An Overview: Kansas Rules of Professional Conduct
The Kansas Rules of Professional Conduct provide the framework for the discipline of lawyers in Kansas. In a 6-month period, the Attorney Regulation Division of the Kansas Supreme Court received 411 complaints about Kansas lawyers. Most of these complaints were dismissed without further action.
The Attorney Regulation Division also issues advisory opinions, which are frequently cited by Kansas lawyers in their legal briefs: "We then adopt those portions of the Legal Ethics Advisory Opinions of the Supreme Court of Kansas published in the Kansas Bar Journal and Commission on Professional Responsibility on Periodic Basis, as set out in the notes under Kansas Rules of Professional Conduct and Kansas Comment in the Kansas Statutes Annotated, which are in harmony with these rules, as interpretations of the Kansas Rules of Professional Conduct."
The Kansas Rules of Professional Conduct are contained in Rule 207(b) of the Kansas Supreme Court Rules. Rule 207(c) provides:
"(c) Citation of Rules. The committee comments that accompany the rules do not constitute the rules or the interpretation of the rules, and are not to be cited as precedent. And in applying and construing these rules, consideration shall be given to the comments thereof, to the Comments adopted by the American Bar Association which preceded the rules as adopted at this time, and to the ABA Model Rules as amended and adopted by the American Bar Association and the interpretations thereof in Kansas and other states."
The Kansas Rules of Professional Conduct are as follows:
Rule 1.0: Terminology
Rule 1.1: Competence
Rule 1.2: Scope of Representation
Rule 1.3: Diligence
Rule 1.4: Communication
Rule 1.5: Fees
Rule 1.6: Confidentiality of Information
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.8: Conflict of Interest: Current Clients: Specific Rules
Rule 1.9: Former Clients
Rule 1.10: Imputed Disqualification: General Rule
Rule 1.11: Successive Government and Private Employment
Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Rule 1.13: Organization as Client
Rule 1.14: Client with Diminished Capacity
Rule 1.15: Safekeeping Property
Rule 1.16: Declining or Terminating Representation
Rule 1.17: Sale of Law Practice
Rule 1.18: Prospective Clients
Rule 2.1: Advisor
Rule 2.2: Second Opinion
Rule 2.3: Evaluation for Use by a Third Person
Rule 2.4: Lawyer Serving as Third-Party Neutral
Rule 3.1: Meritorious Claims and Contentions
Rule 3.2: Expediting Litigation
Rule 3.3: Candor toward Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
Rule 3.5: Impartial Adjudicator
Rule 3.6: Trial Publicity
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
Rule 4.1: Truthfulness in Statements to Others
Rule 4.2: Communication with Person Represented by Counsel
Rule 4.3: Dealing with Unrepresented Person
Rule 4.4: Respect for Rights of Third Persons
Rule 5.1: Responsibilities of Partners , Managers, and Supervisory Lawyers
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.3: Responsibilities Regarding Nonlawyer Assistants
Rule 5.4: Professional Independence of a Lawyer
Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
Rule 5.6: Restrictions on Right to Practice
Rule 5.7: Restrictions on Rights to Practice after Dissolution of Firm
Rule 6.1: Voluntary Pro Bono Publico Service
Rule 6.2: Accepting Appointments
Rule 6.3: Membership and Contributions to Legal Services Organizations
Rule 6.4: Law Reform Activities Affecting Client Interests
Rule 6.5: Nonprofit and Limited Legal Services Programs
Rule 7.1: Communications Concerning a Lawyer’s Services
Rule 7.2: Advertising
Rule 7.3: Direct Contact with Prospective Clients
Rule 7.4: Communication of Fields of Practice and Specialization
Rule 7.5: Firm Names and Letterhead
Rule 7.6: Professional Cards and Legal Specialty Descriptions
Rule 7.7: Communication with a Former Client Who Has Not Retained Another Lawyer
Rule 7.8: Electronic Communication with a Prospective Client
Rule 8.1: Bar Admission and Disciplinary Matters
Rule 8.2: Misappropriation of Client Funds
Rule 8.3: Reporting Professional Misconduct
Rule 8.4: Misconduct and Minor Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
Rule 9.1: Term Definitions.
Rule 9.2: Privilege granted.
Rule 9.3: No discrimination.
Rule 9.4: Costs.
Rule 9.5: Confidentiality of public censure proceedings.
Rule 9.6: Public reprimands public.
Rule 9.7: Presumptive discipline type.
Rule 9.8: Costs assessment against clients.
Rule 9.9: Rule is supplementary to other rules.
Rule 9.10: Standards of review.
Rule 9.11: Cases may be consolidated.
Rule 9.12: Limited bench and final appeals.
Rule 9.13: Additional procedures.
Rule 9.14: Contempt and sanctions.
Rule 9.15: Additional cases.
Rule 9.16: Liability to client.
Rule 9.17: Standards for imposition of sanctions.
Rule 9.18: Aggravating circumstances.
Rule 9.19: Mitigating circumstances.
Rule 9.20: Action by hearing panel.
Rule 9.21: Cease and desist order.
Rule 9.22: Referring cases to Kansas Lawyers Assistance Program.
Rule 9.23: Violation of order; contempt of court.
Rule 9.24: Defense of disciplinary charges.
Core Tenets of the Kansas Rules of Professional Conduct
Some of the fundamental principles under the Kansas Rules of Professional Conduct go to the core of an attorney’s obligations. One such principle is confidentiality, one that is reinforced from the outset in Rule 1.6. Client confidentiality generally means that an attorney must keep any information that was learned through the attorney-client relationship confidential. For example, attorneys who are representing a party in litigation are generally prohibited from disclosing information otherwise protected from disclosure by a court, or an attorney must continue to protect a client’s confidentiality even after representation is terminated (pursuant to Rule 1.9(c)). In addition to the prohibition against revealing information, the rules also prohibit attorneys from using information obtained in a confidential relationship to the disadvantage of a client, or in the interests of a third party. Generally, it is acceptable, and in some cases required, that an attorney disclose information relating to a client, but that causes the necessity to balance competing interests.
An attorney is generally permitted to disclose confidential information to the client, to prevent reasonably certain death, to prevent reasonably certain bodily harm, to prevent or to rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services, to secure legal advice about the lawyer’s compliance with these rules, to detect and resolve conflicts of interest as permitted by Rule 1.10, to comply with other law or a court order, or to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to rescue the attorney’s legal rights to fees.
The second key principle, and one that you may wish to have a grasp on early, is the concept of conflict of interest. A conflict of interest is created when an attorney owes a duty to more than one client, and those clients’ interests are antagonistic towards each other. In situations involving organizational clients, the duties owed by an attorney to the organization level are different than the duties owed to the individual employees and can cause some conflict for the attorney. Even in cases with clients where a conflict might not seem to exist, or for which you may be tempted to ignore, it is important to be aware of the rule and seek formal resolution as needed.
The attorney-client privilege is the third fundamental principle under the Kansas Rules of Professional Conduct. The privilege applies to communications made between an attorney and client made for the purposes of obtaining legal advice. There must be a confidentiality in order for the privilege to survive, and in the case of corporate clients, the privilege can only be claimed in certain circumstances such as when the communication is amongst attorneys in the firm, or an attorney and outside counsel.
Enforcement and Compliance Mechanisms
Compliance with the Kansas Rules of Professional Conduct is monitored and enforced by the Kansas disciplinary authorities, which are the Kansas Supreme Court’s Attorney Discipline Office (ADO), the Disciplinary Administrator’s Office (also referred to as the Kansas Disciplinary Administrator), as well as the Kansas Supreme Court. These agencies are charged with investigating and prosecuting violations of the Kansas Rules of Professional Conduct. The Kansas Supreme Court plays a regulatory role in overseeing these agencies.
The Kansas disciplinary system is administrative, operating independently of the Kansas Supreme Court. Though the Kansas and ABA rules incorporate a mechanism for attorney self-reporting, attorneys are not required to report their own violations. Instead, the Kansas disciplinary system is largely initiated by attorney self-reporting, referrals by the courts or other disciplinary agencies, and complaints by clients and other members of the public.
Prior to the formal filing of a grievance with the ADO, the ADO may investigate an attorney based on information received by the ADO. Upon receipt of a grievance, the Law Firm Grievance Committee may conduct a preliminary inquiry, and their recommendations are forwarded to the Kansas disciplinary administrator. Thereafter, the Kansas disciplinary administrator may conduct an informal investigation, which may involve a report from the Kansas disciplinary administrator to an attorney to which the attorney has thirty days to respond. Those matters that do not warrant formal disciplinary action upon completion of the informal investigation may be closed with no formal follow-up if the matter can be resolved with reporting to the Kansas Supreme Court.
If the matter remains unresolved, is of sufficient substance or poses some potential danger to the public, and the attorney-client relationship is not needed, then formal charges may be filed by the Kansas disciplinary administrator with the summary counsel or chief disciplinary counsel, who serve as counsel to the disciplinary board. If the Kansas disciplinary administrator deems disciplinary action is warranted, the discipline board en banc (acting as a hearing panel) will hear the complaint and then issue a report and recommendation to the Kansas Supreme Court.
Upon mounting evidence of probable discipline considerations, the matter is then assigned to a board panel (one or two members of the discipline board) which conducts the hearing. Also, in cases of informal admonitions, censure, probation, and similar informal proceedings, the procedures used by the board panel and the hearing panel are similar.
In cases of serious professional misconduct, the Kansas Supreme Court may appoint a special master to make findings of fact and conclusions of law based on the hearing panel report and recommendation. A petition to the Kansas Supreme Court ultimately seeks final determination of the matter, and may result in public censure, admonition, probation, suspension, or disbarment.
Recent Amendments and Updates
The Kansas Rules of Professional Conduct were last amended in 2018 with some minor changes that were updated to stay consistent with the national ABA Model Rules. One significant change was the replacement of the terms "informed consent" with the term "consent after consultation."
An amendment was also made to Model Rule 1.8 regarding transactions with current clients, which now requires informed consent for all transaction with "persons closely related to the lawyer." The Kansas rule does not include the language about persons closely related to the lawyer.
Starting in 2019 the Kansas Supreme Court adopted mandatory continuing legal education (MCLE) for every lawyer admitted to practice law in Kansas under Rule 105, 2019 Kan . S. Ct. Rule 104. However, Kansas is still an "opt out" state for MCLE requirement, meaning Kansas lawyers must opt-out of MCLE credits within 30 days of each MCLE reporting period for them to be exempt from any MCLE requirements. The current reporting period in Kansas is January 1 of even-numbered years.
In 2020 the Kansas Supreme Court also adopted Rule 8.4(g) on harassment and discrimination. The rule prohibits lawyers from harassment and discrimination, including sexual harassment and discrimination based on race, national origin, sex, sexual orientation, gender identity, mental disability, or physical disability.
Common Ethical Dilemmas and Cases
Navigating the maze of ethical obligations set out in the Kansas Rules of Professional Conduct (KRPC) can be an arduous and confusing process even for experienced attorneys. The KRPC is described as a plain language effort, but it is still a complex and sometimes convoluted document. Below is a brief selection of common ethical dilemmas faced by attorneys in Kansas and the rules that provide guidance on how to navigate these situations.
Conflict of Interest
Scenario 1: You go to lunch with a friend and, over drinks, he tells you he was arrested for murder. He wants to hire you to defend him. You know your friend is guilty and you find his case interesting and want to defend him. Can you?
Scenario 2: The opposing counsel is the brother of your spouse. Your spouse offers to help with the case. The offer would involve sharing costs and splitting the fee with your spouse and brother-in-law. Can you accept the case?
The Key Rule: KRPC 1.7(1) draws an unqualified line against representing concurrent clients with direct opposing interests unless there is written consent from all affected clients after adequate discussion and consultation. If your friend is seeking a guilty plea or advising him not to incriminate himself in front of police, then you must decline the representation. If the circumstances change and your friend chooses to go to trial and testify to a story of innocent, you may be able to represent him, but may not be allowed to pursue a defense of greater provocation.
The Key Rule: KRPC 1.8(c) clearly prohibits an attorney from sharing fees with anyone, regardless of the relationship, unless outside counsel receives reasonable compensation, agrees in writing on the division, and the names of the sharing lawyers are disclosed. This includes your spouse and brother-in-law. Sharing fees with your friends and colleagues is a violation of KRPC 1.5(e) unless the fees are divided in proportion to the work performed or with written consent of all clients. Sharing fees in Kansas is a regulatory minefield and can only be avoided by individuals complying strictly with the rules. Ignorance of the rules is not an excuse; the disciplinary system is unforgiving.
Scope of Representation
Scenario 1: The client’s house has been foreclosed upon and the sale of the home has been delayed. The sale is set for next week until the underlying loan is paid off. You file several motions and pleadings to stop the sale and delay it temporarily, assuring the client you will get this ironed out quickly to allow the sale to move forward. The judge then issues a stay of the sale. After that, the judge refuses to extend the stay, and the house sells in the next few weeks. Is the client’s expectation of your promise enforceable? Could you be held liable? What is the duty you owe to the client, and to the court?
Scenario 2: The client is a partner at a local accounting firm. During the representation of the client’s divorce, the client gives the accountant all of the information regarding his wealth and business. He provides the attorney with the information and says, "Please keep this between us and don’t tell the court about this." How are you to handle this situation?
The Key Rule: KRPC 1.3 cmt. 2 discusses what it means to act with reasonable diligence and promptness. More than simply being late to court, you need to be aware of the scope and timeline of the representation, including accepting a reasonable fee, discovery and investigation responsibilities, and the level of knowledge expected of the attorney. KRPC 1.2 covers the concept of scope in a little greater detail. KRPC 1.2(c) states "[A] lawyer may limit the objectives of the representation if the client gives informed consent." In addition to consulting with the client to manage and amend the scope of representation, the attorney must also prioritize higher obligations such as the rule of law and public confidence in the justice system, and account for strategies that have little to do with winning the case. You owe a greater duty to the justice system than you do to the client. You have a duty as an attorney to attempt as best you can to achieve the result that the client seeks, but some times that is not possible under the law. Consequently, what you believe the client wants may actually be against the client’s best interests and against the rules. You are charged with knowing the law and the client is not, so it is your responsibility to advise the client against short-term wins in favor of longer-term success. In the end, you may have to inform the client that it is not feasible to pursue their case as requested.
The Key Rule: KRPC 3.3 cmt. 5, addressing candor toward the tribunal, states, "It is the lawyer’s obligation to be honest with the Court. . . . The prohibition against deceiving or knowingly misrepresenting to the Court, applies equally to supplying false information . . . or concealing information from the Court when required by law except when client confidentiality is involved. . . . The obligations will be more serious when the deception goes to the very heart of the adjudication." The duty to be honest with the court and the duty to keep client confidences are often at odds. When the attorney feels that the client is withholding information from you while pursuing a certain line of action, as the attorney you must step in and inform the client that this is not permissible.
KRPC 3.3(a)(3) specifically obligates you to "reveal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." This means that you cannot consciously suppress known problems and then seek to resolve them via a settlement. Absent the client’s informed consent, you cannot encourage client dishonesty.
Legal Resources
For Kansas legal professionals looking to further their understanding of and compliance with the Rules of Professional Conduct, there are numerous resources available to assist them. The Kansas Supreme Court’s website features the full text of the Kansas Rules of Professional Conduct, including any updates or changes that may be made. Legal professionals can also find additional resources such as the Kansas Rule Annotated and opinions issued by the Legal Ethics Advisory Panel. The Kansas Judicial Center is another valuable resource for legal professionals, providing access to judicial ethics opinions, case law, and rules related to judicial conduct. It can be a helpful tool for judges, lawyers, and other legal professionals who want to better understand the judicial rules and regulations in the state. To further their education on the Rules of Professional Conduct, lawyers can participate in various CLE programs offered by organizations such as the Kansas Bar Association , and local bar associations. These programs cover topics such as legal ethics rules and recent developments in the law. Many are available on-demand and cover important topics ranging from managing client funds to working with medical records. Professional organizations such as the Kansas Bar Association, local bar associations, and the Association of Professional Responsibility Lawyers (APRL) offer additional resources and support to legal professionals in Kansas. They provide members with access to networking opportunities, resources on ethical rules and disciplinary matters, and training on maintaining high standards of professional responsibility. Additionally, these organizations often work closely with the state bar to help maintain ethical conduct standards and educate members on the importance of adhering to the Rules of Professional Conduct. Overall, the resources available through these and other trusted professional organizations can help legal professionals navigate the complex landscape of legal ethics and ensure that they are in compliance with the Rules of Professional Conduct at all times.