State v. Turner

• Decision Date: 17 July 1975
• Docket Number: No. 47592,47592
• Citation: 87 A.L.R.3d 337,217 Kan. 574,538 P.2d 966
• Parties: , 87 A.L.R.3d 337 STATE of Kansas, Petitioner, v. H. Lee TURNER, Respondent.
• Court: Kansas Supreme Court

Page 966

538 P.2d 966

217 Kan. 574, 87 A.L.R.3d 337

STATE of Kansas, Petitioner, v. H. Lee TURNER, Respondent.

No. 47592.

Supreme Court of Kansas.

July 17, 1975.

Michael C. Cavell, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the petitioner.

William A. Hensley of Turner & Hensley, Chartered, Wichita, argued the cause and was on the brief for the respondent.

PER CURIAM:

This is an original proceeding in discipline against the respondent, H. Lee Turner. Mr. Turner is a member of the bar of this state. Since 1952 he has been engaged in the practice of law in Great Bend, Kansas.

In the fall of 1973 an amended complaint with four counts was filed against Mr. Turner. At a hearing before a three-man hearing panel of the State Board of Law Examiners, counts I, II and IV were dismissed. As to count III, the panel found respondent had violated the Code of Professional Responsibility, Supreme Court Rule No. 501, 214 Kan. lxxv-ciii, and recommended discipline by public censure.

Count III of the complaint is drawn in the following language:

'In the case of Cheryl K. Smith v. Dorothy I. Cropp, in the District Court of Barton County, Kansas, No. 23680, H. Lee Turner did during the trial of such case, while acting as plaintiff's counsel, verbally abuse and improperly attack defense counsel and did interject improper statements during examination of witnesses.'

As to count III the hearing panel concluded that 'respondent as attorney for the plaintiff in the case of Smith vs. Cropp, District Court of Barton County, Kansas, was in violation of the code of professional responsibility (hereafter referred to as the Code) in that:

'1. He did engage in conduct during the course of that trial (Smith v. Cropp) that is prejudicial to the administration of justice, contrary to the provisions of DR 1-102(A)(5); and '2. He did engage in undignified and discourteous conduct which is degrading to a tribunal in violation of DR7-106(C)(6).'

The Board of Law Examiners approved the report of the hearing panel, denied a motion for rehearing and recommended that respondent be disciplined by public censure. The respondent has filed exceptions to the report, findings and recommendations of the Board, as is authorized in Supreme Court Rule 208(c)(2) (214 Kan. lix). In this posture the matter came before this court and was set for hearing. Comprehensive briefs have been submitted, oral arguments have been presented, and the cause now stands for decision.

The charge in count III grows out of the respondent's conduct during trial of a civil action, Cheryl K. Smith v. Dorothy I. Cropp, No. 23,680, in the district court of Barton County, Kansas, the Honorable Herb Rohleder presiding. The plaintiff recovered a large judgment. The defendant appealed to this court where the action was revived against James L. Blakey, administrator of Mrs. Cropp's estate. On appeal the judgment was reversed, the opinion being reported as Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062. One of the grounds of reversal was misconduct on the part of plaintiff's counsel, Mr. Turner. We will refer to this case as Smith or the Smith case.

Judging from the files of the present proceeding it appears the state introduced no testimony, either oral or by deposition, offering only the record, the briefs and the opinion in the Smith appeal. The record in that appeal is replete with language used by Mr. Turner which the Board deemed was improper and abusive of opposing counsel, Mr. James Mize. Many of the offensive utterances were in connection with objections interposed during Mize's examination of witnesses and they culminated in respondent's final summation to the jury. We will not burden the body of this opinion with a verbatim account, but a representative sampling of respondent's language as well as verbatim portions of his final summation are attached in a short appendix.

Mr. Turner filed eight exceptions to the Board's report. They are copiously covered in his brief and pertain to matters both of substance and of procedure. Consideration will be given each, seriatim.

Point one is essentially directed toward the sufficiency of evidence and related peripheral matters. The respondent correctly points out that Supreme Court Rule 207(l), 214 Kan. lviii, requires that charges of misconduct be established by substantial, clear, convincing and satisfactory evidence. This rule asserts our case law as expounded in In re Ratner, 194 Kan. 362, 366, 399 P.2d 865, In re Phelps, 204 Kan. 16, 17, 459 P.2d 172, and earlier cases cited therein. We cannot agree, however, that the evidence before the panel was insufficient to establish the verbal statements on which count III was based. Those statements, alleged to be abusive and improper, were clearly reflected in the appellate record filed in the Smith case.

Respondent argues however that while the Smith appellate record was admitted in the evidence, its contents were hearsay, citing The People v. Amos, 246 Ill. 299, 92 N.E. 857. Amos is easily distinguished since the record in that case contained testimony of witnesses concerning the conduct of the attorney, Amos. The Smith record is a cat of a different breed; it reflects directly what the respondent himself said, not what other parties said he said. The Illinois Supreme Court recognized this distinction in the later case of In re Ellis, 371 Ill. 113, 20 N.E.2d 96, where a transcript which recorded the attorney's testimony in a civil action, was admitted as evidencing an admission against interest on his part. The rule espoused in Ellis was followed in In re Nelson, 79 N.M. 779, 450 P.2d 188, where the respondent objected to the use of his own testimony in a former civil action. The New Mexico court said:

'The objection is not well taken. The transcript was admittedly correct and complete, it is fully proper, and, if admissible for no other reason, it is certainly admissible as an admission by a party against his interest and therefore competent evidence. . . .' (p. 781, 450 P.2d p. 190.)

Not only was the appellate record in Smith competent and sufficient evidence to support the findings of the panel, but the respondent himself, in his testimony, freely admitted having made many, if not all, the statements attributed to him. As we view the record in this disciplinary proceeding there is no lack of substantial competent evidence on the substantive issue of what statements were made by respondent during the Smith trial.

In his brief, the respondent insists that the state took the position that the reversal of Smith v. Blakey, Administrator, supra, was conclusive as to the issue of 'conduct that is prejudicial to the administration of justice.' We know not what stance the state took at the hearing, but we do not understand its present position as being that Smith v. Blakey, Administrator, supra, is res judicata so far as this disciplinary proceeding is concerned. Nor did this court intend, in Smith, to pronounce judgment as to the respondent's ethics, as we believe was made clear in the language 213 Kan. on page 96, 515 P.2d page 1067:

'. . . We are not concerned in this proceeding with discipline for violations of our Code of Professional Responsibility (Kansas Supreme Court Rule No. 501, 209 Kan. lxxiv), except as the actions which may constitute violations relate to the issue of a fair trial. . . .'

The respondent asserts that fidelity to his client's cause impelled him to employ harsh tactics. In this connection he has cited the opinions expressed by two eminent and respected members of the district bench, the Honorable Albert B. Fletcher, Jr. and the Honorable C. E. Birney, who testified that under the attending circumstances-which they indicated were provocative and due in large measure to the failure of the trial judge to keep the trial fully under control-the conduct of Mr. Turner did not contravene provisions of the Code.

True it is, that lawyers are enjoined to act with fidelity to the cause of their clients. Canon 7 of the Code recites: 'A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.' Mr. Turner, in representing Mrs. Smith in her lawsuit for personal damages sustained in a car accident, vigorously contended that opposing counsel employed by the insurance carrier to represent the insured was improperly protecting her best interests because of a conflict of interest on his part. Moreover, the respondent asserted that Mize was violating an order in limine.

We will not go into the merits of Mr. Turner's complaints against Mr. Mize, or to the controversy which boiled between them. Suffice it to say that Canon 7 does not countenance unrestrained zeal on the part of an advocate; his ardent zeal, commendable in itself, is to be exercised within the bounds of the law. We do not apprehend, as respondent seems to fear, that the decision of the Board, logically extended, would subject a zealous advocate to charges of misconduct whenever he might cause or contribute to trial error. The question posed in this proceeding is not whether error inhered in the Smith trial but whether respondent was guilty of unprofessional conduct. The Board found, in effect, that the respondent had exceeded permissive legal limits.

In the disbarment action of In re Macy, 109 Kan. 1, 196 P. 1095, Mr. Macy was charged, among other acts of impropriety, with having filed an answer accusing the plaintiff, a Liberal attorney, of criminal conduct. The court's language is expressive:

'It is an attorney's duty to protect the rights of his client, but it is likewise an attorney's duty to refrain from doing an intentional wrong to the adverse party. . . . An attorney at law in the preparation and trial of an action in court represents his client, but he does more than that-he is there, not only as an advocate, but also as a person trusted and authorized by the state to assist the court in determining what is...