Did ethics case constitute 'crying in baseball'? Kansas supremes debate discipline as 'sword'
Actors Tom Hanks and Bitty Schram in "A League of Their Own." The 1992 film was referenced in a recent decision by the Kansas Supreme Court. (Photo from MovieStillsDB)
Updated: A Kansas attorney has received a six-month stayed suspension for making “inflammatory attacks” on an opposing counsel and including “irrelevant information” in a court filing intended to diminish his client’s estranged wife.
The Kansas Supreme Court disciplined lawyer Eric M. Gamble in a Nov. 8 decision that provoked dissenters to argue that the ethics case was “blatantly unfair and illogical.”
“It is hard to avoid the conclusion that once again our ethics rules are being used to chill and discourage the kind of vigorous advocacy that our system of justice needs,” argued Justice Caleb Stegall in a dissent joined by two other justices.
The dissent argued that disciplinary authorities were “wielding” the ethics code “as a sword rather than a shield” that leads targeted attorneys to capitulate. The discipline defense bar has embraced “a strategy of falling on that sword to achieve a favorable recommendation” from disciplinary authorities and to avoid facing additional allegations, the dissent said.
Gamble and disciplinary officials had jointly stipulated to a disciplinary violation and findings of fact. They stipulated that his actions “were objectionable, unnecessary, inappropriate advocacy, prejudicial to the administration of justice and unethical,” the majority said.
The disciplinary case stemmed from a contentious family law dispute. Gamble represented the husband, while the wife was initially represented by her sister, “D.L.R.,” and the sister’s associate, “J.D.,” who took over the case after the sister withdrew.
The wife had taken the children from Utah to Kansas, where the sister lived. According to the dissent, the wife’s extended family was part of a “breakaway Mormon sect” that moved from Utah to Mexico in the 1800s when Utah outlawed polygamy.
The family in Mexico “was entangled in a violent milieu,” the dissent said. In November 2019, nine members of the wife’s extended family, including six children, were murdered in Mexico by drug cartels.
The wife’s desire to take the children to Mexico “became the animating disagreement at the heart of the legal drama,” the dissent said.
The wife obtained a protection-from-abuse order in Kansas after alleging that her husband had behaved in a threatening manner by placing a gun in his waistband. He said he was merely carrying his legally owned gun to his truck.
J.D. sought an order to sell the marital home in Kansas. In a January 2020 email to the court and the opposing counsel, Gamble wrote that there was no jurisdiction or venue in the Kansas county where the wife was litigating.
“As much as [J.D.], her boss, and her client would like to shove this matter forward at light speed and sell the parties’ home, I haven’t even had the chance to file my answer yet,” Gamble wrote. The Kansas county “does not have any connection with this matter other than [D.L.R.] wanted it filed there in order to have a home court advantage for her sister. It’s called forum shopping at its finest.”
In court filings, Gamble included D.L.R.’s home address, made “unnecessary and objectionable remarks about D.L.R. and her family, and he attached newspaper articles regarding D.L.R.’s extended family,” the parties’ stipulation said. Gamble could have effectively argued his client’s position without including that information, according to the stipulation.
Gamble’s court filings sought relief from a protection order and reconsideration of court findings.
The dissent said Gamble included the lawyer’s home address because he alleged that the wife was living with D.L.R. in a different county than the one in which she filed her family law actions. He included newspaper clippings about the violence in Mexico to explain the broader factual circumstances.
Gamble sent an email to the family law court that sought immediate action, on the court’s accord, “to remedy the harm that has been done to my client and these minor children.” The court didn’t act and instead gave the wife the opportunity to respond.
In a hearing on one of Gamble’s motions, he did not call witnesses or offer exhibits to establish the allegation that she made.
The dissent likened contentious litigation to baseball and said disciplinary authorities should take to heart actor Tom Hanks’ admonition in the 1992 movie A League of Their Own that “there’s no crying in baseball.”
“Litigation—not unlike baseball—is an intense activity,” the dissent said. “Stressful. Demanding. Pitches thrown high and tight. Bang-bang plays. Split-second rulings by the umpires. And some occasional dust kicking. But there is no crying.”
The majority did not like the analogy.
“Equating a disciplinary complaint with ‘crying in baseball’ reduces the honorable and ethical duty of our profession to self-regulate into a toddler’s outburst,” the majority said.
“Within appropriate contours,” the majority wrote, “aggression is no vice in litigation. But those contours lie at the heart of the practice of law; without them, litigation would largely recapitulate a nonviolent form of absolute war, where maximum ends justify maximum means. But law, despite its common depiction in popular media, is not war. The practice of law, much like adherence to the law, begins with respectful conduct; it is the soil from which justice—and, thus, civil society as a whole—grows.”
Following the six-month stayed suspension, Gamble will be placed on a year of disciplinary probation, and his practice will be supervised by another lawyer. He will also be required to send a letter of apology to the opposing counsel.
Gamble gave this statement to the ABA Journal: “Being a lawyer is a privilege, and I am grateful for the opinion of the court. The decision reflects the harsh reality that litigators must be aware of the risks that come along with challenging the status quo. As I stated at oral argument to the court, I was not perfect in my representation but handled the case to the best of my ability. I am honored that I can continue to represent those in need.”
The Legal Profession Blog published highlights from the opinion, while the Kansas Reflector has coverage.
See also:
Lawyer is suspended for ‘intentional bullying tactics’ in Facebook message
Updated Nov. 18 at 3:05 p.m. to add statement by lawyer Eric M. Gamble.
