Kobach's Behavior During Recent Trial Prompts Ethics Complaint From Overland Park Lawyer | KCUR

Kobach's Behavior During Recent Trial Prompts Ethics Complaint From Overland Park Lawyer

Mar 28, 2018

Kansas Secretary of State Kris Kobach committed ethical violations during the just-completed trial over the state’s voter registration law, a Kansas immigration lawyer alleges in a bar complaint.

Matthew Hoppock, who practices in Overland Park, said he was duty-bound to file the complaint as an officer of the court.

“I have to,” he told KCUR. “Any licensed attorney in Kansas who thinks another attorney has broken the rules is required to.”

Bar complaints are not a matter of public record until they have been investigated and often are not publicly disclosed. But Hoppock, who said he followed news accounts of the trial, telegraphed his intentions in a series of tweets as the trial neared its conclusion.

Although he declined to spell out the contents of his bar complaint, Hoppock’s tweets made clear he believes Kobach violated at least four of the Kansas Rules of Professional Conduct, the canons governing attorney behavior:

  • By acting as an attorney and serving as a fact witness in the same case, Kobach violated the rule that bars lawyers from acting as advocates at a trial in which they themselves are witnesses.
  • Because U.S. District Judge Julie Robinson found before the trial that Kobach had made “patently misleading representations to the court,” Kobach violated the rule prohibiting attorneys from knowingly making false statements to the court.
  • By missing filing deadlines, Kobach violated the rule requiring attorneys to “act with reasonable diligence and promptness in representing a client.” 
  • Because he was repeatedly chastised by the judge for running afoul of evidentiary rules during the trial, Kobach violated the rule requiring attorneys to “provide competent representation to a client.

Through his chief of staff, B.J. Harden, Kobach declined to comment on Wednesday.

It typically takes months for a bar complaint to wind its way through the multi-step disciplinary process. The complaint can be dismissed if it's found to be without merit or, at the other extreme, the lawyer can be disbarred. 

Hoppock said that while he personally opposes the Kansas proof-of-citizenship law that Kobach spearheaded and defended at trial, Kobach’s performance during the trial suggested he’s unable to adequately represent the interests of the state.  

“As a citizen, I've spoken out a bit about Kobach because it's hard to watch this trial. He's not a trial lawyer. I don't think he's stupid. He's obviously a smart guy. But he shouldn't have tried this case because he doesn't know the skills you need to be a trial lawyer wherever you fall on the political spectrum,” Hoppock said.

“I live in Kansas and he's representing me in that trial and every time he raises an objection late, files documents late or brings in a witness that's not qualified, it hurts Kansas citizens’ interests because if we really have an interest in protecting our statutes, the guy that's defending them doesn't seem to know what he's doing.”

The Kansas disciplinary administrator's office has a multi-step process for dealing with all complaints filed over lawyers' conduct, as detailed on its website: 

Once a complaint has been filed, the local bar association or the staff of the disciplinary administrator conducts an investigation. A committee consisting of three lawyers is then assigned to review the complaint and investigative report. If it finds the complaint to be without merit, it can dismiss it.

If it finds probable cause to believe the lawyer violated any of the disciplinary rules, the matter becomes public and records are open to the public. The committee can informally admonish the lawyer and the matter ends there. If it deems stronger disciplinary measures are necessary, it can direct the disciplinary administrator to prepare a formal complaint.

The lawyer then has a chance to respond and the matter goes before a hearing panel consisting of three lawyers. After a hearing, the panel can dismiss the complaint or recommend disciplinary measures, including public censure, probation, indefinite or definite suspension of the lawyer’s license and – the most severe punishment – disbarment.

The case then goes to the Kansas Supreme Court, which can adopt or disregard the recommendations of the panel or the disciplinary administrator.

Records show that 15 lawyers were disciplined in Kansas in 2017. Ten were disbarred, two were publicly censured, one was given a two-year suspension, one was given a one-year suspension and one was given an indefinite suspension.

Hoppock said he had mixed feelings about filing his complaint.

“I mean, attorneys get a bad rap for good reason a lot of the time – for being dishonest, for waiting until the last minute, for being procrastinators, for not doing a good job,” he said. “You hate to see an attorney, any attorney, go into court and behave that way. It is highly uncommon for a federal district court judge to dress somebody down like it appears Judge Robinson did in that contempt hearing.”

Hoppock was referring to Robinson’s anger over having to monitor whether Kobach has complied with her orders. The ACLU, which represents the Kansas plaintiffs who sued over the voter registration law, has asked Robinson to hold Kobach in contempt for allegedly failing to obey her May 2016 order to fully register would-be voters.

Talking with reporters at a campaign stop following the trial, Kobach defended his office's efforts to comply with the order. 

"You couldn't come away from that hearing without seeing how Kansas had bent over backward to comply with the judge's orders," Kobach told reporters. "The focus of that was once ... the secretary of state's office conveys directions to the counties in the three weeks or four weeks running up to an election, there are a lot of directions going out at the busiest time of year and sometimes not all of the instructions end up happening. But no, I don't think you can come away from that thinking the staff of my office did anything but their best work ..."

Robinson has yet to issue her ruling, which may come in her broader decision about the legality of the law itself. She isn’t expected to render her opinion until the middle of April or later.

This isn’t the first bar complaint filed against Kobach. In July 2017, the Kansas Office of the Disciplinary Administrator, which handles bar complaints, opened an investigation into Kobach after Topeka resident Keri Strahler filed a complaint alleging misconduct, according to a story in The Kansas City Star. At the time, Strahler was a student at Washburn University.

The Star reported that Strahler alleged Kobach had defied orders from Judge Robinson in the voter registration case. Federal Magistrate Judge James O’Hara later fined him $1,000.  

Strahler could not be reached for comment.

Stan Hazlett, the Kansas disciplinary administrator, said he was unable to  say what had become of the complaint.

“The point at which any complaint would become public is when we send it to the review committee, which is a committee of three lawyers, and if they make a finding that there’s probable cause to believe that rules have been violated, at that point in time it would be public information,” Hazlett said. “But up until that time, I can’t confirm or deny or comment on anything that’s in the office.”

Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.