An Uncivil War in a Small Kansas TownTopic:
A lawyer for a municipality owes the same duty of confidentiality to a client as does a lawyer in private practice.
There is nothing quite like a civil war in a small town.
David J. Harding was admitted in Kansas 1974. From 1978 until early 2007, he served as the municipal attorney for WaKeeney, Kansas. WaKeeney, sitting just off Interstate 70, boasts a population of 1,924 people.
The Calm before the Storm. In 1978, Harding requested that he be allowed to participate in the Kansas Public Employees Retirement System (“KPERS”) by virtue of his employment with the City. The City Council considered and approved his request. For his city work, he received a monthly retainer and also charged the municipality an hourly fee for the legal work he performed. In 2006, he requested that the City pay his hourly fees through its payroll department so that the hourly fees could be considered as KPERS income. As a result of his request, Charlene Neish, a City Councilwoman, began to research the subject. Ms. Neish believed “that the City had been contributing to KPERS for [Harding] for over twenty-seven years even though he was not eligible.” That was the first shot. Things got much messier. At a City Council meeting, a member made a motion to have Harding continue receiving KPERS with the City. The motion died for a lack of a second.
Harding Fires Back
. He claims to have discovered that certain City Officials were using City property, or allowing their associates to use City property, for their personal benefit. He called Tom Drees, County Attorney for Ellis County, Kansas. Harding disclosed information to Drees regarding the City Officials that he had obtained by virtue of his attorney-client relationship with the municipality. Harding discussed whether the Officials had violated the law. Drees instructed him to telephone the lawyer regulator to determine what obligations Harding had in the matter. He then called the Disciplinary Administrator's office to discuss the ethical obligations that he owed to the City and to City Officials. He was advised by the Disciplinary Administrator’s staff about the obligations that a lawyer owes to an entity client that are embodied in Rule 1.13. He received very able advice, namely to start discussing the issues regarding what he perceived to be illegal conduct with the entity constituents, to wit, the Mayor and the City Administrator. He apparently listened to the advice, but did not really understand the full import of the ethics rule. That same day, Harding arranged to meet with the Mayor and the City Administrator. At their meeting, Harding confronted the Mayor with allegations of illegal conduct that concerned the mayor. Specifically, Harding discussed whether the Mayor had allowed his family and friends to use City equipment. Harding’s allegations so upset the Mayor that the Mayor offered to pay $50 for the use of the City equipment. Harding refused to accept the $50 and informed the Mayor that there was going to be an ‘inquisition’ to investigate possible criminal charges.
Hostilities Continue to Escalate
. As a result of Councilwoman Neish’s research, the City removed Harding from KPERS participation. The City reasoned that, in order to be eligible to participate, a public employee had to work 1,000 hours or more per year. Ultimately, the City concluded that Harding was not eligible to participate in KPERS in six specific years in which he performed legal services. Coincidently, at a City Council meeting, the City Council had a discussion regarding the usage of cell phones provided by the City to City Officials. Apparently, the Mayor and the Chief of Police had exceeded their allotted minutes and, as a result, the City incurred additional charges. Harding did not participate in the discussion, but obtained a copy of cell phone records at the conclusion of the meeting. Following the Council meeting, Harding met with Drees. Harding said that Drees should investigate the purported wrongdoing by City Officials, including Ms. Neish, the Mayor and the Chief of Police. Drees agreed to investigate the purported wrongdoing. During their meeting, Harding provided Drees with information and documents relevant to any investigation. Specifically, he provided Drees with confidential information that he obtained through his attorney-client relationship with the City and City Officials. He also provided Drees with a copy of the cell phone records that he obtained at the conclusion of the earlier City Council meeting. County officials thereafter appointed Drees to be a special prosecutor and investigate Councilwoman Neish, the Mayor, and the Chief of Police.
. At a January 2007 City Council meeting, the City Council voted to stop paying Harding his monthly retainer. Instead, the Council agreed to pay him only $100 per hour for his legal services. Additionally, at that meeting, the Mayor and the Chief of Police presented the City Council with letters requesting that the City pay their costs associated with defending themselves in the special prosecutor’s investigation that Harding had instigated. Later, Councilwoman Neish sent a letter to the City Administrator asking the City to pay the costs associated with defending herself in the investigation. Harding obtained a copy of Ms. Neish's letter and immediately forwarded the letter to Drees and, not leaving well enough alone, circulated it to the local media, the Hays Daily News. At the February 2007 City Council meeting, Ms. Neish discussed with the Governing Body the possibility of having an audit performed concerning the City's withholding past KPERS payments for non-qualified individuals. The Council voted to have an audit performed. The Mayor then discussed Harding's ‘conflict of interest’ and his apparent failure to provide legal advice on matters that he was investigating. Thereafter, the City Council voted to appoint a Special City Attorney and a Special City Prosecutor for an interim period.
Take No Prisoners
. On March 8, 2007, the Western Kansas World published a letter that Harding wrote to the paper. The confidential information included in his letter to the editor was obtained by Harding through his attorney-client relationship. The letter provided, in relevant part, a catalog of the sins that Harding perceived were committed by his fiduciaries:
Originally the use of the city truck by an employee of Ms. Neish for approximately three weeks and use of a city truck by the Mayor for his son-in-law were the only known transgressions. The Mayor, at a meeting with the City Administrator and myself, was advised to stop such actions. The Mayor did not deny the use of the trucks and the only reason he gave was that it was owed because of the numerous hours of donated time to the city by this individual. At no time did the Mayor state that city council had given prior approval. The Mayor did slap down a $50 bill on the table…Ms. Neish did try to rewrite the city minutes six months after the fact….The Chief of Police did pay $60 in 2002 for some city rock. In 2006, on a Saturday evening, the Chief of Police loaded city rock on private equipment and dumped it on the alley beside the Methodist Church and in a roadway behind the trees north of the Church. The alley is also adjacent to the Chief of Police's home. The Mayor at a city council meeting admitted giving the Chief of Police permission to do this. It would be worthwhile to drive the alley and roadway adjacent to his home and behind the Methodist Church…The Mayor did give away a usable fire hydrant. When asked about the fire hydrant by the City Administrator, he denied knowledge. Once the location of the fire hydrant was discovered, the City Administrator told him to return it to the possession of the City. The Mayor did as he was told and returned the fire hydrant to the City…Special privileges have been given to some, but not to all. No citizen should stand above another….
Shortly before the 2007 mayoral election, Harding sent a letter to the citizens of WaKeeney, in which he claimed, in relevant part:
…At this point, the "open public City Council Meeting" is a joke. It will remain a joke until the irresponsible officials are removed that believe that two or three of them can make better decisions in private for the citizens of WaKeeney than the Council as a whole could make in an open, honest public meeting. These irresponsible public officials have made a mockery of "public" City Council Meetings. They have stacked the deck against ever having an honest, open City Council meeting by allowing themselves the right to "rig" the issues and the outcome in private…If you think it's time to bring OUR city business back into an open public forum, take advantage of your right to vote and vote for CHANGE. Vote to elect responsible public officials that want to serve, and believe they should serve, in full view of the public, like it was always meant to be. At this point, changing public officials is the only way to stop the irresponsible behavior, poor judgment, and backroom politics that is currently common practice in the City of WaKeeney.
The Mayor lost the election.
The Nuclear Option.
The Mayor filed a grievance against Harding with the Disciplinary Administrator. Formal disciplinary charges were lodged against him alleging that he had violated client confidentiality and had failed to represent an entity client in an ethical and appropriate manner. The Kansas Supreme Court agreed with the Disciplinary Administrator and disciplined him. The court, however, disagreed with the Administrator’s recommended sanction of a censure and suspended Harding for ninety days.
War Trial after the Conclusion of Hostilities
. The Court believed that Harding knowingly violated the duty of confidentiality that he owed to a client and that he had caused actual injury. Moreover, his conduct was motivated by anger and selfishness. On more than one occasion, he publicly revealed confidential information that he had obtained while representing his client. Through his efforts, much of the confidential information surfaced in the local newspaper. Further Harding, through the special prosecuting attorney, was able to initiate an inquisition concerning activities of certain city officials. The inquisition was subsequently dismissed by a district court. Within the community of WaKeeney, his client suffered injury and, according to the Supreme Court, certainly the reputations of some council members were damaged by his misconduct. The Court noted that he was motivated to engage in misconduct because the City made inquiries as to whether he qualified for participation in KPERS. The inquiry threatened his KPERS benefits, and Harding set out to undermine the reputation of certain city officials responsible for the KPERS inquiry.
The case is
In The Matter of David J. Harding
, No. 103,195 (Kansas, January 22, 2010).
JAMES J. GROGAN, DACC, Illinois ARDC