IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 86,384
In the Matter of JOHN LLOYD SWARTS, III,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed September 14, 2001. Supervised probation.
Alexander M. Walczak, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the brief for petitioner.
Zachery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the brief for respondent, and John Lloyd Swarts, III, respondent, argued the cause pro se.
Per Curiam: This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent John Lloyd Swarts, III, of Fort Scott, Kansas, an attorney admitted to practice law in Kansas.
This matter was heard by a duly appointed panel of the Kansas Board for Discipline of Attorneys on August 30, 2000, which rendered a comprehensive and factually explicit 26-page report, making specific findings of fact and conclusions of law.
Respondent was charged by the Disciplinary Administrator in seven separate counts: Count 1, State of Kansas v. Billy Joe Gray; Count II, Awbrey Hawpe; Count III, Mark Briggs; Count IV, Dale Leland Gardner, Jr.; Count V, Raul Reyes and juveniles; Count VI, "Board of Discipline"; and Count VII, State v. Weeter.
The Disciplinary Administrator alleged the respondent violated KRPC 1.1 (2000 Kan. Ct. R. Annot. 300) (competent representation), KRPC 3.3 (2000 Kan. Ct. R. Annot. 385) (candor toward tribunal), KRPC 3.4(c) and (e) (2000 Kan. Ct. R. Annot. 389) (fairness), KRPC 3.8 (2000 Kan. Ct. R. Annot. 397) (special responsibilities of a prosecutor), and KRPC 8.4(a), (d), and (g) (2000 Kan. Ct. R. Annot. 420) (misconduct) in Count I; KRPC 8.4(a) in an attempt to violate KRPC 3.3 and 8.4(c) (candor and misconduct), in Count II; KRPC 1.1, KRPC 3.7 (2000 Kan. Ct. R. Annot 395) (lawyer as witness), KRPC 4.2 (2000 Kan. Ct. R. Annot. 400) (communicating with person represented by counsel), and KRPC 8.4(a), (d), (e), and (g) in Count III; KRPC 3.8(c), KRPC 4.3 (2000 Kan. Ct. R. Annot 401) (dealing with unrepresented person), and KRPC 8.4(d) in Count IV; KRPC 8.4(d) and (g) in Count V; KRPC 3.5(d) (2000 Kan. Ct. R. Annot. 392) (undignified or discourteous conduct degrading to tribunal), and KRPC 8.4(d) and (g) in Count VI; and KRPC 3.5(d), KRPC 8.4(d) and (g), and KRPC 3.8(a) in Count VII.
The respondent stipulated to the facts set forth in the formal complaint as amended by his answer. Respondent also stipulated to violations of KRPC 1.1, 3.4(e), 8.4(a), (d), and (g) in the Gray case (Count I). Respondent presented testimony in his own behalf, the matter was argued by the parties, and the hearing panel found by clear and convincing evidence as follows:
"FINDINGS OF FACT
"1. John L. Swarts, III (hereinafter 'the Respondent') is an attorney at law, Kansas Attorney Registration No. 11994. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Fort Scott, Kansas. . . . .
"2. In 1994, the Respondent was appointed to serve as the Bourbon County Attorney, replacing Michael Coffman, who had resigned from office to return to the private practice of law. From 1994, through the present time, the Respondent has remained as the Bourbon County Attorney.
"Gray Case
"3. On July 21, 1994, the Fort Scott police were called to Bobby Joe Gray's apartment on two separate occasions within a relatively brief period of time. Based upon the information obtained, a search warrant was issued and executed upon Mr. Gray's apartment. Items seized from various locations throughout the apartment included a small amount of marijuana and seeds, numerous items of drug paraphernalia, including syringes and spoons, and items indicative of drug trafficking.
"4. Kimberly Tindel, Mr. Gray's live-in girlfriend, and Carla Ragan, a friend and neighbor of Mr. Gray, were charged with drug offenses. Later, Mr. Gray was also charged with drug offenses.
"5. Generous plea agreements were made with Ms. Tindel and Ms. Ragan in exchange for their testimony against Mr. Gray. At trial, the Respondent relied heavily on the testimony of Ms. Ragan and the theory of constructive possession by Mr. Gray. Ms. Tindel's testimony was favorable to Mr. Gray. Suffice it to say, the evidence against Mr. Gray was not overwhelming.
"6. The jury convicted Mr. Gray, and he appealed his convictions to the Kansas Court of Appeals. The Kansas Court of Appeals reversed and remanded the case for a new trial finding that the Respondent had engaged in prejudicial prosecutorial misconduct. State v. Gray, 25 Kan. App. 2d 83, 88, 958 P.2d 37 (1998).
"7. The prosecutorial misconduct consisted of a comment made by the Respondent during his cross-examination of Mr. Gray regarding evidence of syringe use, improper cross-examination of Mr. Gray, and improper comments made during the closing argument.
"a. Cross-Examination of Defendant. The following exchange occurred on the third day of Mr. Gray's jury trial, between the Respondent and Mr. Gray. The Kansas Court of Appeals found that the Respondent engaged in prosecutorial misconduct, based upon this exchange:
"Q. Do you recall ever seeing that syringe before?
"A. No, I have not.
"Q. All right. And you don't use those items.
"A. I have in the past, yes, I have I ain't saying I haven't but I quit.
"Q. When did you quit?
"A. I quit like a month probably a month and a half prior to any of this happening.
"Q. Yet when you were in here let me see your arms. Would you show me your arms.
"A. See anything in there?
"Q. Sure saw a lot more on the day we arrested you.
The last statement made by the Respondent was made out of the hearing of the trial judge. The Respondent had his back to the judge and counsel for Mr. Gray. Counsel for Mr. Gray made a timely objection. The objection was sustained. However, the jury was not admonished to disregard the comment until immediately preceding their deliberations. The Kansas Court of Appeals noted that 'the remark is so prejudicial as to be classified as incurable by the later jury admonition, particularly one which came at the very close of the trial, immediately before the jury retired for deliberation.' State v. Gray, 25 Kan. App. 2d at 87.
"b. Preliminary Hearing Evidence. During his cross-examination of Mr. Gray, the Respondent questioned Mr. Gray regarding evidence presented at the preliminary hearing. However, the preliminary hearing evidence was not admitted into evidence at the trial.
"c. The Respondent's Closing Argument. The Court of Appeals found that four areas of comment by the Respondent in his closing argument went 'beyond the scope of fair comment on the evidence, even considering the wide latitude given a prosecutor in closing statement.' Id. at 88. Specifically, the Court found that the Respondent improperly (1) gave his personal belief regarding Mr. Gray's guilt, (2) commented that he found drug money in other irrelevant cases, (3) offered evidence from the preliminary hearing regarding Mr. Gray's guilt even though the evidence had not been admitted into evidence, and (4) implied that Mr. Gray was infected with HIV.
(1) The Respondent made improper comments regarding his personal beliefs. In arguing his case to the jury, the Respondent said: 'I wanted what I thought was the kingpin, and I let a couple of other small fry all off the hook.' Later, the Respondent said: 'I traded for their testimony. I let them off the hook because I wanted the kingpin what I thought was the kingpin. So I got it.' Finally, the Respondent stated:
'He is not the world's kingpin. He is not the Medellin Cartel. This is just a local dealer. I want him off the street.
'I use common sense and experience. I've been charging people and looking at police reports a long time.
'And I've been walking around with my eyes open for 53 years. I don't just throw things out willy-nilly. I charge people with crimes.'
(2) The Respondent made improper references to 'drug money' he had found in other cases. During his closing argument, counsel for Mr. Gray used the lack of money found in Mr. Gray's residence to support the theory that his client was not selling drugs. In response to the comments made by Mr. Gray's counsel, the Respondent said:
'I don't know where the money went. I'd have been glad to get there early enough. I've gotten there early enough on other occasions, and we've gotten from hundreds to thousands. But in this case, we didn't find any money.
'But if I'm leaving, I don't have time to grab the weed, but I'm going to make sure I got time to grab the money, money I've got to spend. I don't know where the money went. Can't show you.
(3) The Respondent made improper references to evidence not admitted in the case. During his closing argument, the Respondent made several references and comments regarding the evidence presented at the preliminary hearing in this case. The evidence used in the preliminary hearing was not admitted into evidence at the trial.
(4) The Respondent made improper references to 'HIV.' The Respondent provided the jury with a commentary on the syringes found in Mr. Gray's apartment, indicating that the syringes may be infected with HIV, and therefore, implying that Mr. Gray may be infected with HIV. There was no evidence introduced in the trial regarding 'HIV' or testing of the needles in question. Specifically, the Respondent stated:
'I wouldn't necessarily reach in the trash can because HIV is a killer. If I stabbed myself with one of those needles, I'd cut my finger because you can't get rid of it any other way.'
"Manufactured Evidence Case
"8. In 1994, Fort Scott Sgt. Awbrey Hawpe investigated an allegation that James Lee Scott masturbated and ejaculated into a handkerchief in front of an employee. The handkerchief was collected as evidence and placed into a brown paper sack.
"9. The Respondent charged Mr. Scott with lewd and lascivious behavior and criminal restraint. Counsel for the defendant and the Respondent worked out a plea agreement, and on October 24, 1994, the matter was scheduled for a change of plea and sentencing hearing.
"10. Some time after the commission of the crime, but before the change of plea hearing, the brown paper sack containing the handkerchief was lost.
"11. After being informed that the evidence was lost and shortly before the change of plea hearing on October 24, 1994, the Respondent located a brown paper sack and placed his personal handkerchief into the sack. The Respondent asked Sgt. Hawpe to carry the sack containing the Respondent's handkerchief into the courtroom as though it was the missing evidence in the case. Additionally, the Respondent asked Sgt. Hawpe not to 'volunteer anything,' implying that Sgt. Hawpe should mislead the defendant about the misplaced handkerchief.
"12. Sgt. Hawpe became angry, told the Respondent that he was not going to tell a lie, and refused to take part in the Respondent's charade. Because Sgt. Hawpe would not carry the sack into the courtroom, the Respondent carried the sack and placed it on counsel table. The sack remained on counsel table throughout the change of plea and sentencing hearing.
"13. In his response to the initial complaint, the Respondent explained that he placed his handkerchief in the brown paper sack and treated the sack as if it were the missing evidence 'to heap added embarrassment on the defendant.' Additionally, the Respondent testified at the hearing on this matter, that he placed his handkerchief in the brown paper sack because he wanted Mr. Scott to believe that the evidence was not missing and could be used if Mr. Scott decided to back out of the plea agreement.
"14. The judge and Mr. Scott were never informed that the handkerchief inside the sack was the Respondent's personal handkerchief and not the evidence seized in the case.
"15. Although the Respondent acknowledges that embarrassing Mr. Scott was improper, the Respondent now asserts that, because he could have used the handkerchief as in his words 'demonstrative evidence,' he did not engage in misconduct.
"Briggs Case
"16. On May 9, 1995, the Respondent was the victim of a crime. Mark Briggs stole his trailer and its contents. On May 10, 1995, the Respondent's assistant filed a complaint charging Mr. Briggs with theft. The Respondent was endorsed as a witness on the complaint.
"17. The Respondent went to the home of Mr. Briggs' parents and informed them that if Mr. Briggs would return his property, the Respondent would reduce the charges pending against Mr. Briggs.
18. On August 29, 1995, Mr. Briggs was arrested for the crime. Mr. Briggs' first appearance was August 30, 1995. The Respondent's assistant appeared in behalf of the state. The Respondent was also present during the hearing.
"19. On August 31, 1995, Charles Gentry was appointed to represent Mr. Briggs. On September 5, 1995, Mr. Briggs appeared with counsel for a bond review hearing. Following the hearing, outside the presence of Mr. Gentry, Mr. Briggs asked the Respondent if all he wanted was his property back. The Respondent restated the offer that he had made to Mr. Briggs' parents. Mr. Briggs asked the Respondent to come see him in jail. The Respondent and Mr. Briggs scheduled a meeting at 12:30 p.m. in the jail.
"20. Opposing counsel, Mr. Gentry, learned of the Respondent's plans to have ex parte contact with his client. Prior to the meeting, Mr. Gentry stopped by the Respondent's office and canceled the meeting.
"21. At about this same time, the Respondent was seeking to have a special prosecutor appointed to prosecute this case. Daniel F. Meara was appointed and served in that capacity.
"22. The brief conversation between the Respondent and Mr. Briggs after the bond review hearing, including the incriminating statement, was introduced as evidence in the preliminary hearing.
"23. On three separate occasions the defendant initiated contact with the Respondent. On November 1, 1995, Mr. Briggs requested that the Respondent meet with him in the jail. Again on November 3, 1995, Mr. Briggs sent a request to the Respondent asking him to visit him in the jail. Finally, on November 8, 1995, Mr. Briggs notified the Respondent that he had information in a murder case and Mr. Briggs again asked the Respondent to visit him in jail.
"24. On November 8, 1995, the Respondent went to the jail and visited Mr. Briggs. Prior to meeting with Mr. Briggs, the Respondent attempted to contact Mr. Gentry. Because Mr. Gentry was not at home or at the office, and because the Respondent did not want to stay at the office until after 10:00 p.m., the Respondent went to see Mr. Briggs without the consent of opposing counsel. During that meeting, Mr. Briggs made additional incriminating statements regarding the theft of the Respondent's personal property.
"25. The trial court later suppressed the statements made by Mr. Briggs on September 5, 1995, and November 8, 1995.
"Gardner Case
"26. On October 2, 1995, the Respondent charged Dale Leland Gardner, Jr. with aiding and abetting first degree murder, possession of narcotics, and conspiracy to possess narcotics.
"27. On October 6, 1995, Mr. Gardner was booked into jail. One hour before the first appearance, the Respondent went to the jail and questioned Mr. Gardner. Prior to questioning Mr. Gardner, the Respondent did not advise Mr. Gardner of his right pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1601, 16 L. Ed. 2d 694 (1966). During that conversation, Mr. Gardner made incriminating statements to the Respondent. At the first appearance hearing, counsel was appointed for Mr. Gardner.
"Reyes Case
"28. On June 5, 1998, State v. Raul Reyes came on for a bond hearing. The Respondent appeared at that time, and argued against a reduced bond, reasoning that it would be easy for the defendant to travel to Mexico and blend in with the populace. The Respondent based his comments on the defendant's name and appearance. The defendant was a United States citizen and a military veteran.
"29. The comments by the Respondent drew an objection by counsel for defendant. Additionally, a Hispanic American Corrections Officer voiced his objection to the improper comments as well.
"Slavery Comments
"30. On May 4, 1998, following a hearing on a 'child in need of care' case, the Respondent met with various participants of the hearing, including two social workers from the Kansas State Department of Social and Rehabilitation Services (hereinafter 'SRS'), an African American teenage girl, her mother, and her aunt. During this meeting, the Respondent positioned himself a few feet from the teenager and shouted, 'Do you think slavery is over? Damn it young lady answer me, do you think slavery is over? I'm here to tell you it's not, your mother owns you until you are 18.'
"31. At the hearing on this matter, the Respondent denied that making such comments to an African American person is offensive. He denied that it was a racist statement, alleging that he did not notice the race of the child to whom he was talking and that the comment is a correct statement of the law. He maintained that the decisions of the United States Supreme Court support the view that children are chattel owned by their parents.
"Advice to Chain Child to Bed
"32. On November 9, 1998, the Respondent, following a juvenile court hearing, advised the father of a juvenile to chain his son to the bed to allow the family to get some rest and to prevent the child from sneaking out of the house at night. The father followed the Respondent's advice and, for three nights, chained his son to the bed with a chain and padlock. As a direct result, the child was removed from the care of the father. During the hearing on this matter the Respondent maintained that his advice was fully justified. As justification he testified that the child died after being placed in the custody of SRS. The Respondent stated that the child did not die 'on my watch.'
"Suicide Comments
"33. On April 23, 1998, a fourteen year old was placed in foster care. Social workers from the area office of the SRS contacted the Respondent and asked him to file a 'child in need of care' case. The Respondent refused to file the case and refused to examine additional information presented by the SRS workers. After the Respondent was informed that the child was suicidal, the Respondent stated that he hoped that the child would commit suicide because everyone would be better off. The Respondent also told the social workers that they could bring the child to his office and he would show the child how to commit suicide.
"34. In his response to the initial complaint, the Respondent defended his statement to the SRS workers by stating, 'I do not have a great deal of respect for [SRS workers] and take advantage of their stupidity as often as possible.' The Respondent reiterated his position at the hearing on this matter.
"Public Corporal Punishment Comments
"35. The Respondent has taken a public stance in favor of corporal punishment of children. In furtherance of his position, the Respondent maintains a large wooden paddle painted red and emblazoned with the letters 'Board of Education' in his office and has made arrangements for parents to bring their children to the courthouse after business hours, for the administration of public paddlings. He has done this in lieu of bringing formal juvenile proceedings or as an adjunct to such proceedings. The paddlings have been witnessed by the Respondent, juvenile intake workers, and law enforcement officers.
"36. The Respondent's personal opinion regarding paddling children found its way into the newspapers local to the Bourbon County area. The Respondent is quick to point out that the local SRS office is of the opinion that paddling children with a wooden paddle is child abuse. The Respondent, on the other hand, is of the opinion that such paddlings are not child abuse. His justification for having the paddlings administered in the county courthouse in the presence of public officials is to avoid the threat of SRS accusing the parents of the children of child abuse.
"Weeter Case
"37. On August 30, 1999, John Weeter was charged with two counts of conspiracy to commit murder in the first degree, case number 99CR432. Thereafter, on September 7, 1999, the Respondent amended the charges to include four counts of conspiracy to commit murder in the first degree. Then, on September 28, 1999, the Respondent filed a Second Amended Complaint, and charged Mr. Weeter with one count of attempted murder in the first degree and one count of conspiracy to commit murder in the first degree. Mr. Weeter was represented by Daniel D. Creitz.
"38. The case proceeded to preliminary hearing on September 23, 1999, and October 15, 1999. At the conclusion of the hearing, the court bound Mr. Weeter over on the charges of conspiracy to commit first degree murder and attempted aggravated assault (a lesser included offense of attempted murder in the first degree). The court found that there was insufficient evidence to support a finding of probable cause on the charge of attempted murder in the first degree.
"39. At the conclusion of the preliminary hearing, as the judge was leaving the courtroom, Mr. Creitz approached the Respondent to request a copy of an audiotape material to the case. Ignoring the request, the Respondent told Mr. Creitz to 'fuck off.' Additionally, the Respondent threatened Mr. Creitz, stating he did not want to be 'fucking messing' with the Respondent. The expletives used by the Respondent were heard by the Honorable Patricia Miklos, Judge Pro Tem, court services officers, Mr. Weeter, Mr. Weeter's mother, Mr. Gentry (counsel for a co-defendant), and the court reporter, Darcie Cruz. The Respondent, in a fit of pique, vowed to refile the case.
"40. Within a few hours of the conclusion of the preliminary hearing on October 15, 1999, and without the benefit of any new evidence regarding the case, the Respondent refiled the same charge of attempted murder in the first degree, case number 99CR485.
"41. The Respondent subsequently dismissed case number 99CR485 on January 24, 2000. The Respondent explains that the case was dismissed because he failed to subpoena witnesses necessary to establish the charges. However, a week before the case was dismissed, counsel for Mr. Weeter filed a motion to dismiss. Additionally, the preliminary hearing was scheduled before the same judge who had heard it the first time and had refused to find probable cause to bind the defendant over for trial.
"42. At the hearing on his matter, the Respondent justified his actions of refiling the attempted murder in the first degree charge on the theory that, because the facts that gave rise to the conspiracy to commit murder in the first degree charge occurred on one date and the facts that gave rise to the attempted murder in the first degree charge on another, refiling the same charges without new evidence was appropriate.
"CONCLUSIONS OF LAW
"Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
"1. Gray Case. Regarding the Gray case, the Respondent stipulated that he violated KRPC 1.1, KRPC 3.4(e), KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). The Hearing Panel accepts the Respondent's stipulation, and concludes that the Respondent violated KRPC 1.1, KRPC 3.4(e), KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g) during the trial of the Gray case.
a. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' In the Gray case, the Respondent failed to competently represent the state of Kansas when he commented on facts not in evidence, when he made comments as though he were testifying in the case, and when he made other improper comments during closing argument.
b. KRPC 3.4(e) provides as follows:
[a] lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.
In this case, the Respondent violated this rule by (1) alluding to a matter that was not supported by admissible evidence, (2) asserting personal knowledge of facts in issue, and (3) stating a personal opinion as to the guilt of the accused. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.4(e).
c. The Respondent also violated KRPC 8.4. Specifically, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). The Respondent violated KRPC 8.4(a) by violating KRPC 1.1 and KRPC 3.4(e).
d. The Respondent's misconduct during the Gray trial resulted in a reversal and a new trial. Certainly when prosecutorial misconduct rises to the level of reversible error, justice has been prejudiced. As a result, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
e. Interjecting his personal testimony that Mr. Gray had syringe marks on his arms the day he was arrested, giving his personal belief regarding Mr. Gray's guilt, commenting that he found drug money in other irrelevant cases, offering evidence from the preliminary hearing regarding Mr. Gray's guilt even though the evidence had not been admitted into evidence, and implying that Mr. Gray was infected with HIV, adversely reflects on the Respondent's ability to practice law. Indeed, the explanations offered by the Respondent during the hearing on this matter do nothing to inspire the Hearing Panel to conclude that the Respondent appreciates the full impact that his conduct had on the administration of justice. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
f. The Respondent was also charged with violating KRPC 3.3, KRPC 3.4(c), and KRPC 3.8. The Hearing Panel concludes that clear and convincing evidence does not support a finding that the Respondent violated KRPC 3.3, KRPC 3.4(c), and KRPC 3.8. Accordingly, those allegations of the Formal Complaint are dismissed.
"2. Manufactured Evidence Case. With regard to the misuse of the Respondent's handkerchief, the Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 8.4(a) when he attempted to violate KRPC 3.3 and KRPC 8.4(c). In addition to the violations alleged in the Formal Complaint, the Hearing Panel has considered the applicability of KRPC 3.4(b).
a. It is appropriate to consider violations not included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
'Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
'The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
'Decisions subsequent to Ruffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . . .
'Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct. . . . What is required was simply stated therein:
"We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
. . . .
"It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.'"
235 Kan. at 458