In re Kenney
(2021)
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Rule of Law:
An attorney violates the Kansas Rules of Professional Conduct, including those pertaining to meritorious claims, candor to the tribunal, and professional misconduct, by filing adoption petitions containing false allegations without a factual basis, even if asserted out of 'abundance of caution,' constituting dishonesty and conduct prejudicial to the administration of justice.
Facts:
- In September 2016, C.L. was born and placed for adoption; her biological father learned of her birth, expressed a desire for custody, and informed the Kansas Children's Service League (KCSL) he had retained an attorney.
- Kevin W. Kenney, representing C.L.'s prospective adoptive parents, filed a petition to terminate the biological father's parental rights, alleging claims such as failure to support the mother during pregnancy and abandonment after birth, despite knowing the father had only recently learned of the pregnancy and birth.
- During oral arguments before the Kansas Supreme Court in the C.L. adoption case, Kenney admitted that he included these pre-birth allegations in the verified petition without prior factual investigation, based on a general distrust of birth mothers and 'out of an abundance of caution.'
- In October 2018, the Kansas Supreme Court reversed the termination of C.L.'s biological father's parental rights, directing custody be given to him, and noting the adoption petition contained false allegations.
- In January 2017, Baby Boy F was born and placed for adoption; his biological mother identified the biological father in relinquishment documents.
- Kenney, representing Baby Boy F's prospective adoptive parents, filed an adoption petition alleging the biological father made no reasonable efforts to support or communicate with the child after birth, when the father did not yet know Baby Boy F had been born.
- In December 2018, the Kansas Court of Appeals reversed the termination of Baby Boy F's biological father's parental rights, directing custody be given to him, and citing the Supreme Court's C.L. decision.
- In his response to the disciplinary administrator regarding the Baby Boy F case, Kenney stated it was his past practice to simply quote statutory provisions for termination of parental rights in adoption petitions without a specific factual basis.
Procedural Posture:
- On June 18, 2020, the office of the Disciplinary Administrator filed a formal complaint against Kevin W. Kenney alleging violations of the Kansas Rules of Professional Conduct (KRPC).
- On June 29, 2020, Kevin W. Kenney timely filed an answer to the complaint.
- On August 3, 2020, the Disciplinary Administrator and Kenney entered into a joint stipulation agreement, where Kenney admitted to the facts and stipulated that his conduct violated KRPC 3.1, 3.3, and 8.4.
- On August 13, 2020, a complaint hearing was conducted before a panel of the Kansas Board for Discipline of Attorneys, where Kenney personally appeared and was represented by counsel.
- At the conclusion of the hearing, the panel determined that Kenney had violated KRPC 3.1, 3.3(a)(1), 8.4(c), and 8.4(d), and set forth its findings of fact, conclusions of law, and a recommendation for a six-month suspension of Kenney's license in a final hearing report.
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Issue:
Does an attorney violate Kansas Rules of Professional Conduct 3.1 (meritorious claims), 3.3(a)(1) (candor to the tribunal), 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct prejudicial to the administration of justice) by filing adoption petitions containing false, uninvestigated allegations aimed at terminating parental rights, even when asserting a belief that birth mothers may be untruthful or acting out of 'an abundance of caution'?
Opinions:
Majority - Per Curiam
Yes, Kevin W. Kenney violated Kansas Rules of Professional Conduct 3.1, 3.3(a)(1), 8.4(c), and 8.4(d) by filing adoption petitions containing false, uninvestigated allegations. The Court found that Kenney knowingly made false statements to the court with the intent to circumvent fathers' constitutional rights to parent their own children and to obtain fraudulent termination of parental rights, which subsequently led to the overturning of two adoptions. The Court emphasized that an attorney cannot include allegations in a petition without factual support, rejecting Kenney's justifications of skepticism about birth mothers' honesty or acting "out of an abundance of caution" or as a "notice pleading" strategy. The Court characterized Kenney's conduct as using the legal process to "traffic children," deeming it a severe breach of trust that undermines the legal system. Citing ABA Standards for Imposing Lawyer Sanctions § 6.11, the Court determined disbarment was the appropriate sanction due to the intent to deceive, the serious injury caused to clients, biological parents, children, and the public's confidence in the legal system. The Court referenced In re Nwakanma and In re Williams as precedents for imposing serious sanctions in similar cases involving fraud and dishonesty.
Analysis:
This case strongly reaffirms an attorney's fundamental duty of candor to the tribunal and the requirement for a good-faith factual basis for all claims asserted in pleadings. It establishes that an attorney cannot rely on general skepticism about clients or an 'abundance of caution' to justify making unsubstantiated or false allegations, especially in high-stakes cases like parental rights termination. The severe sanction of disbarment underscores the judiciary's commitment to protecting the integrity of the legal system and safeguarding fundamental constitutional rights, indicating that such deliberate misrepresentations will not be tolerated and setting a high bar for ethical conduct in adversarial proceedings involving vulnerable parties.
