KRPC 3.5(d) Limited to Adjudicative Settings: Kansas High Court Shields Extrajudicial Attorney Criticism from “Degrading to a Tribunal” Discipline (In re Valdez)

Court: Supreme Court of Kansas | Date: August 29, 2025 | Case: In re Valdez, No. 127,835

Holding: No KRPC violation; disciplinary proceeding dismissed. The court adopts a narrow reading of KRPC 3.5(d): “undignified or discourteous conduct degrading to a tribunal” applies only when the tribunal is acting in an adjudicative capacity. Extrajudicial criticism of judges/courts does not fall within KRPC 3.5(d).

Introduction

This original disciplinary proceeding against Douglas County District Attorney Suzanne Valdez arose from public statements she made in March 2021—press releases and a social-media post—criticizing the district court’s plan to conduct jury trials at the county fairgrounds during the COVID-19 pandemic and disputing Chief Judge James McCabria’s characterization of whether her office had been “consulted.” A Board of Discipline hearing panel found two violations of KRPC 3.5(d) (undignified or discourteous conduct degrading to a tribunal) and recommended published censure.

The Kansas Supreme Court, however, dismissed the proceeding entirely. It adopted the panel’s factual findings but rejected its legal conclusion, holding that KRPC 3.5(d) reaches only conduct “degrading to a tribunal” when the tribunal is acting in an adjudicative capacity—i.e., in the context of an actual legal or other adjudicative proceeding. Because Valdez’s statements were extrajudicial, they fell outside Rule 3.5(d). One concurrence would have gone further, urging a categorical policy that KRPC 3.5(d) and 8.2(a) do not apply to political speech. A dissent would have affirmed censure, reading the rule to cover degrading conduct toward courts in any of their official functions.

Summary of the Opinion

The court reiterates the familiar disciplinary framework: facts must be proven by clear and convincing evidence; the Supreme Court reviews legal conclusions de novo and is not bound by the panel’s recommendations or the parties’ agreements.
Adopting the panel’s facts, the court rejects its legal conclusion under KRPC 3.5(d). Interpreting “tribunal” through KRPC 1.0(n), the court holds that 3.5(d) protects decorum in adjudicative proceedings; it does not extend to extrajudicial commentary—even if ill-advised or offensive—about courts or judges.
Because Valdez’s press releases and Facebook post were outside an adjudicatory setting, they were not sanctionable under 3.5(d). No discipline is imposed; costs are not assessed; proceedings dismissed.
Stegall, J., concurred in the result but urged an express policy that KRPC 3.5(d) and 8.2(a) do not apply to political speech by lawyers, warning against weaponizing disciplinary processes to chill democratic debate.
Rosen, J., dissented, reading 3.5(d) to cover undignified conduct degrading to a “court” as such—without an adjudicative-proceeding limitation—and would have imposed public censure.

Analysis

Precedents Cited and Their Influence

Standards of Review and Institutional Roles

In re Spiegel, 315 Kan. 143 (2022); In re Garcia, 282 Kan. 721 (2006): Reinforce the clear-and-convincing burden for facts and the Supreme Court’s gatekeeping role.
In re Clark, 314 Kan. 814 (2022); In re Gamble, 319 Kan. 680 (2024): The court reviews legal conclusions de novo and is not bound by parties’ admissions or panel conclusions.
State v. Dixon, 233 Kan. 465 (1983): Hearing panel recommendations are advisory only.

Kansas Applications of KRPC 3.5(d)

The court canvassed its 3.5(d) cases, underscoring that they all involved conduct in or immediately tethered to proceedings:

In re Davis, 318 Kan. 199 (2024): Repeated interrupting, accusations during a hearing; cited MRPC 3.5(d) commentary on the advocate’s role and courtroom decorum.
In re Johnston, 316 Kan. 611 (2022): Unsupported accusations of collusion and racketeering in lawyer’s personal family law case.
In re Romious, 291 Kan. 300 (2010); In re Eckelman, 282 Kan. 415 (2006); In re Rathbun, 275 Kan. 920 (2003); In re Berry, 274 Kan. 336 (2002); In re Gershater, 256 Kan. 512 (1994): A throughline of in-court or proceeding-adjacent disrespect or disruption.

Model Rule Persuasion

MRPC 3.5(d) (disrupting a tribunal) and its comments focus on abusive or obstreperous conduct within “any proceeding of a tribunal.” The Kansas court found this purpose congruent with the narrow, proceeding-centered reading of KRPC 3.5(d).

Concurring and Dissenting Authorities

Concurrence drew on Bridges v. California, 314 U.S. 252 (1941); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); and multiple cases from other states that disciplined (or declined to discipline) lawyers for harsh criticisms, to argue for a categorical policy shield for political speech from KRPC 3.5(d) and 8.2(a).
Dissent relied on Grievance Adm’r v. Fieger, 476 Mich. 231 (2006), and Akron Bar Ass’n v. DiCato, 130 Ohio St. 3d 394 (2011), positing that similar provisions apply to out-of-court insults degrading a court, not just conduct in proceedings.

Legal Reasoning

Text, Structure, and Purpose of KRPC 3.5(d)

KRPC 3.5(d) provides that “a lawyer shall not … engage in undignified or discourteous conduct degrading to a tribunal.” KRPC 1.0(n) defines “tribunal” as “a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.”

The court read these provisions together to conclude that “degrading to a tribunal” targets affronts to adjudicative bodies in their adjudicative role. Context and structure support this view: KRPC 3.5(a)-(c) regulate gifts to tribunal actors, ex parte contacts with jurors, and ex parte communications with judges—each a proceeding-centered restraint to preserve impartiality and decorum in adjudication. The court therefore anchored 3.5(d) in the same core purpose: safeguarding the integrity and functioning of proceedings.

Application to Valdez’s Speech

Press releases and social-media post were issued outside any particular hearing or filing and were not connected to a pending adjudication. They criticized administrative plans (jury trials at the fairgrounds) and accused the chief judge of mischaracterizing consultations.
Though “sharp,” even “unwise” or “offensive,” these extrajudicial statements did not occur in an adjudicative setting, so they fell beyond KRPC 3.5(d)’s reach as construed by the court.

What the Court Did Not Decide

The court did not adopt a blanket First Amendment holding. It also did not create a categorical “political speech” safe harbor under the rules. Those themes appear in the concurrence, not the majority.
The court did not decide liability under KRPC 8.2(a) (false statements about a judge’s integrity/qualifications). The panel found no 8.2(a) violation on the evidence presented, and the majority’s 3.5(d) analysis made it unnecessary to address 8.2(a).

Counter-Readings in the Opinions

Concurrence (Stegall, J.): Agrees with dismissal but calls the majority’s reasoning a “pedantic” technical distinction. He would adopt a broader policy judgment: KRPC 3.5(d) and 8.2(a) should not apply to political speech by lawyers at all—not because the Constitution compels it, but to protect the “beating heart” of democratic debate and avoid partisan weaponization of disciplinary processes. He situates this in a wider skepticism of civility-policing and of the ABA’s recent forays (e.g., Model Rule 8.4(g)).
Dissent (Rosen, J.): Reads “tribunal” to include “a court” simpliciter—without any adjudicative-proceeding limitation—based on the definition’s grammar and the rule’s purpose to protect the judiciary’s integrity generally. He would affirm the panel’s 3.5(d) violations and impose public censure, emphasizing the public harm of undermining the court during a crisis.

Impact and Forward-Looking Consequences

Immediate Effects in Kansas

Narrowing of KRPC 3.5(d): The rule no longer supports discipline for extrajudicial criticism—even if rude or demeaning—unless the conduct occurs in, or is part of, an adjudicative “proceeding.”
Shift in charging theories for the ODA: Where attorney speech is outside proceedings, prosecutors must evaluate other rules (e.g., KRPC 8.2(a) for demonstrably false statements about judges; KRPC 3.6 on trial publicity; KRPC 3.5(c) for ex parte communications; KRPC 8.4(d) for conduct prejudicial to the administration of justice) rather than KRPC 3.5(d).
Reduced risk of discipline for elected prosecutors and other lawyers commenting on court administration or policy. However, false factual allegations about judges remain potentially sanctionable under KRPC 8.2(a).
Bench-bar dynamics: Courts retain in-court remedies (e.g., contempt, sanctions) for proceeding-related misconduct. Civility concerns about out-of-court discourse may be addressed through non-disciplinary paths (peer counsel, bar programming), or, where appropriate, via the Commission on Judicial Conduct for allegations about judges.

Signals for Future Cases

Concurrence’s policy marker may influence future enforcement discretion: Expect increased reluctance to pursue disciplinary actions premised on political speech. But the safe harbor is not binding doctrine.
Dissent’s interpretive alternative offers a roadmap for a broader reading of 3.5(d) should the court revisit the question or amend the rule text. For now, the majority’s narrowing controls.
Edge cases: Extrajudicial statements that target a sitting judge presiding over a pending case may still raise risks under other rules (e.g., prejudicial trial publicity). KRPC 3.5(d), however, is now off the table for out-of-court speech.

Practical Guidance for Kansas Lawyers

Extrajudicial criticism of courts or judges—however intemperate—is not sanctionable under KRPC 3.5(d) after Valdez. But:
- Do not make false statements of fact about a judge’s integrity or qualifications (KRPC 8.2[a]).
- Avoid ex parte communications with judges about substantive matters (KRPC 3.5[c]).
- Beware of statements creating a substantial likelihood of material prejudice to a proceeding (KRPC 3.6).
- Conduct that seriously undermines the orderly administration of justice may still implicate KRPC 8.4(d).
When alleging judicial misconduct, consider the formal channel: a complaint to the Commission on Judicial Conduct (Supreme Court Rules 602-622).
For judges and court administrators, non-disciplinary tools (public response, transparency, engagement) often better serve legitimacy than disciplinary escalation over rhetoric.

Complex Concepts Simplified

KRPC: Kansas Rules of Professional Conduct—the ethics rules governing attorneys in Kansas.
KRPC 3.5(d): Prohibits a lawyer from engaging in undignified or discourteous conduct degrading to a “tribunal.” After Valdez, this means conduct in the context of adjudicative proceedings.
“Tribunal” (KRPC 1.0[n]): A court; an arbitrator in a binding arbitration; or another body when it is acting like a court (adjudicating). The majority limits 3.5(d) to when these bodies are performing adjudicative functions.
Clear and Convincing Evidence: A high evidentiary standard—facts must be highly probable, not merely more likely than not.
De Novo Review: The Supreme Court independently decides legal issues without deference to the panel’s legal conclusions.
MRPC 3.5(d): The ABA’s model counterpart focuses on disrupting proceedings; Kansas uses “degrading,” but now construes it similarly to be proceeding-centered.
KRPC 8.2(a): Bars false statements (or statements made with reckless disregard of their truth) about a judge’s integrity or qualifications. Truthful criticisms—even harsh ones—are not covered.
Extrajudicial: Outside the courtroom/adjudicative process—e.g., press releases, public speeches, social media posts.

Conclusion

In re Valdez stakes out a clear doctrinal boundary: KRPC 3.5(d) is a proceeding-centered civility rule. It polices conduct “degrading to a tribunal” only when a tribunal is acting in an adjudicative capacity. By dismissing discipline for extrajudicial criticisms—however biting—of a court’s administrative decisions or of a judge’s public characterizations, the Kansas Supreme Court narrows the pathway for using professional discipline to manage out-of-court speech.

The concurrence signals a strong policy commitment to protect political speech by lawyers from disciplinary entanglement; the dissent offers a robust defense of broader protections for the institutional dignity of courts. For now, the controlling rule is the majority’s: ODA must look beyond KRPC 3.5(d) for out-of-court speech cases and, where discipline is sought, build them under rules targeting falsehoods, prejudice to proceedings, or ex parte practices.

The decision thus recalibrates the balance between decorum and debate in Kansas. It preserves strong tools for controlling in-court conduct, while curbing the use of disciplinary machinery to police the rhetoric of elected and practicing lawyers in the public square. In a profession that both depends on and defends free expression, Valdez is a consequential clarification—and a reminder that the remedy for speech we dislike is more speech, not enforced silence.