In re McGraw

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,382

In the Matter of TODD A. MCGRAW,
Respondent.


ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed October 9, 2009. Indefinite suspension.

Frank D. Diehl, deputy disciplinary administrator, argued the cause and Stanton A. Hazlett, Disciplinary
Administrator, was with him on the formal complaint for the petitioner.

Todd A. McGraw, respondent, argued the cause pro se.

Per Curiam: This is an original proceeding in discipline filed by the Office of the
Disciplinary Administrator against the respondent, Todd A. McGraw, of Independence,
Missouri, an attorney admitted to the practice of law in Missouri in 2000, and in Kansas in 2001.
The respondent's license to practice law in the state of Kansas has been administratively
suspended since October 6, 2003, for failure to fulfill the minimum continuing legal education
requirements and failure to pay the noncompliance continuing legal education fee.

In February 2006, the Missouri Supreme Court suspended respondent's license to practice
law in Missouri for 1 year, based on respondent's plea of guilty in January 2006, to a charge of
possession of methamphetamine, a class C felony. The respondent failed to report to the
Disciplinary Administrator that his license to practice law in Missouri had been suspended. In
March 2006, the Missouri Office of the Chief Disciplinary Counsel informed the Disciplinary
Administrator of Kansas of the suspension. In April 2006, the Disciplinary Administrator wrote
to the respondent requesting a response to the allegations; the respondent failed to provide a
written response. The respondent contends that he did not receive the letter as he was in
inpatient treatment at that time.

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The respondent's case was assigned to an investigator employed by the Disciplinary
Administrator. The investigator became ill and retired for medical reasons. According to the
Disciplinary Administrator, the case was not reassigned for almost 2 years. In November 2008,
the Disciplinary Administrator filed a formal complaint. The respondent filed an answer to the
formal complaint on December 15, 2008, and a stipulation to the admission of exhibits and a
plan of probation on February 18, 2009.

A hearing was held before a panel of the Kansas Board for Discipline of Attorneys,
where the respondent appeared in person. Upon conclusion of the hearing, the panel made the
following findings of fact and conclusions of law, together with its recommendation to this court:

"2. In September, 2000, the Respondent was admitted to the practice of law in the
State of Missouri. The Respondent failed to comply with the administrative requirements to
maintain his law license in Missouri beginning in 2005. As a result, at that time, his license was
not in good standing.

"3. The Respondent was admitted to the practice of law in the State of Kansas on
April 27, 2001. On October 6, 2003, the Kansas Supreme Court suspended the Respondent's
license to practice law in the State of Kansas, for failing to comply with the annual administrative
requirements to maintain a law license.

"4. In approximately February, 2003, the Respondent began using
methamphetamine. Quickly, the Respondent became addicted to the drug. Several months later,
on October 22, 2003, the Respondent was arrested in Jackson County, Missouri, for possession of
methamphetamine, a class C felony. Even after he was arrested, the Respondent continued to use
methamphetamine sporadically. [Footnote: At the hearing on this matter, the Respondent testified
that his use of methamphetamine ended prior to entering treatment. The Respondent also testified
that at the time he entered treatment, he was 'clean.']


"5. On January 26, 2004, the Circuit Court of Jackson County, Missouri, indicted
the Respondent for having possessed methamphetamine, a class C felony, on October 22, 2003.

"6. On December 31, 2005, the Respondent entered an inpatient treatment program
at the Salvation Army Adult Rehabilitation in Kansas City, Missouri. The Respondent remained
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in treatment for six months. On July 9, 2006, the Respondent successfully completed the
rehabilitation program.

"7. On January 30, 2006, the Respondent entered a guilty plea to a charge of
possession of methamphetamine, a class C felony, in State of Missouri v. Todd A. McGraw, case
number 16CR03006493-01, in the Circuit Court of Jackson County, Missouri. That same day, the
Court sentenced the Respondent. The Court suspended the imposition of the sentence and placed
the Respondent on probation for one year.

"8. The Respondent failed to report the criminal conviction to the Disciplinary
Administrator.

"9. On February 28, 2006, the Missouri Supreme Court suspended the Respondent's
license to practice law in Missouri for one year. The Respondent failed to report to the
Disciplinary Administrator that his license to practice law in Missouri had been suspended. The
Respondent's license to practice law in the State of Missouri remains suspended.

"10. On March 20, 2006, the Missouri Office of the Chief Disciplinary Counsel
informed the Disciplinary Administrator that the Missouri Supreme Court had suspended the
Respondent's license to practice law.

"11. On April 3, 2006, the Disciplinary Administrator wrote to the Respondent and
requested that the Respondent provide a written response regarding the allegations. [Footnote:
The Respondent contends that he did not receive the letter, as he was in inpatient treatment at that
time. Correspondence from the Disciplinary Administrator's office is sent to each respondent's
last registered address. Pursuant to Kan. Sup. Ct. R. 208(c), attorneys are required to notify the
Clerk of the Appellate Courts of any change of address within 30 days. In this case, the April 3,
2006, letter was sent to the Respondent at his last registration address. The record is void of
evidence that the letter was returned to the Disciplinary Administrator. As such, the Hearing
Panel finds that the Disciplinary Administrator provided the Respondent with constructive notice
of the initial complaint.] The Respondent failed to provide a written response regarding the
allegations.

"12. On January 30, 2007, the Respondent successfully completed the terms and
conditions of his probation on his criminal conviction.

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"13. On November 25, 2008, the Disciplinary Administrator filed a Formal
Complaint. On December 15, 2008, the Respondent timely filed an Answer to the Formal
Complaint. On February 18, 2009, the Respondent filed a plan of probation.

"CONCLUSIONS OF LAW

"1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law
that the Respondent violated KRPC 8.4(b), KRPC 8.1, and Kan. Sup. Ct. R. 207, as detailed
below.

"2. "It is professional misconduct for a lawyer to . . . commit a criminal act that
reflects adversely on the lawyer's . . . fitness as a lawyer in other respects." KRPC 8.4(b). In this
case, the Respondent was convicted by his plea of possession of methamphetamine, a class C
felony. The Hearing Panel concludes that the Respondent committed a criminal act that reflects
directly on the Respondent's fitness to practice, in violation of KRPC 8.4(b).

"3. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan.
Sup. Ct. R. 207(b) provide the requirements in this regard. "[A] lawyer in connection with a . . .
disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information
from [a] . . . disciplinary authority, . . ." KRPC 8.1(b).

'It shall be the duty of each member of the bar of this state to aid the
Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in
investigations concerning complaints of misconduct, and to communicate to the
Disciplinary Administrator any information he or she may have affecting such
matters.'

Kan. Sup. Ct. R. 207(b). The Respondent failed to provide a written response to the initial
complaint docketed by the Disciplinary Administrator. Because the Respondent failed to provide
a written response to the initial complaint, the Hearing Panel concludes that the Respondent
violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).

"AMERICAN BAR ASSOCIATION
STANDARDS FOR IMPOSING LAWYER SANCTIONS

"In making this recommendation for discipline, the Hearing Panel considered the factors
outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions
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(hereinafter "Standards"). Pursuant to Standard 3, the factors to be considered are the duty
violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's
misconduct, and the existence of aggravating or mitigating factors.

"Duty Violated. The Respondent violated his duty to the public to maintain his personal
integrity.

"Mental State. The Respondent knowingly and intentionally violated his duty.

"Injury. As a result of the Respondent's misconduct, the Respondent caused actual injury
to the legal profession.

"Aggravating or Mitigating Factors. Aggravating circumstances are any considerations
or factors that may justify an increase in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the Hearing Panel, in this case, found the following aggravating
factors present:

"Illegal Conduct, Including that Involving the Use of Controlled Substances. The
Respondent was convicted in the Circuit Court of Jackson County, Missouri, of possession of
methamphetamine, a class C felony.

"Mitigating circumstances are any considerations or factors that may justify a reduction
in the degree of discipline to be imposed. In reaching its recommendation for discipline, the
Hearing Panel, in this case, found the following mitigating circumstances present:

"Absence of a Prior Disciplinary Record. Other than the Missouri suspension for the
same misconduct, the Respondent has not previously been disciplined.

"Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not
motivating factors in this case.

"The Present and Past Attitude of the Attorney as Shown by the Respondent's
Cooperation During the Hearing and the Respondent's Acknowledgment of the Transgressions.
The Respondent completely acknowledged the misconduct in his Answer and at the hearing.

"Inexperience in the Practice of Law. The Kansas Supreme Court admitted the
Respondent to practice law in 2001. At the time the Respondent engaged in the misconduct, the
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Respondent had been practicing law for a period of three years. Accordingly, the Hearing Panel
concludes that Respondent was inexperienced in the practice of law at the time he engaged in the
misconduct.

"Delay in Disciplinary Proceedings. At the hearing on this matter, the Disciplinary
Administrator explained that there was an inordinate delay in the disciplinary proceeding.

"Imposition of Other Penalties or Sanctions. The Respondent served one year on
probation following his conviction for possession of methamphetamine, class C felony, in the
Circuit Court of Jackson County, Missouri.

"In addition to the above-cited factors, the Hearing Panel has thoroughly examined and
considered the following Standards:

'Suspension is generally appropriate when a lawyer knowingly engages
in criminal conduct which does not contain the elements listed in Standard 5.11
and that seriously adversely reflects on the lawyer's fitness to practice.' Standard
5.12.

"RECOMMENDATION

"The Disciplinary Administrator recommended that the Respondent be indefinitely
suspended. The Disciplinary Administrator recommended that the indefinite suspension be made
retroactive 18 months to account for the delay in the disciplinary proceeding. Even though the
Respondent previously filed a plan of probation, at the hearing, he agreed that an indefinite
suspension is appropriate.

"Because the Respondent agreed with the Disciplinary Administrator's recommendation,
the Hearing Panel deems the Respondent's request for probation abandoned. As such, the Hearing
Panel does not consider the Respondent's request for probation.

"Based upon the findings of fact, conclusions of law, and the Standards listed above, the
Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the
practice of law in the State of Kansas. The Hearing Panel further recommends that the Court
make the Respondent's suspension effective retroactive to September 1, 2007. Making the
effective date of the Respondent's suspension retroactive to September 1, 2007, is fair in light of
the delay getting this case to hearing.
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"Costs are assessed against the Respondent in an amount to be certified by the Office of
the Disciplinary Administrator.

Applying Kansas Supreme Court Rule 202 (2008 Kan. Ct. R. Annot. 261) concerning
reciprocal discipline, and based on the documents filed in the Missouri disciplinary proceeding,
the hearing panel concluded that respondent violated Kansas Rules of Professional Conduct
(KRPC) 8.4(b) (2008 Kan. Ct. R. Annot. 586) (commission of a criminal act), KRPC 8.1(b)
(2008 Kan. Ct. R. Annot. 579) (duty to respond to a lawful demand for information from a
disciplinary authority), and Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duty to
cooperate in disciplinary investigations/duty to report violations). The respondent filed no
exceptions to the hearing panel's findings and conclusions. Thus, the above violations are
deemed admitted under Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).

The panel recommended that the respondent be indefinitely suspended from the practice
of law in the state of Kansas, with the effective date of the suspension retroactive 24 months to
account for the delay in the disciplinary proceeding. The respondent agreed at the hearing that
suspension is the appropriate discipline. Because the respondent agreed with the Disciplinary
Administrator's recommendation, the hearing panel did not consider the respondent's request for
probation, deeming it abandoned.

DISCUSSION

In disciplinary proceedings, this court "considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of KRPC
exist and, if they do, what discipline should be imposed. [Citation omitted.]" In re Lober, 276
Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and
convincing evidence. 276 Kan. at 636. Clear and convincing evidence is "evidence that causes
the factfinder to believe that 'the truth of the facts asserted is highly probable.'" In re Lober, 288
Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1
[2008]). The evidence before the hearing panel establishes the charged misconduct of the
respondent by clear and convincing evidence and supports the panel's conclusions of law. See
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KRPC 8.4(b); KRPC 8.1(b); Supreme Court Rule 207(b). We therefore adopt the panel's
findings and conclusions.

The respondent agrees that indefinite suspension is an appropriate sanction in his case.
We agree with the hearing panel's recommended sanction and further agree that the indefinite
suspension should be effective September 1, 2007, as a "fair [disposition] in light of the delay
[by the Disciplinary Administrator] getting this case to hearing."

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Todd A. McGraw be indefinitely suspended from the
practice of law in the state of Kansas, effective September 1, 2007, in accordance with Supreme
Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 307).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 218
(2008 Kan. Ct. R. Annot. 350), and in the event the respondent would seek reinstatement, he
shall comply with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent
and that this opinion be published in the official Kansas Reports.