1 IN THE SUPREME COURT OF THE STATE OF KANS AS

N o

. 1 1 8 , 742

In the Matter of Z ANE T ODD , J R

. ,

Respondent

.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed June 8, 201 8

. Remanded with directions.

Kimberly L. Knoll , Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett
, Disciplinary Administrator, was with h er on the formal complaint for the petitioner.

Zane L. Todd, Jr. , respondent, argued the cause pro se.

P ER C URIAM : This is a n unusual un contested original proceeding in discipline filed by the office of the Disciplinary Administrator against R espondent Zane Todd, Jr.
, of Olathe , an attorney admitted to the practice of law in Kansas in 1994

.

This case arose out of Respondent's failure to act prompt ly on and communicate adequately about client A.B. 's request for a recalculation of jail time credit. Although it appears that Respondent and the prosecution ultimately agreed that no relief was due the client, Respondent entered into a July 22, 2014, dive rsion agreement with the office of the Disciplinary Administrator. Under the agreement, Respondent stipulated to his
violations of Kansas Rule s of Professional Conduct (KRPC) 1.3 ( 2018 Kan. S. Ct. R.
292 ) (diligence) and 1 .4 (2018 Kan. S. Ct. R. 293 ) (communication) on A.B.'s case. The agreement provided that Respondent would avoid sanction for those violations if he met certain requirements , one of which was completion of 16 hours of continuing legal
education , including 6 hours on ethics , within one year . Respondent completed only 15 hours, and the diversion agreement was terminated

.2

Once the diversion was terminated, o n June 13, 2016 , the office of the Disciplinary Administrator filed a formal complaint against R espondent . The original hearing date was s et for September 20, 2016. The office of the Disciplinary
Administrator filed an amended formal complaint on August 22, 2016

. By this time,
R espondent had learned he was suffering from w hat was believed to be a terminal illness. With survival as his p riority, he did not file an answer to either complaint

. At the September 20 hearing, on learning of Res pondent's illness
, the office of the Disciplinary Administrator requested a stay of the proceedings so that Respondent could communicate
with the Kansas Lawyers Assistance Program (K A LAP) and obtain an evaluation of whether placement back on diversion would be appropriate

. T he hearing panel filed an order granting the stay and directing the parties to provide a status report on or before January 1, 2017.

Neither party filed a status report by the deadline.

The office of the Disciplinary Administrator filed its status report on January 19,
2017 , stating that KALAP could not confirm or deny whether Respondent had sought its
assistance. With no word from Re spondent, t he office also filed an amended notice of hearing on March 27, 2017, which set a second hearing for May 8, 2017. Service of the notice on Respondent apparently failed.

On April 4, 2017, Anne McDonald of KALAP informed the office of the Disciplinary Administrator by letter that Respondent had been in contact with her office several times during the previous 17 months, that he appeared to be recovering physically, that he had received good support from family and friends, and that he had
b een able to return to law practice full

- time. She concluded: "I have not at this time asked him to get an evaluation or to work with KALAP in a more formal setting. If the panel
sees fit to re

- instate his Diversion and wishes to include a formal contract w ith KALAP3

as one of the conditions, I am certainly happy and willing to do that. " Ms. McDonald also stated that she had written the letter at Respondent's request.

The office of the Disciplinary Administrator emailed a copy of Ms. McDonald's
letter to Res pondent and to members of the hearing panel. In t he email , the Deputy Disciplinary Administrator stated: "I accept this as the answer to the Panel's request for a status report."

Having received no notice of the hearing setting, t he Respondent did not a ppear on May 8

. He moved to reopen the record ; the office of the Disciplinary Administrator did not object; and the hearing panel granted the motion. A third hearing on the amended formal complaint was set for August 29, 2017.

At the August hearing, the p anel reviewed the evidence, including live testimony from Respondent. It concluded that not only had he violated KRPC 1.3 and 1.4, as stipulated in the diversion agreement, but also that his conduct in failing to complete the diversion CLE requirement and the diversion's termination constituted a violation of KRPC 8.1(b) (2018 Kan. S. Ct. R. 379) (failure to respond to lawful demand for information from disciplinary authority) and that he violated Kansas Supreme Court Rule 211(b) (2018 Kan. S. Ct. R. 251) ( failure to file answer in disciplinary proceeding). The panel determined that Respondent's violations were negligent and that his ill health

" [ c ] learly" contributed to them. The panel cited two provisions of the American Bar Association Standards for Impos ing Lawyer Sanctions:

"4.43 Reprimand is generally appropriate when a lawyer is negligent and

does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.

"7.3 Reprimand is generally appropriate when a lawyer negligently

engages in conduct that is a violation of a duty owed as a4 professional, and causes injury or potential injury to a client, the public, or the legal system."

Despite an earlier expressed willing ness to place Respondent back on diversion, at the panel hearing the Deputy Disciplinary Administrator recommended a sanction of suspension. Respondent sought a less severe sanction. The panel ultimately issued the following recommendation:

"The respond ent recently battled cancer. His medical issues significantly mitigate the misconduct in this case. Additionally, there was procedural confusion at a couple of different junctures in this disciplinary case. The procedural anomalies coupled with the signifi cant mitigating facts warrant a less severe sanction in this case. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be censured. The hearing panel further recommends that the censure be published in the Kansas Reports."

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary pane l , and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster , 292 Kan. 940, 945, 258 P.3d 375 (2011) ; see Supreme Court Rule 211(f) (201 8 Kan. S. Ct. R. 2 5 1 ). Clear
and con vincing 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]).

Respondent has filed no exceptions to the panel's Final Hearing Report. He also stipulated to his violations of KRPC 1.3 and 1.4 , and there can be no dispute that he did not file answers to the formal complaint and amended formal complaint . We therefore adopt the pan el's findings of fact and its conclusions of law that Respondent violated5

KRPC 1.3 and 1.4 and Kan sas Sup reme C ourt Rule 211(b). But w e reject the panel's conclusion of law that Respondent violated KRPC 8.1(b) because of the " procedural
confusion " it refer enced. This confusion included at least the failed service of notice of the second disciplinary hearing and the Deputy Disciplinary Administrator's less

- than

precise email language indicating that Respondent had fulfilled his duty to file a status report b y requesting Ms. McDonald's letter. We also note that the office of the Disciplinary Administrator itself does not appear to have met the panel's filing deadline for its status report.

The only remaining issue before us is the appropriate discipline for R espondent ' s violations. We agree with the panel that the mitigation in this case is significant. Respondent missed successful completion of his diversion requirements by one 50

- minute hour of CLE. It is understandable that such a deficit might arise during his treatment for what had been diagnosed as Stage 4 cancer. Rules are important, of course, and they must be enforced. But, occasionally, they must bend for truly exceptional
circumstances. Indeed, at the point that Respondent appeared for his first hear ing, the Deputy Disciplinary Administrator recognized this might be such a case. Had everything gone smoothly from that point on, she was prepared to recommend that Respondent be returned to diversion. Instead, after procedural and communication irregulari ties for which the office of Disciplinary Administrator must bear at least partial responsibility, she sought suspension at the time of the third panel hearing. She now joins in the panel's
recommendation of the less severe published censure.

Given all o f the circumstances before us, we regard even published censure as a disciplinary step beyond the one necessary. Rather than imposing any discipline as a
court , we remand this case to the office of the Disciplinary Administrator for imposition
of an inform al admonition under Kansas Supreme Court Rule 203(a)(4) (2018 Kan. S. Ct.
R

. 234). In addition, the costs of this proceeding will be borne by that office.6 C ONCLUSION AND D ISCIPLINE

I T I S T HEREFORE O RDERED that this case is remanded to the office of the Disciplinary Administrator for further proceedings consistent with this opinion.

I T I S F URTHER O RDERED that the costs of these proceedings be borne by the office of the Disciplinary Administrator.