ORIGINAL PROCEEDING IN DISCIPLINE
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Scott M. McFall, of Olathe, an attorney admitted to the practice of law in Kansas in 2008, that comes before us in an unusual procedural posture. This matter involves the initial filing of a formal complaint, a hearing and findings of a hearing panel in 2016, a transfer to disability inactive status just prior to the hearing before this court in 2017, and then a subsequent hearing and findings before the hearing panel in 2021. The following summarizes the history of this case before the court:
On May 2, 2016, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Shortly thereafter, the respondent filed an answer to the complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on July 7, 2016, where the respondent appeared in person with counsel. The hearing panel determined the respondent violated KRPC 1.3 (2022 Kan. S. Ct. R. at 331) (diligence); 1.4(a) (2022 Kan. S. Ct. R. at 332) (communication); 8.4(c) (2022 Kan. S. Ct. R. at 434) (misconduct involving dishonesty or misrepresentation); and 8.4(d) (2022 Kan. S. Ct. R. at 434) (misconduct) and Supreme Court Rule 210(a) (2022 Kan. S. Ct. R. at 263) (formerly Rule 207[b]) (duties).
On September 20, 2016, this case was docketed with the Supreme Court. The respondent did not file any exceptions and the court scheduled the oral argument for January 23, 2017. Just prior to the oral argument, on January 17, 2017, through counsel, the respondent filed a petition to transfer his license to disability inactive status. The Disciplinary Administrator's office did not oppose the request.
On January 19, 2017, the Supreme Court stayed the proceedings of this attorney discipline case and took the following actions: (1) transferred the respondent to disability inactive status; (2) ordered the respondent to undergo any medical or psychological testing to determine whether he is incapacitated by reason of mental infirmity or illness; and (3) directed the parties to file the report of evaluation with the court under seal.
No action by the respondent or the Disciplinary Administrator's office was taken in this matter for the next three years.
As a result of this inactivity, on February 22, 2021, the Supreme Court directed each party to file a report explaining the status of this case and how the court should proceed in light of that status. The Disciplinary Administrator's office timely filed a status report. The respondent failed to respond to the court's status request.
The court ordered the respondent to appear before the court on May 25, 2021, to show cause why he failed to comply with the court's January 19, 2017 Order. Following that hearing, on June 10, 2021, the court removed the respondent from disability inactive status and temporarily suspended the respondent's license to practice law and ordered the office of the Disciplinary Administrator to resume the disciplinary proceedings.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on August 30, 2021, where the respondent appeared in person with counsel. Two of the three-member panel presided over the original hearing in 2016.
Upon conclusion of the August 2021 hearing, the panel wrote a supplemental hearing report which included additional findings of fact and conclusions of law, together with its recommendation to this court.
Below is the original 2016 Final Hearing Report followed by the 2021 Supplemental Hearing Report:
"Findings of Fact "6. The hearing panel finds the following facts, by clear and convincing evidence:
"7. Scott M. McFall (hereinafter ‘the respondent’) is an attorney at law, Kansas attorney registration number 23814. His last registration address with the clerk of the appellate courts of Kansas is 104 East Poplar, Olathe, Kansas 66061. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on September 26, 2008.
"DA11905
"8. On April 25, 2014, the respondent and the disciplinary administrator entered into an attorney diversion agreement. In the agreement, the respondent stipulated that he failed to file an appeal on behalf of a client convicted of first-degree murder. Additionally, the respondent admitted that he failed to properly communicate with his client. (The respondent's client filed a pro se motion for new counsel. The motion was granted and new counsel was appointed.)
"9. The respondent failed to comply with the terms and conditions of the diversion agreement. The disciplinary administrator notified the respondent that he was not in compliance with the agreement. The diversion agreement was extended to allow the respondent to comply. The respondent continued to fail to comply with the terms and conditions of the diversion agreement. Further, new complaints were received, including a complaint self-reported by the respondent. As a result, the diversion agreement was revoked.
"DA12381
"10. On June 22, 2015, N.J. filed a complaint with the disciplinary administrator's office. The disciplinary administrator forwarded the complaint to the respondent. The disciplinary administrator sent the respondent two letters, directing the respondent to provide a response to the complaint filed by N.J. The respondent failed to do so. Thereafter, the disciplinary administrator docketed the case for investigation. The respondent failed to respond to the investigator during the investigation of the case.
"DA12416
"11. On October 6, 2015, the Kansas Supreme Court issued an order suspending the respondent's license to practice law for failing to comply with the annual registration requirements.
"12. Following the issuance of the suspension order, on October 20, 2015, the respondent appeared in Johnson County District Court on three separate criminal matters. After the respondent appeared in court, the presiding judge learned that the respondent's license to practice law was suspended. The judge contacted the respondent and informed the respondent that his license to practice law had been suspended.
"13. On October 21, 2015, the respondent hand-delivered the required registration documents to the Clerk of the Appellate Courts.
"14. On October 28, 2015, the Kansas Supreme Court issued an order reinstating the respondent's license to practice law. That same day, the respondent self-reported his misconduct to the disciplinary administrator.
"15. The disciplinary administrator docketed the case for investigation. The respondent did not cooperate in the investigation. The investigator assigned to investigate the complaint requested that the respondent schedule an interview. The respondent failed to do so. Additionally, the investigator left telephone messages for the respondent. The respondent did not contact the investigator following the telephone messages.
"DA12417
"16. On October 26, 2015, C.M. filed a complaint against the respondent. The disciplinary administrator forwarded a copy of the complaint to the respondent and directed that the respondent forward a response to the complaint within 20 days. The respondent failed to do so.
"17. The disciplinary administrator docketed the case for investigation. The respondent did not cooperate in the investigation. The investigator assigned to investigate the complaint requested that the respondent contact the investigator and schedule an interview. The respondent failed to do so. Additionally, the investigator left telephone messages for the respondent. The respondent did not return the telephone calls.
"18. On February 18, 2016, Special Investigator Terry Morgan attempted to locate the respondent. Mr. Morgan went to the respondent's office and learned that he was in court. Mr. Morgan left his business card for the respondent with a message asking him to call. Mr. Morgan also went to the respondent's residence. Mr. Morgan also left a business card for the respondent at his residence, asking him to call. The respondent did not call Mr. Morgan.
"19. On February 22, 2016, Mr. Morgan sent the respondent an electronic mail message. On February 25, 2016, the respondent responded to Mr. Morgan's electronic mail message. The respondent confirmed that he had received the correspondence regarding the complaints. The respondent explained that he has been dealing with personal issues. The respondent confirmed that his registration address was correct. The respondent promised that he would provide responses to the complaints by February 29, 2016. The respondent failed to provide responses to the complaints.
"20. On March 1, 2016, Mr. Morgan sent the respondent an additional electronic mail message, asking about the responses to the complaints. The respondent failed to respond to Mr. Morgan's message. The respondent made no further contact with Mr. Morgan. The respondent did not provide responses to the complaints.
"Conclusions of Law "21. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207, as detailed below.
"KRPC 1.3
"22. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent his client in DA11905. The respondent failed to perfect an appeal. (Luckily,
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