In re Todd

• Decision Date: 08 June 2018
• Docket Number: No. 118,742,118,742
• Citation: 418 P.3d 1265
• Parties: In the MATTER OF Zane TODD, Jr., Respondent.
• Court: Kansas Supreme Court

418 P.3d 1265

In the MATTER OF Zane TODD, Jr., Respondent.

No. 118,742

Supreme Court of Kansas.

Opinion filed June 8, 2018.

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

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

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an unusual uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent 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 promptly 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, diversion agreement with the office of the Disciplinary Administrator. Under the agreement, Respondent stipulated to his violations of Kansas Rules 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.

Once the diversion was terminated, on June 13, 2016, the office of the Disciplinary Administrator filed a formal complaint against Respondent. The original hearing date was set for September 20, 2016. The office of the Disciplinary Administrator filed an amended formal complaint on August 22, 2016. By this time, Respondent had learned he was suffering from what was believed to be a terminal illness. With survival as his priority, he did not file an answer to either complaint. At the September 20 hearing, on learning of Respondent'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 (KALAP) and obtain an evaluation of whether placement back on diversion would be appropriate. The 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 Respondent, the 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 been 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 with KALAP 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 Respondent and to members of the hearing panel. In the 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, the Respondent did not appear 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 panel 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 Imposing 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 a professional, and causes injury or potential injury to a client, the public, or the legal system."

Despite an earlier expressed willingness to place Respondent back on diversion, at the panel hearing the Deputy Disciplinary Administrator recommended a sanction of...