In re Murrow (

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,424

In the Matter of RODNEY K. MURROW,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed October 24, 2014. One-year suspension.

Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with him on the formal complaint for the petitioner.

James M. Kaup, of Kaup Law Office, of Topeka, argued the cause, and Rodney K. Murrow,
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, Rodney K. Murrow, of Lenexa, an
attorney admitted to the practice of law in Kansas in 1990.

On December 27, 2013, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent filed an answer on January 22, 2014. A hearing was
held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on
February 25, 2014, where the respondent was personally present and was represented by
counsel. The hearing panel determined that respondent violated KRPC 1.1 (2013 Kan. Ct.
R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013
Kan. Ct. R. Annot. 484) (communication); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot.
569) (termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting

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litigation); and 3.4(d) (2013 Kan. Ct. R. Annot. 601) (failure to respond to discovery
request).

Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:

"Findings of Fact
....
"Representation of J.B.

"8. On November 30 , 2011, J.B. retained the respondent to represent him in
connection with an employment matter. J.B. paid the respondent $5,000 for the
representation. The representation concerned J.B.'s former employer's allegation that J.B.
violated the non-compete clause of his employment agreement by going to work for his
new employer.

"9. The respondent recommended that J.B. file a lawsuit against the former
employer to obtain a temporary restraining order and a permanent injunction, preventing
the former employer from interfering with J.B.'s current employment.

"10. On December 6, 2011, the respondent filed suit against J.B.'s former
employer.

"11. On October 25, 2012, the defendant filed a motion for summary
judgment. The respondent failed to file a response to the motion for summary judgment.
On December 4, 2012, the court sent an electronic mail message to counsel for all the
parties of the litigation. In the message, the court stated:

'It looks to me like defendant's motion for summary judgment on
plaintiff's claims and for partial summary judgment on the counterclaims
. . . has gone unopposed under Kansas Supreme Court Rule 141. I have
reviewed the unopposed motion and it appears it should be granted. You
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 may prepare and circulate an appropriate Journal Entry and bring it with
you for approval on December 10 at 3 PM when we will have our
Pretrial Conference per the Case Management order and take up
defendant's motion to amend for punitive damages . . . .'

"12. The respondent did not appear for the pretrial conference, scheduled for
December 10, 2012. Rather, the respondent filed a motion seeking to stay the proceedings
and set aside orders due to his personal medical emergency. The respondent provided a
letter from his psychiatrist, in camera. The letter provided:

'I am writing on behalf of Rod Murrow as his treating physician. Mr.
Murrow is currently unable to proceed in his professional capacity due to
medical reasons. The issues relating to his current disability include the
presence of severe depression for at least the last 9 months including the
presence of suicidal ideation resulting in a review of his life insurance
policy. Psychiatric interventions have included medications and
psychotherapy. Inpatient hospitalization is being considered. He is being
placed on medical leave from his current employment, as he is
overwhelmed with the demands of his job. Anything the court could do
to accommodate his current illness would be greatly appreciated.'

"13. The court denied the respondent's medical emergency motion to stay
proceedings, the court granted the respondent's motion to continue the pretrial hearing,
and the court granted the defendant's motion for summary judgment. The court continued
the pretrial hearing to January 17, 2013, and ordered the respondent 'to have co-counsel
enter his/her appearance, or to show cause why co-counsel is not needed, with full
disclosure by counsel to [J.B.] as required by KRPC 1.16, no later than December 28,
2012.' The respondent did not provide J.B. with full disclosure under KRPC 1.16, as
ordered by the court.

"14. On January 17, 2013, the respondent appeared at the pretrial hearing
without co-counsel, without replacement counsel, without his client, and without showing
cause why co-counsel should not be required. The respondent informed the court that he

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had been in contact with another attorney, but that he did not believe replacement counsel
or co-counsel would be necessary. The respondent failed to adequately explain why
replacement counsel or co-counsel would not be necessary. The court again continued the
case. The court scheduled a hearing for February 19, 2013.

"15. On January 21, 2013, the respondent's physician prepared a second letter.
That letter provided:

'I am writing on behalf of Rod Murrow as his treating physician and to
update my 12-03-2012 correspondence. Based on additional information
received after my December 3 letter, it also now appears that Mr.
Murrow's depression has a significantly longer history than the previous
9 months, as indicated in my previous letter.

'Mr. Murrow responded well to treatment for severe depression and
returned to work as expected on 1-07-2013. However, shortly after he
returned to work, he experienced a setback. Such setbacks when coming
off an initial medical leave, in cases such as his, are not uncommon. I've
instructed him to briefly extend his leave to through [sic] February 1,
2013. I anticipate he will be able to return to full-time employment
without restrictions, after that date. Given his promising response to
treatment, I believe he has an encouraging prognosis going forward from
that date.

'Anything the court could do to accommodate his current illness would
be greatly appreciated.'

"16. From November 6, 2012, to February 14, 2013, the respondent had no
contact with J.B. On February 15, 2013, the respondent informed J.B. of the respondent's
personal difficulties and the status of the litigation.

"17. On February 17, 2013, J.B. terminated the respondent's representation.
J.B. retained Patrick G. Reavey.

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 "18. On February 18, 2013, the respondent's physician prepared another letter.
The letter provided:

'I am writing on behalf of Rod Murrow as his treating physician to
update my previous correspondence. I am pleased to report that he has
responded extremely well to treatment following the extension of his
leave in January and has returned to work full strength. Additionally, I
have reviewed the portion of the Court's order issued on December 10,
2012, regarding Mr. Murrow's requirement to report to the court by
December 28, 2012, whether co-counsel would be required, to provide
full disclose [sic] of his condition to his client, and to respond to a
motion for punitive damages.

'In my medical opinion, it was not medically possible for Mr. Murrow to
comply with the court order. As stated in my December 3
correspondence, Mr. Murrow was placed on a 30-day leave. The
December 10 order ignored or disregarded that medically-ordered leave
and required him to perform work that he was expressly medically
forbidden from performing during that leave. Further, to the extent that
Mr. Murrow attempted to comply with this order, those additional
demands during his required leave period likely delayed his recovery and
contributed to the setback that he experienced in January which required
the extension of his leave.

'It was my medical opinion when I placed Mr. Murrow on leave on
December 3 that, with the appropriate leave and treatment, that [sic] he
should recover and be able to return to work following his leave.
Unfortunately, Mr. Murrow's medical leave was not honored, rendering
him medically unable to comply with the court's orders and contributing
to his subsequent setback and extension of his leave.'

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 "19. On February 19, 2013, the respondent filed a notice of withdrawal. That
same day, the court held a hearing. The respondent appeared at the hearing, as did Mr.
Reavey. The court allowed the respondent to withdraw from the representation of J.B.

"20. On February 27, 2013, Judge Vano filed a complaint with the
disciplinary administrator.

"21. On February 28, 2013, J.B. filed a complaint with the disciplinary
administrator.

"22. On April 10, 2013, Patrick G. Reavey filed a complaint against the
respondent for his representation of J.B.

"23. At some point, the court vacated its previous order granting the
defendant's motion for summary judgment in J.B.'s case. On May 8, 2013, the court
denied the defendant's motion for summary judgment.

"24. On May 10, 2013, the respondent wrote to Mr. Reavey. The respondent's
letter provided as follows:

'When we first spoke shortly after you undertook representation
of [J.B.], I stated that I would do my best to assist [J.B.] in whatever way
I could. I meant that.

'Please find enclosed my firm check in the amount of $500 to
assist with their legal fees. I realize it's not much but, even though I am
back to my old self and doing better than I have in years (if not decades),
my practice still has a long way to go to recover from the devastating
effects that my depression had on it. I will continue to do as much as
possible to assist [J.B.] whenever possible.

'I was very pleased to notice that Judge Sutherland did the right
thing (factually, legally and morally) in denying the request for summary

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 judgment. I am extremely pleased that this matter is now assigned to a
different division. I remain absolutely convinced that [J.B.]'s current
employment doesn't violate his restrictive covenant in any way, shape or
form, which was the whole reason we sought the protection of the TRO
in the first place. I am confident that the case can and will be resolved in
[J.B.]'s favor.

'I remain willing to assist, at no cost, in whatever way you, [or
J.B.] desire, but I absolutely understand if my assistance is not desired or
sought. As usual, if you have any questions, please do not hesitate to
contact me at any time.'

On May 29, 2013, J.B. returned the $500 check to the respondent. At the hearing on this
matter, J.B. testified that he returned the check because he wanted to preserve his ability
to seek a professional malpractice case against the respondent.

"25. On January 15, 2014, the respondent's physician wrote an open letter
regarding the respondent. The letter provides:

'I am writing on behalf of Rod Murrow as his treating physician.
On December 3, 2012, I diagnosed Mr. Murrow with severe depression
and ordered him to take 30-day medical leave from his law practice. That
leave was later extended for another month, and Mr. Murrow returned to
work on February 4, 2013. Mr. Murrow was responding well to treatment
at that point. I have continued to treat Mr. Murrow and he has complied
with all therapeutic recommendations.

'During my continued treatment of Mr. Murrow over the last
year, it has become clear that his depression long predates the diagnosis
on December 3, 2012. I believe that Mr. Murrow had been suffering
from severe depression, untreated and unrecognized, for at least several
years prior to December 3, 2012. To Mr. Murrow's credit, I am

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 somewhat surprised that he was able to function professionally on any
level during that time.

'My continued treatment of Mr. Murrow has also revealed what I
believe is a unique, singular trigger for his depression, and that is his
occupation—the active practice of law. While Mr. Murrow has
responded to treatment and made progress in the last year, a consistent
pattern has emerged which demonstrates that his occupation and
occupation-related stress continue to be a trigger that has prevented his
full recovery. Continued exposure to this occupational trigger will mean
continued issues with his severe depression, even with treatment, and
continued impairment of his occupational duties.

'As [sic] result, it is my medical opinion that it is necessary for
Mr. Murrow to cease practicing law in order to facilitate his full recovery
from severe depression, and I have ordered him to do so. To continue to
practice law is to continue daily exposure to the unique, singular trigger
for his severe depression, resulting in continued occupational impairment
and preventing a full recovery. In particular, Mr. Murrow should, as
quickly as practicable, cease or withdraw from active litigation, then
close out other non-litigation matters as soon as possible. Mr. Murrow is
following my therapeutic recommendation and actively pursuing
employment opportunities outside the active practice of law. As to his
potential return to the practice of law; only time will tell.'

"Representation of K.B.

"26. On April 17, 2012, K.B. retained the respondent to represent her in her
effort to purchase her parent's share of a business which she co-owned with them. K.B.
paid the respondent $2,000 for the representation. K.B. and her parents were in strong
disagreement regarding the future of the business.

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 "27. The respondent advised K.B. to initiate a lawsuit against her parents,
forcing them to dissolve the family business or sell their ownership interest to K.B. K.B.
opposed the respondent's recommendation to sue her parents.

"28. For a period of 4 months, the respondent performed little or no work on
K.B.'s representation.

"29. On September 25, 2012, K.B. terminated the respondent as her attorney.
K.B. retained Matthew P. Dykstra to replace the respondent. Mr. Dykstra needed K.B.'s
client file so that he could properly represent her. K.B. requested that the respondent
return her client file and provide an accounting of the $2,000.

"30. On seven separate occasions between October 9, 2012, and May 17,
2013, Mr. Dykstra contacted the respondent and requested that the respondent forward
K.B.'s file and accounting to Mr. Dykstra. On April 9, 2013, the respondent called Mr.
Dykstra and briefly spoke to Mr. Dykstra regarding K.B.'s representation. Otherwise, the
respondent failed to respond to the requests for information.

"31. Finally, on June 4, 2013, the respondent apologized for the delay and
stated, '[t]he file is getting pulled and copied. I'm in a mediation all day tomorrow but I
should be able to get this all out to you by Friday or Monday at the very latest.' The
respondent never provided the file or the accounting.

"32. On July 18, 2013, Mr. Dykstra filed a complaint against the respondent.

"Representation of J.M.

"33. On January 11, 2012, on behalf of J.M., the respondent filed suit against
American Energy Solutions, Inc., in Johnson County District Court. The respondent,
however, failed to prepare a summons for service for approximately a month.

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 "34. On March 19, 2012, Michael S. Martin, attorney for American Energy
Solutions filed an answer and counterclaim. The respondent failed to answer the
counterclaim.

"35. The court scheduled a case management conference for June 4, 2012.
The respondent failed to appear at the case management conference. During the
conference, the court dismissed J.M.'s suit and granted default judgment against J.M. in
the amount of $21,807.32. The court entered the journal entry on June 6, 2012.

"36. One year later, in June 2013, the respondent filed a motion to set aside
the default judgment and reinstate J.M.'s petition. Mr. Martin filed a memorandum
opposing the respondent's motion. In August 2013, American Energy sold all of its assets
which rendered J.M.'s litigation pointless. No action was taken on the respondent's
motion.

"Representation of R.D.

"37. On August 22, 2012, on behalf of R.D., the respondent filed suit against
Premium Nutritional Products, Inc., in Johnson County District Court. The respondent
sought a restraining order, a temporary injunction, a permanent injunction, and
declaratory relief for R.D.

"38. Premium Nutritional Products, Inc., filed counterclaims against R.D. The
respondent failed to answer the counterclaims.

"39. The respondent failed to comply with discovery. The respondent failed to
respond to many attempts to resolve scheduling and discovery disputes. The respondent
failed to meet deadlines in the case.

"40. As a result, counsel for Premium Nutritional Products, Inc., filed a
motion to compel. The court scheduled a hearing on the motion to compel for August 26,
2013. The respondent failed to appear at the scheduled hearing.

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 "41. Because the respondent failed to appear at the scheduled hearing, the
court dismissed R.D.'s action and granted judgment to Premium Nutritional Products, Inc.
on its counterclaim against R.D. Additionally, the court scheduled a hearing to determine
the monetary damages caused by the respondent and his client.

"42. On October 1, 2013, the respondent signed an affidavit. The affidavit
provided:

'1. I am Rodney Murrow, and I was Plaintiff [R.D.]'s
counsel in the above captioned matter until October 1, 2013. On October
1, 2013 [R.D.] terminated me as his attorney.

'2. On or about June 28, 2013, [R.D.] notified me that he
received a copy of [sic] letter from Defendant's counsel in which
Defendant's counsel claimed I had failed to respond to several discovery
matters, a proposed Journal Entry, settlement communications and
[R.D.]'s deposition noticed for July 2, 2013.

'3. I told [R.D.] that the matters at issue in the letter were
being and would be handled.

'4. I did not inform [R.D.] that Defendant had filed a
Motion to Compel and was seeking to dismiss his case, and a default
judgment in Defendant's favor. I did not inform [R.D.] that a hearing was
scheduled on the Motion to Compel.

'5. I did not inform [R.D.] that I failed to attend the hearing
on the Motion to Compel.

'6. I did not inform [R.D.] that the Journal Entry of
Judgment had been entered against him.

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 '7. [R.D.] attempted to contact me about these matters on or
about September 17, 2013, after he was served with the Journal Entry of
Judgment.

'8. On or about September 20, 2013, I responded to [R.D.].
I told him that I was aware of the situation and I was taking steps to
rectify it.

'9. I asked to meet with [R.D.] on September 25, 2013. At
that time I told [R.D.] that I could no longer represent him because my
conduct was at issue with respect to the Court entering the Journal Entry
of Judgment.'

"43. R.D. retained Phillip Greenfield to represent him in the case. Mr.
Greenfield filed a motion to set aside the judgment. The respondent never filed a motion
to or a notice of withdraw.

"44. On November 26, 2013, the court awarded attorney fees in favor of
Premium Nutritional Products, Inc. and against the respondent and R.D.

"Conclusions of Law

"45. Based upon the respondent's stipulation and the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1,
KRPC 1.3, KRPC 1.4, KRPC 1.16(a)(2), KRPC 1.16(d), KRPC 3.2, and KRPC 3.4(d), as
detailed below.

"KRPC 1.1

"46. Lawyers must provide competent representation to their clients. KRPC
1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.' The respondent failed to
exercise the thoroughness and preparation necessary for the representation of J.B., K.B.,

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J.M., and R.D. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.1.

"KRPC 1.3

"47. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent J.B., K.B., J.M., and R.D. The respondent failed to appear at
scheduled hearings, respond to discovery, file answers to counterclaims, and respond to
motions. Finally, the respondent's lack of diligence caused all four of his clients actual
injury. Because the respondent failed to act with reasonable diligence and promptness in
representing his clients, the hearing panel concludes that the respondent violated KRPC
1.3.

"KRPC 1.4

"48. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.' In this case, the respondent violated KRPC 1.4(a) when he failed to keep
J.B., K.B., J.M., and R.D. informed regarding the status of the representations.
Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).

"KRPC 1.16

"49. An attorney whose 'physical or mental condition materially impairs the
lawyer's ability to represent the client,' shall withdraw from the representation. KRPC
1.16(a)(2). In this case, the respondent's serious mental health condition impaired his
ability to properly represent J.B., K.B., J.M., and R.D. The respondent failed to timely
withdraw from the representations as required by KRPC 1.16(a)(2). Accordingly, the
hearing panel concludes that the respondent violated KRPC 1.16(a)(2).

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 "50. Additionally, KRPC 1.16 requires lawyers to take certain steps to protect
clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides
the requirement in this regard:

'Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client's interests, such as
giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee that has not been
earned. The lawyer may retain papers relating to the client to the extent
permitted by other law.'

The respondent failed to properly account for the $5,000 fee paid by J.B. and the $2,000
fee paid by K.B. Further, the respondent failed to relinquish K.B.'s file after many
demands for the file. The hearing panel concludes that the respondent violated KRPC
1.16(d).

"KRPC 3.2

"51. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to
expedite litigation consistent with the interests of his client. The respondent caused
unnecessary delay in J.B.'s case, J.M.'s case, and R.D.'s case. Accordingly, the hearing
panel concludes that the respondent violated KRPC 3.2.

"KRPC 3.4(d)

"52. KRPC 3.4(d) provides that a lawyer shall not 'in pretrial procedure, make
a frivolous discovery request or fail to make a reasonably diligent effort to comply with a
legally proper discovery request by an opposing party.' In his representation of R.D., the
respondent failed to respond to Premium Nutritional Products, Inc.'s reasonable requests
for discovery. Thus, the hearing panel concludes that the respondent violated KRPC
3.4(d).

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 "American Bar Association
Standards for Imposing Lawyer Sanctions

"53. 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 (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.

"54. Duty Violated. The respondent violated his duty to his clients to provide
competent and diligent representation and adequate communication. The respondent
violated his duty to the legal system to comply with court orders.

"55. Mental State. The respondent knowingly violated his duty.

"56. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to all four clients.

"Aggravating and Mitigating Factors

"57. 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 factor present:

"58. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct. In his representation of four separate clients, the respondent violated many
of the same rules. The respondent's lack of diligence and communication was present in
each of the cases.

"59. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16(a)(2), KRPC

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1.16(d), KRPC 3.2, and KRPC 3.4(d). Accordingly, the hearing panel concludes that the
respondent committed multiple offenses.

"60. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1990. At the time
of the misconduct, the respondent had been practicing law for more than 20 years.

"61. Indifference to Making Restitution. The respondent has taken no
considerable action to determine each client's loss which resulted from the respondent's
misconduct. The respondent's cavalier attitude regarding righting the wrongs caused by
his misconduct was disconcerting to the hearing panel. Further, the respondent's lack of
empathy toward his clients negated any expression of remorse present in this case.
Finally, the respondent testified that he borrowed $35,000 from a family trust in order to
purchase the franchise. The hearing panel finds it telling that he failed to make similar
arrangements to make restitution to his injured clients.

"62. 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:

"63. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.

"64. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.

"65. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from
depression. It is clear that the respondent's depression directly contributed to his
misconduct in this case. The respondent's depression, however, does not appear to have
abated sufficiently to render the respondent currently fit to practice law.

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 "66. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The respondent fully cooperated with the disciplinary process.
Additionally, the respondent admitted the facts and the rule violations alleged in the
formal complaint.

"67. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends, and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent has been an active and productive member of
the bar of Johnson County, Kansas. The respondent appears to enjoy the respect of his
friends and peers and generally possesses a good character and reputation as evidenced
by letters received by the hearing panel.

"68. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:

'4.42 Suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client
and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes
injury or potential injury to a client.

'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a
client or a party, or interference or potential interference with a
legal proceeding.'

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 "Recommendation

"69. The disciplinary administrator recommended that the respondent be
indefinitely suspended from the practice of law. The respondent recommended his plan of
probation be granted and that he be allowed to continue to have a license to practice law.
The respondent, however, has no plans to engage in the active practice of law.
Alternatively, the respondent argued that censure would be appropriate discipline in this
case.

"70. Probation is designed for attorneys who have engaged in conduct
warranting suspension but who have shown that they have resolved their difficulties and
deserve a chance to continue to practice law. While the respondent's misconduct warrants
suspension, the other circumstances are not present. In this case, the respondent has no
plans to practice law. Additionally, the respondent's difficulties have not been resolved.
His physician has indicated that he needs to withdraw from the practice of law.

"71. Moreover, in order for a hearing panel to recommend that a respondent
be placed on probation, the hearing panel must find:

'(i) the Respondent develops a workable, substantial, and
detailed plan of probation and provides a copy of the proposed plan of
probation to the Disciplinary Administrator and each member of the
Hearing Panel at least 14 days prior to the hearing on the Formal
Complaint;

'(ii) the Respondent puts the proposed plan of probation into
effect prior to the hearing on the Formal Complaint by complying with
each of the terms and conditions of the probation plan;

'(iii) the misconduct can be corrected by probation; and

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 '(iv) placing the Respondent on probation is in the best
interests of the legal profession and the citizens of the State of Kansas.
Kan. Sup. Ct. R. 211(g)(3).'

"72. The respondent failed to provide a workable, substantial, and detailed
plan of probation. Despite the requirements of Kan. Sup. Ct. R. 211(g)(3), the respondent
argued that his plan could be tweaked and he was open to any changes to the plan.
However, that is not how probation in Kansas works. The plan must be workable,
substantial, and detailed, and put into place prior to the hearing on the formal complaint.
The respondent also failed to put the plan into effect prior to the hearing on the formal
complaint. And, finally, placing the respondent on probation is not in the best interests of
the legal profession and the citizens of the State of Kansas. The respondent stated that he
wants to keep his law license for the business benefit it will provide him in connection
with his planned employment agency franchise. The hearing panel concludes that the
respondent's request for probation must be denied.

"73. The question then become whether censure or suspension is appropriate
discipline to impose in this case. The respondent engaged in serious, continuous
misconduct over a period of time. Four clients suffered actual injury as a result of the
respondent's misconduct. Finally, according to the respondent's physician, for the time
being, the respondent is not able to engage in the practice of law.

"74. On the record in the February 19, 2013, hearing, Judge Vano concisely
summed up this case:

'The Professional Rules of Conduct, however, don't allow for just
letting a case ride along and letting it go at [the] client's peril. . . .

'. . . And he may, in fact, have an illness, but he also has a
responsibility to his client.'

"75. Accordingly, based upon the findings of fact, conclusions of law, and the
Standards listed above, the hearing panel unanimously recommends that the respondent

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 be suspended for a period of 1 year. The hearing panel further recommends that prior to
reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct.
R. 219. Finally, the hearing panel recommends that before the respondent is permitted to
return to the practice of law, the respondent provide full restitution of all attorney fees
paid to each of the four injured clients as well as restitution to R.D. for any attorney's fee
awarded as a sanction.

"76. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, 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. 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) (2013 Kan. Ct. R. Annot. 356).
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]).

Respondent was given adequate notice of the formal complaint, to which he filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent filed no exceptions to the hearing panel's final hearing report. As
such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013
Kan. Ct. R. Annot. 375).

The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446)

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(competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R.
Annot. 484) (communication); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot. 569)
(termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation);
and 3.4(d) (2013 Kan. Ct. R. Annot. 601) (failure to respond to discovery request), and it
supports the panel's conclusions of law. We, therefore, adopt the panel's conclusions.

In light of the multiple instances of misconduct and rule violations, the office of
the Disciplinary Administrator recommended to this court that the respondent be
suspended for an indefinite period of time. The respondent suggested we should censure
him or place him on probation.

We conclude that censure is not appropriate in this case given the repeated nature
of respondent's conduct and the resulting actual injury to his clients. Further, we agree
with the hearing panel that probation is not appropriate for several reasons, including
respondent's failure to present a workable, substantial, and detailed plan that was put into
place prior to the hearing on the formal complaint. The hearing panel, after rejecting
probation as a viable alternative, recommended that the respondent be suspended for a
period of 1 year and that prior to reinstatement, the respondent undergo a reinstatement
hearing, under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407), and provide full
restitution of all attorney fees paid to each of the four injured clients as well as restitution
to R.D. for any attorney fees he had paid pursuant to the district court's award in favor of
Premium Nutritional Products, Inc.

This recommendation is "advisory only and shall not prevent the Court from
imposing sanctions greater or lesser than those recommended." Supreme Court Rule
212(f) (2013 Kan. Ct. R. Annot. 377). In this case, we conclude the hearing panel's
recommendation is appropriate.

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 CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Rodney K. Murrow be suspended for 1 year from
the practice of law in the state of Kansas effective on the filing of this opinion in
accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2013 Kan. Ct. R. Annot. 406) and Rule 219. At any reinstatement hearing
conducted under Rule 219, respondent is required to present clear and convincing
evidence that:

(1) He has made restitution to his four injured clients in amounts determined
appropriate by the hearing panel or has reimbursed the Lawyers' Fund for Client
Protection for all amounts it has paid for claims filed by his clients.

(2) He has received adequate health treatment, including psychological treatment,
and has been medically and psychologically evaluated and determined fit to engage in the
active practice of law.

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.

MICHAEL J. MALONE, Senior Judge, assigned. 1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,424
to fill the vacancy on the court created by the appointment of Justice Nancy Moritz to the
United States 10th Circuit Court of Appeals.
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