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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 103,535 In the Matter of CHARLES T. FRAHM, Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed November 19, 2010. Three-year suspension.
Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the brief for the petitioner.

John H. Fields, of Kansas City, Kansas, argued the cause and was on the brief for respondent, and Charles T. Frahm, 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, Charles T. Frahm, of Lenexa, an attorney admitted to the practice of law in Kansas in 1997. Respondent's license to practice law in Kansas was temporarily suspended on April 1, 2008; the suspension remains in effect.

On June 23, 2008, 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 July 11, 2008, an amended answer on August 26, 2009, and his proposed plan of probation on October 1, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 14, 2009, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (2010 1

Kan. Ct. R. Annot. 603) (misconduct). 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 ....

"2.

On July 20, 2006, the Respondent, in an intoxicated state, drove his

white Acura erratically on I-35 in Johnson County, Kansas. The Respondent sped up and slowed down, swerving from lane to lane. Angel Zubia and his pregnant wife, Yolanda Escamilla, occupied another car on I-35. The Respondent's car clipped the Zubia's car, causing the Respondent's car to collide with the retaining wall separating the highway, his rear bumper to come off his car, and his car to spin around.

"3.

The contact between the cars caused Mr. Zubia's car to swerve out of

control and to roll. The Respondent, aware that he was in an intoxicated state but unaware that Mr. Zubia's car had been struck, drove away from the accident.

"4.

Mr. Zubia suffered minor injuries. Ms. Escamilla was transported to a

hospital for treatment. Ms. Escamilla also suffered minor injuries.

"5.

The officers responding to the scene observed the license tag on the

detached bumper. The officer learned that the license plate belonged to the Respondent.

"6.

An off-duty police officer, Sgt. Kevin Cauley, driving his personal car,

observed the damage to the Respondent's car, including the fact that the Respondent's car had no rear bumper. Sgt. Cauley also observed Respondent driving and suspected that the Respondent was intoxicated.

"7. his residence.

Sgt. Cauley called the police dispatcher and followed the Respondent to

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"8.

Sgt. Cauley approached the Respondent and handcuffed him until on-

duty police officers arrived.

"9.

The Respondent denied being involved in a car accident and refused to

take field sobriety tests. Later, though, at the police station, the Respondent agreed to take a breath alcohol concentration test. The Respondent's breath alcohol concentration was .204.

"10.

On July 21, 2006, the Johnson County District Attorney's office charged

the Respondent with driving under the influence of alcohol, reckless driving, leaving the scene of an accident, and two counts of aggravated battery. Aggravated battery is a level 8 person felony. The remaining charges are misdemeanors.

"11.

On February 26, 2008, following a bench trial, the Respondent was

convicted of driving under the influence of alcohol, reckless driving, leaving the scene of an accident, and two counts of aggravated battery, reckless, not intentional.

"12.

On April 1, 2008, on the Disciplinary Administrator's motion, the Kansas

Supreme Court temporarily suspended the Respondent's license to practice law in the State of Kansas, pursuant to Kan. Sup. Ct. R. 203(c)(4).

"13.

On April 25, 2008, the Respondent motioned the court to vacate the

temporary suspension. The Court denied the Respondent's motion.

"14.

On May 9, 2008, Johnson County District Court Judge Peter Ruddick

sentenced the Respondent to serve seven days in the county jail, to serve eight months in the state prison, and to pay a fine. The Court granted the Respondent's request for probation from the prison sentence.

"15.

In return for the Respondent's agreement not to file an appeal, the

Johnson County District Attorney requested that the Court set aside the Respondent's convictions for reckless driving and leaving the scene of an accident. The Johnson County District Court granted the request, and the Respondent's convictions for reckless driving and leaving the scene of an accident were set aside.

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"16.

On May 19, 2008, the Respondent requested that the Kansas Supreme

Court reconsider its order temporarily suspending the Respondent. The Court denied the Respondent's request to reconsider.

"17.

The Kansas Board for Discipline of Attorneys scheduled a Formal

Hearing in this case for August 20, 2008. Prior to the hearing, counsel for the Respondent requested that the hearing be continued indefinitely for a family health issue. Because the Respondent's license to practice law was under suspension, the Disciplinary Administrator asserted no objection. A hearing on the Formal Complaint was conducted on October 14, 2009.

"18.

The Respondent's license to practice law in the State of Kansas continues

to be suspended.

"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, as detailed below.

"2.

'It is professional misconduct for a lawyer to . . . commit a criminal act

that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). In this case, the Respondent was convicted of driving under the influence of alcohol and two counts of aggravated battery. The commission of driving under the influence of alcohol and aggravated battery adversely reflects on the Respondent's fitness as a lawyer in other respects. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent's fitness as a lawyer in other respects, in violation of KRPC 8.4(b).

"AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS

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"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.

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

"Mental State. The Respondent knowingly violated his duty.

"Injury. As a result of the Respondent's misconduct, the Respondent caused actual injury to the public and to the legal profession. Specifically, the Respondent's misconduct caused injury to Mr. Zubia and Ms. Escamilla. Luckily, Mr. Zubia and Ms. Escamilla had their seat belts on at the time the Respondent's car struck their car. Because they had their seat belts on, the injuries suffered by Mr. Zubia and Ms. Escamilla were minor. Also, luckily, the couple's child was later born healthy. The potential for serious injury or death in this case, however, was great. Finally, Mr. Zubia's car suffered extensive damage.

"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 factor present:

"Illegal Conduct. The Respondent engaged in illegal conduct when he drove his vehicle while his breath alcohol concentration was .204 and when he struck Mr. Zubia's car, caused Mr. Zubia's car to roll, and caused physical injury to Mr. Zubia and Ms. Escamilla and property damage to Mr. Zubia's car. Generally, the conduct that is prohibited by the Kansas Rules of Professional Conduct is wide ranging--some more serious and some less serious. As an officer of the court, however, it is particularly egregious for an attorney to engage in criminal conduct.

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"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. The Respondent has not previously been disciplined.

"Absence of a Dishonest or Selfish Motive. The Respondent's conduct was not motivated by dishonesty or selfishness.

"Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent testified about the problems that he suffered during the relevant time period--his broken relationship and his concern that he had cancer. As a result of the personal problems, the Respondent sought individual therapy. The day he committed the crimes, he received upsetting news regarding his former fianc

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