ORIGINAL PROCEEDING IN DISCIPLINE
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against respondent, Thomas T. O'Neill, an attorney admitted to the practice of law in Kansas in September 1986. The respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Kansas City, Kansas. This court temporarily suspended respondent's license to practice law in Kansas on January 9, 2006, pursuant to Kan. Sup. Ct. R. 203(c)(4) (2006 Kan. Ct. R. Annot. 243), after notification from the Disciplinary Administrator that the respondent had been convicted of felony driving under the influence (DUI).
A formal complaint was filed charging respondent with violating KRPC 8.4 (2006 Kan. Ct. Annot. 510), based upon the felony DUI conviction. The complaint alleged that respondent was charged on August 29, 2002, with DUI, and that the offense was charged as a felony because respondent had previously been twice convicted of DUI. The complaint alleged that respondent was convicted on that charge on September 29, 2003, based upon a stipulation of facts, that an appeal was taken to the Kansas Court of Appeals, and that respondent's conviction was affirmed. (State v. O'Neill, No. 93,108, unpublished opinion filed November 10, 2005.)
The respondent filed an answer admitting the allegations of the complaint. The matter was set for a hearing before the Kansas Board for Discipline of Attorneys but was continued by agreement to allow the Disciplinary Administrator to file a second formal complaint.
An amended formal complaint was then filed which included the additional allegations that respondent had failed to disclose a number of his arrests and convictions when he applied for admission to the Kansas bar, in violation of KRPC 8.1(a) (2006 Kan. Ct. R. Annot. 505). Following the hearing before a panel of the Kansas Board for Discipline of Attorneys, the panel concluded respondent had violated KRPC 8.1(a) (knowingly making a false statement of material fact in applying for admission to the bar) and KRPC 8.4(b) (committing a criminal act). A majority of the hearing panel recommends that the respondent be indefinitely suspended from the practice of law in the state of Kansas. One member of the panel recommends disbarment.
The panel made findings of fact, reproduced in pertinent part as follows, and conclusions of law:
"2. On April 30, 1986, the Respondent applied to take the Kansas bar examination. In so doing, the Respondent filed with the Clerk of the Appellate courts a document entitled, 'Applicant's Questionnaire and Affidavit' and a 'Petition for Admission to the Bar of the State of Kansas by Written Examination.'
"3. Question 17(a) of the Applicant's Questionnaire and Affidavit provides as follows:
'Have you ever been summoned, arrested, taken into custody, indicted, convicted OR tried for, OR charged with, OR pleaded guilty to, the violation of any law or ordinance or the commission of any felony or misdemeanor, OR have you ever been refused a fidelity or other bond?
'NOTE 1: Include all such incidents no matter how minor the infraction or whether guilty or not except minor traffic violation and juvenile offenses.
'NOTE 2: Although a conviction may have been expunged from the records by order of a Court, it nevertheless must be disclosed in your answer to this question. See K.S.A. Supp. 21-4619.'
The Respondent answered question 17(a) in the affirmative. The Respondent attached a letter from R. Richard Stanwix, the Police Chief of Lawrence, Kansas, at the time. In the letter, Chief Stanwix advised that the Respondent had two convictions for reckless driving in Lawrence, Kansas. The convictions occurred in January, 1981, and September, 1981. No additional arrests or convictions were disclosed by the Respondent in the Applicant's Questionnaire and Affidavit.
"4. The Respondent's Applicant's Questionnaire and Affidavit includes the following statement:
'. . . I have carefully read the questions in the foregoing questionnaire and have answered them truthfully, fully, and completely, without mental reservations of any kind and that the answers are complete and are true to my own knowledge.'
Following the above statement, the Respondent signed his name. The Respondent's signature was notarized.
"5. Section VIII of the Respondent's Petition for Admission to the Bar of the State of Kansas by Written Examination contains the following statement:
'I further state that I have never pleaded guilty nor have I been convicted of a felony or of a misdemeanor other than minor traffic offenses, except . . . .'
Following that statement, the Respondent inserted the following:
'1. Reckless driving; January 15, 1981; Lawrence, Kansas; Municipal Court of Lawrence.
'2. Reckless driving, September 23, 1981, Lawrence, Kansas; Municipal Court of Lawrence.
'see letter from R. Richard Stanwix, Chief of Police, Lawrence, Kansas.'
Following the Respondent's typewritten references to two reckless driving convictions, the form of the Petition contains the following note, 'If ever convicted, give date, place, name of trial court, nature of offense charged, present status, etc. Specify fully.'
"6. Section XII of the form of the Petition contains the following statement:
'I fully agree that notwithstanding I am admitted to practice law in the courts of the State of Kansas by reason of this petition, if it should develop hereafter that any statement herein contained is false, it shall be ground for the Supreme Court to cancel my certificate of admission and to revoke my license as an attorney at law.'
The Respondent's signature follows this statement. Following the Respondent's signature appears the following statement which is signed by the Respondent and notarized:
'I, Thomas Tyrone O'Neill, the petitioner above named, do solemnly swear that I signed the above and foregoing petition; that I have read the said petition and that all statements therein made are true. So help me God.'
"7. In the Questionnaire and Affidavit as well as in the Petition for Admission to the Bar of the State of Kansas by Written Examination, the Respondent was required to swear that the information he provided was true. In both documents, he signed the statement, representing that the information contained was true and complete. However, the Respondent failed to ...