IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, v. Complainant, KELLY KATHRYN MCGRAW, Case No. SC07-964 TFB File No. 2004-00,758(1A) Respondent. / REPORT OF THE REFEREE ACCEPTING CONSENT JUDGMENT I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as Referee to conduct disciplinary proceedings herein according to R. Regulating Fla. Bar 3-7.6, the following proceedings occurred: On May 23, 2007, The Florida Bar filed a Complaint and Request for Admissions. On July 3, 2007 and July 23, 2007, respectively, Respondent filed Answers to Admissions and Answer to The Florida Bar s Complaint. On July 17, 2007, The Florida Bar filed a Notice of Telephonic Case Management Conference, scheduling it for July 26, 2007. The Referee entered an Order dated July 31, 2007, allowing the parties counsel additional time to pursue discovery, and setting a second telephone conference for September 5, 2007. The Referee set a Final Hearing on November 5, 2007. After both parties filed discovery requests and responses to discovery, the parties counsel entered
into a Consent Judgment on November 6, 2007. All of the aforementioned pleadings, responses thereto, and this Report constitute the record in this case and are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT A. Jurisdictional Statement. Respondent is, and at all times mentioned during this investigation was, a member of The Florida Bar, subject to the jurisdiction of the Supreme Court of Florida, and the Rules Regulating the Florida Bar. B. Narrative Summary Of Case. Based on the Conditional Guilty Plea for Consent Judgment, I would make the following findings of fact: 1. On December 29, 2003, Respondent was arrested in Pensacola, Florida on felony charges of possession of cocaine, and criminal conspiracy to commit a felony, in the State of Florida v. Kelly Katherine McGraw, Escambia Circuit Court Case No. 04-0010. 2. Respondent s felony arrest was made in conjunction with Operation Sandshaker, a joint state and federal investigation, which resulted in the arrest of over 50 people for drug offenses on Pensacola Beach. 3. Respondent, for the purpose of this consent judgment, acknowledges the purchase of cocaine on several occasions between May 2002 and November 2003. 4. Respondent s criminal case was transferred to a special prosecutor 2
from Leon County, due to a conflict of interest with the Escambia County State Attorney s Office. In March 2005, Respondent entered into a Deferred Prosecution Agreement with the Leon County State Attorney s Office. 5. After completion of all the conditions of the Deferred Prosecution Agreement, Respondent s criminal case was nolle prossed by Leon County on April 12, 2006. 6. Under her agreement with the State, Respondent entered into an outpatient drug counseling for 10 months of her probationary period with individual therapy sessions with a licensed therapist, as well as a Life Skills Program. She also completed 100 hours of community service work through Northwest Florida Legal Services where she hosted a Divorce Clinic. She continued to do this Clinic even after her 100 hours were met, and received a Pro Bono Award in 2006 from the Santa Rosa-Escambia Bar Association. 7. Respondent has been free from drugs for over three years and has voluntarily attended weekly local meetings sponsored by Florida Lawyers Assistance. III. RECOMMENDATIONS AS TO GUILT I recommend that Respondent be found guilty of violating R. Regulating Fla. Bar, to wit: 4-8.4(b) (Commit a Criminal Act) and 4-8.4(d) (Conduct Prejudicial to the Administration of Justice). IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED 3
I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that she be disciplined by: A. A 60-day suspension with automatic reinstatement at the end of the period of suspension as provided in R. Regulating Fla. Bar 3-5.1(e). In the interests of protecting her clients, both parties agree that Respondent s suspension will begin no sooner than December 21, 2007. B. Upon automatic reinstatement to the practice of law, I recommend that Respondent be placed on probation for a period of three years, during which time she will enter into, and maintain compliance with, a Florida Lawyers Assistance ( FLA ) contract and pay a monthly monitoring fee of $100 to The Florida Bar during her probation period. Further, a violation of her FLA contract will be a violation of probation and will Respondent subject to proceedings pursuant to Rule 3-5.1(c). All monitoring fees must be remitted no later than the end of each month in which the monitoring fee is due. All fees must be make monthly respective paid to the Bar's headquarters office in Tallahassee. Failure to pay shall be deemed cause to revoke probation. C. Respondent shall pay The Florida Bar's taxable costs in the amount of $2,652.18 in these proceedings. V. PERSONAL HISTORY, PAST DISCIPLINARY RECORD AND AGGRAVATING AND MITIGATING FACTORS 4
following: Prior to recommending discipline pursuant to Rule 3-7.6(m)(1), I considered the A. Personal History of Respondent: Age: 42 Date admitted to the Bar: September 20, 1990 Prior Discipline: None B. Aggravating Factors: None applicable. C. Mitigating Factors: I considered the following mitigating factors: (a) (b) (g) (j) absence of a prior disciplinary record absence of dishonest or selfish motive character and reputation interim rehabilitation VI. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED I find the following costs were reasonably incurred by The Florida Bar: Administrative Costs, pursuant to R. Regulating Fla. Bar 3-7.6(q)(1)(I) $ 1,250.00 Bar Counsel Expenses 237.74 Investigative Costs and Expenses 1,164.44 Total $ 2,652.18 5
It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and that should such cost judgment not be satisfied within thirty days of said judgment becoming final, Respondent shall be deemed delinquent and ineligible to practice law, pursuant to R. Regulating Fla. Bar 1-3.6, unless otherwise deferred by the Board of Governors of The Florida Bar. Dated this day of, 2007. JUDGE FRED N. WITTEN REFEREE CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to THE HONORABLE THOMAS D. HALL, Clerk, Supreme Court of Florida, Supreme Court Building, Tallahassee, Florida 32399-1927, and that copies were furnished by regular U.S. Mail to KENNETH LAWRENCE MARVIN, Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300; OLIVIA PAIVA KLEIN, Bar Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300; and JOHN A. WEISS, Respondent s Counsel, 2937 Kerry Forest Parkway, Suite B-2, Tallahassee, FL 32309-6825, on this day of, 2007. JUDGE FRED N. WITTEN REFEREE 6