Indefinite Suspension with Mandatory Restitution for Dishonest Post-Error Conduct: In re McDowell

Introduction

In re McDowell is a Kansas Supreme Court attorney discipline decision arising from a probate representation in which the respondent lawyer, Thomas C. McDowell, failed to timely file a decedent’s will and then engaged in a years-long course of conduct to deflect blame, including misrepresentations to the court and pressuring his client to adopt a false narrative. The case sharpens several professional-responsibility principles:

The unforgiving nature of probate filing requirements (K.S.A. 59-616, 59-617, and local rules requiring filing of the original will with the petition).
The ethical red lines around candor to the tribunal (KRPC 3.3) and dishonest conduct (KRPC 8.4(c)), especially when a lawyer’s self-interest conflicts with a client’s (KRPC 1.7).
The court’s willingness to exceed recommended sanctions and condition reinstatement on quantified restitution when dishonest, self-protective conduct causes substantial client harm.

Parties included the Office of the Disciplinary Administrator (Deputy Disciplinary Administrator Amanda G. Voth), respondent McDowell (represented by counsel and also arguing pro se), and the complainant client, K.L., who was the son of the decedent, A.L. The opinion results in an indefinite suspension with a reinstatement hearing and a restitution condition.

Summary of the Opinion

The court adopts the hearing panel’s findings (no exceptions were filed) and holds that clear and convincing evidence established violations of KRPC 1.1 (competence), 1.5 (reasonable fees), 1.7(a) (conflict of interest), 3.2 (expediting litigation), 3.3 (candor toward the tribunal), and 8.4(c) and (d) (misconduct).
Key misconduct:
- Failure to file the original will within the six-month statutory period (K.S.A. 59-617) and to attach the will to the probate petition, contrary to statute and local rule.
- Permitting false statements to the court that the will had been delivered to the clerk; advancing an “innocent beneficiary” theory under K.S.A. 59-618 that was inapplicable; and drafting an affidavit shifting responsibility to the client.
- Amassing over $80,000 in fees, much of it generated attempting to correct the lawyer’s own error, and asserting an attorney’s lien for $82,449.81.
- Prolonging litigation (including an appeal later admitted to lack merit) to cover the initial mistake rather than advance the client’s interests.
Disposition: Indefinite suspension, not the two-year suspension recommended by both the panel and the Disciplinary Administrator. Reinstatement requires:
- Compliance with Supreme Court Rule 232 (reinstatement hearing).
- Full restitution to K.L. in the amount of $155,000.

Factual Timeline and Key Events

2017–2018: Respondent represents A.L. in divorce and drafts April 2018 will naming K.L. personal representative and giving him specific bequests; respondent instructs K.L. to safeguard original will.
June 22, 2018: A.L. dies. Respondent files probate petition in September 2018, repeatedly stating the will is filed—but it is not.
Oct.–Nov. 2018: Opposing counsel flags the absence of a properly filed will; respondent’s office emails a copy to an attorney but still does not file it with the court; respondent reassures K.L. there’s “no issue filing the will.”
December 2019: Respondent’s counsel finally files the 2018 will—approximately a year after the statutory deadline.
January 8–9, 2020: Hearing where counsel suggests an “electronic glitch” and hand-delivery; respondent panics and meets with K.L., floats concerns about “tapped or cloned” phones, and pivots to K.S.A. 59-618 “innocent beneficiary” theory, blaming K.L. for holding the original will.
February 2020: Respondent files the original will and a petition invoking an “innocent beneficiary” argument, supported by a K.L.-signed affidavit that the panel later finds false and contrary to K.L.’s interests.
2021–2022: District court and Court of Appeals reject the 59-618 theory; district court sanctions respondent $60,961.80, finds many actions “not in good faith,” and denies his fee lien. The court describes a four-year pattern of behavior including false assertions and placing the client in legal jeopardy.
2025: The Kansas Supreme Court imposes indefinite suspension with restitution as a condition for reinstatement.

Analysis

Precedents and Authorities Cited

Standard of Proof and Deference:
- In re Spiegel, 315 Kan. 143 (2022), and In re Murphy, 312 Kan. 203 (2020): Misconduct must be proven by clear and convincing evidence—facts are highly probable.
- In re Hodge, 307 Kan. 170 (2017): When findings are disputed, the court does not reweigh evidence; if supported by clear and convincing evidence, findings stand. Here, no exceptions were filed, so panel findings are deemed admitted under Rule 228(g).
Sanctioning Framework:
- ABA Standards for Imposing Lawyer Sanctions guide discipline, especially Standards 4.32 (conflicts), 4.52 (incompetence in an area of practice), 6.12 (false statements to court), and 7.2 (knowing violation of professional duties).
- In re Biscanin, 305 Kan. 1212 (2017): The court is not bound by panel or ODA recommendations.
- In re Long, 315 Kan. 842 (2022): Example of the court declining to follow recommended sanctions, reinforcing its independent sanctioning authority.
- In re Stockwell, 296 Kan. 860 (2013): Probation is generally inappropriate where misconduct involves fraud or dishonesty because supervision cannot reliably guard against dishonest acts. This principle was central to rejecting probation here.
Procedural Rules and Statutes:
- K.S.A. 59-616: A will has no effect unless admitted to probate.
- K.S.A. 59-617: Petition for probate must be filed within six months of death; admission must occur within that timeframe.
- K.S.A. 59-2220 and Sedgwick County local rule: Will capable of being produced must be filed with the petition.
- K.S.A. 59-618: Allows admission of a will after six months only if a person knowingly withheld it; that person becomes liable for fees, costs, and damages. It is a narrow, fault-driven exception.
- Supreme Court Rules 225 (forms of discipline), 226 (burden of proof), 227 (probation requirements), 228 (panel reports; admissions by default), 231 (obligations after suspension), and 232 (reinstatement procedures).

Legal Reasoning

The court adopted the panel’s findings and conclusions because respondent filed no exceptions; thus, under Rule 228(g), they were deemed admitted. The record established the following:

KRPC 1.1 (Competence): Respondent lacked the necessary knowledge and preparation for probate filing requirements, including the statutory deadline and the obligation to file the original will with the petition. His continued failure to correct the omission even after being alerted compounded the harm.
KRPC 1.5 (Reasonable Fees): The probate should have been straightforward; instead, respondent’s missteps “greatly increased” the time and cost, and he charged for efforts to fix his own mistake. An attorney’s lien for $82,449.81 was unreasonable given the results and the source of the fees.
KRPC 1.7(a) (Conflict of Interest): Once the error became apparent, respondent’s personal interest in damage control materially limited his representation. He steered the case toward blaming the client under K.S.A. 59-618—an approach that exposed the client to potential fee and damage liability—thereby subordinating the client’s interest to his own.
KRPC 3.2 (Expediting Litigation): Respondent caused substantial delays, including a meritless appeal, to conceal or correct his error rather than serve the client’s interests.
KRPC 3.3 (Candor Toward the Tribunal): He allowed counsel to represent that the original will had been delivered to the clerk and did not correct the falsehood, despite knowing otherwise.
KRPC 8.4(c), (d) (Misconduct): Respondent engaged in dishonesty, including drafting an affidavit to shift blame to the client for knowingly withholding the will, and engaged in conduct prejudicial to the administration of justice by clogging proceedings with unsupportable positions and an appeal later acknowledged to lack merit.

On sanction, the court weighed the ABA Standards and the panel’s aggravating and mitigating factors. Aggravators included prior discipline; multiple offenses; a selfish, dishonest motive; refusal to acknowledge wrongdoing; indifference to restitution; and substantial experience. Mitigators included cooperation, general good character evidence, payment of the district court’s monetary sanction, and the remoteness in character (but not time) of the prior offense.

The court departed from the panel and ODA’s two-year suspension recommendation due to the duration and gravity of the dishonest conduct (spanning four years), the fraud on the court, the bullying of the client into adopting a false affidavit, and the substantial financial harm. It imposed an indefinite suspension with a reinstatement hearing and a restitution condition of $155,000.

The Probate-Law Context: K.S.A. 59-616, 59-617, and 59-618

Strict deadlines and filing mechanics matter. A will is ineffective unless admitted to probate (59-616), and admission must occur within six months of death (59-617). If the original is capable of being produced, it must be filed with the petition (59-2220 and local rule). Failing to file the original jeopardizes probate regardless of whether a petition alone is timely e-filed.
The “innocent beneficiary” exception (59-618) is narrow. It applies only when someone knowingly withholds a will. The person who did so becomes liable for beneficiaries’ fees, costs, and damages. It is not a safety valve for law-office failures. Using this statute to shift responsibility to a blameless client—particularly at the lawyer’s prompting—was both legally unsustainable and ethically impermissible.

Why Probation Was Rejected

Under Rule 227, probation requires a workable, substantial, and detailed plan; a showing that probation can correct the misconduct; and a finding that probation serves the public and the profession. The court, echoing In re Stockwell, concluded probation is generally inappropriate where dishonesty is central because supervision cannot reliably police dishonesty. Respondent’s proposed plan lacked:

Effective safeguards tailored to the misconduct (e.g., verifiable supervision, auditing mechanisms).
Measurable goals and concrete structural changes.
Credible recognition of the wrongdoing and its impact (the panel found he continued to deflect blame at hearing).

The Restitution Condition and Its Significance

The court conditioned reinstatement on full restitution of $155,000 to K.L., reflecting the upper end of the client’s estimated loss attributable to the lawyer’s misconduct. Several features stand out:

Quantified client harm. The record quantified how the missed admission deadline and subsequent litigation posture cost K.L. his share in both estates (apart from specific assets he retained), leaving him roughly $118,000–$155,000 short. The court chose the high end.
Gatekeeping function. Reinstatement is inaccessible unless and until restitution is made and respondent proves fitness under Rule 232—a pointed measure when the lawyer lacks malpractice insurance and the client otherwise faces collection challenges.
Ethical restoration. Conditioning reinstatement on making the client whole embeds restorative justice into the disciplinary framework and deters future attempts to externalize the cost of lawyer misconduct to clients.

Procedural Posture: Stipulations and “Deemed Admitted” Findings

Respondent stipulated to multiple violations. He later offered inconsistent testimony attempting to soften or reframe those admissions (e.g., suggesting uncertainty about whether the will had been delivered). The panel expressly credited the stipulations over contrary testimony. Because respondent filed no exceptions to the panel report, the Supreme Court treated the panel’s findings and legal conclusions as admitted under Rule 228(g). The case underscores:

Stipulations carry real weight; attempts to retreat from them at hearing will be rejected.
Failure to file exceptions results in binding adoption of panel findings and legal conclusions by the Supreme Court.

Impact

For Kansas Practitioners

Dishonesty magnifies sanctions. An initial negligent error (missed filing mechanics) became an indefinite suspension because of sustained dishonest, self-protective conduct and client harm.
Restitution as reinstatement gate. Expect restitution to be required—and quantified—when client losses are calculable, particularly where the lawyer’s conduct was dishonest and self-serving.
Probation is likely off the table in dishonesty cases. Any probation plan must be robust, supervised, measurable, and candid about wrongdoing. Where deception is central, probation will likely be denied.
Fees for fixing your own mistake are unreasonable. Charging for efforts caused by the lawyer’s error may violate KRPC 1.5. Attorney’s liens premised on such charges are vulnerable.
Conflicts from self-interest must trigger withdrawal. When a lawyer’s personal exposure or reputational concern materially limits the representation, Rule 1.7(a) is implicated. Immediate conflict analysis and withdrawal are required.
Candor is non-negotiable. Allowing a falsehood to stand—even if uttered by co-counsel—violates KRPC 3.3 if the lawyer knows it is false and fails to correct it.

For Probate and Estate Lawyers

File the original will with the petition when producible. E-filing the petition without the will, when the will can be produced, jeopardizes probate. Local rules matter; know them.
Respect the six-month clock. K.S.A. 59-617 is strict. Admission must occur within six months; a timely petition without the original will attached can still doom probate.
Do not misuse K.S.A. 59-618. The “innocent beneficiary” safety valve applies only to knowing withholding by someone else; invoking it to excuse a lawyer-caused failure is both legally unsound and ethically perilous.

For Courts and Discipline Authorities

Independent sanctioning role. The court reaffirmed it may depart upward from ODA and panel recommendations where dishonesty and client harm warrant it.
Sanctions can be restorative. Quantified restitution conditions balance discipline with client remediation.
Clarity on probation in dishonesty cases. The decision operationalizes Stockwell’s caution: even detailed supervision is ill-suited to guard against dishonesty.

Complex Concepts Simplified

Indefinite suspension: The lawyer’s license is suspended without a set end date. Reinstatement is not automatic; the lawyer must petition, undergo a hearing under Rule 232, and meet any conditions (here, full restitution), demonstrating present fitness to practice.
Clear and convincing evidence: A high evidentiary standard requiring the fact-finder to be firmly convinced of the truth of the allegations.
Candor toward the tribunal (KRPC 3.3): A duty to avoid false statements of fact or law and to correct any previously made material falsehoods.
Conflict of interest—personal interest (KRPC 1.7(a)): When a lawyer’s own interests (e.g., avoiding malpractice exposure) materially limit their ability to represent the client, the lawyer must not continue the representation absent strict compliance with conflict rules—and often must withdraw.
Reasonable fees (KRPC 1.5): Fees must reflect the time and labor appropriately expended for the client’s benefit, considering the difficulty and results obtained; billing to fix one’s own error is typically unreasonable.
K.S.A. 59-618 “innocent beneficiary” exception: A narrow provision letting a will be admitted after six months if someone knowingly withheld it. The withholder becomes liable for resultant damages and fees. It does not excuse missed deadlines caused by attorney mishandling.
“Deemed admitted” panel findings (Rule 228(g)): If a respondent does not file exceptions to the hearing panel report, the Supreme Court treats those findings and conclusions as admitted.

Conclusion

In re McDowell is a pointed reaffirmation that dishonesty compounds discipline. What began as a competence failure in probate practice metastasized into years of misrepresentation, conflict of interest, and unreasonable billing—all in service of shielding the lawyer rather than serving the client. The Kansas Supreme Court responded with an indefinite suspension and a demanding reinstatement path, including a $155,000 restitution condition.

The decision clarifies several important themes: probate deadlines and filing mechanics are strict; candor to the court is absolute; conflicts born of self-protection must prompt withdrawal; and probation is unlikely where dishonesty drives the misconduct. Most consequentially, the court’s quantified restitution condition foregrounds client remediation as a prerequisite to renewed licensure. For Kansas lawyers, McDowell stands as a cautionary blueprint: when error occurs, transparency, accountability, and client-centered corrective action are non-negotiable. When dishonesty follows, the path back to practice will be steep, supervised, and, where harm is quantifiable, conditioned on making the client whole.