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In re Florida Bar McGraw5/12/2005
Original Proceeding - The Florida Bar
We have for review a referee's report recommending that Andrew R. McGraw be reinstated to the practice of law in Florida. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained herein, we disapprove the referee's recommendation that McGraw be reinstated.
FACTS
After conducting a full hearing, the referee issued a report making the following detailed findings of McGraw's long procedural history before the Bar.
Criminal and Disciplinary History
In 1997, McGraw pled nolo contendere to a charge of misdemeanor battery and was sentenced to eleven months in jail. On March 25, 1997, this Court issued an order imposing an emergency suspension. Fla. Bar v. McGraw, 691 So. 2d 1082 (Fla. 1997) (table citation). Thereafter, McGraw was the subject of two additional disciplinary proceedings, in which he received suspensions. See Fla. Bar v. McGraw, 717 So. 2d 540 (Fla. 1998) (table citation) (imposing two-year suspension and requiring respondent to enter into a three-year contract with Florida Lawyers Assistance, Inc.); Fla. Bar v. McGraw, 718 So. 2d 172 (Fla. 1998) (table citation) (imposing ninety-one day suspension).
Pursuant to this Court's orders, and upon release from jail, McGraw entered into a three-year contract with Florida Lawyers Assistance, Inc. (FLA). Among other requirements, he agreed to (1) totally refrain from the use of all mood altering substances, including alcohol; (2) report to FLA's monitor, Stanley Spring, on a monthly basis; (3) participate in a twelve-step program; and (4) submit to random drug and alcohol tests. In violation of this agreement, in April 1998, McGraw tested positive for cocaine. Further, in January 1999, McGraw was charged with driving under the influence (DUI). He pled nolo contendere to the lesser offense of reckless driving.
First Petition for Reinstatement
In January 2000, McGraw filed his first petition for reinstatement to the Bar. McGraw failed to disclose the 1999 DUI charge in that petition. Also, in March 2000, a female employee at a retail store filed a police report stating that while she was working, McGraw grabbed her in an inappropriate manner. Although no criminal charges were filed, evidence indicated that McGraw had consumed alcoholic beverages preceding the incident.
In April 2000, Myer Cohen, the Executive Director of FLA, provided an affidavit detailing McGraw's activities from August 1996 to April 2000. Mr. Cohen concluded that McGraw's chemical dependency was not in sustained remission and that McGraw's condition would impair his ability to practice law. After receiving Mr. Cohen's affidavit, McGraw's counsel sought and obtained a continuance of the reinstatement hearing.
Thereafter, on June 5, 2000, McGraw entered the Twelve Oaks Treatment Center for substance abuse treatment. He was released eighteen days later. In the medical discharge summary, the Medical Director for Twelve Oaks Treatment Center, Dr. Rick Beach, stated that McGraw's prognosis for abstinence from alcohol and drugs was extremely poor and also expressed serious reservations concerning McGraw's return to the practice of law.
In December 2000, at the final hearing on the first petition for reinstatement, McGraw presented the referee with another three-year FLA contract, which was dated December 5, 2000. Although the contract was dated and signed by Mr. Cohen and McGraw, McGraw had not submitted the executed agreement to FLA. Next, in January 2001, before the referee finalized his report, McGraw tested positive for cocaine during a random drug test. The Bar moved for an evidentiary hearing
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