STATE, EX REL. OBA v. Vincent

2002 OK 40, 48 P.3d 797
CourtSupreme Court of Oklahoma
DecidedMay 14, 2002
DocketSCBD 4624
StatusPublished
Cited by4 cases

This text of 2002 OK 40 (STATE, EX REL. OBA v. Vincent) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE, EX REL. OBA v. Vincent, 2002 OK 40, 48 P.3d 797 (Okla. 2002).

Opinion

48 P.3d 797 (2002)
2002 OK 40

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
Steven W. VINCENT, Respondent.

No. SCBD 4624.

Supreme Court of Oklahoma.

May 14, 2002.

Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Allen M. Smallwood, Tulsa, OK, for Respondent.

*798 BOUDREAU, J.

I. Procedural History

¶ 1 The Complainant Oklahoma Bar Association (OBA) brought Rule 6 disciplinary *799 proceedings against Respondent attorney, Steven W. Vincent, alleging two counts of professional misconduct. Respondent was admitted to practice law in Oklahoma in 1978 and was so licensed at all times relevant to the events addressed herein. Respondent's official roster address is 403 S. Cheyenne Ave., # 304, Tulsa, Oklahoma 74103.

¶ 2 The Professional Responsibility Tribunal (Tribunal) conducted a hearing on December 5, 2001, where Respondent stipulated to violations of Rules 1.1, 1.2, 1.3, 1.4, 1.16(d), and 3.2 of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.1991 Ch. 1, App. 3-A, and Rule 5.2 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991 Ch. 1, App. 1-A. The Tribunal noted for purposes of enhancement of discipline that Respondent previously received one private reprimand from the Professional Responsibility Commission (Commission) on January 14, 2000, for (1) failing to attend a hearing which resulted in the client's case being dismissed, and (2) failing to timely respond to a motion which resulted in a judgment against his client for attorney fees. Upon these findings, the Tribunal recommends Respondent be publicly censured. The OBA and Respondent recommend Respondent be privately censored.

II. Standard of Review

¶ 3 We review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. See State ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907; Rule 6.12(c), RGDP.

III. Count I, Wilburn Complaint

¶ 4 Respondent was appointed by the court to represent Carol Wilburn in defending a contempt citation filed by her ex-husband, Carl Burt, for failure to pay court ordered child support. The parties reached a settlement wherein Wilburn agreed to relinquish her interest in the marital home and her ex-husband agreed to forgo past due child support.[1] The settlement also included an agreement that Wilburn would receive her income tax refund. Wilburn was concerned DHS, who was assisting her ex-husband in collecting past due child support, might intercept her refund pursuant to standard collection procedures if it was not notified that her child support obligations were current. In the event DHS did intercept the refund, the parties agreed it would be returned to Respondent or Wilburn.

¶ 5 After the parties concluded the settlement, the court dismissed the contempt citation by court minute and Mr. Burt's attorney agreed to draft the journal entry reflecting the agreement. When Mr. Burt's attorney failed to promptly draft the journal entry, Respondent neglected to ensure a journal entry was filed or that DHS was notified of the settlement to protect Wilburn's rights.

¶ 6 Wilburn was unable to secure a journal entry until fourteen (14) months after the settlement was reached and only after she retained another attorney. Respondent did not cooperate with Wilburn's new counsel, failed to withdraw from the case after new counsel entered his appearance and failed to timely respond to Wilburn's requests her file be returned. Wilburn contends Respondent still has not returned all of her documents. DHS subsequently intercepted Wilburn's refund and forwarded it to Mr. Burt who refused to return the funds.

¶ 7 At a hearing before the Tribunal, the parties stipulated Respondent's conduct constituted professional misconduct in violation of Rules 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.16(d) (failing to take reasonable steps upon termination of representation to protect a client's interests) and 3.2 (expediting litigation) of the ORPC.

¶ 8 The ORPC imposes a mandatory duty upon attorneys to act promptly and diligently on matters and to communicate with clients. State ex rel. Oklahoma Bar Ass'n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1145. The record before us provides clear and convincing evidence Respondent failed to act with reasonable diligence and promptness, failed to promptly reply to reasonable *800 requests for information and the return of documents, and failed to make reasonable efforts to expedite Wilburn's case in violation of Rules 1.3, 1.4 and 3.2 of the ORPC. Such conduct by Respondent warrants discipline by this Court.

¶ 9 Although Respondent stipulated and the Tribunal found a violation of Rule 1.2 of the ORPC, we find the evidence insufficient to establish a violation of this Rule. There is no evidence of a dispute between Respondent and his client regarding the objectives of his representation. Respondent accordingly stands exonerated of that charge.

¶ 10 Although the OBA did not specifically charge Respondent with a violation of Rule 1.16(d) of the ORPC, Respondent stipulated and the Tribunal found he failed, upon termination of representation, to take reasonable steps to protect Wilburn's interests, such as cooperating with new counsel and surrendering client documents. The fact the OBA did not specifically charge a violation of Rule 1.16(d) is of no consequence. The provisions of Rule 6.2 of the RGDP demand only that the complaint set forth the facts constituting the misconduct and does not require the lawyer be notified of the specific disciplinary rule the misconduct violates.

¶ 11 The Complaint alleges a correct journal entry was not filed until Wilburn obtained new counsel and that Respondent failed to return Wilburn's documents. Respondent stipulated he was aware Wilburn had retained new counsel and that he failed to return calls from, or cooperate with, Wilburn's new attorney, and failed to return Wilburn's documents despite her requests. We find the record establishes by clear and convincing evidence Respondent violated Rule 1.16(d).

IV. Count II, Rollins Complaint

¶ 12 Frances Rollins, represented by Robert Benningfield, filed a tort action against Warehouse Market. The court later dismissed the case without prejudice. Benningfield refiled the case one year and one day following its dismissal. Warehouse Market responded to the refilling with a motion to dismiss asserting the statute of limitations. At this point, Respondent became involved in the case and filed a response to the motion to dismiss. The court granted Warehouse Market's motion and dismissed the case. In dismissing the case, the court entered two orders. Respondent filed an appeal with this Court thirty (30) days from the date of the second order. This Court dismissed the appeal as untimely. Respondent maintains he never received the first order and mistakenly relied on the filing of the second order as the point in which his appeal time began to run.

¶ 13 Rollins alleges that, in addition to handling the tort claim against Warehouse Market, Respondent agreed to represent her in a malpractice action against Benningfield. Respondent testified he never agreed to represent her in an action against Benningfield and that he specifically advised her he did not handle attorney malpractice claims.

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Bluebook (online)
2002 OK 40, 48 P.3d 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oba-v-vincent-okla-2002.