State ex rel. Oklahoma Bar Ass'n v. Barnes

2013 OK 19, 299 P.3d 493, 2013 WL 1314981, 2013 Okla. LEXIS 21
CourtSupreme Court of Oklahoma
DecidedApril 2, 2013
DocketSCBD No. 5853
StatusPublished

This text of 2013 OK 19 (State ex rel. Oklahoma Bar Ass'n v. Barnes) 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. Oklahoma Bar Ass'n v. Barnes, 2013 OK 19, 299 P.3d 493, 2013 WL 1314981, 2013 Okla. LEXIS 21 (Okla. 2013).

Opinion

REIF, V.C.J.;

{1 On February 21, 2012, the Oklahoma Bar Association, acting through the Chairman of the Professional Responsibility Commission and the General Counsel, filed a complaint with the Office of the Chief Justice against attorney Lagailda F. Barnes (Respondent). The complaint sought discipline of Respondent for alleged professional misconduct, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S8. 2001, Ch. 1, App. 1-A. The complaint alleged that Respondent violated Rule 1.8, RGDP, 5 0.8.2011, Ch.1, App. 1-A, and Rules 1.15 and 8.4(c), Rules of Professional Conduct (RPC), 5 0.8.2011, Ch. 1, App. 3-A. The complaint asked this Court to impose discipline for such misconduct as the Court may find equitable and proper.

12 The pertinent facts upon which the complaint was based are as follows. In August 2008, Respondent received funds in the amount of $48,496.12 on behalf of her client who was in prison at the time. These funds came from a probate case. Respondent had authority to receive and disburse these funds, pursuant to a power of attorney executed by the client. Respondent agreed that she would periodically disburse funds during his incarceration as he may direct and safek-eep the remainder until his release from prison.

T3 When released from prison in March 2011, the client requested all of his remaining funds to be delivered to him in lump sum. Respondent initially told the client that the funds were "unavailable," but eventually revealed that she had spent the funds. She promised she would "recoup it as quickly as possible." At this time, Respondent gave client $1,000 and told him that she was going to get a loan to repay the entire amount. From March to June 2011, Respondent had several conversations with client and made two more payments of $1,000. In each conversation with client, Respondent told client he had the right to file a complaint with the bar association or report this matter to the district attorney. Respondent's initial application for a loan was denied.

T4 In June, 2011, Respondent made a second application for a loan. This loan took almost three months to complete, but when approved, its proceeds were used to repay client. During the time the loan was being processed, Respondent went to Mississippi, was hospitalized, and did not return to Oklahoma until September 27, 2011. Upon her return to Oklahoma, she told client that she would repay him from the loan that was due to close on September 30, 2011.

4 5 When client did not hear from Respondent at the beginning of September, the client hired a new attorney to help him recoup the funds. On September 19, 2011, the new attorney wrote a letter to the General Counsel of the Bar Association stating that he had been in contact with Respondent and that while she had promised payment, it had not been forthcoming to date. Less than three weeks later, the new attorney sent the General Counsel a letter on October 7, 2011, reporting that Respondent came to his office and paid the client in full plus interest. The letter further stated: "[Respondent] had worked very hard to obtain these funds and was very concerned about making [the client] whole in this transaction. Health problems simply prevented her from handling it in a timely manner." The new lawyer did not charge client for the assistance he provided in facilitating the repayment to client.

16 On March 28, 2012, a panel of the Professional Responsibility Tribunal (PRT) held a hearing concerning the allegations in the complaint. Respondent appeared before the PRT. The aggrieved client appeared and confirmed that he had been repaid with interest. He told Respondent it was nice to see her and related that Respondent and her husband were "good people." The investigator for the Bar Association testified that Respondent was very cooperative and volun[496]*496tarily produced all the records pertaining to the matter.

T7 In addition to the testimony of the aggrieved client and the Bar Association's investigator, the PRT received testimony from Respondent and four witnesses called by Respondent. The PRT also admitted exhibits offered by the General Counsel and Respondent. Based upon this evidence, the PRT found Respondent violated Rule 1.3, RGDP, 5 0.8.2011, Ch.1l, App. 1-A, and Rules 1.15 and 8.4(c), Rules of Professional Conduct (RPC), 5 0.8.2011, Ch. 1, App. 3-A. In deciding the discipline to recommend for these violations, the PRT took into account that Respondent (1) made full restitution to the client plus interest, (2) had no previous Bar disciplinary actions taken against her, and (8) cooperated with the Bar upon filing the complaint. The PRT felt these factors mitigated disbarment as discipline and concluded that more appropriate discipline would be suspension for two years and a day.

8 In briefing before this Court, the General Counsel concurred with the PRT's recommendation of suspension for two years and a day. In doing so, the General Counsel also took into consideration that Respondent (1) admitted all allegations against her in her answer, (2) provided all requested documents to the Bar Association's investigator, (8) expressed remorse for her actions, and (4) repaid client with interest.

19 In disciplinary matters, this Court possesses exclusive original jurisdiction. State of Oklahoma ex rel. Oklahoma Bar Association v. Phillips, 2002 OK 86, ¶ 15, 60 P.3d 1030, 1036. "Our responsibility is ... to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession." Id. at 121, 60 P.3d at 1037 (footnote omitted.) "Discipline is imposed to maintain these goals rather than as punishment for the lawyer's misconduct." Id. Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts. Id.

110 "In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, this court conducts a full-scale, nondeferential, de novo examination of all relevant facts." State ex rel. Oklahoma Bar Association v. Wallace, 1998 OK 65, ¶ 6, 961 P.2d 818, 822-23 (footnotes omitted). While helpful, the recommendations of the PRT are not binding. Id.

{11 "The severity of the sanction for professional misconduct depends upon all the cireumstances, including the wilfulness and seriousness of the violations, the respondent's willingness to acknowledge the seriousness of the wrongdoing and to take responsibility for it, and the degree of cooperation the respondent demonstrates in the investigation and resolution of the grievances." Id., 132, 961 P.2d 818, 828. "We evaluate a claim that an attorney has mishandled a client's funds using three increasing levels of culpability: (1) commingling; (2) simple conversion; and (8) misappropriation, also known as theft by conversion or otherwise." State ex rel. Oklahoma Bar Association v. Combs, 2007 OK 65, ¶ 13, 175 P.3d 340, 346. In cases of misuse of a client's funds, there is a wide range of discipline, depending generally on the degree of harm caused the client. State of Oklahoma ex rel. Oklahoma Bar Association v. Briggs, 1999 OK 76, ¶ 17, 990 P.2d 869, 873.

112 Upon de novo review, we find by clear and convincing evidence that Respondent violated Rule 1.3, RGDP, and Rules 1.15 and 84(c), RPC, by converting her client's funds, and that such violations constitute professional misconduct.

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Related

State Ex Rel. Oklahoma Bar Ass'n v. Wallace
1998 OK 65 (Supreme Court of Oklahoma, 1998)
State Ex Rel. Oklahoma Bar Ass'n v. Briggs
1999 OK 76 (Supreme Court of Oklahoma, 1999)
State Ex Rel. Oklahoma Bar Association v. Combs
2007 OK 65 (Supreme Court of Oklahoma, 2007)

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Bluebook (online)
2013 OK 19, 299 P.3d 493, 2013 WL 1314981, 2013 Okla. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-barnes-okla-2013.