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

2002 OK 37, 51 P.3d 1198, 73 O.B.A.J. 1529, 2002 Okla. LEXIS 41, 2002 WL 925118
CourtSupreme Court of Oklahoma
DecidedMay 7, 2002
DocketNo. SCBD 4654
StatusPublished
Cited by22 cases

This text of 2002 OK 37 (State ex rel. Oklahoma Bar Ass'n v. Benefield) 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. Benefield, 2002 OK 37, 51 P.3d 1198, 73 O.B.A.J. 1529, 2002 Okla. LEXIS 41, 2002 WL 925118 (Okla. 2002).

Opinion

HODGES, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA), alleged four counts of misconduct warranting discipline against respondent attorney, Barry W. Benefield (Respondent). The complaint alleged that Respondent had violated rules 1.1,1 1.3,2 [1199]*11991.4,3 1.5(a),4 1.16(d),5 and 8.16 of the Oklahoma Rules of Professional Conduct (ORPC),7 and rule 5.2 8 of the Rules Governing Disciplinary Proceedings (RGDP).9

I. FACTS

¶ 2 The facts are stipulated and supported by the record.10

A. COUNT I

¶3 In July of 2000, Rita Brokeshoulder retained Respondent to file bankruptcy proceedings on her behalf. She paid Respondent $300.00 as a retainer. Brokeshoulder called Respondent several times about filing the bankruptcy petition. He responded to a few of the messages, but in September of 2000, he quit returning her calls altogether. He did some research in preparation for filing the bankruptcy. However, he never completed the petition or provided Brokesh-oulder with a draft. At the time the complaint against him was filed, Respondent had not returned any of the retainer and had not returned Brokeshoulder’s personal papers.

B. COUNT II

¶4 In April 2000, Clara Kaniatobe paid Respondent $300.00 to file a bankruptcy petition on behalf of her daughter Holly who was incarcerated. Respondent and Holly understood that he would monitor the efforts by the victim of Holly’s crime to seek restitution and file for bankruptcy if the victim obtained a judgment against Holly. Kaniatobe expected Respondent to file the bankruptcy petition during Holly’s incarceration.

¶ 5 Kaniatobe repeatedly urged Respondent to file the bankruptcy petition on behalf of Holly. Respondent would not respond to Kaniatobe’s messages and did not properly communicate with Holly concerning the bankruptcy proceedings.

¶ 6 Respondent failed to file the bankruptcy petition. Kaniatobe asked for a refund and for the return of personal papers. At the time complaint was filed, Respondent had not returned any papers or refunded the retainer. However, Respondent has reestablished a friendly relationship with Kaniatobe and Holly.

C.COUNT III

¶ 7 In July of 2000, Josephine Porter paid Respondent a $900.00 retainer to file a probate petition. Porter repeatedly urged Respondent to file the petition. Ini[1200]*1200tially, Respondent returned some of Porter’s messages but eventually ceased all communications with Porter. Finally, Porter, by certified letter, released Respondent as her attorney and requested the return of personal papers. Respondent did not respond to the letter and request. At the time the complaint was filed, Respondent had not refunded any of the retainer or returned the personal papers.

D. COUNT IV

¶ 8 When contacted by the OBA on May 4, 2001, asking Respondent to respond to two of the grievances, he failed to do so. He also failed to acknowledge an August 21, 2001 letter asking him to respond to the third grievance. On July 3, 2001, Respondent called the OBA and asked for an extension of time to file a response. Respondent and the OBA agreed that Respondent would file his responses no later than July 16, 2001. Respondent did not file his responses until July 24, 2001. Respondent agreed to meet with the OBA’s investigator on September 19, 2001, on September 21, 2001, and again on September 26, 2001, but failed to appear each time.

¶ 9 The Professional Responsibility Tribunal (PRT) held a hearing on the matter. Thereafter, Respondent reimbursed the complaining clients all attorney fees paid to him.

II.STANDARD OF REVIEW

¶ 10 The standard of review in attorney disciplinary proceedings is de novo.11 This Court decides whether misconduct has occurred and what discipline is appropriate.12 Accordingly, this Court is not bound by the PRT’s findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline which are only advisory.13

III.ENHANCEMENT

¶ 11 In April of 1991, the Professional Responsibility Commission privately reprimanded Respondent for similar behavior. He had been retained to acquire an original birth certificate for a client. He failed to take steps to obtain the birth certificate. Respondent was asked by the OBA to respond to the client’s grievance. He failed to file a written response, and his response was obtained by deposition pursuant to a subpoena.

IV. VIOLATIONS

¶ 12 The PRT found that Respondent violated the ORPC and should be disciplined. Rule 1.1 requires a lawyer to provide competent representation, including adequate preparation, and rule 1.3 requires diligence and promptness. Under rule 1.4, a lawyer is to keep a client reasonably informed about the status of a matter and to respond to reasonable requests for information. Pursuant to rule 1.5, a lawyer must charge a reasonable fee. Rule 1.16(d) provides that upon discharge from representation, a lawyer must surrender “papers and property to which the client is entitled” and refund any unearned advanced fee payments. Under rule 8.1 of the ORPC and 5.2 of the RGDP, a lawyer must respond within twenty days to the OBA’s request for information regarding a grievance against the lawyer. Respondent stipulated to violating these rules of conduct which govern lawyers’ actions. After reviewing the record, we agree that Respondent has violated rules 1.1,1.3,1.4,1.5,1.16(d) and 8.1 of the ORPC and rule 5.2 of the RGDP and should be disciplined for the violations.

V. DISCIPLINE

¶ 13 The purposes of lawyer discipline are to protect the public, protect the court, preserve the integrity of the bar, and deter misconduct by both the lawyer being disciplined and other members of the bar.14 The PRT and the OBA recommend that Respondent be publicly censured.

¶ 14 This Court has imposed discipline for neglect of clients’ matters. The discipline [1201]*1201has ranged from public censure to a two-year suspension.15 In State ex rel. Oklahoma Bar Ass’n v. Jenkins,16 this Court suspended a lawyer from the practice of law for two-years and one-day for neglecting his clients, failing to keep his clients informed, charging unreasonable fees, and misrepresenting facts to a court. In State ex rel. Oklahoma Bar Ass’n v. Brewer,17 this Court found public censure to be the appropriate discipline for a lawyer who failed to file appropriate papers to initiate proceeding for his client, failed to keep his client reasonably informed, and failed to respond to the OBA’s requests for information regarding grievances. In an earlier proceeding, the lawyer had been publicly reprimanded for failure to respond to the OBA’s request for information concerning a complaint. In State ex rel. Oklahoma Bar Ass’n v. Green,18

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Bluebook (online)
2002 OK 37, 51 P.3d 1198, 73 O.B.A.J. 1529, 2002 Okla. LEXIS 41, 2002 WL 925118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-benefield-okla-2002.