State Ex Rel. Oklahoma Bar Ass'n v. Borders

1989 OK 101, 777 P.2d 929, 1989 Okla. LEXIS 132, 1989 WL 74820

• Court: Supreme Court of Oklahoma
• Decided: July 6, 1989
• Docket: SCBD 3484
• Status: Published

Opinions

OPINION BY ORDER

HODGES, Chief Justice.

This matter comes before the Court upon Complainant’s complaint and request for professional sanctions against respondent lawyer. Three counts of misconduct were alleged and the matter was duly heard by the Trial Panel of the Professional Responsibility Tribunal, which made conclusions of law and forwarded its recommendations to the Court.

Upon review of all the matters contained of record herein, the Court finds as follows:

As to Count I

Respondent was retained by Randy Ev-ins to represent Evins in a felony prosecution in Tulsa County, Case No. CRF-84-3617. Following trial Evins was found guilty of Burglary in the Second Degree After Former Conviction of a Felony and on December 20,1984, he was sentenced to a prison term of 27 years. At the sentencing hearing respondent requested orally that he be permitted to withdraw from representing the defendant, which request was allegedly then and there denied by the trial court. The trial court further ordered respondent to take all steps necessary to perfect the defendant’s appeal of his conviction, including a Motion for New Trial. Thereafter, respondent timely filed a Notice of Intent to Appeal and a Designation of Record. Complainant alleges that respondent did not, however, file a Petition in Error or brief on appeal, nor did he undertake any further action on behalf of the defendant.

Complainant presented evidence that respondent had failed and neglected to communicate with the defendant’s mother who was seeking information about the status of defendant’s appeal and that he failed and neglected to cooperate with the Tulsa County Public Defender’s office to protect the defendant’s rights on appeal.

After hearing the evidence the Trial Panel concluded as to Count I that complainant had failed to present clear and convincing evidence to prove its allegation that no appeal had been perfected. Rule 6.12(c), Rules Governing Disciplinary Proceedings. The panel did find clear and convincing evidence that by his failure to communicate and cooperate with those people seeking to assist the defendant on appeal respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) [see now, Rule 1.3, Rules of Professional Conduct, 5 O.S.1988 Supp., Ch. 1, App. 3-A].

Upon review of the evidence of record in support of Count I, this Court agrees that the evidence presented fails to clearly and convincingly show neglect on the part of respondent of his responsibility to perfect an appeal. We further agree that respondent’s actions in failing to communicate with defendant’s mother and with the Public Defender’s office are acts of professional malfeasance which amount to neglect and which merit discipline.

As to Count II

Upon being informed of the complaint of Evins, respondent made an answer in which he affirmatively alleged that the trial court had in fact granted his oral motion to withdraw as defendant’s counsel, though the court records do not reflect the entry of such an order. In Count II complainant alleges that this allegation amounts to an attempt by respondent to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of DR 1-102(A)(4) [see now, Rule 8.4(c)].

During proceedings before the Trial Panel respondent reasserted and argued this defense by testifying to the fact of the entry of the order allowing withdrawal and by stating the trial court’s records were in error or incomplete. The panel heard competent though contested evidence on the issue and concluded that complainant had failed to meet its burden of proving its allegation as to this count by clear and convincing evidence.

This Court’s review of the record leads us to find the conclusion of the Trial Panel was correct and the evidence as to Count II does not support the imposition of professional discipline.

As to Count III

In this count complainant alleged and presented evidence that respondent lost an abstract of title which had been entrusted to him by Harvey and Linda Lewis, that he failed and neglected to cooperate with them or with the Grievance Committee of the Tulsa County Bar Association in efforts to resolve the matter, and that ultimately the Lewises were forced to pay to have a replacement abstract compiled and certified. The count further alleged that Respondent did not reimburse the Lewises for their expense until after he had been notified of their complaint by complainant.

After hearing evidence on this count the Trial Panel concluded that respondent had violated DR 9-102 [see now, Rule 1.15] by failing to preserve the property of a client, and had violated DR 6-101(A)(3) [see now, Rule 1.3] by failing to act diligently to represent his clients’ interests.

A review of the evidence by this Court supports the findings and conclusions of the Trial Panel and we find respondent’s actions as set out in Count III merit professional discipline.

CONCLUSION

This Court has previously held in the case of State ex rel. Oklahoma Bar Ass’n v. Braswell, 663 P.2d 1228, 1232 (Okl.1983), that where, as here, an attorney is guilty of neglect of a legal matter without affirmative acts of harmful conduct, the appropriate discipline is public censure.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that respondent, William D. Borders, be, and he is hereby, censured and reprimanded for the reasons set out hereinabove.

IT IS FURTHER ORDERED that respondent pay all costs incurred by complainant in the course of these proceedings.

DONE BY THE SUPREME COURT IN CONFERENCE THIS 5th DAY OF JUNE, 1989.

LAVENDER, DOOLIN, ALMA WILSON, KAUGER and SUMMERS, JJ., concur. HARGRAVE, C.J., and OPALA, V.C.J., dissent. SIMMS, J., not participating.