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

914 P.2d 1046, 1996 WL 132255
CourtSupreme Court of Oklahoma
DecidedApril 12, 1996
DocketSCBD No. 4072, OBAD No. 1189
StatusPublished
Cited by21 cases

This text of 914 P.2d 1046 (State Ex Rel. Oklahoma Bar Ass'n v. Briery) 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. Briery, 914 P.2d 1046, 1996 WL 132255 (Okla. 1996).

Opinions

HARGRAVE, Justice:

The Respondent, Clifford Briery II, OBA # 1122, and the Oklahoma Bar Association entered into a stipulated statement of facts and conclusions of law and agreed recommendation for discipline. The Trial Panel of the Professional Responsibility Tribunal approved the stipulated facts and legal conclusions, but did not accept the agreed recommendation for discipline, and made a different recommendation to this Court. The stipulated facts and conclusions of law are set out below.

COUNT I: Richerson

John Richerson hired Respondent, paying him an attorney fee and an additional $738.00 for payment of fines and court costs on traffic charges for which Richerson had been arrested. The Respondent did not appear in court on the scheduled date and did not pay Mr. Richerson’s fines and costs as he had promised, but instead converted the $738.00 to his own use and benefit. As a result, a bench warrant was issued for Mr. Richer-son’s arrest.

The Respondent deposited the funds in his attorney trust account and used those funds [1048]*1048to pay personal bills from the trust account. These actions occurred in April, July and August of 1993. It is stipulated that these actions constituted conversion and commingling of client funds in violation of Rules &4l(c), 1.15, 1.1 and 1.3 of the Oklahoma /Rules of Professional Conduct, and Rule 1.4(b) of the Rules Governing Disciplinary Proéeedings.1 ' /

COUNT II — Judkins

■Leon Judkins was arrested in July, 1993 for/D.;U.I. in Cleveland county. He hired Respondent and paid him approximately $300.00 in attorney fees. The Respondent failed to take any action in the matter, failed to appear in court and failed to notify the client that nothing had been done. As a result, a bench warrant was issued for Mr. Judkins’ arrest and he had to hire another lawyer to complete the case. It is stipulated that Respondent’s actions violated Rules 8.4(c), 1.5, 1.1, 1.3 and 1.4 of the Oklahoma Rules of Professional Conduct.2

COUNT III

Count III stipulates that before, during and after the period from April to October, 1993, Respondent misused his attorney trust account by: a) writing checks out of the account for personal bills, expenses and routine purchases; b) writing checks for personal expenses when there were insufficient funds in the account to cover the checks; c) commingling his own funds with client trust funds and converting client trust funds to his own use and benefit; and d) routinely depositing funds into the account that did not have any characteristics of trust funds or client funds. It is stipulated that these actions violated Rules 1.15 and 8.4(c) of the Oklahoma Rules of Professional Conduct.

MITIGATION

The parties stipulated that Respondent was suffering from excessive abuse of alcohol during the times set forth to an extent that it impaired his ability to conduct his affairs efficiently and properly in the practice of law. The Respondent recognized his problem with alcohol and took affirmative steps toward productive rehabilitation. The Respondent was experiencing extreme personal, financial and family problems during the times set forth. The Respondent has resolved his personal, financial and family problems to an extent that they no longer impair his ability to function. Respondent has restored to all aggrieved complaining parties the money paid to him for his legal services.

ENHANCEMENT

Although not a part of the stipulation between the parties, the Bar’s amended complaint reflected that Respondent was suspended by this court for seventeen months on November 12, 1986, in OBAD # 710, SCBD #3301, State ex rel. Oklahoma Bar [1049]*1049Association v. Briery, 57 OBJ 2830 (Nov. 16, 1986). Respondent was reinstated after complying with Rule 11, Rules Governing Disciplinary Proceedings after the suspension had expired.

DISCUSSION

The parties agreed as a proposed recommendation for discipline that Respondent’s license to practice law should be suspended for a period of two years and one day. As a result, Respondent would be required to comply with Rule 11, Rules Governing Disciplinary Proceedings, in order to be reinstated after the suspension period ended. The Trial Panel of the Professional Responsibility Commission recommended that the Respondent be suspended from the practice of law for a period of three (3) years and recommended additionally that the Respondent attend Alcoholics Anonymous twice a week during the period of suspension and participate in the Lawyers Helping Lawyers program. The Trial Panel further recommends that the Respondent be required to submit documentation of his participation in and compliance with these programs prior to seeking readmission. They recommend that Respondent be required to follow the provisions of Rules 11.1 through 11.7 of the R.G.D.P. for seeking readmission to the Bar and that Respondent continue to comply with mandatory continuing legal education requirements.

The Bar’s brief to this Court asks that we follow the agreed recommendation of two years and one day. They argue that Respondent’s problem appears to be the repeated abuse of alcohol and severe neglect of client matters because of the abuse. Although the allegations involve misuse of clients’ funds, they observe that Respondent did not seek to intentionally convert client funds. They point out that both counts involving conversion of client funds occurred just prior to or at the time Respondent was an inpatient at an alcohol treatment center. When Respondent came back from the treatment center, he took care of the missing funds and the missed court appearances. The Bar relies on the case of State of Oklahoma ex rel. Oklahoma Bar Association v. Meek, 895 P.2d 692 (Okla.1994) as authority for its recommendation. The Bar considers Respondent’s actions in the case at bar to constitute “simple conversion” as defined in Meek. The Bar believes that there has been no intentional infliction of grave economic harm in the mishandling of client funds in this case. They note that Respondent appears to have been sober for a substantial period of time since leaving inpatient treatment in Arizona in 1994. They advise that Respondent is sober now and has been doing work for other lawyers while winding up his practice. They remind this Court that if we follow the agreed recommendation for discipline, Respondent will have to comply with Rule 11, R.G.D.P. for reinstatement and will have to be reexamined for fitness to practice law at that time.

The Respondent testified before the Trial Panel that he has not taken any new cases since his return from the alcohol treatment center and that he has been winding up his existing cases. He testified that before leaving for the treatment center in February, 1994, he turned over all óf his misdemeanor criminal defendant clients to an attorney in Norman for handling. Respondent also contacted the chief misdemeanor judge in Cleveland county and the chief presiding district judge in Cleveland county explaining the circumstances and asking for any cooperation that might be given to his clients as a result of their being transferred to a new attorney. He also contacted every bail bondsman with whom he had ties in order to let them know the situation. He testified that he tried to personally notify as many of the clients as possible.

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State Ex Rel. Oklahoma Bar Ass'n v. Briery
914 P.2d 1046 (Supreme Court of Oklahoma, 1996)

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Bluebook (online)
914 P.2d 1046, 1996 WL 132255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-briery-okla-1996.