State Ex Rel. Oklahoma Bar Ass'n v. O'Neal

1993 OK 61, 852 P.2d 713, 64 O.B.A.J. 1411, 1993 Okla. LEXIS 76, 1993 WL 150642
CourtSupreme Court of Oklahoma
DecidedMay 4, 1993
DocketSCBD 3794
StatusPublished
Cited by28 cases

This text of 1993 OK 61 (State Ex Rel. Oklahoma Bar Ass'n v. O'Neal) 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. O'Neal, 1993 OK 61, 852 P.2d 713, 64 O.B.A.J. 1411, 1993 Okla. LEXIS 76, 1993 WL 150642 (Okla. 1993).

Opinions

HODGES, Chief Justice.

Complainant, Oklahoma Bar Association, alleged two counts of misconduct warranting discipline against respondent attorney, John Michael O’Neal. . The Professional Responsibility Tribunal (PRT) found that respondent’s conduct violated rules 5.51 and 8.12 of the Oklahoma Rules of Professional Conduct and rule 5.2 of the Rules Governing Disciplinary Proceedings.3 After a review of the record, we find the PRT’s statement of facts to be accurate. The PRT recommended that the respondent be suspended from the practice of law for six months. The respondent argues that six-month suspension is too harsh. He also argues that the costs of these proceedings should be reduced.

[715]*715The uneontested facts are as follows:

On July 19, 1990, respondent was suspended from the practice of law for nonpayment of bar dues and non-compliance with the Mandatory Continuing Legal Education (MCLE) requirements. On June 26, 1991, while suspended from the practice of law, respondent filed, in the United States Bankruptcy Court for the Western District of Oklahoma, two voluntary petitions: (1) In Re Holtzshue Hardware, Inc., Case No. 91-04521-TS and (2) In Re Frederick W Holtzshue, Jr., and Gloria E. Holtzshue, Case No. 91-04518-TS. The respondent at or near the time of filing the petitions, decided to pay $500.00 toward a bankruptcy seminar in San Antonio, Texas, rather than pay the $500.00 toward reinstatement to the Bar. Respondent was reinstated to the practice of law on July 30, 1991.

The evidence further shows that on August 7, 1991, the General Counsel for complainant mailed a letter, which was not certified, to the respondent. The purpose of the letter was to notify the respondent that the complainant was initiating an investigation into respondent’s filing of the two bankruptcy petitions. The respondent testified that he never received the letter. However, the Oklahoma Bar Association’s file did not contain a returned letter.

General Counsel testified that on September 11, 1991, he mailed a letter by certified mail to the respondent notifying him of the investigation. The respondent did not claim the letter and did not respond.

The respondent argues that a reprimand is a sufficient discipline under the facts. He testified that he filed the two petitions only after seeking other attorneys to handle the matters. He could not obtain other legal representation for his clients. Rather than leave his clients without representation, he chose to act as their attorney. He also argues that in light of his financial situation that he should not be ordered to pay the full amount of these proceedings.

There are no published opinions in Oklahoma involving a lawyer who has practiced law after being suspended administratively. The American Bar Association’s Standards for Imposing Lawyer Sanctions (1991), suggests that a court answer four questions prior to determining an appropriate sanction:

(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)
(2) What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly, or negligently?) and
(3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct? (Was there a serious or potentially serious injury?) and
(4) Are there any aggravating or mitigating circumstances?

As to the respondent’s practicing law while under suspension, the respondent violated an ethical duty not only to the legal system and his profession but also to his client. See Oklahoma Rules of Professional Conduct, rule 5.5. The respondent knew at the time of the filing of the petitions that he was under suspension. Apparently there was no injury to his clients because of his misconduct.

In considering the mitigating circumstances, there is no evidence of a prior disciplinary record. Although the respondent expected to be paid for his services, we also find that this was not the respondent’s primary concern and that he did not act out of a selfish motive.

In reference to the respondent’s failure to respond to the letter sent by the complainant, neither party cites any cases involving this issue. Rule 8.1 of the Rules of Professional Conduct requires the lawyer “to respond to a lawful demand for information from an admissions or disciplinary authority.” Under rule 5.2 of Rules Governing Disciplinary Proceedings, after the complainant serves a copy of the relevant facts or allegations upon the lawyer under investigation, the lawyer is required to respond.4

[716]*716The respondent argues facts in his brief which were not presented to the PRT and are not part of the record before this Court. This Court will not consider such facts in reaching a decision. See Chamberlin v. Chamberlin, 720 P.2d 721, 723-24 (Okla.1986). The complainant sent notice to the respondent. There is no record that the notice was returned to the complainant. The complainant was then sent a certified letter which was not claimed and to which he did not respond. The PRT found that the respondent had violated 8.1 of the Oklahoma Rules of Professional Conduct and rule 5.2 of the Rules Governing Disciplinary Proceedings. We agree.

Even though we find that the respondent violated the Oklahoma Rules of Professional Conduct, the better procedure is for the complainant to initially notify a lawyer of a complaint by certified mail or personal service. The initial letter sent to the respondent was not sent by certified mail. Although not directly applicable to bar complaints, the Oklahoma rules of civil procedure provide for service in a manner that complies with due process requirements. See Okla.Stat. tit. 12, § 2004 (1981).

Section 2004 requires service by personal delivery of by mail. If the mail is chosen, then the notice must be by certified mail, return receipt requested and delivery restricted to the addressee. Id. at § 2004(C)(2)(b). Under section 2004(C)(2)(c), default judgment cannot be entered unless the record contains the receipt showing the delivery of the letter to the addressee or the returned envelope showing that the addressee refused delivery. Given the gravity of a complaint against a lawyer, we believe that in the future the same precautions should be taken in a bar disciplinary matter as a civil matter.

There is one other issue raised by the respondent. The respondent voluntarily testified that, during the time that he was under suspension, he represented two clients as a court-appointed lawyer in criminal matters. These two representations were not addressed in complaint, and the respondent was not notified that he would be charged with any violation in conjunction with these representations.

Rule 6.2 of the Rules Governing Disciplinary Proceedings requires that the complaint state “the specific facts constituting the alleged misconduct.” Rule 6.5 allows the complaint to be amended to include additional allegations and allows the respondent twenty days to answer. Because these rules were not followed, this Court declines to act on this allegation.

The complainant has filed a motion to access costs in the amount of $1,216.01.

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Bluebook (online)
1993 OK 61, 852 P.2d 713, 64 O.B.A.J. 1411, 1993 Okla. LEXIS 76, 1993 WL 150642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-oneal-okla-1993.