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

2012 OK 95, 289 P.3d 1283, 2012 Okla. LEXIS 104, 2012 WL 5869421

• Court: Supreme Court of Oklahoma
• Decided: November 20, 2012
• Docket: No. SCBD-5814
• Status: Published

Opinions

WINCHESTER, J.

1 The complainant, Oklahoma Bar Association, brought a Rule 6 disciplinary proceeding against the respondent, Jonna Lynn Reynolds, for neglect of cases, failure to keep clients informed of the status of their cases, collecting and retaining fees for which no services were provided, and engaging in conduct prejudicial to the administration of justice.

T2 On November 2, 2011, the Oklahoma Bar Association filed a complaint against the respondent consisting of five counts. In Count I, the Complaint alleged that Ruth Watkins hired the respondent to represent her interests in a collection matter. Watkins sought assistance in collecting money due her pursuant to her divorce decree. She paid $3,000 for the representation. Subsequently, Watkins made repeated attempts to contact the respondent over several months, but her calls were not returned. The respondent did no legal work on this matter and did not return the file materials. Watkins submitted a grievance on March 7, 2011. The Bar Association mailed copies of the grievance on two occasions, but Reynolds did not respond.

I 3 In Count II, the Complaint alleged that Kathy Dean Ballard hired the respondent to represent her son in a eriminal matter, and Ballard paid her $250. However, she did not communicate with Ballard again, and did not return any of the attorney fee. Ballard filed a grievance on March 30, 2011, and the Bar Association mailed copies of the grievance on two occasions, but as in the Watkins matter, Reynolds did not respond.

T 4 In Count III, Rodger D. Cameron paid respondent $100 to submit a complaint on his behalf, but the respondent ceased communications with Cameron, and did not respond to requests for information. After two notices from the Bar Association concerning the complaint, the Bar Association received no response from Reynolds.

15 In Count IV, Cecelia Kay McDaniels hired the respondent on or about August 7, 2009, to represent her in a dissolution of marriage, and paid her $1,000 for the representation and $187.30 for court filing fees. Although the respondent filed the matter on August 14, 2009, she did no further work on the matter, forcing McDaniels to hire substitute counsel to complete the matter. She stopped all communication with MeDaniels, and did not respond to requests for the return of any unearned portion of the attorney fee. MeDaniels filed a grievance on July 22, 2011. As in the other counts against Reynolds, she did not respond to the notices that the Bar Association sent.

T6 In Count V, Rodger Dewayne Sutter-field hired the respondent to represent him in a criminal matter, and paid a legal fee of $1,200. She appeared in court on his behalf on four hearing dates through October 2010. But she failed to appear on three other dates in 2010 and 2011. Sutterfield hired substitute counsel to conclude the matter. As with the previous four Counts, Reynolds stopped communicating with her client, and he submitted a grievance on August 5, 2011. When the Bar Association sent copies of the grievance, Reynolds did not respond.

17 When the Professional Responsibility Tribunal met for the hearing, the respondent appeared pro se, cross-examined the witnesses who had been called and examined by the Bar Association, and Reynolds testified on her own behalf, The respondent admitted, and the trial panel found that the she "basically abandoned all of her pending cases and clients in October 2010." She took fees without completing her cases, and failed to communicate with the Bar regarding complaints filed by her clients. The respondent testified to having problems with depression and the investigators for the Bar Association testified to behavior of the respondent that would be consistent with depression, but the trial panel found there were no mitigating factors presented. Although Reynolds alleged depression, she was neither taking medication nor attending counseling.

18 The Trial Panel found by clear and convincing evidence that respondent had violated the Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. In each of five Counts against the respondent, the trial panel found violations of the Oklahoma Rules of Professional Conduct 1.3,¹, 14,² 1.5³ 3.24 and 84(d) ⁵, as well as violations of the Rules Governing Professional Conduct 1.3⁶ and 5.2⁷ in each of the five Counts.

19 Regarding discipline enhancement, the panel found that Reynolds failed to acknowledge the seriousness of her professional misconduct or take any responsibility for her actions. She failed to effectively respond to the Bar's investigation and did not participate in any resolution of the grievances set forth in the Bar Association's Complaint. The respondent has been suspended since June 20, 2011, for failure to complete Mandatory Continuing Legal Education requirements. 'The Panel recommended to this Court the suspension of the respondent from the practice of law for two years and one day and that she pay the costs associated with this proceeding.

110 Repeatedly, this Court has emphasized that the purpose of disciplinary proceedings is not to punish the attorneys involved, but to protect the public. State ex rel. Oklahoma Bar Association v. Mothershed, 2008 OK 34, ¶ 42, 66 P.3d 420, 428. The Bar Association's Brief in Chief, concurring with the Trial Panel's Report, recommends suspending Reynolds for a period of two years and one day, and assessing the costs of the proceedings to the respondent.

"I 11 In State ex rel. Oklahoma Bar Association v. Whitebook, 2010 OK 72, 242 P.3d 517, Whitebook was suspended for two years and one day, and ordered to pay costs. This Court found that Whitebook failed to provide competent representation, failed to act with diligence in representing his clients, failed to keep his clients reasonably informed, failed to promptly comply with reasonable requests for information, and failed to charge a client a reasonable fee. Whitebook, 2010 OK 72, ¶ 17, 242 P.3d at 521. He also did not appear for the hearing before the Professional Responsibility Tribunal. Whitebook, 2010 OK 72, ¶ 11, 242 P.3d at 520. These failures violated rules 1.1, 1.3, 1.4, 1.5, and 8.1(b) of the ORPC, and Rule 5.2 of the RGDP. Whi-tebook, 2010 OK 72, 122, 242 P.38d at 522.

1 12 Like Whitebook, in State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, 142 P.8d 410, Beasley was also suspended for two years and one day, and ordered to pay costs. The Court found that Beasley violated the ORPC, rule 1.1 by his lack of preparation, rule 1.3 by his lack of diligence and promptness, rule 1.4 by his failure to communicate with his clients, rule 1.16(d) by his failure to refund unearned fees, rule 8.1(b) by his failure to provide information to the Bar Association, and rule 8.4(c) by his misrepresenting a court date. He also violated the RGDP, rule 1.3 by bringing discredit upon the legal profession, and rule 5.2 by his failure to respond to the grievances. Beasley, 2006 OK 49, ¶ 24, 142 P.3d at 416-417. Beasley appeared before the Professional Responsibility Tribunal, and stipulated that the allegations were admitted. Beasley, 2006 OK 49, ¶ 6, 142 P.3d at 412.

113 On our de novo review, we find by clear and convincing evidence that Reynolds violated the ORPC and the RGDP. This professional misconduct warrants discipline and the suspension of her license to practice law for a period of two years and one day, beginning from the date she was suspended for the MCLE violation, June 20, 2011. The Bar Association filed an application to assess the costs of the disciplinary proceedings in the amount of $1,882.66. Reynolds has not filed an objection to this application. She is ordered to pay costs in the amount of $1,332.66 within ninety days after this opinion becomes final, pursuant to RGDP, Rule 6.16⁸

THE RESPONDENT IS SUSPENDED FOR TWO YEARS AND ONE DAY, AND ORDERED TO PAY COSTS.

CONCUR: TAYLOR, C.J., WATT, WINCHESTER, EDMONDSON and COMBS, JJ. CONCURRING IN PART; DISSENTING IN PART: REIF, J. DISSENT: COLBERT, V.C.J., KAUGER, GURICH, JJ.

REIF, J., CONCURRING IN PART; DISSENTING IN PART, I CONCUR TO SUSPEND RESPONDENT FOR TWO YEARS, BUT DISSENT TO IMPOSING SUSPENSION BEYOND TWO YEARS.

KAUGER, J., DISSENTING, WITH WHOM GURICH, J. JOINS.

1 . ORPC 1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client." ~

2 . ORPC 1.4 provides:

"a) A lawyer shall:

"(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

"(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

"(3) keep the client reasonably informed about the status of the matter;

"(4) promptly comply with reasonable requests for information; and

"(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.

"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

3 . ORPC 1.5 provides:

(a) "A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

"(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

"(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

"(3) the fee customarily charged in the locality for similar legal services;

"(4) the amount involved and the results obtained;

"(5) the time limitations imposed by the client or by the circumstances;

"(6) the nature and length of the professional relationship with the client;

"(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

"(8) whether the fee is fixed or contingent.

"(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

"(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of determination.

"(d) A lawyer shall not enter into an arrangement for, charge, or collect:

"(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

"(2) a contingent fee for representing a defendant in a criminal case.

"(e) A division of a fee between lawyers who are not in the same firm may be made only if:

"(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

"(2) the client agrees to the arrangement and the agreement is confirmed in writing; and

"(3) the total fee is reasonable."

5 . ORPC 8.4(d) provides: "It is professional misconduct for a lawyer to ... (d) engage in conduct that is prejudicial to the administration of justice

6 . RGPC 1.3 provides: "The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."

7 . RGPC 5.2 provides: "After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete' or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance (or, in the case of an investigation instituted on the part of the General Counsel or the Commission without the filing of a signed grievance, a recital of the relevant facts or allegations) upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon expressed constitutional grounds. Deliberate misrepresentation in such response shall itself be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall make such further investigation of the grievance and response as the General Counsel may deem appropriate before taking any action."

8 . RGDP Rule 6.16 provides:

''The costs of investigation, the record, and disciplinary proceedings shall be advanced by the Oklahoma Bar Association (or the Professional Responsibility Commission, if provision therefor has been made in its budget). Where discipline results, the cost of the investigation, the record, and disciplinary proceedings shall be surcharged against the disciplined lawyer unless remitted in whole or in part by the Supreme Court for good cause shown. Failure of the disciplined lawyer to pay such costs within ninety (90) days after the Supreme Court's order becomes effective shall result in automatic suspension from the practice of law until further order of the Court."

4 . ORPC 3.2 provides: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."