STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,
Complainant,
v.
JOHN HOLMAN WEIGEL, Respondent.
¶1 The Oklahoma Bar Association (Bar) filed on August 21, 2012, an amended
formal complaint pursuant to Rule 6.1, Rules Governing Disciplinary Proceedings
(RGDP), 5 O.S. 2011, ch. 1, app. 1-A, against John Holman Weigel (Respondent),
alleging six (6) counts of professional misconduct in violation of the Oklahoma
Rules of Professional Conduct, 5 O.S. 2011, Ch. 1, app. 3-A, (ORPC) and the
RGDP. The parties filed Joint Stipulations, but the Respondent denies the
stipulated conduct violated any rules of professional conduct or disciplinary
procedure and contends professional discipline is not warranted. The allegations
set out below are taken from the stipulated facts.
COUNT I - The Boyd Grievance
¶2 The Bar received a grievance from Peggy Jean Boyd on October 26, 2009,
regarding the Respondent's representation of her son, Roger D. Boyd. The Bar
opened Boyd's grievance for informal investigation and by letter dated November
3, 2009, advised the Respondent of the grievance and requested a response in
writing within two weeks. No response was received and the Bar on November 25,
2009, mailed another letter to the Respondent at his official roster address,
advising him of his failure to respond to the Boyd grievance and requesting that
he do so within five (5) working days from the date of the letter. The
Respondent did not respond. By letter of December 23, 2009, the Bar advised it
was opening Boyd's grievance for formal investigation and informed the
Respondent he was required to respond in writing within twenty (20) days. He
responded by letter dated January 8, 2010, and apologized for the delay in his
initial response. The Bar alleged violation of Rule 8.1(b) of the ORPC and Rules
1.3 and 5.2 of the RGDP for failure to respond to the Boyd grievance.
COUNT II - The Whiteley Grievance
¶3 On July 8, 2009, Cody Alan Whiteley hired the Respondent to represent him
in a paternity action pending in Jackson County, Oklahoma. The contract provided
that Whiteley would pay a "flat fee" of $12, 000.00, with $6,000.00 due
immediately, then payments of $1,000.00 per month until paid in full. The
Respondent did not have a trust account. At Respondent's specific request,
Whiteley's mother wired $6,000.00 to the Respondent's account with the First
State Bank of Altus on July 8, 2009, and then wrote the Respondent a check for
$1,000.00 on August 12, 2009, which was deposited into the same account. After
the $6,000.00 deposit, the Respondent made numerous disbursements of funds from
the general account for personal and business expenses.
¶4 On August 27, 2009, the Respondent met with Cody Whiteley in Texas after
Whiteley's mother threatened to stop making any further payments and sought to
remove herself as Cody's guarantor. The Respondent admits meeting with Whitely
but denies it was under threat. The Whiteleys left numerous telephone messages
and sent repeated emails expressing their concern that no action had been taken.
The Respondent failed to timely respond to their repeated requests about the
status of the case. By certified mail dated November 3, 2009, the Whiteleys
terminated the Respondent and requested a refund and return of Cody's file. The
Respondent did not claim the certified mailing and did not respond to the
Whiteleys' request. The Respondent did not provide the Whiteleys with an
accounting and he denies that a refund was requested. On November 26, 2009, Cody
Whiteley filed a grievance with the Bar alleging neglect of his legal matter and
failure to earn the $7,000.00 paid.
¶5 The Bar alleged violations of Rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16(d) and
3.2 of the ORPC and Rule 1.3 of the RGDP, asserting the Respondent accepted a
flat fee from the client, which he deposited in his operating account, and then
failed to properly communicate with the client or to complete the work necessary
to earn the fee. The Respondent claimed Whiteley was a difficult client who was
hard to communicate with. After the Bar requested him to provide an accounting
of the work performed on Whiteley's behalf and a copy of all work product,
Weigel responded, by letter from his attorney, asserting the contract was for a
flat fee and he earned the entire fee. He admitted he did not have a trust
account, but argued he was not required to maintain one because the fee was
earned when paid.
COUNT III - The DeLeon Grievance
¶6 Tomas DeLeon, III, was convicted on August 19, 2003, in Stephens County
District Court, of five counts of lewd molestation. He was sentenced to serve
sixteen years imprisonment and his conviction was affirmed on state and federal
appeals. DeLeon's mother spoke with the Respondent on January 28, 2010, to see
whether anything further could be done in her son's case. The Respondent assured
her he could help, even if it meant getting a pardon, and the fee would be
$5,000.00. Mrs. DeLeon wired $1,000.00 to Respondent's general account. On
February 17, 2010, DeLeon's parents drove from Texas to meet with the Respondent
in Altus, at which time he stated three options were available: to seek a
pardon, to seek a commutation of the sentence, or to seek a modification of the
sentence. He advised them it would take six or eight weeks for him to seek the
desired result. The Respondent denies he assured them a result.
¶7 The DeLeons would testify they paid the Respondent an additional
$4,000.000 by cashier's check, executed a contract with him and turned over
their son's legal papers to him. The contract provided for a flat fee of
$5,000.00 for the Respondent to represent, appear and act for his client on all
currently available administrative and executive remedies relating to his
conviction in CF-03-149 in Stephens County, Oklahoma. It provided that all fees
were nonrefundable due to time constraints on the attorney and the complexity of
the case, but no further fees would be required under the contract. The
Respondent told the DeLeons he would notify the prison of his representation and
he would call and speak to Tomas. He would either take the necessary documents
to the prison or mail them for Tomas to execute. From February 17, 2010, until
May 12, 2010, the Respondent did not communicate with Tomas or with the DeLeons.
On May 12, 2012, the Respondent answered the phone and told Mrs. DeLeon he would
call her the next day at 5:00 p.m. He did not call and Mrs. DeLeon repeatedly
left messages requesting that he contact her.
¶8 On May 26, 2010, Mrs. DeLeon called from a different phone number and the
Respondent answered, but told her to call the next day to make an appointment.
The next day, Mrs. DeLeon telephoned the Respondent approximately nine times
without getting an answer. On June 9 the DeLeons drove to Respondent's
home/office in Altus and repeatedly rang the doorbell, but the Respondent did
not answer. They called from a nearby payphone and when the Respondent answered
he said he had just come home. When she said his car was parked in the driveway
when they came by, he said he had been asleep. They drove back to his home and
talked to him outside, asking to see the work he had done. The Respondent told
them he would have everything done by June 12, 2010, and arranged to meet with
them at 10:00 a.m. that day at his home to show them the paperwork.
¶9 On June 12, he gave the DeLeons a one and one-half page letter addressed
to "Dear ______," with no name or address listed. This was purportedly an
"Application for Commutation/Parole Consideration of Tomas DeLeon, III." He told
them that he had done all he could for their son and demanded they sign a paper
releasing him from all obligations. They refused and asked for a copy of the
release, but the Respondent refused to give them a copy if they weren't going to
sign it. He told them he would have their son's paperwork completed by June 14,
2010, and would mail it to them. Mrs. DeLeon did not receive any paperwork and
when she contacted the Respondent he said he had mailed it. He said he would put
another copy in the mail and he then hung up on her. Mrs. DeLeon immediately
called back and advised the Respondent they no longer wanted his services. She
requested return of her son's legal documents and a refund of their money. The
Respondent again hung up on her.
¶10 On June 22, 2010, the Respondent gave them the same letter, with a few
extra lines added. He did not return the files or make any refund. On July 6,
2010, the DeLeons filed a grievance and the Bar advised the Respondent of the
investigation. On August 2, 2010, the DeLeons went to the Respondent's home to
pick up their sons's legal documents. He refused to give them the files unless
they signed a "Receipt and Acknowledgment." They refused to sign and the
Respondent then presented them with a "Statement of Services Rendered" which
reflected they owed him an additional $812.50, although he said he was not going
to ask them to pay it. The DeLeons would testify the Respondent gave them a
large box containing their son's records which appeared to have cat feces and
urine on them.
¶11 In his response to the Bar dated August 9, 2010, the Respondent stated he
had explained to the DeLeons at the outset that the chances for relief were
remote because the case had been through state and federal appeals for nearly
seven years and the file was voluminous. He states the DeLeons decided to hire
him on February 17, 2010, with the specific provision that all fees would be on
a flat flee basis and were nonrefundable. The response enclosed a "Statement of
Services Rendered" which stated that he spent 25.25 hours on the case at a rate
of $250.00 per hour.
¶12 The DeLeons sued the Respondent in Jackson County District Court, and on
August 25, 2010, the court ordered the Respondent to pay them $2,301.75 in
restitution and court costs. Respondent gave them a cashier's check for that
amount as a settlement of the matter. The Bar alleged violations of Rules 1.1,
1.3, 1.4, 1.5, 1.15, 1.16(d) and 3.2 of the ORPC and Rule 1.3 of the RGDP,
asserting the Respondent accepted a flat fee from the client and deposited the
fee in his operating account, failed to properly communicate with the client and
failed to competently complete the work necessary to earn the fee. The
Respondent admitted he accepted a flat fee but he claimed the fee was earned at
the time of payment.
COUNT IV - The Owens Grievance
¶13 In Count IV, the Bar alleged the Respondent violated Rules 1.1, 1.3, 1.4,
3.2, 8.4(d) of the ORPC and Rule 1.13 of the RGDP, by accepting a flat fee from
the client, then failing to properly communicate with the client or to
diligently and properly complete the work for which he had been paid. On April
13, 2010, Michael Owens hired the Respondent to represent him in Case No.
FD-2001-32, a custody and child support modification matter in the District
Court of Jackson County. Owens paid the Respondent $1,900.00 between April 13
and June 15, 2010. The Respondent filed a motion to modify the decree of divorce
and an application for an emergency ex parte custody order. A temporary
order granted custody to Owens and set the matter for hearing on August 24,
2010. On September, 13, 2010, the court ordered child support in Owens' favor
and directed opposing counsel, Talley, to prepare the order. Talley requested
necessary information concerning Owens' income, but the Respondent never
provided the documents. As a result, Owens was required to continue to pay child
support under the former court order. Owens stated the Respondent advised him to
stop paying child support since the child was living with him and stated he
would contact the Texas Department of Human Services to let them know that a new
order was being prepared. Owens stopped paying and the State of Texas began to
garnish his wages in the amount of the original child support, plus an
additional $50.00 per month because of an arrearage of $750.00 When contacted,
the Respondent made excuses and blamed opposing counsel for causing the delay in
filing the order.
¶14 Owens filed a grievance against the Respondent on January 24, 2011,
alleging neglect and lack of diligence getting the order filed. The Respondent
blamed Owens and Talley for the delay. He stated he had sent the information to
Talley but it was not received, so he was required to obtain updated information
from Owens. Wilma Owens responded she had promptly faxed the financial
documentation to the Respondent on at least three (3) occasions. She contacted
the State of Texas and was advised there was no documentation that the
Respondent had ever notified them of the temporary order. The Respondent advised
he would file a Motion to Settle Journal Entry and forward a copy to the Bar. He
did not do so and continued to blame Talley. He advised the Bar that he had
contacted the Texas child support authorities on several occasions on Owens'
behalf.
COUNT V - The Lara Grievance
¶15 In Count V, the Bar alleged Respondent's conduct violated Rules 1.1, 1.3,
1.4, 1.5, 1.15, 1.16(d), 3.2 and 8.4(d) of the ORPC and Rule 1.3 of the RGDP by
accepting a flat fee from the client, depositing the fee into his operating
account and then failing to properly communicate with the client or to
competently complete the work necessary to earn the fee. Jose Lara hired the
Respondent in May of 2011 to represent him in a custody and child support
modification in Harmon County, Oklahoma. He paid the Respondent a total of
$2,300.00, which the Respondent deposited into his general account. The
Respondent attended an initial child support hearing on November 14, 2011, but
never filed any pleadings in either matter and failed to communicate with Lara
as to the status of his legal matters. Lara was the Respondent's neighbor and
made several attempts by telephone and visiting Respondent's home unannounced in
an effort to discover the status of his case.
¶16 In early 2012, the Respondent moved to Texas and ceased communications
with Lara. On May 16, 2012, Lara filed a grievance against the Respondent,
alleging neglect of his legal matters, failure to return his file and failure to
return his fee so that he could hire another attorney. In his response to the
Bar, the Respondent advised he had the custody matter prepared and ready to file
and that he scheduled a meeting with Lara for June 11, 2012. At that meeting,
Lara terminated representation by the Respondent and requested a return of his
file and unearned fees. The Respondent provided Lara with a check for $1,300.00.
The Respondent filed a response with the Bar on June 28, 2012, in which he
enclosed a copy of part of Lara's file and an accounting in which he estimated
he had performed $3,260.00 in legal services for Lara. He included a photocopy
of the refund to Lara, and stated he would regard the $2,260.00 balance due as
waived for client goodwill.
COUNT VI - the Williams Grievance
¶17 In Count VI, the Bar alleged conduct in violation of Rules 1.1, 1.3, 1.4,
1.5, 1.15, 1.16(d), 3.2 and 8.4(d) of the ORPC and Rule 1.3 of the RGDP by
accepting a flat fee from the client, depositing the fee into his operating
account and then failing to properly communicate with the client or to
competently complete the work necessary to earn the fee. Priscilla Williams was
incarcerated when her husband filed for divorce and custody of their minor
child. A decree of dissolution of marriage was filed in Harmon County District
Court Case No. FD-2010-11. In November 2010, she hired the Respondent for a flat
fee of $2,500.00, which was paid by her mother. The parties reconciled shortly
thereafter and Williams attempted to contact the Respondent on numerous
occasions to tell him his services were no longer needed. Finally, Williams left
a message terminating his services and requesting a refund. The Respondent did
not communicate with her and he did not refund the fee. The parties had their
divorce decree vacated on January 5, 2011, and Williams continued to leave
messages with the Respondent to contact her and refund her fee. In late 2011,
Williams left a message telling the Respondent she was going to file a grievance
with the OBA. The Respondent returned her call and asked to meet to discuss the
matter. At the meeting, the Respondent asked Williams to sign a document waiving
any legal claim against him and agreeing not to contact the OBA. Williams
refused to sign the paper and the Respondent told her he would keep her money in
the event she needed legal services in the future.
¶18 Williams was again incarcerated in February 2012 and her husband sued her
for divorce on April 19, 2012. She contacted the Respondent to represent her. He
said he would and asked her to e-mail details of the issues presented. Williams
e-mailed the requested information and then again responded to five more
questions asked by the Respondent. He stopped communicating with her and on May
28, 2012, Williams blocked her telephone number and phoned the Respondent. The
Respondent answered and advised that he would represent her only if she agreed
to an uncontested divorce on the terms offered by the husband's attorney. She
refused and demanded a refund. He said he would give only a partial refund, if
any. Williams appeared pro se at trial in her divorce on July 31, 2012, at which
time she lost custody of her child. Opposing counsel advised the Bar the
Respondent never contacted him on behalf of Mrs. Williams. The Respondent did
not provide an accounting or a refund of the $2,500.00 to Williams or her
mother.
¶19 These matters were presented to the Professional Responsibility Tribunal
(PRT) on November 2, 2012, November 20, 2012, and February 28, 2013, the
Respondent appearing in person and by his attorney of record. Ultimately, the
PRT found the Bar established by clear and convincing evidence the Respondent
committed specific acts constituting professional misconduct in violation of
Rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16(d), 3.2, 8.1 and 8.4(d) of the ORPC,1 and Rules 1.3
and 5.2 of the RGDP.2 It now recommends the Respondent be suspended from
the practice of law for six months. The Bar argues the appropriate discipline is
suspension for two years and one day, which would be tantamount to disbarment
and would require the Respondent to apply for reinstatement of his license to
practice law. The Respondent says his conduct warrants nothing more severe than
a reprimand.
STANDARD OF REVIEW
¶20 In bar disciplinary proceedings, this Court exercises exclusive original
jurisdiction as a licensing court, not as a reviewing tribunal. State ex rel.
Oklahoma Bar Ass'n v. Berger,2008 OK 91 ¶12, 202 P.3d 822. It is our
responsibility to examine the record and assess the credibility and weight of
the evidence in order to determine whether it clearly and convincingly
establishes professional misconduct by the attorney and, if so, what the
appropriate discipline, if any, should be. State ex rel. Oklahoma Bar Ass'n
v. Stutsman, 1999 OK 62,
990 P.2d 854, 858. Our
review is de novo and we are not bound by the recommendations of the PRT.
State ex rel. Oklahoma Bar Ass'n v. Todd, 1992 OK 81, 833 P.2d 260, 261.
¶21 As for failure to respond to the Bar's requests for information, the
Respondent argues the rules do not require a response to an informal complaint
from the Bar within two weeks. We have held that a lawyer's obligation to
respond to an OBA grievance is mandatory and failure to respond is a violation
of the RGDP which forms a basis for discipline. State ex rel. Okla. Bar Ass'n
v. Stow, 1998 OK 105, ¶12,
975 P.2d 869; State ex
rel. Okla. Bar Ass'n v. Spadafora, 1998 OK 28, ¶ 32, 957 P.2d 114, 119. The Bar
established by clear and convincing evidence that the Respondent failed to
respond to the grievance filed in the Boyd matter until a formal proceeding was
instigated.
¶22 The Respondent maintains his fees were earned in each instance. He says
he spent many hours meeting with clients and reviewing their files and that he
also traveled to meet with certain clients. He says he expended time on each
client's legal matter and his fees were reasonable. He argues that he was not
required to maintain a trust account because the fixed fees he charged were
earned upon receipt and thus could not be deposited in a trust account. He
relies upon OBA Ethics Opinion No. 317, adopted December 13, 2002, for support.
That opinion addressed availability fees, fixed fees and hourly fees designated
as a nonrefundable retainer. The use of the term "nonrefundable retainer" to
represent an advance payment of fees for hours of legal services that the
attorney will perform in the future is impermissible. Such fees may be
designated as fixed fees, but cannot impair a client's rights under Rule
1.16(d). The fees are not "nonrefundable" because if the attorney withdraws or
is terminated before completing the work, the attorney must refund the unearned
portion of the advance.3
¶23 In McQueen, Rains & Tresch, LLP v. CITGO Pet. Corp., 2008 OK 66, 195 P.3d 35, we discussed
nonrefundable retainer fees and related provisions in attorney/client contracts
that have been upheld in other jurisdictions. The common factors were: the fees
set out were reasonable; the contract was negotiated with a sophisticated client
and the retainer agreement contained an agreement by the client to compensate
the lawyer if the client terminates the relationship; the contract is in writing
with a clear statement of the consequences of the provisions; where the
attorney, in entering the contract, has changed positions or incurred expenses
to meet the needs of the client or where the client's desire to have a
particular attorney as a representative necessitates an immediate commitment at
the risk to the attorney of forgoing or losing other potential business. Id.
Contracts between attorneys and their clients regarding compensation stand
on the same footing as any other contract and are upheld unless contrary to law,
oppressive, fraudulent or the fee is obviously disproportionate to the services
rendered. Rule 1.5 prohibits an attorney from making an agreement for an
unreasonable fee. Comment 4 to Rule 1.5 states that a demand for advance payment
may be made by the lawyer, but that any unearned portion of the collected fee
must be returned.
¶24 The Respondent had fee contracts in the Whiteley and DeLeon matters The
Whiteley contract provided that the Respondent would be paid $12,000.00 as a
retainer, with payments of $1,000.00 per month to be paid after an initial
payment of $6000.000. The Whiteleys paid the Respondent $7,000.00. The contract
did not provide for a nonrefundable fee nor did it state that the fees were
deemed earned upon receipt. The Respondent did not file any pleadings or other
paperwork with regard to the case, not even an entry of appearance. His
testimony was that "it was in the planning stages." The Respondent did not keep
contemporaneous records, nor did he make written notes of contact with his
client. There is no documentary evidence to support the Respondent's testimony
that he was waiting on the client for further instruction, or that the client
had agreed all pleadings would be filed simultaneously. The testimony reflects
otherwise. The Respondent did not provide an accounting and he did not refund
any of the $7,000.00 paid him. When the Bar requested an accounting, the
Respondent produced, after several months, one he had created from memory.
¶25 The DeLeon contract provided for a nonrefundable flat fee. The Respondent
believes he earned his $5,000.00 fee although he admits only one hour of the
23.25 hours billed was spent drafting a cover letter to the Oklahoma Pardon
Board (sic) members. From February 17 to May 12, there were no communications
with the clients. Twelve of the 23.25 hours were spent reviewing the extensive
file and creating a compilation of it. The DeLeons obtained a small claims
judgment against him in the amount of $2,301.75, which he agreed to pay in
settlement.
¶26 The Bar proved by clear and convincing evidence the Respondent took fees
from clients and did not complete the work for which he was hired. A violation
of Rule 1.15(a) is established by the Respondent's failure to hold his clients'
property separate from his own property. An advance fee retainer requires that
the property of the client must be segregated until it is earned. State ex
rel. Okla. Bar Ass'n v. Sheridan, 2003 OK 80, 84 P.3d 710, 717. The
Respondent deposited client funds in his operating account, in violation of Rule
1.15. The Respondent's bank records reflect that after he deposited the client
funds, cash withdrawals were made and checks were drawn on the account almost
immediately for personal items. The Respondent failed to account for or return
fees upon demand by clients. He failed to provide adequate representation and to
act with reasonable diligence in representing his clients. He failed to keep the
clients reasonably informed and he failed to promptly comply with reasonable
requests for information from them. The Respondent's conduct violates Rules 1.1,
1.3, 1.4, 1.5, 1.15, 1.16(d), 3.2, 8.1 and 8.4(d), ORPC and Rules 1.3 and 5.2
RGDP.
¶27 Violation of the Oklahoma Rules of Professional Conduct and Rules
Governing Disciplinary Procedure warrants the imposition of professional
discipline. It is the duty of this Court to determine the appropriate level of
discipline to be imposed, based on the facts and circumstances of the case. In
determining the appropriate discipline, we look to the level of discipline
imposed in other cases. The amount of discipline imposed has depended upon the
unique factors in each case. Misuse of trust funds has resulted in the most
severe discipline of disbarment.4
¶28 In State ex rel. Okla. Bar Ass'n v. Perkins, 1988 OK 65, 765 P.2d 825,
failure to promptly repay client funds upon request, coupled with other misuses
of client fund, mitigating circumstances absent, resulted in disbarment.
A failure to account for or deliver money to the client upon demand may
constitute a conversion. Funds belonging partly to a client and in part to the
lawyer must be deposited in the lawyer's trust account. The portion belonging to
the lawyer may be withdrawn when due unless the right of the lawyer to receive
it is disputed by the client, in which event the disputed portion shall not be
withdrawn until the dispute is finally resolved. Id. Mr. Weigel, in the
present matter, did not maintain a trust account until the Bar advised him that
he was required to have one. Client funds were deposited in his general account
because he believed those fees to be earned when paid.
¶29 In State ex rel. Okla. Bar Assn's v. Schraeder, 2002 OK 51, 51 P.3d 570, a thirty-day
suspension was deemed appropriate for the attorney's failure to promptly respond
to the Bar's investigative inquiries, lack of concern for clients' economic
interests as evidenced by refusing to promptly account for and restore unearned
portions of fees for almost three years and disregard of his client's right to
know status of case. Schraeder insisted that he filed no briefs or
pleadings because he was waiting to receive pertinent information from the
client's family in order to proceed with his criminal appeal. He did not respond
to a letter requesting a detailed accounting and a refund of the unearned
portion of the $2,800.00 fee because he believed that he had earned the fee by
researching the various issues in the appeal, speaking to members of the
client's family on several occasions and traveling twice to visit his client at
the Adult Detention Center in Tulsa. Schraeder admitted that his conduct
violated Rules 1.4, 1.5, 1.15(b), 1.16(b)(2) and (d), Rule 8.4(a) ORPC
and Rule 1.3 RGDP. Schraeder offered in mitigation that he had not been
previously disciplined and that he suffered from "burnout syndrome." We noted
that his actions caused no grave economic harm. Schraeder acknowledged and
accepted responsibility for his professional derelictions and, although his
responses were dilatory during the initial investigative stages, they were
characterized by candor and cooperation during the latter stages and in the PRT
proceedings. We took the mitigating factors into account in fashioning the
appropriate measure of discipline at suspension for thirty (30) days.
¶30 In State ex rel. Okla. Bar Ass'n v. Sheridan, 2003 OK 80, 84 P.3d 710, the attorney
was suspended for six months for violations similar to those alleged against the
Respondent. Sheridan deposited the client's money in his operating account. Rule
1.16 and 1.15(b) require a lawyer not only to refund advance fees not earned but
to do so in a timely manner. Many of the allegations against Sheridan came as a
result of his failure to supervise an employee. Sheridan's primary faults were
deemed to be neglect of clients, not following through with his responsibilities
to his clients, mishandling his clients' money, not refunding unearned fees and
not communicating with the Bar.
¶31 A three-year suspension was deemed appropriate in State ex rel. Okla.
Bar Ass'n v. Stow, 1998 OK
105, 975 P.2d 869,
for conversion of client funds where the attorney used a client's funds for
his own use and refused to account for or deliver funds of a client upon demand.
Additionally, he did not respond to several requests for accounting made by the
Bar; when he did respond, the accounts were unsatisfactory. In State ex rel.
Okla. Bar Ass'n v. Reynolds, 2012 OK 95, 289 P.3d 1283, the attorney was
suspended for two years and one day on five counts of neglect of cases, failing
to keep clients informed of the status of their cases, collecting and retaining
fees for which little or no services were provided and failure to respond to the
grievances. At the time, Reynolds stood suspended for failure to complete the
MCLE requirements. Reynolds admitted that she basically abandoned all of her
pending cases in October 2010. She testified that she had problems with
depression, but the trial panel found there were no mitigating factors
presented.
¶32 In the present matter, the Respondent was admitted to the practice of law
in Oklahoma on April 21, 2000, and has not been previously disciplined. At the
hearing before the PRT, the Respondent for the first time offered in mitigation
that he has suffered from bipolar disorder since 2002. He was treated through
counseling and with medication from 2008 to 2009. The Respondent testified that
the disorder did not render him incapable of practicing law, but only created
difficulties in his law practice. The Respondent's counsel advised the trial
panel that "Rule 10 is not an issue here whatsoever." Tr. 2-28-13 p. 492.5 A disability
does not immunize one from disciplinary measures and there must be shown a
causal relationship between the condition and the professional misconduct.
State ex rel. Okla. Bar Ass'n v. McCoy, 2010 OK 67, ¶25, 240 P.3d 675. The Respondent
did not raise Rule 10 as a defense and we have not considered factors involved
in a Rule 10 proceeding. State ex rel Okla. Bar Ass'n v. Young, 2007 OK 92, ¶39, 175 P.3d 371.
¶33 The Respondent does not express remorse for the difficulties he caused to
his clients, nor does he admit he did anything wrong. He admitted he could have
"handled things better," but he does not believe his conduct forms a basis for
discipline. He denies any wrongdoing and denies he violated any of the rules of
professional conduct or disciplinary proceedings. Even after being ordered by a
court to refund $2,301.75 to the DeLeons, the Respondent still believes the
entire fee was earned. We find the circumstances warrant the Respondent's
suspension from the practice of law in Oklahoma for a period of two years. The
Respondent actively avoided answering or establishing contact with his clients
and he engaged in a pattern of behavior that was detrimental to them.
¶34 The Bar has filed an application to assess costs against the Respondent
in the amount of $4,892.00, which includes $85.70 for lunch provided to the PRT.
This Court does not find it appropriate to assess as costs the amount the
members of the PRT spent on lunch during the three days of the hearing. State
ex rel. Okla. Bar Ass'n v. Wilcox, 2014 OK 1, ¶ 57, ___ P.3d ___.
The amount of $85.70 is deleted and the Respondent is ordered to pay costs
of the proceeding in the amount of $4,806.30 within ninety (90) days of the date
the opinion becomes final.
¶35 COLBERT, C.J., REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON,
GURICH,
JJ. - Concur
¶36 WATT, TAYLOR and COMBS, JJ., - Dissent
TAYLOR, J., with whom WATT and COMBS, JJ., join, dissenting.
" I would impose suspension for two years and one
day."
