Bar Proposes Censure; Court Imposes Disbarment

The Oklahoma Supreme Court rejected both a proposed censure (from the Bar) and a one-year suspension (from the Trial Panel) and disbarred an attorney for his handling of a wrongful death settlement

Rule 1.15 ORPC also requires a lawyer to promptly deliver to the client any funds the client is entitled, promptly render a full accounting upon request and to hold separately any funds that are in dispute. Friesen’s response brief alleges he only became aware the Nevarezes were challenging his legal fee when they filed their lawsuit to recover the missing settlement proceeds on February 12, 2014. We find this incredulous. We agree with the OBA’s assertion that it should have been clear to Friesen from Alma’s multiple inquiries that there was a dispute concerning their respective interests in the $97,438.00 long before the lawsuit was filed. Alma made multiple inquiries requesting information about her children’s accounts. At the very least Friesen should have known the $97,438.00 was in dispute on July 9, 2013. His time records for that day state, “[p]hone call from Ms. Nevarez; her husband is very upset; it has been four years and they still do not know where the money is and it is gathering interest.” The evidence clearly shows the Nevarezes were not concerned about the $350,000.00. They knew where that money was held because they opened the accounts with Friesen. In addition, there should have been no doubt what amount was in dispute when Dowell sent Friesen a facsimile/letter on January 31, 2014. It provided, “you were to disburse $462,438.00 to Mr. and Mrs. Nevarez. According to Ms. Nevarez, you distributed only approximately $360,000 of the required $462,438.00 to them.” This letter effectively terminated Friesen’s representation of the Nevarezes, requested a full accounting of the settlement proceeds and requested a return of funds to which he was not entitled. Friesen’s response to this letter never mentioned the $97,438.00 was a flat attorney fee nor did he offer to provide an accounting or return any unearned fees; he merely stated there are no missing funds. It was not until June 2014, almost four months after the initial demand letter, that Friesen settled the lawsuit and returned the $97,438.00. We find the OBA has proven by clear and convincing evidence that Friesen violated Rule 1.15 ORPC.

The were issues of incompetence and excessive fees

 Friesen accepted a non-refundable flat fee of $97,438.00 to draft five wills, four trusts, three annuities and to protect the Nevarezes’ $350,000.00 if the need should arise. He testified he normally charges as much as $15,000.00 per will and trust but he had not itemized all the services for the Nevarezes. Some of the services for the children would not be performed for as many as fifteen years in the future. However, there was to be no delay in performing some of the other work including the college accounts. The record reflects the work Friesen performed over the three and one-half year representation consisted of spending approximately one hour a month reviewing and mailing the Nevarezes’ three bank statements…

Here, the Nevarezes paid to have, among other things, three college accounts created for their children. It was important to the Nevarezes to have those established as quickly as possible so they could start earning interest. The record reflects through Friesen’s lack of diligence and meaningful communications these accounts were never created. Based on the evidence presented and our holding in Wright, we find the OBA has proven by clear and convincing evidence Friesen violated Rule 1.5 ORPC.

Notably as to sanction

The OBA recommends this Court follow the discipline in Whitely and publicly censure Friesen. The Trial Panel recommends Friesen be suspended from the practice of law for one year. The second attorney-client agreement was especially disturbing to the Trial Panel. It found that at the time this agreement was executed Friesen was in severe economic distress. He owed back taxes for many years prior to the agreement which culminated into a federal conviction in 2014. State ex rel. Okla. Bar Ass’n v. Friesen, 2015 OK 34, 350 P.3d 1269. Friesen testified he initially had the wrongful death settlement proceeds placed in Lana Cohlmia’s trust account because he was worried the Oklahoma Tax Commission might garnish his trust account. The Trial Panel was also astounded that Friesen would fashion an agreement that included provisions for the Nevarezes to pay up-front for services that would only be performed some fifteen years in the future. Their conclusion was the agreement was motivated by Friesen’s own interests rather than the best interests of the Nevarezes.

The record reflects the second attorney-client agreement was not understood; a fact that should have been clear to Friesen during the two and one-half years Alma Nevarez attempted to find out what happened to the $97,438.00. The Nevarezes never received what they bargained for, diligent representation to establish the college accounts. They not only lost years of earnings on these college accounts but also suffered emotional stress and damage to their relationship. These issues were not hidden from Friesen. Instead of taking the initiative to inform the Nevarezes that they were mistaken about the $97,438.00 and risk having to return any unearned fees, he kept towing them along indefinitely. When Dowell requested Friesen to return any unearned fees Friesen testified he refused because he did not like the insinuation he stole from his clients. Friesen’s response did not explain the fee arrangement in the second attorney client agreement. Alma testified she never received a copy of the agreement; therefore she was unable to give Dowell a copy. It was not until Friesen was sued that he returned the $97,438.00 some four months later. Friesen claims in his brief that there was too little time to return the fees prior to the lawsuit being filed, which occurred approximately one week after Friesen responded to Dowell. However, if Friesen had responded appropriately to Dowell’s letter and explained the fee agreement and offered to return any unearned fees the lawsuit would most likely not have been filed. Again, it is another example of Friesen blaming someone else for circumstances that were well within his control to prevent. We are also disturbed by the second attorney-client agreement as well as the suspicious nature of Exhibits B and C and the excuses supporting their sudden appearance. Based upon these concerns, the many rule violations and past discipline we cannot agree with the OBA that a public censure would provide sufficient discipline necessary to deter such behavior in the future.

(Mike Frisch)