Hold The Phone (Call)

The Oklahoma Supreme Court has reprimanded an attorney for two voicemail messages to a soon-to-be former client

Nichalas Frank hired the respondent in November of 2015 to represent him in three (3) criminal cases pending in Oklahoma County District Court. Mr. Frank’s grandfather paid the respondent the five-hundred dollar ($500) retainer fee required to obtain his services, and Mr. Frank was to pay an additional total of $4,000.00 to the respondent in six monthly payments.  Frank, however, failed to make any further payments.

On March 15, 2016, the respondent learned during a staff meeting that Mr. Frank had not made any additional payments for attorney fees. The respondent reacted to this by telephoning Frank and, in front of his staff, leaving two messages containing expletives and threats. We will address the content of the messages later in this opinion.

After receiving the respondent’s voicemail messages, Frank contacted a local Oklahoma City TV news station. In an interview with the station he stated he feared for his life because the respondent was pretty powerful, and “I’m pretty sure he can do what he wants to do at any moment.” The TV station aired the news story on March 16, 2016, and played bleep-censored audio of both voicemail messages left by the respondent. He refused to be interviewed and did not comment on the allegations.

On March 17, 2016, Mr. Frank filed a grievance with the Oklahoma Bar Association regarding the respondent’s conduct. That same day the respondent filed motions to withdraw from Frank’s cases and was authorized to do so by the District Court on March 21, 2016.

In his written response to Frank’s grievance, the respondent advised he had appeared in court on Frank’s behalf and continued the cases because he was not getting paid, and he was trying to consolidate them before the same judge. The respondent went on to state that when he learned Frank had not paid the fee promised, he left the two voicemails, “in an attempt to get Frank to pay him so that he would not have to withdraw.” In his written response, the respondent also stated that Frank

“. . . needed me to get his attention and I did. . . . I simply spoke to him in words he understood. My communication was directed to him personally, and was intended to be private in nature. Sometimes communications with difficult drug addicted clients has [sic] to be blunt and straight forward to impress upon them the reality of their situation.”

The expurgated version

The respondent objects to the Trial Panel’s characterization of his conduct as “morally reprehensible.” He believes the conduct involved merely offensive behavior and insults. He argues that the Trial Panel has expanded “morally reprehensible” beyond deceit, dishonesty, misrepresentation, criminality, and sexual misbehavior. While he appears to be focused on his choice of expletives, we are focused on the subject matter of the two recorded messages.

The respondent writes that “Swear words are the exclamation marks of spoken language.” Modern dictionaries describe the words used by the respondent as offensive and vulgar. Because words in dictionaries are the result of substantial research, we accept that they accurately reflect the current public opinion of the words the respondent chose to use. We delete these expletives in quoting his messages.

The respondent left this message at 10:31 AM:

“Mr. Frank, this is Chad Moody. It’s not your [deleted]. It’s not your piece of [deleted] that you step on. It’s not your slave. It’s not your [deleted]. It’s Chad Moody who works for you, but you won’t [deleted] pay me! So why don’t you come to my office, because I’m having a frustrating day, and I would like to really beat the [deleted] out of somebody and that way, you can at least make yourself somewhat useful to the human race. [Deleted] pay me [deleted]!”

Again, at 10:33 AM, the respondent telephoned Frank, and in front of his staff, left this message:

“Mr. Frank, by the way, Chad Moody, calling you back, and at this point, I really do think you should probably find other counsel because I’m to the point of wanting to see you go to prison and that’s not a good equation. It gives me a horrible conflict of interest. So I’m letting you know I’ve got this conflict of interest because I would love to see your sorry [deleted] in prison because you’re using me like your [deleted].”

The facts show that the phone calls immediately followed information from the respondent’s staff informing him that Mr. Frank had not paid the attorney fees he had promised to pay. The respondent’s subsequent verbal abuse and threats were a coercive attempt to intimidate Mr. Frank into paying. The substance of the messages does not support the respondent’s explanations that he was trying to shock Mr. Frank into following the respondent’s recommendations to him so he would receive a lighter sentence. The respondent’s assertion that his choice of language was in his client’s best interest and the language is protected by the First Amendment’s Freedom of Speech Clause, found in the Constitution of the United States, is merely unpersuasive rationalization for rash acts.

The recorded tirade reveals that the respondent no longer intended to represent his client, he only wanted his fees to be paid. He is entitled to his fees, and as an attorney, he should know bullying and threats are not acceptable behavior for a professional who has sworn to uphold the rule of law. The courts are open to protect breaches of contract. Of all people, a lawyer should know that.

The conduct violated Rule 8.4(d)

We are concerned that the respondent does not appear to realize that his use of intimidation and threats to collect a debt due him is unacceptable behavior for an attorney. He shows no remorse, no embarrassment for his actions. He even defends the actions as protected speech. He testifies that his client deserved it for lying to him about paying the attorney fees. From his own testimony, he has asserted that such behavior is not his ordinary course of dealing with the clientele he has chosen to represent, that is, those who are accused of violating drug laws. Neither his two attorney witnesses, nor a member of his staff, who also testified at his hearing, were willing to testify that such invective should be considered acceptable behavior for an attorney. His actions violate ORPC 8.4(d), and RGDP 1.3. Justice cannot be administered by taking the position of a foe, by belittling one’s own client, nor by informing the client that his lawyer wants to physically beat him and then see him go to prison. In other words, the respondent’s conduct is prejudicial to the administration of justice. Such action also brings discredit upon the legal profession.

 In mitigation, the facts support this is not the respondent’s typical method of handling his clients. He has not been disciplined by this Court before. We expect that the respondent will not repeat his behavior. There is no evidence before this Court that Mr. Frank suffered any legal harm regarding his criminal cases as the result of the respondent’s withdrawal as Mr. Frank’s attorney.

NewsOK reported on the sanction. (Mike Frisch)