Yes And No

The Oklahoma Supreme Court imposed a 90-day suspension of an attorney

This disciplinary proceeding against a lawyer poses two questions: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and its disposition? and (2) Is suspension for two years plus one day together with payment of costs an appropriate disciplinary sanction for Respondent’s breach of acceptable professional behavior? We answer question one in the affirmative and question two in the negative.

The Professional Responsibility Panel (“PRT”) proposed a two year and a day suspension; the Complainant (Disciplinary Counsel) sought disbarment. 

The complaint history

The PRT Report provides an extensive summary of the historic facts in this case gleaned from Respondent’s Deposition on December 20, 2018. PRT Report at 2-5. The more salient facts are repeated here as is necessary for this discussion. The PRT Report is replete with Respondent’s many failures to respond to requests for information and his lack of cooperation with Complainant’s investigator, along with Respondent’s failed promises to do better in the future. However, the record shows that these promises to improve and cooperate never materialized.

The Client relationship began in January of 2018, when Respondent was retained by Client at a gas station in Ponca City, Oklahoma, to provide legal services relating to a post-divorce custody matter pending in Creek County, Oklahoma. Client paid Respondent $150.00 on the spot and eventually paid Respondent a total of $1,140.00, although a fee agreement was never executed or produced. Client faced an upcoming hearing pending in his case on February 6, 2018, before Judge Mark A. Ihrig. The judge had ordered mediation to occur at Client’s last court hearing. The mediation was to take place prior to his February 6, 2018, hearing.

Prior to the mediation hearing, Client notified Respondent that he was unable to complete mediation by this deadline for financial reasons. On the morning of February 6, 2018, Respondent contacted the trial judge’s office, speaking with the bailiff, to let the judge know that mediation had not yet occurred and to attempt to seek a continuance. Respondent then incorrectly assumed that a continuance had been granted. Complainant’s investigator, Mr. Thames, testified in the trial panel hearing that according a conversation he had with Ms. Eastman, Respondent’s opposing attorney in the case, Respondent contacted her regarding a continuance and she was not adverse to a continuance. However, she told Respondent that in that district and with that judge, he does not allow agreed continuances. Ms. Eastman told Respondent that it would have to be approved by the judge in advance and in writing. Mr. Thames also testified that he spoke with the judge’s bailiff who had taken a call from Respondent. The bailiff said he told Respondent that they could not just grant it because it would have to be run by the judge. In addition the trial judge indicated a continuance could not be granted because Respondent had never filed an entry of appearance with the court for Client’s case. (Deposition of Respondent at 40, December 20, 2018).

As a result of these exchanges, Respondent assumed he did not need to go to court for the hearing and told his client that he need not be present either. In any case, the court hearing was held as scheduled, on the afternoon of February 6, 2018, with neither Respondent not his client present. With no representation in court on Client’s behalf, the judge granted a default judgment against the Client’s interest. Respondent claimed that he later learned that the judge did not allow continuances without express permission.

Upon learning of the default judgment against himself, Client terminated Respondent as his attorney and requested a refund of the fees paid. In total, Client had paid Respondent $1,140.00. Client then hired a new attorney on March 5, 2019, to whom he paid $1,100.00, and who eventually attained a vacation of the default judgment against Client.

The client then filed a complaint.

The attorney failed to respond to adequately respond

After a thorough review of the record, the Court concludes that clear and convincing evidence shows that Respondent violated ORPC Rules 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication) and 8.4(a) (Misconduct) by his violation of RGDP Rule 1.3 (disciplinary proceedings). We also note that Respondent’s failures to respond to lawful requests of information from Complainant’s investigator supports the finding of a clear and convincing violation of ORPC Rule 8.1(B) (disciplinary proceedings). These serious violations of the rules of professional conduct require imposition of serious disciplinary action. Upon consideration of these violations, and giving due consideration to the mitigating factors tendered, the severe actions recommended by Complainant and the Trial Panel are not warranted. Therefore, we conclude that Respondent must be disciplined by a suspension of his license for ninety days and be assessed costs incurred in this proceeding.

All justices concurred in the opinion. (Mike Frisch)