State Ex Rel. Oklahoma Bar Ass'n v. Zimmerman, 2012 OK 35

Background

BarAssociation filed a three-count complaint against Zimmerman alleging violations of ORPC Rules 1.1, 1.4, 1.15 and RGDP Rule 1.3.
Count I: Brenda Evans-Crownover’s family hired Zimmerman for post-conviction/appellate relief; he did not represent her at trial and did not obtain a transcript or file a timely appeal.
Zimmerman pursued some post-trial action but ultimately declined to pursue an appeal on ineffective assistance or excessive sentence grounds after learning conflicting information from a confidential informant.
Count II: Zimmerman promised to provide Brenda’s transcript but never ordered or delivered it, leaving funds in his possession for years; grievance filed after six years.
Count III: evidence showed the $1,650 transcript fee was not kept in trust nor properly accounted for, with the trust account repeatedly underfunded and mismanaged.
Respondent conceded improper supervision of the trust account and later claimed he personally assumed responsibility; mitigating health issues were noted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Zimmerman violate trust-fund rules and pursue ineffective post-conviction relief?	Bar contends mismanagement and failure to pursue post-conviction relief breached 1.15 and 1.1/1.4.	Zimmerman argues no intentional harm; decision not to appeal was in Brenda’s best interest and not misconduct.	Yes; mismanagement and neglect found, but no deliberate misappropriation.
Did Zimmerman's failure to obtain and timely provide Brenda’s transcript violate professional rules?	Bar asserts failure to order and furnish transcript violated 1.15 and 1.4.	Zimmerman claims belief transcript was ordered; decisions justified by trial strategy.	Yes; failure to order/produce transcript breached 1.15 and harmed client interests.
Was the handling of the $1,650 transcript fee misappropriation or trust-account mismanagement?	Bar alleges funds were not deposited/used properly and were not accounted for.	Zimmerman contends accounting and trust procedures were corrected and not fraudulent.	Mismanagement at least; not a deliberate misappropriation; addressed mitigation later.
What discipline is appropriate given the conduct and mitigating factors?	Bar sought private reprimand with fee refunds and costs; cites prior cases for discipline.	Zimmerman notes mitigating health issues and corrective steps; argues for lesser discipline.	Public censures appropriate; private reprimand insufficient given trust-account and neglect concerns.
Do mitigating factors (health, remorse, corrective steps) affect likelihood of recurrence?	Mitigating factors justify lesser discipline but do not excuse conduct.	Respondent emphasizes health issues and subsequent compliance improvements.	Mitigating factors acknowledged; nonetheless discipline remains a public censure with refunds and costs.

Key Cases Cited

State ex rel. OBA v. Dunlap, 880 P.2d 364 (Okla. 1994 (Dunlap I)) (trust-fund mismanagement; public reprimand)
State ex rel. OBA v. Dunlap, 995 P.2d 1148 (Okla. 2000 (Dunlap II)) (neglect; suspension considered)
State ex rel. OBA v. Wagener, 48 P.3d 771 (Okla. 2002 (Wagener I)) (transcript issues; discipline considerations)
State ex rel. OBA v. Wagener, 107 P.3d 567 (Okla. 2005 (Wagener II)) (failure to tender record; discipline)
State ex rel. OBA v. Braswell, 663 P.2d 1228 (Okla. 1983) (supervision responsibilities; accountability)
State ex rel. OBA v. Funk, 114 P.3d 427 (Okla. 2005) (levels of culpability for trust-fund mishandling)
State ex rel. OBA v. Taylor, 4 P.3d 1242 (Okla. 2000) (mitigation in disciplinary context)
State ex rel. Oklahoma Bar Association v. Passmore, 264 P.3d 1238 (Okla. 2011) (de novo review; standard for discipline)
State ex rel. Oklahoma Bar Association v. Latimer, 262 P.3d 757 (Okla. 2011) (de novo review; public safety and discipline)
State ex rel. Oklahoma Bar Association v. Pacenza, 136 P.3d 616 (Okla. 2006) (de novo review; evidence standard)