STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN
2016 OK 109
Okla.2016Background
- In 2009 Alma and Oscar Nevarez retained Larry D. Friesen for a wrongful-death matter that settled in 2010 for $675,000; after fees and costs they received $462,438.00.
- The Nevarezes directed $350,000 into joint/personal bank accounts; a separate $97,438 was taken by Friesen under a second attorney-client agreement as a purported non‑refundable flat fee to prepay estate planning (wills, trusts, annuities) and to create future college/annuity accounts for three children.
- Alma (bilingual) repeatedly called over ~2½–3½ years seeking confirmation and documentation about the children’s college accounts; Friesen primarily mailed only bank statements and a brochure and did not establish the college accounts or prepare the promised estate documents.
- The Nevarezes sued in Jan 2014; Friesen denied missing funds and did not account or segregate the disputed $97,438; the suit settled in June 2014 with Friesen returning the $97,438 plus paying attorneys’ fees.
- The Oklahoma Bar Association filed discipline proceedings; the Trial Panel found multiple ethics violations and recommended one-year suspension. The Oklahoma Supreme Court reviewed de novo and disbarred Friesen, ordering costs.
Issues
| Issue | Plaintiff's Argument (OBA) | Defendant's Argument (Friesen) | Held |
|---|---|---|---|
| Whether Friesen violated Rule 1.15 (safekeeping, advance fees, accounting) | Friesen treated an advance flat fee as immediately earned, deposited/used operating funds, failed to segregate or provide accounting, and failed to deliver/distribute funds when disputed | He treated the fee as earned; claimed he did not realize a dispute until litigation and believed some work was contingent on client input | Violations proven: Friesen violated Rule 1.15 (advance fees must be held in trust, prompt accounting/delivery required) |
| Whether Friesen violated Rules 1.3 and 1.4 (diligence and communication) | Repeated client inquiries about college accounts went unanswered or received misleading responses; Friesen failed to diligently pursue or explain status | He claimed he was awaiting client information and only learned of a problem when sued; produced letters (whose authenticity was questioned) showing requests for client input | Violations proven: Friesen failed to act with reasonable diligence and failed to keep client reasonably informed (Rules 1.3, 1.4) |
| Whether Friesen charged an unreasonable fee under Rule 1.5 | The flat, non‑refundable fee was disproportionate to services actually performed and included services deferred for many years; clients paid for timely creation of college accounts that were never created | He asserted the fee covered numerous high‑priced services and was an agreed flat fee | Violation proven: fee was unreasonable under Rule 1.5 given results obtained and lack of timely performance |
| Whether Friesen lacked competence or otherwise brought discredit (Rule 1.1; Rule 1.3 RGDP) and appropriate discipline | Friesen demonstrated lack of understanding of ethical rules (treating advance fee as earned) and conduct caused emotional harm to clients; prior discipline increases severity | Friesen offered mitigation: stipulation to Rule 1.15 violation, revised fee agreements, repayment of $97,438, character witnesses | Violations proven: Rule 1.1 and Rule 1.3 RGDP violated; considering prior discipline and circumstances, Court ordered disbarment and assessed costs |
Key Cases Cited
- State ex rel. Oklahoma Bar Ass'n v. Perkins, 757 P.2d 825 (1988) (disbarment where lawyer failed to promptly repay client funds and misused client monies)
- State ex rel. Oklahoma Bar Ass'n v. Wright, 957 P.2d 1174 (1997) (suspension where advance fees earned for services not diligently performed; communication failures relevant to fee reasonableness)
- State ex rel. Oklahoma Bar Ass'n v. Sheridan, 84 P.3d 710 (Okla. 2003) (suspension for neglect, poor communication, mishandling client funds, and refusal to return retainer)
- State ex rel. Oklahoma Bar Ass'n v. Whiteley, 792 P.2d 1174 (1990) (public censure for failure of diligence, communication, and unreasonable fee)
- State ex rel. Oklahoma Bar Ass'n v. Beasley, 142 P.3d 410 (Okla. 2006) (discipline aims: protect public, preserve bar integrity, deter misconduct)
- State ex rel. Oklahoma Bar Ass'n v. Wilburn, 142 P.3d 420 (Okla. 2006) (appellate role to determine fitness to practice and appropriate discipline)
- State ex rel. Oklahoma Bar Ass'n v. Doris, 991 P.2d 1015 (1999) (comparison to prior cases appropriate but discipline determined case-by-case)