STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN
2016 OK 109
| Okla. | 2016Background
- In 2009 Alma and Oscar Nevarez retained attorney Larry D. Friesen to represent them in a wrongful-death matter; the case settled in 2010 for $675,000, netting the clients $462,438 after fees and costs.
- The Nevarezes authorized placement of $350,000 into bank accounts and signed a second attorney-client agreement on September 20, 2010, which treated $97,438 as a non‑refundable flat fee to Friesen for future estate planning, trusts, annuities and setting up college accounts for their children.
- Friesen deposited the $97,438 into his operating account immediately and did not establish the promised college accounts, trusts, or complete estate work; his office primarily mailed bank statements to the clients over several years.
- Alma repeatedly requested information about the college accounts from 2011–2013; the clients ultimately sued in February 2014, and the dispute was settled in June 2014 with Friesen returning $97,438 and paying additional costs and fees.
- The Oklahoma Bar Association charged Friesen with multiple ORPC and RGDP violations; the Professional Responsibility Tribunal found clear and convincing evidence of violations and recommended one-year suspension; the Oklahoma Supreme Court reviewed de novo and imposed disbarment and assessed costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Safekeeping/deposit of advance fees (Rule 1.15) | Friesen improperly treated advance flat fee as earned and deposited/kept it in his operating account instead of a trust account; failed to account and to separate disputed funds. | Friesen claimed confusion about when a flat fee is earned and said he only learned of a dispute when sued. | Court: Proven by clear and convincing evidence — violation of Rule 1.15; fee should have been held in trust and disputed portion segregated; failure to account. |
| Diligence and communication (Rules 1.3, 1.4) | Friesen failed to act with reasonable diligence, ignored persistent client inquiries about college accounts, and gave misleading or no substantive updates. | Friesen claimed he was waiting on client information and produced letters asserting requests for info (authenticity disputed). | Court: Proven — violations of Rules 1.3 and 1.4 for lack of diligence and inadequate communication. |
| Unreasonable fee (Rule 1.5) | The non‑refundable $97,438 flat fee was disproportionate to the work actually performed (mostly mailing bank statements); clients lost years of interest. | Friesen asserted the fee covered many future services and that he customarily charged high fees for estate work. | Court: Proven — violation of Rule 1.5; fee unreasonable given results, delay, and lack of timely performance. |
| Competence and bringing discredit (Rule 1.1 and RGDP 1.3) | Friesen lacked competence in applying ethics rules (misunderstood treatment of advance fees) and his conduct caused emotional harm and discredited the profession. | Friesen presented character witnesses and argued prior discipline and mistakes were mitigated by restitution and contract changes. | Court: Proven — violations of Rule 1.1 and Rule 1.3 RGDP; past discipline and facts support significant sanction. |
Key Cases Cited
- State ex rel. Okla. Bar Ass'n v. Perkins, 757 P.2d 825 (1988 OK) (failure to promptly repay client funds and misuses of client funds can warrant disbarment)
- State ex rel. Okla. Bar Ass'n v. Wright, 957 P.2d 1174 (1997 OK) (advance fee not earned where lawyer failed to perform diligently; suspension appropriate)
- State ex rel. Okla. Bar Ass'n v. Whitely, 792 P.2d 1174 (1990 OK) (public censure where lawyer failed in diligence, communication, and charged unreasonable fee)
- State ex rel. Okla. Bar Ass'n v. Sheridan, 84 P.3d 710 (2003 OK) (six‑month suspension for neglect, mishandling client money, and failing to return a retainer)
- State ex rel. Okla. Bar Ass'n v. Doris, 991 P.2d 1015 (1999 OK) (discipline must be case‑specific but prior decisions are instructive)
- State ex rel. Okla. Bar Ass'n v. Weigel, 321 P.3d 168 (2014 OK) (attorney‑client fee contracts upheld unless oppressive or obviously disproportionate)