*1 i.е., in product, generator. Appellant, the in determining factor that this was not Iwhat ordered.” reply his brief directs our attention pages eighty-one eighty-two of the tri- Apparently, failure to deliver a satisfac- transcript providing proof al as of the tory user’s primary manual was not the scope pages trade usage. of These of the for rejection generator, reason of the but transcript only single reflect that a manu- only a by appellant was factor used in Kawasaki, facturеr, a supplies purchaser deciding, mind, at least own the manual, generator a with such and not that this is he was offered was not the one Thus, he had ordered. usage regarding common custom and in the the issue trade. the user’s manual significant. becomes less nоt requested Since the court was to take Finally, appel- the record reveals that custom, judicial notice of trade should the object lant’s at trial did not any nonetheless, judge, judicial have taken prepared of the court’s the instructiоns to something notice of which was offered However, jury. appellant personally did suggest evidence? I the answer is no. object jury dealing certain instructions Appellant’s attempt prove first a that right rejection of recovery with necessary a user’s manual was of incident theory. under that At time no while the only sale came after the verdict and settled, instructions jury being to the were then two profes- affidavits of law school appellant suggest even the court take respected practitioner sors of law. judicial usage custom, notice of trade or untimely These affidavits were as as well any appellant’s requested nor did of in- being They heresay. rank came too late. theory. structions mention this 1-205(2) provides Title 12A O.S.1991 § Examination of trial court’s instruc- scope "... The existence and of such a jury to the do tions not reflect funda- ” usage proved to be as [E.A.] facts... mental error. The fact issues were submit- Moreover, out, points appellee as 12A O.S. a jury ted to jury twelve citizens аnd the 1-205(6) provides: “Evidence aof § unanimously adversely found to appellant. usage party relevant of trade one is not I judgment pronounced would affirm until he given admissible unless and has jury accordance with the verdict. party the other such notice as court I am authorized to state that Justice prevent surprise finds sufficient to unfair joins LAVENDER with me in the views to the latter.” expressed herein. dispute appellant There is no was Ex. {Def. 9} tendered document titled Regulated Single
“Self Alternators Operating and Maintenance In-
Phase — Appellant structions”. сontended before manual, jury this was not a user’s STATE of ex rel. OKLA Thus, appellee it was. it contended was for ASSOCIATION, HOMA BAR jury to decide. Complainant, appeal, In the filed this contro- briefs v. versy arisen or has as whether not the WOLFE, Respondent. Earl W. failure to furnish the users manual was No. SCBD 3864. actually appellant refused the reason deliv- ery generator. Appellant testified Supreme Court Oklahoma. (the rejected point genera- at one that “I it June 1993. tor) genera- it not a because was Kawasaki As on Limited Cоrrected Grant deny that.” In his tor and he didn’t other Rehearing Nov. said, “Well, testimony, I appellant yes I no don’t think can answer or because (insuf- reject solely basis didn’t it manual). major
ficiency It was *2 Wolfe, pro
Earl W. se.
OPINION WATT, Justice. complaint against a
The OBA filed 22, complaint, con- on October 1992. The counts, sisting of six followed grievanсes against four clients: Daniels, Compton, Maggie Wilmer Williams, The and Bob Sheila Wolf. alleged keep OBA that Wolfe had failed to informed, adequately clients had protect proceedings, their interests in court cooperated and had not with thе OBA’s grievances. investigation of the Respon- A trial of the Professional heard matter De- sibility Tribunal 1, parties stipulated cember Daniels, Wolfe, an the facts. Wilmer hearing. investigator OBA testified at FACTS AND HISTORY PROCEDURAL (Wilmer Daniels) I II Counts inadequate Count related Wolfe’s Count II dealt representation of Daniels. timely respond failure to with Wolfe’s the OBA’s notices. represented federal against former em-
court action Daniels’s Co., Sears, for employ- Roebuck ployer, & filed motion discrimination. Sears ment summary judgment for tо which Wolfe Forty-three days respond. after Sears motion, fed- filed its October granted motion court Sears's based eral anything failure to file to contro- Daniels’s Sears the truthfulness of facts vert 1988, 26, On the federal alleged. October 7, November judgment. entеred On court court days after the federal twelve Wolfe filed motion judgment, entered mo- judgment. Wolfe’s amend the alter or on his claim when was based tion ruled on Sears’s motion “Plaintiff[’s] court nearly completed response and brief were the motiоn court denied ...” federal February or amend. to alter notice of Daniels’s Counsel, filed Daniels a for Douglas, E. Asst. Gen. OK John to the U.S. Court appeal Ass’n, intention complainant. Bar for 22,May (Bob Count for Wolf) V and Sheila Appeals the Tenth Circuit. On ap- the Tеnth dismissed the Circuit Wolfe was retained to file a claim peal prosecution. for lack of Jay, delay suit, Wolfs. Because of his in filing gave Dan- The OBA notice to Wolfe of *3 four of the Wolfs’ six claims the 7, August grievance iels’s on 1991. Wolfe by were barred the statutе of limita- obtained an extension of time to file his tions. response September to but filed nothing on that re- date. Wolfe failed to (Private Count Reprimand) VI spond request the OBA’s second to written 18, September finally dated 1991. Wolfe Responsibility Professional Tribunаl response grievance filed a to Daniels’s on private reprimand issued to on Wolfe 14, 1991, after October the Professional 30, August reprimand 1991. This was Responsibility Commission had served based Wolfe’s dilatory negligent and a deposition subpoena. Wolfe with Wolfe respect handling conduct with the to all the de- allegations admitted factual but matters, clients’ failing for to communicate timely response nied his failure to file a to clients, with his and failing for file to re- summary judgment Sears’s motion for vio- sponses grievance to investigations. OBA lated the Rules of Professional Conduct. THE TRIAL PANEL’S FINDINGS (Mavis Compton) III Count AND CONCLUSIONS found, Compton grievance against panel Mavis filed a The trial and the record 20, 21, August supports, August Wolfe on to act Wolfe failed with rea- 1991, diligence representation the OBA griev- mailed notice the sonable his obligation ance to Wolfe and told him of his the federal court case. The Pan- days. pointed to el respond ninety attempted within out that Wolfe to de- respond ground regretted failed to fend on thе to OBA’s notice. The that he ever notice, having case, OBA sent second taken but failed Daniels’s “as it awas weak, case, respond to to it. The thin Respon- factually sup- difficult to sibility subpoena port.” Tribunal issued a Wolfe also criticized the direct- federal ing give deposition judge give Wolfe to his for to failing the Daniels matter October consideration, although 1991. On October due Wolfe obtained admitted agreement having respond an from OBA to set Wolfe’s to the defendant’s deposition summary for а judgment timely later date in return for motion in a agreement way. copies Wolfe’s to While file a written re- Wolfe claimed he sent sponse Daniels, Compton’s grievance filings of court he failed to satisfactorily explain which Wolfe filed Octobеr 14. a letter Daniels wrote January complaining to him in Responsibility The Professional Commis- Wolfe’s failure to communicate him. with sion Compton’s decided to dismiss Mavis Wolfe’s excuse for not in the brief grievance against Wolfe. The OBA’s alle- appeal tо the Tenth Circuit was that he had against Wolfe, therefore, gations dealt leg falling his after broken on ice. The with to respond Wolfe’s failure to their Panel observed that is not Wolfe’s “excuse inquiries timely manner, in a not his with credible.” representation Comрton. of Mavis Wolfe tried to excuse his conduct for having let statute of limitations bar Williams) (Maggie Count IV six saying four of the Wolf’s claims Maggie appear weak diffi- factually Williams at the this case was also was, therefore, hearing and her grievance suрport, cult and that he did not learn Nevertheless, dismissed. record the facts until after he filed suit. The respond showed that Wolfe had to trial that Wolfe failed observed tried grievance. respond ground OBA’s notices his failure to on the excuse DISCUSSION large required him to that his case load things rep- and he had decided to prioritize panel’s findings and con clients also claimed resent his first. Wolfe supported by the record. Ne clusions are “feeling” com- was that OBA’s vertheless, must the evidence we consider by his against him were motivated plaints independently conclude what de novo and in a another successful defense of discipline ex imposed. should be State rel. grievance discipline different OBA Miskovsky, Bar Association v. that his Wolfe admitted statement mаtter. (Okl.1992). We con 832 P.2d unsupported by facts. The was continuing failure to cerned Wolfe’s “most these claims as panel characterized investiga timely respond to OBA notices of irresponsible.” also serious *4 unsupported grievances, tions of and his of the OBA’s counts characterized two investigations that the OBA’s of “frivolous,” “feeling” and claimed against him as conduct, grievances two his were malicious. of these clients’ that none others, Further, of discipline nor the merited filed no brief this counts Wolfe answеr addi- Wolfe that two appeal. superimposed kind. admitted of this on All is grievance investigations were tional OBA inadequate representation of Wolfe’s timely not to which he had filed pending us that These factors convince clients. responsеs. prac suspended from the should be months, six rather than the tice of law for panel that had The trial concluded Wolfe pan ninety days by the trial recommended of 1.3 Rules Rule of the Oklahoma violated el. panel The trial Professional Conduct. to diligently had failed found that Wolfe The record shows that Wolfe either Daniels’s action prosecute timely six respond separate to OBA investi- Sears, Mr. Mrs. claims or and Wolf’s addition, failed gations.1 In Wolfe has Jay. panel against the of in at diligently handle matters least clients’ concluded that Wolfe had violated further 8.4(a) three Rule of the Rules instances.2 failing keep by 1.4 of the Rules Rule Conduct, App. of Ch. Professional 5 O.S. progress of his Daniels informed of 3-A, professional that it is provides miscon- panel thаt case. concluded attempt lawyer duct or for a “violate timely respond to the failure to Wolfe’s of Conduct violate the Rules Professional grievances involving of Dan- OBA’snotices require lawyers ...” The Rules that re- iels, Maggie Compton, and Williams griev- spond investigations of to notices 5.2 of violated Rules 8.1 and the Okla- 5.2, ances them Rule sent to the OBA. Rules of Conduct. homa Governing Proceedings, Rules Disciplinary The trial recommended that Wolfe O.S.1991, 1, App. 5 Ch. 1-A. Wolfe violat- practice suspended frоm the of law for be investigations. ed Rule 5.2 six different days, pay of the ninety proceed- the costs requires Rule “to act with 1.3 year. remain ings, probation and one diligence promptness rep- reasonable and April Appli- the OBA filed an resenting a client.” violated this cation to in the amount of Assess Costs rule at least three occasions. $1,137.90. objected not Wolfe has to this pattern repeated Wolfe’s offenses application, appropriate find it is is we 6.16, type pay costs undеr of misconduct that the Comments to these Rule Governing Disciplinary Proceedings, address. In Rules Rules the Comments to O.S.1991, 1-A. App. say: Ch. Rule 8.4 commentators grievances 1. The six to which did not 2. has The three instances in which Wolfe (1) respond timely (1) ain manner are the investi- rеpresented adequately his clients gave gation private reprimand case; case; rise to the (2) (3) at the Wolf least Wolfe; (2) (3) investigation; the Daniels gave private repri- one matter that rise to the investigation; (4) Compton the Williams investi- mand. (5) (6) gation; pending two additional grievances. offenses, repeated even A pattern consid- significance of minor when
ones STATE of Oklahoma ex rel. OKLA separately, ered can ASSOCIATION, indicate BAR HOMA indiffer- legal [Emphasis obligation. ence Complainаnt, added.] v. such The rec- We find indifference here. THOMPSON, Lynn Respondent. Richard Wolfe, now, does not ord shows even his miscon- recognize seriousness of No. SCBD 3889. duct. Supreme Court of Oklahoma. obliged
We are to mete out disci pline way in a that will instill confidence in Nov. lawyers public that misconduct will
give appropriate punishment. rise to Mis suspension Id. P.2d
kovsky, at 818. A appropriate months is
of six here. suspend- that Earl
We order W. Wolfe be *5 practice
ed from the of law months for six date opinion,
from the of this and that he
pay proceedings costs of in these $1,137.50
amount of within more than days
ten from the date of of this
opinion. ORDERED;
SUSPENSION IM- COSTS
POSED.
LAVENDER, V.C.J., HARGRAVE, KAUGER, JJ.,
OPALA and concur.
HODGES, C.J., with whom ALMA
WILSON, J., joins, part concurs part.
dissents
HODGES, Justice, concurring Chief
part dissenting part: adopt ninety-day suspension would year probation
and one as recommended Responsibility Tribunal.