*1 “during income the continu- loss of for disability period.18 As distin- ance” STATE of Oklahoma ex rel. OKLA- classes, payout per- guished from all other ASSOCIATION, BAR HOMA contemplates partial disability manent Complainant, physical fitness, recompense lost for paid mea- though the amount the worker is (or she) wages he by percentage ROZIN,
sured Respondent. D. Mitchell for the covered would have earned but No. 3754. SCBD injury.19 Supreme Court of Oklahoma. today’s opinion, I treat an Unlike would permanent partial disability as award for Dec. 1991. separate property of the married awardee (or recovery it is a form of for his whom her) for impaired body function. Benefits permanent disability
temporary and total temporary partial disability are for
and for Payments
lost fall under income. categories
these latter should hence be le-
gally spousal available for division. in this divorce case settled husband compensation by joint
his claim workers’
petition. The record does not disclose the impaired physical
nature of his condition. lump-sum
To the extent that the settlement compensation for be found to include
permanent partial disability, it on remand from the rest of the
severed apart
award and set to the husband as his
separate, non-marital asset. stated, I
For the reasons would not clas- partial replace-
sify permanent disability as earnings recompense
ment of but as bodily concept function. The is too
lost “impaired corpo-
closely associated with transmogrified by judi-
ral to be fitness” cial into a marital asset.20 fiat argument, 20.Assuming, phrase "during for the sake of the continuance” is in- 18. The replaced earnings’ of all subsections of presence cluded in the terms three element could of a provide O.S.Supp.1990 22 which sched- § permanent partial disability be infused into compensation 22(1), permanent total disabil- ule of ity, ability, judicial interpretation, no there would still be temporary supra total dis- note § payouts. legal of these basis for marital division 22(2), temporary supra note § entitlements, partial permanent As a class of 22(4), disability, supra partial note 17. The § disability earmarks for lacks sufficient textual permanent partial disability, subsection on spousal property recognition its as an item 22(3), quoted language. does not contain the § interest. supra note 15. See 22(3), O.S.Supp.1990 supra note 15. § 19. See 85
1128 practice law
Respondent was licensed to incident that at time of the Oklahoma parties proceedings. in these The resulted stipulated as further follows: June, 1989, Respondent was [1]. hired to employed a law firm that was the estate Schobe. probate of Leslie S. “Schobe”), (hereinafter, son Kent Schobe deceased, executor of of the was named estate of the deceased. will afterwards, and Schobe Respondent Soon proceedings begun to have met and were appointed executor. Schobe Schobe as appointed probate procedure and the began. 1990, July 18, hearing was On
[2]. probate. Re- to held to conclude the date, spondent, on or about that discover- Notice had not ed that the to Creditors hearing published, filed or so the been could not be held. Rather than continue hearing problem, and Re- correct this spondent nothing. did 1990, 18, hearing July After the [3]. date, Respondent and Schobe contacted inquiry made into the outcome of hearing. Respondent misrepresented to ah hearing that the went fine and Schobe Allowing Accounting, Deter- Order Final Counsel, Murdock, Oklahoma Dan Gen. Distribution, and Heirship, mination of Ass’n, complainant. City, for Bar Oklahoma Discharge had been entered. Rife, City, Gary A. Oklahoma September On or about [4]. dent. attempted Respondent Schobe to contact copy but was to obtain of the Order HODGES, Vice Chief Justice. so, spoke to do instead to ... unable and Association, Bar Complainant, Oklahoma firm in partner in the law which [A] warrant- alleged one count misconduct Respondent was Schobe an associate. attorney, ing discipline against respondent final order copy of the asked [A] Re- D. Rozin. The Professional Mitchell Respondent to mail had failed because (PRT) that re- sponsibility found Tribunal him one. 1.3, rules spondent’s conduct violated Shortly be- after the conversation [5]. 1.4(a), 8.4(a) 8.4(c) and of the Oklahoma Schobe, confronted tween [A] [A] Instead Rules of Professional Conduct. Re- Respondent concerning the order. suspension practice thirty-day explained lied to spondent [A] complainant, by the of law recommended by Judge Kel- signed order had been suspen- sixty-day PRT recommended a then ley had not filed. but [A] sion. Respondent file the order requested copy him of the filed provide with a Agreed Stipula- The into entered copies to and to send certified order Law. tions of Fact and Conclusions of Schobe. “[rjespondent stipulations reflect that the Respondent subsequently manu- Bar Associa- is a member Oklahoma [6]. he “cut and by the a document wherein practice and is law factured tion licensed signature, judge’s stamped Supreme pasted” of Oklahoma.” Court the State exercises original juris and date This Court the court clerk’s certification disciplinary in lawyer proceedings. diction stamp order onto this file from another Colston, ex Bar State rel. Okla. Ass’n v. the altered doc- Copies of document. (Okla.1989). P.2d 923 The review provided and a to Schobe uments were Therefore, by this is de novo. Id. *3 the of order to similar altered version respondent’s argu need address we not [A], the clerk’s certification. absent court penalized respon ment that the PRT the 1990, mid-December, Respon- In [7]. having practice dent for in for a not telephone a call from the received dent longer time. County the of Oklahoma Office Respondent and informed facts as are stipulated Clerk We find that the requested copy had a certified of by Schobe true. the PRT are other Not mentioned Order, (1) respondent’s Final but an order was not in the facts the favor: 20, in by found the court file. On December dent’s actions were not motivated mone- 1990, (2) Respondent tary self-gain, respondent cooperat- and has contacted Schobe matter, (3) complainant on misrepresentation to ed with the confessed the and coverup appears the to be an occur- subsequent attempt his error. incident isolated to rence, (4) client and the suffered no eco- In the conversation between [8]. respondent nomic loss. We also find that on Respondent and December Schobe complainant contacted of free the his own agreed Respondent to allow Schobe miti- any will without coercion. Another to until inform to wait after Christmas gating respondent is that a CPA factor probate in the the firm of his misconduct practiced years who for more than three However, Respon- of the Schobe estate. accounting never major with a firm and firm to the his dent failed inform of complaint disciplined or was for received a eventually and Schobe contacted dilemma Further, the witnesses for the reason. directly reported the nature of and [A] respondent general his attested to charac- 20, 1990, telephone their December con- competent and him to a attor- ter believe be regarding the Final Order. versation ney spite Respondent in this incidence. of 28,1991, January orOn about the [9]. organiza- religious is active and in civic a Office General Counsel received tions, part ac- plays important an in those setting his Respondent letter forth tivities, by the respected is still well and Respon- in the matter. activities Schobe organizations. members of those the admitted his of Rules dent violations the of Professional Conduct to Office of recognized that the It must also be Counsel. the General respondent already extensive has suffered He in Respondent’s ly conduct for his was an associate behavior. violate[d] [10]. 1.3, mandatory prestigious partnership firm and on a provisions the of Rules a law of 1.4(a), 8.4(1), (c), only he lose likelihood and Oklahoma Rules of track. Not did all becoming From partner, job. he lost his Professional Conduct. loss, monetary significant he suffered only mitigation The PRT found the to be of damage. great deal He also suffered a Respondent discovered he that once peo and loss face with embarrassment misrepresen- longer perpetrate the could no punishment ple respected. he highly report firm would tation and that the law must be naturally which occurred Bar, reported himself. The him to the he determining dis proper in the consideration respondent’s PRT decided that because by cipline imposed to this Court. be he practice duration of because short Nevertheless, respondent the the violated capability and charac- possessed the mental Conduct, Okla.Stat. Rules of Professional to manufacture a document misre- ter Respon- (Supp.1988). client, respondent 1, app. ch. 3-A the tit. present facts his by failing to “act rule 1.3 suspended more the dent be than violated diligence promptness thirty days by complain- recommended with reasonable by 1.4 representing a client” and rule sixty-day and instead recommended ant failing client informed about keep his suspension. by cited serve as He also violated The cases the case. status of present case. We do not 8.4(a) violating guides the Rules of Profes- by rule 8.4(c) by engaging prior agree respondent that on and rule with based sional Conduct fraud, dishonesty, de- involving it be unfair to “in decisions of this Court would conduct ceit, sixty-day suspen- misrepresentation.” impose discipline or However, less present case. sion rules, respondent violating these suspension plus the sixty-days two- than relationship. attorney-client breached probation insufficient to years would be relationship is one of attorney-client “The attorney discipline. satisfy goals re- This highest trust and confidence. Therefore, respondent it is ordered that the attorney’s an deal- lationship requires that practice of suspended from the law characterized ing his client must be with *4 (60) days, suspension to start sixty such ex and fairness.” State the utmost candor final, the date this decision becomes Hatcher, 452 P.2d Bar Ass’n rel. Okla. (2) probation for two and thereafter be on (Okla.1969). purposes at- The of 154 years. preservation of this torney discipline are protec- in Bar and confidence trust and subject Respondent’s probation is to the ex public and the courts. State tion of following conditions: Peveto, 620 P.2d Bar Ass’n v. rel. Okla. (a) Respondent shall abide the Rules purpose (Okla.1980). Part of that 394 Conduct; of Professional by both the is deterrence of like behavior (b) Respondent cooperate shall with the of the Bar. respondent and other members any in of the General Counsel inves- Office Denton, Ass’n v. ex rel. Okla. Bar State tigation allegations unprofessional of (Okla.1979). 663, 665 598 P.2d may have or come to the conduct which goals, the com on these Based attention; and Counsel’s General only thirty- initially plainant recommended (c) Respondent supervised by be shall PRT recom days suspension. After the Lawyers Helping Lawyer’s member of the sixty-days suspension, the Bar mended pro- throughout the term of his Committee Although adopted that recommendation. Respondent’s supervisor shall be bations. are not bind recommendations the PRT’s immediately report to Of- required to great weight. State ing, they are accorded any violations fice of the General Counsel McMillian, 770 Bar Ass’n v. ex rel. Okla. by respondent. probation conditions (Okla.1989). giving After P.2d probation during If at time to the PRT’s rec appropriate consideration respondent that General Counsel concludes ommendation, sixty-days we believe complied the terms and condi- has not with two-year proba suspension coupled with probation, of his then the Office tions discipline to attain appropriate tion is the application file an the General Counsel goals. original probation with the trial to revoke sup- in respondent has cited cases filing of the panel and that notice of the reprimand a mere port position of his given to the application shall be The com- present case. is sufficient hearing A then scheduled dent. shall support in of its plainant cited cases has panel a determination the trial with sixty days suspension is the position that respondent made as to whether shall be discipline. range A appropriate wide the terms and conditions of the has violated in cases. discipline imposed these panel If determines probation. the trial because at- These cases can be reconciled violation, probation then the there is no must be decided on torney discipline cases panel finds a continue. If the trial shall case involves case-by-case Each basis. occur, then a recommendation violation did by the Bar and different recommendations Supreme made to the Court shall be PRT, transgressions, and dif- different proper discipline. mitigating circumstances. While ferent Further, pay respondent is ordered to fairly, it discipline should be administered $815.92, proceeding, within the costs of this not be the same in all cases. will (30) this thirty days from the date decision final.
becomes FROM SUSPENDED
RESPONDENT DAYS, LAW
PRACTICE OF FOR'SIXTY PROBATION FOR TWO
PLACED ON THEREAFTER, AND ORDERED
YEARS PAY
TO COSTS.
LAVENDER, DOOLIN, ALMA JJ.,
WILSON, SUMMERS, KAUGER and
concur.
OPALA, C.J., with whom SIMMS ORDER JJ., HARGRAVE, join, concurring part dissenting part: Petitioner/Defendant in the trial court suspension impose longer I would asking application filed professional this most serious breach jurisdiction original assume and issue a discipline. requiring Respondent of mandamus writ
disqualify sitting as himself the trial judge in a set for trial before him. matter The case involved set for trial Respondent judge three different before on occasion, plain- to the occasions. Prior last requested a settlement conference. tiff scheduling of another Because conflicts suggested judge, Respondent that he con- CRAIG, Petitioner, James C. A the settlement conference. confer- duct Respondent evaluated ence was held and plaintiffs the case favor WALKER, Judge Thomas Honorable $500,000.00. After unfavor- amount Court, County, the District Carter ruling, Petitioner filed a motion able Oklahoma, Respondent. State of Respondent, Respon- but disqualification No. 78062. rehearing, the chief refused. On dent Respondent. disqualify judge refused to Supreme Court of Oklahoma. filed Petitioner then this action. Jan. 1992. response, Respondent urges that dis- unnecessary because both qualification is agreed he serve as parties that Re- judge for the settlement conference. to a amounts spondent concludes waiver. 5(L) O.S.1981, 2, App., Ch. Rule
Title a settlement allows the court order the trial judge “A than conference. other such settle- normally preside at judge will conference, During this ment conference.” so required to be candid are guide may properly settle- judge cooperate ful- Failure to discussions. ment in sanctions. result ly with rule of the rule is that the thrust It is obvious judge from tenden- insulate the trial