*1 sought to be established negligence Oklahoma, hospi- that the doctrine here was under the OKLA STATE by letting him fall. ASSOCIATION, injured plaintiff tal BAR HOMA ipsa loquitur majority concludes res Complainant, by assigning Nurse Parris the role satisfied v. “instrumentality within the control of KESSLER, Respondent. Paul J. the “in- hospital.” jury But the found negli- free of strumentality” herself was OBAD No. 984. up hospital hooks gence. Nothing else No. 3692. SCBD fall. Under the evi- of the cause Supreme Court of Oklahoma. dence, hospital fact that the the asserted true, understaffed, if even was not a July 1991. fall. Nor was there in the causal factor Rehearing Denied Oct. 1991. hospital had incor- any that the evidence how to ambulate rectly taught nurse Parris jurors found nurse
patients. When the letting plaintiff negligence in Parris free of way a any possible fall eliminated against hospital, based on the verdict properly be af- hospital’s negligence, could them. firmed on the evidence before as internally so inconsistent verdict judg- to afford allowed this should party. Chicago, R.I. & for either See ment Austin, 144 P. 43 Okl. v. Ry. P. Co. (1914), sought plaintiff wherein respondeat supe- recovery theory trial remanded for a new There we rior. favor jury’s verdict charge of the train conductor defendant the railroad. Rather against victory into a translating this verdict Appeals, or the Court of hospital, as did majority, I does the plaintiff, as being hopelessly irrecon- reject would as for another matter remand the cilable and Austin, supra, 144 P. at per Chief to state that Vice I am authorized join SIMMS and Justice Justice HODGES in these views. *2 funds, commingled
sler misused client supports and that the same evidence a find- ing misrepresented the disposition that he the trial The of the client’s funds to court. two-year day suspension one with the $1,790.62 costs sum of in the is warranted.
FACTS duly attorney
Kessler is licensed member of the Oklahoma Bar Association. represented a client in a fore- Kessler by proceeding closure initiated Citizens foreclosure, During the Bank of Edmond. negotiated a vice-president the client the the bank lease back home foreclosing which the bank was for $800 approached month. The client Kessler and agreed Kessler formalize lease. the parties delivery Both the testified that the check was from the fore- simply action. was closure Kessler agreement being by check the drafted the bank to determine the commencement of the rental and to deliver the negotiations check. All were done the 7, 1989, client the February bank. On attorney representing Kessler wrote to the asking the him confirm lease bank the to notify Kessler concern- ing period. commencement of the rental 6, 1989, gave May
On the client Kessler receipt in cash. issued $800 White, Counsel, secretary. At the bottom of Gloria Miller Asst. Gen. Ass’n, receipt, noted was for City, Oklahoma Bar she that Oklahoma rent Kes- complainant. the June 1989 to Citizens Bank. depos- that was not sler testified Nance, City, Kenneth R. Oklahoma account, that ited trust into respondent. placed in a box maintained locked Kessler’s office. KAUGER, Justice. sent a letter to Kessler June complainant, Associa- enclosing a vice-president of the bank (Bar Association), alleges tion that re- May allegedly sent on of a letter (Kessler) spondent, Paul J. com- May purported to 1989. The 30th letter mingled funds and used the May dated transmit check No. purposes other than those authorized Kes- drawn on $800 in the amount by the client. Bar Association also at Two officers personal account. sler’s alleges misrepresented that Kessler received testified that bank proceed- trial court in a writ assistance dili- they made a dated June letter ing that used its had been and the May 30th letter gent search purpose. panel intended found. they were never check— findings concerning
made no of fact June, a Writ Assist- the bank filed misrepresentation to the trial court. We action for the foreclosure ance in the find that the Bar Association established property. Late Kes- client’s removal by clear and evidence that June, objection Kessler filed an car, the Writ one or two in his and one in his billfold. stating: vice-president of the bank The checkbooks contained 25 checks which agreed were numbered sequentially. would be leased to Check num- month; bers per the client for that Kessler 730 and 731 $800 were all *3 written in bank; chronological paid had order and that the bank had issued in 1989, July, not weeks after money. returned the Kessler client was claimed he wrote check number 732 for removed from the property. client’s rent. alleges Kessler that after the Writ of The Bar Association advised Kessler of issued, Assistance was the bank returned complaint 14, on December 1989. No original 30, his May letter dated 1989 and response was received. On December the check in a bank envelope without a 1989, a second letter was sent to Kessler cover letter to him. Kessler contends that by certified mail. January 26, 1990, up he then original tore letter and Kessler response. filed his letter, In that vice-president check. The of the bank testi- Kessler correspondence referenced alleg- fied that the letter and check were not edly sent on January 1990. The Bar found but had been found he would Association has no record of receiving the original have returned the letter to letter. Kessler included in his correspon- Instead, Kessler. he would have written dence a January 18th letter. his referencing own letter May 30th Kessler maintained as he throughout letter. Kessler maintains that the vice- proceeding that he mailed the Bank president’s job was in jeopardy because he $800.00, a check and that when the had bound the bank to a lease returned, check was applied the check which he longer authority towards the outstanding client’s bill. negotiate. The hearing for this matter was held on July, In Kessler wrote the client and 4, 1990, December parties and the were informed him that he had credited the $800 allowed to file closing arguments with the against outstanding owed, statements panel. The Bar closing argu- Association’s he returned $500 client. The testi- ment 4, 1991, was to be filed January mony disputed concerning why the $500 Kessler’s was to be January filed on was returned to the client. Kessler con- 1991, and reply by the Bar’s January tends that the client July came after the 1991. The Bar Association closing filed its letter and stated that he needed the money argument 8, 1991, on January twenty payroll agreed and Kessler to write the days later Kessler filed closing argu- his check. The client contends that it was for January ment on 1991. reply No brief cash $500 bond which was forfeited when was filed. The Trial Report Panel’s appear Kessler failed to April 22, 1991, filed on days ninety almost DUI proceeding. August, Kessler closing arguments after were filed. On wrote the client and informed him that June Kessler filed a motion to paid because he hadn’t fees dismiss for comply failure to with 5 past representation, Kessler would no O.S.1981 Ch. Rule 6.13.1 The longer represent him. Kessler told the objection initial filed the Bar Association pick client that he could up his file. stated that an request- extension had been personal bank statements were ed. diligent when a search failed introduced into evidence. His checks were up extension, to turn request for an in the form of individual checkbooks. Kes- Bar Objection Association filed a Corrected sler testified that he groups used different to the Motion July 1991. It stated of checks because kept some of the that an requested, extension had not been office, home, checkbooks at the some at his and that that an assertion extension Title 5 report O.S.1981 Ch. Rule 6.13 which shall contain the Trial Panel's provides: findings pertinent fact on issues and thirty days (including "Within after the conclusion conclusions of law a recommenda- hearing, discipline, the Trial Panel shall file with tion as to indicated, if such is found to be Supreme the Clerk of the Court a written and a as recommendation to wheth- typographical clear and evi- was a established requested had been error. disciplinary proceeding, In a bar dence.2 a licensing this court as court exerts exclu-
I jurisdiction. Accordingly, original sive IS DENIED. panel’s THE TO DISMISS are MOTION while trial recommendations weight, ultimately it is great afforded asserts this matter de- responsibility to make the final Pan Court’s because Trial should be dismissed thirty days report to file its within el failed Our review is de novo in con- termination. The Trial Panel by Rule 6.13. required sidering presented as well as the the record report days after the hear eighty filed its panel’s disciplinary recommendation.3 *4 ing No extension was re had concluded. in quested. was decided State This issue Bar Association offered evi v. Bradley, ex rel. Oklahoma Bar Assoc. money that the client’s was never dence (Okla.1987), in which 746 P.2d 1133 account, a deposited into trust and that although we do not condone we held that sent from the trust account to check was delay such in and of itself delay, such a the bank for the Kessler contin $800.00. jurisdiction. of does not divest this Court to to assert that the cheek was mailed ues Here, disapprove in of the Bradley, we He also that a re the bank. contends delay report. filing in the be Apparently, sponse was sent to the bar. not find that Kessler was cause we do delay, prejudiced by this the motion dis neither were ever received. The miss is denied. discipline is warranted violation the Rules Professional Con Rule 1.15 of
II Governing and Rule 1.4 of the Rules duct THE BAR ESTABLISHED ASSOCIATION Disciplinary Proceedings relating the AND CONVINCING BY CLEAR EVI- of client funds.4 use DENCE THAT KESSLER COMMIN- previously disciplined has MISUSED CLIENT FUNDS. GLED January Kes- by this Court. CONDUCT WARRANTS A TWO- THIS suspended eighteen months sler SUSPENSION, YEAR AND ONE DAY preserve identity the and for failure AND IMPOSITION OF COSTS. property of a client. The Bar Association may impose discipline Before we requests that we disbar Kessler. Kessler upon attorney, allegations must an the be investigation, O.S.Supp.1988 er 4. Title Rule the costs of the record and 5 1.15, imposed respon- part: proceedings provides pertinent should be in dent), accompanied by plead- and all shall be "(a) lawyer property shall hold of clients or transcript ings, proceeding, and a of the lawyer’s possession persons third that in a Report thereat. A of the exhibits offered representation separate with a in connection concurrently is Counsel, be served the General lawyer’s property. own Funds shall (if respondent attorneys and kept in a in be account maintained thirty day any). period referred to situated, lawyer’s the state where the office is only by may be extended the Chief above or elsewhere with the written consent of the Justice, good shown." cause person. property shall client or third Other appropriately be identified as such safe- and Rule 2. Title 5 O.S.1981 Ch. 6.12 guarded. Complete records of such account part: pertinent kept by property funds and other shall be finding against respon- a To warrant "... lawyer preserved a shall be case, charge charges dent in contested or representa- of the five after termination must established clear tion. evidence, at two least members of (b) Upon receiving or other findings." the Trial Panel must concur interest, person which a client or third has Braswell, ex rel. Bar Assoc. v. State Oklahoma notify lawyer promptly the client or shall (Okla.1983). 663 1232 P.2d Except person. third as stated in Rule permitted by law or otherwise ex Bar Assoc. v. Stubble 3. State rel. Oklahoma client, (Okla.1988). lawyer promptly field, deliv- with the 766 P.2d 982
467 relationship par- imposed In we Gasaway, a one-year contends sus ties; involved; pension. the amount of In State ex rel. Bar Oklahoma Moss, money; (Okla. of most of the over- Assoc. v. 794 P.2d return 1990), all circumstances do not warrant that Moss’ improper held of a use suspension. year He admits that he client’s and failure to an preserve rules, technically violated the other sepa have client’s an identifiable violation, punishment should match the rate account warranted a two suspen year suspension. He seeks a one sion.
The Trial Panel
that he be
In
recommended
State
Oklahoma Bar Assoc. v.
years.
for five
In
Schlegel,
(Okla.1991),
cases involv
P.2d 670
ing similar conduct the
ex
discipline
Schlegel
Court disbarred
because:
he
from six-month
tended
disb never maintained an attorney
ac
trust
count;
arment.5
State ex rel.
placed
per
clients’
in a
(Okla.
account;
v. Gasaway,
Assoc.
committed suspension.6 Trial Panel’s However, Sehlegel. must consider Bar by the Asso- alleged the enhancement application to as- Bar submitted prior discipline. ciation because Kessler’s $1,790.62 on June sess costs of are itemized are find that the costs We follow the urges this Court to responsible for Kessler is appropriate. Okla imposed in discipline State costs. assessment of McCurtain, 767 P.2d v. homa Bar Assoc. (Okla.1989). was un SUSPENDED; McCurtain 429 COSTS RESPONDENT legal neglect of a mat der IMPOSED.
ter, disciplined three other he had been
times, another DOOLIN, HARGRAVE, LAVENDER, neglect legal filed complaint SUMMERS, JJ., ALMA WILSON and We found that continued be matter. concur. warranted disbarment. havior Justice, concurring HODGES, Vice Chief attorney who has we are not faced with an part: dissenting part disciplinary problems. pattern current previous discipline occurred elev respondent eigh- suspend the I would ago. ex years en State rel. Oklahoma teen months. (Okla. Geb, P.2d v. Bar Assoc. 1972), found that Geb this Court Justice, SIMMS, concurring part, privately reprimanded two before dissenting part. complaint. current Geb *6 discipline; Í I concur in the required pay costs of the one-year and adopt would the recommendation commingling client action for disciplinary Responsibility Tribunal Professional failing to funds in a remit the period of five suspend respondent for timely fashion. years. record, a de Upon novo review displeased the client was not find that OPALA, C.J., part, concurs dissents of him in the fore- representation part joins expressed views failed to deliver action until Kessler closure SIMMS, J. returned the bank. Kessler check to of the client’s which $300.00 attorney fees. It applied to overdue only his client and after Kessler wrote longer represent him that would no told complaint filed. We find
him that the day a two one disbarred, be read- two ... Rule 11.1 6. Title 5 O.S.1981 through only practice pertinent part: of law mitted following procedures: person whose name has been stricken "A file, (a) triplicate, applicant non-payment Attorneys from the Roll dues, petition with the Clerk of for reinstatement or who of practice Court, Supreme longer ..." of law