*1 SUMMERS, J., evidence, part by- m testimony concurs which there decisis, and concurs reason of stare Dr. as true. Christiansen’s must taken II. treating Fowl- had been file showed year her than before for more er’s wife HARGRAVE, JJ„ dissent. SIMMS knew of problems and pulmonary death for Mr. Fowler testified oxygen. her need Dr. Christiansen’s he contacted
that when death, the office prior to the just
office Fowler to take his
personnel instructed hospital. Dr. Christiansen the
wife to wife ar- hospital when Fowler’s
not at the direct the failed to Dr. Christiansen rived. rel., STATE of OKLA- oxygen to Fowler’s hospital administer ASSOCIATION, BAR HOMA her at the immediately upon arrival wife Complainant, placed on was not hospital. Fowler’s wife minutes after arriv- at least 45 oxygen for expert testified
al. medical Fowler’s GASAWAY, Respondent. Don E. give “to Effie A. failed Dr. Christiansen No. 3646. SCBD ordinary, reasonable necessary, Fowler the he failed to transmit Supreme when Court of Oklahoma. medical care” oxygen hospital before orders April expert also testi- patient arrived. 3,May As Corrected administering delay fied 6,May Rehearing Denied wife’s oxygen probably caused Fowler’s report showed that autopsy death. oxygen. from lack of wife died
Fowler’s was no direct evidence
While there im-
oxygen been administered would have arrival at
mediately upon Fowler’s wife’s hospital Dr. emergency room oxygen before had ordered
Christiansen arrival, evidence
her there was sufficient Dr. jury could infer that which caused the death of inaction
Christiansen’s all Accepting as true
Fowler’s wife. Fowler, and plaintiff,
evidence favorable therefrom, demurrer
all inferences not have plaintiff’s evidence should
been sustained. granting summary trial court’s order
judgment sustaining the demurrer is is remanded. cause
reversed PREVIOUSLY GRANT-
CERTIORARI
ED. OF APPEALS’ OPINION COURT REVERSED
VACATED. TRIAL COURT
AND REMANDED. CAUSE C.J., LAVENDER,
OPALA,
DOOLIN, ALMA WILSON and
KAUGER, JJ., concur. *2 Counsel, Douglas, E. Asst. General
John Ass’n, City, Bar Oklahoma complainant. Green, Tulsa, respondent.
Robert G. KAUGER, Justice. disciplinary proceeding,
In this the com- (Bar plainant, Oklahoma Bar Association Association), alleges two counts of miscon- by respondent, duct Don E. (Gasaway). The first count relates to the through com- misuse of a client’s funds misapplication mingling and of the monies.1 "(c) representation a 1. Rule Rules of Professional When in the course of 3-A, provides perti- O.S.Supp.1988 lawyer possession property is in in which nent lawyer person and another claim both the interests, "(a) lawyer property kept separate property A shall hold clients shall be lawyer’s possession persons accounting third that is in a lawyer until there is an representation separate with a in connection dispute severance of their interests. If a lawyer’s property. from the own Funds shall interests, concerning respective their arises kept separate in a account maintained in portion dispute kept separate shall be situated, lawyer's state where the office is lawyer dispute until is re- elsewhere with the written consent of the solved. ...” person. property client or third Other shall Governing Disciplinary Proceed- appropriately identified as such and safe- be guarded. 1-A, provides ings, Complete records of such property kept funds and other shall be (b) money property has Where or other "... lawyer preserved period and shall be for a any attorney specific for a been entrusted to years representa- after termination of the five purpose, apply purpose. it to that He he must tion. may of a counterclaim or not avail himself "(b) receiving Upon property funds or other money against any or other setoff for fees person which a client or third has an inter- coming property of his client into his hands est, lawyer promptly notify shall the client specific purpose, for such and a refusal person. Except as stated in this Rule or third money or account for and deliver over such permitted by by agree- law or or otherwise property upon be deemed a demand shall client, lawyer promptly shall ment apply to the reten- conversion. This does not person any deliver to the client or third property otherwise tion of or other property per- that the client third or other and, coming lawyer into the hands of upon request by to receive son is entitled lawyer lien for his person, promptly which the has a valid or third shall ren- the client accounting regarding property. a full services. der satisfy by turning the claim over two the failure involves The second count owing. all the fairly disclose the full amount checks for surround- accept and circumstances relevant facts whether he should client asked *3 We find the grievance.2 the ing Gasaway spoke Rubin with on checks. by clear and con- Association established Gasaway January informed Gasaway commingled vincing that evidence pick up he the Rubin that checks that he failed and client and misused 19th, January from the debtor. Gasa- respond to Bar fairly a com- to and way to confirm had the called Rubin he one-year warrants a plaint. This conduct depositing Gasaway checks and was them. in the sum of costs suspension, imposition deposited the checks to his trust account. $4,657.06, supervision upon rein- and Gasaway expected that he Rubin testified public ac- by lawyer-certified a statement days before approximately to fourteen wait relating the rules to ensure that countant remitting to clear. to allow the checks followed.3 to accounts are trust had a settle- When Rubin not received 10th, by February Gasaway he FACTS ment called and informed that the check would be was duly attorney licensed Gasaway is a day. check did not arrive mailed that Oklahoma Bar Associa- a member of the Gasaway to refused return Rubin’s to attempt collect Rubin’s tion. In an 2nd, Gasaway’s secretary On March calls. claim, Gasaway against filed suit that check had mailed told Rubin the been debtor, All Wheel Drive & Anderson the previous day. finally the Rubin received (debt- Company Tulsa Equipment Gasaway’s checks on trust ac- two drawn Drive), January All Wheel or/Anderson $6,454 on March 15th —one for month, count client That same Rubin’s $22,256.86.4 In interim be- him the debtor wanted one for the called to inform "(c) response grounds shall be for disci- conversion or otherwise of such itself Theft shall, proved, pline a result in ...” funds of ...” disbarment accords the Bar Association’s 3. This result with one-year Professional 2.Rule Rules of be recommendation that a 3-A, provides: O.S.Supp.1988 Ch. imposed on Gas- with reinstatement conditioned meeting away’s monthly lawyer-certified with a bar, applicant to or a "An for admission public to his accountant review trust application lawyer a with bar connection lawyer-certified public accountant records. matter, disciplinary a with or connection Gasaway report would then on whether shall not: complying regulations. with all trust account “(a) knowingly a false statement of ma- make panel sus- The trial six-month fact; terial or pension supervisory and an identical scheme. "(b) necessary to a fact to correct fail disclose fact, Gasaway proposed findings of In his person misapprehension known requested imposed that no be- matter, knowingly fail to have arisen in the 1) 2) proceedings public, and cause: respond to a lawful demand information put expense trial. has been Neither authority, disciplinary from an admissions except acceptable mitigating these factors are require does not disclo- that this rule Gasaway did file a memorandum with factors. protected by sure information otherwise August stating on Rule 1.6.” 1963; practice that he has admitted Governing Disciplinary Proceed- Rule ings, committees; and local served on numerous state 1-A, provides in 5 O.S.1981 pro and that he has been active in bono University for the domestic court and local investigation making preliminary "After students. Tulsa may appropri- General Counsel deem as the ate, General Counsel shall ... file copy was in ... Rubin testified that one the checks serve lawyer, evidently wrong had who shall thereafter make written amount. However, Gasaway response contains a full and fair disclo- which withheld too much costs. immediately per- questioned facts and remitted the amount all the sure of taining circumstances lawyer's alleged respondent pointed mis- it was out to him. Rubin was not once respondent’s do had an exces- unless the refusal to concerned withheld conduct upon expressed predicated fee that more should have been so is constitutional sive misrepresentation grounds. Deliberate remitted. 15th, summary public 2nd and March Rubin done ac tween March certified in getting again had been unsuccessful countant indicate balance in they when Gasaway’s to either take his calls dropped trust account below a the calls. necessary made or return cover were level the check to 25th, January Rubin on and that it did not received deposited the checks Rubin contain sufficient funds to wire transfer by the was informed bank $22,256.86 days until four before the $22,256.86 check for had been re- that the money was wired to Rubin. The records Rubin insufficient funds. imme- turned for also indicate that even if there had not Gasaway and demanded a diately contacted *4 stop payment placed been a order on Gasaway told Rubin cashier’s check. that $14,317.75, for check there have would provide him with a he could not cashier’s in Gasaway’s been insufficient funds trust he not have check because did funds to $22,000 to have allowed a check for purchase He that the one. asserted check paid. appears to have been It also from not clear because another check— Gasaway’s testimony bank records and elic not the one received on Rubin’s behalf of panel Gasaway ited before the trial for client—had been returned insufficient payment not April could have made the on Gasaway Rubin funds. also told that he using 18th without on collected be 29, leaving on was vacation. On March of half another client. informing 1989, Gasaway him Rubin wrote immediately did not if he receive a pretrial A conference was held on Janu- certified check wire transfer 24, ary parties agreed sup- 1990. Both to he would file suit Oklahoma. ply opposing counsel with witness list on Gasaway April wired funds to Rubin panel’s hearing the trial March before on days eighty-nine after Rubin’s 1989— convened, proceedings 1990. When the deposited client’s check had been Gasa- Gasaway objected to the Bar Association’s way’s trust account. calling of not their a witness listed on witness, list. public witness The certified 1, 1989, May grievance filed a Rubin accountant, Gasaway’s had reviewed trust against Gasaway Bar Association. and his bank account records statements. requested the Bar When Association a re panel proceedings trial to allowed grievance, Gasaway provided sponse to the However, when the Associa- continue. Bar copy he had them with a of a letter sent to accountant, panel tion called the the trial indicating the General Association5 Gasaway to proceeding continued the allow that the check to Rubin did not clear his testimony.7 prepare to meet the witness stop payment account because order had $14,317.75.6 Testimony public ac- placed on a check for certified been However, Gasaway’s hearing records countant received at the on bank and a deposited Gasaway’s trust 5.Rubin testified that the General Bar 6. This check was Associa- organization attorneys February tion is an who account on 1989. involved in commercial collections. Both Gasaway orga- are members of the Rubin findings proposed his conclu- In fact and payment When not receive nization. Rubin did sions, Gasaway continued to contend that fashion, of his client’s funds in a testimony public certified accountant the General Bar Association of notified by this fact ground received should not have been on the Gasaway evidently responded letter. to this original not listed on witness complaint. given to the Bar letter Associa- testimony list. Had trial allowed Gasaway tion is the same letter filed with the 20th, Gasaway’s March from this witness on Bar. The not General record does contain a argument surprise would be more convinc- However, Gasaway's copy of letter. there is However, ing. proceedings the continuance of testimony tents, transcript supporting in the its con- gave ample until June time proposed stipulations and in the of fact. deposition take the accountant's or otherwise Although objected stipu- to some of the testimony. prepare to meet his lations, he did not assert that the facts surround- ing the letter to General Bar were inaccu- rate. one-year suspension plus supervi- presented no tes- mends June sion of trust accounts readmission. mitigating show defense timony in his 10, 1990, Gasaway filed a On December hearings. either of at circumstances of time to file his motion extension panel is- the trial On October granted brief. He was an addition- answer findings report with sued its filing. days in which to his al fifteen make law, proposed fact, conclusions in the instant did not file a brief panel found that Gasa- discipline. appli- and has not filed additional cause funds with his commingled client way had He for extensions. also has cations purposes monies used client own and responded to the Bar Association’s motion It also found authorized. than those other January filed tax costs on a full and fair Gasaway failed make concern- Bar Association disclosure by alleging that the THE BAR ESTABLISHED ASSOCIATION
ing
EVI-
BY CLEAR AND CONVINCING
dishonored because
to Rubin was
check
when,
DENCE THAT GASAWAY COMMIN-
stop payment
order
the issuance
*5
CLIENT
GLED AND MISUSED
fact,
have been returned
check would
in
FUNDS, AND THAT HE FAILED TO
had
funds even
there
for insufficient
FULLY AND FAIRLY RESPOND TO
issued. The
stop payment order
been no
A BAR
THIS CON-
COMPLAINT.
minimum sus-
panel recommended a
trial
DUCT WARRANTS A ONE-YEAR
supervision by
and
a
pension
six months
of
SUSPENSION,
OF
IMPOSITION
upon re-
lawyer-certified public accountant
COSTS, AND SUPERVISION UPON
admission.
REINSTATEMENT.
20, 1990, the Bar Associa-
November
support
of
trial
may impose discipline
tion filed its brief
we
Before
findings
opposition
to the
panel’s
attorney,
charges
and
must be
Associa-
discipline.
convincing
The Bar
evid
established
clear and
proposed
disciplinary proceeding,
sanctions
In
tion contends that the
ence.9
a bar
light
discipline
licensing
of
this court as a
court exercises
are too lenient
Therefore,
jurisdiction.
original
similar fact
imposed in
causes with
exclusive
other
are
panel’s
recom- while the trial
recommendations
patterns.8 The Bar Association
however,
client,
money
involving
patterns,
a loss of
to the
war
In
similar fact
cases
imposed
ranging
practice
suspension
from a
Court
an 18-month
from the
has
rants
two-year suspension.
a
State
attorney
prior
six-month to
law for an
without
record
of
of
Moss,
Oklahoma,
misconduct.);
v.
ex
Oklahoma Bar Assoc.
reprimand
rel.
professional
of
(Okla.1990) (Improper use
Oklahoma,
of
794 P.2d
411
ex rel. Oklahoma
Assoc.
State of
money
preserve
and failure to
another
client’s
(Okla.1977) (Com
Hensley,
v.
P.2d
560
569
separate ac
in an identifiable
client’s
mingling
client’s
warrants
of
funds
warranting two-year sus
count is misconduct
pension.);
prior
practice
years,
for two
in absence of
Oklahoma,
State
rel. Oklahoma
Oklahoma,
misconduct.);
of
reprimand
State
of
(Okla.
Brown,
v.
773 P.2d
753
Bar Assoc.
Geb, 494 P.2d
ex rel. Oklahoma Bar Assoc. v.
299,
1989) (Falsely
payable
endorsing check
(Okla.1972)
(Commingling of
301-02
client,
notify
failing
promptly
client of re
failing
promptly
remit
client's funds and
court,
ceipt
previously
affirma
of funds
held
belonging to
warrant 12-month sus
client
concerning
tively misleading
distribution
client
pension.).
funds,
during deposi
lying
of
tion,
and
under oath
suspension, where at
warrant six-month
Governing Disciplinary Pro-
torney
years and
practiced law
15
has
for
ceedings,
provides in
1-A
him.);
against
disciplinary
had
actions
no other
Oklahoma,
Bar Assoc.
State
ex rel. Oklahoma
finding against
respon
(Ne
”... To warrant
Lowe,
(Okla.1982)
v.
640 P.2d
1363
case,
charges
charge
needs,
in a contested
money,
dent
glect
of client’s
misuse of
convincing
by clear and
suspen
must be established
and fabrications told to client warrant
evidence,
at least two of the members
years.);
State
sion from
of law
two
findings."
Oklahoma,
Trial Panel must concur in
Assoc. v.
ex rel. Oklahoma Bar
Oklahoma,
Kessler,
(Wrongful
Bar Assoc.
(Okla.1978)
ex rel. Oklahoma
State
recommendation No. 1. Division upon rein- supervision one-year with ed sup- of costs has payment statement Feb. law.
port under Oklahoma Rehearings Denied March May Certiorari Denied SUSPENDED; COSTS RESPONDENT IMPOSED; UPON SUPERVISION
REINSTATEMENT.
LAVENDER, DOOLIN, HARGRAVE SUMMERS, JJ., concur. C.J.,
OPALA, and dis- concurs imposition today’s concur
sents recede from court’s but *7 unacceptably lenient sanc-
application of
tion; suspend respondent less than 18 months.
law WILSON, J., with whom HODG-
ALMA
ES, V.C.J., concurring joins, impose the six
dissenting I would by the
month sanction as recommended panel. Oklahoma, Oklahoma, ex rel. Oklahoma Bar Assoc. State State ex rel. Oklahoma Oklahoma, supra; Kessler, Moss, supra; see note see v. State note State Okla Assoc. v. Brown, Hensley, see note homa, rel. Bar Assoc. v. v. ex Oklahoma ex rel. Bar Assoc. Oklahoma, supra; supra; ex rel. Oklahoma see note rel. State State supra. supra; note Lowe, see note Bar Assoc. v. see Oklahoma Bar Assoc.