*1 plaint Lynn Anderson, in case SCBD 3486 James K. Counsel, General hereby Douglas, ordered Counsel, Pearson is dismissed. John E. Asst. Gen. Okla- Ass’n,
homa Bar City, for com- plainant. All concur the Justices appearing. not
OPINION WILSON, ALMA Justice:
Respondent lawyer was accused Peti- tioner Bar professional Association of mis- conduct sufficient to warrant Oklahoma, STATE ex rel. OKLA discipline. After notice was mailed to the ASSOCIATION, HOMA BAR respondent, finally process server Complainant, delivered a Complaint to the respondent at his home and talked to the respondent through door, respon- McCURTAIN, Respondent. Loren A. dent has made Complaint no answer to the OBAD Nos. 807. respondent nor did the appear at the hear- SCBD 3438. ing. filing When the time for the of re- spondent’s expired, brief the matter stood Supreme Court of Oklahoma. submitted. Jan. panel The trial found that all of the alle-
gations Complaint set forth in the were fully supported proved by clear and convincing evidence; respondent that the violated the sections of the Disciplinary complaint; Code as set forth in the that no extenuating mitigating circumstances surrounded the behavior of respondent; and that he failed cooper- without excuse to ate with the Oklahoma Bar Association in its of the matters contained in Complaint. panel further found respondent subjected had been prior discipline by Supreme Court of the State of Oklahoma. allegations contained in the com- plaint, panel which the trial found to be fully supported are as follows: That Loren A. currently McCurtain is from the of law in the State of Oklahoma. approximately an Order was entered Supreme Court of Oklahoma in State rel., Oklahoma McCurtain, Association v. Loren A. # suspending SCBD Loren A. McCurtain from the in- (1) definitely, year not less than one from the date of the Order. *2 1987, Johnson, 4, Subsequently, February along informing on an with a letter Respondent obligation to Supreme respond the Court of his Order was entered same, 5.2, pursuant to in to Rules State of of the State of Oklahoma Oklahoma, rel., Asso Governing Disciplinary Proceedings, Oklahoma Bar was McCurtain, Respondent mailed to at ciation v. Loren A. SCBD his then current address, McAlester, Oklahoma, 3338, right roster in suspending # the of Loren A. Complainant. was to A practice in of returned sec- law the State grievance, ond of the until March there the letter
Oklahoma informing Respndent duty of of to re- practice after until reinstated to the his spond, Supreme an Court. was then mailed certified mail to Order of
Respondent’s Addison, Texas, in address but was returned unclaimed. ACTS OF MISCONDUCT 9, 1987, Monday, February Respon- On I COUNT Addison, personally dent was in served 11, 1986, of On Neil V. Johnson Texas, subpoena appear a at the McAlester, Respon- retained give deposi- Oklahoma Bar his Center dent, McCurtain, Loren A. a obtain concerning grievance tion on Febru- paid divorce him $350.00. 18, ary Respondent ap- 1987. failed to 2, 1986, April Respondent filed On a pear deposition. for Petition divorce on behalf of Johnson Respondent’s conduct violates Rule in of Pittsburg the District Court Coun- 5.2, Governing Rules Disciplinary Pro- Thereafter, ty, No. Case 3-86-151. Re- supra, ceedings, grounds constitutes spondent took no further action on be- professional discipline. for in obtaining half of Mr. Johnson his di- vorce, and has refunded none of the III COUNT retainer $350.00 fee. During early Ollie Mae Smith 25,1986, Respondent On June sus- was Respon- and her Carl hired husband pended from for of law a dent the estate of Mr. Smith’s period (1) year by minimum of one sister, Lottie deceased Mae Settles. On Supreme Court. January 29,1981, the Smiths delivered to Respondent never John- informed Mr. Respondent purse Ms. which Settles’ had son that he was from the hospital been removed from the after her law, of steps took nor to with- purse death. The contained in $46.00 draw from Mr. Johnson’s case. cash, band, gold wedding a and other Mr. Johnson’s dis- divorce Petition was miscellaneous items. Pittsburg missed District Court of Respondent On on County disposition a docket on Decem- a Petition for Letters of Administration ber 1986. Settles, In The Matter Lottie Mae In Said Respondent conduct of the vio- Pittsburg District County, Court mandatory provisions lates the DRof P-81-22, seeking appointment of Carl 2-lll(B) 6-101(A)(3), and DR Code as appoint- Smith Administrator. The Responsibility, thereby Professional ment of Carl Smith was contested a grounds constitutes dis- brother, Smith; Harry hearings were cipline. held; depositions were taken. On 3, 1981, Judge J.M. LeMasters en- II
COUNT appointing tered an Order Eula Johnson as Administratrix the Settles’ estate. September 30, 1986, On Neil John- V. 6, 1981, son wrote the July Respondent Oklahoma Bar Association On Loren complaining Respondent’s McCurtain filed a Petition in Error on divorce. Mr. Johnson’s behalf Carl Smith the Oklahoma designated was Supreme DC 86-283. On October commencing appeal Court an 15, 1986, copy a Judge of Mr. appointment LeMasters’ Johnson, 57,081. Appellees Case On after Eula provide response appeal failed to a written filed a Motion Dismiss the grievance, subpoena personally Supreme February, and the Court Addison, on Loren respond served Respondent to not later ordered Texas, requiring appearance Feb- than March ruary at the Oklahoma Bar Supreme Court deposition. Association for a appeal. dismissed the The Court its *3 Respondent appear failed to at the Bar Order of Dismissal stated: date, notify Center on that and failed to appeal is ordered dismissed as ... any the Oklahoma Bar Association of consequence appel- abandoned non-appearance reason for his at said failure to secure com- lant’s unexcused deposition. pletion appeal. Rules of of record 5.2, Said conduct violates Rule Rules Procedure, 1.20(d), Appellate Civil Governing Proceedings, Disciplinary su- 1.26(a). and Rule pra, grounds profes- and constitutes for on March The Court notes that discipline. sional 1982, appellant respond directed to was record, appellees’ motion to dismiss not la- After an examination of the to we 29, 1982, presented clearly ter than March but as of the find that the evidence hereof, supports allegations in appellant wholly date has respond. respondent provi- failed to that the violated the 2-lll(B), 6-101(A)(3), sions of DR DR DR Respondent has failed to return 9-102, Governing and Rule 5.2 of the Rules purse the items contained Ms. Settles’ Proceedings, O.S.1981, Disciplinary ch. him on which were delivered to app. 1-A. 29, 1981. disbarment, only is Mrs. Smith has sent numerous letters issue whether by many telephone and made calls to Re- which was the recommendation the trial spondent’s office, panel, wholly appropriate discipline but he is the to be has neglected imposed upon respondent. Complain- failed and to communicate with support argues her. ant’s brief of disbarment attorney currently that where an under Respondent’s conduct violates DR 6- suspension neglect legal for of client’s mat- 101(A)(3)and DR 9-102 of the Code of ters, cooperate and for failure to Responsibility, thereby Professional him, investigation grievances against grounds constitutes for dis- lawyer should be disbarred where he cipline. repeats by neglecting such behavior client converting proper- by either client COUNT IV it, failing ty by again or to account for 1, 1986, refusing cooperate On October Ollie Mae the Bar Smith to Associa- investigation wrote to the Oklahoma Bar Association tion in of those matters. We complaining inability agree. respon- of her to contact that the record reveals Respondent desig- disciplined by and the was dent has been this Court on 23, 1981, nated DC 86-282. On October three occasions. On June grievance, along publically reprimanded a of Mrs. Smith’s for failure to with- informing Respondent having with a letter of his draw from a case after been dis- obligation respond grievance, charged to said a client and for failure to make complete perti- was mailed to at of all both his and full disclosure McAlester, Oklahoma, address and his nent facts him the district known to where Addison, Texas, attempting address. The letter sent court to determine was who represented to his McAlester address was not re- his former client. On March turned, Addison, respondent suspended but the letter sent to Texas, indefinitely, address for was returned un- of law not [sic] neglect claimed. year, less than one of two him, legal respondent. for They matters entrusted and also be borne are to respond grievances to the his failure paid immediately after this opinion be- filed him. On comes final. was further until March and thereafter until reinstatement C.J., HARGRAVE, OPALA, V.C.J., practice of the order of this Court JJ., SIMMS, and LAVENDER and matter, making of a for concur. representations false concerning alleged attempt Association an DOOLIN, SUMMERS, KAUGER client, to return the fee to his and for JJ., dissent. failing cooperate HODGES, J., participating. not client. respondent apparently As the has made KAUGER, Justice, with whom attempt no change behavior to DOOLIN, Justice, SUMMERS, cooperate with the Bar Association in the Justice, join, dissenting. *4 him, grievances reviewing After the last three bar disci- finds Court that disbarment is the plinary proceedings involving Loren A. See proper discipline impose. State McCurtain,1 Peveto, appears it they rel. Ass’n me that Oklahoma Bar 730 saga should be a continuing reviewed as (Okla.1986). P.2d 505 Accordingly, we or- personal law, incapacity der Loren and that A. disbarred that the pro- and his name from cause should be stricken the roll of remanded attorneys. proceedings ceedings the 1, 1-A, costs of under App. 5 O.S.1981 Ch. discipline the in the amount of shall 10.2 $706.71 1. CHRONOLOGY proceeding; repay two produce clients and a writ- 8,May Larry griev- 1984 Butler filed a signed by ten certificate with ance the Bar. members of a committee of lawyers 14, May 1984 A letter was sent to McCur- pos- that McCurtain advising tain grievance. him of the profession- sesses sufficient response. No knowledge skills al 23, May 1984 Dr. Robert Jones filed a competently represent his grievance with the Bar. clients. 31, 1984 A letter was sent to McCur- 8,May complaint 1986 The second is advising tain the him of filed the Bar. grievance. response. No 30,1986 September griev- Neil Johnson filed a 8, June 1984 J.C. Pratt filed a ance with the Bar. with the Bar. 1, October 1986 Ollie Smith filed a 15, 1984 A letter was sent to McCur- the with Bar. advising tain him of 15, October 1986 A letter is sent to McCurtain grievance. response. No advising griev- him of both 20, complaint November 1984 First with response. ances. No this Court. 14, opinion 1987 The second is hand- 16, griev- October 1985 Alfred Wilson filed a ed down this Court and with the Bar. ance McCurtain is un- November 1985 A letter was sent to McCur- March til 1989 advising tain him of required same conditions grievance. opinion. the first acknowledges November 1985 McCurtain July 1987 Bar files the receipt of the asks letter and with this Court. for additional time to re- 1-A, App. 5 Title spond. O.S.1981 Ch. Rule 10 provides: grants December 1985 time. additional 'personally incapable McCurtain never filed a re- practicing "The term sponse. law' shall include: (a) Suffering This Court hands down the physical from mental or ill- opinion first in which person ness of such character as to render the himself, suspended for incapable managing McCurtain is afflicted year. precondi- one As integri- affairs or the affairs others with the ty competence tion to he requisite reinstatement proper pay law; must costs of (2) Repay his I clients with interest.
COMPLAINT (3) competent Receive treatment complaint filed on November The first professionals mental health who have only one which McCur- complete been furnished with a tran- and offered evidence to appeared tain script proceedings of the Tribunal’s discipline. alleged The Bar that mitigate provide an evaluation from those treat- neglected two ing professionals to the Professional Re- to file failing initiate a matter or Tribunal, sponsibility prior to the termi- case. wrongful in a termination a lawsuit suspension, to the effect nation hearing McCur- At the capable performing that first served McCurtain is testified that when he was tain Bar, professional responsibilities in Pitts- in a trying a case con- ' Court; County sistently competent trustworthy that he had burg District pro- disciplinary the notice of tried to block manner. mind; did not ceedings out of his and that (4) Responsibili- Furnish the Professional charges until he contacted a law- read the ty Tribunal a written certificate He stated that
yer represent him. also signed by members of a committee of antidepressants treated had been lawyers appointed by Pittsburg years fifteen and that after his for at least Association, County Bar in their him in he became anx- wife divorced opinion, respondent possesses, at the crying spells, low ious and suffered from suspension time is re- termination level, ability energy to concen- decreased quested, sufficient skills and trate, feelings inadequacy, feelings of represent knowledge competently overwhelmed, guilt regarding his being *5 affairs of his clients. family. divorce and objected the Bar nor Neither McCurtain August McCurtain admitted However, suggested conditions. condi- Community himself to Carl Albert Mental (3) concerning by competent tion treatment thought he Health Center because he professionals health was not includ- mental losing suffering his mind and a nervous March 1986 ed either this Court’s being Sep- After released on breakdown. opinion. 1987 opinion or the psychiatric tember he continued II COMPLAINT treatment until he found that the cost was prohibitive average yearly in- based on his neglect complaint involving The second $14,000 $17,000. come of McCurtain’s legal 1986. of a matter was personal psychiatrist reported to the retained to foreclose McCurtain had been that, after McCurtain was dismissed mortgage. on a After he failed to file clinic, inpatient and in he was coherent court, mortgaged petition in the trial However, reality. touch with When McCurtain house was tom down. testified that he did not discuss with taken, he appeared deposition for his to be any problems doctor hav- or doubts was representa- to either continue his offered ing in his life. client or to return the client’s tion of the McCur- panel attorney
The trial determined that fees. documents and to refund It year. tain should for one documents The client elected to have the meet the fol- recommended that McCurtain attorney fees refunded. returned and the lowing either, conditions before reinstatement failed to do Feb- practice: active suspended until ruary (1)Pay proceedings. the costs of the sedatives, (b) mentally neglect gens, drugs, or repeated or other Active misfeasance or client, duty respect physically disabling any
of to the affairs of a substances of charac- pending whether in matters a tribunal before any impairs extent or ter whatsoever to which constituting or in other matters efficiently impair ability to conduct tends to law; or properly for a the affairs undertaken (c) beverages Habitual use of alcoholic practice of client in the law.” content, liquids alcoholic hallucino- III COMPLAINT complaint neglect
The third also involved legal peti- matters. McCurtain filed a action, tion for divorce but took no further personal nor did he return some items of a Although decedent in a action. bring Bar did not under 5 1-A, App. O.S.1981 Ch. Rule McCur- attorney, admittedly tain’s unfamiliar with disciplinary attempted bar to show neglect that his client’s was because of his incapacity. mental
CONCLUSION (a) (b) Subsection Rule 10 which “personally incapable define practicing including law” as physical mental or ill- ness, pattern repeated neglect or a applicable matters Repeated here. duty respect to the affairs of coupled a client appearance with the physical mental and readily appar- illness is proceeding ent. This should be remanded for Rule proceedings.
Gary MIDDAUGH, Appellant, L. Appellee. STATE of
No. F-85-356. Court of Appeals Criminal of Oklahoma.
Dec.