*1 434 others, 30, explicitly prohibits provisions of all regulate pro-
exclusion of § any part permanent of of a ceedings against commutation employers only, are short, disability adjudication. clearly contrary total to those in 172. The § controlling statutory norm our law against former are hence unavailable of periodic all interdicts acceleration spe- Fund. The latter enactment—one of of payments due the Fund application cial to the Fund —controls over from for satisfac- permanent disability. former, total general which is and invocable of only against employers affected of covered Liability Special Indemnity Fund is workers. derivative, separate self-containing.3 Indeed, the Fund was established as a judge’s I would vacate the trial commuta- supplementary scheme of benefits peri- tion order and direct that the award’s regime governs em- compensation adapted odic schedule be to satis- obligation is con- ployers. The Fund’s fy portion. the counsel-fee provisions by free-standing trolled that are amendatory compen- workers’ They modify
sation law.4 do not benefits employers, against
awardable but rath- employer
er shift—from the last only liability which is attributa- Fund — permanent to the worker’s “increased”
ble disability.5 Oklahoma, rel., STATE of ex OKLA Compensation The Workers’ is a Court ASSOCIATION, HOMA BAR creation; legislative tribunal of its authori- Complainant, payments adjudicated to accelerate v. nay, any judicial pow- to exercise benefits— MISKOVSKY, III, Respondent. Frank completely dependent upon er—is statu- tory legisla- sources.6 In the absence of a SCBD No. 3571. expressly impliedly that either tive norm Supreme Court of Oklahoma. requisite authority confers it the act, utterly powerless. court is 30, Oct. 1990. provision It like is hornbook law Application Rehearing Denied primary pur- 172—one enacted for the § 11, Feb. 1991. pose dealing particular, narrow with leg- subject any general control over —will islation—such as embodied though may 30—even the latter contain
§
language enough to serve broad legal specific if
applicable norm the more had not in force.7 The terms
statute been 172 do not authorize counsel-fee § liability of the Fund’s that is
commutation dispute. general
here in
commutation
Franks,
Davidson,
143,
Special Indemnity
Fund v.
3. Cameron & Henderson v.
6.
199 Okl.
196 Okl.
965,
(1947);
Special
118,
1016,
Levi v.
(1945).
P.2d
970-971
184
162 P.2d
1018
Fund,
Okl.,
620,
Indemnity
389 P.2d
622
Fund,
Okl.,
Reynolds Special
v.
Indem.
Stith,
625,
614,
Parks v.
204 Okl.
232
7.
P.2d
(1986).
(1951) (the
¶2);
State
syllabus
court's
614-615
O’Bannon,
v.
Okl.
John E. Counsel, Asst. General Ass’n, Oklahoma Bar City, Oklahoma for Moore, Hammons, Robert P. Mark Ham- mons, Taylor, Gee, Moore & Oklahoma City, respondent. for SIMMS, Justice.
Respondent, III, Miskovsky, Frank subject of a complaint formal filed Association, the Oklahoma Bar which al- leged that he committed several acts viola- tive of the Code of Responsi- Professional (Code), bility O.S.1981, 1, 3, App. Ch. and Governing the Rules Disciplinary Proceed- ings (Rules), O.S.1981, 1, App. Ch. 1-A.1 Miskovsky responded allegations, hearing and a was held before the Profes- sional Responsibility Tribunal which filed report its containing findings of fact and conclusions of law.
We have reviewed the entire record only which included not testimony ex- tribunal, hibits offered before the but the transcript of a hearing district court con- cerning a divorce action in which Miskov- sky was allegations defense All counsel. complaint stem from Miskovsky’s conduct in the district Having court case. conducted a de novo examination of the record, entire Rules, see Rule 6.15 of the supra, and State ex rel. Oklahoma Bar Cantrell, Okl., Association v. (1987), we find and conclude respondent’s misconduct warrants a suspension of three public months and a reprimand. Each count is sepa- addressed rately below.
COUNT I complaint alleges first that re spondent, counsel for Don Cornelius action, given divorce a check for $7,663.00 opposing which he and counsel allegedly adopted The acts committed O.S.Supp.1988, March 1988. See: 5 prior occurred to the effective date of the new App. Ch. 3-A. Oklahoma Rules of Professional Conduct By convincing evidence that Miskov- hold in trust. order were to court, sky misappropriated was set aside for we dismiss district preserving an oil expend Cornelius this count. to be can- gas lease which was about order, Mrs. Corne- According to the
celed.
II
COUNT
in the oil
convey her interest
lius
.was
testified that he entrusted sev-
Cornelius
lease,
portion of the Cornelius’
gas
items, including eight
eral
one-hundred dol-
$7,663.00
property,
marital
as well as
bills,
safekeeping.
lar
relin-
exchange
for Cornelius
Testimony
arid his son indi-
from Cornelius
$80,000.00
rights
worth of
quishing his
requested
the return
cated
parties thought
her. Both
bonds to
and his son received all the
of the items
asset,
receiving
yet
a valuable
*4
property except the
cash from re-
$800.00
preserve the
expended
never
to
funds were
spondent
allegedly promised
who
to return
due to Mrs. Cornelius’s refusal
lease
safety deposit
got
it as soon as he
it from a
to Mr.
deed her share of the lease
Corneli-
requests
box. Several
were made for the
result,
lost, and all
us. As a
the lease was
cash,
Respon-
returned.
yet it was never
$7,663.00.
the
that remained was
kept
he
the cash in a
dent testified that
funds were
Complainant alleges that the
place
applied
at home and then
it
safe
interest which Cor-
part
not a
of the lease
bill.
towards Cornelius’s
the court order did
nelius received because
the
The record demonstrates that
provide for
to retain the
“paid”
items
cash and other
expend them.
funds in the event he did not
rather,
respondent,
were left
his
but
the funds were
Respondent contends that
Thus,
safekeeping.
possession for
the
preserving
proper-
the
Cornelius’s to use
9-102(A)
require a
strictures of DR
which
lost,
interest,
the interest was
and since
place
paid
funds
to him in an
lawyer to
he
spend
money
the
however
he could
apply.
account do not
How
identifiable
testimony
special dis-
The
of the
wished.
ever,
9-102(B)
respon
apply,
DR
does
the order in the
judge
trict
who issued
provision
violation of this
warrants
dent’s
respondent’s in-
divorce action contradicts
discipline.
Testimony
order.
terpretation of the
contra-
opposing counsel in the case neither
(3)
through
of DR
Subsections
respondent’s position as
dicts nor confirms
9-102(B)
notify
lawyer
shall
a
state that
Regardless,
of the funds.
to the nature
funds, securities
receipt
of his
client
considered the
respondent and Cornelius
in a
properties, put
properties
the
or other
the
of Cornelius
funds to be
deposit
place of safe
safety
box or “other
he wished.
spend as
records,
complete
keeping,” maintain
his client
appropriate accounts to
he discussed
render
Respondent testified that
lawyer must
agreed
regarding
properties.
the
client who
the funds with his
pay or deliver to the
attorney
“[pjromptly
further
applied towards his
have them
by a client the
requested
respondent claims was
client
which
fees bill
securities,
properties
posses
in the
or other
$15,000.00.
denied that
around
lawyer
the client is enti
apply
sion of the
which
Miskovsky permission to
the
gave
he
DR.9-102(B)(4). Refusal
tled to receive.”
money
his bill.
cash,
property,
including
to deliver
6,12
Governing Disci
of the Rules
Rule
request is a viola
upon the client’s
client
requires the
Proceedings, supra,
plinary
client is enti
where that
tion of
9-102
charge
the
or
complainant
to establish
property.
the
tled to receive
convincing evidence.
charges by agreed
Respondent claims that Cornelius
Bar Associa
rel.
State ex
Oklahoma
See:
his bill
applied towards
Braswell, Okl.,
1232 to have the $800.00
663 P.2d
v.
asked re-
in another case which Cornelius
Bar Asso
ex rel. Oklahoma
State
However, application
spondent to initiate.
McMillian,
ciation v.
bill does
towards Cornelius’s
of the funds
(1982). Having failed to establish
Miskovsky
not overshadow the fact that
Cornelius demanded the return
upon
cash,
to return
cash
refused
demand. of
eventually
acquiesced
kept
These
were not
a trust ac-
respondents
use of them
them
treating
$7,663.00,
like
count
nor were
as having
applied
been
towards his bill.
specifically related to a cause of action to Regardless
acquiescence,
of this
the mis-
funds could be attributed. The
conduct
conversion
deemed a
property,
including
items
$800.00 occurred.
cash,
respondent’s possession
were in
Having found a violation DRof
safekeeping,
upon demand
returnable
made
9-102(B)
1.4(b),
and Rule
we must next
rightful owner,
by the
Cornelius. Miskov-
pur
assess a
sanction.
note that the
sky
by refusing
violated DR 9-102
to re-
pose of a disciplinary proceeding
not to
turn
cash
demand.
punish the lawyer. State ex rel. Okla
reasons,
For similar
we find that
Raskin, Okl.,
homa Bar
Association
1.4(b)
Rule
violated
(1982). Rather,
P.2d
“to
it is
states:
inquire into his continued fitness
awith
“Where
other property
has
safeguarding
view to
interest of
any attorney
been entrusted to
for a public,
legal
profession.”
courts and the
specific purpose,
apply
he must
it to that
*5
cases,
Id.
some
we have found that
purpose.
may
He
avail
not
himself of a
misappropriation
of
along
clients’
against
counterclaim or setoff for fees
misconduct,
with other
warranted disbar
money
property
or other
of his client
Raskin, supra;
ment. See:
rel.
State ex
coming
specific
into his
for such
hands
Smith, Okl.,
Oklahoma Bar Association v.
purpose, and a
refusal
account for and
pose, of his bill. final sen- 1.4(b) of Rule tence which concerns the Throughout proceedings, the re money property retention of or which spondent supported his claims was that it lawyer has a lien apply the valid does not proper apply for him money the towards respondent herein because did not have a outstanding by asserting Cornelius’s bill lien on the of valid Cornelius. attorney’s that an lien was filed in the Respondent argues that it was not con- divorce action. Evidence from the Okla because he not wrongfully County version did homa take District Court Clerk’s office funds which due and owing respondent’s the as well as admission showed him, respondent and because Cornelius “Atty credited the that hand-wrote lien respondent. pleading sum owed to claimed” and “F.M.” on a Con- filed version, states, as the rule the pleading “deemed” divorce action after the lawyer applies money to a purpose when been filed and microfilmed Thus, purpose designation other than the for which the court clerk. of an lawyer. Complain- attorney pleading were entrusted to the lien added onto Therefore, proved possession in the ant that this occurred. the court clerk it of after find, panel, as did trial filed in we con- was his office. one mem place. of respondent version the funds took ber of the noted that tribunal easily attor- separate have drafted a izes the statement as “sloppiness could fram- case, response re- ing identifying lien form and filed it in the his and in ney is- explanation why he spondent gave no as to sues with which Bar was concerned.” not use this method. did improbable it attorney We find that an experience who complaint receives a O.S.1981, provide Title 461 and 462 §§ undoubtedly could affect whether con- punishment any person for criminal practicing law “sloppy” tinues would be guilty altering any records of a who is However-, responding to the complaint. al- that justice. Respondent admits court though appears respondent it did not filed. he altered the document after it was response “make a written contains a actions, his that he In defense of he asserts full and fair disclosure of all the facts and attorney adding know that his lien did not pertaining respondent circumstances was unlawful and that he had no later alleged misconduct,” lawyer’s we find that Respon- in adding intent the lien. criminal complainant did prove by has not been convicted of a criminal dent convincing evidence that delib- act, although we find that misrepresented timing erately conduct, engaged questionable such con- lien to Rule 5.2 of the See: turpitude.” duct did not involve “moral expressly Rules. Rule 5.2 makes 1-102(A)(3). “[d]eli- DR See: misrepresentation response” berate in such agree panel that do not with the trial discipline. finding grounds for Absent a 1-102(A)(4) this action violated DR concern- deliberate, misrepresentation that the “dishonesty, ing conduct which involves disciplinable misconduct a conclusion fraud, deceit, misrepresentation.” Com- is unwarranted. The evidence occurred failed to such a violation plainant establish also fails to establish a violation of the convincing evidence. Rule clear 1-102(A)(4) involving on ban “conduct dis- *6 6.12, Braswell, supra; supra. fraud, deceit, honesty, misrepresenta- agree All involved that the client clearly The evidence did not and tion.” filing of the prejudiced the late convincingly prove intend- However, conclude, we did the lien. 6.12; ed to mislead Rule panel, “preju that the trial conduct Braswell, supra. justice,” dicial to the administration Attorneys complaints from who receive 1-102(A)(5), repri public and warrants a urged study to the Bar Association are one at mand. Justice is served when carefully allegations respond fully, ac- and acquire money by tempts priority to curately, truthfully to avoid further and filing typically lien ma when this lawful being allegations of ethical violations illegal is done in an manner. neuver against them. lodged COUNT IV COUNT V responding complaint’s During the course of the tribunal III, Miskovsky regarding allegations Count pos hearing, evidence came forward stated: prohibited Miskov- sible conflict interest began representing Don “I Cornelius exercising judgment sky independent from cross-peti- I filed an answer and 1985. proper marital attempting reacquire behalf, lien, claiming on on his bonds, $80,000.00 ty, the worth 24, 1985.” December exchanged had for the afore $7,663.00. gas admits that this statement mentioned oil lease Respondent applied Miskovsky to assert the lien was claimed when Since seems bill, filed, whereas, a successful he testi- toward Cornelius’s pleading was very prob filing after would that he added lien claim redistribution fied However, reallocation of the funds ably asserts that include it. Miskovsky considered his as Complainant to be did not intend mislead rendered. hired sub- Miskovsky character- for services this statement. with sequent counsel who convinced the trial court that redistribution of the assets was Peggy COLLINS, Petitioner, Jo equitable light complete loss of gas the oil and lease. The pur- conflict in SERVICES, HALLIBURTON Own Risk suing the Yet, redistribution is evident. Compensation and The Workers’ complainant bring charges did not for this Court, Respondents.
apparent interest, conflict of nor did com- No, plainant argue discipline in its brief to 71474. this Court. Supreme Court of Oklahoma. tribunal, which first noted the con- Oct. 1990.
flict, punishment declined to recommend complainant recognize it, Rehearing because failed to Denied Feb.
allege it, put respondent on notice of it
so that he allegation could defend such an hearing
in his before the tribunal. We
agree with this apparent treatment of the
violation. disciplinable it is mis-
conduct, 7-101(A) 5-101(A), see DR and DR
it would be fundamentally require unfair to
respondent to defend conduct of which he put
was first hearing. on notice at the
decline to find a violation or assess disci-
pline for alleged this misconduct.
WE HEREBY ORDER AND DECREE Respondent suspended be from the
practice of period law for a of three Additionally, respondent
months. public-
ly reprimanded for misconduct set out in Respondent III.
Count is further ordered pay proceedings costs of the within Thir- Days of the opinion date that this
becomes final.
HARGRAVE, C.J., LAVENDER,
SIMMS, DOOLIN, KAUGER and
SUMMERS, JJ., concur.
HODGES, J., concurring in part,
dissenting part: I concur in part opinion gives Respondent
public reprimand. I dissent from the
imposition suspension. of a three month
WILSON, J., part, concurs in dissents HODGES, part joins J. ALA, V.C.J.,
OP participating.