*1 Oklahoma, STATE of ex rel. OKLA- ASSOCIATION,
HOMA BAR
Complainant,
v. DOWNING, Respondent.
Dennis
No. SCBD 3374.
Supreme Court Oklahoma.
Oct.
Rehearing Denied Feb. Douglas, Counsel,
John E. Asst. Gen. Ass’n, City, Oklahoma Bar Oklahoma complainant. Whitebrook, Tulsa,
Charles W. for re- spondent.
SUMMERS, Justice.
In this disciplinary proceeding Re- Downing Dennis and the Bar As- stipulated facts, sociation conclusions of law, years’ suspension and four from the practice of Downing law. now that the court disapprove agreed four- year suspension, suggests public that a reprimand or a one-year six-month to sus- pension is appropriate. more We find that proper discipline is that *2 by agreed parties. agreed to the The did The respond. facts not Bar sent two addi- are as follows: by tional certified to letters mail the re- spondent. Again, response. no “When Re- Count I spondent respond any failed of the n respondent employed The received, 1978 to subpoena written notices a probate England. the estate of Allison apearance was issued for his the Okla- at Letters of were not Administration filed Stipulation homa Bar Center.” No. 18. until 1981. From 1978 to 1981 the heirs attempting property were to sell real of the Count III “However, neglect Respondent’s estate. cooperation and lack of with the realtor respondent employed In by 1978 the negated potential and the heirs a sale re- Hazel probate Carothers Thomas to the sulting property remaining in the unsold husband, estate of her late Caroth- Vinnie seriously depreciating and the interim. primary ers. The assets of the estate were Respondent’s complete pro- failure to the a five ap- business and lots. Thomas was despite bate was the fact that his client had pointed administratrix the estate requested Stipulation that he do so.” No. operate and continued to business. the respondent’s actions resulted a However, advice, upon respondent’s the the grievance being filed in and then a respondent all monies handled of the be- private reprimand by the Professional Re- longing to the estate. The of the monies sponsibility Commission in 1985. respondent’s estate deposited were into the receiving private reprimand After the the trust The trust account. account was fre- respondent repre- did not from withdraw 1979-1982, quently during overdrawn senting the estate and client did his not “With trust each overdrawal of the ac- representation. discharge him from such count, had, Respondent should have accord- “However, Respondent continued to ne- ing accounting, positive to his own bal- glect completion probate the of the of the belonging ance of to the estate.” funds Stipulation England.” estate of Allison Stipulation No. respondent No. 8. In 1986 the received a terminating probate letter his for respondent services 1982 the issued trust respondent of the The estate. then refused attorney and account check to another the to communicate with his former check bore the notation “Carothers estate probate refused to forward the file to ei- ys], trust Return loan for account [# ” ther or his client new counsel for the es- 8/12/81, paid taxes at Records of 12%. tate. The retention of the file respondent case show that the upon unpaid was conditioned or contest- never to the Court accounted District grievance ed fee. A second was filed such of the disbursement records against respondent, respondent probate proceeding “do not reflect that Re- refused to to additional paid taxes on of the fact behalf from for the file the new counsel for the anytime estate on or there- 8/12/81 close estate. Counsel for the estate then noti- Stipulation to.” No. 29. fied the of his intent to seek an wrote a on his check compel production order file. purchased adja- trust lots account and two respondent finally delivered file to during cent to the Carothers’ business Upon receipt of the the new counsel. es- of the Carothers estate. re- tate new counsel file the determined that himself, inventory spondent purchased no the estate had been made lots “de- spite him and that no estate tax return had been Mrs. statement to Thomas’ Stipula- filed. purchase she desired to the lots.” tion No. 26. The maintained Count II purchased protect that he the lots to conveyed property estate. He General Counsel for the Bar notified the later grievance. the second He estate. In 1985 Hazel Carothers Thomas dis- been filed and picked her brother up the charged employed oth- probate file from the on Decem- er up counsel to wind the estate. New 19, 1987, delivery ber to Harris. Harris counsel complaint for the estate filed a then hired another complete against respondent demanding *3 probate and an accountant to file the estate accounting records of the estate and an of expended tax return. Harris an additional February the monies. In of 1986 the re- attorney’s fee of $500 accountant’s fee application filed attorney an of $150. fees with the court for his work on the probate of the Carothers' estate. He did Count VI not inform the paid court that he had him- attorney July self fees. In during of 1986 7, 1988, On October the Bar Association deposition respondent represented respondent copy sent to the griev- of a that he attorney had received no fees from by ance filed respon- Laverta Harris. The changed the estate. He represen- later this dent sent a letter to the Bar acknowleding tation in deposition a 1988 and admitted receipt of the Bar’s request- letter and paid that he had attorney’s himself fees ed a days respond few additional to the $7,500.00 totalling by checks drawn on his grievance. respondent did not attorney trust account. In depo- this later resigned but from the Bar and then with- sition he also payment admitted that the resignation. drew his prior was approval without of either the court or administratrix. Discipline September of 1986 the court held a hearing to account for the estate funds and The Bar argues Association that testified that the estate had should not now be allowed $12,182.79 a balance of in his trust account. argue year for a six-month to one sus However, prior hearing one week to the pension stipulating year to a four overdrawn, account was had a balance of suspension before the Respon Professional days prior four hearing, $995.49 to the sibility Tribunal. The cannot
then the balance fell to days a few $495.49 attack the correctness of the hearing. after the facts, State ex rel. Oklahoma Bar Associ Perkins, 825, (Okla.
ation v. 757 P.2d 830 1988), attempt and does not Count V1 to do so. Rather, argues that a different disci employed pline degree is warranted. The of disci the estate of Elmer Hamilton in November pline imposes upon this court of 1986. appointed Laverta Harris was particular misconduct is based on the personal representative of the estate on facts and circumstances of the case. We 23, December subse- in disciplinary proceedings do not function quently filed a Proof of Publication on De- tribunal, reviewing rather, as a but as a 30, 1986, cember and then nothing filed licensing acting court in the exercise of our probate. further in the Laverta Harris of- original jurisdiction.2 exclusive Neither fered to hire an prepare accountant to stipulations parties, of the nor the find estate tax return the respondent but “in- ings professional of responsibility tribu sisted that he could do it himself”. On binding nal are 28, 1987, imposition insofar as the May respondent represented discipline is concerned. The nondelegable, to Harris that the estate tax return ready constitutional sending responsibility regulate and he was it to the Okla- practice ethics, homa Tax Commission. licensure, Harris subse- both the quently determined that no return had practitioners of the of the by Oklahoma, Count IV was dismissed Integration the Bar Associa- In re State Bar 505, tion. (1939). 185 Okl. P.2d 95
1123
solely
O’Brien,
law is
vested in
Court.3
this
Association v.
(Okla.1980); State ex rel. Oklahoma Bar
regularly
compare
We
circum
Foster,
(Okla.
P.2d
previous
stances
those in
disciplinary
with
1969).
proceedings,4
previ
examine a
behavior,5
professional
ous record of
deter
Count III
beginning
describes a
mine
welfare
how best
serve the
of the
discharging
public,6
integrity
consider
years later,
seven
and the client
Bar.7
respon
We have considered the
discovering
the respondent
paid
had
arguments
dent’s
our
decision.
himself
fees out of the estate without
(and
here)
may
put
has
by
into
record
approval
either
the client8 or the
stipulation the facts material to its case. It
*4
probate
filing
application
court.
an
for
is
prejudiced by
allowing
not
our
the re
attorneys
probate,
the
fees
Carother’s
argue
punishment.
for
to
less
respondent did not inform the
that
court
firstWe
address Count I.
It re
previously paid
attorney’s
had
himself
fees
private
veals that the
received a
from the estate. Such
conduct was mis-
reprimand from the
Responsi
Professional
representation
court,
thus,
to
vio-
bility
resulting
Commission. His acts
1-102(A)(4).
lated DR
private reprimand
are
before us
not
for
purpose
determing
of
whether such
The
facts in
III
Count
also
unprofessional,
acts
merely
were
but
show that
commingled
the purpose
enhancing
of
to
9-102(A)
funds. Such conduct
DR
violates
See,
imposed.
be
Rule 6.2 of the Rules
(B). Additionally,
III
Count
shows
Governing Disciplinary
Proceedings.
that when the estate should
had in
have
Count I
shows
after
also
that even
he was
excess of
thousand
twelve
dollars
privately reprimanded
neglect
for his
respondent’s
significantly
trust account a
probate
ignore
he continued to
the estate.
less
actually
amount was
in the account.
respondent stipulated
The
his
conduct Money
applied
of the estate was not
for an
reprimand
after the
neglect
of a
purpose.
estate
Such
violates
conduct
agree.
matter. We
ex
State
rel. Okla
1.4(b)
Governing Discipli-
Rule
of the Rules
homa
Phillips,
Bar Association v.
786
nary Proceedings.
1242,
(Okla.1990).
P.2d
1245
Count V describes a situation wherein
respondent’s
Then
client and new counsel
did not file an Oklahoma
requested
turn
to
over the
return,
estate tax
the client hired additional
ignored
case file. Their
were
un-
counsel and
accountant
file the re-
an
til
that a
advised
court
turn,
expenditure
of an extra $650
forthcoming
compel
order would be
representa-
An attorney’s
their fees.
lawyer’s
release of the file. A
failure to
tion of a
in a
matter should
communicate with clients and refusal
injury
not result in
inquiries
professionally
their
the estate.
is
unethical.
ex rel.
should
State
Oklahoma Bar
an estate
Oklahoma
rel.,
Raskin,
Raskin,
(Okla. 1982),
3. State ex
Okla. Bar Assn. v.
642
642 P.2d
262
262,
(Okla. 1982);
(a
Tweedy
prior
important
P.2d
v. Okla.
record is
unblemished
less
Assn.,
1049,
(Okla.1981).
cases).
misappropriation
Bar
P.2d
624
1052
4. State ex rel. Oklahoma Bar Association v.
6. State ex rel. Oklahoma Bar Association v.
567,
(Okla.1977);
Hensley,
P.2d
569
State ex
560
Booth,
(Okla.1966).
441
405
P.2d
Kessler,
rel. Oklahoma Bar
v.
Association
573
1214,
(Okla.1978).
P.2d
1215
7. State ex rel.
Bar Association v. Ras
Oklahoma
kin, supra,
at n.
In State ex rel. Oklahoma Bar Asociation v.
1361,
Lowe,
(Okla. 1982);
640 P.2d
1362
State ex
Peveto,
rel.
Bar
v.
of an estate without au-
Oklahoma
Association
730
administrator
is
(Okla. 1986);
thority
rel.
P.2d 505
State ex
Oklahoma
to bind
estate for a fixed sum of
Bartlett,
Steger,
probate legal
v.
Bar Association
433 P.2d
fees. Matter
Estate of
see,
(Okla.
1967);
(Okla.1984).
But
State ex rel. Oklahoma
not turn into another Jarndyce and Jarn-
Downing
Id.
lips attorney failed to initiate with whom ALMA a WILSON, J., joins, and was neglected legal concurring part, found to have a matter, dissenting carry part. impose have failed to out a “I con- would employment, year tract of suspension.” have failed to act two diligence representing client, OPALA, V.C.J., concurring in part and keep have failed to a client informed as to dissenting part. imposing “I concur in the status of a matter and professional discipline; I dissent from the information, and to have failed to make imposed. respon sanction I would order reasonable expedite litigation efforts to State, rel., dent disbarred.” ex Okl. Bar consistent with the interests of a client. Raskin, Okl., Ass’n v. Phillips Id. P.2d at 1245. In the attor- [1 982]. ney grievance failed to ato and a subpoena Downing neglect- duces tecum. matter,
ed a professionally failed to HODGES, J., disqualified. clients, communicate with failed to answer
grievances, commingled funds, used a purpose
client’s funds for a other than that funds,
intended for the misrep- and made a
resentation to a court. mitigation submits in
discipline only previous “his private reprimand”
has been a “age and his
and infirmities”. In Phillips attorney previous
had no record of miscon- three-year suspension.
duct and received a chancery many administrator); (court 9. A fictional suit in which lasted tor or § O.S.1981 595 years Dickens, depleted until the costs the estate. C. appropriate report); to issue the order on the (1853). probate pro- Bleak House Our (describing O.S.1981 § 263 the time to settle an require timely cedures administration of estates. going estate which includes a business or enter- generally, (report See 58 O.S.1981 547 § on the prise). year appointment estate one of the execu-