*1 judg entry of upon its founded were interest is declared judgment Because ex rel. OKLAHOMA
ment. of Oklahoma STATE decision, post-judgment those ASSOCIATION, Complainant, today's void BAR void declared likewise are decisions v. not be ad will decisions those merits Respondent. WHITEBOOK, Merl Alan "A states: rule long-standing A dressed. effect, judg is, no judgment void No. SCBD upon it founded proceedings [All ment.... of Oklahoma. Supreme Court it, all under performed ... acts [alll it, absolutely void." are flowing out claims 12, 2010. Oct. ¶ Joines, 50 Okla. Arnold 150P. CONCLUSION issues review This Court's no error parties demonstrates by the
raised However, Retirees' this cause. the trial of the evidence present
failure to facially judgment renders
section post-judg- court's the trial together with
void attorney concerning determinations
ment jury's interest. prejudgment
fees and hand, unaffect- remains
verdict, other on the matter is remanded errors.
ed these proceedings for further trial court actual proof the District's establish
would year in which the fiscal
indebtedness compliance with see- is rendered
judgment of Retirees' consideration and for
tion 862 prejudgment attorney fees
request
interest. GRANT PREVIOUSLY
CERTIORARI CIV-
ED; THE OF OF COURT OPINION VACATED; TRIAL COURT
IL APPEALS VACATED; RE- CAUSE
JUDGMENT INSTRUCTIONS. WITH
MANDED EDMONDSON, C.J.;
CONCUR: COLBERT, REIF, WATT,
OPALA, JJ. V.C.J.; TAYLOR, DISSENT: WINCHESTER, KAUGER,
HARGRAVE,
IJJ. *2 Rossier,
Ted D. Counsel, Assistant General Oklahoma City, Oklahoma, for Complainant. TAYLOR,V.C.J.
1 The Oklahoma Bar (OBA), Association filed a against attorney Merl Alan (Whitebook). alleges The OBA four counts that Whitebook violated the Oklahoma Rules Conduct, of Professional 0.$.2001, 1, app. (ORPC), ch. 3-A and the Oklahoma Rules Governing Disciplinary Pro- ceedings, 0.9$.2001, 1, (RGDP). app. ch. 1-A Whitebook did not file an answer by rule 6.4 of the RGDP. substi- forced to retain client was T5 The T2 On October completed counsel, probate (PRT), tute conducted Tribunal ad- at considerable about November appear. failed to
hearing. Whitebook family. hardship on the no- expense had received ditional that Whitebook found PRT *3 unearned the has not refunded the Whitebook him, and that charges tice of the retainer. portion based admitted deemed were charges com- to the respond failure Whitebook's that White- PRT recommended The
plaint. II IH. COUNT of law from the book day and ordered years and one for two following in count alleges the T6 The OBA proceeding. disciplinary the costs of pay 2008, the 9, July a complaint. About two probate to handle Whitebook
client hired an paid $800.00 Whitebook an estate REVIEW OF I. STANDARD 2009, 9, Whi- As of November fee. retainer the any action on take had failed to tebook proceedings, disciplinary In bar 13 attempts multiple made The client constitutional, probate. non- its Court exercises communicating with Whitebook at regulate the delegable power 8, April time Some rel. were unsuccessful. ex State practitioners. law and White- 2009, 53, ¶15, client communicated Bolton, the Ass'n v. Okla. not feel- he was indicated Whitebook book. decides 339, Court 344. P.2d 880 as soon get probate to the and, so, would ing well but if has occurred misconduct whether per- still failed possible. Whitebook imposed. to be appropriate the The client the client. Todd, any services for form Ass'n v. rel. Okla. ex State 260, ¶ the retain- The burden refund 81, 2, requested that Whitebook 261. OK so. fee, failed to do has but Whitebook er clear-and-convincing evidence. is proof Rogers, 2006 Bar Ass'n rel. Okla. ex State 428, de In our 4382. 142 P.3d OK AND IV III IV. COUNTS by the review, not bound this Court nmovo fact, of the evi its view findings of PRT"s three, alleges the the OBA count T7 In witnesses, credibility of dence, view of its 2008, July the OBA following facts. On Todd, discipline. or its recommendations in client from the grievance received ¶ 2, at 261. at 1992OK 81 sent July the OBA one. On count griev him of the advising a letter
Whitebook
respond to
that he
requesting
ance
I
II. COUNT
Having
days.
twenty
allegations within
Whitebook,
response from
failed to receive
in
followingfacts
alleges the
T4 The OBA
by certified
a letter
sent Whitebook
the OBA
About June
complaint.
one of the
count
18, 2008, asking
Whitebook
August
mail on
handle
Whitebook
retained
a client
signed
days.
five
Whitebook
respond within
paid
Whitebook
estate
of an
probate
August
letter on
certified
for the
ini
Whitebook
$1,000.00
fee.
as a retainer
Re
The Professional
respond.
did not
but
but
the case
work on
some
tially performed
subpoena
issued
Commission
sponsibility
time in October
some
work
further
ceased
investiga
an
appearance at
contact Whi-
attempted to
tecum
client
duces
2007.1
at the
appeared
deposition. Whitebook
tive
or two occa
one
multiple times. On
tebook
2, 2008,
failed to
October
hearing held on
communicated
the client
when
sions
failure to
for his
adequate reason
an
complete
give
promised
vaguely
he
investigation.2
the OBA's
respond to
probate.
that he
admitted
deposition, Whitebook
2.
In the
that he
testified
deposition, Whitebook
In a
1.
January
"pan-
he
least until
the OBA but
from
on the case
the letters
worked
received
deposition
icked,"
up"
he received
when
questions in
froze
OBA's
"[Jlust
in March
fired Whitebook
the client
indicate that
them.
counsel.
other
and retained
of 2008
four,
InT8
count
alleged
the OBA
allegations
to be admitted.
though
following
January 12, 2009,
Even
facts. On
copy
was mailed to White-
book,
he did
client
count two
respond
not
filed a
to the motion.
(TCBA).
County
Tulsa
Bar Association
Be-
11 On October
the PRT held a
cause
respond
Whitebook did not
hearing and took evidence. Whitebook did
request
information,
TCBA's
griev-
appear.
though
Even
the motion to
ance was forwarded to the OBA which
deem
allegations
to be
opened
investigation
a formal
April
yet
admitted had
to be filed in
Supreme
office,
Court clerk's
the PRT had the motion
May
T9 On
before it at
the OBA mailed Whi-
hearing
and considered the
*4
tebook a letter asking
respond
to the motion. At
him to
hearing,
the
the PRT accepted
twenty days.
within
When White-
documents into evidence and heard the testi-
respond,
book failed to
the OBA sent
mony
White-
of the
investigator.
OBA's
The investi-
22,
book a
May
certified letter on
gator's
2009.
testimony
only
concerned
counts
Whitebook
sign
did not
for the certified let-
three and four.
and,
July 6, 2009,
ter
on
personally
1 12 The PRT
report
filed its
on November
subpoena
served with a
appear
for an
13, 2009, in which it accepted the motion to
investigative deposition
July
on
allegations
deem the
admitted.
It also found
appear
Whitebook did
deposition.
at the
properly
Whitebook had
been served
July
On
Whitebook called the OBA with notice but
wholly
had
failed to respond.
and
message
left a
Denver,
that he
inwas
Lastly,
the PRT recommended that White-
Colorado, and had
subpoena
received the
on
book
from
the
of for
July 8. The
investigator
OBA's
tried unsue-
years
two
day
and one
and
pay
ordered to
cessfully to return the call. Contradicting
the costs of the proceeding.
Whitebook's statement
that he was served on
[
13, 2009,
13 On November
the OBA filed
July
process
the
server's affidavit shows
application
its
assess costs
White-
that Whitebook was personally served at 9:25
$1,226.51.
book in the amount of
On Novem-
pm.
6, 2009,
July
on
Bartlesville,
Okla-
20, 2009,
ber
this Court filed
briefing
homa.
July
On
the OBA's investi-
schedule with the
being
OBA's brief
due on
gator sent Whitebook an email informing him
4, 2009,
December
Whitebook's brief due
that he was "still obligated
subpoe-
under our
within
days thereafter,
fifteen
and the OBA's
na" and that he needed to contact her as
reply brief
days
due ten
after Whitebook's
possible.
soon as
was filed.
V.
ADDITIONAL
FACTS
14 The OBA filed
its brief
on December
brief,
Whitebook did not file a
and
¶ 10 The OBA filed
complaint
the
in this
the OBA
filing
waived
reply
brief.
In its
proceeding and
copy
was mailed to White-
brief, the OBA asserts that there is sufficient
mail,
book
certified
return receipt
re
evidence for
review,
this Court's de novo
quested and
delivery,
restricted
to his official
Whitebook had sufficient notice
satisfy
due
OBA roster
address on September
process requirements,
that the PRT properly
receipt
return
shows that Whitebook
sustained the OBA's motion to deem the
signed for
the
pm.
4:86
on
allegations admitted, and that
the OBA
September 10, 2009. Whitebook did not file
proved
Whitebook's misconduct
clear and
a response to
complaint.
the
The certificate
convincing evidence
supported
and
its recom-
shows,
of mailing
September 10, 2009,
the
mendation of suspension
years
of two
and
OBA sent
copy
Whitebook a
of the notice
day
authority
argument.
and
that the hearing before the PRT was set for
9:30 a.m.
on October
at the OBA
VI. ANALYSIS
room in
City,
Okla
conference
homa. Whitebook did not appear at
lawyer
15 When a
fails to
an answer
file
hearing held on the set date. On November
complaint,
as Whitebook has failed to
9, 2009, the OBA filed a
do,
motion to deem the
charges
factual
are
following
("In
support
rule 6.4
mitted under
rule 6.4
RGDP
admitted.
deemed
(1)
provide
failed
findings:
Whitebook
answer,
respondent
fails
event
of these
to both
competent
representation
admitted, except
be deemed
charges shall
ORPC;
by rule 1.1 of the
required
clients as
pur-
be submitted
shall
that evidence
(2)
diligence in
failed to act
Whitebook
im-
discipline to be
determining the
pose of
required by
clients as
representing
these
to meet
the OBA
Rule 6.4 allows
posed.").
(8)
ORPC;
failed
rule 1.3 of
in-
unnecessarily
proof without
its burden
reasonably inform and
keep
these clients
proceedings.
of the
creasing the cost
reasonable
comply with
promptly
failed to
two,
{16
the OBA
one and
As to counts
by rule
required
information
requests for
1.1,3
rules
has violated
alleges Whitebook
(4)
1.4(a)(8)
(4)
ORPC; and White-
(c),
8.4(a),
1.5,61.15,71.16,8
1.4,5
1.3,4and
charge the client referenced
failed to
book
(d)
rule 1.3 of
ORPC and
fee as
two a reasonable
count
four, three and
to counts
As
RGDP.9
ORPC,
allegations in
but the
rule 1.5 of
rules
has violated
alleges Whitebook
OBA
failed
that Whitebook
do not show
count one
(c)
8.4(a)
8.1(b)
of the ORPC
in the amount of
services
provide
11of the RGDP.
5.2
1.3and
rules
retainer fee.12
*5
{18
allegations that
next the
{17
and
address
in counts one
We
alleged
The facts
1.16 of the
rules 1.15 and
violated
ad Whitebook
are deemed
complaint which
two of
refunding any advance
and
is entitled
provides:
client
the ORPC
Rule 1.1 of
expenses that has not been
fee or
payment of
representa-
competent
provide
lawyer
A
shall
may
lawyer
retain
incurred.
earned or
Competent representation re-
client.
tion to a
per-
relating
client to the extent
papers
to the
skill, thoroughness,
knowledge,
quires the
by other law.
mitted
necessary
reasonably
for
preparation
and
representation.
Wilcox,
Bar Ass'n
In State ex rel. Okla.
lawyer
provides:
shall
"A
the ORPC
4. Rule 1.3 of
regarding
651 n.
n.
227 P.3d
OK
dlhgence
promptness in
act with reasonable
ORPC,
"This rule does
we stated:
rule 8.4 of
representing a client."
lawyer's
but
a
conduct
itself mandate
not
disci-
professional misconduct
for which
defines
provides:
of the ORPC
5. Rule 1.4
note
pline
appropriate." Also in the same
reasonably
(a)
keep
lawyer
a client
A
shall
RGDP, we stated:
regarding
1.3 of the
rule
a matter
about
the status of
informed
lawyer conduct.
not mandate
"Rule 1.3 does
requests
comply
with reasonable
promptly
discipline
lawyer
a
subjects
a
Rule 1.3
information.
mandating lawyer conduct."
rules
violation of
(b)
explain
lawyer
a matter
shall
A
which allow
the authorities
and 1.3 are
Rules 8.4
permit
reasonably necessary
extent
provisions
disciplined and are not
lawyer
a
to be
regarding
decisions
make informed
client
mandating
lawyer's professional conduct.
a
representation.
1.5(a)
part:
part:
"A
provides
8.1(b)
provides
of the ORPC
6. Rule
of the ORPC
10. Rule
for, charge
agreement
lawyer
disciplinary
not make an
lawyer
shall
with a
...
in connection
"[A]
unreason-
fee or an
matter,
respond
an unreasonable
knowingly
or collect
fail
shall not ...
expenses...."
amount for
able
from an admis-
for information
a lawful demand
»
authority...
disciplinary
."'.
sions or
require-
governs the
of the ORPC
7. Rule 1.15
property
segregate
and to
a client's
ments to
"The
RGDP
11. Rule 5.2 of the
a trust account.
maintain
(20)
twenty
lawyer
within
a
to answer
failure of
(or
recital
days
service of the
1.16(c)
(d)
8. Rule
provide:
allegations),
further time as
or such
facts
(c)
comply
applicable
lawyer
must
A
Counsel, shall be
granted by
be
permission of a
requiring
to or
notice
law
discipline."
grounds for
representation.
terminating a
when
tribunal
tribunal,
lawyer
a
do so
a
When ordered to
acknowledges
that Whitebook
12. The
notwithstanding
representation
continue
shall
In a
for the client.
performed some services
terminating
representation.
good
cause
produced
deposition,
testified
(d)
representation,
a
Upon termination of
(the
not make the docu-
OBA did
documents
reasonably
steps
lawyer
to the extent
shall take
record)
con-
part
that he had done
interests,
of the
ments
protect
such
practicable
a client's
probate and was continu-
client,
work on
siderable
allow-
giving
notice to the
reasonable
counsel,
probate at the time of the
ing working
employment
sur-
ing
of other
time for
deposition.
property
rendering papers
to which
ORPC. Rule 1.15 addresses
safekeeping
afforded an opportunity to be heard so that
property
of a client's
lawyer
entrusted to a
he received
right
his
process.
to due
by segregating
property.
Under
rule
122 The Court finds that
the record is
1.15,
lawyer may
to maintain a
sufficient for our de novo review of the alle
trust
deposit
account and
money
client's
gations against Whitebook. State ex rel.
the account. The OBAdoes
allege
in the
Shomber,
Okla. Bar Ass'n v.
95, ¶
complaint that Whitebook failed
deposit
162-163. Based on this
the retainer fees in a trust account or other-
record, we find that Whitebook violated rules
wise failed to isolate the fees from his other
1.1, 1.8, 1.4,
8.1(b)
1.5, and
of the ORPC and
facts,
alleged
funds. The
if deemed admit- Rule 5.2 of the RGDP. The record is insuffi
ted, are insufficient
to show that Whitebook
cient
support
finding
of a violation of
violated rule 1.15 of the ORPC.
rules 1.15
ORPC,
and 1.16 of the
and rule 8.4
{19 Rule 1.16 of the ORPC addresses a
of the ORPC and rule 1.3 of the RGDP are
lawyer's obligations and methods for declin-
inapplicable.
ing and terminating
representation.
goal
128 The
in bar
allege
does not
that Whitebook
proceedings
punish
is not to
protect
representation,
declined
representa-
his
public
and the integrity
judicial
terminated,
tion was
or that he failed to
system. State ex rel. Okla. Bar Ass'n v.
papers
surrender
property
to which his
Beasley,
VII
AND
FINDINGS
generally
CONCLUSIONS
failing
perform
to
services
for which
paid,
he was
failing to communicate
121 A lawyer accused of miscon
clients,
and failing to refund unearned
duct must be
process:
afforded due
the law
fees. He did
respond
not
grievance,
to the
yer
given
must be
notice of
charges
the
respond
did not
to
complaint,
the
and did not
afforded an opportunity to be heard. State
participate in the proceedings except
ap-
to
ex rel.
Seratt,
Okla. Bar Ass'n v.
pear at the PRT hearing. At
hearing
¶ 7,
392. Whitebook received
rather
than oppose the OBA's motion to
by mail,
notice
mail,
certified
personal
allegations
deem the
admitted,
lawyer
service of every stage of the proceeding and
stipulated to the motion. This Court sus-
charges against him,
and Whitebook
pended
lawyer
practice
from the
of law
was afforded an opportunity to respond to
years
for two
day.
and a
grievances
and to the complaint,
to at
tend the PRT hearing, and to file a brief with
125 Similarly,
in State ex rel. Okla. Bar
this Court. He chose to
one Ass'n v. Phillips,
only
attend
link to the
under Related Links.
government.2
of
The Su
preme Court,
duty
to aid in its
of
attorney
If the
administer
is NOT located in Tulsa
ing justice in
County
Oklahoma
you
created the
must call
Okla
the State Bar of
Association,3
homa Bar
as an official arm
Oklahoma at the
of
numbers listed below or
Attorney's
Court.4
licensed Oklahoma
visit
their
website to obtain the correct
part
judicial
are a
system
(Emphasis
original).
form.
and are
officersin its courts.5
original jurisdiction
T4 The
of the Okla
Supreme
homa
Court
general
extends to a
15 The Court
original
has
and exclusive
superintending
control
jurisdiction
over
all
inferior
in all matters involving adminis
courts
agencies,
and all
commissions and
persons
tration of
law in this
by
boards created
law.1 It is
Supreme
cause,
State and
and all
nondelegable,
Court's
constitutional responsi
persons
licensed to
law in Oklah
bility
regulate discipline
part
oma.6
jurisdiction
practition-
As
of this
of the
7,
1. The
§
Oklahoma Constitution art.
4
(Okla.
the Constitution
this State
pertinent part:
Const.(1907),
(1967)
IV,
Art.
1,
Section
Art. VII
appellate jurisdiction
Section
Integration
. The
1, 4; In re
Supreme
of the
State Bar
Oklahoma,
505,
(1939);
185 Okla.
supervision
disciplinary
of all
matters
potential
rule and it
thought
misuse.
I
those
affecting lawyers.
might
concerns
have been diminished when
explained
We
Downes,
State ex. rel. Oklahoma Bar we decided
today
I would re
¶
Downes,
38.2(i)
visit the issue and strike Rule
Association v.
altogeth
3.2)
1058, that,
P.3d
Rule
does not allow a
er as unconstitutional
promulgation.
since its
county
bar member or
Allowing
Association to
County
a
Bar Association to screen
determine that a
complaint
formal
grievances
should not
and to decide
griev
whether such
impose discipline,
be initiated or to
by
even
ances
be dismissed or forwarded to the
private reprimand.10 We also said that after General Counsel should not be authorized.
an interpretation
a
county
Such
bar member or state or
provide
fails to
bar commit
even
investigates
tee
equal process
grievance,
handed due and
a
it
to Oklahoma
submit
should
lawyers.12 For 76 counties in Oklahoma we
report
every grievance
its
as to
complaint,
together
supporting documentation,
have a
investigator;
neutral
for Tulsa Coun
presentation
General Counsel for
ty,
investigations
being
are
by
conducted
Commission.11 According to
the TCBA let
lawyer's
peers
colleagues.
pro
Rule 3.2
ter,
it
interpret
does not
either
special
Downes or
vides
treatment
County
Tulsa
law-
In State
rel.
ex.
Oklahoma Bar Association v.
investigated your
Committee has
complaint
Downes,
against
one of
attorney.
the referenced
grievances
against
filed
Downes was filed
only
grievances
This Committee
addressed
initially
a client
with the TCBA and
alleging
then with the
atiorney misconduct which violates
OBA.
the Oklahoma Rules of Professional Conduct.
On March
the TCBA wrote to the
OBA, forwarding
complaint
which had
Although
been
attorney may
conduct of an
seem
filed
provides
with them. The
pertinent
letter
inappropriate, may
otherwise
necessarily
it
constitute a violation of the Rules. The con-
part:
duct
in this case was deemed not to violate
you
. I would advise
that on March
those Rules and the Committee has dismissed
Hanger
2003, Ms.
filed the referenced
com-
your Complaint.
plaint
County
with the Tulsa
Bar Association
Accordingly,
we decline to take
further
Responsibility
Commitiee. While
respect
your Complaint....
action with
it
is not verbatim the identical
it
complaint,
appears to be
principal
contained the same
11. Also in State ex. rel. Oklahoma Bar Association
components
complaint
filed with the
v. Downes,
see note 10,
the Bar Associa-
supra,
County
Tulsa
Bar Association.
attorney
tion wrote to the
a letter on March
reporied
was ...
pertinent
regular meeting
December 2003
of the Profes-
sional
Committee and was
receipt
dis-
...
your 'response'
Our office is in
missed
vote of the committee.
grievance,
consisting of a cover letter and
copyA
informing
of the letter
Hanger
Ms.
copy
your
reply
County
the Tulsa
the declination to take further action
at-
Association. While our office was aware of a
tached
purpose
hereto. The
of this letter is
Hanger against you
from Ms.
being
simply
you
always,
advise
of these facts. As
made to the Tulsa
Bar Association, we
County
concerning
our file
this matter
way
is available to
knowing
have no
if these matters are 'in
the Oklahoma Bar
substantially
content,'
Association.
I find it a bit
similar form and
as no
disconcerting
complainant
copy
would file
original grievance
you has
second
with the OBA after her first
ever been furnished to this office. ...
substantially
similar claim was determined
the committee not to be forwarded
Equal
to the Okla-
12. Protection Clause of the 14th
homa Bar
bringing
without
§
Amend.,
1, U.S. Const.,
commands
that no
(Em-
deny
fact
to the Bar Association's
process
State shall
"deny
due
of the law or
attention.
phasis
original.)
...
any person
jurisdiction
equal
within its
protection
December
pro
of the laws." Oklahoma's due
letter
which was sent
*10
complainant
clause,
7,
per-
Const.,
from the TCBA
§
cess
Art.
Okl.
has a defini
tinent
sweep
tional
that is coextensive with its federal
you
... Thank
bringing
this matter to our
Black v. Ball
Serv.,
Janitorial
counterpart.
Inc.,
attention.
The
Responsibility
Professional
fn.
513.
-
depression,
to his
very sympathetic
be
may inure to their
treatment
yers.
disease,
pros
of
possible
onset
way it is Crohn's
detriment-either
to their
or
benefit
elaborate on
was asked to
cancer. He
tate
disparate.
issues,
Bar Association's
his health
lawyer in this cause
respondent
The
T8
provide assistance
offered to
lawyer even
being
complain of the
does not
health issues.14
help regarding these
and/or
Nevertheless, one
by the TCBA.13
forwarded
brought
have been
Perhaps this cause should
determining the re
factors for
main
Rule 10.15
under
he was
fact that
is the
spondent's
investigations.
to the OBA
non-responsive
discipline should be
that
I do concur
probably
would
lawyers in Oklahoma
However,
Most
sanction the
I cannot
imposed.
County
that
their
County
Bar Asso-
allowinga
surprised to discover
of
continuation
be
investigating and
may be
Bar Association
grievances on
and dismiss
to sereen
ciation
contacted
Had he been
them.
questioning
refer-
without
Counsel
behalf of
officeof
Counsel's
initially by the General
The
the General Counsel.
ring them to
may have
responsiveness
his
Bar
it has continued
suggests that
letter
TCBA
very different.
been
ex. rel.
in contradiction to State
practice
Downes, 2005
v.
Bar Association
by the
discipline recommended
33, 126,
Again, I would
Tyemployedby Sterling
Irving,
Commercein
employment
Texas. Her
has consisted of
being
negotiator,
senior contract
and later as
supervisor and
manager
senior
in the soft-
licensing department.
ware
presented
Evidence
before the Profes-
Responsibility
sional
Tribunal
showed that
job
required
her
duties
her to draft and
negotiate complex agreements.
employ-
Her
was admitted to the Oklahoma Bar Associa- ment with Security the Client's Fund of the (OBA) tion in September 1995. Petitioner Oklahoma Bar Association. Petitioner also practiced law in the State of provided Oklahoma for good evidence as to the moral ten In months. Petitioner moved from necessary character to be admitted to the Worth, the State of Oklahoma to Fort Texas. Oklahoma Bar Association an active