*1 ¶ 15 application The Bar Association’s for
approval respondent’s resignation waives proceeding
its costs S.C.B.D. 4759. name, address, 16 The official roster number,
Bar Association Avenue,
R. Scroggs, Scott 36th S. West
Tulsa, 16,889. No. O.B.A.
¶ 17 IT IS THEREFORE ORDERED application by
that the the Bar Association resignation Scroggs of R. Scott are
approved.
¶ 18 IT IS FURTHER ORDERED that
Respondent’s name be stricken from the Roll Attorneys and that application he make no membership reinstatement in the Okla- prior years
homa Bar Association to five
from the effective date of this order.
¶ 19 IT IS FURTHER ORDERED that if Security funds of the Clients’ Fund of
the Oklahoma Bar expended Association are behalf of he must show the
amount and that the same has been
repaid, interest, to the Oklahoma Bar prior
Association to reimburse such Fund
reinstatement.
¶ 20 DONE BY ORDER OF THE SU-
PREME TUTS IN COURT CONFERENCE MAY,
19th DAY OF
¶ 21 All Justices concur.
STATE of ex rel. OKLA ASSOCIATION, BAR
HOMA
Complainant, TAYLOR,
Michael Respondent. C.
No. 4615.
Supreme Court of Oklahoma.
May *3 Farabow,
Loraine Dillinder Gen- Assistant Counsel, Association, eral Oklahoma Bar City, Complainant. Oklahoma Oklahoma for Respondent, Taylor, Michael appearing C. pro se.
LAVENDER, J.
¶ Complainant, 1 the Oklahoma Asso- Bar (OBA) brought disciplinary proceed- ciation Doris, Bar Ass’n v. Taylor ex. rel. Oklahoma [State Michael C. mgs 94, 3, P.2d Governing Disciplinary 1017] Rules under Rule (RGDP), O.S.2001, App. complete be made requires a record before Ch. Proceеdings PRT, Responsi- 1-A, A one sufficient for examination Professional as amended. (PRT) issues, thorough inquiry found re- into panel pertinent all bility trial Tribunal facts, crafting appro- and the Okla- the RGDP all spondent violated essential (ORPC), adequate Conduct priate discipline. Rules of Professional The record is homa Id. amended, 3-A, O.S.2001, App. Ch. de novo review. for such hold public reprimand.1 We recommends OVERVIEW, AND PART II. FACTS misconduct, public engaged in BACKGROUND. and he should warranted reprimand is proceedings.2 of these the costs *4 ¶ testi- hearing, 3 A at which OF REVIEW. PARTI. STANDARD admitted, was held fied and 117 exhibits were in 2 The review standard PRT. record includes the before the The follows: disciplinary eases is as hearing transcript, complaint the proceedings attorney disciplinary [our] the PRT’s written spondent, In his answer and The joint stipulations made de novo. parties’ are report, determinations with the deciding detailed, wheth- responsibility for stipulations ultimate are con- attached.3 The (56) and what disci- has occurred taining fifty-six er misconduct numbered sentences or (20) found if misconduct is pline twenty pages. is warranted span paragraphs of our exclu- counts, with us in the exercise rests They into three are broken down disciplinary original jurisdiction bar aggravating sive and include sections findings fact of a the circumstances, matters. discipline [N]either mitigating a recom- view of the evidence nor its parties [PRT] the and other matters mendation binding on us credibility witnesses are pertinent. No need exists set out deem merely ... are and recommendations entirety [its] It will stipulations. suf- the omitted) (citations advisory, required to execute them as fice to discuss duty if violated our to decide Todd, v. Bar Ass’n ex rel. Oklahoma State and, discipline if the war- pertinent Rules 260, 81, 262. Even when 833 P.2d 1992 OK joint and waiver of ranted. A brief-in-chief misconduct, stip- the parties’ stipulate to the by parties with further briefs was filed duty is to not bind us for our ulations do this Court.4 if novo to decide the evidence de review allegations are established misconduct stipulates he violated Rule Respondent convincing ex. rel. [State evidence clear 1.15(b)-(c),ORPC, provide: McGee, 32, Bar Ass’n v. OK Oklahoma (b) prop- Upon receiving funds or other 787, 792], i.e, proof 20, degree a 48 P.3d person a client or third erty in which of fact a producing in the mind of the trier notify interest, lawyer promptly shall a of the truth of the firm or conviction belief person. Except as stat- or third the client sought to be established. State allegations permitted Green, Rule or otherwise ed in this Bar Ass’n ex. rel. Oklahoma a by agreement with law or 949. The review is 936 P.2d to the client lawyer promptly deliver shall all relevant facts exploration of full-scale good good this Court. No Governing cause Disci- remitted for Rules 1. We cite to the current O.S.2001, (RGDP) (5 Proceedings Ch. plinary App. has been shown. cause for remission 1-A, amended) Rules of and Oklahoma as O.S.2001, (ORPC) (5 Ch. Professional Conduct App. joint stipulations parties’ was also written 3. The 3-A, amended). per- No amendments to as Responsi- admitted at the Professional an exhibit occurred since the relevant tinent Rules have (PRT) hearing, were bility panel Tribunal trial covering period the conduct time Michael C. respondent's complaint answer. Taylor. 6.16, provides thаt where disci- RGDP 2. Rule by clear and con- are shown 4. The facts recited investigation, imposed, pline the costs of the evidence, joint considering parties' vincing disciplinary proceedings shall be sur- record stipulations the evidence in the record. disciplined lawyer, charged against unless person proper- injured or other passenger or third funds while a a vehicle hit ty person by a injuries that the client or third is entitled drunk driver in Texas. Her treatment, and, required request by she upon to receive the client incurred medical initially represented by bills and was a Texas person, promptly or third shall render a attorney, Hank Anderson. The record re- accounting regarding full property. such $45,600 totaling veals medical bills about (c) representation inWhen the course of least, involving, at thirteen lawyer possession property is in Also, viders located in Texas. as we read the lawyer person which both the and another record, actually Ms. Herdt’s medical bills interests, property claim kept shall be $50,000, exceeded but the additional bills are separate by lawyer until there is an Further, not detailed the record. al- accounting and severance of their inter- joint stipulations sometimes refer dispute ests. If a arises their provider to medical plural, liens in the as we interests, respective portion dispute parties’ stipulations, read the coupled kept separate by lawyer shall be until respondent’s testimony and the exhibits ad- dispute is resolved.5 hearing, mitted at the PRT respondent was stipulated 8.4(e), violating He also Rule only provider аware of having one medical ORPC, provides: professional “[i]t is lien in its favor at the time he disbursed lawyer engage misconduct for a to ... certain settlement funds in late November- *5 involving fraud, dishonesty, conduct deceit or early December 1999. The lienholder was misrepresentation[.] Although parties Regional System United Health Care stipulated violation, to its we do not find (URHCS)(also known as Wichita General convincing respondent clear and evidence vi- Hospital), having statutory hospi- URHCS a 8.4(c). olated Rule We do find he violated tal parties lien under stipu- Texas law.7 The 1.15(b)-(c) by way Rule per- he handled lated that governs Texas law as to whether a injury sonal settlement funds he received provider medical may or lienholder make a representing while a Jamie Herdt.6 claim рaid by to settlement under- ¶ springs 5 The case respondent’s (UM) from stipu- benefits —the insured/uninsured representation who, lation, of effect, Ms. Herdt based on the fact the acei- Although respondent charged 5. is not proceeding its a prece- criminal is not a condition 1.15(a), ORPC, we violation set forth Rule which imposition discipline. dent to the 8.4(a), is as follows: provides: professional Rule ORPC "[i]t lawyer attempt misconduct for a to ... violate or a) lawyer property A shall hold of clients or [ORPC],knowingly to violate the assist or induce persons lawyer's possession third that is in a through another to do or do so the acts of representation separate connection with a charging The another[.]” of violation of these lawyer’s property. own Funds shall Rules, stipulation two he viоlated them and the kept separate be in a account maintained in violation, view, finding PRT’s in our involves situated, lawyer's the state where the office is transgression no additional to his conduct viola- or elsewhere with the written consent of the 1.15(b)-(c), tive of Rule ORPC. No need exists to person. property client or third Other shall be 8.4(a), 1.3, further discuss Rules ORPC or RGDP. appropriately safeguard- identified as such and Complete ed. records of such account funds January respondent 7.A 2000 letter to from property kept by lawyer and other shall be representing hospital, Baylor law firm a second preserved period and shall be for a of five (BUMC), University Medical Center was an ex- years representation. after termination of the hearing. hibit admitted at the PRT The letter running asserts BUMC also had a lien in its joint stipulations agree respondent The also parties’ joint stipulations favor. The do not men- 8.4(a), 1.3, RGDP, violated Rule ORPC and Rule significance tion the letter and its is not ade- and the PRT found violation of said Rules. The quately mentioned) explained (though at the PRT provides: latter 1) hearing. The record is not clear as to whether by any lawyer any The commission actually properly act BUMC had a filed lien under contrary conduct, prescribed 2) whether, did, statutory standards of Texas law or it if whether professional in the course respondent of his ca- was aware of the lien in late Novem- otherwise, pacity, or ber-early clear, which act would reason- December 1999. The record is ably bring however, upon legal be found to discredit respondent knew BUMC had аn profession, grounds disciplinary outstanding shall be bill medical in the Jamie Herdt mat- action, time, felony whether or not the act is a ter at said a bill the record indicates was misdemeanor, $14,000. or a crime at all. Conviction in close to payees.8 The two checks issued Anderson as medical services pertinent occurred dent respondent received them about Novem Although par- in Texas. received were 23,1999. in our formally stipulated, ber not so have ties law view, appear to be Texas also it would $12,417.81 by check was held 8 The provid- a medical govern whether would i.e., deposited ac- spondent, to his trust legitimate claim to had a lienholder er or any account controlled him. count or proceeds re- liability settlement insurance 24, 2000, respon- Evеntually, August about by respondent. ceived attorney, gave new the check to Herdt’s dent Oklahoma, moved to In 1999 Ms. Herdt it, i.e., Herdt nine months after he received respondent. and hired Anderson terminated respondent July having terminated the initial fairly unusual because This case is deposit the check Respondent was unable to grievance to OBA agreed to his trust account as URHCS never effect, In she asserted by Ms. Herdt. was agreement endorse it because no respondent’s part, communication lack of and lien. regarding reached their medical bill completely account to alleged failure to his $7,582.19 deposited to his The check was proceeds received her for all settlement 23,1999. November trust account on or about being contacted about him and frustration any of the above 9 Prior to disbursal of outstanding regarding agencies collection sums, Herdt, Anderson and process During disciplinary medical bills. equally attorneys would the two metamorphosis into underwent the matter gross share 40% fee on respondent’s charges of misconduct about There is also clear and proceeds collected. third-party treatment convincing although evidence that respecting settlement funds he Ms. Herdt know what Texas law was as to did not unusual because The case is also received. not, providers, lienholder or whether medical ap- of Texas although the substantive law *6 rightfully claim an interest the liabil- could underlying question pears applicable to the or, if ity proceeds received or UM set- disputants’ entitlement to competing of interest, know, nor did he extent of such proceeds received tlement law, disposition appropriate under Texas respondent are mea- obligations of ethical liability amount proceeds check of the to the ORPC adherence sured could lien or the extent URHCS of URHCS’s RGDP, i.e., professional stan- Oklahoma’s therein, on No- rightfully claim an interest lawyer’s conduct. governing a dards (by monies 1999 he disbursed vember September 1999 Allstate Insurance 7 In check) regard account in to the from his trust (insurer owner in Company for the vehicle matter as follows: Herdt passenger) issued a set- Herdt was a which $50,000 UM benefits check for for tlement $10,000 indi- check 1. to Anderson —the The check payable to Herdt and Anderson. attorney fees half the cating it was for Herdt, respon- given by hеr to to $50,000 was mailed UM owed to Anderson dent, per- and Anderson’s i.e., and with Herdt’s received, 20% of proceeds settlement = deposited endorsed mission $50,000 $10,000; September 1999. in late it to his trust account $1,435.10 reimburse Anderson to 2. to for negotiated a settlement Respondent also in the Herdt had incurred him for costs he insurer, $20,000 Geico with the tortfeasor’s case; requested two Company. He Insurance $10,000 operating ac- Geico, $12,417.81, respondent’s to 3. for be issued one checks for half indicating it was check that count —the of lien. He asked the amount URHCS’s $50,000 him, attorney owed from fees payable to Herdt and be made check received, i.e., 20% proceeds for the UM settlement that a second check URHCS = $10,000; $50,000 him, ($7,582.19) of Herdt and list remainder by separate to URHCS paid draft attorney eithеr Company’s check be Geico Insurance 8. —aware co-payee. System including Regional as a Health Care draft URHCS the United or a of (URHCS) required lien amount that lien— $10,000 check 4. to Ms. Herdt —the indi- not entitled to be the full amount of its cating “partial pay- it was settlement lien because he and Anderson were entitled (40%) forty $20,000 out”. percent liability to attorney plus for their fees costs.9 being Still unaware of Texas law as to the proceeds, again being As to the UM unaware funds, proper disposition of said on Decem- exactly subject, what Texas on the law was check) 1, 1999, (by ber he disbursed monies position providers he took the none of the regard from his trust account to Herdt any portion were entitled to of the UM matter as follows: ceeds. $3,791.09 half to Anderson for the at- torney deposited fees from the Geico check respondent ap it out As turns account; into his trust been, pears least, partially wrong to have at $3,791.10 respondent’s operating ac- liability pro entitlement to the attorney half of the count for his fees from ceeds because under Texas law the lienhold deposited the Geico check into his trust er, (assuming only URHCS it was the medi account. provider having statutory cal hospital lien liability proceeds, pro and no other parties stipulate 10 The that after assum- type superior vider had some interest ing Herdt’s case contacted the proceeds) probably was entitled to recov various medical and insurance car- full er the amount of lien its from the check matter, riers an effort to settlе the co-payee. on which it was See Bashara v. prior disbursing the above amounts Baptist Hospital System, Memorial attempted negotiate with he URHCS and (Tex.1985)(where personal injury S.W.2d 307 the other medical to determine settlement are sufficient to willingness their to reduce their bills so that attorney both hospital fees and lien of attor portion Herdt would able to receive a be ney not hospital entitled to reduce amount of agreement No funds. lien to recover fees out of funds regard, ever reached said however. Fur- liability from insurance ther, allocated to respon- even the record shows lien).10 payment hospital Contrariwise, exactly dent’s unawareness what Texas respondent appears correct, to have been un subject, position law was on the he took the law, der Texas not, pro unsecured medical providers, with the medical lienholder or (assuming viders and only proportionate assignment URHCS no each was entitled to a *7 liability proceeds Herdt of an in proceeds share of the after interest the UM his and any provider to attorney agreement medical or some Anderson’s fees and costs were de- therefrom, i.e., by respondent figure ducted he calculated and Herdt with them that $10,000. words, paid to be about In medical bills other his would be from the UM position providers proceeds) was all medical were enti- had no entitlement or valid claim only proportionate any tled to their portion share of of interest to proc of the UM $10,000 URHCS, entity However, and as to above, said was eeds.11 as noted when dis time, course, respondent already respondent (40%) 9. At such of had equally forty would share a fee paid attorney himself and Anderson all of received, i.e., gross proceeds on the settlement they agreed except fees had were due $70,000, for about gross pay this amount was sufficient to which, essence, $420 in he for some reason be- = ($28,000 $70,000) attorney fees of 40% lieved he was entitled to from the check he was liability check for the amount of holding co-payee on which URHCS awas even ($12,417.81) URHCS's lien would still have been money remaining there was from the UM available for the full amount of the lien. There proceeds to cover this additional amount at- of appears to have been no reason for to torney fees. position attempt take the or to convince URHCS attorney that he was entitled to fees out of the proceeds 10. The settlement involved in Bashara check in the amount of the lien. weAs view the Baptist Hospital System, v. Memorial 685 S.W.2d large part, really record he did in because he (Tex. 1985) only seem to have come from the subject. did not know what Texas law was on the carrier, liability part tortfeasor's rather than liability part from insurance and from underin- (UM) However, proceeds 11.Under insurance. Texas law insurance from in sured/uninsured the present respondent, coverage subject statutory matter because hospi- Herdt UM are not to a agreed and Anderson had Company Anderson and tal lien. Members Mutual Insurance v. representation his of Anderson was owed for respondent did not know made was tribution Ms. Herdt. improper to and it was law was what Texas did, including dis as he the funds distribute Although respondent to each wrote attorney himself and fees to
tribution
early
provider in
December 1999
Anderson,
affairs existi
$20,000
a state of
with such
informing
he had received
them
$50,000
liability proceeds
ng.12
UM
any
at
ceeds he failed
that time to inform
also contains clear and
The record
them,
URHCS,
including
day
that he had the
prior
receiving
convincing evidence
checks
to himself
before
issued
$20,000
totaling
from Geico
checks
the two
liability proceeds
out
Anderson
1)
attorney to
agreed with Geico’s
part
attorney
due himself and
fees
proceeds,
said
medical bills from
pay Herdt’s
Anderson, or
November 1999 he
late
2)
agreement
each and
with
or
work out
$10,000
given
to himself and
had
еach
providers concern-
every
of the medical
one
$10,000
fees,
attorney
Anderson for
would be
part of said
ing what
Respondent,
proceeds.
Herdt
UM
3)
them,
agreement
barring such an
effect,
he knew at the time it
regard,
every provider in
said
with each
improper
given
any
Herdt
mon-
was
to have
proceeds’
the matter of the
he would submit
ey
agreement
all the medical
without an
from
court where a law-
to the Texas
distribution
one or more of the medical
because
against
filed
Herdt
making
part
suit had been
were
claim to
of the
prop-
proceeds.
Respondent
gave
to determine a
for that court
tortfeasor
$10,000
gesture
a humanitarian
Respondent Herdt the
as
of the funds.13
er distribution
transpor-
as she was
need of vehicle for
agreemеnt as he failed to
not honor this
did
tation. We note that because the record
Texas court after it
the issue to the
submit
shows
did not know what Texas
agreement
going to be
clear no
was
became
appropriate disposi-
law was
every provider that
reached with each
any
proceeds it
tion of
of the settlement
to Ms. Herdt for her
rendered treatment
had
plainly improper for him to distribute the
Furthermore, respondent
part
injuries.
used
proceeds as he did.
attorney
portion of the
proceeds for a
of the
matter,
($3,791.10)
clearly
he was owed
fees
14 The record also
and convinc-
respect to
paying
part
ingly
Anderson
shows that
well as
($3,791.09)
the check he held on which URHCS was
portion
fees
for a
(Tex.1984).
convincing
show clear and
evidence
Hospital,
does not
[A]s a original jurisdiction. obli our exclusive ex. State gations permit lawyer Doris, do not to hold rel. suprа, Oklahoma Bar Ass’n v. ¶ 36, disputed indefinitely 1024-1025; funds trust 1999 OK 991 P.2d at taking without some action to resolve the State ex rel. Oklahoma Bar Ass’n v. Down Therefore, dispute. special ing, absent circum- 1990 OK 804 P.2d 1122. Our lien, to the extent of benefits it proper disposition had to the ceeds and unaware of the attorney’s on settlement received under Texas law when he distribut- co-employee’s liability from client’s insur- ed the funds. ance carrier. fact, present 18. In in the case had definitely 17. We appro- need not decide here the with Geico’s he would seek court priate disposition of the funds respect liability proceeds intervention to the gauge ceived to whether not he violated Rule he had received should an informal resolution 1.15(b)-(c), enough ORPC. It is to know that he every not be reached with each and was aware one or more of the medical provider. claiming were an interest the settlement
29
complaint
brought or for an
until a bar
is
constitutional,
responsibility is
so
nondelegable
period
e.g.
of time.
State ex
discipline for an
extended
See
appropriate
to decide
Wilkins,
profes
Bar
1995
engaged in
rel.
Ass’n v.
to have
Oklahoma
attorney found
(six
59,
Id.;
suspension
ex rel. Okla
DATE FI- THIS OPINION BECOMES
NAL.19
¶ WATT, C.J., HODGES, KAUGER,
HARGRAVE, SUMMERS, WINCHESTER, JJ„
BOUDREAU
concur. ALA, V.C.J., concurring part; OP
dissenting part. declaring I concur in subject discipline; I dissent discipline imposed.
from the mild
Robert Oklahoma, Appellee.
STATE
No. PCD-2002-974. Appeals
Court of Criminal Oklahoma.
May 6.16, provides 19. Rule imposing RGDP discipline that failure of a “shall result in automatic disciplined lawyer ninety suspension practice said costs within of law until further (90) days after the effective date of an order [this] order of Court.”