Lead Opinion
¶ 1 In this disсiplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a mean
I
INTRODUCTION TO THE RECORD
¶2 The Oklahoma Bar Association [Bar] charged Richard Stutsman [Stutsman or Respondent], a licensed lawyer, with four counts of professional misconduct.
¶ 3 Following receipt of the parties’ briefs and upon consideration of the briefs, the stipulations, and the testimony on file, the trial panel issued a report with its findings of fact and conclusions of law together with a recommendation for discipline. In accord with the parties’ stiрulations, the PRT found that respondent had violated ORPC Rules 1.15(b) and 8.4(c). It recommended that Stutsman be suspended for one year and be required to pay the costs of this proceeding.
II
THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING
¶ 4 In a bar disciplinary proceeding this court functions in an adjudicative capacity as a licensing authority vested with exclu
¶ 5 The court’s duty can be discharged only if the trial panel submits a complete record of the proceedings.
¶ 6 Stutsman has admitted, and the record sufficiently supports, the allegations of professional misconduct. Upon consideration of the record we conclude that its contents are adequate for this court’s de novo consideration of respondent’s professional misconduct in contest.
Ill
THE LONE SURVIVING COUNT
¶7 The charges against respondent arise from his conversion (or, in a legal sense, commingling) of an attorney’s fee received from Steven David [David]. While employed at Riggs, Abney, Neal, and Turpén [Riggs Abney or the firm], respondent provided legal services to David relating to a stock purchase. The stock of Summit Acceptance Corporation was held in trust. David and his sister were the trust beneficiaries. On 4 May 1994 David purchased her interest in the trust. Respondent represented David
¶ 8 Employed by the firm since 1988, respondent became a partner in January 1993. The firm merged with another (the Robinson Lewis firm) effective 1 April 1994. Reconciliation of the different accounting and cоmputer systems of the two firms delayed the actual merger until early August 1994. On May 3 or 4 of that year respondent notified the firm that he would be leaving at month’s end. The following day, respondent gave written notice.
¶ 9 According to the Shareholder’s Agreement the firm would purchase respondent’s (shareholder’s) share of the stock within thirty days of the notice. Upon withdrawal from the firm, partners were to receive their share of interest in the firm’s furniture, fixtures, equipment and cash on hand. Respondent assumed that payment would be made within thirty (30) days of notice, as provided for in the Shareholder’s Agrеement, which disbursement would have been due on June 3 or June 4. According to respondent, the firm explained that he would not be paid in a timely manner. Respondent received his disbursement ($12,116.27) on August 18 or 19.
¶ 10 On 31 May 1994, after being informed that he would not receive his disbursement in a timely manner and even before any payment from the firm teas due, respondent billed his client David on his own letterhead for services performed while employed at the firm. That billing, in the amount оf $2,343.75, was concealed for nearly two years until it was uncovered during the course of discovery in a malpractice lawsuit brought by David against the firm and respondent. On 6 June 1996, after respondent’s actions had become known to the firm and before any grievance was filed, respondent tendered to the firm a money order for $2,343.75. One factor that appears to have prevented earlier detection of the payment to respondent is a credit that had been issued to the client’s account for $2,995.94. This happened shortly before respondent’s deрarture from the firm. It is unknown who authorized that credit or why it was extended. Moreover, respondent did not leave at the firm any paper trail of the billed services.
IV
MISHANDLING OF LAW FIRM FUNDS
¶ 11 The Bar has charged Stutsman with misappropriating an attorney’s fee from his firm and concealing that fact in violation of ORPC Rules 1.15(b) and 8.4(e).
¶ 12 Where money has been entrusted to an attorney for a specific purpose, it must be applied to that purpose. The lawyer may not avail himself of a counterclaim or set-off for fees by interposing demands to count against any client’s money coming into his hands for such specific purpose.
¶ 13 Stutsman admits that he billed his client on his own letterhead for work that he did while working for Riggs Abney. By failing to repori this money to the firm, Stutsman has commingled funds.
¶ 14 On de novo consideration, we adopt the PRT’s conclusion and hold that discipline is warranted for respondent’s mishandling of funds.
y
A ONE-YEAR SUSPENSION IS AN APPROPRIATE SANCTION FOR RESPONDENT’S PAST PROFESSIONAL MISCONDUCT
1115 The primary purpose for imрosing professional discipline is not to punish the offender but to protect the public by inquiring into the offender’s continued fitness to practice law.
¶ 16 While the PRT recommends that respondent’s license be suspended for one year and that the costs of these proceedings be assessed against him, thе Bar suggests that respondent’s misconduct warrants more severe discipline. It contends that the appropriate discipline is two years and one day. Stutsman urges that we visit a private reprimand or public censure.
¶ 17 As for mitigating factors, we are informed that respondent has beеn a member of the bar for eighteen years and has no record of prior discipline. He admitted his wrongdoing and expressed remorse. He has cooperated fully with the Bar and with the PRT throughout the course of the disciplinary proceedings. Once his conversion of the funds was discоvered, respondent tendered to the firm full reimbursement before a grievance was filed.
¶ 19 RESPONDENT’S LICENSE TO PRACTICE LAW IS ORDERED SUSPENDED FOR A PERIOD OF ONE YEAR AND HE IS DIRECTED TO PAY THE COSTS OF THIS PROCEEDING, WHICH SHALL BE DUE NOT LATER THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.
Notes
. The record consists of the pretrial order (which contains stiрulated facts, agreed conclusions of law and agreed factors to be considered in mitigation of the charges), a transcript of the hearing held before the Professional Responsibility Tribunal, exhibits offered by both parties, which were admitted in evidence at that hearing, and the Report of the Professional Responsibility Tribunal.
Identified herein are only those counsel for the parties whose names appear on the briefs responding to this court’s order of 28 August 1998.
. This bar disciplinary proceeding was commenced on 12 June 1998 by the filing of the Bar’s complaint in accordance with the provisions of Rule 6 (.Formal Proceedings Before Supreme Court and Professional Responsibility Tribunal), Rules Governing Disciplinary Proceedings [RGDP], 5 O.S.1991, Ch. 1, Ap. 1-A. The pertinent terms of RGDP Rule 6.1 are:
... The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chаirman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court....
The Bar’s June 12 complaint charged respondent with violating Rules 1.1, 1.15(b), 8.4(c) and 8.4(d), Oklahoma Rules of Professional Conduct [ORPC], 5 O.S.1991, Ch. 1, App. 3-A.
. The Bar’s 17 July 1998 amended complaint charged respondent with violating ORPC Rules 1.1, 1.15(b), and 8.4(c).
. The pertinent terms of Rule 1.15(b), Oklahoma Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A, are:
... (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by аgreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property....
. Thе terms of Rule 8.4(c), Oklahoma Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A, are:
It is professional misconduct for a lawyer to:
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(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;....
. State ex rel. Okl. Bar Ass’n v. Leigh,
. Eakin, supra note 6, at ¶ 8, at 648; State ex rel. Okl. Bar Ass'n v. Downing,
. Leigh, supra note 6, at ¶11, at 666; Eakin, supra note 6, at ¶ 8, at 647-648; State ex rel. Okl. Bar Ass'n v. Lloyd,
. Eakin, supra note 6, at ¶ 8, at 648; Raskin, supra note 6, at V 11, at 265. The court’s range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a);
(a) The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate.
. Bolton, supra note 6, at ¶ 15, at 344; Eakin, supra note 6, at ¶ 8, at 648; State ex rel. Okl. Bar Ass’n v. Farrant,
. The terms of RGDP Rule 6.13 provide in part:
Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shаll contain the Trial Panel's findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat....
. Eakin, supra note 6, at ¶ 9, at 648; Bolton, supra note 6, at ¶ 16, at 345; State ex rel. Okl. Bar Ass’n v. Perceful,
. For the pertinent text of Rule 1.15(b), see supra note 4; for the pertinent text of Rule 8.4(c), see supra note 5.
. State ex rel. Okl. Bar Ass'n v. Wallace,
.These standards were set out in State ex rel. Okl. Bar Ass’n v. Johnston,
. A lawyer found guilty of intentionally inflicting grave economic harm in mishandling clients’ funds is deemed to have committed the most grievous degree of offense. Donnelly, supra note 6 at 548. A finding that the attorney did so intentionally, regardless of exceptional mitigation factors, (Raskin, supra note 6), mandates the imрosition of harsh discipline — disbarment. See RGDP Rule 1.4(c); State ex rel. Oklahoma Bar Assn. v. Miskovsky,
. The terms of Rule 6.12(c), Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch.l, App. 1-A, are:
(c) To warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence,....
. See, e.g., Matter of Disciplinary Proceedings Against Olson, 216 Wis.2d 483, 484-85,
. Olson, supra note 18 at 484-85; Casey, supra note 18 at 95.
. Wallace, supra note 14, at ¶ 29, at 826; Bolton, supra note 6, at V 12, at 602; Donnelly, supra note 6, at ¶ 14, at 546; State ex rel. Okl. Bar Ass’n v. Colston,
. Raskin, supra note 6 at 267.
. The use of lenient discipline for the purpose of encouraging restitution cannot be sanctioned because it conflicts with the paramount goal of preserving public confidence in the entire bar. Raskin, supra note 6 at 267.
Concurrence Opinion
joins, concurring in part and dissenting in part.
¶ 1 I concur in discipline but would administer a more severe punishment.