Lead Opinion
¶1 This disciplinary proceeding against a lawyer poses two questions: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and its disposition?
¶2 Following a grievance filed by client Jackie Miller (Ms. Miller) on January 26, 2016, the Oklahoma Bar Association (Complainant) commenced an investigation against Shad K. Withers, a licensed lawyer (Respondent). On December 16, 2016, the OBA filed a formal complaint under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP),
¶3 A trial panel of the Professional Responsibility Tribunal (PRT) conducted a PRT Hearing on February 2, 2017. Upon conclusion of the hearing, consideration of testimony (Respondent was the sole witness) and *232admitted exhibits, the PRT issued its Report (PRT Report) on April 24, 2017. The PRT Report found generally that Respondent had violated the ORPC Rules 1.15,
STANDARD OF REVIEW
¶4 The Oklahoma Supreme Court has exclusive original jurisdiction regarding OBA proceedings. In re Integration of State Bar of Okla.,
¶5 Before a decision to discipline an offending attorney, the misconduct presented must be demonstrated by clear and convincing evidence, as required by Rule 6.12 of the RGDP,
FACTUAL BACKGROUND
¶6 The chronology of this case is detailed and complex so it is necessary to provide a thorough summary of the facts. This case arises from Respondent's representation of a client who went to an emergency room for treatment of heart-related symptoms. The treatment given was alleged to have triggered a cardiac arrest which necessitated a readmission to the medical facility. Thereby this medical negligence action was filed in response to that incident.
¶7 Jackie Miller (Ms. Miller) sought medical assistance when she went to the emergency room of the Oklahoma University Medical Center (OUMC) on December 31, 2007. Experiencing pain and tenderness over her pacemaker, Ms. Miller was prescribed the medication Zofram, which allegedly caused cardiorespiratory arrest and readmission to the hospital with severe injuries as a result.
¶8 On September 30, 2009, Ms. Miller hired attorney David Van Meter to pursue a *234medical negligence action against the hospital and doctors involved in her case. Defendants included OUMC, Healthcare Services, Inc., Tarek Dernaika, M.D., Moeen Abedin, M.D., Regi Matthew Pappy, M.D., Bradley J. Johnson, M.D., and S. Brent Barnes, M.D. The claim which was filed by Mr. Van Meter on Ms. Miller's behalf asserted an attorney's lien in favor of Mr. Van Meter. On February 25, 2013, after Mr. Van Meter had spent a period of years on the case, Ms. Miller terminated the client relationship with Mr. Van Meter after she failed to accept his advice that she accept a settlement offer for a total of $25,000, as to all defendants in total. Mr. Van Meter indicated that if Ms. Miller did not accept the settlement offer, he would no longer represent her in the matter and thereafter, counsel withdrew from the case. Ms. Miller, of her own initiative on May 6, 2013, dismissed the action without prejudice.
¶9 On January 21, 2014, Ms. Miller retained Respondent to represent her in the previously filed medical malpractice case. Respondent at the time was employed by the law firm of Brown and Gould. Initially, Respondent and Mr. Van Meter had some preliminary email discussions regarding the attorney's lien Mr. Van Meter possessed on Ms. Miller's case. Mr. Van Meter stated that he was entitled to 50% of any proceeds for the case or a flat amount of $25,000 plus his expenses. Respondent and his firm's partner (Tony Gould) refiled the action for Ms. Miller on May 6, 2014, with all the initially named defendants but also adding a new defendant, Dr. Brian Plaxico, D.O.
¶10 Subsequent to the refiling of the medical malpractice action, Respondent left Brown and Gould in August of 2014, and by an agreement on August 13, 2014, Mr. Gould withdrew from the case and Respondent continued representation of Ms. Miller as a sole practitioner. This was Respondent's first experience as a sole practitioner. Mr. Gould made no attorney lien claim, offering instead that he would be satisfied with recoupment of costs incurred - approximately $705.64 - if the case resulted in recovery.
¶11 Respondent then pursued a conclusion to the medical malpractice case for Ms. Miller. On April 28, 2015, he was able to reach a settlement agreement with OUMC for $75,000, and with the doctors, Pappy, Abedin, Dernaika, and Johnson (Pappy, et al.), for $7,000 "in verified litigation expenses." The agreements were initially handwritten and both agreements were executed by Ms. Miller personally. Doctors Barnes and Plaxico did not participate in the initial settlement agreement and the claims against them remained unresolved.
¶12 On May 3, 2015, Respondent and Ms. Miller executed a second attorney-client contractual agreement whereby the attorney fees due to Respondent was amended to 40% rather than 50% in the original agreement. The new amended section in the second contractual agreement stated that the Respondent would receive no more than 40% of the client's recovery and 10% would remain in escrow in order to satisfy the two attorney liens of Van Meter and Gould. If after the satisfaction of all lien claimants, there was still a remainder in the 10% withheld for escrow, that amount would go to the client. Ms. Miller disputes this explanation, alleging the second agreement specified 60% go to her rather than the initial 50%.
¶13 On August 31, 2015, a formal release of OUMC's medical claim was completed and executed in order to finalize the settlement agreement that was reached with OUMC on April 28, 2015. The forms were sent directly to Ms. Miller by email and she was able to sign the documents and return the same by fax.
¶14 When Respondent received the settlement check of $75,000 from OUMC on September 21, 2015, he endorsed the check with both his name and Ms. Miller's name as the check was made out to both of them. Respondent alleges that he signed Ms. Miller's name with her consent. He then deposited the check into his operating account. On September 23rd, Respondent sent a cashier's check to Ms. Miller in the amount of $22,594.56 drawn from his operating account and he contends that he sent a settlement statement along with the check. Ms. Miller alleges that she never received the settlement statement. Ms. Miller received the check in the amount of $22,594.56, leaving in escrow $11,863.43, for a potential CMS Medicare claim, and *235$3,042.01 for a potential Oklahoma Healthcare Authority (OHCA) claim, thus totaling $37,500.00, or 50% of the settlement paid.
¶15 In November and December of 2015, both CMS Medicare and OHCA waived their lien rights and Respondent proceeded to issue checks in the amounts of $11,863.43 and $3,042.01 to Ms. Miller representing their respective lien amounts. This brought the total amount of funds disbursed to Ms. Miller to $37,500.00 or 50% of the OUMC settlement amount.
¶16 The formal release of claims against Pappy, et al. (excluding Barnes and Plaxico), was signed by Respondent (using Ms. Miller's name) and the "signature" was caused to be notarized by Respondent on September 17, 2015. Respondent admits that he tried to replicate Ms. Miller's signature as close as possible before having it notarized. Respondent also admits that he had no power of attorney or other legal authority authorizing him to sign this agreement using Ms. Miller's name. However, Respondent alleges that he did have oral authorization to execute the formal release. However, Ms. Miller contended that she did not give Respondent permission to sign this formal release of claims against Pappy, et al.
¶17 On September 21, 2015, Respondent received and deposited a check made out to him from Pappy, et al., in the amount of $3,320.03, for his litigation expenses with these defendants. In both settlements (OUMC and Pappy, et al.), Respondent acknowledges that he commingled trust funds with his personal funds, knowing that it was inappropriate and thus violated RGDP rules 1.15 and 8.4(a).
¶18 On November 2, 2015, Ms. Miller's claim against Defendant Plaxico was dismissed with prejudice.
¶19 In early December of 2015, Ms. Miller called Respondent, agreeing to accept a settlement offer from Barnes. Then, on December 4, 2015, Ms. Miller subsequently attempted by email to retract the decision to agree to settle. On December 9, 2015, Ms. Miller emailed Respondent to ask if the Barnes settlement check would have her name on it. Following that, on January 6, 2016, Ms. Miller emailed Respondent again to tell him not to dismiss her case against Barnes. Later, on August 1, 2016, Barnes filed a motion to enforce settlement and the district court held a hearing regarding enforcement of the Barnes' settlement on October 28, 2016. The court concluded that the settlement agreement was valid and should be enforced because Respondent had both actual and apparent authority from Ms. Miller to accept the settlement offer from Barnes.
PROCEDURAL HISTORY
¶20 Ms. Miller filed a formal complaint with the OBA against Respondent on January 26, 2016, alleging multiple infractions of attorney misconduct. Ms. Miller terminated Respondent's representation in the spring of 2016. On September 8, 2016, Respondent filed a Motion for Substitution of Plaintiff's Counsel as Ms. Miller's attorney of record and the Order Allowing Withdrawal was issued on September 21, 2016.
¶21 The OBA formally opened a complaint and the PRT Trial Panel initiated a hearing February 2, 2017, to assess the complaints of Ms. Miller against Respondent. Though a substantial number of Exhibits were introduced, the sole witness heard from at the hearing was Respondent. The PRT Report was issued April 21, 2017.
¶22 Complainant agrees that all of the monies due to the client and all lien claimants have now been properly allocated. Respondent directly compensated his client within days of receiving settlement funds or lien releases (from Medicare and OHCA). However, Respondent failed to promptly notify the attorney lien claimant, Mr. Van Meter, or claim holder, Mr. Gould, of settlements in a timely manner, thus delaying the payments owed to them from the settlements. In fact, as Complainant points out, Respondent's total balance in his operating account on December 23, 2015, after full payments had already been disbursed to his client, Ms. Miller, was only $300.08. Claims from neither Gould or Van Meter had been satisfied at that point. Gould received payment from Respondent for the $705.64 owed to him on February 26, 2016. Respondent settled the payment due to Mr. Van Meter on September *23629, 2016, for $7,500.00 plus any fees attained in the Barnes settlement.
DISCUSSION
¶23 Rationale for the "disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, those of the judiciary and of the legal profession." State ex rel. Okla. Bar Ass'n v. Combs,
¶24 When we examine the actions taken by Respondent in the case before us, we hold that Respondent violated ORPC Rule 1.15 when he initially and subsequently received settlement checks from the defendants and deposited each into his operating account, a clear violation of the rules of professional conduct resulting in commingling of client funds and personal funds. Respondent acknowledges this violation and accepts full responsibility for it. We evaluate a commingling infraction based on three different levels of culpability, those being (1) commingling, (2) simple conversion, and (3) misappropriation or theft by conversion; each of which must be proven by clear and convincing evidence. State ex rel. Okla. Bar Ass'n v. Combs,
¶25 Respondent's actions were also a violation of ORPC Rules 8.4(a) and (c). The PRT Report found that Respondent violated Rule 8.4(c) when he endorsed the Formal Release of Claims for the Pappy, et al. settlement, signing his client's name. Although he claimed that the signature was done with his client's permission, she disputed that fact. But more seriously, he acknowledged that after he signed the settlement agreement, he caused that signature of his client's name to be notarized, and by his admission, attempted to make the signature look as much as possible to the client's signature. Though Respondent claimed to have had the client's oral consent to effect the signature, his actions reveal that it was not, at the very least, in accord with legal procedures. He admitted that he no power of attorney or other legal authorization to sign his client's name.
¶26 We have reviewed all cited authority and arguments by Complainant and Respondent in this action. After a thorough review of the arguments, we must determine the necessary discipline here based upon similar infractions and previous assessments for those violations by this Court. In a review of that authority, we find several cases persuasive in determining Respondent's appropriate discipline and effective remedy. The cases that we find most persuasive and analogous to the instant case are State ex rel. Okla. Bar Ass'n v. Combs,
¶27 In Combs, the respondent was held to have committed, and that he admitted to, were violations of ORPC Rules 1.15 (mishandling funds) and 8.4(a) (professional misconduct), *237as well as RGDP Rules 1.3 and 1.4(b).
¶28 Another recent case decided by this Court involved a respondent who was charged with, and admitted to, fraudulently acknowledging a legal document and causing improper notarization of same. State ex rel. Okla. Bar Ass'n v. Jaques,
¶29 The Parsons case involved a respondent who, when settling a personal injury case, not only endorsed the two settlement checks without notifying an interested third party (medical provider), but also failed to ever notify the interested party for years, distributing the proceeds of the two settlement checks between himself and his client. State ex rel. Okla. Bar Ass'n v. Parsons,
¶30 In summary, we agree with the PRT finding in this case that there was no clear and convincing evidence that Respondent violated ORPC Rules 1.1,1.3,1.4, or 1.5. The cases cited in support of this proposition along with the evidence and testimony do not support such a finding. Respondent's competency, diligence, communication with client, and assessment of fees were disputed. For example, Respondent was able to achieve a far better settlement than her original attorney, Van Meter, was able to achieve and, there is no evidence of lack of diligence and disputed evidence at best as to any communication or fee arrangement failures. What is supported by the evidence, is a violation of ORPC Rule 1.15 (Safekeeping Property). When Respondent deposited checks into his operating account, he by definition, violated this rule. In fact he never used his trust account, if it was even active, at any time during the case.
¶31 There is also no question that Respondent violated ORPC Rules 8.4(a) and (c). The more serious violation here is 8.4(c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Respondent here acknowledged that he endorsed the settlement agreement with Pappy, *238et al. with his client's name, attempting to make it look like his client's signature, and then having that signature notarized. Though he claimed to have oral consent to do this, he acknowledged that he did not have any legal written authority to do it and his client disputes the oral consent. However, the fact that he acknowledges trying to replicate his client's signature for notarization established an attempt at misrepresentation.
¶32 Assessing Respondent's actions and professional conduct violations, we must keep in mind that the disciplinary process is not designed to punish the lawyer but to safeguard the interests of the public, judiciary and the profession itself. Combs,
MITIGATING FACTORS
¶33 Respondent's client and the other interested parties were made whole by Respondent. There was no involvement of the OBA Client Security Fund in order to accomplish this result. It was noted in the record that Respondent had no previous reprimands or complaints filed prior to this case and Respondent discontinued the practice of law immediately following the case. As was acknowledged in the PRT Report and by the Complainant, Respondent was at all times cooperative with the investigation into this complaint against him. Respondent willingly acknowledged mistakes made and showed remorse for his actions. While these mitigating factors do not excuse Respondent's violations of the rules of professional misconduct, they are to be considered when determining the appropriate discipline required. It is also noted that the client benefitted because Respondent was able to achieve a recovery that was more than 3 times higher than the prior settlement offer. Again, this does not excuse, but is a consideration, when meting out discipline. His actions displayed no purposeful intent to deceive the client or other interested parties. See Combs ¶ 19,
CONCLUSION
¶34 After a thorough review of the record, the Court concludes that Respondent violated ORPC Rules 1.15 and 8.4(a) and (c). These serious violations of the rules of professional conduct require requisite disciplinary action. Upon consideration of these violations found by clear and convincing evidence, and giving due consideration to the mitigating factors tendered,
RESPONDENT IS ORDERED DISCIPLINED (1) BY SUSPENSION FOR A PERIOD OF NINETY DAYS AND (2) BY IMPOSITION OF COSTS OF THIS PROCEEDING IN THE AMOUNT OF $2,136.39, WHOSE PAYMENT SHALL BE DUE NO LATER THAN ONE HUNDRED TWENTY DAYS AFTER THIS DECISION BECOMES FINAL.
VOTE: Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson and Colbert, JJ., concur;
Combs, J., dissent.
The record consists of the Complaint, Answer, transcript of the PRT Hearing, Report of the Trial Panel, Complainant's Brief in Chief, Respondent's Brief in Chief, Exhibits Not Under Protective Order, and Exhibits Under Protective Order.
The Rules Governing Disciplinary Proceedings are found at
"The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court."
The Oklahoma Rules Governing Disciplinary Proceedings are found in
Rule 1.15 - Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the written consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) 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 agreement 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.
(e) When in connection with a representation, a lawyer possesses funds or other property in which both the lawyer and another person claim interests, the funds or other property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved, and the undisputed portion of the funds shall be promptly distributed.
Rule 8.4 - Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Rule 1.1 - Competency
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Rule 1.3 - Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4 - Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 1.5 - Fees
(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
Dissenting Opinion
"I would suspend Mr. Withers for one (1) year."