*1 OK ex rel. OKLAHOMA of Oklahoma STATE ASSOCIATION, Complainant,

BAR STILWELL, Respondent. No.

SCBD

Supreme Court of Oklahoma.

Dec. Rehearing on Denial of

As Corrected 8, 1999.

March

FACTS Benjamin Clayton 2 In 1980 re Stilwell, Judge pri tained who was then in practice, represent Clayton vate to in a di wife, against Lynn vorce action his Patricia Clayton. Clayton testified that she ac Clayton companied appointment Mr. to the Clayton Judge Mr. had made with “just going sign” and that she was to Clayton waiver for the divorce. Mrs. had agreed paid of the divorce and terms Judge Clay to on behalf of Mr. $230 ton, which to she had borrow from her moth er, because neither she nor her husband had Welch, Association, Allen J. Oklahoma Bar money pay Judge Stilwell’s fee. The City, Oklahoma, Attorney Clayton Trial Panel found that Mrs. was not Complainant. represented by Judge Stilwell. At the hear asked, ing Clayton your, opin “And Snow, Mattingly, Mattingly Jack & Semi- ion, then, you back in ever establish nole, Oklahoma, Attorney Respondent. relationship with Mr. Stil- answered, Clayton well?” Mrs. “No sir.” WATT, J. finding The Bar resists the Trial Panel’s on independent this score but our review of the ¶ 1 This matter is here for consideration transcript before the Trial report of a of a Trial Panel of the Profession- Panel convinces us that the Trial Panel’s Responsibility al recommending Tribunal Judge represented only complaint against Respondent, that the Clayton, and not Mrs. was cor Stilwell, be dismissed he be relieved of rect. any obligation pay Respondent costs. Clayton 3 Mrs. testified that she currently Judge Associate in District Semi- thought she signed was divorced after she County, nole Oklahoma. The Oklahoma Bar gave Judge the waiver and it to Stilwell. complaint against Association Judge filed was, however, Clayton’s The fact that Mr. Stilwell for conduct that occurred petition for divorce was never filed. Mr. and while private practice Stilwell was in Clayton both remarried. 1983 Mrs. Hughes County. The Bar’s al- Clayton Smith, a Mr. married who is both leged Stilwell had violated the company minister, employee oil and a following Governing Disciplinary Rules Pro- they They have had two children. live in (failure (fail- competence), cedure: 1.1 1.3 Payne County. diligence), (improperly causing ure an- person other to contact a he knew to be sought Sometime in Mrs. Smith (conduct counsel), 8.4(c) represented by in- copy of her decree of divorce from Mr. fraud, volving deceit), dishonesty, or and Clayton because she needed it in order to 8.4(d) (conduct prejudicial to the administra- qualify for mission work in her church. She justice). subsequently tion The Bar with- Hughes County was advised Court competence drew its diligence claims Clerk that no granting decree her a divorce (Rules 1.3). 1.1 and In its brief the Bar Hughes County. was on file Mrs. Smith withdrew its claim that Stilwell violat- then called him and informed 8.4(c). Thus, only ed Rule issues remain- problem. Judge of her promised ing for determination are whether check to if see he still old file. Stilwell violated either Rule 4.2 or Rule Judge Stilwell found the file and told Mrs. 8.4(d). We hold that Stilwell did not petition Smith for divorce had never violate either rule. been filed. Stilwell, purposes. Fur Butner for her own contact Before she contacted undisputed that Mrs. Smith had not problem ther it is her with had discussed

Mrs. Smith by Boyce time required at the Boyce, paid the lawyer, who Payne County $500 William Thus, met with Stilwell. Mrs. Smith retainer to require would $500 that he said knew or nor Butner neither Mrs. Smith then a divorce for her. secure *3 reason to know that Mrs. Smith to and asked him Judge Stilwell called on by Boyce Judge divorce, represented when Stilwell to do he declined pay her which Mrs. that she see recommended to Smith college. Mrs. he had children because disciplinary proceedings, Butner. In Bar apologized Judge that Stilwell testified Smith juris original this exercises exclusive plight. Judge Court for her several occasions on court, licensing the ultimate and probable reason diction explained that the Stilwell deciding miscon responsibility for whether never filed was that petition was the divorce rests with this Court. away he duct has occurred inadvertently packed when it was Bar Ass’n. Gasa State ex rel. Oklahoma to Holden- his office from Wetumka moved P.2d 826. “Before we Judge way, 1991 OK undisputed that The record is ville. upon attorney, the may impose discipline completely honest with Mrs. by charges established clear and must be Smith, attempted shift the blame for never to ¶ 9, 33 at anyone convincing evidence.” 1991 OK action to failure to file the divorce his Judge charge that give P.2d 826. As the else, attempt to Mrs. and made no proved by 4.2 was not clear and violated Rule any legal advice. Smith evidence, that it should convincing we hold meeting In with Mrs. Smith at the a be dismissed. courthouse, County Judge Stilwell Seminole lawyer, George But- Mrs. that a told Smith reject the Bar’s contention 8 We ner, the street from whose office was across to that Mrs. Smith’s statement courthouse, might to advise Mrs. be able that established that she “had” Mr. Butner. She Mrs. Smith did see Smith. law, by was, represented a matter of she as thought because she that she did so testified concluded, Mrs. the Trial Panel counsel. As if Butner handled the “it be easier” would that to Smith’s statement Nevertheless, when Mrs. Smith saw divorce. supported the a retainer Boyce required $500 not ask him to handle Butner she did by Judge from Mrs. inference drawn did, however, Butner ask for her. divorce yet had not re statement that she Smith’s $230, originally to Judge Stilwell return lawyer. The correctness Boyce tained as her by in 1980. mother advanced Smith’s if is made clear one asks of this conclusion fee. then refunded the $230 self, obligation Boyce have one’s “What paid him the before she

toward Smith is, DISCUSSION answer required?” he The retainer $500 clearly, “None.” ¶7 Panel found that The Trial that Panel also concluded convincing 9 The Trial evidence there was no clear and support finding that a the evidence did support that Stilwell had (d) 8.4(c) had been violated.2 Rule Rules of Profes Rule violated that was no evidence Trial Panel found there Trial Panel so conclud Conduct.1 The sional finding that believe, support ed, evi the record correctly because the we dishonest, was either to Stilwell’s conduct that Mrs. Smith decided dence showed (d) 8.4(c) provide: 2. Rule provides: 1. Rule 4.2 By Represented With Person Communication lawyer professional to: misconduct for It is Counsel lawyer not com- representing a client a shall dishonesty (c) involving fraud engage in conduct cause another to communicate municate or misrepresentation; deceit or representation subject with a about (d) prejudicial to the engage in conduct that is represented by party lawyer knows to be justice; administration lawyer lawyer unless the another in the matter lawyer or autho- of the other has the consent by rized law to do so. fraudulent, prejudicial party any legal administra- and his com- justice. Everything tion of that improper. Stil- munication with her was not truthful, well told Mrs. Smith was and Mrs. 1M4 The Bar’s sole basis for its claim open Smith conceded that he was and honest 8.4(d) that Rule Stilwell violated is its with her. contention that he violated 4.2. Rule candidly 10 The Bar admits that attorney-client relationship Stilwell had no 8.4(c) correctly Trial Panel found that Rule Smith, with Mrs. and there is no reason to however, claims, was not violated. The Bar undisputed testimony disbelieve his that his Stilwell violated Rules actions were not motivated concerns 8.4(d). The Bar contends that the record might malpractice Smith assert claim represented by shows Mrs. Smith was or a to the Bar or the Council on Boyce “potential- and had interests that were Complaints. Judicial Thus there is no basis *4 ly distinct” from The Bar Stilwell’s. holding that violated Rule potential claims that Mrs. Smith had mal- By theory, 4.2. the Bar’s own its claim that practice against Judge claim Stilwell and that 8.4(d) Judge Stilwell violated Rule fails be- complain he feared she would Bar to the cause its claim that he violated Rule 4.2 fails. Thus, complaints. to the Council Judicial ¶ 15 We fail to understand the dissents Bar, Judge claims the violated both position Clay- that Stilwell owed Mrs. 8.4(d) Rule 4.2 and Rule because violation of (1) duty despite ton Smith a the facts that prejudicial rule constitutes conduct to the record establishes that Stilwell did justice. administration of (2) represent rep- her and reject 11 We the Bar’s contention potentially resented Mr. who had a First, for two reasons. the record does not relationship adversarial with his wife. We support the Bar’s claim that apparent sympathy share the dissent’s knew or should have known Mrs. Smith was Nevertheless, may Mrs. Smith. we not use Second, represented by counsel. the record sympathy our impose as an excuse to disci- support fails to the Bar’s contention that pline where none is warranted. anything Stilwell had to fear from a malpractice by claim Mrs. Smith or from applied 16 The Bar has also for assess- complaints by her to the Bar Oklahoma Asso ment of in costs this matter. Because of our Complaints. ciation or the Council on Judicial matter, dismissal of the and the Trial Panel’s assessed, recommendation that no costs be hearing Judge 12 At the Stilwell testi- application the Bar’s for costs is denied. malpractice fied that he “never [a considered possibility,” claim Smith] and “I DISMISSED; COMPLAINT APPLICA- really don’t think I considered that.” With TION FOR ASSESSMENT DE- OF COSTS respect danger complaint, of a Bar NIED. testified, Judge Stilwell “I didn’t consider that.” When asked if he was worried about a ' SUMMERS, V.C.J., HODGES, J., and complaint testified, Judicial (In TAYLOR, STUBBLEFIELD and S.JJ. “Again, I never considered it.” The Bar’s WILSON, Lieu of HARGRAVE and ALMA claim that Stilwell was concerned Disqualification)— JJ. Who Certified their claim, malpractice about a or a Bar or Judi- concur. cial supported by is not the testi- mony in the record. KAUGER, C.J., LAVENDER, SIMMS, ¶ 13 The Bar claims this case should OPALA, part, and in JJ. —concur in dissent governed by be State ex rel. Oklahoma Bar part. Eakin, 106, Ass’n. v. 1995 OK 914 P.2d 644. ¶ KAUGER, 1 concurring part C.J. Eakin, we judge under Rule dissenting part and with whom LAVEN- 8.4(c) (d) pattern parte based on a of ex DER, OPALA, join: SIMMS and JJ. party communication with a to a which pending My before majority opinion his court. There concern with the is no similar conduct here. literally, Smith was not is its over-broadness —read discipline complainant before will result —a proposition that there for the opinion stands position contrary to Rule Rules Govern- filing contract before the privity must O.S.1991, Proceedings, ing Disciplinary Ch. imposition of complaint will lead to the of a law,3 1, 1-A,2 App. case and extant discipline. jurisprudence.4 ¶3 majority point in the pivotal attorney-client rela- opinion is the lack of an party complaining

tionship between the respondent, [Stil- and the

[wife] majority reading of the A literal

well].1

opinion privity of contract indicates

must exist between provides attending Paragraph majority opinion circumstances sit [Whenever 2 of the ordinarily prudent person are pertinent part: uation such that, reasonably apprehend could as natural Clayton that Mrs. .. The Trial Panel found act, probable consequence of his another represented by Judge At the Stilwell. was not danger receiving injury, duty asked, person will be in Clayton your, ‘And injury ordinary prevent then, exercise care to such you opinion, back in ever es- Touche, Corp. v. 255 N.Y. relationship arises.]. Ultramares tablish an with answered, was cited in Clayton 174 N.E. 441 ‘No sir.’ Stilwell?’ Bradford. doing, on this In so the Court stated: The Bar resists the Trial Panel’s *5 independent review of the tran- score but our Having privity "... determined that has no script Trial Panel before the applicability law of Oklahoma in the under the the Panel’s convinces us that Trial tort, apprehen- the of we hold that while realm only Clayton, represented expressed may may or not sions Ultramares and not Mrs. was correct." telling argument the harm be a as to whether 1.3, Governing Disciplinary Pro- particular plaintiff 2. Rule Rules was foreseeable to the to a O.S.1991, 1, ceedings, App. provides: defendant, 5 Ch. 1-A relegated significance their is proximate foreseeability lawyer any as it relates to cause by any of act "The commission conduct, only light....” prescribed considered in that contrary must be standards Bradford, professional ca- the announced in the whether in the course of his Under standards otherwise, pacity, reason- respondent or which act would knew should have known that or legal ably bring upon likely discredit leaving be found to to leave the the case in limbo was grounds disciplinary profession, shall be an condition and creat- wife’s status in uncertain action, felony or whether or not the act is bigamous ed the likelihood of a alliance. misdemeanor, at all. Conviction in crime prece- is not a condition a criminal following 4.Discipline imposed cases was imposition discipline." dent to the attorney-client despite relation the lack of an Schultz, 386, ship. Bar v. 712 So.2d 388 Florida Flanery, Bar Ass’n v. 3. State ex rel. Oklahoma (1998) failing [Attorneys may be 97, 1146, [Recognizing OK 863 P.2d 1150 1993 transac essential matters business to disclose relationship lawyer-client no that there been attorney- nonclients where there no tions with attorney injured parties and the between the Calvo, v. 630 relationship.]; Florida Bar client complained be that all the conduct of occurred 548, (Fla. 1994) [Attorneys may So.2d 549 licensed, attorney attorney fore the failing obligations to honor excused from family from for embezzlement of funds disbarred public large.]; State Bar Ass’n v. at Louisiana members.]; Bar v. State ex rel. Oklahoma Ass’n Perez, 188, (La.1989) [Although 550 So.2d 190 39, 262, Raskin, [Recog OK 642 P.2d 265 1982 rela the case did not involve nizing procedures against a dishonest law withdrawing attorney tionship, was disbarred for upon injured party’s yer com need not rest appointed to an account he had been funds from jurisdiction plaint lies even in causes Grimble, inventory notary public.]; Matter of originate complaint with the did not where 448, 594, lack of an [The 759 P.2d 598 157 Ariz. attorney.]; State ex rel. client of the accused attorney-client relationship will not excuse 28, Brandon, OK Bar Ass’n v. 1969 discipline.]; Dowling attorney v. Alabama from 824, occurring before the [Conduct P.2d 827 450 Bar, 149, (Ala.1988), cert. 539 So.2d 153 State denied, attorney in which individual became —and 2102, 1081, S.Ct. 490 U.S. attorney-client relationship there was no —was (1988) censure of an attor [Public L.Ed.2d 663 suspend the under disci sufficient distributing misleading campaign materi ney for substantially Rule plinary similar to rules upheld. did not come from als Governing Disciplinary Proceedings, 5 Rules O.S.1991, 2, anonymous 1, 1-A, attorney but was filed supra.]. client of the App. Ch. see note 171, Serv., also, Kersting, 726 P.2d ly.]; 151 Ariz. Processing Matter of See Securities Bradford 587, Trust, lawyer may [Finding vio- that a P.2d Bank & 1982 OK 653 Inc. v. Plaza 1998 OK 123 ex rel.

STATE Oklahoma OKLAHOMA ASSOCIATION, Complainant,

BAR

Danny Ray BROWN, Respondent. No. 4333.

SCBD

Supreme Court of Oklahoma.

Dec. 1998.

Rehearing Denied Feb. *6 also, 773 P.2d 751.

See els, obligations though ethical íate his even there is 422 Mich. 373 N.W.2d 528 [At torneys may no breach of contract and that rules of ethical for activities unrelat apply only practice arising conduct do not in the ed to the of law and outside the relationship.]; attorney-client relationship.]. Grievance Administrator v. Nick