302 P.2d 975 | Okla. | 1956
Lead Opinion
This action involves a review by this Court of proceedings instituted by the Executive Council of the Oklahoma Bar Association- wherein charges of professional misconduct were filed against, the respondent, David W. Taylor, as provided by
Count 2 charged; that the respondent in the latter part of the year 1952; while acting as attorney for one Leo Wade in a case pending before the State Industrial Commission of this State, .which case was .entitled In the Matter of the Death of Velma Pearl Wade (Leo. Wade, Claimant v. P;aul Huff, d/b/a Pauls Drive Inn, Respondent, the Travelers Insurance Company, Insurance Carrier, No. C — 25581), received certain funds which were paid for and on behalf of said Leo Wade on Joidt Petition, in the above entitled case before the Industrial Commission and did, retain as attorney fee more than that which Was set by order of the Industrial Commission and that the respondent represented to Leo Wade that in order to make the settlement before the Industrial Commission it would be necessary for him to pay a kick-back, to some one whose name was never made known to Leo Wade and that the respondent did pay to his- client an amount of money less than was due him under the settlement. All of this conduct was alleged'to be contrary to Canons 11, 12 and 32 of the Canons of Ethics of the Oklahoma Bar Association which sections deal with the handling of the client’s fund's, the fixing of fees and the duty of a lawyer to his client.
It appears from the record that the wife of Leo Wade, Velma Pearl Wade, was employed temporarily by Paul Huff, d/b/a Pauls Drive Inn at Norman. She was taking the place of some young woman who had taken the afternoon off and while employed at this Drive Inn Velma Pearl Wade was run over by an automobile and died as a result of the injuries received. The respondent was employed by Leo Wade to represent him to recover for the death of his wife. There were two minor children, ages one and two years. The respondent .prepared a petition in common law action which was never filed and also filed a claim for Wade and the two children under the new death benefit provision of the Workmen’s Compensation Law of this State, 85 O.S.1951 § 1 et seq., before the Industrial Commission and after the lapse of some months, the claim before the State Industrial Commission was settled on Joint Petition for $9,700 and the Industrial Commission allowed $1,000 to the respondent for his attorney fee out of the $9,700. The check from the Travelers Insurance Company for $1:,000 for the fee and a check •for $8,700 to Wade and the children were sent to the respondent. The respondent had advanced to Leo Wade some money while the claim before the Industrial Commission was pending. The exact amount of these advances is in dispute. Also questioned is the sum of $500 which the respondent claimed that he gave Leo Wade in cash when the two checks from the In
Respondent thought he had two avenues of recovery for the death of Velma Pearl Wade. He elected together with his client, Leo Wade, to prosecute the claim before the State Industrial Commission. The Commission fixed his fee "at $1,000, which it had the right to do and from which order fixing his fee, Taylor did not appeal. This Court has said in Conrad v. State Industrial Commission, 181 Okl. 324, 73 P.2d 858:
“The State Industrial Commission has exclusive original jurisdiction over the fees to be allowed attorneys in proceedings before it and when the fee1 of an attorney is involved in an award he may maintain an independent proceeding in this court to obtain a review of such award in so far as his rights are affected thereby.”
We know of no law that permits an attorney to take a greater share of recovery in a, case before the Industrial Commission than that allowed by the Industrial Commission if he does. not appeal to this Court. It is clear to us that the respondent took a fee far in excess of the $1,000 that was. allowed him by the Industrial Commission and that he misled his client as to the amount of money that the client should, have been entitled to receive in the settlement.
We have read.the record and are of the opinion that the recommendation of the Executive Council of the Oklahoma Bar Association that the respondent be suspended for one year from the practice of law in the State of Oklahoma should be and is hereby approved.
Concurrence Opinion
(specially, concurring).
I agree with the majority of my associates that the record in this case supports a recommendation suspending respondent from the practice of law in this State, but it is my opinion that respondent’s suspension for -a period of six months, together with .a requirement that he pay all, of-'the costs of the case, including the attorney’s fees of the Bar Association’s counsel, would more nearly accord with justice under the particular circumstances of this case than the one-year suspension approved by the majority.
