State ex rel. Oklahoma Bar Ass'n v. Kinsey

Decision Date12 May 2009
Docket NumberNo. SCBD-5448.,SCBD-5448.
Citation2009 OK 31,212 P.3d 1186
PartiesSTATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Leah McCaslin KINSEY, Respondent.
CourtOklahoma Supreme Court

¶ 0 The Oklahoma Bar Association filed a single count complaint against Leah McCaslin Kinsey alleging she violated Rules 1.5, 1.15, and 8.4(a), (b), and (c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A, and Rule 1.3 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, ch. 1, app. 1-A, when she repeatedly caused clients to be billed for work she did not perform and claimed travel expenses she did not incur. Kinsey admitted she submitted false claims of work and travel to her law firm. A panel of the Professional Responsibility Tribunal concluded that Kinsey violated Rules 1.5 and 8.4(a) and (c) of the Oklahoma Rules of Professional Conduct and Rule 1.3 of the Rules Governing Disciplinary Proceedings and recommended that she should be 1) suspended from the practice of law for a period of twelve months from the date of the panel's report, 2) required to receive psychological treatment, and 3) assessed costs associated with the disciplinary proceedings. We conclude that the record is sufficient for our de novo inquiry and that Kinsey's professional misconduct is established by clear and convincing evidence. We determine the appropriate discipline is suspension for a period of twelve months from the date this opinion becomes final, and we assess the costs to be paid by Kinsey within ninety days from the date this opinion becomes final.

RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR TWELVE MONTHS FROM THE DATE THIS OPINION BECOMES FINAL; RESPONDENT IS ORDERED TO PAY COSTS WITHIN NINETY DAYS FROM THE DATE THIS OPINION BECOMES FINAL.

Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complainant.

Leah McCaslin Kinsey, respondent, pro se.

TAYLOR, V.C.J.

¶ 1 In this attorney disciplinary proceeding, we must decide whether the record is sufficient for our de novo consideration of the alleged professional misconduct, whether professional misconduct is established by clear and convincing evidence, and whether a twelve-month suspension is appropriate discipline. We conclude that the record is sufficient for our de novo inquiry, that there is clear and convincing evidence of professional misconduct, and that the appropriate discipline is suspension for a period of twelve months from the date this opinion becomes final.

I. Facts and Proceedings

¶ 2 On October 13, 2008, a trial panel of the Professional Responsibility Tribunal of the Oklahoma Bar Association (PRT), conducted an evidentiary hearing on the complaint filed by the Oklahoma Bar Association (Bar Association) against Leah McCaslin Kinsey (Kinsey), OBA No. 16688, alleging violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, ch. 1, app. 3-A, and the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, ch. 1, app. 1-A. The PRT's record (record) reveals the following facts and proceedings.

¶ 3 Kinsey was admitted to membership in the Bar Association in September of 1995. Kinsey worked as an associate attorney on salary with the law firm of Richards, Paul, Richards & Siegel (Paul Law Firm) from October of 1995 until her resignation from the firm on January 31, 2008. During the time of the alleged professional misconduct, Kinsey worked directly for attorney John R. Paul.

¶ 4 In June of 2008, John R. Paul and Kinsey prepared and jointly submitted an ethics report on Kinsey to the general counsel of the Bar Association. According to the report, John R. Paul consulted with his firm's counsel and the ethics counsel at the Bar Association and determined that the ethics report should be made to the Bar Association.1 The substance of the report reads:

In early 2008, John R. Paul asked Ms. Kinsey about an apparent billing irregularity. The next day it was confirmed by Ms. Kinsey that she had been turning in time and expense reports on cases for clients of the law firm, which time and expenses were false. Ms. Kinsey having admitted to these false submittals resigned her employment from the law firm effective January 31, 2008.

An audit by the law firm confirmed that on 13 occasions, Ms. Kinsey turned in time entries to be billed to clients, for trips made out of town including preparation time and work done, when that work was not performed. Further, as these time entries involved out of town travel, Ms. Kinsey also turned in expense reimbursement requests, for reimbursement to her of alleged mileage/tolls/travel expenses. Ms. Kinsey has confirmed that these time and expense entries were not in fact incurred.

The law firm has credited/reimbursed to the clients the time and travel reports turned in by Ms. Kinsey for that time/expense it has determined to be was (sic) false. The total amount of that reimbursement was $15,697.70. Of this amount, $2,072.70 was for travel related expenses that had been paid by the firm to Ms. Kinsey. A request was made by the Paul Law Firm that Ms. Kinsey return those expense funds and she has paid back to the firm the amount of those travel related expenses of $2,072.70.

¶ 5 The Bar Association treated the ethics report on Kinsey as a grievance by John R. Paul, opened a formal investigation, and gave notice thereof to John R. Paul and Kinsey by letters dated June 24, 2008.2 Kinsey responded to the grievance by letter dated July 11, 2008.3

¶ 6 In her response, Kinsey stated that she did not dispute any facts in the grievance, that she takes full responsibility for her improper actions, and that she wanted to provide background information for a better understanding of her situation. Kinsey explained that she is a perfectionist with high expectations of herself and that she encountered various stress-generating circumstances during the time she made false billing and travel claims to the Paul Law Firm. Those stressful circumstances included her job as an associate attorney, her children (a kindergartner and an infant), her family's need to change residences (move to a larger residence), her husband's unexpected loss of employment, and her need for personal time.

¶ 7 The Bar Association requested documentation of the false time billings and expense claims. By letter dated July 24, 2008, John R. Paul documented thirteen occasions over a period of about fifteen months that Kinsey turned in time entries to be billed to clients for trips made out of town, including preparation time and work done, when the trips were not made and the work was not performed. On August 25, 2008, the Bar Association filed the Rule 64 complaint against Kinsey.

¶ 8 The complaint alleged that from August 16, 2006, until November 16, 2007, Kinsey turned in false and fraudulent billing and travel expenses on thirteen occasions that were billed to clients in the total amount of $15,697.70, of which $2,072.70 was paid directly to Kinsey for travel expenses and that Kinsey's conduct violated Rule 1.55 of the ORPC (by charging unreasonable fees and expenses); Rule 1.156 (by failing to protect client property); Rule 8.4(a), (b), and (c)7 of the ORPC (by engaging in dishonest acts that reflect adversely on the lawyer); and Rule 1.38 of the RGDP (by discrediting the legal profession). On September 12, 2008, Kinsey filed an answer to the complaint specifically admitting that the allegations of false and fraudulent billing and travel expense claims were true, specifically answering that she would schedule a false appointment without informing the Paul Law Firm in order to arrange a day off and then submit false billing and expense reports for these false appointments, specifically admitting that her conduct violated the ORPC and the RGDP, and asking for a private reprimand.

¶ 9 At the hearing before the PRT, the Bar Association and Kinsey jointly offered and the PRT admitted into the record the above-identified materials and filings. The parties also offered and the PRT admitted into the record the parties' stipulations that if John R. Paul appeared as a witness, he would testify that 1) Kinsey is a good attorney, 2) he would not have filed the ethics report except for advice of counsel, 3) he was shocked to hear about the false billing and travel claims which were out of character for Kinsey, 4) he does not believe discipline is warranted, and 5) Kinsey has taken full responsibility for her actions, has cooperated in the internal audit and transfer of caseload, and has made full restitution of the $2,072.70 in false travel claims. The parties also offered and the PRT admitted into the record the parties' stipulations that the following are mitigating factors: 1) Kinsey has accepted full responsibility for her misconduct, 2) Kinsey has expressed remorse for her actions and the harm she has brought to the reputation of the Bar Association, 3) Kinsey has been a licensed attorney in good standing since 1995, 4) this is the first and only grievance against Kinsey and she has never been disciplined for any previous misconduct, 5) Kinsey joined her employer in reporting her misconduct, 6) the firm's clients did not file any grievance against Kinsey, and 7) Kinsey has imposed a "self-suspension" since her resignation from the Paul Law Firm on January 31, 2008. The PRT also admitted into the record a "To whom it may concern" sworn letter from Dianne Baxter on behalf of herself and Nathan Baxter, Executive Pastor, Liberty Church in Broken Arrow, Oklahoma, stating that Kinsey sought their counsel when she realized "she had made a serious judgment in error" and expressing their support for Kinsey.

¶ 10 The Bar Association waived opening statements before the PRT except to recognize that Kinsey has cooperated fully with the Bar Association and the Paul Law Firm, that Kinsey admitted her misconduct was a huge mistake, and that Kinsey...

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