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

• Decision Date: 13 March 2001
• Docket Number: No. OBAD-1416., No. SCBD-4488
• Citation: 2001 OK 26,23 P.3d 268
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Eric B. BOLUSKY, Respondent.
• Court: Oklahoma Supreme Court

23 P.3d 268

2001 OK 26

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Eric B. BOLUSKY, Respondent.

Nos. SCBD-4488, OBAD-1416.

Supreme Court of Oklahoma.

March 13, 2001.

Rehearing Denied April 23, 2001.

Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complainant.

Eric B. Bolusky, pro se, Tulsa, OK, for respondent.

SUMMERS, J.

¶ 1 The Oklahoma Bar Association filed a complaint in this Court alleging that Respondent, Eric B. Bolusky, committed certain acts that violated the Rules of Professional Conduct, 5 O.S.1991 Ch. 1, App. 3-A, and Rule 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.1991 Ch. 1, App. 1-A. The Bar Association struck some of the allegations before the trial panel, Respondent and Bar Association stipulated to some of the facts, and they stipulated that Respondent violated certain rules. A hearing was held before a trial panel of the Professional Responsibility Tribunal. The trial panel recommended a suspension of two years and one day. Respondent states that the proper discipline is either reprimand, public censure, or a short suspension. Counsel for the Bar urges disbarment. We suspend Respondent for two years and one day beginning on the date this opinion is final.

Count I

¶ 2 In 1992 Respondent was hired by Wayne Morgan to file and prosecute a suit based upon a loss of property at the hands of his landlord. The case was dismissed in 1996 for failure to prosecute and respond to discovery, but the dismissal was thereafter caused to be vacated by Respondent. A scheduling order issued in 1997, and Respondent failed to comply with its deadlines. Respondent declined to promptly comply with client's requests for information on the status of the case. Respondent told Morgan of hearing dates that were imminent, but this was not true. Morgan delivered to Respondent an inventory and photographs of personal property to be used in the case.

¶ 3 In 1998 Morgan requested how much it would cost to get the information returned. Respondent replied that he would "think about it" and "get back to him", but he never did. Morgan hired another lawyer. In October 1998 Morgan's new lawyer sent a certified letter to Respondent requesting that Morgan's file be given to him. After the Bar deposed Respondent on this matter in 1999 he provided the file to Morgan's lawyer.

¶ 4 The Bar argues that Respondent's conduct violated Rules 1.1, 1.3, 1.4, 1.16(d) and 8.4(c) of the Rules of Professional Conduct, 5 O.S.1991 Ch. 1, App. 3-A.¹ In State ex rel. Oklahoma Bar Association v. Johnston,1993 OK 91, 863 P.2d 1136, we discussed these first three rules and said that:

Professional competence — acting promptly on a matter and communication with a client — is a mandatory obligation imposed upon attorneys. Albeit high, this obligation is the minimum we expect from a lawyer. It epitomizes professionalism. Anything less is a breach of a lawyer's duty to serve his client. Johnston's failure to maintain these standards — through procrastination and neglectful behavior — warrants imposition of disciplinary sanction

Id. 1993 OK 91 at ¶ 28, 863 P.2d at 1145, (note omitted).

The record shows herein that over the course of a few years Respondent failed to expedite the case, and this led to the dismissal of an action for failure to prosecute and respond to discovery. Respondent did cause that dismissal to be vacated, and his client ultimately prevailed due to the efforts of different counsel. We agree that Respondent's conduct in representing Morgan violated Rules 1.1, 1.3, and 1.4.

¶ 5 Rule 1.16 of the Rules of Professional Conduct provides in part that:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law.

Rule 1.16(d), 5 O.S.1991 Ch. 1, App. 3-A.

Respondent simply neglected to act on the request of Morgan's counsel for the return of the information and the file. Morgan eventually received compensation for his claim. The evidence is clear that Respondent knew that his representation was terminated and the new lawyer's request for the file. Respondent raised no defense for failing to deliver possession of the file. The evidence is clear that Respondent violated Rule 1.16(d).

¶ 6 Upon questioning from the Bar and trial panel members, Respondent testified that he did not withdraw from Morgan's case. The Bar introduced as evidence a certified copy of the appearance docket to show that Respondent did not withdraw after being discharged by Morgan. Rule 1.16(a)(5) requires a lawyer to withdraw if "the lawyer is discharged." Further, we have explained that a lawyer may be disciplined for failing to withdraw as required by Rule 1.16(a)(5). State ex rel. Oklahoma Bar Association v. Glass, 1992 OK 74, 832 P.2d 831, 832. However, Respondent did not stipulate to a Rule 1.16(a)(5) violation, and the Bar Association did not specifically cite Rule 1.16(a)(5) when questioning Respondent about his failure to withdraw. The trial panel made no finding or recommendation citing Rule 1.16(a)(5).

¶ 7 Findings of fact and recommendations of the Professional Responsibility Tribunal are advisory, being neither binding nor persuasive. State ex rel. Oklahoma Bar Association v. Doris, 1999 OK 94, ¶ 3, 991 P.2d 1015; State ex rel. Oklahoma Bar Association v. Arthur, 1999 OK 97, ¶ 4, 991 P.2d 1026. We may disagree with the trial panel on whether a rule was violated. See, e.g., State ex rel. Oklahoma Bar Association v. Busch, 1998 OK 103, ¶ 48, 976 P.2d 38, 55

. We review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Association v. Thomas, 1995 OK 145, ¶ 2, 911 P.2d 907, 909.

¶ 8 Although stipulations of the parties do not control this Court's application of ethical rules to a particular act of lawyer misconduct,² those allegations of fact made by the Bar Association do set certain limits for the proceeding.³ A lawyer in a disciplinary proceeding receives the protection of the Due Process Clause, and must be given notice of the allegations of misconduct, or the claims of the "opposing party". State ex rel. Oklahoma Bar Association v. Stow, 1998 OK 105, ¶¶ 19-21, 975 P.2d 869, 875; State ex rel. Oklahoma Bar Association v. Lobaugh, 1988 OK 144, 781 P.2d 806, 811. We find that no notice of a Rule 1.16(a)(5) violation was given to Respondent, and we accordingly conclude that the trial panel evidence and testimony of Respondent's failure to withdraw is insufficient to impose discipline on this ground. State ex rel. Oklahoma Bar Association v. Stow, supra; State ex rel. Oklahoma Bar Association v. Lobaugh, supra.

See State ex rel. Oklahoma Bar Association v. Brown, 1998 OK 123, ¶ 16, 990 P.2d 840, 844, where we said that we did not want to encourage allegations of misconduct being first raised at the trial panel hearing when they could have been pled in the initial complaint.

¶ 9 The parties stipulated that respondent's conduct violated Rule 8.4, and the Complaint alleges a violation of Rule 8.4(c).⁴ It is professional misconduct for a lawyer to engage in conduct involving misrepresentation. Here the misrepresentations are Respondent's assurances to his client that his case was advancing to adjudication, when in fact, it was stalled due to Respondent's inattention. When applying Rule 8.4(c) we have explained that a lawyer should not lie to his or her client concerning the status of the client's case. State ex rel. Oklahoma Bar Association v. Perry, 1997 OK 29, ¶ 28, 936 P.2d 897, 903. We find the evidence clear and convincing that Respondent violated Rule 8.4(c).

Count II

¶ 10 The Bar Association received Morgan's grievance in 1998. On November 16, 1998 the Bar requested a response from Respondent. No response was made. On December 2, 1998 another request for a response was made, with a caution that failing to respond would be grounds for discipline. No response to this letter was forthcoming, but on December 28, 1998 Respondent spoke with an investigator from the Bar and requested an additional time of two weeks to respond. No response was made within that period of time. On January 15, 1999 the Bar Association, by certified letter, requested Respondent to respond in writing to the grievance within five days. He was notified that failing to respond would result in the issuance of a subpoena. Respondent accepted the letter on January 19, 1999, and did not respond. The Bar Association caused a subpoena duces tecum to be issued and Respondent's deposition was taken on February 9, 1999.

¶ 11 Rule 5.2 of the Rules Governing Disciplinary Proceedings requires a written response to the allegations of misconduct, and the failure to answer within twenty days after service of the grievance "shall be grounds for discipline." 5 O.S.1991 Ch. 1, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 5.2: In State ex rel. Oklahoma Bar Association v. Taylor, 2000 OK 35, ¶¶ 24-25, 4 P.3d 1242, 1252, we explained that a lawyer's failure to timely answer a grievance is a violation of Rule 5.2 of the Rules Governing Disciplinary Proceedings, and a ground for imposing discipline. Respondent's failure to respond to the Morgan grievance is a violation of Rule 5.2.

Count III

¶ 12 After Respondent declined to provide a written response to Morgan's grievance he was deposed by the Bar. The Joint Stipulation states that in the deposition of February 9, 1999, Respondent testified that Morgan "had never requested the file" and that he had satisfactorily addressed new counsel's efforts to procure the file from him. The...