State ex rel. Okla. Bar Ass'n v. Gaines

• Decision Date: 28 June 2016
• Docket Number: S.C.B.D. No. 6389,O.B.A.D. No. 2095
• Citation: 2016 OK 80,378 P.3d 1212
• Parties: State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Shanita Danielle Gaines, Respondent.
• Court: Oklahoma Supreme Court

378 P.3d 1212

2016 OK 80

State of Oklahoma ex rel. Oklahoma Bar Association, Complainant

v.Shanita Danielle Gaines, Respondent.

O.B.A.D. No. 2095

S.C.B.D. No. 6389

Supreme Court of Oklahoma.

FILED JUNE 28, 2016

Rehearing Denied September 12, 2016

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

No appearance for Respondent.

EDMONDSON

, J.

¶ 1 Respondent received previous attorney discipline from the State Bar of Texas, and the Oklahoma Bar Association filed a reciprocal professional discipline proceeding in this Court. The Bar Association recommends that respondent be suspended from the practice of law for two years and one day. We impose a suspension for two years and one day, and impose costs in the amount of sixty-six dollars and fifty-two cents ($66.52).

Texas State Bar Proceeding

¶ 2 In March of 2016, respondent personally appeared before an Evidentiary Panel of a Grievance Committee for the State Bar of Texas where three disciplinary cases against her were adjudicated. The Evidentiary Panel made Findings of Fact and Conclusions of Law concerning respondent's professional conduct in the three disciplinary cases. The Panel's judgment orders, adjudges and decrees “that Respondent be suspended from the practice of law for a period of two (2) years, with the suspension being fully probated ...” pursuant to the terms specified in the judgment. The panel's judgment directed it “shall be made a matter of record and appropriately published in accordance with the Texas Rules of Disciplinary Procedure.” Nothing in the record before us suggests respondent lacked a full and fair opportunity to litigate the complaints before the Texas State Bar.

¶ 3 In the first case, the panel found that respondent (1) neglected legal matters entrusted to her by failing to provide legal services, (2) failed to keep a client reasonably informed about the status of client's legal matters, and (3) failed to supervise a nonlawyer in her office in accordance with respondent's professional obligations. In the second case, the panel found that respondent (1) received settlement funds and failed to promptly notify both her client and her client's medical providers who had interests in these funds, (2) failed to promptly deliver the settlement funds to her client and her client's medical providers, (3) failed to supervise a nonlawyer in her office in accordance with respondent's professional obligations, (4) shared legal fees with a nonlawyer in her office, and (5) owed restitution in the amount of one thousand five hundred sixty-six and 66/100 dollars to her client. In the third case, the panel found that respondent neglected a legal matter by failing to provide legal services, (2) failed to keep this client reasonably informed about the status of client's legal matters, (3) failed to comply with reasonable requests from the client for information about the status of the client's legal matters, and (4) failed to supervise a nonlawyer in her office in accordance with respondent's professional obligations.

¶ 4 The panel's Conclusions of Law are respondent violated Texas Disciplinary Rules of Professional Conduct, Rules 1.01(b)(1)

, (competent and diligent representation),¹ 1.03(a), (communication),² 1.14(b) (safekeeping property),³ 5.03(a) (responsibilities regarding nonlawyer assistants),⁴ and 5.04(a)(Professional Independence of a Lawyer).⁵ of the Texas Disciplinary Rules of Professional Conduct.

¶ 5 The panel imposed upon respondent a probated suspension for two years. The terms of the probation are that she (1) not violate any term of the suspension, (2) not engage in professional misconduct in violation of Texas Rules of Disciplinary Procedure, Rule 1.06(W),⁶ (3) not violate any state or federal criminal statutes, (4) keep the Texas State Bar advised on her current addresses and telephone numbers, (5) comply with Texas continuing legal education requirements, (6) comply with Interest on Lawyers Trust Account (IOLTA), (7) promptly respond to any request for information from the Chief Disciplinary Counsel's Office in connection with any investigation of allegations of professional misconduct, (8) pay restitution to her client in the amount of $1,566.66, (9) pay reasonable and necessary attorney's fees and direct expenses of the Texas State Bar in the amount of $1,962.50, and (10) make contact with the Chief Disciplinary Counsel's Offices' Compliance Monitor and Special Programs Coordinator. The panel's order stated the procedure for revoking her probation, she would not be given credit for any term of probation served prior to revocation, and any conduct which serve as grounds to revoke her probation could be brought as independent grounds for professional discipline. The order stated that any amount of money not paid shall accrue interest at the maximum legal rate per annum until paid and the State Bar of Texas “shall have all writs and other post-judgment remedies against Respondent in order to collect all unpaid amounts.”

Oklahoma Discipline

¶ 6 This Court may impose lawyer discipline on a lawyer when that lawyer has received discipline from the highest court of another state or a federal court.⁷ Rule 7 of the Rules Governing Disciplinary Proceedings, 5 O.S.2011 Ch. 1, App. 1–A, provides for summary lawyer disciplinary proceedings before the Supreme Court in rule-specified circumstances. One of these circumstances is a lawyer's professional discipline imposed on the lawyer in another jurisdiction. Rule 7.7 of the Rules Governing Disciplinary Proceedings (R.G.D.P.).⁸ This rule also provides the Court will issue an order providing a respondent an opportunity to appear and show cause why he or she should not be disciplined by this Court.⁹

¶ 7 On April 28, 2016, this Court issued an order directing respondent “to show cause in writing why a final order of discipline should not be imposed, or to request a hearing, on or before May 19, 2016.” Respondent did not file a response to this Court's order or enter an appearance. Respondent did not request a hearing.

¶ 8 A lawyer accused of misconduct must be afforded due process, and given notice of the charges and a reasonable opportunity to be heard.¹⁰ Complainant filed a notice of serving respondent a copy of the order of the Texas State Bar. This notice used respondent's roster address for the Oklahoma Bar Association. Complainant did not file any notice of serving respondent a copy of the Court's order directing respondent to show cause why a final order of discipline should not be entered.

¶ 9 The rules of this Court require the Clerk of this Court to mail orders and notices to parties, including respondents in a lawyer discipline proceeding who have failed to make an appearance.¹¹ In a Rule 7.7 proceeding where a respondent has not made an appearance, this Court has used mail to the lawyer's Bar Association address as a method to provide notice of (1) an order directing the lawyer to respond why final discipline should not be entered, and (2) the order imposing final discipline.¹² This Court has held notice by mail to a lawyer's official roster address to be sufficient to satisfy due process.¹³ A lawyer's failure to respond to the Bar's requests for information or the disciplinary complaint, or failure to appear at a disciplinary hearing does not prevent this Court from crafting an appropriate discipline.¹⁴ A lawyer's failure to respond to this Court's order directing a Rule 7.7 response from the lawyer does not prevent this Court from entering an order of final discipline.

¶ 10 Documents including a certified copy of an adjudication of professional misconduct in another jurisdiction which is transmitted to this Court “shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described.”¹⁵ The documents provided to this Court by the complainant pursuant to Rule 7.7(b), and showing a two-year probated suspension constitute the charge and are prima facie evidence that respondent committed the acts described therein. A respondent has the burden of showing that the findings forming the basis of the suspension in the other jurisdiction were not supported by the evidence or that the findings are not sufficient grounds for discipline in Oklahoma.¹⁶ Respondent did not meet her burden in this proceeding. The Texas judgment with its findings may be used in this proceeding as a basis to impose professional discipline.

¶ 11 This Court's nondelegable and constitutional responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this state is an exercise of this Court's original jurisdiction.¹⁷ The responsibility of this Court in disciplinary proceedings is to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession.¹⁸ In reciprocal disciplinary proceedings, it is within the discretion of this Court to impose the same discipline as that imposed in the other jurisdiction or one of greater or lesser severity.¹⁹ Discipline imposed by this Court should be consistent with that imposed by this Court for similar acts of misconduct.²⁰

¶ 12 The Oklahoma Rules of Professional Conduct (O.R.P.C.), Rule 1.15

, requires safekeeping of a client's funds that are in a lawyer's possession in connection with the lawyer's representation, as well as requiring the lawyer to provide notice of such possession to the client and third parties who have interests in those funds.²¹ A lawyer has a fiduciary duty to properly manage funds entrusted to the lawyer's care, and where a lawyer violates that duty, this Court engages three levels of culpability, (1) commingling, (2) simple conversion, and (3) misappropriation.²² The record in this proceeding is sufficient to show respondent's commingling and conversion of funds belonging to a client and medical...