State ex rel. Oklahoma Bar Ass'n v. O'Bryan
| Citation | 1963 OK 151,385 P.2d 876 |
| Parties | STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. William Howard (Pat) O'BRYAN, Respondent. S.C.B.D. 1792. |
| Decision Date | 18 June 1963 |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Attorneys at law are officers of the Supreme Court. Their professional conduct should accord with the high ethical standards of the profession. The Court has inherent authority to regulate the admission of applicants to the practice of law, to administer discipline and, in proper cases, to disbar attorneys for offenses against such ethical standards.
2. The accused in a disbarment proceeding is not entitled to a jury trial.
3. Evidence examined and held that the recommendation that respondent should be disbarred should be and is approved.
Proceedings to Review Recommendation of Central Committee and Executive Council of Oklahoma Bar Association.
William Howard (Pat) O'Bryan, of Oklahoma City, Oklahoma, a member of the Oklahoma Bar Association, was charged with unprofessional conduct, to-wit: violation of Canons No. 22 and No. 29 of the Canons of Professional Ethics of the American Bar Association as made applicable to the professional conduct of attorneys in this State by Rule of this Court. The Association recommended that respondent be disbarred from the practice of law in this State. The recommendation is approved and respondent disbarred.
John L. Smith, Oklahoma City, for complainant.
William D. Fore, Oklahoma City, for respondent.
The question to be determined herein is whether this Court will approve a report of the Oklahoma Bar Association and follow its recommendation that respondent be disbarred from practicing law.
This matter was first brought to the attention of the Bar Association when a Judge of the Federal Court for the District including Oklahoma City, on November 12, 1958, wrote a letter to the Bar concerning respondent's conduct for which he has been barred from further practice in that court.
Respondent had, on March 24, 1958, filed a 'proof of debt' in the case of the Bankruptcy of Selected Investments Corporation and Selected Investments Trust claiming that Selected owed him $1,194,027.02 for the reasonable value of legal services performed at the bankrupt's request, most of which allegedly became due on November 18, 1957, and the balance shortly thereafter, and that he had received no sort of security or note or other evidence of the existence of the indebtedness. An exhibit attached to the claim asserted entitlement to 10% of certain tax savings to Selected.
Respondent has thereafter and on May 21, 1958, filed an amended proof of debt asserting that the debt claimed was 'based upon an oral contract which was reduced to writing on October 29, 1954,' and 'further evidenced by a memorandum agreement dated May 17, 1957,' and had attached copies of these two letters as exhibits.
On or about Mrch 3rd to 7th, 1958, and before filing that original claim, respondent had talked by telephone to the Trustee in Bankruptcy and had been told by him that Mr. Carroll's testimony would not be very good to support an oral contract. It was after that (and within some two months from the time of filing of his original claim as above noted) that respondent 'found' the purported written contract hereinafter described.
In the hearing before the Trial Examiner from which arose the recommendation presently under consideration herein, the Trustee in Bankruptcy testified repeatedly that respondent called him on the telephone different times after he had been designated as such Trustee and told him that respondent had an oral contract for fees; that it stuck in the trustee's mind immediately that respondent had been operating for a number of years under an oral agreement to represent someone; that he told respondent he would have been better off if he had had a written contract; that he did not instruct respondent 'prior to his filing an original claim that it would be much easier for him to have a written contract as distinguished between an oral contract.'
Respondent wrote the Trustee in Bankruptcy on March 10, 1958, and before filing his original claim, a thirty-two page letter in explanation of his claim soon to be filed. Therein, (page 4), he stated:
'Inasmuch as neither the officials of the company or ourselves could foresee the extent of the difficulties with which we might be confronted, no agreement could be reached as to the legal fees to be charged. It was understood that our compensation would be based upon a 'reasonable fee' which would be contingent, to some extent, upon the results accomplished.
'I explained to Mr. Carroll that I could not abandon my practice, which had been built over a period of many years, for the sake of any one client; also, that I could not, under the circumstances, determine what would be a reasonable retainer.
'The question of the legal fees to be charged was held in abeyance to be determined, when the results were in, on a reasonable basis with the understanding that in the interim Selected would from time to time allow us reasonable advances, in the form of retainer, to assist us in carrying the costs of our office and correspondingly the cost of carrying on this litigation.'
On page 14 of that letter Mr. O'Bryan listed specifically the dates of some 12 or 15 conferences with taxing authorities. On page 22 of that letter he stated:
Referring to the Oklahoma State Income Tax angle of Selected' business, on page 28 of that letter, Mr. O'Bryan wrote:
Yet he made no mention of the purported letter-agreement of October 29, 1954, in such entire letter of March 10, 1958, to the Trustee in Bankrupcty.
In that same letter of March 10, 1958, to the Trustee in Bankruptcy, to which reference was above made, respondent, at pages 22 and 23 thereof quoted two paragraphs from Am.Jur., Vol. 5, Attorneys at Law, IX, Compensation of Attorneys, E, Measure of Compensation or Recovery, § 198, Under Implied Contract, of effect as follows:
(That)
and listing numerous circumstances to be considered in fixing amount of an attorney's fee. On page 31 of that letter he stated that that 'quotation * * * eloquently set forth the basis upon which our claim for 'reasonable compensation' is based.'
As noted above, respondent herein was the claimant in the Selected Bankruptcy case. His claim came on for hearing in the Federal Court on November 3, 1958. A special master had been appointed in the case. However, the Judge of the Court recessed a jury trial and heard the matter personally. Respondent was given an opportunity to testify concerning the validity of his amended claim and the trustee in bankruptcy, who had been appointed by such Court, contested the validity thereof.
The letter of October 29, 1954, being complainant's Exhibit 23 herein and plaintiff's Exhibit No. 36 in the Federal Court Proceeding wherein respondent sought to establish his claim as amended, and which was attached to his amended proof of debt as Exhibit 'B' is as follows:
'Law Office of
'O'Bryan And O'Bryan
'Hightower Building
'Oklahoma City, Oklahoma
'CEntral 2-6151
'W. Howard O'Bryan, Jr.
'Mr. Hugh A. Carroll, 312 Park Avenue Oklahoma City, Oklahoma
'Dear Mr. Carroll:
'This will confirm my understanding of the agreement reached by us relative to our representation of the Selected Investments group in the Federal Income tax matters now pending and the compensation to be paid to us in relation thereto.
'It is our understanding that we are to render whatever legal services may be required of us in connection with these matters--including all years in which the issues raised may be involved, to the end that the income tax problems of the Selected group may be brought to a current status.
'At the time of our employment it was impossible to anticipate what might be required of us-at that time it was agreed that this matter would be held in abeyance until an intelligent approach could be made to the subject.
'A few days ago we reached an agreement as to the compensation to be paid to us, which you have asked that I confirm to you; my understanding of this agreement is as follows:
'1. We are to receive a total fee equal to 10% of the amount of the tax savings. The term 'savings' is to mean the total amount which the government would collect under their theory of the cases minus the amount of tax that might ultimately be paid.
'If the foregoing conforms to your understanding, please sign the enclosed copy of this letter and return the same to us.
'Yours very truly,
'/s/ W. H. Pat O'Bryan
'W. H. Pat O'Bryan
'This is my...
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