State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 3666

• Decision Date: 17 September 1991
• Docket Number: No. 3666,3666
• Citation: 1991 OK 88,824 P.2d 1090
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Frank MISKOVSKY, III, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 1090

824 P.2d 1090

1991 OK 88

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Frank MISKOVSKY, III, Respondent.

SCBD No. 3666.

Supreme Court of Oklahoma.

Sept. 17, 1991.

As Corrected Oct. 9, 1991.

Bar Disciplinary Proceeding.

Respondent was charged with six counts of professional misconduct. Three of the counts charged commingling client funds with respondent's own funds and failing to keep the funds in a separate account. Two of these counts also charged conversion of, at least, part of the funds. The other counts concerned alleged failure to cooperate in complainant's investigation, primarily by failure to provide records. After hearing, a Professional Responsibility Tribunal (PRT) found respondent guilty of certain misconduct and that complainant had not proved its case as to other charged misconduct. The PRT recommended a six month suspension. After independent review we find respondent guilty of professional misconduct. We decline to follow

the recommendation as to discipline because it is too lenient.

RESPONDENT SUSPENDED FOR EIGHTEEN (18) MONTHS; COSTS CHARGED TO RESPONDENT AND RESTITUTION ORDERED.

John E. Douglas, Asst. Gen. Counsel, Dan Murdock, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Frank Miskovsky, III, pro se.

LAVENDER, Justice.

Disciplinary proceedings were initiated against respondent, Frank Miskovsky, III, alleging six counts of misconduct. Complainant, Oklahoma Bar Association, alleged in count one commingling of client funds with his own, failing to deposit funds entrusted to him to pay client medical bills in a separate account, failing to pay some of the medical bills as promised and misrepresenting to the clients all medical bills had been paid when they had not. Count two alleged failure to fully cooperate in the investigation of count one by failing to produce bank records requested by complainant and ultimately subpoenaed and failing to appear at scheduled deposition(s) for which he was subpoenaed. Count three charged commingling client funds, failing to place the funds in a separate account and use them for a particular specified purpose, conversion of the funds and intentionally prejudicing the client by the handling of the involved funds. Count four essentially charged misconduct by respondent's failure to provide records he indicated he reviewed in responding to the grievance which had initiated the investigation leading to count three and to appear at scheduled deposition(s). ¹ Count five also charged commingling of client funds and conversion. Count six was a charge under Rule 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.1981, Ch. 1, App. 1-A.

A Professional Responsibility Tribunal (PRT) found certain violations in regard to the first five counts and that other matters charged therein were not proven. It found Although we agree with some of the findings and conclusions of the PRT our agreement is not total. We also rule more severe discipline is warranted and that respondent's due process argument is meritless.

                no violation as to count six. 2  The PRT recommends a six month suspension.  Complainant argues for more severe discipline.  Respondent contests the PRT's findings of misconduct and as to counts two and four he contends he was denied due process because the first notice he had of those charges was in the complaint, rather than via an earlier grievance or recitation of facts or allegations, he says should have been sent to him by complainant informing him it was contemplating requesting the Professional Responsibility Commission to direct it to lodge said charges in a formal complaint
                

STANDARD OF DETERMINATION IN BAR DISCIPLINARY PROCEEDINGS

In disciplinary matters we are a licensing court acting in the exercise of our exclusive jurisdiction. State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 894 (Okla.1989). Our determinations are made de novo and neither the findings of fact of the PRT nor its view of the weight of the evidence or credibility of witnesses are binding on us. Id. Further, no presumption of correctness attaches to the findings or conclusions of the PRT. Id; State ex rel. Oklahoma Bar Association v. Braswell, 663 P.2d 1228, 1230 (Okla.1983). Although a PRT's recommendations are accorded great weight they are merely advisory. The ultimate decision-making authority rests with us. McMillian, supra; State ex rel. Oklahoma Bar Association v. Samara, 683 P.2d 979, 984 (Okla.1984). Finally, to warrant a finding against a lawyer in a contested case the charges must be established by clear and convincing evidence. Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.1981, Ch. 1, App. 1-A. With these principles in mind we turn to a discussion of the misconduct charged.

COUNT I

Donald and Kelly Franks (Frankses) retained respondent in November 1987 to represent them in claims for injuries suffered in an automobile accident. According to a written attorney employment contract respondent was to receive as his fee 30% of any settlement made before suit was actually filed, 35% of any settlement made after suit was filed and 40% of any settlement or judgment secured after the matter was set on a trial docket. The fee was to be calculated after expenses of suit (if any), and investigation or fees of witnesses were first paid in full out of settlement or judgment proceeds. The contract authorized respondent to pay directly to any physician or hospital any bills incurred by the Frankses for medical treatment. As we interpret the contract, and as agreed by complainant, respondent's fee was to be calculated prior to any deduction for medical expenses. The matter settled before suit was filed.

In January 1988 respondent received a partial settlement of $22,000.00. The money was deposited in respondent's regular checking account, rather than a separate or trust account for client funds. However, money was paid out in accordance with the employment contract on or about the date of deposit. The clients received $15,400.00 (70%) and respondent $6,600.00 (30%).

In February 1988 respondent received an additional $42,500.00 as a final settlement. Respondent agreed to pay the medical providers owed money by the Frankses. He prepared a settlement statement regarding distribution of the money. Investigation costs of $400.00, the cost of three doctors reports apparently obtained for potential use in the case at $200.00 total and estimated medical expenses of $2,000.00 were initially deducted from the $42,500.00. He then calculated his attorney fee at 30% of First, the medical expenses were underestimated $231.88. Respondent sent an adjusted settlement statement to the Frankses dated February 17, 1988 reflecting the new amount for medical expenses. He also requested $134.88, a sum he calculated would cover the underestimation. The Frankses sent a check in that amount.

                the remainder, i.e. 30% X $39,900.00 for an attorney fee of $11,970.00.  The deducted medical expenses were not put in a separate or trust account for client funds, but were placed in respondent's regular checking account. 3  The Frankses were paid $27,903.00 on or about February 16, 1988.  Problems soon began to surface
                

The next problem was the Frankses began to receive inquiries from some of the medical providers in March or April indicating medical bills had not been paid. Respondent had previously informed them via a letter which accompanied the adjusted settlement statement of February 17, 1988, he had sent checks directly to all medical providers shown on the statement. They contacted respondent who assured them checks had been mailed shortly after February 16th to the providers and he requested they wait a full thirty day billing cycle to see if that would end the problem. It did not and more inquiries and requests to pay from some of the medical providers were made. The Frankses paid some of the bills themselves.

At the hearing before the PRT respondent appeared to testify he did write checks to all the medical providers shortly after February 16th and he had no definitive explanation for them not being received by any of the medical providers. He has never produced any check stubs or any other tangible documentation evidencing these "missing" checks. It is our view that although respondent may indeed have sent or, at least, started the process in motion to have one of his temporary secretaries he had during this time period send some of the payments for medical bills, the record evidence and the inferences to be drawn therefrom shows respondent had not sent out checks to all the medical providers he had bills for at the time he told the Frankses he had. The record also shows respondent ultimately paid only $1,095.63 to some of the medical providers on or about April 29, 1988, even though he was entrusted with $2,134.88 by the Frankses for the express purpose of paying their medical bills.

The third problem to surface was respondent figured his fee wrong. Although the record shows the Frankses were under the mistaken view medical expenses should have been deducted prior to calculating respondent's fee at 30%, the employment contract, as noted, does not so provide. Obviously, if medical expenses are not deducted first respondent's fee would be higher because the 30% is multiplied by a larger sum. By letter of May 18, 1988 respondent informed the Frankses of what he perceived to be the miscalculation and he requested they send him a check for $850.00. He was now apparently figuring his fee based on 30% of the entire final settlement of $42,500.00, without inital deduction for any investigation expenses (i.e. $600.00). Respondent's new calculation again proved incorrect. We have determined the correct fee to be $12,570.00, which is 30% of $41,900.00. ⁴

In the final analysis, respondent took more than $12,570.00 and he presently owes the Frankses $466.25. He has had use of this sum since early 1988. We arrive...