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

• Decision Date: 08 April 1997
• Docket Number: No. 4116,4116
• Citation: 936 P.2d 947,1997 OK 39
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert G. GREEN, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 947

936 P.2d 947

1997 OK 39

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert G. GREEN, Respondent.

SCBD No. 4116.

Supreme Court of Oklahoma.

April 8, 1997.

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

Robert G. Green, Tulsa, for Respondent.

LAVENDER, Justice.

Disciplinary proceedings were brought against respondent, Robert G. Green, by complainant, the Oklahoma Bar Association (OBA) pursuant to Rule 6 (Formal Proceedings Before Supreme Court and Professional Responsibility Tribunal) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991, Ch. 1, App. 1-A, as amended. Two counts of misconduct were charged. After hearing, a Professional Responsibility Tribunal (PRT) found misconduct under both counts. As to count 1, the PRT found violation of Rules 1.3 ¹ (failure to act with reasonable diligence and promptness in representing a client) and 1.4 ² (failure to properly communicate or explain a matter to a client) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.1991, Ch. 1, App. 3-A, as amended. As to count II, violation of Rules 1.1 ³ (failure to provide competent representation) and 1.3, were found. The PRT recommended discipline of a four month suspension from the practice of law.

After de novo consideration, we conclude respondent engaged in misconduct in violation of Rules 1.1, 1.3 and 1.4 in regard to both counts. ⁴ The appropriate discipline for the misconduct is a public reprimand.

STANDARD OF DETERMINATION IN BAR DISCIPLINARY PROCEEDINGS

In State ex rel. Oklahoma Bar Association v. Todd, 833 P.2d 260 (Okla.1992), the standard of review in attorney disciplinary proceedings was set out. There we said:

In attorney disciplinary proceedings this Court's determinations are made de novo. The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with us in the exercise of our exclusive original jurisdiction in bar disciplinary matters. Accordingly, neither the findings of fact of a Professional Responsibility Tribunal (PRT) nor its view of the evidence or credibility of witnesses are binding on us and recommendations of a PRT are merely advisory. (citations omitted)

Id. at 262.

In addition, to warrant a finding against a lawyer in a contested case the charges of misconduct must be established by clear and convincing evidence [Rule 6.12(c) of the RGDP; State ex rel. Oklahoma Bar Association v. Thomas, 911 P.2d 907, 909 (Okla.1995) ], i.e that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Matter of C. G., 637 P.2d 66, 71 n. 12 (Okla.1981). With these standards in mind we turn to a discussion of the misconduct charged.

FACTS AND DISCUSSION

Respondent has been a member of the OBA since 1965. Both counts of misconduct concern Brown Brothers Drilling Company (BBDC), an Oklahoma general partnership formed in 1981 by members of two families, the Browns and Seigels. Partners in BBDC included Craig and Gary Brown, their father Virgil Brown, Seigel Drilling Corporation and S & S Drilling Company. BBDC's purpose was apparently drilling oil and/or gas wells for profit.

Six witnesses testified at the PRT hearing: respondent; Craig Brown; Christopher Heroux, Cleve Powell and Gary Pierson--three attorneys; and Robert Hanks, an OBA investigator. All were called on behalf of the OBA. Thirty (30) exhibits were also admitted on behalf of the OBA. In addition, respondent and the OBA entered certain stipulations referenced in the PRT's Findings of Fact and Conclusions of Law.

Although he apparently knew the Browns since the 1970s respondent was not involved in representing BBDC until early 1990. At such time Virgil suggested his sons contact respondent. Virgil did not testify at the PRT hearing because of illness--multiple sclerosis. The suggestion was apparently necessitated because the Seigel faction of BBDC had been the one primarily handling financial and legal aspects of the business, they essentially "baled out" of the partnership around such time and legal counsel they had hired would, therefore, apparently no longer be available to represent BBDC. Gary Brown was the initial person to contact respondent on behalf of BBDC. He also did not testify before the PRT.

According to respondent, his agreement with Gary in regard to representation of BBDC in general was essentially as follows: BBDC, having indicated the need to control its legal bills and expressing a general inability or, at least, difficulty in paying for legal representation, respondent would be employed only on a case-by-case or matter-by-matter basis. Respondent also asserts in his brief to this Court he never agreed to represent BBDC in any matter unless he understood BBDC could pay him for the services or it would be obligated to pay him. Respondent also testified the arrangement he had with Gary was that Gary did not want respondent to send him any bills. In sum, no written agreement concerning the representation was entered which would have spelled out the fee to be charged or the precise responsibilities of respondent as legal representative.

In total, respondent was paid $2,000.00 by BBDC, $1,000.00 in June 1990 and $1,000.00 in July 1990. The record is not completely clear for what work this money was paid to him. The record also shows respondent billed BBDC on December 30, 1991 for another $1,500.00 for professional services in November/December 1991. Respondent testified this bill was requested by Janel Love, secretary/office manager of BBDC. The record is also unclear as to exactly what services this bill was to cover, and respondent assumed Ms. Love requested it for some bookkeeping or record purpose. Ms. Love died prior to the PRT hearing and, therefore, she also did not testify at the hearing.

After respondent was contacted by Gary Brown he began to represent BBDC in a variety of legal matters beginning around March 1990. The matters included two cases involving post-judgment assistance where judgments had previously been rendered against BBDC, technical assistance on the buyout of a note BBDC had with a financial institution around June 1990 and representation before an administrative agency where BBDC was claimed to be in violation of the child labor laws (assistance occurred between December 1991 and mid-February 1992). Respondent also became involved in two cases that form the basis of the two counts of misconduct charged against him. We discuss count II first.

COUNT II.

Count II relates to a Kay County District Court case--Contractors Bit Service, Inc. v. Brown Brothers Drilling Company et al, Case No. C-90-133PC. It alleges respondent was retained to represent BBDC and the individual partners in the case, but respondent failed to adequately protect the interests of Virgil Brown in the matter.

The suit was commenced in June 1990 to recover payment for bits, parts and supplies allegedly sold to BBDC. ⁵ BBDC and the two Brown brothers were initially sued, as well as other defendants. Respondent filed an answer on behalf of BBDC and the two Brown sons in July 1990. A first amended petition was filed in March 1991, in which Virgil was added as a defendant. As we read the first amended petition, a monetary judgment was requested not only against BBDC, but the three Browns, in addition to other defendants. The certificate of mailing on the amended petition shows mailing to respondent on March 12, 1991. Although respondent testified he did not remember when he was first made aware of it, we find nothing in the record leading to any other conclusion than respondent received the amended petition shortly after mailing.

No timely answer or other responsive submission was filed to the first amended petition. In August 1991, default judgment was taken against Virgil (and others) in the principal amount of $48,234.74, with pre-judgment interest of $10,201.64. The record shows the default judgment was mailed to respondent by certified mail with an accompanying letter from Cleve Powell (attorney for Contractors Bit) on September 5, 1991 and that respondent's then secretary signed for it the next day. As we understand respondent's testimony, he does not deny receiving a copy of the default judgment at that time.

On December 5, 1991 Powell filed a motion to have Virgil Brown disclose his assets. A hearing on assets was scheduled for December 19, 1991. Only then did respondent take any action on behalf of Virgil in the case. Either the day of the asset hearing or shortly before, respondent called Powell, informing him Virgil could not be subjected to interrogation because he was bedridden with multiple sclerosis. They agreed to postpone the asset hearing. They also agreed that because Virgil was unavailable, respondent would produce Virgil's wife and/or, at least, one of his sons to answer questions about Virgil's assets on January 6, 1992 at 9:00 a.m. at the Courthouse in Ponca City. Respondent did not produce anyone on this latter date. Powell called respondent about his failure to honor the earlier agreement concerning producing someone to answer as to Virgil's assets. Respondent informed Powell at such time that he forgot all about the matter.

After January 6 Contractors Bit sought to garnish an account at a financial institution in Cleveland, Oklahoma, he thought might be held by Virgil. Apparently, it turned out the account was that of Virgil's wife. At some time after default judgment, the contents of a safety deposit box held by Virgil were also subjected to post-judgment examination to see if anything of value was contained therein that could satisfy the default judgment.

Not until January 31, 1992 did respondent file an answer to the first amended petition, the same date he filed on behalf of Virgil a motion to vacate the default...