In re Reinstatement of Mumina

• Decision Date: 29 September 2009
• Docket Number: No. SCBD-5499.,SCBD-5499.
• Citation: 2009 OK 76,225 P.3d 804
• Parties: In the Matter of The REINSTATEMENT OF Kwame Telli MUMINA to Membership in The Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

225 P.3d 804

2009 OK 76

In the Matter of The REINSTATEMENT OF Kwame Telli MUMINA to Membership in The Oklahoma Bar Association and to the Roll of Attorneys.

No. SCBD-5499.

Supreme Court of Oklahoma.

September 29, 2009.

Petition for Reinstatement

¶ 0 The petitioner, Kwame Telli Mumina (Mumina/attorney), petitioned for resignation from the respondent, Oklahoma Bar Association (Bar Association), pending disciplinary proceedings involving the misappropriation of approximately $50,000.00 in fees belonging to his employer law firm. This Court approved the resignation effective December 3, 1997. In July of 2000, the attorney was indicted on twenty counts relating to his actions as trustee of a bankruptcy estate. Nineteen of those counts involved his utilization of over $100,000.00 of bankruptcy funds during 1995 and 1996 for his own purposes. Mumina entered an agreement dismissing those counts and pled guilty to the single remaining charge, filing a false report in the bankruptcy proceedings. Approximately eleven years after having resigned his office of attorney, Mumina filed a petition for reinstatement. Over the Bar Association's objections, the trial panel of the Professional Responsibility Tribunal unanimously recommended reinstatement. Upon de novo review, we determine that reinstatement should be granted and impose costs of $2,796.78.

PETITION FOR REINSTATEMENT GRANTED; PETITIONER ORDERED TO PAY COSTS OF $2,796.78.

Aletia Haynes Timmons, Timmons and Associates, L.L.C., Oklahoma City, OK, for petitioner.

Loraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for respondent.

WATT, J.

¶ 1 On December 3, 1997, we approved the attorney's voluntary resignation from the Bar Association pending disciplinary proceedings arising from his misappropriation of approximately $50,000.00 in fees belonging to his employer law firm. In July of 2000, Mumina was indicted on twenty counts relating to his actions as trustee of a bankruptcy estate. Nineteen of those counts involved the utilization of over $100,000.00 of bankruptcy funds during 1995 and 1996 for his own purposes. A plea agreement resulted in the dismissal of the first nineteen counts; and the attorney pled guilty to the only remaining count, filing a false report in the bankruptcy proceedings. On January 12, 2009, approximately eleven years after having resigned his office of attorney, Mumina filed a petition for reinstatement.

¶ 2 Upon a de novo review,¹ we determine that the attorney presented clear and convincing evidence that, if readmitted, his conduct would conform to the high standards of a member of the Bar Association.² Costs of $2,796.78 are imposed.³ Our decision to allow Mumina to return to the practice of law is supported by: testimony from an elected official, a former federal prosecutor, and two sitting district judges indicating that the attorney's reinstatement would be advantageous to the judicial system, the Bar Association, and his community;⁴ the attorney's unqualified acceptance of responsibility for his admittedly wrongful acts;⁵ the fact of complete monetary restitution to the victims of his misdeeds and his on-going efforts in meeting his tax obligations; his recognition that he must react differently to the situations causing stress in his life; and his attempts to help young lawyers avoid the pitfalls of his experiences in the practice of law.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Mumina was admitted to the practice of law in 1983. On May 5, 1997, the Bar Association filed a three-count complaint against the attorney. All three charges involved Mumina's having misappropriated, for his own use, funds belonging to his employer firm and his dishonesty in responding to firm inquiries about the monies. Count one related to the attorney having accepted a personal check from a client in the amount of $32,500.00 while representing to the firm that he was having difficulty obtaining the attorney fee funds. The second count involved Mumina's having misappropriated $6,843.00 in fees and $1,304.48 in expenses awarded in his law firm's favor contemporaneous with misrepresenting to the firm that there had been no award. Count three described Mumina's having taken $11,870.52 in funds intended for the firm in the form of fees and communicating to the firm that no fees would be paid until some future date when the cause was finally concluded. Prior to the filing of the complaint, the attorney made full restitution to the firm.⁶

¶ 4 Mumina's resignation, prompted by the Bar Association's complaint, ended an admirable legal career. Prior to that time, the attorney clerked for a federal bankruptcy judge and had been named as a partner in one firm and as a shareholder in another. He was active in the Bar Association on both a state-wide and county level and instrumental in forming the William J. Holloway, Jr. American Inn of Court which he served as President and Secretary-Treasurer. Contemporary therewith, Mumina was also involved in his local community. Nevertheless, the attorney was experiencing turmoil in his private life. His wife was diagnosed with a life-threatening disease which required her to resign her employment. One of Mumina's children was experiencing significant psychological problems related to the lack of attention she was receiving from her father resulting in an attempted suicide. Finally, the attorney did not believe he was getting the staff support he had been promised at his new firm or that all aspects of his compensation package were being paid at the expected levels.⁷

¶ 5 During the same time period, the attorney learned that he was under investigation for his activities while serving as a bankruptcy trustee. On July 5, 2000, a twenty-count indictment issued. The first nineteen counts alleged misappropriation and embezzlement of approximately $115,000.00 belonging to the bankruptcy estate. The final count involved the filing of a false report in the bankruptcy proceedings. The counts relating to misappropriation and embezzlement were dismissed as part of a plea negotiation after Mumina restored almost $105,000.00 to the bankruptcy estate.⁸ The attorney pled guilty to the single remaining count. On March 7, 2001, Mumina was ordered to pay restitution in the total amount of $35,425.73 and to serve a maximum of twenty-one months imprisonment. The attorney was released from prison on November 21, 2002 and satisfied the restitution judgment in 2008.⁹ Although the attorney filed personal bankruptcy in 2001, the record reveals that he is satisfying his delinquent tax obligations to the state and federal governments.¹⁰

¶ 6 The reinstatement hearing was held before the trial panel on April 2, 2009. The trial panel issued is report on May 4, 2009 determining that Mumina had presented clear and convincing evidence of all the factors necessary for reinstatement and recommending the same. On the same date, the Bar Association filed its application for the assessment of costs in the amount of $2,796.78. Although Mumina waived the right to file an opening brief, he did file a reply to the Bar Association's response brief. The briefs were filed on April 1, 2009 and May 26, 2009, respectively, completing the briefing cycle.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 7 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of practitioners of the law. The duty is vested solely in this department of government.¹¹ Our determinations are made de novo.¹² Although given great weight,¹³ neither the findings of fact of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.¹⁴ We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.¹⁵ A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.¹⁶ Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facia showing that the attorney has not engaged in improper conduct during the suspension period.¹⁷

¶ 8 An applicant seeking reinstatement to the practice of law bears a heavy burden which is the same whether the attorney was disbarred or resigned pending disciplinary proceedings.¹⁸ Before being readmitted to the practice of law, it must be established that the lawyer's conduct will conform to the high standards required of a member of the Oklahoma Bar. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied.¹⁹ The petitioner must present stronger proof of qualifications than one seeking first time admission.²⁰ Furthermore, the more severe the disciplinary offense, the heavier the burden the attorney must overcome to gain reinstatement to the Bar Association.²¹

¶ 9 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A requires the trial panel to make specific findings regarding whether the petitioner: 1) possesses the good moral character which would entitle the attorney to be admitted to the Bar Association; 2) has engaged in the unauthorized practice of law during the period of suspension; and 3) possesses the competency and learning in the law required for admission to the practice of law in the State of Oklahoma. In addition, this Court considers the following eight factors in making a reinstatement decision: 1) the applicant's present moral fitness; 2) demonstrated consciousness of the conduct's wrongfulness and the disrepute it has brought upon the legal profession; 3) the extent of rehabilitation; 4) the original misconduct's seriousness; 5) conduct after resignation; 6) time elapsed since suspension; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal...