In re Reinstatement of Otis

• Decision Date: 30 October 2007
• Docket Number: SCBD No. 5281.
• Citation: 175 P.3d 357,2007 OK 82
• Parties: In the Matter of the REINSTATEMENT Of Jerry E. OTIS to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

175 P.3d 357

2007 OK 82

In the Matter of the REINSTATEMENT Of Jerry E. OTIS to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 5281.

Supreme Court of Oklahoma.

October 30, 2007.

Petition for Reinstatement.

¶ 0 Petitioner Jerry E. Otis filed a petition for reinstatement to membership in the Oklahoma Bar Association (OBA). Through the Office of the General Counsel, the OBA opposes reinstatement. After a hearing, a Trial Panel of the Professional Responsibility Tribunal (PRT) recommended denial of reinstatement. After de novo review, we deny reinstatement.

PETITION FOR REINSTATEMENT IS DENIED; PETITIONER IS ORDERED TO PAY COSTS.

Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, Norman, Oklahoma, for Petitioner.

Janna Dunagan Hall, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent.

OPINION

WATT, Justice.

¶ 1 Petitioner Jerry E. Otis voluntarily submitted his resignation from membership to the Oklahoma Bar Association (the Bar) pending disciplinary proceedings on November 23, 1993. This Court found Otis had complied with the provisions of Rule 8.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991, Ch. 1, App. 1-A¹ and approved the resignation in an order filed on January 11, 1994. On March 13, 2007, Otis filed his Petition for Reinstatement pursuant to Rule 11, RGDP, 5 O.S. Supp.2002, Ch. 1, App. 1-A. Following a hearing before the Trial Panel of the Professional Responsibility Tribunal (PRT) on Otis' reinstatement, the Trial Panel issued its report. It determined Otis had failed to carry his burden of showing by clear and convincing evidence that he is entitled to reinstatement and recommended denial of his petition.

FACTS

¶ 2 Otis was admitted to the Oklahoma Bar Association on July 26, 1966. He practiced law in Antlers, Oklahoma, until August 1, 1993. Otis was appointed Conservator of the Mary L. Cothran Conservatorship on May 26, 1981. Over the course of approximately 10 years, Otis used funds from the conservatorship estate to pay his personal debts. Mary died on May 3, 1995. On or about August 30, 1996, Otis entered a plea of nolo contendere, with a plea agreement in the district court, to the charge of Embezzlement by Trustee, 21 O.S.1991 § 1454. He received a five-year deferred sentence and was ordered to pay restitution for the benefit of Cothran's heirs through the Johnston County District Attorney Restitution Fund. He made a payment of $33,062.13² as directed and also paid to the Cothran heirs the sum of $6,937.87, representing the value of his partnership interest in the law firm from which he resigned. He successfully completed his deferred sentence in August, 2001, and the charges were expunged.

¶ 3 An audit³ performed at the request of Mary L. Cothran's (Mary) heirs concluded that the amount of $174,576.00 was converted by Otis. Mary's heirs, Mary Jo Thompson and Tom Cothran, her niece and nephew, filed a claim in that amount against Otis with the Oklahoma Bar Association's Client Security Fund.⁴ Dan Murdock, General Counsel for the Bar, notified Otis of the claim by letter. Murdock reported that the Board of Governors had met and decided to accept the Client Security Fund Committee's recommendation that the claim be paid in the amount of $133,076.00. Murdock explained, however, that because the number of claims approved by the Committee exceeded the available funds, the Board of Governors recommended paying the claim in the "pro-rated amount of $45,066.24." The letter also provided, "Should you apply for reinstatement to the Oklahoma Bar Association at any time in the future, you will be responsible for repayment of this amount." Otis repaid the Client Security Fund the amount of $45,066.24⁵ prior to filing his Petition for Reinstatement. He received a Chapter 7 discharge in bankruptcy in April, 1996.

¶ 4 Otis testified that after his resignation he first worked as a real estate agent for a short time. From February, 1995 until June, 2000, he was employed by a non-profit organization in Hugo, Oklahoma, Little Dixie Community Action Agency. The agency provided housing assistance to low income persons. He testified he disclosed his past to his employer. Following that employment, he worked for Goodland Presbyterian Children's Home, a place for long-term care for troubled boys, ages six through twelve. Otis served as Goodland's Assistant Director for Development, in a fundraising capacity until October 1, 2006. He testified that if his reinstatement petition is granted, he intends to do pro bono work for Legal Aid for lower income clients. He also testified that he will not put himself in the position again of being tempted with the money of other people. He has essentially retired and wants to restore his reputation as a lawyer.

TRIAL PANEL REPORT

¶ 5 The Trial Panel found Otis had presented evidence showing compliance with two of the three requirements of Rule 11.5, RGDP, 5 O.S.2001, Ch. 1, App. 1-A.⁶ It found the evidence showed he had not engaged in any unauthorized practice of law during the period of his resignation as required by Rule 11.5(b) and that he possesses the competency and learning in the law required for admission to the Bar pursuant to Rule 11.5(c). However, the Trial Panel did not find that Otis possesses the good moral character entitling him to admission to the Bar. See Rule 11.5(a). Although the Panel noted his witnesses testified as to his present moral fitness, his consciousness of the wrongfulness of his acts and the disrepute which his conduct had brought to the profession, the Trial Panel noted his misconduct was of a serious nature and had continued for ten years. The Panel focused its attention on the question of restitution, stating:

Of great concern to the trial panel is the question of restitution. Admittedly Petitioner paid the sum of restitution of $33,272.13⁷ as required in the Order deferring sentence in the felony case against him. And Petitioner repaid the Client's Security Fund the sum of $45,066.24 which is required as a condition precedent to reinstatement by RGDP Rule 11.1(b). In addition, Petitioner paid $6,937.87 to the victims. Restitution paid totals $85,276.24.

Nonetheless, the OBA Board of Governor's (sic) determined and notified Petitioner Otis in January of 1998 that the victims (sic) claim was approved in the amount of $133,076.00. As stated, Petitioner has paid only $45,066.42⁸ (sic) of the approved claim. The balance of the approved claim, recognizing the victims' monetary loss, is $88,009.38, which remains unpaid.

¶ 6 Although the Trial Panel found Otis repaid the Client Security Fund $45,066.24 as directed, and as required by Rule 11.1, RGDP,⁹ it also found he had failed to show by clear and convincing evidence that he was entitled to reinstatement and recommended denial of his petition.

STANDARD OF REVIEW AND BURDEN OF PROOF

¶ 7 This Court considers a petition for reinstatement by a de novo standard of review. Matter of Reinstatement of Massey, 2006 OK 21, 136 P.3d 610; Matter of Reinstatement of Blevins, 2002 OK 78, 59 P.3d 510. When a lawyer has resigned from the Bar pending disciplinary proceedings, as in this case, he has the same burden as an individual who has been disbarred by this Court and must present stronger proof of qualifications than one seeking admission to the Bar for the first time. Matter of Reinstatement of Massey, 2006 OK 21, ¶ 12, 136 P.3d 610, 614, citing Matter of Reinstatement of Blevins, 2002 OK 78 at ¶¶ 3-4, 59 P.3d at 511 and Rule 11.4, RGDP.¹⁰

¶ 8 Additionally, there are eight factors which this Court considers in determining fitness for reinstatement. They are: (1) 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 the resignation, (7) applicant's character, maturity and experience when he resigned, and (8) present legal competence. Matter of Reinstatement of Blevins, 2002 OK 78, ¶ 4, 59 P.3d 510, 511; Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125.

¶ 9 In Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426, we considered a petition for reinstatement of a former lawyer who was convicted of felonies. In discussing our focus in such matters, we said:

While we have permitted attorneys to be reinstated after convictions of crimes, we do not agree to reinstatement without a thorough and critical review of the crimes committed and their effect on the legal profession. `To this end the evidence must support a finding that the Applicant would not commit any serious crime if readmitted. Foremost consideration must be given to protecting the public welfare. Finally, there must be a determination that reinstatement would not adversely effect the Bar. Matter of Reinstatement of Cantrell, 785 P.2d 312, 313 (Okla.1989).' It remains the duty of this Court to safeguard the interests of the public, the courts and the legal profession. Kamins, 752 P.2d at 1130.

Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426, 428 (footnote and citations omitted).

CONTENTIONS

¶ 10 Otis contends he has fully reimbursed Mary's heirs for the funds he embezzled from her estate through his payments of $40,000.00¹¹, costs of $210.00 and $45,066.24, for a total of $85,276.24. This Court has examined the evidence of Otis's disbursements from the Cothran conservatorship estate. Undoubtedly, the payments Otis made to himself and the payment of his personal taxes to the Internal Revenue Service (IRS) and the Oklahoma Tax Commission (OTC) directly from the conservatorship funds were flagrant and unauthorized disbursements. Tom and Mary Jo also contended that the payments to L.P. ("Pate") Cothran, Mary's brother, were unauthorized¹² and included them in their claim to the OBA Board of...