In the Matter of Reinstatement of Munson, 2010 OK 27 (Okla. 3/16/2010), SCBD-5540.

Citation2010 OK 27
Decision Date16 March 2010
Docket NumberNo. SCBD-5540.,SCBD-5540.
PartiesIN THE MATTER OF THE REINSTATEMENT OF: EDWARD LEE MUNSON, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS.
CourtSupreme Court of Oklahoma

¶ 0 The petitioner, Edward Lee Munson (Munson/attorney), petitioned for resignation from the respondent, Oklahoma Bar Association (Bar Association), pending disciplinary proceedings following the trial panel's recommendation that he be suspended from the practice of law for two years and one day. The recommendation arose from two counts of misappropriation of funds totaling approximately $55,000.00 and a misrepresentation to a banking institution. After the hearing, a second complaint was filed alleging the mishandling of an additional $50,000.00 and the failure to respond. We consolidated the causes and accepted the attorney's resignation effective February 16, 1993. Approximately fourteen (14) years after his resignation, Munson filed a petition for reinstatement. Finding that the attorney failed to sustain his burden of proof regarding the prerequisites of reinstatement, the trial panel of the Professional Responsibility Tribunal unanimously recommended that Munson not be reinstated. Upon de novo review, we determine that reinstatement should be denied and impose $1,705.47 in costs.

PETITION FOR REINSTATEMENT DENIED; PETITIONER ORDERED TO PAY COSTS OF $1,705.47.

Aletia Haynes Timmons, Timmons & Associates, LLC, Oklahoma City, Oklahoma, for Petitioner.

Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent.

WATT, J.:

¶ 1 This is the attorney's third time before this Court. Munson was suspended from the practice of law from December 12, 1988 through January 4, 1990 (Munson I)1 for two counts of misrepresentation and neglect. The Bar Association filed a complaint against the attorney in 1992. The allegations were that the attorney: 1) misrepresented the nature of business transactions to a bank inducing the institution to provide immediate funds on a check drawn on an account at another bank; and 2) presented checks totaling approximately $55,000.00 knowing that there were insufficient funds on deposit in the accounts upon which they were drawn. Following the hearings in the consolidated causes, the trial panel recommend a suspension of two years and one day. Thereafter, Munson filed an application, pursuant to Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 1991, Ch. 1, App. 1-A,2 requesting that he be allowed to resign his membership in the Bar Association and relinquish his right to practice law. We consolidated the complaint heard by the trial panel with another complaint filed on January 8, 1993. The second complaint alleged the mishandling of an additional $50,000.00 and failure to respond. The Court approved the resignation on February 16, 1993 ordering Munson to comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 1991, Ch. 1, App. 1-A3 and to pay the costs of the proceeding within a reasonable time from the date of the order (Munson II).4 Today, we address Munson's petition for reinstatement.

¶ 2 Upon a de novo review,5 we determine that the attorney did not present clear and convincing evidence that, if readmitted, his conduct would conform to the high standards required of a member of the Bar Association.6 Therefore, we deny reinstatement and impose the costs of the proceeding in the amount of $1,705.47.7 Our decision is supported by evidence of the attorney's unauthorized practice of law during his initial suspension in Munson I along with his lack of candor concerning the factors leading up to his 1993 resignation and by uncertainty concerning his competency to practice law raised by the lack of strict compliance with the rules governing suspension and reinstatement proceedings.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Munson was admitted to the practice of law on August 17, 1973. Fifteen years later, we suspended the attorney for one year on two counts of misrepresentation and neglect. Just three years later, after the trial panel recommended a suspension of two years and one day, we approved Munson's application for resignation pending disciplinary proceedings.

¶ 4 The transactions leading to the attorney's resignation grew out of two consolidated complaints. SCBD No. 3840 arose from transactions involving an attempt by Munson and the Vammen family to set up an integrated farming operating. The Vammens loaned the attorney $62,000.00 in conjunction with the business venture. When the attorney was unsuccessful in getting further financing, the Vammens requested that their monies be returned.

¶ 5 In an attempt to pay one of the family members their portion of the funds, the attorney drew a check for $46,000.00 on his trust account when the balance on the date of the check's issuance was $187.75. Two weeks later, the attorney again attempted to pay the same family members. At that time, while in Jay, Oklahoma, Munson represented to a bank officer of the Delaware County Bank that he had closed a real estate transaction for clients purchasing land from the Vammens. Munson advised the officer that he needed to deposit a check for $48,000.00 on a Tahlequah account to an account in the Delaware County Bank and then have a wire sent from the Jay bank to the Vammens' bank in Texarkana for $46,000.00. Based on the officer's prior business dealings with Munson and the representations involving the land sale, the wire transfer was approved. When the check was deposited in the Delaware County Bank, no such real estate transaction had occurred and the balance in the Tahlequah bank account was in the negative. The Delaware County Bank did not receive all of its funds until after having filed suit against the attorney and engaging in collection efforts on the summary judgment entered in the cause.

¶ 6 Another Vammen family member sought repayment of her portion of the investment. Munson wrote a check on the Delaware County Bank trust account for $6,851.33. The check was dishonored. When the check was issued, the account contained only $956.47.

¶ 7 The trial panel conducted a hearing in this matter on December 11, 1992. In January of the next year, it issued a report which recommended that the attorney be suspended for a period of two years and one day.

¶ 8 While SCBD No. 3840 was pending, a complaint was filed in SCBD No. 3894 alleging three counts of misconduct. We consolidated this complaint with the prior one for purposes of considering the attorney's application for resignation. The first two counts of the consolidated case involved Munson's having taken a check for $25,972.42 from a client, Betts Gordon (Gordon), "for safe keeping." The representation involved a probate matter. Shortly after obtaining the check, the attorney cashed the same and allegedly placed the funds in a zipper bag in an office safe. When several months passed and nothing occurred in the probate case, Gordon's sons sought a return of the monies. They filed a complaint with the Bar Association and Munson agreed to allow a Bar Association representative to come to his office and verify that the funds were being held there. When the Bar Association investigator arrived, Munson refused to allow the representative to count the monies. Several days later, the attorney deposited $25,972.42 in Gordon's account in Boatman's Bank in Tulsa. Initially, the Bar Association did not receive a response to the complaint filed in the cause. Munson appeared only upon a subpoena having issued. The attorney testified that he had mailed a response to the Bar Association from Tahlequah on November 28, 1992. Nevertheless, when the Bar Association received the response, it carried an Oklahoma City postmark of December 4th.

¶ 9 The third count arose out of the attorney having been appointed executor in the estate of David E. Deatherage on September 19th, 1989. Evidently, the attorney took this appointment during the time of his suspension in Munson I.8 In May of the following year, Munson opened an account in the First State Bank of Tahlequah in the estate's name. When the deceased's wife contacted him about social security benefits she was receiving for her minor daughter, the attorney suggested that she leave the monies with him until he could gain some guidance from the Social Security Administration. On September 21, 1992 the wife wrote Munson a check for $22,505.37. He deposited the check into the estate account which then contained approximately $1,885.83. Four days later, a check cleared the account dated September 14th in the amount of $17,184.58. The check was made payable to one of Munson's other clients as repayment for monies he was holding on her behalf.

¶ 10 The attorney filed his petition for reinstatement on August 3, 2009 supplementing it on the next day with affidavits of court clerks inadvertently left out of the original filing. The hearing on reinstatement was held before the trial panel on November 18, 2009. The trial panel issued its report on January 5, 2010 determining that Munson had not met the burden of proof for reinstatement and recommending that reinstatement be denied and costs be imposed. On the same day, the Bar Association filed an application for the assessment of costs in the amount of $1,705.47. The order setting a briefing schedule issued on January 6, 2010. Munson was given an extension to February 3rd for the filing of his brief in chief. The briefing cycle was completed on March 3, 2010 with the filing of the attorney's supplemental answer brief.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 11 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.9 Our determinations are made de novo.10 Although...

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