In the Matter of Reinstatement of Massey

• Decision Date: 11 April 2006
• Docket Number: SCBD No. 4886.
• Citation: 136 P.3d 610,2006 OK 21
• Parties: In the Matter of the REINSTATEMENT OF Thomas Allen MASSEY to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

136 P.3d 610

2006 OK 21

In the Matter of the REINSTATEMENT OF Thomas Allen MASSEY to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 4886.

Supreme Court of Oklahoma.

April 11, 2006.

¶ 0 Petitioner, Thomas Allen Massey filed a petition for reinstatement to membership in the Oklahoma Bar Association (OBA). The OBA, through the Office of the General Counsel, opposes reinstatement and, after hearing, a Professional Responsibility Tribunal trial panel recommends denial of reinstatement. After de novo review we deny reinstatement.

REINSTATEMENT DENIED; COSTS ASSESSED.

Jack S. Dawson, Miller Dollarhide, Oklahoma City, OK, for petitioner, Thomas Allen Massey.

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

LAVENDER, J.

¶ 1 Petitioner, Thomas Allen Massey filed a petition for reinstatement to membership in the Oklahoma Bar Association (OBA). The matter is before us pursuant to Rule 11 (Reinstatement), Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.1, App.1-A, as amended. The OBA, through the Office of the General Counsel, opposes reinstatement and a Professional Responsibility Tribunal trial panel (PRT) that held a hearing in the matter, recommends reinstatement be denied. After de novo review we deny reinstatement.

¶ 2 This petition for reinstatement was filed in February 2004.¹ The PRT held a hearing on September 30, 2004 and filed its trial panel report in November 2004. The parties' briefs were filed in December 2004. The record (including the transcript and exhibits) was filed in March of 2005.

¶ 3 In March of 1993 in Supreme Court Bar Docket (SCBD) Case Number 3905, petitioner filed an affidavit requesting he be allowed to resign his membership in the OBA and relinquish his right to practice law. At the time, twenty (20) grievances were pending against him with the OBA. The OBA requested this Court to approve petitioner's resignation pending disciplinary proceedings, which the Court did by an Order filed March 22, 1993. The grievances against him as spelled out in his March 1993 affidavit involved multiple and varied claims of misconduct. The claimed misconduct included, but was not limited to, neglect of client matters, failure to communicate with clients, receiving referrals from one or more other law firms or attorneys without authorization from the client, misrepresentation to a client and failure to provide appropriate accountings to clients. As will be explored in more detail below, petitioner on multiple occasions was also embezzling money from his attorney trust fund account, conduct which eventually led to his pleas of guilty and convictions on five State felony charges, four of embezzlement by an attorney and one of forgery in the second degree, based on a plea bargain/agreement.

¶ 4 Petitioner was admitted to practice law in Oklahoma in 1968. At the time of his offending conduct he had been an attorney for over two decades. We do not deem it necessary to detail every position petitioner has held from 1968 to the present. Early in his legal career he worked as an Assistant District Attorney in Hughes County, Oklahoma. He then worked as an attorney with the United States Securities and Exchange Commission.² He also was a general counsel for a corporation in Pennsylvania for a period of time.³ Apparently, from 1976 until some time in 1988 he was a self-employed attorney in Oklahoma, although during some of this period he also worked for the United States Military as a contracting or procurement officer, having joined the National Guard in 1953. For about two years in the late 1980s he worked for the United States Department of Defense as a Deputy to the Secretary of Defense. From about May 1991 to about February 1993 he was self-employed by Massey & Associates in Oklahoma City, basically his law firm.

¶ 5 Petitioner started Massey & Associates after agreeing with another law firm to accept overflow referrals of personal injury type cases. He started with only a secretary, but the case load was large and the firm grew to about twenty (20) employees. At some point in time during the existence of Massey & Associates petitioner began embezzling money from his attorney trust fund account to assist him in running the law firm, including making payroll. Petitioner appeared to testify at the PRT hearing in this matter that he did not pay himself (i.e., his salary) with any of the embezzled funds and that he paid himself from other cases he was working on. In his December 1, 2004 brief filed in this matter at note 2, page 13 he appears to have recognized the personal benefit to himself by his misconduct in that it is stated, "[petitioner] did benefit by keeping his office open and his staff paid, including his own salary." As we understand his testimony, initially he paid the money back, but at some point in time he was not in a position to do so ¶ 6 At least fifty (50) victims were involved and as we understand the record at least $136,000.00 was embezzled by petitioner. In other words, petitioner's misconduct was not an isolated event, but was widespread. The OBA Client's Security Fund paid out almost $53,000.00 as a result of petitioner's misconduct. Petitioner has made restitution in the approximate amount of $136,000.00, either through payments made to the Oklahoma Department of Corrections (DOC) or the OBA. The final payment was made to the OBA in April 2004.

¶ 7 Criminal charges were filed against petitioner in Oklahoma County. Pursuant to a plea bargain/agreement he pled guilty to five State felony charges, four of embezzlement by an attorney and one of forgery in the second degree. He was sentenced on the convictions in June 1995. Title 21 O.S.1991, § 1454⁴, the embezzlement statute to which he pled guilty, and was convicted and sentenced as to four charges, provided:

If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.

Title 21 O.S.1991, § 1592, the forgery in the second degree statute to which he pled guilty, and was convicted and sentenced as to one charge, provides:

Every person who, with intent to defraud, utters or publishes as true any forged, altered or counterfeited instrument or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be punishable, knowing such instrument or coin to be forged, altered or counterfeited, is guilty of forgery in the second degree.

¶ 8 The Judgment and Sentence in each criminal case (all dated June 29, 1995) and some other pertinent documents from the criminal cases are in this record. They show petitioner received five year suspended sentences on the four embezzlement convictions, three of the sentences (CF-94-6092, CF-94-6093 and CF-94-6094) to run concurrently, but consecutively to the remaining conviction in CF-94-6091. In other words, after the five year suspended sentence in CF-94-6091 was served, he would begin to serve the five year suspended sentences (concurrently) for the other three embezzlement convictions, for a total of ten (10) years on suspension. On the remaining conviction in CF-94-6095 for forgery in the second degree he received a seven year suspended sentence, which was to run concurrent with the sentence in CF-94-6091. Thus, petitioner's suspended sentence(s) did not terminate until on or about June 29, 2005, i.e., subsequent to the time he filed this petition for reinstatement.⁵

¶ 9 The record indicates petitioner receives a military pension, he is seventy (70) years old and he is married. Since his resignation in 1993 he has worked at various jobs. These have included sales positions. They have also included loan officer positions in the mortgage business. At the time of the PRT hearing his testimony indicated he was in the commercial mortgage business and his OBA Reinstatement Questionnaire indicates he was manager of a lending corporation. No evidence was presented that petitioner has engaged in the unauthorized practice of law since his resignation from the OBA.

¶ 10 Petitioner and five other witnesses testified on his behalf at the PRT hearing. These five witnesses have known him for varying lengths of time. They were his attorney in the criminal cases, his current church pastor, his CPA (also an attorney) and two other attorneys. Except for his pastor, all knew him prior to the offending conduct. These five witnesses, in essence, all believe petitioner is currently a good morally fit person. Evidence also showed petitioner is involved in his church and more than one of its activities or programs. The OBA called only one witness at the PRT hearing, an investigator employed by the OBA. The OBA does not contend petitioner has engaged in any bad behavior subsequent to his resignation.

¶ 11 Petitioner's own testimony seems to indicate he understands the wrongfulness of his conduct and the disrepute it brought upon the entirety of the legal profession. Petitioner also attempted through his testimony to assure this Court that he would never again engage in such criminal-type conduct. As we understand his testimony he also indicates he has changed from 1993, in that back then he pushed the envelope on taking risks, but today he would not take such risks.

¶ 12 The standard of review and factors considered in reinstatement cases after a resignation pending disciplinary proceedings were set out in Matter of Reinstatement of Blevins, 2002 OK 78, 59 P.3d 510. There, the following was stated:

When...