Reinstatement of Kamins, Matter of, 3400

• Decision Date: 29 March 1988
• Docket Number: No. 3400,3400
• Citation: 1988 OK 32,752 P.2d 1125
• Parties: In the Matter of the REINSTATEMENT OF Gerald E. KAMINS, Applicant, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD
• Court: Oklahoma Supreme Court

Page 1125

752 P.2d 1125

1988 OK 32

In the Matter of the REINSTATEMENT OF Gerald E. KAMINS Applicant, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 3400.

Supreme Court of Oklahoma.

March 29, 1988.

Application for Reinstatement.

Applicant seeks reinstatement to membership in the Oklahoma Bar Association following applicant's resignation from the Bar pending disciplinary proceedings. Trial Panel found that applicant had not established the prerequisites to allow reinstatement. Upon independent review this Court finds on the evidence that applicant has not established, by clear and convincing evidence, that he is presently possessed of the good moral character to entitle him to readmission and that he has not demonstrated that his conduct will conform to the standards required of a member of the Bar.

APPLICATION DENIED.

K. Lynn Anderson, Gen. Counsel, Oklahoma City, for Oklahoma Bar ass'n.

Gerald E. Kamins, pro se.

LAVENDER, Justice:

Applicant, Gerald E. Kamins, was admitted to the Oklahoma Bar Association in 1964. In 1977 this Court entered an order suspending Kamins from the practice of law for a period of four months. The genesis of that disciplinary action was Kamins' admission that he had commingled client funds with his own personal funds.

On April 7, 1982 Kamins appeared for deposition regarding a number of formal grievances filed against Kamins by his clients. At this deposition Kamins was informed by the General Counsel for the Oklahoma Bar Association that whether or not Kamins made restitution to his clients in connection with these grievances would not influence the discipline which might be imposed. Kamins questioned whether there was a way to avoid formal prosecution regarding the grievances filed. Kamins was informed that he could avoid prosecution by execution of his resignation from the Bar pending disciplinary proceedings. During the course of this deposition Kamins also informed counsel for the Bar of his imminent filing of bankruptcy proceedings.

On April 16, 1982 Kamins executed his resignation from the Oklahoma Bar Association pending disciplinary proceedings. The resignation acknowledged the filing of six formal grievances by clients against Kamins. Two of these grievances, filed by Robert Page and Marianne I. McDonald, alleged that Kamins had failed to account for funds properly belonging to the client. In the course of the April 7 deposition Kamins had admitted that a check belonging, at least partially, to Page had been deposited in a personal account belonging to Kamins. The four remaining grievances represented allegations of neglect and/or mishandling of client affairs.

Kamins' resignation was accepted, and, on application of the Bar Association, costs were assessed against Kamins in the sum of $612.50 and ordered paid within ninety days of April 26, 1982.

On March 24, 1987, Kamins filed a petition for reinstatement to membership in the Oklahoma Bar Association and to the Roll of Attorneys. This application was referred to the Professional Responsibility Tribunal and a trial panel was appointed to hold a hearing on the matter. ¹ Because Kamins, in his testimony in the deposition of April 7, 1982 had attributed problems in the conduct of his affairs as an attorney to his alcoholism, General Counsel for the Oklahoma Bar Association requested, prior to the hearing, that Kamins be examined by a mental health professional to assess his competency to practice law. Kamins was subsequently examined by a psychiatrist appointed by the Professional Responsibility Tribunal.

Evidentiary hearings were held on Kamins' application on June 24 and September 10, 1987. In support of his application Kamins initially presented seven witnesses, including himself. These witnesses testified as to Kamins legal career prior to the problems which culminated in his resignation. Kamins' witnesses testified that he had offered distinguished service to the Bar in his early career. Other of those witnesses testified as to Kamins' dedication to the cause of Alcoholics Anonymous and his service in that organization since the date he had stopped drinking in December 1979. Kamins also offered the testimony of an expert on alcoholism who testified that Kamins' history provided an excellent basis for a prognosis that alcoholism would not affect Kamins' future performance as an attorney. All of these witnesses concluded that, to the best of their knowledge, Kamins was now ready for readmission to the Bar.

Of special interest, however, is the testimony of Kamins himself. He testified regarding his activities since his resignation by which he had maintained familiarity with the legal profession and with the law. He also described the problems which gave rise to his resignation. Kamins attributed his actions at that period in his life to the aftermath of alcoholism, acknowledging that the actual incidents involved took place one to two years following the actual cessation of Kamins' drinking. Kamins admitted that he had not made restitution as to the claims of clients against him, but stated that the Counsel for the Bar had advised him at the time of his resignation that restitution did not matter. He stated his willingness to make restitution now "if that's an issue," regarding his reinstatement. Kamins also admitted filing a petition for bankruptcy dated the same date as the execution of his resignation. This petition listed as unsecured creditors three of the clients who had filed the grievances against Kamins listed in the resignation and a fourth who subsequently filed a grievance based on alleged mishandling of client's funds and failure to account. Kamins admitted that he discharged these debts through bankruptcy but that one had been made the subject of a challenge as to dischargeability since it was based on fraud. [See 11 U.S.C. § 523(a)(4) ]. This debt was stipulated to by Kamins as non-dischargeable at a lowered amount. Kamins, however, acknowledged that the debt had not yet been paid. Kamins attributed his failure to attempt to make restitution, beyond the advice of others, to the low levels of income he had been able to sustain since his resignation.

When questioned as to the matters reflected in his resignation, Kamins attempted to portray them as being of little substance and as excuseable actions. Just as his failure to make restitution was attributed to lack of funds, Kamins stated that his failure to pay the costs ordered paid in connection with his resignation was also due to lack of funds. Kamins was also questioned about his failure to comply with Rule 9.1. ² He stated that he had been in substantial compliance with the rule by giving actual notice of his resignation to his clients although he acknowledged that he had not been in full compliance with the rule since he had not filed the required affidavit.

Counsel for the Bar Association actively opposed Kamins' reinstatement and presented testimony relevant to that opposition. Three witnesses were presented who, as former clients of Kamins, testified as to actions of Kamins which formed the basis of their complaints to the Bar which were separate from the six counts acknowledged in Kamins' resignation. The first, Brooks Bearden, testified that Kamins had represented him in a claim against an insurance company. The claim had been settled for $1,721.50 in March of 1982. Kamins brought the draft for this amount to Bearden and had him endorse it. Kamins did not turn the draft over to Bearden but kept possession and cashed it on his own behalf. On April 2, 1982 Kamins left a cashiers check for $1,000 in Bearden's mail box with a note that it was a "loan" because that draft had not yet been cleared. Bearden subsequently determined that the draft had been cashed at least one week prior to April 2. In spite of efforts by Bearden, Kamins never accounted for the remaining $721.50. Bearden was subsequently listed as an unsecured creditor on Kamins' bankruptcy petition filed April 16, 1982. Bearden also testified that Kamins had never contacted him regarding the fact that Kamins had resigned from the Bar.

Also testifying as former clients were Mary Geenen and her son Joseph E. Geenen, Jr. Mrs. Geenen contacted Kamins in 1980 concerning the death of her husband who had been killed in an on the job accident. Kamins agreed to represent Mrs. Geenen and her children in a workers' compensation action for ten percent of the recovery and also entered into a contingency fee agreement to represent her in a separate wrongful death action. ³ The workers' compensation claim was settled for $70,000. The compensation court approved this settlement and set Kamins' fee as $5,000. On July 8, 1980, Mrs. Geenen received the bulk of the settlement checks. Although Kamins had previously received his $5,000 fee directly from the insurance carrier, Kamins, on this date, demanded payment of his $7,000 "fee" plus an advance of $2,500 to do research on the wrongful death case. On September 18, 1980 Kamins delivered a check to Mrs. Geenen dated payable on September 25, 1980 under the pretense that this was a refund of a fee overpayment. Kamins' attempted wrongful death action was dismissed in district court for lack of jurisdiction and an appeal from that dismissal was also dismissed for lack of jurisdiction on March 15, 1982. On April 14, 1982 Kamins sent a letter to Mrs. Geenen asking her to agree to a dismissal of the wrongful death action. Mrs. Geenen refused to sign and demanded the refund of her $2500. Neither the $2500 or the $2000 payment of fees above the approved fee for the compensation case were ever repaid in whole or in part to Mrs. Geenen and no accounting was ever offered. Mrs. Geenen also testified that Kamins had never contacted her regarding his resignation from the Bar.

Counsel for the Bar also presented the testimony of the psychiatrist who had examined Kamins on appointment by the Professional...