State ex rel. Oba v. Benefield, SCBD No. 4835.

• Decision Date: 25 October 2005
• Docket Number: SCBD No. 4835.
• Citation: 125 P.3d 1191,2005 OK 75
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry W. BENEFIELD, Respondent.
• Court: Oklahoma Supreme Court

125 P.3d 1191

2005 OK 75

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry W. BENEFIELD, Respondent.

SCBD No. 4835.

Supreme Court of Oklahoma.

October 25, 2005.

Original Proceeding for Attorney Discipline.

¶ 0 The Oklahoma Bar Association filed a complaint against the respondent alleging violations of rules 1.1, 1.3, 1.4, 1.5, and 8.4(a) and (d) of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A, and rule 1.3 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A. The Professional Responsibility Tribunal found that the respondent had violated rules as alleged and recommended six-month probation.

RESPONDENT SUSPENDED FOR ONE YEAR; ORDERED TO PAY COSTS.

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

Douglas L. Parr, Oklahoma City, OK, for Respondent.

TAYLOR, J.

¶ 1 The Oklahoma Bar Association (the OBA), filed a complaint against attorney Barry W. Benefield (Respondent). The OBA alleges that by his neglectful acts, Respondent violated rules 1.1,¹ 1.3,² 1.4,³ 1.5(a),⁴ 8.4(a), and 8.4(d)⁵ of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A (ORPC), and rule 1.3⁶ of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A (RGDP),⁷ and that he should be disciplined.

¶ 2 The first issue before this Court is whether Respondent violated the ORPC's and the RGDP's rules governing attorneys' conduct. If so, the second issue is what discipline should be imposed on Respondent. We find that Respondent has violated the ORPC's and the RGDP's rules governing attorney conduct. Because Respondent's serial neglect, six counts from 1991 through the present, shows a pattern of misconduct, we determine Respondent should be suspended from the practice of law for one year. Further, Respondent shall pay the costs of these proceedings.

I. BACKGROUND FACTS

¶ 3 The record includes the parties' stipulations, a transcript of the hearing, and documentary evidence. The factual stipulations are not inconsistent with the record and are adopted by this Court. See State ex rel. Oklahoma Bar Ass'n v. Chapman, 2005 OK 16, ¶¶ 11-12, 114 P.3d 414, 416. To the extent that the stipulated mitigation is inconsistent with the record or is irrelevant as discussed below, the stipulations are rejected. See id. The record shows the following facts.

¶ 4 Respondent was admitted to the practice of law in 1967. Respondent has been disciplined two times previously. Respondent was first disciplined in April of 1991 by the Professional Responsibility Commission (the Commission). The Commission privately reprimanded Respondent for neglecting a client matter. See RGDP R. 5.3(d). Respondent had been retained to locate the birth mother and acquire an original birth certificate for a client. He located the birth mother but failed to take steps to obtain the birth certificate. The OBA notified Respondent of the grievance and of the need to respond. After he did not respond in writing as required, see RGDP R. 5.2, his response was obtained by deposition pursuant to a subpoena.

¶ 5 In 2002, Respondent was again disciplined when this Court suspended him from the practice of law for sixty days. See State ex rel. Okla. Bar Ass'n v. Benefield, 2002 OK 37, 51 P.3d 1198 (Benefield I). In that proceeding, Respondent was disciplined for three counts of client neglect and one count of failing to respond to the OBA's request for information regarding the grievances. This Court found Respondent had been neglectful, rather than deliberate, but had a pattern of neglect. Id. at ¶ 15, 51 P.3d at 1201. Respondent was remorseful and had reimbursed the clients' fees.

II. CURRENT CHARGES

¶ 6 The first count in this proceeding involves Rowdy Baxter. The second count involves Jeffrey Hunter. The following facts are supported in the record and show Respondent violated the ORPC and the RGDP.

A. COUNT I

¶ 7 In October or November of 2002, Respondent agreed to represent Rowdy Baxter on a misdemeanor criminal charge. The case was assigned to the Honorable Russell Hall, Special Judge for Oklahoma County District Court. Had he been called as a witness, Baxter would have testified he paid Respondent $100.00 and later left $300.00 at Respondent's office with a woman claiming to be Respondent's girlfriend. Respondent contends he did not receive any payment from Baxter. Respondent recalls Baxter was to remove trash for him in exchange for $100.00 of the fee but Baxter never performed this service.

¶ 8 Respondent lost personal and telephone contact with Baxter. Although Respondent negotiated a plea agreement for Baxter, he never informed Baxter of the agreement. Based on his assertion that he could not contact Baxter by telephone, Respondent sought and obtained at least three continuances of Baxter's hearings. Baxter appeared for several hearings only to discover Respondent had continued his case. There is no evidence Respondent ever utilized the United States mail service to inform Baxter of the continuances, to inform him of the plea agreement, or to otherwise contact him.

¶ 9 On February 12, 2003, Respondent appeared at 8:45 a.m. in Cleveland County District Court on another matter. On the same day, Baxter appeared for his hearing which was set for 9:00 a.m. in Oklahoma County. Respondent did not appear. Respondent had not informed Judge Hall or Baxter of his scheduling conflict or of his potential lateness for the hearing. When Respondent got to Judge Hall's courtroom after 11:00 a.m., no one was there. Respondent assumed either Baxter had failed to appear or the case had been continued for at least a week. Respondent did not check the case's status before leaving the courthouse.

¶ 10 When Respondent failed to appear at the February 12th hearing, Judge Hall rescheduled it for the next day, February the 13th. On February 13, Baxter again appeared and Respondent did not. Judge Hall appointed a public defender to represent Baxter. On the advice of the public defender, Baxter entered a guilty plea. Judge Hall reported Respondent's failure to appear to the OBA's general counsel. He wrote: "Mr. Barry Benefield abandoned his client.... On the 8th time on my docket[,] I had the public defender do the plea." The OBA opened an investigation into the matter. Thereafter, Respondent wrote Judge Hall an apology and paid the cost of the public defender's services.

B. COUNT II

¶ 11 In February of 2003, Respondent was retained to represent Jeffrey Hunter in a felony case in Caddo County. Hunter's sister paid Respondent $300.00 to present her brother. Respondent agreed to negotiate for a better plea agreement than the ten years incarceration offered by the district attorney's office.

¶ 12 Respondent asserts that he contacted Assistant District Attorney Jason Glidewell about drug offender work camp which might have reduced Hunter's incarceration time. Mr. Glidewell does not remember this discussion.

¶ 13 Because of potential scheduling conflicts, Respondent asked Tony Burns, an attorney from Caddo County, to stand in for him at the hearing for entering a plea. Respondent informed Burns that he believed the terms of the plea agreement included a recommendation for drug offender work camp. Burns contacted the district attorney's office to confirm the agreement only to discover the work camp recommendation was not memorialized in the district attorney's file. If Burns had been called to testify, he would have stated he called Respondent's office and left a message that the Hunter case had not been concluded. Respondent contends he did not receive the message and assumed Hunter's case was concluded. Respondent admits he did not contact Burns or the court to confirm the status of the case.

¶ 14 Hunter's case remained set for jury trial for April 7, 2003. Because Respondent did not appear in court on April the 7th, and Hunter was unwilling to accept the district attorney's plea offer of ten years incarceration, the court continued the trial until April 10, 2003. When Respondent failed to appear on April 10, 2003, the court appointed a public defender to represent Hunter. The public defender negotiated a plea, and Hunter was sentenced to eight years incarceration.

¶ 15 The presiding judge, the Honorable David E. Powell, contacted the OBA's general counsel complaining Respondent had failed to appear for the jury trial. He included a copy of the transcript of the April 10 hearing at which Hunter entered his plea. This transcript was included in the record of these proceedings as an exhibit.

III. PROFESSIONAL RESPONSIBILITY TRIBUNAL REPORT

¶ 16 The Professional Responsibility Tribunal (PRT) found that the current misconduct "was not of the same nature as" the misconduct addressed in the previous disciplinary proceedings. Finding Respondent had violated the ORPC and the RGDP, the PRT concluded that an appropriate discipline would be six-month probation and that Respondent should pay the costs of the proceedings. Although the PRT recommended a six-month probation, it did not specify any terms of the probation or consequences for violating the probation. The PRT did recommend that the OBA's law office management division be directed to assist and monitor Respondent during the six-month probation. The onus of the recommendation was directed at the OBA rather than the Respondent.

¶ 17 The parties claim that the PRT recommended a public reprimand. In adopting this position, both parties rely on the presiding master's oral statement that Respondent should be publicly reprimanded. We cannot agree with this supposition. Rule 6.13 of the RGDP states that the PRT shall file a written report which includes a recommendation as to discipline. Since the PRT did not include a recommendation of public reprimand in its report, this Court can only conclude that the PRT reconsidered and eliminated this recommended discipline.

IV. DE NOVO...