State ex rel. Okl. Bar Ass'n v. Harper, SCBD 4444.

• Citation: 2000 OK 6,995 P.2d 1143
• Decision Date: 01 February 2000
• Docket Number: No. SCBD 4444.,SCBD 4444.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant v. Charles C. HARPER, Respondent.
• Court: Supreme Court of Oklahoma

995 P.2d 1143

2000 OK 6

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant v. Charles C. HARPER, Respondent.

No. SCBD 4444.

Supreme Court of Oklahoma.

February 1, 2000.

Allen J. Welch, Oklahoma Bar Association, Oklahoma City, Oklahoma, Attorney for Complainant.

Jack S. Dawson, James A. Scimeca, Miller Dollarhide, Oklahoma City, Oklahoma, Attorney for Respondent.

HODGES, J.

I. OVERVIEW

¶ 1 Complainant, the Oklahoma Bar Association, alleged one count of misconduct warranting discipline against respondent attorney, Charles C. Harper (Respondent). The complaint alleged that Respondent had violated rule 4.2 of the Oklahoma Rules of Professional Conduct (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (1991) (prohibition against communications with a person known to be represented by an attorney). Respondent has not been disciplined or has not previously been the subject of a grievance. The Professional Responsibility Tribunal (PRT) found that Respondent had not violated rule 4.2 and recommended dismissal of the complaint.

II. FACTS

¶ 2 At the time of the alleged misconduct, Respondent represented Government Employees Insurance Company (GEICO). The representation arose out of an automobile accident involving Bobbie Tenequer (Tenequer), GEICO's insured. The allegations are that Respondent violated rule 4.2 of the ORPC by communicating with Tenequer concerning the accident without first getting the consent of Tenequer's attorney even though he knew that she was represented in the matter.

¶ 3 The underlying facts are as follows. On December 23, 1997, Tenequer, John McIntosh (Tenequer's boyfriend), and their baby were traveling on a rural road near Ponca City. The vehicle in which they were traveling was owned by Tenequer's father and insured through him by GEICO. The pickup struck some cattle which were in the roadway. It is unclear whether, at the time of the accident, Tenequer or her boyfriend was driving the pickup, but the police report shows that Tenequer was driving.

¶ 4 McIntosh and the baby were taken to the hospital in Perry, Oklahoma. The baby was uninjured but supposedly had problems sleeping for some time after the accident. McIntosh subsequently had knee surgery. He alleged that the knee injury for which he had surgery was caused by the accident. Tenequer allegedly suffered back or neck pain as a result of the accident and was treated by a chiropractor.

¶ 5 On January 13, 1998, attorney Kenny Jean (Jean) wrote two letters to GEICO. In the first letter, he identifies John McIntosh and Tenequer as his clients. Jean advised GEICO that he has been retained to represent McIntosh and Tenequer in their claims for benefits under the medical payment provision of the policy and possibly claims under the uninsured motorist provision of the policy. In the second letter, Jean identifies only McIntosh as his client on a personal injury claim for negligence against Tenequer. In the second letter, Jean states: "Investigation has determined that these injuries were proximately caused by the negligent acts, or failures to act, of your insured [Tenequer]."

¶ 6 On March 4, 1998, Jean sent GEICO a demand letter on behalf of the baby, Marxus. Jean claimed $411.30 on behalf of Marxus for medical bills and $3,000.00 for pain and suffering and offered to settle for $2,500.00. In the letter, Jean made it clear that he was representing interests adverse to Tenequer's when he stated:

[Y]our insured [Tenequer] is fully responsible for the accident in question, as the driver struck cattle in the roadway. She was obviously driving too fast for conditions, which were darkness, rain and fog and was, therefore, unable to stop her vehicle prior to the impact. It is also clear there is no evidence at all of any contributory or comparative negligence defense available to your insured, as my client was a faultless passenger and performed no improper action. In essence, I have no reservation as to trying this case before a jury of my client's peers for the full amount of damages listed above.

In a letter written on behalf of McIntosh to GEICO on March 18, 1998, Jean made this same statement regarding Tenequer's negligence.

¶ 7 In March of 1998, GEICO paid Tenequer's claim under the medical payments provision of the policy. Jean averred that the settlement of Tenequer's claim for medical payments left Tenequer with a possible uninsured motorist claim against GEICO and a liability claim against the owner of the cattle. Complainant asserts that Jean still represented Tenequer on these claims.

¶ 8 GEICO's representative Carl Wimberly interviewed McIntosh in Jean's office in August. At the time, Wimberly asked Jean if he knew how to reach Tenequer. Jean stated that Tenequer had moved and that he did not have her new address or telephone number. Jean stated that when Tenequer contacted him that he would in turn contact Wimberly. At the time of McIntosh's interview, Jean did not make any mention that he still represented Tenequer, neither did he infer anything to the contrary.

¶ 9 GEICO's claim log notes show that on August 12, 1998, Tenequer called GEICO to obtain the status of her son's claim. At the time, she informed GEICO that she was dismissing Jean as of that day. She was told to have Jean notify GEICO immediately.

¶ 10 Then on August 19, 1998, believing that Tenequer was no longer represented by an attorney, Wimberly conducted a telephone interview with Tenequer. Tenequer's comments during the interview prompted Wimberly to ask Tenequer if Jean still represented her. Tenequer replied that Jean told her that she did not have a case against the cattle owner, that it was up to her to discover how the cattle got out of the fence, and that Jean had basically done nothing.

¶ 11 At the end of the interview, Tenequer informed Wimberly that, contrary to her previous statements, McIntosh was actually driving the vehicle at the time of the accident. An entry in GEICO's files on August 21, 1998, indicates Wimberly thought Tenequer was not represented by an attorney. Because of Tenequer's change in testimony in which she stated that McIntosh was driving, GEICO contacted Respondent and asked him to take Tenequer's statement under oath.

¶ 12 In preparation for taking Tenequer's statement, GEICO sent Respondent a copy of Intosh's statement given to Wimberly, a copy of Tenequer's statement given to Wimberly, a field report from Wimberly to GEICO, and the claim log notes. These records reflect that Tenequer was no longer represented as of August 21, 1998, at the latest. The respondent arranged to take Tenequer's statement on October 20, 1998, in Lawton, Oklahoma.

¶ 13 At the beginning of the statement, Respondent asked Tenequer if she would like to have a lawyer present. Tenequer replied that she saw no need to have a lawyer present. She did not mention that she was represented by Jean. During the statement, Respondent asked Tenequer if Jean was still representing her son, Marxus, through her. Tenequer answered that Jean still represented Marxus only on the medical bills and that Marxus was not making a claim against her. Tenequer asked Respondent if she had a claim against the owner of the cattle to which he responded that he did not know but that the GEICO was looking into the question for possible reimbursement of what it had paid out on property damage.

III. PROCEDURAL HISTORY

¶ 14 Jean filed a grievance with Complainant. Complainant then filed a complaint alleging that Respondent had violated rule 4.2 of the ORPC by communicating with Tenequer even though he knew that she was represented by an attorney. The PRT held a hearing on the matter. At the hearing, Jean testified that, when Respondent took Tenequer's statement, Jean still represented Tenequer on an uninsured motorist claim. Jean posited that he was investigating the possibility that the cattle were on the road because of a connection with a vehicle, giving Tenequer a possible claim under the uninsured motorist provisions of the policy.

¶ 15 A transcript of Tenequer's statement under oath was submitted into evidence. It reflects that the subject of Respondent's communication with Tenequer was GEICO's responsibility for liability claims made against Tenequer by McIntosh. Wimberly testified at the hearing that he had "no knowledge that [Jean] supposedly represented [Tenequer]." Likewise, Respondent's uncontradicted testimony was that, at the time he took her statement, he did not know that Jean represented Tenequer. The respondent testified that he believed that it would be a violation of rule 1.7 of the ORPC¹ for Jean to represent both McIntosh, the passenger, and Tenequer, the driver of the vehicle at the time of the accident. The testimony was that it would be highly unusual for the same attorney to represent both the insured driver of a vehicle and the passenger making a claim against the driver. Complainant presented no evidence that Respondent had actual knowledge that Jean represented Tenequer at the time of the hearing.

IV. ANALYSIS

¶ 16 This Court's review of the record is de novo. State ex rel. Oklahoma Bar Ass'n v. Wilkins, 1995 OK 59, ¶ 12, 898 P.2d 147, 150. Even though this Court is not bound by the PRT's recommendations, they are noted. Before this Court will impose discipline, the complainant must prove the charges by clear and convincing evidence. Id.

¶ 17 Rule 4.2 of the Oklahoma Rules of Professional Conduct, Okla. Stat. tit. 5, ch. 1, app. 3-A (1991) provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The comments state:

The prohibition of communication with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means

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