State ex rel. Okl. Bar Ass'n v. Harper, No. SCBD 4444.

CourtSupreme Court of Oklahoma
Writing for the CourtHODGES, J.
Citation2000 OK 6,995 P.2d 1143
PartiesSTATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant v. Charles C. HARPER, Respondent.
Docket NumberNo. SCBD 4444.
Decision Date01 February 2000

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.

995 P.2d 1144
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

995 P.2d 1145
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

995 P.2d 1146
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...

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4 practice notes
  • State ex rel. Oklahoma Bar Ass'n v. Scroggs, No. O.B.A.D. 1485
    • United States
    • Supreme Court of Oklahoma
    • March 4, 2003
    ...Bolusky, 2001 OK 26, 23 P.3d 268, (suspension for two years and one day). 12. See, e.g., State ex rel. Oklahoma Bar Association v. Harper, 2000 OK 6, ¶ 25, 995 P.2d 1143, 1148; State ex rel. Oklahoma Bar Association v. Upton, 1999 OK 92, ¶ 22, 991 P.2d 544, 548-549; State ex rel. Oklahoma B......
  • Weeks v. Indep. School Dist. No. I-89, I-89
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 25, 2000
    ...Ann. tit. 70, 509.2(A)(1-3). 10. Barringer submitted as supplemental authority to this court State ex rel. Okla. Bar Ass'n v. Harper, 995 P.2d 1143 (Okla. 2000), to support her argument that no violation of Rule 4.2 occurred. In Harper, the court found no violation of Rule 4.2 because the b......
  • State v. Wagner, SCBD No. 4897.
    • United States
    • Supreme Court of Oklahoma
    • January 16, 2007
    ...impose costs against a Respondent who has not been shown to have violated an ethical rule.9 See State ex rel. Oklahoma Bar Ass'n v. Harper, 2000 OK 6, 995 P.2d 1143. Pursuant to Rule 6.16, RGDP, the costs of investigation, the record and disciplinary proceedings shall be surcharged "[w]here......
  • Weber v. Clark Cnty., Case# 2:10-cv-01990-KJD-RJJ
    • United States
    • U.S. District Court — District of Nevada
    • November 2, 2011
    ...2nd day of November, 2011 ________________________________ UNITED STATES DISTRICT JUDGEPage 6State ex. rel. Oklahoma Bar Ass'n v. Harper2000 OK 6995 R2d 114371 OBJ 400Case Number: SCBD-4444Decided: 02/01/2000Supreme Court of OklahomaSTATE OF OKLAHOMA ex rel, Oklahoma Bar Association, Compla......
4 cases
  • State ex rel. Oklahoma Bar Ass'n v. Scroggs, No. O.B.A.D. 1485
    • United States
    • Supreme Court of Oklahoma
    • March 4, 2003
    ...Bolusky, 2001 OK 26, 23 P.3d 268, (suspension for two years and one day). 12. See, e.g., State ex rel. Oklahoma Bar Association v. Harper, 2000 OK 6, ¶ 25, 995 P.2d 1143, 1148; State ex rel. Oklahoma Bar Association v. Upton, 1999 OK 92, ¶ 22, 991 P.2d 544, 548-549; State ex rel. Oklahoma B......
  • Weeks v. Indep. School Dist. No. I-89, I-89
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 25, 2000
    ...Ann. tit. 70, 509.2(A)(1-3). 10. Barringer submitted as supplemental authority to this court State ex rel. Okla. Bar Ass'n v. Harper, 995 P.2d 1143 (Okla. 2000), to support her argument that no violation of Rule 4.2 occurred. In Harper, the court found no violation of Rule 4.2 because the b......
  • State v. Wagner, SCBD No. 4897.
    • United States
    • Supreme Court of Oklahoma
    • January 16, 2007
    ...impose costs against a Respondent who has not been shown to have violated an ethical rule.9 See State ex rel. Oklahoma Bar Ass'n v. Harper, 2000 OK 6, 995 P.2d 1143. Pursuant to Rule 6.16, RGDP, the costs of investigation, the record and disciplinary proceedings shall be surcharged "[w]here......
  • Weber v. Clark Cnty., Case# 2:10-cv-01990-KJD-RJJ
    • United States
    • U.S. District Court — District of Nevada
    • November 2, 2011
    ...2nd day of November, 2011 ________________________________ UNITED STATES DISTRICT JUDGEPage 6State ex. rel. Oklahoma Bar Ass'n v. Harper2000 OK 6995 R2d 114371 OBJ 400Case Number: SCBD-4444Decided: 02/01/2000Supreme Court of OklahomaSTATE OF OKLAHOMA ex rel, Oklahoma Bar Association, Compla......

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