State ex rel. Okl. Bar Ass'n v. Loeliger

• Decision Date: 01 November 2005
• Docket Number: SCBD No. 5055.
• Citation: 2005 OK 79,127 P.3d 591
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel Lee LOELIGER, Respondent.
• Court: Oklahoma Supreme Court

127 P.3d 591

2005 OK 79

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel Lee LOELIGER, Respondent.

SCBD No. 5055.

Supreme Court of Oklahoma.

November 1, 2005.

Bar Discipline Proceeding.

¶ 0 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Daniel Lee Loeliger, with one count of professional misconduct associated with the respondent's misrepresentation to a client that he had secured a settlement when, in fact, the cause was time-barred by the statute of limitations. The respondent admitted his conduct. After a hearing, the trial panel recommended that the respondent be disciplined by a public censure and that costs be imposed. The trial panel did not discuss the charge of misrepresentation. We hold that: 1) clear and convincing evidence supports a determination that respondent is guilty of ethical violations; and 2) the respondent's misconduct, his lack of a prior disciplinary history, discipline administered in similar cases, and the fact that apparently his actions did not result in economic harm to his client warrants a sixty-day suspension and the payment of $348.42 in costs.

RESPONDENT SUSPENDED; COSTS IMPOSED.

Nathan Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Charles F. Alden, III, Oklahoma City, OK, for Respondent.

KAUGER, J.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Daniel Lee Loeliger, with one count of professional misconduct regarding his misrepresentation to a client that he had secured a settlement when, in fact, the case was time-barred by the statute of limitations. The Bar Association alleged that the respondent's behavior involved incompetent representation,¹ ineffective communication and consultation with clients,² failure to expedite litigation,³ misrepresentation of facts to his client, and engaging in conduct prejudicial to the administration of justice⁴ in violation of Rules 1.1, 1.3, 1.4, 3.2, and 8.4 of the Rules of Professional Conduct and 1.3 of the Rules Governing Disciplinary Proceedings.⁵

¶ 2 Upon a de novo review,⁶ we hold that: 1) clear and convincing evidence supports a determination that respondent is guilty of ethical violations; and 2) the respondent's misconduct, his lack of a prior disciplinary history, discipline administered in similar cases, and the fact that his actions did not result in any apparent economic harm to his client warrants a sixty-day suspension and the payment of $348.42 in costs.⁷

FACTS⁸

¶ 3 This case arises from respondent's relationship with a single client, Charles Sullivan (Sullivan). On October 21, 1998, Sullivan was injured while operating a forklift. Sullivan retained attorney Richard Berger (Berger) to represent him in a workers' compensation claim and a separate negligence action against Westquip, the manufacturer of the forklift. Berger filed the workers' compensation action on June 25, 1999, and ultimately settled the case in November of 2000. In October 2000, Berger filed a negligence action, but decided not to handle the matter further. On February 14, 2001, Berger dismissed the case without prejudice and withdrew from representing Sullivan. Berger wrote to Sullivan, informing him that he had one year to refile the case or it would be time-barred.⁹

¶ 4 In August of 2001, Sullivan met with respondent to discuss representation of Sullivan's negligence claim. Respondent asked for Sullivan's hospital records and workers' compensation records. Sullivan contends that he signed a contingency fee contract with respondent at this time. Respondent insists that no contract was ever signed.¹⁰ To date, no such contract has been found. After the initial meeting, Sullivan dropped off the documents at respondent's office, but they did not personally meet.

¶ 5 In October of 2001, Sullivan indicated to respondent that he would like to finish the case before the end of 2002. On January 18, 2002, respondent's father died of a sudden and unexpected heart attack. Respondent did not file any action on Sullivan's behalf before or after Sullivan's negligence claim became time-barred on February 14, 2002.

¶ 6 The next time respondent spoke to Sullivan, some six months later, respondent told Sullivan that he was negotiating with Westquip. Respondent informed Sullivan that Westquip had only offered a fifteen thousand dollar ($15,000) settlement. Respondent also confirmed to Sullivan that a claim had been filed on his behalf in federal court, when in fact, no such suit had been filed. Over the next eighteen months respondent continued to mislead Sullivan, telling Sullivan in October of 2003, that he and Westquip were still locked in heated negotiations over the negligence claim.

¶ 7 In January of 2004, Sullivan again asked for assurance from respondent that the case had been filed. Again, respondent misled his client, claiming that settlement negotiations were in their final stages and reassuring Sullivan that his petition had been filed. Sullivan requested a copy of the petition and on February 26, 2004, respondent faxed him the original petition filed by Berger some three years earlier. On the same day, respondent and Sullivan again discussed the alleged $15,000 settlement offer. Within days, respondent called to inform Sullivan that Westquip's offer was $5,800.

¶ 8 Finally, on March 2, 2004, respondent informed Sullivan that Westquip had increased its offer to $7,400. On March 7, 2004, Sullivan went to respondent's office where respondent tendered a check for $7,400. The check was funded by respondent's personal bank account. At this time, respondent also required Sullivan to sign a release form, which allegedly absolved Westquip of all liability in consideration of the $7,400 "settlement."

¶ 9 Respondent's inconsistent behavior aroused Sullivan's suspicion, prompting Sullivan to discover, via the internet, that respondent had never filed the claim against Westquip. Sullivan filed a grievance with the Bar Association on June 30, 2004. The Bar Association forwarded the grievance to the respondent on August 2, 2004, requesting a reply within two weeks. The Bar Association sent another letter on August 27, 2004, indicating that it had received only a partial, incomplete fax on the matter, and asking for a written response in five days. The Bar Association received a partial response from the respondent on September 7, 2004, which was dated August 16, 2004. On September 14, 2004, the Bar Association notified the respondent that it was opening the matter for a formal investigation. The Bar Association sent a final request for a response on October 6, 2004, and the respondent sent a second response letter to the Bar Association, which was received on October 12, 2004.

¶ 10 On May 10, 2005, the Bar Association filed this cause as a Rule 6 proceeding.¹¹ The respondent admitted and stipulated that his conduct violated the mandatory provisions of the Rules of Professional Conduct, with the exception of Rule 8.4(c).¹² A hearing was conducted before the trial panel on June 24, 2005, at which the respondent and his law partner were the only witnesses and the agreed stipulations were introduced as evidence.

¶ 11 At the hearing, the respondent testified regarding the circumstances surrounding the incident. He expressed remorse, acknowledged his wrongdoing and recognized how his behavior reflected poorly on the entire Bar. The respondent's law partner testified that the respondent personally disclosed the matter to him and that, regardless of what discipline was imposed, he would be willing to work with the respondent again.

¶ 12 On July 14, 2005, the trial panel filed its report, relying on the respondent's testimony and the agreed stipulations of the parties. It found that the respondent's misconduct violated the provisions of Rules 1.1, 1.3, 1.4, 3.2, and 8.4(a) and (d) of the Rules of Professional Conduct and Rule 1.3, Rules Governing Disciplinary Procedures, but made no specific finding regarding a violation of Rule 8.4(c).¹³ Although the Bar Association argued for a suspension of sixty days as an appropriate sanction, the trial panel recommended discipline by public censure and the imposition of costs.

¶ 13 The Bar Association filed its brief-in-chief and an unopposed application to assess costs on August 10, 2005. The respondent filed his response brief on August 25, 2005. On September 2, 2005, the Bar Association waived the opportunity to file a response brief.

I.

¶ 14 CLEAR AND CONVINCING EVIDENCE SUPPORTS A DETERMINATION THAT RESPONDENT IS GUILTY OF ETHICAL VIOLATIONS.

¶ 15 In disciplinary matters, this Court possesses exclusive original jurisdiction.¹⁴ We are not bound by agreed findings, conclusions of law or recommendations for discipline.¹⁵ Rather, the ultimate responsibility for imposition of professional discipline is solely within the purview of this Court.¹⁶ In considering the record before us, as well as the recommendations of the Professional Responsibility Tribunal, our standard of review is de novo.¹⁷ Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.¹⁸ The function of disciplinary proceedings is not punishment. Here, the purpose of discipline is to gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession.¹⁹

¶ 16 Respondent did not diligently and promptly represent his client. Rule 1.3 of the Rules of Professional Conduct states: "A lawyer shall act with reasonable diligence and promptness in representing a client." Although it is disputed as to when the respondent's representation of Sullivan began, it is undisputed that respondent was aware of Sullivan's genuine belief that such a relationship existed prior to February of 2002. The record also clearly establishes that respondent failed to take any action...