State ex rel. Okl. Bar Ass'n v. Southern, SCBD-4491.

• Decision Date: 07 November 2000
• Docket Number: No. SCBD-4491.,SCBD-4491.
• Citation: 15 P.3d 1,2000 Okla. 88,2000 OK 88
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Frederick Warren SOUTHERN, Respondent.
• Court: Oklahoma Supreme Court

15 P.3d 1

2000 OK 88

2000 Okla. 88

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Frederick Warren SOUTHERN, Respondent.

No. SCBD-4491.

Supreme Court of Oklahoma.

November 7, 2000.

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

Donald W. Davis, Oklahoma City, OK, for Respondent.

BOUDREAU, J.

¶ 1 The Oklahoma Bar Association brought Rule 6 disciplinary proceedings against Respondent attorney, Frederick Southern, in a Complaint and Amended Complaint alleging a collective total of five counts of misconduct relating to the neglect of five clients in Respondent's charge.

¶ 2 The Professional Responsibility Tribunal held a hearing on April 26, 2000. The Tribunal recommended Respondent receive a private reprimand with a period of probation. The terms of probation included the advice and assistance of Lawyers Helping Lawyers, an assessment by the bar association's law office management services, continued good standing in the bar with no disciplinary action during the probationary period, and regular counseling with medical supervision. While the bar association agreed with the Tribunal's recommendation of probation and its conditions, it requested a public censure instead of a private reprimand.

¶ 3 The five counts alleged against Respondent are similar, each consisting of client complaints for neglect of their respective cases. The bulk of Respondent's misconduct occurred in 1997 and 1998. The client neglect took the form of failing to return phone calls, failing to work the files and in general failing to handle the cases with competence and diligence. The bar also alleged that Respondent repeatedly failed to respond to the bar association when it contacted him about the client complaints.

¶ 4 At the time Respondent was failing to care for his clients, he suffered from an illness which completely destroys the body's ability to produce or store vitamin B-12. The illness caused Respondent to experience severe short-term memory lapses, erratic behavior and general physical illness, accompanied by weakness and fatigue. The B-12 illness exacerbated Respondent's already depressed state, caused by deaths in his immediate family. Respondent's illness was so severe he was eventually hospitalized. Ultimately, several biopsies in 1999 revealed Respondent suffered from the B-12 deficiency illness. Prior to the diagnosis, Respondent sought treatment and counseling for depression with only marginal success, as the B-12 illness was the primary factor in his behavior. After receiving treatment and regular B-12 injections, Respondent began timely and effectively responding to the bar's requests.

¶ 5 For the reasons set out in this opinion, this Court imposes a public censure accompanied by a period of probation and conditions in keeping with those outlined by the Tribunal and bar association.¹ With regard to part "b" this Court will order the Law Office Management assessment stipulated to by the parties. However, we alter the conditions of probation (with regard to part "d") to require Respondent to take all necessary measures to control his depression and his vitamin deficiency illness, but not to require Respondent to seek the counsel of his minister unless he so desires.

¶ 6 Normally, the serious nature of each of these complaints and the volume of client neglect would warrant some period of suspension. However, Respondent presented compelling evidence in mitigation of a more stringent punishment. Both he and his doctor offered evidence describing an undiagnosed physical illness, exacerbated by classical symptoms of depression. The testimony clearly persuaded the Tribunal that Respondent's failure to properly tend to these five clients and timely respond to the bar inquiries was primarily the result of his medical condition, rather than willful or conscience neglect. As an additional mitigating factor, in his seventeen years of practice Respondent has received no previous discipline.

¶ 7 While this Court agrees with the Tribunal that Respondent presented compelling mitigation evidence, we recede from the Tribunal's recommendation in one significant respect. The testimony at the hearing indicated Respondent knew he was in deteriorating health and his condition impaired his ability to represent his clients in a competent manner. Although Respondent took steps to compensate for his loss of short term memory, he soon became aware through a rash of client complaints that the measures were not adequate. At that point, he should have terminated his services as the clients requested or sought outside assistance. Having failed to protect his clients when he understood that he was no longer able to adequately represent them, this Court imposes a public censure.

I. Green Complaint

¶ 8 Respondent and the Oklahoma Bar Association entered into agreed stipulations and findings of fact with regard to the five client complaints. The first complaint was brought by James Green (Green), who retained Respondent to assist him in his slander suit against Norman Motors. Green employed Respondent in November 1995 and experienced difficulty communicating with Respondent throughout the entire course of the representation.

¶ 9 The communication problem between Green and Respondent reached its worst point between August of 1997 through the filing of this complaint in October of 1998. Green apparently believed that his lawsuit had not yet been filed (Respondent filed the suit in July 1997, but failed to communicate the fact to his client). During this period, Green continually contacted Respondent expressing concern relating to the running of the statute of limitations. In a three month period between December 1997 and February 1998, Green wrote Respondent on three separate occasions requesting that Respondent mail him a copy of the filed lawsuit. According to Green, Respondent failed to respond to any of these inquiries.

¶ 10 Green tried unsuccessfully to reach Respondent on many occasions in the subsequent months. In August 1998, Green once again wrote Respondent and advised Respondent that after sending over fifty faxes and phone calls to which he received no response, he intended to contact the Oklahoma Bar Association and file a grievance against Respondent.

¶ 11 Upon receiving Green's complaint in October 1998, the bar contacted Respondent by letter asking him to communicate with Green and to report back to the bar. Respondent testified that he spoke with Green but failed to contact him in writing as requested by the bar. Green denied Respondent communicated with him in any manner. Respondent acknowledged that he did not report back to the bar.

¶ 12 In December 1998 the bar sent Respondent a letter advising that Green's grievance had been opened for formal investigation and he was required to respond within 20 days. Respondent did not respond as required. The bar then sent Respondent a followup letter in January 1999, which was returned undelivered. In February 1999, the bar association's investigator spoke with Respondent and hand delivered the Green complaint to Respondent with directions to respond to Green and the bar by March 16th. Again, no response was forthcoming. Respondent finally contacted the bar on March 18th, asking for an extension due to his mother's illness and then failed to comply with the extension granted. The bar association then issued a Subpoena Duces Tecum in April 1999.

¶ 13 When Respondent produced a response in conjunction with his April deposition, he attempted to justify his inaction by denigrating the strength of Green's case. He also argued that although Green's action had been dismissed, Green suffered no prejudice because it was dismissed without prejudice and Green was still able to refile.

¶ 14 During the deposition (April 1999), Respondent agreed to furnish the bar with the contingency fee contract or agreement with Green. The bar also reminded Respondent of the responses due in the Davis, Gee, and Henderson grievances. Respondent assured the bar he had already prepared those responses and would send them the following day. Respondent failed to provide either the contingency fee agreement or the responses to any of the other complaints.

¶ 15 At his hearing before the Tribunal a year later, Respondent explained that he suffered short term memory loss so severe during his vitamin deficiency illness that he must not have remembered his promises to the investigators and bar counsel or the directives of the bar association. Counsel for the bar acknowledged that after Respondent began seeking medical treatment for the B-12 deficiency and hired counsel to represent him in the bar matters, he followed through on each of the bar association's requests for information and responses in a prompt fashion.

¶ 16 Both parties stipulated that Respondent's neglect of Green's case and his failure to respond to the bar concerning the Green grievance violated the following provisions of the Rules of Professional Conduct (RPC), 5 O.S.1991 Ch. 1, App. 3-A, and Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 1991 Ch. 1, App. 1 A: Rules 1.3 (diligence), 1.4 (communication with client), 8.1(b) (failure to respond to lawful demand for information from bar association), 8.4(a) (violate or attempt to violate RPC), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) of the RPC and Rules 1.3 (acts contrary to prescribed standards of conduct), 5.2 (compliance with bar investigations) of the RGDP.

II. The Davis Complaint

¶ 17 Ms. Jadie Davis (Davis) retained Respondent in 1994 to handle her wrongful termination and breach of contract claim against her former employer. Davis experienced great difficulty reaching Respondent during the next two years. Although Respondent did file a Petition on Davis' behalf in 1996, Davis subsequently became dissatisfied with Respondent's lack of communication and failure to...