State ex rel. Okla. Bar Ass'n v. Nichols

• Decision Date: 25 May 2021
• Docket Number: SCBD No. 6888
• Citation: 488 P.3d 734
• Court: Oklahoma Supreme Court
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Brandon S. NICHOLS, Respondent.

488 P.3d 734

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Brandon S. NICHOLS, Respondent.

SCBD No. 6888

Supreme Court of Oklahoma.

FILED MAY 25, 2021

Stephen L. Sullins, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

KANE, V.C.J.:

¶1 Complainant State of Oklahoma ex rel. Oklahoma Bar Association (OBA) began disciplinary proceedings pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch.1, app. 1-A, alleging two counts of professional misconduct against the Respondent Brandon S. Nichols. Respondent is a suspended member of the Oklahoma Bar Association per this Court's Order of June 10, 2019, for his failure to comply with his mandatory continuing legal education (MCLE) requirements for the calendar year 2018. The Complainant's allegations arise from Respondent's actions during this one year suspension in violation of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2011, ch. 1, app. 3-A, and the RGDP, and are cause for professional discipline.

I. FACTS AND PROCEDURAL HISTORY

¶2 Respondent was licensed to practice law in the State of Oklahoma on April 20, 2001. Respondent was suspended from the practice of law by Order of this Court on June 10, 2019, for failure to comply with his MCLE requirements for the calendar year 2018.¹

¶3 Respondent was advised of his one year suspension by letter from the Executive Director of the OBA enclosing this Court's Suspension Order. Thereafter, per Order of this Court on September 14, 2020, Respondent's name was stricken from the Roll of Attorneys for the State of Oklahoma, as well as the Membership Roll of the OBA.² Respondent remains suspended.

¶4 On January 6, 2020, the OBA filed a formal Complaint against Respondent alleging two counts of professional misconduct.³ The Complaint alleges Respondent failed to comply with his mandatory duties under Rules 1.16(a) (lawyer shall withdraw from representation),⁴ 5.5 (unauthorized practice of law),⁵ and 8.4(a) (misrepresentation),⁶ ORPC, and Rules 1.3 (discredit of profession)⁷ and 9.1 (notice to clients of suspension),⁸ RGDP. Complainant alleges Respondent continued to practice law during his one year suspension which constitutes the unauthorized practice of law pursuant to Rule 5.5, ORPC. Complainant alleges Respondent failed to notify his clients of his one year suspension and failed to withdraw from those cases as required under Rule 9.1, RGDP.

¶5 Respondent failed to file a formal responsive pleading to the Complaint as required by Rule 6.4 (Response to Complaint)⁹ , RGDP. As a result, on March 3, 2020, Complainant filed a Motion to Deem Allegations Admitted.¹⁰

¶6 On March 4, 2020, a three person panel of the Professional Responsibility Tribunal (PRT) conducted an evidentiary hearing. Respondent did not appear. On June 12, 2020, the PRT submitted a written report detailing the pertinent facts, applicable law, and rule violations. The PRT found by clear and convincing evidence Respondent violated Rules 1.16(a), 5.5, and 8.4(a), ORPC, and Rules 1.3 and 9.1, RGDP, that discipline was warranted, and recommended the imposition of a one year suspension from the last date of Respondent's unauthorized practice of law, which was on or about November 27, 2019.

II. STANDARD OF REVIEW

¶7 In bar disciplinary proceedings, this Court possesses exclusive original jurisdiction. See State ex rel. Okla. Bar Ass'n v. Holden , 1995 OK 25, ¶ 10, 895 P.2d 707, 711. Our review of the evidence is de novo in determining if the Complainant proved its allegations of misconduct by clear and convincing evidence. Id. ; State ex rel. Okla. Bar Ass'n v. Bolusky , 2001 OK 26, ¶ 7, 23 P.3d 268, 272. Clear and convincing evidence is that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. See State ex rel. Okla. Bar Ass'n v. Green, 1997 OK 39, ¶ 5, 936 P.2d 947, 949.

¶8 Whether to impose discipline is a decision that rests solely with this Court, and the recommendations of the PRT are neither binding nor persuasive. See State ex rel. Okla. Bar Ass'n v. Eakin , 1995 OK 106, ¶ 8, 914 P.2d 644, 648. To make this assessment, we must receive a record that permits "an independent on-the-record determination of the critical facts" and impose appropriate discipline. State ex rel. Okla. Bar Ass'n v. Schraeder , 2002 OK 51, ¶ 6, 51 P.3d 570, 574.

¶9 The Complainant submitted the record in this case which consisted of: (1) the pleadings filed with the Supreme Court; (2) the transcript of Respondent's hearing before the PRT on March 4, 2020; (3) Complainant's Exhibits 1-11; (4) Complainant's Application to Assess Costs in the amount of $397.05, filed on June 12, 2020; and (5) the Trial Panel Report filed on June 12, 2020. We agree that the record before us is complete.

III. THE GRIEVANCES

A. Count I — Respondent's One Year Suspension and Failure to Comply with Rule 9.1, RGDP

¶10 Respondent was suspended from the practice of law on June 10, 2019, for failure to comply with his MCLE requirements for calendar year 2018. The OBA mailed Respondent's suspension letter to his official roster address. The suspension letter not only advised Respondent of his suspension and his mandatory obligations under Rule 9.1, RGDP, but it also emphasized that he must inform his clients of his suspension "within TWENTY (20) DAYS FROM the date of the enclosed Order ." The OBA suspension letter also advised Respondent about the procedure for seeking reinstatement.

¶11 Pursuant to Rule 9.1, RGDP, Respondent was required to notify by certified mail all of his clients with pending legal business of his inability to represent them and their need for new counsel by certified mail, file a formal withdrawal as counsel of record in all pending cases before any tribunal, and file an affidavit with the PRT and the Clerk of the Supreme Court stating that he complied with Rule 9.1, RGDP. Respondent was required to do all of these things within twenty days of receiving his letter of suspension, yet he did not. See Rule 9.1, RGDP.

¶12 The June 10, 2019 letter from the OBA to Respondent, enclosing this Court's Suspension Order of the same date, also emphasized that Respondent's "[f]ailure to cease and desist with the practice of law in the State of Oklahoma" and/or his "continued practice of law" would be "an unauthorized act which may subject [him] to adverse legal consequences and may jeopardize any future privileges of practicing law in this State."

¶13 Despite these warnings, Respondent failed to formally respond to the Complaint. As a result, the allegations of the Complaint were deemed admitted. See Rule 6.4, RGDP. Respondent also failed to attend his own disciplinary hearing before the PRT. Respondent's name was stricken from the Roll of Attorneys for the State of Oklahoma, as well as the Membership Roll of the OBA, on September 14, 2020.

B. Count II — The Davidson Grievance

¶14 On October 28, 2019, the Office of the General Counsel received a grievance from Priscilla Davidson dated October 8, 2019 (Davidson Grievance), alleging Respondent was practicing law without a license. Davidson alleged she received a letter from Respondent dated September 30, 2019, in which Respondent identified himself as being a lawyer. Davidson stated that she searched Respondent's name on the OBA website and found information which led her to believe Respondent's law license had been suspended.

¶15 On November 5, 2019, the OBA mailed a letter to Respondent's official roster address, enclosing a copy of the Davidson Grievance and advised him he was required to respond within twenty days pursuant to Rule 5.2, RGDP.¹¹ On November 27, 2019, Respondent provided his written response to the Davidson Grievance wherein he admitted he failed to meet his MCLE requirements for calendar year 2018. Respondent stated he did not receive the letter from the OBA advising him of his suspension, but he did not deny that the letter was sent to him. Respondent also claimed he first learned of his suspension when Davidson called and told him he had been suspended. Upon receiving such information, Respondent stated he filed motions to withdraw in all of his pending cases, advised all of his clients of his suspension from the practice of law, and had not practiced law since. Respondent also stated he had completed all of his MCLE requirements for calendar year 2019, but that he still lacked four hours of MCLE for calendar year 2018.

C. Respondent's Failure to Fully Cooperate with the OBA's Investigation and His Failure to Attend His Own Disciplinary Hearing before the PRT

¶16 Respondent made assurances to the OBA upon receipt of the Davidson Grievance that he wanted to resolve his compliance issues. For example, Respondent met with OBA investigator Jamie Lane on November 6, 2019, concerning the Davidson Grievance and pledged to cooperate with the investigation. However, after Respondent submitted his written response to the Davidson Grievance, Respondent failed to respond to multiple emails and/or return phone calls from the OBA concerning additional questions the OBA had about the Davidson Grievance. Thereafter, on March 4, 2020, Respondent continued his lack of responsiveness and failed to appear for his own disciplinary hearing before the PRT.¹²

IV. THE RULE VIOLATIONS

¶17 The PRT filed its Report on June 12, 2020. The PRT found by clear and convincing evidence that Respondent violated Rules 1.16(a), 5.5, and 8.4(a), ORPC, and Rules 1.3 and 9.1, RGDP, that discipline was warranted, and recommended the imposition of a one year suspension from the last date of Respondent's unauthorized practice of law, which they calculated was on or about November 27, 2019, and that he be ordered to pay the costs of these proceedings.

¶18 We find by clear and convincing evidence that Respondent violated Rule 5.5, ORPC, by participating in the unauthorized practice...