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

• Decision Date: 12 October 2010
• Docket Number: SCBD No. 5579.
• Citation: 242 P.3d 517,2010 OK 72
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Merl Alan WHITEBOOK, Respondent.
• Court: Oklahoma Supreme Court

242 P.3d 517

2010 OK 72

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Merl Alan WHITEBOOK, Respondent.

SCBD No. 5579.

Supreme Court of Oklahoma.

Oct. 12, 2010.

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

¶ 0 The Oklahoma Bar Association filed a complaint against the respondent alleging violations of rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16, 8.1(b), and 8.4(a), (c), and (d) of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A, and rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A. The respondent did not file a response to the complaint. Pursuant to rule 6.4 of the Rules Governing Disciplinary Proceedings, the Professional Responsibility Tribunal deemed the allegations in the complaint to be admitted by the respondent and recommended that he be suspended from the practice of law for two years and one day and ordered to pay the costs of the proceedings.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; ORDERED TO PAY COSTS.

Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

TAYLOR, V.C.J.

¶ 1 The Oklahoma Bar Association (OBA), filed a complaint against attorney Merl Alan Whitebook (Whitebook). The OBA alleges in four counts that Whitebook violated the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A (ORPC), and the Oklahoma Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A (RGDP). Whitebook did not file an answer to the complaint as required by rule 6.4 of the RGDP.

¶ 2 On October 20, 2009, the Professional Responsibility Tribunal (PRT), conducted a hearing. Whitebook failed to appear. The PRT found that Whitebook had received notice of the charges against him, and that the charges were deemed admitted based on Whitebook's failure to respond to the complaint. The PRT recommended that Whitebook be suspended from the practice of law for two years and one day and ordered to pay the costs of the disciplinary proceeding.

I. STANDARD OF REVIEW

¶ 3 In bar disciplinary proceedings, this Court exercises its constitutional, nondelegable power to regulate the practice of law and legal practitioners. State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344. This Court decides whether misconduct has occurred and, if so, the appropriate discipline to be imposed. State ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 261. The burden of proof is by clear-and-convincing evidence. State ex rel. Okla. Bar Ass'n v. Rogers, 2006 OK 54, ¶ 9, 142 P.3d 428, 432. In our de novo review, this Court is not bound by the PRT's findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline. Todd, 1992 OK 81 at ¶ 2, 833 P.2d at 261.

II. COUNT I

¶ 4 The OBA alleges the following facts in count one of the complaint. About June 29, 2007, a client retained Whitebook to handle the probate of an estate and paid Whitebook $1,000.00 as a retainer fee. Whitebook initially performed some work on the case but ceased further work some time in October of 2007. ¹ The client attempted to contact Whitebook multiple times. On one or two occasions when the client communicated with Whitebook he vaguely promised to complete the probate.

¶ 5 The client was forced to retain substitute counsel, and the probate was completed about November 5, 2008, at considerable additional expense and hardship on the family. Whitebook has not refunded the unearned portion of the retainer.

III. COUNT II

¶ 6 The OBA alleges the following in count two of the complaint. About July 9, 2008, a client hired Whitebook to handle a probate of an estate and paid Whitebook an $800.00 retainer fee. As of November 9, 2009, Whitebook had failed to take any action on the probate. The client made multiple attempts at communicating with Whitebook which were unsuccessful. Some time after April 8, 2009, the client communicated with Whitebook. Whitebook indicated he was not feeling well but would get to the probate as soon as possible. Whitebook still failed to perform any services for the client. The client requested that Whitebook refund the retainer fee, but Whitebook has failed to do so.

IV. COUNTS III AND IV

¶ 7 In count three, the OBA alleges the following facts. On July 17, 2008, the OBA received the grievance from the client in count one. On July 21, 2008, the OBA sent Whitebook a letter advising him of the grievance and requesting that he respond to the allegations within twenty days. Having failed to receive a response from Whitebook, the OBA sent Whitebook a letter by certified mail on August 18, 2008, asking Whitebook to respond within five days. Whitebook signed for the certified letter on August 19, 2008, but did not respond. The Professional Responsibility Commission issued a subpoena duces tecum for appearance at an investigative deposition. Whitebook appeared at the hearing held on October 2, 2008, but failed to give an adequate reason for his failure to respond to the OBA's investigation.²

¶ 8 In count four, the OBA alleged the following facts. On January 12, 2009, the client in count two filed a grievance with the Tulsa County Bar Association (TCBA). Because Whitebook did not respond to the TCBA's request for information, the grievance was forwarded to the OBA which opened a formal investigation in April of 2009.

¶ 9 On May 1, 2009, the OBA mailed Whitebook a letter asking him to respond to the grievance within twenty days. When Whitebook failed to respond, the OBA sent Whitebook a certified letter on May 22, 2009. Whitebook did not sign for the certified letter and, on July 6, 2009, was personally served with a subpoena to appear for an investigative deposition on July 9, 2009. Whitebook did not appear at the deposition. On July 9, 2009, Whitebook called the OBA and left a message that he was in Denver, Colorado, and had received the subpoena on July 8. The OBA's investigator tried unsuccessfully to return the call. Contradicting Whitebook's statement that he was served on July 8, the process server's affidavit shows that Whitebook was personally served at 9:25 p.m. on July 6, 2009, in Bartlesville, Oklahoma. On July 20, 2009, the OBA's investigator sent Whitebook an email informing him that he was "still obligated under our subpoena" and that he needed to contact her as soon as possible.

V. ADDITIONAL FACTS

¶ 10 The OBA filed the complaint in this proceeding and a copy was mailed to Whitebook by certified mail, return receipt requested and restricted delivery, to his official OBA roster address on September 4, 2009. The return receipt shows that Whitebook signed for the complaint at 4:36 p.m. on September 10, 2009. Whitebook did not file a response to the complaint. The certificate of mailing shows, on September 10, 2009, the OBA sent Whitebook a copy of the notice that the hearing before the PRT was set for 9:30 a.m. on October 20, 2009, at the OBA conference room in Oklahoma City, Oklahoma. Whitebook did not appear at the hearing held on the set date. On November 9, 2009, the OBA filed a motion to deem the allegations in the complaint to be admitted. Even though a copy was mailed to Whitebook, he did not respond to the motion.

¶ 11 On October 20, 2009, the PRT held a hearing and took evidence. Whitebook did not appear. Even though the motion to deem the allegations in the complaint to be admitted had yet to be filed in the Supreme Court clerk's office, the PRT had the motion before it at the hearing and considered the motion. At the hearing, the PRT accepted documents into evidence and heard the testimony of the OBA's investigator. The investigator's testimony concerned only counts three and four.

¶ 12 The PRT filed its report on November 13, 2009, in which it accepted the motion to deem the allegations admitted. It also found that Whitebook had properly been served with notice but had wholly failed to respond. Lastly, the PRT recommended that Whitebook be suspended from the practice of for two years and one day and ordered to pay the costs of the proceeding.

¶ 13 On November 13, 2009, the OBA filed its application to assess costs against Whitebook in the amount of $1,226.51. On November 20, 2009, this Court filed a briefing schedule with the OBA's brief being due on December 4, 2009, Whitebook's brief due within fifteen days thereafter, and the OBA's reply brief due ten days after Whitebook's was filed.

¶ 14 The OBA filed its brief on December 4, 2009, Whitebook did not file a brief, and the OBA waived filing a reply brief. In its brief, the OBA asserts that there is sufficient evidence for this Court's de novo review, that Whitebook had sufficient notice to satisfy due process requirements, that the PRT properly sustained the OBA's motion to deem the allegations admitted, and that the OBA proved Whitebook's misconduct by clear and convincing evidence and supported its recommendation of suspension of two years and a day with authority and argument.

VI. ANALYSIS

¶ 15 When a lawyer fails to file an answer to the complaint, as Whitebook has failed to do, the factual charges in the complaint aredeemed admitted. RGDP rule 6.4 ("In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed."). Rule 6.4 allows the OBA to meet its burden of proof without unnecessarily increasing the cost of the proceedings.

¶ 16 As to counts one and two, the OBA alleges Whitebook has violated rules 1.1,³ 1.3,⁴ and 1.4,⁵ 1.5,⁶ 1.15, ⁷ 1.16,⁸ and 8.4(a), (c), and (d) of the ORPC and rule 1.3 of the RGDP.⁹ As to counts three and four, the OBA alleges Whitebook has violated rules 8.1(b) ¹⁰ and 8.4(a) and (c) of the ORPC and rules 1.3 and 5.2 ¹¹ of the RGDP.

¶ 17 The facts alleged in counts one and two of the complaint which are deemed admitted under rule 6.4 support the following findings: (1)...