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

• Decision Date: 09 February 2016
• Docket Number: SCBD No. 6302.
• Citation: 367 P.3d 509
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Ronald R. BOONE, Respondent.
• Court: Oklahoma Supreme Court

367 P.3d 509

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

v.Ronald R. BOONE, Respondent.

SCBD No. 6302.

Supreme Court of Oklahoma.

Feb. 9, 2016.

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Ronald R. Boone, Norman, Oklahoma, Pro Se.

COMBS, V.C.J.

¶ 1 This matter comes before the Court pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1–A. On August 28, 2015, Complainant Oklahoma Bar Association (OBA/Complainant) filed its Complaint against Respondent Ronald R. Boone (Respondent), OBA No. 14080, alleging two counts of misconduct in violation of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, Ch. 1, App. 3–A, and the RGDP, 5 O.S. 2011, Ch. 1, App. 1–A. Respondent stipulated to Complainant's allegations of misconduct. A panel of the Professional Responsibility Tribunal (PRT) conducted a hearing on October 21, 2015. The Report of the Trial Panel, filed on November 18, 2015, expressed the PRT's determination that clear and convincing evidence supported Complainant's allegations that Respondent violated mandatory provisions of the ORPC and RGDP and that discipline should be imposed.

I.STANDARD OF REVIEW

¶ 2 This Court's review in bar disciplinary proceedings is de novo. State ex rel. Okla. Bar Ass'n v. Conrady, 2012 OK 29, 6, 275 P.3d 133 ; State ex rel. Okla. Bar Ass'n v. Wilcox, 2009 OK 81, 2, 227 P.3d 642 ; State ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, 2, 71 P.3d 18. Deciding whether misconduct has occurred and what discipline is warranted if misconduct is found is the ultimate responsibility of this Court in the exercise of our exclusive original jurisdiction in bar disciplinary matters. Conrady, 2012 OK 29, 6, 275 P.3d 133 ; Taylor, 2003 OK 56, 2, 71 P.3d 18 ; State ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, 2, 833 P.2d 260.

¶ 3 In fulfilling our responsibility, the factual and legal determinations of the PRT are not binding on this Court, and its recommendations are merely advisory.¹ Conrady, 2012 OK 29, 6, 275 P.3d 133 ; Taylor, 2003 OK 56, 2, 71 P.3d 18 ; Todd, 1992 OK 81, 2, 833 P.2d 260. Even when the parties stipulate to misconduct, the stipulations do not bind us for our duty is to review the evidence de novo to decide if misconduct allegations are established by clear and convincing evidence. Conrady, 2012 OK 29, 6, 275 P.3d 133 ; State ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, 12, 212 P.3d 1186 ; Taylor, 2003 OK 56, 2, 71 P.3d 18. Upon a thorough review of the record, we conclude it is sufficient for this Court's de novo inquiry and imposition of discipline.

II.FACTS

A. Count I—The Posey Grievance

¶ 4 Complainant asserts Respondent violated Rules 1.1,² 1.3,³ 3.2,⁴ and 8.4(a) and (d),⁵ ORPC, 5 O.S. 2011, Ch. 1, App. 3–A, and Rule 1.3,⁶ RGDP, 5 O.S. 2011, Ch. 1, App. 1–A, in the course of representing a client, Harold R. Posey, III (Posey). On April 30, 2012, Posey was involved in an automobile collision in McClain County, Oklahoma. Posey's vehicle was struck by a motor vehicle owned by Ericka Smith, but being driven by Alan Dewitt Chappell, a suspected drunk driver who fled the scene of the accident. Posey suffered personal injuries and sustained property damage to his vehicle. After the collision, Posey was transported by ambulance to Norman Regional Health System for treatment. The record indicates the cost of Posey's treatment was $8,856. Exs. 3, 4, & 16.

¶ 5 On or about May 3, 2012, Posey hired Respondent to represent him for the purpose of recovering property damages and compensation for medical expenses resulting from the collision. By May 23, 2012, Respondent had negotiated property damages for Posey. However, after this it became increasingly difficult for Posey to communicate with Respondent. Posey testified at the hearing before the PRT that communication was sporadic in the first six months after the property damage settlement, and then became almost non-existent. Tr. 26–28. After Posey instructed Respondent to reject the initial settlement offer for medical expenses, Posey became essentially unable to contact Respondent and Respondent failed to provide Posey with any updates regarding his case. Tr. 27. In order to explain his lack of communication, Respondent asked questions of Posey at the hearing illustrating that Posey and Respondent agreed to wait and file suit near the end of the allowable time period in order to see if there was any further deterioration in Posey's condition before the suit was filed, and that Respondent asked Posey to let him know if his condition changed. Tr. 35–36. This was also Respondent's recollection of his plan concerning Posey's case. Tr. 93

¶ 6 Respondent testified that he became aware, three to four months before the statute of limitations cutoff that a settlement would not be possible and he would need to file a lawsuit. Tr. 128–29. On May 1, 2014, Respondent filed a civil suit on behalf of Posey seeking in excess of $10,000, styled Harold Ray Posey, III v. Alan Dewitt Chappell and Ericka Kathleen Smith, McClain County District Court, Case No. CJ–2014–72. Ex. 6. Respondent filed this suit one day after the two-year statute of limitations had run on April 30, 2014. The defendants to the suit filed special appearances and motions to dismiss, citing the failure to file the matter within the time prescribed by the statute of limitations. The court held hearings at which Respondent did not appear, and dismissed Posey's petition. Ex. 6.

¶ 7 After experiencing rising frustration and lack of communication, Posey terminated Respondent's services in late 2014 and requested a copy of his file. Posey testified that it took him some time to obtain a copy of his file from Respondent, but he was finally able to do so sometime in December, 2014 or January, 2015. Tr. 28–29. After obtaining his file, Posey called the insurance company to check on the status of his medical claim and learned, for the first time, that a lawsuit had been filed and subsequently dismissed because of Respondent's failure to file within the statute of limitations. Tr. 29. The following exchange occurred while Posey was being questioned by the PRT:

Q: And do I understand your testimony correctly, Mr. Posey, that you did not understand that, number one, a lawsuit had been filed, and number two, a lawsuit had been dismissed, until you talked to the insurance company?

A: That is correct.

Tr. 60.

¶ 8 Respondent, over the course of his representation of Posey: 1) failed to communicate with Posey despite Posey's repeated attempts to contact Respondent; 2) failed to keep Posey updated concerning the status of his case; 3) failed to file Posey's lawsuit until after the statute of limitations had run; and 4) failed to timely provide Posey's file after Posey had terminated his services and requested it be returned to him. Clear and convincing evidence exists in the record before this Court that Respondent violated Rules 1.1, 1.3, 3.2, and 8.4(a) and (d), ORPC, 5 O.S. 2011, Ch. 1, App. 3–A, and Rule 1.3, RGDP, 5 O.S. 2011, Ch. 1, App. 1–A, over the course of his representation of Posey.

B. Count II—Failure to Timely Respond to the Office of the General Counsel

¶ 9 Complainant asserts Respondent violated Rule 8.1(b),⁷ ORPC, 5 O.S. 2011, Ch. 1, App. 3–A, and Rules 1.3⁸ and 5.2,⁹ RGDP, 5 O.S. 2011, Ch. 1, App. 1–A, by failing to timely respond to the OBA Office of the General Counsel. On April 16, 2015, the OBA received a written grievance from Posey detailing Respondent's neglect in the personal injury case. Ex. 7. In a letter dated April 27, 2015, and mailed to Respondent's official roster address via regular mail, Complainant notified Respondent it was opening Posey's grievance for formal investigation and he was required to respond within twenty (20) days pursuant to Rule 5.2, RGDP, 5 O.S., Ch. 1, App. 1–A. Ex. 8.

¶ 10 While Respondent admits in his Answer that he did not respond to this letter within twenty (20) days as required by the rule, he testified at the hearing before the PRT that this was because he never saw the letter, stating: "I did not see the letter.

I could not find the letter in—in the office. I could not find it. It wasn't in the file." Tr. 103. Respondent's Answer reflects this, as receipt of this letter is one of the few things he does not admit to. During the hearing before the PRT, Complainant's attorney testified that the April 27, 2015, letter to Respondent was sent regular mail, with no return receipt requested. Tr. 125. She testified it was the bar's position that he received this letter and failed to respond, his claims to the contrary notwithstanding. Tr. 125–126.

¶ 11 Having not received a response from Respondent, on May 21, 2015, Complainant sent a second letter via certified mail to Respondent's roster address. Ex. 9. This letter requested a written response from Respondent within five (5) days. On May 26, 2015, Complainant received the return receipt from the United States Postal Service indicating that the May 21, 2015, letter sent via certified mail was received and signed for at Respondent's official roster address by Sherry Rodman on or about May 22, 2015.

¶ 12 Respondent did respond to this second mailing from Complainant. In a letter dated May 27, 2015, and received by Complainant on June 1, 2015, Respondent admitted to filing Posey's lawsuit outside of the statute of limitations. By way of explanation, Respondent stated:

[i]n preparing this response I realized that my note on the statute of limitations was incorrect. I had noted that May 1 was the last date that the case could be filed rather than April 30th and had docketed it that way. Since 2012, with the assistance of Mr. Callaway, I have changed procedures and checklist to insure issues like this do not occur in the future.

Letter from Respondent, May 27, 2015, Ex. 11.

¶ 13 This Court is troubled by Complainant's mechanical application of the rules in...