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

• Decision Date: 18 June 2019
• Docket Number: SCBD No. 6480
• Parties: STATE of Oklahoma, EX REL. OKLAHOMA BAR ASSOCIATION, Complainant v. Shad K. WITHERS, Respondent.
• Court: Oklahoma Supreme Court

445 P.3d 229

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

v.Shad K. WITHERS, Respondent.

SCBD No. 6480

Supreme Court of Oklahoma.

FILED JUNE 18, 2019

Tommy Humphries, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant

Shad Withers, Attorney, Wichita, Kansas, for Respondent, pro se

COLBERT, J.

¶1 This disciplinary proceeding against a lawyer poses two questions: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and its disposition?¹ and (2) Is suspension for ninety days together with payment of costs an appropriate disciplinary sanction for Respondent's breach of acceptable professional behavior? We answer both questions in the affirmative.

¶2 Following a grievance filed by client Jackie Miller (Ms. Miller) on January 26, 2016, the Oklahoma Bar Association (Complainant) commenced an investigation against Shad K. Withers, a licensed lawyer (Respondent). On December 16, 2016, the OBA filed a formal complaint under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1-A.² The Complainant charged Respondent with one count of professional misconduct in violation of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2001, Ch. 1, App. 3-A,³ and are cause for professional discipline under the RGDP. The Complainant recommended suspension from the practice of law for a period of one year. Respondent answered the Complaint on January 3, 2017.

¶3 A trial panel of the Professional Responsibility Tribunal (PRT) conducted a PRT Hearing on February 2, 2017. Upon conclusion of the hearing, consideration of testimony (Respondent was the sole witness) and admitted exhibits, the PRT issued its Report (PRT Report) on April 24, 2017. The PRT Report found generally that Respondent had violated the ORPC Rules 1.15,⁴ 8.4(a), and 8.4(c),⁵ but did not find clear and convincing evidence to support the other allegations of misconduct against Respondent asserted by the Complainant, namely violations of ORPC Rules 1.1,⁶ 1.3,⁷ 1.4,⁸ and 1.5.⁹ The PRT recommended suspension of Respondent's license to practice law for one hundred twenty days and assessed to Respondent the payment of costs incurred in this proceeding. The Complainant filed a one-count complaint to our Court in Complainant's Brief-In-Chief on May 16, 2017. Withers responded with Respondent's Brief-In-Chief on May 30, 2017.

STANDARD OF REVIEW

¶4 The Oklahoma Supreme Court has exclusive original jurisdiction regarding OBA proceedings. In re Integration of State Bar of Okla., 1939 OK 378, ¶ 5, 185 Okla. 505, 95 P.2d 113, 114. The Court's review is de novo and takes into consideration all relevant facts in determining whether discipline is merited and what measures, if any, should be imposed for the misconduct. State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 546. The Court implements its constitutionally invested, nondelegable power to regulate and control the practice of law and the legal practitioners. Tweedy v. Okla. Bar Ass'n, 1981 OK 12, ¶ 2, 624 P.2d 1049, 1052. Under a de novo examination, the Trial Panel's findings and its recommendations are not binding nor are they persuasive upon this Court. State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265. This Court has a duty to be the final arbiter for adjudication and must conduct a full-scale examination of all the relevant facts. State ex rel. Okla. Bar Ass'n v. Johnston, 1993 OK 91, ¶ 13, 863 P.2d 1136, 1142 ("In a de novo consideration, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, a full-scale exploration of all relevant facts is mandatory. The Court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all material issues.").

¶5 Before a decision to discipline an offending attorney, the misconduct presented must be demonstrated by clear and convincing evidence, as required by Rule 6.12 of the RGDP, 5 O.S. 2001, Ch.1, App. 1-A. To make this determination of evidence and to fully discharge the court of its duty, the Trial Panel must present a complete record of the proceedings. State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶ 9, 914 P.2d 644, 648. The Court must determine whether the presented record is sufficient for an independent determination of the relevant facts and to craft an appropriate discipline. State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630. The record in this case consists of the pleadings filed with this Court, the exhibits admitted into the record at the PRT Hearing, the Report of the Trial Panel filed on April 24, 2017, and the transcript of the district court hearing held on February 2, 2017. After examination of the record on appeal, this Court determines that the record submitted is sufficient for the Court's de novo consideration of Respondent's alleged misconduct.

FACTUAL BACKGROUND

¶6 The chronology of this case is detailed and complex so it is necessary to provide a thorough summary of the facts. This case arises from Respondent's representation of a client who went to an emergency room for treatment of heart-related symptoms. The treatment given was alleged to have triggered a cardiac arrest

which necessitated a readmission to the medical facility. Thereby this medical negligence action was filed in response to that incident.

¶7 Jackie Miller (Ms. Miller) sought medical assistance when she went to the emergency room of the Oklahoma University Medical Center (OUMC) on December 31, 2007. Experiencing pain and tenderness over her pacemaker, Ms. Miller was prescribed the medication Zofram, which allegedly caused cardiorespiratory arrest

and readmission to the hospital with severe injuries as a result.

¶8 On September 30, 2009, Ms. Miller hired attorney David Van Meter to pursue a medical negligence action against the hospital and doctors involved in her case. Defendants included OUMC, Healthcare Services, Inc., Tarek Dernaika, M.D., Moeen Abedin, M.D., Regi Matthew Pappy, M.D., Bradley J. Johnson, M.D., and S. Brent Barnes, M.D. The claim which was filed by Mr. Van Meter on Ms. Miller's behalf asserted an attorney's lien in favor of Mr. Van Meter. On February 25, 2013, after Mr. Van Meter had spent a period of years on the case, Ms. Miller terminated the client relationship with Mr. Van Meter after she failed to accept his advice that she accept a settlement offer for a total of $25,000, as to all defendants in total. Mr. Van Meter indicated that if Ms. Miller did not accept the settlement offer, he would no longer represent her in the matter and thereafter, counsel withdrew from the case. Ms. Miller, of her own initiative on May 6, 2013, dismissed the action without prejudice.

¶9 On January 21, 2014, Ms. Miller retained Respondent to represent her in the previously filed medical malpractice case. Respondent at the time was employed by the law firm of Brown and Gould. Initially, Respondent and Mr. Van Meter had some preliminary email discussions regarding the attorney's lien Mr. Van Meter possessed on Ms. Miller's case. Mr. Van Meter stated that he was entitled to 50% of any proceeds for the case or a flat amount of $25,000 plus his expenses. Respondent and his firm's partner (Tony Gould) refiled the action for Ms. Miller on May 6, 2014, with all the initially named defendants but also adding a new defendant, Dr. Brian Plaxico, D.O.

¶10 Subsequent to the refiling of the medical malpractice action, Respondent left Brown and Gould in August of 2014, and by an agreement on August 13, 2014, Mr. Gould withdrew from the case and Respondent continued representation of Ms. Miller as a sole practitioner. This was Respondent's first experience as a sole practitioner. Mr. Gould made no attorney lien claim, offering instead that he would be satisfied with recoupment of costs incurred - approximately $705.64 - if the case resulted in recovery.

¶11 Respondent then pursued a conclusion to the medical malpractice case for Ms. Miller. On April 28, 2015, he was able to reach a settlement agreement with OUMC for $75,000, and with the doctors, Pappy, Abedin, Dernaika, and Johnson (Pappy, et al.), for $7,000 "in verified litigation expenses." The agreements were initially handwritten and both agreements were executed by Ms. Miller personally. Doctors Barnes and Plaxico did not participate in the initial settlement agreement and the claims against them remained unresolved.

¶12 On May 3, 2015, Respondent and Ms. Miller executed a second attorney-client contractual agreement whereby the attorney fees due to Respondent was amended to 40% rather than 50% in the original agreement. The new amended section in the second contractual agreement stated that the Respondent would receive no more than 40% of the client's recovery and 10% would remain in escrow in order to satisfy the two attorney liens of Van Meter and Gould. If after the satisfaction of all lien claimants, there was still a remainder in the 10% withheld for escrow, that amount would go to the client. Ms. Miller disputes this explanation, alleging the second agreement specified 60% go to her rather than the initial 50%.

¶13 On August 31, 2015, a formal release of OUMC's medical claim was completed and executed in order to finalize the settlement agreement that was reached with OUMC on April 28, 2015. The forms were sent directly to Ms. Miller by email and she was able to sign the documents and return the same by fax.

¶14 When Respondent received the settlement check of $75,000 from OUMC on September 21, 2015, he endorsed the check with both his name and Ms. Miller's name as the check was made out to both of them. Respondent alleges that he signed Ms. Miller's name with her consent. He then deposited the check into his operating account. On September...