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

• Decision Date: 19 November 2019
• Docket Number: SCBD 6621
• Citation: 461 P.3d 174
• Parties: STATE of Oklahoma, EX REL., OKLAHOMA BAR ASSOCIATION, Complainant, v. Brandon Duane WATKINS, Respondent.
• Court: Oklahoma Supreme Court

461 P.3d 174

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

v.Brandon Duane WATKINS, Respondent.

SCBD 6621

Supreme Court of Oklahoma.

FILED NOVEMBER 19, 2019

REHEARING DENIED APRIL 14, 2020

Tracy Pierce Nester, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Brandon Duane Watkins, Perkins, Oklahoma, Pro Se.

OPINION

DARBY, V.C.J.:

¶1 The Oklahoma Bar Association (Bar) initiated this disciplinary proceeding on January 8, 2018, by filing a complaint against Respondent pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch.1, app. 1-A. The complaint alleged violations of RGDP 1.3 (discredit upon the legal profession) and Oklahoma Rules of Professional Conduct (ORPC) 1.1 (competence), 1.3 (diligence), 1.4 (adequate communication), 1.15 (safeguard client property), 3.2 (expedite litigation), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 5 O.S.2011, ch. 1, app. 3-A. The Professional Responsibility Tribunal (Trial Panel) found clear and convincing evidence establishing the facts in the complaint and that Respondent violated RGDP 1.3 and ORPC 1.1, 1.3, 1.4, 1.14 [sic], and 3.2.¹ The Trial Panel recommended suspension of two years and one day, and the Bar asked this Court to impose appropriate discipline and assess costs.

¶2 The questions before this Court are (1) whether Respondent violated the ORPC and RGDP, and (2) if so, what discipline should be imposed. We find that Respondent violated numerous rules governing attorney conduct. Due to the nature of Respondent's actions, the length of time they were ongoing, and his past disciplinary history, we determine the proper discipline is suspension for two years and one day.

I. STANDARD OF REVIEW

¶3 The Supreme Court of Oklahoma possesses original, exclusive, and nondelegable jurisdiction to control and regulate the practice of law, licensing, ethics, and discipline of attorneys. State ex rel. Okla. Bar Ass'n v. Braswell , 1998 OK 49, ¶ 6, 975 P.2d 401, 404 ; see also 5 O.S.2011, § 13 ; RGDP 1.1. The Bar has the burden to present clear and convincing evidence demonstrating the lawyer's misconduct. State ex rel. Okla. Bar Ass'n v. Godlove , 2013 OK 38, ¶ 3, 318 P.3d 1086, 1088 ; see also RGDP 6.12. Clear and convincing evidence is evidence sufficient, both in quality and quantity, to produce a firm conviction of the truth of the allegations. Godlove , 2013 OK 38, ¶ 3, 318 P.3d at 1088 ; see also RGDP 6.12.

¶4 The Court reviews the Trial Panel proceeding de novo in order to determine whether discipline is warranted and what sanction, if any, is to be imposed. State ex rel. Okla. Bar Ass'n v. Bednar , 2019 OK 12, ¶ 2, 441 P.3d 91, 95. To make this assessment and imposition, we must receive a record that permits "(a) an independent on-the-record determination of the critical facts and (b) the crafting of an appropriate discipline." State ex rel. Okla. Bar Ass'n v. Schraeder , 2002 OK 51, ¶ 6, 51 P.3d 570, 574. The Bar asserts that the record in this case — consisting of pleadings, transcript, exhibits, application to assess costs, and the Trial Panel Report — is complete and sufficient for our review and the imposition of discipline. We agree.

II. PRIOR DISCIPLINE

¶5 In November 2013, Respondent agreed to represent a husband and wife regarding a promissory note; in July 2014, he filed a breach of contract action on their behalf. Bar Ex. 11. Eventually, the court dismissed the case and awarded the opposing party attorney fees and sanctions against Respondent totaling $9,099.41. Id. As a result, on July 20, 2015, the client filed grievance DC-15-138 against Respondent. Bar Ex. 10.

¶6 On November 30, 2015, Respondent signed a Diversion Program Agreement to complete classes and pay all associated costs; in return, he received a private reprimand and the Professional Responsibility Commission did not seek further discipline. Bar Ex. 10, at OBA 60-67; see also RGDP 5.1(c)-(f). Respondent completed Law Practice Management, Trust Accounting Essentials, and Communication and Client Neglect classes between March 22 and April 12, 2016. Complaint at 5, para. 23. On July 15, 2016, Respondent received a private reprimand. Bar Ex. 11, at OBA 68; Complaint at 5, para. 23.

III. FACTS AND PROCEDURAL HISTORY

¶7 In December 2013, Chris Chaney hired Respondent after Chaney's wife was killed in an automobile accident. In January 2014, Respondent filed a petition for letters of administration, appointment of personal representative, and determination of heirs in In re Estate of Jeannie Kay Chaney , No. PB-2014-2 (Craig Co. Dist. Ct.). Bar Ex. 5, at OBA 518. In February, the district court determined heirs and named Chaney as personal representative of the estate. On June 3, 2014, Respondent deposited into his client trust account a $100,000 settlement check received for the death of Jeannie Chaney.

¶8 On July 1, Respondent filed notice to creditors, an inventory and appraisal of the estate, consent to partial distribution by the other heirs (dated June 12 and 18, 2014), and a petition for partial distribution. The petition stated that pursuant to title 84, section 213(B)(2)(c) of the Oklahoma Statutes, the estate would be distributed one-half (1/2) to Chaney, one-sixth (1/6) to Shaya Emerson, Mrs. Chaney's adult child, and one-sixth (1/6) each to Mrs. Chaney's two minor children. The petition requested distribution of $70,000 to the personal representative "in order to pay attorney fees and other costs of administration, and for distribution to the above described heirs at law." Bar Ex. 5, at OBA 545. On July 1, 2014, the district court ordered immediate distribution of $70,000. Bar Ex. 5, at OBA 548.

¶9 Almost five months later, on November 24, 2014, Respondent paid Chaney $32,570.55. Chaney's settlement statement listed deficits for five "liens filed with court per probate" in the total amount of $1,858.90² and an attorney fee of $33,000. The statement averred a "total amount due to all heirs and Mr. Chaney" of $65,141.11. Chaney signed the settlement statement and accepted the funds due to him personally. At that point, Respondent had presumably paid out $64,570.55 of the $70,000.00 ordered by the court.³ Respondent, however, still owed the remaining heirs $32,570.55.

¶10 On April 30, 2015, Emerson (the decedent's lone adult child) signed a settlement statement from Respondent which referred to her as "client" a total of seven times. Respondent paid Emerson $10,856.84⁴ — bringing the total amount Respondent had presumably disbursed to $78,286.29⁵ of the $70,000.00 ordered for immediate payment almost ten months earlier. But Respondent still owed the remaining heirs $21,713.71.

¶11 On June 25, 2015, Chaney terminated Respondent's services via letter. Bar Ex. 4, at OBA 39. Chaney requested that Respondent send him the case file and pay the remaining heirs, or anyone else owed, within ten days. Respondent did not do either.

¶12 On November 21, 2016, almost a year and a half after terminating representation, Chaney filed a grievance that stated in part:

[Respondent] still owes my family part of the settlement.... It was our understanding that these funds would be placed into a trust account until the children reach the age of 18. Respondent has been paid to set up these accounts and has still yet to do so. On June 26th, 2015 [sic], I sent [Respondent] a letter of termination, demanding that these funds be paid to the minors within ten (10) days. This has yet to be done.

Bar Ex. 1, at OBA 4. At this point, Respondent had held the funds for the minor children of the deceased for over two-and-a-half years.

¶13 Three months later, on February 21, 2017, Respondent withdrew all of the money in his client trust account and filed a motion to interplead $23,573.86 for the remaining heirs,⁶ and a motion to withdraw as counsel. The court allowed Respondent's withdrawal as counsel and ordered the court clerk to hold the money pending distribution orders. That same day, Respondent filed his response to the complaint denying the allegations.

¶14 From July 2014 through February 2017, Respondent made nine cash withdrawals,⁷ seventy-nine transfers to his personal checking account,⁸ and two withdrawals for loan payments, all out of his client trust account . Respondent made the first loan payment on December 5, 2016 for $963.41. Bar Ex. 17, at OBA 431-34. He made the second loan payment on January 13, 2017 for $660.94. Id. at OBA 467-70. The payments were credited to two different loan account numbers, but both loan payment slips name Respondent as the account owner. Id. at OBA 433, 469.

¶15 The Bar investigated Respondent and on January 8, 2018, filed a formal complaint setting forth three counts of professional misconduct. The complaint alleged first that Respondent converted or misappropriated client funds when he failed to timely pay heirs, his client trust account balance was regularly below the amount he owed, and he never established separate bank accounts in trust for the minor heirs as required by title 12, section 83 of the Oklahoma statutes. Complaint at 2-3, paras. 7-13. Second, the complaint alleged that Respondent committed neglect and failed to communicate with clients: repeatedly neglected to return client calls, failed to notify clients when he relocated offices on three occasions while the case was ongoing, delayed five to ten months before paying the first two heirs, and never created trust accounts for the minor heirs. Complaint at 4, paras. 16-19. Third, the complaint alleged that discipline should be enhanced due to Respondent's diversion program agreement in the previous matter. The Bar submitted evidence that Respondent was properly served with notice. On January 29, 2018, Respondent filed an answer to the complaint.

¶16 On May 10, 2018, at the hearing before the Trial Panel, Chaney testified that from July through November of 2014, he called Respondent's office and cell phone every week and was...