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

• Decision Date: 01 March 2016
• Docket Number: <span>SCBD No. 6306.</span>,<span>OBAD No. 2056.</span&gt
• Citation: 368 P.3d 810
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Derek Brion SMITH, Respondent.
• Court: Oklahoma Supreme Court

368 P.3d 810

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

v.Derek Brion SMITH, Respondent.

OBAD No. 2056.

SCBD No. 6306.

Supreme Court of Oklahoma.

March 1, 2016.

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

Derek Brion Smith, Oklahoma City, Oklahoma, No Appearance.

EDMONDSON, J.

¶ 1 Respondent is licensed to practice law in this State. This Court finds several violations of the lawyer's duty of ethical conduct by respondent, and imposes upon him disbarment and costs.

¶ 2 Seven of respondent's former clients filed grievances against him with the Oklahoma Bar Association. Respondent did not respond to the clients' grievances as requested by the Bar Association. The Oklahoma Bar Association filed a formal Complaint in this Court against Respondent alleging seven counts of professional misconduct relating to seven of his former clients. Respondent did not file a response to the Complaint in this Court. Respondent did not appear at his scheduled hearing before the trial panel of the Professional Responsibility Tribunal. Several witnesses testified at the trial panel hearing. The Bar Association filed a motion for the allegations of the Complaint to be deemed admitted by respondent, and the trial panel granted the motion. The trial panel's report was filed in this Court, and the Oklahoma Bar Association filed its brief. The Bar Association filed an application for an order assessing its costs against respondent. Respondent filed no brief or any other filing in this Court.

Count I—McCuddy's Grievance

¶ 3 Queta McCuddy paid respondent a fee of $2,500 for representation in a child custody dispute. Respondent filed a motion to modify child custody for clarification of joint custody issues and he appeared at one hearing. Respondent failed to appear at a scheduled meeting of counsel and parties on the matter. McCuddy tried numerous times to contact respondent by text messages, emails, and phone calls. After a few months of these unsuccessful efforts she decided to hire a different lawyer and McCuddy's father eventually obtained her file from respondent at respondent's residence. McCuddy testified she was required to pay additional fees to her new lawyer and the child custody matter had been completed with new counsel.

Count II—Patton's Grievance

¶ 4 Patton paid respondent $1,500 as a retainer for respondent to file a paternity proceeding so Patton could obtain custody of children. Patton stated the matter was an "agreed paternity" between him and the mother for the purpose of obtaining a judicial order awarding child custody. Patton testified respondent took four to six months to serve process on the mother. He testified that he was informed that a temporary support order was entered and he wanted to meet with respondent to find out the provisions of the temporary order and what his obligations were, but "I could never get a return of a phone call or text message." He testified he "never knew how much child support I was supposed to be paying." He testified that after getting a copy of the temporary order the respondent would not return his phone calls or otherwise contact him.

¶ 5 Patton hired a new lawyer and paid him $1,500 to complete the legal matter. Patton sent respondent a text message requesting an invoice or an accounting for his work, but respondent never replied. Patton testified that respondent's lack of timely communication concerning support obligations and the issue of unpaid support resulted in Patton being unnecessarily placed in a situation requiring unusual efforts on Patton's part to meet past and current support obligations. He testified his new lawyer was able to conclude the legal matter with a "favorable outcome" for Patton.

Count III—Haynes' Grievance

¶ 6 Haynes alleged in her grievance that she paid a $1,500 fee for representation in a Grady County District Court proceeding involving child support and child daycare. She alleged her efforts were unsuccessful when trying communicate with respondent concerning errors in a proposed court order.

¶ 7 The efforts of the Bar Association were unsuccessful to include telephonic testimony from Haynes during the hearing. The Bar Association filed a motion to have all allegations against respondent in all Counts of its Complaint be deemed admitted by respondent's failure to file a response to the Complaint. The trial panel granted the motion.

Count IV—Conley's Grievance

¶ 8 Respondent represented Conley in his first divorce. Conley's ex-wife filed an application concerning child support and Conley paid respondent $1,500 for legal representation. Conley testified he paid respondent "and then he never filed any papers or anything like that." His ex-wife later informed Conley that "nobody ever filed anything" and he hired a different lawyer.

¶ 9 Conley explained he tried to contact respondent during the time he was seeking a new lawyer, but respondent "never replied back." Conley testified respondent "never done anything for me on that or gave me my money back." Conley asked his new lawyer to contact respondent and request a refund of his money. Respondent did not reply to the requests from Conley's new lawyer.

¶ 10 An investigator for the Bar Association identified an exhibit of respondent's bank accounts, including personal and trust accounts. They showed Conley's $1,500 check was deposited into respondent's personal joint account with his wife and not his trust account.

Count V—Hyden's Grievance

¶ 11 Hyden paid respondent a $2,000 retainer. Respondent did not have a written fee agreement with Hyden and told her he would inform her how much he was going to bill her as her child custody matter progressed. She testified that respondent appeared at two hearings. During the one hearing she and respondent both appeared, respondent made a disparaging comment about her to the judge. She said she had no idea why respondent made the comment to the judge, her motion was denied, and respondent did no further work on her case. She testified there were five hearings, and respondent did not appear at three of the hearings

¶ 12 Hyden tried numerous times to contact respondent concerning her case and his failure to appear at hearings. She attempted to contact him by telephone, email, and faxes: "I tried everything I knew how. I could not get ahold of this man." She hired another lawyer and paid him $3,000. She testified to her belief that respondent's neglect hurt her case because it happened during the time of an investigation by the Department of Human Services when an active lawyer could have helped the family. She testified to her belief respondent did not earn the $2,000 she paid him.

Count VI—Lenhart Grievance

¶ 13 Lenhart hired respondent to obtain judicial enforcement of Lenhart's previously awarded right for child visitation, and for additional visitation. Lenhart paid $2,000 to respondent. Respondent informed Lenhart of difficulties in serving process on his ex-wife. Respondent filed a document in the District Court on behalf of Lenhart.

¶ 14 Lenhart testified concerning leaving voice messages on respondent's phone with no return phone calls, and his numerous trips to respondent's office and being told no time was available to meet with him. Neither respondent or Lenhart appeared at the scheduled hearing on the matter. The assigned judge ruled in favor of Lenhart's ex-wife, and ruled she was entitled to an attorney's fee against Lenhart.

¶ 15 Lenhart then hired two other lawyers who worked together as co-counsel. He paid them $25,000. He testified on the positive influence in the case caused by the appointed guardian ad litem. He testified he is able to have visitation with his child due to the efforts of his two new lawyers. He also testified he wrote a letter to respondent and pointed out respondent's failure to appeal at a scheduled hearing, respondent had it rescheduled and again failed to appear, and respondent did not tell Lenhart to attend the hearing. He wrote to respondent requesting the return of $1,000, one-half of the amount previously paid. Respondent did not return any money or contact Lenhart.

Count VII—Meade Grievance

¶ 16 Meade used respondent for legal services on three occasions. He testified that the first two times he hired respondent things "went well" except "it kind of got to the point where I would call him and he wouldn't really call me back." The third time he hired respondent for a custody/visitation matter involving Meade's minor child. Meade paid respondent $1,500 for this matter.

¶ 17 After a hearing on the matter, respondent was directed to prepare an order for the judge's signature. Meade testified concerning his numerous attempts to contact respondent, and his need to get a copy of the order because his child's school needed a copy of the order showing Meade's sole custody of the child. Meade eventually obtained a copy of the order directly from the judge, and respondent later contacted Meade to provide him a copy. Meade hired a new lawyer after his difficulties with respondent.

Additional Testimony

¶ 18 A person employed as a secretary in an office with respondent and another lawyer testified. She received and signed for certified mail sent to respondent, including mail from the Bar Association. She routinely placed respondent's mail on his desk where respondent received the mail. She said she remembered the Bar Association mailings to respondent because they "were the big flat brown ones" with a confidentiality stamp and they were placed "in plain view on his desk where he could see them."

¶ 19 An investigator for the Bar Association testified at the hearing. Since 2007 she has investigated professional grievances filed against respondent. She testified concerning many attempts to contact respondent. These attempts included regular mail, certified mail, telephone messages, and emails. The mail was sent to respondent's address listed on the Oklahoma Bar Association roster.

¶ 20 So...