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

• Decision Date: 14 January 2020
• Docket Number: SCBD 6687
• Citation: 461 P.3d 187
• Parties: STATE of Oklahoma EX REL., OKLAHOMA BAR ASSOCIATION, Complainant, v. Laurie Jean MILLER, Respondent.
• Court: Oklahoma Supreme Court

461 P.3d 187

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

v.Laurie Jean MILLER, Respondent.

SCBD 6687

Supreme Court of Oklahoma.

FILED JANUARY 14, 2020

REHEARING DENIED MARCH 30, 2020

Peter Haddock, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Travis A. Pickens, Edinger, Leonard & Blakley, PLLC, Oklahoma City, Oklahoma for Respondent.

COMBS, J.:

¶1 The Complainant, State of Oklahoma ex rel. Oklahoma Bar Association (Complainant), began proceedings pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A alleging three counts of professional misconduct against the Respondent, Laurie Jean Miller (Respondent). The Respondent is an active member of the Oklahoma Bar Association and is currently in good standing with the Association. For most of her career she has been a sole practitioner but has also shared offices with other attorneys. She left private practice in 2017 and took a position with an insurance company where she is currently employed.¹ The Complainant's allegations arise from the Respondents conduct towards several of her clients she had while in private practice. The matters involved are related to three separate governmental tort claims actions. The Complainant alleges the Respondent's actions are in violation of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A, and the RGDP and are cause for professional discipline.

I. Procedural History

¶2 Two of the Respondent's former clients filed grievances against her with the Complainant. Claudia Murcia filed her grievance on December 23, 2016 (Murcia grievance). Brian Sanders filed his grievance on November 16, 2017 (Sanders grievance). After receiving responses from the Respondent in both grievances, the Complainant opened a formal investigation into each one. The Complainant met with the Respondent several times to discuss the grievances. Thereafter, it filed its formal Complaint against the Respondent on September 17, 2018. The Respondent initially represented herself and entered an appearance and filed her Answer. Thereafter she hired an attorney to represent her. During the course of investigating the Sanders grievance the Complainant discovered information concerning another similar case. The Complainant then opened a grievance against the Respondent in this new matter concerning Respondent's former clients Cornel and Sharon Solis (Solis grievance). It also filed a Supplemental Complaint on December 21, 2018, containing these new allegations of misconduct. Respondent's attorney answered the Supplemental Complaint.

¶3 The Professional Responsibility Tribunal (PRT) held a hearing concerning these grievances pursuant to Rule 6, RGDP which occurred on two separate days; March 14, 2019 and March 25, 2019. In closing argument, the Complainant recommended the Respondent be suspended from the practice of law for one year. On June 13, 2019, the Trial Panel filed its report wherein it found the allegations of the Complaint and Supplemental Complaint had been established by clear and convincing evidence. Even after considering all the mitigating factors the Trial Panel unanimously recommended a longer suspension of eighteen months. This matter was assigned to this office on August 19, 2019.

II. Standard of Review

¶4 In Bar disciplinary proceedings, this Court possesses exclusive original jurisdiction. State ex rel. Oklahoma Bar Ass'n v. Holden , 1995 OK 25, ¶ 10, 895 P.2d 707. Our review of the evidence is de novo in determining if the Bar proved its allegations of misconduct by clear and convincing evidence. Rule 6.12(c), RGDP; State ex rel. Oklahoma Bar Ass'n v. Bolusky , 2001 OK 26, ¶ 7, 23 P.3d 268. Clear and convincing evidence is that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. State ex rel. Oklahoma Bar Ass'n v. Green, 1997 OK 39, ¶5, 936 P.2d 947. Our goals in disciplinary proceedings are to protect the interests of the public and to preserve the integrity of the courts and the legal profession, not to punish the offending lawyers. State ex rel. Oklahoma Bar Ass'n v. Kinsey, 2009 OK 31, ¶15, 212 P.3d 1186. Discipline is administered to preserve the public confidence in the bar and to deter an attorney from similar future misconduct. State ex rel. Oklahoma Bar Ass'n v. Phillips, 2002 OK 86, ¶21, 60 P.3d 1030. Whether to impose discipline is a decision that rests solely with this Court and the recommendations of the PRT are neither binding nor persuasive. State ex rel. Oklahoma Bar Ass'n v. Eakin , 1995 OK 106, ¶ 8, 914 P.2d 644.

III. The Grievances

A. Count I. The Murcia Grievance

¶5 The first grievance was filed by Claudia Murcia (Murcia). Murcia is from El Salvador, and English is not her first language. The record reflects she uses a translator when communicating at all relevant times related to her grievance. In 2009, Murcia worked at a hotel in Norman, Oklahoma. In February of that year she was injured while riding a public bus to work. Her injuries required medical treatment and she incurred several medical bills. Murcia had health insurance at the time but chose not to file these tort-related claims with her insurance. She hired Michael Sherrod (Sherrod) to represent her in this personal injury matter. Sherrod filed a petition on February 11, 2011 against the State of Oklahoma ex rel. University of Oklahoma, Cleveland Area Rapid Transit, and the bus driver.² Since this tort claim involved a governmental entity the Oklahoma Governmental Tort Claims Act (OGTCA) applied. Sherrod, however, filed the petition within two years from the date of the accident rather than under the provisions of the OGTCA.³ Sherrod testified he realized he had missed the statute of limitations when the opposing side filed a motion to dismiss and thereafter he immediately informed Murcia he had missed the statute of limitations.⁴ Murcia hired the Respondent in January 2012 hoping she could proceed with her case. Murcia testified that Sherrod had informed her that the statute of limitations had run prior to hiring the Respondent and that she informed the Respondent of this at their first meeting.⁵ The Respondent testified Murcia had not informed her that the statute of limitations had run but told her only that her attorney could not prosecute her case any longer and was ill.⁶ The Respondent testified she would not have taken Murcia's case had she known the statute of limitations had run.⁷

¶6 The Respondent reviewed the petition online and determined nothing on its face seemed out of order, so she proceeded with the representation. She first filed an application for leave to make service out of time which was quickly challenged by a motion to vacate. Not long afterwards, the opposing counsel filed a motion to dismiss. The opposing counsel also sent the Respondent a letter with an attached proposed motion for sanctions which she would file if the Respondent did not dismiss the action.⁸ On September 10, 2012, the Respondent dismissed the action by filing a dismissal without prejudice.⁹

¶7 Following the dismissal, the Respondent helped negotiate a settlement between Murcia and Sherrod for any malpractice Sherrod may have made in her case. The goal was to see if Sherrod could compensate Murcia for his failure to timely file her petition, and any money received from him could be used to pay Murcia's medical bills. The Respondent agreed to help Murcia with these matters. Her contract with Murcia only concerned the tort action.¹⁰ There is no evidence of a subsequent contract after the tort action was dismissed. In her January 17, 2017 response to the grievance, the Respondent wrote "at this point [after the case was dismissed], I realized this case is going to be done pro-bono and was in fact an attempt to help a colleague to keep from obtaining a bar complaint and a lawsuit against him."¹¹ She later testified that even though she realized there would be no recovery, she did not tell Murcia she would represent her pro-bono on these additional matters.¹²

¶8 On or about July 25, 2014, Sherrod settled with Murcia by providing her a quit claim deed thereby transferring land he owned in Pittsburgh County, Oklahoma.¹³ Murcia authorized the Respondent to sell the land on her behalf and to apply the proceeds to her outstanding medical bills.¹⁴ Sherrod gave the Respondent's name to a potential purchaser, Mr. Stuart, who was interested in buying Sherrod's land.¹⁵ Mr. Stuart contacted the Respondent and they negotiated a sale of the land.¹⁶ Murcia agreed and the property was sold on March 29, 2015 for $4,600.00 in cash.¹⁷ On the same day, Murcia signed and presented a release of all claims to Sherrod which was prepared by the Respondent.¹⁸ Murcia's total medical bills were $12,084.95 which exceeded the amount of the proceeds from the sale. The Respondent agreed to negotiate with the providers/collection agencies to reduce the bills.¹⁹ The largest bill was to Therapy in Motion in the amount of $5,691.50 for physical therapy.²⁰ TekCollect, a collection agency, was authorized to collect this bill in December 2014 and began contacting Murcia around that time.²¹ Other providers had been pursuing collection efforts as well.²² These efforts, including Therapy in Motion's efforts to collect Murcia's debt, had begun prior to the sale of the land.²³

¶9 After the March 29, 2015 sale took place, the Respondent took the $4,600.00 cash proceeds and placed them in a safe at her law office.²⁴ Murcia did not ask for the money because she wanted the Respondent to negotiate and reduce her bills to the amount of the sale proceeds and use that money to pay those bills.²⁵ This was their agreement and she trusted the Respondent to do this.²⁶ The Respondent had an Interest on Lawyers Trust Account (IOLTA) at the time she placed the money in her safe.²⁷ She testified s...