State ex rel. Okla. Bar Ass'n v. Zimmerman, SCBD–5756.

• Decision Date: 17 April 2012
• Docket Number: No. SCBD–5756.,SCBD–5756.
• Citation: 276 P.3d 1022,2012 OK 35
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Miles C. ZIMMERMAN, Respondent.
• Court: Oklahoma Supreme Court

276 P.3d 1022

2012 OK 35

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

v.Miles C. ZIMMERMAN, Respondent.

No. SCBD–5756.

Supreme Court of Oklahoma.

April 17, 2012.

Original Proceeding for Attorney Discipline.

¶ 0 The Oklahoma Bar Association, Complainant, brought a disciplinary proceeding against Miles C. Zimmerman, Respondent, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1–A. The Bar alleged attorney misconduct in violation of Rules 1.1, 1.4, 1.15, Oklahoma Rules of Professional Conduct (ORPC), and Rules 1.3 and 1.4(b), RGDP. The Trial Panel of the Professional Responsibility Tribunal (PRT) and the Bar recommended discipline of a private reprimand.

RESPONDENT PUBLICLY CENSURED; ORDERED TO REFUND $1385.00 FOR OVERPAYMENT OF ATTORNEY FEES AND TO PAY COSTS OF $1229.09 WITHIN NINETY (90) DAYS.

Loraine Dillinder Farabow, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Miles C. Zimmerman, Chandler, Oklahoma, Pro Se.

OPINION

WATT, Justice:

¶ 1 Complainant, Oklahoma Bar Association (the Bar), brought this original proceeding for attorney discipline against Respondent, Miles C. Zimmerman, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, app. 1–A. In its three-count complaint filed against him on June 9, 2011, the Bar alleged he violated Rules 1.1 and 1.4, Oklahoma Rules of Professional Responsibility (ORPC), 5 O.S.2001, Ch. 1, App. 3–A, and ORPC Rule 1.15, 5 O.S. Supp.2004, Ch. 1, App. 3–A and 5 O.S. Supp.2008, Ch. 1, App. 3–A. The Bar also alleged violations of Rules 1.3, and 1.4(b), RGDP, 5 O.S.2001, Ch. 1, App. 1–A.

FACTS AND PROCEDURAL BACKGROUND

A. Count I

¶ 2 On June 25, 2010, the Bar received a grievance against Respondent from Janie Phillips, the sister of his former client, Brenda Evans–Crownover (Brenda), complaining about his conduct as her sister's lawyer in a criminal matter. Phillips and her brother, Jim Bowen, hired Respondent in October, 2004, following Brenda's criminal trial in Lincoln County District Court, ¹ to represent her at the sentencing stage and to pursue post-conviction and appellate relief as appropriate. He did not represent Brenda at her trial. Phillips and Bowen paid Respondent a total of $7,000.00 for fees, in addition to the sum of $1,650.00 for the cost of a transcript of the criminal trial. It is undisputed that Respondent never obtained a transcript and did not appeal the conviction.

¶ 3 He filed a motion to reconsider sentencing on October 31, 2005, but the motion was not heard.² He filed an application for post-conviction relief on December 7, 2007, which was denied. He testified that he understood it was denied because a timely appeal had not been previously filed and because the application did not show that Brenda was denied an appeal through no fault of her own.³ Respondent testified that he has since agreed with the Bar that it may contact Brenda, and that if she wishes for him to file an appeal out of time, he will do the work for her on a pro bono basis.

¶ 4 Respondent testified that his client and her family wanted an appeal to be filed on grounds of: (a) the ineffective assistance of trial counsel for, inter alia, failing to file a motion to suppress before the trial, and (b) the excessive sentence imposed by the trial court. He assessed the merits of an appeal on those grounds by talking to her trial counsel and to the prosecutor, and by reviewing both the court file and trial counsel's defense file.

¶ 5 Respondent decided not to pursue an appeal for the ineffective assistance of trial counsel for his failure to file a motion to suppress. He testified Brenda told him about an informant whom she believed had set her up by planting drugs at her home. He said the post-trial discussions with Brenda went from pursuing an appeal to efforts to exonerate her, e.g., through a pardon from the governor. However, after speaking to the confidential informant, he received information which not only would not have exonerated her, but which could have been further damaging to her. He thus decided against seeking a pardon from the governor and decided that filing an appeal for ineffective assistance of counsel for failing to file a motion to suppress was not in her best interests. As to an appeal for excessive sentence, he stated that because the court is given great discretion in sentencing, he believed an appeal would not be worthwhile. He admitted he did not discuss this decision with Brenda or her family and did not keep them informed.

¶ 6 Respondent also learned that Brenda testified on her own behalf at her trial against her lawyer's advice. In so doing, he said she “put the police on trial.” Respondent stated Brenda's trial lawyer thought he had the case won until that time. Although the DA did not necessarily agree with trial counsel's assessment to that extent, he felt her testimony clearly damaged her case with the jury.

¶ 7 The Bar alleged the above conduct constituted violations of ORPC Rules 1.1,⁴1.4,⁵1.15,⁶ and RGDP Rule 1.3.⁷

B. Count II

¶ 8 Phillips requested a copy of the trial transcript from Respondent to help her sister. Respondent repeatedly assured her he would provide one but never did. In December, 2009, more than five years after Brenda's conviction, Phillips contacted the courthouse and learned that Respondent had never ordered one. He continued to tell Phillips she would receive a copy. On March 31, 2010, Phillips requested Respondent to give her a copy or to advise when she could obtain the transcript so that she could make a copy of it. She received no response, and soon thereafter, on June 25, 2010, the Bar received Phillips' grievance.

¶ 9 In Respondent's answer, he stated that he had reviewed the files and spoken with defense counsel and the prosecutor, but had decided no appeal would be successful. He never spent the money which was paid by Bowen and Phillips for the transcript. He expressed regret that he did not file what he termed a “pointless appeal.” He told the Bar he had no satisfactory answer as to why the money, almost six years later, was still in his possession and that he would not “insult either the Bar or Ms. Phillips with attempting to offer one.” He offered to return the money in full with interest or to purchase the transcript.⁸

¶ 10 The Bar alleged the above conduct violated Rule 1.15(b), ORPC, 5 O.S. Supp.2004, Ch. 1, App. 3–A, Rule 1.15(d), ORPC, 5 O.S. Supp.2008, Ch. 1, App. 3–A, and Rule 1.3, RGDP, 5 O.S.2001, Ch.1, App. 1–A.

C. Count III

¶ 11 In Count III, the Bar alleged the $1650.00 paid to Respondent for a trial transcript should have remained in his lawyer trust account until he reimbursed the funds in October, 2010, in violation of Rule 1.15(a) and (b), ORPC, 5 O.S. Supp.2004, Ch. 1, App. 3–A, and Rule 1.15(a), (c), (d) and (f), ORPC, 5 O.S. Supp.2008, Ch. 1, App. 3–A. However, the evidence showed the balance in his trust account was significantly lower than that amount on numerous dates, even showing an overdraft of $12,698.10 on November 8, 2007. The Bar also alleges Respondent violated Rules 1.3 and 1.4(b), RGDP, 5 O.S.2001, Ch. 1, App. 1–A.⁹

¶ 12 When Respondent filed his answer to the Bar's complaint, he denied that he had deposited the check for $1650.00 into his trust account. Later, however, after meeting with the Bar's investigator, he agreed the funds had been deposited into that account. Unfortunately, however, he also discovered the check he had written to the court reporter on December 27, 2004, was still in his possession. He realized the transcript had never been ordered.

¶ 13 The Bar presented evidence of numerous dates Respondent's trust account fell below a balance of $1650.00, despite the fact the client's check had been deposited and the transcript had never been purchased. During this time period, he had an office sharing arrangement with an attorney. Respondent had assigned the bookkeeping responsibilities to a “temp” worker. When the other attorney had a settlement in a case, he brought an endorsed settlement check to the bookkeeper who made out checks to the parties according to the settlement agreement. Respondent signed the checks, only to discover the endorsement on the settlement check was invalid. The trust account checks were returned for insufficient funds, and the account showed a negative balance.

¶ 14 Respondent testified he learned he should have required the other attorney to set up a separate trust account. He also stated he terminated the bookkeeper's employment upon learning the trust account was not properly maintained. He and his staff also attended “trust account school” conducted by the Bar's Ethics Advisor, Travis Pickens, as further effort to maintain his trust account properly. Respondent testified he learned the proper way to set up and deposit retainers, bill against them, and disburse funds as appropriate, which was strikingly different from his procedures at the time he accepted funds from Brenda's brother and sister. He testified he understands the ultimate responsibility for his account rests with him as the lawyer and fiduciary.¹⁰ He stated he never intentionally stole money from a client and never would. Currently, he and his assistant both check the monthly statements and reconcile them for each of his clients.

STANDARD OF REVIEW

¶ 15 In bar disciplinary matters, this Court exercises its constitutional, nondelegable power to regulate the practice of law and the ethics, licensure, and discipline of its practitioners. State ex rel. Oklahoma Bar Association v. Passmore, 2011 OK 90, 264 P.3d 1238;State ex rel. Oklahoma Bar Association v. Latimer, 2011 OK 78, 262 P.3d 757. In this Court's de novo review, we are not bound by the findings of fact by the trial panel of the Professional Responsibility Tribunal (PRT), its view of the evidence or credibility of witnesses, or its recommendation for discipline. State ex rel. Oklahoma Bar...