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

• Decision Date: 26 June 2012
• Docket Number: SCBD No. 5693.
• Citation: 281 P.3d 1264,2012 OK 66
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Brandon HILL, Respondent.
• Court: Oklahoma Supreme Court

281 P.3d 1264

2012 OK 66

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

v.John Brandon HILL, Respondent.

SCBD No. 5693.

Supreme Court of Oklahoma.

June 26, 2012.

ORIGINAL PROCEEDING FOR LAWYER DISCIPLINE.

¶ 0 The Oklahoma Bar Association brings this disciplinary proceeding pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1–A (2011). The Professional Responsibility Tribunal found that the respondent had violated the rules governing a lawyer's conduct and recommended that the respondent receive a public censure, perform community service, and required the respondent's continued participation in a support program.

RESPONDENT PUBLICLY CENSURED; COSTS ASSESSED.

Ted D. Rossier, Assistant General Counsel, Katherine M. Ogden, Staff Attorney, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Tom M. Cummings, Oklahoma City, Oklahoma, for Respondent.

COLBERT, V.C.J.

¶ 1. Complainant, Oklahoma Bar Association (OBA), filed a fourteen-count complaint against Respondent, John B. Hill, pursuant to Rule 6, of the Rules Governing Disciplinary Proceedings, (RGDP), Okla. Stat. tit. 5, ch. 1, app. 1–A (2011), for violating the Oklahoma Rules of Professional Conduct, (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3–A (2011).¹ The OBA and Respondent then entered into a stipulation of facts and mitigating factors. A panel of the Professional Responsibility Tribunal (PRT) considered the complaint, evidence presented, and parties' stipulations. The PRT found that the OBA failed to establish certain rule violations and unanimously recommended, over the OBA's objection, the imposition of a public censure and assessed the costs of these proceedings to Respondent. Additional requirements were also recommended. After reviewing the matter de novo, this Court adopts the PRT's recommendation of a public censure along with the assessment of costs.

¶ 2. The record before this Court includes the: (1) depositions of Respondent and his spouse; (2) OBA's complaint and reply briefs; (3) Respondent's answer brief; (4) OBA's application to assess costs and Respondent's objection thereto; (5) hearing transcript, along with the parties' stipulations and other evidence attached; and (6) PRT's report.

SCOPE AND STANDARD OF REVIEW

¶ 3. “In bar disciplinary proceedings, this Court exercises exclusive original jurisdiction as a licensing court, not as a reviewing tribunal.” RGDP 1.1; State ex rel. Okla. Bar Ass'n v. Berger, 2008 OK 91, ¶ 12, 202 P.3d 822, 825. It is the responsibility of this Court to examine the record and assess the credibility and weight of the evidence in order to determine whether it clearly and convincingly establishes professional misconduct by a respondent and, if so, what the appropriate discipline, if any, should be. State ex rel. Okla. Bar Ass'n v. Stutsman, 1999 OK 62, ¶ 4, 990 P.2d 854, 858. Our review is de novo and we are not bound by the panel's advisory recommendations. State ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 262;State ex rel. Okla. Bar Ass'n v. Wilburn, 2006 OK 50, ¶ 4, 142 P.3d 420, 422. While engaging a full-scale non-deferential de novo review, this Court may approve the PRT's findings of fact, “make its own independent findings ... or take such other action as it deems appropriate.” RGDP Rule 6.15(a).

PROCEDURAL BACKGROUND AND MISCONDUCT

¶ 4. Respondent graduated from the Oklahoma City University, School of Law in 2002. He was admitted to the Oklahoma Bar Association and his name was entered on the Roll of Attorneys in 2004, upon his successful completion of the Oklahoma Bar Examination. At all times relevant to this complaint, Respondent has been duly licensed to practice law in this State, and has never been disciplined by this Court.

¶ 5. Upon admission to the OBA, Respondent worked for a medical malpractice defense firm for two years. In 2006, Respondent and his family moved to Hugo, Oklahoma, his hometown, and established a solo practice. While there, Respondent established the firms's operating and IOLTA Trust Accounts at First United Bank. Respondent's wife, Jamie Hill, had signatory authority on the business' operating account.

¶ 6. Respondent employed Wife, as the office manager. Wife assisted with client intake and managed all of the firm's banking matters-including, reconciling Respondent's operating and trust accounts. Respondent also employed a number of secretarial staff at different times.

¶ 7. In 2007, Respondent and his wife began experiencing marital problems. In addition, the couple struggled with the recent loss of a child. In December 2007, Respondent filed for divorce and removed Wife's name from the business' operating account. Wife and the parties' children moved out of the marital home. The Hills' later reconciled and dismissed the divorce action in January, 2008. Shortly thereafter, Wife instituted a subsequent divorce proceeding and left with the couple's children.

¶ 8. During this turbulent time in the couple's marriage, Respondent began suffering from depression. In August 2008, Respondent checked himself into Valley Hope, an inpatient treatment center in Cushing, Oklahoma. However, he was subsequently released because the inpatient program was restricted to treating individuals with substance abuse problems. So, in September 2008, Respondent relocated to Oklahoma City and entered the Lawyers Helping Lawyers program. Yet, Respondent's practice remained open. All the while, Wife continued to manage Respondent's practice and oversee the firm's operating and trust accounts. In so doing, Wife, along with various secretarial staff, began writing checks on the firm's operating and trust accounts without Respondent's knowledge or consent. It is against this canvas of unfortunate events that the following grievances were lodged.

Tom Hadley Grievance

¶ 9. Teresa Wickson retained Respondent to handle three matters: (1) a personal injury claim; (2) a probate case; and (3) a guardianship proceeding. Both Respondent and Wickson agreed that Respondent was hired on a 45% contingency fee basis for the personal injury case. However, neither party could produce the signed agreement. In February 2008, Respondent settled Ms. Wickson's personal injury case for $20,000. Respondent received two checks from the insurance company, one for $11,000 and the other for $9,000. Respondent and Ms Wickson acknowledged that the $9,000 check represented Respondent's 45% attorney fee and that the remaining check was for the benefit of Ms. Wickson and certain medical lien holders.

¶ 10. Rather than disburse Ms. Wickson's $11,000 settlement check into the trust account, Wife deposited both checks into Respondent's operating account which resulted in the commingling of the client's trust funds with Respondent's personal funds. Over the next several months, communication between Respondent and Ms. Wickson ceased; Respondent failed to provide an accurate accounting of the settlement funds and failed to appear at an emergency hearing in the guardianship proceeding.²

¶ 11. Ms. Wickson subsequently retained Tom Hadley to inquire into the status of her personal injury case and resolve the guardianship matter. Mr. Hadley sent several letters to Respondent requesting information regarding Ms. Wickson's personal injury case, to no avail. Mr. Hadley later contacted the insurance company and was advised that Respondent previously settled the claim. Mr. Hadley then contacted Respondent and demanded the settlement funds be delivered to his office.

¶ 12. Tom Hadley, later filed a grievance with the OBA concerning Respondent's representation of Ms. Wickson. Respondent admitted to receiving one of the two checks but denied cashing either one. According to Respondent, he endorsed the $9,000 check representing his portion of the settlement funds, but his staff endorsed the other check and deposited both in his operating account. And, because Respondent was not monitoring his accounts, the monies were commingled with his personal finances and was spent.

¶ 13. On October 5, 2009, Respondent delivered the entire $20,000 to Mr. Hadley and personally paid the medical liens in Ms. Wickson's case. As a result, Respondent did not retain any of his earned fees.

Fred Moores Grievance

¶ 14. Fred Moores retained Respondent to represent him in a criminal matter scheduled for trial on July 28, 2008. On the way to the trial, from a camping trip with his sons, the radiator exploded and the clutch burned out in Respondent's car. As a result, Respondent failed to appear. The trial judge removed Respondent from the case and assessed the jury fee as a sanction against Respondent.

¶ 15. Respondent subsequently provided the presiding judge with documentation supporting the condition of his vehicle. However, as of the date of the grievance, Respondent has not paid the jury fee upon the advice of his counsel.

Mary Holaday Grievance

¶ 16. In March 2008, Mary Holaday retained Respondent to complete two step-parent adoptions. Respondent charged Ms. Holaday a flat fee of $2,500 for the adoption cases. Ms. Holaday advanced Respondent $1,000 of the retainer fee. Respondent prepared the adoption pleadings, reviewed them with Ms. Holaday, but failed to file the pleadings with the court. Upon discovering the oversight, Ms. Holaday fired Respondent and retained alternate counsel at an additional expense. Respondent offered to complete the adoption for the $1,000 previously paid. Ms. Holaday, however, declined. A year later, Respondent refunded the entire $1,000 retainer. Although a grievance was filed and the OBA inquired into the matter, Respondent never responded.

Tracy Fields Grievance

¶ 17. In July 2008, Tracy Fields hired Respondent to represent him in a criminal matter. Mr. Fields paid Respondent a $3,000 retainer. Mr. Fields stated that he expected Respondent to prevent the District Attorney from filing charges. However, when the District Attorney filed...