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

• Decision Date: 06 November 2012
• Docket Number: , SCBD No. 5805.,OBAD No. 1884
• Citation: 290 P.3d 747
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Christian Rollow HAAVE, Respondent.
• Court: Oklahoma Supreme Court

290 P.3d 747

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

v.Christian Rollow HAAVE, Respondent.

OBAD No. 1884, SCBD No. 5805.

Supreme Court of Oklahoma.

Nov. 6, 2012.

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

¶ 0 Complainant Bar Association brought this disciplinary proceeding against Respondent attorney pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch.1, App. 1–A. This action followed the General Counsel's investigation of the written grievances filed by three former clients alleging that Respondent failed to complete the matters for which Respondent had been paid. Respondent did not file a response to these grievances and did not appear at a hearing before a panel of the Professional Responsibility Tribunal (PRT). The PRT determined that Respondent violated Rules 1.3 and 5.2, RGDP, 5 O.S.2011, Ch.1, App. 1–A, and Rules 1.3, 1.4, 1.5, 3.2, and 8.4(d), Rules of Professional Conduct (RPC), 5 O.S.2011, Ch. 1, App. 3–A. The PRT recommend that Respondent be suspended for two years and a day. Complainant Bar Association concurs with this recommendation. Respondent did not enter an appearance before this Court or offer any response to the recommended discipline. Upon de novo review, we determine suspension for two years is the appropriate discipline.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS; COSTS IMPOSED.

Gina Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant,

No appearance by Respondent.

REIF, J.:

¶ 1 On September 30, 2011, the Oklahoma Bar Association, acting through the Chairman of the Professional Responsibility Commission and the General Counsel, filed a complaint with the Office of the Chief Justice against Respondent attorney Christian Rollow Haave. The complaint sought discipline of Respondent for alleged professional misconduct, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2001, Ch. 1, App. 1–A. The complaint alleged that Respondent failed to complete legal services on behalf of three clients who hired and paid Respondent to perform such services. The complaint also related that the Complainant met with Respondent to discuss the client grievances and agreed to allow Respondent additional time to file written responses to the grievances. The complaint reports that Respondent did not file a written response within the agreed time nor at any other time, and that Respondent did not respond to written and telephonic attempts to contact her. The complaint asserted that Respondent violated Rules 1.3 and 5.2, RGDP, 5 O.S.2011, Ch. 1, App. 1–A, and Rules 1.3, 1.4, 1.5, 3.2 and 8.4(b), Rules of Professional Conduct (RPC), 5 O.S.2011, Ch. 1, App. 3–A. The complaint asked this Court to impose discipline for such misconduct as the Court may find equitable and proper.

¶ 2 On November 11, 2011, a panel of the Professional Responsibility Tribunal (PRT) held a hearing concerning the allegations in the complaint. Respondent did not appear before the PRT. The General Counsel advised the PRT that attempted service of the complaint upon Respondent by certified mail and process server had been unsuccessful, but that the complaint and notice of the hearing before the PRT were sent by regular mail to Respondent's official bar association roster address and such mailings had not been returned. The General Counsel further advised the PRT that Respondent had not filed a response to either the complaint or the client grievances. In response to both a written motion and oral request by the General Counsel, the PRT ruled that the allegations set forth in the complaint were deemed admitted as provided in Rule 6.4 RGDP.

¶ 3 The allegations of misconduct that were deemed admitted pertained to three instances of client abandonment. The first instance of abandonment was set forth in Count I of the complaint. This count related that Respondent failed to inform client Sheila Kay Ferguson that Respondent had obtained a continuance of the hearing for Ferguson's appointment as guardian of her handicapped adult daughter. Unaware of the continuance, Ferguson appeared alone and the court granted her a temporary guardianship to take care of the daughter's emergency medical needs. Respondent has never informed Ferguson of a reason for obtaining the continuanceor for discontinuing her representation of Ferguson. Respondent did not return the unearned portion of the $1000 fee and Ferguson completed the guardianship through the services of another attorney at additional expense.

¶ 4 The second instance of client abandonment was set forth in Count II of the complaint. This count related that Respondent failed to complete a divorce for client Shanna Roberts after a settlement of the issues in the divorce was reached between the parties. Respondent obtained Roberts' signature to a divorce decree, but did not transmit the decree to opposing counsel. Respondent never gave Roberts a reason for failing to provide the decree to opposing counsel or for discontinuing her representation of Roberts. Respondent did not return the unearned portion of the $2500 fee and Roberts completed the divorce through the services of another attorney at additional expense.

¶ 5 The third instance of client abandonment was set forth in Count III of the complaint. This count related that Respondent failed to do any work for client Devin Seay Love after accepting a $400 fee to represent him in a child custody matter. Respondent did not communicate further with him and did not return the fee.

¶ 6 In addition to the deemed admitted allegations, the PRT admitted 48 exhibits offered by the General Counsel and heard testimony from the investigator who attempted to work with Respondent to resolve the client grievances. The investigator related that her communication with Respondent was limited to one face-to-face meeting and a few emails, despite repeated efforts to contact Respondent by phone, mail and home visits. The investigator told the PRT that Respondent never denied or contested the allegations in the client grievances, and explained her failure to fulfill her commitments to her clients was due to her illness and the illness and misfortunes of her parents. The investigator reported that Respondent did not provide medical records or any other documentation to support this explanation. In spite of the Respondent's failure to respond or appear, the General Counsel did urge the PRT to consider the fact that Respondent had not been disciplined before as a mitigating factor.

¶ 7 Following the hearing, the PRT issued its report, finding that the allegations in the complaint had been proven by clear and convincing evidence. The PRT concluded that Respondent's actions and omissions in the representation of the three complaining clients violated Rules 1.3, 1.4, 1.5, 3.2, and 8.4(d), RPC, and Rules 1.3 and 5.2, RGDP, and such violations constituted professional misconduct. The PRT recommended suspension for two years and a day.

¶ 8 In reaching this recommendation, the PRT took the following mitigating circumstances into account: (1) the absence of prior discipline, complaints or grievances, (2) the fact that Respondent took responsibility for her conduct, (3) her claim of illness that caused her fatigue, exhaustion and depression, (4) the investigator's description of Respondent's demeanor as “down” and “look [ing] like she was going through some things,” and (5) the legal work that Respondent failed to perform was completed by other counsel and/or courts with no resulting irreparable harm. To determine the proper weight to be given such mitigating factors, the PRT considered discipline imposed in prior cases with similar facts and circumstances. Noting that both disbarment and suspension had been imposed in prior similar cases, the PRT felt that disbarment would be too severe discipline in the absence of irreparable harm to the clients.

¶ 9 On the other hand the PRT did not believe the mitigating factors were sufficient to deviate from discipline of suspension. The PRT explained that Respondent is not currently fit to practice law in light of the conduct and circumstances disclosed in the record and is likely to repeat her improper behaviors without intervention. The PRT specially noted that Respondent failed to respond to the complaint, did not appear at trial and did not seek to be heard on any issue. The PRT concluded such actions demonstrate that Respondent is not sufficiently concerned or interested in maintaining or defending her status as a member of the Oklahoma Bar Association.

¶ 10 In its brief to this Court, the Oklahoma Bar Association argues that suspension of two years and a day is the appropriate discipline for Respondent's professional misconduct. In support of such discipline, the General Counsel cites State ex rel. Oklahoma Bar Association v. Whitebook, 2010 OK 72, 242 P.3d 517, and State ex rel. Oklahoma Bar Association v. Phillips, 1990 OK 4, 786 P.2d 1242. The General Counsel points out that this Court imposed suspension of two years and a day in these cases for similar instances of professional misconduct under comparable facts and circumstances.

¶ 11 In disciplinary proceedings, this Court acts as a licensing court in exercise of our exclusive jurisdiction. State of Oklahoma ex rel. Oklahoma Bar Association v. Wilburn, 2006 OK 50, ¶ 3, 142 P.3d 420, 422. We have a constitutional, nondelegable responsibility to decide whether misconduct has occurred and what discipline is appropriate. Id. We exercise this responsibility, not for the purpose of punishing an attorney, but to assess his or her continued fitness to practice law, and to safeguard the interests of the public, the courts and the legal profession. Id. Our review of the record is de novo in which we conduct a nondeferential, full-scale examination of all relevant facts. Id.

¶ 12 In discharging our responsibility to conduct a full-scale...