State ex rel. Oklahoma Bar Association v. Burton, 022321 OKSC, 6846

• Opinion Judge: COMBS, J.
• Party Name: STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. CHARLES ROBERT BURTON, IV, Respondent.
• Attorney: Katherine Ogden, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. Sheila J. Naifeh, Tulsa, Oklahoma, for Respondent.
• Judge Panel: Darby, C.J., Kane, V.C.J., Kauger, Winchester, Edmondson, Combs, Gurich and Rowe, JJ., concur.
• Case Date: February 23, 2021
• Court: Oklahoma Supreme Court

2021 OK 9

STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,

v.

CHARLES ROBERT BURTON, IV, Respondent.

No. 6846

Supreme Court of Oklahoma

February 23, 2021

UNPUBLISHED OPINION

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

Katherine Ogden, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Sheila J. Naifeh, Tulsa, Oklahoma, for Respondent.

COMBS, J.

¶0 The Complainant charged the Respondent with three counts of professional misconduct that included failure to competently represent clients, failure to be diligent in representation of clients, and failure to communicate effectively with clients. In addition, the Complainant charged the Respondent with mishandling of client funds, creating a conflict of interest, failure to withdraw after termination, charging unreasonable fees, misrepresenting facts during the investigation, dishonesty, and failure to timely and adequately respond to the investigation. Having found clear and convincing evidence to support all three counts, the Professional Responsibility Tribunal recommended the Respondent be disbarred. We hold there is clear and convincing evidence that the totality of the Respondent's conduct warrants disbarment. The Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final.

¶1 The Complainant, State of Oklahoma ex rel. Oklahoma Bar Association (Complainant), began proceedings pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, ch. 1, app. 1-A, alleging three separate counts of misconduct against the Respondent, Charles Robert Burton, IV (Respondent), i.e., the Miller Grievance, the Campbell Grievance, and the Studebaker Grievance. The Complainant alleges the Respondent's actions are in violation of multiple rules 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. The Complainant also requests an enhancement of discipline based upon Respondent's October 28, 2016 Private Reprimand by the Oklahoma Bar Association's Professional Responsibility Commission. This matter was assigned to this office on September 3, 2020.

I. Facts and Procedural History

¶2 The Respondent has been a member of the Oklahoma Bar Association (OBA) since 1990. His membership is currently suspended for failure to comply with mandatory continuing legal education (MCLE) requirements and failure to pay bar dues. ¹ Prior to the present proceeding and his suspension, Respondent had a single Private Reprimand in his almost thirty-year career.

¶3 The Complainant filed its Formal Complaint against the Respondent on September 27, 2019. The hearing on the matter was set for November 20th and 21st, 2019. On October 30, 2019, the Respondent filed a Motion for Continuance of the hearing and Motion for Leave to File Out of Time (his Answer). The Motion for Continuance stated that no further continuances will be contemplated or sought. Both were granted on November 6, 2019, and a new hearing date was set for January 29th and 30th, 2020 and the filing of his Answer was extended to November 16, 2019. ² Without further extensions requested, the Respondent untimely filed his Answer on November 21, 2019. The Professional Responsibility Tribunal (PRT) entered a Scheduling Order on December 4, 2019, which required the Respondent to submit a final list of witnesses by December 13, 2019. The Respondent did not comply with this order.

¶4 On January 2, 2020, the Respondent filed a (2nd) Motion for Continuance. The Motion states the Respondent would benefit from a mental health assessment in anticipation of the hearing and that a doctor's appointment was scheduled for January 14, 2020. It also provided that no further continuances will be contemplated or sought. The Complainant's Brief in Chief notes that the Respondent did not complete the mental health assessment. ^[3] On January 14, 2020, the PRT granted a continuance of the hearing until March 18th and 19th, 2020. The order required a final witness list be submitted by January 29, 2020 and a final exhibit list be submitted by February 26, 2020. Without an extension of time, the Respondent untimely filed his final witness list on January 30, 2020.

¶5 On March 16, 2020, Respondent filed a (3rd) Motion for Continuance. ⁴ The motion alleges that the Respondent informed his counsel on Sunday, March 15, 2020, he was ill with a severe upper respiratory infection and may not be well by the March 18, 2020, hearing. ⁵ It further alleged a continuation would be prudent in light of the recent Covid-19 issues. Over the Complainant's opposition, the PRT granted the motion and continued the hearing to May 28th and 29th, 2020.

¶6 On May 28th and after being subpoenaed, ⁶ the Respondent did not appear for the hearing before the PRT in Oklahoma City; the Respondent was in Tulsa, Oklahoma. His counsel stated she received a call from the Respondent that morning at 8:00 a.m., approximately one hour before the hearing was to start, telling her he had gone to "OSU Tulsa...the day before yesterday" and further went to a website concerning Covid-19 and plugged in information. ⁷ He stated public health officials recommend that he be tested for Covid-19. He took the test but did not have the results. When he called her that morning he said he had fatigue and chills. He told her he had to quarantine. His counsel did say that she previously thought that he would be attending the hearing.

¶7 There was a discussion about using electronic applications such as BlueJeans and FaceTime to allow the Respondent to participate. Several recesses were made in the morning to try to accommodate the Respondent. The Respondent's counsel objected to continuing the hearing without her client being present but the Presiding Master noted the only thing we have is a diagnosis of bronchitis and that is not an adequate cause to delay the hearing. ⁸ He stated, "we have been delaying the proceeding to allow him to participate." ⁹ The Assistant General Counsel provided precedent to the PRT which upheld a disciplinary hearing when a respondent failed to appear after being given proper notice. ¹⁰

¶8 The Respondent's counsel was on the phone with the Respondent many times. She indicated at one point he was walking to her law office in Tulsa to use her facilities. He had a cell phone and was sending her pictures of where he was walking. When he got to the law office her employees did not want him to come inside and threw him out because he was coughing so much. ¹¹ When it became clear the PRT was wanting to proceed with the hearing, the Respondent told his counsel he did not want to quarantine and he was going to get a ride, because he does not have a car, and he was going to come to Oklahoma City. This plan turned out to be false and he did not drive down to Oklahoma City. Ultimately, the Respondent was able to attend by electronic video conferencing through BlueJeans and FaceTime. ^[12] On the second day of the proceedings, May 29, 2020, the Respondent appeared in person. The PRT stated in its report, "[n]otably, Respondent did not present testimony or evidence of having been Covid-19 tested or exhibit any of the symptoms of illness during the second day of the hearing." ¹³

¶9 Over the two-day proceeding, twelve witnesses, including the Respondent, testified either in person or via electronic means. The Complainant submitted sixty-two exhibits which were all admitted without objection and the Respondent submitted no exhibits. After the proceeding, the parties submitted proposed findings of fact and conclusions of law. The Respondent recommended a public censure. The Complainant recommended disbarment. The PRT issued its report on June 30, 2020, recommending the Respondent be disbarred.

II. Standard of Review

¶10 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. 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. 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. Analysis

A. Count 1. The Miller Grievance

¶11 Respondent was one of several attorneys representing ten plaintiffs in a class action suit in the United States District Court for the Northern District of Oklahoma, Case No. CIV-12-411. ¹⁴ Jim Miller (Miller) testified he was the elected spokesman for the ten plaintiffs. Eight of the ten plaintiffs (Miller plaintiffs) became concerned with the Respondents actions on the case. Miller testified this included Respondent's procrastination in his work, including last minute filings, and the fact he dismissed some defendants without consulting the plaintiffs or their other attorneys. ¹⁵ Miller noted, one filing was literally made to the federal court just seconds before the midnight deadline and, without the help of one of their other attorneys, it most likely would not have been filed. ¹⁶ After meeting with the other plaintiffs and other counsel, eight of the ten plaintiffs chose to fire the Respondent. ¹⁷ Miller sent the Respondent an...