State ex rel. Oklahoma Bar Ass'n v. Berry, SCBD

• Decision Date: 07 July 1998
• Docket Number: No. SCBD,SCBD
• Citation: 1998 OK 73,969 P.2d 975
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Max M. BERRY, Respondent. 4245.
• Court: Oklahoma Supreme Court

Page 975

969 P.2d 975

1998 OK 73

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Max M. BERRY, Respondent.

No. SCBD 4245.

Supreme Court of Oklahoma.

July 7, 1998.

Bar Disciplinary Proceeding.

¶0 Oklahoma Bar Association alleged three counts of misconduct warranting discipline. The Trial Panel of the Professional Responsibility Tribunal found that the Respondent violated certain Rules, did not violate others, and recommended a 45 day suspension. Upon de novo review, we order

RESPONDENT SUSPENDED FOR FOUR MONTHS; COSTS ASSESSED IN THE AMOUNT OF $2,487.76.

Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Attorney for Complainant, Oklahoma City, Oklahoma.

Gary A. Rife, Perry, Rife, Walters, Sullivan & Cain, Oklahoma City, Oklahoma, Attorneys for Respondent.

Kenneth E. Holmes, Ponca City, Oklahoma, Attorney for Respondent.

SUMMERS, V.C.J.

¶1 The Oklahoma Bar Association filed a three-count complaint against Max M. Berry, alleging violations of the Rules of Professional Conduct. A hearing was held in which Berry represented himself. The trial panel agreed that he had violated the Rules on all three counts, and recommended a 45-day suspension. Berry then filed an application to reopen the case to present further evidence as to his mental and emotional state at the time of the incidents. The Bar consented to the reopening, and this Court remanded for an additional hearing. After that hearing the trial panel filed an additional report, affirming its first recommendation.

¶2 In a disciplinary proceeding this Court has original jurisdiction and reviews the record de novo. State ex rel. Oklahoma Bar Association v. Giessmann, 1997 OK 146, 948 P.2d 1227 (Okla.1997). Neither the findings of fact nor the recommendations of discipline made by the Professional Responsibility Tribunal are binding on this Court. Id.; State ex rel. Oklahoma Bar Association v. Holden, 1996 OK 88, 925 P.2d 32, 36 (Okla.1996). With these standards in mind we review the allegations.

COUNT 1

¶3 Respondent represented Pamela Griffith in a divorce action in 1990. he represented her for about six months, during which time he prepared a proposed decree of divorce and filed a temporary order. Pamela discharged him and retained new counsel. Pamela and her husband were divorced in 1991, but remarried in 1993. A second divorce ¶4 The Bar Association alleges that Respondent's conduct violated Rule 1.9(a) and (c) of the Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A. ¹ Rule 1.9(a) states as follows:

action was commenced in 1996, and this time Respondent represented Pamela's husband. Pamela contacted Respondent by letter, telling him that she thought it was inappropriate for him to represent her husband after representing her. Respondent did not obtain her consent. At the disciplinary hearing, Pamela testified that she was concerned because much of the couple's assets were the same. She was also concerned about the custody of her three children which had been an issue in the prior divorce.

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

We find that Respondent violated this Rule. The Comments for Rule 1.9 state that disqualification of an attorney from subsequent representation is for the benefit of the former client. It protects the client's feeling of loyalty owed by the attorney. It can be waived only by the client. While we recognize that approximately six years had passed since Respondent's representation of Pamela, Rule 1.9(a) does not set time limits. It requires consent from the former client. Respondent does not allege that he obtained Pamela's consent to represent her husband, and Pamela testified that she did not give her consent.

Rule 1.9(c) states:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has been generally known; or

(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

A thorough review of the transcript and record does not support a finding of a violation of Rule 1.9(c). The parties stipulated that Respondent did not reveal any information he learned in the course of his representation of Pamela. The client did not state any information that had been divulged as a result of Respondent's representation of her husband. Respondent stated that he had not divulged any client confidences. We find that this allegation of professional misconduct is not supported by clear and convincing evidence. Giessmann, at 1229 (attorney misconduct must be shown by clear and convincing evidence).

COUNT 2

¶5 Jennifer Hankins, twenty years old, filed a petition for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Northern District of Oklahoma. She filed the petition pro se after having someone else complete the bankruptcy form on her behalf. She was not knowledgeable in the law.

¶6 Respondent represented a creditor of Hankins, and filed a collection action against her in Muskogee County District Court. Hankins and Respondent appeared for a hearing at the District Court, and Hankins told the court she had filed for bankruptcy. The court immediately excused the Respondent and Hankins. Respondent, Hankins and Hankins' mother went to a private area of the courthouse, where Respondent proceeded to look over her papers filed in the bankruptcy. He did not at any time explain to Hankins or her mother that he represented a party adverse to her. He told her that her papers were incorrectly completed and that she would be more properly served by filing a Chapter 13 bankruptcy, but did not tell her to seek the advice of independent ¶7 At the hearing the bankruptcy trustee for the Northern District testified that Hankins told him she had hired an attorney. Upon his inquiry she explained how she met Respondent. The trustee became concerned because of the obvious conflict of interest, and because it was clear from Hankins' finances that she would not be able to meet the payments expected under Chapter 13's reorganization plan. The trustee also testified that the papers she filed in the bankruptcy were more than adequate, and better than many filed by attorneys. He also explained that no creditor has the legal right to force the conversion of a Chapter 7 to a Chapter 13 bankruptcy, as the bankruptcy code did not allow this. Hankins was ultimately granted a Chapter 7 bankruptcy which was not disputed by any of her creditors.

counsel. Respondent told her that he could have her bankruptcy converted to a Chapter 13. He continued by telling Hankins that he was the only attorney "in the area" that did Chapter 13 bankruptcies and that he thought he could help her. She sent him $300.00 as a retainer shortly after the meeting. He admits that he represented her.

¶8 Respondent testified that he returned Hankins' money to her. He also testified that he had represented Hankins' creditor for approximately five years, and that he was paid not only a retainer but a percentage of the amount he collected. He did not tell Hankins that it was to his benefit, and not to her benefit, if she were to convert her bankruptcy to a Chapter 13, as it would be more favorable to the creditor. He did not explain to her that he represented an adverse party.

¶9 The Oklahoma Bar Association alleged that these actions violated Rules 1.7, 1.8(b), 4.1(a), 4.3, 7.1, 7.3(a) and 8.4(c). The PRT agreed, finding violations of all but Rule 1.8(b). The PRT further stated that Respondent's actions amounted to a violation of the bankruptcy code's automatic stay provision as it was an attempt to collect a debt.

Rule 1.7(a) states:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

Respondent directly violated this provision. He admits that he did not obtain the consent of both clients. He did not explain the conflict of interest to Hankins. "Loyalty is an essential element in the lawyer's relationship to a client." Comments, Rule 1.7, Rules of Professional Conduct.

¶10 Rule 1.8(b) states that "[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3" Although Respondent threatened to use information he discovered during their discussion against Hankins, this was done prior to her hiring him. Ultimately the information was not used to her detriment. We find no violation of Rule 1.8(b).

¶11 Rule 4.1 requires that an attorney refrain from knowingly making a false statement of "material fact or law to a third person." Respondent practiced bankruptcy law. He was well-versed in its intricacies. Although there was a dispute as to his exact language, the gist of his statement to Hankins was that he could force her to convert her Chapter 7 bankruptcy to a Chapter 13 bankruptcy. According to the bankruptcy trustee, the bankruptcy code does not give a creditor the right to force someone to change from a Chapter 7 to a Chapter 13. The trustee continued by stating that Chapter 13 was unsuitable for Hankins because her income was not sufficient so as to permit her to make payments toward a reorganization...