State ex rel. Oklahoma Bar Ass'n v. Doris, SCBD No. 4400.

• Decision Date: 07 December 1999
• Docket Number: SCBD No. 4400.
• Citation: 991 P.2d 1015,1999 OK 94
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel DORIS, Respondent.
• Court: Oklahoma Supreme Court

991 P.2d 1015

1999 OK 94

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel DORIS, Respondent.

SCBD No. 4400.

Supreme Court of Oklahoma.

December 7, 1999.

As Corrected December 20, 1999.

Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for Complainant.

No appearance by Respondent.

LAVENDER, J.

¶ 1 Complainant, the Oklahoma Bar Association brought disciplinary proceedings against respondent, Daniel Doris, under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991, Ch. 1, App. 1-A, as amended. A Professional Responsibility Tribunal trial panel found violations of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.1991, Ch. 1, App. 3-A, as amended, and recommends disbarment. After de novo review, we find respondent guilty of numerous acts of misconduct and the appropriate discipline is disbarment. We also hold respondent should pay the costs of these proceedings.¹

PART I. STANDARD OF REVIEW.

¶ 2 The standard of review in attorney disciplinary proceedings is as follows:

In attorney disciplinary proceedings this Court's determinations are made de novo. The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with us in the exercise of our exclusive original jurisdiction in bar disciplinary matters. Accordingly, neither the findings of fact of a Professional Responsibility Tribunal (PRT) nor its view of the evidence or credibility of witnesses are binding on us and [its] recommendations. . . are merely advisory. (citations omitted)

State ex rel. Oklahoma Bar Ass'n v. Todd, 1992 OK 81, 833 P.2d 260, 262.²

¶ 3 The de novo review standard involves a full-scale exploration of all relevant facts. State ex rel. Oklahoma Bar Ass'n v. Carpenter, 1993 OK 86, 863 P.2d 1123, 1128. As such, it requires a complete record be made before the trial panel — a record sufficient for an examination of all pertinent issues, a thorough inquiry into all essential facts, and the crafting of appropriate discipline. Id. at 1128-1129. The record presented is adequate for the required de novo review.

PART II. FACTS AND PROCEDURAL BACKGROUND.

¶ 4 At the time of the trial panel hearing in June 1999 respondent was an attorney licensed to practice law in Oklahoma and he was subject to this Court's jurisdiction. Five counts of misconduct were lodged: counts I-II by complaint filed in November 1998; counts III-IV by amended complaint filed in December 1998; and count V by second amended complaint filed in March 1999. Discipline enhancement was sought because in May 1995 respondent was privately reprimanded by the Professional Responsibility Commission for misconduct arising out of his failure to appear at a scheduled court hearing. The record shows the complaint, amended complaint and second amended complaint were furnished to and received by respondent.

¶ 5 Respondent filed a response to the complaint in December 1998. It stipulated to the allegations of count I, admitted some allegations of count II, claimed insufficient information to either admit or deny other allegations of count II, and denied other allegations of that count. No formal written answer or response was filed to the amended or second amended complaints, which both re-adopted and re-alleged counts I-II of the complaint.

¶ 6 The record includes the transcript of the June 1999 trial panel hearing, at which eight witnesses testified and over 130 exhibits were admitted.³ It also includes the pleadings, trial panel orders filed, and the panel's written report and a correction thereto. As will be seen, respondent was partly uncooperative during the investigative stage of this matter and, even though he had adequate notice of the June hearing, he failed to attend it. The record also shows that on the morning of the hearing the panel's presiding master tried to contact respondent by telephone at his then current residence (apparently his sister's home) and was informed (apparently by his sister) that he was at work at K-Mart.

¶ 7 Respondent also failed to submit a response brief to complainant's brief filed in this Court in July 1999. He further has a history of alcohol-related problems, which we find, he failed to fully recognize or control, even after three convictions (two misdemeanors and a felony) for driving under the influence of alcohol, four other arrests for alcohol-related offenses while in control of a motor vehicle, and even after the present charges had been initiated.

¶ 8 An investigator for complainant that handled much of the investigation in regard to this matter also testified at the June 1999 hearing that respondent told him at some point during the investigation that he, respondent, no longer wanted to practice law and he no longer had an interest in it. Respondent also told the investigator, however, he was not going to resign from membership in the Oklahoma Bar Association because he did not want his name to appear in the Oklahoma Bar Journal as having resigned — that if complainant wanted his license to practice law, complainant was going to have to take it.

¶ 9 Prior to the trial panel hearing, complainant filed a motion to deem all allegations of the complaint, and the amended and second amended complaints admitted, or alternatively, to deem the allegations in the latter two pleadings admitted by respondent. Respondent did not respond to the motion. The motion's basis was that respondent had failed to answer or respond to the amended or second amended complaints and, although he did submit a formal written response to the complaint, it was filed out of time without his seeking permission to so submit it. The motion was anchored on Rule 6.4, RGDP, 5 O.S.1991, Ch. 1, App. 1-A, which provides:

The respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respondent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed.

The trial panel sustained the motion, ruling all allegations of the complaint, amended and second amended complaints to be deemed admitted by respondent.

¶ 10 In that respondent's December 1998 response stipulated to count I's allegations, and most of the substantial allegations of counts I-II were proved by clear and convincing evidence in any event, we need not decide the propriety of sustaining the motion in regard to the complaint. Plainly, however, it was properly granted as to counts III-V because respondent did not submit a formal response to the amended or second amended complaints. State ex rel. Oklahoma Bar Ass'n v. McCoy, 1996 OK 27, 912 P.2d 856, 860. Finally, even as to counts III-V, the proof at the hearing showed multiple instances of misconduct, including misappropriation or theft of client funds by conversion (count V), misconduct warranting disbarment.

¶ 11 Summarized, the record in this matter shows respondent in violation of the following: Rules 1.3 (acts contrary to prescribed standards of conduct)⁴; 1.4 (trust account dereliction, mishandling of client funds and intentional misappropriation of client funds)⁵; and 5.2 (non-responsiveness in disciplinary process)⁶ of the RGDP. He also violated the following provisions of the ORPC: Rules 1.1 (failing to provide competent representation to a client)⁷; 1.3 (failure to act with reasonable diligence and promptness in representing a client)⁸; 1.4 (client-communication lapses)⁹; 1.15 (mishandling and record-keeping lapses in regard to client funds)¹⁰; 3.2 (failure to make reasonable efforts to expedite litigation)¹¹; 3.5(d) (engaging in conduct intended to disrupt a tribunal)¹²; 4.4 (engaging in conduct, while representing a client, having no substantial purpose, except to delay or burden a third person)¹³; 8.1(b) (in connection with a disciplinary matter, failing to disclose a fact necessary to correct a misapprehension known to have arisen in the matter or knowing failure to properly respond to disciplinary authority demand for information)¹⁴; 8.4(a) (violating or attempting to violate the ORPC); 8.4(b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects); 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice).¹⁵

PART II(A). COMPLAINT — COUNT I.

¶ 12 Count I concerns respondent's representation of David Herndon in a forged instrument/check dispute with the Bank of Oklahoma (BOK). In December 1996 he filed suit against BOK in Tulsa County on Herndon's behalf in relation to the dispute. Thereafter, he called Herndon with a BOK settlement offer of $1,500.00, which Herndon agreed to accept. A dismissal with prejudice, signed by respondent, was filed in the case in April 1997. Around this same time period respondent told Herndon, "it could be awhile" before Herndon got paid.

¶ 13 Although there is no direct evidence respondent received the settlement check from BOK in April 1997, the circumstantial evidence, primarily the filing of the dismissal with prejudice, leads to the conclusion a check in such amount was received by him on Herndon's behalf about such time. Further, respondent stated to an investigator for complainant that he cashed the settlement check and kept the proceeds for a lengthy period of time in his desk, although the record does not show exactly when the check was cashed by respondent.

¶ 14 The record also shows respondent did not maintain a trust account for client funds during the relevant time period and that Herndon was not paid the $1,500.00 until June 1998, i.e. over a year after the dismissal with prejudice was filed and only after Herndon...