State ex rel. Oklahoma Bar Ass'n v. Scroggs

• Decision Date: 04 March 2003
• Docket Number: No. O.B.A.D. 1485, No. S.C.B.D. 4602.
• Citation: 2003 OK 21,70 P.3d 821
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. R. Scott SCROGGS, Respondent.
• Court: Oklahoma Supreme Court

70 P.3d 821

2003 OK 21

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. R. Scott SCROGGS, Respondent.

Nos. O.B.A.D. 1485, S.C.B.D. 4602.

Supreme Court of Oklahoma.

March 4, 2003.

Rehearing Dismissed June 9, 2003.

Alan J. Welch, Oklahoma Bar Association, Oklahoma City, for Complainant.

Joseph R. Farris, Feldman, Franden, Woodard & Farris, Tulsa, Oklahoma City, for Respondent.

SUMMERS, J.

¶ 1 The allegations against Respondent relate to four lawyer-client relationships involving Alvin Hall and his wife, Virginia Barnes, Reida Blair, and Mr. and Mrs. Worsham. The Trial Panel concluded that Respondent violated certain rules of professional conduct and recommended a suspension for one year. The Bar Association (Bar) seeks to have Respondent suspended for two years and a day or disbarred.

¶ 2 We exercise an exclusive, original, and nondelegable jurisdiction to regulate the practice of law, and in our de novo review of the trial panel's record the conclusions and recommendations of that panel are neither binding nor persuasive. State ex rel. Oklahoma Bar Association v. Schraeder, 2002 OK 51, ¶ 5, 51 P.3d 570, 573-574. We now review the evidence presented before the Trial Panel, and apply the applicable rule of professional conduct.

I.

¶ 3 Alvin Hall filed a discrimination complaint with the Oklahoma Human Rights Commission. In January 1998 Hall hired Respondent, and paid him $800, including $150.00 for court costs. The $800 was deposited into Respondent's operating account.

¶ 4 The Commission told Hall to provide a letter of representation from his lawyer. Due to Mr. Hall's health his wife communicated with Respondent, and she recorded those conversations. Respondent said that he would represent Hall before the Commission and send it a letter of representation. He did not do this. Respondent said that he would draft a Petition to be filed and mail a copy to Hall. He did not do this either.

¶ 5 Respondent advised that a right-to-sue letter was needed to file suit, and then later that such a letter was not needed. Respondent advised Hall that 180 days must lapse between filing of a Commission complaint and filing a suit in court. In April 1998 Respondent advised Hall that they could proceed. On April 24, 1998, Hall telephoned Respondent's receptionist and stated that he was terminating the lawyer-client relationship, and that he wanted a refund of all monies he had paid. Hall hired a different lawyer who filed the action. The case was subsequently dismissed, and there is nothing in the record to suggest that the dismissal was due to some act of Respondent. Hall filed a complaint with the Tulsa County Bar Association, Respondent was made aware of this complaint and refunded $150 to Hall on April 6, 1999.

¶ 6 Respondent testified that he prepared a petition for filing in the Hall case. However, it was not filed because he was waiting for a 180-day period to expire prior to filing. He testified that his view of when to file the action did not change, but that the words he used when talking to the Halls could have been misunderstood. He was terminated as Hall's lawyer prior to the expiration of the 180-day period.

¶ 7 Respondent further testified that Hall informed his office staff of the termination when he was out of the country, and he was not told of a requested refund at that time. He testified that he heard of Hall's request for a refund after Hall filed a complaint with the Tulsa County Bar Association. Respondent testified that he refunded $150, the amount advanced for filing fees, approximately one year after Hall terminated the lawyer client relationship.

¶ 8 The filing fees were placed in Respondent's operating account instead of a trust account. Respondent admitted that this conduct violated Rule 1.15(b), (c) of Oklahoma's Rules of Professional Conduct.¹

¶ 9 Respondent commingled the filing fees with his own funds and thus violated Rule 1.15(a). See the explanation of commingling in State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, n. 37, 37 P.3d 856, 865. Rule 1.15(b) requires a lawyer to promptly account and refund the client's property when the lawyer client relationship is terminated. State ex rel. Oklahoma Bar Association v. Wilkins, 1995 OK 59, 898 P.2d 147, 151. Although Respondent and his secretary denied that they knew that a refund had been requested prior to the Tulsa County grievance, Respondent knew that he had collected an advance on filing fees, that no action had been filed, and that no action would be filed by him on account of the termination of the lawyer-client relationship. Respondent did not account for the funds when he became no longer the Halls' lawyer, and he thus violated Rule 1.15(b). Rule 1.15(c) requires an attorney to keep separate a client's or third person's funds in which the lawyer also has an interest until a proper accounting and severance of interests can be made, or until any dispute over the quantum of interests in resolved. State ex rel. Oklahoma Bar Association v. Parsons, 2002 OK 72, ¶ 11, 57 P.3d 865, 868. Respondent did not keep the funds separate, and thus violated Rule 1.15(c).

¶ 10 The Trial Panel determined that Respondent made "misrepresentations" to the Halls and thus violated Rule 8.4(c).² The Bar points to Respondent's statements to the Halls that 180 days must elapse between filing with the E.E.O.C./Human Rights Commission and filing suit, and then later telling the Halls that they could proceed without a right-to-sue letter, and then subsequently stating that he was waiting for the 180-day period to end to file suit. One witness called by the Bar was a lawyer who testified concerning right-to-sue letters. He stated that at the time of Respondent's representation of the Halls several courts of different jurisdictions were not consistent on the issue of when a right-to-sue letter was necessary prior to filing suit.

¶ 11 In Rule 8.4 cases we have examined the evidence for an improper motive for the misrepresentation. "A misrepresentation must be shown by clear and convincing evidence that the declarant had an underlying motive (i.e., bad or evil intent) for making the statement." State ex rel. Oklahoma Bar Association v. Johnston, 1993 OK 91, ¶ 16, 863 P.2d 1136, 1143. We have looked at whether a lawyer was attempting to gain some advantage by a misrepresentation. State ex rel. Oklahoma Bar Association v. Berry, 1998 OK 73, ¶ 14, 969 P.2d 975, 980; Matter of McConnel, 1994 OK 107, 886 P.2d 471, 474-475. A lawyer's incorrect opinion on a question of law is not, by itself, a misrepresentation that violates Rule 8.4(c).

¶ 12 These statements of Respondent are not in the nature of misrepresentation, but of Respondent's understanding of a specific area of the law. They relate to the date Respondent would commence the action in relation to his understanding of a rule of law, and the evidence shows that he was ready to file suit when the 180-day period expired, as he understood that rule. These representations are thus not violations of Rule 8.4(c).

¶ 13 Hall said he would send a letter of representation to the Commission. He did not. He knew that he had told the Halls that he would send them a petition. The evidence is not clear and convincing that Respondent's statements were for the purpose of causing the Halls, or others, to act or refrain from acting in some manner that would either benefit Respondent or fulfill some other improper motive. The evidence is insufficient to show a Rule 8.4(c) misrepresentation.

¶ 14 Mrs. Hall testified of difficulty in contacting Respondent by telephone. Respondent testified that after the Halls brought their grievance a new office policy was instituted as a goal for timely responses to telephone calls from clients. The Rules of Professional Conduct require a lawyer to keep a client reasonably informed about the status of a matter, and promptly comply with reasonable requests for information. Rule 1.4(a).³ The record shows Respondent's failure to keep the Halls reasonably informed about the status of the matters they hired him to perform, and Respondent thus violated Rule 1.4(a). ¶ 15 The Trial Panel concluded that Respondent's conduct also violated Rule 1.1, requiring competent representation by a lawyer, and Rule 1.3, requiring a lawyer to act with reasonable diligence and promptness.⁴ Respondent argues that his representation was competent because he was ready to file the action after the 180-day period.

¶ 16 Respondent did not perform his obligation to appear before the Commission, even if solely by letter, and monitor the administrative process. This evidence is sufficient to show that Respondent failed to act with reasonable diligence, promptness, and competence. Respondent thus violated Rules 1.1 and Rule 1.3.

¶ 17 The Bar's evidence is insufficient to show that Respondent acted either incompetently or without reasonable diligence as to filing the action in court. The Bar's position appears to be that Respondent could have filed the action before the 180-day period expired, and because he could have and did not, he acted incompetently. The evidence shows that the action was subsequently filed by a different lawyer.

¶ 18 Respondent articulated a reason for not filing Hall's petition: expiration of the 180-day period. According to the calculation made by the Bar, this period expired on May 5, 1998. Was this delay unreasonable? Respondent's conversations with the Halls were not a model of clarity in explaining the 180-day period, but in April 1998 he stated that he was ready to begin the action.

¶ 19 The Bar argues that delay in filing Hall's lawsuit was not related to the 180-day period, because Respondent stated on April 16, 1998, that that he was ready to file, and this conversation occurred prior to May 5, 1998. But the Bar has not met its burden of showing by clear and convincing evidence that Respondent's timing in not filing the suit was anything more than R...