State ex rel. Oklahoma Bar Ass'n v. Downes, SCBD 4885.

• Citation: 121 P.3d 1058,2005 OK 33
• Decision Date: 10 May 2005
• Docket Number: No. SCBD 4885.,SCBD 4885.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Sean Patrick DOWNES, Respondent.
• Court: Supreme Court of Oklahoma

Page 1058

121 P.3d 1058

2005 OK 33

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Sean Patrick DOWNES, Respondent.

No. SCBD 4885.

Supreme Court of Oklahoma.

May 10, 2005.

Rehearing Granted and as Modified September 19, 2005.

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE.

¶ 0 Complainant, Oklahoma Bar Association, alleged respondent attorney violated the Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. The parties entered into a stipulation of the facts, but the respondent did not stipulate as to which rules he had violated. After a hearing, the Professional Responsibility Tribunal recommended respondent receive a private reprimand and take classes on office management and ethics.

RESPONDENT SUSPENDED; ORDERED TO PAY COSTS.

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

Carla Mullins Root, Sapulpa, OK, for Respondent.

TAYLOR, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA), alleged four counts of misconduct warranting discipline against respondent attorney, Sean Patrick Downes (Respondent). These proceedings were initiated under rule 6 of the Rules Governing Disciplinary Proceedings (RGDP).¹ The complaint alleged that Respondent had violated Rules 1.1,² 1.3,³ 1.4,⁴ 1.7(b),⁵ 1.8(b),⁶ 1.15,⁷ 1.16(a)(1) and (d),⁸ 2.1,⁹ 3.2,¹⁰ 3.7,¹¹ 8.1(b),¹² and 8.4(a) and (d)¹³ of the Oklahoma Rules of Professional Conduct (ORPC), and Rules 1.3,¹⁴ 1.4,¹⁵ 5.2,¹⁶ and 5.4¹⁷ of the RGDP. At the hearing before the Professional Responsibility Tribunal (PRT), the OBA requested that it be allowed to withdraw its allegations that Respondent violated Rule 1.8(b) of the ORPC and 1.4 of the RGDP.

I. FACTS

¶ 2 The parties stipulated to some of the facts and to a maximum punishment. Additionally the OBA and Respondent offered testimonial and documentary evidence at the hearing. Respondent was admitted to the practice of law in Oklahoma in 1997. At the time of the hearing, Respondent was a solo practitioner.

A. COUNTS I AND II — THE MRS. W. AND MS. MUSCARI MATTERS

¶ 3 About February 18, 2003, Mrs. W. retained Respondent to represent her in a divorce proceeding. Through church activities, Mrs. W. had known Respondent about seven years before hiring him to represent her. Mrs. W. graduated from law school in 1988 but is not licensed to practice law in Oklahoma or any other jurisdiction. On February 19, 2003, Respondent filed a divorce petition on behalf of Mrs. W.

¶ 4 On March 16, 2003, Respondent and Mrs. W. met for dinner at which time they began a romantic relationship. Thereafter, Respondent began a sexual relationship with Mrs. W. which continued during his representation of her. Often Respondent and Mrs. W. conducted their personal relationship, but without physical contact, in front of her minor children who are the subject matter of a custody dispute in the W.'s divorce.

¶ 5 On April 14, 2003, Ms. Muscari, attorney for Mr. W., sent Respondent a second request for admission of facts. Included in this document were requests that Mrs. W. admit that she had an ongoing romantic relationship with Respondent and that she and Respondent were having sexual relations. There were requests for admission of specific encounters between Mrs. W. and Respondent. In the letter accompanying the request for admissions, Ms. Muscari advised she had evidence to substantiate all of the allegations in the request, demanded Respondent withdraw from the case, and demanded substituted counsel conduct Mr. W.'s deposition. Ms. Muscari continued: "I am personally appalled and as you know ethically I am under a duty to report. The OBA and TCBA [Tulsa County Bar Association] have been contacted."

¶ 6 In an April 16, 2003, letter to Ms. Muscari, Respondent refused to withdraw and threatened her with legal action for filing a grievance against him. He wrote: "I caution you that your false reporting of professional misconduct is tantamount to tortious interference with contract and will not be tolerated.... I await receipt of communication from the [OBA] and/or the [TCBA] regarding a report so that I may commence the appropriate civil action against you, your law firm, and if appropriate, Mr. [W.]." During Respondent's representation of Mrs. W., neither of them responded to the request for admissions.

¶ 7 By a letter dated April 23, 2003, Ms. Muscari informed Respondent that she had asked for an in camera status conference to address Respondent's relationship with his client and his continued representation of Mrs. W. In response, Respondent sent Ms. Muscari another letter dated April 25th in which he accused her of making false statements and continuing to interfere with the contract between him and Mrs. W. He also suggested Ms. Muscari had a conflict of interest. In an April 28th letter, Ms. Muscari informed Respondent that he was a witness in the divorce proceeding in as much as he acknowledged in his April 16th letter that he had personal knowledge of the incidents addressed in the request for admissions. The status conference was scheduled for May 5, 2003. Four days before the scheduled conference, Respondent filed a motion to withdraw as counsel and a motion to withdraw the status conference. Both motions were unopposed, and both motions were granted.

¶ 8 The stipulations show that Respondent would testify that in his response letter of April 16th, he was merely trying to caution Ms. Muscari against making false statements to the OBA. He testified at the hearing before the PRT that he was trying only to "rein in" Ms. Muscari's misstatement of the facts.

¶ 9 On September 30, 2003, the OBA notified Respondent that Ms. Muscari had filed a grievance against him. In his response dated October 27, 2003, Respondent alleged that Ms. Muscari had herself possibly violated Rule 1.7 of the ORPC, asserted that his behavior was appropriate and timely, disagreed that he had violated Rule 1.7, and denied the alleged facts in the request for admission. He admitted that he withdrew because parading his and Mrs. W.'s personal lives before the trial court might have prejudiced it against his client. He also stated that after receiving Ms. Muscari's letter, he discussed the matter with Mrs. W., reviewed Rule 1.7, and consulted three practicing attorneys. He later testified that the consensus of the attorneys was that Ms. Muscari did not have standing to raise the conflict of interest issue. At the hearing, Respondent admitted he had not contacted the OBA General Counsel's office for advice or asked for an ethics opinion.

B. COUNT III — THE NEAL GRIEVANCE

¶ 10 About September 24, 2003, Respondent received a $700.00 retainer to handle an adoption matter for Mr. Neal. Respondent expected the costs and fees to be between $1,000.00 and $1,200.00. The $700.00 retainer was for the initial filing fee and service and the "upstart time of putting the package together". Respondent told Mr. Neal that he would need to return to the office to sign some paper work.

¶ 11 The $700.00 was deposited into Respondent's operating account. By the end of October, 2003, the balance in Respondent's operating was only $566.47. Respondent's operating account had a negative balance at least once a month starting at the end of November of 2003 through at least March of 2004.

¶ 12 In November, Respondent telephoned and told Mr. Neal that he would call back later and schedule a time for Mr. Neal to sign some paper work. Thereafter, Mr. Neal telephoned Respondent's office several times and left messages asking that Respondent contact him. However, Respondent did not contact Mr. Neal again. Respondent did not do any work on the adoption matter.

¶ 13 In January, 2004, Mr. Neal filed a grievance against Respondent with the OBA. By a letter dated February 11, 2004, the OBA notified Respondent of Mr. Neal's grievance and informed Respondent that he had twenty days within which to reply. Because he did not reply, the OBA sent a certified letter. On March 19, 2004, Respondent signed for the OBA's certified letter dated March 18, 2004, notifying him of the grievance and requiring him to respond within five days or be subpoenaed to testify.

¶ 14 In his response letter dated March 14, 2004, and received on March 19, 2004, Respondent stated that the Neal file had been erroneously placed on inactive status. He also stated he had no doubt that Mr. Neal had made several attempts to communicate with him and he regretted that Mr. Neal's efforts were unsuccessful and had not been met with the appropriate response by his office. He continued no costs or services were ever billed against the retainer. Respondent voluntarily refunded the $700.00 before the hearing before the PRT.

C. COUNT IV — FAILURE TO RESPOND TO THE SANDERS GRIEVANCE

¶ 15 In September of 2002, Respondent performed some legal work for Leona Sanders and her husband. After Mr. Sanders died, respondent borrowed $10,000.00 from Leona Sanders. After he failed to timely repay the $10,000.00, Leona Sanders filed suit to collect on the note. The docket shows that judgment was entered for Leona Sanders and that the trial court awarded her attorney fees and costs. After the trial court entered judgment for the $10,000.00, it stayed the execution. Respondent satisfied the judgment, and the plaintiff filed a release and satisfaction.

¶ 16 Acting on its own motion, the OBA filed a grievance (Sanders grievance) concerning Respondent's conduct surrounding the loan and the failure to timely repay it. In a letter dated March 25, 2004, the OBA advised Respondent of the Sanders grievance and informed him that he was required to respond within twenty days. Although the letter was not returned to the OBA, Respondent did not respond within the time limit. In a letter dated April 15, 2004, the OBA mailed a certified letter to Respondent advising him to respond within five days or be subpoenaed. Respondent signed the return card on ...