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

• Decision Date: 06 December 1988
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Duane LOBAUGH, Respondent. S.C.B.D. 3461.
• Court: Oklahoma Supreme Court

Page 806

781 P.2d 806

1988 OK 144

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Duane LOBAUGH, Respondent.

S.C.B.D. 3461.

Supreme Court of Oklahoma.

Dec. 6, 1988.

Bar Discipline Proceeding.

Complainant alleged two counts of misconduct warranting discipline in its initial complaint against the respondent. The Trial Panel found that the evidence was insufficient to support a finding of commingling of funds, and that the respondent was guilty of misrepresentation, inadequate preparation, neglect of a legal matter, attempt to limit liability for malpractice and failure to represent the client zealously. The Trial Panel recommended suspension for one year effective on February 26, 1988. We find that due process requires an opportunity to be heard before a lawyer can be disbarred or permanently suspended from the practice of law. However, because the lawyer did not dispute that he failed to communicate with his client thereby neglecting the case, a public censure is warranted.

PUBLIC CENSURE.

Gloria Miller White, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Duane Lobaugh, Oklahoma City, pro se.

KAUGER, Justice.

We are presented with a question of first impression: whether the trial panel of the Professional Responsibility Commission may, in the absence of the lawyer who has been accused of violations of the Code of Professional Responsibility, conduct disciplinary proceedings and impose discipline when the lawyer appears before the proceedings are concluded and moves to reopen the hearing. We find that it may not. However, because the lawyer did not dispute that he failed to communicate with his client thereby neglecting the case, a public censure is warranted.

The Oklahoma Bar Association, (complainant), instituted disciplinary proceedings against the respondent, Duane Lobaugh, (respondent/lawyer), after receiving a written complaint from one of his clients. The complaint alleged that the lawyer co-mingled funds, made misrepresentations to a client, neglected and inadequately prepared a legal matter, and failed to zealously represent his client all in violation of the Rules of Governing Disciplinary Proceedings, 5 O.S.1981 Ch. 1, App. 3, DR 1-102(A)(4), DR 6-101(A)(2), DR 6-102(A), DR 7-101(A)(1), (2), (3), and 5 O.S.Supp.1983 Ch. 1, App. 3, DR 9-102(A). ¹

FACTS

In May, 1982, Freddy Greer, (client), paid the lawyer $250.00 to file a lawsuit against a local car dealer. According to the client, the lawyer, over the next five years, repeatedly misrepresented to the client and the client's family that a case had been filed and that a settlement offer had been received and rejected. However, the suit was never filed, and the statute of limitations was allowed to run.

The Bar mailed a letter to the lawyer on April 1, 1987, informing him that pursuant to Rule 5.2 ² he had twenty days to respond to the allegations. When no response was received, a certified letter was sent on April 21, 1987, giving the lawyer five days to respond. On April 27, 1987, the lawyer called the investigator for the bar. He told the investigator that he had not received the first letter, and that he could not adequately respond to the complaint because he could not find the file. On June 4, 1987, the lawyer wrote a letter to the Bar stating that he had been unable to find the file, but that he was attempting to resolve the complaint with the client.

The matter was first set for hearing on December 21, 1987, and subsequently rescheduled to January 7, 1988. It snowed on the 7th, and the case was continued until January 14, 1988. Because the lawyer had a conflicting court appearance on the 14th, he asked that the matter be continued. The hearing was set for January 25, 1988. After changing a tire in extremely cold weather, the lawyer was hospitalized with chest pain on January 14. On the 25th, the lawyer moved for a continuance because of his physical and mental inability either to proceed with the hearing or to defend himself. He alleged that this was so because he had been hospitalized until January 20 for chest pain of cardiac origin, high blood sugar, and high blood pressure. He stated that he had been unable to walk, and that at the time of the scheduled hearing, he had a sore throat, a nauseaous headache, and tightness in his chest; and further, that because of his ill health, he had been unable to prepare for the hearing. The lawyer stated that at the time he entered the hospital his blood pressure was 245/145 mm. Hg., that his blood sugar was approximately 595 mg., and that his blood sugar was currently 200 mg.--still out of control. The lawyer also asserted that he did not receive notice of the January 25 hearing.

The presiding master acknowledged that the lawyer had recently been released from the hospital, that he had been advised by his doctor to avoid stressful situations for a few days, and that he was "not in totally good health even as we meet here today." The master also noted that an order had issued continuing the hearing. Two of the three member of the tribunal acknowledged receipt of the notice--one was not sure, but he knew to be at the meeting. After an off-the-record discussion, the tribunal members "reluctantly agreed" to grant the motion for continuance, orally reset the hearing on February 26, 1988, at 11:00 a.m., and advised the lawyer to obtain counsel. However, the continuance was conditioned upon the lawyer obtaining, prior to the hearing date, a report from the lawyer's doctor concerning his mental and physical fitness to practice law and a similar report from an examining physician chosen by the Bar. The lawyer's doctor's report confirmed the lawyer's hospital stay for high blood pressure and high blood sugar. The doctor selected by the Bar conducted a psychiatric evaluation of the lawyer and found nothing significantly wrong.

At 11:00 a.m. on February 26th, the Bar was present and announced ready. When the lawyer failed to appear, the members of the Trial Panel unanimously agreed to proceed with the hearing and in effect entered a default judgment. After the evidence was concluded, but before the trial panel rendered its decision, the lawyer appeared. He contended that he thought that the hearing was set for 1:00 p.m. instead of 11:00 a.m., and he asked that the proceedings be reopened. His application to reopen the proceedings was denied. Although no formal notice was sent, the transcript from the January 25, 1988, proceeding confirmed that the hearing had been set for 11:00 a.m.

The Trial Panel's findings of facts were that:

1. In May of 1982, Freddy Greer paid the lawyer $250.00 to file a lawsuit concerning an allegedly defective used car purchased by Greer from a dealer. The money was deposited in the lawyer's person checking account. The Bar claims that the payment was a retainer and should have been deposited in the lawyer's trust account.

2. The lawyer misrepresented to his client and others that the case had been filed and an offer of settlement received and rejected when, in fact, no case was ever filed, and the statute of limitations was allowed to run on the action.

3. The lawyer failed to cooperate with the Bar in its duty to investigate the grievance by failing to respond timely to its request for information.

4. During the investigation of the grievance, the lawyer reported that he could not locate his work file when, with minimal effort, Bar investigators and the lawyer discovered the file located with other of the lawyer's legal files.

5. The lawyer refunded the $250.00 fee after seeking a release from the client and withdrawal of the grievance in exchange for the refund.

The lawyer's position, based on his deposition testimony which was admitted into evidence pursuant to 12 O.S.1981 § 2801(4)(b)(1), the transcript of the proceedings, and as contained in the statement of facts in his brief is, as follows:

1. After Greer purchased a car with a defective speedometer, he hired the lawyer to do some research on potential lawsuit against a car dealer. After spending 10-15 hours of research he concluded that the lawsuit would not be worth the effort because Greer was over twenty-one, that he could see the paint peeling off the car, that the speedometer was not set back, and that it was broken. Greer had an opportunity to drive the car and he could see that the speedometer was not working.

2. The lawyer had moved his office three times. His explanation for not responding to the first letter from the Bar was that a temporary employee must have placed it in the wrong file.

3. On July 22, 1987, the Bar sent two investigators to the lawyer's office to serve a subpoena to take his deposition. While there, peering through levelor blinds, the investigators observed what appeared to be the missing file in a storage room. When the lawyer examined it, he discovered that it was. (The lawyer contends that it would be virtually impossible without prior knowledge to see a file tab three or four feet away through levelor blinds. He believes that the file could be considered tainted evidence.)

4. There was an offer to settle the case, but Greer turned it down. (Greer's testimony was that the lawyer told him he had refused the offer.)

5. There was no fraud on the part of the car dealer either in misrepresenting the car or setting the speedometer back, the lawyer feared that the case would have been considered frivolous by the court, and that sanctions would have been imposed.

6. One of the investigators for the Bar advised the lawyer to contact Greer concerning his complaint. When he did so, Greer told the respondent that all he wanted was his money returned. Without getting into an argument concerning whether the fee had been earned, it was refunded. Greer executed a release and request for the Bar to dismiss the complaint. The lawyer was not aware that this action would be used against him.

7. Greer testified that: he did not believe that he needed...