State ex rel. Oklahoma Bar Ass'n v. Wagener, SCBD 4552.
| Decision Date | 22 January 2002 |
| Docket Number | No. SCBD 4552.,SCBD 4552. |
| Citation | 2002 OK 4,48 P.3d 771 |
| Parties | STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Larry Dean WAGENER, Respondent. |
| Court | Oklahoma Supreme Court |
Loraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
James A. Beckert, Tulsa, OK, for Respondent.
¶ 1 Complainant, Oklahoma Bar Association, brought Rule 6 disciplinary proceedings against Respondent, Larry Dean Wagener,1 in a four count complaint alleging 1) client neglect, 2) failure to adequately respond to the Oklahoma Bar Association, 3) misrepresentation regarding the whereabouts of client property and failure to safe-keep that same property and 4) misrepresenting the facts and circumstances surrounding the disappearance of the property entrusted to Respondent.
¶ 2 Respondent and the bar association submitted joint stipulations regarding each of the allegations, which were incorporated into the report of the Professional Responsibility Tribunal. A hearing was held on January 20, 2001 at which Respondent was the only witness. The Tribunal, in keeping with the recommendations and request of the bar association, determined that there was clear and convincing evidence that Respondent violated Counts I, II, III and IV of the Complaint and recommended Respondent be suspended from the practice of law for a period of thirty (30) days.
¶ 3 We find the evidence establishes clearly and convincingly the allegations in Counts I, II and III of the Complaint; we find the evidence does not support in a clear and convincing fashion the allegations contained in Count IV. For the reasons set out herein, Respondent is suspended from the practice of law for a period of sixty (60) days and ordered to pay the costs of these proceedings in the amount of $891.19 in accordance with Rule 6.16 of the Rules Governing Disciplinary Proceedings, 5 O.S. Ch. 1, App. 1-A (RGDP).
¶ 4 In March 1997, Kenneth Layman retained Respondent to represent him in a criminal matter and a related civil suit, stemming from an alleged assault, battery and trespass which occurred between Layman and an acquaintance. Less than a month later, Respondent filed an action on behalf of Layman in Tulsa County district court. However, the relationship between Layman and Respondent rapidly deteriorated over the course of the next year. Respondent acknowledged that he regularly failed to return Layman's phone calls or communicate with him during this time. Respondent testified that these failures were due at least in part to the fact that Respondent and his legal assistant had grown afraid of Layman, as he would frequently yell and curse at them. In February 1999, Layman filed a grievance with the county bar association alleging Respondent completely neglected his legal matters.
¶ 5 Prior to the filing of Layman's February 1999 grievance, the district court granted Respondent leave to withdraw from Layman's case as attorney of record, at a hearing in October 1998. Respondent did not mail a copy of his motion to withdraw to Layman, although Respondent testified that his legal assistant notified Layman of its setting a week prior to the hearing. Nevertheless, Layman did not attend the hearing on Respondent's motion to withdraw as counsel. Respondent also failed to mail Layman a copy of the order allowing withdrawal, failed to provide him any information that would allow him to protect his own interests and failed to surrender papers and property belonging to his client. Layman's case was dismissed without prejudice in February 1999.
¶ 6 In July 1999, the bar association subpoenaed Respondent for his deposition in the Layman matter. The bar directed Respondent to contact Layman in writing and advise him of his withdrawal, the status of the case, the statutory time limit in which to refile the case and to make arrangements to return the client's file. Respondent complied with this directive within two days of the deposition. The notice provided Layman the opportunity to refile his previously dismissed case.
¶ 7 Respondent stipulated and the Tribunal found Respondent's conduct violated the Rules of Professional Conduct, 5 O.S.1991 Ch.1, App. 3-A (RPC), Rules 1.1 (), 1.2 (failing to consult with his client concerning the objectives of representation), 1.3 (diligent representation), 1.4 (communicating with the client), 1.16 (proper withdrawal from representation), 8.4(a) (). The record supports the stipulations with regard to the Layman matter and we find Respondent clearly and convincingly violated these provisions of the RPC.
¶ 8 The Oklahoma Bar Association notified Respondent on April 27, 1999 that the Layman matter was under formal investigation and a response was due within twenty days. After the twenty days elapsed, Respondent requested an extension of time to respond, which was granted until June 8, 1999. Respondent missed this deadline and did not request or receive any further extensions. Respondent then ignored a call from a bar association investigator and failed to respond to yet another certified letter, eventually necessitating the issuance of a subpoena for his deposition in July 1999.
¶ 9 Respondent stipulated and the Tribunal found that his conduct with regard to Count II of the Complaint clearly and convincingly violated Rule 8.1(b) of the RPC (knowing failure to respond to a lawful demand for information from the bar association) and Rule 5.2 of the RGDP (failure to respond within twenty days to grievance). The record supports the stipulations with regard to Respondent's failure to respond adequately to the Layman bar matter and we find Respondent clearly and convincingly violated these provisions of the RPC and RGDP.
¶ 10 In May 1995, Howard Eugene Campbell's estranged girlfriend, Sandra Byrd, contacted Respondent to represent her in a claim against Mr. Campbell for breach of contract and intentional infliction of emotional distress. Respondent filed a suit on Ms. Byrd's behalf and Mr. Campbell was served with a copy of the Petition the next day.
¶ 11 Soon thereafter, Ms. Byrd brought two locked briefcases to Respondent's office. Ms. Byrd informed Respondent that Mr. Campbell told her the briefcases contained cash, jewelry and other valuables in excess of $88,000. Ms. Byrd claimed that $8,000 of the money was hers and had been taken from her by her estranged boyfriend, Campbell, and put in the briefcases. She believed the remainder of the contents belonged to Mr. Campbell. Respondent testified that the briefcases were so light, it was difficult to believe they contained anything of substantial value, however, he agreed to have the cases x-rayed in an effort to determine the nature of the contents. He then took possession of the briefcases.
¶ 12 Within days, while the briefcases were still in Respondent's possession, Ms. Byrd and Mr. Campbell apparently reconciled and returned to Respondent's office to demand the return of the briefcases. Respondent informed them that the briefcases were not in his possession and he would have to return them later. Respondent acknowledged at the hearing that this was not the truth. Respondent explained that he withheld the briefcases because he believed Mr. Campbell was forcing Ms. Byrd to abandon her suit and retrieve the briefcases.
¶ 13 Then on June 2, 1995, Respondent's truck was stolen while parked near the Tulsa County courthouse; Mr. Campbell's briefcases were inside.
¶ 14 Mr. Campbell filed suit against Respondent to recover the value of the contents of the lost briefcases. Respondent paid Mr. Campbell approximately $35,000 to settle the suit. Much of the pre-trial discovery which took place in Campbell's suit against Respondent was included for review in this disciplinary proceeding record. The record does not support or suggest that Respondent converted any funds or valuables in the briefcases for his own use.
¶ 15 The bar association presented clear and convincing evidence that Respondent was not candid and honest with his client, Ms. Byrd, nor Mr. Campbell, the owner of the briefcases, when he told them he could not immediately return the briefcases. In addition, the bar association presented clear and convincing evidence showing that Respondent failed to properly safeguard the briefcases placed in his care and they were stolen as a result.
¶ 16 Respondent stipulated and the Tribunal found that Respondent's conduct clearly and convincingly violated Rules 1.2 (), 1.15(a) (), 1.15(b) (), 1.15(c) (), 8.4(a) (violating the RPC) and 8.4(c) () of the RPC. With the exception of Rule 1.15(c) of the RPC, the record supports the stipulations that Respondent clearly and convincingly violated these provisions of the RPC.
¶ 17 With regard to the alleged violation of Rule 1.15(c), the record does not clearly and convincingly show Respondent claimed any interest in the briefcases or their contents, as required by this provision. Accordingly, this provision does not provide a basis for discipline in this case.
¶ 18 The bar association alleges that discrepancies between a 1996 deposition given by Respondent in the Campbell suit and a February 2000 interview of Respondent conducted by a bar association investigator amounted to intentional misrepresentation to the bar by Responde...
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