State ex rel. Oklahoma Bar Ass'n v. Beasley, SCBD No. 5085.

• Decision Date: 27 June 2006
• Docket Number: SCBD No. 5085.
• Citation: 2006 OK 49,142 P.3d 410
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry Knight BEASLEY, Respondent.
• Court: Oklahoma Supreme Court

142 P.3d 410

2006 OK 49

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry Knight BEASLEY, Respondent.

SCBD No. 5085.

Supreme Court of Oklahoma.

June 27, 2006.

Rule 6 Bar Disciplinary Proceeding.

¶ 0 The Oklahoma Bar Association filed a complaint and amended complaint against Barry Knight Beasley alleging multiple violations of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A, and the Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A. A panel of the Professional Responsibility Tribunal determined that respondent violated the Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings, recommended respondent be suspended from the practice of law for two years and one day and be assessed costs of the investigative and disciplinary proceedings and specified preconditions to reinstatement. Upon our de novo review, we find respondent's professional misconduct is established by clear and convincing evidence, and we conclude the recommended discipline is appropriate.

RESPONDENT'S LICENSE SUSPENDED FOR TWO YEARS AND ONE DAY FROM THE DATE THIS OPINION BECOMES FINAL; RESPONDENT ORDERED TO PAY COSTS WITHIN NINETY

DAYS FROM THE DATE THIS OPINION BECOMES FINAL.

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

Everett R. Bennett, Jr., Fraiser, Fraiser & Hickman, LLP, Tulsa, OK, for respondent.

TAYLOR, J.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), filed a complaint on July 12, 2005, and an amended complaint on September 26, 2005, against respondent, Barry Knight Beasley (Beasley), alleging multiple violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, ch. 1, app. 3-A, and the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, ch. 1, app. 1-A. Upon an evidentiary hearing, a trial panel of the Professional Responsibility Tribunal of the Oklahoma Bar Association (PRT) found that Beasley violated the ORPC and the RGDP and recommended that Beasley's license to practice law be suspended for two years and one day, that he be ordered to pay costs and that preconditions for reinstatement be imposed. Upon our de novo review, we conclude the appropriate discipline is suspension of Beasley's license to practice law for a period of two years and one day. We impose preconditions to reinstatement and order the payment of costs.

I. Background

¶ 2 Barry Knight Beasley, OBA # 11220, has practiced law in the Tulsa area since he graduated from the University of Tulsa Law School, was licensed by this Court and admitted to membership in the Bar Association in 1985. In November, 2004, the Bar Association received the first of the six grievances involved in this proceeding. The grievances, in general, are that Beasley did not perform the legal services for which he was paid, failed to communicate with his clients and failed to refund unearned fees. The time period involved in the grievances spanned from December 14, 2002 to May 11, 2005. Upon receipt of each of the grievances, the Bar Association opened a formal investigation and mailed notice to Beasley. Time after time, Beasley failed to respond to the grievances or to otherwise cooperate with the Bar Association's investigations.¹

¶ 3 On July 12, 2005, the Bar Association filed a Rule 6 complaint alleging five counts of professional misconduct in violation of the ORPC and the RGDP. The Bar Association mailed the complaint to Beasley by certified mail, return receipt requested. It was unclaimed and returned to the Bar Association. On September 26, 2005, the Bar Association filed a one-count amended complaint. It was mailed to Beasley by certified mail, return receipt requested, and Paula Beasley accepted delivery. Beasley did not file an answer.

¶ 4 In December, 2005, Everett R. Bennett, Jr., advised the Bar Association that he was authorized to accept service of process on Beasley's behalf. On December 19, 2005, copies of the complaint, amended complaint and other filings in this Rule 6 proceeding were served on Bennett.² After this service of process, Beasley did not file an answer to the complaint or amended complaint.

¶ 5 On January 12, 2006, the Bar Association filed a motion to deem allegations admitted pursuant to RGDP, Rule 6.4 and a motion to set a hearing. The PRT set a hearing for February 6, 2006.

¶ 6 Beasley and his attorney, Everett R. Bennett, Jr., appeared at the scheduled hearing before the PRT. Mr. Bennett expressly did not oppose the motion to deem allegations admitted and stipulated that the allegations were admitted. Beasley also expressly confessed the motion. The Bar Association's exhibits were admitted into the record without objection. Beasley submitted to questioning, and the attorneys for the complainant and the respondent made statements on the record.

¶ 7 The Bar Association recommended to the PRT that Beasley's license to practice law should be suspended for two years and one day. The PRT recommended that Beasley be suspended from the practice of law for two years and a day and ordered to pay costs of the investigative and disciplinary proceedings and that he be required to contract with Lawyers Helping Lawyers and reimburse the unearned fees to his clients as preconditions to his reinstatement. The PRT report was filed with this Court on March 9, 2006. The parties filed a joint brief and waiver of further briefs in this Court on April 28, 2006.

II. Standard of Review of the Proceedings before the PRT

¶ 8 This Court has original and exclusive jurisdiction over bar disciplinary matters. RGDP, Rule 1.1. This Court's review of the proceedings before the PRT is de novo. State ex rel. Okla. Bar Association v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 545. This Court is not bound by the parties' admissions or stipulations nor the PRT's findings of facts and misconduct or recommendations of discipline. Id. In our de novo review, we examine the record and assess the weight and credibility of the evidence to determine if Beasley's professional misconduct is established by clear and convincing evidence and, if so, to determine the appropriate discipline. Id.

III. The Sufficiency of the Record

¶ 9 Beasley effectively stipulated to the facts set out in the six grievances underlying the charges of professional misconduct and the fact of his total failure to cooperate with the Bar Association. He testified that he had read the complaint, amended complaint and motion to deem allegations admitted and that he confessed the allegations of fact and misconduct. Beasley's stipulation was knowing and voluntary and consistent with other evidence in the record. Accordingly, we accept Beasley's stipulation as an evidentiary substitute for proof of the confessed facts. State ex rel. Okla. Bar Association v. Schraeder, 2002 OK 51, ¶ 8, 51 P.3d 570, 574-575. We find the admitted facts together with the documentary evidence, Beasley's sworn testimony and statements of counsel are sufficient for this Court's de novo review. State ex rel. Okla. Bar Association v. Groshon, 2003 OK 112, ¶ 7, 82 P.3d 99, 103.

IV. The Admitted Facts

¶ 10 In five of the counts, the Bar Association alleged ethical violations based on the facts contained in the clients' grievances and on Beasley's failure to respond to and cooperate with the Bar Association. In one count, the Bar Association alleged only Beasley's failure to respond. Beasley admitted the facts set out in the grievances and alleged in the complaint and amended complaint.

A. Count I: The Bartosh Grievance

¶ 11 In December, 2002, Noel Scott Bartosh paid Beasley $500.00 to assist with a mortgage application at the Creek Nation Housing Authority. Except for some attempts to contact the Cherokee Nation Housing Authority and finally the Creek Nation Housing Authority, Beasley did not perform any services for Bartosh. Beasley repeatedly failed to return phone calls or otherwise communicate with Bartosh. In June, 2004, Bartosh wrote Beasley demanding refund of the $500.00 fee. In September, 2004, Bartosh filed a grievance with the Tulsa County Bar Association.

¶ 12 In November, 2004, the Tulsa County Bar Association forwarded the Bartosh grievance to the Bar Association. In December, the Bar Association opened a formal investigation of the Bartosh grievance and mailed notice to Beasley on December 27, 2004. Beasley did not respond and the Bar Association mailed a second notice to Beasley on January 19, 2005. Again, Beasley did not respond and the Bar Association issued a subpoena, as authorized by RGDP, Rule 2.8(b), and then an alias subpoena to depose Beasley on March 10, 2005. Beasley did not appear for the deposition.

B. Count II: The Rokni Grievance

¶ 13 In June, 2004, Ali Rokni-Abjari (Rokni) hired Beasley to change his last name from Rokni-Abjari to Rokni. Rokni paid Beasley a $750.00 fee. Beasley repeatedly failed to return phone calls or otherwise communicate with Rokni. Beasley led Rokni to believe he had a court date for the name change but he did not. Rokni demanded a refund of the fee. Beasley did not perform any legal services for Rokni. In November, 2004, Rokni filed a grievance with the Tulsa County Bar Association.

¶ 14 In February, 2005, the Tulsa County Bar Association forwarded the Rokni grievance to the Bar Association. The Bar Association opened a formal investigation and mailed notice to Beasley on March 9, 2005. Beasley did not respond, and the Bar Association mailed a second notice to Beasley on March 16, 2005. Again, Beasley did not respond.

C. Count III: The Cooley Grievance

¶ 15 In February, 2005, Jana Denise Cooley hired Beasley to finish her pending divorce and paid him a $750.00 retainer fee. Beasley assured Cooley he had time to work on her divorce, and, at one point, Beasley promised to make a filing by the following Friday. Beasley did not meet the promised filing date, and he repeatedly...