State ex rel. Oklahoma Bar Ass'n v. McMillian, 3469

• Decision Date: 31 January 1989
• Docket Number: No. 3469,3469
• Citation: 770 P.2d 892,1989 OK 16
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Roger L. McMILLIAN, Respondent. S.C.B.D.
• Court: Oklahoma Supreme Court

Page 892

770 P.2d 892

1989 OK 16

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Roger L. McMILLIAN, Respondent.

S.C.B.D. No. 3469.

Supreme Court of Oklahoma.

Jan. 31, 1989.

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

Paul M. Vassar and Cynthia J. Ferrell, Chandler, for respondent.

LAVENDER, Justice.

This is a bar disciplinary proceeding brought against Respondent, Roger L. McMillian by Complainant, the Oklahoma Bar Association. The Amended Complaint charged Respondent with two separate counts of professional misconduct. Count I charged violation of DR-1-102(A)(4), DR-7-102(A)(3), (5) and (6) and Count II violation of DR-1-102(A)(4) and DR-7-102(A)(5) of the Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App. 3. These provisions provide as follows:

DR 1-102. Misconduct

(A) A lawyer shall not:

....

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

DR 7-102. Representing a Client Within the Bounds of the Law

(A) In his representation of a client, a lawyer shall not:

....

(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.

....

(5) Knowingly make a false statement of law or fact.

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

Count I of the Amended Complaint charged Respondent with misrepresenting to a state judge and opposing counsel in a small claims case, both by written pleading and in open court, that a bankruptcy action had been filed on behalf of Respondent's clients in the small claims case when, in fact, no such action had been filed. Count I also charged Respondent with failing to inform the judge handling the small claims case that the bankruptcy action had not been filed after it became clear that the proceeding was not filed on or about the date Respondent had represented in a written Motion to Stay filed in the case. Count II charged Respondent with misrepresenting to a now retired state trial judge and opposing counsel in open court in a state court case involving an open account that a bankruptcy proceeding had been filed on behalf of his client when it had not been so filed. The misrepresentations, according to Complainant, were made in order to obtain stays of the state cases on behalf of Respondent's clients who were defendants in both cases.

The Trial Panel in its written Findings of Fact, Conclusions and Recommendations found that in neither case did Respondent intentionally mislead the judge or opposing counsel involved. Instead, the Panel found, without reliance on any specific disciplinary rule, that Respondent was unintentionally neglectful in failing to go to the involved judge in the small claims case prior to being notified by Complainant that his conduct was under investigation to inform her that bankruptcy had not been filed. As to Count II the Panel found Respondent unintentionally neglectful in not filing a bankruptcy action more promptly than it eventually was filed or in not advising the judge and opposing counsel that the filing was delayed because more preparation was necessary. The Panel recommended discipline in the form of a private reprimand and that Respondent pay the costs incurred in this proceeding. The Panel further recommended that Respondent The Complainant asserts before this Court that Respondent was guilty of the misconduct of misrepresentation and that we should impose a one-year suspension. Respondent asserts as to Count I that he was guilty, at most, of an honest mistake and that Complainant wholly failed to prove its case against him as to Count II. Respondent also asserts as a legal proposition that Complainant was required to prove, apparently as to any of the rule violations charged, that he was motivated by bad or evil intent. He contends no such intent was shown. At the conclusion of the May 2, 1988 evidentiary hearing the Trial Panel made a finding that no evil intent was evident. He, thus, initially requests no disciplinary sanction be imposed or, alternatively, if violation be found that the Panel's recommendation of a private reprimand be imposed. After an independent review of the entire record in this matter we conclude that Complainant proved by clear and convincing evidence that Respondent violated DR-7-102(A)(3) as charged in Count I of the Amended Complaint and DR-1-102(A)(4) and DR-7-102(A)(5) as charged in Count II. We further conclude that Complainant failed in its burden of proof as to the other disciplinary rule violations charged. We have further determined, based upon the facts and circumstances involved in this case and certain mitigating evidence, that Respondent should be publicly reprimanded for the misconduct found to exist and he should be ordered to pay the costs of these proceedings.

maintain tighter control over his case load and staff.

STANDARD OF DETERMINATION IN BAR DISCIPLINARY PROCEEDINGS

In disciplinary proceedings involving attorneys this Court's determinations are made de novo. ¹ In that we are a licensing court acting in the exercise of our exclusive original jurisdiction neither the findings of fact of the Trial Panel nor its view with respect to the weight of the evidence and the credibility of witnesses is binding on this Court. ² Neither the findings of fact nor the conclusions of law of the Trial Panel carry a presumption of correctness here. ³ Even though the Trial Panel's recommendations are accorded great weight such recommendations are merely advisory because the ultimate decision-making authority in bar disciplinary matters rests squarely with this Court. ⁴ With these principles in mind we turn to a discussion of each of the counts as charged against Respondent via the Amended Complaint, the Trial Panel's apparent view of the evidence in relation thereto and our view.

COUNT I

In regard to the situation involved in Count I certain matters are essentially undisputed. On or about November 24, 1986 a small claims case was filed in the small claims division of the District Court of Payne County. The case was based on failure to pay lot rent for space in a mobile home park. The case style was Jim Campbell and Associates v. Tom Deaton and Jean Deaton, SC-86-1171. Special Judge Lois L. Belden was assigned to the case. The matter was set for December 10, 1986 at 9:00 a.m. on Judge Belden's small claims docket. Respondent, a sole practitioner, was retained by the Deatons on December 3, 1986 who indicated to him they were in a bad financial posture. Respondent was made aware of the pendency of the small claims case and it was determined that bankruptcy would be filed. A Motion to Stay signed by Respondent was filed in the small claims case at 4:20 p.m. on December 9, 1986 asserting that a voluntary petition in bankruptcy had been filed by the Deatons on or about December 9, 1986. In actuality, the bankruptcy petition was not filed until January 22, 1987.

The initial factual dispute as relating to the misconduct charged revolves around whether Respondent knew when the Motion to Stay was filed that the bankruptcy petition would not be filed on the 9th of December or, at the latest, on December 10, 1986. The only direct testimony concerning this factual dispute came from Respondent.

According to Respondent the Deatons were to come into his office to sign the bankruptcy petition mid-to-late afternoon on December 9th. Evidently, just prior to said time, Respondent had finalized preparation of the necessary papers for the Deatons' signatures and they had been contacted upon such finalization. In that the papers were already prepared from information previously furnished it was not necessary for Respondent to meet with the clients on the 9th. At this point in time in the mechanics of obtaining signatures and filing, Respondent routinely relied on a staff person. Thus, Respondent testified he did not know by the end of the day on the 9th that the Deatons had not been to his office on said day nor that they had failed to execute the necessary papers. It turned out, of course, that they had not appeared on said day. Even though the record does appear to disclose that it would have been unlikely that the bankruptcy petition could have been filed in the United States Bankruptcy Court for the Western District of Oklahoma on December 9, 1986 given the time the Deatons were to appear at Respondent's office in the afternoon hours, the record as a whole indicates Respondent, at the time of filing the Motion to Stay, had every intention of having the bankruptcy petition filed no later than December 10th. In fact, Respondent's own testimony discloses that he anticipated the petition would be mailed to the federal court on December 9th at the time the Motion to Stay was filed in the late afternoon and would probably not be filed until December 10, 1986. ⁵

Given the situation then existing and Respondent's reasonable expectation that the bankruptcy papers would be mailed for filing on the 9th, we do not think a violation of any of the rules charged in Count I was proved by Complainant by clear and convincing evidence in conjunction with the mere filing of the Motion to Stay coupled with the failure to have the bankruptcy petition filed on the 9th or the 10th. ⁶ Although we believe an attorney must strive to be as precise and accurate as possible when making factual assertions in documents filed with a court, in light of the language used in the Motion to Stay of filing the bankruptcy petition, "[O]n or about the 9th day of December, 1986," had the papers actually been mailed for filing on that date, as Respondent thought they would be when the Motion to Stay was filed, the bankruptcy petition would have been filed on or about the 9th, i.e. on December 10, 1986. In that at the time of filing the Motion to Stay the evidence appears to show Respondent in good faith believed the bankruptcy petition would...