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

• Citation: 919 P.2d 427,1996 OK 75
• Decision Date: 18 June 1996
• Docket Number: No. 4006,4006
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Earl W. WOLFE, Respondent. SCBD
• Court: Supreme Court of Oklahoma

Page 427

919 P.2d 427

1996 OK 75

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Earl W. WOLFE, Respondent.

SCBD No. 4006.

Supreme Court of Oklahoma.

June 18, 1996.

As Corrected on Denial of Rehearing July 16, 1996.

Dan Murdock, Janis Hubbard, Oklahoma Bar Association, Oklahoma City, for Complainant.

Craig Tweedy, Sapulpa, for Respondent.

HODGES, Justice.

I. PROCEDURAL HISTORY

The Oklahoma Bar Association (OBA) filed a complaint against Earl W. Wolfe (Wolfe or Respondent) on June 2, 1994, alleging seventeen counts of misconduct in violation of the Oklahoma Rules of Professional Conduct, Okla. Stat. tit. 5, ch. 1, app. 3-A (1991) (hereinafter ORPC), and the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (1991) (hereinafter RGDP). Respondent filed an answer on June 23, 1994. On August 2, 1994, the OBA filed an amended complaint alleging an additional seven violations of the ORPC and the RGDP. Not until September 20, 1994, did Respondent file an answer to the amended complaint and only after being ordered to respond to a Motion to Deem Allegations Admitted.

The Professional Responsibility Tribunal (PRT) held a hearing on March 1, 1995. The parties filed a stipulation of findings of facts and conclusions of law. Respondent moved for a continuance so he could provide psychological testimony. The PRT continued the hearing until May 9, 1995, at which time it took testimony. However, on May 9, Respondent failed to provide any psychological testimony.

The PRT adopted the stipulation of the facts and conclusions of law. After considering the facts, Respondent's previous discipline for violating the rules governing attorneys' conduct (a private reprimand and a six-month suspension), the OBA's recommendation that Respondent be disbarred, and Respondent's position that he should receive only probation, the PRT recommended a two year suspension.

II. FACTS

On August 30, 1991, Respondent received a private reprimand from the Professional Responsibility Commission for negligently handling clients' matters, for failing to communicate with his clients, and for failing to respond to the OBA's grievance investigations. On June 15, 1993, this Court suspended the Respondent from the practice of law. State ex rel. Oklahoma Bar Association v. Wolfe, 864 P.2d 335, 336 (Okla.1993). Because a motion for rehearing was filed, the suspension did not become effective until November 1, 1993. The six-month suspension was based on Respondent's neglect of client matters and failure to respond to the OBA's grievance investigations.

Respondent has stipulated to twenty-four counts of violating the ORPC and the RGDP. Several of the counts occurred after the 1993 suspension and others were being investigated at the time of the suspension.

On thirteen occasions, Respondent failed to timely respond to the OBA requests for information concerning complaints against him. On several of those occasions, Respondent did not file a written response. Rather, his response was solicited during his deposition and only after the OBA subpoenaed him.

Three counts involve his trust account. Three times Respondent's checks on his trust fund were returned for insufficient funds. Respondent admits to having written a check on his trust account to purchase a business asset. One time, Respondent paid out more from his trust account on behalf of a client than he had received. Respondent deposited a $200 check in his trust account which he refunded from his operating account. When the check would not clear, he gave the client cash. Respondent deposited money from a client into his operating account to pay some of the client's expenses. Respondent did not pay the client's bills but paid himself.

On June 15, 1993, Respondent had not filed his income tax returns for 1990 and 1991. At the time the complaint was filed on June 2, 1994, Respondent had not filed his 1992 tax returns. The tax returns were not filed until a week before the hearing.

On seven occasions, Respondent neglected his client's cases. Respondent failed to respond to motions to dismiss and for summary judgment, failed to appear for hearings, failed to prosecute appeals, failed to file judgments, and failed to inform his clients of his suspension. Respondent's neglect resulted in the dismissal of his clients' cases. He either did not tell his client the case was

dismissed or he told them he would refile the matter.

III. Due Process

A. Bias of the PRT

In Respondent's brief before this Court, he asks that he be granted a new hearing before a new panel. His requests rests on allegations of unfairness and bias. The allegations are not supported by references to the record. Rather, Respondent relies on the fact that the PRT would not continue the first hearing and that it would not allow him to present certain evidence concerning the "Bar and federal court insider causations for the depression and failures."

The complaint was filed on June 2, 1994, and the amended complaint was filed on August 2, 1994. Respondent did not file an answer to the amended complaint until September 20, 1994. Respondent filed an amended answer on March 2, 1995, a day after the first hearing was held. Even though nine months had lapsed since the complaint was filed and seven months since the amended complaint was filed, Respondent's attorney had only one witness, other than himself and the Respondent, present at the hearing and was unable to produce any of his exhibits. That witness was an investigator for the OBA. Respondent's attorney requested a continuance to present psychological testimony. The PRT continued the hearing until May 9, 1995, for the express purpose of allowing psychological testimony. However, Respondent failed to present any such testimony.

After considerable time had been spent by Respondent's attorney on the cause of Respondent's depression, the panel refused further testimony as repetitious. Respondent's attorney was allowed to make an offer of proof but failed to present any additional evidence of the OBA failures which he alleged caused Respondent's depression, or "wounded" state as the Respondent characterizes the problem.

In Respondent's brief he argues his exhibits 1 through 5 reveal evidence of abuses by the Professional Responsibility Commission and federal judges, as well as showing insider corruption at the OBA. The exhibits do not support these allegations. Exhibit 1 is a copy of this Court's opinion in Tweedy v. Oklahoma Bar Association, 624 P.2d 1049 (Okla.1981). Exhibits 2, 3, 4, and 5 are documents filed by Craig Tweedy, Respondent's attorney, in a disciplinary matter against Tweedy. Nothing in these documents prove corruption in either the OBA or the federal courts.

Respondent did present the testimony of Steven R. Hickman who testified that the OBA was biased toward large firms and attorneys who practice with those firms. Mr. Tweedy and Respondent also testified that they perceived a bias by the OBA against certain attorneys and that there was insider corruption. None of these witnesses gave any facts which supported their allegations of bias or corruption. A showing of bias requires more than a showing that the trier of fact ruled adversely to you. Green v. Dorrell, 969 F.2d 915, 919 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). Therefore, Respondent's request for a new hearing before a new panel is denied.

B. Federal Court Suspension

Based on this Court's suspension, Judge Ellison suspended Respondent from practicing in the federal courts for the Northern District of Oklahoma on July 15, 1993. This Court's opinion suspending Respondent was issued on June 15, 1993 but, because of rehearing, did not become effective until November 1, 1993. Therefore, the federal court suspension was operative for thirteen months and two days. Respondent argues the extended suspension in federal court violated his due process.

A disciplinary proceeding before this Court is not the proper forum for addressing grievances against the federal bench's decisions. See RGDP at rule 1. The Tenth Circuit Rules provide the avenue for complaints against federal judges. Rules of the Judicial Council of the Tenth Circuit Governing Complaints of Judicial Misconduct or Disability, Preface, Rules 1-23 (1994). Further, appeals of suspensions from a district judge in the Northern District are to the remaining active

judges of the district. Local Civil Rules of the United States District Court for the Northern District of Oklahoma, Rule 1.4(E) (1995). The record does not show Respondent took any of the proper steps to appeal the suspension in the federal court.

IV. Mitigation

A. Equity

Respondent urges this Court to consider the equities in mitigation of damages. He asserts that the insider corruption within the OBA and within the federal bench helped bring about his wounded state of mind. However, Respondent failed to factually support his allegations of corruption, past or present, within the OBA, the General Counsel's Office, or the federal bench. This "defense" is without merit.

B. Merger

Respondent also argues the doctrine of merger prevents the consideration of discipline for the stipulated violations. Respondent's contention is elusive, but he appears to argue that the OBA was estopped from pursuing the present claims because they were merged with the previous suspension. The present violations could not have been previously presented because some of them had not occurred in time to be prosecuted with this complaint. See Stipulated Findings of Facts and Agreed Conclusions of Law pp 12-25, 28-30, 37-38, 44-45, 55-60, 62-65, 67-72, 74-78, 85-87, 107-08, 114-116, 120-22, 124-126. Respondent unreasonably delayed the investigation of others through his failure to respond to the OBA's requests for information and for documents. Id. at pp 32-35, 40-42, 47-53, 81-83, 90-98, 100-106, 110-11, 118, 123, 127. This Court will...