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

• Decision Date: 15 April 1997
• Docket Number: No. 4110,4110
• Citation: 1997 OK 47,937 P.2d 988
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Earl W. WOLFE, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 988

937 P.2d 988

1997 OK 47

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

SCBD No. 4110.

Supreme Court of Oklahoma.

April 15, 1997.

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

Craig Tweedy, Sapulpa, for Respondent.

KAUGER, Chief Justice:

The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Earl W. Wolfe, with four counts of professional misconduct--unprofessional behavior in a client relationship; failure to respond timely to a grievance; the unauthorized practice of law; and noncompliance with disciplinary rules involving a prior suspension. Although divided into four charges, the counts involve multiple violations of the Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A and the Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A. ¹ There is clear and convincing evidence of the ethical violations. ² We find that the respondent's unauthorized practice of law while under a disciplinary suspension coupled with other misconduct, his repeated appearances before this Court on disciplinary matters, ³ discipline imposed in similar cases and the failure to respond timely to the grievance warrant disbarment and the imposition of $1,617.32 in costs. ⁴ We do not agree with the respondent that he was treated unfairly or that he was denied due process in the grievance proceedings. Nevertheless, in disciplinary matters involving repeat offenders, consolidation of time-related offenses is necessary to avoid the waste of judicial resources, to provide a clear picture of the respondent's problems and shortcomings, and to ensure that the appropriate discipline is imposed.

FACTS

In the spring of 1993, Richard Steele (Steele/client) approached the respondent about filing a civil rights action against the Ninnekah Public Schools (public schools). The respondent informed Steele that he had pending disciplinary problems, but he agreed to take the case on a contingency fee basis indicating that someone else in the firm might have to be responsible for the actual filing of pleadings. The respondent was practicing under the firm name, Earl Wolfe and Associates, but there were no other attorneys in his office at that time.

A complaint was filed in the United States District Court for the Western District on April 13, 1993. Answers to defense interrogatories were due on June 11, 1993. The respondent forwarded the interrogatories to Steele who returned the answers within two or three days. When defense counsel did not receive the answers by the due date, she attempted to phone the respondent. The call was not returned. After receiving a letter from the defense counsel concerning the tardy responses, the respondent contacted her and he promised that she would have the answers early in the week of June 21st. No answers were received and a motion to compel interrogatory answers was filed on July 2, 1993. When Steele got a copy of the motion to compel in the mail, he contacted the respondent who assured Steele that he had adequate time to file the requested information and that he had never been untimely in a court filing. Because no response to the interrogatories was received by the defense, the motion to compel was sustained on September 13, 1993.

This Court suspended the respondent from the practice of law for six months on June 15, 1993. ⁵ Based on the discipline, the federal court suspended the respondent from practicing in the western district effective July 8, 1993. ⁶ The respondent told Steele of his state court suspension, but he indicated that he would be able to continue to represent him pending a ruling on a petition for rehearing filed in response to State ex rel. Oklahoma Bar Ass'n v. Wolfe (Wolfe I ), 864 P.2d 335, 339 (Okla.1993). The respondent prepared a pro se appearance for Steele's signature which was filed on August 12, 1993. ⁷ On September 9, 1993, the federal court gave the respondent five days to provide proof of his ever having been admitted to practice in the western district. Because he had never been admitted by rule or by motion, the respondent did not comply and the motion to vacate his federal court suspension was denied.

The school district filed for summary judgment on September 22, 1993. On October 15, 1993, the federal court sustained the motion based on Steele's failure to respond. On October 23, 1993, Steele met with the respondent who had him sign a blank piece of paper. The signature page was to have been attached to a motion to reconsider which the respondent assured Steele he would file. No motion to vacate the summary judgment was filed. When Steele called the respondent during the fall of 1993 to check on the status of the case, the respondent told him that he had heard nothing from the federal court. Steele was clearly under the impression that a decision on the motion to reconsider was pending, and that the respondent continued to be his legal representative. ⁸

On January 22 and again on February 1, 1994, after repeated attempts to obtain information from the respondent concerning the motion to vacate and the status of his case, Steele wrote the federal judge presiding over his cause and he requested information. On February 14, 1994, the federal judge ordered The respondent insists that he informed Steele of his suspension and of his inability to represent him after the petition for rehearing was denied by this Court in November of 1993, and that he urged him to obtain new counsel. However, Steele testified that he was unaware that the respondent was unable to proceed as his attorney until after April 15, 1994---at approximately the time the federal court gave him the opportunity to again respond to the motion for summary judgment. The respondent admits that between July and November of 1993, while barred from practice in the federal court, he assisted Steel in preparing pleadings to be filed in that jurisdiction. ⁹

the respondent to answer the allegations of inactivity and neglect. No response to the order was filed. Nevertheless, the federal court vacated the summary judgment order, and it granted Steele thirty days to obtain successor counsel and to respond to the motion for summary judgment. Steele was unable to find a new attorney and no response was filed. Summary judgment was sustained in the school district's favor on July 21, 1994.

The cause originally initiated from a complaint filed by the federal judge presiding over the Steele matter, ¹⁰ and it was instituted as a Rule 6 proceeding. ¹¹ The Bar Association mailed a grievance letter to the respondent on March 8, 1995. ¹² When no answer to the grievance was received, a second grievance letter was mailed on April 7, 1995, requiring a response within five days. The respondent did not reply to the second request for information until April 24, 1995. ¹³ Wolfe admits that, after he was suspended by the federal court, he prepared documents for filing in the federal case and that he promised to assist in getting the motion for summary judgment set aside. ¹⁴ The respondent did not list Steele as a client in the affidavit filed with the Bar Association pursuant to Rule 9.1, Rules Governing Disciplinary On June 18, 1996, in State ex rel. Oklahoma Bar Ass'n v. Wolfe (Wolfe II ), 919 P.2d 427, 432 (Okla.1996), we suspended the respondent for two years and one day for the misuse of a trust account, failing to file income tax returns, neglecting client cases and failing to respond timely to grievances. The trial panel issued its report relating to the current charges of misconduct on October 21, 1996, recommending disbarment and the imposition of costs. Contending that the Bar Association's reply unfairly prejudiced his rights and that he was denied due process, the respondent applied to file his surreply on January 27, 1997. ¹⁵

Proceedings, 5 O.S.1991, Ch. 1, App. 1-A, or give him written notice of the suspension.

I.

THERE IS CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE

MULTIPLE CHARGES OF ATTORNEY MISCONDUCT.

Before this Court may impose discipline upon an attorney, the charges must be established by clear and convincing evidence. ¹⁶ The respondent asserts that there is no evidence of misconduct. The Bar Association argues the record is sufficient to support the multiple charges levied against the respondent.

The facts present clear and convincing evidence of the ethical violations. It is obvious that: 1) the representation which Steele received was not competent; 2) Steele's case was neglected; 3) the respondent's communication with his client was not candid; 4) the respondent misrepresented his professional status to his client by not effectively withdrawing from representation until after the motion for summary judgment was vacated in April of 1994--seven months after he was suspended by the federal court, and five months after the suspension imposed in Wolfe I became operative; and 5) the respondent engaged in the unauthorized practice of law and conducted himself in a manner that was prejudicial to the administration of justice. It is equally clear that the response to the grievance was untimely--having been made only after a second request for information and forty-seven days after the original grievance letter was mailed--and that the respondent failed to comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A, when he did not give Steele written notification of his suspension in Wolfe I or include Steele's name as a client on the affidavit filed with the Bar Association.

II.

THE UNAUTHORIZED PRACTICE OF LAW WHILE UNDER A DISCIPLINARY

SUSPENSION COUPLED WITH OTHER MISCONDUCT, THE RESPONDENT'S

DISCIPLINARY HISTORY, AND DISCIPLINE ADMINISTERED IN SIMILAR

CASES WARRANT DISBARMENT AND THE PAYMENT OF COSTS.

In disciplinary matters, this Court possesses exclusive original jurisdiction. ¹⁷

...