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

• Decision Date: 07 October 2008
• Docket Number: No. 5082.,No. 1665.,5082.,1665.
• Citation: 202 P.3d 822,2008 OK 91
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Richard F. BERGER, Respondent.
• Court: Oklahoma Supreme Court

202 P.3d 822

2008 OK 91

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Richard F. BERGER, Respondent.

SCBD No. 5082.

OBAD No. 1665.

Supreme Court of Oklahoma.

October 7, 2008.

Rehearing Denied December 15, 2008.

¶ 0 Oklahoma Bar Association filed a disciplinary proceeding under Rule 6 against respondent alleging one count of professional misconduct concerning neglect of client matters and misrepresentation of the facts to the client and the Oklahoma Bar Association. The trial panel of the Professional Responsibility Tribunal found respondent's misconduct warranted suspension from the practice of law for two years and one day together with payment of costs. Upon review we find the appropriate discipline is suspension from the practice of law for three months.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR THREE MONTHS. COSTS CHARGED TO RESPONDENT.

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

Richard F. Berger, Pro Se, Derry, NH, for Respondent.

EDMONDSON, V.C.J.

¶ 1 The Oklahoma Bar Association (OBA) charged respondent, Richard F. Berger, with one count of neglect of a client matter and misrepresentation of such to the client and to the Bar Association, in violation of Rules 1.1, 1.3, 1.4, 3.2, 8.1 and 8.4(c), of the Rules of Professional Conduct, (ORPC), 5 O.S.1991 Ch. 1, App. 3A and Rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.1991 Ch. 1, App. 1-A.¹ The proceeding was brought pursuant to Rule 6, RGDP and hearing was held before a trial panel of the Professional Responsibility Tribunal.

¶ 2 The panel issued its report of findings of fact and conclusions of law on September 16, 2005, and unanimously found, based on the parties' joint stipulation of certain facts exhibits and testimony by respondent and an investigator for the Oklahoma Bar Association, that the alleged violations of ethical rules charged in the complaint were established by clear and convincing evidence as required by Rule 6.12, RGDP, and constituted grounds for professional discipline. The panel recommended respondent be suspended from the practice of law for two years and one day.

COUNT I

¶ 3 The single count is predicated on a grievance by Gary Motley, owner of RV Repair, against respondent, an Oklahoma City practitioner who represented Motley in a collection matter against the owner of an oilfield truck (Rosel) who had stopped payment on a check in the amount of $517.73 tendered to Mr. Motley for repair work he performed on the truck. Respondent and Mr. Motley were neighbors and respondent had represented him several times, mostly about collection matters. The essence of Mr. Motley's grievance is that even though he ultimately received the amount of money he was pursuing through respondent, he believes the funds respondent sent to him did not originate with Rosel, but were instead from respondent's own pocket. Mr. Motley contended that he had been unable to learn the truth of this matter from respondent.

¶ 4 Mr. Motley stated he contacted respondent in 2002 about filing a suit to collect the money Rosel owed him, and respondent later assured him things were progressing and the money should be received soon. Mr. Motley said respondent was extremely hard to contact and he did not respond to numerous messages left for him. Motley stated he did not receive a copy of a demand letter to Rosel, and in early 2004 he requested the case number from respondent, but did not receive it. In March, 2004, Mr. Motley received a check in the mail for $369.13 with no explanation. It was drawn on respondent's business account and had a notation reading "partial-collection Rosel." In April 2004, Motley received another check drawn on the same account; this check was in the amount of $130.87, and had some notations including a case number, "CS-2003-2071."

¶ 5 Mr. Motley requested a copy of the judgment from respondent, and subsequently received a fax from respondent of an unreadable copy of a purported journal entry. After requesting a clear copy he received other copies of the document which reflected filing in Oklahoma County District Court, but they did not have a proper filing stamp and they had different prefix letters and years as well as transposed case numbers which do not comport to the parties or any journal entry issued in those case numbers in Oklahoma County or in any surrounding county.

¶ 6 Mr. Motley then hired another attorney, Mr. Brady, to try to clarify this matter, but Brady was also unable to get information from respondent. Respondent advised him in writing that he was represented by counsel, but would not reveal counsel's name. He stated that Rosel's debt had been collected in full, and sent a final check for $50.00 for Mr. Motley, but it was never negotiated. He asked Brady not to collect any costs or fees from Mr. Motley on respondent's behalf.

¶ 7 It is undisputed that Respondent had a heart attack in 2002 and he was subsequently hospitalized several times and unable to go to work for long periods of time. Due to continuing serious health problems, he began closing his practice in 2004 and was helped in doing so by three attorneys and their non-attorney staff. He closed his practice in May 2004 and moved to New Hampshire where he still lives and does non-legal work for an insurance company. He has not practiced law since he left Oklahoma and he remains in poor health.

¶ 8 The Office of the General Counsel of the Oklahoma Bar Association wrote respondent and requested him to respond to the grievance. Respondent did timely respond by letter of April 19, 2005, in which he strongly implied that he had filed (or caused to be filed by the attorneys helping him) an action against Rosel on behalf of Motley. He stated a demand letter had been sent to Rosel, but that portion of "this small claims file" could not now be located. The matter, he said, had been "finally, fully and thankfully settled" and the two partial settlement checks ($369.13 & 130.87, totaling $500.00) had been sent to Mr. Motley after respondent received money orders in those amounts. He explained that the staff had inadvertently placed the money orders, along with other checks, in his business account rather than his trust account, and he suggested the incorrect case number was a result of closing out his practice and might be an incorrect number or filed in the wrong county. Respondent stated that he was unable to provide copies of the letter he sent to Brady. With this response, respondent sent a cashier's check for $50.00 payable to Mr. Motley. Respondent advised that he had always thought the sum of money that Rosel owed Mr. Motley was $550.00.

¶ 9 The General Counsel's office then investigated the matter and determined the explanations presented by respondent were false and misleading. A search of numerous counties found no case filed by respondent on behalf of Mr. Motley against Rosel. Rosel advised the OBA that he was not aware of any suit being brought about this matter and that neither he nor his company had made any payments to respondent. The Office of General Counsel then wrote respondent again, advising him of these facts and asking him to supplement his response and provide proof of the existence of his case filed for Mr. Motley or to rethink his position as to what had taken place in this matter.

¶ 10 Respondent sent a supplemental response to the OBA on May 31, 2005, but it did not present proof that he had filed an action for Mr. Motley. Respondent stated he had discovered that his earlier statement to the Bar that the funds came from Rosel was wrong. He now knew, he said, that his source of that information, a staff person, had just been telling him "what he wanted to hear"—that the case was concluded—and respondent had then relayed that inaccurate information to the OBA. He had also discovered problems with the manner in which the staff had been making deposits, and had learned that the funds sent to Motley apparently were respondent's monies. Respondent acknowledged that he is responsible for any and all actions or inactions that occurred in his office, and stated that he therefore would not name the person he thought made these errors and misstatements.

¶ 11 Respondent's testimony before the panel offered no new insight as to the events at issue. He said he thought he had asked one of the secretaries to file the case, but she obviously had not done so and had told him she had no memory of him asking her. He stated he did not create the false journal entry and he did not know the circumstances under which it was created. He said he apparently had made a mistake in the case number, and stated the other lawyers did not have the file. He stated he now is of the opinion that the case was not filed.

STANDARD OF REVIEW

¶ 12 In bar disciplinary proceedings, this Court exercises exclusive original jurisdiction as a licensing court, not as a reviewing tribunal. RGDP 1.1; State ex rel. Oklahoma Bar Ass'n v. Schraeder, 2002 OK 51, 51 P.3d 570, 573. It is our ultimate responsibility to examine the record and assess the credibility and weight of the evidence in order to determine whether it clearly and convincingly establishes professional misconduct by respondent and, if so, what the appropriate discipline, if any, should be. State ex rel. Oklahoma Bar Ass'n v. Stutsman, 1999 OK 62, 990 P.2d 854, 858. In the exercise of our constitutionally invested and nondelegable power to regulate both the practice of law and legal practitioners, we are not bound by the recommendations of the PRT; they are advisory only, as our review is de novo. State ex rel. Oklahoma Bar Association. v. Donnelly, 1992 OK 164, 848 P.2d 543, 545-6

¶ 13 Upon consideration of the record, we adopt the conclusion of the PRT that the evidence clearly and convincingly showed respondent had violated the rules as charged in the Complaint, and we hold that discipline has...