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

• Citation: 1990 OK 14,787 P.2d 855
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James R. LLOYD, Respondent. OBAD 830. SCBD 3455.
• Decision Date: 13 February 1990
• Court: Oklahoma Supreme Court

Page 855

787 P.2d 855

1990 OK 14

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James R. LLOYD, Respondent.

OBAD 830.

SCBD 3455.

Supreme Court of Oklahoma.

Feb. 13, 1990.

Bar Disciplinary Proceeding.

Complaint alleged in a single count two episodes of professional misconduct claimed to warrant disciplinary sanctions. A trial panel of the Professional Responsibility Tribunal found respondent's conduct did not amount to a violation of the Professional Responsibility Code and dismissed the complaint. Upon this court's de novo review of the record, it is held that respondent's conduct warrants the sanction of.

PUBLIC REPRIMAND WITH PAYMENT OF COSTS.

Dan Murdock, Gen. Counsel, John E. Douglas, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

John D. Boydston, Tulsa, for respondent.

OPALA, Vice Chief Justice.

In this proceeding against a lawyer for imposition of professional discipline the issues are: Did the evidence establish that respondent attempted to deceive a claims adjuster by offering to settle a slip-and-fall case without first informing him that summary judgment had already been given to the insured party? Did respondent have a duty to explain at the time of his voluntary production of some medical records why he did not fully comply with the opponent's pretrial discovery request? and If so, what is the proper measure of discipline to be visited, bearing in mind that in the context of pretrial discovery conduct the then-effective Code ¹ did not provide a defined standard of duty to speak? We answer the first question in the negative and the second in the affirmative, and then responding to the third, we conclude that a public reprimand is the appropriate sanction.

James R. Lloyd [Lloyd], a licensed lawyer, was charged by complainant, Oklahoma Bar Association [Bar], with two acts of professional misconduct claimed to warrant disciplinary sanction. The Bar and Lloyd then entered into a written "Proposed Stipulations of Fact and Conclusions of Law with Agreed Recommendation for Discipline," which were adopted by a panel of the Professional Responsibility Tribunal [PRT]. This court declined to approve the then recommended discipline--i.e., public reprimand and assessment of costs--and remanded the complaint for a full evidentiary hearing before the PRT panel whence it came. After a post-remand hearing, the panel dismissed the complaint as unsupported by clear and convincing evidence.

Episode 1

The misconduct episodes under review occurred during Lloyd's representation of a client in a slip-and-fall case. Opposing counsel sought on two occasions to obtain

                copies of the client's medical records relative to the injury and those for a 10-year period next preceding that harmful episode.  Lloyd was served on May 21, 1986 with a motion to produce the records and then on June 3 with notice of a deposition hearing to be held June 10.  He had until June 21 to respond or object to the initial request 2 and until July 3 3 to the later request for production at the deposition proceeding.  Lloyd agreed to let his opponent have the requested materials on June 9.  Before they were picked up, he discovered that two pages contained potentially damaging statements. 4  Lloyd removed and withheld those pages from the delivered materials.  At the deposition hearing the following day he told opposing counsel that the records were "incomplete" and then handed him a medical release authorization.  On June 30, three days before the statutory deposition deadline for production of the material sought to be discovered, opposing counsel confronted Lloyd with knowledge of the excised pages' damaging content
                

Episode 2

On several occasions after the litigation had been instituted, Lloyd contacted the claims adjuster in an ongoing effort to settle the lawsuit. The afternoon following summary judgment's rendition for the adverse party, Lloyd again talked to the adjuster and attempted to secure a compromise. He made no mention of the judgment in favor of the insured defendant until the claims adjuster himself brought up the subject. He told the adjuster that the court's ruling--one in the nature of a default--could be easily vacated.

Opposing counsel sought sanctions against Lloyd for misconduct in failing to disclose that he had removed two pages from the produced records and in attempting to mislead the claims adjuster by withholding vital information about the unfavorable outcome of the summary judgment process. Lloyd's defense to this charge was that portions of the two excised pages were both "irrelevant" and inadmissible "hearsay." ⁵ The trial court declined to impose sanctions on Lloyd, concluding that the discovery code afforded no basis for their imposition.

I LLOYD'S RESPONSE

During the bar disciplinary proceedings Lloyd offered additional reasons for his actions. He had withheld the pages in order to "buy" more time during which he could determine whether his client was in fact inebriated when the harm occurred. He was concerned about subjecting his client, as well as himself, to sanctions for filing an unwarranted lawsuit. Conceding he should have withheld all the records until after he made this determination, Lloyd stated his decision voluntarily to produce some of the medical records was a "knee-jerk" reaction to the short notice given for the deposition. Because he still had three days left of the statutory 30-day period to exercise other options on behalf of his client, he had not sought a protective order when opposing counsel confronted him on June 30 with the missing content of the medical records. As for the charge involving the claims adjuster, Lloyd explains Lloyd perceived the discovery code as not requiring disclosure of any part of the medical records until the end of the statutory deposition deadline on July 3, 1986. He was of the view that, so long as the materials were being voluntarily produced during the 30-day period provided by legislative law, he could supply some of the records and withhold others. He believed the discovery code did not at that stage impose on him any further duty vis-a-vis the opposing counsel; neither did he believe he owed any responsibility to the court because no motion to compel was then pending before it. He emphasized his first duty was to protect his client from court sanctions by investigating the facts of the case. If his own inquiry were to reveal the suit was meritless, he would then be duty-bound to terminate the litigation. ⁶

he had no legal duty to inform his adversary of any developments in the case, much less to advise him about the summary judgment's appealability.

II VIOLATIONS OF CANONS OF PROFESSIONAL RESPONSIBILITY

In bar disciplinary proceedings this court does not function merely as a reviewing forum but rather sits as a licensing agency exercising directly its exclusive original jurisdiction. The ultimate responsibility for imposition of discipline rests on this court alone. In the process of deciding whether discipline is warranted and, if so, what sanction, if any, is to be imposed for professional misconduct, this court will conduct a de novo examination of the entire record. ⁷

The complaint alleges Lloyd's actions violated the mandatory provisions of DR 1-102(A)(4) and (5) and DR 7-102(A)(1), (2) and (3), Code of Professional Responsibility, ⁸ in that he had engaged in conduct intended to deceive or misrepresent matters subject to discovery as well as one which was prejudicial to the administration of judicial process; he took action on behalf of his client which would serve merely to harass or maliciously injure another; he advanced a defense that is unwarranted under existing law; and he knowingly failed to disclose that which he was required by law to reveal.

III ALLEGED DECEPTION-OF-ADJUSTER CHARGE

The deception-of-adjuster part of the charge is clearly dismissible. There is no fiduciary duty on the part of the advocate for a claimant to tell the insurance adjuster what the latter should know about the lawsuit. The record is barren of clear and convincing evidence to make this episode a fit foundation for a disciplinary infraction. ⁹

IV

ALLEGED DECEPTION IN KNOWINGLY WITHHOLDING ADMITTEDLY

DISCOVERABLE INFORMATION

The second episode--urged as a deception in knowingly withholding admittedly discoverable information that was subject to inspection--presents a gravely different situation.

Discovery is vital to the truth-seeking mechanism of our adjudicative process. ¹⁰ Any conduct that misleads one's adversary in the latter's search for the truth anterior to trial impedes and impairs the integrity of forensic fact-finding process. All pretrial discovery, whether carried out by voluntary or involuntary means, must be treated alike. Its contamination produces a like negative effect on the law's pursuit of truth. While a lawyer has no duty to give succor to, or actively facilitate, the truth-seeking quest of an opponent, he may not undermine it by actions tending to mislead. In the conduct of our adversary litigation process no stage affords a license for an advocate's use of misleading tactics to impede or thwart the foe's legitimate pursuits.

Misleading litigation conduct cannot be justified on the ground that there is no articulated code norm that prohibits it. Discovery production, both voluntary and court-mandated, is governed by the same ethical norms that are found in the law's general duty of proper conduct vis-a-vis one's opponent.

The instant proceeding for imposition of discipline must be viewed as governed by the ethical norms found in the then-effective Code ¹¹ rather than elsewhere in the body of our law. Were it a quest for sanctions, we would look for guidance to the discovery code. ¹² No less than full compliance or explained noncompliance is consistent with a lawyer's Code-imposed duty to produce discoverable information. In the context of pretrial litigation procedures,...