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

• Decision Date: 09 June 1992
• Docket Number: No. 3733,3733
• Citation: 1992 OK 81,833 P.2d 260
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Kenneth V. TODD, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 260

833 P.2d 260

1992 OK 81

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Kenneth V. TODD, Respondent.

SCBD No. 3733.

Supreme Court of Oklahoma.

June 9, 1992.

BAR DISCIPLINARY PROCEEDING

Oklahoma Bar Association (OBA) charged Kenneth V. Todd (Todd) with misconduct warranting professional discipline in the form of fraudulent conduct toward an opposing party and in presentation of a matter to a court to obtain a default judgment. The Professional Responsibility Tribunal (PRT) concluded Todd was guilty of misconduct and recommended a one (1) year suspension. Held: The OBA did not prove by clear and convincing evidence fraudulent conduct toward an opposing party. Todd did, however, engage in fraudulent conduct in presenting evidence to support a default judgment in violation of Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility, 5 O.S. 1981, Ch. 1, App. 3 and such conduct warrants a six (6) month suspension from the practice of law.

RESPONDENT SUSPENDED FOR SIX (6) MONTHS AND TO PAY COSTS OF PROCEEDINGS.

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

Robert G. Green, Tulsa, for respondent.

LAVENDER, Justice:

Complainant, the Oklahoma Bar Association (OBA) charged respondent, Kenneth V. Todd with misconduct warranting discipline. We hold the OBA did not prove by clear and convincing evidence Todd engaged in deceitful or fraudulent conduct toward an opposing party, but the OBA did prove he engaged in deceitful or fraudulent conduct in presentation of evidence to a tribunal to obtain a default judgment. ¹ Such misconduct warrants a six (6) month suspension from the practice of law.

In attorney disciplinary proceedings this Court's determinations are made de novo. State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 894 (Okla.1989). The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with us in the exercise of our exclusive original jurisdiction in bar disciplinary matters. State ex rel. Oklahoma Bar Association v. Lloyd, 787 P.2d 855, 858 (Okla.1990). Accordingly, neither the findings of fact of a Professional Responsibility Tribunal (PRT) nor its view of the evidence or credibility of witnesses are binding on us and recommendations of a PRT are merely advisory. McMillian, supra at 894. With these principles in mind we turn to a discussion of the matter before us.

Todd was charged with violating Rule 8.4(c) of the Rules of Professional Conduct, 5 O.S. 1991, Ch. 1, App. 3-A. Rule 8.4(c) provides, "[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation [ ]". In that all of the alleged misconduct occurred prior to July 1, 1988, the effective date of the new Rules of Professional Conduct, 5 O.S.Supp.1988, Ch. 1, App. 3-A, Todd should have been charged under the virtually identical predecessor rule found in the former Code of Professional Responsibility, 5 O.S. 1981, Ch. 1, App. 3, DR 1-102(A)(4). As no issue is raised by Todd in regard to this apparent error on the part of the OBA in charging him and we can discern no prejudice to him in light of the fact Rule 8.4(c) contains no substantive change from the former disciplinary rule we proceed on the basis Todd was properly charged under DR 1-102(A)(4). ²

The OBA and Todd entered into written stipulations concerning the issues to be tried at the PRT hearing. The stipulations were as follows:

Whether or not [ ] Todd, in the handling of Case No. CJ-85-6913, Kenneth Cooper vs. Tulsa Adjustment Bureau, Inc. and McCormick & Co., "engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation", constituting professional misconduct of a lawyer. [Rule 8.4(c) ]

The specific professional misconduct claimed by [the OBA] and denied by [Todd], is that on October 31, 1985, [Todd] had a conversation with Lauren Oswald, employed by McCormick in the legal function department. During that conversation, [Todd] informed Oswald that McCormick was wrongfully garnishing Cooper's pay checks and that if the money was immediately reimbursed the matter would be over with and final. [Todd] failed to tell Oswald a lawsuit had been filed October 30, 1985.

Additionally, on November 27, 1985, [Todd], together with his client, Kenneth Cooper, appeared before Judge Allen Klein for the purpose of taking a default judgment against McCormick. [Todd] failed to inform Judge Klein that the itemized damages of $497.82 prayed for in the petition had, after the filing of the petition, been received by [Cooper]. Also, on November 27, 1985, [Todd] presented to Judge Klein, for the judge's signature, an order granting the default judgment. Todd prepared the order and included the $497.82 actual damages in the award.

We held in McMillian, supra, 770 P.2d at 899, DR 1-102(A)(4) is generally geared toward fraudulent conduct and, as such, bad or evil intent or its legal equivalent must be shown by clear and convincing evidence to make out a violation of the rule. ³ It was, thus, incumbent on the OBA to prove by clear and convincing evidence Todd, as to one or the other or both of the specific episodes involved, had a purpose to deceive. We deal with the Oswald matter first, providing background as necessary.

On or about July 19, 1985 ⁴ a judgment was entered in the District Court of Tulsa County against Kenneth Cooper in favor of Tulsa Adjustment Bureau, Inc. (Bureau) in the approximate amount of $3,500.00. In an attempt to satisfy the judgment Bureau issued a garnishment summons to Cooper's employer, McCormick & Co. (McCormick), on or about August 2. On August 8 McCormick sent a memo to Cooper advising of the garnishment and stating it would deduct 25% of his net pay to begin with his next paycheck until the judgment was paid in full. Apparently, Maryland (where McCormick's corporate offices were located) at the time allowed a continuing garnishment on wages based on one summons. Oklahoma did not, although now one may obtain a continuing wage garnishment. 12 O.S. 1991, § 1173.4. McCormick withheld $165.94 for the August 30 pay period apparently in conformity with Oklahoma law, but continued to deduct this same amount from four additional pay periods (September 13 and 27 and October 11 and 25) without having received additional garnishment process. Cooper informed Todd of the situation and in late October Todd telephoned McCormick corporate offices either to simply discuss the matter or to determine who to serve legal papers on. He was not able to talk to anyone with authority in regard to the matter and he apparently left his name, telephone number and that he was calling about the Cooper garnishment.

A petition was filed on October 30 by Todd on behalf of Cooper after the initial call. The first cause of action was against Bureau for wrongful garnishment and prayed for $497.82 actual damages and $50,000.00 punitive damages. The second cause was against Bureau and McCormick for conversion and prayed for $497.82 actual damages and $100,000.00 punitive damages. The third cause was against McCormick for wrongful failure to promote Cooper because of the garnishment matter involving Bureau and it prayed for $50,000.00 actual damages and $250,000.00 punitive damages. A fourth cause sought to enjoin Bureau and McCormick from proceeding further in any garnishment proceedings until further order of the court.

It is undisputed Oswald telephoned Todd on October 31. Other than that fact and that Todd did not inform Oswald a lawsuit had been filed the day before, the testimony was extremely conflicting as to the substance of the conversation. Oswald testified she specifically informed Todd reimbursement would be made for the four wage deductions not in compliance with Oklahoma law and that Todd specifically informed her reimbursement would settle the matter. The substance of Todd's testimony was he merely generally discussed the matter with Oswald, he told her McCormick was withholding money it was not allowed to withhold, and that she did not tell him there would be any reimbursement, but merely said she would look into the matter. Todd also testified he had no authority from Cooper to settle at the time of the October 31 conversation. Todd's testimony was basically corroborated by Cooper who testified he was present at the time of the conversation, that he had given no authority to settle and Todd did not tell Oswald the matter would be settled if reimbursement was made. ⁵

The evidence also showed on October 31 McCormick issued a check to Cooper for $663.76 representing reimbursement for the four September and October withholdings along with a letter explaining the mistake and apologizing for any inconvenience caused to Cooper. ⁶ Cooper received the letter and check, which he endorsed and cashed on November 5. McCormick was served with process and the petition in early November, but for some unexplained reason, not associated with any misconduct of Todd or anyone acting on his behalf, failed to file an answer. ⁷ No further contact was had between Todd and McCormick between October 31 and November 27, the date default judgment was entered, the circumstances of which will be explained shortly. This concludes the necessary factual matters in relation to the misconduct charged against Todd in relation to the Oswald telephone episode.

In our view neither the evidence detailed above or any other contained in the record proved by clear and convincing evidence fraudulent or deceitful conduct in violation of DR 1-102(A)(4) by Todd relating to his dealings with Oswald, as representative of McCormick. In the first instance, the OBA appears to assert Todd had some duty to inform Oswald a lawsuit had been filed against McCormick the day before the conversation. We are aware of no such duty and the OBA points to no statute, disciplinary rule...