STATE EX REL. OKLAHOMA BAR ASS'N v. Wilcox

• Decision Date: 03 November 2009
• Docket Number: SCBD No. 5078.
• Citation: 2009 OK 81,227 P.3d 642
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Tom J. WILCOX, Respondent.
• Court: Oklahoma Supreme Court

227 P.3d 642

2009 OK 81

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Tom J. WILCOX, Respondent.

SCBD No. 5078.

Supreme Court of Oklahoma.

November 3, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

William Louis Keel, Oklahoma City, OK, for Respondent.

TAYLOR, V.C.J.

¶ 1 The Oklahoma Bar Association (OBA) initiated this proceeding under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001 & 2008 Supp., ch. 1, app. 1-A, against Tom J. Wilcox (Respondent) by filing a two-count complaint on June 2, 2005, which it later amended on September 30, 2008. In the amended complaint, the OBA alleges twelve counts of misconduct, with one of the counts containing ten subcounts. The OBA is recommending a private reprimand. The Professional Responsibility Tribunal (PRT) found generally that Respondent had violated the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, ch. 1, app. 3-A, and the RGDP and recommended a public reprimand and a one-year probation.¹

I. STANDARD OF REVIEW

¶ 2 Our review in bar disciplinary proceedings is de novo. State ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21. "The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with this Court in the exercise of our exclusive original jurisdiction in bar disciplinary matters." State ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 262. This Court's duty can only be discharged if the PRT submits a record that will allow an independent determination of the facts and the crafting of an appropriate discipline. State ex rel. Okla. Bar Ass'n v. Giger, 2001 OK 96, ¶ 6, 37 P.3d 856, 860-861. Having carefully perused the record, we conclude it is adequate for de novo consideration of the alleged misconduct notwithstanding the numerous shortcomings discussed below.

II. RECORD BEFORE THE COURT

¶ 3 In bar disciplinary proceedings, the OBA, as the complainant, has the burden of establishing facts by clear and convincing evidence that the respondent lawyer has violated the rules governing lawyers' conduct. State ex rel. Okla. Bar Ass'n v. Tweedy, 2000 OK 37, ¶ 7, 52 P.3d 1003, 1006. Clear and convincing evidence is sufficient evidence, both in quality and quantity, so as to produce a firm conviction of the truth of the allegations. See State ex rel. Okla. Bar Ass'n v. Besly, 2006 OK 18, ¶¶ 20-25, n. 9, 136 P.3d 590, 598.

¶ 4 In this case, the OBA relies almost exclusively on the stipulations to meet its burden of proof. The parties' stipulations are not binding on this Court; we review the entire record for clear and convincing evidence in support of the stipulations. Id. ¶ 2, 136 P.3d at 594; Taylor, 2003 OK 56 at ¶ 2, 71 P.3d at 21. Because stipulations are not binding on this Court, the stipulations must be supported by testimonial or documentary evidence to allow a meaningful review. See Besly, 2006 OK 18 at ¶¶ 20-25, n. 9, 136 P.3d at 598; Taylor, 2003 OK 56 at ¶ 2, 71 P.3d at 21. In order to meet its burden of proof, the OBA generally solicits testimony at the hearing before the PRT or includes documentary evidence in the record which supports the stipulations. See State ex rel. Okla. Bar Ass'n v. Wilson, 2008 OK 42, ¶ 2, 187 P.3d 708, 710; Besly, 2006 OK 18 at ¶ 3, 136 P.3d at 596. When the documentary and testimonial evidence shows conclusively and unequivocally that the stipulations are factually incorrect, this Court will reject the stipulations. See Besly, 2006 OK 18, ¶ 9, 136 P.3d at 596.

¶ 5 The stipulations here do not contain a statement of stipulated facts, but instead incorporate the allegations, and they are nothing more than Respondent's agreement to the stated allegations in the amended complaint. Many of these allegations are inconsistent with the evidence. They contain significant factual errors as well as erroneous legal conclusions.² The numerous unequivocal factual and legal errors in the stipulations here degrade the credibility, and in turn the value, of the remaining stipulations. For this reason, we reject the parties tendered stipulations as establishing the facts.

¶ 6 In addition to the stipulations, the record here contains Respondent's testimony and a box of exhibits. As to Respondent's testimony, the OBA failed to present evidence to substantiate the allegations by soliciting supporting testimony from the Respondent, but instead it abdicated its role as complainant by shifting the burden of supporting the stipulations onto Respondent's counsel. Were it not for questioning by the PRT many of the facts which direct our decision here would not have been revealed. As to the exhibits, they are unorganized, incomplete, and labeled in such a manner that, for the most part, they are not helpful in deciphering the facts. By submitting the factually and legally incorrect allegations, failing to support the stipulations with documentary and testimonial evidence, and submitting substandard exhibits, the OBA has "unnecessarily complicated our review of this case." Besly, 2006 OK 18, ¶ 4, 136 P.3d 590.³ Further complicating our review is the OBA's failure to make legal arguments in its brief to this Court which support the alleged violations.⁴ Even through there are deficiencies in the record, it contains sufficient testimonial and documentary evidence for our de novo review.

III. ALLEGED TRUST ACCOUNT VIOLATIONS

¶ 7 The following allegations are found in two counts of the amended complaint.⁵ Respondent received checks payable to him, to a client, or to both him and a client. The checks made to Respondent for attorney fees were endorsed by him and were not deposited into a trust account, checks made to Respondent and a client were endorsed by Respondent and not deposited into a trust account, and checks made to a client were not deposited into a trust account. Respondent sent postal money orders made payable to his clients. On one occasion, Respondent met a client at her bank, endorsed a check, and the funds were deposited into an account at the bank. On yet another occasion, Respondent met a client at the Oklahoma State Treasurer's office where a check made to him and a client was cashed with the client receiving his portion of the funds and Respondent receiving his attorney fees and expenses. The OBA did not allege that Respondent held a client's funds, commingled a client's funds, or misused a client's funds in any way. The stipulation is simply that Respondent received checks made to him for attorney fees, to a client, or to him and a client and failed to deposit the checks into a trust account and that he purchased postal money orders which he sent to clients.

¶ 8 At the hearing, Respondent testified that when he received funds on behalf of a client, he would give the check to the client, either by mail or in person. If the check was made to Respondent or the Respondent and a client, he would endorse the check and give it to the client.⁶ Respondent also testified that he would advance funds to his worker's compensation clients for such things as mileage and prescriptions until a final settlement. On several occasions, Respondent met a client, endorsed and cashed a check and distributed the cash to himself for his attorney fee and the remainder to the client. According to Respondent, when he advanced the funds, he would purchase a postal money order with his own money and send it to the client. He testified that he never endorsed a client's name on a check. We find Respondent's testimony at the hearing is convincing evidence of the actual facts.

¶ 9 In addition to the allegations in paragraph seven, the evidence supports the following facts concerning two temporary total disability (TTD) checks Respondent received on Leroy Sadler's behalf. About May 12, 2004, Sadler terminated Respondent as his attorney. Immediately thereafter, Respondent received two of Sadler's TTD checks totaling $1,261.36. Respondent did not notify Sadler of these checks, and Sadler's new attorney first learned Respondent was retaining these checks during the investigation of the grievance. Sadler's new attorney demanded the checks, an accounting, and Sadler's files. Respondent failed to comply with the demand. Because the two checks expired while in Respondent's custody, the worker's compensation court judge ordered that they be reissued.

¶ 10 The OBA posits that this conduct shows Respondent violated Rule 1.15(a), (b), and (c)⁷ of the ORPC and Rule 1.4⁸ of the RGDP.⁹ Rule 1.15(a) of the ORPC requires a lawyer who holds funds of a client in connection with representation to keep those funds segregated from the lawyer's own funds in an account known as a trust account. The purpose of Rule 1.15(a) is to require the same care of a lawyer when holding client funds as that of a professional fiduciary. ORPC, R. 1.15 cmt. The germane definition of "hold" is "to keep; to retain; to maintain possession of or authority over." American Heritage Dictionary 657-658 (2nd College ed.1982). Except for the two TTD checks which are discussed later, there is no evidence that Respondent held clients' funds such that he was required to deposit them in a separate trust account. Rather, the evidence is that Respondent received checks from insurers; signed checks made jointly to him; and mailed the checks to the respective client or met with the client, cashed the check, and divided the cash.

¶ 11 Turning to the postal money orders, Respondent testified that these were purchased with his own money as advances for mileage, prescriptions, and similarly related medical expenses for which the client was entitled to reimbursement. We find nothing in the Rule 1.15 of the 2001 ORPC which requires that an attorney deposit his own funds in his trust account before...