State ex rel. Oklahoma Bar Ass'n v. Hulett, SCBD No. 5350.

• Decision Date: 15 April 2008
• Docket Number: SCBD No. 5350.
• Citation: 183 P.3d 1014,2008 OK 38
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. D. Joel HULETT, Respondent.
• Court: Oklahoma Supreme Court

183 P.3d 1014

2008 OK 38

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. D. Joel HULETT, Respondent.

SCBD No. 5350.

Supreme Court of Oklahoma.

April 15, 2008.

Original Proceeding for Attorney Discipline

¶ 0 The Oklahoma Bar Association filed a two-count complaint against Respondent D. Joel Hulett under the provisions of Rule 6, Rules Governing Disciplinary Procedure, for violation of Rules 1.1, 1.3, and 1.4, Oklahoma Rules of Professional Conduct, and Rule 5.2, Rules Governing Disciplinary Proceedings, alleging client neglect and failure to respond to the Bar's notice of the grievances. The Bar and the Professional Responsibility Tribunal recommended a suspension of two years and one day. This Court agrees that Respondent's misconduct warrants discipline, although we reject the Panel's recommendation.

RESPONDENT SUSPENDED FOR THREE MONTHS AND ORDERED TO PAY COSTS.

Janna Dunagan Hall, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

D. Joel Hulett, Pro Se, Tulsa, OK, for Respondent.

OPINION

WATT, Justice.

¶ 1 On October 1, 2007, the Oklahoma Bar Association (the Bar) filed a two-count complaint against Respondent, D. Joel Hulett, alleging attorney misconduct in violation of Rules 1.1,¹ 1.3,² and 1.4,³ Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, and Rule 5.2,⁴ Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A. This disciplinary proceeding was brought under the provisions of Rule 6, RGDP, 5 O.S.2001, Ch. 1, App. 1-A.

STIPULATIONS

¶ 2 In the present case, the Bar and Hulett stipulated that Hulett violated Rules 1.3 and 1.4, ORPC, and Rule 5.2, RGDP, as to Count I, and Rules 1.1, 1.3, and 1.4, ORPC, and Rule 5.2, RGDP, as to Count II. Additionally, the Bar and Hulett stipulated to discipline of two years and one day which was also recommended by the Trial Panel. The imposition of discipline of two years and one day is tantamount to a disbarment because the same procedures for reinstatement are required. See State ex rel. Oklahoma Bar Association v. Pacenza, 2006 OK 23, 136 P.3d 616; Rule 11.1, RGDP, 5 O.S. Supp. 2002, Ch. 1, App. 1-A.⁵ The lawyer seeking reinstatement must "present stronger proof of qualifications than one seeking admission for the first time." See Rule 11.4, RGDP.

¶ 3 This Court is not bound by the stipulations of the parties, even when they stipulate to misconduct. See State ex rel. Oklahoma Bar Association v. Taylor, 2003 OK 56, 71 P.3d 18. However, a stipulation that certain rules were violated advises this Court that a respondent acknowledges participation in unethical conduct which is considered when discipline is imposed. See State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, 23 P.3d 268, citing State ex rel. Oklahoma Bar Association v. Landman, 1989 OK 162, 784 P.2d 1064, 1065.

¶ 4 Our review of the record is de novo, in which we conduct a non-deferential, full-scale examination of all relevant facts to determine if allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600, citing Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21; Rule 6.12(c), RGDP, 5 O.S.2001, Ch. 1, App. 1-A.

COUNT I

¶ 5 The Bar received a grievance against Hulett from Frank Bencker on March 12, 2007. Mr. Bencker alleged he and his wife paid Hulett to prepare a Will and Trust for them on or about November 1, 2005. Mr. Bencker alleged that he told Hulett he was preparing to have surgery at the end of that month, that he wanted to get his estate in order, and that time was of the essence. However, Hulett did not complete the work within the designated time and had not responded to Mr. Bencker's phone calls.

¶ 6 The Bar contacted Hulett by mail on March 16, 2007 and June 7, 2007, with directions to respond to Bencker's grievance by specified deadlines. Hulett failed to respond. On July 3, 2007, the Bar sent Hulett a letter by certified mail, advising him that a formal investigation had been opened. The Bar requested a response from him within five (5) days. He still failed to respond.

¶ 7 On August 3, 2007, the Professional Responsibility Commission (PRC) issued a subpoena duces tecum to Hulett, directing him to appear for a deposition on August 23, 2007. On August 21, 2007, Hulett mailed to the Benckers a complete and executed will and trust instrument, a refund of their $275.00 fee, and a letter of apology. He testified that he had previously sent the executed will and trust instruments to the Benckers on January 13, 2006, but that the documents were returned to him in the mail because the Benckers had a new address. Although he completed the work, he admitted he failed to be diligent about getting it to them.

COUNT II

¶ 8 On April 12, 2007, the Bar received a grievance from Mr. Harry Gibson, alleging Hulett's misconduct during his representation of Mr. Gibson and his wife in 2005.⁶ The Gibsons alleged they had hired Hulett to represent them in a replevin action in state court brought by Snap-On Credit, L.L.C., a secured creditor in their bankruptcy case filed in 2002.⁷ They alleged a judgment was entered against them because of Hulett's neglect of their case.

¶ 9 The Bar sent notice of the grievance to Hulett on April 19, 2007, requesting him to respond within two weeks. The next notice to Hulett was sent May 14, 2007, requesting a response within five days. Hulett sent a letter to the Bar by facsimile on May 23, 2007, stating he was placing a response in the mail that day which would fully resolve the matter and that he would update Mr. Gibson. However, Hulett failed to respond to either of the Bar's letters. On July 6, 2007, the Bar mailed a letter to Hulett advising him that a formal investigation was being opened. He was directed to respond within twenty days. Hulett still gave no response. On August 3, 2007, the Bar issued a subpoena duces tecum, directing Hulett to appear for a deposition. Hulett appeared on August 23, 2007 and testified, admitting the judgment was entered against his client as a result of his neglect.

¶ 10 The Gibsons owed Snap-On for the purchase of tools which Mr. Gibson used in his business. A reaffirmation agreement was not signed in the bankruptcy case which would have allowed the Gibsons to keep the tools as long as they continued making the payments.⁸ Hulett explained to the Gibsons that he did not do litigation, but they persisted until he agreed to make inquiries on their behalf, advise them on the law, and to intervene for them with Snap-On. He testified he attempted to work out an agreement which would allow Snap-On to repossess certain tools which were last purchased,⁹ but which would allow other tools to remain with the Gibsons. Despite making arrangements for Snap-On to obtain specific items at specific times, Hulett testified the Gibsons did not fully cooperate, having either moved the tools from the agreed location, or by failing to meet at the designated time. Hulett testified he thinks Snap-On's lawyers consequently became impatient. Snap-On filed a replevin action and filed a motion for summary judgment to which Hulett did not respond. Snap-On obtained an order for delivery and repossessed all of Mr. Gibson's tools, even those which Snap-On agreed to leave with Mr. Gibson. Hulett also testified he remembered drafting an answer on the Gibsons' behalf, but that the docket sheet showed an answer was never filed. He also stated he never looked for the answer in preparation for the hearing before the Trial Panel. Hulett testified he was unaware of the Snap-On judgment initially because his employee, a law school graduate in charge of docketing, apparently placed the motion for summary judgment in the file without docketing it. The graduate later left his firm.¹⁰ However, he admitted he never filed a motion to vacate the judgment.

FACTS

¶ 11 Hulett appeared pro se at the PRT hearing and presented no witnesses or evidence. He filed no response brief in this Court and waived his right to file a post-trial response brief. Although Hulett testified he had closed his law office and had withdrawn his website and legal advertisement, he also testified that he wished to keep his law license. He described being a member of the Bar as a source of "pride". He also testified that he anticipated the possibility of providing legal advice on contract matters in his new business pursuits of film production and fund raising. Additionally, he testified that his previous Chapter 13 bankruptcy cases, all of which have been confirmed, might require further representation for issues arising in the future. He stated he had arranged for other counsel to take all but two of his cases and expected to work out an arrangement with other lawyers for those in the near future.

¶ 12 Hulett testified that he primarily practiced bankruptcy law and that when the bankruptcy laws changed in October, 2005, he was incredibly busy. He stated he contacted everyone who had been through his office for the last five years about the changes to be sure there were no surprises and that his clients had what they needed. He lost his bankruptcy assistant during that time. He looked for other lawyers to take all of his cases. Hulett described himself during that period of time as "overwhelmed" and "burned out." He also described himself at that time as slipping deeper into an "emotional fog" or as being in a "complete frozen state." When asked what was overwhelming, he answered, "everything, every day," but could not explain it. He stated everything was "spiraling down," and he knew he needed to get away from the practice of law. It also affected his personal life and his thirty year marriage. Still, he could not point to any reason for reaching that state.

¶ 13 He testified that at his deposition the Bar's Counsel, Ms. Hall, told him about the Bar's program "Life Focus." It provides counseling...