State ex rel. Oklahoma Bar Ass'n v. Taylor, SCBD-4466.

• Decision Date: 09 May 2000
• Docket Number: No. SCBD-4466.,SCBD-4466.
• Citation: 4 P.3d 1242,2000 OK 35
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael C. TAYLOR, Respondent.
• Court: Oklahoma Supreme Court

4 P.3d 1242

2000 OK 35

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael C. TAYLOR, Respondent.

No. SCBD-4466.

Supreme Court of Oklahoma.

May 9, 2000.

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

Michael C. Taylor, pro se, Tulsa, Oklahoma, for respondent.

BAR DISCIPLINARY PROCEEDING

OPALA, J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition?¹ and (2) Is a thirty-day suspension an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I INTRODUCTION TO THE RECORD

¶ 2 The Oklahoma Bar Association [Bar] charged Michael C. Taylor [Taylor or respondent], a licensed lawyer from Tulsa, Oklahoma, with one count of professional misconduct.² The parties' stipulation on file consists of stipulated facts, conclusions of law and agreed factors to be considered in mitigation of the discipline to be imposed. Left unresolved was the discipline to be recommended. Respondent admitted to having violated Rules 1.15(b)(c),³ 5.3,⁴ 8.1(b),⁵ and 8.4(a)(c),⁶ Oklahoma Rules of Professional Conduct [ORPC] and Rules 1.3⁷ and 5.2,⁸ Rules Governing Disciplinary Proceedings [RGDP]. At the end of the hearing, the Professional Responsibility Tribunal [PRT or trial panel] directed the parties to offer a brief suggesting the discipline to be visited.

¶ 3 Following receipt of the parties' briefs and upon consideration of the stipulations and testimony on file the trial panel issued a report with its findings of fact and conclusions of law together with a recommendation for discipline. In accord with the parties' stipulations, the trial panel found that Taylor had violated ORPC Rules 1.15(b)(c), 5.3, 8.1(b), and 8.4(a)(c), and RGDP Rules 1.3 and 5.2. It recommended that Taylor be publicly censured and that he bear the costs of the proceedings.

II THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 4 In a bar disciplinary proceeding this court functions in an adjudicative capacity as a licensing organ of the State vested with exclusive original jurisdiction.⁹ Its authority rests on the constitutionally invested nondelegable power to regulate the practice of law, which includes the ethics, licensure, and discipline of legal practitioners in this state.¹⁰ Before deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, this court conducts a nondeferential, full-scale, de novo examination of all relevant facts,¹¹ in the consideration of which the recommendations of the trial panel are neither binding nor persuasive.¹² We are not guided here by the standard-of-review criteria applicable in the context of corrective process on appeal or on certiorari. In the latter categories we may be compelled by the law's mandated deference to leave undisturbed another tribunal's findings of fact.¹³

¶ 5 This court can discharge its duty only if the trial panel submits a complete record of the proceedings.¹⁴ Our initial task is to ascertain whether the materials are sufficient to permit (a) an independent determination of the critical facts and (b) the crafting of an appropriate measure of discipline. The latter task is to be guided by (1) what is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) what discipline avoids the vice of visiting disparate treatment on the respondent-lawyer.¹⁵

¶ 6 Taylor has admitted, and the proof supports, the charge of professional misconduct. Upon consideration of the record, we conclude that its contents are adequate for this court's de novo consideration of respondent's professional misconduct.

III THE CHARGES LODGED AGAINST THE RESPONDENT

¶ 7 The alleged misconduct occurred during respondent's representation of Shelby Deason and her two minor children [Deason or client], who were injured on 6 May 1998 in an automobile accident. From May through August of 1998 the Deasons received medical treatment from Dr. Gregg Alan Coker. On August 19 he sent to Prudential Insurance a final billing statement for his services in the amount of $890. Respondent settled the case with the insurer for $911.75.

¶ 8 On 2 November 1998 Prudential Insurance sent to Taylor three checks made payable to Dr. Coker, Taylor, and Deason totaling $911.75. Respondent did not notify Dr. Coker about the settlement checks. Instead, on November 9 respondent's employee (and wife), Mrs. Taylor, endorsed the names of Dr. Coker, Taylor, and that of the client on the three checks and deposited them in his trust account. Dr. Coker's name was signed without his knowledge or consent.

¶ 9 Dr. Coker's office manager (and wife), Kat Coker, would testify that on 10 December 1998 she was advised by Prudential Insurance that the Deason case had been settled and that payment had been sent to respondent. Mrs. Coker called respondent's office the same day to find out the status of the settlement check. She was informed by a temporary employee in respondent's office that they were waiting for Deason to sign the release. On 5 January 1999 she was again advised by the same employee that they were waiting on the client's signature before the funds could be disbursed.

¶ 10 Mrs. Coker's January 6 letter to Deason informed her that (a) respondent had been holding the settlement check for two months and that the physician's office had not been paid, (b) that respondent's employee told her they were trying to obtain her signature on the release so that funds could be disbursed, (c) and that unless Dr. Coker received full payment on January 20, a small claims action would be filed against Deason. A copy of the letter was sent to respondent. Two days later, Dr. Coker's office received an undated letter from respondent along with a check dated 9 November 1998 drawn on his trust account for $586.83 with a notation "part. pay Deason family." Respondent's letter neither addressed the two-month delay in sending payment nor explained how the settlement checks were negotiated without Dr. Coker's signature.

¶ 11 Mrs. Coker would testify that after checking with Prudential Insurance and determining that Dr. Coker was shown as a payee on the checks, she wrote (a) "VOID— NOT ACCEPTABLE" on respondent's letter and (b) "VOID" across the front of the respondent's check and returned both items to the latter. She again advised Deason that partial payment was not acceptable. On January 20 Dr. Coker received from Prudential Insurance copies of the negotiated settlement checks, discovering that three checks, not one, had been issued. The copies showed the endorsement of the payees' names on the back of the checks. Later that day Mrs. Coker called respondent's office and left a message that unless full payment was received by the end of the day, a complaint would be filed against him. Respondent did not comply with her demand.

¶ 12 On January 27 the Bar received from Dr. Coker a written grievance alleging (a) respondent failed to notify him upon receipt of settlement funds, (b) his office misrepresented the status of funds' disbursement, and (c) he forged Dr. Coker's signature on the settlement checks. The Bar advised the respondent by letter dated February 11 that a formal investigation had commenced and that he had 20 days to respond. When respondent did not timely answer, the Bar sent on March 15 a certified letter, informing him that failure to respond within five days would result in the issuance of a subpoena. In a letter to the Bar, dated March 15 but received March 17, respondent denied any wrongdoing, but failed, though he had been requested so to do, to address the applicability to his actions of ORPC Rules 1.15 and 8.1(a)(b)(c) and of RGDP Rule 1.4.

¶ 13 In a March 15 letter to Dr. Coker, respondent tendered another check for $586.83 drawn on his trust account, stating that the amount represents the "net remainder" of the settlement proceeds. His letter explained that because an attorney's lien is superior to that by a physician, it was not "unlawful, unethical nor improper" to deposit the settlement check in the trust account and to pay the "appropriate and lawful costs and fees" due in the case.¹⁶ The letter did not explain (a) respondent's failure to send the November 9th check until some two months later, (b) the misrepresentations made by respondent's office regarding the status of the settlement distributions and (b) why Dr. Coker's signatures were placed on the back of the three checks without his authorization.

¶ 14 Respondent's June 21 letter to the Bar advised that he made four disbursements from the settlement proceeds for (a) an attorney's (referral) fee to Mark Harper ($101.97), (b) his counsel fee ($203.95), (c) costs (25.00) and (d) then "sent 100% of the remainder to Dr. Coker's office on the same day" ($586.83), referring to November 9, the day that respondent's checks were written and deposited to his operating account. In response to the Bar's query about the different signature styles on the back of the checks, respondent explained that because his bank would become concerned if all the endorsements on the checks appeared to be in the same handwriting, he avoided the problem by "altering the handwriting styles." This was done, he explained, not to perpetrate any fraud but merely to facilitate getting the funds deposited and then placed in the hands of the clients and medical providers. Respondent's letter failed to advise the Bar that although four checks were written on November 9, respondent's checks for attorney's fee and costs were deposited that day, but the checks to Dr....