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

• Decision Date: 29 April 2008
• Docket Number: SCBD No. 5091.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Gregory Scott WILSON, Respondent.
• Court: Oklahoma Supreme Court

187 P.3d 708

2008 OK 42

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Gregory Scott WILSON, Respondent.

SCBD No. 5091.

Supreme Court of Oklahoma.

April 29, 2008.

Original Proceeding for Lawyer Discipline

¶ 0 The Oklahoma Bar Association brings this disciplinary proceeding pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (2001 & Supp.2007). The Professional Responsibility Tribunal found that the respondent had violated the rules governing a lawyer's conduct and recommended that he be suspended from the practice of law for one year.

RESPONDENT SUSPENDED FOR ONE YEAR.

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

Benjamin McCullar, Shawnee, Oklahoma, for Respondent.

COLBERT, J.

¶ 1 Gregory Scott Wilson (Respondent) was admitted to the Oklahoma Bar Association in April 1998. The Bar alleges in one count in this disciplinary proceeding that Respondent violated the Oklahoma Rules of Professional Conduct (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (2001 & Supp.2007), and the Oklahoma Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit. 5, ch. 1, app. 1-A (2001 & Supp.2007).¹ The Bar has accused Respondent of forging a client's name to a settlement check and commingling and converting client trust funds.

¶ 2 Following a hearing, the Professional Responsibility Tribunal (PRT) concluded that the Bar failed to establish forgery, but proved by clear and convincing evidence that Respondent commingled and converted client trust funds. The PRT also concluded that Respondent's ignorance of the proper management of a client trust fund amounted to incompetent representation and that he had improperly loaned funds to a client. The PRT recommended a one year suspension, a recommendation joined by the Bar. Respondent requests a period of supervised probation in lieu of suspension because of mitigating factors.

BACKGROUND

¶ 3 The parties have stipulated to 18 pages of facts. Respondent has also admitted that he violated Rules 1.15² and 8.4,³ ORPC, and Rule 1.4,⁴ RGDP.

Misconduct

¶ 4 On July 28, 2000, Stella Jay filed a lawsuit against Ryan Green and Carl Green for injuries she suffered in two unrelated auto accidents occurring within two hours on the same day, August 3, 1998. Ms. Jay incurred medical bills as a result totaling $45,777.61. Ryan Green and Carl Green (who are apparently un-related) were the at-fault drivers in the two accidents.

¶ 5 Ms. Jay dismissed the attorney who initially represented her in the lawsuit and retained Respondent. Respondent filed his entry of appearance on September 18, 2000. Nothing relevant to this matter occurred until January 2002 when Respondent received two settlement checks from the liability insurers.

¶ 6 Respondent received a $10,000 check from Ryan Green's insurer and deposited the check into his trust account on January 7, 2002. The check was made payable to Ms. Jay and Respondent. Ms. Jay would have testified, if called, that she did not sign the check, was not notified of its receipt or deposit, and did not authorize Respondent to sign the check on her behalf. Respondent stipulated and testified that he notified Ms. Jay of the settlement and his receipt of the check and that she authorized him to place a representation of her signature on the check and deposit it.

¶ 7 Respondent received a $25,000 check from Carl Green's insurer on January 24, 2002. He deposited that check, made payable to Ms. Jay and Respondent among others, into his trust account without any endorsements. As of January 24, 2002, therefore, Respondent had received $35,000 on Ms. Jay's behalf and deposited those funds in his trust account, less his attorney fee of $14,000 (40%). Because Ms. Jay's accumulated medical bills exceeded the settlements with the two liability insurers, Respondent did not distribute the proceeds in the hope of recovering additional funds from the UM carrier.

¶ 8 On May 27, 2003, Respondent filed a lawsuit for breach of the duty of good faith and fair dealing on Ms. Jay's behalf against the UM carrier, GHS Property and Casualty Insurance Company. Ms. Jay settled her claim against GHS for $100,000 following mediation on that same day. Respondent received the first of two GHS checks, payable to Ms. Jay and Respondent, on June 30, 2003. Ms. Jay endorsed the $54,222.39 check and Respondent deposited it into his trust account.

¶ 9 Respondent immediately began disbursing the funds. All disbursements were from Respondent's trust account unless otherwise noted. He gave Ms. Jay a $1,500 check on June 30, 2003, and paid Oklahoma Mediation $615.62 on July 9, 2003. Respondent gave Ms. Jay a second check for $1,000 on July 23, 2003. On August 2, 2003, Respondent gave Ms. Jay a personal check for $500 because he did not have his trust account checkbook with him when he met with her away from his office.⁵ Respondent gave Ms. Jay two additional trust account checks on August 4, 2003: for $19,862.67 and $2,138. That same day, he paid Ms. Jay's ex-husband $2,000 to settle his claim.⁶

¶ 10 Respondent received a second GHS check for $45,777.61 on August 28, 2003. Ms. Jay gave Respondent permission to endorse this check and place it in his trust account. Respondent issued a check for $19,516.61 to Ms. Jay on August 29, 2003.

¶ 11 Ms. Jay still had outstanding medical liens of $45,777.61. Respondent filed a motion to extinguish the liens on August 29, 2003. He argued that the liens were time-barred and, in any event, applied only to the $21,000 Ms. Jay received from the liability insurers (net of his attorney fee). Only four providers, with liens totaling $25,737.56, appeared at the hearing on September 18, 2003. The judge noted that those four providers would receive about 82% of the total amount of each lien when the $21,000 was distributed. The judge also entered an order extinguishing the remaining liens. When the lienholders' attorney said he thought he could get the lienholders to waive the balance of their liens if they received the $21,000 immediately, Respondent wrote a check for that amount from his operating account. He subsequently reimbursed his operating account from the trust account.

¶ 12 According to Ms. Jay, Respondent repeatedly told her that all of her medical bills would "be taken care of." Respondent, on the other hand, denied this and stated that he told her she still owed the medical providers a balance of $4,737.56 and that she should wait to see if they would waive the rest.

¶ 13 When Respondent informed Ms. Jay that the medical providers refused to waive the balance, she became upset. At that point she filed her complaint with the Bar. The medical providers ultimately filed suit against Ms. Jay, but their lawsuit was dismissed with prejudice and Ms. Jay was never required to pay the balance. Respondent did not delay any payments to Ms. Jay and she was not otherwise economically harmed by his actions.

¶ 14 The parties stipulated, however, that a problem with Respondent's trust account came to light during the investigation of Ms. Jay's complaint. Because Ms. Jay had not received any portion of the settlements with the two liability insurers in early 2002, $21,000 should have remained in Respondent's trust account until he began disbursing the proceeds. On August 29, 2002, Respondent paid a medical provider $378.50 on Ms. Jay's behalf, leaving $20,621.50 that should have remained in the trust account. On December 28, 2002, Respondent paid another medical provider $1,032 on Ms. Jay's behalf, leaving $19,589.50 that should have remained in the trust account. No other payments were made to Ms. Jay or on her behalf until June 30, 2003. In August 2002, however, the trust account balance fell and stayed below the required minimum until Respondent received the first check from GHS on June 30, 2003. Indeed, the monthend balance was below $1,000 at least three times and the account was charged seven times for insufficient funds in June 2003.⁷ Respondent admitted he transferred money from his trust account to his operating account to cover business expenses and overhead.

Enhancement

¶ 15 The parties also stipulated to the circumstances leading to the private reprimand previously levied against Respondent:

Respondent was hired by Cindy and Brian Schnackel in September, 2002, to file a breach of contract and fraud claim against a homebuilder. On January 21, 2003, the Schnackels terminated Respondent's services because Respondent was difficult to communicate with. Thereafter, despite knowing that he had been terminated, Respondent filed a lawsuit on the Schnackels' behalf. Moreover, Respondent attached a verification to the Petition upon which Respondent signed Brian Schnackel's name and directed his secretary to sign Cindy Schnackel's name. Respondent then had the same secretary notarize both false signatures.

The Bar recognized that Respondent's actions under scrutiny here took place before the actions that led to the prior discipline and that, since receiving the private reprimand, "Respondent has not signed the name of any client on any document," "has taken his ethical obligations to his clients seriously and has worked diligently to act in a professional manner to avoid further professional discipline and elevate the legal profession."

Mitigation

¶ 16 The Bar and Respondent also stipulated to numerous facts in mitigation. Respondent responded in a timely manner when the grievance was filed and cooperated fully throughout the investigation. An audit of Respondent's 32 other personal injury cases determined that the trust account irregularities were limited to Ms. Jay's case. The parties also stipulated that Ms. Jay received $44,517.28 in settlement proceeds and that Respondent's advocacy resulted in her receiving over $43,000 more than she would have received otherwise. Respondent's actions did not deprive Ms....