State ex rel. Oklahoma Bar Ass'n v. Dobbs, No. OBAD 1496

• Citation: 94 P.3d 31,2004 OK 46
• Decision Date: 15 June 2004
• Docket Number: No. SCBD 4634., No. OBAD 1496
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James Mark DOBBS, Respondent.
• Court: Supreme Court of Oklahoma

94 P.3d 31

2004 OK 46

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James Mark DOBBS, Respondent.

Nos. OBAD 1496, SCBD 4634.

Supreme Court of Oklahoma.

June 15, 2004.

Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Gary Rife, Rife & Walters, Oklahoma City, OK, for Respondent.

OPALA, V.C.J.

s 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 suspension from the practice of law for two years and one day an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I INTRODUCTION TO THE RECORD

s 2 The Oklahoma Bar Association (the Bar) commenced this disciplinary proceeding on 2 July 2001 against James Mark Dobbs (respondent or Dobbs), a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6.1 of the Rules Governing Disciplinary Proceedings ("RGDP").² The complaint alleges in sixteen counts multiple violations of the RGDP and of the Oklahoma Rules of Professional Conduct ("ORPC").³ s 3 Beginning on 10 October 2002 and continuing on seven non-consecutive days through 16 November 2002,⁴ a trial panel of the Professional Responsibility Tribunal (the trial panel) conducted a hearing (the PRT hearing) to consider the charges. The parties submitted no stipulations.⁵ Respondent denies most of the allegations.

s 4 Upon completion of the hearing and after consideration of the testimony and exhibits on file, the trial panel issued a report which found that respondent violated numerous provisions of the rules of professional conduct. The panel recommended that respondent be suspended from the practice of law for thirty (30) months and that he be directed to pay the costs of this proceeding.

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

s 5 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.⁶ Its jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this state's legal practitioners.⁷ In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts,⁸ in which the conclusions and recommendations of the trial panel are neither binding nor persuasive.⁹ In this undertaking we are not restricted by the scope-of-review rules that govern corrective relief on appeal or on certiorari, proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to law-imposed standards of deference.¹⁰

s 6 The court's duty can be discharged only if the trial panel submits to us a complete record of the proceedings.¹¹ Our initial task is to ascertain whether the tendered record is sufficient to permit (a) this court's independent determination of the facts and (b) its crafting of an appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the offending lawyer.¹²

s 7 Having carefully scrutinized the record submitted to us in this proceeding, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct.

III

COUNTS 1-11: THE CARGILE MATTER

s 8 Respondent graduated from law school in 1990 and returned to Eufaula, his hometown, to set up practice. Shortly after he arrived, he was told by Joe Johnson, the mayor of Eufaula and a long-time friend, that an elderly Tulsa woman named Lucille Cargile (Mrs. Cargile) owned some vacant lots (the Cargile lots or the lots) in Eufaula and might be interested in selling them. The Bar contends that Johnson not only told respondent about the lots, but actually made an agreement with him at that time for their purchase of the lots together as partners. Respondent denies this. Whether for himself alone or on behalf of himself and Johnson, respondent telephoned Mrs. Cargile and made an offer to purchase the lots. Mrs. Cargile accepted.

s 9 Respondent soon discovered that title to the lots was not in Mrs. Cargile's name, but in the name of her deceased brother, Clarence Brand (Brand). Respondent telephoned Mrs. Cargile to inquire again into the property's ownership. Respondent testified that Mrs. Cargile insisted she was her brother's only heir and that the lots belonged solely to her. Respondent admitted at the PRT hearing that he did not ascertain whether Mrs. Cargile understood the meaning of the word "heir" and he did not explain its meaning to her. Still, he has consistently testified that he asked her specifically if she and her brother had any other siblings or if her brother had any children and she assured him there were no other siblings and no children.

s 10 On 7 January 1991 respondent brought a quiet title action on behalf of Mrs. Cargile in the District Court, McIntosh County.¹³ This was the first action respondent ever filed as a lawyer. His attempt to identify and locate heirs was confined to an examination of the county clerk's records pertaining to the lots he was purchasing. Not finding any indication of other heirs in those records, he served notice of the action by publication, signing the supporting "due diligence" affidavit himself (the "first affidavit").¹⁴ s 11 The quiet title action was heard on or about 4 March 1991. No one other than Mrs. Cargile appeared claiming to be an heir. The court found that publication notice was authorized and ordered title to the lots quieted in Mrs. Cargile. The next day, respondent mailed a copy of the journal entry to Mrs. Cargile along with his payment for the lots and a blank warranty deed for her to execute. Mrs. Cargile signed the deed, had it acknowledged, and mailed it back to respondent. For unexplained reasons, respondent did not file the deed of record until 30 January 1992.

s 12 In late 1992 or early 1993, Brenda Otis, a city employee who worked with Mayor Johnson, stopped by respondent's office and told him she was interested in purchasing the Cargile lots.¹⁵ In anticipation of a sale, respondent asked another Eufaula attorney, Fred Wendel ("Wendel"), to examine the title. Wendel did so and discovered a defect in the quiet title paperwork which would have to be cured before the property could be sold. Wendel suggested that respondent have the original quiet title judgment set aside, file an amended petition, and obtain a new judgment.

s 13 Accordingly, respondent prepared the necessary paperwork to refile the action and moved the district court to set aside the original quiet title judgment. Intending once again to serve notice by publication, respondent or a member of his office staff telephoned Mrs. Cargile and asked her if she would sign the supporting affidavit. She agreed and respondent mailed one to her. Several days later, the signed affidavit was returned to respondent's office (the "second affidavit"). Respondent's secretary, Shawn Bass Nelson, testified that she opened the envelope and saw the affidavit. It was not notarized. Respondent admits he directed Nelson, a notary public, to notarize the second affidavit even though she did not personally observe Mrs. Cargile sign it.

s 14 After Nelson notarized the second affidavit, Dobbs showed it to Wendel who was not satisfied with it. Wendel advised respondent to prepare another affidavit that would contain specific language that Wendel considered critical. The second affidavit was never filed. Respondent testified to the trial panel that he prepared a new affidavit and telephoned Mrs. Cargile again to ask her if she would sign it. He testified that Mrs. Cargile declined because of poor health, but gave him permission to sign her name to the affidavit. He did so and then notarized his own rendering of her signature (the "third affidavit"). The original judgment quieting title in Mrs. Cargile was set aside on 9 February 1993 and respondent filed the amended petition. He then filed the third affidavit in the quiet title action on 19 February 1993.

s 15 Shortly thereafter, Dobbs learned that Mrs. Cargile might not be the only living heir of her brother. Upon investigation, Dobbs discovered that there were indeed other living heirs (the Brand heirs). Dobbs testified that Wendel suggested he contact the Brand heirs and ask them if they would be willing to quitclaim their interest in the lots to him. He called on one of the potential heirs, Pat Cepowski, and discussed this option with her. Respondent testified that he left with the impression that she would execute a quitclaim deed to him and that she would obtain quitclaim deeds for him from the other Brand heirs. Respondent testified that at the time he still believed that Mrs. Cargile was the sole owner of the lots and that the Brand heirs did not actually have any interest in them.¹⁶ s 16 Instead, Cepowski and the other Brand heirs hired an attorney, Rocky Boydston (Boydston), who filed an answer to the amended quiet title petition asserting the interests of the Brand heirs in the property and pressing a counterclaim against Mrs. Cargile and unnamed others for damages for abuse of legal process. Dobbs was soon added as a party defendant to the counterclaim. The next day he asked the district court for permission to withdraw as Mrs. Cargile's attorney. Four days later, the Brand heirs dismissed Dobbs with prejudice from the action in exchange for his agreement to...