State ex rel. Oklahoma Bar Ass'n v. Wilkins, 4024

• Citation: 898 P.2d 147,1995 OK 59
• Decision Date: 07 June 1995
• Docket Number: No. 4024,4024
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jack B. WILKINS, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 147

898 P.2d 147

1995 OK 59

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jack B. WILKINS, Respondent.

SCBD No. 4024.

Supreme Court of Oklahoma.

June 7, 1995.

Original proceeding for attorney discipline.

Complainant Oklahoma Bar Association alleged professional misconduct by Respondent warranting disciplinary proceedings. Professional Responsibility Tribunal found Respondent violated Rules 1.15(a) and (b) and 8.4(c) of the Rules of Professional Responsibility, Okla.Stat. tit. 5, ch. 1, app. 3-A (1991), recommended dismissing Count II, and recommended the Respondent be suspended from the practice of law for one year and be assessed costs.

ATTORNEY SUSPENDED FROM THE PRACTICE OF LAW FOR SIX MONTHS AND ORDERED TO PAY COSTS.

Allen J. Welch, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Richard A. Nelson, Oklahoma City, for respondent.

HODGES, Justice.

The Complainant, Oklahoma Bar Association (OBA), filed a complaint against the Respondent, Jack B. Wilkins, alleging the Respondent had violated rule 1.4 of the Rules Governing Disciplinary Proceedings, Okla.Stat. tit. 5, ch. 1, app. 1-A (1991), and rules 1.15 and 8.4 of the Rules of Professional Conduct, Okla.Stat. tit. 5, ch. 1, app. 3A (1991). The complaint consisted of two counts.

FACTS

The OBA and the Respondent stipulated to the following facts. As to Count I, Ms. C retained Respondent to collect back child support beginning in July 1987. Ms. C continues to retain Respondent for the same purpose. On February 24, 1993, Respondent received $500 from Ms. C's former husband. On April 5, 1993, Respondent wrote a check to Ms. C. The check was returned for insufficient funds. On May 14, 1993, Respondent gave Ms. C a cashier's check to replace the returned check.

The record supports these stipulations. Other pertinent facts are contained in the record. After Respondent replaced the returned check with the cashier's check, Ms. C cashed the personal check and retained the funds from both. Respondent received a payment on September 15, 1993, and did not pay Ms. C until October 21, 1993. During the hearing, Respondent admitted that he did not always promptly notify Ms. C when he received payments from her ex-husband. Twice Respondent could not determine when he received the payments.

Copies of Respondent's bank statements for his trust account show that he was overdrawn from January 12, 1993, until January 25, 1993. During this time, Respondent wrote four checks for which there were insufficient funds. In February 1993, Respondent wrote two checks for which there were insufficient funds. In March, Respondent was overdrawn twice and wrote two checks for which there were insufficient funds. In April, Respondent wrote four checks for which he did not have the funds in the account and was overdrawn from April 6 until April 23. In May of 1993, Respondent was overdrawn from the twelfth until the twenty-seventh. Respondent admitted that his record keeping was "slip shod" during this time.

As to Count II involving Mr. J, the parties stipulated to the following facts. In 1988, Respondent represented Mr. J in a criminal matter. In 1991, Mr. J still owed Respondent attorney fees for representation in the criminal matter. In July 1991, Mr. J retained Mr. J and Respondent executed a written contract. There was nothing in the contract regarding the $3,500 unpaid fee from the prior representation in the criminal matter. The contract provided Mr. J would receive 60% of any recovery and the remaining 40% would be retained by Respondent. Respondent, on behalf of Mr. J, settled the claim for $10,500. Mr. J signed a release of all claims.

Respondent to represent him for injuries resulting from an automobile accident.

The parties further stipulated on December 18, 1991, Respondent paid Mr. J $3,000.00 and retained $4,200.00 from the settlement. At the time of the settlement, Mr. J owed three different medical providers as a result of his injuries. Southwest Physical was paid in full an amount of $1,570.40 on January 19, 1994. Association Orthopedics, Inc., was paid in full an amount of $789.00 on January 18, 1994. Dr. Steven Watson, D.O., was paid $1,000.00 on September 19, 1994. Dr. Watson is still owed $1,560.00.

Although not stipulated, these payments were made on advice of Respondent's attorney and after Respondent was aware of a complaint against him with the OBA. After deducting the medical bills that Respondent paid from the settlement, Respondent still retains $348.36 ¹ of the 60% of the settlement owed Mr. J. The record further shows that Mr. J called Respondent on several occasions and sent him a letter about the medical bills. Respondent did not return the calls or respond to the letter.

Mr. J testified Respondent agreed to pay the medical bills. Respondent testified he called Mr. J with the $10,500.00 settlement offer. Respondent stated, "[Y]ou know, that would put $3,000 in your pocket, take care of all the prior bills and everything." Mr. R, a friend of Mr. J's went with him to get the settlement check from the Respondent. Mr. R testified the Respondent explained to Mr. J that the $3,000 was Mr. J's share after the medical bills were paid. Mr. R stated Respondent told Mr. J all the bills would be paid.

The evidence regarding the other allegations is conflicting. The OBA alleged Respondent intentionally concealed the amount of the settlement from Mr. J and refused to allow Mr. J to see the front of the settlement check. Respondent denied this statement was true. The record reflects that Mr. J has limited reading ability and that he tries to conceal this limitation. The testimony is conflicting as to whether Respondent knew of Mr. J's limitations during his representation of Mr. J. Although the OBA did not show by clear and convincing evidence Respondent refused to allow Mr. J to see the settlement check or Respondent knew of Mr. J's limitations, the other allegations regarding Count II are supported by the record.

RECOMMENDATIONS AND FINDINGS OF THE PROFESSIONAL

RESPONSIBILITY TRIBUNAL

After reviewing the record and taking testimony, the Professional Responsibility Tribunal (PRT) found Respondent had violated the Rules of Professional Conduct, specifically rule 1.15(a) by commingling his money with a client's, rule 1.15(b) by failing to notify and remit payments made for his client's benefit, and rule 8.4(c) by converting his

client's money to his own use. The PRT recommended Count II should be dismissed because the complainant had failed to meet its burden of proof. The PRT recommended Respondent should be suspended from the practice of law for one year and be assessed costs.

STANDARD OF REVIEW

This Court will review the record de novo and is not bound by the recommendation of the PRT. State ex rel. Okla. Bar Ass'n v. Rozin, 824 P.2d 1127, 1130 (Okla.1991). Even though this Court is not required to follow the recommendations of the PRT, the PRT's recommendation is accorded great weight because of the PRT's unique position. Id. This Court will not impose discipline absent clear and convincing evidence of a violation of the rules governing attorneys. State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 895, n. 6 (Okla.1989).

VIOLATION OF RULES OF PROFESSIONAL CONDUCT AND RULES

GOVERNING DISCIPLINARY PROCEEDINGS

A. RULE 1.4 OF THE RULES OF PROFESSIONAL CONDUCT

Rule 1.4 of the Rules of Professional Conduct provides: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Respondent admitted he did not always promptly inform Ms. C about child support payments. In fact, on at least two occasions, Respondent took several weeks to inform Ms. C of a support payment and to disburse her share of the funds.

As to Count II, Respondent agreed to pay Mr. J's medical bills. Mr. J called Respondent about the payment of those bills. Respondent admitted he did not return the call or respond to Mr. J's letter. Respondent failed to promptly pay the medical bills and did not inform Mr. J of this failure. Respondent's failure to keep his client reasonably informed and to comply with requests for information is a violation of rule 1.4 of the Rules of Professional Conduct.

In State ex rel. Okla. Bar Ass'n v. Thompson, 864 P.2d 339 (Okla.1993), an attorney was suspended from the practice of law for 90 days for, among other things, failing to keep his client adequately informed. In State ex rel. Okla. Bar Ass'n v. Wolfe, 864 P.2d 335 (Okla.1993), this Court suspended an attorney for six months for failing to keep clients informed, failing to adequately represent a clients interest, and failing to cooperate with the OBA's investigation. A four-month suspension was deemed the proper discipline in State ex rel. Okla. Bar Ass'n v. Johnston, 863 P.2d 1136 (Okla.1993), for failing to communicate with clients and to act promptly in their behalf, commingling and conversion of funds, making a false statement to the court, and acting incompetently.

B. RULE 1.15(a) OF THE RULES OF PROFESSIONAL CONDUCT

Rule 1.15(a) provides: "A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with representation separate from the lawyer's own property." This provision prohibits an attorney from commingling a client's funds with the attorney's funds. State ex rel. Okla. Bar Ass'n v. Johnston, 863 P.2d 1136 (Okla.1993).

In this case Respondent's trust account was overdrawn at least several times between January and May of 1993. Respondent wrote a check on his trust account to Ms. C for her share of the child support payment which was returned for insufficient funds. Since the money was not in the trust account, it must have been diverted for other purposes. Respondent then paid her with a cashier's check from his personal funds. Respondent acknowledged it was safe to assume Ms. C's share was used for some purpose other...