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

• Decision Date: 11 September 2007
• Docket Number: SCBD No. 5219.
• Citation: 2007 OK 65,175 P.3d 340
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Roland Vincent COMBS, III, Respondent.
• Court: Oklahoma Supreme Court

175 P.3d 340

2007 OK 65

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Roland Vincent COMBS, III, Respondent.

SCBD No. 5219.

Supreme Court of Oklahoma.

September 11, 2007.

BAR DISCIPLINARY PROCEEDING

¶ 0 In this disciplinary proceeding against a lawyer, the complaint alleges in two counts unprofessional conduct deemed to warrant disciplinary sanctions. A trial panel of the Professional Responsibility Tribunal found that respondent's actions merit the imposition of professional discipline. It recommended that respondent be suspended from the practice of law for two years and one day and that he pay the costs of this proceeding. Upon de novo review of the evidentiary materials presented to the trial panel,

RESPONDENT IS ORDERED DISCIPLINED BY SUSPENSION FOR A PERIOD OF NINETY DAYS AND DIRECTED TO PAY THE COSTS OF THIS PROCEEDING. THE LATTER SHALL BE DUE NOT LATER THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.

Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Jack S. Dawson, Esq., Oklahoma City, OK, for Respondent.

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 suspension for two years and one day together with the payment of costs an appropriate disciplinary sanction for respondent's breach of acceptable professional demeanor? We answer the first question in the affirmative and the second in the negative.

I INTRODUCTION TO THE RECORD

¶ 2 The Oklahoma Bar Association (Bar) commenced this disciplinary proceeding on 25 August 2006 against Roland Vincent Combs (respondent or Combs), 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 two counts violations of the RGDP and of the Oklahoma Rules of Professional Conduct (ORPC).³ A trial panel of the Professional Responsibility Tribunal (the trial panel or panel) conducted hearings (the PRT hearings) on 14 November 2006 and 29 November 2006. The parties submitted no stipulations.

¶ 3 Upon conclusion of the hearing and after consideration of the testimony and admitted exhibits, the trial panel issued its report finding that respondent violated certain provisions of the rules of professional conduct. The panel recommended that the respondent be suspended from the practice of law for two years and one day and that he pay the costs taxed in this proceeding.

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 the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.⁴ 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.⁵ 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, non-deferential, de novo examination into all relevant facts,⁶ in which the conclusions and recommendations of the trial panel are neither binding nor persuasive.⁷ 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 that test the legal correctness of a lower tribunal's fact findings.⁸

¶ 5 The court's duty can fully be discharged only if the trial panel submits a complete record of the proceedings.⁹ 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.¹⁰

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

III THE CHARGES AGAINST RESPONDENT

A. Count I — The Randles Complaint

¶ 7 In August of 2004 Kenard Randles (Randles) hired the respondent Combs to probate the estate of his deceased wife, Pamela Randles, and paid Combs a retainer of $1,800. Randles was not named the personal representative in his wife's will. It was Mr. Anthony Jameson (Jameson), the decedent's brother, who was appointed personal representative of the estate.¹¹

¶ 8 In connection with the estate's probate Combs brought suit for the wrongful death of the decedent and entered into a contingent fee agreement with Jameson under which 35% of any funds collected would be retained by Combs and the remaining 65% would be deposited to the estate's credit. Combs settled the wrongful death claim for $10,000. Of the total amount recovered, $3,500 belonged to Combs and $6,500 to the estate.

¶ 9 A minimum balance of $6,500 should have remained in Combs' trust account as the amount belonging to the estate of Pamela Randles. The recovered $10,000 was deposited in Combs' trust account in early May 2005. Within that month the balance in the trust account dropped to $500.73. During the month of June 2005 Combs' trust account balance fell as low as $31.31. The $6,500 due the estate was paid in June of 2006, after the Bar had begun investigating Combs' trust account handling in connection with this and another complaint.

¶ 10 Combs fully admits to and apologizes for withdrawing an excessive amount of money from the trust account and placing it in his operating account. During the time the balance fell below $6,500 Combs states that he was involved in activities connected with the opening a law office in Dallas, Texas and spent a considerable amount of time away from his Oklahoma City office. Combs testified that he relied on his Oklahoma City staff to deal with certain office affairs and stated that the removal of excessive funds from the trust account was caused by an error in communication between him and his staff by which he was led to believe he was entitled to the money as a fee. The staff testified that Combs was notified of the error within two months of the occurrence. Combs contends that he was not informed until much later, although the specific time frame within which he acquired the knowledge was not revealed.

¶ 11 Jameson testified that he phoned Combs periodically to inquire about the status of the account and of the estate and was told Combs was continuing to work on the matter. Jameson believed the $6,500 had been continuously maintained in the trust account.¹²

¶ 12 In relation to count one the Bar alleges violations of the provisions of ORPC Rule 1.15,¹³ ORPC Rule 8.1(b),¹⁴ ORPC Rule 8.4(a),¹⁵ ORPC Rule 8.4(c),¹⁶ RGDP Rule 1.3,¹⁷ RGDP Rule 1.4,¹⁸ and RGDP Rule 5.2.¹⁹

¶ 13 Combs admits to a violation of ORPC Rule 1.15 (mishandling of funds) and in essence, concurrently with the specified admission, also admits to violating ORPC Rule 8.4(a), RGDP Rule 1.3, and RGDP Rule 1.4(b). We accept Combs' admission and find from clear and convincing evidence that his conduct, which violated those rules, constitutes grounds for the imposition of professional discipline. We employ three different culpability standards in evaluating mishandling of funds. Those are called (1) commingling;²⁰ (2) simple conversion;²¹ and (3) misappropriation, i.e., "theft by conversion or otherwise."²² The degree of culpability ascends from the first to the last. Each must be proved by clear and convincing evidence.²³

¶ 14 Commingling occurs when the client's funds are combined with the lawyer's personal funds. Complete separation of a client's money from that of the lawyer's is the only way for maintaining proper accounting.²⁴ When an attorney receives money, part of which is to be paid to a third person and part of which is for the lawyer's fee, all the funds not clearly identifiable as those of the lawyer must be kept separate.²⁵

¶ 15 The second level of culpability is simple conversion. Rule 1.4(b) establishes that simple conversion occurs when an attorney applies a client's money to a purpose other than that for which it came to be entrusted to the lawyer.²⁶

¶ 16 The third level of culpability is misappropriation, i.e. "theft by conversion or otherwise." This occurs when an attorney has purposely deprived a client of money through deceit and fraud.²⁷ A lawyer found guilty of intentionally inflicting grave economic harm in mishandling clients' funds is deemed to have committed this most grievous degree of offense.²⁸ A finding that the attorney did so intentionally, regardless of exceptional mitigating factors,²⁹ mandates the imposition of harsh discipline — i.e. disbarment.³⁰

¶ 17 The Bar and the trial panel viewed Combs' conduct as rising to the third level of culpability — to that of misappropriation. We disagree. There is no evidence that Combs purposely deprived Jameson of the funds by deceit or fraud or that Combs intentionally inflicted on Jameson grave economic harm. There is an admission of guilt and evidence supporting culpability for commingling and simple conversion. Combs transferred the money from the trust account to his operating account and used the money for personal expenses.

¶ 18 A violation of ORPC Rule 8.1(b) (a knowing failure to respond to a demand for information in a disciplinary matter) has been charged by the Bar. The trial panel did not rule on a violation of ORPC Rule 8.1(b) and Combs...