State ex rel. Oklahoma Bar Ass'n v. Gasaway, 3646

• Decision Date: 02 April 1991
• Docket Number: No. 3646,3646
• Citation: 810 P.2d 826,1991 OK 33
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Don E. GASAWAY, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 826

810 P.2d 826

1991 OK 33

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Don E. GASAWAY, Respondent.

SCBD No. 3646.

Supreme Court of Oklahoma.

April 2, 1991.

As Corrected May 3, 1991.

Rehearing Denied May 6, 1991.

Bar Discipline Proceeding

The complainant, Oklahoma Bar Association (Bar Association), alleged two counts of misconduct by the respondent, Don E. Gasaway (Gasaway). The trial panel found that the respondent: 1) commingled client funds with his own and used client monies for purposes other than those authorized; and 2) failed to make a full and fair disclosure to the Bar Association concerning the grievance. The trial panel recommended a minimum suspension of six months and supervision by a lawyer-certified public accountant upon readmission. We find that the Bar Association established by clear and convincing evidence that Gasaway commingled and misused client funds, and that he failed to fully and fairly respond to a bar complaint. This conduct warrants a one-year suspension, imposition of costs in the sum of $4,657.06, and supervision upon reinstatement by a lawyer-certified public accountant to review trust account records and report compliance with all trust account regulations.

RESPONDENT SUSPENDED; COSTS IMPOSED; SUPERVISION UPON REINSTATEMENT.

John E. Douglas, Asst. General Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Robert G. Green, Tulsa, for respondent.

KAUGER, Justice.

In this disciplinary proceeding, the complainant, Oklahoma Bar Association (Bar Association), alleges two counts of misconduct by the respondent, Don E. Gasaway (Gasaway). The first count relates to the misuse of a client's funds through commingling and misapplication of the monies. ¹ The second count involves the failure of Gasaway to fully and fairly disclose all the relevant facts and circumstances surrounding the grievance. ² We find that the Bar Association established by clear and convincing evidence that Gasaway commingled and misused client funds, and that he failed to fully and fairly respond to a Bar complaint. This conduct warrants a one-year suspension, imposition of costs in the sum of $4,657.06, and supervision upon reinstatement by a lawyer-certified public accountant to ensure that the rules relating to trust accounts are followed. ³

FACTS

Gasaway is a duly licensed attorney and a member of the Oklahoma Bar Association. In an attempt to collect Rubin's client's claim, Gasaway filed suit against the debtor, Anderson All Wheel Drive & Equipment Company of Tulsa (debtor/Anderson All Wheel Drive), in January of 1988. That same month, Rubin's client called to inform him that the debtor wanted to satisfy the claim by turning over two checks for the full amount owing. The client asked whether he should accept the checks. Rubin spoke with Gasaway on January 15, 1988. Gasaway informed Rubin that he would pick up the checks from the debtor. On January 19th, Gasaway called Rubin to confirm he had the checks and was depositing them. Gasaway deposited the checks to his trust account. Rubin testified that he expected Gasaway to wait approximately fourteen days before remitting to allow the checks to clear.

When Rubin had not received a settlement by February 10th, he called Gasaway and was informed that the check would be mailed that day. The check did not arrive and Gasaway refused to return Rubin's calls. On March 2nd, Gasaway's secretary told Rubin that the check had been mailed the previous day. Rubin finally received two checks drawn on Gasaway's trust account on March 15th--one for $6,454 and one for $22,256.86. ⁴ In the interim between March 2nd and March 15th, Rubin again had been unsuccessful in getting Gasaway to either take his calls when they were made or to return the calls.

Rubin deposited the checks received from Gasaway and was informed by the bank that the check for $22,256.86 had been returned for insufficient funds. Rubin immediately contacted Gasaway and demanded a cashier's check. Gasaway told Rubin that he could not provide him with a cashier's check because he did not have funds to purchase one. He asserted that the check would not clear because another check--not the one received on behalf of Rubin's client--had been returned for insufficient funds. Gasaway also told Rubin that he was leaving on vacation. On March 29, 1989, Rubin wrote Gasaway informing him that if he did not immediately receive a certified check or wire transfer of the funds, he would file suit in Oklahoma. Gasaway wired the funds to Rubin on April 18, 1989--eighty-nine days after Rubin's client's check had been deposited in Gasaway's trust account.

On May 1, 1989, Rubin filed a grievance against Gasaway with the Bar Association. When the Bar Association requested a response to the grievance, Gasaway provided them with a copy of a letter he had sent to the General Bar Association ⁵ indicating that the check to Rubin did not clear his account because a stop payment order had been placed on a check for $14,317.75. ⁶ However, Gasaway's bank records and a summary done by a certified public accountant indicate that the balance in Gasaway's trust account dropped below a level necessary to cover the check to Rubin on January 25th, and that it did not contain sufficient funds to wire transfer the $22,256.86 until four days before the money was wired to Rubin. The records also indicate that even if there had not been a stop payment order placed on the check for $14,317.75, there would have been insufficient funds in Gasaway's trust account to have allowed a check for $22,000 to have been paid. It also appears from Gasaway's bank records and testimony elicited before the trial panel that Gasaway could not have made the payment on April 18th without using money collected on behalf of another client.

A pretrial conference was held on January 24, 1990. Both parties agreed to supply opposing counsel with a witness list before the trial panel's hearing on March 20, 1990. When the proceedings convened, Gasaway objected to the Bar Association's calling of a witness not listed on their witness list. The witness, a certified public accountant, had reviewed Gasaway's trust account records and his bank statements. The trial panel allowed the proceedings to continue. However, when the Bar Association called the accountant, the trial panel continued the proceeding to allow Gasaway to prepare to meet the witness testimony. ⁷ Testimony from the certified public accountant was received at the hearing on June 12, 1990. Gasaway presented no testimony in his defense or to show mitigating circumstances at either of the hearings.

On October 23, 1990, the trial panel issued its report with recommended findings of fact, conclusions of law, and proposed discipline. The trial panel found that Gasaway had commingled client funds with his own and used client monies for purposes other than those authorized. It also found that Gasaway failed to make a full and fair disclosure to the Bar Association concerning the grievance by alleging that the check to Rubin was dishonored because of the issuance of a stop payment order when, in fact, the check would have been returned for insufficient funds even if there had been no stop payment order issued. The trial panel recommended a minimum suspension of six months and supervision by a lawyer-certified public accountant upon readmission.

On November 20, 1990, the Bar Association filed its brief in support of the trial panel's findings and in opposition to the recommended discipline. The Bar Association contends that the proposed sanctions are too lenient in light of the discipline imposed in other causes with similar fact patterns. ⁸ The Bar Association recommends a one-year suspension plus supervision of trust accounts upon readmission. On December 10, 1990, Gasaway filed a motion for extension of time to file his answer brief. He was granted an additional fifteen days in which to make his filing. Gasaway did not file a brief in the instant cause and has not filed any additional applications for extensions. He also has not responded to the Bar Association's motion to tax costs filed on January 15, 1991.

THE BAR ASSOCIATION ESTABLISHED BY CLEAR AND CONVINCING

EVIDENCE THAT GASAWAY COMMINGLED AND MISUSED CLIENT FUNDS,

AND THAT HE FAILED TO FULLY AND FAIRLY RESPOND TO A BAR

COMPLAINT. THIS CONDUCT WARRANTS A ONE-YEAR SUSPENSION,

IMPOSITION OF COSTS, AND SUPERVISION UPON REINSTATEMENT.

Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence. ⁹ In a bar disciplinary proceeding, this court as a licensing court exercises exclusive original jurisdiction. Therefore, while the trial panel's recommendations are afforded great weight, it is ultimately this court's responsibility to make the final determination. Our review therefore is de novo in considering the record presented as well as the trial panel's disciplinary recommendation. ¹⁰ Here, the Bar Association presented evidence that: 1) Gasaway failed to remit a client's funds within a reasonable time--eighty-nine days after the funds were deposited to his trust account; 2) that client funds were misused--not only did Gasaway fail to remit the funds in a timely fashion, he also disbursed those funds from his trust account (the trust account fell below a level which would have allowed remittance the day after the client's proceeds were deposited) without his client's permission and when he finally wired the funds to Rubin he used funds collected for another client--again without permission--to cover the transfer; and 3) that Gasaway failed to fully and fairly disclose the facts surrounding the grievance to the Bar Association--Gasaway supplied the Bar Association with a letter written to another organization which contained material misrepresentations concerning why the remittance to Rubin was tardy. The imposition of discipline is warranted for violation...