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

• Decision Date: 07 June 1988
• Docket Number: No. 3412,3412
• Citation: 1988 OK 65,757 P.2d 825
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Norman D. PERKINS, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 825

757 P.2d 825

1988 OK 65

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Norman D. PERKINS, Respondent.

SCBD No. 3412.

Supreme Court of Oklahoma.

June 7, 1988.

Complainant alleged three counts of misconduct. The trial panel found that the respondent did not maintain a trust account, utilized client's funds for his personal benefit, and that a client had suffered

monetary loss. The trial panel recommended disbarment

RESPONDENT DISBARRED.

Alan B. Foster, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Norman Perkins, Hennessey, pro se.

SUMMERS, Justice.

The Oklahoma Bar Association alleged three counts of misconduct by the respondent, Norman Perkins. All three counts allege commingling of clients' funds and the conversion of the funds by Perkins for his own use. The Professional Responsibility Tribunal found that Perkins did not maintain a trust account, had received clients' funds, and had utilized the funds for his own personal benefit and gain. The Tribunal also found that Perkins had refused and/or been unable to return a client's funds upon demand, and that his client had suffered a monetary loss. The Tribunal recommended that Perkins be disbarred. However, before reaching the merits of the disciplinary proceeding, Perkins' purported resignations from the Bar Association must be examined.

RESPONDENTS' RESIGNATIONS

The hearing before the trial panel occurred on November 19 and 20, 1987. On November 12, 1987, Perkins filed a motion to continue the trial with an attached resignation pending disciplinary proceedings. The Professional Responsibility Commission did not file the resignation in this Court. The resignation, executed on November 5, 1987, stated that it should become effective on December 21, 1987.

This Court requested supplemental briefs on the issue of the effect, if any, of the respondent's letter of resignation. In response, Perkins filed an additional resignation stating an effective date of August 15, 1988. Perkins' brief states that: (1) he has not been taking any additional legal work which requires a long period of time to complete and; (2) he has been trying to close pending cases, "[h]owever there are several cases which will require a period of attention by respondent." The respondent states with respect to these cases:

"These are cases already paid for by the client. If the client had to have a new attorney at this point, with new fees, it would be a real or impossible hardship for the client."

The Rules creating and controlling the Oklahoma Bar Association contain the following provision:

"(a) Any member may resign his membership in the Association by filing with the Executive Director a written resignation, whereupon he shall automatically cease to be a member and shall not thereafter be entitled to the privileges and advantages of membership in the Association. The Executive Director shall publicize the fact of resignation and shall cause a record thereof to be made in the records of the Association and of the Clerk." 5 O.S.1981, Ch. 1, App. 1, Art. II, § 3.

This provision provides that upon the filing of a resignation with the Executive Director the individual automatically ceases to be a member of the Bar Association. Where an individual automatically ceases to be a member of the Bar Association, that person is no longer licensed to practice law in Oklahoma, 5 O.S.1981, Ch. 1, App. 1, Art. II, § 1.

The effective date of a resignation is upon filing the resignation with the Executive Director. A resignation with a stated effective date at some time thereafter is not contemplated by the Rules nor authorized by case law. We have accepted resignations from attorneys in the course of disciplinary proceedings because Rule 8.1 so provides. In so doing we have approved such resignations effective the date they were executed. See State ex rel. OBA v. Coleman, 723 P.2d 266 (Okl.1986). We have also accepted resignations and approved the same retroactively to an earlier date of interim suspension, in an effort to align the resignation with the first date the individual was no longer able to practice law. State ex rel. OBA v. Smith, 58 OBJ 283 (Okl.1987); State ex rel. OBA v. Page, 754 P.2d 878 (Okl.1988).

We do not consider a proferred resignation which is stated to take effect at some future date to be a resignation within the meaning of Rule 8.1 requiring our acceptance of same. We accordingly decline to accept the resignations as tendered.

DISCIPLINARY PROCEEDING

This Court conducts an independent review of the evidence submitted to the trial panel of the Tribunal. State ex rel., Oklahoma Bar Association v. Raskin, 642 P.2d 262, 265-266 (Okl.1982). We find clear and convincing evidence to establish that Perkins commingled clients' funds, utilized clients' funds for his own personal benefit, and that a client has suffered a monetary loss due to his actions.

COUNT I

Arley O. May died in March, 1977, and Perkins was retained by the widow, Susie May, to probate the estate. Perkins informed Susie May that he needed $30,500.00 to pay estate taxes, and she gave him checks for $25,000.00 and $5,500.00 ¹ on July 7, 1977. Perkins then deposited on the same day the $25,000.00 check into his personal account, retaining $1,000.00 in cash from the deposit. Perkins utilized the check for $5,500.00 to make a payment on his personal loan at the Farmers and Merchants National Bank, Hennessey, Oklahoma. Susie May subsequently paid Perkins $7,000.00 as an attorney's fee for the probate proceeding. During the summer of 1977 the personal account of Perkins was periodically overdrawn, and he paid checks from the account for personal expenses. Perkins did not pay the estate taxes and approximately five years later he remitted the amount of $30,500.00 to Susie May by two separate checks drawn on his personal account dated May 19, 1982 and June 30, 1982.

COUNT II

On September 28, 1984, Perkins received a check for a payment on a note, for and on behalf of his client Darl Dowell, in the amount of $15,145.69. On October 1, 1984, Perkins utilized the check to deposit $7,145.69 into his personal account, retained $2,000.00 in cash, and purchased a cashier's check in the amount of $6,000.00. On October 2, 1984, the client died and Perkins was retained to probate the estate by Jay Dowell. In April of 1985, Jay Dowell contacted Perkins inquiring about the payment on the note, and Jay Dowell was informed by Perkins that the sum of $15,145.69 was retained as an attorney's fee pursuant to an oral agreement between Perkins and the deceased, Darl Dowell. Jay Dowell received a check from Perkins in May of 1985 for $15,145.69, postdated June 10, 1985. The check was not honored by the bank after it was deposited on June 10, 1985. Due to the efforts of new counsel for the estate, Perkins paid $15,145.69 to the estate through a series of unequal payments, with the final payment received on September 6, 1985.

Perkins received a check on or about December 17, 1984, for and on behalf of Myrth Dowell, in the amount of $57,687.46, representing proceeds from a life insurance policy on Darl Dowell, with Myrth Dowell as the beneficiary. Perkins deposited the $57,687.46 into his personal account and did not notify Myrth Dowell of the check. Myrth Dowell testified that the endorsement on the check was not her signature. Perkins did not turn over the funds to Myrth Dowell until after she contacted him inquiring about the funds. He paid to her the $57,687.46 with interest, by a check dated April 11, 1985, drawn on his personal account. Perkins made personal and business expenditures from his personal account in December 1984, and January, February, and March 1985.

COUNT III

In the fall of 1983 C.D. Ball and his wife retained Perkins to represent them relevant to their federal and state tax problems. Perkins also assisted the Balls with a bankruptcy proceeding. Perkins represented to the Balls that he would attempt to negotiate a settlement of their 1981 tax liability. In accordance with Perkins' advice, the Balls delivered the sums of $45,000.00 and $69,632.00 in December 1983 and February 1984, to Perkins for him to pay the 1981 tax liability of the Balls. Perkins deposited the $45,000.00 into his personal account retaining $2,000.00 in cash and deposited the $69,632.00 into his personal account retaining $5,000.00 in cash. His account was utilized for personal and business expenses between December 1983 and March 1984.

Perkins did not pay any funds for the outstanding tax indebtedness of the Balls. The Internal Revenue Service contacted the Balls in April of 1987 requesting payment for the 1981 taxes. Perkins did not return the Balls' funds upon their demand through new counsel. Perkins made a $30,000.00 payment and signed a promissory note for $122,842.68 to repay the Balls with interest. Some, but not all of the required payments on the note had been paid when due, by the time of the hearing before the trial panel.

Assignments of Error

I. Statute of Limitations

The respondent asserts that more than one year had passed between the filing of the grievance on Count I and charges being filed by the General Counsel, and that Count I is barred by the statute of limitations. ² In State ex rel. Oklahoma Bar Association v. Warzyn, 624 P.2d 1068 (Okl.1981) the court stated the following:

"This Court does not take lightly charges against a member of the Bar, and in imposing disciplinary measures this Court wants the entire record of an attorney before it. The record should be scrutinized to determine whether the alleged offense giving rise to charges of misconduct was a mere blotch on an otherwise untainted career, or just one long series of questionable ethical actions. For this reason, this Court deems it inappropriate that an arbitrary statute of limitations on alleged attorney misconduct be imposed." Id. 624 P.2d at 1071.

In State ex rel. Oklahoma Bar Association...