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

• Decision Date: 28 October 2008
• Docket Number: No. 5417.,No. 5219.,5417.,5219.
• Citation: 202 P.3d 830,2008 OK 96
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Roland Vincent COMBS, III, Respondent.
• Court: Oklahoma Supreme Court

202 P.3d 830

2008 OK 96

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

SCBD No. 5417.

SCBD No. 5219.

Supreme Court of Oklahoma.

October 28, 2008.

Original Proceeding for Attorney Discipline

¶ 0 After receiving from the respondent, Roland Vincent Combs, III [Combs/attorney], an application for reinstatement indicating he had engaged in the unauthorized practice of law while under suspension, the complainant, Oklahoma Bar Association (Bar Association), charged the respondent with one count of professional misconduct. The disciplinary rules allegedly violated relate to the affirmative steps with which an attorney suspended for a period of less than two years must comply as a precondition to the resumption of the practice of law. The trial panel recommended: a six month suspension retroactive to January 1, 2008; the attorney be required to demonstrate a basic knowledge and understanding of the Rules of Professional Conduct, 5 O.S. Supp.2008, Ch. 1, App.2 and Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; and the imposition of the costs of the disciplinary proceeding. The cause presents unusual facts including language of the Court's opinion which arguably led the attorney to believe that there were no conditions precedent to his resumption of the practice of law after the expiration of his suspension, the Bar Association's lack of specificity in directing the attorney to the rules relating to his situation and in explaining the requirements of the rules, and the attorney's failure to familiarize himself with the rules related to his suspension and to comply with the specific requirements of those rules. On de novo review of the unique facts and applicable law, we hold that respondent's failure to comply with the rules governing a suspension of less than two years warrants: 1) a retroactive suspension of six months to the date the attorney filed his motion for an order of reinstatement; 2) the payment of costs of $1,006.61; and 3) a requirement that the attorney file, with this Court and with the complainant, an affidavit declaring that he has familiarized himself with and has a clear understanding of the Rules of Professional Conduct, 5 O.S. Supp.2008, Ch. 1, App. 2 and the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

RESPONDENT SUSPENDED FOR SIX MONTHS RETROACTIVE TO MARCH 5, 2008; ORDERED TO PAY COSTS OF THE PROCEEDING IN THE AMOUNT OF $1,006.61; AND DIRECTED TO FILE AN AFFIDAVIT DECLARING HIS FAMILIARITY AND UNDERSTANDING OF RULES OF PROFESSIONAL CONDUCT AND DISCIPLINARY PROCEEDINGS.

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

Aletia Haynes Timmons, Oklahoma City, OK, for Respondent.

WATT, J.:

¶ 1 The attorney filed an application for reinstatement following his suspension by this Court for a period of ninety days.¹ Thereafter, the Bar Association charged Combs with one count of professional misconduct in relation to his failure to follow procedures mandated for an attorney suspended by order of this Court for a period of less than two years. These two matters are considered together for the sole purpose of promulgating one opinion² addressing the issues presented.

¶ 2 The cause presents unusual facts including language of the Court's opinion which arguably led the attorney to believe that there were no conditions precedent to his resumption of the practice of law after the expiration of his suspension, the Bar Association's lack of specificity in directing the attorney to the rules relating to his situation and in explaining the requirements of the rules, and the attorney's failure to familiarize himself with the rules related to his suspension and to comply with the specific requirements of those rules. Upon a de novo review³ of the unique facts and the applicable law, we determine that the clear and convincing evidence⁴ supports a finding that the attorney failed to comply with the technical requirements of Rules 9.1 and 11.8,⁵ Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A. We hold that respondent's failure to comply with the rules governing a suspension of less than two years warrants: 1) a retroactive suspension of six months to the date the attorney filed his motion for an order of reinstatement;⁶ 2) the payment of costs of $1,006.61;⁷ and 3) a requirement that the attorney file, with this Court and with the complainant, an affidavit declaring that he has familiarized himself with and has a clear understanding of the Rules of Professional Conduct, 5 O.S. Supp.2008, Ch. 1, App. 2 and the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

FACTS

¶ 3 The attorney was suspended from the practice of law for a period of ninety days and costs were imposed on September 11, 2007, based on clear and convincing evidence of two counts of mishandling client funds. The current proceeding was instituted pursuant to Rules 6⁸ and 11.8,⁹ Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

¶ 4 The ninetieth day following the day of suspension fell on December 10, 2007. With the addition of a twenty-day period in which rehearing could have been filed, the suspension period would have run to December 30, 2007. It is agreed that the attorney did not engage in the unauthorized practice of law during the ninety-day suspension period. It is also undisputed that the attorney began practicing law in January of 2008 under the mistaken impression that there were no conditions precedent to his representation of clients other than the expiration of the suspension period and the payment of costs. The attorney was informed by the trial court in February of 2008 that his name continued to appear on the list of suspended attorneys. Although when Combs contacted his representative in the disciplinary proceeding he was informed that the listing was nothing more than a "glitch" in the system, the attorney opted to "self suspend" himself and did not engage in any further practice of law.

¶ 5 From the outset, Combs was confused about what steps he would have to take before he began practicing law. The attorney asserts that language of the opinion in his disciplinary proceeding led him to believe that there was no requirement that he do anything other than refrain from the practice of law during the ninety-day period and pay the costs of the proceeding. Specifically, Combs points to language in a footnote of the opinion providing that "[r]einstatement for a member of the Bar who was suspended for any period of time shorter than two years and one day is not connected with any formal process."¹⁰ Another footnote in the opinion provides the procedures which must be followed for a suspension for two years and one day.¹¹

¶ 6 Combs took some affirmative steps to attempt to resolve his questions over the readmission process. After the attorney made inquiries to his representative in the disciplinary proceedings, the counsel drafted a letter to the prosecuting Assistant General Counsel asking for "practical advice" on how Combs could avoid difficulties during his suspension period. In response, the Assistant General Counsel referred Combs to the Bar Association's Ethics Counsel. The Ethics Counsel did not advise Combs of the requirements of either Rule 9.1 or 11.8. Apparently, Combs' representative made a second inquiry to the Bar Association in December of 2007 in which he was told that Combs needed to comply with Rule 9.1, but the representative indicated he did not believe the rule's requirements applied to his client.

¶ 7 It is unquestioned that Combs did not comply with the technical requirements of Rule 9.1. He did not: notify by certified mail, within twenty (20) days, his clients with pending business of his suspension and the need to obtain substitute representation; file a formal withdrawal as counsel in all his pending cases; or, within twenty (20) days, file an affidavit with the Commission and with this Court stating he had complied with the rule's provisions or provide a list of all his clients notified along with a statement of all tribunals and agencies before which he was admitted to practice law. At the conclusion of his suspension, Combs did not follow the dictates of Rule 11.8 to file an affidavit with this Court's Clerk or provide a copy of the affidavit to the Bar Association's General Counsel.

¶ 8 Combs did take steps to protect his clients' interests after the suspension was entered. The following Saturday, he called several attorneys into his offices. The clients' files were distributed among the attorneys who undertook the representation, for the most part, without compensation. There is no evidence that any client was prejudiced or suffered any harm due to the change in representation. Clients who called Combs' offices were informed of the suspension and directed to their new attorneys. Rather than withdrawals being filed in all of the cases, some of the dockets indicate that the new attorneys merely made entries of appearance or showed themselves as substitute counsel.

¶ 9 The attorney contends that his actions were sufficient to substantially comply with Rule 9.1. He acknowledges that he made no attempt to comply with Rule 11.8 until March 5, 2008 when he filed a motion for an order reinstating him to the practice of law. When the Bar Association filed its motion to strike, Combs supplemented his original affidavit with a restated supplement which addressed the unauthorized practice of law issue and had a list of clients appended along with an accounting of the courts and agencies in which the attorney was admitted to practice.

¶ 10 On May 5, 2008, the Bar Association filed a complaint charging Combs with one count in relation to his failure to follow procedures mandated for an attorney suspended by order of this Court for a period of less than two years. A hearing...