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

• Decision Date: 08 May 1990
• Docket Number: No. 3648,3648
• Citation: 792 P.2d 1174,1990 OK 46
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Keith WHITELEY, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 1174

792 P.2d 1174

1990 OK 46

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Keith WHITELEY, Respondent.

SCBD No. 3648.

Supreme Court of Oklahoma.

May 8, 1990.

ORDER IMPOSING DISCIPLINE

This matter is before us for imposition of final discipline. Proposed Stipulations of Fact and Conclusions of Law with Agreed Recommendation for Discipline have been entered into by complainant and respondent. The stipulations and recommendation have been accepted and approved by the Trial Panel of the Professional Responsibility Tribunal (PRT), with one modification as will be detailed below. The parties have filed a joint waiver of briefs and have requested this Court to follow the recommendation of the PRT.

By virtue of a complaint respondent was charged with four (4) counts of misconduct warranting professional discipline. In the stipulations agreed to by the parties the allegations of counts I and II were dismissed. The substance of the remaining two (2) counts is set forth below.

COUNT III

1. In September 1988 D.G. retained respondent to assist her in recovering child support payments which were mistakenly sent to her parents. D.G. paid respondent $1,000.00 for this representation.

2. During the course of representation, D.G. attempted to contact respondent on numerous occasions by telephone to discuss the status of the case. Respondent did not return her calls often enough to keep her informed as to the status of the case.

3. When repeated attempts to communicate with respondent failed, D.G. contacted the District Attorney in Coconino County, Arizona, on February 5, 1989, in an attempt to resolve the child support problems. Her ex-husband made his child support payments to Coconino County which then supervised the disbursement of these funds. After contacting the District Attorney's office and discussing her problem with staff of that office, her support payment problems were resolved in approximately one-half hour.

4. After D.G. resolved the child support problems, she contacted respondent and requested a refund and itemized statement for her account. Respondent refused to provide a satisfactory itemized statement and refused to refund any of the $1,000.00.

5. Respondent failed to recover any child support payments or assist D.G. in recovering these funds.

6. The parties stipulated the above conduct violated Oklahoma Rules of Professional Conduct, 5 O.S.Supp.1988, Ch. 1, App. 3-A, Rules 1.1 (failure to provide competent representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to keep a client reasonably informed about the status of a matter and to promptly

comply with reasonable requests for information) and 1.5 (reasonableness of the fee).

COUNT IV

1. Respondent was sued by Harborcliff Condominiums on April 29, 1988, in Wagoner County District Court, Case No. SC-88-145, for failure to pay required association dues.

2. By agreement with counsel for plaintiff a default judgment was entered against him on May 12, 1988. Pursuant to the agreement respondent was to make payments to satisfy the judgment.

3. Subsequently respondent experienced financial difficulties and was unable to make the payments and satisfy the judgment.

4. A hearing on assets was scheduled before a Wagoner County Associate District Judge on November 10, 1988. Because respondent failed to appear at the hearing on assets and failed to comply with the payment agreement the judge issued a warrant for his arrest.

5. On May 8, 1989, respondent appeared before the judge on an unrelated matter. When questioned about the status of the warrant respondent stated he had not received formal notice that a warrant had been issued for his arrest.

6. The judge then requested a sheriff's deputy to place respondent in custody at which time respondent produced a petition for writ of habeas corpus and demanded an immediate hearing before the judge.

7. The demand was made in a combative and disruptive manner.

8. The parties stipulated the above conduct violated the 1988 Rules of Professional Conduct, Rules 3.5(d) (engaging in conduct intended to disrupt a tribunal) and 8.4(a) (violating or attempting to violate the Rules, knowingly assisting or inducing another to do so, or do so through the acts of another).

In addition to the above stipulations the parties submitted stipulations as to agreed mitigation and an agreed recommendation for discipline. The stipulation as to mitigation is as follows:

AGREED MITIGATION

1. Respondent has not previously been disciplined by this Court.

The stipulation as to recommended discipline is as follows:

AGREED RECOMMENDATION FOR DISCIPLINE

1. That respondent receive a public censure from this Court and thereafter be on probation for one (1) year.

2. That respondent's probation be subject to the following conditions:

a. Respondent shall abide by the Rules of Professional Conduct;

b. Respondent shall cooperate with the Office of General Counsel in any investigation of allegations of unprofessional conduct which have or may come to the General Counsel's attention. Either respondent's admission or the Trial Panel's findings of unprofessional conduct shall constitute conclusive evidence of a breach of this stipulation;

c. Respondent shall certify quarterly during the probation to the Office of General Counsel that there are no files he is neglecting to handle with...