State ex rel. Oklahoma Bar Ass'n v. Bolton, 1127

• Decision Date: 17 May 1994
• Docket Number: No. 3960,No. 1127,1127,3960
• Citation: 880 P.2d 339,1994 OK 53
• Parties: STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Darrell L. BOLTON, Respondent. OBADSCBD
• Court: Oklahoma Supreme Court

Page 339

880 P.2d 339

1994 OK 53

STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Darrell L. BOLTON, Respondent.

OBAD No. 1127.

SCBD No. 3960.

Supreme Court of Oklahoma.

May 17, 1994.

Bar Disciplinary Proceeding.

Facts and conclusions of law stand submitted by stipulation of the parties. The Professional Responsibility Tribunal [PRT] made some additional findings of fact and conclusions of law with a recommended measure of discipline. Upon this court's de novo consideration of the record reflecting proceedings before the PRT, of the findings of fact and conclusions of law, and of the recommendation for discipline.

RESPONDENT IS ORDERED DISCIPLINED BY A NINETY-DAY SUSPENSION RECOMMENDED BY GENERAL COUNSEL AND BY IMPOSITION OF COSTS.

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

Darrell L. Bolton, Pro se.

OPALA, Justice.

In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record ¹ sufficient for a meaningful de novo consideration of the complaint's disposition? and (2) Is a ninety-day suspension with imposition of costs an appropriate disciplinary sanction to be imposed for respondent's breach of professional discipline? We answer both questions in the affirmative.

The Oklahoma Bar Association [Bar] charged Darrell L. Bolton [respondent or Bolton] with four counts ² of professional misconduct. After a hearing, a PRT panel made

                findings of fact and conclusions of law together with a recommendation of discipline.  The PRT ruled Bolton violated Rules 1.3, 1.4, 3.2, and 8.1 of the Oklahoma Rules of Professional Conduct 3 and Rule 5.2 of the Rules Governing Disciplinary Proceedings. 4  With the respondent's concurrence, the Bar recommended that he be suspended from the practice of law for ninety days.   The PRT rejected this recommendation, counseling that the appropriate sanction should be a one-year suspension and the payment of the costs of this proceeding
                

FACTS ADMITTED BY STIPULATION ⁵

COUNT I

In 1991 Sherry Long [Long] retained the respondent to secure a divorce. ⁶ He filed a petition in October 1991 but took no further action [to Long's knowledge] until May 1992 when she received from him a set of interrogatories. While the respondent had received the interrogatories almost thirty days earlier, he gave Long only one night to prepare her responses.

In May 1992 respondent informed Long that he would move for a pre-trial conference and that they would go to court the day after she returned from a planned vacation. In July 1992 Long's mother called to inquire when she had gone to court as she had read in the newspaper that the divorce had been granted.

Being unaware of the divorce decree, Long called the respondent and left a message that Next, Long discussed vacating the decree of divorce with the respondent. Long decided not to contest the default decree since she felt its terms were fair. ⁷ During their last consultation Long asked respondent to secure a previously-requested judicial approval of name change and to give her advice about the payment of certain bills which the court had allocated between her and her husband. Respondent wholly failed to secure Long's name change and never gave her the requested advice for the payment of the bills.

she had seen the published notice of the divorce. Bolton returned her call indicating that he was not aware of the events in her case but would inquire about them and report back to her. Bolton later told Long that the court had conducted a pre-trial hearing, while Long was out of town on vacation, at which neither respondent nor Long appeared. The court granted a divorce to Long's husband on July 7, 1992.

COUNT III

Patsy Ann Irby [Irby] retained Bolton to represent her in a divorce and paid him a retainer of $1,000.00. ⁸ Irby had previously hired other counsel to represent her in this action. She became dissatisfied with his services and discharged him after he had failed to serve on opposing counsel her answers to interrogatories. Irby then had her first counsel furnish respondent her previously prepared responses and asked Bolton to serve them on opposing counsel--which he failed to do. ⁹ On February 21, 1992 opposing counsel filed a motion for order compelling discovery to secure the requested responses.

Respondent never served Irby's answers to the interrogatories. During the pendency of the divorce proceeding respondent never secured a modification of the temporary order granting custody to provide for child support. He did not reasonably keep his client informed about the status of her matter and failed diligently to pursue a disposition of the divorce.

COUNTS II AND IV

Both Long and Irby filed grievances with the Tulsa County Bar Association. ¹⁰ On February 4, 1993 these grievances were forwarded to the Bar's General Counsel. ¹¹ On March 17, 1993 the Office of When respondent did not file a response to the second letter, the Professional Responsibility Commission issued a subpoena duces tecum commanding him to appear for deposition at 10:00 a.m. on May 3, 1993. Respondent called at 8:50 a.m., May 3, 1993 and asked that the deposition be rescheduled for May 11, 1993. Bolton's deposition was taken on the later date.

                the General Counsel mailed to Bolton, at his current roster address, notice that the General Counsel was initiating a grievance based upon the complaints of both Long and Irby.  This notice advised him that he should respond within twenty (20) days. 12  Bolton did not respond.   On April 12, 1993 the Office of the General Counsel informed the respondent by certified mail that he should file a written response within five (5) days of receiving the certified letter.  Bolton again did not respond
                

COUNT V

On January 14, 1983 respondent was privately reprimanded by the Professional Responsibility Commission for providing a client representation which was neither competent nor sufficiently zealous.

On May 2, 1989 this court publicly censured the respondent for professional conduct which offended the integrity of the profession and for neglecting a legal matter entrusted to him.

ADDITIONAL FACTS

In addition to the facts admitted by stipulation the PRT found that the respondent did not show sufficient remorse or accept responsibility for his actions. It was also the PRT's finding that respondent had not implemented office procedures which would prevent the recurrence of conduct similar to that of which the Bar was currently complaining.

AGREED CONCLUSIONS OF LAW

The parties' stipulation concedes that the respondent's conduct violates the mandatory provisions of Rules 1.3, 1.4, 3.2 and 8.1, Oklahoma Rules of Professional Conduct, and Rule 5.2, Rules Governing Disciplinary Proceedings, and constitutes grounds for professional discipline.

I

THE RECORD BEFORE THE COURT IS COMPLETE FOR A DE NOVO

CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings. ¹³ The court's review is conducted by de novo consideration of the prosecution brought before us. ¹⁴ Neither the stipulations of the parties nor the PRT panel's findings or assessments regarding the weight or credibility of the evidence can bind this court. ¹⁵ In a de novo consideration, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, ¹⁶ a full-scale exploration of all relevant facts is mandatory. ¹⁷

The court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all pertinent issues. ¹⁸ Our responsibility is hence to ensure that the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline ¹⁹ that would avoid the vice of visiting disparate treatment on the respondent-lawyer. ²⁰

The record is adequate for our de novo consideration of Bolton's alleged professional misconduct.

II DISCIPLINE

The complaints and alleged violations before us are cumulative. Bar matters often deal with multiple episodes of misconduct. The public's interest in maintaining competent legal representation is best served by examination of a practitioner's performance over a span of time and an inquiry into one's professional history. ²¹ If that history should reveal a pattern of misconduct, it will be a factor in tailoring the appropriate discipline. ²² When examining Bolton's offending performance and searching for the appropriate sanction, we must consider the counts, now on review, against the background of his past established pattern of neglect. Neither the parties' stipulations nor the PRT's findings and recommendations are binding upon us. ²³

III

A NINETY-DAY SUSPENSION, RECOMMENDED BY GENERAL COUNSEL, IS

AN APPROPRIATE SANCTION FOR RESPONDENT'S PAST

PROFESSIONAL MISCONDUCT

The court's responsibility in exercising its disciplinary jurisdiction is not to punish but to inquire into the lawyer's continued fitness, with a view to safeguarding the interest of the public, of the courts and of the legal profession. ²⁴ Justice Irwin stated this principle when he said for the court:

Bearing in mind that licensure to practice law is not for the benefit of the individual member of the profession, but rather for the benefit of the public, the primary consideration in determining whether a lawyer is to be disciplined, concerns the welfare of the public.... ²⁵

The circumstances of a lawyer's alleged professional misconduct (Rule 6) ²⁶ are important in searching for solutions that would accord with the law's imperative of ensuring the public its due protection from substandard lawyers. ²⁷ The complaint against Bolton was pressed as a Rule 6 proceeding, which focuses on the lawyer's offending past conduct. ²⁸

Bolton has been charged with (1) lacking diligence and promptness in representing his clients, ²⁹ (2) not...