State of Okla. v. McCOY

• Decision Date: 21 September 2010
• Docket Number: SCBD No. 5592.
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Gloyd Lynn McCOY, Respondent.
• Court: Oklahoma Supreme Court

240 P.3d 675

2010 OK 67

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,

v.Gloyd Lynn McCOY, Respondent.

SCBD No. 5592.

Supreme Court of Oklahoma.

Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

ORIGINAL PROCEEDING FOR BAR DISCIPLINE

¶ 0 The complainant, Oklahoma Bar Association, charged the respondent, Gloyd Lynn McCoy (McCoy/attorney), with thirteen counts of professional misconduct ranging from failure to communicate to misuse of client funds to notice of suspension by the United States Court of Appeals for the Tenth Circuit. Upon agreement of the parties, we issued an order of interim suspension pending resolution of the disciplinary action following notification that the attorney had been disbarred by the Tenth Circuit and upon grounds that the respondent alleged throughout prosecution of the cause that he was personally incapable of practicing law. The trial panel recommended that the attorney be disciplined under Rules 6 and 10, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and be suspended for two years and one day. The Bar Association agreed with the proposed discipline and filed an application for the imposition of costs. The attorney acknowledged multiple instances of misconduct involving: dishonesty, fraud, deceit, or misrepresentation; incompetence including accepting cases while under a disability; lack of diligence; failure to communicate; mishandling of funds; and the filing of untimely responses to grievance inquiries. In addition, the attorney has been disbarred by the Tenth Circuit. We acknowledge the attorney's evident medical issues, debilitating depression coupled with an attention deficit disorder, and their contribution to his actions. Nevertheless, in consideration of the facts and upon de novo review, we determine that the respondent's conduct resulting in incurable harm to the rights of those he represented, retaining unearned fees, continued representation of clients while alleging his incapacity to do so, causing embarrassment to the legal profession and to this Court, and undermining confidence in the Bar Association and its members warrants suspension for a period of two years and one day and the payment of costs of $4,938.55.

RESPONDENT SUSPENDED AND ORDERED TO PAY COSTS OF THE PROCEEDING IN THE AMOUNT OF $4,938.55.

Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complaint.

Charles J. Watts, Oklahoma City, OK, for respondent.

WATT, J.:

¶ 1 In what was initially a Rule 6 but later converted to a Rule 10, ¹ Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A proceeding, the complainant, Oklahoma Bar Association, charged the respondent, Gloyd Lynn McCoy (McCoy/attorney), with thirteen counts of professional misconduct ranging from failure to communicate to misuse of client funds and notice of suspension by the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) from accepting CJA appointments ² for a period of one year. ³ By agreement of the parties, this Court entered an order of interim suspension pending resolution of the disciplinary action following notification that the attorney had been disbarred by the Tenth Circuit and upon grounds that the respondent alleged throughout prosecution of the cause that he was personally incapable of practicing law. In the course of disciplinary proceedings, the attorney acknowledged ⁴ multiple instances of misconduct involving: dishonesty, fraud, deceit, or misrepresentation; incompetence including accepting cases while under a disability; lack of diligence; failure to communicate; mishandling of funds; and the filing of untimely responses to grievance inquiries. The attorney's actions resulted in his initial suspension and subsequent disbarment by the United States Court of Appeals for the Tenth Circuit.

¶ 2 We are sympathetic with and acknowledge the attorney's evident debilitating depression coupled with an attention deficit disorder and their contribution to his actions. Nevertheless, our obligation to uphold the grievance system, which exists to protect the public, must come before our compassion for the respondent. ⁵ Therefore, in consideration of the facts and upon de novo review, ⁶ we determine that the respondent's conduct resulting in incurable harm to the rights of those he represented, retaining of unearned fees, continued representation of clients while alleging his incapacity to do so, causing embarrassment to the legal profession and to this Court, and undermining confidence in the Bar Association and its members warrants suspension for a period of two years and one day and the payment of $4,938.55 in costs. ⁷

RELEVANT FACTS AND PROCEDURAL BACKGROUND

¶ 3 McCoy was admitted to the practice of law in 1982. Over the years, he distinguished himself in criminal proceedings and was awarded the Thurgood Marshall Award for outstanding appellate advocacy by the Oklahoma Criminal Defense Lawyers' Association in 2006.

¶ 4 In February of 2005, the attorney entered a six-month diversion program related to three grievances filed by his clients. The grievances involved conduct similar to that presented here: failure to file an appeal; failure to respond to client inquires; and failure to keep clients advised. ⁸ The Bar Association again began receiving grievances regarding the attorney's unprofessional performance in March of 2008. The grievances were grounded in representations McCoy undertook from March of 2005 through April of 2008, a span of three years. McCoy did not respond timely to any of the individual grievances and when responses were received they were either incomplete or inadequate. This necessitated that the respondent be deposed on September 30, 2009. The following month, the Bar Association filed a multiple count complaint.

¶ 5 The hearing before the trial panel was conducted over two days in March of this year. On May 21st, the trial panel issued its report recommending that McCoy be suspended from the practice of law for two years and one day. The same day, the Bar Association filed an application to assess costs of $4,938.55. It also is in agreement with the proposed discipline, as is the respondent. A briefing schedule was established by our order of May 25, 2010 which was concluded on July 29th with the filing of the reply brief.

JURISDICTION AND STANDARD OF REVIEW

¶ 6 It is this Court's nondelegable, constitutional responsibility to regulate the both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government. ⁹ Our determinations are made de novo. ¹⁰ We bear the ultimate responsibility for deciding whether misconduct has occurred and, if so, what discipline is warranted. Neither the finding of facts of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory. ¹¹ The same is true when the parties stipulate to misconduct and a recommendation for discipline. ¹² Before this Court will discipline an errant attorney, misconduct must be demonstrated by clear and convincing evidence. ¹³ To make this determination, we must be presented with a record sufficient to permit an independent, on-the-record review for the crafting of appropriate discipline. ¹⁴ The record submitted is sufficient for this Court to make the required decisions.

COUNTS DEMONSTRATING PROFESSIONAL MISCONDUCT ¹⁵

Count I-Woods/Law

¶ 7 McCoy stipulated to the following facts. The respondent was hired by Judy Wood (Wood) to appeal her grandson's, Karame Law's, conviction and sentence of life imprisonment. In December of 2006, after the conviction was affirmed, Wood retained the respondent to pursue federal habeas corpus relief for which he was paid $3,000.00. McCoy did not file the application, did not refund the unearned fee, and cut communications with Wood. Over two years later, in March of 2008, Woods was informed that McCoy was no longer employed with his firm. Later that month, she filed a grievance with the Bar Association. In May of 2008, the respondent promised to refund the entire fee within thirty (30) days. He did not do so. The respondent acknowledged his actions violated Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), 1.16(a) and 8.4(a)(c)(d), Rules Governing Professional Conduct, 5 O.S. Supp.2008, Ch. 1, App. 3-A; Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; and warrant imposition of professional discipline.

¶ 8 Woods testified that only after numerous attempts to contact McCoy was she informed that he no longer worked at the Riggs, Abney firm. Thereafter, Woods made multiple attempts to reach the attorney at his home. Although McCoy never returned any of her calls, he did finally respond to an e-mail sent to him by one of Woods' nieces. In his response to the grievance, he asserted that he had not promised to file for habeas corpus relief but had suggested that as an option. He also indicated that he would be refunding Woods' $3,000.00 within thirty (30) days. Although McCoy provided Woods with some of Law's files, she did not receive a complete set of trial transcripts and the respondent did not forward her the promised $3,000.00 despite his recognition that the funds would be important to her as Woods lives on a fixed income. ¹⁶

Count III-Stec/Simrak

¶ 9 The attorney stipulated that in March of 2005, ¹⁷ he accepted a fee of $500.00 from Vera Stec (Stec) to research possible post-conviction relief for her nephew, Joseph Simrak. Although McCoy retained the fee, he did not perform the promised work and he did not communicate either with Stec or Simrak. He acknowledges that this conduct violated Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), and 8.4(a)(c)(d), Rules of Professional Conduct, 5 O.S. Supp.2008, Ch. 1, App. 3-A; and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 5 O.S.2001, Ch. 1, App. 1-A.

¶ 10 Althoug...