STATE, OKLAHOMA BAR ASS'N v. Schraeder

• Decision Date: 18 June 2002
• Docket Number: No. 4597.,4597.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Fred M. SCHRAEDER, Respondent.
• Court: Oklahoma Supreme Court

51 P.3d 570

2002 OK 51

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Fred M. SCHRAEDER, Respondent.

No. 4597.

Supreme Court of Oklahoma.

June 18, 2002.

Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complainant. William G. LaSorsa, Jones, Givens, Gotcher & Bogan, Tulsa, OK, for respondent.

OPALA, J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: [1] Does the record¹ submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and [2] Is a license suspension for thirty (30) days an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I INTRODUCTION TO THE RECORD

¶ 2 On 26 January 2001 the Oklahoma Bar Association [Bar] commenced this disciplinary proceeding against Fred M. Schraeder [Schraeder or respondent], a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings [RGDP].² The complaint alleges in four counts multiple violations of the Oklahoma Rules of Professional Conduct [ORPC]³ and of the RGDP. The charges include two grievances advanced by separate clients and respondent's failure to respond to the Bar's investigative inquiries in both matters. The Bar has since withdrawn its reliance on ORPC Rules 1.1, 1.2, 1.3, 3.2 and 8.4(c) in Count I (the McMinn grievance); ORPC Rules 1.1, 1.3, 1.5, 1.16(b)(2), (d), 3.2 and 8.4(c) in Count II (the Parsons grievance); and on ORPC Rule 8.4(c) in Counts II and IV (for respondent's failure timely to respond to the Bar's inquiries). The Bar now rests the four counts solely on: (1) ORPC Rules 1.4, 1.5, 1.15(b), 1.16(b)2, (d), 3.2, 8.4(a) and RGDP Rule 1.3 in Count I; (2) ORPC Rules 1.4, 1.15(b), 8.4(a) and RGDP Rule 1.3 in Count III; and (3) ORPC Rules 8.1(b), 8.4(a) and RGDP Rules 1.3 and 5.2 in Counts II and IV.

¶ 3 At the commencement of its hearing on 16 May 2001 a trial panel of the Professional Responsibility Tribunal [panel or PRT] recognized for the record the admission of the parties' stipulations of fact, conclusions of law and an agreed disciplinary recommendation. As for mitigation, the parties agreed that respondent had never before been disciplined (by the Professional Responsibility Commission or by this court) or been the subject of a formal investigation by the Bar's counsel. The parties submit professional burnout syndrome⁴ as a factor to be considered in mitigation of respondent's culpability.

¶ 4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties' stipulations). The panel recommended that respondent receive a private reprimand and be directed to pay the costs of this proceeding.

II THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 5 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.⁵ The court's jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this State's legal practitioners.⁶ In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts,⁷ in which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive.⁸ In its task, the court is not guided by the scope-of-review rules that govern corrective relief on appeal or in certiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.⁹

¶ 6 The court's duty can be discharged only if the trial panel submits a complete record of the proceedings.¹⁰ Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent on-the-record determination of the critical facts and (b) the crafting of an appropriate discipline.¹¹ The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment of an offending lawyer.¹²

¶ 7 Having carefully scrutinized the record submitted, we conclude that it is adequate for de novo consideration of the respondent's alleged professional misconduct and of the discipline to be imposed.

III FACTS ADMITTED BY STIPULATION

¶ 8 The parties have tendered their stipulations by which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands admitted. It serves as an evidentiary substitute that dispenses with a need for proof of facts that are conceded by the parties' agreement. Stipulations are subject to the approval of the court in which they are entered.¹³ Respondent's stipulations of facts (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties' tendered stipulations.

A Count I — The McMinn Grievance

¶ 9 Count one is predicated upon a grievance by Perry A. McMinn [McMinn]. McMinn hired respondent to assist in a criminal appeal filed in the United States District Court for the Northern District of Oklahoma.¹⁴ He paid respondent on 4 September 1997 the sum of $2,000 by cashier's check as part of the agreed fee of $10,000 and gave Schraeder an additional $800 on 21 January 1998.

¶ 10 After writing McMinn in February, March and May of 1998, respondent ceased communicating with his client and failed to file any motions or briefs in his appeal. Following respondent's inactivity, McMinn filed a motion on his own behalf and wrote respondent a letter, dated 5 May 1999, asking him to review and revise the document. When respondent failed to reply, McMinn wrote him again on 2 June 1999 and enclosed copies of several cases that he wanted him to review. Respondent did not answer the June 2 letter; he claims that he never received the letter or the enclosed cases. By letter dated 27 September 1999 McMinn requested a detailed accounting of all costs and legal services expended on his behalf and a refund of the unearned portion of the $2,800 fee. Respondent failed to answer the September 27 letter.

¶ 11 Schraeder insists (1) that he filed no briefs or pleadings in the McMinn case because he was waiting to receive pertinent information from McMinn's family to proceed with the appeal¹⁵ and claims (2) that he neither responded to the September 27 letter nor provided the requested accounting because he believed that he had earned the $2,800 fee by (a) researching the various issues in the McMinn appeal, (b) speaking on several occasions to members of McMinn's family and (c) traveling twice to visit McMinn at the Adult Detention Center in Tulsa, Oklahoma.

¶ 12 The Bar and respondent agree that the latter's misconduct violates the mandatory provisions of ORPC Rules 1.4¹⁶ (failure promptly to communicate with his client's request for information),1.5¹⁷ (failure to charge reasonable fees), 1.15(b)¹⁸ (failure promptly to account for and return any unearned fees), 1.16(b)(2) and (d)¹⁹ (failure promptly to notify McMinn of his withdrawal from the appeal), 8.4(a)²⁰ (misconduct) and RGDP Rule 1.3²¹ (bringing discredit upon the legal profession). Upon de novo review of the record, we hold the charges are supported by clear and convincing proof that respondent's conduct warrants the imposition of discipline.

B Count III — The Parsons Grievance

¶ 13 In Count three of the complaint the Bar charged respondent with failure to communicate with a client and to perform the work for which he was hired. Around 13 February 1999 Loretta Parsons [Parsons] retained Schraeder to represent her grandchildren's interest in her deceased daughter's estate. He was also to represent another granddaughter in both a criminal and a domestic matter. Parsons paid him $1,500.00. She also delivered to him several documents relevant to the estate as well as to possible civil litigation pertaining to her daughter's death. Respondent claims that Parsons paid him the fee to represent two of Parsons' adult children in three legal matters but that he never agreed to represent her in any wrongful death or other civil action. He insists that he completed the criminal and domestic matters for one granddaughter and performed work in the probate case.

¶ 14 The record is replete with letters from Parsons to respondent in which she insists that her efforts to communicate with respondent and to retrieve from him personal documents relating to a wrongful death suit proved unsuccessful. Schraeder takes the position that he terminated all communications with Parsons because his representation ended after the conclusion of the estate matters for her grandchildren and another family member's criminal case and annulment.

¶ 15 A constant flow of communication between an attorney and client constitutes a vital part of a lawyer's professional undertaking.²² When a client seeks information from one who is retained for representation, prompt responsive action should be forthcoming. Prolonged and willful silence by the lawyer's failure to return calls or answer letters is the very kind of neglect that destroys the public's confidence in the lawyer's integrity.²³

¶ 16 Both the Bar and respondent agree that the latter's actions violate the mandatory provisions of ORPC Rules 1.4,²⁴ 1.15(b),²⁵...