State v. Gaines, Case Number: SCBD-6630

• Decision Date: 20 November 2018
• Docket Number: Case Number: SCBD-6630
• Citation: 431 P.3d 63
• Parties: STATE of Oklahoma EX REL., OKLAHOMA BAR ASSOCIATION, Complainant, v. Shanita Danielle GAINES, Respondent.
• Court: Oklahoma Supreme Court

431 P.3d 63

STATE of Oklahoma EX REL., OKLAHOMA BAR ASSOCIATION, Complainant,

v.Shanita Danielle GAINES, Respondent.

Case Number: SCBD-6630

Supreme Court of Oklahoma.

Decided: November 20, 2018

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Shanita Danielle Gaines, Respondent/Pro Se

COMBS, C.J.:

¶ 1 This is a reciprocal disciplinary proceeding initiated pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings ("RGDP"), 5 O.S. Supp. 2014, ch. 1, app. 1-A, which provides for discipline in Oklahoma that is based upon a disciplinary action occurring in another jurisdiction. The present matter concerns a Judgment of Disbarment issued February 5, 2018, by the Evidentiary Panel 14-2 of the Grievance Committee for the State Bar of Texas, District 14, in Commission For Lawyer Discipline v. Shanita Danielle Gaines , Case No. 201604423. Currently, the Respondent, Shanita Danielle Gaines, is suspended from practicing law in Oklahoma. State ex rel. Okla. Bar Ass'n v. Gaines , 2016 OK 80, 378 P.3d 1212 ( Gaines I ); In the Matter of the Suspension of Members of the Okla. Bar Ass'n , 2018 OK 44. In addition, just a few weeks prior to our decision in Gaines I, she was suspended for failure to comply with continuing legal education requirements. In the Matter of the Suspension of Members of the Okla. Bar Ass'n, 2016 OK 64. The Respondent was granted a hearing before the Professional Responsibility Tribunal ("PRT") on June 20, 2018. Thereafter, the PRT issued a report wherein it recommended Respondent be disbarred effective September 28, 2016 (the alleged date her suspension became final in Gaines I ).¹

I. PROCEDURAL HISTORY

A. Gaines I

¶ 2 The Respondent was licensed to practice law in the State of Texas in 2004 and was admitted to the Oklahoma Bar in 2011. In 2009, the Respondent moved to Oklahoma and continued to practice law in Texas, having not yet been licensed in Oklahoma.² During that period she hired a Texas resident Jeffrey Gipson as a paralegal. The Respondent met Gipson while the two were studying for the Texas Bar Exam.³ Mr. Gipson had failed to pass the exam and had been performing paralegal work.⁴ The Respondent's law office was essentially Gipson's home in Texas and she maintained a P.O. Box in which both she and Gipson had access.⁵ In 2012, the Respondent had difficulty communicating with Gipson. In November 2012, while making a trip to the office, she noticed many boxes with her name on them and legal matters initiated by Gipson without her knowledge.⁶ She took the boxes and files with her to Oklahoma and spent the next few months reviewing them.⁷ By March 2013, she contacted Gipson and terminated their working relationship.⁸ The boxes contained many matters where she was representing persons without her knowledge.⁹ Some of these unknown clients filed grievances against her.¹⁰ Three of these grievances were the subject of Gaines I .

¶ 3 In March 2016, the Respondent appeared before Evidentiary Panel 6-4 of the Grievance Committee for the State Bar of Texas, District 6, concerning Case Nos. 201306034, 201306048, and 201306128. The Evidentiary Panel made Findings of Fact and Conclusions of Law concerning the Respondent's professional conduct in the three disciplinary cases. The panel held the Respondent violated Texas Disciplinary Rules of Professional Conduct, Rules 1.01 (b) (1) (competent and diligent representation), 1.03 (a) (communication), 1.14 (b) (safekeeping property), 5.03 (a) (responsibilities regarding nonlawyer assistants), and 5.04 (a) (Professional Independence of a Lawyer).¹¹ The panel imposed upon the Respondent a fully probated suspension of two years. A probated suspension allows the lawyer to practice during the probation as long as they comply with the terms of the probation.¹² There were ten terms of probation which included payment of restitution to one of her clients in the amount of $1,566.66 as well as payment of costs to the Texas State Bar in the amount of $1,962.50. The Judgment of Fully Probated Suspension also allowed the Chief Disciplinary Counsel to file a motion to revoke the probation upon information the Respondent violated a term of the judgment. Nothing in the present record indicates such a motion was ever filed.

¶ 4 At the time of her probated suspension, the Respondent was licensed to practice law in Oklahoma and the Oklahoma Bar Association instigated a reciprocal disciplinary proceeding pursuant to Rule 7.7 RGDP. In April 2016, this Court issued an order directing the Respondent to show cause in writing why a final order of discipline should not be imposed or to request a hearing. State ex rel. Okla. Bar Ass'n v. Gaines , 2016 OK 80, ¶ 7, 378 P.3d 1212. The Respondent did not file a response, enter an appearance or request a hearing. Gaines, 2016 OK 80 at ¶ 7, 378 P.3d 1212. This Court held "respondent committed an act of commingling and conversion, neglected legal matters, failed to communicate with clients, failed to supervise an employee that resulted in the unauthorized practice of law, and failed to notify the General Counsel of her disciplinary proceeding." Id. at ¶ 15. We also noted there was no indication the Respondent had been complying with the terms of her probation by making monthly restitution payments. Id. at ¶ 12. An opinion was issued by this Court on June 28, 2016, and Respondent was suspended from the practice of law in Oklahoma for two years and one day. Id. This Court denied her petition for rehearing on September 12, 2016, and the case was closed the same day.

B. Gaines II (the present matter before this Court)

¶ 5 On July 28, 2016, one month after this Court issued its opinion in Gaines I , Veronica Gallegos filed a grievance with the State Bar of Texas against the Respondent. This grievance was based upon the Respondent's professional misconduct incurred while representing Veronica and her sister Nancy in an automobile accident case.

¶ 6 On January 26, 2018, the Evidentiary Panel 14-2 of the Grievance Committee for the State Bar of Texas, District 14, held a hearing. The evidence at the hearing revealed in 2010 Jeffrey Gipson approached the Gallegos sisters in a chiropractic office and offered the Respondent's services.¹³ The Respondent testified she had no knowledge that Gipson had been soliciting her services at that time.¹⁴ Thereafter, the sisters hired the Respondent to represent them.¹⁵ After her first contact with Gipson, Veronica Gallegos claimed her communications between 2010 and 2013 were always with the Respondent and not Gipson.¹⁶ Veronica testified she signed a contract with the Respondent for representation but she did not have a copy of the contract; Nancy testified she did not sign a contract.¹⁷ The Respondent claimed this type of case would normally have been a contingency fee case but she was unsure because she believed Gipson handled the contract.¹⁸ She did not have a copy of the contract due to a "server" crash.¹⁹

¶ 7 After the Respondent terminated her employment of Gipson, she notified Allstate, the insurer in the Gallegos case, that all communications should be made to her and not Gipson.²⁰ This occurred on March 29, 2013. Thereafter, all communications with Allstate were made by the Respondent.²¹ On April 1, 2013, Allstate wrote two letters to its insured stating it had made offers to settle bodily injury claims for Veronica and Nancy Gallegos.²² On June 7, 2013, the Respondent wrote Allstate to inform the insurer that Veronica had agreed to a settlement.²³ On the same day, Allstate wrote the Respondent confirming the acceptance of the offer of settlement for Veronica Gallegos.²⁴ The letter requested a copy of the hospital lien agreement and upon receipt Allstate would issue two checks to the Respondent. On June 14, 2013, the Respondent sent Veronica an email stating she forwarded Veronica's acceptance of the settlement to Allstate and she would need a copy of the creditor's letter regarding a hospital bill.²⁵ Veronica testified that after receiving this email she tried to contact the Respondent but that is when the Respondent "really became M.I.A."²⁶ Two other letters written by Allstate to its insured, dated June 20, 2013, and August 30, 2013, informed the insured that both Veronica and Nancy's claims for bodily injury had been settled.²⁷

¶ 8 On July 19, 2013, Allstate issued a check to Veronica Gallegos, Shanita Gaines and American Chiropractic Clinic as lienholder.²⁸ The amount was for $8,119.00 and the back of the check was endorsed with the signatures of the Respondent, Shanita Gaines, and the signature of Veronica Gallegos. Another check was issued by Allstate on September 11, 2013, to Nancy Gallegos and Shanita Gaines for the amount of $6,826.00.²⁹ The back of this check was endorsed with the signatures of the Respondent, Shanita Gaines, and the signature of Nancy Gallegos. At the evidentiary hearing, Veronica and Nancy testified they did not endorse either check.³⁰ The Respondent could not recall who endorsed the checks for Veronica or Nancy but admitted she had endorsed both checks with her own name.³¹ The Respondent testified she believed the money may have been deposited into her operating account rather than her trust account but she could not recall how the money was used.³² She stipulated that she and not Gipson conducted the settlement with Allstate and neither Veronica nor Nancy ever received any money from the settlement.³³ She further testified she had no explanation why she did not pay the sisters anything from the settlement funds.³⁴ Veronica and Nancy both testified they never knew what happened to their case after they agreed to settle.³⁵ Evidence at the hearing showed Veronica continued attempting to contact the Respondent for almost three years after the settlement to get information on her case.³⁶ After Veronica filed her grievance, the Respondent sent an email to Veronica on November 14, 2016, expressing her...