State v. Weigel

• Decision Date: 31 March 2014
• Docket Number: No. SCBD–5864.,SCBD–5864.
• Citation: 321 P.3d 168
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Holman WEIGEL, Respondent.
• Court: Oklahoma Supreme Court

321 P.3d 168

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

v.John Holman WEIGEL, Respondent.

No. SCBD–5864.

Supreme Court of Oklahoma.

Feb. 4, 2014.

Rehearing Denied March 31, 2014.

Attorney Disciplinary Proceeding.

¶ 0 The Oklahoma Bar Association filed a Rule 6 proceeding against the Respondent, John Holman Weigel, alleging violations of the Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. A formal hearing was held before a trial panel of the Professional Responsibility Tribunal, which recommended to the Court that Respondent be suspended from the practice of law for six (6) months. The Complainant recommended suspension for two years and one day. Having reviewed the matter de novo, we suspend the Respondent from the practice of law for two years.

RESPONDENT SUSPENDED FOR TWO YEARS AND ORDERED TO PAY COSTS.

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

Jack S. Dawson, Miller Dollarhide, P.C., Oklahoma City, Oklahoma, for the Respondent.

EDMONDSON, J.

¶ 1 The Oklahoma Bar Association (Bar) filed on August 21, 2012, an amended formal complaint pursuant to Rule 6.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. 1–A, against John Holman Weigel (Respondent), alleging six (6) counts of professional misconduct in violation of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, Ch. 1, app. 3–A, (ORPC) and the RGDP. The parties filed Joint Stipulations, but the Respondent denies the stipulated conduct violated any rules of professional conduct or disciplinary procedure and contends professional discipline is not warranted. The allegations set out below are taken from the stipulated facts.

COUNT I—The Boyd Grievance

¶ 2 The Bar received a grievance from Peggy Jean Boyd on October 26, 2009, regarding the Respondent's representation of her son, Roger D. Boyd. The Bar opened Boyd's grievance for informal investigation and by letter dated November 3, 2009, advised the Respondent of the grievance and requested a response in writing within two weeks. No response was received and the Bar on November 25, 2009, mailed another letter to the Respondent at his official roster address, advising him of his failure to respond to the Boyd grievance and requesting that he do so within five (5) working days from the date of the letter. The Respondent did not respond. By letter of December 23, 2009, the Bar advised it was opening Boyd's grievance for formal investigation and informed the Respondent he was required to respond in writing within twenty (20) days. He responded by letter dated January 8, 2010, and apologized for the delay in his initial response. The Bar alleged violation of Rule 8.1(b) of the ORPC and Rules 1.3 and 5.2 of the RGDP for failure to respond to the Boyd grievance.

COUNT II—The Whiteley Grievance

¶ 3 On July 8, 2009, Cody Alan Whiteley hired the Respondent to represent him in a paternity action pending in Jackson County, Oklahoma. The contract provided that Whiteley would pay a “flat fee” of $12, 000.00, with $6,000.00 due immediately, then payments of $1,000.00 per month until paid in full. The Respondent did not have a trust account. At Respondent's specific request, Whiteley's mother wired $6,000.00 to the Respondent's account with the First State Bank of Altus on July 8, 2009, and then wrote the Respondent a check for $1,000.00 on August 12, 2009, which was deposited into the same account. After the $6,000.00 deposit, the Respondent made numerous disbursements of funds from the general account for personal and business expenses.

¶ 4 On August 27, 2009, the Respondent met with Cody Whiteley in Texas after Whiteley's mother threatened to stop making any further payments and sought to remove herself as Cody's guarantor. The Respondent admits meeting with Whitely but denies it was under threat. The Whiteleys left numerous telephone messages and sent repeated emails expressing their concern that no action had been taken. The Respondent failed to timely respond to their repeated requests about the status of the case. By certified mail dated November 3, 2009, the Whiteleys terminated the Respondent and requested a refund and return of Cody's file. The Respondent did not claim the certified mailing and did not respond to the Whiteleys' request. The Respondent did not provide the Whiteleys with an accounting and he denies that a refund was requested. On November 26, 2009, Cody Whiteley filed a grievance with the Bar alleging neglect of his legal matter and failure to earn the $7,000.00 paid.

¶ 5 The Bar alleged violations of Rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16(d) and 3.2 of the ORPC and Rule 1.3 of the RGDP, asserting the Respondent accepted a flat fee from the client, which he deposited in his operating account, and then failed to properly communicate with the client or to complete the work necessary to earn the fee. The Respondent claimed Whiteley was a difficult client who was hard to communicate with. After the Bar requested him to provide an accounting of the work performed on Whiteley's behalf and a copy of all work product, Weigel responded, by letter from his attorney, asserting the contract was for a flat fee and he earned the entire fee. He admitted he did not have a trust account, but argued he was not required to maintain one because the fee was earned when paid.

COUNT III—The DeLeon Grievance

¶ 6 Tomas DeLeon, III, was convicted on August 19, 2003, in Stephens County District Court, of five counts of lewd molestation. He was sentenced to serve sixteen years imprisonment and his conviction was affirmed on state and federal appeals. DeLeon's mother spoke with the Respondent on January 28, 2010, to see whether anything further could be done in her son's case. The Respondent assured her he could help, even if it meant getting a pardon, and the fee would be $5,000.00. Mrs. DeLeon wired $1,000.00 to Respondent's general account. On February 17, 2010, DeLeon's parents drove from Texas to meet with the Respondent in Altus, at which time he stated three options were available: to seek a pardon, to seek a commutation of the sentence, or to seek a modification of the sentence. He advised them it would take six or eight weeks for him to seek the desired result. The Respondent denies he assured them a result.

¶ 7 The DeLeons would testify they paid the Respondent an additional $4,000.000 by cashier's check, executed a contract with him and turned over their son's legal papers to him. The contract provided for a flat fee of $5,000.00 for the Respondent to represent, appear and act for his client on all currently available administrative and executive remedies relating to his conviction in CF–03–149 in Stephens County, Oklahoma. It provided that all fees were nonrefundable due to time constraints on the attorney and the complexity of the case, but no further fees would be required under the contract. The Respondent told the DeLeons he would notify the prison of his representation and he would call and speak to Tomas. He would either take the necessary documents to the prison or mail them for Tomas to execute. From February 17, 2010, until May 12, 2010, the Respondent did not communicate with Tomas or with the DeLeons. On May 12, 2012, the Respondent answered the phone and told Mrs. DeLeon he would call her the next day at 5:00 p.m. He did not call and Mrs. DeLeon repeatedly left messages requesting that he contact her.

¶ 8 On May 26, 2010, Mrs. DeLeon called from a different phone number and the Respondent answered, but told her to call the next day to make an appointment. The next day, Mrs. DeLeon telephoned the Respondent approximately nine times without getting an answer. On June 9 the DeLeons drove to Respondent's home/office in Altus and repeatedly rang the doorbell, but the Respondent did not answer. They called from a nearby payphone and when the Respondent answered he said he had just come home. When she said his car was parked in the driveway when they came by, he said he had been asleep. They drove back to his home and talked to him outside, asking to see the work he had done. The Respondent told them he would have everything done by June 12, 2010, and arranged to meet with them at 10:00 a.m. that day at his home to show them the paperwork.

¶ 9 On June 12, he gave the DeLeons a one and one-half page letter addressed to “Dear ____,” with no name or address listed. This was purportedly an “Application for Commutation/Parole Consideration of Tomas DeLeon, III.” He told them that he had done all he could for their son and demanded they sign a paper releasing him from all obligations. They refused and asked for a copy of the release, but the Respondent refused to give them a copy if they weren't going to sign it. He told them he would have their son's paperwork completed by June 14, 2010, and would mail it to them. Mrs. DeLeon did not receive any paperwork and when she contacted the Respondent he said he had mailed it. He said he would put another copy in the mail and he then hung up on her. Mrs. DeLeon immediately called back and advised the Respondent they no longer wanted his services. She requested return of her son's legal documents and a refund of their money. The Respondent again hung up on her.

¶ 10 On June 22, 2010, the Respondent gave them the same letter, with a few extra lines added. He did not return the files or make any refund. On July 6, 2010, the DeLeons filed a grievance and the Bar advised the Respondent of the investigation. On August 2, 2010, the DeLeons went to the Respondent's home to pick up their sons's legal documents. He refused to give them the files unless they signed a “Receipt and Acknowledgment.” They refused to sign and the Respondent then presented them with a “Statement of Services Rendered” which reflected they owed him an additional $812.50, although he said he was not going to ask them...