State ex rel. Oklahoma Bar Ass'n v. Benefield

TAYLOR, J. ¶ 1 The Oklahoma Bar Association (the OBA), filed a complaint against attorney Barry W. Benefield (Respondent). The OBA alleges that by his neglectful acts, Respondent violated rules 1.1,1 1.3,2 1.4,3 1.5(a),4 8.4(a), and 8.4(d)5 of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A (ORPC), and rule 1.36 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, ch. 1, app. 1-A (RGDP),7 and that he should be disciplined. ¶ 2 The first issue before this Court is whether Respondent violated the ORPC’s and the RGDP’s rules governing attorneys’ conduct. If so, the second issue is what discipline should be imposed on Respondent. We find that Respondent has violated the ORPC’s and the RGDP’s rules governing attorney conduct. Because Respondent’s serial neglect, six counts from 1991 through the present, shows a pattern of misconduct, we determine Respondent should be suspended from the practice of law for one year. Further, Respondent shall pay the costs of these proceedings. I. BACKGROUND FACTS ¶ 3 The record includes the parties’ stipulations, a transcript of the hearing, and documentary evidence. The factual stipulations are not inconsistent with the record and are adopted by this Court. See State ex rel. Oklahoma Bar Ass’n v. Chapman, 2005 OK 1193 16, ¶¶ 11-12, 114 P.3d 414, 416. To the extent that the stipulated mitigation is inconsistent with the record or is irrelevant as discussed below, the stipulations are rejected. See id. The record shows the following facts. ¶ 4 Respondent was admitted to the practice of law in 1967. Respondent has been disciplined two times previously. Respondent was first disciplined in April of 1991 by the Professional Responsibility Commission (the Commission). The Commission privately reprimanded Respondent for neglecting a client matter. See RGDP R. 5.3(d). Respondent had been retained to locate the birth mother and acquire an original birth certificate for a client. He located the birth mother but failed to take steps to obtain the birth certificate. The OBA notified Respondent of the grievance and of the need to respond. After he did not respond in writing as required, see RGDP R. 5.2, his response was obtained by deposition pursuant to a subpoena. ¶ 5 In 2002, Respondent was again disciplined when this Court suspended him from the practice of law for sixty days. See State ex rel. Okla. Bar Ass’n v. Benefield, 2002 OK 37, 51 P.3d 1198 (Benefield I). In that proceeding, Respondent was disciplined for three counts of client neglect and one count of failing to respond to the OBA’s request for information regarding the grievances. This Court found Respondent had been neglectful, rather than deliberate, but had a pattern of neglect. Id. at ¶ 15, 51 P.3d at 1201. Respondent was remorseful and had reimbursed the clients’ fees. II. CURRENT CHARGES ¶ 6 The first count in this proceeding involves Rowdy Baxter. The second count involves Jeffrey Hunter. The following facts are supported in the record and show Respondent violated the ORPC and the RGDP. A. COUNT I ¶ 7 In October or November of 2002, Respondent agreed to represent Rowdy Baxter on a misdemeanor criminal charge. The case was assigned to the Honorable Russell Hall, Special Judge for Oklahoma County District Court. Had he been called as a witness, Baxter would have testified he paid Respondent $100.00 and later left $300.00 at Respondent’s office with a woman claiming to be Respondent’s girlfriend. Respondent contends he did not receive any payment from Baxter. Respondent recalls Baxter was to remove trash for him in exchange for $100.00 of the fee but Baxter never performed this service. ¶ 8 Respondent lost personal and telephone contact with Baxter. Although Respondent negotiated a plea agreement for Baxter, he never informed Baxter of the agreement. Based on his assertion that he could not contact Baxter by telephone, Respondent sought and obtained at least three continuances of Baxter’s hearings. Baxter appeared for several hearings only to discover Respondent had continued his case. There is no evidence Respondent ever utilized the United States mail service to inform Baxter of the continuances, to inform him of the plea agreement, or to otherwise contact him. ¶ 9 On February 12, 2003, Respondent appeared at 8:45 a.m. in Cleveland County District Court on another matter. On the same day, Baxter appeared for his hearing which was set for 9:00 a.m. in Oklahoma County. Respondent did not appear. Respondent had not informed Judge Hall or Baxter of his scheduling conflict or of his potential lateness for the hearing. When Respondent got to Judge Hall’s courtroom after 11:00 a.m., no one was there. Respondent assumed either Baxter had failed to appear or the case had been continued for at least a week. Respondent did not cheek the case’s status before leaving the courthouse. ¶ 10 When Respondent failed to appear at the February 12th hearing, Judge Hall rescheduled it for the next day, February the 13th. On February 13, Baxter again appeared and Respondent did not. Judge Hall appointed a public defender to represent Baxter. On the advice of the public defender, Baxter entered a guilty plea. Judge Hall reported Respondent’s failure to appear to the OBA’s general counsel. He wrote: “Mr. Barry Benefield abandoned his client.... On 1194 the 8th time on my docket[,] I had the public defender do the plea.” The OBA opened an investigation into the matter. Thereafter, Respondent wrote Judge Hall an apology and paid the cost of the public defender’s services. B. COUNT II ¶ 11 In February of 2003, Respondent was retained to represent Jeffrey Hunter in a felony case in Caddo County. Hunter’s sister paid Respondent $300.00 to present her brother. Respondent agreed to negotiate for a better plea agreement than the ten years incarceration offered by the district attorney’s office. ¶ 12 Respondent asserts that he contacted Assistant District Attorney Jason Glidewell about drug offender work camp which might have reduced Hunter’s incarceration time. Mr. Glidewell does not remember this discussion. ¶ 13 Because of potential scheduling conflicts, Respondent asked Tony Burns, an attorney from Caddo County, to stand in for him at the hearing for entering a plea. Respondent informed Burns that he believed the terms of the plea agreement included a recommendation for drug offender work camp. Burns contacted the district attorney’s office to confirm the agreement only to discover the work camp recommendation was not memorialized in the district attorney’s file. If Burns had been called to testify, he would have stated he called Respondent’s office and left a message that the Hunter case had not been concluded. Respondent contends he did not receive the message and assumed Hunter’s case was concluded. Respondent admits he did not contact Burns or the court to confirm the status of the case. ¶ 14 Hunter’s case remained set for jury trial for April 7, 2003. Because Respondent did not appear in court on April the 7th, and Hunter was unwilling to accept the district attorney’s plea offer of ten years incarceration, the court continued the trial until April 10, 2003. When Respondent failed to appear on April 10, 2003, the court appointed a public defender to represent Hunter. The public defender negotiated a plea, and Hunter was sentenced to eight years incarceration. ¶ 15 The presiding judge, the Honorable David E. Powell, contacted the OBA’s general counsel complaining Respondent had failed to appear for the jury trial. He included a copy of the transcript of the April 10 hearing at which Hunter entered his plea. This transcript was included in the record of these proceedings as an exhibit. III. PROFESSIONAL RESPONSIBILITY TRIBUNAL REPORT ¶ 16 The Professional Responsibility Tribunal (PRT) found that the current misconduct “was not of the same nature as” the misconduct addressed in the previous disciplinary proceedings. Finding Respondent had violated the ORPC and the RGDP, the PRT concluded that an appropriate discipline would be six-month probation and that Respondent should pay the costs of the proceedings. Although the PRT recommended a six-month probation, it did not specify any terms of the probation or consequences for violating the probation. The PRT did recommend that the OBA’s law office management division be directed to assist and monitor Respondent during the six-month probation. The onus of the recommendation was directed at the OBA rather than the Respondent. ¶ 17 The parties claim that the PRT recommended a public reprimand. In adopting this position, both parties rely on the presiding master’s oral statement that Respondent should be publicly reprimanded. We cannot agree with this supposition. Rule 6.13 of the RGDP states that the PRT shall file a written report which includes a recommendation as to discipline. Since the PRT did not include a recommendation of public reprimand in its report, this Court can only conclude that the PRT reconsidered and eliminated this recommended discipline. IV. BE NOVO CONSIDERATION OF PROCEEDINGS ¶ 18 In de novo consideration of bar disciplinary proceedings, this Court exercises its constitutional, nondelegable power to reg 1195 ulate the practice of law and legal practitioners. State ex rel. Okla. Bar Ass’n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344. This Court decides whether misconduct has occurred and, if so, the appropriate discipline to be imposed. State ex rel. Oklahoma Bar Association v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 261. Accordingly, this Court is not bound by the PRT’s findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline. Id. V. ANALYSIS A. VIOLATIONS OF THE ORPC AND THE RGDP ¶ 19 The first issue before this Court is whether Respondent violated the ORPC’s and the RGDP’s ethical rules. Respondent admits he violated rules 1.1, 1.3, 1.4, 1.5, and 8.4(a) and (d) of the ORPC and rule 1.3 of the RGDP. The facts show Respondent violated the ORPC and the RGDP by his negligent representation of his clients. Exercising this Court’s plenary authority, we find Respondent has violated the rules of the ORPC and RGDP and should be disciplined. B. APPROPRIATE DISCIPLINE ¶ 20 Addressing the second issue, we must determine the appropriate discipline based on the current misconduct, the purposes of discipline, past misconduct and discipline, and the mitigating factors. Having considered the current misconduct, we turn to the other considerations. ¶ 21 The purposes of lawyer discipline are to protect the public, to protect the court, to preserve the integrity of the bar, and to deter misconduct by both the lawyer being disciplined and other members of the bar. State ex rel. Oklahoma Bar Ass’n v. Sheridan, 2003 OK 80, ¶ 46, 84 P.3d 710, 719; State ex rel. Oklahoma Bar Ass’n v. Busch, 1993 OK 72, ¶ 16, 853 P.2d 194, 196. In Bolton, this Court articulated the essence of these purposes. 1994 OK 53 at ¶ 21, 880 P.2d at 346. “Professional competence ... is a mandatory obligation imposed upon licensed practitioners.... It epitomizes professionalism. Anything less is a breach of a lawyer’s duty to serve the client.” Id. ¶ 22 The purposes of discipline are best served by examining Respondent’s performance over time and inquiring into his professional history. Bolton, 1994 OK 53 at ¶ 18, 880 P.2d at 345. Our examination and inquiry shows that Respondent has a history of neglect.8 In fashioning the appropriate sanction, we must not only consider the misconduct of this current proceeding but also consider Respondent’s established pattern of neglect and any mitigating or enhancing factors. Id. ¶ 23 The parties stipulated that several factors mitigate the severity of the discipline. First, Respondent has been cooperative. Second, Respondent has acknowledged his misconduct and expressed remorse. Third, Respondent reimbursed the cost of the public defender’s representation of Baxter. Fourth, Respondent apologized to Judge Hall. Fifth, no harm was caused to any client’s case. Sixth, Respondent routinely represents clients who would not otherwise be able to afford an attorney and who do not have an address or telephone number. ¶ 24 We are unimpressed by the stipulated mitigation. Remorse comes easy after being “found out.” Respondent was also remorseful when the charges were brought in Bene-field I. This remorse did not result in Respondent changing his behavior to comply with ethical standards. In fact, the neglect in this proceeding began shortly after his suspension in Benefield I ended. ¶ 25 We cannot acquiesce in the mitigating factor that no client’s case was harmed. While no harm to a case may have resulted, it is innate that a delay in the criminal process caused by an attorney’s failure to appear in court could cause stress for a person faced with a possible loss of liberty or a delay in release from jail. 1196 ¶ 26 Respondent focuses on his representation of indigent and low income clients. The PRT apparently took this into consideration. Competent representation of indigents is very important. However, negligent representation of indigent clients is of little value and can be worst than no representation at all. The standard for representation of indigent clients is no lower than for any other client. This claim of mitigation is without merit. ¶ 27 Respondent’s routine representation of individuals who do not have an address or telephone number making communication difficult is not a mitigating factor in this case. The record does not show that Baxter did not have an address at the time Respondent was representing him or that Respondent attempted to contact Baxter by mail. Hunter was in jail in Anadarko while Respondent was representing him. Respondent had no excuse for any failure to communicate with Hunter. This generalized stipulation is not relevant to these proceedings. ¶ 28 We cannot agree with the PRT that Respondent’s misconduct addressed in this proceeding is of a different nature than that for which he was previously disciplined even though his attitude may be different. Neglect is at the root of Respondent’s misconduct, both here and previously. His responding to the charges in this case, unlike in Benefield I, does not change the nature of the underlying transgressions — neglect. Further, judges, rather than the clients, filing the grievance now before us does not distinguish Respondent’s current misconduct from that of the past. ¶ 29 In his brief, Respondent adopts reasoning similar to the PRT’s. He appears to argue his present transgressions are less egregious than those of the past and this should mitigate the discipline. This is a new and disingenuous argument for mitigation. We reject this as a mitigating factor. ¶ 30 Neglect of client matters is serious and erodes public confidence in the bar and the legal system. This Court represents that every person who holds a license to practice law is worthy of the public’s confidence in carrying out professional duties. State ex rel. Okla. Bar. Ass’n v. Raskin, 1982 OK 39, ¶ 16, 642 P.2d 262, 267. When a lawyer no longer carries out professional duties in accordance with mandatory ethical rules, it is this Court’s duty to impose discipline for the public’s immediate protection. See id. ¶ 31 A history showing a pattern of neglect warrants substantial sanctions. See State ex rel. Okla. Bar Ass’n v. Spadafora, 1998 OK 28, 957 P.2d 114; State ex rel. Okla. Bar Ass’n v. Downing, 1990 OK 102, 804 P.2d 1120. When previous sanctions have failed to correct errant conduct, this Court, in carrying out its duty to protect the public, has no choice but to substantially increase the severity of the sanction. Anything less and the Court would be deserting its constitutionally-vested power as overseer of the legal profession. . ¶ 32 As we stated in Benefield I, the discipline imposed for neglect has ranged from a public censure to two years. Benefield I, 2002 OK 37 at ¶ 14, 51 P.3d at 1200-1201. In State ex rel. Okla. Bar Ass’n v. Rennie, 1997 OK 108, 945 P.2d 494, the respondent attorney failed to diligently and competently represent his clients, failed to keep his clients reasonably informed, failed to respond to the bar about a grievance, and had been previously disciplined. The attorney appeared to be an honorable person, had admitted his mistakes, had taken steps to correct the problems that led to the misconduct, provided pro bono representation to clients, and filled a need by undertaking cases other lawyers avoided. This Court suspended the attorney from the practice of law for one year. ¶ 33 As in Rennie, a one-year suspension meets the goals of attorney discipline in the present proceeding. It is evident that a sixty-day suspension was insufficient to break Respondent’s pattern of neglect. Because of his pattern of neglect, we suspend Respondent from the practice of law for one year. This discipline meets the goals of fostering public confidence in the legal system, protecting the public, and deterring Respondent and other members of the bar. VII. COSTS ¶ 34 The OBA filed a motion to assess the costs of the proceedings against Respondent. 1197 See RGDP R. 6.16. The motion and attached documentation supports an award of $594.55 in costs. Respondent acknowledges responsibility for the costs of these proceedings and does not contest the amount. Therefore, the OBA’s motion is granted. VIII. CONCLUSION ¶ 35 Respondent has violated the rules of professional conduct mandated by the ORPC and the RGDP. Respondent stands suspended from the practice of law for one year from the date this opinion becomes final. He is ordered to pay $594.55 for the costs for these proceedings. RESPONDENT SUSPENDED FOR ONE YEAR; ORDERED TO PAY COSTS. ¶ 36 WATT, C.J., LAVENDER, HARGRAVE, EDMONDSON, TAYLOR, JJ., concur. ¶ 37 WINCHESTER, V.C.J., (“I would suspend respondent for 6 months.”), KAUGER, COLBERT, JJ., concur in part; dissent in part. ¶ 38 OP ALA, J., not participating. Footnotes [1] Rule 1.1 of the ORPC provides: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. [2] Rule 1.3 of the ORPC provides: A lawyer shall act with reasonable diligence and promptness in representing a client. [3] Rule 1.4 of the ORPC provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. [4] Rule 1.5(a) of the ORPC provides: A lawyer's fee shall be reasonable.... [5] Rule 8.4 of the ORPC provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; [[Image here]] (d) engage in conduct that is prejudicial to the administration of justice[.] [6] Rule 1.3 of the RGDP provides: The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action.... [7] The original complaint alleged that Respondent had violated rules 1.16(d) and 8.1(a) and (d) of the ORPC. The OBA asked to amend the complaint to allege that Respondent had violated rule 8.4(a) and (d) instead and to strike rule 1.16(d) from the complaint. Respondent has not objected. The OBA's request to amend the complaint is granted. [8] While not considered here for disciplinary purposes, it is illustrative of his behavior that Respondent, acting pro se, filed his answer in this proceeding one-week late after asking for and receiving an extension of time.