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

REIF, J.; T1 On September 30, 2011, the Oklahoma Bar Association, acting through the Chairman of the Professional Responsibility Commission and the General Counsel, filed a complaint with the Office of the Chief Justice against Respondent attorney Christian Rol-low Haave. The complaint sought discipline of Respondent for alleged professional misconduct, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.8. 2001, Ch. 1, App. 1-A. The complaint alleged that Respondent failed to complete legal services on behalf of three clients who hired and paid Respondent to perform such services. The complaint also related that the Complainant met with Respondent to discuss the client grievances and agreed to allow Respondent additional time to file written responses to the grievances. The complaint reports that Respondent did not file a written response within the agreed time nor at any other time, and that Respondent did not respond to written and telephonic attempts to contact her. The complaint asserted that Respondent violated Rules 1.3 and 5.2, RGDP, 5 0.S$.2011, Ch. 1, App. 1-A, and Rules 1.8, 1.4, 1.5, 8.2 and 8.4(b), Rules of Professional Conduct (RPC), 5 0.98.2011, Ch. 1, App. 3-A. The complaint asked this Court to impose discipline for such misconduct as the Court may find equitable and proper. 12 On November 11, 2011, a panel of the Professional Responsibility Tribunal (PRT) held a hearing concerning the allegations in the complaint. Respondent did not appear before the PRT. The General Counsel advised the PRT that attempted service of the complaint upon Respondent by certified mail and process server had been unsuccessful, but that the complaint and notice of the hearing before the PRT were sent by regular mail to Respondent's official bar association roster address and such mailings had not been returned. The General Counsel further advised the PRT that Respondent had not filed a response to either the complaint or the client grievances. In response to both a written motion and oral request by the General Counsel, the PRT ruled that the allegations set forth in the complaint were deemed admitted as provided in Rule 64 RGDP. T8 The allegations of misconduct that were deemed admitted pertained to three instances of client abandonment. The first instance of abandonment was set forth in Count I of the complaint. This count related that Respondent failed to inform client Sheila Kay Ferguson that Respondent had obtained a continuance of the hearing for Ferguson's appointment as guardian of her handicapped adult daughter. Unaware of the continuance, Ferguson appeared alone and the court granted her a temporary guardianship to take care of the daughter's emergency medical needs. Respondent has never informed Ferguson of a reason for obtaining the con [750] tinuance or for discontinuing her representation of Ferguson. Respondent did not return the unearned portion of the $1000 fee and Ferguson completed the guardianship through the services of another attorney at additional expense. [ 4 The second instance of client abandonment was set forth in Count II of the complaint. This count related that Respondent failed to complete a divorce for client Shanna Roberts after a settlement of the issues in the divorcee was reached between the parties. Respondent obtained Roberts' signature to a divoree decree, but did not transmit the decree to opposing counsel. Respondent never gave Roberts a reason for failing to provide the decree to opposing counsel or for discontinuing her representation of Roberts. Respondent did not return the unearned portion of the $2500 fee and Roberts completed the divoree through the services of another attorney at additional expense. 15 The third instance of client abandonment was set forth in Count III of the complaint. This count related that Respondent failed to do any work for. client Devin Seay Love after accepting a $400 fee to represent him in a child custody matter; Respondent did not communicate further with him and did not return the fee. T6 In addition to the deemed admitted allegations, the PRT admitted 48 exhibits offered by the General Counsel and heard testimony from the investigator who attempted to work with Respondent to resolve the client 'grievances. The investigator related that her communication with Respondent was limited to one face-to-face meeting and a few emails, despite repeated efforts to contact Respondent by phone, mail and home visits. The investigator told the PRT that Respondent never denied or contested the allegations in the client grievances, and explained her failure to fulfill her commitments to her clients was due to her illness and the illness and misfortunes of her parents. The investigator reported that Respondent did not provide medical records or any other documentation to support this explanation. In spite of the Respondent's failure to respond or appear, the General Counsel did urge the PRT to consider the fact that Respondent had not been disciplined before as a mitigating factor. T7 Following the hearing, the PRT issued its report, finding that the allegations in the complaint had been proven by clear and convincing evidence. The PRT concluded that Respondent's actions and omissions in the representation of the three complaining clients violated Rules 1.3, 1.4, 1.5, 3.2, and 8.4(d), RPC, and Rules 1.3 and 5.2, RGDP, and such violations constituted professional misconduct,. The PRT recommended suspension for two years and a day. T8 In reaching this recommendation, the PRT took the following mitigating cireum-stances into account: (1) the absence of prior discipline, complaints or grievances, (2) the fact that Respondent took responsibility for her conduct, (3) her claim of illness that caused her fatigue, exhaustion and depression, (4) the investigator's description of Respondent's demeanor as "down" and "look[ing] like she was going through some things," and (5) the legal work that Respondent failed to perform was completed by other counsel and/or courts with no resulting irreparable harm. To determine the proper weight to be given such mitigating factors, the PRT considered discipline imposed in prior cases with similar facts and cireum-stances. Noting that both disbarment and suspension had been imposed in prior similar cases, the PRT felt that disbarment would be too severe discipline in the absence of irreparable harm to the clients. T9 On the other hand the PRT did not believe the mitigating factors were sufficient to deviate from discipline of suspension. The PRT explained that Respondent is not currently fit to practice law in light of the conduct and cireumstances disclosed in the record and is likely to repeat her improper behaviors without intervention. The PRT specially noted that Respondent failed to respond to the complaint, did not appear at trial and did not seek to be heard on any issue. The PRT concluded such actions demonstrate that Respondent is not sufficiently concerned or interested in maintaining or defending her status as a member of the Oklahoma Bar Association. [751] 1 10 In its brief to this Court, the Oklahoma Bar Association argues that suspension of two years and a day is the appropriate discipline for Respondent's professional misconduct. In support of such discipline, the General Counsel cites State ex rel. Oklahoma Bar Association v. Whitebook, 2010 OK 72, 242 P.3d 517, and State ex rel. Oklahoma Bar Association v. Phillips, 1990 OK 4, 786 P.2d 1242. The General Counsel points out that this Court imposed suspension of two years and a day in these cases for similar instances of professional misconduct under comparable facts and cireumstances. 111 In disciplinary proceedings, this Court acts as a licensing court in exercise of our exclusive jurisdiction. State of Oklahoma ex rel. Oklahoma Bar Association v. Wilburn, 2006 OK 50, ¶ 3, 142 P.3d 420, 422. We have a constitutional, nondelegable responsibility to decide whether misconduct has occurred and what discipline is appropriate. Id. We exercise this responsibility, not for the purpose of punishing an attorney, but to assess his or her continued fitness to practice law, and to safeguard the interests of the public, the courts and the legal profession. Id. Our review of the record is de novo in which we conduct a nondeferential, full-scale examination of all relevant facts. Id. 112 In discharging our responsibility to conduct a full-seale examination of all relevant facts bearing on the discipline of a member of the bar of this State, we must first determine if the lawyer accused of misconduct was afforded due process and whether the record is sufficient for de novo review. Whitebook, 2010 OK 72, ¶¶ 21-22, 242 P.3d at 522. In the case at hand, both of these requirements are satisfied. 113 The record filed with this Court reflects that the complaint and all relevant notices were sent by regular mail to the official roster address provided by Respondent and these items were not returned by the postal service. The record contains the complaint that sets forth the factual cireum-stances upon which Respondent's alleged misconduct is based and the specific Rules of Professional Conduct that Respondent is accused of violating. The Complainant Bar Association made every reasonable effort to secure a response from Respondent, including a face-to-face meeting with Respondent, and offered to resolve the client grievances outside the disciplinary process through a diversion program. Respondent did not avail herself of the diversion program, did not provide a written response to the complaint, did not otherwise deny or contest the allegations in the complaint or client grievances, did not appear before the PRT, and did not enter an appearance or file a brief to assist this Court in its de novo review of the proceedings before the PRT. In view of such defaults by Respondent, and the presentment of a record that is fully compliant with the procedural and substantive requirements for proceedings of this nature, we may proceed to independently determine whether Respondent is guilty of professional misconduct and the appropriate discipline in such case. 114 Upon de novo review, we find clear and convincing evidence that Respondent violated Rules 1.3, 1.4, and 1.5, RPC, in her representation of clients Ferguson, Roberts, and Love, and Rule 5.2, RGDP, in the course of this disciplinary proceeding. More particularly, we find that Respondent (1) violated Rule 1.38 RPC by failing to act with reasonable diligence in her representation of these clients, (2) violated Rule 1.4 RPC by failing to communicate that she was not going to complete the services she had been hired and paid to perform, (8) violated Rule 1.5 RPC by charging each client an unreasonable fee by retaining unearned amounts for services she promised but did not perform and (4) violated Rule 5.2 RGDP by failing to file a written response to the General Counsel's notice that clients Ferguson, Roberts, and Love had filed grievances. As for the recommendations by the PRT and General Counsel that we also discipline Respondent for alleged violations of Rule 8.4 RPC and 1.3 RGDP, we again note as we did in Whitebook that these rules are authorities which allow a lawyer to be disciplined and are not provisions mandating conduct. Having said that we hasten to add that these provisions do support the imposition of discipline in this case because Respondent's conduct was prejudicial to the administration of [752] justice as provided in Rule 8.4(d) RPC, and brought discredit upon the legal profession as provided in Rule 1.3 RGDP. Based on the record presented, we conclude that the appropriate discipline for such misconduct is the suspension of Respondent's license to practice law for two years. 1 15 We enter a suspension of two years in this case "not for the purpose of punishing [this] attorney, but ... to safeguard the interests of the public, the courts and the legal profession." Wilburn, 2006 OK 50, ¶ 3, 142 P.3d at 422 (citations omitted). In the White-book case, we stressed that a person who holds a bar license must promptly and adequately respond to allegations of misconduct when requested to do so. Whitebook, 2010 OK 72, ¶ 23, 242 P.3d at 522. Attorneys who fail to respond to client grievances, who fail to answer formal charges of misconduct, and who fail to appear and participate in disciplinary proceedings, not only show blatant disregard for this Court's authority, but reveal how little they value their license to practice law. Id. at ¶ 26, 242 P.3d at 523 Lawyers who fail to discharge these minimal burdens to protect their own interests cannot be expected or trusted to act to protect the interests of clients, the public and the legal profession. - Although suspension for two years and a day as well as disbarment have been imposed for misconduct of the nature disclosed in this case, this Court has reserved the "severest sanction" of removal with proof of fitness for reinstatement for cases where irreparable harm to a client has resulted. See State ex rel. Oklahoma Bar Association v. McCoy, 1996 OK 27, 912 P.2d 856. ¶ 16 As a final matter, we find that Complainant Bar Association incurred costs in the amount of $516.19 for the investigation of the client grievances, the record, and the disciplinary proceeding, all as set forth in Complainant's Application to Assess Costs. Respondent did not file a response to this application. In cases where discipline results, this Court will require the disciplined lawyer to pay the costs within ninety days of the disciplinary opinion becoming final in the absence of good cause to remit all or some portion of same. Rule 6.16 RGDP. No good cause has been shown to relieve Respondent from the burden of paying the costs allowed by Rule 6.16. We further make payment of the costs a condition for reinstatement. Whitebook, 2010 OK 72, ¶ 26, 242 P.3d at 523. RESPONDENT SUSPENDED - FROM THE PRACTICE OF LAW FOR TWO YEARS; COSTS IMPOSED. 17 TAYLOR, C.J., COLBERT, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, and COMBS, JJ., concur. 18 KAUGER and GURICH, JJ., concur specially.