In this disciplinary proceeding against a lawyer the issues to be decided are: (1) Is
The Oklahoma Bar Association [Bar] charged Bob Carpenter [Carpenter or respondent], a licensed lawyer, with five counts of professional misconduct. The Bar and Carpenter then entered into a stipulation of facts and agreed conclusions of law with a joint recommendation for a six-month suspension to be followed by a supervised two-and-one-half-year post-reinstatement probation as professional discipline for that misconduct. A panel of the Professional Responsibility Tribunal [PRT] adopted the parties' offer for an agreed disposition of the proceeding.
STIPULATION OF FACTS
Respondent made several non-interest-bearing loans to Brenda Tinner while he represented her in a claim for bodily injury. On June 8, 1987 he deposited a $1,500 settlement check into his operating account. Nine days later he issued a check to Tinner for $750, which represented her portion of the settlement minus $195 that respondent had previously lent her.
Respondent represented Claude Tucker in a claim for workers' compensation. On October 16, 1987, after the case was settled, respondent deposited a check for $3,850 in his trust account. He later issued two checks to Tucker, totaling $3,700. Respondent withheld $150 as repayment for the money he had lent Tucker during the pendency of his case.
Respondent represented Kim Frazier in a claim for bodily injury on a 40 percent contingent-fee basis. He deposited a $1,700 settlement check into his trust account. On June 18, 1987 he issued two checks to Frazier from his trust account — one for $300 and the other for $600. Respondent kept the remaining $800, which reflected his $680 fee and $120 as repayment for money respondent lent Frazier.
Respondent represented Sherry Knox and Angelita Richardson in their claims for bodily injury. During his representation, respondent made loans of $120 to Knox and $125 to Richardson.
Kelly Jo Pitts hired respondent in 1987 to manage stocks she had inherited. He was to secure a transfer of these stocks from Ohio to Oklahoma. As Pitts needed money, respondent was to sell the stocks and remit the funds to her. Pitts, an 18-year-old girl who had never managed a checking account, was believed incapable of handling her financial affairs. On January 15, 1987 Pitts' former lawyer in Ohio transferred the balance of her funds to respondent, who deposited them in his operating account. Respondent helped Pitts open a checking account and an account with an investment company. On February 26, 1987 Pitts executed a power of attorney in favor of respondent, but retained the power to deal directly with her property. She signed several undated letters which state that funds in blank amounts were received from respondent. In June of 1987 respondent opened a trust account and deposited in it all his clients' funds, including those of Pitts. From January 15, 1987 through August 8, 1988 respondent handled $59,715.38 of Pitts' money, which he entrusted to persons working in his office without adequately supervising them. Because respondent did not keep sufficient records, all of these funds cannot be accounted for by tracing them to the point of receipt. Through reconstruction of records, and with the aid of respondent's testimony, all of the funds were later identified. While Pitts would testify that respondent never
AGREED CONCLUSIONS OF LAW
The parties' stipulation concedes, and we agree, that Carpenter's misconduct violates several provisions of the Code of Professional Responsibility
CONCESSION AS TO AVAILABLE MITIGATION
The parties submit that the events surrounding all of respondent's misconduct occurred while he was heavily abusing alcohol. Every day for a two-year period beginning August 1988 respondent attended Alcoholics Anonymous [AA] meetings. He continues to be active in that organization and is now reported to abstain from using alcohol.
THE PARTIES' RECOMMENDATION FOR DISCIPLINE
The parties recommend that respondent (a) be suspended from the practice of law for a six-month period, (b) pay the costs incurred in this proceeding, (c) be subjected to post-reinstatement probation for a two-and-one-half-year period, and (d) be supervised by a designated member of the Lawyers Helping Lawyers Committee
THE RECORD BEFORE THE COURT IS COMPLETE FOR A
DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING
The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings.
The court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all pertinent issues.
Carpenter has admitted, and the record adequately reflects the professional misconduct alleged in Counts 1 through 5. For the enhancement of discipline, the complaint alleges in Count 6 that between 1982 and 1988 respondent received four private reprimands from the Professional Responsibility Commission.
Since Carpenter's return to a life of sobriety in August of 1988 he has been able to take care of his legal practice. The Bar recommends that he be given an opportunity to maintain his practice with "checks and balances in place so that the public is adequately protected." Carpenter testified that he has been in contact with two members of Lawyers Helping Lawyers and a lawyer member of AA who have been helpful in his recovery. The parties stipulated that Carpenter attended AA meetings every day for two years beginning August 1, 1988 and remains active in that organization. According to the Bar, several members of Lawyers Helping Lawyers will participate in supervising Carpenter's probation. Whenever needed, spot audits of a supervised probationer's trust accounts will be performed as part of the Committee's monitoring process.
The record is adequate for our de novo review of Carpenter's professional misconduct and of his alcohol-related incapacity to practice law.
A SIX-MONTH SUSPENSION FOLLOWED BY A SUPERVISED
TWO-AND-ONE-HALF-YEAR POST-REINSTATEMENT PROBATION IS AN APPROPRIATE SANCTION FOR RESPONDENT'S PAST PROFESSIONAL MISCONDUCT
In a disciplinary proceeding the court's responsibility is not to punish but to inquire into the lawyer's continued fitness, with a view to safeguarding the interests of the public, of the courts and of the legal profession.
A lawyer who has dealt grave financial harm to a client falls within a class of most serious offenders.
The PRT's recommendation that Carpenter be suspended from the practice of law for a six-month period followed by supervised probation for two-and-one-half years is approved. Carpenter must (a) sign a "contract" with the Lawyers Helping Lawyers Committee, (b) be supervised by a designated member of the Committee throughout the term of his probation, as well as participate for that length of time in the Alcoholics Anonymous program or in some other recognized organization in conformity to his agreement with the Lawyers-Helping-Lawyers program, (c) report his attendance and status to the designated member-sponsor of the Lawyers-Helping-Lawyers group, and (d) cooperate with the General Counsel of the Bar in any investigation of an alleged unprofessional conduct which has or may come to the Bar's attention. If he fails to comply with the terms of his probation, his Lawyers-Helping-Lawyers sponsor shall be required to report immediately to the General Counsel any violations with a view to pressing for additional disciplinary measures. Within six months of the date of this order Carpenter shall pay costs incurred in this proceeding — $8,523.40.
Respondent stands suspended from the practice of law for six months from the day this opinion becomes final; he shall be subject to supervision for two-and-one-half
LAVENDER, V.C.J., and SIMMS, HARGRAVE, ALMA WILSON and WATT, JJ., concur.
HODGES, C.J., and KAUGER and SUMMERS, JJ., concur in part and dissent in part.
KAUGER, Justice, concurring in part, dissenting in part:
I agree that the respondent, Bob Carpenter (Carpenter/attorney), engaged in conduct warranting discipline. It is uncontested that he: 1) commingled the funds of two clients with his own in violation of DR 9-102(A); 102(A);
Before discipline is imposed upon an attorney, the charges must be established by clear and convincing evidence.
The most recent case involving similar circumstances to be presented to this tribunal involved Attorney "X".
Overreaching for pecuniary gain by an attorney should be vigorously investigated and discipline imposed if warranted. However, the provision of humanitarian, noninterest bearing loans to clients does not warrant discipline.
I could not countenance the imposition of discipline based upon an unconstitutional rule in Smolen; I cannot do so today. I would subject Carpenter to a private reprimand, recommend a continued association with the Lawyers Helping Lawyers Committee, and impose costs. This disciplinary action is warranted solely by his mishandling of client funds.
The present post-code counterpart of DR 5-103(B) is Rule 1.8(e), Rules of Professional Conduct, 5 O.S. 1991, Ch. 1, App. 3-A. The terms of both are identical.
The present post-code counterpart of DR 9-102(A) is Rule 1.15(a), Rules of Professional Conduct, supra note 1. For other cases of "commingling" see State ex rel. Okl. Bar Ass'n v. Geb, Okl., 494 P.2d 299, 301-302 (1972) (commingling of and failing to remit promptly client's funds warrants one-year suspension); State ex rel. Okl. Bar Ass'n v. Hensley, Okl., 560 P.2d 567, 569 (1977) (commingling of client's funds sanctioned by suspension from practice for two years in absence of prior reprimand or misconduct); State ex rel. Okl. Bar Ass'n v. Stephenson, Okl., 798 P.2d 1078, 1080 (1990) (attorney's misconduct in failing to maintain client funds in trust account held to justify public censure and one-year probation with conditions); State ex rel. Okl. Bar Ass'n v. Gasaway, Okl., 810 P.2d 826, 832 (1991) (commingling client's funds and using them for purposes other than those authorized and failing to make a full and fair disclosure to the Bar concerning the grievance sanctioned by a one-year suspension).
The present post-code counterpart of DR 9-102(B)(3) is Rule 1.15(a), Rules of Professional Conduct, supra note 1.
The present post-code counterpart of DR 9-102(B)(4) is Rule 1.15(b), Rules of Professional Conduct, supra note 1.
The present Code of Professional Responsibility counterpart to DR 9-102(A) is Rule 1.15(a), 5 O.S. 1991, Ch. 1, App. 3-A.
The present Code of Professional Responsibility counterpart to DR 9-102(B)(3) is Rule 1.15(a), 5 O.S. 1991, Ch. 1, App. 3-A.
The present Code of Professional Responsibility counterpart to DR 9-102(B)(4) is Rule 1.15(b), 5 O.S. 1991, Ch. 1, App. 3-A.
When this rule was adopted by the Court in 1988, I dissented from this portion of the proposed rules.
It is worth noting that both Louisiana and California have adopted positions which allow advances to clients for living expenses. See Louisiana State Bar Ass'n v. Edwins, 329 So.2d 437, 445 (La. 1976) and Rule 5-104 of the California Rules of Professional Conduct.