In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Can an "attorney's retaining lien" be impressed on property which has been entrusted to a lawyer for a specific purpose? and (2) Is a one-year suspension with imposition of costs an excessive sanction for Respondent's breach of professional discipline? We answer both questions in the negative.
The Oklahoma Bar Association [Bar] charged Audrey Cummings [Cummings or Respondent], a licensed lawyer, with one count of professional misconduct. The Bar and Cummings stipulated to some facts in contest. After a disciplinary hearing, a panel of the Professional Responsibility Tribunal [PRT] made findings of fact and conclusions of law together with a recommendation for discipline. The PRT concluded that once Cummings learned that she had improperly deposited client's money in her operating account held by her in trust, she had an obligation to return the funds to the client as she had no right to assert in them an attorney's line. The PRT recommended that Cummings be suspended from the practice of law for one year and pay the costs of this proceeding.
On April 6, 1990, Donna W. Aaron [Aaron] retained Respondent's firm, Cummings and Associates, to defend her against the paternal grandparents' quest for visitation and paid the firm a $600 attorney's fee.
The associate, who was handling the two cases, told Aaron that depositions had been scheduled in the grandparents' visitation suit and that $500 was needed to pay the court reporter. On June 7, 1990, the day the depositions were originally set, Aaron
Sometime in December 1990 or January 1991, the associate informed Aaron there was nothing further they could do for her in the parental termination suit. He also told her that the grandparents had withdrawn their motion for visitation relief and did not intend to pursue the matter. In January 1991 Aaron asked the associate to return the $500 given for deposition expense. He explained that he could not determine if a refund was due until a final bill was computed. After making several phone calls in an attempt to secure the refund, Aaron filed a grievance with the Bar on January 17, 1991.
According to the associate, a bill had been prepared on January 17, 1991, charging a balance due of $105.50.
In January 1992, one year after the grievance, Respondent and her associate contacted Aaron in an attempt to work out their differences. Respondent agreed to return the $500 if Aaron would write the Bar a letter explaining that their financial differences had been resolved and that she no longer wished to pursue the grievance. Aaron wrote the letter on January 30, 1992, the day she received the check.
The Bar filed a formal complaint against Respondent on March 27, 1992. The PRT found that Respondent's conduct violated Rule 1.4(b),
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 the Bar disciplinary proceedings.
The court's task cannot be discharged unless the PRT panel submits for a de novo examination of all material issues a complete record of the proceedings.
We hold the record is adequate for our de novo consideration of Respondent's offending past conduct.
RESPONDENT'S RETAINING LIEN CLAIM
Oklahoma law recognizes two types of lien by which a lawyer may secure
The common-law possessory or retaining lien,
Rule 1.4(b) limits the availability of property for attachment of a retaining lien.
Respondent asserts that she had impressed a common-law attorney's retaining lien upon the $500 when the special purpose for which the money was held had ceased to exist. This occurred, she urges, when the grandparents abandoned their quest for visitation. At this point, Respondent argues, she no longer owed a Rule 1.4(b) duty. For the assertion of an attorney's lien Respondent argues she relied in good faith upon Republic Underwriters Ins. Co. v. Duncan.
The Bar counters that Republic Underwriters does not support Respondent's position. Its argument is threefold. Firstly, the $500 is not subject to an attorney's lien because Respondent acquired the money for a specific purpose. Secondly, Respondent's actions do not reflect she asserted a lien. Rather, she appropriated the money without Aaron's approval or knowledge, without a court order and previous notice to Aaron that additional monies were owed. Lastly, the Bar contends that even if a retaining lien had attached, the deposit of those funds in Respondent's operating account would constitute a release of possession which operated to destroy the lien.
Respondent's claim that she was entitled to the $500 because the "special purpose" — the taking of a deposition — no longer existed is without merit. It matters not that the "special purpose" comes to an
The PRT made several findings which dealt with the legitimacy of Respondent's retaining-lien defense and the Bar's effort to discredit her quest for exoneration on the ground that she was asserting a valid claim to the money placed in her operating account.
The PRT concluded that Respondent's reliance on Republic Underwriters
The PRT found (a) that at the time Respondent claimed to have asserted an attorney's lien, she was not even aware of Rule 1.4(b);
The PRT also found that (a) Respondent appeared to have created the entries on the January 17, 1991 bill so that Aaron would own a balance and (b) not all of the entries appear to correspond to work actually performed. According to Aaron, she never received the bill and saw it for the first time when the Bar sent her Respondent's answer to the grievance, with a copy of the bill appended to that instrument. Aaron disagreed with the amount of time charged for several items on the bill and with the necessity of certain research. Respondent testified that the information was taken off
We believe, as did the PRT, that Respondent's frivolous attempt to assert a retaining lien in Aaron's $500 left for deposition expense was simply a sham. Her conduct is reprehensible. It warrants imposition of discipline.
MISHANDLING OF FUNDS
The Bar has charged Respondent with improperly managing the funds entrusted to her in violation of Rules 1.4(b)
Commingling occurs when the client's funds are combined with the attorney's personal funds.
Cummings admits that on July 15, 1990 she placed the $500 check in her operating
The second level of culpability is simple conversion. Rule 1.4(b) reveals that simple conversion occurs when a lawyer applies a client's money to a purpose other than that for which it was entrusted to her.
Even though the purpose for which the funds were given had ceased to exist, Cummings as trustee of those monies should have either returned or transferred
DISCIPLINE TO BE IMPOSED
The PRT has recommended that Cummings be suspended from the practice of law for one year and pay all costs in this proceeding. Respondent asserts that the facts do not warrant this severe a sanction. Rather, she would have us impose practice under supervision for ninety days. A less severe discipline would be more appropriate, she urges, because this area of lawyer's conduct is not clear and the Bar has failed to prove a willful or grossly negligent violation.
Our responsibility in every disciplinary proceeding is not to punish offensive conduct but rather to inquire into a lawyer's continued fitness with a view towards safeguarding the interests of the public, the courts and those of the legal profession.
Recently, in State ex rel. Okl. Bar Ass'n v. Johnston,
Cummings is charged with commingling and conversion of funds by impermissibly taking money entrusted for a specific purpose and applying it toward a claimed fee. The Bar offered evidence that Respondent has twice before been disciplined — once in 1987 by a private reprimand before the Professional Responsibility Commission for improper advertising and solicitation and another time in 1991 by public censure administered by this court in three separate cases
A lawyer's license is a certificate of professional fitness to deal with the public as a legal practitioner. Public confidence in the practitioner is essential to the proper functioning of the profession. A lawyer's continuing pattern of misconduct adversely reflects on the entire Bar and exhibits a lack of commitment to the clients, to the courts and to other members of the Bar. While Cummings' post-grievance return of commingled funds resulted in no detriment to the client, her actions nonetheless call for
Respondent stands suspended from the practice of law for a period of one year from the day this opinion becomes final; costs shall be promptly paid in full as a precondition for her reinstatement.
All Justices concur.
In State ex rel. Okl. Bar Ass'n v. Miskovsky, Okl., 804 P.2d 434, 436-437 (1990), a lawyer held money for the specific purpose of preserving an oil and gas lease. When the lease ceased to exist, the lawyer claimed the money for his attorney's fee. We dismissed the charge of a Rule 1.4(c) violation because, unlike in the present case, it was unclear from the record whether the client had agreed to have those funds apply towards payment of an attorney's fee.
Rule 1.15(c), Oklahoma Rules of Professional Conduct, 5 O.S. 1991 Ch. 1, App. 3-A, explicitly deals with the manner in which a lawyer must handle a client's property that is the subject of a dispute. Rule 1.15(c) provides:
This rule applies even to a client's funds upon which the lawyer asserts a valid lien. See generally, G. Rife, Trust Accounts (Parts I, II, & III) (1982) — Part I (53 OBJ 21), Part II (53 OBJ 1515), Part III (53 OBJ 1841).