¶ 1 The Oklahoma Bar Association (OBA), filed a complaint against attorney Merl Alan Whitebook (Whitebook). The OBA alleges in four counts that Whitebook violated the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A (ORPC), and the Oklahoma Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A (RGDP). Whitebook did not file an answer to the complaint as required by rule 6.4 of the RGDP.
I. STANDARD OF REVIEW
¶ 3 In bar disciplinary proceedings, this Court exercises its constitutional, nondelegable power to regulate 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. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 261. The burden of proof is by clear-and-convincing evidence. State ex rel. Okla. Bar Ass'n v. Rogers, 2006 OK 54, ¶ 9, 142 P.3d 428, 432. In our de novo review, 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. Todd, 1992 OK 81 at ¶ 2, 833 P.2d at 261.
II. COUNT I
¶ 4 The OBA alleges the following facts in count one of the complaint. About June 29, 2007, a client retained Whitebook to handle the probate of an estate and paid Whitebook $1,000.00 as a retainer fee. Whitebook initially performed some work on the case but ceased further work some time in October of 2007.
¶ 5 The client was forced to retain substitute counsel, and the probate was completed about November 5, 2008, at considerable additional expense and hardship on the family. Whitebook has not refunded the unearned portion of the retainer.
III. COUNT II
¶ 6 The OBA alleges the following in count two of the complaint. About July 9, 2008, a client hired Whitebook to handle a probate of an estate and paid Whitebook an $800.00 retainer fee. As of November 9, 2009, Whitebook had failed to take any action on the probate. The client made multiple attempts at communicating with Whitebook which were unsuccessful. Some time after April 8, 2009, the client communicated with Whitebook. Whitebook indicated he was not feeling well but would get to the probate as soon as possible. Whitebook still failed to perform any services for the client. The client requested that Whitebook refund the retainer fee, but Whitebook has failed to do so.
IV. COUNTS III AND IV
¶ 7 In count three, the OBA alleges the following facts. On July 17, 2008, the OBA received the grievance from the client in count one. On July 21, 2008, the OBA sent Whitebook a letter advising him of the grievance and requesting that he respond to the allegations within twenty days. Having failed to receive a response from Whitebook, the OBA sent Whitebook a letter by certified mail on August 18, 2008, asking Whitebook to respond within five days. Whitebook signed for the certified letter on August 19, 2008, but did not respond. The Professional Responsibility Commission issued a subpoena duces tecum for appearance at an investigative deposition. Whitebook appeared at the hearing held on October 2, 2008, but failed to give an adequate reason for his failure to respond to the OBA's investigation.
¶ 9 On May 1, 2009, the OBA mailed Whitebook a letter asking him to respond to the grievance within twenty days. When Whitebook failed to respond, the OBA sent Whitebook a certified letter on May 22, 2009. Whitebook did not sign for the certified letter and, on July 6, 2009, was personally served with a subpoena to appear for an investigative deposition on July 9, 2009. Whitebook did not appear at the deposition. On July 9, 2009, Whitebook called the OBA and left a message that he was in Denver, Colorado, and had received the subpoena on July 8. The OBA's investigator tried unsuccessfully to return the call. Contradicting Whitebook's statement that he was served on July 8, the process server's affidavit shows that Whitebook was personally served at 9:25 p.m. on July 6, 2009, in Bartlesville, Oklahoma. On July 20, 2009, the OBA's investigator sent Whitebook an email informing him that he was "still obligated under our subpoena" and that he needed to contact her as soon as possible.
V. ADDITIONAL FACTS
¶ 10 The OBA filed the complaint in this proceeding and a copy was mailed to Whitebook by certified mail, return receipt requested and restricted delivery, to his official OBA roster address on September 4, 2009. The return receipt shows that Whitebook signed for the complaint at 4:36 p.m. on September 10, 2009. Whitebook did not file a response to the complaint. The certificate of mailing shows, on September 10, 2009, the OBA sent Whitebook a copy of the notice that the hearing before the PRT was set for 9:30 a.m. on October 20, 2009, at the OBA conference room in Oklahoma City, Oklahoma. Whitebook did not appear at the hearing held on the set date. On November 9, 2009, the OBA filed a motion to deem the allegations in the complaint to be admitted. Even though a copy was mailed to Whitebook, he did not respond to the motion.
¶ 11 On October 20, 2009, the PRT held a hearing and took evidence. Whitebook did not appear. Even though the motion to deem the allegations in the complaint to be admitted had yet to be filed in the Supreme Court clerk's office, the PRT had the motion before it at the hearing and considered the motion. At the hearing, the PRT accepted documents into evidence and heard the testimony of the OBA's investigator. The investigator's testimony concerned only counts three and four.
¶ 12 The PRT filed its report on November 13, 2009, in which it accepted the motion to deem the allegations admitted. It also found that Whitebook had properly been served with notice but had wholly failed to respond. Lastly, the PRT recommended that Whitebook be suspended from the practice of for two years and one day and ordered to pay the costs of the proceeding.
¶ 13 On November 13, 2009, the OBA filed its application to assess costs against Whitebook in the amount of $1,226.51. On November 20, 2009, this Court filed a briefing schedule with the OBA's brief being due on December 4, 2009, Whitebook's brief due within fifteen days thereafter, and the OBA's reply brief due ten days after Whitebook's was filed.
¶ 14 The OBA filed its brief on December 4, 2009, Whitebook did not file a brief, and the OBA waived filing a reply brief. In its brief, the OBA asserts that there is sufficient evidence for this Court's de novo review, that Whitebook had sufficient notice to satisfy due process requirements, that the PRT properly sustained the OBA's motion to deem the allegations admitted, and that the OBA proved Whitebook's misconduct by clear and convincing evidence and supported its recommendation of suspension of two years and a day with authority and argument.
¶ 15 When a lawyer fails to file an answer to the complaint, as Whitebook has failed to do, the factual charges in the complaint are
¶ 16 As to counts one and two, the OBA alleges Whitebook has violated rules 1.1,
¶ 17 The facts alleged in counts one and two of the complaint which are deemed admitted under rule 6.4 support the following findings: (1) Whitebook failed to provide competent representation to both of these clients as required by rule 1.1 of the ORPC; (2) Whitebook failed to act with diligence in representing these clients as required by rule 1.3 of the ORPC; (3) Whitebook failed to keep these clients reasonably inform and failed to promptly comply with reasonable requests for information as required by rule 1.4(a)(3) and (4) of the ORPC; and (4) Whitebook failed to charge the client referenced in count two a reasonable fee as required by rule 1.5 of the ORPC, but the allegations in count one do not show that Whitebook failed to provide services in the amount of the retainer fee.
¶ 18 We address next the allegations that Whitebook violated rules 1.15 and 1.16 of the
¶ 19 Rule 1.16 of the ORPC addresses a lawyer's obligations and methods for declining and terminating representation. The complaint does not allege that Whitebook declined representation, that his representation was terminated, or that he failed to surrender papers and property to which his clients' were entitled. The OBA has failed to the show Whitebook violated rule 1.16 of the ORPC.
¶ 20 Rule 8.1(b) of the ORPC requires a lawyer, when requested by the OBA, to respond to a demand for information regarding a grievance. Rule 5.2 of the RGDP requires a lawyer to answer within twenty days after the service of a grievance unless additional time is granted by the OBA. Here Whitebook filed his answer to the first grievance only after being subpoenaed by the OBA and did not file an answer to the second grievance in violation of rule 8.1(b) of the ORPC and rule 5.2 of the RGDP.
VII. FINDINGS AND CONCLUSIONS
¶ 21 A lawyer accused of misconduct must be afforded due process: the lawyer must be given notice of the charges and afforded an opportunity to be heard. State ex rel. Okla. Bar Ass'n v. Seratt, 2003 OK 22, ¶ 7, 66 P.3d 390, 392. Whitebook received notice by mail, certified mail, and personal service of every stage of the proceeding and of the charges against him, and Whitebook was afforded an opportunity to respond to the grievances and to the complaint, to attend the PRT hearing, and to file a brief with this Court. He chose to attend only one deposition and did not otherwise avail himself of opportunities to be heard. We find that Whitebook received sufficient notice and was afforded an opportunity to be heard so that he received his right to due process.
¶ 22 The Court finds that the record is sufficient for our de novo review of the allegations against Whitebook. State ex rel. Okla. Bar Ass'n v. Shomber, 2009 OK 95, ¶ 28, 227 P.3d 157, 162-163. Based on this record, we find that Whitebook violated rules 1.1, 1.3, 1.4, 1.5, and 8.1(b) of the ORPC and Rule 5.2 of the RGDP. The record is insufficient to support a finding of a violation of rules 1.15 and 1.16 of the ORPC, and rule 8.4 of the ORPC and rule 1.3 of the RGDP are inapplicable.
¶ 23 The goal of discipline in bar proceedings is not to punish but to protect the public and the integrity of the judicial system. State ex rel. Okla. Bar Ass'n v. Beasley, 2006 OK 49, 142 P.3d 410. "The integrity of the judicial system demands that lawyers, who are officers of the court, respect its authority." State ex rel. Okla. Bar Ass'n v. Giger, 2003 OK 61, ¶ 34, 72 P.3d 27, 38. This Court's authority in bar disciplinary proceedings extends to the rules promulgated by this Court which govern the proceedings. A person who holds a bar license is subject to these rules and is required to promptly and adequate respond to allegations of misconduct when lawfully requested to do so.
¶ 24 In Beasley, 2006 OK 49, 142 P.3d 410, the lawyer, who admittedly had a substance abuse problem, was charged in six grievances generally of failing to perform legal services for which he was paid, failing to communicate with clients, and failing to refund unearned fees. He did not respond to the grievance, did not respond to the complaint, and did not participate in the proceedings except to appear at the PRT hearing. At the hearing rather than oppose the OBA's motion to deem the allegations admitted, the lawyer stipulated to the motion. This Court suspended the lawyer from the practice of law for two years and a day.
¶ 25 Similarly, in State ex rel. Okla. Bar Ass'n v. Phillips, 1990 OK 4, 786 P.2d 1242, the lawyer was suspended from the practice of law for three years generally for neglecting a client matter, failing to act with reasonable
¶ 26 We find that Whitebook's neglect of his clients' matters and his failure to communicate with his clients warrant discipline. Whitebook's almost total disregard for this Court's authority as exhibited by his failure to respond to a grievance, failure to appear for a deposition for which he was subpoenaed, failure to answer the complaint, and failure to file a brief warrant additional discipline. When a lawyer places so little value on his license to practice law and shows no desire to protect his license, he should be forced to appear before this Court pursuant to rule 11 of the RGDP to show why he should again be allowed to practice law. Thus, we find that the appropriate discipline is suspension from the practice of law for two years and a day. Merl Alan Whitebook is ordered to comply with rule 9 of the RGDP. Pursuant to rule 6.16 of the RGDP, costs are assessed in the amount of $1,226.51 to be paid within ninety days that this opinion becomes final, and reinstatement is conditioned on payment of these costs.
RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; ORDERED TO PAY COSTS.
EDMONDSON, C.J., TAYLOR, V.C.J., and HARGRAVE, WATT, WINCHESTER, and COLBERT, JJ., concur.
KAUGER, J., (by separate writing) concurs in part, dissents in part.
REIF, J., disqualified.
KAUGER, J, concurring in part, dissenting in part:
¶ 1 The complaint filed by the Oklahoma Bar Association (Bar Association) on September 4, 2009, states that the second grievance was originally filed with the Tulsa County Bar Association (TCBA) on January 12, 2009. Apparently, when the lawyer did not respond to the TCBA inquiries, the TCBA forwarded the matter to the Bar Association for a formal investigation on April 8, 2009.
¶ 2 The record reflects that the TCBA sent a letter to the lawyer on January 19, 2009, which provides in pertinent part:
Dear Mr. Whitebook:
¶ 3 Additionally, the TCBA website (www. tulsabar.com) contains a link which provides: "Problems with a Lawyer?" The website also states:
¶ 4 The original jurisdiction of the Oklahoma Supreme Court extends to a general superintending control over all inferior courts and all agencies, commissions and boards created by law.
¶ 5 The Court has original and exclusive jurisdiction in all matters involving administration of persons to practice law in this State and to discipline for cause, any and all persons licensed to practice law in Oklahoma.
¶ 6 Rule 3.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.2010 Ch. 1, App. 1-A, Rule 3.2 provides in pertinent part:
We explained in State ex. rel. Oklahoma Bar Association v. Downes, 2005 OK 33, ¶ 26, 121 P.3d 1058, that, Rule 3.2(i) does not allow a bar member or county Bar Association to determine that a formal complaint should not be initiated or to impose discipline, even by private reprimand.
¶ 7 I have grave concerns regarding this rule and it potential misuse. I thought those concerns might have been diminished when we decided Downes, but today I would revisit the issue and strike Rule 3.2(i) altogether as unconstitutional since its promulgation. Allowing a County Bar Association to screen grievances and to decide whether such grievances may be dismissed or forwarded to the General Counsel should not be authorized. Such an interpretation fails to provide even-handed due and equal process to Oklahoma lawyers.
¶ 8 The respondent lawyer in this cause does not complain of the grievance being forwarded by the TCBA.
¶ 9 The discipline recommended by the Professional Responsibility Commission, the Bar Association and this Court may or may not be comparable to similar situated previous disciplined lawyers. For instance, in the deposition of the respondent lawyer taken on October 2, 2008, the assistant general counsel of the Oklahoma Bar Association appeared to be very sympathetic to his depression, Crohn's disease, and possible onset of prostate cancer. He was asked to elaborate on his health issues, and the Bar Association's lawyer even offered to provide assistance and/or help regarding these health issues.
¶ 10 I do concur that discipline should be imposed. However, I cannot sanction the continuation of allowing a County Bar Association to screen and dismiss grievances on behalf of the General Counsel without referring them to the General Counsel. The TCBA letter suggests that it has continued this practice in contradiction to State ex. rel. Oklahoma Bar Association v. Downes, 2005 OK 33, ¶ 26, 121 P.3d 1058. Again, I would like to know how many causes have been dismissed, if any, since 2005. I would strike Rule 3.2(i) of the Rules Governing Disciplinary Proceedings, 5 O.S.2010 Ch. 1, App. 1-A, and prohibit the General Counsel from delegating the duty to investigate complaints to
The December 10, 2003, letter which was sent to the complainant from the TCBA provides in pertinent part:
The Rules Governing Disciplinary Proceedings, 5 O.S.2010 Ch. 1, App. 1-A, Rule 10.1 provides: