Oklahoma Imposes 90-day suspension on Attorney.

A lawyer signed a settlement agreement for a client. The Oklahoma Supreme Court concluded as follows:

¶16 The formal release of claims against Pappy, et al. (excluding Barnes and Plaxico), was signed by Respondent (using Ms. Miller’s name) and the “signature” was caused to be notarized by Respondent on September 17, 2015. Respondent admits that he tried to replicate Ms. Miller’s signature as close as possible before having it notarized. Respondent also admits that he had no power of attorney or other legal authority authorizing him to sign this agreement using Ms. Miller’s name. However, Respondent alleges that he did have oral authorization to execute the formal release. However, Ms. Miller contended that she did not give Respondent permission to sign this formal release of claims against Pappy, et al….

¶23 Rationale for the “disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, those of the judiciary and of the legal profession.” State ex rel. Okla. Bar Ass’n v. Combs, 2007 OK 65, ¶ 36, 175 P.3d 340, 351 (citations omitted). The measure of discipline imposed upon an offending lawyer should be consistent with the discipline visited upon other practitioners for similar acts of professional misconduct. Id. (citation omitted).

¶24 When we examine the actions taken by Respondent in the case before us, we hold that Respondent violated ORPC Rule 1.15 when he initially and subsequently received settlement checks from the defendants and deposited each into his operating account, a clear violation of the rules of professional conduct resulting in commingling of client funds and personal funds. Respondent acknowledges this violation and accepts full responsibility for it. We evaluate a commingling infraction based on three different levels of culpability, those being (1) commingling, (2) simple conversion, and (3) misappropriation or theft by conversion; each of which must be proven by clear and convincing evidence. State ex rel. Okla. Bar Ass’n v. Combs, 2007 OK 65, ¶ 13, 175 P.3d 340, 346; see also State ex rel. Okla. Bar Ass’n v. Cummings, 1993 OK 127, ¶ 23, 863 P.2d 1164, 1172State ex rel. Okla. Bar Ass’n v. Parsons, 2002 OK 72, ¶ 12, 57 P.3d 865, 868. Each level represents a more serious infraction and thus demands more serious disciplinary action. In this case, Respondent not only commingled the settlement money with his personal funds in the operating account, he reached a point after paying his client the monies due to her, on December 23, 2015, where the balance available in his operating account was only $300.08. At that point, while payments were still due and unpaid for out-side attorney claim interests (approximately $700.00 to Gould and $7,500.00 to Van Meter), the balance in his operating account was only $300.08. By operation of law, at this point there was clear and convincing evidence that his infraction became more than commingling and included simple conversion. However, we find no clear and convincing evidence that he was guilty of level three commingling which involves theft by conversion or otherwise. He never attempted to misappropriate the monies to his personal benefit.

¶25 Respondent’s actions were also a violation of ORPC Rules 8.4(a) and (c). The PRT Report found that Respondent violated Rule 8.4(c) when he endorsed the Formal Release of Claims for the Pappy, et al. settlement, signing his client’s name. Although he claimed that the signature was done with his client’s permission, she disputed that fact. But more seriously, he acknowledged that after he signed the settlement agreement, he caused that signature of his client’s name to be notarized, and by his admission, attempted to make the signature look as much as possible to the client’s signature. Though Respondent claimed to have had the client’s oral consent to affect the signature, his actions reveal that it was not, at the very least, in accord with legal procedures. He admitted that he no power of attorney or other legal authorization to sign his client’s name…

¶31 There is also no question that Respondent violated ORPC Rules 8.4(a) and (c). The more serious violation here is 8.4(c) which states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Respondent here acknowledged that he endorsed the settlement agreement with Pappy, 238*238 et al. with his client’s name, attempting to make it look like his client’s signature, and then having that signature notarized. Though he claimed to have oral consent to do this, he acknowledged that he did not have any legal written authority to do it and his client disputes the oral consent. However, the fact that he acknowledges trying to replicate his client’s signature for notarization established an attempt at misrepresentation.

¶32 Assessing Respondent’s actions and professional conduct violations, we must keep in mind that the disciplinary process is not designed to punish the lawyer but to safeguard the interests of the public, judiciary and the profession itself. Combs, 2007 OK 65, ¶ 36, 175 P.3d at 351. We must also consider that the discipline imposed should bear resemblance to other practitioners for similar violations of misconduct. Id. Although this was Respondent’s first experience as a sole practitioner, we cannot and do not excuse the seriousness of his infractions.

445 P.3d 229

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s