COLBERT, V.C.J.
¶ 1. Complainant, Oklahoma Bar Association (OBA), filed a fourteen-count complaint against Respondent, John B. Hill, pursuant to Rule 6, of the Rules Governing Disciplinary Proceedings, (RGDP), Okla. Stat. tit. 5, ch. 1, app. 1-A (2011), for violating the Oklahoma Rules of Professional Conduct, (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (2011).
¶ 2. The record before this Court includes the: (1) depositions of Respondent and his spouse; (2) OBA's complaint and reply briefs; (3) Respondent's answer brief; (4) OBA's application to assess costs and Respondent's objection thereto; (5) hearing transcript, along with the parties' stipulations and other evidence attached; and (6) PRT's report.
¶ 3. "In bar disciplinary proceedings, this Court exercises exclusive original jurisdiction as a licensing court, not as a reviewing tribunal." RGDP 1.1; State ex rel. Okla. Bar Ass'n v. Berger, 2008 OK 91, ¶ 12, 202 P.3d 822, 825. It is the responsibility of this Court to examine the record and assess the credibility and weight of the evidence in order to determine whether it clearly and convincingly establishes professional misconduct by a respondent and, if so, what the appropriate discipline, if any, should be. State ex rel. Okla. Bar Ass'n v. Stutsman, 1999 OK 62, ¶ 4, 990 P.2d 854, 858. Our review is de novo and we are not bound by the panel's advisory recommendations. State ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 262; State ex rel. Okla. Bar Ass'n v. Wilburn, 2006 OK 50, ¶ 4, 142 P.3d 420, 422. While engaging a full-scale non-deferential de novo review, this Court may approve the PRT's findings of fact, "make its own independent findings ... or take such other action as it deems appropriate." RGDP Rule 6.15(a).
¶ 4. Respondent graduated from the Oklahoma City University, School of Law in 2002. He was admitted to the Oklahoma Bar Association and his name was entered on the Roll of Attorneys in 2004, upon his successful completion of the Oklahoma Bar Examination. At all times relevant to this complaint, Respondent has been duly licensed to practice law in this State, and has never been disciplined by this Court.
¶ 5. Upon admission to the OBA, Respondent worked for a medical malpractice defense firm for two years. In 2006, Respondent and his family moved to Hugo, Oklahoma, his hometown, and established a solo practice. While there, Respondent established the firms's operating and IOLTA Trust Accounts at First United Bank. Respondent's wife, Jamie Hill, had signatory authority on the business' operating account.
¶ 6. Respondent employed Wife, as the office manager. Wife assisted with client intake and managed all of the firm's banking matters-including, reconciling Respondent's operating and trust accounts. Respondent also employed a number of secretarial staff at different times.
¶ 7. In 2007, Respondent and his wife began experiencing marital problems. In addition, the couple struggled with the recent loss of a child. In December 2007, Respondent filed for divorce and removed Wife's name from the business' operating account. Wife and the parties' children moved out of the marital home. The Hills' later reconciled and dismissed the divorce action in January, 2008. Shortly thereafter, Wife instituted a subsequent divorce proceeding and left with the couple's children.
¶ 8. During this turbulent time in the couple's marriage, Respondent began suffering from depression. In August 2008, Respondent checked himself into Valley Hope, an inpatient treatment center in Cushing, Oklahoma. However, he was subsequently released because the inpatient program was restricted to treating individuals with substance abuse problems. So, in September 2008, Respondent relocated to Oklahoma City and entered the Lawyers Helping Lawyers program. Yet, Respondent's practice remained open. All the while, Wife continued to manage Respondent's practice and oversee the firm's operating and trust accounts. In so doing, Wife, along with various secretarial staff, began writing checks on the firm's operating and trust accounts without Respondent's knowledge or consent. It is against this canvas of unfortunate events that the following grievances were lodged.
¶ 9. Teresa Wickson retained Respondent to handle three matters: (1) a personal injury claim; (2) a probate case; and (3) a guardianship proceeding. Both Respondent and Wickson agreed that Respondent was hired on a 45% contingency fee basis for the personal injury case. However, neither party could produce the signed agreement. In February 2008, Respondent settled Ms. Wickson's personal injury case for $20,000. Respondent received two checks from the insurance company, one for $11,000 and the other for $9,000. Respondent and Ms Wickson acknowledged that the $9,000 check represented Respondent's 45% attorney fee and that the remaining check was for the benefit of Ms. Wickson and certain medical lien holders.
¶ 10. Rather than disburse Ms. Wickson's $11,000 settlement check into the trust account, Wife deposited both checks into Respondent's operating account which resulted in the commingling of the client's trust funds with Respondent's personal funds. Over the next several months, communication between Respondent and Ms. Wickson ceased; Respondent failed to provide an accurate accounting of the settlement funds and failed to appear at an emergency hearing in the guardianship proceeding.
¶ 11. Ms. Wickson subsequently retained Tom Hadley to inquire into the status of her personal injury case and resolve the guardianship matter. Mr. Hadley sent several letters to Respondent requesting information regarding Ms. Wickson's personal injury case, to no avail. Mr. Hadley later contacted the insurance company and was advised that Respondent previously settled the claim. Mr. Hadley then contacted Respondent and demanded the settlement funds be delivered to his office.
¶ 12. Tom Hadley, later filed a grievance with the OBA concerning Respondent's representation of Ms. Wickson. Respondent admitted to receiving one of the two checks but denied cashing either one. According to Respondent, he endorsed the $9,000 check representing his portion of the settlement funds, but his staff endorsed the other check and deposited both in his operating account. And, because Respondent was not monitoring his accounts, the monies were commingled with his personal finances and was spent.
¶ 13. On October 5, 2009, Respondent delivered the entire $20,000 to Mr. Hadley and personally paid the medical liens in Ms. Wickson's case. As a result, Respondent did not retain any of his earned fees.
¶ 14. Fred Moores retained Respondent to represent him in a criminal matter scheduled for trial on July 28, 2008. On the way to the trial, from a camping trip with his sons, the radiator exploded and the clutch burned out in Respondent's car. As a result, Respondent failed to appear. The trial judge removed Respondent from the case and assessed the jury fee as a sanction against Respondent.
¶ 15. Respondent subsequently provided the presiding judge with documentation supporting the condition of his vehicle. However, as of the date of the grievance, Respondent has not paid the jury fee upon the advice of his counsel.
¶ 16. In March 2008, Mary Holaday retained Respondent to complete two step-parent adoptions. Respondent charged Ms. Holaday a flat fee of $2,500 for the adoption cases. Ms. Holaday advanced Respondent $1,000 of the retainer fee. Respondent prepared the adoption pleadings, reviewed them with Ms. Holaday, but failed to file the pleadings with the court. Upon discovering the oversight, Ms. Holaday fired Respondent and retained alternate counsel at an additional expense. Respondent offered to complete the adoption for the $1,000 previously paid. Ms. Holaday, however, declined. A year later, Respondent refunded the entire $1,000 retainer. Although a grievance was filed and
¶ 17. In July 2008, Tracy Fields hired Respondent to represent him in a criminal matter. Mr. Fields paid Respondent a $3,000 retainer. Mr. Fields stated that he expected Respondent to prevent the District Attorney from filing charges. However, when the District Attorney filed charges, Mr. Fields immediately filed a bar complaint against Respondent and retained subsequent counsel. The OBA inquired into the matter. However, Respondent failed to timely respond. Additionally, there is conflicting evidence regarding communication between Respondent and Mr. Fields. Respondent ultimately refunded Mr. Fields' $3,000 retainer in November 2009.
¶ 18. The OBA filed a formal complaint on November 2, 2010, but it was later amended on January 31, 2011. Respondent answered on November 2, 2010, and again on February 23, 2011.
¶ 19. The seconded amended complaint alleged that Respondent's conduct violated certain mandatory provisions of the ORPC and the RGDP.
¶ 20. The matter was tried to the PRT on March 9, 2011.
¶ 21. At the hearing, Wife testified that during the time she and Respondent were in the midst of a divorce, she was angry and wanted to "destroy him."
¶ 23. As it relates to Respondent's banking matters-Respondent testified that upon discovering Wife's mishandling of his business accounts, Respondent admonished the bank countless times about permitting unauthorized signers to access his accounts. And, on one occasion, a bank employee was terminated as a result of the bank's questionable practices.
¶ 24. Respondent's Counselor, Rex McLauchlin, testified that he provided weekly therapy to Respondent for the past two years. He testified that at Respondent's initial visit, Respondent suffered from bipolar disorder, hypomania, severe depression, difficulty controlling his emotions, tearfulness, difficulty making decisions and extreme fear; and Respondent likely had been experiencing these symptoms for several years. Mr. McLauchlin referred Respondent to a board certified psychiatrist. The psychiatrist confirmed Respondent was suffering from bipolar disorder and prescribed the appropriate medication. Mr. McLauchlin believed that in the period preceding Respondent's treatment, Respondent's condition impacted his thought process and ability to think through difficult situations. Based on Respondent's medical condition, Mr. McLauchlin opined that Respondent was incapable of practicing law and unable to properly respond to the OBA's complaints.
¶ 25. Additionally, Mr. McLauchlin testified that he notified the General Counsel's investigator of Respondent's bipolar disorder on October 8, 2008 by letter and telephone.
¶ 26. OBA investigator, Sharon Orth, testified that she first met Respondent following his immediate release from Valley Hope. She recalled Respondent came to her office unannounced and advised that he was recently released from the hospital. According to Orth, the purpose of Respondent's visit was to address the grievances lodged against him. Orth recalls that Respondent appeared disheveled and very upset about his family situation and hospital release. Orth required Respondent to sign a medical release form so that she could obtain all of Respondent's medical records from his past and current physicians. Respondent complied and also provided Orth with his new local address.
¶ 27. Lastly, while Orth acknowledged that she spoke with Respondent and Mr. McLauchlin, she denied that either requested the OBA's assistance in winding down Respondent's practice. But, Orth admits that she was unaware that the OBA provided such assistance.
¶ 28. Respondent contended and the OBA agreed, that several factors should mitigate the severity of discipline to be imposed. First, Respondent answered the Complaint in a timely fashion, after receiving proper notice and service of process. Second, during the time of all complaints herein, Respondent was involved in an acrimonious divorce and custody case with his wife. Third, Respondent was suffering from an undiagnosed bipolar condition during all times relevant to the complaints. Fourth, Respondent has sought and obtained treatment for his bipolar condition, and "has successfully and happily reconciled with his wife." Lastly, Respondent has made full restitution to his clients.
¶ 29. The PRT filed its report on April 18, 2011. The panel found that Respondent refused to exercise diligence and timely communicate with clients; was dilatory in the accounting and safekeeping of client funds; failed to supervise non-lawyers; and commingled client funds. Additionally, Respondent failed to timely respond to certain grievances and requests for information from the office of the General Counsel. However, the panel determined that the OBA failed to establish any violations concerning the Fred Moores and Tracy Fields grievances by clear and convincing evidence.
¶ 30. In so finding, the panel recommended the imposition of a public censure, community service, and continued participation in the Lawyers Helping Lawyers program. The panel also recommended that Respondent demonstrate his competence concerning all rules related to use, supervision and management of trust accounts, and demonstrate his understanding of a lawyer's obligation to supervise and monitor non-lawyers in connection with the use of trust accounts. The PRT reasoned that Respondent's undiagnosed medical condition, acrimonious divorce, and custody proceeding prevented Respondent from properly representing his clients and impaired his judgement and decision making abilities. And, while Respondent's actions warrant discipline, the fact that all underlying bar complaints have been resolved, all client retainers have been repaid, and all clients were able to secure subsequent counsel without prejudice, serves to mitigate the severity of Respondent's discipline. The OBA, however, disagrees and urges this Court to suspend Respondent from the practice of law for one year to eighteen months.
¶ 31. Consistent with the parties' stipulations and the evidence presented, the PRT concluded that Respondent's actions violated ORPC Rule 1.3
¶ 33. Respondent has admitted, and the record adequately reflects Respondent's failure to timely return client "[funds] to which the client [was] entitled and [refund] any advance payment of fee or expenses that has not been earned or incurred." ORPC Rule 1.16(d).
¶ 34. The OBA has also alleged that Respondent was derelict in the handling of his office affairs and financial accounting. In particular, the OBA asserted that Respondent failed to properly supervise his employees which allowed them to access the law office's operating and trust accounts for personal use. In so doing, the secretarial staff used a rubber stamp to forge Respondent's signature and cash various checks.
¶ 35. A lawyer is duty-bound to supervise the work of his hired hands. So when a lawyer fails to properly supervise his staff, "particularly when he has knowledge that the employee is engaging in conduct that would violate the Rules of Professional Conduct," that lawyer is guilty of dereliction, State ex rel. Okla. Bar Ass'n v. Taylor, 2000 OK 35, ¶ 19, 4 P.3d 1242, 1251, and has violated ORPC 8.4(a).
¶ 36. Next, the OBA contended that Respondent did not have accounting procedures in place and his office finances were "chaotic." The record reveals that Respondent paid personal bills from the law office's operating account. And, the operating account was overdrawn countless times, including during the time Respondent held Ms. Wickson's settlement funds. This is particularly concerning as the Wickson's settlement funds were mis-deposited into Respondent's operating account, rather than his trust account.
¶ 37. A lawyer has a fiduciary duty to properly manage funds entrusted to his care. And, where as here, a lawyer violates that duty, this Court engages three levels of culpability-commingling; simple conversion; and misappropriation. State ex rel. Okla. Bar Ass'n v. Mayes, 2003 OK 23, 66 P.3d 398. Commingling, the least egregious, arises from a lawyer's failure to keep his monies separate from that of his client's. But, "when the attorney uses client funds for a purpose other than that for which they are intended," the more serious offense of simple conversion has occurred. Id., ¶ 18, 66 P.3d at 404. Misappropriation, the highest level of culpability, occurs when a "lawyer purposefully deprives a client of [monies] through deceit and fraud." Id. Each level of culpability is a violation of a lawyer's fiduciary duty and each must be proven by clear and convincing evidence. Stutsman, 1999 OK 62, ¶ 12, 990 P.2d at 861.
¶ 38. The PRT determined and we agree, that the OBA has failed to establish, by clear and convincing evidence, that Respondent intended to either convert or misappropriate client funds. Rather, the record demonstrates Respondent gave control of his client trust account to his office manager, and then failed to supervise the office manager, examine the records or bank statements. As previously stated, Respondent's failure to supervise the management of the account, or to check the records, permitted a substantial client's check to be endorsed by his staff and then mis-deposited and commingled with his personal funds. In addition, the record reveals that despite Respondent's repeated demands on the bank to deny Wife access to the business's accounts, the bank nonetheless continued to cash checks signed by Wife. Although Respondent, on occasion, was not the actor, the acts of his staff, nonetheless, are imputed to his own doing. It is as if Respondent committed the act himself. Respondent's failure, however, may be traced back to his debilitating medical condition. Of equal importance is the fact that upon discovering Wife's mismanagement of the office finances, Respondent employed a CPA to review the firm's records, changed the firm's bank account numbers, and changed the locks to his office on several occasions. This Court is satisfied with the PRT's finding that Respondent merely commingled client funds.
¶ 39. Having found clear and convincing evidence of professional misconduct, we now turn to a determination of the appropriate sanction for Respondent's actions. The purpose of a disciplinary proceeding is to ascertain the lawyer's continued fitness to practice law and safeguard the interest of the public, the courts, and the legal profession. State ex rel. Okla. Bar Ass'n v. Carpenter, 1993 OK 86, ¶ 16, 863 P.2d 1123, 1129. "Imposition of discipline is designed to foster these aims rather than to be a purely punitive measure imposed for a lawyer's misconduct." Stutsman, 1999 OK 62, ¶ 15, 990 P.2d at 860.
¶ 40. The record contains scant evidence of intentional acts of harmful conduct on behalf of Respondent. Respondent, through his staff, negligently commingled his personal funds with his clients' and was dilatory on several occasions in returning client monies. While Respondent's clients suffered no economic harm, Respondent's delay in returning client funds was detrimental to his clients' interest. See, e.g., Carpenter, 1993 OK 86, ¶ 17, 863 P.2d 1123, 1130 (where this Court found that although the respondent commingled his personal funds with his client's and was dilatory in returning client monies, no detriment was suffered by the clients as all the monies have been accounted for). Although this Court reviews Respondent's actions in the Rule 6 context, which focuses on Respondent's offending past conduct, it is equally important to consider Respondent's undiagnosed depression as a mitigating factor in fashioning the appropriate level of
¶ 41. While depression alone is not sufficient to mitigate discipline, the fact that Respondent recognized his problem; sought, cooperated and successfully completed treatment; and is willing to undergo continued supervision of his condition, are sufficient mitigators to lessen the severity of discipline. In addition, Respondent has expressed remorse and accepted full responsibility for his wrongdoing and the acts of his staff.
¶ 42. This Court agrees with the PRT's recommendation of a public censure and Respondent's continued participation in the Lawyers Helping Lawyers program as an appropriate sanction for Respondent's professional misconduct. A public censure is deemed an acceptable measure of discipline where the harm dealt the client has been fully compensated, State ex rel. Okla. Bar Ass'n v. Martin, 2010 OK 66, ¶ 31, 240 P.3d at 702, and where an attorney engaged in no intentional acts of harmful misconduct, State ex rel. Okla. Bar Ass'n. v. Chapman, 2005 OK 16, 114 P.3d 414. In addition, this Court has previously imposed a public censure where a lawyer committed similar offenses while suffering from a medical condition accompanied by depression. See, Chapman, 2005 OK 16, 114 P.3d 414, State ex rel. Okla. Bar Ass'n v. Southern, 2000 OK 88, 15 P.3d 1; State ex rel. Okla. Bar Ass'n v. Abbott, 2000 OK 64, 11 P.3d 1239; and Carpenter, 1993 OK 86, ¶ 3, 863 P.2d at 1132 (citing a previous unpublished opinion where this Court imposed a private reprimand coupled with the imposition of costs and continued association with a support program for similar offenses). In the instant case, Respondent engaged in no intentional acts of harmful misconduct and voluntarily went to the OBA for help. A public censure is warranted.
¶ 43. "The appropriateness of assessing costs hinges on whether the professional misconduct charges have been proven by clear and convincing evidence and whether the costs are related to a violation of a rule of professional conduct or disciplinary rule." State ex rel. Okla. Bar Ass'n v. Albert, 2007 OK 31, ¶ 27 n. 33, 163 P.3d 527, 538. "If the Bar fails to prove allegations by clear and convincing evidence, costs should not be assessed." Id. citing State ex rel. Okla. Bar Ass'n v. Armstrong, 1992 OK 79, ¶ 7, 848 P.2d 538, 540. When some of the charges have been proven but others have not, this Court has reduced the costs proportionately. See e.g., State ex rel. Okla. Bar Ass'n v. Funk, 2005 OK 26, 114 P.3d 427 (costs reduced proportionately when respondent prevailed on two of three counts); State ex rel. Okla. Bar Ass'n v. Dobbs, 2004 OK 46, 94 P.3d 31 (costs reduced proportionately when respondent had been exonerated in five of fifteen counts); State ex rel. Okla. Bar Ass'n v. Israel, 2001 OK 42, 25 P.3d 909 (costs reduced by two thirds when respondent prevailed on two of three counts).
¶ 44. In this matter, the Bar seeks reimbursement of costs in the amount of $4,925.39 against Respondent. Respondent prevailed on three of the fourteen counts asserted against him. Therefore, the requested costs are reduced proportionately to the amount of $3,869.94 as to Respondent and must be paid no later than one hundred twenty days from the date this opinion becomes final.
CONCUR: COLBERT, V.C.J.; KAUGER, WATT, WINCHESTER, EDMONDSON, REIF, COMBS, GURICH, JJ.
DISSENTS: TAYLOR, C.J.
KAUGER, J., concurring:
This should have been a Rule 10 proceeding.
TAYLOR, C.J., dissenting:
I would suspend this Respondent from the practice of law.
