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State ex rel Oklahoma Bar Association v. Southern11/7/2000
BAR DISCIPLINARY PROCEEDING
Complainant, Oklahoma Bar Association, charged Respondent with five counts of professional misconduct citing neglect of five clients and their respective cases and failure to cooperate with the Oklahoma Bar Association's investigation of the complaints. The Professional Responsibility Tribunal recommended Respondent receive a private reprimand with a period of probation and several specific probationary terms. The reprimand was recommended due to mitigating circumstances, most importantly a severe, untreated vitamin B-12 illness which essentially destroyed Respondent's short term memory. The Tribunal believed Respondent's conduct was not willful and therefore declined to impose a harsher discipline. The bar association requested a public censure. While we agree the mitigation in this case is considerable, we order discipline in the form of a public censure, due to Respondent's failure to protect his clients' interests in the face of his escalating inability to represent them, his lack of candor with the Tribunal with regard to one particular grievance and his criticism of clients in an effort to excuse the neglect.
RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY COSTS.
The Oklahoma Bar Association brought Rule 6 disciplinary proceedings against Respondent attorney, Frederick Southern, in a Complaint and Amended Complaint alleging a collective total of five counts of misconduct relating to the neglect of five clients in Respondent's charge.
The Professional Responsibility Tribunal held a hearing on April 26, 2000. The Tribunal recommended Respondent receive a private reprimand with a period of probation. The terms of probation included the advice and assistance of Lawyers Helping Lawyers, an assessment by the bar association's law office management services, continued good standing in the bar with no disciplinary action during the probationary period, and regular counseling with medical supervision. While the bar association agreed with the Tribunal's recommendation of probation and its conditions, it requested a public censure instead of a private reprimand.
The five counts alleged against Respondent are similar, each consisting of client complaints for neglect of their respective cases. The bulk of Respondent's misconduct occurred in 1997 and 1998. The client neglect took the form of failing to return phone calls, failing to work the files and in general failing to handle the cases with competence and diligence. The bar also alleged that Respondent repeatedly failed to respond to the bar association when it contacted him about the client complaints.
At the time Respondent was failing to care for his clients, he suffered from an illness which completely destroys the body's ability to produce or store vitamin B-12. The illness caused Respondent to experience severe short-term memory lapses, erratic behavior and general physical illness, accompanied by weakness and fatigue. The B-12 illness exacerbated Respondent's already depressed state, caused by deaths in his immediate family. Respondent's illness was so severe he was eventually hospitalized. Ultimately, several biopsies in 1999 revealed Respondent suffered from the B-12 deficiency illness. Prior to the diagnosis, Respondent sought treatment and counseling for depression with only marginal success, as the B-12 illness was the primary factor in his behavior. After receiving treatment and regular B-12 injections, Respondent began timely and effectively responding to the bar's requests.
For the reasons set out in this opinion, this Court imposes a public censure accompanied by a period of probation and conditions in keeping with those
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