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State ex rel. Okl. Bar Ass'n v. Herlihy11/26/1991
Attorney, Robert M. Herlihy, was the subject of a formal complaint filed by the Oklahoma Bar Association, which alleged that he committed acts violative of Rule 1.15 of the Rules of Professional Conduct (Conduct Rules), 5 O.S.Supp. 1988, Ch. 1, App. 3-A, and Rule 1.4 of the Rules Governing Disciplinary Proceedings (Disciplinary Rules), 5 O.S. 1981, Ch. 1, App. 1-A. During the hearing on the complaint, it became apparent to the Professional Responsibility Tribunal that respondent committed other acts of professional misconduct.
Pursuant to Rule 6.15 of the Disciplinary Rules and State ex rel. Oklahoma Bar Association v. Cantrell, 734 P.2d 1292 (Okl. 1987), we have conducted a de novo examination of the entire record. We find and conclude that respondent's misconduct warrants the ultimate sanction of disbarment. We first look to the misconduct alleged in the complaint.
MISAPPROPRIATION OF FUNDS
Evidence before the panel established that Mark Haigler hired respondent to initiate a wrongful death action relating to the death of Haigler's wife. At the time of her death, Haigler's wife had four children who were living with their father, John White, in O'Fallon, Missouri. White also hired respondent to represent the four children, agreeing to have Haigler appointed guardian ad litem for the children in a friendly suit in order to have the district court approve a settlement.
The settlement provided for Haigler to receive $15,000.00 and the children to share $45,000.00. Respondent testified that by agreement with both Haigler and White he was to receive thirty-three percent of the gross amount of the $60,000.00 settlement, that is, $15,000.00, as his attorneys fee. However, the court order approving the settlement shows that each child was to receive $10,287.50 and respondent was only to receive $3,850.00 as an attorneys fee for his services to the children.
Moreover, on the same date as the settlement order, the court issued an Order For Trust in which the court ordered $11,250.00 to be deposited in an account for each of the four children in Boatman's Bank in O'Fallon, Missouri with $962.50 to be immediately withdrawn from each of the accounts to pay respondent for his services.
Respondent received a check from the friendly suit defendants in the amount of $60,000.00 and deposited it into his attorney trust account. He then paid Haigler $10,000.00 for his share which was $15,000.00 minus the $5,000.00 attorneys fee. Later, respondent wrote a $30,000.00 check from his attorney trust account to John White and sent it to him in Missouri. This check had a notation on it that read "as trustee for his 4 minor children," but it was not sent to a trust account in the Missouri bank per the requirements of the court's order. In fact, respondent did not assist White in establishing the trust account nor was there any indication that he provided a copy of the court order to the bank as the court directed him to do. Not only did respondent violate the conditions of the court orders, the $30,000.00 check made out to White was returned unpaid as the account had insufficient funds to cover it. White testified that he contacted respondent about the check, and respondent told him that "he was having some problems with transfers of funds in his bank."
Respondent explained to the Professional Responsibility Tribunal (trial panel) that his trust account was low on funds because he had paid numerous bills for a client and errantly relied upon a sight draft from that client in the amount of $45,000.00 which was to be deposited into his account to cover these bills as well as his attorneys fee for the work. When the draft was not honored,
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