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State ex rel Oklahoma Bar Association v. Funk4/5/2005
__ P.3d __
RULE 6 BAR DISCIPLINE PROCEEDING
The Oklahoma Bar Association ("OBA") filed a complaint against Respondent, a licensed attorney in Oklahoma, pursuant to Rule 6, RGDP, 5 O.S.2001, Ch. 1, App. 1-A. The complaint and amended complaint, together, state three counts, representing a grievance filed by a Tulsa lawyer who was hired in 2003 to represent Jeffrey Myers, a former client of Respondent's, in a personal injury action previously settled by Respondent in December 1998. In its Trial Panel Report, the Trial Panel of the Professional Responsibility Tribunal adopted the parties' joint stipulations as to certain factual matters and recommended the following: that this Court suspend Respondent from the practice of law for 1 year, with 30 days actually to be served and the remaining 335 days of said 1 year suspension to be suspended or probated with Respondent to complete Trust Account School and Ethics School; with Respondent to submit to an evaluation of his law office and practice by Jim Calloway, Management Assistance Program Director, and follow all recommendations made by Mr. Calloway; and that Respondent pay the costs of the investigation, record, and proceedings associated herewith, as set forth in Complainant's Amended Application to Assess Costs. The total amount set forth in the Amended Application to Assess Costs is $3,481.93. We disagree.
The issues before us concern: 1) whether Respondent indeed violated the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, Rule 1.2, 1.3, 1.4, 1.15, 8.1(a), 8.4(c) and 1.15(a); 2) whether Respondent engaged in conduct that violated Rules 1.4, 5.2 and 1.4(b), Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A; and 3) whether the Trial Panel's recommendations constitute appropriate disciplinary sanctions to be imposed for Respondent's conduct. We hold that Complainant failed to establish the factual allegations against Respondent contained in Count I and Count II by clear and convincing evidence. We further hold that Complainant established the factual allegations against Respondent contained in Count III by clear and convincing evidence and as such, some discipline is warranted. Respondent's behaviors are less egregious than those of attorneys who have been suspended for three months. Accordingly, we publicly reprimand Respondent and admonish him that improprieties in clients' financial matters will not be condoned. In the case at bar, where Respondent has prevailed on two of the three counts, we hold that good cause exists for reducing the costs sought by the OBA, to one-third of the $3,481.93 requested in its Amended Application. Accordingly, costs to be assessed against Respondent are therefore reduced to $1,160.64, to be paid within ninety days of the effective date of this opinion. State ex rel. Oklahoma Bar Ass'n. v. Israel, 2001 OK 42, 32, 25 P.3d 909, 916.
STANDARD OF REVIEW
This Court has exclusive original jurisdiction over Bar disciplinary matters. State ex rel. Okl. Bar Ass'n. v. Donnelly, 1992 OK 164, 11, 848 P.2d 543, 545. Our standard of review is de novo. State ex rel. Okl. Bar Ass'n. v. Lloyd, 1990 OK 14, 8, 787 P.2d 855, 858. Since our cognizance of disciplinary proceedings is not shared with any other institution, we must supervise every aspect of the Bar's adjudicative process by our de novo consideration. As such, the conduct of bar disciplinary functions is distinguishable from trial de novo and from our de novo appellate review on the record, the former a retrial in a different court, the latter, an independent, non-deferential examination of another tribunal's record. State ex rel. Oklahoma Bar Ass'n. v. Johnston, 199
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