Wednesday, May 9, 2012

Unauthorized Promises

The Oklahoma Supreme Court has reinstated and imposed a public censure of an attorney who had agreed to a suspension based on his incapacity in March 2010.

The attorney was the subject of a number of bar complaints. At the time:

It is undisputed that during the same period that complaints were being received, [he] was involved in significant personal and professional situations which resulted in his entering an extended period of debilitating depression and anxiety severe enough to bring on panic attacks. Factors contributing to the attorney's mental state included: a difficult divorce involving child custody issues, resulting in the attorney receiving an unsatisfactory visitation schedule; the suicide of a close friend for which, to some extent, [he] thought himself responsible; an extended illness of an office mate increasing the attorney's work load; and an unplanned office split in which the partnering attorney took all the office furniture, the client files, the computer, had the office telephone number transferred, and drained all cash from bank accounts leaving [him] with business-related bills and no resources to pay them.

The attorney sought reinstatement in August 2011. The court treated the petition as a motion to lift the interim suspension and ordered the Bar Association to eastablish either the misconduct or the attorney's incapacity by clear and convincing evidence.

After proceedings, the court found that the attorney had engaged in misconduct but no longer is incapacitated from practice.

The court found that the attorney "was under an incredible amount of stress" in that

[The attorney] has two sons. During the time of the misconduct, he was going through a difficult divorce resulting in time with the children being limited. He felt guilty for failing his sons. Originally, [he] had three attorneys in his firm. One of the lawyers experienced an extended illness during which she was absent from the office, resulting in work loads being increased on the two remaining attorneys. Becoming frustrated with the situation, the second attorney left the practice, leaving [him] responsible for his own clients and those of the remaining lawyer. To add insult to injury, the attorney for whom [he] had been covering came in and took all the office furniture, files, computer, and other equipment, and drained the firm's operating accounts, leaving [him] with bills but no assets. During this period, [he] had already begun to withdraw and was spending most of his time locked in his apartment. One friend tried to call him every day over several weeks, but [he] could not bring himself to pick up the phone. His guilt and withdrawal became worse when he was informed that the friend had committed suicide. [He] began to have panic attacks whenever he attempted to go into his office or to answer phone calls.

The court expressed some concerns about the manner in which the Bar Association handled the matter:

Before addressing the appropriate discipline to be imposed for [the] misconduct, we find it necessary to comment on the manner in which the Bar Association handled this cause. The Bar Association made promises to [the attorney] it had no authority to make. [He] had every right under the disciplinary rules to expect that as long as the matter remained simply a Rule 10 proceeding and this Court did not order otherwise, all proceedings would remain confidential. However, the Bar Association apparently guaranteed confidentiality throught the disciplinary process without any authority...

Because of the promises, the court suspended confidentiality with respect to its opinion but ordered that the records and transcripts of the proceedings remain non-public. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/05/the-oklahoma-supreme-court-has-reinstated-and-imposed-a-public-censure-of-an-attorney-had-agreed-to-a-suspension-basded-on-hi.html

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