Thursday, January 18, 2018

Double Disbarment For Billing Deceit

The Oklahoma Supreme Court has imposed reciprocal disbarment based on an identical Colorado sanction

The Supreme Court of Colorado determined that Respondent violated Colorado Rules of Professional Conduct (Colo. RPC) 8.4(c) and 1.15A (as well as the former Colo. RPC 1.15(b)), by committing knowing conversion / misappropriation.2 The court determined Respondent knowingly misappropriated roughly $57,338. The amount in question was billed to Respondent's firm Kleinsmith & Associates, PC (in which he was a solo practitioner) by First American Title Company, LLC and First American Title of Montana, Inc. (collectively, First American) for title services in connection with Respondent's representation of a client, U.S. Bank. Respondent obtained the $57,338 from his client U.S. Bank by billing for "title commitment" but proceeded to use the funds U.S. Bank gave him for his firm's unrelated operating expenses rather than paying First American the amount it was owed. First American subsequently filed a lawsuit and obtained a judgment for $55,782 against Respondent's firm, which it has been largely unable to collect.

No comfort here

The record before this Court is clear that Respondent engaged in deceitful billing practices that resulted in his client paying $57,338 for First American's services. That amount was then knowingly misappropriated by Respondent and instead used for other purposes, causing substantial harm to First American. The conduct for which Respondent was disbarred in Colorado warrants disbarment in Oklahoma, given Respondent's failure to contest the Complainant's recommendation, the lack of mitigating circumstances, and Respondent's prior disciplinary history. It is hereby ordered that Respondent Philip M. Kleinsmith be disbarred and his name stricken from the roll of attorneys. As Complainant did not file an application to recover the costs of this disciplinary proceeding, no costs are assessed.

(Mike Frisch)

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