The Dinah Washington Principle: What A Difference A Day Makes

The Oklahoma Supreme Court explained the consequences of a two years and a day suspension in imposing that sanction for a matter involving neglect and failure to cooperate with the bar investigation

A lawyer who has been disciplined by a suspension of two year or less may resume practice upon the expiration of the period of suspension. A suspension from the practice of law for a period of two years and one day is tantamount to disbarment because the suspended lawyer must follow the same procedures for readmittance as would a disbarred counterpart with the exception of taking the bar examination. This means that the "two year and one day" lawyer must follow the procedure for reinstatement of a lawyer whose name has been stricken from the Roll of Attorneys either for non-payment of dues, or through disbarment, or who has resigned membership in the Association.

The client

In 2014, Samuels was driving her rental car on a highway in Texas when Melissa May Pena (Pena) hit Samuels' car and caused her significant injuries. (Significant enough to preclude her from resuming her occupation as a computer server tech/installer.) Pena had been drinking at a bar, and was legally drunk when she caused the accident. The airbags in Samuels' rental car did not deploy, even though Pena was traveling at a high rate of speed when she hit Samuels. At the time of the accident, General Motors had issued a recall on the make and model of the car Samuels was driving due to malfunctioning airbags on impact.

The problem was with the settlement release

Unfortunately, under Texas law, because Samuels settled and released the claims against Pena, Samuels was barred from pursuing against other contributory tortfeasors such as the bar who served Pena. The respondent did not advise Samuels of this ramification when she signed the GEICO release. Meanwhile, the attorney did nothing to preserve any airbag malfunction evidence, and he did not attempt to prevent the car from being destroyed. Consequently, this effectively precluded Samuels from pursuing a products liability claim against General Motors.

Because of her injuries, Samuels was unable to work, had outstanding medical bills, and needed additional medical treatment. She was eligible to apply for relief from the Texas Crime Victim's Fund, which would have helped with her lost wages. Samuels provided the attorney with information to submit the application, but he neglected to do so for six months. With the help of another attorney, Samuels was eventually able to collect some funds from the Texas Crime Victim's Fund.

On October 3, 2014, ESURANCE tendered its policy limits of $50,000.00 for the UM coverage. ESURANCE issued the check to the attorney. The attorney gave Samuels $20,000.00 that day, and then later, $2,500.00 and then an additional $4,200.00. The attorney kept $23,300.00 of the ESURANCE proceeds as his attorney fees. Over the next few months, Samuels disputed the respondent's keeping of the money and directed him to pay outstanding medical bills. The attorney's conduct contributed to Samuels' inability to get further necessary medical treatment, pay all of her medical bills, and to recover more eligible funds from the Texas Crime's Victim's Fund. The attorney also commingled the funds with his personal funds and offered no substantiated accounting as to where the money was used.

By October of 2014, the attorney withdrew from representing Samuels and directed her to contact a Texas lawyer to pursue the claims listed in his contract. This is when she learned that she was precluded from recovery by her GEICO waiver under Texas Law. Samuels sued Glapion for malpractice in the Oklahoma County District Court and the Court awarded her $831,478.47 in damages.

Here

Without doubt, this lawyer has committed acts of client neglect and has violated the public trust. While he initially participated in the disciplinary proceedings, he discontinued participation after filing an answer to the complaint. The attorney's conduct foreclosed the client from being able to pursue both dram shop liability claims as well as product liability claims, thus causing her to lose out on the potential recovery for her injuries.

(Mike Frisch)