State ex rel. Oklahoma Bar Ass'n v. Todd6/9/1992
Complainant, the Oklahoma Bar Association (OBA) charged respondent, Kenneth V. Todd with misconduct warranting discipline. We hold the OBA did not prove by clear and convincing evidence Todd engaged in deceitful or fraudulent conduct toward an opposing party, but the OBA did prove he engaged in deceitful or fraudulent conduct in presentation of evidence to a tribunal to obtain a default judgment. Such misconduct warrants a six (6) month suspension from the practice of law.
In attorney disciplinary proceedings this Court's determinations are made de novo. State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 894 (Okla. 1989). The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with us in the exercise of our exclusive original jurisdiction in bar disciplinary matters. State ex rel. Oklahoma Bar Association v. Lloyd, 787 P.2d 855, 858 (Okla. 1990). Accordingly, neither the findings of fact of a Professional Responsibility Tribunal (PRT) nor its view of the evidence or credibility of witnesses are binding on us and recommendations of a PRT are merely advisory. McMillian, supra at 894. With these principles in mind we turn to a discussion of the matter before us.
Todd was charged with violating Rule 8.4(c) of the Rules of Professional Conduct, 5 O.S. 1991, Ch. 1, App. 3-A. Rule 8.4(c) provides, " t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation ". In that all of the alleged misconduct occurred prior to July 1, 1988, the effective date of the new Rules of Professional Conduct, 5 O.S.Supp. 1988, Ch. 1, App. 3-A, Todd should have been charged under the virtually identical predecessor rule found in the former Code of Professional Responsibility, 5 O.S. 1981, Ch. 1, App. 3, DR 1-102(A)(4). As no issue is raised by Todd in regard to this apparent error on the part of the OBA in charging him and we can discern no prejudice to him in light of the fact Rule 8.4(c) contains no substantive change from the former disciplinary rule we proceed on the basis Todd was properly charged under DR 1-102(A)(4).
The OBA and Todd entered into written stipulations concerning the issues to be tried at the PRT hearing. The stipulations were as follows:
Whether or not Todd, in the handling of Case No. CJ-85-6913, Kenneth Cooper vs. Tulsa Adjustment Bureau, Inc. and McCormick & Co., "engage in conduct involving dishonesty, fraud, deceit or misrepresentation", constituting professional misconduct of a lawyer. [Rule 8.4(c)]
The specific professional misconduct claimed by [the OBA] and denied by [Todd], is that on October 31, 1985, [Todd] had a conversation with Lauren Oswald, employed by McCormick in the legal function department. During that conversation, [Todd] informed Oswald that McCormick was wrongfully garnishing Cooper's pay checks and that if the money was immediately reimbursed the matter would be over with and final. [Todd] failed to tell Oswald a lawsuit had been filed October 30, 1985.
Additionally, on November 27, 1985, [Todd], together with his client, Kenneth Cooper, appeared before Judge Allen Klein for the purpose of taking a default judgment against McCormick. [Todd] failed to inform Judge Klein that the itemized damages of $497.82 prayed for in the petition had, after the filing of the petition, been received by [Cooper]. Also, on November 27, 1985, [Todd] presented to Judge Klein, for the judge's signature, an order granting the default judgment. Todd prepared the order and included the $497.82 actual damages in the award.
We held in McMillian, supra
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