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State ex rel Oklahoma Bar Association v. Loeliger11/1/2005
__ P.3d __
BAR DISCIPLINE PROCEEDING
The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Daniel Lee Loeliger, with one count of professional misconduct regarding his misrepresentation to a client that he had secured a settlement when, in fact, the case was time-barred by the statute of limitations. The Bar Association alleged that the respondent's behavior involved incompetent representation, ineffective communication and consultation with clients, failure to expedite litigation, misrepresentation of facts to his client, and engaging in conduct prejudicial to the administration of justice in violation of Rules 1.1, 1.3, 1.4, 3.2, and 8.4 of the Rules of Professional Conduct and 1.3 of the Rules Governing Disciplinary Proceedings.
Upon a de novo review, we hold that: 1) clear and convincing evidence supports a determination that respondent is guilty of ethical violations; and 2) the respondent's misconduct, his lack of a prior disciplinary history, discipline administered in similar cases, and the fact that his actions did not result in any apparent economic harm to his client warrants a sixty-day suspension and the payment of $348.42 in costs.
FACTS
This case arises from respondent's relationship with a single client, Charles Sullivan (Sullivan). On October 21, 1998, Sullivan was injured while operating a forklift. Sullivan retained attorney Richard Berger (Berger) to represent him in a workers' compensation claim and a separate negligence action against Westquip, the manufacturer of the forklift. Berger filed the workers' compensation action on June 25, 1999, and ultimately settled the case in November of 2000. In October 2000, Berger filed a negligence action, but decided not to handle the matter further. On February 14, 2001, Berger dismissed the case without prejudice and withdrew from representing Sullivan. Berger wrote to Sullivan, informing him that he had one year to refile the case or it would be time-barred.
In August of 2001, Sullivan met with respondent to discuss representation of Sullivan's negligence claim. Respondent asked for Sullivan's hospital records and workers' compensation records. Sullivan contends that he signed a contingency fee contract with respondent at this time. Respondent insists that no contract was ever signed. To date, no such contract has been found. After the initial meeting, Sullivan dropped off the documents at respondent's office, but they did not personally meet.
In October of 2001, Sullivan indicated to respondent that he would like to finish the case before the end of 2002. On January 18, 2002, respondent's father died of a sudden and unexpected heart attack. Respondent did not file any action on Sullivan's behalf before or after Sullivan's negligence claim became time-barred on February 14, 2002.
The next time respondent spoke to Sullivan, some six months later, respondent told Sullivan that he was negotiating with Westquip. Respondent informed Sullivan that Westquip had only offered a fifteen thousand dollar ($15,000) settlement. Respondent also confirmed to Sullivan that a claim had been filed on his behalf in federal court, when in fact, no such suit had been filed. Over the next eighteen months respondent continued to mislead Sullivan, telling Sullivan in October of 2003, that he and Westquip were still locked in heated negotiations over the negligence claim.
In January of 2004, Sullivan again asked for assurance from respondent that the case had been filed. Again, respondent misled his client, claiming that settlement negotiations were in their final stages and reassuring Sullivan that his petition h
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