State Ex Rel. Oklahoma Bar Ass'n v. Lacoste , 813 P.2d 501 ( 1991 )

ALMA WILSON, Justice:

Respondent lawyer was accused by Petitioner Bar Association of professional misconduct sufficient to warrant professional discipline. Thereafter, the Bar Association and the respondent submitted stipulations of fact and conclusions of law with an agreed recommendation for discipline to the Professional Responsibility Tribunal and to this Court. The trial panel accepted and approved these stipulations, conclusions and recommendation.

On the behalf of a client, Edmond Holloway, the respondent met Bettye Huddle-ston in the respondent’s office. The respondent had agreed to give Ms. Huddle-ston $900.00 in exchange for a reconveyance of property which Holloway had deeded to Huddleston. Mr. Holloway gave the respondent his personal check for $900.00, but the respondent never deposited it. Before Ms. Huddleston arrived at the respondent’s office, he drafted a check against his trust account in the amount of $900.00 and then called his bank in order to stop payment on the check. When Ms. Huddleston arrived, the respondent gave her his trust account check without telling her that payment had been stopped. She reconveyed the property to Mr. Holloway and executed a statement indicating that she had received the deed to the property by mistake.

After the meeting, Ms. Huddleston took the respondent’s check to his bank to negotiate it and the bank refused to honor the check. Meanwhile, the respondent had gone to the Oklahoma County Court Clerk’s Office where he recorded the deed. Subsequently an attorney representing Ms. Huddleston contacted the respondent who told the attorney that Mr. Holloway had directed him not to deposit Holloway’s personal check and not to pay Huddleston. The respondent refused to fund the check or return the deed. In his written response to a grievance filed as a result of respondent’s actions, he falsely stated that he had stopped payment on his trust account check after he had filed the deed and conferred with his client. Subsequently, when the Bar Association deposed him, his testimony was consistent with his written response concerning when he had stopped payment.

The respondent’s conduct in representing to a party that he was presenting payment in exchange for documents when the facts reveal that his check could not be negotiated because he had stopped payment before presenting the check, violates the following Oklahoma Rules of Professional Conduct, 5 O.S.Supp.1990, ch. 1, app. 3-A:

Rule 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice; ...

The respondent’s false statements to the Bar Association in his written response to the grievance and in his deposition violate Rule 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.1981, ch. 1, app. 1-A and Rule 8.4(b) and (c) of the Rules of Professional Conduct. Rule 5.2 of the Rules Governing Disciplinary Proceedings requires that an attorney make a written response to a grievance, and that the response contain a full and fair disclosure of all the facts and circumstances pertaining to his alleged misconduct unless a refusal to do so is predicated upon expressed constitutional grounds. Failure to comply is a separate ground for discipline.

The parties stipulate and the trial panel agree that an appropriate discipline under the facts before this Court is a one year suspension from the practice of law. The parties further stipulate that the respondent will, at least one month prior to filing any affidavit for reinstatement pursuant to Rule 11.8 of the Rules Governing Disciplinary Proceedings, provide the General Counsel of the Oklahoma Bar Association a written report from a licensed psychiatrist or a clinical psychologist evaluating the respondent’s emotional and psychological fitness to practice law. There are no stipulated facts concerning mental or physical illness. In the complaint filed by the Bar Association, there is no allegation that the respondent is personally incapable of practicing law, nor did it allege specific conduct or neglect of duty by the respondent which would justify imposition of psychological evaluation. The respondent’s mental competency is not an issue in this proceeding. See Rules Governing Disciplinary Proceedings, Rules 10.5 and 10.9.

The transcript of the hearing reveals that there was some discussion between the trial panel and the attorneys representing the parties concerning the respondent’s mental state at the time the fraudulent act occurred. Counsel for the Bar Association stated that he took this into consideration in recommending a one-year suspension instead of a more severe discipline. In mitigation the attorneys also agreed that the respondent was attempting to correct a wrong which he perceived had been perpetrated upon his client and that the respondent eventually paid the $900.00 out of his own pocket, having never cashed the check submitted to him by his client. In recommending the suspension of the respondent for one year, the trial panel and parties discussed and approved of the psychological evaluation before the respondent pursues reinstatement one year from now. Given the facts of this case as submitted on stipulations and having reviewed the transcript, we reject the recommendation concerning psychological evaluation. Although the trial panel’s recommendations are accorded great weight, they are advisory in character. The ultimate decision rests with this Court. In bar disciplinary proceedings this Court functions as a licensing court exercising its exclusive original jurisdiction and conducts a de novo review of the entire record before us in our consideration of the appropriate sanction to be imposed when a lawyer has violated the Rules of Professional Conduct. See Oklahoma Bar Association v. Stubblefield, 766 P.2d 979, 982 (Okla.1988).

Excepting the requirement for a psychological evaluation, the recommendation of the Professional Responsibility Tribunal is adopted. The respondent, James T. La-Coste, is suspended from the practice of law for a period of one year from this date. The costs of the proceedings in the amount of $521.02 shall be borne by the respondent. They are to be paid within thirty days after this opinion becomes final.

LAVENDER, DOOLIN, HARGRAVE, KAUGER, and SUMMERS, JJ., concur. OPALA, C.J., HODGES, V.C.J., and SIMMS, J., dissent.