author: LAVENDER, J. ¶ 27 OP ALA, V.C.J.,

text:
    2003 OK 56
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael C. TAYLOR, Respondent.
    No. 4615.
    Supreme Court of Oklahoma.
    May 27, 2003.

      Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for Complainant.
    Respondent, Michael C. Taylor, appearing pro se.
   LAVENDER, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA) brought disciplinary proceed-mgs against respondent, Michael C. Taylor under Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A, as amended. A Professional Responsibility Tribunal trial panel (PRT) found respondent violated the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, as amended, and recommends a public reprimand. We hold respondent engaged in misconduct, a public reprimand is warranted and he should pay the costs of these proceedings. PARTI. STANDARD OF REVIEW.

¶ 2 The review standard in attorney disciplinary eases is as follows:

In attorney disciplinary proceedings [our] determinations are made de novo. 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. [N]either the findings of fact of a [PRT] nor its view of the evidence or credibility of witnesses are binding on us and [its] recommendations ... are merely advisory, (citations omitted)

State ex rel. Oklahoma Bar Ass’n v. Todd, 1992 OK 81, 833 P.2d 260, 262. Even when the parties’ stipulate to misconduct, the stipulations do not bind us for our duty is to review the evidence de novo to decide if misconduct allegations are established by clear and convincing evidence [State ex. rel. Oklahoma Bar Ass’n v. McGee, 2002 OK 32, ¶ 20, 48 P.3d 787, 792], i.e, a degree of proof producing in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established. State ex. rel. Oklahoma Bar Ass’n v. Green, 1997 OK 39, 936 P.2d 947, 949. The review is a full-scale exploration of all relevant facts [State ex. rel. Oklahoma Bar Ass’n v. Doris, 1999 OK 94, ¶ 3, 991 P.2d 1015, 1017] and requires a complete record be made before the PRT, one sufficient for an examination of all pertinent issues, a thorough inquiry into all essential facts, and the crafting of appropriate discipline. Id. The record is adequate for such de novo review.

PART II. OVERVIEW, FACTS AND BACKGROUND.

¶ 3 A hearing, at which respondent testified and 117 exhibits were admitted, was held before the PRT. The record includes the hearing transcript, the complaint against respondent, his answer and the PRT’s written report, with the parties’ joint stipulations attached. The stipulations are detailed, containing fifty-six (56) numbered sentences or paragraphs that span twenty (20) pages. They are broken down into three counts, include sections on agreed aggravating and mitigating circumstances, a discipline recommendation and other matters the parties deem pertinent. No need exists to set out the entirety of the stipulations. It will suffice to discuss them as required to execute our duty to decide if respondent violated pertinent Rules and, if so, the discipline warranted. A joint brief-in-chief and waiver of further briefs was filed by the parties with this Court.

¶ 4 Respondent stipulates he violated Rule 1.15(b)-(c), ORPC, that provide:

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

He also stipulated to violating Rule 8.4(e), ORPC, that provides: “[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.] Although the parties stipulated to its violation, we do not find clear and convincing evidence respondent violated Rule 8.4(c). We do find he violated Rule 1.15(b)-(c) by the way he handled personal injury settlement funds he received while representing a client, Jamie Herdt.

¶ 5 The case springs from respondent’s representation of Ms. Herdt who, in 1997, was injured while a passenger in a vehicle hit by a drunk driver in Texas. Her injuries required treatment, she incurred medical bills and was initially represented by a Texas attorney, Hank Anderson. The record reveals medical bills totaling about $45,600 and involving, at least, thirteen (13) medical providers located in Texas. Also, as we read the record, Ms. Herdt’s medical bills actually exceeded $50,000, but the additional bills are not detailed in the record. Further, although the joint stipulations sometimes refer to medical provider liens in the plural, as we read the parties’ stipulations, coupled with respondent’s testimony and the exhibits admitted at the PRT hearing, respondent was aware of only one medical provider having a lien in its favor at the time he disbursed certain settlement funds in late November-early December 1999. The lienholder was United Regional Health Care System (URHCS)(also known as Wichita General Hospital), URHCS having a statutory hospital lien under Texas law. The parties stipulated that Texas law governs as to whether a medical provider or lienholder may make a claim to settlement proceeds paid by under-insured/uninsured (UM) benefits — the stipulation, in effect, based on the fact the acei-dent occurred and pertinent medical services were received in Texas. Although the parties have not so formally stipulated, in our view, it would also appear to be Texas law that would govern whether a medical provider or lienholder had a legitimate claim to any liability insurance settlement proceeds received by respondent.

¶ 6 In 1999 Ms. Herdt moved to Oklahoma, terminated Anderson and hired respondent. This case is fairly unusual because the initial grievance to the OBA against respondent was by Ms. Herdt. In effect, she asserted a lack of communication on respondent’s part, his alleged failure to completely account to her for all settlement proceeds received by him and frustration about being contacted by collection agencies regarding outstanding medical bills. During the disciplinary process the matter underwent metamorphosis into charges of misconduct about respondent’s treatment of third-party medical providers of Ms. Herdt respecting settlement funds he received. The case is also unusual because although the substantive law of Texas appears applicable to the underlying question of competing disputants’ entitlement to settlement proceeds received by respondent, the ethical obligations of respondent are measured by adherence to the ORPC and the RGDP, i.e., Oklahoma’s professional standards governing a lawyer’s conduct.

¶ 7 In September 1999 Allstate Insurance Company (insurer for the vehicle owner in which Herdt was a passenger) issued a settlement check for $50,000 for UM benefits payable to Herdt and Anderson. The check was mailed to Herdt, given by her to respondent, and with Herdt’s and Anderson’s permission respondent endorsed and deposited it to his trust account in late September 1999. Respondent also negotiated a settlement for $20,000 with the tortfeasor’s insurer, Geico Insurance Company. He requested two checks be issued by Geico, one for $12,417.81, the amount of URHCS’s lien. He asked that check be made payable to him, Herdt and URHCS and that a second check for the remainder ($7,582.19) list him, Herdt and Anderson as payees. The two checks issued and respondent received them about November 23,1999.

¶ 8 The $12,417.81 check was held by respondent, i.e., not deposited to his trust account or any account controlled by him. Eventually, about August 24, 2000, respondent gave the check to Herdt’s new attorney, i.e., nine months after he received it, Herdt having terminated respondent in July 2000. Respondent was unable to deposit the check to his trust account as URHCS never agreed to endorse it because no agreement was reached regarding their medical bill and lien. The $7,582.19 check was deposited to his trust account on or about November 23,1999.

¶ 9 Prior to disbursal of any of the above sums, Herdt, Anderson and respondent agreed the two attorneys would equally share a 40% fee on the gross settlement proceeds collected. There is also clear and convincing evidence that although respondent did not know what Texas law was as to whether medical providers, lienholder or not, could rightfully claim an interest in the liability or UM proceeds received or, if so, the extent of any such interest, nor did he know, under Texas law, the appropriate disposition of the liability proceeds check in the amount of URHCS’s lien or the extent URHCS could rightfully claim an interest therein, on November 24, 1999 he disbursed monies (by check) from his trust account in regard to the Herdt matter as follows:

1. $10,000 to Anderson — the check indicating it was for half the attorney fees owed to Anderson from the $50,000 UM settlement proceeds received, i.e., 20% of $50,000 = $10,000;
2. $1,435.10 to Anderson to reimburse him for costs he had incurred in the Herdt case;
3. $10,000 to respondent’s operating account — the check indicating it was for half the attorney fees owed from the $50,000 UM settlement proceeds received, i.e., 20% of $50,000 = $10,000; and
4. $10,000 to Ms. Herdt — the check indicating it was for “partial settlement payout”.

Still being unaware of Texas law as to the proper disposition of said funds, on December 1, 1999, he disbursed monies (by check) from his trust account in regard to the Herdt matter as follows:

1. $3,791.09 to Anderson for half the attorney fees from the Geico check deposited into his trust account; and
2. $3,791.10 to respondent’s operating account for his half of the attorney fees from the Geico check deposited into his trust account.

¶ 10 The parties stipulate that after assuming Herdt’s case respondent contacted the various medical providers and insurance carriers in an effort to settle the matter, and that prior to disbursing the above amounts he attempted to negotiate with URHCS and the other medical providers to determine their willingness to reduce their bills so that Herdt would be able to receive a portion of the settlement funds. No agreement was ever reached in said regard, however. Further, even though the record shows respondent’s unawareness of exactly what Texas law was on the subject, he took the position with the medical providers, lienholder or not, that each was only entitled to a proportionate share of the liability proceeds after his and Anderson’s attorney fees and costs were deducted therefrom, i.e., a figure he calculated to be about $10,000. In other words, his position was all medical providers were entitled to only their proportionate share of $10,000 and as to URHCS, said entity was not entitled to be paid the full amount of its lien because he and Anderson were entitled to forty (40%) percent of the $20,000 liability proceeds for their attorney fees plus costs. As to the UM proceeds, again being unaware of exactly what Texas law was on the subject, he took the position none of the providers were entitled to any portion of the UM proceeds.

¶ 11 As it turns out respondent appears to have been, at least, partially wrong concerning entitlement to the liability proceeds because under Texas law the lienholder, URHCS (assuming it was the only medical provider having a statutory hospital lien on the liability proceeds, and no other provider had some type of superior interest to the proceeds) was probably entitled to recover the full amount of its lien from the check on which it was co-payee. See Bashara v. Baptist Memorial Hospital System, 685 S.W.2d 307 (Tex.1985)(where personal injury settlement proceeds are sufficient to pay both attorney fees and lien of hospital attorney not entitled to reduce amount of hospital lien to recover attorney fees out of funds from liability insurance proceeds allocated to payment of hospital lien). Contrariwise, respondent appears to have been correct, under Texas law, that unsecured medical providers and URHCS (assuming no assignment by Herdt of an interest in the UM proceeds to any medical provider or some agreement by respondent and Herdt with them that medical bills would be paid from the UM proceeds) had no entitlement or valid claim of interest to any portion of the UM proceeds. However, as noted above, when distribution was made respondent did not know what Texas law was and it was improper to distribute the funds as he did, including distribution of attorney fees to himself and Anderson, with such a state of affairs existing.

¶ 12 The record also contains clear and convincing evidence that prior to receiving the two checks totaling $20,000 from Geico respondent agreed with Geico’s attorney to 1) pay Herdt’s medical bills from said proceeds, or 2) work out agreement with each and every one of the medical providers concerning what part of said proceeds would be paid to them, or 3) barring such an agreement with each and every provider in said regard, he would submit the matter of the proceeds’ distribution to the Texas court where a lawsuit had been filed by Herdt against the tortfeasor for that court to determine a proper distribution of the funds. Respondent did not honor this agreement as he failed to submit the issue to the Texas court after it became clear no agreement was going to be reached with each and every provider that had rendered treatment to Ms. Herdt for her injuries. Furthermore, respondent used part of the proceeds for a portion of the attorney fees ($3,791.10) he was owed in the matter, as well as paying Anderson part of the proceeds for a portion of the attorney fees ($3,791.09) Anderson was owed for his representation of Ms. Herdt.

¶ 13 Although respondent wrote to each medical provider in early December 1999 informing them he had received $20,000 in liability proceeds and $50,000 in UM proceeds he failed at that time to inform any of them, including URHCS, that he had the day before issued checks to himself and Anderson out of the liability proceeds to pay part of the attorney fees due himself and Anderson, or that in late November 1999 he had given $10,000 each to himself and Anderson for attorney fees, and $10,000 to Herdt from the UM proceeds. Respondent, in effect, has agreed he knew at the time it was improper to have given Herdt any money without an agreement from all the medical providers because one or more of the medical providers were making claim to part of the settlement proceeds. Respondent gave Herdt the $10,000 as a humanitarian gesture as she was in need of a vehicle for transportation. We note that because the record shows respondent did not know what Texas law was concerning an appropriate disposition of any of the settlement proceeds it was plainly improper for him to distribute the proceeds as he did.

¶ 14 The record also clearly and convincingly shows that respondent, with respect to the check he held on which URHCS was a co-payee and the remaining UM proceeds not distributed, charted a course of merely trying to wait out the medical providers in an effort to get them to reduce their bills. He held the check and the remaining funds for approximately nine months, when in late August 2000, as above-noted, he turned the check and the remaining UM funds ($18,-564.90) over to Herdt’s new attorney. In fact, a late June 2000 letter from respondent to Ms. Herdt tells her that because all providers have not agreed to sufficiently reduce their bills, it appears she will not be receiving additional monies and that the situation concerning remaining settlement funds was “in a stalemate position.” As we read the letter respondent was also telling Herdt that any resolution concerning an appropriate distribution of the remaining settlement funds was “going nowhere” and no one would receive any of the funds until all providers agreed to sufficiently reduce their claims against Herdt and to dismiss all the medical provider claims against her. The letter also quite plainly expresses the view that respondent was going to remain in this stalemate situation “indefinitely” if all providers would not agree to reduce their bills and release their claims against Herdt. This stalemate situation existed when respondent released the check and funds he was still holding to Herdt’s new attorney, i.e., for a nine month period respondent neither distributed the remaining liability or UM proceeds to any medical provider or Ms. Herdt nor did he take those steps, either in Texas or Oklahoma, to resolve the matter through an appropriate court proceeding, e.g., an interpleader proceeding.

¶ 15 The parties’ stipulations have agreed to certain aggravating and mitigating circumstances. In essence, the aggravating circumstance is that respondent was suspended from the practice of law for thirty (30) days in May 2000 for similar, though not identical, conduct concerning a medical provider that had an interest in certain settlement proceeds received by respondent in his representation of a personal injury client. See State ex. rel. Oklahoma Bar Ass’n v. Taylor (Taylor I), 2000 OK 35, 4 P.3d 1242. Somewhat negating the efficacy of Taylor I as an aggravating circumstance are further stipulations that the occurrences giving rise to the Herdt matter and the matter in Taylor I were proximately close in time. The Herdt misconduct began in late November 1999, prior to this Court’s opinion in Taylor I (May 9, 2000), and the misconduct in Taylor I occurring from November 2, 1998 through June 21, 1999. Because the Herdt grievance was not received by the OBA General Counsel’s Office until late July 2000, it was not able to be considered along with Taylor I. In effect, the OBA has stipulated that respondent should not be considered a repeat offender because of the time frame of Taylor I and the current matter; instead he should be viewed as one who failed to understand his responsibilities to third-party medical providers, one or more of which either have or claim an interest in settlement proceeds received on behalf of his client.

¶ 16 Other mitigating circumstances are that respondent was cooperative in the investigation of the matter, he is remorseful and accepts responsibility for his misconduct, and that prior to Taylor I respondent had not previously been disciplined. Respondent has been an attorney licensed to practice law in Oklahoma since May 1982. He has also agreed that should any of the medical providers owed money by Herdt sue her for recovery of the $10,000 he inappropriately advanced to her in November 1999 he will make personal restitution of the $10,000. Respondent has also implemented new office procedures designed to prevent future misconduct or misunderstandings with third-party medical providers that either have an interest in settlement proceeds he receives in personal injury cases or that claim an interest in said proceeds. We also note that nothing in this matter shows or indicates respondent intentionally misappropriated any of the funds involved, but the situation is one involving his misunderstanding of the import of Rule 1.15(b)-(c), ORPC. The OBA General Counsel’s Office and the PRT recommend respondent receive a public reprimand for his misconduct in the Herdt matter.

PART III. ANALYSIS.

¶ 17 We initially dispose of the matter of respondent’s purported violation of Rule 8.4(c), ORPC. First off, we conclude the record does not show by clear and convincing evidence that respondent made affirmative misrepresentations to the medical providers, including URHCS. At most, the record shows he failed to inform the providers he had disbursed funds to himself, Anderson and Herdt when he knew one or more of them claimed an interest in the settlement funds and when he was unaware of the proper disposition of the funds under Texas law. Also, the record shows he failed to take the steps necessary to resolve the question of entitlement to proceeds he was retaining (the URHCS co-payee/liability check and the remaining UM proceeds). We do not believe such conduct alone clearly and convincingly exhibits violation of Rule 8.4(c). Further, for conduct to constitute a violation of Rule 8.4(c) “[a] misrepresentation must be shown by clear and convincing evidence that the de-clarant had an underlying motive (i.e., bad or evil intent) for making the statement.” State ex rel. Oklahoma Bar Ass’n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1143. We discern from this record no such improper motive; hence, we do not find a Rule 8.4(c) violation.

¶ 18 The record does, however, clearly and convincingly show violations of Rule 1.15(b) and (c). A part of the comment to Rule 1.15 provides:

Third parties, such as a client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.

Where a lawyer knows there is a dispute over funds in his hands and he is unaware at the time of disbursal, under applicable law, who is actually entitled to the funds, he violates Rule 1.15(b) and/or (e) when he disburses the disputed funds to a disputant, even though in hindsight under the applicable law it might eventually be judicially decided the funds were disbursed correctly because one or more of the disputants had no valid claim to the funds or a portion thereof. See Butler v. Commission for Lawyer Discipline, 928 S.W.2d 659, 662-663 (Tex.App.Corpus Christi 1996). Another way to say this is that if the lawyer has good faith doubt about who is entitled to funds coming into the lawyer’s hands, he should deposit them in his trust account (or otherwise appropriately safe keep the property when it is of a kind not subject to deposit in a trust account) pending resolution of the dispute either by some fit informal methodology or, if necessary, by appropriate formal proceeding, e.g., an interpleader proceeding. Arizona Ethics Opinion 88-06 (1988) aptly states our view of the appropriate course of action for an attorney to follow in a similar, though not identical, situation to that faced by respondent.

[I]f, in the circumstances (including the factual background and the lawyer’s assessment of applicable law), the lawyer is satisfied that either the client or the ... claimant is entitled to receive the funds, the lawyer should pay the funds accordingly; but, if the lawyer has any good faith doubt as to who is entitled to receive the funds, the lawyer should hold the funds in trust pending resolution of the dispute or, if necessary, should commence an inter-pleader action or other formal proceeding to resolve the dispute.

Respondent plainly had good faith doubt about the propriety of the funds’ distribution.

¶ 19 Further, where there is a legitimate dispute over entitlement to funds in a lawyer’s possession the attorney cannot simply hold the funds indefinitely. A lawyer’s duty under Rule 1.15(b) is to “promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive”. Rule 1.15(b)’s prompt delivery requirement, coupled with the lawyer’s duty under Rule 1.3, ORPC to “act with reasonable diligence and promptness in representing a client” mandate that after a reasonable period of time, if no one else involved has done so, that the lawyer institute appropriate proceedings to resolve the dispute. An attorney cannot simply chart a course of holding the funds “indefinitely” in a “stalemate position” when either the client or the third person are entitled to the funds or a part thereof. Arizona Ethics Opinion 88-06, swpra, delineates the proper course to follow when it states:

[A]s a general rule, the lawyer’s obligations do not permit the lawyer to hold the disputed funds in trust indefinitely without taking some action to resolve the dispute. Therefore, absent special circumstances, the lawyer may wait a reasonable period (the length of which will depend on the facts of each situation) to determine if the dispute can be informally resolved, but, if the dispute has not been informally resolved within a reasonable period (and the third person claiming an entitlement has not already initiated formal proceedings), the lawyer should take the initiative to have the dispute resolved by an interpleader action or other formal proceeding.

¶ 20 Knowing one or more of Herdt’s medical providers were claiming interest in the settlement proceeds he had received, and not knowing Texas law as to exactly what their interest was or exactly how to distribute the proceeds appropriately under the law, respondent disbursed much of the proceeds to himself, Anderson and Herdt. He then embarked on a course of potentially indefinite delay with regard to the remaining proceeds he was holding even though he knew either one or more of the providers or Herdt were entitled to the bulk of the funds he had retained. As we view the record, respondent was willing to remain on this course indefinitely notwithstanding Rule 1.15(b)’s requirement that an attorney promptly deliver to the client or third person any funds or other property the client or third person is entitled to receive. Respondent’s overall conduct violated both Rule 1.15(b) and (c), ORPC, conduct we cannot and will not condone.

PART IY. DISCIPLINE.

¶ 21 In disciplinary proceedings this Court does not act as a reviewing tribunal, but as a licensing court in the exercise of our exclusive original jurisdiction. State ex. rel. Oklahoma Bar Ass’n v. Doris, supra, 1999 OK 94, ¶ 36, 991 P.2d at 1024-1025; State ex rel. Oklahoma Bar Ass’n v. Downing, 1990 OK 102, 804 P.2d 1120, 1122. Our constitutional, nondelegable responsibility is to decide the appropriate discipline for an attorney found to have engaged in professional misconduct. Id.; State ex rel. Oklahoma Bar Ass’n v. Barnett, 1997 OK 61, 940 P.2d 493, 495 (Court’s duty in misconduct cases is to independently determine the proper discipline).

¶22 Our responsibility in such matters is exercised not for the purpose of punishing an offending lawyer, but to assess their continued fitness to practice law. Doris, supra, 1999 OK 94, ¶ 37, 991 P.2d at 1025; State ex rel. Oklahoma Bar Ass’n v. Meek, 1994 OK 118, 895 P.2d 692, 699. The task must be performed to safeguard the interests of the public, the courts and the legal profession. Id. Before arriving at appropriate discipline, however, we must also consider the deterrent effect upon both the offending respondent and other attorneys who might contemplate similar conduct in the future. State ex rel. Oklahoma Bar Ass’n v. McMillian, 1989 OK 16, 770 P.2d 892, 899; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, 567 P.2d 975, 978. Other properly considered factors are comparing the circumstances in the matter at hand with previous disciplinary matters, and examining an attorney’s past record of professional behavior. Doris, supra, 1999 OK 94, ¶ 38, 991 P.2d at 1025; Meek, supra, 895 P.2d at 700. Mitigating circumstances, of course, may also be considered in gauging the proper measure of discipline. State ex rel. Oklahoma Bar Ass’n v. Thomas, 1995 OK 145, 911 P.2d 907, 913. Finally, though discipline should be administered fairly, i.e., evenhandedly, we have recognized that the extent of discipline must be decided on a case-by-case basis as each situation usually involves different transgressions and mitigating circumstances. Doris, supra, 1999 OK 94, ¶ 38, 991 P.2d at 1025.

¶ 23 We have found no previous disciplinary case of this Court that precisely mirrors the situation here. Many cases we have dealt with in the area of an attorney’s responsibility to third-party medical providers are more egregious than the circumstances shown here and involve the situation where an attorney unequivocally agrees to pay medical providers and either fails to do so until a bar complaint is brought or for an extended period of time. See e.g. State ex rel. Oklahoma Bar Ass’n v. Wilkins, 1995 OK 59, 898 P.2d 147 (six month suspension warranted when attorney agrees with client to pay the client’s medical bills from settlement proceeds and he fails to pay the bills until aware of complaint filed against him with OBA; other misconduct, including dishonest conduct toward client, also involved); State ex. rel. Oklahoma Bar Ass’n v. Stormont, 2001 OK 80, 37 P.3d 795 (attorney agrees with client to hold money from settlement proceeds to pay client’s medical bills but delays for lengthy period of time in doing so suspended for eighteen — 18—months). In the present situation respondent is not charged with affirmatively failing to pay a provider after he agreed to do so, but primarily with disbursing monies when he was unaware of the applicable law of a sister state as to the appropriate disposition of the funds and failing to take reasonable steps to resolve a dispute over the ultimate disposition of settlement proceeds after it became apparent the dispute was unresolvable informally.

¶ 24 As we have previously noted, the parties have stipulated that respondent has instituted office procedures designed to prevent future misconduct or misunderstandings with third-party medical providers that either have an interest in settlement proceeds he receives in personal injury cases or that claim an interest in said proceeds. Furthermore, the parties have, in effect, stipulated that respondent should not be viewed as a repeat offender by virtue of Taylor I, a matter in which he was suspended for thirty (30) days for similar, though not identical, conduct. Given his previous suspension and our firm conviction that it is unlikely, in the future, that respondent will engage in conduct violative of Rule 1.15, ORPC, we conclude respondent’s public reprimand will serve the purposes underpinning the disciplinary process.

¶ 25 Accordingly, RESPONDENT, MICHAEL C. TAYLOR IS HEREBY PUBLICLY REPRIMANDED AND ORDERED TO PAY THE COSTS OF THIS PROCEEDING IN THE AMOUNT OF $548.82 WITHIN NINETY (90) DAYS FROM THE DATE THIS OPINION BECOMES FINAL.

¶ 26 WATT, C.J., and HODGES, HARGRAVE, KAUGER, SUMMERS, BOUDREAU and WINCHESTER, JJ„ concur.

¶ 27 OP ALA, V.C.J.,

concurring in part; dissenting in part. I concur in declaring respondent subject to discipline; I dissent from the mild discipline imposed.

      . We cite to the current Rules Governing Disciplinary Proceedings (RGDP) (5 O.S.2001, Ch. 1, App. 1-A, as amended) and Oklahoma Rules of Professional Conduct (ORPC) (5 O.S.2001, Ch. 1, App. 3-A, as amended). No amendments to pertinent Rules have occurred since the relevant time period covering the conduct of respondent, Michael C. Taylor.

      . Rule 6.16, RGDP provides that where discipline is imposed, the costs of the investigation, record and disciplinary proceedings shall be surcharged against the disciplined lawyer, unless remitted for good cause by this Court. No good cause for remission has been shown.

      . The parties’ written joint stipulations was also an exhibit admitted at the Professional Responsibility Tribunal trial panel (PRT) hearing, as were the complaint and respondent's answer.

      . The facts recited are shown by clear and convincing evidence, considering the parties' joint stipulations and the evidence in the record.

      . Although respondent is not charged with its violation we set forth Rule 1.15(a), ORPC, which is as follows:
      a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the written consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

      . The joint stipulations also agree respondent violated Rule 8.4(a), ORPC and Rule 1.3, RGDP, and the PRT found violation of said Rules. The latter provides:
      The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.
      Rule 8.4(a), ORPC provides: "[i]t is professional misconduct for a lawyer to ... violate or attempt to violate the [ORPC], knowingly assist or induce another to do so, or do so through the acts of another[.]” The charging of violation of these two Rules, stipulation he violated them and the PRT’s finding of violation, in our view, involves no transgression additional to his conduct viola-tive of Rule 1.15(b)-(c), ORPC. No need exists to further discuss Rules 8.4(a), ORPC or 1.3, RGDP.

      .A January 10, 2000 letter to respondent from a law firm representing a second hospital, Baylor University Medical Center (BUMC), was an exhibit admitted at the PRT hearing. The letter asserts BUMC also had a lien running in its favor. The parties’ joint stipulations do not mention the letter and its significance is not adequately explained (though mentioned) at the PRT hearing. The record is not clear as to 1) whether BUMC actually had a properly filed lien under Texas statutory law or 2) whether, if it did, respondent was aware of the lien in late November-early December 1999. The record is clear, however, that respondent knew BUMC had an outstanding medical bill in the Jamie Herdt matter at said time, a bill the record indicates was close to $14,000.

      . Geico Insurance Company’s attorney — aware of the United Regional Health Care System (URHCS) lien — required that the lien amount check be paid either by separate draft to URHCS or a draft including URHCS as a co-payee.

      . At such time, of course, respondent had already paid himself and Anderson all of the attorney fees they had agreed were due except for about $420 which, in essence, he for some reason believed he was entitled to from the check he was holding on which URHCS was a co-payee even though there was money remaining from the UM proceeds to cover this additional amount of attorney fees.

      . The settlement proceeds involved in Bashara v. Baptist Memorial Hospital System, 685 S.W.2d 307 (Tex.1985) seem to have come only from the tortfeasor's liability carrier, rather than part from liability insurance and part from underin-sured/uninsured (UM) insurance. However, in the present matter because respondent, Herdt and Anderson had agreed that Anderson and respondent would equally share a forty (40%) fee on the gross settlement proceeds received, i.e., $70,000, this gross amount was sufficient to pay the attorney fees ($28,000 = 40% of $70,000) and the liability check for the amount of URHCS's lien ($12,417.81) would still have been available for the full amount of the lien. There appears to have been no reason for respondent to take the position or attempt to convince URHCS that he was entitled to attorney fees out of the check in the amount of the lien. As we view the record he did so, in large part, because he really did not know what Texas law was on the subject.

      .Under Texas law insurance proceeds from UM coverage are not subject to a statutory hospital lien. Members Mutual Insurance Company v.

        Hermann Hospital, 664 S.W.2d 325 (Tex.1984). We need not deeply delve into Oklahoma law on the subject, but note that in Kratz v. Kratz, 1995 OK 63, 905 P.2d 753, this Court held that under our hospital lien statute such a lien could not be enforced against UM benefits paid by the patient’s own insurer. Further, there may be many and varied situations where an attorney and his client voluntarily agree with medical providers that the latter will be paid from settlement recovery proceeds. See e.g. The Florida Bar v. Silver, 788 So.2d 958 (Fla.2001)(attorney, with client’s consent, may send letters of protection to one or more medical providers, i.e., agree to pay them from settlement proceeds). The attorney and client may so agree with one or more medical providers to forestall collection efforts against the client or to insure the client continues to receive medical treatment from a provider, or for other valid reason. See White, The Dishonored Medical Lien: A New Trend in Bar Complaints, 25 Ariz.Att’y 17, 18 (June 1989). It does not take much imagination to recognize that such an agreement might be structured in a way to include UM proceeds. The record in this matter does not show by clear and convincing evidence that such an agreement including UM proceeds existed nor does the Oklahoma Bar Association (OBA) so allege.

      . Respondent’s testimony at the PRT hearing seems to indicate that before disbursal of any funds he had obtained some knowledge of Texas law as to the propriety of paying his and Anderson’s attorney fees. His testimony also indicates he had a generalized view that an attorney's lien was superior to any purported claim to personal injury settlement proceeds of a medical provider that had rendered treatment to the personal injury victim. Notwithstanding such testimony, as we view the overall record, when respondent disbursed the funds as he did he was unsure of the proper course for distribution under Texas law, including distribution of the funds for his and Anderson’s attorney fees.

      . When the settlement proceeds were received in 1999, the lawsuit mentioned in the text was pending in the district court of Wichita County, Texas.

      . State ex. rel. Oklahoma Bar Ass'n v. Taylor (Taylor I), 2000 OK 35, 4 P.3d 1242, involved three checks received by respondent's office from an insurance company that had a doctor listed as a co-payee on each check, along with the client and respondent. Id.., 2000 OK 35, ¶ 8, 4 P.3d at 1248. It was plain in Taylor I that the doctor had an interest in the proceeds received, yet respondent failed to notify the doctor about receipt of the settlement checks for about two months and the matter involved an unauthorized endorsement of the doctor's signature on the checks by respondent's office. The case also involved respondent's tardiness in the disciplinary process; misleading a bar investigator; reducing, without explanation and justification, the amount the physician claimed to be due; misrepresentation by his office concerning disposition of one or more checks on which the doctor was a co-payee; and commingling funds to which the doctor — a third party — claimed an interest. Id., 2000 OK 35, V 34, 4 P.3d at 1255.

      . Although the parties seem not to have noticed it — as they do not mention it in their joint brief-in-chief and waiver of further briefs filed with this Court — the PRT did not adopt the paragraph of the joint stipulations (¶ 38) that includes the parties’ agreement that respondent’s conduct violated Rule 8.4(c), ORPC. In other words, as we read the PRT’s report, although the PRT found violations concerning Rule 1.15(b)-(c), ORPC, the PRT did not find respondent guilty of dishonest, fraudulent or deceitful conduct in relation to his handling of the settlement funds or his interaction with the medical providers, including URHCS. The failure of the PRT to adopt ¶ 38 of the joint stipulations is without explanation in that body’s written report to this Court.

      . The factual scenario in Arizona Ethics Opinion 88-06 (1988) involved an employer's workmen's compensation carrier asserting it had a lien, to the extent of benefits it had paid to the attorney’s client, on settlement proceeds received from the client’s co-employee’s liability insurance carrier.

      . We need not definitely decide here the appropriate disposition of the funds respondent received to gauge whether or not he violated Rule 1.15(b)-(c), ORPC. It is enough to know that he was aware one or more of the medical providers were claiming an interest in the settlement proceeds and unaware of the proper disposition of the proceeds under Texas law when he distributed the funds.

      . In fact, in the present case respondent had agreed with Geico’s attorney he would seek court intervention with respect to the liability proceeds he had received should an informal resolution not be reached with each and every medical provider.

      . Rule 6.16, RGDP provides that failure of a disciplined lawyer to pay said costs within ninety (90) days after the effective date of an order imposing discipline “shall result in automatic suspension from the practice of law until further order of [this] Court.”


source: Caselaw Access Project

author:
/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge /s/ Steve Lile STEVE LILE, Vice Presiding Judge (concurring) /s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge (concurs in results)
      CHAPEL, J., LILE, Vice Presiding Judge, LUMPKIN, Judge:

license: Public Domain

text:
    2003 OK CR 11
    Robert Wayne LAMBERT, Appellant, v. STATE of Oklahoma, Appellee.
    No. PCD-2002-974.
    Court of Criminal Appeals of Oklahoma.
    May 29, 2003.
   ORDER GRANTING POST-CONVICTION RELIEF AND REMANDING TO THE DISTRICT COURT OF CREEK COUNTY FOR A JURY DETERMINATION ON THE ISSUE OF MENTAL RETARDATION

¶ 1 Robert Wayne Lambert was tried by jury, convicted of two counts of first degree murder, and received two sentences of death. This Court affirmed Lambert’s convictions for murder, and the United States Supreme Court denied certiorari. This Court affirmed the denial of Lambert’s first Application for Post-Conviction Relief. Lambert’s application for federal habeas corpus relief is pending in the United States District Court for the Northern District of Oklahoma. On October 31, 2002, Lambert filed a Successor Application for Post-Conviction Relief in a Death Penalty Case, and a Request for Evi-dentiary Hearing on the issues of mental retardation and second-stage jury instructions. This Court remanded Lambert’s case for an evidentiary hearing on the issue of mental retardation on November 15, 2002. On December 13, 2002, we held the evidentia-ry hearing in abeyance and directed the State to respond to Lambert’s Successor Application. The State’s response was filed March 10, 2003.

¶ 2 Lambert’s Atkins claim of mental retardation must be resolved pursuant to the definition of mental retardation as set forth in Murphy v. State. For capital purposes, a mentally retarded person is one with significantly limited ability to intellectually and adaptively function in enumerated areas, who has at least one IQ test score of 70 or below, and in whom the retardation manifested itself before age 18. Lambert has raised sufficient evidence to create a question of fact on the issue of mental retardation. In accordance with Murphy, we remand this case for a jury determination on the question of mental retardation.

¶ 3 The proceeding on remand is solely devoted to the question of Lambert’s mental retardation. Both parties may call witnesses and present evidence bearing on mental retardation. Lambert’s criminal conviction and death sentence are not relevant to this issue. The jury should not hear evidence of the crimes for which Lambert was convicted, unless particular facts of the case are relevant to the issue of mental retardation. Any such evidence should be narrowly confined to that issue. The jury should not hear evidence in aggravation or mitigation of the murders for which Lambert was convicted, or any victim impact evidence. The only issue is whether Lambert meets the Murphy definition for mental retardation. The jury shall be convened to discover whether Lambert can show it is more likely than not that he is mentally retarded.

¶ 4 As the Legislature has not addressed procedures for post-conviction determination of mental retardation on remand, we set forth procedures to be used in these proceedings. The hearing shall be conducted after complete discovery is afforded both parties under the Oklahoma Criminal Discovery Code. The District Court shall empanel a jury of twelve persons, granting each party nine peremptory challenges. As Lambert has the burden of proof, he shall open his case first, present evidence first, and have the opportunity to present the first and last closing arguments. Each party may have Lambert examined by an expert, and may present that expert testimony in support of the claim that Lambert is or is not mentally retarded by a preponderance of the evidence. The jury shall be instructed using a modified version of the jury instruction provided in Murphy. If the jury finds Lambert has shown he is mentally retarded by a preponderance of the evidence, it shall indicate that finding on a verdict form.

¶ 5 The jury’s finding will determine the validity of Lambert’s capital sentence. If jurors determine Lambert is not mentally retarded, his death sentence will stand. If jurors determine Lambert' is mentally retarded, the death sentence cannot stand. The trial court will resentence Lambert to life imprisonment without parole. If there is no unanimous verdict either finding or rejecting mental retardation, the trial court will resentence Lambert to life imprisonment without parole. This is in keeping with the low burden of proof; on a question of this constitutional magnitude, if jurors cannot agree on whether it is more likely than not that Lambert is retarded, Lambert will receive the benefit of that doubt. After the conclusion of the jury proceeding, if the trial court determines that the jury’s factual determination was imposed under the influence of passion, prejudice, or any other arbitrary factor, and the trial court finds that, despite an improperly influenced jury determination otherwise, Lambert has shown he was mentally retarded by a preponderance of the evidence, the trial court shall include that conclusion in the findings of fact and conclusions of law to be filed with this Court.

¶ 6 The case is REMANDED to the District Court of Creek County for a jury hearing on the issue of mental retardation, in accordance with the procedures set forth in this Order. The hearing shall be held within one hundred twenty (120) days of this Order. The trial court shall file findings of fact and conclusions of law, including the jury’s determination and any sentencing disposition, in this Court forty-five (45) days from the conclusion of the jury proceeding.

¶ 7 IT IS SO ORDERED.

¶ 8 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 29th day of May, 2003.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lile STEVE LILE, Vice Presiding Judge (concurring)

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge (concurs in results)

CHAPEL, J.,

concurring.

¶ 1 I agree with the Court’s resolution of this ease and the procedures to be used in the proceeding below in all respects, except one. I disagree with requiring the trial court to sentence Lambert to life without parole if he is found to be mentally retarded. I believe this violates Lambert’s rights to due process and equal protection of the law. If Lambert is mentally retarded and ineligible for execution, he should be sentenced according to the law governing non-capital first degree murder cases, which provides that he may receive either life imprisonment or life without parole. Oklahoma law provides that, on a remand for resentencing, a non-capital defendant has the right to request a jury for the new sentencing proceeding. I do not believe this Court can lawfully take away a defendant’s right to jury sentencing on remand.

LILE, Vice Presiding Judge,

concurring.

¶ 1 I agree with the Court’s resolution of this case and the procedures to be used; however, I would base one of those procedures upon statutory precedent. Title 21 O.S.2001, § 701.11, provides that if a jury cannot agree on punishment the jury shall be dismissed and the death sentence is not available. In accordance with this statutory scheme, a jury that cannot agree on the defendant’s status concerning mental retardation should be dismissed and the death sentence excluded as a possible punishment.

LUMPKIN, Judge:

concur in results.

¶ 1 I join Judge Chapel’s separate vote concurring in the remand of this case to the District Court of Creek County for a trial to determine if the Appellant is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and Murphy v. State, 2002 OK CR 32, 54 P.3d 556. I agree with Judge Chapel that the State of Oklahoma has granted certain process which is due a criminal defendant when vacation of a sentence requires a remand for resentencing pursuant to 22 O.S. 2001, § 929 or 21 O.S.2001, § 701.10a. I do not find either of these statutory provisions to be in conflict with 22 O.S.2001, § 1066, which grants this Court the authority to “reverse, affirm or modify the judgment or sentence appealed from and may, if necessary or proper, to order a new trial or resentencing.” However, the Court’s predetermination in this case that “if the jurors determine Lambert is mentally retarded, ... the trial court will resentence Lambert to life imprisonment without parole” disregards these statutory rights and the status of the case at the present time.

¶2 This Court currently has jurisdiction of this case in a pending subsequent application for post-conviction relief. This Court is remanding the case to the district court while that appeal is pending for the limited purpose of holding a trial to determine if Appellant is mentally retarded. Because the subsequent post-conviction application is pending in this Court and the remand is for determining if Appellant is mentally retarded, the district court is without jurisdiction to resentence Appellant until and unless, after the trial on mental retardation, this Court in its decision on the pending appeal orders the case remanded for resentencing pursuant to either 22 O.S.2001, § 929 or 21 O.S.2001, § 701.10a. However, upon review of the record and verdict from the trial on mental retardation, this Court would be empowered pursuant to 22 O.S.2001, § 1066, to either modify the sentence or remand for re-sentencing in the district court.

¶ 3 While the Court’s direction in this order is the model of efficiency in directing the district court to sentence Appellant to life imprisonment without parole if the trier of fact finds him to be mentally retarded, it denies the Appellant certain statutory rights. Granted, if the Appellant were remanded for a resentencing trial he would not be able to put on mitigating evidence and the State would not be able to present aggravating evidence if a jury trial were demanded. However, if the Appellant elected to be re-sentenced by a judge, he would have the opportunity to put on mitigating evidence. See Malone v. State, 2002 OK CR 34, 58 P.3d 208, 209; Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 422; McCormick v. State, 1993 OK CR 6, 845 P.2d 896, 902-3. Those are rights granted by statute if the district court is going to be the resentencing venue on remand. Before the district court is empowered to act, this Court must first decide after review of that trial record, pursuant to 22 O.S.2001 1066, whether to reverse, affirm or modify the judgment or sentence and whether to remand to the district court for resen-tencing. Therefore, I cannot agree with the extralegal directive of the order for the district court to resentence the Appellant to life imprisonment without parole if he is found to be mentally retarded.

      . Lambert v.State, 1999 OK CR 17, 984 P.2d 221, cert. denied, 528 U.S. 1087, 120 S.Ct. 816, 145 L.Ed.2d 687 (2000).

      . Lambert v. State, No. PCD-1998-739 (Okl.Cr. February 10, 2000) (not for publication).

      . Lambert v. Mullin, No. 00-CV-0313 K (N.Dist.Okl.)

      . Lambert v. State, No. PCD-2002-794 (Okl.Cr. November 15, 2002) (not for publication).

      . Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding it is unconstitutional to execute mentally retarded persons).

      .2002 OK CR 32, 54 P.3d 556.

      . Murphy, 54 P.3d at 567-68.

      . 22 O.S.2001, § 1089(D)(5).

      . If evidence bearing on mental retardation is available by transcript which was properly admitted in a previous proceeding, evidence of mental retardation may be presented by that transcript. See 21 O.S.2001, § 701.10a (4) (authorizing use of previously admitted evidence in capital resentencing trial).

      . 22 O.S.2001, § 2001 et seq.

      . Lambert has already been convicted of first degree murder, and the determination of mental retardation is not a finding of guilt or innocence. However, to ensure due process and simplicity of procedure, the capital defendant seeking a determination of mental retardation will be afforded the same protections he is given by statute on a charge of first degree murder. Okla. Const, art. II, § 19; 22 O.S.2001, § 655. Provided, however, that since there is no capital issue in the proceedings on remand, the jury shall not be death qualified in the mental retardation trial.

      . The Legislature has provided that the party with the burden of proof in a criminal case shall open, present evidence, and close in this order. 22 O.S.2001, § 831.

      . 54 P.3d at 570, "Appendix A”. Under these circumstances, where jurors are not asked to sentence Lambert but solely to determine the issue of mental retardation, the trial court should start the instruction with Paragraph 2, beginning "You are advised that a person is 'mentally retarded’. ...” In the fourth paragraph, beginning "If you find ...”, only the first and third sentences should be given, omitting the sentences concerning punishment. The fifth paragraph, defining preponderance of the evidence, should be read in its entirety.

      . This finding does not violate Oklahoma’s constitutional prohibition against special verdicts. Okla. Const, art. 7, § 15. A jury finding on the issue of mental retardation is not a verdict, which goes to a determination of the guilt or innocence of the accused. Romano v. State, 1993 OK CR 8, 847 P.2d 368, 385, aff'd, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); 22 O.S.2001, § 914.

      . Murphy, 54 P.3d at 569.

      . 22 O.S.2001, § 1089(D)(6).

      . U.S. Const., Amend. V, XIV; Okla. Const. Art. 2, § 7.

      . 21 O.S.2001, § 701.9. No evidence in aggravation or mitigation, or victim impact evidence should be considered. Malone v. State, 2002 OK CR 34, 58 P.3d 208, 210; Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 422; 22 O.S.2001, § 984.1.

      .22 O.S.2001, § 929(B)(2)(resentencing in non-capital cases). A capital defendant also has the right to jury resentencing proceeding on remand. 21 O.S.2001, § 701.10a.


author: RONALD J. STUBBLEFIELD, Judge:

text:
    2003 OK CIV APP 47
    Jim BROWN, Plaintiff/Appellee, v. George CURTIS and George Curtis, Jr., Defendants/Appellants, and George Cheek and Jay Belt, Defendants.
    No. 97,727.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 11, 2003.
    Rehearing Denied April 18, 2003.

      Leslie C. Weeks, Jeffrey A. Glendening, Rodolf & Todd, Tulsa, OK, for Plaintiff/Ap-pellee.
    James C. Milton, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, OK, for Defendants/Appellants.
   RONALD J. STUBBLEFIELD, Judge:

¶ 1 Defendants, George Curtis and George Curtis, Jr. (the Curtises), appeal from orders of the Trial Court denying their request for a discovery-related attorney fee award/sanction against Plaintiff, Jim Brown (Brown), and denying their motion to strike certain evidence. Based on review of the record on appeal and applicable law, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 Brown originally brought the action for breach of contract against the Curtises and additional defendants, George Cheek and Jay Belt, alleging that all of the defendants had breached indemnity and debt-assumption provisions contained in a stock sale agreement whereby Brown sold them shares of common stock in Anadarko Nursing Center, Inc.

¶ 3 The Curtises filed a request for production of documents by Brown, and later an interrogatory, both of which went unanswered by Brown for a considerable period of time. The Curtises filed a motion seeking dismissal of Brown’s claim for failure to prosecute or, in the alternative, an order by the Trial Court compelling Brown to comply with discovery requests. There was a considerable delay before Brown responded, but when he finally responded, he claimed the alleged insufficiencies and delays did not warrant dismissal. He further claimed that at the time his response was due, it was contemplated that another, related lawsuit in federal court would resolve all claims between Brown and the Curtises — “that the federal action would have essentially subsumed this lawsuit and obviated the need for duplicative discovery.” Brown also argued that the interrogatory requested information which was confidential, irrelevant and not calculated to lead to discovery of admissible evidence.

¶ 4 A hearing was held on the Curtises’ motion, but the hearing was not transcribed. What occurred as part of the healing is vital to this case.

¶ 5 The Trial Court made certain rulings from the bench. It overruled the Curtises’ motion to dismiss, but sustained their motion to compel, ordering Brown to respond to the discovery requests and produce documents supporting his claims. The parties still disagreed as to some issues involving the discovery requests, and the Trial Court directed counsel to confer on these issues and report back regarding their resolution. The parties apparently reached some agreement that would involve entry of a protective order, allowing Brown to limit his response to the interrogatory and to redact portions of produced documents which might contain personal financial information. The parties reported this to the Trial Court, and the Court excused the parties.

¶ 6 In his appellate answer brief, Brown states that when the parties conferred at the direction of the Trial Court (he refers to this as a “discovery conference”), among the multiple issues they discussed was the Curtises’ inability to pay any judgment that might be entered against them, and their intention to file bankruptcy within ten days after the entry of any judgment. Counsel for Brown indicated he would discuss the Curtises’ financial condition with his client and discern Brown’s intentions relative to continued prosecution of his claims. The Curtises do not dispute this account of events in their appellate briefs.

¶ 7 Counsel for Brown subsequently requested, and later received from counsel for the Curtises, written confirmation dated March 12, 2002, of their intent to file bankruptcy if Brown prevailed in the action. The letter characterized Brown’s prosecution of his state court claims as an “exercise in futility.” The letter was prefaced: “This is a communication made as part of negotiations to compromise a disputed obligation, and is thereby inadmissible pursuant to [12 O.S. 2001 § 2408].”

¶ 8 On March 8, 2002, the Curtises filed an application, under 12 O.S.2001 § 3237(A)(4), for the award of attorney fees and costs incurred in connection with their motion to compel. They sought $1,988 in attorney fees and costs in the amount of $69.15.

¶ 9 On March 28, 2002, the date his discovery responses were due, Brown filed a “Partial Dismissal Without Prejudice,” dismissing the Curtises from the action. Defendants Cheek and Belt remained parties to the lawsuit. The Curtises, through their counsel, stipulated that a pending motion to settle journal entry was rendered moot by Brown’s dismissal. However, they continued to press their motion for attorney fees and costs, claiming that the Trial Court retained jurisdiction to consider the application.

¶ 10 The Trial Court ordered further briefing on the issue of continuing jurisdiction. In his brief concerning the effect of his dismissal without prejudice, Brown claimed there was nothing “sinister” about his dismissal of the Curtises from the lawsuit, attaching a copy of the “bankruptcy” letter written by the Curtises’ counsel, to show their stated intent to file bankruptcy.

¶ 11 The Curtises also briefed the issue of jurisdiction, but a significant portion of their brief assailed Brown’s filing of the “bankruptcy” letter, calling it impertinent, inadmissible and “the most egregious disclosure of settlement discussions.” They requested that all references to the letter in Brown’s brief be stricken, that the brief be placed under seal, and that a monetary sanction be imposed against Brown’s counsel for such unacceptable conduct.

¶ 12 The Trial Court denied the Curtises’ application for fees/costs, based on these findings: (1) It had granted the Curtises’ motion to compel, but Brown had dismissed his case against them prior to expiration of the time to respond; (2) It retained jurisdiction to assess fees for misconduct or violation of orders prior to dismissal; but, (3) The conduct of Brown was “not so shocking, neglectful or disregard [sic] that this Court should assess fees in this case.”

¶ 13 The Curtises then filed a “Motion to Strike and for Protective Order Removing Material from the Public Record,” asserting that the order denying fees did not address their request for protection of “confidential settlement communications.” They claimed that allowing the information regarding their financial condition to stay in the record would cause them embarrassment and undue hardship. Brown defended his use of the document, claiming his purpose in discussing the Curtises’ financial situation as the basis for his dismissal was to rebut and respond to representations made by their counsel at the earlier hearing — that his dismissal was actually motivated by fears concerning discovery.

¶ 14 In its order filed July 9, 2002, the Trial Court found that the offending “bankruptcy” letter was properly filed by Brown to inform the Court as to why he dismissed his case and contained information relevant to the issue of fees and costs. The Trial Court denied the Curtises’ motion to strike the material, but did sustain their motion for protective order, based on a finding that it was not necessary for the material “to be available to the general public.” The Trial Court ordered that the material objected to “should be sealed in the file.”

¶ 15 The Curtises first appealed from the order denying their attorney fees and costs. They subsequently filed an amended petition in error to add an appeal from the order denying their motion to strike.

A JURISDICTIONAL MATTER

¶ 16 Brown has filed a motion to dismiss this appeal, citing 12 O.S.2001 § 994(A). He argues that this case does not involve an interlocutory order appealable by right, and that there is no final, appealable order in the ease because two of the named defendants, Cheek and Belt, remain parties in the lower court. Brown cites the recent case, Conterez v. O’Donnell, 2002 OK 67, 58 P.3d 759, as controlling authority. While the Conterez case does hold that, generally, the denial of sanctions under 12 O.S.2001 § 3230(E)(1) is not at once appealable, we do not find the case applicable to the facts herein.

¶ 17 The plaintiff in Conterez had brought a medical malpractice action against two defendants. A discovery dispute arose when the plaintiff deposed a pathologist, who was not a party in the case. The plaintiff moved for sanctions, under 12 O.S.2001 § 3230(E)(1), against counsel for the non-party physician/ witness, based on that attorney’s instructions to his client not to answer certain questions at the deposition, and his adjournment of the deposition hearing. The trial court denied the plaintiffs request for sanctions by order entered April 25, 2000. Nearly eight months after the denial of sanctions, the parties to the lawsuit settled, and the case was voluntarily dismissed by agreed order. Id. at ¶¶ 2-3, 58 P.3d at 760.

¶ 18 The plaintiff in Conterez filed an appeal from the trial court order denying sanctions. Division IV of this Court dismissed the appeal sua sponte, on grounds that (1) the appeal time had expired thirty days after entry of the April 25 order, and (2) the plaintiff lost standing as an aggrieved party to claim harm from the denial because his interest in enforcing sanctions was extinguished by his settlement of the principal tort claim. Id. at ¶4, 58 P.3d at 760. On certiorari the Oklahoma Supreme Court vacated the opinion of Division IV but also ordered the appeal dismissed. Id. at ¶ 5, 58 P.3d at 760.

¶ 19 Citing federal jurisprudence, the Supreme Court stated that the denial of discovery-related sanctions is generally not considered final until the district court litigation comes to an end. “This is so because the trial court is not bound by, and may hence reconsider, all of its mid-litigation rulings at any time before the case comes to an end.” Id. at ¶ 7, 58 P.3d at 761-62. The Court also found that the order from which the appeal was sought failed to meet the “two-prong finality test for appealability of prejudgment orders under the provisions of 12 O.S.2001 § 953.” Id. at ¶ 8, 58 P.3d at 762 (footnotes omitted). The Court stated: “The order refusing to sanction the witness’ lawyer neither conclusively settles the nonsanctionability of the lawyer’s actions nor does the ruling’s effect leave the aggrieved party plaintiff without any further relief at nisi prius.” Id. (footnote omitted). However, because the plaintiff had settled the ease, and the final agreed order of dismissal was not a reviewable order, no corrective relief could be sought from the “inchoately reviewable” order denying sanctions for want of an appealable disposition in the case. Id. at ¶¶ 11-12, 58 P.3d at 762-63.

¶ 20 The procedural posture of this case is markedly different from that in Conterez. After the dismissal of the Curtises by Brown, the Trial Court retained limited jurisdiction to consider the Curtises’ motion for attorney fees, which was addressed to Brown’s pre-dismissal discovery-related conduct. See Bentley v. Hickory Coal Corp., 1992 OK CIV APP 68, 849 P.2d 417. The order the Trial Court entered is a final disposition of the Curtises’ claimed right to attorney fees and is not subject to reconsideration in the dismissed case against the Curtises.

¶ 21 Unlike the order in Conterez, the order in this case does satisfy the “two-prong finality test.” It (1) conclusively determines the disputed question that was before the Trial Court, and (2) leaves the Curtises without any relief at the trial court level because they are precluded from proceeding further in the case. Hammonds v. Osteopathic Hosp. Founders Ass’n, 1996 OK 54, ¶ 3, 917 P.2d 6, 7. The order denying fees and the collateral order denying the Curtises’ motion to strike constitute “an end-of-the-line disposition” of the only remaining issues below affecting these parties and, thus, are appealable as final under 12 O.S.2001 § 953. Hammonds, 1996 OK 54 at ¶ 4, 917 P.2d at 7. And, unlike the order in Conterez, the appealability of both orders stands preserved and has not been “mooted” by conduct of the Curtises. Finally, the only parties remaining in the case are not aligned with the Curtises, and if the Curtises cannot now appeal, they are left at the mercy of those other remaining parties who might destroy any right the Curtises have for appellate review, if they reach a disposition of the lawsuit which is not appeal-able.

¶22 In view of the particular circumstances of this case, we find the order denying the Curtises’ application for attorney fees and costs under section 3237(A) to be final and appealable under section 953. Accordingly, we deny Brown’s motion to dismiss the Curtises’ appeal.

STANDARD OF REVIEW

¶ 23 A trial court’s ruling on a request for sanctions will not be disturbed absent a demonstrated abuse of discretion. Payne v. DeWitt, 1999 OK 93, ¶ 18, 995 P.2d 1088, 1096. See also State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234; Meadows v. Wal-Mart Stores, Inc., 2001 OK 25, 21 P.3d 48. To reverse for abuse of discretion, this Court must determine that “the trial judge made a clearly erroneous conclusion and judgment, against reason and evidence.” Moshe Tal at ¶ 3, 61 P.3d at 240. The appellate court “abides the presumption the lower court decision on the sanction question is legally correct and cannot be disturbed unless contrary to the weight of the evidence or to a governing principle of law.” Id. “If legally correct, the trial judge’s decision may not be reversed because of faulty reasoning, an erroneous finding of fact, or the consideration of an immaterial issue.” Id.

¶ 24 When a trial court grants a motion for an order compelling discovery, section 3237(A)(4) authorizes it to also grant to the moving party the reasonable expenses, including attorney fees, incurred in obtaining the order. Indeed, the section requires that such expenses be awarded to the prevailing party, “unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis added.)

DISCUSSION OF ISSUES

¶ 25 On appeal, the Curtises assert that the Trial Court retained jurisdiction to assess fees against Brown, and erred in refusing to award them the requested sanction. They claim that the Trial Court committed error in (1) basing its decision on an erroneous standard; (2) not ruling that their application was deemed confessed by Brown; and, (3) in applying an incorrect standard in consideration of their application and considering inadmissible and irrelevant information.

I. Retained Jurisdiction After Voluntary Dismissal

¶ 26 The lower court actually ruled that it did retain jurisdiction over the attorney fee application after Brown’s dismissal. Retention of jurisdiction is only an issue because Brown, in his answer brief, asserts that the effect of his dismissal was to deprive the Trial Court of jurisdiction over the subject matter and the parties. He claims it was error for the Trial Court to even consider the Curtises’ attorney fee application. He claims that the rationale of Bentley v. Hickory Coal Corporation, 1992 OK CIV APP 68, 849 P.2d 417, relied on by the Curtises and the Trial Court, is inapposite. According to Brown, the analysis in Bentley applies only to sanctions awarded under section 3237(B) for failure to comply with a discovery order, and no such order was entered. He distinguishes a quest for attorney fees under section 3237(A) from a quest for sanctions under subsection B.

¶ 27 We are not persuaded by Brown’s argument. Section 3237 is entitled “Failure to Make or Cooperate in Discovery; Sanctions.” Like its federal counterpart— Fed. R. Civ. P. 37(a)(4), 28 U.S.C.A. (1992) —the purpose of section 3237(A)(4) is to address abusive discovery practices and deter abusive resort to the judiciary. The Advisory Committee Notes on Rule 37(a)(4), addressing the provision for award of expenses of a motion to compel, state that “the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.” (Emphasis added.)

¶ 28 We agree with the Court’s conclusion in Bentley that trial court jurisdiction to impose discovery sanctions, like the jurisdiction to impose sanctions under 12 O.S.2001 § 2011, survives a voluntary dismissal. We find no basis for the assertion that the provision for a conduct-based award of expenses under subsection 3237(A)(4) should be treated differently from an award of expenses under the provisions of subsection (B).

II. Effect of Rule 4(e)

¶29 The Curtises assert that under Oklahoma District Court Rule 4(e), 12 O.S. 2001, ch. 2, app., they were “automatically” entitled to an award of attorney fees upon Brown’s failure to timely respond to their application. We disagree.

¶ 30 Case law interpreting the version of Rule 4(e) in effect at the time of the Curtises’ application states that, despite the mandatory “shall be deemed confessed” language of the rule, trial courts retain some discretion to review motions to ensure that the requested relief is not granted in violation of the law. Westlake Presbyterian Church, Inc. v. Cornforth, 1996 OK CIV APP 159, ¶ 6, 940 P.2d 1208, 1210. Furthermore, an award of attorney fees must be supported by law and fact. See Liberty Bank & Trust Co. of Tulsa, N.A. v. Murray, 1996 OK CIV APP 39, ¶¶ 6-8, 924 P.2d 781, 783. The Oklahoma Supreme Court has stated that an award of attorney fees under section 3237— like any other attorney fee award—“must be set upon and supported by evidence presented in an adversary proceeding in which the facts and computation upon which the trial court rests its determination are set forth in the record with a high degree of specificity.” Payne, 1999 OK 93 at ¶ 18, 995 P.2d at 1096 (footnotes omitted). Accordingly, we conclude that the Trial Court did have discretion in the matter, and was correct in not granting a default award under Rule 4(e).

III. Abuse of Discretion By the Trial Court/Standard Applied/Inadmissable and Irrelevant Evidence

¶ 31 The Curtises argue that the “statutory structure” of section 3237(A)(4) placed the burden on Brown to show that his opposition to the motion to compel was “substantially justified,” and that he failed to make this showing because he did not timely file a response to their application for attorney fees. According to the Curtises, the Trial Court relieved Brown of his burden and erroneously applied a standard which shifted to them the burden of showing that Brown’s conduct constituted abusive discovery practice. In a proposition in their reply brief, they claim this was an error of such magnitude that the order should be reversed “on this basis alone.” In making this argument, they focus on the Trial Court’s finding that Brown’s conduct was not so “shocking, neglectful or disregard [sic] that this Court should assess fees in this case.”

¶ 32 Referring again to the federal rules for assistance, we note that the test of substantial justification is not defined in the comments to Rule 37(a)(4). However, the Advisory Committee’s Notes specifically point out that the rule is in no way intended to narrow the trial court’s discretion. In any event, the Curtises’ argument overlooks the fact that, under both the federal rules and the Oklahoma statute, a trial court need not award expenses of a motion to compel where it finds such an award unjust. And, if a motion to compel is granted in part and denied in part, a trial court may apportion the expenses incurred in relation to the motion in a “just manner.” Section 3237(A)(4).

¶33 As previously noted, the record on appeal lacks transcripts of the hearings before the Trial Court on the Curtises’ motion to compel and the subsequent hearing on their application for attorney fees. Although the appellate briefs reveal some agreement between the parties as to what transpired at these hearings, significant areas of dispute remain.

¶ 34 For example, there remains a substantial dispute as to the tenor of the Trial Court’s inquiries to counsel at the hearing on the motion to compel. In his answer brief, Brown claims that the Trial Court directed most of its inquiry to the Curtises’ counsel, questioning the relevance and ultimate admissibility of most of the requested documents and the sole interrogatory. The Cur-tises’ reply is to accuse Brown of engaging “in an eleventh-hour effort to put a favorable spin on his objections to [their] discovery requests.”

¶ 35 There is no contemporaneous written memorialization of the outcome of the motion to compel. There is only a recitation in the Trial Court’s subsequent order denying attorney fees that “the Court granted Defendants’ Motion to Compel.” However, the record reveals that the Curtises were not the clear “winner.” The Curtises’ proposed order and motion to settle journal entry (rendered moot by the dismissal) reveal that the order for Brown to respond was subject to certain restrictions. The scope of the requested discovery from Brown was to be limited by a protective order — something even the Curtises do not deem inappropriate.

¶ 36 Another area of dispute involves what transpired at the post-dismissal hearing on the Curtises’ application for attorney fees. The Curtises assert that Brown repeatedly brought up the Curtises’ financial condition at the hearing, when it had no bearing on the issue before the Trial Court. On the other hand, Brown claims that he was compelled to advise the Trial Court of the reasons behind his dismissal after the Curtises had first argued to the Trial Court that they were entitled to attorney fees because Brown had resisted the discovery and had dismissed his claim because of concerns over what would have to be produced.

¶ 37 The Trial Court was in the best position to determine whether an award of the requested sanctions was warranted and served the purposes of section 3237(A) or would be unjust under the circumstances. We do not view the choice of words in the order denying attorney fees as conclusively demonstrating that the Trial Court implied an improper standard in reaching its decision.

¶ 38 Furthermore, in making its determination, the Trial Court had discretion to consider the arguments in and attachments to Brown’s supplemental brief on “jurisdiction” as an out-of-time response to the Curtises’ motion for attorney fees. That it did so is reflected by this statement in the Trial Court’s later order on the Curtises’ motion to strike: “That the material sought to be stricken ... was filed in response to Defendants’ Motion to Assess Costs and Attorneys Fees.”

¶ 39 In another proposition in their reply brief, the Curtises claim that the attached letter regarding “confidential financial information” constituted “settlement communications” and was inadmissible and irrelevant to a determination of whether to award fees and costs. They claim (again) that the Trial Court’s order denying their request for fees and costs should be reversed “solely on the basis that the Trial Court incorrectly determined that the inadmissible and irrelevant settlement communication was relevant to the issue of [their] request for fees.”

¶ 40 However, the Curtises have cited no Oklahoma authority that supports this claim of error. Even if we were to assume that the Curtises’ characterization of the letter as “settlement communications” is accurate, the fact that they labeled it inadmissible pursuant to 12 O.S.2001 § 2408 did not render it inadmissible per se. See F.D.I.C. v. Moore, 1995 OK CIV APP 88, 898 P.2d 1329. The letter’s relevancy was a matter addressed to the sound discretion of the Trial Court. See American Nat’l Bank & Trust Co. of Sapulpa v. BIC Corp., 1994 OK CIV APP 70, 880 P.2d 420. Where the letter went to the heart of Brown’s motivation for dismissing his lawsuit against the Curtises, we find no reversible error in the Trial Court’s relevancy determination and its refusal to strike the letter.

SUMMARY AND CONCLUSION

¶41 We find the appealed order to be a final, appealable disposition. After careful review, we find no abuse of discretion on the part of the lower court in declining to award fees/costs, or in the Trial Court’s refusal to strike certain evidence. We further reject contentions in regard to the Trial Court’s application of an improper standard and consideration of inadmissible material. Accordingly, the orders denying the Curtises’ request for attorney fees and costs and denying the motion to strike must be affirmed.

¶ 42 AFFIRMED.

COLBERT, V.C.J., and TAYLOR, P.J., concur.

      . The interrogatory provided: "Identify all persons or entities to whom Plaintiff provided or submitted financial statements, financial disclosures, or affidavits of financial condition prepared by Plaintiff or at his direction regarding Plaintiff's financial condition, during the period from the date of the alleged execution of the contract alleged in Plaintiff's Petition to the date of Plaintiff's response to this Interrogatory.”

      . The stock sale agreement that was the subject of this litigation also had contained a provision requiring that the Curtises, Cheek and Belt assume the current nursing home lease with landlord, OK AN Associates, L.P. of California. On July 26, 2001, OK AN filed a complaint in federal court seeking lease payment arrearage. Brown filed an answer and cross-claim against George Curtis in the federal court action.

      . We cite the federal rule because, whenever Oklahoma Discovery Code provisions closely parallel those in the federal rules, federal jurisprudence is deemed instructive. Payne v. DeWitt, 1999 OK 93, ¶ 8, n. 6, 995 P.2d 1088, 1092, n. 6. The provisions of this federal rule are virtually identical to section 3237(A)(4). The federal rule was amended in 1993 and 2000. 28 U.S.C.A. (West Supp.2002).

      . A recent amendment to Rule 4(e) provides that if briefs in opposition to a motion are not timely filed the motion "may be deemed confessed.” 12 O.S. Supp.2002, ch. 2. app.


author: ADAMS, Presiding Judge:

text:
    2003 OK CIV APP 56
    Tina D. BELCHER, Petitioner, v. T.D. WILLIAMSON, INC. and the Workers’ Compensation Court, Respondents.
    No. 98,156.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 28, 2003.
    Certiorari Denied May 30, 2003.
    Pamela K. Morgan, Jack G. Zurawik. P.C., Tulsa, OK, for Petitioner.
    Steven K. Bunting, Steven K. Bunting, P.L.L.C., Tulsa, OK, for T.D. Williamson, Inc.
   OPINION

ADAMS, Presiding Judge:

¶ 1 Tina Belcher (Claimant) argues the Workers’ Compensation Court erred in entering an order finding her injuries, while sustained in the course of her employment, were “caused by a condition wholly unrelated to her employment” at T.D. Williamson (Employer) and denying her request for temporary total disability benefits and medical treatment. Citing Flanner v. Tulsa Public Schools, 2002 OK 8, 41 P.3d 972, as authority, Claimant argues injuries to her head, neck, right shoulder, low back, cervical spine, right knee and wrists were compensable work-related injuries from a fall on May 22, 2001.

¶2 Employer’s medical expert concluded her fainting episode did not arise out of and in the scope of her employment with Employer. In addition to noting subsequent incidences and events as potential sources of Claimant’s claimed injuries, Employer’s medical expert noted that, at the time of the fall, Claimant had several non-employment related medical conditions and that she was taking multiple medications. Thus, there is competent medical evidence that supports the trial court’s order.

¶ 3 Further, as we must conclude from the analysis in Flanner, the mere fact that a fall may have been caused by a non-work related medical condition does not end our examination regarding compensability. However, applying the law regarding idiopathic falls to this matter, we must conclude the workers’ compensation trial court did not err in denying compensability for injury resulting from Claimant’s fall.

¶ 4 In Flanner, the claimant, a child nutritionist, suffered an epileptic seizure while in the school cafeteria. She fell into a commercial coffee pot and severely burned her arm. The Court found that the injury resulting from the claimant’s idiopathic fall while at work was contributed to by the presence of the hot coffee pot and was thus compensable. No such danger was present here.

¶ 5 Here, Claimant was at a staff meeting, felt she needed to get to a restroom quickly, rose to her feet, turned, fainted, and fell, striking a wall. She returned to work a few days later. Her treating physician’s notes from two days after the May 22, 2001 fall note a history of a fainting episode, but make no references to complaints about any of the body parts Claimant claims were injured in the May 22, 2001 fall and later caused her temporary disability and need for medical treatment or to any work-related cause for her fainting and falling.

¶ 6 Under both a medical causation analysis and an idiopathic fall analysis, the record contains competent evidence supporting the conclusion of the trial court that Claimant’s injuries from the May 22, 2001 fall did not arise out of her employment. The order denying benefits is sustained.

SUSTAINED.

JOPLIN, C.J., and BUETTNER, J., concur.

      . Claimant testified the meeting was at 8:30 a.m. Three witnesses stated the meeting was at lunchtime.