text:
    Timothy A. BULLOCK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 03PDJ037.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Oct. 28, 2003.
    Opinion Issued by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members MELINDA M. HARPER, a representative of the public, and JOHN E. HAYES, a member of the bar.
   OPINION AND ORDER READMITTING TIMOTHY BULLOCK TO THE PRACTICE OF LAW

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On August 29, 2003, a Readmission Hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, John E. Hayes, a member of the bar, and Melinda M. Harper, a representative of the public. Jeffrey S. Pagliuea appeared on behalf of petitioner Timothy A. Bullock ("Bullock") who was also present. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado (the "People").

At the Readmission Hearing, Bullock testified on his own behalf, The Hearing Board considered the Stipulation and Agreement Concerning Petition for Reinstatement After Discipline (the "Stipulation") filed by the parties on August 20, 2008. The Hearing Board considered the argument of counsel, assessed Bullock's credibility, considered his testimony and the Stipulation, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Timothy A. Bullock has taken the oath of admission, was admitted to the Bar of the Supreme Court on May 9, 1991, and was registered under attorney registration number 20877.

By Order dated October 24, 1994, the Supreme Court disbarred Bullock based on a Conditional Admission of Misconduct submitted by the parties agreeing to the sanction of disbarment. Petitioner's disbarment arose from his representation of a client on a pro bono basis during the first year of his having been licensed to practice law.

On June 25, 1992, Bullock's client was found guilty of criminally negligent child abuse, a class 4 felony, and was sentenced to six years in the Colorado Department of Corrections. In post-conviction proceedings, Bullock's prior client was granted a new trial based on ineffective representation at trial. The prior client then accepted a plea bargain, pled guilty to the class 4 felony of eriminally negligent child abuse, and was sentenced to four years in community corrections at the Alpha Center in Denver.

In June 19983, the client escaped from the Alpha Center. Knowing that the client was an escapee and a fugitive from justice, Bullock aided the client in his escape by arranging to supply the client with money. Bullock was subsequently indicted on three counts of aiding an escape, § 18-8-201(5), 8B C.R.S. (1986), a class 3 felony. Under a plea agreement, Bullock pled guilty to, and was convict, ed of, one count of felony aiding an escape, § 18-8-201(5), 8B C.R.S. (1994 Cum.Supp.) and one count of misdemeanor aiding an escape, § 18-8-201(6), a class 1 misdemean- or. Bullock admitted in the Conditional Admission of Misconduct that his conduct violated C.R.C.P. 241.6(5)(any act or omission violating the criminal laws of a state or of the United States constitutes ground for lawyer discipline).

As a result of the convictions, Bullock was sentenced to probation on both the deferred judgment and misdemeanor. He successfully completed the deferred judgment, and the felony conviction was withdrawn and dismissed. Bullock completed one hundred and fifty-six hours of community service. The conviction and disbarment radically changed his life.

More than eight years have passed since the effective date of the Order of Disbarment. See C.R.C.P. 251.29(a)(stating that a disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment). Bullock sat for and successfully passed the February 2003 Colorado Bar Exam. He sat for and passed the Multistate Professional Responsibility Exam on August 9, 2002. See C.R.C.P. 251.29(a). Bullock has taken Continuing Legal Education courses in Colorado and Tennessee totaling in excess of 60 hours of general credits and 18.5 hours of ethics within the last three years.

Bullock has been employed for the last year as a law clerk with the law firm of Todd & Dossett, P.C. in Kingsport, Tennessee. Both supervising attorneys, Mr. Todd and Mr. Dossett, have confirmed that Bullock is of sound character. They also confirmed that Bullock has been an exceptional employee, is hard working, loyal and trustworthy and would be an excellent lawyer. Bullock currently resides in Tennessee. He has obtained four different licenses/certifications all of which have some legal requirement of proof of good character, including: a Florida Real Estate License; a Florida Mortgage Brokers License; a USCG Merchant Marine Captain's License, and a NFL Players Agent Certification. Bullock is currently enrolled in science courses which will eventually qualify him to sit for the Patent Bar Exam in approximately one year. Bullock has remained informed in the areas of law in which he hopes to practice by reading current legal publications.

At the time of his representation of the criminal defendant, Bullock had been admitted to the bar in Colorado for less than one year. It was his nature at that time to become over-involved with his clients and attempt to fix problems for others, leading to a blurring of boundaries. Bullock arranged to provide funds to the prior client after learning that he had unlawfully left the correctional facility. Bullock did so based on the prior client's representation that he needed funds to provide bus fare to his son to return home. Bullock believed the prior client and provided the funds. He did so because he felt guilty about the outcome of the proceeding as a result of his representation. He had grown close to the prior client's family and particularly to the prior client's son. Bullock described the conviction as an "atomic bomb" in his life.

In the past ten years, through work, self-examination, and personal growth, Bullock has demonstrated that he has learned from his mistake and fundamentally changed his approach to relationships with others. Bullock understands the need to enforce personal and professional boundaries and the importance of these boundaries in a professional relationship. He has maintained his marriage of nineteen years. Individuals who are familiar with Bullock believe he is trustworthy, loyal and competent. He has been an active member of his church and supporter of charitable events in his community.

Bullock has accepted full responsibility for his actions. He recognizes the seriousness of his previous misconduct. Bullock has been candid and remorseful about the cireum-stances that resulted in the disbarment.

Bullock has complied with all past orders and disciplinary orders; he paid the $49.25 in costs required pursuant to the Supreme Court's Order of disbarment. He paid the $1,240 he was ordered to pay in the criminal proceeding.

II. CONCLUSIONS OF LAW

C.RCP. 251.29(a) provides in relevant part:

Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney's fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to the Regulation Counsel ... the attorney . must demonstrate by clear and convincing evidence the attorney's rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter.
C.R.C.P. 251.29(c) further provides in part: The petition for reinstatement must set forth:
(8) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;
(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension; and
(6) A statement of restitution made as ordered to any persons and the Colorado Attorneys' Fund for Client Protection and the source and amount of funds used to make restitution.

People v. Klein, 756 P.2d 1013, 1016 (Colo.1988), interprets the language of the prior readmission rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in readmission proceedings in order to evaluate an attorney's rehabilitation. Klein requires:

[AJny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the [petitioner's] state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the [petitioner], the personal and community service aspects of the [petitioner's] life, and the [petitioner's] recognition of the seriousness of his previous misconduct.

Under the factors set forth in Klein, 756 P.2d at 1016, the Hearing Board finds that Bullock established by clear and convincing evidence that he is rehabilitated. Bullock has established his professional competence by passing the Colorado Bar Exam and the Multistate Professional Responsibility Exam. He has been employed as a law clerk with a firm in Tennessee and has garnered the respect from his supervising attorneys, both with regard to the quality of his work and his good character. In addition to his work in the field of law, he has taken appropriate steps to remain current with the law, having met and surpassed the required number of credits of Continuing Legal Education courses in Colorado. He has also kept abreast of the current law by reading legal periodicals.

Bullock demonstrated with candor and sincerity that he has given a great deal of careful thought over the last nine years to his conduct which gave rise to the disbarment. He accepts complete responsibility for his error in judgment. He recognizes the seriousness of his previous misconduct.

Bullock has established that he is of good moral character. He has maintained a stable relationship with his wife and is active in his community. Bullock has established that future similar misconduct is unlikely. Bullock fully complied with the terms and conditions of the eriminal matters and fully complied with all disciplinary orders and the requirements of C.R.C.P. 251.29.

The People stipulate that Bullock has demonstrated rehabilitation, professional competence and compliance with all disciplinary orders. The People further stipulated to Bullock's readmission to the practice of law in Colorado. The evidence having established by a clear and convincing standard that Bullock has been rehabilitated, the Hearing Board herein Orders that Bullock shall be readmitted to the practice of law.

III. ORDER OF REINSTATEMENT

IT IS THEREFORE ORDERED:

1. TIMOTHY A. BULLOCK is READMITTED to the practice of law effective upon the satisfaction of the following conditions:

A. Payment of all necessary Attorney Registration fees and completion of all necessary forms required by the Colorado Office of Attorney Registration; and
B. Taking of the Oath of Admission before an appropriate judicial officer.

2. Bullock shall pay costs of the readmission proceeding. The People shall file a Statement of Costs within fifteen (15) days of the date of this Order; Bullock shall have ten (10) days thereafter to file a Response;

3. Bullock shall be assigned a new attorney registration number.

      . Upon the parties' motion, the PDJ took judicial notice of the Stipulation.

      . Bullock was immediately suspended by Order of the Supreme Court on May 20, 1994 for the same facts giving rise to the disbarment.

      . Bullock's prior client was represented by new counsel during the post-conviction proceedings.

      . CRCP. 241.6(5) was replaced by CRCP. 251.5(b) effective January 1, 1999.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. Robert E. WOODFORD, Respondent.
    No. 02PDJ007.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Oct. 29, 2003.

      Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge, ROGER L. KEITHLEY, and Hearing Board Members LAIRD T. MILBURN and DOUGLAS D. PIERSEL, both members of the bar.
   OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR FIFTEEN MONTHS

A trial pursuant to C.R.C.P. 251.18(d) was held on November 25, 2002 before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two Hearing Board Members, Laird T. Mil-burn and Douglas D. Piersel, both members of the bar. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Robert E. Woodford, the respondent, ("Woodford") failed to appear in person or by counsel.

In Case No. 02PDJ007, the People filed a Complaint on January 24, 2008. On February 19, 2002, Woodford filed an Answer to the Complaint. On March 22, 2002, the People filed an Amended Complaint and Wood-ford did not file an Answer thereto. The matter was initially set for trial on July 15 and 16, 2002 and, upon Woodford's unopposed motion, was continued to November 25 and 26, 2002. On November 15, 2002, the People moved for default on Case No. 02PDJ007, which was denied on the grounds that it was not timely filed.

On March 5, 2002, the People filed a Complaint in Case No. OZ2PDJO15. Upon motion of the People, the PDJ consolidated the two cases on April 4, 2002.

At the trial on November 25, 2002, the following witnesses testified on behalf of the People: Erwin Gemmer, D.C. via telephone; James Ingraham; John DeBruyn; Hollie Wieland; Magistrate E. David Griffith, and John Edward Smith. The People's exhibits 1 through 10 were admitted into evidence. Woodford's letter dated November 18, 2002 was marked as exhibit A and admitted into evidence. The Hearing Board considered the People's argument, the testimony of the witnesses, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Woodford has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court on January 9, 1987, and is registered upon the official records of the Court under attorney registration number 16379. He is subject to the jurisdiction of the Court pursuant to C.R.C.P. 251.1(b).

Case No. O2PDJOO7

In 1998, John Edward Smith ("Smith") consulted Woodford regarding the protection of his assets from taxes and ereditors. Woodford advised Smith that by placing his home and vehicle in a trust, he could avoid paying taxes in the future, and could protect his assets from creditors. Woodford told Smith the tax code was illegal. He advised Smith to write a letter to the United States Attorney General stating that Smith desired to stop paying taxes. Woodford said he would structure the trust so that Smith was to manage the trust and have control and use of the trust property including the ability to remove and utilize funds and to refinance his home. Smith paid Woodford $2,500 for preparing the trust documents.

On March 10, 1998, Smith executed trust documents prepared by Woodford. On the same day, Smith and his wife executed a Quit Claim Deed prepared by Woodford intended to transfer Smith's home to the trust. The deed was recorded on September 25, 1998. Woodford did not explain the documents, the procedure, or the effect of the procedure to Smith. The trust instrument stated in part that the trust property could not be "held under attachment for Trustee(s) personal debts." See People's exhibit 1, Article XL The trust instrument further stated in part that "[this "Trust Estate" shall have no tax liability in any jurisdiction which is foreign to the freely associated compact state of America, in which this "Trust Estate" is domiciled." See People's exhibit 1, Article XXIIL. Smith's mother, mother-in-law and Woodford were appointed as trustees of the trust.

At the time he performed these services for Smith, Woodford had an outstanding debt to a law firm for unpaid attorneys' fees. The law firm reduced the obligation to judgment and filed a lien on all real property held by Woodford in El Paso County. Because Woodford had drafted the Smiths' Quit Claim Deed so that it transferred their home to the trustees as individuals, including Woodford, the law firm's judgment against Woodford encumbered the Smiths' property.

Smith discovered the judgment the day the loan to refinance his home was to close. Smith informed Woodford who, in turn, wrote a letter to the title company explaining the situation. Woodford drafted and recorded a subsequent Quit Claim Deed which was supposed to correct the encumbrance upon Smith's property. Woodford's actions did nothing to correct the encumbrance his actions had imposed upon Smith's property.

Woodford did not take any meaningful steps available to clear title to the Smiths' home. Significantly, he did not make efforts to pay the judgment. Smith retained counsel to terminate the trust, who filed Case No. 99PRO599 in El Paso District Court, captioned In the Matter of: Schaal Smith Famity Trust By Order dated October 8, 1999, the trust was terminated and the assets distributed. Smith expended $2,300 in attorney's fees to terminate the trust Woodford had provided to Smith. Smith thereafter filed for bankruptcy protection.

Woodford has not refunded any portion of the fees paid to him for the erroneous legal work and advice he rendered to Smith, nor has he made efforts to pay restitution to Smith for the $2,800 paid to correct the encumbrance imposed against his property by Woodford's actions.

In connection with the judgment obtained by the law firm against Woodford, the law firm conducted at least three C.R.C.P. 69 proceedings against Woodford. Woodford gave testimony in the C.R.C.P. 69 proceedings that although he had income during 1996, 1997 and 1998 he had not filed tax returns for those years and may owe taxes.

Case No. O@PDJO15

In June 2000, Erwin Gemmer, D.C. ("Gem-mer") retained Woodford to assist him in sheltering his assets from tax liability. Woodford agreed to prepare the documents Gemmer requested for $4,500 and requested $3,000 up front. On June 2, 2000, Gemmer paid Woodford $2,000 and paid him an additional $1,000 on June 6, 2000.

On June 16, 2000, Gemmer provided written direction to Woodford outlining how he envisioned structuring a trust. On the same day, Woodford wrote to Gemmer stating that he would draft a trust, assist in transferring property into the trust, provide Gemmer with trust management training, render advice on restructuring his business activities, and assist with problems should they develop.

Over the next several months, Gemmer repeatedly attempted to reach Woodford but was able to speak with him only twice. In late October 2000, Gemmer reached Wood-ford's assistant and informed her that Gem-mer had drafted some documents which he wished Woodford to review. By undated letter, Gemmer wrote to Woodford and requested that he review documents.

On November 10, 2000, Woodford provided Gemmer with information which Gemmer had not requested, and stated that he had not yet received the materials Gemmer wanted him to examine.

On November 27, 2000, Woodford wrote Gemmer a letter stating that he had studied Gemmer's documents and described his understanding of how the trust would function. Woodford requested that Gemmer confirm this was the arrangement he desired. Gem-mer promptly telephoned Woodford and confirmed that it was.

Thereafter, Gemmer was able to reach Woodford one time out of approximately forty times Gemmer attempted to contact him from November 27, 2000, to April 18, 2001. Gemmer informed Woodford's secretary that he would file a request for investigation if Woodford did not return Gemmer's funds. Shortly thereafter, Woodford wrote to Gem-mer stating that he had been waiting for a written confirmation to proceed with the work Gemmer requested.

Woodford spent an unknown amount of time reviewing documents Gemmer had sent. Gemmer never received a written record of the time Woodford had expended.

On April 20, 2001, Gemmer again requested that Woodford refund his payments. On April 20, 2001, Gemmer provided notice to Woodford that he had obtained other counsel and again requested a refund of the $3,000.

To date, Woodford has not refunded any portion of the $3,000 to Gemmer.

II. CONCLUSIONS OF LAW

Case No. O2PDJOO07

The Amended Complaint in Case No. 02PDJ007 alleges that Woodford violated Colo. RPC 1.1(an attorney shall provide competent representation to a client) by preparing an invalid trust for clients; Colo. RPC 1.2(a)(an attorney shall abide by a client's objectives) by failing to pursue the objectives of his client; Colo. RPC 1.38 (an attorney shall act with reasonable diligence and promptness in representing a client) by neglecting legal work entrusted to him; Colo. RPC 1.5(a)(an attorney's fee shall be reasonable) by charging an excessive fee for the work he performed for the Smiths; and Colo. RPC 8.4(b)(it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the attorney's honesty, trustworthiness or fitness as an attorney in other respects) by failing to file tax returns for the years 1996, 1997 and 1998 as required by 26 U.S.C. § 7208 (1982).

In the Smith matter, the trust created by Woodford was not recognized by the IRS and did not address or accomplish the purposes Smith paid Woodford to achieve. The trust agreements prepared by Smith served no useful purpose whatsoever. Woodford violated Colo. RPC 1.1 by preparing unenforceable trust documents. Wood-ford's actions accomplished no tax objectives or asset protection for Smith.

Woodford failed to advise Smith of available legal methods to minimize tax liability and provide some measure of protection of his assets against existing debt and creditors. Rather, Woodford directed Smith down a course of action incapable of satisfying his intended objectives and posing a significant risk of serious harm. By doing so, Woodford violated Colo. RPC 1.2(a).

When Woodford's scheme resulted in a lien attaching to Smith's property, Smith asked Woodford to remedy the problem before his anticipated refinancing took place. Woodford issued a second Quit Claim Deed which had no effect upon the problem he had created. Smith's refinancing failed due, in part, to that encumbrance. Woodford took no further action to remedy the legal difficulties his course of action had triggered. Woodford's failure to undertake prompt corrective action subsequent to his client's request to do so constitutes neglect and violated Colo. RPC 1.8.

The alleged violation of Colo. RPC 1.5(a) is more difficult. Woodford charged a fee of $2,500 for the work he did on Smith's case. Examination of the factors normally considered in determining whether a fee is reasonable do not realistically assist in this case. The work Woodford performed, however, was not in accord with his client's objectives, was, in virtually every respect, incompetent, and was completely lacking in value of any kind to the client. Although a fee of $2,500 may well be reasonable for the preparation of a trust providing tax and asset protection benefits upon a client, under circumstances such as those present in this case, where the documents neither address the client's objectives, evidence some measure of meaningful legal analysis for the client, or confer some legally recognizable benefit upon the client, such a fee is not reasonable. See People v. Gordon, 199 Colo. 296, 607 P.2d 995 (1980). The fee charged by Woodford in this case is a violation of Colo. RPC 1.5(a).

Finally, Woodford's failing to file tax returns for the years 1996, 1997 and 1998 constitutes a misdemeanor pursuant to 26 U.S.C. § 7208 (1982) and a violation of Colo. RPC 8.4(b).

Case No. O2PDJO15

The Amended Complaint in Case No. 02PDJO015 alleges that Woodford violated Colo. RPC 1.3 (neglect of a legal matter); Colo. RPC 1.16(d)(an attorney shall, upon termination of representation ... refund any advance payment of any fee not earned) and Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Woodford failed to structure the trust Gemmer requested over a ten month period constituting neglect of a legal matter in violation of Colo. RPC 1.8. The sparse evidence before the Hearing Board establishes that Woodford completed some work for Gemmer by reviewing the documents Gemmer had provided to him and rendering an opinion on those documents. Because Woodford performed an unknown amount of work reviewing the documents provided to him by Gem-mer, the evidence did not establish by a clear and convincing standard that there were funds owing to Gemmer upon Gemmer's termination of Woodford. Accordingly, the alleged violation of Colo. RPC 1.16(d) is dismissed.

Similarly, the alleged violation of Colo. RPC 8.4(c) is based on Woodford's conversion of Gemmer's funds. Based on the evidence presented at the trial in this matter, it was not established that funds remained unearned and were owed to Gemmer at the time of termination. Accordingly, the alleged violation of Colo. RPC 8.4(c) is dismissed.

III IMPOSITION OF SANCTIONS

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 4.52 provides that "Is luspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client." In the Smith matter, Woodford demonstrated lack of competence in preparing a trust inconsistent with the objectives of his client. Woodford's misconduct required Smith to employ other counsel to correct Woodford's actions and, thereby, caused injury to Smith. Woodford has not paid restitution to Smith.

ABA Standard 4 42(a) provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. In the Gemmer matter, Woodford failed to complete the work requested over a ten-month period.

Pursuant to ABA Standard 5.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice. Woodford's failure to file tax returns for three years, although a misdemeanor, does seriously adversely reflect on his fitness to practice law. People v. Perkell, 969 P.2d 703, 704 (Colo.1998); People v. Borchard, 825 P.2d 999, 1000 (Colo.1992); People v. Emeson, 638 P.2d 293, 295 (1981). Accordingly, a period of suspension is warranted.

Aggravating and mitigating factors were considered pursuant to ABA Standards 9.22 and 9.32, respectively, in arriving at the appropriate sanction. Woodford did not appear at the trial in this consolidated matter; therefore, no mitigating factors were presented.

In aggravation, Woodford has prior discipline, considered an aggravating factor pursuant to ABA Standards 9.22(a). In March 1993, Woodford received a letter of admonition for engaging in a conflict of interest by representing opposing parties. In August 1997, pursuant to a Conditional Admission of Misconduct, Woodford stipulated to a private censure for failing to communicate with the client and failing to provide an accounting when requested upon termination. Smith's motive in both the Smith and Gemmer cases was selfish. See id. at 9.22(b). Woodford engaged in a pattern of misconduct , see id. at 9.22(c), he failed to participate in this consolidated disciplinary proceeding, see id. at 9.22(e), and he has demonstrated an indifference to making restitution, see id at

Woodford states in a letter to Attorney Regulation Counsel that he has permanently closed his law practice. ABA Standard 9.4(d) provides that resignation from the practice of law prior to the completion of disciplinary proceedings is irrelevant for purposes of the imposition of the appropriate sanction.

IV. ORDER

It is therefore ORDERED:

1. ROBERT E. WOODFORD is suspended from the practice of law for a period of fifteen (15) months effective thirty-one (81) days from the date of this Order.
2. Woodford shall refund to John Edward Smith the fee paid by him in the amount of $2,500, plus statutory interest from March 10, 1998 to the date of payment, within ninety (90) days from the date of this Order.
3. Woodford shall pay the costs of this disciplinary proceeding.

The People shall file a Statement of Costs within fifteen (15) days of the date of this Order; Woodford shall have five (5) days to file a Response thereto.

      . On November 22, 2002, the PDJ received a letter from Woodford dated November 18, 2002, addressed to Attorney Regulation Counsel stating that he would not be attending trial and was closing his office permanently.

      . CR.C.P. 69 authorizes a judgment creditor to place the judgment debtor under oath and make inquiry into the amount and location of assets that may be available to satisfy the judgment.

      . It is unclear from the evidence when the documents were provided to Woodford for his review.

      . An alleged violation of Colo. RPC 8.4(h) is listed in the heading of claim one only and not discussed in the Amended Complaint thereafter. Accordingly, the alleged violation of Colo. RPC 8.4(h) is not properly charged and is not addressed.

      . Woodford's failure to provide competent representation went far beyond the preparation of the useless trusts. He rendered erroneous advice regarding Smith's continuing duty to pay taxes, and the methods available to minimize Smith's taxes and methods to protect Smith's assets from existing debts and creditors. Those actions, however, were not alleged as violations of Colo. RPC 1.1 and are not considered in arriving at an appropriate sanction.

      . The factors normally considered are:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent.

      . 26 U.S.C. § 7203 provides in relevant part:
      Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

      . ABA Standard 5.11(a) provides that {d}isbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice; false swearing; misrepresentation; fraud; extortion; misappropriation; or theft, or the sale of distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses.

      . The Complaint in OZPDJO15 alleged that Wood-ford "has prepared 25 to 30 trusts similar to the one he prepared for Smith." No evidence, however, was offered to support that allegation.


text:
    Richard J. GOFF, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 03PDJ049
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Dec. 17, 2003.
    Opinion by a Hearing Board consisting of the Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members CORINNE MARTINEZ-CASIAS and J.D. SNODGRASS, both members of the bar.
   OPINION AND ORDER REINSTATING RICHARD J. GOFF'S LICENSE TO PRACTICE LAW

Attorney Reinstated to the Practice of Law

This reinstatement hearing was heard on October 28, 2003, pursuant to C.R.C.P. 251.29(b) and (c) before the Presiding Disciplinary Judge ("PDJ") and Corinne Martinez-Casias and J.D. Snodgrass, both members of the bar. Naney L. Cohen, Chief Deputy Regulation Counsel, represented the People of the State of Colorado (the "People") and Richard J, Goff ("Goff") appeared pro se. Testimony was received from Rex H. McGehee, M.D., John Scherling, Jack Pernitz and Goff. Exhibits 1 through 15 were introduced into evidence. The People did not object to Goff's reinstatement and acknowledged that he had met his burden of proof on each element necessary for reinstatement.

I. FINDINGS OF FACT

The Hearing Board made the following findings of fact by clear and convincing evidence:

Richard J. Goff has taken the oath of admission and was admitted to the bar of this court on May 16, 1990 and is registered as an attorney upon the official records of this court, attorney registration number 19848. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b). Goff was suspended from the practice of law effective October 11, 1999 by Order of the PDJ. The Order approved a Stipulation and Agreement Containing the Respondent's Conditional Admission of Misconduct ("Conditional Admission"), pursuant to which the People and Goff agreed to a six-month suspension with conditions. One of the express conditions was the requirement that Goff undergo a reinstatement proceeding. In addition, Goff was ordered to pay the costs of the disciplinary proceeding, which he paid in a timely fashion. Goff gave notice to his clients of his suspension in accordance with C.R.C.P. 251.28(b), notice to opposing parties in litigation pursuant to C.R.C.P. 251.28(c) and filed the requisite affidavit under C.R.C.P. 251.28(d).

On May 17, 2000, Goff's first reinstatement hearing was conducted. The Hearing Board in that proceeding issued its decision denying reinstatement on August 4, 2000. See Goff v. People, 35 P.3d 487 (Colo.O.P.D.J.2000). That decision sets forth Goff's disciplinary history and will not be repeated here.

In August 2002, Goff again applied for reinstatement. On October 6, 2002, a reinstatement hearing commenced before another Hearing Board. Prior to the conclusion of Goff's presentation of evidence, Goff moved to withdraw his Petition for Reinstatement. The People did not object and the PDJ granted Goff's motion to withdraw the petition.

On July 10, 2003, Goff filed the present Petition for Reinstatement.

Prior to October 2002, Goff entered therapy with Maureen McKenzie, L.C.S.W., for depression. In addition, Goff was under the care of Rex H. McGehee, M.D., a psychiatrist. Eventually, Dr. McGehee diagnosed Goff as suffering from Bi-Polar Disorder and prescribed appropriate medication. After a significant period of medication adjustment, Goff's Bi-Polar Disorder and depression are under control.

During the year immediately preceding this reinstatement hearing, Goff made dramatic improvement. The report of Gregory A. Wilets, M.D., the People's independent medical evaluator states:

In fact, in my twenty-two years of practicing psychiatry, [Goff's] overall change in presentation over the last year has been one of the more remarkable changes that I have witnessed in my practice in this relatively short period of time.
More precisely, Mr. Goffs narcissism has been confronted and he has been humbled, and with much contrition has realized that there are limits to what he can do. Germane to his history of abusing the legal system, he is able to acknowledge that in the past he was "Way out of line," and needed to be reeled in and controlled .... [hle now sees these attitudes as being entirely dysfunctional and unacceptable behaviors.
No longer does he see [others] as the source of his professional problems, but now appropriately sees himself as the source of the disciplinary action taken against him ... [rlather than externalize his previous dysfunction, he now takes ownership of his improper behavior.

Dr. McGehee concurred with Dr. Wilets conclusions. The medical control of Goff's Bi-Polar Disorder and depression now allows Goff to exercise appropriate personal and professional judgment. Goffs need for appropriate medication will likely be life long in duration.

Goff has maintained competence in the law. Since 2000, Goff has completed 47 hours of Continuing Legal Education and has worked as a paralegal under the supervision of an attorney preparing pleadings and conducting legal research.

II. CONCLUSIONS OF LAW

The reinstatement process begins with the submission of a Verified Petition for Reinstatement. C.R.C.P. 251.29(c) requires that the attorney's Petition for Reinstatement set forth, in part:

(8) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;
(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

The attorney seeking reinstatement must establish the three elements set forth in the rule by clear and convincing evidence. See C.R.C.P. 251.29(d). C.R.C.P. 251.29(b) sets forth the test which must be met during a reinstatement proceeding in order to authorize reinstatement to the practice of law. It provides, in relevant part:

An attorney who has been suspended ... must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.
Thus, an attorney who has been suspended from the practice of law must bear the burden of proving that he or she is: (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (8) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized.

People v. Klein, 756 P.2d 1013, 1016 (Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. Klein requires:

[Alny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent's state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent's life, and the respondent's recognition of the seriousness of his previous misconduct.

Goff has established that during the period of his suspension he has undergone a fundamental change in character. Due in part to both his medical treatment and his recognition of the seriousness of his prior misconduct, Goff is a very different person than the one who engaged in the original misconduct or appeared before the prior reinstatement Hearing Boards. Goff has demonstrated rehabilitation and fitness to practice law as required by C.R.C.P. 251.29.

The Hearing Board is required to protect the public interest in allowing Goff to resume the practice of law. The evidence presented in this proceeding was uncontroverted that Goff's rehabilitation, and in particular, his ability to exercise informed judgment, is dependent upon proper medical management. Indeed, Goff acknowledged that proper medical management of his condition will likely be a life long undertaking. Accordingly, the Hearing Board concludes that the imposition of conditions pursuant to C.R.C.P. 251.29(e) is appropriate in authorizing Goff to resume the practice of law.

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

1. RICHARD J. GOFF is reinstated to the practice of law effective immediately, and subject to the following condition:
2. Richard J. Goff will continue to receive medical treatment for his mental condition, shall comply with all recommendations of his treating medical providers and shall take all medications as pre-seribed so long as required by the treating medical professionals.
3. Richard J. Goff shall pay the costs of this proceeding. The People shall submit a Statement of Costs within fifteen days of the date of this Order. Goff shall have ten days thereafter to submit a response thereto.

      . The parties stipulated that Goff has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline.


author: HODGES, J.

text:
    2003 OK 17
    Sheryl YSBRAND and Mary Cooney, individually and on behalf of all others similarly situated, Appellees, v. DAIMLERCHRYSLER CORPORATION, a Delaware corporation, individually and as successor in Interest to Chrysler Corporation and Chrysler Corporation, a Delaware corporation, individually, Appellants.
    No. 97,469.
    Supreme Court of Oklahoma.
    Feb. 25, 2008.
    Rehearing Denied Nov. 6, 2003.

      Clyde A. Muchmore, Harvey D. Ellis, Jr., Courtney K. Warmington, Crowe & Dunlevy, Oklahoma City, OK, Peter W. Herzog, III, Bryan Cave, St. Louis, MO, Thomas G. Wolfe, Lyndon W. Whitmire, Phillips, McFall, McCaffrey, McVay & Murrah, Oklahoma City, OK, for Appellants.
    Harry Scoufos, Sallisaw, OK, Darleen Jacobs, New Orleans, LA, James Minge, New Orleans, LA, Joseph J. McKernan, Baton Rouge, LA, Patrick W. Pendley, Plaquemine, LA, Robert E. Reeves, Lexington, KY, Anthony Majestro, Masters & Taylor, Charleston, WV, Stephen E. Van Gaasbeck, San Antonio, TX, for Appellees.
   HODGES, J.

T1 This opinion reviews the trial court's determination that this dispute meets the requirements for a class action found at Title 12, section 20283, of the Oklahoma Statutes. The class certification order is affirmed as to the warranty claims asserted but is reversed as to the claim for fraud and deceit.

[ 2 Defendant, DaimlerChrysler, is a Delaware corporation with its principal place of business in Michigan. It manufactured over one million 1996 and 1997 model "minivans" equipped with front passenger seat air bags. Plaintiffs, each an owner of one of the minivans, have asserted Uniform Commercial Code claims for "breach of express warranty," "breach of implied warranty of merchantability," and "breach of implied warranty of fitness." In addition, they assert a claim for "fraud and deceit."

T3 Plaintiffs' claims are based on their assertion that the front passenger seat air bags are defective due to "1) their propensity to deploy with overly aggressive force and 2) their propensity to deploy during a low speed collision." Plaintiffs further assert that Da-imlerChrysler failed to warn purchasers that this defect has the potential to kill or seriously injure a child or small adult seated in the front passenger seat. According to Plaintiffs, there are air bags available which de-

ploy with less force and at higher collision speeds. They claim that these bags are currently used as replacements when a bag has been deployed. Plaintiffs seek damages in an amount sufficient to allow owners to install the "safer" air bags or, in the alternative, replacement of the "defective" air bags by DaimlerChrysler.

[4 Following initial discovery and a hearing, the trial court issued a twenty-one page order certifying a class consisting of Plaintiffs and

[all entities and adult persons domiciled or residing in any of the fifty states of the United States of America or in the District of Columbia, who purchased and who, according to motor vehicle registration ree-ords maintained by their respective states or districts of residence or domicile, can be identified as the current owner of at least one (1) model year 1996-1997 "minivan" automobile marketed by defendant as Chrysler Town & Country or Chrysler Minivan or Plymouth Voyager or Plymouth Grand Voyager or Dodge Caravan, which was manufactured by defendant for sale in any of the fifty states of the United States of America or the District of Columbia, or which defendant marketed in any of the fifty states of the United States of America or the District of Columbia as a product of its own manufacture, which was configured at the time of original sale or occupancy by at least five (5) passengers, and which contains on the driver side and/or passenger side of the forward seating area a passive restraint system commonly known as an "air bag," which employs a fabric-covered envelope designed to expand rapidly with sodium azide or other gases and thus cushion a front-seat occupant when the system is activated by a sensor during a frontal collision.

Excluded from the class were (1) those who have suffered personal injury from air bag deployment, (2) DaimlerCrysler employees and affiliates, (3) judges and judicial personnel, (4) those who have had their air bags deactivated, and (5) those who had the original air bags replaced. DaimlerChrysler now appeals the class certification order and the matter has been retained for this Court's review.

15 A trial court's class certification order is reviewed for abuse of discretion. Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, 41 P.3d 366, 367. "An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence." Patel v. OMH Med. Cir. Inc., 1999 OK 33, 987 P.2d 1185, 1194. If the record does not demonstrate that the requisites for class action have been met, the trial court has abused its discretion. Greghol Ltd. Partnership v. Oryx Energy Co., 1998 OK CIV APP 111, 959 P.2d 596, 598. "The pragmatically correct action, in the face of a close question as to certification, has been said to sustain certification because if it develops later during the course of the trial that the order is ill-advised, the order is always (prior to judgment on the merits,) subject to modification." Perry v. Meek, 618 P.2d 934, 940 (Okla.1980).

16 Class action is a procedural device provided by Title 12, section 2028, of the Oklahoma Statutes. It permits plaintiffs to "vindicat[e] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost." Deposit Guar., Nat'l Bank v. Roper, 445 U.S. 326, 338, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). Section 2028 requires, as does its federal counterpart; numerosity, commonality, typicality, and adequacy of representation. In addition, the court must find that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Id. at § 2023(B)(8).

T7 DaimlerChrysler challenges the trial court's determination that each of these requirements was demonstrated by Plaintiffs. Its challenge is focused primarily on whether common questions of law and fact predominate and whether a class action is superior to other available methods of adjudicating the controversy. DaimlerChrysler also argues that the class representatives and their counsel are inadequate.

I. COMMON ISSUES OF LAW OR FACT

A. Issues of Law

{8 DaimlerChrysler argues that common issues of law or fact do not predominate because varying state laws will apply to the asserted claims and defenses. It cites KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, 9 P.3d 683, in which this Court found no abuse of discretion in the trial court's refusal to certify a class for lack of predominating issues. The proposed class consisted of private aircraft owners who alleged four different product defects against multiple defendants in different states. The matter required application of differing terms in hundreds of nonuniform aircraft purchase contracts. Id. at 690-691. Because the substantive law of numerous states applied to issues which were not common to the entire class, there was no predominance and the trial court did not err in refusing to certify the class. Id.

19 In this matter the trial court determined that "the alleged choice of law problems identified by [DaimlerChrysler did] not bar certification." It relied upon In re Bridgestone/Firestone, Inc. Tires Liability Litigation, 155 F.Supp.2d 1069 (S.D.Ind.2001), which granted class certification upon a finding of predominance.

110 In Firestone, a federal district court sitting in Indiana determined which state's substantiative law applied to a nationwide state law class action. Buyers had asserted tort and contract claims against Ford Motor Co. and Bridgestone/Firestone, Inc. for alleged tire defects on Ford's Explorer model sport utility vehicle. The court reasoned that because "the relationship between the parties [was] simply that of buyer and seller," the place where the products were purchased was not significant to the claims for product defect. Id. at 1082. Rather, it was "the conduct of Defendants as manufacturers" which was the foeus of the litigation. Id. Therefore, the law of Michigan and Tennessee, the principal places of business of the manufactures, controlled.

{11 The trial court's application of Firestone to this matter evidences its intent to apply the substantive law of Michigan, Daim-lerChrysler's principal place of business, to the claims and defenses asserted. Application of Oklahoma's choice of law rules supports that conclusion.

1. Choice of Law-UCC Claims

112 The "most significant relationship" test applies to an action for breach of warranty in a sale of goods under Article 2 of the UCC. See Collins Radio Co. v. Bell, 623 P.2d 1039, 1046-47 (Okl.Civ.App.1980) ("The same rationale for accepting the [most significant relationship test] for torts dictates that its application should be made to actions that fall under Article 2 of the Uniform Commercial Code.") See also Bohannan v. Allstate Ins. Co., 820 P.2d 787, 795 (Okla.1991) ("[The UCC supports the most significant relationship test as applied in Collins Radio.") This test is guided by principles and contacts from the Restatement (Second) of Conflicts (1971). It determines which state's law is most directly connected to the parties and the transaction.

113 Under section 6 of the Restatement, the factors relevant to any choice of law decision include:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(£) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

The contacts to be considered in applying these principles to an issue in contract in-elude:

(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
The contacts are to be evaluated according to their relative importance with respect to the particular issue.

Id. at § 188(2) (emphasis added). However, a third provision, section 191, applies to a sale of interests in chattel. "So in a contract for the sale of goods the most significant contact is the place of delivery unless another state has a more significant relationship." Collins Radio, 623 P.2d at 1047. As comment f. to section 191 explains: "On occasion, a state which is not the place of delivery will nevertheless, with respect to the particular issue, be the state of most significant relationship to the transaction, the parties and the chattel and hence the state of the applicable law." The particular dispute in this matter presents such an occasion in which "the local law of some state other than that of delivery should be applied in any event because of the intensity of the interest of that state in the determination of the particular issue." Id.

T 14 All 50 states and the District of Columbia bear some relationship to the parties and transactions in this dispute by virtue of the nationwide sales of the minivans. The question becomes whether the relationship of each state where the vehicles were purchased is more significant to the parties and this litigation than that of Michigan, the principal place of business of DaimlerChrysler.

T15 The Restatement's section 188(2) contacts of the place of contracting, the place of negotiation and performance, and the location of the subject matter are of diminished significance to the sales of the minivans. The UCC warranties are not something which is negotiated in the purchase of a new car. Thus, the relative interest of each buyer's home state in applying its version of the UCC is more or less equal. By contrast, Michigan's interest in having its regulatory scheme applied to the conduct of a Michigan manufacturer is most significant. Michigan is where the decisions concerning the design, manufacture, and distribution of the minivans were made. Michigan is the only state where conduct relevant to all class members occurred. The principal place of DaimlerChrysler's business is the most important contact with respect to the UCC warranty claims.

Y16 The selection of Michigan law furthers the relevant factors stated in section 6 of the Restatement. The needs of the interstate system and the basic policies of predictability and uniformity of result require that the issue of product defect be determined in one forum with one result rather than in 51 jurisdictions with the very real possibility of conflicting decisions. While the interest of each home state in applying its local law is significant, Michigan's interest in the conduct of its manufacturer, and thus its connection to the warranty issues, is greater. Michigan law applies. It should be noted that this conclusion is consistent with the constitutional imperative that "for a state's substantive law to be selected in a constitutionally permissible manner, that state must have a significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-313, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981)).

2. Choice of Law-Fraud and Misrepresentation

117 Section 148 of the Restatement® applies to actions to recover pecuniary damages for false representations whether fraudulent, negligent, or innocent. Subsection (2) applies to this dispute because the nationwide representations in DaimlerChrys-ler's advertising were made in states outside each class member's home state. The home state is where each class member acted in reliance on those representations by purchasing a minivan. Thus, this Court is directed to consider:

(a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations,
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicil, residence, nationality, place of incorporation and place of business of the parties,
(e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and
(£) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant.

The comments to subsection (2) describe (a), (b), (c), and (d) as the "more important of these contacts." Comment j. articulates the general approach:

If any two of the above-mentioned contacts, apart from the defendant's ... place of business, are located wholly in a single state, this will usually be the state of the applicable law with respect to most issues. So when the plaintiff acted in reliance upon the defendant's representations in a single state, this state will usually be the state of the applicable law, with respect to most issues, if (a) the defendant's representations were received by the plaintiff in this state, or (b) this state is the state of plaintiffs domicil....

118 In this matter, each class member presumably received the representation in their home state, their place of domicile. Therefore, the contacts point to each class member's home state for the applicable law. Applying the law of 51 jurisdictions to the fraud claim presents an overwhelming burden which would make the class unmanageable and a class action determination of that claim inappropriate. The class action certified by the trial court will go forward only on the warranty claims asserted.

B. Issues of Fact

T 19 The trial court found that the operative facts giving rise to the claims against DaimlerChrysler raise two questions which are common to the entire class: (1) whether the air bags are defective and (2) whether DaimlerChrysler withheld information concerning the alleged defect from those who purchased the minivans. As the trial court observed, "(tlhe resolution of these issues will be applicable to each and every class member and will be dispositive of every class member's claim." As the fraud claim is no longer part of the class action, factual disputes concerning that claim no longer present litigable issues to be resolved.

1 20 DaimlerChrysler argues that the need for individual proof of each class member's reliance on the express warranty defeats predominance. Plaintiffs respond that any need for particularized proof of reliance does not defeat the commonality and typicality of the issue of product. defect.

121 Whether individual findings of reliance are required goes to the merits of the claims. It is a question of Michigan law. A need for individual findings would not, however, defeat class certification. "Factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory." Lobo Exploration Co. v. Amoco Productions, 1999 OK CIV APP 112, 991 P.2d 1048, 1055 (quoting Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir.1996).) See also Armstrong v. Davis, 275 F.3d 849, 868 (8th Cir.2001) ("[Where the lawsuit challenges a ... practice or policy that affects all of the putative class members .... individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality."); Newton v. Merrill Lynch, 259 F.3d 154, 183 (3d Cir.2001) (It is not required that "class members share every factual and legal predicate to meet the commonality and typicality standards."). The trial court remains free to maintain the class with respect to particular issues or create subclasses should the need arise. See Okla. Stat. tit 12, § 2028(C)(4) (2001).

II SUPERIORITY

A. Class Action versus Administrative Remedy.

122 DaimlerChrysler argues that a class action is not superior because the National Traffic and Motor Vehicle Safety Act impliedly preempts this warranty and common law tort action. Thus, it urges, the National Highway Traffic Safety Administration (NHTSA) must adjudicate this controversy. The Act, however, expressly provides that compliance with its provisions does not immunize a manufacturer from lability under common law or for warranty claims. 49 U.S.C. § 80108.

123 DaimlerChrysler also argues that, without regard to implied administrative preemption, the administrative remedy of a NHTSA complaint is superior to a class action. The argument must fail.

124 A class action may be maintained only when it is "superior to other available methods for the fair and efficient adjudication of the controversy." Okla. Stat. tit. 12, § 2023(B)(B) (2001) (emphasis added). There is no administrative method of adjudication available to Plaintiffs. The NHTSA has declined to investigate further. See su-pro n. 1. An alternate method for adjudication must be available in order for it to be superior. -

125 The question then becomes whether class action is superior to individual litigation. As the trial court found, the individual claims are not substantial enough to support individual litigation. In addition, the prosecution of separate individual actions would inevitably result in inconsistent results.

B. Logistics of Class Management

126 Contrary to the assertion of Daimler-Chrysler, a "very expensive and time consuming vehicle by vehicle inspection" of each minivan is not required in order to determine whether an owner is a class member. The class consists only of minivans configured for five or more passengers which have not had the air bags deactivated or replaced. A determination of whether a minivan retains an active factory equipped air bag can be made at the time of replacement of the air bag should the Plaintiffs prevail on the issue of product defect.

127 There will be logistical problems in any nationwide class action. The fact that travel for counsel, parties, and witnesses will be necessary would be true no matter where the action was pursued. Plaintiffs have chosen Sequoyah County. None of the logistical problems, however, prevent the trial court from resolving this dispute as a class action. As the trial court observed, the advantage of adjudicating the common issues in a single proceeding far outweighs the logistic demands of class treatment.

III ADEQUATE PROTECTION OF THE INTERESTS OF THE CLASS

128 Section 2023(A)(d) requires that a class action may be maintained only if "(tlhe representative parties will fairly and adequately protect the interests of the class." This requirement is met when the record demonstrates that the class representatives interests do not conflict with those of the class and that the class representatives will fully and effectively represent the interests of the class. See Black Hawk Oil, 969 P.2d at 346 & 347.

129 DaimlerChrysler asserts that "the class representatives and their counsel are inadequate." Yet, it fails to identify any divergence between the interests of the class representatives and those of the class. Rather, DaimlerChrysler suggests that Plaintiffs are inadequate class representatives because they were solicited to merely lend their names to a suit entirely controlled by Plaintiffs' counsel.

130 The record in this matter supports the trial court's finding that no improper solicitation of Plaintiffs occurred as well as its findings that Plaintiffs are adequately informed as to the facts of the case, their responsibilities as class representatives, and their knowledge of the litigation. As class representatives, Plaintiffs are not required to have an attorney's knowledge of the litigation.

T31 The trial court's finding concerning Plaintiffs' counsel is also supported by the record. The trial court did not, as DaimlerChrysler claims, merely parrot unsupported assertions made by Plaintiffs' counsel concerning counsels' experience and success in litigation when they drafted the class certification order for the judge's signature. The trial court based its conclusion that counsel was competent to prosecute the claims on counsels' curriculum vitae and on the fact that some of the counsel had litigated class actions in that court. The trial court did not abuse its discretion in determining that the class representatives and their counsel are adequate to protect the interests of the class.

CONCLUSION

4 32 This Court's review of the decision to certify this matter as a class action reveals no abuse of discretion as to the warranty claims. Common questions of law and fact predominate, class action presents a superior method for adjudicating the common issues, and the representative parties and their counsel are adequate to protect the interests of the class. This Court expresses no opinion as to the merits of any of the remaining claims and defenses asserted.

AFFIRMED IN PART; REVERSED IN PART.

1 33 OPALA, V.C.J., LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ., concur.

34 WATT, C.J., HARGRAVE, J., concur in part; dissent in part.

1 35 WINCHESTER, J., dissents.

      . Plaintiffs' claim for fraudulent misrepresentation is based not on a failure to warn of the dangers of air bags generally. Rather, the claim is based on the failure to warn small adults and children over 12 of the dangers of over aggressive deployment of the air bags and their tendency to deploy at low speed impacts.

      . The trial court's class certification followed the litigation of similar issues in Louisiana and unsuccessful attempts to remove this case to federal court. The decision in In re Air Bag Products Liability Litigation, 7 F.Supp.2d 792 (E.D.La.1998), involved allegations of air bag defects against several automobile manulacturers and dealers. All claims were dismissed or summarily adjudicated in favor of defendants under Louisiana and Texas law. No class certification was involved. Thus, nothing about that decision impacts the issue of class certification presented in this litigation.
      The class certification also followed the refusal of the National Highway Traffic Safety Administration (NHTSA) to further investigate following its determination that vehicles, including 1996 Chrysler minivans, "had rates of air bag deployments per 100 collision claims that are similar to that of many other vehicles." In doing so, NHTSA noted its "need to allocate and prioritize [its] limited resources."

      . Section 2023 provides:
      A. PREREQUISITES TO A CLASS ACTION.
      One or more members of a class may sue or be sued as representative parties on behalf of all only if:
      1. The class is so numerous that joinder of all members is impracticable;
      2. There are questions of law or [act common to the class;

        3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
      4. The representative parties will fairly and adequately protect the interests of the class.
      B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied and in addition:
      1. The prosecution of separate actions by or against individual members of the class would create a risk of:
      a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      b. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole; or
      3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The maiters pertinent to the findings include:
      a. the interest of members of the class in individually controlling the prosecution or defense of separate actions,
      b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
      c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
      d. the difficulties likely to been countered in the management of a class action.
      C. DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED; NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS.
      1. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.
      2. In any class action maintained under paragraph 3 of subsection B of this section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:
      a. the court will exclude him from the class if he so requests by a specified date,
      b. the judgment, whether favorable or not, will include all members who do not request exclusion, and
      c. any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
      Where the class contains more than five hundred (500) members who can be identified through reasonable effort, it shall not be necessary to direct individual notice to more than five hundred (500) members, but the members to whom individual notice is not directed shall be given notice in such manner as the court shall direct, which may include publishing notice in newspapers, magazines, trade journals or other publications, posting it in appropriate places, and taking other steps that are reasonably calculated to bring the notice to the attention of such members, provided that the cost of giving such notice shall be reasonable in view of the amounts that may be recovered by the class members who are being notified. Members to whom individual notice was not directed may request exclusion from the class at any time before the issue of liability is determined, and commencing an individual action before the issue of liability is determined shall be the equivalent of requesting exclusion from the class.
      3. The judgment in an action maintained as a class action under paragraphs 1 or 2 of subsection B of this section, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under paragraph 3 of subsection B of this section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in paragraph 2 of subsection C of this section was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
      4. When appropriate:
      a. an action may be brought or maintained as
      a class action with respect to particular issues, or
      b. a class may be divided into subclasses and each subclass treated as a class. The provisions of this section shall then be construed and applied accordingly.
      D. ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this section applies, the court may make appropriate orders:
      1. Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
      2. Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether, they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
      3. Imposing conditions on the representative parties or on intervenors;
      4. Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; and

        5. Dealing with similar procedural maiters. The orders may be combined with an order under Section 16 of this act and may be altered or amended as may be desirable from time to time.
      E. DISMISSAL OR COMPROMISE. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

      . The Court of Appeals for the Seventh Circuit reversed the decision. See In re Bridgestone/Firestone Inc., 288 F.3d 1012 (7th Cir.2002) cert. den. 537 U.S. 1105, 123 S.Ct. 870, 154 L.Ed.2d 774 (2003). I did so based on its determination that "Indiana is a lex loci delicti state: in all but exceptional cases it applies the law of the place where harm occurred." Id. at 1016. As a result, Indiana's choice-of-law rule selects the 50 states and multiple territories where the buyers live, and not the place of the sellers' headquarters, for these suits." Id. at 1018. Thus, "[blecause these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable." Id. Although the Seventh Circuit rejected the lower court's conclusion as to which choice of law rule Indiana utilizes, the lower court's analysis under a most significant relationship test remains persuasive.

      . This rule applies only in situations where the parties have not chosen the applicable law. The parties have not directed this court to a choice of law provision in their contract.

      . This Court rejects DaimlerChrysler's suggestion that there is something improper or irregular in a trial judge signing an order which has been prepared by the prevailing party.

      . The class certification remains subject to modification and "may be altered or amended before the decision on the merits." Okla. Stat. tit. 12, § 2023(C)(1) (2001). If necessary the class "may be divided into subclasses and each subclass treated as a class." Id. at § 2023(C)(4).

      . § 148. Fraud and Misrepresentation
      (1) When the plaintiff has suffered pecuniary harm on account of his reliance on the defendant's false representations and when the plaintiff's action in reliance took place in the state where the false representations were made and received, the local law of this state determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. (2) When the plaintiff's action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties:
      (a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations,
      (b) the place where the plaintiff received the representations,
      (c) the place where the defendant made the representations,
      (d) the domicil, residence, nationality, place of incorporation and place of business of the par-lies,
      (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and
      ({) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant.