author: Chief Judge HUME.

text:
    Eric STEINER, M.D., Plaintiff-Appellant, v. MINNESOTA LIFE INSURANCE COMPANY, a foreign corporation; Tim Schloesser; and Larry Norlin, Defendants-Appellees.
    No. 01CA1670.
    Colorado Court of Appeals, Div. A.
    Nov. 7, 2002.
    Rehearing Denied Jan. 2, 2003.
    Certiorari Granted May 27, 2003.

      Elzi Pringle & Gurr, Bruce D. Pringle, Denver, Colorado; Salmon, Lampert & Clor, P.C., John G. Salmon, Brian J. Lampert, Englewood, Colorado, for Plaintiff-Appellant.
    Welborn Sullivan Meek & Tooley, P.C., William R. Rapson, Stephen A. Bain, Denver, Colorado, for Defendant-Appellee Minnesota Life Insurance Company.
    Cockrell, Quinn & Creighton, Richard M. Foster, Denver, Colorado, for Defendants-Appellees Tim Schloesser and Larry Norlin.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Chief Judge HUME.

Plaintiff, Eric Steiner, M.D., appeals the judgment dismissing his breach of contract, bad faith, and outrageous conduct claims against defendants, Minnesota Life Insurance Company and its agents, Larry Norlin and Tim Schloesser, and awarding costs in favor of defendants. We affirm.-

Plaintiff, an anesthesiologist, entered into a disability insurance contract with Minnesota Life, through agents Norlin and Schloesser in 1991. In 1998, plaintiff s alcohol and opiate dependence, together with a panic disorder, rendered him unable to work. Plaintiff underwent over two months of inpatient treatment and has subsequently avoided relapse. Minnesota Life paid benefits to plaintiff for nine months of this period of treatment and recovery, but then determined that plaintiff was not permanently disabled from resuming work as an anesthesiologist and ceased payments.

Plaintiff sued, alleging that his drug dependence rendered him permanently disabled from working as an anesthesiologist and that he was entitled to prior accrued and future benefits under the policy and in tort.

During his initial deposition, while being questioned on the severity of his abuse and his means of obtaining opiate anesthetics, plaintiff invoked his Fifth Amendment privilege against self-incrimination. Defendants moved for summary judgment, asserting that the answers to those questions had direct bearing on plaintiffs chances of remaining drug-free if he returned to an environment where such drugs were present. The trial court converted the motion into a motion to compel plaintiffs responses, under threat of dismissal with prejudice.

The trial court found that defendants’ questions were relevant and proper for purposes of discovery. The court also denied plaintiffs request to allow additional expert witnesses to testify as to the relevancy of defendants’ questions. After seeking and receiving a stay of proceedings in the trial court, plaintiff sought writs of prohibition and mandamus from the Colorado Supreme Court, which were ultimately denied.

Shortly before resumption of the deposition, plaintiff moved for a protective order with respect to the deposition answers. At the deposition, plaintiff again refused to answer, prompting a telephone hearing in which the trial court denied the motion for a protective order. Plaintiff then stated that he would again seek relief from the supreme court. Plaintiff did not answer the remaining deposition questions, and the trial court later dismissed the case and awarded costs to defendants. The supreme court eventually denied plaintiffs second petition for writs of prohibition and mandamus.

Plaintiff seeks reversal of the dismissal and the cost awards and contends that: (1) the dismissal violated his Fifth Amendment rights; (2) the trial court erred in dismissing the case while his second petition was pending before the supreme court; and (3) the trial court abused its discretion in awarding costs to defendants. Because we reject these contentions and affirm, we need not consider plaintiffs additional contention concerning limitation of his potential recovery.

I.

Plaintiff first contends that he is being punished for properly asserting his Fifth Amendment privilege against self-incrimination. We conclude that the dismissal was not an abuse of discretion.

The privilege applies to civil proceedings, and the parties here do not dispute that it applies to depositions. See Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212, 215 (1972); People v. Fisher, 657 P.2d 922, 928 (Colo.1983); see also Colo. Const. art. II, § 18.

Plaintiff argued that answering defendants’ deposition questions concerning his abuse of prescription opiates could result in future criminal prosecution, which he seeks to avoid. The trial judge ruled that the questions were relevant and necessary to determine whether plaintiff was disabled from returning to active practice and that because they had not been answered, plaintiffs civil action should be dismissed.

We review such discovery rulings for abuse of discretion. See Keybank v. Mascarenas, 17 P.3d 209, 214-15 (Colo.App.2000).

Here, plaintiff testified that two other anesthesiologists from Denver had undergone the same inpatient treatment for addiction and had since returned to work. Based on that testimony, we conclude that questions related to the depth and means of plaintiffs addiction, as well as his proclivity to steal the easily accessible narcotics he was addicted to, could be relevant and that the trial court’s decision in that regard was not manifestly arbitrary, unreasonable, or unfair. See Keybank, supra, 17 P.3d at 215; see also Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo.1994).

However, whether the dismissal was proper depends in part on whether plaintiffs answers would have been privileged. It is uncontested that plaintiff asserted his privilege against self-incrimination during the discovery process.

Dismissal of a civil action is allowable when a party willfully violates a discovery order. See Nagy v. Dist. Court, 762 P.2d 158, 161 (Colo.1988). In Colorado, however, discovery may be had only on matters that are not subject to privilege. See C.R.C.P. 26(b)(1). Accordingly, our analysis must go beyond that of Nagy and address the issue of plaintiffs privilege.

A.

Defendants argue that plaintiff waived the privilege with the answers that he provided and thus was subject to discovery on the issues that precipitated this appeal. We are not persuaded.

Generally, the Fifth Amendment privilege against self-incrimination is waived once the witness asserting it has come forward with information that incriminates him or her. The witness may not thereafter refuse to disclose the relevant details of the offense about which he or she already has provided incriminating information. See Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 442, 95 L.Ed. 344, 349 (1951).

However, if further disclosure would lead to incrimination for other offenses, the witness is not deemed to have waived the privilege. See In re Seper, 705 F.2d 1499, 1501-02 (9th Cir.1983).

Here, plaintiff already potentially incriminated himself with respect to his use of marijuana, hallucinogens, and cocaine, as well as the illegal use of opiate narcotics. He did not, however, provide testimony that might incriminate him for stealing the drugs from his patients or the hospitals where he worked, or for knowingly receiving stolen drugs from some undisclosed third party. Thus, additional facts related to his admitted use of these drugs were no longer protected by privilege, but the privilege concerning his means of acquiring narcotics had not been waived by prior disclosure.

B.

Nonetheless, plaintiffs refusal to answer the deposition questions directly blocked the discovery relevant to the resolution of this dispute, and dismissal is an appropriate remedy. See Bramble v. Kleindienst, 357 F.Supp. 1028 (D.Colo.1973); see also B.C. Ricketts, Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965 & 2002 Supp.). While plaintiff may not be compelled to answer and to forgo his constitutional privilege against self-incrimination, as a matter of due process, defendants must have a reasonable opportunity to rebut plaintiffs case. See Colo. State Bd. of Med. Exam’rs v. Hoffner, 832 P.2d 1062, 1066 (Colo.App.1992). The basic requirement of due process is fundamental fairness. See Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 307 (Colo.1992)(considering whether a statutory scheme was sufficiently fair). We agree with the trial court’s ruling on this basis.

Thus, typically, a protective order would provide plaintiff with a means to disclose the relevant information without fear of its subsequent use. Plaintiff moved for such a protective order, which the trial court denied. Thereafter, plaintiff sought interlocutory review of that decision from the Colorado Supreme Court. That review was rendered moot by the trial court’s dismissal, and plaintiff now seeks our review of the denial.

Rulings on protective orders are reviewed under an abuse of discretion standard. See Leidholt v. Dist. Court, 619 P.2d 768, 773 (Colo.1980).

In Colorado, a party seeking a protective order must present the subject information to the court for in camera review. See Martinelli v. Dist. Court, 199 Colo. 163, 170, 612 P.2d 1083, 1088-89 (1980)(concern-ing official information privilege).

Here, during the second deposition, plaintiff asked for a ruling on his motion without presenting any such information to the trial court. Citing that lack of presentation, the trial court denied the protective order, and we perceive no abuse of discretion in that decision.

II.

Plaintiff next argues that the trial court erred in dismissing the action while his petition concerning the protective order was pending before the Colorado Supreme Court. We find no error.

When plaintiff first sought interlocutory relief from the supreme court, he properly followed C.A.R. 21(g)(1) and filed a motion to stay the proceedings and continue the trial date, pending the supreme court’s decision. Following denial of the request for a protective order, plaintiff told the trial court that he would not go forward with the deposition and would also challenge that ruling in the supreme court. This time, however, he did not request a stay in the trial court as required by C.A.R. 21(g)(1).

C.A.R. 21(g)(1) provides that:

The filing of a petition under this rule does not stay any proceeding below or the running of any applicable time limit. If the petitioner seeks a temporary stay in connection with the petition pending the court’s determination whether to issue a rule to show cause, a stay ordinarily shall be sought in the first instance from the court or tribunal. If a request for stay below is impracticable or not promptly ruled upon or is denied, the petitioner may file a separate motion for a temporary stay in the Supreme Court supported by accompanying materials justifying the requested stay.

(Emphasis added.)

This rule is clear, and we need not analyze it further. The trial court plainly had jurisdiction for the dismissal while plaintiffs second request for writs was pending.

III.

Finally, plaintiff asserts that the award of costs to defendants imposes an impermissible penalty on his assertion of his Fifth Amendment privilege, and he requests a hearing on the appropriateness of costs. We conclude that plaintiff is not entitled to relief.

Cost awards are within the discretion of the trial court and are reviewed only for abuse of discretion. See Ballow v. PHI-CO Ins. Co., 878 P.2d 672, 684 (Colo.1994).

Here, defendants’ costs do not appear to be out of line with the costs incurred by plaintiff; each party has been assigned a proportional share of costs from the Judicial Arbiter Group; and the trial court certified that more than four witnesses were required to resolve the dispute. See § 13-16-112, C.R.S.2002. We perceive nothing in the record here that indicates the trial court abused its discretion in awarding these costs.

None of these costs rise to the level of an impermissible penalty for asserting Fifth Amendment rights. Cf. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977)(election law that would divest state political party officials of office if privilege asserted is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972)(criminal defendant could not be forced either to testify as first defense witness or otherwise not be allowed to take stand in his own defense); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968)(police officer could not be fired for refusal to waive privilege against self-incrimination in grand jury investigation of police corruption); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967)(impermissible penalty to disbar an attorney who refuses to submit to subpoena duces tecum when information sought is privileged). Here, the costs of discovery were foreseeable, and plaintiff assumed the risk that his claims might not be sustained.

Plaintiff further contends that Minnesota Life filed its revised bill of costs beyond the statutory deadline. However, C.R.C.P. 121 § 1-22(1) also allows the bill to be filed “within such greater time as the court may allow.” See Koontz v. Rosener, 787 P.2d 192, 199 (Colo.App.1989).

Furthermore, we deny plaintiffs request for a hearing with regard to costs, because he did not request such a hearing in the trial court.

The judgment is affirmed.

RULAND and PLANK , JJ., concur.


source: Caselaw Access Project

author: Presiding Officer THOMAS J.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. Lawrence R. HILL, Respondent.
    No. 03PDJ001.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    June 11, 2003.
   Opinion by a Hearing Board consisting of the

Presiding Officer THOMAS J.

OVERTON, and Hearing Board Members DAVID M. HERRERA, and SISTO J. MAZZA, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR A PERIOD OF SIX MONTHS, ALL STAYED PENDING A TWO-YEAR PERIOD OF PROBATION WITH CONDITIONS

A trial in this matter was held on May 13, 2003, before a Hearing Board consisting of Presiding Officer Thomas J. Overton and two Hearing Board Members, David M. Herrera and Sisto J. Mazza, both members of the bar. Gregory G. Sapakoff, Assistant Regulation Counsel, represented the People of the State of Colorado (the “People”). Craig L. Truman represented respondent Lawrence R. Hill, (“Hill”), who was also present.

At the trial, the People’s exhibits 1 and 2, and Hill’s exhibits A, B and C were admitted into evidence. Lawrence Hill testified on his own behalf. Hill confessed to Complainant’s Motion for Judgment on the Pleadings which was approved on February 19, 2003. The essential factual allegations were therefore deemed admitted. The Hearing Board considered the testimony of the witness, the exhibits admitted into evidence, the facts established by the entry of judgment on the pleadings, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Lawrence R. Hill has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court on May 26, 1988, and is registered upon the official records of the Court, attorney registration number 17447. He is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On or about April 23, 2002, Hill pled guilty to a charge of third degree assault in violation of § 18-3-204, 6 C.R.S. (2002) in Jefferson County Court, Case No. 01CR3267. Hill’s plea and conviction stems from an incident of family violence that occurred on or about October 13, 2001. At the time of the incident, Hill lived with his wife, his sixteen-year-old stepson, his wife’s son from a previous marriage, and two younger children (four and six years old at the time) from his current marriage. Since Hill’s marriage, the family had experienced problems with the stepson.

On the date of the incident, Hill had from five to eight mixed drinks and dinner over a four to five hour period at a bar located a considerable distance from Hill’s home.

Upon returning home around midnight, Hill confronted his stepson about a cellular telephone belonging to Hill which his stepson had used. Hill’s stepson told Hill he had given Hill’s cell phone to a friend. Upon hearing that his stepson had given away his telephone, and noting his disrespectful tone of voice, Hill became enraged. A violent altercation initiated by Hill ensued, during which Hill struck his stepson in the face with his fist, causing damage to and bleeding from Hill’s stepson’s nose.

Mrs. Hill called 911 to report the incident and told the 911 operator, “my husband, Larry Hill, is beating up on my son.” While Mrs. Hill was on the telephone with the 911 operator, Hill’s stepson emerged from the house with his face bleeding. During the call, Hill followed his stepson out of the house and again violently attacked him. Police arrived at the scene and took Hill into custody. Hill’s stepson was taken to a hospital, where he was treated for a broken nose. The nose was originally broken in an automobile accident.

As part of his plea and conviction in Case No. 01CR3267, Hill was sentenced to one year of supervised probation, payment of court costs (which have been paid), and continued treatment and counseling for alcohol and anger management issues. Included in the conditions of probation was the requirement that Hill “not use alcohol or use unlawfully any controlled substance or other mood altering drug or substance.” Hill received notice of the conditions of probation on or about April 25, 2002.

Hill was evaluated by two certified addictions counselors and Hill’s pastor. One counselor concluded that Hill exhibited an addiction to alcohol which was confirmed by his unwillingness or inability to refrain from drinking. Included in her recommendations was Hill’s total abstinence from alcohol, given Hill’s denial of alcohol dependence.

Hill saw the other addictions counselor on June 17, 2002, during the period of his probation. Hill stated that “his current (and usual) use of alcohol was ‘6-8 beers a week, mostly on the weekend.’ ” He thus did not fully comply with the conditions of his probation by remaining abstinent from alcohol use. With regard to the court-ordered alcohol treatment and anger management, Hill sought treatment from his pastor who is not licensed in these fields. Hill’s pastor saw Hill on twenty-three occasions over a year’s time, commencing in February 2002.

Following the violent incident, Hill’s stepson went to live with his biological father. Hill and his wife sought therapy, and currently enjoy a more tranquil relationship.

Hill self-reported his conviction to the Office of Attorney Regulation Counsel.

II. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

The Complaint filed in this matter alleges a violation of Colo. RPC 8.4(b)(it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b)(misconduct by an attorney, including any act or omission which violates the criminal laws of the state, shall constitute grounds for discipline). Hill’s plea and conviction in Case No. 01QR3267 is, for purposes of these disciplinary proceedings, conclusive proof of Hill’s commission of the crime of third degree assault. Pursuant to C-R-C.P. 12(c), judgment on the pleadings was entered on all essential factual allegations of the Complaint, including the allegation that Hill violated Colo. RPC 8.4(b) and his conduct constitutes grounds for discipline. See C.R.C.P. 251.20(h)(stating that the term of conviction includes any ultimate finding of fact in a criminal proceeding that an individual is guilty of a crime). The violation of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) is therefore established. See In re Kearns, 991 P.2d 824, 826 (Colo.1999).

III. IMPOSITION OF SANCTION

The Colorado Supreme Court’s decision, In re Hickox, 57 P.3d 403 (Colo.2002), concerned an attorney who pled guilty to disturbing the peace, assault and domestic violence, arising from the attorney’s grabbing the wrist of his estranged wife while escorting her up the basement staircase. The attorney’s conduct violated Colo. RPC 8.4(b), constituting grounds for discipline pursuant to C.R.C.P. 251.5(b). The Court found that suspension was the appropriate sanction, citing ABA Standard for Imposing Lavyyer Sanctions (1991 & Supp.1992), § 5.12, which states that suspension is 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.” As in the present case, the attorney in Hickox pled guilty to third degree assault, a class 1 misdemeanor. The Court further stated:

We have traditionally taken a serious view of misconduct by an attorney involving the infliction of bodily harm on another. In numerous recent decisions, we have considered similar conduct and found it sufficiently serious to warrant suspension. In each case, the length of the suspension depended on the seriousness of the assault and the aggravating and mitigating factors present.

57 P.3d at 405, citing People v. Musick, 960 P.2d 89 (Colo.1998); People v. McGuire, 935 P.2d 22 (Colo.1997); People v. Nelson, 941 P.2d 922 (Colo.1997); People v. Reaves, 943 P.2d 460 (Colo.1997); People v. Shipman, 943 P.2d 458 (Colo.1997), and People v. Knight, 883 P.2d 1055 (Colo.1994).

The Supreme Court concluded that because the attorney was convicted of criminal conduct which “seriously adversely reflects on [his] fitness to practice,” the presumptive form of discipline was suspension, which may be increased or decreased depending on the presence of certain aggravating or mitigating factors.

Given the facts of the present case, under the Supreme Court’s holding in Hickox and authority referred to therein, a period of suspension is warranted for Hill’s assault of his stepson. However, unlike the attorney in Hickox, Hill has had no prior disciplinary record, a mitigating factor pursuant to ABA Standard 9.32(a). The Hearing Board also considered that Hill’s assault of his stepson occurred over two years ago. Since that date, Hill and his wife have attended counseling and the family remains intact. Also, in contrast to Hickox, Hill made full and free disclosure to the Office of Attorney Regulation Counsel and had a cooperative attitude toward the proceedings, see ABA Standard 9.32(e). Importantly, Hill expressed genuine remorse for his conduct in assaulting his stepson, considered a mitigating factor pursuant to ABA Standard 9.32(l). Hill’s completion of other penalties or sanctions are not considered pursuant to ABA Standard 9.32(k) insofar as Hill did not abstain from alcohol consumption during the one year period of probation nor did Hill seek out or complete formal anger management courses.

In aggravation, ABA Standard 9.22(g) provides that the refusal to acknowledge wrongful nature of conduct may be considered as an aggravating factor. Although Hill freely acknowledges that assaulting his stepson was wrong, he demonstrated complete denial of any alcohol problem. The evidence raises a concern that Hill suffers from alcohol dependence. The use of alcohol clearly caused Hill to act with poor judgment on the night of the incident: he drove a considerable distance from the bar to his home and then initiated the conflict with his stepson. Although considered a single instance of assault, Hill, after first striking his stepson, returned a few minutes later and again assaulted his son. Hill’s own testimony evidenced an unwillingness to confront any question of alcohol abuse. When confronted with several opinions that such a problem exists, Hill dismissed it as being a result of misperception or misunderstanding. Hill has, since the incident giving rise to this proceeding, worked to keep his family together, and has maintained his law practice. He has not established, however, that he has addressed an ongoing addiction to alcohol use.

The Hearing Board is charged with the task of protecting the public. Given the mitigating and aggravating factors set forth above, a period of suspension, all stayed pending the successful completion of a two-year period or probation is warranted with conditions as set forth below.

TV. ORDER

It is therefore ORDERED:

1. Lawrence R. Hill is suspended from the practice of law for a period of six months, the full period of suspension stayed pending the successful completion of a two-year period of probation, subject to the following conditions:
A. Hill shall attend and successfully pass the one-day Ethics School sponsored by the Office of Attorney Regulation Counsel within one year of the date of this Order and pay all costs associated therewith. The respondent shall register and pay the costs of Ethics School within thirty (30) days of the date of this Order.
B. Hill Shall Not En<Age In Any Conduct Which Results In The Imposition Of Any FORM Of Discipline As Provided In C.R.C.P. 251.6 Or C.R.C.P. 251.7, Or An Order Of Immediate Suspension As Provided In C.R.C.P. 251.8 Or 251.8.5 During A Period Of Two Years From The Date Of This Order. Hill Shall Comply With All Local, State And Federal Criminal Laws.
C. Hill shall abstain from the use of alcohol or any controlled substance during the two-year period of probation.
D. Hill shall contact Exempla West Pines, or such other facility approved by the Division of Alcohol and Drug Abuse, and schedule an evaluation regarding his alcohol use. Based on the evaluation, Hill shall complete the course of treatment recommended by West Pines or other treatment facility. In the event the treatment ends prior to the two-year period of probation, Hill shall advise the Office of Attorney Regulation Counsel within thirty (30) days of his successful completion, and provide a Certificate of Completion signed by an appropriate official of the treatment facility to the Office of Attorney Regulation Counsel.
E. Hill shall file a monthly Report with the Office of Attorney Regulation Counsel regarding the status of his compliance with the conditions set forth herein.
F. Hill shall submit to random breath analysis or urine analysis tests on a monthly basis. The results of the testing shall be provided directly to Hill and to the Office of Attorney Regulation Counsel by the testing facility. Hill shall specifically advise the Office of Attorney Regulation Counsel of the outcome of the monthly test in his monthly report.
G. Hill shall pay for and successfully complete at least an eight hour course in anger management from a Certified Treatment Provider through the Jefferson County Probation Office, which provides a list of the available programs. Hill shall provide a Certificate of .Completion to the Office of Attorney Regulation Counsel within thirty (30) days of the completion of the program.
2.It is anticipated that this probation -will end in June 2005. Hill has the obligation to comply with all requirements of C.R.C.P. 251.7, including the timely filing of an affidavit. Hill acknowledges that he carries the burden of establishing that all conditions of probation have been timely met in order to avoid imposition of the remainder of his six month suspension.
3. Hill’s violation of any condition of probation as set forth herein may result in the imposition of the full six month period of suspension in accordance with C.R.C.P. 251.7(e).
4. Pursuant to C.R.C.P. 251.32, Hill shall pay the costs and administrative costs in conjunction with this matter. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; Hill shall have ten (10) days thereafter to file a Response.

      . The elements contained in ABA Standard 5.12 include crimes involving fraud or misrepresentation, theft, distribution of controlled substances, or murder, or "any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation, that seriously adversely reflects on the lawyer's fitness to practice.”

      . In Hickox, the attorney’s failing to report his conviction constituted a violation of Colo. RPC 3.4(c) and C.R.C.P. 251.20(b).


author:
WATT, Viee Chief Justice. WINCHESTER, J.,
      OPALA, J.,

text:
    2002 OK 99
    C & L ENTERPRISES, INC., Plaintiff-Appellee, v. CITIZEN BAND POTAWATOMI TRIBE OF OKLAHOMA, Defendant-Appellant.
    No. 86,568.
    Supreme Court of Oklahoma.
    Dec. 17, 2002.
    Rehearing Denied April 21, 2008.

      Citizen Band Potawatomi Tribe, Appears Pro se.
    John Mashburn, James Carlton Jr., Gar-vin, Agee, Carlton, & Mashburn, Oklahoma City, OK, for Plaintiff-Appellee.
   OPINION

WATT, Viee Chief Justice.

T1 This appeal arises out of a roofing contract entered into in 1998 between plaintiff contractor, C & L Enterprises, Inc., and defendant, Citizen Potawatomi Tribe of Oklahoma. The roofing contract provided that any dispute between the parties would be resolved by arbitration. The contract also provided that construction was not to begin until "notice to proceed" was issued by the Tribe. The Tribe never issued a notice to proceed but, instead, re-let the contract to a new bidder using different specifications. In 1995, the contractor commenced the arbitration process based on its claim that the Tribe had breached the contract. The Tribe declined to participate in arbitration on the merits but did write letters to the American Arbitration Association, which was handling the arbitration. The Tribe claimed that the Tribe was not subject to the arbitration provision of the roofing contract because it was a sovereign Indian tribe and, therefore, immune from suit.

1 2 On June 30, 1995, the arbitrator awarded the contractor $25,400.00 in damages. The arbitrator also awarded the contractor attorneys' fees of $2,230.00, although the contract did not provide for such fees and the arbitrator's award did not explain why the arbitrator had awarded attorneys' fees.

3 The contractor brought suit in the District Court of Oklahoma County to confirm the arbitrator's award on August 7, 1995. The Tribe moved to dismiss the contractor's suit on the same grounds it had presented during the arbitration proceeding, tribal immunity, but the trial court denied its motion. Onee again, the Tribe declined to participate on the merits and the trial court entered judgment confirming the arbitrator's award, plus "a reasonable attorneys' fee to be determined upon the application of plaintiff." The trial court's judgment did not state its grounds for ordering attorneys' fees.

T4 The Tribe appealed the district court's judgment confirming the arbitration award, including the attorneys' fee award. The opinion of the Court of Civil Appeals before us today is the third opinion to be promulgated in this matter, although no mandate has ever been sent to the trial court. The first Court of Civil Appeals opinion, filed November 5, 1996, affirmed the trial court. That opinion was vacated and the matter remanded by the United States Supreme Court for further consideration of the issue of the Tribe's immunity by judgment dated June 1, 1998. We had granted the contractor's motion for appeal related attorneys' fees on January 27, 1997. Nevertheless, neither our order nor the Court of Civil Appeals' opinion ever became final, as we granted the Tribe's motion to stay the effectiveness of the mandate after the United States Supreme Court granted certiorari. We withdrew the mandate to the first Court of Civil Appeals opinion after the United States Supreme Court reversed that opinion.

T5 The second Court of Civil Appeals opinion, dated February 8, 2000, reversed the trial court judgment and held for the Tribe on the ground that the Tribe had not waived its sovereign immunity from suit,. 'We denied certiorari and issued a mandate to the second Court of Civil Appeals opinion, which, had it become final, would have reversed the trial court judgment and held for the Tribe on all counts, including the attorneys' fees issue. We stayed the effectiveness of our mandate to the second Court of Civil Appeals opinion, however, because the United States Supreme Court again granted certiorari. On April 30, 2001, the United States Supreme Court reversed the judgment and remanded the matter, based on its finding that the Tribe had waived its sovereign immunity when the Tribe consented to arbitration under the terms of its contract with the contractor. We withdrew our mandate to the second Court of Civil Appeals opinion after the United States Supreme Court reversed the judgment.

T6 After the second reversal by the United States Supreme Court, the Court of Civil Appeals issued a third opinion, which affirmed the trial court's judgment, including attorneys' fees. We granted certiorari to the third Court of Civil Appeals opinion on April 29, 2002. As indicated, the mandates to the two earlier Court of Civil Appeals opinions were both withdrawn. Thus, neither opinion became final.

T7 The Tribe complained about the attorneys' fee award in its opening appellate brief, filed in May 1996, but it did not urge the inapplicability of 12 O.S. § 986. For the reasons set out in this opinion, we hold that the record reflects that the contractor is not entitled to attorneys' fees under § 986, or on any other basis, because the contractor did not furnish "labor or materials" for which it had not been paid and the contract did not provide for attorneys' fees. The contractor moved for attorneys' fees on November 19, 2001, following the Court of Civil Appeals' third opinion. On December 4, 2001 the Tribe filed a response in which it did urge that the contractor's failure to have actually furnished labor or materials for which it had not been paid made § 936 inapplicable.

ISSUES

T8 Two issues are presented here:

I.
Does the Tribe have a due process right to have this matter remanded to the trial court to allow the Tribe to present evidence in support of its claim that a "valid contract" did not exist between the parties?
IL
Has the Tribe lost its right to claim that the contractor is not entitled to attorneys' fees under § 986 because the Tribe is prohibited from doing so under the "law of the case" doctrine?

We answer "no" to both Issues. -

DISCUSSION

I.

19 The Tribe claims that the arbitration award was entered by "default." Thus, argues the Tribe, it is entitled to have the matter remanded to the trial court for the purpose of allowing it to present evidence. We disagree, because neither the arbitration award nor the district court proceeding in which the arbitration award was confirmed was entered by default. The Tribe responded in writing to the contractor's demand for arbitration and asserted two defenses, the same defenses they raise here: (1) that the contract was not valid because it had not been approved pursuant to 25 U.S.C. § 81; and (2) that the contract was not binding on the Tribe because it had not been signed "with appropriate authorization under the Potawatomi Constitution." The Tribe, however, made a considered decision not to participate in the trial on the merits either in the arbitration or in the confirmation proceeding. Further, the record establishes that the contractor was required by the arbitrator to establish its claim through the submission of evidence, as mandated by the arbitration rules, and did so. Thus, it is clear that the Tribe did not have judgment entered against it "by default."

T 10 The Tribe claims that the contractor was improperly allowed to rely on inadequate proof in support of the contractor's contention that there was no "valid contract." In support of this claim the Tribe claims that it was denied its right to due process and relies on Eagle-Picher Mining & Smelting Co. v. Layton, 1938 OK 222, 77 P.2d 1137; Clark v. Board of Education, 2001 OK 56 T 8, 32 P.3d 851; Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200; Cate v. Archon Oil Company, Inc., 1985 OK 15, 695 P.2d 1352; Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910; Burroughs v. Bob Martin Corporation, 1975 OK 80, 586 P.2d 339; and Sandusky v. Graham and Associates, Inc., 1988 OK CIV APP 14, 766 P.2d 370.

{11 The foregoing cases do not support the Tribe's claim that it was deprived of its right to due process, as none of the cited cases involved a procedural situation at all similar to that presented here. For example, in Eagle-Picher this Court reversed a jury verdict because of an erroneous instruction that placed the burden of proof on the defendant rather than the plaintiff, Further, the defendant fully participated in the trial. Thus, we fail to see the relevance of Hagle-Picher to this appeal.

112 Similarly, Clark Shamblin, Cate, Mathews, Shaffer, Burroughs, and Sandusky fail to support the Tribe's position. In Clark, we reversed the trial court for having failed to give the plaintiff an opportunity to have her motion to disqualify the trial judge heard and decided. In Shamblin, there was no hearing only because the trial court granted summary judgment, not because a party declined to participate. In Cate, we reversed an order confirming a sheriff's sale of an oil and gas lease because the only notice given to the owner of the lease had been by publication rather than by mail. In Mathews, the U.S. Supreme Court held that a recipient of Social Security disability benefits, whose benefits had been terminated, had no constitutional right to a hearing as a prerequisite to the termination of his benefits. In Shaffer, the trial court's judgment was reversed because it dismissed plaintiff's petition, rather than treating it as a motion to compel arbitration. In Burroughs, a trial court order setting aside default judgment on the ground that defendant had been prevented from appearing and defending due to "unavoidable casualty and misfortune" was affirmed. Finally, in Sandusky, the court reversed a summary judgment, which the trial court had granted after holding a hearing, although the appellant had not been given notice of the hearing.

T 13 It is clear that none of the foregoing cases involved a situation similar to the pivotal issue here: whether the decision of the Tribe not to participate on the merits nevertheless deprived it its right to present a defense. Because the Tribe was given a right to present evidence both before the arbitrator and in the trial court but voluntarily declined to do so, we hold that neither the arbitrator's award nor the trial court's judgment confirming the award can be said to have been entered by "default."

114 We are buttressed in our conclusion because the Tribe has not convincingly demonstrated that the contract was invalid. The Tribe argues generally that the contractor's petition created an "ambiguity" as to whether the contract with the Tribe was valid under federal law and whether the Tribe officials who signed it had "apparent authority" to do so. We find this argument unconvincing for two reasons: First, the Tribe does not dispute either the terms of the contract or that Tribe officials executed it. Hence, the contractor's proof of the contract made a prima facie case that the contract was valid. Second, the Tribe has not called to our attention any specific facts, which, even if it was given the opportunity to prove them, would relieve it of liability under the contract's terms.

15 The Tribe voluntarily declined to present evidence in its defense either before the arbitrator or in the trial court. Further, the Tribe has not convincingly demonstrated that, even if it were allowed to present proof of the invalidity of the contract, it would be entitled to prevail on the issue. For these reasons we hold that the Tribe has no right, at this late date, to present evidence disputing the validity of the contract.

IL

116 The Tribe claims that it should be relieved of the obligation to pay the contractor's attorneys' fees because such fees are not authorized under 12 0.8.2001 § 936. We agree. It is undisputed that the contractor furnished neither labor nor services because of the Tribe's repudiation of the contract. In Russell v. Flanagan, 1975 OK 173, 544 P.2d 510, we held that § 936 authorizes attorneys' fees to the prevailing party in a suit on a contract for labor or services only where the plaintiff actually performed labor or furnished services. We have followed Russell in many cases. See, for example, Ferrell Construction Co., Inc. v. Russell Creek Coal Co., 1982 OK 24, 645 P.2d 1005; Kay v. Venesuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, and the additional cases cited for the proposition in Kay.

17 In its answer to the contractor's petition for certiorari, the contractor does not resist the Tribe's argument that § 986 does not authorize the award of attorneys' fees where, as here, the prevailing party performed no labor or services. Instead, the contractor urges us to ignore the inapplicability of § 986 because the Tribe failed to raise the issue in the trial court, or on appeal until after the third Court of Civil Appeals opinion was filed. Contractor claims that the affirmation of the attorneys' fee award in the first Court of Civil Appeals opinion and our order granting appeal related attorneys' fees bars the Tribe from asserting that such fees are not authorized under § 986 under the "law of the case" doctrine. We disagree.

1 18 The contractor relies on Morrow Development Corp. v. American Bank and Trust Co., 1994 OK 26, 875 P.2d 411 for the proposition that the "law of the case" doctrine bars the Tribe from relying on the inapplicability of § 986. In Morrow the plaintiffs failed to appeal from a jury's resolution of a disputed fact issue, that plaintiffs had entered into a valid contract for a deed in lieu of foreclosure with defendant bank. We held that plaintiffs' failure to appeal on this score barred them, under the "law of the case" doctrine, from asserting a right to tort damages against the bank. We.so held because the law bars any actions brought against a party to enforce its rights under a valid settlement contract.

119 Here, in contrast to Morrow, the undisputed facts show that the contractor was not entitled to the relief the trial court granted it, an attorneys' fee under § 986. Nevertheless, the contractor urges that the Tribe should have no right to defend against the contractor's § 986 attorneys' fee claim, although the contractor is clearly not entitled to such a fee under applicable law. Further, the Tribe did resist the contractor's attorneys' fee claim (although not on the ground that § 936 did not apply) and the Court of Civil Appeals' opinions and this Court's orders awarding the contractor attorneys' fees mever became final. Because of the lack of finality of the opinions and the orders the contractor relies on, the "law of the case" doctrine does not apply. Not until a final mandate stemming from appellate opinion and orders is issued and that mandate is spread of record does the "law of the case" apply. See Pyle v. Pennington Grocery Co., 1940 OK 176 10, 101 P.2d 847, in which the syllabus by the Court provided:

Where a cause has been presented to the trial court and the issues therein determined, and an appeal has been prosecuted to the Supreme Court and the mandate issued determining the controversy, it is the duty of the trial court to spread the mandate of record. When the mandate has been spread of record in accordance with the directions of the opinion, the law on appeal becomes the law of the case in all subsequent stages, and where the opinion has fully determined all of the issues presented in the trial of the cause and judgment has been entered in accordance with the opinion, there is nothing further to litigate, and the appeal from the order spreading the mandate of record will be dismissed.

[Emphasis added.]

T20 Even in cases in which a final mandate has issued and been spread of record, we have recognized that the law of the case doctrine may not be applied if,

. the Court is satisfied that gross or manifest injustice has been done, or that the mischief to be cured far outweighs any injury that may be done by overruling the prior opinion.

Cavett v. Peterson, 1984 OK 59 ¶ 14, 688 P.2d 52, quoting with approval, Severson v. Roberts, 1946 OK 94 ¶ 6, 168 P.2d 615. We hold that this is such a case. As discussed above, our jurisprudence stands for the proposition that attorneys' fees are not allowable under 12 0.8. § 936 where, as here, no labor or materials have been furnished under a contract for labor or materials.

121 We conclude that to use the law of the case doctrine to impose attorneys' fees on the Tribe here, where they are clearly not authorized by law, would perpetrate a "gross or manifest injustice." Cavett v. Peterson, 1984 OK 59 at ¶ 14, 688 P.2d 52. We are buttressed in our conclusion by the fact that the attorneys' fee issue was an adjunct to the bitterly fought sovereign immunity issue, which has only now been finally decided. The contractor has demonstrated no prejudice resulting from the Tribe's failure to properly frame its defense to the attorneys' fee issue at an earlier time. Attorneys' fees follow only from a final judgment and the judgment upon which the contractor relies to support attorneys' fees is not yet final. Thus, only now are attorneys' fees the pivotal issue in the case.

CONCLUSION

1 22 The Tribe voluntarily declined to present evidence in its defense on the merits of its liability under the construction contract, either before the arbitrator or in the trial court. The Tribe has not convincingly demonstrated that, even if it were allowed to present proof of the invalidity of the contract, it would be entitled to prevail on the issue. Thus, the Tribe has no right, at this late date, to present evidence disputing the validity of the contract.

$23 The "law of the case" doctrine is inapplicable here, as there was never a final enforceable judgment spread of record below, as evidenced by a mandate from this Court. Further, Oklahoma law clearly prohibits an award of attorneys' fees under 12 0.8.2001 § 936 for nonpayment under a contract for labor or services where, as here, no labor or services were actually furnished under the contract. The contractor has shown no prejudice arising from the Tribe's failure to raise its § 936 defense at an earlier time. Under the cireumstances, to allow the contractor § 936 attorneys' fees would do "gross or manifest injustice" to the Tribe's rights.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.

HARGRAVE, C.J., HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ., concur.

WINCHESTER, J., concurs in Part I; dissents from Part IL.

OPALA, J., dissents.

WINCHESTER, J.,

dissenting.

¶ 1 I dissent insofar as the majority reverses the trial court's award of an attorney fee. No contemporaneous objection was made in the trial court, and the error was not preserved for appellate review. Missouri-Kansas-Texas Railroad Co. v. Callison, 1963 OK 145, 383 P.2d 696.

OPALA, J.,

dissenting.

T1 The court today (a) demies the Citizen Band Potawatomi Tribe of Oklahoma (Tribe) the opportunity for a postremand attack upon the validity of its arbitration contract with C & L Enterprises (contractor) and (b) remands the cause for an inquiry into the Tribe's certiorari challenge to the counsel-fee award.

T2 I cannot accede to the court's pronouncement. The sine qua non predicate for the relief the Tribe seeks on certiorari is a compulsory district-court counterclaim (to the contractor's demand for the arbitration award's confirmation) for statutory relief from the arbitrator's decision. That relief, which was available, is described as (1) vacation, (2) modification and (8) correction. Because the Tribe at nisi prius attacked neither the arbitration contract nor the validity of the process leading to the arbitral award, the trial judge correctly concluded as a matter of law that (a) a confirmation judgment on the arbitration award was the contractor's due and (b) no legal impediment stood posed to a contract-based assessment against the Tribe of an attorney's fee for legal services rendered for the contractor in the district court. I would hence affirm the trial court's judgment confirming the arbitration award (as well as the counsel-fee component of that adjudication). But I would (1) reverse the district court's postjudgment counsel-fee award (entered upon the Tribe's default for want of appearance and for lack of any responsive pleading) for legal services rendered before that court because that reversal is mandated by nis? prius failure to hold an evidentiary hearing to inquire (a) into the nexus, if any there was, between services rendered for the contractor in other cases and their legal necessity to secure the trial court's confirmation judgment and (b) into the nature and value of the services and (2) remand the cause solely for re-examination of the quantum to be awarded against the Tribe for the reasonable value of legal services (in this and other cases) necessary to secure the confirmation judgment.

I

THE ANATOMY OF LITIGATION

T3 The contractor obtained an arbitration award against the Tribe. One of this award's components is a counsel fee to the victorious party. The contractor then brought a district-court suit for confirmation judgment upon the arbitration decision. The sole challenge to the contractor's confirmation quest was the Tribe's dismissal motion rested on its claim to federal-law immunity from civil liability. The district court confirmed the entire arbitration award. In postjudgment proceedings the court assessed a counsel fee in favor of the contractor for its legal services incident to confirmation. The Tribe appealed from both (1) the confirmation judgment and (2) the postjudgment counsel-fee award (for district-court services). Earlier in this litigation the U.S. Supreme Court had vacated two Court of Civil Appeals' (COCA) opinions in this disputed case. Its last pronouncement holds that the Tribe did indeed waive its governmental immunity by entering into an arbitration contract. COCA's (third) opinion now on review affirmed the trial court's confirmation judgment in its entirety as well as the attorney's fee assessed by the district court. Certiorari was granted on the Tribe's petition.

II

THE SINE QUA NON PREREQUISITE FOR ANY RELIEF FROM THE ARBITRATION AWARD AND FROM ITS ATTORNEY'S-FEE COMPONENT IS BY COMPULSORY COUNTERCLAIM IN THE DISTRICT COURT FOR A STATUTORY REMEDY OF MODIFICATION, CORRECTION OR VACATION OF THE ARBI-TRAL DECISION

T4 The trial court's authority to review an arbitral award is strictly cireumseribed by

the terms of the Oklahoma Uniform Arbitration Act. Its terms authorize judicial vacation, modification or correction of an arbitration decision upon a claim (or compulsory counterclaim) in the district court. In the absence of a timely sine qua non plea for relief by the Tribe, the plain statutory language inexorably commands that the court confirm the award.

The Arbitrator's Award and Allowance of Counsel Fee

15 A counterclaim to vacate, modify or correct the award (or the award's counsel-fee component) was the only authorized pleading by which the Tribe could avoid the contractor's plea for the confirmation judgment and the nisi prius counsel-fee award for district court-related legal services. The Tribe forever lost its opportunity for the relief it now seeks on certiorari by not pressing below a statutory counterclaim. That claim is compulsory and it is now much too late to press it in the course of corrective proceedings on review.

The Award of Additional Counsel Fee For Services in the District Court

T 6 The Tribe's failure to attack the validity of the arbitration award's counsel-fee component required the trial judge's conclusion-as a matter of law-that the arbitration contract's terms were sufficiently broad to include, at the confirmation stage, a further allowance for services in the district, court proceedings. In the absence of the Tribe's sine gua non counterclaim the trial judge could correctly conclude that the arbitration contract posed no legal impediment either to the confirmation judgment or to a further assessment of a counsel-fee award for legal services in the district court.

III

THIS CAUSE SHOULD BE REMANDED FOR RE-EXAMINATION OF THE QUANTUM OF COUNSEL FEE TO BE AWARDED FOR SERVICES PERFORMED IN THE DISTRICT COURT

17 The Tribe's appellate and certiorari briefs argue that the trial court erred in its counsel-fee assessment of the services' value for the district-court work. According to the Tribe, a major portion of the claimed fee is for services in (state and federal) litigation conducted dehors this case, including one in which a counsel-fee quest was denied. The Tribe also urges that no proof was adduced for the quantum of the trial court's post-judgment counsel-fee allowance.

18 The counsel-fee award for services rendered in the district court was entered upon default. The Tribe neither responded to the contractor's fee quest nor appeared at the postjudgment hearing. There is no recitation in the postjudgment order of an evi-dentiary hearing and of adduced proof showing that counsel's appearance in the other cases (for which a fee also was sought to be awarded) was absolutely necessary to protect the contractor's confirmation of the arbitration award here in contest. The contractor's district-court application for a counsel fee appears to be supported solely by an attachment that details the attorney's time sheets. It facially demonstrates that an appreciable part of legal services to be compensated was rendered dehkors the confirmation case.

T9 One's quest for counsel-fee allowance must be rested upon and supported by evidence tendered in a hearing in which the facts and computation methods upon which the trial court is to rest its determination stand unfolded with a high degree of specificity. Because the counsel-fee award in contest here was entered upon the Tribe's default and there is no record trail of any nexus shown between the services performed in other cases and their legal necessity for securing the arbitral award's confirmation, I would reverse the district court's post-judgment counsel-fee award and remand the cause for re-examination of the quantum of counsel fee to be awarded for services that relate to the district-court confirmation action.

IV

SUMMARY

10 The Tribe failed to demonstrate that at nisi prius it invoked the sine qua non predicate for the principal relief it seeks on certiorari. The plain language of the Oklahoma Uniform Arbitration Act must control the resolution of the main issue tendered for certiorari review. - Judicial review of an arbi-tral award tendered for confirmation is statutorily authorized only when the aggrieved party brings in the district court a compulsory counterclaim (to the confirmation quest), pleading that the arbitrator's decision be vacated, modified or corrected. The confirmation defendant's timely counterclaim is an indispensable prerequisite for invoking judicial power to grant relief from an arbitration decision. By its failure to bring a timely district-court counterclaim, the Tribe lost its opportunity to mount an attack on any terms of the arbitration award.

I would affirm the confirmation judgment (as well as the counsel-fee component of that adjudication) and reverse the district court's postjudgment counsel-fee award (entered upon the Tribe's default) for failure to conduct an evidentiary hearing; I would remand the cause solely for re-examination of the quantum to be awarded against the Tribe as the reasonable value of the contractor's legal services necessary to secure the arbitration award's confirmation.

      . Title 12 0.$.2001 § 936 provides:
      In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject to the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

      . It is undisputed that the contractor did no work under the terms of the roofing contract. The contractor claims, however, (without citation of supporting authority) that it should be relieved of the application of the rule that attorneys' fees are not awardable under § 936 because it had expended labor and expense in preparation for commencing the contract. We find the contractor's argument on this score unconvincing, as the labor and expenses the contractor incurred in preparing to execute the contract were expended for the contractor's benefit and did not directly benefit the Tribe. These preliminary expenses were clearly not compensable under the contract and so do not create a right to attorneys' fees under that contract.

      . See the Oklahoma Uniform Arbitration Act, 15 O.S.2001 §§ 809, 811, 812, 813, infra note 4.

      . The Court of Civil Appeals granted the contractor's motion for appeal-related counsel fee and costs. Since the cause must be remanded for reassessment of the counsel-fee quantum due for services in the district court, I would vacate that COCA order and defer its consideration.

      . 15 0.S$.Supp.2001 § 801 et seq. When a contract contains an agreement to settle disputes by arbitration, the trial court's power to review the arbitration award is limited to that provided by the terms of the Oklahoma Arbitration Act. For a similar statutory circumscription in other states see Johns Const. Co., Inc. v. Unified Sch. Dist. No. 210, 233 Kan. 527, 664 P.2d 821, 822 (1983) (the Kansas Uniform Arbitration Act governs the district court's scope of review in an arbitration award confirmation proceeding); Carolina Virginia Fashion Exhibitors, Inc. v. Gunter, 41 N.C.App. 407, 255 $.E.2d 414, 418 (1979) (district-court review of an arbitration award is limited to the specific statutory grounds advanced); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174, 177 (1996) (judicial review of an arbitration award is limited to vacation upon statutory grounds); Barnstead v. Ridder, 39 Mass.App.Ct. 934, 659 N.E.2d 753, 756 (1996) ("al matter submitted to arbitration is subject to a very narrow scope of review").

      . The terms of 15 0.$.2001 §§ 809 and 811(E) provide: "Upon application of a party to the agreement, the court shall confirm an award, unless within the time limits imposed herein grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 12 and 13 of this act." (emphasis added).
      The terms of 15 0.8.2001 § 812 prescribe the grounds upon which an arbitration award may be vacated. The terms of subsection § 812(E) provide: "If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award." (emphasis added). . The terms of 15 0.$.2001 § 813 prescribe th grounds upon which an arbitration award may be modified or corrected. The terms of subsection § 813(D) provide: "Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements, may be awarded by the court." (emphasis added).

      . Failure to plead a compulsory counterclaim prevents a party from bringing a later action on that claim. Oklahoma Gas & Elec. Co. v. District Court, Fifteenth Judicial Dist., Cherokee County, 1989 OK 158, 110, 784 P.2d 61, 64. The Committee Comments to Oklahoma's compulsory counterclaim statute, 12 O.S.Supp.2001 § 2013, recognize this general rule. Section 2013(A) specifies two predicates which define a compulsory counterclaim: (1) a "claim" and (2) the claim must arise out of the "same transaction or occurrence." - The pertinent provisions of § 2013(A) are:
      A. COMPULSORY COUNTERCLAIMS. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. ...

      . The nisi prius postjudgment order indicates that at the hearing on the counsel-fee quest the trial judge considered the "statements" and time records of the contractor's counsel as well as its applications and the expenses incurred. The trial judge determined that the amount of counsel fee requested by the contractor ($10,545) was reasonable.

      . Payne v. DeWitt, 1999 OK 93, ¶ 18, 995 P.2d 1088, 1096; State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 120, 598 P.2d 659, 663; Oliver's Sports Center, Inc. v. Nat'l Standard Ins. Co., 1980 OK 120, ¶ 8, 615 P.2d 291, 295. A counsel-fee hearing upon defendant's default is to be treated as akin to that which is required for a default judgment's entry in an action for recovery of damages (12 0.$.2001 § 688). The provisions of § 688 call for an evidentiary hearing on the quantum to be awarded against the defaulting litigant. Payne, supra, at I 12, at 1194-1195. For the adequacy of advance notice sufficient as a legal prerequisite for securing a default judgment's entry, see Horowitz v. Alliance Home Health, Inc., 2001 OK 45, ¶ 10, 32 P.3d 825, 828.

      . Payne, supra note at 7, at ¶ 18, at 1096; State ex rel. Burk, supra note 7 at ¶ 22, at 663. Burk requires lawyers "to present to the trial court detailed time records showing the work performed and offer evidence as to the reasonable value for the services performed for different types of legal work." Id at 120, at 663 (emphasis added).

      . Allowing the Tribe to wage a postremand contest over the legal underpinnings of the district court's fee assessment, as the court does today, would inevitably lead to undermining the arbitration award's contract-based attorney's-fee component and thus sanction an attack on the latter award without a timely counterclaim.


author: HARGRAVE, J.

text:
    2003 OK 31
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Earl W. ARNOLD, Respondent.
    No. SCBD 4805.
    Supreme Court of Oklahoma.
    March 18, 2003.
    Rehearing Denied June 30, 2003.

      Dan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    William F. Smith, Gladd, Smith, Harris & Rounds, PA., Tulsa, OK, for Respondent.
   HARGRAVE, J.

1 This disciplinary proceeding is brought under Rule 6 of the Rules Governing Disciplinary Procedure, 5 O.S. ch. 1, app. 1-A (Supp.1999). The Respondent Earl W. Arnold is a member of the Oklahoma Bar Association, with an official roster address of: Earl W. Arnold, OBA #8335, 717 South Houston, Suite 302, Tulsa, Oklahoma 74127. Mr. Arnold has asked for oral argument before this Court. The motion for oral argument is denied.

T2 The Bar charged Respondent with numerous violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 0.8. Ch. 1, App. 3-A (Supp.1999), stemming from two grievances: one filed by Pat West, who claimed that Respondent failed to pay her $12,500.00 of a judgment debt that he had collected on her behalf, and the other filed by 87-year-old Everett Davenport claiming that Respondent refused to provide an accounting for and refused to return more than $290,000.00 entrusted to him by Mr. Davenport and his wife, Carrie.

T3 The facts were highly contested in the Davenport matter and the Respondent argues that the charges have not been proved by clear and convincing evidence. A great deal of controversial testimony was introduced regarding whether or not the Respondent properly created and maintained trust accounts at Charles Schwab investment company for the Davenports, and concerning the creation and execution of an "Affidavit of Conveyances" by which Mr. Davenport was purported to give $200,000.00 to the Respondent as a gift. However, we need not decide those issues in the present matter because the Bar proved by clear and convincing evidence that the Respondent converted monies belonging to Pat West and the Davenports.

I. THE PAT CUMMINGS WEST COMPLAINT

[ 4 In late 1989 or early 1990, the Respondent received a check for payment of a judgment in the amount of $25,000.00 awarded to Ms. Pat West. Respondent claimed an attorney's lien in the amount of $12,500.00, and owed $12,500.00 to Ms. West. The Respondent deposited Ms. West's $12,500.00 into his purported attorney trust account at Bank of Oklahoma (BOK), styled: Earl W. Arnold, Trust, Account No. 424707025.

T5 Respondent wrote a $12,500.00 check from his BOK account to Pat West on January 24, 1990. Ms. West received the check six months later and learned that the bank would not honor the check because it was stale. In 1994, Ms. West filed a grievance with the Oklahoma Bar Association. Respondent represented to the Bar's investigator that the $12,500.00 owed to Ms. West was still in his BOK Trust Account and had remained there since its initial placement in that account. In support of this claim, Respondent furnished a bank statement showing the balance in the BOK account on March 1, 1995 to be in excess of the amount claimed by Ms. West.

T6 Respondent also showed the Bar's investigator a cashier's check dated March 10, 1995, made payable to Pat West in the sum of $12,500.00, reflecting Earl W. Arnold, Trust, No. 424707095, as the remitter. In reliance on the representations made by Mr. Arnold, the Professional Responsibility Commission dismissed the grievance.

T7 During investigation of the Davenport matter, the Bar discovered that the Respondent's so-called "trust account" at BOK was not an attorney trust account all, but rather was an interest-bearing personal checking account owned by the Respondent. In previous trust accounting certificates filed with the Bar on May 11, 1994 and November 20, 1994, the Respondent had certified that the account was a valid client trust account and that he was in substantial compliance with the requirements for trust accounting records and procedures as set forth at Rule 1.15, ORPC.

T8 Further, contrary to his representation that the Pat West money had remained in his trust account the entire time, the Bar discovered that just a few days before Respondent obtained the cashier's check payable to Pat West, the balance in his BOK account was only $944.33. Only after deposit into his BOK account of a $51,000.00 check from the Davenports were there sufficient funds in the account to cover the check to Pat West. The Respondent converted Ms. West's $12,500.00 by spending it out of his BOK account for other purposes. Respondent then used the Davenport trust money to fund the cashier's check to Pat West.

II. THE DAVENPORT COMPLAINT

T9 In early 1995, the Respondent had several discussions with Everett and Carrie Davenport, an elderly couple living in Has-kell, Oklahoma, about creation of a trust, for which Respondent would serve as trustee. The Respondent previously had prepared Wills for the Davenports and two Durable Powers of Attorney in July, 1992, in which he was named attorney-in fact for Mr. and Mrs. Davenport. The Respondent drafted the trust indenture creating the Everett R. Davenport and Carrie E. Davenport Family Trust, which was signed on March 27, 1995, naming the Respondent as trustee.

{10 The Bar subpoenaed Respondent's bank accounts which established that 1) the BOK account was not set up as an attorney trust account, 2) the Respondent deposited into his personal accounts funds designated by the Davenports for establishment of their trust, and 3) the Respondent wrote personal checks from the accounts using the Davenport trust funds.

{11 The Bar's evidence established that the following transactions occurred with respect to the Davenports' trust funds: On February 27, 1995, check #5808 was drawn on the account of Everett R. or Carrie E. Davenport, payable to "Earl W. Arnold-Trust" in the amount of $51,000.00. The memo portion of the check stated: "set up trust funds." On February 27, 1995, Mr. Arnold deposited the $51,000.00 into his BOK account. Immediately prior to the deposit, the balance in the BOK account was $944.33.

T12 Mr. Arnold immediately wrote the following checks from the BOK account: 1) a check payable to Earl W. Arnold on February 27, 1995 in the amount of $200.00, 2) a check payable to Earl W. Arnold on February 28, 1995 in the amount of $5,000.00, 3) a check transferring $20,000.00 to Respondent's credit union checking account on February 28, 1995, 4) a check dated March 9, 1995 for $74.00 payable to "Dist Ct. Cl," and 5) a check for $12,500.00 to purchase the cashier's check in the Pat West matter on March 10, 1995. The balance in the BOK account on March 12, 1995 was $14,464.90. No other deposits were made to the BOK account until another Davenport check, in the amount of $99,279.92 was deposited on April 12, 1995.

13 As noted above, on February 28, 1995, Respondent transferred $20,000.00 from the BOK account to his credit union preferred-plus checking account which Respondent owned jointly with his wife. Prior to Respondent's deposit of the $20,000.00 into his credit union checking account, the balance was $8.00. After deposit of $20,000.00 into the account, the Respondent wrote numerous personal checks including: 1) purchase of a cashier's check payable to BankOklahoma Mortgage Corp. on March 6, 1995 in the amount of $5,154.54, 2) a cashier's check dated March 14, 1995 to Erich Kuhnel in the amount of $4,800.00, noting "1991 Geo Storm," and 8) a check to Citizens Security Bank on March 6, 1995 in the amount of $3,210.04.

T14 From the credit union checking account, Arnold also issued a check payable to Charles Schwab on March 4, 1995, in the amount of $5,063.72, referenced as being to set up an investment 800 account, account number 1211-5131-I. The Charles Schwab account was set up solely in the Respondent's name. - Respondent transferred $7,500.00 from the credit union checking account to his credit union savings account, also jointly owned with his wife, by two transactions on March 3 and March 6. The only other deposits into the credit union checking account were for $2,050.00 and $11,500.00 on March 9, which appear to be for legal fees. The balance in the credit union checking account was $1,708.92 on March 31, 1995.

15 On May 28, 1997 Mr. Arnold responded by letter to the Bar, stating that the $51,000.00 was deposited to the BOK account on March 1, 1995 and was then "escrowed/set aside" in a credit union savings account on the same date "for interest accumulation, ete." He stated that the $51,000.00 was then transferred in two amounts to the Schwab investment account: $5,000 on March 8, 1995 and $46,000.00 on April 12, 1995. Respondent maintained that the money was "non-attorney-client trust property."

16 These representations are false. The $51,000.00 was deposited to the Respondent's BOK account and $20,000.00 was transferred to his credit union preferred plus checking account, which was a jointly owned with his wife. There was no deposit of $51,000.00 to either credit union account. The balance of the credit union savings account was $6,508.49 on March 26, 1995, and the balance of the credit union checking account was $0.00 by March 20, 1995. Thus, the $46,000.00 allegedly transferred to Charles Sehwab on April 12, 1995 could not have come from the Davenport's $51,000.00.

T 17 Mr. Arnold maintains that he was not acting as attorney for the Davenports and that the money was not client money. This argument is without merit. Mr. Arnold prepared the Davenport trust agreement and was paid for doing so. Mr. Arnold's brief to this Court states that he performed professional services for the Davenports when he created the trust. Regardless of whether Mr. Arnold was dealing with client funds or trust funds, the Bar proved by clear and convincing evidence that the Respondent converted $51,000.00 belonging to the Davenports. The evidence established that the $51,000.00 was given to the Respondent to be held in trust. The $51,000.00 is not part of the $200,000.00 "gift" in controversy.

18 Further, the Respondent deliberately deceived the Davenports about their "trust" accounts and the nature of the investments that he purportedly was making on their behalf. Respondent submitted to Mr. Davenport a series of fabricated Schwab financial statements that showed the Schwab investment account as owned by "Earl W. Arnold, for the benefit of Everett and Carrie Davenport." In fact, there was no Davenport trust account at Charles Schwab. The account was maintained solely in the name of the Respondent. The Charles Schwab investment company had no record of the Davenports.

T19 There are no mitigating circumstances. Respondent has shown no remorse about his handling of the funds belonging to the Davenports, and does not admit that he should have handled the funds differently. Respondent argues that the allegations have not been proven by clear and convincing evidence, thus failing to meet the standard necessary for disbarment. In bar disciplinary actions, this Court does not function as a reviewing tribunal, but rather as a licensing court acting in the exercise of its exclusive original jurisdiction. State ex rel OBA v. Perry, 1997 OK 29, 936 P.2d 897. Because the findings of fact made by the trial panel are not binding here, this Court must pass on the sufficiency and weight of the evidence. State ex rel. OBA v. Raskin, 1982 OK 39, 642 P.2d 262.

20 We find the following established by clear and convincing evidence:

1) The Respondent's BOK account was not an attorney trust account and was in violation of Rule 1.15 ORPC.

2) The Respondent converted $12,500.00 belonging to his client Pat West. Respondent failed to maintain the client's money in a trust account, and did not preserve the funds belonging to his client. Respondent used the Davenport trust money to pay Pat West, five years after he had received the money belonging to Ms. West. Mr. Arnold's argument that the delay was Ms. West's fault is without merit-the Respondent failed to preserve the money owed to his client as he had previously spent the money belonging to her from his BOK account.

3) Respondent converted the Davenport's $51,000.00 entrusted to him to set up the Davenport trust, and falsely represented to them that the money was in a trust account at Charles Schwab.

4) Respondent acted as attorney for the Davenports in drawing up the Davenport trust agreement.

5) Respondent violated his fiduciary duty to Mr. and Mrs. Davenport.

121 Conversion of client funds warrants disbarment. State ex rel. Oklahoma Bar Association v. Meek, 1994 OK 118, 895 P.2d 692. We said in Meek that commingling takes place when client monies are combined with the attorney's personal funds. Conversion occurs when a lawyer applies a client's money to a purpose other than that for which it was entrusted to the attorney. Theft by conversion occurs when an attorney purposefully deprives a client of money by way of deceit and fraud. A finding that the attorney intentionally committed such an act requires imposition of the harshest discipline-disbarment.

122 Conversion of trust or estate funds by an attorney acting in the capacity of trustee or administrator also warrants the severest discipline. Contrary to Respondent's argument that he was not acting as the Davenports' attorney, it is not necessary that the relationship of attorney and client exist before discipline may be imposed for misconduct. In State ex rel. OBA v. Bradley, 1987 OK 78, 746 P.2d 1180, we disbarred an attorney for, among other things, violation of his fiduciary duties while acting as trustee. We said that misconduct by a member of the Bar in order to justify disciplinary action need not occur while the relationship of attorney and client exists. We referred to Rule 1.3, RGDP, which provides grounds for disciplinary action for acts contrary to prescribed standards of conduct. Rule 1.3 provides:

"The commission by any lawyer of any act contrary to preseribed 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 ...." (emphasis added). '

1 23 In State ex rel. Oklahoma Bar Association v. Myers, 1967 OK 44, 424 P.2d 975, we held that commingling the funds belonging to an estate with individual funds warranted disbarment. In Myers, checks payable to and belonging to the estate were deposited to the attorney's personal account, and he wrote personal checks on the estate checking account. No accounting was made in the estate for almost six years. The attorney testified that he knew that it was improper to commingle the estate funds with his own funds but that the sole heir was satisfied with the arrangement. Myers also prepared a fictitious order that purported to empower him to encumber property of the estate. Myers was disbarred.

I 24 In State ex rel. OBA v. Wallace, 1998 OK 65, 961 P.2d 818, 826, involving disciplinary action against a lawyer who was serving as trustee of a trust we said:

"A trustee is a fiduciary of the highest order in whom the hope and confidence of the settlor are placed with the expectation that the trustee will exercise the obligations of the office for the exclusive benefit of the cestui que trust. A trustee always owes to the cestui que trust uber-rima fides [("the most abundant good faith, absolute and perfect candor or openness and honesty," Black's Law Dictionary, (Revised 4th ed.1968) ]. When a legal practitioner occupies the position of trustee and breaches that fiduciary obligation through mismanagement of the trust, that practitioner brings the legal profession into disrepute and, as a result, subjects himself to bar discipline. Strong and unswerving commitment to the value of fiduciary loyalty is a sine gua non of the personal characteristics lawyers must have."

1 25 We have conducted a de novo review of the entire record and find that the clear and convincing evidence establishes that the Respondent engaged in professional miscon-duet in violation of Rules 1.8, 1.4, 1.15, 8.1 and 8.4(c)(d) of the ORPC and Rules 1.8, 1.4 and 5.2 of the RGDP and that such misconduct warrants disbarment from the practice of law. Accordingly, we order that the Respondent be disbarred and his name stricken from the roll of attorneys.

126 The Complainant has filed an application to assess costs in the amount of $4,890.18, including two transcripts in the amounts of $1,783.00 and $1,548.50. The Respondent filed an objection to some of the costs, arguing that under the rules for costs in civil cases, some of the costs would not be permissible, citing 12 O.S. $ 942. Respondent objects to costs of investigation expenses, document costs, postage and telephone expenses, expert witness fee, and transcript costs.

127 In State ex rel OBA v. Armstrong, 1992 OK 1830, 863 P.2d 1107, an attorney attempted to recover costs and attorney fees against the Bar Association, citing 12 0.8. §§ 978 and 1011, and 10 O.8. § 15.1, after this Court denied discipline against the attorney. In denying the application, we said that the statutes cited by the attorney were not authority for purposes of bar disciplinary proceedings where this Court has acted in its capacity of regulating the Bar Association. Armstrong at 1109. We noted that proceedings before this Court were not an appeal, but an exercise of this Court's original and exclusive jurisdiction. We said that the Oklahoma Pleading Code governs the procedure in the district courts, but does not include this Court's exercising original jurisdiction in a Bar proceeding. See also, State ex rel. OBA v. Minter, 1998 OK 59, 961 P.2d 208 where we held that mileage rates for subpoenaed witnesses at $.15 per mile did not apply to mileage rates for members of the Professional Responsibility Tribunal, and the attorney was directed to pay such costs at the rate of $.30 per mile.

28 Rule 6.16 RGDP provides that where discipline results, the cost of the investigation, the record and disciplinary proceedings shall be surcharged against the disciplined lawyer. The Respondent is ordered to pay the costs of the proceeding, in the amount of $4,890.13 within ninety (90) days after this opinion becomes final.

RESPONDENT DISBARRED. COSTS CHARGED TO RESPONDENT.

29 CONCUR: WATT, C.J., OPALA, v.C.J., HODGES, LAVENDER, KAUGER, WINCHESTER, JJ.

30 DISQUALIFIED: SUMMERS, BOUDREAU, JJ.

      . The Affidavit of Conveyances, which is the subject of district court litigation, involved three Davenport checks: 1) the $51,000.00 check, which was to be placed in an account and held as property of the irrevocable Everett R. Davenport and Carrie E. Davenport Family Trust; 2) a check for $99,279.92, part of which was to be placed in the trust and part of which was "gift ed" to Mr. Arnold; 3) a check for $140,709.80, all of which was "gifted" to Mr. Arnold.

      . See also, State ex rel. Oklahoma Bar Association v. Flanery, 1993 OK 97, 863 P.2d 1146; State ex rel. Oklahoma Bar Association v. Brandon, 450 P.2d 824 (Okla.1969); State ex rel. Oklahoma Bar Association v. Martin, 410 P.2d 49 (Okla.1965); and State ex rel. Oklahoma Bar Association v. Ablah, 348 P.2d 172 (Okla.1959).

      . Rules 1.3 RGDP appears at 120.
      Rule 1.4 - RGDP Monetary Transactions
      (a) All members of the Bar who are required under the Oklahoma Rules of Professional conduct, Rule 1.15, to maintain a trust account for the deposit of clients' funds entrusted to said attorney, shall do so and furnish evidence thereof as hereinafter provided. [Rule contains reporting requirements] Failure of any lawyer to respond giving the information requested will be grounds for appropriate discipline.
      (b) Where money or other property has been entrusted to any attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or setoff for fees against any money or other property of his client coming into his hands for such specific purpose, and a refusal to account for and deliver over such money or property on demand shall be deemed a conversion. This does not apply to the retention f money or
      other property otherwise coming into the hands of a lawyer and upon which the lawyer has a valid lien for his services.
      (c) Theft by conversion or otherwise of the funds of a client shall, if proved, result in disbarment ...
      Rule 5.2 RGDP Investigations
      After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either ... (2) file and serve a copy of the grievance ... upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon - expressed - constitutional grounds. Deliberate misrepresentation in such response shall itself be grounds for discipline. ...
      Rule 8.1. ORPC Bar Admission and Disciplinary Matters
      An applicant for admission to the bar, or a lawyer ... in connection with a disciplinary matter, shall not:

        (a) knowingly make a false statement of material fact; or
      (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
      Rule 8.4. - ORPC Misconduct
      It is professional misconduct for a lawyer to:

      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) engage in conduct that is prejudicial to the administration of justice
      Rule 1.15. - ORPC Safekeeping Property
      (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.
      (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.
      (d) Trust Accounts. A lawyer or law firm may create and maintain an interest-bearing demand trust account and may deposit therein all funds of clients to the extent permitted by applicable banking laws, that are nominal in amount or are on deposit for a short period of time. Maintenance of such trust account balances in noninterest-bearing trust accounts will still be permitted. The attorney electing to utilize interest-bearing trust accounts shall comply with the following provisions:
      (1) the Interest-Bearing Demand Trust Account may be established with any bank or savings and loan association authorized by federal or state law to do business in Oklahoma and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation;
      (2) the rate of interest payable on any interest-bearing demand trust account shall not be less than the rate paid by the depository institution to regular, nonattorney depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minimums, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm so long as there is no impairment of the right to withdraw or transfer principal immediately (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby;
      (3) the depository institution shall be directed: [directions omitted]