author: Justice COATS

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Verle MANGUM, Defendant-Appellee.
    No. 02SA70.
    Supreme Court of Colorado, En Banc.
    June 24, 2002.

      Peter G. Hautzinger, Chief Deputy District Attorney, Richard B. Tuttle, Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.
    Richard Gurley, Colleen B. Scissors, Grand Junction, Colorado, Attorneys for Defendant-Appellee. |
   Justice COATS

delivered the Opinion of the Court.

The People appealed pursuant to section 16-12-102(2), 6 C.R.S. (2001), and C.A.R. 4.1, challenging the district court's order suppressing certain of the defendant's statements to the police. Because we agree that the statements were the product of custodial interrogation without the benefit of Miranda warnings, the district equrt's order is affirmed. , >

1.

Following his apprehension and arrest on May 5, 2001, the defendant was charged with the five-year-old murders of Janet and Jennifer Davis, child abuse resulting in death, sexual assault on a child, and a number of violent crime and juvenile direct file counts. 'The defendant moved to suppress the statements that he made to the police on the day of his arrest. After hearing the defendant's motion on February 4, 2002, the district court made detailed written findings of fact and conclusions of law.

According to the district court’s ﬁndmgs, on April 30, 2001, the Mesa County Sheriff's Department received information from the Department of Human Services that Shawna Mangum had implicated her husband, Verle, in the double homicide. She also told a Human Services employee that Mangum had said he would commit suicide if he were contacted by the police. On May 4, 2001, the Sheriffs Department obtained a Crim. P. 41.1 order for non-testimonial identification evidence.

Based on information that the defendant would be driving from Utah to Grand Junetion sometime on May 5, 2001, to pick up his two-year-old sor, officers began surveillance of his wife's residence, intending to interrogate the defendant and then execute the non-testimonial identification order. The officers watched the car in which the defendant was riding leave his wife's residence carrying two children, who were apparently not in car seats, and a crib poorly secured to the roof, and they decided to pull it over. While the driver was being questioned about documentation, the defendant agreed to speak with another officer outside the car. After being told that the police were reopening the Davis homicide case, that they would like him to come to the Sheriff's Department to speak with them, and that Human Services wanted them to take custody of his son, the defendant fled.

Two ofﬁcers éhased him, ordered him at gunpoint to drop .a knife he had put to his throat, and sprayed him in the face with pepper spray after he sliced his throat several times. When the defendant escaped and ran again, he was pursued by officers on foot and in a patrol car, and was ultimately ordered at gunpoint to come out of the bushes where he was hiding with his hands up. The defendant complied, asking not to be hurt and indicating that he was done. When it was clear that the defendant no longer had a knife, he was ordered to drop to his knees and then to his stomach. He was handcuffed and searched and his wallet was seized. Despite the large gashes on the defendant's throat and the arrival of paramedics with an ambulance, one of the police officers ordered a delay in medical attention to speak with the defendant for a few minutes alone.

After another officer told him that he was not under arrest but had been handcuffed for his own protection, the defendant said that he had "serewed up" his life and that his life was over. When the officer indicated that they could work things out, the defendant responded that he would not survive in prison and that he was seventeen at the time, and after being further consoled by the officer, that he was going to prison and that his life was over. After telling the defendant that no one knew what would happen and that the most important thing was to take responsibility, the officer questioned him about what happened, and the defendant gave details of the murders.

Following several minutes of conversation, the defendant was examined by the paramed-ies and, still cuffed, was strapped to a gurney and taken by ambulance to the hospital. The officer continued to interrogate the defendant as he was being treated for his injuries on the way to the hospital, encouraging him as he gave more details by telling him that he was starting to take responsibility and could help the Davis family by revealing what happened and why. The defendant then gave considerably more detail about how and why he committed the murders.

After arriving at the hospital, the defendant remained handcuffed but was again told that he was not under arrest and that the handcuffs were for his own protection. The deputy who "stood by" the -defendant's bed was told that the defendant was not in custody but was detained for execution of the Rule 41.1 order. About three hours later, the defendant was taken to the Sheriff's Department, where blood was drawn and fingerprints taken. Between two and three hours later, the defendant was placed in jail. Although the defendant made other statements during the course of these events, he was never told that he was free to leave or advised of his constitutional rights.

In a detailed, written analysis of the controlling law and its application to these facts, the trial court concluded that in the totality of the cireumstances the defendant was in custody for purposes of his entitlement to Miranda warnings from the time he was handcuffed. Although it found all of his statements voluntary in the constitutional sense and many of them actually volunteered rather than made in response to interrogation, it suppressed those of the defendant's statements that were made in response to interrogation conducted after he was handcuffed. The prosecutor filed an interlocutory appeal, challenging the trial court's determination that the defendant was in custody for purposes of Miranda and asserting that suppression was not the proper remedy in any event because the police held a good faith belief that they lacked probable cause to arrest the defendant at the time of the questioning.

IL.

There are two federal constitutional bases for the requirement that a confession be voluntary in order to be admitted into evidence: the Due Process Clause of the Fourteenth Amendment and the Fifth Amendment privilege against self-incrimination. See Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). The due process or "yoluntariness" test takes into consideration the totality of all the surrounding © cireumstances-both the characteristics of the accused and the details of the interrogation-to determine whether the accused's will was actually overborne by coercive police conduct. Id. at 2881; People v. Valdez, 969 P.2d 208, 211 (Colo.1998). However, because the inherently coercive nature of custodial police interrogation height ens the risk that an individual will not be accorded his privilege under the Fifth Amendment, the Supreme Court has also laid down concrete constitutional guidelines governing the admissibility of statements given during custodial interrogation. See Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Statements made during custodial police interrogation are admissible in the prosecution's case in chief only if the person making them has already been properly advised concerning his right to remain silent and his right to have a lawyer, and if he has made a voluntary, knowing, and intelligent waiver of those rights. See id. at 444, 86 S.Ct. 1602.

We have often, and recently, considered the nature of custody entitling a suspect to the benefit of Miranda warnings before interrogation. See, e.g., People v. Matheny, 46 P.3d 458 (Colo.2002); People v. Taylor, 41 P.3d 681, 689-98 (Colo.2002); People v. Polander, 41 P.3d 698, 705 (Colo.2001). It is now clearly established that an interrogation is custodial within the meaning of the phrase "custodial interrogation" not only if it occurs while the person making the statement has been formally arrested but whenever his freedom of action is curtailed to a degree associated with formal arrest. See Stamsbury v. California, 511 U.S. 318, 822, 114 S.Ct. 1526, 128 L.Ed.2d 298 (1994); Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 LEd.2d 817 (1984); California v. Beheler, 463 U.S. 1121, 1125, 108 S.Ct. 3517, 77 LEd.2d 1275 (1988); Matheny, 46 P.3d at 463.

A court must examine all of the cireumstances surrounding the interrogation to determine whether there was a restraint on freedom of movement of the degree associated with a formal arrest. Stansbury, 511 U.S. at 822, 114 S.Ct. 1526, Matheny, 46 P.3d at 464. Because it was the compulsive aspect of custodial interrogation rather than the strength or content of the government's suspicions that led the Supreme Court to impose the Miranda safeguards, see Beckwith v. United States, 425 U.S. 341, 346-47, 96 S.Ct.: 1612, 48 L.Ed.2d 1 (1976); Matheny, 46 P.3d at 464, the determination of custody depends on the objective cireumstances of the interrogation rather than the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury, 511 U.S. at 3283, 114 S.Ct. 1526; Matheny, 46 P.3d at 464. A person being interrogated by the police is therefore in custody if, but only if, he has been formally arrested or in the totality of the circumstances a reasonable person in the suspect's position would have felt that his freedom of action had been curtailed to a degree associated with a formal arrest. See Matheny, 46 P.3d at 465-66. -

We have in the past articulated a number of considerations relevant not only to the question whether a reasonable person would feel free to leave but whether he would also believe he was in police custody of the degree associated with a formal arrest rather than with a brief investigatory detention. Id. at 465; see also Polander, 41 P.3d at 705. While none of these factors is dispositive, as a whole they provide an objective basis for determining custody. The nature and degree of the force used by the police to restrain the defendant in this case, whether or not it was reasonable under the cireum-stances and whether or not it would have been justified even in the absence of probable cause for an arrest, clearly showed it to be force of a kind more traditionally associated with the concepts, of custody and arrest than with a brief investigatory detention. See id.; People v. Breidenbach, 875 P.2d 879, 886 (Colo.1994).

The defendant was vigorously chased by a number of officers on foot and by vehicle, threatened at gunpoint, sprayed in the face with mace, and ultimately subdued and handcuffed. At the time, the car in which he was riding had already been stopped by the police; he had been asked to come to the Sheriff's Department to speak with them about a double homicide; and he had been told that Human Services had requested that his son be taken into protective custody. He had run from the officers and sliced his own throat rather than accompany them. Although he was told that he was not under arrest, a separate legal basis for the defendant's restraint did not mitigate the degree of force used to acquire and maintain that restraint or the fact that he was clearly not about to be released after a brief detention.

While exhibiting guns or using handcuffs may at times amount to reasonable safety precautions that do not necessarily elevate a seizure based on less than probable cause to a full arrest, Fifth Amendment protections are concerned with the likely coercive effect of this degree of force on a reasonable person in the suspect's position. Neither the reasonableness of the force nor its legal justification alters its likely coercive effect. Where it would appear to a reasonable person in the defendant's position that his freedom of action or movement had been curtailed to a degree associated with a formal arrest, in terms of both severity and duration, he is entitled to a Miranda advisement before being interrogated. Miranda never bars interrogation itself no matter how coercive the environment; it merely ensures that a defendant's statements made during custodial interrogation may not be used in the case against him unless he was adequate ly warned of, and waived, his right not to make them. The defendant was neither warned of his Miranda rights nor released from custody at any time prior to being placed in jail.

IIL

The People also assert that suppression of the defendant's statements made during custodial interrogation is not a proper remedy for the failure of the police to warn him of his Miranda rights because their belief that they did not at that time have grounds to arrest him amounted to a "good faith mistake," as defined at section 16-83-3808 6 C.RS. (2001). The argument confounds Fourth Amendment prohibitions against unreasonable seizures of the person with Miranda's safeguards against custodial interrogation. The custodial nature of interrogation is not conditioned upon probable cause for an arrest. Neither Colorado nor federal law purports to recognize a "good faith" exception to the exclusionary remedy for statements taken in violation of Miranda.

IV.

We agree that police interrogation of the defendant after he was handcuffed in this case was custodial and that there is no good faith exception to the exclusionary remedy for a Miranda violation. The order of the district court is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. Lynn DAITZMAN, Respondent.
    Nos. 01PDJ034, 01PDJ059.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    June 11, 2002.
   Opinion by

Presiding Disciplinary Judge ROGER L. KEITHLEY

and Hearing Board members, WILLIAM R. GRAY and KATHLEEN KILLIAN, both members of the bar.

REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on February 26, 2002, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, William R. Gray and Kathleen Killian, both members of the bar. Terry Bernuth, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Lynn Daitzman ("Daitzrman"), the respondent, did not appear either in person or by counsel.

The Complaint in Case No. O1PDJO034 was filed April 2, 2001 and amended on April 5, 2001. The Citation and Amended Complaint were sent by regular and certified mail to Daitzman on April 5, 2001, to her registered business address, 600 17th Street, Suite 950-South, Denver, Colorado, 80202. A copy was also sent to the additional address of 3127 West 24th Ave., Apt. 4, Denver, CO 80211-4649. A proof of service was filed May 1, 2001. Service was therefore proper pursuant to C.R.C.P. 251.82(b). Daitzman did not file an Answer to the Amended Complaint. On May 23, 2001, the People moved for default, and the PDJ granted the default, deeming admitted the allegations of fact set forth in the Amended Complaint, and deeming established the claims set forth therein.

The Complaint in Case No. OLPDJO059 was filed on May 25, 2001. The Complaint and Citation were sent by. regular and certified mail to Daitzman on May 25, 2001. A proof of service was filed July 6, 2001. Service was therefore proper pursuant to C.R.C.P. 251.832(b). Again, Daitzman did not file an Answer to the Complaint. The People moved for default, which was granted in part and denied in part on August 30, 2001. On September 12, 2001, the People filed an Amended Complaint and Daitzman did not file an Answer thereto. The People moved for default, which was granted on December 12, 2001, deeming admitted the allegations of fact set forth in the Amended Complaint and deeming established the claims set forth therein. The two matters were consolidated on June 26, 2001.

At the sanctions hearing, the People presented testimony from Tammy Andrus and Joyce Santero. Exhibits 1 through 8 were offered by the People and admitted into evidence. The Hearing Board considered the People's argument, the facts established by the entry of default, the exhibits admitted, assessed the testimony and credibility of the witnesses and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Daitzman has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on April 30, 1992 and is registered upon the official records of this court, registration number 21831. Daitzman is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Amended Complaints in this consolidated matter were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See Amended Complaints attached hereto as exhibits 1 and 2. The orders entering default also granted default as to all alleged violations of The Rules of Professional Conduct set forth therein.

I. CONCLUSIONS OF LAW

The Andrus Matter

In May 1999, Tammy Andrus ("Andrus") hired respondent to represent her in post-decree dissolution matters concerning custody of two minor children. When a dispute arose regarding the interpretation of the court's order concerning parenting time of the parties, Andrus repeatedly attempted to contact Daitzman but Daitzman did not return the calls. When Andrus again attempted to contact Daitzman concerning an emer-geney custody matter, Daitzman again failed to return her phone calls.

Opposing counsel, unable to reach Daitz-man over a two-month period, filed a motion with the court concerning parenting time. Daitzman did not respond to the motion and did not advise the client that it had been filed. Instead, she attempted to withdraw from the case. Her motion was denied. The court repeatedly attempted to contact Daitz-man and after much difficulty, spoke with her and arranged that the court would contact her to initiate a status conference. When the court attempted to do so, however, Daitzman's phone had been disconnected. Daitzman failed to attend the status conference, and did not inform her client that the status conference had been scheduled. The court allowed replacement counsel to represent Daitzman's client's interests. Daitzman did not respond to the motion for substitution of counsel. The. matter was ultimately resolved at considerable additional expense to the client. Daitzman failed to respond to a request for investigation regarding this matter from the Office of Attorney Regulatlon Counsel.

Daitzman's failure to return the client's and opposing counsel's phone calls constituted a violation of Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) ard Colo. RPC 1.3 (an attorney shall act Wlth reasonable dlhgence and promptness in representing a client). Her failure to respond to the motion regarding parenting time, her failing to advise the client that it had been filed, and her failure to appear at the status conference constituted a violation of Colo. RPC 1.3 (neglect). Daitzman also failed to take steps necessary to protect the client's interests after termination in violation of Colo. RPC 1.16(d)(upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests). ~

Daltzman s handling of the Andrus matter warrants a finding of abandonment. To find abandonment rather than merely neglect, there must be proof that the attorney-during a given time period-was required to accomplish specific professional tasks for the client, failed to accomplish those tasks, and failed to communicate with the client. People v. Carvell, No. 99PDJ096, slip op. at p. 9 (Colo. PDJ September 11, 2000), 2000 Colo. Discipl. LEXIS 26. The proof must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client. Id. The totality of facts establish that Daitzman deserted, rejected and/or relinquished the professional responsibilities owed to her client and thereby abandoned her.

Daitzman's failure in responding to the request for investigation constituted grounds for discipline pursuant to C.R.C.P. 251.5(d) and a violation of Colo. RPC 8.1(b)(an attorney shall not knowingly fail to respond reasonably to a lawful demand for information from a> disciplinary authority).

The Santero Matter

On September 18, 1999, Ms. Joyce Santero and her son Kurt Santero met with Daitzman to discuss initiating a child custody case. The Santeros were urgently attempting to obtain custody of Kurt Santero's five-year old son and prevent the mother-who was suffering from a drug addiction-from taking the child. ‘Daitzma‘m requested and was paid $1,530.00 for her representation and costs. She deposited the funds into her personal account rather than a trust account, and withdrew the funds within the next five days for her personal use. Thereafter, Daitzman met with the clients on September 80, 1999 to assist them in petitioning the court for a restraining order against the child's mother. The petition was filed the same day, and a hearing date scheduled for October 21, 1999.

On the date of the hearing, Daitzman arrived late: By the time Daitzman appeared, the court had dismissed the matter based on her failure to appear. Daitzman assured the client that she would file the matter again. Several months passed and Daitzman did not contact the clients and did not return their calls. The matter required immediate attention because the mother-who was potentially dangerous to the child-requested that the child be returned. Because Daitzman had not taken the necessary steps to obtain custody, the clients were constrained to return the child to the mother.

After failing to reach Daitzman over an eight month period, the clients requested a refund. Although Daitzman signed for the certified letter sent by the clients, she did not contact the clients nor tender a refund to them.

By failing to communicate with the clients regarding the custody matter, Daitzman violated Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information). By failing to appear for a hearing resulting in the matter being dismissed, and by failing to pursue custody of the child on behalf of the clients, Daitzman neglected the clients' legal matter in violation of Colo. RPC 1.3 (an attorney shall act with reasonable diligence and promptness in representing a client). Daitzman's neglect of the Santero matter rose to the level of abandonment. See Carvell, supra, (stating that a finding of abandonment must objectively indicate that the attorney has deserted, rejected and/or relinquished the professional responsibilities owed to the client); People v. Schmeiser, 85 P.3d 645, 647 (Colo. PDJ 2001)(finding abandonment where attorney closed his office, allowed his telephone service to be terminated, failed to inform his client of those changes, and failed to communicate with his client following the office closure).

By accepting the clients' funds, failing to perform the services she was hired to perform, depositing the funds in her personal account, and using them for her own benefit, Daitzrman knowingly converted the clients' funds for her own use in violation of Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Daitzman's failure to refund the unearned portion of the $1,530.00 to her client for over a year, knowing that she had not performed the services for which the funds were paid is sufficient evidence to conclude that Daitzman knowingly converted her clients' funds in violation of Colo. RPC 8 A(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). See People v. Elliott, 39 P.3d 551, 555-56, (Colo. PDJ 2000) (disbarring attorney for his accepting advance fees from two clients, performing some but not all of the services for which he was paid, retaining the fees for one year in one matter and two years in another matter, and abandoning the clients, citing People v. Singer, 897 P.2d 798, 801 (Colo.1995)(holding that extensive and prolonged neglect is considered willful misconduct); People v. Silvola, 915 P.2d 1281, 1284 (Colo.1996)(finding that misconduct that occurred over an extended period of time must be deemed to be willful); People v. Varallo, 913 P.2d 1, 11 (Colo.1996)(holding that knowing misappropriation [for which the lawyer is almost invariably disbarred] consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking), citing In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). Misappropriation includes not only stealing, but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom, citing In re Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153 (1979). The motive of the lawyer is irrelevant in determining the appropriate discipline for knowing misappropriation. (citation omitted).

III SANCTION/IMPOSITION OF DISCIPLINE

Colorado law provides that in the absence of substantial mitigating factors, disbarment is the presumed sanction when an attorney knowingly misappropriates clients' funds. See Varallo, 918 P.2d at 12, citing People v. Lefly 902 P.2d 861 (Colo.1995)(lawyer's knowing conversion of client funds almost always merits disbarment even if the funds are eventually replaced).

In both the Andrus and Santero matters, Daitzman's complete disregard for the exigent needs of her clients and the pattern of serious neglect of her clients' legal matters rose to the level of abandonment. The presumed sanction for knowing conversion coupled with abandonment of an attorney's clients also results in disbarment. See People v. Wallace, 936 P.2d 1282, 1284 (Colo.1997) (disbarring lawyer who,. abandoned clients, causing them serious harm, and knowingly misappropriated client funds); People v. Townshend, 988 P.2d 1827, 1829 (Colo.1997)(Iawyer disbarred who effectively abandoned two clients after accepting retainers and failing to account for or return the unearned retainers); People v. Gilbert, 921 P.2d 48, 50 (Colo.1996)(attorney disbarred for converting client funds in conjunction with abandonment of practice); People v. Jenks, 910 P.2d 688, 692 (Colo.1996)(attorney disbarred for accepting legal fees from a number of clients and then abandoning them, causing some of the clients substantial harm); People v. Tucker, 904 P2d 1821, 1825 (Colo.1995)(lawyer disbarred who abandoned clients while continuing to collect attorney fees for work that would not be performed); People v. Fritsche, 897 P.2d 805, 806-807 (Colo.1995)(lawyer who effectively abandoned clients and disregarded disciplinary proceedings disbarred).

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 4.11 provides that "[dJisbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."

ABA Standard 4. 41(b) and (c) provide that disbarment is generally appropriate when:

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to the client.

In the present case, Daitzman knowingly converted funds belonging to her client, and in two separate matters failed to perform the services she was engaged to perform. Knowing conversion alone warrants disbarment. Varallo, supra. When coupled with Daitzman's abandonment of her clients in two matters and her failure to respond to the request for investigation in one matter, disbarment is clearly the warranted sanction.

Determination of the appropriate sanction requires the Hearing Board to consider aggravating and mitigating factors. Since Daitzman did not participate in these proceedings, no mitigating factors were established. The facts deemed admitted in the Amended Complaints established several aggravating factors pursuant to ABA Standard 9.22. Daitzrman engaged in a pattern of misconduct, see id. at 9.22(c); she engaged in multiple offenses, see id, at 9.22(d); in both the Andrus and Santéro matters, the clients were vulnerable, see id. at 9.22(h); Daitzman demonstrated indifference to making restitution, see id. at 9.22(J), and she engaged in bad faith obstruction of the disciplinary proceeding, see id. at 9.22(e).

Moreover, Daitzman has had prior discipline, an aggravating factor under ABA Standard 9.22(a). In 1995, Daitzrman received a Letter of Admonition for neglect and lack of competence in dealing with a Uniform Parentage Act matter. In 2001, she was suspended from the practice of law for a period of three years for conduct similar to the conduct at issue in the present case. People v. Daitzman, Case No. 00PDJ052 (Colo. PDJ January 24, 2001) 2001 Colo. Discipl. LEXIS 23, *13. In that matter, Daitzman was suspended for engaging in a pattern of serious neglect and lack of communication with her clients, including one case of abandonment.

IV. ORDER

It is therefore ORDERED:

1. LYNN DAITZMAN, attorney registration number 21881 is DISBARRED from the practice of law effective thirty-one days from the date of this Order.
2. Daitzman is ordered to pay restitution to the client protection fund in the amount of $1,530.00 with interest at the statutory rate from December 18, 2001 within one year from the date of this Order.
3. Daitzman is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT 1

AMENDED COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on April 30, 1992, and is registered upon the official records of this court, registration No. 21831. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 600 17th Street, Suite 950 South, Denver, Colorado 80202. The respondent's registered home address is 800 Ogden Street, Denver, Colorado 80218. The respondent's most recent address known to this office is $127 W. 24th Avenue, Apartment 4, Denver, Colorado 80211-4649.

GENERAL ALLEGATIONS

On September 13, 1999, the complaining witness, Ms. Joyee Santero, and her son Kurt Santero met with the respondent to discuss initiating a child custody case. Kurt Sante-ro's five year old son was living exclusively with him at the time. According to Mr. Santero, the child's mother was homeless and a drug addict. At the time the Santeros met with the respondent, the biological mother had had no contact with the child for two months. Neither Mr. Santero nor the biological mother had initiated any legal action previously to determine their rights and responsibilities with respect to the child; The clients were advised by the respondent that they should move quickly to get a custody order and a restraining order in place while the mother was unable to care for the child.

Joyee Santero and Kurt Santero were further advised by the respondent that she would represent them in a child custody action if they paid her a retainer of $1500. No fee agreement and no billing statements were received by the clients. The clients paid the respondent a retainer of $1500 on September 18, 1999 by check during their initial meeting with the respondent which lasted approximately an hour.

The check was negotiated by the respondent at Norwest Bank where she had a personal account on September 16, 1999. It is not clear from the bank records whether it was negotiated for cash or deposited into her personal account that day. There was a deposit into the respondent's personal account that day in the amount of $1572. Five days later on September 21, 1999 the account had a negative balance. The respondent had earned only a small portion of the funds for the one hour initial consultation she had had three days earlier with the clients at the time she exchanged the check for cash or deposited the check into her personal account. None of the clients' funds were deposited into a trust account. The respondent knew at the time she negotiated the check that she had not earned the entire fee but only a small portion of it.

On September 80, 1999, the clients met the respondent at the Jefferson County courthouse, as they had arranged to do. With the help of the respondent, the clients filled in a form verified complaint for a restraining order. The complaint was filed to protect the child from the mother who was neglectful and unable to appropriately care for the child, according to the allegations in the complaint. A temporary restraining order was entered that day and a return date was scheduled for October 21, 1999 at 8:80 a.m.

The clients were advised by the respondent that obtaining a restraining order was the first step in the process for permanent custody of the child. The respondent told them that they would be in a very strong position legally for custody of the child onee the restraining order was entered on a permanent basis.

Prior to October 21, 1999, the respondent had advised the clients that the restraining order would be made permanent since the mother had told the respondent that she was not going to appear for the return date. The mother's failure to appear would most probably be interpreted by the court as a confession of the allegations in the complaint, according to the advice given the clients by the respondent.

On October 21, 1999, at the appointed time, Kurt Santero was present in the courtroom when the case, 990114830, was called in the Jefferson County Court. .The respondent was not present when the case was called and did not arrive until after the case was dismissed by the magistrate for failure to appear.

The respondent came to the courthouse late and she apologized to Mr. Santero for not being on time. The respondent told him that she would refile a complaint for a restraining order and that she would not charge the clients for any of her time-required to get a permanent restraining order.

Ms. Santero's husband and Kurt Santero's father was dying of cancer so they did not follow up immediately with the respondent. The clients were told by the respondent that she would contact them to refile for the restraining order and to file the custody case.

Several months passed and the clients heard nothing from the respondent. Meanwhile, the mother surfaced and demanded the child back. Since there were no orders in place, Mr. Santero had no choice but to allow the mother time with the child. _

Immediately upon the mother's reappearance, the clients attempted to contact the respondent. In March, 2000 Ms. Santero called the respondent's office repeatedly. She called on the 15th, 16th, 17th and 18th of March and was told by a secretary that the respondent was on the telephone and that she would have the respondent call her back right away. Ms. Santero never received a return call from the respondent. Ms. Sante-ro called the respondent several more times. Finally, on March 24, 2000, a paralegal from the respondent's office called Ms. Santero back. Ms. Santero told the paralegal how upset she was the respondent had not returned any of her telephone calls. The paralegal gave Ms. Santero a new telephone number and address for the respondent but told Ms. Santero not to tell the respondent how she got that information.

Ms. Santero left numerous messages at the new telephone number requesting a call back but the respondent never called her back or contacted her or her son in anyway after the October 21, 1999 hearing date.

The respondent spent a maximum of five hours on the case including the one-hour initial consultation, travel time to the courthouse and two short appearances at the courthouse. The respondent's typical hourly rate was $150 per hour. After the October 21, 1999 court appearance, the respondent had earned a maximum of $750 of the $1500 retainer.

On April 25, 2000, the client still had had no communication from the respondent. Ms. Santero wrote a letter to the respondent on that date demanding the respondent refund the retainer of $1500 and the $80 filing fee that Ms. Santero had paid to file the initial complaint.

Ms. Santero's letter was sent certified mail to the respondent's registered business address and was received and signed for by the respondent's agent at her registered business address. The respondent knew upon receipt of the letter that she was no longer authorized to hold the balance of the retainer.

Over a year has passed and the Santeros have not received the retainer or filing fee back or any funds from the respondent. In fact, the respondent has had no communication with the Santeros even though they have requested that on numerous occasions since October 21, 1999. The respondent has abandoned the Santeros as clients and corivertqd their money to her own personal use by cashing the check or depositing it into her personal account. ,

WHEREFORE, the complainant prays at the conclusion hereof. '

CLAIM I

[Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness) ]

Paragraphs 1 through 17 are incorporated herein.

The respondent neglected the clients' legal matter in violation of Colo. RPC 1.8 by appearing at the October 21, 1999 hearing so late and without any excuse that the complaint for a restraining order and the temporary order were dismissed by the magistrate.

The respondent neglected the clients' legal matter by not refilling the complaint for a restraining order, as she had promised to do, at no cost to the clients, in violation of Colo. RPC 1.8.

The respondent neglected the clients' legal matter by not filing a petition for custody of the child while the child was living with the clients or anytime thereafter in violation of Colo. RPC 1.8. '

CLAIM II

[Colo. RPC 14(a) (a lawyer shall keep a client reasonably informed) (neglect and failure to communicate resulting in abandonment) ]

Paragraphs 1 through 21 are incorporated herein.

The respondent promised the clients that she would initiate the refiling of the complaint for the restraining order and that she would file a petition for custody. The respondent failed to communicate with the clients either by letter or telephone concerning these matters after the October 21, 1999 hearing date in violation of Colo. RPC 1.4(a).

The respondent failed to respond to numerous telephone messages and requests for return telephone calls from Ms. Santero in March 2000 or anytime thereafter in violation of Colo. RPC 1.4(a).

The respondent's neglect of the clients' legal matter coupled with her failure to communicate has resulted in abandonment of the clients.

CLAIM IH

[Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) ]

Paragraphs 1 through 25 are incorporated herein.

On September 16, 1999, the respondent knowingly converted the clients' funds by exchanging their check for cash or depositing their check into her personal checking account even though she had only earned a very small portion of the funds, having only done an hour's worth of work for the clients. Within five days after the check was negotiated, the respondent's personal account had a negative balance. The respondent clearly knew that she had not earned the funds on September 16, 1999 but she misappropriated those funds to her own personal use on that day without the authority of the client.

The clients demanded that respondent refund the retainer by certified letter at the respondent's registered business address. That letter was accepted by the respondent's agent.

The respondent never responded and never refunded any money to the clients. The respondent knowingly converted the unearned portion of the clients' retainer in violation of Colo. RPC 8.4(c).

The foregoing. conduct of the respondent establishes grounds for discipline as provided in C.R.CP. 251.5; and violates Colo. RPC 1.3, 1.4(a) and 8.4(c).

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Conduct and that she be appropriately disciplined and assessed the costs of these proceedings. '

EXHIBIT 2

AMENDED COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14, and it is alleged as follows:

1. The respondent has taken snd sub-seribed the oath of admission, was admitted to the bar of this court on April 30, 1992, and is registered upon the official records of this court, registration No. 21331. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 600 17th Street,

Suite 950 South, Denver, Colorado 80202. The respondent's registered home address is 800 Ogden Street, Denver, Colorado 80218. The respondent's most recent address known to this office is $127 W. 24th Avenue, Apartment 4, Denver, Colorado 80211-4649.

GENERAL ALLEGATIONS

2. In May, 1999 Ms. Tammy Andrus hired respondent to represent her in some post decree dissolution matters. Respondent agreed to enter her appearance in the divoree case.

3. On June 28, 1999 in response to the respondent's motion, she was substituted by order of the court as attorney of record for the petitioner, Tammy Andrus, in case no. 98DR1789, In re the Marriage of Andrus, Arapahoe County District Court,. A motion to modify parenting time which had been filed pro se by Ms. Andrus was pending in the case and had been ordered by the court to be set for trial.

4. - Shortly thereafter, the respondent and the opposing counsel, who represented Mr. Andrus in the divorcee case, agreed to the appointment of a special advocate and informed the court that they thought they could resolve the parenting time issue without a hearing.

5. The special advocate worked with the parties for many months to resolve the parenting issues. A stipulation resolving the parenting time issues that were pending was entered into by the parties, their counsel and the special advocate and made an order of the court on May 30, 2000.

6. Almost immediately, dispute arose between the parties as to the interpretation of the language of the order with respect to summer parenting time. Ms. Andrus attempted to reach the respondent many times by telephone. She left many messages for return calls. The respondent never returned any .of her telephone calls after May 30, 2000.

". During the summer, an emergency arose. Social services was investigating an incident of sexual abuse involving. her son. Ms. Andrus attempted to reach the respondent on numerous occasions for advice. Ms. Andrus left many messages and never received a return call from the respondent.

8. On August 24, 2000, the father, through his attorney, filed a motion regarding allocation of holiday parenting time and made allegations to the court that Ms. An-drus was denying him his parenting time. The motion alleged that numerous attempts were made to contact the respondent and that the father's counsel had left approximately twenty messages at the respondent's office in a two month period in an attempt to resolve the issue without litigation. After making so many attempts to reach the respondent that were unsuccessful, the father's attorney was left with no option but to file a motion with the court.

9. The father's motion was sent to respondent as attorney of record for Ms. An-drus. The respondent never forwarded the motion to Ms. Andrus nor did she file a response on behalf of Ms. Andrus. The respondent attempted to withdraw as petitioner's counsel by filing a motion with the court shortly after receiving the father's motion but her motion to withdraw was denied on September 28, 2000. Her motion to withdraw did not include her own address nor was the notification to all parties complete.

10. A telephone status conference on the father's motion was scheduled by the court for October 18, 2000 at 1:80 p.m. The court had earlier spent nearly two weeks attempting to reach the respondent to schedule the telephone conference in the matter. The respondent's telephone did not allow the court to leave messages. After numerous attempts to reach the respondent, the court was finally successful in reaching her. The respondent agreed to schedule the telephone status conference for that date. However, the respondent refused to give the court a current mailing address for her home or office.

11. On October 18, 2000 at the appointed time for the telephone hearing with the court, the court called the respondent. The respondent's telephone number was disconnected and the phone recording stated that no further information was available.

12. The respondent's client, Ms. Andrus, was not informed by the respondent of the pending motion or the scheduled telephone hearing. The court instructed the special advocate to contact Ms. Andrus regarding the pending motion and the scheduling of the motion for hearing.

13. A hearing on the merits of the father's motion to modify parenting time was scheduled by the court for November 18, 2000. Ms. Andrus was able to hire new counsel who was allowed to substitute in by the court without any action by the respondent. Ms. Andrus' substitute counsel contacted the father's counsel and the special advocate immediately to negotiate an agreement on the pending issues.

14. The parties and counsel were able to resolve the pending issues of the motion on the day it was scheduled to be heard by the court. The parties and counsel read an agreement into the record which was later reduced to writing and approved by the court. However, substantial additional attorneys fees were incurred by the client as a direct result of the respondent's conduct.

CLAIM I

[Colo. RPC 1.3 (Neglect Resulting in Abandonment of a Client) ]

15. Paragraphs 1 through 14 are incorporated herein.

16. The respondent neglected the legal matter entrusted to her by failing to respond to a motion filed against her client, by failing to return the telephone calls to opposing counsel, and by failing to appear at the scheduled telephone conference with the court in violation of Colo. RPC 1.8.

17. The respondent's neglect of the client's legal matter and failure to appear at a hearing coupled with respondent's failure to communicate results in abandonment of the client. '

18. The respéndent’s conduct as referenced above resulted in numerous violations of Colo. RPC 1.3.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

[Colo. RPC 1.4(a) (Failure to Communicate Resulting in Abandonment) ]

19. Paragraphs 1 through 18 are incorporated herein.

20. The respondent failed to inform the client of the pending motion to modify parenting time in violation of Colo. RPC 1.4(a).

21. After May 30, 2000 the respondent failed to return telephone messages requesting return calls by her client in violation of Colo. RPC 1.4(a).

22. The respondent's failure to communicate coupled with her neglect of the client's matter resulted in abandonment of the client.

23. The respondent's conduct as referenced above resulted in multiple violations of Colo. RPC 1.4(a).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM III

[Colo. RPC 1.16(d) (Upon Termination, a Lawyer Shall Take Steps to Protect a Client's Interest) ]

24. Paragraphs 1 through 23 are incorporated herein.

25. The respondent failed to take any steps to protect the client's interest when she unilaterally terminated the client. Her failure to alert the client of the pending motion to modify parenting time and her failure to allow the client time for employment of other counsel are violations of Colo. RPC 1.16(d).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM IV

[Colo. RPC 8.1(b) (Failure to Respond to Disciplinary Authority) and C.R.C.P. 251.5(d) (Grounds for Discipline) ]

26. - Paragraphs 1 through 25 are incorporated herein.

27. The requests for investigation filed by complainant Ms. Tammy Andrus and Attorney Regulation Committee were sent certified and regular mail to respondent.

28. The respondent has not filed a written response to either requests for investigation as required by C.R.C.P. 251.10(3).

29. The respondent has not responded in any manner to a lawful demand for information from a disciplinary authority during the investigation of this matter.

30. - The respondent's failure to respond is a violation of Colo. RPC 8.1(b) and grounds for discipline pursuant to C.R.C.P. 251.5(d).

CONCLUSION

The foregoing conduct of respondent establishes grounds for discipline as provided in C.R.C.P. 251.5; and violates Colo. RPC 1.3, Colo. RPC 1.4(a), Colo. RPC 1.16(d) and Colo. RPC 8.1(b).

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Con-duet and that she be appropriately disciplined and assessed the costs of these proceedings.


author: BOUDREAU, J. 33 OPALA, J.,

text:
    2002 OK 4
    STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Larry Dean WAGENER, Respoﬁdent.
    No. SCBD 4552.
    Supreme Court of Oklahoma.
    Jan. 22, 2002.

      Loraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    James A. Beckert, Tulsa, OK, for Respondent.
   BOUDREAU, J.

T1 Complainant, Oklahoma Bar Association, brought Rule 6 disciplinary proceedings against Respondent, Larry Dean Wagener, in a four count complaint alleging 1) client neglect, 2) failure to adequately respond to the Oklahoma Bar Association, 3) misrepresentation regarding the whereabouts of client property and failure to safe-keep that same property and 4) misrepresenting the facts and circumstances surrounding the disappearance of the property entrusted to Respondent.

T2 Respondent and the bar association submitted joint stipulations regarding each of the allegations, which were incorporated into the report of the Professional Responsibility Tribunal. A hearing was held on January 20, 2001 at which Respondent was the only witness. The Tribunal, in keeping 'with the recommendations and request of the bar association, determined that there. was clear and convincing evidence that Respondent violated Counts I, II, III and IV of the Complaint and recommended Respondent be suspended from the practice of law for a period of thirty (30) days.

. 13 We find the evidence establishes clearly and convincingly the allegations in Counts I, II and III of the Complaint; we find the evidence does not support in a clear and convincing fashion the allegations contained in Count IV. For the reasons set out herein, Respondent is suspended from the practice of law for a period of sixty (60) days and ordered to pay the costs of these proceedings in the amount of $891.19 in accordance with Rule 6.16 of the Rules Governing Disciplinary Proceedings, 5 O.S. Ch. 1, App. I-A (RGDP).

I. Count I, The Layman Complaint

{4 In March 1997, Kenneth Layman retained Respondent to represent him in a criminal matter and a related civil suit, stemming from an alleged assault, battery and trespass which occurred between Layman and an acquaintance. Less than a month later, Respondent filed an action on behalf of Layman in Tulsa County district court. However, the relationship between Layman and Respondent rapidly deteriorated over the course of the next year. Respondent acknowledged that he regularly failed to return Layman's phone calls or communicate with him during this time. Respondent testified that these failures were due at least in part to the fact that Respondent and his legal assistant had grown afraid of Layman, as he would frequently yell and curse at them. In February 1999, Layman filed a grievance with the county bar-association alleging Respondent completely neglected his legal matters.

1 5 Prior to the filing of Layman's February 1999 grievance, the district court granted Respondent leave to withdraw from Layman's case as attorney of record, at a hearing in October 1998. Respondent did not mail a copy of his motion to withdraw to Layman, although Respondent testified that his legal assistant notified Layman of its setting a week prior to the hearing. Nevertheless, Layman did not attend the hearing on Respondent's motion to withdraw as counsel. Respondent also failed to mail Layman a copy of the order allowing withdrawal, failed to provide him any information that would allow him to protect his own interests and failed to surrender papers and property belonging to his client. Layman's case was dismissed without prejudice in February 1999. \

T6 In July 1999, the bar association subpoenaed Respondent for his deposition in the Layman matter. The bar directed Respondent to contact Layman in writing and advise him of his withdrawal, the status of the case, the statutory time limit in which to refile the case and to make arrangements to return the client's file. Respondent complied with this directive within two days of the deposition.

The notice provided Layman the opportunity to refile his previously dismissed case.

1 7 Respondent stipulated and the Tribunal found Respondent's conduct violated the Rules of Professional Conduct, 5 0.S.1991 Ch.1, App. 3-A (RPC), Rules 1.1 (competent representation of one's clients), 1.2 (failing to consult with his client concerning the objectives of representation), 1.8 (diligent representation), 14 (communicating with the client), 1.16 (proper withdrawal from representation), 8.4(2) (violate or attempt to violate the RPC). The record supports the stipulations with regard to the Layman matter and we find Respondent clearly and convincingly violated these provisions of the RPC.

II. Failure to Respond to the Oklahoma Bar Association and Office of the General Counsel

18 The Oklahoma Bar Association notified Respondent on April 27, 1999 that the Layman matter was under formal investigation and a response was due within twenty days. After the twenty days elapsed, Respondent requested an extension of time to respond, which was granted until June 8, 1999.. Respondent missed this deadline and did not request or receive any further extensions. Respondent then ignored a call from a bar association investigator and failed to respond to yet another certified letter, .eventually necessitating the issuance of a subpoena for his deposition in July 1999.

'I 9 Respondent stipulated and the Tribunal found that his conduct with regard to Count II of the Complaint clearly and convincingly violated Rule 8.1(b) of the RPC (knowing failure to respond to a lawful demand for information from the bar association) and Rule 5.2 of the RGDP (failure to respond within twenty days to grievance). The record supports the stipulations with regard to Respondent's failure to respond adequately to the Layman bar matter and we find Respondent clearly and convincingly violated these provisions of the RPC and RGDP.

III. The Campbell Grievance

- 110 In May 1995, Howard Eugene Campbell's. estranged girlfriend, Sandra Byrd, contacted Respondent to represent her in a claim against Mr. Campbell for breach of contract and intentional infliction of emotional distress. Respondent filed a suit on Ms. Byrd's behalf and Mr. Campbell was served with a copy of the Petition the next day.

{11 Soon thereafter, Ms. Byrd brought two locked briefcases to Respondent's office. Ms. Byrd informed Respondent that Mr. Campbell told her the briefcases contained cash, jewelry and other valuables in excess of $88,000. Ms. Byrd claimed that $8,000 of the money was hers and had been taken from her by her estranged boyfriend, Campbell, and put in the briefcases. She believed the remainder of the contents belonged to Mr. Campbell. Respondent testified that the briefcases were so light, it was difficult to believe they contained anything of substantial value, however, he agreed to have the cases x-rayed in an effort to determine the nature of the contents. He then took possession of the briefcases.

12 Within days, while the briefcases were still in Respondent's possession, Ms. Byrd and Mr. Campbell apparently reconciled and returned to Respondent's office to demand the return of the briefcases. Respondent informed them that the briefcases were not in his possession and he would have to return them later. Respondent acknowledged at the hearing that this was not the truth. Re spondent explained that he withheld the briefcases because he believed Mr. Campbell was forcing Ms. Byrd to abandon her suit and retrieve the briefcases.

113 Then on June 2, 1995, Respondent's truck was stolen while parked near the Tulsa County courthouse; Mr. Campbell's briefeas-es were inside.

114 Mr. Campbell filed suit against Respondent to recover the value of the contents of the lost briefcases. Respondent paid Mr. Campbell approximately $35,000 to settle the suit. Much of the pre-trial discovery which took place in Campbell's suit against Respondent was included for review in this disciplinary proceeding record. The record does not support or suggest that Respondent converted any funds or valuables in the briefcases for his own use.

115 The bar association presented clear and convincing evidence that Respondent was not candid and honest with his client, Ms. Byrd, nor Mr. Campbell, the owner of the briefcases, when he told them he could not immediately return the briefcases. In addition, the bar association presented clear and convincing evidence showing that Respondent failed to properly safeguard the briefcases placed in his care and they were stolen as a result.

{ 16 Respondent stipulated and the Tribunal found that Respondent's conduct clearly and convincingly violated Rules 1.2 (abiding clients decisions regarding the scope of representation), 1.15(a) (hold property of client's or third persons separate from lawyer's own property), 1.15(b) (promptly deliver client's property to client on client's request), 1.15(c) (separation of property in which attorney and client claim an interest), 8.4(a) (violating the RPC) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) of the RPC. With the exeeption of Rule 1.15(c) of the RPC, the record supports the stipulations that Respondent clearly and convincingly violated these provisions of the RPC.

1 17 With regard to the alleged violation of Rule 1.15(c), the record does not clearly and convincingly show Respondent claimed any interest in the briefcases or their contents, as required by this provision. Accordingly, this provision does not provide a basis for discipline in this case.

IV. Misrepresentations to the Bar Association Regarding the Property and Funds Entrusted to Respondent

118 The bar association alleges that discrepancies between a 1996 deposition given by Respondent in the Campbell suit and a February 2000 interview of Respondent conducted by a bar association investigator amounted to intentional misrepresentation to the bar by Respondent. In February 2000, Respondent told the bar association that he believed his truck and the briefcases had already been stolen when Ms. Byrd and Mr. Campbell came to his office demanding their return. However, when his memory was refreshed by his 1996 deposition testimony in which Respondent acknowledged the briefcases were still in his possession when Campbell and Byrd demanded their return, Respondent admitted to the investigator that his memory of the events was likely better at the time of his deposition four years earlier.

[ 19 There was a similar inconsistency between Respondent's earlier 1996 statements and 2000 statements regarding whether Respondent intended to have the briefcases x-rayed when he accepted possession of them. In 1996, Respondent and Ms. Byrd both made references to Respondent attempting to discern the contents of the briefcases, possibly having them x-rayed. However, in 2000 Respondent said that he did not know why he would have said this, because he did not remember attempting to have them x-rayed or promising to do so. When the bar association investigator pointed out the inconsistency with Respondent's previous statements, Respondent said he had no mem- ' ory of making such a promise and did not believe he would have made such a promise. However, Respondent again acknowledged that his 1996 statements may be more aceu-rate due to the fact those statements were made much closer to the events in question.

{20 The stipulations say that "Respondent could not explain the discrepancies between his April 30, 1996 sworn testimony and his statements to [the bar association's investigator in 2000]." However, Respondent provided some explanation when he admitted that in February 2000, five years had passed since the events in question and his memory of the 1995 events was likely more accurate in 1996, due to the closer proximity of those statements to the actual events in question.

4[ 21 The record supports Respondent's explanation of a memory made unclear with the passage of time just as strongly as it suggests intentional deceit, fraud or dishonesty theorized by the bar association. The bar association simply did not meet its burden with regard to this allegation. Furthermore, Respondent's stipulation (drafted by the bar association) is not a definitive statement of deceit or misrepresentation, but rather a simple acknowledgment of the inconsistencies themselves. As a result, we do not find in the record clear and convincing evidence of misconduct with regard to the allegation contained in this count of the Complaint.

V. Mitigating Circumstances

122 Respondent and the bar association entered into several stipulations with regard to mitigating cireumstances. First, Respondent was admitted to practice law in 1998 and has never before been disciplined for professional misconduct. Second, during the time the Layman and Campbell events happened, Respondent experienced serious family stresses. He was involved in an auto accident, which was followed shortly thereafter by two additional accidents in which Respondent's family members were involved. Respondent's adult daughter was seriously injured in one of the subsequent accidents and the responsibility of caring for her children for a number of months fell upon Respondent. Third, Respondent acknowledges mishandling both the Layman and Campbell matters and realizes his conduct, in both cases, fell below that required of a licensed attorney in Oklahoma. He has expressed his remorse for improper conduct. Fourth, he is also now aware of the steps which must be taken to adequately protect client property and has further implemented proper caseload management, by limiting his practice volume and declining cases outside his area of practice.

1 23 Although not identified as a mitigating factor in the stipulations, we note Respondent timely satisfied the settlement agreement with Mr. Campbell and paid this debt in full. The Tribunal did not identify any factors enhancing discipline for Respondent in this case.

VI. Discipline

124 This Court possesses original and exclusive jurisdiction in bar disciplinary proceedings. Rule 1.1 RGDP. This Court's review is by de novo consideration of the entire record. State ex rel. Oklahoma Bar Ass'n v. Weeks, 1998 OK 88, 112, 969 P.2d 347, 351. The Tribunal's findings, conclusions of law, or recommendations of discipline are not binding on this Court. State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, 914 P.2d 644, 648. "The ultimate responsibility to impose discipline in a case before this court is ours alone." Id.

125 This Court's primary function in bar disciplinary proceedings is not to punish, but rather to protect the public and determine an attorney's continued fitness to practice law. State ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, 848 P.2d 548, 546; State ex rel. Oklahoma Bar Ass'n v. Mayes, 1999 OK 9, 977 P.2d 1073, 1082; See also State ex rel. Oklahoma Bar Ass'n v. Denton, 1979 OK 116, 598 P.2d 663; State ex rel. Oklahoma Bar Ass'n v. Hall, 1977 OK 117, 567 P.2d 975; State ex rel. Oklahoma Bar Ass'n v. Miskousky, 1991 OK 88, 824 P.2d 1090, 1101; State ex rel. Oklahoma Bar Ass'n v. Colston, 1989 OK 74, 777 P.2d 920.

126 We agree with the Tribunal that Respondent's conduct warrants suspension from the practice of law. However, we recommend a sixty (60) day suspension, instead of the thirty (80) days recommended by the Tribunal. Respondent failed to adequately communicate with his client, Layman, throughout the course of representation. Even worse, Respondent failed to notify Layman that he had withdrawn from his case, failed to provide him with any information that would allow him to protect his own interest and failed to surrender papers and property belonging to the client. If it had not been for the directive of the bar association, these failures may have prevented Layman from timely refiling his previously dismissed case.

127 While Respondent's neglect of Layman is a serious matter, his conduct with respect to the Campbell grievance is even more troubling. Respondent failed to properly inventory property entrusted to him by his client. He then made misleading statements to his client concerning the whereabouts of property she had entrusted to him. Finally, he subsequently failed to properly secure that property, which allowed it to be stolen from his car.

€128 Respondent also failed to act with appropriate urgency and regard for the authority of the Oklahoma Bar Association. He failed to timely respond to a number of requests from the Oklahoma Bar Association. Only after we was ultimately subpoenaed did

Respondent begin to cooperate with the bar association.

29 Each of these violations of professional misconduct demands the imposition of discipline. Our review of the previous decisions of this Court reveals no precise parallels to Respondent's conduct in this case. However, this Court has frequently chosen to impose some form of suspension when intentional misrepresentations are made to a client, the court or the bar. See State, ex rel., Oklahoma Bar Ass'n v. Stubblefield, 1988 OK 141, 766 P.2d 979 (misrepresentation in court documents, 30 day suspension); State, ex rel., Oklahoma Bar Ass'n v. Jaques, 2000 OK 57, 11 P.8d 621 (forging notary signature warranted 30 day suspension); State, ex rel., Oklahoma Bar Ass'n v. Lacoste, 1991 OK 51, 813 P.2d 501 (misrepresentation in response to bar grievance warranted 1 year suspension from practice); State, ex rel., Oklahoma Bar Ass'n v. Hall, 781 P.2d 821 (making false - statement with regard to ownership of stock certificates, 1 year suspension from practice).

130 The professional misconduct of Respondent, when balanced against the mitigating factors in his favor, compels us to impose upon Respondent a sixty (60) day suspension from the practice of law. In addition, Respondent is ordered to pay the costs of these proceedings in the amount of $891.19, in accordance with Rule 6.16 of the RGDP.

131 RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR SIXTY (60) DAYS AND ORDERED TO PAY COSTS IN THE AMOUNT OF $891.19.

1 32 HARGRAVE, C.J., WATT, V.C.J., LAVENDER, SUMMERS, and WINCHESTER, JJ., Concur.

33 OPALA, J.,

with whom

HODGES and KAUGER, JJ.,

join, Concurring in Part and Dissenting in Part.

I coneur in the Court's imposition of professional discipline; I dissent from visiting upon this respondent any sanction of less than a ninety (90) day suspension from practice.

      . Respondent's official Oklahoma Bar Association roster address is: Larry Dean Wagener, OBA #15613, 13330 S. Memorial Drive #7, Bixby, Oklahoma 74008.


author: WATT, Vice Chief Justice. SUMMERS, J.,

text:
    2002 OK 10
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Julie Anne KELLEY, Respondent.
    Supreme Court of Oklahoma.
    Feb. 12, 2002.
    Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma Clty, OK, Attorney for Complainant.
    Julie Anne Kelley, Pro Se.
   OPINION

WATT, Vice Chief Justice.

T1 On September 18, 2001, the Complainant, Oklahoma Bar Association (OBA), filed a complaint against Respondent, Julie Anne Kelley, alleging two counts of professional misconduct, pursuant to Rule 6, Rules Governing Disciplinary Proceedings, 5 0.98.1991, Ch. 1, App. 1-A. A hearing was held on November 1, 2001, before a Trial Panel (Panel) of the Professional Responsibility Tribunal (PRT). The OBA and Kelley presented "Agreed Stipulations and Recommendations for Discipline" (stipulations) which became an exhibit in the proceedings. The parties stipulated to a private reprimand as the appropriate discipline in this matter. The charges of misconduct against a lawyer must be established by clear and convincing evidence. See RGDP 6.12(0), 5 0.$.2001, Ch. 1, App. 1-A.

T2 The Panel issued its report on November 27, 2001, adopting the facts contained in the stipulations. The Panel concluded Kelley's conduct violated Rules 1.3, 1.4 and 3.2, Oklahoma Rules of Professional Conduct (ORPC), 5 0.8.1991, Chapter 1, Appendix 3-A, as to Count I of the complaint. As to Count II, the Panel concluded that Kelley violated Rule 5.2, Rules Governing Disciplinary Proceedings (RGDP), 5 0.8.1991, Chapter 1, Appendix 1-A. The Panel found the violations in both counts were established by clear and convincing evidence and constituted grounds for imposing discipline. It recommended the imposition of a private reprimand and the assessment of costs in the amount of $855.73.

count 1

T3 Kelley, an Oklahoma City lawyer, agreed to represent Linda Fowler in a workers' compensation case which was filed initially by the Doolin law firm in Lawton. Kelley appeared on behalf of Fowler at a temporary docket hearing. Kelley advised Fowler on the possibility of settlement of her claim and contacted opposing counsel, Wade Cole, on the matter several times through December, 1999. However, in January, 2000, Kelley began having personal problems and left her law practice. She did not advise Fowler of this change and gave her no forwarding address or telephone number. Over the next several months, Fowler attempted to reach Kelley. She left several telephone messages for Kelley at the office. However, Kelley's former firm did not inform Kelley of Fowler's attempts to reach her. Fowler contacted the Doolin firm which advised her of Kelley's status and gave her a different telephone number. Fowler was unsuccessful in reaching Kelley at the new telephone number.

T4 Vickie Leyja, a lawyer at the Doolin firm, reached Kelley and told her of Fowler's attempts to contact her regarding the settlement. The Stipulations provide that Kelley advised Leyja she would contact Cole about the settlement, but that she made no attempt to contact him or to return Fowler's call. On June 1, 2000, the OBA received a grievance from Fowler against Kelley, complaining of her neglect of the case and her failure to return her calls. In July, 2000, after receiving inquiries from the workers' compensation carrier about settlement and a copy of Fowler's grievance against Kelley, the Doolin firm learned Kelley had done nothing since January, 2000, to pursue the settlement. That firm then contacted Fowler and handled the claim and settlement to completion. Kelley testified it was her understanding that Fowler was not harmed by Kelley's neglect of the case. She stated she believed the settlement was delayed three to four months because of her conduct.

11 5 Kelley's testimony and the Stipulations adopted by the Panel constitute clear and convincing evidence that (1) she was not diligent in her representation, in violation of ORPC 1.3; (2) that she did not keep Fowler reasonably informed about the matter, in violation of ORPC 1.4; and (8) she failed to expedite the litigation consistent with Fowler's interests, in violation of ORPC 8.2. Although Kelley stated her former law firm did not tell her of Fowler's telephone messages, Kelley knew she stopped contacting Fowler and admitted she never talked to her again after January, 2000. Although the subject of settlement had been raised, Kelley knew the settlement was not complete at the time she stopped communicating with Fowler. Fowler remained uninformed for several months about her pending claim with no communication from Kelley. The only attempts at communication between lawyer and client were made by Fowler. Even after learning of Fowler's inquiries and giving assurances to Leyja that she would conclude the settlement, Kelley did nothing to expedite the matter. Kelley's conduct shows neither dili-genee nor promptness in representing Fowler.

COUNT II

16 On July 6, 2000, the OBA mailed a letter to Kelley at her official roster address, advising her of Fowler's grievance. The OBA asked her to write to Fowler within two weeks to answer the allegations in the grievance, and to send a copy of her response to the OBA. At that time, the OBA advised her it was being treated as an "informal grievance". The letter was not returned to the OBA, but Kelley did not communicate with Fowler. On August 11, 2000, the OBA sent another letter to Kelley at the same address, asking her to disclose fully and fairly in writing within twenty days all relevant facts regarding Fowler's grievance. The OBA explained the matter was not opened for formal investigation. However, she was advised the failure to respond "shall be grounds for discipline." Kelley failed to respond to the OBA, and the letter was not returned.

T7 The OBA sent a certified letter to Kelley on September 7, 2000, advising her this was its final request to respond to the grievance. Second and third notices of the letter, returned "unclaimed", were sent to 'Kelley. She was advised that failure to do so within five days "shall be grounds for discipline" and would foree it to seek a subpoena duces tecum, requiring her testimony and production of relevant documents. Kelley failed to respond, and the PRT issued a subpoena for her deposition and production of documents on October 16, 2000. At her deposition, she admitted she failed to communicate with Fowler and that the Lawton firm had completed the settlement of her claim.

T8 Kelley testified that in July, 2000, her OBA membership was suspended for nonpayment of Bar dues and the failure to comply with Mandatory Continuing Legal Education (MCLE) requirements. Her membership has since been reinstated, and she has had no other grievances filed against her. She stated she was receiving a great deal of mail with regard to the suspension at the time of Fowler's complaint. She stated she knew there were letters from the OBA at the post office for her. However, because she believed they pertained to the suspension, she did not pick them up. Finally, she was personally served with the subpoena.

T 9 Although times were difficult for Kelley because of her personal problems and suspension, her testimony and the Stipulations regarding Count II constitute clear and convincing evidence of her violation of RGDP 5.2, which provides that a lawyer's failure to respond within twenty days after service of the grievance "shall be grounds for discipline." She knew the OBA letters were waiting for her, but she chose not to inform herself of their contents. Her belief the letters pertained to the suspension is the only explanation she gave for not retrieving them.

MITIGATION

10 After receiving the subpoena, Kelley appeared for a deposition and has been cooperative with the OBA. It appears to be undisputed that Fowler was not economically harmed by Kelley's neglect of her case. Kelley has received counseling for her personal problems and testified that she has made progress in that regard. She expressed her remorse several times during the November 1, 2000, hearing. She told the Panel that she no longer intends to practice law on a full-time basis. She is now the Dean of Education for Metropolitan College in Oklahoma City, where classes for court reporting, paralegal training and medical transcription are offered. She wants to resolve this disciptin-ary issue to be able to practice law on a part-time basis. She testified she absolutely will open her OBA mail in the future.

DISCIPLINE

T11 The Panel recommended discipline in the form of a private reprimand and the assessment of costs. However, in bar disciplinary cases, this Court exercises exclusive original jurisdiction as a licensing court, not as a reviewing tribunal. State ex rel. Oklahoma Bar Association v. Brewer, 1999 OK 101, 998 P.2d 605. This Court independently determines the appropriate discipline to be imposed. Id. Public cefisure or reprimand is an appropriate punishment when an attorney has neglected a legal matter without affirmative acts of harmful conduct against the client. Id.; State ex rel. Oklahoma Bar Association v. Green, 1997 OK 39, 936 P.2d 947. Moreover, a public reprimand was ordered appropriate discipline for the violation of RGDP 5.2 because a private reprimand would not set a sufficient example to other lawyers not to ignore Bar requests for information concerning grievances. See State ex rel. Oklahoma Bar Association v. Simank, 2001 OK 18, 19 P.3d 860.

- 112 Our de novo reviewlpersuades us that Kelley's conduct in this matter supports a public reprimand for the violations noted, rather than the private reprimand recommended by the Trial Panel of the PRT.

§ 13 Respondent, Julie Anne Kelley, is accordingly hereby publicly reprimanded and is ordered to pay the costs of this proceeding in the amount of $355.73.

RESPONDENT PUBLICLY REPRIMANDED AND ORDERED TO PAY COSTS.

" 14 HARGRAVE, C.J., LAVENDER, OPALA, BOUDREAU, and WINCHESTER, JJ.-concur.

1 15 SUMMERS, J., with whom HODGES and KAUGER, JJ. join, dissenting.

SUMMERS, J.,

with whom

HODGES and KAUGER, JJ.

join, dissenting:

T1 I would privately reprimand the respondent.

      . RGDP 6.12(c):
      (c) To warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence, and at least two of the members of the Trial Panel must concur in the findings.

      . ORPC 1.3. Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.
      : ORPC 1.4. Communication
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
      ORPC 3.2. Expediting Litigation
      A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

      . RGDP 5.2. Filing and Processing of Grievances and Requests for Investigation
      After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete, or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance (or, in the case of an investigation instituted on the part of the General Counsel or the Commission without the filing of a signed grievance, a recital of the relevant facts or allegations) 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. The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall 'make such further investigation of the grievance and response as the General Counsel may deem appropriate before taking any ac- - tion.

      . In her deposition, Kelley testified Cole left the firm representing the workers' compensation carrier as of January, 2000, when she tried to call him about settlement. At the hearing before the trial panel, on November 1, 2000, Kelley did not mention she told Doolin's firm she would contact Cole. She mentioned only that she believed the Doolin firm was handling the settlement of the case.

      . At the hearing on November 1, 2000, Kelley stated she knew of the informal complaint and responded to it. However, the record contains no evidence to support that statement. Stipulation number 27 brovides that the Kelley did not communicate with Fowler or the OBA about the informal grievance.


author: OPALA, J.

text:
    2002 OK 23
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Mark A. COX, Respondent.
    SCBD No. 4623.
    Supreme Court of Oklahoma.
    April 2, 2002.
    Rehearing Denied May 28, 2002.

      Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Murray E. Abowitz, Oklahoma City, OK, for Respondent.
   OPALA, J.

[ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and (2) Is a license suspension for sixty (60) days an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I

INTRODUCTION TO THE RECORD

12 On 23 May 2001 the Oklahoma Bar Association (the Bar) commenced this disciplinary proceeding against Mark A. Cox (respondent), a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings ("RGDP"). The complaint alleges in two counts multiple violations of the Oklahoma Rules of Professional Conduct ("ORPC"). The Bar has since withdrawn its reliance on ORPC Rules 3.3(a)(1), 8.4(a), 4.4, 8.4(c) and 8.4(d); it now rests the two counts solely on ORPC Rules 3.3(a)(4)(B) and 3.4(f). ©

13 On 23 August 2001 a trial panel of the Professional Responsibility Tribunal (PRT) held 'a hearing to consider the charges. At its commencement the trial panel recognized for the record the admission of a document containing the parties' stipulations of fact, conclusions of law, and an agreed disciplinary recommendation. Respondent admitted (by stipulation) that his conduct violates ORPC Rules 3.3(a)(4)(B) and 3.4(f). As for mitigation, the parties agreed that respondent had never before been disciplined (by the Professional Responsibility Commission or by this court) or been the subject of a formal investigation by the Bar's counsel. The parties also agreed that respondent had fully cooperated with the counsel during the investigation and in the PRT proceeding. They recommended that respondent receive a private reprimand. >

T4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties' stipulations). The panel recommended that respondent receive a private reprimand.

II

THE RECORD BEFORE THE COURT PROVIDES - SUFFICIENT - EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

15 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance. Its jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this State's legal practitioners. In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts, in. which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive. In this undertaking we are not restricted by the sceope-of-review rules that govern corrective relief on appeal or in cer-tiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.

T6 The court's duty can be discharged only if the trial panel submits a complete record of the proceedings. Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent on-the-record determination of the facts and (b) the crafting of an appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment of the offending lawyer.

17 Having carefully serutinized the record submitted, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct and of the discipline to be imposed.

IH

FACTS ADMITTED BY STIPULATION

§8 The parties have tendered their stipulations in which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands established. It serves as an evidentiary substitute that dispenses with the need for legal proof of facts that are conceded by the parties' agreement. Stipulations are subject to the approval of the court in which they are entered. We find from the record that respondent's stipulations of facts (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties' tendered stipulations.

A.

Count One-Failure to Promptly Reveal Information to Opposing Counsel Upon Request

19 Respondent admits what is alleged in Count One of the complaint: that he failed promptly to reveal to opposing counsel at the deposition of a witness the existence of an expert witness' notes (which were in respondent's possession}. We reject the parties' stipulation that this conduct violates ORPC Rule 3.8(a)(d)(B). While it is true that respondent did not immediately reveal the availability of his witness' notes, ORPC Rule 3.3(a)(4)(B) does not demand an instant response. Rather, the cited rule requires only that a lawyer promptly reveal the false character of evidence. As recognized by both parties in their stipulations, respondent provided opposing counsel with the requested documents before the deposition hearing came to its end. No evidence of prejudice occasioned by the slight delay is present in this record; rather, respondent fully repaired whatever harm might otherwise have occurred by surrendering the notes before anyone's legal position underwent a change and before any prejudice to opposing counsel could have resulted. Neither the stipulations nor anything else on file provides clear and convincing proof that respondent offended ORPC Rule 3.3(a)(4)(B). He must and hence does stand exonerated of that charge.

B.

Count Two-Influencing Dr. Sternlof to Refrain From Testifying as an Expert Witness

10 Respondent admits what is alleged in Count Two of the complaint: that he asked Dr. Sternlof, a close, personal friend, to refrain from testifying as an expert witness for opposing counsel. Respondent stipulates he told Dr. Sternlof that if the latter did not abstain from testifying, he would present evidence affecting Dr. Sternlofs credibility as a witness and would "dig up dirt" about him. Respondent also acknowledges that he served Dr. Sternlof with a subpoena duces tecum by which he demanded "copies of all things related in any way" to the doctor's alleged previous involvement in a 1980 illegal wiretapping (about which the physician had previously told respondent). Five days after being served with the subpoena, Dr. Sternlof wrote a letter to respondent's opposing counsel requesting that his name be withdrawn as a witness in the case. We accept all of respondent's stipulations-and find by clear and convincing evidence-that this con-duet offends ORPC Rule 3.4(f).

IV

FACTORS TO BE CONSIDERED IN ._ MITIGATION OF THE DISCIPLINE TO BE IMPOSED

T11 Mitigating circumstances may be considered in assessing the appropriate quantum of discipline. We recognize that respondent has no record of prior bar disciplinary offences and that he has cooperated with the Bar's counsel during his investigation and in this proceeding.

y

RESPONDENTS MISCONDUCT WARRANTS A SUSPENSION OF HIS LICENSE TO PRACTICE LAW FOR SIXTY (60) DAYS AND THE PAY MENT OF THE COSTS OF THIS PROCEEDING

112 A license to practice law is not conferred for the benefit of the licensee, but for that of the public. The disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interest of the public, the judiciary, and the legal profession. Disciplinary sanctions serve not only to deter the offending lawyer from committing similar acts in the future, but also operate to put others on notice that departures from ethical norms will not be tolerated. The disciplinary measure to be imposed upon an offending lawyer should be consistent with the quantum of discipline visited upon other lawyers for similar acts of professional misconduct.

113 The parties stipulated and the trial panel recommended that respondent receive a priizate reprimand. For the reasons to be stated below, we reject the recommendation and instead impose (1) respondent's license suspension for a period of sixty (60) days, which is to begin when this opinion becomes final, and (2) an obligation to pay the costs of the investigation, record and proceeding.

1 14 Today's assessment of a more severe discipline than that which was recommended is warranted by the serious nature of the offense. Respondent, who attempted to dissuade his friend, Dr. Sternlof, from giving expert testimony, is guilty of breaching a vital canon of professional acquittal, ORPC Rule 3.4(F). A lawyer must comply with the standards of ethical conduct; the duty to advocate a client's cause is to be discharged within the limits of legitimate, lawful conduct and those practices that are compatible with the nature of a trial as the law's tool in search for truth. Respondent's admitted ethical breach constitutes a grievous assault upon the truth-seeking function of the judicial process and is harmful enough to militate in favor of a license suspension for sixty (60) days.

VI

SUMMARY

¥ 15 The record in this case provides clear and convincing proof of respondent's offense against the rules governing professional ethics. He attempted on numerous occasions to tamper with opposing counsel's witness and to prevent that professional from giving expert testimony. Accordingly,

116 RESPONDENTS LICENSE TO PRACTICE LAW STANDS SUSPENDED FOR SIXTY (60) DAYS, WHICH IS TO BEGIN WHEN THIS OPINION BECOMES FINAL, AND HE IS DIRECTED TO PAY THE COSTS OF THE INVESTIGATION, RECORD AND PROCEEDING IN THE AMOUNT OF $400.28, WHICH SHALL BE DUE NOT LATER THAN NINETY (90) DAYS AFTER THIS OPINION BECOMES FINAL.

17 ALL JUSTICES CONCUR.

      . The record consists of the parties' stipulations, exhibits attached to those stipulations and offered by both parties, a transcript of the hearing ' held before the trial panel of the Professional Responsibility Tribunal and the trial panel's report.

      . The provisions of RGDP Rule 6.1, 5 0.$.1991, Ch. 1, App. 1-A, state in pertinent part: "'The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court." *

      . The provisions of ORPC Rule 3.3(a)(4)(B), 5 0.$.1991, Ch. 1, App. 3-A, state: "when a person other than a client has offered false evidence, the lawyer shall promptly reveal its false character to the tribunal."

      . The provisions of ORPC Rule 3.4(f), 5 O.S. 1991, Ch. 1, App. 3-A, state:
      A lawyer shall not ... (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interest will not be adversely affected by refraining from giving such information.

      . State ex rel. Okla. Bar Ass'n v. Leigh, 1996 OK 37, ¶11, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, 18, 914 P.2d 644, 647; State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, 115, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, § 11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 115.

      . Eakin, supra note 5 at 18, at 648; State ex rel. Okla. Bar Ass'n v. Downing, 1990 OK 102, 112, 804 P.2d 1120, 1122-23; Raskin, supra note 5 at 111, at 265-66.

      . Leigh, supra note 5; Eakin, supra note 5 at 1 8, at 647-48; State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, 18, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass'n v. Stubblefield, 1988 OK 141, 17, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass'n v. Cantrell, 1987 OK 17, 11, 734 P.2d 1292, 1293; State ex rel. Okla. Bar Ass'n v. Brandon, 1969 OK 28, 15, 450 P.2d 824, 827. Because this court's cognizance of disciplinary proceedings cannot be shared with any other institution, every aspect of the Bar's adjudicative process must be revisited by our de novo consideration. The attribute of nondelegable jurisdiction serves to distinguish the' conduct of bar disciplinary functions from trial de novo-a retrial in a different court-or even from de novo appellate review on the record, which stands for an independent, non-deferential examination of another tribunal's record.

      . Eakin, supra note 5 at §8, at 648; Raskin, supra note 5 at 111, at 265. The court's range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a), 5 0.$.1991, Ch. 1, App 1-A, which states: "The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate."

      . Eakin, supra note 5 at ¶ 8, at 648; State ex rel. Okla. Bar Ass'n v. Farrant, 1994 OK 13, 17, 867 P.2d 1279, 1284; Bolton, supra note 5 at I 15, at 344; Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983).

      . The provisions of RGDP Rule 6.13, 5 O.S. 1991, Ch. 1, App. I-A, state in pertinent part:
      Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel's findings of fact on all pertinent issues and conclusions . of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat.

      . Eakin, supra note 5 at 19, at 648; Bolton, supra note 5 at ¶16, at 345; State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, 15, 796 P.2d 627, 630.

      . State ex rel. Okla. Bar Ass'n v. Livshee, 1994 OK 12, 17, 870 P.2d 770, 774.

      . For the provisions of this rule, see supra note 3.

      . - Stipulations, 124.

      . Id. at 126.

      . For the provisions of this rule, see supra note 4.

      . State ex rel. Okla. Bar Ass'n v. Taylor, 2000 OK 35, 133, 4 P.3d 1242, 1255; State ex rel. Okla. Bar Ass'n v. Carpenter, 1993 OK 86, 116, 863 P.2d 1123, 1130.

      . State ex rel. Okla. Bar Ass'n v. Lowe, 1982 OK 20, 119, 640 P.2d 1361, 1363; State ex rel. Okla. Bar Ass'n v. Smith, 1980 OK 126, 121, 615 P.2d 1014, 1018.

      . State ex rel. Okla. Bar Ass'n v. Cummings, 1993 OK 127, 129, 863 P.2d 1164, 1174; State ex rel. Okla. Bar Ass'n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975, 978.

      . Eakin, supra note 5 at 19, at 648; Bolton, supra note 5 at 116, at 345; Perceful, supra note 11 at 15, at 630.

      . Nix v. Whiteside, 475 U.S. 157, 168, 106 S.Ct. 988, 995, 89 L.Ed.2d 123 (1986).

      . Nix, supra note 21, 475 U.S. at 166, 106 S.Ct. at 994. .

      . See State ex rel. Okla. Bar Ass'n v. Andre, 1998 OK 29, 119, 17, 957 P.2d 545, 548-49 (lawyer's license to practice law was suspended for sixty days because the lawyer harassed a witness who gave adverse testimony); In re Reinstatement of Katz, 1992 OK 161, ¶13, 24, 847 P.2d 1385, 1387-88 (lawyer who sent intimidating letters to several witnesses to discourage them from testifying against him was denied reinstatement of his license to practice law); Florida Bar v. Carswell, 624 So.2d 259, 261 (Fla.1993) (lawyer's license to practice law was suspended for 180 days after the lawyer pled nolo contendere to a criminal charge of tampering with a witness); State ex rel. Counsel for Discipline of Nebraska Supreme Court v. Furlong, 262 Neb. 973, 637 N.W.2d 361, 361 (2002) (lawyer who attempted to dissuade a witness from pursuing a complaint against him was disbarred); North Carolina State Bar v. Graves, 50 N.C.App. 450, 274 S.E.2d 396, 400 (1981) (lawyer received public censure for attempting to influence a potential adverse witness not to testify against his client); In re Disciplinary Action Against Dvorak, 611 N.W.2d 147, 150, 153 (N.D.2000) (lawyer's license was suspended for one year because the lawyer sent harassing letters to induce a witness by intimidation into changing her statements); Oregon State Bar, Formal Ethics Opinion 1992-132 (1992) (it is unethical for a lawyer to attempt dissuading from testifying any witness, expert or lay, who stands retained by the opposing side).