author: BOUDREAU, J.

text:
    2003 OK 22
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Monte L. SERATT, Respondent.
    No. SCBD 4719.
    Supreme Court of Oklahoma.
    March 4, 2003.

      Michael W. Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Monte L. Seratt, Tulsa, OK, for Respondent.
   BOUDREAU, J.

T1 Complainant, Oklahoma Bar Association, brought Rule 6 disciplinary proceedings against Respondent, Monte L. Seratt, in a thirteen count complaint alleging client ne-gleet, failure to competently represent his clients, acts of deceit and misrepresentation relating to both endorsing and paying settlement checks, repeated failure to adequately respond to the inquiries of the Oklahoma Bar Association and misrepresentation and deceit regarding his February 2002 deposition testimony at the bar association.

12 Two issues are presented in this disciplinary proceeding. First, was Respondent afforded due process in the disciplinary proceeding. Second, what is the appropriate discipline for Respondent's misconduct.

I. Due Process

T3 Respondent appeared for a deposition at the bar center, in response to a subpoena, on February 6, 2002. At that time, he answered questions regarding a number of the grievances against him. He also promised written responses with regard to twelve client grievances that were not adequately explored at the deposition. Respondent never provided those responses. Accordingly, the bar association issued a subpoena for Respondent to appear at an April 8, 2002 deposition. Respondent did not appear for the April deposition.

T4 On May 9, 2002, the bar association filed a formal complaint against Respondent relating to the clients and grievances discussed at the February deposition, as well as several matters not addressed at the deposition. The thirteen count Complaint was delivered to Respondent's office by certified, restricted mail and signed for by Respondent on May 13, 2002. The complaint was accompanied by a letter from the bar association explaining to Respondent that he had twenty (20) days to file an answer and in the absence of an answer, the charges shall be deemed admitted. Respondent never responded to the formal complaint. Hearing on the complaint was set for July 2, 2002. Respondent also failed to appear at the July 2nd hearing.

T5 The record in this disciplinary action does not conclusively demonstrate that the bar association successfully notified Respondent of the July 2nd hearing date. However, it does reveal the following efforts by the bar to do so. Using a process server, the bar attempted personal service on Respondent of a copy of the complaint shortly after Respondent received the complaint by certified mail in May 2002. The bar then mailed a motion to have the allegations deemed admitted to Respondent's office on June 18, 2002, On June 22, 2002, the bar mailed Respondent the trial panel selection. The bar initially mailed Respondent a copy of the notice of hearing by regular mail. On June 26, 2002, the bar association asked the process server to personally serve the notice of trial panel selection and notice of hearing, but he was unable to do so. In addition to the mailings and attempts at personal service, the bar's counsel repeatedly attempted to reach Respondent by phone, but was always unsue-cessful. On the morning of the hearing, counsel tried phoning Respondent again and found the phone had been disconnected.

T6 At the July 2nd hearing the bar presented evidence in support of its position that Respondent should be disbarred. At the hearing only the bar association investigator testified. Respondent was not present.

T7 Due process must be afforded an accused attorney in bar disciplinary proceedings. See State ex rel. Oklahoma Bar Ass'n v. Minter, 2001 OK 69, 37 P.3d 763, 773. The bar association must allege facts specific enough to put the accused attorney on notice of the charges of misconduct and give him an opportunity to respond to the alleged facts. Id.; see also State ex rel. Oklahoma Bar Ass'n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1143.

Due process in disciplinary proceedings contemplates a fair and open hearing before a trial panel with notice and an opportunity to present evidence and argument, representation by counsel, if desired, compulsory process for obtaining favorable witnesses, information concerning the claims of the opposing party, reasonable opportunity to be heard, and the right to confront the unfavorable witnesses. (This does not mean that a lawyer may thwart discipline by wilfully failing to attend a disciplinary hearing.)

State ex rel. Oklahoma Bar Ass'n v. Lobaugh, 1988 OK 144, 781 P.2d 806, 811.

T8 Respondent unquestionably received notice of the complaint when the bar association mailed him a copy by certified mail. Rule 6.4 of the Rules Governing Disciplinary Proceedings, 5 0.S.2001, Ch. 1 app. I-A (RGDP), requires a Respondent to answer the complaint received within twenty days. In the event a Respondent fails to answer, as Mr. Seratt did in this case, "the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed." Rule 6.4 RGDP; State of Oklahoma, ex rel. Oklahoma Bar Ass'n v. Meek, 1996 OK 119, 927 P.2d 553 (Meek completely failed to respond to the complaint and did not attend the hearing; the allegations were deemed admitted); See also State of Oklahoma, ex rel. Oklahoma Bar Ass'n v. Phillips, 1990 OK 4, 786 P.2d 1242 (Phillips failed to respond to the complaint or appear at the scheduled hearing; he was suspended for three years). Because Seratt failed to respond to the complaint, the bar association proceeded in accordance with Rule 6.4, as if the charges of the complaint were admitted.

T9 Respondent was served with a formal complaint by the bar association detailing the nature of the grievances against him. The bar association made a number of attempts, by various methods, to inform Respondent of the hearing date to determine the discipline to be imposed. Respondent has a responsibility as a member of the bar to inform the bar association of his current address and any changes in his address or location. See State ex rel. Oklahoma Bar Ass'n v. O'Brien, 1980 OK 81, 611 P.2d 650; State ex rel. Oklahoma Bar Ass'n v. Prather, 1996 OK 87, 925 P.2d 28. Respondent cannot thwart discipline by deliberately failing to respond to notices of the hearing date. The bar provided Respondent with the opportunity for fair and open hearing, but he chose not to avail himself of that opportunity. We conclude Respondent received due process in the disciplinary proceeding below.

IL - Grievances

A. Count I, The Lockhead Grievance

110 Mr. Lockhead hired Respondent to represent him in a workers' compensation case after he was injured playing hockey as a professional hockey player. Respondent failed to respond to a motion filed by Lock-head's employer to terminate his temporary total disability benefits. Accordingly, Lock-head's employer terminated his benefits. After securing new counsel, Lockhead subsequently settled his claim. According to Lockhead, Respondent failed to cooperate with his new counsel in effecting the settlement. - Eventually the court allowed the new counsel to endorse the settlement check on Respondent's behalf.

[11 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), and 3.2 (expedite litigation consistent with interests of the client) of the Rules of Professional Conduct, 5 0.8.2001 Ch. 1, app. 3-A (RPC).

B. Count II, Dr. Fahey Grievance

{12 In November of 2000, Respondent received a settlement check for a client which listed Dr. Fahey as a payee for purposes of medical expenses. Dr. Fahey asserted that Respondent did not inform him that he received the check, but instead forged Fahey's signature on the instrument. After Fahey signed a forgery affidavit and reported the matter to the Tulsa County Bar Association (TCBA), Respondent did pay Fahey's bill in September 2001. At his February deposition Respondent asserted that the timing of his payment to Fahey was merely coincidental and unrelated to the filing of the grievance.

113 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.8 (act with reasonable diligence), 14 (communicate reasonably with client), and 8.4(c) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation) of the RPC and Rule 5.2 of the RGDP (general investigation procedure, failure to respond to inquiry is grounds for discipline).

C. Count III, The Yocham Grievance

[14 Ms. Yocham retained Respondent after a 1999 car accident. She asserted in her grievance that Respondent only spoke with her onee and she received no updates regarding her personal injury case. Although ree-ords indicate Respondent filed a petition, pri- or to the lapse of the statute of limitations, the records do not indicate Respondent filed a summons or attempted to serve the responsible party.

115 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.8 (act with reasonable diligence), 14 (communicate reasonably with client), and 1.16 (terminating representation properly) of the Rules of Professional Conduct, and 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

D. Count IV, The Torrico Grievance

T16 Mr. Torrico retained Respondent in November 2000 to represent him in an auto accident case. Respondent failed to show up for two scheduled office meetings and wrongfully claimed attorney fees on medical payments from the client's insurance company, forcing Mr. Torrico to pay some of the medical expenses from his own pocket. Mr. Tor-rico then filed a complaint with the TCBA and the matter was eventually forwarded to the state bar.

{17 Respondent provided a response to the Tulsa County Bar, but failed to respond to the state bar's inquiry. He was eventually served a subpoena and deposed about the allegations of Mr. Torrico's grievance. At that time, Respondent said he did not realize the state bar association required him to make separate and additional responses to those he already forwarded to the TCBA.

{18 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and seope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), and 1.5 (an attorney must charge reasonable fees) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP. ©

E. Count V, The Clute Grievance

19 Ms. Clute hired Respondent in 2001 to represent her in an auto accident case. During the course of the representation, Respondent suggested she rent a car and implied it would be paid for by the insurance company. Ms. Clute rented the car for several weeks, but only a fraction of the bill was ultimately paid by the insurance carrier. In addition, Respondent held Ms. Clute's insurance settlement check for over three months, only forwarding it to her when she filed a grievance with the TCBA.

T{20 Respondent repeatedly failed to answer inquiries from the bar association about Ms. Clute's complaint. At his deposition he acknowledged that he advised Ms. Clute to rent the car because he believed the insurance carrier should pay for it, although he did not have such approval from the carrier. Respondent explained he was not withholding the check from his client, but simply did not want to endorse it as full payment, because he believed it to be insufficient. Respondent also stated he sent Ms. Clute the settlement check after she fired him, not because she filed a grievance.

121 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), 1.5 (an attorney must charge reasonable fees), and 1.15 (safekeeping of property) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

F. Count VI, The Miller Grievance

{22 Ms. Miller engaged Respondent to represent her in an auto accident case. Ms. Miller never met Respondent but only spoke with him by phone. She found him extremely difficult to contact and unresponsive to her concerns about her case. She fired Respondent by phone in 2001, after her doctor recommended she get another attorney. She subsequently filed a grievance against Respondent with the TCBA, which was later referred to the state bar. Respondent did not respond to the state bar association's inquires about the complaint.

€23 When questioned about the Miller grievance at his deposition, Respondent admitted there were some clients he never met until he gave them their money. He provided no explanation for not meeting Ms. Miller and was not able to answer any specific questions regarding her grievance, because he failed to bring her file to the deposition.

€24 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), and 1.5 (an attorney must charge reasonable fees) of the RPC and Rule 5.2 (failure to respond to bar association's ingqui-ry is independent grounds for discipline) of the RGDP.

G. Count VII, The Dr. Cate Grievance

{25 Dr. Cate had several patients who were also clients of Respondent's. Cate alleged that Respondent forged his signature, as well as the signatures of the clients, on settlement checks. Cate complained that Respondent settled two cases in which he failed to pay either the client or his medical fee. In a third case, Cate asserted that Respondent paid the client but failed to pay him. Respondent paid the medical bills after Dr. Cate filed a grievance with the TCBA.

1 26 Respondent answered questions about Cate's grievance at the February 2002 deposition. At that time, Respondent denied that Cate's grievance with the TCBA had anything to do with the timing of his payments to Cate for the clients' medical bills Respondent asserted he received Cate's endorsement authority over the phone from one of Cate's office employees. He testified that his routine practice with Dr. Cate's office was simply to handle endorsement authority by phone. He acknowledged however that he had no written verification of the practice.

127 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.8 (act with reasonable diligence), 14 (communicate reasonably with client), 1.15 (safekeeping property), and 8.4(c) (engage in conduct involving dishonesty) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

H. - Count VIII, the Gulliver Grievance

128 Mr. Gulliver was injured in a car accident and hired Respondent to represent him in 1998. Gulliver wanted Respondent to pursue both a third party tort claim and workers' compensation claim as a result of the accident. Gulliver's workers' compensation claim was denied in May 2000. According to Gulliver, Respondent agreed to appeal the decision, but failed to do so allowing the appeal time to lapse. Gulliver says he has not heard from Respondent since the compensation hearing. He also states he has received no explanation from Respondent regarding his failure to file an appeal.

29 Respondent filed a tort claim on behalf of Gulliver in 2000, but failed to issue a summons.

130 Respondent failed to respond to letters from the bar regarding Mr. Gulliver's grievance and failed to attend a deposition scheduled for April 8, 2002, at which he was to answer questions regarding this grievance. 131 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.8 (act with reasonable diligence), and 1.4 (communicate reasonably with client) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

I. Count IX, Failure to Provide Information Promised in Course of Investigation

32 At the February 2002 deposition, Respondent promised to provide within fourteen days written responses to complaints relating to twelve patients of Dr. Cate, who were also clients of Respondent. Respondent never provided the responses.

1338 The bar association alleged that Respondent's conduct violated Rule 5.2 of the RGDP, which provides that an attorney's failure to respond to inquiry from the bar association regarding investigation of a complaint is in itself grounds for discipline.

J. Count X, Dusenbury Grievance and Insufficient Funds in Trust Account

134 Ms. Dusenbury retained Respondent to represent her. She contacted Respondent in May 2001 asking of the status of her case. According to her, Respondent replied that he had not yet heard from the insurance company. He did not follow up on the call until September 2001, at which time Ms. Dusen-bury says Respondent told her a $50,000 settlement was "due and payable" on the uninsured motorist coverage, but there was a policy stacking issue still unresolved in the case. She contacted Respondent again in December 2001, at which time he told her the money might be in around Christmas. Ms. Dusenbury attempted, but was unable to contact Respondent until mid-January, at which time he said he had just received the $50,000 from the insurance carrier. About a week later, Ms. Dusenbury spoke to Respondent's secretary; the secretary told her that Respondent had in fact received the $50,000 on May 21, 2001, the year before. Ms. Dusen-bury demanded immediate payment from Respondent of the approximately $38,000 owed her. In late January 2002, Respondent provided her two checks, one in the amount of $4500 and another for almost $29,000. The larger check did not clear Respondent's trust account due to insufficient funds. Ms. Dusenbury informed Respondent she would press charges if she was not paid immediately and Respondent wired the money to her account. Ms. Dusenbury filed a grievance against Respondent.

35 At the February 2002 deposition, Respondent signed a waiver allowing bar investigators to access his trust account records. Respondent's trust account records show the Dusenbury check of $50,000 was deposited in May 2001. Although Ms. Dusenbury was entitled to approximately $83,000 of that sum, the November 2001 balance in the trust account reflected just over $14,000. In December 2001, the balance reflected just under $9,000. In January 2002, the trust account records reflect three deposits totaling almost $57,000. At the end of that month, the balance was less than $32,000, an amount insufficient to cover the Dusenbury drafts Respondent issued only a few weeks later,. As a result, the bar concluded that Respondent spent Dusenbury's settlement proceeds and subsequently paid her with other client funds.

T36 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and seope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), 1.15 (safekeeping property), and 8.4(c) (engage in conduct involving dishonesty) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

K. Count XI, the Perry Grievance

137 Mr. Perry hired Respondent after an auto accident in 1999. He had no communication with Respondent for almost two years. In January 2002, Respondent contacted Perry to inform him of a proposed settlement. Perry says Respondent advised him to take the settlement. Perry stated that although he signed paperwork relating to the settlement, he never again heard from the Respondent. Perry later discovered that Respondent had deposited a settlement check for $13,750 in his trust account on January 16, 2002. On February 19, 2002, Respondent's trust account balance was less than $300, as Ms. Dusenbury had been paid from those funds the week before. As of the hearing date in July 2002, Mr. Perry had yet to receive funds from his settlement.

T38 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), 1.15 (safekeeping property), and 8.4(c) (engage in conduct involving dishonesty) of the RPC and Rules 1.3 (acts that bring discredit on the legal profession) and 1.4(b) (where money is entrusted to an attorney for a specific purpose, it must be used for that purpose) of the RGDP.

L. Count XII, The Traylor Grievance

€ 39 Mr. Traylor hired Respondent after a car accident in 2000. He amassed medical costs in excess of $25,000 and lost wages in excess of $20,000 stemming from the accident. Traylor claims Respondent settled his medpay claim for $1000, forged his signature to the check and paid him nothing. In February and March 2001, Respondent settled the liability and uninsured motorist claims for approximately $35,000. Traylor said Respondent again forged his name to the checks and that he received nothing. Records indicate Respondent paid approximately $6000 of Traylor's medical bills, but Traylor still owes over $19,000 in unpaid medical bills. In February 2002, Traylor was still unpaid and Respondent's trust account balance was less than $300.

{40 The bar association alleged Respondent's conduct violated Rules 1.1 (provide competent representation), 1.2 (abide client's wishes concerning objectives and scope of representation), 1.3 (act with reasonable diligence), 14 (communicate reasonably with client), 1.15 (safekeeping property), and 8.4(c) (engage in conduct involving dishonesty) of the RPC and Rules 1.8 (acts that bring discredit on the legal profession) and 1.4(b) (where money is entrusted to an attorney for a specific purpose, it must be used for that purpose) of the RGDP.

M. Count XH, Perjury at February 2002 Deposition

41 Respondent testified at his February 2002 deposition that he waited long periods of time between receiving settlement proceeds and paying his clients in order to negotiate lower medical bills with his clients' medical providers.

1 42 After obtaining Respondent's trust account records, the complainant contends Respondent was actually embezzling money from prior cases to pay a present demand. As a result, the bar alleges that his testimony under oath regarding the benefit of negotiating with medical providers was perjury and clearly not the true reason for the delays and nonpayment his clients experienced.

48 The bar association alleged Respondent's conduct violated Rule 8.4(c) (engage in conduct involving dishonesty) of the RPC and Rule 5.2 (failure to respond to bar association's inquiry is independent grounds for discipline) of the RGDP.

III. Discipline

[44 Due to the application of Rule 6.4 of RGDP, Respondent's failure to respond to the thirteen count complaint results in the allegations of the 'complaint being deemed admitted. The bar association spent the majority of the July 2002 hearing focusing on the deficiencies in Respondent's trust accounting. In the course of the hearing the bar requested Respondent be disbarred for the serious and frequent nature of the offenses.

145 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 83, ¶ 12, 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.

146 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 543, 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.24 920. In fact, at the February 2002 deposition Respondent expressed his own doubts about his ability to effectively represent his clients. The fact Respondent has been unable or unwilling to communicate with the bar or his clients since his February deposition only makes it more clear that he cannot effectively manage his business affairs or his practice.

147 The report of the Professional Responsibility Tribunal focuses primarily upon the misuse of client funds entrusted to Respondent and recommends Respondent be disbarred. The report of the Tribunal specifically refers to the Drs. Fahey and Cate grievances, as well as the Dusenbury, Perry and Traylor complaints. The report of the Tribunal makes no reference to violation of Rule 8.4(c) of the RPC and the corresponding perjury allegation of the bar association. Its recommendation is as follows:

On August 26, 1994, the Respondent was disciplined by private reprimand for neglecting a case to the point that it was dismissed with prejudice, by the court. The allegations in the present case, which are deemed admitted, include the most egregious forms of neglect and misuse of a client's trust. Monte L. Seratt's conduct is wholly inconsistent with the rules of professional conduct and the values of the legal profession. This reprehensible conduct has persisted despite repeated complaints and previous censure and it is therefore the recommendation of this Tribunal that Monte L. Seratt be disbarred.

[48 We conclude that the record of disciplinary proceedings supports a finding by a clear and convincing evidentiary standard that Respondent violated Rule 1.1 (failure to competently represent his clients), Rule 1.2 (duty to consult with clients regarding representation and settlements made on their behalf), Rule 1.3 (failure to exercise due diligence in representing his clients), Rule 14 (failure to communicate with his clients), Rule 1.5 (charging reasonable fee for work performed), Rule 1.15 (failure to account for funds coming into Respondent's possession for clients and medical providers of clients and failure to deliver over such money upon demand by the clients and medical providers), Rule 1.16(d) (take steps upon termination of representation to protect client's interests and cooperate in settlement matters) of the Rules of Professional Conduct and Rule 1.4(d) (attorney receiving funds for a specific purpose must use funds for that purpose) and Rule 5.2 (failure to cooperate in the grievance process itself) of the Rules Governing Disciplinary Proceedings. We do not find clear and convincing evidence of perjury allegedly committed by Respondent at the February 2002 deposition and decline to impose discipline for violations alleged in Count XIII of the complaint.

T49 Respondent's neglect of his clients' affairs and his failure to acknowledge and respond to the authority of the Oklahoma Bar Association are in themselves violations serious enough to warrant Respondent's suspension from the practice of law for a considerable period of time. When these violations are coupled with Respondent's inability to properly care and account for his clients' settlement proceeds or to protect their interests from unyielding statutes of limitations, this Court is given no alternative but disbarment. See State of Oklahoma, ex rel. Oklahoma Bar Ass'n v. McCurtain, 1989 OK 4, 767 P.2d 427 (attorney who neglected client matters, converted or failed to properly account for client property and refused to cooperate with the investigation of those matters was disbarred); See State of Oklahoma, ex rel. Oklahoma Bar Ass'n v. Hardey, 1972 OK 49, 495 P.2d 825 (attorney who settled cases without the knowledge of his clients, forged client signatures to settlement checks and did not properly account for settlement proceeds was disbarred), See State of Oklahoma, ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907 (attorney disbarred for neglecting client's workers' compensation case, misrepresenting the status of the case to the client over an extended period of time, forging an order of the Supreme Court, failing to answer grievances and negotiating with a client not to report misconduct to the bar association).

T50 Respondent provided this Court no mitigating evidence to consider in his favor with regard to the imposition of discipline. We note he was privately reprimanded in 1994 for failure to competently represent a client and is currently under an order of suspension for non-payment of dues.

[ 51 Respondent is disbarred and his name is ordered stricken from the roll of attorneys. In addition, he is ordered to pay the costs of these proceedings in the amount of $2,608.29 within ninety (90) days after this Court's opinion becomes effective.

{52 RESPONDENT IS DISBARRED AND HIS NAME IS STRICKEN FROM THE ROLL OF ATTORNEYS. HE IS FURTHER ORDERED TO PAY COSTS IN THE AMOUNT OF $2,608.29 WITHIN NINETY (90) DAYS AFTER THIS OPINION BECOMES EFFECTIVE.

ALL JUSTICES CONCUR.

      . Respondent's official Oklahoma Bar Association roster address is: Monte L. Seratt, OBA# 12857, 1601 S. Main, Ste. 305, Tulsa, Oklahoma 74119-4470.


source: Caselaw Access Project

author: KAUGER, J.;

license: Public Domain

text:
    2003 OK 23
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert I. MAYES, Jr., Respondent.
    No. SCBD4720.
    Supreme Court of Oklahoma.
    March 11, 2003.

      See also 977 P.2d 1073.

      Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Robert I. Mayes, Jr., Tulsa, OK, Pro se.
   KAUGER, J.;

T1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Robert I. Mayes, Jr., with two counts of professional misconduct involving the mishandling of settlement funds and failure to cooperate in the grievance process. Upon a de novo review, we hold that clear and convincing evidence supports findings of the respondent's misappropriation of settlement funds belonging to two minors and his failure to cooperate in the grievance process. Further, we determine that the respondent's misconduct, his prior disciplinary history and discipline administered in similar cases warrants disbarment and the payment of $653.57 in costs.

AGREED FACTS

12 Both counts arise from the respondent's handling of an estate and his settling of a wrongful death claim on the estate's behalf. Yolanda King (mother/decedent) was killed in a car accident on November 27, 1997, leaving two minor children, Y.K. and D.J.B. On January 15, 1998, the respondent filed a Petition for Letters of Administration on behalf of the mother's estate listing her two children as heirs. Eunice King (King) was appointed administrator on March 6, 1998.

1 3 Thomas G. Seott (Scott) undertook representation of one of the children, D.J.B., filing an application to set bond for an inventory on April 28, 1998. The next month, the probate court ordered King to submit any settlement offers for approval. On August 19 and August 31, 1998, respectively, the respondent filed a petition to settle the personal injury claim and an application for an order approving a settlement of $30,000.00 composed of offers of $10,000.00 from three different insurance companies, Progressive, GEICO and Metropolitan Property and Casualty. The probate court entered an order approving the settlement on August 31, 1998. Between September 1 and September 18, 1998, three checks from the three different insurance companies were deposited in the respondent's trust account for a total of $29,975.00.

4 On September 2, 1998, the respondent filed an application for payment of his attorney fee. The respondent indicated that he had a contingency fee contract with King for one-third of the settlement proceeds and that $30,000 had been deposited in the respondent's trust account held at State Bank, N.A. The probate court approved the requested fee on September 16, 1998.

T5 The respondent deposited almost $30,000.00 to his trust account for the settlement of the wrongful death action. However, no payments were made to either of the decedent's minor children. Further, although the probate court approved his request for fees, no check in the amount of the approved fees was drawn on the trust account. As early as September 80, 1998, there were insufficient funds in the trust account to issue checks of $10,000.00 to each of the minor children. Over the next eight months, the trust account was depleted until it became overdrawn in April of 1999.

T6 On February 28, 1999, we issued our opinion in State ex rel. Oklahoma Bar Ass'n v. Mayes (Mayes I), 1999 OK 9, 977 P.2d 1073, suspending the respondent for six months for failing to supervise a non-lawyer office manager and unwittingly receiving some of his client's personal injury settlement proceeds which were converted or commingled by the office manager. Despite his suspension, the respondent did not formally withdraw from the probate of the deceased's estate. Nevertheless, he may have notified his clients of his inability to practice law. On June 4, a pro se motion for continuance was filed indicating that the respondent was unable to practice law until after August 16, 1999.

T7 Seott filed a second request for an accounting on October 26, 1999, and a hearing was set for November 23°. On the day of the scheduled hearing, the respondent filed another motion for continuance indicating that he had suffered a heart attack and would be unable to work or attend the hearing. The hearing was reset for January 25, 2000, but a review of the pleadings does not indicate the hearing took place.

T8 King filed a final accounting in the deceased's estate on October 20, 2000, which she signed personally and which was notarized by the respondent's secretary. The accounting indicated that: the decedent's estate received $30,000.00 in an insurance check for negligence on August 31, 1998; an expenditure of $9,999.99 as attorney fees to the respondent on September 25, 1998; a cash balance of $19,700.60 existed in the estate as of November 22, 1999, with the balance being on deposit in State Bank, Tulsa, Oklahoma.

9 The respondent's trust account records do not support the representation in the accounting. Three days before the accounting was filed, the respondent's trust account had a balance of $250.00. By October 31, 2000-eleven days after the accounting was filed, the balance had shrunk to $60.61. At no time during this time period did the balance of the account approach $20,000.00 as was represented by the accounting. Further, there was no single withdrawal for attorney fees in the amount of $9,999.99.

T10 On November 28, 2000, the respondent filed a second motion for continuance in the probate action indicating he had diabetes, was participating in dialysis and had undergone surgery. Six months later, Seott filed an exception to the final accounting on behalf of D.J.B. requesting that the accounting be updated and that the respondent should be required to attest to the accounting filed with the court.

{11 The respondent deposited a check from American Airlines, Inc. to Blanche and Robert Mayes for $33,000.00 in his trust account on June 25, 2001. It is unclear whether the check represented the respondent's personal funds or related to his legal practice. Before the deposit, the trust account had a balance of only $60.61. Two days after the deposit, the respondent issued a check payable from his trust account to Seott and D.J.B.'s father in the amount of $9,850.00. The memorandum portion of the check indicated that it was a part of the settlement of the mother's estate. At that time, no funds had been paid on behalf of Y.K., the decedent's second minor child.

T 12 Seott filed a grievance with the Bar Association on June 8, 2000. The grievance and a request for a response were forwarded to the respondent on August 1, 2000. On September 29, 2000, when no answer was forthcoming, the Bar Association sent the respondent a second letter requesting information regarding the grievance and a response within 5 days. The Bar Association granted the respondent an extension to October 24+" for his response on October 4. On October 25, 2000, the respondent sent the Bar Association a letter indicating: 1) that he had not answered previously because he was sick and didn't know a complaint had been filed; and 2) Scott had acted unethically by contacting his clients. There was no substantive response to any questions related to the handling of the personal injury funds or an explanation of why the decedent's minor children had not received their proportionate shares of the wrongful death settlement.

113 Almost a year following the respondent's original notification of the grievance and a request to provide information, the Bar Association's investigator again wrote the respondent asking for information regarding his trust account and the disbursal of funds. The respondent did not answer. Subsequently, on October 29, 2001, and again on January 28, 2002, the Bar Association was forced to issue subpoenaes to the respondent's banking institution to get a financial picture of the facts in the cause.

T 14 On May 10, 2002, the Bar Association filed this cause as a Rule 6 proceeding. Although the respondent relies on his poor health as an excuse for his behavior, he did not interpose a Rule 10 defense. A hearing was conducted before the trial panel on August 23, 2002, at which the respondent and the Bar Association's investigator were the only witnesses. On September 12, 2002, the trial panel filed its report relying on the respondent's testimony and the agreed stipulations of the parties It found clear and convincing evidence to support charges of the mishandling of the trust account and failure to make a full, fair and timely response to the investigation. Although the respondent argued for a suspension of two to three years as an appropriate sanction, the trial panel recommended disbarment and the imposition of costs. The respondent filed no brief in response to this Court's order of September 17, 2002. On November 8, 2002, the Bar Association filed an unopposed application to assess costs. The record was completed on February 11, 2003, with the Bar Association's filing of a copy of the respondent's answer pursuant to our order.

1.

{15 CLEAR AND CONVINCING EVIDENCE SUPPORTS DETERMINATIONS OF MISMANAGEMENT OF A TRUST ACCOUNT AND FAILURE TO COOPERATE IN THE GRIEVANCE PROCESS.

16 The trial panel and the Bar Association agree that clear and convincing evidence supports the charges of mismanagement of a trust account and uncooperativeness in the investigative process by being untimely in responding and neglecting to make a full and fair disclosure. The respondent has not filed a brief in this cause despite our order of October 7, 2002. Nevertheless, the facts stipulated to by the respondent support the alleged charges. Further, a de novo review leaves us convinced that the Bar Association has met the burden of proof necessary to support the imposition of discipline.

117 In disciplinary matters, this Court possesses exclusive original jurisdiction. We are not bound by agreed findings, conclusions of law or recommendations for discipline. Rather, the ultimate responsibility for imposition of professional discipline is ours alone. The Court's review is de novo in considering the record presented as well as the recommendations for discipline. Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.

T18 When money is entrusted to an attorney, the latter's fiduciary duty is to apply the funds strictly to the purpose intended. Three levels of culpability are employed when an attorney mishandles client funds with ascending degrees of seriousness. The least - offensive-commingling-occurs when an attorney fails to keep client moneys in an account separate from that of the attorney. The next serious offense-simple conversion-exists when the attorney uses client funds for a purpose other than that for which they are intended. Finally, an attorney commits misappropriation when the lawyer purposefully deprives a client of moneys through deceit and fraud.

{19 Although it may be difficult to discern between the three levels of misconduct, here it is clear that more is at issue than a mere commingling of client funds. Bank records for the time frame during which the respondent indicated he had deposited the insurance proceeds to his account show that the balance of the account did not approach $30,000.00. Even before the probate court approved the respondent's fee of one-third of the recovery, the balance of the account was well below $20,000.00-the amount it would presumably have required for distribution to the decedent's two minor children. The subpoenaed records disclose that, at the same time the respondent should have been holding funds for the minors, the balance was overdrawn on at least fifteen occasions and the account was assessed insufficient fund fees. The respondent testified that he used the funds to live on and to pay his secretary. Undoubtedly, the facts support a finding of the second level of misconduct-conversion-the use of client funds for a purpose other than that for which they are intended.

120 Finally, although the Bar Association initially may have stipulated that the acts involved were mere conversion, we are convinced that the most serious of money-related misconduct occurred-misappropriation. Misappropriation involves theft by conversion or otherwise when an attorney purposefully deprives a client of money by way of deceit and fraud.

121 Although neither King, the children nor one of their representatives appeared at the hearing and there was no evidence that any client suffered economic harm because of the respondent's acts, documents either prepared by the respondent or with his assistance were filed with the probate court representing that the minors' funds were being held in the bank where the respondent had his trust account. It is apparent that the respondent represented that he was holding monies intended for the two minor children when those funds had been misappropriated to his own use. Further, in conversations with the Bar Association's investigator, the respondent basically admitted that he had stolen the funds.

122 The respondent's own actions have propelled him beyond the level of simple conversion and into the realm of misappropriation. Further, the Bar Association contacted the respondent three times with requests that he respond to the grievance before any response was forthcoming. Even then, the respondent did not provide a meaningful reply. Rather, he attached misleading documents to a four-sentence letter and accused Scott of misconduct for contacting represented parties. A year later, because the respondent failed to comply with two requests for trust account records, the Bar Association was forced to issue two subpoe-naes to his banking institution. Therefore, we determine that there is clear and convincing evidence of the respondent's misappropriation of settlement funds belonging to two minors and his failure to cooperate in the grievance process.

IL.

T23 THE RESPONDENTS MISCONDUCT, HIS PRIOR DISCIPLINARY HISTORY AND DISCIPLINE IN SIMILAR CASES WARRANTS DISBARMENT AND THE IMPOSITION oF COSTS.

$24 The respondent argued at the hearing that disbarment is too severe a punishment for his actions, indicating that a two to three year suspension would be more appropriate. He has not opposed the Bar Association's application for costs. The Bar Association argues, and the trial panel recommended, that the respondent should be disbarred and required to pay costs of the proceeding. We agree.

$25 Discipline is administered to preserve public confidence in the bar. Our responsibility is not to punish but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession. Discipline is imposed to maintain these goals rather than as punishment for the lawyer's misconduct. Disciplinary action ig also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts. Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct. Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.

There can be little doubt that the respondent has brought discredit upon the legal profession subjecting himself to discipline. Discipline in attorney misconduct proceedings with facts similar to those present here has ranged from a public reprimand to disbarment. Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated. Mitigating cireumstances may be considered in evaluating both the attorney's conduct and assessing the appropriate discipline.

$27 Other than the respondent's recognition that he acted badly and his expression of regret, there is little that can be said for the respondent in mitigation. One of the minor children, D.J.B., did not receive payment of the settlement proceeds until almost three years after the respondent deposited them in his trust account and this payment was made only after Scott demanded repeatedly an accounting. To date, the see-ond minor child, Y.K., has received only $4,000.00 of the $10,000.00 he is entitled to receive-payment of this amount was not made until the day of the hearing before the trial panel-almost four years after the respondent deposited the settlement proceeds in his trust account. Restitution, in and of itself, will not mitigate the need for discipline.

T28 On the other hand, at precisely the same time that the respondent was mismanaging trust fund monies here, he was involved in the disciplinary process in a case not wholly unlike this ecause. On February 23, 1999, we issued our opinion in State ex rel. Oklahoma Bar Ass'n v. Mayes (Mayes I), 1999 OK 9, 977 P.2d 1073, suspending the respondent for six months for failing to supervise a non-lawyer office manager and unwittingly receiving some of his client's personal injury settlement proceeds which were converted or commingled by the office manager. Despite his suspension, the respondent did not formally withdraw from the probate of the deceased's estate. Further, the respondent delayed the provision of trust records; issued a number of checks when funds were unavailable; and was not diligent in responding to the grievance inquiries. Finally, the respondent has been suspended both for failing to pay his Bar Association dues and for failure to complete rule-mandated continuing legal education.

{29 Perhaps the most damning single piece of information mitigating against leniency is the special place of trust the respondent held with the decedent's family. Any lawyer, entrusted with a client's funds, must exercise the highest of fiduciary duties. The respondent holds an even closer place of trust and confidence with King-he is her minister.

130 This Court is the ultimate arbiter of appropriate sanctions in bar discipline cases. We may choose to reject or to accept the trial panel's recommendations. Here, the trial panel's suggested sanctions are appropriate. Therefore, we determine that the respondent's misconduct, his prior disciplinary history and discipline administered in similar cases warrants disbarment and the payment of $658.57 in costs.

"*... THE WITNESS: I receive Social Security to live on for $600 a month. I pay $250 a month back to the fund. I'm totally embarrassed about this. I knew Ms. King. She-I'm the minister at her church. ..."

CONCLUSION

131 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court. Every lawyer is presented as a person worthy of competence and honesty in the performance of professional activities. It is our difficult duty to withdraw the license to practice law if necessary to protect the interest of the public, the legal profession and this tribunal. Any other approach would rightly confuse or equate a lawyer's state franchise with a license to cheat the public.

T 32 Although we may sympathize with the respondent's health conditions and the economic situation in which it has placed him, any empathy is offset by the fact that he may well have inflicted the same misery on two minor children who had already lost their mother. Upon a de novo review of the record, we determine that the respondent mismanaged his trust account and failed to cooperate in the grievance process. The respondent's misconduct warrants disbarment and the payment of $658.57 in costs.

RESPONDENT DISBARRED; COSTS IMPOSED.

ALL JUSTICES CONCUR.

      . Rule 1.4, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A provides in pertinent part:
      ... (b) Where money or other property has been entrusted to any attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or set-off for fees against any money or other property of his client coming into his hands for such specific purpose, and a refusal to account for and deliver over such money or property upon demand shall be deemed a conversion. This does not apply to the retention of money or other property otherwise coming into the hands of a lawyer and upon which the lawyer has a valid lien for his services.
      (c) Theft by conversion or otherwise of the funds of a client shall, if proved, result in disbarment. ..." Rule 1.15(b), Rules Governing Professional Conduct, 5 0.$.2001, Ch. 1, App. 3-A provides:
      "... (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property...."

      . Rule 5.2, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1 A, providing in pertinent part:

        "After making such preliminary investigation as the General Council may deem appropriate, the General Counsel shall ... file and serve a copy of the grievance ... upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon expressed constitutional grounds. Deliberate misrepresentation in such response shall itself be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service of the grievance ... or such further time as may be granted by the General Counsel, shall be grounds for discipline...."
      Rule 3.3, Rules Governing Professional Conduct, 5 0.$.2001, Ch. 1, App. 3-A provides in pertinent part:
      "(1) A lawyer shall not knowingly:
      (a) make a false statement of fact or law to a tribunal ..."
      Rule 8.4, Rules Governing Professional Conduct, 5 0.$.2001, Ch. 1, App. 3-A provides in pertinent part:
      "It is professional misconduct for a lawyer to: ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation ..."

      . State ex rel. Oklahoma Bar Ass'n v. Phillips, 2002 OK 86, ¶ 2, 60 P.3d 1030; State ex rel. Oklahoma Bar Ass'n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass'n v. Israel, 2001 OK 42, ¶ 13, 25 P.3d 909; State ex rel. Oklahoma Ass'n v. Smolen, 2000 OK 95, ¶ 7, 17 P.3d 456.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, 5 0.9$.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass'n v. Phillips, see note 3 at 15, supra; State ex rel. Oklahoma Bar Ass'n v. Wolfe, 1997 OK 47, ¶ 1, 937 P.2d 988; State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 1, 895 P.2d 707.

      . Rule 6.16, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A.

      . The respondent admitted all facts as outlined in the Bar Association's complaint except for those contained in two paragraphs-one which related to the deposit of the $33,000.00 check on June 25, 2001, from American Airlines to the respondent's trust account and one regarding his suspension for failure to comply with Rules for Mandatory Continuing Legal Education, 5 O.S. 2001, Ch. 1, App. 1-B and the recommendation for discipline.

      . Evidently, the difference between what would normally be a total of $30,000.00 and the $29,975.00 had to do with one of the insurance companies having made payment through a draft rather than a check resulting in banking charges being assessed against the respondent's trust account.

      . - Application for payment of attorney fee filed on September 2, 1998, providing in pertinent part:
      "... 2. Eunice King entered into a contingency fee contract with applicant concerning the wrongful death action in this case for thirty-three and one-third percent (33 1/3%) of the settlement amount. On August 31, 1998, the wrongful death action was settled in open Court for Thirty Thousand Dollars ($30,000). The money has been deposited into the firm's client trust account held at State Bank, N.A. . 4. WHEREFORE PREMISES CONSIDERED, Applicant Robert Issac Mayes, Jr. prays this Court authorize the release of Nine Thousand Nine-Hundred Ninety-Nine Dollars and Ninety-Nine Cents to him as his rightful, reasonable and lawful attorney fee, from the Thirty Thousand Dollars currently held in Trust in this matter. . . ." [Emphasis supplied.]

      . Rule 9.1, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. I-A.

      . The respondent made a partial payment to Y.K. of $4,000.00 on the day of the hearing before the trial panel.

      . Rule 6, Rules Governing Disciplinary Proceedings, 5 0.8.2001, Ch. 1, App. 1-A.

      . Rule 10.1, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A provides in pertinent part:
      "The term 'personally incapable of practicing law' shall include:
      (A) Suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law ..."
      The respondent has not here and did not in State ex rel. Oklahoma Bar Ass'n v. Mayes (Mayes 1), 1999 OK 9, ¶ 20, 977 P.2d 1073, assert that his health was so deteriorated as to meet the definition of "personally incapable of practicing law" contained within Rule 10.1, this note, supra. Although there may be situations where it is appropriate to consider an attorney's health condition as a mitigating factor, a health condition in itself is not enough to mitigate discipline. See, State ex rel. Oklahoma Bar Ass'n v. Doris, note 34 at ¶ 39, infra.

      . Transcript of proceedings, August 23, 2002, the respondent's remarks to the trial panel, providing in pertinent part at pp. 19-20:
      "... MR. DELASHAW: Mr. Mayes, since you're presently under oath and the-just we discussed, why don't you go ahead and tell us what you'd like us to hear regarding what we're proposing to do here today and what kind of recommendations that we should make to the Supreme Court, based upon all the stuff that we've been hearing.
      THE WITNESS: Yes, sir. I don't think you should disbar me. I don't think you should disbar me. - Three-two-three years is enough. I've learned my lesson. I-I can't work right now because of my dialysis. I have two or three-three times a week. Tuesday, Thursday and Saturday, I have dialysis four- and-a-half hours...."

      . Rule 1.1, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass'n v. Holden, see note 4, supra; State ex rel. Oklahoma Bar Ass'n v. McMillian, 1989 OK 16, 15, 770 P.2d 892.

      . State ex rel. Oklahoma Bar Ass'n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass'n v. Israel, see note 3, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Israel, see note 3, supra; State ex rel. Oklahoma Bar Ass'n v. Bolusky, 2001 OK 26, ¶ 14, 23 P.3d 268; State ex rel. Oklahoma Bar Ass'n v. Dershem, 2001 OK 7, ¶ 12, 21 P.3d 639.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, see note 4, supra; State ex rel. Oklahoma Bar Ass'n v. Wolfe, see note 4, supra; State ex rel. Oklahoma Bar Ass'n v. Holden, see note 4, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Busch, see note 20 at ¶ 43, infra.

      . State ex rel. Oklahoma Bar Ass'n v. Phillips, 2002 OK 86, ¶ 15, 60 P.3d 1030; State ex rel. Oklahoma Bar Ass'n v. Dunlap, 1994 OK 81, ¶¶ 13-16, 880 P.2d 364; State ex rel. Oklahoma Bar Ass'n v. Cummings, 1993 OK 127, ¶¶ 23-25, 863 P.2d 1164.

      . The issuance of overdrawn checks manifests an abiding disregard of the fundamental rule of ethics-that of common honesty. State ex rel. Oklahoma Bar Ass'n v. Busch, 1998 OK 103, 132, 976 P.2d 38.

      . Transcript of proceedings, August 23, 2002, Robert Mayes testifying in pertinent part at p. 44:
      "... MR. DELASHAW: Okay. Mr. Mayes, would you like to offer anything else? Any final remarks?
      MR. MAYES: When I got sick in 1999, I used the money to live on. I'm sorry.
      MR. DELASHAW: You used the money to live on?
      MR. MAYES: Yes. I'm sorry. I paid my secretary out of it...."

      . Transcript of proceedings, August 23, 2002, question of panel member to Bar Association and response providing in pertinent part at pp. 35-36:
      "... MR. HERT: If I remember the opening statement that was made, you were-that the bar association's position was that conversion had been stipulated to by the parties; is that correct?
      MR. LOCKHART: That's correct...."

      . State ex rel. Oklahoma Bar Ass'n v. Busch, see note 20, supra.

      . See, ¶ 8, supra.

      . Transcript of proceedings, August 23, 2002, Tony Blasier testifying in pertinent part at:
      pp. 29-30 "... Q. Can you, in particular, recall a conversation you had with Mr. Mayes about what had happened?
      A. Yes, sir. After the first subpoena duces tecum was served on the bank and the monthly statements, that are Complainant's Exhibit 9, were produced by the bank, I reviewed those records and determined that the trust account balance had fallen below what it should have been.
      I then called Mr. Mayes and we talked about it. I told Mr. Mayes that-that I knew that he realized that we had subpoenaed the bank records and that the bank records had been produced and I believe one of the comments I made to him was-is I'm sure you know what those bank records reveal. And his response was that he knew what the bank records revealed.
      I told him that-that it was obvious that the money had not maintain-had not been maintained in his trust account and that it looked to me like a theft had occurred and he confirmed to me, on the phone, that that was what had happened.
      I told Mr. Mayes that I wanted to give him an opportunity, that if there was anything at all he could say or any evidence he could provide or if there was anything at all he could give me to explain this as being something other than a theft of money, that I wanted to give him that opportunity. And he told me that there was nothing that he could say or nothing that he could produce that would do that. ..."
      p. 35 "... MR. HERT: So he didn't-except for that, there were no other opportunities for him to either cooperate or not?
      THE WITNESS: Well, I would consider his admission to me that there had been a theft to be a certain level of cooperation...."

      . See, State ex rel. Oklahoma Bar Ass'n v. Tully, 2000 OK 93, ¶ 19, 20 P.3d 813 [Even when there has been no grave economic harm to a client, misappropriation may be found when an attorney understands that the money he is utilizing belongs to a client.].

      . The respondent's letter of October 25, 2000, provides in pertinent part:
      "... Regarding the grievance filed against me by Thomas G. Scott, first I am sick and I did not know he had filed a grievance so I did not receive it until you sent me a copy.
      Second, Mr. Scott has been in contact with my client even with me as the attorney of record, and that is against the rules.
      Third, here is the copy of the final report filed with the court.
      If you have any questions please call me...."

      . See 114 and accompanying footnote #13, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014; State ex rel. Oklahoma Bar Ass'n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361.

      . State ex rel. Oklahoma Bar Ass'n v. Cummings, see note 19 at ¶ 19, supra; State ex rel. Oklahoma Bar Ass'n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975.

      . State ex rel. Oklahoma Bar Ass'n v. Patterson, 2001 OK 51, ¶ 29, 28 P.3d 551; State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 0, 914 P.2d 644; State ex rel. Oklahoma Bar Ass'n v. Bolton, 1994 OK 53, ¶ 16, 880 P.2d 339.

      . State ex rel. Oklahoma Bar Ass'n v. Doris, see note 34 at ¶ 38, infra; State ex rel. Oklahoma Bar Ass'n v. Rozin, 1991 OK 132, ¶ 10, 824 P.2d 1127.

      . Rule 1.3, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A provides:
      "'The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."

      . State ex rel. Oklahoma Bar Ass'n v. Parsons, 2002 OK 72, ¶ 21, 57 P.3d 865 [Attorney's improper disbursement from his attorney trust fund of insurance monies received in settlement of client's claims warranted one-year suspension for practice of law.]; State ex rel. Oklahoma Bar Ass'n v. Abbott, 2000 OK 64, ¶ 16, 11 P.3d 1239 [Public censure and payment of costs imposed for negligently commingling personal and trust account funds and failing to respond to the Bar Association's inquiry where the attorney also suffered from depression, acknowledged his wrongdoing and showed remorse.]; State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, ¶ 36, 4 P.3d 1242 [Attorney suspended for thirty days for mishandling insurance settlement proceeds belonging to a physician, failing to properly supervise employees and failing to timely and accurately respond to a grievance.]; State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, ¶ 43, 991 P.2d 1015 [Disbarment was appropriate for an attorney who intentionally misappropriated one client's funds, remiited funds to another client only after grievance had been initiated, made court appearances while intoxicated, and had been convicted of driving under the influence.]; State ex rel. Oklahoma Bar Ass'n v. Stow, 1998 OK 105, ¶ 31, 975 P.2d 869 [Three-year suspension was appropriate sanction for attorney's conversion of client funds, failure to provide timely accounting to Bar, and failure to answer disciplinary complaint.]; State ex rel. Oklahoma Bar Ass'n v. Busch, see note 20 at ¶ 52, supra [Disbarment appropriate sanction for attorney whose misconduct included: unauthorized use of client funds entrusted to attorney for a special purpose, issuing overdrawn checks to client, failing to communicate with clients, and lack of diligence in representing clients.]; State ex rel. Oklahoma Bar Ass'n v. Patmon, 1997 OK 62, ¶ 37, 939 P.2d 1155 [Attorney's payments from client trust account without client's permission, filing of frivolous lawsuits, and failure to properly respond to disciplinary grievances warranted suspension of two years and one day.]; State ex rel. Oklahoma Bar Ass'n v. Gray, 1997 OK 140, ¶ 30, 948 P.2d 1221 [Attorney's misappropriation of client and firm partnership funds for his personal use, and his failure to advise clients from whom he obtained loan to seek advice of independent counsel, warranted disbarment.]; State ex rel. Oklahoma Bar Ass'n v. Briery, 1996 OK 46, ¶ 1, 914 P.2d 1046 [Failing to appear in court after accepting fees, depositing court cost funds in attorney trust account, using funds to pay personal bills, failing to notify client that nothing had been done with case, commingling personal funds with client trust funds, and writing insufficient fand checks warranted suspension for two years and one day.]; State ex rel. Oklahoma Bar Ass'n v. Lavelle, 1995 OK 96, ¶ 1, 904 P.2d 78 [Misuse of settlement funds and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation warranted disbarment.]; State ex rel. Oklahoma Bar Ass'n v. Meek, 1994 OK 118, ¶ 1, 895 P.2d 692 [Commingling and conversion of client funds without misappropriation, and misrepresentations to Bar Association in response to grievance, warrant suspension for one year and payment of costs.]; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK 13, ¶ 15, 867 P.2d 1279 [Converting to different purpose client funds entrusted for specific purpose and knowingly misrepresenting facts to bar association warrants one-year suspension.]; State ex rel. Oklahoma Bar Ass'n v. McManus, 1993 OK 66, ¶ 13, 852 P.2d 727.[Public censure and payment of costs imposed where attorney failed to respond to a grievance, commingled personal funds in a trust account and neglected client matters and the discipline was recommended by both the trial panel and the Bar Association.]; State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1992 OK 40, ¶ 1, 832 P.2d 814 [Failing to keep records of trust fund account, converting client funds, and misrepresenting status of funds to trial court and opposing counsel warrants disbarment and imposition of costs.]; State ex rel. Oklahoma Bar Ass'n v. Herlihy, 1991 OK 123, ¶ 1, 827 P.2d 164 [Conversion of funds from settlement to personal use, failure to deliver those funds to client upon demand, and misrepresenting to court that trust account had been set up warrants disbarment.]; State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1991 OK 88, ¶ 18, 824 P.2d 1090 [Repeated mishandling of clients' funds without intention to steal, making single misrepresentation with respect to payment of client's medical bills, and exhibiting woefully sloppy, neglectful and at times incompetent record keeping constitutes professional misconduct warranting 18-month suspension.]; State ex rel. Oklahoma Bar Ass'n v. Kessler, 1991 OK 81, ¶ 0, 818 P.2d 463 [Commingling of client funds, use of clients' money for purposes other than those authorized, and misrepresentation to trial court that money has been used for its intended purpose, warrants two years and one day suspension.]; State ex rel. Oklahoma Bar Ass'n v. Gasaway, 1991 OK 33, ¶ 0, 810 P.2d 826 [Commingling and misusing client funds and failing to fully and fairly respond warrant one-year suspension.] State ex rel. Oklahoma Bar Ass'n v. Payne, 1988 OK 1, ¶¶ 4-6, 748 P.2d 989 [Failure to deposit client funds in a trust account sufficient to impose a public reprimand and the payment of costs.]; State ex rel. Oklahoma Bar Ass'n v. Moore, 1987 OK 21, ¶¶ 21-22, 741 P.2d 445 [Misappropriation of funds from estates in which attorney served as executor and attorney and negligent mishandling of affairs of clients warrants disbarment with imposition of costs incurred in disciplinary proceeding.]; State ex rel. Oklahoma Bar Ass'n v. Raskin, 1982 OK 39, ¶¶ 22-24, 642 P.2d 262 [Practice of deceit and neglect of clients' legal affairs, and the commingling and conversion of clients' funds, warrants disbarment.]; State ex rel. Oklahoma Bar Ass'n v. Hensley, 1977 OK 23, ¶ 12, 560 P.2d 567 [Attorney suspended for two years on charges of commingling where clients were deprived of their funds for approximately four months.]; State ex rel. Oklahoma Bar Ass'n v. Kamins, 1977 OK 103, ¶¶ 7-8, 568 P.2d 627 [The same discipline was imposed under similar circumstances where the client was deprived of funds for a period of one year.].

      . - State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1997 OK 55, ¶ 15, 938 P.2d 744.

      . State ex rel. Oklahoma Bar Ass'n v. Southern, 2000 OK 88, ¶ 35, 15 P.3d 1; State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, ¶ 33, 4 P.3d 1242.

      . State ex rel. Oklahoma Bar Ass'n v. Raskin, see note 34 at ¶ 19, supra.

      . Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . State ex rel. Oklahoma Bar Ass'n v. Busch, see note 20 at ¶ 42, supra. See also, State ex rel. Oklahoma Bar Ass'n v. Wallace, 1998 OK 65, ¶ 22, 961 P.2d 818.

      . Transcript of proceedings, August 23, 2002, Robert Mayes testifying in pertinent part at p. 20:

      . State ex rel. Oklahoma Bar Ass'n v. Rennie, 1997 OK 108, ¶ 20, 945 P.2d 494; State ex rel. Oklahoma Bar Ass'n v. Butler, 1992 OK 150, ¶ 9, 848 P.2d 540.

      . State ex rel. Oklahoma Bar Ass'n v. Rennie, see note 41, supra; State ex rel. Oklahoma Bar Ass'n v. Wilkins, 1995 OK 59, ¶ 12, 898 P.2d 147.

      . The Bar Association submitted an application to assess costs of $653.57. The costs are itemized and copies of the bills associated with the proceeding are attached to the application. The respondent has not filed a response to the application. He is responsible for the costs of the disciplinary proceeding. Rule 6.16, Rules Governing Disciplinary Proceedings, see note 5, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Holden, see note 4, supra; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK. 13, ¶ 8, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass'n, 1981 OK 12, ¶ 4, 624 P.2d 1049.

      . State ex rel. Oklahoma Bar Ass'n v. Raskin, see note 34 at ¶ 22, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Miskovsky, see note 34 at ¶ 15.


author: HARGRAVE, J.

text:
    2003 OK 24
    Edward MACSUGA, an individual d/b/a Eddie Mack Auto Service, Petitioner/Appellant, v. Johnny MORENO and The Workers' Compensation Court, Respondents/Appellees.
    No. 89,432.
    Supreme Court of Oklahoma.
    March 11, 2003.

      Clifford R. Magee, Tulsa, OK, for Petitioner.
    William J. Anton, Tulsa, OK, for Respondents.
   HARGRAVE, J.

T1 Appeal arising from Court of Civil Appeals de novo review of a Workers' Compensation Court finding of jurisdiction in a case finding the existence of an employment contract.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

12 Edward Macsuga owned an automobile garage from which he operated a number of taxi cabs. Macsuga's house was attached to the shop. Moreno, the claimant, and at least one other man lived at Macsuga's house rent-free, in exchange for doing odd jobs from time to time. Moreno was free to come and go at his leisure and did not punch a time clock, did not wear a uniform, did not have an employee manual, received no wages, and filed no income tax returns. He had no set working hours, and sometimes would just hang around the shop with the guys, watching television and drinking beer. On December 20, 1994, Moreno injured his eye while attempting to remove a tire. Emergency room records reflect that Moreno was identified as an unemployed person who received treatment for a non-work related, non-accidental injury. The record shows that Moreno had been drinking before going to the emergency room. Moreno allegedly told Macsuga that he had been hurt in a bar fight. After the incident, Moreno continued to live at Macsuga's house with the same informal, odd-job arrangement at the garage. He eventually lost the eye.

3 In June of 1996, Moreno moved out of Macsuga's house. He had been given an ultimatum to either get out, or get treatment for his alleged drinking problem. Shortly after leaving Macsuga's house, on July 3, 1996, Moreno filed this workers' compensation proceeding, claiming work-related injury to his eye. On this evidence, the majority of the Court of Civil Appeals concluded that the Workers' Compensation Court correctly found the existence of an employment relationship, and an injury arose out of and in the course of this relationship. Macsuga appeals arguing that the Court of Civil Appeals erred by failing to properly apply a de novo review to the evidence presented in this case.

EMPLOYMENT CONTRACTS

T 4 This Court has held:

When the existence of the employer-employee relationship is an issue before the Workers' Compensation Court, a jurisdictional question is presented and the Supreme Court on review will not accept findings of the court as conclusive, but will weigh evidence contained in the record and independently evaluate law and facts to determine the existence or absence of the relationship.

Cherokee Lines, Inc. v. Bailey, 1993 OK 111, ¶1, 859 P.2d 1106, Beall v. Altus Public School Dist., 1981 OK 93, ¶3, 632 P.2d 400, 401. See also Osmus v. City of Oklahoma City, 1977 OK 88, 568 P.2d 1259, and Brewer v. Bama Pie, Inc., 1964 OK 58, 390 P.2d 500.

T5 Although the Workers' Compensation Act is to be construed liberally in favor of workers it is intended to benefit, Moreno must be held to strict proof that he was an employee of Macsuga's in order to be covered by the provisions of the Act. Cherokee Lines, Inc., v. Bailey, 1993 OK 111, ¶13, 859 P.2d 1106, Beall v. Altus Public School Dist., 1981 OK 98, ¶11, 632 P.2d at 403. An employer-employee relationship "is created by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship." Beall, 18 (quoting Landrum v. Ownby, 290 P.2d 400 (Okla.1955)).

T6 This is a matter where a jurisdictional question is presented. If there exists a valid employer-employee relationship, the Workers' Compensation Court has jurisdiction. This Court, in such matters, does not accept findings of the Workers' Compensation Court as conclusive, but we weigh the evidence contained in the record and independently evaluate law and facts to determine the existence or absence of the relationship. In doing this de novo review, we give no deference to the finding below. We have held:

Under this standard-rather than accept the fact findings of the Workers' Compensation Court as conclusive-we review the entire record, weigh the evidence, and make independent fact findings without deference to the fact findings or to the legal rulings made by the compensation court. The question of whether an employer-employee relationship exists has long been recognized as a jurisdictional fact question subject to independent review.

Garrison v. Bechtel Corp. 1995 OK 2, ¶ 8, 889 P.2d at 277.

In the present matter, we find that the Workers' Compensation Court did in fact have jurisdiction as Moreno has proven that there was an employer-employee relationship.

EVIDENCE SUPPORTING THE EXISTENCE OF AN EMPLOYER-EMPLOYEE RELATIONSHIP

T7 Petitioner testified that he had known Macsuga for ten years and had lived in his house for three years. Moreno testified that in exchange for living in the house he worked on cars owned by Macsuga. These cars were used for taxis and Moreno testified that he and Macsuga kept the cars in working order and that he helped prepare the cars for inspection. Moreno's alleged duties included: performing brake jobs; changing water pumps; changing spark plugs; changing tires; transmission repairs; drive shaft work; and some body work. He testified that when a car came in broken down, he would try to fix it. He used Maecsuga's tools to do this work. Moreno also testified that he was not able to do air conditioning work or carburetor work, and that such work was performed by Macsuga. Moreno testified that his job also included cleaning the garage.

T8 Moreno also testified that he did take other jobs occasionally. These jobs included lawn mowing and roofing work. Moreno was free to come and go at his leisure and did not punch a time clock, did not wear a uniform, did not have an employee manual, received no wages, and filed no income tax returns. He had no set working hours, and sometimes would just hang around the shop with the guys, watching television and drinking beer. Moreno never received a W-2 or 1099 form from Macsuga.

T9 Moreno testified that on December 20, 1994, he and his roommate, Gary Taylor, a man with a similar arrangement with Macsu-ga, were in the process of disposing of tires from the Macsuga's property. The City of Tulsa requested that the tires be removed. Moreno testified that at the time of his injury he was removing a tire from a rim. This tire and rim did not fit on the tire machine, so he was attempting to remove it by hand. In attempting to remove the tire, the tire tool slipped and hit Moreno injuring his left eye. Later that night, Gary Taylor took Moreno to the emergency room where Moreno testified that he was in such pain that he did not remember anyone asking him any questions. He further testified that he was immediately escorted to an examination room when he reached the hospital. His eye was ultimately removed and Moreno now wears a glass eye.

[10 Macsuga testified that prior to allowing Moreno to live in his house, Moreno told him had been living with some men involved in narcotics and he wanted to get out of that situation. Macsuga testified that he allowed Moreno to move into the house rent free and expected him to do no labor. He testified that there was no employment contract between them and that to his knowledge, Moreno never worked on any of his cars. He just allowed Moreno to live in the house rent free and even occasionally gave Moreno a few dollars. Macsuga also testified that Moreno mowed the lawn and did yard work around the house. Macsuga testified that he never filed a W-2 or 1099 for Moreno.

11 Macsuga testified that he also allowed Gary Taylor to live in the house. He said he let him live there for nothing, but let him run his upholstery business out of the shop. He testified that in return for allowing Gary to run his business out of his shop, Gary would do upholstery work on his cabs free of charge. Macsuga stated that living in the house was not part of the deal, he just let Gary live there for free, not expecting anything in exchange.

{12 Macsuga testified that Moreno told him of his injury the day it occurred, but that Moreno gave conflicting stories about how his eye was injured. He testified that Moreno told him that some guy beat him up in a bar fight and then he told him that he had injured his eye working on Gary's tire. Mac-suga testified that Moreno told him it was Gary's tire and wheel that Gary had discarded and that Moreno was trying to salvage the wheel. Macsuga testified that the wheel was not his.

[ 13 Moreno testified that he never worked on Gary's car and that Gary did all such work himself. He further testified that the tire was one of many around the shop and that he had no idea whose tire it was. He doubted if it was Gary's as Gary had previously sold his car. Moreno also testified that he never told Macsuga that he hurt his eye in a bar fight.

ANALYSIS OF TESTIMONY

T 14 We find that the foregoing testimony does show that there existed an employer-employee relationship. Although Macsuga denied any type of employer relationship at trial, it is apparent that Moreno did in fact work for him at least part-time. From Mac-suga's own testimony when asked about Gary Taylor, he admitted that an arrangement existed that required Gary to do some work on his vehicles. Apparently Taylor could also do work for others, but part of his requirements to Macsuga involved upholstery work.

1 15 Moreno was also allowed to work for others. He did do roofing work and mowed lawns for Macsuga as well as others. Keeping Macsuga's small taxi fleet working was probably not a full time job in itself, but when Macsuga needed help, he had two workers very handy. He also testified that he occasionally gave Moreno small "loans" that he never expected to be repaid, as well as paid him to help him with a catering event. From this evidence, we determine that an employment contract existed between Macsuga and Moreno that provided Moreno with free room and partial board in exchange for part-time help around the shop.

T16 At trial, and now on appeal, respondent makes issue of the form filled out at the hospital in conjunction with Moreno's treatment. This form purports to show that Mr. Moreno was not employed and that the injury was neither an accidental injury nor work-related injury, and that this information was garnered from Moreno. Moreno does not remember giving any such information. He testified that he was in too much pain. He testified that Gary might have given the information to the hospital. Macsuga makes much of this hospital admission form. To him, it is the smoking gun that disproves Moreno's claim of employment. We find it to be less persuasive.

1 17 This form was not filled out by Moreno and, in fact, it was a typed document. Moreno testified that he was immediately taken to an examination room upon his arrival in at the hospital. It is possible that Gary Taylor did supply some of the information to the nurse. Macsuga did not produce any witnesses from the emergency room to testify on how the forms were completed normally, completed on this occasion, or to explain the form. Additionally, the report of the treating doctor shows that Moreno told her he hurt his eye working on a tire.

18 Additionally, we find Macsuga's argument that he lets people live in the house for free to be disingenuous. As with his other tenant, Gary Taylor, he was receiving a benefit by allowing Mr. Taylor to live in his house. Taylor was an upholsterer, and he did upholstery work on Macsuga's cars. Macsuga also testified that Gary answered the phone for him at times. From the record, it appears that Macsuga runs his taxi cab leasing company by hiring his workers for room and partial board. He received the work of two employees and only paid them room and partial board. Even if he didn't use their labor on a full time basis, allowing them to do other occasional jobs, he had them on premises at any time to work.

IMPLIED ORAL CONTACT

119 While Moreno's testimony points to the existence of an express oral employment contract, denied by Macsuga, it is also obvious that an implied-in-fact contract existed. The existence and terms of an implied contract are manifested by conduct. 15 0.S. 1991, § 138. "Implied contracts exist where the intention of the parties is not expressed, but the agreement creating the obligation is implied or presumed from their acts, where there are circumstances that show a mutual intent to contract." Jones v. University of Central Oklahoma, 1995 OK 138, ¶7, 910 P.2d 987.

120 From the record, it is apparent that there was a mutual intent to contract in the present case. Moreno was to help out around the shop and in return, Macsuga provided Moreno with a place to live. Moreno did acts around the house and shop that evidenced required duties and, in return, Macsuga allowed him to live in the house, paid all utilities and even loaned Moreno money and allowed him to use his lawn mower to mow other peoples yard.

AVERAGE WEEKLY WAGE

121 The order set Moreno's benefits based upon an average weekly wage of $300.00, the amount alleged in Moreno's Form 3. Macsuga argued that this finding is not supported by competent evidence. We agree. The record is devoid of evidence of the value of the room and board received by Moreno in return for his work on Macsuga's taxi cabs and around the shop. Without such evidence, the Workers' Compensation Court could not set the weekly wage. The portion of the order determining the amount of Moreno's benefit for temporary total disability and permanent partial disability must be vacated, and the case remanded for entry of an order based upon appropriate evidence.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED IN PART, VACATED IN PART AND REMANDED

[22 WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ., CONCUR.

1 23 SUMMERS, J., DISSENTS.


author: HARCGRAVE, J.

text:
    2003 OK 25
    Sandra K. SHIVEL, Petitioner, v. WEXFORD HEALTH SOURCES, State Insurance Fund and Workers' Compensation Court, Respondents.
    No. 92,994.
    Supreme Court of Oklahoma.
    March 11, 2003.

      Jack D. Crews, Eddie L. Carr, Tulsa, OK, for Petitioner.
    Chad Robert Whitten, The Whitten Law Firm, Tulsa, OK, for Respondents.
   HARCGRAVE, J.

T1 The issue on review is whether a psychological overlay is compensable where it arises out of and in the course of a claimant's employment and results from the same incident which caused physical injury, but is alleged by the respondent to not be caused by the physical injury.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

12 Sandra Shivel, worked for a private healthcare - provider, - Wexford - Health Sources, which required her to have contact with prisoners. On April 28, 1998, she was attacked by an inmate and suffered physical injuries to her clavicle, back and neck, for which she received temporary total disability compensation. She had also sought to be compensated for psychological overlay. A doctor was appointed to assess her alleged psychological overlay and to determine whether further benefits and treatment were necessary, while another independent medical examiner determined if further treatment was necessary for the physical injuries.

T3 On the psychological overlay issue, the first doctor reported that the claimant was ready for a "full duty release with permanent restrictions." Since that time, Shivel relocated to Virginia. The employer, based on the doctor's report, moved for termination of temporary total disability. The trial judge supplemented his previous order by requiring the doctor to determine causation with respect to psychological overlay.

T 4 The doctor reported that Shivel's need for psychological treatment was due to the incident itself rather than the physical injury. Based upon this report, further disability benefits and psychological treatment were terminated as "not related, reasonable or necessary to the physical injuries sustained in the accidental injury."

[ 5 The Court of Civil Appeals vacated the order denying claimant's request for psychological treatment in Virginia, and temporary total disability benefits, and remanded the claim for reconsideration of the previously submitted medical evidence. On Certiorari, employer now argues that the psychological injury suffered by Shivel as a result of her on-the-job stabbing, cannot be compensable because the psychological injury did not originate from the physical injury. We find this argument to be unpersuasive.

ANALYSIS

T 6 In Wal-Mart Stores v. Reinholtz, 1998 OK 11, 955 P.2d 223, a rape was found to have arisen out of and in the course of employment. This Court, on the issue of psychological overlay, noted that 85 0.8.Supp. 1992 $ 3(7)(c), the statute in effect at the time of the claimants injuries, provided only that "HiInjury or personal injury shall not include mental injury that is unaccompanied by physical injury." This Court held that the claimants rape and injuries sustained in that rape met the "statutorily required accompaniment of compensable physical injury, which included claimant's injury to the back, and psychological injury exists and resulted from accidental injury." - Wal-Mart Stores v. Reinholtz, 1998 OK 11, ¶ 19, 955 P.2d at 226. Thus, this Court found that claimant's rape resulted in psychological overlay when accompanied with the accidental injury.

T7 The applicable statute in effect at the time of Shivel injury was 85 0.8. Supp.1997 § 3(10)(c), which was amended after the opinion in Reinholtz. It reads:

"Injury" or "personal injury" shall not include mental injury that is unaccompanied by physical injury, except in the case of rape which arises out of and in the course of employment;

Employer argues that under the present facts Shivel is entitled to benefits only for her physical injuries and not for the psychological overlay that respondent contends resulted from the incident itself, rather than the physical injury claimant sustained arising from and in the course of employment.

T8 Here, in holding that the claimant's psychological overlay is compensable, the Court of Civil Appeals relied on the Rein-holtz explanation of the 1992 amendment. In so doing, the Court of Civil Appeals concluded that psychological injury need only be accompanied by physical injury.

19 The employer, argués that, because Reinholtz was a rape claim for which the legislature carved out a specific exception, under that facts of the case at hand, the mental injury sustained by Shivel is not com-pensable. The employer argues that the psychological injury, accompanied by physical injury, should not be compensable unless the psychological injury originated from the physical injury. We find this argument to be unpersuasive.

10 In the present matter, Petitioner was attacked by an inmate and suffered physical injuries to her clavicle, back and neck, for which she received temporary total disability compensation. Thus, Petitioner has satisfied the requirement of 85 O.S.Supp.1998 § 3(10)(c), that her psychological injury was accompanied by physical injury, and hence, her psychological overlay claim is compensa-ble.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT REVERSED.

[ 11 ALL JUSTICES CONCUR.