State ex rel. Oklahoma Bar Ass'n v. O'Brien

State ex rel. Oklahoma Bar Ass'n v. O'Brien
1980 OK 81
611 P.2d 650
Decided: 05/27/1980
Supreme Court of Oklahoma

STATE OF OKLAHOMA EX REL. OKLAHOMA BAR ASSOCIATION, COMPLAINANT,
v.
DAVID N. O'BRIEN, RESPONDENT.

Disciplinary proceeding pursuant to the Rules of the Oklahoma Bar Association, 5 O.S. 1971, Ch. 1, App. 1, Art. 9, § 2 , Andrew Hamilton, Trial Authority.

¶0 The respondent failed to communicate with his client, or to leave a forwarding address where he could be reached, which necessitated that the client employ additional counsel and purchase another transcript.

RESPONDENT TO BE PUBLICLY REPRIMANDED. INDEFINITELY SUSPENDED FROM THE PRACTICE OF LAW PENDING REIMBURSEMENT OF CLIENT.

Doyle W. Argo, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

HODGES, Justice.

¶1 This proceeding was initiated by Betty J. Jones, the aunt of George R. Fuller, a convicted felon, because of the failure of the attorney, David N. O'Brien, to communicate with his client concerning Fuller's representation.

¶2 O'Brien had accepted $500.00 of a proposed $1,000.00 fee for representing Fuller in an action for post-conviction relief. O'Brien sought relief before the district court and the Court of Criminal Appeals, both of which denied the application. However, O'Brien failed to notify Fuller's relatives of the denials, and they were forced to hire other counsel and pay for the preparation of another transcript.

¶3 A complaint was filed with the Bar Association by Betty J. Jones, alleging that O'Brien neglected a legal matter entrusted to him; failed to seek the lawful objectives of his client through reasonably available [611 P.2d 651] means; and failed to carry out the contract of employment entered into with the client for professional services, thereby violating Canons 6 and 7.

¶4 The trial authority was unable to locate O'Brien, and the hearing was held in his absence.

¶5 This Court has often held that the primary purpose of disciplinary proceedings is not to punish the attorney, but to protect the public.

¶6 Although the Code of Professional Responsibility does not contain a specific provision concerning the failure of a lawyer to communicate with his client,

¶7 The complainant Bar Association asserts that had it been able to locate the lawyer the complaint could have been disposed of initially with no further action. The fact that he was inaccessible to not only his client, but to the Bar Association aggravated the situation. It is imperative that the Bar Association maintain a current address for its membership, and it is the duty of every member of the Bar to promptly notify the Association when a change of address occurs. Otherwise, matters such as this cannot be satisfactorily dealt with. The public is thus left unprotected and the Association paralyzed when it cannot help the client to locate the attorney.

¶8 We find that the respondent, David N. O'Brien, should receive a public reprimand and be taxed with all costs of this proceeding. Unless the costs are paid within thirty days, the respondent shall be suspended from the practice of law in the State of Oklahoma.

¶9 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, BARNES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

¶10 OPALA, J., not participating.

Footnotes:

1 This Court was unable to locate him to order that he respond on appeal.

2 State v. Hall, 567 P.2d 975 (Okl. 1977).

3 The Rules of the Oklahoma Bar Association, 5 O.S. 1971, Ch. 1, App. 1, Art. 9, § 2 provides:

"The enumeration herein of certain categories of misconduct as grounds for discipline shall not be all-inclusive nor shall the failure to specify any particular act of misconduct be a tolerance thereof by this Court."

4 Spindell v. State, 13 Cal. 3d 253, 118 Cal. Rptr. 480, 530 P.2d 168, 173 (1975); In re Trask, 53 Hawaii 165, 488 P.2d 1167, 1170 (1971). See also Annot., "Failure to Communicate with Client As Basis For Disciplinary Action Against Attorney," 80 A.L.R.3d 1240 (1977).