STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DURLAND

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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DURLAND
2003 OK 32
66 P.3d 429
Case Number: SCBD-4334
Decided: 03/18/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
JACK R. DURLAND, JR. Respondent.

BAR DISCIPLINARY PROCEEDING

¶0 Respondent, while acting as a co-trustee of a relative's estate, sent co-trustee forged bank documents to make it appear that the funds were in certificates of deposit. These funds had been deposited into attorney's operating account. The trial panel recommended that respondent be disbarred. We agree.

RESPONDENT IS DISBARRED AND HIS NAME IS
ORDERED STRICKEN FROM THE ROLL OF ATTORNEYS.
RESPONDENT ORDERED TO PAY COSTS OF $3,829.61.

Dan Murdock, General Counsel, Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
Darquita L. Maggard, DURLAND & MAGGARD, Oklahoma City, Oklahoma, for Respondent.

HARGRAVE,

¶1 Disciplinary proceedings were initiated against respondent, Jack R. Durland, Jr., by Complainant, the Oklahoma Bar Association, which in substance charged respondent with converting funds for his own use from a trust [66 P.3d 429] under which he served as co-trustee, thus violating his fiduciary duty. The Oklahoma Bar Association further alleged that respondent made misrepresentations to William T. Durland and Mrs. Pederson stating that the money was being invested in Certificates of Deposit. When pressured about the Certificates of Deposit, respondent sent bogus certificates to Mr. Durland and Mrs. Pederson. Finally, the Bar alleges that respondent failed to provide a full and fair response to the merits of the grievance filed against him. The Professional Responsibility Tribunal (PRT) found respondent guilty of misconduct and recommends disbarment. We, likewise, find misconduct that warrants discipline. We disbar respondent.

STANDARD OF DETERMINATION IN BAR DISCIPLINARY PROCEEDINGS

¶2 In State ex rel. Oklahoma Bar Association v. Miskovsky,

In disciplinary matters we are a licensing court acting in the exercise of our exclusive jurisdiction. State ex rel. Oklahoma Bar Association v. McMillian,

Miskovsky

With these principles in mind we turn to a discussion of the misconduct charged.

FACTS OF MISCONDUCT

¶3 Judith Pederson and Respondent were trustees of their uncle William T. Durland's trust. This trust contained more than $400,000.00 in real property stocks and cash. William T. Durland lived with Mrs. Pederson and she paid the personal bills for her uncle out of the trust. Respondent was responsible for the investments, taxes and other aspects of the trust. The cash assets of the trust were originally placed in a Merrill-Lynch account. Mrs. Pederson became aware that funds had been diverted from this account. Respondent assured Mrs. Pederson that the funds had been moved into certificates of deposit with Boatmen's bank, and that the cash was earning higher interest. Respondent sent several letters to Mrs. Pederson and William T. Durland asserting that the funds had in fact been moved. Respondent admitted to sending these letters.

¶4 Mrs. Pederson sought copies of the Certificates of Deposit and repeatedly asked for copies from Respondent. Respondent was not eager to send any documents, and when Mrs. Pederson finally received copies of these documents from the Respondent, she took the certificates to the bank and discovered that they were bogus. Respondent acknowledged that there were no certificates, but that the trust had "loaned" the money to Respondent's professional corporation. Respondent stated that he was close to his uncle and had discussed with him the necessity of the trust lending the funds to him. The uncle did not recall any such agreement. We find that Respondent's falsifying of the certificates of deposit to be proven by clear and convincing evidence. Having found this action proven, we decline to address any of the other issues presented, as this act clearly warrants discipline.

DISCIPLINE

¶5 In Miskovsky,

The purpose of a disciplinary proceeding is not to punish the lawyer, but to inquire into his continued fitness to practice with a view to safeguarding the interest of the public, the courts and the legal profession. State ex rel. Oklahoma Bar Association v. Raskin,

¶6 This conduct is a violation of the Oklahoma Rules of Professional Conduct, 5 O.S. Supp. 1988, Ch. 1, App. 3-A, Rules 8.4(b) and (c), which provide respectively, it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation. . . ."

¶7 Fraud and misrepresentation by an attorney toward his client are serious forms of misconduct. Although he was not in a lawyer-client relationship with his relatives, he was in a relationship of trust which he betrayed over an extended period of time. If the situation had involved a lawyer-client relationship, the discipline here would surely be disbarment.

¶8 In Oklahoma Bar Association v. Thomas,

Fraud and misrepresentation by an attorney toward his client are serious forms of misconduct. State ex rel. Oklahoma Bar Association v. Brown,

¶9 Additionally, in Oklahoma Bar Association v. Moore,

¶10 Subsequently, the IRS contacted the heir and informed her that $50,268 in estate taxes were due plus $18,506.19 in interest and penalties, and there was also a $239.60 bad check charge for a check submitted by Moore. Investigation revealed that the Oklahoma estate taxes had not been paid and $56,002.82 was owing for taxes plus $13,140.73 in interest. The evidence at trial also revealed that Moore, personally or through his office, had provided a fraudulent tax release to the heir showing the Oklahoma taxes to have been paid. The heir eventually had to mortgage the property passed to her in the estate to pay the taxes. Moore eventually paid his client what was owed her.

¶11 In another matter, Moore admitted "borrowing" some $484,876.00 from another estate, a good portion of which was clearly shown to have gone for Moore's personal purposes. Moore's defense on this count was that his two coexecutors in the estate had acquiesced to his actions and that they had told him that the beneficiary who was to receive the cash assets of the estate also consented to his use of the funds.

¶12 This Court found that coexecutors acquiesced neither to the misuse of funds nor to Moore's signature of their names to checks drawn on the estate account. We found that the evidence supported the trial tribunal's conclusion that the names of Moore's coexecutors on checks drawn on the [66 P.3d 431] estate account were, in several instances, forgeries.

¶13 In the present matter, Durland's actions were no less severe than those committed in Moore and Thomas. Durland's acts involved misrepresentation, deceit and fraud. These acts are reprehensible and are the type from which the public needs protection. In State v. Raskin,

Our task in cases such as this is to protect the public and to preserve the public confidence in the legal profession and in the judiciary that licenses them. The relationship between a lawyer and a client calls for the highest degree of integrity and fidelity. Nothing less can be tolerated. Lawyers stand licensed by the Supreme Court for the practice of their profession. The maintenance of strict integrity among the members of our bar is one of this court's constitutional responsibilities. Every licensed lawyer is presented to the public as a person worthy of confidence in the performance of all professional activities. If he should become unfit, it is our duty promptly to withdraw the endorsement for the immediate protection of the public.

¶14 Respondent also failed to provide full and complete information directed toward the merits of the investigation thus violating Rules 8.1(b) and 8.4(d) and Rule 5.2 of the RGDP. Respondent repeatedly failed to provide the required response. Even though Complainant's motion to compel production of documents was granted and ordered by the Tribunal, Respondent continued to fail to comply and produce the requested documents or information including the day of trial.

¶15 We have also recognized that mitigating evidence or circumstances may be considered in arriving at what is the appropriate discipline. State ex rel. Oklahoma Bar Association v. Raskin,

¶16 Although mitigating evidence may persuade us in cases involving lesser forms of misconduct, we believe the actions involved here, the forged certificates of deposit, go to the heart of respondent's fitness to practice law. No less severe punishment is warranted on this record.

¶17 Accordingly, we order that respondent be disbarred and his name stricken from the roll of attorneys. Further, the costs associated with this disciplinary proceeding in the amount of $3,829.61 shall be borne by respondent. They are to be paid within 90 days from the date this opinion becomes final.

RESPONDENT IS DISBARRED AND HIS NAME IS
ORDERED STRICKEN FROM THE ROLL OF ATTORNEYS.
RESPONDENT ORDERED TO PAY COSTS OF $3,829.61.

¶18 CONCUR: WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, JJ.