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State ex rel. Oklahoma Bar Association v. Drummond

Supreme Court of Oklahoma

March 28, 2017




         ¶0 Attorney L. Caroline Drummond pled guilty to one felony count of bringing contraband into a penal institution. Pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings, the Oklahoma Bar Association initiated a disciplinary case. We entered an order of interim suspension and a hearing was held on the limited issues of mitigation and appropriate discipline. Subsequently, the OBA initiated a second proceeding under RGDP Rule 6, alleging violations of the Oklahoma Rules of Professional Conduct. After a hearing before the Professional Responsibility Tribunal, the panel issued a report recommending Respondent Drummond be disbarred. We agree with the panel and find the record supports disbarring Respondent Drummond and imposing costs of this proceeding.

          Gina Hendryx, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant

          Gary A. Rife, Rife, Walters, Stanley & Natarajan L.L.P., Oklahoma City, Oklahoma, for Respondent

          GURICH, V.C.J.

         Facts and Procedural History

         Rule 7 Proceeding

         ¶1 L. Caroline Drummond [1] was employed as counsel for Michael Ross Kettles in connection with Tulsa County District Court Case No. CF-2013-4788. Kettles was incarcerated in the David L. Moss Criminal Justice Center. The pair had an existing relationship, which originated in 1997, when Drummond was Kettles' English teacher at Skiatook High School. In early 2015, the two reconnected on social media and their relationship became more personal.

         ¶2 According to Drummond, Kettles began requesting access to a cell phone. After multiple requests from Kettles, Drummond finally relented. After obtaining a phone from her carrier, Drummond scheduled a meeting with Kettles at the Tulsa County jail facility. As an attorney, she was permitted to have direct contact visits with clients. During their conference Drummond, covertly supplied Kettles with the cell phone and charger. The phone was placed in Drummond's legal file and transferred to Kettles by handing him the folder. Drummond also provided Kettles with cigarettes. The illicit items were subsequently discovered by detention officer Jessica Harris on May 15, 2015. During her confiscation of the contraband, Kettles assaulted Officer Harris to prevent her from confiscating the items.

         ¶3 Tulsa County Sheriff employee Corporal Bradley Philpott initiated an investigation to determine the source of the smuggled objects located in Kettles' cell. Corporal Philpott subpoenaed records from AT&T and had a forensic expert examine the contents of the phone. He also requested an interview with Drummond. After delaying for several weeks, Drummond finally met with Corporal Philpott on June 8, 2015. She confessed to providing Kettles with all of the contraband.

         ¶4 On July 30, 2015, a criminal matter was filed against Drummond in State of Oklahoma v. L. Caroline Drummond, Tulsa County District Court Case No. CF-2015-3921. The district attorney charged her with one felony count of bringing contraband into a penal institution in violation of 57 O.S.Supp. 2012 § 21. On February 23, 2016, Drummond pled guilty to the felony. An order deferring sentencing for two years was filed the following day. Review of the matter is scheduled for February 12, 2018.

         ¶5 On February 25, 2016, the Oklahoma Bar Association presented this Court with a certified copy of an Order of Deferred Sentence in the above-referenced criminal proceeding. A disciplinary case was initiated pursuant to Rule 7.2 of the Rules Governing Disciplinary Proceedings. [2] In accordance with RGDP Rule 7.3, we entered an order immediately suspending Drummond from the practice of law on March 7, 2016. The order further directed Drummond to "show cause, if any, no later than March 18, 2016, why [the] order of interim suspension should be set aside." In response, Drummond filed a pleading waiving any challenge to the interim suspension and requesting a hearing to offer evidence pertaining to final disciplinary action. We issued an order appointing a PRT panel and scheduling a hearing for April 19, 2016, to allow presentation of evidence on the issues of mitigation and appropriate discipline.

         ¶6 Subsequent to the interim suspension, Drummond continued to engage in the practice of law. Testimony indicated Drummond met with a divorce client, Gary Vance, on March 15 and 21, 2016, in preparation for an upcoming mediation. On March 24, 2016, Drummond forwarded correspondence to opposing counsel, her client, and the designated mediator. The letter failed to mention the suspension order, identified Drummond as an attorney, and continued to advocate her client's position in the divorce proceeding. Drummond filed a sworn affidavit in this Court on March 28, 2016, attesting to her withdrawal from "all cases pending in any tribunal." The next day, on March 29, 2016, Drummond appeared for the scheduled mediation with her client, who had driven to Oklahoma City from Pawnee, Oklahoma. After opposing counsel revealed Drummond's suspension, the mediator prohibited her from participating any further in the session. Vance was forced to conduct the mediation without counsel. At no time prior to the March 29 mediation did Drummond inform Vance she had been suspended. [3] An exhibit presented by the OBA indicates Drummond did not even file a motion to withdraw in the Vance divorce matter until April 4, 2016--one week after filing her RGDP Rule 9.1 affidavit in this Court.

         ¶7 A hearing before the PRT was held on April 19, 2016. The panel report recommended Drummond be suspended for a period of one-year, effective from the date of interim suspension. Additionally, the PRT recommended Drummond be monitored by the OBA following reinstatement through the remainder of her deferred sentence. The panel also suggested she participate in the Lawyers Helping Lawyers program. Both Drummond's and the OBA's briefs to this Court endorsed the PRT report and recommendation.

         Rule 6 Proceeding

         ¶8 On September 6, 2016, while the Rule 7 case was pending in this Court, the OBA filed a second proceeding against Drummond. The new case was brought pursuant to Rule 6 and asserted multiple violations of the Oklahoma Rules of Professional Conduct, including, but not limited to: failing to act with reasonable diligence and promptness; failing to properly communicate with her client; commingling client funds with her operating account; misappropriating client funds for her own personal use; failing to maintain a client trust account; acting with dishonesty, deceit and misrepresentation; failing to sufficiently cooperate and respond to the OBA grievances; and engaging in the unauthorized practice of law. The allegations of misconduct in the Rule 6 Complaint occurred prior to Drummond's guilty plea and deferred sentence.

         ¶9 In September or October of 2015, Drummond was hired by Marie Cortez to assist with resolving an attorney fee dispute between Cortez and attorney Duane Riffe. Cortez was the maternal grandmother and legal guardian of minor child A.M. An automobile accident had claimed the life of A.M.'s mother, Samantha Ruvancalba. [4] Riffe originally represented Cortez in the matter. He helped secure insurance settlement proceeds of $25, 000.00 and $50, 000.00, which were payable to A.M. from two separate policies. According to testimony before the PRT, no written attorney client contract was executed by Cortez and Riffe. Riffe asserted an attorney's lien against the proceeds from the $50, 000.00 policy, and the matter was set for hearing in Tulsa County District Court Case No. CJ-2014-612.

         ¶10 On October 13, 2015, an order was filed in the Tulsa County case, which directed payment of attorney fees/costs to Riffe in the amount of $20, 000.00; and the order further directed placement of the $30, 000.00 balance in a "federally insured account at Arvest Bank for the benefit of A.M., a minor." Drummond received the $30, 000.00 settlement check from Riffe on behalf of A.M. The check was payable to both Marie Cortez and Caroline Drummond. In violation of the trial court order, Drummond endorsed the instrument by signing "Marie Cortez by C. Drummond, " and deposited the monies into her law firm operating account. To compound the problem further, Drummond did not promptly tender payment of the funds to Cortez or transfer the money to an account for A.M. Instead she paid personal and business expenses out of her operating account which depleted the monies earmarked for A.M.

         ¶11 On December 7, 2016, Drummond and Cortez opened a trust account for A.M. at Chase Bank. Drummond issued a check for $28, 400.00, payable to Cortez on behalf of the minor child. However, because Drummond had squandered most of the settlement funds, the check was returned due to insufficient funds. [5] Cortez attempted to contact Drummond for several months to inquire about the bounced check, but Drummond largely ignored these efforts. In addition to a charge for the returned check, A.M.'s Chase account began accumulating monthly service fees. [6] On January 28, 2016, Drummond finally deposited $5, 000.00 into A.M.'s Chase account, however, the check was written on Drummond's personal bank account.

         ¶12 In early January 2016, Drummond made a $6, 000.00 wire transfer from the Drummond Law account to an account owned by Cortez' niece, Cynthia Ocha. Cortez testified that she had requested this transfer for the purchase of an automobile. She further indicated that Drummond's transfer of the money was to be kept secret. Acknowledging it would have been unlawful to withdraw any amount from A.M.'s monies without a court order, Drummond attempted to re--characterize the $6, 000.00 as a loan or an advance against a probable personal injury settlement Cortez was expecting in an unrelated personal injury lawsuit, Cortez v. David L. Landers Trucking, LLC. [7] In February 2016, Drummond received a settlement check from the trucking company's claims management agent in the amount of $21, 116.51. Once more Drummond deposited the check into her law firm operating account. [8] Subsequently, a check was made payable to Cortez in the amount of $9, 106.42, representing the client's purported share of the settlement. [9]

         ¶13 Cortez filed a grievance with the OBA on April 11, 2016. The grievance was forwarded to Drummond's official roster address on April 22, 2016. In accordance with RGDP Rule 5.2, the OBA requested a response to the grievance from Drummond within twenty (20) days. Drummond did not submit a timely response as required by Rule 5.2. On May 18, 2016, a second request for a response to the grievance was delivered to Drummond at her official roster address. The certified letter was returned unclaimed. Ultimately, the grievances were served on Drummond by private process server on June 19, 2016. Drummond did not cooperate with the investigation and did not provide a written response to the grievances until after the OBA's Complaint was filed in this case. [10]

         ¶14 In addition to the Cortez grievance, the OBA alleged in its Complaint that Drummond had engaged in the unauthorized practice of law while suspended under this Court's Order of Immediate Suspension filed March 7, 2016. [11] Testimony from Tulsa Police Department Officer Brad Blackwell corroborated the OBA's allegations. Specifically, Officer Blackwell testified that on May 5, 2016, Drummond appeared at the scene of a drug arrest being conducted by officers with the TPD. Officers had detained two suspects. Drummond had been contacted by one of the suspect's mother. She approached the officers and identified herself as an Oklahoma licensed attorney. Officer Blackwell testified that Drummond presented her OBA membership card, a card from the American Bar Association, and her Oklahoma Driver License. Not only did Drummond identify herself as a licensed attorney, but she also questioned the officers about their probable cause for the arrest.

         ¶15 On December 15, 2016, the case was presented to the Professional Responsibility Tribunal. Testimony was taken from five witnesses, including Drummond. Initially, Drummond did not appear for the 9:00 a.m. hearing as scheduled; however, she did appear at 10:13 a.m. [12] All of the witnesses were presented by the OBA, and Drummond failed to present any mitigating evidence, other than her own self-serving testimony. One day after the PRT hearing, Drummond had a cashier's check issued payable to A.M. in the amount of $23, 672.00. There is nothing in the record before this Court to indicate whether the cashier's check was delivered to Cortez or deposited in an appropriate account for A.M.'s benefit.

         ¶16 The PRT filed its report with this Court on January 12, 2017. Therein, the panel concluded Drummond had violated ORPC Rules 1.3, 1.4, 1.15, 5.5 and 8.4. The panel also believed the evidence demonstrated violations of RGDP Rules 1.3 and 5.2. After weighing the testimony and exhibits, the PRT recommended Drummond be disbarred. The OBA filed its Brief in Chief on February 1, 2017. Respondent Drummond did not file an answer brief.

         Standard of Review

         ¶17 As we have announced in prior decisions, "[t]he ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with [this Court] in the exercise of our exclusive original jurisdiction in bar disciplinary matters." State of Okla. ex rel. Okla. Bar Ass'n v. Cox, 2011 OK 73, ¶ 10, 257 P.3d 1005, 1008 quoting State of Okla. ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21. Factual and legal determinations of the PRT are not binding on us, and any recommendations are merely advisory. Id. We must ensure the OBA has established charges of misconduct by clear and convincing evidence. State of Okla. ex rel. Okla. Bar Ass'n v. Mansfield, 2009 OK 31, ¶ 14, 350 P.3d 108, 113.

         ¶18 RGDP Rule 7 provides a mechanism for conducting disciplinary proceedings on a summary basis. This provision is invoked when a lawyer "has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer's unfitness to practice law." RGDP Rule 7.1. It is commenced by submission of certified copies of the conviction or deferred sentence to the Chief Justice. RGDP Rule 7.2. A deferred sentence is deemed conclusive evidence of an attorney's commission of criminal act(s) in a disciplinary case initiated under RGDP Rule 7. Id.; see also State of Okla. ex rel. Okla. Bar Ass'n v. Kerr, 2012 OK 108, ¶ 3, 291 P.3d 198, 199.

         ¶19 As in other bar disciplinary matters, we review each aspect of a Rule 7 proceeding de novo. State of Okla. ex rel. Okla. Bar Ass'n v. Cooley, 2013 OK 42, ¶ 4, 304 P.3d 453, 454. A Rule 7 case requires our determination of two principal issues: 1) whether an attorney's conviction(s) or deferred sentence(s) demonstrate an unfitness to practice law, and if so, 2) the appropriate level of discipline based on all facts and circumstances. Id. ¶ 2, 304 P.3d at 454. RGDP Rule 7.3 requires us to immediately issue an order suspending the attorney on an interim basis. Rule 7.3 further provides that upon a showing of good cause, this Court may set aside the order of temporary suspension.

         Rule 7

         ¶20 Our task in Rule 7 proceedings is to evaluate the particular criminal acts to determine whether they demonstrate an unfitness to practice law, and if so, impose the appropriate discipline. Implicitly, the order of interim suspension carries with it a finding of unfitness to practice law; however, we are obliged to again weigh the criminal conduct, ...

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