Summary
The Oklahoma Supreme Court reviewed a bar disciplinary proceeding involving Douglas Mark Gierhart's handling of estate assets and a minor's settlement funds. The court found clear and convincing evidence of violations involving client communication, safekeeping and misappropriation of property, diligence, and dishonest conduct. Gierhart was suspended from practicing law for two years and one day and ordered to pay costs.
Topics
Practice areas
Questions Presented
- Whether the Oklahoma Bar Association proved by clear and convincing evidence that Gierhart violated the Oklahoma Rules of Professional Conduct and Rules Governing Disciplinary Proceedings in his handling of the Felty estate.
- Whether Gierhart misappropriated Felty estate funds by directing an estate check into his personal account and by retaining funds after an order approving his fee was vacated.
- Whether Gierhart violated professional-conduct rules by failing to communicate with estate representatives and failing to promptly deliver estate funds and files.
- Whether Gierhart violated professional-conduct rules by mishandling Madison Aelmore's court-ordered settlement funds.
- What discipline was appropriate in light of the misconduct, mitigating circumstances, and prior disciplinary decisions.
- Whether the costs of the disciplinary proceeding should be assessed against Gierhart.
Holdings
- In a bar disciplinary proceeding, the Oklahoma Supreme Court independently reviews the evidence de novo and determines whether the Oklahoma Bar Association proved the alleged misconduct by clear and convincing evidence.
- Gierhart violated Rules 1.4 and 1.15(d) of the Oklahoma Rules of Professional Conduct by failing to properly communicate with the administratrix and heir regarding the final account and hearing and by failing to promptly deliver estate funds and files.
- Gierhart misappropriated Felty estate funds in violation of Rule 1.15 by directing an estate check to be endorsed to him for personal use and by retaining $18,548.21 after the order approving his fee was vacated and the court ordered turnover of estate funds.
- Gierhart violated Rule 8.4(a) by directing an employee to issue an estate check payable to herself and endorse it to him, and violated Rule 8.4(c) by misrepresenting the purpose and recipient of the funds with the requisite bad intent.
- Gierhart violated Rules 1.3, 1.4, 1.15, 1.15(f), 8.4(a), and 8.4(c) by failing to comply with the court's order governing Madison Aelmore's settlement funds, misappropriating the funds, failing to communicate with the beneficiary and guardian ad litem, and using the funds as collateral for a personal loan.
- A suspension of two years and one day is appropriate for Gierhart's totality of misconduct, including multiple instances of misappropriation, in light of the mitigating circumstances and disciplinary precedents.
- Gierhart must pay $4,460.06 in disciplinary costs within ninety days after the opinion's effective date.
Key quotations
“We hold there is clear and convincing evidence that the totality of Respondent's conduct warrants suspension for two years and one day.” (¶ 0)
“We review the evidence de novo to determine whether the Bar has proven its allegations of misconduct by clear and convincing evidence.” (¶ 4)
“Our goals in disciplinary proceedings are to protect the interests of the public and to preserve the integrity of the courts and the legal profession, not to punish attorneys.” (¶ 5)
Factual background
Gierhart represented the estate of an intestate Oklahoma decedent and handled estate funds through his trust account. He directed an estate check for $2,725 to be issued to an employee, endorsed the check, and deposited it into a personal account; he also filed an inaccurate final account, sought and temporarily obtained attorney fees without proper notice, failed to deliver estate funds and files promptly, and ultimately used borrowed money and fees from unrelated matters to replenish estate funds. In a separate matter involving a minor's settlement, he deposited less than the court-ordered amount into a certificate of deposit in his own name, failed to provide the bank with the court order, used the certificate as collateral for a personal loan, and did not contact the beneficiary when she reached majority.
Procedural history
The Oklahoma Bar Association filed a formal disciplinary complaint alleging three counts of professional misconduct. After a hearing, the Professional Responsibility Tribunal found by clear and convincing evidence that Gierhart violated specified Oklahoma Rules of Professional Conduct and Rules Governing Disciplinary Proceedings and recommended a two-year-and-one-day suspension. The Oklahoma Supreme Court reviewed the matter de novo, adopted the recommended suspension, and assessed costs.