State Ex Rel. Oklahoma Bar Ass'n v. Smolen , 837 P.2d 894 ( 1992 )

ORDER IMPOSING DISCIPLINE

This matter is before us for imposition of final discipline. Proposed Agreed Stipulations of Fact and Conclusions of Law with Agreed Recommendation for Discipline have been entered into by complainant and respondent. The stipulations and recommendation have been accepted and approved by the Trial Panel of the Professional Responsibility Tribunal (PRT). The parties have filed a joint waiver of briefs and have requested this Court to follow the recommendation of the PRT.

By virtue of a two (2) count complaint and amended complaint respondent was charged with misconduct warranting professional discipline. The stipulations respondent agreed to are substantially as follows:

AGREED FINDINGS OF FACT AS TO COUNT I

1. Between June 6, 1989 and December 28, 1990, respondent loaned $79,304.00 to 161 clients.

2. During this same time respondent earned $1,481,000 on gross receipts of $5,778,000, including client’s share, and represented more than 1,600 clients.

AGREED CONCLUSIONS OF LAW AS TO COUNT I

Respondent’s conduct constitutes grounds for professional discipline and violated the mandatory provisions of Rule 1.8(e), Oklahoma Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A, to wit:

(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to a client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.

AGREED FINDINGS OF FACT AS TO COUNT II

1. On August 11, 1987, in OBAD # 758, SCBD # 3382, respondent was suspended by this Court for eight (8) months for violating provisions of DR 1-102(A)(3) and (4) and DR 9-102(B), Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App. 3 and Rule 1.3 of the Rules Governing Disciplinary Proceedings, 5 O.S.1981, Ch. 1, App. 1-A.

AGREED MITIGATION

1. The loans made by respondent were non-interest bearing. Respondent loaned money for humanitarian reasons to clients who were destitute, without other means and resources or credit to obtain loans for sustenance during the penden-cy of their disability and in many cases could not work because of their injury.

AGREED RECOMMENDATION FOR DISCIPLINE

As discipline respondent should receive a public censure from the Oklahoma Supreme Court.

Our review of the matter indicates respondent voluntarily of his own free will and knowingly agreed to the proposed stipulations and there is a factual basis therefore. No contention was made by the parties that Rule 1.8(e) is unconstitutional. After independent review of the matter we determine respondent has engaged in professional misconduct warranting discipline and that the recommendation of the PRT should be followed.

IT IS THEREFORE ORDERED that the proposed Agreed Stipulations of Fact and Conclusions of Law with Agreed Recommendation for Discipline, be hereby approved and respondent, Donald E. Smolen, upon publication of this Order Imposing Discipline in the official reporter shall stand publicly censured.

IT IS FURTHER ORDERED respondent pay the costs of this matter in the amount of $281.75 within thirty (30) days from the date this order becomes final as a condition precedent to his continued right to practice law.

OPALA, C.J., HODGES, V.C.J., and LAVENDER, SIMMS and HARGRAVE, JJ., concur. ALMA WILSON and KAUGER, JJ., concur in part; dissent in part. SUMMERS, J., dissents.