State Ex Rel. Oklahoma Bar Ass'n v. Wolfe

*429HODGES, Justice.

I. PROCEDURAL HISTORY

The Oklahoma Bar Association (OBA) filed a complaint against Earl W. Wolfe (Wolfe or Respondent) on June 2, 1994, alleging seventeen counts of misconduct in violation of the Oklahoma Rules of Professional Conduct, Okla. Stat. tit. 5, ch. 1, app. 3-A (1991) (hereinafter ORPC), and the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (1991) (hereinafter RGDP). Respondent filed an answer on June 23, 1994. On August 2, 1994, the OBA filed an amended complaint alleging an additional seven violations of the ORPC and the RGDP. Not until September 20, 1994, did Respondent file an answer to the amended complaint and only after being ordered to respond to a Motion to Deem Allegations Admitted.

The Professional Responsibility Tribunal (PRT) held a healing on March 1,1995. The parties filed a stipulation of findings of facts and conclusions of law. Respondent moved for a continuance so he could provide psychological testimony. The PRT continued the hearing until May 9, 1995, at which time it took testimony. However, on May 9, Respondent failed to provide any psychological testimony.

The PRT adopted the stipulation of the facts and conclusions of law. After considering the facts, Respondent’s previous discipline for violating the rules governing attorneys’ conduct (a private reprimand and a six-month suspension), the OBA’s recommendation that Respondent be disbarred, and Respondent’s position that he should receive only probation, the PRT recommended a two year suspension.

II. FACTS

On August 30, 1991, Respondent received a private reprimand from the Professional Responsibility Commission for negligently handling clients’ matters, for failing to communicate with his clients, and for failing to respond to the OBA’s grievance investigations. On June 15,1993, this Court suspended the Respondent from the practice of law. State ex rel. Oklahoma Bar Association v. Wolfe, 864 P.2d 335, 336 (Okla.1993). Because a motion for rehearing was filed, the suspension did not become effective until November 1, 1993. The six-month suspension was based on Respondent’s neglect of client matters and failure to respond to the OBA’s grievance investigations.

Respondent has stipulated to twenty-four counts of violating the ORPC and the RGDP. Several of the counts occurred after the 1993 suspension and others were being investigated at the time of the suspension.

On thirteen occasions, Respondent failed to timely respond to the OBA requests for information concerning complaints against him. On several of those occasions, Respondent did not file a written response. Rather, his response was solicited during his deposition and only after the OBA subpoenaed him.

Three counts involve his trust account. Three times Respondent’s cheeks on his trust fund were returned for insufficient funds. Respondent admits to having written a check on his trust account to purchase a business asset. One time, Respondent paid out more from his trust account on behalf of a client than he had received. Respondent deposited a $200 check in his trust account which he refunded from his operating account. When the check would not clear, he gave the client cash. Respondent deposited money from a client into his operating account to pay some of the client’s expenses. Respondent did not pay the client’s bills but paid himself.

On June 15, 1993, Respondent had not filed his income tax returns for 1990 and 1991. At the time the complaint was filed on June 2, 1994, Respondent had not filed his 1992 tax returns. The tax returns were not filed until a week before the hearing.

On seven occasions, Respondent neglected his client’s cases. Respondent failed to respond to motions to dismiss and for summary judgment, failed to appear for hearings, failed to prosecute appeals, failed to file judgments, and failed to inform his clients of his suspension. Respondent’s neglect resulted in the dismissal of his clients’ cases. He either did not tell his client the case was *430dismissed or he told them he would refile the matter.

III. Due Process

A. Bias of the PRT

In Respondent’s brief before this Court, he asks that he be granted a new hearing before a new panel. His requests rests on allegations of unfairness and bias. The allegations are not supported by references to the record. Rather, Respondent relies on the fact that the PRT would not continue the first hearing and that it would not allow him to present certain evidence concerning the “Bar and federal court insider causations for the depression and failures.”

The complaint was filed on June 2, 1994, and the amended complaint was filed on August 2, 1994. Respondent did not file an answer to the amended complaint until September 20, 1994. Respondent filed an amended answer on March 2, 1995, a day after the first hearing was held. Even though nine months had lapsed since the complaint was filed and seven months since the amended complaint was filed, Respondent’s attorney had only one witness, other than himself and the Respondent, present at the healing and was unable to produce any of his exhibits. That witness was an investigator for the OBA Respondent’s attorney requested a continuance to present psychological testimony. The PRT continued the hearing until May 9, 1995, for the express purpose of allowing psychological testimony. However, Respondent failed to present any such testimony.

After considerable time had been spent by Respondent’s attorney on the cause of Respondent’s depression, the panel refused further testimony as repetitious. Respondent’s attorney was allowed to make an offer of proof but failed to present any additional evidence of the OBA failures which he alleged caused Respondent’s depression, or “wounded” state as the Respondent characterizes the problem.

In Respondent’s brief he argues his exhibits 1 through 5 reveal evidence of abuses by the Professional Responsibility Commission and federal judges, as well as showing insider corruption at the OBA The exhibits do not support these allegations. Exhibit 1 is a copy of this Court’s opinion in Tweedy v. Oklahoma Bar Association, 624 P.2d 1049 (Okla.1981). Exhibits 2, 3, 4, and 5 are documents filed by Craig Tweedy, Respondent’s attorney, in a disciplinary matter against Tweedy. Nothing in these documents prove corruption in either the OBA or the federal courts.

Respondent did present the testimony of Steven R. Hickman who testified that the OBA was biased toward large firms and attorneys who practice with those firms. Mr. Tweedy and Respondent also testified that they perceived a bias by the OBA against certain attorneys and that there was insider corruption. None of these witnesses gave any facts which supported their allegations of bias or corruption. A showing of bias requires more than a showing that the trier of fact ruled adversely to you. Green v. Dorrell, 969 F.2d 915, 919 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1386, 122 L.Ed.2d 720 (1993). Therefore, Respondent’s request for a new hearing before a new panel is denied.

B. Federal Court Suspension

Based on this Court’s suspension, Judge Ellison suspended Respondent from practicing in the federal courts for the Northern District of OHahoma on July 15, 1993. This Court’s opinion suspending Respondent was issued on June 15, 1993 but, because of rehearing, did not become effective until November 1, 1993. Therefore, the federal court suspension was operative for thirteen months and two days. Respondent argues the extended suspension in federal court violated his due process.

A disciplinary proceeding before this Court is not the proper forum for addressing grievances against the federal bench’s decisions. See RGDP at rule 1. The Tenth Circuit Rules provide the avenue for complaints against federal judges. Rules-of the Judicial Council of the Tenth Circuit Governing Complaints of Judicial Misconduct or Disability, Preface, Rules 1-23 (1994). Further, appeals of suspensions from a district judge in the Northern District are to the remaining active *431judges of the district. Local Civil Rules of the United States District Court for the Northern District of Oklahoma, Rule 1.4(E) (1995). The record does not show Respondent took any of the proper steps to appeal the suspension in the federal court.

IV. Mitigation

A Equity

Respondent urges this Court to consider the equities in mitigation of damages. He asserts that the insider corruption within the OBA and within the federal bench helped bring about his wounded state of mind. However, Respondent failed to factually support his allegations of corruption, past or present, within the OBA, the General Counsel’s Office, or the federal bench. This “defense” is without merit.

B. Merger

Respondent also argues the doctrine of merger prevents the consideration of discipline for the stipulated violations. Respondent’s contention is elusive, but he appears to argue that the OBA was estopped from pursuing the present claims because they were merged with the previous suspension. The present violations could not have been previously presented because some of them had not occurred in time to be prosecuted with this complaint. See Stipulated Findings of Facts and Agreed Conclusions of Law ¶¶ 12-25, 28-30, 37-38, 4445, 55-60, 62-65, 67-72, 74-78, 85-87, 107-08, 114-116, 120-22, 124-126. Respondent unreasonably delayed the investigation of others through his failure to respond to the OBA’s requests for information and for documents. Id. at ¶¶ 32-35, 40-42, 47-53, 81-83, 90-98,100-106,110-11,118, 123,127. This Court will not allow attorneys to escape the consequences of their behavior by dilatory actions. Respondent’s contrived defense of merger in this ease is frivolous.

C. Lawyers Helping Lawyers

Respondent also argues in mitigation that the Assistant General Counsel should have referred him to Lawyers Helping Lawyers and, because of this failure, his discipline should be less. Although many times the OBA refers attorneys to Lawyers Helping Lawyers, it is not the obligation of the OBA to do so. The fact that the OBA did not refer Respondent to Lawyers Helping Lawyers is not a consideration in mitigation of discipline.

Even though Respondent became aware of the services offered by Lawyers Helping Lawyers on March 1, 1995, the only help he had sought at the time of the hearing on May 9,1995, was supervision if this Court imposed a probation as discipline. He did not seek the help of Lawyers Helping Lawyers as a means of correcting his problems.

V. Enhancement

Respondent has a history of ignoring responsibilities associated with the privilege of practicing law. He has twice before been disciplined for dilatory conduct in handling client matters and failing to respond to inquiries from the OBA When Respondent was previously suspended from the practice of law, the Court noted: “Wolfe, even now, does not recognize the seriousness of his misconduct.” This apparently has not changed although Respondent argues that he now sees the error of his ways.

Respondent vehemently argues for probation even though the violations of the rules governing attorney conduct presently before this Court are more abundant and at least as serious as when he was suspended. While arguing the cause of the violations was depression from which he has recovered, Respondent continues his dilatory behavior. As recently as the hearings on this complaint, Respondent was acting in an ■ irresponsible manner. He failed to have his exhibits and witnesses available at the first hearing. At the second hearing, he failed to present any psychological testimony which was his stated reason for a continuance. Respondent has continually ignored his responsibilities to respond to OBA inquires.

Additionally, Respondent’s brief before this Court is replete with misrepresentations. He states: “The record shows facts and appearances of key appointees to the Professional Responsibility Committee (“PRC”) protecting the wrongful acts of select lawyers, clients and others, without awareness *432by other PRC members.” Although containing serious allegations of “insider corruption”, the record does not point to even one instance of protection of select lawyers.

Respondent represents: “No grievance charged post-suspension failures.” Counts XIII and XVII both complain of violations occurring after Respondent’s suspension. Further, Counts XV, XVI, XVIII, XX, XXI, XXII, and XXIV contain violations occurring after Respondent’s suspension. Respondent stipulated to the truth of these allegations before the PRT.

There is little difference in Respondent’s previous behavior for which he was suspended and his behavior in the present matter. Respondent still seeks to avoid the consequences of his behavior by placing blame on the PRT, the OBA, and the federal bench for the Northern District of Oklahoma. As in the previous suspension, Respondent has made allegations about the OBA which are unsupported by facts, habitually failed to responded to OBA investigations, and failed to adequately represent his client’s. Additionally, in the present matter, he has failed to timely file tax returns and has commingled his operating funds with his clients’ trust funds. There is no indication that the previous suspension or any subsequent events have been successful in altering Respondent’s dilatory manner.

VI. Discussion

After a de novo review of the record, the Court agrees with the PRT findings that Respondent has violated rules 8.1(b), 1.15, 1.8, 1.4, and 8.1 of the ORPC and rules 5.2, 1.3, and 1.4 of the RGDP. We also find Respondent violated rule 9.1 of the RGDP. The PRT recommends a two-year suspension, the OBA seeks disbarment, and Respondent argues for a probation. It is this Court’s obligation to independently determine the proper discipline. State ex rel. Oklahoma Bar Ass’n v. Miskovsky, 832 P.2d 814, 817 (Okla.1992).

The purpose of discipline is preservation of the integrity of the bar and courts and protection of the public. State ex rel. Oklahoma Bar Ass’n v. Peveto, 620 P.2d 392, 395 (Okla.1980). “Part of [this] purpose is deterrence of like behavior by both the respondent and other members of the Bar.” State ex rel. Oklahoma Bar Ass’n v. Rozin, 824 P.2d 1127, 1129 (Okla.1991). A private reprimand and a six-month suspension have failed to correct Respondent’s dilatory behavior.

“The attorney-client relationship is one of the highest trust and confidence. This relationship requires that an attorney’s dealing with his client must be characterized by the utmost candor and fairness.” State ex rel. Oklahoma Bar Association v. Hatcher, 452 P.2d 150, 154 (Okla.1969). “[A]cting promptly in pending matters and communicating with a client ... is a mandatory obligation imposed upon licensed practitioners.” State ex rel. Oklahoma Bar Ass’n v. Evans, 880 P.2d 333, 339 (Okla.1994). Not only has Respondent violated this trust by neglecting his client’s matters and commingling funds, he has disregarded attempts by the OBA to investigate his failures. Further, he failed to timely file his tax returns and did not do so until the week before the hearing.

The violations in this matter are similar to, but more extensive than, those in Evans. The respondent in Evans (1) failed to provide his clients with adequate representation, (2) neglected client matters, (3) did not keep his clients informed, and (4) failed to timely respond to OBA inquiries. In imposing a two-year-and-one-day suspension, this Court noted:

A lawyers’ license is a certificate of professional fitness to deal with the public as a legal practitioner. Public confidence in the practitioner is essential to the proper functioning of the profession. A lawyer’s misconduct adversely reflects on the entire Bar because it exhibits a lack of commitment to the clients’ causes, to the courts, and to other members of the Bar.

Evans, 880 P.2d at 339. Respondent has repeatedly shown a lack of commitment to his clients’ causes and to the courts.

On de novo review, we find Respondent has violated the ORPC and the RGDP. We believe the proper discipline is a suspension from the practice of law for two years and one day. See RGDP at rule 11.1. A suspension for longer than two years requires an *433applicant for readmission to file a petition with the Supreme Court with affidavits showing the applicant’s activities and places of residence since the suspension and that the applicant has not engaged in the practice of law. Id. at rule 11.1(a), (d).

Additionally, the applicant must show the Client Security Fund has been reimbursed for all funds expended because of the applicant’s behavior. Id. at rule 11.1(b). The applicant must pay the expenses of the proceeding for removal of the suspension. Id. at rule 11.1(c). The applicant has the burden, by clear and convincing evidence, to show if allowed to practice law, the applicant’s conduct will conform to the standards required of members of the Bar. Id. at rule 11.4. The PRT must make a finding that the applicant has the competency and learning to practice law. Id. at rule 11.5. A member of the Bar who has been suspended from the practice of law has almost as onerous burden for removal of the suspension as someone who has been disbarred does for reinstatement. See id. at rules 11.1-11.5.

Because of Respondent’s continual failures, the safeguards provided by the reinstatement procedures after a suspension of more than two years are necessary to accomplish the goal of protecting the public. As a condition of reinstatement to the practice of law, Respondent must comply with the requirements of the Rules Governing Disciplinary Proceedings. Within thirty days from the date this opinion becomes final, Respondent shall pay the costs incurred in this proceeding in the amount of $4,163.91.

Respondent, Earl W. Wolfe, is hereby suspended for two years and one day from the practice of law to begin on the day this opinion becomes final. Respondent must timely pay the costs incurred in this proceeding as a condition of reinstatement.

RESPONDENT SUSPENDED FOR TWO YEARS AND ONE DAY AND ORDERED TO PAY COSTS.

ALMA WILSON, C.J., KAUGER, V.C.J., and LAVENDER, HARGRAVE and WATT, JJ., concur. OPALA, J., dissents. SIMMS and SUMMERS, JJ., not participating.