State ex rel. Okla. Bar Ass'n v. Kutner

506 P.3d 370

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Sanford A. KUTNER, Respondent.

SCBD No. 7060

Supreme Court of Oklahoma.

FILED FEBRUARY 28, 2022

Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Sanford A. Kutner, Luling, Louisiana, pro se.

KUEHN, J.:

¶1 Respondent Kutner has been licensed to practice law in Oklahoma in since 1970. His Oklahoma bar membership is in good standing. He currently resides in Louisiana. In April 2021, Kutner was disciplined by the Supreme Court of Louisiana for practicing law without a license and other infractions. In Re: Sanford A. Kutner , 313 So.3d 1232 (2021). In May 2021, the OBA notified this Court of Kutner's discipline in Louisiana, pursuant to Rule 7.7, Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A ("RGDP"). In June 2021, this Court directed Kutner to show cause why a final order of discipline should not be imposed. Kutner did not file a written response with this Court, although he did send a response directly to the OBA, which is included in the record before us. In July 2021, the OBA filed a brief in support of discipline with appended evidentiary materials.

STANDARD OF REVIEW

¶2 This Court has the responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this State. State ex rel. OBA v. Wintory , 2015 OK 25, ¶ 14, 350 P.3d 131, 135. The primary purpose of disciplinary proceedings is protection of the public and purification of the Bar, not the punishment of the offending lawyer. State ex rel. OBA v. Bellamy , 2012 OK 20, ¶ 8, 273 P.3d 56, 61–62. Before a decision to discipline an attorney is made, misconduct must be demonstrated by clear and convincing evidence. Rule 6.12(c), RGDP. A certified copy of the per curiam opinion by the Supreme Court of Louisiana and supporting documents constitute the charge against Kutner. These materials serve as prima facie evidence that he committed the acts described therein. Rule 7.7(c), RGDP. As noted, Kutner presents no additional evidence to rebut these allegations.

BACKGROUND

¶3 The circumstances of the Louisiana matter are as follows. In 2012, Kutner's wife, Reva Lupin, a licensed attorney in Louisiana, was approached by a potential client, Jones, regarding possible representation in various civil-rights matters. Lupin told Jones she did not practice civil-rights law, but that her husband did. Jones consulted with Kutner and signed a contingency fee agreement. Kutner signed the agreement with his wife's name followed by his own initials, but Lupin took no part in representing Jones in these matters. Over the next fifteen months, Jones wrote several checks for legal services — some to Lupin, some to Kutner — totaling about $3700. A federal lawsuit was filed on Jones's behalf (listing Lupin as attorney of record), but it was eventually dismissed for failure to serve the defendants. Kutner appears to have ceased communication with Jones at some point along the way.

¶4 In 2017, proceedings were initiated against Kutner by counsel for the Louisiana's Attorney Disciplinary Board, which handles bar disciplinary matters for that state. Ultimately, the parties entered into a "joint petition for consent discipline." Kutner acknowledged that he had (1) engaged in the unauthorized practice of law, (2) neglected a client's legal matter, (3) failed to communicate with the client, and (4) failed to return unearned legal fees. The Louisiana Disciplinary Board noted that Kutner's conduct was aggravated by the fact that he had many years' experience as an attorney and by the vulnerability of his victim. In mitigation, the Board noted that Kutner had no prior disciplinary record, that he ultimately returned the unearned fees, and that he expressed remorse for his actions. Accepting the joint petition and the agreed-to sanction, the Supreme Court of Louisiana enjoined Kutner from seeking admission to the Louisiana bar, or seeking to practice law in that state on any other basis, for eighteen months. The Supreme Court of Louisiana rendered its decision in April 2021.

ANALYSIS

¶5 The OBA alleges (1) that Kutner failed to promptly notify it of the disciplinary proceeding in Louisiana; (2) that the record of the Louisiana proceeding supports a finding of professional misconduct; and (3) that Kutner's misconduct in Louisiana is grounds for discipline in Oklahoma.

A. Failure to notify OBA of discipline in Louisiana.

¶6 Rule 7.7, RGDP, provides for summary disciplinary proceedings when a member of the Oklahoma Bar has been subjected to discipline in another jurisdiction. An Oklahoma attorney's first duty is to notify the OBA General Counsel's office of the sanction within twenty days of the final order. Rule 7.7(a), RGDP. Failure to report disciplinary action in another jurisdiction is itself grounds for discipline. Id . The Louisiana Supreme Court issued its opinion in this matter in April 2021, and Kutner did not notify the OBA as required.

B. The substantive claims in the Louisiana matter.

¶7 A lawyer who is licensed in Oklahoma, but who engages in the practice of law in another jurisdiction without authorization, is subject to disciplinary action in this State. Rule 5.5(a), Oklahoma Rules of Professional Conduct ("ORPC"), 5 O.S.2011, Ch. 1, App. 3-a. The fact that the lawyer's misconduct resulted in disciplinary action in another state, does not bar further disciplinary action here. Rule 8.5(a), ORPC ; State ex rel. OBA v. Auer , 2016 OK 75, ¶ 16, 376 P.3d 243, 248.

¶8 As noted above, Rule 7.7(c), RGDP, provides that a certified copy of the documents and adjudication from the other jurisdiction "shall constitute the charge and be prima facie evidence the lawyer committed the acts therein described." Because Kutner chose not to request a hearing or present any evidence on his own behalf, we base our findings and conclusions about the Louisiana matter on the materials offered by the OBA, along with the letter Kutner wrote to the OBA in June 2021. That record supports a conclusion that Kutner engaged in the unauthorized practice of law in Louisiana. Specifically, Kutner held himself out as a lawyer who could prosecute a civil-rights matter, and accepted funds from a client to do so.

¶9 The OBA goes further, alleging that Kutner's handling of the Louisiana matter would constitute professional misconduct had it occurred in Oklahoma. Again, the record before us supports this allegation. The lawsuit that Kutner filed on behalf of his Louisiana client was eventually dismissed for failure to obtain service on the defendants. Kutner stopped communicating with his client, who had paid several thousand dollars in fees to Kutner and his wife. We find that, in addition to ORPC Rule 5.5 (unauthorized practice of law), Kutner's conduct would violate ORPC Rule 1.3 (reasonable diligence in representation), Rule 1.4(a)(3) (keeping client reasonably informed of the status of the case), Rule 1.4(a)(4) (promptly complying with reasonable requests for information), and Rule 1.16(d) (returning unearned fees when representation has ended).

¶10 It does not appear that Kutner contested the operative facts during the Louisiana proceedings. He agreed to the discipline proposed by the authorities there. However, we do note that in his June 2021 letter to the OBA, Kutner seemed to take issue with both the substantive claims in Louisiana and the process afforded him there. He even calls the Louisiana Supreme Court's decision "baseless" — which is peculiar, since Kutner not only admitted the allegations but agreed to the sanction imposed. In his letter, Kutner claims he was prevented from seeking a hearing in the Louisiana matter due to age and poor health, coupled with concerns during the COVID-19 pandemic. He states that he "has no open cases and no clients and no plans to alter that status," but nevertheless objects to disciplinary action in Oklahoma, claiming he has been licensed here "for over fifty years with an impeccable record."

C. Whether disciplinary action is warranted.

¶11 Having found that Kutner committed the misconduct alleged, we now consider appropriate discipline. While the OBA may suggest what sort of disciplinary action is warranted, this Court is not bound by that suggestion. State ex rel. OBA v. Loeliger , 2005 OK 79, ¶ 15, 127 P.3d 591, 595. When we do impose discipline, this Court strives toward some degree of proportionality — to impose discipline that is consistent with that imposed on other lawyers for similar misconduct. State ex rel. OBA v. Kleinsmith , 2013 OK 16, ¶ 4, 297 P.3d 1248, 1250. In a reciprocal disciplinary proceeding, we may also consider the severity of the discipline imposed by the other jurisdiction in assessing what discipline, if any, is appropriate in Oklahoma. See State ex rel. OBA v. Hyde , 2017 OK 59, ¶ 30, 397 P.3d 1286, 1293-94. We may consider whether the sanction imposed by the affected jurisdiction is sufficient to "stop the offending conduct and effectively served the purpose of discipline — protecting the courts, the public, and the legal system." Id. at ¶ 31, 397 P.2d at 1294.

¶12 The instant matter involved a single client and a single lawsuit. In addition, the OBA itself points to several facts which tend to mitigate Kutner's situation: (1) his return of unearned fees to the Louisiana client; (2) his remorse for his conduct; and (3) the absence of any prior discipline over a long legal career. Kutner has been licensed to practice law in Oklahoma for several decades. We have recognized each of these as mitigating in prior cases. See e.g. State ex rel. OBA v. Combs , 2007 OK 65, ¶ 35, 175 P.3d 340, 351. We also note that the Louisiana matter occurred almost ten years ago. It is not clear why disciplinary action was not initiated there until 2017. In any event, we are unaware of any complaints against...