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State ex rel Oklahoma Bar Association v. Malloy11/20/2001
__ P.3d __
ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE
Complainant, Oklahoma Bar Association, charged Respondent, Terry Malloy, with two counts of professional misconduct. A hearing was conducted before a trial panel of the Professional Responsibility Tribunal. Based on the evidence presented, the stipulations of the parties, findings of fact, conclusions of law, and mitigating factors, the trial panel recommended that Malloy be publicly censured and that the costs of the proceedings should be assessed against him. Upon our de novo review, we agree with and adopt the recommendations of the trial panel.
RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY THE COSTS OF THE PROCEEDING
OPINION
Complainant, Oklahoma Bar Association, alleged two counts of misconduct against Respondent, Terry Malloy, to which Malloy filed his answer. A trial panel of the Professional Responsibility Tribunal conducted a hearing on the Bar's complaint on June 7, 2001. The parties entered into stipulations of fact, conclusions of law, and recommended discipline, which were attached in an exhibit to the Trial panel's report, filed July 9, 2001. On August 28, 2001 the Bar filed its application to assess costs in the amount of $574.80.
COUNT I
Malloy, a licensed lawyer and member of the Oklahoma Bar Association, represented the defendant in a suit to dissolve a partnership. Malloy's client and the plaintiff in the case were partners. The case was set for trial on June 21, 1995. Shortly before trial, Malloy negotiated a settlement with the plaintiff's lawyer, which required Malloy's client to pay the plaintiff $200,000 in return for the assignment of oil and gas properties; plaintiff agreed that the case could be stricken from the trial docket. Although Malloy's client delivered checks to Malloy totaling $200,000, the client's bank account lacked sufficient funds for the checks to clear, a fact that was known to Malloy but which Malloy did not immediately make known to either the plaintiff or to his lawyer. The lawyer who was Malloy's opponent testified at the hearing before the trial panel that he thought Malloy had lied to him. It was Malloy's lawyer opponent who filed the grievance against Malloy that lead to this Count I.
After the plaintiff learned that the defendant's checks would not clear the bank, he filed a motion in the case to enforce the settlement agreement. The court entered judgment for plaintiff. At a hearing on plaintiff's motion for attorneys' fees and costs in October 1996, the trial court stated on the record that it believed Malloy knew at the time he negotiated the settlement agreement that his client had insufficient funds to consummate the settlement. Malloy stipulated with the Bar, and the trial panel found, that Malloy's conduct in giving rise to Count I violated Rule 8.4(c) of the Oklahoma Rules of Professional Conduct.
COUNT II
Count II arose from a grievance filed in 1997 by Nancy Gourley, a lawyer, on behalf of two of her clients, Roger Corday and Joyce Pendergrass. In early 1994, Corday responded to a newspaper advertisement for a "Business Opportunity." Art Nave, a non-lawyer had placed the ad. Nave told Corday that the purpose of his ad was to induce investors to invest money with him or a lawyer he selected to finance legal work on an Indian smoke shop. Corday ultimately signed a "Pre-Incorporation Agreement," that Nave presented to him, which covered a smoke shop to be located in Owasso, Oklahoma.
Malloy had represented Nave and Nave told Corday that he had a lawyer who specialized in the setting up of Indian smoke shops. Nave represented that the lawye
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