Oklahoma Case Law

IN RE REINSTATEMENT OF MASSEY, 2006 OK 21 136 P.3d 610 In
the Matter of the REINSTATEMENT OF Thomas Allen MASSEY to
Membership in the Oklahoma Bar Association and to the Roll
of Attorneys. SCBD No. 4886. Supreme Court of Oklahoma.
April 11, 2006. Page 611

¶ 0 Petitioner, Thomas Allen Massey filed a petition
for reinstatement to membership in the Oklahoma Bar
Association (OBA). The OBA, through the Office of the
General Counsel, opposes reinstatement and, after hearing,
a Professional Responsibility Tribunal trial panel
recommends denial of reinstatement. After de novo review we
deny reinstatement.

REINSTATEMENT DENIED; COSTS ASSESSED.

Jack S. Dawson, Miller Dollarhide, Oklahoma City, OK, for
petitioner, Thomas Allen Massey.

Loraine Dillinder Farabow, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City, OK, for
respondent, Oklahoma Bar Association.

LAVENDER, J.

¶ 1 Petitioner, Thomas Allen Massey filed a petition
for reinstatement to membership in the Oklahoma Bar
Association (OBA). The matter is before us pursuant to Rule
11 (Reinstatement), Rules Governing Disciplinary
Proceedings (RGDP), 5 O.S. 2001, Ch. 1, App.1-A, as
amended. The OBA, through the Office of the General
Counsel, opposes reinstatement and a Professional
Responsibility Tribunal trial panel (PRT) that held a
hearing in the matter, recommends reinstatement be denied.
After de novo review we deny reinstatement.

¶ 2 This petition for reinstatement was filed in
February 2004.[fn1] The PRT held a hearing on September 30,
2004 and filed its trial panel report in November 2004.
The Page 612 parties’ briefs were filed in December 2004.
The record (including the transcript and exhibits) was
filed in March of 2005.

¶ 3 In March of 1993 in Supreme Court Bar Docket
(SCBD) Case Number 3905, petitioner filed an affidavit
requesting he be allowed to resign his membership in the
OBA and relinquish his right to practice law. At the time,
twenty (20) grievances were pending against him with the
OBA. The OBA requested this Court to approve petitioner’s
resignation pending disciplinary proceedings, which the
Court did by an Order filed March 22, 1993. The grievances
against him as spelled out in his March 1993 affidavit
involved multiple and varied claims of misconduct. The
claimed misconduct included, but was not limited to, neglect
of client matters, failure to communicate with clients,
receiving referrals from one or more other law firms or
attorneys without authorization from the client,
misrepresentation to a client and failure to provide
appropriate accountings to clients. As will be explored in
more detail below, petitioner on multiple occasions was
also embezzling money from his attorney trust fund account,
conduct which eventually led to his pleas of guilty and
convictions on five State felony charges, four of
embezzlement by an attorney and one of forgery in the
second degree, based on a plea bargain/agreement.

¶ 4 Petitioner was admitted to practice law in
Oklahoma in 1968. At the time of his offending conduct he
had been an attorney for over two decades. We do not deem
it necessary to detail every position petitioner has held
from 1968 to the present. Early in his legal career he
worked as an Assistant District Attorney in Hughes County,
Oklahoma. He then worked as an attorney with the United
States Securities and Exchange Commission.[fn2] He also was
a general counsel for a corporation in Pennsylvania for a
period of time.[fn3] Apparently, from 1976 until some time
in 1988 he was a self-employed attorney in Oklahoma,
although during some of this period he also worked for the
United States Military as a contracting or procurement
officer, having joined the National Guard in 1953. For
about two years in the late 1980s he worked for the United
States Department of Defense as a Deputy to the Secretary
of Defense. From about May 1991 to about February 1993 he
was self-employed by Massey & Associates in Oklahoma City,
basically his law firm.

¶ 5 Petitioner started Massey & Associates after
agreeing with another law firm to accept overflow referrals
of personal injury type cases. He started with only a
secretary, but the case load was large and the firm grew to
about twenty (20) employees. At some point in time during
the existence of Massey & Associates petitioner began
embezzling money from his attorney trust fund account to
assist him in running the law firm, including making
payroll. Petitioner appeared to testify at the PRT hearing
in this matter that he did not pay himself (i.e., his
salary) with any of the embezzled funds and that he paid
himself from other cases he was working on. In his December
1, 2004 brief filed in this matter at note 2, page 13 he
appears to have recognized the personal benefit to himself
by his misconduct in that it is stated, “[petitioner] did
benefit by keeping his office open and his staff paid,
including his own salary.” As we understand his testimony,
initially he paid the money back, but at some point in time
he was not in a position to do so. Page 613

¶ 6 At least fifty (50) victims were involved and as
we understand the record at least $136,000.00 was embezzled
by petitioner. In other words, petitioner’s misconduct was
not an isolated event, but was widespread. The OBA Client’s
Security Fund paid out almost $53,000.00 as a result of
petitioner’s misconduct. Petitioner has made restitution in
the approximate amount of $136,000.00, either through
payments made to the Oklahoma Department of Corrections
(DOC) or the OBA. The final payment was made to the OBA in
April 2004.

¶ 7 Criminal charges were filed against petitioner
in Oklahoma County. Pursuant to a plea bargain/agreement he
pled guilty to five State felony charges, four of
embezzlement by an attorney and one of forgery in the
second degree. He was sentenced on the convictions in June
1995. Title 21 O.S. 1991, § 1454[21-1454],[fn4] the
embezzlement statute to which he pled guilty, and was
convicted and sentenced as to four charges, provided:

If any person being a trustee, banker, merchant, broker,
attorney, agent, assignee in trust, executor,
administrator or collector, or being otherwise entrusted
with or having in his control property for the use of any
other person, or for any public or benevolent purpose,
fraudulently appropriates it to any use or purpose not in
the due and lawful execution of his trust, or secretes it
with a fraudulent intent to appropriate it to such use or
purpose, he is guilty of embezzlement.

Title 21 O.S. 1991, § 1592[21-1592], the forgery in
the second degree statute to which he pled guilty, and was
convicted and sentenced as to one charge, provides:

Every person who, with intent to defraud, utters or
publishes as true any forged, altered or counterfeited
instrument or any counterfeit gold or silver coin, the
forging, altering or counterfeiting of which is
hereinbefore declared to be punishable, knowing such
instrument or coin to be forged, altered or counterfeited,
is guilty of forgery in the second degree.

¶ 8 The Judgment and Sentence in each criminal case
(all dated June 29, 1995) and some other pertinent
documents from the criminal cases are in this record. They
show petitioner received five year suspended sentences on
the four embezzlement convictions, three of the sentences
(CF-94-6092, CF-94-6093 and CF-94-6094) to run
concurrently, but consecutively to the remaining conviction
in CF-94-6091. In other words, after the five year
suspended sentence in CF-94-6091 was served, he would begin
to serve the five year suspended sentences (concurrently)
for the other three embezzlement convictions, for a total of
ten (10) years on suspension. On the remaining conviction
in CF-94-6095 for forgery in the second degree he received
a seven year suspended sentence, which was to run
concurrent with the sentence in CF-94-6091. Thus,
petitioner’s suspended sentence(s) did not terminate until
on or about June 29, 2005, i.e., subsequent to the time he
filed this petition for reinstatement.[fn5]

¶ 9 The record indicates petitioner receives a
military pension, he is seventy (70) years old and he is
married. Since his resignation in 1993 he has worked at
various jobs. These have included sales positions. They
have also included loan officer positions in the mortgage
business. At the time of the PRT hearing his testimony
indicated he was in the commercial mortgage business and
his OBA Reinstatement Questionnaire indicates he was
manager of a lending corporation. No evidence was presented
that petitioner has engaged in the unauthorized practice of
law since his resignation from the OBA. Page 614

¶ 10 Petitioner and five other witnesses testified
on his behalf at the PRT hearing. These five witnesses have
known him for varying lengths of time. They were his
attorney in the criminal cases, his current church pastor,
his CPA (also an attorney) and two other attorneys. Except
for his pastor, all knew him prior to the offending
conduct. These five witnesses, in essence, all believe
petitioner is currently a good morally fit person. Evidence
also showed petitioner is involved in his church and more
than one of its activities or programs. The OBA called only
one witness at the PRT hearing, an investigator employed by
the OBA. The OBA does not contend petitioner has engaged in
any bad behavior subsequent to his resignation.

¶ 11 Petitioner’s own testimony seems to indicate
he understands the wrongfulness of his conduct and the
disrepute it brought upon the entirety of the legal
profession. Petitioner also attempted through his testimony
to assure this Court that he would never again engage in
such criminal-type conduct. As we understand his testimony
he also indicates he has changed from 1993, in that back
then he pushed the envelope on taking risks, but today he
would not take such risks.

¶ 12 The standard of review and factors considered
in reinstatement cases after a resignation pending
disciplinary proceedings were set out in Matter of
Reinstatement of Blevins, 2002 OK 78, 59 P.3d 510. There,
the following was stated:

When this Court in the exercise of its exclusive
jurisdiction considers a petition for reinstatement a de
novo standard of review is applied. Recommendations of a
PRT trial panel are merely advisory and, although Rule
11.5 (Findings Prerequisite to Reinstatement) requires the
PRT to make certain findings as to a petitioner’s moral
character, competency in the law and whether he/she
engaged in any unauthorized law practice during a period
of suspension, disbarment or resignation, the ultimate
responsibility and decision-making authority as to whether
reinstatement is warranted rests with this Court.

Moreover, an applicant for reinstatement in petitioner’s
situation bears the heavy burden of showing, by clear and
convincing evidence, that reinstatement is warranted. In
regard to a reinstatement application, a petitioner that
has resigned his membership in the OBA pending a bar
disciplinary proceeding has the same burden as an
individual that has been disbarred by this Court. In such
a proceeding the applicant is required to present stronger
proof of qualifications than one seeking admission to the
OBA for the first time. Rule 11.4 (Standard of Proof for
Petitions for Reinstatement), RGDP. This Court has also
delineated eight factors considered in determining fitness
for reinstatement. They are: (1) applicant’s present
moral fitness, (2) demonstrated consciousness of the
conduct’s wrongfulness and the disrepute it has brought
upon the legal profession, (3) the extent of
rehabilitation, (4) the original misconduct’s seriousness,
(5) conduct after resignation, (6) time elapsed since the
resignation, (7) applicant’s character, maturity and
experience when he resigned, and (8) present legal
competence.

Matter of Reinstatement of Blevins, 2002 OK 78, at
¶¶ 3-4, 59 P.3d at 511 (case citations
omitted). Clear and convincing evidence is “that measure or
degree of proof which produces in the mind of the trier of
fact a firm belief or conviction as to the truth of the
allegations sought to be established.” State ex rel.
Oklahoma Bar Ass’n v. Green, 1997 OK 39, 936 P.2d 947, 949,
citing Matter of C.G., 1981 OK 131, 637 P.2d 66, 71 n. 12.

¶ 13 Additionally, in Matter of Reinstatement of
Page, 2004 OK 49, 94 P.3d 80, the following was set out:

[O]ur cases make clear “that a felony conviction is not
tantamount to a death sentence regarding the reinstatement
of the license to practice law. Rather, each reinstatement
decision is determined on a case-by-case basis, carefully
weighing all factors.” Matter of Reinstatement of
Anderson, 2002 OK 64, ¶ 4, 51 P.3d 581, 583.
However, “[w]e have also recognized that the more severe
the offense the heavier the burden an applicant must
overcome Page 615 to gain reinstatement. . . .” Matter
of Reinstatement of Wright, 1995 OK 128, 907 P.2d 1060,
1062, relying on Matter of Reinstatement of Cantrell, 1989
OK 165, 785 P.2d 312, 314. “Feelings of sympathy towards
the applicant must be disregarded.” Matter of
Reinstatement of Wright, 907 P.2d at 1062. The proof
concerning the matter must be sufficient to overcome this
Court’s former judgment adverse to the applicant. Rule
11.4, RGDP. Further, “[f]oremost consideration must be
given to protecting the public welfare. Finally, there
must be a determination that reinstatement would not
adversely effect the Bar.” Matter of Reinstatement of
Cantrell, 785 P.2d at 313.

Matter of Reinstatement of Page, 2004 OK 49, at ¶ 3,
94 P.3d at 82. Of course, along with the seriousness of the
original misconduct, the circumstances surrounding it are
considered in evaluating a reinstatement application. Rule
11.4, RGDP. If applicable, restitution or the lack of
restitution to injured parties will also be considered. See
id.

¶ 14 The PRT report makes a finding that petitioner
has not engaged in the unauthorized practice of law during
the period since his resignation. The record bears out that
finding by clear and convincing evidence. As we view the
PRT report, that body, in effect, identifies two main
deficiencies supporting its recommendation that
reinstatement be denied, 1) petitioner’s failure to present
clear and convincing evidence that he currently possesses
competent legal skills in order to be reinstated and 2) an
insufficient evidentiary showing that under similar
pressures and circumstances involved with the practice of
law, that petitioner would not again engage in the
misconduct of embezzlement.

¶ 15 In that petitioner has not been a member of the
OBA for a period well in excess of five years no
reinstatement is appropriate under the RGDP without his
taking and passing the regular examination given by the
Board of Bar Examiners of the OBA, unless it is adequately
shown that despite his long absence from law practice, “he
has continued to study and thus has kept himself informed
as to current developments in the law sufficient to
maintain his competency.” Rule 11.5(c), RGDP.
Reinstatements have been denied, in part, on the basis of a
failure to adequately show current competent legal skills.
See Matter of Reinstatement of Farrant, 2004 OK 77, 104
P.3d 567; Matter of Reinstatement of Turner, 1999 OK 72,
990 P.2d 861; Matter of Reinstatement of Hardin, 1996 OK
115, 927 P.2d 545; and Matter of Reinstatement of Bradley,
1993 OK 107, 897 P.2d 243. Petitioner has not taken a
continuing legal education course since 1992. He estimated
that the last time he drafted a legal pleading was in 1992
or 1993. He has not clerked doing legal research for any
attorneys. Although there is evidence of his reading the
Oklahoma Bar Journal the last couple of years prior to the
PRT hearing, various trade journals concerning legal,
regulatory and compliance issues in the commercial mortgage
industry and he discusses some legal issues, apparently four
or five times a month with his CPA (also an attorney),
neither this evidence nor any other evidence in the record
suffices as clear and convincing evidence to show
petitioner currently possesses competent legal skills to
warrant his reinstatement.

¶ 16 There is no question here that part of
petitioner’s misconduct involved multiple instances of
misappropriation of client funds. We have recently
reiterated that such “[m]isappropriation is the most
serious of money-related professional misconduct.” Matter
of Reinstatement of Fraley, 2005 OK 39, ¶ 25, 115
P.3d 842, 849 (involved misappropriation of both law firm
and client funds). This type of misconduct is “a profound
breach of professional ethics as well as an offense against
the common honesty expected of all trustworthy people of
good character. . . .” Id. Although neither petitioner’s
felony convictions nor the nature of his original
misconduct act as insurmountable barriers to his
reinstatement, we must have a firm conviction that
petitioner would not again engage in similar misconduct for
reinstatement to be warranted, i.e., the evidence must be
clear and convincing on this latter point. See Matter of
Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043.

¶ 17 Although the instant record does contain
evidence to support the view that petitioner Page 616
will not commit similar misconduct if readmitted, we must
have a firm conviction or belief in that fact before
reinstatement would be appropriate. The evidence contained
in this record does not allow us to have such a firm
conviction or belief. After giving due consideration to the
evidence contained in this record (including his
restitution and other evidence favorable to his
reinstatement quest) and the appropriate factors examined
in reinstatement proceedings, we determine petitioner has
failed to carry his burden to show by clear and convincing
evidence that he is entitled to reinstatement.[fn6]

¶ 18 Petitioner, Thomas Allen Massey’s petition for
reinstatement to membership in the Oklahoma Bar Association
(OBA) is DENIED. It is also ORDERED that petitioner pay the
costs of this matter in the amount of $1,190.92 within
ninety (90) days from the date this opinion becomes
final.[fn7]

¶ 19 ALL JUSTICES CONCUR.