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State ex rel. Okl. Bar Ass'n v. Kessler7/30/1991
Rehearing Denied October 21, 1991.
STATE OF OKLAHOMA, EX REL. OKLAHOMA BAR ASSOCIATION, COMPLAINANT,
v.
PAUL J. KESSLER, RESPONDENT.
Kenneth R. Nance, Oklahoma City, for respondent.
The opinion of the court was delivered by: KAUGER, Justice.
The complainant, Oklahoma Bar Association (Bar Association), alleges that the respondent, Paul J. Kessler (Kessler) commingled client funds and used the money for purposes other than those authorized by the client. The Bar Association also alleges that Kessler misrepresented to the trial court in a writ of assistance proceeding that the money had been used for its intended purpose. However, the trial panel made no findings of fact concerning the misrepresentation to the trial court. We find that the Bar Association established by clear and convincing evidence that Kessler commingled and misused client funds, and that the same evidence supports a finding that he misrepresented the disposition of the client's funds to the trial court. The two-year and one day suspension with the imposition of costs in the sum of $1,790.62 is warranted.
FACTS
Kessler is a duly licensed attorney and a member of the Oklahoma Bar Association. Kessler represented a client in a foreclosure proceeding initiated by Citizens Bank of Edmond. During the foreclosure, the client negotiated with a vice-president of the bank to lease back the home on which the bank was foreclosing for $800 a month. The client approached Kessler and Kessler agreed to formalize the lease. Both parties testified that the delivery of the check was separate from the foreclosure action. Kessler was simply to check on the agreement being drafted by the bank to determine the commencement of the rental period and to deliver the check. All negotiations were done by the client and the bank. On February 7, 1989, Kessler wrote to the attorney representing the bank asking him to conform the lease agreement and to notify Kessler concerning the commencement of the rental period.
On May 6, 1989, the client gave Kessler $800 in cash. A receipt was issued by Kessler's secretary. At the bottom of the receipt, she noted that the money was for the June 1989 rent to Citizens Bank. Kessler testified that the money was not deposited into an attorney trust account, but that it was placed in a locked box maintained in Kessler's office.
On June 6, 1989, Kessler sent a letter to the vice-president of the bank enclosing a copy of a letter allegedly sent on May 30, 1989. The May 30th letter purported to transmit check No. 732, dated May 30, 1989, in the amount of $800 drawn on Kessler's personal account. Two officers at the bank testified that when they received the letter dated June 6, they made a diligent search for the May 30th letter and the check - they were never found.
In June, the bank filed a Writ of Assistance in the foreclosure action for the client's removal from the property. Late in June, Kessler filed an objection to the Writ stating: that a vice-president of the bank had agreed the property would be leased to the client for $800 per month; that Kessler had paid the bank, and that the bank had not returned the money. The client was removed from the property.
Kessler alleges that after the Writ of Assistance was issued, the bank returned his original letter dated May 30, 1989 and the check in a bank envelope without a cover letter to him. Kessler contends that he then tore up the original letter and check. The vice-president of the bank testified that the letter and check were not found but had they been
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