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In re Reinstatement of Fraley5/25/2005
PROCEEDING FOR REINSTATEMENT TO THE OKLAHOMA BAR ASSOCIATION
In this application for reinstatement to membership in the Oklahoma Bar Association the issues to be decided are: (1) Is the record sufficient for our meaningful de novo consideration of the application? and (2) Did applicant establish the prerequisites and meet his burden of proof of showing by clear and convincing evidence that his reinstatement is justified? We answer both questions in the negative.
This is an unusual and complicated reinstatement matter because applicant, Jerry Fraley's, resignation did not comply with requirements of the governing rules.On December 18, 1997, Mr. Fraley sent a letter to the Executive Director of the Oklahoma Bar Association which stated in full: "Effective immediately, I hereby resign as a member of the Bar of the State of Oklahoma." The following day, December19, 1997, the Executive Director responded with a letter acknowledging receipt of Mr. Fraley's letter and advising him that his resignation from membership "has been accepted."
Mr. Fraley gave no reason for his resignation in the letter. The undisclosed reason behind his decision to resign was that his employer , Mr. Bill Cathcart, had just discovered that Mr. Fraley had misappropriated funds belonging to the firm and to its clients to cover his gambling losses.
I.
Mr. Fraley filed his petition for reinstatement on September 5, 2003, pursuant to Rule 11.1 of the Rules Governing Disciplinary Proceedings, (RGDP)5 O.S. 2001, Ch. 1, App. 1-A. This is his first attempt at reinstatement. At the August 2004 hearing on his petition before the three-member trial panel of the Professional Responsibility Tribunal (PRT), Mr. Fraley testified and his wife, his therapist and three lawyers testified in his behalf. Mr. Cathcart submitted an affidavit. The Bar Association presented no evidence against him and no witnesses of its own.
Mr. Fraley testified that he was admitted to the practice of law in 1984 and went to work for the Cathcart firm in Oklahoma City in 1986. He related that he developed a gradual interest in wagering on horse races at Remington Park in Oklahoma City and that at first he was quite successful. For a considerable period preceding the 1997 discovery of his misappropriation of funds, he had been spending more and more time at the track gambling and drinking heavily. He began losing money regularly and started spending money from savings and other sources of his own trying to recover on his losses, but he failed to turn his luck around. When he ran out of his own money, he began taking money from the firm.
He testified about the discovery of his misappropriation of funds and related that on or about December 15, 1997, Mr. Cathcart had called a meeting and confronted him about money missing from a specific file, the Kunkel file, which was a fire subrogation case. Mr. Fraley stated that he admitted to Mr. Cathcart that he had taken the money in question which was the firm's attorney fee. His testimony did not reveal the amount of that money, however. At that meeting he had also admitted that there were other files from which he had taken money and he had cooperated with Mr. Cathcart in reviewing them. He stated there were three primary files involved, and he identified the two in addition to the Kunkel file as the First Christian Church of Poteau and the Phillips cases, also fire subrogation matters. In the First Christian Church case he said he had taken about $6,000.00, which was comprised of $2,000.00 of the firm's money and $4,000.00 of the client's money. He did not remember the amount he had taken from the Phillips file, but he knew that some client m
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