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State ex rel Oklahoma Bar Association v. Malloy11/20/2001
r he selected would have no trouble in completing the legal work for the approval of the proposed smoke shop within ninety days. Nave, however, did not sign the agreement and later told Corday "that the Owasso project was not coming together as expected." Nave then presented a similar agreement to Corday and Ms. Pendergrass regarding another Indian smoke shop project, which was to be located at the traffic circle at Admiral and Mingo in Tulsa.
In April 1994, Corday and Ms. Pendergrass signed a "Pre-Incorporation Agreement and Letter of Intent" presented to them by Nave and Ms. Pendergrass paid Nave $3,000. Later in April, Nave, Corday, and Ms. Pendergrass met with Malloy at Malloy's office. Ms. Pendergrass paid Malloy $7,000 at that time. Malloy admits that he failed to explain to Ms. Pendergrass the complexities involved in the project, including the possibility of substantial delay. Further, Malloy also admits that he did not tell Corday and Ms. Pendergrass that he had never completed an Indian smoke shop project from start to finish. Malloy had known Nave for fifteen years, had represented him in various matters over the years, and was representing him on a felony charge in Tulsa County at the time Nave introduced Malloy to Corday and Ms. Pendergrass.
Malloy took the position that the joint venture was his client and that he did not represent its members, Nave, Corday, and Ms. Pendergrass individually. Malloy did not explain to Corday and Ms. Pendergrass, however, the difficulties that might be presented if conflicts of interest should arise among the three joint venturers. Malloy concedes that his conduct in this regard constituted a conflict of interest.
Malloy regarded the $7,000 that Ms. Pendergrass paid to him as non-refundable but he did not explain this to her. The smoke shop project for which Corday and Ms. Pendergrass paid Malloy never opened. Malloy admits that he had an obligation to explain these things to Corday and Ms. Pendergrass but did not do so.
Malloy and the Bar stipulated, and the trial panel found, that Malloy's conduct giving rise to Count II violated the provisions of Rules 1.7, 8.4(c) (note 1), and 1.5(b), Oklahoma Rules of Professional Conduct, which violations constituted grounds for professional discipline.
MATTERS IN MITIGATION OF PUNISHMENT
Malloy has refunded all sums he received from Corday and Ms. Pendergrass and both have released Malloy from any civil liability.
MATTERS IN ENHANCEMENT OF PUNISHMENT
On April 6, 1984 Malloy received a Private Reprimand from the Professional Responsibility Commission for conduct that occurred in 1981. On July 19, 1996 Malloy received a Private Reprimand from the Professional Responsibility Commission for conduct arising out of his involvement with the smoke shop projects at issue here but involving different investors. Malloy, however, committed the acts at issue here long before the investigation began that resulted in the July 19, 1996 Private Reprimand.
DISCUSSION
Malloy's acts warrant public censure. None of Malloy's clients suffered harm, either in the matters at issue here or in the matters giving rise to his two private reprimands. Further, while the displeasure of Malloy's opponent in the partnership dispute was understandable, the core problem was that Malloy's client lacked the money to fund a settlement. Despite Malloy's failure to make this fact known to plaintiff's counsel as soon as he should have done so, plaintiff and his lawyer were well enough satisfied with the terms of the settlement that they sought and received a judgment based on its terms. Neither Corday nor Ms. Pendergrass suff
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