# State ex rel. Oklahoma Bar Ass'n v. Krug > Supreme Court of Oklahoma · April 13, 2004 · 92 P.3d 67 URL: https://www.frixlaw.com/law-library/cases/5151935 ## Case - **Full name:** STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION v. SANDRA W. KRUG - **Court:** Supreme Court of Oklahoma - **Decided:** April 13, 2004 - **Citations:** 92 P.3d 67; 2004 OK 28; 2004 Okla. LEXIS 32; 2004 WL 772514 - **Precedential status:** Published - **Opinion:** Dissent by Opala - **Judges:** Boudreau, Edmondson, Hargrave, Hodges, Kauger, Lavender, Opala, Watt, Winchester - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5151935 ## How later opinions describe it (automated extraction) - discussing whether the criminal defense of automatism or total unconsciousness applies in attorney disciplinary context under applicable statute ## Opinion text OPALA V.C.J., with whom WINCHESTER, J., joins, dissenting. T1 Respondent's exoneration of ' disciplinary breach charged in both counts is plainly erroncous. Firstly, a lawyer's intent is wholly irrelevant in an inquiry to determine if there was a violation of ORPC 3.3(a)(1)). 1 The court's reliance on "intent" is *78 henee misplaced. 2 Secondly, there is clear and convineing evidence 3 to support respondent's breach of Oklahoma Rules of Professional Conduct and of Rules Governing Disciplinary Proceedings. 4 Thirdly, the court's act of relieving respondent of the binding effect of her stipulation is, absent compelling equitable considerations, contrary to extant jurisprudence. COUNT I A LAWYER VIOLATES ORPC 3.3(a)(1) BY SUBMITTING TO A COURT A NON-CONFORMING COPY OF A JUDGE'S ORDER T2 By the terms of ORPC 3.3(a)(1) a lawyer is subject to discipline for knowingly presenting any false statement of fact or law to a court. 5 Knowingly-as used in the context of 8.8(a)(1)-means having actual knowledge that may be inferred from the cireumstances. 6 Whether respondent's submission of a non-conforming copy of the Judge's order was intentional or a mere oversight is completely irrelevant. 7 The mere fact that she filed a non-conforming order (subsequently attached to a fee application), along with her admission of liability by stipulation, establishes by clear and convincing evidence actual knowledge and a clear breach of 3.3(a)(1). 8 - Respondent stands in violation of her professional duty to exhibit candor and to provide truthful information to a tribunal. She is hence subject to appropriate discipline. 9 T3 Today's pronouncement disregards respondent's stipulation to her violation of ORPC 3.3(a)(1), although she never asked this court to be relieved of her solemn commitment to the admission. Because her stipulation concedes the critical fact at issue, this court is now powerless, absent compelling equitable circumstances, 10 to *79 reject sua sponte the legal consequences of her admitted fact. Equitable cireumstances are totally absent here. T4 Respondent failed to adduce the only proof that could refute her implied or inferred knowledge of the breach. That refutation called for invoking the defense of automatism. 11 The record is devoid of evidence indicating respondent was unconscious at the time of her wrongful submission of a nonconforming document. 12 Automatism is a defense distinct from that of insanity (where proof of mental disease or defect must be established). To prove an unconscious state, one's condition must be shown to have been beyond one's control and not the result of any voluntary act. 13 When questioned about her failure to file a conforming copy of the order, respondent, on several occasions, avoided giving the PRT a direct answer. 14 CoUNT II RESPONDENTS REFUSAL TO RESPOND TO THE BAR PROSECUTOR'S (GENERAL COUNSEL) INQUIRY VIOLATES ORPC 8.1(b) and 8.4(a), and RGDP 1.3 and 5.2. T5 In the absence of any rule to the contrary, the Bar prosecutor is not required to reveal information pertaining to a grievance unless, of course, it would be critical to respondent's proof of her innocence. 15 Respondent did not demonstrate any need to *80 know the identity of the complainant. No nexus was shown between the identity of that person and respondent's submission of a flawed document. She should have pressed, by orderly process, for discovery of the complainant's identity rather than declining to reveal the information the Bar sought or providing misleading facts. In short, respondent could not insist on conditioning her cooperation upon the Bar prosecutor's willingness to identify the complainant. Respondent's recalcitrant attitude provides vivid proof of her utter disrespect for the law's orderly process. In sum, her refusal to respond to the prosecutor's quest must be treated as a breach of professional discipline. SUMMARY 16 Today's pronouncement needlessly and in disregard of applicable law delivers a mortal blow to the efficient operation of the Bar's prosecutorial service. The court improperly (a) reads an element of intent into the language of ORPC 3.3(a)(1) and (b) relieves respondent-sua sponte and in the absence of compelling equitable considerations-of her solemn admission that she breached - professional - discipline. - The Bar's prosecutor is wrongly placed under duty to disclose the identity of a complainant when that information stands utterly disconnected from a respondent's need for exculpatory proof. Sans any legal warrant, a complainant is stripped today of the anonymity conferred by a time-honored rule of practice in the grievance process. 16 I would impose the discipline recommended by the PRT. . Rule 3.3(a)(1) of the Oklahoma Rules of Professional Conduct (ORPC), 5 0.$.2001, Ch. 1, App. 3-A, provides: "A lawyer shall not knowingly make a false statement of fact or law to a tribunal." . Although I concede that a lawyer's intent may be relevant in determining the extent of discipline to be imposed, I cannot accede to the court's consideration of intent as an element of violation of ORPC 3.3(a)(1). . The terms of Rule 6.12(c), 5 0.$.2001, Ch. 1, App. 1-A, in relevant part, provide: . to warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence." [emphasis supplied] . The Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings are referred to as ORPC and RGDP, respectively. . See supra at note 1. . See ORPC (Terminology), 5, Ch. 1, App. 3-4, provides that "a person's knowledge may be inferred from circumstances." See also Annotated Model Rules of Prof'l Conduct, 2d ed., p. 11 (1992). . See Oklahoma Bar Assoc. v. Johnston, 1993 OK 91 , 863 P.2d 1136, 1143 (1993), which holds that "a 'false statement' to a tribunal, as distinguished from a 'misrepresentation,' requires no proof of 'bad or evil intent, nor must it be material." . Id. at 1144. A violation of ORPC 3.3(a)(1) is established by "any incorrect statement of law or fact made to a tribunal by a lawyer having actual knowledge of its falsity, no matter how insignificant." The Trial Panel Report of the Professional Responsibility Tribunal (Page 4) states, "[the point is-it is the attorney's responsibility to make sure that copies of pleadings that are submitted to the Court Clerk for filing and certification are identical to the original." . Insofar as it is consistent with the disciplinary rules, state law may be invoked as a supplemental source for application in bar disciplinary process. Constructive knowledge of the contents of the non-conforming text of the order stands imputed to respondent by force of the authority contained in the provisions of 12 0.S. Supp.2003 § 2011 and 25 0.8.1987 § 13. The terms of 12 O.S. Supp.2003 § 2011, in relevant part, provide: "Every pleading, motion, and other paper ... shall be signed by at least one attorney or record in his individual name.... The signature of an attorney constitutes a certificate by him that he has read the pleading, motion, or other paper." [emphasis supplied] The terms of 25 0.$.1987 § 13 provide: "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omils to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself." [emphasis supplied] . See Okla. Bar Ass'n v. Abbott, 2000 OK 64 , 11 P.3d 1239, 1241 (2000); Okla. Bar Ass'n v. Livshee, 1994 OK 12 , 870 P.2d 770, 774 (1994); Bonner v. Okla. Rock Corp., 1993 OK 131 , 863 P.2d 1176, 1181 (1993) (stipulations are solemn admissions and generally are binding and conclusive on the parties and on the court unless the court, upon request, finds tenable legal ground for relieving one from the legal effect of the *79 stipulation); Jones v. Lee, 1998 NMCA 008, 126 NM. 467, 971 P.2d 858 (N.M.Ct.App.1998) ("the general rule is that stipulations are ordinarily binding on the parties absent fraud, mistake, improvidence, material change in circumstances, or unless equitable considerations require otherwise"); Monasebian v. DuBois, 293 N.Y.S.2d 27 , 30 A.D.2d 839 (1968) ("[rlelief from stipulations will be granted based on general equitable considerations ... due to circumstances beyond the control of the parties"). . The terms of 21 0.$.2001 § 152(6) provide: "All persons are capable of committing crimes, except those belonging to the following classes: Persons who committed the act charged without being conscious thereof." . See Sellers v. State, 1991 OK CR 41 , 809 P.2d 676, 686 (1991); Jones v. State, 1982 OK CR 112 , 648 P.2d 1251, 1258 (1982). For automatism to afford protection from accountability, the illegal act [or the actor's condition] must be the "result of [an] involuntary act which is completely be-youd the individual's knowledge or control." . See Sellers, supra at 687 ("Examples of automatic conduct are blackouts and epileptic seizures"). . Hearing before the PRT Page 37 (line 23)-Page 39 (line 5) Q. You've read the stipulations that you've endorsed today, have you not? A. Yes. Q. Okay. And you read them with the advice of your attorney, did you not? A. Yes. Q. And have you actively engaged and worked on the drafting of these stipulations to their final format? A. Yes. Q. Okay. And you understand what the stipulations purport to the Court- A. Yes. Q. -and to the Trial Panel members, do you not? A. Yes. Q. And have you entered into these stipulations freely and voluntarily? A. Yes. Q. You understand that the PRT is not bound by the stipulations of fact or law. A. Right Q. You understand the PRT is not bound by the recommendation of discipline, correct? A. Ido. Q. - And you also understand thai the Supreme Court is not bound by these stipulations? A. Yes. Q. The Supreme Court is not bound by the PRI's recommendation. A. Yes. Q. Okay. It's still your intention then to go ahead and enter into these stipulations today A. Yes. Q. -Is that correct? A. Yes. . The terms of RGDP 5.1, 5, Ch. 1, App. 1 A provide: "Each grievance or request for investigation . involving a lawyer ... shall be in writing and signed by the person filing the same, except that the General Counsel ... may, in their discretion, institute an investigation on the basis of facts or allegations involving a lawyer ... brought to their attention in any manner whatsoever." The terms of RGDP 5.2, 5, Ch. 1, App. I-A provide: 'The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline." . See Rule 12-Immunity, American Bar Assoc.-Model Rules for Lawyer Disciplinary Enforcement (1993) ("A policy of conferring absolute immunity on the complainant encourages those who have some doubt about a lawyer's conduct to submit the maiter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed. The individual lawyer may suffer some hardship as the result of the occasional filing of a malicious complaint, but a profession that wants to retain the power to police its own members must be prepared to make some sacrifice to that cause"). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5151935. Public record. Not legal advice.