STATE EX REL. OKLAHOMA BAR ASS'N v. Conrady

KAUGER, J.,

concurring specially.

{1 The respondent, James Albert Conra-dy (respondent) committed the crimes that led to this disciplinary action on February 1, 2009. On February 2, 2009. 1 the court *141 records of Okmulgee County reflect that Respondent was charged with, among other offenses, Carrying Weapons Under the Influence of Alcohol. 2

1 2 I agree that this is a situation in which discipline is warranted. I agree that the discipline invoked is appropriate. However, I am concerned about the procedure the OBA used in the handling of this matter. The decision not to seek the suspension of the respondent is reminiscent of In the Matter of the Reinstatement of Fraley, 2005 OK 39 , 115 P.3d 842 , where the procedures for resignation were circumvented. In Fraley, the respondent misappropriated funds belonging to the firm for which he worked and from its clients. An agreement was made between the founder of Fraley's firm, his lawyer, and Fraley, and implicitly with the knowledge of the OBA, that he would resign from the OBA and he would be employed by the firm as a law clerk to earn money to pay back his thefts. The firm had reimbursed the client funds. The OBA allegedly learned of his misconduct after his resignation and did not pursue a disciplinary action against him because there was no loss to the client security fund. We strongly disapproved of the informal resignation. 3

3 Here, we are confronted with another informal handling of discipline in which the rules were not followed. The court clerk of Okmulgee County failed to comply with 5 0.S.2011, Ch. 1 App.l-A, Rule 7.2 and the OBA failed to notify us. 4

T4 Title 5 0.S.2011, Ch. 1 App.l-A, Rule 7.3, Rules Governing Disciplinary Proceedings provides:

Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court shall by order immediately suspend the lawyer from the practice of law until further order of the Court. In its order of suspension the Court shall direct the lawyer to appear at a time certain, to show cause, if any he has, why the order of suspension should be set aside. Upon good cause shown, the Court may set aside its order of suspension when it appears to be in the interest of justice to do so, due regard being had to maintaining the integrity of and confidence in the profession.

Had the Chief Justice received proper notice of the judgment, the respondent would have been suspended from the practice of law immediately. Although there is a procedure for diversionary action by the bar upon a complaint under 5 0.8.2011, Ch. 1 App.l-A, Rule 5.1, Rules Governing Disciplinary Proceedings, this was not pursued by the OBA, *142 presumably because felony charges were involved. 5

15 On respondent's behalf, a member of the Oklahoma Bar properly notified the OBA of respondent's arrest shortly after it occurred. 6 Respondent, in a letter to a friend, dated March 9, 2009, wrote:

Warren self reported to the OBA for me with my permission. Warren made a deal that if I agreed not to practice, the OBA agreed to not suspend my license until further proceedings. 7

The respondent also contacted Lawyers Helping Lawyers and used its hotline and volunteers. 8 He left Oklahoma and sought treatment in Texas, but he returned to Oklahoma during the pendency of his eriminal case. 9 The inference from the record is that he continued to practice law and that he had legal work pending over two years later, at the time of the disciplinary hearing on May 24, 2011, and in fact, there was no prohibition against his doing so. 10

16 On June 15, 2010, a court minute was filed indicating that respondent pled no contest to the crimes with which he was charged. 11 On October 13, 2010, respondent entered a plea of guilty to all crimes with which he was charged; respondent was sentenced on December 15, 2010. 12 The minute for the sentencing was filed on December 20, 2010. 13

T7 Rod Wiemer (Wiemer), respondent's attorney, notified the OBA's General Counsel of the conviction by letter, dated December 22, 2010. 14 The OBA opened an investigation on January 14, 2011, and filed a disciplinary complaint against the respondent on March 16, 2011, more than two years after he was charged, nearly a year after he first pled nolo contendere and almost three months after receiving the judgment and sentence. Nothing concerning the conviction was ever sent to this Court.

18 At the hearing before the PRT, the general counsel of the OBA, confirmed that there was no interim suspension of respondent. Counsel said:

Rule 7 proceedings require a judgment and sentence to be in place and they usually are filed as soon as that is done and *143 that's done pretty contemporaneously with the crime, to interim suspend someone. They were not done in this regard because Mr. Conrady, upon being charged, shortly thereafter, did leave the jurisdiction, go for help, take himself out of the practice of law, so we did not pursue a 7 for those reasons because he was actively seeking treatment, he reported that he was doing so, he left his law practice, he wasn't being a danger of a threat or risk to his clients, so we waited until the sentencing, which occurred at the end of December, and went forward at that point under a Rule 6 proceeding. 15

T9 Apparently, the OBA elevated respondent's self suspension to either a suspension by this Court or to a diversionary suspension contract; neither happened. The provisions of 5 0.$.2011, Ch. 1 App.1-A, Rule 7.3 do not equate an informal agreement with the OBA to a suspension by the Oklahoma Supreme Court. Apparently, the Respondent did not permanently "self suspend" during a diversion process after his criminal acts. 16 A formal suspension was necessary under 5 O.S. 2011 , Ch. 1 App.l-A, Rule 7.3 because of felony acts for which he first pled nolo con-tendere and then guilty. Even if the OBA had chosen to use the diversionary program, a program within its sole discretion, there was no formalization of it.

1 10 We control and regulate the practice of law in Oklahoma. Fraley, supra, teaches that the OBA lacks the authority to decide if an attorney should or should not be permitted to resign without formal approval of this Court. 17 The duties of enforcement and prosecution are placed with the OBA for constitutional reasons. 18 However, the OBA must follow the rules and the rules are mandatory that lawyers be suspended after a felony conviction. 19 It is the mandatory duty of the clerk in a county where a lawyer is convicted to forward the judgment and sentence within five (5) days. It has been the practice for the general counsel of the OBA to promptly notify this Court when a certified copy of a judgment and sentence upon a guilty plea is received. 20 Upon the OBA's receipt of a certified copy of the judgment and sentence, this court should have been asked to suspend respondent. 21 If a licensing authority is not advised of criminal actions by the persons it regulates, it cannot fulfill its duties. 22

{ 11 The OBA could also have examined its responsibility as set out under 5 0.98.2011, *144 Ch. 1 App.1-A, Rule 6.28 and under 5 O.S. 2001 , Ch. 1 App.1-A, Rule 10.2. 23 No formal investigatory process was made as to whether the respondent was capable of practicing law or whether the public was served by the failure of the OBA to seek a temporary suspension of respondent's license. This court stated, in State ex rel. Oklahoma Bar Association v. Albert, 2007 OK 31, ¶ 11 , 163 P.3d 527 :

The responsibility of this Court in disciplinary proceedings is not to punish but rather to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession....

No formal investigation was made by the Bar into this matter until almost two years after the respondent's criminal acts. Respondent pled guilty to six charges, of which two were felonies. This court cannot protect the pub-lie without the OBA fulfilling its duties as set forth in Fraley, supra.

112 The delay in the suspension/disciplinary process was also a disservice to respondent. Had the OBA started Rule 10 proceedings at the time it had notice of respondent's probable inability to practice law, over two years of delay between the initial criminal actions and the disciplinary proceedings would have been avoided. 24 Had the OBA started Rule 10 proceedings in a timely manner, the time line for respondent's potential reinstatement would have been accelerated instead of beginning with the promulgation of the majority opinion more than three years later.

. The Oklahoma Bar Association (OBA), had notice that the respondent had allegedly been under the influence of alcohol on February 1, 2009; one of the charges against respondent was an alcohol related offense. He committed a felony while in possession of a firearm. He caused malicious injury to two automobiles. These are not the actions of a man in sterling mental condition. Although the crimes which led to disciplinary action occurred in 2009, references are to the current version of the disciplinary rules because the substantive portions have remained unchanged since 2009. The OBA failed to follow the requirements of Rule 10.2, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App.1-A, which has not been amended since it was enacted, and states in part, "Whenever it has been determined that a lawyer is personally incapable of practicing law, his license to practice shall be suspended until reinstated by order of this Court." No determination was made by the OBA as to the respondent's competency to practice law. It is clear from the facts of the case, that a "gentlemen's agreement" that respondent cease practicing law does not result in a total cessation of the practice of law, nor does it ensure independent medical verification of mental stability upon a return to practice.

This represents yet another in a string of bar cases in which the attorney may have been incapable of practicing law and the OBA did not proceed under Rule 10 ef seq, Rules Governing Disciplinary Proceedings, 5 O.S.2011 Ch., App.1-A. See, e.g., State ex rel. Oklahoma Bar Association v. Burns, 2006 OK 75 , 145 P.3d 1088 , State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49 , 142 P.3d 410 ; State ex rel. Oklahoma Bar Association v. Rogers, 2006 OK 54 , 142 P.3d 428 ; State ex rel. Oklahoma Bar Association v. Chapman, 2005 OK 16 , 114 P.3d 414 ; State ex rel. Oklahoma Bar Association v. Hummel, 2004 OK 30 , 89 P.3d 1105 ; State ex rel. *141 Oklahoma Bar Association v. Adams, 1995 OK 17 , 895 P.2d 701 ; State ex rel. Oklahoma Bar Association v. Thompson, 1993 OK 144 , 864 P.2d 339 , State ex rel. Oklahoma Bar Association v. Garvin, 1989 OK 97 , 777 P.2d 926 ; State ex rel. Oklahoma Bar Association v. McCurtain, 1989 OK 4 , 767 P.2d 427 .

. District Court of Okmulgee County, Court Minute dated 2-2-09 and filed February 3, 2009.

. In the Matter of the Reinstatement of Fraley, 2005 OK 39, ¶¶ 26-29 , 115 P.3d 842 :

To our knowledge this decision by the Office of the General Counsel to abstain from investigating and prosecuting a member of the Bar who has committed an act of such serious misconduct is unprecedented. The reasoning offered by the Bar as justification for the exercise of its discretion in favor of inaction is most unpersuasive. ... We believe Mr. Fraley and the Bar have been less than fully candid with this Court about the events surrounding his resignation and its acceptance. [There is al ... very strong inference that the Bar had agreed to accept his resignation ... and that Mr. Fraley knew it would be accepted as submitted. It is this prior knowledge that explains why he submitted a resignation that is patently non-compliant. ...

. Title 5 0.$.2011, Ch.1 App.1-A, Rule 7.2, Rules Governing Disciplinary Proceedings, which provides:

The clerk of any court within this State in which a lawyer is convicted or as to whom proceedings are deferred shall transmit certified copies of the Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and judgment and sentence of conviction to the Chief Justice of the Supreme Court and to the General Counsel of the Oklahoma Bar Association within five (5) days after said conviction. The documents may also be furnished to the Chief Justice by the General Counsel. Such documents, whether from this jurisdiction or any other jurisdiction, shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules.

. Title 5 0.S. Supp.2011, Ch.1 App.1-A, Rule 5.1, Rules Governing Disciplinary Proceedings provides:

... (c) In a matter involving lesser misconduct, as defined in Rule 5.1(d), prior to the filing of formal charges, the Office of General Counsel may refer the respondent to the diversionary program. Such program may include, but is not limited to, law office management assistance, Lawyers Helping Lawyers, psychological counseling, continuing legal education programs, and professional responsibility classes. Before referring the respondent to the diversionary program, the Office of General Counsel shall consider the following criteria:

(1) the nature of the misconduct alleged,

(2) whether the misconduct alleged appears to be an isolated event,

(3) whether participation in the diversionary program could benefit the respondent, and

(4) whether participation in the diversionary program might jeopardize protection of the public.

(d) Lesser misconduct is misconduct that does not warrant a sanction restricting the respondent's license to practice law. The misconduct alleged shall not be considered lesser misconduct if any of the following considerations apply....

. Transcript of the May 24, 2011, Hearing Before the Professional Responsibility Tribunal, Page 31.

. Transcript of the May 24, 2011, Hearing Before the Professional Responsibility Tribunal, Exhibit 5, Page 46.

. Transcript of the May 24, 2011, Hearing Before the Professional Responsibility Tribunal, Pages 31-33.

. Transcript of the May 24, 2011, Hearing Before the Professional Responsibility Tribunal, Pages 26-33.

. Transcript of the May 24, 2011, Hearing Before the Professional Responsibility Tribunal, Pages 90-93.

. District Court of Okmulgee County, Docket Sheet/Case Detail, CF 2009-00022, retrieved 3-08-12, On Demand Court Records.

. District Court of Okmulgee County, Docket Sheet/Case Detail, CF 2009-00022, retrieved 3-08-12, On Demand Court Records.

. District Court of Okmulgee County, Docket Sheet/Case Detail, CF 2009-00022, retrieved 3-08-12, On Demand Court Records.

. Transcript of the May 24, 2011 Hearing Before the Professional Responsibility Tribunal, Page 11, Lines 8-11.

. Transcript of the May 24, 2011 Hearing Before the Professional Responsibility Tribunal, Pages 123-124.

. Title 5 0.S.2011, Ch. 1 App.l-A, Rule 5.1, Rules Governing Disciplinary Proceedings, does allow a diversion of a grievance through a contract procedure:

.... The Office of General Counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances of the respondent and the misconduct alleged. In each case, the contract shall be signed by the respondent and the General Counsel, or the General Counsel's representative. The contract shall provide for oversight of all conditions attached to the diversion, and that the respondent shall pay all costs incurred by virtue of the diversion. The contract may be amended upon agreement of the parties. (f) The contract shall include a specific acknowledgment that a material violation of a term of the contract renders voidable the respondent's participation in the program, and that an investigation of the misconduct alleged may then proceed or that the matter may then be forwarded to the Professional Responsibility Commission for its consideration, as. provided in Rule 5.3, RGDP. A material violation of the contract shall be admissible as evidence in a subsequent .... disciplinary proceeding.

. In the Matter of the Reinstatement of Fraley, see note 3, supra at 1 36:

We possess original, exclusive and nondelegable jurisdiction which rests on our constitutionally vested power to control and regulate the practice of law and the licensing, ethics and discipline of attorneys. Matter of Reinstatement of Kamins, 1988 OK 32 , 752 P.2d 1125, 1129 .

. In the Matter of the Reinstatement of Fraley, see note 3, supra at ¶¶ 33-34.

. Title 5 0.$.2011, Ch. 1 App.l-A, Rule 7.3, Rules Governing Disciplinary Proceedings, See T4, supra.

. Rule 7.2, Rules Governing Disciplinary Proceedings, see note 4. supra.

. Rule 7.3, Rules Governing Disciplinary Proceedings, see 1 4, supra.

. In the Matter of the Reinstatement of Fraley, see note 3, supra at ¶¶ 33-34:

The constitution places in the judiciary the responsibility for legislation, prosecution and adjudication in the arena of professional discipline of *144 lawyers. Tweedy v. State ex rel. Oklahoma Bar Association, 1981 OK 12 , 624 P.2d 1049, 1054 ; In re Integration of the State Bar of Oklahoma, 1939 OK 378 , 95 P.2d 113 . Our authority over professional discipline is also conferred by statute. ... We perform the legislative and adjudicative functions directly, but the enforcement or prosecutorial role is placed by our rules with the organs of the Bar in order to meet the demands of constitutional due process. As we cannot constitutionally be both the judge and prosecutor, we may not control directly or indirectly those decisions made in the exercise of prosecutorial judgment as to whether to investigate and commence and prosecute charges. Tweedy v. State ex rel. Oklahoma Bar Association, 624 P.2d at 1054-1055 ; State ex rel. Oklahoma Bar Association v. Minter, 2001 OK 69 , 37 P.3d 763, 768 .

. Title 5 0.S.2011, Ch. 1 App.I-A, Rule 6.2A, Rules Governing Disciplinary Proceedings provides:

(1) Verified Complaint and Service.

The General Counsel, with the concurrence of the chairperson or vice-chairperson of the Professional Responsibility Commission, upon receipt of sufficient evidence demonstrating that a lawyer subject to these Rules has committed conduct in violation of the Oklahoma Rules of Professional Conduct, or is personally incapable of practicing law as set forth in Rule 10 hereof, and where such conduct poses an immediate threat of substantial and irreparable public harm, may file a verified complaint in accordance with Rule 6 hereof requesting interim suspension and other appropriate relief. A copy of the complaint shall be served personally or by certified mail, return receipt requested, upon the respondent by General Counsel; provided that, if a respondent refuses to sign for, or otherwise does not claim the certified mail, then the General Counsel may serve the complaint and any further papers, notices and orders in accordance with Rule 12.1 hereof.

(2) Immediate Interim Suspension.

(a) Upon filing of the verified complaint, the Court may issue an order directing the respondent to object and show cause within ten (10) days why such order of interim suspension should not be entered. ...

Title 5 0.S$.2011, Ch. 1 App.l-A, § 10.2, Rules Governing Disciplinary Proceedings, provides:

Whenever it has been determined that a lawyer is personally incapable of practicing law, his license to practice shall be suspended until reinstated by order of this Court.

. I have long espoused a more frequent use of Rule 10 proceedings. See discussion, note 1, supra.