Opinion

State Ex Rel. Oklahoma Bar Ass'n v. Wolfe

  • 919 P.2d 427
  • 1996 WL 330821
Court
Supreme Court of Oklahoma
Filed
Jul 16, 1996
Status
Published
Author
Kauger
On the bench
Wilson, Kauger, Lavender, Hargrave, Watt, Opala, Simms, Summers
Cited by
21 cases
Authority
More cited than 12.8%

The opinion

KAUGER, Vice Chief Justice,

with whom WATT, Justice, joins, concurring:

I concur in the majority’s decision to suspend the respondent, Earl W. Wolfe (Wolfe/attorney), from the practice of law for a period of two years and one day. The attorney’s repeated offenses of the disciplinary rules warrant severe action geared to redress the wrongs committed.

I write separately to dispel the misperception created by the dissent that there is a revolving door policy for attorneys who are suspended from the practice of law for a period in excess of two years. Rather, the statistics demonstrate that this Court has been a rigorous door keeper and that we exercise our responsibility in disciplinary proceedings by inquiring into and gauging the lawyer’s continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. Discipline is imposed to maintain these goals rather than to punish the attorney. 1

A suspension from the practice of law for a period of two years and one day is tantamount to disbarment in that the suspended attorney must follow the same procedures for readmittance as would a disbarred counterpart. 2 Before an attorney who has been disciplined for more than two years may be *434 readmitted to the practice of law, the lawyer must establish that his/her conduct will conform to the high standards required of a member of the Oklahoma Bar. The applicant must present stronger proof of qualifications than one seeking admission for the first time. 3 In the last ten years, this Court has suspended nine lawyers for two years and one day. 4 Only three of them have been successful in meeting the burden for reinstatement after two-year-and-one-day suspensions. 5 One of the lawyers was barred from practice for three years before being readmitted. 6 One of the attorneys was readmitted to the practice of law after a five-year suspension. 7 One of these practitioners was ultimately disbarred. 8 One of the attorneys has applied for readmission on two separate occasions and this Court has denied both *435 requests. 9 The statistics demonstrate that sixty-six percent (66%) of the attorneys barred from the practice of law for two years and one day have not returned to the practice of law. The figures do not support the statement in the dissent that:

“... These persons are first mustered out of the practice and then quickly brought right back into it. Readmission quests that follow suspensions (for a period of two years and one day or longer) have met with an extraordinarily high incidence of success_” (Emphasis in original.)

The hard core numbers associated with two-year-and-one-day suspensions simply do not support the argument that there is a “pattern” of dealing with disciplined attorneys which brings disrepute on the legal profession.

Before this Court may impose discipline upon an attorney, the charges must be established by clear and convincing evidence. 10 In disciplinary matters, this tribunal exercises exclusive original jurisdiction. 11 Our review is de novo in considering the record presented as well as recommendations for discipline. 12 The ultimate decision rests with this Court. Neither the findings of fact of the trial panel nor its view of the weight of the evidence or credibility of the witnesses bind us. 13 There is no evidence that the Court has shirked any of its duties either by choosing some discipline less harsh than disbarring a practitioner or by cavalierly readmit ting disciplined lawyers to the practice of law.

. State ex rel. v. Bolton, 904 P.2d 597, 602 (Okla.1995); State ex rel. Oklahoma Bar Ass'n v. Far rant, 867 P.2d 1279, 1281 (Okla.1994); State ex rel. Oklahoma Bar Ass'n v. Johnston, 863 P.2d 1136, 1144-45 (Okla.1993); State ex rel. Oklahoma Bar Ass'n v. Raskin, 642 P.2d 262, 267 (Okla.1982).

. Rule 11.1, 5 O.S.1991, Ch. 1, App.l-A, Rules of Disciplinary Proceedings, provides in pertinent part:

"A person whose name has been stricken from the Roll of Attorneys for non-payment of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or disbarred, or who has resigned membership in the Association, may be readmitted to the practice of law only through the following procedures ...”

. Rule 11.4, 5 O.S.1991, Ch. 1, App. 1-A, Rules of Disciplinary Proceedings, provides:

"An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant’s conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court’s former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the applicant complied with Rule 9.1 of these Rules.”

Matter of Reinstatement of Wright, 907 P.2d 1060, 1062 (Okla.1995); Matter of Reinstatement of Moss, 848 P.2d 564 (Okla.1993).

. State ex rel. Brierly, SCBD No. 4072 (Suspended March 26, 1996); State ex rel. Oklahoma Bar Ass 'n v. Busch, SCBD No. 4068 (Suspended March 12, 1996); State ex rel. Oklahoma Bar Association v. Adams, 895 P.2d 701, 706-07 (Okla.1995) [Suspended February 28, 1995, for failure to prosecute cross-petition in action brought against clients, failure to file response for motion for summary judgment, and failure to keep clients informed of status of case by attorney who also had other pending grievances.]; State ex rel. Oklahoma Bar Ass'n v. Evans, 880 P.2d 333, 339 (Okla.1994) [Suspended May 3, 1994, for failure to provide client with competent representation, lack of diligence and promptness in representing clients, failing to keep clients informed and failure to comply with rules governing disciplinary proceedings. Authored by the dissenter.]; Matter of Reinstatement of Smith, 871 P.2d 426, 428 (Okla.1994) [Suspended March 25, 1986, for federal conviction on seventeen counts involving mail fraud, conspiracy to defraud, willfully making and subscribing to false tax returns and wilful failure to disclose financial interest over foreign bank accounts. Attorney petitioned for reinstatement on February 8, 1994 and on April 13, 1993. Because the attorney could not show clear and convincing evidence that reinstatement was warranted, readmission was denied.]; State ex rel. Oklahoma Bar Ass'n v. Kessler, 818 P.2d 463, 467-68 (Okla.1991) [Suspended July 30, 1991, for commingling of client funds, use of client’s money for purposes other than those authorized, and misrepresentation to trial court that money had been used for its intended purpose. The attorney was ultimately barred from the practice of law by this Court in State ex rel. Oklahoma Bar Ass'n v. Kessler, 895 P.2d 713, 719 (Okla.1995)]; State ex rel. Oklahoma Bar Ass’n v. Wright, 792 P.2d 1171 -72 (Okla.1990) [Suspended May 8, 1990, because of felony conviction for distributing cocaine. A petition for reinstatement was filed in December, 1992, and reinstatement was granted in Matter of Reinstatement of Wright, 907 P.2d 1060, 1067 (Okla.1995). This Court found that the attorney presented overwhelming evidence of rehabilitation and that he would in the future conform to the high standards required of a member of the Oklahoma Bar.]; State ex rel. Oklahoma Bar Ass'n v. Moss, SCBD 3536, 3581 [Suspended May 8, 1990, for mishandling client funds — reinstated February 23, 1993, a suspension of almost three years. See, Matter of Reinstatement of Moss, 848 P.2d 564 (Okla.1993). Attorney presented stronger proof of his qualifications than is required of someone seeking admission for the first time.]; State ex rel. Oklahoma Bar Ass'n v. Reeves, SCBD 3300 [Suspended February 2, 1987],

. State ex rel. Oklahoma Bar Ass’n v. Wright, see note 3, supra; State ex rel. Oklahoma Bar Ass’n v. Kessler, see note 4, supra; Matter of Reinstatement of Moss , see note 3, supra.

. Matter of Reinstatement of Moss , see note 3, supra.

. The vote on this applicant, Harvey Russell Wright, was five to four — with the dissenter concurring in the majority opinion. See, State ex rel. Oklahoma Bar Ass’n v. Wright, note 3, supra.

. State ex rel. Oklahoma Bar Ass'n v. Kessler, see note 4, supra.

. Matter of Reinstatement of Smith , see note 4, supra.

. Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A, provides in pertinent part:

"... (c) To warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence, and at least two of the members of the Trial Panel must concur in the findings.”

State ex rel. Oklahoma Bar Ass'n v. Farrant, see note 1, supra; State ex rel. Oklahoma Bar Ass'n v. Gasaway, 810 P.2d 826, 830 (Okla.1991); State ex rel. Oklahoma Bar Ass'n v. Braswell, 663 P.2d 1228, 1232 (Okla.1983).

. State ex rel. Oklahoma Bar Ass’n v. Farrant, see note 1, supra; State ex rel. Oklahoma Bar Ass’n v. Gasaway, see note 10, supra; State ex rel. Oklahoma Bar Ass'n v. McMillian, 770 P.2d 892, 894 (Okla.1989).

. State ex rel. Oklahoma Bar Ass'n v. Farrant, see note 1 at 1284, supra; State ex rel. Oklahoma Bar Ass'n v. Gasaway, see note 10 at 830-31, supra; State ex rel. Oklahoma Bar Ass’n v. Stubblefield, 766 P.2d 979, 982 (Okla.1988).

. State ex rel. Oklahoma Bar Ass’n v. Bolton, 904 P.2d 597, 601 (Okla.1995); State ex rel. Oklahoma Bar Ass’n v. Farrant, see note 1 at 1284, supra.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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