On February 14, 1989 the respondent, Richard V. Armstrong, was given a suspended sentence of five (5) years and a $2,000 fine upon a conviction of Driving While Under the Influence of Intoxicating Liquor, Second Offense, for violating 47 O.S. § 11-902. The incident resulting in Respondent's conviction occurred January 31, 1986. The General Counsel of the Bar Association transmitted certified copies of the information and judgment of conviction to this court for a summary disciplinary proceeding in accordance with Rules 7.1-7.7 of the Rules Governing Disciplinary
Rule 7.3 of those Rules provides that "[u]pon receipt of the certified copies of such indictment or information and the judgment and sentence,
The issue at this point is whether the respondent's conviction demonstrates his unfitness to practice law. We find that such a determination cannot be made on the record as it stands presented to the court. We refer the proceeding to the Professional Responsibility Tribunal for a hearing with the appropriate findings, conclusions, and subsequent report to this court. In order to understand why such a result is called for in this case we must explain some of the recent procedures in summary disciplinary proceedings.
Two important changes were made when the Rules were revised in 1966. Discipline was no longer based upon a lawyer's conviction of "a felony" but on "a felony involving moral turpitude", and the lawyer was given the opportunity to show cause why discipline should not be imposed prior to the lawyer's interim suspension. 5 O.S. Supp. 1967, Ch. 1, App. 1, Art. IX, § 11. This showing was made to the Bar which then transmitted the record and its recommendation concerning the discipline to the court. Id. See also the pre-suspension procedure described in State ex rel. Oklahoma Bar Association v. Seelye, 490 P.2d 1095, 1096 (Okla. 1971).
The 1981 version of the rules continued to provide for a post-suspension show cause hearing for the convicted lawyer. 5 O.S. 1981, Ch. 1, App. 1-A, Rules 7.3 and 7.4. However, the 1981 version no longer
This review shows that under the former rules the scope of the court's inquiry was limited to ascertaining whether the lawyer was convicted of "a felony", "a felony involving moral turpitude", or "a crime involving moral turpitude". Facts attendant to a lawyer's conviction were not considered. Whether a lawyer's conviction constituted a crime involving moral turpitude was simply a matter of whether the crime involved such conduct due to the nature of the crime committed. State ex rel. Oklahoma Bar Association v. Jones, supra. Therein we said:
Thus, the court imposed an interim suspension based solely on the nature of the crime committed. Generally, the court did not examine the surrounding circumstances of a conviction prior to the interim order of suspension; however, the court would consider such circumstances prior to the final order of discipline. State ex rel. Oklahoma Bar Association v. Simms, 590 P.2d 184, 185 (Okla. 1978). The 1981 version of
The 1981 version allows an interim suspension of a lawyer's license to practice law based on a lawyer's conviction "of a crime which demonstrates such lawyer's unfitness to practice law". We believe the scope of inquiry includes the particular lawyer's unfitness to practice law and not merely the type of crime the lawyer stands convicted of. In the case of Matter of Oliver, 493 N.E.2d 1237 (Ind. 1986), the Supreme Court of Indiana observed the following:
What the Indiana court said with respect to crimes involving moral turpitude we believe to be applicable to crimes demonstrating a lawyer's unfitness to practice law. A lawyer's conviction of some crimes will, by itself, demonstrate such lawyer's unfitness to practice law. On the other hand, a lawyer's conviction for some kinds of illegal conduct will not facially demonstrate the lawyer's unfitness to practice law. This principle is recognized in a Comment to Rule 8.4 of the Rules of Professional Conduct. That Comment states in part:
In Oliver, supra, the lawyer was convicted of Driving While Intoxicated, a misdemeanor. In the case before this court the lawyer was convicted of a felony. Clearly, when a member of the bar is convicted of a felony such conduct brings the bench and bar into disrepute. Kentucky Bar Association v. Jones, Ky., 759 S.W.2d 61, 63 (1988). In the case before us the lawyer's conviction is based upon an improper use of alcohol. Discipline as severe as disbarment may be the appropriate measure to protect the public when a lawyer is found to have a drug and/or alcohol problem which impairs the lawyer's competence as an attorney. Matter of Lovell, 257 Ga. 193, 357 S.E.2d 92 (1987). In response to these concerns the respondent argues that he has successfully completed rehabilitation programs and that his fitness to practice law is not presently impaired.
In the case of In re Carr, 46 Cal.3d 1089, 252 Cal.Rptr. 24, 761 P.2d 1011 (1988), the court imposed discipline on a lawyer who had been convicted of driving under the influence of alcohol on two occasions. However, the court first referred the two convictions to the State Bar for a hearing, report and recommendation as to whether the circumstances surrounding the offense warranted discipline and, if so found, the discipline to be imposed. Id. 252 Cal. Rptr. at 24, 761 P.2d at 1011. A similar procedure is called for in the case before us today.
We refer the matter to a trial panel of the Professional Responsibility Tribunal. The issue before the trial panel will be the respondent's "fitness" to practice law.
The Judgment and Sentence of conviction is already of record in this proceeding. The trial panel should consider such conviction in light of the surrounding circumstances, as shown by the evidence before the panel, and recommend whether such conviction demonstrates the respondent's unfitness to practice law. The trial panel shall then file a report with this court in conformity with 5 O.S. 1981, Ch. 1, App. 1-A, Rule 6.13.
OPALA, V.C.J., and HODGES, DOOLIN and ALMA WILSON, JJ., concur.
KAUGER, J., concur in result.
HARGRAVE, C.J., and LAVENDER, J., dissent.
SIMMS, J., disqualified.