In this proceeding against a lawyer for imposition of professional discipline the issues to be decided are: (1) Is the record, consisting of the stipulated facts, sufficient for de novo review? (2) Should a lawyer's incapacity to practice law be considered in a Rule 6 disciplinary proceeding? and (3) Is public reprimand the appropriate disciplinary sanction to be imposed for respondent's professional misconduct? We answer all the issues in the affirmative.
Patrick Donnelly [Donnelly or respondent], a licensed lawyer, was charged by the Oklahoma Bar Association [Bar or complainant] with one count of professional misconduct and with failing to report his alcoholic affliction at an earlier disciplinary proceeding. The Bar and Donnelly then entered into a stipulation of facts and agreed conclusions of law with a joint recommendation for public censure to be imposed as discipline for the charged professional misconduct. A panel of the Professional Responsibility Tribunal [PRT] adopted the parties' offer for an agreed disposition of the proceeding.
STIPULATION OF FACTS AS TO COUNT I
In late December of 1988 or early January 1989 Charles and Dorothy Mayfield delivered several invoices to respondent's office. These invoices indicate that an entity known as Diversified Well Services owed the Mayfields' business, Wireline, $14,260 for work performed by the latter in plugging abandoned wells, and $11,308.67 for tools lost in the hole.
Some time after turning the invoices over to Donnelly, the Mayfields asked him for a status report. Donnelly told them he had filed a lawsuit against Diversified; that Diversified had failed to answer; that he had taken a default judgment against the company; and that a hearing on assets would soon be held. Donnelly provided the Mayfields with a district court number for the case, though in fact he never filed one. The number so given was that of an unrelated case. Donnelly continued to deceive his clients until October or November of 1989, when he advised Charles Mayfield of the true facts: no case had been filed and no judgment taken.
The Mayfields retained other counsel who then filed suit. The Bar and Donnelly believe that the Mayfields settled their suit against Diversified Well Service for $15,750 plus $1,679 for attorney's fee and costs, and that Diversified paid $1,679 at the time of the settlement with the balance to be paid over a period of months.
AGREED CONCLUSIONS OF LAW AS TO COUNT I
The parties concede that Donnelly's conduct violates the mandatory provisions of Rules 1.3, 1.4, and 8.4(c) of the Oklahoma Rules of Professional Conduct
ALLEGATION TO ENHANCE DISCIPLINE
In another disciplinary proceeding Donnelly received on September 28, 1989 a private Supreme Court reprimand for conduct involving dishonesty, fraud, deceit or misrepresentation, neglect and for failing to carry out a contract of employment for professional services, all in violation of DR 1-102(A)(4), DR 6-101(A)(3) and DR 7-101(A)(2), Code of Professional Responsibility.
CONCESSION AS TO AVAILABLE MITIGATION
The parties submit that if respondent were called to testify, he would state that his professional misconduct in this and in the September 1989 disciplinary proceedings was actuated by his addiction to alcohol. He would further testify that on December 5, 1988 he entered an outpatient program at Presbyterian Hospital and completed it on December 14, 1989. Since December 14, 1989 respondent has regularly attended Alcoholics Anonymous meetings. Lastly, respondent would testify that since December of 1989 alcohol has not compromised or impeded his professional work. The Bar, on the other hand, would concede that no complaints of unprofessional conduct have been brought against respondent since December of 1989.
THE PARTIES' RECOMMENDED DISCIPLINE
The parties recommend that public reprimand be imposed as disciplinary sanction and that respondent be supervised by a designated member of the Lawyers Helping Lawyers Committee
In support of their recommendation the parties state that while respondent has been disciplined previously for alcohol-related professional misconduct, he did not then reveal his alcohol dependency. Because of respondent's continued abstention from alcohol, the parties believe that a suspension is not necessary for the public's protection.
THE RECORD BEFORE THE COURT IS COMPLETE FOR A DE NOVO REVIEW OF ALL FACTS RELEVANT TO THIS PROCEEDING
In bar disciplinary proceedings the Oklahoma Supreme Court has exclusive original jurisdiction.
The instant case presents two concerns: Donnelly's professional misconduct and his alcohol affliction. He has admitted all the allegations of the complaint. The record adequately explores the details of his professional misconduct. The sole question is whether the material before us adequately reflects the extent of Donnelly's professional incapacity from alcoholism.
Donnelly testified at the hearing that he had not had a drink of alcohol since July 22, 1988. He agreed to sign a "contract" with Lawyers Helping Lawyers to attend for a year four Alcoholics Anonymous meetings per week. If Donnelly fails to attend, his designated member-sponsor from Lawyers Helping Lawyers, whom he must see weekly, will report him to the Bar's General Counsel with a view to suggesting additional disciplinary measures. The parties stipulated Donnelly was legally competent and not currently consuming alcohol. The record is hence complete in the sense that it is adequate for our de novo review of Donnelly's professional misconduct and of his alcohol-related incapacity, if any, to practice law.
A LAWYER'S INCAPACITY TO PRACTICE MAY BE CONSIDERED IN A RULE 6 DISCIPLINARY PROCEEDING
In a disciplinary proceeding the court's responsibility is not to punish but to inquire into the lawyer's continued fitness, with a view to safeguarding the interests of the public, of the courts and of the legal profession.
A Rule 10 proceeding
As for Donnelly's case, it is appropriate to take into account his alcoholism as both potentially incapacitating in the Rule 10
A PUBLIC REPRIMAND IS AN APPROPRIATE SANCTION FOR RESPONDENT'S PAST PROFESSIONAL MISCONDUCT
Lawyer misconduct falls within two basic categories: serious and minor.
Donnelly has been charged with lacking diligence and promptness in representing his client,
In State ex rel., Oklahoma Bar Association v. Rozin
The PRT's recommendation that Donnelly be publicly reprimanded is adopted. Donnelly must (a) not only be supervised by a designated member of the Lawyers Helping Lawyers Committee
Respondent is publicly reprimanded for the misconduct of which he stands charged and ordered to pay costs.
All Justices concur.
The terms of Rule 10.1(c) are:
The terms of Rule 10.2 are:
Donnelly's case is distinguishable from Ledbetter. Donnelly recognized he had a problem, sought treatment, and informed his client of his misconduct. He did this on his own, before disciplinary proceedings were brought against him. This conduct is different from that of the lawyer who seeks treatment after disciplinary proceedings have been instituted against him. It is doubtful that Donnelly's alcoholism alone would be considered a mitigating factor if he had not recognized his problem and sought treatment. Allowing Donnelly to use his affliction as mitigation in these circumstances affords an incentive for other lawyers to seek help before misconduct arises or progresses to a more serious stage.
Ledbetter is distinguishable for yet another reason. When Ledbetter confronted disciplinary proceedings legal sale of alcohol was interdicted. See 18th Amend, U.S. Const. (1919), repealed 1933. Today, alcohol sales are licensed by the state. 37 O.S. 1991 §§ 163.1 et seq. and §§ 502 et seq. Moreover, Ledbetter labels alcoholism as "voluntary." This is contrary to present-day philosophy which views alcoholism as a disease requiring treatment rather than mere vice. When alcoholism is tendered as a mitigating factor there must be some causal relationship between one's alcoholic affliction and the professional misconduct charged.