¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition?
INTRODUCTION TO THE RECORD
¶ 2 On 28 March 2000, the Oklahoma Bar Association (the Bar) commenced this disciplinary proceeding against Cordes Martin Giger (respondent), a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings ("RGDP").
¶ 3 On 27 September 2000, a trial panel of the Professional Responsibility Tribunal held a hearing to consider the charges. At the commencement of the hearing, the trial panel admitted into evidence a document containing the parties' stipulations of fact, conclusions of law, and an agreed disciplinary recommendation. Respondent admitted by stipulation that his conduct violated RGDP Rules 1.3
¶ 4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued a report that incorporated the parties' stipulations. The panel also described with greater specificity respondent's illnesses and the problems he experienced with prescription medications, and recognized for purposes of mitigation his acceptance of responsibility for his professional misconduct and his otherwise unblemished
THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL
DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING
¶ 5 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.
¶ 6 The court's duty can be discharged only if the trial panel submits to us a complete record of the proceedings.
¶ 7 Having carefully scrutinized the record submitted to us in this proceeding, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct.
FACTS ADMITTED BY STIPULATION
¶ 8 The parties have tendered their stipulations in which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement between the parties that establishes a particular fact or facts in controversy. It serves as an evidentiary substitute dispensing with the need for legal proof of the agreed fact or facts. Stipulations are subject to the approval of the court in which they are entered.
Counts One and Two-Failure to Respond to the Bar
¶ 9 Respondent admits the allegations in Counts One and Two of the complaint that he failed to respond to the investigative inquiries of the Bar in relation to two grievances, including requests for information sent by the Bar after the grievances had been opened for formal investigation. We accept respondent's stipulation — and find by clear and convincing evidence — that this conduct violated RGDP Rule 5.2.
Count Two-The Carla Pierce Grievance
¶ 10 Respondent was retained by Carla Pierce to defend her against criminal charges filed in the District Court of Cleveland County. Respondent admits that on 25 June 1999 he arrived late for Pierce's preliminary hearing, asked only a limited number of questions, exhibited slurred speech, and appeared to be under the influence of some unknown substance.
Count Three-Vehicular Drug-Related Arrests
¶ 11 Respondent admits that he entered a plea of guilty or of no contest to the following six criminal charges involving drug use and possession:
Respondent stipulates that the conduct evidenced by these criminal charges violates the provisions of RGDP Rule 1.3 and ORPC Rules 8.4(b) and 8.4(d).
Count Four-The Linda Slavings Grievance
¶ 12 Respondent was retained by Linda Slavings to represent her in a workers compensation case. They agreed that respondent would receive checks on Slavings' behalf from the State Insurance Fund, deposit them, and then disperse the funds to Slavings. Respondent admits that he deposited some of the checks into a non-trust account. Although respondent ultimately delivered to Slavings all funds to which she was entitled, Slavings had to contact him at least once to cover a check returned for insufficient funds.
¶ 13 Respondent also admits that he was engaged by Slavings to represent her in a federal civil rights action. He concedes that he filed the lawsuit out of time and failed timely to serve the defendants. The record also shows that respondent failed to respond to a motion to dismiss Slavings' suit. Respondent stipulates that as a result of his neglect, Slavings' claim is time-barred. Respondent stipulates that his misconduct violated ORPC Rules 1.1, 1.2, 1.3, and 1.15.
FACTORS TO BE CONSIDERED IN MITIGATION OF THE DISCIPLINE TO BE IMPOSED
¶ 14 Mitigating circumstances may be considered in assessing the appropriate quantum of discipline.
¶ 15 The record provides only a tenuous connection between respondent's other ethical lapses and his prescription drug problem or fails to show any relationship at all. In the latter category is respondent's possession of marijuana and drug paraphernalia, which respondent admitted was unrelated to his medical problems, and his substandard representation of Linda Slavings, which occurred over a year before respondent's prescription drug problem — as evidenced by his arrests — began.
¶ 16 Neither the fact that a lawyer suffers from a debilitating illness nor the side effects of medication prevents the imposition of discipline or mitigates its severity where professional standards are breached.
¶ 17 We also note that respondent has no prior bar disciplinary record and has expressed acceptance of responsibility for his disciplinary problems.
RESPONDENT'S MISCONDUCT WARRANTS A SUSPENSION OF HIS LICENSE TO PRACTICE LAW FOR ONE YEAR TOGETHER WITH TWO YEARS OF CONDITIONED SUPERVISION AND THE PAYMENT OF THE COSTS OF THIS PROCEEDING
¶ 18 A license to practice law is not conferred for the benefit of the licensee,
¶ 19 The parties stipulated and the trial panel recommended that respondent be suspended from the practice of law for ninety (90) days. Respondent also agreed to submit for a period of one year to substance-abuse testing and to become involved with the Lawyers Helping Lawyers Committee. Were all of respondent's misconduct iatrogenic, we would be inclined to accept the trial panel's recommendation as sufficient to vindicate the interests we are bound to protect. For the reasons to be stated below, we reject the recommendation and impose instead a suspension from the practice of law for a period of one year together with a two-year period of conditioned supervision, both to begin on the day this opinion becomes final, and the payment of the costs of this proceeding.
¶ 20 Today's assessment of a more severe discipline than that which was recommended stems in part from our concern with this respondent's sluggish reaction to the warning signs of substance abuse. The substance-abuse problem that brought respondent before us today clearly interfered with his ability properly to discharge the responsibilities of a legal practitioner. Yet the record contains no evidence that respondent took any action to address his problem until six criminal cases were pending against him in three different Oklahoma counties. At no time within the sixteen months during which he was repeatedly stopped by police for drug-related vehicular crimes did respondent demonstrate an ability to recognize his impairment or a willingness to seek help for it. His unresponsiveness to these warning signs causes us to question whether his continued licensure — without monitoring of his ongoing fitness — is in the best interest of his clients, the public, and the legal profession.
¶ 21 Adding to our sense that respondent's conduct calls for greater judicial intervention than that which has been recommended is the fact that respondent's first arrest involved not just prescription drugs, but also the possession of an illicit drug — marijuana — and drug paraphernalia. Whatever diminution of discipline might otherwise flow from the fact that respondent's larger drug problem was iatrogenic is diminished by the fact that he was dabbling at the same time in illegal drugs, conduct which indicates an indifference to legal obligation. The public must have confidence that the legal profession, which is self-regulated, will not look the other way when its members break the law. Equally important, members of the Bar must be reminded that substance abuse of any kind is incompatible with the practice of law.
¶ 22 Besides his drug-related misconduct, respondent also admitted that he ignored correspondence from the Bar regarding two grievances, including inquiries sent to him after the grievances were opened for formal investigation. In both cases, the Bar was required to issue a subpoena and take respondent's deposition in order to obtain his cooperation. He admitted commingling the funds of a client with his personal funds.
¶ 23 The cumulative impact of respondent's transgressions requires not only that he be suspended for more than a token period of time for his past misconduct,
¶ 24 If at any time during the two-year period of conditioned supervision the General Counsel of the Oklahoma Bar Association concludes that respondent has violated any of the terms of his supervision, the Bar may file an application with the original trial panel to impose discipline for that violation. Notice of the filing of the application shall be sent to the respondent by certified mail. The trial panel shall then schedule a hearing on the application and make a determination as to whether respondent has violated the terms of his supervision. If the trial panel determines that no violation has occurred, the period of conditioned supervision shall continue. If the trial panel finds a violation did occur, then a record of the proceedings sufficient for our de novo review together with a recommendation for an appropriate discipline shall be forwarded to this court.
¶ 25 The record in this case provides clear and convincing evidence that respondent engaged
¶ 27 WATT, V.C.J., and HODGES, LAVENDER, OPALA, KAUGER, SUMMERS, BOUDREAU and WINCHESTER, J.J., concur.
¶ 28 HARGRAVE, C.J., concurs in part and dissents part.
HARGRAVE, C.J., concurring in part and dissenting in part.
¶ 1 I dissent from the court's imposition of a one-year suspension. I would suspend respondent's license for two years and a day.
"The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court."
"The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."
"shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon expressed constitutional grounds. . . . 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. The General Counsel shall make such further investigation of the grievance and response as the General Counsel may deem appropriate before taking any action."
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."
"(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d) and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer may limit the objectives of the representation if the client consents after consultation.
(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
"A lawyer shall act with reasonable diligence and promptness in representing a client."
"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
"(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the written consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. . . ."
"It is professional misconduct for a lawyer to:. . .
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . ."
"It is professional misconduct for a lawyer to:. . .
(d) engage in conduct that is prejudicial to the administration of justice; . . ."
"The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate."
"Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel's findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat. . . ."