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

OPALA, V.C.J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record1 submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and (2) Is a public censure and the payment of costs associated with this proceeding an appropriate disciplinary sanction for respondent's breach of professional discipline? We answer both questions in the affirmative.

I.

INTRODUCTION TO THE RECORD

¶ 2 The Oklahoma Bar Association (OBA) charged Robert F. Groshon, Jr. (Groshon or respondent), a licensed Oklahoma lawyer, with three counts of professional misconduct by filing a formal complaint in accordance with the provisions of Rule 6, Rules Governing Disciplinary Proceedings (RGDP).2 The complaint alleges in three counts Groshon's violation of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC)3. The Bar rests its counts on ORPC Rules 1.1,4 1.7(b)(2),5 1.8(b),6 2.1,7 8.4(a) and (d),8 and RGDP Rule 1.3;9 it withdraws its reliance on ORPC Rule 8.4(b).10

¶ 3 The Professional Responsibility Tribunal (PRT) held a hearing on 24 June 2003 to consider the charges. The trial panel recognized for the record the parties' admitted fact stipulations, conclusions of law and agreed disciplinary recommendation. Respondent concedes (by stipulation)that his conduct violates RGDP Rules 1.3 and ORPC Rules 1.1, 1.7(b)(2), 1.8(b), 2.1 and 8.4(a) and (d).

¶ 4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties' stipulations). It recommends that the respondent (1) receive a public reprimand and (2) pay the costs of this proceeding.

II.

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 this court functions as an adjudicative licensing authority that exercises exclusive original jurisdiction.11 Its authority rests on the constitutionally vested, nondelegable power to regulate the practice of law (which includes the ethics, licensure, and discipline of the State's legal practitioners).12 In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, this court conducts a nondeferential, full-scale de novo examination of all relevant facts,13 in which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive.14 We are not restricted by the scope-of-review rules that govern corrective relief on appeal or in certiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.15

¶ 6 This court's duty can be discharged only if the trial panel submits a complete record of the proceedings.16 Our initial task is to ascertain whether the materials are sufficient to permit (a) an independent determination of the critical facts and (b) the crafting of an appropriate measure of discipline.17 The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the respondent lawyer.

¶ 7 Groshon admits, and the proof supports, the charge of professional misconduct. Upon consideration of the record, we conclude that its contents are adequate for this court's de novo consideration of respondent's professional misconduct.

III.

FACTS ADMITTED BY STIPULATION

¶ 8 The parties have tendered their stipulations by which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands admitted. It serves as an evidentiary substitute that dispenses with the need for proof of facts that are conceded by the parties' agreement. Stipulations are subject to the approval of the court in which they are entered.18 Respondent's fact stipulations (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties' tendered stipulations.

A.

Count I

¶ 9 The charges against respondent arise from a client complaint that respondent made suggestive comments to and engaged in inappropriate touching of her of a sexual nature. Shortly after her divorce in February, 2000 Mrs. C. hired Groshon to represent her in an emergency hearing for child custody brought by her former husband.19 Recognizing that she did not have the funds to pay him at that time for his legal services, respondent agreed to allow her to make payments whenever she was able to do so.20 Respondent did not bill her for this service, nor did Mrs. C. make any effort to pay.

¶ 10 Over the next few months Mrs. C. continued to call respondent concerning other matters relating to the child custody issue, including harassment and nonpayment of alimony by her former husband, possible modification of the divorce decree and repeated threats by the ex-husband of taking custody of the minor child. During one of these conversations respondent asked Mrs. C. if she would like to go out or meet him for drinks. She refused. Respondent stipulated that he was not aware of nor did he ever advise her of the possible conflict of interest which might arise should she have accepted this invitation.21 Respondent further admits that he made to his client various inappropriate and unprofessional comments of a sexual nature.22 Mrs. C. indicates that because she was uncomfortable with the situation at this time she contacted other lawyers but found that none was willing to allow her the same fee arrangement as did respondent.

B.

Count II

¶ 11 In September of 2000 Mrs. C. contacted Groshon and indicated that her former husband had filed a motion to modify the divorce decree, asking for full custody of the parties' minor child, and that he be released from the duties of support alimony. Respondent informed Mrs. C. that she needed to make an appointment with his partner to sign a fee agreement with the firm. She complied with this request. On 18 April 2001 Mrs. C. met with respondent in his office to prepare for trial. She became emotional and began to cry.23 Respondent came around his desk where Mrs. C. was sitting and embraced her. Respondent stipulates that he recalled the details of that meeting differently from Mrs. C.'s recollection but admits making improper sexual remarks to his client and touching Mrs. C. on both her breast and thigh. Although he agrees it does not excuse his behavior, he states that he believes his advances were welcomed by Mrs. C. as a consenting adult.

C.

Count III

¶ 12 The next day Mrs. C telephoned respondent's secretary to advise the office that she would be coming in to obtain a document she had left on respondent's desk, and an appointment was made for her with Groshon for the next day.24 As a precaution she carried a recorder in her purse and subsequently taped the conversation between respondent and herself.25 The tape reveals that respondent first made several remarks to Mrs. C. of a flirtatious and sexual nature when he passed by her in the reception area.26 These comments, as well as conduct of a sexual nature, continued after Mrs. C. entered respondent's private office and attempted to discuss her legal situation with him.27 Respondent accompanied Mrs. C. to the office elevator which they both entered. The suggestive remarks and conduct continued until the parties exited the elevator.28 Although respondent's description of the events differ in several aspects from those of Mrs. C., he agrees that he acted in an unprofessional manner by flirting with, hugging, and attempting to kiss and touch his client in a sexual manner. He maintains that he believed his advances were, at all times, invited and welcomed by Mrs. C.

¶ 13 A few days later Mrs. C. contacted Groshon's office requesting an itemized bill for the legal services provided. Mrs. C. obtained a new attorney and, on 22 May 2001, filed this grievance against respondent with the OBA.

¶ 14 Groshon is charged with (1) failure to provide competent representation to a client, ORPC Rule 1.1, (2) failure to inform a client and obtain consent where representation of that client may be limited by the lawyer's own interests, ORPC Rule 1.7(b)(2), (3) use of information relating to representation of a client to the disadvantage of the client without the client's consent, ORPC Rule 1.8(b), (4) failure to exercise independent professional judgment and render candid advice, ORPC Rule 2.1, (5) violating the Rules of Professional Conduct, ORPC Rule 8.4(a), (6) engaging in conduct that is prejudicial to the administration of justice, ORPC 8.4(d), and (7) the commission of an act which would reasonably be found to bring discredit upon the legal profession, whether or not the act is a felony, misdemeanor or a crime at all, RGDP Rule 1.3. Groshon stipulates that his actions violated these provisions. We accept respondent's stipulations—and find by clear and convincing evidence—that his admitted conduct offends each rule with whose violation he stands charged.

IV.

MITIGATING FACTORS

¶ 15 Mitigating circumstances may be considered in arriving at the assessment of the appropriate measure of discipline.29 The PRT report contains numerous factors to be considered for purposes of mitigation. It states respondent: (1) was admitted to the practice of law in 1993 and has never been disciplined for professional misconduct, (2) has acknowledged and accepted responsibility for his professional misconduct, (3) has expressed sincere remorse for the harm his actions have caused to Ms. C. and to the reputation of the legal profession, and (4) has been fully cooperative in the investigation of this matter. In addition respondent's conduct appears to be an isolated incident rather than an ongoing pattern of acquittal towards female clients. We take these into account in determining the discipline to be imposed on the respondent.

V.

RESPONDENT'S MISCONDUCT WARRANTS A PUBLIC REPRIMAND

¶ 16 A license to practice law is not conferred for the benefit of the licensee, but for that of the public.30 The disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, the judiciary, and of the legal profession.31 Disciplinary sanctions serve not only to deter the offending lawyer from committing similar acts in the future, but also operate to put others on notice that departures from ethical norms will not be tolerated. The disciplinary measure to be imposed upon the offending lawyer should be consistent with the quantum of discipline visited upon other practitioners for similar acts of professional misconduct.32

¶ 17 Extant jurisprudence teaches that a lawyer's sexual advances toward a client take advantage of the attorney-client relationship and constitute professional misconduct that will result in disciplinary action against the attorney when the matter is brought to the attention of the Bar.33 Respondent should not have taken advantage of the professional relationship to approach Mrs. C. in a sexual manner. Because of the status of the attorney-client relationship, whether a lawyer believes an overture of a sexual nature is welcomed—or even encouraged—by a client in no way excuses the attorney's engaging in unprofessional conduct.34

¶ 18 The parties are in agreement concerning discipline and submit that a public censure is warranted for respondent's misconduct. The parties cite to State ex rel. Bar Ass'n v. Sopher35 and State ex rel. Oklahoma Bar Ass'n v. Copeland36 as precedent for their disciplinary recommendation.37 Sopher and Copeland establish public censure as the proper disciplinary norm for unprofessional behavior that serves an attorney's personal interest in sexual gratification. We agree with the parties' recommendation. The Bar has a vital responsibility to effect the efficacious transition from what once, regrettably, may have been tolerated, if not indeed accepted, behavior to new standards of professional etiquette.38 A public reprimand serves here the Bar's goal of giving unmistakable notice of its commitment to the enforcement of new standards.

VI.

SUMMARY

¶ 19 In sum, the record bears clear and convincing proof that respondent's participation in unprofessional conduct violates the rules that govern professional responsibility. After a thorough review of the record and due recognition of the factors tendered in mitigation,

¶ 20 RESPONDENT IS ORDERED DISCIPLINED BY PUBLIC CENSURE AND DIRECTED TO PAY THE COSTS OF THIS PROCEEDING, WHICH SHALL BE DUE NOT LATER THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.

¶ 21 HODGES, LAVENDER, HARGRAVE, SUMMERS, AND WINCHESTER, JJ., CONCUR.

¶ 22 WATT, C.J., KAUGER AND BOUDREAU, JJ., CONCUR IN PART AND DISSENT IN PART.

¶ 23 BOUDREAU, J., with whom WATT, C.J., and KAUGER, J., join, concurring in part and dissenting in part.

I would impose a thirty-day suspension from the practice of law.