WATT, Chief Justice.
¶ 1 The Complainant, Oklahoma Bar Association (the Bar), filed a complaint against Garrett, Respondent, a licensed attorney in Oklahoma, pursuant to Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A. The Bar alleged the sexual assault of two women (Counts I and II); his arrest for two counts of felonious sexual battery and later conviction of two counts of misdemeanor battery (Count III); and his alcohol abuse and addiction (Count IV).
CASE OF FIRST IMPRESSION
¶ 2 This Court has previously considered appropriate discipline for attorneys' sexual misconduct with their clients. See State ex rel. Oklahoma Bar Association v. Anderson, 2005 OK 9, 109 P.3d 326; State ex rel. Oklahoma Bar Association v. Sopher, 1993 OK 55, 852 P.2d 707. We have also disciplined attorneys whose addiction to alcohol or drugs has caused serious problems in the attorney-client relationship. See State ex rel. Oklahoma Bar Association v. Donnelly; 1992 OK 164, 848 P.2d 543; State ex rel Oklahoma Bar Association v. Arnett, 1991 OK 44, 815 P.2d 170. Today, for the first time, this Court considers appropriate discipline for an attorney whose alcohol addiction led to his arrest for felonious sexual battery and his convictions for misdemeanor battery of two women outside the attorney-client relationship.
JURISDICTION AND STANDARD OF REVIEW
¶ 3 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction. Anderson, 2005 OK 9, 109 P.3d 326; State ex rel. Oklahoma Bar Association v. Taylor, 2003 OK 56, 71 P.3d 18. We have a constitutional, nondelegable responsibility to decide whether misconduct has occurred and what discipline is appropriate. Anderson, 2005 OK 9, ¶ 15, 109 P.3d 326, 330. We exercise this responsibility, not for the purpose of punishing an attorney, but to assess his or her continued fitness to practice law, Taylor, 2003 OK 56, ¶ 22, 71 P.3d 18, 29; and to safeguard the interests of the public, the courts and the legal profession. Id.; State of Oklahoma, ex rel. Oklahoma Bar Association v. Wagener, 2005 OK 3, 107 P.3d 567; State ex rel. Oklahoma Bar Association v. Southern, 2000 OK 88, 15 P.3d 1.
¶ 4 We have a responsibility to ensure the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline. State of Oklahoma ex rel. Oklahoma Bar Association v. Adams, 1995 OK 17, 895 P.2d 701. We find the
¶ 5 The first two counts of the Bar's complaint describe the accusations of sexual assault against Garrett by two women, J.L. and T.C.,
¶ 6 Garrett's two felony sexual battery charges were reduced to misdemeanor battery charges, to which Garrett pled guilty. He received one-year suspended sentences on each count to run concurrently, in addition to terms requiring Garrett to pay costs and to continue alcohol treatment while on probation. The jury trials were set for June 8, 2004.
¶ 7 Count IV addresses Garrett's chronic alcoholism from which he had been suffering for a considerable period of time before these incidents arose. Garrett's written response to the complaint is quoted. It indicates he remembers drinking heavily on both occasions, but he did not remember the incidents with the two women which are the basis of the complaint. Count IV also recites that following his arrest, Garrett realized alcohol was a problem in his life. He contacted the Bar's Lawyers Helping Lawyers (LHL) program. On June 10, 2003, Garrett entered an inpatient treatment facility where he remained for 72 days until his discharge on August 20, 2003.
¶ 8 In its report, the Trial Panel made Findings of Fact which it concluded were established by clear and convincing evidence.
GARRETT'S PREVIOUS CONDUCT; VIOLATIONS OF RULE 8.4, ORPC, AND RULE 1.3, RGDP
¶ 9 Incidents of prior misconduct have been considered for determining appropriate discipline and whether a lawyer's conviction and underlying conduct reflect adversely on his ability to practice law. See Arnett, 815 P.2d at 171. "A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation." See Comment to Rule 8.4, ORPC, 5 O.S.2001, Ch. 1, App. 3-A.
¶ 10 Allegations by three other women of previous incidents of sexual misconduct are noted in the Bar's complaint. These incidents are alleged to have occurred between 1994 and 2003 but never became the subject of criminal charges or of Bar disciplinary proceedings. Moreover, we underscore that the discipline imposed in this proceeding does not include these prior instances.
¶ 11 In addition to allegations of prior sexual batteries, Garrett admitted he had been charged with previous alcohol-related traffic
¶ 12 Garrett testified he reached "bottom," as it is referred to in AA, and realized when criminal charges were filed that alcohol controlled his life. He testified he does not know why the prior incidents were not enough to persuade him to make changes in his life. Although he stated he did not previously think he was an alcoholic, he now admits he is powerless against alcohol. He testified he appreciates the two women who brought the charges against him because it gave him a chance "to live a new life." We must decide whether his arrests and convictions involving J.L. and T.C. are merely part of an ongoing pattern showing an "indifference to legal obligation," or whether his recent efforts to maintain sobriety show a sincere desire to take responsibility for his alcoholism, causing this pattern to cease.
¶ 13 Under the evidence presented, we find Garrett has finally taken steps to take responsibility for his prior behavior and intends to work to maintain his sobriety through his involvement with LHL and AA. This represents a departure from his previous behavior. We agree with the Bar's contention that Garrett's disregard for the persons of J.L. and T.C., his criminal conduct and criminal convictions are clear and convincing violations of ORPC Rule 8.4(a) and (b). These actions, in addition to Garrett's abuse of alcohol, also violated RGDP Rule 1.3, by the discredit he has brought upon the legal profession. In addition to protecting the public, we must impose discipline which will instill the public's confidence in the Bar and the legal profession in Oklahoma.
¶ 14 Garrett testified his sobriety began on June 7, 2003, one day after his arrest. On that day, he contacted attorney Glenn Mirando, the Director of LHL. In addition, he contacted the BFC to seek admission for alcohol abuse treatment. He attends four to five AA meetings per week, has a sponsor and is working the "twelve-step program" which involves the acceptance of a higher power for help. He also testified he is committed to remaining sober and to helping other alcoholics. He testified he is under the influence of no drug or alcohol and believes he is competent to practice law. He attends no counseling except AA and LHL. He also receives regular calls from BFC which follows the progress of its former patients for years after treatment. When asked about BFC's recommendation of "weekly psychotherapy
¶ 15 Garrett stated that he did not think he was an alcoholic before the felony charges were filed and that no one in the last twenty years told him he should quit drinking. He took such action at this time after talking with Glenn Mirando and personalizing Mirando's previous comments made to a friend of Garrett's seeking help from LHL. Garrett also testified that a person who is addicted to mind altering substances must realize he is not in control and that the drug is in control. He said in AA it is called a "bottom." The most recent events finally caught his attention. He does not know why the earlier ones did not do so.
¶ 16 He testified he tried to repay his debt to J.L. and T.C. with an apology in court and payment of damages. He is glad they came forward and filed formal complaints. It was significant enough to make him realize what a problem alcohol had become in his life. He feels sorry for them and their families and what they have been through.
¶ 17 Garrett also testified he understands he embarrassed every lawyer in the State. He thinks the events in this case show that when a lawyer commits a crime, the Bar will hold him accountable. He believes the actions taken in his case have been appropriate and reflect well on the Bar because it has publicly shown what happens to lawyers who don't follow the Rules of Professional Responsibility. He said, "I think what I did is bad, but I think what the Bar has done is—is appropriate." He wants to repay his debt to the Bar and will do so by working with other lawyers the way he is working with Glenn Mirando and LHL. He stated his illness was "the lack of love for our fellow man," along with alcohol.
¶ 18 When asked his opinion of the Bar's recommendation for discipline, he testified he is hopeful this Court will follow it. He would like to think he can do a lot of good as a lawyer if allowed to practice. However, he will accept whatever the Court decides to impose upon him. While not trying to minimize his actions, he stated that none of these events involved clients. He also stated these events all involved alcohol from which he had abstained for almost two years at that time. He also noted Mirando would know pretty soon if he started drinking again.
¶ 19 Glenn Mirando testified on Garrett's behalf. Mirando is an attorney in general practice in Tulsa and is the Director of LHL. He also teaches a course at the OU Medical Center in psychiatry and the law. At Tulsa University, he teaches Psychology 101 and human relations. He met him in 2002 when Garrett referred an attorney to LHL. He said Garrett contacted him again in 2003 after his arrest. Mirando thought Garrett needed in-patient detox treatment with medical help for 30 days. He believes Garrett has changed since his treatment at BFC.
¶ 20 Mirando stated Garrett has a contract with LHL. He agrees to attend AA meetings, be randomly tested, have contact with a mentor and work with AA sponsors. Mirando knows Garrett attends AA meetings because he sees him there. He also stated that LHL would probably know within thirty days if someone started drinking again.
¶ 21 Mirando testified Garrett has done everything, and more, that he would want someone in recovery to do. He helps newcomers to LHL and has given financial help to "Twelve & Twelve Recovery Center" in Tulsa, on whose Board Mirando serves. He testified that if Garrett continues doing what he is doing with regard to his alcoholism, he would be fit to practice law. He cannot think of anything that Garrett could have done to address his alcohol problem that he has not done.
¶ 22 Mirando testified Garrett expressed feelings of remorse. He also expressed feelings of embarrassment for his family, the families of the two women who complained against him and all lawyers in the State. He also expressed the guilt and shame of what he did and how it affected the legal community and Muskogee as a whole. He stated that if Garrett continues his program of recovery, he has no concerns or fears about his practicing law.
¶ 23 Mirando spoke about "blackouts" experienced by alcoholics. He was asked the question in connection to Garrett's assertion that he did not remember assaulting either
¶ 24 Mirando testified BFC's recommendation for weekly psychotherapy was a general recommendation, but that it could have been suggested for treatment of lingering issues such as grandiosity, narcissism, self-centeredness and self-serving behavior. Mirando stated that through the recovery process, these issues dissipate. He also testified the AA meetings are similar to group therapy. After one year of sobriety, the chances of long-term sobriety increase greatly, and the chances of staying sober increase as time goes on. Mirando also said the 12-step program and the goals and recovery through AA, with life changes, will prevent any recurrence of criminal or sexual problems. The sexual issues were seen by BFC as related to errors in judgment, the alcoholism and his boundaries being misplaced. He is more balanced since the BFC treatment and has done exceptionally well in AA. He has different priorities now and is getting what he needs through AA and LHL.
¶ 25 The medical evidence from BFC was admitted under seal. We have reviewed the evidence, including the recommendation and report of the medical director at the BFC. Garrett's principal diagnosis was "alcohol dependence." Although the discharge report noted there had been some concern about his sexual compulsivity, it was determined he did not have a "sexual addiction diagnosis." It was recommended that Garrett continue regular and frequent AA meetings, become associated with a sponsor, and continue working the 12-step program. Additionally, it was recommended that Garrett be involved with LHL and attend regular meetings. He was discharged with staff approval.
¶ 26 Also testifying on his behalf was Judge Mike Norman and attorney Mickey Walsh who spoke as to Garrett's good character and his fitness to practice law.
¶ 27 As stated above, the instant case presents a different factual scenario in Oklahoma. The Bar has cited us to State ex rel. Oklahoma Bar Association v. Foster, 2000 OK 4, 995 P.2d 1138,
¶ 28 The overwhelming evidence in this case indicates Garrett's problems stemmed from the abuse of alcohol. While one may argue this case should have been prosecuted as a violation of Rule 10, RGDP, there was no evidence Garrett's alcoholism impaired his ability to conduct his clients' affairs in his law practice. See Donnelly, 1992 OK 164, 848 P.2d 543, 548.
¶ 29 The stipulated conditions, set out at note 5, supra, to be met during a one-year probation are appropriate for encouraging a permanent change of life style for Garrett. His participation in AA and LHL will provide him with invaluable counsel from people with similar experiences. Indeed, the evidence shows he has expressed his remorse for his actions and his desire to live his life differently. He has taken responsibility publicly for his actions by admitting his alcohol addiction, accepting the allegations against him as fact, publicly apologizing and committing himself to in-patient treatment. He has also become involved with AA and the 12-step program, as well as LHL, meeting the terms of his voluntary contract with that program. He stated he intended to repay his debt to the Bar and legal profession by helping other lawyers who need the type of help he has received. He has met the terms of his criminal probation.
¶ 30 The recommendation of a one-year probation, with conditions, constitutes a worthy
WINCHESTER, V.C.J., LAVENDER, KAUGER, EDMONDSON, COLBERT, JJ., concur.
HARGRAVE, J., concurs in part, dissents in part.
OPALA, J., dissents.
TAYLOR, J., dissents.
"I respectfully dissent. It is important to note that the record in this case shows that the felony sexual assault charges filed against Garrett were reduced to misdemeanor battery charges
It is professional misconduct for a lawyer to:
a. The parties stipulate to the allegations in the formal complaint "as fact".
b. Because of his intoxicated state in both assaults, he had no independent recollection of assaulting either victim. However, he does not dispute the truthfulness of their testimony in the preliminary hearing and accepts full responsibility for his actions and misconduct.
c. Garrett has complied with the terms and conditions of his probation in both cases and if successful, was to be released from probation on June 8, 2005.
The first assault occurred on April 23, 2003, at a sports bar in Muskogee, Oklahoma. Garrett motioned to a 21-year old woman, J.L., to come to his table. When she reached his table, he placed his arm around her back, asked her name and indicated he knew the woman'; parents. Count I of the Complaint further provides:
Count II: The [T.C.] Assault
The second assault occurred the evening of May 23, 2003, in Muskogee as T.C. was leaving a restaurant where she worked. She stopped in the foyer to talk on her cell phone. Garrett opened the door to the foyer, walked over to her, pulled her towards him and grabbed her right breast. She pushed him away and went inside the restaurant to advise her employer, the owner of the restaurant, about the incident. The owner asked Garrett to leave. He asked a staff member to call a cab for him because he appeared too drunk to drive. After T.C. left the restaurant, she went to the Muskogee Police Department and reported Garrett had sexually assaulted her.