¶ 1 Complainant commenced this proceeding pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (hereinafter
FACTS AND PROCEDURAL HISTORY
¶ 2 Respondent was admitted to the bar on April 17, 1992. At the time of the hearing before the Professional Responsibility Tribunal, Respondent was 44-years-old. The critical facts in this matter relate to Respondent's criminal history, which, in summary consists of two felony convictions and at least three misdemeanor convictions
¶ 3 Upon Respondent's arrest in connection with the November, 2003 incident, a motion to accelerate deferred judgment and sentence was filed in the Tulsa County District Court and the Respondent's sentences in the two felony matters were accelerated, resulting in Respondent's incarceration with the Oklahoma Department of Corrections from April 4, 2004 until his release from prison on March 2, 2005. The record reflects Respondent is on probation currently and will remain on probation until March 1, 2008. The conditions of Respondent's probation are substance abuse evaluation and the installation of an ignition interlock device on any vehicle Respondent will drive. Additionally Respondent is required to successfully complete an outpatient substance abuse counseling program as well as attend anger management and "criminal sentiments" groups.
¶ 4 The evidence reflects that at the time of the hearing before the Professional Responsibility Tribunal, Respondent was in good standing with his probation and parole officer. In the event Respondent violates the conditions of his probation, a violation report will be submitted to the district court and to the district attorney's office with recommendations ranging from no sanctions to incarceration up to the remainder of his original five-year sentence.
¶ 5 Respondent has admitted he has a substance abuse problem.
¶ 6 Complainant initiated its investigation in the instant matter upon its receipt of a letter from Respondent explaining the reasons for Respondent's failure to comply with his 2003 mandatory continuing legal education (hereinafter "MCLE") requirements due to his in-patient substance abuse treatment and incarceration.
¶ 7 Complainant lists in its Amended Complaint two items for Enhancement of Discipline as follows:
¶ 8 The Joint Stipulations of Fact document (listed as Complainant's Exhibit No. 5 to Complainant's Trial Exhibits), which was signed by the parties, contains Respondent's "graduation from Narconon Arrowhead in Canadian, OK" as an item of mitigation in this matter.
¶ 9 As a starting point, we note the standard of review applicable in this proceeding is de novo, which involves a full exploration of all relevant facts and requires a complete record made before the trial panel. State ex. rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, 991 P.2d 1015. The record presented here is adequate for de novo review. While we examine the findings and recommendations of the Professional Responsibility Tribunal as advisory, the ultimate responsibility for determination of whether misconduct has occurred and what discipline is warranted rests with this Court in the exercise of exclusive original jurisdiction in bar disciplinary matters. State ex rel. Oklahoma Bar Ass'n v. Todd, 1992 OK 81, 833 P.2d 260, 262. Finally, "[t]o warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence." Rule 6.12(c) of the RGDP; State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1991 OK 88, 824 P.2d 1090, 1093. Clear and convincing evidence is "that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." State ex rel. Oklahoma Bar Ass'n v. Green, 1997 OK 39, ¶ 5, 936 P.2d 947, 949.
¶ 10 Complainant's Amended Complaint lists one count for which Respondent is charged with violating Rules 8.4(b) and 8.4(c) of the ORPC and Rule 1.3 of the RGDP for his alcohol-related criminal convictions.
Rule 1.3 of the RGDP provides as follows:
¶ 11 At the hearing before the PRT, Respondent presented only his own testimony as evidence in defense of the Complainant's charges. Respondent testified that his driving record "speaks for itself" as to his "persistent pattern of DUI arrests, finally leading to my conviction." (Tr. at 12). While Rule 8.4(b) provides it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on that person's fitness as a lawyer, "[w]e have said `fitness to practice law' encompasses more than an absence of detriment to specific clients." State ex rel. Oklahoma Bar Ass'n v. Aston, 2003 OK 101, ¶ 11, 81 P.3d 676, 678. Additionally, our cases clearly demonstrate our view that substance abuse is incompatible with the practice of law. Id. at ¶ 12, 81 P.3d at 679; In re Pierce, 1996 OK 65, 919 P.2d 422, 426 (denial of reinstatement upon a lawyer's failure to produce evidence demonstrating rehabilitation). We emphasize the following pronouncement, which is particularly applicable here:
State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, n. 17, 991 P.2d 1015, 1026 (quoting Rule 8.4, Comment ORPC).
¶ 12 Respondent's criminal record indeed speaks for itself in terms of the pattern of repeated alcohol-related offenses over a decade and demonstrates clear and convincing evidence of Respondent's indifference to legal obligation as well as acts that bring discredit upon the legal profession. Respondent's convictions for driving under revocation of driver's license at the time of at least two of the DUI arrests is further indicia of Respondent's indifference to legal obligation.
¶ 13 Respondent's conduct and/or comments made in connection with the criminal arrests as well as comments made during his testimony before the PRT
¶ 14 Respondent's conduct in leaving the scene of the November, 2003 motor vehicle accident with property damage (for which he was convicted of a misdemeanor pursuant to 47 O.S.2001, § 10-103
¶ 15 Respondent's prior discipline for professional misconduct may be considered for enhancement of discipline. See State ex rel. Oklahoma Bar Ass'n v. Aston, 2003 OK 101, ¶ 13, 81 P.3d 676, 679. Respondent received a private reprimand by the Professional Responsibility Commission in August, 1997 for his neglect in representation of Mary Baugh in a divorce case and failure to respond to the Oklahoma Bar Association. Respondent's deposition was taken in connection with that proceeding in May, 1997, wherein Respondent testified to his difficulties with drinking in the past.
¶ 16 Respondent argues no discipline is warranted here and that our imposition of any discipline would be tantamount to disciplining Respondent for his addiction to alcohol alone. Respondent relies primarily upon State ex rel. Oklahoma Bar Ass'n v. Armstrong, 1990 OK 9, 791 P.2d 815 (and the related Armstrong case at 1992 OK 79, 848 P.2d 538), in support of his position. We reject Respondent's argument on the basis that Armstrong, a Rule 7 summary proceeding, is distinguishable from the instant case.
¶ 17 The pertinent facts of Armstrong are as follows: Armstrong had one felony conviction and two prior misdemeanor DUI convictions for arrests spanning a period of three years, Armstrong demonstrated evidence of being sober and a "model of rehabilitation" for over six years, and there were no complaints or allegations of professional misconduct against Armstrong. Armstrong, 848 P.2d at 539. Additionally, the Trial Panel's findings of fact in Armstrong included the following findings: Armstrong's "reputation in the community had been rehabilitated by his demonstrated commitment to conquering his alcoholism; his reputation as an attorney is one of integrity and professionalism." Id.
¶ 18 Here, Respondent's criminal history is more extensive and spans over a much longer period of time. One critical factual distinction is that unlike Respondent in this case, none of Armstrong's DUI convictions arose from a motor vehicle accident, nor did Armstrong leave the scene of any accident. Respondent's long term pattern of criminal misconduct in this case clearly gives rise to professional discipline.
¶ 20 We are charged with the responsibility to safeguard public interest and to protect the judicial system. State ex rel. Oklahoma Bar Ass'n v. Adams, 1995 OK 17, ¶ 18, 895 P.2d 701, 706. It is clear that Respondent's conduct leading to his felony and misdemeanor convictions have brought the bench and bar into disrepute. Additionally, the facts of this case particularly press us to fulfill our primary obligation to protect the public, as the record contains evidence that based upon his criminal history, Respondent is considered a threat to the community.
¶ 21 Finally, we note that Respondent's sobriety is the key to his rehabilitation. If Respondent chooses to seek reinstatement, "[a]ny application for reinstatement filed by Respondent will be conditioned upon his continued sobriety." State ex rel. Oklahoma Bar Ass'n v. Briery, 1996 OK 45, 914 P.2d 1046, 1050. Therefore, we refrain from ordering Respondent's participation in Alcoholics Anonymous or Lawyers Helping Lawyers programs. It is Respondent's responsibility to participate in these programs if he desires to regain membership in the Oklahoma Bar Association. See id.
¶ 22 In sum, we have reviewed the record before us and accepting the stipulated facts entered into between the parties and accepted by the Professional Responsibility Tribunal, we find that the charges against Respondent have been established by clear and convincing evidence. We adopt the recommendation of the Oklahoma Bar Association and the Professional Responsibility Tribunal that Respondent be suspended from practice of law for a period of two years and one day from the date this opinion becomes final. Respondent is further ordered to pay the costs of this proceeding in the amount of
¶ 24 WATT, C.J., WINCHESTER, V.C.J., HARGRAVE, OPALA, EDMONDSON, TAYLOR and COLBERT, JJ., concur.
¶ 25 KAUGER, J., concurring in result.
Although I agree with the discipline imposed, this proceeding should have been brought under Rule 10.
(Complainant's Exhibit # 10, Letter of August 5, 2004).
A. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his correct name, address and registration number of the vehicle he is driving, and shall upon request exhibit his driver license and his security verification form ... to the person struck or the driver or occupant of or person attending any vehicle collided with, and shall render to any person injured in such accident reasonable assistance.... Id. (emphasis added).