¶ 1 The Oklahoma Bar Association (Bar) filed a complaint against the Respondent, Michael David McBride, on March 5, 2007 in which they alleged that the Respondent is subject to discipline under Rule 6, Rule 7 and Rule 10 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App.1-A, for various alcohol-related offenses.
¶ 2 The parties have stipulated to the following:
¶ 3 The Bar alleges that these actions for which the Respondent has been criminally charged constitute professional misconduct and demonstrate his unfitness to practice law. The Rule 6, Rule 7 and Rule 10 allegations are related and were combined in the complaint.
¶ 5 The hearing before the Trial Panel of the Professional Responsibility Tribunal was held on May 15, 2007 and June 1, 2007. The Respondent testified, and was extensively questioned by the members of the Trial Panel. His psychologist, Dr. Wenona Barnes, who is a certified alcohol treatment counselor, testified also. Respondent's sponsors from Lawyers Helping Lawyers and Alcoholics Anonymous testified and testimony was taken from three judges before whom the Respondent practices, and from several lawyers who know the Respondent professionally and often see him at the courthouse.
¶ 6 The Respondent admits that he is an alcoholic. He sought treatment from Dr. Wenona Barnes after his January 9, 2007 arrest for DUI and first met with her on January 24, 2007. Dr. Barnes works with the Lawyers Helping Lawyers program and a lawyer may attend three sessions for free. The Respondent continued to see Dr. Barnes on a professional basis and he is still her client. At the time of the hearing, the Respondent had completed fourteen personal sessions with Dr. Barnes, as well as six hours of drug education at her office. She conducted tests and determined that the Respondent did not require in-patient treatment. Dr. Barnes recommended that Mr. McBride participate in an intensive out-patient program at St. Anthony's Hospital. Respondent began attending AA meetings and became active in the 12-Step Program. Respondent signed a two-year contract with Lawyers' Helping Lawyers. Respondent successfully completed the extensive out-patient treatment at St. Anthony's Hospital at the end of June, 2007.
¶ 7 Respondent's sobriety date is March 6, 2007. At the time of the hearing before the Trial Panel, the Respondent had been sober for 85 days. At the time of filing briefs in this Court, the Respondent has been sober for six (6) months. The Respondent waived his confidentiality with respect to his psychologist, Alcoholics Anonymous and Lawyers' Helping Lawyers, and directed anyone with reason to believe that he is drinking to immediately contact the General Counsel's office. Furthermore, the Respondent voluntarily contracted with Dr. Barnes that if he should start drinking again, he would immediately undergo inpatient treatment.
¶ 8 After completion of the hearing, the Trial Panel found no basis for suspension under Rule 10 or Rule 7, R.G.D.P.
¶ 9 In its briefs to this Court, the Bar argues that Respondent should be immediately suspended from the practice of Law under Rule 10 R.G.D.P. Rule 10 governs suspension for personal incapacity to practice law. The objective of Rule 10 is to minimize
¶ 10 We have reviewed the matter and find that there is no evidence that the Respondent is personally incapable of practicing law at this time. The Bar offered no testimony from any client, lawyer, judge or other person that the Respondent is incapable of practicing law. The Rule 10 allegations are not supported by the evidence and are therefore dismissed.
¶ 11 Rule 7, prior to amendment 2007 OK 1, provided for summary disciplinary proceedings and immediate suspension of a lawyer who had been convicted of a crime that demonstrated the lawyer's unfitness to practice law.
¶ 12 In Armstrong, supra, w remanded the Rule 7 allegations to the Trial Panel to take evidence as to whether the circumstances surrounding Armstrong's conviction for DUI, second offense, and previous misdemeanor DUI convictions demonstrated his unfitness to practice law. After the Trial Panel in Armstrong heard evidence on the Rule 7 allegations, they recommended to this Court that the Rule 7 allegations be dismissed. We agreed and declined to discipline Armstrong under Rule 7 because there was no evidence that his crime adversely affected his fitness to practice law. State ex rel. Okla. Bar Ass'n v. Armstrong, 848 P.2d 538 (Okla.1992).
¶ 13 We have reviewed the present matter and agree with the finding of the Trial Panel. There was no evidence that Respondent's misdemeanor DUI convictions adversely affect his fitness to practice law. Accordingly, the Rule 7 allegations are dismissed.
¶ 14 The Bar alleges that Respondent's repeated violations of Oklahoma's legal standards prohibiting driving a motor vehicle while intoxicated on alcohol, and other vehicle and alcohol-related violations, demonstrate a wilful disregard for the law and an indifference to legal obligations. They allege that Respondent's conduct thereby violates the mandatory provisions of Rules 8.4(b) and 8.4(d) of the Oklahoma Rules of Professional Conduct, and Rule 1.3 of the Rules Governing Disciplinary proceedings and constitutes grounds for professional discipline. The Bar
¶ 15 The Respondent has stipulated to the alcohol-related offenses listed above, covering a time period of more than ten years. The Respondent does not argue that he has not violated Rule 6 as alleged and his brief is directed only toward the proper degree of discipline to be imposed. The stipulated offenses alone provide clear and convincing evidence of Respondent's indifference to legal obligations and engaging in conduct that reflects adversely on the legal profession. The stipulated conduct serves as a basis for the imposition of discipline. It only remains for us to determine the degree of discipline to be imposed.
¶ 16 The Trial Panel of the Professional Responsibility Tribunal recommends discipline of public censure coupled with a deferred suspension of two years and one day. The deferred suspension is subject to a list of probationary terms.
¶ 17 The Trial Panel based its recommendation on the fact that Respondent's problems stemmed from his abuse of alcohol and that if he continues to abstain from the use thereof, he will not pose a threat to the public. They observed that the Respondent holds the key to his professional future and the discipline recommended. If he adheres to the rules of probation and deferred suspension his only discipline will be public censure; if not, he will be suspended for two years and one day.
¶ 18 The Bar urges that disbarment is the appropriate discipline for repeated alcohol-related misconduct, citing State ex rel. Oklahoma Bar Ass'n v. Wyatt, 2001 OK 70, 32 P.3d 858 and State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, 991 P.2d 1015. The Bar also points to State ex rel Oklahoma Bar Ass'n v. Rogers, 2006 OK 54, 142 P.3d 428 and State ex rel. Oklahoma Bar Ass'n v. Beasley, 2006 OK 49, 142 P.3d 410, wherein the Court imposed a suspension from the practice of law for two years and one day.
¶ 19 The Respondent requests that the Court, in determining appropriate discipline under Rule 6, take into account both the inappropriateness of his past actions while also recognizing his efforts to change his life and succeed in recovery. Because there was no evidence of client neglect, and because the purpose of discipline is not to punish the attorney, Respondent suggests that discipline of a private reprimand and a six-month deferred suspension with conditions is appropriate. Respondent fully joins in the recommendation of the Trial Panel in the terms of the deferred suspension; that he must continue in private counseling with Dr. Barnes until such time as she releases him from treatment; that he must continue to regularly attend AA meetings and maintain frequent contact with his AA sponsor; that he must comply with all terms and provision of the two-year contract that he has signed with Lawyers Helping Lawyers; and that he has completed the out-patient treatment program at St. Anthony's Hospital recommended by the Trial Panel. Further, he waives any right of confidentiality with Dr. Barnes, his AA sponsor and his Lawyers Helping Lawyers
¶ 20 The Respondent argues that the cases relied on by the Bar where severe discipline was imposed are not applicable to the facts of this case. Respondent suggests that the more appropriate precedent for consideration are the decisions in State ex rel. Oklahoma Bar Ass'n v. Garrett, 2005 OK 91, 127 P.3d 600, State ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, 848 P.2d 543 and State ex rel. Oklahoma Bar Ass'n v. Burns, 2006 OK 75, 145 P.3d 1088. The Respondent further argues that the recent case of State ex rel. Oklahoma Bar Ass'n v. Albert, 2007 OK 31, 163 P.3d 527 teaches that discipline of less than six months is appropriate if there has been no client neglect.
¶ 21 The Respondent has admitted that he is an alcoholic and he has stipulated to his past transgressions. He has sought help, though only after the bar complaint was filed. He has received good reports on his treatment and his participation in AA and counseling. He urges anyone to turn him in if he starts to drink again, and he has agreed to obtain inpatient treatment if that happens. Mr. McBride has expressed his remorse and his shame for his behavior. Mr. McBride was very candid with the tribunal. Against the advice of his attorneys, he refused to take the Fifth Amendment with regard to the testimony surrounding the DUI pending in Cleveland County, Oklahoma. The Respondent testified fully and freely about that arrest and the Trial Panel watched an hour-long highway patrol video of the Respondent's arrest, which did not show the Respondent in a good light. The Respondent stipulated that the highway patrol trooper's testimony, as well as the testimony of the off-duty police officer who called it in, would be as reflected in their reports and in the video.
¶ 22 Mr. McBride was scheduled to represent two clients in court the day after his arrest and he arranged from jail for another lawyer to represent them. The trial panel felt that this showed that clients were affected by Respondent's alcohol-related crimes. We feel, however, that it is also to Respondent's credit that he arranged for his clients to be represented when he was unable to be there. It is to the Respondent's credit that he has wholeheartedly embraced sobriety and has done everything required of him and more in order to maintain sobriety.
¶ 23 Discipline imposed in cases involving alcohol-related crimes has ranged from the severe, when coupled with harm to clients,
¶ 24 Attorney discipline cases must be decided on a case-by-case basis due to the different circumstances of each case. State ex rel. Oklahoma Bar Ass'n v. Rozin, 1991 OK 132 ¶ 10, 824 P.2d 1127, 1130. While discipline should be administered fairly and evenhandedly, the terms will vary since each situation must be decided case by case, each involving different offenses and different mitigating circumstances. State ex rel. Okla. Bar Ass'n v. Burns, 2006 OK 75 ¶ 26, 145 P.3d 1088, 1094. Because of these differences, the range of discipline imposed in alcohol-related disciplinary matters is quite wide. Id. We look to cases having similar circumstances as a guideline.
¶ 25 In State ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, 848 P.2d 543, 548 we said that lawyer misconduct falls within
¶ 26 Discipline of suspension for six months and a two-year probationary period with conditions was imposed in State ex rel. Oklahoma Bar Ass'n v. Burns, 2006 OK 75, 145 P.3d 1088. In Burns, the crimes also occurred as a result of the attorney's abuse of alcohol and while under the influence of alcohol and no client-related misconduct was involved. Burns was convicted of two (2) felony DUIs and sentenced to a term of three (3) years in the Department of Corrections, all suspended, to run concurrently with the sentence in the second case, and ordered to pay a fine. In the second case he received a five-year deferred sentence to run concurrently with the other case and was fined $1,000.00. Burns also stipulated to previous alcohol related offenses in 1997, 1999, 2001 and 2002. The Court held that Burns' multiple violations of criminal laws prohibiting operation of a motor vehicle while under influence of intoxicating liquor violated the rules charged and we followed the recommendation of the Trial Panel in suspending Burns for six months and imposing two years of conditioned probation.
¶ 27 The case at bar is similar to State ex rel. Oklahoma Bar Ass'n v. Garrett, 2005 OK 91, 127 P.3d 600, where no client-related misconduct was involved and the crimes for which the attorney was charged occurred as a result of his abuse of alcohol and while he was under the influence of alcohol.
¶ 28 Under the evidence presented, we found that Garrett had finally taken steps to take responsibility for his prior behavior and demonstrated that he intends to work to maintain his sobriety through his involvement with Lawyers Helping Lawyers and AA, which represented a departure from his previous behavior when he did not take responsibility for his actions. Garrett had, at the time of his hearing, abstained from alcohol for almost two years. Testimony by Garrett's Lawyers Helping Lawyers contact was similar to testimony on Respondent's
¶ 29 We find the Garrett case instructive in determining appropriate discipline in this matter. Both matters involve the imposition of discipline for actions outside the attorney-client relationship and the overwhelming evidence indicates that the attorneys problems stemmed from the abuse of alcohol. In the case at bar, Mr. McBride's alcohol-related offenses are the misconduct with which he is charged. In a Rule 6 proceeding, we focus on the lawyer's questionable past conduct in order to safeguard the public interest and protect the judicial system. State ex rel. Okla. Bar Ass'n v. Donnelly, 848 P.2d 543, 547. That focus also is designed to deter the Respondent from further offending behavior and other members of the bar from like derelictions. Id. As in Garrett, there is no evidence that the McBride's alcoholism impaired his ability to conduct his clients' affairs in his law practice, and there is clear and convincing evidence that the attorney's actions after his arrest showed a commitment to becoming sober and maintaining his sobriety through AA and Lawyers Helping Lawyers and private counseling.
¶ 30 In Garrett, we said that imposing the stipulated conditions for a one-year probationary period was appropriate for encouraging a permanent change of lifestyle and it constituted a worthy objective to allow the attorney to maintain his sobriety and his rehabilitation, while also continuing his practice of law. We believe that the same considerations apply in the case at bar. Compliance with the conditions of probation will prove the depth of the Respondent's commitment to abstaining from alcohol and his sincerity in establishing a new lifestyle.
¶ 31 Aside from Burns, supra, which involved two felony DUI convictions as well as numerous other alcohol-related offenses, the alcohol-impaired cases where a period of suspension was imposed involved misconduct in the representation of clients. Having determined that the present matter is most similar to Garrett, we accept the Trial Panel's recommendation of discipline of public censure and a deferred suspension period of two years and one day. In Garrett, the attorney had been sober for approximately two years at the time discipline was being imposed. In the instant case, the attorney will have been sober for a period of approximately eight months by the time discipline is imposed. By imposing a two year and one day probationary period, the Respondent will have been sober for almost three years at the time the probation period is successfully completed. This long period of sobriety will have set the Respondent firmly on the road to recovery.
¶ 32 Rule 10 proceedings are confidential until this Court orders otherwise and a separate, non-public docket is maintained for that purpose under the supervision of the Chief Justice.
¶ 34 At the end of the two years and one day probationary period, if the Respondent has not violated the terms of the probation, the suspension will be dismissed. If the General Counsel receives information that the Respondent has violated the terms and conditions of his probation, then the General Counsel shall immediately notify the Court and the suspension of two years and one day will be imposed, to commence on the date of violation.
¶ 35 The Complainant has filed an application to assess the costs of the proceeding, in the amount of $2,483.19. The Respondent is ordered to pay costs in the amount of $2,483.19 within ninety (90) days of the date this opinion becomes final.
¶ 36 CONCUR: WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, REIF, JJ.
¶ 37 DISSENT: TAYLOR (THE SUSPENSION SHOULD NOT BE DEFERRED.), J.
Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A, provides:
Rule 10.1 defines personally incapable of practicing law as:
In re: AMENDMENT TO THE RULES GOVERNING DISCIPLINARY PROCEEDINGS Rule 7, 5 O.S.2001, Ch. 1, App.-1.
Rule 7.1 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, currently provides in pertinent part:
To correct an oversight in the disciplinary system, Rule 7.1 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, is hereby amended to provide in pertinent part:
Rule 7.2, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A currently provides:
Rule 7.2, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A is hereby amended to provide:
Rule 7.3 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, currently provides in pertinent part:
Rule 7.3, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A is hereby amended to provide:
DONE BY ORDER OF THE SUPREME COURT THE 8th DAY OF JANUARY, 2007.