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

2012 OK 29, 275 P.3d 133, 2012 WL 1090361, 2012 Okla. LEXIS 27

• Court: Supreme Court of Oklahoma
• Decided: April 3, 2012
• Docket: SCBD 5735
• Status: Published

Opinions

GURICH, J.

1 1 On March 16, 2011, the Oklahoma Bar Association ("OBA") filed a complaint against attorney James Albert Conrady ("Conrady") for alleged professional misconduct, as authorized by Rule 6.1 of the Rules Governing Disciplinary Proceedings ("RGDP").¹ After hearing the testimony of witnesses, and being presented with several exhibits, the Professional Responsibility Tribunal ("PRT") concluded that Conrady's actions were a violation of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct ("ORPC").² The PRT also found Conrady had violated RGDP Rule 1.3. The Report of the Trial Panel recommended Conrady be suspended for a period of two years and one day.

Factual and Procedural History

1 2 On January 30, 2009, Conrady returned to Oklahoma following a three-week trip to the Middle East. Conrady was met at the Tulsa airport by his longtime girlfriend, Janice Pierce ("Pierce"), for a return trip to Okmulgee. During the drive home, Pierce informed Conrady she no longer wanted to continue their relationship. Pierce dropped Conrady off at his apartment; however, she refused to discuss the relationship any further. At some point Pierce also advised Conrady that she had begun dating a fellow Sunday school teacher at her church, Steve MceCroskey ("MeCroskey").

T3 Over the next twenty-four hours, Con-rady became increasingly despondent. He began consuming vodka and taking pain medication. Pierce ignored Conrady's repeated efforts to contact her during this period of time. On the evening of February 1, an intoxicated and emotionally charged Con-rady armed himself with a 45 caliber semiautomatic handgun and drove to McCros-key's residence.³ Fortunately, prior to Con-rady's arrival, McCroskey and Pierce had departed to return MeCroskey's six-year-old daughter to her mother in Wilson, Oklahoma. Conrady arrived at the residence and forcibly entered the house, armed with the loaded pistol. After finding no one present, Conra-dy fired rounds throughout the home, including into a bathroom mirror, a television, and other personal items belonging to Pierce's boyfriend.⁴ One of the rounds pierced an interior wall and the projectile was discovered in a bedroom normally occupied by MceCroskey's daughter. Another round penetrated the outside wall of the house and lodged in a neighbor's storm door. After exiting the home, Conrady discharged his firearm multiple times into Pierce and McCroskey's unoccupied vehicles. Conrady left the scene and returned to his home in downtown Okmulgee.

T4 Shortly after the incident, police arrived at Conrady's residence to discuss his involvement in the shooting. Conrady refused to authorize a search of his property; however, officers obtained a search warrant and retrieved the .45 caliber pistol used in the shooting. Conrady was placed under arrest and was subsequently charged by the Okmulgee County District Attorney with six counts in State of Oklahoma v. Conrady, Case No. CF-2009-22. The six criminal charges filed by the district attorney were as follows:

Count 1-Burglary, second degree (21 0.8. 2001 § 1435);

Count 2-Possession of a firearm while in the commission of a felony (21 0.8.Supp. $ 1287);

Count 3-Recekless conduct with a firearm (21 0.S8.2001 § 1289.11);

Count 4-Possession of a firearm under the influence of intoxicants (81 0.9.2001 $ 1289.9);

Count 5-Malicious injury to an automobile (47 0.8.2001 $ 4-104 );

Count 6-Malicious injury to an automobile (47 0.9.2001 $ 4-104 ).

On June 10, 2010, Conrady pled nolo conten-dere to all six counts. He was ordered to return for sentencing on August 18, 2010. After a continuance, the matter was rescheduled for sentencing on October 18, 2010. Conrady withdrew his original plea at the October hearing and pled guilty to the six charges. On December 15, 2010, the trial judge issued an order deferring sentencing on all six counts, with the probationary periods on each to run concurrently over a period of five years. Conrady was also required to pay court costs and restitution to both of his victims.⁵

15 The OBA filed its disciplinary proceeding against Conrady on March 16, 2011.⁶ A hearing before the PRT was held on May 24, 2011. After weighing all of the testimony, exhibits and stipulations, the PRT issued a report determining Conrady's behavior amounted to a violation of ORPC Rule 8.4(b) and RGDP 1.3. The PRT recommended Conrady be suspended for a period of two years and one day.⁷

Standard of Review

16 Review of disciplinary proceedings before the PRT is conducted by this Court using a de novo standard. State of Oklahoma ex rel. Okla. Bar Ass'n v. Cox, 2011 OK 73, ¶ 10, 257 P.3d 1005, 1008. As we have announced in prior decisions:

The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with [this Court] in the exercise of our exclusive original jurisdiction in bar disciplinary matters.

State of Oklahoma ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21, (citing State of Oklahoma ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 262). Factual and legal determinations of the PRT are not binding on us, and any recommendations are merely advisory. Id. Likewise, we are required by RGDP Rule 6.12 to ensure the OBA has established charges of misconduct by clear and convine-ing evidence. State of Oklahoma ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶ 13, 212 P.3d 1186, 1192. Admissions or stipulations must be supported by testimony and/or exhibits, and we will evaluate the weight and credibility of the evidence presented to determine if a lawyer has violated rules governing their professional conduct. Id.

Analysis

T7 ORPC Rule 84(b) defines as professional misconduct, any eriminal act which reflects adversely on an attorney's "honesty, trustworthiness, or fitness as a lawyer." (Emphasis added). The sole basis of the OBA's proceeding against Conrady was the shooting incident of February 1, 2009; as such there was no contention that Conrady had breached any obligation to a client or that the criminal conduct was related to his practice of law. Thus, we are called upon to determine whether those criminal actions reflect on Conrady's fitness to practice law. More particularly, we must examine whether criminal conduct may serve as the basis for disciplinary measures, when it does not (1) call into doubt the honesty or trustworthiness of a lawyer, or (2) directly involve his/ her practice of law, or a client relationship.

18 Conrady stipulated that his conduct amounted to violations of the ethical constraints imposed by the ORPC and RGDP. Despite this acknowledgment we are bound to review the record to ensure the allegations of misconduct are supported by clear and convincing evidence. State of Oklahoma ex rel. Okla. Bar Ass'n v. Wilcox, 2009 OK 81, ¶ 4, 227 P.3d 642, 647. The testimony and exhibits reflect that Conrady pled guilty to multiple criminal offenses, including two felony charges. Entering a plea of guilty or nolo contendre to a felony charge has routinely been viewed by this Court as satisfactory evidence of professional misconduct. State of Oklahoma ex rel. Okla. Bar Ass'n v. Golden, 2008 OK 39, ¶ 4, 201 P.3d 862, 863; State of Oklahoma ex rel. Okla. Bar Ass'n v. Shanbour, 2003 OK 116, ¶ 5, 84 P.3d 107, 110; State of Oklahoma ex rel. Okla. Bar Ass'n v. Arnett, 1991 OK 44, ¶¶ 2, 9, 815 P.2d 170, 171-172; State of Oklahoma ex rel. Okla. Bar Ass'n v. Armstrong, 1990 OK 9, ¶ 9, 791 P.2d 815, 818.

19 We have also held that the criminal acts of a lawyer may be sufficient to establish violations of Rule 84 and Rule 1.3, even when the illicit conduct is not directly related to the practice of law. For example, in State of Oklahoma ex rel. Okla. Bar Ass'n v. McBride, 2007 OK 91, ¶ 15, 175 P.3d 379, 386, we determined that multiple aleohol-related offenses were indicative of the attorney's "indifference to legal obligations and ... [a pattern of] conduct that reflects adversely on the legal profession." Although unrelated to an attorney's practice, guilty pleas stemming from alleged sexual assaults, were deemed clear and convincing evidence the accused had violated ORPC Rule 8.4(b) and RGDP Rule 1.8. State of Oklahoma ex rel. Okla. Bar Ass'n v. Garrett, 2005 OK 91, ¶ 13, 127 P.3d 600, 605, see also State of Oklahoma ex rel. Okla. Bar Ass'n v. Wilburn, 2006 OK 50, ¶ 10, 142 P.3d 420, 423 (finding violation of ORPC Rule 84(b) and RGDP Rule 1.3 as a result of lawyer's guilty plea to charge of outraging public decency); State of Oklahoma ex rel. Okla. Bar Ass'n v. Murdock, 2010 OK 32, ¶ 15, 236 P.3d 107, 114 (attorney's Alford plea to one count of outraging public decency is clear and convincing evidence of RGDP Rule 1.3 violation).

110 Fitness to practice law, as contemplated by ORPC Rule 8.4(b), "encompasses more than an absence of detriment to specific clients." State of Oklahoma ex rel. Okla. Bar Ass'n v. Aston, 2003 OK 101, ¶ 11, 81 P.3d 676, 678. The Comments to Rule 8.4(b) are instructive:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (Emphasis added).

Although Conrady characterizes his illegal actions as "property crimes," we view them in a different light. During cross-examination before the PRT, Conrady acknowledged his efforts to locate McCroskey and Pierce inside the home while on his shooting rampage. Conrady denied any intent to do harm to Pierce or McCroskey, yet his actions were inconsistent with that statement. Although no one was physically injured as a result of the shooting, Conrady's reckless behavior could have easily resulted in death or serious bodily injury. Conrady's attempt to minimize his behavior ignores the emotional impact of his crimes and is an affront to his victims. In light of the compelling evidence in the record before us, Conrady's stipulation to the allegations of professional misconduct, the testimony and exhibits substantiating the criminal violations, and the violent nature of the crimes committed, we find clear and convincing evidence of professional misconduct in violation of ORPC Rule 8.4(b) and RGDP Rule 1.8.

1 11 Having found Conrady culpable under the ORPC and RGDP, we must now determine what level of discipline is justified. This Court is empowered to fix discipline commensurate with the facts, including by private reprimand, public censure, suspension, or disbarment. RGDP Rule 1.7. The American Bar Association's Standards for Imposing Lawyer Sanctions § 8.0 (2005) suggest a tribunal consider four factors in determining the appropriate level of discipline:

(a) the duty violated;

(b) the lawyer's mental state;

(c) the potential or actual injury caused by the lawyer's misconduct;

(d) the existence of aggravating or mitigating factors.

State of Oklahoma ex rel. Okla. Bar Ass'n v. O'Neal, 1993 OK 61, ¶ 7, 852 P.2d 713, 715 (citing ABA Standard 8.0(a)-(d)). We have consistently recognized that the facts and circumstances of each case will dictate its resolution. McBride, ¶ 24, 175 P.3d at 387.

112 Although we have imposed discipline for criminal transgressions which did not arise from the practice of law or client business, we have never considered facts demonstrating such a violent eriminal act.⁸ Because the circumstances are unique, we have canvassed decisions from other jurisdictions to assist us with implementing an appropriate level of discipline. The Louisiana Supreme Court faced a remarkably similar scenario in the case of In re Martin, 888 So.2d 178 (La.2004). The respondent attorney in Martin was charged with violating Rule 8.4(b) of the Louisiana Rules of Professional Conduct, in connection with a shooting incident at his ex-wife's home.⁹ Mr. Martin had spent several hours drinking alcohol and ingesting cocaine after discussing visitation issues with his ex-wife. Depressed and intoxicated, Martin returned to his ex-wife's home and "passed out" on the front lawn. Id. at 178-179. After noticing the man asleep in the front yard, neighbors called police and a standoff ensued. Id. at 179. When Mr. Martin attempted to leave in his truck, officers shot him with a stun gun. Id. at 179. The shock of the stun gun device caused Mr. Martin to discharge a firearm he was carrying. Id. No one was hit by the round fired from the gun, but police returned fire and wounded Mr. Martin. Id. Charges were subsequently filed and Martin pled guilty to five felony counts associated with the incident. Id. There was no dispute regarding the violation of Rule 8.4(b); the only question presented was the appropriate sancetion for the misconduct. As in the instant case, Mr. Martin testified he had no intention of harming anyone other than himself. Id. at 180, n. 6. Nonetheless, because the attorney created a real threat of potential or actual harm the Court explained that harsh discipline was in order:

In the instant case, respondent's decision to wield a loaded revolver in front of his ex-wife's house while in an intoxicated state created a very high possibility of harm. Despite respondent's lack of intent to cause harm to anyone other than himself, the fact remains that his gun discharged and could have easily injured one of the police officers or an innocent bystander. As in Brown, the seriousness of respondent's actions simply cannot be overstated. Consequently, we conclude the baseline sanction for this conduct is disbarment.

113 After considering mitigating factors, such as the attorney's depression, lack of prior discipline, intoxicated state of mind, cooperation with the state Bar Association, and his remorse, the Louisiana Supreme Court determined suspension for a period of three years was the appropriate discipline. Id. at 182-188. see also Disciplinary Counsel v. LoDico, 118 Ohio St.3d 316, 888 N.E.2d 1097, 1099 (2008) (holding that attorney's conviction for pointing a firearm at six bar patrons was a violation of ethical rules and warranted indefinite suspension from practice of law); Disciplinary Counsel v. Howard, 123 Ohio St.3d 97, 914 N.E.2d 377, 381 (2009) (issuing a two-year suspension from practice of law based on convictions associated with discharging a firearm in the direction of a police officer who was investigating a possible crime on attorney's property); In re Ervin, 387 S.C. 551, 694 S.E.2d 6, 9 (2010) (suspending attorney for a period of six months for pointing a firearm at another individual during a "road rage" incident); Matter of Lewis, 155 A.D.2d 205, 554 N.Y.S.2d 68, 69 (1990) (guilty plea entered in association with attorney's shooting of two rounds into apartment of person and slashing that person's car tires justified imposition of two-year suspension).

Mitigating Evidence

T 14 Conrady has been a licensed attorney in Oklahoma since 1976. Prior to the present matter, he had never been the subject of a disciplinary proceeding or charged with any criminal offense. Conrady self-reported the criminal charges and his subsequent guilty plea to the OBA. Throughout the grievance process he was cooperative and forthright, Three friends and colleagues testified at the PRT hearing on his behalf. Former District Judge John Maley told the panel he had known Conrady personally and professionally for twenty-five to thirty years. Judge Maley advised the PRT that Conrady is a competent lawyer who provided a real benefit to the Bar and community. Both of the other witnesses testified that Conrady was professional and capable as an attorney, and neither saw any decrease in his level of performance following the February 2009 incident.

T 15 In connection with Conrady's criminal case, a Pre-Sentence Investigation was performed by the Oklahoma Department of Corrections. The report indicated Conrady had accepted responsibility for his actions and had tested as a low risk/low needs offender. DOC recommended placing Conrady under supervised probation, and directed him to continue personal therapy and healthy behavior while under DOC supervision. Conra-dy's psychiatrist and psychologist both submitted letters on his behalf; each applauded the many steps taken by Conrady over the past year, including his abstention from drugs or alcohol.

Discipline

116 The goal in bar disciplinary matters is not to punish an attorney for his or her prior conduct, but to "safeguard the interest of the public, of the courts, and of the legal profession." State of Oklahoma ex rel. Okla. Bar Ass'n v. Albert, 2007 OK 31, ¶ 11, 163 P.3d 527, 532-533. Nonetheless, we must also weigh the deterrent effect upon Conrady and the Oklahoma Bar as a whole. Taylor, 1 22, 71 P.3d at 29. It is the responsibility of the Court to not only weigh those facts in favor of imposing discipline, but also evidence which mitigates the severity of professional misconduct. State of Oklahoma ex rel. Okla. Bar Ass'n v. Stewart, 2003 OK 13, ¶ 19, 71 P.3d 1, 4.

T17 Although there are substantial mitigating factors, we believe Conrady's violations are such that the appropriate discipline would ordinarily be disbarment from the practice of law. The PRT recommended a suspension of two-years and one day, and the OBA endorsed this proposed discipline. Counsel for Conrady has requested discipline by public censure or deferment of any suspension as this Court imposed in McBride, Garrett, and State of Oklahoma ex rel. Okla. Bar Ass'n v. Smith, 2011 OK 8, ¶ 22, 246 P.3d 1090, 1096-1097. Such a request by Conrady is unrealistic considering the gravity of his offense. With the exception of substance/aleohol abuse, the referenced cases have little in common with Conrady's misdeeds. Counsel characterizes his client's transgressions as "property crimes," minimizing the significance of Conrady's misconduct by assailing the PRT report for "(seeking] to punish Mr. Conrady for what might have happened as opposed to what actually happened." Respondent's Answer Brief at pp. 6, 8.

1 18 There can be no doubt that Conrady's intentional discharge of multiple rounds from a high caliber firearm was reckless and potentially deadly. Yet, Conrady's assertion overlooks the actual and personal harm which resulted from the shooting. Both MceCroskey and Pierce were forced to obtain protective orders and live their lives fearful of further aggression. McCroskey was required to temporarily suspend visits with his six-year-old daughter as a result of the shooting. The harm and threat of harm faced by these individuals was not a mere hypothetical, it was real and it was unnerving. The unlawful acts were also damaging to the legal profession as a whole. Conrady's actions brought embarrassment and discredit to himself and the entire profession.¹⁰ see State of Oklahoma ex rel. Okla. Bar Ass'n v. Thompson, 2008 OK 89, ¶ 8, 194 P.3d 1281, 1284 (finding criminal conduct so objectionable it could do nothing but "undermine public confidence and trust in the dignity and integrity of the judiciary and the legal profession."). Additionally, we take special note of exhibits presented by the OBA during the administrative hearing, which included emails sent from Conrady to Pierce. In spite of his alleged psychotherapy and sobriety, Conrady delivered e-mails to Pierce in March and April of 2010 which were offensive and demeaning.

{19 Weighing the mitigating evidence against the baseline discipline of disbarment, we hold Respondent, James Albert Conrady is hereby suspended from the practice of law for a period of two years and one day.¹¹ Complainant OBA's Application to Assess Costs is sustained, and Conrady is directed to pay costs in the amount of $1,426.41.

IN ACCORDANCE WITH RULE 1.7 OF THE RULES GOVERNING DISCIPLINARY PROCEEDINGS, RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR TWO ~ YEARS AND ONE DAY; RESPONDENT IS ORDERED TO PAY COSTS OF $1,426.41.

T 20 COLBERT, V.C.J., KAUGER (by separate writing), WATT, WINCHESTER, and GURICH, JJ., concur. 21 TAYLOR, C.J., EDMONDSON, and COMBS, JJ., dissent.

1 . 50.98.2001, ch. 1, app. 1-A.

2 . 5 0.9$.2001, ch. 1, app. 3-A.

3 . Conrady brought a total of seventeen rounds of ammunition with him. This included one round in the chamber, eight rounds in the loaded magazine, and eight additional rounds in an extra magazine clip.

4 . Conrady suggests that he went to the residence for the sole purpose of bringing about his own death. In his statement to police, Conrady wrote, "[i) went there hoping to get killed or if not I would kill myself." However, his actions and testimony before the PRT seem to contradict this position. Conrady also wrote in his February 15, 2009 statement to police, "(thank God they were not there." Exhibit 4A, Pre-Sentence Investigation. One of the interior doors was locked, and he attempted to break the door down twice. During his testimony at the hearing Con-rady acknowledged that he was looking for Pierce and McCroskey behind the locked door. (Tr. at 57).

5 . Conrady was ordered to pay restitution to his victims totaling $6,893.00 and court costs of $3,428.00. (Complainant's Ex. 1, Rule 8 hearing Summary).

6 . The OBA chose not to seek an interim suspension based on RGDP Rule 7.3 because Conrady temporarily ceased practicing law following his arrest in order to seek mental health and drug/alcohol treatment.

7 . While the plurality of the PRT recommended a suspension of two years and one day, one member was in favor of disbarment.

8 . In State of Oklahoma ex rel. Okla. Bar Ass'n v. Hayes, 2011 OK 71, 257 P.3d 1000, we evaluated a disciplinary proceeding arising out of an attorney being charged with felony assault with a dangerous weapon for allegedly hitting another man with his automobile. After finding Mr. Hayes had violated ORPC Rule 8.4 and RGDP Rule 1.3 we considered the appropriate measure of discipline and issued a thirty-day suspension from the practice of law. Id. 115, 257 P.3d at 1004-1005. Nevertheless, we believe Conrady's calculated and violent actions are extreme when compared to the facts in Hayes.

9 . Louisiana's version of Rule 8.4(b) is virtually identical to ORPC Rule 8.4(b).

10 . OBA Exhibit 5 contains a section from the Okmulgee Daily Times newspaper, with an article detailing the shooting incident and Conrady's arrest on felony complaints.

11 . Suspension for a period exceeding two years is "tantamount to disbarment." State of Oklahoma ex rel. Okla. Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 65, 264 P.3d 1197, 1222. Conrady must follow the procedures outlined in RGDP Rule 11.1 if he wishes to seek reinstatement to membership in the Oklahoma Bar.