State Ex Rel. Oklahoma Bar Ass'n v. Cox

2002 OK 23, 48 P.3d 780, 73 O.B.A.J. 1115, 2002 Okla. LEXIS 22, 2002 WL 485642
CourtSupreme Court of Oklahoma
DecidedApril 2, 2002
DocketSCBD 4623
StatusPublished
Cited by3 cases

This text of 2002 OK 23 (State Ex Rel. Oklahoma Bar Ass'n v. Cox) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Oklahoma Bar Ass'n v. Cox, 2002 OK 23, 48 P.3d 780, 73 O.B.A.J. 1115, 2002 Okla. LEXIS 22, 2002 WL 485642 (Okla. 2002).

Opinion

OPALA, J.

[ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? 1 and (2) Is a license suspension for sixty (60) days an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I

INTRODUCTION TO THE RECORD

12 On 23 May 2001 the Oklahoma Bar Association (the Bar) commenced this disciplinary proceeding against Mark A. Cox (respondent), a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings ("RGDP"). 2 The complaint alleges in two counts multiple violations of the Oklahoma Rules of Profes *783 sional Conduct ("ORPC"). The Bar has since withdrawn its reliance on ORPC Rules 3.3(a)(1), 8.4(a), 4.4, 8.4(c) and 8.4(d); it now rests the two counts solely on ORPC Rules 3.3(a)(4)(B) and 3.4(f). ©

13 On 23 August 2001 a trial panel of the Professional Responsibility Tribunal (PRT) held 'a hearing to consider the charges. At its commencement the trial panel recognized for the record the admission of a document containing the parties' stipulations of fact, conclusions of law, and an agreed disciplinary recommendation. Respondent admitted (by stipulation) that his conduct violates ORPC Rules 3.3(a)(4)(B) 3 and 3.4(f). 4 As for mitigation, the parties agreed that respondent had never before been disciplined (by the Professional Responsibility Commission or by this court) or been the subject of a formal investigation by the Bar's counsel. The parties also agreed that respondent had fully cooperated with the counsel during the investigation and in the PRT proceeding. They recommended that respondent receive a private reprimand. >

T4 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). The panel recommended that respondent receive a private reprimand.

II

THE RECORD BEFORE THE COURT PROVIDES - SUFFICIENT - EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

15 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance. 5 Its jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this State's legal practitioners. 6 In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts, 7 in. which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive. 8 In this undertaking we are not re *784 stricted by the sceope-of-review rules that govern corrective relief on appeal or in cer-tiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference. 9

T6 The court's duty can be discharged only if the trial panel submits a complete record of the proceedings. 10 Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent on-the-record determination of the facts and (b) the crafting of an appropriate discipline. 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 of the offending lawyer. 11

17 Having carefully serutinized the record submitted, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct and of the discipline to be imposed.

IH

FACTS ADMITTED BY STIPULATION

§8 The parties have tendered their stipulations in 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 established. It serves as an evidentiary substitute that dispenses with the need for legal proof of facts that are conceded by the parties' agreement. Stipulations are subject to the approval of the court in which they are entered. 12 We find from the record that respondent's stipulations of facts (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 One-Failure to Promptly Reveal Information to Opposing Counsel Upon Request

19 Respondent admits what is alleged in Count One of the complaint: that he failed promptly to reveal to opposing counsel at the deposition of a witness the existence of an expert witness' notes (which were in respondent's possession}. We reject the parties' stipulation that this conduct violates ORPC Rule 3.8(a)(d)(B). 13 While it is true that respondent did not immediately reveal the availability of his witness' notes, ORPC Rule 3.3(a)(4)(B) does not demand an instant response. Rather, the cited rule requires only that a lawyer promptly reveal the false character of evidence. As recognized by both parties in their stipulations, respondent provided opposing counsel with the requested documents before the deposition hearing came to its end. No evidence of prejudice occasioned by the slight delay is present in this record; rather, respondent fully repaired whatever harm might otherwise have occurred by surrendering the notes before anyone's legal position underwent a change *785 and before any prejudice to opposing counsel could have resulted. Neither the stipulations nor anything else on file provides clear and convincing proof that respondent offended ORPC Rule 3.3(a)(4)(B). He must and hence does stand exonerated of that charge.

B.

Count Two-Influencing Dr. Sternlof to Refrain From Testifying as an Expert Witness

10 Respondent admits what is alleged in Count Two of the complaint: that he asked Dr. Sternlof, a close, personal friend, to refrain from testifying as an expert witness for opposing counsel. Respondent stipulates he told Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 OK 23, 48 P.3d 780, 73 O.B.A.J. 1115, 2002 Okla. LEXIS 22, 2002 WL 485642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-cox-okla-2002.