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

1979 OK 116, 598 P.2d 663, 1979 Okla. LEXIS 325

• Court: Supreme Court of Oklahoma
• Decided: July 24, 1979
• Docket: S.C.B.D. 2720
• Status: Published

Opinions

DOOLIN, Justice:

Article X, § 4(b) of the Rules of the Oklahoma Bar Association ¹ provides that:

“A member of the association who has been convicted in any jurisdiction of a crime involving moral turpitude regardless of whether conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal.”

Respondent pleaded guilty in Kay County, Oklahoma, to two charges, one involving unlawful possession of amphetamines and one involving unlawful possession of marijuana. Sentence was deferred on the amphetamine charge and he was placed on probation without supervision for one year. That probation time expired in August of 1978, the case was dismissed by operation of law and his plea of guilty was expunged from the record. Because the expungement was prior to the date of the disciplinary proceeding, the trial authority found his plea could not be used against him by the Oklahoma Bar Association.²

The sentence on the charge of unlawful possession of marijuana was similarly deferred. However his probation time on this charge was two years and does not expire until August 1979. On this basis, that of the conviction of possession of marijuana alone, the trial authority found respondent to have pleaded guilty to a crime of moral turpitude and recommended that he be suspended from the practice of law for one (1) year.

The issue for decision by this Court is whether such recommendation should be approved. We are not bound by the trial authority’s recommendation but may take any action which we deem appropriate.³ Respondent pleaded guilty to a misdemean- or involving possession only. Does this involve moral turpitude and thus require discipline?

This court in State ex rel. Oklahoma Bar Association v. Jones, 566 P.2d 130 (Okl.1977) attempted to delineate the elements of moral turpitude. We stated moral turpitude implies something immoral in itself regardless of fact of whether it is punishable by law. Important elements are intent and knowledge. There can be no question under the conviction respondent is accountable for intent to possess the marijuana and knowledge that such possession is illegal. Moral turpitude is admittedly an elusive concept incapable of precise definition. Its definition may change with the times and vary from community to community.⁴

In Oklahoma, the primary purpose of discipline is not punishment, but purification of the bar and protection of the courts and the public generally. But this is not the sole purpose for discipline. It must also serve to deter respondent from committing similar acts in the future and it further acts as a restraining influence on other attorneys.⁵

We hold respondent’s wilful misconduct in violation of the law of Oklahoma is a crime of moral turpitude under the definition of State ex rel. Oklahoma Bar Association v. Jones, supra. Thus he is subject to discipline under Rule 4(b).

A first time offender charged with unlawful possession of marijuana (a misdemeanor) has an opportunity to have his conviction expunged from the record.⁶ Respondent’s crime will be expunged by operation of law in August of 1979 if he meets the requirements of his probation. Although respondent must be disciplined, we believe a suspension for the length of his probation is adequate warning that this court does not condone such acts. This court has discretion in determining appropriate discipline.⁷ It is therefore ordered David 0. Denton be suspended until the date his deferred sentence is completed.

LAVENDER, C. J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concur. IRWIN, V. C. J., and OPALA, J., dissent. SIMMS, J., concurs in result.

1 . 5 O.S.1978 Supp. Ch. 1, App. 1.

2 . See 63 O.S.1971 § 2-410.

3 . Art. X, § 16(b) Rules of Oklahoma Bar Association.

4 . In re Higbie, 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97 (1972); 58 C.J.S. Moral pp. 1200-1207.

5 . State ex rel. Oklahoma Bar Association v. Hall, 567 P.2d 975 (Okl.1977).

6 . 63 O.S.1971 §§ 2-402, 2-410.

7 . State ex rel. Oklahoma Bar Association v. Gresham, 556 P.2d 264 (Okl.1976).