OP ALA, Justice.
In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record
sufficient for a meaningful
de novo
consideration of the complaint’s disposition? and (2) Is a two-year-and-a-day suspension with imposition of costs an appropriate disciplinary sanction to be imposed for Respondent’s breach of professional discipline? We answer both questions in the affirmative.
The Oklahoma Bar Association [Bar] charged Josh J. Evans [Evans or respondent], a licensed lawyer, seventy-seven (77) years of age, with three counts of professional misconduct. After a hearing, a panel of the Professional Responsibility Tribunal [PRT] made findings of fact and conclusions of law together with a recommendation of discipline. The PRT ruled that respondent, due to a lack of understanding and ability, violated Rules 1.1, 1.3, and 1.4 of the Oklahoma Rules of Professional Conduct
and
Rule 5.2 of the Rules Governing Disciplinary Proceedings.
It recommended Evans be suspended from the practice of law for two years and one (1) day and be required to pay the costs of this proceeding.
FACTS IN SUPPORT OF COUNT I
On January 12, 1990, Jerry Waide Hawley [Hawley] hired respondent to defend him against five felony counts in Texas County District Court, Cause No. CRF-89-165. Later, on March 12, 1990, Hawley was charged with another felony in Cause No. CRF-90-39 in Texas County, and respondent once again agreed to represent him in this case. Cause No. CRF-90-39 was tried to a jury on June 21, 1990. Hawley was found guilty of attempted burglary
after former conviction of a felony.
He then pled guilty to all five (5) counts in Cause No. CRF-89-165. On July 3, 1990 Hawley was sentenced in Cause No. CRF-89-165 to forty (40) years in prison [with twenty-five (25) years “to do” and fifteen (15) years to be suspended]. In Cause No. CRF-90-39 he was sentenced to twenty-five (25) years in prison to run concurrently with his sentence in CRF-89-165.
During his representation of Hawley in Cause No. CRF-90-39, respondent was found to have engaged in the following conduct:
a. He failed to appear at a preliminary hearing scheduled for April 9, 1990, and the hearing proceeded in the presence of the uncounseled defendant.
At this preliminary hearing exhibits were introduced and witnesses examined, with a transcript taken by a court reporter. Respondent did not request that an additional preliminary hearing be set.
b. Before trial, respondent-did not order a transcript of the preliminary hearing nor did he review the introduced exhibits that were a part of the record. Neither did he interview the State’s witnesses.
c. Respondent failed to make an opening statement.
d. Respondent failed to cross-examine some of the State’s witnesses, including the eyewitness to the attempted burglary for which Hawley was tried.
e. Respondent failed to make a closing statement.
f. Respondent failed to put on evidence during Phase II of the trial
which related to Hawley’s former felony convictions. He admitted during this phase in a bench conference that he “didn’t understand the procedure”.
g. Respondent represented to Hawley that during Phase II, if Hawley did not testify during Phase I of the trial, the State could not put on evidence of his prior convictions.
Hawley would have considered the State’s plea bargain offer if he had not received erroneous legal advice from the respondent.
.After the trial in Cause No. CRF-90-39 Alfred Maxwell, an assistant district attorney handling part of the State’s case against Hawley, approached Hawley’s parents to suggest that their son file an application for post-conviction relief. Hawley then initiated that quest. A hearing on his application was held October 24, 1990. During this proceeding, in which Hawley was represented by court-appointed counsel, Jim Loepp [Loepp], the district court inquired into the quality of the respondent’s representation of Hawley in Cause No. CRF-90-39 and concluded his representation of Hawley was “substandard, incompetent”. The court modified Hawley’s sentence of forty (40) years by ordering that he serve ten (10) years instead of the earlier pronounced twenty-five (25) years of the sentence.
FACTS IN SUPPORT OF COUNT II
In early October 1990 Michael D. Melius [Melius] was arrested and charged with several drug-related offenses. During trial on these criminal charges he was represented by Loepp, who was appointed by the court. Melius was acquitted of all charges by verdict dated March 4, 1991.
Shortly after Melius’ arrest on October 8, 1990, he was served with
Notice of Forfeiture and Seizure
of his pick-up truck [Cause No. C-90-212] and of the cash in his possession [Cause No. C-90-211] when he was apprehended. Although Loepp [the public defender] did assist Melius by providing him an answer form which could be used to respond to the notice, Loepp informed Melius he could not represent him in the forfeiture proceeding. Melius appeared
pro se
at the forfeiture hearing. The district court found against him and on March 22, 1991 ordered his personal property forfeited. During that hearing the State discovered that Melius had no notice regarding its forfeiture quest of a pistol, also seized when he was arrested.
After the March 22, 1991 hearing Melius retained respondent to represent him in an appeal from the order forfeiting the truck and cash and to contest the state claim to forfeit his pistol. Melius was served on April
26, 1991 [Cause No. C-91-64] with notice of the claim to forfeit his pistol. He paid respondent a “retainer” of five hundred dollars ($600.00) for the forfeiture-related services.
On several occasions Melius wrote respondent to inquire about the lawyer’s efforts to secure the return of Melius’ personal property. Not only did respondent
fail to communicate
with his client about these matters, he also did not respond, plead or appear in Cause No. C-91-64 — the proceeding to forfeit the pistol. The hearing in the latter cause, which was held on August 9, 1991, more than four months after respondent was retained by Melius, resulted in a forfeiture order. Respondent
completely failed to take any legal action
on Melius’ behalf in any of the forfeiture-related proceedings.
FACTS IN SUPPORT OF COUNT III
Following July 19, 1991 the Bar began receiving complaints from Melius about the respondent’s lack of services described in Count II above.
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OP ALA, Justice.
In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record
sufficient for a meaningful
de novo
consideration of the complaint’s disposition? and (2) Is a two-year-and-a-day suspension with imposition of costs an appropriate disciplinary sanction to be imposed for Respondent’s breach of professional discipline? We answer both questions in the affirmative.
The Oklahoma Bar Association [Bar] charged Josh J. Evans [Evans or respondent], a licensed lawyer, seventy-seven (77) years of age, with three counts of professional misconduct. After a hearing, a panel of the Professional Responsibility Tribunal [PRT] made findings of fact and conclusions of law together with a recommendation of discipline. The PRT ruled that respondent, due to a lack of understanding and ability, violated Rules 1.1, 1.3, and 1.4 of the Oklahoma Rules of Professional Conduct
and
Rule 5.2 of the Rules Governing Disciplinary Proceedings.
It recommended Evans be suspended from the practice of law for two years and one (1) day and be required to pay the costs of this proceeding.
FACTS IN SUPPORT OF COUNT I
On January 12, 1990, Jerry Waide Hawley [Hawley] hired respondent to defend him against five felony counts in Texas County District Court, Cause No. CRF-89-165. Later, on March 12, 1990, Hawley was charged with another felony in Cause No. CRF-90-39 in Texas County, and respondent once again agreed to represent him in this case. Cause No. CRF-90-39 was tried to a jury on June 21, 1990. Hawley was found guilty of attempted burglary
after former conviction of a felony.
He then pled guilty to all five (5) counts in Cause No. CRF-89-165. On July 3, 1990 Hawley was sentenced in Cause No. CRF-89-165 to forty (40) years in prison [with twenty-five (25) years “to do” and fifteen (15) years to be suspended]. In Cause No. CRF-90-39 he was sentenced to twenty-five (25) years in prison to run concurrently with his sentence in CRF-89-165.
During his representation of Hawley in Cause No. CRF-90-39, respondent was found to have engaged in the following conduct:
a. He failed to appear at a preliminary hearing scheduled for April 9, 1990, and the hearing proceeded in the presence of the uncounseled defendant.
At this preliminary hearing exhibits were introduced and witnesses examined, with a transcript taken by a court reporter. Respondent did not request that an additional preliminary hearing be set.
b. Before trial, respondent-did not order a transcript of the preliminary hearing nor did he review the introduced exhibits that were a part of the record. Neither did he interview the State’s witnesses.
c. Respondent failed to make an opening statement.
d. Respondent failed to cross-examine some of the State’s witnesses, including the eyewitness to the attempted burglary for which Hawley was tried.
e. Respondent failed to make a closing statement.
f. Respondent failed to put on evidence during Phase II of the trial
which related to Hawley’s former felony convictions. He admitted during this phase in a bench conference that he “didn’t understand the procedure”.
g. Respondent represented to Hawley that during Phase II, if Hawley did not testify during Phase I of the trial, the State could not put on evidence of his prior convictions.
Hawley would have considered the State’s plea bargain offer if he had not received erroneous legal advice from the respondent.
.After the trial in Cause No. CRF-90-39 Alfred Maxwell, an assistant district attorney handling part of the State’s case against Hawley, approached Hawley’s parents to suggest that their son file an application for post-conviction relief. Hawley then initiated that quest. A hearing on his application was held October 24, 1990. During this proceeding, in which Hawley was represented by court-appointed counsel, Jim Loepp [Loepp], the district court inquired into the quality of the respondent’s representation of Hawley in Cause No. CRF-90-39 and concluded his representation of Hawley was “substandard, incompetent”. The court modified Hawley’s sentence of forty (40) years by ordering that he serve ten (10) years instead of the earlier pronounced twenty-five (25) years of the sentence.
FACTS IN SUPPORT OF COUNT II
In early October 1990 Michael D. Melius [Melius] was arrested and charged with several drug-related offenses. During trial on these criminal charges he was represented by Loepp, who was appointed by the court. Melius was acquitted of all charges by verdict dated March 4, 1991.
Shortly after Melius’ arrest on October 8, 1990, he was served with
Notice of Forfeiture and Seizure
of his pick-up truck [Cause No. C-90-212] and of the cash in his possession [Cause No. C-90-211] when he was apprehended. Although Loepp [the public defender] did assist Melius by providing him an answer form which could be used to respond to the notice, Loepp informed Melius he could not represent him in the forfeiture proceeding. Melius appeared
pro se
at the forfeiture hearing. The district court found against him and on March 22, 1991 ordered his personal property forfeited. During that hearing the State discovered that Melius had no notice regarding its forfeiture quest of a pistol, also seized when he was arrested.
After the March 22, 1991 hearing Melius retained respondent to represent him in an appeal from the order forfeiting the truck and cash and to contest the state claim to forfeit his pistol. Melius was served on April
26, 1991 [Cause No. C-91-64] with notice of the claim to forfeit his pistol. He paid respondent a “retainer” of five hundred dollars ($600.00) for the forfeiture-related services.
On several occasions Melius wrote respondent to inquire about the lawyer’s efforts to secure the return of Melius’ personal property. Not only did respondent
fail to communicate
with his client about these matters, he also did not respond, plead or appear in Cause No. C-91-64 — the proceeding to forfeit the pistol. The hearing in the latter cause, which was held on August 9, 1991, more than four months after respondent was retained by Melius, resulted in a forfeiture order. Respondent
completely failed to take any legal action
on Melius’ behalf in any of the forfeiture-related proceedings.
FACTS IN SUPPORT OF COUNT III
Following July 19, 1991 the Bar began receiving complaints from Melius about the respondent’s lack of services described in Count II above. Initially, the Bar requested respondent to communicate with his client. Then, on August 26, 1991, the Bar received from Melius a letter alleging facts which are the substance of its Count II. Pursuant to Rule 5.2, Rules Governing Disciplinary Proceedings,
the Office of the General Counsel mailed to Evans, at his current roster address, notice that the General Counsel was initiating a grievance and advising Evans he was to file a written response within twenty (20) days.
Evans did not respond.
The Office of the General Counsel then notified the respondent [by certified mail] that he should file a written response in five (5) days of receiving the certified letter.
Evans again did not respond.
When respondent did not file a response to the second letter, the Professional Responsibility Commission issued a subpoena
duces tecum
commanding him to appear for deposition on December 5, 1991. The respondent’s deposition was taken on December 12, 1991. He admitted to not responding
intentionally
to the letters of the Office of the General Counsel because requiring him to do so seemed “silly”.
I
THE RECORD BEFORE THE COURT IS COMPLETE FOR A
DE NOVO
CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING
The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings.
The court’s review is conducted by
de novo
consideration of the prosecution brought before us.
Neither the PRT panel’s findings nor its assessments with respect to the weight or credibility of the evidence can bind this court.
In a
de novo
consideration, in which the court exercises its constitutionally invested, nondelega-ble power to regulate both the practice of law and the legal practitioners,
a full-scale exploration of all relevant facts is mandatory.
The court’s task cannot be discharged unless the PRT panel submits a complete record of proceedings for a
de novo
examination of all pertinent issues.
Our responsibility is hence to ensure that the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline
that would avoid the vice of visiting disparate treatment on the respondent-lawyer.
The record is adequate for our
de novo
■consideration of Evans’ alleged professional misconduct.
II
A TWO-YEAR-AM)-ONE-DAY SUSPENSION IS AN APPROPRIATE SANCTION FOR RESPONDENT’S PAST PROFESSIONAL MISCONDUCT
The court’s responsibility in a disciplinary proceeding is not to punish but to
inquire into the lawyer’s continued fitness, with a view to safeguarding the interest of the public, of the courts and of the legal profession.
The circumstances of a lawyer’s professional misconduct (Rule 6)
are important in searching for solutions that would accord with the law’s imperative of ensuring the public its due protection from substandard lawyers.
The complaint against Evans was pressed as a Rule 6 proceeding, which focuses on the lawyer’s
offending past conduct.
Evans has been charged with (1) failure to provide his clients with competent representation in the criminal and forfeiture eases with which he was entrusted,
(2) lacking diligence and promptness in representing his clients,
(3) not keeping his clients informed,
and (4) failure to comply with the Rules Governing Disciplinary Proceedings by not
timely
responding to the Bar’s inquiry
Professional
competence
— ie., acting
promptly in pending matters and communicating with a client — is a
mandatory obligation
imposed upon licensed practitioners. Albeit onerous, this obligation is the
very minimum
to be expected from a lawyer. It epitomizes professionalism. Anything less is a breach of a lawyer’s duty to serve the client.
As reflected by the record, Evans’ conduct represents a marked departure from these standards.
A lawyer’s license is a certificate of professional fitness to deal with the public as a legal practitioner. Public confidence in the practitioner is essential to the proper functioning of the profession. A
lawyer’s misconduct
adversely reflects on the entire Bar because it exhibits a lack of commitment to the clients’ causes, to the courts, and to other members of the Bar. Evans’ actions call for the imposition of discipline.
On
de novo
review, we find the three counts of the Bar’s complaint amply supported by clear and convincing record proof.
The PRT panel’s recommendation that Evans be suspended from the practice of law for a two-year-and-one-day interval is accordingly approved.
Within thirty days of the date of this opinion Evans shall pay the costs incurred in this proceeding in the amount of $3,652.77.
Respondent stands suspended for two years and one day from the day this opinion becomes final. As a precondition for his reinstatement eligibility, he must promptly pay the costs incident to this disciplinary prosecution.
All Justices concur.