State ex rel. Oklahoma Bar Ass'n v. Olmstead

2012 OK 71, 285 P.3d 1110, 2012 WL 3930682, 2012 Okla. LEXIS 74
CourtSupreme Court of Oklahoma
DecidedSeptember 10, 2012
DocketSCBD No. 5843
StatusPublished
Cited by4 cases

This text of 2012 OK 71 (State ex rel. Oklahoma Bar Ass'n v. Olmstead) 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. Olmstead, 2012 OK 71, 285 P.3d 1110, 2012 WL 3930682, 2012 Okla. LEXIS 74 (Okla. 2012).

Opinion

COMBS, J.

1 The issues in this original proceeding for attorney discipline are: (1) whether the record before this Court is sufficient for review of the charges against the respondent and for disposition, and (2) what is the appropriate discipline. We find the record is sufficient for a meaningful review and the appropriate discipline is suspension from practice of law for one year.

I. BACKGROUND

12 This disciplinary proceeding is before this Court pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings (RGDP), 5 0.8. 2001, ch. 1, app. 1-A. Rule 7 provides for summary disciplinary proceedings before this Court. Rules 7.1 through 7.5 deal specifically with discipline of a lawyer who has been convicted of a crime. Pursuant to Rule 7.2, the complainant, Oklahoma Bar Association (OBA), by a March 6, 2012 letter, notified this Court that respondent, George Wayne Olmstead, (hereinafter Olmstead) had been convicted of the crime of violation of the Oklahoma Computer Crimes Act in violation of 21 0.8. § 1953(A)(8) This statute provides:

A. It shall be unlawful to:
3. Willfully exceed the limits of authorization and damage, modify, alter, destroy, copy, delete, disclose or take possession of a computer, computer system, computer network or any other property; |
B. Any person convicted of violating paragraph 1, 2, 3, 6, 7 or 9 of subsection A of this section shall be guilty of a felony punishable as provided in Section 1955 of this title.

Id. Materials attached to the letter included the plea of no contest and summary of facts and Order Deferring Imposition of Judgment and Sentence.

T3 Olmstead entered into a plea agreement and pled no contest to the crime of violation of the Oklahoma Computer Crimes Act in violation of 21 0.8. § 1953(A)(3).1 The trial court deferred the imposition of sentencing until the 10th day of January 2018 and Olmstead was placed on probation and [1112]*1112ordered to complete a mental health evaluation and complete any follow up treatment. Under 7.2 of the RGDP, the documents submitted by the OBA constitute the charge and are "conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline...."

I 4 We observed the Journal Entry finding Olmstead guilty and deferring sentence to facially demonstrate Olmstead's unfitness to practice law. This Court suspended Olm-stead from the practice of law on March 12, 2012. See RGDP at rule 7.3. In the same order, Olmstead was directed to show cause why the interim suspension should be set aside, to show cause why final discipline should not be imposed, to request a hearing if one was desired, to file a brief, and to present evidence tending to mitigate the severity of the discipline. Olmstead requested that the Interim Suspension be set aside which was denied on April 9, 2012. On April 11, Olmstead requested a hearing to offer mitigating evidence.

II. FACTS

15 From the judgment, plea agreement, and Olmstead's own plea of no contest and other admissions, he actively participated in acts in violation of 21 0.8. § 1953(A)(8). In the plea of no contest summary of facts, Olmstead stated:

On or about the 10th day of February, 2011 through the 28rd day of March, 2011 the crime of Violation of the Oklahoma Computer Crimes Act was committed in Harper County by the defendant George Wayne Olmstead who as the duly-elected and duly-qualified Associate District Judge for Harper County, Oklahoma; that prior to the date was issued a State E-mail address and provided a computer with internet access through the Oklahoma Computer Information System provided for his use in his judicial duties including the Rules for Using the Oklahoma Court Information System duly adopted and approved by the Supreme Court of Oklahoma which provides that each user will not download inappropriate material as de-seribe in said Rules, and that George Wayne Olmstead did then and there did download, receive, obtain, and store thereafter certain inappropriate material contrary to the provision of Section 1958 of Title 21 of the Oklahoma Statutes and against the peace and dignity of the State of Oklahoma.

This misuse of State property resulted in his resignation from office and the plea of no contest previously stated. The trial panel suggested that public reprimand be the proper punishment for Mr. Olmstead. The Oklahoma Bar Association, however, urges public censure would be insufficient to protect the public confidence in the legal system suggesting Olmstead be suspended from the practice of law. Our review is de novo and we are not required to accept the recommended discipline. State ex rel. Okla. Bar Ass'n v. Wilburn, 2006 OK 50 ¶ 4, 142 P.3d 420, 422.

IIL MITIGATION AND ENHANCEMENT

T6 Olmstead submits several factors mitigate his punishment. He had several friends and other attorneys testify as to his reputation as a competent lawyer. He treated the people before him with respect the testimony reflects. He was also a wonderful father and grandfather. Evidence was also presented as to the lack of legal representation in Harper County. Olmstead himself testified as to his history as a pilot in Vietnam. He testified that he received the Air Medal, twice received the Distinguished Flying Cross, a Bronze Star and the Army Commendation Medal of Honor. He was discharged from the U.S. Army as a Captain and returned to Harper County and helped operate the family farm/ranch. He received his bachelor's degree from Northwestern Oklahoma State University in 1984 and his Law Degree from the University of Oklahoma in 1987. He practiced law in Buffalo, Oklahoma for several years until the sitting Associate District Judge retired and then he ran for that office. He resigned his position as Associate District Judge as part of the plea agreement and now requests this Court to give him a public reprimand.

[1113]*1113T7 This Court does not agree that all the factors proposed by Olmstead are mitigating. The nature of the content and volume of the material downloaded by Olmstead cannot be minimized. The act of downloading adult sexually suggestive materials in tremendous volume on a State owned computer is a very serious offense which should not be minimal-ized. This misconduct violated the rules governing a lawyer's conduct, was egregious, an abuse of trust and brought great disrepute to the legal profession, and the judiciary. This information was widely reported and resulted in significant embarrassment to the legal profession and the judiciary.

18 The bare mitigating factors that he is a good lawyer and a good person cannot overcome the fact that he knowingly used his state-owned computer to download sensitive materials in tremendous volume for his personal use. His arguments that he has been punished enough by the loss of his job and public embarrassment is in fact not enough punishment for his lack of judgment and respect for the position he held. At a minimum, Respondent's conduct violated Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 0.8.2011, Ch.1, App. 3-A, which provides, "(ilt is professional misconduct for a lawyer to ...

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Bluebook (online)
2012 OK 71, 285 P.3d 1110, 2012 WL 3930682, 2012 Okla. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-olmstead-okla-2012.