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

1990 OK 72, 796 P.2d 627, 61 O.B.A.J. 1955, 1990 Okla. LEXIS 79, 1990 WL 98196

• Court: Supreme Court of Oklahoma
• Decided: July 17, 1990
• Docket: SCBD 3652
• Status: Published

Opinions

OPINION

ALMA WILSON, Justice:

Respondent lawyer was accused by Petitioner Bar Association of professional misconduct sufficient to warrant professional discipline.

Thereafter, respondent stipulated to the following agreed facts and conclusions of law concerning two counts, which stipulations were accepted and approved by each of the three members of the Professional Responsibility Tribunal.

STIPULATIONS OF FACT AS TO COUNT I

[1] In June, 1988, Respondent was asked by a Ft. Smith, Arkansas, attorney to associate with him on an Oklahoma wrongful death case in which a 17-month old child drowned on a tract of land owned by Mr. and Mrs. James Erp.

[2] The Erp’s insurance company was located in Dallas, Texas, and subcontracted the claim to be worked by an independent adjustment company in Little Rock, Arkansas.

[3] On May 23, 1989, Respondent drove to Little Rock and hand-delivered a settlement brochure to the adjuster.

[4] Approximately seven days later, the adjuster returned the brochure to Respondent making no comment regarding Respondent’s settlement offer.

[5] On or about June 9, 1989, Respondent wrote a letter to the Erps. In his letter Respondent gave the Erps legal advice, made numerous threatening and/or intimidating remarks, and suggested the Erps make a demand on their insurance company to settle the claim.

AGREED CONCLUSIONS OF LAW AS TO COUNT I

Respondent’s conduct violated the mandatory provisions of Rule 4.3, Oklahoma Rules of Professional Conduct, 5 O.S. Ch. 1, App. 3-A (1988), to wit:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. A lawyer shall not give advice to such a person other than the advice to secure counsel, if the interests of such person are, or have a reasonable possibility of being, in conflict with the interests of the client.

and constitutes grounds for professional discipline.

STIPULATIONS OF FACT AS TO COUNT II

[1] Respondent has served as Pocola City Attorney for approximately the last three (3) years.

[2] The Mayor of Pocola, a community of approximately four thousand (4,000) residents, approached Respondent about serving as Municipal Judge as well as City Attorney.

[3] Respondent agreed and served as Pocola Municipal Judge for a period of two (2) years while he was also acting as Pocola City Attorney.

AGREED CONCLUSIONS OF LAW AS TO COUNT II

Respondent’s conduct violated the mandatory provisions of DR 9-101(A) and (B), Code of Professional Responsibility, to wit:

(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

and Rule 1.12(a), Oklahoma Rules of Professional Conduct, to wit:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a mater [sic] in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

AGREED MITIGATION

[1] Respondent was admitted to practice in Oklahoma in 1982, and has not been previously disciplined.

[2] Respondent resigned his position as Pocola Municipal Judge on January 16, 1990.

AGREED RECOMMENDATION FOR DISCIPLINE

[1] Respondent shall be publicly censured as discipline in the above-referenced matters.

[2] Respondent shall be liable for the costs of this disciplinary proceeding and such costs shall be paid by Respondent as a condition to Respondent’s continued practice of law.

The Rules governing Disciplinary Proceedings, 5 O.S.1981, Ch. 1, App. 1-A, Rule 6.15(a), state that this Court may approve the Trial Panel’s findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate. When this Court functions in its constitutional capacity as the state’s exclusive licensing authority for legal practitioners, its decisions are made de novo. “All facts responsive to the issues formed before the panel must be independently redetermined.” State ex rel. Oklahoma Bar Ass’n. v. Cantrell, 734 P.2d 1292 (Okl.1987). The stipulations of fact in the two counts quoted above consist of conclusions of law and do not state sufficient facts for this Court to adopt the recommendation of the Professional Responsibility Tribunal of public censure.

Concerning Count I, the letter which is the basis for the allegation of misconduct is not made a part of the record. The transcript of the hearing does not reveal that the letter was considered by the trial panel, nor does it reveal that the letter was admitted into evidence. Concerning Count II, while the respondent admits that he served as both the city attorney and the municipal judge, his attorney, speaking for him in mitigation of discipline, stated:

... Mr. Perceful is the only attorney in that community. That he had acted in one capacity and was approached by the mayor and the mayor requested that he act in the other capacity.

He did do some research on the fact that there might be a possible conflict between acting as city attorney and municipal judge. As municipal judge, he mainly hears violations of city ordinances. As city attorney, he’s mainly involved in advising the city on civil matters. He did contact the General Counsel for the Oklahoma Municipal League and discuss the matter with her.

The fact that an attorney advises the city on civil matters and sits as judge on violations of city ordinances is not presumptively a violation of the Rules of Professional Conduct.¹

This Court has no greater duty than to protect the public from unethical lawyers through our constitutional power to control and regulate the practice of law by licensing lawyers, promulgating rules of professional conduct, and disciplining legal practitioners when the evidence warrants discipline. See Tweedy v. Oklahoma Bar Ass’n., 624 P.2d 1049 (Okl.1981). The primary purpose of disciplinary proceedings is not punishment but purification of the Bar. State ex rel. Oklahoma Bar Ass’n. v. Samara, 683 P.2d 979 (Okl.1984). But we likewise have a duty through our power of de novo review to protect the members of the bar from disparate treatment. Although this Court has the power to remand a case to the panel, as we did in State ex rel. Oklahoma Bar Ass’n v. Lloyd, 787 P.2d 855, 856 (Okl.1990),² the record presented to this Court is insufficient to warrant a sanction. We refuse to speculate whether if the proceeding, were remanded, the evidence might be found to warrant discipline. After considering the stipulations of fact, agreed conclusions of law, agreed mitigation, and agreed recommendation for discipline, we conclude that dismissal of the proceeding is appropriate. Rule 6.15(a), supra.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THIS COURT that the recommendation of the Professional Responsibility Tribunal be rejected and that the complaint be DISMISSED.

LAVENDER, DOOLIN, KAUGER and SUMMERS, JJ., concur. HARGRAVE, C.J., OPALA, V.C.J., and HODGES and SIMMS, JJ., dissent.

1 . Rule 1.12(a), titled "Former Judge or Arbitrator”, and cited by the dissent provides: "Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.” There is no evidence that the respondent prosecutes the cases which he also adjudicates. Rule 1.12(a) has no application to the fact situation before us.

Concerning the assertion in the dissent that dual service contravenes federal due process, the cases cited to support this contention are distinguishable. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) and Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) both involve mayors who also served as judges for their communities. In Tumey, the mayor received a substantial income from convicting violators of prohibition laws. Where the accused was found innocent, the mayor received no fee. In Ward, the mayor’s court generated almost half of the city's income. The Ward court stated that the holding in Tumey was that the Fourteenth Amendment was violated and a defendant was deprived of due process of law where his liberty or property was subjected to the judgment of a court in which the judge had a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case. Ward, 409 U.S. at 60, 93 S.Ct. at 83. The court stated that the “mere union of the executive power and the judicial power in [the mayor] can not be said to violate due process of law.” Ward, 409 U.S. at 60, 93 S.Ct. at 83, quoting Tumey, 273 U.S. at 534, 47 S.Ct. at 445. The test found in Tumey and reiterated in Ward was whether the mayor’s situation was one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the ac-cused_” Ward, 409 U.S. at 60, 93 S.Ct. at 83, quoting Tumey, 273 U.S. at 532, 47 S.Ct. at 444.

The complaint against the respondent contains no evidence concerning any offense to this Nation’s fundamental charter.

2 . Lloyd is distinguishable from the case at bar. The parties in Lloyd agreed that stipulations be withdrawn if this Court did not accept the recommended sanction, which necessitated remand. The record in the instant proceeding contains no such agreement.