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

1993 OK 138, 863 P.2d 1211, 64 O.B.A.J. 3290, 1993 Okla. LEXIS 164, 1993 WL 431550
CourtSupreme Court of Oklahoma
DecidedOctober 26, 1993
DocketSCBD 3848
StatusPublished
Cited by42 cases

This text of 1993 OK 138 (State Ex Rel. Oklahoma Bar Ass'n v. Willis) 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. Willis, 1993 OK 138, 863 P.2d 1211, 64 O.B.A.J. 3290, 1993 Okla. LEXIS 164, 1993 WL 431550 (Okla. 1993).

Opinions

[1212]*1212HARGRAVE, Justice.

We entered an order of interim suspension pursuant to Rule 7.3 Rules Governing Disciplinary Proceedings, 5 O.S.1991 Ch. 1, App. 1A, on September 28, 1992, following receipt of the information, judgment and sentence reflecting Respondent’s conviction on June 5, 1992, of the crime of obtaining a Schedule II controlled substance by misrepresentation, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. Respondent pled guilty and was sentenced to probation for a term of three (3) years.

As a condition of his sentence, Respondent was ordered to comply with the special condition that he participate in a program approved by the U.S. Probation office for the treatment of narcotic addiction, drug dependency or alcohol dependency, which would include testing to determine if Respondent has reverted to the use of drugs or alcohol. The sentence further mandated that Respondent shall reside in and participate in a program of residential drug/alcohol treatment facility as instructed by the probation/parole officer, until discharged by the facility director.

By order of December 7, 1992 we directed that the matter be referred to the Professional Responsibility Tribunal for a hearing under Rule 7.4, R.G.D.P. and that the interim suspension remain in effect until further order. The hearing before the trial panel was held February 10, 1993 and the report of the trial panel was filed March 22, 1993. The trial panel, after having considered matters in mitigation, including Respondent's rehabilitation, recommended suspension from the practice of law until June 5, 1995, which would be three years from the date of his conviction, with all but the first six months suspended, the six months to be calculated from the date of the interim suspension.

Rule 7, Rules Governing Disciplinary Proceedings, sets out the procedure for summary disciplinary proceedings before the Supreme Court. Rule 7.1 provides that a lawyer who has been convicted in any jurisdiction of a crime that demonstrates such lawyer’s unfitness to practice of law, regardless of whether the conviction resulted from a plea of guilty, or nolo contendere or from a verdict after trial, shall be subject to discipline as set out therein. Rule 7.2 provides for transmission to the Supreme Court of the documents concerning the conviction and states that such documents shall constitute the charge and be conclusive evidence of the commission of the crime and shall suffice as the basis for discipline in accordance with the rules. Rule 7.4 provides that if the conviction becomes final without appeal, the Court shall order the lawyer to show cause why a final order of discipline should not be made, and the lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed upon him, submit a brief and any evidence tending to mitigate the severity of the discipline.

Respondent testified that in 1982 he was prescribed the pain-killer Demerol as part of his treatment for perirectal abscess and that about the same time he developed ulcers, and after stopping with Demerol, started taking Percocet, a different kind of pain medication. During that period he suffered some personal financial problems and family illness and testified that he became addicted to the pain-killers. Three witnesses testified for Respondent at the hearing and three witness testified through video deposition. These witnesses included the associate district judge and district attorney from Cherokee county and the city attorney for Tahlequah. Respondent's witnesses testified as to his excellent abilities in the practice of law and his high moral character and stated that they were surprised to learn of the conviction. All stated that they had seen no evidence of his drug addiction in Respondent’s practice of law, nor any evidence of its affecting his work. Without overgeneralizing, most witnesses drew a distinction, as to Respondent’s fitness to practice law, between actions of fraud or misrepresentation that harmed clients or third parties and Respondent’s actions, which they believed harmed only Respondent himself.

Respondent contends that because he has been rehabilitated and because his conviction does not, according to him, constitute [1213]*1213unfitness to practice law, he should not be suspended from the practice of law. He states that he was addicted to the drugs and consumed them himself. He denies that any fraud was involved and stated that he would use the term “subterfuge” rather than fraud, because fraud would involve some third person or embezzling money from trust funds or something similar. Respondent testified that he never let his consumption of drugs interfere with his practice of law and the witnesses called on Respondent’s behalf supported that.

Regardless of Respondent’s characterization of his actions, he pled guilty to and was convicted of a felony charge of obtaining controlled drugs by misrepresentation and the conviction stands as conclusive evidence of the commission of that crime. Rule 7.2, R.G.D.P. On cross-examination the general counsel questioned Respondent about the circumstances surrounding his obtaining of the prescriptions:

“Q: How many different pharmacists did you get the drugs from?
A: 30, 50, I don’t know.”

After later:

“Q: Would you agree then that during this period of time, that five-year period, you would get a hundred prescriptions a year?
A: I would just have to guess.
Q: All from the same doctor?
A: There were times when I would go to the hospital but I would have to jimmy up some medical problems.”

In his brief to this Court Respondent contends that he has presented sufficient evidence in mitigation, including: his rehabilitation, his effective representation of clients, that his dependency never caused harm to any client, that he was honest, truthful and reliable, his brilliance in a limited field and that his conviction did not affect his ability to practice law, to justify the Trial Panel’s recommendation. In his second proposition, he argues that conviction of obtaining a Schedule II narcotic by misrepresentation does not per se demonstrate his unfitness to practice law. Respondent relies heavily on State ex rel. Oklahoma Bar Association v. Armstrong, 791 P.2d 815 (Okla.1990), wherein we stated that the scope of the inquiry include the particular lawyer’s unfitness to practice law and not merely the type of crime of which the lawyer stands convicted.

Respondent contends that his conviction for substance abuse is similar in scope to alcoholism. Respondent states that he does not wish to diminish the significance of his “reprehensible behavior” and recognizes this Court’s role in disciplinary proceedings in protecting the public and purification of the bar. He states that this court has long recognized that in certain cases the conviction is punishment enough. Respondent recognizes this Court’s duty to protect the public, but does not feel that the public needs protection from him because his acts occurred over three years ago and he has been rehabilitated for over two years and had been competently practicing law until the time of his suspension.

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State Ex Rel. Oklahoma Bar Ass'n v. Willis
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Cite This Page — Counsel Stack

Bluebook (online)
1993 OK 138, 863 P.2d 1211, 64 O.B.A.J. 3290, 1993 Okla. LEXIS 164, 1993 WL 431550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-assn-v-willis-okla-1993.