STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY

2014 OK 113
CourtSupreme Court of Oklahoma
DecidedDecember 16, 2014
StatusPublished

This text of 2014 OK 113 (STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY) 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 ASSOCIATION v. WINTORY, 2014 OK 113 (Okla. 2014).

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OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY
2014 OK 113
Case Number: SCBD-6119
Decided: 12/16/2014
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA


Cite as: 2014 OK 113, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.


State of Oklahoma ex rel. Oklahoma Bar Association, Petitioner,
v.
Richard M. Wintory, Respondent.

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

¶0 Complainant, Oklahoma Bar Association (Bar Association) brought a disciplinary proceeding pursuant to Rule 7.7, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A, following notification that the respondent, Richard M. Wintory (attorney/Wintory), had been suspended in Arizona for ninety (90) days and ordered to pay costs. The agreed discipline imposed arose from Wintory's communication, as a prosecutorial officer, with a confidential intermediary for the defense in a murder trial and his lack of candor concerning the extent, content, and tenor of those discussions. The attorney did not notify timely the General Counsel of the discipline imposed. Although the attorney was given notice of the instant proceedings, Wintory has not responded or challenged the imposition of discipline by this Court. Therefore, pursuant to Rule 7, the documents provided by the Arizona Court constitute the charge and prima facia evidence that the attorney committed the acts described therein. The uncontroverted evidence demonstrates that the respondent: on multiple occasions had contact with an individual recommended as an aide to the defense in a capital murder case; misled the defense, his supervisor, his co-counsel, and the trial court concerning the extent of his contact with the individual; "conveniently" remembered there had been a witness to the one reported conversation only after affidavits were filed with the trial court which did not mention this development; and did not timely report the discipline imposed in the reciprocal jurisdiction to this Court. Upon de novo review, we hold that, under the facts presented along with discipline imposed for similar acts both in Oklahoma and in other jurisdictions, the attorney's misconduct warrants a suspension of two years and one day from the practice of law in the State of Oklahoma.

RESPONDENT SUSPENDED FOR TWO YEARS AND ONE DAY
FROM THE EFFECTIVE DATE OF THIS OPINION.

WATT, J.:

¶1 The attorney is before this Court for disciplinary proceedings arising under Rule 7.2, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A governing imposition of reciprocal discipline for professional misconduct occurring in another state.1 The State Bar of Arizona and Wintory entered an agreement for discipline by consent by which the attorney was suspended from the practice of law for ninety (90) days and ordered to pay the costs of the proceeding.

¶2 There is no question that the attorney misled the defense, his co-counsel, his supervisor in the Arizona Attorney General's Office, and the trial court when he failed to reveal multiple conversations with a confidential intermediary appointed for the purpose of aiding defense counsel in uncovering evidence of mitigation. Those representations were not merely oral but extended to the filing of false and misleading affidavits in the trial court and causing his supervisor and co-worker to do the same with the end result being the filing of a motion to disqualify the Attorney General's office in its entirety from participating in the capital murder prosecution. Finally, Wintory did not timely notify the Bar Association the discipline imposed by the Arizona Supreme Court.

¶3 Upon de novo review,2 we determine that the respondent's misconduct warrants a suspension of two years and one day from the practice of law in the State of Oklahoma. In considering the appropriate discipline, this Court considers the facts presented along with discipline imposed for similar acts3 both in Oklahoma and in other jurisdictions.

UNCONTROVERTED FACTS AND PROCEDURE

¶4 The facts surrounding the Arizona discipline arose from a murder trial in which the respondent, an Assistant Attorney General, was acting as prosecutor. The trial judge ordered the appointment of a confidential intermediary for the purpose of uncovering evidence that might serve as mitigation of any sentence imposed. Following a disagreement between the confidential intermediary and the defense attorney, the intermediary contacted Wintory. After becoming aware of what eventually revealed multiple conversations between Wintory and the confidential intermediary, the defense filed a motion to recuse both Wintory, an Assistant Attorney General, and the Attorney General's Office from prosecuting the case.

¶5 Wintory was not candid with his co-counsel in the Attorney General's Office charged with responding to the motion to recuse. Believing that the only pertinent issue should be whether any confidential information was exchanged, the respondent led his co-counsel to believe that only one conversation had taken place when there had been multiple conversations, some of which were of considerable length, i.e. approximately twenty (20) minutes.

¶6 Initially, Wintory did not recall that there had been a witness to the first telephone conversation. On September 22, 2011, a joint response was filed with the trial court, signed by Wintory and his co-counsel, providing that only one conversation had taken place. The next day, Wintory met with his supervisor. Wintory prepared and signed an affidavit in which he did not mention that there had been multiple conversations with the confidential intermediary.

¶7 On October 3, 2011, Wintory "recalled" that there actually had been a witness, his paralegal, to the one conversation he revealed to the trial court and to his colleagues. This resulted in the paralegal, the alleged witness, preparing an affidavit averring to the same. Evidently, the paralegal believed that she witnessed the conversation because Wintory specifically asked that she do so.

¶8 Wintory was removed from the criminal case by his supervisor after the supervisor and the co-counsel realized it was necessary for them to advise the trial court that their fact presentations had not been accurate because of inadequate disclosures from the respondent.

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Bluebook (online)
2014 OK 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-bar-association-v-wintory-okla-2014.