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

• Decision Date: 21 March 1995
• Docket Number: No. 3962,3962
• Citation: 1995 OK 25,895 P.2d 707
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Darril Lonnie HOLDEN, Respondent. SCBD
• Court: Oklahoma Supreme Court

Page 707

895 P.2d 707

1995 OK 25

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Darril Lonnie HOLDEN, Respondent.

SCBD No. 3962.

Supreme Court of Oklahoma.

March 21, 1995.

Bar Discipline Proceeding.

The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Darril Lonnie Holden (Holden/attorney), with a single count of misconduct. The trial panel found that the attorney advised his client to remove a child from Oklahoma in violation of a court order. The trial panel recommended an eighteen month suspension and the imposition of costs. We find that the Bar Association established by clear and convincing evidence that Holden advised his client to remove a child from Oklahoma in violation of a court order. The conduct warrants a one year suspension and the payment of costs in the amount of $5,333.39.

RESPONDENT SUSPENDED; COSTS IMPOSED.

John E. Douglas, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

William C. Devinney and David B. Autry, Oklahoma City, for respondent.

KAUGER, Vice Chief Justice:

The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Darril Lonnie Holden (Holden/attorney), with a single count of misconduct--advising his client, Steven D. DeVore (DeVore/father), to remove his minor child from Oklahoma in violation of a court order. We find that the Bar Association established by clear and convincing evidence ¹ that Holden advised his client to remove a child from Oklahoma in violation of a court order. ² The conduct warrants a one year suspension and the payment of costs in the amount of $5,333.39. ³

FACTS

In 1988, DeVore, a 2nd Class Petty Officer in the United States Navy stationed in Washington, divorced Tamra Senecal (Senecal/ex-wife). He was awarded custody of two children--a son (K.F.D.) from the marriage and Senecal's son (C.L.K.) from a prior marriage. During the summer of 1992, both children were allowed to come to Oklahoma for visitation with Senecal. It was agreed that Senecal would retain physical custody of C.L.K., her child from the prior marriage. However, K.F.D. was to return to Washington with his father. When DeVore arrived in Oklahoma on August 19th to pick up his son, he was served with a petition for custody covering both children and an ex parte emergency order giving temporary custody of the children to Senecal. ⁴ The order set a hearing for September 2nd. Realizing that he needed legal representation, DeVore called a legal hot line; and he was given Holden's number. He met with Holden the same day.

Because he was scheduled to return to his ship no later than August 29th, DeVore explained to Holden that it was imperative to resolve the custody issue as soon as possible. Holden drafted and filed a writ of habeas corpus in an attempt to resolve the custody issue in a timely manner. However, both DeVore and his wife testified that during their first meeting that Holden advised them that their best course of action would be to take K.F.D. and return to Washington. ⁵

The show cause hearing on the ex parte order and the writ of habeas corpus held on August 28, 1992, concluded about noon. The trial judge left temporary custody with Senecal. After the hearing, at his client's request Holden obtained permission for him to have lunch with his son, K.F.D.. C.L.K. was included in the luncheon only after the child asked if he could go. Although Holden maintains that he said nothing to the DeVore's which they could have interpreted as advice to leave the state with K.F.D., the couple testified that Holden advised them to use the lunch hour to go to the airport, and to put K.F.D. on a plane for Washington. ⁶

Immediately after the hearing, Devore took his family to the airport and obtained tickets for everyone except himself and C.L.K. to fly to Dallas. After he put his family, including K.F.D., on the plane, Devore took C.L.K. home. He then drove to Dallas to meet his wife and children. They traveled back to Washington.

When DeVore reached his duty station, he contacted the Naval Judge Advocate who advised him to seek independent counsel. Learning that he had been cited for contempt for violating the Oklahoma court order and that criminal charges had been filed for child stealing, DeVore contacted Jeffrey Cox (Cox). Cox is an attorney practicing in Port Orchard, Washington. DeVore told Cox that he had removed his son from Oklahoma on the advice of his attorney. On September 8, 1992, Cox contacted Holden to determine the status of the domestic relations action and to confirm whether Holden had advised DeVore to remove the child from Oklahoma. During the telephone conversation, Holden admitted to Cox that he advised DeVore to fly K.F.D. back to Washington. ⁷

Cox obtained counsel in Oklahoma to represent Devore on the child custody matter and on the felony count of child stealing. Carolyn Thompson (Thompson) was retained to handle the custody matter, and Doug Parr (Parr) was hired to handle the criminal charges. The contempt action was dismissed. DeVore was given a two-year probationary period on the felony charges arising from the removal of his son to Washington. Additionally, K.F.D. was removed from the DeVore's home by Washington authorities for three months while the sexual abuse charges were being investigated in Oklahoma.

On October 1, 1992, Thompson filed a complaint with the Bar Association on behalf of DeVore. The trial panel heard evidence on May 11, 1994, and on June 1, 1994. It issued its order with recommended findings of fact, conclusions of law and proposed discipline on July 6, 1994. It found that although the evidence was controverted, clear and convincing evidence existed to support a finding that Holden advised, or at least led DeVore to believe, that violating the Oklahoma custody order would be without serious consequences if the child were removed from Oklahoma. The trial panel recommended an eighteen month suspension and the imposition of costs.

THE FINDING THAT THE ATTORNEY ADVISED HIS CLIENT TO REMOVE A CHILD FROM OKLAHOMA IN VIOLATION OF A COURT ORDER IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. THE CONDUCT WARRANTS A ONE YEAR SUSPENSION AND THE IMPOSITION OF COSTS.

Holden denies saying anything to DeVore which could have been interpreted as advice to leave Oklahoma with his son in violation of the district court's order. He insists that the trial panel's findings are not supported by clear and convincing evidence. Holden contends that if the Court should find the charges to be substantiated that a lesser discipline should be imposed. However, he does not state what an appropriate discipline would be. The Bar Association supports the recommended discipline--an eighteen month suspension and the imposition of costs.

Before this Court may impose discipline upon an attorney, the charges must be established by clear and convincing evidence. ⁸ In disciplinary matters, this tribunal exercises exclusive original jurisdiction. ⁹ Our review is de novo in considering the record presented as well as recommendations for discipline. ¹⁰ The ultimate decision rests with this Court. Neither the findings of fact of the trial panel nor its view of the weight of the evidence or credibility of the witnesses bind us. ¹¹

This is not a situation in which the sole testimony against the attorney is presented by a dissatisfied client. Instead, the condemning evidence was presented through an out-of-state attorney who confirmed that Holden admitted to telling DeVore to leave the jurisdiction of the Oklahoma court with his son. Cox, through his testimony before the trial panel, in his affidavit submitted with the complaint, and by the presentation of his notes during the hearing, established the facts of his conversation with Holden. ¹² The evidence is clear and convincing that Holden advised DeVore to leave Oklahoma and to return to Washington with his son. The conduct complained of is a violation of Rule 8.4(a)(b)(c) and (d) and Rule 1.2(c), Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A. ¹³

Our responsibility in a disciplinary proceeding is not to punish but to inquire into and to gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession. ¹⁴ Discipline is imposed to maintain these goals rather than as punishment for the lawyer's misconduct. ¹⁵ When determining discipline for attorney misconduct, the Court compares circumstances with those of previous disciplinary proceedings, examines the attorney's previous record of professional behavior and determines how best to serve the welfare of the public and the integrity of the bar. ¹⁶

The attorney in State ex rel. Oklahoma Bar Ass'n v. Caldwell, 880 P.2d 349, 354 (Okla.1994) was charged with two counts of misconduct. The first count involved a garnishment proceeding based upon an order entered in violation of an agreement with the opposing party and his attorney. The attorney also misrepresented the facts surrounding this issue to the Bar Association. The second count is similar to the one presented here.

In Caldwell, the attorney was representing clients in an attempted adoption. Mrs. R. originally agreed to voluntarily place her children for adoption with the Department of Human Services (Human Services). She recanted upon the agreement, but eventually appeared before the district court and executed a written consent for adoption. The clients took custody of the children and traveled with them to Mississippi. They removed the children on the advice of Chambers that: 1) it was legally permissible to do so; 2) the natural father had no legal rights in the matter; and 3) the father was not entitled to notice of the adoption. The attorney did not advise the clients that it was necessary to file a petition for adoption in the county of their residence. The attorney eventually filed adoption proceedings in Tulsa...