In Matter of Application for Reinstatement of Stewart, 2009 OK 29 (Okla. 5/12/2009)

• Decision Date: 12 May 2009
• Docket Number: No. SCBD-5444.,SCBD-5444.
• Citation: 2009 OK 29
• Parties: IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS.
• Court: Oklahoma Supreme Court

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2009 OK 29

IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS.

No. SCBD-5444.

Supreme Court of Oklahoma.

May 12, 2009.

Petition for Reinstatement

¶ 0 The petitioner, Jami Lynn Stewart a/k/a Jami Watts (Stewart/attorney), was suspended from the practice of law for a period of fours years effective September 20, 2002. The suspension arose from the attorney's criminal conviction in the United States District Court for the Western District of Oklahoma for failure to file her 1996 federal income tax return and for contempt for wilfully failing to disclose her fees in a bankruptcy proceeding. The attorney's actions also led to suspensions from the practice of law in the United States Bankruptcy Court for the Western District of Oklahoma and in the United States Bankruptcy Court for the Eastern District of Texas. The attorney sought reinstatement which the respondent, Oklahoma Bar Association (Bar Association), opposed. The trial panel of the Professional Responsibility Tribunal found that Stewart had failed to meet the burden of proof in establishing that her future conduct would conform to the high standards of a member of the Bar Association and to present stronger proof than an individual seeking first time admission. Upon de novo review, we determine that reinstatement should be denied and impose $1,015.53 in costs.

PETITION FOR REINSTATEMENT IS DENIED; PETITIONER IS ORDERED TO PAY COSTS.

Mack K. Martin, Martin Law Office, Oklahoma City, Oklahoma, for petitioner.

Lorraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for respondent.

WATT, J.:

¶ 1 On February 11, 2003, we suspended the attorney for four years retroactive to September 20, 2002, the date an order of interim suspension issued pursuant to Stewart's conviction for failure to file her 1996 federal income tax return and for contempt for wilfully failing to disclose her fees in a bankruptcy proceeding. When we decided State ex rel. Oklahoma Bar Association v. Stewart (Stewart I), 2003 OK 13, 71 P.3d 1, the attorney was serving a four-year probationary sentence. We deemed the extended suspension appropriate considering: 1) Stewart's having entered into agreed suspensions in other jurisdictions, one for three years and the other for five years; and 2) the impact on the judicial system resulting from allowing an attorney to engage in the practice of law during a criminal sentence.

¶ 2 Rather than satisfying tax assessments which the attorney testified totaled between $200,000.00 and $500,000.00 with penalty and interest,¹ Stewart chose to discharge in bankruptcy her tax liability. The attorney's decision to do so makes relevant cases in which this Court has refused reinstatement based, in part, on the existence of unpaid tax obligations.² In consideration of our jurisprudence and upon a de novo review,³ we determine that the attorney did not present clear and convincing evidence that, if readmitted, her conduct would conform to the high standards required of a member of the Bar Association.⁴ Therefore, we deny reinstatement and impose the costs of the proceeding in the amount of $1,105.53.⁵

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Stewart was admitted to the practice of law in 1984. Until we entered an interim suspension⁶ on September 20, 2002, the attorney had an unmarred disciplinary history. The suspension arose from the attorney's criminal conviction on May 21, 2002 in the United States District Court for the Western District of Oklahoma for failure to file her 1996 federal income tax return⁷ and for contempt for wilfully failing to disclose her fees in a bankruptcy proceeding. The attorney's actions also led to suspensions from the practice of law in the United States Bankruptcy Court for the Western District of Oklahoma and in the United States Bankruptcy Court for the Eastern District of Texas.

¶ 4 Stewart pled guilty to charges of income tax evasion and to contempt charges related to failing to disclose fees collected in numerous bankruptcy proceedings. She was placed on probation for four years, ordered confined in her home for 180 days, and directed to complete 104 hours of community service. Having met the conditions of her probation, Stewart was successful in having her probation terminated on October 1, 2004, approximately 16 months earlier than originally scheduled.

¶ 5 On February 11, 2003, we suspended the attorney for four years retroactive to the date of the interim suspension order.⁸ At that time, Stewart had made payments in restitution to her bankruptcy clients totaling approximately $ 30,000.00 and had entered an agreement with the Internal Revenue Service to pay a tax debt of approximately $20,000.00 for the 1996 and 1997 tax years.

¶ 6 After completing her home confinement, Stewart worked preparing marketing materials for gas exploration projects until she was injured in a serious car accident. Following her recovery, the attorney became qualified to conduct domestic and other civil mediations, often doing so on a volunteer basis. She also took writing classes, authored a novel, and was employed as a human resources manager for a manufacturing facility. When she petitioned for reinstatement, Stewart was unemployed.

¶ 7 The attorney originally filed a petition for reinstatement on January 5, 2007, less than a month after having filed a petition in bankruptcy seeking to discharge her tax liability. When Stewart was advised by the General Counsel's Office of the Bar Association that other attorneys who had not satisfied tax obligations had been denied reinstatement, she withdrew the application.⁹

¶ 8 On March 19, 2007, Stewart received her discharge in bankruptcy. She filed a second petition for reinstatement on September 8, 2008 pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. The hearing on reinstatement was held before the trial panel on December 5, 2008. The trial panel issued its report on January 28, 2009 determining that Stewart had not met the burden of proof for reinstatement and recommending that reinstatement be denied and that costs be imposed. Three weeks earlier, the Bar Association filed its application for the assessment of costs in the amount of $1,015.53. The order setting a briefing schedule issued on February 26, 2009. The briefing cycle was completed with the filing of the attorney's reply brief on March 11, 2009.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 9 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of practitioners of the law. The duty is vested solely in this department of government.¹⁰ Our determinations are made de novo.¹¹ Although given great weight,¹² neither the finding of facts of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.¹³ We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.¹⁴ A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.¹⁵ Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facia showing that the attorney has not engaged in improper conduct during the suspension period.¹⁶

¶ 10 A suspension from the practice of law for a period of two years and one day is tantamount to disbarment in that the suspended lawyer must follow the same procedures for readmittance as would a disbarred counterpart.¹⁷ Before an attorney who has been disciplined for more than two years may be readmitted to the practice of law, it must be established that the lawyer's conduct will conform to the high standards required of a member of the Oklahoma Bar. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied.¹⁸ The applicant must present stronger proof of qualifications than one seeking first time admission.¹⁹

¶ 11 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A requires the trial panel to make specific findings regarding whether: 1) the petitioner possesses the good moral character which would entitle her to be admitted to the Bar Association; 2) the petitioner has engaged in the unauthorized practice of law during the period of suspension; and 3) the petitioner possesses the competency and learning in the law required for admission to the practice of law in the State of Oklahoma. In addition, this Court considers the following eight factors in making a reinstatement decision: 1) the applicant's present moral fitness; 2) demonstrated consciousness of the conduct's wrongfulness and the disrepute it has brought upon the legal profession; 3) the extent of rehabilitation; 4) the original misconduct's seriousness; 5) conduct after resignation; 6) time elapsed since suspension; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal competence.²⁰ Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.²¹

¶ 12 a. The attorney has not demonstrated the clear and convincing evidence necessary for her readmittance to the practice of law in Oklahoma.

¶ 13 Stewart asserts that she is truly remorseful for the events leading up to her suspension. She contends that: the conduct for which she was disciplined occurred during an aberrant period in her life; since her suspension, she has demonstrated both true remorse for the repercussions of her actions and her worthiness for reinstatement; and her lack of ability to pay her back taxes does not demonstrate an unwillingness to satisfy the debt but, rather, an inability to do so. The Bar...