In re Arnett

• Decision Date: 08 November 2022
• Docket Number: SCBD 7235
• Citation: 520 P.3d 840
• Parties: In the MATTER OF the REINSTATEMENT OF: Emma Barlie ARNETT, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys
• Court: Oklahoma Supreme Court

520 P.3d 840

In the MATTER OF the REINSTATEMENT OF: Emma Barlie ARNETT, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys

SCBD 7235

Supreme Court of Oklahoma.

Filed November 8, 2022

Sheila J. Naifeh, Tulsa, Oklahoma, for Petitioner.

Gina Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent.

Winchester, J.

¶1 Petitioner Emma Barlie Arnett (Arnett) seeks reinstatement as a member of the Oklahoma Bar Association (OBA) pursuant to Rule 11, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2021 ch. 1, app. 1-A. We hold the record shows by clear and convincing evidence that Arnett has met the prerequisites for reinstatement.

FACTS AND PROCEDURAL HISTORY

¶2 Arnett graduated from the University of Tulsa College of Law in May 2003, and she was admitted to the OBA on September 30, 2003. She began working in private practice before becoming a lawyer for the Oklahoma Department of Human Services (DHS).

¶3 On August 27, 2017, Arnett was at a party where she consumed several glasses of wine. While driving home that night, Arnett struck Christopher Brown (Brown)--a pedestrian in the roadway--with her vehicle. Emergency Medical Technicians transported Brown to the hospital, where he died several hours later. Arnett was taken to the hospital for a blood alcohol test, which showed her blood alcohol content was 0.142.

¶4 On December 1, 2017, Arnett was charged with the felony crime of Manslaughter in the First Degree, to which she pled guilty. On July 23, 2018, the district court sentenced Arnett to four years in custody and eight years suspended.

¶5 On September 18, 2018, this Court immediately suspended Arnett from the practice of law as the result of her guilty plea to the criminal charges. On October 7, 2019, this Court entered a final order of discipline, suspending Arnett from the practice of law for two years and one day or upon her release from incarceration, whichever is longer. The Court also ordered Arnett to pay costs in the amount of $4,077.65. See State ex rel. Okla. Bar Ass'n v. Arnett , 2019 OK 63, 451 P.3d 160. Arnett complied with Rule 9.1 ¹ of the RGDP by filing her affidavit on September 27, 2018.

¶6 On December 13, 2021, Arnett was released from the Dr. Eddie Warrior Correctional Center. She remains on probation. However, Arnett's probation officer terminated her "active probation" and she does not have to meet monthly with her officer.

¶7 On March 24, 2022, Arnett filed a Petition for Reinstatement with this Court. On June 3, 2022, the Professional Responsibility Tribunal (PRT) held a hearing.² Arnett and six character witnesses testified. The OBA presented testimony from its investigator, Leslie Arnold. The PRT recommended that Arnett should be reinstated as a member of the OBA. The OBA did not oppose the PRT's recommendation for reinstatement.

STANDARD OF REVIEW

¶8 This Court possesses a nondelegable, constitutional obligation to regulate the practice of law as well as the ethics, licensure, and discipline of Oklahoma practitioners. In re Reinstatement of Rickey , 2019 OK 36, ¶ 4, 442 P.3d 571, 574 ; In re Reinstatement of Kerr , 2015 OK 9, ¶ 6, 345 P.3d 1118, 1121. We give great weight to the findings of the trial panel, but its findings are not binding on this Court. Rickey , 2019 OK 36, ¶ 4, 442 P.3d at 574. We review the record de novo . Id.

DISCUSSION

¶9 We analyze Arnett's request for reinstatement in relation to four factors: (1) the present moral fitness of the petitioner; (2) her engagement in any unauthorized practice of law in Oklahoma; (3) her competency to practice law; and (4) her compliance with other requirements for reinstatement. See id. ; In re Reinstatement of Christopher , 2014 OK 73, ¶ 5, 330 P.3d 1221, 1223 ; see also Rule 11.5, RGDP.³ In looking at these factors, we have considered (1) the petitioner's demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (2) the extent of the petitioner's rehabilitation; (3) the seriousness of the original misconduct; (4) the petitioner's conduct subsequent to discipline; (5) the time which has elapsed since the original discipline; and (6) the petitioner's character, maturity, and experience at the time of disbarment. In re Reinstatement of Kamins , 1988 OK 32, ¶ 20, 752 P.2d 1125, 1130.

A. Moral Fitness

¶10 We first consider Arnett's current moral fitness. Any petitioner seeking reinstatement bears the burden of proving by clear and convincing evidence that, if reinstated, that the petitioner's conduct will conform to the high standards required of members of the bar. Rule 11.4, RGDP.⁴ The petitioner must present stronger proof of qualifications than those seeking admission for the first time. Id.

¶11 Arnett has never faced disciplinary action by the OBA. She practiced for approximately fifteen years after being admitted into the OBA and maintained good standing with the OBA until her suspension in 2018. Prior to the incident involving Brown, Arnett volunteered by fostering dogs, participating in the Ask A Lawyer program that is part of the OBA's Law Day celebrations, and coaching a mock trial team.

¶12 The testimony presented at the PRT hearing demonstrated Arnett possesses the requisite moral character to return to practice. Arnett presented testimony from six witnesses at the PRT hearing: Paul Zardus, her husband; Skylar Collins, her cellmate in prison; Sara Layne, her sister; Lora Howard, her current supervisor at the Tulsa County Public Defender's office; and Scott Goode, a Tulsa attorney that participated in Lawyers Helping Lawyers (LHL) and AA meetings with Arnett. They testified to Arnett's trustworthiness and general character. The OBA's investigator testified that he did not find any concerns regarding Arnett's moral fitness arising from his investigation of Arnett.

¶13 After the incident involving Brown, Arnett contacted LHL and was assigned a mentor with whom she had frequent contact prior to her incarceration. She also attended an AA group daily. Arnett underwent an alcohol assessment, and the assessment did not result in any kind of recommendation for treatment. Arnett testified at the hearing that she is not an alcoholic. She attended AA meetings for support and to learn about the concept of acceptance.

¶14 Arnett also rehabilitated herself through the volunteer work she did during her incarceration and has continued to do since her release. Arnett has helped hundreds of women by providing resume writing skills and assisting with career coaching.

¶15 The testimony presented at the PRT hearing also demonstrated how remorseful Arnett was for the death of Brown. Arnett and her family members testified that Arnett took responsibility for the incident. Specifically, Arnett's husband testified that Arnett understood why she was incarcerated and was "absolutely" remorseful. Arnett's sister testified Arnett pled guilty to the criminal charges against her to avoid bringing any additional embarrassment to the legal system and having anyone endure a trial. Arnett also demonstrated an awareness of the seriousness of her original conduct and understood that the harm she caused was profound. Arnett wrote letters to both Brown's father and brother and then spoke to Brown's father, expressing remorse for her conduct.

¶16 The only question as to Arnett's moral character arises from her continued use of alcohol. Arnett admitted that she has on a couple of occasions consumed alcohol since her release from prison, which is a violation of the terms of her probation. Arnett testified that she understands that she cannot drink alcohol and testified that she would not do so again. Arnett continues to attend AA meetings and is involved in LHL. Even with this concern, the OBA does not contest Arnett's reinstatement.

¶17 We find by clear and convincing evidence that despite Arnett's alcohol use since her release from incarceration, Arnett possesses the moral fitness necessary for reinstatement.

B. Unauthorized Practice of Law

¶18 We next consider whether Arnett engaged in any unauthorized practice of law. Rule 11.1(a)(2) of the RGDP requires that a petitioner seeking reinstatement submit an affidavit from each court clerk of the several counties in which the petitioner resided after suspension, establishing that the petitioner has not practiced law in their respective courts during that period. See Rule 11.1(a), RGDP; see also, e.g. , Rickey , 2019 OK 36, ¶ 12, 442 P.3d at 576.

¶19 Arnett submitted affidavits from the court clerks of Tulsa County and Muskogee County, which both state that a search of their respective court records revealed no evidence that Arnett had practiced law in those counties since her suspension. OBA Investigator Arnold researched both the district and federal courts and found no evidence that Arnett had engaged in the unauthorized practice of law in Oklahoma since her suspension.

¶20 Arnett testified that she has not engaged in the practice of law since her suspension. Testimony from her cellmate in prison and her current supervisor also confirmed that Arnett did not engage in the practice of law while incarcerated or working at her current employment with the Tulsa County Public Defender's office.

¶21 We find by clear and convincing evidence that Arnett has not engaged in the unauthorized practice of law in Oklahoma.

C. Professional Competence

¶22 We next consider Arnett's professional competence. A petitioner seeking reinstatement is required to demonstrate sufficient competency and learning in the law. Rule 11.5(c), RGDP. ¶23 Arnett has been suspended from the practice of law since September 2018. In the four years since her suspension, Arnett kept herself informed as to the current developments in the law by reading the Oklahoma Bar Journal while incarcerated and reading case law since being released. Arnett was exempt from taking Mandatory Continuing Legal Education (MCLE) courses for the years 2020 and 2021.

¶24 Since ...