In re Golden

• Decision Date: 19 November 2013
• Docket Number: No. SCBD–5990.,SCBD–5990.
• Citation: 315 P.3d 377
• Parties: In the Matter of the REINSTATEMENT OF James E. GOLDEN, Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

315 P.3d 377

In the Matter of the REINSTATEMENT OF James E. GOLDEN, Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

No. SCBD–5990.

Supreme Court of Oklahoma.

Nov. 19, 2013.

Application for Reinstatement.
¶ 0 After the applicant, James E. Golden, Jr. (Golden), entered a negotiated plea to the federal charge of misprision of a felony, this

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Court disbarred Golden, and struck his name from the Roll of Attorneys effective December 7, 2007. The action occurred due to Golden's having: violated the rules governing a lawyer's conduct; engaged in egregious conduct bringing about great disrepute to the legal profession; and actively engaged in a scheme resulting in great harm to many individuals and to the health care system. Golden filed a petition for reinstatement on April 10, 2013 to the respondent, Oklahoma Bar Association (Bar Association), pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A. The Bar Association opposed reinstatement. Although the trial panel of the Professional Responsibility Tribunal found that Golden had not engaged in the unauthorized practice of law during his suspension and had offered credible evidence of his competency and learning of the law, it determined that the applicant did not present evidence sufficient to demonstrate his good moral character or to affirmatively establish that, if readmitted, his conduct would conform to the high standards required of a member of the Bar Association. The trial panel recommended that reinstatement be denied and that costs be assessed. Upon de novo review, we determine that reinstatement should be denied and impose $2,129.26 in costs.
PETITION FOR REINSTATEMENT IS DENIED; APPLICANT IS ORDERED TO PAY COSTS.

Thomas C. Riesen, Crabb, Ferguson & Riesen, Oklahoma City, Oklahoma, for applicant.

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for respondent.

WATT, J.

¶ 1 We imposed the most severe of disciplines on the applicant effective December 3, 2007, disbarring ¹ Golden and removing his name from the Roll of Attorneys. These sanctions arose from Golden's having pled guilty to the federal felony charge of misprision.² His actions resulted in significant economic harm to many individuals and to the health care system as a whole, embarrassment to the legal profession and to this Court, and an undermining of public confidence in the Bar Association and its members. ³

¶ 2 Upon de novo review,⁴ we determine that the applicant did not present clear and convincing evidence ⁵ necessary for his readmittance to the practice of law in Oklahoma and that he should be responsible for costs of the proceeding in the amount of $2,129.26.⁶

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Golden most certainly did not demonstrate stronger proof of qualification than one seeking admission for the first time.⁷ The evidence concerning the current state of the applicant's good moral character did not rise to the level of clear and convincing and could in no way be considered as establishing stronger evidence than would have been required of one seeking first time admission. Furthermore, multiple other factors militate against reinstatement, including: the fact that at the same time Golden presented himself as among the most ethical in the profession, the applicant engaged in activities he knew to amount to misconduct; a lack of convincing remorse; the failure to make concerted efforts to repay monetary penalties; and the swiftness with which he sought reinstatement following the period of disbarment.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 The applicant was admitted to the practice of law on May 8, 1981. On April 22, 2008, we disbarred Golden for his active participation in a health care fraud cover-up and a scheme to defraud his client's employees of their pension funds. The applicant pled guilty to the crime of misprision of a felony, receiving a three-year probated sentence, including five months of supervised curfew, and an order to pay restitution in the amount of $5,719.340.22. It is unnecessary to repeat the detailed facts of the proceeding as they appear in State ex rel. Oklahoma Bar Ass'n v. Golden, 2008 OK 39, 201 P.3d 862.

¶ 4 Golden's disbarment ran from December 3, 2007, the date of this Court's order of immediate interim suspension. On April 10, 2013, approximately five months after the running of the five-year disability to practice law, Golden filed for reinstatement pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A. The hearing on reinstatement was held before the trial panel on June 27, 2013. The trial panel issued its report on July 25th determining that Golden had not met his burden of proof for reinstatement, recommending that this Court deny reinstatement and impose costs. On July 29, 2013, the Bar Association filed an application to assess costs in the amount of $2,129.26. The order setting a briefing schedule issued on July 31, 2013. The briefing cycle was completed on September 23, 2013 with the applicant's waiver of the filing of a reply brief.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 5 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.⁸ Our determinations are made de novo.⁹ Although given great weight, ¹⁰ neither the finding of facts of the

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trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.¹¹ We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence. ¹² A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.¹³ Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facie showing that the attorney has not engaged in improper conduct during the suspension period.¹⁴

¶ 6 Before an attorney who has been disbarred may be readmitted to the practice of law, it must be established that the applicant'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.¹⁵ The applicant must present stronger proof of qualifications than one seeking first time admission.¹⁶

¶ 7 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A requires the trial panel to make specific findings regarding whether: 1) the applicant possesses the good moral character which would entitle him to be admitted to the Bar Association; 2) the applicant has engaged in the unauthorized practice of law during the period of suspension; and 3) the applicant 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 the resignation; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal competence.¹⁷ Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors. ¹⁸

¶ 8 a. The applicant has not demonstrated the clear and convincing evidence necessary for his readmittance to the practice of law in Oklahoma.

¶ 9 Golden relies upon testimony elicited from his witnesses for the proposition that he met the standard of clear and convincing evidence related to his: good moral character, the same being higher now than at disbarment; lack of unauthorized practice of law; present competency in the law; and remorse. The trial panel found that the applicant: satisfied the requirements of Rule 11.1(a), Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A; ¹⁹ had

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not required client security funds to be expended; had not engaged in the unauthorized practice of law during the disbarment period, and had maintained his competency and learning of the law. Nevertheless, the trial panel noted its most serious concern involved the area of good moral character and rehabilitation stating that “(t)here was no testimony as to any change in Applicant's behavior which would give rise to a feeling of confidence that under the same circumstances Applicant would behave differently.” It determined that Golden had not offered proof sufficient to overcome the former adverse judgment of this Court or that would establish, if readmitted, the applicant would conform to the high standards required of a member of the Bar Association. Both the trial panel and the Bar Association recommend that we deny reinstatement and impose costs of the proceeding. We agree with these recommendations.

¶ 10 1) Golden presented no clear and convincing evidence demonstrating that he currently maintains the good moral character expected of a practitioner of the law or that the state of his character would exceed that of an applicant seeking first time admission.

¶ 11 The applicant presented eight witnesses opining that they considered Golden to be a person of good moral character. One based his opinion primarily on the applicant's role as a father ²⁰ while others grounded theirs on the fact that they believed he had the same moral characteristics when he was involved in the scheme resulting in his plea agreement.²¹ Several of the witnesses maintained little to no contact with Golden since he was disbarred.²²...