In re Kerr

• Decision Date: 03 March 2015
• Docket Number: No. SCBD–6158.,SCBD–6158.
• Citation: 2015 OK 9,345 P.3d 1118
• Parties: In the Matter of the REINSTATEMENT OF Robert Samuel KERR, IV to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

345 P.3d 1118

2015 OK 9

In the Matter of the REINSTATEMENT OF Robert Samuel KERR, IV to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

No. SCBD–6158.

Supreme Court of Oklahoma.

March 3, 2015.

As Corrected March 24, 2015.

Rehearing Dismissed March 24, 2015.

John W. Coyle, III, Coyle Law Firm, Oklahoma City, Oklahoma, for petitioner.

Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for respondent.

Opinion

WATT, J.:

¶ 1 Robert Samuel Kerr, IV (“Kerr”) entered an Alford plea to a misdemeanor charge of obstruction of a public officer on April 5, 2012. He was immediately suspended by the Oklahoma Bar Association (“Bar”) and directed to show cause why a final order of discipline should not be imposed or present mitigating evidence. The Professional Responsibility Tribunal (“Tribunal”) held a hearing on July 30, 2012. After conducting a de novo review of the Tribunal's recommendations, and giving due consideration to the mitigating factors, we suspended Kerr for two years and a day, beginning on the date of the interim suspension, April 19, 2012. On August 12, 2014, more than two years after his suspension, Kerr filed a petition for reinstatement.

¶ 2 Upon a de novo review,¹ we determine that the attorney presented clear and convincing evidence that, if readmitted, his conduct would conform to the high standards of a member of the Bar.² Costs of $933.52, are imposed.³ Our decision to allow Kerr to return to the practice of law is supported by: testimony from a former member of the Oklahoma Bar's Board of Governors, former state senator, employer, co-worker, business associate, and Kerr's spouse, indicating that the attorney's reinstatement would be advantageous to the judicial system, the Bar, and his community; Kerr's unqualified acceptance of responsibility for his admittedly wrongful acts;⁴ his recognition that he must react differently to situations that pose ethical dilemmas; and his attempts to help young lawyers avoid the pitfalls of his experiences in the practice of law.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Kerr was admitted to the Oklahoma Bar in September 2006, and became an associate attorney with the firm of Ogle & Welch. He handled all misdemeanor cases for the firm. In the spring of 2007, Ogle & Welch undertook representation of a client who was charged in Oklahoma County District Court with driving under the influence. Kerr served as defense counsel for this client. The criminal matter was resolved with the client receiving a deferred sentence, but then was later scheduled for a driver's license revocation hearing with the Department of Public Safety. Attorneys at the firm of Ogle & Welch initiated a series of steps to offer a bribe to an Edmond Police officer in exchange for his absence at the hearing. The officer in question reported the bribery attempt to his superiors and a police investigation commenced.

¶ 4 On July 30, 2010, Kerr was charged with the felony offense of offering a bribe, in violation of 21 O.S.2011 § 381.⁵ In April 2012, that charge was reduced under a plea agreement to a misdemeanor, obstruction of a public officer, in violation of 21 O.S.2011, § 540.⁶ Pursuant to the plea agreement, Respondent received a two-year deferred sentence and a term of probation until April 5, 2014. Kerr completed the term of probation and the criminal case has been dismissed.⁷

¶ 5 The reinstatement hearing was held before the trial panel on October 17, 2014. At the conclusion of the hearing, the Bar expressed support of Kerr's reinstatement application. The trial panel issued its unanimous report on December 8, 2014 finding that Kerr had presented clear and convincing evidence of all the factors necessary for reinstatement and recommending the same. On the same date, the Bar filed its application for the assessment of costs in the amount of $933.52. Kerr filed his brief in chief on December 22, 2014, and the Bar waived the right to file an answer brief.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 6 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.⁸ Our determinations are made de novo.⁹ Although given great weight,¹⁰ neither the findings of fact of the 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

¶ 7 An applicant seeking reinstatement to the practice of law bears a heavy burden which is the same whether the attorney was disbarred or suspended for two years and one day.¹⁵ Before being 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. Under Rule 11.4, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A, the burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied. The more severe the disciplinary offense, the heavier the burden the attorney must overcome to gain reinstatement to the Bar.¹⁶ In addition, the petitioner must present stronger proof of qualifications than one seeking first time admission.¹⁷

¶ 8 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 OS.2011, Ch. 1, App. 1–A requires the trial panel to make specific findings regarding whether the petitioner: 1) possesses the good moral character which would entitle the attorney to be admitted to the Bar; 2) has engaged in the unauthorized practice of law during the period of suspension; and 3) 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.¹⁸ Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.¹⁹

¶ 9 a. Clear and convincing evidence supports the attorney's readmittance to the practice of law in Oklahoma

¶ 10 The trial panel found that Kerr established by clear and convincing evidence that he had complied with all procedural rules governing the reinstatement of attorneys and by unanimous vote recommended that Kerr be reinstated. The Bar supports Kerr's application for reinstatement to the practice of law.²⁰ We determine that the trial panel's recommendation for reinstatement is meritorious.

1) The attorney presented stronger proof of his present moral fitness to practice law than would a first-time applicant for admission.

¶ 11 Six witnesses appeared before the trial panel in support of Kerr's reinstatement. Andrew Rice, a former state senator, testified that he observed Kerr to have “tremendous remorse” over his actions that led to the suspension. The former senator also testified that Kerr has a new approach on life filled with gratitude and humility and that Kerr's priorities demonstrate the attorney's commitment to his family and community. He has no reservation about Kerr's integrity if allowed to practice law.²¹

¶ 12 Powerful testimony was provided by the employer and owner of a local oil and gas exploration company where Kerr started at an entry level land man position more than seven years ago. The employer testified that over the years Kerr gained his trust and confidence and now trusts Kerr with millions of dollars worth of proprietary information of his industry clients. Kerr was hand picked to be one of four managers at the company because of his consistent integrity, honesty and hard work. As a manager, Kerr is one of four people in the company who is trusted with the same proprietary information the employer has.²² Likewise, one of the employer's business clients testified that he trusts Kerr to handle millions of dollars worth of property interests and that Kerr has great integrity and the moral fitness to be an attorney.²³

¶ 13 Additional insight was offered by Joseph Michael Vorndran (“Vorndran”), an attorney who has served on the OBA Board of Governors and the Board of Directors of the OBA Young Lawyers Division. Vorndran has known Kerr since they were in law school. He testified Kerr has always been truthful about the facts and circumstances of his suspension and demonstrated remorse. Vorndran expressed he has no reservations about Kerr's fitness to practice law and that Kerr's legal competence is better now through life experiences and business experiences as a landman. In his opinion, Kerr has stronger qualifications than one being initially considered for admission to the Bar.²⁴

¶ 14 Kerr's wife of ten years and another witness who is a long time friend and practicing attorney also testified. Both witnesses had consistent opinions regarding the depth of Kerr's remorse over his actions which then became the impetus for his internal transformation. Today, Kerr's actions reflect that he has re-aligned his priorities, gaining wisdom in reflection before acting and discerning when a potential ethical issue arises. In addition, Kerr considers...