In re Reinstatement of Johnston

• Decision Date: 12 June 2007
• Docket Number: SCBD No. 5145.
• Citation: 2007 OK 46,162 P.3d 922
• Parties: In the Matter of the REINSTATEMENT OF Robert L. JOHNSTON to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

162 P.3d 922

2007 OK 46

In the Matter of the REINSTATEMENT OF Robert L. JOHNSTON to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 5145.

Supreme Court of Oklahoma.

June 12, 2007.

As Corrected June 13, 2007.

PROCEEDING FOR REINSTATEMENT TO THE OKLAHOMA BAR ASSOCIATION.

¶ 0 Applicant, Robert L. Johnston, petitioned for reinstatement to membership in the Oklahoma Bar Association following his resignation from the Association in 2000. After hearing, the three-member trial panel of the Professional Responsibility Tribunal recommended reinstatement. Upon de novo review we approve the application for reinstatement subject to petitioner's payment of costs in the amount of $1,210.18 within ninety (90) days.

APPLICATION IS APPROVED SUBJECT TO CONDITION.

Jack S. Dawson, Oklahoma City, for applicant.

Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for respondent.

EDMONDSON, V.C.J.

¶ 1 On October 16, 2000, we granted Robert L. Johnston's application for an order approving his resignation pending disciplinary proceedings following his 1997 conviction on five counts of drug related federal criminal offenses for which he was sentenced to prison for a term of 26 months, followed by a 3 year term of supervised release. We issued an order of interim suspension against Mr. Johnston in June 1997.

¶ 2 This is Mr. Johnston's first attempt at reinstatement. He filed his petition on January 5, 2006, pursuant to Rule 11.1 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, (RGDP), and hearing was held on April 21, 2006, before a three-member trial panel of the Professional Responsibility Tribunal which heard testimony of Mr. Johnston and six witnesses who testified on his behalf; it received numerous exhibits which were jointly presented, considered the applicable law and heard statements of counsel. No witnesses were opposed to his reinstatement. The Bar Association joined with Mr. Johnston in urging the trial panel to recommend that he be reinstated to the practice of law. The panel concluded that Mr. Johnston had satisfied all the requirements for reinstatement and recommended that his petition should be granted.

¶ 3 The Bar Association and Mr. Johnson have waived their opportunity to present additional briefs here, expressing their mutual opinion that the pretrial submissions, closing arguments of counsel and the trial panel's report more than adequately present the facts and the law and that any additional briefing would not be helpful to the Court.

I.

¶ 4 In bar reinstatement proceedings, as in other disciplinary matters concerning the licensing of attorneys, the Supreme Court does not sit in review of the recommendations rendered by the trial panel of the Professional Responsibility Tribunal; instead, we exercise our original and exclusive jurisdiction by independently reviewing the evidence submitted and applying a de novo standard of review. Matter of Reinstatement of Page, 2004 OK 49, 94 P.3d 80, 81. As the ultimate decision regarding reinstatement rests with this Court, the recommendations of the trial panel, although entitled to great weight, are merely advisory in nature. Matter of Reinstatement of Meek, 2006 OK 14, 130 P.3d 255; Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125, 1129.

¶ 5 Rule 11.4 RGDP provides that in reinstatement proceedings the burden is placed on the applicant to show by clear and convincing evidence that his or her application warrants reinstatement. In pertinent part that rule states:

An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant's conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court's former judgment adverse to the applicant. Feelings of sympathy towards the applicant must be disregarded.

¶ 6 Rule 11.5 RGDP sets forth three additional specific findings which the trial panel must make before an applicant can be reinstated, namely that the applicant:(1) possesses the good moral character entitling him or her to be admitted to the Oklahoma Bar Association; (2)has not engaged in any unauthorized practice of law during the period of suspension, disbarment or resignation; and (3)possesses the competency and learning in the law required for admission to practice law in Oklahoma.

¶ 7 This Court views applications seeking reinstatement to the practice of law with utmost seriousness and it is our primary duty to safeguard the interests of the public, the courts and the legal profession. Stressing that fact, in Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125, 1130, we set forth these additional factors for considering evidence presented for reinstatement:(1) the present moral fitness of the applicant; (2) the applicant's demonstrated consciousness of wrongful conduct and the disrepute which that conduct brought to the profession; (3) the extent of applicant's rehabilitation; (4) the seriousness of the original misconduct; (5) applicant's conduct after the resignation; (6) the time which has elapsed since the resignation or discipline; (7) applicant's character, maturity and experience at the time of discipline or resignation; (8) applicant's present competence in legal skills. Kamins, at 1130. See also Matter of Reinstatement of Elias, 1988 OK 86, 759 P.2d 1021. We also must determine that reinstatement would not adversely affect the Bar and that applicant would not commit any serious crime if readmitted. Matter of Reinstatement of Cantrell, 1989 OK 165, 785 P.2d 312, 313; Matter of Reinstatement of Massey, 2006 OK 21, 136 P.3d 610, 615.

¶ 8 The burden placed on an applicant seeking reinstatement to the practice of law is a heavy one and it is the same whether applicant was disbarred or resigned from the bar pending disciplinary proceedings. Kamins, at 1129; Matter of Reinstatement of Hardin, 1996 OK 115, 927 P.2d 545, 546. We have held that a felony conviction is "not tantamount to a death sentence regarding reinstatement of the license to practice law. Rather, each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors." Matter of Reinstatement of Anderson, 2002 OK 64, 51 P.3d 581, 583; Matter of Reinstatement of Wright, 1995 OK 128, 907 P.2d 1060, 1063. While a felony conviction is obviously a matter of great seriousness and we judge those facts and surrounding circumstances with increased awareness of that seriousness and the disrepute it casts up on the profession, we have recognized that it is possible for one who has committed a felony to show by clear and convincing evidence that he or she can comply with high standards required for reinstatement. Matter of Cantrell, 785 P.2d 312; Matter of Anderson, 51 P.3d 581; Matter of Reinstatement of Spilman, 2004 OK 79, 104 P.3d 576.

¶ 9 Also, reinstatement is not automatically granted upon a prima facie showing of applicant's proper conduct following the loss of his or her license to practice, even in the absence of evidence to the contrary. Matter of Wright, at 1063.

II

¶ 10 The record shows the following. Mr. Johnston was admitted to the Oklahoma Bar Association in 1978. He began his legal career working for the Oklahoma County District Attorney, after which he worked in the Oklahoma City Municipal Counselor's Office as a police legal advisor and as a municipal prosecutor. Later he was appointed City Attorney of Midwest City. He also worked for different attorneys engaged in general practice. Ultimately he went into private practice on his own, and for many years he primarily concentrated on criminal defense law.

¶ 11 In 1993, a disciplinary action was brought against Mr. Johnston wherein we found the evidence supported the parties' stipulations of fact and agreed conclusions of law that he had failed to diligently and competently represent and communicate appropriately with his clients, made a false statement to the court and commingled and converted his clients' funds. Recognizing that his misconduct resulted primarily from an "admitted incompetence" in the area and not from bad intentions (he mishandled client's money out of ignorance of proper procedures for trust accounts and his incorrect statement of fact to the judge was not intended to deceive or gain advantage), we adopted the PRT's recommendation that he should be suspended from the practice of law for four months. State ex rel. Oklahoma Bar Association v. Johnston, 1993 OK 91, 863 P.2d 1136.

¶ 12 In May 1994, we issued a private reprimand to Mr. Johnston for unprofessional and irresponsible conduct committed during that period of suspension for actions which constituted misrepresenting his status and engaging in the unauthorized practice of law. According to his undisputed testimony before the trial panel, he helped his then girlfriend with a ticket by having a municipal counselor write a recommendation for a fine on back of the ticket which Mr. Johnston then took to the cashier counter and paid for her.

¶ 13 On June 17, 1997, this Court entered an order of interim suspension against Mr. Johnston after he was convicted in the United States District Court for the Western District of Oklahoma of one count of attempting to possess a steroid in violation of 21 U.S.C. § 846, a misdemeanor, to which he entered a plea of guilty; and three felony counts of use of a telephone to facilitate distribution of marijuana in violation of 21...