In re Reinstatement of Anderson, SCBD 4649.

• Decision Date: 02 July 2002
• Docket Number: No. SCBD 4649.,SCBD 4649.
• Citation: 2002 OK 64,51 P.3d 581
• Parties: In the Matter of REINSTATEMENT OF Paul R. ANDERSON, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

51 P.3d 581

2002 OK 64

In the Matter of REINSTATEMENT OF Paul R. ANDERSON, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

No. SCBD 4649.

Supreme Court of Oklahoma.

July 2, 2002.

Mark A. Ashton, Ashton, Wisener & Munkacsy, PC, Lawton, OK, for Petitioner.

Dan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, Respondent.

WINCHESTER, J.:

¶ 1 The applicant, Paul R. Anderson, was stricken from membership in the Oklahoma Bar Association on June 11, 1996. He resigned pending disciplinary proceedings. He filed a petition for reinstatement on October 5, 2001. A hearing was held before the Trial Panel of the Professional Responsibility Tribunal (PRT) on December 6, 2001. In their report of February 7, 2002, the PRT recommended the applicant's request for reinstatement must be denied. We agree.

Burden of Proof, Factors Considered in Reinstatement Proceedings

¶ 2 The trial panel's recommendations are entitled to great weight, but are merely advisory in nature. In attorney disciplinary matters, including reinstatements, this Court does not sit in review of the panel's recommendations, but instead exercises original jurisdiction. Matter of Page, 1993 OK 165, ¶ 3, 866 P.2d 1207, 1209.

¶ 3 The requirements for reinstatement are found in Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.1991, ch.1 app. 1-A. Rule 11.4 provides that an applicant must establish affirmatively that the applicant's conduct will conform to the high standards required of a member of the Bar. The burden is on the applicant to establish by clear and convincing evidence that the applicant has met the prerequisites for reinstatement. The traditional factors considered by the courts in reinstatement cases include:

(1) the present moral fitness of the applicant,

(2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession,

(3) the extent of the applicant's rehabilitation,

(4) the seriousness of the original misconduct,

(5) the conduct subsequent to discipline,

(6) the time that has elapsed since the original discipline,

(7) the applicant's character, maturity, and experience at the time of discipline, and

(8) the applicant's present competence in legal skills. Matter of Reinstatement of Kamins, 1988 OK 32, ¶ 20, 752 P.2d 1125, 1130, citing State v. Russo, 230 Kan. 5, 630 P.2d 711, 714 (1981).

¶ 4 Several cases, including the Matter of Reinstatement of Wright, 1995 OK 128, 907 P.2d 1060, the Matter of Reinstatement of Kirk, 1990 OK 122, 804 P.2d 443 and Matter of Reinstatement of Cook, 1989 OK 64, 772 P.2d 918 establish that a felony conviction is not tantamount to a death sentence regarding the reinstatement of the license to practice law. Rather, each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.

Evidence Concerning Reinstatement Determination

¶ 5 Paul R. Anderson was admitted to the Oklahoma Bar Association on April 1, 1969. The petitioner served as a member of the Judge Advocates Generals Corps of the United States Air Force from 1969 until 1972 when he began working as an assistant district attorney in Payne County. From 1974 until 1983, petitioner operated a private law practice in Stillwater. From all accounts, this was a flourishing practice which provided the petitioner with a lucrative income. In 1983, the petitioner was appointed as District Attorney for the 9th Judicial District (Payne and Logan counties). He served in that position until his resignation in April 1996.

¶ 6 During his tenure as District Attorney, the petitioner served as President of the National Organization for Victim's Assistance, chairperson of the Governor's Violent Crime and Drug Policy Board and as a board member of the National District Attorneys Association, as well as holding several other high-profile positions, on both the state and national level. The petitioner assisted in implementing one of the first drug courts in the nation and made significant contributions to the administration of justice in Oklahoma. By all accounts, the petitioner was highly respected by both the public and the legal profession prior to April 1996.

¶ 7 In April 1996, the State Auditor and Inspector conducted an investigative audit of the Payne County District Attorney's office. When Clifton Scott, State Auditor, served Anderson with a subpoena, the petitioner quickly admitted his wrongdoing and assisted the State Auditor and Attorney General's office in uncovering evidence of the money that had been misappropriated. Over a five-year-period, the petitioner embezzled $84,000.00 from the District Attorney's office. The petitioner issued press releases taking full responsibility for his actions. He entered a blind plea to all three counts and was sentenced to serve two years in the custody of the Department of Corrections and to pay full restitution of the monies taken from the District Attorney checking accounts.

¶ 8 The petitioner was incarcerated on December 30, 1996, and released on September 9, 1997, after having completed all of his sentence once Department of Correction credits were taken into consideration. Petitioner paid the ordered restitution by July 1998. These actions satisfied the criminal aspect of the petitioner's misconduct and while reinstatement could certainly not be considered without their completion, many other factors must also be considered.

¶ 9 In the interim period of time between his resignation as district attorney and incarceration, the petitioner was employed digging ditches in Stillwater. After release from prison, he took employment with the Sunnybrook Christian Church in Stillwater. It appears this position began as an "assistant" (running errands and assisting the pastor) and grew over the years into a true "associate pastor" position. The petitioner has been ordained, delivers sermons, teaches classes and ministers to the congregation. To remain in the community where he was so well known illustrates an acceptance of responsibility on the part of the petitioner and also demonstrates a great deal of courage.

¶ 10 Many attorneys who are without a license find employment as a paralegal or in other capacities at law offices. In his testimony, the petitioner stated that working in that capacity would give too much opportunity "to cross the line." He, and several witnesses, stated that when someone asks the petitioner for legal advice, he is very quick to tell them he cannot assist them.

¶ 11 We now turn to the eight previously mentioned factors considered when a petitioner applies for reinstatement.

¶ 12 First, we consider present moral fitness of the petitioner. ¶ 13 The petitioner had several very credible, high profile witnesses testify on his behalf. In particular, Richard Wintory, who prosecuted the petitioner, testified that he should be reinstated.

¶ 14 Additionally, 137 letters were submitted on the petitioner's behalf from various individuals in Stillwater and from around the state. While on its face this may seem very convincing evidence that the petitioner "possesses the moral and ethical values" required by the Bar Association (a phrase often repeated in the 137 letters), this evidence is not persuasive. Surely those who elected the petitioner, served with him on various committees and worked closely with him for the five years he was embezzling funds were convinced of his high moral and ethical values as well.

¶ 15 The second factor concerns the demonstrated consciousness of the wrongful conduct and disrepute the conduct brought the profession.

¶ 16 The petitioner has demonstrated numerous times that he realizes he made a serious mistake. Initially following the investigation, he made public statements taking responsibility for his actions. Additionally, he has delivered several sermons discussing the temptation of materialism, his remorse and the consequences of his actions.

¶ 17 The disrepute the conduct brought the profession is more difficult to measure. The petitioner's involvement in state and national organizations increased his reputation, making him more well-known than many...