Oklahoma Bar Ass'n v. Patterson

• Citation: 2001 OK 51,28 P.3d 551
• Decision Date: 26 June 2001
• Docket Number: No. SCBD-4494.,SCBD-4494.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. William J. PATTERSON, Respondent.
• Court: Oklahoma Supreme Court

28 P.3d 551

2001 OK 51

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. William J. PATTERSON, Respondent.

No. SCBD-4494.

Supreme Court of Oklahoma.

June 26, 2001.

Allen J. Welch, Assistant General Counsel, Oklahoma Bar Ass'n, Oklahoma City, for Complainant.

Patrick A. Williams, Tulsa, OK, for Respondent.

PER CURIAM.

¶ 1 In this reciprocal disciplinary proceeding against a lawyer, the issues to be decided are (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the charge against respondent and of its disposition?¹ and (2) Is public censure an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I INTRODUCTION TO THE RECORD

¶ 2 On 14 January 1998, the United States Court of Appeals for the Tenth Circuit (the Tenth Circuit) disbarred William J. Patterson (Patterson or respondent), a lawyer licensed to practice in Oklahoma, for practising law while under an order of suspension. Respondent did not notify the Oklahoma Bar Association (the Bar or complainant) that discipline had been imposed upon him in another jurisdiction as required by Rule 7.7(a) of the Rules Governing Disciplinary Proceedings (RGDP).² The Bar was notified of respondent's disbarment by the Tenth Circuit Court Clerk's office. After an initial exchange of letters between respondent and the Bar, the Bar initiated this reciprocal disciplinary proceeding against respondent pursuant to RGDP Rule 7.7(b) [Rule 7.7(b) or the reciprocal disciplinary rule].³

¶ 3 The court then ordered respondent to show cause why reciprocal discipline should not be imposed. Upon consideration of the briefs submitted by the parties, the court concluded that the record was insufficient for the disposition of the charge and ordered an adversarial hearing before a trial panel of the Professional Responsibility Tribunal.

¶ 4 A hearing was held on 8 February 1999, after which the trial panel issued a report containing its findings of fact, conclusions of law, and a recommendation for discipline. The trial panel concluded that respondent had violated the terms of RGDP Rule 7.7(a) by failing to notify the Bar that disciplinary action had been taken against him in the Tenth Circuit, but that the violation was the result of respondent's ignorance of the rule and was therefore not a deliberate effort at concealment. The panel also concluded that respondent had practiced law during a period of suspension, but that there was "sufficient confusion surrounding the original suspension order giving rise to the subsequent disbarment order" that respondent's degree of culpability for his disbarment was difficult to assess. The panel recommended public censure as the appropriate disciplinary measure. Respondent has agreed to pay the costs of this proceeding.⁴

II THE RECORD BEFORE THE COURT CONTAINS SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 5 The instant proceeding is predicated on misconduct previously adjudicated in another jurisdiction. Respondent is therefore subject to the reciprocal disciplinary procedure set forth in Rule 7.7(b).⁵ That rule authorizes the Bar to initiate disciplinary proceedings in this state whenever discipline has been imposed upon a lawyer by another state's highest court or by a federal court. The reciprocal disciplinary process is commenced when the Bar forwards to the Chief Justice a certified copy of the other jurisdiction's disciplinary order. Rule 7.7(b) states that the foreign order:

". . . shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described. The lawyer may submit a certified copy of the transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his/her claim that the finding therein was not supported by the evidence or that it does not furnish sufficient grounds for discipline in Oklahoma." (emphasis added)

¶ 6 The above-quoted portion of Rule 7.7(b) delimits the extent to which a respondent may challenge the adjudication of the other jurisdiction. A bar disciplinary proceeding is sui generis.⁶ Because it is not civil in nature, neither the full faith and credit doctrine, which affords preclusive effect to the judgments of our sister-state courts,⁷ nor any related doctrine giving similar preclusive effect to the judgments of federal courts⁸ requires us to accord interjurisdictional preclusion to the Tenth Circuit's adjudication of misconduct. A bar disciplinary case is more in the nature of a penal proceeding to which the rules governing interjurisdictional preclusion in civil cases do not apply.⁹ The extent to which interjurisdictional preclusion is afforded in the context of a reciprocal disciplinary proceeding is mandated by the reciprocal disciplinary rule alone, which limits the respondent's attack on the other jurisdiction's fact-finding to the evidence contained in a certified copy of the transcript of the other jurisdiction's proceedings. Hence, the facts that resulted in the imposition of discipline by the other jurisdiction cannot be relitigated, but only reviewed within the context of the evidence previously presented in the other jurisdiction.¹⁰ Respondent's failure to respond in this case to the Tenth Circuit's show-cause order preceding his disbarment leaves him without a transcript to submit for our consideration. He is therefore bereft of any basis upon which he may challenge the prima facie evidence of misconduct provided by the order disbarring him.

¶ 7 Beyond this rather limited scope of attack on the other jurisdiction's adjudication, the range of permissible inquiry in a reciprocal disciplinary proceeding stands confined to issues that are germane to the mitigation or severity of the bar disciplinary sanction which is to be visited upon the respondent.¹¹

¶ 8 Having initially found the record to be insufficient for a determination of the appropriate disciplinary sanction, we returned this matter to a trial panel of the Professional Responsibility Tribunal with directions to conduct an adversarial hearing at which respondent's misconduct could be thoroughly explored and his explanations and defenses aired.¹² The record of that hearing is now before us and we find that it is adequate for our de novo consideration of the appropriate measure of discipline to be imposed upon respondent for his professional misconduct.

III FACTUAL BACKGROUND

¶ 9 In 1993, respondent came to represent two clients before the Tenth Circuit, Lloyd Michael Reid and David Kirkland Deanovich. Because an issue in both clients' appeals was the adequacy of respondent's representation below, respondent attempted to withdraw from both cases. He was not permitted to do so, and the conflict kept him from submitting appellate briefs for either client. The Tenth Circuit eventually removed him from both cases and ordered him to show cause why he should not be disciplined for his neglect. Patterson did not respond to the court's show-cause order, relinquishing the opportunity to explain his failure to prosecute the appeals. The Tenth Circuit suspended respondent from the practice of law.

¶ 10 In 1997, respondent represented a tax protester named Ralph Bailey before the United States District Court for the Northern District of Oklahoma. Although Bailey filed his notice of intent to appeal pro se, the Tenth Circuit Court Clerk's office began corresponding with respondent as Bailey's attorney. Upon receiving letters from the clerk's office that certain documents had to be filed or Bailey's appeal would be dismissed, respondent chose to file those documents despite his suspended status.

¶ 11 During the pendency of Bailey's appeal, respondent became involved in the Tenth Circuit with a second appellant named Dennis Eidson. Having been pressed by the clerk's office to proceed with Bailey's appeal, and having received no indication from the Tenth Circuit that there would be negative consequences for having done so, respondent says he mistakenly believed that he could go ahead and handle Eidson's appeal as well.

¶ 12 He was wrong. In October 1997, the Tenth Circuit ordered respondent to show cause why he should not be disciplined for practising law during a period of suspension. Patterson did not respond to the court's order and on 14 January 1998 he was disbarred by the Tenth Circuit.

IV PATTERSON'S RESPONSE TO THE CHARGES AGAINST HIM

¶ 13 Under RGDP Rule 7.7(a),¹³ a lawyer must inform the Bar whenever discipline has been imposed upon him in another jurisdiction. Respondent acknowledges having received contemporaneous notice of his disbarment, but claims he was unaware of his notification obligation. Consequently, he did not advise the Bar that the Tenth Circuit had suspended him in 1994, nor did he apprize it of his disbarment in 1998. Respondent's failure on two occasions to notify the Bar of the Tenth Circuit's actions is itself grounds for discipline.¹⁴

¶ 14 Upon receiving notice of respondent's disbarment, the Bar sent Patterson a letter informing him of the possibility of reciprocal discipline in Oklahoma. Respondent immediately sought legal assistance from an attorney named Charles Seger. In addition to agreeing to handle the matter with the Bar, Seger also agreed to represent respondent in the Tenth Circuit. Unbeknownst to respondent, Seger was not admitted to practice before that court. Seger sent a letter dated 24 April 1998 to the Bar setting out respondent's explanation for the conduct which had resulted in his disbarment. Seger testified that he also mailed a copy of the letter to the Tenth Circuit, but he was unable to produce any physical proof of mailing. The letter contained misstatements of fact. Both Seger and respondent agree that respondent did not review the letter before it was sent, and only sometime later discovered that...