Reinstatement of Wright, Matter of

• Citation: 907 P.2d 1060,1995 OK 128
• Decision Date: 21 November 1995
• Docket Number: No. 3876,3876
• Parties: In the Matter of the REINSTATEMENT OF Harvey Russell WRIGHT, Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD
• Court: Supreme Court of Oklahoma

Page 1060

907 P.2d 1060

1995 OK 128

In the Matter of the REINSTATEMENT OF Harvey Russell WRIGHT Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 3876.

Supreme Court of Oklahoma.

Nov. 21, 1995.

Hershel L. Franklin, Norman, Michael A. Taylor, R.P. "Bob" Moore, Taylor, Moore & Plater, Oklahoma City, for Harvey Russell Wright, Jr.

Dan Murdock, General Counsel, Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Oklahoma Bar Association.

LAVENDER, Justice.

In February 1988, an order of interim suspension from the practice of law in the State of Oklahoma was issued against Harvey Russell Wright, Jr. (Wright) pursuant to 5 O.S.1981, Ch. 1, App. 1-A, Rule 7.1 et seq. of the Rules Governing Disciplinary Proceedings after his plea of guilty in the United States District Court for the Western District of Oklahoma to the felony crime of distributing cocaine. In May 1990, this Court entered final discipline against Wright in the form of a two year and one day

suspension. State ex rel. Oklahoma Bar Association v. Wright, 792 P.2d 1171, 1172 (Okla.1990). This period ended in May 1992. Wright filed a petition for reinstatement in December 1992. After hearing in March 1993, a Professional Responsibility Tribunal (PRT) recommended Wright be reinstated to the practice of law. We agree with the recommendation of the PRT and grant the petition.

STANDARD OF REVIEW, BURDEN OF PROOF AND FACTORS TO BE

CONSIDERED IN REINSTATEMENT PROCEEDINGS

In reinstatement proceedings we do not sit in review of the PRT's recommendations, but in exercise of our exclusive original jurisdiction in matters involving the licensing of attorneys. Matter of Reinstatement of Kamins, 752 P.2d 1125, 1129 (Okla.1988). Recommendations of the PRT are merely advisory and the ultimate decision regarding reinstatement rests with this Court. Id. at 1129. Our review is, thus, de novo. The burden of proof in reinstatement proceedings is on the petitioner and it is a heavy one. It is stated in Rule 11.4 of the Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A as follows:

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. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the applicant complied with Rule 9.1 of these Rules. ¹

Rule 11.5 of the Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A, further requires before reinstatement it must be found the applicant possesses the good moral character entitling him to be admitted to the Oklahoma Bar Association, that he has not engaged in the unauthorized practice of law during any suspension and that he possesses the competency and learning in the law necessary for admission. State ex rel. Oklahoma Bar Association v. Samara, 683 P.2d 979, 981 (Okla.1984). This Court has further looked at eight factors it has deemed relevant in reinstatement proceedings. They are 1) present moral fitness; 2) demonstrated consciousness of wrongful conduct and disrepute conduct has brought on the profession; 3) extent of rehabilitation; 4) seriousness of original conduct; 5) conduct subsequent to discipline; 6) time elapsed since original suspension; 7) character, maturity and experience at time of discipline; and 8) present competence in legal skills. Matter of Clifton, 787 P.2d 862, 863 (Okla.1990). We have also recognized that the more severe the offense the heavier the burden an applicant must overcome to gain reinstatement, but that each application must be considered on its own merits and will fail or succeed on the evidence presented and the particular circumstances of each individual case. Matter of Reinstatement of Cantrell, 785 P.2d 312, 314 (Okla.1989).

Further, reinstatement is not automatic on a prima facie showing an applicant's conduct has been proper during a period of disbarment, even if there is no evidence to the contrary. Matter of Reinstatement of Cook, 772 P.2d 918, 919 (Okla.1989). We also note before reinstatement there must be a finding the applicant will not commit any serious crime if readmitted and that we must always keep in mind that our foremost consideration is to protect the public welfare. Matter of Reinstatement of Cantrell, supra, 785 P.2d at 313. We also must determine that reinstatement will not adversely affect the Bar. Id.

The Oklahoma Bar Association, through the General Counsel, initially opposed reinstatement in this case and took the position that an attorney with a felony conviction should never be allowed reinstatement by this Court. However, in his latest submission to this Court the General Counsel has receded from this earlier position and has informed us that given our prior cases he cannot present argument against reinstatement and that he realizes that each decision on reinstatement must be made on a case-by-case basis. We believe the General Counsel was correct to recede from his earlier position given the rules specified above concerning reinstatement and our previous cases in this area.

In support of his initial position the General Counsel brought to our attention no rule which would prohibit reinstatement in all instances to one convicted of a felony. No rule was brought to our attention because there is no such rule. Rather, as stated above each application must be viewed on a case-by-case basis to determine whether reinstatement should be allowed. For example, in Matter of Reinstatement of Page, 866 P.2d 1207 (Okla.1993), we denied reinstatement because of the seriousness of the crimes committed and the disrepute cast on the profession by the crimes. See also Matter of Reinstatement of Smith, 871 P.2d 426 (Okla.1994); Matter of Reinstatement of Hanlon, 865 P.2d 1228 (Okla.1993). However, in Matter of Reinstatement of Cook, supra, we granted reinstatement to an applicant convicted of a felony who showed by clear and convincing evidence that he had been rehabilitated and was of high moral character. See also Matter of Reinstatement of Crabtree, 793 P.2d 296 (Okla.1990); Matter of Reinstatement of Cantrell, supra. These latter cases illustrate that our rules provide that those persons who comply with the high standards required for reinstatement should be and are sometimes permitted to resume the practice of law, notwithstanding conviction of a felony. Thus, the decision in a reinstatement proceeding should be made only after a thorough review of the crime(s) committed and their effect on the legal profession [Matter of Reinstatement of Smith, supra, 871 P.2d at 428] and consideration of all of the other factors set forth above. Keeping all of these considerations and factors in mind we now turn to a review of the evidence presented to the PRT.

EVIDENCE CONCERNING REINSTATEMENT DETERMINATION ²

Wright was admitted to practice law in Oklahoma in 1981. Initially, he was an assistant district attorney in Elk City, Oklahoma in the child support collection division. After a brief time there he entered private practice and shortly began an approximate 15 month partnership with another attorney. He then worked as a sole practitioner from about March 1983, until he was elected district attorney of the Second District Attorney District which includes six counties in western Oklahoma; Ellis, Roger Mills, Custer, Beckham, Greer and Harmon. After his election, and before he was sworn into office as district attorney in January 1987, he was appointed an assistant district attorney in the district to enhance the possibility of a smooth transition. On June 10, 1987, Wright resigned as district attorney, a resignation brought about by his plea of guilty to the criminal charge for which he was suspended by this Court.

The evidence showed the facts and circumstances surrounding the conviction for distribution of cocaine to which he pled guilty involved Wright and two other attorneys pooling their money to buy a relatively small amount (one gram) of the substance for their personal use. It was Wright who obtained the substance and shared it with the other two attorneys. This incident occurred in late 1985 or early 1986, i.e. before Wright was elected district attorney. The evidence also showed, and Wright admitted, he used cocaine once in 1985 and once in 1986, apparently that he had used it on previous occasions, and that he had been a user of marijuana, having begun experimentation with that drug at the age of fifteen. No evidence was presented by the Bar or any other source, however, that Wright was ever a trafficker in illegal drugs or dealer of any drug for profit and the uncontradicted evidence established Wright stopped using any illicit drugs prior to the time he took office as a district attorney or was appointed as an assistant after his election to that post. Further, there is no evidence in this record that Wright's previous use of illegal substances ever affected his representation of a client when he was in private practice.

In addition, the evidence showed that Wright underwent drug testing in April 1987 (the date of his arraignment on...