State ex rel. Okla. Bar Ass'n v. Levisay

• Decision Date: 06 October 2020
• Docket Number: SCBD 6827
• Citation: 474 P.3d 875
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Shelley Lynne LEVISAY, Respondent.
• Court: Oklahoma Supreme Court

474 P.3d 875

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Shelley Lynne LEVISAY, Respondent.

SCBD 6827

Supreme Court of Oklahoma.

FILED OCTOBER 6, 2020

I. FACTUAL BACKGROUND

¶1 Respondent, Shelley Lynne Levisay, was admitted to the practice of law in Oklahoma in 2011. She has had no prior discipline. The PRT describes this summary disciplinary matter as "a very unfortunate picture of an attorney who found herself embroiled in a relationship which ultimately made her the victim of domestic abuse." PRT Report, 1. The PRT recounts how the testimony of Respondent and character witnesses depicted "a sound individual and very capable attorney who became romantically involved with a former client." Id . This former client, Adrian David Ray Gerdon, physically and mentally abused Respondent throughout their relationship, including strangulation, death threats, punching, hitting, and whipping with a belt. Id . at Ex. A, ¶ 14; Hr'g Tr., 225-37.

¶2 In September 2016, after a fight in which Gerdon felt Respondent was "being disrespectful," he beat her multiple times with a belt, asking: "Did you learn your lesson about having an attitude?" Hr'g Tr., 237. Respondent went to bed in severe pain, and a few hours later Gerdon woke her in the middle of the night standing over her body, throwing water on her with a lighter in his hand. Id . at 237-38; see also PRT Report, Ex. A, ¶ 18. He told her he was covering her in gasoline and was going to set her on fire. Gerdon often joked about how funny this incident was and how he would like to do it again. Hr'g Ex. 20, JEX 625; Hr'g Tr., 238-39. Record text messages confirm one instance in which Respondent tried to leave Gerdon and he responded: "You are F***ing psychotic! You aren't going anywhere! Stay your ass there[;] we are about to have a come to Jesus moment! I am seriously pisse[d] the f*** off!" Hr'g Ex. 18, JEX 602.

¶3 Throughout their relationship, Respondent met Gerdon's every financial and personal need at great personal cost. Hr'g Tr., 98-111. Respondent hired and paid for attorneys to represent Gerdon in at least five (5) separate criminal cases, including cases in which she was the victim. PRT Report, Ex. A, ¶¶ 20-21. Respondent spent over $7,500 in attorney fees and over $30,000 in bond premiums on Gerdon's behalf. Id . at ¶ 21; Hr'g Tr., 252. In total, Respondent incurred between $50,000 and $75,000 in debt because of Gerdon.¹ Id . On several occasions, Gerdon threatened to try to get Respondent's law license taken away if she left or did not comply with his demands. Hr'g Ex. 18, JEX 608. In one such instance, Gerdon told her in a text message: "Going to make your life a living hell now. ... Hope you enjoy being an attorney[.] You want to f*** with me!!!! It's [o]n I guarantee it!!!!" Id . at 22, JEX 636. At the mitigation hearing, Respondent's former co-worker testified that he witnessed Gerdon's intimidation and emotional abuse of Respondent and, based on his experience as a domestic violence lawyer and as a prosecutor, he believed Gerdon would kill Respondent. Hr'g Tr., 29, 40.

¶4 Following a vicious assault by Gerdon with a knife in January 2016, Respondent obtained a protective order against him.² The State brought criminal charges, and on June 21, 2016, Gerdon pled guilty to domestic abuse assault and battery, assault with a dangerous weapon, larceny from a house, and unauthorized use of a vehicle.³ On the same date, Gerdon also pled guilty and received convictions in seven separately styled cases involving Respondent and other victims.⁴ Pursuant to plea negotiations, the district court ordered all cases and counts to run concurrently for a combined twelve-year sentence, all suspended, with stated conditions including in-patient treatment through the VA Hospital Psychiatric Unit.

¶5 Gerdon later violated the terms and conditions of his probation, and the State moved to revoke his suspended sentences on November 2, 2017. Gerdon failed to appear at the revocation hearing on December 27, 2017, because he had checked into the VA facility the night before, reporting suicidal thoughts. Respondent was present in the courtroom when Gerdon's cases were called, and she informed the court honestly of Gerdon's location. The district court reset the hearing for January 31, 2018, but also issued arrest warrants, advising the warrants were not to be recalled despite the setting of a later hearing date.

¶6 Respondent then secured Gerdon's bail bondsman, who stated in a sworn affidavit that Respondent contacted her immediately after the hearing, advised of Gerdon's commitment at the VA, and offered to provide the address of this location if needed. Hr'g Ex. 3, JEX 44. The bondsman and her bonding agents agreed they did not need to pick up Gerdon, even after discharge from the VA facility, "since he had a court date to turn himself in." Id . The bondsman advised the Pottawatomie County Court Clerk's Office that she would "wait for [Gerdon] to turn himself in at his court date because [the bondsman] did not believe he was a flight risk." Id . Respondent told the bondsman if for whatever reason Gerdon failed to show up on the 31st, she would take the bondsman to him. Hr'g Tr., 264-65. Indeed, as cosigner on the bond, Respondent would be responsible for the full amount if Gerdon fled. After Gerdon left the VA facility on December 29, 2017, he returned to his personal residence where he had been living since October 2017. Hr'g Ex. 2, JEX 37.

¶7 With full knowledge that the district court had not withdrawn the warrants, Respondent continued to provide Gerdon with the same financial, emotional, and physical support she had provided throughout their relationship. She repeatedly brought him whatever food, cash, and supplies he requested, and he continued to use the vehicle she had previously bought him. Based on Gerdon's continued threats, Respondent testified that she believed: "[I]f I don't do what he wants, he's going to hurt me or he's going to ruin my career." Hr'g Tr., 330. On January 24, 2018, Gerdon was arrested on his outstanding warrants and taken into custody.

¶8 Soon after, on February 7, 2018, the Cleveland County District Attorney's Office charged Respondent with one felony count of Harboring a Fugitive From Justice, in violation of 21 O.S.2011, § 440.⁵ On September 11, 2019, Respondent entered a blind plea of no contest, and the district court sentenced Respondent to two years, all suspended, 100 hours of community service, and a $5,000 fine. On September 20, 2019, the OBA transmitted a certified copy of the record relating to the conviction, and pursuant to Rule 7.3 of the RGDP, the Court entered an order of immediate interim suspension on October 7, 2019. The order directed Respondent to show cause, if any, no later than October 21, 2019, why the interim suspension should be set aside. Respondent did not contest the interim suspension, but requested a mitigation hearing before the PRT. On November 18, 2019, the Court granted the Rule 7 hearing on the limited scope of mitigation and recommendation of discipline. At the hearing on January 15, 2020, Respondent presented sworn testimony from five character witnesses, including herself. The OBA did not present witnesses or refute the testimony of Respondent's witnesses. The PRT filed its report on February 14, 2020, adopting and attaching with it the parties' agreed Joint Proposed Findings of Fact and Conclusions of Law. On June 2, 2020, the Court received the completed record sufficient for review.⁶

¶9 Both the PRT and OBA note the "unique circumstances of this case" and compelling mitigation evidence. PRT Report, 6, Ex. A, ¶ 46. The PRT and OBA conclude that based on the evidence presented, Respondent supported Gerdon as she had before, "under threat of violence ." Id . at 2 (emphasis added). As the PRT states, "[b]ecause Gerdon was then a fleeing felon, Respondent's continued support of him caused her to be charged with harboring a fugitive." Id . Strikingly, this is despite the reset court date and the bondsman's assurances that Gerdon did not pose a flight risk. The record reflects that throughout the twenty-six days of providing Gerdon the food and items he requested, Respondent repeatedly encouraged him to check-in with his probation officer and/or return to treatment at the VA hospital. Hr'g Ex. 4, JEX 45-46, 52, 57, 142-45, 166-67. Respondent testified that she had every belief Gerdon would appear for the revocation hearing as scheduled. Respondent never encouraged Gerdon to flee the jurisdiction or change locations as a result of the outstanding warrants. Id . at 2, JEX 37. Gerdon was still living in his trailer home in the same location he had been living since October 2017, before the State moved to revoke his probation. Id . Law enforcement officers never questioned Respondent about Gerdon's whereabouts in effort to execute the warrants, but she never took it upon herself to alert them after alerting the bondsman of his location. Id .

¶10 Balanced against Respondent's efforts to encourage Gerdon to appear is her knowledge of Gerdon's overall propensity for violence. Text messages show Respondent asking Gerdon if he was involved in an officer-related shooting she heard about in the news during this period. Respondent admitted that she knew Gerdon was dangerous and she "could have seen him attacking an officer and an officer having to shoot him." Hr'g Tr., 268. Additionally, during this time Gerdon physically assaulted one of his former girlfriends, chasing her around the trailer property with a gun. Respondent did not learn of this incident until much later, but she agreed on cross-examination that the harm could have potentially been avoided had she reported Gerdon after he left the VA facility. Hr'g Ex. 4, JEX 229-32. Respondent admits that even with the very real fear for her safety if she reported him, it was not an impossibility and that she had successfully done so following Gerdon's...