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

• Decision Date: 17 June 2008
• Docket Number: SCBD No.4912.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael GASSAWAY, a.k.a. John Michael Gassaway, Respondent.
• Court: Oklahoma Supreme Court

196 P.3d 495

2008 OK 60

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael GASSAWAY, a.k.a. John Michael Gassaway, Respondent.

SCBD No.4912.

Supreme Court of Oklahoma.

June 17, 2008.

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

¶ 0 The Oklahoma Bar Association (OBA) filed a Complaint against Respondent, John Michael Gassaway, alleging multiple counts of attorney misconduct. A trial panel of the Professional Responsibility Tribunal (PRT) found Respondent violated Rules 1.1, 1.3, 1.4, 1.5, 3.1, 3.3, 3.5(b), 8.1(b) and 8.4(a)(b)(c) and (d) of the Oklahoma Rules of Professional Conduct (ORPC), as well as Rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings (RGDP). After a multi-day hearing, the PRT recommended disbarment. The OBA seeks to assess the costs of the proceeding to Respondent.

RESPONDENT DISBARRED; ORDERED TO PAY COSTS.

Dan Murdock, General Counsel, Oklahoma Bar Association; Loraine Dillinder Farabow and Janna Dunagan Hall, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant, State of Oklahoma ex rel. Oklahoma Bar Association.

William H. Bock and Michelle L. Greene, Oklahoma City, OK, for Respondent.

John Michael Gassaway, Oklahoma City, OK, pro se Respondent.

WINCHESTER, C.J.

¶ 1 This matter arises from multiple counts of alleged attorney misconduct by the respondent, John Michael Gassaway (Respondent). Complainant, the Oklahoma Bar Association (OBA), filed its initial complaint on March 26, 2004, alleging three counts of misconduct, and an amended complaint on January 18, 2007, alleging an additional twelve counts of misconduct. A panel of the Professional Responsibility Tribunal (PRT) conducted a hearing over the course of several days in which voluminous testimony and evidence were presented.¹ The PRT found clear and convincing evidence of attorney misconduct in six of the fifteen counts and recommended disbarment. An application for costs was filed by the OBA in the amount of $17,587.92.

JURISDICTION AND STANDARD OF REVIEW

¶ 2 In bar disciplinary proceedings, this Court possesses exclusive original jurisdiction. State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 10, 895 P.2d 707, 711. Our review of the evidence is de novo in determining if the Bar proved its allegations of misconduct by clear and convincing evidence. RGDP Rule 6.12(c); State ex rel. Oklahoma Bar Ass'n v. Bolusky, 2001 OK 26, ¶ 7, 23 P.3d 268, 272. Whether to impose discipline is a decision that rests solely with this Court and the recommendations of the PRT are neither binding nor persuasive. State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 648.

¶ 3 The primary purpose of disciplinary proceedings is not punishment but purification of the Bar. State ex rel. Oklahoma Bar Ass'n. v. Samara, 1984 OK 32, ¶ 11, 683 P.2d 979, 983. This Court's primary goal is to protect the public and to preserve its confidence in the legal system. State ex rel. Oklahoma Bar Ass'n. v. Colston, 1989 OK 74, ¶ 18, 777 P.2d 920, 925. The maintenance of strict integrity among the members of our bar is one of this Court's constitutional, non-delegable duties. Colston, 1989 OK 74, ¶ 19, 777 P.2d at 925. We have reviewed the evidence and find the record sufficient for our de novo consideration.

FACTS AND DISCUSSION

Counts I and II: Judge Tammy Bass-Lesure and the Richard Smith Matter

A. Background

¶ 4 On June 17, 2002, shortly after Respondent's license to practice law had been reinstated following a 1995 resignation pending disciplinary action, Richard Smith (Smith) retained Respondent to represent him in a criminal matter. Smith had pled guilty fourteen (14) years prior to thirteen (13) counts of felony embezzlement by a trustee and was given a suspended sentence of fifteen (15) years supervised probation and ordered to pay restitution of over forty thousand dollars ($40,000) due and payable by the end of his sentence. At the time he sought Respondent's assistance, Smith's sentence had less than one year to run and the full amount of his restitution remained due.

¶ 5 On July 24, 2002, Respondent appeared in the chambers of Judge Tammy Bass-Lesure (then Tammy Bass-Jones) to present an application to correct sentence along with a proposed order. Judge Bass-Lesure testified that Respondent stated he was before her on one of Scott Adams' cases and that he was presenting a motion for modification.² Judge Bass-Lesure further testified that Respondent informed her Smith was a disabled veteran with significant health issues and that he was seeking to remove Smith's required monthly supervision fee from the suspension order which would allow him to apply those monies instead towards his restitution debt.³

¶ 6 Judge Bass-Lesure testified Respondent told her that the District Attorney's office had been notified of the motion so she asked Respondent to go find the Assistant District Attorney (ADA) and have her appear. Judge Bass-Lesure stated that when Respondent returned to her chambers, he informed her that the ADA would not be appearing. Judge Bass-Lesure then signed the proposed order. She testified that Respondent took the order and left her office.

¶ 7 An order dated July 24, 2002, was filed in the matter with Judge Bass-Lesure's signature appearing as the only item on the last page of the order.⁴ Judge Bass-Lesure testified she believed she was only modifying Smith's probation from supervised to unsupervised as the Respondent had discussed with her. However, the file-stamped order was substantially different than the version she believed she signed. Indeed, the order on file changed Smith's sentence from three consecutive five year suspended sentences to a deferred sentence, and also completely absolved Smith of his $40,000 restitution obligation.

¶ 8 Smith testified that he took a copy of the order to the Oklahoma State Bureau of Investigation (OSBI) and requested that his criminal record be expunged. The OSBI then contacted the District Attorney's office who in turn contacted Judge Tammy Bass-Lesure to verify the accuracy of the order because they believed it to be a forgery. Judge Bass-Lesure testified it was not a forgery, because it was her signature, but that she would not have signed the order if what she had been presented indicated that she was changing a sentence from suspended to deferred, nor would she have forgiven over $40,000 in restitution. As a result, Judge Bass-Lesure rescinded her order, specifically citing misrepresentations by Respondent as the reason for the rescission. Smith was later arrested for failure to pay the court-ordered restitution.

¶ 9 Respondent denies Judge Bass-Lesure's recollection of the events. He testified the judge carefully read the application and order and signed it because she was upset with the District Attorney's office for not appearing with Respondent on the matter.⁵ Respondent further testified that he never told the judge the District Attorney's office had been notified nor did the judge ever ask. Respondent testified he "had skinned me a pretty quick cat" and that Judge Bass-Lesure was lying to cover for herself.

B. Analysis

¶ 10 The Trial Panel found Complainant proved Respondent's violations of Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication with client), 3.1 (meritorious claims and contentions), 3.3 (candor toward the tribunal), 3.5(b) (ex parte communications with a judge), 8.4(a) (violation or attempted violation of the ORPC), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (conduct prejudicial to the administration of justice) of the Oklahoma Rules of Professional Conduct (ORPC) and Rule 1.3 (acts contrary to prescribed standards of conduct) of the Rules Governing Disciplinary Proceedings (RGDP). We agree.

¶ 11 The evidence reflected that Respondent, less than two months after having his license to practice law reinstated by this Court, was once again engaging in fraudulent conduct as he had in past disciplinary matters before the OBA. In weighing the credibility of the testimony presented by Judge Bass-Lesure and that of Respondent, a felon previously convicted of fraudulent activity, we find Respondent's testimony unbelievable. Moreover, we find that although Mr. Smith testified he was satisfied with Respondent's representation, Respondent's unethical tactics resulted in Smith's arrest and prolonged his legal woes.

¶ 12 Obtaining the signature of a judge under fraudulent conditions is a serious breach of ethics that clearly reflects moral turpitude. State ex rel. Oklahoma Bar Association v. Colston, 1989 OK 74, ¶ 16, 777 P.2d 920, 924. Respondent knowingly and willingly engaged in dishonest conduct by: (1) misrepresenting the nature of his visit to Judge Bass-Lesure; (2) untruthfully claiming that he had informed the assistant district attorney, not only of the newly pending motion, but of the opportunity to be heard before the judge; and (3) misleading Judge Bass-Lesure into believing that her executed order was merely modifying the structure of Smith's probation fees when Respondent instead filed an order with substantially greater legal consequences. We find the evidence on these two counts to clearly and convincingly establish the charged violations.

Count III: Forgery of Scott Adams' Letterhead

A. Background

¶ 13 In October 2003, the OBA notified Respondent they were formally investigating a grievance that had been filed against him. On January 12, 2004, the OBA received a response to the grievance that appeared to be a letter written and signed by attorney Scott Adams. The letter was printed on Adams' letterhead and contained a signature block that was purportedly signed by Adams. The letter demanded, in part, that the OBA either dismiss the grievance against Respondent or open a similar investigation against Adams.

¶ 14 An OBA investigator testified that the language and tone of the letter was not consistent with...