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

• Decision Date: 28 April 2015
• Docket Number: No. 6119.,6119.
• Citation: 2015 OK 25,350 P.3d 131
• Parties: STATE of Oklahoma ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Richard M. WINTORY, Respondent.
• Court: Oklahoma Supreme Court

350 P.3d 131
2015 OK 25

STATE of Oklahoma ex rel., OKLAHOMA BAR ASSOCIATION, Complainant
v.
Richard M. WINTORY, Respondent.

No. 6119.

Supreme Court of Oklahoma.

April 28, 2015.
Rehearing Denied June 1, 2015.

Katherine M. Ogden, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.

Mack Martin and Amber Brianne Martin, Martin Law Office, Oklahoma City, for Respondent.

OPINION ON REHEARING

COMBS, V.C.J.:

¶ 1 Respondent Richard M. Wintory, OBA No. 11013, is an attorney licensed to practice law in the State of Oklahoma and was admitted to the Oklahoma Bar Association (OBA) on October 18, 1981. This disciplinary matter comes before the Court pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, Ch. 1, App. 1–A concerning imposition of reciprocal discipline for professional misconduct occurring in Arizona, where Respondent is also licensed to practice law.¹

I.

FACTS AND PROCEDURAL HISTORY

¶ 2 Respondent's Arizona discipline stems from his conduct during a murder trial in

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which he was acting as prosecutor.² The trial concerned the criminal defendant's involvement in a murder for hire plot, a crime for which Arizona initially sought the death penalty. To aid defense counsel in identifying mitigation evidence, the court recommended use of a confidential intermediary (CI) to locate the defendant's biological mother. As the defendant had been adopted, neither he nor his defense counsel had knowledge of his family's mental health history or whether his mother had used drugs or alcohol during her pregnancy. This information could have been considered as mitigation evidence if the case had resulted in defendant's conviction and moved on to the penalty phase. Accordingly, a CI was appointed by the Office of Court Appointed Counsel from a list of intermediaries approved by the Arizona Supreme Court, with her pay vouchers to be reviewed and approved by defense counsel.

¶ 3 The CI succeeded in locating and making contact with defendant's birth mother in June of 2011. On July 1, 2011, during a contentious meeting with defense counsel, the CI refused to share the birth mother's identity because she did not believe she had authority to do so. The CI withdrew from the case on July 2, 2011, and the birth mother filed an affidavit of no contact. On July 6, 2011, defense counsel requested an ex parte hearing with the court to discuss his difficulties in obtaining information from the CI, and the hearing was scheduled for August 22, 2011.

¶ 4 On August 8, 2011, the CI made an attempt to contact Respondent over the phone at his office and left a message concerning her disagreement with defense counsel, who she felt was improperly pressuring her. Concerning the call, Respondent's secretary sent him a text message that morning that she received an interesting call regarding defense counsel.

¶ 5 Respondent returned the call on the following day, August 9, and he left a message for the CI with the CI's supervisor. The CI called the Respondent back that day, and a conversation occurred at which Respondent's paralegal was also present. Although the evidence indicates Respondent did not discuss the defense or defense strategy with the CI, it does indicate they discussed the CI's assertion that the defense was pressuring her and the CI's desire to be represented by counsel. The CI also revealed to Respondent information she had learned about the Defendant's birth mother. At least two other conversations occurred between the Respondent and CI without another witness present, prior to the August 22 hearing, where Respondent informed the CI that the State would not pay for her legal representation. The CI hired private counsel to represent her on or about August 18, 2011.

¶ 6 Respondent did not disclose his conversations with the CI with his co-counsel until they were on the way to the August 22, 2011, hearing. Respondent's co-counsel was left with the impression that Respondent had only spoken to the CI once. Respondent did not disclose his conversations with the CI to defense counsel or the court prior to the hearing because he did not believe he had an obligation to do so. Only at the hearing on August 22, 2011, did Respondent indicate that he had spoken with the CI, drawing concern from both counsel for the defense and the court. The CI contacted the Respondent once more on August 30, 2011, while she was represented by counsel who was apparently aware she intended to discuss once more the possibility of obtaining counsel through the State.

¶ 7 On September 9, 2011, the defense counsel filed a motion to recuse the prosecutor and to appoint a new confidential intermediary. The motion sought the recusal of both Respondent and the AG's office, due to Respondent's contact with the CI. At this point, it appears defense counsel was aware of only one contact between the Respondent and the CI.

¶ 8 Respondent apparently believed the only thing relevant to his office's consideration of the motion to recuse was whether he

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had received confidential information about the defense. As a result, he believed only his first conversation with the CI was substantive and relevant. The result of Respondent's conclusion was that he continuously failed to reveal that he had engaged in more than one conversation with the CI to his colleagues. Respondent and his co-counsel jointly filed a response to the motion to recuse on September 22, 2011, which respondent signed, mentioning only one conversation between the Respondent and the CI and making no mention of a witness.

¶ 9 After further investigation and discussion, Respondent revised, finalized, and signed an affidavit that for the first time indicated his paralegal had witnessed the first conversation. Respondent claimed he did not remember this fact until that date. Even so, this affidavit failed to disclose his other conversations with the CI that would later be revealed by an examination of phone records.

¶ 10 The last-minute nature of these revelations caused some concern at the AG's office. By May 3, 2012, the AG's office removed Respondent from the case and named his co-counsel as lead counsel. On June 26, 2012, the CI's attorney provided CI's cellphone records to the defense and to the State, revealing Respondent's other phone communications with the CI. Because the records indicated phone calls that had not been detailed in Respondent's affidavit, the state filed a supplemental response to the Motion to Recuse Prosecutor in order to clarify the record. On August 6, 2012, the State filed a Notice of Withdrawal of Capital Allegation, and the court accepted the defendant's guilty plea to second degree murder and ordered a mitigated sentence of eleven years imprisonment. One of the mitigating factors cited by the court was Respondent's apparent misconduct. The court also referred the matter to the Arizona Bar requesting that it conduct an investigation into the matter.

¶ 11 In an Agreement for Discipline by Consent filed on February 14, 2014, Respondent conditionally admitted to the facts and conditionally admitted that his conduct violated Rule 42, Ariz. R. Sup.Ct., specifically ER 8.4(d)³ , in exchange for a ninety (90) day suspension from the practice of law. Respondent was suspended from the practice of law in Arizona for ninety (90) days and ordered to pay costs by a Final Judgment and Order entered on February 28, 2014. An amended Final Judgment and Order was entered on March 5, 2014. Though Respondent did not notify the OBA of the Arizona disciplinary matter by mail until March 31, 2014, he spoke with and reported his discipline to an Assistant General Counsel of the OBA by telephone on March 20, 2014, within the twenty-day period required by Rule 7.7(a).⁴

350 P.3d 135

¶ 12 This Court issued an opinion on December 16, 2014, suspending Respondent from the practice of law in Oklahoma for two years and one day. Respondent filed a petition for rehearing on December 23, 2014, alleging that this Court violated Respondent's right to due process by suspending him from the practice of law without directing him to show cause why he should not be disciplined pursuant to Rule 7.7(b), RGDP, 5 O.S.2011, Ch. 1, App. 1–A.

¶ 13 After ordering the OBA to respond and considering the issue, this Court granted Respondent's petition for rehearing by order on January 20, 2015, withdrawing the opinion and ordering Respondent to show cause why he should not be disciplined by this Court. Both parties have now had ample opportunity to respond with briefs and evidence, and they have done so. Upon examination, we agree with the OBA's assertion that the record is complete and sufficient for de novo review by this Court.

II.

JURISDICTION AND STANDARD OF REVIEW

¶ 14 The Supreme Court of Oklahoma possesses a nondelegable, constitutional responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this state. State ex rel. Okla. Bar Ass'n v. Wilcox, 2014 OK 1, ¶ 2, 318 P.3d 1114 ; State ex rel. Okla. Bar Ass'n v. McArthur, 2013 OK 73...