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

• Decision Date: 30 June 2015
• Docket Number: No. SCBD–6223.,SCBD–6223.
• Citation: 2015 OK 50,352 P.3d 1210
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James M. DEMOPOLOS, Respondent.
• Court: Oklahoma Supreme Court

352 P.3d 1210

2015 OK 50

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant

v.James M. DEMOPOLOS, Respondent.

No. SCBD–6223.

Supreme Court of Oklahoma.

June 30, 2015.

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

John W. Coyle, III, Coyle Law Firm, Oklahoma City, Oklahoma, for Respondent.

Opinion

EDMONDSON, J.

¶ 1 The Respondent, a lawyer licenced to practice law in Oklahoma, pled guilty to three misdemeanors and the Bar Association sought to have his Bar license immediately suspended with a two-year suspension by commencing a proceeding authorized by Rule 7 of the Rules Governing Disciplinary Proceedings. We previously entered an order of interim suspension. After review of the record made before the trial panel of the Professional Responsibility Tribunal, we conclude that the appropriate discipline is a suspension of one year with an additional deferred professional suspension for one year conditioned upon Respondent's compliance with conditions relating to his conduct and rehabilitation.

¶ 2 A criminal Information was filed against the Respondent, James M. Demopolos, in the District Court for Oklahoma County.¹ One count was dismissed² and he pled guilty to violating: (1) 21 O.S. § 540, obstructing a public officer;³ (2) 21 O.S. § 1378(B), threatening to perform an act of violence involving or intended to involve serious bodily harm or death;⁴ and (3) 21 O.S. § 644(C), domestic abuse assault and battery.⁵ Upon Respondent's guilty plea, the District Court deferred its two-year sentence until its review on January 6, 2017, and ordered Respondent to pay specific fines and costs. The court ordered he be placed under the supervision of the Oklahoma Department of Corrections and successfully complete a 52–week Batterers Intervention Program⁶ with substance abuse testing.

¶ 3 A lawyer who has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement is subject to professional discipline when the crime demonstrates such lawyer's unfitness to practice law.⁷ The clerk of any court in this State in which a lawyer is convicted or as to whom proceedings are deferred is required to “transmit certified copies of the Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and judgment and sentence of conviction to the Chief Justice of the Supreme Court and to the General Counsel of the Oklahoma Bar Association within (5) days after said conviction.”⁸ The transmitted copies received by the Bar Association are filed in this Court by the Bar Association.⁹ The Bar Association filed in this Court copies of the Information and Guilty Plea from Respondent's criminal case.

¶ 4 Upon receipt of the specified documents from a lawyer's criminal case, this Court enters an interim order of suspension that immediately suspends the lawyer from practicing law, and the lawyer is provided with an opportunity to show cause why the order of suspension should be set aside.¹⁰ This Court entered an interim suspension order on February 2, 2015, and provided Respondent with an opportunity to object to the interim suspension and request a mitigation hearing before a trial panel of the Professional Responsibility Tribunal (PRT).¹¹ Respondent filed a waiver of his opportunity to object to the interim suspension, and he requested a mitigation hearing. A trial panel of the PRT held a mitigation hearing with Respondent being represented by counsel. After that hearing, both the Bar and Respondent filed their briefs in this Court addressing evidence at the hearing and legal argument concerning the appropriate professional discipline.

I. The Court's Rule 7 Review of Respondent's Conduct

¶ 5 This Court has exclusive original jurisdiction over Bar disciplinary matters.¹² Protecting the public and purification of the Bar are the primary purpose of disciplinary proceedings rather than punishment of the offending attorney.¹³ In Bar disciplinary proceedings, this Court will conduct a de novo review of the record to determine if misconduct has occurred and what discipline is appropriate.¹⁴ Pursuant to Rule 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), Respondent's Guilty Plea constitutes conclusive evidence of the commission of the crimes that serve as the basis for professional discipline, and with the additional documents filed in this Court there is a sufficient record for our review of Respondent's Bar proceeding.¹⁵

¶ 6 The evidence before the trial panel was that one Saturday evening in May of 2014, Respondent was verbally abusive and consuming alcohol. His condition caused his wife to leave their residence and spend the night with a relative. Upon her return the next morning she made a 911 telephone call seeking help because Respondent was drunk, verbally abusive, and physically abusive having hit her in her arm and head with his closed hand.

¶ 7 The police arrived and observed his intoxicated state. He made threats of physical violence against his wife in the presence of the police, including statements describing what he would do to her when he was no longer in custody. They noticed a bruise on his wife consistent with her complaint. The police sought identifying information from him and he responded with a contemptuous epithet. He admitted to the police that he had hit his wife. These facts served as a basis for three counts in the Information filed against him and his subsequent guilty pleas.

¶ 8 Although this Court's previous order of interim suspension is a determination that Respondent's admitted criminal conduct facially demonstrates his unfitness to practice law, we also examine all of his conduct in light the evidence submitted at the post-mitigation hearing for our determination of the proper professional discipline for Respondent.¹⁶ There are two basic issues in this summary disciplinary proceeding: does the conviction demonstrate the lawyer's unfitness to practice law, and if so, what is the proper professional discipline.¹⁷ We do not adjudicate the existence of facts which gave rise to the criminal charges.¹⁸

¶ 9 In Givens we explained that “Violent acts in the form of domestic abuse demonstrate a lawyer's unfitness to practice law. We most recently found, ‘[a]s incidents of domestic ... abuse rise and become the focus of ... public attention, it becomes more incumbent on this Court to protect the public by sending a message to other lawyers that this misconduct is considered a serious breach of a lawyer's ethical duty and will not be tolerated.’ ”¹⁹ Twenty-five years ago this Court discussed criminal convictions that demonstrate unfitness to practice law; and we noted language appearing in a Comment to one of our Rules of Professional Conduct that was also cited recently in Givens: “... Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty or breach of trust, or serious interference with the administration of justice are in that category.”²⁰

¶ 10 A lawyer's guilty plea or criminal conviction for a violent act of domestic abuse is a violation of the Oklahoma Rules of Professional Conduct, 5 O.S. Ch. 1, App. 3–A, Rule 8.4(b).²¹ Respondent's guilty plea for a violent act of domestic abuse merits professional discipline imposed by this Court.

II. The Court's Rule 7 Review of Respondent's Conduct and Mitigation of Professional Discipline

¶ 11 The evidence at the mitigation hearing was that Respondent had practiced law since 1978 and had no previous complaints for professional discipline. Respondent had previously worked as an oil and gas title lawyer, and no allegations have been made that his conduct has injuriously affected a client. Respondent is currently employed as a landman, and he works on title examinations authored by his employer who is a lawyer. An affidavit was submitted to show that Respondent has been compliant with the Lawyers Helping Lawyers program. A lawyer testified concerning Lawyers Helping Lawyers and Respondent's participation in the program.

¶ 12 A lawyer testified that he became Respondent's sponsor in Alcoholics Anonymous (AA). He explained that Respondent had made progress in that program. The evidence shows that Respondent's continuous participation in AA had been for less than a year at the time the mitigation hearing occurred. Another lawyer testified that he had shared an office with, and rented an office to, Respondent for several years. He stated that he had never seen him consume alcohol while working, or show any indication that alcohol had affected his practice of law.

¶ 13 The evidence at the mitigation hearing also included Respondent's previous chronic use of marijuana as well as his use of sedatives. Respondent successfully completed a thirty-day in-patient treatment program for substance abuse after his arrest. However, he had two relapses

of consuming alcohol shortly after returning home after treatment, and these two events occurred approximately five months prior to the mitigation hearing. The evidence showed that immediately after the relapses he continued with attending his AA meetings and informed his AA sponsor of the events. The record shows that Respondent has not failed any of his post-conviction drug tests, and testimony shows that he has not used marijuana or sedatives after his in-patient treatment.

¶ 14 Testimony at the hearing included an incident that occurred eleven years earlier when Respondent had been drinking alcohol and was arrested after having a physical altercation with a male relative. No criminal charges were filed relating to this arrest.

¶ 15 Testimony at the hearing from both Respondent and his wife showed that Respondent had previously pushed, shoved, and slapped his wife when he was drinking...