State ex rel. Okla. Bar Ass'n v. Moon, SCBD No. 5847.

• Decision Date: 18 September 2012
• Docket Number: SCBD No. 5847.
• Citation: 295 P.3d 1
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Lewis B. MOON, (a.k.a.“L.B. Moon”), Respondent.
• Court: Oklahoma Supreme Court

295 P.3d 1

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Lewis B. MOON, (a.k.a.“L.B. Moon”), Respondent.

SCBD No. 5847.

Supreme Court of Oklahoma.

Sept. 18, 2012.

ORIGINAL PROCEEDING FOR DISCIPLINE.

¶ 0 Over a period of approximately three years, the respondent, Lewis B. Moon (attorney/Moon), was arrested twice, first in Oklahoma and subsequently in Wyoming, for alcohol-related incidents involving the operation of a motor vehicle and was issued citations for a third situation after wrecking a vehicle and leaving the scene of the accident. In 2009, following the Wyoming arrest, the attorney pled guilty to driving under the influence receiving two years unsupervised probation. In November of 2011, Moon entered a negotiated plea of guilty to two misdemeanor counts in exchange for dropping of two felony charges arising from the Oklahoma arrest. The attorney received a two year deferred sentence to be served under supervision of the District Attorney's office. The complainant, Oklahoma Bar Association (Bar Association), filed a three count Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A, formal proceeding alleging violations of Rule 8.4(b), Rules Governing Professional Conduct, 5 O.S.2011, Ch. 1, App. 3–A and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A. The parties entered into joint stipulations regarding the charges and an agreement for a recommended discipline of public censure, a year's probation with conditions, and the payment of costs. The trial panel joined in the stipulated recommendation for discipline. The gravamen of each of the three counts brought against the respondent revolves around the abuse and misuse of alcohol, specifically during the operation of a motor vehicle. Upon de novo review, we hold that the clear and convincing evidence supports charges relating to the respondent's driving while under the influence along with attempts, on the occasion of both arrests, to achieve favorable treatment by indicating an ability to influence improperly one or more government officials. We determine the appropriate discipline as public censure, a deferred suspension of two years and one day under conditions intended to assist the attorney in maintaining his sobriety and to protect the public, and the payment of $1,459.55 in costs.

DISCIPLINED BY PUBLIC REPRIMAND, DEFERRED SUSPENSION OF TWO YEARS AND ONE DAY SUBJECT TO TERMS, AND COSTS IMPOSED.

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

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

ORDER

¶ 1 On September 18, 2012, we promulgated State ex rel. Oklahoma Bar Ass'n v. Moon, 2012 OK 77, 295 P.3d 1. In Moon, the attorney was publicly censured and a deferred suspension period of two years and one day was imposed. During the period of suspension, Moon was ordered to: refrain from any and all use of alcohol or mind-altering substances; not partake of any illegal drugs; maintain participation in Alcoholics Anonymous, attend weekly meetings; sign and comply with conditions of a contract with Lawyers Helping Lawyers; complete any outpatient treatment program in which he was enrolled; waive all questions of confidentiality permitting notification to the General Counsel of the Oklahoma Bar Association of any default in terms of probation or deferred suspension; and pay costs of $1,459.55.

¶ 2 The complainant, Oklahoma Bar Association (Bar Association), filed an application for an order of interim suspension on September 19, 2012. The complaint and request for suspension was based on the filing of a criminal information on September 18, 2012 charging the respondent, Lewis B. Moon (Moon/attorney), with impersonating a police officer and disturbing the peace. On October 15, 2012, we issued an order in the cause referring the matter to the Professional Responsibility Tribunal for an expedited hearing on the suspension request.

¶ 3 On October 19, 2012, the Bar Association filed a Notice of Respondent's Breach of Terms of Deferred Sentence alleging that Moon, while in a state of intoxication, assaulted and battered a fellow attorney. An affidavit supporting the allegations also asserted that Moon threatened members of the attorney's family. The incident, which occurred on October 7th, is currently under investigation by the Oklahoma County District Attorney's Office.

¶ 4 In an attempt to protect the public, while at the same time affording Moon his due process, we determine that the issue of the attorney's breach of conditions imposed by State ex rel. Oklahoma Bar Ass'n v. Moon, 2012 OK 77, 295 P.3d 1, which may support suspension for a period of two years and one day, be combined with the matters currently before the Professional Responsibility Tribunal in the Interim Suspension proceeding. During the combined proceedings, the Professional Responsibility shall make all inquiries as directed of both the respondent and of the Bar Association as specifically set forth in the order of October 15, 2012.

¶ 5 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: the instant cause is referred to the Professional Responsibility Tribunal for consideration with the matter concerning interim suspension transferred by this Court's order of October 15th, 2012.

¶ 6 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 25 DAY OF OCTOBER, 2012.

ALL JUSTICES CONCUR.

WATT, J.:

¶ 1 The Bar Association filed a three-count, Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A,¹ complaintagainst the attorney. It alleged the attorney violated Rule 8.4(b), Rules Governing Professional Conduct, 5 O.S.2011, Ch. 1, App. 3–A [criminal act reflecting adversely on a lawyer's honesty, trustworthiness, or fitness as an attorney] ² and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A [engaging in acts reflecting adversely upon the legal profession, whether in a professional capacity or otherwise].³ Although only two of the three counts arise from the respondent's having been arrested for driving while under the influence, all three charges involve misuse of alcohol while operating an automobile. At the hearing before the trial panel, the parties entered joint stipulations regarding the facts surrounding the charges and the recommendation for discipline.

¶ 2 In consideration of the facts and upon de novo review,⁴ we hold that the clear and convincing evidence ⁵ supports the criminal charges relating to driving while under the influence and bringing disrepute on the legal profession. Furthermore, on the occasion of both arrests, the undeniable evidence demonstrates that the attorney also violated subsection (e) of Rule 8.4⁶ in his attempt to achieve favorable treatment by stating his ability to influence improperly one or more government officials. As to discipline, we determine public censure and a deferred sentence of two years and one day appropriate during which the attorney shall: refrain from any and all use of alcohol or mind-altering substances; not partake of any illegal drugs; maintain participation in Alcoholics Anonymous, attending weekly meetings; sign and comply with conditions of a contract with Lawyers Helping Lawyers; complete any outpatient treatment program in which he is currently enrolled; waive all questions of confidentiality permitting notification to the General Counsel of the Oklahoma Bar Association of any default in the terms of probation or deferred suspension; ⁷ and pay costs of $1,459.55. The respondent should understand that if, during the the upcoming two years and one day, he violates any term or condition of the deferred suspension, the complainant has a duty to notify this Court of the breach. At that time, we will immediately consider a suspension of the attorney's license to practice law for a period of up to two years and one day.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Moon was admitted to the practice of law in April of 2004. On February 24, 2012, the Bar Association filed a three-count complaint asserting that the attorney had engaged in criminal acts, outside his professional dealings, adversely reflecting on the legal profession.

¶ 4 On the day of trial, the parties entered in joint stipulations of fact, conclusions of law, and a recommendation for discipline. As to each count, Moon acknowledged that he engaged in misconduct prohibited by Rule 8.4(b), Rules Governing Professional Conduct,⁸ and Rule 1.3, Rules Governing Disciplinary Proceedings.⁹ In its report, filed on June 14, 2012, the trial panel agreed with the stipulated violations and adopted the joint recommendation for discipline. It found that Moon should pay costs of the proceedings, be publicly censured, and placed on one year of probation during which time he would complete and abide by the following conditions: refrain from drinking alcohol or using any drug or medication not prescribed by his physician; not violate any law or any term of his criminal probation; continue active involvement in the Lawyers Helping Lawyers Program; regularly attend and actively participate in Alcoholics Anonymous for the balance of his criminal probation and complete Valley Hope's Continuing Care Rehabilitation Treatment Program; not violate any professional or disciplinary rules; and comply with any condition this Court deems appropriate.

¶ 5 The Bar Association filed its brief in chief on July 9, 2012. The briefing cycle was completed on July 31, 2012 with the Bar Association's notice that it would waive the filing of a reply brief.

JURISDICTION AND STANDARD OF REVIEW

¶ 6 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.¹⁰ Our determinations are made de novo.¹¹ We bear the ultimate responsibility for...