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

• Decision Date: 17 December 2019
• Docket Number: SCBD 6553
• Citation: 455 P.3d 903
• Parties: STATE of Oklahoma, EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jackie Dale ELSEY, Respondent.
• Court: Oklahoma Supreme Court

455 P.3d 903

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

v.Jackie Dale ELSEY, Respondent.

SCBD 6553

Supreme Court of Oklahoma.

FILED December 17, 2019

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

Vernon D. Ellis, Adair, Oklahoma, for Respondent.

Winchester, J. ¶1 On August 26, 2015, the Oklahoma Highway Patrol arrested Respondent Jackie Dale Elsey in Cherokee County, Oklahoma for driving a vehicle under the influence of alcohol (DUI) and driving with a revoked license. The Cherokee County District Attorney charged Elsey with a felony DUI and a misdemeanor for driving with a revoked license, and Elsey entered a plea of no contest to both charges. As a result, this Court entered an Order of Immediate Interim Suspension on September 18, 2017, ordering Elsey to show cause why the Court should set aside the interim suspension. Elsey submitted his answer and notified the Court that on August 4, 2017, the Mayes County District Attorney charged Elsey with another felony DUI and a misdemeanor for driving with a revoked license. This Court stayed these disciplinary proceedings pending the resolution of the 2017 criminal charges.

¶2 On January 7, 2019, the Oklahoma Bar Association (OBA) notified the Court of Elsey's plea of guilty to the 2017 Mayes County DUI and revoked license charges. On March 12, 2019, this Court assigned the matter to the Professional Responsibility Tribunal (Trial Panel) to hold a hearing on the limited scope of mitigation. On June 26, 2019, the Trial Panel held a Rule 7 hearing and requested that the OBA submit findings of fact and conclusions of law for consideration. Elsey did not object to the proposed findings and conclusions submitted by the OBA. On August 26, 2019, the Trial Panel filed its report, recommending that this Court lift Elsey's interim suspension and place him on a deferred suspension of two years, subject to stated conditions.

I. FINDINGS

¶3 In 2003, Elsey received his license to practice law in Oklahoma. He practiced law, in good standing, until the date of his interim suspension. Elsey has pled guilty or no contest to five alcohol-related driving offenses since his admission to the OBA. Elsey's history of alcohol-related offenses is as follows:

Cherokee County Case No. CF-2015-548

¶4 The current disciplinary proceedings commenced as a result of this case. On September 17, 2015, the Cherokee County District Attorney charged Elsey with a felony DUI and a misdemeanor for driving with a revoked license, after being involved in a single-vehicle accident. Elsey admitted to the trooper at the scene of the accident that he had a few drinks that day. Elsey was serving a deferred sentence from a 2014 Mayes County alcohol-related offense at the time of the accident. Elsey pled no contest to the 2015 Cherokee County criminal charges and received a five-year deferred sentence. The district court ordered Elsey to complete a victim impact panel, a drug and alcohol assessment, DUI School, community service, and six sessions of counseling. On February 14, 2019, the district court accelerated Elsey's deferred sentence and dismissed the case. Elsey is not currently serving any part of his Cherokee County sentence.

Mayes County Case No. CF-2017-253

¶5 Elsey self-reported this case to the OBA as part of his answer to this Court's show cause order on his immediate interim suspension from his 2015 Cherokee County criminal charges. On August 4, 2017, the Mayes County District Attorney charged Elsey with a felony DUI and misdemeanors for driving with a revoked license, driving left of center, failure to carry insurance, and failure to wear a seatbelt. These charges resulted from Elsey turning right into oncoming traffic, causing another vehicle to stop to avoid an accident. Elsey pled guilty and served a 30-day term in the Mayes County Detention Center. The district court also ordered Elsey to complete inpatient and outpatient treatment and a victim impact panel and ordered him to pay fines and costs. Elsey has not yet paid the fines and costs associated with this case.

Other Alcohol-Related Offenses

¶6 In 2014, the Mayes County District Attorney charged Elsey with a felony DUI and a misdemeanor for driving with a revoked license (Case No. CF-2014-67). Elsey pled guilty and received a deferred two-year sentence. The district court ordered Elsey to complete community service, district attorney supervision, and a victim impact panel. The OBA brought a Rule 7 proceeding against Elsey due to these criminal charges. This Court dismissed the matter, finding the crime did not demonstrate Elsey's unfitness to practice law.

¶7 In 2009, the Mayes County District Attorney charged Elsey with a misdemeanor DUI and a misdemeanor for driving with a revoked license (Case No. CM-2009-293). Elsey pled guilty and received a one-year suspended sentence to run consecutive to a 2008 Mayes County sentence. The district court ordered Elsey to complete community service, a drug and alcohol assessment, and a victim impact panel.

¶8 In 2008, the Mayes County District Attorney charged Elsey with a misdemeanor DUI and misdemeanors for violation of driver's license restrictions, failure to yield from a private drive, failure to wear a seatbelt, and a defective vehicle (Case No. CM-2008-480). Elsey pled guilty to several of the misdemeanors, including the DUI, and received a one-year deferred sentence. The district court ordered Elsey to pay fines and costs.

¶9 Elsey was also charged with transporting an open container in 2000 and driving with a revoked license in 2010. Prior to his admission to the OBA, Elsey had four additional alcohol-related offenses in 1997, 1989, 1986, and 1982. The OBA was unable to find disposition information for these arrests. He self-reported that he had two additional DUI arrests while he served in the Navy.

Mitigation

¶10 After his arrest in 2017, Elsey sought treatment and completed a 28-day residential treatment program at Harbor Recovery Center. Elsey then entered an outpatient treatment program at the U.S. Department of Veterans Affairs (VA) Behavioral Medicine Clinic and resided at 12&12, an addiction recovery center. Elsey tested positive for alcohol upon his admission to 12&12, but he successfully completed the eight-week program. Elsey had monthly appointments with Dr. Elise Taylor at the VA for substance use disorder until October 2018.

¶11 Elsey completed an assessment with Dr. Curtis Grundy, a licensed psychologist, in connection with these proceedings. Dr. Grundy recommended that Elsey continues his involvement with services provided by the VA and resume regular appointments with Dr. Taylor if he transitions back into his legal profession. Dr. Grundy also suggested that Elsey regularly attend Alcoholics Anonymous meetings and obtain a sponsor.

¶12 Elsey testified that he has attended Alcoholics Anonymous meetings and is "talking" about obtaining a sponsorship with another Alcoholics Anonymous member. Elsey also expressed awareness of potential concerns about his sobriety and admitted that he must change his social behavior. Elsey recognized that a probation period would be helpful if this Court lifts his interim suspension and further testified that his family is his support system.

II. STANDARD OF REVIEW

¶13 In disciplinary proceedings, this Court acts as a licensing court in the exercise of our exclusive jurisdiction. State ex rel. Okla. Bar Ass'n v. Garrett , 2005 OK 91, ¶ 3, 127 P.3d 600, 602. Our review of the evidence is de novo , and the Trial Panel's recommendations are neither binding nor persuasive. State ex rel. Okla. Bar Ass'n v. Anderson , 2005 OK 9, ¶ 15, 109 P.3d 326, 330. This Court's responsibility is not to punish an attorney, but to assess the continued fitness to practice law and to safeguard the interests of the public, the courts, and the legal profession. State ex rel. Okla. Bar Ass'n v. Wilburn , 2006 OK 50, ¶ 3, 142 P.3d 420, 422.

III. DISCUSSION

¶14 Elsey's plea of no contest to the 2015 criminal charges and plea of guilty to the 2017 criminal charges serve as the basis for this summary disciplinary proceeding. Rule 7.1 of the Rules Governing Disciplinary Proceedings (RGDP) provides:

A lawyer who has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer's unfitness to practice law, regardless of whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal.

Rule 7, Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A.

¶15 Not every criminal conviction facially demonstrates a lawyer's unfitness to practice law. State ex rel. Okla. Bar Ass'n v. Armstrong , 1990 OK 9, ¶ 8, 791 P.2d 815, 818. In fact, a lawyer should answer only for offenses that indicate lack of characteristics relevant to the practice of law. Rule 8.4, Cmt. 2, Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2011, ch.1, app. 3-A.¹ Answerable offenses typically involve violence, dishonesty, breach of trust, or serious interference with the administration of justice. Id .

¶16 This Court addressed an attorney's discipline for misconduct involving alcohol in a handful of cases. We previously found that a DUI felony conviction does not facially demonstrate unfitness to practice law. State ex rel. Okla. Bar Ass'n v. Cooley , 2013 OK 42, ¶ 13, 304 P.3d 453, 456. However, a pattern of repeated offenses can indicate indifference to an attorney's legal obligation and warrant discipline. ORPC 8.4, Cmt. 2. In cases involving substance abuse, this Court may mitigate the discipline warranted when an attorney recognizes the adverse effect of his substance abuse and cooperates in the treatment for it. State ex rel. Okla. Bar Ass'n v. Giger , 2001 OK 96, ¶ 16, 37 P.3d...