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

• Decision Date: 01 February 2022
• Docket Number: O.B.A.D. No. 2323,S.C.B.D. No. 7041
• Citation: 503 P.3d 1201
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Brecken A. WAGNER, Respondent.
• Court: Oklahoma Supreme Court

503 P.3d 1201

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

v.Brecken A. WAGNER, Respondent.

O.B.A.D. No. 2323

S.C.B.D. No. 7041

Supreme Court of Oklahoma.

FILED FEBRUARY 1, 2022

Stephen L. Sullins, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Debbie Maddox, Oklahoma City, Oklahoma, for Respondent.

EDMONDSON, J.:

¶1 Respondent is an attorney licensed to practice law and a member of the Oklahoma Bar Association. This proceeding was commenced by the Oklahoma Bar Association pursuant to Rules Governing Disciplinary Proceedings (RGDP), Rule 7.1, due to respondent's conviction for the misdemeanor of false reporting a crime in violation of 21 O.S.2011, § 589.¹ Rule 7.1 states a lawyer shall be subject to summary professional discipline when the lawyer is convicted of a crime "which demonstrates such lawyer's unfitness to practice law."² The Oklahoma Bar Association seeks public censure as summary professional discipline for respondent, although the Bar Association also states respondent's conviction does not demonstrate unfitness to practice law. We conclude respondent's conviction does not demonstrate unfitness to practice law and deny the Oklahoma Bar Association's application for summary discipline.

I. Respondent's Conduct and Conviction

¶2 The McAlester Fire Department arrived at a residence to extinguish a fire in its kitchen. An adult female left the residence after stating to a fireman she needed to pick up children at school. A fireman checked for additional fire or persons while moving through the residence and he observed "a possible handgun" on a bed near "drug paraphernalia." The fire department requested the presence of a police officer because of this observation. The fire department continued to work at the scene.

¶3 A responding police officer from the McAlester Police Department arrived and was told an adult female resident previously left the open premises. The police officer was led into the open residence and shown the location of the observed handgun and drug paraphernalia. The police officer exited the residence and telephoned an investigative officer so that the investigator could obtain a search warrant.

¶4 The woman who left the residence telephoned the owner of the residence, S.D., and the owner arrived at the residence accompanied by another individual, B.B., who was identified as a purchaser of the residence. The owner did not reside at the residence at that time. Firemen and police officers were at the residence when S.D. and B.B. arrived, and both individuals were denied access to inside the residence while the police and fire personnel were securing the residence and working the scene of a fire.

¶5 The respondent arrived at the residence and he had a discussion with S.D., B.B., and a police officer. The police officer informed respondent what had been observed in the residence and a police investigation had commenced. The officer directed respondent to leave the premises. Respondent stood on the street adjacent to the residence and telephoned his law partner. Respondent's law partner went to the Pittsburg County Courthouse and appeared before an Associate District Judge for the purpose of making objections to the application for a search warrant of the residence. The judge signed the search warrant after hearing an informal argument from respondent's law partner.

¶6 The respondent returned to the residence from the adjacent street, learned a search warrant had been obtained, and he asked a police officer for a copy of the search warrant for the non-resident owner of the residence. The police officer told respondent a search was commencing, declined to give respondent a copy of the search warrant at that time, and respondent was told he should leave the residence or be arrested.

¶7 Respondent returned to the adjacent street and telephoned the McAlester Police Department. He identified himself as the caller and the owner of the residence as the complaining party for the purpose of his telephone report. Respondent requested a trespass charge be lodged against the police officers executing a search at the residence because he requested a copy of the search warrant and was not provided a copy from the officers at the residence. Respondent then spoke briefly with an investigator at the residence, and respondent left the scene while the police officers continued their search.

¶8 The search occurred on September 16, 2020. A few weeks later on November 3, 2020, respondent was arrested by several McAlester police officers inside the Pittsburg County Courthouse as he left a courtroom after appearing for a client in a different matter. A jury trial of four days was held in the District Court of Pittsburg County on two misdemeanor counts against respondent, obstructing an officer ( 21 O.S. § 540 ) and false reporting a crime ( 21 O.S. § 589 ). The jury found respondent guilty of the misdemeanor of false reporting a crime. A five-hundred dollar fine and court costs were imposed. Respondent was acquitted on the charge of obstructing an officer. The judgment and sentence was entered in March 2021, respondent paid the fine, and he did not appeal the conviction.

II. Filings in Respondent's Disciplinary Proceeding

¶9 The Oklahoma Bar Association (the Bar) filed with the Chief Justice a notice and certified copies of respondent's criminal conviction and sentence. Rule 7 of the Rules Governing Disciplinary Proceedings provides a summary procedure for conducting disciplinary proceedings based upon a lawyer's criminal conviction.³ A Rule 7 proceeding may commence with submission of certified copies of the conviction or deferred sentence to the Chief Justice of this Court.⁴

¶10 Rule 7 also provides the Court "may by order immediately suspend the lawyer from the practice of law until further order of the Court," or alternatively "may direct the lawyer to file a statement, to show cause, if any the lawyer has, why an order of immediate interim suspension from the practice of law should not be entered."⁵ This Court's order directed respondent to show cause why an interim order of suspension should not be entered suspending respondent from the practice of law pending this Court's final determination of discipline.

¶11 Respondent filed a response with an appendix of documents. He simultaneously filed a motion requesting these documents be sealed. The Oklahoma Bar Association replied, noted some of the documents in respondent's appendix were privileged, and argued statements referencing these documents in respondent's response should be redacted.

¶12 Respondent's response and large appendix as well as the Bar's response (reply) were ordered to be provisionally sealed by this Court until further order by the Court. The respondent's response and appendix are currently filed under seal. Respondent's two sealed filings were reviewed by the Court for the purpose of this proceeding but confidential material therein protected from disclosure by a privilege was not considered. Additionally, non-privileged confidential material and non-confidential material were not considered to the extent their content was unnecessary for review of respondent's conviction for the purpose of a Rule 7 proceeding.⁶ The Court's Order of June 22, 2021, states: "Consideration of the motion to seal is deferred to the decisional stage." Respondent's two provisionally sealed filings which were filed under seal shall remain sealed. The Bar's response (reply) was not filed under seal and the Bar did not reply to respondent's issues involving privileged or confidential material.⁷ The Bar instead focused on the issue of respondent's conviction and the issues for a Rule 7 proceeding. The Bar's reply of June 30, 2021, shall not be sealed.

¶13 The Bar replied and argued that respondent "was not being dishonest or deceitful" but "it does appear that Respondent likely crossed the line of being a zealous advocate for his client and handled his interaction with police poorly." The Bar stated: "Although Respondent's behavior could have been better, it does not appear to have eroded the integrity and confidence that the public has in the legal profession." The Bar also stated respondent "has been cooperative during the investigation," "Complainant has not discovered any evidence which would facially demonstrate Respondent's unfitness to practice law," and "Complainant agrees with Respondent that an order of immediate interim suspension is not warranted."

¶14 The Court determined respondent met his first show-cause burden and the Court declined to enter an interim order of suspension. The Court next directed respondent to show cause why a final order of discipline should not be entered. The Court noted respondent may "submit a brief and/or any evidence tending to mitigate the severity of discipline." We also stated "the written return of the lawyer shall be verified and expressly state whether a hearing is desired," and we referenced RGDP, Rule 7.4.⁸ Respondent filed both a response and a separate verified waiver of a mitigation hearing before the Professional Responsibility Tribunal.⁹

¶15 Respondent's response has an attached letter from respondent which indicates his participation in Lawyers Helping Lawyers and goals for his behavior. Respondent argues final professional discipline should not be entered against him by the Court.

¶16 The Bar replied and states "there has been no interruption of respondent's law license since he was admitted" to practice law in 2004. The Bar argues a final order of discipline should be entered and recommended a public censure as professional discipline.

¶17 After respondent filed his response to the show cause order concerning final discipline, an unsolicited pro se appearance in the disciplinary proceeding was made by the Sheriff of Haskell County, Oklahoma. The Court received two letters from the sheriff, the first dated September 20, 2021, and the second October 21, 2021....