State ex rel. Okla. Bar Ass'n v. Bailey
| Decision Date | 04 April 2023 |
| Docket Number | SCBD-6776 |
| Citation | 2023 OK 34 |
| Parties | STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. MARK KENDALL BAILEY, Respondent. |
| Court | Oklahoma Supreme Court |
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
PROFESSIONAL DISCIPLINARY PROCEEDING
Loraine Dillinder Farabow, First Assistant General Counsel Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
Tom M Cummings, Oklahoma City, Oklahoma, for Respondent.
¶0 Respondent is an attorney licensed to practice law as a member of the Oklahoma Bar Association. The Oklahoma Bar Association's Second Amended Complaint against respondent alleged eight counts of professional misconduct. A hearing was held before a trial panel of the Professional Responsibility Tribunal. The panel found the allegations on all counts to be established and recommended respondent be suspended for the practice of law for two years and one day. We hold: The evidence is clear and convincing respondent violated several provisions of the Oklahoma Rules of Professional Conduct and Rules Governing Disciplinary Proceedings, and the proper discipline is to disbar respondent and order him to pay the costs of the proceeding.
¶1 Respondent is currently a lawyer licensed by this Court. Allegations of professional misconduct against respondent are made in a second amended complaint filed by the Bar Association. This complaint is fifty pages long with 233 numbered paragraphs, and in its eight Counts it lists numerous violations of various ethical rules for lawyers.
¶2 Respondent states no misconduct occurred, raises issues of both fact and law, and challenges facts raised by the Bar as well as the Bar's understanding of rules of professional conduct. Respondent also makes a procedural challenge as well as raising an affirmative defense. The controverted issues of fact and law presented by Bar and respondent for this Court to adjudicate involve all of the allegations made by the Bar against respondent in the fifty-page complaint. [1]
¶3 We conclude the evidence presented shows respondent violated various rules: Count One, RGDP, Rule 1.3 and a diversion agreement; Count Two, ORPC, Rules 1.4, 1.5, 1.15, 1.16(d), 8.1 (b), and RGDP, Rules 1.3, and 5.2; Count Three, ORPC Rules 1.1, 1.4, 1.5, 1.15(c) & (d), 1.16(d), 3.1, 8.4(c) & (d), and RGDP, Rules 1.3 and 5.2; Count Four, ORPC, Rules 1.4, 1.5, 5.3, 8.1(b), 8.4(c), and RGDP, Rules 1.3 and 5.2; Count Five, ORPC, Rules 1.1, 1.3, 1.4, 1.5, 1.16(d), 3.1, 5.3, 8.1(b), 8.4(d) & (e), and RGDP, Rules 1.3 and 5.2; Count Six, ORPC, Rules 1.3, 1.4, 1.5, 8.1(b), and RGDP, Rules 1.3 and 5.2; Count Seven, ORPC, Rules 1.1, 1.3, 1.4. 1.5, 1.16(d) 8.1(b), 8.4(c), and RGDP, Rule 1.3; Count Eight, ORPC, Rules 3.4, 8.4(b) and (d), and RGDP, Rule 1.3.
¶4 We conclude the appropriate discipline required is to disbar respondent and strike his name from the roll of attorneys. The Bar filed a motion to tax costs in the amount of $24,797.81, and the motion is granted. Respondent is ordered to pay costs of the proceedings in the sum of $24,797.81.
¶5 A trial panel of the Professional Responsibility Tribunal held a hearing during nine days and found each of the eight Counts to be established by clear and convincing evidence. The trial panel recommended discipline in the form of respondent's suspension from the practice of law for two years and one day.
¶6 This Court possesses an exclusive, original, and nondelegable constitutional responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this state. [2] We review the entire record in the professional disciplinary proceeding. [3] The Court considers de novo every aspect of a disciplinary inquiry, and the findings of fact, conclusions of law, and recommendation of discipline made by a trial panel of the Professional Responsibility Tribunal are neither binding nor persuasive for this Court's review. [4]
¶7 This Court's de novo review includes the evidence presented, stipulations, trial panel report, pleadings, briefs, and additional filings by the parties to determine whether the Bar Association met its burden for showing a respondent's professional misconduct. [5] Allegations of professional misconduct must be shown by clear and convincing evidence when the allegations and evidence are used to impose professional discipline. [6] Generally, "clear and convincing evidence is that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." [7] This Court weighs the evidence as a tribunal of first instance exercising original and exclusive jurisdiction. [8]
¶8 Respondent's brief may be summarized: (1) The Bar's Second Amended Complaint is improper and should be stricken; (2) Laches should apply to a grievance made against him; (3) Testimony against respondent by former clients, former employees, and witnesses for the Bar Association is not credible, or inaccurate, or fails to show misconduct; (4) No professional misconduct occurred and the proceeding against him should be dismissed; (5) If the Court determines professional misconduct occurred, then such conduct does not warrant the recommended discipline of a suspension from the Bar Association for two years and one day. Respondent agrees we must weigh the value of all testimony for the purpose of applying a clear and convincing evidentiary standard, and he asserts his testimony should be viewed as credible and the testimony against him as not clear and convincing. [9]
¶9 Respondent's post-hearing brief argues the Bar's Second Amended Complaint is a procedural nullity. He alleges this amendment was untimely, without leave of a court, and without his consent. He relies upon Rule 6.5 of the Disciplinary Rules, 12 O.S. § 2015 (A) in the civil pleading code, and our opinions stating an amendment to a pleading will be a nullity if its filing requires trial court approval or an opposing party's consent and the amendment is filed without the required approval or consent. [10] Respondent argues due process of law requires the construction he gives to Rule 6.5 and § 2015.
¶10 Respondent's procedural challenge to the second amended complaint is without merit, and some of the reasons why this is so include the following: (1) Respondent consented to the second amendment to the complaint, [11] and to allow a respondent to consent to a trial panel procedure and after such proceedings object to the same procedure is one type of invited error, and "would be an abuse and manipulation of the judicial process," unless respondent is able to show a law or fact which vitiates consent; [12] (2) He failed to properly file an answer to the new allegations in the second amended complaint and made no objection to the procedure in his answer to that complaint filed in this Court; [13] (3) He failed to properly answer the new allegations and made no objection to the procedure in his unfiled answer which appears as an exhibit before the trial panel, [14] (4) He waived a procedural Disciplinary Rule 6.5 objection when he failed to make an objection to the second amended complaint both before and at his trial panel hearing; [15] (5) He did not raise or show any prejudice caused by the procedure, and facts necessary to show prejudice must be raised before the trial panel, [16] and (6) He failed to allege and show an improper procedure by the Professional Responsibility Commission in authorizing amended complaints. [17]
¶11 Certain procedural rights in litigation may be defined as primarily personal rights and may be waived by the person possessing the right, [18] including personal due process rights, [19] unless the waiver of the right is contrary to public policy because of the nature of the right, or the particular method used for the waiver, or some other legally cognizable reason. [20] Respondent has not shown his alleged procedural error involves a right, or a procedure, or a public policy which would prevent a waiver by respondent's actions.
¶12 Respondent's brief does not refer to any argument before the trial panel, or in the brief itself, relating to prejudice caused by the procedure for filing the amended complaints. Alleged procedural errors are usually examined to determine the presence of prejudice to the interests of an objecting party. [21] Although prejudice for the purpose of showing error may be presumed in certain circumstances, [22] no argument is advanced by respondent in his brief explaining why the Professional Responsibility Commission (PRC) and then the trial panel scheduling amended complaints to be filed after additional discovery is the type of error which is, or deemed to be, inherently prejudicial as a procedure, or prejudicial as applied to him in this case. Respondent's due process challenge is without merit.
¶13 Respondent's reliance upon laches is without merit. Assuming laches, an equitable affirmative defense to a claim in equity, [23] could apply in a lawyer disciplinary proceeding which is a non-civil sui generis proceeding, [24] then respondent as the party raising the defense would have the burden of proof [25] showing unreasonable delay and prejudice to respondent. Interposing laches as a defense requires proof of unreasonable delay by the party pressing the claim and prejudice to the party asserting the defense. [26] Laches does not arise from a mere delay or lapse of time. [27] A party's...
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