State ex rel. Oklahoma Bar Association v. Jack, 011921 OKSC, SCBD-6896

Docket NºSCBD-6896
Opinion JudgeROWE, J.
Party NameSTATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complaint, v. TARA K. JACK, Respondent.
AttorneyGina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. Allen M. Smallwood, Smallwood Law Office, Tulsa, Oklahoma, for Respondent.
Judge PanelDarby, C.J., Kane, V.C.J., Kauger, Winchester, Edmondson, Combs (by separate writing), Gurich, JJ., concur; Colbert, J., not present. COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring:
Case DateJanuary 19, 2021
CourtSupreme Court of Oklahoma

2021 OK 1

STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complaint,

v.

TARA K. JACK, Respondent.

No. SCBD-6896

Supreme Court of Oklahoma

January 19, 2021

UNPUBLISHED OPINION

BAR DISCIPLINARY PROCEEDING

Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Allen M. Smallwood, Smallwood Law Office, Tulsa, Oklahoma, for Respondent.

ROWE, J.

¶0 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association, charged Respondent, Tara K. Jack, with three counts of professional misconduct, all involving her failure to properly supervise nonlawyer employees under her direct supervision and allowing them to engage in the unauthorized practice of law. The Professional Responsibility Tribunal recommended Respondent be publicly censured. We hold there is clear and convincing evidence that the totality of Respondent's conduct warrants public censure. Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final.

¶1 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association began disciplinary proceedings pursuant to Rule 6, Rules Governing Disciplinary Proceedings ("RGDP"), 5 O.S.2011 ch. 1, app. 1-A, alleging three counts of professional misconduct against Respondent, Tara K. Jack. Respondent is an active member of the Oklahoma Bar Association and is currently in good standing. Complainant's allegations arise from Respondent's allowance of unlicensed prosecutors under her direct supervision at the Tulsa County District Attorney's office to engage in the unauthorized practice of law. Complainant alleges Respondent's actions are in violation of the Oklahoma Rules of Professional Conduct ("ORPC"), 5 O.S.2011, ch. 1, app. 3-A, and the RGDP and are cause for professional discipline.

Procedural History

¶2 Complainant filed its formal Complaint with the Office of the Chief Justice on January 23, 2020, which contained three counts of alleged misconduct related to Respondent's supervision of five individuals engaged in the unauthorized practice of law. Respondent filed an answer to the Complaint on February 11, 2020.

¶3 On March 11, 2020, the Professional Responsibility Tribunal ("Tribunal") held a hearing on the allegations contained in the Complaint, pursuant to Rule 6, RGDP. On June 5, 2020, the Tribunal filed its report wherein it found that Complainant had established by clear and convincing evidence that Respondent violated Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC, and Rule 1.3, RGDP. The Tribunal unanimously recommended that Respondent be publicly censured.

Standard of Review

¶4 This Court possesses exclusive jurisdiction in Bar Association disciplinary proceedings. State ex rel. Okla. Bar Ass'n v. Holden, 1995 OK 25, ¶10, 895 P.2d 707, 711. We review the evidence de novo to determine whether the allegations of misconduct have been established by clear and convincing evidence. Rule 6.12(c), RGDP; State ex rel. Okla. Bar Ass'n v. Bolusky, 2001 OK 26, ¶7, 23 P.3d 268, 272. 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." State ex rel. Okla. Bar Ass'n v. Green, 1997 OK 39, ¶5, 936 P.3d 947, 949.

¶5 Our goals in disciplinary proceedings are to protect the interests of the public and to preserve the integrity of the courts and the legal profession, not to punish attorneys. State ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶15, 212 P.3d 1186, 1192. We consider the discipline previously imposed for similar professional misconduct to ensure that discipline is administered uniformly. Id. at ¶16, 212 P.3d at 1192 (citing State ex rel. Okla. Bar Ass'n v. Doris, 1999 OK 94, ¶37, 991 P.2d 1015, 1025). Discipline, however, is decided on a case-by-case basis to account for differences in the offending conduct and mitigating circumstances. Id.

Background

¶6 Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division.

I. Count I: The Sweeney Grievance

¶7 Among the employees under Respondent's supervision was Kelly Sweeney. Sweeney was hired as a Provisional Assistant District Attorney by the Tulsa County District Attorney's office on August 1, 2018, and assigned to the Traffic and Misdemeanor division. The "Provisional Assistant District Attorney" title was an unofficial designation applied within the Tulsa County District Attorney's office to individuals who were hired as Assistant District Attorneys but were not yet licensed to practice law. At the time of her hiring, Sweeney had recently graduated from The University of Tulsa College of Law and taken the July 2018 Oklahoma Bar Exam. Sweeney was not a licensed legal intern 1 at the time, or at any time previously, and she did not hold any special permit to practice law in Oklahoma. On September 7, 2018, Sweeney learned that she failed the Oklahoma Bar Exam, but she remained employed at the Tulsa County District Attorney's office.

¶8 Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments.

¶9 On November 13, 2018, Sweeney presented a complaint about a defense attorney to Special Judge April Seibert, who had presided over the jury trial the previous week. During her conversation with Judge Seibert, Sweeney indicated that she was not licensed to practice as an attorney, legal intern, or otherwise. Judge Siebert directed Sweeney to immediately cease engaging in any activities that would constitute the practice of law. Judge Siebert then contacted Respondent and First Assistant District Attorney Erik Grayless and advised them of what Sweeney had told her. Both Respondent and Grayless indicated to Judge Seibert that they were not aware Sweeney was practicing without a license.

¶10 Following his conversation with Judge Seibert, Grayless initiated an internal investigation in the District Attorney's office to determine if other employees were engaging in the unauthorized practice of law. The internal investigation revealed that at least two other employees, Randall Young and Michael Shouse, had engaged in the unauthorized practice of law. At some point in November 2018, Grayless contacted the Oklahoma Bar Association and submitted a voluntary disclosure that employees of the District Attorney's office who were not licensed to practice law had represented the State of Oklahoma in criminal proceedings.

II. Count II: The Young Grievance

¶11 In or around April 2018, Randall Young was hired by the District Attorney's office and assigned to Respondent's division. At the time of his hiring, Young was a third year law student at the University of Tulsa College of Law. Young graduated from law school in May 2018 and took the July 2018 Oklahoma Bar Exam. Young learned that he passed the Bar Exam on September 7, 2018, and was sworn in on September 25, 2018. Prior to his swearing-in, Young had never held a license to practice law in Oklahoma, as a legal intern or otherwise.

¶12 Despite being unlicensed at the time, Young began representing the State of Oklahoma in criminal proceedings in August 2018. Prior to his swearing-in on September 25, 2018, Young made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On August 27 and 28, 2018, Young, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Young questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented a closing argument. On September 7, 2018, Young represented the State in a non-jury trial, during which he examined witnesses and presented evidence to the court.

III. Count III: The James, Deane and Shouse Grievance

¶13 In September 2017, Johnnie James was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, James was a licensed attorney in North Carolina, but he was not licensed in Oklahoma. James applied for a temporary permit 2 to practice in Oklahoma until he could take the Oklahoma Bar Exam. His application was initially denied, but after appealing the decision, James was granted a temporary permit to practice...

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