State ex rel. Oklahoma Bar Ass'n v. Livshee, 3939

• Citation: 870 P.2d 770,1994 OK 12
• Decision Date: 25 January 1994
• Docket Number: No. 1120,No. 3939,3939,1120
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Stephen LIVSHEE, Respondent. SCBDOBAD
• Court: Supreme Court of Oklahoma

Page 770

870 P.2d 770

1994 OK 12

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Stephen LIVSHEE, Respondent.

SCBD No. 3939.

OBAD No. 1120.

Supreme Court of Oklahoma.

Jan. 25, 1994.

BAR DISCIPLINARY PROCEEDING

In this disciplinary proceeding brought against a lawyer upon his federal-court conviction for willful failure to file an income tax return, the PRT found that respondent's actions do not reflect adversely on his fitness to practice law, yet recommended that he be suspended for 60 days. On de novo consideration,

RESPONDENT IS ORDERED SANCTIONED BY A SUSPENSION FROM THE PRACTICE OF LAW WHICH IS TO EXTEND FROM THE DATE OF THIS COURT'S POST-CONVICTION ORDER OF INTERIM SUSPENSION TO THE EFFECTIVE DATE OF THIS PRONOUNCEMENT AND BY IMPOSITION OF COSTS.

Dan Murdock, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

O. Christopher Meyers, Lawton, for respondent.

OPALA, Justice.

In this disciplinary proceeding against a lawyer the issues to be decided are: (1) Does the respondent's federal-court conviction of willful failure to file an income tax return demonstrate his unfitness to practice law? and if so, (2) Does our de novo examination of the proceedings held before the Professional Responsibility Tribunal [PRT] incline us to the view that suspension from practice during the time interval between the entry of this court's post-conviction order of interim suspension and the effective date of this pronouncement would constitute a fit sanction to be imposed in this case? We answer both questions in the affirmative.

I THE ANATOMY OF LITIGATION

Stephen Livshee [Respondent or Livshee] pleaded guilty in the United States District Court for the Western District of Oklahoma to one count of willful failure to file an income tax return for 1990, a misdemeanor under the provisions of 26 U.S.C. § 7203, ¹ and was placed on probation for a A trial panel of the PRT found on October 28, 1993 that: (1) Livshee had pled guilty to a federal misdemeanor offense of failing to file an income tax return; (2) the conviction did not "appear to demonstrate his unfitness to practice law " and (3) Livshee's acts which resulted in his conviction did not show "deception and dishonesty." Concluding that Livshee was "guilty of a lack of good moral character and respect for the law," the PRT recommended that he be suspended from the practice of law for a period of 60 days, to run from this court's September 13th post-conviction order of interim suspension.

                period of two years. 2  Acting in conformity to Rule 7.3 3 this court suspended Livshee from the practice of law by its order of September 13, 1993 and directed him to show cause (a) why the post-conviction order of interim suspension should be set aside and (b) a final order of discipline should not be entered.  Livshee was then afforded an opportunity to tender the facts and circumstances in mitigation of the professional discipline to be imposed in an adversary hearing authorized by Rule 7.4. 4  By the terms of Rules 7.1 5 and 7.2 6 a conviction rendering one unfit to practice law constitutes conclusive proof of the commission of the offense.  In a post-conviction disciplinary hearing facts that gave rise to the criminal charge, which resulted in respondent's conviction, cannot be relitigated.  The range of permissible inquiry stands confined to issues that are germane to mitigation or severity of the bar disciplinary sanction which is to be visited upon the respondent
                

II

IN POST-CONVICTION BAR DISCIPLINARY CASES THIS COURT MUST GIVE DE NOVO CONSIDERATION TO RESPONDENT'S CONTINUED FITNESS TO PRACTICE LAW

In a post-conviction disciplinary proceeding this court will examine the entire record tendered in the case and, if it is found complete, ⁷ will consider de novo the respondent's continued fitness to practice law. ⁸ The task before us today is to be distinguished from two other remedial notions with which it may easily be confused: (a) de novo appellate review on the record and (b) a trial de novo. The latter denotes a retrial of an entire case before a different tribunal, with all litigable issues standing as though they had never been resolved before. ⁹ The former--de novo appellate review on the record--requires an independent, non-deferential re-examination of another tribunal's record and findings. ¹⁰

The distinction between our de novo consideration that is every lawyer's constitutional due and the other two forms of corrective process is critical. It is mandated by this court's unique, constitutionally invested status as a tribunal that exercises exclusive, original and nondelegable cognizance over legal practitioners and over the regulation of the practice of law. ¹¹ Every aspect of a disciplinary inquiry before any Oklahoma Bar Association's [Bar] authority, from beginning to end, falls under that jurisdictional rubric. ¹² Since this power cannot be shared with any other institution, ¹³ the entire process must be given our de novo consideration. ¹⁴ Stated another way, since the findings of fact made by the PRT are neither binding nor persuasive, and do not constitute another tribunal's decision, it is this court's duty to pass on the sufficiency and weight of the evidence as a tribunal of first instance with original and exclusive cognizance of the case.

The Parties' Stipulations

At the outset of the PRT hearing the Bar and Livshee stipulated that no disciplinary action had ever been taken against Livshee. The parties later filed here a joint brief in support of the PRT report and of that body's recommendation for a 60-day suspension. According to that brief (which is in the nature Forensic (in-court) ¹⁶ stipulations are solemn admissions which are subject to the approval of the court in which they are entered. No party may impose a stipulation on an unwilling court. Unless the court, upon request, finds a tenable legal ground for relieving one or all parties from the legal effect of their stipulation, judicial admissions tendered in this form are generally binding and conclusive upon the parties as well as on the court. ¹⁷ When a stipulation is offered to this court in a bar disciplinary proceeding, it is incumbent upon us to determine if it accords with the applicable law and with the record in the case. If so, the stipulation will be approved and its legal effect imposed on the parties. For the reasons to be explained in Part III, infra, we approve the stipulation that Livshee's conviction demonstrates his lack of fitness for the practice of law.

                of a stipulation), the crime of which Livshee was convicted "demonstrates his unfitness to practice law." 15  The brief concedes that this stipulation, although contrary to one explicit PRT finding, is consistent with another made in the report under consideration--i.e., that Livshee is "guilty of a lack of good moral character and respect for the law."
                

III THE CONSEQUENCES OF A LAWYER'S CONVICTION FOR WILLFUL FAILURE TO FILE AN INCOME TAX RETURN

A lawyer's conviction (that is final) for willful failure to file an income tax return demonstrates the practitioner's "unfitness to practice law" within the meaning of Rule 7.1. ¹⁸ It calls for disciplinary measures in the interest of maintaining the integrity of and confidence in the legal profession. ¹⁹ A lawyer's disregard of federal tax laws manifests a want of fidelity to the system of lawful government which a lawyer is sworn to uphold. ²⁰ "By willfully failing to file ... tax returns, a lawyer appears to the public to be placing himself above the law." ²¹ It matters not that the lawyer's offense (of failure to file a tax return) is characterized either as a misdemeanor or a felony. The misconduct clearly does not comport with accepted professional standards because it is likely to undermine public confidence in and perception of the legal profession as a community of law-abiding practitioners. ²²

The only question that remains for us to decide is hence the appropriate disciplinary sanction, if any, to be meted out in this case. ²³

IV DISCIPLINE TO BE IMPOSED

The PRT considered several mitigating factors. (1) Livshee complied fully with this court's post-conviction order of interim suspension and with all other rules governing him while under suspension; (2) he has refrained from practicing law; (3) his offense of willful failure to file a tax return does not reveal any elements of "deception and dishonesty;" (4) Livshee readily admitted his wrongdoing; (5) at the time of his criminal omission Livshee did not have the money to pay the taxes then due the government; (6) the acts of which he stands convicted neither relate to his practice of law nor did they harm any of his clients or other individuals; (7) at the time of the PRT hearing Livshee had filed all his tax returns; (8) while he then owed in taxes between $50,000 and $55,000, he was making arrangements for a pay-out.

The parties urge this court to adopt the PRT's recommendation by suspending Livshee from the practice of law for 60 days, to run from the date of this court's interim post-conviction order of September 13, 1993, and by requiring him to pay all costs of this proceeding.

The responsibility cast on this court when exercising disciplinary jurisdiction is not to punish offensive conduct but rather to inquire into a lawyer's continued fitness. This must be done with a view towards safeguarding the interests of the public and those of the courts as well as of the legal profession. ²⁴ Disciplinary sanctions not only serve to deter an offending lawyer from committing similar acts in the future, but also operate as a restraining influence upon others. ²⁵ The sanction we impose today amply meets these policy goals. ²⁶

A lawyer's license is a certificate of professional fitness to deal with the public as a legal practitioner. Public confidence in every approved legal practitioner is essential to the proper functioning of the profession. A lawyer's willful...