State ex rel. Oklahoma Bar Ass'n v. Aston, SCBD No. 4810. OBAD No. 1573.

• Decision Date: 02 December 2003
• Docket Number: SCBD No. 4810. OBAD No. 1573.
• Citation: 81 P.3d 676,2003 OK 101
• Parties: STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael I. ASTON, Respondent.
• Court: Oklahoma Supreme Court

81 P.3d 676

2003 OK 101

STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael I. ASTON, Respondent.

SCBD No. 4810. OBAD No. 1573.

Supreme Court of Oklahoma.

December 2, 2003.

Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.

Michael I. Aston, Tulsa, Pro se.

SUMMERS, J.

¶ 1 This proceeding was brought by the Bar Association to discipline Respondent, Michael Aston, for his drug-related conduct that resulted in a felony conviction and two misdemeanor convictions.

¶ 2 The Bar requests that Aston be suspended from the practice of law for a period of six months with a following probation for two years. The Trial Panel also recommended a six-month suspension with a two-year probation. Aston argues that suspension would cause an economic hardship, and that protection of the public is afforded by random drug testing during his probation.

¶ 3 On October 2, 2002, in Cause No. CF-2002-232, District Court of Tulsa County, Aston pled guilty to the crime of Possession of Controlled Drug, Schedule II (methamphetamine). He received a deferred sentence of three years, and ten days in the Tulsa County Jail beginning October 3, 2002. He was also sentenced to eighty hours of community service. Aston also entered pleas to misdemeanor charges of possession of drug paraphernalia and possession of a Controlled Drug, Schedule IV, marijuana. He was ordered to pay fines and costs in the amount of $1,826.50. He pays $100.00 per month on the fines and costs, and an additional $60.00 per month in probation fees.

¶ 4 Aston apologized to the members of the Trial Panel, expressed contrition for his actions, explained that he had been married for a year, had an infant son, and was trying to "grow up" and be an adult. Aston completed a course of substance abuse treatment.

¶ 5 He explained the history of his methamphetamine and marijuana use. He explained that he failed a urine screen one time during the year because of his use of marijuana. After this drug test Aston was required attend a class, and receive a warning that an additional test positive for drug use would result in incarceration. He stated that after this he increased his counseling. At the time of the hearing he was attending counseling sessions twice a week, and church meetings.

¶ 6 A lawyer testified on Aston's proficiency in practicing law, and gave an opinion that Aston is a good lawyer. However, he did not have specific information relating to Aston's rehabilitation, except that Aston had strong family support for rehabilitation. Aston's minister sent a letter to the Bar Association, and stated that Aston's behavior had improved in the last year.

¶ 7 Aston called his probation officer to testify. He asked the probation officer to identify himself to the trial panel, and then turned the witness over to the panel for questioning. The probation officer testified that Aston never misses an appointment, and is timely paying his fees. He said that Aston had no problem during the probation, except one positive drug test. The program authorizes a sanction of incarceration should Aston receive a second positive test for prohibited drugs. A third positive test would result in an appearance before the sentencing judge for a determination whether Aston's probation should be revoked. He testified that one relapse is "very, very common" for individuals on probation for drug offenses. He also testified that Aston would receive additional treatment because of the relapse, a "relapse intervention program."

¶ 8 The probation officer testified that a condition of Aston's probation is that he be employed full time. He stated that Aston will need to find other employment if he is not working as a lawyer. The officer was asked to speculate on Aston's success in the program. He stated that "I don't look into the future," but "he [Aston] knows now that he's at the crossroads of where he's going to go to jail if something happens again," and "he's sincere about not wanting to mess up," and "I think he's probably going to be okay." The officer also said that Aston had "never given me any grief about coming to his house and looking around or popping in on him unexpectedly ... I think he's trying to do what he can right now."

¶ 9 Counsel for the Bar Association strongly recommended that Aston be required to participate in Lawyers Helping Lawyers¹ and a probationary period that coincided with this probation in the criminal proceeding. However, counsel for the Bar expressed concern on how a suspension could have a negative impact upon Aston's rehabilitation. Aston stated that he did not know how he would support his family and satisfy the employment requirement of his probation if his license to practice law was suspended. He stated that he would do what was necessary to support his family and satisfy his probation requirements and any requirements imposed by this Court.

¶ 10 The trial panel determined that Aston's conduct constituted a violation of Rule 8.4(b) of the Rules of Professional Conduct,² and a violation of Rule 1.3 of the Rules Governing Disciplinary Proceedings.³ We exercise exclusive original jurisdiction in lawyer discipline proceedings, and use a de novo review of the record before us. We treat the findings and recommendations of the trial panel as merely advisory when we decide whether professional misconduct has occurred and the appropriate discipline to impose. State ex rel. Oklahoma Bar Association v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21; State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, ¶ 5, 37 P.3d 856, 860. We review the evidence to determine if the allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, ¶ 7, 23 P.3d 268, 272.

¶ 11 Rule 8.4(b) states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on that person's fitness as a lawyer. We have said that the phrase "fitness to practice law" encompasses more than an absence of detriment to specific clients. In State ex rel. Oklahoma Bar Association v. Willis, 1993 OK 138, 863 P.2d 1211, we explained that conviction for possession of cocaine demonstrated an unfitness to practice law.

In State ex rel. Oklahoma Bar Association v. Arnett, 815 P.2d 170 (Okla.1991), the respondent entered a plea of guilty to the charge of possession of a controlled and dangerous substance (cocaine) which did not involve conduct in an attorney-client relationship or in the performance or non-performance of any obligation while acting on behalf of any client. The parties had stipulated that several witnesses would testify that the respondent was fit to practice law. We stated that Arnett's conduct violated the provisions of Rule 8.4(b) of the Rules of Professional Conduct in that he committed a criminal act that reflected adversely on his fitness to practice law. We imposed a ninety day suspension and a two-year probationary period in that case, which did not involve elements of fraud or misrepresentation.

State ex rel. Oklahoma Bar Association v. Willis, 863 P.2d at 1214, (emphasis added).

¶ 12 Rule 1.3 states that a lawyer may be disciplined when he or she commits and act that is contrary to the prescribed standards of conduct and would reasonably be found to bring discredit upon the legal profession. In 1999 we said that three convictions (two misdemeanors and a felony) for driving while under the influence of alcohol showed a pattern of repeated offenses indicating indifference to legal obligations. State ex rel. Oklahoma Bar Association v. Doris, 1999 OK 94, 991 P.2d 1015, 1026. Also in that year, in State ex rel. Oklahoma Bar Association v. Blackburn, 1999 OK 17, 976 P.2d 551, we said the following:

Felony drug offenses are of great concern to this Court, both because of their criminal nature and because addiction prevents an attorney from adequately caring for the legal affairs of his clients, putting the public in danger. See State ex rel. Oklahoma Bar Ass'n v. Denton, 1979 OK 116, 598 P.2d 663, 665 (deferred sentence for possession of marijuana is a crime and warrants discipline); State ex rel. Oklahoma Bar Ass'n v. Bradley, 1987 OK 78, 746 P.2d 1130, 1133 (evidence of a nolo contendere plea and receipt of a deferred sentence was admissible and relevant in disciplinary proceeding relating to attorney's use of client funds); State ex rel. Oklahoma Bar Ass'n v. Hogue, 1995 OK 64, 898 P.2d 153 (attorney's guilty pleas for drug and alcohol related offenses were cause for six month suspension).

Id. 1999 OK 17, at ¶ 12, 976 P.2d at 554.

We have said that substance abuse is incompatible with the practice of law. State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, ¶ 21, 37 P.3d 856, 864. See e.g., Matter of Reinstatement of Pierce, 1996 OK 65, 919 P.2d 422, 426, (we discussed the problem and denied a petition for reinstatement based, in part, on a lawyer's lack of evidence showing rehabilitation). Our opinions in Willis, Arnett, Doris, Blackburn, and others, predate Aston's conduct examined in this proceeding. Aston, as have all the members of the Bar, received notice that conduct resulting in convictions for felony drug offenses is not acceptable for a member of the Bar. The evidence is clear and convincing that Aston's convictions for possession of methamphetamine, marijuana, and drug paraphernalia show violations of both Rule 1.3 and 8.4(b).

¶ 13 Prior discipline for professional misconduct is used to enhance discipline. State ex rel. Oklahoma Bar Association v. Mothershed, 2003 OK 34, ¶ 42, 66 P.3d 420, 428. When enhancing discipline the Court has considered a previous private reprimand from the Professional Responsibility Commission when the facts supporting that reprimand are made part of the record. State ex rel. Oklahoma Bar Association v. Vincent, 2002 OK 40, ¶ 20, 48 P.3d 797, 801; State ex...