State ex rel. Oklahoma Bar Ass'n v. Gasaway

• Decision Date: 19 October 1993
• Docket Number: No. SCBD,No. OBAD,OBAD,SCBD
• Citation: 863 P.2d 1189,1993 OK 133
• Parties: STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Don E. GASAWAY, Respondent. 1033.3776.
• Court: Oklahoma Supreme Court

Page 1189

863 P.2d 1189

1993 OK 133

STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Don E. GASAWAY, Respondent.

No. OBAD 1033.

No. SCBD 3776.

Supreme Court of Oklahoma.

Oct. 19, 1993.

Original Proceeding for Lawyer Discipline.

The Oklahoma Bar Association brought a complaint against the Respondent/lawyer alleging twenty-one counts of professional misconduct. A hearing was held before a trial panel of the Professional Responsibility Tribunal and the panel recommended that the lawyer be disbarred from the practice of law.

RESPONDENT DISBARRED AND COSTS IMPOSED.

John E. Douglas, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Robert G. Green, Tulsa, for respondent.

SUMMERS, Justice.

The Bar Association petitions us to disbar an attorney who claims he is beyond the reach of discipline by reason of his unsuccessful effort at resignation. We conclude that Respondent stands subject to discipline, and disbar him from the practice of law.

The Professional Responsibility Tribunal filed its report recommending disbarment. The Bar Association has filed its brief. The Respondent was granted two extensions of time to file his brief, but has not filed any brief or response. He has not challenged the trial panel's report.

This Court exercises original and exclusive jurisdiction in all matters involving the discipline of persons licensed to practice law. State ex rel. Oklahoma Bar Association v. Perkins, 827 P.2d 168, 169 (Okla.1992). In the exercise of this jurisdiction we examine the record of the disciplinary proceeding and the merits of the disciplinary charges against a Respondent even though he or she fails to file a brief. State ex rel. Oklahoma Bar Association v. Phillips, 786 P.2d 1242 (Okla.1990); State ex rel. Oklahoma Bar Association v. McCurtain, 767 P.2d 427 (Okla.1989); In re Cargill, 164 Okla. 265, 23 P.2d 693 (1933). An adjudication of the merits of a disciplinary claim against a lawyer necessarily includes an examination of affirmative defenses raised by that lawyer during the course of the disciplinary proceeding.

The Respondent challenges the authority of the trial panel to proceed. His challenge is based upon a pending criminal charge against him that involved acts related to those put in issue by the Bar Association. He claims that his resignation from the Bar Association made void these disciplinary proceedings against him, even though his resignation had been refused by this Court. He also claims that a Disciplinary Rule of the Bar Association may not be applied to him without violating his rights granted by the Fifth Amendment. Finally, he claims that subpoenas issued to examine his business and trust accounts should have been quashed and evidence obtained thereunder not considered.

I. RESPONDENT'S ATTEMPT TO RESIGN

The Bar Association originally alleged that Respondent committed ten counts of professional misconduct. He filed no answer to the complaint as required by Rule 6.4. ¹ The Bar prepared a proposed resignation from the Bar for his use. He declined to use the form provided by the Bar, and filed a "Resignation in Lieu of Answer" on October 22, 1991. The Bar Association objected to the resignation as submitted by the Respondent.

The procedure for resigning from the Bar is not complicated, and this Court has accepted numerous resignations pending disciplinary proceedings. A resignation from the Bar Association by a lawyer who is the subject of an investigation into, or a pending proceeding involving, allegations of professional misconduct is governed by Rule 8.1 of the Rules Governing Disciplinary Proceedings, ² and this Court has refused to accept a resignation pending disciplinary proceedings that does not comply with Rule 8.1. See State ex rel. Oklahoma Bar Association v. Perkins, 757 P.2d 825, 828 (Okla.1988), where we rejected a resignation stating a future effective date as contrary to Rule 8.1. In this case we declined to accept Respondent's resignation because it failed to specify with particularity the nature of the pending grievances, investigations, and other pending proceedings as required by Rule 8.1. ³

The Respondent has alleged that his resignation showed substantial compliance with Rule 8.1, and that literal compliance with the Rule was not necessary. His argument on the resignation was limited to the claim that the reason for requiring a recitation of the pending proceedings, grievances, and investigations served no purpose except for later reinstatement proceedings, and was an insufficient reason to refuse the resignation. ⁴ Later at the trial panel hearing his counsel argued that the resignation "was proper and improperly rejected by the Supreme Court", and also that "Mr. Gasaway has resigned from this voluntary association ... [and] To require anything more would be unconstitutional." ⁵

One often cited rule is that an individual may resign from an association as he or she sees fit, subject to financial obligations owing the association, where there are no rules or bylaws restricting the right to resign. ⁶ Where an association has bylaws and rules they constitute a contract between the members, and membership is regulated by the terms of the contract. Oklahoma Association of Insurance Agents v. Hudson, 385 P.2d 453, 455, 456 (Okla.1963). Thus, rules of an association governing resignation may be enforced against the member. ⁷ However, the rules of an association may not unconstitutionally preclude a resignation. Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 776 (Okla.1989). Similarly, rules governing a resignation of a person from a non-religious association may not be enforced in an arbitrary or capricious manner. Haynes v. Annandale Golf Club, 4 Cal.2d 28, 47 P.2d 470, 471 (1935).

In the context of a resignation from a Bar Association some courts have held that accepting a lawyer's resignation is within the discretion of the court when the lawyer is subject to discipline at the time of the resignation. ⁸ This view of a court's discretion is consistent with our Rule 8.2 governing resignations and providing that "the Supreme Court may enter an order approving the resignation pending disciplinary proceedings." ⁹ In the exercise of this discretion some courts have rejected a resignation even when the resignation was equivalent to disbarment. ¹⁰ Courts have also rejected a resignation when it did not comply with a rule of the association requiring a list or acknowledgment of the pending charges of misconduct. ¹¹ Our refusal of the Respondent's resignation on this ground is consistent with authority involving associations generally and for Bar membership as well.

When a lawyer resigns from the Bar under a cloud of allegations of professional misconduct this Court requires the lawyer to set forth with particularity the allegations against the lawyer and any pending Bar investigations. This requirement results in the creation of a formal record in this Court that includes all pending disciplinary matters and investigations. Rule 5.7 of the Disciplinary Rules ¹² states that investigations and grievances are confidential and are not made public unless authorized by the Supreme Court or under Rule 6.1, which sets forth the procedure for filing a formal complaint. Thus, the resignation not only memorializes the public matters in the formal complaint but also brings previously confidential matters before the Court and the public. It should be noted that Rule 8.1 in no way requires an attorney to make any admissions of culpability, but merely to state, with some particularity, the allegations presently pending against him.

The Respondent's tendered resignation and the original complaint were filed simultaneously on a docket of this Court and made part of a public record. The resignation stated that the Bar Association was investigating other grievances against the Respondent, but did not indicate the nature of those grievances. Thus, the Respondent requested that a resignation pending discipline be approved when there was no record before the Court on those pending grievances and investigations. The complaint was later amended to add an additional eleven counts of alleged misconduct. The purposes of accepting a resignation during discipline do not include keeping allegations of unprofessional conduct from the Court or secreting the allegations from the public eye. The Respondent's resignation pending discipline was facially improper because it did not comply with the Association rule requiring a list or acknowledgment of the pending disciplinary charges and investigations. ¹³ This requirement serves important interests for the benefit of the resigning lawyer, the Bar Association, and the public.

II. RESPONDENT'S MOTION TO CONTINUE OR STAY THE PROCEEDINGS

A hearing was held before the trial panel on July 1, 1992. Respondent was present with counsel, and asserted that he was making a "special appearance" at the hearing. Before any evidence was presented or witnesses called the Respondent presented three motions, two for a continuance and one to quash subpoenas issued by the Professional Responsibility Commission. The Bar Association also made a motion to have the allegations against Respondent deemed admitted because of the Respondent's failure to answer the allegations.

Respondent's first motion was for a continuance based upon the argument that one of the three trial panel members was not available for the hearing, and the panel lacked "jurisdiction" to proceed. A trial panel is composed of three members called "Masters", and "Two of the three Masters shall constitute a quorum for the purposes of conducting hearings, ruling on and receiving evidence, and rendering Findings of Fact and Conclusions of Law." Rule 6.6, Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A. A trial panel possesses the discretion to continue a date for a hearing when good cause is shown. Id. at Rule 6.7. The...