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

• Decision Date: 09 June 1998
• Docket Number: No. SCBD,SCBD
• Citation: 975 P.2d 401
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael T. BRASWELL, Respondent. 4117.
• Court: Oklahoma Supreme Court

Page 401

975 P.2d 401

1998 OK 49

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael T. BRASWELL, Respondent.

No. SCBD 4117.

Supreme Court of Oklahoma.

June 9, 1998.

Rehearing Denied Sept. 8, 1998.

¶0 In this disciplinary proceeding against a lawyer, the complaint alleges, in four counts, multiple instances of unprofessional conduct deemed to warrant sanctions. Upon de novo review of the evidence presented to the trial panel of the Professional Responsibility Tribunal.

RESPONDENT IS DISBARRED AND ORDERED TO PAY THE COSTS OF THIS PROCEEDING, WHICH SHALL BE DUE WHEN THIS OPINION BECOMES FINAL.

Mike Speegle, Assistant General Counsel, Oklahoma Bar Ass'n, Oklahoma City, for Complainant.

Frederick W. Southern, Oklahoma City, for Respondent.

OPALA, Justice.

¶1 In this disciplinary proceeding against a lawyer, the issues to be decided are, (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint's disposition? ¹ and (2) Is disbarment with imposition of costs an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

¶2 The Oklahoma Bar Association (the "Bar") charged Michael T. Braswell ("Braswell" or "respondent"), a licensed lawyer, with four counts of professional misconduct. After a hearing, a trial panel of the Professional Responsibility Tribunal (the "trial panel" and the "PRT," respectively) issued a report containing its findings of fact and conclusions of law together with a recommendation of discipline. The PRT found that respondent had violated numerous provisions of the Oklahoma Rules of Professional Conduct (the "ORPC") ² and of the Rules Governing Disciplinary Proceedings (the "RGDP"). ³ It recommended that Braswell be disbarred and required to pay the costs of this proceeding. Braswell denies there is clear and convincing evidence that he has violated any rules of the ORPC or RGDP and denies that his conduct warrants sanctions of any kind.

I INTRODUCTION TO THE RECORD IN THIS DISCIPLINARY PROCEEDING

¶3 This bar disciplinary proceeding was commenced on October 18, 1995, by the filing of the Bar's formal complaint in accordance with the provisions of RGDP Rule 6. ⁴ The complaint contains four counts, each organized around allegations of Braswell's professional misconduct toward an individual grievant, and each alleging multiple violations of the ORPC or its predecessor, the Code of Professional Responsibility, ⁵ and of the RGDP. The hearing on the formal complaint began on January 17, 1996, and took three days of testimony over a period of seven months. ⁶

¶4 Our decision in this case has required the careful examination of a voluminous record of proceedings, in which respondent vigorously contested every charge of wrongdoing. The transcript of the formal PRT hearing alone contains over six hundred pages of testimony and in excess of eighty exhibits. ⁷

¶5 Upon the conclusion of the formal hearing, the trial panel found clear and convincing evidence with respect to each of the four counts charging that respondent had engaged in numerous acts of unprofessional conduct. ⁸ As set forth below, we accede to many, but not all, of the PRT's findings of fact and conclusions of law. Despite having to reject some of the Bar's complaint allegations, we nevertheless adopt the PRT's recommendation of discipline. The seriousness of the violations and the respondent's unwillingness to acknowledge any wrongdoing or to cooperate in the investigation of these grievances warrant his disbarment.

II

THE RECORD BEFORE THIS COURT PROVIDES SUFFICIENT EVIDENCE

FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL

FACTS RELEVANT TO THIS PROCEEDING

¶6 In a bar disciplinary proceeding this court functions in the role of adjudicative licensing authority exercising exclusive original jurisdiction. ⁹ This jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of legal practitioners in this state. ¹⁰ In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct alleged, this court conducts a full-scale, nondeferential, de novo examination of all relevant facts, ¹¹ in which the recommendations of the trial panel are neither binding nor persuasive. ¹² We are not guided by the scope-of-review rules applicable in the context of corrective relief on appeal or certiorari, in which context we must leave undisturbed another tribunal's findings of fact. ¹³

¶7 The court's duty can only be discharged if the trial panel submits to us a complete record of the proceedings. ¹⁴ Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent determination of the facts and (b) the crafting of appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the respondent-lawyer. ¹⁵

¶8 We have carefully scrutinized the extensive record submitted to us in this proceeding and conclude that it is adequate for our de novo consideration of respondent's alleged professional misconduct.

III COUNT ONE

¶9 Count One of the complaint arises from a grievance filed by Judge David L. Russell of the United States District Court for the Western District of Oklahoma. On September 22, 1989, Judge Russell entered an order requiring respondent and another attorney to pay sanctions for filing a frivolous lawsuit. This order was affirmed by the United States Court of Appeals for the Tenth Circuit on April 23, 1990. The case was remanded to the district court for the imposition of an attorney's fee related to the appeal. Prior to the events resulting in the filing of this grievance by Judge Russell, neither the amount of imposed sanctions nor the appeal-related attorney's fee was paid by Braswell.

¶10 On April 28, 1994, approximately four and one-half years after the issuance of the sanctions order, the attorneys for the parties to whom the sanctions were owed held a hearing on Braswell's assets, in which Braswell testified that (1) he had "never had any income from the practice of law," ¹⁶ (2) he had not told anyone since 1991 that he had earned any income from the practice of law, ¹⁷ (3) he had not prepared or presented any financial statements of any nature to any third party since January 1, 1990, ¹⁸ and (4) he had owned some real estate in the 1980's, but it had been seized by the Internal Revenue Service in 1988 or 1990, ¹⁹ then returned to him, and thereafter seized by the county in 1989 or 1990. ²⁰ He refused to answer any questions about his wife's or his professional corporation's income. ²¹

¶11 When Braswell still had not paid the sanctions by August, 1994, Judge Russell held a hearing to determine whether Braswell should be held in contempt for failure to comply with the sanctions order and for failure to pay the appeal-related counsel-fee award.

¶12 The attorneys for the parties to whom the sanctions were owed had by this time obtained through subpoena two financial documents which Braswell had submitted to Lincoln National Bank in Oklahoma City. The first document was a "confidential financial statement for individual only" signed by Michael T. Braswell dated June 30, 1992, showing assets of $325,000 in real estate and $750,000 in "other personal assets." The second document was a personal loan application signed by Michael Braswell dated February 9, 1994, just two months before the hearing on assets, stating that Braswell had been engaged as an attorney for eighteen years, and that his monthly income was $5,700, $2,700 of which was disability income and $3,000 of which came from "Law Practice."

¶13 At the contempt hearing before Judge Russell, Braswell was questioned about his income and assets without first being told that his two financial documents from Lincoln National Bank were in hand. Again Braswell testified that he was a practicing lawyer, but that he received no compensation for his work. ²² Again he denied ever telling anyone since the sanctions order was entered in 1989 that he had made any money practicing law. ²³ Asked whether he had represented to his bank since the inception of the sanctions order that he had a net worth of over $900,000, he testified that he did not think so. ²⁴

¶14 When confronted with the personal loan application, Braswell explained that he had not disclosed its existence because, despite its name, it was not an application for a personal loan, but rather an application to obtain a loan for Braswell and Associates, Inc., the professional corporation through which he practiced law. Therefore, since it did not apply to him personally, he was not required to disclose it in response to questions about his personal income and assets. ²⁵ He explained that his only personal connection to the loan application was as guarantor of the loan. ²⁶ Furthermore, he testified that he had provided the $3,000 figure to the bank only in response to the bank's request for information on his wife's income and that someone other than himself had filled in the information improperly identifying the $3,000 as his income rather than his wife's. ²⁷ Thus, he claimed he never represented to the bank that he personally had any income from the law firm despite what the document purports to say.

¶15 As for his wife's income, respondent testified that even though he had given the bank that figure, his wife was not actually earning $3,000 per month at that time because the law firm was not making a sufficient amount of money to pay her. ²⁸ Rather, he testified, the $3,000 per month was "the amount that would have been paid to her each month if we were able to pay, ..." ²⁹

¶16 Judge Russell noted that between Braswell's...