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

• Decision Date: 05 July 2006
• Docket Number: SCBD No. 5060.,OBAD No. 1657.
• Citation: 2006 OK 54,142 P.3d 428
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION Complainant, v. James Michael ROGERS, Respondent.
• Court: Oklahoma Supreme Court

142 P.3d 428

2006 OK 54

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION Complainant, v. James Michael ROGERS, Respondent.

SCBD No. 5060.

OBAD No. 1657.

Supreme Court of Oklahoma.

July 5, 2006.

¶ 0 Complainant, Oklahoma Bar Association (hereinafter "Complainant") initiated attorney disciplinary proceedings against Respondent/Attorney James Michael Rogers (hereinafter "Respondent") for professional misconduct arising out of numerous alcohol-related felony and misdemeanor convictions spanning over a decade. A Professional Responsibility Tribunal trial panel found misconduct and recommended suspension for two years and one day. Held: Respondent is guilty of misconduct and the appropriate discipline is suspension for two years and one day.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; RESPONDENT ORDERED TO PAY COSTS.

Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Gerald J. Lovoi of Tulsa, Oklahoma, for Respondent.

LAVENDER, J.

¶ 1 Complainant commenced this proceeding pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (hereinafter "RGDP"), 5 O.S. ch. 1, app. 1-A., and charged Respondent with violating Rules 8.4(b) and 8.4(c) of the Oklahoma Rules of Professional Conduct (hereinafter "ORPC"), 5 O.S.2001, ch. 1, app. 3-A; and Rule 1.3 of the RGDP on the basis that "Respondent's repeated violations of Oklahoma's legal standards prohibiting driving a motor vehicle while intoxicated on alcohol demonstrates a disregard for the law and an indifference to legal obligations."¹ The Professional Responsibility Tribunal (hereinafter "PRT") determined that Respondent's most recent felony conviction arising out of his November 8, 2003 arrest reflected adversely on his fitness as a lawyer and is contrary to prescribed standards of conduct which can reasonably be found to bring discredit upon the legal profession and recommended suspension for two years and one day. After de novo review, we agree with these findings, that discipline is warranted and the appropriate amount of time for suspension is two years and one day.

I FACTS AND PROCEDURAL HISTORY

¶ 2 Respondent was admitted to the bar on April 17, 1992. At the time of the hearing before the Professional Responsibility Tribunal, Respondent was 44-years-old. The critical facts in this matter relate to Respondent's criminal history, which, in summary consists of two felony convictions and at least three misdemeanor convictions² arising from alcohol-related criminal charges. The record reveals the following timeline of Respondent's alcohol-related criminal convictions:

1. April, 1992: Respondent was arrested for driving under the influence of alcohol ("DUI"), driving without a seatbelt, failing to stop at a red light, and transportation of beer in an open container. The DUI charge was reduced and Respondent was convicted of impaired driving. Respondent was sentenced to 40 hours of community service, ordered to pay fines, and required to complete DUI school.

2. November, 1994: Respondent was arrested for DUI. Respondent entered a guilty plea to a reduced charge of impaired driving and Respondent was sentenced to perform community service, complete DUI school, serve six months of suspended jail time and pay a fine.

3. July, 1998: Respondent was arrested and convicted of a misdemeanor (upon a plea of guilty) for DUI, sentenced to one-year suspended sentence, ordered to perform 40 hours of community service and fined.

4. December, 2002: Respondent was arrested and convicted (upon a guilty plea) for felony DUI and for the misdemeanor of driving under revocation of driver's license. Respondent received a five year deferred sentence and a concurrent one year suspended sentence. Additionally, Respondent was ordered to perform 80 hours of community service.

5. November, 2003: Respondent was arrested and convicted (upon a guilty plea)³ for felony DUI alcohol-second offense⁴ and two misdemeanor counts for leaving the scene of an accident with damage to vehicle and another for driving under revocation of driver's license. Respondent was sentenced to five years on the felony conviction and one year on each of the misdemeanor convictions with all three counts to run concurrently.

¶ 3 Upon Respondent's arrest in connection with the November, 2003 incident, a motion to accelerate deferred judgment and sentence was filed in the Tulsa County District Court and the Respondent's sentences in the two felony matters were accelerated, resulting in Respondent's incarceration with the Oklahoma Department of Corrections from April 4, 2004 until his release from prison on March 2, 2005. The record reflects Respondent is on probation currently and will remain on probation until March 1, 2008. The conditions of Respondent's probation are substance abuse evaluation and the installation of an ignition interlock device on any vehicle Respondent will drive. Additionally Respondent is required to successfully complete an outpatient substance abuse counseling program as well as attend anger management and "criminal sentiments" groups.

¶ 4 The evidence reflects that at the time of the hearing before the Professional Responsibility Tribunal, Respondent was in good standing with his probation and parole officer. In the event Respondent violates the conditions of his probation, a violation report will be submitted to the district court and to the district attorney's office with recommendations ranging from no sanctions to incarceration up to the remainder of his original five-year sentence.

¶ 5 Respondent has admitted he has a substance abuse problem.⁵ Respondent received in-patient treatment at the Narconon Arrowhead facility for alcohol dependency after his motor vehicle accident/felony DUI arrest in November, 2003. Respondent was in-patient at Narconon from December 1, 2003 through March 3, 2004. He was thereafter taken into Department of Corrections custody for incarceration on April 5, 2004. Prior to this in-patient treatment, the record reflects Respondent has sporadically attended Alcoholics Anonymous meetings⁶, obtained some outpatient treatment therapy from providers at Indian Health Care Resource Center,⁷ as well as completed a 72-hour detoxification program.

¶ 6 Complainant initiated its investigation in the instant matter upon its receipt of a letter from Respondent explaining the reasons for Respondent's failure to comply with his 2003 mandatory continuing legal education (hereinafter "MCLE") requirements due to his in-patient substance abuse treatment and incarceration.⁸ Although Respondent was suspended from the Oklahoma Bar Association by Order of this Court on July 1, 2004 due to Respondent's failure to complete his MCLE requirements for 2003 and likewise suspended on June 27, 2005 for noncompliance with MCLE requirements for 2004, Notices of Reinstatement were filed as to both of these suspensions.⁹

¶ 7 Complainant lists in its Amended Complaint two items for Enhancement of Discipline as follows:

1. Respondent's prior discipline administered by the Professional Responsibility Commission on August 22, 1997 in OBAD # 1321 for neglect in representation of Mary Baugh in a divorce case and failure to respond to the Oklahoma Bar Association.

2. During Respondent's May 15, 1997 deposition testimony in OBAD # 1321, the Respondent admitted to having difficulties with drinking in the past.

¶ 8 The Joint Stipulations of Fact document (listed as Complainant's Exhibit No. 5 to Complainant's Trial Exhibits), which was signed by the parties, contains Respondent's "graduation from Narconon Arrowhead in Canadian, OK" as an item of mitigation in this matter.

II ANALYSIS

¶ 9 As a starting point, we note the standard of review applicable in this proceeding is de novo, which involves a full exploration of all relevant facts and requires a complete record made before the trial panel. State ex. rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, 991 P.2d 1015. The record presented here is adequate for de novo review. While we examine the findings and recommendations of the Professional Responsibility Tribunal as advisory, the ultimate responsibility for determination of whether misconduct has occurred and what discipline is warranted rests with this Court in the exercise of exclusive original jurisdiction in bar disciplinary matters. State ex rel. Oklahoma Bar Ass'n v. Todd, 1992 OK 81, 833 P.2d 260, 262. Finally, "[t]o warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence." Rule 6.12(c) of the RGDP; State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1991 OK 88, 824 P.2d 1090, 1093. 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. Oklahoma Bar Ass'n v. Green, 1997 OK 39, ¶ 5, 936 P.2d 947, 949.

¶ 10 Complainant's Amended Complaint lists one count for which Respondent is charged with violating Rules 8.4(b) and 8.4(c) of the ORPC and Rule 1.3 of the RGDP for his alcohol-related criminal convictions.¹⁰ Rule 8.4 provides in pertinent part as follows:

It is professional misconduct for a lawyer to: ...

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trust-worthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Rule 1.3 of the RGDP provides as follows:

The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent...