State ex rel. Oklahoma Bar Association v. Bednar

• Citation: 441 P.3d 91
• Decision Date: 12 March 2019
• Docket Number: SCBD 6618
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Alexander L. BEDNAR, Respondent.
• Court: Supreme Court of Oklahoma

441 P.3d 91

STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Alexander L. BEDNAR, Respondent.

SCBD 6618

Supreme Court of Oklahoma.

FILED MARCH 12, 2019

REHEARING DENIED APRIL 29, 2019

Loraine Dillinder Farabow, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Alexander L. Bednar, Oklahoma City, Oklahoma, Pro Se.

PER CURIAM:

¶ 1 Alexander L. Bednar (Respondent) is a member of the Oklahoma Bar Association (Bar) and is licensed to practice law in Oklahoma. The Bar initiated this action under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch.1, app. 1-A, by filing an eleven-count Complaint on December 21, 2017. Respondent did not respond to the Complaint or to the Bar's Motion to Deem Allegations Admitted. The Professional Responsibility Tribunal (Trial Panel) deemed the allegations admitted and after a two-week trial found Respondent violated the Oklahoma Rules of Professional Conduct (ORPC) 1.1, 1.3, 1.4, 1.5, 1.15, 1.16(d), 3.1, 3.2, 3.3, 3.4, 4.2, 4.4, 8.1(b), 8.2(a), 8.4(c)-(d), 5 O.S.2011, ch. 1, app. 3-A, and RGDP 1.3 and 5.2. The Trial Panel recommended Respondent be permanently disbarred and ordered to pay the costs of the proceedings.

I. STANDARD OF REVIEW

¶ 2 The Supreme Court of Oklahoma possesses original, exclusive, and nondelegable jurisdiction to control and regulate the practice of law, licensing, ethics, and discipline of attorneys. 5 O.S.2011, § 13 ; RGDP 1.1; State ex rel. OBA v. Braswell , 1998 OK 49, ¶ 6, 975 P.2d 401, 404. The purpose of our licensing authority is not to punish the offending lawyer but to safeguard the interests of the public, the courts, and the legal profession. State ex rel. OBA v. Friesen , 2016 OK 109, ¶ 8, 384 P.3d 1129, 1133. To determine whether discipline is warranted and what sanction, if any, is to be imposed, the Court conducts a full-scale, nondeferential, de novo review of all relevant facts. State ex rel. OBA v. Schraeder , 2002 OK 51, ¶ 5, 51 P.3d 570, 574.

¶ 3 While accorded great weight, the report and recommendations of the Trial Panel are merely advisory in nature and carry no presumption of correctness. State ex rel. OBA v. Boone , 2016 OK 13, ¶ 3, 367 P.3d 509, 511 ; State ex rel. OBA v. Anderson , 2005 OK 9, ¶ 15, 109 P.3d 326, 330. Likewise, the specific rule violations listed in the complaint do not limit our discretion. See State ex rel. OBA v. Bedford , 1997 OK 83, ¶ 15, 956 P.2d 148, 152. The ultimate decision-making authority rests with this Court. Anderson , 2005 OK 9, ¶ 15, 109 P.3d at 330.

II. PRIOR DISCIPLINE

¶ 4 On April 2, 2013, we suspended Respondent's license to practice law for one (1) year under RGDP 7.7. See State ex rel. OBA v. Bednar (Bednar I) , 2013 OK 22, 299 P.3d 488. The reciprocal disciplinary proceeding resulted from Respondent's voluntary resignation from the United States District Court for the Western District of Oklahoma pending disciplinary proceedings and his one-year suspension from the United States Court of Appeals for the Tenth Circuit. Id. ¶¶ 5, 16, 299 P.3d at 490, 492. In that proceeding, we found Respondent engaged in witness intimidation, discovery abuse, threatening retaliatory lawsuits, a pattern of missing deadlines, improperly seeking reconsideration after adverse rulings, and fraudulent alteration of court documents, the last of which resulted in a $20,000 sanction. Id . ¶¶ 5, 12, 299 P.3d at 490-91.

¶ 5 In Bednar I , Respondent submitted evidence of a recent ADHD diagnosis as mitigation. Id. ¶ 6, 299 P.3d at 491. Respondent assured the Trial Panel then that he would continue taking prescribed medications and participating in therapeutic counseling to manage his impulsive behaviors affecting his practice of law. Complaint ¶ 155. After a hearing to determine if the matter should be treated as an RGDP 10 proceeding, which would assess his personal capacity, the Court found that Respondent's diagnosis did not alleviate him of personal responsibility. Bednar I , 2013 OK 22, ¶¶ 9, 14-15, 299 P.3d at 491. Declining to convert the prior discipline to RGDP 10, we did not require proof of any continuing treatment from Respondent. Instead, we specifically noted that the treatment he was receiving did not appear to curb his impulsive behaviors. Id . ¶ 14, 299 P.3d at 492. On July 30, 2014, Respondent filed his affidavit of reinstatement without order pursuant to RGDP 11.8.

III. CURRENT DISCIPLINARY PROCEEDINGS

A. Allegations Deemed Admitted

¶ 6 In response to grievances filed by former clients, the Bar investigated Respondent and on December 21, 2017, filed a formal Complaint setting forth eleven (11) counts of professional misconduct. In substance, these counts allege Respondent engaged in abusive discovery tactics, misrepresentations to courts, forgery of court documents, misappropriation of client funds, unauthorized contacts with opposing parties, a pattern of missing deadlines, untimely and improper motions for recusal, and retaliatory and frivolous lawsuits.

¶ 7 The Bar submitted evidence that Respondent was properly served with notice of the Complaint. On December 21, 2017, the Bar mailed copies of the formal Complaint to Respondent's official roster address and residence; Respondent signed for one copy on January 6, 2018. The Bar also hired a process server who served Respondent with the Complaint on January 10, 2018. In each of these notices, the Bar included a letter advising Respondent that RGDP 6.4 "requires an answer to be filed on your behalf with the Chief Justice within twenty (20) days of today's date[, and i]n the event you do not answer within twenty (20) days, the charges shall be deemed admitted." The Bar also enclosed copies of relevant documents serving as the bases for the grievances so that Respondent could review and address them in his response.

¶ 8 Respondent did not file an answer to the Complaint. Instead, he filed numerous "special appearance[s]," requests for recusal, subpoenas duces tecum, and other motions. With no timely answer from Respondent, the Bar filed a Motion to Deem Allegations Admitted on January 31, 2018. At the Scheduling Conference the same day, the Trial Panel said it would take the motion under advisement, explaining to Respondent that although he was out of time, it still believed an answer to the allegations would be "of great value to the Court." Sched. Conf. Tr. 116-17, Jan. 31, 2018. Although Respondent appeared at the Scheduling Conference and filed many motions, at no time did he file an answer to the Complaint or to the Motion to Deem Allegations Admitted.

¶ 9 After taking the motion under advisement for over two months, the Trial Panel issued an order on April 3, 2018, deeming the allegations of the Complaint admitted, pursuant to RGDP 6.4.¹ At the Pre-Trial Conference Hearing on April 16, 2018, the Trial Panel reiterated to Respondent that the allegations had been deemed admitted. There, and many times throughout the proceedings, the Trial Panel explained that it would hear evidence regarding the material elements of the Complaint and then, assuming those elements were established, evidence regarding appropriate discipline. Despite these notices, the transcripts reveal that Respondent spent much of the evidentiary hearing re-litigating already decided or irrelevant issues, such as his 2013 discipline.² After the hearing, the Trial Panel found clear and convincing evidence for ten (10) of the eleven (11) counts and concluded, "without the slightest reservation or hesitation[,] Respondent is unfit in all respects to be licensed as an attorney." Trial Panel Rep. 12.

B. Due Process Allegations

¶ 10 Respondent alleges the investigative process was "fraught with procedural and substantive due process violations," claiming: the grievances lacked specificity; the Bar was biased against him; and the Trial Panel improperly deemed the allegations admitted, quashed subpoenas, refused to issue a new Scheduling Order, and declined to recuse its Presiding Master. Resp't's Br. 7-10. The Bar contends that Respondent was afforded "every opportunity to participate" in the fact-finding stages of the proceedings, yet chose not to fully avail himself of those opportunities — as evidenced by his failure to respond to the Complaint or Motion to Deem Allegations Admitted, refusal to submit an exhibit or witness list even after being granted extensions, and decision to wait seven weeks after the Scheduling Order to issue over thirty (30) subpoenas, almost all of which were improperly served and sought primarily privileged or protected information.

¶ 11 Respondent claims "trial by ambush," arguing that the Bar had years to investigate and prepare its case-in-chief while he was afforded insufficient time. Under the Scheduling Order, Respondent was to submit his exhibit list by March 30, 2018 and complete discovery by April 6, 2018. The day before his exhibit list was due, Respondent requested an extension of time, to which the Bar agreed. Respondent also requested an extension of the discovery deadline, to which the Bar also agreed. Respondent, however, failed to comply with either extended deadline, and the Bar moved to preclude any documents Respondent sought to introduce at trial. Despite the Bar's motion, the Trial Panel permitted Respondent to submit an exhibit list as well as any documentary evidence by April 20, the Friday before the hearing was scheduled to begin on Monday, April 23. When the Trial Panel ordered him to respond to the many motions to quash filed by the witnesses he subpoenaed, Respondent complained that he could not possibly respond in the time allotted, which was the same amount of time he allowed for his intended witnesses to comply.

¶ 12 Additionally, Respondent claims the Bar's exhibits were not adequately identified. The record reveals that the Bar made its exhibits available to Respondent on April 6, 2018, in accordance with the Scheduling Order. Respondent, however, did not retrieve them until April 10;...