State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 4122

• Decision Date: 29 April 1997
• Docket Number: No. 1223,No. 4122,4122,1223
• Citation: 1997 OK 55,938 P.2d 744
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Grover L. MISKOVSKY, Respondent. SCBD OBAD
• Court: Oklahoma Supreme Court

Page 744

938 P.2d 744

1997 OK 55

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Grover L. MISKOVSKY, Respondent.

SCBD No. 4122.

OBAD No. 1223.

Supreme Court of Oklahoma.

April 29, 1997.

Paul Streck, Miskovsky, Miskovsky & Associates, Oklahoma City, for Respondent.

HARGRAVE, Justice.

The Respondent was charged with three counts involving violations of the Code of Professional Responsibility. Count I, which resulted from a complaint that Respondent charged a client for an initial consultation that had been advertised as free, was dismissed on motion of the Complainant. Counts II and III involve sexually offensive and harassing conduct on the part of Respondent toward two women who had, on different occasions, sought him out for representation in their divorces.

We have read the transcript of the proceedings and find that the Respondent engaged in a pattern of sexually offensive and harassing behavior. The essential elements of Counts II and III are virtually identical. Each of the women involved had been referred to the Respondent for representation. Within moments of being seated in the office, each woman was questioned by Respondent about her sexual practices, told that it was okay for women to have these feelings and then told what kinds of sexual practices she might enjoy having done to her, using the lowest vernacular terms. Mrs. C., who had married at a young age, testified that Respondent told her at that early age she had gotten her feelings for someone confused with sexual feelings, and that "that's how they start in the back seat of a car." He asked both women if they ever had "wet dreams" or fantasies. He asked Mrs. C. to describe her dreams or fantasies. With both women he mentioned, in his discussion of "feelings," how they could be having sex with him right in the very room in which they were talking. When Ms. C. left the office, the Respondent hugged her. Neither woman sought to have Mr. Miskovsky represent her after the initial interview. They sought representation elsewhere, with female attorneys. Both women filed grievances with the Oklahoma Bar Association shortly thereafter.

In the initial interview conducted by Respondent, neither woman was questioned about the specifics of her divorce, although an extensive questionnaire had been filled out in the waiting room. Ms. R. had a split lip and bruises given to her by her then-husband. The Respondent did not mention these injuries, did not ask whether they were administered by the husband, although Ms. R had described him as abusive. Respondent did not ask whether any protective order or medical treatment was necessary or advisable. Ms. R. stated that she was very intimidated by the Respondent's behavior, and gave him a check for a retainer fee, but stopped payment on the check the next morning.

The Oklahoma Bar Association filed a complaint against the Respondent alleging three (3) counts of misconduct. Respondent filed an answer denying that his conduct was subject to any form of discipline, and challenged the Bar's jurisdiction. A two-day hearing was held before the Trial Panel of the Professional Responsibility Tribunal at which numerous witnesses testified and Respondent's vigorously defended his position. Near the end of the hearing, when the Complainant was about to introduce the testimony of two final witnesses, Ms. G. and Ms. W., Respondent stipulated to the sexual conduct charges against him. ¹

The Respondent stipulated to the following, in the agreed joint stipulations, proposed findings of fact and conclusions of law submitted to the Trial Panel:

"5. On December 8, 1994, at 8:00 p.m., [Mrs. R] went to Respondent's office for a scheduled appointment. After waiting in the outer office for over an hour she was shown into Respondent's office about 4:00 p.m. The door was closed to the Respondent's office and the interview then began.

6. [Mrs. R] had been married for 16 years and had never needed an attorney before. She was there to speak to the Respondent about representing her in a divorce.

7. Respondent then conducted an interview in which he made repeated sexually degrading, sexually suggestive, and sexually harassing comments in general and specifically about [Mrs. R]. The Respondent even made comments about himself and [Mrs. R] having sexual intercourse on a couch in his office. The comments were much more graphic and descriptive than those set out in this (sic) complaint. The Respondent has been provided with the complaint containing the graphic and descriptive comments and phrases and was present when testimony before the trial panel was received on May 13 and May 20, 1996.

8. [Mrs. R] was very intimidated by the sexually harassing behavior of the defendant and upon his request gave him a check that day for a retainer fee but stopped payment on the check the next morning and requested that her check be returned.

9. The conduct of Respondent violated Rules 1.4(b), 1.7(b), 2.1, 8.4(a) and 8.4(d) of the ORPC, and Rule 1.3, RGDP, and constitutes grounds for professional discipline.

10. On July 11, 1995, [Mrs. C.] went to the Respondent's office for a scheduled appointment to discuss a divorce. She arrived at the Respondent's office at 2:50 p.m. and completed some initial paperwork. She was then taken into the Respondent's office, the door was closed, and the interview began.

11. [Mrs. C.] had been married for 18 years and never needed an attorney before.

12. The Respondent then conducted an interview in which he made repeated sexually degrading, sexually suggestive, and sexually harassing comments in general and specifically toward and about [Mrs. C.] The Respondent graphically described a sexual scenario between himself and [Mrs. C] and made repeated comments about her having sex, and also having sex with the Respondent himself. The comments were much more graphic and descriptive than those set out in this (sic) complaint. The Respondent has been provided with the complaint containing the graphic and descriptive comments and phrases and was present when testimony before the trial panel was received on May 13 and May 20, 1996.

13. [Mrs. C.] was extremely upset by the whole interview process and found other legal representation.

14. The conduct of the Respondent violated Rules 1.4(b), 1.7(b), 2.1, 8.4(a) and 8.4(d) of the ORPC, and Rule 1.3, RGDP and constitutes grounds for professional discipline."

The Trial Panel of the Professional Responsibility Tribunal found that Counts II and III, so stipulated, were established by clear and convincing evidence, justifying disciplinary action. The Trial Panel found by clear and convincing evidence that the Respondent engaged in a "sickening pattern of exploitation of the attorney-client setting for personal sexual gratification." The panel noted that conduct of this ilk is particularly repugnant where the client is dependent upon an attorney for guidance and assistance, stating that: "[i]t is more so disgusting and abominable when the pattern is one of preying upon emotionally vulnerable clients in context of a divorce consultation." The Trial Panel recommended that the Respondent be suspended for two (2) years and one (1) day. Having reviewed the record in the case, we agree with the Trial Panel that suspension is appropriate discipline for Respondent's admitted pattern of conduct. For reasons discussed below, we impose a suspension of sixty (60) days.

The circumstances leading up to Respondent's stipulations are revealing. The Bar had listed Ms. G. as a witness. Respondent's attorneys and attorneys for the Bar met with Ms. G. outside the hearing so that Respondent's attorneys might discover the nature of her testimony. The substance of Ms. G's proposed testimony was revealed to the Trial Panel by Respondent's attorneys in camera when they argued that she should be excluded from testifying. The proposed testimony apparently involved more severe allegations than those listed in the Bar's complaint. After an off-the-record discussion, the Trial Panel ruled that the proposed testimony would be allowed on rebuttal. This is the point at which Respondent stipulated to Counts II and III of the complaint.

Further discussion was held about admitting the testimony of Ms. G. for other purposes. In objecting, Respondent's attorney argued that because the Respondent had stipulated to the two counts, there would be no purpose in admitting the further testimony except to enhance the punishment. Again the Trial Panel went off-the-record, and after a bench conference with the attorneys, the Presiding Master said:

"This is a problem. Since we went in camera, we already know some about what the one lady is going to say. Okay? So as far as what you are talking about, enhancement of punishment, that doesn't even come into the picture. Because the cat is already out of the bag on that."

Ultimately, Ms. G. did not testify and the cause was presented based upon the stipulations and the previously completed testimony.

The Trial Panel was privy to these matters occurring outside the record on appeal, and may have considered these matters in recommending a more severe discipline. We are bound by the record presented, and what Ms. G may or may not have testified to is not before us as there is no testimony by Ms. G. in the record. We may not speculate or engage in what would be mere conjecture. We base our recommendation of discipline based upon the stipulated counts and the testimony taken in connection with those counts. Accordingly, our recommended discipline is suspension from the practice of law for sixty (60) days.

This Court's review of the proceedings below is de novo. State ex rel. Oklahoma Bar Association v. Hogue, 898 P.2d 153 (Okla.1995). Our responsibility, whenever we are called upon to function in our constitutional capacity as the state's exclusive licensing authority for legal practitioners, is to independently redetermine all facts responsive to issues...