State ex rel. Oklahoma Bar Ass'n v. Johnston, s. SCBD

• Decision Date: 29 June 1993
• Docket Number: Nos. SCBD,s. SCBD
• Citation: 863 P.2d 1136,1993 OK 91
• Parties: STATE ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert L. JOHNSTON, Respondent. 3800, OBAD 1041.
• Court: Oklahoma Supreme Court

Page 1136

863 P.2d 1136

1993 OK 91

STATE ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert L. JOHNSTON, Respondent.

Nos. SCBD 3800, OBAD 1041.

Supreme Court of Oklahoma.

June 29, 1993.

BAR DISCIPLINARY PROCEEDING

The parties' stipulation of facts, conclusions of law, mitigating factors and recommendation for discipline were adopted by the Professional Responsibility Tribunal. Upon this court's de novo consideration of the record,

RESPONDENT IS ORDERED DISCIPLINED BY A FOUR-MONTH SUSPENSION AND PAYMENT OF COSTS.

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

John W. Coyle, III, Oklahoma City, for respondent.

OPALA, Justice.

In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record, consisting of the stipulated facts and a transcript of proceedings, sufficient for a meaningful de novo consideration of the complaint's disposition? and (2) Is a four-month suspension an appropriate disciplinary sanction to be imposed for respondent's professional misconduct? We answer both questions in the affirmative.

The Oklahoma Bar Association [Bar] charged Robert L. Johnston [Johnston or respondent], a licensed lawyer, with one count of professional misconduct. The Bar and Johnston then entered into a stipulation of facts and agreed conclusions of law with a joint recommendation for a four-month suspension to be imposed as professional discipline for that misconduct. A panel of the Professional Responsibility Tribunal [PRT] adopted the parties' offer for an agreed disposition.

STIPULATION OF FACTS

In November 1990, respondent entered into a contract with Mr. and Mrs. T ... [adoptive parents], Texas residents, to represent them in an adoption proceeding. Their agreement is contained in a letter from respondent to the couple. ¹ They gave respondent $10,000, out of which he was to pay (a) all medical bills relating to the pregnancy and (b) his legal fees for handling the adoption.

The biological parents, residents of Oklahoma County, had agreed to place their then-unborn child for adoption with the Ts, who were to pay the medical bills. The baby was born on January 22, 1991 in Oklahoma City. The following day, respondent's secretary carried the child from the hospital and delivered it to the Ts at the Will Rogers World Airport in Oklahoma City.

On November 23, 1990, respondent deposited the adoptive parents' $10,000 check in his trust account. Of that amount, he paid $2,120.00 to the attending physician [physician] for the mother's medical care. Respondent stipulated that he "paid himself the balance [of the funds on hand] as attorney's fees." ² The physician was originally scheduled to deliver the child at his clinic, but due to unforeseen complications, the child was born at home. The mother and child were then transferred by AMCARE to South Community Hospital. This unexpected medical treatment substantially increased the medical care costs to $6,055.58.

On October 24, 1991, the Ts' Texas counsel filed a grievance with the Bar against respondent because he had failed to take the necessary steps to finalize the adoption proceedings. In fact, he had never filed a petition for adoption on behalf of the Ts. The Bar brought its complaint on February 25, 1992. On March 18, 1992, the same day that respondent filed an answer to the Bar complaint, he paid the medical care providers. Two other bills were paid on June 11, 1992. On the date of the hearing, July 9, 1992, the Bar's counsel reported that respondent had given him a check ($3,944.42) for the balance of the funds not used for the medical care or related incidental expenses. He did not retain any of the funds for his attorney's fee.

Respondent failed diligently or competently to work on this matter or to communicate appropriately with his clients. On June 12, 1991, he wrote the biological parents that he was attempting to work out an appropriate settlement with each care giver and that he had notified each one he was assuming responsibility for the debt. ³ Despite his representations, respondent failed timely to settle or pay the debts related to the baby's birth. According to the stipulation, the funds allocated to pay medical care did not remain in respondent's trust account during the period between the time he received them and the time they were paid.

The State of Oklahoma, where the biological parents reside and the baby was born, and the State of Texas, where the adoptive parents reside, are both parties to the Interstate Compact on the Placement of Children. ⁴ Respondent was required by the laws and administrative regulations of both states to comply with certain conditions relating to the adoption before he sent the child to Texas. He failed to meet these requirements, such as obtaining the approval of the interstate compact administrator in Oklahoma before allowing the baby to be taken out of state.

On January 23, 1991, when respondent appeared with the biological parents to take their consent to the adoption of the child, he told the court that the adoptive parents were in the process of moving to Oklahoma and would be domiciled in Oklahoma County. Though this statement was admittedly false, the signed consent form approved by the judge indicates that both the biological parents and the judge were aware of the child's impending removal from Oklahoma. ⁵

AGREED CONCLUSIONS OF LAW

The parties' stipulation concedes that Johnston's misconduct violates the mandatory provisions of Rules 1.1, ⁶ 1.3, ⁷ 1.4, ⁸ 1.15, ⁹ and 8.4, ¹⁰ Oklahoma Rules of Professional Conduct, and Rule 1.4, ¹¹ Rules Governing Disciplinary Proceedings, and constitutes grounds for professional discipline.

CONCESSION AS TO AVAILABLE MITIGATION

The parties submit that (a) respondent paid all bills in the total amount of $6,055.58, (b) respondent has returned all of the residual funds in the amount of $3,944.12 (at the beginning of the hearing he gave the Bar counsel a check in that amount), (c) they expect the adoption will be completed by new counsel, and (d) respondent has not previously been disciplined.

THE PARTIES' RECOMMENDATION FOR DISCIPLINE

The parties recommend that respondent (a) be suspended from the practice of law for a four-month period and (b) pay the costs incurred in this proceeding.

I

THE RECORD BEFORE THE COURT IS COMPLETE FOR A DE NOVO

CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings. ¹² The court's review is conducted by de novo consideration of the prosecution that is brought before us. ¹³ Neither the trial authority's findings nor its assessments with respect to the weight or credibility of the evidence can bind this court. ¹⁴ In a de novo consideration, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, ¹⁵ a full-scale exploration of all relevant facts is mandatory. ¹⁶

The court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all material issues. ¹⁷ Our responsibility is to ensure that the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline ¹⁸ that would avoid the vice of visiting disparate treatment on the respondent-lawyer. ¹⁹

Johnston has admitted, and the record sufficiently supports, the allegations of professional misconduct in Count 1. We hold the record is adequate for our de novo consideration of respondent's offending past conduct.

II

RESPONDENT'S FALSE STATEMENT TO THE TRIAL JUDGE

A.

Rule 8.4(c)

--Misrepresentation

The OBA charged Johnston with making a misrepresentation to the trial judge in violation of Rule 8.4(c). That rule, which generally targets fraudulent conduct, ²⁰ is directed to a lawyer's "dishonesty, fraud, deceit or misrepresentation." ²¹ A misrepresentation must be shown by clear and convincing evidence that the declarant had an underlying motive (i.e., bad or evil intent) for making the statement. ²² The record is devoid of any indication that Johnston had an improper motive.

Johnston admits that (a) he told the trial judge the adoptive parents were planning to move to Oklahoma from their residence in Texas and (b) the statement is not true. The PRT found the statement would have served no purpose in the judge's evaluation of the case. Nothing in the record indicates to us that it would have been advantageous for Johnston to misinform the court. ²³ Without establishing an improper motive for Johnston's statement, the Bar has not met its burden of proving that a "misrepresentation" was made.

B.

Rule 3.3

--False Statement To A Tribunal

While no "bad or evil intent" is shown by the record, Johnston is not relieved of professional responsibility for his false statement to the court. Any charge of "misrepresentation" to a judge or tribunal also carries with it an included or implied count of making a "false statement" in violation of Rule 3.3(a)(1). ²⁴ The converse is not true.

A "false statement" to a tribunal, as distinguished from a "misrepresentation," requires no proof of "bad or evil intent," ²⁵ nor must it be material. ²⁶ It matters not that the Bar failed to plead a specific Rule 3.3 violation. The Bar need only plead sufficient facts that will put the accused attorney on notice of the charges and give him an opportunity to respond to the facts alleged. ²⁷

On de novo consideration of the record, we conclude that the alleged facts sufficiently put Johnston on notice and that he had a fair opportunity to respond to them. He does not deny making the false statement to the court and having actual knowledge ²⁸ that his clients did not intend to move to Oklahoma. Even though Johnston claims he might have mistakenly confused the Ts' case with another one, this does not exonerate him of making a false statement. The...