State, ex rel. Oklahoma Bar Ass'n v. Donnelly

• Decision Date: 16 December 1992
• Docket Number: No. 997,No. 3717,997,3717
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Patrick DONNELLY, Respondent. OBADSCBD
• Court: Oklahoma Supreme Court

Page 543

848 P.2d 543

1992 OK 164

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Patrick DONNELLY, Respondent.

OBAD No. 997.

SCBD No. 3717.

Supreme Court of Oklahoma.

Dec. 16, 1992.

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

J. Terrence Pansza, Oklahoma City, for respondent.

OPALA, Chief Justice.

In this proceeding against a lawyer for imposition of professional discipline the issues to be decided are: (1) Is the record, consisting of the stipulated facts, sufficient for de novo review? (2) Should a lawyer's incapacity to practice law be considered in a Rule 6 disciplinary proceeding? and (3) Is public reprimand the appropriate disciplinary sanction to be imposed for respondent's professional misconduct? We answer all the issues in the affirmative.

Patrick Donnelly [Donnelly or respondent], a licensed lawyer, was charged by the Oklahoma Bar Association [Bar or complainant] with one count of professional misconduct and with failing to report his alcoholic affliction at an earlier disciplinary proceeding. The Bar and Donnelly then entered into a stipulation of facts and agreed conclusions of law with a joint recommendation for public censure to be imposed as discipline for the charged professional misconduct. A panel of the Professional Responsibility Tribunal [PRT] adopted the parties' offer for an agreed disposition of the proceeding.

STIPULATION OF FACTS AS TO COUNT I

In late December of 1988 or early January 1989 Charles and Dorothy Mayfield delivered several invoices to respondent's office. These invoices indicate that an entity known as Diversified Well Services owed the Mayfields' business, Wireline, $14,260 for work performed by the latter in plugging abandoned wells, and $11,308.67 for tools lost in the hole.

Some time after turning the invoices over to Donnelly, the Mayfields asked him for a status report. Donnelly told them he had filed a lawsuit against Diversified; that Diversified had failed to answer; that he had taken a default judgment against the company; and that a hearing on assets would soon be held. Donnelly provided the Mayfields with a district court number for the case, though in fact he never filed one. The number so given was that of an unrelated case. Donnelly continued to deceive his clients until October or November of 1989, when he advised Charles Mayfield of the true facts: no case had been filed and no judgment taken.

The Mayfields retained other counsel who then filed suit. The Bar and Donnelly believe that the Mayfields settled their suit against Diversified Well Service for $15,750 plus $1,679 for attorney's fee and costs, and that Diversified paid $1,679 at the time of the settlement with the balance to be paid over a period of months.

AGREED CONCLUSIONS OF LAW AS TO COUNT I

The parties concede that Donnelly's conduct violates the mandatory provisions of Rules 1.3, 1.4, and 8.4(c) of the Oklahoma Rules of Professional Conduct ¹ and hence constitutes grounds for professional discipline.

ALLEGATION TO ENHANCE DISCIPLINE

In another disciplinary proceeding Donnelly received on September 28, 1989 a private Supreme Court reprimand for conduct involving dishonesty, fraud, deceit or misrepresentation, neglect and for failing to carry out a contract of employment for professional services, all in violation of DR 1-102(A)(4), DR 6-101(A)(3) and DR 7-101(A)(2), Code of Professional Responsibility. ²

CONCESSION AS TO AVAILABLE MITIGATION

The parties submit that if respondent were called to testify, he would state that his professional misconduct in this and in the September 1989 disciplinary proceedings was actuated by his addiction to alcohol. He would further testify that on December 5, 1988 he entered an outpatient program at Presbyterian Hospital and completed it on December 14, 1989. Since December 14, 1989 respondent has regularly attended Alcoholics Anonymous meetings. Lastly, respondent would testify that since December of 1989 alcohol has not compromised or impeded his professional work. The Bar, on the other hand, would concede that no complaints of unprofessional conduct have been brought against respondent since December of 1989.

THE PARTIES' RECOMMENDED DISCIPLINE

The parties recommend that public reprimand be imposed as disciplinary sanction and that respondent be supervised by a designated member of the Lawyers Helping Lawyers Committee ³ for a period of one year.

In support of their recommendation the parties state that while respondent has been disciplined previously for alcohol-related professional misconduct, he did not then reveal his alcohol dependency. Because of respondent's continued abstention from alcohol, the parties believe that a suspension is not necessary for the public's protection.

I THE RECORD BEFORE THE COURT IS COMPLETE FOR A DE NOVO REVIEW OF ALL FACTS RELEVANT TO THIS PROCEEDING

In bar disciplinary proceedings the Oklahoma Supreme Court has exclusive original jurisdiction. ⁴ The court's review is de novo. ⁵ Neither the trial authority's findings nor its assessments with respect to the weight or credibility of the evidence can bind this court. ⁶ In a de novo review, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, ⁷ a full-scale exploration of all relevant facts is required. ⁸ The court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all pertinent issues. ⁹ Our responsibility is hence to ensure that the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline ¹⁰ that would avoid the vice of visiting disparate treatment on the respondent-lawyer. ¹¹

The instant case presents two concerns: Donnelly's professional misconduct and his alcohol affliction. He has admitted all the allegations of the complaint. The record adequately explores the details of his professional misconduct. The sole question is whether the material before us adequately reflects the extent of Donnelly's professional incapacity from alcoholism.

Donnelly testified at the hearing that he had not had a drink of alcohol since July 22, 1988. He agreed to sign a "contract" with Lawyers Helping Lawyers to attend for a year four Alcoholics Anonymous meetings per week. If Donnelly fails to attend, his designated member-sponsor from Lawyers Helping Lawyers, whom he must see weekly, will report him to the Bar's General Counsel with a view to suggesting additional disciplinary measures. The parties stipulated Donnelly was legally competent and not currently consuming alcohol. The record is hence complete in the sense that it is adequate for our de novo review of Donnelly's professional misconduct and of his alcohol-related incapacity, if any, to practice law.

II A LAWYER'S INCAPACITY TO PRACTICE MAY BE CONSIDERED IN A RULE 6 DISCIPLINARY PROCEEDING

In a disciplinary proceeding the court's responsibility is not to punish but to inquire into the lawyer's continued fitness, with a view to safeguarding the interests of the public, of the courts and of the legal profession. ¹² A lawyer's professional misconduct and any personal incapacity that may have impeded a practitioner from performing at a minimum acceptable level are of equal importance in exploring for a solution that accords with the law's imperative of ensuring protection to the public from deficient lawyers.

In a Rule 6 ¹³ proceeding, the court focuses on the lawyer's questionable past conduct. This is necessary to safeguard public interest and to protect the judicial system. That focus also is designed to deter respondent from further offending behavior and other members of the Bar from like derelictions. ¹⁴ On the other hand, a Rule 10 ¹⁵ proceeding--one to determine a lawyer's incapacity to practice law--focuses exclusively not on the past but rather on the practitioner's present condition and its future consequences. The latter proceeding--that under Rule 10--triggers an inquest into the lawyer's present capacity untrammeled by the excess baggage of discipline implications. In Rule 10 process the main thrust is on prophylactic measures--those that would minimize potential risk to the public from a practitioner's incapacity. This does not mean that a Rule 10 respondent's disability may be used as a shield from professional responsibility. ¹⁶ Where the facts may so warrant discipline could still be imposed. ¹⁷

A Rule 10 proceeding ¹⁸ allows for consideration of any conduct that may have resulted from the lawyer's incapacity. It matters not that the original complaint against the respondent was pressed as a Rule 6 cause. ¹⁹ In either case, the tribunal or this court may consider whether Rule 6 or Rule 10 process, either or both, is to be invoked for appropriate public redress. ²⁰

As for Donnelly's case, it is appropriate to take into account his alcoholism as both potentially incapacitating in the Rule 10 sense, and as a mitigating factor ²¹ in fashioning the suitable Rule 6 discipline. Donnelly is no longer using alcohol. His affliction appears to have been arrested. The public will be adequately protected so long as he abstains from consumption. Donnelly's present condition neither compels nor warrants this court's finding that he is an incapacitated practitioner. His past conduct, on the other hand, calls for imposition of professional discipline.

III A PUBLIC REPRIMAND IS AN APPROPRIATE SANCTION FOR RESPONDENT'S PAST PROFESSIONAL MISCONDUCT

Lawyer misconduct falls within two basic categories: serious and minor. ²² A lawyer who has dealt grave economic harm to a client is a major offender. ²³ The economic injury to a client is reprehensible and calls for the imposition of harsh measures.

Donnelly has been charged with lacking diligence and promptness in representing his client, ²⁴ not keeping his client informed, ²⁵...