State ex rel. Oklahoma Bar Ass'n v. Giger, SCBD-4529.

• Decision Date: 13 November 2001
• Docket Number: No. SCBD-4529.,SCBD-4529.
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent.
• Court: Oklahoma Supreme Court

37 P.3d 856

2001 OK 96

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent.

No. SCBD-4529.

Supreme Court of Oklahoma.

November 13, 2001.

As Corrected November 19, 2001.

Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Albert J. Hoch, Jr., Oklahoma City, OK, for Respondent.

OPALA, J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition?¹ and (2) Is a suspension from the practice of law for one year with a two-year conditioned supervision (the latter to run concurrently from the effective date of the suspension's beginning) an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I INTRODUCTION TO THE RECORD

¶ 2 On 28 March 2000, the Oklahoma Bar Association (the Bar) commenced this disciplinary proceeding against Cordes Martin Giger (respondent), a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings ("RGDP").² The complaint alleged in three counts multiple violations of the RGDP and of the Oklahoma Rules of Professional Conduct ("ORPC"). An amended complaint containing a fourth count was filed by the Bar on 6 September 2000.

¶ 3 On 27 September 2000, a trial panel of the Professional Responsibility Tribunal held a hearing to consider the charges. At the commencement of the hearing, the trial panel admitted into evidence a document containing the parties' stipulations of fact, conclusions of law, and an agreed disciplinary recommendation. Respondent admitted by stipulation that his conduct violated RGDP Rules 1.3³ and 5.2⁴ and ORPC Rules 1.1,⁵ 1.2,⁶ 1.3,⁷ 1.4,⁸ 1.15,⁹ 8.4(b)¹⁰ and 8.4(d).¹¹ With respect to mitigation, the parties agreed that respondent's completion of a substance-abuse assessment and the modification of his prescription medications were factors to be considered. They recommended that respondent receive a ninety (90) day suspension from the practice of law followed by a period of supervision.

¶ 4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued a report that incorporated the parties' stipulations. The panel also described with greater specificity respondent's illnesses and the problems he experienced with prescription medications, and recognized for purposes of mitigation his acceptance of responsibility for his professional misconduct and his otherwise unblemished bar disciplinary record. The panel recommended that respondent be suspended from the practice of law for ninety (90) days and that he submit to periodic substance-abuse testing under the supervision of the Lawyers Helping Lawyers Committee.¹²

II THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 5 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.¹³ Its jurisdiction rests on the court's constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this state's legal practitioners.¹⁴ In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts,¹⁵ in which the conclusions and recommendations of the trial panel are neither binding nor persuasive.¹⁶ In this undertaking we are not restricted by the scope-of-review rules that govern corrective relief on appeal or certiorari, proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to the law-imposed standards of deference.¹⁷

¶ 6 The court's duty can be discharged only if the trial panel submits to us a complete record of the proceedings.¹⁸ Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent determination of the facts and (b) the crafting of an appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the offending lawyer.¹⁹

¶ 7 Having carefully scrutinized the record submitted to us in this proceeding, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct.

III FACTS ADMITTED BY STIPULATION

¶ 8 The parties have tendered their stipulations in which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement between the parties that establishes a particular fact or facts in controversy. It serves as an evidentiary substitute dispensing with the need for legal proof of the agreed fact or facts. Stipulations are subject to the approval of the court in which they are entered.²⁰ We find from the record that respondent's factual stipulations have been made voluntarily and with knowledge of their meaning and legal effect. We further find that they are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties' tendered stipulations of fact.

A. Counts One and Two-Failure to Respond to the Bar

¶ 9 Respondent admits the allegations in Counts One and Two of the complaint that he failed to respond to the investigative inquiries of the Bar in relation to two grievances, including requests for information sent by the Bar after the grievances had been opened for formal investigation. We accept respondent's stipulation — and find by clear and convincing evidence — that this conduct violated RGDP Rule 5.2.²¹

B. Count Two-The Carla Pierce Grievance

¶ 10 Respondent was retained by Carla Pierce to defend her against criminal charges filed in the District Court of Cleveland County. Respondent admits that on 25 June 1999 he arrived late for Pierce's preliminary hearing, asked only a limited number of questions, exhibited slurred speech, and appeared to be under the influence of some unknown substance.²² He stipulates that his representation at that hearing was so poor that the District Attorney later agreed to provide the accused with a second preliminary hearing. Respondent stipulates that his conduct in handling Carla Pierce's defense violated RGDP Rule 1.3 and ORPC Rules 1.1, 1.3, and 1.4.²³ We accept respondent's stipulation — and find by clear and convincing evidence — that his conduct violated the provisions of RGDP Rule 1.3 and ORPC Rule 1.1 and 1.3. Neither the stipulations nor the testimony and exhibits on file provide clear and convincing evidence that respondent violated ORPC Rule 1.4.²⁴ Respondent stands exonerated of that violation.

C. Count Three-Vehicular Drug-Related Arrests

¶ 11 Respondent admits that he entered a plea of guilty or of no contest to the following six criminal charges involving drug use and possession:

(1) Actual physical control while under the influence of drugs,²⁵ possession of marijuana and possession of drug paraphernalia, Cleveland County, 12 June 1998: a one-year deferred sentence on each count;

(2) Driving under the influence of drugs, Cleveland County, 30 October 1998: a one-year deferred sentence;

(3) Actual physical control while under the influence of drugs, Cleveland County, 13 February 1999: a one-year deferred sentence;

(4) Driving under the influence of drugs, McIntosh County, 2 May 1999: a two-year deferred sentence;

(5) Driving under the influence of drugs, Pittsburg County, 27 June 1999: a one year suspended sentence;

(6) Driving under the influence of drugs, Cleveland County, 4 October 1999: a one-year deferred sentence.

Respondent stipulates that the conduct evidenced by these criminal charges violates the provisions of RGDP Rule 1.3 and ORPC Rules 8.4(b) and 8.4(d).²⁶ We accept respondent's stipulation — and find by clear and convincing evidence — that respondent's conduct violated the provisions of RGDP Rule 1.3 and ORPC Rule 8.4(b). Neither the stipulations nor the testimony or exhibits on file provide clear and convincing evidence that respondent's conduct violated ORPC Rule 8.4(d). That rule, properly understood, sanctions conduct that interferes with the administration of "judicial process." It covers only severe interference with judicial proceedings or conduct of such a severe nature that it harms our system of representative litigation as a whole.²⁷ While respondent's drug-related misconduct was potentially dangerous both to himself and to others, it did not interfere with any judicial proceeding or harm our legal system as a whole. Respondent stands exonerated of that violation.

D. Count Four-The Linda Slavings Grievance

¶ 12 Respondent was retained by Linda Slavings to represent her in a workers compensation case. They agreed that respondent would receive checks on Slavings' behalf from the State Insurance Fund, deposit them, and then disperse the funds to Slavings. Respondent admits that he deposited some of the checks into a non-trust account. Although respondent ultimately delivered to Slavings all funds to which she was entitled, Slavings had to contact him at least once to cover a check returned for insufficient funds.

¶ 13 Respondent also admits that he was engaged by Slavings to represent her in a federal civil rights action. He concedes that he filed the lawsuit out of time and failed timely to serve the defendants. The record also shows that respondent failed to respond to a motion to dismiss Slavings' suit. Respondent stipulates that as a result of his neglect, Slavings' claim is time-barred. Res...