STATE EX REL. OKLAHOMA BAR ASS'N v. Giger

• Decision Date: 10 June 2003
• Docket Number: SCBD No. 4529,SCBD No. 4734.
• Citation: 72 P.3d 27,2003 OK 61
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent, and State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Cordes Martin Giger, Respondent.
• Court: Oklahoma Supreme Court

72 P.3d 27

2003 OK 61

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent, and State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Cordes Martin Giger, Respondent.

SCBD Nos. 4529, 4734.

Supreme Court of Oklahoma.

June 10, 2003.

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

Tate Wise, Oklahoma City, OK, for Respondent.

OPALA, V.C.J.

¶ 1 In these disciplinary proceedings 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 merits and disposition of both the motion for additional discipline and of the complaint?¹ and (2) Is a suspension from the practice of law for two years and one day 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 13 November 2001 the court held in State ex rel. Oklahoma Bar Association v. Giger (Giger I)² that Cordes Martin Giger (Giger or respondent) had engaged in professional misconduct warranting sanctions. We suspended respondent from the practice of law for one year, placed him under conditioned supervision for two years, and directed him to pay the costs of the proceeding. The provisions of respondent's conditioned supervision required him to (1) abide by the Rules of Professional Conduct; (2) cooperate with and participate in the Lawyers Helping Lawyers (LHL) program; (3) refrain from the use or possession of any illegal drug; and (4) remain unimpaired from the use of any legal substance, whether prescribed or not, that might interfere with his ability to function as a lawyer.

¶ 3 On 31 May 2002 the Oklahoma Bar Association (the Bar) filed a motion to impose additional discipline on respondent for violating the terms of his conditioned supervision by: (1) engaging in the practice of law while under suspension; (2) failing to comply with the court's order that he cooperate with and participate in the LHL program; (3) failing to comply with an order of the Cleveland County District Court that he participate in the LHL program as a condition of probation in several drug-related criminal cases; and (4) entering a plea of nolo contendere in Cleveland County District Court to petty larceny. Giger tendered no response to the motion and we referred the matter for hearing to the trial panel that had originally heard Giger I.³ A hearing was set for 21 August 2002.

¶ 4 While the motion to assess additional discipline was pending, the Bar initiated a formal disciplinary proceeding against respondent arising out of a grievance filed by Jimmy Travis Benson (Giger II or the Benson complaint). Respondent provided the Bar with a detailed response to Mr. Benson's informal grievance, denying his accusations, but did not file a response to the Bar's formal complaint.

¶ 5 The Benson complaint was set for hearing on 6 August 2002 before a different trial panel than that assigned to hear the motion for additional discipline. At the suggestion of the Bar and with respondent's approval, the trial panel assigned to hear the Benson complaint decided to transfer that complaint to the trial panel assigned to hear the motion to impose additional discipline and directed the Bar to seek an order to that effect from this court.⁴ We then issued an order combining the two cases for hearing purposes only, directing that they otherwise retain their separate identities and be resolved by independent dispositions.

¶ 6 Accordingly, Giger II was consolidated (with the motion for additional discipline) for hearing on 21 August 2002. Evidence was received on that date on the motion, but because Mr. Benson failed to appear, the trial panel heard no testimony on the complaint. Another hearing was scheduled for 23 October 2002 to take up the Benson complaint, but neither Mr. Benson nor respondent appeared at that hearing. Upon being reached by telephone at his residence by a member of the panel, respondent denied that he had received notice of the hearing, which had been sent to him by regular mail.

¶ 7 A final attempt to hear testimony on the Benson complaint was made on 16 January 2003. Respondent, having been personally served with notice of the hearing, appeared. Mr. Benson, who had informed the Bar that he would not be able to appear, agreed to testify by cell phone but could not be reached. The trial panel, only two of whose three members were present, nevertheless received testimony from respondent regarding Mr. Benson's grievance as well as further testimony relating to the motion to assess additional discipline. At the hearing's conclusion, the Bar conceded that it had not proved the allegations of the Benson complaint by clear and convincing evidence.⁵

¶ 8 The panel members,⁶ unable to agree on the particulars of respondent's noncompliance with the court's order in Giger I, filed separate reports setting out their findings of fact, conclusions of law, and recommendation in that matter. The presiding master concluded that respondent had committed two violations of the Giger I order—practising law while under suspension and failing to comply with the terms of the Cleveland County probation in contravention of Rule 8.4(b)⁷ of the Oklahoma Rules of Professional Conduct. She recommended that respondent be disbarred.⁸ The lawyer member of the panel found only a single breach of the Giger I order—failing to participate in the LHL program. He recommended that respondent be suspended for an additional two years and one day.

¶ 9 With respect to Giger II, the trial panel concluded that there was not a sufficient record for this court's de novo review.

¶ 10 The Bar has filed an application to assess against respondent the costs of this proceeding in the amount of $2,010.06. Respondent has not filed a brief nor has he responded to the Bar's application to assess costs.

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

¶ 11 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.⁹ 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.¹⁰ 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,¹¹ in which the conclusions and recommendations of the trial panel are neither binding nor persuasive.¹² 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.¹³

¶ 12 The court's duty can be discharged only if the trial panel submits a complete record of the proceedings.¹⁴ 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.¹⁵ ¶ 13 Having carefully scrutinized the record submitted in these proceedings, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct as set forth in both the motion for additional discipline and in the Benson complaint.

III THE CHARGES AGAINST RESPONDENT

A. The Motion To Impose Additional Discipline

¶ 14 1. Practicing law while under suspension. The court's opinion in Giger I, which suspended respondent from the practice of law, was handed down on 13 November 2001. The record shows that respondent appeared as a lawyer on behalf of his wife in Cleveland County District Court on 6 December 2001. The Bar alleges that the Giger I opinion was final and effective on the date it was issued so that respondent's 6 December court appearance was in violation of that order. If proved, respondent's conduct would constitute both a violation of the suspension order¹⁶ as well as a violation of the supervision order, which was conditioned on fidelity to the Rules of Professional Conduct.¹⁷ Respondent conceded at the hearing that he did indeed practice law while under suspension, but claimed he did so under the erroneous impression—given him by an employee of the Bar—that there was some period of latency in which he could continue practicing without violating the order.

¶ 15 Whether respondent violated the Giger I order by appearing in court on 6 December 2001 depends upon when the Giger I opinion became operative, a point in time the court has not until now been called upon precisely to define. This Court exercises original jurisdiction in lawyer discipline cases.¹⁸ An order issuing from a bar disciplinary proceeding, unlike an opinion pronounced on appeal or certiorari, does not require a mandate to be delivered to a lower tribunal to mark its effective date.¹⁹ The effective date of most original proceedings is governed by Rule 1.193 of the Oklahoma Supreme Court Rules, which provides that the decision of this court in all original proceedings except those to review a decision of the Workers Compensation Court or to impose Bar discipline, unless stayed, becomes effective when the opinion or order is filed with the clerk.²⁰ No Supreme Court rule addresses the effective date of decisions to impose Bar discipline.

¶ 16 The provisions of Rule 6.15 of the Rules Governing Disciplinary...