State ex rel. Oklahoma Bar Ass'n v. Minter

• Decision Date: 11 September 2001
• Docket Number: No. SCBD 4358.,SCBD 4358.
• Citation: 37 P.3d 763,2001 OK 69
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Joseph Oliver MINTER, V, Respondent.
• Court: Oklahoma Supreme Court

37 P.3d 763

2001 OK 69

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Joseph Oliver MINTER, V, Respondent.

No. SCBD 4358.

Supreme Court of Oklahoma.

September 11, 2001.

Rehearing Denied October 22, 2001.

Allen Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complainant.

Joseph Oliver Minter, V, Minter & Minter, Madill, OK, pro se.

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 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 The Oklahoma Bar Association (the Bar or complainant) charged Joseph Oliver Minter, V (Minter or respondent), a licensed lawyer, with nine counts of professional misconduct set forth in an original and two amended complaints. The parties submitted stipulations as to the facts only. A hearing was held before a trial panel (the trial panel) of the Professional Responsibility Tribunal (PRT) on 2 November 1999, after which the latter issued a report containing its findings of fact and conclusions of law together with a recommendation for discipline. The trial panel found respondent guilty of all nine counts of professional misconduct. It recommended that he be suspended for two years and directed to pay the costs of this proceeding.

II BAR DISCIPLINARY PROCEEDINGS ARE NOT SUBJECT TO THE OKLAHOMA OPEN MEETING ACT²

¶ 3 Respondent has moved for the dismissal of all charges against him or for the remand of this proceeding to the PRT for additional hearings on the ground that the court lacks subject matter jurisdiction. This is so, he argues, because the Bar and the Professional Responsibility Commission are subject to the provisions of the Oklahoma Open Meeting Act and have failed to abide by its terms. We disagree.

¶ 4 The Oklahoma Open Meeting Act (the Act) provides that all meetings of public bodies shall be held at a specified time and place convenient to the public and shall be open to the public.³ The Act specifically sets out the entities that fall within the meaning of the term "public body."⁴ The state judiciary is expressly excluded.⁵ ¶ 5 The responsibility for legislation, prosecution, and adjudication on the subject of professional discipline of legal practitioners is constitutionally reposed in the judicial department.⁶ The judiciary's authority over professional discipline is also conferred by statute.⁷ The court performs the legislative and adjudicative functions directly, but in order to meet the requirements of due process has delegated the prosecutorial or enforcement function to the organs of the state bar.⁸ In performing this role, the Bar acts as an official arm of this court.⁹ The Professional Responsibility Commission, which is a subordinate entity of the Bar, is linked to this court in a like manner.¹⁰

¶ 6 Just as a grand jury is an accusatory appendage of the courts in the context of criminal prosecutions, so, too, are the Bar and the Professional Responsibility Commission the enforcement mechanism for and on behalf of this court in the context of professional discipline. The prosecutorial machinery for the enforcement of bar discipline is an essential component of the state judiciary and as such is exempt from the provisions of the Oklahoma Open Meeting Act.¹¹

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

¶ 7 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.¹² 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.¹³ 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,¹⁴ in which the conclusions and recommendations of the trial panel are neither binding nor persuasive.¹⁵ In this undertaking we are not restricted by the scope-of-review rules applicable in the context of corrective relief on appeal or certiorari. In the latter context we may have to leave undisturbed another tribunal's findings of fact.¹⁶

¶ 8 The court's duty can be discharged only if the trial panel submits to us a complete record of the proceedings.¹⁷ 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 charged lawyer.¹⁸

¶ 9 Respondent contends that the record in this case is not sufficient for this court's de novo review.¹⁹ One of his arguments — that the trial panel's report improperly omits a discussion of his motion to dismiss the charges for failure of the Bar and the Professional Responsibility Commission to comply with the Oklahoma Open Meeting Act — has been rendered moot by our holding that the Act does not apply to bar disciplinary proceedings. Respondent's remaining objections rest on several alleged instances of noncompliance by the trial panel with the rules governing the contents of its report. Respondent requests that we remand the case to the trial panel "for appropriate amendment of the Report."

¶ 10 Respondent objects to the trial panel report for its failure (1) to recite anywhere within its text the standard of proof — clear and convincing evidence — necessary to establish a violation,²⁰ (2) to provide a record specific enough to enable the court to identify which findings of fact establish a particular violation,²¹ and (3) to inform the court that the Bar moved at the hearing before the trial panel to dismiss one of the charges.

¶ 11 Respondent's quest for relief based upon errors in the trial panel's report reveals a fundamental misunderstanding of the respective roles played by the Bar, the Professional Responsibility Tribunal, and this court in the disposition of a disciplinary matter. The organs of the state bar are charged with conducting a preliminary investigation of the facts for the sole purpose of determining whether charges should be brought against a lawyer.²² This prefatory assessment of the proof is then conveyed to the court in the trial panel's report. The findings of fact, conclusions of law, and recommendation of discipline proposed by the trial panel are advisory only.²³ They do not constitute another tribunal's decision and are neither binding nor persuasive.²⁴The duty to determine from the evidence whether the allegations of misconduct are established by clear and convincing evidence resides in this court alone.²⁵

¶ 12 The Bar and the PRT need only provide a sufficient record to serve as a basis for the court's exercise of its duty as the sole and final arbiter of a legal licensee's standing.²⁶ Sufficiency in this regard does not require perfect compliance with every rule applicable to the contents of the trial panel's report. Fidelity to strict rules of procedure should not interfere with our duty in a disciplinary proceeding to determine by legal and ethical standards an attorney's fitness to continue the practice of the profession.²⁷ "[T]he public interest in the ethical practice of law outweighs any blind devotion to procedure."²⁸ As long as the respondent receives a fair hearing and the record presents clear and convincing evidence of the facts upon which the allegations rest, the trial panel's deviation from the rules governing the transmission of its conclusions — whether of fact or law — is harmless.

¶ 13 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.

IV THE CHARGES AGAINST RESPONDENT

A. VIOLATIONS BASED ON DEALINGS WITH CLIENTS

1. Counts One and Two: The Cothran Grievance.

¶ 14 On 20 December 1994 the District Court, Pontotoc County, appointed respondent to serve as co-conservator of Mary L. Cothran (Ms. Cothran), an elderly woman confined to a nursing home. In July of 1993, Ms. Cothran's nephew, Tom Cothran (Mr. Cothran), had discovered that the person then serving as his aunt's conservator had been embezzling money and/or property from her estate. In appointing respondent as Ms. Cothran's new conservator, the court directed him to seek restitution of the assets embezzled by the former conservator as well as pursue legal action against anyone who might be liable for the loss.²⁹

¶ 15 Prior to respondent's appointment, Mr. Cothran had engaged a Tulsa accounting firm to investigate and report on the amount embezzled. The report was not provided to respondent until April or early May 1995. Respondent, theorizing that the former conservator's law partners might be liable along with the former conservator, then met with lawyers for all three in an effort to negotiate a settlement. On 22 May 1995, while these negotiations were proceeding, Ms. Cothran died.

¶ 16 When the negotiations failed to produce a settlement, respondent filed an action in June 1995 against the former conservator and his law partners to recover the embezzled funds. Having as yet not filed a probate proceeding nor sought the appointment of a special administrator,³⁰ respondent filed the action in his capacity as conservator.³¹ The action was filed within the limitations...