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

• Decision Date: 03 April 2012
• Docket Number: SCBD No. 5735.
• Citation: 275 P.3d 133,2012 OK 29
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. James Albert CONRADY, Respondent.
• Court: Oklahoma Supreme Court

2012 OK 29

275 P.3d 133

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v.James Albert CONRADY, Respondent.

SCBD No. 5735.

Supreme Court of Oklahoma.

April 3, 2012.

BAR DISCIPLINARY PROCEEDING¶ 0 A disciplinary proceeding was commenced by the Oklahoma Bar Association against attorney James Albert Conrady. The panel issued a report recommending Conrady's license to practice law be suspended for a period of two years and one day.IN ACCORDANCE WITH RULE 1.7 OF THE RULES GOVERNING DISCIPLINARY PROCEEDINGS, RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; RESPONDENT IS ORDERED TO PAY COSTS OF $1,426.41.

Gina Hendryx, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Rod W. Wiemer, Okmulgee, Oklahoma, for Respondent.

GURICH, J.

¶ 1 On March 16, 2011, the Oklahoma Bar Association (“OBA”) filed a complaint against attorney James Albert Conrady (“Conrady”) for alleged professional misconduct, as authorized by Rule 6.1 of the Rules Governing Disciplinary Proceedings (“RGDP”).¹ After hearing the testimony of witnesses, and being presented with several exhibits, the Professional Responsibility Tribunal (“PRT”) concluded that Conrady's actions were a violation of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct (“ORPC”).² The PRT also found Conrady had violated RGDP Rule 1.3. The Report of the Trial Panel recommended Conrady be suspended for a period of two years and one day.

Factual and Procedural History

¶ 2 On January 30, 2009, Conrady returned to Oklahoma following a three-week trip to the Middle East. Conrady was met at the Tulsa airport by his longtime girlfriend, Janice Pierce (“Pierce”), for a return trip to Okmulgee. During the drive home, Pierce informed Conrady she no longer wanted to continue their relationship. Pierce dropped Conrady off at his apartment; however, she refused to discuss the relationship any further. At some point Pierce also advised Conrady that she had begun dating a fellow Sunday school teacher at her church, Steve McCroskey (“McCroskey”).

¶ 3 Over the next twenty-four hours, Conrady became increasingly despondent. He began consuming vodka and taking pain medication. Pierce ignored Conrady's repeated efforts to contact her during this period of time. On the evening of February 1, an intoxicated and emotionally charged Conrady armed himself with a .45 caliber semi-automatic handgun and drove to McCroskey's residence. ³ Fortunately, prior to Conrady's arrival, McCroskey and Pierce had departed to return McCroskey's six-year-old daughter to her mother in Wilson, Oklahoma. Conrady arrived at the residence and forcibly entered the house, armed with the loaded pistol. After finding no one present, Conrady fired rounds throughout the home, including into a bathroom mirror, a television, and other personal items belonging to Pierce's boyfriend.⁴ One of the rounds pierced an interior wall and the projectile was discovered in a bedroom normally occupied by McCroskey's daughter. Another round penetrated the outside wall of the house and lodged in a neighbor's storm door. After exiting the home, Conrady discharged his firearm multiple times into Pierce and McCroskey's unoccupied vehicles. Conrady left the scene and returned to his home in downtown Okmulgee.

¶ 4 Shortly after the incident, police arrived at Conrady's residence to discuss his involvement in the shooting. Conrady refused to authorize a search of his property; however, officers obtained a search warrant and retrieved the .45 caliber pistol used in the shooting. Conrady was placed under arrest and was subsequently charged by the Okmulgee County District Attorney with six counts in State of Oklahoma v. Conrady, Case No. CF–2009–22. The six criminal charges filed by the district attorney were as follows:

Count 1—Burglary, second degree ( 21 O.S.2001 § 1435 );

Count 2—Possession of a firearm while in the commission of a felony ( 21 O.S.Supp. § 1287 );

Count 3—Reckless conduct with a firearm ( 21 O.S.2001 § 1289.11 );

Count 4—Possession of a firearm under the influence of intoxicants ( 21 O.S.2001 § 1289.9 );

Count 5—Malicious injury to an automobile ( 47 O.S.2001 § 4–104 );

Count 6—Malicious injury to an automobile ( 47 O.S.2001 § 4–104 ).

On June 10, 2010, Conrady pled nolo contendere to all six counts. He was ordered to return for sentencing on August 18, 2010. After a continuance, the matter was rescheduled for sentencing on October 13, 2010. Conrady withdrew his original plea at the October hearing and pled guilty to the six charges. On December 15, 2010, the trial judge issued an order deferring sentencing on all six counts, with the probationary periods on each to run concurrently over a period of five years. Conrady was also required to pay court costs and restitution to both of his victims.⁵

¶ 5 The OBA filed its disciplinary proceeding against Conrady on March 16, 2011.⁶ A hearing before the PRT was held on May 24, 2011. After weighing all of the testimony, exhibits and stipulations, the PRT issued a report determining Conrady's behavior amounted to a violation of ORPC Rule 8.4(b) and RGDP 1.3. The PRT recommended Conrady be suspended for a period of two years and one day.⁷

Standard of Review

¶ 6 Review of disciplinary proceedings before the PRT is conducted by this Court using a de novo standard. State of Oklahoma ex rel. Okla. Bar Ass'n v. Cox, 2011 OK 73, ¶ 10, 257 P.3d 1005, 1008. As we have announced in prior decisions:

The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with [this Court] in the exercise of our exclusive original jurisdiction in bar disciplinary matters.

State of Oklahoma ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21, (citing State of Oklahoma ex rel. Okla. Bar Ass'n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 262). Factual and legal determinations of the PRT are not binding on us, and any recommendations are merely advisory. Id. Likewise, we are required by RGDP Rule 6.12 to ensure the OBA has established charges of misconduct by clear and convincing evidence. State of Oklahoma ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶ 13, 212 P.3d 1186, 1192. Admissions or stipulations must be supported by testimony and/or exhibits, and we will evaluate the weight and credibility of the evidence presented to determine if a lawyer has violated rules governing their professional conduct. Id.

Analysis

¶ 7 ORPC Rule 8.4(b) defines as professional misconduct, any criminal act which reflects adversely on an attorney's “honesty, trustworthiness, or fitness as a lawyer.” (Emphasis added). The sole basis of the OBA's proceeding against Conrady was the shooting incident of February 1, 2009; as such there was no contention that Conrady had breached any obligation to a client or that the criminal conduct was related to his practice of law. Thus, we are called upon to determine whether those criminal actions reflect on Conrady's fitness to practice law. More particularly, we must examine whether criminal conduct may serve as the basis for disciplinary measures, when it does not (1) call into doubt the honesty or trustworthiness of a lawyer, or (2) directly involve his/her practice of law, or a client relationship.

¶ 8 Conrady stipulated that his conduct amounted to violations of the ethical constraints imposed by the ORPC and RGDP. Despite this acknowledgment we are bound to review the record to ensure the allegations of misconduct are supported by clear and convincing evidence. State of Oklahoma ex rel. Okla. Bar Ass'n v. Wilcox, 2009 OK 81, ¶ 4, 227 P.3d 642, 647. The testimony and exhibits reflect that Conrady pled guilty to multiple criminal offenses, including two felony charges. Entering a plea of guilty or nolo contendre to a felony charge has routinely been viewed by this Court as satisfactory evidence of professional misconduct. State of Oklahoma ex rel. Okla. Bar Ass'n v. Golden, 2008 OK 39, ¶ 4, 201 P.3d 862, 863; State of Oklahoma ex rel. Okla. Bar Ass'n v. Shanbour, 2003 OK 116, ¶ 5, 84 P.3d 107, 110; State of Oklahoma ex rel. Okla. Bar Ass'n v. Arnett, 1991 OK 44, ¶¶ 2, 9, 815 P.2d 170, 171–172; State of Oklahoma ex rel. Okla. Bar Ass'n v. Armstrong, 1990 OK 9, ¶ 9, 791 P.2d 815, 818.

¶ 9 We have also held that the criminal acts of a lawyer may be sufficient to establish violations of Rule 8.4 and Rule 1.3, even when the illicit conduct is not directly related to the practice of law. For example, in State of Oklahoma ex rel. Okla. Bar Ass'n v. McBride, 2007 OK 91, ¶ 15, 175 P.3d 379, 386, we determined that multiple alcohol-related offenses were indicative of the attorney's “indifference to legal obligations and ... [a pattern of] conduct that reflects adversely on the legal profession.” Although unrelated to an attorney's practice, guilty pleas stemming from alleged sexual assaults, were deemed clear and convincing evidence the accused had violated ORPC Rule 8.4(b) and RGDP Rule 1.3. State of Oklahoma ex rel. Okla. Bar Ass'n v. Garrett, 2005 OK 91, ¶ 13, 127 P.3d 600, 605, see also State of Oklahoma ex rel. Okla. Bar Ass'n v. Wilburn, 2006 OK 50, ¶ 10, 142 P.3d 420, 423 (finding violation of ORPC Rule 8.4(b) and RGDP Rule 1.3 as a result of lawyer's guilty plea to charge of outraging public decency); State of Oklahoma ex rel. Okla. Bar Ass'n v. Murdock, 2010 OK 32, ¶ 15, 236 P.3d 107, 114 (attorney's Alford plea to one count of outraging public decency is clear and convincing evidence of RGDP Rule 1.3 violation).

¶ 10 Fitness to practice law, as contemplated by ORPC Rule 8.4(b), “encompasses more than an absence of detriment to specific clients.” State of Oklahoma ex rel. Okla. Bar Ass'n v. Aston, 2003 OK 101, ¶ 11, 81 P.3d 676, 678. The Comments to Rule 8.4(b) are instructive:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an...