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

• Decision Date: 09 June 1998
• Docket Number: No. SCBD,SCBD
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Joseph O. MINTER, V, Respondent. 4229.
• Court: Oklahoma Supreme Court

Page 208

961 P.2d 208

1998 OK 59

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

No. SCBD 4229.

Supreme Court of Oklahoma.

June 9, 1998.

As Corrected June 12, 1998.

Original Proceedings for Attorney Discipline.

¶0 Complainant, Oklahoma Bar Association, filed formal complaint against attorney alleging violations of Rule 5.2 of Rules Governing Disciplinary Proceeding and Rules 1.1, 1.3, 1.4 of Oklahoma Rules of Professional Conduct. Complainant requested enhancement of discipline based on two previous private reprimands by the Professional Responsibility Commission. After hearing, Professional Responsibility Tribunal recommended six-month suspension from practice of law.

RESPONDENT PUBLICLY CENSURED; ORDERED TO PAY COSTS.

Joseph O. Minter, V, Madill, pro se.

Dan Murdock, General Counsel, Mike Speegle, Asistant General Counsel, Oklahoma Bar Association, Oklahoma City.

HODGES, Justice.

I. OVERVIEW

¶1 Complainant, Oklahoma Bar Association, alleged two counts of misconduct warranting discipline against respondent attorney, Joseph O. Minter, V (Respondent). The Complainant sought enhancement of the discipline based on two prior reprimands by the Professional Responsibility Commission (Commission). The Professional Responsibility Tribunal (PRT) found that Respondent's conduct violated Rule 5.2 of the Rules Governing Disciplinary Proceedings, Okla.Stat. tit. 5, ch. 1, app. 1-A and Rules 1.1, 1.3, and 1.4 of the Oklahoma Rules of Professional Conduct, Okla.Stat. tit. 5, ch. 1, app. 3-A (1991).

¶2 In fashioning the degree of discipline to be recommended in the current proceedings, the PRT found the Respondent's prior reprimands to be a valid consideration pursuant to Rule 1.7 of the Rules Governing Disciplinary Proceedings. The PRT recommended that the Respondent be suspended from the practice of law for six months. We find the six month suspension too harsh and find a public reprimand to be the appropriate discipline.

II. FACTS

¶3 The uncontested facts are as follows. The Respondent was retained by Mary Smith to represent her son Gene Youngblood on a charge of first degree murder in the District Court of Coal County. Youngblood was convicted at a jury trial and on December 22, 1995, was sentenced to life in prison without parole. The Respondent filed a notice of intent to appeal with the District Court in Coal County. However, he failed to also file a designation of record in the district court as required by law. Because the Respondent failed to file the proper papers to perfect the appeal, the Oklahoma Appellate Indigent Defense System (OAIDS) did not accept the case.

¶4 After Youngblood was sentenced, Mary Smith attempted to contact the Respondent numerous times both by telephone and letter regarding the appeal. Respondent did not return any of her calls or respond to any of her letters. As stated, because of Respondent's failure to properly perfect the appeal, OAIDS refused to accept the case.

¶5 On May 21, 1996, Mary Smith filed a grievance with the Complainant against the Respondent. After the grievance was filed, the Complainant's office sent three letters to Respondent. The first letter was sent to the Respondent on June 4, 1996, and he was given two weeks to respond to the grievance in writing. On July 1, 1996, another letter was sent to the Respondent informing him that Rule 5.2 of the Rules Governing Disciplinary Proceedings required an answer within twenty days. On July 23, 1996, the Complainant sent a third letter by certified mail warning the Respondent that a failure to respond would be a ground for discipline. The Respondent did not respond to any of the three letters.

¶6 Because the Respondent failed to respond to its request for information, the Complainant had to subpoena him for a deposition on September 9, 1996. At the deposition, Respondent was cooperative and testified he had no legal excuse for his failure to respond to the Complainant's letters.

¶7 On the same day as the deposition, Respondent filed an application for an appeal out of time on behalf of Mr. Youngblood. On September 17, 1996, Respondent received a letter from OAIDS informing him that his application and supporting documents were incorrect and that OAIDS again declined to accept appointment. Finally, the application to file the appeal out of time was granted on October 30, 1996.

III. PROCEDURAL HISTORY

¶8 The Complainant filed a formal complaint against the Respondent alleging two counts of violations of the ORPC and asking an enhancement of the discipline based on the Respondent having received two prior private reprimands from the Commission: one in OBAD No. 983, on April 27, 1990, and the other in OBAD No. 1246 on March 29, 1996. Only the date, the case number, and the fact the private reprimands existed were stated in the formal complaint. None of the allegations, supporting evidence, mitigation, or aggravation regarding the two private reprimands was set forth.

¶9 Prior to the hearing the Complainant offered to recommend to the PRT that the Respondent receive a private reprimand to be administered by this Court. The Respondent initially agreed to the stipulations and a private reprimand. After being informed that this Court was not bound by the stipulations, Respondent withdrew his consent to the stipulations and recommended discipline. The PRT heard the matter on April 9, 1997, and found that the Respondent had violated Rule 5.2 of the Rules Governing Disciplinary Proceedings and Rules 1.1, 1.3, and 1.4 of the Oklahoma Rules of Professional Conduct. The PRT recommended that the Respondent be suspended from the practice of law for a period of six months.

IV. ISSUES

¶10 The Respondent raises the following two issues on the merits of this proceeding before this Court. First, the use of the two private reprimands before the Commission violates his due process rights. Second, the current disciplinary process denies equal protection for attorneys who reside in rural areas. The Respondent also argues that the appropriate discipline should be a reprimand, not a six-month suspension.

¶11 The Respondent submits that there are a number of relevant facts not before this Court. He has incorporated these into his brief and asks this Court to consider them. The Respondent had ample opportunity at the hearing before the PRT to submit any facts that he wished this Court to consider. This Court will not consider facts not part of the record before this Court. State ex rel. Oklahoma Bar Ass'n v. O'Neal, 1993 OK 61, p 11, 852 P.2d 713, 716.

¶12 This Court has the power to return the case for the taking of further evidence when the record is insufficient "for a thorough probe into essential facts and for crafting the appropriate discipline." State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, p 9, n. 13, 914 P.2d 644, 648 n. 13. Because the record is adequate for de novo review, it is not necessary to return the case to the PRT for further proceedings. See id. at p 10, 914 P.2d at 648. We review de novo the record as presented to this Court.

V. ENHANCEMENT BASED ON PRIOR DISCIPLINE

A. Purpose of Rule 6.2 of the Rules Governing Disciplinary Proceedings

¶13 "If prior conduct resulting in discipline ... is relied upon to enhance discipline, the acts or conduct relied upon shall be set forth" in the formal complaint. Rule 6.2, Rules Governing Disciplinary Proceedings, Okla.Stat. tit. 5, ch. 1, app. 1-A (1991). The purpose of this rule is to apprise this Court of all the facts necessary to shape the proper discipline.

¶14 At the PRT hearing, the Complainant submitted copies of the two private reprimands which contained the facts surrounding the reprimands. The reprimand issued on April 27, 1990, recited that the Respondent had neglected to file a case which he had agreed to handle within the statute of limitations period. It also recited that the Respondent's answer to the Complainant's inquiry indicated that he had solved the matter and was still looking forward to representing the client.

¶15 The reprimand issued on March 29, 1996, recited that the Respondent had neglected to file a formal divorce decree for several months after the divorce was awarded. Because of the Respondent's neglect, the matter was not formally resolved for more than one year after the divorce was awarded. Further, in violation of the Rules Governing Disciplinary Proceedings, the Respondent failed to respond to the Complainant's requests and failed to cooperate with the investigation. The submission of the private reprimands provides this Court with the necessary information regarding these previous reprimands to determine the proper discipline.

¶16 Even though the Complainant did not comply with Rule 6.2 of the Rules Governing Disciplinary Proceedings by failing to include in the complaint the allegations on which the private reprimands were based, there is no evidence that the Respondent was prejudiced by this omission. Because the purpose of attorney disciplinary proceedings is for the "protection of the courts, the public and the profession ... strict rules of procedure should be relaxed to the end" that the determination of the proper discipline is based "on the legal and ethical merits," State ex rel. Oklahoma Bar Ass'n v. Brandon, 1969 OK 28, p 13, 450 P.2d 824, 828; State ex rel. Oklahoma Bar Ass'n v. Bradley, 1987 OK 78, p 12, 746 P.2d 1130, 1132, when an attorney's due process rights are not violated.

¶17 While this Court agrees with the Respondent that the Complainant should follow the rules which apply to proceedings brought by it, the purpose for including facts of prior disciplinary proceedings in the complaint is to aid this Court in its decision-making process. The purposes of attorney discipline would not be met if this Court did not consider the prior reprimands. For these reasons, it is proper that this Court consider the Respondent's two previous private reprimands in...