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

• Decision Date: 15 May 2007
• Docket Number: SCBD No. 5299.,OBAD No. 1686.
• Citation: 163 P.3d 527,2007 OK 31
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Barry ALBERT, Respondent.
• Court: Oklahoma Supreme Court

163 P.3d 527

2007 OK 31

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Barry ALBERT, Respondent.

OBAD No. 1686.

SCBD No. 5299.

Supreme Court of Oklahoma.

May 15, 2007.

Bar Discipline Proceeding.

¶ 0 The complainant, Oklahoma Bar Association, charged the respondent, John Barry Albert, with eleven counts of professional misconduct associated with the attorney's ineffective communication with clients and neglect of clients. The Bar Association also requested an order for interim suspension of the attorney, alleging that he was incapable of practicing law due to drug and alcohol abuse. The attorney agreed to the interim suspension, and we suspended him on April 24, 2006. Shortly after the attorney was released from a rehabilitation program, the trial panel held a hearing on May 23, 2006, and recommended that respondent be reinstated but disciplined for his misconduct. The trial panel recommended a one year suspension, placement under supervision or probation with stipulations for three years, and that costs be imposed. The Bar Association joined with the respondent in urging that he be reinstated immediately. This Court remanded the matter to the trial panel for another hearing because the attorney failed to meet the burden of proof necessary for reinstatement. Rule 6 disciplinary action and a determination of the payment of costs were deferred. Another reinstatement hearing was held on January 23, 2007, and the trial panel recommended reinstatement, placement under supervision or probation with stipulations for three years, and discipline and costs be imposed. We hold that: 1) the attorney met the requisite burden of proof necessary for reinstatement; 2) the attorney's misconduct warrants discipline of a retroactive suspension from the practice of law from March 9, 2006, until the day this opinion is issued; and 3) costs are assessed in the amount of $912.00 to be paid in three monthly installments beginning 90 days after this opinion is issued.

REINSTATEMENT GRANTED; DISCIPLINE IMPOSED AND RESPONDENT SUSPENDED; COSTS ASSESSED.

Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

David B. Autry, Oklahoma City, OK, for Respondent.

KAUGER, J.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, John Barry Albert (attorney/respondent), with eleven counts of professional misconduct resulting from irresponsible and neglectful representation of clients. The Bar Association alleged that the attorney's actions involved ineffective communication with clients, neglecting clients, mishandling cases, and failing to appear in court in behalf of clients in violation of Rules 1.1, 1.3, 1.4, 1.5, 1.16, 3.2, 8.1(b), and 8.4(a) and (d) of the Rules of Professional Conduct¹ and Rules 1.3, 5.2, and 10 of the Rules Governing Disciplinary Proceedings.² The Bar Association also sought an interim suspension of the attorney pursuant to Rule 6.2A of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001 Ch. 1, App. 1-A³ alleging that he was incapable of practicing law due to drug and alcohol abuse. We suspended him on April 24, 2006. Upon a de novo review,⁴ we hold that: 1) the attorney met the requisite burden of proof necessary for reinstatement; 2) the attorney's misconduct warrants discipline of a retroactive suspension from the practice of law from March 9, 2006, until the day this opinion is issued; and 3) attorney is responsible for partial payment of costs in the amount of $912.00 to be paid in three monthly installments beginning 90 days after this opinion is issued.⁵

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Respondent became a member of the Oklahoma Bar Association in 1992. He worked as a public defender for three years before going into private practice in which he represented mostly criminal defendants. According to the attorney, in March and April of 2005, his life began to crumble when he started drinking heavily and abusing cocaine. It was during this time that respondent began avoiding clients and neglecting cases. He attributes his drug and alcohol abuse and client neglect to the way in which he handled marital problems and the death of his father.

¶ 3 On April 29, 2005, the Bar Association received the first of eleven grievances from respondent's clients (spanning from April of 2005 to March of 2006) regarding his neglectful representation. After an in-court intervention on March 9, 2006, respondent entered Valley Hope treatment center in Cushing, Oklahoma, to receive treatment for alcohol and cocaine abuse. On March 24, 2006, the Bar Association filed a complaint against the attorney with an application for an order of emergency interim suspension.⁶

¶ 4 The application alleged that the attorney was incapable of practicing law as defined by Rule 10.1(a)(b) and (c) of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A.⁷ We entered an order on April 3, 2006, directing the attorney to show cause why such an interim suspension should not be entered. On the same day, respondent was discharged from Valley Hope after completing an in-patient treatment program. On April 12, 2006, the attorney filed a response to our order, agreeing to an immediate interim suspension until he could demonstrate his fitness to resume the practice of law. On April 24, 2006, we determined that respondent was incapable of practicing law and suspended him from the practice of law.

¶ 5 On May 23, 2006, the trial panel held a closed evidentiary hearing in which the parties offered joint exhibits, stipulated to the complaint, and presented the testimony of witnesses and arguments before the tribunal. On May 26, 2006, the parties jointly moved and were allowed to supplement the record with additional exhibits. On July 7, 2006, the attorney and the Bar Association, conceding confusion as to the proper procedures to follow, moved to supplement the record and filed a petition for rehearing, which was in actuality a petition for reinstatement. The confusion arose concerning whether the attorney needed to seek a separate reinstatement because he had been suspended, or whether the disciplinary hearing was sufficient to include a request for reinstatement. The trial panel determined on May 23, 2006, that a sufficient record was made to determine both reinstatement as well as discipline.

¶ 6 The trial panel filed its report on August 4, 2006, recommending reinstatement from the interim suspension and a one year suspension for the attorney's misconduct with supervision or probation for three years with stipulations.⁸ The trial panel also recommended that respondent pay the costs of the proceeding and any costs associated with the terms of his probation. On December 12, 2006, we remanded the matter to the trial panel for another hearing on reinstatement because the attorney failed to meet the burden of proof necessary for reinstatement.⁹

¶ 7 A hearing was held before the trial panel on January 23, 2007, and the trial panel issued its report on March 9, 2007. The trial panel recommended reinstatement, placement under supervision or probation with stipulations for three years, and discipline and costs be imposed. The briefing cycle was complete on March 29, 2007, when the parties filed a joint brief in support of reinstatement and a waiver of further briefs.

I.

¶ 8 THE ATTORNEY MET THE BURDEN OF PROOF NECESSARY FOR REINSTATEMENT.

¶ 9 The genesis of this cause is Rule 10, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch.1, App-1, which concerns suspension of a lawyer from the practice of law due to personal incapacity. Personal incapacity includes mental or physical illness, active misfeasance, or repeated neglect or habitual use of alcohol, drugs, or other mentally or physically disabling substances.¹⁰ Respondent's incapacity and his threat of substantial and irreparable public harm became obvious, and the Bar Association properly sought an immediate interim suspension of the attorney's license to practice law.¹¹ Respondent agreed to the interim suspension and admitted that he was incapable of practicing law.¹² We agreed and suspended respondent on April 24, 2006, until further order of the Court.

¶ 10 Once the Court issues an interim suspension, the next questions in the proceedings become: 1) whether the attorney can make an adequate showing that the incapacity is removed—i.e., that the attorney now has the personal capacity to resume the practice of law; and 2) what amount of discipline, if any, is due for the attorney's misconduct toward clients. The Bar Association and the attorney argue that he has demonstrated proof that: 1) the attorney is no longer threatened by a personal incapacity; 2) the attorney's conduct will conform to the high standards required of a member of the bar; and 3) the attorney has demonstrated that he satisfies the other pertinent criteria for reinstatement.

¶ 11 The responsibility of this Court in disciplinary proceedings is not to punish but rather to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession.¹³ The nondelegable, constitutional responsibility to regulate the practice and the ethics, licensure, and discipline of legal practitioners is solely vested in this Court.¹⁴

¶ 12 In a Rule 10 proceeding the main objective is to minimize the potential risk to the public of harm from a practitioner's incapacity. The focus is not exclusively on the past; rather the focus is on the practitioner's present condition and its future consequences.¹⁵ A disability does not shield a practitioner from professional responsibility. Where the facts so warrant, discipline could be imposed even when the attorney is also found to be personally incapable of practicing law.¹⁶ However, the disability may serve as a mitigating factor when searching for suitable...