State ex rel. Oklahoma Bar Ass'n v. Burns, OBAD No. 1679.

• Decision Date: 10 October 2006
• Docket Number: OBAD No. 1679.,SCBD No. 5144.
• Citation: 145 P.3d 1088,2006 OK 75
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Tony Ray BURNS, Respondent.
• Court: Oklahoma Supreme Court

Page 1088

145 P.3d 1088

2006 OK 75

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Tony Ray BURNS, Respondent.

OBAD No. 1679.

SCBD No. 5144.

Supreme Court of Oklahoma.

October 10, 2006.

¶ 0 The Oklahoma Bar Association filed a disciplinary proceeding under Rule 6 against respondent alleging professional misconduct for multiple violations of the criminal law. Respondent stipulated to the facts alleged and the conclusions of law. A trial panel of the Professional Responsibility Tribunal found respondent's misconduct warranted suspension from the practice of law for six months together with supervised probation for two years and payment of costs. Upon review we find the discipline recommended by the panel is appropriate and we adopt it.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR SIX MONTHS, PLACED UNDER CONDITIONED PROBATION FOR TWO YEARS AND ORDERED TO PAY COSTS.

Dan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

C.W. Bill Morgan, Anadarko, OK, for Respondent.

EDMONDSON, J.

¶ 1 In this proceeding against a lawyer for imposition of professional discipline we are asked to decide whether six months suspension from the practice of law together with two years supervised probation and assessment of costs is the appropriate disciplinary sanction for this respondent's professional misconduct. We find that it is and we adopt the recommendation of the Professional Responsibility Tribunal, (PRT).

I.

¶ 2 On December 16, 2005, the Oklahoma Bar Association, (complainant), filed a complaint pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings, (RGDP), 5 O.S.2001, ch. 1, app. 3-A, against Tony Ray Burns, (respondent), a licensed attorney, alleging violations of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, ch. 1, app. 3-A, in two counts setting forth multiple violations of the criminal law of Oklahoma prohibiting driving a motor vehicle while intoxicated or under the influence of alcohol. The complaint alleged these criminal acts demonstrate respondent's indifference to legal obligations, reflect adversely on the Bar, constitute a violation of the mandatory provisions of Rule 8.4, (a) and (b), ORPC, and Rule 1.3, RGDP, and warrant the imposition of professional discipline.

¶ 3 On January 24, 2006, the PRT held a hearing to consider the charges. It heard the testimony of Mr. Burns and received evidence by exhibits. It also admitted into evidence the parties' stipulations of fact and agreed conclusions of law, and their agreed recommendation that public censure, two years probation under conditions and payment of costs would be appropriate discipline. Respondent stipulated that his conduct did violate the Rules as alleged, admitted that he had abused alcohol and was an alcoholic, and asked that certain mitigating circumstances be taken into account in the determination of his discipline.

¶ 4 Respondent stipulated to the following facts alleged by complainant in Count I of the complaint. On January 17, 2005, he was arrested in Caddo County for the crime of driving a motor vehicle while under the influence of alcohol, and was charged with a felony; and on February 4, 2005, he again was arrested in Caddo County for the crimes of driving a motor vehicle while under the influence of alcohol, charged as a felony, and transporting an open container of liquor. On February 8, 2005, a newspaper article was published which described his arrest and previous similar violations, and was seen in the Office of the General Counsel of the Bar Association.

¶ 5 Complainant then began an investigation and, on February 14, 2005, sent a letter to respondent's counsel requesting the facts and circumstances surrounding the reported felony arrest. Counsel responded on March 1, 2005, stating his client had contacted Lawyers Helping Lawyers and entered Valley Hope Treatment Facility on February 28, 2005. On April 7, 2005, counsel sent complainant a letter from Valley Hope Treatment Services which confirmed that respondent had successfully completed a 28-day treatment program and had been attending Alcoholics Anonymous meetings twice a week.

¶ 6 On June 9, 2005, counsel notified complainant that respondent had waived his preliminary hearing for the two pending charges of driving a motor vehicle while under the influence of alcohol, as second and subsequent offenses, in the District Court of Caddo County, and would be entering pleas of guilty. On July 20, 2005, respondent entered blind pleas to two felony charges of driving a motor vehicle while under the influence of alcohol, second and subsequent offense, in cases numbered CF-2005-17 and CF-2005-36. In CF-2005-17, he was sentenced to a term of three years in the Oklahoma Department of Corrections, all suspended, to run concurrently with the sentence in CF-2005-36 and ordered to pay a fine in the amount of $1,000.00 and costs. In CF-2005-36, he received a five-year deferred sentence to run concurrently with CF-2005-17 and fined $1,000.00 plus costs.

¶ 7 Respondent was also ordered by the district court to comply with certain rules and conditions of probation which required him to complete inpatient treatment, attend Aftercare every two weeks for twelve months, attend AA meetings at least twice weekly, have a monthly urinalysis, voluntarily give up his driver's license for one year, meet with an AA sponsor for at least one hour a week, and execute a Lawyers Helping Lawyers contract.

¶ 8 In Count II, respondent stipulated to the allegations that he had previously been charged with alcohol related offenses and admitted the following facts concerning those incidents:

1) In 1997, in Grady County, respondent was charged with driving while impaired, a misdemeanor and received a three-month deferred sentence and a $100.00 fine plus court costs;

2) On August 17, 1999, in Caddo County, respondent was arrested for driving under the influence of intoxicating liquor, a misdemeanor, to which he entered a plea of nolo contendere, receiving a one-year deferred sentence with costs and an order to continue counseling once a week during the probation term;

3) On March 3, 2001, in Caddo County, respondent was arrested for being in actual physical control of a motor vehicle while under the influence of intoxicants;

4) On October 31, 2001, in Caddo County, respondent was arrested for three counts of alcohol-related traffic violations;

5) On January 16, 2002, in Caddo County, respondent entered pleas of nolo contendere to misdemeanor charges of driving under the influence, failure to yield while turning left and driving without a valid drivers license, all in case no. CM-2001-876, for which he was sentenced to a one-year suspended sentence, ordered to pay a fine of $500.00 plus costs and required to enter a 28-day inpatient treatment program; and

6) On January 25, 2002, in Caddo County, respondent entered pleas of nolo contendere in case no. CM-2001-161 and was given a one-year deferred sentence, to run concurrently with CM-2001-876, fined $500.00 plus costs and required to enter a 28-day inpatient treatment program.

¶ 9 Respondent testified he joined the Oklahoma Bar Association in 1974 and had served as the District Attorney for Caddo, Grady, Stephens and Jefferson Counties for many years. At the time the complaint was filed, he was practicing law with an associate in Caddo County. He related that he began drinking excessively in 1987 when he was going through a difficult divorce, but did not recognize his drinking was a problem until 1990. He then began going to Alcoholics Anonymous meetings, after which he remained sober for approximately 18 months. Respondent testified to a history of alcoholism in his family. He stated he had twice been in treatment in Tucson, Arizona, leading to a period of sobriety of more than one year, and had twice been in treatment at Valley Hope.

¶ 10 Respondent related his pride in being an attorney and the importance of his membership in the Bar. He stated that he was embarrassed by his actions, disappointed in himself, sorry for what he had done, and sick and tired of the misery he has put his family and friends and the Bar Association through. Respondent testified that his drinking had caused great conflict in his family; that while they were now on good terms, after his arrest his son had been very angry and hostile toward him and did not speak to him for six months and had not allowed him to see his grandchildren for a year. Because of his success in recovery, respondent said he is now able to be with his grandchildren.

¶ 11 Respondent testified he believed he has gained an understanding of his problems through his treatment programs and counseling, and has changed his lifestyle and perspective on life so that he now recognizes that sobriety must be first in importance in his life, which is where he now places it. He stated he recognized that the practice of law had been stressful for him and that he takes his clients' problems personally; but by attending the meetings and receiving counseling, he has learned to get his thoughts off his clients and their stressful legal problems and concentrate on his sobriety. Exhibits were admitted which showed respondent is complying with all requirements of his treatment programs, his efforts seem quite sincere, he is making above average progress and is stable in his recovery. Respondent also testified that he is current in his MCLE requirements. Respondent stated he had tried to get admitted to Valley Hope following the January 17, 2005, DUI arrest, but the insurance company would not approve his admission prior to his arrest on February 4, 2005, and he was forced to wait for a later admission date.

¶ 12 Loraine Farabow, Assistant General Counsel for the Bar Association, testified that the Bar knew that diligent efforts were being made to get respondent into a treatment facility before it mailed its letter to him...