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

• Decision Date: 24 May 1994
• Docket Number: No. 911,No. 3582,911,3582
• Citation: 880 P.2d 349,1994 OK 57
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jean M. CALDWELL, Respondent. OBADSCBD
• Court: Oklahoma Supreme Court

Page 349

880 P.2d 349

1994 OK 57

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jean M. CALDWELL, Respondent.

OBAD No. 911.

SCBD No. 3582.

Supreme Court of Oklahoma.

May 24, 1994.

Bar Disciplinary Proceeding.

Facts and conclusions of law stand submitted by stipulation of the parties. The Professional Responsibility Tribunal [PRT] made some findings of fact and conclusions of law with a recommendation for discipline. Upon this court's de novo consideration of the record embodying proceedings before the PRT, of the findings of fact and conclusions of law, and of its recommendation for discipline.

Respondent Is Ordered Disciplined By A Two-Year-And-One-Day Suspension And Imposition Of Costs.

Gloria Miller White, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Jean M. Caldwell, Tulsa, pro se.

OPALA, Justice.

In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record ¹ sufficient for a meaningful de novo consideration of the complaint's disposition? and (2) Is a two-year-and-one-day suspension with imposition of costs, to be effective from November 30, 1989 (the date on which respondent took associate-member status), an appropriate disciplinary sanction to be imposed for respondent's breach of professional discipline? We answer both questions in the affirmative.

The Oklahoma Bar Association [Bar] charged Jean M. Caldwell [respondent] with two counts of professional misconduct. Respondent denied most of the material allegations in the complaint. Nine months later, on November 30, 1989, she voluntarily changed her bar status from "active" to "associate." ² Before a hearing could be had, the Bar pressed for dismissal of its complaint on the ground that as an associate respondent was no longer able to practice law. A panel of the PRT recommended on September 11, 1990 that the complaint be dismissed. This court declined to terminate the case and remanded it to the PRT panel whence it came for adversary hearings upon the counts charging respondent with professional misconduct. Following a hearing, the PRT panel made findings of fact and conclusions of law together with a recommendation for discipline. ³ It ruled that respondent's conduct violated Rules DR 1-102(A)(1)(4)(5)(6), 7-101(A)(1)(3), 7-102(A)(1)(2)(3)(5) of the Oklahoma Code of Professional Responsibility, ⁴ and Rule 5.2 of

the Rules Governing Disciplinary Proceedings. ⁵

The Bar's Dismissal Quest

The Bar, whose earlier quest for dismissal of this complaint proved unsuccessful, once again attempted to press for dismissal of certain allegations during the adversary hearings that followed this court's reinstatement order. We reaffirm the panel's reluctance to act on the renewed Bar attempt to dismiss.

Once a disciplinary prosecution has been initiated, it can be terminated only by this court upon its de novo review of the proceedings. ⁶ The Bar counsel does not have the power of nolle prosequi--the common-law prerogative of an English prosecutor to dismiss a Crown's criminal charge. ⁷

Our de novo review must rest either on evidence adduced in an adversary proceeding or on that revealed by stipulated facts. While the Bar (or the parties by agreement) may request a dismissal of a count or of some allegation in the complaint, ⁸ it is powerless to withdraw a filed complaint either in whole or in part. The authority to terminate a disciplinary proceeding resides solely in the Supreme Court. ⁹

Professional Incapacity

The Bar's initial dismissal quest was premised upon respondent's change to an associate-member A lawyer can become an associate member of the Bar by filing a statement with the Executive Director explaining that because of an "illness, infirmity, or other disability" she/he is prevented from practising law. ¹¹ The respondent's voluntary status change cannot shield her from professional responsibility for misconduct charged in a then-pending complaint. ¹² Once a formal complaint has been brought, it is this court's constitutional duty to ensure that the goals of lawyer discipline are carried out. These goals--(1) preservation of public trust and confidence in the Bar by strict enforcement of the profession's integrity, (2) protection of the public and the courts and (3) deterrence of like behavior by both the disciplined lawyer and by other members of the Bar ¹³--would indeed be defeated if respondent were allowed to find a sanctuary from discipline for her past professional misconduct by shrouding herself in associate-member status.

status which bars her from active practice. ¹⁰

FACTS ADMITTED BY STIPULATION ¹⁴

COUNT I

Virginia Plummer retained respondent in June 1983 to represent her in a proceeding to modify child support, to commute unpaid child support to judgment and to secure a counsel-fee award for services in a contempt citation. Her former spouse, Phillip Plummer [Plummer], retained James Hayes [Hayes]. Hayes would testify that he and respondent agreed to pass until later the scheduled September 1, 1983 hearing. Respondent would relate that she has no recollection of the agreement. Respondent appeared at the September 1 hearing and was given a judgment of $2,061.25 for child support arrearage, dental and medical expenses, attorney's fee and costs. Hayes and his client did not appear. On September 6, 1983 Hayes obtained an order vacating the earlier decision, which he mailed to respondent.

On July 10, 1985 respondent filed a garnishment proceeding against Plummer to recover the amount of the September 1 judgment. Plummer's employer withheld $405.67 from his wages. After learning about the garnishment, Plummer went to respondent's office but was unable to find her there. He then had a discussion with her secretary who prepared for his signature a promissory note by which he agreed to pay $2,246.00 in monthly installments of $50.00 each in return for respondent's release of the garnishment process. Plummer signed the note and paid $50.00.

Apparently in response to a grievance, respondent represented to the General Counsel on September 30, 1986 that she did not "file

                any illegal garnishment" or fail to release "that proper garnishment."   In so doing she failed to disclose in her written response that she had, in fact, been informed of the September 1 ruling's vacation
                

COUNT II

Because she could not properly care for them, Mrs. R., an Enid resident, voluntarily placed on February 13, 1985 two of her three children with the Department of Human Services [DHS] in Garfield County. Respondent had represented a couple that adopted her third child. On March 4, 1985 Mrs. R. told respondent she wanted to place her other two children for adoption. Two days later, Lola Robinson [Robinson], who was working in respondent's office, notified DHS of Mrs. R's plans. Meanwhile Robinson spoke on several occasions with Mr. and Mrs. Chambers [Chambers], Mississippi residents, about adopting the two children. She told them that they could pick up the children in Tulsa on March 11, 1985 and have their custody until the adoption proceedings became final.

On March 8, 1985 Mrs. R., respondent and Robinson went to DHS offices in Garfield County. Mrs. R. told the officials she wanted to keep her children and that she would take them to Tulsa where a job and a place to live would be provided for her. They all appeared before a judge in Tulsa County on March 11. There, Mrs. R. executed a written consent for the Chambers to adopt the children. That evening the Chambers met with respondent at her office in Tulsa and paid her $1,240 for services in the adoption proceedings. The Chambers took custody of the children and returned with them to Mississippi. They did this on respondent's advice that (a) it was legally permissible to do so, (b) the natural father had no legal rights in the matter and (c) he was not entitled to any notice of the adoption. Respondent failed to disclose or to advise them that it was necessary to file a petition for adoption in the county where the Chambers resided.

On March 12, 1985 respondent filed on behalf of the Chambers a petition for adoption in Tulsa County. She gave no notice of the proceeding to the natural father. Sometime later the Garfield County DHS officials notified the natural father that adoption proceedings had been commenced. The father retained a lawyer who entered an appearance in the case. On March 25, 1985 Mrs. Chambers returned to Tulsa to sign an amended adoption petition which joined the father as a party. Because Mr. Chambers did not accompany her, respondent signed his name to the pleading. Respondent filed the verified amended petition on the same day, impliedly representing to the district court that the signatures to the petition, including that of Mr. Chambers, were genuine. On March 29, 1985 respondent filed a notice of hearing on the amended petition along with her quest for a determination that the children were eligible for adoption without the consent of the natural father. She mailed this notice to the natural father at "General Delivery" in Kilgore, Texas.

Although the adoption proceedings were dismissed on April 29, 1985, respondent refused to advise the Chambers that they must return the children. Their natural father had to secure an order from the District Court in Garfield County directing that the children be returned. He then was compelled to travel to Mississippi to regain the children's actual custody.

I

THE RECORD BEFORE THE COURT IS COMPLETE FOR A DE NOVO

CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings. ¹⁵ The court's review is conducted by a de novo consideration of the case before it. ¹⁶ Neither the stipulations of The court's review task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all pertinent issues. Our first...