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

• Decision Date: 13 December 2005
• Docket Number: No. SCBD 5029.,SCBD 5029.
• Citation: 127 P.3d 600,2005 OK 91
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. David Mitchell GARRETT, Respondent.
• Court: Oklahoma Supreme Court

127 P.3d 600

2005 OK 91

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. David Mitchell GARRETT, Respondent.

No. SCBD 5029.

Supreme Court of Oklahoma.

December 13, 2005.

As Corrected December 13, 2005.

Original Proceeding for Attorney Discipline.

¶ 0 Respondent was arrested for two counts of felonious sexual battery against two women while intoxicated. The felony charges were reduced to misdemeanor battery to which Respondent pled guilty. After Respondent received in-patient treatment for alcohol abuse and addiction, the Complainant brought disciplinary proceedings against him under Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, for violations of Rule 8.4(a) and (b), Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, and Rule 1.3 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A. The Trial Panel found the allegations of the complaint constituted a violation of professional conduct, warranting imposition of discipline. The parties stipulated, and the Trial Panel recommended, discipline of a public censure, probation for one year subject to specific conditions and payment of costs of this proceeding. The recommendation of discipline is adopted.

PUBLICLY CENSURED; ONE-YEAR PROBATION WITH CONDITIONS; PAYMENT OF COSTS.

Loraine Dillinder Farabow, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for Complainant.

Gary a. Rife, Rife & Walters, Oklahoma City, for Respondent.

OPINION

WATT, Chief Justice.

¶ 1 The Complainant, Oklahoma Bar Association (the Bar), filed a complaint against Garrett, Respondent, a licensed attorney in Oklahoma, pursuant to Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A. The Bar alleged the sexual assault of two women (Counts I and II); his arrest for two counts of felonious sexual battery and later conviction of two counts of misdemeanor battery (Count III); and his alcohol abuse and addiction (Count IV).¹ The Bar alleged Garrett's misconduct violated Rule 8.4(a) and (b)², Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001 Ch. 1, App. 3-A, and Rule 1.3³ of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A, and warranted professional discipline. The parties stipulated to violations of these rules.⁴ The parties also stipulated as to the appropriate discipline to impose which includes a public censure, probation for one year subject to specific conditions,⁵ and the payment of costs of these proceedings. The Trial Panel Report notes these stipulations and recommends the same discipline.

CASE OF FIRST IMPRESSION

¶ 2 This Court has previously considered appropriate discipline for attorneys' sexual misconduct with their clients. See State ex rel. Oklahoma Bar Association v. Anderson, 2005 OK 9, 109 P.3d 326; State ex rel. Oklahoma Bar Association v. Sopher, 1993 OK 55, 852 P.2d 707. We have also disciplined attorneys whose addiction to alcohol or drugs has caused serious problems in the attorney-client relationship. See State ex rel. Oklahoma Bar Association v. Donnelly; 1992 OK 164, 848 P.2d 543; State ex rel Oklahoma Bar Association v. Arnett, 1991 OK 44, 815 P.2d 170. Today, for the first time, this Court considers appropriate discipline for an attorney whose alcohol addiction led to his arrest for felonious sexual battery and his convictions for misdemeanor battery of two women outside the attorney-client relationship.

JURISDICTION AND STANDARD OF REVIEW

¶ 3 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction. Anderson, 2005 OK 9, 109 P.3d 326; State ex rel. Oklahoma Bar Association v. Taylor, 2003 OK 56, 71 P.3d 18. We have a constitutional, nondelegable responsibility to decide whether misconduct has occurred and what discipline is appropriate. Anderson, 2005 OK 9, ¶ 15, 109 P.3d 326, 330. We exercise this responsibility, not for the purpose of punishing an attorney, but to assess his or her continued fitness to practice law, Taylor, 2003 OK 56, ¶ 22, 71 P.3d 18, 29; and to safeguard the interests of the public, the courts and the legal profession. Id.; State of Oklahoma, ex rel. Oklahoma Bar Association v. Wagener, 2005 OK 3, 107 P.3d 567; State ex rel. Oklahoma Bar Association v. Southern, 2000 OK 88, 15 P.3d 1.

¶ 4 We have a responsibility to ensure the record is sufficient for a thorough inquiry into essential facts and for crafting the appropriate discipline. State of Oklahoma ex rel. Oklahoma Bar Association v. Adams, 1995 OK 17, 895 P.2d 701. We find the record submitted in this proceeding is sufficient for our de novo review.

THE COMPLAINT

¶ 5 The first two counts of the Bar's complaint describe the accusations of sexual assault against Garrett by two women, J.L. and T.C.,⁶ on April 23, 2003, and May 23, 2003, respectively.⁷ Count III describes Garrett's arrest and his criminal prosecution and convictions. On June 6, 2003, Garrett was arrested at his law office. He was charged with two counts of Felonious Sexual Battery, in violation of 21 O.S. Supp.2002 § 1123(B). A preliminary hearing was held and Garrett was bound over for jury trial in both cases. The State filed a notice of intent to use evidence of other crimes in the form of testimony of other women who had previously made allegations of sexual battery against Garrett.

¶ 6 Garrett's two felony sexual battery charges were reduced to misdemeanor battery charges, to which Garrett pled guilty. He received one-year suspended sentences on each count to run concurrently, in addition to terms requiring Garrett to pay costs and to continue alcohol treatment while on probation. The jury trials were set for June 8, 2004.⁸

¶ 7 Count IV addresses Garrett's chronic alcoholism from which he had been suffering for a considerable period of time before these incidents arose. Garrett's written response to the complaint is quoted. It indicates he remembers drinking heavily on both occasions, but he did not remember the incidents with the two women which are the basis of the complaint. Count IV also recites that following his arrest, Garrett realized alcohol was a problem in his life. He contacted the Bar's Lawyers Helping Lawyers (LHL) program. On June 10, 2003, Garrett entered an inpatient treatment facility where he remained for 72 days until his discharge on August 20, 2003.⁹ After his discharge, he moved to Tulsa to practice law.

¶ 8 In its report, the Trial Panel made Findings of Fact which it concluded were established by clear and convincing evidence.¹⁰ Our review of the record is de novo in which we conduct a non-deferential, full-scale examination of all relevant facts; the recommendations of the trial panel are neither binding nor persuasive. Anderson, 2005 OK 9, ¶ 15, 109 P.3d 326, 330; State ex rel. Oklahoma Bar Association v. Groshon, 2003 OK 112, ¶ 5, 82 P.3d 99, 103. We consider all of the evidence without deference to the parties' stipulations to determine if allegations of misconduct are established by clear and convincing evidence. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21; Rule 6.12(c), RGDP, 5 O.S.2001, Ch.1, App. 1-A.¹¹

GARRETT'S PREVIOUS CONDUCT; VIOLATIONS OF RULE 8.4, ORPC, AND RULE 1.3, RGDP

¶ 9 Incidents of prior misconduct have been considered for determining appropriate discipline and whether a lawyer's conviction and underlying conduct reflect adversely on his ability to practice law. See Arnett, 815 P.2d at 171. "A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation." See Comment to Rule 8.4, ORPC, 5 O.S.2001, Ch. 1, App. 3-A.

¶ 10 Allegations by three other women of previous incidents of sexual misconduct are noted in the Bar's complaint. These incidents are alleged to have occurred between 1994 and 2003 but never became the subject of criminal charges or of Bar disciplinary proceedings. Moreover, we underscore that the discipline imposed in this proceeding does not include these prior instances.¹² However, under our de novo review, we note them because Garrett's alcohol addiction is also blamed for the prior sexual assault allegations.¹³ Further, Garrett testified the 1994 incident also ended in an out of court settlement in a civil case.

¶ 11 In addition to allegations of prior sexual batteries, Garrett admitted he had been charged with previous alcohol-related traffic violations.¹⁴ Nevertheless, he did not stop drinking until criminal charges were filed against him, placing him in jeopardy of losing his license to practice law.

¶ 12 Garrett testified he reached "bottom," as it is referred to in AA, and realized when criminal charges were filed that alcohol controlled his life. He testified he does not know why the prior incidents were not enough to persuade him to make changes in his life. Although he stated he did not previously think he was an alcoholic, he now admits he is powerless against alcohol. He testified he appreciates the two women who brought the charges against him because it gave him a chance "to live a new life." We must decide whether his arrests and convictions involving J.L. and T.C. are merely part of an ongoing pattern showing an "indifference to legal obligation," or whether his recent efforts to maintain sobriety show a sincere desire to take responsibility for his alcoholism, causing this pattern to cease.

¶ 13 Under the evidence presented, we find Garrett has finally taken steps to take responsibility for his prior behavior and intends to work to maintain his sobriety through his involvement with LHL and AA. This represents a departure from his previous behavior. We agree with the Bar's contention that Garrett's disregard for the persons of J.L. and T.C., his criminal conduct and criminal convictions are clear and convincing violations of ORPC Rule 8.4(a) and (b). These actions, in addition to Garrett's abuse of alcohol, also...