State Of Okla. v. Murdock, Case Number: SCBD-5542

• Decision Date: 06 April 2010
• Docket Number: Case Number: SCBD-5542
• Citation: 2010 OK 32
• Parties: STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. WALTER D. MURDOCK, Respondent.
• Court: Oklahoma Supreme Court

2010 OK 32

STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v. WALTER D. MURDOCK, Respondent.

Case Number: SCBD-5542

Supreme Court of Oklahoma

Decided: 04/06/2010

Murray E. Abowitz, Special Prosecutor, Oklahoma Bar Association, Oklahoma City, Oklahoma, for the Complainant

Charles F. Alden, III, Alden Leonard & Dabney, Oklahoma City, Oklahoma, for the Respondent.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

BAR DISCIPLINARY PROCEEDING

0 A disciplinary proceeding instituted pursuant to Rule 6, Rules Governing Disciplinary Proceedings, was brought against former general counsel for the Oklahoma Bar Association who entered an Alford plea to a misdemeanor charge of outraging public decency and was sentenced to one year probation, 50 hours of community service, victim restitution and counseling. The complaint alleged that the Respondent violated Rule 1.3, Rules Governing Disciplinary Proceedings. After a hearing before a trial panel of the Professional Responsibility Tribunal, the panel recommended the discipline of private reprimand. The special prosecutor for the Complainant sought the discipline of public reprimand. We find that the Respondent violated Rule 1.3 and that a public reprimand is the appropriate discipline to be imposed.

THE RESPONDENT STANDS PUBLICLY CENSURED

AND IS ORDERED TO PAY THE COSTS OF THIS PROCEEDING.

HARGRAVE, J.

1 On June 24, 2009, the Oklahoma Bar Association (Bar) filed a complaint pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP) against Walter D. Murdock alleging violation of Rule 1.3 RGDP, 5 O.S. 2001, Ch. 1, App. 1-A.¹ The complaint states that on June 28, 2008, Walter D. Murdock was involved in a situation which resulted in his ultimately entering an Alford plea to the misdemeanor charge of Outraging Public Decency, in violation of 21 O.S. 22.² No additional facts were set forth in the complaint. At the hearing before the Trial Panel of the Professional Responsibility Tribunal, a certified copy of the criminal case filed in CF-2008-4350, State of Oklahoma v. Walter D. Murdock, was entered into evidence by the Complainant.³

2 Also entered into evidence as Complainant's exhibit 15 is an unsigned photocopy of the stipulations of the parties. The stipulations relevant to our inquiry are as follows: At the time of the matters in question, Walter D. Murdock was the General Counsel of the Oklahoma Bar Association. On June 28, 2008, Mr. Murdock was involved in a situation which resulted in him being charged with two counts of Sexual Battery in violation of 21 O.S. 1123(D). The charges resulted in the filing of State of Oklahoma v. Walter D. Murdock, Case No. CF 2008-4350. At the request of the State of Oklahoma, one count of Sexual Battery was dismissed and Mr. Murdock entered an Alford plea on the other count, which was reduced to the misdemeanor of Outraging Public Decency, in violation of 21 O.S. 22.⁴ Mr. Murdock received a one-year suspended sentence and 50 hours of community service to be performed before October 8, 2009. Prior to this complaint, Mr. Murdock has never been the subject of any disciplinary proceedings before this Court. Complainant's Exhibit 1-13 are true and correct copies of the Oklahoma District Court files in Case No. CF 2008-4350. The Respondent admitted his Alford plea and conviction from the outset of this proceeding. Neither the allegations of the complaint nor the circumstances relating to the underlying Alford plea involved any attorney/client relationship or the funds and/or property of any client. Respondent has been forthright and cooperative with the Special Prosecutor in the investigation of this matter. Respondent has successfully completed the probation imposed by the District Court of Oklahoma County and he has met all financial and community service requirements imposed as a part thereof.

3 A hearing was held on November 9, 2009 before a three-person trial panel of the Professional Responsibility Tribunal. At the hearing, the special prosecutor for the Bar placed Mr. Murdock on the stand in order to testify as to the matters that are set out in the stipulations. The Respondent was the only witness called by the Complainant. Respondent's witnesses included a former federal judge, the director of the outreach ministry mentoring program where the Respondent volunteered, three members of the Oklahoma Bar Association and the Respondent's former assistant at the Oklahoma Bar Association. Each of the witnesses had known the Respondent personally for many years and each expressed the view that he was honest, conscientious, deeply humiliated and remorseful for what had occurred.

4 The Report of the Trial Panel filed with this Court found that on June 28, 2008, Walter D. Murdock was involved in a situation which resulted in him ultimately entering, on October 9, 2008, an Alford plea to the misdemeanor of Outraging Public Decency, in violation of 21 O.S. 22. The Trial Panel found that the actions of the Respondent violated Rule 1.3 of the RGDP. No additional facts were set out. The Trial Panel found that Respondents's actions did not involve a client or an individual with whom the Respondent had any professional relationship.

5 The Trial Panel found that the Respondent admits the improper acts and accepts full responsibility for his actions, has been individually and professionally humiliated by his actions and shows genuine remorse for those actions. They found that the Respondent has, since the incident, entered an Alford plea to the misdemeanor charge, satisfied all probationary conditions associated with his plea, sought professional medical help, sought and participated in addiction treatment and counseling and assisted in the treatment of others with addictions. They found that the Respondent, in accordance with the probationary requirements of the State, completed more than the required 50 hours of community service, paid all costs, restitution and has completed a one-year suspended sentence supervised by the Office of the District Attorney of Oklahoma County. The Trial Panel found that the Respondent is highly competent to practice law and that he is a man of character, trustworthiness and professionalism and that the Respondent has had no previous disciplinary actions. The Trial Panel unanimously recommended that the Respondent should receive the discipline of private reprimand from this Court. The Bar argues that the appropriate discipline is a public reprimand.

6 The recommendations of the Trial Panel are not binding on this Court. State ex rel. Oklahoma Bar Ass'n v. Anderson, 2005 OK 9, 109 P.3d 326, 330. Our review of the record is de novo in which we conduct a non-deferential, full-scale examination of all relevant facts. Id. We consider all of the evidence, without deference to the parties' stipulations, in order to determine if allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Ass'n v. Taylor, 2003 OK 56 2, 71 P.3d 18, 21. In this case, the Respondent has admitted the inappropriate conduct.⁵ The Respondent has also admitted that he violated Rule 1.3, RGDP.⁶ This Court likewise finds the Respondent's conduct to be a violation of Rule 1.3, RGDP. It remains only then for this Court to determine the appropriate discipline.

7 We previously have considered the proper discipline for lawyers accused of sexually inappropriate conduct with clients and with non-clients. In State ex rel. Oklahoma Bar Ass'n v. Sopher, 1993 OK 55, 852 P.2d 707, we followed the recommendation of the Professional Responsibility Tribunal and imposed the discipline of public reprimand based upon stipulated facts. The parties had stipulated to recommended discipline of public reprimand. In that case, a woman formerly employed as a secretary for Sopher came to see him to discuss two legal matters and gave him a retainer. He looked down her blouse and then called her mother into his office and did the same thing to her. Sopher stated that he believed his conduct would not be offensive due to his previous acquaintance with the mother and daughter. In condemning such conduct we stated:

"Taking advantage of the attorney-client relationship by making sexual advances accompanied by offensive touching is professional misconduct and will result in disciplinary action against the attorney when the matter is brought to the attention of this Court. Clients are in a vulnerable position. Exploiting the client for gratification of the attorney will not be tolerated by this Court... "

8 The attorney/client relationship was again involved in State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Copeland, 1994 OK 21, 870 P.2d 776. There, upon stipulations of fact and law, the Trial Panel recommended the discipline of private reprimand. On de novo review we declined to adopt the recommended discipline and instead imposed the discipline of public reprimand. There, the client was seeking to bring a sexual harassment suit against her employer. The Respondent stipulated that he purposefully touched the client's breast, but said that he asked her if that was the kind of conduct displayed by her coworkers. It was also stipulated that if the client testified, she would state that after she was touched the Respondent related that sexual favors had been performed for him by another female client. We concluded that it was agreed that the touching took place, but that there was a dispute as to what the Respondent and the client talked about afterwards. We held that the evidence as stipulated was clear and convincing that the Respondent's conduct was unprofessional and that a public rather than private reprimand was the proper discipline upon those facts.⁷

9 The attorney/client relationship was not involved in State ex rel. Oklahoma Bar Ass'n v. Foster, 2000 OK 4, 995 P.2d 1138. In that case, the Respondent pled nolo...