State v. Bednar

• Decision Date: 02 April 2013
• Docket Number: SCBD No. 5927.
• Citation: 299 P.3d 488
• Parties: STATE of Oklahoma, ex rel, OKLAHOMA BAR ASSOCIATION, Complainant, v. Alexander L. BEDNAR, Respondent. State ex rel. Oklahoma Bar Association v. Bednar.
• Court: Oklahoma Supreme Court

299 P.3d 488

STATE of Oklahoma, ex rel, OKLAHOMA BAR ASSOCIATION, Complainant,

v.Alexander L. BEDNAR, Respondent.

State ex rel. Oklahoma Bar Association

v.Bednar.

SCBD No. 5927.

Supreme Court of Oklahoma.

April 2, 2013.

¶ 0 Complainant, Oklahoma Bar Association, filed letters and documentation with this Court under Rule 7.7 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. 1–A, based on Respondent's resignation from the United States District Court for the Western District of Oklahoma while disciplinary proceedings were pending and his suspension from the United States Tenth Circuit Court of Appeals for a minimum of one year.

RESPONDENT SUSPENDED FOR ONE YEAR AND ORDERED TO PAY COSTS WITHIN 90 DAYS

Loraine Farabow, Oklahoma Bar Association, Oklahoma City, OK, for the Complainant.

Thomas C. Riesen, Oklahoma City, OK, for the Respondent.

WINCHESTER, J.

¶ 1 On September 27, 2012, the Oklahoma Bar Association (OBA) filed a letter and documentation with the Supreme Court related to Respondent's resignation pending disciplinary proceedings in the United States District Court for the Western District of Oklahoma and his suspension from the United States Tenth Circuit Court of Appeals for a minimum of one year. Under Rule 7.7(a) of the RGDP, attorneys are obligated to notify the General Counsel within 20 days of a final order of discipline in another jurisdiction and failure to do so is, in itself, grounds for discipline.

Facts

¶ 2 On May 1, 2012, the Respondent sent a letter to Judge Heaton of the Western District, voluntarily resigning. His disciplinary matter had been set for hearing on April 20, 2012, but apparently he did not attend. This triggered disciplinary proceedings with the Tenth Circuit Court of Appeals. On June 1, 2012, the OBA notified the Respondent that they were also beginning an investigation.

¶ 3 On July 2, 2012, the Respondent replied to the OBA, but his correspondence attempted to justify specific incidents related to the discipline, rather than addressing the failure to respond. The following week, the Tenth Circuit issued its final order, suspending the Respondent for at least one year.

¶ 4 Following the OBA's filing with the Supreme Court, Respondent was given 10 days to show cause why he should not be disciplined. Under Rule 7.7(b) RGDP, the lawyer may submit a transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his claim that the finding was not supported by evidence. The lawyer may also submit a brief and or any evidence tending to mitigate the severity of discipline. Respondent apparently saw this as an opportunity to argue the charges leveled in the other jurisdiction where he chose not to defend his actions. He filed many copies of documents related to the federal cases involved with the disciplinary proceedings.

¶ 5 The Western District charges included allegations of witness intimidation, missing deadlines, and altering court documents. In December 2011, the Honorable Vicki Miles–LaGrange sanctioned Respondent $1,000 for discovery abuse: failing to appear at deposition hearings, which is a violation of Oklahoma Rules of Professional Conduct (ORPC) Rules 1.3 and 8.4(d), and Rule 1.3, RGDP¹. The following month, the Honorable Stephen Friot sent a complaint of professional misconduct regarding the Respondent to Judge Miles–LaGrange. The complaint included emails sent by the Respondent to witnesses in which he threatened to file lawsuits against them for fraud and breach of contract if they testified. These actions constitute violations of Rules 3.4(a), 3.4(f), and 8.4(d) OPRC, as well as Rule 1.3, RGDP². Also in January 2012, the Honorable Lee West sent Judge Miles–LaGrange copies of orders in three separate cases handled by Respondent. Judge West described all three as demonstrating a pattern of missing deadlines and seeking reconsideration that is typical in the Respondent's cases. These actions constitute violations of OPRC Rules 1.1, 1.3, 3.2³, 8.4(d), and Rule 1.3, RGDP. The Honorable Tim Leonard also sent a memo to Judge Miles–LaGrange regarding the Respondent. Judge Leonard had sanctioned Respondent $20,000 for altering a Final Joint Pretrial Report and putting opposing counsel's electronic signature on it without his consent. These actions violated OPRC Rules 3.3, 3.4, 8.4(c), 8.4(d), and Rule 1.3, RGDP⁴. These charges and Respondent'sresignation led to his one-year federal suspension.

¶ 6 In Respondent's Response and Request for Leniency, filed with this Court October 15, 2012, he offers a recent diagnosis of attention deficit/hyperactivity disorder (ADHD) as a mitigating factor for his actions. He refers to this condition as a “disability” and cites a prescription for medication and participation in Lawyers Helping Lawyers as steps he has taken to manage the condition. Those factors prompted this Court to order a PRT hearing to determine if the matter should be treated as a Rule 10 proceeding.

¶ 7 An evidentiary hearing was held on January 31, 2013, and the PRT filed their report with this Court on February 26, 2013. The PRT recommended suspension of a minimum of one year.

¶ 8 In the course of testimony, the presiding master raised this question: does the Respondent's condition have an impact on honesty or integrity? (Tr. 94) The witness, Dr. Mary Sweet–Darter, director of the University of Central Oklahoma Learning and Behavior Center, replied that it would depend upon whether honesty and integrity are considered neurochemical events. (Tr. 94)

¶ 9 Evidence presented indicates the Respondent frequently acts on impulse, without weighing the consequences of his actions, likely influenced by the ADHD. However, this condition does not alleviate Respondent of personal responsibility.

¶ 10 Mr. Bednar has chosen to be an attorney. This profession demands a high level of honesty and integrity, so much so that it is among the first commitments made when attorneys take their oath.⁵

¶ 11 Respondent's actions indicate a disturbing pattern of behavior with a key element being a lack of forthrightness. Respondent does not find himself in his situation from missing deadlines, but rather, because of the actions he chose to remedy missing those deadlines.

¶ 12 The basis for disciplinary action in the federal court stemmed from a pattern of repeated neglect, some resulting in dismissal of clients' cases, attempted intimidation and intimidation of witnesses, unlawful obstruction of another party's access to evidence, requesting a person to not voluntarily provide relevant evidence to a party, intentionally filing misleading documents with the court and a continuous pattern of disregard of local rules.

¶ 13 In his Response, Respondent admitted to substantially all the acts that gave rise to the disciplinary proceedings. He offered explanations, that he acted impulsively—a result of his ADHD. It does appear that he is taking steps to manage his symptoms. Hiring an “organized” assistant and implementing a system to timely manage cases is a laudable effort, but it does not address the overriding issue of Respondent's honesty.

¶ 14 Although Respondent testified he has experienced the symptoms of ADHD all of his life, he only sought help following his suspension in federal court. Furthermore, testimony revealed the Respondent does not have a typical doctor/patient relationship with the psychiatrist currently treating his condition. The psychiatrist has never billed Respondent for his services, does not maintain records of his treatment, and is not willing to prescribe additional medications to manage Respondent's condition. As illustrated by hearing testimony, Respondent continued to engage in questionable actions after being prescribed medication intended to reduce his impulsive behavior.

¶ 15 While it is possible that Respondent may suffer from an illness which makes it more difficult for him to manage himself, his affairs or the affairs of others, it does not remove from him the responsibility of acting with honesty and integrity.

Conclusions of Law

¶ 16 This matter was commenced under Rule 7.7 of the RGDP, disciplinary action in other jurisdictions, as basis for discipline. The certified copy of the adjudication serves as prima facie evidence that the lawyer committed the acts of misconduct. State ex rel. Oklahoma Bar Association v. Stewart, 2003 OK 13, ¶ 4, 71 P.3d 1, 2.

Discipline

¶ 17 In his Request for Leniency, Respondent suggested discipline of public censure, which might be appropriate if the only violation were failure to report federal discipline. In weighing the evidence, this Court must also consider the actions that precipitated the original discipline. These actions violated Rules 1.1, 1.3, 3.2, 3.3, 3.4(a)(f) and 8.4(c), (d) of the Oklahoma Rules of Professional Conduct (ORPC) and Rule 1.3 of the RGDP. Respondent's condition can be considered a mitigating factor regarding Rule 3.2. However, his violations of the other rules in themselves warrant a one-year suspension.

¶ 18 In State ex rel. Oklahoma Bar Association v. Hummel, 2004 OK 30, 89 P.3d 1105, an attorney was suspended for one year after misrepresenting facts to clients and the court, along with neglecting clients' cases. In State ex rel. Oklahoma Bar Association v. Askins, 1993 OK 78, 882 P.2d 1054, an attorney was suspended for two years for filing a document containing false statements with the court. In State ex rel. Oklahoma Bar Association v. Peveto, 1980 OK 182, 620 P.2d 392, this Court suspended an attorney for one year because he made false statements in court filings.

Costs

¶ 19 The Complainant has filed application for costs in this matter in the amount of $2,662.78. The motion is granted; Respondent will pay costs within 90 days of the date this opinion is filed.

¶ 20 In addition, Respondent is required to follow the procedures for suspended attorneys outlined in Rule 9.1.⁶ Within 20 days, the Respondent is required to notify all...