State v. Dunivan, Case Number: SCBD-6604

• Court: Supreme Court of Oklahoma
• Writing for the Court: GURICH, V.C.J.
• Citation: 2018 OK 101
• Parties: STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. JOHN DOUGLAS DUNIVAN, Respondent.
• Docket Number: Case Number: SCBD-6604
• Decision Date: 18 December 2018

2018 OK 101

STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
JOHN DOUGLAS DUNIVAN, Respondent.

Case Number: SCBD-6604

SUPREME COURT OF THE STATE OF OKLAHOMA

Decided: December 18, 2018

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
BAR DISCIPLINARY PROCEEDING

¶0 Respondent, attorney John Douglas Dunivan, entered an Alford plea to one misdemeanor count of violating a victim protective order in Blaine County District Court. Pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings, Complainant, the Oklahoma Bar Association, initiated a disciplinary case, and this Court entered an order of interim suspension on December 18, 2017. Dunivan sought and was provided a hearing before a trial panel of the Professional Responsibility Tribunal (PRT) on the limited issues of mitigation and imposition of appropriate discipline. The PRT recommended a one-year suspension, to be followed by another year of deferred suspension subject to various probationary requirements. Dunivan urges that public censure is instead the appropriate measure of discipline. We hold that the record supports suspension of Dunivan's license to practice law for a period of one year, to be imposed retroactively to the date on which Dunivan's interim suspension began, after which time Dunivan may be reinstated without probationary conditions.

INTERIM SUSPENSION PREVIOUSLY ORDERED;
RESPONDENT SUSPENDED FOR ONE YEAR, RETROACTIVE
TO THE DATE OF INTERIM SUSPENSION; COSTS IMPOSED

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant

-and-

Jack S. Dawson and Amy L. Alden, Miller Dollarhide, P.C., Oklahoma City, Oklahoma, for John Douglas Dunivan, Respondent

GURICH, V.C.J.

¶1 This matter is before the Court for imposition of final discipline under Rule 7, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011 ch. 1, app. 1-A. In this case, we are tasked with crafting suitable discipline for an attorney who--in the course of a contentious child-custody dispute with a former spouse--violated the conditions of a victim protective order by sending a flurry of harassing and inappropriate text messages. Although Dunivan did not physically harm or threaten his ex-wife (or act in a manner directly detrimental to the interests of any client), Dunivan's general course of conduct--both before and after entering his Alford plea¹ to the misdemeanor violation of the protective order--evinces a pattern of disregard for complying with judicial orders. An attorney must follow the rules, and Dunivan (who previously received a private reprimand from the Professional Responsibility Commission of the Oklahoma Bar Association in 2010) too frequently has not. Under the circumstances, a standalone verbal rebuke from this Court risks being too easily brushed aside. We suspend Dunivan from the practice of law for one year.

Facts and Procedural History

¶2 Dunivan was admitted to the Oklahoma Bar Association (OBA) in 2002. In recent years, he has maintained a general law practice in Perry, Oklahoma. Dunivan married his now-former wife, Ginger Swann, in 2008. In May of that year, Dunivan was involved in a verbal altercation with Swann's ex-husband during a child-custody exchange in Texas. Because of that encounter, the ex-husband filed a police report and--later on--a grievance against Dunivan with the OBA. Dunivan was not charged in the Texas incident. In March 2009, however, Dunivan was arrested in Bartlesville for driving under the influence. As a result of both the Texas-based grievance and Dunivan's self-reported DUI arrest, the OBA's Professional Responsibility Commission issued a private reprimand to Dunivan in August 2010. The Professional Responsibility Commission conditioned Dunivan's reprimand upon his successful completion of anger-management counseling and a substance-abuse assessment.

¶3 While married, Dunivan and Swann had one child together: S.D., a son, who is now nine years old. Shortly after S.D.'s birth, Dunivan and Swann divorced. It is abundantly clear from the record that their divorce--and, in particular, their subsequent battle for custody of S.D.--was extraordinarily bitter, protracted, and painful for both parties. As hostilities escalated between Dunivan and Swann, the Blaine County District Court issued a protective order on December 4, 2014 that prohibited Dunivan from contacting Swann, with the sole exception that "[t]he parties may send texts and/or emails to each other concerning visitation with their minor child." The protective order also required Dunivan to remain away from Swann's residence in Watonga.²

¶4 On March 25, 2016, following one of many disagreements over his visitation with S.D., Dunivan sent a series of 17 text messages to Swann. These text messages have been variously--and accurately--described as "churlish," "vexatious," "ugly," "vulgar and mean-spirited," "unkind and immature," "out of line," and "written in anger and haste." After receiving the texts, Swann filed a report with the Watonga Police Department, alleging a violation of the protective order. As noted by the investigating officer, Dunivan's text messages to Swann "were of a harassing nature and had very little to do with Mr. Dunivan's visits with their son." Thereafter, Dunivan was charged in Blaine County District Court (Case No. CM-2016-83) with a misdemeanor protective-order violation, in contravention of 22 O.S.2011 § 60.6. The feuding with Swann did not end there, and Dunivan was later charged with two more protective-order violations in Blaine County in June and December 2016--once for allegedly sending Swann another string of bizarrely harassing text messages in which he appeared to impersonate their young son (Blaine County District Court Case No. CM-2016-117), and then for allegedly approaching her off-limits Watonga residence in a vehicle with his then-girlfriend (Blaine County District Court Case No. CM-2016-210).

¶5 On December 4, 2017, Dunivan entered an Alford plea to misdemeanor violation of a protective order in Blaine County District Court Case No. CM-2016-83, stemming from his text-message harassment of Swann on March 25, 2016. As part of a negotiated plea agreement, the State dismissed the two remaining Blaine County cases charging Dunivan with the additional protective-order violations. Dunivan received a one-year deferred sentence, subject to the conditions--as relevant here--that he would obtain a psychiatric evaluation, refrain from committing any further protective-order violations, and "not possess, consume or purchase alcoholic beverages."

¶6 On the same day, Dunivan self-reported his misdemeanor Alford plea and deferred sentence to the OBA. In compliance with RGDP Rule 7.2, the OBA duly forwarded to this Court copies of the information, plea, and sentence. On December 18, 2017, we entered an order of immediate interim suspension--in accordance with RGDP Rule 7.3--in State ex rel. Oklahoma Bar Association v. Dunivan, 2017 OK 101 (for publication in OBJ only).

¶7 To put the matter bluntly, the OBA suspected the behavior leading to Dunivan's protective-order violation might be attributed to problems with alcohol, anger, or impulse control.³ At the OBA's request, Dunivan promptly submitted to evaluations by a psychologist (Dr. Terese Hall) and a substance-abuse specialist (Dr. Julio Rojas). In her psychological report of January 12, 2018, Dr. Hall concluded that Dunivan's "test results as a whole do not raise concern about alcohol abuse," but went on to suggest that he "honestly monitor his alcohol intake to ensure that drinking does not become problematic." In addressing the protective-order violation, Dr. Hall observed in a January 29, 2018 supplemental report that "[t]he text messages that Mr. Dunivan sent were in the context of [a] protracted and deeply frustrating custody battle. This does not excuse their inappropriate nature, but it helps to explain them." Additionally, Dr. Hall stated that she was "not aware of any impulsive or aggressive behavior on his part in other contexts, so I do not believe there is a pattern of behavior that would indicate deeper problems."

¶8 For his part, Dr. Rojas largely concurred in Dr. Hall's assessment. Although Dr. Rojas believed that Dunivan suffered from a moderate alcohol-use disorder in the past, he agreed that he is currently fit to practice law. Dr. Rojas was troubled, though, by Dunivan's admission that he had consumed alcohol about ten days prior to his evaluation--a clear violation of the terms of Dunivan's deferred sentence, which unequivocally prohibited him from possessing or consuming alcoholic beverages.⁴ Consequently, Dr. Rojas supplemented his evaluation with a list of further recommendations for Dunivan that included at least one year of alcohol-related counseling and therapy.

¶9 On June 5, 2018, the PRT conducted a hearing on the issues of mitigation and appropriate discipline. Three witnesses testified on Dunivan's behalf: two lawyers (including an assistant district attorney) who are familiar with his character and reputation within his community; and his church pastor. Dunivan's witnesses testified that he had gone through a remarkably wrenching divorce, during which time he was routinely denied visitation with his son by Swann. The witnesses further testified they do not believe he has a problem with alcohol. In sum, Dunivan's witnesses persuasively characterized him as a decent and capable man whose legal abilities are valued--and needed--in his rural community.

¶10 Dunivan testified next in his own behalf. As described by the PRT, he "presented compelling testimony that he is remorseful, shameful [sic], embarrassed and sorry that he has brought disrepute on the legal profession and apologizes for his past conduct." He explained to the PRT that his suspension from the practice of law has been "life-altering"...