State v. Green

• Decision Date: 28 April 2020
• Docket Number: SCBD NO. 6798
• Citation: 465 P.3d 1197
• Parties: STATE of Oklahoma, EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Thomas GREEN, Respondent.
• Court: Oklahoma Supreme Court

465 P.3d 1197

STATE of Oklahoma, EX REL. OKLAHOMA BAR ASSOCIATION, Complainant,

v.John Thomas GREEN, Respondent.

SCBD NO. 6798

Supreme Court of Oklahoma.

FILED APRIL 28, 2020

As Corrected: April 30, 2020

Tracy Pierce Nester, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant

John Thomas Green, Attorney, Ponca City, Oklahoma, for Respondent, pro se

RULE 6

COLBERT, J.

¶1 This disciplinary proceeding against a lawyer poses two questions: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and its disposition? and (2) Is suspension for two years plus one day together with payment of costs an appropriate disciplinary sanction for Respondent's breach of acceptable professional behavior? We answer question one in the affirmative and question two in the negative.

¶2 Following a grievance filed by client Jaramie Green (Client – no relation to Respondent) on May 18, 2018, the Oklahoma Bar Association (Complainant or OBA) commenced an investigation of the complaint against John Thomas Green, a licensed lawyer (Respondent). On May 25, 2018, the OBA filed a formal complaint under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1-A.¹ The Complainant charged Respondent with one count for professional misconduct in violation of Rules 1.1,² 1.3,³ 1.4,⁴ and 8.4⁵ of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2001, ch. 1, app. 3-A. Complainant charged Respondent with an additional count two for misconduct in violation of Rules 8.1(b)⁶ and 8.4, ORPC, and Rule 1.3,⁷ RGDP, for failing to cooperate in the disciplinary proceedings. The Complainant urges that Respondent be disciplined by disbarment. Respondent did not answer the Complaint, nor any other pleadings in this case until he eventually filed Respondent's Answer to Complainant's Brief in Chief after the Trial Panel's hearing. He delivered his Answer to the wrong location (Oklahoma Bar Association) on October 9, 2019, and it was later forwarded to this Court.

¶3 A trial panel of the Professional Responsibility Tribunal (PRT) conducted a PRT Hearing on June 13, 2019, without Respondent's presence. Upon conclusion of the hearing, consideration of testimony (Respondent was not present nor were any witnesses on his behalf), and admitted exhibits, the PRT issued its report (PRT Report) on July 11, 2019. Because Respondent failed to answer the Complaint and because of OBA's Motion to Deem the Allegations Admitted had been previously granted, the PRT Report found clear and convincing evidence that Respondent violated Rules 1.1 (Competence), 1.3 (Diligence), and 1.4 (Communication) of the ORPC. The Tribunal also found clear and convincing evidence that Respondent violated Rule 8.4(a) (Misconduct), ORPC, as a result of his violation of Rule 1.3, RGDP. The PRT Report recommended suspension of Respondent's license to practice law for two years and one day in the hope that it would give Respondent time to seek personal support and professional assistance, as well as help from Lawyers Helping Lawyers.

¶4 Following the filing of the PRT Report on July 15, 2019, Complainant filed its Application to Assess Costs in the amount of $1,881.70 on July 15, 2019, and filed its Complainant's Brief In Chief to this Court on August 6, 2019. Respondent failed to file a response to the Brief within the specified time of 15 days following Complainant's Brief in Chief. On September 25, 2019, an extension was granted on this Court's own motion, whereby the Respondent was notified that if he did not file an answer by October 9, 2019, his case would be assigned for disposition without his brief. Respondent finally filed Respondent's Answer to Complainant's Brief In Chief at the OBA on October 9, 2019, and the OBA forwarded that document to this Court on October 28, 2019.

STANDARD OF REVIEW

¶5 The Oklahoma Supreme Court has exclusive original jurisdiction regarding OBA proceedings. In re Integration of State Bar of Okla., 1939 OK 378, ¶ 5, 185 Okla. 505, 95 P.2d 113, 114 ; Matter of Reinstatement of Hutson, 2019 OK 32, ¶22, 458 P.3d 1102. The Court's review is de novo and takes into consideration all relevant facts in determining whether discipline is merited and what measures, if any, should be imposed for the misconduct. State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 546. The Court implements its constitutionally invested, nondelegable power to regulate and control the practice of law and the legal practitioners. Tweedy v. Okla. Bar Ass'n, 1981 OK 12, ¶ 2, 624 P.2d 1049, 1052. Under a de novo examination, the Trial Panel's findings and its recommendations are not binding nor are they persuasive upon this Court. State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265. This Court has a duty to be the final arbiter for adjudication and must conduct a full-scale examination of all the relevant facts. State ex rel. Okla. Bar Ass'n v. Johnston, 1993 OK 91, ¶ 13-14, 863 P.2d 1136, 1142 ("In a de novo consideration, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, a full-scale exploration of all relevant facts is mandatory. The court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all material issues." (citations omitted)).

¶6 Before a decision to discipline an offending attorney is made, the misconduct presented must be demonstrated by clear and convincing evidence, as required by Rule 6.12(c), RGDP, 5 O.S. 2001, Ch.1, App. 1-A. To make this determination of evidence and to fully discharge the court of its duty, the trial panel must present a complete record of the proceedings. State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶ 9, 914 P.2d 644, 648. The Court must determine whether the presented record is sufficient for an independent determination of the relevant facts and to craft an appropriate discipline. State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630. The record in this case consists of the pleadings filed with this Court, the transcript of the PRT Hearing and exhibits admitted into the record at the PRT Hearing, the PRT Report of the trial panel filed on July 15, 2019, and the transcript of the deposition of Respondent taken on behalf of the OBA on December 20, 2018. The only so-called record or pleading submitted by Respondent is in the form of Respondent's Answer to Complainant's Brief In Chief, belatedly filed by Respondent in the wrong location (OBA Center), and eventually received by this Court on October 9, 2019. In Respondent's Answer, he set forth only a brief summary of his personal history and problems, asserting that the effect of a divorce, a necessary move, and lack of legal experience together caused him to fall into a depression although he provided no medical evidence of such a diagnosis. He disputed Complainant's arguments but offered no evidence to support those assertions, nor did he make any legal arguments or cite any legal authorities in support of his refutations in order to rebut Complainant's allegations and arguments as set out in Complainant's Brief In Chief. We are left with a record from Respondent devoid of rational legal arguments and filled only with Respondent's excuses. After examination of the complete record submitted on appeal, this Court determines that the record is sufficient for the Court's de novo consideration of Respondent's alleged misconduct.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

¶7 The PRT Report provides an extensive summary of the historic facts in this case gleaned from Respondent's Deposition on December 20, 2018. PRT Report at 2-5. The more salient facts are repeated here as is necessary for this discussion. The PRT Report is replete with Respondent's many failures to respond to requests for information and his lack of cooperation with Complainant's investigator, along with Respondent's failed promises to do better in the future. However, the record shows that these promises to improve and cooperate never materialized.

¶8 The Client relationship began in January of 2018, when Respondent was retained by Client at a gas station in Ponca City, Oklahoma, to provide legal services relating to a post-divorce custody matter pending in Creek County, Oklahoma. Client paid Respondent $150.00 on the spot and eventually paid Respondent a total of $1,140.00, although a fee agreement was never executed or produced. Client faced an upcoming hearing pending in his case on February 6, 2018, before Judge Mark A. Ihrig. The judge had ordered mediation to occur at Client's last court hearing. The mediation was to take place prior to his February 6, 2018, hearing.

¶9 Prior to the mediation hearing, Client notified Respondent that he was unable to complete mediation by this deadline for financial reasons. On the morning of February 6, 2018, Respondent contacted the trial judge's office, speaking with the bailiff, to let the judge know that mediation had not yet occurred and to attempt to seek a continuance. Respondent then incorrectly assumed that a continuance had been granted. Complainant's investigator, Mr. Thames, testified in the trial panel hearing that according a conversation he had with Ms. Eastman, Respondent's opposing attorney in the case, Respondent contacted her regarding a continuance and she was not adverse to a continuance. However, she told Respondent that in that district and with that judge, he does not allow agreed continuances. Ms. Eastman told Respondent that it would have to be approved by the judge in advance and in writing. Mr. Thames also testified that he spoke with the judge's bailiff who had taken a call from Respondent. The bailiff said he told Respondent that they could not just grant it because it would have to be run by the...