State v. Wagner

Decision Date16 January 2007
Docket NumberSCBD No. 4897.
Citation2007 OK 3,152 P.3d 212
PartiesSTATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Randy L. WAGNER, Respondent.
CourtOklahoma Supreme Court
Original Proceeding for Attorney Discipline.

¶ 0 The Oklahoma Bar Association brought a disciplinary proceeding against attorney Randy L. Wagner pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A. The OBA alleged Wagner's misconduct violated the Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, app. 3-A, and are cause for professional discipline as provided in the RGDP. The trial panel of the Professional Responsibility Tribunal found the OBA failed to show by clear and convincing evidence that Respondent's conduct required imposing discipline and recommended dismissal of the complaint.

COMPLAINT IS DISMISSED; APPLICATION FOR COSTS IS DENIED.

Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

David Henneke, Enid, OK, for Respondent.

OPINION

WATT, Justice.

¶ 1 The Oklahoma Bar Association (OBA) filed a complaint on April 13, 2004, against Randy L. Wagner, a licensed attorney in Oklahoma, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2001, Ch. 1, App. 1-A. The OBA alleged Wagner's misconduct violated the Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, app. 3-A, and are cause for professional discipline as provided in the RGDP.

¶ 2 This disciplinary proceeding arises from a grievance filed against Wagner by then Assistant City Attorney for the City of Enid, Jennifer Gideon, his opposing counsel in a case filed in the Workers' Compensation Court (WCC). Wagner represented the claimant, a former employee of the City of Enid. The complaint alleges Wagner advised his medical expert, Dr. M., just prior to the expert's deposition, that the claimant had worked for another employer, Gleeson Construction, following his employment with the City of Enid. He was injured while at Gleeson and filed a separate workers' compensation claim. This subsequent employment coincided with the time in which the claimant was allegedly temporarily totally disabled (TTD) from his City of Enid injury. It was alleged in the complaint that Wagner told Dr. M. that he did not know if Gideon knew about the Gleeson employment or the claim "and also that he didn't want Gideon to know about the subsequent work and injury." The Gleeson Construction employment was not mentioned at the deposition.

¶ 3 The complaint, containing one count, alleges violations of Rules 3.3,1 3.4,2 and Rule 8.4(c), (d)3 of the Oklahoma Rules of Professional Conduct (ORPC). Following a hearing before the trial panel of the Professional Responsibility Tribunal (PRT), the PRT found the OBA had failed to sustain its burden with clear and convincing evidence to show Wagner committed professional misconduct which warranted discipline.4 The PRT recommended to this Court that the OBA's complaint against Wagner be dismissed.

¶ 4 The OBA contends the Trial Panel's recommendation for dismissal does not adequately address Wagner's misconduct and fails to protect the public and courts from similar misconduct in the future. It contends that while its allegations regarding Wagner's alleged fraud and misrepresentation may have been answered by the evidence, Wagner should be disciplined for his failure to amend the discovery responses fully in the workers' compensation case, upon realizing they were incorrect. The OBA recommends, at a minimum, the imposition of a public censure.

JURISDICTION AND STANDARD OF REVIEW

¶ 5 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive jurisdiction. See State of Oklahoma, ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600; State of Oklahoma 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. Garrett, 2005 OK 91, ¶ 3, 127 P.3d 600, 602. 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. Garrett, 2005 OK 91, ¶3, 127 P.3d 600, 602, State of Oklahoma, ex rel. Oklahoma Bar Association v. Wagener, 2005 OK 3, 107 P.3d 567.

¶ 6 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. Garrett, 2005 OK 91, ¶ 8, 127 P.3d 600, 603-604; State ex rel., Oklahoma Bar Association v. Groshon, 2003 OK 112, ¶ 5, 82 P.3d 99, 103. We consider all of the evidence to determine if allegations of misconduct are established by clear and convincing evidence. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21; RGDP Rule 6.12(c), 5 O.S.2001, Ch. 1, App. 1-A.5

¶ 7 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 proceeding6 is sufficient for our de novo review.

FACTS

¶ 8 Wagner initiated two workers' compensation cases for Claimant. The employer in the first case was the City of Enid (Enid case). The employer in the second case was Gleeson Construction. The WCC paperwork shows the injuries occurred approximately five weeks apart. After the Enid case was filed, the City hired an investigator. Videos were obtained by the investigator showing Claimant mowing the lawn for several hours at a time, although he claimed to be temporarily totally disabled (TTD) at the time. In the Enid case, he alleged he suffered injury to his back, head and neck, and that he sustained a "sprain and strain." In the Gleeson case, he alleged he injured his head and nose in the form of a "concussion/sprain strain." The investigator also obtained information about other pending claims filed by Claimant.

¶ 9 In support of the Enid claim, Wagner obtained a medical report from Dr. M., who examined Claimant. Dr. M. opined Claimant was TTD from the date of the injury on February 6, 2003. The medical report did not indicate any subsequent employment had occurred after the injury in the Enid case. However, Dr. M. admitted he did not ask if there had been any subsequent employment, which he admitted was an error on his part.

¶ 10 Gideon testified that when the City of Enid learned about Claimant's ability to mow yards during his alleged TTD period, it contacted the Workers' Compensation Fraud Unit at the Oklahoma Attorney General's Office (AG's office). The AG's office suggested taking Dr. M.'s deposition. Just before the deposition began, Wagner asked to speak privately to Dr. M. She testified they went into the doctor's office, and Gideon remained in the waiting area. Gideon testified she overheard their conversation. She stated Wagner told Dr. M. that he did not know if Gideon knew about the Gleeson employment and that he did not want her to know about it. She said he told Dr. M. that his medical report was wrong as to the TTD period because Claimant worked elsewhere after his injury in the Enid case. She also stated Wagner told Dr. M. he couldn't help him with answering questions at the deposition because he had not previously done a deposition with Gideon.

¶ 11 At the deposition, Gideon asked Dr. M. if there was anything that had subsequently occurred to change his opinion about his report. He answered in the negative. After the deposition, Gideon told them she had overheard their conversation, expressed her disgust for the way they had proceeded during the deposition and warned them that she was going to make a report to the AG's fraud unit about them.

¶ 12 When asked at the PRT hearing about the reasons for his answers at the deposition, Dr. M. responded that he had answered the questions based on the information contained in his report which reflected the history gathered from Claimant. Anything learned subsequent to his examination was not in his report. He testified that she only asked questions about his report, and anything he learned subsequently was irrelevant.

¶ 13 Claimant's Enid injury occurred on February 6, 2003, when he was in an accident as a passenger in a City of Enid garbage truck. The Form 3, which initiates a WCC case, indicated he injured his back, head and neck, caused by a "sprain and strain." In his Form 9, motion to set for trial, Claimant's TTD period was stated as "2-6-03 to indefinite."7 The City of Enid fired Claimant because he was not wearing his seatbelt. Claimant's Gleeson injury occurred on March 8, 2003. The Form 3 in that case indicated that a board hit his nose, injuring his head and nose, causing a "concussion/sprain strain."

¶ 14 City of Enid served interrogatories on Claimant through Wagner, who instructed Claimant to provide answers and return them to his secretary to prepare. Wagner testified his secretary typed the answers verbatim from the claimant's answers. Wagner does not recall going over those answers before they were mailed to Gideon. The answers to at least two interrogatories have created a misunderstanding in this case which has caused the appearance of deceit by Wagner. The interrogatories, #26 and #27, are stated as follows:

26. Identify all workers' compensation claims which you have filed at any time for any reason; state the date on which each such claim was filed, the reason it was filed, and the exact nature of the injury for which the claim was made; identify your employer at the time of such injury; and identify all docket numbers or other claim identification numbers related to such claims.

27. List by case name, court and docket...

To continue reading

Request your trial
1 cases
  • State ex rel. Oklahoma Bar Ass'n v. Wilson
    • United States
    • Oklahoma Supreme Court
    • 29 Abril 2008
    ...11. The record presented by the Bar in this matter is sufficient to permit this Court's thorough inquiry. See State ex rel. Okla. Bar Ass'n v. Wagner, 2007 OK 3, ¶ 7, 152 P.3d 212, 12. Respondent has already paid costs of $909.91 as requested by the Bar and ordered by the PRT. Rule 6.16, RG......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT