State v. Wilcox

• Decision Date: 14 January 2014
• Docket Number: 6009.,SCBD Nos. 5775
• Parties: STATE of Oklahoma EX REL. OKLAHOMA BAR ASSOCIATION, Complainant, v. Tom J. WILCOX, Respondent.
• Court: Oklahoma Supreme Court

318 P.3d 1114

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

v.Tom J. WILCOX, Respondent.

SCBD Nos. 5775, 6009.

Supreme Court of Oklahoma.

Jan. 14, 2014.

Original Proceedings for Discipline.

¶ 0 This opinion resolves pending Rule 6 and Rule 7 proceedings in which Thomas Joseph Wilcox is the Respondent. The Rule 6 proceeding arose out of Respondent's representation of a client during a workers' compensation case. The Rule 7 proceeding arose when Respondent was convicted of the misdemeanor crime of stalking, in violation of 21 O.S. 1173(A). After a de novo examination of the record, we order the Respondent be disbarred, and that his name be stricken from the roll of attorneys, effective from June 30, 2011, the date of his interim suspension.

RESPONDENT DISBARRED AND HIS NAME IS STRICKEN FROM THE ROLL OF ATTORNEYS, THE DISBARMENT TO BE EFFECTIVE FROM THE DATE RESPONDENT WAS SUSPENDED BY THIS COURT'S JUNE 30, 2011 ORDER; COSTS IMPOSED.

Gina L. Hendryx, General Counsel, and Stephen L. Sullins, Oklahoma Bar Association,Oklahoma City, Oklahoma, for Complainant.

Thomas Joseph Wilcox, Clinton, Oklahoma, pro se.

Lou Keel, Oklahoma City, Oklahoma, for Respondent.

COMBS, J.

¶ 1 Thomas Joseph Wilcox (hereinafter, Wilcox), OBA No. 10153, was admitted to practice law in the State of Oklahoma on April 22, 1983. Wilcox is currently suspended re: SCBD 5775 pursuant to Rule 7.3 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. Supp.2007 Ch. 1, App. 1–A by order of this Court in State of Oklahoma Bar Ass'n v. Wilcox, 2011 OK 70, 261 P.3d 605. There are two pending matters concerning Wilcox which need to be resolved. The first, SCBD 6009, concerns a complaint brought by the Oklahoma Bar Association pursuant to Rule 6 of the RGDP asserting the Wilcox violated provisions of the Oklahoma Rules of Professional Conduct (ORPC) during the course of his representation of a particular client during a workers' compensation matter. The second, SCBD 5775, was commenced pursuant to Rule 7 of the RGDP and concerns Wilcox's criminal conviction for the misdemeanor crime of stalking, in violation of 21 O.S. 1173(A). These matters were previously joined for the purpose of holding a hearing before a trial panel of the Professional Responsibility Tribunal (PRT), and in the interest of judicial economy are now resolved by a single opinion of the Court.

JURISDICTION AND STANDARD OF REVIEW

¶ 2 In Oklahoma, the regulation of licensure, ethics, and discipline of legal practitioners is a non-delegable, constitutional responsibility of this Court. State ex rel. Oklahoma Bar Ass'n v. McArthur, 2013 OK 73, ¶ 4, 318 P.3d 1095, 2013 WL 5316297;State ex rel. Oklahoma Bar Ass'n v. Albert, 2007 OK 31, ¶ 11, 163 P.3d 527. In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction. State ex rel. Oklahoma Bar Ass'n v. Garrett, 2005 OK 91, ¶ 3, 127 P.3d 600;State ex rel. Oklahoma Bar Ass'n v. Taylor, 2003 OK 56, ¶ 21, 71 P.3d 18. This Court conducts a de novo review of the record in order to determine if misconduct has occurred and what discipline is appropriate. McArthur, 2013 OK 73, ¶ 4, 318 P.3d 1095;Garrett, 2005 OK 91, ¶ 3, 127 P.3d 600. Before this Court may impose discipline upon an attorney, the charges must be established by clear and convincing evidence. State ex rel. Oklahoma Bar Ass'n v. Miller, 2013 OK 49, ¶ 10, 309 P.3d 108;State ex rel. Oklahoma Bar Ass'n v. Wolfe, 1997 OK 47, ¶ 11, 937 P.2d 988. To make such a determination, this Court must be presented with a record sufficient to permit an independent, on-the-record review for the crafting of appropriate discipline. State ex rel. Oklahoma Bar Ass'n v. McCoy, 2010 OK 67, ¶ 6, 240 P.3d 675;State ex rel. Oklahoma Bar Ass'n v. Schraeder, 2002 OK 51, ¶ 6, 51 P.3d 570. It is the view of this Court that the record before us is sufficient to make such a determination.

I.PRIOR DISCIPLINARY HISTORY

¶ 3 This is not the first time that Wilcox has been the subject of disciplinary proceedings before this Court for violations of the ORPC, and a preliminary examination of his disciplinary history is necessary at this juncture because some of the underlying facts are directly related to the matters currently before this Court. Wilcox was first subjected to discipline by this Court in State v. Wilcox (hereinafter Wilcox I ), 1997 OK 87, 942 P.2d 205. The genesis of the proceeding occurred when a clinic in Oklahoma complained to the OBA after it had received six checks drawn on Wilcox's trust account which were returned for insufficient funds. Wilcox I, 1997 OK 87, ¶ 3, 942 P.2d 205. In its complaint, the OBA alleged that Wilcox violated rules 1.15 and 8.4 of the ORPC, 5 O.S.1991, Ch. 1, App. 3A, and Rules 1.4 and 5.2 of the RGDP, 5 O.S.1991, Ch. 1, App. 1–A. Wilcox I, 1997 OK 87, ¶ 1, 942 P.2d 205.

¶ 4 This Court excluded some evidence after making a determination that the PRT improperly coerced Wilcox's testimony, after he had asserted the protection of Rule 6.11(d) of the RGDP. Wilcox I, 1997 OK 87, ¶ 20, 942 P.2d 205. After considering the remaining evidence, this Court determined that Wilcox had either commingled trust account funds or mishandled his clients' funds. The Court also determined that an endorsement on a settlement check was unauthorized. As a result, the Court determined clear and convincing evidence showed that Wilcox violated Rules 1.15 and 8.4 of the ORPC and Rule 1.4 of the RGDP. Wilcox I, 1997 OK 87, ¶ 26, 942 P.2d 205. This Court suspended Wilcox from the practice of law for one year, and imposed costs. Wilcox I, 1997 OK 87, ¶ 29, 942 P.2d 205.

¶ 5 Wilcox was subjected to discipline a second time by this Court in State ex rel. Oklahoma Bar Ass'n v. Wilcox (hereinafter Wilcox II ), 2009 OK 81, 227 P.3d 642. The OBA initiated proceedings under Rule 6 of the ORPC, alleging twelve different counts of misconduct and recommending a private reprimand. Wilcox II, 2009 OK 81, ¶ 1, 227 P.3d 642. The Professional Responsibility Tribunal found generally that Wilcox violated the ORPC and recommended a public reprimand and one-year probation. Wilcox II, 2009 OK 81, ¶ 1, 227 P.3d 642. After de novo review, this Court determined that Wilcox had violated Rules 1.15(b), 1.16(d), and 8.2(a) of the 2001 ORPC and Rule 5.2 of the 2001 RGDP. Wilcox II, 2009 OK 81, ¶ 70, 227 P.3d 642. This Court ordered a public reprimand, but declined to impose costs on Wilcox for multiple reasons, including unjustified delay on the part of the OBA and failure on its part to prove by clear and convincing evidence the majority of the charges it levied against Wilcox. Wilcox II, 2009 OK 81, ¶¶ 69–70, 227 P.3d 642.

¶ 6 One of the violations this Court disciplined Wilcox for in Wilcox II is particularly relevant to Wilcox's criminal conviction for stalking that is the subject of State ex rel. Oklahoma Bar Ass'n v. Wilcox, SCBD 5775, the current Rule 7 proceeding involving Wilcox that is now before this Court and discussed infra. In Wilcox II, this Court determined that Wilcox violated Rule 8.2(a) of the ORPC, which prohibits a lawyer from making a false statement about a judicial candidate with knowledge or with reckless disregard of the statement's truth. Wilcox II, 2009 OK 81, ¶ 59, 227 P.3d 642. In a letter opposing a candidate for Associate District Judge of Dewey County, Wilcox called into question the candidate's ethics because the candidate filed a campaign form after the deadline.¹Wilcox II, 2009 OK 81, ¶ 58, 227 P.3d 642. Wilcox also asserted the candidate had terminal cancer, and while it was true that the candidate had cancer, it was not true that the cancer was terminal. Wilcox II, 2009 OK 81, ¶ 58, 227 P.3d 642. Wilcox sent out this letter to voters less than one week before the election. Wilcox II, 2009 OK 81, ¶ 58, 227 P.3d 642. The judicial candidate in question was Rick Bozarth, then (and currently) the husband of Taunia Bozarth, the victim of Wilcox's stalking conviction discussed infra.

¶ 7 An order of suspension was also issued for Wilcox by this Court on June 20, 2013, due to Wilcox's failure to pay bar dues for the 2013 calendar year. Matter of Suspension of Members of the Oklahoma Bar Association for Nonpayment of 2013Dues, 2013 OK 46.

II.STATE OF OKLAHOMA EX REL. OKLAHOMA BAR ASSOCIATION v. THOMAS J. WILCOX, SCBD 6009—RULE 6

¶ 8 On May 6, 2013, The OBA filed a Complaint against Wilcox pursuant to Rule 6 of the ORPC, 5 O.S. Supp.2008, Ch. 1, App. 3–A. The OBA alleged that in the course of representing a particular client, Darlene Faye Love (hereinafter, Love), Wilcox committed acts constituting professional misconduct in violation of the ORPC, 5 O.S.2001, Ch. 1, App. 3–A; the ORPC, 5 O.S. Supp.2008, Ch. 1, App. 3–A; and the RGDP, 5 O.S.2001, Ch. 1, App. 1–A. Specifically, the OBA asserts Wilcox violated Rules 1.1, 1.3, 1.8(e), 1.15, 3.3(a)(3), and 8.4(c) of the ORPC and Rule 1.3 of the RGDP. The OBA also sought enhancement of discipline in its complaint, based upon prior disciplinary actions taken against Wilcox, discussed briefly supra.

¶ 9 On May 29, 2013, this Court granted the OBA's motion for joinder for the limited purpose of holding the hearing before the PRT, in the interest of judicial economy. The hearing before the PRT occurred on August 29, 2013, and September 3, 2013. The Trial Panel filed its Report concerning both the Rule 7 and Rule 6 matters with this Court on October 4, 2013.

A. Facts and Procedural Background

¶ 10 Wilcox's client, Love, suffered an injury while working as a practical nurse at the psychiatric ward at OU Medical on July 13, 2003. Transcript of the Hearing before the Professional Responsibility Tribunal (hereinafter, Transcript), p. 253. She discovered a patient hanging from a shower stall, and when she attempted to aid him suffered an injury to her back. Transcript, p. 253. Love reported the injury to her employer and began receiving temporary total disability benefits. Transcr...