STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY

2015 OK 25

Summary: Attorney Richard Wintory is a prosecutor in Arizona who previously served as a prosecutor in the Oklahoma County District Attorney's office for more than two decades before moving to Arizona and who retained his Oklahoma law license. While acting as a prosecutor, Wintory had several discussions with a confidential intermediary ("CI") appointed to aid the defense. Wintory later failed to disclose the number of discussions he had held to the court, characterizing them as only one discussion. When it became apparent that Wintory had failed to properly characterize his discussions with the CI, Wintory disclosed the situation to the Arizona Bar. By agreement, Wintory received a 90 suspension from the practice of law in Arizona. Wintory then informed the Oklahoma Bar of this matter and its resolution. In December, 2014, the Oklahoma Supreme Court entered a summary order of discipline. Wintory requested a rehearing on the grounds that Wintory was never given the opportunity to show cause why he should not receive discipline in Oklahoma based upon his Arizona activities. The Court withdrew the previous order and set the matter for further action. The Court suspended Wintory from the practice of law in the state of Oklahoma for two years and one day.

Legal Issues: None of the activities complained of in this matter took place in Oklahoma. Nevertheless, Oklahoma requires that its licensed attorneys abide by the Oklahoma Rules for Professional Conduct at all times, including when operating in another state based upon the license of another state. RGDP 7.7. 

Wintory raises a question of law regarding the substantive due process accorded one who has been disciplined by the bar of another state. The Court noted that pursuant to RGDP 7.7(b) that Wintory could have submitted a transcript of the Arizona proceedings to support his claim that those proceedings did not provide sufficient grounds for discipline in Oklahoma. Wintory was unable to do so because the Arizona discipline came as the result of an agreed order. The Court ruled that the facts underlying the discipline cannot be re-litigated and that one's ability to dispute the fact-finding of another state is limited to a review of the transcript of the other state's proceedings. Because Wintory entered into an agreed order in Arizona no such transcript exists and therefore Wintory cannot proceed to dispute the facts in Oklahoma.

The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma,, even those licensed in Oklahoma but practicing elsewhere.. This is accomplished through the Oklahoma Bar Association and its enforcement of the Oklahoma Rules for Professional Conduct for Attorneys ("ORPC").  If an attorney is alleged to have violated the ORPC, the Oklahoma Bar Association investigates as outlined in the Rules Governing Disciplinary Proceedings ("RGDP"). 

Because the change of status of an attorney from 'good standing' to 'suspended' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

An attorney is required to be honest in his dealings with all persons, the Court most definitely included. ORPC 8.4. Wintory's failure to fully and completely disclose the level of contact he had with the CI resulted in discipline.

In order to police the attorneys of this state in a timely fashion, an attorney who is disciplined for professional misconduct in any jursidicion is required to report this to the Oklahoma Bar within twenty days of the final order. (See, RGDP 7.7). 

Disucssion: In mitigation Wintory offered "his experience, his many accolades, and a two-decade career in Oklahoma during which Respondent was never subject to discipline". The Court appeared unmoved noting, in essence, that he should have known better.

Because Wintory has been suspended for a period of more than two years, he will have to formally seek readmission rather than being readmitted automatically at the end of his suspension. (See, RGDP 11.1).