STATE ex rel. OKLAHOMA BAR ASSOCIATION v. NICHOLS

2015 OK 57

Summary: Attorney Robert John Nichols' license to practice law has been immediately suspended pursuant to an interim suspension. The Oklahoma Bar Association filed a complaint alleging three counts of improper behavior and asked for an immediate interim suspension of Nichols' license to practice law.

Legal Issue: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. 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.

The Oklahoma Bar Association has filed a complaint alleging three counts of improper behavior by Nichols which allege violations of ORPC 1.3 (diligence), 1.15 (safeguarding client property), and 8.4 (misconduct). The complaint can be found here. Pursuant to RGDP 6.2A the Bar moved for an order of immediate interim suspension in order to prevent further misconduct regarding Nichols' IOLTA trust account.

Discussion: The Court granted the immediate interim suspension of Nichols' license to practice law and appointed a receiver to take control of the cases and accounts of Nichols' law practice. The receiver will bring Nichols' practice to a halt by notifying any clients or adverse parties of the suspension and will hold any funds present in Nichols' accounts in trust awaiting further order of the Court.

FARGO v. HAYS-KUEHN

2015 OK 56

Summary: Plaintiffs were travelling southbound on a two-lane rural highway. Three vehicles were travelling northbound. The first vehicle slowed to make a left-hand turn. The second vehicle, allegedly a large truck, continued on at highway speeds and passed the first vehicle by entering the southbound lane passing the first vehicle, then returning to the northbound lane. The driver of the third vehicle alleged not to know that the first vehicle had slowed or stopped prior to the second vehicle pulling into the northbound lane. Upon seeing the first vehicle, the driver of the third vehicle also pulled into the southbound lane allegedly to avoid a collision with the first vehicle. When the second vehicle reentered the northbound lane, the driver of the third vehicle alleged to first see the oncoming motorcycle. The third vehicle attempted to return to the northbound lane, struck the first vehicle, then also collided with the motorcycle. The second vehicle did not make contact with any other vehicle. In its post-accident investigation the Oklahoma Highway Patrol determined that the driver of the second vehicle caused the accident due to inattention and failure to stop. Drivers of the first and third vehicles were dismissed from the case. The driver of the second vehicle moved for summary judgment.

Legal Issues: In order to successfully sue a party for negligence, the plaintiff must prove three things: (1) a duty owed by the defendant to protect plaintiff from injury (2) failure to fulfill that duty and (3) injuries to plaintiff proximately caused by defendant's failure to meet the duty. It is well-settled law that the driver of a motor vehicle owes a duty to every other person to operate that vehicle in a manner consistent with what a prudent person would do under the circumstances. Even if a driver is negligent in the duty to operate the vehicle, that negligence must have proximately caused plaintiff's injuries.

The Court held that the question of whether proximate cause existed is generally a question of fact and is only a question of law when there is no evidence from which a jury could reasonably find a causal nexus between the negligence and the injury. Questions of fact are to be determined by a trial and cannot be determined in a motion for summary judgment. Accordingly, the Court denied the motion for summary judgment and remanded the case for further proceedings.

Discussion: Justice Combs, joined by Justices Winchester and Taylor, filed a dissenting opinion. These justices would hold that the real legal issue was whether the driver of the second vehicle had a duty of care toward the plaintiffs, and that while the driver of a motor vehicle is under a duty of care to operate the vehicle, that a driver could not foresee that other drivers may act negligently or illegally. Looking to this lack of foreseeability, these Justices would have ruled as a matter of law that the driver of the second vehicle did not have a duty to the plaintiffs regarding the actions of the third driver.

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. PITTS-CARTWRIGHT

2015 OK 55

Summary: Attorney Betty Ann Pitts-Cartwright has been allowed to resign her license to practice law pending disciplinary proceedings. The pending disciplinary proceedings included accusations of failure to communicate with clients, failure to appear on behalf of clients, failure to file pleadings, misappropriation of client funds; fraud, and forgery.

Legal Issues: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. 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 'resigned' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

An attorney who faces disciplinary proceedings may apply to resign her license. Such a resignation requires approval from the Court. RGDP 8.1 and 8.2. Resignation under these circumstances automatically results in a five year waiting period before the former attorney may apply for readmission. 

Discussion: Resignation with pending disciplinary proceedings is not an admission of guilt, and no forensic investigation has been made into the validity of the complaints against the attorney. 

PRESCOTT v. OKLAHOMA CAPITOL PRESERVATION COMMISSION

2015 OK 54

Summary: Certain Oklahoma citizens challenged the placement of a Ten Commandments Monument on the grounds of the Oklahoma State Capitol under Article 2, Section 5 of the Oklahoma Constitution.

Legal Issues: The Oklahoma Supreme Court is the final arbiter of the Constitution of the State of Oklahoma. The challenge raised to the placement of the Ten Commandments Monument came not from the United States Constitution, but from the State of Oklahoma Constitution. Article 2, Section 5 reads: 

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

This provision is markedly different from the Establishment Clause of the United States Constitution. The Oklahoma Supreme Court looked to the usual usages of the words "no", "ever", and "any" to mean a broad and expansive ban on such uses. The Court further ruled that prohibiting uses of public property that "indirectly" benefit a system of religion was clearly done to protect the ban from circumvention based upon mere form and technical distinction. Thus, the claim that the Monument was on display for 'historic purposes' is not applicable in that the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths. While a 'historic purposes' justification may be sufficient for the Establishment Clause of the United States Constitution, it is not sufficient under the ban placed in the Oklahoma State Constitution.

Discussion: The United States Supreme Court ruled in Van Orden v. Perry, 545 U.S. 677 (2005), ruled that the Texas Ten Commandments monument did not violate the Establishment Clause in the First Amendment to the United States Constitution. However, the challenge here was not brought under the United States Constitution. This challenge was made under the Oklahoma State Constitution. In the federal system of government all states must abide by the United States Constitution. However, the various states are free to operate within the confines of the United States Constitution and place burdens on the state government which exceed those placed on government in the United States Constitution, or to grant the state's citizens rights which exceed those granted by the United States Constitution. 

There have been calls for the impeachment of the Supreme Court Justices who made this ruling today. These calls are poorly founded. Rather, if one disagrees with Article 2, Section 5 of the Oklahoma Constitution one should advocate for an amendment of that language.

LADRA v. NEW DOMINION, LLC

2015 OK 53

Summary: Ladra suffered physical injuries in her home from a partial building collapse caused by a 5.0 magnitude earthquake. She claims to have suffered damages in excess of $75,000. Ladra sued local oil and gas operators in Lincoln County district court, including 25 "John Doe" defendants claiming that their activities had caused the earthquake. Defendant's moved to dismiss the district court matter, claiming that the Oklahoma Corporation Commission had exclusive jurisdiction over cases involving oil and gas operations. The trial court granted the motion. Ladra appealed the dismissal.

Legal Issue: The sole question before the Court was whether the Oklahoma Corporation Commission had exclusive jurisdiction over cases involving oil and gas operations. The Court affirmed that the Corporation Commission did have exclusive jurisdiction over "the exploration, drilling, development, production and operation of wells used in connection with the recovery, injection or disposal of mineral brines." 17 O.S. §52.  However, the Corporation Commission is limited solely to the resolution of public rights, and is without authority (or means) to settle disputes between two or more private individuals where a public issue is not involved. Thus, the Corporation Commission can hear evidence and issue orders regarding the spacing and placement of wells, but it cannot hear cases where damages are sought by one party against another.

Discussion: While it was touted as 'allowing individuals to sue oil and gas producers for earthquake damages' when announced, this case really does not speak to that issue. Rather, the Court has announced that the issue of whether damages may be sought should be conducted through the state district courts, and not the Oklahoma Corporation Commission. 

ALEXANDER v. ALEXANDER

2015 OK 52

Summary: Rhonda Alexander filed for divorce from Joseph Dean Alexander on grounds of incompatibility. Joseph answered asking for a divorce based on incompatibility. Rhonda disclosed to the court that she suffered from a terminal illness and asked for an immediate divorce to allow her to leave her portion of the marital estate to her children. The trial court granted a divorce via court minute and ordered the parties to mediation regarding the marital assets. After this ruling, and before a journal entry was filed, Rhonda died. Joseph moved to dismiss the case on the grounds that Rhonda had died and the court therefore lacked jurisdiction.

Legal Issue: The question before the Court was whether a divorce, where both parties sought dissolution of their marriage, is effective at the time pronounced by the trial court even though property issues had not been settled and no journal entry had been filed. The Court ruled that it was.

When examining a motion to dismiss the Court will make a de novo review, taking as true all factual allegations. Ordinarily the Court will look upon a motion to dismiss with disfavor, but because a court must not hear any case where it does not have jurisdiction, a dismissal based on a lack of jurisdiction is not so viewed.

The Court examined in detail the distinction between an enforceable decision and an appealable judgment. A judgment is "the final determination of the rights of the parties in an action." 12 O.S. §681. A document memorializing such a "final determination" must at minimum contain four elements: (1) A caption setting forth the name of the court, the names and designation of the parties, the file number of the case, and the title of the instrument; (2) a statement of the disposition of the action, proceeding, or motion; (3) the signature and title of the court; and (4) any other matter approved by the court. 12 O.S. §696.3(A). Additionally, the document must be filed with, and endorsed and dated by, the clerk of the court. However, pursuant to 12 O.S. §696.2(D), documents titled "Court Minute" or similarly are by definition NOT appealable judgments. This allows the trial court to memorialize its decisions without triggering appellate timelines.

Although a judgment is generally not "enforceable in whole or in part unless or until it is signed by the court and filed," Oklahoma law carves out an exception for divorce proceedings, where the adjudication of any issue shall be "enforceable when pronounced by the court." 12 O.S. §696.2(E). Thus, a divorce is 'valid' as soon as the judge announces that is so -- regardless of when it is eventually written down, signed, or filed. In other words, the decision of the judge has the effect of granting the divorce upon announcement but does not become an appealable judgment until it is properly memorialized.

Joseph's motion to dismiss was not aimed at undoing the divorce. Rather, Joseph sought to undo that portion of the proceedings that dealt with the division of property. The trial court in Oklahoma is endowed with sweeping authority to bifurcate issues of property, child custody, and child support in divorce proceedings. The trial court's decision of an immediate divorce and reserving issues of marital property was held to be effective, even though it had not been memorialized in an appealable judgment.

Discussion: The Oklahoma Court of Civil Appeals heard a similar matter in 2003. In Whitmire v. Whitmire, 2003 OK CIV APP 87, the Court of Civil Appeals ruled that the trial court lost jurisdiction over the matter upon the death of one of the parties.  The Supreme Court overruled Whitmire, agreeing with the dissenting opinion in that case.

DUTTON v. CITY OF MIDWEST CITY

2015 OK 51

Summary: Dutton sought an extraordinary writ in the Oklahoma Supreme Court and challenged his convictions in three criminal proceedings in the municipal court for The City of Midwest City. He also requested an alternative remedy that would compel the District Court to provide him with a new appeal of his convictions in the District Court.

Legal Issues: The Court looked only to whether it had jurisdiction over this matter and found that it did not. Lacking jurisdiction, the matter was dismissed.

Dutton is seeking relief from what is clearly a criminal case. As explained before, Oklahoma has two courts of ultimate jurisdiction. The Oklahoma Supreme Court, which handles questions all matters of law and equity other than criminal matters. Criminal matters are handled exclusively by the Oklahoma Court of Criminal Appeals.

Questions of which court should hear an issue are somewhat rare. The Oklahoma Supreme Court noted that there are four primary distinctions between the jurisdictions of the two courts: 1) Whether the otherwise civil action (such as habeas corpus) has been converted into a criminal action by legislative action (habeas corpus as related to criminal actions are heard by the Court of Criminal Appeals, other habeas corpus matters are before the Oklahoma Supreme Court); 2) Whether the appeal involves an institutional issue of the trial court which does not relate to the propriety or enforcement of a criminal judgment (e.g. compensation of attorneys on a criminal matter); 3) Whether the Court of Criminal Appeals has exceeded its appellate jurisdiction; and, 4) Whether the otherwise criminal action has been endowed with a civil action component by the legislature.

The Court went on to note that while it does have superintending jurisdiction over the state district courts, such jurisdiction is held at an institutional level and not on the case level. Thus, the Court may exercise its superintending jurisdiction to establish procedures to be followed by the trial courts, it does not exercise this jurisdiction on the individual case level.

Discussion: Dutton also requested that he be appointed legal counsel in this matter. The Court noted that some civil actions do rise to the level where appointed legal counsel is appropriate (an example might be when dealing with Department of Human Services and a deprived child designation), but that this case did not meet that designation.

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DEMOPOLOS

2015 OK 50

Summary: In STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DEMOPOLOS, 2015 OK 5, the Oklahoma Supreme Court issued an interim suspension for attorney James M. Demopolos. The interim suspension was issued due to his entry of a guilty plea to charges of one count of Obstructing an Officer, one count of Threatening an Act of Violence, and one count of Domestic Abuse (Assault and Battery) in a deferred sentencing agreement. This is the final resolution of that matter. 

Legal Issues: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. 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.

As one would expect, an attorney is required to obey the criminal laws of the state. ORPC 8.4 (b) prohibits an attorney from committing a "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Thus matters such as routine traffic tickets or even a single DUI are not necessarily actionable. The commentary to the rule notes: "Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation."

In case any ambiguity existed on the point, the Court ruled, "A lawyer's guilty plea or criminal conviction for a violent act of domestic abuse is a violation of the Oklahoma Rules of Professional Conduct, 5 O.S. Ch. 1, App. 3-A, Rule 8.4(b).21 Respondent's guilty plea for a violent act of domestic abuse merits professional discipline imposed by this Court." (Emphasis in the original.)

Before entering discipline, the Court noted that Demopolos had been through a 30 substance abuse in-patient treatment and was now involved with AA after this incident. The Court recognized that Demopolos was on a two year suspended sentence and looked to other cases when the length of the criminal penalty was taken into account in discipline of attorneys. The Court further noted that "...[W]hile we have considered compliance with court-ordered conditions for the purpose of mitigating professional discipline, this Court expects a lawyer's compliance with a court order as a professional attribute and such compliance is not a quid pro quo for mitigation. A respondent's compliance with court orders, such as attendance and voluntary commencement in a treatment program, is merely one factor when we examine the record for evidence of an actual change in attitude and conduct that the lawyer's treatment is designed to foster." (Emphasis in the original.)

As part of its deliberations, the Professional Responsibility Tribunal recommended a six month suspension of Demopolos from the practice of law with two year and one day deferred suspension from the practice of law.

The Court created a more explicit set of rules governing deferred suspension, then entered discipline. The Court suspended Demopolos' license for one year, dating back to the date of the initial interim suspension on February 2, 2015. The Court entered a further year of deferred suspension to commence on February 2, 2015.

Deferred Suspension Rules: 

The Court crafted new rules for the category of attorney suspension designated as "deferred suspension". The Court noted that an attorney has a due process right to protection of his license to practice law, and that any suspension of that license even under a deferred suspension arrangement would trigger such due process rights. Therefore, the Court ordered an attorney practicing law while under a deferred suspension would have the following due process: That [the lawyer's] practice shall continue with General Counsel's notification filed in this Court showing (1) the Respondent has violated his probation, (2) a request that the Court immediately implement a deferred suspension, and (3) the General Counsel has provided notice to Respondent of the Bar's filing." The Bar can seek and the Court can grant interim suspension pending a court hearing based upon an alleged probation violation. But, an order of the Court implementing a deferred suspension of a lawyer's license to practice law because of a violation of the associated deferred-suspension conditions must be based upon facts before the Court showing that the lawyer has actually violated the probation.

Discussion: Justice Taylor entered a one-sentence dissent stating that he would not allow any attorney to practice law while under criminal probation.

JENSEN v. POINDEXTER

2015 OK 49

Summary: During the course of his representation of the father of a minor child, attorney William D. Thomas suspected mistreatment of the minor child. Thomas questioned the minor child without the knowledge or permission of the child's mother. Thomas then entered an affidavit personally attesting to the truthfulness of the minor child and filed an application for emergency custody of the child based upon the child's responses to his questions. Mother then filed a motion to dismiss Thomas as father's attorney because Thomas had become a necessary witness in the case. The trial court sustained the motion and father appealed. 

Legal Issues: The Oklahoma Supreme Court has previously ruled that a litigant has a fundamental right to be represented by counsel of his or her choice; but, a litigant's right to choose his or her counsel is "not absolute" and "may be set aside under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process." Towne v. Hubbard, 2000 OK 30. Attorneys are usually prohibited from acting as an attorney for either side when they are, or may become, necessary witnesses to the case. Oklahoma Rules of Professional Conduct 3.7. Because attorney Thomas performed a forensic examination of the minor child when no other person was present, mother was required to call Thomas as a witness in order to challenge the results of the questioning. As a result, the trial court's order disqualifying Thomas as an attorney in this action was sustained.

Discussion: The Court notes that attorneys are not uniformly prohibited from interviewing a child witness. In this case, it was necessary to call attorney Thomas as a witness in order to attack the validity of the findings reported from the interview. Justice Gurich, joined by Justice Kauger, issued a special opinion concurring in part and dissenting in part with the majority opinion. In particular, these Justices wished to make it clear that an attorney can and should interview a child witness when required to do so in preparation of their case. In addition, these Justices noted that while the father had not been officially declared as such in a judicial proceeding, that the father should be regarded as having all of the constitutionally protected rights regarding his relationship with his child. It is not clear if other Justices, or a majority of them, would concur with this finding.

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WARD and STATE ex rel. OKLAHOMA BAR ASSOCIATION v. STARR

2015 OK 48

Summary: Separate disciplinary hearings were held by the Oklahoma Bar Association against Farley Ward and Rex Earl Starr pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP). Both hearings related to the actions of Ward as prosecutor and Starr as defense attorney during the 2009 murder trial of Clinton Potts. Potts was convicted of murder. On appeal of the conviction, an evidentiary hearing was held before the Oklahoma Court of Criminal Appeals where Potts alleged that Starr had ineffectively assisted him as legal counsel and Ward had wrongfully withheld information regarding a witness at the trial. Neither Starr nor Ward testified or presented evidence at that hearing, with Ward being wrongfully released from his subpoena and Starr remaining available for testimony but never being called. The Oklahoma Court of Criminal Appeals overturned Potts conviction based upon prosecutor Ward’s alleged suppression of favorable evidence and defense attorney Starr’s alleged failure to provide effective legal counsel.

Legal Issues:

Prosecutor’s duty to disclose: Prosecutors hold a special role in the justice system. Prosecutors have unique control over the evidence and witnesses produced as a result of a police investigation. They are required to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or which mitigates the offense. (ORPC 3.8(d)). The OBA alleged that Ward withheld information regarding a witness which, if presented at trial, could have had a material impact on the outcome. The Court found that there was not clear and convincing evidence that Ward knew the information, nor that he could have learned about it by further investigation. As such, the charges against Ward were dismissed.

Defense attorney’s duties of competence and diligence: Every attorney is required to act with competence and diligence in the representation of his client (ORPC 1.1, 1.3). The charges against Starr result from his failure to call seven witnesses which Pott’s appellate attorneys alleged he should have and his failure to interview the more-than seventy state witnesses prior to trial. The Court ruled that there was no evidence in the record to support a finding that Starr acted incompetently or with a lack of diligence. Starr reviewed the police records of their interviews with each of the state’s witnesses and elected to not call the other witnesses as a matter of considered trial strategy. The Court noted that while Starr may not have defended his client in the same way that the appellate attorneys or other attorneys might have, this was not of itself evidence of a failure on Starr’s part.

Starr’s Affidavit: The appellate attorneys interviewed Starr and drafted an affidavit for Starr’s signature based on that interview. Starr signed the affidavit with only a cursory review of the document. The affidavit, while truthful in all of its particulars, had been drafted in such a way as to suggest that Starr’s representation of Pott had been less-than-sufficient. The OBA argued that Starr’s signature of the affidavit amounted to committing a fraud on the court. The PRT ruled that while the affidavit was not fraudulent, Starr was negligent in his signature of the affidavit and should be censured as a result. The Court concurred that Starr was negligent but declined to censure him.

Discussion: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. 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, or challenge to the status, of an attorney from 'good standing' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

The Court declined from adopting a more strenuous level of discovery requirement for prosecutors as urged by a formal opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility and recently adopted by North Dakota. As such, the Court delegates discovery issues in criminal matters to the competence of the trial courts and the appellate criminal courts. The Court ruled that its role in criminal discovery is limited to those "cases in which conduct occurs that reflects upon the character of the prosecutor: conduct that cannot be fully addressed by orders relating to the underlying case." This would imply that a showing must be had that the prosecutor’s actions stemmed from some flaw in that prosecutor’s character, and not merely an ordinary lapse of diligence.

The Court repeatedly noted Mr. Starr’s forty years of experience as an attorney without prior discipline from the Court. One can but wonder if an attorney of lesser stature would receive similar treatment.