STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY
350 P.3d 131
| Okla. | 2015Background
- Richard M. Wintory, an Oklahoma-licensed prosecutor, was disciplined in Arizona after multiple off-record contacts with a court-appointed confidential intermediary (CI) in a capital murder prosecution and misleading disclosures about those contacts.
- CI located the defendant’s birth mother; Wintory spoke with the CI several times (some with a paralegal witness), discussed CI’s complaints about defense counsel, and told the CI the State would not pay for her counsel.
- Wintory initially disclosed only one conversation, later signed an affidavit mentioning a paralegal witness, but did not disclose all communications; phone records later revealed additional calls.
- Arizona discipline: Agreement for Discipline by Consent admitting facts and violation of ER 8.4(d); 90-day suspension (Final Judgment/Order, 2014).
- Oklahoma proceedings: OBA transmitted Arizona order under Rule 7.7; this Court reviewed de novo, granted rehearing on due-process grounds and ordered Wintory to show cause.
- This Court concluded Wintory’s repeated undisclosed contacts and misleading statements were prejudicial to the administration of justice and suspended him in Oklahoma for two years and one day.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / Standard of review under Rule 7.7 | OBA: Court has exclusive original jurisdiction to impose reciprocal discipline; Arizona documents are prima facie evidence | Wintory: may challenge findings if transcript exists; sought due process show-cause | Held: Court has nondelegable regulatory authority; Arizona consent judgment is prima facie evidence and no transcript exists, so review limited to mitigation/explanation under Rule 7.7(b) |
| Ability to relitigate Arizona findings | OBA: Findings from other jurisdiction not relitigable absent transcript | Wintory: attempted to explain/mitigate conduct but lacked transcript to overturn findings | Held: Wintory cannot relitigate facts; may only offer mitigation/explanation; no transcript existed so prima facie evidence stands |
| Nature and seriousness of misconduct (candor to tribunal) | OBA: Multiple undisclosed contacts and misleading filings constituted dishonesty and prejudice to administration of justice | Wintory: contacts were misunderstandings/oversights; not equivalent to intentional deceit as in other cases (e.g., Layton) | Held: Unlike Layton, Wintory repeatedly and intentionally failed to disclose and misled court, defense, and co-counsel; misconduct is serious and prejudicial |
| Appropriate reciprocal discipline in Oklahoma | OBA: can impose same or greater discipline given public trust in prosecutors | Wintory: urged mitigation based on long career, accolades, prior Oklahoma record | Held: Imposed suspension for two years and one day in Oklahoma (greater than Arizona’s 90 days) as appropriate discipline |
Key Cases Cited
- State ex rel. Okla. Bar Ass'n v. Wilcox, 318 P.3d 1114 (Okla. 2014) (Supreme Court’s supervisory role in lawyer discipline)
- State ex rel. Okla. Bar Ass'n v. Layton, 324 P.3d 1244 (Okla. 2014) (no discipline where nondisclosure was understandable in chaotic trial conditions)
- State ex rel. Okla. Bar Ass'n v. Patterson, 28 P.3d 551 (Okla. 2001) (limits on relitigating another jurisdiction’s findings under Rule 7.7)
- State ex rel. Okla. Bar Ass'n v. Pacenza, 136 P.3d 616 (Okla. 2006) (honesty and integrity as cornerstones of legal profession)