350 P.3d 131
Okla.2015Background
- Richard M. Wintory, Oklahoma-licensed prosecutor, was disciplined in Arizona after admitting (by consent) misconduct arising from multiple contacts with a court-appointed confidential intermediary (CI) in a capital murder case.
- The CI was appointed to help defense counsel locate the defendant’s birth mother for possible mitigation; she located the mother but had disputes with defense counsel and later retained counsel herself.
- Wintory had multiple phone conversations with the CI (some with a paralegal present, some without), discussed the CI’s complaints about defense counsel, and informed her the State would not pay for her counsel; he did not discuss defense strategy.
- Wintory repeatedly failed to fully disclose the number and circumstances of his contacts with the CI to his co-counsel, the trial court, opposing counsel, and the Arizona AG’s office; his filings and affidavit omitted several contacts later revealed by phone records.
- Arizona accepted an Agreement for Discipline by Consent, suspending Wintory for 90 days for conduct prejudicial to the administration of justice (ER 8.4(d)); Oklahoma initiated reciprocal disciplinary proceedings under Rule 7.7.
- On de novo review after a show-cause rehearing, the Oklahoma Supreme Court found Wintory’s lack of candor and withholding of information more serious than in Layton and suspended him from practicing law in Oklahoma for two years and one day.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona’s discipline is prima facie evidence under Rule 7.7 and limits relitigation | OBA: Arizona judgment constitutes prima facie charge; Court should review de novo but respondent may only challenge via certified transcript | Wintory: sought to explain/mitigate conduct; no transcript exists so limited challenge available | Held: Agreement is prima facie evidence; respondent may only submit mitigating evidence — no transcript exists, so cannot relitigate facts |
| Whether Wintory’s contacts with CI required disclosure and were improper | OBA: multiple undisclosed contacts and misleading filings were prejudicial to administration of justice | Wintory: contacts didn’t involve defense strategy and he reasonably judged disclosure unnecessary; some omissions due to forgotten facts | Held: Contacts were troubling; failure to disclose and repeated misleading statements were dishonest and prejudicial |
| Appropriate scope of reciprocal discipline in Oklahoma | OBA: impose discipline equal to or greater than Arizona given prosecutorial role and dishonesty | Wintory: mitigation (long career, prior clean record) warrants lesser sanction | Held: Court imposed greater discipline — suspension two years and one day (greater than Arizona’s 90 days) |
| Whether Layton controls (no discipline) | Wintory: compares facts to Layton to argue no intentional deceit; recommends no or minimal discipline | OBA: distinguishes Layton’s chaotic trial context; here repeated undisclosed contacts and written misrepresentations | Held: Layton distinguished; circumstances here more culpable — discipline appropriate |
Key Cases Cited
- State ex rel. Okla. Bar Ass'n v. Wilcox, 318 P.3d 1114 (Okla. 2014) (Oklahoma Supreme Court authority on disciplinary jurisdiction and standards)
- State ex rel. Okla. Bar Ass'n v. Layton, 324 P.3d 1244 (Okla. 2014) (no discipline where prosecutor’s non-disclosure occurred amid trial chaos; distinguished)
- State ex rel. Okla. Bar Ass'n v. Patterson, 28 P.3d 551 (Okla. 2001) (limits on relitigation of another jurisdiction’s findings under Rule 7.7)
- State ex rel. Okla. Bar Ass'n v. Pacenza, 136 P.3d 616 (Okla. 2006) (importance of honesty and integrity in legal profession)
- In the Matter of the Reinstatement of Page, 94 P.3d 80 (Okla. 2004) (statement on public trust in prosecutorial and judicial offices)
- State ex rel. Okla. Bar Ass'n v. Garrett, 127 P.3d 600 (Okla. 2005) (disciplinary principles and role of court in attorney fitness review)
- State ex rel. Okla. Bar Ass'n v. Moore, 741 P.2d 445 (Okla. 1987) (example of severe discipline for serious misconduct including falsification)