STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN
2015 OK 34
| Okla. | 2015Background
- Larry D. Friesen, an Oklahoma lawyer, pled guilty in federal court to three misdemeanors for willful failure to pay employment taxes (26 U.S.C. § 7203) for three quarters in 2007; federal sentence: 36 months probation, 45 days weekend incarceration, 180 days house arrest, GPS monitoring, and $209,673 restitution (plus assessment).
- Federal sentencing and records showed broader tax delinquencies and prior unpaid employment taxes for multiple years; Friesen paid $110,327 to the IRS before plea and later paid additional taxes and restitution after 2009.
- Friesen attributed nonpayment to (1) embezzlement by his long‑time CPA, which depleted firm funds and caused foreclosure, and (2) heavy legal fees (~$250,000) defending a 2008 federal weapons indictment that resulted in a 2009 misdemeanor plea and private reprimand.
- He admitted responsibility, cooperated with the Bar, refrained from practicing since interim suspension (Oct. 13, 2014), and implemented office financial controls and an office manager.
- The Professional Responsibility Tribunal recommended lifting interim suspension and imposing a deferred suspension (two years and one day) conditioned on compliance with federal probation; the Bar sought suspension at least through house arrest.
- The Oklahoma Supreme Court reviewed de novo, found the failure to pay repeated and willful (withheld taxes used for other expenses), and concluded the misconduct reflects adversely on fitness to practice, but deferred final discipline so long as Friesen remains on federal probation and pays assessed costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Friesen's federal tax convictions demonstrate unfitness to practice law | Tax offenses reflect lack of respect for law and warrant suspension | Convictions were for failure to pay (not failure to file); mitigating circumstances (embezzlement, legal fees, remediation) mitigate unfitness | Court: Repeated willful failure to pay withheld employment taxes reflects adversely on fitness to practice; misconduct not minor but final discipline deferred while on federal probation |
| Whether client harm or practice‑related misconduct occurred to justify harsher discipline | Emphasizes duty to uphold law and deterrence; seeks suspension period | Friesen: no client harm, offenses not arising from legal practice, substantial mitigation and restitution | Court: No evidence clients were harmed; considered mitigation (remediation, restitution, character) in tailoring discipline |
| Appropriate disciplinary measure given convictions and mitigating factors | Bar: suspension at least through house arrest and likely longer | Friesen: deferred suspension sufficient given remediation, restitution, cooperation | Court: Interim suspension remains until pronouncement effective; imposition of final discipline deferred for duration of federal probation; costs assessed and must be paid before resumption of practice |
| Whether additional discipline may follow if probation violated | Bar: immediate notification and imposition of suspension on violation | Friesen: requested leniency tied to probation compliance | Court: Reserves right to impose full discipline if federal probation violated; requires notice by General Counsel within 10 days of any motion to revoke/accelerate probation |
Key Cases Cited
- State ex rel. Oklahoma Bar Ass'n v. Livshee, 870 P.2d 770 (Okla. 1994) (willful failure to file taxes tends to discredit the profession; suspension imposed only through pronouncement where mitigation existed)
- State ex rel. Oklahoma Bar Ass'n v. Spradling, 213 P.3d 570 (Okla. 2009) (failure to file taxes undermines public confidence and reflects lack of respect for law)
- State ex rel. Oklahoma Bar Ass'n v. Hart, 339 P.3d 895 (Okla. 2014) (criminal convictions do not automatically require finding of unfitness; de novo review and consideration of cumulative misconduct)
- State ex rel. Oklahoma Bar Ass'n v. Bernhardt, 323 P.3d 222 (Okla. 2014) (deferred suspension used in disciplinary context tied to outside criminal sanctions)