STATE EX. REL. OKLAHOMA BAR ASSOCIATION v. MCMILLEN
393 P.3d 219
| Okla. | 2017Background
- Mary E. McMillen, admitted 2012, pled no contest/entered plea agreements to DUI, open container, driving with suspended license, and DUI-causing-accident charges from 2015–2016; deferred misdemeanor sentences were imposed.
- The Oklahoma Bar Association filed a Notice of Deferred Sentence and the Supreme Court issued an Order of Immediate Interim Suspension on December 12, 2016, under Rule 7 procedures.
- McMillen had self‑suspended from practice Feb–July 2016 to seek treatment, began outpatient treatment after inpatient treatment was denied, attended AA, and worked in a limited assistant capacity beginning July 2016.
- She filed an Affidavit of Compliance notifying clients and waived a tribunal hearing; the Bar supported lifting the interim suspension but recommended a public censure with monitoring conditions.
- The Court compared facts to a recent, similar matter (Shahan), found no evidence of client neglect or unfitness, and emphasized the respondent’s ongoing treatment and rehabilitation efforts.
- Holding: the Court lifted the interim suspension, publicly censured McMillen, and reinstated her license subject to specified conditions (obey deferred‑sentence terms; abstain from alcohol/illegal drugs; participate in Lawyers Helping Lawyers or AA; comply with professional rules).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to set aside interim suspension | OBA implicitly supported lifting given McMillen’s treatment and compliance | McMillen requested lifting and no further discipline based on self‑suspension and ongoing treatment | Interim suspension lifted; final discipline imposed (public censure with conditions) |
| Whether criminal plea demonstrates unfitness to practice | Rule 7 requires discipline when plea shows unfitness; suspension initially appropriate | McMillen argued her offenses and treatment do not demonstrate unfitness | Court: not every conviction demonstrates unfitness; these offenses, with rehabilitation, do not establish unfitness requiring disbarment |
| Appropriate discipline for DUI-related offenses by an attorney | OBA recommended public censure with limited publication and monitoring conditions | McMillen sought no further discipline beyond lifting suspension | Public censure imposed with conditions (abstain, counseling/monitoring, comply with deferred sentence and RPC) |
| Conditions required for reinstatement of practice privileges | Monitoring, attendance at support program, compliance reports, completion of treatment | McMillen offered proof of compliance, ongoing counseling, AA attendance, and cooperation | Court required specified conditions (comply with deferred sentence, abstain from substances, contract with Lawyers Helping Lawyers or attend AA through 2017, follow Rules of Professional Conduct) |
Key Cases Cited
- State ex rel. Oklahoma Bar Ass'n v. Armstrong, 791 P.2d 815 (Okla. 1992) (framework for when criminal conduct indicates unfitness to practice)
- State ex rel. Oklahoma Bar Ass'n v. Cooley, 304 P.3d 453 (Okla. 2013) (criminal convictions do not always demonstrate unfitness)
- State ex rel. Oklahoma Bar Ass'n v. Shahan, 390 P.3d 254 (Okla. 2017) (similar DUI/recovery facts; public censure with monitoring was appropriate)
- State ex rel. Oklahoma Bar Ass'n v. Giger, 37 P.3d 856 (Okla. 2001) (examples of discipline in alcohol‑related attorney misconduct matters)