State Ex Rel. Oklahoma Bar Ass'n v. Eakin

ex rel. of Oklahoma OKLAHOMA STATE ASSOCIATION, Complainant,

BAR EAKIN, Respondent.

William W. No. 1166.

OBAD No. 4022.

SCBD

Supreme of Oklahoma. Court 10, 1995.

Oct.

As on Limited Amended Grant 12, 1995.

Rehearing Dec. Counsel, Welch,

Allen J. General Assistant Association, City, Bar Oklahoma Oklahoma Complainant. for Rife, Perry, Rife, Gary & A. Walters Sulli- van, City, Respondent. Oklahoma ALA, OP Justice. disciplinary proceeding against a (1)

lawyer, the issues to are: Is be decided meaningful record1 sufficient a de complaint’s disposi- consideration of the novo one-year suspension Is a with tion? and respon- a imposition of costs fit sanction for professional discipline? We dent’s breach of questions both in the affirmative. answer or [OBA The’ Oklahoma Bar Association charged William or Bar] [Eakin W. respondent], lawyer a and former licensed judge, district one count associate with proceedings professional misconduct. The pressed allegedly for acts committed were serving hearings, a judge. while After Responsibility [PRT] Professional Tribunal Rule respondent guilty violating found 8.4(c) (d) Pro- Oklahoma Rules of sus- fessional Conduct2 and recommended nine pension from the of law for payment months cum of costs. IN I

FACTS SUPPORT OF COUNT (Hathaway) Hathaway Erma Loretta was also Eakin’s friend former client. She wife, daily keeping a friend of his was her, going to her contact with oftentimes house for coffee conversation. Hatha- defendant, way, pro in two se was sued placed claims which on re- small had been spondent’s litigation precip- docket. failure pay itated her health care- expenses she was hos- related incurred while transcript the Pro- 1. The record of a “Rule 8.4. Misconduct consists hearing, Responsibility Tribunal lawyer fessional professional to: "It is misconduct for admitted at Oklahoma Bar Association’s exhibits hearing, admissions. (c) engage involving dishonesty, in conduct fraud, misrepresentation; deceit (d), 2. The terms of (d) engage conduct that is Conduct, O.S. Rules of Professional Oklahoma * * *” justice; administration state: Hathaway dur- tacted several times about the pitalized. Eakin had visited stay hospital ing upcoming hearing her in the and she had been her connection with guest evening home the before the any desire not to reveal of her assets. She hearing. He advised small claims came for discussed with Eakin her intention parties Hathaway relationship of his account, personal checking close and offered to recuse himself. no one When open checking account in her name aunt’s cases, objected, entering sepa- (c) he heard the claim, hearing, at the assets judgments against Hathaway in rate a total personal checking she did not have a account. amount of $963.69. expressed also concern that plaintiffs’ lawyer writing a had seen her very upset became over these personal checking on her check account. Re- rulings and to Eakin’s later that went house spondent telling Hathaway admitted that the morning where wife and she threatened his plaintiffs’ lawyer disprove that the could against made Eakin harm also threats and to allegedly check he saw her drawn write was judge’s Upon learning home. about this on her aunt’s rather than her own account. incident, Hathaway’s Eakin went to resi- conversations, During one of these gave dence and her a check for She $945.00. Hathaway told that he had never heard up accepted tore the check but later from anyone county being prosecuted in the Eakin another one for the amount. same for perjury committed in a small claims assets Eakin, According to he wrote the cheek in an hearing. attempt Hathaway’s friendship to rekindle Respondent Hathaway with his wife. told to Eakin learned from the local at- district money pay judgments use the either the torney investigation he was under legal appeal an or the fees for from his perjury possession subornation Hathaway decisions. cashed the second property and concealment of stolen apparently money check but did not use allegedly given by had been to him Hatha- purpose given. for the it was way. resigned He from office two weeks According respondent, resigned later. Hathaway sought help in next Eakin’s charges anticipated rather than face from drafting her motions for new trial in both law, three sources—violations of criminal cases. She came to his office where he hand- the Code of Judicial Conduct5 and of the wrote the form to be used. It listed two Rules of Professional Conduct.6 Hathaway grounds for new trial.3 used the form, adding ground a third to the motions.4 considering

Eakin then recused himself from I quest. trial new The motions THE RECORD BEFORE THE COURT IS by judge were overruled another Hath- after A DE COMPLETE FOR NOVO CON- away appear hearing. had at the failed ALL REL- SIDERATION OF FACTS plaintiffs pressed for a One of the later EVANT TO THIS PROCEEDING hearing Respondent agreed on assets. Supreme preside proceeding. He continued the The Oklahoma Court has twice, hearing request original jurisdiction over Bar disci at least at the of both exclusive plinary proceedings.7 plaintiff. and the con- The court’s review is Conduct, O.S.1991, Respondent’s 6. Ch. handwritten form lists two Rules of Professional grounds "is for new trial —i.e. that the decision 3-A. by evidence” and "is not sustained sufficient contrary to law.” Old., Donnelly, 7. State ex rel. Okl. Bar Ass'n v. (1992); Bar 848 P.2d State ex rel. Okl. by Hathaway ground 4. The third added Raskin, Okl., Ass’n v. respondent’s form for a new trial motion is “er- Ass'n, Okl., Tweedyv. Oklahoma Bar trial, occurring excepted law at the ror of Integration In re State Bar the defendant.” Oklahoma, 185 Okl. Conduct, O.S.1991, 5. Code of Judicial App. 4. II by de consideration on record.8 novo findings authority’s trial nor its Neither the weight credibility of assessments of the AND CONCEALMENT POSSESSION can bind this court.9 In a de

the evidence OF STOLEN PROPERTY review, in which the court novo on-the-record invested, constitutionally non- exercises its argued During the PRT the OBA power regulate delegable both proper- some that Eakin had received stolen practitioners,10 a legal law and nonde- including ty Hathaway, building materi- exploration all ferential relevant full-scale of an als to be used in the construction mandatory.11 facts to his In return for the addition home. asserts, Eakin property, stolen had court’s task cannot be dis treatment in the assured her favorable charged panel the PRT submit for a unless OBA, According when small claims. (of issues) a de novo examination all material represented plaintiffs came to court complete proceedings.12 record of Our (judi- opponent previous in the initial task to ensure that the tendered cial) thorough probe election, into compelled record is sufficient for Eakin felt to enter crafting appropri essential facts and for plaintiffs. He then took discipline13 ate that would avoid the —one steps effect action to ameliorate the of his upon respondent-lawyer visiting vice of against by him- Hathaway, opines, the OBA disparate treatment.14 adjudicated paying self amount. These measures, extraordinary urges, the OBA are adequate hold record is novo We de quid pro quo illegal evidence of an between respondent’s alleged consideration of miscon- consti- and hence duct. 6.13, Okl., Governing Lloyd, 12. terms of Rules Dis- 8. State ex rel. Okl. Bar Ass’n v. 787 The O.S.1991, 1, 855, II]; Proceedings, App. 1- [Lloyd ciplinary 5 Ch. State ex rel. Okl. P.2d 858 A, provide part: Okl., 979, in Stubblefield, P.2d Bar Ass’n v. 766 982 Cantrell, (1988); "... Trial Panel shall file with the Clerk [T]he ex rel. Okl. Ass'n v. State Bar Okl., 1292, Raskin, Supreme report a written which of the Court supra 734 P.2d 1293 findings Panel’s shall contain the Trial cogni 7 at this note 265-266. Because court's of fact pertinent on all issues conclusions law disciplinary proceedings be zance cannot added.) (Emphasis ...." institution, any every aspect shared with other adjudicative process super Bar’s must be complete well-nigh necessary 13. record de attrib vised our novo consideration. This disciplinary proceeding. a bar review of The jurisdiction nondelegable ute of serves to distin to be be material considered never to deemed disciplinary guish the conduct of bar functions beyond ability expand it. settled our The de novo—a retrial in different from trial always plenary within record remains this court's appellate from de review on power court—or even novo supplementation. to order State ex rel. Moss, Okl., 403, independent, which stands for an non- v. Okl. Bar Ass'n (1990); 404 Samara, Okl. Bar v. examination of another tribunal's rec State rel. Ass'n deferential Okl., P.2d ex rel. 683 983 State Okl. ord. Okl., Warzyn, Bar Ass'n v. 1071 (1981). See also State ex rel. Okl. Bar Ass’n v. Raskin, supra note 7 265. The 9. at Okl., (1990), Armstrong, 816 which 791 Governing Disciplinary Rules terms Rule lawyer suspension that an of a teaches interim Proceedings, are: incomplete made cannot be on an record. The problem this same confronted court in State ex "(a) may approve Supreme the Trial Court Lloyd, Bar SCBD No. rel. Okl. Ass'n findings fact its Panel’s or make own inde- There, [Lloyd received I]. November pendent findings, impose discipline, dismiss the accept authority's the trial recom we declined proceedings or take such other action as it the case for a full evi- mendation returned added.) appropriate." (Emphasis deems dentiary hearing panel whence before it explanation appli complete came. For Raskin, 266; Tweedy,supra supra 10. note at II, Lloyd procedure, cable note 7 at 1052. 856. Okl., Okl., Dugger, Perceful, Bar 11. State ex rel. Ass'n v. ex rel. Bar Ass’n v. Okl. Okl. (1990). (syl.) P.2d 486 against tute conduct to the administration charge. urges defend He he was 8.4(d) justice in the Rule irreparably injection sense.15 harmed the Bar’s argument point, feature, of its on this probative that claims presented testimony OBA of the district at- tainted colored the other PRT adverse torney, judge Hathaway. the district findings, contaminating the entire urges respondent’s The Bar that acts re- process. ceiving concealing property stolen are The OBA the issue of stolen meaning dishonest conduct within the of Rule property, though not referenced the com- 8.4(c).16 plaint misconduct, separate as a count knowingly The PRT found Eakin received merely offered to establish motive for other property. and concealed stolen While it did By acts that stood failing admitted.17 not state that quid pro Eakin’s acts were his object any testimony about the stolen quo decision, for a favorable PRT found property at hearing, the PRT ar- OBA place there respon- was sufficient evidence to gues, respondent any objection has waived jeopardy dent in charge “serious as to a of may offending proof. have had to the Even knowingly receiving concealing stolen testimony possession if the about Eakin’s property.” property concealment of stolen should be complains the lion’s share of adds, disregarded, report,

the PRT as well bulk of the other prove dishonesty, acts the record brief, property OBA’s is devoted to the stolen fraud, misrepresentation. deceit or argues issue. He that this issue is the foun- remaining findings upon process dation for the fundamentals of due applicable lawyer disciplinary proceedi the PRT made its are recommendation for disci- pline. prior ngs.18 allege Because he neither had notice The Bar must facts sufficient put that the Bar would proper- lawyer include the stolen the accused on notice of the ty in complaint element its in- charges nor was he ample and afford the by language, opportunity formed of that count its Eakin against allegat to defend the he opportunity contends was denied an to ions.19 Because the facts stated in the com- 8.4(d), pertinent charges against 15. For the terms of Rule see notice of the him. Colev. Arkan sas, 196, 201, 514, 517, 333 U.S. 68 S.Ct. 92 (1948); Gault, Application L.Ed. 644 387 U.S. 8.4(c), 16. For the terms of Rule 1, 34, 1428, 1446, 87 S.Ct. 18 L.Ed.2d 527 supra note 2. (1967); Tulsa, 697, 699, v. Eaton 415 U.S. 94 1228, 1230, (1974); S.Ct. 39 L.Ed.2d 693 Pres proposition 17. For this the OBA cites 12 O.S. 14, 16, 235, Georgia, nell v. 439 U.S. 99 S.Ct. 2404(B), provides § 1991 that "[e]vidence 236-237, (1978). 58 L.Ed.2d 207 See also State crimes, wrongs, may of other or other acts ... Johnston, Okl., ex rel. Okl. Bar Ass’n v. 863 P.2d proof ... be admissible for ... of motive....” 1136, (1993); 1143 State ex rel. Okl. Bar Ass'n v. 434, Okl., (1990); Moss, Miskovsky, 804 P.2d 440 Okl., Lobaugh, 18. State ex rel. Okl. Bar Ass'n v. 407; Lobaugh, supra supra note 13 at note 18 at 806, (1988). 781 P.2d 811 811. A variance between the tendered fatal Governing proof allegation single Disciplinary and the 19. Rule Rules Pro- count offends 1, ceedings, process. provides: A 5 due variance occurs when facts alleged proved at trial are different from those in complaint specific “The shall set forth the facts misconduct, the indictment. test of whether variance alleged constituting pri- the and if proof allegation the at and between trial the in resulting discipline, or conduct in or evidence the fatal investigations, indictment is is “whether there has been prior upon is relied to such a variance as to ‘affect the substantial discipline, prior enhance the acts or conduct States, rights’ Berger upon of the accused.” v. United relied shall be set forth." 78, 630, 82, 629, U.S. S.Ct. 79 L.Ed. 1314 requires specificity ap- 295 55 Rule 6.2 the same that (1935). plies A variance between the indictment and in a criminal information and indictment. State, Okl.Cr., the evidence at trial is unless the defendant See in this Hatton v. 96 connection fatal 227, 170, (1952) (the gist anticipated Okl.Cr. 171 could have from the indictment what be, sufficiency proof of an indictment or information is would or unless a conviction on the alleges every subsequent prosecution it indictment bar a whether element of offense would sufficiently Cowley, charged apprises intended to be and for the same offense. United States v. (10th also, Cir.1971). prepared the defendant of what he must be to 452 F.2d 247 See meet). variance), guarantees (fatal process 1392- Dictionary Due the defendant 547 Law Black's 650 sup- give convincing proof and to

plaint Eakin sufficient notice of short clear did fails press, port PRT Because the record intention to at the scienter. Bar’s alleged proof, supply qua element of hearing, the critical element his to this sine non convincing complicity receiving property in for an we there is no clear stolen conclude quo, pro passing respon- illegal quid pro quid quo it was burden evidence of a his object proof Hathaway. proffer improper to the Bar’s dent for favor for a to afford him to ask continuance Respondent’s that fail- time to meet issue.20 Ill error, to'object operates ure to waive the if any, admitting in in fatal evidence stood AND EX PARTE COMMUNICATIONS complaint’s allegations. with the variance PREJUDICIAL OTHER CONDUCT TO THE OF JUS- ADMINISTRATION It is the OBA’s burden to estab TICE by charges lish evid clear pre- post- no clear The OBA Eakin’s ence.21 On there is that, Hathaway— convincing proof paHe contacts with the time it, i.e., night home visiting the character of the at his received knew hearing, paying her question The Bar property in as stolen. before the small claims had prove guilty judgments the amount of the which he failed to the critical element of her, knowledge.22 attorney’s drafting a trial against district entered new local may pressing testimony that Eakin have some time motion use claims, falls in the small suspected property later was stolen vacation his decisions (5th (variance) 1979); (c) finding against People ’’... the re- v. Guerre To warrant a 1393 ed. ro, (Cal. 1943). case, charge spondent 22 Cal.2d contested allegations pleadings charges by variance between the clear must be established and con- actual evidence, and the ly is deemed material if it has vincing at least two the mem- party prejudice misled the adverse bers Trial must concur in the Panel maintaining the The burden action or defense. findings.” deeming adversely upon party himself cast Farrant, State Bar Ass'n v. See Okl., ex rel. Oklahoma prove preju variance that he is affected ex rel. impaired in his diced ability amendment Okl., Gasaway, v. P.2d Oklahoma Bar Ass'n Liberty v. do battle. Plan Co. forensic State ex rel. Oklahoma Bar Co., Okl., 360 P.2d Francis T. Smith Lumber Braswell, Okl., Ass’n allegations Similarly, the of fraud (1983). For a discussion of the clear-and-con particularity to must be stated with sufficient Texas, vincing proof, Addington of v. standard opposing prepare party to re enable the his/her 424-425, 1804, 418, 431-432, U.S. 99 441 S.Ct. Akin, Gay sponsive pleadings and defenses. v. 1812-1813, (1979) 1808-1809, 60 L.Ed.2d 323 985, (1988); Okl., Gianfillippo v. P.2d 766 993 (in proceedings civil a commitment clear-and- 308, Co., Okl, Cas. 310-311 Northland required convincing proof of standard to meet Co., (1993); v. Bank Trust Brown Founders and demands). process Addington due observes 855, (1995). Okl., P.2d 862 890 (or levels) proof— there are three standards of property 20. The stolen issue was constituent doubt, i.e., beyond a reasonable clear and con its broad element of the Bar’s in of vincing preponderance the evidence. The and of specifically violation. Unless a variance is rules standard of clear and intermediate prejudi- the attention and its called to tribunal’s evidence, important protect indi which serves to shown, complaining party waives cial effect the cases, vidual interests in civil reduces the risk of pleading and deemed to the variance the will be by increasing plaintiff's per error the burden of law, amended, operation of have been Id., 424, U.S. suasion. 441 at 99 S.Ct. at 1808. proof, though no formal to the even conform (a) higher, beyond- distinguishable It is from the required sought was and none was amendment standard, designed which a-reasonable-doubt 503; Liberty, supra at court. note 19 the nearly possible the likelihood of to exclude as Okl., 1084, Walton, 1084 Thompson v. lower, (b) judgment, an erroneous Cann, 2) (syl. Kelly 192 Okl. 136 v. standard, preponderance-of-the-evidence Sheffield, 181 Okl. 899 Cook P.2d requires litigants to the risk of error in share (1938). State v. See also roughly equal fashion. Id. (Utah Marcum, 1988). P.2d 22.Guilty knowledge Day- is known as scienter. Governing Disciplinary Pro- Rules Rule Co., Corp. Lia. v. Amer. Mut. Ins. provides ton Hudson ceedings, Okl., pertinent part: in parte light and several ex communications about adverse decisions. In of this relation- hearing ship, argues, respondent’s post- on assets which had been as- the OBA (1) i.e., signed together to him—when considered advising Hathaway that acts — prejudicial jus- motion, are to the administration prepar- she file a needed to new trial of 8.4(d)23 in ing tice the Rule sense and are a handwritten draft of the motion for her use, meaning dishonest and within the monitoring statutory period deceitful 8.4(c).24 Rule This conduct was even more filing prejudicial its conduct —constitute inexcusable, adds, light the OBA of re- justice. Respondent the administration of spondent’s personal relationship with Hatha- improperly counters he did not act in advis- way. The notes that Eakin ing Hathaway pursue OBA was legal how to her reme- Hathaway’s lawyer; Eakin, former he had em- pro litigant. According dies as a se ployed remodeling her son his merely showing her a motion for new trial (c) home; Hathaway personal was a close turpitude25 does not involve moral and hence (d) wife; friend of both Eakin and his discipline. cannot be a for- basis Hathaway during Eakin had visited her hos- (the

pitalization giving latter occasion rise to Postjudgment Hearing On Assets claims). short, urges small Respondent, assigned who had been parte that Eakin’s ex communications stand case, hearing on assets talked proof supportive as elements of the OBA’s purpose to her on several occasions about the charge that he had breached the terms of (d). procedure stage of and in that of the case. He concedes she had talked to him about Respondent’s Payment Hathaway account, To possibly closing checking open- ing person another one in the name of third payment The PRT found that Eakin’s testifying about at the assets Hathaway “strange at best” and $945 personal checking that she had no account. “strong [OBA’s] evidence claim that parte The OBA that Eakin’s ex com- [respondent] improperly.” acted The OBA munications extraor- prejudicial submits that this conduct is dinary measures he undertook to assist her justice. Although administration he con- after the trial are acts payment Hathaway may cedes have justice. administration The PRT de- mistake, been Eakin believes that he has scribed that behavior as “an unbelievable nothing wrong. done There is no element of Moreover, judicial lack of restraint.” submits, dishonesty, respondent fraud or adds, pattern parte OBA communi- making payment. during cations between stages the various is further evidence of con- For New Trial Motions involving dishonesty duct or deceit. recognized The PRT that while in small Hathaway, litigants often in at- Eakin counters that the re- claims the court aids case, officials, quest tempting present their of law enforcement initiated Hathaway attempt entrap relationship with should these conversations in an to unusual preventing him have been understood as him.26 He directs us to testimo- assisting challenging ny her in that the discussions would not have taken earlier 8.4(d), entrapment pertinent 23. For the terms of Rule see whether constitutes a defense in bar supra disciplinary note 2. cases has not been settled in Okla- entrapment proven, Even if were homa. 8.4(c), 24. For the terms of Rule see corroborate, rebut, urges, OBA it would supra note 2. charge of We need not reach that unfitness. postjudgment issue here. On this record Eakin’s acts, 25. For a of recent excision of the mor- discussion together, amply sup- when considered are turpitude from the now-effective al standard (a) finding portive of the PRT’s of rules violation Conduct, Rules of Professional see note 37. infra (b) imposing professional and the need for disci- panel 26. One PRT member based his dissent on pline. alleged attempt by law enforcement officers entrap Eakin. The OBA notes that the issue body- testify falsely place equipped hearing with a at the assets had she not been —i.e. checking did not a account— microphone to record the conversations. that she have (b) her to conceal assets from clear On this there is by personal checking closing creditors respondent en convincing evidence27 that in her opening account and another aunt’s parte ex communications gaged extended name. These claims are but two elements of components litigant about material with a of others, among proof, of several proceeding pending be the merits a then of charge the Bar’s that breached hearing All court —the on assets. fore (d).29 directs Rule The OBA us to other “behind the backs” of the this occurred told he Eakin’s admission that he proceeding litigants. In an adversarial anyone county had never heard lawyer’s present proof function is to being prosecuted perjury committed in a may according the case end that be decided hearing. small claims assets judge to law. A must be a detached arbiter. Eakin, According to he made state- parte Hatha Eakin’s ex communications with merely allay Hathaway’s fear that ment impending way about assets charged perjury could be with even if she she perception taints the of decisional fairness Moreover, nothing wrong. urges, Eakin did adversely reflects on his fitness (a) Hathaway’s testimony indicates respon practitioner.28 hold that licensed We perjury issue in the context of the arose pattern parte ex dent’s communications entrapment he never scheme coun- Hathaway during stages the various with perjury. her to commit The selled district aspects material the forensic contest about attorney, investigated charge who also only prejudicial pending case is not attempted perjury, subornation of testified judicial process and in the administration of he that when talked to about 84(d) but, the facts violation Rule under charge, “acquiesced” the latter had shown, it is also with dishonest deceitful allegation. explained acquies- He 84(c). meaning Rule in the “fairly meant cence he that Eakin was unre- sponsive Although issue.” believed IV enough Ea- there information convict charge, attorney kin on this the district stat- ATTEMPTED OF SUBORNATION on cross that his ed examination “assess- AND PERJURY CONCEALMENT perjury pretty issue “was ment” OF ASSETS The PRT loose”. found that while the evi- attempted perjury dence of subornation A. convincing, clear Eakin’s was not con- ATTEMPTED SUBORNATION duct, facts, together taken with all of the OF PERJURY highly that he in a shows acted manner. charged giving Eakin with tacit The OBA OBA, encouragement heavy in re- noting Eakin’s reliance on overt

sponse perjury Hathaway’s exculpatory testimony threats on to her to commit this clear-and-convincing-evidence parte judge stan- dent made ex with a 27. For the communications 21; Braswell, dard, Bar, case); Heavey criminal in a 406, 409, supra note 21 at 1232. Cal.Rptr. Cal.3d (Cal.1976) (respondent communicat disciplinary bar cases 28. See in connection action); parte judge ed ex with in a civil parte involving improper ex communications Mason, (Fla.1976) Florida Bar v. 334 So.2d 1 judge lawyer a case with a about the merits of (respondent parte made communications LaCava, assigned 615 to the trier—Matter of case); Hasler, appellate judge a civil In re an 93, (Ind.1993) (respondent communi N.E.2d 96 (Mo.1969) (respondent 447 S.W.2d 65 com parte with a of a medical mal cated ex member parte judge with a in a criminal municated panel considering acts of his review matter). client); Riley, Matter 142 Ariz. of (1984) (respondent communicated ex 701 (d), Burrows, parte judge); 29.For terms of a In re Conduct of (1981) (respon supra note 2. 826 291 Or. (the point perjury charge), subornation of sufficiency When the of the evi challenged, dence is disregard any this court to the test is whether statements prima facie case has been made out.33 We hearing. she made at the PRT say cannot that on. this notion, record the OBA the OBA directs us established clear and evidence PRT’s conclusion that she “was difficult to guilty that Eakin was of encouraging or in testimony, believe in her whether it favored ducing Hathaway perjury.. to commit Re (b) Hathaway’s or Eakin” [OBA] spondent’s observation that no one in the testimony daily prescription about her use of county prosecuted perjury had ever been drugs past years, for the two her confine- hearings committed in small claims assets “get ment a mental institution to dried clearly attempted does not rise to the level of out,” drug day her use of the Halcion on the perjury. subornation of We hold that insofar hearing, drug’s before the PRT effect on attempted show, as the OBA as an ele that, memory her short-term and the fact count, proof ment of in support single of a though even drugs day, she had taken may that Eakin guilty attempt have been experiencing she was symptoms withdrawal subornation, perjury by ed the evidence falls hearing. at the elear-and-convincing short of the standard of proof showing that he had concrete knowl § The terms of 21 O.S.1991 504 edge of accomplice or acted as an in Hatha procures are: “Whoever another to commit way’s unlawful scheme to obstruct execution perjury guilty perjury by is subornation. securing adjudicated satisfaction of her any Whoever specific does act with the intent liability. disregard Hathaway’s Even if we perjury by to commit subornation but testimony, proof fails favorable the other in the complete guilty attempt is up case does not offense measure to the mandated perjury by ed (Emphasis subornation.” add clear-and-convincing-evidence standard.34 ed.) attempted perjury by The offense of

subornation made is out whenever the ac B. instigates procures cused agreement prospective testify falsely.30 of a witness to CONCEALMENT OF ASSETS necessary It ais element of the crime that person both the accused and the to be sub perjury threats commit testimony sought orned knew that the to be open well as to close her own and a bank false, elicited was material and would used be name, urges, account in another’s prospective litigation.31 in actual or pend part of a scheme to secrete assets from her ing potentially pending legal proceeding argues creditors. The OBA re- required not a element of to establish (relat- spondent's knowledge these threats attempted commission of subornation of him), ing pending ato contested case before perjury.32 unnecessary It is that the show silence, very combined with his violates the person testify falsely suborned did or indeed expressed essence of the standards in 5 O.S. testify lawyer § 2 did at all. that a “will do no falsehood State, Okl.Cr., Torcia, Wharton’s Criminal Law, § 30. Cantrell 970- E. (4th 607 at 330 licensee, (1985) (Cantrell, Supp.1993). legal ed. 1981 and [Cantrell I] attempted was convicted of the crime of suborna I, 970-971; supra Riley, 31. Cantrell note 30 at perjury given two-and-a-half-year tion of 1173; supra supra note 30 at note Wharton's, sentence). suspended He was disbarred follow § 30 at 607. (State ing his conviction of this crime Okla homa ex rel. Oklahoma Bar Association v. Can trell, Okl., I, 970-971; Whar- supra 32. Cantrell note 30 II]) (1987) 734 P.2d 1292 [Cantrell § supra note 30 at 607. ton’s, gubernatorial later reinstated after (Matter Cantrell, Okl., pardon Reinstatement I, supra 33. Cantrell note 30 at 970. III]). [Cantrell 785 P.2d 312 See also States, 21; Braswell, Riley supra v. United 647 A.2d 34. Rule note (Ferren, J., concurring); (D.C.App.1994) Charles 21 at 1232. perjury or encourage Hathaway to commit any consent that be done in court.”35 to or added.) OBA, According (Emphasis judgment cred- to conceal assets from the (if gave Hathaway passive respondent not itors in the small claims. overt) encouragement to conceal her assets by failing deter unlawful conduct. to intended V fact, opines, In the OBA Eakin continued the request hearing Hathaway’s on assets at AN AP- IS ONE-YEAR SUSPENSION that she move her bank account.

order could notion, RE- PROPRIATE SANCTION FOR support In of this the OBA directs us (to complaint) response the which to Eakin’s MIS- SPONDENT’S PROFESSIONAL deny” wheth- states that “cannot admit or CONDUCT Hathaway told him needed er that she before the evidence adduced change Respon- account. time to bank finding of PRT is insufficient to (or active) encouragement passive of dent’s impo professional delinquency that warrants plan, her concealment-of-assets discipline. challenges argument of sition His urges, constitutes conduct sufficiency than the justice, of evidence rather administration which violative of 8.4(d).36 disciplinary cognizance of Rule Bar. Eakin of the ex rel. Bar Associ relies on State Oklahoma given that Eakin had testified that a v. Sullivan.37 teaches ation Sullivan she her two continuances —once when lawyer, qua practitioner, may not be disci “drugged up” and when the sheriff another judicial office home, plined for conduct while in tape recorder came to her attached telephone complaint her to call the acts of is made to her and instructed unless Di- respondent request a continuance. turpitude, involve some element of moral Hathaway’s testimony, respon- recting (or dishonest) us fraud, or some criminal cond argues granted that he never a continu- dent we is clear Because find that there uct.38 allowing her purpose ance for the proof convincing parte Eakin’s ex points bank transfer her account. He out during with communications gave on that he continuances litigation, dishon course of which constitute Hathaway. just litigants, assets to all the 8.4(c),39 meaning est acts within of Rule subject discipline Eakin stands under this hold that

On we of Sullivan. standards failed clear has to establish OBA complicity in convincing proof respondent’s scheme hide assets

fraudulent in a disci responsibility The court’s On from the reach creditors. plinary proceeding punish inflict not to proof meeting point the falls short of inquire into ment on the but to clear-and-convincing mandated standard of lawyer’s accused fit and test the continued evidence. ness, safeguarding a view to the interest public, legal of the sum, courts and of we hold there is no clear and law profession.40 The of a to show Eakin’s intent circumstances Old., Sullivan, provide perti- § of 5 37. Oklahoma Bar 35. The terms O.S.1991 Ass’n v. 864, 869(1979). part: nent being permitted attorneys "Upon 38. Id. at 869. law, shall, open they counselors at and court, following take the You do solemn- oath: Profession- 39. See the terms Rule Rules of you ly that ... do no falsehood or swear will Conduct, 1, App. supra al court, you if any done in consent be note 2. any you knowledge give know will thereof them, 545-46; court, judges Donnelly, supra some one 40. note 7 at ex rel. Colston, Okl., ...(Emphasis add- may be that it Bar Ass’n v. Okl. reformed 207; Moss, ed.) supra note 13 State ex rel. Old., Harlton, Ass'n v. Okl. Bar Raskin, 8.4(d), supra note 2. note 7 at 267. For the terms Rule (Rule 6)41 imposed in yer’s professional proper discipline are to be this case. misconduct thirty days opinion important searching in for of the date of this solutions Within imperative proceeding pay would accord with the law’s of Eakin the costs of this shall $1,874.70. giving public protection its due from in the amount of legal practitioners.42 com substandard Respondent suspended shall stand from plaint against pressed as a Rule 6 practice period year of law for a of one proceeding. lawyer’s It focuses on the of final; day opinion from the becomes fending past conduct.43 disciplinary prosecution of this shall be costs (1) charged engaging Eakin has been with promptly paid in full precondition as a fraud, dishonesty, involving in acts deceit or respondent’s reinstatement. misrepresentation engaging and in that conduct to the administration of KAUGER, V.C.J., HODGES, and judicial process is in violation of Rule LAVENDER, OPALA, SUMMERS (d). record, As reflected (cid:127) WATT, JJ., concur. markedly departed Eakin was shown to have mandatory from these standards. WILSON, C.J., SIMMS, J., ALMA lawyer’s A license ais certificate part part. in in concur and dissent professional public to deal fitness with the legal practitioner. as a Public in confidence HARGRAVE, J., participating. practitioner proper is essential functioning profession. lawyer’s of the WILSON, Justice, ALMA Chief adversely misconduct reflects on the entire concurring part dissenting part. Bar because it exhibits a laek of commitment portion majority I concur with that of the causes, courts, to the clients’ and to opinion imposes discipline but would other of the Bar. members Eakin’s actions adopt impose PRT’s recommendation to nine imposition discipline. call for the of severe suspension. months’ panel PRT recommended that Eakin be suspended practice from the of law for a nine-month interval. On de novo review of SIMMS, Justice, concurring part the one we count find dissenting in part. complaint amply supported by

Bar’s clear proof,44 however, imposing discipline; record declare I I concur great suspend respondent period conduct to have been would ly prejudicial years day. to the evenhanded administra two and one judicial process public tion of and to the (c) judicial impartiality,

perception of that, totality

conclude based on the of evi focusing intensity respon

dence on the of the grossly entan

dent’s excessive and offensive

glement litigant with one who was then a presided

before the court over which he

judge, suspension from for one

year payment of costs constitutes the (Formal Proceedings system, designed Supreme judicial deter a

41. Rule 6 Before also is Tribunal), Responsibility offending Court and Professional behavior in the future Governing Disciplinary Proceedings, discourage Rules as well as to other members of the 1, App. proceeding 1-A. A Rule 6 Bar from like derelictions. State ex rel. Okl. Bar professional lawyer’s past Arnett, Okl., focuses on the miscon- Ass’n v. Denton, Okl., duct. ex rel. Okl. Bar Ass'n Donnelly, supra note 7 at 547-48. 21; Braswell, supra necessary approach, 44.Rule note 43. This which is to safe protect integrity guard public 21 at 1232. interest and to

Case Details

Case Name: State Ex Rel. Oklahoma Bar Ass'n v. Eakin

Court Name: Supreme Court of Oklahoma

Date Published: Dec 12, 1995

Citation: 914 P.2d 644

Docket Number: OBAD No. 1166, SCBD No. 4022

Court Abbreviation: Okla.