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

STATE of Oklahoma ex rel. OKLAHOMA ASSOCIATION, Complainant,

BAR BUSCH, Respondent.

J. Michael No.

SCBD of Oklahoma.

March

Rehearing Granted for Limited

Purpose Correcting Opinion; Rehearing 7,1996. May

Denied Welch, Counsel,

Allen J. Assistant General Oklahoma Bar City, for Complainant. Sr., Lane,

Tom Sapulpa C. and John D. “Rockey” Boydston, Boydston Reheard, & Eufaula, Respondent.

SUMMERS, Justice: The Oklahoma Bar Association filed a six- count formal complaint against Respondent alleging neglect Michael Busch of client mat- ters, adequately failure to keep the client informed, twice, failure to and inten- tional misrepresentation as to the status of a case, both to the court the client. After Responsibility Professional Tri- bunal recommended in the form of eighteen-month suspension, and that after period suspension Respondent be sub- condition, personal assets of the doctor and against the monitoring for Ms mental ject to has, date, nothing parties on her ten Both to tMs received Deficit Disorder. Attention briefs, year judgment. seeking a two million dollar the have filed urging he Respondent and the Respondent appeal to Bateman told to to allowed continue ruling agreed. and He filed a state court he supervision. and medication However, Appeal. to he Notice of Intent complaint rise to tMs giving All incidents a Petition in Error. did not failed file He handling of Conrne involved tMs, notify and later testified Bateman malpractice claim.1 Re- medical Bateman’s appeal he not to file the that decided because and her spondent filed on of Bateman behalf winning felt chances of were slim. he against the doctor who daughter a lawsuit Respondent In 1990 filed a second lawsuit daugh- daughter. The delivered Bateman’s against Drumright for Bateman Memorial adult, ter, permanent physical suffers now Hospital, alleging negligence part on the allegedly handicaps, caused and mental hospital permittmg doctor to negligence. On November doctor’s hospital hospital privileges. The filed a judgment for default Bateman’s motion summary judgment, wMch was motion for against giving judgment her a granted, was Respondent asked sustained. Bateman dollars. The doc- for ten million doctor in appeal. agreed and filed a He Petition attempt judg- no to set aside the tor made preoccupation Error. due to Ms ment. in case he filed the Petition with another Respondent sent later A few months day a late. In tMs dis- Error letter, stating Respondent that doctor appeal being as out of He missed the time. assets, any personal would not execute on notify Bateman these events. did not any collect from insurance but would instead February, Respondent appeared In Respondent proceeds testified available. Woodson, Judge in in front District investigation led Mm to believe that a brief enforceability to determine and did not the doctor had insurance Judge covenant not to execute. Woodson personal assets. Bateman have substantial specifically questioned as having agree she did against hospital, status the lawsuit response to tMs a letter sent. letter such appeal pend- stated that the was carrier, Ms insurance the doctor wrote to shortly.” “expeet[ed] a decision and he admitting making demand negligence attorney-client During ongoing tMs rela- pay policy limits. The carrier it Bateman, tionsMp testified that he she pay. contact After further refused as to repeatedly refused return calls in coverage no was effect insurer stated that case. secre- the status of her time of the incident. tMs, tary stated that she re- confirmed by Respon- it discovered was later When urged to tell Bateman peatedly had substantial amounts dent that doctor Bateman in the courtroom of its status. was accounts, money in several different bank appeal Woodson when told as wMch was not his home- well as ranch pending. did not know had been She antique of valuable stead and collection inquired she with the Su- until dismissed attempted cars, Respondent to execute office. preme Court Clerk’s personal assets. But the letter July in Respondent testified that June and upheld in a state court having diagnosed Attention 1993 he as being a valid covenant not to execute. Since that time he executing Deficit Disorder. was thus barred Bateman failing alleges and 1.3 complaint alleges Rule 1.1 I of violation of violations Count ruling timely appeal signing agreeing from the favor a letter Rule 1.1 1.3 hospital. alleges to in- V that he failed pursue personal Count assets of doctor. appeal appeal had been dis- alleges form client that the that he failed to Count II misrepre- alleged ruling. alleges VI intentional Count viola- missed. Count court's III district (b) 1.4(a) regarding failing the status of the sentation to a court Rules to inform tions of appeal. Count case. of his decision not IV Bateman medication, has, problem been on and the 1.1 regard violated Rules and 1.3 with to his part, the most resolved itself. He continues (sending actions letter agreeing not to counseling problems to seek other personal judg- execute on assets from the case, life which have from his resulted ment failing handling disorder. that cases) He believes his of rulings the district court’s as to both the Bateman case was a direct result of from executing Bateman on Attention Deficit Disorder. doctor’s As III assets. to Count 1.4(a) (b) Respondent by violated Rule and behalf, psychiatrist His testified on his failing to keep Bateman informed about her stating well that has done since failing explain and in legalities. case implementation regime of a of medi- to Count Respondent As V Rule 1.4 violated general symptom cation. He that the stated 8.4(c) by failing and to inform Bateman that of ADD impulsive and inattentive behavior. appeal against hospital had specific questions by When asked the trial misleading dismissed and her to believe panel, he that ADD does create pending. VI, still Respon- to Count As inability an to tell truth. ADD 3.3(a)(1) 8.4(c) violated dent Rules and impulsive stupid cause behavior making a false statement to Woodson. thought consequences. without to the He panel The trial specifically finding continued that “Lying symp- stated is not a I, Respondent’s III, conduct Counts V and tom of ADD.” disorder, VI were a result of his and “do request At the panel psy- the trial not relate to diagnosis [of his attention deficit submitted, form, chiatrist also written found, however, disorder].” It that Counts proposed program help attorneys in Re- symptoms II and IV do relate to the of his spondent’s step, situation. The panel disorder. The trial concluded that Re- critical, steady most is to maintain a course spondent disciplined should be for con- step medication. The second includes sur- I, III, V, VI, duct Counts and that monitoring veillance and professional period after practice Respondent. suggests The doctor guidelines should be to the forth set that someone who does not ADD by his doctor. step oversee his workload. The third in- periods cludes monitoring “flooding.”2 disciplin Court’s review of a During periods, Respondent these would ary proceeding is novo. de State ex rel. need another take over case Kessler, 463, Okla. Bar v. Ass’n 818 P.2d step load. requires Respon- This last (Okla.1991); State rel. Okla. ex Ass’n dent Lawyers continue his involvement with Perkins, (Okla.1988). As Helping Lawyers. The doctor did be- exercising juris court exclusive necessary lieve it to inform diction, it is this Court to review problem. clients of his presented, along the evidence trial history As Respondent’s prior of disci- panel report, to determine whether alle pline, private reprimand received in gations proven by have been clear con respond grievance, 1990for his failure to a Kessler, vincing evidence. at 466. “The neglect in 1992 for censure of a nondelegable, responsibility constitutional matter, client day and a 90 suspension regulate ethics, both practice and the years probation 1993 with neglect licensure, and discipline practitioners a client matter. State ex rel. solely of the law is vested this Court.” Busch, (Okla.1993). Ass’n v. 853 P.2d 194 ex State rel. Okla. Bar Ass’n v. Downing, 804 panel trial determined that 1120, 1122-23 (Okla.1990). P.2d dent’s conduct violated the Rules Profes- sional Specifically, panel Conduct. pan asserts that the trial I, found: As to Counts II and IV el erred in imposition discipline by its Flooding neurologic phenom- despite described medication extra effort. focus, person enon in which a with ADD cannot partic the Ameri- S.Ct. at 2856-57. Federal courts the mandates of failing to follow (ADA). chary ularly relationship Act See of intrusion cans with Disabilities seq. § asserts that as 12101 et He U.S.C. the state and those seek license between who disability recognized under awith individual Tang Appellate in its courts.” ADA3, to a “reasonable he is entitled Court, York Division New disability, for his accommodation” (2nd 138, 143 Cir.1973), denied, 487 F.2d cert. imposition punishment is panel’s the trial 40 L.Ed.2d 111 accommodation.” not a “reasonable (1974). Association rebuts the Americans Prior enactment First, the Bar with several assertions. claim Act, traditionally courts with Disabilities held urges impairment is not an excuse prevent attorney did not that mental illness attorney charge of misconduct. to a defense importance of the of discipline. Because jurisdictions, Bar Citing cases from other bar, maintaining integrity of the courts is be- discipline not foreclosed asserts discipline regardless necessary held that product of men- cause the misconduct was men- of the reason unfitness. Second, illness. the Bar claims that tal infirmity might mitigation. tal be a basis for disciplinary pro- to apply ADA does not Bar Hoover, 192, 155 Ariz. ceedings. Finally, the asserts that even See Matter Bar (1987) (manic preclude apply depression ADA it does not not a com- if the does 939 specifically discipline, panel the trial because factor plete to but was a to counts in the found that four of six deciding punishment); consider when to complaint not attributable were (R.I.1987) Gonnella, 526 A.2d 1279 Carter v. disorder. dent’s prevent (bipolar disorder did not bar disci- Hein, 297, pline); Matter 104 N.J. 516 impression, of first and one This is issue (1986) (alcoholism de- A.2d 1105 Bar Asso great concern to To Historically, discipline). to bar hold otherwise state fense ciation this Court. power public’s have vested with would erode the confidence courts Hein, qualification re sympathy determine the standards at The felt for bar. practice quired seeking for those law. illnesses not extend those with mental does Examiners, v. 353 Schware Board lowering point “to barriers (1957). 232, 752, 1 77 L.Ed.2d 796 U.S. attempted give to protection we protect public, states “have broad To clients, espe- portion who are standards for power establish money to cially clients who entrust their practice of practitioners regulating lawyers.” Id. Virginia professions.” v. State Goldfarb Act, Americans with Disabilities enact- The 792, 2004, 2016, 773, 421 U.S. 95 S.Ct. 1990, oppor- goal “equality of ed states as its (1975). Furthermore, L.Ed.2d living, tunity, participation, independent full and substantial in state has constitutional self-sufficiency” for disabled and economic determining an individual terest whether 12101(a)(8). § It has U.S.C. individuals. practice Application fit to law. of Grif mandate to been described as a “nationwide 717, 722-23, fiths, 413 93 S.Ct. provide accommodations dis- (1973). reasonable 2855-56, inter 37 L.Ed.2d 910 Bubenstein, persons.” Petition abled gage freedom on a case- includes the est (Del.1994) quoting Morris- A.2d by-case the fitness of individuals seek basis sey, at The Americans With Disabilities Act: Griffiths, law. tion, organic syndrome, or emotional men- brain 3. We note that Association does illness, dispute recognized learning disorder is specific disabilities.” tal conducting indepen- our under the ADA. After psychiatrist Respondent's that ADD is a research, "disability” "a the ADAdefines dent disorder, recognized neurological and is substantially impairment physical or mental also Diagnostic and Manual. He stat- Statistical major life limits one or more activities ed that it fall within the Americans § ...” 28 35.104 inter- such individual C.F.R. Act in the Individu- Disabilities and is mentioned “[a]ny prets or this definition include mental of 1979. als with Disabilities Education Act psychological as mental retarda- disorder such Disabling upon The the Bar Examination Pro- Two states have been called to rec- cess, Examiner, May oncile the bar association in monitoring disciplining its members Subehapter to this Relevant ease II with the mandate of the ADA The Florida “public the ADA deals with entities.” Court, Clement, Supreme Florida § seq. entity’ U.S.C. et “Public (Fla.1995), 662 So.2d 690 addressed the issue “any govern to include defined State local attorney suffering when an who was “any department, agency, special ment” and (manic bipolar depression) disorder was ac- purpose district instrumentality or other aof cused disciplinary of ethical violations. The government.” Id. State or States or local disbarment, referee recommended but interpreted in This definition has been disputed recommendation, attorney urg- courts, many clude instrumentalities ing that it violated the ADA The Florida Examiners, judicial such as Boards of Bar Court disbarred the al- commissions, nominating disciplinary though recognized by his sickness was one 1136; committees. Doe the ADA. Nominating Judicial Commission Florida, Judicial Circuit held that “the does not Fifteenth (Fla.1995); F.Supp. 1534 In the Matter sanctioning this Court from [an at- (Cal.Bar Wolfgram, 1995 W.L. 506002 torney].” holding Id. at 700. This Ct.1995). In public Section First, entities grounds. based on two the conduct prohibited (misuse are from discrimination on the complained of misappropriation funds) a disability. basis of causally of client was not connected to Second, his mental illness. even if the con- urges The Bar is Association the ADA causally duct has been related: inapplicable general the association necessarily ADA would [T]he bar this specifically, Responsi more the Professional imposing Court ... sanctions “A bility argument Tribunal. The basis this from person ‘qualified’ ais individual with a “employ is that the Association is not an disability respect with if he or attorneys. er” of the ADA has she, with or without reasonable modifica- subchapters. three The deals with em tions, requirements.’ ‘meets the essential ployers, public the second with entities and requires case-by-case analysis a the third with accommodation. It is person jobs disabled benefits he subehapter public the second entities— — or she seeks. Id. at 687. Clement is not which is involved Wolfgram, here. Matter of “qualified” to be a (Cal.Bar member Ct.1995) (the 1995 W.L. 506002 misconduct, because he committed serious subject II, is Subchapter State Bar pos- and no “reasonable modifications” ADA). “public section, entities” Clear Thus, applies sible ... while ADA ly, applies to the OHahoma Bar Bar, it does not this Court an arm Tweedy of this Court. taking disciplinary action Ass’n, (Okla Oklahoma Bar P.2d from (citations omitted) Clement.” .1981). Id. at 700. parties dispute Because do not that the Respondent’s disability Likewise, within pur- falls Wolfgram, Matter ADA, (Cal.Bar Ct.1995), view of the and because the OHahoma W.L. ADA, Bar Association is judge attorney we forced inactive status next decide impact what this Act on because he was unable to law with Respondent’s disciplinary proceeding. Thus out harm substantial or threat to his clients. far, issues pri- attorney raised the ADA depres suffered from severe marily centered in bar attorney two areas: admissions sion. The that the ADA asserted disciplinary proceedings. prohibited involuntary While we are inactive status. obviously concerned with its effect in disci- The California Bar Court relied on federal plinary proceedings, disregard we should not court decisions which have held “disabil reasoning application used the bar ities prevented qualified which an otherwise cases. employee meeting require the essential passing protec after the examination. The deni job bar entitled ments of were history health Citing al was based on mental Id. at 7. under ADA.” tions Centers, Inc., problems prolonged included with Educ. Tyndall v. National Cir.1994) (teacher’s (4th drug addiction and other mental disorders. 212-14 F.3d carrying out court held that denial admission prevented her from disability the ADA. proper accom and did not violate job with extensive her functions even modations); Reigel v. Kaiser Foundations II, protected class limit Under Title (E.D.N.C.1994) Plan, F.Supp. Health ‘qualified individuals with disabili ed un injury (physician’s shoulder rendered By ty.’ protecting ‘qualified individuals diagnosis) patient perform essential able to (and disability not all individuals with Corp., Vision and Larkins CIBA disabilities), expressly the ADA rec with (N.D.Ga.1994) (panic attacks F.Supp. eases, that, ognizes in some an individual representative from prevented a customer may unqualified by dis be reason functions). job The Bar performing essential ability enough qualified ... [I]t attorney should agreed that disability; right inquiry is for’ a ‘the ‘but regardless of his placed on inactive status satisfy person pro can whether disability.4 gram’s requirements despite handicap.’ slightly A different result has occurred (citations omitted).5 at 5 Id. than issue admission rather when the is bar dealing attorney disci- From the cases with discipline. have fo- These attacks admission, dealing those pline well as questions on the on either the asked cused responsibil- still the ultimate we see that process the examination application or on pro- ity of the Bar Association to 637 A.2d itself. Petition of integrity and to insure tect the (Del.1994), applicant suffered Bar by in the the the continued confidence kept pass- learning disability which her Concededly, responsibility also public. this petition requesting filed a ing the bar. She duty as includes to follow federal laws the portions of the exam. extra time take both they applicable to the state. become granted The Board Bar Examiners it as portion as to but denied request clearly applies the The ADA Oklahoma sought relief from the Dela- the other. She an of this Bar as arm Court. Supreme held that ware Court. Court seewe no “rea- unlike disability which meets once a is established can be made sonable accommodation” ADA, public entity criteria neglect of regard client with accommodations make reasonable in ac- matters deceit court which would person. As an instru- facilitate disabled maintaining in- complish purpose court, mentality of the Board promoting public’s tegrity the “reasonable Examiners many attorneys. in the state’s confidence standard Ex- accommodation” duty in has a constitutional over- This Court taking examination tra time seeing its Bar to insure that members a reasonable accommodation. was considered Griffiths, practice. Application fit to McCready v. Illinois Board Admis 722-24, at 2855-56. 413 U.S. at S.Ct. (N.D.Ill. 1995 W.L. 29609 sions to As the 1995), alleged Our case is closer to Clement. applicant an violations stated, the ADA does Supreme the Florida ADA when was denied admission involving application to the 5. For other cases Colorado Court has been called Virginia an upon to decide whether the fact that see Clark boards of bar examiners neurosis, illness, termed Examiners, had a mental success F.Supp. Board of mitigating be as circum- could stance. The considered Kansas, (E.D.Va.1995); Johnson v. State of attorney did not the Americans raise (D.Kan.1995); Campbell F.Supp. v. Greis held that the With Disabilities Act. The Court (W.D.N.Y.1994). berger, F.Supp. 115 finding not that it was estab- board’s upheld could be and that the neurosis lished need not People mitigation. be as considered Goldstein, (Colo.1994). attorneys yers Helping Lawyers. disagreement with If holding arises, plan disabilities. This Lawyers Helping Lawyers consistent prior Supreme Griffiths, immediately Court law. See 413 shall contact office 2856-57; Goldfarb, at at U.S. for the General Counsel Asso- at It 95 S.Ct. 2015-2016. ciation. We also find that undisputed pursue failed to be, hereby, should assessed costs in appeal in the ease and failed to $2,272.54 totalling paid this matter to be timely petition file in error in the second. thirty days opinion within of the date this find the We evidence be clear and convinc- becomes final. Respondent agreed —without permission knowledge pursue chent’s KAUGER, V.C.J., HODGES, —to judgment only against the ten million dollar HARGRAVE, JJ., LAVENDER and concur.

the doctor’s insurance rather than WILSON, C.J., participating. similarly the doctor’s assets. We find that he told Woodson that an ALA, Justice, OP with whom SIMMS and opinion soon, appeal expected WATT, JJ., join, concurring part when, fact, knew dissenting part. untimely. had been dismissed as I concur in respon- the court’s view that mitigation As that Respondent we find professional discipline dent breached suffering Disorder, from Attention Deficit pose legal that the A.D.A. impedi- illness, being that he is now treated for this sanctions; imposition ment to I dissent imposition and take into account in the today’s suspension. I would order re- discipline. our alsoWe note that spondent’s disbarment. Lawyers dent has Helping worked with Law- yers because of illness. shirking would

We our as the

guardians per- of the state’s bar were we discipline.

mit to avoid Such surely

would erode confidence

bar. client testified that due to Respondent’s gratuitous letter she re- SALAZAR, Appellant, Maximo Lee compensation no daughter’s ceived for her injuries spite of the fact that she obtained judgment. a ten million dollar findWe no Oklahoma, Appellee. STATE of excuse for deceitful behavior in a court of this No. neglectful state. While F-94-1276. his may behavior his influenced Appeals Court of Criminal of Oklahoma. ADD, physician lying testified that is not result direct of the illness. Because we June 1996. find that the Bar proven by Association has Rehearing Aug. Denied clear convincing evidence all counts as alleged in complaint, agree we that disci-

pline necessary.

Taking neurological deficit, now under

control, mitigation, account hereby suspended

dent is from the years

of law two day. After

completion if practice,

resumes shall be guidelines set forth Dr. Dodson August 1,

letter plan shall

include involvement with Law-

Case Details

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

Court Name: Supreme Court of Oklahoma

Date Published: Mar 12, 1996

Citation: 919 P.2d 1114

Docket Number: SCBD 4068

Court Abbreviation: Okla.