*1 opinion is VACAT- Appeals The Court perma- denying
ED, judge’s order the trial and the disability is VACATED partial
nent judge to the trial is REMANDED
matter the views consistent with proceedings
expressed herein.16 V.C.J.,
HARGRAVE, C.J., OPALA, DOOLIN, HODGES, SIMMS, SUMMERS, JJ., concur.
KAUGER J., WILSON, concurs
ALMA
specially. WILSON, Justice, concurring
ALMA
specially: remanded to agree
I this case should be litigants opportu- court to allow
the trial
nity additional medical evidence to offer Manor, permitted Heritage v.
we Wheat (Okla.1989).
STATE ASSOCIATION, BAR
HOMA
Complainant, LLOYD, Respondent. R.
James No. 830.
OBAD No. 3455.
SCBD of Oklahoma.
Supreme Court
Feb. although before us as claim- Appeals, for a differ- examiner. This issue is not Court of 16. reason, challenge ruling judge the Court of trial ant failed to upheld the decision of the ent Appeals by petition independent his own for Certiorari. refusing appoint an *2 Tulsa, Boydston, respondent. D.
John OPALA, Vice Chief Justice. lawyer for proceeding against In this a imposition professional discipline the is- sues are: [1] Did the evidence establish respondent attempted to deceive slip- adjuster offering to by claims settle informing him case without first and-fall summary judgment already been given to the insured party? [2] Did respon- duty explain time of dent have a at the voluntary production some why fully comply not records did with pretrial discovery request? the opponent’s and [3] If what so, proper measure of visited, bearing mind that discipline to be in pretrial discovery the context provide a Code1 did not then-effective speak? We defined standard of negative first question answer affirmative, and in the and then the second third, responding to we conclude that a public appropriate reprimand is the sanc- tion. Lloyd [Lloyd], a law-
James R. licensed charged complainant, yer, by Okla- [Bar], two acts homa Bar Association with professional claimed to war- misconduct disciplinary sanction. The Bar rant “Pro- then entered into written posed Stipulations of Fact Conclusions Agreed with Recommendation Law adopted by panel Discipline,” were Responsibility of the Professional Tribunal approve This court declined [PRT]. discipline i.e., public then recommended — reprimand and assessment of costs—and complaint for a full eviden- remanded tiary hearing panel the PRT whence hearing, it After post-remand came. unsup- panel complaint dismissed the ported convincing clear evidence. Episode under review episodes The misconduct Murdock, Counsel, during Lloyd’s representation John E. Gen. occurred Dan Counsel, slip-and-fall Opposing Oklahoma client in a case. Douglas, Asst. Gen. Ass’n, complainant. sought City, for counsel on two occasions to obtain Bar provisions super- sibility pertinent which have now been [the Code] note 8 for 1. See infra Rules, Respon- seded the Model note 17. Code of Professional the then-effective infra Opposing sought rela- counsel client’s medical records sanctions copies of the against Lloyd failing 10-year and those for a for misconduct injury tive to the episode. pages that harmful disclose that he had removed two period preceding next attempt- May produced on 1986 with a from the records and Lloyd was served *3 adjuster by ing the records and then on to mislead the claims with- motion to hearing holding deposition notice of a vital information about the unfa- June 3 with summary judgment held 10. He had until June vorable outcome of the to be June request2 process. Lloyd’s charge initial this respond object to the defense to to request portions pages later for the July and until to the was that two excised deposition proceeding. “irrelevant” and production at the were both inadmissible Lloyd agreed opponent “hearsay.”5 let his have the The trial court declined to requested impose Lloyd, concluding materials on June 9. Before sanctions on they picked up, he discovered that the code afforded no basis for were damaging pages potentially imposition. two contained their and withheld Lloyd statements.4 removed materials. pages
those from the delivered I hearing following day the deposition At the opposing counsel that the records he told LLOYD’S RESPONSE “incomplete” and then handed him a were During disciplinary proceedings the bar 30, release authorization. On medical June Lloyd offered additional reasons for his statutory deposition the days three pages actions. He had withheld the material production of the deadline during “buy” order to more time which he discovered, opposing counsel sought to be his client was in could determine whether Lloyd knowledge of the confronted with harm occurred. fact inebriated when the pages’ damaging content. excised subjecting concerned He was about himself, client, as as to sanctions for well
Episode 2
Conceding
filing an unwarranted lawsuit.
litigation
have withheld all the records
On several occasions after the
should
determination,
instituted, Lloyd contacted the
until after he made this
had been
voluntarily
pro-
ongoing
Lloyd
stated his decision
adjuster
claims
in an
effort
records was a
following
The afternoon
duce some of the medical
settle the lawsuit.
giv-
the short notice
summary judgment’s
“knee-jerk”
rendition for the ad-
reaction to
Because he still had
party, Lloyd again
deposition.
talked to the ad-
en for the
verse
statutory 30-day
attempted
compro-
days
secure a
three'
left of the
juster and
options on behalf
judg- period
to exercise other
mise. He made no mention
client,
sought protective
the insured defendant
of his
he had not
ment
favor of
confronted
brought
opposing
when
counsel
adjuster
until the claims
himself
order
missing
him
content of
up
subject.
adjuster
He told the
on June 30 with
charge
As for the
in the nature of a
the medical records.
ruling
the court’s
—one
adjuster, Lloyd ex-
involving the claims
easily vacated.
default —could be
3211(B)
following
notations were
O.S.Supp.1982
4. handwritten
§
2. See 12
[renumbered
Okl.Sess.L.1989,
129, 14,
pages:
two excised
3234(B)
made on the
§
Ch.
§as
1, 1989],
Daughter.
[pa-
provides
"History
Pt.
which
that "...
received from
eff. Nov.
y/o
[year
nn
male]
w
old white
request
produce]
is a 47
party, upon
tient]
[to
whom
fell on curb 4
served,
who states that he
alcoholic
response within
shall serve a written
intoxicated)” Page
days ago. (Apparently was
(30) days
thirty
service of the re-
after the
”
Daughter, pt.
"According
has had noth-
1.
quest ....
& is somewhat
to Drink in the last week
Page
shakey.
2.
on Librium.”
Needs refill
3207(c)(5)
O.S.Supp.1981
See 12
§
[renumber-
Okl.Sess.L.1989,
129,
3230(C)(5) by
Ch.
Lloyd,
ed
declining
§as
Although
to sanction
14,
1, 1989],
order,
provides
court,
eff. Nov.
made a
§
in its November
apply
procedures, supra
pages
finding
note
excision
the two
that the
§
request
and had
production
was “unethical"
of documents
the medical records
deceive counsel.”
deposition.
the intent to
party seeking
been done “with
to take a
process
deciding
duty to inform his
alone. In the
legal
this court
plains he
no
case,
and,
so,
in the
if
developments
whether
is warranted
adversary
any
sanction,
summa-
any,
imposed
about the
if
is to
less to
him
be
much
advise
what
misconduct,
ry
appealability.
court will con
judgment’s
professional
of the entire
duct
de novo examination
discovery code as not
perceived the
record.7
any part of
requiring disclosure of
statu-
until the end
records
complaint alleges Lloyd’s
actions vio-
deposition
July
on
tory
deadline
provisions of
1-
mandatory
lated
DR
that,
long
so
of the view
(5)
7-102(A)(l), (2)
He was
102(A)(4)
DR
voluntarily
being
produced
were
materials
Responsibili-
(3),
of Professional
Code
*4
by legis-
during
80-day period provided
the
he
in
ty,8
engaged
that
conduct
law,
the
supply some of
lative
he could
misrepresent mat-
intended to deceive or
and
others. He believed
records
withhold
discovery
well
one
subject
ters
as
as
stage
at
discovery code did not
that
the
prejudicial to the administration
which was
any
duty
on him
further
vis-a-vis
impose
judicial
he took
on behalf
process;
of
action
counsel;
he be-
opposing
neither did
the
merely to
of his client which would serve
the
any responsibility to
lieve he owed
another;
maliciously injure
he
harass or
was
compel
no motion to
court because
a defense that
is unwarranted
advanced
emphasized
it. He
pending
then
law;
existing
knowingly
and he
under
duty
protect his
was to
client
first
he
re-
failed to disclose that which
was
investigating
facts
by
court sanctions
quired
to reveal.
by law
inquiry
case.
If his
were
own
meritless,
would
the suit was
he
reveal
Ill
litiga-
duty-bound to terminate the
then be
tion.6
ALLEGED
CHARGE
DECEPTION-OF-ADJUSTER
II
part
deception-of-adjuster
of
The
OF PROFES-
OF CANONS
VIOLATIONS
is
charge
clearly
is
dismissible. There
SIONAL RESPONSIBILITY
duty
part
fiduciary
advo
no
on
to tell the insurance
proceedings
cate for a claimant
disciplinary
bar
know
merely
adjuster
as a
what the latter should
about
court
not function
does
The record is
clear
reviewing
sits as a licens
the lawsuit.
barren
forum but rather
convincing
epi
to make this
exercising directly its
and
evidence
ing agency
exclusive
disciplinary
a
inf
jurisdiction.
respon
sode a fit foundation for
The ultimate
original
discipline
on
imposition
for
rests
raction.9
sibility
client,
lawyer
expert
representation of
a
Lloyd’s
lawyers
"In his
a
witnesses-—three
each
practice approximately
shall not:
30
whom had been in
suit,
(1)
position,
a
conduct a
File a
assert
lawyer’s
years
his views about
—shared
trial,
defense, delay
on
or take other action
litigation.
during
discovery stage
or
his client when he knows when it
behalf of
that
action
serve mere-
is obvious
such
would
Okl.,
Stubblefield,
766
7. Oklahoma Bar Ass'n v.
ly
maliciously injure another.
to harass or
[1988];
rel. Oklahoma Bar
P.2d
982
State ex
(2) Knowingly
or defense
law,
advance
claim
Okl.,
Cantrell,
Ass’n v.
existing
except
that is unwarranted under
Raskin,
rel.,
[1987];
Bar Ass’n v.
State ex
Okl.
may
or defense if
advance such claim
262, 265-266 [1982].
642 P.2d
argument
supported by good faith
it
be
can
extension, modification,
or reversal
O.S.1981,
1, App.
Ch.
existing law.
102(A)(4)
(5)
and
are:
The terms of DR 1—
(3)
knowingly
or
disclose
Conceal
fail
* *
*
"
not:
"A
(4)
required by
is
[Empha-
which he
law to reveal.
involving dishonesty,
Engage
sis added.]
deceit,
fraud,
misrepresentation.
or
(5) Engage
prejudicial
support
that is
in conduct
Bar’s burden to establish
9. It
* * *”
convincing
proof.
charges
justice.
clear
[Empha-
the administration
6.12(c),
Governing Disciplinary Pro
Rule
Rules
sis added.]
O.S.1981,
(2)
(3)
7-102(A)(l),
ceedings,
App. 1-A. State ex
Ch.
are:
DR
The terms of
proceeding
imposi
instant
IV
tion of
gov
must be viewed as
erned
the ethical norms found in the
IN
ALLEGED DECEPTION
KNOWING-
then-effective Code11 rather
than else
ADMITTEDLY
LY WITHHOLDING
body
where
it
our law. Were
INFORMATION
DISCOVERABLE
sanctions,
quest for
we would look for
decep-
episode urged
The second
—
guidance
to the
code.12 No less
knowingly withholding admittedly
tion
compliance
explained
than
non
full
subject
discoverable information
compliance
lawyer’s
is consistent with a
inspection presents
gravely
different
—
Code-imposed duty
discover
situation.
pre
able
In the context of
information.
litigation procedures,
trial
excision of mate
Discovery is vital to the truth-seek
produc
rial information from records to be
adjudicative proc
mechanism of our
adversary’s inspection
ed for an
is a seri
Any
ess.10
conduct that misleads one’s
professional
ous act of
It is a
misconduct.
adversary in the latter’s search for
patent effrontery to the law’s established
impedes
impairs
truth anterior to trial
goal
fact-finding
for an uncontaminated
integrity
fact-finding pro
of forensic
process.13
purpose
pretrial
dis
*5
pretrial discovery,
cess. All
whether car
covery is to search for the truth to the end
means,
by voluntary
involuntary
ried out
or
legal
dispute may
resolution of the
be
must be treated alike.
Its contamination
upon
rested
full revelations rather than on
partially
facts that are
produces
negative
a like
effect on the law’s
obscured.
lawyer
pursuit of truth. While a
has no
Lloyd
tampering
was
with the dis
to,
facilitate,
actively
duty
give
to
succor
or
covery process
crit
when he removed two
he
truth-seeking quest
opponent,
of an
pages
ical
from the material he offered to
tending
may
by
not undermine it
actions
to produce. His misconduct consists of fail
adversary
mislead. In the conduct
our
disclose,
opponent’s
to
his
own
of
before
process
stage
no
li
litigation
discovery, that he had removed and with
affords
misleading
cense
an advocate’s use
damaging parts.
held the
His conduct
for
of
impede
legit
to
thwart the
mislead,
tactics
clearly
designed
if
in
was
to
not
foe’s
pursuits.
Lloyd
imate
deed to deceive as well.
is not exon
by
length
erated
the fact the
full
of
Misleading litigation
can
producing
statutory 30-day period for
justified
ground
not
on the
that there is
be
requested
yet
medical records had not
prohibits
no articulated code norm that
it.
opponent
come to an end when his
discover
voluntary
Discovery production, both
part
the material had
excised.
ed
of
been
court-mandated,
by
governed
is
the same
produced
He should have either
all
ethical norms that are found
the law’s
a proper
discoverable documents or made
duty
proper
general
objection
delivery.
conduct vis-a-vis
to avoid their
He was
he was
opponent.
duty-bound
only
not
to reveal
one’s
1295,
Okl.,
Braswell,
Change,
L.Rev.
1298
rel.
Bar Ass’n v.
663
for
31 Vanderbilt
Oklahoma
1228,
1232 n. 7 [1983].
[1978].
351,
Chamberlain,
v.
35 Ill.2d
221
10. In Monier
supra
11. See
note 8.
410,
[1966],
aptly
417
the court
noted
N.E.2d
overriding purpose
discovery
is noth
that the
ing
seq.
12
et
§§
[renumbered
O.S.1981
3201
promote
less than to
"the ascertainment of
seq. by
O.S.Supp.1989
Okl.Sess.L.
12
3224 et
§§
disposition
the truth and ultimate
of the lawsuit
14,
1,
1989,
129,
eff. Nov.
See also
§
1989].
Ch.
The Court
in accordance therewith...."
150,
[Minn.App.
Higgins Lufi,
N.W.2d
155
v.
353
Co.,
U.S.
United States v. Procter & Gamble
1984],
involving imposition of sanctions
a case
677, 682,
983, 986,
[1958],
I would for three months.
practice of law Justice, WILSON, dissenting. ALMA Zorn, City, peti- Daniel K. Oklahoma tioner. adopt I the PRT’s recommendation would complaint be dismissed.
that the White, City, Miller Gloria
complainant.
SUMMERS, Justice. application This is an for reinstatement attorney resigned pending disci- of an who joins Bar plinary action. The Association attorney’s request that he be rein- membership in the Bar. The Pro- stated to In the Matter of the Reinstatement Responsibility Tribunal recom- fessional CLIFTON, Stephen to Member- Ferrell attorney mended that the be reinstated to ship Bar Association in the Oklahoma practice taking law without the Bar exami- Attorneys. and to the Roll of petitioner nation.1 We find that the should be so reinstated. SCBD No. 3607. Stephen Ferrell Clifton was admitted to of Oklahoma.
Supreme Court In April the Bar in of 1977. 1980 he re- signed pending disciplinary proceeding 13, 1990. Feb.
arising of a out of his use client’s funds (5) pay gambling debt. More than five years following resignation he filed an application pursuant reinstatement to 5 1-A, 11.1, App. Rule O.S.1981 Ch. (Matter was denied this court. Rein- # Clifton, SCBD statement of 14, 1988). pro- O.B.J. June ceeding objected the Bar Association Clifton's reinstatement. present proceeding position
In the explained by the Bar Association was coun- *8 sel. investigated Mr. again
“We have Clifton year particularly with the view to- part wards the areas of concern on the the Trial Panel after the last reinstate- hearing. ment have We discovered apparent problems tax re- have been history pay- solved. Mr. has a Clifton timely payments in a manner the government, the federal the loan that pay was taken re- the Oklahoma tax turn has re- been—that loan has been paid. copy We have a of Mr. Clifton’s years Responsibility applicant Tribunal di- ed his view that after five 1. The Professional without tak- in favor of readmission vided 2-1 ing should have to take the exam. dissenting member stat- Bar exam. notes (Fair- specific. clearer and more See Rule 3.4 exhibit, right to the he had a to refuse Counsel) Party pro- Opposing and ness to producing that was "he had to disclose vides: documents, give and to his less than all the lawyer “A shall not: Otherwise, misleading opposing he was reason. ” (a) unlawfully party’s another access obstruct parties and [Emphasis the court. Mal- added.] alter, unlawfully destroy of to evidence or engages loy lawyer mislead- holds who in that having or other material conceal document charged against ing conduct of the character evidentiary potential value. A disciplinary cognizance Lloyd subject is to of any person counsel or assist another to do not the bar. act; such rel. Bar Ass'n v. Hens 15. See State ex Oklahoma 527, n (cid:127)k
Notes
[*] k
[*] k Malloy, ley, P.2d 530 [1983]. (d) pretrial procedure make a in ... to fail respondent-lawyer supra note the also 14 at reasonably diligent comply to awith effort by explaining sought to shield his conduct oppos- legally discovery request proper an would have disclosure of the excised material * * *” added.] [Emphasis ing party; Declining perjurer. to his to be a shown accept client "[f]air The Comment to Rule 3.4 states that explanation, quoted this the court adversary competition system the is secured in McCullough, Utah In re by prohibitions against evi- ... concealment of [1939]: dence, discovery proce- ... tactics in obstructive " claim, urged, privilege because ‘The now of dure, and It further notes the like.” attorney-client relationship, be avail- the of evidence are and other items of "[d]ocuments question at the able must be asserted calling the time establish claim or defense. often essential to asked; the wit- such is information right Subject evidentiary privileges, an of nothing pretend to ness cannot withhold through opposing party ... to obtain evidence facts, then, claim that when confronted with discovery proce- subpoena important an or is they were withheld because of a confidential right.” dural might Although relationship. conduct such 3.4(d) counterpart Code. See Rule has no in the yet support charge contempt, it is not Maute, A Practitioner's Guide to the as, attorney, disre- in an shows such conduct spect 276; [1988], p. Conduct Rules Professional respect for the court and lack of Conduct, Pro- Model Professional ABA Rules of oath, attorney’s unprofession- and is therefore 1988], [May p. rule posed 136. The Final Draft ” [Emphasis added.] conduct.’ al Rules general duties restates established (not stratagems litiga- legal employ frivolous of either 3.1 tion) Constructive fraud —a breach tactics) (not dilatory engage necessarily equitable duty 3.2 not involve —does import discovery. dishonesty pretrial in the context of or actual an intent to deceive 3.4(d) duties run not Faulkenberry City Rule stresses that these purpose. Southern Kansas were to arise under the provisions the same scenario incident Measuring the force, Rules, find then in we standards Model a more severe of ethical convincing proof18 of clear and an absence doubtless be warranted for the cor- would by a re- was motivated bad-faith that he ruption truth-seeking search in the of the ex- the existence solve to conceal process adjudication. forensic required for beyond the date cised material novelty question Given The record nonetheless production. its presented, purpose today our is to establish impression plainly clear us with a leaves — principle guide lawyers’ that will future testimony from the apparent —that ample warning and serve as an conduct full disclosure offered less than recurrence of like dereliction.22 against material delivered. incompleteness of the publicly reprimanded Lloyd shall stand long pro- Lloyd waited too Regrettably, actions; proceeding— costs of this and bear all explanation for his vide then $1,599.46 already misleading conduct was be remitted within —which he must now be held known; accountable thirty days opinion final. after becomes quo. the locus in at for his dereliction PUBLICLY REPRI- RESPONDENT IS the then-effective Code19 Because MANDED AND DIRECTED TO REMIT specific in the condemnation not as COSTS. present Model as the charged misconduct unsettled, meaning stood Rules20 and its HARGRAVE, V.C.J., and imposition of a lenient sanc- opt we for the DOOLIN, LAVENDER, KAUGER and reprimand.21 To- public tion the form SUMMERS, JJ., concur. not be mistaken for day’s decision should strictly HODGES, unwillingness to enforce and ALMA our SIMMS stringent JJ., more greatly WILSON, far-more-clear dissent. imposable by norms now Justice,- HODGES, dissenting. reluctance to Rules nor for our the Model recommendation adopt I would the PRT’s dishonesty into a guard against infusion discovery. complaint If be dismissed. pretrial process of voluntary Maute, Theory Sporting Supra opposing parties and note 17. See only but to to the tribunal