*1 employment city contracts a should have employees-if approved by
with its the Peo-
ple.
118 One of the controversy ironies municipality it,
is that a claiming in an capacity,
administrative authority, has expressed
exclusion of the People, will of the municipality
to determine if the should create bargaining contracts,
collective employment contemporaneous
with the expec- creation of (or Process)
tation Due interests. In other
words, city should, claims that it as an matter,
administrative determine to what ex-
tent rights constitutional are created its
contracts, People and the should not have the
ability to vote on this issue. must conclude People possess do an interest
determining policy general and the na- city
ture of how a contracts with employ- its
ees, and whether constitutionally protected
property liberty thereby interests are
created. I would thus issue mandamus and
require proceed the clerk to without invali-
dating petition by reason of its substance.
STATE of Oklahoma ex rel. OKLAHOMA ASSOCIATION,
BAR Complainant, GROSHON, Jr., Respondent.
Robert F.
No. SCBD4663.
Supreme Court of Oklahoma.
Dec. *2 Farabow, Loraine Dillinder Assistant Gen- Counsel,
eral Oklahoma Association, Bar OK, City, Complainant. for Groshon, Jr., Robert F. pro se, Oklahoma OK, City, Respondent. *3 OPALA,V.C.J.
T1 In this disciplinary proceeding against lawyer, a (1) the issues to be decided are: Does the record submitted for our examina provide tion sufficient evidence for a mean ingful de novo consideration of complaint the and of disposition? its public a Is payment censure and the of costs associated with this proceeding an appropriate disciplin ary sanction pro breach of fessional discipline? We ques answer both tions in the affirmative.
I.
INTRODUCTION TO THE RECORD
(OBA)
The Oklahoma Bar Association
charged
Groshon,
(Groshon
Robert F.
Jr.
or
respondent),
a licensed
lawyer,
with three
counts of
misconduct
by filing a formal complaint
in accordance
provisions
the
of Rule
Rules Govern
ing Disciplinary
(RGDP).2
Proceedings
complaint alleges in three counts Groshon's
violation of the RGDP and the Oklahoma
(ORPC)3.
Rules of Professional Conduct
The Bar
1.1,4
rests its counts on ORPC Rules
1.7(b)(2)5 1.8(b),62.1,7 8.4(a)
(d),8
1. The
hearing's
record consists of the PRT
"(b)
tran-
A
shall not
a client
lawyer
if the
represent
script,
report,
representation
parties' stipulations
the PRT
may
the
materially
of that client
law,
by
lawyer's
limited
responsibilities
fact
the
mitigating
conclusions of
the
to another
fac-
person,
by
client or to a third
or
conjunction
tors to be considered in
with the
interests,
own
unless
the client consents after
charges,
by
parties
the exhibits offered
and a
representation
consultation.
multiple
When
joint
parties
support
brief of the
of the PRT
undertaken,
single
clients in a
matter is
the con-
report and recommendation.
explanation
sultation
implica-
shall include
representation
tions of the common
and the ad-
2. The
of RGDP Rule
provisions
6.1,
0.$.2001,
vantages and risks involved."
1-A,
App.
pertinent
Ch.
part:
state in
proceeding
''The
by
shall
be initiated
a
1.8(b)
formal
6. The
terms of ORPC
Rule
provide:
complaint prepared
Counsel,
"b)
lawyer
ap-
the General
A
shall not
relating
use information
Commission,
proved by
signed
representation
disadvantage
of a client
the chair-
Commission,
of the client
man or
unless the client
vice-chairman of the
consents after con-
sultation, except
permitted
required by
filed
or
Supreme
with the Chief Justice of the
Court.
s
Rule 1.6 or Rule 3.3."
provisions
7. The
of ORPC Rule 2.1 state:
50.$.2001
App.
Ch.
3-A.
client,
representing
lawyer
"In
shall exercise
independent professional
judgment and render
4. The
provide:
terms of ORPC Rule 1.1
"A law-
advice,
rendering
candid
lawyer
advice.
yer
provide competent representation
shall
to a
may
only
refer not
to law but to other consider-
Competent
representation
client.
requires
moral,
ations such as
economic,
social and politi-
skill,
legal knowledge,
thoroughness,
prepa-
factors,
cal
be relevant
to the client's
reasonably necessary
ration
representa-
for the
situation."
tion."
pertinent provisions
8.4(a)
8. The
of ORPC Rule
1.7(b)(2)
provide:
5. The
of ORPC Rule
provisions
state:
IL.
its reliance
1.3;9 it withdraws
Rule
RGDP
8.4(b).10
Rule
on ORPC
THE COURT
BEFORE
THE RECORD
EVI
SUFFICIENT
PROVIDES
Responsibility Tribu-
The Professional
T3
DE
MEANINGFUL
FOR A
DENCE
2008 to
(PRT)
24 June
held
nal
OF ALL
CONSIDERATION
NOVO
recog-
panel
The trial
charges.
consider
THIS PRO-
TO
FACTS RELEVANT
admitted
record
for the
nized
CEEDING
conclusions
stipulations,
fact
proceeding
disciplinary
In a bar
[1-4]
Re-
recommendation.
disciplinary
agreed
adjudicative licens
as an
functions
this court
his
(by stipulation)that
spondent concedes
original
authority that exercises exclusive
ing
Rules 1.3 and ORPC
RGDP
violates
conduct
authority
on the con
rests
jurisdiction.11 Its
*4
8.4(a)
1.8(b),
1.7(b)(2),
2.1 and
1.1,
Rules
vested,
power
nondelegable
stitutionally
(d).
(which includes
practice of
regulate the
licensure,
the
ethics,
discipline of
the
hearing
{4
the
of
completion
Upon
deciding
legal practitioners)12
State's
testimo-
stipulations
consideration
and what
discipline is warranted
whether
report
issued its
file,
panel
trial
ny
the
sanction,
imposed for the
any,
is to be
if
stipulations).
(which
parties'
the
incorporates
a
court conducts
charged,
this
misconduct
(1) re-
the
nondeferential,
It
examination
recommends
de novo
full-seale
facts,13
findings,
(2) pay
in which the
all relevant
the
of
reprimand and
public
ceive a
of the trial
and recommendations
conclusions
proceeding.
costs of
Schraeder,
v.
Bar Ass'n
lawyer
ex rel. Oklahoma
to:
11. State
a
professional
for
misconduct
"It is
of
(a)
attempt
violate the Rules
572; State ex. rel.
io
570,
or
51, ¶ 5,
OK
51 P.3d
violate
2002
Conduct,
knowingly
assist or induce
23, ¶ 5,
OK
48
Cox,
v.
2002
Professional
Bar Ass'n
so,
through
acts of
the
or do so
to do
v.
another
Okla. Bar Ass'n
782;
State ex rel.
780,
P.3d
*"
* *
another;
661, 666;
P.2d
Leigh,
37, ¶ 11, 914
1996 OK
Eakin,
neglected
complaint
to include
Although the
OK
v.
1995
ex rel. Okla. Bar Ass'n
State
8.4(d),
Counsel
644, 647;
Assistant General
¶ 8,
the
106,
Rule
ORPC
ex rel. Okla.
State
P.2d
914
during
bar
53, ¶ 15,
the
stated
Bolton,
for the OBA
880 P.2d
1994 OK
Ass'n v.
Bar
and should be included
this was inadvertent
339, 344;
v. Donnel
Bar Ass'n
State ex rel. Okla.
5.)
(Transcript p.
terms of
complaint.
the
State
543, 545;
P.2d
164, ¶ 11, 848
1992 OK
ly,
8.4(d) state:
Rule
39,
ORPC
Raskin,
OK
v.
1982
Okla. Bar Ass'n
ex rel.
lawyer to:
for a
professional misconduct
"It is
Integration
State
In re
262, 265;
642 P.2d
¶ 11,
of
prejudicial
to the
(d) engage
is
in conduct
113,
P.2d
378,
OK
95
Oklahoma,
1939
Bar of
* * **"
justice;
of
administration
provide:
Rule 1.3
of RGDP
9. The terms
¶ 5
573; Cox,
at
11, at
Schraeder,
note
supra
Eakin,
782;
11,
¶ 5
supra note
supra
at
at
lawyer
any
note
by any
act con-
of
''The commission
¶ 8
Okla. Bar Ass'n v.
648;
at
State ex rel.
conduct,
11,
wheth-
at
standards
of
trary
prescribed
capacity,
or
professional
his
1120,
Downing,
course of
804 P.2d
er in the
102, ¶ 12,
OK
reasonably
otherwise,
be found
act would
which
at 265-
11,
note
at
1122-23; Raskin,
supra
legal profession, shall
bring
upon the
discredit
action,
or
disciplinary
whether
grounds for
misdemeanor,
felony
or
or
is a
not the act
¶ 5
573; Cox,
at
at
11,
note
supra
proceed-
in a criminal
all. Conviction
crime at
11,
Leigh, supra note
supra
at
imposition
precedent
ing
a condition
is not
11, at
666-67; Eakin,
at 111 at
11,
discipline."
647-48;
Bar Ass'n v.
ex rel. Okla.
State
858; State ex
787 P.2d
1990 OK
Lloyd,
8.4(b) provide:
Rule
of ORPC
10. The terms
Stubblefield,
OK
Bar Ass'n v.
rel. Okla.
979, 982;
¶ 7,
Bar
State ex rel. Okla.
P.2d
lawyer to:
professional misconduct for
"It is
P.2d
17, ¶ 1, 734
adversely
Cantrell, 1987 OK
(b)
Ass'n v.
reflects
act that
commit
criminal
Brandon,
Ass'n
honesty,
or fit-
ex rel. Okla. Bar
1293; State
trustworthiness
on the
* * *"
respects;
824, 827.
lawyer
15, 450 P.2d
in other
1969 OK
ness as
panel
binding
persuasive.14
are neither
nor
mits the facts which serve as the basis of the
by
We are not
seope-of-review
restricted
the
charges against
stipulation
him. A
of fact is
govern
rules that
appeal
corrective relief on
agreement
an
by
the
particular
that a
proceedings
or
certiorari
in which another
(or facts)
fact
in controversy stands admitted.
findings
tribunal's
of fact
have to be left
It serves as an evidentiary substitute that
by
undisturbed
adherence to some law-im
dispenses with the need
proof
of facts
posed standards of deference.15
that are
conceded
parties' agreement.
the
Stipulations
subject
are
approval
duty
16 This court's
can be dis
charged only
they
if
court in which
panel
the trial
are
submits a
entered.18 Re
complete
spondent's
(a)
record of the proceedings.16
stipulations
fact
Our
have been
initial task is to ascertain whether the mate
voluntarily
made
knowledge
of their
(a)
rials
permit
are sufficient to
indepen
an
meaning
(b)
legal
effect and
are not
dent determination of the critical facts and
any
inconsistent with
facts otherwise estab
(b)
crafting
of an appropriate measure of
lished
the record. We
approve
henee
discipline.17
The latter
is that which
adopt
parties'
stipulations.
tendered
consistent with
discipline imposed
upon
lawyers
other
who have committed similar
A.
acts
misconduct and
avoids
visiting disparate
vice of
treatment on
*5
Count I
respondent
lawyer.
charges
T9 The
against respondent arise
admits,
T7 Groshon
proof
and the
sup-
from
complaint
a client
respondent
made
ports,
charge
of
misconduct.
suggestive comments to and engaged
inap
Upon
record,
consideration of the
we con-
propriate touching of her of a sexual nature.
clude that
adequate
its contents are
for this
Shortly after her
February,
divorce in
court's de novo consideration
respondent's
of
Mrs. C. hired
represent
Groshon to
her in an
professional misconduct.
emergency hearing for
custody
child
brought
by her former husband.19Recognizing that
III.
she did not
pay
have the funds to
him at that
FACTS ADMITTED BY STIPULATION
legal services,
time for his
respondent agreed
T8 The
have
to allow her to
payments
tendered
make
whenever she
stipulations
their
ad- was able to do
Respondent
respondent
so.20
which
did not bill
Schraeder,
11,
573;
¶ 5
supra
Cox,
14.
note
at
at
pertinent
fact on all
issues and conclusions of
¶ 5
(including
a
11,
note
at
782;
at
recommendation
as to disci-
supra
Eakin,
note
supra
¶ 8
§
11, at
at 648; Raskin,
note
at
11,
if
supra
such is found to be
pline,
indicated,
and a
range
options
at 265. The court's
of
in a disci
recommendation as to whether the costs of the
plinary proceeding
investigation,
is set
proceedings
forth in RGDP Rule
record and
should be
6.15(a).
provide:
imposed
Its
respondent),
terms
on the
and shall be accom-
panied by
pleadings,
transcript
all
pro-
"(a)
Supreme
approve
Court
the Trial
ceeding, and all exhibits offered."
findings
Panel's
indepen-
of fact or make its own
findings, impose discipline,
dent
pro-
dismiss the
¶ 6
17. Schraeder,
note 11, at
at 573; Cox,
supra
ceedings or take such other action as it deems
11,
¶ 6
783;
supra
Eakin,
note
at
at
supra note
appropriate."
¶ 9
11,
648;
at
at
Bolton,
11,
note
at
16 at
supra
¶ 5
345;
note
¶ 5
Perceful,
15, at
at 630.
15. Schraeder,
supra
11,
note
at
573;
at
Cox,
supra
¶ 5
11,
note
at
at 782-83;
supra
Eakin,
supra
¶ 8
¶ 8
note 11 at
at 648; Bolton,
11,
Cox,
note
at
11,
note
at
at
supra
783; State ex rel.
supra
¶ 15
at
State ex rel. Okla. Bar
Ass'n v.
Okla.
Bar Ass'n v. Livshee,
IV.
of a sane
including
imposition
the
process,
FACTORS
MITIGATING
delinquent
the
tion,
punish
not to
designed
is
the
interests of
safeguard the
lawyer,
to
but
cireumstances
Mitigating
profes
legal
and of the
judiciary,
public, the
arriving at the assess
in
considered
be
only
serve not
sanctions
Disciplinary
sion.31
discip
of
measure
appropriate
of the
ment
lawyer from commit
offending
the
to deter
numerous
report contains
PRT
The
line.29
future,
oper
also
in the
but
acts
ting similar
miti
of
purposes
to be considered
factors
departures
notice that
put
others
ate
(1) was admit
respondent:
It states
gation.
tolerated.
not be
norms will
from ethical
and has
law in 1998
of
practice
the
ted to
upon
imposed
to be
disciplinary measure
mis
professional
disciplined for
never been
consistent
lawyer
be
offending
should
the
accepted
(2)
acknowledged and
conduct,
has
upon
discipline visited
quantum
the
miscon
professional
for his
responsibility
professional
acts of
for similar
practitioners
other
remorse for
sincere
duct,
expressed
has
nduct.32
misco
to Ms. C.
have caused
actions
harm his
the
legal profession,
reputation of
{17
teaches
jurisprudence
Extant
in
cooperative in the
fully
has been
toward
advances
sexual
that a
re
In addition
matter.
of this
vestigation
attorney-client
advantage of the
client take
an isolated
appears
conduct
spondent's
mis
professional
relationship and constitute
pattern of
ongoing
an
than
rather
incident
action
disciplinary
in
result
that will
conduct
We take
clients.
female
acquittal
towards
attorney
the matter
when
against
determining the disci
account
into
these
Bar.33 Re
of the
the attention
brought to
respondent.
on the
imposed
pline to be
advantage of
have taken
not
spondent should
approach
relationship
of the
Because
in a sexual manner.
relationship,
attorney-client
status
MISCONDUCT
RESPONDENTS
of a
an overture
lawyer believes
whether a
A PUBLIC
WARRANTS
encour
even
nature is welcomed-or
sexual
REPRIMAND
way excuses
client
in no
aged-by
con-d
unprofessional
attorney's
engaging
practice law is
116 A license
uet.34
licensee,
for the benefit
conferred
not
sexually
molested
explained
had been
that she
¶ 27
Cox,
578;
at
at
note
Schraeder,
supra
¶
herself,
defended
supra
at 11
learned that
if she
note
a child and
accepted the
than if she
matters worse
it made
579; Cox,
at
light
11, at
enjoyed
Schraeder,
note
it.
acted as if she
or
supra
behavior
¶at
12 at 784.
prosecu-
note
experience as a former
Ms. Farabow's
supra
is an ac-
C.'s
believes Mrs.
tor, she
explanation
Cox,
supra
charges because
response.
She filed
ceptable
at 12 at
very
from the
"(tape
so
different
sounds
(PRT report
transcript."
*8
reading of that
actual
¶
11,
at 32
32.
7.)
tangentially ad-
p.
concern was
The former
Ms. Farabow's
at the PRT
dressed
Sopher,
Bar Ass'n v.
707, 711-12;
33. State ex rel.
you
occur to
respondent:
"Did it ever
question to
55, 14,
State ex
852 P.2d
OK
1993
money
didn't have
because she
870
21, ¶ 4,
OK
1994
Bar Ass'n v.
rel.
Copeland,
background or education-
of her limited
because
777.
P.2d
appear
might
background
have
that she
al
proceeding's
scenario
aspects
34. Some
of this
appear
back with
enjoy your
to flirt
advances or
1)
lengthy dura-
troubling.
These include
are
you
an attor-
as
you
she wouldn't
lose
so that
relationship despite
attorney-client
tion of the
say
ney?" Respondent's
"No. I can't
answer:
2)
C.'s sometimes
respondent's
and Mrs.
conduct
..."
that that ever
responses
recorded
equivocal
in the
manner and
solely
in an effort
concerns
We note these
interpreted as flirta-
could be
conversation that
relationship
present-
parties'
as
characterize
firm,
re-
non-consensual
than as a
tious rather
testimony
the PRT and recorded
before
ed
(See supra
sponse
respondent's
advances.
suggest
we
manner do
In no
conversation.
28.)
Farabow,
the Assistant
Ms.
*9
profession."
the same
Crameres' Twentiere Can-
land,
supra note
at 777.
tury Dictionary
(London
1943).
Edinburgh
&
Professionalism is that conduct which
binds
Copeland, supra
professional or deals with one who is not a
Terp
client. WesstEr's
New Internationat Dictio
Nary
finding
Because
there was no
(Springfield,
or THE
Lancuace 782
engaged
predatory
has
pattern
in a
Mass.1961).
of sexual
usages
"...
inter
Stanparp
misconduct
at clients'
the Assistant
course."
Funx &
expense,
WacnaLts New CormEor
General
Counsel did not believe that the disci-
Dictionary
(New
1947).
York
notes
mitigated by these cir-
is
respondent's conduct
Counsel, directly
the latter
addressed
General
assis-
who seek
Clients
before the PRT.
with Mrs. C. and
matter
cumstances.
(
HODGES,
LAVENDER,
parties
agreement
18 The
are in
concern
HARGRAVE,
SUMMERS,
ing discipline
public
AND
and submit
that a
cen
WINCHESTER,
JJ.,
CONCUR.
respondent's
sure is warranted for
miscon
duct. The
cite to State ex rel. Bar
WATT, C.J.,
KAUGER AND
Sopher35
Ass'n v.
and State ex rel. Oklahoma
BOUDREAU, JJ., CONCUR IN PART
Copeland36
precedent
Bar Ass'n v.
for
AND DISSENT IN PART.
their disciplinary recommendation.37 Sopher
Copeland
public
establish
censure as the
BOUDREAU, J.,
WATT,
with whom
proper disciplinary norm
unprofessional
C.J.,
KAUGER, J., join,
concurring in
attorney's
behavior that serves an
personal part
dissenting
part.
gratification.
interest
in sexual
agree
We
impose
would
a thirty-day suspension
parties'
with the
recommendation. The Bar
from practice
of law.
has a vital responsibility to effect the effica
once,
cious transition from what
regrettably,
tolerated,
have been
if not indeed ac
cepted, behavior to new
standards of
etiq
public reprimand
A
serves
uette.38
goal
here the
giving
Bar's
unmistakable
notice of its commitment
to the enforcement