STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SPRADLING

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SPRADLING
2009 OK 39
213 P.3d 570
Case Number: SCBD-5379; OBAD-1736
Decided: 06/16/2009

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA ex rel. Oklahoma Bar Association Complainant
v.
CAMERON MAXWELL SPRADLING Respondent

BAR DISCIPLINARY PROCEEDING

¶0 In this disciplinary proceeding brought against a lawyer upon his federal-court conviction for willful failure to file an income tax return, the Professional Responsibility Tribunal (PRT) found that respondent's actions reflected adversely on his fitness to practice law and recommended that he be suspended from the practice of law for six months, if he be able to complete all requirements of his supervised release under his conviction in the U.S. District Court before the end of his suspension. On de novo consideration,

RESPONDENT IS ORDERED DISCIPLINED BY A SUSPENSION FROM
THE PRACTICE OF LAW WHICH WILL EXTEND FOR THE TERM
BEGINNING AT THE EFFECTIVE DATE OF THIS COURT'S POST-
CONVICTION ORDER OF IMMEDIATE SUSPENSION TO THE
EFFECTIVE DATE OF THIS PRONOUNCEMENT AND BY IMPOSITION
OF COSTS.

Janis Hubbard, First Assistant Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, Oklahoma, for complainant
Charles F. Alden, III, ALDEN, LEONARD, & DABNEY, Oklahoma City, Oklahoma, for respondent

OPALA, J.

¶1 In this post-conviction disciplinary proceeding against a lawyer under Rule 7.1 of the Rules Governing Disciplinary Proceedings

I

THE ANATOMY OF LITIGATION

¶2 Cameron Maxwell Spradling (respondent or Spradling) pleaded guilty on November 29, 2006 in the United States District Court for the Western District of Oklahoma to one misdemeanor count of failure to file an income tax return for 2003 in violation of 26 U.S.C. § 7203.

¶3 At a May 20, 2008 hearing the PRT found that respondent's guilty plea for failure to file income tax return showed the respondent's unfitness to practice law and recommended the respondent be suspended from the practice of law for six months, beginning February 7, 2008, if he could complete the requirements of his supervised release imposed by his conviction in the U.S. District Court before the end of his suspension. Respondent was discharged from supervised release by an order of the U.S. District Court on July 17, 2008.

II

IN POST-CONVICTION BAR DISCIPLINARY PROCEEDINGS DE NOVO
CONSIDERATION MUST BE GIVEN TO THE QUESTION WHETHER
RESPONDENT RETAINS CONTINUED FITNESS TO PRACTICE LAW

¶4 Post-conviction disciplinary proceedings require this court to examine the entire record tendered and, if it is complete,

¶5 In Bar disciplinary proceedings the review given by this court differs from other genres. This is so because it is mandated by this court's constitutionally invested status as the tribunal of exclusive original cognizance over disciplinary actions of the Bar. This court's jurisdiction over lawyers and its regulation of the practice of law are nondelegable functions. The findings of the PRT are hence neither binding nor persuasive. They do not constitute the decision of an independent tribunal. This court must examine and weigh the evidence as if it were acting as a tribunal of first instance exercising original and exclusive jurisdiction.

The Parties' Stipulations

¶6 Respondent and the Bar stipulate that respondent's guilty plea for willful failure to file an income tax return proves his guilt of professional misconduct and justifies the imposition of punishment. The parties also stipulate that respondent has previously received a public censure in an unrelated disciplinary case.

¶7 The PRT submits that State ex rel. Oklahoma Bar Ass'n v. Livshee

III

THE CONSEQUENCES OF A LAWYER'S CONVICTION FOR FAILURE
TO FILE AN INCOME TAX RETURN

¶8 A conviction for willful failure to file an income tax return demonstrates a lawyer's "unfitness to practice law." See Rule 7.1.

IV

DISCIPLINE TO BE IMPOSED

¶9 Disciplinary sanctions are not solely intended to punish offending lawyers; they also serve to protect the interests of the public, of the court system, and of the legal profession.17 Disciplinary process and imposed sanctions not only deter future misconduct by offending lawyers, but also demonstrate to others that violations of professional and ethical standards will not be tolerated. The sanction imposed upon an offending lawyer should be consistent with the quantum of discipline given to other practitioners for similar acts of misconduct.18 Today's sanction meets these goals.

¶10 On its complete de novo consideration of the entire record, the court holds that Spradling's conviction demonstrates his unfitness to practice law within the meaning of Rule 7.119 and warrants the imposition of discipline. Based upon the precedent adopted by this court in Livshee, the pendente lite suspension under which Spradling stands has extended for a period long enough to constitute an adequate disciplinary measure for the misconduct of which he was convicted. That suspension, which began when this court issued its Order of Immediate Suspension on February 7, 2008, will be at an end when this pronouncement becomes effective and final. Our opinion herein shall be effective in the sense of allowing respondent's resumption of law practice when the costs of this proceeding in the sum of $1,000.98 have been paid and its remittance documented by the Bar's filing herein of its receipt.

¶11 Respondent is ordered disciplined by a suspension from the practice of law which will extend from the effective date of this court's post-conviction order of immediate pendente lite suspension to the effective date of this pronouncement and by imposition of costs.

¶12 ALL JUSTICES CONCUR.

FOOTNOTES

1 The terms of Rule 7.1, Rules Governing Disciplinary Proceedings, 5 O.S.Supp.2007, Ch. 1, App. 1-A, are:

A lawyer who has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer's unfitness to practice law, regardless of whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal.

2 The terms of 26 U.S.C. § 7203 provide in pertinent part:

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

3 U.S. v. Spradling, Cause No. M-06-135-C, U.S. District Court for the Western District of Oklahoma (2006).

4 State ex rel. Oklahoma Bar Ass'n v. Spradling, 2008 OK 14.

5 The terms of Rule 7.3, Rules Governing Disciplinary Proceedings, 5 O.S.Supp.2007, Ch. 1, App. 1-A, are:

Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court shall by order immediately suspend the lawyer from the practice of law until further order of the Court. In its order of suspension the Court shall direct the lawyer to appear at a time certain, to show cause, if any he has, why the order of suspension should be set aside. Upon good cause shown, the Court may set aside its order of suspension when it appears to be in the interest of justice to do so, due regard being had to maintaining the integrity of and confidence in the profession.

6 No additional evidence is needed for today's review. See Application of Sanger, 1993 OK 158, 865 P.2d 338.

7 State ex rel. Okla. Bar Ass'n v. Livshee, 1994 OK 12, ¶4, 870 P.2d 770, 773; see Willner v. Comm. on Character and Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963); State ex rel. Okla. Bar Ass'n v. Carpenter, 1993 OK 86, ¶12, 863 P.2d 1123, 1129; Appeal of Evinger, 1981 OK 58, 629 P.2d 363, 368; State ex rel. Okla. Bar Ass'n v. Trower, 1963 OK 93, 381 P.2d 142, 144; see also Application of Sanger, supra note 6 at ¶5, 865 P.2d at 343.

8 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7; Shelton v. Lambert, 1965 OK 28, 399 P.2d 467, 470 (1965), see also Globe-Union, Inc. v. Chi. Tel. Supply Co., 103 F.2d 722, 728 (7th Cir. 1939).

9 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7; Brown v. Burkett, 1988 OK 49, ¶3, 755 P.2d 650, 651; Globe-Union, supra note 9 at 728; Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141, 145 (1941); see also Okla. Const. art. 9 § 20; Atchison, Topeka & Santa Fe Ry. Co. v. State, 1984 OK 87, ¶3, 692 P.2d 554, 555-556.

The pertinent provisions of Okla. Const. art. 9 § 20, are:

The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts.

10 State ex rel. Okla. Bar Ass'n v. Spradling, 1994 OK 77, 880 P.2d 358.

11 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7.

12 For the text of Rule 7.1, see supra note 1.

13 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7, at ¶8, 870 P.2d at 774; Comm. on Prof'l Ethics v. Bromwell, 221 N.W.2d 777, 779-780 (Iowa 1974); St. Pierre's Case, 304 A.2d 88, 89 (N.H. 1973); In re Schub, 296 N.E.2d 738, 740 (Ill. 1973); In re Calhoun, 245 A.2d 560 (Vt. 1968).

14 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7; Attorney Grievance Com'n of Md. v. Walman, 280 Md. 453, 374 A.2d 354, 361 (Md.App. 1977); Cleveland Bar Ass'n v. Stein 29 Ohio St.2d 77, 278 N.E.2d 670, 673 (1972); In re Calhoun, supra note 13; Cannot., "Federal Income Tax Conviction as Involving Moral Turpitude Warranting Disciplinary Action Against Attorney", 63 A.L.R.3d 476 (1975); Cannot., "Federal Income Tax Conviction As Constituting Nonprofessional Misconduct Warranting Disciplinary Action Against Attorney", 63 A.L.R.3d 512 (1975).

15 State ex rel. Okla. Bar Ass'n v. Livshee, supra note 7; State v. Arneson, 36 Wis.2d 618, 153 N.W.2d 497, 500 (1967); In re Calhoun, supra note 13 at 561; Ohio State Bar Ass'n v. Hart, 15 Ohio St.2d 97, 238 N.E.2d 560, 561 (1968), cert. den. 393 U.S. 933, 89 S. Ct. 292, 21 L. Ed. 2d 269 (1968); In re Knapp, 127 Vt. 222, 245 A.2d 561 (1968).

16 In re Schub, supra note 13 at 740.

17 State ex rel. Okla. Bar Ass'n v. Groshon, Jr., 2003 OK 112, ¶16, 82 P.3d 99, 106; State ex rel. Okla. Bar Ass'n v. Schraeder, 2002 OK 51, ¶32, 51 P.3d 570, 579.

18 State ex rel. Okla. Bar Ass'n v. Groshon, Jr., supra note 17; State ex rel. Okla. Bar Ass'n v. Schraeder supra note 17.