STATE ex. rel. OKLAHOMA BAR ASS'N v. SHOFNER

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STATE ex. rel. OKLAHOMA BAR ASS'N v. SHOFNER
2002 OK 84
60 P.3d 1024
Case Number: SCBD-4672
Decided: 10/29/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant
v.
JIM D. SHOFNER, Respondent

RULE 7 BAR DISCIPLINARY PROCEEDING

¶0 Respondent/attorney, after a guilty plea, was convicted of violating 18 U.S.C. § 371 (2000)(conspiracy). The charge involved his participation, along with a client, in fraudulently concealing assets in the client's bankruptcy proceeding. By this Court's March 4, 2002 Order the matter was referred to a Professional Responsibility Tribunal (PRT) trial panel for a hearing to allow respondent to present evidence tending to mitigate the severity of the discipline. The March 4th Order also allowed complainant, the Oklahoma Bar Association (OBA), through its General Counsel's Office, to appropriately respond to any mitigating evidence and to adduce proof in aggravation of the bar discipline to be imposed. In its written report the PRT trial panel recommends to this Court a suspension of two years and one day. The OBA argues for disbarment and respondent requests a suspension of two years or less. We hold the appropriate discipline is disbarment.

RESPONDENT DISBARRED AND HIS NAME IS STRICKEN FROM THE ROLL
OF ATTORNEYS;
COSTS CHARGED TO RESPONDENT.

Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for Complainant
William G. LaSorsa, Tulsa, Oklahoma for Respondent

LAVENDER, J.:

¶1 Complainant, the Oklahoma Bar Association (OBA), by an October 29, 2001 letter (with attached documentation) from its General Counsel's Office, notified us respondent, Jim D. Shofner, a licensed attorney, was convicted of the federal felony crime of conspiracy, 18 U.S.C. § 371 (2000), after being charged and pleading guilty thereto in the United States District Court for the Northern District of Oklahoma. Section 371 provides in pertinent part:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Materials accompanying the OBA's letter included the charging information and the "judgment in a criminal case" entered in October 2001. In essence, the charge involved respondent's participation, along with a client, in fraudulently concealing assets in the client's bankruptcy proceeding from the appointed trustee and creditors, including the Internal Revenue Service (IRS). Respondent was sentenced to eighteen (18) months imprisonment (commencing on November 5, 2001), two years supervised release after serving his prison term, plus he was fined $4,000.00, and ordered to pay restitution in the amount of $121,328.46 (which has been paid in full according to the federal judgment) and a $100.00 special assessment to the United States.

¶2 Pursuant to Rule 7.1 (Criminal Conviction of Lawyer) and Rule 7.3 (Interim Suspension from Practice) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.1, App.1-A, we issued an interim suspension suspending respondent from the practice of law by a December 3, 2001 Order because the conviction appeared to facially demonstrate respondent's unfitness to practice law. See State ex rel. Oklahoma Bar Ass'n v. Badger,

[60 P.3d 1026]

¶3 The PRT trial panel hearing was held in April 2002 and its written report was filed with this Court in June, as was the hearing transcript. In July 2002 the parties submitted briefs on their positions concerning discipline. The PRT trial panel report recommends a suspension of two years and one day, respondent requests a suspension of two years or less and complainant argues for disbarment.2 After de novo review, we find the appropriate discipline to be disbarment. We also hold respondent should pay the costs of these proceedings.3

¶5 Our responsibility is not to punish the offending lawyer, but to assess his/her continued fitness to practice law. State ex rel. Oklahoma Bar Ass'n v. Meek,

¶6 Mitigating circumstances are also often considered when assessing the appropriate measure of discipline. State ex rel. Oklahoma Bar Ass'n v. Thomas,

¶7 There is no question respondent stands convicted of a crime that, on its face, shows his unfitness to practice law. The information in the federal criminal case sets out the circumstances which underlie respondent's conviction. In essence, the charging information sets out facts that indicate respondent knowingly and fraudulently assisted a client - Barbara Jean Tillman, a/k/a Barbara Jean Hale, a/k/a Barbie Hale, and [60 P.3d 1027] a/k/a B. Hale (Tillman) - in concealing a piece of real property and/or the proceeds of its sale from the appointed trustee and creditors, including the Internal Revenue Service, in Tillman's bankruptcy case where respondent was acting as her attorney. The information also shows that respondent was an active participant in the fraudulent, deceitful conduct. The information sets out that the scheme to conceal involved the client's use of a pseudonym and deposit of the sale proceeds into respondent's trust account(s). Said proceeds were eventually paid to the client, or other persons for her use and benefit, by respondent. Rule 7.2 (Transmittal of Record Relating to Conviction), RGDP, provides that the information and the judgment and sentence of conviction shall be conclusive evidence of the conviction of the crime upon which the judgment and sentence is based.

¶8 Respondent did not testify at the PRT hearing, as he is serving his prison sentence at the federal penal facility in El Reno, Oklahoma. His case in mitigation was presented by his attorney, who called numerous witnesses. The witnesses included other attorneys, two district court judges, a special judge and others who have known him for various lengths of time professionally and/or socially. More than one of these witnesses have known him for over thirty (30) years. Letters were also submitted on his behalf, including letters from his children, one of whom is an attorney practicing in Atlanta, Georgia. The OBA called no witnesses and it relies on the nature of the crime committed for its recommendation of disbarment.

¶9 Without exception the witnesses presented by respondent had favorable opinions of him. His honesty and integrity were vouched for, as was his ability as a lawyer. The evidence at the hearing also showed that respondent has been a licensed practicing attorney in Oklahoma for more than thirty-three (33) years and, but for this criminal conviction and the conduct leading to it, he has never been the subject of a grievance filed against him with the OBA. Those who had talked to him concerning the crime he committed also indicated respondent acknowledged his wrongful conduct and the witnesses were generally shocked at learning of his involvement in such behavior (because of his reputation for honesty and integrity). Witnesses also expressed a view that the criminal activity involved was aberrational and would not be repeated. However, no witness, save one, had any detailed explanation for why respondent would engage in such serious wrongdoing on behalf of a client.

¶10 The one witness who expressed any type of detailed view of why respondent engaged in such serious and reprehensible misconduct, misconduct directly engaged in in his capacity as an attorney, was another lawyer that has known him for over twenty (20) years and is representing him in some type of civil case tied to the Tillman matter. Essentially, this attorney expressed the view that respondent, although now realizing the wrongfulness of his conduct, initially believed the proceeds of the real estate sale that were concealed in the involved bankruptcy proceeding were subject to some type of reporting exemption and that the client, Tillman, being a particularly manipulative person, somehow convinced respondent to engage in the wrongful conduct. Evidence was also presented that respondent did not engage in the criminal misconduct for his own personal financial gain. Further, as previously noted, respondent has made restitution in regard to the money concealed in the bankruptcy proceeding.[60 P.3d 1028]

¶11 This Court, on occasion, has administered discipline less than disbarment when an attorney has been convicted of a crime involving dishonest conduct. See e.g. State ex rel. Oklahoma Bar Ass'n v. Dennison,

¶12 Even when the fraudulent activity involved an attorney's personal or family business dealings and not the representation of an outside party, we deemed disbarment the appropriate discipline for convictions of crimes similar to that which this respondent attorney stands convicted. State ex rel. Oklahoma Bar Ass'n v. Crabtree,

¶13 As we view the matter, this case does not neatly fit into any of our prior cases. However, it is clear to us that respondent's criminal conduct was of an extremely serious nature. It involved fraudulent conduct in his capacity as an attorney, conduct intended to defraud creditors in his client's bankruptcy, including the IRS. It also involved fraud upon a bankruptcy court. Even considering the evidence presented by respondent in mitigation, we conclude that disbarment is the appropriate discipline in this case and that disbarment is the discipline that will best serve the welfare of the public and the integrity of the bar.

¶15 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, KAUGER, SUMMERS and WINCHESTER, JJ., concur.[60 P.3d 1029]

¶16 OPALA, J., concurs in respondent's disbarment, but would prefer to make its effective date coincidental with the time the court's opinion becomes final.

¶17 BOUDREAU, J., disqualified. [60 P.3d 1030]

FOOTNOTES

1 Rule 7 (Summary Disciplinary Proceedings Before Supreme Court) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.1, App.1-A, sets out the procedures for summary disciplinary proceedings before this Court. State ex rel. Oklahoma Bar Ass'n v. Willis, 1993 OK 138, 863 P.2d 1211, 1212. Rule 7.1 thereof provides that an attorney who has been convicted of a crime demonstrating their unfitness to practice law shall be subject to discipline. Rule 7.4 provides that if the conviction becomes final without appeal (as here) this Court shall order the lawyer to show cause why a final order of discipline should not be made, and the lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed submit a brief and evidence tending to mitigate the severity of discipline. Rule 7.4 also allows the attorney's response to the show cause order to make a request for a hearing. In a post-conviction bar disciplinary hearing facts that gave rise to the criminal charge cannot be relitigated. State ex rel. Oklahoma Bar Ass'n v. Livshee, 1994 OK 12, 870 P.2d 770, 772. In such a hearing, the range of permissible inquiry is confined to issues germane to mitigation or severity of the bar disciplinary sanction to be visited upon the respondent lawyer. Id.

2 An attorney suspended for a period longer than two years or that is disbarred must file a petition for reinstatement with the Clerk of this Court. Rule 11.1 (Petition for Reinstatement), RGDP. Rules 11.1 through 11.7, RGDP, set out detailed procedures regarding the petition and the manner of its handling, including the placement of the burden of proof, by clear and convincing evidence, on the attorney seeking reinstatement. These Rules also make plain that reinstatement is not automatic and a lawyer suspended for more than two years or that is disbarred may be reinstated only upon an order/decision of this Court. In contrast, an attorney suspended for two years or less upon disciplinary charges may resume practice upon expiration of the suspension period by filing with the Clerk an original and two copies of an affidavit affirming they have not engaged in the unauthorized practice of law, otherwise violated the Oklahoma Bar Association (OBA) rules or the terms of the suspension, and no order of this Court is necessary. Rule 11.8 [Reinstatement Without Order After Suspensions of Two (2) Years or Less], RGDP. Material deletions or misrepresentations in the affidavit are grounds for subsequent discipline. Id.

3 When discipline is imposed Rule 6.16 , RGDP, provides the costs of the investigation, record and disciplinary proceedings shall be surcharged against the disciplined lawyer, unless remitted for good cause by this Court. No good cause for remission has been shown.

4 We note that at page two of respondent's response to complainant's brief in chief (filed July 24, 2002) it is stated,"[i]n the interest of judicial economy, respondent adopts the facts contained in the Plea Agreement at pages 5 through 7 previously filed with this Court." We assume the "Plea Agreement" referred to is a document connected with, submitted in or filed in the federal criminal case. No such "Plea Agreement" has previously been filed with this Court. Nor was it admitted at the Professional Responsibility Tribunal (PRT) trial panel hearing held in April 2002.