STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION v. GIGER

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STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION v. GIGER
2004 OK 43
93 P.3d 32
Case Number: SCBD-4796
Decided: 06/08/2004

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant,
v.
CORDES MARTIN GIGER, Respondent.

BAR DISCIPLINARY PROCEEDING

¶0 In this disciplinary proceeding against a lawyer, the complaint alleges in two counts unprofessional conduct deemed to warrant sanctions. A trial panel of the Professional Responsibility Tribunal found clear and convincing evidence that respondent engaged in the misconduct alleged in count one of the complaint, but recommended that no discipline be imposed. The trial panel found insufficient evidence that respondent engaged in the misconduct alleged in count two of the complaint. With one member dissenting, the trial panel recommended that count two be dismissed. The dissenter recommended that the hearing on count two be continued until the Bar is prepared to present evidence. Upon de novo review of the evidence presented to the trial panel,

RESPONDENT IS ORDERED DISCIPLINED BY A PUBLIC
CENSURE FOR THE MISCONDUCT ALLEGED IN COUNT
ONE OF THE COMPLAINT; COUNT TWO OF THE
COMPLAINT IS DISMISSED WITHOUT PREJUDICE.

Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
Cordes Martin Giger, Respondent, Norman, Oklahoma, pro se.

OPALA, V.C.J.

¶1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition?

I
INTRODUCTION TO THE RECORD

¶2 The Oklahoma Bar Association (the "Bar") commenced this disciplinary proceeding on 21 March 2003 against Cordes Martin Giger (respondent or Giger), a lawyer whose license to practice law is currently suspended, by filing a formal complaint in accordance with the provisions of Rule 6.1 of the Rules Governing Disciplinary Proceedings ("RGDP").

¶3 Upon completion of the hearing and after consideration of the testimony and exhibits on file, two members of the trial panel issued a report finding that respondent engaged in the misconduct alleged in count one of the complaint, but recommended that no additional disciplinary sanction be imposed upon respondent beyond the two-year- and-one-day suspension he is already serving under this court's order of 10 June 2003 in State ex rel. Oklahoma Bar Association v. Giger ("Giger II").

II
THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT
EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION
OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶4 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance.

III
RESPONDENT'S MISCONDUCT ALLEGED IN COUNT ONE OF THE
COMPLAINT CALLS FOR DISCIPLINE BY PUBLIC CENSURE

¶7 The Bar alleges in count one of the complaint that respondent violated the provisions of ORPC Rule 8.4(b),

¶8 In answer to the complaint, respondent admits only that he entered the store and put the batteries in his pocket. His answer does not specifically deny the Bar's remaining allegations, but he testified at the PRT hearing that whatever he did, he did inadvertently and without the intent to steal the batteries from the store. Rather than contest the facts, respondent's answer asserts as a defense that the petty larceny incident cannot serve as the basis for discipline in this proceeding because the court has already dealt with the incident in Giger II and disposed of it.

¶9 In Giger II, the Bar sought to impose additional discipline on respondent for violating the terms of an earlier disciplinary suspension imposed on respondent in State ex rel. Oklahoma Bar Association v. Giger ("Giger I").

¶10 Respondent does not identify the legal principle upon which he rests his contention that the court cannot again consider the petty larceny matter, but we surmise that he is referring to either double jeopardy or one of the preclusion doctrines. In either case, we disagree that the petty larceny incident is now beyond the court's constitutionally vested authority to discipline wayward practitioners.

¶11 Oklahoma's prohibition against double jeopardy provides that having been acquitted by a jury, no person shall again be "put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense."

¶12 The doctrine of claim preclusion, formerly known at common law as res judicata, teaches that a final judgment on the merits of an action precludes the parties from re-litigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action.

"a legal concept which has no separate existence in the natural order of things. It is what the makers of legal policy, the Legislature and the courts, say it is. It exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice."

The claim in Giger II was that respondent's petty larceny at the Norman Wal Mart violated the terms of the conditioned probation imposed on respondent in Giger I. That was the only claim decided on the merits in Giger II. The Bar cannot re-litigate that claim, but it is not barred by the doctrine of claim preclusion from bringing a separate disciplinary proceeding in which we are asked to determine whether the petty larceny incident warrants independent disciplinary sanctions.

¶13 The other preclusion doctrine, formerly known at common law as collateral estoppel, is issue preclusion. Under this doctrine, once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim.

¶14 We find the evidence presented in this proceeding clear and convincing that respondent committed the offense of petty larceny at the Norman Wal Mart as alleged in count one of the complaint. In State ex rel. Oklahoma Bar Association v. Bradley,

¶15 Even if the nolo contendere plea were not admissible or not sufficient in and of itself to prove the Bar's allegations, we would nevertheless find from this record sufficient evidence that respondent committed the alleged petty larceny. Respondent does not deny that he took the batteries off the shelf, put them in his pocket, and left the store without paying for them. His defense is that he did so inadvertently. We are not persuaded. One does not enter a store, remove a product from its packaging, discard the packaging, and place the item in one's clothing in the absence of an intent to abscond with the merchandise.

¶16 We find that respondent's conduct violated the provisions of ORPC Rule 8.4(b), ORPC Rule 8.4(c), and RGDP Rule 1.3. The trial panel recommended that we impose no discipline for this infraction given that respondent is already serving a two-year-and-one-day suspension. We cannot accede to this recommendation without having it appear that we view shoplifting to be of little consequence. We do not. Shoplifting, even when the items stolen are of little value, is harmful to society. When one engages in such misconduct, it indicates psychological or emotional problems or a lack of respect for the law, or both. For a lawyer, neither mental state is acceptable. In light of respondent's current suspended status, we believe a public censure suffices to vindicate the interests we are sworn to protect. Because he has already been suspended for two years and one day in Giger II, respondent must apply for reinstatement if he is to practice law again.

IV
COUNT TWO OF THE COMPLAINT

¶17 The Bar alleges in count two of the complaint that respondent engaged in some very serious acts of misconduct which, if true, constitute both criminal offenses as well as ethical breaches. The Bar was not prepared to offer evidence at the PRT hearing substantiating the allegations and indicated that it would dismiss the count were that course of action open to it. Two members of the trial panel recommended that the count be dismissed, while the remaining trial panel member recommended that the hearing on count two be continued until such time as the Bar is prepared to present its case.

¶18 The provisions of RGDP Rule 6.15 govern the court's options in disposing of a disciplinary proceeding. They permit the court to "impose discipline, dismiss the proceedings or take such other action as it deems appropriate." We decline to order the hearing on count two continued in the absence of a properly formulated request by the Bar to do so.

V
SUMMARY

¶19 The Bar has charged respondent with two counts of professional misconduct. We find clear and convincing evidence that respondent committed the offense of petty larceny from a Norman Wal Mart in violation of ORPC Rule 8.4(b), ORPC Rule 8.4(c), and RGDP Rule 1.3. In the circumstances of this case the appropriate disciplinary sanction for respondent's misconduct is a public censure. We determine that the Bar failed to prove the allegations in count two of the complaint and order that count dismissed without prejudice to its refiling should proof of the alleged misconduct become available.

¶20 RESPONDENT IS ORDERED DISCIPLINED BY A PUBLIC
CENSURE FOR THE MISCONDUCT ALLEGED IN COUNT
ONE OF THE COMPLAINT; COUNT TWO OF THE
COMPLAINT IS DISMISSED WITHOUT PREJUDICE.

¶21 ALL JUSTICES CONCUR.

FOOTNOTES

1 The record consists of the transcript of the hearing held before a trial panel of the Professional Responsibility Tribunal, exhibits offered by the complainant which were admitted into evidence at the hearing, and the trial panel's majority and minority reports.

2 The Rules Governing Disciplinary Proceedings are codified at 5 O.S. 2001, Ch.1, App. 1-A. The provisions of RGDP Rule 6.1 state:
"The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court."

3 The Oklahoma Rules of Professional Conduct are codified at 5 O.S. 2001, Ch. 1, App. 3-A.

4 2003 OK 61, 72 P.3d 27.

5 State ex rel. Okla. Bar Ass'n v. Leigh, 1996 OK 37, ¶11, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶8, 914 P.2d 644, 647; State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶15, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 115.

6 Eakin, supra note 5 at ¶8, at 648; State ex rel. Okla. Bar Ass'n v. Downing, 1990 OK 102, ¶12, 804 P.2d 1120, 1122-1123; Raskin, supra note 5 at ¶11, at 265-266.

7 Leigh, supra note 5; Eakin, supra note 5 at ¶8, at 647-648; State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, ¶8, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass'n v. Stubblefield, 1988 OK 141, ¶7, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass'n v. Cantrell, 1987 OK 17, ¶1, 734 P.2d 1292, 1293; State ex rel. Okla. Bar Ass'n v. Brandon, 1969 OK 28, ¶5, 450 P.2d 824, 827. Because this court's cognizance of disciplinary proceedings cannot be shared with any other institution, every aspect of the Bar's adjudicative process must be revisited by our de novo consideration. The attribute of nondelegable jurisdiction serves to distinguish the conduct of bar disciplinary functions from trial de novo -- a retrial in a different court -- or even from de novo appellate review on the record, which stands for an independent, non-deferential examination of another tribunal's record.

8 Eakin, supra note 5 at ¶8, at 648; Raskin, supra note 5 at ¶11, at 265. The court's range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a), 5 O.S. 2001, Ch.1, App. 1-A, which states in pertinent part:

"The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate."

9 Bolton, supra note 5 at ¶15, at 344; Eakin, supra note 5 at ¶8, at 648; State ex rel. Okla. Bar Ass'n v. Farrant, 1994 OK 13, ¶7, 867 P.2d 1279, 1284. Accord, Levi v. Mississippi State Bar, 436 So. 2d 781, 782 (Miss. 1983).

10 The provisions of RGDP Rule 6.13, 5 O.S. 2001, Ch. 1, App.1-A, state in pertinent part:
"Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel's findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat. . . ."

11 Eakin, supra note 5 at ¶9, at 648; Bolton, supra note 5 at ¶16, at 345; State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶5, 796 P.2d 627, 630.

12 The provisions of ORPC Rule 8.4(b), 5 O.S. 2001 Ch. 1, App. 3-A, state:
"It is professional misconduct for a lawyer to:
* * * * *
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . ."

13 The provisions of ORPC Rule 8.4(c), 5 O.S. 2001 Ch. 1, App. 3-A, state:
"It is professional misconduct for a lawyer to:
* * * * *
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . ."

14 The provisions of RGDP Rule 1.3, 5 O.S. 2001 Ch. 1, App. 1-A, state:
"The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."

15 2001 OK 96, 37 P.3d 856.

16 See Giger II, supra note 4 at ¶23, n. 27, at 37, n. 27.

17 OKLA. Const. art, II, §21.

18 U.S. Const. amend. V.

19 Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969) ("[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.").

20 United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S. Ct. 379, 387, 87 L. Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19-20, 14 L. Ed. 306 (1852).

21 Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1938); Hess, supra note 20 at 548-549, 63 S. Ct. 386-87 (stating that only "criminal punishment to vindicate public justice . . . subject[s] the defendant to 'jeopardy' within the constitutional meaning."); Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975) (stating that for constitutional purposes, "jeopardy describes the risk that is traditionally associated with a criminal prosecution.").

22 State ex rel. Okla. Bar Ass'n v. Groshon, 2003 OK 112, ¶16, 82 P.3d 99, 106 ("The disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, the judiciary, and of the legal profession."); State ex rel. Okla. Bar Ass'n v. Bradley, 1987 OK 78, ¶22, 746 P.2d 1130, 1134 ("The ultimate purpose in disciplining attorneys is not punishment but purification of the Bar and protection of courts and public in general.").

23 See Unit Petroleum Co. v. Nuex Corp., 1991 OK 21, ¶5, 807 P.2d 251, 255 (Opala, C.J., with whom Kauger, J., joins, dissenting).

24 See e.g. Matter of Discipline of Babilis, 951 P.2d 207, 214 (Utah 1997) ("The penalties available under the Standards for Imposing Lawyer Sanctions are not punishment for double jeopardy purposes. An attorney's license to practice law is contingent on compliance with professional ethical standards. A restriction on, or withdrawal of, the right to practice law as a sanction for violation of professional ethical standards is remedial in nature. . . . Attorney discipline therefore is neither punitive nor a criminal penalty in any sense."); Attorney Grievance Comm'n of Md. v. Brown, 517 A.2d 1111, 1112 (Md. 1986) (Attorney's former jeopardy claim rejected "because lawyer discipline proceedings are not criminal proceedings."); People v. Marmon, 903 P.2d 651, 652 (Colo. 1995); Florida Bar v. Weed, 513 So. 2d 126, 128 (Fla 1987).

25 McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶7, 979 P.2d 252, 255-56; Miller v. Miller, 1998 OK 24, ¶23, 956 P.2d 887, 896; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶12, 946 P.2d 662, 667; Veiser v. Armstrong, 1984 OK 61, ¶8, n. 9, 688 P.2d 796, 800, n. 9.

26 977 OK 178, 572 P.2d 966.

27 Id. at ¶ 9, at 968. See also Allan D. Vestal, PERSONAL INJURY ANNUAL (1969) at V-43.

28 Ouellette v. State Farm Mutual Automobile Ins. Co., 1994 OK 79, ¶4, n. 8, 918 P.2d 1363, 1365, n. 8; National Diversified Business Services, Inc. supra note 25 at ¶11, at 666; Chambers v. City of Ada, 1995 OK 24, ¶9, n. 5, 894 P.2d 1068, 1072, n. 5; Wilson v. Kane, 1993 OK 65, ¶8, n. 23, 852 P.2d 717, 722, n. 23;Veiser v. Armstrong, supra note 25 at ¶8, n. 9, at 800, n. 9. See also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272 (10th Cir.1995) and RESTATEMENT OF JUDGMENTS (SECOND) § 27 (1982) ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.").

29 Nealis v. Baird, 1999 OK 98, ¶51, 996 P.2d 438, 458.

30 Id..

31National Diversified Business Services, Inc., supra note 25 at ¶13, at 667.

32See supra note 22.

33Id. at ¶22, at 1134. A nolo contendere plea is generally not admissible against the person who made it in a later civil action or criminal proceeding, 12 O.S. 2001 §2410.A.2. and 22 O.S. 2001 §513, nor is evidence of a judgment entered upon a plea of nolo contendere admissible as an exception to the hearsay rule. See 12 O.S. 2001 §2803.22. In Bradley the court held that the nature and purpose of a bar disciplinary proceeding calls for a less restrictive rule on the admission of a nolo contendere plea in proceedings against a member of the Bar. In contrast, a felony judgment entered upon a plea of guilty, which is no longer subject to appellate review, is admissible, 12 O.S. 2001 §2803.22., and a guilty plea would be admissible as an admission against interest. Laughlin v. Lamar, 1951 OK 330, ¶5, 237 P.2d 1015,1016.

34The pertinent provisions of RGDP Rule 6.4, 5 O.S. 2001 Ch. 1, App. 1-A, state:

"The respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respondent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed." (emphasis added).

35Id.

36A suspension from the practice of law for two years and one day is tantamount to disbarment. See the provisions of RGDP Rule 11.1, 5 O.S. 2001 Ch. 1, App.1-A. In order to be reinstated, a lawyer suspended for that period of time must follow the readmission procedure for disbarred lawyers. That procedure, set forth in the provisions of RGDP Rule 11.4, 5 O.S. 2001 Ch. 1, App. 1-A., entails the following:

"An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant's conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court's former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the applicant complied with Rule 9.1 of these Rules."