STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WILBURN

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WILBURN
2010 OK 25
236 P.3d 79
Case Number: SCBD-5436
Decided: 03/16/2010

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,
v.
RHETT HENRY WILBURN, Respondent.

RULE 7 DISCIPLINARY PROCEEDING

¶0 Complainant initiated attorney discipline proceeding against Respondent for misconduct arising out of one felony and three misdemeanor convictions. After a hearing to mitigate the severity of discipline, a Professional Responsibility Tribunal recommended suspension for two years and one day. After de novo review, this Court finds that Respondent is guilty of misconduct and the appropriate discipline is suspension for two years and one day.

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO
YEARS AND ONE DAY; RESPONDENT ORDERED TO PAY COSTS.

Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for complainant.
Respondent, Rhett Henry Wilburn, Glenpool, Oklahoma appearing pro se.

REIF, J.:

¶1 This case is a disciplinary proceeding against Respondent, Rhett Henry Wilburn, pursuant to Rule 7; (Summary Disciplinary Proceedings before the Supreme Court) 5 O.S.2001, Ch. 1, App. 1-A. Respondent was convicted in Pawnee County of felony unlawful possession of a controlled substance, Oxycodone. He was placed on three years' probation, with the first year under supervision of the Oklahoma Department of Corrections. Respondent was also convicted of three misdemeanors in Tulsa County - one count of entering a building with the unlawful intent to commit assault and battery, and two counts of assault and battery upon the persons of an eleven-year-old girl and a five-year-old boy. He received a one-year sentence for entering a building with unlawful intent, with the first 23 days to be served in Avalon and the remaining suspended. For the assaults, Respondent received 90-day sentences, with part in the custody of Avalon and part suspended, to run concurrently with the sentence for entering with unlawful intent.

¶2 On November 10, 2008, we issued an Order of Interim Suspension. We subsequently referred the matter to a Professional Responsibility Tribunal, because the probable cause affidavit in the Pawnee County felony case indicated that Respondent (1) took payment, at least partially, from a client in the form of Oxycodone, (2) received payment for legal services in the form of drugs on other occasions, and (3) occasionally took sexual favors from women for payment of legal fees.

¶3 We also specially noted the Tulsa County misdemeanor convictions stemmed from misconduct occurring less than three months after this Court disciplined Respondent for prior criminal misconduct. State ex rel. Oklahoma Bar Ass'n v. Wilburn (Wilburn I),

¶4 The regulation of licensure, ethics, and discipline of legal practitioners is a nondelegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive Jurisdiction. State ex rel. Oklahoma Bar Ass'n v. Albert,

¶5 To impose appropriate discipline, the record must be sufficient for this Court to conduct a thorough inquiry into essential facts. State ex rel. Oklahoma Bar Ass'n v. Donnelly,

¶6 The record discloses that Respondent sought a continuance of the first mitigation hearing set February 27, 2009, representing that counsel for Complainant had no objection and alleging that a medical condition prevented him from attending any proceedings. The hearing was rescheduled to March 25, 2009, and Respondent failed to appear.

¶7 On March 26, 2009, Respondent appeared at the Oklahoma Bar Association office to explain that he had his dates mixed up and offered some documentation relating to his medical and mental health treatment. The mitigation hearing was reset for April 3, 2009. Following the April 3 hearing, the PRT concluded that there was no conclusive evidence that Respondent had a valid medical reason for obtaining continuance of the February 2009 hearing. It also noted that Respondent had made other misrepresentations to the PRT, namely that Complainant did not object to a continuance. Complainant did object to the initial motion for a continuance and sent Respondent a letter that it would object unless there was some verifiable proof that Respondent had a medical condition that would not allow him to attend the February 27 hearing. Respondent admitted to the PRT that he had no basis for representing that Complainant had no objection.

¶8 In attempting to explain his alcoholism and substance abuse problems, Respondent testified that he continues to drink "on occasion" and that he only attended AA meetings "when he needs it." The PRT found that Respondent had a substance abuse problem and that he continued to abuse alcohol and other substances, and that he attempted to excuse his behavior due to his addiction. The PRT found that Respondent also failed to show a diligent attempt to manage and control his bipolar disorder.

¶9 The PRT determined that Respondent's most recent felony and misdemeanor convictions clearly subjected him to discipline.

¶10 This Court may properly consider Respondent's prior discipline for purposes of enhancement of discipline. State ex rel. Oklahoma Bar Ass'n v. Mothershed,

¶11 Respondent has offered no evidence in mitigation as to his reputation as an attorney. Respondent continues to drink alcohol and abuse other substances and has shown a lack of judgment and repeated indifference to the law. At the hearing before the PRT, Respondent was asked if he wanted the panel and this Court to give him a third chance. Respondent responded by stating "yes, because that's what life is sir. If you make a mistake today, you'll learn from it. You make a different mistake tomorrow, you'll learn from that one. Life is about mistakes and getting a second chance to not make it."

¶12 This Court finds by Respondent's own testimony that he does not recognize his problems and that he does not seek and/or cooperate in treatment except on the occasions where he thinks "he needs it." While not bound by the recommendations of the PRT, this Court agrees that Respondent's actions have fallen woefully short of being rehabilitated. We find that he has failed to take any meaningful steps to address and resolve his addictions and their adverse impact on his fitness to practice law.

¶13 We have reviewed the record before us and find that Respondent's criminal convictions and other evidence constitute clear and convincing evidence of Respondent's unfitness to practice law. We adopt the recommendation of the PRT for a suspension of a period of two years and one day from the date this opinion becomes final. Respondent is further ordered to pay the costs of this proceeding in the amount of $711.09, within thirty days of the date this opinion becomes final.

¶14 In the event Respondent seeks reinstatement, it will be conditioned upon his continued sobriety, as it is essential to his rehabilitation. See State ex rel. Oklahoma Bar Ass'n v. Briery,

RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR
TWO YEARS AND ONE DAY; RESPONDENT ORDERED TO PAY COSTS.

¶15 EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT, and REIF, JJ., concur.

¶16 WATT, J., concurring in part; dissenting in part.
While I concur in the imposition of discipline, I would disbar this respondent.