State Ex Rel. Oklahoma Bar Ass'n v. Andre
State Ex Rel. Oklahoma Bar Ass'n v. Andre
Opinion of the Court
I.
FACTS
¶ 1 In a January 26, 1996 complaint Phillip M. Andre of Oklahoma City was charged with one count of misconduct alleging numerous disciplinary violations. The alleged misconduct under review occurred during Andre’s representation of his wife in a post-divorce dispute over the visitation and custody rights of his step-daughter’s biological father.
¶ 2
¶ 3 During the course of that representation, Ms. Kimberly Seng supervised the minor child’s visitation with the biological father. Andre’s conduct toward Ms. Seng was rude and manipulative. During the hearing the court admonished him for improper cross-examination of Ms. Seng. Later Andre, his wife and Ms. Seng were on an elevator where a verbal exchange took place between Ms. Seng and Andre’s wife. Following Ms. Seng’s testimony that was not favorable to Andre’s interest, Andre and his wife made multiple contacts with Ms. Seng’s employer and with several other employees of her employer to complain both about Ms. Seng’s supervision and her testimony. During those contacts, Andre expressed a desire to have Ms. Seng fired.
¶ 5 The trial panel found by clear and convincing evidence that (a) respondent’s conduct violated Rules 1.7(b),
II.
VIOLATIONS OF THE RULES OF PROFESSIONAL RESPONSIBILITY
¶ 6 In a bar disciplinary proceeding this court functions in the role of adjudicative licensing authority exercising exclusive original jurisdiction.
¶7 Andre conceded some violations before the hearing.
¶ 8 An attorney must be able to advocate his client’s cause untrammeled by a
¶ 9 Andre doubtless went beyond the allowable bounds of aggressive advocacy in the course of his wife’s representation. Lawyers have an ethical duty to advance the cause of the client. Their equally solemn duty is to comply with the standards of professional conduct.
¶ 10 Andre’s conduct was abusive of and intrusive into Ms. Seng’s life. He and his wife verbally attacked Ms. Seng for her stance adverse to their interests. Ms. Seng’s employment was not at all interconnected with her testimony in the custody hearing. Yet Andre and his wife continuously pressed their complaints to her employer, making Ms. Seng fearful of losing her job.
¶ 11 This is unethical conduct in several respects. First, Andre’s actions toward Ms. Seng had no legitimate objective; their only purpose was to embarrass or burden her. Second, his conduct was prejudicial to the administration of judicial process in that he was retaliating against her for giving testimony adverse to his cause. Finally, his actions can reasonably be termed as bringing discredit upon the legal profession.
¶ 12 Harassing Ms. Seng is conduct which cannot be condoned. RGDP Rule 1.3 and ORPC Rules 4.4 and 8.4
¶ 13 Andre also violated the standards for professional conduct when he misrepresented the facts in his answer to the complaint by denying his harassment of Ms. Seng through her employer. Rule 5.2 of the RGDP makes such conduct subject to discipline.
¶ 14 Andre’s conduct after the filing of the grievance shows that he refuses to assume responsibility for his offending actions. He misrepresented the facts in his answer; he showed up late for the hearing before the trial panel; and he failed to deliver a complete transcript needed as an exhibit for that hearing. Even after the trial panel gave Andre more time to advance his defense by allowing him to file a brief, Andre neglected to avail himself of the afforded opportunity.
¶ 15 Punishment is not the primary purpose of a disciplinary proceeding. The objective here is purification of the legal profession and protection of the courts and the public against substandard practitioners.
¶ 16 Andre’s acts warrant discipline not for punishment’s sake, but in the interest of restoring integrity to the legal profession and to deter him and others from engaging in similar acts of grave misconduct. Because respondent has shown no inclination to assume responsibility for his admitted wrongful conduct toward both Ms. Seng and the trial panel, public censure would be too mild a sanction. A period of suspension would best protect the courts and the public from respondent’s offending behavior.
III.
SUMMARY
¶ 17 Upon de novo review, this court finds that for lack of evidentiary support the first part of count one — which refers to conflict of interest — does not warrant discipline. As for the latter parts of count one — which refer to respondent’s dealings with a third person and to his misrepresentations in the response to the Bar grievance — respondent’s conduct warrants the imposition of a 60-day suspension and an order for payment of costs in the total sum of $913.89.
. Ms. Seng's employment bore no connection to the subject matter of the proceedings in which
. ORPC Rule 1.7(b) states:
A lawyer shall not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation....
. ORPC Rule 4.4 states:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
. ORPC Rule 8.4(c)-(d) states:
It is professional misconduct for a lawyer to:
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(c) engage in conduct involving dishonesly, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice....
. RGDP Rule 1.3 states:
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 disciplinaiy action....
. RGDP Rule 5.2 states:
After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall ... (2) file and serve a copy of the grievance ... upon the lawyer, who shall thereafter make a written response which contains a foil and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer’s alleged misconduct.... Deliberate misrepresentation in such response shall itself be grounds for discipline....
. See Oklahoma Bar Assn. v. Lloyd, 1990 OK 14, 787 P.2d 855, 858; Oklahoma Bar Assn. v. Stubblefield, 1988 OK 141, 766 P.2d 979, 982.
. Id.
. Although the agreed findings include Andre's confession of violating Rule 1.7(b) by representing his wife, we find the admission unsupported by the proof and hence subject to rejection. One's confession of a disciplinaiy violation must be predicated on facts showing the respondent's culpability. See in this connection Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).
. See supra note 2.
. A lawyer can serve but one master. There was here neither proof of any constraint on Andre’s representation of his client with unswerving loyalty, nor any showing that he was serving interests contrary to hers. See Oklahoma Bar Association v. McNaughton, 1986 OK 25, 719 P.2d 1279, 1281.
. See Nix v. Whiteside, 475 U.S. 157, 168, 106 S.Ct. 988, 995, 89 L.Ed.2d 123 (1986).
. See Nix, supra note 11, 475 U.S. at 166, 106 S.Ct. at 994.
. See supra notes 3-5.
. See supra note 6.
. See Oklahoma Bar Assn. v. Denton, 1979 OK 116, 598 P.2d 663, 665.
. See Oklahoma Bar Assn. v. Miskovsky, 1997 OK 55, 938 P.2d 744, 751.
Concurring in Part
with whom SUMMERS, Vice Chief Justice, and ALMA WILSON and WATT, Justices, join, concurring in part and dissenting in part.
I would adopt the recommendation of the trial panel that the respondent be given a public reprimand.
Reference
- Full Case Name
- STATE of Oklahoma Ex. Rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Phillip M. ANDRE, Respondent
- Cited By
- 7 cases
- Status
- Published