Not OK In Oklahoma
A public censure and a six-month suspension has been ordered by the Oklahoma Supreme Court.
Count One involved a client who was a law student
The complainant and respondent agree that Ms. A came to Mr. Smalley’s office after hours on three nights, October 27th, 28th, and 30th, during the time Mr. Smalley was preparing for the pretrial conference. On each occasion the two engaged in a sexual act.
Regarding contested facts, Ms. A testified that Mr. Smalley used force on that first night. She also testified that she did not resist on those three nights because she wanted Mr. Smalley to continue to represent her and also because she did not have the funds to pay for that representation. Mr. Smalley testified that Ms. A was the aggressor and that he told her to stop, tried to push her away, told her “no, no,” but she would not stop. He testified that to stop her he would have had to use force and he did not want to do that.
During that week of settlement negotiations and trial preparation, Ms. A testified Mr. Smalley told her she did not have sufficient funds left in his lawyer’s trust account to go to trial. On October 31, 2014, Ms. A testified he told her that he reached a settlement based upon the custody evaluator and guardian ad litem’s recommendation that the child’s father should receive custody of their child. She testified she did not agree with such a settlement, and then she retained new counsel that weekend.
Ms. A testified that she had been dating her new counsel and that she had sexual relations with him before and during the time he represented her. She paid him $5,000.00 by cashing out a retirement account. She testified that he took the case on the condition she was not lying.
Mr. Smalley presented evidence from another man with whom she had a child. He testified they had been engaged. But, for the previous fourteen months, he had sole custody of their child. Ms. A did not have visitation rights. He testified that in the fall of 2015 Ms. A revealed to him, “She went to his [Mr. Smalley’s] place of business and almost had to force herself on him. And she said that she performed oral sex on him.” He said she told him it took more than one attempt. Mr. Smalley’s attorney asked about her demeanor, and he answered, “She was smirking.” He continued,
“She told me that she had planned this long before she actually acted on it. She told me that the first step that she did was she would grab his hand in court while they were having hearings on her son’s case. And she had set the whole thing up so that she could have — she could declare a mistrial in her son’s case if she were to lose. She also brought up civil suits.”
He further testified that Ms. A said this was a way to get out of paying her attorney’s fee.
Count Two
MP is a single mother of four children, between the ages of 4 and 12 in 2009, when she filed for divorce. One child, who had severe muscular dystrophy, died in 2017. In March 2010, Judge Barry Hafar appointed Mr. Smalley Guardian Ad Litem in the case. During that time Mr. Smalley met with MP and her children several times.
MP testified that while serving as Guardian Ad Litem, Mr. Smalley invited MP and her children to his home for a pool party. MP reluctantly accepted after he assured her that the invitation was not improper. Nevertheless, this invitation upset MP’s husband when he learned about it. Mr. Smalley assured MP that the family’s presence at the party would not cause a problem, and that the judge had assured him that he would not be removed from his court role. MP feared losing custody of her children. He told her he had known the judge for years, that they went to law school together, spent time together, attended holiday parties and golfed together. In other words, they were good friends. Mr. Smalley questioned some of the details in MP’s testimony, but not her veracity.
MP also testified that at some time after the pool party Mr. Smalley asked her to come over and drink wine and sit in the hot tub. She declined. She believed this professional relationship had taken a bad turn and again feared her ex-husband would find out and use it against her.
Finally, on October 31, 2011, Mr. Smalley sent MP a text message that included his request for his “treat.” MP tried to redirect the conversation. At the end of the text exchange he wrote an instruction to delete the messages. The Bar Association forensically located this text chain on her old phone, which was not working at the time she turned it over to the investigator. Mr. Smalley testified that he did not intend for the messages to be taken seriously and regretted that MP interpreted them that way. He admitted that they were inappropriate.
Sanction
The trial panel found that Mr. Smalley’s representation of both Ms. A and MP’s children were materially limited by his personal interest. In the case of Ms. A, the trial panel concluded that Mr. Smalley showed an inability to set boundaries with Ms. A and should have immediately withdrawn from representation given the facts to which he testified. Even if Ms. A was the aggressor, as alleged by Mr. Smalley, he should have never met with her again, and certainly not alone and after office hours. The additional two sexual encounters were preventable and inexcusable.
…the Trial Panel found that Mr. Smalley practiced family law for twenty years without any prior formal complaints, and that he enjoyed a good reputation in the legal community as a competent family law attorney that colleagues solicit his input and advice. The Panel concluded that Mr. Smalley showed remorse, but that the hearing revealed facts tending to show the evidence of remorse has some inconsistencies. He did fully cooperate with the General Counsel’s office with regard to both responding to the grievances and attending interviews. The Panel also concluded that his actions do not indicate an ongoing pattern of improper conduct.
(Mike Frisch)