Text Messages Call For More Than A Verbal Rebuke

The Oklahoma Supreme Court suspended an attorney for one year because

 a standalone verbal rebuke from this Court risks being too easily brushed aside. 

The facts

 Dunivan was admitted to the Oklahoma Bar Association (OBA) in 2002. In recent years, he has maintained a general law practice in Perry, Oklahoma. Dunivan married his now-former wife, Ginger Swann, in 2008. In May of that year, Dunivan was involved in a verbal altercation with Swann’s ex-husband during a child-custody exchange in Texas. Because of that encounter, the ex-husband filed a police report and–later on–a grievance against Dunivan with the OBA. Dunivan was not charged in the Texas incident. In March 2009, however, Dunivan was arrested in Bartlesville for driving under the influence. As a result of both the Texas-based grievance and Dunivan’s self-reported DUI arrest, the OBA’s Professional Responsibility Commission issued a private reprimand to Dunivan in August 2010. The Professional Responsibility Commission conditioned Dunivan’s reprimand upon his successful completion of anger-management counseling and a substance-abuse assessment.

While married, Dunivan and Swann had one child together: S.D., a son, who is now nine years old. Shortly after S.D.’s birth, Dunivan and Swann divorced. It is abundantly clear from the record that their divorce–and, in particular, their subsequent battle for custody of S.D.–was extraordinarily bitter, protracted, and painful for both parties. As hostilities escalated between Dunivan and Swann, the Blaine County District Court issued a protective order on December 4, 2014 that prohibited Dunivan from contacting Swann, with the sole exception that “[t]he parties may send texts and/or emails to each other concerning visitation with their minor child.” The protective order also required Dunivan to remain away from Swann’s residence in Watonga.

On March 25, 2016, following one of many disagreements over his visitation with S.D., Dunivan sent a series of 17 text messages to Swann. These text messages have been variously–and accurately–described as “churlish,” “vexatious,” “ugly,” “vulgar and mean-spirited,” “unkind and immature,” “out of line,” and “written in anger and haste.” After receiving the texts, Swann filed a report with the Watonga Police Department, alleging a violation of the protective order. As noted by the investigating officer, Dunivan’s text messages to Swann “were of a harassing nature and had very little to do with Mr. Dunivan’s visits with their son.” Thereafter, Dunivan was charged in Blaine County District Court (Case No. CM-2016-83) with a misdemeanor protective-order violation, in contravention of 22 O.S.2011 § 60.6. The feuding with Swann did not end there, and Dunivan was later charged with two more protective-order violations in Blaine County in June and December 2016–once for allegedly sending Swann another string of bizarrely harassing text messages in which he appeared to impersonate their young son (Blaine County District Court Case No. CM-2016-117), and then for allegedly approaching her off-limits Watonga residence in a vehicle with his then-girlfriend (Blaine County District Court Case No. CM-2016-210).

On December 4, 2017, Dunivan entered an Alford plea to misdemeanor violation of a protective order in Blaine County District Court Case No. CM-2016-83, stemming from his text-message harassment of Swann on March 25, 2016. As part of a negotiated plea agreement, the State dismissed the two remaining Blaine County cases charging Dunivan with the additional protective-order violations. Dunivan received a one-year deferred sentence, subject to the conditions–as relevant here–that he would obtain a psychiatric evaluation, refrain from committing any further protective-order violations, and “not possess, consume or purchase alcoholic beverages.”

Also

At his June 5, 2018 PRT hearing, Dunivan would also admit to drinking some beers–“one or two”–about “[t]wo or three weeks” before the hearing. He acknowledged at the hearing that doing so plainly violated a condition of his deferred sentence.

Sanction

We acknowledge the fact that Dunivan has endured an intensely difficult period in his personal life. But an attorney must adhere to a higher standard of conduct, notwithstanding the issues he is facing in his private life. “Membership in the Bar is a privilege burdened with conditions. A fair private and professional character is one of those conditions. Compliance with that condition is essential at the moment of admission and it is equally essential afterwards.” State ex rel. Okla. Bar Ass’n v. Murdock, 2010 OK 32, ¶ 14, 236 P.3d 107, 113–114. As Dunivan himself aptly expressed at the PRT hearing: “[W]hen a person is a lawyer, they’re a lawyer all the time. It’s not just in the courtroom or not just in the office. It’s wherever they go. And the public sees that.” Under the circumstances presented, we find Dunivan should be disciplined under RGDP Rule 7, RGDP Rule 1.3, and ORPC Rule 8.4(b)…

We conclude that the appropriate discipline for Dunivan is suspension for a period of one year, to be imposed retroactively to December 18, 2017, the date on which his interim suspension began.

Three justices would make the suspension prospective. (Mike Frisch)