No Summary Discipline For False Report Misdemeanor Conviction

Summary discipline is not warranted for a misdemeanor conviction, according to a decision of the Oklahoma Supreme Court

Respondent is an attorney licensed to practice law and a member of the Oklahoma Bar Association. This proceeding was commenced by the Oklahoma Bar Association pursuant to Rules Governing Disciplinary Proceedings (RGDP), Rule 7.1, due to respondent’s conviction for the misdemeanor of false reporting a crime in violation of 21 O.S.2011, § 589. Rule 7.1 states a lawyer shall be subject to summary professional discipline when the lawyer is convicted of a crime “which demonstrates such lawyer’s unfitness to practice law.”  The Oklahoma Bar Association seeks public censure as summary professional discipline for respondent, although the Bar Association also states respondent’s conviction does not demonstrate unfitness to practice law. We conclude respondent’s conviction does not demonstrate unfitness to practice law and deny the Oklahoma Bar Association’s application for summary discipline.

Facts

The McAlester Fire Department arrived at a residence to extinguish a fire in its kitchen. An adult female left the residence after stating to a fireman she needed to pick up children at school. A fireman checked for additional fire or persons while moving through the residence and he observed “a possible handgun” on a bed near “drug paraphernalia.” The fire department requested the presence of a police officer because of this observation. The fire department continued to work at the scene.

A responding police officer from the McAlester Police Department arrived and was told an adult female resident previously left the open premises. The police officer was led into the open residence and shown the location of the observed handgun and drug paraphernalia. The police officer exited the residence and telephoned an investigative officer so that the investigator could obtain a search warrant.

The woman who left the residence telephoned the owner of the residence, S.D., and the owner arrived at the residence accompanied by another individual, B.B., who was identified as a purchaser of the residence. The owner did not reside at the residence at that time. Firemen and police officers were at the residence when S.D. and B.B. arrived, and both individuals were denied access to inside the residence while the police and fire personnel were securing the residence and working the scene of a fire.

The respondent arrived at the residence and he had a discussion with S.D., B.B., and a police officer. The police officer informed respondent what had been observed in the residence and a police investigation had commenced. The officer directed respondent to leave the premises. Respondent stood on the street adjacent to the residence and telephoned his law partner. Respondent’s law partner went to the Pittsburg County Courthouse and appeared before an Associate District Judge for the purpose of making objections to the application for a search warrant of the residence. The judge signed the search warrant after hearing an informal argument from respondent’s law partner.

The respondent returned to the residence from the adjacent street, learned a search warrant had been obtained, and he asked a police officer for a copy of the search warrant for the non-resident owner of the residence. The police officer told respondent a search was commencing, declined to give respondent a copy of the search warrant at that time, and respondent was told he should leave the residence or be arrested.

Respondent returned to the adjacent street and telephoned the McAlester Police Department. He identified himself as the caller and the owner of the residence as the complaining party for the purpose of his telephone report. Respondent requested a trespass charge be lodged against the police officers executing a search at the residence because he requested a copy of the search warrant and was not provided a copy from the officers at the residence. Respondent then spoke briefly with an investigator at the residence, and respondent left the scene while the police officers continued their search.

The search occurred on September 16, 2020. A few weeks later on November 3, 2020, respondent was arrested by several McAlester police officers inside the Pittsburg County Courthouse as he left a courtroom after appearing for a client in a different matter. A jury trial of four days was held in the District Court of Pittsburg County on two misdemeanor counts against respondent, obstructing an officer (21 O.S. § 540) and false reporting a crime (21 O.S. § 589). The jury found respondent guilty of the misdemeanor of false reporting a crime. A five-hundred dollar fine and court costs were imposed. Respondent was acquitted on the charge of obstructing an officer. The judgment and sentence was entered in March 2021, respondent paid the fine, and he did not appeal the conviction.

The court’s view of the conviction

Respondent’s telephone call to the McAlester police officers included respondent’s name, identification of his client, and a stated reason or purpose for the telephone call. The McAlester police officers were not impressed with respondent’s stated reason for the telephone call, i.e., his assertion of a trespass. No trespass charge was made against a police officer. After respondent’s telephone call to the McAlester Police Department, an investigator at the scene informed of the telephone call simply told respondent to go away or be arrested. Respondent’s telephone call was unsuccessful for respondent’s stated purpose and he left the scene.

Respondent was found guilty of making a false report of a crime by a jury where he practices law. The jury acquitted respondent on the obstruction charge. We agree with the Bar the facts related to respondent’s conviction do not show deceit causing serious consequences for law enforcement as in Ezell. We conclude respondent’s conviction does not demonstrate unfitness to practice law.

Kane, V.C.J. (by separate writing); Combs, (by separate writing), and Kuehn, JJ., dissent.