Laches Does Not Prevent Bar Sanction

A lengthy decision of the Oklahoma Supreme Court rejected a laches defense and imposed disbarment of an attorney for multiple counts of ethics voilations.

 Respondent’s reliance upon laches is without merit. Assuming laches, an equitable affirmative defense to a claim in equity, could apply in a lawyer disciplinary proceeding which is a non-civil sui generis proceeding, then respondent as the party raising the defense would have the burden of proof  showing unreasonable delay and prejudice to respondent. Interposing laches as a defense requires proof of unreasonable delay by the party pressing the claim and prejudice to the party asserting the defense. Laches does not arise from a mere delay or lapse of time. A party’s failure to show unreasonable delay or prejudice will be sufficient to deny the laches defense. This principle appears in three lawyer disciplinary proceedings where a respondent either failed to show delay was unreasonable because it was caused by respondent or a respondent failed to show prejudice resulting from delay.

One charge

Respondent had a dispute in a medical clinic parking lot, and it resulted in a criminal charge against respondent for striking a pedestrian while driving his truck. The dispute involved respondent, his passenger who is also his legal assistant/secretary/paralegal, and the pedestrian. The pedestrian consulted with an Assistant District Attorney and agreed the criminal charge against respondent could be dismissed in the interests of justice if respondent obtained counseling or education for self-control.

The criminal charge resulted in a professional disciplinary proceeding against respondent. The PRC offered a private reprimand conditioned upon respondent’s successful completion of certain terms and conditions for a one-year period in the attorney diversion program. The terms and conditions included no additional professional misconduct. The Bar presented evidence respondent committed an act of misconduct during the one-year diversion period. The PRC authorized a complaint based upon the allegations relating to the parking lot dispute which is presented as Count One of the second amended complaint.

In summary, the testimony of the witnesses to the event, the law enforcement investigators, and the prosecutors is more credible than respondent and his legal assistant on the issue of what happened in the parking lot. The allegations of Count One raise several criminal statutes, and the trial panel concluded respondent violated Rule 8.4(b) of the Oklahoma Rules of Professional Conduct (ORPC), by committing a criminal act. We decline to make a determination whether a criminal act occurred, but use the same conduct to conclude a different ethical rule was violated.

The violation

A witness employed at the clinic described respondent’s use of his pickup in “playing chicken” with a pedestrian by starting and stopping his vehicle, revving the engine, and squealing the truck’s tires. Another clinic witness testified her impression at the time was that respondent was trying to hit the pedestrian with his truck. The testimony of these two witnesses, clinic employees, is more credible than the testimony of respondent’s legal assistant. Respondent disputes the pedestrian’s claim respondent’s truck made contact with her body. The evidence is clear that the pedestrian was also upset and slapped respondent’s truck. We find the pedestrian’s testimony more credible on the issue whether respondent’s truck made contact prior to the pedestrian slapping his truck.

The evidence showed respondent’s conduct in the parking lot resulted in both a public news story as well as a criminal charge. A witness explained a dismissal of a criminal charge “in the interests of justice” could occur for many different reasons, and such dismissal does not necessarily mean the alleged criminal act did not occur. The evidence is clear and convincing that respondent was aware while still in the parking lot a pedestrian claimed she had been hit by his truck. The evidence is clear and convincing that respondent left the scene where a person was claiming he caused the event. After leaving the parking lot he relied on his legal assistant to contact the police.

The Oklahoman reported on the arrest.

There were several other counts of alleged misconduct involving client matters. The court found a charge of failure to supervise an employee was not supported by clear and convincing evidence.

Sanction

Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct, but discipline must be decided on a case-by-case basis. The respondent’s misconduct has similarities to the rules violated by respondents in both State ex rel. Oklahoma Bar Association v. Parker, 2015 OK 65, 359 P.3d 184, and State ex rel. Oklahoma Bar Association v. Rowe, 2012 OK 88, 288 P.3d 535, as described in State ex rel. Oklahoma Bar Association v. Burton, 2021 OK 9, ¶¶41-2, 482 P.3d 739, 755. The respondents were disbarred in both Parker and Rowe. Respondent’s case does not mirror every misconduct as in Parker and Rowe, but respondent has misconduct not present in those two cases. The proper discipline is to disbar respondent.

(Mike Frisch)