Probation Completed with Dissents

A majority of the Oklahoma Supreme Court concluded that an attorney had substantially complied with deferred sanction conditions imposed as a result of a driving under the influence pleas

A summary disciplinary proceeding resulting from Respondent’s pleas of guilty and no contest to two felony charges for driving under the influence of alcohol and multiple misdemeanor charges resulted in the Court placing him on a deferred suspension of two years with certain probationary rules. After two years, the Oklahoma Bar Association filed a Notice to Court Regarding Respondent’s Probation, contending that Elsey failed to cooperate or otherwise complete an alcohol test or urinalysis as requested by the Oklahoma Bar Association. This Court ordered an evidentiary hearing. The Trial Panel recommended this Court place Elsey on a deferred suspension for an additional six months, subject to certain conditions. We hold that Respondent completed the terms of his probation, and we dismiss his two-year deferred suspension.

Conclusion

Considering the totality of Elsey’s conduct since his last alcohol-related offense and the goals of discipline, we do not believe that the Trial Panel’s recommendation to extend Elsey’s conditional suspension is appropriate. This Court has now monitored Elsey’s behavior for over five years. We do not take lightly Elsey’s criminal history of driving a motor vehicle while intoxicated, which spans over two decades. We also admonish Elsey for his inadequate attempts in obtaining a timely alcohol test as requested by the OBA. But we recognize his efforts (especially during the COVID-19 pandemic) to bring his problems under control and reach his goal of sobriety. We have held that an attorney’s continued sobriety is the key to his rehabilitation. State ex rel. Okla. Bar Ass’n v. Rogers, 2006 OK 54, ¶ 21, 142 P.3d 428, 436. The Court cannot monitor Elsey indefinitely, and at some point, it becomes the attorney’s responsibility to maintain his sobriety and choose to be part of AA and LHL, obtain a sponsor, and abide by the ORPC. Id. If he does not do so and performs any future acts of misconduct, Elsey will face even harsher discipline from this Court

Justice Combs

Based on the lack of both meaningful alcohol testing and AA attendance proof, the PRT recommends that Respondent be subjected to an additional 60 days of supervision with stricter probationary rules that would require alcohol testing at least twice per month and submission of AA attendance records. Id.

I cannot join the majority’s failure to impose discipline when there is no proof of Respondent’s rehabilitation. I stand by my original dissent, which provided ample warnings about the perils of deferring final discipline and imposing probationary rules. Further supervision will be no more effective than the prior supervision we mandated or than the probation that Respondent violated in his criminal cases. Respondent’s failure to comply with our probationary rules should result in discipline. I would still suspend Respondent for two years and one day.

Justice Darby

I joined Justice Combs in his dissent in this Court’s prior decision concerning the potential discipline of Mr. Elsey. By today’s pronouncement, the Court removes that potential for discipline, and Mr. Elsey once again has dodged receiving the consequences he deserves for harming the bar by continuing to drink and drive. For a second time, Justice Combs accurately explains why the first majority opinion was bad, and how today’s decision is even worse.

Mr. Elsey’s conduct reflects adversely on the legal profession in Oklahoma, to say the least.

(Mike Frisch)