State Ex Rel. Oklahoma Bar Ass'n v. Wolfe

OPALA, Justice,

dissenting from today’s sanction of suspension.

When overfocused (which occurs all-too frequently), collegiality-bred concerns for some residue of salvageable characteristics in offending legal practitioners — who, like this respondent, are rightly to be viewed as deeply scarred¹ rather than purely evil — tend to bring about a management style of discipline enforcement that is best described as a revolving door for de licensed offenders. These persons are first mustered out of the practice and then quicHy brought right back into it. Readmission quests that follow suspensions have met with an extraordinarily high incidence of success. Our current pattern of addressing lawyer recidivism, which I cannot countenance because it brings disrepute upon the legal profession, should inspire a search for improvement in the exercise of this court’s stewardship responsibility.

I

CRITICAL FACTS

A

THE ANATOMY OF LITIGATION

On June 2,1994 the OHahoma Bar Association [OBA or Bar] charged Earl W. Wolfe [Wolfe or respondent] with seventeen counts of misconduct in violation of the OHahoma Rules of Professional Conduct [ORPC]² and the Rules Governing Disciplinary Proceedings [RGDP].³ Respondent answered the complaint on June 23, 1994 and the OBA amended it on August 2, 1994, adding seven more ORPC and RGDP violations. Wolfe answered the amended complaint only after the OBA requested the Professional Responsibility Tribunal [PRT] to consider the allegations admitted.

At the March 1, 1995 PRT hearing the lawyers agreed upon the dispositive findings of fact and conclusions of law. Wolfe’s defense included allegations that he was psychologically impaired. Although respondent had consulted a psychologist before the hearing, that professional was not present to testify nor was a psychological evaluation offered in evidence. The PRT granted Wolfe a continuance to afford him an opportunity to present his evaluation. When the hearing resumed, Wolfe again failed to provide an expert assessment of his psychological infirmities.

The PRT adopted the stipulated facts and conclusions of law. The OBA urged that Wolfe be disbarred; respondent asked for probation. The PRT recommended a two-year suspension. This court imposes today a two-year-and-one-day suspension.

B

WOLFE’S HISTORY OF ABERRATIONAL CONDUCT IN HIS PRACTICE OF LAW

Wolfe’s psychological problems are mirrored in his violations of the standard of professional conduct binding on Oklahoma lawyers. His earlier misconduct resulted in a private reprimand in 1991 and a six-month suspension from practice in 1993.⁴ Today he admits guilt to twenty-four violations of the ORPC and RGDP. He has failed to keep his clients adequately advised, neglected their legal matters and has otherwise shown contempt for the rules governing the practice of law.

Wolfe has admitted failing to (1) respond to dismissal and summary judgment motions, (2) appear for hearings, (3) prosecute appeals, (4) file judgments and (5) inform his clients of his earlier suspension from practice. Three of the current counts against Wolfe involve his trust account. Checks, drawn on his trust account, were returned for insufficient funds. He used one client’s money to purchase a business asset. He also made personal use of a client’s funds (paid to him in trust to offset abstracting fees and court costs) by depositing them into his firm’s operating account. In one instance Wolfe failed to respond to a summary judgment motion. Judgment went to the defendant and Wolfe then appealed. When he failed to prosecute the appeal, the court dismissed the cause as abandoned.

Since 1991 Wolfe has “felt overwhelmed” and unable to manage his practice’s growth. He has demonstrated a clear proclivity for not meeting court deadlines and has failed to communicate with his clients on a regular basis. His conduct has also evinced paranoia in dealing with the OBA. He believes the OBA (and two federal judges) mistreated him and are to blame for his “bad attitude.” This mindset, he explains, was reflected in his persistent silence when he was called upon to respond to the OBA grievances.

Wolfe⁵, his lawyer,⁶ and an OBA investigator ⁷ all agreed that Wolfe “has a psychological problem.” Wolfe claimed that, among other things, ease overload, which produced great stress, tension, and depression, eventually resulted in his “burnout.” The OBA investigator, who had interviewed him numerous times, expressed concern for Wolfe’s depression. During the four years the OBA investigated complaints against Wolfe, he did not file any tew returns and neglected to answer thirteen OBA inquires. His gross income precipitously dropped from $475,000 in 1990 to $31,000 in 1994.

During the disciplinary process, respondent made no independent effort to contact a psychologist.⁸ It was only after his lawyer had made arrangements for an appointment that Wolfe met with one. That meeting preceded his initial hearing before the PRT by one day. Between the two hearings, Wolfe was referred to another psychologist whom he saw on four occasions. When the hearing resumed, Wolfe did not offer the second doctor’s evaluation, but did acknowledge the physician had recommended psychotherapy. Wolfe testified he had not decided if he would accept the recommended treatment.

II

MY APPEAL FOR THE BAR’S REEXAMINATION OF ITS PROCEDURE IN HANDLING LAWYER RECIDIVISM

The current disciplinary system fails to address recidivism problems. It does not look beneath the surface of recidivist lawyers’ infractions to assay their underlying behavioral causes. Quite often the lawyer’s unprofessional conduct is caused by psychological problems. When confronted by a pattern of seriously aberrant psychological behavior, as that unfolded by this case, the OBA must require psychological testing for a mare profound explanation and understanding of the lawyer’s obvious or admitted problems.

A

IF REINSTATED, THIS LAWYER WILL ONCE AGAIN REJOIN THE PROFESSION WITHOUT PASSING THE MUSTER OF A FULL PSYCHOLOGICAL EVALUATION

My concern today is that, without having Wolfe’s thorough psychological evaluation as he enters upon his period of disciplinary suspension, neither the OBA nor this court will, when later passing on his readmission quest, be able to make a critical assessment of progress, if any, he might have made while professionally inactive. The views of the two concurring justices plainly misperceive my dissent’s thrust. My message delivers neither a scathing critique nor a condemnation of the court. Its sole objective is to call for an in-depth reexamination of the process by which recidivist lawyers, who suffer from substance abuse or from psychological disorders, are sanctioned. Whether inadvertently or otherwise, my appeal for reform is mis-characterized as the voice of a “nattering nabob of negativism.”⁹ In more objective terms, the changes I counsel should cast me in the role of standard-bearer for a badly-needed constructive solution to the vexing problem of professional recidivism brought about by profound psychic or chemically-induced disorders. Because I do not plead guilty to indicting the court’s extant disciplinary jurisprudence, I find no need to comment on the concurrence’s excessively and needlessly defensive tone.

Wolfe represents the unique world of disturbed and deeply-scarred people who require legal treatment different from that accorded him today. A pre-sanction evaluation of the lawyer’s psychological status should be a conditio sine qua non. This lawyer, if ever reinstated, will be returning to his profession without giving the Bar a meaningful comparative insight into his before-and-after psychological profile.

Much like the Bar, the medical profession is concerned with the ongoing competence of practicing physicians. In response to the felt presence of high levels of stress, depression, and substance abuse (above that present in the general population), state medical boards have taken a proactive approach to dealing with impaired doctors.¹⁰

The Bar’s Lawyers Helping Lawyers Committee [LHL or committee] is a program designed to (a) assist, through direct contact, lawyers impaired by substance abuse, depression, stress and other practice-related malaise and (b) assure the public of competent legal representation. We have taken judicial notice of the committee’s existence and praised its contribution as an effective tool for aiding a lawyer’s recovery from chemical dependence, stress and depression.¹¹ In the past, we have ordered offender participation in LHL activities as part of a suspension order.¹² Although the committee was approached to help Wolfe if he should receive a probationary sentence, he made no personal effort to secure its assistance.

With no mental evaluation to draw from, I am called upon today to cast a vote by shooting in the dark and guessing that Wolfe would improve or be cured during his suspension. In this posture, I prefer to avoid excessive preoccupation with purely human rescue concerns and err on the side of public safety by opting for the respondent’s disbarment. The sanction I prefer would prevent him from launching a reinstatement quest for at least five years. Should he seek re-entry, the five-year, minimum post-disbarment period of mandated professional inactivity would be well-nigh essential for tracking and identifying Wolfe’s behavioral patterns. Without the aid of a pre-sanction psychological evaluation based on testing that would diagnose the root causes of respondent’s problems, the mild discipline chosen by the court is far too risky to satisfy my concerns for public safety.

The universe of case law is ill-suited for demonstrating the system’s efficacy to deal with recidivism among the class of lawyers who fall under the rubric of deeply-scarred multiple offenders.' Identification of the problem is currently more elusive than the cure. While the OBA does keep an individual lawyer’s discipline record, it does not compile statistics on the number of practicing recidivist lawyers, their eventual improvement or the progressive deterioration of their deviant pattern. Currently, no one meaningfully tracks the data that would enable us to pass upon the success or failure of the present-day system of addressing recidivism.

No attempt was made by the OBA to secure a complete psychological evaluation of the respondent before the PRT made its recommendation. As the applicable procedure stands today, Wolfe will need no psychological evaluation to reenter the profession. Our current policy clearly fails to ensure that only unimpaired lawyers are sent back into practice.

B

THE INTEGRITY OF THE OBA’S DISCIPLINARY REGIME REQUIRES THAT (A) A PSYCHOLOGICALLY DISTURBED LAWYER BE EVALUATED BY AN EXPERT BEFORE DISCIPLINE IS ADMINISTERED AND (B) REINSTATEMENT QUESTS BE ACCOMPANIED BY A LIKE EVALUATION, TO BE MADE CONTEMPORANEOUSLY WITH THE APPLICATION FOR READMISSION

I would counsel that for offenders like Wolfe two psychological evaluations be required — one in the pre-sanction stage of the process (before the PRT makes its recommendation) and another at the time of reinstatement quest. A comparison of the recidivist lawyer’s expert assessments would be invaluable to this court. These evaluations should be mandatory when it becomes apparent that a lawyer’s fitness to practice is affected by destructive psychological forces. Some form of such disorder is admittedly present in the respondent. It went undiagnosed and untreated, escaping expert assessment, even though the record demonstrates an undented pattern of disturbance. The court sanctions Wolfe without any meaningful insight into his extensive psychological disability. When a respondent acknowledges the presence of a psychological problem, the PRT should allow adequate time for the lawyer to contact a counseling center suitable for the affliction’s treatment and secure LHL’s supervision. The disturbed respondent must be willing to admit that a problem exists and that help is needed. It is not the treatment arm’s responsibility to make the initial contact; that should be left to the willing respondent. In State ex rel. Oklahoma Bar Association v. Donnelly,¹³ this court enthusiastically approved the offender’s voluntary participation in the LHL program as part of the sanction imposed.

The solution I propose (disbarment) would enable the OBA better to assess respondent’s rehabilitation progress and fitness before his reentry into practice. Its considered evaluation of the respondent’s eligibility for reinstatement would cover an appreciably longer period than that allowed by today’s suspension for two years and one day. My solution is significantly influenced by fear of the unknown. On this record, no one should even dare speculate what Wolfe’s present psychological problems may be, much less predict the shape they might take when he knocks on the Bar’s door for end-of-suspension re-admission.

Ill

SUMMARY

I would not let this lawyer make a disciplinary exit from the Bar without leaving in its files a much-needed trail in the form of a comprehensive professional assessment of his present psychic affliction. Neither would I allow his reinstatement to take place before a comparative study is made of his condition between the time of the discipline’s administration and the temporal point of his reinstatement quest. Because the Bar has no policy for requiring deeply-scarred lawyers, like the respondent, to undergo a meaningful evaluation of their professional disability, I would err on the side of public safety by disbarring Wolfe and putting a distance of a full five-year-long period between his exit and the possibility of reentry.

1 . By “deeply scarred” X mean that these persons have been affected by substance abuse or by destructive psychological forces.

2 . The OBA's complaint listed violations of Oklahoma Rules of Professional Conduct, 5 O.S.1991 ch. 1, app. 3-A, Rule 1.3, 1.4, 1.15, 3.1, 8.1(b) and 8.4(b) & (c).

3 . The OBA listed in its complaint violations of Rules Governing Disciplinary Proceedings, 5 O.S.1991 ch. 1, app. 1-A, Rules 1.3, 1.4, 5.2 and 9.1.

4 . On June 15, 1993 this court suspended Wolfe from the practice of law for six months, from November 1993 to February 1994, for his neglect of clients’ business and failure to respond to the OBA’s grievance investigations. State ex rel. Okl. Bar Ass’n v. Wolfe, Okl., 864 P.2d 335, 336 (1993).

5 .See PRT hearing transcript, pp. 279-86 and 330-33.

6 . See PRT hearing transcript, pp. 61-70 and 214— 15.

7 . See PRT hearing transcript, pp. 101-02.

8 . Wolfe received counseling in 1991 and 1992 when he was executive vice president and general counsel of Heart to Heart Ministries, a Christian counseling service. He talked with one of its counselors and its minister periodically about his personal difficulties.

9 . Speech hy Spiro T. Agnew, Vice President of the United States of America, in San Diego, Cal. (Sept. 11, 1970).

10 .George M. Bohigian, MD et al., Substance Abuse and Dependence in Physicians: An Overview of the Effects of Alcohol and Drug Abuse, 91 Mo. Med. 233 (1994). State medical boards are taking different approaches to solving the problem of substance abuse by physicians. Some boards offer treatment (instead of public disciplinary action) to willing physicians who complete the full program. The Georgia Medical Board developed a booklet identifying and outlining ten "problem” categories, including mental disorder, behaviorally disruptive pattern, substance-related disorder, and cognitive or other problems associated with age. A committee on physician impairment of the Federation of State Medical Boards recommended that when the proposed policy is adopted it should include notice (to the state board) if affected physicians leave treatment against the provider's medical advice. Rebecca Voelka, Finding Effective Treatment for Impaired Physicians, 272 JAMA 1238 (1994).

11 . State ex rel. Okl. Bar Ass’n v. Donnelly, Okl., 848 P.2d 543, 545 n. 3 (1992); State ex rel. Okl. Bar Ass'n v. Carpenter, Okl., 863 P.2d 1123, 1128 n. 7 (1993).

12 . State ex rel. Okl. Bar Ass’n v. Hogue, Okl., 898 P.2d 153, 155 (1995).

13 . See supra note 11 and accompanying text.