¶ 1 On September 18, 2012, we promulgated State ex rel. Oklahoma Bar Ass'n v. Moon, 2012 OK 77, 295 P.3d 1. In Moon, the attorney was publicly censured and a deferred suspension period of two years and one day was imposed. During the period of suspension, Moon was ordered to: refrain from any and all use of alcohol or mindaltering substances; not partake of any illegal drugs; maintain participation in Alcoholics Anonymous, attend weekly meetings; sign and comply with conditions of a contract with Lawyers Helping Lawyers; complete any outpatient treatment program in which he was enrolled; waive all questions of confidentiality permitting notification to the General Counsel of the Oklahoma Bar Association of any default in terms of probation or deferred suspension; and pay costs of $1,459.55.
¶ 2 The complainant, Oklahoma Bar Association (Bar Association), filed an application for an order of interim suspension on September 19, 2012. The complaint and request for suspension was based on the filing of a criminal information on September 18, 2012 charging the respondent, Lewis B. Moon (Moon/attorney), with impersonating a police officer and disturbing the peace. On October 15, 2012, we issued an order in the cause referring the matter to the Professional Responsibility Tribunal for an expedited hearing on the suspension request.
¶ 3 On October 19, 2012, the Bar Association filed a Notice of Respondent's Breach of Terms of Deferred Sentence alleging that Moon, while in a state of intoxication, assaulted and battered a fellow attorney. An affidavit supporting the allegations also asserted that Moon threatened members of the attorney's family. The incident, which occurred on October 7th, is currently under investigation by the Oklahoma County District Attorney's Office.
¶ 4 In an attempt to protect the public, while at the same time affording Moon his due process, we determine that the issue of the attorney's breach of conditions imposed by State ex rel. Oklahoma Bar Ass'n v. Moon, 2012 OK 77, 295 P.3d 1, which may support suspension for a period of two years and one day, be combined with the matters currently before the Professional Responsibility Tribunal in the Interim Suspension proceeding. During the combined proceedings, the Professional Responsibility shall make all inquiries as directed of both the respondent and of the Bar Association as specifically set forth in the order of October 15, 2012.
¶ 5 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: the instant cause is referred to the Professional Responsibility' Tribunal for consideration with the matter concerning interim suspension transferred by this Court's order of October 15th, 2012.
¶ 6 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 25 DAY OF OCTOBER, 2012.
ALL JUSTICES CONCUR.
WATT, J.:
¶ 1 The Bar Association filed a three-count, Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1-A,
¶ 2 In consideration of the facts and upon de novo review,
¶ 3 Moon was admitted to the practice of law in April of 2004. On February 24, 2012, the Bar Association filed a three-count complaint asserting that the attorney had engaged in criminal acts, outside his professional dealings, adversely reflecting on the legal profession.
¶ 4 On the day of trial, the parties entered in joint stipulations of fact, conclusions of law, and a recommendation for discipline. As to each count, Moon acknowledged that he engaged in misconduct prohibited by Rule 8.4(b), Rules Governing Professional Conduct,
¶ 5 The Bar Association filed its brief in chief on July 9, 2012. The briefing cycle was completed on July 31, 2012 with the Bar Association's notice that it would waive the filing of a reply brief.
¶ 6 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.
¶ 7 In the wee hours of September 12, 2008, an employee of the Whataburger Restaurant called in a complaint about an extremely intoxicated individual sitting in the restaurant's drive through. When an officer arrived on the scene and approached the running vehicle, Moon pulled out a badge and identification representing to the officer that he was an Oklahoma County Sheriff's Deputy
¶ 8 When the officer asked Moon to turn off the vehicle, he refused. The attorney was asked if he had a firearm to which he responded by showing his badge and identifying himself as a deputy.
¶ 9 Exhibit 15, entered into the record, is a video recording of the booking process. The tape, which runs just short of two hours, reveals Moon: repeatedly demanding to be taken to Oklahoma County Jail; being uncooperative, abusive, belligerent, and offensive to officers; threatening the officers' jobs; indicating that all charges will be dropped because of the judges, district attorneys, city and state officials, and other influential people he knows; and asserting that he will be filing civil suits against the officers.
¶ 10 Moon doesn't dispute either that he spit on the officer or that he represented himself to be a police officer. However, he does not recall having done either but recognizes that he was "highly intoxicated at the
¶ 11 On November 3, 2008, Moon was charged with two felonies, Placing Body Fluids Upon a Government Employee and False Personation of a Law Enforcement Officer and two misdemeanors, Actual Physical Control of a Motor Vehicle [while under the influence] and Resisting Arrest. Moon has tendered written formal apologies to the arresting officer, the Oklahoma County Sheriff, and his Department.
¶ 12 In November of 2011, Moon entered a negotiated agreement in which he pled guilty to the misdemeanor charges in exchange for dismissal of the felony counts. Pursuant to the plea, Moon received a two year deferred sentence on each count to be served under the supervision of the District Attorney's Office. He was also ordered to obtain a drug and alcohol assessment and to receive treatment as directed, including the completion of an outpatient treatment program for one year and to submit to random, monthly urinalysis testing.
¶ 13 On December 24, 2008 at approximately 12:45 a.m., Sergeant Chett Hooper observed a set of vehicle tracks going off the right hand side of the road into a snowbank in rural Teton County, Wyoming. The sergeant followed tire tracks to Cattleman's Bridge discovering a vehicle stopped in the middle of the road with no lights. He approached the vehicle, the lights came on and the driver attempted to leave the scene. However, the sergeant was able to stop the vehicle which was driven by the respondent. Moon told the sergeant that he and his friend were sitting in the dark vehicle "watching moose" and that they had been driving into the snow banks intentionally.
¶ 14 Upon exiting the vehicle, the sergeant observed that Moon had slurred speech, red and watery eyes, swayed back and forth, and smelled strongly of alcohol. Moon admitted drinking about five beers and refused to submit to a breath test. He later declined the opportunity for a chemical test. Although Moon was cooperative during the arrest itself and at the station house thereafter, he again attempted to influence the way he was treated by name dropping and indicating that his father had been largely involved in the building of the local police facilities.
¶ 15 Moon was charged with Driving Under the Influence. On July 15, 2009, he entered a plea of guilty to the charge and was placed on two years unsupervised probation. He was also ordered: not to violate any law or consume or possess any alcoholic beverage; attend a state-certified DWUI class filing proof of completion thereof within four months; and to attend thirty-two (32) additional hours of substance abuse education or counseling and file proof thereof within 120 days. Moon has successfully completed all terms of the negotiated plea agreement.
¶ 16 At 4:30 in the morning of February 20, 2011, Oklahoma Highway Patrol Trooper John Barnes responded to a report of a single car accident on the Kilpatrick Turnpike. The Trooper observed an unoccupied 2009 Ford Mustang with the top down and keys in the ignition. The vehicle was totaled and a loaded firearm was found in its console. The vehicle had struck the guardrail and a sign post, gone through a ditch, and landed off-road.
¶ 17 The Trooper traced the tag number and proceeded to the registered owner's home, observing a law enforcement vehicle parked in the driveway. The Trooper made contact with the Mustang's owner, a Captain in the Oklahoma County Sheriff's Department. The Captain told the Trooper that he had loaned the vehicle to Moon who called him at approximately 4:00 that morning stating he had wrecked the vehicle and that he was drunk.
¶ 18 The Captain took the Trooper to Moon's home and they entered through an unlocked door. They saw a number of gallon-sized liquor bottles in the house. Moon exited his bedroom, in the nude, and carrying
¶ 19 The next day, Moon called the Trooper to thank him for only issuing tickets, promising to pay the citations and make restitution for the damage to the guard rails. Moon also indicated that he would help the Trooper out with legal work or make a donation to an organization on his behalf. Moon entered a plea of nolo contendere to the charges and paid both tickets and all court costs. Moon did not pay the $1,523.96 charge for repair of the Turnpike property. Rather, the Captain's insurance issued the check. Moon did reimburse the Captain $3,000.00 toward the purchase of a new 2011 Mustang.
¶ 20 The parties point to numerous factors they agree should weigh in favor of mitigation. They include the fact that the attorney: has not been previously disciplined; cooperated with the Bar Association throughout the disciplinary process; accepted responsibility for his behavior by entering guilty pleas and stipulations in this cause; recognizes that his actions brought discredit to the legal profession and is remorseful therefor; did not abuse the attorney-client relationship or harm any client's legal interest; suffered from chronic alcoholism; following his arrest in 2008, sought treatment in Florida and later returned to Valley Hope in 2011 where he finally accepted the fact that he was an alcoholic; currently attends a continuing care treatment program three times per week; is participating in Lawyers Helping Lawyers and has an assigned mentor to assist him in maintaining his sobriety and assist in his recovery; is committed to maintain his sobriety and submitted to random drug testing of hair follicles and urine with negative results; and is willing to submit to any terms deemed appropriate by this Court. In addition, we note that Moon's testimony indicates sincere remorse for his actions along with a true commitment to address his addiction problems.
¶ 22 It is inconsequential that there is no evidence that a client suffered as a result of the attorney's alcoholic encounters.
¶ 23 The respondent's encounters with law enforcement violated standards set forth by
¶ 24 The trial panel found Moon's actions to have violated Rule 8.4(b), Rules Governing Professional Conduct, providing that it is misconduct to commit a criminal act reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer. We agree and determine that clear and convincing evidence also exists of his having violated subsection (e) of the same rule, prohibiting an attorney's stating or implying an ability to influence improperly a government official.
¶ 26 This Court determines the appropriate discipline to be administered to preserve public confidence in the bar. Our responsibility is not to punish but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. Discipline is imposed to maintain these goals rather than as a punishment for the lawyer's misconduct.
¶ 27 Moon stipulated to the three alcohol-related offenses, covering a time period of approximately three years. However, it is clear that his issues with substance abuse have been problematic at least since 2001.
¶ 28 The attorney did not appear at a meeting scheduled for March 29th, 2010 with a Bar Association employee. Apparently, at that time, Moon had complied with a request to take a urine test but had not submitted to an ordered hair follicle test.
¶ 29 In similar causes involving attorneys with alcohol addiction problems, the breadth of discipline has run the gamut from our
¶ 30 In a period of three years, Moon was arrested twice for drunken driving. On one such occasion, he allegedly spit on the arresting officer. The respondent was filmed while he harangued, castigated, berated, and threatened the officers responsible for his booking for a period of almost two hours. A portion of the recording of the incident appeared on local news and is now readily available for viewing on the world wide web. On a third occasion, Moon left the scene of an accident and was so intoxicated when he was approached at his home concerning the matter that he appeared in the nude before a Trooper and another officer while toting a firearm. There is evidence that Moon's problems with substance abuse stretch back to 2001. It is also readily apparent that the attorney understood that his transgressions placed his license to practice law in danger of being revoked, as during both the second arrest and the incident where he left the scene, he begged the officers involved to do something other than arrest him because he feared the loss of his license to practice.
¶ 31 McBride is factually very similar to the instant cause. There, the attorney was twice convicted of misdemeanor charges of driving under the influence. Like Moon here, the evidence presented regarding McBride's legal expertise supported a finding that he was a good lawyer who always acted professionally and appropriately while practicing law. McBride had also been struggling with addiction issues for approximately ten years as has Moon. Similar to McBride, Moon has: admitted his addiction and stipulated to his transgressions; sought help; received good reports on his treatment and participation in the outpatient program, Alcoholics Anonymous, and Lawyers Helping Lawyers; agreed to waive confidentiality so that any breach of the conditions imposed could be readily reported; expressed his remorse and embarrassment; and been candid with the Bar Association and the Trial Panel.
¶ 32 Both plea bargains negotiated in the criminal proceedings contained probationary periods of two years. Curiously, despite those pleas and the reliance upon and the uncanny resemblance with the facts of McBride, neither the parties nor the trial panel recommended that Moon receive discipline consonant with that imposed in the previous cause. McBride was publicly censured and received a deferred suspension of two years and one day, with conditions similar to those recommended here. Nevertheless, it has been proposed that Moon receive only one year's probation with conditions along with the payment of costs.
¶ 33 As is appropriate, we take into consideration the mitigating circumstances stipulated to by the parties in crafting the
¶ 34 The attorney recognizes his responsibility to pay the fees and expenses of the investigation. The Bar Association filed a motion to assess costs of $1,459.55, an amount to which Moon has agreed.
¶ 35 A conviction for driving a motor vehicle while under the influence of intoxicating liquor does not facially show a lawyer's unfitness to practice law.
¶ 36 At the end of the two years and one day probationary period, if Moon has not violated the terms of the probation, the suspension will be dismissed. Nevertheless, we emphasize that, if the General Counsel receives information that the attorney has violated any term or condition of his probation,
COLBERT, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, JJ., concur.
KAUGER, J., concurs in part; dissents in part.
TAYLOR, C.J., COMBS, GURICH, JJ., dissent.
TAYLOR, C.J., with whom KAUGER, COMBS, GURICH, JJ. join, dissenting:
Due to his history with alcohol, guns, lying and outrageous behavior and in order to protect the public and uphold the standards of the legal profession, I would immediately suspend this Respondent from the practice of law.
"It is professional misconduct for a lawyer to:
Transcript of proceedings before the Trial Panel, April 26, 2012, Moon testifying in pertinent part at p. 52:
Exhibit 16, Transcript of L.B. Moon and Bedford Arrest, providing in pertinent part:
Transcript of proceedings before the Trial Panel, April 26, 2012, Moon testifying in pertinent part: at pp. 138-39 "... Q I want to talk to you about a circumstance that was brought up by counsel for — I started to say the government. Counsel for the bar association. Concerning your stay at Valley Hope in 2001.
at pp. 143-44 "... Q Mr. Moon, one of the — and I believe we got on this specific topic about your treatment in 2001, based on Exhibit 66, wherein your records from Valley Hope when you went inpatient last year and specifically on your intake, it was noted that you had been treated previously inpatient in 2001 for cocaine abuse. You had a period of sobriety following your 2001 inpatient treatment, did you not?
Transcript of proceedings before the Trial Panel, April 26, 2012, Honorable Jerry D. Bass testifying in pertinent part at p. 104-05:
