KAUGER, J.:

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Robert Bradley Miller, (attorney/Miller) with five counts of professional misconduct resulting from circumstances surrounding the alleged irresponsible and deceitful prosecution of murder trials in his capacity as Assistant District Attorney for Oklahoma County. The Bar Association alleged that the respondent's actions involved: dishonesty, fraud, unfairness, lack of candor toward the tribunal, a violation of special responsibilities as a prosecutor and the Rules of Professional Conduct, improperly dealing with unrepresented persons, lack of respect of rights for third parties, improper influence of an official, and a lawyer acting as an advocate in a trial and engaging in conduct prejudicial to the administration of justice.

¶ 2 The Bar Association argues that this conduct was in violation of Rules 3.3,1 3.4,2 3.5,3 3.7,4 3.8,5 4.1,6 4.3,7 4.4,8 and 8.4(a)(c)(d) and (e)9 of the Rules of Professional Conduct and Rule 1.3,10 of the Rules Governing Disciplinary Proceedings. After a lengthy, fourteen day evidentiary hearing held between June 6, and June 26, 2012, the trial panel recommended a one year suspension and payment of the entire costs of these proceedings which amounted to $61,920.30. Upon a de novo review,11 we hold that the respondent's conduct warrants a 180 day suspension and the imposition of partial costs.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 The facts and procedural background of this cause span over 20 years and concern two murder trials with numerous appeals. The report and recommendation of the Professional Responsibility Tribunal (PRT) of the Bar Association provides a detailed, sixty-eight page accurate recitation of the facts and procedural history, along with its findings. After a thorough and de novo review of the record, we agree with the PRT's review of the facts and procedural background, and hereby adopt and incorporate its report filed September 28, 2012, as an appendix to this opinion to supplement the brief facts provided herein.

¶ 4 On June 24, 1993, seventeen year old gang member, Derrick Smith, and a fourteen year old acquaintance, Shauna Farrow, were walking home from a party at the Ambassador Court Apartments in Oklahoma City around 11:00 p.m. A car approached them, the driver stopped, opened the doors, and began firing guns at them. Farrow was gunned down and killed in the drive-by shooting and Smith's leg was injured. Smith was the only witness and he gave, and continues to give to this day, various conflicting statements as to what occurred.

¶ 5 Smith's rival gang members, Yancy Lyndell Douglas and Paris LaPriest Powell were each convicted of first degree malice murder and shooting with intent to kill. They were tried separately, almost two years apart,12 and both juries assessed the death penalty for Farrow's death, and life imprisonment for Smith's injury. Smith was the key witness at both trials who identified Douglas and Powell as the shooters. Both cases were appealed to the Oklahoma Court of Criminal Appeals and direct appeal relief and post conviction relief were denied. Relief was also sought in the federal courts and it culminated in the 10th Circuit Court of Civil Appeals' opinion in Douglas v. Workman, 560 F.3d 1156 (10th Cir.2009), which resulted in the reversal of both convictions. The basis of this reversal was the respondent's "egregious conduct" as prosecutor. The Oklahoma County District Attorney's office has declined to retry Douglas and Powell.

¶ 6 The Bar Association filed a complaint with the Chief Justice on January 25, 2011, against the respondent, nearly eighteen years after the shootings occurred. The initial complaint contained four counts of misconduct, but another count was added almost a year later on January 18, 2012. The filing of the complaint was precipitated by the 10th Circuit Court of Appeals' opinion in Douglas v. Workman, supra. However, to avoid the respondent's due process complaints,13 neither the Bar Association nor the PRT relied on the finding or facts of the federal proceedings to prove its alleged misconduct. Instead, it independently introduced evidence specifically related to the Oklahoma Rules of Professional Conduct, and the PRT gave no deference to the federal court's findings and neither do we. Rather, on September 28, 2012, the PRT made its own factual determinations on which to base its recommended discipline. On October 23, 2012, the National Association of Criminal Defense Lawyers filed a motion for leave to file an amicus brief which the Chief Justice denied on October 25, 2012.14

¶ 7 The cause was assigned to this office on January 9, 2013. The 10th Circuit's findings notwithstanding, the dispositive issue here is whether the circumstances which led to reversal of the death penalty conviction for prosecutorial misconduct also constitute misconduct requiring attorney discipline.

STANDARD OF REVIEW

¶ 8 The responsibility of this Court in disciplinary proceedings is not to punish but rather to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession.15 The nondelegable, constitutional responsibility to regulate the practice and the ethics, licensure, and discipline of legal practitioners is solely vested in this Court.16

¶ 9 In disciplinary matters, this Court possesses exclusive original jurisdiction.17 To keep the investigatory and adjudicatory functions separate in bar disciplinary proceedings, this Court has assigned limited duties to the Oklahoma Bar Association, and the PRT.18 In performing their roles, the Bar and PRT act as an aid to the Court, but do not act on behalf of the Court.19 We are not bound by agreed findings, conclusions of law or recommendations for discipline.20 Rather, the ultimate responsibility for imposition of professional discipline is solely within the purview of this Court.21

¶ 10 In considering the record before us, as well as the recommendations of the Professional Responsibility Tribunal, our standard of review is de novo.22 Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.23 The function of disciplinary proceedings is not punishment. The purpose of discipline is to 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.24

¶ 11 We have reviewed the evidence and find that the PRT's findings of fact are supported by the record, but do not agree that all of the allegations of misconduct were established by clear and convincing evidence. Nor do we agree with the recommended discipline or assessment of the amount of costs.

COUNT 1 OF MISCONDUCT: DERRICK SMITH

¶ 12 Count 1 of the misconduct centers around the surviving drive by victim, Derrick Smith, and it contains two primary allegations: 1) that Smith and the respondent "cut a deal" for Smith to identify Douglas and Powell as the gunmen in exchange for favorable treatment on Smith's own pending criminal charges, but neglected to disclose such a deal to the jury as required by law; and 2) that the respondent interjected himself into Smith's criminal cases in an attempt to secure favorable treatment for Smith as per their "secret" agreement.

¶ 13 The evidence regarding Smith's account of events is questionable at best. Smith is a career criminal who began his career as a juvenile with more than a dozen juvenile violations and visits to juvenile detention facilities, before being charged and/or convicted of the following offenses as an adult gang member: aggravated assault with a gun, shooting with intent to kill, trafficking cocaine, possession of cocaine, receiving stolen property, concealing stolen property, domestic violence, assault and battery, assessory to murder, and armed robbery.

¶ 14 Smith has, over nearly 20 years, given so many different versions of what happened the night of the shooting with varying details that it is clear that his testimony/story varies, depending on who is asking the questions and what he thinks he will get in exchange for his answers. We agree with the trial panel that he is not a credible witness. Consequently, any of the Bar's accusations which rely on Smith's version of events have not been proven by clear and convincing evidence and do not serve as the basis for discipline — including his testimony that he cut a "deal" with respondent in exchange for testimony without disclosing such a deal to the jury.

¶ 15 Nevertheless, the record is clear that, whether a deal was cut or not, respondent did take it upon himself to attempt to help Smith after he testified for the state. While the evidence may infer that an "unspoken" deal occurred which was never disclosed to the defense or to Smith's appellate attorneys, we also agree with the trial panel that the evidence is far from clear and convincing that the respondent's assistance, if any, resulted in violations of the Rules of Professional Conduct. However, with regard to this count, the trial panel still determined that the respondent engaged in conduct that was prejudicial to the administration of justice, thus violating Rule 8.4(d) of the Oklahoma Rules of Professional Conduct.25 We disagree that the evidence reflects a clear and convincing violation of this rule.

COUNT II OF MISCONDUCT: THE LASTER SISTERS

¶ 16 Smith had three cousins who are referred to as the Laster sisters who, at the time of the drive-by shooting, were 14-year-old Jackie, 12-year-old Andrea, and 9-year-old Tiffany. Although the sisters did not witness the drive-by shooting, they were involved in both the Powell and Douglas proceedings. Andrea testified at both trials that she had seen Douglas the day before the shooting in a car identified by the respondent as the vehicle involved in the shooting. She stated that he was at a nearby apartment complex in the car and waving a gun around. Apparently Jackie was with her, but Jackie was uncooperative and remains so today.

¶ 17 In 2001, Andrea, who was also incarcerated at the time, recanted her story and insisted that she was coerced by the respondent to testify falsely at the trials. She has also offered multiple, contradicting stories, and she also testified that she would do anything she could to help Derrick. Her credibility as a witness is not unlike her cousin, Derrick Smith's. Nevertheless, other clear and convincing evidence does reveal irregularities in the way in which information and testimony was obtained from the Laster sisters.

¶ 18 For example, fake subpoenas which are not authorized by statute but were apparently, routinely issued under the direction of the District Attorney, were utilized to require the girls meet with the prosecutor. Writs of Attachments issued for Jackie and Andrea were based on incorrect information, and arrest warrants were issued in an attempt to force them into cooperating with the respondent. The girls were held in custody of the Oklahoma County Sheriff at one point during the Powell proceeding, and were admonished by the respondent and trial judge about their obligation to testify without the presence of defense attorneys.

¶ 19 Even though the girls were minors, there is no evidence that any steps were taken: to secure parental consent and/or notification, to advise them of their rights, to secure or advise of representation by counsel, or to appoint counsel for them. The respondent prepared an Application for a Writ of Attachment for Andrea during the Douglas trial to be brought before the trial judge without delay, even though the writ was based upon her failure to appear pursuant to a proper subpoena, and there is no evidence that such a subpoena was ever issued. A subpoena duces tecum was issued to the principal of Tiffany's school, even though she was without any personal knowledge of the events. Andrea and Jackie were arrested for failure to appear on subpoenas that are not evidenced in the court records. Again, the trial panel determined that the respondent engaged in conduct that was prejudicial to the administration of justice, thus violating Rule 8.4(d) of the Oklahoma Rules of Professional Conduct.26 We agree with the trial panel.

COUNT III: THE GREERS

¶ 20 On the night of the shooting, Linda Greer told police at the scene that she heard what sounded like fireworks popping and looked out her front door to observe a small, white car leaving at a high rate of speed. She then called to her husband who was in bed and he ran out to assist the victims. There was no further police officer follow up with the Greers account of what occurred.

¶ 21 The respondent contacted the Greers by telephone interview a few weeks before the Douglas trial and discovered that, contrary to Derrick Smith's account of the suspect car pulling into a driveway and changing drivers, Linda Greer did not see the vehicle stop or pull into a driveway. This information could have been exculpatory or impeachment evidence to the State's key witness — Smith. The respondent did not expressly disclose this information to the defense at either the Douglas or Powell trials. This evidence was not discovered/utilized until 1998 when Powell's appellate counsel discovered and pursued the matter further.

¶ 22 In handling the evidence, respondent left notes in his prosecutor's file that might have informed the defense at both the Douglas and Powell trials of the Greer interview and corresponding evidence. Additionally, the District Attorney's office had an "open file" policy which also could have allowed the discovery by the defense counsel. The trial panel determined that the respondent violated Rule 3.8(d) of the Oklahoma Rules of Professional Conduct involving a prosecutor's duty to timely disclose all negating or mitigating evidence or information because the respondent did not expressly disclose the information to the defense.27 We agree that the only practice is to expressly disclose the information to the defense, and that non-disclosure was a violation of this rule under the facts presented.

COUNT IV MISCONDUCT: PROSECUTOR DISCLOSURE

¶ 23 This count is similar to Count I in that it involves conduct surrounding Derrick Smith and the alleged "agreement" for testimony and its disclosure. The genesis of this Count are that: 1) the respondent's conduct was wilful regarding the eliciting of false testimony from Derrick Smith and using that false testimony; and 2) the respondent engaged in active concealment to cover up an agreement between Smith and Respondent for help in exchange of testimony.

¶ 24 The trial panel made six succinct findings with regard to this count of misconduct. With the exception of the finding that there was clear and convincing evidence that the respondent engendered in Derrick Smith the belief that he would render him assistance in his pending criminal matters if Smith testified in support of the State in both the Douglas and Powell murder trials, we agree with the Trial Panel. Those findings are:

¶ 25 The trial panel determined that the respondent's conduct violated the Oklahoma Rules of Professional Conduct Rule 3.4(a) [unlawfully obstruct another party's access to evidence], (b) [falsify evidence or unlawfully induce a witness] and (e) [allude to matters in trial that are not supported by evidence],28 and Rule 3.8(d) [timely disclose evidence] and Rule 8.4(d) [engage in conduct prejudicial to the administration of justice]. We agree that violations of Rule 3.4(a), Rule 3.8(d) and Rule 8.4(d) occurred.

COUNT V: SUSPECT VEHICLE

¶ 26 This final count relates to the suspect's car used in the drive by shooting, photographic evidence of the car used at trial, various interviews of witnesses regarding the car as well as the chain of custody and search of the car. We agree with the trial panel that the respondent was less than forthcoming with information regarding his interview with a jailhouse informant concerning the car. However, we cannot agree with the trial panel that, the discovery of such an infraction, decades later, hinging on a jailhouse informant whose name was known to defense counsels at the time of the trials equates to a violation of the Rules of Professional Conduct. It is unclear exactly how much information was disclosed to defense counsels, and whether defense counsels even bothered to pursue the information.

DISCIPLINE IMPOSED

¶ 27 Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct.29 Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.30 Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated.31 Mitigating circumstances may be considered in evaluating both the attorney's conduct and assessing the appropriate discipline.32

¶ 28 This Court is the sole arbiter of bar discipline.33 We are free to attribute as much weight to the trial panel's recommendations as we see fit.34 Under the facts presented, appropriate discipline falls somewhere between a private reprimand and a year suspension. Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury. Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances,35 dismissals of client's cases, or failing to do anything on a client's behalf36 or other types of client's case mismanagement.37

¶ 29 We must recognize that the respondent was acting under the direction, supervision, and policies of the then elected District Attorney. Responsibility for the respondent's conduct and trial tactics falls partially to the District Attorney as the chief administrator of the office.38 Although he exercised his rights to object and disagree to the charges, the respondent has also been fully cooperative with the Bar Association in this lengthy and tedious process.39

¶ 30 Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.40 Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct.41 Reprehensible though Miller's conduct may have been, and even if such misconduct is punished more harsly when it occurs now, Miller's actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.

¶ 31 The trial panel recommended, as appropriate punishment, a one year suspension and the payment of costs. We disagree. We determine that, given respondent's misconduct, his lack of prior disciplinary history, the length of time that has passed since the violations occurred, and the discipline administered in similar cases, respondent's conduct warrants a 180 day suspension and only a partial payment of costs. Consequently, we decline to impose the one year suspension as recommended by the trial panel and instead suspend for 180 days the respondent. The Bar Association seeks total costs in the amount of $61,920.00. However, the more reasonable cost of 1/5 of the total, $12,834.00, is more commensurate with the violations which were actually proven. Accordingly, we impose the payment of costs in the amount of $12,834.00 which may be paid in three, equal, monthly installments beginning from the date this opinion is handed down.

CONCLUSION

¶ 32 The Bar Association has not established by clear and convincing evidence that the Rules of Professional Conduct were violated by the respondent's actions relating to Count I, regarding the sole witness/victim, Derrick Smith. However, the respondent's abuse of the subpoena process did result in an abuse of the judicial process concerning Count II. The respondent also violated his duty of disclosure as alleged in Count III.

¶ 33 While the respondent's conduct in Count IV may not have been wilful or active concealment, his actions did result in violations of obstructing access to evidence, timely disclosure of evidence, and conduct which was prejudicial to the administration of justice. The respondent stands exonerated of the allegations made against him in Count V. Considering comparative disciplinary matters, the time span of the conduct in relation to the disciplinary proceeding, the respondent's cooperation and lack of prior discipline, we suspend the respondent for 180 days and require him to pay $12,834.00 towards the costs of these proceedings.

ATTORNEY SUSPENDED 180 DAYS; PARTIAL COSTS IMPOSED.

REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, JJ., concur.

WATT, and TAYLOR, JJ., dissent.

COLBERT, C.J., GURICH, J., not participating.

TAYLOR, J., with whom WATT, J., joins, dissent:

Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.