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State ex rel. Okl. Bar Ass'n v. Badger4/6/1993
RESPONDENT'S REQUEST FOR DISMISSAL DENIED WITHOUT PREJUDICE; PROCEEDING REFERRED TO PROFESSIONAL RESPONSIBILITY TRIBUNAL.
The opinion of the court was delivered by: LAVENDER, Vice Chief Justice.
Complainant, the Oklahoma Bar Association, by letter from the General Counsel, notified this Court respondent, Clayton Lee Badger, a licensed attorney, was convicted by one count information in the United States District Court for the Northern District of Oklahoma of the crime of knowingly and willfully receiving and possessing firearms, to wit: one HK MP5SD machinegun, caliber 9 mm and one silencer/suppressor, caliber 9 mm, which had previously been transferred to respondent in violation of Chapter 53, Title 26, United States Code, in that no transfer tax had been paid as required by 26 U.S.C. § 5811, in violation of 26 U.S.C. § 5861(b). Respondent's sentence was three years probation and a $4,000.00 fine.
We ordered the parties to file simultaneous briefs on whether the conviction facially showed respondent's unfitness to practice law. Rule 7.1-7.7, 5 O.S. 1991, Ch. 1, App. 1-A, as amended, requires us to issue an order of interim suspension from the practice of law only when the crime for which respondent stands convicted facially demonstrates unfitness to practice law. See State ex rel. Oklahoma Bar Association v. Armstrong, 791 P.2d 815, 818 (Okla. 1990) (conviction of some crimes will facially show unfitness to practice law, while others will not). Respondent filed a brief requesting dismissal, arguing the conviction does not facially show unfitness to practice law. Instead of filing a response complainant filed an application for remand to proceed pursuant to Rule 6, Rules Governing Disciplinary Proceedings. After reviewing the submissions of the parties we defer ruling on whether conviction of the instant crime shows unfitness to practice law. We refer the matter to a trial panel of the Professional Responsibility Tribunal (PRT) for a hearing to consider the conviction in light of the surrounding circumstances, as shown by evidence presented to the panel and for the filing of a report and recommendation with this Court on whether the conviction demonstrates respondent's unfitness to practice law.
As noted above, we have recognized in Rule 7 proceedings brought before us only certain crimes will facially demonstrate the lawyer's unfitness to practice law, while others will not. Armstrong, supra, 791 P.2d at 818. When conviction of a crime facially demonstrates unfitness interim suspension issues pursuant to Rule 7.3. When the conviction does not facially demonstrate unfitness normally two options are available. We may refer to a trial panel of the PRT for a hearing, report and recommendation as to whether the circumstances surrounding the offense demonstrate unfitness and, if so, the discipline to be imposed. This option was followed in Armstrong, 791 P.2d at 818-819. Another option is to dismiss the proceeding. In our view, a referral to the PRT is preferable here.
Under the predecessor rules concerning summary-type discipline for conviction of a crime we considered it important whether or not the crime involved required some from of wilful or knowing intent. State ex rel. Oklahoma Bar Association v. Jones, 566 P.2d 130, 132 (Okla. 1977) (no willful intent required for conviction of reporting violation of federal election campaign laws); See also State ex rel. Oklahoma Bar Association v. Simms, 590 P.2d 184 (Okla. 1978) (willfully subscribing to false tax returns). In Armstrong we were of the view offenses such as those involving violence, dishonesty, breach of trust or serious interference with the admi
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