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State ex rel Oklahoma Bar Association v.6/10/2003
__ P.3d __
Combined solely for hearing purposes with SCBD No. 4734
BAR DISCIPLINARY PROCEEDING
In these disciplinary proceedings against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the merits and disposition of both the motion for additional discipline and of the complaint? and (2) Is a suspension from the practice of law for two years and one day an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.
I. INTRODUCTION TO THE RECORD
On 13 November 2001 the court held in State ex rel. Oklahoma Bar Association v. Giger (Giger I) that Cordes Martin Giger (Giger or respondent) had engaged in professional misconduct warranting sanctions. We suspended respondent from the practice of law for one year, placed him under conditioned supervision for two years, and directed him to pay the costs of the proceeding. The provisions of respondent's conditioned supervision required him to (1) abide by the Rules of Professional Conduct; (2) cooperate with and participate in the Lawyers Helping Lawyers (LHL) program; (3) refrain from the use or possession of any illegal drug; and (4) remain unimpaired from the use of any legal substance, whether prescribed or not, that might interfere with his ability to function as a lawyer.
On 31 May 2002 the Oklahoma Bar Association (the Bar) filed a motion to impose additional discipline on respondent for violating the terms of his conditioned supervision by: (1) engaging in the practice of law while under suspension; (2) failing to comply with the court's order that he cooperate with and participate in the LHL program; (3) failing to comply with an order of the Cleveland County District Court that he participate in the LHL program as a condition of probation in several drug-related criminal cases; and (4) entering a plea of nolo contendere in Cleveland County District Court to petty larceny. Giger tendered no response to the motion and we referred the matter for hearing to the trial panel that had originally heard Giger I. A hearing was set for 21 August 2002.
While the motion to assess additional discipline was pending, the Bar initiated a formal disciplinary proceeding against respondent arising out of a grievance filed by Jimmy Travis Benson (Giger II or the Benson complaint). Respondent provided the Bar with a detailed response to Mr. Benson's informal grievance, denying his accusations, but did not file a response to the Bar's formal complaint.
The Benson complaint was set for hearing on 6 August 2002 before a different trial panel than that assigned to hear the motion for additional discipline. At the suggestion of the Bar and with respondent's approval, the trial panel assigned to hear the Benson complaint decided to transfer that complaint to the trial panel assigned to hear the motion to impose additional discipline and directed the Bar to seek an order to that effect from this court. We then issued an order combining the two cases for hearing purposes only, directing that they otherwise retain their separate identities and be resolved by independent dispositions.
Accordingly, Giger II was consolidated (with the motion for additional discipline) for hearing on 21 August 2002. Evidence was received on that date on the motion, but because Mr. Benson failed to appear, the trial panel heard no testimony on the complaint. Another hearing was scheduled for 23 October 2002 to take up the Benson complaint, but neither Mr. Benson nor respondent appeared at that hearing. Upon be
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