text:
    2003 OK 28
    In the Matter of the REINSTATEMENT OF Darril Lonnie HOLDEN, Sr., to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. SCBD 4739.
    Supreme Court of Oklahoma.
    March 11, 2003.

      Steven M. Holden, Oklahoma City, for Petitioner Darril L. Holden, Sr.
    Allen J. Welch, Assistant General Counsel, Oklahoma City, for Oklahoma Bar Association.
   BOUDREAU, J.

T1 Petitioner, Darril Lonnie Holden, Sr., was suspended from the practice of law for a period of two years and one day by this Court on July 17, 1996. State ex rel. Oklohoma Bar Assoc. v. Holden, 1996 OK 88, 925 P.2d 32. His name was stricken from the Roll of Attorneys on September 10, 1997. Petitioner now seeks reinstatement to membership in the Oklahoma Bar Association (Bar) and requests that his name be added to the Roll of Attorneys.

T2 After conducting a hearing, the Professional Responsibility Tribunal (PRT) unanimously recommended that Petitioner be granted reinstatement. The PRT found Petitioner met his burden of proof in showing he possessed good moral character, has not engaged in the unauthorized practice of law, and possesses the requisite learning to practice law. The Bar also recommends Petitioner be granted reinstatement.

I. FACTS

18 Petitioner was admitted to the Oklahoma Bar in 1983 and the Kansas Bar in 1990. He practiced in Oklahoma until March 21, 1995, when he was suspended for one year for advising a client to remove a child from Oklahoma in violation of a court order. At the end of his suspension, the Bar objected to his reinstatement because he had failed to pay ordered costs. This Court ultimately dismissed the objection as moot after Petitioner paid the required costs. On July 16, 1996, Petitioner was again suspended from the practice of law, this time for two years and one day for the unauthorized practice of law while under a disciplinary suspension. Petitioner's name was stricken from the roll of attorneys on September 10, 1997, for failure to pay dues for the year 1996.

T4 Upon his suspension in 1996, Petitioner moved to Kansas and was briefly employed by his brother in a commercial flooring business. _ Petitioner - subsequently opened a law office where he represented his brother in business dealings until August of 1997. He closed his practice in Kansas after an investigator for the Kansas Bar advised him that he had failed to notify the Kansas Supreme Court of his Oklahoma suspension as required by Rules of the Supreme Court of Kansas. Petitioner returned to Oklahoma and has been employed as the Director of Support Services for Heartland Baptist Bible College since August of 1998. On July 9, 1999, the Supreme Court of Kansas indefinitely suspended Petitioner from the practice of law in Kansas for the following violations: (1) counseling a client to engage, or assisting a client, in conduct that the lawyer knows is criminal or fraudulent in violation of Kansas Rules of Professional Conduct (KRPC) 1.2(d); (2) engaging in conduct that is prejudicial to the administration of justice in violation of KRPC 8.4(d); (8) failing to serve an answer upon the Disciplinary Administrator within 20 days after service of a complaint in violation of Supreme Court Rule 211(b); and (4) failing to report to the Disciplinary Administrator his suspensions by the Oklahoma Supreme Court in violation of Supreme Court Rule 207(c).

II. STANDARD OF REVIEW

T5 In reinstatement proceedings this Court sits in exercise of its exclusive original jurisdiction and we use a de novo review of the record before us. Matter of Reinstatement of Kamins, 1988 OK. 32, ¶ 18, 752 P.2d 1125, 1129; Matter of Reinstate ment of McConmel, 1994 OK 107, ¶12, 886 P.2d 471, 473. Although the PRT's recommendations are afforded great weight, they are advisory only. Kamins, 752 P.2d at 1129.

III BURDEN OF PROOF AND FACTORS TO BE CONSIDERED IN REINSTATEMENT PROCEEDINGS

T6 An applicant for reinstatement must prove by clear and convincing evidence that "the applicant's conduct will conform to the high standards required of a member of the Bar." Rule 114, Rules Governing Disciplinary Proceedings (RGDP), Okla.Stat. tit, 5, ch. 1, app. 1-A (2001). "An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time." Id.

17 Rule 11.5 of the RGDP requires the PRT to make specific findings regarding (1) whether the petitioner possesses the good moral character which would entitle him to be admitted to the Bar, (2) whether the petitioner has engaged in the unauthorized practice of law during the period of suspension, and (8) whether the petitioner possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma. The petitioner must also show by clear and convincing evidence each of the following factors: (1) the present moral fitness of the petitioner, (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, (8) the extent of petitioner's rehabilitation, (4) seriousness of the original misconduct, (5) conduct subsequent to discipline, (6) the time which has elapsed since the original discipline, (7) the petitioner's character, maturity and experience at the time of suspension, and (8) the petitioner's present competence in legal skills Kamins, 752 P.2d at 1130. ~

IV. PETITIONERS EVIDENCE

T8 The following evidence was presented by Petitioner to support a finding of rehabilitation and fitness for reinstatement. Four witnesses testified on behalf of Petitioner at the hearing before the PRT. Three attorneys, Richard Anderson, James Cox, Robert Goldman, and Petitioner's supervisor at Heartland Baptist Bible College, Jeff Copes, all testified to Petitioner's good moral character. They attested to his religious nature, his ethical conduct and honesty. They further testified that Petitioner had not, to their knowledge, engaged in any activities that would constitute the practice of law in Oklahoma since his suspension in 1996.

19 Petitioner also testified in his own behalf. With respect to his one year suspension in 1995, Petitioner maintains he never advised a client to remove a child from Oklahoma in violation of a court order, although he states it is possible his client misunderstood his advice. Petitioner did acknowledge that his actions while under the 1995 suspension could constitute the practice of law. Petitioner stated that while under suspension he worked at his son's law office where, in addition to legal research and writing, he interviewed and dealt with clients. Petitioner testified that at the time he was unaware his actions were sufficient to constitute the practice of law. He now understands his actions were improper.

110 With regards to his Kansas suspension, Petitioner testified the suspension was in part a reciprocal discipline for his misconduct in Oklahoma and for new misconduct in Kansas. Petitioner acknowledged he violated Kansas Supreme Court rules when he failed to notify the Disciplinary Administration that he had been suspended in Oklahoma. Petitioner testified that after his 1996 suspension he received letters from each of the federal courts that he was admitted to which acknowledged receiving information on his suspension and which informed him that he was concurrently suspended in their courts. Petitioner believed the Kansas Bar would be notified in the same manner as the federal courts. Petitioner accepted full responsibility for failing to inform the Kansas Bar of his Oklahoma discipline.

T°11 Petitioner further testified that he failed to file an answer with the Kansas Disciplinary Administration because he mistakenly believed that after he spoke with the general counsel for the Kansas Bar and agreed to stipulate to the petition that there was no need to file an answer. Petitioner accepted full responsibility for failing to file an answer as required.

112 Lastly, Petitioner testified that he has not practiced law in Oklahoma since his suspension in 1996 or in Kansas since August of 1997 when he was informed that he had failed to notify the Kansas Supreme Court of his Oklahoma discipline.

113 The evidence also established Petitioner has maintained his knowledge and competency in the law. He attended 33 hours of continuing legal education courses in Oklahoma during 2002, has read the Oklahoma Bar Journal since his suspension and discussed its content with fellow attorneys and has researched various legal issues for his son, an attorney.

V. DECISION

114 It is this Court's duty to safeguard the interests of the public, the courts and the legal profession. Kamins, 752 P.2d at 1130. We must balance the interest of the petitioner against the fact that the very nature of the profession places an attorney in a position where an unprincipled person may do tremendous harm to the public and to his clients. Id. Where one has shown disregard for the interests which this Court must uphold, so as to necessitate disciplinary proceedings in the first instance, his showing on each of the factors to be considered on reinstatement must be clear and convincing. Id.

115 While Petitioner's prior misconduct indeed brought disrepute upon the profession, he concedes his conduct was wrongful and regrets the disrepute brought to himself and the profession. Notwithstanding what he did, the evidence reveals Petitioner is a competent attorney and is deserving of reinstatement. Petitioner testified he regrets his previous actions and understands the seriousness of the violations. Having reviewed the evidence we find Petitioner has met his burden of clear and convincing evidence that he possesses the good moral character required of a member of the Bar.

116 The PRT found and we agree that the record contains clear and convincing evidence that Petitioner has retained competence in the law through his legal research and writing activities, by attending continuing legal education seminars and by reviewing and discussing legal periodicals The evidence is also clear and convincing that Petitioner has not engaged in the unauthorized practice of law in Oklahoma since his suspension in 1996.

T17 Considering each required Kamin factor, and the heavy burden placed on Petitioner, we agree with the recommendations of the trial panel and find that Petitioner has met his burden. The Oklahoma Bar Association has filed an application for the payment of costs in the amount of $727.97. It is therefore ordered that Petitioner, Darril L. Holden, Sr., be reinstated to the practice of law in Oklahoma and to membership in the Oklahoma Bar Association, and placed on the Roll of Attorneys, effective upon his payment of costs in the amount of $727.97. Costs are to be paid within thirty days of the date this opinion is final.

VI. CONCLUSION

T18 Rule 114, RGDP, provides that a petitioner for reinstatement must establish affirmatively that, if readmitted, petitioner's conduct will conform to the high standards required of a member of the Bar. Considering all the requirements for reinstatement and the heavy burden on Petitioner to prove by clear and convincing evidence, we find that reinstatement should be granted.

PETITION FOR REINSTATEMENT GRANTED AND PAYMENT OF COSTS ORDERED.

ALL JUSTICES CONCUR.


source: Caselaw Access Project

author: WINCHESTER, J.

license: Public Domain

text:
    2003 OK 34
    STATE of Oklahoma, ex rel, OKLAHOMA BAR ASSOCIATION, Complainant, v. George L. MOTHERSHED, Respondent.
    SCBD No. 4687.
    Supreme Court of Oklahoma.
    March 18, 2003.

      Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for the Complainant.
    George L. Mothershed, Respondent, Phoenix, AZ, Pro Se.
   WINCHESTER, J.

T1 Oklahoma Bar Association disciplinary proceedings were brought against Respondent attorney, George L. Mothershed, on three counts of professional misconduct. Subsequently, the OBA amended the complaint with five additional counts. Hearings were held before the Professional Responsibility Tribunal, that recommends Respondent be disbarred. Complainant also recommends disbarment.

12 Respondent is a member of the Oklahoma Bar Association. He was licensed to practice law by the Supreme Court of the State of Oklahoma in 1968. At all times pertinent hereto, Respondent was a resident of the state of Arizona. Respondent sat for the Arizona Bar Exam three times, unsue-cessfully, in February 1996, July 1996 and February 1997. He has never been licensed to practice law in the state of Arizona.

Facts

3 Respondent filed pleadings in the Superior Court of the State of Arizona, Maricopa County, in Copelco Capital, Inc. v. Sports Pocket, Inc. and Brandi Haupt, CV-97-03283, in June 1997. Respondent identified himself as "Attorney for Defendants" in all pleadings he filed. However, these documents did not indicate Respondent was not licensed to practice law in Arizona. In July 1997, when Respondent appeared for a hearing in this case, the Court determined he had not applied to appear pro Rac vice, and continued the hearing. Thereafter, Respondent applied to appear pro hac vice, stating on his application he was "admitted in Oklahoma." The court granted his application but subsequently, on August 12, 1997, the assigned judge vacated this order. The court also ordered Respondent to return files to the clients and forbade him to further advise or counsel them.

Arrangement with William White d/b/a White Professional Associates

{4 On June 30, 1997, the United States Bankruptcy Trustee filed an adversary proceeding against William White, a non-lawyer and proprietor of White Professional Associates, (hereinafter "WPA"), in the United States Bankruptey Court for the District of Arizona, Adversary No. 97-420. WPA prepared documents to be filed in bankruptcy court. Respondent represented White therein.

5 In February 1998, the Respondent filed pleadings in the Superior Court of Arizona, Maricopa County in Bonney v. Bedore, et al., CV-98-01771. Again Respondent identified himself as "Attorney for the Plaintiff," but failed to indicate he was not licensed to practice law in Arizona. The pleadings indicated Respondent's State Bar Number was 006472, but did not state that this was his Oklahoma Bar Number. Respondent's stationary displayed an Arizona address and "Attorney at Law" but did not specify he was licensed to practice law in Oklahoma, not in Arizona.

T6 On March 6, 1998, the bankruptcy court entered an order that permanently enjoined Respondent's client, White, from preparing bankruptcy petitions and other doeu-ments. This order also enjoined White from receiving, collecting or charging fees for such document preparation and from consulting or giving advice as to bankruptey laws, forms or procedure. This order provided no avenue for White to prepare documents or collect fees if he worked under the supervision of an attorney.

17 However, following the issuance of the above-mentioned order, Respondent entered into an arrangement with White pursuant to which White prepared documents for Respondent to file in bankruptey court, and Respondent compensated White at the rate of fifty dollars per hour, in violation of the March 6, 1998, order. Respondent had not represented debtors in the Arizona bank-ruptey court, but began to do so with White's referrals to him. Debtors received solicitation letters from WPA, met with White, received advice and referrals to Respondent. Of the 106 bankruptcy cases filed by Respondent, 102 were referred to him by White.

T8 When the U.S. Trustee became aware of Respondent's conduct, the Trustee initiated adversarial proceedings that resulted in the bankruptcy court's Order of April 26, 2000. Pursuant to this order, Respondent was directed to transfer his files to another attorney or withdraw from his representation of debtors, notify his clients and provide them a copy of the order. Although the bankruptey court found cause to issue a temporary restraining order against Respondent, it declined to do so because Respondent assured the court he no longer accepted bank-ruptey clients. During the hearing before the trial tribunal, the Petitioner presented four witnesses who were Respondent's clients in the Arizona bankruptey court, to-wit: Roger Wood, Michelle Altherr, Joy Griggs, and Richard and Sybilla Augustine.

Representation of Roger Wood

19 One of the clients, Roger Wood, met with White when his mortgage company threatened to foreclose on his residence. White referred him to Respondent as the bankruptey attorney WPA used. Wood testified at the hearing before the trial tribunal that White "was a representative for Mr. Mothershed" and that the two worked together and shared office space. Wood paid Respondent a $600 retainer to file a bank-ruptey action on his behalf. On April 15, 1999, Respondent filed Wood's Chapter 7 bankruptey petition in the U.S. Bankruptcy Court for the District of Arizona, BR-99-04211-PHX~-CGC. He failed to file the required statements and schedules.

110 Wood produced all requested documents and information to Respondent prior to the one attorney-client conference they had. During the course of this attorney-client relationship, Wood received one telephone call from Respondent, and no written correspondence through the mail. Respondent did not file the required schedules and statements in Wood's behalf. Respondent hand-wrote a note to inform Wood of the time and location of the Section 841 hearing. Respondent also gave Wood his phone numbers and assured him that he would attend the hearing. However, Respondent did not attend, and failed to inform Wood or the bankruptcy court that he would not attend. In fact, the location contained in Respondent's handwritten note to Wood was actually a vacant lot, and not the bankruptcy court's address. When Wood finally arrived at the Section 341 hearing, his case had been dismissed. The bankruptcy court entered its order of dismissal on May 24, 1999. Wood's repeated attempts to contact Respondent by telephone were to no avail.

111 Respondent's misconduct prejudiced Wood. His home was taken in foreclosure proceedings, and he was forced to hire another attorney for an additional fee of $600.00, to re-file his bankruptey case. The second attorney successfully represented Wood and his debts were discharged. Respondent misrepresented facts to the Office of General Counsel in his December 2000, response to Wood's grievance against him. Respondent represented that he filed a second Chapter 7 petition at no additional cost, pro se, and that he filed all completed schedules. He also contended he returned Wood's telephone calls. These representations are contrary to the facts in the instant case.

Representation of Michelle Altherr

T12 Michelle Altherr and her husband were referred to Respondent by Ray Arm-bruster of WPA, after receiving a solicitation letter related to the potential foreclosure of their home. In June 1999, the Altherrs paid Respondent a $775 retainer to file bankruptcy on their behalf, Respondent assured them it "would be an easy case." He requested information and documents from the Altherrs, which Ms. Altherr delivered to WPA three days later. On July 80, 1999, Respondent filed a Chapter 7 bankruptcy action on behalf of the Altherrs in the U.S. Bankruptey Court for the District of Arizona. However, he did not file the schedules and statements _ contemporaneously. Within days, the Altherrs received a notice from the U.S. Trustee that requested the same documents Ms. Altherr previously had delivered to Respondent. When she telephoned Respondent to inquire about the notice, he stated he had taken care of everything.

113 On August 26, 1999, the court dismissed the Altherr's bankruptey petition for failure to file schedules and a statement of affairs. They learned of the dismissal when they telephoned the court to inquire about it. When Ms. Altherr called Respondent to discuss the dismissal, he told her he would talk to White. She assumed Respondent would handle the matter and call her back.

[ 14 In September 1999, the Altherrs went to WPA's office and signed the necessary paperwork to file a second bankruptey. Subsequently, White and Respondent stated they had filed a second bankruptey and the Alth-errs would receive notice of a Section 841 hearing soon. The Altherrs became concerned when a stranger tacked a motion and summons concerning an action for foreclosure to their front door, then photographed it. When the Altherrs telephoned Respondent, he again told them not to worry, that he had filed the second bankruptcy.

T15 On December 16, 1999, Respondent filed a Motion to Reinstate the first bank-ruptey, along with the requisite schedules and statements. Respondent's Disclosure of Compensation of Attorney for Debtor falsely reflects the Altherrs had not paid his attorney's fees at the time of filing. Ms. Altherr spoke with Respondent the following day, and he admitted the second bankruptey had not been filed in September, blaming the oversight on White. Respondent stated he had terminated his arrangement with White because of similar problems. Respondent also stated he had filed the necessary papers to reinstate the first bankruptey and that the Altherrs need not appear at the court date noticed in the foreclosure pleadings. Respondent again assured them he would "take care of it." The Altherrs then paid Respondent an additional $180 to have the bankruptcy reinstated.

16 In an order filed April 26, 2000, the Respondent was ordered to "expeditiously transfer his open bankruptcy files to another attorney ... or withdraw from representation of debtors in those cases." The order also instructed the Respondent to notify his clients of the order and to send them a copy thereof. The order also stated the court found cause to issue a temporary restraining order against the Respondent prohibiting him from accepting new bankruptcy cases. But, based on Respondent's avowal to the court on April 18 that he was no longer taking or accepting new bankruptey clients, the court chose not to issue the restraining order.

[17 On January 4, 2000, the court denied Respondent's Motion for Reinstatement because he did not provide a reason why the missing documents were not filed promptly, along with a request for reinstatement, after the case was dismissed on August 26, 1999. Ten days later, the court entered an Order to Pay Reopening Fee and vacated the order denying the Respondent's Motion to Reinstate. Respondent told the Altherrs they need not appear at the Section 341 hearing scheduled for January 31, 2000, because it would be rescheduled. However, it was not rescheduled and the Altherrs and Respondent failed to appear.

T18 Respondent neglected to inform his clients or the court that he would not appear. On February 22, 2000, the court entered an order dismissing the Altherr bankruptey case because no one had appeared at the Section 341 hearing. Again, Respondent failed to inform his clients that their case had been dismissed. The Altherrs learned of this development when they received an Order from the bankruptcy court advising them of the dismissal due to their failure to appear at the Section 341 hearing. When they telephoned Respondent, he promised he had "spoken with the Trustee and that it had been taken care of." The Altherrs believed the problem was resolved and expected notice of a second Section 341 hearing.

19 On March 2, 2000, Respondent filed a Motion to Reinstate the Altherr bankruptey. On March 10, he told the Altherrs a hearing to reinstate their bankruptcy was scheduled for April 7, 2000. He again informed them that they need not attend, and on April 5, 2000, the court denied the Motion to Reinstate and directed that if the bankruptey was refiled, it would be assigned to the same judge. Respondent informed the Altherrs their bankruptcy petition could not be reinstated and must be refiled. He failed to tell them it had been dismissed April 27, 2000. Over the next few months, Respondent offered his clients various explanations as to why he had not prepared the necessary forms for re-filing.

£120 On July 11, 2000, the Respondent informed the Altherrs the forms were prepared and ready for their review and signature. They picked them up and returned the signed copies to Respondent within a few days, with the understanding their bankrupt-ey would immediately be re-filled. As of August 1, 2000, Respondent still had not filed the Altherrs' bankruptcy or returned any of their multiple phone calls. On that day, the Altherrs retrieved their file from WPA Asso-clates. They never spoke with him again.

121 Respondent's misconduct prejudiced the Altherrs, Their residential mortgage was foreclosed, forcing the couple and their child to vacate their home and move into an apartment.

Representation of Joy Griggs

122 Joy Griggs was another bankruptcy client of Respondent who was referred to him by Ray Armbruster, after receiving correspondence from WPA regarding a threat of mortgage foreclosure on her home. Griggs and her father met with Respondent on October 4, 1999, and she paid him a $1060.00 retainer to file a bankruptcy action on her behalf. Respondent assured her she would keep her home and informed her that a Chapter 13 reorganization would allow her to become current on her mortgage payments and the arrearage, and thereby retain her residence.

23 On October 6, 1999, Respondent filed a Chapter 18 bankruptey on behalf of Griggs in the U.S. Bankruptey Court for the District of Arizona. On November 16, 1999, Chase Mortgage Company, who held the mortgage on Griggs' residence, filed an objection, to which Respondent never filed a response.

1 24 Respondent advised Griggs she needed to attend a Section 341 hearing on November 17, 1999, and that he would be in attendance. However, Respondent failed to appear and did not inform the court or his client he would not appear. Griggs proceeded with the Section 341 hearing without the benefit of legal counsel. Following the missed hearing, Griggs attempted to contact Respondent many times, calling him "several times a day for several days." She estimated she left ten to twenty messages Respondent failed to acknowledge.

T 25 On February 18, 2000, the U.S. Trustee filed a recommendation directing the Respondent to take action responsive to the concerns raised by Chase Mortgage Company. The recommendation warned that if compliance with the Trustee's recommendation and an order confirming plan were not received by March 15, 2000, the Trustee would lodge an Order of Dismissal with the court. This recommendation was mailed to both Respondent and Griggs. Respondent called Griggs and requested she provide him with various income and financial documents he had not previously requested. On March 3, 2000, Griggs provided the requested documentation (approximately ten days after it was requested by the Respondent.) However, Respondent never filed a response to the Trustee's Recommendations.

126 On April 10, 2000, Respondent telephoned Griggs to inform her the U.S. Trustee recommended dismissal of her bankruptcy and it would be necessary to re-file. He told Griggs he had written the court a letter about his delay in responding to the court's demand for more documentation, but the court had ignored his letter. After a request from Respondent, Griggs delivered documentation to his office on April 12, 2000. In her testimony, Griggs stated she provided duplicate documentation to Respondent a minimum of three times. At this meeting on April 12, 2000, Respondent informed Griggs he could no longer represent her due to a conflict of interest. The following day, Respondent telephoned Griggs and said her house would be up for sale on April 25. She has not heard from Respondent since.

T27 On April 26, 2000, an order was entered dismissing Griggs' bankruptcy because Respondent never provided the requested documentation. Griggs was prejudiced by Respondent's misconduct. She lost her residence in foreclosure proceedings, and she and her children were forced to move in with her father.

Representation of Richard and Sybilla Augustine

28 In November 1998, Richard and Sybil-la Augustine met with an agent of WPA after receiving mail regarding a threat of foreclosure on their home. The WPA agent referred them to Respondent, saying bankruptcy was the only option. They paid a $900.00 retainer to Respondent, to file a bankruptcy action on their behalf. Respondent assured them a Chapter 13 reorganization would allow them to become current on their mortgage payments and arrearage, and thereby retain their residence.

129 According to Mrs. Augustine's testimony, Respondent told them the bankruptcy court would discharge her - husband's $27,157.50 child support arrearage, unless his former wife filed an objection. Mrs. Augustine also testified Respondent told them they could avoid future child support collection efforts by changing Mr. Augustine's social security number.

T30 On December 1, 1998, Respondent filed a Chapter 13 bankruptcy on behalf of the Augustines in the U.S. Bankruptey Court for the District of Arizona. Respondent did not file the requisite schedules and statements until December 18, 1998. The child support arrearage was listed in the bankruptcy schedules. On December 22, 1998, Respondent filed a Chapter 13 Plan which did not list the child support arrearage. The Plan made no mention of, or payment proposal regarding, that arrearage. Respondent's oversight was not discovered until after the Plan was confirmed. By letter dated May 2, 2000, the U.S. Trustee advised Respondent that the plan did not address the $27,150.50 child support claim.

131 On May 16, 2000, Respondent filed a Motion to Withdraw from the bankruptcy. The Motion stated that the debtors had agreed to discontinue the attorney-client relationship. The Augustines were unaware Respondent intended to withdraw until they received this motion in the mail.

132 Respondent's failure to include the child support arrearage in the Chapter 18 Plan resulted in a $9,556 shortfall that prohibited the plan's confirmation. As a result, Chapter 18 reorganization became unavailable to the Augustines. On May 30, 2000, the court dismissed the Augustine's bankruptcy because they were delinquent in their Plan payments.

33 On April 17, 2001, the Supreme Court of Arizona publicly censured Respondent for, inter alia, the misconduct cited above. Seq, In the Matter of Mothershed, Supreme Court No. SB-01-0076-D, 2001 Ariz. LEXIS 63. Public censure serves as the harshest penalty the Arizona Supreme Court may impose on a person not a member of the Arizona Bar Association.

1 34 In May 1998, the OBA opened a General Counsel's investigation as a consequence of the Arizona Bar Association investigation. On May 13, 1998, OBA General Counsel Dan Murdock wrote Respondent a letter requesting him to respond within twenty days to allegations of possible unlawful practice of law in Arizona. Respondent failed to respond within the time set forth. On June 11, 1998, Respondent mailed a one-page letter to Mr. Murdock that did not address the allegations and threatened suit against the OBA. Respondent mailed Murdock a second letter dated June 19, 1998, which again failed to address the allegations. On August 6, 1998, Murdock advised Respondent by letter that his responses did not satisfy the requirements of Rule 5.2, RGDP, and advised him of the deadline to supplement his response. Respondent never addressed the allegations brought against him.

Enhancements

4 35 Respondent displayed a calculated indifference or hostility toward this proceeding since his initial Answer filed with the Court on February 19, 2002, wherein he threatened the members of the Supreme Court in this matter:

"... to prevent this Court, its members, Petitioner, and it's (sic) Prosecutors becoming embroiled in litigation in Arizona this Court should abstain from further proceedings herein and possible substantial personal civil ability and damages."

1 36 Respondent has made multiple similar threats against the Court, the Trial Panel, and Complainant's witnesses. He illustrated his contempt for the disciplinary process, this proceeding and this Court by ignoring orders of the Presiding Master, failing to appear for witness depositions and refusing to respond to proposed Stipulations.

T 37 On April 16, 1991, the Supreme Court of Oklahoma entered an Order publicly censuring Respondent. See, OBA v. Mothershed, 1991 OK 36, 812 P.2d 382. The Court found on two occasions, Respondent gave conflicting testimony under oath, "only one of which could reasonably have been believed by the speaker to have been the complete truth." The Court also found it noteworthy that Respondent states he does not practice law.

188 Respondent's failure to disclose that he was not a member of the Arizona Bar, and had not been admitted pro hac vice in pleadings filed with that court constitute false statements of fact to the tribunal in violation of Rule 3.3(a)(1), ORPC . Furthermore, Respondent's failure to disclose jurisdictional limitations is a misrepresentation which violates Rule 4.1(a) and Rule 7.1(a)(1) ORPC . By filing pleadings in a state court where he was not licensed and giving legal advice, Respondent engaged in the unauthorized practice of law, a violation of Rule 5.5(a), ORPC .

139 Respondent's conduct in dealing with the OBA and General Counsel violate Rule 5.2, RGDP . Respondent assisted White in giving legal advice and preparing pleadings, a violation of Rule 5.5(b), ORPC . By hiring White to perform services, Respondent knew were a violation of the bankruptcy court's March 6, 1998, order, Respondent violated Rule 8.4(d) ORPC . Violation of these rules constitutes grounds for professional discipline.

T40 Respondent's conduct in failing to properly represent his clients and keep them informed violated Rules 1.1 , 1.3 , 1.4 , 1.16(d) and 8.4(c) ORPC and constitutes grounds for professional discipline.

T41l Rule 54, Rules Governing Disc? plinary Proceedings, 5 0.8. ch. 1, app. 1-A (1997 Supp.) provides that the "threat of litigation by a respondent lawyer against a person filing a grievance by reason of such filing may be grounds in itself for discipline." In addition, Respondent's contempt and lack of respect toward the Court and the disciplinary process serve to enhance discipline.

942 Consideration of prior discipline serves to aid the Court in making its decision, OBA v. Minter, 1998 OK 59, 961 P.2d 208. Respondent's prior discipline serves to enhance any discipline to be imposed in this proceeding, Rule 6.2, RGDP .

143 This Court has repeatedly emphasized that the purpose of disciplinary proceedings is not to punish the attorneys involved, but to protect the public. This need is clearly evident in the case at hand. Respondent's actions not only tarnish the image of all Oklahoma attorneys, but resulted in severe financial hardships for his clients. Several of Respondent's clients might have retained their homes had they retained counsel other than the Respondent. Through witness testimony, evidence and the actions of Respondent himself, the Complainant has established by clear and convincing evidence that Respondent, George L. Mothershed, has multiple violations of the rules of professional conduct. Therefore, Respondent is hereby disbarred and assessed the costs of this proceeding, in the amount of $6,919.08, to be paid within 90 days of the date of this order.

RESPONDENT IS HEREBY DISBARRED AND ASSESSED COSTS.

WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, JJ., concur.

SUMMERS, J., not participating.

      . Rule 3.3(a)(1) states:
      "(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal;"

      . Rule 4.1(a) states:
      'In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person;"

      . Rule 7.1(a)(1)states:
      "(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it is:
      (1) a communication which contains a material misrepresentation of fact or law, or omits information necessary to make the communication, considered as a whole, not materially misleading;"

      . Rule 5.5(a) states:
      "A lawyer shall not:
      "(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction."

      . Rule 5.2 states:
      "After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete' or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance (or, in the case of an investigation instituted on the part of the General Counsel or the Commission without the filing of a signed grievance, a recital of the relevant facts or allegations) upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon expressed constitutional grounds. Deliberate misrepresentation in such response shall itself be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall make such further investigation of the grievance and response as the General Counsel may deem appropriate before taking any action."

      . Rule 5.5(b) states:
      "A lawyer shall not: (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."

      . Rule 8.4(d) states:
      "It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice."

      . Rule 1.1 states:
      "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

      . Rule 1.3 states:
      "A lawyer shall act with reasonable diligence and promptness in representing a client."

      . Rule 1.4 states:
      "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

      . Rule 1.16(d) states:
      "(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

      . Rule 8.4(c) states:
      "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;"

      . Rule 6.2 states:
      The complaint shall set forth the specific facts constituting the alleged misconduct, and if prior conduct resulting in discipline, or evidence from prior investigations, is relied upon to enhance discipline, the prior acts or conduct relied upon shall be set forth."


author: HARGRAVE, J.

text:
    2003 OK 32
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jack R. DURLAND, Jr., Respondent.
    No. SCBD 4334.
    Supreme Court of Oklahoma.
    March 18, 2003.
    Dan Murdock, General Counsel, Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Darquita L. Maggard, Durland & Mag-gard, Oklahoma City, OK, for Respondent.
   HARGRAVE, J.

11 Disciplinary proceedings were initiated against respondent, Jack R. Durland, Jr., by Complainant, the Oklahoma Bar Association, which in substance charged respondent with converting funds for his own use from a trust under which he served as co-trustee, thus violating his fiduciary duty. The Oklahoma Bar Association further alleged that respondent made misrepresentations to William T. Durland and Mrs. Pederson stating that the money was being invested in Certificates of Deposit. When pressured about the Certificates of Deposit, respondent sent bogus certificates to Mr. Durland and Mrs. Pederson. Finally, the Bar alleges that respondent failed to provide a full and fair response to the merits of the grievance filed against him. The Professional Responsibility Tribunal (PRT) found respondent guilty of misconduct and recommends disbarment. We, likewise, find misconduct that warrants discipline. We disbar respondent.

STANDARD OF DETERMINATION IN BAR DISCIPLINARY PROCEEDINGS

[2 In State ex rel. Oklahoma Bar Association v. Miskovsky, 1991 OK 88 ¶ 4, 824 P.2d 1090, we set out the standard of review in attorney disciplinary proceedings. We held:

In disciplinary matters we are a licensing court acting in the exercise of our exclusive jurisdiction. State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 894 (Okla.1989). Our determinations are made de novo and neither the findings of fact of the PRT nor its view of the weight of the evidence or credibility of witnesses are binding on us. Id. Further, no presumption of correctness attaches to the findings or conclusions of the PRT. Id; State ex rel. Oklahoma Bar Association v. Braswell, 663 P.2d 1228, 1230 (Okla.1983). Although a PRI's recommendations are accorded great weight they are merely advisory. The ultimate decision-making authority rests with us. McMillian, supra; State ex rel. Oklahoma Bar Association v. Samara, 683 P.2d 979, 984 (Okla.1984). - Finally, to warrant a finding against a lawyer in a contested case the charges must be established by clear and convincing evidence. - Rule 6.12, Rules Governing Disciplinary Proceedings, 5 0.8. 1981, Ch. 1, App. I-A.
Miskovsky, 824 P.2d at 1093.

With these principles in mind we turn to a discussion of the misconduct charged.

FACTS OF MISCONDUCT

T3 Judith Pederson and Respondent were trustees of their uncle William T. Durland's trust. - This trust contained more than $400,000.00 in real property stocks and cash. William T. Durland lived with Mrs. Pederson and she paid the personal bills for her uncle out of the trust. Respondent was responsible for the investments, taxes and other aspects of the trust. The cash assets of the trust were originally placed in a Merrill-Lynch account. Mrs. Pederson became aware that funds had been diverted from this account. Respondent assured Mrs. Pederson that the funds had been moved into certificates of deposit with Boatmen's bank, and that the cash was earning higher interest. Respondent sent several letters to Mrs. Ped-erson and William T. Durland asserting that the funds had in fact been moved. Respondent admitted to sending these letters.

14 Mrs. Pederson sought copies of the Certificates of Deposit and repeatedly asked for copies from Respondent. Respondent was not eager to send any documents, and when Mrs. Pederson finally received copies of these documents from the Respondent, she took the certificates to the bank and discovered that they were bogus. Respondent acknowledged that there were no certificates, but that the trust had "loaned" the money to Respondent's professional corporation. Respondent stated that he was close to his uncle and had discussed with him the necessity of the trust lending the funds to him. The uncle did not recall any such agreement. We find that Respondent's falsifying of the certificates of deposit to be proven by clear and convincing evidence. Having found this action proven, we decline to address any of the other issues presented, as this act clearly warrants discipline.

DISCIPLINE

T5 In Miskovsky, 1991 OK 88 ¶40, 824 P.2d at 1101, we held the following concerning discipline in attorney misconduct cases:

The purpose of a disciplinary proceeding is not to punish the lawyer, but to inquire into his continued fitness to practice with a view to safeguarding the interest of the public, the courts and the legal profession. State ex rel. Oklahoma Bar Association v. Raskin, 642 P.2d 262, 267 (Okla.1982).

T6 This conduct is a violation of the Oklahoma Rules of Professional Conduct, 5 O.S. Supp.1988, Ch. 1, App. 3-A, Rules 8.4(b) and (c), which provide respectively, it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation ...."

T7 Fraud and misrepresentation by an attorney toward his client are serious forms of misconduct. Although he was not in a lawyer-client relationship with his relatives, he was in a relationship of trust which he betrayed over an extended period of time. If the situation had involved a lawyer-client relationship, the discipline here would surely be disbarment.

18 In Oklahoma Bar Association v. Thomas, 1995 OK 145, ¶7,8, 911 P.2d 907, This Court was faced with a similar situation. As part of Thomas' misrepresentation(s) to his client, Thomas falsified court documents by photocopying the file stamp of the Clerk of the Oklahoma Supreme Court in an unrelated case, altering pertinent parts of an order in an unrelated case to make it appear applicable to the appeal in his client's case. Thomas admitted to all of the misconduct, including falsification of the order. We disbarred Thomas finding:

Fraud and misrepresentation by an attorney toward his client are serious forms of misconduct. State ex rel. Oklahoma Bar Association v. Brown, 863 P.2d 1108, 1111 (0k1a.1993). Likewise, the forging of legal documents is a serious breach of legal ethics which constitutes illegal conduct involving moral turpitude and justifies imposition of the most severe discipline. State ex rel. Oklahoma Bar Association v. Colston, supra, 777 P.2d at 924. Such misconduct, coupled with neglect of client matter(s) and a record of previous discipline has resulted in disbarment. State ex rel. Oklahoma Bar Association v. Brown, supra.

9 Additionally, in Oklahoma Bar Association v. Moore, 1987 OK 21, 741 P.2d 445, this Court was again faced with an attorney who falsified documents. This Court disbarred the attorney as a result of this misconduct. Moore's misconduct resulted from his representation of clients in probate actions. In the first action, Moore filed the petition for settlement of final account, determination of heirship and distribution which related that all taxes had been paid. The probate judge, at the trial of this matter, testified that Moore had stated in conjunction with the petition, that, although the taxes had not yet been paid, the funds had been reserved and arrangements made for payment. The decree of settlement in the estate was entered.

10 Subsequently, the IRS contacted the heir and informed her that $50,268 in estate taxes were due plus $18,506.19 in interest and penalties, and there was also a $239.60 bad check charge for a check submitted by Moore. - Investigation revealed that the Oklahoma estate taxes had not been paid and $56,002.82 was owing for taxes plus $13,140.78 in interest. The evidence at trial also revealed that Moore, personally or through his office, had provided a fraudulent tax release to the heir showing the Oklahoma taxes to have been paid. The heir eventually had to mortgage the property passed to her in the estate to pay the taxes. Moore eventually paid 'his client what was owed her.

{11 In another matter, Moore admitted "borrowing" some $484,876.00 from another estate, a good portion of which was clearly shown to have gone for Moore's personal purposes. Moore's defense on this count was that his two coexecutors in the estate had acquiesced to his actions and that they had told him that the beneficiary who was to receive the cash assets of the estate also consented to his use of the funds.

112 This Court found that coexecutors acquiesced neither to the misuse of funds nor to Moore's signature of their names to checks drawn on the estate account. We found that the evidence supported the trial tribunal's conclusion that the names of Moore's coexecutors on checks drawn on the estate account were, in several instances, forgeries.

(13 In the present matter, Durland's actions were no less severe than those committed in Moore and Thomas. Durland's acts involved misrepresentation, deceit and fraud. These acts are reprehensible and are the type from which the public needs protection. In State v. Raskin, 1982 OK 39 ¶16 642 P.2d 262 this Court opined:

Our task in cases such as this is to protect the public and to preserve the public confidence in the legal profession and in the judiciary that licenses them. The relationship between a lawyer and a client calls for the highest degree of integrity and fidelity. Nothing less can be tolerated. Lawyers stand licensed by the Supreme Court for the practice of their profession. The maintenance of strict integrity among the members of our bar is one of this court's constitutional responsibilities. Every licensed lawyer is presented to the public as a person worthy of confidence in the performance of all professional activities. If he should become unfit, it is our duty promptly to withdraw the endorsement for the immediate protection of the public.

14 Respondent also failed to provide full and complete information directed toward the merits of the investigation thus violating Rules 8.1(b) and 8.4(d) and Rule 5.2 of the RGDP. Respondent repeatedly failed to provide the required response. Even though Complainant's motion to compel production of documents was granted and ordered by the Tribunal, Respondent continued to fail to comply and produce the requested documents or information including the day of trial.

1 15 We have also recognized that mitigating evidence or cireumstances may be considered in arriving at what is the appropriate discipline. State ex rel. Oklahoma Bar Association v. Raskin, 1982 OK 89 ¶ 17, 642 P.2d 262, 267. We turn to the mitigating evidence in the record before us. Respondent has practiced law in the State of Oklahoma for thirty-six years without any type of complaint being filed against him prior to the commencement of this action. Additionally, the entire amount of the funds taken by Respondent was repaid after a lawsuit was instigated for the return of the $220,000.

116 Although mitigating evidence may persuade us in cases involving lesser forms of misconduct, we believe the actions involved here, the forged certificates of deposit, go to the heart of respondent's fitness to practice law. No less severe punishment is warranted on this record.

€ 17 Accordingly, we order that respondent be disbarred and his name stricken from the roll of attorneys. Further, the costs associated with this disciplinary proceeding in the amount of $3,829.61 shall be borne by respondent. They are to be paid within 90 days from the date this opinion becomes final.

RESPONDENT IS DISBARRED AND HIS NAME IS ORDERED STRICKEN FROM THE ROLL OF ATTORNEYS. RESPONDENT ORDERED TO PAY COSTS OF $3,829.61.

18 CONCUR: WATT, C.J., HODGES, LAVENDER, KAUGER, BOUDREAU and WINCHESTER, JJ.

19 DISQUALIFIED: OPALA, V.CJ., and SUMMERS, J.


author: OPALA, V.C.J.

text:
    2003 OK 29
    STATE of Oklahoma ex rel. Margaret B. FENT and Jerry R. Fent, as State of Oklahoma resident taxpayers, Plaintiffs/Appellants, v. STATE of Oklahoma ex rel. OKLAHOMA WATER RESOURCES BOARD; State of Oklahoma ex rel. Water Conservation Storage Commission; and J. Ross Kirtley, Richard McDonald, Dick Seybolt, Lonnie Farmer, Grady Grandstaff, Ervin Mitchell, Bill Secrest, Richard Sevenoaks, and Wendell E. Thomasson, as individuals and as members of the Oklahoma Water Resources Board and the Water Conservation Storage Commission; and The United States of America ex rel. Department of Defense, Department of The Army and its Corps of Engineers, Defendants/Appellees.
    No. 96,276.
    Supreme Court of Oklahoma.
    March 18, 2003.

      William A. Pipkin, Moore, OK, for Plaintiffs/Appellants.
    Andrew Tevington and E. Clyde Kirk, Assistant Attorneys General, Oklahoma City, OK, for Defendants/Appellees.
   OPALA, V.C.J.

{1 The dispositive issue in this taxpayers' gui tam action is whether summary judgment was correctly given to defendants. We answer this question in the affirmative. Although like the Court of Civil Appeals, we affirm the trial court's ruling, we disagree with the appellate court's decision to resolve the critical issue on constitutional grounds when legal relief is available on an alternative, non-constitutional basis. We hence vacate the appellate court's opinion and affirm the summary disposition of taxpayers' claim.

ANATOMY OF LITIGATION

2 The Flood Control Act of 1962 authorized the United States Army Corps of Engineers (the Corps) to construct the Clayton Reservoir on the Kiamichi River in Oklahoma "in accordance with the recommendation of the Chief of Engineers in Senate Doe. 145, 87th Cong., at an estimated cost of $29,748.00" (the project). The project was to have multiple purposes, including water supply. Under the provisions of the federal Water Supply Act of 1958, any non-federal interest that benefits from the water supply component of a federal project must agree to pay for the share of construction costs allocated to water supply.

3 In the 1970's, decisions regarding state participation in water supply projects in Oklahoma were among the duties of a state commission known as the Water Conservation Storage Commission (WCSC). As the non-federal participant in the Clayton Reservoir project, later renamed Sardis Lake, the WCSC in 1974 entered into a contract (the contract) with the Corps under which the WCSC agreed to pay the costs of the project allocated to water supply, then estimated to be $16,399,000. Under the contract, approximately $7.8 million was allocated to storage for present demand and approximately $8.5 million was allocated to storage for future demand. With respect to storage for present demand, the contract states:

The amount of the Project investment costs allocated to the storage for present demand shall be paid in 50 consecutive annual installments, the first of which shall be due and payable within 80 days after the User [the WCSC] is notified by the contracting Officer that the Project is completed and operational for water supply purposes. Annual installments thereafter will be due and payable on the anniversary date of the first payment. Except for the first payment which will be applied solely to the retirement of principal, all installments shall include accrued interest on the unpaid balance ...." (emphasis added)

Payments of principal and interest allocated to future demand storage space were not required to begin until ten years after the project became operational unless the State commenced using that storage space during that period.

1 4 In addition to contracting to repay the project's construction costs, the WCSC also agreed to pay a percentage of the annual operating and maintenance costs, to pay a portion of the costs of any major capital replacement items, and to hold the Corps harmless from liability for damages incurred on account of the water storage component of the project. The contract does not give the WCSC a right to terminate the agreement or otherwise to be relieved of its contractual obligations, but as permitted by federal law, it contains the following provision:

"The parties agree that this contract is not an obligation for which the full faith and credit of the State of Oklahoma is pledged. Nothing herein shall be construed as legally obligating the Oklahoma Legislature to make any appropriation of funds."

5 Finally, the contract recites the opinion of the Oklahoma Attorney General that the WCSC is acting within its authority in entering into the contract.

"I 6 The project became operational for water storage purposes on 6 January 1988 and the Corps notified the Oklahoma Water Resources Board (the OWRB or the Board), which had assumed the functions of the WCSC in 1979, that the first installment, together with the operating and maintenance costs for the ensuing year, was due within thirty (30) days. Because the legislature had not appropriated funds for the first payment in the FY83 budget, the OWRB could not make the first payment until after the start of FY84. The payment was hence not made until 17 August 1983 and thus began a still-unresolved dispute over the state's liability for interest on late payments. The OWRB made periodic payments between 1983 and 1997 amounting to $4,414,700.69 and incurred an arrearage by the time this action was brought in excess of $8,000,000.00.

17 A group of taxpayers in 1997 served on the OWRB and its members a written demand that the Board "authorize and diligently prosecute an action to recover" from the federal government all payments made under the contract. The group's demand asserted that the contract creates a state debt in violation of the budget balancing provisions of the Oklahoma Constitution, Article 10, § 23, § 24, and $ 25. The Board denied the group's request.

18 Two of the taxpayers who had issued the written demand, Margaret B. Fent and Jerry R. Fent (taxpayers) filed this gui tam action pursuant to the provisions of 62 0.S$.1991, § 372 and 62 0.8.1991, § 373, haling into court as statutory defendants the State of Oklahoma ex rel. the OWRB and ex rel. the WCSC and as real-party defendants the United States of America, the Department of Defense, the Army Corps of Engineers (collectively the United States or the federal defendants) and the nine individuals who were served with the written demand and who sat on the OWRB at the time the action was filed (defendants or individual defendants).

T9 The petition alleged that the contract between the WCSC and the Corps violated the Oklahoma Constitution and that all payments made pursuant to the contract were therefore unlawful. The petition further alleged that the individual defendants had wrongfully refused to prosecute an action for the return of the funds from the United States. Taxpayers sought to hold the federal and individual defendants jointly and severally liable under the gui tam statutes for the return to the State of Oklahoma of all public funds paid under the contract and for treble damages of $18,244,102.07, half of which would be payable to them and half to the State.

1 10 The cause was removed by the federal defendants to the United States District Court for the Western District of Oklahoma. That court dismissed taxpayers' claim against the federal defendants on sovereign immunity grounds and dismissed without prejudice taxpayers' claim against the remaining defendants-the State ex rel. the state agencies and the individual defendants-on the grounds of Eleventh Amendment immunity. Taxpayers appealed. The Tenth Cireuit Court of Appeals affirmed the dismissal as to the federal defendants, but vacated the dismissal of the claim against the state defendants and remanded the cause to the federal district court with directions that the claim against the state defendants be remanded to state court.

{11 Upon remand to Oklahoma County District Court, taxpayers filed a motion for summary judgment, arguing that the uncon-troverted facts, consisting of the contract and the conduct of state officials in carrying it out, established that the contract violated the constitutional prohibition on contracting debt and that they were hence entitled to judgment as matter of law. Defendants filed their own motion for summary judgment, arguing that the contract is not unconstitutional, but even if it were, the members of the Board cannot be held civilly liable under the gui tam statutes because their actions were taken in conformity with the advice of the state Attorney General that the contract was lawful.

112 The trial court gave judgment to defendants without elaboration. Taxpayers appealed and the Court of Civil Appeals affirmed, adopting defendants' contention that the contract does not violate the state Constitution. We granted certiorari on taxpayers' petition. While we agree that summary judgment is defendants' due, we vacate the appellate court's opinion because we deem it unnecessary to reach the constitutional issue. Where the legal relief sought is affordable on non-constitutional grounds, consideration of constitutional infirmities is deemed precluded by a self-erected "prudential bar" of restraint. There is no need in this case to determine the constitutionality of the contract because the defendants cannot in any event be held civilly liable for treating the contract as lawful in conformity with the advice of the Attorney General.

If

STANDARD OF REVIEW ON SUMMARY PROCESS

118 Summary process-a special pretrial procedural track pursued with the aid of acceptable probative substitutes -is a search for undisputed material facts which, sams forensic combat, may be utilized in the judicial decision-making process. Summary process is applied where neither the material facts nor any inferences that may be drawn from undisputed facts are in dispute, and the law favors the movant's claim or liability-defeating defense. To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary adjudication.

114 Summary relief issues stand before us for de novo examination. All facts and inferences must be viewed in the light most favorable to the non-movant. Just as nisi prius courts are called upon to do, so also appellate tribunals bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant. Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.

III

PUBLIC OFFICERS MAY NOT BE HELD CIVILLY LIABLE UNDER THE QUI TAM STATUTES WHEN THEY ACT IN CONFORMITY WITH AN OPINION OF THE ATTORNEY GENERAL THAT THEIR ACTIONS ARE LAWFUL

115 Defendants argue that the trial court's summary disposition in their favor was correct because a public official is insulated. from civil liability for actions taken in reliance upon the advice of the state Attorney General. We agree.

116 The state Constitution establishes the office of the attorney general. The duties and responsibilities of the Attorney General are prescribed by statute. As the state's chief law officer, the Attorney General has been entrusted with the duty of providing legal guidance to public officers and of advising them on questions of law which relate to their official duties. With the exception of an Attorney General's opinion that an act of the legislature is unconstitutional, an Attorney General's opinion is binding upon the state officials whom it af-feets. Public officers have the duty to follow Attorney General opinions until they are judicially relieved of compliance. Since a public officer's failure to heed the Attorney General's advice to perform a duty required by law can result in civil penalties, it also follows from sound principles of policy that one who acts in conformity with the Attor-mey General's advice should be afforded the law's protection from civil ability as well as from forfeiture of office, at least until a clear judicial pronouncement would indicate a different course of conduct.

117 Appended to the end of the contract at issue is the Attorney General's opinion that the contract is lawful. It states:

"It is my opinion that this contract is within the authority of the contracting agency and in reaching this conclusion I have considered the effect of Section 221 of the Flood Control Act 1970 (42 USC 1962d-5b)."

118 Acting on the Attorney General's advice, members of the WCSC and the OWRB, as well as successive governors and legislatures, have treated the contract at issue as lawful. For the defendants to have acted on taxpayers' written demand to obtain a refund from the United States of the state funds paid under the contract would have been in direct conflict with the advice given by the state's chief law officer charged with the duty of providing them with legal advice. "Sound principles of policy" dictate that public officials should be shielded from civil ability in such cireumstances. For this reason, we join in the trial court's view that summary judgment was defendants' due. That ruling is hence affirmed.

IV

SUMMARY

{19 We hold today that the defendant state officials, who treated as lawful a contract which taxpayers allege is constitutionally infirm, cannot be held liable under the gut tam statutes regardless of the contract's constitutionality because they acted in conformity with an opinion of the Attorney General that the contract was lawful.

120 THE COURT OF CIVIL APPEALS OPINION IS VACATED AND THE DISTRICT COURTS DISPOSITION BY SUMMARY JUDGMENT IS AFFIRMED.

1 21 WATT, C.J., and HODGES, LAVENDER, HARGRAVE, BOUDREAU and WINCHESTER, JJ., concur.

22 KAUGER and SUMMERS, JJ., concur in result.

      . A gui tam action is one brought under a statute that establishes a penalty for the commission or omission by a public official of a certain act and provides that the penalty shall be recoverable in a civil action, with part of it going to the one bringing the action and the rest to the state or a public body. United States ex rel. Marcus v. Hess, 317 U.S. 537, 542, 63 S.Ct. 379, 383 n. 4, 87 L.Ed. 443, 448 (1943); Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 34-35, 50 L.Ed. 157, 162 (1905); Abbadessa v. Tegu, 121 Vt. 215, 154 A.2d 483, 484 (1959); New Jersey S.P.C.A. v. Russ, 83 N.J.L. 450, 83 A. 961, 962 (1912); Stevenson v. Stoufer, 237 lowa 513, 21 N.W.2d 287, 289 (Iowa.1946); see also Black's Law Dictionary, 6th Ed. (1990) at p. 1251; Webster's Third New International - Dictionary - Unabridged - 1867 (1961). The term "gui tam" is an abbreviation of the longer Latin phrase "gut tam pro domino rege quam pro se ipso in hac parte sequitur," meaning "he who brings an action for the King as well as for himself." United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.Supp. 1084, 1086 (C.D.Cal.1989); see also W. Blackstone, Commentaries on the Law of England 160 (1768). Qui tam provisions, more than one court has astutely observed, are "passed upon the theory, based on experience as old as modern civilization, that one of the least expensive and most effective means of preventing frauds on the Treasury is to make the perpetrators of them liable to actions by private persons acting, if you please, under the strong stimulus of personal ill will or the hope of gain. Prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel." Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949, 117 S.Ct. 1871, 1877, 138 L.Ed.2d 135 (1997), (quoting United States v. Griswold, 24 F. 361, 366 (D.Or.1885)). In Marvin, supra, 199 U.S. at 225, 26 S.Ct. at 34-35, the Court noted: "Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our government. The right to recover the penalty or forfeiture granted by statute is frequently given to the first common informer who brings the action, although he has no interest in the matter whatever except as such informer."

      . Pub.L. 87-874, Title II, § 201 et seq., 76 Stat. 1173 (1962).

      . Id. at § 203.

      . - The Water Supply Act of 1958 is codified at 43 U.S.C. § 390b.

      . Id. The pertinent provisions of the Water Supply Act of 1958 state:
      "In carrying out the policy set forth in this section, it is hereby provided that storage may be included in any reservoir project surveyed, planned, constructed or to be planned, surveyed and/or constructed by the Corps of Engineers or the Bureau of Reclamation to impound water for present or anticipated future demand or need for municipal or industrial water, and the reasonable value thereof may be taken into account in the estimating the economic value of the entire project: Provided, That the cost of any construction or modification authorized under the provisions of this section shall be determined on the basis that all authorized purposes served by the project shall share equitably in the benefits of multiple purpose construction, as determined by the Secretary of the Army or the Secretary of the Interior, as the case may be: Provided further, That before construction or modification of any project including water supply provisions for present demand is initiated, State or local interests shall agree to pay for the cost of such provisions in accordance with the provisions of this section: And provided further, That not to exceed 30 per centum of the total estimated cost of any project may be allocated to anticipated future demands where State or local interests give reasonable assurances, and there is reasonable evidence, that such demands for the use of such storage will be made within a period of time which will permit paying out the costs allocated to water supply within the life of the project[.]"

      . The Legislature authorized the WCSC to enter into contracts with the federal government or its responsible agency, department, or instrumentality for the construction of water supply storage space. $2 0.$.2001, § 1085.21.

      . See Pub.L. 97-88, December 4, 1981, 95 Stat 1135, which changed the name of the project to Sardis Lake. It states:
      "Sec. 108. Clayton Lake which is an element of the flood control project for the Clayton and Tuskahoma Reservoirs, Kiamichi River, Oklahoma, authorized by section 203 of the Flood Control Act of 1962 (76 Stat. 1187), shall hereafter be known as 'Sardis Lake'. Any law, regulation, map, document, or record of the United States in which such lake is referred to shall be held and considered to refer to such lake as 'Sardis Lake'."

      . The project's cost was seriously underestimated. As of 2002, actual costs allocated to water supply were approximately $38 million. The contract authorized the Corps to determine the actual costs of construction and it was agreed that the WCSC's annual payment obligation would be adjusted accordingly.

      . Federal law requires the execution of a written agreement between the Army Corps of Engineers and State or local interests before construction of a water resource project may begin. See the provisions of 42 U.S.C.A. § 1962d-5b (a). It also recognizes that many state constitutions contain balanced budget restrictions, which affect the states' ability to contract long-term debt. Congress hence provided in § 1962d-S5b(a) that the following language may be included in water resource project contracts:
      "In any such agreement entered into by a State, or a body politic of the State which derives its powers from the State constitution, or a governmental entity created by the State legislature, the agreement may reflect that it does not obligate future appropriations for such performance and payment when obligating future appropriations would be inconsistent with constitutional or statutory limitations of the State or a political subdivision of the State."

      . The OWRB, a nine member Board, was created by the Legislature in 1957 to implement the public policy of the state in regard to the conservation and utilization of the state's waters. See 82 0.S.2001, § 1084.1 et seq.

      . Pursuant to the Oklahoma Sunset Law, 74 O.S. Supp.1980, § 3903, the WCSC was terminated on 1 July 1978 and ceased to exercise it powers, duties, and functions on 1 July 1979. Its extant obligations were assumed on that date by the Oklahoma Water Resources Board. See 82 ©.$.2001, § 1085.38.

      . The first annual installment was for $353,257.00. The operating and maintenance costs were $61,850.00. The total amount paid was $415,107.00.

      . The written demand was made pursuant to the provisions of 62 0.8.1991, § 373, which requires as a precondition of bringing a gui tam action that a written demand first be made upon the proper state officials to take specified action. The state officials must refuse or otherwise fail to take the requested action before a gui tam action may be brought.

      . The provisions of OKLA. CONST. Art. 10, § 23 state in relevant part:
      "'The state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma."

      . The provisions of OKLA. CONST. Art. 10, § 24 state in relevant part:
      "In addition to the above limited power to contract debts, the State may contract debts to repel invasion, suppress insurrection or to defend the State in war...."

      . The provisions of OKLA. CONST. Art. 10, § 25 state in relevant part:

        ''Except the debts specified in sections twenty-three and twenty-four of this article, no debts shall be hereafter contracted by or on behalf of this State, unless such debt shall be authorized by law for some work or object, to be distinctly specified therein; and such law shall impose and provide for the collection of a direct annual tax to pay, and sufficient to pay, the interest on such debt as it falls due, and also to pay and discharge the principal of such debt within twenty-five years from the time of the contracting thereof. No such law shall take effect until it shall, at a general election, have been submitted to the people and have received a majority of all the votes cast for and against it at such election. ..."

      . The pertinent provisions of 62 0.S.1991, § 372 state:
      "Every officer of the state ... who shall hereafter order or direct the payment of any money or transfer of any property belonging to the state ... in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for the state ... by any officer thereof ... shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the state ... for triple the amount of all such sums of money so paid, and triple the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of the state ... or of any resident taxpayer thereof, as hereinafter provided."

      . The pertinent provisions of 62 0.$.1991, § 373 state:
      "Upon the refusal, failure or neglect of the proper officers of the state ... after written demand made upon them by ten resident taxpayers of the state ... to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to the state ..., paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent, or void contract made, or attempted to be made, by any of its officers for the state ... or for the penalty provided in the preceding section, any resident taxpayer of the state ... affected by such payment or transfer after serving the notice aforesaid and after giving security for cost, may in the name of the State of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the State ... might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half (2) the amount of money and one half (%) the value of the property recovered in any action maintained at the expense of a resident taxpayer under this section, shall be paid to such resident taxpayer as a reward."

      . The provisions of 62 0.$.1991, § 373 require the qui tam plaintiff to name the State (or other relevant public body) as a defendant, but the public body's status is that of a statutory party beneficiary. State ex rel. Trimble v. City of Moore, 1991 OK 97, ¶19, 818 P.2d 889, 895. The gui tam plaintiff wages war on behalf of the public body whose money has allegedly been unlawfully expended or whose property has allegedly been unlawfully transferred. If the battle is won, the "spoils of war" go to the public body and a reward is conferred upon the gui tam plaintiff. Trimble, supra. Although § 373 refers only to a "municipality" in the context of naming the affected public body as a defendant, it was clearly the intent of the Legislature that any governmental body on whose behalf a gui tam action is brought should also be named as a defendant. Moser v. Liberty Mutual Ins. Co., 1986 OK 78, ¶6, 731 P.2d 406, 409; State ex rel. Scott v. State ex rel. University Hosp. Authority, 1994 OK CIV APP 163, ¶¶9-11, 887 P.2d 1385, 1387.

      . See Fent v. Oklahoma Water Resources Board, 235 F.3d 553 (10th Cir.2000).

      . Rules for District Courts of Oklahoma, 12 0.$.2001, ch. 2, app., Rule 13(e) provides:
      "e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party."

      . The prudential rule of necessity, adhered to by all state and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity. - In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶13, 927 P.2d 558, 565; In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, 12, 813 P.2d 1019, 1037 (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., 1987 OK 3, ¶2, n. 3, 732 P.2d 466, 468, n. 3; I.N.S. v. Chadha, 462 U.S. 919, 936, 103 S.Ct 2764, 2776-77, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). See also Schwartz v. Diekl, 1997 OK 115, ¶9, 568 P.2d 280, 283; Dablemont v. State Dept. of Pub. Safety, 1975 OK 162, ¶9, 543 P.2d 563, 564.

      . After the Court of Civil Appeals issued its opinion, taxpayers filed a motion for a stay of the proceedings in state court pending the outcome of an action filed in 1998 in the United States District for the Northern District of Oklahoma, No. 98CV521-K-(E), in which the United States sued the State of Oklahoma and the OWRB, seeking (1) a declaratory judgment on the duties and obligations of the State of Oklahoma under the contract at issue in this case, (2) injunctive relief directing the State to specifically perform the contract, and (3) injunctive relief estopping the State from claiming it is not liable to the United States under the contract. Defendants' response to the motion, which identified the federal case as No. C-521(B), states that the federal district court administratively closed the case on 27 May 1999 pending the outcome of the instant case. The only pleading filed in the federal case which is tendered by the record in this case is the United States' complaint, which for obvious reasons does not raise the constitutional issue urged by taxpayers in this case. Whether that issue was raised in the federal lawsuit by other pleadings cannot be determined from this record.

      . " 'Acceptable probative substitutes' are those which may be used as 'evidentiary materials' in the summary process of adjudication." Jackson v. Okla. Memorial Hosp., 1995 OK 112, ¶15, n. 35, 909 P.2d 765, 773, n. 35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, ¶18, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 926-27.

      . The focus in summary process is not on the facts which might be proven at trial, but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n., 1998 OK 113, ¶7, 980 P.2d 109, 112; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶8, n. 15, 777 P.2d 932, 936, n. 15.

      . . Polymer, supra note 25 at ¶ 8, at 113.

      . Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, ¶11, 909 P.2d 776, 781.

      . - An order that grants summary relief, in whole or in part, disposes solely of law questions. It is thus reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.").

      . Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053.

      . Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).

      . It is not the purpose of summary process to substitute a trial by affidavit for one by jury, but rather to afford a method of summarily terminating a case (or eliminating from trial some of its issues) when only questions of law remain. Russell, supra note 27, at 503; Bowers v. Wimberly, 1997 OK 24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶15, 586 P.2d 726, 730.

      . The Court of Civil Appeals' opinion did not address this issue. Our pronouncement in Hough v. Leonard, 1993 OK 112, 867 P.2d 438, teaches that the prevailing party in the Court of Civil Appeals may obtain this court's review of issues properly raised and briefed on appeal, but not addressed by the intermediate appellate court, withéut filing a petition for certiorari. Id. at %18, at 446; Rule 1.180, Oklahoma Supreme Court Rules, 12 0.$.2001, Ch. 15, App. 1.

      . See the provisions of OKLA. CONST. Art. 6, § 1(A), which state in pertinent part:
      ''The Executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer, Superintendent of Public Instruction, Commissioner of Labor, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law."

      . The terms of § 74 0.$.2001, § 18b provide in pertinent part:
      ''The duties of the Attorney General as the chief law officer of the state shall be:
      Here deol th ok
      5. To give an opinion in writing upon all questions of law submitted to the Attorney General by the Legislature or either branch thereof, or by any state officer, board, commission or department, provided, that the Attorney General shall not furnish opinions to any but district attorneys, the Legislature or either branch thereof, or any other state official, board, commission or department, and to them only upon matters in which they are officially interested; ..."

      . See the provisions of 74 O.$.2001, § 18, which state:
      ''The Attorney General shall be the chief law officer of the state."

      . Hendrick v. Walters, 1993 OK 162, ¶19, 865 P.2d 1232, 1243. Many public officials are not lawyers. Legal assistance often is needed if the law's functional meaning cannot be ascertained from its text and without its construction by an exercise of professional skills. Id. at n. 51.

      . In Rasure v. Sparks, 1919 OK 231,75 Okla. 181, 183 P. 495, we held that an Attorney General's opinion is binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction. Id. at T7, at 498. That pronouncement governed the effect of opinions of the Attorney General until 1984 when we held in State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763 that no official or agency is bound by the Attorney General's view of a constitutional infirmity ("[The issuance of an opinion [by the Attorney General] finding an act of the legislature unconstitutional is ... an unwarranted encroachment upon the power of the legislature and the unique duty of the courts."). Id. at 112, at 767. The scope of the York exception was clarified in Branch Trucking Co. v. State ex rel. Okla. Tax Comm'n, 1990 OK 41, 801 P.2d 686, in which we stated that York was an exception to the general rule established in Rasure and that the Rasure pronouncement continues to govern where an Attorney General's opinion does not declare a statute unconstitutional. Id. at T 11, at 690.

      . Rasure, supra note 37, at ¶7, at 498; Globe Life and Accident Ins. Co. v. Okla. Tax Comm'n, 1992 OK 65, ¶8, 831 P.2d 649, 650; Branch Trucking, supra note 37, at ¶ 11, at 690.

      . See authorities cited supra note 38.

      . Hendrick, supra note 36, at ¶20, at 1243; Allen v. State ex rel. Bd. of Trustees of the Okla. Uniform Retirement System for Justices and Judges, 1988 OK 99, ¶15, n. 33, 769 P.2d 1302, 1308, n. 33.