author:
BOUDREAU, J.
      OPALA, V.C.J.,

text:
    2004 OK 40
    Deacon COOPER, Plaintiff/Appellant, v. Glynn BOOHER, Warden, John Lilley Correctional Center, Defendant/Appellee.
    No. 98,447.
    Supreme Court of Oklahoma.
    June 1, 2004.

      Deacon Cooper, pro se.
    Richard W. Kirby, General Counsel, and Ronald A. Anderson, Assistant General Counsel, Oklahoma Department of Corrections, Oklahoma City, OK, for Defendant/Ap-pellee.
   BOUDREAU, J.

¶ 1 Deacon Cooper (Inmate), an inmate at John Lilley Correctional Center in Boley, Oklahoma, tested positive for use of marijuana and received administrative discipline. He appealed unsuccessfully to Glynn Booher (Warden) and then to the Director of the Oklahoma Department of Corrections (DOC), arguing that the drug test was administered in a manner not in accordance with DOC policy and not in accordance with the manufacturer’s recommendations. Inmate then filed what has been called in the papers before us a petition for writ of mandamus in district court asking the court to command prison officials to retest him. Warden responded with a motion to dismiss the petition and a motion for sanctions. In a Journal Entry entered October 18, 2002, the district court dismissed Inmate’s petition, granted Warden’s motion for sanctions and imposed sanctions on Inmate in the amount of $103.50, the costs of the action. Inmate appealed.

¶ 2 The Court of Civil Appeals (COCA) affirmed the dismissal of the petition but reversed the sanction order. COCA held as a matter of first impression that a party who wishes to move for sanctions under 57 O.S. 2002 Supp. § 566 (hereinafter, § 566) must comply with the safe harbor provision that is found in 12 O.S.2001 § 2011(C)(1)(a) (hereinafter, § 2011), despite the fact that § 566 does not itself contain any such requirement. COCA reversed the sanction award because Warden had not complied with the safe harbor provision. Warden sought certiorari review of the portion of COCA’s opinion that reversed the sanction order. Inmate did not seek certiorari review of the portion of COCA’s opinion that affirmed the dismissal of the petition.

ISSUE

¶ 3 The first impression issue on cer-tiorari is: In an action commenced by an inmate, must a defendant who wishes to move for sanctions under § 566 comply with the safe harbor provision that is found in § 2011. We answer “no”.

STANDARD OF REVIEW

¶ 4 Because the issue is one of statutory construction, our review is de novo. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1123. In a de novo review we claim plenary, independent and non-deferential authority to examine a trial court’s legal rulings. Manley v. Brown, 1999 OK 79, ¶ 22 n. 30, 989 P.2d 448, 456 n. 30.

ANALYSIS

¶ 5 Fundamental to statutory construction is to ascertain and give effect to legislative intent. City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. We must presume the Legislature expressed its intent in a statute and that the Legislature intended what it expressed. TXO Production Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, 829 P.2d 964, 969. “[W]here a statute’s language is plain and unambiguous, and the meaning clear and unmistakable, no justification exists for the use of interpretative devices to fabricate a different meaning.” Keating v. Edmondson, 2001 OK 110, ¶ 15, 37 P.3d 882, 888.

¶ 6 We first address § 2011. Section 2011 was amended in 1994 to add a special notice provision, commonly referred to as a safe harbor provision, that applies to a party who wishes to file a sanction motion pursuant to § 2011(C)(1)(a). It provides in pertinent part:

C. SANCTIONS .

1. HOW INITIATED.

a. By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection B of this section. It shall be served as provided in Section 2005 of this title, but shall not be filed with or presented to the court unless, within twenty-one (21) days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

¶ 7 Under the plain meaning of the words, prior to filing a sanction motion pursuant to § 2011(C)(1)(a) the movant must serve the motion on the offending party and wait at least twenty-one days. Only if the offending party does not withdraw or appropriately correct the challenged paper, claim, defense, contention, allegation, or denial within twenty-one days after service may the movant file the motion. We have said that the purpose of the sanction provision in § 2011 is to discourage pleadings, motions or other papers that are frivolous or are filed for an improper purpose such as delay. State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 17, 61 P.3d 234, 244.

¶ 8 We now turn to § 566. This statute was last amended effective July 1, 2002. Among other things, the amendment made § 566 applicable to any action (instead of any civil action) filed by any inmate (instead of any inmate in a penal institution appearing pro se) against any person, party or entity (in addition to the state, the Department of Corrections, another state agency, or political subdivision). Section 566, as amended in 2002, provides in pertinent part:

A. Any action initiated against any person, party or entity, the state, the Department of Corrections, another state agency, or political subdivision, or an original action in an appellate court, or an appeal of an action whether or not the plaintiff was represented in the district court, by an inmate may be:
2. Dismissed with prejudice ... on a motion of the defendant, if the court is satisfied that the action is frivolous or malicious.
* * #
C. If the court determines before or at trial that one or more of the causes of action are frivolous or malicious, any one • or more of the following sanctions may be imposed:
* * *
2. Court costs not to exceed Five Hundred Dollars ($500.00) per cause of action;

¶ 9 We see no ambiguity in this language and therefore we must apply the plain meaning of the words. Keating v. Edmondson, supra. Under the plain meaning of the words, § 566 authorizes the court to impose sanctions on an inmate who initiates a frivolous or malicious action; § 566 does not require the defendant to comply with any safe harbor provision like that found in § 2011.

¶ 10 Our conclusion that § 566 does not incorporate the safe harbor provision of § 2011 is reinforced by the fact that the Legislature amended § 566 in 2002. At the time of the 2002 amendment to § 566, the safe harbor provision had already been in effect in § 2011 for eight years. If the Legislature intended to add a safe harbor provision to § 566, it could have used the same language it used in its 1994 amendment to § 2011. See, e.g., Ind. School Dist. #I-20 of Muskogee County v. Oklahoma St. Dept. of Education, 2003 OK 18, ¶ 16, 65 P.3d 612, 619. The intent of the Legislature to keep the two statutes separate is clear. Being fully aware of the burden of frivolous and malicious litigation by inmates, the Legislature chose not to incorporate the safe harbor provision of § 2011 into § 566.

CONCLUSION

¶ 11 We hold that the safe harbor provision that is applicable to sanction motions filed pursuant to 12 O.S.2001 § 2011 does not apply to sanction motions filed pursuant to 57 O.S.2002 Supp. § 566. We vacate the portion of the opinion of the’ Court of Civil Appeals that reversed the trial court’s sanction order and we affirm the trial court’s sanction order. Since no party sought certiorari with respect to any other portion of the opinion of the Court of Civil Appeals, we leave undisturbed the balance of that opinion.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED IN PART; TRIAL COURT JUDGMENT AFFIRMED.

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

OP ALA, V.C.J., dissents and writes separately.

KAUGER, J., concurs in part and dissents in part (joins OP ALA, V.C.J.).

OPALA, V.C.J.,

with whom KAUGER, J., joins, dissenting.

¶ 1 The court vacates today the Court of Civil Appeals’ (COCA) opinion and affirms the trial court’s sanction order, declaring that the safe-harbor clause in the provisions of 12 O.S.2001 § 2011(c)(1)(a) was not intended to be included in the terms of 57 O.S.2002 Supp.

§ 566. Because the court’s pronouncement fails to reach the dispositive issues in this public-law controversy, I dissent and suggest for the court’s consideration my own analysis of the critical issues to be resolved.

¶ 2 In this controversy the court is not only entirely free, but also bears the duty, to make its own formulation of the issues that must be decided. Two issues, both having a constitutional dimension, appear absolutely necessary for today’s pronouncement. One of the two is whether an inconsistent procedural approach for § 2011 and for § 566 offends the state constitution’s prohibition against disuniform procedure; the other is whether singling out prisoners for application of a different process in imposing court sanctions for litigation-related misconduct offends the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Today’s opinion addresses neither of these two questions.

I.

DOES DICHOTOMIZING THE APPLICABLE NORMS OF SANCTIONING PROCEDURE INTO THOSE GENERALLY PRESCRIBED BY § 2011 AND THOSE OF § 566 WHICH APPLIES SOLELY TO PRISONERS OFFEND THE OKLAHOMA CONSTITUTION’S PROHIBITION AGAINST DISUNIFORM COURT PROCEDURE?

¶ 3 The terms of Art. 5, § 46, Okl. Const., command that court procedure be symmetrical and apply across the board. The terms of § 46 mandate in absolute terms statewide procedural uniformity for an entire class of similarly situated persons or things. Its relevant terms expressly prohibit the legislature from regulating court procedure by disuniform rules. Although directed to the legislature, the terms of § 46 are equally binding on the courts. This court’s own jurisprudence, no less than the legislature’s enactments, must faithfully conform to the fundamental law’s prohibition against disuni-form laws on all subjects prohibited in § 46.

II.

DOES SINGLING OUT PRISONERS FOR DIFFERENT PROCEDURAL TREATMENT WHEN THEY ARE PROCEEDED AGAINST FOR IMPOSITION OF COURT SANCTIONS OFFEND THE XIVth AMENDMENT’S EQUAL PROTECTION CLAUSE?

¶ 4 The XIVth Amendment to the Constitution of the United States has been a part of this Nation’s fundamental law since 1868. It has served as a basis for articulated national public policy for all the states. The Supreme Court’s XIVth Amendment jurisprudence constitutes law that is enforceable against all the states.

¶ 5 The terms of the XIVth Amendment guarantee that all similarly situated persons receive the same treatment. Here, the court has failed to inquire into whether, in the context of Oklahoma’s sanctioning process, it may, without offending the Equal Protection Clause, apply to a prisoner procedural norms that are markedly different from those which stand accorded to similarly situated persons at large. A legislative classification which, without any rational basis, sets apart a subclass for different treatment may be offensive to the Equal Protection Clause. If a legislative classification is declared to be im-permissibly narrow, it is subject to judicial condemnation as “underinclusive.”

¶6 In Mehdipour the trial court dismissed a prisoner’s lawsuit for failure to pay a filing fee prescribed by § 566. On at least three prior occasions the prisoner filed lawsuits which were dismissed either as frivolous or for failure to state a claim. On certiorari, this court held that because the provisions of the pertinent legislation did not implicate any fundamental rights and were rationally related to a legitimate state interest in deterring frivolous prisoner lawsuits, the statute imposing court costs did not offend due process. The enactment hence was declared free of constitutional taint under both the Federal and State constitutions. I did not give Meh-dipour my unqualified concurrence. This is so because there the court resolved a federal constitutional issue that was neither tendered for its testing nor was necessary for the decision. Resolving the two fundamental-law questions in this case is critical to deciding the constitutional validity of Oklahoma’s dichotomous regime of procedure for sanctioning the same or like litigation-related abuse or misconduct.

¶ 7 Because the court today neither resolves (1) the impact of the uniformity-of-procedure mandate imposed by § 46, nor (2) deals with a prisoner’s federal constitutional claim to receiving treatment that is not unequal to that accorded persons at large, I recede from its opinion.

HI.

THE DISSENT’S RESPONSE TO THE COURT’S CRITIQUE

¶8 In response to the dissent the court suggests that because in Woodivard the court did not reach the constitutional issue urged upon it, it should not do so here. Woodivard does not raise an impediment to resolving the issues I tender by the dissent. The court has a clear and absolute duty to determine all issues dispositive of a public-law controversy. In Woodward the court follows that very mandate by saying that neither its opinion there nor in Northwest Datsun presents the “public interest and welfare required ... to entertain the equal protection challenge on appeal ... ”, Today’s refusal to resolve what the dissent counsels will give the winner no more than Pyrrhic victory to be followed by utter chaos in the courthouses for the ensuing years of time-consuming litigation.

      . The appellate record is incomplete. It has some attributes of a record on accelerated appeal under Okla. Sup.Ct. R. 1.36, but it lacks Inmate's petition and Warden's motions. Consistent with Rule 1.36, the parties did not file appellate briefs. Because of the sparse record, we glean the factual and procedural history from the district court docket sheet, Petition in Error, Response to Petition in Error and Petition for Writ of Certiorari.

      . Both Section 566 and Section 2011 allow either the court or a party to initiate the sanction process. In this case, Warden initiated the process by filing a motion for sanctions. Accordingly, in this opinion we will discuss these statutes only in the context of party-initiated sanctions, not in the context of court-initiated sanctions.

      . The dissent suggests that this issue cannot be adequately addressed without deciding whether an inconsistent procedural approach for § 2011 and for § 566 offends the state's constitutional prohibition against disuniform procedure and the equal protection clause of the 14th Amendment of the U.S. Constitution. We disagree. In his petition in error, Cooper identified two issues for appeal. He contended (1) that his petition was not frivolous and (2) that there was not enough money in his prison account to pay the sanctions imposed. He raised no constitutional issue in his petition in error. In reversing the sanction award, the Court of Civil Appeal’s opinion held, as a matter of statutory construction, that § 566 is an extension of § 2011, but applicable to a specific category of litigant, an inmate in a penal institution. In its opinion, the intermediate appeals court did not rest its holding on any provision in our state or federal constitutions.
      Ordinarily, where the record clearly shows that the question of the constitutionality of an act was not presented to the trial court, and no reference to the constitutionality of an act appears on the record on appeal, such question will not be considered on appeal by the Supreme Court. Springfield Fire & Marine Ins. Co. v. Biggs, 1956 OK 114, 295 P.2d 790; Garman v. Myers, 1938 OK 406, 80 P.2d 624. Due process claims and public law controversies are sometimes an exception to the requirement that constitutional issues, or any issues for that matter, must be raised in the lower court. However, the fact that a dispute may be characterized as a public law controversy does not compel this Court to identify and decide all conceivable constitutional claims. For instance, we have held that a workers' quest to receive compensation for an on the job injury is a statutory public law proceeding, not a private dispute. Yeatman v. Northern Oklahoma Resource Center, 2004 OK 27, 89 P.3d 1095, (2004). Yet, in Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218, we refused to consider an equal protection challenge (the same challenge the dissent urges we address here) by firefighters attacking the constitutionality of a presumption that they contended placed them in a special class.

      . Section 2011(C)(1)(a) is virtually identical to its federal counterpart, Rule 11 of the Federal Rules of Civil Procedure. Rule 11 was amended to add a safe harbor provision effective December 1, 1993. The corresponding amendment to § 2011 became effective September 1, 1994. 1994 Okla. Sess. Laws ch. 343 § 11.

      . 2002 Okla. Sess. Laws ch. 402 § 8.

      . The pertinent terms of 12 O.S.2001 § 2011(C)(1)(a) are:
      a. By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection B of this section. It shall be served as provided in Section 2005 of this title, but shall not be filed with or presented to the courts unless, within twenty-one (21) days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

      . The pertinent terms of 57 O.S.2002 Supp. § 566 are:
      A. Any action initiated against any person, party or entity, the state, the Department of Corrections, another state agency, or political subdivision, or an original action in appellate court, or an appeal of an action whether or not the plaintiff was represented in the district court, by an inmate may be:
      2. Dismissed with prejudice ... on a motion of the defendant, if the court is satisfied that the action is frivolous or malicious.
      * ⅜ ⅜
      C. If the court determines before or at trial that one or more of the causes of action are frivolous or malicious, any one or more of the following sanctions may be imposed:
      * * ⅜
      2. Court costs not to exceed Five Hundred Dollars ($500.00) per cause of action;

      . The distinction between public and private law is well recognized in the Anglo-American legal system. Blackstone acknowledged the distinctness of these two bodies of law. Blackstone’s Commentaries of The Laws of England, Vol. III, p. 1 [private wrongs], Vol. IV, p. 1 [public wrongs] (Wendell's ed. 1859). He defined a. private wrong as an infringement or privation of the private or civil rights belonging to individuals, considered merely as individuals, and therefore termed civil injuries, while public wrongs were described as a breach and violation of public rights and duties affecting the entire community, considered as a community. Notwithstanding Blackstone’s late eighteenth-centuiy teachings, the term "public law" is not commonly used in the United States. Cappalli, The American Common Law Method (1997), pg. 177.

      . The pertinent terms of Art. 5, § 46, Okl. Const., are:
      The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: * ’! *

        Regulating the practice or jurisdiction of ... in judicial proceedings or inquiry before the courts ... or other tribunals ...
      (emphasis supplied).

      . Brown v. Ford, 1995 OK 101, ¶ 7, 905 P.2d 223, 228; Simpson v. Dixon, 1993 OK 71, ¶ 15, 853 P.2d 176, 183; Tate v. Browning-Ferris, Inc., 192 OK 72, V 18, 833 P.2d 1218, 1229; Reynolds v. Porter, 1988 OK 88, ¶ ¶ 13-19, 760 P.2d 816, 822; Johnson v. District Court of Oklahoma County,
        1987 OK 47, 112, 738 P.2d 151, 154 (Opala, J., concurring). Special laws are those which single out less than an entire class of similarly affected persons or things for different treatment. If a rule of law is special, § 46 absolutely and unequivocally prohibits its passage as law. Reynolds at V1J 13-21, 821-824.

      . See Johnson v. Tony’s Town Mister Quik, 1996 OK 138, ¶ 5, 915 P.2d 355, 355, 357-358; Reynolds, supra note 5 at 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, 1112, 714 P.2d 198, 203-204.

      . Maule, supra note 6 at 203-204; Reynolds, supra note 5 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 12, 846 P.2d 1088, 1095-1096 (Opala, J., concurring). "Fundamental fairness cannot be afforded except within a framework of orderly procedure.” Joiner v. Brown, 1996 OK 112, ¶ 6, 925 P.2d 888, 890, citing Piyse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 438. "... It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to the strict procedural safeguards is our main assurance that there will be equal justice under law.” Joiner, supra note 7 at 890, quoting from Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951) (Douglas, J., concurring).

      . Reynolds, supra note 5 at 822.

      . The pertinent terms of § 1 of the XIVth Amendment to the United States Constitution are:
      "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
      (emphasis supplied).

      . Clinton v. State ex rel. Logan County Election Bd., 2001 OK 52, ¶ 6, 29 P.3d 543, 548 (Opala, J. concurring).

      . Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).

      . Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Williams v. Illinois, 399 U.S. 235, 240, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). These cases identify Equal Protection jurisprudence that does not allow placing prisoners and persons at large into two separate classes.

      . Orr v. Orr, 440 U.S. 268, 272, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979); Stanton v. Stanton, 421 U.S. 7, 13-14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975); see also Wilson v. Foster, 1979 OK 45, 595 P.2d 1329, 1332.

      . Mehdipour v. State ex rel. Department of Corrections, 2004 OK 19, ¶ 22, 90 P.3d 546.

      . Johnson v. City of Woodward, 2001 OK 85, ¶ 21, 38 P.3d 218, 226-227.

      . Northwest Datsun v. Oklahoma Motor Vehicle Com’n, 1987 OK 31, ¶ 16, 736 P.2d 516, 520.


source: Caselaw Access Project

author: WINCHESTER, J.

license: Public Domain

text:
    2004 OK 41
    STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Cherie Michelle CHAPPELL, Respondent.
    SCBD No. 4825.
    Supreme Court of Oklahoma.
    June 8, 2004.

      Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, attorney for complainant State of Oklahoma ex rel. Oklahoma Bar Association.
    Cherie M. Chappell, Chappell Law Firm, PLLC, Edmond, OK, pro se respondent.

      . Identified herein are only those counsel for the parties whose names appear on the briefs.

   WINCHESTER, J.

¶ 1 The OBA filed a complaint against respondent, a licensed attorney in Oklahoma, pursuant to Rule 6, RGDP, 5 O.S.2001, Ch. 1, App. 1-A. The complaint states one count, that represents a grievance filed by a federal judge in Kansas, before whom respondent appeared. In its Trial Panel Report, the Trial Panel of the Professional Responsibility Tribunal (the PRT) made Findings of Fact and Conclusions of Law. The PRT found that respondent’s conduct warranted enhancement of punishment, and unanimously recommended a one-year suspension of respondent’s license and that she be responsible for costs of the proceedings.

¶2 The record contains no evidence that respondent suffered from clinical depression or other mental condition that might be considered for purposes of mitigation, or from any physical disability that might have caused or precipitated her harmful conduct. The record also is devoid of any evidence respondent expressed remorse for her actions and for the difficulties her client endured because of her conduct.

COUNT I

¶3 Prior to passing the Oklahoma Bar Exam, respondent began work for an attorney named W. Dan Nelson, on several cases, including a case involving a car accident in Peabody, Kansas. The potential plaintiff in this case was Carole Ellen Teaford. Nelson had entered into a contingency fee contract with Teaford in September, 1999, to pursue a claim for her injuries arising out of the rollover accident. He previously represented Teaford in a criminal matter. Respondent was not a party to this contingency fee contract with Teaford, nor was she named in said contract.

¶ 4 Respondent passed the bar exam and was admitted to the OBA. She continued to assist Nelson on Teaford’s case, ultimately filing an action on her behalf, along with Nelson, on January 10, 2001. The case was filed in the United States District Court for the District of Kansas. Subsequently, it was transferred to the U.S. District Court for the Southern District of Indiana, where it became a part of the Bridgestone/Firestone Multi-District Litigation, Master File No. IP-00-9373-C-B/S, MDL No. 1373.

¶ 5 Respondent helped in drafting the petition, and signed it. Other names appearing on the petition were: Rex A. Sharp, Gunder-son, Sharp, Trout & Rhein, P.C., Prairie Village, Kansas, and Of Counsel: W. Dan Nelson, Edmond, Oklahoma. These two names, along with respondent’s, appeared immediately above the words: ATTORNEYS FOR PLAINTIFF. At the bottom of the page appear the words: ATTORNEY’S LIEN CLAIMED and JURY TRIAL DEMANDED. At the time she signed this petition, respondent possessed a temporary license in Kansas.

¶ 6 The evidence before us shows that subsequently, respondent began to draft proposed answers to the defendants’, interrogatories and requests for production. These answers never were filed or provided to the defendants, because the case settled before completion of discovery. At this time, respondent also represented the plaintiff of the rollover case, Teaford, in a social security disability claim. Three months after the rollover case was filed, respondent received notice she failed the Kansas Bar Exam. As a result, she no longer could practice law in Kansas and was forced to withdraw from the rollover case. The court granted her motion to withdraw on April 30, 2001. Respondent continued to represent Teaford on the social security disability claim.

¶ 7 With respondent’s permission, the evidence shows that Nelson retained two Oklahoma attorneys to assist him in the rollover case. These lawyers, Richard Denney and Lydia Barrett, had settled several such eases on behalf of other clients. On January 6, 2002, Teaford settled with Ford/TRW and on January 18, 2002, she settled with Bridge-stone/Firestone. Following settlement, a fee dispute arose between Nelson and respondent. On January 17, 2002, respondent sent a written request of 10% of the attorney fees, and on January 21, 2002, she sent another written request, this time, of 12.5% of the attorney fees, although respondent had no written fee agreement with Teaford or with Nelson, regarding the rollover action. The record reveals that Nelson offered respondent $7500.00 in attorney’s fees, and later offered respondent $10,000.00 in attorney’s fees, for her work on the rollover ease.

¶ 8 To resolve the attorney fee dispute, Nelson filed a motion in the federal court in Indiana where the multi-district litigation was pending, February 5, 2002. In her response thereto, filed February 12, 2002, respondent contended that Nelson had “misled the Court by failing to disclose important relevant facts, by misstating actual facts, and by failing to state the law and applicable Rules of Professional Conduct in their entirety.” Respondent also stated therein that Nelson “flatly lies to the court” and requested 25% of the attorney fees in the rollover case. Respondent filed a “Motion to Enforce Attorney Lien and Brief in Support” the same day, wherein she requested attorney fees.

¶ 9 On the same day, February 12, 2002, respondent mailed letters to Nelson and the other attorneys involved in the rollover action, attaching thereto a motion for Rule 11 sanctions against Nelson; an application for emergency relief and a motion to set aside judgment for fraud. She filed the latter motion to set aside, on February 19, 2002, alleging therein that Nelson “intentionally, fraudulently, and deliberately withheld and denied relevant information” from her regarding settlement agreements, and that Nelson had attempted to hide the very fact a settlement had been achieved. The Rule 11 motion contained language referring to Nelson’s conduct as “egregious, unlawful, immoral, and unethical.”

¶ 10 Respondent’s father, Kenneth R. Poland, an attorney licensed in Texas, then wrote a series of letters to all parties involved, the first of which was dated February 13, 2002, and advising that he intended to enter the case as respondent’s attorney, to collect attorney fees to which she was entitled. However, respondent filed an application to proceed pro se on February 13, 2002. In the midst of this strife, Teaford requested by letter that respondent withdraw from the social security disability case, on February 15, 2002. Respondent complied.

¶ 11 Poland’s second letter was dated February 18, 2002 and entitled: “Re: Pit Fighting 101-Do Your Homework! Did Anyone Check Out the Criminal Records of Plaintiff Carole Ellen (Long) Teaford?” This letter refers to a felony criminal indictment for several counts of child molestation and suggests that Nelson succeeded in getting the charges dismissed because of Teaford’s “injuries” in the rollover case. The letter implies that Teaford staged the accident and her injuries, to avoid criminal charges.

¶ 12 Poland’s third letter, February 19, 2002, stated he had contacted the relevant District Attorney’s Office about the Teaford rollover accident and monetary settlement, and that the D.A. would notify the alleged molestation victim. The letter also stated, “Newspapers have been notified so they can do follow ups if they desire.” During a hearing before the federal judge in Kansas, (Judge Monti L. Belot, who filed the grievance against respondent with the OBA,) on November 4, 2002, respondent testified that she had given her permission to Poland, her father, to send these three letters.

¶ 13 Also on February 19, 2002, respondent signed on her own behalf, and then filed with the court, a “Motion to Make the Court Aware of Possible Fraud Upon the Court and Defendants in this Case Perpetrated by Plaintiffs and W. Dan Nelson.” Therein, respondent references the criminal case against Teaford, her former client, alleging felony counts of child molestation and abuse, and further references the possibility of “an intentional incident” and contends that “As a result of the auto accident, Plaintiff [Teaford] was able to avoid a jury trial and the criminal felony charges were later dismissed because of her alleged injuries.” The record reveals that respondent learned of the criminal charges previously, through Teaford herself. Respondent’s reference to the charges in correspondence and motions constitutes a violation of Rule 1.6, ORPR, eodi-fled at 5 O.S.2001, Ch. 1, App. 3-A.

¶ 14 On the same day, respondent filed a “Motion to Strike Nelson’s Motion for Hearing on Attorney Fee Conflict and Nelson’s Application and Supplemental Motion,” stating therein “That the two affidavits presented by W. Dan Nelson are evidence of Mr. Nelson’s incompetence and the negligent work done by Mr. Nelson’s Office” and that the “two attempts at Affidavits are misleading and are misrepresenting facts to the Court and are controverted by Movant’s attached controverting Affidavit.”

¶ 15 Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana, remanded the entire matter to the Kansas U.S. District Court Judge, Monti L. Belot, on March 4, 2002. On March 22, 2002, Nelson informed respondent by letter that her “Motion to Make the Court Aware of Possible Fraud Upon the Court” was frivolous. Attached thereto was a letter from the District Attorney involved in the criminal matter against Teaford, stating the reasons why he had dismissed the ease against her. These reasons were independent of the rollover accident, and independent of Teaford’s injuries from the accident. Nelson requested that respondent withdraw her motion, based upon this evidence. She failed to do so.

In fact, that same day, March 22, 2002, respondent filed a “Response to Court’s Suggestion for Remand and Defendant’s Response Thereto” wherein she reiterated her belief a fraud had occurred and that the accident was staged. She even asserted therein that her father “has recently found documents in the public record that show Mrs. (Long) Teaford’s criminal charges were dismissed because of her injuries in the August 19,1999 crash, which is presently before this Court.... Dan Nelson apparently has a history of engaging in deception and artifice.” Respondent attached the Affidavit of Probable Cause and the Amended Information from the criminal case against Teaford.

¶ 16 Three days later, respondent filed yet another motion for sanctions against Nelson, alleging he unlawfully^ had withheld attorney fees. She then filed a reply to Nelson’s responses on April 13, 2002, still referencing the criminal matter against Teaford, in spite of the evidence provided to her from the District Attorney that the charges had been dropped, for reasons independent of the rollover accident. Therein, she contended that Nelson “offers no competent evidence to support his ‘factual background’ about the criminal case against Mrs. Teaford,” and that the D.A.’s letter “does not support Nelson’s claims.” Indeed, the claims that the D.A.’s letter and Nelson’s other exhibits “amount to nothing more that [sic] self-serving hearsay and should therefore be disregarded.” Respondent’s numerous filings that allege fraud upon the court constitute violations of Rule 3.1, ORPR. Indeed, virtually every filing and each piece of correspondence sent by respondent or Poland, her father and attorney, were contrived to embarrass, delay or burden a third person, and were crafted for the sole purpose of obtaining an attorney’s fee, in violation of Rule 4.4, ORPR, codified at 5 O.S.2001, Ch. 1, App. 3-A.

¶ 17 Judge Belot held a hearing on November 4, 2002, regarding respondent’s contentions of “possible fraud” during which respondent, Nelson, Barrett and Poland testified. Respondent was represented by Geoffrey Jennings. Judge Belot stated on the record that there was:

“absolutely no evidence even introduced to suggest either that there has been a fraud on the Court or there was any fraud in connection with the underlying case, the Teaford against Bridgestone and others. Specifically, there’s absolutely no evidence or even any inference or suggestion of any evidence that the accident in that ease was either staged or had anything whatsoever to do with this criminal case.”

Judge Belot also stated the following, on the record:

“If there was ever a ease where excessive costs have been incurred because of irresponsible conduct by lawyers, this is it ... This is a truly disgusting matter ... There are some other things that I could say to you, Ms. Chappell, and you Mr. Poland, but its late and I might regret later what I have to say; but don’t either of you ever show up in my court again. Don’t ever ask to be admitted here pro hac vice.”

Respondent’s filings in this regard violated Rule 3.1, ORPR, codified at 5 O.S.2001, Ch. 1, App. 3-A.

¶ 18 Judge Belot’s November 13, 2002, “Order Denying Post-Settlement Motions” contains equally strong language. Two days later, Judge Belot filed a grievance with the OB A and provided a copy of the November 4, 2002, hearing transcript. Respondent continued her paper trail, filing a “Motion to Reconsider Court’s Imposition of Sua Sponte Rule 11 Sanctions Against Cherie M. Chap-pell.”

¶ 19 On December 4, 2002, respondent filed a response with the OBA to the grievance. Therein, she stated:

“I am terribly sorry that this matter came to your attention before I was afforded due process and an opportunity to present evidence as to why the matter should not be forwarded to your office. I hope to be able to resolve the matter with Judge Belot. I still do not know what I have done that has offended him. I will keep you informed.”

¶20 Judge Belot denied the motion to reconsider Rule 11 sanctions on January 16, 2003. On February 18, 2003, respondent appealed to the U.S. Court of Appeals for the Tenth Circuit, stating in the Notice of Appeal:

“Cherie M. Chappell, former attorney for Plaintiff and lien claimant against Plaintiffs’ attorney W. Dan Nelson, appeals to the United States District Court of Appeals for the Tenth Circuit from the Order of the District Court for the District of Kansas, entered in this case on January 16, 2003, denying Cherie Chappell’s pro se Motion to the Court’s referral of Chap-pell’s conduct to the Oklahoma Bar Association without notice, or a show cause hearing,. ...”

The record reveals that a ruling on this matter apparently is pending before the Tenth Circuit. Respondent filed her Brief in Chief with the Tenth Circuit on May 15, 2003.

¶21 Nelson filed a motion for sanctions against respondent and a hearing was held thereon, March 14, 2003. The record reveals that a ruling thereon apparently is pending.

¶ 22 Count I contains allegations that respondent’s conduct violated Rules 1.6, 3.1, 4.4, 8.4(a), 8.4(d), of the Oklahoma Rules of Professional Responsibility, and Rule 1.3, Rules Governing Disciplinary Procedure, and thereby constitutes grounds for professional discipline.

STANDARD OP REVIEW

¶ 23 Our review of the evidence is de novo, in determining if the OBA proved its allegations of misconduct by clear and convincing evidence. RGDP Rule 6.12(c); State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, 23 P.3d 268. Findings of Fact and conclusions of law of the PRT are advisory and neither binding nor persuasive. Bolusky, 2001 OK 26, ¶ 7, 23 P.3d at 272. We review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Association v. Thomas, 1995 OK 145, ¶ 2, 911 P.2d 907, 909. The primary purpose of disciplinary proceedings is not punishment but purification of the Bar. State ex rel. Oklahoma Bar Ass’n. v. Samara, 1984 OK 32, ¶ 11, 683 P.2d 979, 983. We have reviewed the evidence and find that the PRT’s findings of fact and conclusions of law are supported by the record and that the allegations of misconduct are established by clear and convincing evidence.

ENHANCEMENT

¶ 24 We find that the enhancement considerations set forth by the PRT in its report have merit. The record is devoid of any evidence respondent expressed remorse for her conduct that harmed a former client. Indeed, the record contains evidence from which we conclude that respondent expressed no concern that her conduct was detrimental to the case in which she previously had represented the client. The record also is devoid of any evidence that respondent suffers from depression or any other mental or physical disability that would have precipitated, caused or mitigated, her harmful conduct with respect to the matters that are the subject of the instant Rule 6 Bar Disciplinary Proceeding.

DISCIPLINE

¶25 Upon a review of the record before us, including the September 18, 2003, transcript of the hearing before the PRT, the Report of the Trial Panel and the exhibits contained in the record, we find that respondent engaged in conduct that violates Rules 1.6, 3.1, 4.4, 8.4(a), 8.4(d), ORCP and Rule 1.3, RGDP. We accept the PRT’s unanimous recommendation that respondent’s license to practice law be suspended for one year. A one-year suspension was imposed in State ex rel. Oklahoma Bar Association v. Rennie, 1997 OK 108, 945 P.2d 494, wherein Rennie filed a false response to the bar complaint, misrepresented facts to a client about a summary judgment and told the client opposing counsel had “bought off’ the judge. Rennie showed remorse and took action to ensure he would not make the same mistakes again. In the matter before us, respondent has shown no remorse, and has taken no action to ensure she will not make the same mistakes again. Indeed, she has filed an appeal with the Tenth Circuit, thereby perpetuating her previous errors.

¶ 26 Previously, we held an Oklahoma attorney accountable for the actions of that attorney’s secretary in revealing a client’s criminal charge to the client’s mother. See, State ex rel. Oklahoma Bar Ass’n. v. McGee, 2002 OK 32, 48 P.3d 787. In finding that the attorney violated Rule 1.6, ORPC, we reiterated the fundamental principle that a lawyer maintain confidentiality of information relating to representation of a client. This not only includes matters communicated in confidence by the client, but also applies to all information that relates to the represéntation, whatever its source may be. “A lawyer may not disclose such information unless the client consents after consultation.” McGee, 2002 OK 32 ¶ 16, 48 P.3d 787, 790-791.

¶ 27 We hold that the PRT’s recommendation of a one-year suspension and assessment of costs is reasonable and appropriate under the facts herein. We hold that the OBA has proven the allegations in its complaint against respondent by clear and convincing evidence.

CONCLUSION

¶ 28 Respondent’s license to practice law is suspended for one year from the date this opinion becomes final. The OBA filed an application to assess the costs of this proceeding in the amount of $ 2,303.26 against respondent. The application is granted, and respondent is ordered to pay this amount within sixty days of the date this opinion becomes final.

CONCUR: WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, KAUGER, BOUDREAU, EDMONDSON, JJ.

NOT PARTICIPATING: HODGES, J.

      . Rule 6, Formal Proceedings Before Supreme Court and Professional Responsibility Tribunal, sets forth the procedures applicable to such proceedings.

      . Rule 1.6, entitled Confidentiality of Information, provides:
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
      (b) A lawyer may reveal, to the extent the lawyer reasonably believes necessary, information relating to representation of a client:
      (1) to disclose the intention of the client to commit a crime and the information necessary to prevent the crime;
      (2) to rectify the consequences of what the lawyer knows to be a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used, provided that the lawyer has first made reasonable efforts to contact the client but has been unable to do so, or that the lawyer has contacted and called upon the client to rectify such criminal or fraudulent act but the client has refused or is unable to do so;
      (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
      (4) or as otherwise permitted under these Rules.
      (c)A lawyer shall reveal such information when required by law or court order.

      . Rule 4.4 Respect for Rights of Third Person
      In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

      . Rule 3.1 Meritorious Claims and Contentions
      A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

      . Rule 8.4 Misconduct, states in pertinent part:
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

      le!) engage in conduct that is prejudicial to the administration of justice;

      . In some cases, discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and in conduct prejudicial to the administration of justice, has resulted in disbarment. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Hensley, 1983 OK 32, 661 P.2d 527; State ex rel. Oklahoma Bar Ass'n. v. Ablah, 1959 OK 267, 348 P.2d 172.


author: OPALA, V.C.J.

text:
    2004 OK 43
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent.
    SCBD No. 4796.
    Supreme Court of Oklahoma.
    June 8, 2004.

      Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Cordes Martin Giger, Respondent, Norman, OK, pro se.
   OPALA, V.C.J.

¶ 1 In this disciplinary proceeding 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 complaint and of its disposition? (2) Is a public censure an appropriate disciplinary sanction for the breach of professional ethics set forth in count one of the complaint? and (3) Is dismissal without prejudice an appropriate disposition of count two of the complaint? We answer all three questions in the affirmative.

I

INTRODUCTION TO THE RECORD

¶ 2 The Oklahoma Bar Association (the “Bar”) commenced this disciplinary proceeding on 21 March 2003 against Cordes Martin Giger (respondent or Giger), a lawyer whose license to practice law is currently suspended, by filing a formal complaint in accordance with the provisions of Rule 6.1 of the Rules Governing Disciplinary Proceedings (“RGDP”). The complaint alleges in two counts violations of the RGDP and of the Oklahoma Rules of Professional Conduct (“ORPC”). A trial panel of the Professional Responsibility Tribunal (the “trial panel”) conducted a hearing (the “PRT hearing”) on 12 November 2003 to consider the charges. The parties submitted no stipulations.

¶ 3 Upon completion of the hearing and after consideration of the testimony and exhibits on file, two members of the trial panel issued a report finding that respondent engaged in the misconduct alleged in count one of the complaint, but recommended that no additional disciplinary sanction be imposed upon respondent beyond the two-year-and-one-day suspension he is already serving under this court’s order of 10 June 2003 in State ex rel. Oklahoma Bar Association v. Giger (“Giger 7/”). The trial panel majority found insufficient evidence to sustain count two of the complaint and recommended that it be “dismissed.” The third member of the trial panel agreed with the majority’s fact findings and with its recommendation as to discipline for respondent’s misconduct in count one of the complaint, but would have continued the hearing on count two until such time as the Bar is prepared to introduce evidence.

II

THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 4 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance. Its jurisdiction rests on the court’s constitutionally vested, nondelegable power to regulate the practice of law, including the licensure, ethics, and discipline of this state’s legal practitioners. In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, non-deferential, de novo examination of all relevant facts, in which the conclusions and recommendations of the trial panel are neither binding nor persuasive. In this undertaking we are not restricted by the scope-of-review rules that govern corrective relief on appeal or certiorari, proceedings in which another tribunal’s findings of fact may have to be left undisturbed by adherence to law-imposed standards of deference.

¶ 5 The court’s duty can be discharged only if the trial panel submits a complete record of the proceedings. Our initial task is to ascertain whether the tendered record is sufficient to permit (a) this court’s independent determination of the facts and (b) its crafting of an appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the offending lawyer.

¶ 6 Having carefully scrutinized the record submitted to us in this proceeding, we conclude that it is adequate for de novo consideration of respondent’s alleged professional misconduct.

Ill

RESPONDENT’S MISCONDUCT ALLEGED IN COUNT ONE OF THE COMPLAINT CALLS FOR DISCIPLINE BY PUBLIC CENSURE

¶7 The Bar alleges in count one of the complaint that respondent violated the provisions of ORPC Rule 8.4(b), ORPC Rule 8.4(c), and RGDP Rule 1.3 by committing a criminal act. The Bar alleges that respondent entered a Norman Wal Mart on 15 September 2001, took a package of batteries from the shelf, opened the package, placed the batteries in his pocket, discarded the packaging, and proceeded to leave the store without paying for the batteries. The Bar alleges that respondent was apprehended by store security in the parking lot and charged with petty larceny in Norman Municipal Court where, on 8 November 2001, he pled nolo contendere to the charge.

¶ 8 In answer to the complaint, respondent admits only that he entered the store and put the batteries in his pocket. His answer does not specifically deny the Bar’s remaining allegations, but he testified at the PRT hearing that whatever he did, he did inadvertently and without the intent to steal the batteries from the store. Rather than contest the facts, respondent’s answer asserts as a defense that the petty larceny incident cannot serve as the basis for discipline in this proceeding because the court has already dealt with the incident in Giger II and disposed of it.

¶ 9 In Giger II, the Bar sought to impose additional discipline on respondent for violating the terms of an earlier disciplinary suspension imposed on respondent in State ex rel. Oklahoma Bar Association v. Giger (“Giger I ”). Among the acts of misconduct alleged in Giger II as grounds for imposing additional discipline was the same petty larceny episode we are considering today. The Bar presented evidence in Giger II that respondent committed the crime and that he pled nolo contendere to it, but because both the crime and the plea took place prior to the effective date of the order in Giger I, we determined that the incident could not serve as a basis for imposing additional discipline for violating the terms of the earlier order. In a footnote, we suggested that the petty larceny charge might be grounds for independent disciplinary sanctions. The Bar now asks us to impose such sanctions.

¶ 10 Respondent does not identify the legal principle upon which he rests his contention that the court cannot again consider the petty larceny matter, but we surmise that he is referring to either double jeopardy or one of the preclusion doctrines. In either case, we disagree that the petty larceny incident is now beyond the court’s constitutionally vested authority to discipline wayward practitioners.

¶ 11 Oklahoma’s prohibition against double jeopardy provides that having been acquitted by a jury, no person shall again be “put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” Its federal counterpart provides in pertinent part that “no person shall be ... subject for the same offense to be twice put in jeopardy of life or limb....” The federal guarantee is applicable to the states through the Fourteenth Amendment. The double jeopardy protections do not prohibit the imposition of all additional sanctions that may “in common parlance” be described as punishment. They protect only against the imposition of multiple criminal punishments for the same offense. Although to the suspended or disbarred lawyer, a disciplinary sanction may feel like punishment, it is not in law. Bar discipline is one of three distinct remedial tracts to enforce a lawyer’s accountability for practice-related misdeeds. Because professional disciplinary proceedings are remedial, not punitive, they are not subject to double jeopardy strictures.

¶ 12 The doctrine of claim preclusion, formerly known at common law as res judicata, teaches that a final judgment on the merits of an action precludes the parties from re-litigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action. When claim preclusion is asserted, the court must analyze the claim dealt with in the prior action to ascertain whether it is in fact the same as that asserted in the subsequent action. In Retherford v. Halliburton Company, we defined claim as:

“a legal concept which has no separate existence in the natural order of things. It is what the makers of legal policy, the Legislature and the courts, say it is. It exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice.”

The claim in Giger II was that respondent’s petty larceny at the Norman Wal Mart violated the terms of the conditioned probation imposed on respondent in Giger I. That was the only claim decided on the merits in Giger II. The Bar cannot re-litigate that claim, but it is not barred by the doctrine of claim preclusion from bringing a separate disciplinary proceeding in which we are asked to determine whether the petty larceny incident warrants independent disciplinary sanctions.

¶ 13 The other preclusion doctrine, formerly known at common law as collateral estoppel, is issue preclusion. Under this doctrine, once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim. Issue preclusion prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies. An issue is actually litigated and necessarily determined if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. There need not be a judgment on the merits, but only a final determination of a material issue common to both cases. In Giger II, the court did not make any finding of fact regarding respondent’s actions at the Norman Wal Mart. The Bar is hence not precluded from raising the matter in this proceeding.

¶ 14 We find the evidence presented in this proceeding clear and convincing that respondent committed the offense of petty larceny at the Norman Wal Mart as alleged in count one of the complaint. In State ex rel. Oklahoma Bar Association v. Bradley, the court held that a plea of nolo contendere is admissible as evidence of a violation of the rules of professional conduct in a proceeding against a member of the Bar. Giger filed a response to the Bar’s complaint as required by RGDP Rule 6.4, but he neither admitted nor denied that he pled nolo contendere to the petty larceny charge. RGDP Rule 6.4 provides that failure to answer a complaint constitutes an admission of the charges, but it is not clear from the language of the rule whether the failure to deny a specific allegation, as distinct from a complete failure to respond, constitutes under the rule an admission of the uncontroverted allegation. Yet, it is unnecessary for us to determine whether Rule 6.4 reaches a respondent’s failure to deny a specific allegation in a bar complaint. This is so because the rules of civil procedure, which apply to bar disciplinary proceedings, clearly extend to that eventuality. The provisions of 12 O.S.2001 § 2008(D) state that failure to deny an averment in a pleading to which a responsive pleading is required, other than those as to the amount of damages, results in the admission of the uncontroyerted averment. Respondent’s admission by omission to deny provides the necessary proof that respondent pled nolo contendere to the petty larceny charge. Under the Bradley rule, the plea constitutes clear and convincing evidence that respondent violated the rules of professional conduct.

¶ 15 Even if the nolo contendere plea were not admissible or not sufficient in and of itself to prove the Bar’s allegations, we would nevertheless find from this record sufficient evidence that respondent committed the alleged petty larceny. Respondent does not deny that he took the batteries off the shelf, put them in his pocket, and left the store without paying for them. His defense is that he did so inadvertently. We are not persuaded. One does not enter a store, remove a product from its packaging, discard the packaging, and place the item in one’s clothing in the absence of an intent to abscond with the merchandise.

¶ 16 We find that respondent’s conduct violated the provisions of ORPC Rule 8.4(b), ORPC Rule 8.4(c), and RGDP Rule 1.3. The trial panel recommended that we impose no discipline for this infraction given that respondent is already serving a two-year-and-one-day suspension. We cannot accede to this recommendation without having it appear that we view shoplifting to be of little consequence. We do not. Shoplifting, even when the items stolen are of little value, is harmful to society. When one engages in such misconduct, it indicates psychological or emotional problems or a lack of respect for the law, or both. For a lawyer, neither mental state is acceptable. In light of respondent’s current suspended status, we believe a public censure suffices to vindicate the interests we are sworn to protect. Because he has already been suspended for two years and one day in Giger II, respondent must apply for reinstatement if he is to practice law again. At that time he will have to persuade us that he possesses the good moral character that would entitle him to reinstatement as a member of the Bar, that he is free of the impairments indicated by the commission of this petty crime, and that he is again fit to practice law.

IV

COUNT TWO OF THE COMPLAINT IS DISMISSED WITHOUT PREJUDICE

¶ 17 The Bar alleges in count two of the complaint that respondent engaged in some very serious acts of misconduct which, if true, constitute both criminal offenses as well as ethical breaches. The Bar was not prepared to offer evidence at the PRT hearing substantiating the allegations and indicated that it would dismiss the count were that course of action open to it. Two members of the trial panel recommended that the count be dismissed, while the remaining trial panel member recommended that the hearing on count two be continued until such time as the Bar is prepared to present its case.

¶ 18 The provisions of RGDP Rule 6.15 govern the court’s options in disposing of a disciplinary proceeding. They permit the court to “impose discipline, dismiss the proceedings or take such other action as it deems appropriate.” We decline to order the hearing on count two continued in the absence of a properly formulated request by the Bar to do so. Because of the gravity of the allegations made against respondent in this count, we dismiss it without prejudice to its refiling should proof that he engaged in the alleged misconduct become available.

V

SUMMARY

¶ 19 The Bar has charged respondent with two counts of professional misconduct. We find clear and convincing evidence that respondent committed the offense of petty larceny from a Norman Wal Mart in violation of ORPC Rule 8.4(b), ORPC Rule 8.4(c), and RGDP Rule 1.3. In the circumstances of this case the appropriate disciplinary sanction for respondent’s misconduct is a public censure. We determine that the Bar failed to prove the allegations in count two of the complaint and order that count dismissed without prejudice to its refiling should proof of the alleged misconduct become available.

¶ 20 RESPONDENT IS ORDERED DISCIPLINED BY A PUBLIC CENSURE FOR THE MISCONDUCT ALLEGED IN COUNT ONE OF THE COMPLAINT; COUNT TWO OF THE COMPLAINT IS DISMISSED WITHOUT PREJUDICE.

¶ 21 ALL JUSTICES CONCUR.

      . The record consists of the transcript of the hearing held before a trial panel of the Professional Responsibility Tribunal, exhibits offered by the complainant which were admitted into evidence at the hearing, and the trial panel's majority and minority reports.

      . The Rules Governing Disciplinary Proceedings are codified al 5 O.S.2001, Ch.l, App. 1-A. The provisions of RGDP Rule 6.1 state:
      "The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court.”

      . The Oklahoma Rules of Professional Conduct are codified at 5 O.S.2001, Ch. 1, App. 3-A.

      . 2003 OK 61, 72 P.3d 27.

      . State ex rel. Okla. Bar Ass'n v. Leigh, 1996 OK 37, ¶ 11, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass’n v. Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 647; State ex rel. Okla. Bar Ass’n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass’n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass’n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 115.

      . Eakin, supra note 5 at ¶ 8, at 648; State ex rel. Okla. Bar Ass’n v. Downing, 1990 OK 102, ¶ 12, 804 P.2d 1120, 1122-1123; Raskin, supra note 5 at 5111, at 265-266.

      . Leigh, supra note 5; Eakin, supra note 5 at ¶ 8, at 647-648; State ex rel. Okla. Bar Ass’n v. Lloyd, 1990 OK 14, ¶ 8, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass’n v. Stubblefield, 1988 OK 141, V 7, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass’n v. Cantrell, 1987 OK 17, ¶ 1, 734 P.2d 1292, 1293; State ex rel. Okla. Bar Ass’n v. Brandon, 1969 OK 28, ¶ 5, 450 P.2d 824, 827. Because this court’s cognizance of disciplinary proceedings cannot be shared with any other institution, every aspect of the Bar’s adjudicative process must be revisited by our de novo consideration. The attribute of nondelegable jurisdiction serves to distinguish the conduct of bar disciplinary functions from trial de novo — a retrial in a different court — or even from de novo appellate review on the record, which stands for an independent, non-deferential examination of another tribunal’s record.

      . Eakin, supra note 5 at ¶ 8, at 648; Raskin, supra note 5 at ¶ 11, at 265. The court’s range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a), 5 O.S.2001, Ch.l, App. 1-A, which states in pertinent part:
      "The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate.”

      . Bolton, supra note 5 at ¶ 15, at 344; Eakin, supra note 5 at ¶ 8, at 648; State ex rel. Okla. Bar Ass’n v. Farrant, 1994 OK 13, ¶ 7, 867 P.2d 1279, 1284. Accord, Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983).

      . The provisions of RGDP Rule 6.13, 5 O.S. 2001, Ch. 1, App.1-A, state in pertinent part:
      "Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel’s findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat. ...”

      . Eakin, supra note 5 at ¶ 9, at 648; Bolton, supra note 5 at ¶ 16, at 345; State ex rel. Okla. Bar Ass’n v. Perceful, 1990 OK 72, ¶5, 796 P.2d 627, 630.

      . The provisions of ORPC Rule 8.4(b), 5 O.S. 2001 Ch. 1, App. 3-A, state:
      "It is professional misconduct for a lawyer to:
      (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; ...”

      . The provisions of ORPC Rule 8.4(c), 5 O.S. 2001 Ch. 1, App. 3-A, state:
      "It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ...”

      . The provisions of RGDP Rule 1.3, 5 O.S.2001 Ch. 1, App. 1-A, state:
      "The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.”

      . 2001 OK 96, 37 P.3d 856.

      . See Giger II, supra note 4 at V 23, n. 27, at 37, n. 27.

      . Art. 2, § 21 OKLA. Const.

      . Amend. V., U.S. Const.

      . Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969) ("[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”).

      . United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19-20, 14 L.Ed. 306 (1852)).

      . Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); Hess, supra note 20 at 548-549, 63 S.Ct. 386-87 (stating that only "criminal punishment to vindicate public justice ... subject[s] the defendant to ‘jeopardy’ within the constitutional meaning.”); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) (stating that for constitutional purposes, "jeopardy describes the risk that is traditionally associated with a criminal prosecution.”).

      . State ex rel. Okla. Bar Ass'n v. Groshon, 2003 OK 112, ¶ 16, 82 P.3d 99, 106 ("The disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, the judiciary, and of the legal profession."); State ex rel. Okla. Bar Assn v. Bradley, 1987 OK 78, ¶ 22, 746 P.2d 1130, 1134 (“The ultimate purpose in disciplining attorneys is not punishment but purification of the Bar and protection of courts and public in general.”).

      . See Unit Petroleum Co. v. Nuex Corp., 1991 OK 21, ¶ 5, 807 P.2d 251, 255 (Opala, C.J., with whom Kauger, J., joins, dissenting).

      . See e.g. Matter of Discipline of Babilis, 951 P.2d 207, 214 (Utah 1997) ("The penalties available under the Standards for Imposing Lawyer Sanctions are not punishment for double jeopardy purposes. An attorney's license to practice law is contingent on compliance with professional ethical standards. A restriction on, or withdrawal of, the right to practice law as a sanction for violation of professional ethical standards is remedial in nature.... Attorney discipline therefore is neither punitive nor a criminal penalty in any sense.”); Attorney Grievance Comm'n of Md. v. Brown, 308 Md. 219, 517 A.2d 1111, 1112 (1986) (Attorney's former jeopardy claim rejected “because lawyer discipline proceedings are not criminal proceedings.”); People v. Marmon, 903 P.2d 651, 652 (Colo.1995); Florida Bar v. Weed, 513 So.2d 126, 128 (Fla.1987).

      . McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 7, 979 P.2d 252, 255-56; Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887, 896; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶ 12, 946 P.2d 662, 667; Veiser v. Annstrong, 1984 OK 61, ¶ 8, n. 9, 688 P.2d 796, 800, n. 9.

      . 1977 OK 178, 572 P.2d 966.

      . Id. at ¶ 9, at 968. See also Allan D. Vestal, PERSONAL INJURY ANNUAL (1969) at V-43.

      . Ouellette v. State Farm Mutual Automobile Ins. Co., 1994 OK 79, ¶4, n. 8, 918 P.2d 1363, 1365, n. 8; National Diversified Business Services, Inc. supra note 25 at ¶ 11, at 666; Chambers v. City of Ada, 1995 OK 24, ¶ 9, n. 5, 894 P.2d 1068, 1072, n. 5; Wilson v. Kane, 1993 OK 65, ¶ 8, n. 23, 852 P.2d 717, 722, n. 23; Veiser v. Annstrong, supra note 25 at ¶ 8, n. 9, at 800, n. 9. See also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272 (10th Cir.1995) and RESTATEMENT OF JUDGMENTS (SECOND) § 27 (1982) ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”).

      . Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 458.

      . Id.

      . National Diversified Business Services, Inc., supra note 25 at ¶ 13, at 667.

      . See supra note 22.

      . Id. at ¶ 22, at 1134. A nolo contendere plea is generally not admissible against the person who made it in a later civil action or criminal proceeding, 12 O.S.2001 § 2410.A.2. and 22 O.S. 2001 § 513, nor is evidence of a judgment entered upon a plea of nolo contendere admissible as an exception to the hearsay rule. See 12 O.S.2001 § 2803.22. In Bradley the court held that the nature and purpose of a bar disciplinary proceeding calls for a less restrictive rule on the admission of a nolo contendere plea in proceedings against a member of the Bar. In contrast, a felony judgment entered upon a plea of guilty, which is no longer subject to appellate review, is admissible, 12 O.S.2001 § 2803.22., and a guilty plea would be admissible as an admission against interest. Laughlin v. Lamar, 1951 OK 330, ¶ 5, 237 P.2d 1015, 1016.

      . The pertinent provisions of RGDP Rule 6.4, 5 O.S.2001 Ch. 1, App. 1-A, state:
      “The respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respondent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed." (emphasis added).

      . Id.

      . A suspension from the practice of law for two years and one day is tantamount to disbarment. See the provisions of RGDP Rule 11.1, 5 O.S. 2001 Ch. 1, App.1-A. In order to be reinstated, a lawyer suspended for that period of time must follow the readmission procedure for disbarred lawyers. That procedure, set forth in the provisions of RGDP Rule 11.4, 5 O.S.2001 Ch. 1, App. 1-A., entails the following:
      "An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant's conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court’s former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the applicant complied with Rule 9.1 of these Rules.”

      . The provisions of RGDP Rule 6.12 recommend that disciplinary proceedings shall be generally governed, as far as is practicable, by the rules applicable to civil proceedings. The provisions of 12 O.S.2001 § 667 permit a trial court to continue an action at any stage of the proceedings for good cause shown. The provisions of 12 O.S.2001 § 668 provide that where the reason for a continuance is the absence of evidence, the party requesting a continuance must file a written motion which must be accompanied by an affidavit. Where the motion is based on an absent witness, the affidavit must show where the witness resides, if his residence is known, and the probability of procuring his testimony within a reasonable time. The Bar did not request a continuance orally or in writing and indicated that it has no prospect of obtaining the testimony of any witness to the events giving rise to the allegations in count two.