text:
    2002 OK 28
    STATE of Oklahoma ex rel. OkLAHOMA BAR ASSOCIATION, Complainant. v. Twana Cherese SMITH, Respondent.
    SCBD No. 4704.
    Supreme Court of Oklahoma.
    April 16, 2002.
   ORDER APPROVING - RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING - DISCIPLINARY PROCEEDINGS

T1 Upon consideration of the complainant's, Oklahoma Bar Association (Bar Association), application for an order approving the resignation of the respondent, Twana Cherese Smith (Smith/attorney), pending disciplinary proceedings, the application reveals:

1) On April 4, 2002, the respondent submitted her written affidavit of resignation from membership in the Bar Association pending investigation of a disciplinary proceeding.
2) The respondent's affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) she was not subject to coercion or duress; and c) she was fully aware of the consequences of submitting the resignation.
3) The respondent states in her affidavit of resignation that she is aware of a grievance filed against her with the Office of the General Counsel of the Oklahoma Bar Association. The grievance is based upon charges that the respondent committed a felony in violation of 21 O.S. 2001 § 488-earrying into jail things to aid escape. Rule 1.3, Rules Governing Disciplinary Proceedings, 5 0.98.2001, Ch: 1, App. 1-A; Rules 84(b) and (c), Oklahoma Rules of Professional Conduct, 5 0.9.2001 Ch. 1, App. 3-A.
4) The respondent waives any and all right to contest the allegations outlined in the affidavit. |
5) The respondent's resignation pending disciplinary proceedings is in compliance with all of the requirements set forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 0.8.2001, Ch. 1, App. 1-A, and it should be approved.
6) The official roster address of the respondent as shown by the Bar Association records is: 305 W. Gore Blvd., Law-ton, Oklahoma 78501.
7) No costs have been incurred by the Bar Association in the investigation of this matter.
8) The respondent acknowledges that her actions may result in claims against the Client Security Fund and agrees to reimburse the Fund for any disbursements made because of her actions.

12 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the resignation of TWANA CHERESE SMITH pending disciplinary proceedings be approved.

T3 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT the name of TWANA CHERESE SMITH be stricken from the roll of attorneys. Because resignation pending disciplinary proceedings is tantamount to disbarment, the respondent may not make application for reinstatement prior to the expiration of five (5) years from the date of this order. Pursuant to Rule 9.1, Rules Governing Disciplinary Proceedings, 5 0.8.2001, Ch. 1, App. 1-A, the respondent shall notify all of her clients having legal business pending with her within twenty (20) days, by certified mail, of her inability to represent them and of the necessity for promptly retaining new counsel. Repayment to the Client Security Fund for any monies expended because of the malfeasance or non-feasance of the respondent shall be a condition of the reinstatement.

14 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 15th DAY OF APRIL, 2002.

ALL JUSTICES CONCUR.


source: Caselaw Access Project

author: BOUDREAU, J. 1 35 OPALA, J.,

license: Public Domain

text:
    2002 OK 32
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant; v. Orven Ronald McGEE, Respondent.
    No. SCBD 4617.
    - Supreme Court of Oklahoma.
    April 28, 2002.
    Rehearing Denied May 20, 2002.

      Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Orven Ronald McGee, Ponea City, OK, Respondent, pro se.
   BOUDREAU, J.

I. Procedural History

{1 The Complainant Oklahoma Bar Association (OBA) brought Rule 6 disciplinary proceedings against Respondent attorney, Orven Ronald McGee, alleging two counts of professional misconduct. Respondent was admitted to practice law in Oklahoma in 1991 and was so licensed at all times relevant to the events addressed herein. Respondent's official roster address is P.O. Box 627, Ponea City, OK 74602.

T2 The Professional Responsibility Tribunal (Tribunal) held a hearing on July 24, 2001, where Respondent stipulated to violations of Rules 1.1, 1.2, 1.8, 1.6, and 1.7 of the Oklahoma Rules of Professional Conduct (ORPC), 5 0.9.1991 Ch. 1, App 3-A, and Rule 1.3 of the Rules Governing Disciplinary Proceedings (RGDP), 5 0.8.1991 Ch. 1, App. 1-A. The Tribunal noted for purposes of enhancement of discipline that Respondent has previously received two private reprimands from the Professional Responsibility Commission (Commission). ~Res'pondent received a private reprimand on May 22, 1998, for allowing the statute of limitations to expire on a client's case and on June 28, 2000, for filing a motion and not properly mailing it to the opposing side. Upon these findings, the Tribunal recommended Respondent be suspended from the practice of law for six (6) months. The OBA recommended Respondent be publicly censored.

II. Standard of Review

$3 We review the entire record de movo to determine if the allegations of misconduct are established by clear and convine-ing evidence. See State ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907; Rule 6.12(c), RGDP.

II. Count I, Lee Complaint

T4 The first complaint was brought by Tabitha Lee whom Respondent represented in an uncontested divoree. Ms. Lee's mother paid the Respondent a retainer of $800.00 for his services in the divorce case. Respondent did not obtain a written contact for his services. After the divorcee was granted, Respondent refused to file the decree because he claimed Ms. Lee owed him additional attorney fees. Ms. Lee refused to pay the additional fees maintaining the initial $800.00 payment was her total fee. Respondent placed the unfiled decree in his filing cabinet thinking, according to his testimony, that Ms. Lee would pay the fees within a week or two and that he would then file the decree. Ms. Lee never paid the additional fees and Respondent temporarily forgot about the un-filed divorce decree. However, Ms. Lee contacted Respondent several times thereafter requesting a file-stamped copy of her divorce decree. Respondent informed her that she would not receive the decree until the balance of her attorney fees was paid in full.

15 In October 2000, Ms. Lee contacted Respondent and told him she had contacted the OBA to inquire about filing a grievance. Respondent then met with Ms. Lee and provided her a filed-stamped copy of her divorce decree. Respondent also waived further attorney fees. By the time Respondent filed the divorce decree, a period of twenty-seven months had elapsed from the date the divoree was granted.

T6 Ms. Lee reviewed.the decree and discovered, by its terms, that child support was payable on the first day of the month following the filing of the decree rather than at the time the divorcee was granted. . To correct

this deficiency, Respondent hired another attorney to file a nune pro tune decree.

17 Ms. Lee filed a formal complaint with the OBA. The OBA contacted Respondent who fully cooperated in the investigation of the complaint. The parties have stipulated that Respondent's actions violated the following rules: Rules 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence) of the ORPC and Rule 1.3 (acts contrary to prescribed standards of conduct) of the RGDP.

18 Professional competence-acting promptly and diligently on a matter-is a mandatory obligation imposed upon attorneys. State ex rel. Oklahoma Bar Ass'n v. Johnston, 1993 OK 91, 863 P.2d 1186, 1145. Anything less is a breach of a lawyer's duty to serve his client. Id. We agree the evidence establishes, by a clear and convincing standard, that Respondent failed to act with reasonable - competence, - diligence - and promptness in representing Ms. Lee in violation of Rules 1.1 and 1.3, ORPC. Such actions by Respondent were contrary to prescribed standards of conduct and are grounds for discipline under Rule 1.3, RGDP.

T9 We further find Respondent violated Rule 1.2, ORPC, which imposes upon attorneys a duty to abide by a client's decisions concerning the objectives of representation. The scope of Respondent's representation was clear-to obtain a divorcee and file the decree. Ms. Lee consistently requested a copy of the filed divorcee decree. Respondent refused. When comparing Respondent's conduct with the duties imposed on him, we agree the evidence establishes, by a clear and convincing standard, that his actions violated Rule 1.2. Such actions by Respondent were contrary to prescribed standards of conduct and are grounds for discipline under Rule 1.8, RGDP.

IV. Count II, Ortega Complaint

110 Juanita Ortega filed the second complaint. She and several of her co-workers were arrested at their place of employment. Their employer asked Respondent to represent the employees on criminal charges arising out of the incident. At the first court appearance, Respondent realized he had previously represented Ms. Ortega's mother, June Henderson, and her brother, William Ortega. Respondent informed Ms. Ortega that he did not want to enter an appearance until he discussed this issue with her. 'He asked her to meet him at his office later that week.

{11 Respondent subsequently met with Ms. Ortega and informed her that approximately one to two years prior he had represented her mother and her brother in a case involving the guardianship of Ms. Ortega's minor children. Respondent had filed a petition with the court seeking guardianship of Ms. Ortega's children but had never obtained service on her. According to Respondent, when Ms. Henderson and Mr. Ortega began to disagree on the guardianship, Respondent informed them orally that he was not going to pursue the matter any further. However, Respondent never dismissed the case or withdrew - his representation - of Ms. Henderson and Mr. Ortega.

112 After Respondent explained the situation, Ms. Ortega signed a form prepared by Respondent which purportedly allowed him to represent both Ms. Ortega and her mother and waived any claim of a conflict of interest. Ms. Ortega asked Respondent not to tell her mother about the arrest or criminal charge. Respondent assented to this request. Respondent provided representation to Ms. Ortega on the criminal case which was completed in late 1999. Respondent never disclosed the potential conflict to Ms. Henderson or Mr. Ortega nor requested a waiver from either of them.

1 13 Despite informing Ms. Ortega that he would not pursue the guardianship any further and despite his assurances to her that he would not discuss her criminal case with her mother, Respondent's office prepared the following letter which came into the hands of Ms. Henderson. ~

RE: ORTEGA _- GUARDIANSHIP-JUNE HENDERSON
TO WHOM IT MAY CONCERN:
Please be advised that our firm represents Mrs. June Henderson in the above-referenced cause of action. We have asked for a court date to hear the Letters of Guardianship but due to jury trials, a date has not been set. j
This case has been on going for some time due to the inability to serve notice on the natural mother. She has avoided service by moving to different residences for a period of time. At the current time, our judge is in jury trial and has been in session in Newkirk, Ponea City and Perry. Please note also that this firm does not represent Juanita Ortega in ANY case at all. She was a party to a criminal case where we represented a club where employees were arrested for indecent exposure. Ms. Ortega signed a Waiver in this instance.
Dee Pettay for O. Ronald McGee Attorney for Petitioner

"[ 14 Respondent testified before the Tribunal that he did not instruct his secretary to prepare the letter nor was he aware that she had prepared the letter. . He insisted he was out of the office on the day the letter was prepared. He testified that his secretary never informed. him about the letter, although a copy was placed in Ms. Henderson's file.

15 The parties have stipulated that Respondent's actions violated Rules 1.2 (scope of representation), 1.6 (confidentiality of information), 1.7 (conflict of interest: general rule) of the ORPC and Rule 1.8 (acts contrary to prescribed standards of conduct) of the RGDP.

"116 A fundamental principle in the attorney-client relationship is that the lawyer maintain confidentiality of information relating to the representation. This principle applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information unless the client consents after consultation. Purthermoré, a lawyer is duty-bound to supervise the work done by lay personnel and stands ultimately responsible for work done by all nonlawyer staff. See State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, 4 P.3d 1242. The evidence establishes, by a clear and convincing standard, that Respondent, through his see-retary's actions, revealed client information in violation of Rule 1.6, ORPC. Such actions by Respondent were contrary to prescribed standards of conduct and are grounds for discipline under Rule 1.3, RGDP.

117 Respondent's conduct also violated Rule 1.7, ORPC, relating to conflicts of interest. The rule provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. Respondent violated this canon when he agreed to represent Ms. Ortega in the criminal matter when he was, concurrently, representing her mother and brother in a guardianship seeking custody of Ms. Ortega's children. He undertook the representation without disclosing the conflict or seeking a waiver from Ms. Henderson or Mr. Ortega. It should have been immediately apparent to Respondent that any information he acquired representing Ms. Ortega could conceivably be useful to Ms. Henderson and Mr. Ortega in their effort to seek custody of Ms. Ortega's children. Furthermore, Respondent's promise to Ms. Ortega to withhold information about the criminal charge from Ms. Henderson and Mr. Ortega severely limited his ability to effectively represent them in the custody action.

{18 We are not persuaded by Respondent's explanation that he did not intend to pursue the guardianship any further. His explanation in this regard is belied by the letter prepared by his office which states "[pllease be advised that our firm represents Mrs. June Henderson in the above-referenced cause of action. We have asked for a court date to hear the Letters of Guardianship but due to jury trials, a date has not been set." If Respondent did not wish to pursue the guardianship he was obliged to either dismiss the case or withdraw as the attorney of record.

{19 We find the record establishes by clear and convincing evidence that Respondent's conduct directly violated - Rule 1.7, ORPC. Such actions by Respondent were contrary to prescribed standards of conduct and are grounds for discipline under Rule 1.8, RGDP.

120 Although Respondent has stipulated to violating Rule 1.2, ORPC, we have a duty to review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. Stipulations of the parties and findings of fact and recommendations of the Tribunal are advisory, being neither binding nor persuasive. See State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, 991 P.2d 1015; State ex rel. Oklahoma Bar Ass'n v. Arthur, 1999 OK 97, 991 P.2d 1026. Rule 1.2 provides a lawyer shall abide by his client's decisions concerning the objectives of representation subject to certain qualifications. The record does not establish that Respondent failed to abide by his client's decisions concerning the objectives of representation. We find this allegation of professional misconduct is not supported by clear and convincing evidence.

V. Enhancement

$21 For purposes of enhancement of discipline the OBA asserted that Respondent previously received two private reprimands. He was reprimanded on May 22, 1998, for missing a statute of limitation and again on June 28, 2000, for filing a motion and not properly mailing it to the opposing side. This Court may consider previous discipline in fashioning the degree of discipline to be imposed for current misconduct.: Rule 1.7, RGDP.

VI. Mitigation

122 There are several factors present in this bar matter that bear on the issue of mitigation. - Respondent - cooperated throughout the course of the investigation and prosecution of the matter. Respondent freely admitted his conduct did not comply with provisions of the ORPC and RGDP and accepts full responsibility for his actions and those of his secretary. He apologized for the shortcomings of his behavior.

23 Respondent's actions did not result in financial harm to his clients nor did they adversely impact the legal proceedings. With respect to Ms. Lee, Respondent testified she received child support from her ex-husband, albeit sporadically, from the date the divorce was granted. Testimony further established the decree was corrected by another attorney, at Respondent's cost, and that Ms. Lee's ex-husband did not object to the filing of the nune pro tune decree.

1 24 As to Respondent's failure to maintain Ms. Ortega's information confidential, testimony before the Tribunal showed Ms. Ortega's mother knew of the arrest independent of the letter prepared by Respondent's office. Nevertheless, Respondent accepts full responsibility for his failure to supervise his secretary to the extent required to have prevented this misconduct.

1 25 Finally, Respondent testified that during the time in question his marriage was deteriorating and ultimately terminated in divorcee. Also, he was being treated for depression.

126 Mitigating circumstances may be considered in evaluating an attorney's conduct and assessing the appropriate discipline. State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK. 85, 4 P.3d 1242, 1255.

VIL Discipline

127 This Court possesses original and exclusive jurisdiction in bar disciplinary proceedings. Rule 1.1, RGDP. The Tribunal's findings, conclusions of law, or recommendations of discipline are not binding on this Court. State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, 914 P.2d 644, 648. "The ultimate responsibility to impose discipline in a case before this court is ours alone." Id.

T28 In imposing discipline, our purpose is not to punish the involved attorney, but to inquire into his continued fitness to practice law with a view to safeguarding the public, the courts and the legal profession. State ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, 848 P.2d 548, 546; State ex rel. Oklahoma Bar Ass'n v. Badger, 1995 OK 113, 912 P.2d 312; State ex rel. Oklahoma Bar Ass'n v. Mayes, 1999 OK 9, 977 P.2d 1078. With that purpose in mind, we must weigh or balance a myriad of factors in crafting an appropriate discipline, some that warrant increasing the severity of the discipline to be imposed and others that mitigate the severity.

T29 While Respondent's clients may not have been appreciably harmed by his conduct, his violations of the rules of professional conduct were serious and detrimentally impacted the administration of justice. Particularly troubling was his concurrent representation of Ms. Ortega, Ms. Henderson and Mr. Ortega. Conflict rules are designed to protect a client from a lawyer unable to undertake effective advocacy because of some adverse or conflicting interest. An attorney must be able to advocate for his client without conflicting loyalty to another client.

130 Respondent's admitted violations reflect, at a minimum, a misunderstanding and, at worst, a disregard of a lawyer's fundamental duty of loyalty to one's client. This Court has frequently chosen to impose some form of suspension for comparable violations. See State ex rel Oklahoma Bar Ass'n v. Berry, 1998 OK 78, 969 P.2d 975 (attorney's violation of the conflict of interest rule and his conduct in knowingly making false statements warranted four month suspension); State ex rel Oklahoma Bar Ass'n v. Wallace, 1998 OK 65, 961 P.2d 818 (attorney's violation of the conflict of interest rule, business dealings with a client and failing to adhere to the fiduciary standard of conduct obligatory on a trustee warranted two year suspension); State ex rel Oklahoma Bar Ass'n v. Williams, 1995 OK 130, 911 P.2d 905 (attorney's violation of the conflict of interest rule and failing to keep client property separate warranted suspension for six months). However, in State ex rel Oklahoma Bar Ass'n v. Blackburn, 1991 OK 35, 812 P.2d 379, an attorney's failure to file a brief in a criminal case and violation of the conflict of interest rule in a divoree case warranted public censure in light of mitigating evidence.

131 Having taken into consideration all cireumstances - surrounding - Respondent's misconduct, including extenuating and mitigating factors, his cooperation with the OBA, and his remorse, we conclude Respondent's serious violations of the ORPC and the RGDP warrant a four (4) month suspension together with the costs of this proceeding.

VIII. Conclusion

132 For the reasons set out in this opinion, Respondent is suspended from the practice of law for four (4) months and is ordered to pay the costs of the investigation and disciplinary proceedings in the amount of $467.01 within ninety (90) days of the effective date of this opinion, pursuant to Rule 6.16 of the RGDP. Respondent's suspension will begin on the effective date of this opinion.

133 RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR A PERIOD OF FOUR (4) MONTHS FROM THE EFFECTIVE DAY OF THIS PRONOUNCEMENT; AND COSTS IMPOSED.

34 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, KAUGER, SUMMERS, WINCHESTER, JJ., Concur.

1 35 OPALA, J.,

Concurs in Part and Dissents in Part.

I would suspend Respondent's license for six (6) months.

      . The rule provides a limited exception if the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation.


author: WATT, V.C.J.

text:
    2002 OK 33
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Thomas L. ALLDER, Respondent.
    SCBD No. 4636.
    Supreme Court of Oklahoma.
    April 23, 2002.
    Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Thomas L. Allder, Oklahoma City, OK, Respondent, pro se.
   OPINION

WATT, V.C.J.

{1 On July 80, 2001, the Oklahoma Bar Association filed a complaint alleging professional misconduct by Respondent, Thomas L. Allder. Allder filed his answer on August 18, 2001. The parties entered into a stipulation, which was filed on October 15, 2001. Allder and the Bar stipulated that Allder had violated the Oklahoma Rules of Professional Conduct as a result of his conduct before the United States Bankruptey Court and further stipulated that appropriate discipline would be public censure and the assessment of costs.

2 A hearing was held before a trial panel of the Professional Responsibility Tribunal on October 25, 2001. On January 80, 2002, the trial panel filed its recommendation and recommended the discipline stipulated to by the parties: public censure and the payment of costs. On March 18, 2002, the Bar filed its application to assess costs in the amount of $1,127.74.

FACTS AND PROCEDURAL BACKGROUND

T3 The Oklahoma Bar Association filed its complaint based on findings by the United States Bankruptey Court and a subsequent settlement agreement between Allder and the U.S. Bankruptey Trustee, which the Bankruptey Court and the United States District Court approved. Allder, a member of the Oklahoma Bar Association, had a practice that was largely limited to the Bankrupt-ey Court in Oklahoma City, in which he filed more than two-hundred cases a year. The agreement between Allder and the Bank-ruptey Trustee resulted in Allder's being suspended from practicing in the Bankruptcy Court for a period of five years. and further agreeing to refund attorney's fees to any of his clients who demanded such refunds.

4 Alider had been a practicing lawyer for fourteen years. He has not been the subject of any other Bar disciplinary proceedings.

T5 Most of Allder's clients were low income individuals with few assets. Many of these clients lacked the cash to pay Alider's fee and Bankruptey Court filing fees. Consequently, Allder frequently referred his clients to loan companies and arranged for them to borrow $650.00, the amount necessary to allow them to pay Allder's attorney's fee plus the Bankruptcy Court's filing fees. The clients would repay the loans at the rate of $90.00 per month for ten months. The parties stipulated that the effective interest rate on these loans varied from 28.28% per annum to 88.5% per annum but that the loans were made in the ordinary course of the finance companies' business and that Allder had no control over the terms of the loans. The parties also stipulated that Allder had no financial interest in any of the finance companies who made the loans to his clients and did not benefit financially in any way from the interest or fees that the finance companies collected on those loans. Further, the trial panel found that the loans were not usurious and their terms complied with Oklahoma law.

I 6 The Bankruptey Code, 11 U.S.C. § 829, requires that an "attorney representing a debtor in a case under this title ... shall file with the court a statement of the compensation paid or agreed to be paid ... for the services rendered or to be rendered in contemplation or in connection with the case by such attorney,. and the source of such compensation." Section 329 is implemented by Rule 2016(b) of the Federal Rules of Bank-ruptey Procedure, which provides, "Every attorney for a debtor, whether or not the attorney applies for compensation, shall file and transmit to the United States trustee within 15 days after the order for relief, or at another time as the court may direct, the statement required by § 829 of the Code...." In fifteen cases, Allder failed to reveal in his disclosure statement both that loans had been made by finance companies to his clients immediately before bankruptcy and that part of the proceeds from such loans had been used to pay his attorney's fee. Further, Allder failed to disclose any of the loans obtained by his clients in any Schedule F (Creditors Holding Unsecured Nonpriority Claims) he filed in the Bankruptey Court on behalf of his clients.

T 7 Only one of Allder's debtor clients filed a grievance with the Bar and that client later withdraw the grievance and the matter was dismissed by the Professional Responsibility Commission.

18 The Bankruptey Trustee alleged that Allder's failure to disclose the loans and that their proceeds had been used to pay attorney's fees and filing fees was misleading and violated Bankruptcy Court Rules. After a hotly contested trial in the Bankruptcy Court, the court indicated that it was prepared to sanction Allder. Before the Bank-ruptey Court formally sanctioned Allder, however he entered into the settlement agreement with the Trustee.

T9 The Bar contended in its complaint that Alider had violated Rules 1.7(b), 3.3(a)(1), and 8.4(c), Oklahoma Rules of Professional Conduct. The parties stipulated before the trial panel that Allder's statements in the Bankruptey Court disclosure statements were improper, misleading and ambiguous.

{ 10 The Bankruptcy Court issued an opinion in which it concluded that Allder had a conflict of interest with respect to the loars for attorney's fees because he had a duty to advise the debtor that the loan was dis-chargeable but if he did so, he risked losing his attorney's fee. The trial panel, however, found that there was no indication that such conduct was a conflict of interest, although it also observed that the evidence presented to the Bankruptcy Court might have differed from that presented to the trial panel.

T11 The trial panel found that Allder's conduct had been misleading because it failed to reveal the debtors' true financial situation and understated the ratio their expenses bore to their income. Nevertheless, the trial panel also noted that Allder no only did not profit from the loans but also refunded more than $9,000.00 in fees to former clients. In the cases in which Allder made the refunds his clients received his services free of charge. We note, too, that Alider clearly believed that he was acting in the best interests of his clients. Because of his belief that his actions were in his clients' best interests, Allder displayed some bitterness toward the Bankruptcy Court. He has, however, since apologized.

RECOMMENDED DISCIPLINE

112 Based on their stipulated facts the parties agreed that appropriate discipline would be public censure. The trial panel recommended to this Court that Allder's discipline be public censure.

DISCUSSION

T 13 There is no dispute here as to either the facts or the law. Allder and the Bar stipulated both to the facts and that Allder had violated the Oklahoma Rules of Professional Conduct. The trial panel accepted those stipulated findings and recommended the same discipline as that stipulated to by the parties, public censure and the payment of costs. As is our duty, we have considered this matter de novo, that is we have examined the record independently and non-deferentially. State ex rel. Oklahoma Bar Association v. Evans, 1994 OK 45 112, 880 P.2d 333, 3837. Our independent examination of the record leads us to conclude that the record supports the facts stipulated to by the parties, the application of the law to those facts made by the trial panel, and the recommended discipline.

14 Our responsibility in a bar disciplinary proceeding "is not to punish but to inquire into the lawyer's continued fitness, with a view toward safeguarding the interest of the public, the courts, and the legal profession." State ex rel. Okla. Bar Ass'n v. Adams, 1995 OK 17 14, 895 P.2d 701, 704. It is clear to us that Allder acted in a manner that he thought was in the best interests of his clients. Further, he has cooperated with the Bar through out this proceeding. Thus, it appears unlikely that the public will be endangered by our decision to allow Allder to continue in the practice of the law.

1 15 In State ex rel Oklahoma Bar Association v. Malloy, 2001 OK 101 ¶¶18-14, 37 P.3d 874, we observed, "In cireumstances where, as here, a lawyer has violated the Oklahoma Rules of Professional Conduct but has been guilty of no acts that have harmed his clients we have held that public censure is appropriate punishment. See State ex rel. Oklahoma Bar Association v. Borders, 1989 OK 101, 777 P.2d 929; State ex rel. Oklohoma Bar Association v. Blackburn, 1991 OK 35, 812 P.2d 379; and the cases cited in note 4 of Blackburn." We then held in Mail-loy "that public censure and the imposition of costs is the appropriate punishment here." Here, as previously noted, Allder acted as he did because he thought that doing so was in his clients' best interests.. Thus, based on Malloy and for the reasons set out below, we hold that public censure and the imposition of costs is the appropmate discipline in this matter.

T16 The trial panel recommended that we impose the discipline stipulated for by the parties: public censure. The trial panel did so because it thought the substantial discipline already imposed by the Bankruptcy Court, a five year suspension from practice there, was sufficient discipline in the practice area. The trial panel's recommendation was also influenced by the fact that Alider has received no compensation in the fifteen cases about which the Bankruptcy Court and its Trustee complained. Nevertheless, the trial panel was concerned by the hostile attitude Allder had displayed toward the Bankruptcy Court and thought that some additional discipline by this Court was warranted. We agree. We see no reason to impose greater discipline than that stipulated to and recommended by the trial panel because Allder has apologized for his remarks about the Bank-ruptey Court and because the discipline he has already received in the area of his practice is substantial, we hold that public censure and the payment of costs is appropriate discipline here. It is the order of the Court that Alider pay the costs of the proceeding, $1,127.74, not later than thirty days after the date this opinion is filed.

RESPONDENT - PUBLICLY - CENSURED AND ORDERED TO PAY THE COSTS OF THE PROCEEDING IN THE AMOUNT OF $1,127.74.

ALL JUSTICES CONCUR.

      . - Rule 1.7(b) provides as follows:
      A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      1. (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

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

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


author: BOUDREAU, J.

text:
    2002 OK 40
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Steven W. VINCENT, Respondent.
    No. SCBD, 4624.
    Supreme Court of Oklahoma.
    May 14, 2002.

      Mike Speegle, Assistant General Counsel, Oklahoma Bar Association; Oklahoma City, OK, for Complainant.
    Allen M. Smallwood, Tulsa, OK, for Respondent.
   BOUDREAU, J.

| I. Procedural History

{1 The Complainant Oklahoma Bar Association (OBA) brought Rule 6 disciplinary proceedings against Respondent attorney, Steven W. Vincent, alleging two counts of professional misconduct. Respondent was admitted to practice law in Oklahoma in 1978 and was so licensed at all times relevant to the events addressed herein. Respondent's official roster address is 408 S. Cheyenne Ave., # 304, Tulsa, Oklahoma 74103.

T2 The Professional Responsibility Tribunal (Tribunal) conducted a hearing on December 5, 2001, where Respondent stipulated to violations of Rules 1.1, 1.2, 1.8, 1.4, 1.16(d), and 3.2 of the Oklahoma Rules of Professional Conduct (ORPC), 5 0.8.1991 Ch. 1, App. 3-A, and Rule 5.2 of the Rules Governing Disciplinary Proceedings (RGDP), 5 0.8.1991 Ch. 1, App. 1-A. The Tribunal noted for purposes of enhancement of discipline that Respondent previously received one private reprimand from the Professional Responsibility Commission (Commission) on January 14, 2000, for (1) failing to attend a hearing which resulted in the client's case being dismissed, and (2) failing to timely respond to a motion which resulted in a judgment against his client for attorney fees. Upon these findings, the Tribunal recommends Respondent be publicly censured. The OBA and Respondent recommend Respondent be privately censored.

IIL - Standard of Review

13 We review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. See State ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907; Rule 6.12(c), RGDP.

III Count I, Wilburn Complaint

1 4 Respondent was appointed by the court to represent Carol Wilburn in defending a contempt citation filed by her ex-husband, Carl Burt, for failure to pay court ordered child support. The parties reached a settlement wherein Wilburn agreed to relinquish her interest in the marital home and her ex-husband agreed to forgo past due child support. The settlement also included an agreement that Wilburn would receive her income tax refund. Wilburn was concerned DHS, who was assisting her ex-husband in collecting past due child support, might intercept her refund pursuant to standard collection procedures if it was not notified that her child support obligations were current. In the event DHS did intercept the refund, the parties agreed it would be returned to Respondent or Wilburn.

15 After the parties concluded the settlement, the court dismissed the contempt citation by court minute and Mr. Burt's attorney. agreed to draft the journal entry reflecting the agreement. When Mr.. Burt's attorney failed to promptly draft the journal entry, Respondent neglected to ensure a journal entry was filed or that DHS. was notified of the settlement to protect Wilburn's rights.

1 6 Wilburn was unable to secure a journal entry until fourteen (14) months after the settlement was reached and only after she retained anotlier attorney. Respondent did not cooperate with Wilburn's new counsel, failed to withdraw from the case after new counsel entered his appearance and failed to timely respond to Wilburn's requests her file be returned. Wilburn contends Respondent still has not returned all of her documents. DHS subsequently intercepted Wilburn's refund and forwarded it to Mr. Burt who refused to return the funds.

. 17 At a hearing before the Tribunal, the parties stipulated Respondent's conduct constituted professional misconduct in violation of Rules 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.16(d) (failing to take reasonable steps upon termination of representation to protect a client's interests) and 8.2 (expediting litigation) of the ORPC.

T8 The ORPC imposes a mandatory duty upon attorneys to act promptly and diligently on matters and to communicate with clients. State ex rel. Oklahoma Bar Ass'n v. Johnston, 1998 OK 91, 863 P.2d 1136, 1145. The record before us provides clear and convincing evidence Respondent failed to act with reasonable diligence and promptness, failed to promptly reply to reasonable requests for information and the return of documents, and failed to make reasonable efforts to expedite Wilburn's case in violation of Rules 1.3, 14 and 3.2 of the ORPC. Such conduct by Respondent warrants discipline by this Court.

T9 Although Respondent stipulated and the Tribunal found a violation of Rule 1.2 of the ORPC, we find the evidence insufficient to establish a violation of this Rule. There is no evidence of a dispute between Respondent and his client regarding the objectives of his representation. _ Respondent - accordingly stands exonerated of that charge.

10 Although the OBA did not specifically chargé Respondent with a violation of Rule 1.16(d) of the ORPC, Respondent stipulated and the Tribunal found he failed, upon termination of representation, to take reasonable steps to protect Wilburn's interests, such as cooperating with new counsel and surrendering client documents. The fact the OBA did not specifically charge a violation of Rule 1.16(d) is of no consequence. The provisions of Rule 6.2 of the RGDP demand only that the complaint set forth the facts constituting the misconduct and does not require the lawyer be notified of the specific disciplinary rule the misconduct violates.

T11 The Complaint alleges a correct journal entry was not filed until Wilburn obtained new counsel and that Respondent failed to return Wilburn's documents. Respondent stipulated he was aware Wilburn had retained new counsel and that he failed to return calls from, or cooperate with, Wilburn's new attorney, and failed to return Wilburn's documents despite her requests. We find the record establishes by clear and convincing evidence Respondent violated Rule 1.16(d).

IV. Count II, Rollins Cdmplaint

112 Frances Rollins, represented by Robert Benningfield, filed a tort action against Warehouse Market. The court later dismissed the case without prejudice. Ben-ningfield refiled the case one year and one day following its dismissal. «Warehouse Market responded to the refilling with a motion to dismiss asserting the statute of limitations. At this point, Respondent became involved in the case and filed a response to the motion to dismiss. The court granted Warehouse Market's motion and dismissed the case. In dismissing the case, the court entered two orders. Respondent filed an appeal with this Court thirty (830) days from the date of the second order. This Court dismissed the appeal as untimely. Respondent maintains he never received the first order and mistakenly relied on the filing of the second order as the point in which his appeal time began to run.

{13 Rollins alleges that, in addition to handling the tort claim against Warehouse Market, Respondent agreed to represent her in a malpractice action against Benningfield. Respondent testified he never agreed to represent her in an action against Benningfield and that he specifically advised her he did not handle attorney malpractice claims. Respondent pointed out that Rollins currently had malpractice counsel for a claim against another firm. Respondent admits, however, that he never explicitly advised Rollins (1) he would not be handling the malpractice claim; (2) to contact another attorney; and (8) as to the applicable statute of limitations. The statute of limitations on the malpractice claim has expired.

{14 Respondent also acknowledges he failed to timely respond to Rollin's requests her file be returned despite her phone calls and visit. .

4 15 Before the Tribunal the parties stipulated Respondent's conduct constituted professional misconduct in violation of Rules 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.16(d) (failing to take reasonable steps upon termination of representation to protect a client's interests) of the ORPC and Rule 5.2 (investigations) of the RGDP, and constitutes grounds for professional discipline.

1 16 The ORPC imposes a mandatory obligation upon attorneys to provide competent representation and to act promptly and diligently on behalf of the client in the course of that representation. - Respondent violated Rules 1.1 and 1.3 of the ORPC by failing to timely and properly file Rollins' appeal. Respondent also violated Rule 1.4 and 1.16(d) of the ORPC by failing to properly respond to Rollins' request for information and the return of her documents and by failing to surrender all Rollins' documents upon termination of representation. We find the evidence before the Tribunal clearly and convincingly establishes Respondent violated these provisions of the ORPC.

[5] T17 We also find Respondent violated Rule 1.2, ORPC, for failing to adequately consult with Rollins concerning the scope of his representation. While it is uncertain whether the scope of Respondent's representation included pursuing the malpractice claim against Benningfield, at a minimum, he should have discussed the limits of his representation with his client. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available. However, the attorney bears the responsibility of ensuring the client is aware of those limitations. Respondent admits Rollins could have reasonably believed he would be representing her in the malpractice claim. Accordingly, Respondent did not adequately consult with Rollins regarding the representation and any limitations he asserts may have been placed on that representation. The Tribunal record establishes by clear and convincing evidence Respondent violated Rule 1.2.

V. Failure to Respond to the OBA and the Office of the General Counsel

{18 The OBA notified Respondent that the Rollins matter was under formal investigation and a response which contained a full and fair disclosure of all the facts and circumstances was due within twenty (20) days, as required by Rule 5.2 of the RGDP. After the twenty (20) days elapsed, Respondent replied to the OBA's request. The OBA sent Respondent a second letter requesting additional information and documentation. Respondent requested an extension of time to respond which was granted. Respondent missed this deadline and did not request or receive any further extensions. Respondent never replied to the OBA's request for additional information. The OBA deposed Respondent on November 19, 2001. Respondent was cooperative and testified he had no legal exeuse for his failure to respond to the OBA's letters.

{19 Respondent stipulated his conduct with regard to the Rollins matter violated Rule 5.2. The record supports by clear and convincing evidence a finding Respondent violated Rule 5.2.

VI. Enhancement

. 120 This Court may consider previous discipline in fashioning the degree of discipline to be imposed for an attorney's current misconduct. Rule 1.7 of the RGDP. For purposes of enhancement of discipline, OBA asserted Respondent previously received one private reprimand resulting from two complaints. Respondent received the reprimand on January 14, 2000, for (1) failing to attend a hearing which resulted in the client's case being dismissed, and (2) failing to timely respond to an opposing motion which resulted in the court entering judgment against his client for attorney fees. The attorney fee award was ultimately reduced after the client hired new counsel.

‘VII. Mitigation

121 Mitigating cireumstances may be considered in evaluating an attorney's conduct and assessing the appropriate discipline. State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, 4 P.3d 1242, 1255... The Respondent had ample opportunity at the hearing before the Tribunal to submit any facts he wished this Court to consider. As the record currently stands, there is nothing to consider in mitigation of Respondent's misconduct.

VIII - Discipline

122 This Court possesses original and exclusive jurisdiction in bar disciplinary proceedings. Rule 1.1 of the RGDP. The Tribunal's findings, conclusions of law, or recommendations of discipline are not binding on this Court. State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, 914 P.2d 644, 648. "The ultimate responsibility to impose discipline in a case before this court is ours alone." Id.

§$23 In imposing discipline, our purpose is not to punish the involved attorney, but to inquire into his continued fitness to practice law with a view to safeguarding the public, the courts and the legal profession. See State ex rel. Oklahoma Bar Ass'n v. Mayes, 1999 OK 9, 977 P.2d 1078; State ex rel. Oklahoma Bar Ass'n v. Badger, 1995 OK 113, 912 P.2d 812.

124 A review of the record establishes Respondent violated a number of his professional responsibilities to his clients and demonstrated an indifference to the investigatory and disciplinary processes of the OBA. Respondent's actions bring discredit upon the legal profession and form the basis for discipline.

T25 Each of Respondent's violations of professional misconduct demand the imposition of discipline. This Court has imposed varying degrees of discipline on lawyers who neglected client matters. The discipline imposed has ranged from public censure to suspension. See State ex rel. Oklahoma Bar Ass'n v. Minter, 1998 OK 59, 961 P.2d 208 (attorney publicly censured for failing to timely and properly file a notice of intent to appeal, failing to properly respond to a client's request for information, and for failing to respond to requests for information from the OBA); State ex rel. Oklahoma Bar Ass'n v. McManus, 1998 OK 66, 852 P:2d 727 (attorney publicly censured for failing to respond to requests for information from the OBA, failing to answer a letter from a client's new attorney, failing to return a client's telephone calls, and failing to prosecute a client's case so that it was ultimately dismissed); State ex rel. Oklahoma -Bar Ass'n v. Angel, 1993 OK 2, 848 P.2d 549 (attorney, who had previously received two private reprimands from the Commission, received a public censure for failing to respond to a motion for summary judgment); State ex rel. Oklahoma Bar Ass'n v. Glass, 1992 OK 74, 882 P.2d 831 (attorney publicly censured. for failing to withdraw after being dismissed from a case and failing to respond to requests for information from his client). rel. Oklahoma Bar Ass'n v. Wagener, 2002 OK 4, 48 P.3d 771 (attorney suspended for sixty (60) days for failing to adequately communicate with his client, failing to provide his client with information that would allow him to protect his own interest, failing to surren-See also State ex der papers and property belonging to the client and failing to adequately respond to the OBA); State ex rel. Oklahoma Bar Ass'n v. Denney, 1980 OK 148, 617 P.2d 1851 (Okla. 1980) (attorney suspended for three months for failing to file required brief which resulted in dismissal of appeal).

€T26 The professional misconduct of Respondent compels us to impose upon Respondent a thirty (30) day suspension from the practice of law. In addition, Respondent is ordered to pay the costs of these proceedings in the amount of $905.00, in accordance with Rule 6.16 of the RGDP.

IX. Conclusion

27 For the reasons set out in this opinion, Respondent -is suspended from the practice of law for thirty (30) days and is ordered to pay the costs of the investigation and disciplinary proceedings in the amount of $905.00 within ninety (90) days of the effective date of this opinion, pursuant to Rule 6.16 of the RGDP. Respondent's suspension will begin on the effective date of this opinion.

RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR A PERIOD OF THIRTY (30) DAYS FROM THE EFFECTIVE DAY OF THIS PRONOUNCEMENT; AND COSTS IMPOSED.

ALL JUSTICES CONCUR.

      . Wilburn now asserts Respondent failed to consider and include child support previously paid by her in determining the settlement. Réspon-dent denies this allegation. '


author: HODGES, J.

text:
    2002 OK 41
    Rodrigo IBARRA, Petitioner, v. HITCH FARMS, Own Risk, and The Workers' Compensation Court, Respondents.
    No. 96,828.
    Supreme Court of Oklahoma.
    May 21, 2002.
    Rehearing jDenied June 25, 2002.

      Brandon J. Burton, Burton & Associates, Oklahoma City, Oklahoma, for petitioner.
    Michael D. Carter, Carter & Kirk, P.C., Oklahoma City, Oklahoma, for respondent.
   HODGES, J.

T1 Certiorari review of this matter was granted to address a single issue on which divisions of the Court of Civil Appeals are split: Does the two year statute of limitations in a workers' compensation action begin to run from the date of the injured worker's last authorized medical treatment or does it run from the date of payment of that treatment? This Court holds that, pursuant to section 48(A) of the Workers' Compensation Act, the statute of limitations begins to run with the last payment of medical treatment authorized by the employer or the insurance carrier. "

12 Rodrigo Ibarra (Worker) sustained a job-related injury on February 22, 1999. He last sought medical treatment on April 6, 1999. 'On June 1, 1999, the last payment for authorized medical treatment was made. On April 9, 2001, Worker filed his claim for compensation. The Workers' Compensation Court and the Court of Civil Appeals held that under title 85, section 48(A), of the Oklahoma Statutes, a workers' compensation claim must be brought within two years of the date of the last authorized medical treatment rather than the date of payment for that treatment. Those courts found the April 6, 1999, claim to be time barred.

3 In its decision sustaining the order of the Workers' Compensation Court, division 1 of the Court of Civil Appeals relied upon Hadley v. American General Life Insurance Co., 634 P2d 1326 (Okla.Ct.Civ.App.1981) (cert. den. Sept. 28, 1981), which construed the pre-1985 version of section 48. In doing so, it made no mention of Division 2s recent opinion in Harlow v. Noble County, Own Risk, 2002 OK CIV APP 20, 41 P.3d 1024 (cert. den. Jan. 14, 2002), which concluded that the statute of limitations runs from the date of last payment of authorized medical treatment. - The differing constructions placed on the statute of limitations by divisions of the Court of Civil Appeals highlights the ambiguity found in section 48(A).

T4 A decision holding a Workers Compensation claim is barred by the statute of limitations is a conclusion of law. It is therefore subject to de novo review. Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001, 1004. _

15 The statute of limitations for a single injury workers' compensation claim provides:

The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers' Compensation Court. Provided however, a claim may be filed within two (2) years of the last payment of any compensation or remuneration paid in lieu of compensation or medical treatment which was authorized by the employer or the insurance carrier. '

Okla.Stat. tit. 85, $ 48(A) (2001).

T6 There are "two exceptions that toll the time when a workers' compensation claim for single-event trauma can be brought." Smith v. Matrix Serv. Inc., 2001 OK CIV APP 75, 25 P.3d 298, 300 (cert. den. May 22, 2001). The first concerns "compensation or remuneration paid in lieu of compensation." The second concerns "medical treatment which was authorized by the employer or the insurance carrier." The issue becomes: Does the phrase "last payment of" refer to one exception or to both? If it applies to both, then the date of payment for authorized medical treatment becomes the operative event in the statute's application to this matter.

T7 The Court of Civil Appeals held that the phrase "last payment of" applies only to "any compensation." It then applied the two year limitations period from the date of "medical treatment" rather than the date of "payment of ... medical treatment" to hold the claim time barred. It did so in reliance on the 1981 Court of Civil Appeals decision in Hadley, 634 P.2d 1826.

18 Hadley construed the pre-1985 version of section 48 which provided that "claims may be filed at any time within one (1) year from the date of last payment of any compensation or remuneration paid in lieu of compensation or within one (1) year from last authorized medical treatment." - Okla.Stat. tit. 85, § 48 (1981). Hadley held that, under that version of the statute of limitations, the date of treatment, not payment for treatment, triggered the running of the statute.

T9 Recently, the Court of Civil Appeals was asked to construe the current version of the statute, enacted in 1985, in Harlow, 41 P.3d 1034. That court declined to follow Hadley based on the 1985 changes in the language of the statute and based on a 1991 Court of Civil Appeals decision which 'concluded that it was the last payment of medical treatment which triggered the running of the statute. See Gabler v. Embassy Swites Hotel, 815 P.2d 201, 202 (Okla.Ct.Civ.App. 1991).

{10 This Court approves the construction placed on section 48(A) in Gabler and Harlow. The 1985 amendment to the statute of limitations makes the operative event the last payment of either (1) compensation or remuneration in lieu thereof, or (2) authorized medical treatment.

' 11 The record in this matter reveals that the last payment of authorized medical treatment was made on June 1, 1999. Therefore, Worker's claim filed April 9, 2001, was timely. The opinion of the Court of Civil Appeals and the order of the Workers' Compensation Court are vacated. The cause is remanded to the Workers' Compensation Court for proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANT ED; OPINION OF COURT OFP CIVIL APPEALS VACATED; ORDER OF WORKERS COMPENSATION COURT VACATED; CAUSE REMANDED TO TRIAL TRIBUNAL WITH DIRECTIONS TO TREAT CLAIM AS TIMELY FILED AND FOR FURTHER PROCEEDINGS CcoNnsISTENT - WITH THIS PRONOUNCEMENT. - _

1 12 All Justices Concur.


text:
    2002 OK 48
    In the Matter of the REINSTATEMENT OF John Michael GASSAWAY to Membership in The Oklahoma Bar Association and in The Roll of Attorneys.
    No. S.C.B.D.4609.
    Supreme Court of Oklahoma.
    June 4, 2002.
   ORDER OF REINSTATEMENT TO OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS

11 John Michael Gassaway [applicant] was convicted on May 17, 1995 in the United States District Court for the Western District of Oklahoma of one count of making a false statement on a tax return. His resignation from the Oklahoma Bar Association [OBA] pending disciplinary proceedings ensued. By order dated July 18, 1995 the Court approved his resignation and struck his name from the Roll of Attorneys. He served his federal sentence; waited (in excess of) the rule-mandated five years; and now seeks (a) reinstatement to OBA membership and (b).his name added to the Roll of Attorneys. _

12 Applicant's petition and proffered evidence were considered by the Trial Panel of the Professional - Responsibility Tribunal [PRT] at a November 6, 2001 reinstatement hearing. After receiving the testimony of various lawyers, friends and other accounting, medical and legal professionals and in accordance with R.G.D.P. 11.5's mandate the Trial Panel made the following findings: (1) Mr. Gassaway now possesses that degree of good moral character which would entitle him to reinstatement; (2) he has not engaged in the unauthorized practice of law during the period of his suspension; (8) he has demonstrated that degree of legal competency required for admission to the Bar, having completed sixty-six (66) hours of Continuing Legal Education courses since 1996; (4) he is contrite about his wrongful conduct and is remorseful for the disrepute which it brought upon the profession; and (5) he has serupu-lously adhered to the restrictions placed upon the conduct of law clerks-one of the employment venues pursued by Mr. Gassa-way upon his release from prison in 1996-so as to avoid all appearance that he was engaging in the unauthorized practice of law. The Trial Panel also found that Mr. Gassaway repaid all delinquent tases owed and had otherwise resolved his problems with the Internal Revenue Service. After consideration of the adduced evidence the PRT strongly recommended the applicant's reinstatement.

13 When in the exercise of its ex-elusive jurisdiction the Court considers a petition for reinstatement, it does so under a de movo standard of review. We are guided in the assessment of Mr. Gassaway's petition by consideration of the eight factors identified in Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125, 1180. There the following were determined to be relevant in determining fitness for readmittance: (1) applicant's present moral fitness, (2) demonstrated consciousness of his conduct's wrongfulness and the disrepute which it has brought upon the profession, (8) the extent of petitioner's rehabilitation, (4) the original misconduct's seriousness, (5) applicant's conduct after suspension, (6) the elapsed time since the applicant's discipline, (7) applicant's character, maturity and experience when he was suspended, and (8) present legal competence. Upon de novo review the Court concludes the record demonstrates that applicant has by clear and convincing evidence satisfied the above-enunciated criteria for reinstatement.

T4 In response to the Court's May 20, 2002 order and in satisfaction of R.G.D.P. 11.1(b)s requirements applicant has shown that he has repaid all funds which the Client Security Fund earlier expended on his behalf. Further, by his notice filed on January 18, 2002 applicant shows that in accordance with R.G.D.P. 11.1(c)'s terms he has paid all costs associated with processing his reinstatement application.

«[ 5 While Mr. Gassaway's felony conviction indeed brought disrepute upon the profession, the record demonstrates that he has admitted publically the error of his behavior and fully accepted responsibility for the consequences of his criminal acts. He also has retained the services of an accountant to assist him in the management of his income and to insure that future tax problems do not arise. Mr. Gassaway has rehabilitated himself to a point where those testifying on his behalf commended his maturation and moral growth. The evidence shows that by his conduct over the time since his conviction Mr. Gassaway has reconstructed his life and rededicated himself to the principles of honesty and commitment to community necessary to garner public trust. The PRT"s ree-ommendation is accepted. Petitioner shall be reinstated to membership in the Oklahoma Bar Association and his name placed on the Roll of Attorneys.

T6 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 3rd DAY OF JUNE, 2002.

T7 ALL JUSTICES CONCUR.

      . RG.D.P. 11.1(e) requires that one-who has resigned pending disciplinary proceedings-shall not be readmitted to OBA membership for five years following the effective date of the Court's order accepting the resignation.

      . Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426, 427.

      . See Matter of Reinstatement .of Crabtree, III, 1990 OK 49, 793 P.2d 296. There the Court ordered reinstatement of an attorney who had been convicted of federal income tax evasion. The Court notes that the crime for which Mr. Gassaway was convicted did not stem from abuse of his position as an attorney.

      . In his testimony applicant acknowledged that the blame for his misconduct rested solely with himself and not upon his clients, extensive practice or anything else.


author: DURRANT, Justice:

text:
    2001 UT 104
    STATE of Utah, Plaintiff and Appellant, v. Richard NORRIS, Defendant and Appellee.
    No. 20000698.
    Supreme Court of Utah.
    Dec. 11, 2001.

      Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, E. Neal Gunnarson, Asst. Att'ys Gen., Salt Lake City, for plaintiff.
    Jared W. Eldridge, Provo, for defendant.
   DURRANT, Justice:

T1 In this appeal, we consider the constitutionality of a search warrant issued by a magistrate authorizing the seizure of all business records from three corporations. The corporations were allegedly operated by Richard Norris to commit communications fraud. At a pre-trial hearing, the district court held that, although probable cause existed for the issuance of the "all records" search warrant, the warrant violated the Fourth Amendment's particularity requirement because it was overly broad. Due to that determination, the district court suppressed all the evidence seized by the State pursuant to the warrant. We affirm the district court's probable cause holding, but reverse its decision with respect to the Fourth Amendment's particularity requirement. An "all records" search warrant is sufficiently particular where the affidavit serving as the basis for the warrant includes allegations sufficient to support a conclusion that the business to be searched is permeated with fraud. Such an affidavit is present here. Accordingly, we hold that the district court erred in granting Norris's motion to suppress.

BACKGROUND

12 On April 1, 1997, Ronald Barton, a Special Agent for the Utah Attorney General's Office, Consumer Rights Division, appeared before a magistrate requesting a search warrant. In support of his request, Barton prepared a twenty-one page affidavit and presented it to the magistrate. In this affidavit, Barton alleged that Norris and Em-illo Cortez defrauded citizens of Utah via three companies incorporated in Pennsylvania: Maxtron Corporation, Santos International, and United Investors Credit Services. Specifically, Barton claimed that Norris had devised and implemented a scheme to defraud Utah subcontractors by inducing them to enter into advertising contracts, inducing them to breach these contracts, and then suing them.

I. ALLEGATIONS CONTAINED IN BARTONS AFFIDAVIT

T3 Barton's affidavit relied upon statements obtained from eleven individuals, including two of Norris's former employees and several subcontractors. Based on these statements, Barton claimed that Norris initiated the fraud by approaching general contractors conducting business in Utah and asking them to "sponsor" quarterly construction brochures. These brochures contained space for advertising. Norris allegedly persuaded the general contractors to act as sponsors by offering to publish the brochures free of charge.

{4 Once Norris received approval from the general contractors, he purportedly sold the advertising space included in the brochures to subcontractors that had a prior employment relationship with the general contractor. Barton further alleged in his affidavit that ninety-nine percent of the subcontractors purchasing advertising space signed promissory notes obligating them to make installment payments to Maxtron, a corporation listing Norris as its president. These signed notes contained a confession of judgment provision recognized under Pennsylvania law, which authorized Maxtron to obtain confessions of judgment against defaulting subcontractors for the full amount of the promissory note and $2,000 in attorney fees.

I5 Following the execution of these promissory notes, Norris, acting on behalf of Maxtron, allegedly transferred Maxtron's contractual rights to Santos International. Norris then, acting as an agent for Santos International, immediately transferred the rights from Santos International to United Investors. Although Norris. allegedly informed the subcontractors that he had no affiliation with either Santos International or United Investors, Barton's affidavit asserted that Norris opened the mail sent to each corporation, managed the finances of both companies, and was the sole signatory on all of the accounts owned by the two businesses.

1 6 Following the transfer of these contractual rights, Norris purportedly led the subcontractors into default through various misrepresentations. According to the affidavit, Norris lulled the subcontractors into default by informing them that they did not have to make any payments until they received, and approved, the advertisement proofs from Maxtron. Further, Norris allegedly told the subcontractors they should ignore any notices demanding payment sent by Santos International or United Investors.

T7 According to the affidavit, the subcontractors relied on Norris's misrepresentations and defaulted on the promissory notes. Norris then allegedly obtained confessions of judgment against the subcontractors in Pennsylvania. These default judgments resulted in United Investors recovering the full value of the promissory notes and $2,000 in attorney fees.

18 Barton's affidavit also included extensive allegations regarding the business purpose behind the Pennsylvania corporations, including the following allegations: (1) the money generated from the advertising contracts sold to the subcontractors barely covered the cost of publishing the brochures, (2) Maxtron produced just one legitimate brochure during the six month tenure of one of Norris's former employees, (8) Maxtron occasionally published falsified brochures in an attempt to prove that the advertisement proofs were created before the subcontractors had defaulted, (4) Norris incorporated Maxtron, Santos International, and United Investors in Pennsylvania to take advantage of Pennsylvania's confession of judgment law, (5) Norris inserted the confession of judgment language into the promissory notes because it enabled him to obtain judgments against the subcontractors without notifying them or serving them with any papers, (6) Norris preferred to sue the subcontractors because "suing the subs on the contracts was actually how he made his money," and (7) Norris profited in the amount of $1800 by including the attorney fee provision in the promissory notes because he paid his attorneys only $200 for each default judgment.

II. ISSUANCE OF THE "ALL RECORDS" SEARCH WARRANT

T9 Based on the allégations contained in Barton's affidavit, the magistrate concluded that all the business documents of the three corporations were "used to commit a ... public offense," intended to be "use[d] as a means of committing a ... public offense," or comprised "evidence of illegal conduct." The magistrate therefore issued a search warrant authorizing state agents to (1) search both Norris's business establishment and personal residence and (2) seize "documents relating to the business activities of Richard Franklin Norris and Emilio Cortez, operating as Max-tron Corp.[ ], Santos International, and United Investors." Acting under the authority of this warrant, state agents seized all the business documents. of the three corporations located at the two locations specified in the warrant.

III. DISTRICT COURT REVIEW

[ 10 Subsequently, the State charged Norris with seven counts of communications fraud. Following a preliminary hearing, the district court bound Norris over for trial on all seven counts. Norris then moved to suppress the evidence seized by the State pursuant to the warrant. After a hearing on this matter, the district court granted Norris's motion to suppress, concluding that the search warrant violated the Fourth Amendment's particularity requirement. The district court did so despite holding that Barton's affidavit provided sufficient probable cause for the magistrate to issue the warrant. Thereafter, the State petitioned the Utah Court of Appeals for permission to bring an interlocutory appeal. See Utah R.App. P. 5a). The court of appeals granted that request and later certified the State's appeal to this court pursuant to rule 48 of the Utah Rules of Appellate Procedure.

- IV. CLAIMS ON APPEAL

{11 On appeal, the State argues that the district court erred in granting Norris's motion to suppress, challenging the court's determination that the "all records" search warrant violated the Fourth Amendment. In response, Norris contends that the district court properly concluded that the "all ree-ords" search warrant was overbroad. He asserts that the search warrant issued by the magistrate violated both the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution. He further claims that even if the language of the search warrant is sufficiently particular, the judgment below should be affirmed because the magistrate lacked a substantial basis for concluding that probable cause existed to support the search warrant.

ANALYSIS °

{12 This appeal raises the followihg issues: (1) whether Barton's affidavit contained sufficient information to allow the magistrate to determine that probable cause existed for the issuance of the search warrant, and (2) whether a search warrant permitting the seizure of all business records is sufficiently particular under (a) the Fourth Amendment of the United States Constitution or (b) Article I, Section 14 of the Utah Constitution. '

13 Addressing each question in turn, we first conclude that the district court properly affirmed the magistrate's probable cause finding. We reverse the district court's decision to suppress the evidence seized by the State, however, holding that the "all records" search warrant complies with the requirements of the Fourth Amendment because Barton's affidavit included allegations sufficient to establish probable cause that the three corporations were permeated with fraud. We do not address Norris's state constitutional argument because he has not adequately briefed that claim.

I. THE MAGISTRATE HAD A SUBSTANTIAL BASIS FOR CONCLUDING THAT PROBABLE CAUSE EXISTED TO BELIEVE THAT EVIDENCE OF A CRIME WOULD BE FOUND AT THE TWO PLACES NAMED IN THE WARRANT ;

A. Standard Of Review

114 Where a search warrant supported by an affidavit is challenged as having been issued without an adequate showing of probable cause, our review focuses on the magistrate's probable cause determination. See, eg., State v. Thurman, 846 P.2d 1256, 1259-60 (Utah 1993); State v. Babbell, TIO P.2d 987, 991 (Utah 1989); State v. Hansen, 782 P.2d 127, 129 (Utah 1987). In reviewing the magistrate's decision, we assess whether the magistrate had a " 'substantial basis' for determining that probable cause existed." Thurman, 846 P.2d at 1259-60 (quoting Babbell, 770 P.2d at 991). 'We afford the magistrate's decision " 'great deference' " and consider the affidavit relied upon by the magistrate " 'in its entirety and in a common| Jsense fashion." " Id. at 1260 (quoting Babbell, 770 P.2d at 991). "The affidavit must support the magistrate's decision that there is a 'fair probability' that evidence of the crime will be found in the place or places named in the warrant." Id. (quoting Illinois v. Gates, 462 U.S. 218, 2838, 108 S.Ct. 2817, 76 LEd.2d 527 (1983) (footnote omitted)).

B. Analysis

1[ 15 In this case, the magistrate concluded that there was probable cause to believe (1) that evidence of illegal conduct would be found at the two places named in the warrant and (2) that all the business records of Maxtron, Santos International, and United Investors related to criminal activity. Because the magistrate's probable cause finding included two separate determinations, we deem it necessary to engage in a two-step probable cause analysis. As a threshold matter, we must determine whether the magistrate had a substantial basis for her probable cause finding that evidence of illegal conduct would be found at the places specified in the warrant. See Thurman, $46 P.2d at 1260. Assuming the magistrate had a substantial basis for her initial probable cause determination, we must then, in order to assess whether the Fourth Amendment's particularity requirement was satisfied, ascertain whether the magistrate had a substantial basis for concluding that probable cause supported the seizure of all the business records of the Pennsylvania corporations. Id.

{16 Reviewing Barton's affidavit in its entirety, we first conclude that the magistrate had a substantial basis for determining that probable cause existed to believe that evidence of flegal conduct would be found at the places designated in the warrant. A substantial basis existed because the twenty-one page affidavit submitted by Barton included extensive and detailed information regarding Norris's allegedly fraudulent business scheme. See United States v. Kail, 804 F.2d 441, 444 (8th Cir.1986) (holding that a magistrate had a substantial basis for determining that probable cause existed where the supporting affidavit elaborated on the crime in detail); State v. Bailey, 675 P.2d 1203, 1206 (Utah 1984) (concluding that an affidavit describing the defendants' scheme in detail, including personal observations of the crime, warranted a finding of probable cause); State v. Romero, 624 P.2d 699, 703-04 (Utah 1981) (holding that a magistrate had a substantial basis to support a finding of probable cause because the affidavit recounted the alleged criminal activity in detail). Indeed, contrary to Norris's assertion, Barton's affidavit did not merely provide irrelevant, inadmissible, or conclusory information; rather, the twenty-one page affidavit chronicled Norris's alleged scheme at length and provided the magistrate with a "fair probability" that a search of the two locations would uncover evidence of fraud. Thurman, 846 P.2d at 1260 (quoting Gates, 462 U.S. at 238, 108 S.Ct. 2817).

T 17 For instance, in his afﬁdawt, Barton alleged that Norris sold advertising space to Utah subcontractors and then stalled those subcontractors into default through various misrepresentations. He further claimed that Norris capitalized on favorable default provisions included in the advertising agreements by obtaining confessions of judgment against the defaulting subcontractors in Pennsylvania. Expounding on .this alleged scheme at length, Barton asserted that evidence of a criminal offense could be found at Norris's Utah office and residence because "the three Pennsylvania corporations were operated by Norris from his West Valley. office" and Norris stored some business records at his personal residence.

118 Moreover, Barton supported the allegations set forth in his affidavit by citing information gleaned from eleven different individuals. This extensive support enhances the affidavit's credibility because "reliability and veracity are generally assumed when the informant is a citizen who receives nothing from the police in exchange for the information." State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992).

{19 As further proof of the affidavit's reliability, we note that the eleven individuals interviewed by Barton were intimately acquainted with Norris's alleged modus operan-di. See Hansen, 782 P.2d at 130 (noting that reliability of information is enhanced if the informant personally observes the crime); see also Gates, 462 U.S. at 284, 108 S.Ct. 2317 (declaring that a "detailed description of the alleged wrongdoing, along with a statement that the event was observed firsthand," increases the reliability of an informant's tip). In fact, the individuals interviewed by state agents claimed that they were either personally defrauded by Norris or unwittingly duped into assisting him. The information gleaned from Norris's two former employees is particularly persuasive. Both employees made statements indicating that the Pennsylvania businesses were nothing 'but fronts to perpetrate a fraud. Barton's affidavit therefore provided substantial support for the magistrate's conclusion. Accordingly, we uphold the magistrate's decision that probable cause existed to believe that evidence of communications fraud would be found at the places named in the warrant.

II. A SEARCH WARRANT AUTHORIZING THE SEIZURE OF ALL BUSINESS RECORDS IS SUFFICIENTLY PARTICULAR UNDER THE FOURTH AMENDMENT WHERE THERE IS PROBABLE CAUSE TO BELIEVE THAT THE BUSINESS TO BE SEARCHED IS PERMEATED WITH FRAUD

A. Standard Of Review

120 We next address whether the "all records" search warrant issued by the magistrate violated the Fourth Amendment's particularity requirement. The district court ruled that the search warrant was unconstitutionally overbroad and thus suppressed the evidence seized by the State. Because the district court's conclusion regarding the scope of the Fourth Amendment's particularity requirement is a question of law, we review the court's decision for correctness. See State v. Brown, 858 P.2d 851, 855 (Utah 1992); see also United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988) (declaring that a district court's decision to strike down a search warrant as overly broad is subject to de novo review).

B. Analysis

121 Federal circuits addressing the Fourth Amendment's particularity requirement have concluded that an "all records" search warrant complies with the United States Constitution where there is probable cause to believe that the business to be searched is permeated with fraud. United States v. Oloyede, 982 F.2d 1383, 141 (4th Cir 1992); United Stotee v. Kail, 804 F.2d 441, 445 (8th Cir.1986); see also United States v. Bentley, 825 F.2d 1104, 1110 (7th Cir.1987); Williams v. Kunze, 806 F.2d 594, 598 (5th Cir.1986); United States v. Offices Known As 50 State Distrib. Co., 708 F.2d 1371, 1374 (9th Cir.1988); of United States Postal Serv. v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir.1989) (stating that "when the criminal activity pervades the entire business, seizure of all business records is appropriate, and broad language used in warrants [does] not offend the particularity requirement[ ]").

%22 Although we have not had occasion in the past to address this question, we now adopt the rule articulated by our federal colleagues. We hold that an "all records" search warrant is constitutional where there is probable cause to believe that the business to be searched is permeated with fraud. Oloyede, 982 F.2d at 141; Kail, 804 F.2d at 445. We emphasize that the "permeated with fraud" doctrine does not stand for the proposition that an "all records" search warrant is constitutional whenever a business allegedly commits an act of fraud. If the fraudulent conduct infects only one part of the business, the warrant must be limited to documents related to that particular aspect of the business operation. Bentley, 825 F.2d at 1110. But, where the whole business is "permeated with fraud," a warrant authorizing the seizure of all the business records of a corporation is permissible. Kail, 804 F.2d at 445.

123 In the present case, the magistrate found probable cause to believe that all the business records of Maxtron, Santos International, and United Investors related to criminal activity. Norris contends that this finding is insufficient to support an "all records" search warrant because the magistrate never determined that the three corporations were "permeated with fraud." We disagree. Although the magistrate did not specifically state that Norris's businesses were permeated with fraud, that conclusion is nee-essarily encompassed within her probable cause finding. To find that "there [was] probable cause to believe" that all the documents of the three companies related to "illegal conduct" or to a "public offense," as the magistrate's warrant did, is the substantive equivalent of finding that the companies were permeated with fraud.

124 Moreover, Norris points to no authority for the proposition that a magistrate must explicitly state that a business is permeated with fraud in order to issue an "all records" search warrant. An "all ree ords" search warrant issued by a magistrate is valid if the supporting affidavit relied upon by the magistrate includes allegations sufficient to establish probable cause that the businéés to be searched was permeated with fraud. Oloyede, 982 F.2d at 141. We therefore hold that requiring a magistrate to use the phrase "permeated with fraud" would be "unreasonably 'hypertechnical' " CJ id. at 140-41 (holding it would be unreasonably hypertechnical to require an affiant to specifically claim that the business was permeated with fraud).

125 Because the magistrate found probable cause to believe that all the business records of the Pennsylvania corporations related to criminal activity, we need only ensure that, as in our previous probable cause inquiry, the magistrate had a " 'substantial basis' " for her probable cause finding. Thurman, 846 P.2d at 1260 (quoting Babbell, TTO P.2d at 991). Here, Barton's affidavit provided a sufficient basis for the magistrate's determination. The detailed affidavit indicated that Maxtron, Santos International, and United Investors were not engaged in any legitimate business activity. Specifically, Barton's affidavit declared as follows: (1) "only one brochure was actually sent out on time" during the six month tenure of one of the employees, (2) "that the money from advertising barely covered the cost of publishing the brochures," and (8) Norris "did not mind suing the subs in court because suing the subs on the contracts was actually how he made his money."

126 Further, Barton's affidavit included allegations that the three corporations were primarily operated as instrumentalities to defraud Utah subcontractors. In particular, the affidavit asserted that Norris incorporated the companies in Pennsylvania, "to take advantage of Pennsylvania's confession of judgment[ ] law" and to avoid "the necessity of notifying [the subcontractors] or serving them with any papers." The affidavit therefore provided a substantial basis to believe that Norris's businesses were permeated with fraud. |

T27 Since Barton's affidavit provided probable cause to believe that the corporations were fraudulent through and through, every transaction undertaken by one of them was potential evidence of communications fraud. Bentley, 825 F.2d at 1110. It was therefore impossible, before the execution of the warrant, to "separate those business records that would be evidence of the fraud from those that would not." Kail, 804 F.2d at 445. A more particular description of the documents to be seized could not be provided because "fraud [allegedly] permeated the entire business operation." Offices Known As 50 State Distrib. Co., 708 F.2d at 1874. Accordingly, the "all records" search warrant issued by the magistrate is constitutional under the "permeated with fraud" doctrine.

III. WE DECLINE TO ADDRESS NOR-RISS STATE - CONSTITUTIONAL ARGUMENT BECAUSE HE INADEQUATELY BRIEFED THAT CLAIM

128 Norris further asserts that Article I, Section 14 of the Utah Constitution, Utah's counterpart to the Fourth Amendment, forbids the "all records" search warrant issued by the magistrate. We decline to address this argument because Norris provides us with no substantive reason for construing Article I, Section 14 of the Utah Constitution, which is nearly identical to the Fourth Amendment, as affording him greater protection than the Fourth Amendment. See State v: Davis, 972 P.2d 388, 392 (Utah 1998) (refusing to discuss defendant's state constitutional argument because he failed to support it with any substantive analysis that warranted distinct analytical treatment); see also State v. Real Property at 688 E. 640 N., 2000 UT 17, ¶5, 994 P.2d 1254 (deciding only the appellant's federal constitutional claim because she failed to support her state constitutional argument with any substantive analysis). As we have consistently declared, we are not a " 'depository in which [a] party may dump the burden of argument and research." " State v. Bishop, 753 P.2d 489, 450 (Utah 1988) (quoting Williamson v. Opsahl, 92 Ill.App.3d 1087, 48 Ill.Dec. 510, 416 N.E.2d 783, 784 (1981)). Thus, we decline to review Norris's state constitutional claim.

CONCLUSION

1 29 Although we affirm the district court's holding that the magistrate had probable cause to issue the search warrant, we conclude that the district court erred in finding the "all records" search warrant was over-broad under the United States Constitution. The "all records" warrant complied with the Fourth Amendment's particularity requirement because Barton's affidavit demonstrated there was probable cause to believe that Norris's businesses were permeated with fraud. We therefore reverse the district court's overbreadth ruling and remand the case for further proceedings consistent with this opinion.

80 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS concur in Justice DURRANT's opinion.

      . Pennsylvania's confession of judgment provision permits a creditor, upon the default of a debtor, to appear in court and obtain a judgment without notifying the debtor of the legal proceeding. See Pa. R. Civ. P. 2952.

      . To be precise, we' review the district court's assessment of the magistrate's probable cause determination for correctness and ask whether the district court erred in concluding that the magistrate had a substantial basis for her probable cause determination. The analysis is the same, however, when our review is focused directly on the magistrate's probable cause determination from the outset. See State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993). Under either approach, we must ascertain whether the magistrate had a substantial basis for her probable cause determination. Id. ‘

      . We conduct the second half of our probable cause inquiry in Part II(B) of our analysis. See Part II(B) infra.

      . - Norris also contends that Barton's affidavit did not support the magistrate's probable cause finding because it contained stale and expunged information. With respect to his staleness argument, Norris asserts that the information provided to Barton was outdated and that Barton did not specify precisely when the fraudulent acts were commitied. Both of Norris's staleness contentions lack merit. Staleness issues arise where "so much time has passed that there is no longer probable cause to believe that the evidence is still at the targeted locale." Thurman, 846 P.2d at 1260. The affidavit in this case, couched as it was in present-tense language, described ongoing criminal activity and "clearly refute(d] any contention that it was based on stale information." State v. Anderton, 668 , P.2d 1258, 1261 (Utah 1983). Further, where a commonsense reading of an affidavit presents a substantial basis for the magistrate to conclude that the criminal activity is continuous, specific dates are unnecessary to sustain the validity of the professed facts. See id. at 1260-61.
      Norris's assertion that the affidavit erroneously included expunged information is similarly unavailing. . Although Norris contends that statements from his two former employees should have been barred because the two employees testified at a hearing that was later expunged, we disagree. An expungement order prevents persons "who have access to the sealed record, or whose testimony is bolstered by reference to itl, from] 'recreat{ing]' the record in proceedings subsequent to the expungement." Ambus v. Utah State Bd. of Educ., 800 P.2d 811, 813 (UViah 1990). Such an order does not preclude witnesses who have knowledge independent of the expunged record from testifying on a subsequent occasion. Cf. id. at 813-14 (noting that "although court records are sealed, employers or licensing agencies may make independent inquiry into the acts of those who are or will be employed" as long as the information is acquired from a source independent of the expunged record).
      The record presented to us includes no evidence that the statements' made by either employee were derived from, or bolstered by, the expunged record. Rather, the statements provided by the two employees appear to be based entirely on the experiences they had while working for Norris. Accordingly, we uphold the district court's conclusion that the affidavit did not include expunged information.

      . We find nothing in the record that suggests Norris's former employees received immunity or any other benefit in return for their testimony.

      . The Fourth Amendment of the United States Constitution reads as follows:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. -
      U.S. Const. amend. IV. (emphasis added).

      . An affidavit can satisfy the showing required for an "all records" search warrant by either explicitly stating that there is probable cause that the business to be searched is permeated with fraud and tendering evidence supportive of that assertion or by implicitly establishing such probable cause. See Oloyede, 982 F.2d ai 141.

      . - Norris relies on two cases from the Tenth Circuit to support his contention that the "all records" search warrant issued by the magistrate violates the Fourth Amendment's particularity requirement. We conclude that both cases are distinguishable from the case at bar. The reasoning of Voss v. Bergsgaard, 774 F.2d 402, 406 (10th Cir.1985), is not applicable to the present circumstance because the Tenth Circuit expressly nofed that fraud did not pervade every aspect of the business to be searched. Id. Instead, the government's affidavit pointed only to .evidence of tax fraud. Id. Moreover, the court explicitly stated that there are situations where an all records search warrant would be appropriate. Id.
      United States v. Leary, $46 F.2d 592 (10th Cir.1988), is likewise inapposite. In that case, the court discussed the "perméated with fraud" doctrine merely in passing, noting only that the business at issue was not permeated with fraud. Id. at 602 n. 17. Thus, neither Voss nor Leary contradicts our holding.

      . The State also asserts that the district court erred in granting Norris's motion to suppress because the officers conducting the search relied on the warrant and acted in good faith. We find it unnecessary to discuss the good faith exception to the exclusionary rule, however, because we conclude that the "all records" search warrant was valid. _

      . Article I, Section 14 of the Uiah Constitution provides as follows:
      The right of the people to be secure in their persons, houses, papers and effects against un-feasonablg searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.
      Utah Const. art. L, § 14.