Wednesday, January 20, 2021

Not Fade Away

The Oklahoma Supreme Court has publicly censured a prosecuting attorney for facilitating unauthorized practice during a period of short staffing

Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division.

Five individuals appeared in court without a license on the attorney's watch per this example

Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments.

Mitigation

Respondent has practiced law for approximately 20 years and has not previously been the subject of any formal discipline. Respondent has been removed from her supervisory role, and since her misconduct came to light, the District Attorney's office has implemented various safeguards to ensure that unlicensed individuals do not engage in the practice of law in the future. The office has instituted a color-coded badge system that clearly identifies which individuals are licensed to practice law, and that system has been communicated to the courts in Tulsa County. The office has abandoned the designation of "Provisional Assistant District Attorney" for new hires who have not yet been admitted to practice. Finally, the  office has updated their handbook for legal interns to more clearly identify the scope of tasks that unlicensed individuals are allowed to perform.

For purposes of mitigation, we must also note that responsibility for the misconduct in question does not lie exclusively with Respondent. While she was the primary supervisor of her division, the office was generally supervised by First Assistant District Attorney Erik Grayless and District Attorney Steve Kunzweiler. During his testimony before the tribunal, Grayless acknowledged his responsibility for the five individuals in question but stated that he had little involvement in their daily activities. While we recognize the need for delegation in large offices like that in the Tulsa County District Attorney's office, Respondent was a supervisor who was nonetheless subject to supervision herself. Furthermore, each of the five unlicensed individuals were at the time of the alleged misconduct seeking admission to the Oklahoma Bar. As such, they must have--or should have--understood on some level the significance of admission to the Bar, namely that one cannot practice law prior to admission, absent special permission from this Court.

COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring:

I concur in the imposition of discipline for Ms. Jack's violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and the Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A. I write to emphasize the complicity of others within the district attorney's office for Tulsa County, specifically First Assistant District Attorney Erik Grayless. Ms. Jack was not the only supervisor responsible for the actions of the five individuals who intentionally violated the rules authorizing the practice of law in the State of Oklahoma. Mr. Grayless was in charge of the intern program in the office. Mr. Grayless was the person listed as the supervising attorney on any licensed legal interns paperwork. Ms. Jack relied on Grayless and the "interns" to know what they could or could not do. She did not receive any paperwork confirming the employees licensing status but only relied upon her First Assistant Grayless and the Human Resources director. Ms. Jack's first mistake was relying on her supervisor, Mr. Grayless. For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair. From this record, Mr. Grayless should bear blame as well. Ultimately the buck must stop with the District Attorney himself, Steve Kunzweiler; none of the leadership of the Tulsa County District Attorney's office should be allowed to escape blame.

The five individuals practicing without a license, Kelly Sweeney, Randall Young, Christopher Deane, Michael Shouse and Johnnie James, each have begun their legal careers in Oklahoma by committing fraud upon the courts they appeared before. As to each of them, this fraud cannot be ignored, allowed to fade away or be forgotten.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/01/throughout-the-summer-and-fall-of-2018-tulsa-county-district-attorney-steve-kunzweiler-was-engaged-in-a-contested-reelection.html

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