Wednesday, June 29, 2022
An attorney's conviction and post-conviction efforts to maintain a law practice drew disbarment from the Oklahoma Supreme Court
On an evening in May 2016, Silvernail shot Ryan DeJesus outside an Oklahoma City bar. The altercation occurred around closing time after DeJesus invited Ms. Anderson, a woman he had met at the bar, to leave with him. Several people were involved in discussions about who was leaving with whom and where they planned to go. Silvernail, who had been socializing with Anderson and her friends in the bar that night, testified at trial that he did not think Anderson was sober enough to make an informed decision about whether to leave with DeJesus.
At one point during these parking-lot negotiations, Silvernail walked to his own vehicle, retrieved a pistol, and chambered a round so the gun would be immediately ready to fire. He then returned and declared that Anderson would not be leaving with DeJesus. He poked DeJesus in the chest and raised the pistol. DeJesus responded by pushing Silvernail, who fell to the ground. Silvernail then shot DeJesus in the groin, hitting an artery. Despite many surgeries, DeJesus lost most of his right leg.
His defense at trial failed
The trial court did not instruct Silvernail's jury on the doctrine of defense of another, finding no evidence that Silvernail reasonably believed Anderson herself was in imminent personal danger. The court did, however, instruct the jury on the doctrine of self-defense. The jury rejected the self-defense theory and convicted Silvernail as charged. Nevertheless, it only recommended a sentence of two and one-half years imprisonment and a $10,000 fine. The maximum prison sentence available was life imprisonment. 21 O.S.2011, § 652
He then sought to maintain a post-conviction law practice while incarcerated
...when Silvernail's conduct while awaiting sentencing is viewed as a whole, it is clear that he was not acting in his clients' best interests, and that he placed his own financial motives first. The obstacles to effective representation from a jail cell should be obvious. As an inmate, Silvernail was unable to confer with clients confidentially. He was unable to communicate freely with prosecutors or other opposing counsel about his clients' cases. He was obviously unable to appear in court on his clients' behalf. His ability to access legal resources, a computer, or even his own clients' files, was hampered to say the least. Finally, practicing law from a jail cell arguably gives the appearance of impropriety. These conditions would have prompted a reasonable attorney to take a different tack.
In fact, as the OBA points out, the possibility that Silvernail could be taken into custody -- severely curtailing his ability to serve his clients -- arose as early as June 2016, when criminal charges against him were initially filed. And yet, for more than three years, Silvernail apparently took no steps to prepare for that contingency. Before the Tribunal, Silvernail's brother, who had no experience in law office management, testified to the confusion in trying to take control of the practice with no advance notice. And again, from Silvernail's jail conversations, it is clear that he was seeking continuances for his own benefit, not his clients'. He did not even want his stand-in attorneys to have access to his clients' files, for fear that he would lose income.
Silvernail has stipulated that the OBA's allegation of a conflict of interest was proven by clear and convincing evidence. Still, he maintains he acted in good faith to take care of his clients' outstanding matters. We cannot agree. While there may be no evidence of malfeasance with regard to any particular client, Silvernail placed himself in a situation where he was necessarily unable to provide prompt and competent representation to any of his clients -- and he had plenty of time to avoid that outcome. Rules 1.1, 1.3, RPC. Silvernail's failure to close his practice earlier shows that he was more interested in cash flow than client care. At the very least, Silvernail's attempts to maintain his law practice from jail violated his ethical duty to provide prompt, competent, and conflict-free representation to his clients. Rule 1.7(a)(2), RPC.
The fact that Silvernail was so quick to bring a chamber-loaded firearm into the circumstances here, gives us grave concerns about his fitness to practice law. We also are concerned about how allowing Silvernail to continue to practice would reflect on the Oklahoma Bar. The fact that a person charged with a crime happens to be an attorney is never lost in a news story -- and usually finds its way into the headline. As we observed in State ex rel. OBA v. Hayes, 2011 OK 71, ¶ 14, 257 P.3d 1000, 1004, "[a]n attorney involved in a public altercation will undoubtedly be interpreted negatively towards the legal profession" (emphasis in original). Silvernail's conduct in jail pending sentencing also evinced a lack of good judgment, giving new meaning to the term "jailhouse lawyer," and further embarrassing the Bar in the process.
Both parties are content with the Tribunal's recommendation that Silvernail be suspended from the practice of law for two years and one day. We disagree. Silvernail resorted to deadly force in circumstances that did not justify such a response. He then placed his own financial interests above the interests of his clients, by trying to keep his practice on life support while he awaited sentencing. We believe Silvernail's behavior demonstrates his inability to provide the kind of judgment expected of a lawyer.
Disbarred. (Mike Frisch)