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State v. McMillen

Supreme Court of Oklahoma

March 28, 2017

STATE OF OKLAHOMA EX. REL. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
MARY E. MCMILLEN, Respondent.

         THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

         ORIGINAL PROCEEDING FOR RULE 7 SUMMARY DISCIPLINE

         ¶0 This summary disciplinary proceeding was brought pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2011 Ch. 1, App. 5. It is based upon respondent's plea agreements to charges of driving under the influence of alcohol, transporting an open container of beer, driving with a suspended license, and driving under the influence causing an accident. This Court issued an Order of Immediate Interim Suspension of respondent's license to practice law in the State of Oklahoma after the plea agreements were finalized. After waiving a hearing before the Professional Responsibility Tribunal, the respondent now seeks to lift her suspension and have final discipline determined. We lift the interim suspension, publicly censure the respondent, and reinstate her license subject to certain probationary conditions.

          Debbie Maddox, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

          Sheila Naifeh, Tulsa, Oklahoma, for Respondent.

          KAUGER, J.

         FACTS AND PROCEDURAL HISTORY

         ¶1 On December 5, 2016, the Oklahoma Bar Association (Bar) filed a Notice of Deferred Sentence with the Court. [1] The notice concerned the respondent, Mary E. McMillen (McMillen/respondent) who lives in Tahlequah, Oklahoma, and who has been a Bar member since September of 2012.

         ¶2 According to the information that the District Attorney of Cherokee County filed on October 2, 2015, McMillen was stopped on September 25, 2015, for driving under the influence of alcohol, transporting an open container of beer, and driving with a suspended license. On February 22, 2016, McMillen was arrested in Wagoner County for driving under the influence after causing an automobile accident in which the other driver was seriously injured. The Wagoner County charges were filed on May 19, 2016.

         ¶3 The respondent pled no contest to both charges and entered plea agreements in both counties in November of 2016. It appears that the charges were reduced to misdemeanors in both counties and that the respondent received deferred sentences of approximately eighteen months to run concurrently. [2] On December 12, 2016, the Court, pursuant to Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings, entered an immediate interim suspension of the respondent. [3]

         ¶4 The Court also gave McMillen an opportunity to show why the interim suspension should be set aside and allowed the Bar to respond. On December 20, 2016, the respondent filed an Affidavit of Compliance with the Court stating that, pursuant to the Court's interim suspension and to Rule 9.1 of the Rules Governing Disciplinary Proceeding, [4] she advised her clients to seek new legal representation. [5] Essentially, McMillen affirmed that she was "taking proactive steps to formally withdraw from all cases pending with any tribunal." She enclosed a list of the clients who were notified and in which counties their cases were filed.

         ¶5 On January 6, 2017, and February 2, 2017, the respondent requested that her interim suspension be set aside. The Bar responded on January 17, 2017. Additionally, some of the exhibits/documents which were filed, were filed under seal because they contain medical and other health care records. On February 2, 2017, McMillen notified the Court that she expressly waived her right to a hearing before the Professional Responsibility Tribunal.

         ¶6 No final discipline has been imposed and the respondent has been suspended by the Court since December 12, 2016. Respondent now requests that the Court set aside her interim suspension, and impose no further discipline. The reason? McMillen "self suspended" for six months about a year ago, sought treatment, and continues to seek treatment for her addiction issues since then as well. In support of her argument, she includes evidence of her self-suspension which the Bar acknowledges did actually occur.

         ¶7 The respondent, after being turned down for inpatient residential substance abuse treatment through the Oklahoma Department of Mental Health and Abuse System (ODMHSAS) in March of 2016, began outpatient treatment which continues to this day. McMillen has been consistent in participation and treatment and her counselor does not assess that the respondent would be a danger to her clients or unable to provide effective service to them. Her treatment has included considering the welfare of clients at the forefront of her ...


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