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OBA General Counsel

Articles by the General Counsel

Grievances and How to Avoid them

By Gina Hendryx, General Counsel

Upon becoming general counsel of the OBA, I was intrigued to learn which practice areas of law were receiving the most grievances and what types of complaints were routinely being lodged against attorneys. It was not surprising to learn that 43 percent of the complaints in 2008 were in matters relating to criminal law and family law representations. And, this was not an aberration.


Frequently Asked Ethics Questions

By Gina Hendryx and Travis Pickens

It is probably a good sign that ethics issues count for many of the questions posed to members of the OBA staff. Lawyers are people who like to follow the rules, and it is one of our goals to make it easier for lawyers to follow them, especially when the rules involve the Rules of Professional Conduct and the supervision of the Oklahoma Supreme Court. We have selected some of the questions most often asked (or the most interesting) and provided an advisory response. Practitioners should keep in mind that the ultimate authority in ethics issues is the Oklahoma Supreme Court; everyone else is simply providing the best guidance they can. Any ethics question can be addressed to Ethics Counsel by telephone at (405) 416-7055 or by e-mail at travisp@okbar.org.


Ethical Issues with Employee Acts or Omissions

By Gina Hendryx, General Counsel

A supervisory lawyer must take reasonable steps to ensure the compliance of firm lawyers with ethical standards.  Oklahoma Rule of Professional Conduct 5.1 requires partners and supervisory lawyers make reasonable efforts to assure that other lawyers in the firm conform to the Rules.  Requirements upon supervisory lawyers include:


Domestic Relations and Criminal Law Continue to Receive Most Grievances

By Gina Hendryx, General Counsel

The 2009 Annual Report of the Professional Responsibility Commission (PRC) and the Professional Responsibility Tribunal (PRT) was filed with the Oklahoma Supreme Court by the Office of the General Counsel on Feb. 5, 2010. The annual report reflects grievances and complaints lodged against attorneys that were received and processed in 2009 by the general counsel.


Contingency Fee Agreement Checklist

By Gina Hendryx, General Counsel

The new year invariably brings with it the resolutions to do better, do more, do less or a combination of the three. Many practitioners resolve to review and update forms, contracts and procedures to start off the new year. For those who employ the contingency fee in their practices, your inspection should confirm that your fee agreements contain the following. If not, some redrafting might be in order.


Unauthorized Practice of Law

By Gina Hendryx, General Counsel

Every jurisdiction prohibits the unauthorized practice of law (UPL). In Oklahoma, the Supreme Court has original and exclusive jurisdiction over all matters involving admission to practice law in this state and to discipline for cause any other “persons, corporations, partnerships or other entities engaged in the unauthorized practice of law.” Rule 1.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch.1, App. 1-A. The General Counsel of the Oklahoma Bar Association is charged with the responsibility of investigating and prosecuting allegations of UPL.


A Breakdown of Out-of-State Attorney Registration

By Gina Hendryx, General Counsel

Since 2005, out-of-state attorneys wishing to appear in an Oklahoma forum must first register with the Oklahoma Bar Association. This registration requirement for attorneys from other jurisdictions can be found in the Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. Ch.1, App. 1, Art. II. Those rules state that the attorney may appear in an action or proceeding only upon:


Judicial Disqualification

By Gina Hendryx, General Counsel

The Code of Judicial Conduct states that a judge should disqualify in a proceeding where his or her impartiality might reasonably be questioned. Examples in the code include instances where:


Trust Account Overdraft Notification What We Know So Far

By Gina Hendryx, General Counsel

When the Oklahoma Rules of Professional Conduct (ORPC) were amended in 2008, a provision to Rule 1.15 was added requiring lawyers to maintain their trust accounts in financial institutions which agree to notify the Office of the General Counsel in the event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. Trust Account Overdraft Notification (TAON) agreements were mailed to approximately 220 banks throughout the state. Most have signed and returned the forms acknowledging they will advise the general counsel’s office directly if there is an overdraft in a trust account.


File Retention Guidelines

By Gina Hendryx, General Counsel

A commonly asked question is how long should I maintain a closed file? Unfortunately, there is no hard and fast answer to this question. Most state ethics committees agree that lawyers are not obligated to keep client files indefinitely. However, most jurisdictions concur that “clients and former clients reasonably expect from their lawyers that valuable and useful information in the lawyer’s files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed.” ABA Standing Committee on Ethics and Professional Responsibility, Informal Op. 1384 (1977).


Ethical Considerations in Pro Bono Public Service Representations

By Gina Hendryx, General Counsel

By volunteering to provide legal services as an “Oklahoma Lawyer for America’s Heroes,” you are participating in a time-honored tradition of assisting those most worthy with access to legal information and legal representation. Whether you give of your time and talent through short-term limited contact or lengthy advanced representation, there are ethical implications to consider. The following will review basic scope of representation and potential conflict snares to review with any representation.


Lawyers’ Duty to Supervise Non-Lawyer Assistants

By Gina Hendryx, General Counsel

At some time in most forms of legal practice, the lawyer will employ the assistance of a non-lawyer. These persons include the traditional secretary and bookkeeper, but more and more lawyers are employing the services of non-traditional aides including engineers, nurses, computer specialists and lobbyists. Regardless of title, non-lawyers are not bound by the ethical rules that apply to attorneys. Therefore, the rules require lawyers to make reasonable efforts to ensure that the conduct of non-lawyer employees or independent contractors is compatible with the professional obligations of the lawyer.


Annual Reports Summarize Discipline Action

By Gina Hendryx, General Counsel

In this issue of the Oklahoma Bar Journal, you will find the 2011 annual reports of the Professional Responsibility Tribunal (PRT) and the Professional Responsibility Commission (PRC). The PRT is the panel of masters who conduct hearings on formal complaints filed against lawyers and on applications for reinstatement to the practice of law. The panel consists of 21 members, 14 of whom are active members in good standing of the Oklahoma Bar Association (OBA) and seven members who are nonlawyers. When a formal complaint or application for reinstatement is filed, the presiding master of the PRT selects three members from the panel to preside over the discipline hearing. At the conclusion of the hearing, the trial panel files a written report with the Oklahoma Supreme Court which includes findings of fact on all pertinent issues and conclusions of law and a recommendation as to discipline. In 2011, the PRT conducted a total of 19 hearings including 13 discipline matters and six reinstatement proceedings.


You Don’t Have to Clock Out at Five

By Gina Hendryx, General Counsel

The practice of law is a profession. The privilege to do so is earned through study, examination and licensure. Unlike other employment, your personal behavior can negatively impact the opportunity to pursue your profession. The following is a survey of cases, primarily from Oklahoma, that review personal choices which have impacted upon the professional’s continued practice of law. 


Out-of-State Attorneys Reminded to Register

By Gina Hendryx, General Counsel

Oklahoma, like the majority of jurisdictions, requires out-of-state attorneys who wish to practice in a state tribunal to register with the Oklahoma Bar Association. The chart above depicts the number of out-of-state attorneys who have done so for the past three years. In 2011, 557 new applications were received from out-of-state attorneys seeking to practice before an Oklahoma tribunal. This was slightly down from 2010, but nearly the same for 2009. Furthermore, renewals steadily increased over the three-year span.


Client Communication: New Approaches to Old Problems

By Gina Hendryx, General Counsel

The Office of the General Counsel receives approximately 1,500 complaints annually alleging improper behavior by an Oklahoma licensed attorney. In 2011, the primary concern in 43 percent of the complaints was neglect of the client or the matter. And, this is not an anomaly. Year after year, the chief complaint received is that the lawyer is not being responsive to the client. Historically, clients complained of delay in the return of phone calls, not being informed of court dates, or kept up to date on the status of their matter. These concerns have not abated. However, with the increased methods of communication including social media, these concerns have morphed beyond the simple, “My lawyer won’t return my phone call.” Complaints now include neglect via Facebook, email, texting, Twitter and FaceTime.