The Office of the General Counsel of the Oklahoma Bar Association has certain statutorily enumerated powers and duties regarding disciplinary actions. Included among those powers and duties are investigating alleged lawyer misconduct or incapacity, reporting to the Professional Responsibility Commission the results of those investigations, making recommendations to the Commission concerning the filing of a formal complaint, and prosecuting or participating in all disciplinary proceedings.
The exercise of the powers begins when the Office of the General Counsel receives a complaint or grievance. This grievance is usually received from the client of an attorney and the investigative process begins. Said grievance must be in writing (Rule 5.1, RGDP) and is reviewed by one of four attorneys in the Office of the General Counsel who makes an initial discretionary determination consistent with the Oklahoma Rules of Professional Conduct, 5 O.S. ch. 1, app. 3-A (Supp. 1997), adopted by the Oklahoma Supreme Court and effective July 1, 1988. Any alleged attorney misconduct is evaluated with the following standard:
Are there facts alleged in the grievance letter which, if proven true, would constitute a violation of the Rules of Professional Responsibility?
If the grievance alleges no facts which, if proven true, would constitute a violation of the Oklahoma Rules of Professional Conduct, the letter is treated as an informal grievance (IC) and the attorney complained against receives a copy of the letter for information only and as a courtesy (Rule 5.2, RGDP).
If, however, the grievance letter is found to contain allegations which, if proven true, would constitute a violation of the Rules, the grievance is designated as a formal grievance (DC) and the attorney is sent a copy of the grievance and asked to respond in writing to the allegations as required by Rule 5.2, RGDP.
Many grievances received include complaints from clients complaining about a lack of communication, in that their lawyer will not return phone calls or respond to letters or requests for information concerning the progress of their case. Rule 1.4(a), Oklahoma Rules of Professional Conduct, states that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. In order to deal more effectively with this problem, the Office of the General Counsel, in October, 1987, created a "two-week letter." This letter requests that the attorney communicate with the client concerning the status of the case and send the General Counsel a copy of that communication. This procedure has proven to be an effective method of allowing a problem to be resolved on an informal basis and is appreciated by both attorneys and their clients.
Once a grievance has been opened for formal investigation, the attorney has responded, and the complaining party has received a copy of the attorney's response, the matter is investigated fully by the staff of the Office of the General Counsel. A thorough and careful investigation is conducted by an investigator under the supervision of one of the attorneys in the Office of the General Counsel. Each investigation attempts to determine what actually did or did not happen in the representation of the client, and whether or not there has actually been a violation of the Rules of Professional Conduct. When the representation has included litigation, the docket sheets and appropriate pleadings are obtained and any possible witnesses, including judges and opposing counsel, are interviewed. Under the supervision of the Professional Responsibility Commission, all efforts are being made to complete investigations by the staff of the Office of the General Counsel within 90 days of the receipt of the grievance by the Oklahoma Bar Association.
Upon completion of the investigation, the entire file is reviewed and a recommendation is developed by the Office of the General Counsel as to whether the matter should be dismissed by the Professional Responsibility Commission or recommended for further action by the Commission.
The Professional Responsibility Commission, which constitutes the second level of the attorney grievance process, is a seven (7) member body comprised of five (5) attorneys and two (2) lay persons. The attorneys must be in good standing, are appointed for three-year rotating terms by the President of the Oklahoma Bar Association, and are subject to the approval of the Board of Governors. One lay-member is appointed by the Speaker of the Oklahoma State House of Representatives and the other is appointed by the President Pro Tempore of the Oklahoma State Senate.
All activities of the Office of the General Counsel, including investigation, prosecution of attorney discipline, criminal summary proceedings, reinstatements, resignations, and suspension of attorneys for personal incapacity to practice law are performed under the supervision of the Professional Responsibility Commission. The Oklahoma Supreme Court articulated the functions of the Professional Responsibility Commission in Tweedy v. Oklahoma Bar Association, 624 P.2d 1049 (Okla. 1981). The headnote describes the Professional Responsibility Commission of the Oklahoma Bar Association as an "organ" of the Supreme Court, aiding it in controlling the regulation of the practice of law and licensing, ethics, and discipline of legal practitioners.
The results of the investigation are presented to the Commission and those results are presented as fairly as possible with each grievance being discussed fully and completely. The staff of the Office of the General Counsel is asked questions by Commission members as the Commission seeks to determine the facts.
Once the presentation is completed, the Commission makes one of several decisions regarding the outcome of the grievance. First, the Professional Responsibility Commission can recommend that matters be dismissed for a number of reasons: a) the investigation failed to substantiate the allegations; b) the grievance was without merit; c) the grievance was the result of poor communication and the matter has been resolved; d) the investigation disclosed no misconduct by the attorney; e) the investigation resulted in the grievance being withdrawn by the complainant; f) the investigation disclosed this was a fee dispute only; or g) the investigation was terminated because of lack of cooperation by complainant. If the Professional Responsibility Commission dismisses the case, both the complainant and the respondent are informed that the factual circumstances did not warrant further investigation or disciplinary action.
Second, the Commission can direct that a letter of admonishment be written to the respondent attorney by the General Counsel. This letter of admonishment is merely a warning telling the attorney that the conduct came dangerously close to violating the Rules of Professional Conduct. The letter does not constitute discipline for the purposes of a disciplinary record.
Third, the Professional Responsibility Commission can, in lieu of filing formal charges, offer a respondent attorney a private reprimand before the Commission. In the event the respondent attorney accepts the private reprimand, the respondent waives any right to a formal hearing regarding unethical conduct. Those private reprimands are read to the respondent attorney before the Professional Responsibility Commission. They are considered a part of the attorney's disciplinary record; however, they are confidential unless used to enhance the discipline imposed in a subsequent and public disciplinary proceeding against that attorney.
Finally, the Commission can vote the filing of formal charges with the Supreme Court. If formal charges are voted by the Professional Responsibility Commission, a complaint is filed with the Supreme Court consistent with Rule 6, RGDP. The grievance has now made its way to the third level of the grievance process.
The General Counsel's Office drafts the charges, but they are filed at the direction, and over the signature, of the Chairman of the Professional Responsibility Commission. The General Counsel's Office then becomes the prosecutor in the disciplinary proceeding.
A three-person Trial Panel drawn from the Professional Responsibility Tribunal is appointed to be the trier of fact for the Supreme Court in all attorney discipline prosecutions and reinstatement hearings. The Professional Responsibility Tribunal is a 21-person body made up of fourteen (14) attorneys and seven (7) lay members. The attorneys are appointed by the President of the Oklahoma Bar Association subject to the approval of the Board of Governors on rotating three-year terms. The lay people are appointed by the Governor of the State of Oklahoma.
Formal charges filed against attorneys remain confidential until twenty (20) days after the filing of the formal Complaint with the Supreme Court or such a time as the attorney answers the formal Complaint. All pleadings and proceedings which follow are also of public record.
Trials in attorney discipline cases are required to be held within 30 to 60 days after the filing of a formal Complaint. Thereby, the attorney will not have the formal charges pending for too long a period of time. The hearings are conducted according to the Rules of Civil Procedure, and the alleged attorney misconduct must be proven by the Oklahoma Bar Association Office of the General Counsel by clear and convincing evidence.
One member of the Professional Responsibility Tribunal is designated the Presiding Master. Pretrial conferences are conducted in many matters to streamline presentation of the case. The Presiding Master, in consultation with the other members of the Trial Panel, makes evidentiary rulings during the hearings.
At the end of the hearing, the Professional Responsibility Tribunal has 30 days within which to prepare a Trial Panel Report and file it with the Supreme Court. The Report contains the following:
- Findings of Fact as to each of the issues addressed;
- Conclusions of Law regarding the conduct of the attorney; and
- Recommendations to the Supreme Court regarding discipline, if any, to be imposed.
This report must be filed with the Clerk of the Supreme Court together with a transcript of the hearing and any exhibits which are made a part of the record at the hearing.
After the Professional Responsibility Tribunal has filed its report with the Clerk of the Supreme Court, the matter is decided by the Oklahoma Supreme Court. The Supreme Court has original and exclusive jurisdiction in all attorney discipline and reinstatement matters.
Routinely, the Oklahoma Supreme Court orders briefs be filed. Typically, the complainant's brief is due 20 days after the receipt of the Professional Responsibility Tribunal report. The respondent's brief is due approximately 20 days later, and a reply brief may be filed within 10 days thereafter.
The Oklahoma Supreme Court then considers the entire record of the attorney discipline matter. The Court does not function as a reviewing tribunal of the Trial Panel's recommendations, but instead sits in exercise of its exclusive original jurisdiction in matters involving licensing of members of the Bar. State ex rel. Oklahoma Bar Association v. Samara, 683 P.2d 979 (Okla. 1984); State ex rel. Oklahoma Bar Association v. Raskin, 642 P.2d 262 (Okla. 1982). The Oklahoma Supreme Court does not have to accept any of the recommendations of the Professional Responsibility Tribunal nor the findings of fact or conclusions of law, as they are merely advisory in nature.
After its consideration, the Supreme Court can: 1) dismiss the proceedings; 2) impose discipline; or 3) take such action as deemed appropriate, including suspending or deferring the imposition of discipline pending completion of certain conditions.
In the event that the Supreme Court does decide to discipline an attorney, the forms of discipline available to the Court are to:
- Suspend or defer the imposition of discipline subject to the fulfillment of specified conditions;
- Issue a private reprimand to the attorney. The reprimand is delivered by the Supreme Court to the lawyer in person. At that time, the Court specifies the facts and the conduct which the Court found objectionable;
- Issue a public censure. The court issues an opinion which is published in the Oklahoma Bar Journal.
- Suspend an attorney from the practice of law for a definite term or until further order of the Court; or
- Disbar an attorney. The attorney may apply for reinstatement to the Bar Association after five (5) years from the effective date of the order of disbarment.
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