“Bad boys, bad boys,

Whatcha gonna do?

Whatcha gonna do when they come for you?”[1]

 

The scales of justice and the Oklahoma Bar Association's return address adorn the envelope in the office mail stack. Seeing this envelope may cause internal alarm bells to ring for some. Maybe this communication was not expected. Maybe it was anticipated with dread. And maybe neither alarm nor dread is warranted. Opportunities may open for help and improvement, or the attorney could be vindicated from an ill-founded complaint. Although it may not feel so, the purpose of Oklahoma’s attorney discipline process is not to punish lawyers. Its primary purpose is to protect the public.

This purpose is evident from the OBA website. Information on how to file a grievance against an attorney, a grievance form and general information about the grievance process are readily accessible. Reviewing this information is helpful to all attorneys, whether or not they are directly involved in a disciplinary proceeding. Neglect is the number one reason for grievances. This knowledge could alert attorneys to avoid neglect of client matters. Only a very small percentage of attorneys who undergo discipline are suspended or disbarred.

This article will provide an overview of the disciplinary authority and powers of the OBA over its attorneys, the grievance process related to allegations of attorney misconduct, the requirements to respond to a grievance as well as the range of discipline that can be imposed and services that can be offered to attorneys.

PROTECTION OF THE PUBLIC

Protecting the public is paramount, as indicated by continuation of a disciplinary process, even in cases where the person filing the grievance neglects to sign the grievance form or is unwilling to prosecute the charge.[2] Abatement of the disciplinary process is at the sole discretion of the OBA Professional Responsibility Commission (commission).[3] The process is not concluded by settlement or compromise of the dispute between the grievant and the lawyer or by a lawyer’s restitution to a client. Pending criminal or civil litigation or administrative proceedings will not defer or abate grievance handling because allegations are substantially similar, absent a good-cause determination.[4]

PRIVILEGED AND CONFIDENTIAL, TO AN EXTENT

The privacy of attorneys involved in the disciplinary process is protected through certain phases of the process. Matters and the oral and written statements about those matters contained in grievances are privileged. Investigations conducted in the disciplinary process are confidential, with the results of investigations not to be made public unless authorized by the Oklahoma Supreme Court.[5]

The files and records in disciplinary investigations are kept private and confidential with enumerated exceptions. Exceptions include other bar associations’ exercise of disciplinary authority over attorneys, the OBA Clients’ Security Fund Committee and law enforcement agencies making a proper showing.[6]

The final disposition of a grievance, in which no formal complaint is filed with the Oklahoma Supreme Court, may be made public at the option of the attorney. Information regarding final dispositions of grievances is provided to persons filing grievances as well as respondents.[7] Formal complaint, an answer (if any), and other filings and proceedings filed with the clerk of the Oklahoma Supreme Court become a matter of public record if the process reaches the stage of formal proceedings and is in accordance with applicable rule.[8]

The proceedings brought under Rule 6 (Formal Proceedings Before Supreme Court and Professional Responsibility Tribunal), Rule 7 (Summary Disciplinary Proceedings Before Supreme Court), Rule 8 and Rule 11 of the Rules Governing Disciplinary Proceedings (RGDP) are filed with the clerk of the Oklahoma Supreme Court and are matters of public record.[9] Rules 8 and 11 deal with resignation and reinstatement, respectively, and those proceedings are not discussed in the article.

STRUCTURE OF DISCIPLINARY PROCESS

The RGDP[10] set forth the discipline process and requirements. The Oklahoma Supreme Court declares its “original and exclusive jurisdiction” and its “inherent power” in all matters involving admission to practice law in Oklahoma and “to discipline for cause any and all persons licensed to practice law in Oklahoma.”[11]

Discipline can be imposed for acts contrary to prescribed standards of conduct performed in an attorney’s professional capacity or otherwise.[12] Acts that would “reasonably be found to bring discredit upon the legal profession,” whether they be felonies, misdemeanors or a crime at all are grounds for discipline. The RGDP specifically provides that conviction in a criminal proceeding is not required to impose discipline. The Oklahoma Rules of Professional Conduct (ORPC) is the standard of conduct for all lawyers in Oklahoma.[13]

The tripartite system of attorney discipline is comprised of the OBA general counsel (GC), the commission and the Professional Responsibility Tribunal (the tribunal).[14] The Oklahoma Supreme Court retains ultimate authority over formal proceedings.

The GC is selected by the OBA Board of Governors with the concurrence of the commission.[15] For purposes of this article, the GC’s duties and powers include: investigating “all matters involving possible misconduct” called to the GC’s attention by complaint or otherwise; reporting the results of the investigations undertaken by, or under the direction of, the GC to the commission; making recommendations to the commission regarding formal complaints of alleged misconduct; and prosecuting all proceedings under the rules.[16] The GC has the power, with the commission’s approval, to employ and supervise staff needed to perform the GC’s duties.[17] As of this writing, the Office of the General Counsel employs six attorneys, five investigators and four support staff.

The commission has seven members, five of whom are active OBA members and lawyers in good standing appointed by the OBA president, subject to approval by the OBA Board of Governors. The other two are nonlawyers who reside in different congressional districts; one is appointed by the speaker of the Oklahoma House of Representatives and the other by the president pro tempore of the Oklahoma Senate.[18] All commission members serve three-year terms and may not serve for more than two terms.[19] Four commissioners constitute a quorum; so long as a quorum is present, the affirmative vote of a majority of those present suffices for commission action.[20] Annually, the commission elects a chairman and a vice chairman to serve one-year terms.[21]

The powers and duties of the commission include:

1) considering and investigating any alleged ground for discipline of any lawyer called to its attention or upon its own motion and taking such action appropriate to effectuate purposes of the RGDP;

2) holding hearings, administering oaths or affirmations, receiving testimony and other evidence and issuing and serving or causing to be served subpoenas requiring testimony or production of books, records, papers, documents or other tangible evidence in the course of its investigations;

3) enforcing compliance with its directions or orders, maintaining order in its sessions and, in the event of contemptuous refusal to obey its orders, certifying such matters to the chief justice of the Oklahoma Supreme Court; and

4) requiring lawyers and other persons to respond or give testimony in connection with commission investigations.[22]

The third head of the disciplinary tripartite is the tribunal, a panel of masters comprised of 21 members – 14 of whom are active OBA members and lawyers in good standing and seven of whom are nonlawyers. The lawyer members are appointed by the OBA president, subject to approval of the OBA Board of Governors. The nonlawyer members are appointed by Oklahoma’s governor. Tribunal members serve three-year terms and may serve no more than two full terms.[23] The function of the tribunal is to conduct hearings on formal complaints filed against lawyers and on applications for reinstatement to the practice of law.[24] Annually, the tribunal elects a chief master and a vice chief master.[25]

To summarize, the GC investigates all matters involving alleged misconduct or incapacity and reports the results of investigations to the commission. The commission functions as a grand jury with oversight and direction of the GC, considers and investigates alleged grounds for discipline of lawyers and takes such action as it deems appropriate to effectuate the RGDP. The commission determines the disposition of grievances and may direct the filing of a formal complaint for alleged misconduct or personal incapacity of a lawyer. The tribunal conducts hearings on formal complaints determined by the commission or as directed by the Oklahoma Supreme Court.

ACTIVATION OF DISCIPLINARY PROCESS

The RGDP can be activated by a grievance or request as well as an awareness of the GC or the commission “brought to their attention by any means whatsoever” of the need for investigation. If the process is activated by grievance or request for an investigation, the same is required to be in writing and signed by the person who files the same.[26] The lawyer is required to be immediately notified of the receipt of a grievance and furnished a copy. Anonymous grievances do not suffice, as the identity of the complaining party is a relevant fact.[27] In matters without signed grievances, the GC must provide a recital of the relevant facts or allegations to the lawyer.[28]

DISCIPLINARY PROCEEDINGS

Following the preliminary investigation, the GC will do one of two things: 1) The GC will notify the grievant and the lawyer that the allegations are inadequate, incomplete or insufficient to warrant the commission’s further action; or 2) the GC will file and serve a copy of the grievance (or, in the absence of a grievance, a recital of the relevant facts or allegations) upon the lawyer.[29] The GC will make a report and recommendation on each grievance to the commission following the completion of the GC’s investigation or follow-up investigation requested by the commission.[30]

The commission, upon consideration of the GC’s report and recommendation and any further investigation deemed advisable, shall either:

1) direct that no formal disciplinary proceedings be commenced (the GC shall then notify the person filing the grievance that factual circumstances do not warrant further investigation or disciplinary action);

2) direct the immediate expungement of a grievance the commission finds to be wholly frivolous or without merit (upon such expungement, not to occur until 60 days’ notification to the grievant, the respondent attorney may treat the grievance as if it was never asserted);

3) direct that a letter of admonishment be written to the respondent attorney by the GC;

4) direct that no formal proceedings be instituted against the attorney conditioned upon the attorney’s acceptance of a private reprimand before the commission (a notice of time and place would inform the attorney to appear before the commission to receive the private reprimand – if the attorney fails to appear, the commission might consider the advisability of filing a formal complaint); or

5) direct the GC to file a formal written complaint with the Oklahoma Supreme Court within 30 days of the commission’s vote.

In addition to, or in lieu of, any of the above actions, the commission may direct the GC to refer the attorney’s name to the OBA Lawyers Helping Lawyers Assistance Program Committee. This referral would be made without reference to the source or subject matter of the complaint.[31] Such a referral would not delay disposition of the complaint absent good cause.

RESPONDENT ATTORNEY OBLIGATIONS

Attorneys cannot bring litigation or threaten to do so against a person who files a grievance by reason of the filing. Doing so is grounds in itself for discipline.[32]

The lawyer is required to make a written response to the grievance or the GC’s recital of relevant facts and allegations. The response is to contain a “full and fair disclosure” of all facts and circumstances that pertain to the alleged misconduct unless the lawyer indicates the refusal is predicated upon expressed constitutional grounds.[33] The lawyer is required to make specific and complete disclosure as to all material matters when called upon to answer or give testimony. The exception is if the lawyer personally states that a refusal to answer is on the grounds that the answer might disclose matters that are privileged or would tend to incriminate or show the lawyer guilty of an act or offense that would be grounds for discipline.[34]

Deliberate misrepresentation in the response to a grievance is grounds for discipline. The failure to respond within 20 days after service of the grievance or recital is grounds for discipline.[35]

OBA members are required to provide a current address to the association and inform the association of any changes in address in accordance with the requirements of the Rules Creating and Controlling the Oklahoma Bar Association.[36] Compliance with this requirement by OBA members is critical. Proof of mailing to an attorney at that address is sufficient to prove service in the disciplinary process. Service of any and all correspondence, notice and any formal complaint may be made on a respondent lawyer, in person or by mail, directed to the attorney at the last address shown on the official roster of the OBA.[37]

In connection with a disciplinary matter, an attorney is forbidden from knowingly making a false statement of a material fact, failing to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly failing to respond to a lawful demand for information from a disciplinary matter; this rule does not require disclosure of information otherwise protected.[38]

A lawyer who knows that another lawyer has committed a violation of the ORPC that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects is required to inform the appropriate professional authority.[39]

Oklahoma lawyers are required to notify the GC whenever discipline for lawyer misconduct has been imposed in another jurisdiction within 20 days of the final order of discipline. Failure to do so is grounds for discipline.[40]

Although not presently required by the RGDP, an attorney may have an implicit duty to self-report a criminal conviction, at least to the extent that the conviction has been previously determined to demonstrate an unfitness to practice law.[41]

DISCIPLINE DIVERSION PROGRAM

If “lesser misconduct" is at issue, the GC can refer an attorney to the OBA’s Discipline Diversion Program. The GC must consider the following criteria before such a referral:

1) the nature of the misconduct alleged,

2) whether the alleged misconduct appears to be an isolated event,

3) whether participation in the diversionary program could benefit the respondent and

4) whether participation in the diversionary program might jeopardize protection of the public.

“Lesser misconduct” is misconduct that does not warrant a sanction restricting an attorney’s license to practice law. The RGDP does not define “lesser misconduct” as to what it is but rather to what it is not. Misconduct cannot be lesser misconduct if it involves the misappropriation of funds; if it resulted or is likely to result in substantial prejudice to a client or another person; if the respondent attorney has been publicly disciplined in the last three years; if it is of the same nature as misconduct for which the attorney has been disciplined in the last five years; if it involves dishonesty, deceit, fraud or misrepresentation by the attorney or if the misconduct constitutes a “serious crime,” which is described as any felony or lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.[42]

According to the ORPC, professional misconduct is committed in specified ways. These include: 1) violating the ORPC or knowingly assisting or inducing another to do so or doing so through the acts of another; 2) committing a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as a lawyer in other respects; 3) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 4) engaging in conduct that is prejudicial to the administration of justice.[43] Comment [2] to Rule 8.4 of the ORPC is informative and provides:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

If lesser misconduct can be established, allowing the GC to refer an attorney to the diversionary program, opportunities include law office management assistance, Lawyers Helping Lawyers, psychological counseling, continuing legal education programs and professional responsibility classes.[44] Prevention is the primary consideration of the OBA Discipline Diversion Program. It is designed to address complaints related to issues like disorganization, procrastination, poor office management or other personal challenges. The history, purposes, goals and offerings of the Discipline Diversion Program are the topic of an article that is accompanied by an anonymous personal account of an attorney who was referred to the program.[45]

Participation in the program is confidential, although the complaining party will be advised that the attorney has been referred to the diversionary program.[46] Attorneys have the right to not participate in the Discipline Diversion Program; the matter then proceeds as if no offer of referral was extended.[47] If the GC extends an offer of referral, the GC and the attorney negotiate a contract tailored to the attorney’s individual circumstances and the alleged misconduct. This contract will provide for oversight of all the conditions imposed on the diverted attorney. The attorney will bear the costs incurred by the diversion.[48] The diversion contract will acknowledge that a material violation of a term of the contract renders voidable the respondent attorney’s participation in the program and that an investigation of the alleged misconduct may proceed or that the matter may be forwarded to the commission for its consideration. A material violation is admissible as evidence in a subsequent disciplinary proceeding.[49]

After the parties enter into the contract, the disciplinary matter is held in abeyance. Upon successful completion of the contract, the disposition negotiated in the contract results.[50] This could be a dismissal, a letter of admonition or a private reprimand from the commission. The Discipline Diversion Program is designed to give attorneys an opportunity for rehabilitation instead of public retribution for transgressions. Participation in the program can be considered by the commission in future allegations of misconduct.

RULE 6: FORMAL PROCEEDINGS OF MISCONDUCT BEFORE THE SUPREME COURT AND TRIBUNAL

At the direction of the commission, formal proceedings involving misconduct are initiated by a formal complaint in a Rule 6 proceeding. The complaint is prepared by the GC, approved by the commission, signed by the commission’s chairman and filed with the chief justice of the Oklahoma Supreme Court. The complaint sets forth the specific facts of the alleged misconduct. If prior conduct that resulted in discipline or evidence from prior investigations is relied upon to enhance discipline, such prior acts or misconduct must be stated in the complaint.[51]

At the chief justice’s direction, the clerk shall notify the tribunal’s chief master and the OBA president of the complaint.[52] The respondent has 20 days after the complaint is mailed to file an answer with the chief justice. The respondent cannot challenge the complaint with a demurrer or motion.[53] The attorney may include in the answer a request for accelerated disposition; thereafter, the entire proceedings shall be concluded by the tribunal and the court without appreciable delay. If the attorney fails to answer, the charges shall be deemed admitted. Evidence is required to be submitted to determine the discipline to be imposed.[54]

The formal complaint and any answer submitted by the attorney are lodged with the clerk of the Supreme Court after the time to answer has expired.[55] The matter now becomes public record. Further filings in the matter are lodged with the clerk.

The GC may amend the complaint to add or delete allegations as permitted under the general rules of civil procedure. The respondent has the right to file an answer within 20 days of the amendment.[56]

If there is sufficient evidence of misconduct to show the attorney violated the ORPC and that the conduct “poses an immediate threat of substantial and irreparable public harm,” the GC, with concurrence of the commission chairperson, may file a verified complaint requesting interim suspension and other appropriate relief. This complaint is served personally or by certified mail with return receipt requested to the attorney.[57] If the attorney refuses to sign for or does not claim the certified mail, service may be effected by regular mail.[58]

After the verified complaint is filed, the Supreme Court may issue an order directing the respondent to object and show cause within 10 days why an order of interim suspension should not be entered. If the respondent timely objects, a hearing will be set at the earliest possible time either before the court or any justice who may rule on the matter, or the court may refer the matter to the tribunal for hearing and recommendations.[59]

The court’s order of interim suspension may include other orders to the respondent needed to preserve and recover client funds or property or that of others.[60] In this regard, the court may order the GC to initiate civil proceedings to accomplish these purposes.

Within 10 days after receiving notice of the complaint, the tribunal’s chief master shall select three members to serve as a trial panel of masters (the trial panel) to hear the complaint. Two members of the trial panel shall be lawyers and one a nonlawyer. The chief master will designate one of the two lawyer members of the trial panel to serve as presiding master of the hearing. Two of the three masters shall be a quorum for purposes of conducting hearings, ruling on and receiving evidence and rendering the trial panel’s findings of fact and conclusions of law.[61] The tribunal chief master will notify the respondent and the GC of the appointment and membership of the trial panel and the time and place for the hearing. The time of the hearing shall not be less than 30 days and not more than 60 days from the date of the trial panel appointment.[62] Extensions of the hearing date may be granted by the chief master for good cause.

The trial panel hearing, as well as Supreme Court disciplinary proceedings, are open to the public.[63] Trial panel proceedings are required to be stenographically recorded and transcribed unless the facts are stipulated.[64]

Depositions may be taken and read, and documents and things may be required to be produced for inspection and copying in the same manner as civil cases.[65]

Upon written request made 15 days before the hearing, the respondent – or any attorney for the respondent – shall be given the names and addresses of witnesses to be used by the prosecution. The GC, with the approval of the commission, has the authority to enter into stipulations of fact and law as to the complaint and a recommendation as to the discipline to be imposed.[66]

The trial panel has the power and authority to administer oaths and affirmations, hear evidence and compel, by subpoena, the attendance of witnesses and the production of books, records, papers, documents or other tangible evidence, either for deposition or trial.[67] Oaths or affirmations may be administered and subpoenas may be issued by the presiding master of the trial panel or by another person authorized by law.[68] The trial panel may take necessary steps to maintain order in its sessions. The trial panel may certify to the chief justice of the Supreme Court matters of contemptuous refusal to obey the trial panel’s lawful orders; the chief justice will then assign the case for trial and appropriate disposition to a judge of a district court. The GC shall act as prosecutor against the alleged contemnor.[69]

The respondent attorney may be called as a witness either by the prosecution or on their own behalf. The respondent may not, when called upon to give testimony, decline to answer any relevant question unless the respondent personally states the answer might disclose privileged matters or would tend to incriminate or show the respondent to be guilty of any act or offense that would be grounds for discipline.[70]

The rules of civil procedure govern the disciplinary proceedings and the reception of evidence so far as is practicable.[71] The charges against the respondent must be established by clear and convincing evidence, and at least two members of the trial panel must concur in the findings.[72]

The trial panel must file a written report containing its finding of fact on all pertinent issues and conclusions of law within 30 days after the hearing ends. The 30-day period can be extended only by the chief justice for good cause shown. The report should contain recommendations as to discipline if discipline is indicated and whether the costs of the investigation, record and proceedings should be imposed on the respondent. This report – accompanied by all pleadings, a transcript of the proceeding and all exhibits – is to be concurrently served on the GC, the respondent and the respondent’s attorney.[73]

The chief justice shall set dates for submission of any briefs for a date not to exceed 60 days after receiving the trial panel’s report. The Supreme Court is to consider these matters on an accelerated basis.[74] The Supreme Court may approve the trial panel’s findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action it chooses.[75] The clerk of the Supreme Court will give notice of the action or decision to the respondent, the tribunal, the GC and the commission.

When discipline results, the cost of the investigation, the record and the disciplinary proceedings are to be surcharged against the disciplined lawyer unless the Supreme Court remits them in whole or in part for good cause.[76] The disciplined lawyer must pay the costs within 90 days after the Supreme Court’s order becomes effective. Otherwise, the disciplined lawyer will be automatically suspended from the practice of law until further order of the court.

The GC and respondent must file any petitions for rehearing with the clerk of the Supreme Court within 20 days from the date of mailing of the Supreme Court’s decision or action.[77]

RULE 7: SUMMARY DISCIPLINARY PROCEEDINGS, CRIMINAL CONVICTION

Rule 7 proceedings relate to the discipline of lawyers who have been criminally convicted of crimes that demonstrate unfitness to practice law in any jurisdiction. A conviction resulting from a plea of guilty or nolo contendere or from a verdict after trial is subject to discipline regardless of a pending appeal.[78]

Oklahoma court clerks are required to transmit certified copies of the judgment and sentence on an attorney’s plea of guilty, order deferring judgment and sentence, indictment or information and judgment and sentence of conviction to the chief justice of the Supreme Court and the GC within five days after said conviction. The GC is also required to furnish these documents to the chief justice within five days of the GC’s receipt. These documents, regardless of whether from an Oklahoma jurisdiction or any other, shall constitute the charge. The documents are conclusive evidence of the commission of the crime upon which the judgment and sentence are based. They suffice as the basis for discipline.[79]

Upon receipt of the certified copies, the chief justice may order immediate suspension of the lawyer from the practice of law until further order. Alternatively, the court may direct the lawyer to file a statement to show cause why an order of immediate interim suspension should not be entered.[80] In the order of suspension, the court may direct the lawyer to file a statement to show cause why the order of suspension should be set aside. Upon good cause shown, and if in the interest of justice to do so, with due regard to maintaining the integrity of and confidence in the profession, the court may set aside its order of suspension. On the same basis and with the same considerations, the court may decline to enter an order of suspension if the lawyer shows good cause. If the lawyer does not, immediate suspension may occur.

The GC is required to inform the chief justice if the lawyer’s conviction becomes final without an appeal. The court may order the lawyer on a specified date to show cause in writing why a final order of discipline should not be made. The lawyer shall submit a verified written return and expressly state if a hearing is requested. In the interest of explaining their conduct or in mitigation, the lawyer may submit a brief and/or any evidence tending to mitigate the severity of discipline. The GC may respond by submission of a brief and/or any evidence supporting the recommendation of discipline.[81]

If the judgment of conviction is reversed on appeal, the disciplinary proceedings based on the conviction shall be immediately dismissed. If the conviction is affirmed on appeal or affirmed as modified and the lawyer remains convicted of a crime demonstrating unfitness to practice law, the above procedures apply to make final disposition of the matter.[82]

The commission is not precluded from initiating and conducting disciplinary proceedings identical to those in a criminal complaint, indictment or information, despite the pendency of the criminal action. Certified or authenticated copies of the record and transcripts of testimony and evidence from the criminal action are admissible in the disciplinary proceeding.[83]

DISCIPLINARY PROCEEDINGS IN OTHER JURISDICTIONS

The GC is required to transmit certified copies of final adjudications in disciplinary proceedings of lawyers who are disciplined in other jurisdictions within five days of receiving the documents. These documents shall constitute the charge and are prima facie evidence that the lawyer committed the acts described. The chief justice shall direct the lawyer to show cause, in writing, why a final order of discipline should not be made. The lawyer’s written response must be verified and expressly state whether a hearing is requested. To explain the conduct and for mitigation, the lawyer may submit a brief and/or evidence tending to mitigate the severity of discipline. The lawyer may submit a certified copy of any transcripts of the evidence taken during disciplinary proceedings in the other jurisdiction to support a claim that the finding of the other jurisdiction was not supported by evidence or does not furnish sufficient grounds for discipline in Oklahoma. The GC may respond by submission of a brief and/or any evidence supporting a recommendation of discipline. The Oklahoma Supreme Court may refer the matter for additional evidentiary hearings before the tribunal if deemed necessary.[84]

WILFUL NONPAYMENT OF CHILD SUPPORT

An attorney’s willful noncompliance with orders of support, as determined by a judicial finding, is also a basis of discipline as described in the RGDP.[85]

RESIGNATION

Lawyers can avoid disciplinary proceedings if they resign, pending disciplinary proceedings. However, doing so precludes seeking reinstatement for five years from the effective date of resignation.[86]

OBA DISCIPLINE IN 2023

The annual report of the commission for Jan. 1, 2023, to Dec. 31, 2023, is available on the OBA website and is titled “Annual Report of the Professional Responsibility Commission as Compiled by the Office of the General Counsel of the Oklahoma Bar Association,” filed with the Oklahoma Supreme Court on Feb. 2, 2024, SCBD #7624.

Of the 18,734 lawyers who were OBA members at the close of the reporting period, 1,124 grievances (215 formal grievances and 909 informal grievances) were received against 872 lawyers. Less than 5% of OBA membership received grievances. “Informal” grievances can usually be handled by correspondence. “Formal” grievances are those that require opening an investigation. An investigation may entail obtaining court documents, bank records, witness statements and usually interviews of both the grievant and the attorney. Some grievances are designated as formal upon receipt when the need to open an investigation is apparent. Others that initially indicate as informal can become formal, including when an attorney fails to timely respond.

The commission administered private reprimands to 21 lawyers involving 25 grievances and issued letters of admonition to 22 lawyers involving 23 grievances. The commission voted to file formal disciplinary charges against 15 lawyers involving 40 grievances and oversaw the investigation of 16 Rule 7 formal disciplinary charges filed with the chief justice. The commission dismissed 13 grievances, four due to not concluding the process due to death, disbarment, resignation and a lengthy suspension and the remainder due to the lack of clear and convincing evidence. The commission referred 21 lawyers involving 29 grievances to the Discipline Diversion Program.

The alleged misconduct in 2023 for the 215 formal grievances entailed 44% for neglect, 13% for personal behavior, 13% for fraud, 8% for trust account overdraft, 7% for conflict and other categories with far lower percentages. The practice areas comprising the 215 formal grievances entailed 23% in family law, 21% in criminal law, 13% in litigation, 10% in estate/probate law and other categories with far lower percentages. The largest number of grievances, at 39%, were against lawyers who have been in practice for 26 years or more. Interestingly, only 6% were against lawyers in practice for five years or fewer.

CONCLUSION

In a perfect professional world, no meritorious grievances would be filed because there would be no misconduct. But almost 5% of Oklahoma attorneys do draw grievances. So what is an attorney to do if that envelope comes? Should one arrive in the stack of mail, maintaining an appropriate perspective is useful. The 2023 story of the OBA discipline of its attorneys is enlightening. It is clear from that information that the OBA is not playing a “gotcha” game with its attorneys. Its goal is to protect the public, and responsible self-regulation of the legal profession is the formula to do so. If a grievance comes, it is highly likely, according to 2023 numbers, that it will be dealt with as an informal grievance without the need for an investigation. The OBA Discipline Diversion Program can be an off-ramp for lesser misconduct and affords services to allow correction and improvement. If numbers are informative, perhaps attorneys practicing in the areas of family and criminal law and working 26 years or more should be the most vigilant to avoid neglect of client matters. Attorneys who do receive grievances are best served by handling the grievance timely with full disclosure and in compliance with the RGDP.

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ABOUT THE AUTHOR

Martha Rupp Carter is a retired Tulsa County District Court judge.  She serves the Oklahoma Bar Association as chief master of the Professional Responsibility Tribunal and on the Board of Editors for the Oklahoma Bar Journal.

 

 

 

 

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ENDNOTES

[1] Chorus of “Bad Boys,” by Inner Circle. For purposes of this article, the term “boys” indicates humans with licenses to practice law in Oklahoma.

[2] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.5.

[3] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.5.

[4] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.6.

[5] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.4.

[6] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.8.

[7] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.7.

[8] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.1.

[9] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec.5.9.

[10] 5 O.S. 2021, ch. 1, app. 1-a.

[11] 5 O.S. 2021, ch. 1, app. 1-a, Rule 1, sec. 1.1.

[12] 5 O.S. 2021, ch. 1, app. 1-a, Rule 1, sec. 1.3.

[13] 5 O.S. 2021, ch. 1, app. 1-a, Rule 1, sec. 1.5.

[14] A well-researched and thorough history and background of this present-day structure is the subject of a previous OBJ article, “Attorney Discipline in Oklahoma: A Historical Perspective,” William R. Grimm, 2015 OBJ, vol. 86, no. 33.

[15] 5 O.S. 2021, ch. 1, app. 1-a, Rule 3, sec. 3.1.

[16] 5 O.S. 2021, ch. 1, app. 1-a, Rule 3, sec. 3.2.

[17] 5 O.S. 2021, ch. 1, app. 1-a, Rule 3, sec. 3.2 (a).

[18] 5 O.S. 2021, ch. 1, app. 1-a, Rule 2, sec. 2.1.

[19] 5 O.S. 2021, ch. 1, app. 1-a, Rule 2, sec. 2.1.

[20] 5 O.S. 2021, ch. 1, app. 1-a, Rule 2, sec. 2.6.

[21] 5 O.S. 2021, ch. 1, app. 1-a, Rule 2, sec. 2.2.

[22] 5 O.S. 2021, ch. 1, app. 1-a. Rule 2, sec. 2.8.

[23] 5 O.S. 2021, ch. 1, app. 1-a, Rule 4, sec. 4.1.

[24] 5 O.S. 2021, ch. 1, app. 1-a, Rule 4, sec. 4.5.

[25] 5 O.S. 2021, ch. 1, app. 1-a, Rule 4, sec. 4.2.

[26] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.1.

[27] State ex rel Oklahoma Bar Association v. Krug, 2004 OK 28, 92 P.3rd 67.

[28] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.2.

[29] Id.

[30] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.3.

[31] Id.

[32] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.4.

[33] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.2.

[34] 5 O.S. 2021, ch. 1, app. 1-a, Rule 2, sec. 2.8 (d).

[35] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.2.

[36] 5 O.S. 1921, ch. 1, app. 1-a, Rule 13, sec. 13.1.

[37] 5 O.S. 2021, art. II, sec. 1.

[38] 5 O.S. 2021, app. 3-a, Rule 8.1. The comment to OPRC 8.1 provides that the duty imposed by the rule applies to the attorney’s own discipline as well as that of others. Knowingly making a misrepresentation or omission is thus a separate professional offense. The comment further provides that the rule is subject to provisions of the Fifth Amendment to the U.S. Constitution and corresponding provisions of state constitutions. Reliance on this provision is required to be openly declared.

[39] 5 O.S. 1921, app. 3-1, Rule 8.3 (a); The comment to Rule 8.3 indicates “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

[40] 5 O.S. 1921, ch. 1, app. 1-a, Rule 7, sec. 7.7.

[41] State ex rel. Oklahoma Bar Association v. Reedy, 2023 OK 99; “A New Duty to Self-Report Certain Convictions,” Richard Stevens, 2024 OBJ, vol. 95, no. 2.

[42] 5 O.S. 1921, ch. 1, app. 1-a, Rule 5, sec. 5.1(c), (d).

[43] 5 O.S. 2021, app. 3-a, Rule 8.4 (a), (b), (c), (d).

[44] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.1(c).

[45] “The OBA’s Discipline Diversion Program,” William R. Grimm, 2011 OBJ, vol. 82, no. 33.

[46] 5 O.S. ch. 1, app. 1-a, Rule 5, sec. 5.1(i).

[47] 5 O.S. ch. 1, app. 1-a, Rule 5, sec. 5.1(h).

[48] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.1(e).

[49] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.1(f).

[50] 5 O.S. 2021, ch. 1, app. 1-a, Rule 5, sec. 5.1(j).

[51] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.1, 6.2.

[52] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.3.

[53] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.2A (4).

[54] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.4.

[55] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.1.

[56] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.5.

[57] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.2A(1).

[58] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.2A(a), and Rule 13, sec. 13.1.

[59] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.2A(2)(a)(b).

[60] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.2A(3)(a).

[61] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.6.

[62] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.7.

[63] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.9.

[64] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.10.

[65] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.8.

[66] Id.

[67] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.11(a).

[68] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.11(b).

[69] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.11(c).

[70] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.11(d).

[71] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.12(a).

[72] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.12(c).

[73] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.13.

[74] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.14.

[75] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.15.

[76] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.16.

[77] 5 O.S. 2021, ch. 1, app. 1-a, Rule 6, sec. 6.15(c).

[78] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.1.

[79] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.2; State ex rel. Oklahoma Bar Association v. Zannoti, 2014 OK 25, 330 P. 3rd 11.

[80] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.3.

[81] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.4.

[82] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.5 and 7.4.

[83] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.6.

[84] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.7.

[85] 5 O.S. 2021, ch. 1, app. 1-a, Rule 7, sec. 7.8, 7.9, 7.10.

[86] 5 O.S. 2021, ch. 1, app. 1-a, Rule 8, sec. 8.1.