Lawyers have generally had a limited duty to self-report ethics violations, but a recent Oklahoma Supreme Court case expands that duty. In State Ex Rel. Oklahoma Bar Association v. Reedy,[1] the court found an implicit duty to self-report in certain instances.

THE DUTY TO SELF-REPORT UNDER THE ORPC

In the Oklahoma Rules of Professional Conduct, there is no explicit duty to self-report violations of the ethics rules. ORPC 8.3 (a) provides:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Section (c) of 8.3 excepts confidential information from mandatory disclosure. Section (d) exempts information learned by lawyers working as OBA ethics counsel, an agent of lawyers or judges assistance programs or the OBA Management Assistance Program. Section (d) provides further:

Any such knowledge or evidence received by lawyers acting in such capacity shall enjoy the same confidence as information protected by the attorney-client privilege under applicable rule and Rule 1.6.

THE DUTY TO SELF-REPORT UNDER THE RGDP

Rule 7.7 of the Rules Governing Disciplinary Hearings contains the only explicit self-reporting provision for Oklahoma lawyers. Rule 7.7 (a) states:

It is the duty of a lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline.

The reason for the rule is that individual instances of lawyer misconduct in other jurisdictions may not be easily discovered by the OBA general counsel. This rule helps ensure that the Oklahoma Supreme Court may impose discipline upon Oklahoma lawyers who have committed violations in other jurisdictions.

REEDY – THE FACTS

In Reedy,[2] the respondent was a member of both the OBA and the Alabama State Bar. While traveling to Alabama in 2016, the respondent drove his truck into a bicyclist, causing the bicyclist’s death. The respondent was arrested after he failed a field sobriety test.

Shortly after his arrest, the respondent consulted the OBA ethics counsel about his duty to report. He was (rightly, I believe) told that he had no duty to report the incident to the OBA. He was also informed that he should seek counsel to represent him in the disciplinary matter.

In April 2017, the respondent was indicted in Alabama. In February or March 2018, the respondent attempted to resign from the Alabama State Bar. He later learned that he had been placed on voluntary inactive status. Later, in March of that year, the respondent pleaded guilty to manslaughter, a felony under Alabama law.

Subsequently, the respondent returned to work in Oklahoma for the Oklahoma Indigent Defense System. He had not disclosed the conviction to the OBA, the Alabama State Bar or OIDS. In 2022, the respondent’s conviction was reported to the OBA. OIDS found out about the conviction, and the respondent resigned. The respondent again contacted OBA ethics counsel and inquired about a duty to self-report. He was told (again, I believe, rightly) that he had no duty to self-report because no discipline was imposed in Alabama. The court ultimately suspended the respondent for two years and a day.

REEDY AND THE DUTY TO SELF-REPORT

At the Professional Responsibility Tribunal hearing, the OBA stipulated (again, rightly, I believe) that the respondent did not have a duty to report his conviction to the OBA. The court, in examining the facts, stated:

Rule 7.2 requires an Oklahoma court clerk to report lawyer convictions, but nowhere in Rule 7 is there express language requiring a lawyer to self-report that criminal charges have been filed or that the lawyer has actually been convicted.

However, there is existing authority to suggest that a lawyer has an implicit duty to self-report a criminal conviction, at least to the extent the conviction has been previously determined to demonstrate an unfitness to practice law. This implicit duty comes from at least three facets:

1. this Court controls and regulates the practice of law in Oklahoma and if we, as a licensing authority are not advised of criminal actions by the persons we regulate, we cannot fulfil our duties;
2. before admittance to the Oklahoma Bar, criminal histories are reviewed, which indicates the relevance of criminal conduct to the license to practice law; and
3. Attorneys admitted to practice law are officers of the court and judicial system.

The court continued, “To discover which types of convictions have been previously determined to demonstrate an unfitness to practice law, a lawyer need only look at our prior disciplinary cases for examples.”

The dissent, which would have disbarred the respondent, gave hope for greater clarity by saying, “The majority explained there was no express duty to self-report this conviction to the OBA, but this case provides the opportunity to support such a duty.”

This case expresses a new view of the duty to self-report. For the sake of clarity, I hope we may see this information in the form of a rule soon. In the meantime, any lawyer advising lawyers about discipline should be aware of the importance of this case.

 

Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.

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ENDNOTES

[1] 2023 OK 99.

[2] Supra.