INTRODUCTION

Pursuant to the provisions of Rule 14.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2021, ch. 1, app. 1-A, the following is the Annual Report of grievances and complaints received and processed for 2023 by the Professional Responsibility Commission and the Office of the General Counsel of the Oklahoma Bar Association.

THE PROFESSIONAL RESPONSIBILITY COMMISSION

The Professional Responsibility Commission is composed of seven persons – five lawyer and two nonlawyer members. The lawyer members are nominated by the president of the Oklahoma Bar Association subject to the approval of the Board of Governors. The two nonlawyer members are appointed by the speaker of the Oklahoma House of Representatives and the president pro tempore of the Oklahoma Senate, respectively. Members serve for a term of three years, with a maximum of two terms. Terms expire Dec. 31 at the conclusion of the three-year term.

Lawyer members serving on the Commission all or part of 2023 were Chairperson Karen A. Henson, Shawnee; Vice Chairperson Matthew Beese, Broken Arrow; Alissa Preble Hutter, Norman; Heather Burrage, Durant; and Jennifer M. Castillo, Oklahoma City. The nonlawyer members were John Thompson, Oklahoma City, and James W. Chappel, Norman. Commission members serve without compensation but are reimbursed for actual travel expenses.

RESPONSIBILITIES

The Professional Responsibility Commission considers and investigates any alleged ground for discipline, or alleged incapacity, of any lawyer called to its attention, or upon its own motion, and takes such action as deemed appropriate to effectuate the purposes of the Rules Governing Disciplinary Proceedings. Under the supervision of the Commission, the Office of the General Counsel investigates all matters involving alleged misconduct or incapacity of any lawyer called to the attention of the General Counsel by grievance or otherwise and reports to the Commission the results of investigations made by or at the direction of the General Counsel. The Commission then determines the disposition of grievances or directs the instituting of a formal complaint for alleged misconduct or personal incapacity of a lawyer. The Office of the General Counsel prosecutes all proceedings under the Rules Governing Disciplinary Proceedings, supervises the investigative process and represents the Oklahoma Bar Association in all reinstatement proceedings.

OBA MEMBERSHIP STATISTICS

The membership of the Oklahoma Bar Association as of Dec. 31, 2023, was 18,734 lawyers. The total number of members included 12,001 males and 6,733 females.

VOLUME OF GRIEVANCES

During 2023, the Office of the General Counsel received 215 formal grievances involving 158 lawyers and 909 informal grievances involving 714 lawyers. In total, 1,124 grievances were received against 872 lawyers. The total number of grievances and lawyers receiving the same differs because some lawyers received multiple grievances. In addition, the Office of the General Counsel processed 165 items of general correspondence, which is mail not considered to be a grievance against a lawyer.

On Jan. 1, 2023, 189 formal grievances were carried over from the previous year. The carryover accounted for a total caseload of 404 formal investigations pending throughout 2023. Of those grievances, 215 investigations were completed by the Office of the General Counsel and presented for review to the Professional Responsibility Commission. Therefore, 189 formal grievances remained pending as of Dec. 31, 2023.

The time required for investigating and concluding each grievance varies depending on the seriousness and complexity of the allegations and the availability of witnesses and documents. The Commission requires the Office of the General Counsel to report monthly on all informal and formal grievances received and all investigations completed and ready for disposition by the Commission. In addition, the Commission receives a monthly statistical report on the pending caseload. The Board of Governors is advised statistically each month of the actions taken by the Commission.

DISCIPLINE IMPOSED BY THE PROFESSIONAL RESPONSIBILITY COMMISSION

Formal Charges. During 2023, the Professional Responsibility Commission voted on the filing of formal disciplinary charges against 15 lawyers involving 40 formal grievances. In addition, the Commission also oversaw the investigation of 16 Rule 7, RGDP formal disciplinary charges filed with the chief justice of the Oklahoma Supreme Court.

Private Reprimands. Pursuant to Rule 5.3(c), RGDP, the Professional Responsibility Commission has the authority to impose private reprimands, with the consent of the lawyer, in matters of less serious misconduct or if mitigating factors reduce the sanction to be imposed. During 2023, the Commission administered private reprimands to 21 lawyers involving 25 formal grievances.

Letters of Admonition. During 2023, the Professional Responsibility Commission voted to issue letters of admonition to 22 lawyers involving 23 formal grievances cautioning that the conduct of the lawyer was dangerously close to a violation of a disciplinary rule.

 Dismissals. The Professional Responsibility Commission dismissed 13 grievances that had been received but not concluded due to the resignation of the lawyer pending disciplinary proceedings, a continuing lengthy suspension of the respondent lawyer, death of the respondent lawyer or disbarment of the respondent lawyer. The remainder were dismissed where the investigation could not substantiate the allegations by clear and convincing evidence.

Diversion Program. The Professional Responsibility Commission may also refer respondent lawyers to the Discipline Diversion Program, where remedial measures are taken to ensure that any deficiency in the representation of a client does not occur in the future. During 2023, the Commission referred 21 lawyers to the Discipline Diversion Program for conduct involving 29 grievances.

The Discipline Diversion Program is tailored to the individual circumstances of the participating lawyer and the misconduct alleged. Oversight of the program is by the OBA Ethics Counsel, with the OBA Management Assistance Program staff involved in programming. Program options include Trust Account School, Professional Responsibility/Ethics School, Law Office Management Training, Communication and Client Relationship Skills and Professionalism in the Practice of Law. In 2023, instructional courses were taught by OBA General Counsel Gina Hendryx, OBA Ethics Counsel Richard D. Stevens, OBA Management Assistance Program Director Jim Calloway and OBA Practice Management Advisor Julie Bays.

As a result of the trust account overdraft reporting notifications, the Office of the General Counsel is able to monitor when lawyers encounter difficulty with the management of their IOLTA accounts. Upon recommendation of the Office of the General Counsel, the Commission may place those individuals in a tailored program designed to instruct on basic trust accounting procedures. This course is also available to the OBA general membership as a continuing legal education course.

SURVEY OF GRIEVANCES

To better inform the Oklahoma Supreme Court, the bar and the public of the nature of the grievances received, the number of lawyers receiving grievances and the practice areas of misconduct involved, the following information is presented.

Formal and informal grievances were received against 872 lawyers. Therefore, fewer than 5% of the lawyers licensed to practice law in Oklahoma received a grievance in 2023.

A breakdown of the types of misconduct alleged in the 215 formal grievances opened by the Office of the General Counsel in 2023 is as follows:

Of the 215 formal grievances, the area of practice is as follows:

The number of years in practice of the 158 lawyers receiving formal grievances is as follows:

The largest number of grievances received were against lawyers who have been in practice for 26 years or more. The age of lawyers with allegations of rule violations filed before the Oklahoma Supreme Court in 2023 is depicted below.

DISCIPLINE IMPOSED BY THE OKLAHOMA SUPREME COURT

In 2023, discipline was imposed by the Oklahoma Supreme Court in 41 disciplinary cases. The sanctions are as follows:

There were 11 discipline cases filed and pending as of Jan. 1, 2023. During 2023, 36 new formal complaints were filed for a total of 47 cases before the Oklahoma Supreme Court during 2023. On Dec. 31, 2023, 20 cases remained open and active before the Oklahoma Supreme Court.

REINSTATEMENTS

On Jan. 1, 2023, there were three petitions for reinstatement pending before the Professional Responsibility Tribunal and two petitions for reinstatement pending before the Oklahoma Supreme Court. There were six new petitions for reinstatement filed in 2023. In 2023, the Oklahoma Supreme Court granted five reinstatements, and two were dismissed by the petitioner. On Dec. 31, 2023, there were four petitions for reinstatement pending before the Professional Responsibility Tribunal.

UNAUTHORIZED PRACTICE OF LAW

Rule 5.1(b), RGDP, authorizes the Office of the General Counsel to investigate allegations of the unauthorized practice of law (UPL) by nonlawyers, suspended lawyers and disbarred lawyers. Rule 5.5, ORPC, regulates the unauthorized practice of law by lawyers and prohibits lawyers from assisting others in doing so.

Requests for Investigation. In 2023, the Office of the General Counsel received 14 complaints for investigation of the unauthorized practice of law. The Office of the General Counsel fielded many additional inquiries regarding the unauthorized practice of law that are not reflected in this summary.

Practice Areas. Allegations of the unauthorized practice of law encompass various areas of law. In previous years, most unauthorized practice of law complaints involved nonlawyers or paralegals handling family matters, but that changed in 2023, with 29% of the UPL complaints involving litigation matters.

Referral Sources. Requests for investigations of the unauthorized practice of law come from multiple sources. In 2023, the Office of the General Counsel received one-half of UPL complaints from lawyers.

Respondents. In 2023, most requests for investigation into allegations of the unauthorized practice of law related to paralegals. For purposes of this summary, the category “paralegal” refers to an individual who advertises as a paralegal and performs various legal tasks for their customers, including legal document preparation.

Enforcement. In 2023, the Office of the General Counsel took formal action in three matters. Formal action included issuing cease and desist letters, initiating formal investigations through the lawyer discipline process, referring a case to an appropriate state and/or federal enforcement agency or filing the appropriate district court action. Six matters were closed after corrective action was taken, and the remainder of the matters remain under investigation.

CLIENTS’ SECURITY FUND

The Clients’ Security Fund was established in 1965 by Court Rules of the Oklahoma Supreme Court. The fund is administered by the Clients’ Security Fund Committee, which is comprised of 17 members, 14 lawyer members and three nonlawyers, who are appointed in staggered three-year terms by the OBA president with approval from the Board of Governors. In 2023, the committee was chaired by lawyer member Micheal Salem, Norman. Chairman Salem has served as chair of the Clients’ Security Fund Committee since 2006. The fund establishes a means of reimbursement to clients for financial losses occasioned by dishonest acts of lawyers. It is also intended to protect the reputation of lawyers in general from the consequences of the dishonest acts of a very few. The Board of Governors budgets and appropriates $175,000 each year to the Clients’ Security Fund for payment of approved claims.

In years when the approved amount exceeds the amount available, the amount approved for each claimant will be reduced in proportion on a pro rata basis until the total amount paid for all claims in that year is equal to the amount available for disbursement. The Office of the General Counsel reviews, investigates and presents the claims to the committee. In 2023, the Office of the General Counsel presented 163 claims to the committee. The committee approved 90 claims, denied 66 claims and continued seven claims into the following year for further investigation. In 2023, the Clients’ Security Fund paid a total of $210,784.10 on 90 approved claims.

CIVIL ACTIONS (NON-DISCIPLINE) INVOLVING THE OBA

The Office of the General Counsel represented the Oklahoma Bar Association in several civil (non-discipline) matters during 2023. Several cases carried forward into 2024. The following is a summary of all civil actions against or involving the Oklahoma Bar Association in 2023:

• Alberta Rose Jones v. Eric Bayat, et al., Lincoln County District Court No. CJ-2021-21. Rose filed a complaint on March 5, 2021. Rose named 10 defendants and "Does 1-25," including the Oklahoma Bar Association and an assistant general counsel. Jones alleged that the Oklahoma Bar Association failed to achieve her son's legal goals. To date, the Oklahoma Bar Association has not been served. This matter was transferred to Kay County District Judge Turner.
• Alberta Rose Jones v. Eric Bayat, et al., Lincoln County District Court No. CJ-2022-27. Rose filed a petition on Feb. 25, 2022, against 11 named defendants and 10 "Doe" defendants. The petition alleged the Oklahoma Bar Association ignored Open Records Act requests and her dissatisfaction with the resolution of bar grievances. The Oklahoma Bar Association filed a motion to dismiss on March 23, 2022. On April 11, 2022, this matter was transferred to Payne County District Judge Corley. This matter is set for the disposition docket on May 2, 2024.
• Rigsby v. Burkhulter, et al., United States District Court for the Eastern District of Oklahoma, Case No. CIV-22-287. Rigsby filed a complaint against multiple defendants, including the Oklahoma Bar Association, on Oct. 7, 2022. Although the facts are unclear, Rigsby appears to contend that the Oklahoma Bar Association failed to enjoin his public defenders from violating his "rights" and would not appoint counsel for him. The Oklahoma Bar Association has not been served. On Nov. 28, 2022, the court dismissed Rigsby's action without prejudice for the failure to pay the entire filing and administrative fees as directed by the court. Rigsby appealed multiple decisions of the court. Currently, 10th Circuit Court of Appeals Case No. 24-7000 is pending.
• Rigsby v. Burkhulter, et al., United States Court of Appeals for the 10th Circuit, Case No. 22-7058. On Nov. 7, 2022, Rigsby filed an interlocutory appeal of an order denying Rigsby leave to proceed in forma pauperis issued in United States District Court for the Eastern District of Oklahoma Case No. CIV-22-287. On Dec. 6, 2022, the court directed Rigsby to pay the district court's full filing fee by Dec. 27, 2022, or the appeal will be dismissed without further notice. On Jan. 12, 2023, this matter was dismissed for failure to prosecute.
• Rigsby v. Burkhulter, et al., United States Court of Appeals for the 10th Circuit, Case No. 22-7063. On Dec. 14, 2022, Rigsby filed a second appeal of an order denying his motion to "bring issue to the attention of the Court" and judgment dismissing the action without prejudice for failure to pay the entire filing and administrative fee, from United States District Court for the Eastern District of Oklahoma Case No. CIV-22-287. This appeal was dismissed Feb. 7, 2023, for failure to prosecute.
• Rigsby v. Burkhulter, et al., United States Court of Appeals for the 10th Circuit., Case No. 24-7000. On Jan. 4, 2024, Rigsby filed his third appeal of an order in CIV-22-287 regarding the court's denial of his "motion to show new truths in case" and his "motion to show that it's not withstanding to close case." This matter is pending.
• Winningham v. Gina L. Hendryx, Oklahoma County Case No. CJ-2023-3789. On July 7, 2023, the plaintiff filed an action for declaratory relief. The Oklahoma Bar Association moved to dismiss the matter. After hearing arguments, this matter was dismissed Nov. 2, 2023. Winningham has since filed post-trial motions, and the Oklahoma Bar Association has responded. This matter is pending.
• Mitchell v. Hill et al., United States District Court for the Western District of Oklahoma, Case No. CIV-23-686. The plaintiff filed a 42 USC §1983 action against the Oklahoma Bar Association and several other defendants on Aug. 4, 2023. The Oklahoma Bar Association was not served. This matter is pending.
• Mitchell v. Oklahoma Bar Association, Oklahoma Supreme Court MA-121671. The petitioner filed a petition for mandamus on Oct. 12, 2023. No application to assume original jurisdiction was filed. The Oklahoma Bar Association was not served but received notice of this suit from the court on Oct. 27, 2023. The petitioner's application was denied on Dec. 11, 2023.
• Denise Hudson v. OCHA Office and Administration, United States District Court for the Western District of Oklahoma, Case No. 23-703. Hudson filed suit Aug. 11, 2023, against multiple defendants for unknown conduct. The Oklahoma Bar Association was not served. The court dismissed this matter without prejudice on Oct. 19, 2023.
• BlueviewTam Farm, LLC, et al., v. Jones Brown, et al., Tulsa County Case No. CJ-2023-3033. Ronald Durbin filed a class action suit on behalf of multiple plaintiffs alleging a variety of causes of actions against the Oklahoma Bar Association and two staff members. The Oklahoma Bar Association defendants have not been served. This matter is pending.

ATTORNEY SUPPORT SERVICES

Out-of-State Attorney Registration. In 2023, the Office of the General Counsel processed 686 new applications and 662 renewal applications submitted by out-of-state attorneys registering to participate in a proceeding before an Oklahoma Court or Tribunal. Out-of-state attorneys appearing pro bono to represent criminal indigent defendants or on behalf of persons who otherwise would qualify for representation under the guidelines of the Legal Services Corporation may request a waiver of the application fee. Certificates of Compliance are issued after confirmation of the application information, the applicant’s good standing in their licensing jurisdiction and payment of applicable fees. All obtained and verified information is submitted to the Oklahoma Court or Tribunal as an exhibit to a “motion to admit.”

Certificates of Good Standing. In 2023, the Office of the General Counsel prepared 1,331 Certificates of Good Standing/Disciplinary History at the request of Oklahoma Bar Association members.

ETHICS AND EDUCATION

During 2023, lawyers in the General Counsel’s Office presented more than 60 hours of continuing legal education programs to county bar association meetings, lawyer practice groups, OBA programs, all three state law schools and various legal organizations. In these sessions, disciplinary and investigative procedures, case law and ethical standards within the profession were discussed. These efforts direct lawyers to a better understanding of their ethical requirements and the disciplinary process and inform the public of the efforts of the Oklahoma Bar Association to regulate the conduct of its members. The Office of the General Counsel worked with lawyer groups to assist with the presentation of programming via in-person presentations and videoconferencing platforms.

The lawyers, investigators and support staff of the General Counsel’s Office also attended continuing education programs in an effort to increase their own skills and knowledge in attorney discipline. These included trainings by the Oklahoma Bar Association, the National Organization of Bar Counsel (NOBC) and the Organization of Bar Investigators (OBI).

RESPECTFULLY SUBMITTED Feb. 2, 2024, on behalf of the Professional Responsibility Commission and the Office of the General Counsel of the Oklahoma Bar Association.

 

Gina Hendryx, General Counsel

Oklahoma Bar Association