STATE ex rel. OKLAHOMA BAR ASSOCIATION v. OLIVER
369 P.3d 1074, 2016 OK 37, 2016 Okla. LEXIS 37 (2016)
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Rule of Law:
Public censure is the appropriate reciprocal discipline for an attorney who fails to report discipline from another jurisdiction, as required by Rule 7.7 of the Rules Governing Disciplinary Proceedings, when the failure to report is due to ignorance of the rule rather than a deliberate attempt at concealment.
Facts:
- James Edward Oliver, an attorney practicing since 1967 with no prior disciplinary history, specialized in bankruptcy law.
- Oliver experienced significant difficulties with the electronic pleading and filing requirements of the U.S. Bankruptcy Court for the Western District of Oklahoma due to his lack of computer proficiency.
- After repeated filing errors, a bankruptcy judge suspended Oliver and assigned him 'homework' requiring him to refile nine documents correctly.
- The judge's order contained conflicting instructions: it required Oliver to complete the homework 'without assistance from any other person,' but also separately required him to retain a qualified bankruptcy attorney to assist him in his future practice.
- Interpreting the order as requiring him to seek competent help, Oliver hired another bankruptcy attorney to review his completed homework documents before submission.
- The attorney hired by Oliver contacted the judge's law clerk to clarify the scope of permissible assistance.
- Oliver failed to notify the Oklahoma Bar Association of his suspensions from the bankruptcy court.
Procedural Posture:
- The United States Bankruptcy Court for the Western District of Oklahoma first suspended James Edward Oliver for 30 days on October 29, 2014.
- The Bankruptcy Court again suspended Oliver, this time for 60 days, on January 14, 2015.
- On June 15, 2015, the Bankruptcy Court permanently suspended Oliver from practicing before it.
- Oliver failed to report these disciplinary actions to the General Counsel of the Oklahoma Bar Association (OBA) within the required 20 days.
- The OBA initiated a reciprocal discipline proceeding against Oliver pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings.
- A hearing was conducted before a trial panel of the OBA's Professional Responsibility Tribunal.
- The trial panel found that Oliver's failure to report was not a deliberate attempt at concealment and recommended to the Oklahoma Supreme Court that he receive a public reprimand.
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Issue:
Is public censure the appropriate discipline for an attorney who fails to report a disciplinary suspension from another jurisdiction as required by Rule 7.7, when the failure to report was due to ignorance of the rule and not a deliberate attempt to conceal the suspension?
Opinions:
Majority - Winchester, J.
Yes, public censure is the appropriate discipline under these circumstances. The court found no clear and convincing evidence that Oliver intended to disobey the bankruptcy court's order; rather, he reasonably attempted to comply with conflicting directives by seeking assistance. The underlying issue was technological incompetence, not a deficiency in substantive legal knowledge, which does not disqualify him from practicing in Oklahoma state courts. Crucially, his failure to report the discipline to the Bar Association was a result of ignorance of the rule, not a deliberate effort at concealment. Citing precedent from State ex rel. Okla. Bar Ass'n v. Gentry, where there is no evidence of deliberate concealment, public censure is an appropriate sanction, especially considering mitigating factors like Oliver's long, unblemished career.
Dissenting - Combs, V.C.J.
No, a suspension for two years and one day is the appropriate discipline. The majority mischaracterizes Oliver's conduct as mere 'technological illiteracy.' The record reveals a pattern of incompetency, unwillingness to improve, disrespect for court staff, and a direct violation of a court order prohibiting assistance on his assigned homework. Oliver also displayed a profound lack of candor with the attorney he hired. His multiple failures—incompetence, violating a court order, lack of candor, and failure to notify the Bar and his clients—demonstrate he is unfit to practice, and a public censure is insufficient to protect the public and the integrity of the profession.
Analysis:
This decision reinforces the principle that an attorney's mental state is a critical factor in determining the severity of discipline. It distinguishes between an unintentional rule violation stemming from ignorance and a deliberate act of concealment, treating the former far more leniently. The case also suggests that discipline imposed by a specialized court (like a federal bankruptcy court) for technical or procedural failings may not be given full reciprocal weight if the underlying conduct does not reflect a lack of core legal competence or moral character relevant to general state practice. This holding provides guidance for state bars in tailoring reciprocal discipline to the specific facts and intent behind an attorney's misconduct.
