Next, the court orders an investigation into your conversations with the CI after the trial has convened and determines you have violated state B’s lawyer ethics rules by issuing a final order to that account. Now that you face disciplinary action in state B, must you also disclose this information by reporting it to state A? And if so, when, to whom and by what means should the disclosure be made?
Alternatively, what if you are practicing law in the courts of the United States and receive a disciplinary sanction for lawyer misconduct? Do you still have a duty to self-report your lawyer misconduct to state A?
Theme
The central theme for this article is Oklahoma’s Rules Governing Disciplinary Proceedings (RGDP) 7.7(a), which revolves around lawyer misconduct received in other jurisdictions and the duty to self-report. This article takes a deeper look into a rule that is not tested on the bar exam, yet looms over every Oklahoma licensed attorney (reciprocity or not), and also has a time frame for compliance. If the time frame is not followed, it’s possible further discipline could be imposed on top of what is to be administered … thus, turning a bad situation worse.
Issue
The issue here is whether under Oklahoma law an Oklahoma licensed attorney also licensed and practicing law in another state or in the courts of the United States has a duty to report his or her violations of lawyer misconduct in a timely manner as adjudicated under a final order in another jurisdiction to the Oklahoma Supreme Court.
Rule
The short answer is yes. Under Oklahoma law, Rule 7.7(a) of the Rules Governing Disciplinary Proceedings states that, “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.” This is not a new rule. It was adopted Feb. 23, 1981, and took effect July 1, 1981.
Discussion
First, the Oklahoma Rules Governing Disciplinary Proceedings are the rules that apply procedurally when you, as a lawyer, have a grievance filed against you or have been found to have violated the Oklahoma Rules of Professional Conduct (ORPC). They also cover proceedings for the unauthorized practice of law. Discipline can range from disbarment, public censure and private reprimand, to suspensions and deferments depending on the severity of the misconduct. The Oklahoma Supreme Court determines the severity of the discipline. Your case may pass through an investigation at the Oklahoma Bar Association Office of the General Counsel and a hearing may be scheduled with the Professional Responsibility Tribunal (PRT). This begs the question, “Do I have a duty to abide by the Oklahoma RGDP when I am practicing law in state B or the federal courts?” Yes, a lawyer has a duty to abide by the RGDP while practicing in state B and the federal courts. This is because the RGDP is implicated by a lawyer’s violation of the ORPC.
ORPC 8.5(a) tells us, “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs … A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.” This means that while you’re covered under attorney ethics rules of state B, you are also held accountable under state A’s (Oklahoma’s) ethics rules.
The comments to ORPC 8.5 are persuasive. Comment 1 states, “Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule.” Comment 2 goes on to say, “A lawyer may be potentially subject to more than one set of rules of professional conduct … The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice.”
RGDP 1.3 tells us that a “conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.” In fact, any act that could bring discredit upon the legal profession is grounds for disciplinary action. RGDP 1.5 gives us the adoption by the Oklahoma Supreme Court of the Oklahoma Rules of Professional Conduct as the standard of professional conduct for its lawyers set on Feb. 23, 1981, effective as of July 1, 1981.
Other Jurisdictions
Next, let’s examine how a few states address the duty to self-report under their rules.
The Washington State Bar Association says, “When a lawyer is convicted of a felony, the lawyer must report the conviction to disciplinary counsel within 30 days of the conviction as defined by this rule.”
The South Carolina Bar says, “A lawyer who is arrested for or has been charged by way of indictment, information or complaint with a serious crime shall inform the Commission on Lawyer Conduct in writing within fifteen [15] days of being arrested or being charged by way of indictment, information or complaint.” It goes on to say, “A lawyer who is disciplined or transferred to incapacity inactive status in another jurisdiction shall inform the Commission on Lawyer Conduct in writing within fifteen [15] days of discipline or transfer.” Comment 1 to 8.3 specifically says, “Any lawyer admitted to practice in South Carolina has a duty to self-report under paragraphs (a) and (b).”
The Virginia State Bar says,
A lawyer shall inform the Virginia State Bar if:
(1) the lawyer has been disciplined by a state or federal disciplinary authority, agency or court in any state, U.S. territory, or the District of Columbia, for a violation of rules of professional conduct in that jurisdiction;
(2) the lawyer has been convicted of a felony in a state, U.S. territory, District of Columbia, or federal court;
(3) the lawyer has been convicted of either a crime involving theft, fraud, extortion, bribery or perjury, or an attempt, solicitation or conspiracy to commit any of the foregoing offenses, in a state, U.S. territory, District of Columbia, or federal court.
The reporting required by paragraph (e) of this Rule shall be made in writing to the Clerk of the Disciplinary System of the Virginia State Bar not later than 60 days following entry of any final order or judgment of conviction or discipline.
Comment 6 to the Virginia Rules of Professional Conduct 8.3(e) tells us that the duty to self-report a criminal conviction or professional discipline … is triggered only after the conviction or decision has become final. Looking at the committee commentary to this rule, you will read that the unnumbered paragraph placed immediately after 8.3(e) tells us the duty is satisfied by “reporting in writing to the Clerk of the Disciplinary System of the Virginia State Bar not later than 60 days following entry of any final order or judgment of conviction or discipline.”
The State Bar of Georgia says its members shall report within 60 days to the State Bar of Georgia [a conviction of] any felony or “… misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law; or the imposition of discipline by any jurisdiction other than the Supreme Court of Georgia.” “The maximum penalty for violating the rule is a public reprimand.”
The Massachusetts Bar Association says a lawyer’s duty to self-report his or her conviction of a crime is contained in Supreme Judicial Court Rule 4:01 12(8). It states, “Within ten [10] days of a lawyer’s conviction of a crime, as defined in subsection 12(1) of this rule, the lawyer shall notify the Bar Counsel of the conviction.” Under Rule 12(1), a “conviction” is defined as follows and therefore is not limited to felonies: “the term ‘conviction’ shall include any guilty verdict or finding of guilt and any admission to or finding of sufficient facts and any plea of guilty or nolo contendere which has been accepted by the court, whether or not sentence has been imposed.”
The Colorado Bar Association says,
Every attorney subject to these Rules, upon being convicted of a crime, except those misdemeanor traffic offenses or traffic ordinance violations, not including the use of alcohol or drugs, shall notify the Regulation Counsel in writing of such conviction within 14 days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the Regulation Counsel within 14 days after the date of the conviction a certificate thereof.
It’s worth noting that Colorado has developed a multitude of case law under this rule and it is worth exploring if you are considering being licensed there. One particular case not explored here, but related to an Oklahoma licensed attorney, also licensed as a CPA in three other states, is that of State ex rel. Oklahoma Bar Association v. Auer.
Oklahoma
In State ex rel. Okla. Bar Ass’n v. Wintory, the respondent promptly notified the Oklahoma Bar Association of his final judgment by telephone within the 20 day timeframe. Furthermore, the court has provided us with guidance to this method of response. The “Court has previously stated that although Rule 7.7(a) does not require any particular mechanism for conveying the information, the better practice is to inform the General Counsel in writing of discipline by another jurisdiction.”
Finally, in State ex rel. Okla. Bar Ass’n v. Patterson, the respondent was continuing to practice law under an order of suspension while disbarred by the United States Court of Appeals for the 10th Circuit.31 However, to his credit, the Professional Responsibility Tribunal concluded that “there was ‘sufficient confusion surrounding the original suspension order giving rise to the subsequent disbarment order’ that respondent’s degree of culpability for his disbarment was difficult to assess.” Moreover, Patterson claims he was “unaware of his notification obligation.” Sadly, he not only did not report his disciplinary sanction by the 10th Circuit in 1994 to the Oklahoma Bar Association, but he also did not report his disbarment in 1998, which caused grounds for further discipline.
Justice Opala, who wrote the dissent to Patterson’s per curiam decision, did not agree with the majority’s “lenient” decision in handing down only a public censure. Instead, he believed Patterson should be suspended for two years and one day. Furthermore, he stated that, “Ignorance of a disciplinary rule is not a complete defense to a lawyer’s failure to comply with that rule, but where there is an absence of a deceitful motive, it may be considered as a mitigating factor.” The mitigating factor here was that the respondent did not reply to the 10th Circuit’s show-cause order because of his stated overwhelming workload due to his partner’s illness. In the end, Patterson was given a public censure.
Conclusion
In closing, while jurisdictions may vary, a lawyer is required to self-report lawyer misconduct under Oklahoma’s RGDP 7.7(a). It requires an Oklahoma licensed attorney to self-report his or her lawyer misconduct, preferably in writing, within 20 days to the Office of the General Counsel at the Oklahoma Bar Association, including any lawyer misconduct that has been adjudicated against him or her in a final order or disposition from other jurisdictions. While following this rule may not diminish any disciplinary sanction(s) being decided against a lawyer, abiding by it will certainly not give reason to aggravate. The best practice is to know the rules in advance.
