Hello and welcome to this Ethics Alert blog which will discuss recent Oklahoma Supreme Court opinion censuring a lawyer who had been permanently suspended from practicing before the bankruptcy court for disobeying a bankruptcy judge’s order. The case is State ex rel. Oklahoma Bar Association v. Oliver, case number Case Number: SCBD-6268 (Oklahoma Supreme Court, March 29, 2016). The disciplinary opinion is here: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=477506
According to the opinion, the lawyer was suspended for 30 days by a bankruptcy judge in the Western District of Oklahoma on October 29, 2014, he was reinstated on December 1, 2014, and he was suspended again for 60 days on January 14, 2015.
In a show cause hearing on May 6, 2015, the bankruptcy judge told the lawyer that he had errors in nine documents that she had assigned for him to complete and required that he show cause as to why he should not be permanently suspended from practicing in that court. The lawyer stated that he had an attorney friend who would be willing to assist him with his filings. The judge told the lawyer that he had 30 days to have a bankruptcy attorney who was well-versed in the local bankruptcy rules and guidelines to assist him and file a document confirming that attorney’s assistance. The judge also required the lawyer to resubmit the documents without any substantive or typographical errors.
The judge issued an order on May 7, 2015 confirming her instructions at the show cause hearing. The lawyer was required to refile the nine documents and, “(i)n doing so, (the lawyer) may not seek or obtain assistance from this Court’s law clerk, the staff of the Court Clerk’s office or any other person.” The order also confirmed that the lawyer was required to file a document under oath from a bankruptcy attorney who was “well versed in the Local Rules and Guidelines of the court and the Federal Rules of Bankruptcy Procedure” and agreeing to assist in the preparation and filing of documents with the court.
On June 15, 2015, the judge permanently suspended the lawyer from practicing in the court after concluding that he had disobeyed her order by contacting a bankruptcy attorney who was admitted in that court and paying him $1,000.00 to prepare and provide the nine documents that she had required in the show cause order.
The bankruptcy attorney testified at the disciplinary hearing that the lawyer had only asked him to review the nine documents that he had already completed and that the $1,000.00 was for the attorney to continue to help the lawyer in his bankruptcy practice. The attorney submitted the agreement which stated that part of the $1,000.00 was to be credited to future months, and provided the amounts of future payment. He also testified that he had contacted the clerk to obtain guidance on the court’s requirements and he not been asked to prepare the documents for the lawyer nor had he written them. The opinion stated that the evidence did not support any discipline related to that issue.
The Bar trial panel recommended that the lawyer be publicly reprimanded for failing to provide notice to the Oklahoma Bar regarding his bankruptcy court suspensions. The panel also found that the lawyer did not deliberately conceal his suspensions and that he had admitted that his oversight resulted from his ignorance of the rule. The lawyer had notified his clients of the January 14, 2015 sixty day suspension on April 21, 2015 and he admitted that he should have provided more timely notice of his suspensions to his clients.
The Bar prosecutor’s office recommended that the lawyer’s discipline be in the range of a public censure to a 6 month suspension. After hearing the mitigating evidence and the witnesses, the trial panel recommended that the lawyer receive a public censure and found that “(t)here is no evidence of a deliberate effort at concealment.” The panel also noted that the lawyer continued to attend bankruptcy CLE seminars even though he was no longer required to attend them.
The disciplinary opinion stated that the lawyer acknowledged his lack of expertise in computer skills and his frustration in trying to meet the federal court’s expectations in filing electronic pleadings and that he also admitted that he had failed to report his suspensions to the Oklahoma Bar and that he did not timely notify his clients of the suspensions. The lawyer received a public censure; however, two justices dissented and stated that they would suspend the attorney for two years plus one day.
Bottom line: This is an unusual case. The lawyer was permanently suspended by a bankruptcy judge from practicing in (after being suspended on two previous occasions) and then failed to report his suspensions to the general counsel of the Oklahoma Bar Association and failed to “timely” notify his bankruptcy clients of the suspensions; however, he received only a public censure of his license to practice in Oklahoma. This is an example of how discipline imposed by a federal bankruptcy court (or other federal or administrative court) does not automatically result in the same discipline by the state court, unlike state court discipline, which typically results in reciprocal discipline of the lawyer’s license to practice in other states.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670