Category Archives: yer disobey order of tribunal

Oklahoma Supreme Court publicly censures lawyer who had been permanently suspended by bankruptcy court for disobeying order

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

jcorsmeier@jac-law.com

www.jac-law.com

 

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Kentucky Supreme Court opinion finds that lawyer did not disobey obligation to tribunal by ignoring judge’s warnings about his behavior

Hello everyone and welcome to this Ethics Alert which will discuss the recent Kentucky Supreme Court disciplinary opinion which held that a lawyer’s repeated disruptive behavior and refusal to abide by a judge’s “repeated warnings” to tone down his behavior did not violate the portion of the Kentucky Bar Rule which prohibits a lawyer from disobeying “an obligation under the rules of a tribunal” although it does violate other Bar Rules  The opinion is Kentucky Bar Ass’n v. Blum, Ky., No. 2012-SC-000825-KB (April 25, 2013).  The opinion is attached and is at http://op.bna.com/mopc.nsf/id/kswn-97fnd9/$File/Blum.pdf

According to opinion, the disciplinary charges arose out of the lawyer’s “nearly decade-long handling of a teacher termination dispute, which was litigated in various state and federal forums.”  The lawyer’s client was a high school teacher and part-time photographer who allegedly took inappropriate pictures of a female student.  The client was terminated after an administrative tribunal heard charges against him in 1996.  Several years later, a court “ordered the case remanded to the tribunal upon a finding that the instructions given to the tribunal by the hearing officer were erroneous and that additional mitigating factors should be considered in determining the penalty.”  The termination was ultimately upheld and the lawyer then filed an unsuccessful civil rights complaint in federal court.

Referring to the specific language in Kentucky Bar Rule 3.4(c), the opinion stated that an “(o)bligation under the rules of a tribunal’ means just that. It does not encompass violations of warnings, admonitions, or other statements made by a trial judge in an attempt to urge an attorney to conform his conduct to the recommended courtroom practice.”  The opinion also stated that “(t)he court speaks through its orders and (Rule) 3.4(c) is intended to discipline attorneys who do not comply.”

The opinion confirmed the scope of Kentucky Bar Rule 3.4(c) and stated that the rule applies only “where an attorney violates a court order, a rule of civil procedure or a local rule; fails to appear for a client or respond despite numerous requests for a response; or continues practicing after being suspended from the practice of law” and, although the lawyer “acted contrary to repeated warnings, admonitions, and directions” of the trial judge, he did not violate Rule 3.4(c).     

According to the opinion, even though the lawyer did not violate Kentucky Bar Rule 3.4(c) by disobeying an obligation of a tribunal, he did violate Kentucky Bar Rule 3.4(f) for “threatening to present disciplinary charges solely to obtain an advantage in his client’s case”; Bar Rule 3.5(c) for “making allegations that were unsubstantiated or unrelated to the case and by multiplying the proceedings unreasonably and vexatiously”; Bar Rule 3.1 for “pursuing [a] case based on unsubstantiated, frivolous, and baseless allegations”; and Rule 8.2(a) for alleging that administrative officials “conspired against” and attempted to “frame” his client by “rigg(ing)” his hearing.           

The opinion stated that, with regard to Rule 8.2(a) “(w)hen an attorney speaks during a judicial proceeding, as (the lawyer) did here through various motions and filings, he cannot seek refuge within (his) own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults which raise doubts as to a judge’s impartiality.’”   

The lawyer was suspended for “not less than 181 days” and required to attend an Ethics and Professionalism Enhancement Program at his own expense within 12 months of the Order, be evaluated by the Kentucky Lawyer’s Assistance Program within three months of the opinion and follow any and all treatment or counseling recommendations, and pay the costs of the disciplinary proceeding.

Bottom line:  This opinion addresses and clarifies the narrow scope of Kentucky Bar Rule 3.4(c) (which is substantially similar to Florida Bar Rule 4-3.4(c) and other state Bar Rules) and addresses how other Bar Rules may be violated when a lawyer engages in the litigation related conduct discussed in the opinion.

Be careful out there!

Disclaimer: this e-mail 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

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, yer disobey order of tribunal