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A lawyer’s duty to self-report disciplinary misconduct

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Self Reporting

Imagine you’ve been practicing law for a number of years in state (state B), perhaps occasionally taking a case in Oklahoma (state A). You’ve managed to keep your state A license in good standing with no disciplinary complaints ever filed against you. Currently, you’re the prosecutor in a capital murder trial in state B and the court wants to appoint a confidential intermediary (CI) to the defense in order to assist with mitigation evidence should the defendant be found guilty during the penalty phase of the trial.

You have a number of conversations with the CI that encompass confidential information about the defendant, but you don’t initially disclose this to your co-counsel or the court because you believe you don’t have an obligation to disclose such information. The defense attorney knows of only one conversation you had with the CI. Later, when the defense files a motion to recuse you from the trial, you sign and file a motion in response mentioning only the one conversation you had with the CI.

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? 1

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.”2 This is not a new rule. It was adopted Feb. 23, 1981, and took effect July 1, 1981.3

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).4 They also cover proceedings for the unauthorized practice of law.5 Discipline can range from disbarment, public censure and private reprimand, to suspensions and deferments depending on the severity of the misconduct.6 The Oklahoma Supreme Court determines the severity of the discipline.7 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.8 This is because the RGDP is implicated by a lawyer’s violation of the ORPC.9

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.”10 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.”11 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.”12

RGDP 1.3 tells us that a “conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.”13 In fact, any act that could bring discredit upon the legal profession is grounds for disciplinary action.14 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, 1981.15

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.”16

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.”17 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.”18 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).”19

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.20

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.21 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.”22

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.”23 “The maximum penalty for violating the rule is a public reprimand.”24

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.”25 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.”26

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.27

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.28

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.29 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.”30

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.”32 Moreover, Patterson claims he was “unaware of his notification obligation.”33 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.34

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.35 Instead, he believed Patterson should be suspended for two years and one day.36 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.”37 The mitigating factor here was that the respondent did not reply to the 10th Circuit’s show-cause order because of his stated overwhelming work load due to his partner’s illness.38 In the end, Patterson was given a public censure.39

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.

FOOTNOTES

1. The above scenarios are representative of the cases of the State of Oklahoma ex rel., Okla. Bar Ass’n v. Wintory, 2015 OK 25, 350 P.3d 131 (2015); and State of Oklahoma ex rel., Okla. Bar Ass’n v. Patterson, 2001 OK 51, 28 P.3d 551 (2001) (per curiam), 72 OBJ 1921.

2. Rule 7.7(a), RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. 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.

3. Id.

4. Rule 1.1, RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. This Court declares that it possesses original and exclusive jurisdiction in all matters involving admission of persons to practice law in this State, and to discipline for cause, any and all persons licensed to practice law in Oklahoma, hereinafter referred to as lawyers, and any other persons, corporations, partnerships, or any other entities (hereinafter collectively referred to as “persons”) engaged in the unauthorized practice of law. This Court further declares that a member of the Bar of this State may not take unto himself any office or position or shroud himself in any official title which will place him beyond the power of this Court to keep its roster of attorneys clean. In the exercise of the foregoing jurisdiction, this Court adopts and promulgates the following rules which shall govern disciplinary and unauthorized practice of law proceedings.

5. Id.

6. Rule 1.7, RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. Discipline by the Court shall be disbarment, suspension of a respondent from the practice of law for a definite term or until the further order of the Court, public censure or private reprimand; the Court may, in its discretion, suspend or defer the imposition of discipline subject to the fulfillment of specified conditions by the respondent. This does not preclude the Professional Responsibility Commission from administering a private reprimand to a respondent as provided elsewhere. In fashioning the degree of discipline to be imposed for misconduct, the Professional Responsibility Tribunal and the Court shall consider prior misconduct where the facts are charged in the complaint and proved and the accused has been afforded an opportunity to rebut such charges.

7. Id.

8. See ORPC 8.5(a). Disciplinary Authority. 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 not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal service in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

9. See also, RGDP 1.3, 1.5.  RGDP 1.3: The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline. RGDP 1.5: This Court has adopted the Oklahoma Rules of Professional Conduct, adopted by American Bar Association, acting through its House of Delegates on August 2, 1983, and adopted by the House of Delegates of the Oklahoma Bar Association on November 21, 1986, as subsequently modified by this Court, and as it may hereafter be modified by this Court, as the standard of professional conduct of all lawyers. Any lawyer violating these Rules of Professional Conduct shall be subject to discipline, as herein provided.

10. Rule 8.5(a), ORPC, 5 O.S. 2008, Ch. 1, App. 3-A. (a) Disciplinary Authority. 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 not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal service in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

11. Rule 8.5(a), ORPC, 5 O.S. 2008, Ch. 1, App. 3-A. cmt. 1 “It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of this jurisdiction under Rule 8.5(a) appoints an official to be designated by this Court to receive service of process in this jurisdiction. The fact that the lawyer is subject to the disciplinary authority of this jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.”

12. Rule 8.5(a), ORPC. cmt. 2 “A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations. 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. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.”

13. Rule 1.3, RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.

14. Id.

15. Rule 1.5, RGDP, 5 O.S. 2011, Ch. 1, App. 1-A. This Court has adopted the Oklahoma Rules of Professional Conduct, adopted by American Bar Association, acting through its House of Delegates on August 2, 1983, and adopted by the House of Delegates of the Oklahoma Bar Association on November 21, 1986, as subsequently modified by this Court, and as it may hereafter be modified by this Court, as the standard of professional conduct of all lawyers. Any lawyer violating these Rules of Professional Conduct shall be subject to discipline, as herein provided. Adopted by orders February 23, 1981; eff. July 1, 1981; Amended by order of March 2, 1992.

16. Washington State Court Rules: Rules for Enforcement of Lawyer Conduct (ELC) 7.1(2) (b). Reporting of Conviction. 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.

17. South Carolina Rules of Professional Conduct (RPC) 8.3(a) Reporting Professional Misconduct, Rule 407, SCACR. 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 days of being arrested or being charged by way of indictment, information or complaint.

18. Id. at 8.3(b). 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 days of discipline or transfer.

19. RPC, 8.3, Reporting Professional Misconduct, Rule 407, SCACR, cmt. 1. “Any lawyer admitted to practice in South Carolina has a duty to self-report under paragraphs (a) and (b). The disciplinary procedures for handling matters giving rise to mandatory self-reports are set forth in Rules 17 and 29, RLDE, Rule 413, SCACR.”

20. Virginia Rules of Professional Conduct, Rule 8.3(e) (1) (2) (3).

21. VRPC, Rule 8.3(e), cmt. 6. “The duty of a lawyer to self-report a criminal conviction or professional discipline under paragraph (e) of this rule is triggered only after the conviction or decision has become final. Whether an offense is a felony shall be governed by the state, U.S. territory, District of Columbia or federal law under which the conviction is obtained. Thus, it is possible that an offense in another jurisdiction may be a misdemeanor crime for which there is no duty to self-report, even though under Virginia law the offense is a felony.”

22. VRPC, Rule 8.3, See Comm. Commentary. “The amendments effective February 1, 2016, added the unnumbered paragraph immediately following 8.3(e) (3).”

23. Georgia Rules of Professional Conduct and Enforcement Thereof, Rule 9.1(a) Reporting Requirements.  Members of the State Bar of Georgia shall, within sixty days, notify the State Bar of Georgia of:

1. being admitted to the practice of law in another jurisdiction and the dates of admission;

2. being convicted of any felony or of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law; or

3. the imposition of discipline by any jurisdiction other than the Supreme Court of Georgia

24. Id.

25. Massachusetts Supreme Judicial Court Rule (SJCR) 4:01 12(8). Within ten 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.

26. SJCR 4:01 12(1). 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.

27. Colorado Rules of Civil Procedure (C.R.C.P.) 251.20(b) (2016). 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.

28. 2016 OK 75, 376 P.3d 243 (2016).

29. State ex rel. Okla. Bar Ass’n v. Wintory, 2015 OK 25, n.4, 350 P.3d 131, 138 n.4 (2015).

30. State ex rel. Okla. Bar Ass’n v. Stewart, 2003 OK 13, ¶16, 71 P.3d 1 (2003).

31. State ex rel. Okla. Bar Ass’n v. Patterson, 2001 OK 51, ¶2, 28 P.3d at 553 (2001) (per curiam).

32. Id. at ¶4.

33. Id. at ¶13.

34. Id.

35. State  ex rel. Okla. Bar Ass’n v. Patterson, 2001 OK 51, ¶36-1, 28 P.3d 551, 561 (2001) (Opala, J., dissenting in part). “I concur in visiting discipline on the respondent, but dissent from the lenient sanction imposed, which is disproportionate to the gravity of the misconduct underlying his earlier disbarment by the United States Court of Appeals for the 10th Circuit (10th Circuit). It also ignores respondent’s failure to give a clear and comprehensible exculpatory account of that conduct. I would instead suspend respondent’s legal license for a period of two years and one day.”

36. Id.

37. Patterson, 2001 OK 51, ¶36-3, 28 P.3d 551, 562 (2001) (Opala, J., dissenting in part).

38. Patterson at ¶23, 28 P.3d at 558. “Respondent attributes his noncompliance with the show-cause order to the overwhelming work load that his partner’s illness shifted to him.”

39. Patterson at ¶34, 28 P.3d at 561.

Jason Supplee Jason B. Supplee received his J.D. from the Oklahoma City University School of Law and is licensed in Oklahoma and Texas. Currently, he as an Assistant District Attorney in Nueces County (Corpus Christi), Texas. Previously, he clerked for the Office of General Counsel at the Oklahoma Bar Association.