Wednesday, October 29, 2008

Ignorance Rather than Rebellion

In light of our post earlier today about the consequences on non-compliance with the terms of a suspension order, a decision from the Oklahoma Supreme Court that deals with a lawyer who had engaged in unauthorized practice in violation of a suspension order may be of interest. The court, dealing with the issue in the context of a reinstatement petition, found the lawyer's error a product of legitimate confusion and ordered a back-dated six-month suspension which in effect grants immediate reinstatement. The court states:

Here, we are not presented with an individual blatantly ignoring the rules by which he is governed. Rather, when the attorney realized he did not fully understand the language of the opinion imposing discipline in Combs I, he made multiple inquiries of the Bar Association in an attempt to keep him from violating his suspension and then later inadvertently engaging in the unauthorized practice of law for failure to have followed the rules applicable to a suspension for less than two years. He did not receive appropriate direction from the Bar Association. It is important to look at these factors and circumstances. It is uncontested that when Combs returned to the practice of law, he was convinced that he had satisfied all conditions of his suspension. Once he was informed that his name continued to be on the list of suspended lawyers, he immediately self-suspended himself and filed an application for reinstatement. A lawyer's state of mind may be considered in fashioning discipline.

We recognize that the facts of this cause are unique. The language in the original disciplinary opinion may arguably have led the attorney to believe that there were no conditions precedent to his resumption of the practice of law after the expiration of his suspension other than the payment of costs. The Bar Association did not specifically direct Combs or his counsel to the rules relating to his situation nor did it explain the requirements of the rules. Finally, the attorney completely failed to familiarize himself with the rules related to his suspension and to comply with the specific requirements of those rules. Nevertheless, Combs acted in ignorance rather than in rebellion against disciplinary authority. Furthermore, it is not alleged that any clients suffered harm because of the attorney's actions.

A dissent isn't buying:

This suspended attorney has continued his course of not following the law and the ethical requirements imposed upon members of the Bar. He now seeks to blame this Court for confusing him with its footnotes. He seeks to blame the Oklahoma Bar Association for not advising him of his responsibilities. He was responsible for knowing and following the law and the rules. Once again, he has fallen short of that requirement. I would impose a period of suspension that is not retroactive.

This decision does reinforce, albeit with a gentle tone, the point concerning the importance of an attorney reading, understanding, and complying with the terms of a court-ordered suspension. The court finds the conduct to be an ethical violation but considers state of mind in granting nunc pro tunc treatment to the second suspension order. (Mike Frisch)

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I have generally been impressed with the well reasoned opinions of the Oklahoma Supreme Court. Query, how many other jurisdictions would have been willing to accept responsibility for a lack of clarity in a disciplinary decision? Not many, I think.


Posted by: FixedWing | Oct 29, 2008 12:57:40 PM

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