Wednesday, November 4, 2009
The Oklahoma Supreme Court rejected a proposed stipulation between an attorney and the Oklahoma Bar Association (the "OBA)" and imposed public reprimand and probation for one year. The court was sharply critical of the stipulation:
The stipulations here do not contain a statement of stipulated facts, but instead incorporate the allegations, and they are nothing more than Respondent's agreement to the stated allegations in the amended complaint. Many of these allegations are inconsistent with the evidence. They contain significant factual errors as well as erroneous legal conclusions. The numerous unequivocal factual and legal errors in the stipulations here degrade the credibility, and in turn the value, of the remaining stipulations. For this reason, we reject the parties tendered stipulations as establishing the facts.
In addition to the stipulations, the record here contains Respondent's testimony and a box of exhibits. As to Respondent's testimony, the OBA failed to present evidence to substantiate the allegations by soliciting supporting testimony from the Respondent, but instead it abdicated its role as complainant by shifting the burden of supporting the stipulations onto Respondent's counsel. Were it not for questioning by the PRT [the Professional Responsibility Tribunal] many of the facts which direct our decision here would not have been revealed. As to the exhibits, they are unorganized, incomplete, and labeled in such a manner that, for the most part, they are not helpful in deciphering the facts. By submitting the factually and legally incorrect allegations, failing to support the stipulations with documentary and testimonial evidence, and submitting substandard exhibits, the OBA has "unnecessarily complicated our review of this case." (citation omitted). Further complicating our review is the OBA's failure to make legal arguments in its brief to this Court which support the alleged violations. Even through there are deficiencies in the record, it contains sufficient testimonial and documentary evidence for our de novo review.
The court then engages in an extended discussion of the various charges and record evidence in concluding that the attorney engaged in ethical violations warranting public discipline (as found by the PRT) but closes with a slap in denying the OBA's request for costs:
While there is no statutory authority for assessing attorney fees against the OBA in a disciplinary proceedings, we find that the manner in which the OBA has litigated this matter warrants a denial of costs. First, the OBA took four years to litigate this matter. Some of the delay is justified; some is not. Second, the OBA asserted violations of rules which were not in effect at the time of the alleged misconduct, asserted violations of rules which are not supported by the alleged facts, asserted violations of rules for which it submitted no evidence, misstated facts which are shown to be incorrect by a simple review of this Court's records, presented an deplorable record to this Court, sent requests for information to Respondent with only a Worker's Compensation form 3 attached to show a violation of the rules to which he was required to respond, provided a brief to this Court which is without substantive argument but relies on Respondent's stipulation that his conduct violated the ORPC and RGDP, and abandoned its responsibility to present clear and convincing evidence to Respondent's attorney. Third, we do not find the OBA has proven a majority of the charges by clear and convincing evidence. For these reasons, the OBA should not be rewarded with reimbursement of its costs.
Also of interest is the court's conclusion that an attorney cannot violate the duty to provide competent representation in a pro se matter:
The OBA contends that Respondent has violated Rule 1.1 the ORPC. Rule 1.1 of the 2001 ORPC deals with a lawyer's duty to the client. It provides: "A lawyer shall provide competent representation to a client." Throughout the ORPC, the term client is treated as a person separate from the lawyer. For example Rule 1.2 requires that a lawyer abide by the client's decisions and refrain from counseling a client to engage, or assist a client in criminal conduct, and Rule 1.4 requires a lawyer to keep a client reasonably informed. It is inane to construe the term "client" to include oneself. While as the adage goes "a lawyer representing himself has a fool for a client," we do not agree that Rule 1.1 imposes a duty to provide competent representation to oneself when acting as a pro se litigant.
It is rare to see such pointed criticism of bar prosecutors. (Mike Frisch)