Wednesday, November 4, 2009

Bar Prosecutors Rebuked

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)

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Oklahoma is a good court and very competent when it comes to attorney discipline. This is one of the very few courts that I would trust to pass judgment on my reputation.

I have now had a lot of experience with Bar Counsel from numerous jurisdictions. I am absolutely amazed at how bad they are. What I find is that they are only aware of their narrow area of the law and are generally working from cut-and-paste material with no real understanding of the fundamentals behind what they are writing. If you can come up with an argument that takes them beyond this databank then they are totally lost. I guess this is a product of Bar Counsel jobs being just about the bottom of the list in terms of desirability. The Bar Counsel that do tend to be good are the generalists who also handle this sort of work. For example, the Attorney General’s office in Connecticut which will often handle disciplinary matters as part of their writ of error practice. They tend to both be good basic lawyers and know how to research the material and to write.

Three things usually save Bar Counsels from embarrassment:

1) They are usually working in a very narrow area where they can have a good databank of material and usually others with more experience to help them out.
2) The respondents usually start with little understanding of the disciplinary area of the law and don’t have sufficient time to come up to speed. Plus, they often are respondents for a reason.
3) As you correctly pointed out, few courts will criticise Bar Counsel. They do, after all, work for the court. To criticise them is to criticise their own administration.

As to whether a lawyer has himself for a client, this is an interesting area of the law with a split between the jurisdictions. The BPR is trying to go the direction of holding that a lawyer is representing himself. This is an issue in my own cases both in Connecticut and in the District of Columbia. Rule 1.1 presents an especially interesting situation. Here is what I said in my Connecticut brief in a footnote:

>>> If Rule 1.1 were to now be interpreted so as to prohibit a lawyer from defending himself in his own criminal proceeding on the basis that he was not providing competent representation to himself, then Rule 1.1 would clearly interfere with an attorney’s constitutionally protected right to forgo the assistance of counsel. “Both the federal constitution and our state constitution afford a criminal defendant the right to forego the assistance of counsel and to choose instead to represent himself or herself at trial. As a matter of federal constitutional law, the right to self-representation is premised on ‘the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.’ Faretta v. California, 422 U.S. 806, 818 (1975)” State v. Day, 233 Conn. 813, 820 (1995). Denial of the right of self-representation is a structural error. State v. Flanagan, 293 Conn. 406, 434 (2009). <<<


Posted by: FixedWing | Nov 6, 2009 3:41:52 PM

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