Wednesday, October 12, 2011

No Basis To Vacate Disbarment

An attorney who was disbarred in 2003 filed a motion to vacate the order and proceedings against him, claiming that the Oklahoma Supreme Court did not have jurisdiction to sanction him.

The claimed basis to vacate:

In December 2010 Respondent filed a petition to vacate and sought to vacate all of the disciplinary proceedings herein, including this Court's opinion disbarring him in 2003.  His seventy-eight page petition claims that the disciplinary proceedings occurred without personal jurisdiction. His argument centers on the concept that personal jurisdiction requires a summons and a return to be of record in a proceeding. He also claims that the trial panel lacked subject matter jurisdiction because his trial panel hearing did not occur within the sixty days required by Rule 6.7 of the Rules Governing Disciplinary Proceedings. He argues that Rule 6.7 created a "Due Process Property Right" to which he was entitled. He argues that opinions of this Court have held that certain time limits in the procedure for disciplinary proceedings are not jurisdictional, and that such holdings make the disciplinary procedure "void for vagueness," and that all of Oklahoma's lawyer disciplinary proceedings are void. He argues that he was denied equal protection under the law as guaranteed by the Fourteenth Amendment to the U. S. Constitution because (1) Rule 6.4 "prevents challenges to the jurisdiction over the accused, the proceeding, the claims, etc., in Oklahoma attorney disciplinary proceedings," (2) that the Code of Civil Procedure in civil cases is not allowed to be followed in its entirety in disciplinary proceedings, and (3) a strict rule of procedure such as the sixty-day requirements of Rule 6.7 may not be "relaxed." Respondent seeks as additional relief an order expunging all records of his disciplinary proceedings and to be reinstated on the Oklahoma Roll of Attorneys.

The court disagreed:

We hold prospectively that the statutory procedure for vacating judgments in a District Court, 12 O.S. ยงยง 1031-1038, inclusive, is not applicable in a Bar disciplinary proceeding. We have examined Respondent's allegations relating to jurisdiction herein. Respondent made a general appearance in this disciplinary proceeding and his claim of a lack of personal jurisdiction is without merit. Respondent frames his other claims as violations of constitutional principles that he then attempts to characterize as jurisdictional via the Oklahoma Due Process Clause. These claims are not jurisdictional. For example, Respondent's claim of noncompliance with the literal language of Rule 6.7 is a claim of legal error and is not jurisdictional. As a nonjurisdictional claim, any legal error in granting the six-month continuance is not a jurisdictional flaw on the face of the record and is not grounds for vacating Respondent's disbarment. We have also concluded that the claims raised by Respondent are without merit, and that his petition to vacate his disbarment and all other requests for relief should be denied.

Respondent's petition to vacate his disbarment is denied. Respondent's request to expunge his Oklahoma professional disciplinary records is denied. Respondent's request for relief against his former lawyer is denied. Respondent's request for relief against the Oklahoma Bar Association is denied. All other relief requested by Respondent in his Petition to Vacate and Notice of Reservation is denied.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/10/an-attorney-who-was-disbarred-in-2003-filed-a-motion-to-vacate-the-order-and-proceedings-against-him-claiming-that-the-oklah.html

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