Wednesday, March 30, 2016
Oklahoma Accepts Computer Illiteracy As Mitigation: Censure Imposed
A technology-challenged attorney admitted in 1967 has been censured by the Oklahoma Supreme Court for misconduct that had led to discipline in United States Bankruptcy Court.
During the hearing before a trial panel of the Oklahoma Bar Association's Professional Responsibility Tribunal, the complainant entered as exhibits the bankruptcy court's transcript of proceedings, and the documentation of the orders issued by that court. Judge Sarah A. Hall, who serves in the Western District of Oklahoma, suspended Mr. Oliver from practice in that court for a period of at least 30 days on October 29, 2014, and reinstated him on December 1, 2014. That judge suspended him again on January 14, 2015, for a period of at least 60 days. On June 15, 2015, that court permanently suspended him from practicing in the United States Bankruptcy Court for the Western District of Oklahoma. Those documents were included in the complainant's exhibits.
During the hearing before the trial panel, Mr. Oliver acknowledged that his problems with the bankruptcy court were caused by his lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations with electronic pleading requirements. No testimony nor any documents showed an insufficiency in Mr. Oliver's knowledge of substantive bankruptcy law. The trial tribunal reported that his problem was technological proficiency. This, in itself, does not disqualify him from practicing law in the courts of Oklahoma.
In the show cause hearing before the federal court on May 6, 2015, Judge Hall informed him of the errors that he made in filing nine "homework" documents that she had assigned to him. Mr. Oliver began by answering the judge's invitation to tell her why he should not permanently be suspended from practicing in that court. He replied he had an attorney friend who would be willing to assist him with all of the filings for the next few weeks. When questioned by the court he named a specific attorney. The judge was not familiar with that attorney and told him he needed an attorney who knew bankruptcy exceptionally well. She told him he had thirty days to "have a lawyer on board," and one who was well-versed in the local rules and guidelines. She wanted that lawyer to file something telling the court that the attorney agreed to assist Mr. Oliver. The judge instructed him to resubmit the homework without any errors, neither rules errors nor even any typographical errors. Again she told him that he would have to submit something from an attorney who confirms the attorney was well-qualified and had agreed to assist Mr. Oliver in his bankruptcy filings.
In the bankruptcy court's order of May 7, 2015, the judge memorialized her instructions from the show cause hearing. In her instructions he was required to refile the nine documents he previously presented, which had to be "error free." She ended that paragraph with the sentence, "In doing so, Oliver may not seek or obtain assistance from this Court's law clerk, the staff of the Court Clerk's office or any other person." The next paragraph requires him to file a document certified under oath from a bankruptcy attorney agreeing to associate with Mr. Oliver and assist him in the preparation and filing of "documents with this Court" and that he or she was well versed in the Local Rules and Guidelines of the court and the Federal Rules of Bankruptcy Procedure."
In the June 15, 2015, order permanently suspending Mr. Oliver from the practice of law, the court accused and concluded that Mr. Oliver disobeyed the order of the court by contacting a bankruptcy lawyer admitted in that court and paying him "$1,000.00 to provide the nine (9) documents" the court required. However, that attorney had called and talked to the judge's law clerk with Mr. Oliver's permission to find out what he was permitted to do to aid Mr. Oliver. The attorney testified before the trial panel that he told the clerk that Mr. Oliver did not hire him to ghost-write the assignment, and that Mr. Oliver had worked pretty hard on the assignment on his own. The attorney testified he told the clerk that "I had worked on reviewing some forms that Ed had done, and most of them looked pretty good and they could use some tucking in in a few areas." He further testified that Mr. Oliver had talked to him "regularly" about needing a short letter about the attorney's knowledge of bankruptcy law and that he was willing to work with Mr. Oliver. He had not talked to the judge, but only to her clerk, and there was no hearing subsequently before the judge. The only testimony given under oath is that which was held before the trial panel of the Professional Responsibility Tribunal. Accordingly, we find by clear and convincing evidence that the Bar Association did not prove that Mr. Oliver's intent was to have another bankruptcy attorney do his "homework" for him. We can easily conclude that within the context of the bankruptcy court's order, Mr. Oliver was required to obtain the aid of a competent bankruptcy attorney, and he did that. He even specifically permitted that attorney to talk to the judge's clerk to find out what he was supposed to do to help Mr. Oliver.
At the hearing before the trial panel, the bankruptcy attorney's testimony, subject to cross-examination, explained that Mr. Oliver wanted him to check over the nine documents that Mr. Oliver had already completed, and that the money was for the attorney to continue to help Mr. Oliver in his bankruptcy practice. The attorney submitted a document memorializing their agreement with part of the $1,000 to be credited to future months, and the amounts of future payment. An arranged per-month payment followed. This is not inconsistent with the bankruptcy court's second requirement. The attorney testified that he wished to make it clear to the tribunal that he had not been asked, nor did he "ghost-write" the documents for Mr. Oliver. The trial panel did not find, nor do we, that the evidence supports any discipline regarding this particular matter.
During the hearing before the trial tribunal Mr. Oliver acknowledged his lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations in filing electronic pleadings. Mr. Oliver is suspended from the bankruptcy court. This, in itself, does not disqualify him from practicing law in the courts of Oklahoma. There is no such argument in the briefs. The trial panel made no such finding.
Vice Chief Justice Combs dissented, joined by Justice Taylor
I respectfully dissent to the majority's decision to publicly censure the Respondent, James Edward Oliver. The decision merely to publicly censure the Respondent results from a mischaracterization of his problematic conduct while practicing before the United States Bankruptcy Court for the Western District of Oklahoma (Bankruptcy Court). Respondent's actions resulted, after several temporary suspensions, in his permanent suspension by the Bankruptcy Court in June of 2015.
The majority determines Respondent's problem to be one of computer illiteracy and declares Respondent's inability to adapt to electronic forms and filing to be the reason for the Bankruptcy Court's progressive disciplinary orders, noting those issues have little bearing on his ability to practice law in the State of Oklahoma generally. A detailed examination of the record in this cause reveals that Respondent's issues go far beyond technological illiteracy.
The series of disciplinary orders concerning Respondent reveal an attorney not only unable to meet the minimum requirements of modern bankruptcy practice but also one unwilling to make any substantial effort to do so. Respondent effectively ignored the local rules and guidelines, made no effort to correct his work despite being given personalized help by the Bankruptcy Court's staff on more than one occasion, and insulted court staff when the Bankruptcy Court refused to bend the rules for him.
After giving Respondent multiple chances, the Bankruptcy Court ordered Respondent to submit draft templates of nine frequently filed documents, and specifically stated that "in doing so, [Respondent] may not seek or obtain assistance from this Court's law clerk, the staff of the Court Clerk's office or any other person." In a separate portion of the same order, the Bankruptcy Court required Respondent to file a document certified under oath by a bankruptcy attorney conforming that the attorney would assist Respondent in his practice...
To quote the Bankruptcy Court's own Order of Permanent Suspension: "[Respondent] has blamed his problems on software deficiencies and computer glitches, even when poor reading comprehension, impatience and/or lack of attention to detail were the real culprits." As part of the disciplinary process, it is our duty to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. State ex rel. Okla. Bar Ass'n v. Friesen, 2015 OK 34, ¶18, 350 P.3d 1269; State ex rel. Okla. Bar Ass'n v. Layton, 2014 OK 21, ¶34, 324 P.3d 1244. I am unconvinced Respondent will represent future clients with any more competence than he displayed in his bankruptcy practice, and find his lack of candor and blatant disregard for the Bankruptcy Court's orders disturbing.
The dissenters would suspend the attorney for two years and a day. (Mike Frisch)
I have to side with the Dissent here. I know what I don't know, and I ask for help. We teach students that one should not accept a case if not competent as to the substantive law, or get help to get up to speed. I don't think computer competence is any different. It's not as if the internet filing rules are all that new, either.
Posted by: Alan Childress | Mar 31, 2016 10:03:38 AM