IN THE MATTER OF THE REINSTATEMENT OF DRAIN

2016 OK 68, 376 P.3d 208, 2016 Okla. LEXIS 70, 2016 WL 3342053
CourtSupreme Court of Oklahoma
DecidedJune 14, 2016
DocketSCBD 6271
StatusPublished
Cited by5 cases

This text of 2016 OK 68 (IN THE MATTER OF THE REINSTATEMENT OF DRAIN) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IN THE MATTER OF THE REINSTATEMENT OF DRAIN, 2016 OK 68, 376 P.3d 208, 2016 Okla. LEXIS 70, 2016 WL 3342053 (Okla. 2016).

Opinion

COLBERT, J.

{1 Harold Glenn Drain (Petitioner) seeks reinstatement of his membership to the Oklahoma Bar Association (OBA) and the Roll of Attorneys after resigning from the practice of law ten (10) years ago. The principle question before this Court is whether Petitioner has presented clear and convincing evidence that he possesses the competency and learning in the law sufficient for reinstatement. After reviewing the matter de novo, this Court holds Petitioner has failed to demonstrate the requisite competency and learning in the law required for readmission.

FACTS

T2 Petitioner was admitted to the Oklahoma Bar Association in 1999 following grad-vation from the University of Tulsa College of Law and successful 'completion of the Oklahoma Bar Exam that same year. Thereafter, Petitioner served as a term law clerk for the United States Bankruptey Court for the Western District of Oklizhoma from 1999-2000. From 2000 to 2006, Petitioner worked as an associate at a law firm, served as "Of Counsel" in a subsequent law firm, and ultimately established a private law practice.

T8 Due to personal family reasons, Petitioner voluntarily tendered his resignation from the practice of law to the. OBA on June 16, 2006. The OBA approved Petitioner's resignation effective July 6, 2006, pursuant to Article II, Section 3 of the Rules Creating and Controlhng the Oklahoma Bar Association. 1 At the time of Petitioner's resignation, no disciplinary proceedings or grievances were pending: against him. However, Petitioner was administratively suspended for failing to pay $100.00 in CLE late fees prior *210 to the effective date of Petitioner's resignation. >

T4 Following resignation, Petitioner was employed in various positions, From August 2006 to July 2009, he worked in management for a Rent-to-Own business which later merged with Rent-A-Center and Petitioner moved to Texas. In 2009, Petitioner accepted a paralegal position with a law firm where he remained until February 2011.

T5 While working as a paralegal, Petitioner accepted a part-time adjunct position teaching paralegal training courses at an American Bar Association-approved program for Kaplan College in Dallas, Texas. In February 2011, Petitioner became Kaplan's Program Director of Paralegal Studies, That position included teaching responsibilities, curriculum development, and some legal research,

16 In early 2014, Petitioner returned to Oklahoma City and worked as an adjunct instructor with the paralegal program at Brown Mackie College and later became the Director of Paralegal Studies at Vatterott College. To date, Petitioner continues to serve as the Director at Vatterott College and also works for a local attorney performing legal research and other law clerk duties.

T7 On May 29, 2015, Petitioner filed this Petition for Reinstatement, A panel of the Professional Responsibility Tribunal (PRT) heard the matter on August 14, 2015, and issued its report on November 25, 2015, pursuant to Rule 11.5 of the Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit, 5, ch. 1, app. 1-A. In it, the PRT unanimously determined that Petitioner's reinstatement was warranted. In so doing, the PRT found that Petitioner had complied with 'all procedural rules governing the reinstatement of attorneys. In addition, the PRT found that Petitioner had established by clear and convincing evidence that he had not engaged in thé unauthorized practice of law and has demonstrated his competence in the learning of the law required for readmission. Petitioner filed a brief in support of his reinstatement on May 29, 2015. The OBA filed its Waiver of Answer Brief on December 17, 2015.

STANDARD OF REVIEW

T8 This Court exercises "exclusive jurisdiction when it considers a petition for reinstatement and applies a de novo standard of review. In re Reinstatement of Blevins, 2002 OK 78, ¶ 3, 59 P.3d 510, 511. To assist in this Court's determination, the PRT is charged with, among other things, assessing an applicant's moral character, competency in the law, and whether the applicant engaged in the unauthorized practice of law during the applicant's period of suspension, disbarment, or resignation. Id, See also Rule 11.5, RGDP. However, those recommendations are merely advisory as it is this Court's "ultimate responsibility" to decide whether reinstatement is warranted. Id,

T 9 Rule 11, RGDP, governs reinstatement proceedings for an applicant "whose name has been stricken from the Roll of Attorneys for non-payment .of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or disbarred, or who has resigned membership in the Association." Rule 11.1, RGDP. The burden for reinstatement is more onerous than one seeking admission to the OBA for the first time, regardless of how the applicant's licence was terminated. See Rule 114, RGDP. The applicant must demonstrate by clear and convincing evidence that reinstatement is warranted and that the applicant's conduct conforms to the high standards required by the Oklahoma Bar Association. Id.; See also, In re Reinstatement of: Munson, 2010 OK 27, ¶ 12, 236 P.3d at 101.

110 In addition to the Rule 11.4 reinstatement requirements, this Court also considers the following eight factors:

(1) the applicant's present moral fitness; (2) demonstrated consciousness of the .conduct's wrongfulness and the disrepute it has brought upon the legal profession; (8) the extent of rehabilitation; (4) the original misconduct's seriousness; (5) conduct after resignation; (6) time elapsed since the resignation; (7) the applicant's character, maturity, and experience when [he resigned]; and (8) present legal competence.

*211 In re Reinstatement of Munson, 2010 OK 27, ¶13 236 P.3d 96, 101. (Emphasis added).

111 Upon a de novo review of the evidence presented at the PRT hearing, this Court determines that the PRT"s findings as to all factors relevant to reinstatement are meritorious, excluding Petitioner's competency in the law. Notably, the record is devoid of any evidence that Petitioner has satisfied the requisite mandatory continuing legal education requirements imposed upon Oklahoma practitioners. And, based on Petitioner's extended absence from the practice of law, Petitioner must now retake 'the Oklahoma Bar Examination as a prerequisite for readmission.

COMPETENCY AND LEARNING / IN THE LAW

12 Rule 11.5(c),. RGDP, requires an applicant "to take and successfully pass the regular examination given by the Board of Bar Examiners of the Oklahoma Bar Association" if the applicant's membership has been inactive for a period of five (5) years or longer. See In re Reinstatement of Farrant, 2004 OK 77, ¶ 6, 104 P.3d 567, 568. In essence, there is a presumption that an applicant does not "possess sufficient competency in the law to be reinstated, absent an extraordinary showing. ..." Id., ¶ 7, 104 P.3d at 569, An absence from the practice of law for five years or more weighs heavily against an affirmative finding that the applicant has maintained competency. See In re Reinstatement of Essman, 1987 OK 102, 749 P.2d 103. Unfortunately, Petitioner here, has failed to meet that exacting standard.

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Bluebook (online)
2016 OK 68, 376 P.3d 208, 2016 Okla. LEXIS 70, 2016 WL 3342053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-reinstatement-of-drain-okla-2016.