IN THE MATTER OF THE REINSTATEMENT OF DUKE

2016 OK 58, 382 P.3d 501, 2016 WL 3079848, 2016 Okla. LEXIS 59
Supreme Court of Oklahoma·Decided May 24, 2016·No. Case Number: SCBD-6200·Published·Cited by 18 cases

Opinions

COLBERT, J.

¶ 1 The principle question before this Court is whether Petitioner, Brian E. Duke, has presented clear and convincing evidence that he possesses the competency and learning in the law necessary to be reinstated to the roll of attorneys and membership in the Oklahoma Bar Association (OBA). This Court approved Petitioner’s application for resignation from the OBA sixteen (16) years ago, pending disciplinary proceedings. After a de novo review of the record, this Court holds Petitioner did not demonstrate by clear and convincing evidence that he possesses the requisite competency and learning in the law for readmission to the practice of law in Oklahoma.

FACTS

¶ 2 Petitioner was admitted to the Oklahoma Bar Association in 1991 following graduation from the University of Oklahoma College of Law and successful completion of the Oklahoma Bar Examination that same year. Thereafter, Petitioner practiced law as a solo practitioner from 1991 until his resignation from the OBA in 2000.

¶3 On January 19, 2000, Petitioner resigned pending disciplinary action for multiple violations of client neglect, misappropriation of funds, and for failing to properly utilize a client trust account.1 Following his resignation, Petitioner worked as a trainer for West Teleservices Corporation from 2000 to 2008. Beginning in 2007, Petitioner began writing advanced certification courses for the National Association of Legal Assistants (NALA) part-time. Some time in 2008, Petitioner began writing courses for legal assistant certifications full-time. In May 2014, Petitioner accepted his current position as a paralegal for a solo practitioner in Tahleq-uah, Oklahoma.

¶ 4 On November 19, 2014, Petitioner filed this application for reinstatement. The Professional Responsibility Tribunal (PRT) held a hearing on February 12, 2016. Several witnesses vouched for Petitioner’s good moral character, excellent work ethic, and his remorse concerning his prior misconduct. The record demonstrated Petitioner’s understanding of the wrongfulness of his misconduct and the discredit it has brought to the legal profession. Further, since Petitioner’s [503]*503resignation, Petitioner has refrained from engaging in any activities that would impede or negatively reflect upon the reinstatement application. However, during the course of the proceedings, it came to light that Petitioner had yet to comply with the disgorgement orders from the United States Bankruptcy Court and Petitioner failed to produce tax returns for the years 2000-2003. At the conclusion of the proceedings, the PRT permitted the record to remain open t’o allow Petitioner the opportunity to cure the deficiencies raised at the hearing.

¶ 5 On June 4, 2015, the PRT filed its report pursuant to Rule 11.5 of the RGDP. The PRT found that Petitioner had established by clear and convincing evidence that he had not engaged in the unauthorized practice of law and possesses the competency and learning in the law required for admission to practice law in Oklahoma. However, the PRT found that Petitioner failed to establish by clear and convincing evidence that he had complied with all procedural rules governing the reinstatement of attorneys—namely, that Petitioner had timely complied with Rule 9.12 and that Petitioner had satisfied the heightened burden of proof of qualifications than one seeking admission for the first time.

¶ 6 In determining that all the procedural requirements had not been satisfied by clear and convincing evidence, the PRT found that Petitioner: (1) failed to produce tax returns for the years 2000-2003; (2) failed to comply with the United States Bankruptcy Court’s Orders to disgorge fees; and (3) failed to timely file the Rule 9.1 affidavit. Based on those findings, the PRT unanimously denied Petitioner’s request for reinstatement noting, “despite ample opportunities provided to do so,” Petitioner had yet to establish by clear and convincing evidence that he had met the burden required for reinstatement.

¶ 7 Petitioner filed a brief in support of his reinstatement on August 13, 2015. The OBA filed its answer brief in support of Petitioner shortly thereafter. In it, the OBA confirmed that it had no objection to the Petitioner’s reinstatement. The OBA asserts that since the filing of the PRT report, Petitioner has filed his (1) Rule 9.1 affidavit,3 (2) paid the disgorgement fees;4 and (3) filed his Federal and State tax returns for the years 2000-2003. As a result, OBA contends that Petitioner has now satisfied the criteria at issue and is eligible for reinstatemént.

STANDARD OF REVIEW

¶ 8 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 aide 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 [504]*50411.5, Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit. 5, ch. 1, app. 1-A, However, those recommendations are merely advisory as it is this Court’s “ultimate responsibility” to decide whether reinstatement is warranted. Blevins, 2002 OK 78, ¶ 3, 59 P.3d at 511.

¶ 9 Resignation pending discipline is tantamount to disbarment in that an. attorney must comply with the same procedures for readmittance as would a disbarred counterpart. Rule 11.4, RGDP. Rule 11.4 requires that, when applying for reinstatement, the applicant’s burden of proof is more onerous than one seeking admission to the OBA for the first time. Id. An applicant must present clear and convincing evidence that reinstatement is appropriate and that the applicant’s conduct conforms to the high standards required of Oklahoma Bar members. In re Reinstatement of Munson, 2010 OK 27, ¶ 12, 236 P.3d 96, 101.

¶ 10 This Court considers eight separate factors when considering a reinstatement petition:

(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; (3) 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.

In re Reinstatement of Munson, 2010 OK 27, ¶ 13, 236 P.3d 96, 101.

¶ 11 This'Court agrees with the PRT that Petitioner failed to establish by clear and convincing evidence that Petitioner has presented stronger proof of qualifications than one seeking admission for the first time, but on slightly different grounds. Specifically, the record is devoid of any evidence that Petitioner has satisfied the mandatory continuing legal education requirements imposed upon Oklahoma Bar members. And, based on Petitioner’s sixteen .(16) year absence from the practice of law, Petitioner must now retake the Oklahoma Bar Examination as a prerequisite for readmission. This Court determines that the PRT’s findings as to all the other factors relevant to reinstatement are meritorious.

COMPETENCY AND LEARNING IN THE LAW

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IN THE MATTER OF THE REINSTATEMENT OF DUKE, 2016 OK 58, 382 P.3d 501, 2016 WL 3079848, 2016 Okla. LEXIS 59 (Okla. 2016).

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