The Oklahoma Bar Journal December 2024

been disciplined in the last five years; if it involves dishonesty, deceit, fraud or misrepresen tation by the attorney or if the misconduct constitutes a “serious crime,” which is described as any felony or lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. 42 According to the ORPC, profes sional misconduct is committed in specified ways. These include: 1) violating the ORPC or knowingly assisting or inducing another to do so or doing so through the acts of another; 2) committing a criminal act that reflects adversely on the attorney’s honesty, trustworthi ness or fitness as a lawyer in other respects; 3) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 4) engag ing in conduct that is prejudicial to the administration of justice. 43 Comment [2] to Rule 8.4 of the ORPC is informative and provides: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of per sonal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire crim inal law, a lawyer should be professionally answerable only for offenses that indicate lack of

jurisdiction within 20 days of the final order of discipline. Failure to do so is grounds for discipline. 40 Although not presently required by the RGDP, an attor ney may have an implicit duty to self-report a criminal convic tion, at least to the extent that the conviction has been previously determined to demonstrate an unfitness to practice law. 41 DISCIPLINE DIVERSION PROGRAM If “lesser misconduct” is at issue, the GC can refer an attor ney to the OBA’s Discipline Diversion Program. The GC must consider the following criteria before such a referral: 1) the nature of the miscon duct alleged, 2) whether the alleged mis conduct appears to be an isolated event, 3) whether participation in the “Lesser misconduct” is mis conduct that does not warrant a sanction restricting an attorney’s license to practice law. The RGDP does not define “lesser miscon duct” as to what it is but rather to what it is not. Misconduct cannot be lesser misconduct if it involves the misappropriation of funds; if it resulted or is likely to result in substantial prejudice to a client or another person; if the respondent attorney has been publicly disci plined in the last three years; if it is of the same nature as miscon duct for which the attorney has diversionary program could benefit the respondent and 4) whether participation in the diversionary program might jeopardize protection of the public.

Deliberate misrepresentation in the response to a grievance is grounds for discipline. The failure to respond within 20 days after service of the grievance or recital is grounds for discipline. 35 OBA members are required to provide a current address to the association and inform the asso ciation of any changes in address in accordance with the require ments of the Rules Creating and Controlling the Oklahoma Bar Association. 36 Compliance with this requirement by OBA mem bers is critical. Proof of mailing to an attorney at that address is sufficient to prove service in the disciplinary process. Service of any and all correspondence, notice and any formal complaint may be made on a respondent lawyer, in person or by mail, directed to the attorney at the last address shown on the official roster of the OBA. 37 In connection with a disci plinary matter, an attorney is for bidden from knowingly making a false statement of a material fact, failing to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly failing to respond to a lawful demand for information from a disciplinary matter; this rule does not require disclosure of informa tion otherwise protected. 38 A lawyer who knows that another lawyer has committed a violation of the ORPC that raises a substantial question as to that law yer’s honesty, trustworthiness or fitness as a lawyer in other respects is required to inform the appropri ate professional authority. 39 Oklahoma lawyers are required to notify the GC whenever dis cipline for lawyer misconduct has been imposed in another

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL