RECENT DEVELOPMENTS O.R.P.C.

1. RECENT DEVELOPMENTSO.R.P.C. Gina Hendryx Ethics Counsel Oklahoma Bar Association

2. CLE/MCLE • MCLE • No paper filing if in compliance, everything can be done through email or via the web • Check status at www.okbar.org on myokbar link • No response needed if in compliance; i.e., you have enough CLE hours • Ethics Counsel/Ethics Questions • Gina Hendryx 416-7083

3. MANDATORY IOLTA • Client funds which are: • Nominal in amount or • To be held for a short period of time • Must be placed in an interest bearing trust account with the interest going to the Oklahoma Bar Foundation • Nominal–determined by: • the amount of interest the funds would earn while deposited • the cost of establishing and administering the account • the capability of the bank to calculate and pay the interest to a client • If not nominal: • if you have a client’s funds that will earn interest for the client’s benefit, the funds should go into an interest bearing account for the benefit of the client. • Practical Effects • attorney must complete an annual trust account certificate which is part of the dues statement

4. RULES OF PROFESSIONAL CONDUCT COMMITTEE • Conducted a review of the entire Oklahoma Rules of Professional Conduct • Changes adopted were based upon the ABA Model Rules of Professional Conduct/E2K Committee • Proposed rule changes may be viewed at www.okbar.org, under Ethics and Professionalism link • Link to proposed rule changes were published in the Bar Journal • Public Hearings Scheduled

5. MODEL RULES OF PROFESSIONAL CONDUCT • No major update to ABA Model Rules since 1983 • No major update in Oklahoma since adoption of Model Rules in 1988 • Changes needed to unify rules from state to state • 44 states use Model Rules, but many have significant variations—numbering variations, etc.

6. MODEL RULES OF PROFESSIONAL CONDUCT • GENERAL PURPOSES OF REVIEW: • Clarify lawyer’s duty to communicate with clients • Replaced “consent” with “informed consent, in writing” throughout the Rules • “Informed consent” appears 17 times • “Confirmed in writing” appears 10 times • Clarify lawyer’s duty to clients in specific areas • Rule 1.8--Client-Lawyer sexual relationships • Rule 1.15--Advance Fees and payments for expenses not yet earned must stay in trust account

7. MODEL RULES OF PROFESSIONAL CONDUCT • GENERAL PURPOSES OF REVIEW: • Respond to changing organization and structure of law practices • Eliminated imputation of most personal conflicts • Extended conflict provisions to mediators • Expanded sale of law practice • Expanded disciplinary enforcement over lawyers not admitted in this jurisdiction • Respond to technological advances

8. RULES OF PROFESSIONAL CONDUCT COMMITTEE • Many changes were stylistic or simply clarified the old rules • Rule 1.5: Rule now requires that a contingency fee contract be signed by the client and include language which clearly identifies what expenses the client will be responsible for if the client is not the prevailing party

9. CURRENT OKLAHOMA RULES RETAINED • Five current Oklahoma Rules were retained in their entirety: • Rule 3.6 (Trial Publicity) • Rule 5.7 (Law Related Services) • Rule 6.1 (Pro Bono) • (ABA rule—lawyers should aspire to provide 50 hours of pro bono services) • Rule 6.4 (Law Reform Activities) • Rule 7.4 (Communicating Fields of Practice)

10. NO SUBSTANTIAL CHANGES • Rule 1.1 Competence • Rule 1.3 Diligence • Rule 1.9 Conflicts with Former Clients • “Informed consent, confirmed in writing” added • Rule 1.12 Conflicts and Former Judge, Arbitrator, etc. • Mediators added • Rule 1.16 Declining Representation • Rule 2.1 Attorney as Advisor

11. NO SUBSTANTIAL CHANGES • Rule 3.1 Meritorious Claims and Contentions • Rule 3.4 Fairness to Opposing Party and Counsel • Rule 3.7 Lawyer as Witness • Rule 3.8 Special Responsibilities of Prosecutor • Rule 4.1 Truthfulness in Statements made to Others • Rule 5.2 Responsibilities of Subordinate Lawyer

12. RULE 1.6CLIENT CONFIDENTIALITY • Allows disclosure of confidential information to prevent: • Reasonably certain death or substantial bodily harm • The client from committing a crime • The client from committing a fraud that is reasonably certain to result in substantial financial injury in which the lawyer’s services have been used • Substantial injury to the financial interests of another in which the lawyer’s services have been used • Allows disclosure of confidential information so that the lawyer can obtain advice on the lawyer’s compliance with the Rules of Professional Conduct

13. RULE 1.7CONFLICTS OF INTEREST • A lawyer may no longer represent a client with whom the lawyer has a concurrent conflict of interest, which exists if: • Representation of one client will be directly adverse to another client; or • There is significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client • Rule now requires “Informed Consent, confirmed in writing”

14. RULE 1.7CONFLICTS OF INTEREST • Proposed Definition of Informed Consent: • “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. • Must be in writing

15. RULE 1.7CONFLICTS OF INTEREST • Comment—Almost entirely new • Reorganized to better explain when a conflict is present and what to do • [1]-[5] Introduction • [6]-[22] General Conflict Analysis • [23]-[25] Litigation Conflicts • [26]-[28] Non-litigation Conflicts • [29]-[33] Common Representation • [34]-[35] Organizational Client Conflicts • Significant language on the prohibition of attorney-client sexual relations

16. RULE 1.8TRANSACTIONS WITH CLIENTS • A lawyer may now pay court costs and litigation expenses on behalf of an indigent client • Specific prohibition of sexual relations with a client unless • A consensual sexual relationship existed prior to the attorney-client relationship and • The relationship does not violate Rule 1.7

17. RULE 1.8(C) • (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, for the lawyer or a person related to the lawyer. Nor shall the lawyer prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative. • NOTE: The proposed ABA version of Rule 1.8 defines related persons as “a relative or individual with whom the lawyer or the client maintains a close familial relationship. This HAS NOT been adopted in Oklahoma.

18. RULE 1.10IMPUTATION OF CONFLICTS • A conflict is no longer imputed on an entire firm where a lawyer has a “personal conflict” if • the personal conflict does not represent a “significant risk of materially limiting” representation by the other lawyers in the firm • When the attorney is interviewing with an opponent of the lawyer’s client • When an attorney has a related business interest to his clients • When an attorney is representing different clients in the same or substantially related matters are closely related by blood or marriage

19. RULE 1.13ORGANIZATION AS CLIENT • Language was added to clarify when an attorney can reveal confidential information of the organization • Language was added to provide guidance to an attorney discharged for revealing information • The attorney may “proceed as the lawyer reasonably believes is necessary” to assure that the organization’s highest authority knows of the discharge

20. RULE 1.14CLIENT WITH DIMINISHED CAPACITY • Language was added to include protective measures an attorney can take if the client is at risk of substantial physical, financial, or other harm • Attorney may take reasonably necessary protective action including • Consulting with individuals who can protect the client • Seek the appointment of a guardian

21. RULE 1.15SAFEKEEPING PROPERTY • Rule now specifically allows for depositing a lawyer’s own funds into the lawyer’s trust account for paying bank service charges • Rule now requires that all advance payments for fees or expenses be placed into the lawyer’s trust account, and may only be withdrawn as fees are earned or expenses incurred • Rule now makes specific provision that a lawyer may not place a lien on or apply to fees property entrusted to the lawyer “for a specific purpose”

22. RULE 1.17SALE OF A LAW PRACTICE • Allows for the sale of a law practice or an area of practice if the lawyer stops practicing entirely or leaves the geographical area in which the practice is conducted • Allows for the sale of the practice or area of practice to one or more lawyers or law firms • Multiple buyers are allowed

23. RULE 3.3 CANDOR TO THE TRIBUNAL • Language added requires an attorney to correct a false statement of material fact or law if the lawyer knowingly made the statement • Language added now requires a lawyer to take reasonable remedial measures, including disclosure to the tribunal, if the lawyer knows that a person has engaged in criminal or fraudulent conduct related to the proceeding

24. RULE 4.4RESPECT FOR RIGHTS OF THIRD PERSONS • Rule now only requires that the recipient of an inadvertently sent document promptly notify the sender • Previous ABA formal opinion withdrawn • Instructed recipients to not review the inadvertently sent documents—no longer required • Comment—whether the recipient should return the documents is beyond the scope of these rules

25. RULE 5.5 UPL AND MULTI JURIS. PRACTICE OF LAW • A lawyer, not licensed in Oklahoma may provide legal services in Oklahoma that: • Are undertaken in association with an Oklahoma attorney who actively participates in the matter • Are related to matters in which the attorney is admitted pro hac vice • Are related to an arbitration or mediation, if the services arise out of the lawyer’s practice in the jurisdiction in which he is licensed

26. RULE 5.5 UPL AND MULTI JURIS. PRACTICE OF LAW • A lawyer not licensed in Oklahoma may also provide legal services in Oklahoma that: • Are provided to the lawyer’s employer in connection with the employer’s matters so long as the lawyer does not provide legal services to third parties and does not require admission pro hac vice • Are authorized by federal law

27. RULE 7.2 ADVERTISING • Language added now includes “electronic media” to the list of appropriate advertising • Includes internet and email advertising • But see Rule 7.3 for prohibition on solicitation of clients via email • Language added to clarify the exceptions to the reciprocal referral rule • Rule no longer requires that ads be kept for three years

28. RULE 7.2(b)RECIPROCAL REFERRAL • (b) A lawyer shall not give anything of value, directly or indirectly, to a person for recommending the lawyer's services except that a lawyer may • (1) pay the reasonable costs of advertisements; • (2) pay the usual charges of a legal service plan or qualified lawyer referral service. • A qualified lawyer referral service is a lawyer referral service that has been approved by the OBA; • (3) pay for a law practice in accordance with Rule 1.17; and • (4) without paying anything solely for the referral, refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if • (i) the reciprocal referral agreement is not exclusive, and • (ii) the client is informed of the existence and nature of the agreement.

29. RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS • Language added to prohibit “real-time electronic” solicitation of clients (email) • Language was moved from Rule 7.2 to this rule requiring that the phrase “Advertising Material” be included in the solicitation (including emails to a prospective client)

30. RULE 8.5DISCIPLINARY AUTHORITY • Language was added that subjects an attorney licensed in another state but practicing in this state (pro hac vice) to discipline in Oklahoma if the lawyer provides or offers to provide any legal service in this state • Lawyer also may be subject to disciplinary proceedings in this state and the state in which he is licensed

31. DIVERSION PROGRAM • In matters involving “lesser conduct”, an attorney may enter a “diversion” program • General Counsel’s office and the Professional Responsibility Commission makes determination • How determined? • Nature of misconduct, i.e. “lesser conduct” • whether it appears to be an isolated event • whether it would help the respondent • whether participating would further jeopardize the public • What is lesser conduct? • defined by what it is not • can’t involve misappropriation of funds • if the attorney has been previously reprimanded for the same behavior • if the attorney has been previously reprimanded for anything in the previous three years

32. OUT OF STATE ATTORNEY’S ACT • Act was repealed by Legislature but is now replaced by an Oklahoma Supreme Court Rule • Out of State Attorneys need to • Register with OBA, submit letters of good standing, and pay the non-refundable application fee ($350) • Out of state attorneys no longer need to register with the Oklahoma Tax Commission and are no longer limited on the number of admissions • Any Questions? • Visit www.okbar.org, then go to “Quick links” section under “Out of State Attorneys”, or • call Gina Hendryx

33. DISCIPLINE UPDATE2005 • RESPOND • If you ever get a letter from the General Counsel’s office, RESPOND • Extensions of time will be freely given if you need more time to respond • Rule 5.2, RGDP, it is a violation of the rules if you don’t respond • Gina Hendryx • 416 7083

34. GRIEVANCES 20012002 20032004 • IC 1078 1165 1122 1215 • DC 473 448 453 433 • TOT 1551 1613 1575 1648

35. TYPE OF MISCONDUCT AND AREA OF PRACTICE • Type of MisconductArea of Practice • Neglect 44% Criminal 25% • Misrepresentation 11% Family 22% • Incompetence 11% Litigation 18% • Conflict of Interest 10% Estate/Probate 8% • Personal Behavior 9% Personal Injury 8% • Trust Violations 9% Bankruptcy 5% • Excessive Fee 3% Administrative 3% • Improper Advert. 1% Real Property 3% • UPL 1% Workers’ Comp 2% • Other 1% Corporate 1% • Criminal Conv. 0% Commercial 1%

36. DISCIPLINARY CASES2004 • 2 attorneys received Public Censures • 4 attorneys were suspended for periods of six months to two years and one day • 1 attorney was disbarred • 9 attorneys submitted Resignations Pending Disciplinary Proceedings

37. DISCIPLINARY CASES2005 • 3 attorneys received public censures • 1 attorney was suspended for 60 days • 1 attorney was suspended for 6 months • 3 attorneys were suspended for 1 year • 9 attorneys submitted Resignations Pending Disciplinary Proceedings

38. DISCIPLINARY CASES • Wagener, 2005 OK 3 • Anderson, 2005 OK 9 • Chapman, 2005 OK 16 • Funk, 2005 OK 26 • Downes, 2005 OK 33 • Benefield, 2005 OK 75 • Patterson, 2005 OK 76 • Loeliger, 2005 OK 79 • Malloy, pending • Pacenza, pending • Harrah, pending with OSC • Garrett, pending with OSC • Rogers, pending with OSC • Berger, pending with OSC

39. RESIGNATIONS PENDING DISCIPLINARY PROCEEDINGS • Attorney signs an affidavit of recognition of charges pending • Attorney does NOT admit to facts • Functional equivalent of disbarment • Attorney may not practice or apply for reinstatement for 5 years • Usually involves serious violations of ORPC • Conversion, criminal charges, etc.

40. RESIGNATIONS PENDING DISCIPLINARY PROCEEDINGS • Southern, 2005 OK 18 • Hubbard, 2005 OK 19 • Speer, 2005 OK 24 • Parker, 2005 OK 31 • Martin, 2005 OK 61 • Wagener, 2005 OK 80 • Pariseau, 2005 OK 85 • Scaggs, pending with OSC • Robelen, pending with OSC

41. REINSTATEMENTS • Standard for reinstatement is HIGHER than when obtaining an OBA license the first time • Adversarial proceeding before the PRT • General Counsel’s office, by rule, is to present witnesses who are in OPPOSITION to the reinstatement • Generally, if suspension was for DUES or CLE, then stipulations, letters of recommendation, and testimony of applicant are sufficient for reinstatement

42. REINSTATEMENTS • Two types of Reinstatements • Reinstatements where discipline has not been previously entered • Attorney being stricken for failing to pay dues or failing to complete CLE • Attorney submitting regular resignation with the Executive Director of the OBA • Reinstatements where discipline was entered previously by Supreme Court • Attorney has previously been suspended by the Oklahoma Supreme Court for two years and one day, disbarred, or submitted a Resignation Pending Disciplinary Proceedings

43. REINSTATEMENTS • Where no discipline was entered, the Supreme Court focuses on: • the present moral fitness of the applicant, • his present competence in legal skills, • whether he has engaged in the unauthorized practice of law, and • whether he has complied with the rule-mandated requirements for reinstatement.

44. REINSTATEMENTS • Where a finding of discipline was previously entered, the Supreme Court focuses on: • (1) 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) applicant's character, maturity and experience when he resigned, and • (8) present legal competence.

45. REINSTATEMENTS • Burkett, 2005 OK 23 Granted • Rahhal, 2005 OK 25 Granted • Seelye, 2005 OK 34 Denied • Fraley, 2005 OK 39 Denied • Bandy, 2005 OK 42 Granted • Willeford, 2005 OK 50 Granted • Rhoads, 2005 OK 53 Granted • Mollett, 2005 OK 58 Granted • Steward Dismissed • Meek Pending with OSC • Holliman Pending with OSC • Jones Pending with OSC • Bass Pending with OSC • Massey Pending with OSC