E-filing Ineptitude Results in Suspension and Censure
By Matthew S. Mulqueen, Litigation News Contributing Editor – August 11, 2016

Failure to acquire the requisite technological proficiency for electronic filing of court documents can lead to harsh disciplinary action, as one sole practitioner recently discovered in State ex. Rel. Oklahoma Bar Association v. Oliver, 2016 OK 37 (2016). Despite the attorney's expertise in the substantive law, his lack of computer skills ultimately led to his permanent suspension from practice before a bankruptcy court, and later, censure by the Supreme Court of Oklahoma. The case serves as a stark reminder that ignorance is not bliss, and that an attorney's ethical duty of competence and care requires staying up to speed on developments in the legal practice, including technological changes.

E-filing Failures Lead to Permanent Suspension from Bankruptcy Court
The attorney was admitted to the Oklahoma bar in 1967, and had about 30 years of experience practicing before the bankruptcy courts. He had no prior record of disciplinary complaints or actions. When he failed to comply with court e-filing requirements, however, the U.S. Bankruptcy Court for the Western District of Oklahoma suspended him twice on a temporary basis. The lawyer's suspension became permanent after he failed to comply with a court order to correctly submit nine "homework" documents without any rules or typographical errors, and to provide confirmation that he had associated with another attorney willing and qualified to assist him with his bankruptcy filings. In the permanent suspension order, the bankruptcy court concluded that the suspended attorney had defied the order by paying another lawyer $1,000 to ghostwrite the homework documents.

Failure to Report Suspension Leads to Censure by Oklahoma Supreme Court
The suspended attorney then failed to comply with Rule 7.7 of Oklahoma's Rules Governing Disciplinary Proceedings, which requires Oklahoma attorneys to report within 20 days any disciplinary action imposed by another jurisdiction. The rule provides that failure to properly report in itself is grounds for discipline. He also did not timely notify his clients of his suspension.

At his hearing before the Oklahoma Bar Association's Professional Responsibility Tribunal, the suspended lawyer pled ignorance of Rule 7.7, and acknowledged his "lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations in filing electronic pleadings." He also denied hiring an attorney to ghostwrite his bankruptcy court homework. The lawyer assisting the suspended attorney testified that he had not been hired to ghostwrite any documents and that he had called the bankruptcy court clerk to determine the extent of assistance he was permitted to provide.

The tribunal panel recommended that the attorney be disciplined with public censure. The prosecutorial arm of the Oklahoma Bar Association recommended discipline ranging from public censure to a six month suspension from the panel of law.

In a 5–2 decision, the Supreme Court of Oklahoma ordered public censure and payment of the costs of the proceeding and "encourage[d] [the attorney] to continue to improve his computer skills, or better, to hire an adept administrative assistant to do his pleadings." In so holding, the majority found insufficient evidence of a violation of the bankruptcy court's order, as the suspended attorney obtained legal assistance as required and did not hire an attorney to ghostwrite his homework. Nor did the majority find that the lawyer had intentionally concealed his suspension. As such, the Supreme Court of Oklahoma concluded that the attorney's suspension was due to a lack of technological proficiency, which, standing alone, did not disqualify the suspended attorney from practice.

By contrast, the dissent deemed the attorney unfit to practice and would have suspended the attorney for two years and one day in the interest of protecting the public, courts, and legal profession. Focusing on the lawyer's multiple violations of court rules and orders, the dissent concluded he had (1) "in both form and substance demonstrated incompetency to practice law" before the bankruptcy court, (2) "failed to make honest attempts to improve," (3) violated the bankruptcy court order, (4) "displayed a profound lack of candor," (5) "failed to notify this court of his suspensions," and (6) caused the closure of several clients' cases due to his failure to provide timely notification of his suspension.

Maintain Knowledge of E-Filing and Applicable Ethics Rules
"Rule 1.1 of the ABA Model Rules of Professional Conduct emphasizes the importance of preparation reasonably necessary for competent representation," notes Scott E. Reiser, Roseland, NJ, cochair of the ABA Section of Litigation's Ethics & Professionalism Committee. Rule 1.1 makes clear that an attorney must also "maintain competence" on an ongoing basis, adds Reiser. Comment 8 to Rule 1.1, for example, states that an attorney "should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."

Keeping up with changes in the relevant technology is "a greater burden on those who lack the support staff," observes William S. Katchen, Florham Park, NJ, chair of the Conflicts and Ethics Subcommittee of the Section of Litigation's Bankruptcy & Insolvency Litigation Committee. E-filing errors may increase with the "enlarging population of attorneys who are 'downsizing' or remaining in small firms," and the growing numbers of sole practitioners who are leaving large firms, adds Katchen, a sole practitioner.

Regardless of the administrative burden, "an improper filing puts a client in jeopardy" notes Reiser. The key is to "know the rules" and to maintain the requisite knowledge and skill by keeping alert, he adds. "E-filing was widely communicated by the Courts, so no one was surprised by the Rules' enactment," agrees Katchen.

Sometimes, maintaining competence simply means calling on others for help, add Katchen and Reiser. In Katchen's experience, courthouse "personnel are always happy to help." The disciplined Oklahoma attorney could have avoided his censure by hiring a competent paralegal or administrative assistant, adds Reiser. At the end of the day, "this seems like something that should be curable," Reiser concludes.

Keywords: ethics, e-filing, censure, technology

 
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