Opinion
Case No. 117,044
12-13-2019
In re the Marriage of: Clayton M. COLLINS, Petitioner/Appellee, v. Heather D. COLLINS, Respondent, and Richard Ducote, Esq., Appellant.
SUBSTITUTE OPINION AFTER REHEARING THE COURT'S PRIOR OPINION HAVING BEEN WITHDRAWN
:
¶1 Richard Ducote (Attorney) appeals the trial court's April 30, 2018, order denying a motion to associate Attorney, an out-of-state lawyer, to practice before the Rogers County District Court. Based on our review of the facts and applicable law, we affirm in part and reverse in part.
This Court filed its original Opinion on May 6, 2019. Attorney filed a petition for rehearing on May 28, 2019. By Order entered on July 24, 2019, this Court granted the petition for rehearing. The original Opinion is hereby withdrawn and this Opinion on Rehearing is substituted in its place.
BACKGROUND
¶2 Clayton Collins (Father) and Heather Collins (Mother) have been litigating custody of their minor child since their divorce. Mother hired Attorney, who is a member of the Louisiana and Pennsylvania bar associations, as counsel. Mother's local counsel filed a motion to associate counsel on October 12, 2017. The trial court ultimately found Attorney ineligible for admission to practice before it and denied the motion to associate counsel. Attorney appeals.
STANDARD OF REVIEW
It is well settled that permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge. 5 Am.Jur. p. 572; Manning v. Roanoke & T.R. Co ., 122 N.C. 824, 28 S.E. 963 ; Youmans v. Hanna , 35 N.D. 479, 160 N.W. 705 ; Note 24 L.R.A., N.S., 754.
¶3 Smith v. Brock , 1975 OK 27, ¶ 20, 532 P.2d 843, 848. See also 5 O.S.2011, Ch. 1, App. 1, Art. II, § 5(C) ("Admission of an out-of-state attorney to appear in any proceeding is discretionary for the judge, hearing officer or other decision-making or recommending official presiding over the proceedings."). Smith further held:
If, after evidentiary hearing, a trial judge, in the exercise of sound judicial discretion, finds that the admission of an out of state attorney pro hac vice, is fraught with potential abusive misconduct or patent misrepresentations on the part of foreign counsel seeking to be admitted, the application for admission pro hac vice, should be refused.
Id . at ¶ 23.
¶4 The abuse of discretion standard of review followed by this Court is:
A clear abuse-of-discretion standard includes appellate review of both fact and law issues. Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591, 608. An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law, or where there is no rational basis in evidence for the ruling. Fent v. Oklahoma Natural Gas Co. , 2001 OK 35, ¶ 12, 27 P.3d 477, 481.
CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 2012 OK 22, ¶ 3, 278 P.3d 586, 588.
ANALYSIS
¶5 On appeal, Attorney seeks reversal of the trial court's findings that he committed fraud and made material misrepresentations or omissions of fact on his Oklahoma Bar Association (OBA) application.
¶6 Attorney has standing to seek this relief, as this "is an end-of-the-line disposition of a matter ancillary to the main litigation as to [Attorney], a non-party aggrieved by the order under the circumstances presented." See Hammonds v. Osteopathic Hosp. Founders Ass'n , 1996 OK 54, 917 P.2d 6, and Toxic Waste Impact Group, Inc. v. Leavitt , 1994 OK 148, 890 P.2d 906.
See Oklahoma Supreme Court Order, September 10, 2018.
¶7 Before being admitted pro hac vice , an out-of-state attorney must submit an application to the OBA. Title 5 O.S.2011, Ch. 1, App. 1, Art. II, § 5(B) provides:
An out-of-state attorney may be permitted to practice before Oklahoma courts or tribunals solely for the purpose of participating in a proceeding in which he or she has been employed upon the following express conditions:
1. The out-of-state attorney shall make application with the Oklahoma Bar Association, in such form and according to the procedure approved by the Board of Governors of the Oklahoma Bar Association. Said application shall include an affidavit (or unsworn statement under penalty of perjury pursuant to 12 O.S. § 426 ) which: (a) lists each state or territory of the United States, the District of Columbia, or foreign country in which the out-of-state attorney is admitted; and (b) states that the out-of-state attorney is currently in good standing in such jurisdictions. If an out-of-state attorney commits actual fraud in representing any material fact in the affidavit or unsworn statement under penalty of perjury provided herein, that attorney shall be permanently ineligible for admission
to an Oklahoma court or tribunal pursuant to this Rule, or for admission to the Oklahoma Bar Association. The out-of-state attorney shall file a separate application with respect to each proceeding in which he or she seeks to practice.
¶8 In the present case, Attorney filed an application with the OBA on September 21, 2017. Two questions in the application, relevant to this appeal, are set out below.
6. Have you ever received public discipline including, but not limited to, suspension or disbarment, by any organization with authority to discipline attorneys at law except as hereinafter provided (Give particulars; e.g. court, discipline authority, type of discipline, date, status):
7. Have you ever had any certificate or privilege to appear and practice before any regulatory or administrative body suspended or revoked except as hereinafter provided (Give particulars; e.g. administrative body, date, status of suspension or reinstatement):
To Questions 6 and 7, Attorney stated "No," "under penalty of perjury." The OBA granted Attorney's application to appear as an out-of-state attorney on September 25, 2017.
¶9 On October 12, 2017, Mother filed a motion to associate counsel, requesting the court permit Attorney to practice in the above cause. By order entered the same date, the trial court granted the motion, after being informed by Mother's local counsel that Father had no objections to Attorney's admission.
¶10 However, Father did not have notice of the motion to associate counsel, had not seen the order admitting Attorney to practice until after the fact, and did object to Attorney's admission to practice. Father filed a motion to vacate the order of admission on October 16, 2017. Father filed an objection to Attorney's admission to practice based on Attorney's alleged "checkered history of sanctions and reprimands by Courts in various jurisdictions" and that his failure to disclose them on the application was fraudulent and a material misrepresentation of facts. Attorney responded, asserting monetary litigation sanctions did not constitute attorney discipline. Further, he asserted he had not been disciplined or had any certificate or privilege to appear and practice before any regulatory or administrative body suspended or revoked. Thus, he contended he correctly answered Questions 6 and 7. The trial court's October 12, 2017 order admitting Attorney to practice was subsequently vacated.
¶11 An evidentiary hearing on the merits of Attorney's admission was held on December 5, 2017, and March 8, 2018. The parties submitted evidentiary material in support of their respective positions at the hearing.
¶12 Attorney testified he believed the phrase "any organization with authority to discipline attorneys" in Question 6 meant the disciplinary authority of the state and federal bars. Accordingly, he did not disclose on the OBA application that his pro hac vice status had been denied or revoked or that he had been monetarily sanctioned by a trial or appellate court.
Attorney testified he has been admitted pro hac vice in 44 states, but has had that status revoked or denied in several states. In addition, Attorney has been monetarily sanctioned by a trial or appellate court on at least four occasions. Finally, Attorney has not been suspended or disbarred by any court or bar association.
¶13 The OBA General Counsel also submitted a letter, dated December 5, 2017, which stated:
[ ]Based upon the submission, it is my opinion that the answers to questions six and seven to the Out of State Attorney Registration application were not accurate. [Attorney] should have included his sanctions from previous courts, as well as, his pro hac vice admission denials.
¶14 By minute order entered on April 25, 2018, the trial court found Attorney ineligible for admission to practice before the court and denied Mother's motion to associate counsel. The order provides, in relevant part:
IV.
That in his Application, [Attorney] did not honestly and forthrightly respond to Question No. 6 regarding measures of discipline imposed upon him by trial and appellate Courts in other jurisdictions.
[ ]Said sanctions should have been mentioned in [Attorney's] answer to Question No. 6. Failing to mention them is a fraudulent and material omission, the purpose of which was obviously to mislead the OBA and this Court into believing that [Attorney] had not been disciplined or sanctioned over the course of his career. ...
V.
That in his Application, [Attorney] did not honestly and forthrightly respond to Question No. 7 regarding the denials and/or revocations of previous privileges to appear before other Courts in other jurisdictions.
Question No. 7 calls for disclosure of any situation in which [Attorney's] privilege to appear before a Court has been denied or revoked. At trial, [Attorney] testified his pro hac vice status had been revoked in at least five (5) other jurisdictions. He further testified that he had been denied pro hac vice status in three (3) jurisdictions. Interestingly, he mentions none of these instances in his sworn answer to Question No. 7. These facts are material to the Question posed, and a failure to disclose same is a fraudulent and material omission designed to do nothing else but mislead the OBA and this Court.
VI.
That [Attorney's] failure to disclose prior Court-imposed sanctions, prior instances of him being denied pro hac vice admission by other Courts, and prior instances of his pro hac vice status being revoked by other Courts, constitute fraudulent and material misrepresentations of fact within his OBA Application. (Emphasis in original).
¶15 The trial court incorporated its findings from the April 25, 2018 minute order into an Order Denying Respondent's Motion to Associate Counsel, filed April 30, 2018.
¶16 On appeal, Attorney contends he did not commit fraud in his OBA application in response to Questions 6 and 7. Again, Question 6 provides:
6. Have you ever received public discipline including, but not limited to, suspension or disbarment, by any organization with authority to discipline attorneys at law except as hereinafter provided (Give particulars; e.g. court, discipline authority, type of discipline, date, status):
¶17 Attorney contends a monetary sanction by a trial court is not within the ambit of Question 6. Father disagrees, asserting Question 6 is broad and encompasses any sort of discipline, without limitation.
¶18 The trial court rejected Attorney's assertion:
[i]f an out-of-state attorney commits actual fraud in representing any material fact in the affidavit or unsworn statement under penalty of perjury provided herein, that attorney shall be permanently ineligible for admission.... Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S.2011, Ch. 1, App. 1, Art. 2, § 5(B)(1).
...
[ ]Question No. 6 clearly and expressly addresses discipline imposed by a Court. Sanctions are penalties, and penalties are a form of discipline. See , SANCTION, Black's Law Dictionary (7th ed. 1999). To suggest that Question No. 6 does not cover such instances is evasive and disingenuous. [Attorney's] answer of "No" to Question No. 6 is fraudulent insofar as he knew, or should have known, that the answer was not true at the time he submitted it.
¶19 In Oklahoma, proof of actual fraud requires a showing that 1) there was a false misrepresentation of a material fact, 2) the declarant knew it was false or it was made recklessly without knowledge of the truth, 3) the misrepresentation was made with intent that it be acted upon, and 4) it was relied on by the other party to his or her own detriment. See Bowman v. Presley , 2009 OK 48, ¶ 13, 212 P.3d 1210, 1218 ; accord Estrada v. Kriz , 2015 OK CIV APP 19, ¶ 14, 345 P.3d 403, 408. Fraud is never presumed and must be proved by clear and convincing evidence. Bowman , at ¶ 13.
¶20 The trial court found Question 6 clearly and expressly addresses sanctions imposed by a court and, as a result, Attorney's failure to disclose monetary sanctions imposed by a court was a fraudulent and material omission. ¶21 We disagree. By its plain language, Question 6 only requests an out-of-state attorney disclose information regarding public discipline by any organization, including a court, which has authority to discipline attorneys .
¶22 Discipline is defined as "[p]unishment intended to correct or instruct; esp., a sanction or penalty imposed after an official finding of misconduct." DISCIPLINE, Black's Law Dictionary (7th ed. 1999). A sanction is defined as "a penalty or coercive measure that results from failure to comply with a law, rule, or order." SANCTION, Black's Law Dictionary (7th ed. 1999). A penalty is defined as "[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment or fine." PENALTY, Black's Law Dictionary (7th ed. 1999).
¶23 In the present case, the sanctions appear to have been imposed by a trial tribunal in which Attorney appeared; and no discipline appears to have been imposed by a supervising entity with the power to discipline attorneys. The record provides Attorney is licensed to practice law in Louisiana and Pennsylvania. In addition, Attorney has appeared pro hac vice in other states, including California and Florida, where he was monetarily sanctioned. In each of these states, the state supreme court is the "organization with authority to discipline attorneys." See La. Const. Art. V, § 5 (B) (Louisiana Supreme Court has exclusive original jurisdiction of attorney disciplinary proceedings); Pa.R.D.E. 103 and Yocum v. Commonwealth Penn. Gaming Control Bd. , 639 Pa. 521, 161 A.3d 228, 247 (2017) (Pennsylvania Supreme Court has inherent and exclusive power to supervise and discipline attorneys); Sheller v. Superior Ct. , 158 Cal.App.4th 1697, 71 Cal.Rptr.3d 207, 216 (2008) (California Supreme Court is the sole judicial entity with jurisdiction over attorney discipline; the State Bar acts as its administrative arm); and Art. V, § 15, Fla. Const. (Florida Supreme Court has exclusive jurisdiction over the discipline of attorneys). The same is true in Oklahoma, where the Oklahoma Supreme Court is vested with "original and exclusive jurisdiction over all matters having to do with the admission or discipline of persons admitted to the practice of law in Oklahoma." State ex rel. Oklahoma Bar Ass'n v. Hyde , 2017 OK 59, ¶ 14, 397 P.3d 1286, 1290 (citations omitted). The Supreme Court has a nondelegable responsibility to determine the appropriate discipline. Id . at ¶ 15. Accordingly, while a trial or appellate court may sanction an attorney for improper conduct or to control the proceedings before them to prevent injustice, see e.g. , 12 O.S.2011, § 2011 ; 12 O.S.2011, § 3237, it does not have authority to discipline an attorney.
¶24 Based on the record before the Court, there is no evidence Attorney has been disciplined by an "organization with authority to discipline attorneys at law." Accordingly, because Question 6 is, by its plain language, specifically limited to "discipline" from an "organization with authority to discipline attorneys," Attorney's "No" answer to Question 6 was not obviously incorrect. As fraud may never be presumed but must be proved by clear and convincing evidence, see Bowman , 2009 OK 48, at ¶ 13, 212 P.3d at 1218, the trial court's legal and factual findings that Attorney made fraudulent or material omissions of fact when responding to Question 6 are not supported by clear and convincing evidence. The court's findings are therefore reversed and struck from the April 30, 2018, order.
The trial court incorporated its findings from the April 25, 2018, minute order into a final Order Denying Respondent's Motion to Associate Counsel, filed April 30, 2018.
¶25 With respect to Question 7, Attorney contends it is limited to suspensions or revocations by a regulatory or administrative body. Father disagrees, asserting Attorney's interpretation is too narrow and perverts the spirit, if not letter, of Question 7 and that a reasonable interpretation of the Question suggests an attorney should disclose previous denials and revocations of pro hac vice admissions in other jurisdictions.
¶26 Question 7 provides:
7. Have you ever had any certificate or privilege to appear and practice before any regulatory or administrative body suspended or revoked except as hereinafter provided (Give particulars; e.g. administrative
body, date, status of suspension or reinstatement.):
¶27 The trial court disagreed with Attorney's interpretation, stating:
[ ]Question No. 7 clearly encompasses pro hac vice admission, and the denial or revocation thereof. Specifically, it calls for disclosure of the suspension or revocation of "any certificate or privilege to appear." [Attorney's] choice to omit disclosure of the multiple times he has been sanctioned by other Courts, the multiple times he has been denied pro hac vice admission, and the multiple times he has had his pro hac vice admission status revoked, are fraudulent and material omissions which serve to disqualify [Attorney] from admission to this Court. Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S.2011, Ch. 1, App. 1, Art. 2, § 5(B)(1).
The trial court found Question 7 clearly and expressly encompassed pro hac vice admission before a court and Attorney's failure to disclose his denials and revocations was a fraudulent and material omission.
¶28 We disagree. Question 7 does not clearly encompass pro hac vice admission before a court. Question 7, by its plain language, only requests an out-of-state attorney to disclose if he has had any certificate or privilege to appear and practice before any regulatory or administrative body suspended or revoked. If the OBA had wanted an out-of-state attorney to disclose pro hac vice admission statuses or other privileges to appear, it should not have specifically limited Question 7 to "any regulatory or administrative body."
¶29 The record provides Attorney has had pro hac vice permission to appear before a trial or appellate court revoked or denied in at least four states. Attorney asserts he has never practiced before a regulatory or administrative body and has never had a certificate or privilege revoked or suspended before one.
¶30 Father contends, however, that in those jurisdictions where Attorney was denied pro hac vice admission, the gatekeeper of the pro hac vice application is a regulatory or administrative body. For example, in Ohio an applicant must apply for a certificate of pro hac vice registration from the Supreme Court Office of Attorney Services. See Oh.St. Govt. Bar Rule 12. This Office, and its counterpart, the Ohio Office of Bar Admissions, are regulatory bodies vested with authority and oversight over pro hac vice admission. Father contends that since Attorney was denied admission into Ohio, presumably the Office of Attorney Services, a regulatory body, had a hand in the process. Presumptions, however, are insufficient to establish fraud. Again, fraud may never be presumed but must be proved by clear and convincing evidence. Bowman , 2009 OK 48, at ¶ 13, 212 P.3d 1210.
In his Response and Objection to Mother's Motion to Associate Counsel, Father presented evidence of Attorney's pro hac vice denial or revocation by courts. There is no evidence in the record of denial or revocation by a regulatory or administrative body.
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¶31 Accordingly, because Question 7 does not clearly encompass pro hac vice admission before a court, and there is no evidence in the record Attorney has ever had a certificate or privilege revoked or suspended before a regulatory or administrative body, Attorney's "No" answer was not obviously incorrect. The trial court's legal and factual findings that Attorney made fraudulent or material omissions of fact in response to Question 7 are not supported by clear and convincing evidence. These findings are therefore reversed and struck from the April 30, 2018, order.
¶32 Finally, our task is to determine whether the trial court abused its discretion not to admit Attorney after consideration of all the evidence.
As set out earlier in Smith :
If, after evidentiary hearing, a trial judge, in the exercise of sound judicial discretion, finds that the admission of an out of state attorney pro hac vice, is fraught with potential abusive misconduct or patent misrepresentations on the part of foreign counsel seeking to be admitted, the application for admission pro hac vice, should be refused. (Emphasis added).
Smith v. Brock , 1975 OK 27, at ¶ 23, 532 P.2d 843.
¶33 The trial court's order provides:
That this Court maintains plenary authority to either permit or deny [Attorney's] admission to practice before this Court, regardless of whether his misrepresentations rise to the level of fraud or not. Based upon the evidence submitted and the Court's review of appellate opinions from various other jurisdictions, [Attorney's] behavior, tactics, and conduct in litigation are not of the sort tolerated by this Court.
¶34 Attorney's past conduct, his history of being sanctioned, and his denials of pro hac vice admissions are clearly relevant to the trial court's decision to permit or deny admission. Consequently, we find no abuse of discretion occurred. Although we have determined Attorney's answers to Questions 6 and 7 were not obviously incorrect, the evidentiary material supports the trial court's conclusion that the potential for abusive misconduct exists. The trial court's order denying pro hac vice admission is therefore not an abuse of discretion and is affirmed.
¶35 Finally, Attorney requests the Court reverse the trial court's order denying Mother's motion to associate counsel and remand the matter for another hearing to allow him to represent Mother. This we cannot do. Attorney has no legally protected interest to represent Mother in her case.
At a minimum standing is composed of three elements. These components are: (1) a legally protected interest which must have been injured in fact—i.e., an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision.
Cities Serv. Co. v. Gulf Oil Corp ., 1999 OK 16, ¶ 3, 976 P.2d 545, 547.
¶36 We note the only party with standing to ask for this relief is Mother. We note Mother has not appealed the trial court's order denying her motion to associate counsel, and therefore we deny Attorney's requested relief.
CONCLUSION
¶37 The trial court's April 30, 2018 order is therefore affirmed in part and reversed in part.
¶38 AFFIRMED IN PART AND REVERSED IN PART .
REIF, S.J. (sitting by designation), concurs, and THORNBRUGH, J., concurs specially.
THORNBRUGH, J., concurring specially:
¶1 I concur entirely in the decision of the panel. I write separately to emphasize that the application form for temporary admission pursuant to 5 O.S.2011 Ch. 1, app. 1, Art. II § 5(B) is one approved by the Board of Governors of the Oklahoma Bar Association, and the Bar Association is thereby responsible for its contents and wording. If the Bar Association intends, as its General Counsel opined in this case, that the definition of "public discipline" as used in the application includes any and all sanctions by a court, the form should simply state so. Equally, if a prior refusal of pro hac vice admission is either "discipline" or a "suspension or revocation of a certificate to practice," the form should state so. It is otherwise ambiguous, and sets a trap for the unwary that benefits no one, and brings no credit to this State in its dealings with out-of-state attorneys.