STATE ex rel. OKLAHOMA BAR ASSOCIATION v. AUER
376 P.3d 243
| Okla. | 2016Background
- David B. Auer, an Oklahoma-licensed attorney and multi-state CPA, practiced legal work in Colorado and Wyoming without a Colorado/Wyoming law license while operating/associating with multiple accounting and law firms.
- Colorado disciplinary tribunal entered default judgment (Auer did not appear) and disbarred him for unauthorized practice, dishonesty, and failure to cooperate. Colorado found he held himself out as an attorney, drafted legal documents, and billed for legal services. Colorado discipline was issued July 23, 2014.
- Auer failed to timely notify the Oklahoma Bar of the out-of-state discipline as required by Rule 7.7, RGDP. Oklahoma initiated reciprocal disciplinary proceedings under Rule 7.7.
- At the Professional Responsibility Tribunal (PRT) hearing, evidence included billing records, Wyoming cease-and-desist correspondence, testimony from former partners (Doherty, Woodley), and the certified Colorado record; PRT recommended a deferred six-month suspension with probation.
- The Oklahoma Supreme Court reviewed de novo, concluded Auer willfully engaged in unauthorized practice in Colorado and Wyoming, found his PRT testimony did not mitigate, and ordered disbarment in Oklahoma. Costs of $2,390.84 were assessed; Rule 9.1 and Rule 11.1(b) compliance required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Colorado disbarment supports reciprocal discipline in Oklahoma | Colorado's certified adjudication constitutes prima facie evidence of misconduct and warrants reciprocal discipline | Auer argued he could mitigate or explain conduct; he testified at PRT and claimed overlap of CPA/accounting work with tax advice | Held: Colorado discipline is prima facie evidence; Oklahoma may impose reciprocal discipline; Auer's explanations failed to mitigate |
| Whether Auer engaged in unauthorized practice of law (Rule 5.5) | Billing entries, advertising, billing statements, cease-and-desist letter, and partner testimony show holding out, drafting documents, giving legal advice | Auer asserted work was limited to tax-related advice and affiliated attorneys were involved; applied for reciprocity (lapsed) | Held: Clear and convincing evidence of unauthorized practice in Colorado and Wyoming; violation of Rule 5.5 established |
| Whether dishonesty/misrepresentation occurred (Rule 8.4(c)) | Colorado found misrepresentations about licensing status and marketing as an attorney | Auer disputed characterization and emphasized CPA overlap and partnership arrangements | Held: Court accepts Colorado finding that Auer engaged in dishonest misrepresentations; supports discipline |
| Appropriate discipline in Oklahoma given Colorado sanction and local considerations | Complainant urged substantial discipline (disbarment) based on harm to clients/firms and egregious conduct | PRT recommended six-month suspension deferred to probation and possible public censure if successful | Held: Court imposed disbarment in Oklahoma as appropriate and necessary to protect public and the bar |
Key Cases Cited
- State ex rel. Oklahoma Bar Ass'n v. Patterson, 28 P.3d 551 (Okla. 2001) (reciprocal-discipline review limits relitigation; scope of inquiry narrow)
- State ex rel. Oklahoma Bar Ass'n v. Mothershed, 66 P.3d 420 (Okla. 2003) (unauthorized practice can warrant disbarment where conduct is egregious and causes client harm)
- State ex rel. Oklahoma Bar Ass'n v. Passmore, 264 P.3d 1238 (Okla. 2011) (Bar must prove misconduct by clear and convincing evidence; appellate de novo review)
- State ex rel. Oklahoma Bar Ass'n v. Bellamy, 273 P.3d 56 (Okla. 2012) (primary purpose of discipline is public protection and bar purification)
- State ex rel. Oklahoma Bar Ass'n v. Zimmerman, 276 P.3d 1022 (Okla. 2012) (Supreme Court decides misconduct and discipline de novo)
- State ex rel. Oklahoma Bar Ass'n v. Kleinsmith, 297 P.3d 1248 (Okla. 2013) (reciprocal discipline can result in public censure where mitigating circumstances exist)
- State ex rel. Oklahoma Bar Ass'n v. Wintory, 350 P.3d 131 (Okla. 2015) (facts from other jurisdiction cannot be relitigated; transcript is the limited vehicle to challenge findings)