My spouse and I visited Chicago years ago, and confusedly started driving the wrong way down a one-way street. We were promptly pulled over by one of the Windy City’s finest. I gave him my best smile, and said, “Sorry, officer, we’re from out of town.” He grunted, “Don’t they have one-way streets where you come from?” But he didn’t give us a ticket. A recent disciplinary opinion out of Oklahoma, involving a tech-challenged bankruptcy lawyer, brings the story to mind.
E-filing woes bring bankruptcy court discipline
The lawyer in Oklahoma Bar Ass’n v. Oliver was admitted to practice in 1967, and represented clients in federal bankruptcy court for almost 30 years. He ran into problems complying with the bankruptcy court’s electronic pleading requirements, which he acknowledged were caused by his lack of computer skills. The bankruptcy court tried to work with the lawyer; its staff gave him personalized help on more than one occasion, but to no avail. There was evidence that in his frustration, the lawyer even “insulted court staff when the Bankruptcy Court refused to bend the rules for him.”
These problems led the Bankruptcy Court for the Western District of Oklahoma first to suspend the lawyer from practice for 30 days in 2014 and then, in January 2015, to suspend him for 60 days.
At that point, the bankruptcy court took the unusual step of assigning the lawyer nine pages of “homework” to complete in order to demonstrate his technological competence and ability to conform to the court’s electronic filing procedures. The lawyer flunked; the court charged him with getting unauthorized help with the “homework” (he strongly disputed that), and finally, in June 2015, permanently suspended him from practicing in that court.
In violation of the Oklahoma rules of practice, the lawyer failed to report his suspension to the state bar regulators; he claimed this was an oversight resulting from ignorance of the rule.
No tech knowledge? No problem in OK.
But in its proceeding to determine whether to impose reciprocal discipline on the lawyer, a divided Supreme Court of Oklahoma only saw fit to publicly censure the lawyer. Refusing to suspend him for any amount of time, the court said that the lawyer’s “problem was technological proficiency. This in itself, does not disqualify him from practicing law in the courts of Oklahoma.”
In their dissent, two judges said that the bankruptcy court’s series of disciplinary orders “reveal an attorney not only unable to meet the minimum requirements of modern bankruptcy practice but also one unwilling to make any substantial effort to do so.” The dissenters were “unconvinced Respondent will represent future clients with any more competence than he displayed in his bankruptcy practice.”
Don’t be a legal Luddite
So what’s up Oklahoma? As the Chicago cop asked us so many years ago (kinda), “Don’t you have e-filing in your state courts?” And as the dissenting justices asked in this case, will this lawyer do any better in meeting the tech requirements — or the soon-to-be requirements — inherent in modern law practice before the tribunals of the Sooner State?
Oklahoma’s Rule 1.1, titled “Competence,” requires a lawyer to possess the legal knowledge and skill reasonably necessary for each representation. And comment  advises that maintaining the requisite knowledge and skill means keeping abreast of changes in the law and its practice. Being a legal Luddite doesn’t really pass muster under the ethics rules, as we’ve had a couple occasions to note before.
At the very least, technophobes should hire someone to do what they think they can’t learn to do, or they might risk an actual suspension, like the one the Kansas Supreme Court issued in 2008 to another bankruptcy lawyer who (among other things) failed to get up to speed on e-filing.
Seems like this Oklahoma lawyer, like we did in Chicago, escaped without a ticket.