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NABP Legal Briefs: Judicial Branch, Executive Branch, Olive Branch
By Dale J. Atkinson, JD
Originally published in the March 2011 NABP Newsletter
The issue of expunging or sealing an administrative record, specifically an administrative disciplinary action, has been a subject of inquiry of late by multiple regulatory boards. For purposes of clarity, expungement refers to the removal of a conviction from a person’s record. To seal a record refers to the act of officially preventing access to a particular record, in the absence of a court order. Boards of pharmacy derive their powers from the practice act or applicable administrative procedures act; however, other legislative grants of power may exist elsewhere in the statutory scheme of each particular jurisdiction. In particular, jurisdictions may have specific statutes addressing the expungement procedures and likely only empower the judiciary to expunge criminal convictions, as opposed to a regulatory board expunging administrative convictions.
For purposes of this article and the fact that the case addresses an individual licensed as an attorney, it is also necessary to remind readers of the fact that boards of pharmacy fall under the executive branch of government while the boards of bar examiners fall under the judicial branch of government of the relevant state. Under certain circumstances, this distinction may be dispositive. Consider the following.
In 1995, an attorney licensed in Oklahoma was convicted by a jury of bribing a state’s witness and was sentenced to one year in prison. She served eight weeks of her sentence and was released on parole. Her conviction was affirmed on appeal. Based upon this criminal sanction, the attorney was allowed to resign from the bar, pending administrative disciplinary proceedings. It appears such resignation was intended to avoid the entry of an administrative sanction. Nine and one-half years after her criminal conviction, the attorney applied for reinstatement to the bar and was granted her license in October 2004. In 2005, based upon a favorable recommendation from the Pardon and Parole Board, the governor of Oklahoma granted her a pardon.
In 2007, the District Court for Tulsa County granted the attorney’s application to seal and expunge her criminal bribery file (in addition to two other criminal files not identified in the opinion). In July 2010, the attorney filed with the Supreme Court of Oklahoma an “Application for Expungement and Sealing of Records.” She asked the court to seal the records regarding her status as a licensed attorney, specifically her resignation, reinstatement, and current proceedings before the bar. The bar filed its response to her proceedings and argued that records related to “grievances terminated by dismissal are expunged, but not a proceeding that involved a resignation pending discipline.”
In response, the attorney cited multiple Supreme Court Rules which set forth the circumstances that may be used to support expunging a criminal record. In part, these rules, now codified into law, allow persons to seek expungement for offenses in categories including if the offense was a nonviolent felony as defined, the person has received a full pardon, at least 10 years has passed since the conviction, and the person has not been convicted of any other misdemeanor or felony nor charged with a misdemeanor or felony during this time frame.
The Oklahoma Supreme Court identified the first issue as whether the above referenced law which allows pardons of certain offenses applies to Supreme Court bar disciplinary proceedings. The court noted that the law provides a district court with the authority to expunge and to specify “those agencies to which such order shall apply.” The court noted that the law does not reference the Supreme Court as being authorized to expunge a record. It further held that when the term agency (or agencies) is used to name a governmental entity, such term is not considered to include the Supreme Court or any other entity exercising judicial power.
The court continued to distinguish the executive and judicial branches of government by identifying the Supreme Court under the Oklahoma Constitution as possessing judicial power with original jurisdiction and superintending control over agencies, commissions, and boards created by law. “Agencies” identify executive branch entities which utilize a statutory administrative procedure and possess certain quasi-judicial authority. While the Supreme Court has control over district courts, no district court has control over the Supreme Court and thus, “agencies in [the law] would not include the Oklahoma Supreme Court as an agency whose records are subject to control by a district court.”
The court also held that regardless of the 10-year period for expungements, an attorney’s record of prior professional conduct is always open to scrutiny by the Supreme Court when such individual is before the court in a professional disciplinary matter. It stated that “there is no equitable statute of limitations in Bar disciplinary proceedings and that ‘this court does not take lightly charges against a member of the Bar regardless of when they occurred.’”
In imposing discipline, the Supreme Court evaluates the entire record of the attorney’s professional conduct. Indeed, the court cited previous judicial opinions and noted that an attorney’s record of over 30 years without a disciplinary action has been used as a mitigating factor in determining an appropriate sanction or disciplinary action. The court is in need of and entitled to the entire record of an attorney when assessing potential disciplinary sanctions.
Finally, the court noted that the regulation, licensure, ethics, and discipline of legal practitioners is a “nondelegable, constitutional responsibility solely vested in [the Supreme Court] in the exercise of [its] exclusive jurisdiction.” Lastly, the court noted the matter at issue does not implicate an appeal whereby the lower court proceedings may be sealed pending the outcome of an appellate proceeding. Thus, the court concluded that the relevant expungement proceedings do not apply to bar disciplinary records.
In its summary, the Oklahoma Supreme Court appropriately noted the purpose of the regulatory scheme of attorneys which include the “(1) preservation of public trust and confidence in the Bar by strict enforcement of the profession’s integrity, (2) protection of the public and the courts and (3) deterrence of like behavior by both the disciplined lawyer and by other members of the Bar.” In short, an attorney’s good moral character is required throughout the lifetime of the career. The Supreme Court denied the attorney’s Application for Expungement and Sealing of Records.
This opinion contains important language about the regulatory process and the need for practitioners to have and maintain character attributes worthy of continued licensure. Indeed, the consuming public is also entitled to such knowledge as a beneficiary of the services of a licensee. However, this case addresses a licensed attorney whose jurisdiction falls under the judicial branch via the Supreme Court. The same outcome may not necessarily be achieved when confronted with expungement requests by pharmacists as boards of pharmacy are executive agencies. Of course, such expungement requests will likely be directed through the courts, rather than the boards.
In Re Spilman, 2010 WL 3862709 (OK 2010)
