998 F.2d 1559 (10th Cir. 1993), 92-6104, Doyle v. Oklahoma Bar Ass'n

Docket Nº:92-6104.
Citation:998 F.2d 1559
Party Name:David Anthony DOYLE, Plaintiff-Appellant, v. The OKLAHOMA BAR ASSOCIATION; James M. Tisdale, individually and as Chairman, Professional Responsibility Commission, Oklahoma Bar Association; Paul M. Vassar, individually and as Member, Professional Responsibility Commission, Oklahoma Bar Association; Dan Murdock, individually and as General Counsel, O
Case Date:July 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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998 F.2d 1559 (10th Cir. 1993)

David Anthony DOYLE, Plaintiff-Appellant,

v.

The OKLAHOMA BAR ASSOCIATION; James M. Tisdale,

individually and as Chairman, Professional Responsibility

Commission, Oklahoma Bar Association; Paul M. Vassar,

individually and as Member, Professional Responsibility

Commission, Oklahoma Bar Association; Dan Murdock,

individually and as General Counsel, Oklahoma Bar

Association; Thomas C. Riesen, individually and as

Assistant General Counsel, Oklahoma Bar Association; Marvin

C. Emerson, individually and as Executive Director, Oklahoma

Bar Association, Defendants-Appellees.

No. 92-6104.

United States Court of Appeals, Tenth Circuit

July 19, 1993

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Sylvia Marks-Barnett, Oklahoma City, OK, for plaintiff-appellant.

George F. Shorts (Cynthia L. Sparling with him on the briefs), Short Barnes Wiggins Margo & Adler, Oklahoma City, OK, for defendants-appellees.

Before MOORE, GODBOLD, [*] and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

David Anthony Doyle appeals the dismissal of his civil rights action under 42 U.S.C. § 1983 against the Oklahoma Bar Association (the "Bar"), its executive director, general counsel, assistant general counsel, and two members of the Professional Responsibility Commission (the "PRC"). Doyle brought this action after he became dissatisfied with the way Bar counsel and the PRC handled a grievance he had filed with the Bar against his ex-wife's lawyer. His complaint 1 is based on the theory that he has federal constitutional rights to have a lawyer investigated after a grievance is filed, to have a meaningful investigatory process for grievances so as to keep the profession respectable, to have the defendants comply with the Oklahoma Supreme Court's Rules Governing Disciplinary Proceedings, and to have defendants monitor lawyers so they will not make material misrepresentations in court. Complaint p 21, Appendix to Appellant's Brief at 9.

The district court dismissed Doyle's complaint pursuant to Fed.R.Civ.P. 12(b)(6) for

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failing to allege a constitutionally protected right, among other things, 787 F.Supp. 189. We agree and affirm.

BACKGROUND

The Oklahoma Supreme Court (the court) has exclusive jurisdiction in all matters involving the licensing and discipline of lawyers in Oklahoma. Okla.Stat.Ann. tit. 5, Ch. 1, App. 1-A, R. 1.1. In the exercise of that authority the court has promulgated rules governing lawyer discipline (the Rules). Id. The Rules, among other things, address the filing, consideration, and investigation of grievances against lawyers, through the office of the General Counsel of the Bar, and the PRC, a body consisting of lawyers and nonlawyers.

In the exercise of its sole discretion, the PRC may cause a formal complaint against a lawyer to be filed with the court, charging specified violations of the Code of Professional Responsibility or other prescribed standards of professional conduct. Hearings (essentially a trial and open to the public) on the formal complaint take place before three-member panels selected from the Professional Responsibility Tribunal (Tribunal), another body created by the Rules and consisting of both lawyers and nonlawyers. The hearing panel has no power either to impose or refuse to impose discipline. It submits to the court findings, conclusions and recommendations, which are advisory only and in no way binding on the court. Thereafter, the court, in its sole discretion, makes such findings of its own and takes such action with respect to the charges against the lawyer as it deems appropriate, including dismissal of the proceedings, imposition of some type of discipline, or some other action. Okla.Stat.Ann. tit. 5, Ch. 1, App. 1-A, R. 6.16; State v. Miskovsky, 824 P.2d 1090, 1093 (Okla.1991).

The system relating to lawyer discipline in Oklahoma, therefore, is prosecutorial in nature (discretion to investigate and to charge) up to and through the filing of a formal complaint against a lawyer at the direction of the PRC. After such a complaint is filed the process proceeds to the hearing, or trial, stage which is adjudicatory in nature or, more precisely, quasi adjudicatory, since the result of the hearing proceedings is advisory and nonenforceable. See Tweedy v. Oklahoma Bar Ass'n, 624 P.2d 1049, 1054-55 (Okla.1981). As indicated above, only the supreme court can discipline. See Miskovsky, 824 P.2d at 1093.

The allegations contained in Doyle's complaint center on the handling of Doyle's grievances at the prosecutorial level or, as he claims, a stage even prior to that--grievance intake procedures.

On January 26, 1990, Doyle sent a written grievance to the Bar complaining about the conduct of his ex-wife's lawyer. The complaint filed by Doyle in this action attaches communications received by him in the matter but omits the ones he sent, including the grievance in question; however, we gather from paragraphs 6 and 22 of the complaint that Doyle lost a child custody proceeding in state court, following which he complained to the Bar that his ex-wife's lawyer committed perjury "which resulted in judgments and orders adverse to [Doyle]." Complaint p 6, Appendix to Appellant's Brief at 3.

Under the Rules, when a written grievance is filed against a lawyer the General Counsel of the Bar may proceed in the alternative as follows:

RULE 5.2. INVESTIGATIONS. After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete, or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance ... upon the lawyer....

(emphasis added). As the Rule indicates, the General Counsel has authority to screen out those grievances which are inadequate, incomplete, or insufficient to warrant further attention, with notice to that effect to the

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person who filed the grievance. 2 That authority was exercised with respect to Doyle's complaint. On February 7, 1990, twelve days after Doyle filed his grievance, the Assistant General Counsel of the Bar wrote the following letter to Doyle:

Dear Dr. Doyle:

We are in receipt of your complaint against the above-referenced attorney.

The Oklahoma Bar Association understands your situation, however, it is our opinion that we are not in a position to resolve this matter for you.

The General Counsel's Office deals with grievances alleging attorney conduct which violates the Oklahoma Rules of Professional Conduct. An attorney's conduct may seem inappropriate but it may not necessarily rise to the level of a legal ethics violation.

I am hopeful that this matter will be promptly resolved to your satisfaction.

Exhibit B to Complaint, Appendix to Appellant's Brief at 18 (emphasis added).

Doyle responded with two letters to the General Counsel (neither of which was attached as an exhibit to the complaint) apparently complaining about the Assistant General Counsel's disposition of Doyle's grievance and demanding another result. The General Counsel wrote back saying he would look into the way the grievance was handled and get back to Doyle in a week. That contact did not occur. When Doyle did not hear from the General Counsel by August 1990, he filed a grievance against him. That grievance, filed with the PRC, alleged misconduct by counsel in carrying out his duties under Rule 3.2(b), which provides as follows:

RULE 3.2. DUTIES. The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the are of discipline under these Rules:

...

(b) To investigate all matters involving possible misconduct or alleged incapacity of any lawyer called to the General Counsel's attention by complaint or otherwise;

About three weeks later Doyle, having heard nothing from the PRC, wrote to the Vice Chief Justice of the Oklahoma Supreme Court apparently complaining about the handling of both of his grievances. The justice responded by return mail, with a copy to the General Counsel, informing Doyle that he was not permitted to correspond directly with the Supreme Court on such matters, and enclosing explanatory materials. Counsel immediately reported by letter to the justice, describing the status of Doyle's grievance. The letter stated:

Dear Justice Opala:

I have enclosed a copy of my initial correspondence with Dr. David Doyle concerning his complaint. I have also spoken with Dr. Doyle over the telephone and regularly receive facsimile transmissions from him. Dr. Doyle may also be referred to a facsimile transmission sent to him after he received our initial letter. That review did not cause a change in our position.

I will cooperate with you and am available for further discussions regarding this matter if needed.

Exhibit E to Complaint, Appendix to Appellant's Brief at 21 (emphasis added). Doyle promptly amended his grievance against the General Counsel, alleging that counsel's report to the Vice Chief Justice constituted a violation of Rule 3.3. That Rule provides:

RULE 3.3. GRIEVANCES AGAINST THE GENERAL COUNSEL OF THE ASSOCIATION.

(a) Whenever a grievance is filed, or information is received by the Commission which could lead to the filing of a formal complaint against the General Counsel of the Association, the members of the Commission and the President and the Executive Director of the Association shall immediately be notified.

(b) The General Counsel shall disqualify himself from all further participation in the investigation and determination of the matter, and the chairman of the Commission, or in the event of the chairman's

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