In re Reinstatement of Debacker

• Decision Date: 26 February 2008
• Docket Number: No. SCBD-5287.,SCBD-5287.
• Parties: In the Matter of the REINSTATEMENT OF Michael L. DeBACKER, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

184 P.3d 506

2008 OK 17

In the Matter of the REINSTATEMENT OF Michael L. DeBACKER, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

No. SCBD-5287.

Supreme Court of Oklahoma.

February 26, 2008.

REINSTATEMENT PROCEEDING

¶ 0 The petitioner, Michael L. DeBacker, applied for reinstatement to the Oklahoma Bar Association after he was stricken from the Roll of Attorneys in 1980 for non-payment of dues. DeBacker has lived and worked in Ohio since 1979, where he was employed by a large corporation. DeBacker was not licensed in Ohio but was "registered" as a corporate lawyer under the Ohio Supreme Court Rules, and he represented that he was licensed in Oklahoma. After an investigative reporter contacted DeBacker regarding a story about unlicensed corporate counsels who worked for American corporations, DeBacker resigned from his position as General Counsel and reported himself to the Ohio Supreme Court. Ohio entered into a consent agreement with DeBacker in which it agreed not to file a complaint against him for all of the years he engaged in the unauthorized practice of law if he avoided any conduct after April 10, 2007 which constituted the unauthorized practice of law. The trial panel of the Oklahoma Bar Association recommended reinstatement. Upon de novo review, we hold that the petitioner: 1) engaged in the unauthorized practice of law for twenty-seven years and his conduct encompassed misrepresentation; 2) should remain suspended until April 10, 2008; and 3) shall pay costs of $1,553.49 as well as past bar dues which total $4,425.00. Payment in the amount of $5,978.49 is due before April 10, 2008.

REINSTATEMENT GRANTED AND DEFERRED; COSTS AND PAYMENT OF PAST DUES IMPOSED.

Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

Larry Derryberry, Pete G. Serrata, Oklahoma City, OK, for Petitioner.

KAUGER, J.

¶ 1 A former member of the Oklahoma Bar Association seeks reinstatement pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. Supp.2002, Ch. 1, App. 1-A.¹ The Bar Association and the trial panel recommended reinstatement.² Upon a de novo review, we hold that the petitioner was engaged in the unauthorized practice of law for twenty-seven years and his conduct encompassed misrepresentation. The petitioner remains suspended until April 10, 2008, and the petitioner is ordered to pay costs of $1,553.49 as well as his past bar dues, which total $4,425.00. Payment of $5,978.49 is due before April 10, 2008.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The petitioner, Michael L. DeBacker, graduated from Washburn University School of Law in Topeka, Kansas in December of 1972. After he graduated and successfully completed the bar examination, DeBacker became a member of the Kansas Bar Association. He began working for the Federal Trade Commission's Kansas City Regional Office as General Attorney-Trade Regulation.

¶ 3 In November of 1975, the petitioner left Kansas and moved to Oklahoma to work at Phillips Petroleum Company. DeBacker successfully completed the Oklahoma Bar Examination and was admitted to the Roll of Attorneys on July 10, 1976. When the petitioner left Kansas, he did not provide a forwarding address, nor did he pay Kansas bar dues. As a result of his failure to pay dues Kansas suspended DeBacker's license on November 18, 1976. Because he did not provide a forwarding address, DeBacker never received notice of the Kansas suspension.

¶ 4 In August of 1979, DeBacker moved from Oklahoma to Ohio to work in the legal department of Dana Corporation. DeBacker neglected to notify the Oklahoma Bar Association of his move or of his new address, nor did he pay the annual registration fee required to maintain an Oklahoma license. On October 15, 1980, we suspended the petitioner from the practice of law in Oklahoma for non-payment of dues. His name was stricken from the Roll of Attorneys on December 18, 1981. Because of his failure to provide a forwarding address, DeBacker did not receive notification of the Oklahoma suspension.

¶ 5 DeBacker did not take the Ohio Bar Examination. Instead, he registered under Rules of the Supreme Court of Ohio as an in-house corporate counsel in 1985.³ The Supreme Court of Ohio allows corporate lawyers to register as a corporate counsel without an Ohio license as long as the lawyer pays a registration fee, complies with continuing education requirements and is licensed in another state.⁴ On August 6, 1993, the Ohio Supreme Court suspended DeBacker from the corporate registry for failure to timely file a "biennium" continuing education report. DeBacker immediately requested reinstatement, but because the reinstatement petition was never docketed in the Supreme Court of Ohio, the petition was not acted upon. DeBacker assumed, without checking, that he had been reinstated. Nevertheless, he admits that he failed to properly maintain his Ohio registration after 1995.⁵

¶ 6 DeBacker worked his way up through various positions in Dana Corporation's legal department until he was appointed Vice President and Assistant General Counsel of Dana Corporation in January of 1994. Sometime shortly before April of 2007, DeBacker was contacted by a reporter who was writing a story for a national law publication about corporate counsels for large United States companies who were not licensed to practice law. DeBacker contends that this was the first time he realized that he might not be properly registered anywhere. The petitioner contacted lawyers in Kansas and Oklahoma for help in determining whether he was registered in either state.

¶ 7 On April 10, 2007, after learning that he was not registered in either Kansas or Oklahoma, DeBacker ceased to act as Vice President and General Counsel of Data Corporation. He remained employed with the corporation in a nonlegal capacity. The petitioner self-reported his admitted unauthorized practice of law to the Ohio Supreme Court on April 13, 2007.

¶ 8 DeBacker entered into a consent agreement with the Ohio Supreme Court wherein he admitted to the unauthorized practice of law. The Ohio Disciplinary Counsel agreed not to file a complaint against DeBacker for the unauthorized practice of law as long as he avoided engaging in any activities which constituted the unauthorized practice of law after April 10, 2007. On March 30, 2007, in an apparent attempt to resolve the problem with his Ohio corporate registration, DeBacker filed a petition for reinstatement in this Court. In May and June of 2007, DeBacker completed 18 hours of continuing education courses in Oklahoma which included video replays of courses offered in 2006 and 2005, as well as 15.5 hours in Ohio.

¶ 9 After a hearing on June 8, 2007, the professional responsibility tribunal found that: 1) DeBacker has not engaged in the unauthorized practice of law in Oklahoma; 2) no harm resulted in his technical oversight of unintentional practice without proper membership; 3) he acted professionally and self-reported his violations when discovered; 4) DeBacker undeniably possesses the highest competence in the law; and 5) he is a lawyer who has been, is and will continue to be an asset to the integrity of the legal profession. The tribunal recommended reinstatement. On July 26, 2007, the Bar Association filed an application to assess costs in the amount of $1,553.49 against the petitioner. The briefing cycle was completed on August 6, 2007, when the parties filed a joint waiver of briefs.

¶ 10 BECAUSE THE PETITIONER ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW FOR TWENTY SEVEN YEARS AND HIS CONDUCT ENCOMPASSED MISREPRESENTATION, HE REMAINS SUSPENDED UNTIL APRIL 10, 2008, AND IS REQUIRED TO PAY COSTS AND PAST DUES.

¶ 11 The petitioner and the Bar Association argue that DeBacker's Oklahoma license should be reinstated. Often, when an attorney is suspended from the Oklahoma Bar Association unrelated to a disciplinary matter, such as for nonpayment of dues, it is because, for whatever reason, the attorney is no longer practicing law within Oklahoma and/or no longer needs to maintain an Oklahoma license to practice law anywhere else.⁶ Under such circumstances, we have reinstated many attorneys who have made an adequate showing for reinstatement pursuant to Rule 11.1, Rules Governing Disciplinary Proceedings, 5 O.S. Supp.2002, Ch.1, App. 1-A.⁷

¶ 12 Unlike a typical reinstatement case, this cause presents an attorney who has held himself out as licensed in Oklahoma for over 30 years and relied upon that license to practice law in another state, when in fact he had been suspended for all but three of those years. This Court faced a similar situation a few years ago in the Matter of Reinstatement of Sperry, SCBD No. 4800 (2003), when it issued a reinstatement order which was published only in the Oklahoma Bar Journal.

¶ 13 Sperry involved a patent attorney who became a member of the Oklahoma Bar Association in 1959. A few months later, he moved to another state without providing a forwarding address. Except for a brief residence in Tulsa in 1963-64, Sperry always resided outside Oklahoma. He practiced exclusively in the area of federal patent law for 45 years, but never paid any Oklahoma Bar dues or kept current on Oklahoma law and never bothered to inquire about his membership status. Sperry did not attend any continuing legal education courses, nor did he claim exemption as a nonresident attorney from the necessity of filing an annual report as mandated by Rule 2, Rules Governing Continuing Legal Education, 5 O.S.2001, Ch. 1, App. 1-B.⁸ In 1965, Sperry was suspended from the Oklahoma Bar Association for nonpayment of dues.⁹

¶ 14 Despite Sperry's non-payment of dues, and despite his ignorance of Oklahoma law over the many years subsequent to his admission, this Court reinstated Sperry to the Roll of Attorneys licensed to practice law in Oklahoma and ordered him to pay his current annual dues of $175.00. This decision was...