State ex rel. Oklahoma Bar Ass'n v. Mothershed

CourtSupreme Court of Oklahoma
Citation2011 OK 84
Docket NumberOBAD-1526,Case Number: SCBD-4687
Decision Date11 October 2011

2011 OK 84


Case Number: SCBD-4687


Decided: October 11, 2011



¶0 Respondent, formerly licensed to practice law in the State of Oklahoma, received professional discipline by this Court in 2003, and he was disbarred from the practice of law in this State. In December of 2010 Respondent filed a petition to vacate his disbarment. Respondent alleges that the Court lacked personal jurisdiction and subject matter jurisdiction to impose the discipline of disbarment. We hold prospectively that the statutory procedure for vacating judgments in a District Court, 12 O.S. §§ 1031-1038, inclusive, is not applicable in a Bar disciplinary proceeding, and we also hold that the face of the record in Respondent's former disciplinary proceeding has no jurisdictional flaw.


Gina L. Hendryx, Katherine M. Ogden, for Complainant Oklahoma Bar Association, Oklahoma City, OK.

George L. Mothershed, Pro Se, Glendale, Arizona.


¶1 Respondent filed in this Court a petition to vacate the opinion of this Court which disbarred him from practicing law in Oklahoma. We conclude that the arguments offered by Respondent for vacating the disbarment are without merit and we deny the petition to vacate.

I. Introduction

¶2 George L. Mothershed, Respondent, was disbarred by this Court in 2003.1 In July 2005, Respondent filed a Motion for Clarification and on July 22, 2005, the Chief Justice of this Court issued an order stating that "This Bar Disciplinary matter was fully concluded March 18, 2003, upon entry of order disbarring respondent." In December 2010, Respondent filed a petition to vacate which challenges his disbarment, and requests that the Court set aside "all findings of fact and conclusions of law, orders, reports, and final report and/or judgment of the Trial Panel of February 7, 2002." In April 2011 Respondent filed a document herein for the purpose of making a "reservation of all and any of his Federal claims, rights, defenses, issues, and questions." We construe this document as an amendment to his petition to vacate. Respondent argues that the Trial Panel in his 2002 disciplinary proceeding lacked subject matter jurisdiction and personal jurisdiction of Respondent. Because Respondent argues that the face of the record in his former disciplinary proceedings shows this lack of jurisdiction we must examine that record.

II. Respondent's Allegations and His Former Disciplinary Proceedings

¶3 Formal proceedings may be initiated with a formal complaint filed with the Supreme Court. Rule 6.1, Rules Governing Disciplinary Proceedings.2 An "Affidavit for Proof of Service of Complaint" filed of record herein shows that the Rule 6.1 formal complaint was mailed to Respondent by certified mail, restricted delivery, with return receipt requested. Additionally, an Affidavit by a Staff Investigator of the State Bar of Arizona shows that the Rule 6.1 formal complaint was personally served on Respondent.3 The return for the mailing shows a signature, but apparently not the signature of Respondent. The affidavit of personal service filed of record herein shows that Respondent was personally served with the Rule 6.1 formal complaint.

¶4 On February 15, 2002, Respondent's Answer was filed with the Court. He denied "each and every allegation of the complaint." He also alleged ten enumerated "affirmative defenses."4 His answer did not raise any issue relating to personal jurisdiction or issuance of summons.

¶5 On the same day that the Rule 6.1 formal complaint was filed with the Clerk of this Court, February 15, 2002, Respondent filed a "Motion to Dismiss" and a "Memorandum In Support Respondent's Motion to Dismiss." Therein he argued that the Oklahoma Supreme Court lacked subject matter jurisdiction to professionally discipline Respondent because the claims made in support of discipline involved his conduct in proceedings before the United States Bankruptcy Court, District of Arizona. He argued that only that Bankruptcy Court had jurisdiction to question and examine his professional conduct therein.5 The motion to dismiss and accompanying memorandum made no objection based upon personal jurisdiction of Respondent in the Oklahoma professional disciplinary proceeding.

¶6 Four days later, on February 19, 2002, Respondent filed a Motion to Stay or Continue the disciplinary proceeding. He renewed the argument in his motion to dismiss. He argued that he had appealed the order of a Bankruptcy Court judge which had prevented him from practicing law in the Bankruptcy Court, and that the appeal was pending before the United States Court of Appeals for the Ninth Circuit, Case No. 02-15109. His Motion to Stay also argued that the Bar Association used void orders of the Bankruptcy Court as evidence to support the allegations made against him, and that these allegations would be rendered moot by an appellate decision in his favor.6 Respondent did not address the fact that Counts I and II in the formal complaint did not involve his conduct in bankruptcy court proceedings. Respondent's motion did not raise the issue of personal jurisdiction.

¶7 Respondent's arguments in his motion to dismiss and motion for stay provided numerous citations on the authority of bankruptcy courts. However, his arguments did not address Bar licensing and disciplinary jurisdiction in the context of a lawyer's conduct before federal courts,7 or professional licensing review of a lawyer's attorney-client relationship in a controversy before a federal court.8 He did not address the related issue when licensing courts impose discipline for conduct committed by the lawyer before another court where reciprocal discipline is used,9 or the type of conduct licensing courts examine when the conduct of a lawyer is questioned.10

¶8 One day later, on February 20, 2002, he filed a Motion in Limine asking the Supreme Court to bar the Complainant from introducing any evidence against Respondent in the disciplinary proceeding because the Bar Association had not provided a complete list of witnesses it intended to rely upon for Respondent's Trial Panel Hearing. Rule 6.8 of the Rules Governing Disciplinary Proceedings provides for providing a list of witnesses to a respondent fifteen (15) days before the hearing.11 He did not argue that the timing of a Rule 6.8 disclosure would prejudice his ability to defend the disciplinary proceeding brought against him. Respondent did not mention Rule 6.8. Respondent's motion did not raise the issue of personal jurisdiction.

¶9 A few days later on March 6, 2002, Respondent filed another motion to dismiss. He stated that he had not received a witness list, and that disclosure was required by the procedure in criminal cases as provided by 22 O.S.2001 § 2002. Respondent did not address Rule 6.8 or the discovery allowed by that Rule. Respondent's motion did not raise the issue of personal jurisdiction.

¶10 On March 11, 2002, Respondent filed a supplement to his motion to dismiss and argued that a witness list was required by both 22 O.S.2001 § 2002 and Rule 6.8, and that no witness list had been provided to him. Respondent's supplement did not raise the issue of personal jurisdiction. On the same day, Complainant requested leave to amend the formal complaint against Respondent. Generally, amending the formal complaint creates an extension of time for some deadlines, unless waived by a respondent, because a respondent in a disciplinary proceeding is provided an opportunity to file an answer to the amended complaint. Rule 6.5, Rules Governing Disciplinary Proceedings.12

¶11 A telephone conference call was held on March 11, 2002, and as a result two orders were issued by the Presiding Master and filed on March 14, 2002. The first order, a scheduling order, was filed on March 14, 2002, and it provided dates for completion of discovery, stipulations, trial briefs, exchange of lists of witnesses and exhibits, proposed findings and conclusions, pretrial conference, filing of pretrial order, and the hearing (or trial) before the trial panel. The hearing date was set for May 20-21, 2002. That order does not memorialize any objections by any party as to the dates scheduled therein. The scheduling order is signed by the Presiding Master of the Trial Panel.

¶12 In the second order the Presiding Master set forth the arguments of the parties. He memorialized that the Bar Association requested an extension of the hearing date to allow time for the Bar to gather evidence and to take depositions in Arizona. The order stated that Respondent objected to the Presiding Master conducting a conference call on the grounds that the Respondent had not been provided a list of witnesses and exhibits at least fifteen days prior to the hearing before the trial panel.13 The order has no other objection by Respondent to scheduling the hearing in May 2002. That order also granted leave for the Bar Association to amend its formal complaint with additional allegations of unprofessional conduct allegedly committed by Respondent.


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  • State Ex Rel. Okla. Bar Ass'n v. Mothershed, SCBD No. 4687
    • United States
    • Supreme Court of Oklahoma
    • November 21, 2011
    ...P.3d 11972011 OK 84STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,v.George L. MOTHERSHED, Respondent.SCBD No. 4687OBAD No. 1526.Supreme Court of Oklahoma.Oct. 11, 2011.As Corrected Oct. 18, 2011.Rehearing Denied Nov. 21, [264 P.3d 1202] PROFESSIONAL DISCIPLINARY PROCEEDING¶......

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