[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 704 ¶ 0 Petitioner is a practicing lawyer who was convicted of bribing a State's witness, allowed to resign from the Bar pending disciplinary proceedings, later reinstated to membership in the Bar, and after receiving a pardon from the Governor successfully had her district court criminal records sealed, and now seeks to seal and expunge her Oklahoma Supreme Court and Bar Association disciplinary files as well as the present proceeding. The Oklahoma Bar Association objects to the relief sought by Petitioner. We hold that 22 O.S.Supp. 2009 §§ 18[22-18] and 19, and Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to the records in an Oklahoma Supreme Court Bar disciplinary proceeding that are related to a criminal conviction, and the Court declines to adopt a rule or procedure for sealing and expunging the records in Bar disciplinary proceedings based upon a disciplined lawyer's compliance with 22 O.S.Supp. §§ 18,19.
ORIGINAL JURISDICTION ASSUMED AND APPLICATION FOREXTRAORDINARY RELIEF DENIED
¶ 1 An attorney, Sylvia McCormick Spilman, seeks to seal and expunge the records in her Bar Association disciplinary files. We hold that her request is not within the scope of the statutory authority relied upon, but involves this Court's original and exclusive jurisdiction over the regulation of the Bar and the practice of law. We assume jurisdiction in this matter because the requested relief is within the exclusive original jurisdiction of this Court, and we issue an opinion because the application presents a first-impression issue.
¶ 2 In 1995, Spilman was convicted by a jury of bribing a State's witness, sentenced to one year in the state prison, served eight weeks, and was released on parole.1 The conviction was affirmed by the Court of Criminal Appeals. Upon her conviction Spilman was allowed to resign from the Bar pending disciplinary proceedings.2 Nine and one-half years after her resignation, she applied for reinstatement to the Bar and the Court granted the application in October *Page 705 2004.3 In 2005, the Pardon and Parole Board gave Spilman a favorable recommendation and the Governor gave her a pardon.4
¶ 3 In 2007, the District Court for Tulsa County granted Spilman's application to seal and expunge her criminal bribery file, CRF-1994-920, and two other criminal files, CF-1994-180 and CF-79-693.5 The order was modified by a nunc protunc order which included her record maintained by the Department of Corrections.6 The District Court's order exempted from sealing and expungement "the internal litigation files and records of the Tulsa County District Attorney's Office. . . ."7
¶ 4 In July 2010, Spilman filed in this Court an "Application for Expungement and Sealing Records" which requests that the records be sealed in her resignation proceeding, reinstatement proceeding, and the present proceeding.8 The records she seeks to seal are records of this Court ministerially controlled by the Clerk of this Court9 and files maintained by the Oklahoma Bar Association.10 The Bar Association filed its response to Spilman's application and objected to the relief sought. The Bar Association argues that records relating to grievances terminated by a dismissal are expunged, but not a proceeding that involved a resignation pending discipline.11 *Page 706
¶ 5 Spilman relies upon 22 O.S. §§ 18[22-18](8), 19; Oklahoma Supreme Court Rules 1.260, 1.261, 1.262; and the exhibits attached to the application as sufficient for her request to seal and expunge her Bar disciplinary files. The 2009 version of title 22, section 18, lists ten12 circumstances which may be used to support expunging a criminal record.13 Spilman indicates reliance upon the following language in 22 O.S.Supp. 2004 § 18[22-18](8), now codified at § 18(9).14
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:. . . . *Page 707 (8) [t]he offense was a nonviolent felony, as defined in Section 571 of title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction;. . . .
Spilman's Application at page 2, paragraph 2. The correctness of the adjudication by the District Court of Tulsa County in issuing its order granting Spilman's request to seal and expunge criminal records is not before the Court in this proceeding. The present proceeding is not an appeal from the order of the District Court for Tulsa County.15 The first question presented for our review is whether 22 O.S.Supp. §§ 18, 19 apply to Supreme Court Bar disciplinary proceedings.
¶ 6 The first paragraph of 22 O.S.Supp. 2009 § 19[22-19] shows that the § 18 remedy is provided by a district court.
A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information.
22 O.S.Supp. 2002 § 19[22-19](A).
Section 19 refers to a district court order appealed to the Supreme Court, but contains no reference to the Supreme Court issuing an order sealing Bar disciplinary records.16 Section 19 does state that a district *Page 708 court's order "shall specify those agencies to which such order shall apply." 22 O.S.Supp. 2009 § 19[22-19](C). However, such language may not be read so broadly as to include the Oklahoma Supreme Court as one of those "agencies."
¶ 7 When the term "agency" (or agencies) is used to name a government entity the term is usually17 not considered to include the Oklahoma Supreme Court or any other entity exercising judicial power. The State Constitution designates the three departments of governmental power as Legislative, Executive, and Judicial (Okla. Const. Art. 4, § 1), and the Supreme Court possesses judicial power (Okla. Const. Art. 7, § 2) which is exercised by an original jurisdiction proceeding in the nature of general superintending control over "Agencies, Commissions, and Boards created by law." Okla. Const. Art. 7, § 4 (emphasis added). Consistent with this concept is the common use of "agency" to identify Executive Branch entities which utilize a statutoryadministrative procedure and which possess quasi-judicial authority in some circumstances.18 Generally, records of a court are in that court's custody and control;19 and while the Supreme Court has superintending control over district courts, no district court has superintending control over the Supreme Court or other district courts.20 Thus, the usual construction *Page 709 of "agencies" in § 19 would not include the Oklahoma Supreme Court as an agency whose records are subject to control by a district court.
¶ 8 Section 19 states that "[u]pon entry of an order to seal the records, or any part thereof, the subject actions shall be deemed never to have occurred. . . ." and a record sealed pursuant to § 18, "if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period." 22 O.S.Supp. 2009 § 19[22-19](D), (K). However, in a Bar disciplinary matter this Court's scrutiny of a lawyer's conduct is not limited to either a ten-or twenty-year-period21 preceding the filing of the complaint in this Court.
¶ 9 A lawyer's record of prior professional conduct is always open to scrutiny by this Court when he or she is before the Court in a professional disciplinary matter. We have explained that there is no equitable statute of limitations in Bar disciplinary proceedings and that "[t]his Court does not take lightly charges against a member of the Bar regardless of when they occurred." State ex rel. Oklahoma Bar Associationv. Dobbs, 2004 OK 46, ¶ 110, 94 P.3d 31, 71, emphasis added.22 We have explained that "[i]n imposing discipline, the court evaluates the entire record of an attorney's professional conduct and scrutinizes the record to determine whether the alleged offenses are a mere blotch on an otherwise untainted career, or just one long series of ethically questionable actions." Dobbs, at ¶ 111. A lawyer's record of professional conduct of more than thirty years without a disciplinary action has been used as a mitigating factor in imposing discipline. State ex rel. Oklahoma Bar Associationv. Berger, 2008 OK 91, ¶¶ 15-16, 202 P.3d 822, 826. Thus, a lawyer's record of professional missteps as well a lawyer's record without missteps are important to this Court's assessment of the appropriate discipline.
¶ 10 This Court has also explained that "[t]he regulation of licensure, ethics, and discipline of legal practitioners is a nondelegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive jurisdiction."State ex rel. Oklahoma Bar Association v. Wilburn,2010 OK 25, ¶ 4, 236 P.3d 79, 80. Our nondelegable and exclusive jurisdiction in Bar matters has been stated often by this Court, 23 and it includes every aspect24 of a disciplinary inquiry involving the authority of the Oklahoma Bar Association, and our jurisdiction herein is not a novel principle unknown to the Legislature when it crafted 22 O.S. §§ 18[22-18] 19.25 Sections 18 and 19 express no indication *Page 710 of any intent by the Legislature to encroach upon the Court's jurisdiction in Bar matters.
¶ 11 The Court's need for a complete record of a lawyer's professional conduct in a disciplinary action and the exclusive jurisdiction of this Court in Bar disciplinary matters explains, in part, why examination of a lawyer's conduct is not necessarily limited to the ten years preceding the filing of the disciplinary complaint in this Court, and why 22 O.S. §§ 18[22-18] 19 should not apply to Bar proceedings. We conclude that 22 O.S.Supp. 2009 §§ 18[22-18], 19 do not apply to Bar disciplinary records in this Court, and thus do not apply to Spilman's disciplinary proceedings.
¶ 12 The Court recognizes that it has implemented §§ 18 and 19 for the purpose of sealing and expunging civil appellate records that are related to sealed and expunged district court proceedings.
Expungement of records
Persons who have obtained an order of expungement from a district court, pursuant to Title 22, Sections 18 and 19, may seek expungement of related civil appellate records in this Court for retained cases as well as those that stand or stood assigned to the Oklahoma Court of Civil Appeals. Those persons who seek a district court's expungement by appeal or writ may seek this court's order directing the clerk to keep certain materials sealed pending the outcome of the case.
12 O.S.Supp. 2009 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.260 (emphasis added).
Both Rule 1.261 and Rule 1.262 refer to "appellate records" to be, or which have been, expunged by the Court.26 While an appeal is, for several purposes, a continuation of the proceeding commenced in the lower court, 27 a Bar disciplinary record is created in a sui generis proceeding28 by the exercise of the Court's original, not appellate, jurisdiction;29 and substantive differences exist between this Court's exercise of general civil appellate jurisdiction and the original jurisdiction that is exercised in a Bar matter.30
¶ 13 We conclude that Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to Bar disciplinary records. The records in State of Oklahoma ex rel. Oklahoma BarAssociation v. Spilman, 1995 OK 60, 898 P.2d 152 and Inthe Matter of the Reinstatement of Spilman, 2004 OK 79,104 P.3d 576, were not created in the process of civil appeals and Rules 1.260, 1.261, and 1.262 do not apply to them.31 *Page 711
¶ 14 Once a formal complaint has been brought, it is this Court's constitutional duty to ensure that the goals of lawyer discipline are carried out. These goals include "(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. . . ."State ex rel. Oklahoma Bar Association v. Caldwell1994 OK 57, 880 P.2d 349, 353. These first two goals include the Court's recognition that public confidence in the legal practitioner is essential to the proper functioning of the profession, 32 and that it is essential in disciplinary matters to preserve the public's confidence in the legal system as well as in the judiciary that licenses its practitioners.33
¶ 15 In State ex rel. Oklahoma Bar Association v.Trower, 1963 OK 93, 381 P.2d 142, we stated the following.
Id., 381 P.2d at 144.. . . the facts still remain that it is not for the sake of the individual member of the legal profession, nor the Oklahoma Bar Association, that men and women are licensed to engage in the practice of law. It is for the benefit of the public.
We have explained that a lawyer's continued good moral character is required throughout the lawyer's lifetime.34 The public's interest in the professional conduct of a lawyer is a continuing interest throughout the lawyer's professional career. We have explained that the public must have confidence that the legal profession, which is self-regulated, will not disregard an offending lawyer's conduct, 35 and this includes the continuing nature of the lawyer's conduct and this Court's continuing function in not disregarding an offending lawyer'S conduct. In a disciplinary proceeding this Court is serving that public interest when it "evaluates the entire record of an attorney's professional conduct and scrutinizes the record to determine whether the alleged offenses are a mere blotch on an otherwise untainted career, or just one long series of ethically questionable actions." State ex rel. Oklahoma Bar Association v.Dobbs, 2004 OK 46, ¶ 110, 94 P.3d 31, 71.
¶ 16 A Court-created Bar disciplinary procedure that would mirror 22 O.S. §§ 18[22-18] and 19 would prevent the Court from maintaining a lawyer's complete disciplinary record during that lawyer's professional career, thwart the public obtaining knowledge of the disciplinary record of a lawyer's professional conduct, 36 and attack both the public's interest in a lawyer fulfilling continuing ethical obligations and this Court's function in evaluating the continuing professional conduct of the lawyer. Spilman was reinstated to membership in the Bar Association. In the Matter of the Reinstatement ofSpilman, *Page 712 2004 OK 79, 104 P.3d 576. We noted therein that Spilman had a "heavy burden" to "establish affirmatively that, if readmitted . . . [her] conduct will conform to the high standards required of a member of the Bar." Id. at ¶ 4 (language omitted and explanation added). However, Spilman, like all lawyers who satisfy their respective burdens upon admission or reinstatement, must also satisfy the continuing burden to actually conform to the high standards required by members of the Bar. Spilman's attainment of her Executive Pardon is commendable, but the issuance of a Pardon does not encroach upon the Court's inherent power over lawyer disciplinary proceedings.In re Bozarth, 1936 OK 811, 63 P.2d 726, 730.37 We thus decline to create a procedure or rule for disciplinary proceedings that would mirror 22 O.S. §§ 18[22-18] and 19 and Supreme Court Rules 1.260-1.262.38
¶ 17 In summary, we assume original jurisdiction and deny the application to seal and expunge records in Petitioner's Bar Disciplinary proceedings. The request to seal and expunge the record in the present proceeding is also denied. We hold that 22 O.S.Supp. 2009 §§ 18[22-18] and 19, and Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to the records in an Oklahoma Supreme Court Bar disciplinary proceeding. We decline to adopt a procedure or rule for sealing and expunging Bar disciplinary proceedings after a disciplined lawyer has complied with the requirements of 22 O.S.Supp. 2009 §§ 18-19[22-18-19].
¶ 18 ALL JUSTICES CONCUR.
The Order of the District Court, Exhibit C, at page 2 and paragraph number 6, states that case CF-1994-180 was dismissed by the State and case CF-79-693 was dismissed by the Court at Spilman's Preliminary Hearing.
The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the area of discipline under these Rules:
. . . .
(g) To maintain permanent records of all active and inactive discipline and disability matters, subject to the expungement requirements of Rule 3.2(h), as follows:
(1) All inactive disciplinary matters where a formal complaint has been filed with the Supreme Court, shall be maintained indefinitely;
(2) All inactive disciplinary matters where a member has resigned pending disciplinary proceedings or pending investigation which might result in disciplinary proceedings, shall be maintained indefinitely:
(3) All inactive disciplinary matters where a private reprimand has been issued by the Professional Responsibility Commission shall be maintained indefinitely;
(4) All inactive disciplinary matters where the General Counsel's Office has investigated a grievance and reported the grievance to the Professional Responsibility Commission or its predecessor for action, shall be maintained for a period of three (3) years from the date the grievance is made inactive;
(5) All inactive disciplinary matters where the General Counsel has disposed of the grievance by informal procedures, shall be maintained for a period of three (3) years from the date the grievance is made inactive.
(h) To expunge after three (3) years all records of the Commission relating to grievances terminated by dismissal, except that the General Counsel shall retain a docket showing the names of each respondent and complainant, the final disposition, and the date all records relating to the matter were expunged, except that the General Counsel may, prior to the expiration of the three (3) years, apply to the Commission for an additional three (3) years which application shall be granted upon a showing of good cause and with notice to respondent; expunge other grievances as directed by the Commission pursuant to Rule 5.3(b).
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:
1. The person has been acquitted;
2. The conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction, or an appellate court of competent jurisdiction reversed the conviction and the district attorney subsequently dismissed the charge;
3. The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction, including a person who has been released from prison at the time innocence was established;
4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced;
5. The person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested are filed or charges are dismissed within one (1) year of the arrest, or all charges are dismissed on the merits;
6. The statute of limitations on the offense had expired and no charges were filed;
7. The person was under eighteen (18) years of age at the time the offense was committed and the person has received a full pardon for the offense;
8. The offense was a misdemeanor, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the judgment was entered;
9. The offense was a nonviolent felony, as defined in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction; or
10. The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person's name or other identification without the person's consent or authorization.
For purposes of this act, "expungement" shall mean the sealing of criminal records. Records expunged pursuant to paragraph 10 of this section shall be sealed to the public but not to law enforcement agencies for law enforcement purposes.
A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information.
B. Upon the filing of a petition or entering of a court order, the court shall set a date for a hearing and shall provide thirty (30) days of notice of the hearing to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record.
C. Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.
Any order entered under this subsection shall specify those agencies to which such order shall apply. Any order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court. In all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.
D. Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.
E. Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, or by the district attorney and only to those persons and for such purposes named in such petition.
F. Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.
G. All arrest and criminal records information existing prior to the effective date of this section, except basic identification information, is also subject to sealing in accordance with subsection C of this section.
H. Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records.
I. For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document.
J. For the purposes of this act, district court index reference of sealed material shall be destroyed, removed or obliterated.
K. Any record ordered to be sealed pursuant to Section 1 et seq. of this title, if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period.
L. Subsequent to records being sealed as provided herein, the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, or other interested person or agency may petition the court for an order unsealing said records. Upon filing of a petition the court shall set a date for hearing, which hearing may be closed at the court's discretion, and shall provide thirty (30) days' notice to all interested parties. If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed.
M. Nothing herein shall prohibit the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to Section 2608 of Title 12 of the Oklahoma Statutes.
A party desiring expungement of appellate records must file an Application for Expungement with the Clerk of this Court. The Application shall state (1) the category under which the person was qualified to seek expungement in the district court, as set forth in Title 22, Section 18; and (2) the date the district court entered the order of expungement and the scope of that order. A certified copy of the party's motion for expungement and of the district court's order granting the motion shall be filed with the Application for Expungement.
Rule 1.262. Inspection of expunged appellate records.
Inspection of expunged appellate records may thereafter be permitted only by order of this Court. For purposes of this section, appellate records ordered expunged shall not be physically destroyed. See Title 22, Section 19.