Spilman v. Oklahoma Bar Assoc.

¶ 1 Although I join the court's opinion, I write separately to add my own thoughts and analysis about the public's right of access to information about one's status at the Bar, both past and present.

¶ 2 This case calls upon us to focus today upon the public's claim to know the background status of a lawyer presently engaged in providing legal services under a license from this state. One engaged in the practice of a profession that serves the public under a state license offers his full professional status as a licensee for ready public access and scrutiny. All information that pertains to a licensee's qualification or status, past or present, must be made available and released to the public. Any impediment to full disclosure would be utterly inconsistent with public interest and constitute an unwarranted as well as impermissible government secrecy to the detriment of the people this court is duty-bound to serve in its official capacity of policing the profession's conduct. The judicial service of government conducts all of its official business in the light of every day. The cover of darkness must not be allowed to stretch across any of its activities mandated by the constitutions, federal or state.

¶ 3 The judiciary must live in the sunshine of free and unimpeded information exchange. Its Bar cannot suppress access to government-collected data in its possession. A contrary rule would introduce a process of internal censorship that will destroy the freedom of information and public access to what government keeps in its file.

¶ 4 The executive act of granting a pardon will erase the legal effect and the factum of one's prior conviction, but it cannot and does not reach as far as to command the judiciary, a separate and independent service, to alter its files that reveal a professional history of licensed lawyers.¹ *Page 713

¶ 5 A chief executive's pardon affects neither the Bar status of a person nor that individual's professional file contents. Pardon has absolutely no effect on one's claim to a license to practice law. A post-pardon reinstatement does not operate to erase from a licensed lawyer's file the factum of a prior conviction and disbarment. These historical entries will not be expunged as legally obliterated by the governor's pardon. The chief executive's act of pardoning cannot reach that far. It is only an act of forgiveness that cleans the slate of the conviction and of its legal consequences. Since the Bar status remains unaffected, so does the licensed lawyer's file at the Bar.

¶ 6 No provision of Oklahoma's law mandates that the Bar's personal file of a lawyer be purged of information thatpertains to a pardoned criminal conviction. The Bar's continued retention of these criminal record entries is not inconsistent with any constitutional command. Nay, the Bar's position fully accords with the fundamental law's notion of judicial freedom from executive dominance. Absent a valid legal mandate clearly directing expungement, we are utterly free to continue the present policy.

¶ 7 Retention of the data sought to be expunged is absolutely needed for the ongoing protection of the public from unsafe and unworthy-of-confidence legal practitioners.² In the exercise of its constitutionally conferred powers over the licensing and discipline of lawyers the Supreme Court will and must continue the present Bar practice of not excising from the file any of the lawyer's pardoned criminal convictions.

¶ 8 Exclusion of the public from a trial³ presents a situation similar in law to exclusion of the public from access to public records.⁴ In both instances at stake is the public's right to know. The critical difference between these two situations is that here there is no concern for the protection to be secured to safeguard a fair trial of a criminal defendant. Here we are not dealing with a pending criminal proceeding and a problem of guarding against contamination of public opinion about one's guilt in advance of the trial.

¶ 9 But both issues implicate the free speech clause of the First Amendment — a clause that gave birth to a constitutional public right to know. In this case the knowledge sought to be withheld is that of public facts dealing with a publicly licensed practitioner.⁵ The law cannot and will not force the judicial service of government into any complicity to conceal public facts in its rightful possession.

¶ 10 In sum, there is no constitutional right to support petitioner's claim for expungement from the Bar record of entries that pertain to her pardoned criminalconviction. I hence concur in the court's opinion.

¹ A conviction "is not wiped out by a pardon, as the pardon by the executive power does not blot out the solemn act of the judicial branch of the government." Kellogg v. State,1972 OK CR 345, ¶ 6, 504 P.2d 440. A pardoned criminal conviction may be used for purposes of enhancing punishment on a subsequent conviction. Id.; 21 O.S.Supp. 2002 § 51.1[21-51.1]. See also Stone v. Oklahoma Real EstateCommission, 1962 OK 55, 369 P.2d 642 (the effect of a pardon in the case of an applicant for a broker's license was to restore to him his rights of citizenship removing all penalties and legal disabilities, but it "does not wipe the slate clean" and "cannot and does not substitute a good reputation for one that is bad").

² A licensed practitioner's past disciplinary history (whether by an unpublished private reprimand or a published opinion) is considered in assessing the appropriate quantum of discipline. State ex. rel. Oklahoma Bar Assn. v.Minter, 2001 OK 69, 37 P.3d 763; State ex rel. OklahomaBar Association v. Clausing, 2009 OK 74, ¶ 22,224 P.3d 1268.

³ Gannett Co., Inc. v. DePasquale, 443 U.S. 368,99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

⁴ Press-Enterprise Co. v. Superior Court of California,Riverside County, 464 U.S. 501, 104 S.Ct. 819,78 L.Ed.2d 629 (1984).

⁵ Expungement of records presents constitutional challenges of speech and press restrictions flowing out of the principle enunciated in Richmond Newspapers, Inc. v. Virginia,448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980), that "the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors."

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