Kelly John Barlean v. Oklahoma, ex rel. Oklahoma Bar Association

The Oklahoma Supreme Court exercises exclusive, nondeferential jurisdiction over attorney discipline. By its own announcement in this case, it reviews the record de novo, and misconduct must be established by clear and convincing evidence. 2026 OK 30 UH5, 31 (App. A). Before final discipline, the court directed that disputed material facts raised by Petitioner be weighed by its trial tribunal and that mitigation and severity be addressed in the final order of discipline. App. C. The disciplinary hearing proceeded in Petitioner’s absence. The court then imposed disbarment—the maximum sanction, exceeding the minimum discipline its own tribunal and the Bar had recommended — through an opinion stating that the only mitigating evidence in the record was Petitioner’s own claims raised in pleadings, although the record, including exhibits the Bar itself offered and the tribunal admitted, contained documentary evidence of program completion, medical condition, and the terms of the underlying criminal disposition. The questions presented are:

1. Whether a State’s highest court denies due process of law under the Fourteenth Amendment when, in a quasi-criminal disbarment proceeding, it announces independent review of the whole record under a clear-and-convincing standard and imposes the maximum professional sanction on the stated premise that mitigating record evidence does not exist.

2. Whether Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Due Process Clause require a state tribunal to consider a disability raised in its record — here, a service-connected disability alleged in a verified pleading and acknowledged in the.court’s opinion — before imposing the maximum professional sanction in a proceeding conducted in the respondent’s absence.

3. Whether a State may rest professional discipline on speech characterized as threatening without any finding that the speaker intended the communications as threats or consciously disregarded a substantial risk they would be so understood, as Counterman v. Colorado, 600 U.S. 66 (2023), requires before speech may be punished as a true threat.