458 P.3d 688
Or.2020Background
- Oregon State Bar filed disciplinary complaint (Dec 2017; amended Mar 2018) against attorney E. Andrew Long; Long answered and contested the charges.
- Trial panel hearing began Aug 21, 2018; Long (self-represented) was late on day one because he was caring for an ill partner and returned late from lunch.
- On day two Long did not appear by 10:00 a.m.; the adjudicator declared him in default and admitted the Bar’s exhibits. Long later emailed that he had been ill (stomach flu), overslept, and would appear later or the next day.
- The adjudicator issued a formal default order (Aug 27); Long moved the trial panel to set aside the default under BR 5.8(b) (mistake, inadvertence, surprise, or excusable neglect).
- The trial panel denied the motion, treated the Bar’s allegations as true under BR 5.8(a), found multiple rule violations, and imposed disbarment; Long sought Supreme Court review.
- The Supreme Court reviewed de novo, held Long established excusable neglect, concluded denial of relief deprived him of a fair hearing, rejected the trial panel decision, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Bar) | Defendant's Argument (Long) | Held |
|---|---|---|---|
| Whether the adjudicator’s order of default should be set aside under BR 5.8(b) (mistake, inadvertence, surprise, or excusable neglect) | Default proper because Long failed to appear, had prior tardiness, and did not timely notify the adjudicator | Long was ill (stomach flu), overslept unintentionally, notified promptly once able, moved quickly to set aside default | Court: Long established excusable neglect; default should have been set aside |
| Whether the Bar’s allegations (deemed true by default) establish the disciplinary violations | Allegations suffice to show misconduct | Allegations do not necessarily establish violations (raised on review) | Not reached on merits — court remanded for proceedings with default set aside |
| Whether disbarment is an appropriate sanction | Disbarment warranted given alleged misconduct pattern | Disbarment inappropriate | Not reached on merits — remanded |
| Whether denial of motion to vacate default deprived Long of a fair hearing such that trial panel decision must be rejected | Any procedural error was harmless; Bar had presented evidence and exhibits | Denial prevented Long from presenting evidence and cross-examining; effectively no hearing | Court: Error was not harmless; denial deprived Long of a fair hearing; trial panel decision rejected and remanded |
Key Cases Cited
- Wagar v. Prudential Ins. Co., 276 Or. 827, 556 P.2d 658 (1976) (default-relief rule should be liberally construed to allow trial on the merits)
- Rogue Val. Mem. Hosp. v. Salem Ins., 265 Or. 603, 510 P.2d 845 (1973) (diligence in seeking relief from default is relevant)
- Ballard v. City of Albany, 221 Or. App. 630, 191 P.3d 679 (2008) (illness can justify relief from default under ORCP 71 B)
- Union Lumber Co. v. Miller, 360 Or. 767, 388 P.3d 327 (2017) (interpretation of ORCP 71 B and related authorities)
- In re Sanai, 360 Or. 497, 383 P.3d 821 (2016) (harmless-error review under Bar Rule 5.1(b))
- In re Albrecht, 333 Or. 520, 42 P.3d 887 (2002) (review of trial panel evidentiary rulings under Bar rules)