In re Complaint as to the Conduct of MARLIN ARD, OSB No. 931453, Respondent.
(OSB 19-93) (SC S068497)
Supreme Court of Oregon
December 30, 2021
369 Or 180 (2021) | 501 P3d 1036
Argued and submitted November 3; respondent is suspended from the practice of law for one year, effective 60 days from the date of this decision December 30, 2021
The Oregon State Bar (Bar) alleged that respondent violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits conduct prejudicial to the administration of justice, by making false certifications in a court filing, initiating unwarranted proceedings, and acting improperly in other respects during litigation. A trial panel of the Disciplinary Board agreed and imposed a one-year suspension, and respondent sought review. Held: (1) The Bar sufficiently alleged that respondent had made false certifications in a court filing, although it did not sufficiently allege other misconduct; (2) the Bar proved by clear and convincing evidence that respondent violated RPC 8.4(a)(4), when he made two false certifications in a court filing, filed a judicial fitness complaint against a judge who had ruled against him, and also filed a federal action against that same judge, alleging judicial misconduct and bias; and (3) a one-year suspension is the appropriate sanction.
Respondent is suspended from the practice of law for one year, effective 60 days from the date of this decision.
En Banc
On review of the decision of a trial panel of the Disciplinary Board.
Marlin D. Ard, Sisters, argued the cause and filed the brief pro se.
Rebecca M. Salwin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar.
PER CURIAM
Respondent is suspended from the practice of law for one year, effective 60 days from the date of this decision.
In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) alleged that respondent engaged in a single violation of Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits conduct prejudicial to the administration of justice, by making false certifications in a court filing, initiating unwarranted proceedings, and acting improperly in other respects during litigation. A trial panel of the Disciplinary Board agreed with the Bar and imposed a one-year suspension. In seeking review under
I. FACTS AND PROCEDURAL BACKGROUND
Respondent is a lawyer in Sisters. He was admitted to the California Bar in 1976 and the Oregon Bar in 1993, but he no longer has a regular law practice. His Oregon license has been in “active pro bono” status since 2012. With that status, he is exempt from the requirement to carry malpractice coverage through the Professional Liability Fund (PLF),1 and he may represent clients only through a certified pro bono program that provides coverage. The underlying facts, set out below, arose from respondent‘s pro bono representation of a high school coach, whose contract had not been renewed, in two state court actions against several parents and the school district, a federal action against a Deschutes County Circuit Court judge and others, and a related judicial fitness complaint against the judge.
A. The 2012 and 2014 State Court Actions
Respondent‘s client, Goertzen, had been a successful girls’ soccer coach at Sisters High School, but some parents were concerned about his coaching style and thought that his contract should not be renewed. After the school circulated a survey to parents and players, intended to assess Goertzen‘s job performance, the school district decided not to renew his contract.
In 2012, Goertzen—then represented by a different lawyer—sued the school district and three parents (the Stewarts and Young) in Deschutes County Circuit Court (“2012 action“). That court dismissed Goertzen‘s claims against the parents under Oregon‘s anti-SLAPP statutes and issued a limited judgment that awarded them almost $24,000 in statutory attorney fees and costs.2
Rather, in January 2014, respondent filed a new action in Deschutes County Circuit Court on Goertzen‘s behalf against the school district and two other parents, a married couple, Moore and Corrigan (“2014 action“). He raised claims that one of the defense lawyers characterized as “virtually identical” to those at issue in the 2012 action. At that time, respondent had not yet received a referral from a certified pro bono program; he later obtаined one from Legal Aid Services of Oregon (LASO).
In defense, Moore and Corrigan relied on the anti-SLAPP statutes, filing identical declarations in which they each expressly denied creating the survey; having been consulted about the creation, adoption, or use of a survey; suggesting that a survey or any other evaluation tool be used; or having any understanding as to when or where the survey was created or adopted, or how it originated. In August 2014, the trial court issued a limited judgment that dismissed those parents from the 2014 action—on the same grounds as in the 2012 ruling—and ordered Goertzen to pay them more than $24,000 in statutory attorney fees and costs. Goertzen did not appeal.
Meanwhile, through discovery in Goertzen‘s ongoing claims against the school district, respondent discovered information that he thought called into question the veracity of all the declarations described above, in both the 2012 and 2014 actions. That information included two emails. The first was an email from Moore to the principal, Hosang, encouraging him to circulate a survey about Goertzen more broadly, so as to obtain fair and complete results; endorsing the notion of the survey to collect input about coaches; and noting her impression that the survey would determine the future of the coach position. The second was an email from Hosang to the school district‘s superintendent, stating that the survey had “come from” Ms. Stewart and that the “soccer folks” had “push[ed] for” the survey; referring to “accusations” of unstated origin that Ms. Stewart and Moore had “manipulated” other parents; and acknowledging that the survey had been a “huge contributing factor” in his decision to not extend Goertzen‘s contract. Respondent also learned that Moore had requested a meeting with Hosang, and, after reviewing completed anonymous surveys, he identified several statements that he attributed to various parent-defendants.
As a result, respondent notified the lawyer for the parents in the 2014 action, Rodrigues, that he intended to seek to vacate the earlier limited judgment because he had discovered new information, describing the information just summarized. Respondent further asserted that the parents had engaged in fraud and misrepresentation in obtaining the judgment. Rodrigues responded that respondent‘s “evidence” fell far short of the standard necessary to vacate the judgment and that, should respondent pursue additional litigation without any legitimate legal or factual basis, Rodrigues‘s clients—Moore and Corrigan—would seek all available remedies.
In August 2015, respondent then filed three motions—two in the 2012 action and one in the 2014 action—to vacate the limited judgments previously entered in favor of all the parents. Respondent‘s motions claimed that the limited judgments had been obtained by a “fraud upon the Court” and that Goertzen was entitled to relief. His motion in the 2014 action further claimed that Moore and Corrigan had engaged in fraud, misrepresentation, or other misconduct. See generally
In those motions to vacate, respondent mischaracterized the content of several parents’ earlier declarations, and he surrounded discussion of his newly discovered evidence with additional recitations that extrapolated from that evidence and, in some instances, mischaracterized it.3 In his motion in the 2014 case, respondent specifically claimed that both parents had not been truthful in their declarations. He asserted that Moore‘s declaration was demonstrably false in light of his new evidence; that Corrigan‘s was suspect because he had been married to Moore at the time and was a teacher at the school; and that, due to Corrigan‘s teaching status, both Moore and Corrigan had been in a fiduciary relationship with Goertzen, which they had violated.
All the parents opposed respondent‘s motions, and the matters proceeded to hearings before different judges. All three motions were denied.
Following those rulings, Rodrigues sought attorney fees and costs on behalf of his clients in the 2014 action, as well as sanctions against respondent under
In April 2016, Judge Bagley of the Deschutes County Circuit Court granted Rodrigues‘s motion and imposed sanctions in the 2014 action against respondent personally, for attorney fees and costs totaling more than $10,000. In a letter opinion, she specifically reasoned that, in his motion to vacate, respondent had falsely certified that his allegations of fraud, perjury, and false statements had been supported by evidence and warranted by existing law; she also determined that respondent had falsely certified that he had not presented his motion for any improper purpose. Judge Bagley added that respondent had filed his motion “with wanton disregard for the verity and substance of the assertions made therein.” Shortly after that ruling, respondent submitted a proposed form of judgment that incorrectly showed both Goertzen and respondent as judgment debtors. Judge Bagley eventually entered a new limited judgment and money award in the 2014 action in the parents’ favor, against respondent only.
Representing Goertzen, respondent appealed the trial court‘s order in the 2012 action that had denied his motions to vacate, and, representing both Goertzen and himself, he also appealed the new limited judgment in the 2014 action that had imposed sanctions against him personally. Both rulings were affirmed on appeal without opinion. By March 2018, the only outstanding appellate issue in both actions involved attorney fees and costs owed to the parents, including any newly incurred on appeal. The Court of Appeals referred that issue to the Appellate Settlement Conference Program for mediation. In the meantime, the PLF had become concerned about potential malpractice liability arising from respondent‘s continued representation of Goertzen, and so both the PLF and LASO‘s insurer, Hanover, became involved in the mediation.
Although the Court of Appeals repeatedly resolved all issues on the merits in the appeals in the parents’ favor, respondent characterizes the settlement as affirming the soundness of his conduct. According to respondent, the
settlement (1) “eliminat[ed] and prevent[ed] any enforcement of over $200,000 in unlawful judgments wrongfully entered” against Goertzеn, with neither respondent nor Goertzen incurring personal financial responsibility, and (2) reflected that the PLF and LASO had recognized that he had been “fully justified” in continuing litigation.5
B. The 2019 Proceedings Initiated Against Judge Bagley
Meanwhile, respondent remained dissatisfied with Judge Bagley‘s rulings, and he initiated two proceedings against her, claiming judicial misconduct and bias arising from the following alleged facts: (1) she was friends with Moore and (2) she had directed Rodrigues, in an ex parte conversation, to move for sanctions against respondent in the 2014 action. In early 2019, respondent filed a judicial fitness complaint about Judge Bagley with the Commission on Judicial Fitness and Disability (commission), which, after considering a response from Judge Bagley, summarily dismissed that complaint.
Also, in February 2019, respondent filed a civil rights action in federal court on Goertzen‘s behalf, alleging judicial misconduct and bias against Judge Bagley, the Deschutes County Circuit Court, and Deschutes County. In that complaint—which sought $1.25 million in damages from each defendant—respondent alleged the two facts noted above involving Bagley, Moore, and Rodrigues. As to Moore, respondent relied on LinkedIn social media webpages that he claimed supported his allegation that Judge Bagley and Moore knew each other, were friends, and had exchanged email addresses and communicated on social media. After Judge Bagley‘s counsel unsuccessfully attempted to persuade respondent to dismiss, citing judicial immunity principles, Judge Bagley moved for dismissal, which generated additional responsive filings. Eventually, after working with his own counsel (apparently referred to him by the PLF), respondent and the defendants stipulated to a dismissal with prejudice. When respondent filed the
2019 action against Judge Bagley, he did not have a referral from a certified pro bono program, although he did obtain one—from the federal court‘s own program—two months later, before the dismissal.
C. Initiation of Disciplinary Proceedings, Bar Complaint, and Trial Panel Hearing
The Bar filed a formal complaint in February 2020 and an amended complaint in August
The disciplinary matter proceeded to a hearing before a trial panel. After hearing from respondent and multiple witnesses, the panel concluded that thе Bar had proved its alleged violation of RPC 8.4(a)(4) by clear and convincing evidence, based on multiple instances of misconduct.6 Although the Bar had requested only a 60-day to 90-day suspension, with formal reinstatement, the panel ordered a one-year suspension, emphasizing what it characterized as respondent‘s “five-year saga of frivolous and destructive litigation” against the parents; his refusal to acknowledge the wrongfulness of his conduct; and his “ends-justify-any-means attitude towards his obligations as an attorney[.]”
II. PRELIMINARY MATTERS
We begin by addressing three challenges that respondent has raised to various aspects of this lawyer disciplinary proceeding. None are well taken.
A. Implications of Earlier Settlement Agreement
Respondent‘s first challenge is based on the settlement agreement that resolved the 2012 and 2014 actions
on appeal. Quoting from that agreement, respondent reasons that (1) all “parties” thereto—including the PLF—had agreed to “expressly waive and relinquish any and all rights” under any contrary law; (2) on the signature page, the PLF was identified as the “Oregon State Bar Professional Liability Fund“; and, therefore, (3) the agreement precluded the Bar from initiating any disciplinary proceeding against him. The trial panel rejected that argument for several reasons. Most notably, the panel observed that the PLF is a separate legal entity from the Bar and so the PLF‘s execution of the agreement—which included provisions barring future claims for damages—neither bound the Bar nor precluded the Bar from initiating this proceeding. We agree and reject respondent‘s argument for the same reason.
B. Facts Involving Bar‘s Disciplinary Counsel
Respondent‘s second challenge is based on facts involving the Bar‘s Disciplinary Counsel at the time of the Bar‘s investigation, Evans. Respondent raises two different issues, one an evidentiary issue and the other a discovery issue.
The evidentiary issue involving Evans concerns a draft stipulation for discipline. Before the trial panel hearing, Evans had engaged respondent about executing a draft stipulation for discipline, but respondent never did so. See generally BR 3.6 (discipline by consent). Respondent argued below, and again argues on review, that the unexecuted draft stipulation amounted to an admission from Evans that he had not violated any ethical rule. The trial panel adjudicator refused respondent‘s request to consider the draft stipulation and granted a motion in limine from the Bar to exclude it from the evidence at the trial panel hearing. The adjudicator reasoned that the draft stipulation was similar to an offer оf compromise in civil litigation, which is not admissible into evidence under OEC 408, so as to permit the full and free disclosure of information between parties to reach settlement, without prejudicing any position that might later be taken. Although the Oregon Evidence Code does not apply to Bar disciplinary proceedings, In re Barber, 322 Or 194, 206, 904 P2d 620 (1995), provisions of the code can be instructive depending on the circumstances. We agree with the adjudicator‘s reasoning and do not consider the stipulation on review.
The discovery issue involving Evans concerns a pre-hearing attempt by respondent
The crux of respondent‘s complaint is that, because Evans was the official responsible for the Bar‘s investigation, she was а critical witness whom he should have been permitted to depose. We agree with the trial panel, however, that nothing about the Bar‘s allegations against respondent concerned Evans‘s investigation—rather, the allegations concerned facts that occurred in the course of the 2012 and 2014 actions and the two proceedings initiated against Judge Bagley. Stated another way, the percipient witnesses were those with direct knowledge of facts relating to those proceedings, not Evans. The adjudicator did not err in quashing the subpoena.
C. Sufficiency of False Certifications Allegation
Third, respondent raises a procedural challenge to the sufficiency of one part of the Bar‘s complaint—specifically, to its allegation that he made false certifications when he filed his motion to vacate the limited judgment in the 2014 action. Respondent contends that the allegation was insufficiently specific as a matter of law and that the complaint against him therefore should be dismissed in its entirety. He filed a motion to dismiss in this court—which remains pending—based on that same reasoning.
As to false certifications, the Bar alleged in paragraph 7 of its complaint that respondent had filed a motion to vacate the limited judgment entered in the 2014 action and thаt, in doing so, he falsely certified that (1) his allegations were supported by evidence; (2) his claims were warranted by existing law; and (3) his motion was not being presented for any improper purpose. And in paragraph 8, the Bar further alleged that the trial court had denied respondent‘s motion to vacate and, in April 2016, entered a letter opinion awarding fees and costs against him for his conduct.
Respondent contends that the Bar was required to set out the “specific language setting forth the alleged false certification.” (Emphasis in original.) He relies on
As explained earlier,
Significantly, in its complaint, the Bar did not allege that respondent had violated
Of course, the Bar is required to sufficiently allege facts in connection with any allegation, to permit the respondent lawyer “to know the nature of the charge.” BR 4.1(c); see also In re Ellis/Rosenblum, 356 Or 691, 738-39, 344 P3d 425 (2015) (so explaining and setting out demonstrative cases and applicable due process principles). Standing alone, a bare allegation that respondent made false certifications arguably would be insufficient. But, the Bar‘s allegation in this case did not stand alone.
Instead, the Bar added important context in its complaint by also alleging that respondent had made the false certifications in filing his motion to vacate in the 2014 action and that the trial court had “entered a letter opinion awarding fees and costs against Respondent for his conduct.” That letter opinion, which respondent possessed, specifically described respondent‘s claims of fraud, misrepresentation, and misconduct by the parents and his request for relief based on “newly discovered evidence“; referred to the parties’ arguments made at a hearing on the sanctions motion; and explained why Judge Bagley had determined that respondent‘s motion was not supported by evidence or existing law and that his motion had been intended “to continue what has been vexatious litigation that is ill-supported by facts or law,” rather than being filed for a proper purpose. Those contextual references in the complaint put respondent оn notice of the nature of the Bar‘s “false certifications” allegation. We therefore reject respondent‘s contention that the Bar insufficiently alleged the nature of his false certifications in the 2014 action, and we deny his motion to dismiss the Bar‘s complaint.
III. MISCONDUCT ANALYSIS
A. Standards Relating to RPC 8.4(a)(4)
RPC 8.4(a)(4) provides that “[i]t is professional misconduct for a lawyer to *** engage in conduct that is prejudicial to the administration of justice[.]” That rule required the Bar to establish three elements by clear and convincing evidence: (1) respondent‘s actions were improper; (2) his conduct occurred during the course of judicial proceedings; and (3) his conduct had, or could have had, a prejudicial effect upon the administration of justice. In re McGraw, 362 Or 667, 691, 414 P3d 841 (2018). The parties do not dispute that all the alleged misconduct occurred during judicial proceedings; thus, only the first and third elements of RPC 8.4(a)(4) are at issue.
As to the first element, “[improper] conduct” means doing something that a lawyer should not do (or, not applicable here, refraining from doing something that the lawyer should have done). See In re Haws, 310 Or 741, 746, 801 P2d 818 (1990) (so explaining, in context of former DR 1-102(A)(4)); see also, e.g., McGraw, 362 Or at 693 (improper conduct included submitting abusive filings that required line-by-line review and sending letters that disparaged a judge‘s integrity and competencе); In re Paulson, 341 Or 13, 29, 136 P3d 1087 (2006) (lawyer whose decisions continually placed his clients in more vulnerable legal and financial positions, and who ignored or violated procedural rules resulting in more complicated, protracted, and expensive litigation, engaged in improper conduct). As to the third element, a prejudicial effect exists “when the lawyer‘s conduct harms (or has the potential to harm) either the substantive rights of a party to the proceeding or the procedural functioning of a case or hearing,” or both. In re Maurer, 364 Or 190, 199, 431 P3d 410 (2018); see also Haws, 310 Or at 747 (“[i]n context, ‘prejudice’ means ‘harm’ or ‘injury‘“). Prejudice can be shown by several acts that cause some harm or by a single act that causes substantial harm. McGraw, 362 Or at 692. And prejudice can result from conduct that created unnecessary work for the court, had the potential to mislead the court, or had the potential to disrupt or improperly influence the decision-making process. In re Lawrence, 350 Or 480, 487, 256 P3d 1070 (2011).
This court previously has explained that RPC 8.4(a)(4) contains no express mental state requirement, In re Carini, 354 Or 47, 57, 308 P3d 197 (2013), and “focuses on the effect of the lawyer‘s conduct, not on the lawyer‘s intent,” id. (quoting In re Stauffer, 327 Or 44, 59, 956 P2d 967 (1998) (concerning predecessor rule, former DR 1-102(A)(4))). In this case, as discussed below, the Bar proved that respondent acted negligently in some respects and knowingly in others, and we consider his state of mind primarily with respect to the sanction for improper conduct under RPC 8.4(a)(4).
The Bar is required to prove the misconduct alleged in its complaint by clear and convincing evidence. BR 5.2. Our review is de novo. BR 10.6.
B. False Certifications
We begin with the Bar‘s allegation that, when respondent filed his motion to vacate the limited judgment in the 2014 action, he made false certifications to the court. To recap, the Bar alleged that respondent had filed the motion to vacate in that action and that, in doing so, he falsely certified that his allegations were supported by evidence; his claims were warranted by existing law; and his motion was not being presented for any improper purpose. After reviewing the record, we conclude that (1) respondent made at least two false certifications in that motion to vacate; (2) his conduct was improper for purposes of RPC 8.4(a)(4); and (3) his conduct had a prejudicial effect on the administration of justice.
On de novo review of the record, it appears that respondent was troubled by some of the information that he obtained during discovery, which in turn prompted him to draft and file his motions to vacate in both the 2012 and 2014 actions. Nonetheless, the record amply supports Judge Bagley‘s findings and conclusions in the 2014 action and the trial panel‘s findings and conclusions that, in filing his motion, respondent falsely certified that his new allegations and claims were supported by both fact and law.
By way of example, respondent stated in his motion to vacate that Moore had “collaborat[ed]” in creating the survey, when none of his “evidence” supported that assertion. He also characterized Moore‘s earlier declaration as denying any knowledge of the survey, when, instead, Moore had denied involvement in creating or having been consulted about its creation, adoption, or use.9 And, notably, respondent offered no affirmative evidence whatsoever supporting his allegations against Corrigan: His lone allegation was that Corrigan had been married to Moore and worked at the school. At the trial panel hearing, respondent offered varying explanations for those aspects of his motion—such as, the essential crux of the parents’ declarations
Even if respondent actually had evidence that Moore and Corrigan had known more about, or had been more involved with, the survey than previously claimed, that would not have justified vacating the limited judgment dismissing them from the 2014 action based on speech protected under the anti-SLAPP statutes.10
It is a closer question whether respondent also falsely certified that his motion to vacate the limited judgment in the 2014 action was not filed for any improper purpose. As noted, Judge Bagley concluded that respondent had filed his motion with the intent to continue vexatious litigation that was ill-supported by facts or law. The trial panel similarly concluded that respondent‘s motion lacked evidentiary support and that respondent had acted with an improper purpose. Certainly, the effect of respondent‘s motion was to extend ill-supported litigation, but respondent maintains that Goertzen should not have lost his coaching position and that his purpose in filing the motion was to carry out his duty to provide zealous representation to his client.
In the end, we need not determine whether respondent falsely certified that his motion in the 2014 action was not filed for any improper purpose. We already have determined that he made two other false certifications in that motion—that the allegations set out therein were supported in both fact and law—and that conduct was improper for purposes of RPC 8.4(a)(4). As established by
revive the claims against the parents, undertaken during a judicial proceeding, harmed “the procedural functioning” of the case, Maurer, 364 Or at 199, and potentially harmed the parents’ substantive rights. It therefore amounted to conduct that was prejudicial to the administration of justice under RPC 8.4(a)(4).
C. Proceedings Initiated Against Judge Bagley
Next, the Bar alleged that respondent had engaged in improper conduct when he filed both the judicial fitness complaint and the federal action against Judge Bagley. As explained, respondent had alleged judicial misconduct and bias based on factual assertions that Judge Bagley had been friends with Moore and had directed Rodrigues, in an ex parte conversation, to move for sanctions against respondent.
No evidence in the record supports either factual assertion, however. As to the claims about Moore, both Judge Bagley and Moore emphatically denied at the trial panel hearing that they knew each other or ever had communicated with each other, let alone ever were friends. And respondent‘s “evidence” to the contrary—a few LinkedIn webpages—did nothing to counter that testimony; to the contrary, additional testimony showed that, at most, the pages established that a person who had viewed Judge Bagley‘s public profile on LinkedIn also had viewed Moore‘s profile. As to the claims about Rodrigues, both Judge Bаgley and Rodrigues denied that such a
Once filed, respondent‘s judicial fitness complaint required the commission to send a follow-up inquiry to Judge Bagley; Judge Bagley to spend time responding; and the commission then to spend time deliberating about how to proceed. As noted, the commission summarily dismissed the complaint. As to the federal action, Judge Bagley‘s counsel attempted to persuade respondent to voluntarily dismiss in light of applicable principles of judicial immunity, but he refused to do so. That prompted Judge Bagley‘s counsel to file a formal motion to dismiss and respondent to object—which required court time and resources to process, in addition to time and resources already expended to process respondent‘s ill-supported complaint and to issue a pro bono referral.
We have little difficulty concluding that, in initiating both the judicial fitness complaint and the federal action against Judge Bagley, respondent engaged in improper conduсt during the course of a judicial proceeding that caused substantial harm to Judge Bagley, as well as to the commission and the federal court. Respondent‘s conduct was improper because he initiated both proceedings based on allegations of judicial misconduct and bias unsupported by any evidence. His conduct caused substantial potential and actual harm to Judge Bagley—in attacking her judicial integrity and disparaging her reputation—and also caused harm in requiring her to respond to respondent‘s unsupported allegations. It also substantially harmed the commission and the federal court, in terms of the time and resources required to process and act on respondent‘s unwarranted filings. In short, respondent‘s conduct in initiating the two proceedings against Judge Bagley violated RPC 8.4(a)(4).
D. Pro Bono Representation Without Certified Program Referral
In its complaint, the Bar identified one instance in which respondent had represented Goertzen without a pro bono referral that, it alleged, violated RPC 8.4(a)(4): For two months in the 2019 federal action against Judge Bagley—the period between filing the complaint and his securing of a referral for his representation from a certified pro bono program (the federal court program)—resрondent represented Goertzen without any referral.11 At the trial panel hearing, other than confirming with
respondent the facts just summarized, the Bar did not present any evidence about how his representation of Goertzen without a referral may have prejudiced the administration of justice, and, importantly, the Bar does not pursue that allegation on review. We therefore do not address it, although we observe that, without a proper referral from a pro bono program, respondent initiated an action without malpractice insurance and outside the scope of his license.
E. Submission of Erroneous Proposed Form of Judgment
As noted, after Judge Bagley issued her letter opinion imposing sanctions on respondent in the 2014 action, respondent submitted a proposed form of judgment that incorrectly identified both respondent and Goertzen—rather than respondent alone—as judgment debtors. In its complaint, the Bar alleged that that submission had violated RPC 8.4(a)(4). On de novo review, however, we conclude that the Bar did not prove by clear and convincing evidence that respondent‘s submission of that form of judgment amounted to anything other than a drafting error—as opposed to improper conduct that prejudiced the administration of justice.
F. Other Conduct Relating to the 2012 and 2014 Actions
Finally, the Bar highlights what it describes as additional misconduct by respondent in the 2012 and 2014 actions: moving
As already explained, under BR 4.1(c), the Bar must allege sufficient facts in connection with its charged allegations to permit the respondent lawyer “to know the nature of the charge.” See BR 4.1(c). As to the Bar‘s additional contentions, its complaint fell short of that standard. The complaint did allege relevant historical facts—describing that (1) Goertzen had filed the 2012 action and had appealed the dismissal of the parents as defendants; (2) respondent had filed the 2014 action with a similar adverse result as in the 2012 action; (3) respondent had moved to vacate the limited judgment in the 2012 action and appealed that adverse ruling (which was affirmed without opinion); and (4) respondent had appealed Judge Bagley‘s ruling imposing sanctions (also affirmed without opinion). Then, in a later paragraph, the complaint alleged generally that all the foregoing “conduct” was improper, occurred during judicial proceedings, and caused harm or had the potential to cause harm to the administration of justice and opposing parties—i.e., violated RPC 8.4(a)(4). That general allegation pertained, in part, to conduct undertaken by others, not respondent. And nowhere in its complaint did the Bar describe why or how any particular conduct on respondent‘s part in connection with the actions just described amounted to improper conduct that had, or could have had, a prejudicial effect on the administration of justice.
Therefore, those allegations can be read as presenting historical facts that provide context for the allegations of misconduct that the Bar clearly identified as violations of RPC 8.4(a)(4); at best, they are ambiguous as to whether the Bar was relying on them as violations of the rule. Because the Bar‘s complaint did not provide sufficient notice to respondent that any additional conduct, beyond what we already have addressed, was the basis for any RPC 8.4(a)(4) violation, we do not consider any of that conduct in our analysis of the alleged rule violation or the appropriate sanction.
In sum, on the merits of the Bar‘s complaint that respondent violated RPC 8.4(a)(4), we conclude that respondent engaged in the following instances of misconduct that prejudiced the administration of justice: making two false certifications in his motion to vacate the limited judgment entered in the 2014 action; filing the judicial fitness complaint against Judge Bagley; and filing the federal action against Judge Bagley, the Deschutes County Circuit Court, and Deschutes County. We therefore agree with the trial panel that the Bar proved its single alleged violation of RPC 8.4(a)(4) by clear and convincing evidence, and we turn to consider the appropriate sanction.
IV. SANCTION
In determining the appropriate sanction, we refer to the American Bar Association‘s Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) for guidance. We first identify the duty violated, respondent‘s mental state, and the injury caused. We next assess the appropriate preliminary sanction and determine whether any aggravating or mitigating circumstance affects that preliminary assessment. Finally, we consider applicable case law. See, e.g., In re Conry, 368 Or 349, 372, 491 P3d 42 (2021) (so explaining). Applying that methodology, we conclude that a one-yеar suspension is appropriate.
A. Duty Violated, Respondent‘s Mental State, and Harm
We begin with the duty violated. By making false certifications in his motion to vacate the limited judgment entered in the 2014 action and initiating both proceedings against Judge Bagley, respondent violated his duty to avoid conduct prejudicial to the administration of justice—a duty owed to the legal system, the legal profession, and the public. See In re Jaffee, 331 Or 398, 409, 15 P3d 533 (2000) (conduct prejudicial to administration of justice violates duties to public
Turning to the mental states that may apply, the ABA Standards define “knowledge” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” ABA Standards at 7. And the ABA Standards define “negligence” as “the failure *** to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” Id.
Considering the judicial fitness complaint and the federal action that respondent initiated against Judge Bagley, we readily conclude that respondent acted “knowingly.” His factual assertions of judicial misconduct and bias in both proceedings were not supported by any credible evidence.
As for the false certifications in respondent‘s motion to vacate filed in the 2014 action, respondent chose to take an exceptionally aggressive stance in his representation of Goertzen. After reviewing the record, we conclude that respondent acted at least negligently when he filed that motion: He failed to heed a substantial risk that the motion advanced unsupported allegations, thereby deviating from what a reasonable lawyer would have done. ABA Standards at 7.
As to injury, respondent‘s misconduct caused actual and potential injury to his client, the parents, Judge Bagley, the legal system, and the legal profession. See ABA Standard 7 (defining “[i]njury” as harm to client, public, legal system, or profession as a result of misconduct, ranging from “serious” injury to “little or no” injury; defining “[p]otential injury” as harm that is reasonably foreseeable at the time of the misconduct and probably would have resulted if not for some intervening factor or event). In making false certifications in his motion to vacate, respondent caused potential injury to Goertzen by exposing him to potential liability for costs, fees, and sanctions. And, more significantly, he caused substantial actual harm to the parents, including causing them to unnecessarily incur additional attorney fees and to experience renewed stress and anxiety from respondent‘s attempt to revive litigation already wholly resolved in their favor; causing damage to their reputations and embarrassment resulting from unfounded accusations of fraud that were publicized in local and regional news media; and, potentially, exposing them to civil liability.
Respondent‘s misconduct also caused actual harm to Judge Bagley, in the form of time and effort to respond to the judicial fitness complaint and the federal action, as well as impugning her professional reputation by raising unfounded bias accusations. And that same misconduct caused damage to the justice system, because respondent‘s unfounded filings and complaints required the commission and the federal court to expend time and resources to process filings, investigate a fitness complaint, issue a pro bono referral, and deliberate and issue resolutions.
Finally, respondent‘s misconduct causеd substantial harm to the legal profession. In that regard, the parents testified that respondent‘s efforts to extend the litigation—through his unsupported and factually inaccurate motion to vacate—caused them to view the court system as flawed. In particular, they did not understand how the system was unable to stop what they perceived as respondent‘s “vendetta” against them and how he was permitted to use the judicial system as a weapon to pursue unfounded claims.
We conclude that the appropriate preliminary sanction is suspension, for two reasons. First, respondent knowingly engaged in misconduct when he initiated the two proceedings against Judge Bagley. See ABA Standard 6.22 (suspension generally appropriate when lawyer knowingly brings nonmeritorious claim or violates court rules and causes actual or potential injury to a party). Second, although we have concluded that the record falls short of establishing that respondent
B. Aggravating and Mitigating Circumstances
We turn to applicable aggravating circumstances. “[A]ggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” ABA Standard 9.21.
First, respondent has substantial experience in the practice of law. ABA Standard 9.22(i). He was admitted to the California Bar in 1976 and the Oregon Bar in 1993.
Second, respondent engaged in a pattern of misconduct—a pattern of relying on allegations unfounded in law and fact to support his litigation strategy. ABA Standard 9.22(c). Although this court previously has declined to apply the “pattern of misconduct” aggravating factor when a lawyer has not violated rules “in more than one case or matter” and the violation of RPC 8.4(a)(4) arose from a single course of conduct in a single matter, McGraw, 362 Or at 696, that aggravating factor applies in this case. Despite the single violation of RPC 8.4(a)(4) charged, respondent engaged in conduct prejudicial to the administration of justice in three separate proceedings—the 2014 action, the judicial fitness proceeding, and the federal action against Judge Bagley.
Third, we agree that, at least to some degree, respondent acted with a selfish motive, an aggravating factor under ABA Standard 9.22(b). He took actions at least in part to satisfy his own intense desire to prevail in the various proceedings, even though ultimately on Goertzen‘s behalf. Indeed, Goertzen testified at the trial panel hearing that, by the time of the mediation that completed the appeals, he still did not understand the court process, why it had taken so long, and what was needed to stop it.
Finally, respondent has refused to acknowledge the wrongful nature of his conduct. We agree with the Bar that respondent has failed to acknowledge that his conduct was detrimental in any respect, specifically that he caused harm to the parents, Judge Bagley, the court system, and the legal profession. That is an aggravating factor under ABA Standard 9.22(g). McGraw, 362 Or at 695.
At the same time, we do not accept the Bar‘s argument that other instances of respondent‘s conduct during the disciplinary proceeding reflect a refusal to acknowledge wrongful conduct, as opposed to respondent‘s attempt to defend his factual and legal positions in the proceeding, such that expanded application of that factor is not appropriate. See In re Davenport, 334 Or 298, 321, 49 P3d 91, modified and adh‘d to on recons, 335 Or 67, 57 P3d 897 (2002) (“Every lawyer should have the opportunity to defend against accusations respecting his or her personal character and professional responsibility without reprisal for doing so.“). And, contrary to the Bar‘s request, we do not apply ABA Standard 9.22(f), which treats making false statements or engaging in other deceptive processes in the disciplinary process, as an aggravating factor. After reviewing the record, we conclude that the Bar‘s examples fall short.12
“[M]itigating circumstances are any considerations or factors that may justify a reduction
C. Prior Case Law and Sanction
Turning to applicable case law, the Bar and the trial panel have noted that this court has suspended lawyers for more than one year for making misrepresentations and engaging in unnecessary litigation. In McGraw, 362 Or at 668, for example, the court imposed an 18-month suspension after the respondent lawyer had abused the litigation process over many years in his role as a wife‘s conservator by taking numerous, burdensome actions against the husband in violation of RPC 8.4(a)(4) and RPC 4.4(a) (respect for rights of third persons). See also Stauffer, 327 Or at 69-70 (two-year suspension for significant amount of unnecessary litigation and misrepresentations, with aggravating factors). And in one case, the Bar points out, the court reciprocally
disbarred a lawyer for intentionally and knowingly engaging in protracted litigation in multiple forums over a course of years with the intention to harass and delay, despite admonitions, orders, and sanctions imposed by involved courts. In re Sanai, 360 Or 497, 501, 543, 383 P3d 821 (2016).
But several other cases suggest that a six-month to nine-month suspension is appropriate. First, in Paulson, 341 Or 13, 28-29, 34, the respondent lawyer was suspended for repeatedly ignoring or violating procedural rules in two proceedings to his clients’ own significant detriment—aggregately resulting in prolonged and more expensive litigation and violating the predecessor rule to RPC 8.4(a)(4). See id. at 29 (lawyer brought frivolous claims that lacked merit and continued to pursue them “long after it would have been apparent to any reasonable lawyer that the claims were exceedingly weak and that it was not in his clients’ best interest to pursue them“; lawyer also conducted litigation “in an irresponsible and amateurish manner,” to the prejudice of his clients). After concluding that the lawyer had acted knowingly and that several aggravating factors applied, the court imposed a six-month suspension.
Second, in In re Wilson, 342 Or 243, 149 P3d 1200 (2006), the respondent lawyer intentionally had engaged in dishonesty and misrepresentation, as well as conduct prejudicial to the administration of justice, when she made false statements to opposing counsel and court staff and filed an affidavit containing false statements concerning her own unavailability on a scheduled trial date. After applying two aggravating factors (substantial experience and prior disciplinary record), and also noting the egregious nature of the lawyer‘s dishonest conduct—in particular, in filing an affidavit containing false statements—the court imposed a six-month suspension.
Finally, in In re Dugger, 334 Or 602, 54 P3d 595 (2002), the respondent lawyer knowingly had made misrepresentations to the court on two occasions, including making false statements under oath, and also had engaged in conduct prejudicial to the administration of justice. After emphasizing that intentionally or knowingly making fаlse statements under oath is among the most serious of possible violations, and applying several aggravating factors, the court imposed a nine-month suspension.
Respondent‘s misconduct bears some similarity to those cases, but it also differs in some respects. First, although the Bar did not allege or prove that respondent made false statements in violation of what is now RPC 8.4(a)(3) (allegations that the Bar did prove in Wilson and Duggar), the Bar did allege and prove that he made false certifications, amounting to conduct prejudicial to the administration of justice under RPC 8.4(a)(4). Second, although we have concluded that, in making those false certifications, respondent acted at least negligently, rather than knowingly or intentionally, we have determined that his conduct caused significant harm to participants in the legal system, to the courts, and to the legal profession. Third, and most significantly, respondent not only made false certifications in one proceeding, but he initiated two additional proceedings, alleging judicial misconduct and bias, entirely without foundation, against the judge who ruled against him after he made his false certifications. All of that constituted knowing conduct
On balance, considering respondent‘s collective misconduct and the actual and potential harm that it caused, the duties violated, aggravating and mitigating factors, and applicable case law, we, like the trial panel, conclude that the appropriate sanction is a one-year suspension. Respondent at least negligently engaged in misconduct in the 2014 action that is similar to the knowing conduct that warranted a six-month suspension in Paulson. And then, apparently in retaliation, respondent engaged in serious misconduct by knowingly filing a judicial fitness complaint against Judge Bagley and a federal action against her and others without any basis in fact. As we have described, his conduct in all three proceedings caused substantial harm to multiple individuals, the court system, and the legal profession. Considering the aggravating factors—including that respondent does not acknowledge causing harm and his pattern of continuing to engage in improper tactics without deterrence, even after he was sanctioned in the 2014 action—a one-year suspension is warranted.
Respondent is suspended from the practice of law for one year, effective 60 days from the date of this decision.
Notes
“C(1) An attorney or party who signs, files or otherwise submits an argument in support of a pleading, motion or other document makes the certifications to the court identified in subsections (2) to (5) of this section, and further certifies that the certifications are based on the person‘s reasonable knowledge, information and belief, formed after the making of such inquiry as is reasonable under the circumstances.
“C(2) A party or attorney certifies that the pleading, motion or other document is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
“C(3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion or other document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.
“C(4) A party or attorney certifies that the allegations and other factual assertions in the pleading, motion or other document are supported by evidence. Any allegation or other factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery.”