In re Complaint as to the Conduct of Mark G. OBERT, Accused.
OSB 08-134, 09-122, 09-123; SC S059072
Supreme Court of Oregon
July 19, 2012
282 P.3d 825
Argued and submitted March 9, accused suspended from practice of law for period of six months, commencing 60 days from date of this decision July 19, 2012
Mary Cooper, Assistant Disciplinary Counsel, argued the cause and filed the brief for the Oregon State Bar.
PER CURIAM
* De Muniz, J., did not participate in the consideration or decision of this case.
In this lawyer disciplinary proceeding, the Oregon State Bar (the Bar) charged Mark G. Obert (the accused) with nine violations of the Oregon Rules of Professional Conduct (RPC) arising out of his representation of two separate clients, Randy Favre and Ian Wilson. On the Favre matter, the Bar alleged violations of
The trial panel found the accused guilty of eight charges. The one charge for which the panel found the accused not guilty was the alleged violation of
We review a decision of the trial panel de novo,
I. FACTS
As we have noted, the charges in this case arise out of two unrelated matters: the Favre matter and the Wilson matter.
A. Favre Matter
On Friday, January 25, 2008, Oregon resident Randy Favre was arrested on a 24-year-old warrant issued by the State of Florida. He was taken into custody in Marion County. Immediately following the arrest, he signed a nonjudicial waiver of his right to contest his extradition.
On Saturday, January 26, Randy‘s wife, Karen, spoke with the accused over the phone and hired him to represent her husband in the Oregon extradition proceedings. Her goal was for the accused to obtain Randy‘s release and to deal with the Florida charges after he was out of custody. At that time, Karen was unaware that her husband had signed a waiver of extradition. The accused told her that she could either pay a flat fee of $1,200 or his hourly rate of $210 per hour. She chose to pay a flat fee and gave the accused her credit card information. She did not sign a fee agreement.
On Sunday evening, January 27, the accused met with Randy Favre at the Marion County Jail. At that point, Randy informed the accused that he had signed a waiver of extradition. The accused told him that, because of the waiver, there was little that he could do. Still, the accused agreed to determine the status of the Florida case and attempt to obtain Randy‘s release, subject to a voluntary appearance in Florida secured by a release agreement or otherwise. He also informed Randy that he was not licensed to practice law in Florida and that Randy would have to obtain counsel in Florida to address the pending criminal charges.
On Monday morning, January 28, Randy Favre was released from custody because Florida decided not to extradite. The accused later claimed to have left a telephone message that same morning with the Hillsboro County, Florida, Sheriff‘s Office to discuss the charges pending
Randy Favre called the accused and left a message that he had been released. When the accused listened to the message, he believed that, because Randy was out of custody, his representation was complete. Accordingly, on the following day, January 29, the accused processed Karen Favre‘s credit card for $1,200 and deposited the funds into his business bank account.
The Favres did not believe that the accused‘s representation was complete. They attempted repeatedly to contact the accused by telephone and in person. The accused did not return their calls. Finally, in April 2008, Karen Favre contested the credit card transaction, asserting that the accused did not provide any legal services, and forwarded a copy of the letter to the accused. The accused did not respond to the letter or notify the credit card company that he disputed her allegations. In May 2008, the credit card company reclaimed $1,200 from the accused‘s business bank account.
On July 18, 2008, the Favres complained to the Oregon State Bar, asserting that the accused charged them $1,200 without providing any legal services. On July 23, the Bar forwarded a copy of the complaint to the accused and requested that he respond by August 6. The accused did not respond.
On August 12, 2008, the Bar sent, by certified mail return receipt requested, a follow-up letter concerning the Favre complaint. The Bar noted that it had not yet received a response to its July 23 letter and that failure to respond could result in the matter being referred to disciplinary counsel. The accused‘s secretary, Blair Wolfe, signed for the receipt of the letter. The accused, however, did not respond to it. The matter was then referred to disciplinary counsel.
On September 3, 2008, disciplinary counsel for the Bar sent the accused a letter requesting a response to the allegations in the Favre complaint by September 24. Disciplinary counsel noted that a failure to respond by that
On October 7, 2008, disciplinary counsel sent a follow-up letter to the accused. Again, disciplinary counsel reminded the accused that failure to respond could result in the matter being referred to the LPRC. Alma Vasquez, a new secretary whom the accused had recently hired, signed a receipt for that letter. The accused did not respond to it, however.
On October 30, 2008, the matter was referred to the LPRC. An LPRC investigator, David Carlson, called the accused and left a message with his secretary in late November 2008. During the following weeks, the accused and Carlson played “phone tag.”
On December 16, 2008, Carlson met the accused at the Marion County Courthouse, where the accused was beginning a trial. Carlson briefly discussed the Favre matter with the accused and requested that he provide a written response. Later that day, the accused sent a letter to the Bar responding to the Favre matter. The letter did not, however, include any explanation about his failure to respond to the prior Bar inquiries.
On December 17, 2008, Carlson requested additional information from the accused, specifically, bank records concerning the Favre matter and an explanation for his failure to respond to the letters that the Bar had sent him in July, August, September, and October. The accused did not respond.
On January 23, 2009, the LPRC subpoenaed the accused, requiring him to appear on February 12 and to provide additional documentation regarding the Favre matter. Three days later, on January 26, the accused sent the LPRC a letter with the requested bank records along with a brief explanation that his earlier failures to respond were due to unspecified “issues with office staff during the latter part of the summer and fall.” He later explained that his secretary, Wolfe, had failed to forward the Bar‘s letters
Considering those facts, the trial panel concluded that the accused had violated
B. The Wilson Matter
Vicki and Michael Edwards operated several businesses. Ian Wilson provided computer services for those businesses. The parties had a falling out, ultimately resulting in the Edwardses—individually and on behalf of their businesses—filing a civil action against Wilson. Their complaint alleged a number of claims, including intentional interference with economic relations on behalf of one of the businesses and intentional infliction of emotional distress on behalf of Vicki Edwards. Wilson, a personal friend of the accused, retained the accused to represent him in the litigation.
The case was tried to a jury. At the close of evidence, the trial court discussed certain issues in camera with the accused and opposing counsel. One issue was the viability of the intentional interference claim and whether the court
Ultimately, the jury found in favor of the Edwardses on all counts. The jury awarded plaintiffs $50,000 in damages on the intentional infliction of emotional distress claim and $30,000 in damages on the intentional interference claim. After the jury left, the trial court again reiterated that, if Wilson filed a JNOV motion, the court would grant it and enter judgment in favor of Wilson on the intentional interference claim. The court said that it would also reexamine the intentional infliction of emotional distress claim. The trial court cautioned the accused about the timing requirements of the rules for filing post-trial motions:
“Counsel, you both need to read the timing of the motion for judgment NOV, because I did indicate that as to intentional interference with economic relations, I am going to enter a judgment notwithstanding the verdict for the defendant on that count.
“And then we still have issues, one way or the other, on the—and I assume you‘re going to be filing an NOV on the intentional infliction of emotional distress.”
Counsel replied, “That‘s correct.” The court continued with its caution about filing deadlines:
“The motion must be heard and determined by the court within 55 days of the time of the entry of the judgment and not thereafter, and if not so heard or determined within that time, the motion shall be conclusively denied. So we need to get a judgment in on this, and then you‘ve got ten days after the judgment is—not signed or filed, but entered, in which to file whatever appropriate motions in that regard.
“And the same thing, if you have motions for a new trial[.]”
The trial court entered judgment on March 26, 2007. The accused, however, did not file a JNOV motion on either the claim for intentional interference or for intentional infliction. Instead, on March 30, the accused filed a notice of appeal.
Then, on April 9—14 days after entry of the judgment—the accused moved for JNOV and for a new trial on both claims. The Edwardses opposed those motions, arguing that the trial court lacked jurisdiction, because the accused filed a notice of appeal. They also argued that, in any event, the motions were untimely.
On April 10, 2007, the Court of Appeals informed the accused that his notice of appeal was deficient for failure to comply with several provisions of the Oregon Rules of Appellate Procedure. The court gave him 14 days to correct the errors by filing an amended notice of appeal.
In the meantime, on April 16, 2007, the trial court held a hearing on the motions filed by the accused. The trial court agreed with the Edwardses that it lacked jurisdiction to address the motions because the accused had filed a notice of appeal. The trial court instructed the accused that, if he wanted the trial court to address those motions, he would need to dismiss the appeal so that jurisdiction would return to the trial court. The accused responded that he would do so immediately.
Nevertheless, on April 23, 2007, the accused filed an amended notice of appeal to correct the deficiencies in his original notice. The following day, the trial court issued an order memorializing its decision of the previous week denying the post-trial motions for lack of jurisdiction. On April 27, the Court of Appeals—apparently unaware that the trial court had denied the motions for JNOV and a new trial—sua sponte dismissed the appeal because of the pending motions. The court‘s order specifically instructed that any pending post-trial motion must be decided within 55 days of the entry of judgment or be deemed denied the following day. That 55-day deadline, the Court of Appeals
On May 29, Wilson sent the accused an e-mail asking whether the matter had been set for a hearing before the trial court. Two days later, Wilson sent another e-mail asking about the status of the case. That same day, Wilson sent a second e-mail asking whether a stay of proceedings had been entered. The following week, Wilson sent a follow-up e-mail again asking about a stay of proceedings. There is no e-mail or written response from the accused. He later explained, however, that, in the months following the entry of judgment, he regularly reported back to Wilson by telephone with updates on the status of the case; Wilson later agreed that there were indeed multiple telephone calls during that time.
On June 7, 2007, the accused sent the trial court a letter reporting that the Court of Appeals had dismissed the appeal and remanded the case to the trial court. The accused requested that the trial court set a hearing on his motions for JNOV and a new trial as soon as possible. He also enclosed a “Motion to St[ay] Enforcement of Judgment Pending Appeal,” although he did not have Wilson post the required bond.
The Edwardses opposed the motions for JNOV and for a new trial, arguing that the motions were not timely, having been filed 14 days after entry of the judgment, instead of the 10 days that the rule requires. They also asserted that the motion to stay was without merit because there was no appeal currently pending and Wilson had not posted a bond as required by statute. The trial court denied the motion to stay on June 18, but took no immediate action on the motions for JNOV and for a new trial.
A month later, on July 20, 2007, the accused sent an e-mail to Wilson reporting that he had just checked the appellate court database, “and it doesn‘t look like they have sent the case back to circuit court.” The accused later explained that, at the time, he had been working under the
The Edwardses were not working under the same misapprehension. On July 25, 2007, they sent a letter to the trial court clerk requesting that the clerk enter an order acknowledging that the 55-day deadline for a decision regarding the motions for JNOV and for a new trial had passed and, therefore, were deemed denied pursuant to
On August 6, 2007, the accused and Wilson exchanged several e-mails about the case. The accused asked Wilson about making payments on the outstanding balance owing. Wilson asked about the status of the case. The following day, Wilson sent another e-mail asking whether the trial court had scheduled a hearing on the pending motions. On August 10, Wilson again e-mailed, this time asking whether a stay of proceedings had been granted. On September 17, Wilson again e-mailed the accused stating: “I need you to schedule a hearing for our Motion that we filed 7 months ago. Please do that today.”
The accused apparently telephoned Wilson and explained that the motions had been denied and that the time for appealing the decision may have passed. On September 18, 2007, the accused wrote Wilson a letter informing him that,
“As you know, we were going to be appealing the trial court‘s decision in your case. Pursuant to our recent discussion, it is possible that your appeal may be barred based upon not filing the Notice of Appeal within 30 days of the court‘s denial of our Motions for New Trial and Judgment Notwithstanding the Verdict. Consequently, you may have a claim against me for legal malpractice based upon my failure to timely file the Notice of Appeal in your case.”
On September 28, 2007, the accused filed a second notice of appeal and moved to set aside default and for a retroactive extension of time to file the notice of appeal. In support of the notice and motion, the accused submitted an affidavit explaining that he had failed to file a timely notice of appeal following the expiration of the 55-day deadline to decide his post-trial motions because of a misapprehension of the applicable rules. He explained that he had,
“awaited the return of the file from the Court of Appeals so the trial court could schedule the Motion for JNOV and New Trial. It was my belief that once the court received the actual file back from the Court of Appeals, the 55 day time period would then start to run again rather th[a]n from the date of the Appellate Judgment ***.”
The accused further asserted that the failure to file the notice of appeal in a timely manner was not attributable to Wilson personally. The accused later explained that he was intending to argue to the Court of Appeals that
Wilson ultimately complained to the Bar. After a hearing, the trial panel concluded that the accused violated
II. ALLEGED VIOLATIONS
A. The Favre Matter
1. RPC 1.5(a) (excessive fee)
The Bar argues that the accused violated
In this case, the issue is whether the accused collected a “clearly excessive” fee. This court has held that a lawyer violates
The accused agreed to represent Randy Favre in the Florida extradition matter. Specifically, he agreed to undertake efforts to obtain Favre‘s release. When the accused met with Favre, he learned that Favre had already signed a waiver of extradition. The accused candidly informed Favre that, due to the waiver, there was little that the accused could do for him. Still, the accused suggested that he could call the Florida authorities and attempt to negotiate some type of voluntary release agreement.
On Monday, January 28, 2008, however, the Florida authorities released Favre, before the accused had commenced any work on the matter. The accused insists that he did, in fact, commence work on the matter in three ways: (1) he visited Favre at the Marion County Jail, (2) he investigated the extradition matter, and (3) he called the Florida authorities and left a voicemail with the person in charge of extraditions in an attempt to negotiate Favre‘s release.
There is, however, no credible evidence that the accused did anything other than meet with Favre. The record contains no evidence of any investigation; certainly the accused offered neither documents nor testimony describing precisely what he investigated. The record likewise contains no evidence of any telephone calls other than the accused‘s assertion that he made them. As we have noted, the trial panel found those assertions to be “less than credible.”
Generally, “[t]his court gives weight to the trial panel‘s express credibility assessments.” In re Hostetter, 348 Or 574, 596, 238 P3d 13 (2010). When the trial panel‘s credibility determination is based on the witness‘s demeanor and supported by explicit findings on that subject, this court will give deference to the credibility determination. Id. If, however, the panel‘s credibility determination ““is based on the objective factors involving the intrinsic believability of competing inferences or evidence *** this court owes no deference to that assessment, but the panel‘s discussion may be enlightening and have persuasive force.” Id. (quoting In re Fitzhenry, 343 Or 86, 103-04 n 13, 162 P3d 260 (2007)).
The question, then, is whether simply meeting with a client constitutes a “substantial step” towards completing work on the matter. With respect to that question, we find this court‘s opinion in Balocca instructive. In that case, the lawyer agreed to prepare, file, and complete a client‘s bankruptcy proceeding for a flat fee of $550, plus expenses. Balocca, 342 Or at 282. The client paid $300 in advance. Id. at 283. The lawyer met with the client once, but performed no other work. When accused of having collected an excessive fee, in violation of the predecessor to
We agree with the trial panel that there is clear and convincing evidence that the accused did not take any substantial step towards completing work on the matter for which he accepted a $1,200 fee. He agreed to undertake efforts to obtain Favre‘s release from custody but he made no such efforts. Consequently, the accused violated
2. RPC 1.15-1 (misuse of client funds)
The Bar argues that the accused violated
“(a) A lawyer shall hold property of clients or third persons that is in a lawyer‘s possession separate from the lawyer‘s own property. Funds, including advances for costs and expenses and escrow and other funds held for another, shall be kept in a separate ‘Lawyer Trust Account’ maintained in the jurisdiction where the lawyer‘s office is situated.
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“(c) A lawyer shall deposit into a lawyer trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the fee is denominated as ‘earned on receipt,’ ‘nonrefundable’ or similar terms and complies with
Rule 1.5(c)(3) .“(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”
Under subsections (a) and (c) of those rules, a lawyer is required to deposit client funds into a trust account and may withdraw fees from that account only after they have been earned. As this court explained in Balocca of the predecessor to those rules, “[t]he critical aspect of such an arrangement is that the retainer payment is the client‘s money until the lawyer performs legal services that the client has agreed to pay for.” 342 Or at 287 (emphasis in original). Only if a lawyer enters into a written agreement explicitly denominating fees as “earned on receipt” may the lawyer be excused from depositing funds received from the client into a trust account.
In this case, the accused received funds from Karen Favre when he processed her credit card information and deposited those funds into his own general account. The sole defense that he offers for his failure to deposit the funds into a client trust account and his failure to return those funds on request is his assertion that, by the time that he obtained those funds, he had earned them. Putting aside the fact that there is no written agreement expressly designating the fees as having been earned on receipt, the fact remains that, as we have determined, the accused had not, in fact, earned $1,200 by the time that he had deposited the funds. We therefore conclude that the accused violated
3. RPC 8.1(a)(2) (failure to respond to Bar inquiry)
The Bar argues that the accused violated
“[A] lawyer *** in connection with a disciplinary matter, shall not:
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“knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by
Rule 1.6 .”
The rule does not, by its terms, include a particular deadline for responding to requests for information. But it does not preclude the Bar from including in its “lawful demand for information” a timing requirement. And, in fact, the rules expressly authorize the Bar to do so. See BR 2.6(a)(1) (providing that Disciplinary Counsel may request that a lawyer respond to ethical violation allegations within 21 days).
That certainly is the manner in which this court consistently interpreted former DR 1-103(C) (2004), the predecessor to
In this case, there is no dispute that the accused did not comply with the Bar‘s repeated requests for information in a timely manner. The Bar sent him requests for information in July, August, September, and October 2008, all of which produced no response. It was not until
The only issue, then, is whether the Bar established clear and convincing evidence that the accused “knowingly” failed to respond to its inquiries. As we have noted, the accused contends that his failure to respond earlier to the Bar‘s inquiries was a result of poor secretarial assistance from Wolfe. The trial panel found that explanation to be less than credible. We need not determine whether we agree with that credibility determination because, even assuming that the accused was truthful as to the problems that he had with Wolfe, there is no explanation for significant delays in his responses to the Bar‘s repeated requests after she left the office.
Disciplinary counsel for the Bar sent the accused a letter October 7, 2008, requesting information on the Favre complaint. The letter was received by Vasquez, the accused‘s new secretary, not Wolfe. Indeed, the accused concedes that, at least by late October or the first of November, he knew of the Bar‘s inquiries. It is important to emphasize in that regard that what the accused admits he learned at that time was that, for several months, the Bar had been asking for information and that—precisely because of his repeated failures to respond—the matter had been referred to disciplinary counsel. Yet, even knowing that, the accused did not respond until mid-December. The accused offered no explanation at all for that delay.1 Even then, his response was only partial, prompting a follow-up request from the Bar, to which the accused did not respond until February 2009, after the issuance of a subpoena. We find that the Bar established, by clear and convincing evidence, that the accused knowingly failed to respond to the Bar‘s inquiries, in violation of
1. RPC 1.1 (competent representation)
The Bar argues that the accused violated
In this case, the accused‘s post-trial representation fails to reflect the knowledge, skill, thoroughness, and preparation reasonably necessary for his representation of his client. When the jury returned a verdict in favor of the Edwardses, the trial court told the accused that, if he would file a motion for JNOV on the claim for intentional interference with economic relations, it would enter a
Then, notwithstanding that he had just filed a notice of appeal that deprived the trial court of jurisdiction to hear such motions, the accused filed motions for JNOV and for a new trial on both the intentional interference and intentional infliction claims. Moreover, he filed the motions 14 days after the entry of the judgment, not 10 days, as the trial court had explained the rules plainly require. See
The Court of Appeals sent the accused a notice of deficiency, because his notice of appeal had failed to comply with various provisions of the rules of appellate procedure. Meanwhile, the trial court held a hearing on the motions for JNOV and for a new trial and explained to the accused that the filing of the notice of appeal deprived the court of jurisdiction to act on them. The court informed the accused that he needed to dismiss the appeal, so that it could obtain jurisdiction to resolve the motions. The accused agreed. Nevertheless, the
When the Court of Appeals dismissed the appeal because of the pending post-trial motions, it included in its order explicit instructions concerning the resolution of those motions. In particular, the court explained that a 55-day deadline for decision on them that had been tolled by the filing of the notice of appeal would recommence upon the entry of the appellate judgment terminating the appeal and that, upon the expiration of that deadline, the motions would be deemed denied. That appellate judgment issued the same day.
When the 55-day deadline for decision passed, and the trial court was deemed to have denied the post-trial motions, the accused took no further action. By the deadline for filing a notice of appeal of the denial of those motions passed, the accused still took no action. Even after the Edwardses had sent a letter to the trial court notifying it that the case had become final because of the expiration of the deadline to appeal, the accused took no action. Not until two months after the deadline for appealing had passed did the accused attempt to file a late notice of appeal, asking — without any citation to authority — that the court simply allow the untimely filing.
The accused‘s representation does not reflect a few mistakes. Rather, it reflects a pattern of ignorance of the most basic of applicable rules and a failure to heed instructions of both the trial court and the Court of Appeals.
The accused insists that at least some of his actions were understandable mistakes. In particular, he contends that his untimely filing of the motions for JNOV and for a new trial 14 days after entry of judgment was a product of his misunderstanding of how the deadline was calculated. According to the accused, he thought that, under
But, even assuming for the sake of argument that the accused was merely negligent in failing to file the post-trial motions in a timely fashion, there remain the multiple other instances of failure to comply with rules, failure to follow court instructions, and failure to act by other deadlines, all of which are unexplained. We conclude that there is clear and convincing evidence that the accused violated RPC 1.1.
2. PC 1.4(a) (keeping client reasonably informed)
The Bar argues that the accused violated RPC 1.4(a) by failing to keep Wilson informed of the status of the Edwards litigation, despite repeated requests from Wilson, as reflected in a lengthy series of e-mails between the accused and Wilson. The accused responds that the Bar has simply failed to meet its burden of proof. According to the accused, the e-mails on which the Bar relies demonstrate only that, on a few occasions, Wilson — whom the trial panel found to be even less credible than the accused — was impatient to
RPC 1.4(a) provides that, “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” “[D]eciding whether a lawyer has violated RPC 1.4 requires a careful examination of all of the facts.” In re Groom, 350 Or 113, 124, 249 P3d 976 (2011). In this case, a close examination of the relevant e-mails leads us to conclude that there is insufficient evidence that the accused violated RPC 1.4(a).
There is indeed a lengthy series of e-mails between the accused and Wilson from March 2007 through the end of the year. But there is little that demonstrates a failure of the accused to keep Wilson informed. They reflect that the accused and Wilson spoke with one another by telephone about the case, although the details of what was reported cannot easily be gleaned. And they show that, in some instances, Wilson asked about the status of the case, but the extent to which the accused responded simply cannot be determined from the record.
In late May 2007, after the Court of Appeals returned the matter to the trial court, Wilson sent the accused an e-mail asking whether the matter had been set for hearing. Two days later, he sent another, similar, e-mail. And several days after that, he sent another. But there is no more mention of the matter for more than a month.
In late July, the accused sent an e-mail to Wilson reporting that the Court of Appeals had not yet returned the case file to the trial court. Two weeks later, the accused and Wilson exchanged several e-mails about Wilson‘s outstanding balance; Wilson asked about the status of the case. Three days after that, Wilson asked whether there had been a stay of proceedings. A month later, in mid-September 2007, Wilson demanded that the accused schedule a hearing on the pending post-trial motions. The following day, the accused reported to Wilson that the motions already had been denied.
3. RPC 3.1 (taking frivolous positions)
The Bar argues that the accused violated RPC 3.1 by asserting frivolous arguments when he, among other things, filed an untimely second appeal, along with a motion to set aside default and for a retroactive extension of time to file the appeal. The accused responds that, although his arguments concerning the late filing of the second appeal might not have been well taken, they were not frivolous. According to the accused, he simply argued for an extension of existing law to “salvage Mr. Wilson‘s appeal, not for frivolous purposes.” Although the accused made no mention of the legal basis for his argument for the extension of existing law at the time he filed his second appeal, he now asserts that he intended to argue that the court should “extend”
RPC 3.1 provides, in part:
“In representing a client or the lawyer‘s own interests, a lawyer shall not knowingly bring or defend a proceeding,
assert a position therein, delay a trial or take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law[.]”
The rule prohibits a lawyer from “knowingly” asserting a position during litigation that is “frivolous.” The rule does not define “frivolous.” But this court has held that a lawyer takes a “frivolous” position when there is no basis in law or fact for that legal position. In re Smith, 348 Or 535, 544, 236 P3d 137 (2010) (“[T]he pivotal legal issue is whether there was a nonfrivolous basis in law or fact for the accused‘s actions.“).
Turning to the circumstances of this case, we conclude that there was no basis in law or fact for the accused‘s argument that the Court of Appeals could authorize him to file a notice of appeal beyond the statutory deadline. It is well settled that appellate jurisdiction is purely statutory. As this court explained in City of Portland v. Duntley, 185 Or 365, 371, 203 P2d 640 (1949), “[e]xcept for that limited class of cases in which the Supreme Court exercises original jurisdiction, this is an appellate court deriving its jurisdiction from the statutes. They are the sole source of appellate jurisdiction.”
Nothing in
The accused does not explain — and we do not understand — how
4. RPC 8.4(a)(3) (misrepresentation)
The Bar finally argues that the accused violated RPC 8.4(a)(3). According to the Bar, the accused misrepresented the state of the Edwards case to his client Wilson by knowingly failing to report to Wilson that he had failed to obtain a stay of proceedings and that the motions for JNOV
RPC 8.4(a) states, in part:
“It is professional misconduct for a lawyer to:
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“(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer‘s fitness to practice law[.]”
In this case, the Bar‘s argument that the accused violated that rule is predicated on its assertion that the accused failed to report to his client Wilson in the first place. We have concluded, however, that the Bar failed to establish that the accused, in fact, failed to report to Wilson. Because the Bar did not establish the factual predicate for its assertion that the accused violated RPC 8.4(a)(3), we conclude that the trial panel did not err in concluding that the accused did not violate RPC 8.4(a)(3).
III. SANCTION
Having concluded that the accused violated the foregoing rules of professional conduct, we must determine the appropriate sanction. To determine the appropriate sanction, this court engages in a two-step analysis. First, we determine an “initial presumptive sanction,” based on our analysis of (1) the ethical duty or duties that the accused violated, (2) the accused‘s mental state, and (3) the actual or potential injury that the accused caused. Hostetter, 348 Or at 598. Second, we then adjust that sanction based on aggravating or mitigating circumstances that may apply and consider whether that adjusted sanction is consistent with our case law. Id. In determining the appropriate sanction, we take into account the American Bar Association‘s Standards for Imposing Lawyer Sanctions (2005). The purpose of the sanction is not to penalize; rather, it is to “protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession.” Hostetter, 348 Or at 598 (quoting ABA Standard 1.1).
We begin with the ethical duties violated. The accused committed seven violations of the rules of professional conduct. Those violations breached the accused‘s duties to his clients, the legal system, and the legal profession. ABA Standard 4.1 (failure to properly handle client funds violates duty owed to client); ABA Standard 4.5 (failure to provide competent representation violates duty owed to client); ABA Standard 6.2 (bringing a frivolous action violates duty owed to legal system); ABA Standard 7.0 (charging a clearly excessive fee violates duty owed to legal profession).
As for the mental state for those violations, the accused asserts that he acted “negligently,” while the bar contends that the accused committed the violations “knowingly.” A lawyer acts with “negligence” if the lawyer “fails to be aware of 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.” ABA Standards at 10. A lawyer acts with “knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.” Id.
In the Favre matter, we find that the accused violated RPC 1.5(a), RPC 1.15-1(a), (c), and (d), and RPC 8.1(a)(2) knowingly. As to the fee that the accused charged Favre, the accused was aware of the amount of that fee and the lack of work that he performed on the extradition matter. As to the failure to respond to the bar inquiries regarding the Favre matter, the accused knew of his obligation to respond and failed to do so in a timely manner.
In the Wilson matter, we find that the accused violated RPC 1.1 negligently but that he violated RPC 3.1 knowingly. We agree with the trial panel that the accused “demonstrated a woeful lack of competence in his post-trial actions.” Still, we do not think the evidence supports a finding that he did so knowingly. Instead, it appears that the accused failed to properly research the applicable post-trial and appellate issues and, thus, was unaware of the “substantial risk that circumstances exist or that a
In both matters, the accused‘s misconduct caused actual injury. Hostetter, 348 Or at 600 (defining “actual injury” as the “actual harm to a client, the public, the legal system, or the profession“). As to the Favre matter, the accused caused actual, financial harm to his client, Favre, because the accused collected an excessive fee of $1,200. Besides the direct, financial harm, the accused clearly caused Favre anxiety and aggravation. In re Snyder, 348 Or 307, 321, 232 P3d 952 (2010) (“Client anguish, uncertainty, anxiety, and aggravation are actual injury under the disciplinary rules.“). Additionally, by failing to comply with the trust account rules, RPC 1.15-1(a), (c), and (d), in that matter, the accused “caused actual harm to the legal profession.” Peterson, 348 Or at 343. Last, the accused caused actual injury to the legal system when the accused failed to respond to the bar‘s lawful requests for information on the Favre matter. In re Koch, 345 Or 444, 456, 198 P3d 910 (2008).
Turning to the Wilson matter, the accused‘s violation of RPC 1.1 caused actual harm to Wilson. Specifically, because the accused failed to move for judgment notwithstanding verdict, Wilson was subject to a $30,000 judgment that he most likely would not have been had the accused filed the motion. The accused‘s violation of RPC 3.1 in the Wilson matter also caused actual injury to the legal system by wasting judicial resources in the handling of the frivolous notice of appeal filed by the accused.
Considering the duties violated and the injuries caused in the Favre matter, the presumptive sanction is suspension. ABA Standard 4.12 (“Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.“); ABA Standard 7.2 (“Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a client, the public, or the legal system.“). As to the Wilson
B. Aggravating and Mitigating Circumstances
We next consider the aggravating and mitigating circumstances. There are four aggravating factors. First, the accused has a history of prior disciplinary offenses. ABA Standard 9.22(a). See In re Obert, 336 Or 640, 642, 89 P3d 1173 (2004) (accused was suspended for 30 days for violating former DR 6-101(B) (2004) (neglect), former DR 5-105(E) (2004) (representing multiple current clients whose interests conflict), former DR 1-102(A)(3) (2004) (misrepresentation), and former DR 9-101(C)(4) (2004) (failure to return client property promptly)).
Second, the accused‘s current violations exhibit a pattern of misconduct in both matters. ABA Standard 9.22(c). In the Wilson matter, the accused first violated his duty of competence, RPC 1.1. In an attempt to fix his mistake, he filed a frivolous notice of appeal, RPC 3.1. In the Favre matter, he collected an improper fee, RPC 1.5(a), wrongfully deposited it in his business account, RPC 1.15-1(a) and (c), and did not promptly refund the monies to the client, RPC 1.15-1(d). Third, the accused committed multiple offenses. ABA Standard 9.22(d). Fourth, the accused has been practicing law in the State of Oregon since 1996 and, thus, has substantial experience in the practice of law. ABA Standard 9.22(i).4
There are two relevant mitigating factors. First, in the Wilson matter, the accused fully and freely disclosed all relevant information to the disciplinary board and fully cooperated with that investigation. ABA Standard 9.32(e). Granted, the same cannot be said of the Favre matter. Second,
The accused argues that, with respect to the Favre matter, this court should also consider his good-faith effort to make restitution or rectify consequences of misconduct, ABA Standard 9.32(d), because Favre received a refund of the $1,200 fee. That mitigating factor, however, is inapplicable. Per ABA Standard 9.4(a), the “forced” restitution by Favre‘s credit card company does not weigh in the accused‘s favor.
In summary, the aggravating factors outweigh the mitigating factors. Considering that fact in conjunction with the presumptive sanction for the accused‘s seven violations, suspension is necessary. To determine the appropriate length of suspension, we turn to this court‘s case law.
C. Case Law
Although “case-matching in the context of disciplinary proceedings ‘is an inexact science,‘” particularly when the case involves “multiple violations in multiple matters,” the court‘s case law can “provide some guidance” as to the appropriate length of suspension. Hostetter, 348 Or at 602 (quoting In re Stauffer, 327 Or 44, 70, 956 P2d 967 (1998)). Reviewing this court‘s previous cases, it is appears that several of the accused‘s violations, standing alone, would generally result in suspension for 30 to 90 days.
For example, violation of RPC 1.15-1 (trust account rules) usually results in suspension for 30 to 60 days. See Peterson, 348 Or at 345 (suspended for 60 days for violation of RPC 1.15-1(a) and (c)); Snyder, 348 Or at 324 (suspended for 30 days for violation of RPC 1.4 and RPC 1.15-1(d)); In re Eakin, 334 Or 238, 257-59, 48 P3d 147 (2002) (suspended for 60 days for violations of former DR 9-101(A), (C)(3), and (C)(4), which are the substantially similar predecessors of RPC 1.15-1).
Violation of RPC 8.1(a)(2) (failure to respond) can result in a public reprimand or, in more flagrant cases, suspension for 60 days. In re Haws, 310 Or 741, 753-54, 801 P2d 818 (1990) (noting that, generally, a “reprimand would suffice,” but that 63 days’ suspension was appropriate for
Violation of former DR 6-101(A) (2004) (failure to provide competent representation), which is the predecessor to RPC 1.1, can result in suspension for 30 days or as much as 90 days when violation of that rule is combined with other violations and aggravating factors. Bettis, 342 Or at 242 (suspension for 30 days for failing to provide competent representation); In re Gresham, 318 Or 162, 164-69, 864 P2d 360 (1993) (suspension for 91 days for failure to provide competent representation, neglecting a legal matter, and conduct prejudicial to the administration of justice; several aggravating factors present).
Similarly, violation of former DR 2-106(A) (2004) (excessive fee), the predecessor to RPC 1.5, can result in a public reprimand for a single, isolated violation, In re Paulson, 335 Or 436, 438, 71 P3d 60 (2003), suspension for 30 days when there is an excessive fee rule violation and other trust account rule violations, In re Fadeley, 342 Or 403, 414, 153 P3d 682 (2007), or as much as 90 days’ suspension for collecting an excessive fee combined with other rule violations and aggravating factors, Balocca, 342 Or at 298.
Last, in a recent case, this court concluded that the appropriate sanction for violation of RPC 3.1 (frivolous action), along with other rule violations involving dishonest conduct, was suspension for 90 days. Smith, 348 Or at 558. Considering the accused‘s violations as a whole in light of the usual sanction for an individual violation of each of the rules violated in this case, suspension from five to 11 months is appropriate.
In this case, we agree with the trial panel that six months’ suspension is the appropriate sanction. The accused caused actual injury to his clients, the Bar, the legal system, and the legal profession. There are several significant aggravating factors present: the accused was subject to discipline on a prior occasion and, in this case, committed multiple violations. Based on those facts and our previous cases outlined above, we conclude that six months will impress upon the accused the gravity of his violations and the significant impact his actions had on his clients.