In re Sanai

• Citation: 360 Or. 497,383 P.3d 821
• Decision Date: 27 October 2016
• Docket Number: SC S063514,OSB 13100
• Parties: In re Complaint as to the Conduct of Fredric Sanai, OSB #981372, Accused.
• Court: Supreme Court of Oregon

360 Or. 497

383 P.3d 821

In re Complaint as to the Conduct of Fredric Sanai, OSB #981372, Accused.

OSB 13100

SC S063514

Supreme Court of Oregon.

Argued and submitted on the record on June 15, 2016.

October 27, 2016

Fredric Sanai, Lake Oswego, argued the cause and filed the briefs for the accused.

Kellie F. Johnson, Assistant Disciplinary Counsel, Tigard, argued the cause and Susan Roedl Cournoyer, Assistant Disciplinary Counsel, filed the brief on behalf of the Oregon State Bar.

En Banc

PER CURIAM.

This is a reciprocal discipline review proceeding conducted under Oregon State Bar Rules of Procedure (BR) Title 10 and BR 3.5. Fredric Sanai (the accused) was disbarred by the Washington Supreme Court in June 2013 for misconduct in a variety of matters arising from the dissolution of his parents' marriage in Washington State.¹ Shortly thereafter, the Oregon State Bar (Bar) notified this court regarding the accused's disbarment in Washington State and filed a recommendation for reciprocal disbarment in Oregon as well. Following the accused's response to that recommendation, the court exercised its discretion under BR 3.5(e) to refer this matter to the Bar's Disciplinary Board for the purpose of taking testimony and receiving evidence concerning: (1) whether the Washington disciplinary processes that were provided to the accused had been lacking in notice or opportunity to be heard and (2) whether the accused should now be disciplined by this court. A trial panel convened by the Disciplinary Board subsequently issued a written decision, concluding that the accused should be reciprocally disbarred in Oregon as the result of his misconduct in Washington. The accused now appeals that decision, which we review de novo . ORS 9.536(2) ; BR 10.6. For the reasons set out below, we agree with the trial panel's decision that the accused should now be disbarred in Oregon.

I. REGULATORY CONTEXT

We begin with a brief description of the rules governing reciprocal discipline matters. The Bar's Disciplinary Counsel is required to notify this court and the State Professional Responsibility Board (SPRB) upon receiving notice from another jurisdiction that an Oregon attorney has been disciplined in that jurisdiction for misconduct. BR 3.5(a). The SPRB is then required to recommend to this court an appropriate sanction to be applied in Oregon based on the discipline imposed by the other jurisdiction. Id . The accused attorney is given an opportunity to respond to the SPRB's recommendation, and the Bar is permitted to reply. BR 3.5(c), (d).

This court then must determine “whether the attorney should be disciplined in Oregon for misconduct in another jurisdiction and if so, in what manner.” BR 3.5(e). Our choice of sanction is aimed at vindicating the “judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred[.]” In re Devers , 317 Or. 261, 265, 855 P.2d 617 (1993). As a result, in reciprocal discipline cases, we have an independent obligation to determine an appropriate sanction based upon this state's disciplinary rules. In re Lopez , 350 Or. 192, 198, 252 P.3d 312 (2011).

A decision on whether to impose discipline turns on the answers to two questions. The first is, “[w]as the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard?” BR 3.5(c)(1). The second is, “[s]hould the attorney be disciplined by the court?” BR 3.5(c)(2). The court may—as it did in this case—refer the matter to the Disciplinary Board for the purpose of taking testimony on those two questions. BR 3.5(e).

The reciprocal disciplinary rule, in effect, codifies a basic principle of issue preclusion: an attorney who has had a full and fair opportunity to litigate the charges leading to discipline meted out in another jurisdiction may not relitigate the fact issues already decided. Thus, the accused lawyer may not use a reciprocal disciplinary hearing in Oregon to challenge the accuracy of particular underlying factual findings of the other jurisdiction. See In re Devers , 317 Or. at 264–65, 855 P.2d 617(determining whether the accused lawyer received constitutionally sufficient notice and opportunity to be heard in the other jurisdiction); BR 3.5(b) (the order imposing discipline in the other jurisdiction is “sufficient evidence that the attorney committed the misconduct described therein”). Instead, to the extent that the attorney seeks to avoid the factual findings of the other jurisdiction, the attorney bears the burden of proving at the hearing “that due process of law was not afforded the attorney in the other jurisdiction.” BR 3.5(f).

II. FACTS

The facts are taken from the record generated below, the parties' briefs, and the Washington Supreme Court's decision in In re Disciplinary Proceeding Against Fredric Sanai , 177 Wash.2d 743, 302 P.3d 864 (2013). The accused was admitted to the Oregon Bar in 1998 and to the Washington State Bar in 2002. He had, it appears, specifically sought admission to the Washington State Bar for the purpose of aiding his mother in matters related to her divorce in Washington from the accused's father.

In April 2002, the accused's parents had finalized their divorce, with the resulting divorce decree requiring, among other things, that the family home and a vacant lot be sold, with the proceeds to be distributed equally between the accused's mother and his father, a Seattle-based cardiologist and internal medicine specialist. The accused and his older brother—Cyrus Sanai, a California attorney—maintained, however, that their father had concealed significant assets from both their mother and the court. Consequently, the two siblings began representing their mother in proceedings designed to contest the court-ordered property sale and distribution of proceeds.

What followed were years of acrimonious litigation in which the accused and his brother filed a virtual tsunami of motions, subpoenas, petitions, appeals, and new actions in Washington's state and federal courts. Many, if not most, of those undertakings were filed solely to delay the court-ordered sale of the family property noted above or to harass the opposing parties and their lawyers. Because of the large number of those filings, the many different forums in which they were initiated, and the fact that they often overlapped chronologically, we set out those activities and their respective outcomes by loosely grouping them—as did the Washington Supreme Court—according to the various contexts in which they arose.

A. The Vacant Lot Dispute

In April 2002, shortly after the Sanais' divorce decree was finalized, the accused's mother filed a pro se appeal and notice of supersedeas without bond, effectively staying the then-pending sale of the vacant lot property. In June 2002, Washington Superior Court Judge Thibodeau ruled that that conduct had been intended solely to delay and frustrate the court's rulings. He subsequently imposed a $10,000 sanction in attorney fees against mother, disqualified the accused's brother from representing her, and ordered the posting of cash or commercial bonds to stay any future sale of the house, vacant lot, or personal property.

Later that month, the accused made his first appearance as his mother's legal counsel at a hearing in Snohomish County Superior Court. At that hearing, Judge Thibodeau ordered that the stay concerning the sale of the vacant lot be lifted by July 2002, absent the posting of a $50,000 bond. Instead of posting the required bond, however, the accused filed a lis pendens notice on the vacant lot, effectively clouding title to that property.

In response, Judge Thibodeau issued three orders in September 2002. First, he disqualified the accused from representing his mother. Second, he (1) ordered the accused's lis pendens notice stricken unless stayed by the Washington Court of Appeals; (2) barred the parties from filing any further lis pendens notices; and (3) barred any further action to delay the sale of the vacant lot. Finally, the judge imposed a $1,000 sanction against the accused's mother, because the accused had brought, on her behalf, a frivolous motion for a protective order and sanctions.

The accused then filed an appeal of those orders on mother's behalf, although mother appeared to continue as a pro se litigant. Subsequently, defying the previous order prohibiting him from further representing his mother, the accused then filed at least seven accompanying motions to either block the sale of the vacant lot or to challenge his disqualification from representation. All were denied by the Washington Court of Appeals, prompting the accused to file either a “reapplication,” a motion to reconsider, or a motion to modify in each case, all of which were similarly unavailing. Due in large part to those appeals, Judge Thibodeau imposed an additional $2,500 sanction against mother in December 2002, citing the “ ‘continuing appeals of every ruling of this court [that are] greatly prolonging the matter and costing substantial attorney fees.’ ” In re Sanai , 177 Wash.2d at 747, 302 P.3d 864 (internal citation omitted). Moreover, the judge opined, “ ‘[t]he continuing appeals border on the frivolous, and must stop for the benefit of both parties.’ ” Id.

In November 2002, as those matters were developing, a Washington Court of Appeals commissioner denied a motion filed by the accused to overturn the September 2002 order striking the previous lis pendens notices filed against the marital property. In February 2003, the Washington Court of Appeals denied the accused's motion to modify that ruling and, shortly thereafter, Judge Thibodeau released the accused's July 2002 lis pendens notice.

The accused's brother, however, filed a new lis pendens notice that same day, based on a federal action in the Western District of Washington—discussed in greater detail below—that he and the accused had initiated as plaintiffs in December 2002. When that action was transferred to ...