Conduct of Chambers, In re

• Decision Date: 16 March 1982
• Citation: 292 Or. 670,642 P.2d 286
• Parties: In re Complaint as to the CONDUCT OF Donald W. CHAMBERS, Accused. OSB 79-62; SC 28183. *
• Court: Oregon Supreme Court

Page 286

642 P.2d 286

292 Or. 670

In re Complaint as to the CONDUCT OF Donald W. CHAMBERS, Accused.

OSB 79-62; SC 28183.

Supreme Court of Oregon, In Banc ^*.

Submitted on the Record Jan. 14, 1982.

Decided March 16, 1982.

Eric C. Larson, Gresham, filed a Petition for Adoption of the Decision and Recommendation of the Review Board.

No appearance contra.

PER CURIAM.

The Oregon State Bar filed a complaint against Donald W. Chambers, a member thereof, accusing him of unethical conduct in three separate causes:

(1) In negligently representing Lisa L. Hartel with regard to her claims for personal injuries and property damages resulting from an automobile accident in contravention of the Code of Professional Responsibility, particularly DR 6-101(A)(3); DR 7-101 and DR 7-102(A)(5).

(2) In not reasonably and effectively representing Charles Whillhite in a criminal case. DR 6-101(A)(1), (2), (3), and DR 7-101(A)(3).

(3) In contacting Nedra B. Thatcher, the potential adverse party in an automobile collision, and identifying himself as the insurance agent for his client, Delbert Marshall, in contravention of DR 7-102(A)(5).

Chambers did not answer the complaint and allowed the Oregon State Bar to enter a default against him. Chambers did not appear either in person or by counsel at the hearing before the Trial Board. Documentary evidence was received and one witness testified at the hearing before the Trial Board. Findings of fact were entered and Chambers was found guilty of the third cause and guilty of a part of the specifications set out in each of the first and second causes.

The Trial Board recommended that Chambers be suspended from the practice of law in this state for a period of two years. The Disciplinary Review Board concurred with the Trial Board in its findings of fact, conclusion, and recommendation.

It is this court's obligation to make an independent review of the evidence. The accused is entitled to the presumption that he is innocent of the charges made against him. The charges must be proved by clear and convincing evidence. In re Galton, 289 Or. 565, 578, 615 P.2d 317 (1980). "Clear and convincing evidence means that the truth of the facts asserted is highly probable." Supove et al. v. Densmoor et ux., 225 Or. 365-372, 358 P.2d 510 (1961).

The first cause of complaint arises out of Chambers' representation of Lisa L. Hartel in connection with an automobile collision. On May 4, 1973, the Hartel automobile collided with an automobile driven by Ella G. Drennen at Brazee and Ninth Streets in the city of Portland. Hartel suffered personal injuries and damage to her vehicle and within one week retained Chambers to represent her. Chambers requested and received a medical report describing Hartel's injuries.

Chambers negotiated with Drennen's insurance company and received offers of settlement, but did not inform Hartel or consult with her about them. On November 9, 1974, Hartel verified a complaint prepared by Chambers. The complaint was not filed until May 2, 1975. The summons Chambers prepared was defective on its face because it failed to set a return time and did not contain the address and telephone number of the attorney. The summons was not returned for filing within the 60 days required by former ORS 15.060.

Drennen's attorney filed a motion to quash the service of summons but did not call it up for argument in order to allow Chambers an opportunity to negotiate a settlement directly with the insurance company. Eventually the motion to quash came before the presiding judge of Multnomah County who conditionally granted Chambers' motion to amend the summons by interlineation to cure the defects provided the original summons was returned to the court within one week. Chambers failed to comply.

Later when the case was back before the presiding judge Chambers represented to the court that the case had been settled and it was dismissed under a 60 day dismissal order, effective April 12, 1976.

In June 1976, after many unsuccessful attempts to contact Chambers, Hartel contacted another attorney to find out the status of her case. ¹ In September, 1976, after being substituted as attorneys of record, Hartel's new lawyers moved to set aside the order of dismissal and Drennen's attorney filed a supplemental motion to quash the service of summons. The court allowed both motions. The net effect was to cut off Hartel's cause of action because the statute of limitations had expired.

In April, 1977, Hartel through her new attorneys filed a malpractice action against Chambers alleging that he had been negligent and reckless in his representation of her. Chambers filed an answer generally denying the complaint, but failed to appear for the trial. The trial court on December 15, 1977 entered a judgment for Hartel and against Chambers for $7,000 general damages and $5,000 punitive damages. ² As of the middle of February, 1980 Hartel had been unable to collect any money on her judgment.

The charging part of the first cause of complaint in this case is as follows:

"The accused was negligent ³ in the representation of LISA L. HARTEL in one or more of the following particulars, to-wit:

"(1) He failed to properly prepare the Summons in a lawsuit filed on behalf of LISA L. HARTEL, and further, he failed to effectuate service of process within the time limitations set by statute. He further failed to abide by the conditions imposed by the Circuit Court of the State of Oregon for the County of Multnomah regarding the return of service of said Summons;

"(2) He failed to communicate with his client;

"(3) He failed to proceed effectively prior to the time limit set by the Statute of Limitations with reference to his client's cause of action.

"Said conduct * * * was * * * in direct contravention of * * * DR 6-101(A) (3); DR 7-101 and DR 7-102(A)(5)."

The portions of the Disciplinary Rules which the Oregon State Bar apparently relied upon as to the first cause of action are as follows:

"DR 6-101 Failing to Act Competently.

"(A) A lawyer shall not:

" * * *

"(3) Neglect a legal matter entrusted to him.

"DR 7-101 Representing a Client Zealously.

"(A) A lawyer shall not intentionally:

"(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules * * *.

"(2) Fail to carry out a contract of employment entered into with a client for professional services, * * *.

"(3) Prejudice or damage his client during the course of the professional relationship, * * *.

"DR 7-102 Representing a Client within Bounds of the Law.

"(A) In his representation of a client, a lawyer shall not:

"(5) Knowingly make a false statement of law or fact."

The Trial Board found Chambers guilty of negligence in failing: (1) to properly prepare the summons in the case filed on behalf of Hartel, (2) to abide by the conditions imposed by the trial court regarding the return of service of the summons, and (3) to communicate with his client.

We agree with the Trial Board and find Chambers in direct violation of DR 6-101(A)(3) in that he neglected a legal matter entrusted to him. As to the first cause of complaint Chambers is not in violation of DR 7-101 or DR 7-102(A)(5) because those disciplinary rules concern "intentional" and "knowing" acts and only "negligent" acts are alleged in that cause.

The Trial Board found Chambers not guilty because of failure to prove the allegations that he negligently failed to: (1) effectuate service of process within the time limitations set by statute, and (2) proceed effectively prior to the time limit set by the statute of limitations with reference to his client's cause of action. We agree with the Trial Board, although maybe for a different reason. The Trial Board did not expand upon the reason for its finding. Because this matter is uncontested it is before us without the benefit of argument or briefs.

The only proof in this case to support the allegations that Chambers failed to "effectuate service of process" or "proceed effectively prior to the time limit set by the Statute of Limitations" is the same evidence used to prove the allegations that Chambers failed "to properly prepare the summons" and "to abide by the conditions imposed by the Circuit Court." It seems to us that the allegations of failure to "effectuate service" and failure to "proceed effectively" are redundant when viewed with the other allegations in the cause. The summons was actually served before the expiration of the statute of limitations. Chambers' negligence was that he did not properly prepare the summons or amend the return. The fact that the summons was quashed and could not be served again because of the statute of limitations is the "result" of the negligence, and not the act of negligence. We agree with the Trial Board that Chambers is not guilty of these allegations.

In connection with the first cause of complaint the Trial Board also found that Chambers was guilty of:

"Misrepresentation to the Court that the lawsuit had been settled between the parties when it, in fact, had not been, resulting in the case being dismissed by the Court."

The proof supports this finding, but the pleadings do not. The complaint contains no allegation that would put Chambers on notice that he was charged with this misrepresentation.

The second cause of complaint arises out of Chambers' representation of Charles Willhite in a criminal case. Willhite was charged with a crime as a result of a confrontation in 1977 between the Brothers Free and the Outsiders motorcycle clubs at a swap meet at the Memorial Coliseum in Portland. The record before us in this regard is scant-we have only 14 selected pages out of the 500 plus page transcript in the criminal case. We have the transcript of a subsequent post-conviction case entitled Charles A. Willhite, Petitioner v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary together with the trial judge's decision and the judgment...