Conduct of Coe, In re

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Conduct of Coe, In re, 731 P.2d 1028, 302 Or. 553 (Or. 1987)
• Decision Date: 24 February 1987
• Parties: In re Complaint as to the CONDUCT OF Hal F. COE, Accused. OSB 82-132; SC S33212.

Page 1028

731 P.2d 1028

302 Or. 553

In re Complaint as to the CONDUCT OF Hal F. COE, Accused.

OSB 82-132; SC S33212.

Supreme Court of Oregon In Banc.

Submitted on Record and Briefs

Dec. 17, 1986.

Decided Jan. 21, 1987.

Reconsideration Denied Feb. 24, 1987.

[302 Or. 554-A] Mark M. Williams, Asst. Gen. Counsel, Oregon State Bar, Lake Oswego, for the Oregon State Bar.

No appearance contra.

PER CURIAM.

The Oregon State Bar (Bar) has charged the accused with violation of former DR 1-102(A)(4), ¹ DR 7-102(A)(8) and DR 2-110(A)(1) and (A)(2) of the Code of Professional Responsibility, all in connection with his conduct as personal representative and attorney in the probate of the estate of Edith Matney. In general, the complaint charges that the accused improperly paid to himself attorney and personal representative fees and left the county and abandoned his practice without concluding probate or arranging that it be done.

The Bar filed its complaint on March 13, 1986. The accused was served by publication pursuant to order of this court. On March 20, 1986, the accused filed an unverified document, in which he purported to appear specially and "not admitting jurisdiction." In that document he moved to dismiss the complaint, basing his motion on an assertion that the complaint was not filed timely "on Statute, Laches, and Bar Rules," on state and federal "due process grounds * * * in that no proper service has been effected," and that because he had chosen not to pay bar dues, "the Bar has no jurisdiction." The document further stated that if the motions were not allowed, the allegations of the complaint had no merit and were "totally denied." He affirmatively alleged that the estate had been probated and that a fee was owed to him, that the probate court had authorized the payment of fees to him, and that any subsequent acts of the probate court "were improper in that Complainant [sic (meaning himself) ] was never offered a hearing on the matter of a fee."

Before the Disciplinary Board's trial panel, the Bar moved for an order striking the document from the record for failure to verify and failure to serve properly. BR 4.3(d) requires that an accused's answer to a formal complaint must be verified and must be served on Bar counsel. Despite the fact that the document was not verified and was not served on Bar counsel, the trial panel chairperson denied the motion. It should have been allowed. ² Notwithstanding that, we note that the accused's motion does not specify any statute or Bar rule that made the filing of the complaint untimely. The allegation that the filing was untimely because of laches is a mere legal conclusion without any supporting allegations of fact. That motion should have been, and now is, denied. The motion to dismiss for want of due process under the state constitution should have been, and now is, denied because there is no due process provision in the Oregon Constitution. As for the federal constitution, there was no want of due process because there was proper service of the complaint and notice to answer under the order of this court, and the accused obviously had actual notice of the Bar's charges.

The accused's motion to dismiss on the basis that because he had not paid his bar dues the Bar had no jurisdiction over this proceeding is not so easily answered. Although he did not directly hit on it, the real question is whether this court has jurisdiction. The Bar, in disciplinary proceedings, receives complaints concerning lawyers' conduct, investigates those complaints and, where warranted, initiates charges of misconduct. Those charges are filed in this court, and the proceedings are conducted by the Disciplinary Board as an arm of this court. ORS 9.534.

The record shows that at least as early as July 1982, complaint was made to the Bar about alleged misconduct of the accused in the probate of the Matney estate. This complaint sparked countercharges by the accused that an attorney for the successor personal representative and a circuit court judge of the probate court were guilty of misconduct with respect to the probate. Correspondence between the Bar and the accused continued over the charges and countercharges. The letters from the Bar to the accused made it clear that if he were not to make some valid explanation that would avoid the charges, the Bar would institute formal charges. Bar counsel was appointed prior to October 11, 1983, to prepare and file formal charges. The Bar attempted to notify the accused of this, but he could not be notified at the various addresses he gave to the Bar at that time as his mailing addresses. We infer that he was deliberately seeking to avoid receipt of mail from the Bar.

While he was avoiding delivery of letters and notices from the Bar, the accused failed to pay his dues and for this failure was suspended under ORS 9.200, effective July 16, 1985. This suspension was still in effect when, in March 1986, the Bar's complaint, making formal charges, was filed in this court. This suspension is still in effect. The authority to suspend is found in ORS 9.200, which provides:

"(1) Any member in default in payment of membership fees established under ORS 9.191(1) for a period of 90 days, or any person in default in payment of membership fees established under ORS 9.191(2) for a period of 30 days after admission or as otherwise provided by the board, or any member in default in payment of assessed contributions to a professional liability fund under ORS 9.080(2) for a period of 30 days, shall, after 60 days' written notice of the delinquency, be suspended from membership in the bar. The notice of delinquency shall be sent by the executive director, by registered or certified mail, to the member in default at the last-known post-office address of the member. Failure to pay the fees or contributions within 60 days after the date of the deposit of the notice in the post office shall automatically suspend the delinquent member. The names of all members suspended from membership for nonpayment of fees or contributions shall be certified by the executive director to the State Court Administrator and to each of the judges of the Court of Appeals, circuit, tax and district courts of the state.

"(2) An active member delinquent in the payment of such fees or contributions shall not be entitled to vote.

"(3) A member suspended for delinquency in payment of such fees or contributions shall be reinstated only on compliance with the rules of the Supreme Court and the rules of procedure and payment of all required fees or contributions."

Insofar as statutory authority is concerned, this court has power to disbar, suspend or reprimand "members of the bar" under ORS 9.527, and the procedure for hearing formal charges against "members of the bar" is provided in ORS 9.534 to 9.536. Because the accused was suspended from "membership in the bar," did this court have any power to entertain charges when filed during the period of suspension, and does this court have any power to disbar, suspend or reprimand the accused in these proceedings? We conclude that we did and that we do.

Ever since the original code compiled by Deady, the statutes of this state have provided substantially as now does ORS 9.260:

"An attorney may, at any time, file in the office of the executive director [of the Bar] a written resignation. After filing a resignation, the attorney is not entitled to the rights nor subject to the disabilities or prohibitions incident to that relation, except that the attorney is still subject to the power of the court in respect to matters arising prior to the resignation of the attorney." (Emphasis added.)

While noticing the existence of this statute (then Hill's Annotated Laws, § 1045), this court in Ex parte Thompson, 32 Or. 499, 501-02, 52 Pac. 570 (1898), did not exactly apply it but reached the same result, saying:

"An attorney is permitted, at any time, to file in the office of the county clerk of the county in which he resides a written resignation, upon receiving which it is made the duty of such clerk immediately to forward a certified copy thereof to the clerk of this court, who shall file the same in his office. After filing such resignation, the attorney is not entitled to the rights nor subject to the disabilities or prohibitions incident to that relation, except that he is still subject to the power of the court in respect to matters arising while he was an attorney: Hill's Ann. Laws, §§ 1045, 1046. The courts of England, at the beginning of the nineteenth century, adopted a rule which provided that the name of an attorney would not be stricken from the rolls at his own request without an affidavit that he did not apply therefor under an apprehension that charges would be preferred against him: Ex parte Owen, 6 Ves. 11; Ex parte Foley, 8 Ves. 33. In New York it was held that, notwithstanding an attorney may have quit the practice of his profession, he was, nevertheless, amenable to the orders and process of the court as long as his name remained upon the roll of attorneys: Scott v. Van Alstyne, 9 Johns. 216.

"Undoubtedly, section 1045, supra, was enacted in view of these rules, from which it would appear that, while an attorney may voluntarily resign his office, and thus relinquish the rights conferred by his admission to the bar, and escape the disabilities incident thereto, Thompson's resignation, not having been made with the consent or approval of this court, cannot have the effect of striking his name from the roll of attorneys, and, as long as his name remains thereon, he must be subject to its summary jurisdiction, and amenable to its orders and judgments, in so far as they relate to acts committed by him prior to his resignation. The accused, having been convicted of a felony while he sustained the relation of an attorney, ought not to be permitted, by his voluntary act, to have his name stricken from the roll of attorneys...