Conduct of Collier, In re

• Decision Date: 19 July 1983
• Docket Number: No. OSB,OSB
• Parties: In re Complaint as to the CONDUCT OF Jack E. COLLIER, Accused. 79-63, 80-42; SC 29105.
• Court: Oregon Supreme Court

Page 481

667 P.2d 481

295 Or. 320

In re Complaint as to the CONDUCT OF Jack E. COLLIER, Accused.

No. OSB 79-63, 80-42; SC 29105.

Supreme Court of Oregon.

Argued and Submitted April 6, 1983.

Decided July 19, 1983.

William M. Beers, Portland, argued the cause and filed the brief for the Oregon State Bar.

Gerald R. Pullen, Portland, argued the cause and filed the brief for the accused.

Before LENT, C.J., and PETERSON, CAMPBELL, CARSON and JONES, JJ.

PER CURIAM.

The Oregon State Bar filed a complaint against Jack E. Collier accusing him of unethical conduct in two separate causes. The first cause involves Collier's alleged failure to file a reply to a counterclaim which resulted in a default judgment being entered against his client. The second cause concerns a different matter wherein it is alleged that Collier failed to prepare and submit an order when requested to do so by a judge.

The Trial Board found that Collier was guilty of a portion of the first cause of complaint and not guilty of the second cause and the remaining portion of the first cause. It recommended that Collier be given a public reprimand and placed on probation for a period of six months on the condition that he "demonstrate a system of docket control satisfactory to the Professional Liability Fund."

The four member Disciplinary Review Board concurred in the Trial Board's findings and recommendations. We find Collier guilty only of neglecting a legal matter entrusted to him as charged in the first cause of complaint.

As to the first cause of complaint, the following facts are undisputed. Collier was admitted to the Oregon State Bar in 1964. A short time later, he became acquainted with Albert D. Dering who was in the nursery and landscape business. Collier began representing Dering and in the years that followed represented him in approximately 25 court cases and one bankruptcy.

On August 28, 1975, Collier filed a complaint in the Multnomah County Circuit Court for Dering against Westbrook Homeowners Association praying for the sum of $5,199.37 alleged to be due on a landscaping and maintenance contract. Westbrook Homeowners Association filed an answer and counterclaim. Collier, on behalf of Dering, prepared and filed a motion to strike certain portions of the counterclaim. The motion to strike was denied by Presiding Judge Olsen. The order denying the motion is dated March 1, 1976, and recites that the plaintiff failed to appear. It granted the plaintiff Dering a period of 10 days in which to file his next appearance.

On March 23, 1976, the defendant moved for an order of default on the counterclaim on the grounds that plaintiff had failed to reply. The motion for default has attached to it a certificate of mailing showing that a "true, full and exact copy thereof" had been mailed to Collier. On March 30th Judge Olsen entered a default for the want of a reply and gave the defendant judgment against the plaintiff Dering on the counterclaim for the sum of $8,783.50 with costs in the sum of $20.90.

On April 7, 1976, the defendant, apparently to cover all its bases under former ORS 18.080(1)(b), ¹ filed a further motion for a judgment on the counterclaim. The judge set the motion down for hearing on May 19, 1976, to take the necessary proof pursuant to the statute. The motion also has attached to it a certificate showing proof of mailing to Collier. May 26, 1976, Judge Olsen entered an amended order and judgment which recited "that a hearing was held on May 19, 1976, at which the Court took proof pursuant to ORS 18.080(1)(b)" and awarded the defendant a judgment against Dering on the counterclaim in the sum of $8,283.50, ² costs in the sum of $20.90 and attorney fees in the sum of $1,000. Once again the order has attached to it a certificate showing proof of mailing to Collier.

The case was set for trial on September 15, 1976, before Circuit Judge Crookham. Collier appeared for trial with a proposed reply and a motion for a continuance. He was accompanied by Dering, Dering's wife and prospective witnesses. The judge called Collier and the defendant's counsel into chambers and advised them because of the previous judgment on the counterclaim, there were no issues to try. On September 22nd Judge Crookham entered an order dismissing Dering's complaint on the ground "the [default] Order entered herein and the record of this case has obviated all of the issues before this Court."

On February 25, 1977, Dering, through another lawyer, moved to set aside the judgment "by reason of the mistake" of his previous lawyer Jack E. Collier. The affidavit of Dering and a proposed reply were attached to the motion. The motion was denied on April 12, 1977 by Judge Olsen. Thereafter, Dering sued Collier for malpractice and obtained a judgment for general damages of approximately $8,000 plus punitive damages in the sum of $5,000. ³ On January 2, 1980, Dering wrote a letter of complaint to the General Counsel of the Oregon State Bar.

The above course of events caused the Bar, on September 21, 1981, to file its complaint. The charging parts of the first cause are as follows:

"IV

"Despite notice from opposing counsel that the defendant intended to move the court for an order of default, the Accused failed to file a reply to the counterclaim on his client's behalf. The Accused also failed to appear at the hearing on the defendant's motion for a default order and the hearing on the defendant's motion for judgment on the counterclaim. The Accused was given prior notification of the date and time of each hearing.

"V

"On or about May 26, 1976, the defendant obtained a default judgment against Albert D. Dering on the counterclaim, and thereafter Dering's claim was denied by the court. The Accused did not inform his client of the default judgment or of the dismissal of Dering's claim, but advised his client that the matter was being assigned to a different judge for consideration, when in fact the Accused knew this to be untrue.

" * * *

"VII

"The aforesaid conduct of the Accused was unethical, unlawful and in violation of the standard of professional conduct established by law and by the Oregon State Bar in one or more of the following respects:

"1) Neglecting a legal matter entrusted to him. DR 6-101(A)(3).

"2) Prejudicing or damaging his client during the course of the professional relationship. DR 7-101(A)(3).

"3) Misrepresenting the status of a case to a client. DR 1-102(A)(4); ORS 9.480(4)."

Collier's answer denied paragraphs IV, V, and VII quoted above, but by way of explanation alleged that he received "a trial notice setting the case for trial almost contemporaneously with the notice" of intent to take a default and "assumed the trial notice would prevent any default." Collier also alleged that when he appeared before the trial judge, he learned for the first time of the prior default judgment.

At the hearing before the Trial Board on April 16, 1982, Dering took a position consistent with paragraph V of the complaint. He testified that on the morning the case was set for trial, after Collier had been in the judge's chambers for 15 or 20 minutes, he came out and told Dering and Dering's wife the case had been set over to a later date. He testified further that Collier never did tell him that a default had been entered.

Commencing with the opening statement before the Trial Board, Collier admitted that he was negligent in failing to file a reply and in allowing the default to be taken against Dering. ⁴ Collier's defense to the acts of negligence has been and now is that they were only "isolated acts of ordinary negligence" within the meaning of In re Robert Neil Gygi, 273 Or. 443, 450-451, 541 P.2d 1392 (1975), and "constitute only legal malpractice, rather than unethical conduct."

As to what happened on the morning of September 15, 1976, the day the case of Dering v. Westbrook Homeowners Association was set for trial, there is a sharp conflict in the testimony of Collier and Dering. Collier denied that he told Dering and his wife that the case had been set over to a later date. Collier testified he told the Derings that a default judgment had been entered and that he would have to go back before the presiding judge who had entered the judgment to have it set aside. He further explained that he intended to attempt to have the default set aside, but did not, and eventually the new lawyer hired by Dering filed the motion for that purpose.

Both the Trial Board and the Disciplinary Review Board chose to believe Collier's testimony as opposed to Dering's. The result was they found Collier guilty of neglecting a legal matter entrusted to him under DR 6-101(A)(3) and prejudicing or damaging his client during the course of the professional relationship under DR 7-101(A)(3). Both boards found Collier not guilty of misrepresenting the status of a case to a client under DR 1-102(A)(4) and ORS 9.480(4). ⁵

This court makes an independent review of the evidence. In re Robeson, 293 Or. 610, 629, 652 P.2d 336 (1982). We find that on the morning of September 15, 1976, after the meeting with the trial judge in chambers, Collier told the Derings that a default judgment had previously been entered and that he would be required to go back to the presiding judge to have it set aside. In making this finding, we have taken into consideration that the Trial Board heard and saw the witnesses. In re J. Kelly Farris, 229 Or. 209, 367 P.2d 387 (1961). The result of this finding is that Collier is not guilty of misrepresenting the status of the case under DR 1-102(A)(4) and ORS 9.480(4).

The next question is whether Collier was guilty of prejudicing or damaging his client during the course of the professional relationship under DR 7-101(A)(3). The opinion of the Disciplinary Review Board in part is as follows:

"Although [Collier] did not misrepresent the status of the case to his client, his failure to proceed with the motion to set aside the default judgment...