Conduct of Jones, In re

• Decision Date: 29 August 1989
• Citation: 779 P.2d 1016,308 Or. 306
• Parties: In re Complaint as to the CONDUCT OF William H. JONES. OSB 87-43; SC 24730.
• Court: Oregon Supreme Court

Page 1016

779 P.2d 1016

308 Or. 306

In re Complaint as to the CONDUCT OF William H. JONES.

OSB 87-43; SC 24730.

Supreme Court of Oregon In Banc.

Submitted on Record and Briefs May 1, 1989.

Decided Aug. 29, 1989.

Susan K. Roedl, Lake Oswego, and Stephen R. Blixseth, Eugene, filed the brief and the reply brief for the Oregon State Bar.

William H. Jones, Roseburg, pro se.

[308 Or. 308] PER CURIAM.

In this lawyer disciplinary proceeding, the accused agreed to let Delores McElmurry, a nonlawyer, use his name as lawyer on papers she filed in her dissolution processing operation. The issues raised by the bar's appeal from the trial panel's decision are whether the accused acted with a culpable mental state and, if so, whether the previously imposed sanction should be increased.

The trial panel found that in the course of his participation with McElmurry in her unauthorized practice of law, the accused violated several disciplinary rules (DRs). It recommended two years unsupervised probation conditioned on the accused's attendance at 12 hours of legal ethics continuing education courses. The trial panel also recommended a 45-day suspension from practice if the accused fails to complete the ethical coursework, but suspended execution of that suspension.

The trial panel found accused's conduct was "negligent rather than culpable." The bar contends that, under the Standards for Imposing Lawyer Sanctions approved by the American Bar Association in 1986 (ABA Standards), accused violated the DRs with a greater culpable mental state. ABA Standards 3.0 at 7. Because we find that the accused acted with conscious awareness that the nature of his conduct violated the rules, and because the conduct facilitated McElmurry's unlawful activities that harmed many people who could reasonably think that the accused was protecting their legal interests, we impose a greater sanction.

We adopt the trial panel's findings that:

"To assist McElmurry, the accused provided pleading paper and a letterhead stamp for her to use in processing such proceedings. McElmurry and the accused together prepared a newspaper ad using the accused's title as an attorney, and his address and phone number for legal services. The advertisement apparently listed McElmurry separately from the accused, with her phone number, soliciting domestic relation services.[ ¹ * * * The accused introduced McElmurry to a county clerk as his agent for pickup and delivery of the accused's documents with the Douglas County Clerk. The accused directed a letter to a notarial employee of the County Surveyor's office authorizing her to notarize the accused's signature to documents purportedly signed by him, not signed in the presence of the notary." ²

According to the accused's own deposition, he knew that McElmurry had previously been contacted by the Oregon State Bar regarding similar activities. The accused admitted that he was aware of the warnings McElmurry received from the bar. The warnings advised her to discontinue her unauthorized practice of law. Accused testified that he reasoned McElmurry must have been giving legal advice, beyond her competence to give; otherwise she would not have been contacted by the bar to stop the practice. Thus, he thought, if he instructed her to bring any legal question to him, the bar's concerns would be satisfied. But he took no steps to enforce his instruction or to test her ability to determine when legal help was needed. We find also that at no time were dissolution clients required to meet or speak with the accused. Thus, preparation and filing of their dissolutions, petitions, motions, and decrees occurred without benefit of review by the accused but they bore his name as attorney.

To assist us in determining the sanction, we refer to the ABA Standards. See In re Willer, 303 Or. 241, 250, 735 P.2d 594 (1987). The ABA Standards call for a consideration of (1) the ethical duty violated, (2) the lawyer's mental state, (3) the extent of the injury, actual or potential, caused by the lawyer's misconduct, and (4) the existence of aggravating or mitigating factors. ABA Standards 3.0. In this case we consider injury to others first, to avoid duplicate factual statements.

INJURY TO CLIENTS OR OTHERS

The trial panel stated that "there is no question but what the public generally, and clients of McElmurry in particular, were deceived into believing that their personal domestic relations proceedings were being handled by, or under the direction of the accused" and that "the injuries which resulted by permitting his name and status as a lawyer to be used by a non-lawyer resulted in public deception and were the vehicle by which McElmurry committed fraud upon the court system." We adopt the trial panel's findings just stated and further find that no fewer than 16 people were bilked of at least $3,471.50 by McElmurry through the dissolution operation which the accused helped set in motion, albeit with unintentional results. In a number of cases, clients thought their marriages were lawfully dissolved when in fact their papers had not even been filed.

ETHICAL DUTIES VIOLATED

The trial panel found accused violated DR 1-102(A)(1), DR 1-102(A)(4), as well as DR 3-101(A) of the Code of Professional Responsibility. We so find as well.

DR 1-102(A)(1) and (4) provide:

"It is professional misconduct for a lawyer to:

"(1) Violate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another;

" * * * * *

"(4) Engage in conduct that is prejudicial to the administration of justice[.]"

DR 3-101(A) states:

"A lawyer shall not aid a nonlawyer in the unlawful practice of law."

The accused knowingly assisted McElmurry in ways which contributed to her violating the prohibition against the unauthorized practice of law. His directive to McElmurry to refrain from dealing with legal questions was neither enforced by the accused nor supervised with the diligence necessary for such enforcement. By analogy, the accused knowingly loaded and cocked a pistol which he handed to McElmurry, knowing she lacked the training to fire it safely, when he enabled her to perform dissolution services using his name. He knew she was a person who had probably fired a similar pistol under unsafe conditions on previous occasions since the bar had, as he thought, found her to be giving legal advice which she lacked the training to give.

Accused was not candid. Permitting pleadings to bear his name, although he took no part in their preparation, misled both the court and McElmurry's clients. Such conduct was prejudicial to the administration of justice. Moreover, it was a deception practiced both on the court and the clients.

The accused's unwitting choice of an untrustworthy associate does not excuse his knowing participation in these violative activities. It may, however, bear upon the degree to which he could foresee the potentially harmful results flowing from his conduct.

CULPABLE MENTAL STATE

Although the trial panel noted that the accused had suffered from alcoholism for a portion of his professional life, it entered no specific factual findings to support its conclusion that the accused was "negligent rather than [more] culpable". No one testified that the accused used alcohol during the relevant time period. There was no finding of memory lapses or impairment of cognitive function. Nor was any testimony offered showing the effect of chemical abuse on the accused's judgment or intent during that period in order to potentially negate the mental element. See In re Eads, 303 Or. 111, 122-23, 734 P.2d 340 (1987).

We find that accused's participation in the relatively explicit arrangements between McElmurry and himself was a knowing act of impropriety and misconduct in violation of the bar's disciplinary rules. See In re Chandler, 306 Or. 422, 429, 760 P.2d 243 (1988). This is not to say that the accused knew McElmurry was...