Conduct of Rudie, In re, OSB

• Decision Date: 19 April 1983
• Docket Number: No. OSB,OSB
• Parties: In re Complaint as to the CONDUCT OF Peter S. RUDIE, Accused. 81-42, SC 28951.
• Court: Oregon Supreme Court

Page 321

662 P.2d 321

294 Or. 740

In re Complaint as to the CONDUCT OF Peter S. RUDIE, Accused.

No. OSB 81-42, SC 28951.

Supreme Court of Oregon.

Argued and Submitted Feb. 10, 1983.

Decided April 19, 1983.

George S. Frum of Frum & Bledsoe, Salem, argued the cause and filed a brief for the accused.

Jean W. Christensen, Salem, argued the cause and filed a brief for the Oregon State Bar.

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

PER CURIAM.

The primary issue is the appropriate sanction to be imposed for conduct of the accused that was in violation of certain disciplinary rules contained in the Code of Professional Conduct.

The following facts are taken from the accused's brief in this court:

"The accused at the time of trial of the Hoekstre matter was 29 years of age, had been admitted to practice law in the State of Oregon in 1975 and engaged in the practice of law in Salem, Oregon. After undertaking to represent Bert W. Harrison and Golden B Products, Inc. in a lawsuit filed against them by Frank D. Hoekstre and Shirley E. Hoekstre, the accused conducted his representation of said clients without preparation adequate under the circumstances. He failed to contact or consult with his clients, did not keep his clients informed, and he failed to adequately discuss the case with his clients or examine their records prior to the night before the trial was to begin.[ ¹ After the trial of the case and while the case was under advisement, the accused did not respond to phone calls and correspondence from the trial judge. Approximately eleven months after the trial the court entered a judgment against his clients in the amount of $65,000.00 plus $10,000.00 attorneys fees and costs. At no time in the interim did the accused discuss the case with his clients.

"On the last day of the trial his clients advised the accused that they wished to appeal if the judgment were adverse. After the judgment was entered, the accused failed to notify them of that fact, failed to advise them concerning appellate procedures, failed to advise them of the need for an undertaking, and failed to perfect the appeal on their behalf."

The Oregon State Bar charged that such conduct violated the precepts of DR 6-101(A)(2) and (3), which provide:

"(A) A lawyer shall not:

" * * *

"(2) Handle a legal matter without preparation adequate in the circumstances.

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

As did the Trial Board and the Disciplinary Review Board, we find the accused violated those disciplinary rules. ²

The Bar further charged the accused violated DR 7-101(A)(2), which provides:

"(A) A lawyer shall not intentionally:

" * * *

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

We find it to be clear that there was a contract to perform professional services by way of undertaking an appeal from a judgment that might be adverse to these clients. There is nothing in the stated facts to indicate that the accused failed to carry out the contract because of excusable neglect or even mere negligence. His failure was intentional in the same sense as is that of an employee who, without good cause, does not come to work. We conclude that, within the meaning of that disciplinary rule, he intentionally failed to carry out the contract of employment.

The Bar's complaint further charged the accused with violation of DR 7-101(A)(3), which provides that a lawyer shall not "intentionally: [p]rejudice or damage his client during the course of the professional relationship."

The Trial Board and the Disciplinary Review Board found that the accused violated DR 7-101(A)(3), the Trial Board putting it as follows:

"The accused's neglect and failure to prepare and his failure to present the claims of his clients and to perfect their appeal prejudiced and damaged his clients and violated [the Rule]."

We agree that the omissions of the accused prejudiced and damaged his clients, but that is not enough to establish a violation of the disciplinary rule.

The rule prohibits a lawyer from "intentionally" prejudicing or damaging his client. In DR 7-101(A) the adverb "intentionally" is used both to modify the verb "Fail" in subsection (2) and to modify the verbs "prejudice or damage" in subsection (3). As noted above, we have found that he "intentionally" failed to carry out his contract of employment as the adverb is used with respect to the kind of unprofessional conduct with which subsection (2) deals. With respect to the charge of violation of subsection (3), it might be argued that since he "intentionally" failed to carry out his contract to perfect an appeal, he must have intended the consequences that were sure to follow, namely, the loss of the opportunity of his clients to correct error, if any, in the trial court. On the other hand, it is arguable that in the context of the conduct meant to be proscribed by subsection (3), the adverb is used to denote the purpose or motive of the lawyer.

The possible distinction was not argued to us by either the Oregon State Bar or the accused. We are reluctant to lay down a rule of law as to the meaning of the adverb as used with respect to DR 7-101(A)(3) in the absence of adversarial briefing or even because a particular accused does not raise the issue. We shall assume, for the purpose of this decision, that a lawyer is not guilty of a violation of subsection (3) unless his purpose is to prejudice or damage his client. There is no evidence of that purpose in this case, and we therefore find the accused not guilty of that charge.

In a fourth cause of complaint the Bar charged that in the aggregate the acts of unprofessional conduct charged in the first three causes were such as to bar the accused from admission to practice if he were now applying for admission. See, ORS 9.480(1):

"The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that:

"(1) The member has committed an act or carried on a course of conduct of such nature that, if the member were applying for admission to the bar, the application should be denied."

The Trial Board and the Disciplinary Review Board found the accused guilty of this charge. Whether they would have done so had they made the same finding we have with respect to the third cause of complaint is problematical. At any rate, the charges in this matter and the record all concern a course of conduct with respect to but one legal matter and, in the circumstances, we find the charge in the fourth cause of complaint not to have been established. ³

Before turning to decision as to the appropriate sanction, we must address an aspect of this proceeding that does not appear from the facts stated by the accused in his brief. The record discloses that the accused made no answer to the four causes set forth in the complaint of the Oregon State Bar and that he did not appear at the time and place set for trial of the charges before the Trial Board. We infer from the record that perhaps the accused did not have official notice of the time and place of trial, but that, if so, it is because of his failure to keep the Oregon State Bar advised as to his business and personal addresses, or either thereof. Beyond that, effort was made to reach him with such notice by telephone, but such efforts directed to his Salem telephone numbers were fruitless because of disconnections. In any event, lack of adequate notice has not been asserted by the accused, and upon oral argument in this court his counsel acknowledged that before the Trial Board a fair hearing took place.

The Trial Board, other than noting the failure of the accused to appear, either in person or by counsel, appeared not to have considered the failure of the defendant to respond to the charges made in this proceeding. The Trial Board recommended to this court that the accused be suspended from practice for one year and thereafter until he might show to the Bar and this court that he might be fit in all respects to be allowed to resume practice.

The Disciplinary Review Board's opinion was as follows:

"The Disciplinary Review Board having reviewed the transcript and exhibits received from the Trial Board in the above matter concurs with the findings of fact by the Trial Board and the recommendation of the Trial Board that the accused be suspended for one year. While a one year suspension might be rather severe for the types of complaints made against the accused we are mindful of the fact that similar complaints have been made against the accused previously. On those prior occasions, the accused justified his conduct on certain personal factors. The fact he failed to appear in this proceeding indicates that the problems are of a more serious nature."

The reference to the accused's previous conduct concerned that described in In re Rudie, 290 Or. 471, 484, 622 P.2d 1098, 1106 (1981). There we found the accused guilty of neglecting a legal matter and publicly reprimanded him.

The accused in this court maintained that the Disciplinary Review Board should not have been concerned with that prior misconduct. In this respect he is mistaken. See, In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980). This court regards a record of previous unprofessional conduct of a similar nature to be a matter of importance.

The accused in this court maintained further that the Disciplinary Review Board drew an unwarranted inference that the accused's failure...