Conduct of White, In re

• Decision Date: 24 September 1991
• Citation: 815 P.2d 1257,311 Or. 573
• Parties: In Re Complaint as to the CONDUCT OF Craig D. WHITE. OSB 86-25, 87-34/SC S37007.
• Court: Oregon Supreme Court

Page 1257

815 P.2d 1257

311 Or. 573

In Re Complaint as to the CONDUCT OF Craig D. WHITE.

OSB 86-25, 87-34/SC S37007.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Oct. 10, 1990.

Decided July 25, 1991.

Reconsideration Denied Sept. 24, 1991.

Christopher Bishop, Portland, argued the cause, for the accused. With him on the briefs, was Craig D. White, pro se.

Susan K. Roedl, Asst. Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief, on behalf of the Or. State Bar.

PER CURIAM.

The Oregon State Bar charged the accused with violations of several different Disciplinary Rules. The trial panel found him guilty of 11 violations and decided that he should be disbarred. The accused seeks review. We review the record de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing ethical misconduct by clear and convincing evidence. BR 5.2.

The Bar alleges that the accused violated the following standards of professional conduct:

"DR 1-102 Misconduct; Responsibility for Acts of Others.

"(A) It is professional misconduct for a lawyer to:

" * * * * *

"(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness to practice law;

" * * * * *

"(4) Engage in conduct that is prejudicial to the administration of justice." ¹

"DR 2-109 Acceptance of Employment.

"(A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to:

"(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for the person, merely for the purpose of harassing or maliciously injuring any other person.

"(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law."

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

"(A) In the lawyer's representation of a client, a lawyer shall not:

"(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the lawyer's client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

"(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

" * * * * *

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

We conclude that the accused filed unwarranted actions and advanced unwarranted claims merely to harass, in violation of DR 7-102(A)(1) and (2); that he accepted employment knowing that his client intended to bring actions merely to harass and to advance unwarranted claims, in violation of DR 2-109(A)(1) and (2); that the conduct described above--in addition to failures to appear for hearings, failure to follow an order concerning venue, and failures to prosecute claims--prejudiced the administration of justice, in violation of DR 1-102(A)(4); that the accused knowingly made a false statement to a court, in violation of DR 7-102(A)(5); and that the accused committed a criminal act that reflected adversely on his fitness to practice law, in violation of DR 1-102(A)(2). We suspend the accused from the practice of law for three years.

I. PETTIBON LITIGATION

Most of the alleged violations arose out of the accused's conduct during litigation over the dissolution of a chiropractic partnership. That litigation encompassed 22 cases. The accused represented Pettibon, one of the chiropractors. For ease of reference, we will refer to those cases collectively as the "Pettibon litigation." We also have given each case a case designation (for example, "Beeson 1 " or "Pettibon 1 ") using the plaintiff's name and the chronological order of filing by that plaintiff. The Appendix contains a list of the cases and pertinent information about them. When we refer in this opinion to a specific case, we will use the case designation found in the Appendix.

With respect to the Pettibon litigation, the Bar alleges that the accused accepted employment on behalf of a client, Pettibon, who intended to harass the opposing parties with litigation and that the accused filed unwarranted claims with the intent to harass the opposing parties. The Bar also contends that the accused failed to appear at hearings, failed to comply with an order to change venue, and failed to prosecute cases during the Pettibon litigation. The Bar further contends that the behavior of the accused prejudiced the administration of justice.

A. Findings and Discussion

1. Beginning of Litigation

The accused was admitted to practice law in Oregon in 1981. He is a sole practitioner.

Pettibon and Beeson, two chiropractors, entered into several business partnerships. Their first venture was to establish Willamette View Chiropractic Clinic in Portland. Pettibon kept the financial records and shared the profits with Beeson. Pettibon and Beeson were also business partners in clinics in Hawaii and Oregon City and had similar arrangements with respect to keeping records and sharing profits. In addition In April 1983, Lord, Beeson, and WVA filed an action against Pettibon, the first case in the Pettibon litigation (Beeson 1 ). Lord, Beeson, and WVA sought injunctive relief and an accounting from Pettibon of corporate assets covering his time as president of WVA. In June 1983, Lord and Beeson filed a second action against Pettibon, seeking to have Lord declared a one-third owner of the land in Oregon City (Beeson 2 ). Pettibon denied that Lord had any ownership interest. Ratoza was the lawyer who represented Beeson in both cases.

Pettibon and Beeson engaged in a real estate development venture with Lord, a contractor, on undeveloped land in Oregon City. Pettibon, Beeson, and Lord also leased real property in Aloha and formed a corporation, Willamette View Associates (WVA), to manage the construction of an office building on the property. For a short time, Pettibon served as president of WVA.

2. Intent to File Claims Merely to Harass

On July 7, 1983, the accused called Ratoza to inform him that, on behalf of Pettibon, the accused had filed an action against Beeson in Clackamas County (Pettibon 1 ). Ratoza asked the accused why he was filing a separate action rather than joining it with the first case, Beeson 1, which then was pending in Multnomah County. According to Ratoza, the accused replied that Pettibon intended "to sue Dr. Beeson in as many different courts for as many different claims as they could think up." The accused told Ratoza that Beeson had hurt Pettibon and that Pettibon was going to get even by causing Beeson "as much grief and expense * * * as was humanly possible." The accused also intimated that Pettibon enjoyed litigation. The accused denied that he made those statements to Ratoza.

In addition to offering Ratoza's testimony at the disciplinary hearing, the Bar introduced Ratoza's contemporaneous handwritten notes and his affidavit about the conversation, which was prepared about seven months after the conversation took place. After hearing the testimony of both Ratoza and the accused, the trial panel found that Ratoza was credible. The accused admits that Ratoza was a credible witness but asserts that Ratoza was impeached, because he admitted that his notes were not a verbatim account of the accused's statements. Ratoza testified, however, that the notes accurately conveyed the substance of the accused's statements.

We find that the accused did not testify truthfully in this proceeding when he denied making the statements to Ratoza. We find in accordance with Ratoza's testimony. In July of 1983, the accused intended to bring legal actions on Pettibon's behalf merely for the purpose of harassing Beeson.

After the conversation with Ratoza, in a period of five years, the accused filed 14 more cases on Pettibon's behalf--in Clackamas, Multnomah, and Washington Counties; in Clark County, Washington; in the United States District Court in Portland, Oregon; and in federal bankruptcy court. Beeson was an opposing party in all but one of those cases. We turn to an examination of several specific actions.

3. Duplicate Claims Concerning Note

In the first case (Beeson 1 ), the accused filed a counterclaim on behalf of Pettibon against Lord, Beeson, and WVA, seeking to collect on a note for $25,750. The jury determined that the note was not a debt of either the corporation or the partnership, because it had been a capital contribution, rather than a loan. Yet, less than one year later, the accused, on Pettibon's behalf, sued the same parties on the same note in a different county (Pettibon 13 ). The complaint in that action alleged that the note was due, despite the earlier jury determination that the note actually was a capital contribution. The trial court dismissed the claim in Pettibon 13 on the ground that it was barred by principles of claim preclusion.

The accused argues that, in Pettibon 13, his client was not pursuing the same claim 4. Bankruptcy Proceedings

                as in Beeson 1.   He says that he simply pleaded the note, because he was seeking a partnership accounting and wanted it included as a capital contribution.  The complaint alleges, however, that Pettibon loaned the money to defendants and was entitled to repayment.  The claim concerning the note in Pettibon 13 was unwarranted in law and in fact, and the accused knew it.  The accused filed that claim merely to harass Beeson and Lord
                

The accused, on Pettibon's behalf, sought to have WVA involuntarily declared bankrupt (Pettibon 3 ) a few days before the scheduled trial on the accounting of assets (Beeson 1 ) and five days after the circuit court had denied the accused's motion for a postponement in Beeson 1. After filing the involuntary bankruptcy petition,...