Discipline of Devers, In re
| Decision Date | 29 July 1993 |
| Parties | In re the Matter of Reciprocal DISCIPLINE OF John J. DEVERS, Accused. OSB 89445; SC S39997. |
| Court | Oregon Supreme Court |
John J. Devers, Portland, filed an answer in pro. per.
Susan Roedl Cournoyer, Asst. Disciplinary Counsel, OR State Bar, Lake Oswego, filed a reply brief.
This is a lawyer discipline proceeding involving "reciprocal discipline" under Bar Rule of Procedure (BR) 3.5. The accused is a lawyer who was licensed to practice law in both Oregon and Michigan during the years relevant to this proceeding. He presently lives in Oregon. In 1992, the accused was suspended from the practice of law in Michigan for four months for unethical conduct in three matters, which we discuss more fully below. Pursuant to BR 3.5, the State Professional Responsibility Board has recommended that the accused be suspended from the practice of law in Oregon for his unethical conduct as a lawyer in Michigan. We suspend the accused from the practice of law for six months.
When the Oregon State Bar files a decision of another jurisdiction with this court, 1 accompanied by a recommendation for discipline "based on the discipline in the [other] jurisdiction," BR 3.5(a), the accused lawyer may file an answer. BR 3.5(c) provides that the answer may "discuss[ ] the following issues:
The accused filed an answer discussing both of those points. Accordingly, we will consider each question.
We begin with the procedural question. The Michigan proceedings began with the filing of formal complaints. Each complaint described the alleged misconduct in detail, and each complaint was served on the accused by mail. The applicable procedural rules gave the accused 21 days within which to answer and provided for a hearing. The accused failed to respond to all but one of the complaints and failed to appear at the scheduled hearings, of which he had notice. The hearings proceeded in his absence.
The Michigan trial panels concluded that the accused had violated several sections of the Michigan Rules of Professional Conduct. The trial panels noted that the accused had a prior disciplinary history consisting of an admonishment in 1979 and orders of reprimand in 1987 and 1988. The trial panels also found that the accused exhibited an "evidently blatant disregard for the disciplinary system." After considering those factors, Michigan imposed a 121-day suspension for one matter and a 90-day suspension for the other two matters together. The suspensions ran concurrently, effective December 9, 1992.
The accused concedes that he received notice of the charged misconduct when he received the formal complaints and that he received notice of the scheduled hearings. He also agrees that the Michigan rules, in the abstract, provided him with an opportunity to be heard. His contention is that he did not in fact have an opportunity to be heard. The accused asserts that the Michigan trial panels violated the applicable rules by deciding to proceed without him when he did not appear at the scheduled hearings or answer the Michigan Bar's complaints.
The existence of a procedure for default, in cases of failure to respond after adequate notice, does not offend due process. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); Windsor v. McVeigh, 93 U.S. 274, 278, 23 L.Ed. 914 (1876). Our review of the record satisfies us that the Michigan procedural rules meet the requirements of due process and that the Michigan trial panels complied with all applicable procedural rules. Indeed, the accused was accommodated repeatedly. For example, in one case, a default order that had been entered properly was set aside, and two continuances were granted at the accused's request. The accused received constitutionally sufficient notice and opportunity to be heard in the Michigan disciplinary proceedings. He simply failed to take advantage of the opportunity.
We turn next to the question whether the accused should be disciplined. BR 3.5(b) provides that the decision of another jurisdiction "shall be sufficient evidence" that the accused lawyer "committed the misconduct described therein." That is, in a reciprocal discipline proceeding, the accused has no opportunity to challenge in Oregon the underlying factual findings of the other jurisdiction. 2 In that respect, a proceeding under BR 3.5 differs from other contested disciplinary proceedings. The facts described below are summarized from the findings of the Michigan trial panels.
A further word is in order about the analytical framework that we use. In the usual reciprocal discipline case, the acts of an accused violate the disciplinary rules of both jurisdictions. In determining an appropriate sanction, however, this court focuses on the accused's misconduct under the Oregon disciplinary rules. We do so because our choice of a sanction vindicates the judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred.
Accordingly, we consider whether the conduct of the accused violated disciplinary rules in this state. In his answer, the accused does not dispute that his conduct violated Oregon disciplinary rules. We agree that his conduct violated Oregon disciplinary rules, as follows.
(1) Kologek Matter
Mr. and Mrs. Kologek retained the accused to assist in resolving a partnership matter for the husband and a pension matter for the wife. He failed to take appropriate actions to pursue those matters, failed to return the Kologeks' files when asked, and failed to respond to the Michigan Bar's investigation.
By failing to take appropriate actions to pursue the matters entrusted to him, the accused violated DR 6-101(A) and (B) (a lawyer must provide competent and diligent representation). By failing to return the files when asked, the accused violated DR 2-110(A)(2) () and DR 9-101(B)(4) (). By failing to respond to the Michigan Bar's investigation, the accused violated DR 1-103(C) ().
(2) Fenn Matter
The accused initiated a probate proceeding in the Fenn estate. He failed to file a timely inventory, resulting in the suspension of the temporary personal representative. He then filed two defective inventories, failed to give notice to the heirs of the first and final account, and failed to take appropriate steps to close the estate. The accused also collected a $2,775 fee from the heirs but did not disclose the fee to the probate court. The Michigan disciplinary body concluded that the fee was illegal and clearly excessive. Again, the accused...
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