Haws, In re

• Decision Date: 26 November 1990
• Docket Number: Nos. 86-58,s. 86-58
• Citation: 801 P.2d 818,310 Or. 741
• Parties: In re Complaint as to the Conduct of Eric HAWS, Accused. ; 86-121; 86-125; 86-127; 86-142; 87-9; 87-13; and 87-20; SC S33640.
• Court: Oregon Supreme Court

Page 818

801 P.2d 818

310 Or. 741

In re Complaint as to the Conduct of Eric HAWS, Accused.

Nos. 86-58; 86-121; 86-125; 86-127; 86-142; 87-9;

87-13; and 87-20; SC S33640.

Supreme Court of Oregon.

Argued and Submitted Sept. 7, 1989.

Decided Nov. 26, 1990.

[310 Or. 742A] John C. Fisher, Eugene, argued the cause and filed the brief for the accused. With him on the reply brief was David Dickens, Eugene.

Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, filed the brief and argued the cause for the Oregon State Bar.

Before PETERSON, C.J., and LINDE ^*, CARSON, JONES ^**, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

PER CURIAM.

In this lawyer discipline case, the accused was charged by a formal complaint of the Oregon State Bar, setting forth 16 causes of complaint involving 21 separate violations of 10 different provisions of the disciplinary rules. ¹ After three days of hearing, the Trial Panel found the accused guilty of eight separate violations. The decision of the Trial Panel was that the accused be suspended for 60 days, that such suspension be stayed, and that the accused be placed on probation for two years. The accused sought review in this court.

The alleged violations involve the activity of the accused in respect of seven clients and the failure of the accused to respond fully to inquiries following complaints of misconduct. The Trial Panel found the accused guilty of one act of professional misconduct Upon the request of the Bar, because of the unavailability of witnesses, two causes of complaint (involving five alleged violations: incompetency, lack of preparation, and neglect of a legal matter) ⁴ were dismissed at the time of the hearing. In its written Opinion and Disposition, the Trial Panel did not find ⁵ the accused guilty of the remaining eight allegations of violations of the disciplinary rules. The eight allegations concerned seven different disciplinary rules: DR 1-102(A)(4), now, as amended, DR 1-102(A)(3) (engaging in dishonest, fraudulent, deceitful, or misrepresentative conduct), DR 2-101(A)(1) (false and misleading communication), DR 4-101(B)(1) (revealing client's confidence), DR 6-101(A)(3), now, as amended, DR 6-101(B) (neglecting a legal matter), DR 7-101(A)(2) (failing to carry out a contract of employment), DR 7-102(A)(2) (advancing an unwarranted claim), and DR 9-102(B)(3), now, as amended, DR 9-101(B)(3) (failing to render appropriate accounting).

prejudicial to the administration of justice (DR 1-102(A)(4)) ² and of seven separate failures to respond fully to investigative inquiries (DR 1-103(C)). ³

Although the Trial Panel concluded that the evidence presented did not establish, by clear and convincing evidence, the guilt of the accused in the foregoing eight allegations of disciplinary rule violations, we consider the matter de novo and may adopt, modify, or reject the decision of the Trial Panel. ORS 9.536(3); BR 10.6. In such review, we are free to review the decisions that are favorable to the accused as well as those that are unfavorable. In re Kitchen, 157 Or. 32, 51, 68 P.2d 1068 (1937). However, after such review, we agree with the Trial Panel that there is insufficient evidence of misconduct to find the accused guilty of the eight charges noted.

The accused challenges three aspects of the decision by the Trial Panel. First, he challenges the decision that he engaged in conduct prejudicial to the administration of justice (DR 1-102(A)(4)). Secondly, although the accused does not contest the finding of guilt upon the seven charges of failing to fully and truthfully respond to investigative inquiries (DR 1-103(C)), he does challenge the severity of the sanction of a 60-day suspension from the practice of law. The accused states that a reprimand would be the appropriate sanction. Finally, the accused challenges the conditions of probation imposed during the two-year stay of the suspension.

DISCIPLINARY RULE VIOLATIONS

Conduct Prejudicial to the Administration of Justice (DR 1-102(A)(4)).

The accused, by answer and by his testimony at the hearing, admitted the factual allegations set forth in the formal complaint. Those allegations were that: The accused was retained by the Wilsons (husband and wife) to initiate a bankruptcy proceeding; the Wilsons were required to pay over to the trustee in bankruptcy non-exempt wages in the approximate sum of $214; the Wilsons sent a money order in The Trial Panel also heard testimony that the Wilsons had made numerous unsuccessful attempts to communicate by telephone with the accused in this matter. The resulting failure of the accused to respond to his clients generated their complaint to the Bar. No matter how unprofessional the failure to communicate properly with his clients may have been, that conduct was not pleaded as a basis of this cause of complaint.

the prescribed amount to the accused on or about September 30, 1986; the accused then did not forward the payment; on or about October 21, 1986, the trustee requested that non-exempt wages be paid over; the accused did not respond; the trustee, on or about November 19, 1986, made a second request for payment; and the accused then immediately made payment.

From the foregoing facts, the Bar, acknowledging that the violation "was not one of great magnitude," asserts that there is clear and convincing evidence that the conduct of the accused was prejudicial to the administration of justice. The accused asserts that no funds were distributed by the trustee until more than two months after the accused complied with the second request. Consequently, argues the accused, his delay caused no harm or inconvenience beyond requiring the trustee to send a follow-up letter requesting payment; hence, the accused contends his delayed response in turning over the funds did not cause any prejudice to the administration of justice.

In text, the Disciplinary Rule at issue (DR 1-102(A)(4)) is simple and straightforward: It proscribes "conduct that is prejudicial to the administration of justice." The challenge lies in the application of this rule, a rule that has been criticized for the uncertainty or vagueness of the scope of the proscription. ⁶ However, this court has concluded that the terms of DR 1-102(A)(4) are sufficiently definite for the purpose of a disciplinary proceeding and to withstand a claim of unconstitutional vagueness. In re Roger Rook, 276 Or. 695, 705, 556 P.2d 1351 (1976). ⁷

In the 19 words that comprise the rule, the key words are but five: "conduct", "prejudicial", and "administration of justice." Further examination of the key or operative words will help:

"Conduct." Although this word can have several distinct meanings, in the context of the Disciplinary Rule, it refers to the way one acts. It can mean doing something that one should not do. In re Paauwe, 294 Or. 171, 654 P.2d 1117 (1982) (lawyer filed a notice of appeal in a case known to have no merit). It also can mean not doing something that one is supposed to do. In re Dixson, 305 Or. 83, 750 P.2d 157 (1988) (lawyer repeatedly failed to appear for client's deposition). Here, the failure of the accused to forward the wage payment to the bankruptcy trustee was of the latter form of conduct.

"Administration of justice." The reach of this term is not well defined in our case law or elsewhere. Our previous opinions have assumed that judicial proceedings and matters directly related thereto are within the ambit of the term. This court has found that the rule encompasses conduct such as: The failure to appear at trial, In re Bridges, 302 Or. 250, 728 P.2d 863 (1986); the failure to appear at depositions, In re Dixson, supra, 305 Or. at 89-90, 750 P.2d 157; harassing court personnel, In re Rochat, 295 Or. 533, 668 P.2d 376 (1983); filing an appeal without the consent of the clients, In re Paauwe, supra, 294 Or. at 177, 654 P.2d 1117; repeated appearances in court while intoxicated, In re Dan Dibble, 257 Or. 120, 478 P.2d 384 (1970); and permitting a non-lawyer to use a lawyer's By recognizing that Bar disciplinary proceedings "strongly resemble judicial proceedings in that they primarily involve factual adjudications," this court, in In re Boothe, 303 Or. 643, 654, 740 P.2d 785 (1987), concluded that the Bar disciplinary proceedings fell within the scope of the administration of justice. ⁸ Other proceedings that contain the trappings of a judicial proceeding, such as sworn testimony, perjury sanctions, subpoenas, and the like, similarly would qualify as being within the confines of the administration of justice.

name on pleadings, In re Jones, 308 Or. 306, 779 P.2d 1016 (1989).

Two components of the "administration" part of the concept can be identified: 1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding. A lawyer's conduct could have a prejudicial effect on either component or both. Moreover, it is the potential effect of the conduct that is reviewed in this segment of the rule. The fact that a lawyer's conduct, viewed after the fact, did not actually affect the administration of justice would be considered under the "prejudice" segment of the rule. See In re Boothe, supra, 303 Or. at 653, 740 P.2d 785 (unsuccessful attempt to induce a witness not to testify nevertheless prejudicial). This line of reasoning, though unstated, may have caused this court to conclude, as it did, that procuring a false notarial certificate falls within the proscribed conduct. In re Smith, 292 Or. 84, 94, 636 P.2d 923 (1981).

The conduct of the accused here in failing promptly to respond to the request of the bankruptcy trustee clearly falls within the scope of judicial proceedings and could have affected the procedural functioning of the system or his clients' substantive interests.

"Prejudice." This is the most problematic term in this disciplinary rule. In context, "prejudice" means "harm" or "injury." That part is easy. The problem arises in fairly...