In re Brandt/Griffin
| Citation | 331 Ore. 113,10 P.3d 906,331 Or. 113 |
| Parties | In re Complaint as to the CONDUCT OF William D. BRANDT, Accused. In re Complaint as to the Conduct of Mark E. Griffin, Accused. |
| Decision Date | 14 September 2000 |
| Court | Supreme Court of Oregon |
Peter R. Jarvis, Stoel Rives LLP, Portland, argued the cause and filed the briefs for the accused, William D. Brandt.
W. Eugene Hallman, Pendleton, argued the cause and filed the briefs for the accused, Mark E. Griffin.
Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. With her on the brief was Jeffrey Sapiro.
Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, KULONGOSKI, LEESON, and RIGGS, Justices.1
In this consolidated lawyer discipline proceeding, the Oregon State Bar (Bar) charged William D. Brandt and Mark E. Griffin (collectively, "the accused") with violating four disciplinary rules of the Code of Professional Responsibility: Disciplinary Rule (DR) 5-101(A)(1) (); DR 1-102(A)(3) (); DR 1-103(C) (); and DR 2-108(B) (). A trial panel of the Disciplinary Board found that the accused had committed all the charged violations and recommended that each lawyer be suspended from the practice of law for six months. One panel member dissented, concluding that the charges against the accused should be dismissed.
The accused have sought review of the trial panel's decision. ORS 9.536(1); Bar Rule of Procedure (BR) 10.1. This court reviews the record de novo. ORS 9.536(3) and BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. The testimony of an accused lawyer, if this court deems it credible, can be sufficient to establish facts. In re Gildea, 325 Or. 281, 295-96, 936 P.2d 975 (1997). We hold that the accused violated DR 5-101(A)(1), DR 2-108(B), and DR 1-102(A)(3). We suspend Griffin for a period of 12 months, and we suspend Brandt for a period of 13 months.
We find the following facts by clear and convincing evidence. The accused are partners in different law firms. Brandt's firm is in Salem, and Griffin's is in Portland. For many years, Brandt successfully represented hand tool distributors against the manufacturers of those tools. When the volume and complexity of those cases grew, Brandt began to associate Griffin as co-counsel. Griffin's practice emphasizes plaintiffs' complex business fraud litigation. In 1992, the accused agreed to represent Eric Bramel and his wife, former hand tool distributors, in resolving claims against Mac Tools. Bramel signed a retainer agreement that included a contingent fee provision of 45 percent of any recovery from settlement, trial, or appeal.
Initially, Bramel had hoped to net $1.5 million after all legal expenses. Late in December 1992, Bramel filled out a client questionnaire that Brandt had given him, and Brandt then drafted, but did not file, a complaint seeking $150,000 in compensatory damages and $4,445,000 in punitive damages from Mac Tools.
On April 1, 1993, Brandt told Bramel that Bramel's hope to net $1.5 million was not realistic, that Bramel should demand $275,000, and that he should accept a net settlement of between $130,000 and $150,000. Later that month, Brandt told Mac Tools that Bramel would settle his claims for $275,000. In mid-September 1993, Mac Tools countered with a net settlement offer of $19,700. Griffin recommended that Bramel reject that offer, and Bramel did so.
In late September, Bramel told Griffin that he needed $100,000 "in his pocket," because his financial situation was desperate and he might be forced to declare bankruptcy. Griffin responded that he would have more information about a settlement within thirty days.
By fall 1993, the accused had 49 clients, including Bramel, who had claims against Mac Tools. In October 1993, Brandt met in Denver with three other lawyers—Wagner, Miller, and Napper—who represented clients with claims against Mac Tools and its parent company, The Stanley Works (Stanley). Among them, the lawyers represented approximately 120 clients. The lawyers discussed the possibility of "global settlement negotiations" with Mac Tools and Stanley.
On October 18, 1993, Bramel told Griffin that he would settle his claim for $175,000. Later that month, Griffin told Bramel that Mac Tools and Stanley had agreed to try to settle the cases on a "global" basis and that Griffin and Brandt would continue "to press [Bramel's] individual settlement demand." Griffin also told Bramel that Mac Tools and Stanley had agreed to toll the statute of limitations until after the global settlement negotiations had terminated.
Mac Tools, Stanley, and the plaintiffs'2 lawyers agreed to meet in Chicago with a private mediator on November 5, 1993, to discuss settlement. On November 2, 1993, Bramel had reduced his demand to $165,000, an amount he told the accused was "the bare minimum acceptable."
On November 3, 1993, apparently in response to conversations that Wagner, Napper, Miller, and Brandt had had during their October meeting in Chicago, Wagner sent Griffin a copy of an article from an ABA Journal and an ABA ethics opinion about restricting the practice of law in connection with settlements. The article criticized Model Rules of Professional Conduct, Rule 5.6(b), and Model Code of Professional Responsibility, DR 2-108(B), both of which prohibit a lawyer from participating in offering or making an agreement that restricts the lawyer's right to practice law when settling a case. The ethics opinion expressed the view that "a lawyer may not offer, nor may opposing counsel accept, a settlement agreement which would obligate the latter to limit the representation of future claimants." ABA Comm. on Professional Ethics and Grievances, Formal Op. 371 (1993). Griffin attended the meeting in Chicago on November 5, 1993. Four days later, on November 9, he told Brandt and Weiss, another plaintiffs' lawyer, that Weddle, a Stanley vice-president, had expressed concern during the November 5 meeting that there be "no future litigation" against his company and had stated that the only way that he could be assured of that would be to retain the plaintiffs' lawyers to represent Mac Tools and Stanley in the future.3 According to Griffin, Weddle had "insisted that there be a linkage between settlement of present cases and a future agreement that we [the plaintiffs' lawyers] be retained by Mac [Tools] and Stanley." The plaintiffs' lawyers who were present at the meeting had responded that they would not discuss future employment and walked out of the room. Communicating through the mediator, the plaintiffs' lawyers subsequently offered to settle all the cases for approximately $18,060,000. Stanley countered with an offer of $9.5 million, which the plaintiffs rejected. Griffin has no "independent recollection" whether he told Bramel about Weddle's offer to hire the plaintiffs' lawyers. Brandt told some, but not all, of his clients about Stanley's retainer offer.
On December 20, 1993, both the accused attended another settlement meeting in Chicago. The lawyers present at that meeting agreed to settle all the claims for $13.32 million, subject to the approval of individual plaintiffs.4 The proposed settlement made no mention of the plaintiffs' lawyers being retained by Stanley in the future. After December 20, the accused began conferring with their clients to determine whether the clients would agree to the settlement amounts contained in the December 20 proposal.5 According to Brandt, Griffin had more responsibility for contacting clients than Brandt did. Brandt did talk informally with some of the clients, but neither he nor Griffin sent out letters about the December 20 proposed settlement, and Brandt kept no notes about what he said to any of the clients. Brandt believed that, by January 4, 1994, he and Griffin "had basically communicated with most of them * * * or I think all of them * * * that we had reached the numbers [i.e., amount of the settlement]." However, Brandt himself did not have "any recollection of any discussion with the clients," and he could not recall having any telephone conversations with Bramel between November 1, 1993, and January 11, 1994. On January 6, 1994, Brandt disagreed with Wagner that the agreement of December 20, 1993, was final regarding the amount of the settlement, because
Griffin testified that he did not believe that Bramel had conversations with anyone else except Griffin about the settlement. Griffin also testified that, although he "may have mentioned" the December 20 settlement to Bramel before January 13, he specifically remembers talking to Bramel on January 13. Griffin testified that Bramel agreed to the amount of the settlement on that date and that Griffin wrote "1-13-94, okay[ ]" next to $133.045.31 on the ledger that he had prepared reflecting the amount that each of his and Brandt's clients would receive under the terms of the proposed settlement.
Bramel, by contrast, testified that he did not learn of the amount of the settlement until he received a letter from the accused dated January 17, 1994. He also testified that the letter concerned him because the "settlement amount was lower than we had discussed" with the accused previously.6
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