In re Complaint as to Conduct of Summer

• Decision Date: 03 February 2005
• Citation: 105 P.3d 848,338 Or. 29
• Parties: In re COMPLAINT AS TO the CONDUCT Of D. Scott SUMMER, Accused.
• Court: Oregon Supreme Court

105 P.3d 848

338 Or. 29

In re COMPLAINT AS TO the CONDUCT Of D. Scott SUMMER, Accused.

(OSB 01-199; SC S50870).

Supreme Court of Oregon, En Banc.

Argued and Submitted September 10, 2004.

Decided February 3, 2005.

Christ. T. Troupis, Troupis & Summer, Meridian, Idaho, argued the cause and filed the brief for the accused.

Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar.

PER CURIAM.

This lawyer disciplinary proceeding involves an Idaho lawyer (the accused) also licensed to practice law in Oregon, whom the Oregon State Bar (Bar) contends attempted to recover twice for a client's injuries. The Bar's complaint alleged that the accused violated several rules of the Oregon Code of Professional Responsibility¹ and Oregon statutes or, if the choice of law provision of Oregon State Bar Rule of Procedure (BR) 1.4(b) required application of Idaho's rules, several Idaho Rules of Professional Conduct. The trial panel concluded that the accused violated Oregon Disciplinary Rule (DR) 1-102(A)(2) (committing criminal act reflecting adversely on lawyer's honesty, trustworthiness, or fitness to practice law); DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 7-102(A)(5) (knowingly making false statements of fact in course of client's representation); and ORS 9.527(4) (authorizing sanctions for willful deceit or misconduct). The trial panel also concluded that it lacked "jurisdiction" to consider the alleged Idaho rule violations. The trial panel imposed a 30-day suspension.

The Bar sought review under ORS 9.536(1) and BR 10.1. It does not dispute the trial panel's findings, but argues that the accused's misconduct warrants at least a 180-day suspension from the practice of law. The accused maintains that he did not commit the violations alleged, but asserts that, if this court holds otherwise, the court should impose a lesser sanction in light of the applicable mitigating factors.

We review the record de novo, and the Bar has the burden of establishing the alleged misconduct by clear and convincing evidence. ORS 9.536(2); BR 10.6; BR 5.2. For the reasons that follow, we conclude that the accused violated DR 1-102(A)(2), DR 1-102(A)(3), and DR 7-102(A)(5)² and that the appropriate sanction is a 180-day suspension from the practice of law.

I. FACTS

The following facts either are undisputed or have been established by clear and convincing evidence. The accused became a member of both the Idaho and Oregon bars in April 1996. Soon thereafter, the accused assumed a heavy caseload at a high-volume personal injury law firm in Nampa, Idaho.³ To process each case, the accused relied on support staff to obtain medical records, provide him with summaries of those records, and assemble pertinent records that supported demand letters that he drafted. In negotiating settlement with insurers, it was common firm practice and the accused's practice to instruct staff to withhold any medical records that might be adverse to a client's claim. The accused, nonetheless, retained final approval and authority over all demand letters and supporting documentation.

Michael White was one of the accused's first clients. White was involved in two unrelated automobile accidents within 11 days of each other on April 4 and 15, 1996. Neither accident was White's fault. The first accident occurred in Idaho. Immediately after the first accident, White received emergency medical treatment for face, mouth, and dental injuries; bruised ribs, knees, and shoulder; and some back and neck injuries. State Farm Mutual Auto Insurance (State Farm) insured the at-fault driver in that accident. The second accident occurred in Oregon, but involved a driver and truck from an Idaho-based company, Boise Cascade. Shortly after the second accident, White told Boise Cascade's Oregon claims adjuster that he had not been injured in that accident.

White continued receiving medical treatment for injuries sustained in the first accident, although much of that chiropractic, physical therapy, and dental care took place after the second accident occurred.

White retained the accused to represent him in his injury claim against State Farm. The accused sent a letter of representation to State Farm in May 1996. After receiving the letter, State Farm learned about White's second accident with Boise Cascade, a self-insured entity. State Farm conferred with Boise Cascade more than once concerning White's second accident.

On September 20, 1996, the accused sent State Farm a demand letter describing White's injuries as, among other things, lacerated gums, loosened front teeth, violent insult to entire spinal structure, and "continued pain, soreness, and stiffness." Supporting those claims, the accused also submitted White's emergency care, medical, dental, chiropractic, and physical therapy records.

State Farm responded to the accused by inquiring about White's second accident. The accused consulted White, then replied on October 8, 1996, stating that the accused was unaware of the second accident because White had not been injured in that accident. State Farm independently assessed the value of White's injuries and settled the claim for $10,500 on October 30, 1996.

One week thereafter, on November 6, 1996, the accused sent a demand letter to Boise Cascade stating that, although White had been in an earlier accident, White "did not suffer any symptoms nor did he seek treatment until after the accident and injuries caused by [Boise Cascade]."⁴ The accused further claimed that Boise Cascade caused White "neck, back, and a laceration to [the] mouth" injuries. The accused demanded $9,081 to settle White's claim. Although the accused included with his demand letter some new medical records from White's orthopedist and internist, he also submitted the same physical therapy, chiropractic, and dental records that he previously sent to State Farm.⁵

Because its claims adjuster reported White uninjured in the Boise Cascade accident, and because many of the submitted medical records referenced the first accident as the source of White's injuries, Boise Cascade denied White's claim, alerted State Farm, and contacted Idaho's insurance fraud investigation department.

State Farm eventually concluded that its settlement with White was appropriately valued. However, the State of Idaho criminally charged the accused and a criminal proceeding commenced in April 2001. A jury found the accused guilty of attempted grand theft by deception under the Idaho criminal code. The trial court withheld entry of the judgment and ordered probation, according to a sentencing procedure available in Idaho.

The Bar delayed its own formal proceeding against the accused at his request, pending completion of his criminal trial and appeal. Accordingly, the Bar did not file its final amended complaint until April 11, 2003, seven years after the events at issue. The parties have stipulated that the Idaho Bar also has commenced but not concluded disciplinary proceedings against the accused.

II. CHOICE OF LAW

Although not a matter of dispute between the parties, we first consider the threshold issue of choice of law. BR 1.4(b) provides:

"In any exercise of the disciplinary authority of Oregon, the rules of professional conduct to be applied shall be as follows:

"(1) For conduct in connection with a proceeding in a court before which an attorney has been admitted to practice, either generally or for purposes of that proceeding, the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

"(2) For any other conduct,

"(A) If the attorney is licensed to practice only in Oregon, the rules to be applied shall be the Oregon Code of Professional Responsibility and the Bar Act; and

"(B) If the attorney is licensed to practice in Oregon and another jurisdiction, the rules to be applied shall be the rules of the jurisdiction in which the attorney principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the attorney is licensed to practice, the rules of that jurisdiction shall be applied to that conduct."

BR 1.4(b) (emphasis added).

The accused principally practices law in Idaho. Thus, the trial panel erred when it asserted that it did not have "jurisdiction" to consider Idaho's disciplinary rule violations unless, consistently with the second clause of BR 1.4(b)(2)(B), the accused's conduct had its "predominant effect" in Oregon.⁶

Although the accused principally practiced law at his firm's Idaho office, he occasionally practiced out of its Oregon office, and he is admitted to practice in both jurisdictions. The first accident occurred in Idaho, but the second accident occurred in Oregon. Boise Cascade is principally an Idaho company, but its claims adjuster was located in Oregon. That adjuster collected accident information from White in Oregon and was the first to receive the accused's Boise Cascade demand letter.

It follows, then, that the effects of the accused's conduct were felt in both Oregon and Idaho. It could be argued that the accused's acts had approximately equal impact in each jurisdiction. However, neither party has argued for the exclusive application of Idaho's rules, and both have briefed and argued under Oregon's disciplinary rules.⁷ In effect, the parties have litigated this proceeding as if the accused's acts had their predominant effect in Oregon. Where that conclusion is at least plausible, we will accept it and proceed accordingly by applying Oregon's disciplinary rules.

III. OREGON DISCIPLINARY RULE VIOLATIONS

A. DR 1-102(A)(2)

DR 1-102(A)(2) provides that "[i]t is professional misconduct for a lawyer to * * *[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness[,] or fitness to practice law[.]"...