In re Conduct of Kluge

• Court: Oregon Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: 66 P.3d 492,335 Or. 326
• Decision Date: 10 April 2003
• Parties: In re Complaint as to the CONDUCT OF David R. KLUGE, Accused.

66 P.3d 492
335 Or. 326

In re Complaint as to the CONDUCT OF David R. KLUGE, Accused

(OSB 98-23; SC S49334).

Supreme Court of Oregon.

Submitted on the Record November 7, 2002.

Decided April 10, 2003.

66 P.3d 495

David R. Kluge, Portland, filed the briefs for himself

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

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) alleged that David R. Kluge (the accused) violated Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3)(conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(4) (conduct prejudicial to administration of justice); DR 1-103(C) (noncooperation with disciplinary investigation); DR 5-101(A) (conflict of interest with lawyer's self-interest); DR 5-102(C) (lawyer as witness other than in behalf of own client); DR 7-110(B) (contact with officials in adversary proceeding); and ORS 9.460(2) (lawyer shall employ only truthful means and not mislead court). A trial panel of the Disciplinary Board concluded that the accused had committed the alleged violations and "recommended"² that he be suspended from the practice of law for five years, with that suspension period to run consecutively to the accused's present three-year suspension. See In re Kluge, 332 Or. 251, 27 P.3d 102 (2001) (Kluge I) (suspending accused for three years, effective 60 days from June 28, 2001).

Our review is automatic, ORS 9.536(2); BR 10.1, and de novo, ORS 9.536(3); BR 10.6. The Bar has the burden of establishing the alleged misconduct by clear and convincing evidence. BR 5.2. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable. In re Cohen, 316 Or. 657, 659, 853 P.2d 286 (1993). Because the accused did not appear for oral argument in this court and the Bar waived oral argument, we have considered this matter on the record before the trial panel and on the briefs filed with this court.

On review, the accused argues that this court should invalidate the decision of the trial panel and dismiss all the charges against him upon the grounds that the Disciplinary Board denied him a fair disciplinary proceeding and that the Bar has failed to establish the alleged violations by clear and convincing evidence. The Bar responds that this court should uphold the decision of the trial panel and, at a minimum, impose its stated sanction.

For the reasons set out below, we conclude that the Disciplinary Board afforded the accused a fair disciplinary proceeding. We also conclude that the accused is guilty of each of the alleged violations and that, for those violations, the appropriate sanction is a two-year suspension from the practice of law. That period of suspension is to run consecutively to the accused's present three-year suspension.

I. FACTS

We find that the Bar has established the following facts by clear and convincing evidence.

66 P.3d 496

³ The accused was admitted to the Bar in 1978. In 1995, the accused worked both as the general manager and as legal counsel for "Tel-Ad," a group of several corporate entities.⁴ As Tel-Ad's general manager, the accused directly supervised an employee named Fischer. Because Fischer is deaf, Tel-Ad occasionally had provided him with a sign language interpreter for work-related matters

In March 1995, Tel-Ad decided that it no longer would pay for Fischer's interpreter service. Shortly after the accused informed Fischer of that decision, Fischer's employment at Tel-Ad ended.

Subsequently, Fischer filed an action against Tel-Ad in federal district court, alleging that Tel-Ad had violated state and federal employment discrimination laws by discontinuing his interpreter service and by wrongfully terminating his employment. In support of his wrongful termination claim, Fischer alleged that the accused had threatened to fire him if he pursued an employment discrimination claim against Tel-Ad. Fischer also alleged that, after he had informed the accused that he planned to pursue a discrimination claim, Tel-Ad had terminated his employment.

The accused represented Tel-Ad in the Fischer employment discrimination litigation. In July 1996, Fischer's lawyer notified the accused that she planned to call him as a witness and to introduce the accused's written notes and a recorded teletypewriter (TTY) conversation between Fischer and the accused as evidence in the case. Fischer's lawyer also objected to the accused's representation of Tel-Ad during a subsequent case conference before United States Magistrate Judge Jelderks. Judge Jelderks, however, declined to consider the issue until after he had ruled upon a summary judgment motion that Tel-Ad had filed in the case. Shortly thereafter, Judge Jelderks granted Tel-Ad's summary judgment motion and dismissed the complaint, both for lack of jurisdiction over the federal law claims and because he declined supplemental jurisdiction over the remaining state law claims.

Fischer then filed an action in Multnomah County Circuit Court, reasserting his state law claims. In January 1997, Fischer also filed a motion in that court to disqualify the accused from representing Tel-Ad in the matter upon the ground his representation violated DR 5-102(A) and(C). Judge Johnson heard oral argument on that motion, but postponed her ruling, because she determined that, in light of the exceptions contained in the rules, it was not yet apparent whether the accused's representation of Tel-Ad was prohibited.

In April 1997, Judge Pro Tem Fisher heard oral argument on a summary judgment motion that Tel-Ad had filed in the Fischer state court litigation. At the conclusion of that oral argument, Judge Fisher sua sponte raised her concern that, because the dispute involved him directly, the accused had a conflict of interest in representing Tel-Ad in that litigation. Because of that concern, Judge Fisher recommended that Fischer's lawyer renew the motion to disqualify the accused to Judge Johnson. Judge Fisher also denied Tel-Ad's summary judgment motion.

The accused subsequently filed a second summary judgment motion in Tel-Ad's behalf. The day after he filed that motion, the accused presented a motion ex parte to Judge Pro Tem Overgaard to disqualify Judge Fisher from hearing his summary judgment motion upon the ground that Judge Fisher was biased against him. The

66 P.3d 497

accused did not notify Judge Fisher or opposing counsel of his motion to disqualify Judge Fisher. The accused also did not inform Judge Overgaard that Judge Fisher already had ruled upon a substantive matter in the litigation. Judge Overgaard granted the accused's motion

A month after the accused had obtained the order disqualifying Judge Fisher, Fischer's lawyer learned of that order and filed a motion to set it aside. In June 1997, Judge Johnson set aside the order disqualifying Judge Fisher and entered an order disqualifying the accused from further representing Tel-Ad in the case. At no point before his disqualification did the accused inform Tel-Ad that he had, or potentially could have, a conflict of interest in the Fischer case.

In December 1997, after receiving a complaint from Judge Fisher, the Bar contacted the accused by letter to investigate his conduct in the Fischer litigation. The accused timely answered that letter, and, shortly thereafter, the Bar referred the matter to the Washington/Yamhill County Local Professional Responsibility Committee (LPRC). In February 1998, the accused met in person and cooperated with the investigating lawyer from the LPRC. In May 1998, the investigating lawyer again contacted the accused, but the accused refused a second interview and filed ethics complaints against the investigating lawyer and two other lawyers from the LPRC.⁵

The LPRC reassigned the investigation, and, in January 1999, the new investigating lawyer requested to interview the accused about the Fischer matter. The accused refused that interview and informed the investigating lawyer that he believed that the investigation was closed. In response, the investigating lawyer informed the accused by letter that the investigation was still active and, again, requested an interview. The accused did not respond to that letter and filed ethics complaints against the new investigating lawyer and other lawyers involved in the matter.⁶

In January 2000, the Bar filed a formal complaint against the accused for his conduct in the Fischer litigation. After extensive prehearing motions and discovery, the trial panel held a two-day disciplinary hearing that started in April 2001 and finished in October of that year. In February 2002, the trial panel issued its decision. As noted, the trial panel concluded that the accused had committed each of the alleged violations and suspended the accused from the practice of law for five years.

II. THE ACCUSED'S CLAIMS

Before turning to the charges against the accused, we address the accused's argument that the Disciplinary Board denied him a fair disciplinary proceeding. The accused first contends that this court must invalidate the trial panel's decision because the assigned regional chairperson erroneously denied the accused's peremptory challenge to the trial panel chairperson under BR 2.4(g).⁷ As explained below, because we determine that the accused waived that peremptory challenge, we reject the accused's argument.

In March 2000, after the assigned regional chairperson notified the accused and the Bar of the trial panel appointment, the accused timely submitted to her 27 six-page letters, in which he asserted various challenges for cause against each of the selected trial panel members. Except for the first paragraph

66 P.3d 498

of each of those letters, which the accused altered to reflect his different challenges for cause, all 27 letters appeared...