In re Leuenberger
Decision Date | 15 July 2004 |
Citation | 93 P.3d 786,337 Or. 183 |
Parties | In re Complaint as to the CONDUCT OF James E. LEUENBERGER, Accused. |
Court | Oregon Supreme Court |
Terrance L. McCauley, Estacada, argued the cause and filed the brief for the accused.
Richard A. Weill, Bar Counsel, Troutdale, argued the cause for the Oregon State Bar.
Mary A. Cooper, Assistant 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
In this lawyer disciplinary proceeding, the Oregon State Bar alleged that lawyer James E. Leuenberger (the accused) had violated Code of Professional Responsibility Disciplinary Rule (DR) 7-102(A)(1) ( )(two counts); DR 7-102(A)(2) ( )(three counts); DR 7-106(C)(7) ( )(two counts); DR 7-110(B)(2) and (3) (communicating with judge as to merits of cause, without promptly delivering copy of written communication to opposing counsel or providing adequate notice of oral communication to opposing counsel) (two counts); DR 1-102(A)(4) ( )(two counts); and DR 5-101(A)(1) ( ). A trial panel of the Disciplinary Board determined that the accused had violated the rules as charged, with the exception of two counts of DR 7-102(A)(2) and one count of DR 7-106(C)(7). The trial panel imposed a 90-day suspension.
The accused has petitioned this court for review under ORS 9.536(1) and BR 10.3, challenging the trial panel's violation determinations and its selected sanction. We review de novo, ORS 9.536(2); BR 10.6. The Bar bears the burden of establishing the alleged misconduct by clear and convincing evidence. BR 5.2. "`Clear and convincing evidence' means evidence establishing that the truth of the facts asserted is highly probable." In re Cohen, 316 Or. 657, 659, 853 P.2d 286 (1993).
As explained below, we conclude after reviewing the record that, with the exception of DR 5-101(A)(1), the Bar has failed to prove by clear and convincing evidence that the accused violated the disciplinary rules at issue. We further conclude that, respecting the accused's violation of DR 5-101(A)(1), a public reprimand is the appropriate sanction.
All the alleged misconduct at issue here arose from the accused's representation of the Kerbers, who were the defendants in a foreclosure action. In July 1996, Taylor, a creditor of the Kerbers, obtained a judgment of foreclosure against them that involved their residence. In December 1997, the trial court entered a supplemental judgment against Mrs. Kerber for attorney fees that Taylor had incurred. The supplemental judgment did not contain a separate money judgment, which was required before Taylor could obtain a writ of execution. Mrs. Kerber appealed from that supplemental judgment. While the supplemental judgment was pending on appeal, Taylor's lawyer, Kosydar, submitted an amended supplemental judgment to the trial court that named both Mrs. and Mr. Kerber as judgment debtors and that contained a separate money judgment.
When the accused received a copy of Kosydar's proposed amended supplemental judgment, he concluded that the trial court did not have jurisdiction to enter it, because the original supplemental judgment was pending on appeal. He filed no objection, however, and the trial court entered the amended supplemental judgment on June 13, 1997. The court then entered a writ of execution, pursuant to the amended supplemental judgment, and a sheriff's sale was scheduled for July 30, 1997.
When the trial court entered the amended supplemental judgment, and for several weeks thereafter, the accused repeatedly advised the Kerbers to challenge that judgment. The Kerbers, however, resisted, because they were trying to refinance a loan on their residence to pay off Taylor and they were fearful that further litigation would increase Kosydar's attorney fees.
On either Friday, July 25, 1997, or Monday, July 28, 1997, Mr. Kerber called the accused in either the late afternoon or early evening and instructed him to challenge the amended supplemental judgment.2 The accused told Mr. Kerber that he would prepare the motion very early on July 29, 1997, and then would submit it later that morning at the court's regular time for hearing ex parte matters. The accused did not telephone Kosydar or otherwise notify her that he intended to present the motion.
On the morning of July 29, 1997, the accused drafted an ex parte motion to vacate the amended supplemental judgment upon the ground that the trial court had lacked jurisdiction to enter it. The phrase "ex parte" appeared in the caption of the motion, in compliance with the Uniform Trial Court Rules.3 Immediately after completing the motion, the accused transmitted it by facsimile to Kosydar's office and then left for court. Kosydar's law firm received the motion at 8:55 a.m., and Kosydar personally received it at 9:30 a.m. The facsimile did not state whether the accused intended to appear personally in court to present the motion.
Sometime after 8:00 a.m. that same morning, the accused went to see the judge who was assigned to hear ex parte matters for the day. The accused handed his motion to the judge and, as he describes it, "kept [his] mouth shut." After reading the motion and concluding that it would be contested, the judge told the accused that the matter must be set for a hearing. The accused scheduled a hearing for the following morning. At that hearing, Kosydar told the court by telephonic appearance that she had postponed the sheriff's sale, and the court decided to reschedule the hearing in regular course. A new hearing on the accused's motion to vacate the amended supplemental judgment was rescheduled to August 14, 1997.
Meanwhile, the Kerbers continued trying to refinance a loan on their residence so that they could pay off Taylor. The accused conferred with the Kerbers' lender, who maintained that, before title insurance could be issued, the lender needed the exact dollar figure necessary to satisfy Taylor's judgments in writing (hereafter "final payoff figure" or "payoff figure"). The accused asked Kosydar for that figure, but she did not provide it. Consequently, on July 30, 1997, the accused filed a motion requesting, under former ORS 18.410 (1995),4repealed by Oregon Laws 2003, chapter 576, section 580, that the trial court enter an order setting out a final payoff figure. The accused filed that motion after conferring with a title insurance lawyer who regularly invoked that statute in similar situations.
On August 14, 1997, the trial court held a hearing, over which Judge Nachtigal presided. The hearing concerned the accused's July 29, 1997, ex parte motion to vacate the amended supplemental judgment; his July 30, 1997, motion for an order under former ORS 18.410 (1995); a motion for sanctions against the Kerbers and the accused that Kosydar had filed relating to the accused's July 29, 1997, ex parte motion; and a request for attorney fees that Kosydar had filed. Judge Nachtigal first ruled against the accused on his motion to vacate the amended supplemental judgment, stating her understanding that the trial court had authority to make the types of corrections contained in the amended supplemental judgment.
Judge Nachtigal next addressed the accused's July 30, 1997, motion for a court-ordered final payoff figure under former ORS 18.410 (1995). As to any ruling on that motion, the record contains conflicting statements on Judge Nachtigal's part. For example, Judge Nachtigal first suggested that the Kerbers might not have been permitted to invoke former ORS 18.410 (1995), because they had not yet sought to obtain a satisfaction of Taylor's judgments against them.5 However, Judge Nachtigal then told the accused that it would not "take a rocket scientist to figure out" the final payoff figure using the judgments entered in the case. Finally, Judge Nachtigal told both parties that she could not calculate a payoff figure until any additional attorney fee issues had been resolved, stating to the accused, 6
Judge Nachtigal then addressed Kosydar's motion for sanctions respecting the accused's ex parte motion to vacate the amended supplemental judgment. Judge Nachtigal and the accused engaged in the following colloquy:
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... ... The Bar is correct factually, and the Bar is also correct, as we have noted, that compliance with the letter of the rule is required. See In re Leuenberger, 337 Or. 183, 212, 93 P.3d 786 (2004) (lawyer did not advise client to seek independent counsel regarding his conflict of interest and did not confirm advice in writing); Lawrence, 332 Or. at 512, 31 P.3d 1078 (court rejected lawyer's argument that he complied with "spirit" rather than "the ... ...
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