In re Long

• Decision Date: 21 February 2020
• Docket Number: SC S066327
• Citation: 366 Or. 194,458 P.3d 688
• Parties: IN RE Complaint as to the Conduct of Andrew LONG, OSB #033808, Respondent.
• Court: Oregon Supreme Court

366 Or. 194

458 P.3d 688

IN RE Complaint as to the Conduct of Andrew LONG, OSB #033808, Respondent.

SC S066327

Supreme Court of Oregon, En Banc.

Argued and submitted November 1, 2019.

February 21, 2020

E. Andrew Long, Portland, argued the cause and filed the briefs on behalf of himself.

Theodore William Reuter, Assistant Disciplinary Counsel, Tigard, argued the cause on behalf of the Oregon State Bar. Susan R. Cournoyer, Assistant Disciplinary Counsel, filed the brief.

PER CURIAM

The Oregon State Bar charged respondent, E. Andrew Long, with multiple violations of the Oregon Rules of Professional Conduct. Long contested the charges in a trial panel hearing. But he was not able to present his case to the trial panel, because the adjudicator concluded that Long had defaulted when he failed to appear for the second day of the hearing. Long moved the trial panel to vacate the default order, but the trial panel denied that motion. As a result of the default, the trial panel accepted as true all the factual allegations against Long and admitted the Bar's exhibits. BR 5.8(a). The trial panel concluded that the Bar's allegations, deemed to be true, established that Long violated numerous disciplinary rules and that disbarment was an appropriate sanction.

On review, Long contends that the adjudicator erred in finding him in default and that the trial panel erred in denying his motion to vacate the default order. Long also contends that, even if the default was proper and properly sustained, the factual allegations against him do not establish the violations found by the trial panel. And finally, Long contends that, even if the violations were established, disbarment is not an appropriate sanction.

We agree with Long that the trial panel erred in denying his motion to set aside the adjudicator's order of default. Because that conclusion is dispositive, we remand the matter to the trial panel without addressing Long's remaining arguments.

I. BACKGROUND

The Bar filed a complaint in December 2017 and an amended complaint in March 2018. Long filed an answer, denying the Bar's allegations. Subsequently, Long and the Bar engaged in discovery and filed numerous motions with the adjudicator. The parties filed more motions as they approached the beginning of the trial panel hearing in August 2018. Those motions addressed, for example, the hearing dates and the witnesses who would testify. In the weeks before the hearing, the parties designated their exhibits, raised objections to the opposing party's exhibits, and filed their trial briefs.

The trial panel hearing began on August 21 with the Bar presenting witnesses and offering exhibits. Long, who represented himself at the hearing, was about 30-45 minutes late to the start of the hearing that day and was late by about the same amount of time in returning from the lunch recess. Both times he emailed the adjudicator to say that he was running late because he was checking on his partner, who was sick. Long had intended for his partner to serve as his assistant during the hearing.

On the second day, the hearing was set to begin at 9:00 a.m., with the Bar continuing to present its case. By 10:00 a.m., Long had not arrived and had not contacted either the Bar or the adjudicator. The adjudicator declared Long in default based on his failure to appear. BR 5.8(a). The adjudicator also admitted all of the Bar's proposed exhibits.

At 11:16 a.m., Long emailed the Bar and the adjudicator to say that he had overslept after being ill the night before, when he was also caring for his ill partner. He explained that would arrive for the hearing at 1:30 p.m. and would be prepared to present his case the next day. At the same time that Long sent his email, the adjudicator emailed Long, stating that he had declared Long in default at 10:00 a.m. and that the trial proceedings would now focus on an appropriate sanction. Long responded by email, explaining that he had witnesses prepared to testify later in the week and asking the adjudicator to simply continue the trial until that afternoon or the following day.

The adjudicator replied later that day, indicating that, if Long wanted relief from the default, then Long would have to file a motion to set it aside. The adjudicator also noted that he, too, had become ill and would soon be checking himself into the hospital. He added that, even if he could be persuaded to set aside the default, the hearing would likely not resume until the following week because of his own illness.

The adjudicator issued his formal order of default on August 27. The next day, Long moved to set aside the default under BR 5.8(b), which authorizes the trial panel to do so if a respondent proves that he failed to appear because of "mistake, inadvertence, surprise, or excusable neglect." In his motion to set aside the default, Long argued that his failure to appear was the result of inadvertence and excusable neglect because he had been ill the night before he failed to appear.¹

According to Long, on the first day of trial (August 21), he notified the adjudicator that his partner was sick. And then, that night, he also became ill, "apparently with the same condition that was affecting his partner." In his motion, Long asserted,

"The illness prevented him from sleeping most of the night, due to vomiting and other symptoms of stomach flu (viral gastroenteritis ). Mr. Long is unaware of what time he fell asleep on the night of August 21 (morning of August 22), 2018, but it was certainly well past 3:00am. He fell asleep unintentionally in a chair far later than he ever would have expected but utterly exhausted by illness.

"On the morning of August 22, 2018, both Mr. Long and his partner remained very ill. Mr. Long woke up some time after 9:00am on August 22, 2018 feeling very sick, dehydrated, and disoriented due to illness. It took him some time (perhaps 45 to 60 minutes—far longer than usual) to ‘wake up’ and re-orient himself."

To support his motion to set aside, Long submitted evidence that, later in the day on August 22, a doctor had diagnosed Long with stomach flu. Long argued that those combined facts established both inadvertence and excusable neglect, on the basis of which he asked the trial panel to set aside the default order.²

The trial panel denied Long's motion. In doing so, the trial panel did not question the veracity of the facts that Long alleged. Instead, the trial panel concluded that those facts, even if true, were insufficient to establish inadvertence or excusable neglect.

With respect to inadvertence, the trial panel stated: "Webster's Third New International Dictionary defines inadvertence, in relevant part, as ‘lack of care or attentiveness : INATTENTION * * *.’ Respondent's failure to appear did not result from inattention—he was well aware of the scheduled trial appearance."

As to excusable neglect, the trial panel cited case law stating that excusable neglect requires a showing that the person has taken reasonable steps to protect his or her interests, such as having reasonable procedures designed to avoid the type of error or omission that occurred. The trial panel said that Long made no such showing:

"Absent from respondent's description of his failure to appear is any evidence that he had a reasonable procedure to avoid such an event from occurring, e.g. , an alarm clock. As the Bar's memorandum in opposition recites, respondent was regularly late for scheduled proceedings in this case, including both the morning and afternoon sessions of the first day of trial. Respondent waited until 2 1/4 hours after the scheduled start of day two of the trial to even attempt to notify the Adjudicator of the reason for his absence."

Based on its conclusions that Long failed to establish inadvertence or excusable neglect, the trial panel denied Long's motion to set aside.

In light of the default, BR 5.8(a) governed the remaining proceedings. That rule required the trial panel to "deem the allegations in the formal complaint to be true" and allowed the trial panel to consider "evidence or legal authority limited to the issue of sanction." BR 5.8(a). Beyond the allegations in the complaint, the Bar submitted numerous exhibits, which the trial panel considered in its sanction analysis.

The trial panel issued its written opinion in October 2018, finding that the Bar's allegations, taken as true, established that Long violated numerous disciplinary rules. The panel concluded that disbarment was the appropriate sanction:

"Considered as a whole, the pattern and extent of respondent's misconduct shows that he has not, and is not likely to, conform his conduct to the rules demanded of all lawyers. The trial panel concludes that any sanction short of disbarment will be insufficient to protect the public and the integrity of the profession."

Long asked this court to review the decision of the trial panel under BR 10.2.

II. ANALYSIS

We focus our analysis on whether Long established sufficient grounds to set aside the adjudicator's order of default. That question is governed by BR 5.8(b), which provides, in part, that "the trial panel may set aside an order of default upon a showing by the respondent that the respondent's failure to *** appear timely was the result of mistake, inadvertence, surprise, or excusable neglect." The trial panel, as explained above, concluded that Long failed to establish that his failure to appear was the result of inadvertence or excusable neglect and denied his motion to set aside the order of default.³

We review the trial panel's denial de novo . See ORS 9.536(2) ("When a matter is before the Supreme Court for review, the court shall consider the matter de novo and may adopt, modify or reject the decision of the disciplinary board in whole or in part and thereupon enter an appropriate order."); BR 10.6 ("The Supreme Court shall consider each matter de novo upon the record and may adopt, modify, or reject the decision of the trial panel in whole or in part and...