In re Maurer

• Decision Date: 13 December 2018
• Docket Number: S064901
• Citation: 431 P.3d 410,364 Or. 190
• Parties: IN RE Complaint as to the CONDUCT OF Steven L. MAURER, OSB No. 752437, Respondent.
• Court: Oregon Supreme Court

364 Or. 190

431 P.3d 410

IN RE Complaint as to the CONDUCT OF Steven L. MAURER, OSB No. 752437, Respondent.

S064901

Supreme Court of Oregon, En Banc.

Argued and submitted June 27, 2018.

December 13, 2018

Theodore W. Reuter, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the briefs for the Oregon State Bar.

Lawrence K. Peterson, Glazer, Maurer & Peterson, PC, Lake Oswego, argued the cause and filed the brief for respondent.

PER CURIAM

In this lawyer discipline case, the Oregon State Bar charged Steven L. Maurer, a retired judge who is now a practicing lawyer, with violating two disciplinary rules: (1) RPC 1.12(a), which prohibits a lawyer from representing a person in connection with a matter in which the lawyer participated personally and substantially as a judge without the informed written consent of all parties; and (2) RPC 8.4(a)(4), which prohibits conduct prejudicial to the administration of justice. A trial panel of the Disciplinary Board conducted a hearing and found that respondent had not committed the charged offenses, because the proceeding in which he represented his client as a lawyer was not the same matter in which he had participated as a judge. For the reasons that follow, we find that respondent's conduct violated RPC 1.12(a), that it did not violate RPC 8.4(a)(4), and that the appropriate sanction for respondent's misconduct is a 30-day suspension from the practice of law.

We review decisions of the trial panel de novo . ORS 9.536(2) ; BR 10.6. We find the following facts by clear and convincing evidence. BR 5.2 (Bar has burden of establishing alleged misconduct by clear and convincing evidence).

I. FACTUAL OVERVIEW

From 2007 to 2008, respondent, then the Presiding Judge of the Clackamas County Circuit Court, presided over the dissolution of the marriage of husband and wife.¹ The dissolution proceeding was acrimonious, and, at one point, wife accused husband of sexually abusing the couple's daughter. She did not provide proof of that allegation, and DHS determined that the allegation was unfounded. Respondent agreed and ordered wife to undergo a mental health evaluation and treatment. Ultimately, however, respondent issued a general judgment in September 2008, ordering the couple's daughter to be placed in wife's legal and physical custody. The judgment included a parenting plan that provided for regular, consistent, unsupervised visitation with husband and included various conditions. Respondent later issued orders in a modification proceeding between the parties in 2011.

Respondent retired from the bench in February 2013 and returned to private practice in Lake Oswego.

In February 2014, wife and husband appeared in Clackamas County Circuit Court before Judge Anderly to address wife's concern that the daughter's pet allergies were inflamed during her visitation with husband. Both wife and husband were unrepresented in that proceeding. At the conclusion of the hearing, Judge Anderly issued an order stating that "both parents shall immediately take action to reduce and eliminate the child's exposure to dogs and cats when she is in their care."

In April 2015, wife moved pro se for an order requiring husband to show cause why he should not be held in contempt for failing to comply with the February 2014 order. Wife alleged, among other things, that husband still had a cat that was causing the daughter to have allergic reactions

. Wife also requested an order requiring husband to pay $80,000 for the child's loss of "health and well-being" and requiring previsitation home inspections to ensure there were no cats in or around the house. Husband retained respondent to represent him in that contempt proceeding.

In June 2015, respondent communicated with wife to reschedule the contempt hearing. He identified himself as a retired judge, but he did not mention that he was the judge who had presided over wife's and husband's dissolution proceeding. Respondent neither requested nor received consent in writing from wife to represent husband in the contempt matter. As respondent later explained to the Bar, he had determined that no such consent was required, because (1) the contempt matter was brought under ORS chapter 33 and was a separate matter from the dissolution proceeding brought under ORS chapter 107 seven years earlier; (2) the contempt matter involved new claims and issues presented in a different and narrow legal context; and (3) respondent had not been "personally and substantially" involved in the entry of the February 2014 order addressing the daughter's allergies. Respondent reasoned that there was nothing in the contempt proceeding that required reference to, or examination of, or evaluation of the prior dissolution proceeding. He also concluded that the judge presiding over the contempt proceeding would have no jurisdiction to revisit, reexamine, modify, or seek to enforce any part of respondent's decision as a judge in the underlying dissolution.

In August 2015, respondent appeared in court before Judge Darling on husband's behalf at the hearing on wife's contempt motion. Wife appeared pro se and testified on her own behalf. In respondent's opening remarks, he referred to "the original dissolution back in 2008." Respondent asserted that, in the dissolution proceeding, wife had made accusations of sexual abuse against husband that were determined by DHS and the court to have been unfounded. He argued that the present contempt proceeding was an "outgrowth of that," insofar as the allegation that the child was suffering allergic reactions

to husband's cat was "simply made up" and no symptoms had ever been observed by husband, who is a physician. During those remarks, respondent did not mention that he was the judge who had determined that the sexual abuse allegations were unfounded.

Toward the end of wife's case, in which wife attempted to introduce photos taken on the daughter's mobile phone of cats in husband's home, the court engaged in an extended discussion with wife about the proper process for introducing documents into the record. That process included, among other things, handing the documents to respondent for his examination. Wife became upset during that colloquy and began to cry. The court ordered a brief recess for wife to regain her composure. After a few minutes, the hearing resumed.

At the conclusion of the hearing, the court determined that wife had failed to prove that husband was in contempt of the February 2014 order and granted husband's motion to dismiss the contempt charge. In so ruling, the court also rejected wife's request for the sanction of previsitation home inspections for the presence of cats, a remedy that would have required modification of the dissolution judgment, which was not properly before the court.²

II. THE CHARGES AGAINST RESPONDENT AND THE TRIAL PANEL'S DECISION

The Bar charged respondent with violating RPC 1.12 and RPC 8.4(a)(4). RPC 1.12(a) provides:

"Except as stated in [parts of the rules not relevant here], a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing."

RPC 8.4(a)(4) provides:

"It is professional misconduct for a lawyer to *** engage in conduct that is prejudicial to the administration of justice[.]"

The Bar argued that respondent violated RPC 1.12(a), because wife's motion to hold husband in contempt was the same "matter" that respondent personally and substantially participated in when he presided over the couple's dissolution. Respondent contended that the contempt proceeding was not the same "matter" as the dissolution because, in the contempt proceeding, wife was seeking to enforce a different judge's ruling on a factual matter unknown to the parties at the time of the dissolution. Respondent argued that the parties in the contempt proceeding did not seek modification of the dissolution judgment and the dissolution proceeding did not address pets or allergies. Therefore, respondent argued, there was no material factual or legal overlap between the two proceedings.

The trial panel agreed with respondent. It acknowledged that the dissolution "matter" involved, among other things, the well-being of the child and, to that end, established a parenting plan, which could be modified in the future, but the trial panel ultimately concluded that

"in no reasonable sense can it be said that a contempt motion for violation of another Judge's Order concerning allergies not at issue and unknown to the Court in the divorce proceedings constitutes the same ‘matter.’ "

For that reason, the trial panel ruled that respondent had not violated RPC 1.12(a). And, because the Bar's argument that respondent had engaged in conduct prejudicial to the administration of justice in violation of RPC 8.4(a)(4) was solely based on the rejected contention that respondent had violated RPC 1.12(a), the trial panel also concluded that respondent had not violated RPC 8.4(a)(4).

The Bar seeks review of the trial panel's determination that respondent did not violate either rule.

III. ANALYSIS

As noted, RPC 1.12(a) provides that "a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge[.]" All parties agree that respondent participated personally and substantially as a judge in husband's and wife's marital dissolution proceeding. Thus, whether respondent violated RPC 1.12(a) turns on whether his representation of husband in the contempt proceeding was "in connection with" the matter—the dissolution proceeding—that he had participated in as a judge.

In answering that question, the parties focus on the definition of "matter." The Rules of Professional Conduct define "matter" as follows:

" ‘Matter’ includes any judicial

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