In re Paulson

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Per Curiam
• Citation: In re Paulson, 216 P.3d 859, 346 Or. 676 (Or. 2009)
• Decision Date: 03 September 2009
• Docket Number: 07-21.,06-05.,OSB 05-187.,SC S055610.,07-20.,07-22.,07-19.
• Parties: In re Complaint as to the CONDUCT OF Lauren J. PAULSON, Accused.

216 P.3d 859

346 Or. 676

In re Complaint as to the CONDUCT OF Lauren J. PAULSON, Accused.

OSB 05-187.

06-05.

07-19.

07-20.

07-21.

07-22.

SC S055610.

Supreme Court of Oregon, En Banc.

Argued and Submitted December 9, 2008.

Decided September 3, 2009.

Lauren J. Paulson, Aloha, argued the cause and filed the briefs in propria persona.

Stacy J. Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar, alleging 13 causes of complaint, charged the accused with violating provisions of the Oregon Code of Professional Responsibility Disciplinary Rules (DRs) (applicable to conduct before January 1, 2005) and the Oregon Rules of Professional Conduct (RPCs) (applicable to conduct on and after January 1, 2005). Specifically, the Bar alleged that the accused violated DR 1-102(A)(4) and RPC 8.4(a)(4) (conduct prejudicial to administration of justice); DR 2-106(A) (charging a clearly excessive fee); RPC 1.16(a)(1) (failure to withdraw from representation when representation will result in violation of RPC or other law); RPC 1.16(d) (failure to take steps to protect client's interest after termination of representation); RPC 3.3(a)(1) (knowingly making false statement of law or fact to tribunal); RPC 5.5 (unauthorized practice of law); RPC 8.1(a)(2) (failure to respond to lawful requests of disciplinary authority); RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on lawyer's fitness to practice law).¹ A trial panel of the Disciplinary Board concluded that the accused had violated the rules as alleged. As a sanction, the trial panel disbarred the accused.

The accused seeks review pursuant to ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1. Our review of the trial panel's decision is de novo. ORS 9.536(2); BR 10.6. In disciplinary proceedings, the alleged misconduct must be established 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 Johnson, 300 Or. 52, 55, 707 P.2d 573 (1985).

In his brief to this court, however, the accused does not challenge the trial panel's factual findings, its conclusions that he violated the disciplinary rules, or the disbarment sanction that the trial panel imposed for those violations. The accused's questions presented and substantive arguments address only procedural issues and issues that he has styled as "affirmative defenses" to the alleged violations that he asserts require dismissal of the complaint against him.² At most, through certain assertions made in his summary of facts, the accused indirectly takes issue with limited aspects of the trial panel's findings and conclusions.

Although the accused's arguments do not invite our full de novo review of the causes of complaint, we have reviewed the entire record and the trial panel's findings and conclusions.³ The trial panel's opinion in this matter is comprehensive, detailed, and generally incisive. Because of the manner in which the accused has limited his challenges to the trial panel's opinion, we do not discuss the evidence presented to the trial panel—which is voluminous—in painstaking detail. Even so, due to the number and variety of violations that the accused is alleged to have committed, our discussion is extensive. In the sections that follow, we summarize the record and the trial panel's findings and conclusions, identify our agreement with those findings and conclusions, and respond as appropriate to the challenges—albeit indirect—that the accused makes to the trial panel's findings and conclusions. We then turn to an examination of the procedural issues that the accused raises, including his "affirmative defenses." Finally, although the accused does not challenge the appropriateness of the sanction of disbarment, we address that question.

For the reasons that we explain below, we conclude that the accused has committed all the violations alleged by the Bar and found by the trial panel. We also conclude that the appropriate sanction is disbarment.

I. BRADY-AIELLO MATTER

A. Factual Background

The Bar's first three causes of complaint arose out of the accused's handling of an estate matter. The Bar alleged that the accused violated four rules in his handling of the Brady-Aiello matter: DR 1-102(A)(4) and RPC 8.4(a)(4) (conduct prejudicial to administration of justice);⁴ DR 2-106(A) (charging clearly excessive fee); and RPC 8.1(a)(2) (failure to respond to lawful requests of disciplinary authority).

The trial panel's opinion sets out an extensive and detailed recitation of factual findings relevant to this matter, complete with citations to the record. We have reviewed both the trial panel's findings and the record in full. Based on that review, we provide the following summary of what occurred.

The accused represented a disabled man (Brown) and prepared both a living trust and a pour-over will for him. Under Brown's will, the accused was made the personal representative of the estate, all of which was devised to Brown's caregivers, Trudy Brady-Aiello and Michael Aiello. Under the trust, the accused succeeded Brown as trustee upon Brown's death. Brown died in 2001. Because both Brown and his wife, who predeceased him, had received state health assistance during the last years of their lives, the state had two priority claims against Brown's estate. The estate consisted of only a few assets, and there were only a few claims against those assets (e.g., the state's claims, hospital claims, and a few other routine creditor claims). Settling the estate and distributing the assets should have been a straightforward process for all concerned. But, due to the accused's conduct, it was not.

Although often representing that he stood ready to distribute the assets, the accused delayed and failed to do so. Eventually, the beneficiaries were forced to retain independent counsel. Some 17 months after Brown's death, the accused finally filed a small estate matter in probate court. The state then made two formal claims against the estate to recover the medical assistance paid on behalf of Brown and his wife. The accused, however, disallowed the claims, forcing the state to petition the court. In that and other respects, the accused, who was frequently suspicious and distrustful of the beneficiaries and their lawyers, often treated the process of settling the estate and distributing the estate as an adversarial one. Eventually, by court order, the accused was removed and replaced as trustee of the trust and personal representative of the estate. That occurred more than two and a half years after Brown's death. The new personal representative settled the estate and distributed the assets within a year after taking over. The only significant complications that the new personal representative encountered were the accused's failure to turn over various items in the estate (including access to a safe deposit box) and the accused's filing of an attorney fee lien against the estate for fees that the court, in removing the accused as personal representative, had told the accused that he could not collect. Once the lien was dismissed and the new personal representative had access to the materials and information that he needed from the accused, the estate matter was completed within a few months.

We do not relate, detail by detail and date by date, the series of failed meetings, frustrated negotiations, and protracted court proceedings that are described in the trial panel's extensive findings of fact. We do, however, quote in full the trial panel's summary of and assessment of those facts:

"The Brady-Aiello matter became a nightmare for virtually everyone involved solely because of the actions taken by the Accused. As noted above, this matter arose out of the death of Alan Brown. He had two beneficiaries, Trudy Brady-Aiello and Michael Aiello. There were no other beneficiaries to the estate, and only a single claim made against the estate assets. The bulk of the estate was in a trust and should have passed without fanfare or issue to the Aiellos. Unfortunately, each action taken by the Accused seemed designed to lengthen the process. When he was removed as trustee of the estate in May 2004, nearly three years after the decedent's death, the title to a single asset had not yet passed to the beneficiaries.

"In a case where most beneficiaries would not need independent counsel, three separate lawyers represented the beneficiaries over the 31 months the Accused was involved. Hundreds and hundreds (perhaps thousands) of dollars in attorney fees were incurred on behalf of the beneficiaries and paid for by the estate. Despite an order to provide one, the Accused never provided the beneficiaries with a complete accounting. He filed an interpleader action, which all lawyers who testified or wrote on the issue indicated was unnecessary. He disallowed legitimate claims of the State of Oregon in the small estate matter, refused to seriously consider settlement of those claims, and then told a circuit court judge in open court that he had not denied any claim against the estate. He directed his legal assistant to draft a special power of attorney for Michael Aiello to sign so his wife, Trudy Brady-Aiello, could handle all estate matters, reviewed the special power of attorney, billed for his time, and then refused to honor the special power of attorney. He was rude, obstreperous and evasive in his deposition. His answers rose to the level of misrepresentation. He frequently responded to questions by saying he could not answer without looking at his file, but had taken steps to make the file unavailable at the time of his deposition. At the deposition of his legal assistant and office manager, he directed her not to review the file despite a subpoena duces...