Kraus, In re

CourtSupreme Court of Oregon
Writing for the CourtBefore DENECKE; PER CURIAM
Citation289 Or. 661,616 P.2d 1173
PartiesIn re Complaint as to the Conduct of Harry R. KRAUS, Accused. OSB 78-41; SC 26690.
Decision Date23 September 1980

Page 1173

616 P.2d 1173
289 Or. 661
In re Complaint as to the Conduct of Harry R. KRAUS, Accused.
OSB 78-41; SC 26690.
Supreme Court of Oregon.
Argued and Submitted Sept. 9, 1980.
Decided Sept. 23, 1980.

John D. Ryan, Portland, argued the cause and filed the brief for accused.

William M. Keller, Portland, argued the cause for the Oregon State Bar. With him on the brief was Jarvis B. Black, Portland.

[289 Or. 662] Before DENECKE, C. J., and TONGUE, HOWELL, LINDE, PETERSON and TANZER, JJ.

[289 Or. 663] PER CURIAM.

This is a disciplinary proceeding by the Oregon State Bar charging the Accused with (1) neglecting a legal matter entrusted to him by permitting a case to be dismissed for want of prosecution and with subsequently telling his client that the case had been set for trial, and (2) notarizing signatures purported to be those of that same client upon pleadings when, in fact, that client did not sign such pleadings and was not present when such signatures were notarized by the Accused. 1

The Trial Board found the Accused not guilty of the first charge, but guilty of the second charge and recommended a public reprimand. The Disciplinary Review Board adopted the findings of fact and conclusions by the Trial Board with one exception, which will be discussed, and also recommended a public reprimand.

This case was originally submitted on the record without briefs or oral argument. It was then noted by this court that in 1964 the Accused had been previously suspended from the practice of law for three years for conduct which also included neglect of a legal matter entrusted to him. In re Kraus, 238 Or. 482, 395 P.2d 446 (1964). Apparently the Trial Board and the Disciplinary Review Board were unaware of that previous disciplinary proceeding.

Page 1174

This court then suggested that in view of that fact the parties consider filing briefs in this case. It was then stipulated by the parties that the record in that previous proceeding be submitted to this court for it consideration in this case. Both parties then submitted both briefs and oral argument.

The First Charge.

In December 1971 the Accused prepared and filed in Multnomah County a complaint in an action [289 Or. 664] for breach of contract on behalf of Joe L. Wiese. The case was then transferred to Clackamas County. On January 8, 1974, in response to an order sustaining a motion to strike, the Accused prepared and filed an amended complaint, to which another motion to strike was made and allowed by order dated March 1, 1974. By that order plaintiff was granted 15 days in which to further plead.

On September 16, 1974, no further pleading having been filed by the Accused, the defendant filed a motion to dismiss the case for want of prosecution. A hearing on that motion was held on October 14, 1974, with the Accused being present. The motion was then overruled by order dated November 14, 1974, but with the condition that "if this case is not at issue within 30 days, said case shall be dismissed."

On that same day the Accused filed a second amended complaint. By letter dated November 13, 1974, the attorney for defendant wrote a letter to the Accused requesting information relating to plaintiff's claim for damages and stating that unless such information was received he would move again against one paragraph of the complaint. That letter also stated that the second amended complaint had realleged the same second cause of action as previously stricken and that unless the Accused responded within a reasonable time defendant would "prepare the necessary motions."

The Accused did not respond to that letter and, when no motion, answer or pleading was filed by defendant, did nothing to force the defendant to file an answer and did not move for a judgment by default. Indeed, it was candidly admitted by defendant that the case was "completely neglected by me."

On January 23, 1976, the case, together with a number of other cases, was dismissed by an order which recited that "each of the attorneys of record" had been "duly notified as provided by law by mailing a notice to his last known address more than 60 days prior to January 5, 1976, that unless some action was [289 Or. 665] taken on or before said date, the same would be dismissed for want of prosecution." The Accused testified that he had "searched," but had never seen such a card and that he did not learn that the case had been dismissed until he later received a telephone call from another attorney to whom Mr. Wiese, his client, had gone for advice.

Meanwhile, according to Mr. Wiese, on December 10, 1975, after being in Alaska for some time, he went to the office of the Accused "to find out what had happened, for him to bring me up to date on the matter," and was then "assured" by the Accused "that a trial date was imminent, he was just waiting for it to be assigned." Mr. Wiese also testified that in April 1976 he again talked with the Accused, who told him that "he had a trial date * * * on May 11th," and that shortly before that date he became concerned and, upon investigation, learned that the case had been dismissed.

The Accused testified, however, that he "never gave (Mr. Wiese) a trial date," but told him prior to April that "we should be able to get the matter heard by May" and that "again, I simply neglected to (sic) file after that."

The Accused was then sued for malpractice by Mr. Wiese and personally paid $5,123.97 for settlement of that case.

In finding the Accused not guilty on the first charge, the Trial Board, by "supplemental findings," found that although the Accused "knew or should have known that the case * * * was in imminent danger of being dismissed," it did "not believe that the Accused knowingly or willfully misrepresented the status of the case to his client."

Page 1175

The Trial Board also found that the Accused "did not properly handle the case for the client," and "readily admits that he was negligent * * *," but concluded that:

" * * * the negligent handling of the case is not the issue before it for the purposes of disciplinary action. [289 Or. 666] The gravamen of the issue is whether the conduct of the Accused, to-wit, knowingly misrepresenting the status of the case, was unethical. The testimony of the Client lacks credibility in this regard. The Trial Board does not believe that the Accused knowingly...

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11 practice notes
  • Conduct of Morin, In re
    • United States
    • Oregon Supreme Court
    • 27 Septiembre 1994
    ...814 P.2d 507 (1991) (recording a forged and falsely notarized deed violated former DR 1-102(A)(4) (current DR 1-102(A)(3))); In re Kraus, 289 Or. 661, 667-71, 616 P.2d 1173 (1980) (court suspended lawyer who notarized document signed outside his The accused engaged in a pattern of conduct d......
  • Conduct of Smith, In re
    • United States
    • Supreme Court of Oregon
    • 2 Diciembre 1981
    ...agree with both the Trial Board and the Disciplinary Review Board that Smith is guilty of the first cause of complaint. See, In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980); In re Simms, 284 Or. 37, 584 P.2d 766 (1978); In re Scott, 255 Or. 77, 464 P.2d 318 (1970); In re Walter, 247 Or. 13, ......
  • State Housing Council v. City of Lake Oswego
    • United States
    • Supreme Court of Oregon
    • 3 Noviembre 1981
    ...Such a lawyer would now be subject to discipline by this court for neglect of the affairs of his clients. See DR 6-101(A)(3); In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980), and In re English, 290 Or. 113, 618 P.2d 1275 In my view, the dismissal of this case on these grounds is improper and......
  • Conduct of Rudie, In re, No. OSB
    • United States
    • Supreme Court of Oregon
    • 19 Abril 1983
    ...the Disciplinary Review Board should not have been concerned with that prior misconduct. In this respect he is mistaken. See, In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980). This court regards a record of previous unprofessional conduct of a similar nature to be a matter of The accused in t......
  • Request a trial to view additional results
11 cases
  • Conduct of Morin, In re
    • United States
    • Oregon Supreme Court
    • 27 Septiembre 1994
    ...814 P.2d 507 (1991) (recording a forged and falsely notarized deed violated former DR 1-102(A)(4) (current DR 1-102(A)(3))); In re Kraus, 289 Or. 661, 667-71, 616 P.2d 1173 (1980) (court suspended lawyer who notarized document signed outside his The accused engaged in a pattern of conduct d......
  • Conduct of Smith, In re
    • United States
    • Supreme Court of Oregon
    • 2 Diciembre 1981
    ...agree with both the Trial Board and the Disciplinary Review Board that Smith is guilty of the first cause of complaint. See, In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980); In re Simms, 284 Or. 37, 584 P.2d 766 (1978); In re Scott, 255 Or. 77, 464 P.2d 318 (1970); In re Walter, 247 Or. 13, ......
  • State Housing Council v. City of Lake Oswego
    • United States
    • Supreme Court of Oregon
    • 3 Noviembre 1981
    ...Such a lawyer would now be subject to discipline by this court for neglect of the affairs of his clients. See DR 6-101(A)(3); In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980), and In re English, 290 Or. 113, 618 P.2d 1275 In my view, the dismissal of this case on these grounds is improper and......
  • Conduct of Rudie, In re, No. OSB
    • United States
    • Supreme Court of Oregon
    • 19 Abril 1983
    ...the Disciplinary Review Board should not have been concerned with that prior misconduct. In this respect he is mistaken. See, In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980). This court regards a record of previous unprofessional conduct of a similar nature to be a matter of The accused in t......
  • Request a trial to view additional results

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