State ex rel. Oregon State Bar v. Wright

• Decision Date: 28 December 1977
• Citation: 573 P.2d 294,280 Or. 713
• Parties: STATE of Oregon ex rel. OREGON STATE BAR, Respondent, v. Robert J. WRIGHT, Appellant. . *
• Court: Oregon Supreme Court

Page 294

573 P.2d 294

280 Or. 713

STATE of Oregon ex rel. OREGON STATE BAR, Respondent, v. Robert J. WRIGHT, Appellant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Nov. 3, 1977.

Decided Dec. 28, 1977.

Robert J. Wright, Noti, argued the cause and filed a brief in pro per.

Paul D. Clayton, of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause and filed the brief for respondent.

TONGUE, Justice.

This is an appeal from an order finding defendant to be in willful contempt of a temporary injunction which restrained and enjoined defendant from engaging in the practice of law, including "furnishing legal advice," during the pendency of a suit for a permanent injunction to restrain defendant from engaging in the unauthorized practice of law. In that case, Oregon State Bar v. Wright, 280 Or. 693, 573 P.2d 283 (1977), this court today affirmed, with some modifications, the permanent injunction as entered by the trial court.

In defendant's separate appeal in these contempt proceedings it is contended, among other things, that "(t)he Court erred in its consideration of the evidence" in that there was insufficient evidence to support the order finding him to be in willful contempt of the temporary injunction.

That order is as follows:

"Defendant is found to be in willful contempt of the said Order dated April 22, 1976, in that the Defendant did furnish legal advice to Glen Chamberlain, et ux, in the matter of In the Conservatorship of Mary Smeed, case number 22920, and for such contempt the Defendant is hereby fined the sum of $300.00 to be paid on or before January 3, 1977." (Emphasis theirs)

This court has held that in a contempt proceeding for "disobedience of any lawful judgment, decree, order or process of the court," as provided by ORS 33.010(1)(e), there must be evidence sufficient to support a finding that such a violation was "willful" and that "punishment for civil contempt should be restricted to cases in which the violation of a court order is willful and with 'bad intent.' " See State of Oregon v. Yates, 208 Or. 491, 498-99, 302 P.2d 719, 722 (1956), and cases cited therein. See also State v. O'Malley, 248 Or. 601, 605, 435 P.2d 812 (1967), overruled on other grounds 255 Or. 544, 546, 469 P.2d 36 (1970).

After reviewing the record in this case, we are of the opinion that the evidence was insufficient to support a finding by the trial court that the violation by defendant of the previous order by that court was "willful and with bad intent."

On March 22, 1976, a complaint was filed by the Oregon State Bar in the Circuit Court for Linn County alleging that defendant was engaging in the unauthorized practice of law and praying for a decree permanently enjoining defendant from doing so. On the same date the Oregon State Bar filed a motion for an order requiring defendant to appear and show cause why he should not be temporarily enjoined from engaging in the practice of law during the pendency of that suit. On April 22, 1976, after a hearing on that motion, such a temporary injunction was entered enjoining defendant, among other things, from "furnishing legal advice" during the pendency of that case.

On October 21, 1976, one of the attorneys for the Oregon State Bar filed an affidavit attaching testimony of Mary Smeed and Emily Chamberlain In the Matter of the Conservatorship of Mary Smeed and stating the opinion that "there is sufficient basis for the Defendant to appear and show cause why he should not be held in contempt of the order entered on April 22, 1976." Such an order to appear and show cause was then entered and such a hearing was held on December 20, 1976.

At the hearing, in response to a question by defendant as to the basis upon which it was contended that defendant had engaged in the practice of law by "giving legal advice," the attorney for the Oregon State Bar made the following statement:

" * * * (T)he people are elderly, first of all. And he came to you for advice on a legal matter. They requested to get legal advice from you as to what they should do. You informed them that they should file a motion to quash in the case. And that in my opinion constitutes giving legal advice to them. You then in addition to that mailed, apparently, a form to Mr. Chamberlain showing him what type of form to use. And you discussed with them only a motion to quash. You then sent Mr. Chamberlain in effect as your own agent, so to speak, to the library, where he located apparently a motion. And prepared it and filed it. But you were the one that advised him as to what to do and what type of motion to file. Now, you're asking me these questions. And so therefore, I'll answer them. And in my opinion you advised them to file a particular type of motion, constitutes giving legal advice."

In support of that contention the Oregon State Bar offered the testimony of Emily Chamberlain and Glen Chamberlain. Emily Chamberlain testified that her sister, Mary Smeed, was in a nursing home; that proceedings had been filed to appoint a conservator for her sister and that neither she nor her sister wanted a conservator appointed.

Her husband, Glen Chamberlain, testified that he was then taking a "law course" from defendant to learn how to study law and go to the law library and study cases and that he had paid $150 to defendant for that course. There was also other evidence that defendant was then teaching a course in "self-representation," i. e., "how a person could represent himself in a court of law."

Mrs. Chamberlain testified that she and her husband went to see defendant because her husband had "searched law books and things" and "didn't know just how to put things into court"; and that she and her husband were friends of defendant and "wanted some advice from Mr. Wright as to how to handle it in court."

She also testified that upon going to see defendant he told them that there was an injunction against him prohibiting him from giving legal advice and that "he told us he couldn't help us. Only to tell us how to handle it. And we did the rest"; and "he advised us how to do it"; that his advice was "simply to show (her) husband where he could find the proper forms to use" and that he showed her husband "a form" which "he had used" and which was a motion to quash.

Mr. Chamberlain testified that when he and his wife went to see the defendant he told them that "he wouldn't be able to represent us or help us. And he told me a lot of books down here in the courthouse library. Go down and look at them." Mr. Chamberlain also testified that defendant "had a form there in his office that he showed you" and that it was a motion to quash and told them that "he had used it in the court * * * and the court had ruled in his favor. So he must have done something right" and that defendant gave that form to him, but told him that "I'd have to use my own words and my own language"; and that defendant showed him some form books and told him what books to look for in the law library, and to "look at these forms in the library down here. Make out my own thing." Mr. Chamberlain testified further that he went to the law library; that the advice from defendant "consisted primarily of showing (him) where to find the forms that (he) used"; and that defendant did not make any charge for that "conversation."

Plaintiff also offered in evidence a letter from defendant to Mr. Chamberlain stating that he was enclosing "a sample of what a motion to quash looks like * * *. Follow this form, and I am sure you will have no trouble in acting as your own...