In re Complaint as to Conduct of Hill

678 P.2d 1218, 296 Or. 622, 1984 Ore. LEXIS 1177
CourtOregon Supreme Court
DecidedMarch 20, 1984
DocketOSB 80-82, 81-78, 82-6; SC 29772
StatusPublished
Cited by2 cases

This text of 678 P.2d 1218 (In re Complaint as to Conduct of Hill) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Complaint as to Conduct of Hill, 678 P.2d 1218, 296 Or. 622, 1984 Ore. LEXIS 1177 (Or. 1984).

Opinion

PER CURIAM

In this disciplinary proceeding brought by the Oregon State Bar, the accused was charged by an amended complaint with eight separate causes of complaint ranging over a three-year period, involving four different clients and resulting in fourteen separate alleged violations of the Code of Professional Responsibility and one violation of statute. Personal service of the complaint, the amended complaint, and notice to answer were made on the accused in California. Notices reporting the appointment of the Trial Board and the date, time and place of the hearing on the amended complaint were mailed to the accused at the California address he gave to the Bar. Except for one letter containing a defective attempt to resign from the Bar, no communications were made by the accused to the Bar nor did he appear at the hearing.

On February 11, 1983, a hearing was held before the Trial Board at which time eight witnesses appeared and 22 exhibits were received. The Trial Board found that the accused violated two disciplinary rules, DR G-lOlIAXS)1 and DR 1-102(A)(4).2 The Trial Board also found that the accused violated ORS 9.480(3), now ORS 9.527(3), which permits disbarment when a member has wilfully disobeyed an order of the court requiring the member to do an act connected with the legal profession.3 The Trial Board found the evidence [625]*625insufficient to support the remaining accusations of the Bar. The Trial Board recommended disbarment of the accused. The Disciplinary Review Board first examined the circumstances relating to service upon the accused. Then, upon review of the facts of the case, the Disciplinary Review Board concurred in the findings of the Trial Board. In addition, the Disciplinary Review Board found that the accused was guilty of two other disciplinary rule violations. The Disciplinary Review Board recommended disbarment of the accused.

On Petition for Review by the Bar, this matter is before this court on the record. Neither briefs nor arguments have been submitted by the Bar or the accused. We shall discuss the eight causes of the amended complaint in the order alleged by the Bar.

CAUSES 1, 2, and 3

A non-resident property owner, Ms. McVeigh, after receiving a demand letter claiming damages in a residential landlord-tenant dispute, retained the accused to represent her and paid him a retainer fee of $500. Subsequently, McVeigh was served with summons and complaint in the same matter in the District Court for Washington County, and so informed the accused. McVeigh received notification that the trial would be held on April 3, 1980, but was told by the accused that her presence at the trial would not be necessary. The accused attended the trial and judgment was entered against McVeigh for $445.16 damages, plus $800.00 attorney fees and $47.75 in costs. Some eight weeks later, McVeigh learned for the first time that a judgment had been awarded against her and she then was advised by the accused that he had filed an appeal. McVeigh heard nothing further from the accused and, upon later inquiry to the Clerk of the District Court, learned that no appeal had been filed. McVeigh then paid the judgment in full.

[626]*626Based on these facts, the Bar charged in the first cause that the accused had failed to prepare adequately for trial, alleging violations of DR 6-101(A)(2) and (3).4

In the second cause of complaint, the Bar alleged that the accused violated the disciplinary rules in his post-trial conduct by failing to file appropriate motions, failing to appeal, and failing to keep his client informed. The Bar specified violations of DR 6-101(A)(3),5 DR 7-101(A)(l) and (3).6

In the third cause, the Bar charged the accused with subsequently misleading his client by assuring her that an appeal had been filed and would be heard when both assertions were false. The Bar charged that the accused violated DR 1-102(A)(4).7

After hearing, the Trial Board found the accused guilty of violating DR 6-101(A)(3), apparently as charged in the second cause of complaint, for neglecting a legal matter [627]*627entrusted to him. Likewise, upon review, the Disciplinary Review Board concluded that the accused had violated that disciplinary rule. We agree. Neither of the lower tribunals addressed the allegation that the accused handled a legal matter without preparation adequate in the circumstances (DR 6-101 (A) (2)) or that he neglected the client’s pre-trial case (DR 6-101(A)(3)). Presumably, they, as we, could not determine from the record whether the accused failed, in fact, to prepare adequately or neglected the matter entrusted to him in the pre-trial phase of the case.

Although the Trial Board did not so find, the Disciplinary Review Board found that the accused engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. DR 1-102(A)(4). We conclude that, in falsely informing his client that an appeal had been taken and would be heard, the accused practiced deceit in misrepresenting the facts to his client.

The remaining two allegations by the Bar relating to this client were that the accused violated two disciplinary-rule provisions involving conduct prohibited by DR 7-101(A)(l) and (3). As we observed in two recent disciplinary cases, these rules require that the accused act intentionally in failing to seek the lawful objectives of his client and causing prejudice or damage to his client. In re Collier, 295 Or 320, 667 P2d 481 (1983); In re Hereford, 295 Or 604, 668 P2d 1217 (1983). The Trial Board did not address this issue specifically. The Disciplinary Review Board concluded, after correctly observing that the disciplinary rules require the acts to be intentional, that in the absence of evidence to the contrary, a conclusion that the acts were intentional is “reasonable and highly probable” and found the accused in violation of DR 7-101(A)(3). We disagree. As in In re Hereford, we conclude that there is not sufficient information in the record to make that determination. The Bar did not meet its burden of proof by clear and convincing evidence. See In re Thomas, 294 Or 505, 521, 659 P2d 960 (1983).

CAUSES 4 and 5

In these two causes, the accused was charged with failing to act competently, misrepresenting a set of facts, and intentionally prejudicing his client in an adoption proceeding. [628]*628No evidence was offered on these two causes and they were dismissed.

CAUSE 6

In June 1979, the accused received a check in the sum of $2,500 in settlement of a personal injury claim in behalf of his client, Abelson. The check was made payable to Abelson, the accused, and State Farm Mutual Automobile Insurance Company, the latter of whom had an interest in the settlement because of personal injury protection benefit payments (ORS 743.800 to 743.835) made to Abelson in the amount of $389.

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Related

In Re Complaint as to the Conduct of Willer
735 P.2d 594 (Oregon Supreme Court, 1987)
In Re Complaint as to the Conduct of Morrow
688 P.2d 820 (Oregon Supreme Court, 1984)

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Bluebook (online)
678 P.2d 1218, 296 Or. 622, 1984 Ore. LEXIS 1177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-complaint-as-to-conduct-of-hill-or-1984.