In Re Complaint as to the Conduct of Hendrick

208 P.3d 488, 346 Or. 98, 2009 Ore. LEXIS 19

• Court: Oregon Supreme Court
• Decided: April 2, 2009
• Docket: OSB 06-110; SC S056041
• Status: Published

Opinions

PER CURIAM

The issues in this lawyer disciplinary proceeding are whether the Oregon State Bar (Bar) committed a procedural error in connection with the accused’s disciplinary proceeding and, if it did, whether the remedy for such an error is dismissal of the charges against the accused. For the reasons that follow, we conclude that the Bar did commit a procedural error, but that the appropriate remedy is to remand the case for a hearing before a new trial panel.

In October 2006, the Bar filed a complaint against R. Kevin Hendrick (the accused), charging him with various violations of the Rules of Professional Conduct (RPC). In January 2007, the Disciplinary Board appointed a trial panel to hear the Bar’s case against the accused. The accused and the Bar each made a peremptory challenge to a member of the trial panel pursuant to Bar Rule of Procedure (BR) 2.4(g), set out post 346 Or at 103; in each instance, the Disciplinary Board replaced the challenged member. After the replacement trial panel members were appointed, the hearing was scheduled for July 24 - 25, 2007.

On July 10, 2007, the Bar sent a letter to the accused’s lawyer explaining that, before the hearing, it intended to deliver to the accused and to the trial panel notebooks that contained the exhibits on which the Bar intended to rely at the hearing. The Bar requested that the accused review the exhibits and notify it of any objections that the accused might have. The accused did not make any objection to that procedure at that time. On July 17, 2007, the Bar sent the accused and the trial panel a copy of its trial memorandum. In the cover letter accompanying that document, the Bar informed the trial panel that it would be providing the trial panel and the accused with the notebook of proposed exhibits before the hearing, and again asked the accused’s lawyer to notify it of any objections that the accused might have to any of those exhibits. Again, the accused offered no objection either to the delivery of the trial memorandum or to the Bar’s plan to deliver its proposed exhibits to the trial panel in advance of the hearing. On July 19, 2007, the Bar hand-delivered the exhibit notebooks to the trial panel and to the accused. Again, the accused did not object.

On. July 24, 2007, the first day of the hearing, the accused filed a motion to dismiss the charges, claiming that the Bar’s early delivery of the exhibit notebooks constituted an improper ex parte communication with the trial panel. The trial panel denied the accused’s motion, asserting that the communication was not ex parte because the Bar had provided the accused with the same documents, at the same time, as it had the trial panel. The panel also noted that the accused had had advance notice of the Bar’s intent to serve the exhibit notebooks and had not objected.

The hearing proceeded. At some point, a document was introduced into evidence that revealed to one of the trial panel members that she had opposed the accused in another, possibly related, matter. After a brief conversation off the record involving Bar counsel, the accused, and the accused’s counsel about the possible conflict, the parties elected not to proceed with the existing trial panel. The trial panel chairperson closed the hearing and dismissed the trial panel, announcing that “a new panel needs to be appointed.”

In August 2007, the Disciplinary Board appointed a new trial panel. The new panel did not include any of the former panel members. Five days later, the accused served notice that he intended to challenge peremptorily one of the new trial panel members. The Bar objected, noting that the accused previously had exercised a peremptory challenge to a member of the former trial panel and asserting that, under the relevant Bar rule, the accused was not entitled to an additional peremptory challenge. The accused responded that the appointment of a new trial panel entitled him to a new peremptory challenge. The Disciplinary Board chairperson rejected the accused’s argument, disallowed the peremptory challenge, and notified the parties that a panel consisting of the three members appointed in August 2007 would hear the case.

A hearing before the new trial panel was scheduled for February 2008. This time, the Bar did not distribute its exhibit notebooks in advance and the new trial panel did not see the exhibits until the trial date. The hearing proceeded. On March 31, 2008, the panel issued its opinion, which was adverse to the accused in some respects. The accused then sought review by this court pursuant to ORS 9.536(1) and BR 10.1.

On review, the accused does not raise directly any issue concerning the substance of the trial panel’s decision. Instead, the accused argues that two alleged procedural errors by the trial panel so deprived him of important procedural rights that this court should dismiss the entire disciplinary action against him. The accused contends, first, that the Bar violated his due process rights by engaging in ex parte contacts with the first trial panel and, therefore, the first trial panel should have dismissed the charges against him. Second, the accused argues that he was improperly denied the right to exercise a peremptory challenge to a member of the second trial panel and, therefore, this court should dismiss the charges against him. As we shall explain, we find no merit in the accused’s first claim, but some merit in the second.

With respect to the accused’s first argument (concerning the Bar’s allegedly improper ex parte communications with the first trial panel), the accused argues at some length why he thinks that the Bar’s conduct in delivering its exhibits to the trial panel in advance of the disciplinary proceeding violated the Bar’s rules for the conduct of such proceedings and why ex parte communications with a factfinder are not permissible. However, in making those arguments, the accused neglects several key points, any one of which is fatal to his position. We discuss fully only the most fundamental one.

That fundamental point is that the Bar’s communications with the trial panel were not ex parte. Black’s Law Dictionary defines the phrase ex parte as follows: “Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief.” Black’s Law Dictionary 616 (8th ed 2004). Thus, an essential feature of an ex parte communication is that it is made without notice to the opposing party. Here, documents attached to the accused’s own opening brief show that the Bar fully apprised the accused of its intent to provide the trial panel with an advance copy of its exhibits and that, when it did so, it also provided the accused with copies of everything that it gave the trial panel. The Bar did not engage in ex parte communications with the trial panel. The accused’s argument in that respect is not well taken.¹

The accused’s second argument is that the regional chairperson in charge of ruling on challenges to members of trial panels erred in failing to permit him under BR 2.4(g) to exercise a peremptory challenge to a member of the second trial panel, that the error was prejudicial, and that the charges against him therefore should be dismissed. We set out certain details of the trial panel appointment process to explain our analysis of the accused’s argument.

The Bar’s Disciplinary Board consists of a state chairperson, six regional chairpersons, and at least six additional members from each of the regions. BR 2.4(a). When the Bar files a formal complaint and Bar Counsel notifies the Disciplinary Board of that filing, BR 4.1(a), the regional chairperson “appoint[s] a trial panel from the members of the regional panel and a chairperson thereof.” BR 2.4(f)(1).

Once “a trial panel” has been appointed, both the accused and the Bar may, under BR 2.4(g), challenge the participation of members of that trial panel. That section is at the heart of our inquiry. It provides, in part:

“The Bar and an accused * * * shall be entitled to one peremptory challenge and an unlimited number of challenges for cause as may arise under the Code of Judicial Conduct or these rules. Any such challenge shall be filed in writing within seven days of written notice of an appointment of a trial panel with the Disciplinary Board Clerk, with copies to the regional chairperson for disciplinary proceedings * * *. Challenges for cause shall state the reason for the challenge. The written ruling on the challenge shall be filed with the Disciplinary Board Clerk, and the regional chairperson * * * shall serve copies of the ruling on all parties. These provisions shall apply to all substitute appointments, except that neither the Bar nor the accused shall have more than [one] peremptory challenge. * *

The accused concedes that the rule, read in isolation, is silent as to whether the “one peremptory challenge” limitation in BR 2.4(g) applies to each appointed trial panel, when two or more trial panels have been appointed serially, or, instead, applies to the case as a whole. But, he argues, when the rule is read in context with BR 2.4(h), which directs the Disciplinary Board Clerk to “mail to the trial panel finally selected” a copy of all pleadings, and then directs the trial panel chairperson promptly to select a date and place for the hearing, it becomes clear that the rule applies to each appointed trial panel. The Bar, on the other hand, argues that BR 2.4(g) is not silent on the matter because it states specifically that its provisions concerning challenges “shall apply to all substitute appointments, except that neither the Bar nor the accused shall have more than [one] peremptory challenge.” The Bar argues that the second panel was a “substitute appointment (Tor cause’) of all members of the first trial panel.” (Emphasis in original.) And, the Bar explains, BR 2.4(g) specifically provides that, no matter how many substitute appointments are made, each side may exercise only one peremptory challenge.

We agree with the accused that BR 2.4(g) does not clearly specify whether the allocation of one peremptory challenge per side applies to the case as a whole or to each separate appointment of a complete trial panel, in cases in which separate, successive trial panels are appointed. On the other hand, we agree with the Bar that the wording in BR 2.4(g) on which it relies could, at least when read in isolation, justify the outcome that the Bar seeks. But we do not think that it is appropriate to read the wording on which the Bar relies in that way.

The reason that we do not find the wording on which the Bar relies dispositive is that other wording of the rule supports a contrary conclusion. The right to a peremptory challenge does not arise until “a trial panel” has been appointed. BR 2.4(g) specifies that “[a]ny such challenges shall be filed in writing within seven days of written notice of an appointment of a trial panel” (Emphasis added.) The emphasized wording just as easily could be read to mean “any” trial panel (the accused’s reading) as it could be read to mean “the one and only” trial panel (as the Bar would have it). Thus, both parties have legitimate — but hardly conclusive — arguments to support their positions.

As noted, the Bar argues that there is separate contextual support for its view in this further provision of BR 2.4(g): “These provisions shall apply to all substitute appointments, except that neither the Bar nor an accused * * * shall have more than [one] peremptory challenge.” (Emphasis added.) The Bar argues, in effect, that the second trial panel was a “substitute” for the first, so that the accused is foreclosed from making a peremptory challenge to any member of the second trial panel. The accused responds that the reference to “substitute appointments” in the rule is a reference to the replacement of a member of an existing trial panel, i.e., that the wording is intended to make it clear that the right to challenge a member of a trial panel includes the right to challenge a substitute member, if the challenging party has not already exercised its peremptory challenge by the time that the substitute panel member is appointed.

In interpreting a Bar rule, this court looks to the wording of the rule, read in context. See In re Haws, 310 Or 741, 746-48, 801 P2d 818 (1990) (using that methodology to interpret disciplinary rule, focusing on meaning of rule’s key words). Nothing in BR 2.4(g) tells us whether a “substitute appointment” refers to appointment of persons to replace individual members of a particular trial panel or, instead, includes the more sweeping exercise of authority to appoint a trial panel that is new and different in toto from an earlier panel. No contextual or other clues resolve the ambiguity. Lacking any other source to assist us, we look to the purposes of the right to make a peremptory challenge.

The right is not a constitutional one. Due process does not require that the Bar make peremptory challenges— as opposed to challenges for cause — available at all. Instead, like other procedural trial rights, the right to exercise a peremptory challenge is intended to foster a sense of confidence in the system by those who are subject to disciplinary proceedings. Allowing an accused lawyer to remove a member of a new, separately appointed trial panel by peremptory challenge would advance that purpose. As this case developed, the accused exercised his right to a peremptory challenge before the first trial panel with the expectation that he at least had been able to reduce the known members of the trial panel to the two persons out of the original three whom he thought were most likely to give him a fair hearing. With the total change of panels, however, that assurance was lost— the accused faced three different people and was powerless to remove any of them, in the absence of cause. Leaving an accused lawyer in that position does not further the goals that are fostered by the right to make peremptory challenges.

We view the accused’s position as analogous to that of a criminal defendant in a jury trial who has exercised his available peremptory challenges, but then loses the benefit of those challenges when the entire jury is dismissed due to a mistrial. We do not believe that anyone questions such a defendant’s right thereafter to exercise peremptory challenges during the selection of a new jury panel. Still, the analogy on which we rely is useful, but not necessarily controlling, and the issue that we are addressing remains a close one. Ultimately, however, we are persuaded by a combination of the analogy that we have noted and another, perhaps even more persuasive consideration. That consideration is the nature of this kind of case, and of our relationship to it.

In Bar disciplinary proceedings, the Bar serves as a surrogate for this court. That is, it investigates and (where it appears appropriate) prosecutes possible disciplinary violations, with a view to assisting this court in ensuring that practicing members of the Bar behave in an ethical manner. This court, if it were performing that function itself, would make every attempt to see to it that, whatever the outcome, an accused lawyer would think that he or she was treated fairly in the process. We read the Bar Rules as promoting that same goal and, as we have explained, we view the right to a peremptory challenge to be a part of that effort. If it were our own rule, we would read it to permit a new peremptory challenge if an entirely new panel were summoned, because reading the rule in that way would foster a sense of fairness in the system. We take that same view respecting our surrogate — the Bar. We hold that the Disciplinary Board chairperson erred in denying the accused the right to exercise a peremptory challenge to one of the members of the second trial panel. We turn to a consideration of the remedy, if any, to which the accused is entitled in light of that error.

In an ordinary lawyer disciplinary proceeding, this court performs a de novo review of the facts respecting the charges against the accused lawyer and then either adopts, modifies, or rejects the decision of the trial panel. BR 10.6. Thus, it could be argued that any error respecting the composition of the trial panel technically would be “cured” by our separate review of the record. Indeed, that is the view adopted by the dissent, and it has some force. In this case, however, the accused’s case was not heard by a properly constituted trial panel: One person whom the accused was entitled to have removed nonetheless participated. To use another analogy, the accused’s position is analogous to that of a party to a circuit court case who timely has made a motion for a change of judge, but the challenged judge unaccountably declines to step aside. In such circumstances, we think that all would agree that the issue is not whether the resisting judge can be (or is, or has been) fair. Instead, the issue is whether the objecting party must accept an adverse outcome if that judge tries the case. As to that issue, we think that the party’s right to a second trial before a different judge follows from the nature of the right itself. And, if the trial panel was not properly constituted, there is no way to know whether a properly constituted trial panel would have created the same record, made the same rulings, or construed the evidence in the same way, much less reached the same conclusions that this one did.

Finally, and in addition to the foregoing, we note that, were we simply to exercise our de novo review authority and decide the accused’s case on the merits notwithstanding our conclusion that the accused was denied a procedural right guaranteed by the Bar’s rules, his ability to exercise that right would be profoundly undercut. Put differently, if we were to decide that this court’s de novo review of decisions of trial panels means that, as a matter of law, an accused lawyer is not prejudiced by the denial of one or more procedural rights during the course of a disciplinary proceeding, no accused lawyer’s procedural “rights” have any certain meaning — de novo review may trump any of them. We decline to take that view. The accused is entitled to some sort of relief.²

That said, however, we reject the accused’s argument that the appropriate remedy for this violation of his procedural right is to dismiss the charges against him. This error — like most others — can be cured fully by affording the accused a new hearing at which he may (if he so chooses) exercise his right peremptorily to remove one trial panel member. We therefore remand the case to the Disciplinary Board for the appointment of a new trial panel to hear the charges against the accused.

The case is remanded to the Disciplinary Board for the appointment of a new trial panel to hear the charges against the accused.

1 The accused’s argument also fails because the Bar’s communication was to a separate trial panel that did not decide his case.

2 The dissent’s opposing view relies heavily on In re Paulson, 341 Or 542, 145 P3d 171 (2006), but that reliance is misplaced. Paulson was a case in which the accused, in a scattershot argument, accepted the idea that the members of his trial panel might be objective and honorable, but nonetheless argued that any decision that they made should not be sustained because they were “hand picked” by the hierarchy of the Bar and that hierarchy — in the accused’s view — was biased against him. This court there suggested that its de novo review authority was a bulwark against the problem that the accused described. Id. at 546. Here, however, the accused has an actual right — not simply a generalized complaint based on dark suspicion — to have a panel member removed. Vindication of that right cures the problem. Where, as here, there is a path that we can follow that vindicates a clear right, it is that path that we shall follow.