In re Maurer

431 P.3d 410, 364 Or. 190
CourtOregon Supreme Court
DecidedDecember 13, 2018
DocketS064901
StatusPublished
Cited by6 cases

This text of 431 P.3d 410 (In re Maurer) 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 Maurer, 431 P.3d 410, 364 Or. 190 (Or. 2018).

Opinion

PER CURIAM

**191In this lawyer discipline case, the Oregon State Bar charged Steven L. Maurer, a retired judge who is now a practicing lawyer, with violating two disciplinary rules: (1) RPC 1.12(a), which prohibits a lawyer from representing *412a person in connection with a matter in which the lawyer participated personally and substantially as a judge without the informed written consent of all parties; and (2) RPC 8.4(a)(4), which prohibits conduct prejudicial to the administration of justice. A trial panel of the Disciplinary Board conducted a hearing and found that respondent had not committed the charged offenses, because the proceeding in which he represented his client as a lawyer was not the same matter in which he had participated as a judge. For the reasons that follow, we find that respondent's conduct violated RPC 1.12(a), that it did not violate RPC 8.4(a)(4), and that the appropriate sanction for respondent's misconduct is a 30-day suspension from the practice of law.

We review decisions of the trial panel de novo . ORS 9.536(2) ; BR 10.6. We find the following facts by clear and convincing evidence. BR 5.2 (Bar has burden of establishing alleged misconduct by clear and convincing evidence).

I. FACTUAL OVERVIEW

From 2007 to 2008, respondent, then the Presiding Judge of the Clackamas County Circuit Court, presided over the dissolution of the marriage of husband and wife.1 The dissolution proceeding was acrimonious, and, at one point, wife accused husband of sexually abusing the couple's daughter. She did not provide proof of that allegation, and DHS determined that the allegation was unfounded. Respondent agreed and ordered wife to undergo a mental health evaluation and treatment. Ultimately, however, respondent issued a general judgment in September 2008, ordering the couple's daughter to be placed in wife's legal and physical custody. The judgment included a parenting plan that provided for regular, consistent, unsupervised visitation with husband **192and included various conditions. Respondent later issued orders in a modification proceeding between the parties in 2011.

Respondent retired from the bench in February 2013 and returned to private practice in Lake Oswego.

In February 2014, wife and husband appeared in Clackamas County Circuit Court before Judge Anderly to address wife's concern that the daughter's pet allergies were inflamed during her visitation with husband. Both wife and husband were unrepresented in that proceeding. At the conclusion of the hearing, Judge Anderly issued an order stating that "both parents shall immediately take action to reduce and eliminate the child's exposure to dogs and cats when she is in their care."

In April 2015, wife moved pro se for an order requiring husband to show cause why he should not be held in contempt for failing to comply with the February 2014 order. Wife alleged, among other things, that husband still had a cat that was causing the daughter to have allergic reactions. Wife also requested an order requiring husband to pay $80,000 for the child's loss of "health and well-being" and requiring previsitation home inspections to ensure there were no cats in or around the house. Husband retained respondent to represent him in that contempt proceeding.

In June 2015, respondent communicated with wife to reschedule the contempt hearing. He identified himself as a retired judge, but he did not mention that he was the judge who had presided over wife's and husband's dissolution proceeding. Respondent neither requested nor received consent in writing from wife to represent husband in the contempt matter. As respondent later explained to the Bar, he had determined that no such consent was required, because (1) the contempt matter was brought under ORS chapter 33 and was a separate matter from the dissolution proceeding brought under ORS chapter 107 seven years earlier; (2) the contempt matter involved new claims and issues presented in a different and narrow legal context; and (3) respondent had not been "personally and **193substantially" involved in the entry of the February 2014 order addressing the daughter's allergies. Respondent reasoned that there was nothing in the contempt proceeding that required reference to, or examination of, or evaluation of the *413prior dissolution proceeding. He also concluded that the judge presiding over the contempt proceeding would have no jurisdiction to revisit, reexamine, modify, or seek to enforce any part of respondent's decision as a judge in the underlying dissolution.

In August 2015, respondent appeared in court before Judge Darling on husband's behalf at the hearing on wife's contempt motion. Wife appeared pro se and testified on her own behalf. In respondent's opening remarks, he referred to "the original dissolution back in 2008." Respondent asserted that, in the dissolution proceeding, wife had made accusations of sexual abuse against husband that were determined by DHS and the court to have been unfounded. He argued that the present contempt proceeding was an "outgrowth of that," insofar as the allegation that the child was suffering allergic reactions to husband's cat was "simply made up" and no symptoms had ever been observed by husband, who is a physician. During those remarks, respondent did not mention that he was the judge who had determined that the sexual abuse allegations were unfounded.

Toward the end of wife's case, in which wife attempted to introduce photos taken on the daughter's mobile phone of cats in husband's home, the court engaged in an extended discussion with wife about the proper process for introducing documents into the record. That process included, among other things, handing the documents to respondent for his examination. Wife became upset during that colloquy and began to cry. The court ordered a brief recess for wife to regain her composure. After a few minutes, the hearing resumed.

At the conclusion of the hearing, the court determined that wife had failed to prove that husband was in contempt of the February 2014 order and granted husband's motion to dismiss the contempt charge. In so ruling, the court also rejected wife's request for the sanction of previsitation home inspections for the presence of cats, a remedy **194that would have required modification of the dissolution judgment, which was not properly before the court.2

II. THE CHARGES AGAINST RESPONDENT AND THE TRIAL PANEL'S DECISION

The Bar charged respondent with violating RPC 1.12 and RPC 8.4(a)(4). RPC 1.12(a) provides:

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Cite This Page — Counsel Stack

Bluebook (online)
431 P.3d 410, 364 Or. 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-maurer-or-2018.