In re Weidner

883 P.2d 1293, 320 Or. 336, 1994 Ore. LEXIS 109
CourtOregon Supreme Court
DecidedNovember 17, 1994
DocketOSB 91-124; SC S36671
StatusPublished
Cited by2 cases

This text of 883 P.2d 1293 (In re Weidner) 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 Weidner, 883 P.2d 1293, 320 Or. 336, 1994 Ore. LEXIS 109 (Or. 1994).

Opinion

PER CURIAM

In this Bar disciplinary case, a trial panel found the accused guilty of numerous violations of criminal statutes and of 19 violations of disciplinary rules. The trial panel’s decision was disbarment.1 Under ORS 9.536(2), review by this court is automatic. Review is conducted de novo under ORS 9.536(3).

The accused has raised various defenses to the Bar’s charges of disciplinary misconduct contained in its amended complaint against the accused. The accused relies on a general defense of “necessity.” He does not, however, apply that defense to the Gannon Estate charges. Therefore, before considering the general defense of necessity, we will determine whether the Bar has proven its charges related to that estate.

GANNON ESTATE

The accused drafted a will that left Mr. Gannon’s estate to a minor political party in California but that expressly disinherited Gannon’s children. After Mr. Gan-non’s death, the accused was appointed personal representative and also served as lawyer for the personal representative of that estate. As lawyer, the accused paid himself $950 for estate attorney fees from the estate without applying to the probate court or obtaining an order from that court, as required by ORS 116.183.

The accused also withdrew $14,000 of the Gannon Estate’s funds to pay himself for various services that he had performed prior to Mr. Gannon’s death. The accused did not file a claim in the estate and did not observe the procedures applicable to a claim before paying himself.2 Although the [339]*339accused purported to pay himself for legal services at hourly rates appropriate for legal work, many of the services that the accused has enumerated to justify the $14,000 payment are not legal services but instead are in the nature of companionship, e.g., spending time with the decedent and taking him various places. After the accused paid himself, Gannon’s adult children successfully contested the will in probate court. In 1990, that court required repayment to the estate of a portion of the improper $14,000 payment that the accused made to himself.

The accused does not dispute the foregoing facts. He contends, however, that the defense of laches prevents the Bar from bringing a complaint against him for this conduct in 1986 and 1987. He claims that the defense applies to this disciplinary proceeding, and that the time delay between the events and the filing of the complaint in 1993 is by itself sufficient to establish the defense.

In Ellis v. Roberts, 302 Or 6, 10, 725 P2d 886 (1986), this court stated three elements that must be present before laches will apply:

“The elements of laches are [1] delay by a party, [2] with knowledge of relevant facts under which it could have acted earlier, [3] to the substantial prejudice of an opposing party.”

In Stephan v. Equitable S & L Assn., 268 Or 544, 569, 522 P2d 478 (1974), this court held:

“In order to constitute laches there must have been full knowledge of all of the facts, concurring with a delay for an unreasonable length of time, and laches does not start to run until such knowledge is shown to exist. Wills v. Nehalem Coal Co., 52 Or 70, 89, 96 P 528 (1908); Kelly v. Tracy, 209 Or 153, 172, 305 P2d 411 (1956). In addition, the delay must result in substantial prejudice to the defendant to the extent that it would be inequitable to afford the relief sought against the party asserting laches as a defense. Dahlhammer and Roelfs v. Schneider Exec., 197 Or 478, 498, 252 P2d 807 (1953); Hanns v. Hanns, 246 Or 282, 305, 423 P2d 499 (1967).”

[340]*340See also In re Morrow, 303 Or 102, 106, 734 P2d 867 (1987) (In a Bar disciplinary case, “lengthy delay from the accused’s conduct to the filing of charges [without prejudice] is not a defense but bears on the proper sanction.”).

No prejudice to accused is alleged here, nor is proof of any prejudice found in the record. We, therefore, do not need to decide whether laches can ever be a defense to a disciplinary case. The defense of laches is not available to the accused in this case even if we assume, without deciding, that it might be available in some other disciplinary case where all three required elements are present.3

The accused also seeks to excuse his conduct of taking money from the estate’s assets without first making and presenting a claim, indicating that he was not familiar with probate procedure. He pleads ignorance of the requirement that a claim had to be made or that, as to estate lawyer fees, prior approval by the court was statutorily required before payment.

The Bar alleges that the foregoing conduct violates DR 1-102CAX3) and (4) and DR 2-106(A). DR 1-102(A)(2), (3), and (4) provide:

“(A) It is professional misconduct for a lawyer to:
‡ ‡ $
“(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;4
“(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
“ (4) Engage in conduct that is prejudicial to the administration of justice!.]”

DR 2-106(A) provides in part:

“A lawyer shall not * * * charge or collect an illegal or clearly excessive fee.”

[341]*341We conclude that clear and convincing evidence proves that the accused violated DR 1-102(A)(3) and (4) and DR 2-106(A). At the time of violation of the statutory requirements, the accused had practiced law for almost two decades. We do not credit his claim of ignorance. The pertinent statutes are plain and easy to find. The accused must have known that he was bypassing the statutes and thereby violating them at the time that he took $14,000 from the estate for his own benefit. Moreover, when he billed the estate at legal service rates for services that turned out not to be professional services, the accused engaged in misrepresentation and collected an excessive fee.

NECESSITY DEFENSE

The accused attempts to avoid the legal effect of his conduct by interposing in this Bar disciplinary proceeding the defense of “necessity,” sometimes known as the “choice of evils.” That defense is set forth in the criminal statutes.5

The accused alleges, as to all causes of complaint except the Gannon Estate matter, that his conduct is justified under the defense of “necessity.” The accused states his defense as follows:

“Excludingthe Gannon estate matter, every action taken by the accused has been absolutely necessary to recover for the accused[’s] client[s’] property shamelessly stolen from those clients by the attorneys, judges and sheriff deputies named in the Third Party Complaint on file.”

He also alleges:

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Related

In Re Complaint as to Conduct of Martin
970 P.2d 638 (Oregon Supreme Court, 1998)
In Re Complaint as to the Conduct of Altstatt
897 P.2d 1164 (Oregon Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
883 P.2d 1293, 320 Or. 336, 1994 Ore. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-weidner-or-1994.