Oregon State Bar Bulletin — FEBRUARY/MARCH 2007

Accusations Inflated
The June 2006 Bulletin summarized the stipulations in bar disciplinary case 05- I 54. Here are texts of some of them with my comments.

"‘Potential injury is harm … reasonably foreseeable at the time of the lawyer’s conduct…. (filing too late for the limitations period, the accused) might have (the adversary not to seek costs.)" That something "might have" happened falls short of reasonable forseeability. State v. Carter/Grant, 31 6 Or. 6, 13, 848 P.2d 599 (I 993) ("A fact that merely supports an inference that some other fact is possible-as one among the range of many other and different possibilities-does not support an inference that any specific one of the possible facts is itself probable.").

"The Accused caused potential injury to the profession. The profession is judged by the conduct of its members." Potential injury in this sense will be present in
every case.

"There are several aggravating factors in this case. There are multiple offenses and a pattern of misconduct." According to the factual stipulations, the attorney failed to pursue the client’s case diligently or to respond to nags from court and arbitrator or to withdraw.

"Isolated incidents of ordinary negligence do not violate this rule; however, a course of negligent conduct does." In re Complaint of Bourcier, 325 Or 429, 433, 939 P.2d 604 (I 997). So the attorney committed neglect. However, the bar charged the neglect as three separate violations, then exacerbated its own overcharge by finding multiple offenses to be an aggravating factor, then exacerbated it again by finding a pattern of misconduct to be an aggravating factor. The bar’s determination to bury an attorney under cascading rewordings of a single accusation does not square with Oregon notions of justice. See
State v. Torres, 182 OrApp 156, 165,48 P3d 170 (2002) ("Because the conviction includes as an element the use of a weapon, that factor cannot operate as an enhancement factor.")

"There are several aggravating factors in this case…. The client was vulnerable in that she relied on the Accused to actively advance her objectives…." Every neglected client has relied on the lawyer. A factor present in every case is not an aggravating factor.

Though the attorney cooperated with the investigation, the bar puffed up its case with phantom potential injuries and factors necessarily present in every case. It charged a single course of conduct toward a single client as multiple violations, then based aggravation on its own charging decision. The bar has thus shown, first, that the facts of a violation matter less than its decisions to inflate accusations, and second, that cooperation invites that inflation.

Craig P. Colby,

Disciplinary counsel Jeff Sapiro responds:
In response to Craig Colby’s remarks about the disciplinary case summarized in the Bulletin last June, readers may be interested to know:

1. The case resolved by stipulation; the lawyer attested that each and every statement in the final stipulation was true and correct.

2. Far from being a case of simple or isolated neglect, the lawyer dropped the ball on a client’s legal matter over a period of 20 months, did not serve the defendant within the statute of limitations, failed to respond to numerous communications from opposing counsel, did not comply with the trial court’s directive to select an arbitrator, failed to respond to the client’s calls and letters, did not respond to requests from the arbitrator, did not timely file a response to a motion for summary judgment, and did not inform the
client that a money judgment was entered against the client. The lawyer stipulated that his actions constituted multiple offenses under ethics law and a pattern of misconduct, which it surely was.

3. This was not a corporate or sophisticated client, but a woman who was kicked out of her residential rental and was trying to get her security deposit back. Hence, the stipulation accurately referred to her as vulnerable.

4. The full text of the stipulation is available on the bar’s website here.

In Praise of Public Servants
Public officials pass from the scene all the time: They die, they retire, they are unceremoniously voted out of office (as Morris Udall famously quipped after his defeat for re-election to the House of Representatives, "The voters have spoken – the bastards"), sometimes without much notice or thanks. Chief Justice Carson’s retirement deserves both. His career demonstrates that a level head, personal integrity and a fundamental sense of decency are a pretty good prescription for the exercise of the discretion and authority that our democracy entrusts to its elected
officials. Add in a strong mind and a genuine commitment to the ideal of public service, and you end up with people like Gerald Ford and Wally Carson, and we are better for that.

Roy Pulvers,

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