Filed: December 14, 2000

In Re:
Complaint as to the Conduct of
KENNETH MILES JAFFEE,

Accused.

En Banc

On review of the decisions of trial panels of the Disciplinary Board.

Submitted on the record and briefs April 14, 2000.

Jane E. Angus, Assistant Disciplinary Counsel, Oregon State Bar, Lake Oswego, and Richard D. Adams, Bar Counsel, Grants Pass, filed the briefs for the Oregon State Bar.

No appearance for accused.

PER CURIAM

The accused is disbarred, effective 60 days from the date of the filing of this decision.

PER CURIAM

These two lawyer discipline proceedings, which involve the same lawyer, have been combined for purposes of review and decision. The proceedings are before this court on briefs submitted by the Oregon State Bar and on the record made before two trial panels of the Disciplinary Board. See ORAP 11.25(3)(b) (permitting submission of matter to court on that basis when accused lawyer fails to file petition or brief within time allowed). In each proceeding, the trial panel determined that the accused had committed serious breaches of the disciplinary rules and that he should be disbarred. Because of the severity of that sanction, review by this court is automatic. BR 10.1. On de novo review, ORS 9.536(2), BR 10.6, we agree with the trial panels that the accused violated the disciplinary rules and that he should be disbarred.

The first proceeding against the accused arises out of an October 1998 formal complaint that alleged two unrelated causes of complaint. The second proceeding arises out of a July 1999 formal complaint that alleged two additional unrelated causes of complaint. We consider the four causes of complaint, and the episodes on which they are based, in turn.

The Bar alleged, in its October 1998 amended formal complaint, that the accused was suspended from the practice of law on April 11, 1997, for failure to make an installment payment to the Professional Liability Fund (PLF). The Bar further alleged that the accused performed legal services for certain designated clients during the ensuing period of suspension, i.e, between April 11, 1997, and May 1, 1997, and that, in doing so, the accused falsely represented to clients and courts that he was authorized to practice law. The Bar asserted that that conduct violated three disciplinary rules and one statute: (1) DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation); (2) DR 1-102(A)(4) (conduct prejudicial to the administration of justice); (3) DR 3-101(B) (lawyer shall not practice in jurisdiction when doing so would violate regulations of profession in that jurisdiction); and (4) ORS 9.160 (only active members of Bar may practice law and represent themselves as qualified to practice law).

On de novo review, we find that the Bar has established all four of the violations charged in connection with this episode by the requisite clear and convincing evidence. See BR 5.2 (setting that standard of proof). It is undisputed that the accused was suspended from the practice of law and that he practiced law during that period. In addition, and although the accused denied it, the evidence supports a conclusion that the accused was aware of the suspension at the time that it occurred. (1) We therefore find that the accused violated ORS 9.160, which provides that "no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar." We also find that, by continuing to practice law in Oregon after he was suspended, the accused violated DR 3-101(B), which provides that a lawyer "shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."

The accused also violated DR 1-102(a)(3), which provides that a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." "Misrepresentation," under that rule, can include an intentional failure to disclose a material fact. In re Hiller, 298 Or 526, 532, 694 P2d 540 (1985). We have noted in the past that a lawyer's eligibility to practice law is material in the context of an attorney-client relationship and that a lawyer who renders legal services to a client while intentionally failing to disclose his or her suspended status violates the rule. See In re Whipple, 320 Or 476, 487, 886 P2d 7 (1994) (illustrating rule). Under that precedent, the accused's conduct involved misrepresentation to the clients whom he purported to serve during the time that he was suspended. The accused also violated DR 1-102(A)(3) by implicitly representing to the courts before whom he appeared and to the opposing counsel against whom he appeared that he was eligible to practice law.

Finally, this court has held that a misrepresentation made by a lawyer to a court may be prejudicial to the administration of justice within the meaning of DR 1-102(A)(4). See In re McKee, 316 Or 114, 126, 849 P2d 509 (1993) (so stating). In that case, this court indicated, however, that such a misrepresentation must involve "prejudice," i.e., either (1) repeated conduct causing some harm to the administration of justice; or (2) a single act causing substantial harm to the administration of justice. Id. Here, the accused's conduct involved prejudice of the first sort, i.e., he repeatedly appeared before a number of courts and administrative bodies during his suspension. We agree with the Bar that the accused's conduct was prejudicial to the administration of justice and, therefore, violated DR 1-102(A)(4).

The Bar's second cause of complaint in its October 1998 amended formal complaint alleged:

"On or about September 13, 1991, judgment was entered in favor of the United States of America against the Accused in the amount of $13,625, in the matter of United States of America v. Kenneth M. Jaffee, Case No. 90-6431-HO (hereinafter, 'Court Action').

"On or about February 27, 1997, the court entered an order requiring the Accused to appear for a judgment debtor examination in the Court Action on April 28, 1997. The Accused was served in the manner provided by law and received a copy of the order.

"On or about April 25, 1997, the U.S. Attorney's Office contacted the Accused to determine if he would appear for the judgment debtor examination scheduled for April 28, 1997. The Accused advised that he did not plan to do so, but would try to provide the required documents and other information.

"As a result of the Accused's April 25, 1997, communication, the judgment debtor examination in the Court Action was rescheduled for July 14, 1997. The Accused was served with a copy of the Order Rescheduling the Judgment Debtor Examination on June 18, 1997. The Accused failed to produce the required documents and information and failed to appear as required by the court's order.

"On or about July 18, 1997, the court entered an order in the Court Action, requiring the Accused to appear on August 14, 1997, to show cause why a warrant for his arrest should not be issued and why he should not be held in contempt of court. The Accused was served with the Order to Show Cause on July 25, 1997. The Accused failed to appear and a warrant for his arrest was issued by the court.

"Between February 1997 and January 1998, the accused failed to produce documents and information as ordered by the court in the Court Action."

Because the accused did not respond to that second cause of complaint, the trial panel entered an order of default. For purposes of review, we deem the facts alleged in the Bar's amended complaint that pertain to the second cause of complaint to be true. See In re Bourcier, 322 Or 561, 564, 909 P2d 1234 (1996) (when accused does not answer and makes no other appearance, court deems facts alleged in Bar's formal complaint to be true).

The trial panel found that the accused's conduct violated DR 7-106(a) and DR 1-102(A)(4). We agree.

DR 7-106(a) provides:

"A lawyer shall not disregard or advise lawyer's client to disregard * * * a ruling of a tribunal made in the course of a proceeding[,] but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling."

The Bar's allegations show that the accused was aware that the United States District Court repeatedly had ordered him to appear and to produce certain information, and that he had not done so. By knowingly and intentionally disregarded several rulings of a court, the accused violated DR 7-106(A).

As noted, DR 1-102(A)(4) prohibits lawyers from engaging in conduct "prejudicial to the administration of justice." Conduct falls within that proscription if it causes harm either to the procedural functioning of a legal proceeding or to the substantive interests of a party in the proceeding. In re Haws, 310 Or 741, 746-47, 801 P2d 818 (1990). The conduct at issue caused substantial harm of both kinds. It placed an unnecessary burden on the judicial system -- so much so that the district court ultimately issued an order for the accused's arrest. It also harmed the substantive interests of the opposing party, the United States government, in that it forced the government to expend a great deal of time and energy investigating and collecting its judgment against the accused. The accused's conduct violated DR 1-102(A)(4).

The Bar's July 1999 formal complaint alleged that the accused was arrested on July 8, 1998, and subsequently was convicted on a charge of Interfering with a Peace Officer, a violation of the Medford Municipal Code. The trial panel found that the conduct that led to that arrest and conviction was professional misconduct under DR 1-102(A)(2). DR 1-102(A)(2) provides that it is professional misconduct to "[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law."

There is no question that the accused was convicted on December 4, 1998, of the offense of Interfering with a Peace Officer under the Medford Municipal Code