Filed: July 11, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of

DAVID B. HARRIS,

Accused.

(OSB 99-37, 99-62 to 99-64, 99-114 to 99-117; SC S46572)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted March 15, 2002.

David B. Harris, Portland, argued the cause and filed briefs in propria persona.

W. Eugene Hallman, Hallman & Dretke, Pendleton, also argued the cause and filed briefs for the accused.

Steven W. Seymour, Samuels Yoelin Kantor, Portland, argued the cause for the Oregon State Bar. With him on the brief was Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego.

PER CURIAM

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

In this lawyer disciplinary proceeding, we address the question left open in In re Devers, 328 Or 230, 233-34, 974 P2d 191 (1999), whether a lawyer has a constitutional right to appointed counsel in a disciplinary proceeding. We conclude that an accused lawyer has no such constitutional right, and, further, we decline to require the appointment of counsel under our general authority over lawyer disciplinary matters. Also, we agree with the decision of the trial panel of the Disciplinary Board to disbar the accused.

We begin with a review of the proceedings below and in this court. In eight separate cases, which were consolidated for proceedings before the trial panel, the Oregon State Bar (Bar) brought 17 causes of complaint alleging a total of 32 violations of nine different disciplinary rules and ORS 9.527(4) (willful deceit or misconduct in legal profession) by the accused. A full recitation of the facts and violations that the Bar alleged is unnecessary. They include multiple instances of failure to complete work on behalf of clients; repeated misrepresentations to judges, one of which resulted in a conviction for criminal contempt of court; misrepresentations to the State Court Administrator in connection with a fee request in a court-appointed criminal matter; filing a false police report; violation of probation conditions, including use of illegal drugs; failure to cooperate with the Bar's investigation; and practicing law when the accused had been suspended.

The Bar filed its first formal complaint against the accused on June 21, 1999, and the accused accepted service of the complaint on July 3, 1999. (1) In the proceedings before the trial panel, the accused missed multiple deadlines for filing pleadings and responding to discovery requests and failed to attend various hearings and depositions. On two occasions, the trial panel issued orders of default because of the accused's failure to comply with procedural rules, and the trial panel later set aside each default order based on a motion by the accused. After the accused again failed to produce documents that the Bar had requested and failed to appear for his deposition, the Bar moved for sanctions. As a sanction, the trial panel struck the accused's answer and deemed the allegations in the Bar's amended complaint to be true, as it was authorized to do under Bar Rules of Procedure (BR) 4.5(e) and 5.8(a).

The trial panel set an April 5, 2000, date for a hearing on the sanction to be imposed on the accused for the violations alleged in the amended complaint and held the hearing on that date. The accused did not appear at the hearing or communicate with the Bar or the trial panel before the hearing. The trial panel took the matter under advisement. On July 19, 2000, the accused filed a motion asking the trial panel to set aside the order of default (the sanction order), to appoint counsel to represent the accused, and to reset trial and discovery dates. After receiving the accused's motion, the Bar gave notice of the accused's deposition for July 25, 2000. The accused again did not appear. On August 3, 2000, the trial panel denied the accused's motions. On October 31, 2000, the trial panel issued an opinion concluding that the accused had committed 32 violations of the disciplinary rules and ORS 9.527. The trial panel decided to disbar the accused.

Our review of the decision of the trial panel is automatic, ORS 9.536(2); BR 10.1 (each providing for automatic review of lawyer suspensions exceeding six months), and de novo, ORS 9.536(3); BR 10.6. The Bar contends that we should accept the trial panel's findings of fact and conclusions of law, and disbar the accused. The accused seeks review of the trial panel's decision, pursuant to BR 10.5, and argues that we should impose a suspension of three years.

In addition to seeking review of the trial panel's decision, the accused moved this court for permission to brief and argue the issue whether the Bar should have appointed counsel to represent him before the trial panel, and we granted that motion. The accused filed a brief and a reply brief pro se that accepted some of the trial panel's findings of fact, objected to other findings, and asserted a number of mitigating factors that, according to the accused, the trial panel should have considered in its decision regarding sanctions. Attached to the accused's pro se brief were affidavits and other materials that were not part of the record before the trial panel. Counsel for the accused filed a separate brief, including an affidavit and other material not part of the record, and a reply brief, both of which dealt with the issue of appointment of counsel. (2)

The Bar moved to strike portions of the accused's pro se brief and pro se reply brief, and of the brief that counsel had filed for the accused, on the grounds that they included or referred to material not found in the record and otherwise failed to comply with applicable procedural rules. Those portions of the briefs primarily related to drug addiction generally and to the accused's addiction in particular. The pro se briefs and the brief that counsel filed for the accused relied on that information to support the accused's claim that the trial panel should have appointed counsel to represent him because his addiction had rendered him unable to participate in the proceedings against him. In the pro se briefs, the accused also used the proffered material regarding addiction to support his argument that mitigating factors were present that the trial panel should have considered in deciding on a sanction. The Bar also moved to strike portions of the pro se briefs that did not relate to the accused's drug addiction, but responded on the merits to the Bar's allegations of violations of the disciplinary rules by asserting facts outside the record before the trial panel. Because we review lawyer disciplinary matters on the record that was before the trial panel, BR 10.6, and because the accused had ample opportunity to present the material contained in the briefs to the trial panel but failed to do so in a timely manner, we allowed the Bar's motion to strike.

We begin with the accused's claim that the trial panel should have appointed counsel to represent him. In Devers, an accused lawyer asserted that his due process rights were violated when a trial panel denied his motion for appointed counsel. 328 Or at 233. This court declined to reach the merits of that claim, because only an indigent accused would have a right to appointed counsel, if such a right existed. The accused lawyer had presented no evidence of indigence to the trial panel and had not claimed that he was indigent in his brief to this court. Id. at 234. Here, the accused submitted an affidavit to the trial panel that identified his limited assets and asserted that he was indigent. The accused continued to assert his indigence in his brief in this court and noted that, at approximately the same time as the proceedings before the trial panel, he was found to be indigent for purposes of a criminal proceeding against him. We conclude that the accused has demonstrated indigence sufficient for him to raise before this court the issue whether the trial panel should have appointed counsel to represent him in the disciplinary proceeding. We now turn to the merits of that claim.

The accused first argues that he has a constitutional right to court-appointed counsel under Article I, section 11, of the Oregon Constitution, which provides, in part, that "[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * * *." (Emphasis added.) This court has held that Article I, section 11, "mandates the appointment of counsel for all indigent defendants whose convictions may result in a loss of liberty." Stevenson v. Holzman, 254 Or 94, 104, 458 P2d 414 (1969). Further, in Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), this court focused on the words of the constitutional provision and held that, if a proceeding properly could be characterized as a "criminal prosecution," the subject of the proceeding was entitled to constitutional protections, including the right to counsel, even if imprisonment was not a possible sanction. Id. at 102-08.

In Brown, this court examined the first-time offense for driving under the influence of intoxicants (DUII), which the legislature, as part of an effort to "decriminalize" certain traffic violations, had designated as a "traffic infraction" rather than a "traffic crime," thereby eliminating the possibility of any imprisonment for the offense. 280 Or at 97. To determine whether a civil penalty proceeding, like the newly decriminalized DUII offense, nonetheless remained a "criminal prosecution" for constitutional purposes, this court examined certain "indicia" and noted that "[a]ll [of the indicia] are relevant, but none is conclusive" in reaching the "ultimate determination." Id. at 102. The indicia are: (1) the type of offense; (2) the penalty incurred; (3) collateral consequences; (4) punitive significance; and (5) the role, if any, of arrest and detention. Based on those indicia, this court concluded in Brown that the "decriminalization" of a first offense of DUII "did not free [that] offense from the punitive traits that characterize a criminal prosecution." Id. at 110. Accordingly, the court held that one charged with that offense is entitled to constitutional protections, including the right to counsel, that inure to those charged with more serious traffic crimes for which imprisonment is a possible penalty. Id. at 110-11.

The accused argues that, except for the possibility of "arrest and detention" in connection with the offense, each of the other four indicia discussed in Brown points to the conclusion that a lawyer disciplinary proceeding -- at least one in which disbarment is a possible sanction -- is a "criminal prosecution" for purposes of Article I, section 11. We disagree. At the outset, we take note of ORS 9.529:

"Bar proceedings relating to discipline, admission and reinstatement are neither civil nor criminal in nature. They are sui generis and within the inherent power of the Supreme Court to control. * * *"

Although we agree with the accused that the mere labeling of lawyer disciplinary proceedings as "sui generis" and not "criminal in nature" is not dispositive of whether they might constitute "criminal prosecutions" under Article I, section 11, see Brown, 280 Or at 102, the legislature's statement in that regard is relevant to our analysis. ORS 9.529 identifies lawyer disciplinary proceedings as matters within this court's regulatory authority over those who practice in the Oregon courts, rather than as part of the criminal law process. ORS 9.529 is part of a statutory scheme under which the court may discipline a lawyer determined to have violated applicable rules. See ORS 9.536 (authorizing sanctions). Moreover, this court has stated that

"[p]roceedings for the discipline of an attorney are not to punish the attorney for the commission of a crime. That matter is left to the criminal courts."

In re Carstens, 297 Or 155, 166, 683 P2d 992 (1984). Instead, this court has stated that the purpose of lawyer disciplinary proceedings is to "'protect the public and the administration of justice from lawyers who have not discharged * * * their professional duties to clients, the public, the legal system, and the legal profession.'" In re Smith, 315 Or 260, 266, 843 P2d 449 (1992) (quoting American Bar Association's Standards for Imposing Lawyer Sanctions (1986), Standard 1.1). That purpose overlaps, but is not co-extensive with, the principles underlying the criminal law, which the Oregon Constitution identifies as the "protection of society, personal responsibility, accountability for one's actions and reformation." Or Const, Art I,