S47016 Frease v. Glazer

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 06/29/2000

FILED: JUNE 29, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

DIANN FREASE,
fka DIANN TORABI,

Plaintiff-Adverse Party,

PETER K. GLAZER,

Defendant-Relator.

(CC 9809-06647; SC S47016)

En Banc

Original proceeding in mandamus.*

Argued and submitted May 15, 2000.

Bradley F. Tellam, Barran Liebman LLP, Portland, argued the cause and filed the brief for defendant-relator. With him on the brief were William A. Davis, Marianne M. Ghim, and Alan Gladstone, Abbott, Davis, Rothwell, Mullin & Earle, P.C., Portland.

Lori DeDobbelaere, Lachenmeier, Enloe & Rall, Portland, argued the cause and filed the brief for plaintiff-adverse party. With her on the brief was Rudy R. Lachenmeier, Portland.

LEESON, J.

Peremptory writ to issue.

*On petition for writ of mandamus from an order of the Multnomah County Circuit Court.

LEESON, J.

In this tort action, the trial court granted plaintiff's motion to compel production for in camera review of defendant's files relating to defendant's legal representation of plaintiff's ex-husband, Torabi. Defendant objected to the motion on the grounds that the files were protected by the attorney-client privilege and that the materials in the files were defendant's work product. The trial court ruled that: (1) defendant's client had waived the attorney-client privilege by fleeing the jurisdiction and; (2) in any event, plaintiff had presented evidence sufficient to justify in camera review to determine the applicability of the crime-fraud exception to the attorney-client privilege. Defendant then brought the present mandamus proceeding, and this court issued an alternative writ of mandamus. For the reasons that follow, we conclude that defendant is entitled to a peremptory writ of mandamus directing the trial court to vacate its order compelling in camera review of defendant's files relating to his representation of Torabi.

The record reveals the following facts. Plaintiff and Torabi, who is a native of Iran, were married in May 1992. During their marriage, they had one child, born in June 1995. Plaintiff and Torabi entered into a stipulated dissolution of their marriage in July 1996. Under the terms of the dissolution judgment, plaintiff was awarded sole custody of the child, and Torabi had visitation rights. The judgment prohibited Torabi from removing the child from the United States without the permission of the court and required him to surrender his United States and Iranian passports to plaintiff before exercising his visitation rights with the child. The judgment also required each party to notify the court if he or she intended to move to a residence that was located more than 60 miles away from the other party. Finally, the judgment awarded Torabi the parties' residence, subject to a lien in favor of plaintiff in the amount of $43,000, which plaintiff assigned to her parents in March 1997. Defendant did not represent Torabi in the dissolution matter.

In July 1996, plaintiff took the child from Oregon to Hawaii. Torabi subsequently retained defendant, who filed motions for an order to show cause why plaintiff should not be held in contempt for removing the child from Oregon and to change custody of the child from plaintiff to Torabi. The trial court scheduled a hearing on the show-cause motion for September 11, 1996.

Plaintiff returned to Oregon in August 1996, and defendant took her deposition on August 27. At the conclusion of the deposition, the parties agreed to postpone the show-cause hearing that had been scheduled for September 11, 1996, on the conditions that plaintiff return the child to Oregon by September 3, provide Torabi with make-up visitation starting the next day, and immediately surrender her passport to her attorney, Matthews. On August 28, Matthews scheduled a mediation session for the parties for September 11, 1996, at the same time that they were to appear at the hearing on the motions to show cause and to change custody that the parties conditionally had agreed to postpone. Also on August 28, plaintiff went into hiding with the child, and she did not return the child to Oregon on September 3, 1996. On September 4, Matthews resigned as plaintiff's attorney.

Defendant appeared for the hearing on the motions to show cause and to change custody on September 11. Plaintiff did not appear, either personally or through an attorney. Defendant explained to the court that, as he understood the situation, plaintiff was not going to appear and that Matthews had resigned as her attorney. After that hearing, the circuit court entered an order transferring legal and physical custody of the child to Torabi. The order, which defendant drafted, contained no requirement that Torabi surrender his passports to plaintiff as a condition of custody.

Plaintiff was arrested for custodial interference in February 1998, approximately 17 months after she had gone into hiding with the child. After plaintiff's arrest, Torabi took custody of the child. For the next several months, plaintiff sought to have the criminal charges against her dismissed and to regain legal custody of the child. Defendant provided legal advice to Torabi throughout that period. In June 1998, Torabi disappeared with the child. Although there is no conclusive proof, the most reasonable inference is that Torabi took the child to Iran.

In September 1998, plaintiff filed this action against defendant. Her complaint asserts claims for intentional infliction of emotional distress and misrepresentation, based on defendant's appearance at the show-cause hearing on September 11, 1996. According to plaintiff's complaint, defendant knew that the September 11 show-cause hearing had been canceled because, "at the deposition [the parties] had postponed the hearing by agreement and subsequently scheduled a mediation to occur on that very date." The complaint alleges that defendant failed either to inform the court of those events or of the fact that two attorneys had made telephone calls to him indicating that they might be representing plaintiff. Because of defendant's conduct, the complaint alleges, "[p]laintiff was not allowed the opportunity to be heard regarding the Motion and Order to Show Cause," and, as a result, she "wrongfully lost custody of her daughter and no longer has access to her daughter and in all likelihood, will never see her daughter again." The complaint seeks damages of more than $2 million.

In November 1998, plaintiff's parents received an order allowing them to take possession of Torabi's house to satisfy the money judgment against Torabi that plaintiff had assigned to them in March 1997. The moving company that packed Torabi's possessions made an inventory of what he had left behind, which included three letters that defendant had written to Torabi in February, March, and April 1998, regarding Torabi's ongoing custody dispute with plaintiff. Torabi apparently had left the letters on his desk. Plaintiff's parents disclosed the contents of the letters to plaintiff.

On November 15, 1999, after defendant had filed a motion for summary judgment on plaintiff's claims, but before the court had ruled on the motion, plaintiff filed a motion to compel production of defendant's files relating to his representation of Torabi. Defendant objected to the motion to compel on grounds of relevance, the attorney-client privilege, and the work-product doctrine. Plaintiff offered two theories to support her argument that the attorney-client privilege did not bar production of the documents. First, she argued that Torabi had waived the privilege when he left behind the three letters that plaintiff's parents had acquired when they took possession of Torabi's house. Second, she asserted that Torabi had retained defendant in furtherance of his intent to commit or plan to commit a crime or fraud, so the materials were not covered by the attorney-client privilege under OEC 503(4)(a). (1)

On November 19, 1999, the trial court ordered defendant to turn over his files regarding his representation of Torabi for review in camera. The court explained the basis for the order as follows:

"[T]here is evidence in all of the documentation that I have had presented to me, a plan, to commit a criminal act. The evidence of that plan to commit a criminal act is that there was an order regarding custody and an order regarding turning over passports.

"I'm also well aware, as I'm sure any member of the bar is aware, that it is illegal to take a child out of the jurisdiction of the Court, flee to another country, when the other party has any rights whatsoever to that child. That by seeking an order changing custody, without the previous turnover of the passport, that that was done intentionally. It was done intentionally to increase [Torabi's] ability and rights over that child. They're not rights -- ability to flee the country, because there is no other reason to take out of an order turning over the passport.

"* * * * *

"I'm also making a note that once someone has committed a criminal act and fled the country, and I believe there is no question or dispute about that here, they've left behind part of their attorney-client privilege. They've fled the country, they have refused to respond, that they have waived that privilege to attorney-client relationship." (2)

This mandamus proceeding followed. The issues are twofold: (1) whether the trial court erred as a matter of law when it held that Torabi waived the attorney-client privilege when he fled the jurisdiction; and (2) whether the trial court erred in ordering in camera review of defendant's files to determine whether material in those files contained evidence that might establish the applicability of the crime-fraud exception to the attorney-client privilege.

The attorney-client privilege is codified as Rule 503 of the Oregon Evidence Code. It provides, in part:

"(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

"(a) Between the client or the client's representative and the client's lawyer or a representative of the lawyer;

"* * * * *

"(3) The privilege created by this section may be claimed by the client, a guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client."

Although the attorney-client privilege belongs exclusively to the client, State ex rel OHSU v. Haas, 325 Or 492, 505, 942 P2d 261 (1997), the client's attorney may claim the privilege on the client's behalf, OEC 503(3). An attorney's statutory authority to do so is consistent with an attorney's ethical obligation to protect a client's confidences and secrets. See DR 4-101 (defining confidences as "information protected by the attorney-client privilege").

The attorney-client privilege is one of the oldest and most widely recognized evidentiary privileges. See State v. Jancsek, 302 Or 270, 274, 730 P2d 14 (1986) (so stating, citing Laird C. Kirkpatrick, Oregon Evidence, 146 (1982)); Upjohn Co. v. United States, 449 US 383, 389, 101 S Ct 677, 66 L Ed 2d 584 (1981) (same, citing 8 J. Wigmore, Evidence,

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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In Re: Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that

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the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media 2

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attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
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RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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ORS 419A.255 provides, in relevant part:

"(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ."

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the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 6

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801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 7

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misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 8

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untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419A.255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.4 It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm.

Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

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See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an 10

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inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, 11

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harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed.

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