S49826 In re Paulson

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State: Oregon

Docket No: none

Case Date: 06/05/2003

Filed: June 5, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

In re: Complaint as to the Conduct of

LAUREN PAULSON,

Accused.

(OSB 00-105; SC S49826)

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

Argued and submitted March 10, 2003.

Lauren Paulson argued the cause and filed the briefs for himself.

Mary Anne Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.

PER CURIAM

The accused is publicly reprimanded.

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) alleged that the accused had violated Code of Professional Responsibility Disciplinary Rule (DR) 2-106(A) by billing a client for time spent responding to the client's complaint to the Bar against the accused. (1) A trial panel of the Disciplinary Board concluded that the accused had violated DR 2-106(A) and imposed a public reprimand. The accused sought review of the trial panel's decision. We review de novo. ORS 9.536(3); Bar Rule of Procedure (BR) 10.6. We also conclude that the accused violated DR 2-106(A) and impose a public reprimand.

The accused represented a client (Ring) in various matters. After a dispute arose regarding the representation, the accused withdrew. Ring then complained to the Bar regarding the accused's conduct. (The nature of Ring's allegations is not relevant here.) The Bar sent the accused a letter of inquiry. The accused responded to the letter, and the Bar took no further action regarding Ring's original complaint.

The accused, however, billed Ring $67.50 for the time that he spent responding to the Bar's letter of inquiry. Ring complained to the Bar about that bill. The accused continued to bill Ring for the $67.50 for almost one year before deleting it. Afterwards, the Bar filed a formal complaint charging that the bill for $67.50 was for an excessive fee in violation of DR 2-106(A).

The accused first argues that the trial panel's delay in filing an opinion requires dismissal. The hearing transcript in this matter was settled on June 28, 2002, but the trial panel did not file its written opinion with Disciplinary Counsel until October 2, 2002, 96 days later. That was well outside the time within which the trial panel should have filed its opinion with Disciplinary Counsel. BR 2.4(i)(2)(a). (2) Therefore, the accused contends that the charges should be dismissed.

We reject the accused's argument. Time delays do not warrant dismissal except when the delay "substantially prejudiced the ability of the accused or applicant to receive a fair hearing." BR 11.1. (3) Here, the trial panel's delay occurred after the hearing, and the accused fails to allege any prejudice to his ability to receive a fair hearing or to seek review by this court.

On the merits, we conclude that the accused violated DR 2-106(A). The accused cites nothing in the common law, and no statute, rule, or contractual provision, that would entitle him to collect the fee at issue from Ring. (4) In other words, the accused billed Ring for a fee that she had no obligation to pay. Without such an obligation, the fee is clearly excessive.

This court has held fees to be clearly excessive when the accused lawyer billed a client for time that the lawyer in fact spent representing his or her own interests. See In re Benett, 331 Or 270, 278, 14 P3d 66 (2000) (violation of DR 2-106(A); "On this record, the accused was representing only his own interests in his fee dispute with the [clients] and he could not properly bill the [clients] for that time."); In re Stauffer, 327 Or 44, 64, 956 P2d 967 (1998) (violation of DR 2-106(A); accused lawyer billed estate for, among other things, "the time he spent defending himself against * * * [the former personal representative of the estate's] complaints to the Bar about him"); see also In re Miller, 303 Or 253, 256-57, 735 P2d 591 (1987) (violation of DR 2-106(A); accused lawyer billed client for, among other things, 12 hours spent representing different client).

The accused disputes that interpretation of Benett and Stauffer. He contends that the quoted comment from Stauffer was dictum and that Benett was decided wrongly because it misapplied Stauffer. We reject both arguments. In Stauffer, the court held that the accused lawyer charged a fee that was excessive for a multitude of reasons, one of which was that the accused lawyer had billed for time spent responding to a Bar complaint, see 327 Or at 63-64 (listing reasons that accused had charged excessive fees); that conclusion was not dictum. Benett thus correctly characterized Stauffer as holding that "charges for defending against Bar complaints constituted [an] excessive fee[.]" 331 Or at 278.

The accused also contends that DR 2-106(B) demonstrates that the Bar may not challenge the reasonableness of an amount that he includes as a particular item on a bill, but must challenge the reasonableness of the fee as a whole. That argument is meritless. The test for whether a fee is clearly excessive is whether, "after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee." DR 2-106(B). An accused lawyer who charges a client for work that the lawyer performed -- but not for the benefit of that client -- has charged a fee in excess of a reasonable fee, even if the excessive charges appear within a bill that contains other reasonable charges.

The accused also contends that the trial panel should have analyzed individually each of the factors of DR 2-106(B). Those factors are "considered as guides in determining the reasonableness of a fee." Id. Application of those guides here would not advance the analysis. For example, there is no point in considering the time expended or difficulty of the work, DR 2-106(B)(1), because Ring had no obligation to pay for the services regardless of how efficiently the accused performed them. Similarly, there is no need to consider the fee charged in the area for similar legal services, DR 2-106(B)(3), because Ring was not liable for any fee regardless of the reasonableness of the accused's rate.

We conclude that a fee charged for time spent exclusively in pursuit of a lawyer's own interests violates DR 2-106(A). The accused acted exclusively in his own interests when he responded to Ring's complaint to the Bar. Consequently, the fee that the accused charged for his efforts was excessive and in violation of DR 2-106(A).

As a final matter, we must determine the appropriate sanction.

"This court refers to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) for guidance in determining the appropriate sanction for lawyer misconduct. To determine the appropriate sanction, this court first considers the duty violated, the accused's mental state, and the actual or potential injury caused by the accused's misconduct. Considering those three factors leads to a suggested sanction, which this court may choose to impose or may modify after examining aggravating and mitigating circumstances and this court's case law."

In re Lackey, 333 Or 215, 228-29, 37 P3d 172 (2002) (citations and internal quotation marks omitted).

The duty that the accused violated is one owed as a professional. ABA Standard 7.0 introduction (so characterizing violations described in DR 2-106). The trial panel found, and the Bar does not dispute, that the accused's state of mind was negligent; on de novo review we conclude, however, that the accused's conduct was knowing. The accused's conduct could have injured Ring by causing her to pay fees that she did not owe.

The accused's violation of DR 2-106(A) is aggravated by the accused's substantial experience in the legal profession (he has been a member of the Bar since 1973). ABA Standard 9.22(i). However, the accused has no prior disciplinary record, and he made full and free disclosure to the Disciplinary Counsel's Office, which mitigate his actions. ABA Standard 9.32(a), (e).

In In re Potts/Trammel/Hannon, 301 Or 57, 718 P2d 1363 (1986), the only recent case in which this court considered a violation of DR 2-106(A) without significant other disciplinary violations, the court imposed a public reprimand. Id. at 75. Under the facts and circumstances of this proceeding, we agree with the trial panel and Bar, and conclude that a public reprimand is the appropriate sanction.

The accused is publicly reprimanded.

1. DR 2-106 provides in part:

"(A) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.

"(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

"(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

"(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

"(3) The fee customarily charged in the locality for similar legal services.

"(4) The amount involved and the results obtained.

"(5) The time limitations imposed by the client or by the circumstances.

"(6) The nature and length of the professional relationship with the client.

"(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

"(8) Whether the fee is fixed or contingent."

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2. When the Bar filed its formal complaint against the accused in March 2001, former BR 2.4(i)(2)(a) required the trial panel to file its opinion within 21 days after (among other possibilities) the date when the transcript was settled. Effective June 28, 2001, BR 2.4(i)(2)(a) was amended to require the trial panel to file its opinion within 28 days. The Bar does not address the issue explicitly, but appears to concede that the 21-day deadline applied here. We need not decide which version of the rule applied; the trial panel filed its decision well outside both deadlines.

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3. BR 11.1 provides:

"The failure of any person or body to meet any time limitation or requirement in these rules shall not be grounds for the dismissal of any charge or objection unless a showing is made that the delay substantially prejudiced the ability of the accused or applicant to receive a fair hearing."

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4. The accused contended before the trial panel that Ring was required to pay the charge for responding to the Bar complaint under a quantum meruit theory. He failed to elaborate on that argument. "The purpose of quantum meruit is to prevent unjust enrichment at the expense of another." Schroeder v. Schaefer, 258 Or 444, 466, 483 P2d 818 (1971). The accused did not enrich Ring by responding to her complaint to the Bar.

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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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