Friday, December 12, 2008

Procedural Error No Impediment To Discipline

Although it had found procedural error below, the Oregon Supreme Court nonetheless imposed a 120 day suspension in a matter involving ethical violations in the representation of two clients. The attorney had failed to answer the charges, which resulted in a default on the factual allegations. However, the trial panel did not make findings that the facts established the charged misconduct before moving to the sanctions phase of the hearing:

This case arises in an unusual posture.  The Bar entered a default order against the accused because she did not answer the Bar's complaint.  As a result of her default, the allegations in the complaint were deemed true.  See Bar Rule (BR) 5.8(a); In re Magar, 337 Or 548, 551-53, 100 P3d 727 (2004).  After the default order was entered, the Bar asked that a trial panel be appointed to determine the appropriate sanction.  The Bar introduced documentary evidence at the hearing.  The accused appeared at the beginning of the hearing.  She made a short statement that she was sorry that her personal life had interfered with her practice and then left the room in tears.

After considering the evidence at the hearing, the trial panel did not determine whether the accused had committed the charged ethical violations.  Rather, the trial panel appears to have assumed that the accused committed all the charged violations and limited its decision to determining the appropriate sanction.  The panel suspended the accused from the practice of law for five months but stayed the suspension pending her completion of a year's probation.  The Bar has petitioned for review of the trial panel's decision.  It argues that the trial panel should have imposed a one-year suspension with no probation.

Because the court reviews the panel's conclusions de novo, a remand was not necessary. The court made its own findings concerning the charged violations and determined that a suspension of 120 was the appropriate discipline. (Mike Frisch)

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