April 2, 2009
Back To Square One
There are relatively few cases that closely examine the procedural aspects of bar discipline. An interesting case decided today by the Oregon Supreme Court held that procedural irregularities merited a remand of findings of misconduct but not dismissal of the charges.
The Bar had filed charges against the attorney and the matter was assigned to a hearing panel. The Bar submitted its documentary evidence in advance of the hearing. The documents revealed a possible conflict between the accused and a panel member. The accused did not raise any issues relating to the document prior to the hearing. On the day of the scheduled hearing, the matter proceeded until the issue of the possible conflict was raised. A determination was made to send the matter to a new panel for disposition.
The attorney claimed that the prehearing submission of documents was an improper ex parte contact with the trier of fact. The court rejected that contention but addressed another procedural issue relating to the findings of the second panel:
On review, the accused does not raise directly any issue concerning the substance of the trial panel's decision. Instead, the accused argues that two alleged procedural errors by the trial panel so deprived him of important procedural rights that this court should dismiss the entire disciplinary action against him. The accused contends, first, that the Bar violated his due process rights by engaging in ex parte contacts with the first trial panel and, therefore, the first trial panel should have dismissed the charges against him. Second, the accused argues that he was improperly denied the right to exercise a peremptory challenge to a member of the second trial panel and, therefore, this court should dismiss the charges against him. As we shall explain, we find no merit in the accused's first claim, but some merit in the second.
The court majority found that the failure to permit the accused a peremptory challenge at the second hearing was procedural error that warranted a new hearing.
A dissent found that the underlying charges were proven and would affirm the findings of misconduct:
It is true that some procedural errors may affect the development of a record in a way that cannot be cured on appeal, even on de novo review. In those instances, the case has to be remanded for a new hearing. But this court has never held that every procedural error requires a remand. Some errors are, after all, harmless, and the inquiry is or should be whether a procedural error affected the trial panel's decision in a way that requires a new hearing. In this case, the accused has not even attempted to identify any way in which the erroneous denial of a peremptory challenge affected either his ability to create a record or our ability to correct any perceived error in the trial panel's resolution of the charges against him. Perhaps the accused has not done so because the only real dispute below appears to have been whether his undisputed acts on behalf of his clients constituted the practice of law. Had the accused chosen to raise that legal issue on review, we could have addressed it and resolved it one way or the other. However, without any challenge to that issue and without some basis for thinking that the Bar's procedural error affected our ability to review these proceedings, I would affirm the trial panel's decision.
Most courts, I think, would agree with the dissent that a procedural mistake would not invalidate a proper determination of misconduct based on record evidence. (Mike Frisch)
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