September 3, 2009
No Evidence Of Bias In Bar Proceedings
The Oregon Supreme Court disbarred an attorney who had a record of prior discipline. Apparently, the lawyer had previously accused the Bar Counsel and the Bar's Executive Director of bias against him. Here, the court rejected the claims on the merits:
In this proceeding, the accused attempted to make the record that he failed to make in Paulson III. In particular, the accused called the Bar's Disciplinary Counsel, Jeff Sapiro, and its then-Executive Director, Karen Garst, as witnesses. The accused also put in a range of documentary exhibits, such as statistical studies of the Bar membership examining the extent to which the general membership perceives the disciplinary process as fair or biased (and if biased, on what basis), and letters from other persons who had been subject to the disciplinary process in the past and who thought that their particular proceedings had not been fair. In attempting to show that the disciplinary proceeding against him was impermissibly motivated, the accused also relied on the timing of earlier disciplinary proceedings against him, which he asserted coincided with activities in which he had engaged that had caused Sapiro and Garst to be vindictive towards him.
The trial panel -- which the accused does not challenge as biased in any way -- took his claims seriously and addressed them expressly. The trial panel accurately captured the essence of the theme that pervades the accused's arguments in this case:
"These defenses are alleged in a manner suggesting a common theme -- the Bar has treated the Accused differently than other members of the Bar accused of wrongdoing and has done so because the Accused objected to the manner in which the Bar conducted its business; had objected to the disciplinary process as part of a disciplinary system task force some years ago; had been openly critical of Jeff Sapiro and his office; had raised issues of improper ex parte conduct about his case(s) between the Board of Governors and the Supreme Court; and had complained about delay and retaliation against him. In short, that the Accused's assertion of his rights over the past several years has resulted in such animosity towards him that the claims of misconduct by the disciplinary counsel's office have been and are spurious and raised solely to retaliate and silence the Accused."
The trial panel found no persuasive evidence that either Sapiro or Garst had a vindictive or retaliatory motive in taking any action connected with the disciplinary proceedings against the accused. To the contrary, the trial panel found expressly:
"[T]he Accused examined both Karen Garst and Jeffrey Sapiro. The Trial Panel listened to that testimony carefully. The Accused argues the timing of all that has happened to him is sufficient evidence of animosity. While there are inferences that can be drawn in favor of the allegations of the Accused, they do not arise to a level that satisfies the Accused's burden of proof. While Sapiro admitted he was not happy about the federal court civil suit the Accused filed against him and other Bar leaders, there is no convincing evidence the allegations raised in that case, the defenses filed in Paulson II, or those in the case at bar have affected his judgment. In short, the panel finds that the Accused has taken the process very personally while Garst and Sapiro have taken it professionally."
Later, in the discussion and conclusion section of the trial panel's opinion, the trial panel further addressed the accused's claim that the disciplinary proceedings against him were impermissibly motivated:
"We have discussed [the accused's prosecutorial misconduct defenses] above, and are unable to find prosecutorial misconduct in this case. We carefully reviewed the documents in this case, including those offered by the Accused; observed the demeanor and actions of disciplinary counsel and trial counsel for the Bar; and observed the testimony of both Karen Garst and Jeff Sapiro. While the Accused may believe there was a vendetta against him by the Bar, it has not been proven by any reasonable standard. It is true that the Accused has leveled a long series of charges against the Bar over a period of years and that those assertions have been emotional for all concerned. Throughout this time, however, the panel must conclude officials of the Bar seem to have acted properly. That said, the panel would feel differently if the prior disciplinary cases against the Accused (as well as the charges pending here) had been determined to be without merit. Even at that, however, we are not certain that facts that might amount to a tort claim for malicious prosecution are a viable defense in an unrelated disciplinary case."
The trial panel's rejection of the accused's claims of vindictive and retaliatory "prosecution" turned significantly on the panel's credibility assessments of both the accused and the Bar staff. We appropriately defer to those assessments. The accused's theory of vindictive and conspiratorial motivation for the proceedings against him collapses with the trial panel's finding, which we make as well, that neither Sapiro nor Garst took any action that led to the disciplinary proceedings out personal animus against the accused. In addition, as the trial panel observed, and as this opinion earlier concludes based on our de novo review, the complaints against the accused all have proved to be well-founded. Bar staff would have been remiss in meeting their responsibilities had they not investigated those complaints. Likewise, they would have been remiss had they not pursued the additional disciplinary violations that they discovered in the course of their investigations (viz., the violations related to the accused's unauthorized practice of law when his suspension began). Having reviewed all the evidence that bears on the accused's claim that the disciplinary proceedings against him had been brought for impermissible motives, we conclude that the evidence disproves the accused's defense. Consequently, just as the trial panel did not need to decide when a claim of vindictive or retaliatory "prosecution" in a disciplinary proceeding will provide a valid defense to proven disciplinary violations, so, too, do we not need to decide that question.
The court also rejected so-called "affirmative defenses" and constitutional challenges to the bar disciplinary system. (Mike Frisch)
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