Friday, January 22, 2010

Burglary Did Not Cause Neglect

The Oregon Supreme Court suspended an attorney for 120 days based on findings that he had neglected a divorce case and falsely attributed his lack of preparation to a burglary of his trailer/office. The underlying facts:

The accused has been a lawyer since 1976.  In 2005, he began working as the administrator of a charter school operated by People Involved in Education (PIE).  The accused still continued to handle a few cases and used space in a trailer that PIE owned for his law office.  In the fall of 2005, the accused agreed to represent a coworker, who was in the process of divorcing her husband.  The accused's client (the wife) and her husband had already reached an agreement on parenting time and property division, and the accused filed a petition for the dissolution of the marriage on December 19, 2005, in Linn County Circuit Court.

On December 26, 2005, someone broke into and vandalized the trailer that the accused used for his law office. The accused's files were "trashed," including the wife's dissolution file.  At that point, the dissolution file consisted of the petition and information that the wife had given the accused.  The accused reconstructed most, if not all, of the wife's file and, after December 26, 2005, stopped using the trailer as his law office.

The false representations were later made to the tribunal:

The Bar argues that the accused's explanation was false or misleading in two respects.  First, it argues that no burglaries occurred after December 26, 2005, and, at a minimum, after April 20, 2006 -- the date that would have affected the accused's ability to proceed with the arbitration.  Second, the Bar argues that, even if the trailer was burglarized after April, the accused misled the trial court into believing that those break-ins were the reason that he had failed to respond to the arbitrator's request and proceed with the dissolution case.  The Bar notes that, because the accused stopped working out of the trailer after December 2005, any subsequent break-ins would have had no material effect on his ability to represent the wife's interests.

We begin with the number and timing of any burglaries.  The evidence clearly establishes that, on or about December 26, 2005, someone broke into the trailer that the accused used for office space and completely vandalized its contents, including the accused's legal files.  The testimony regarding the existence and timing of other break-ins was mixed.  The owner of the property on which the trailer was located works approximately 150 feet from the trailer and walks or drives by it daily.  He testified that, within a month after the December break-in, the trailer's windows and doors were boarded up and that he never saw evidence of a later break-in.  Another witness, Cody Northern, is involved in PIE and helped maintain the trailer.  He testified that two break-ins or attempted break-ins occurred before the major break-in, but he could not identify the date when any of the break-ins had occurred.  His mother, Mary Northern, testified that more than one break-in occurred, and her testimony primarily is consistent with her son's that the break-ins preceded the major break-in in December.  One part of her testimony, however, may permit a weak inference that some break-ins occurred after December 2005. Finally, at the disciplinary hearing, the accused sought to clarify his response to the trial court in July.  He testified that,

"in responding in court that day about the later burglaries, what I should have made more clear was the fact that I don't know when any of the burglaries occurred.  I personally don't have that knowledge.  The reference that I should have made clearer is that I became aware of at least two others after the last -- after the April court date."

There are no police reports or other documentation of any burglaries after December 26, 2005, and we conclude that no break-ins occurred after that date.  The accused's statement to the court on July 20, 2006, that two burglaries had occurred after April 20, 2006 was, at a minimum, too broad, as he later acknowledged.

The attorney had a prior history of bar discipline for neglect of client matters. (Mike Frisch)


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