Sunday, August 18, 2013

The Elements Of A Rule 8.4(d) Violation

An attorney who had failed to appear for telephone proceedings in four criminal matters was suspended for 30 days by the Oregon Supreme Court.

The court found that the attorney's conduct was prejudicial to the administration of justice, rejecting his contention that proof of intent to engage in prejudicial conduct and "substantial harm" are necessary elements of the offense:

[We] reject the accused's characterization of [the court's] efforts to locate him as minimal or merely a matter of routine.

The attorney's claim that it was improper to treat the four matters in the aggregate met the same fate.

The court also rejected the Bar's contention that the offense is one of strict liability:

Because clear and convincing evidence in the record establishes that the accused repeatedly - and at least negligently - failed to appear, we need not decide whether the absence of an express mental state requirement in the text [of the rule] has the effect of imposing "strict liability" for conduct that violates that rule.

The elements of a violation are (1) that the actions or inactions are improper; (2) occurs during the course of a judicial proceeding; and (3) "did or could have a prejudicial effect on the administration of justice."

The attorney had prior discipline for similar misconduct. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/08/an-attorney-who-had-failed-to-appear-for-proceedings-in-four-criminal-matters-was-suspended-for-30-days-by-the-oregon-supreme.html

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