Tuesday, November 12, 2013
The web page of the Idaho State Bar reports a reciprocal disbarment based on a sanction imposed in Oregon:
In the Oregon disciplinary case, Mr. Summer represented a plaintiff in a medical malpractice case in Oregon state court. Mr. Summer failed to timely respond to the defendants’ motion for summary judgment. On a date set for hearing on the summary judgment motion, Mr. Summer failed to appear, but he filed an affidavit pursuant to ORCP 47E, in which he swore, under penalty of perjury, that he had consulted with and retained a qualified expert who was available and willing to testify to admissible facts and opinions necessary to establish a genuine issue of material fact. In Oregon, such an attorney’s affidavit is sufficient to avoid summary judgment, and there is no requirement to include evidence from an expert supporting the attorney’s representation. The defendant’s motion for summary judgment was denied based upon Mr. Summer’s affidavit and a trial date was scheduled.
On the date of trial, Mr. Summer appeared and advised the court that the plaintiffs were not prepared to proceed to trial because he was unable to secure the testimony at trial of any qualified experts who were willing to express opinions in favor of plaintiffs and against defendants. The trial court dismissed the case and retained jurisdiction of the case to investigate the factual basis of Mr. Summer’s affidavit filed in opposition to the motion for summary judgment.
The court granted an order compelling Mr. Summer to be deposed about his affidavit. Without obtaining prior relief from the court or the agreement of defense counsel, Mr. Summer failed to appear for the deposition as commanded by a subpoena. The defendants filed a motion for sanctions and motion to show cause against Mr. Summer for his failure to obey the subpoena. Mr. Summer did not appear in court for that hearing, but faxed a letter to the court on the morning of the hearing notifying the court of the reasons for his absence. In that letter, Mr. Summer referenced a consultation with a doctor related to his affidavit. Subsequently, that doctor executed a declaration establishing that Mr. Summer’s affidavit and a letter to the court contained false and misleading statements about the doctor’s willingness to testify in favor of plaintiff. The Oregon Trial Panel and the Idaho Hearing Committee concluded that Mr. Summer filed an intentionally misleading affidavit, blatantly disregarded court orders, intentionally misled the trial court judge, filed the affidavit in bad faith, and prejudiced the decision making process.
The attorney had argued that reciprocal disbarment would be a "grave injustice." (Mike Frisch)