Tuesday, November 12, 2013

No Expert

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)


Bar Discipline & Process | Permalink

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