Thursday, February 1, 2018

No Statute Of Limitations In Oregon Bar Discipline

The Oregon Supreme Court rejected an asserted statute of limitations defense and suspended an attorney for one year

The accused was admitted to the Oregon State Bar in 1991. His primary practice areas have been criminal defense and family law. This disciplinary proceeding was based on the accused’s representation of a client, Carson Culp. The accused obtained a money judgment for Culp, but then, over a period of years, failed to take the actions necessary to collect the unsatisfied judgment, and, when Culp complained about the accused’s representation, the accused entered into an agreement with Culp to settle Culp’s potential malpractice claims, without advising Culp of the desirability of seeking independent counsel.

The bar case

In April 2013, Culp complained to the Bar about the accused’s representation. After an investigation, the Bar filed a formal complaint in January 2015. The case was tried in October 2016.

During the trial, the accused offered into evidence a letter he wrote to Culp in November 2015, attempting to settle the disciplinary proceeding. The letter states, “As you know, the bar is looking into my representation of you regarding the Split Rail property and the Ranger Court foreclosure. I would like to attempt to resolve this matter. Please give me a call.” After sending the letter, the accused called Culp and offered him $1,000, and later $1,500, in the hope that Culp would withdraw his complaint and the Bar would dismiss the disciplinary proceeding.

On review of the panel decision

the accused concedes the rule violations that the trial panel found, but challenges the trial panel’s decision on two grounds; he asserts that (1) the disciplinary proceeding was barred by the statute of limitations set out at ORS 12.110, and (2) that the trial panel erred in its assessment of aggravating and mitigating factors and its imposition of the one-year suspension. In response, the Bar asserts that lawyer disciplinary proceedings are not subject to any statute of limitations, and it asks this court to adopt the trial panel’s findings of fact and conclusions of law regarding the violations and to suspend the accused for not less than one year.

The court finds the attorney SOL on the SOL claim, rejecting an argument for the application of limitations by analogy to the civil rules

the accused argues that lawyer disciplinary proceedings are subject to the statute of limitations set out in ORS 12.110(1). In support of his argument, the accused relies on ORS 9.010, which provides, in part, that the Bar is a public corporation and is subject to certain statutes applicable to public bodies, including the Oregon Rules of Civil Procedure. ORS 9.010(2), (3)(d). In addition, the accused points out that ORCP 21 A provides that a statute of limitations defense may be raised through a motion to dismiss. The accused reasons that, because the Bar is subject to the Oregon Rules of Civil Procedure and ORCP 21 A provides a procedure for raising a statute of limitations defense, a lawyer may raise such a defense in a Bar disciplinary proceeding. According to the accused, the applicable statute of limitations is ORS 12.110(1), which provides that “an action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years[.]” The accused contends that, in this case, the two-year limitations period began to run in August 2012, when he notified Culp that nothing further could be done to collect the judgment, and, consequently, the Bar’s complaint, which was filed in January 2015, was time-barred...

We agree with the Bar. As mentioned, we have previously held that there is no statute of limitations defense in lawyer disciplinary proceedings.

Sanction

Given the accused’s multiple violations in this case, each of which was knowingly or intentionally committed; the extended time period over which the violations occurred; the substantial injury caused to Culp; the multiple aggravating factors, including the accused’s selfish motive and Culp’s vulnerability; and the limited mitigating factors, we conclude that a lengthy sanction is appropriate.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/02/the-oregon-supreme-court-rejected-an-asserted-statute-of-limitations-defense-and-suspended-an-attorney-f-or-one-year-the-acc.html

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