The Oregon State Bar charged respondent, E. Andrew Long, with multiple violations of the Oregon Rules of Professional Conduct. Long contested the charges in a trial panel hearing. But he was not able to present his case to the trial panel, because the adjudicator concluded that Long had defaulted when he failed to appear for the second day of the hearing. Long moved the trial panel to vacate the default order, but the trial panel denied that motion. As a result of the default, the trial panel accepted as true all the factual allegations against Long and admitted the Bar’s exhibits.
The trial panel hearing began on August 21 with the Bar presenting witnesses and offering exhibits. Long, who represented himself at the hearing, was about 30-45 minutes late to the start of the hearing that day and was late by about the same amount of time in returning from the lunch recess. Both times he emailed the adjudicator to say that he was running late because he was checking on his partner, who was sick. Long had intended for his partner to serve as his assistant during the hearing.
On the second day, the hearing was set to begin at 9:00 a.m., with the Bar continuing to present its case. By 10:00 a.m., Long had not arrived and had not contacted either the Bar or the adjudicator. The adjudicator declared Long in default based on his failure to appear. BR 5.8(a). The adjudicator also admitted all of the Bar’s proposed exhibits. At 11:16 a.m., Long emailed the Bar and the adjudicator to say that he had overslept after being ill the night before, when he was also caring for his ill partner. He explained that would arrive for the hearing at 1:30 p.m. and would be prepared to present his case the next day. At the same time that Long sent his email, the adjudicator emailed Long, stating that he had declared Long in default at 10:00 a.m. and that the trial proceedings would now focus on an appropriate sanction. Long responded by email, explaining that he had witnesses prepared to testify later in the week and asking the adjudicator to simply continue the trial until that afternoon or the following day.
The adjudicator replied later that day, indicating that, if Long wanted relief from the default, then Long would have to file a motion to set it aside. The adjudicator also noted that he, too, had become ill and would soon be checking himself into the hospital. He added that, even if he could be persuaded to set aside the default, the hearing would likely not resume until the following week because of his own illness.
Default was declared; respondent moved to set it aside
To support his motion to set aside, Long submitted evidence that, later in the day on August 22, a doctor had diagnosed Long with stomach flu.
Most relevantly, we find that, the night before Long failed to appear, he was awake very late with symptoms of stomach flu and eventually fell asleep in a chair away from his bedroom and without an alarm set. We further find that, as he asserted in his motion, Long did not wake up until after the time set for the second day of hearing.
We hold that those facts readily establish excusable neglect and that the trial panel’s contrary ruling applies an unduly narrow interpretation of BR 5.8(b).
The court, as a result, concludes the attorney was denied a fair hearing. (Mike Frisch)