Chapter 009

 

      9.010

 

NOTES OF DECISIONS

 

      Oregon State Bar does not operate as independent licensing authority, but as instrumentality of Judicial Department of State; its members are not only officers of the courts, but are subject to discipline by courts for misconduct. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)

 

      9.080

 

NOTES OF DECISIONS

 

      Petitioner, who became an employee for purposes of public employees retirement law, is eligible for Public Employees Retirement System as of date petitioner became an “employee” under this section. Riemer v. Oregon Public Employees Retirement Board, 258 Or App 665, 310 P3d 1181 (2013), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Constitutionality of payment requirements for legal liability insurance, (1977) Vol 38, p 1379

 

      9.160

 

NOTES OF DECISIONS

 

      A real estate broker is not engaged in the unauthorized practice of law where he acts as a “mere scrivener” in the preparation of deeds and contracts. Oregon State Bar v. Fowler, 278 Or 169, 573 P2d 674 (1977)

 

      Where defendant apparently understood what constituted “practice of law,” statute was not so vague as to be unconstitutional as applied, within meaning of 14th Amendment to Federal Constitution. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)

 

      In determining whether there has been unauthorized practice of law, whether compensation has been charged for legal services is not controlling. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)

 

      Where defendant recommended particular legal forms to persons who were enrolled in his course in legal self-representation, defendant gave legal advice and was engaged in unauthorized practice of law. State ex rel Oregon State Bar v. Wright, 280 Or 713, 573 P2d 294 (1977)

 

      Collection agencies are not engaged in unauthorized practice of law where, pursuant to ORS chapter 697, they solicit and collect claims of third parties upon contingent fee basis. Messmer v. Carter/Bonded Credit Company, 282 Or 323, 578 P2d 788 (1978)

 

      Only individual human being can appear “in person.” Oregon Peaceworks Green, PAC v. Sec. of State, 311 Or 267, 810 P2d 836 (1991)

 

      Practice of law means exercise of professional judgment in applying legal principles to address another person’s individual needs through analysis, advice or other assistance. Oregon State Bar v. Smith, 149 Or App 171, 942 P2d 793 (1997), Sup Ct review denied

 

      Because exercise of professional legal judgment can have noncommunicative aspects, prohibiting unauthorized practice of law does not violate constitutional right to free speech. Oregon State Bar v. Smith, 149 Or App 171, 942 P2d 793 (1997), Sup Ct review denied

 

      Prohibition against unlicensed practice of law does not apply to representation before justice courts pursuant to ORS 52.060. Oregon State Bar v. Arnold, 166 Or App 383, 998 P2d 757 (2000), Sup Ct review denied

 

      Person who exercised professional judgment in applying legal principles to interpret terms used in forms was engaged in practice of law. Taub v. Weber, 366 F3d 966 (9th Cir. 2004)

 

ATTY. GEN. OPINIONS: Right of a nonlawyer union business agent to represent a member before the Public Employes Relations Board, (1972) Vol 35, p 1088

 

LAW REVIEW CITATIONS: 55 OLR 408 (1976)

 

      9.166

 

LAW REVIEW CITATIONS: 75 OLR 889 (1996)

 

      9.200

 

NOTES OF DECISIONS

 

      Writ of mandamus, seeking to compel bar to reinstate petitioner, was inappropriate where rules left final decision on reinstatement to court and delegated only administrative procedures to bar. State ex rel Robeson v. Oregon State Bar, 291 Or 505, 632 P2d 1255 (1981)

 

      Attorney may not waive delinquency notice and default period requirements. In re Leisure, 336 Or 244, 82 P3d 144 (2003)

 

      9.210

 

NOTES OF DECISIONS

 

      The disclosure requirement does not violate the applicant’s constitutional rights. Wilson v. Wilson, 416 F Supp 984 (1976)

 

      9.220

 

NOTES OF DECISIONS

 

      The burden is upon the applicant to prove his good moral character. In re Alpert, 269 Or 508, 525 P2d 1042 (1974)

 

      In showing reformation of character, petitioner satisfied his burden of proving that he is “a person of good moral character.” In re Gimbel, 271 Or 671, 533 P2d 810 (1975)

 

      The requirement of an expression of intent to reside in Oregon does not violate the applicant’s right of interstate travel, equal protection or due process. Wilson v. Wilson, 416 F Supp 984 (1976)

 

      Where applicant for admission was convicted of custodial interference, committed perjury during dissolution proceedings and lacked appreciation of moral and legal implications of misconduct, evidence established his lack of good moral character within meaning of this section. In the Matter of Thomas D. Easton, 289 Or 99, 610 P2d 270 (1980)

 

      Where there was pattern of devious or untruthful testimony under oath and applicant for admission to Oregon State Bar failed to scrupulously honor all financial obligations, applicant failed to prove good moral character. In re Easton, 298 Or 365, 692 P2d 592 (1984)

 

      Where applicant not only engaged in heinous crime in past but continued to misstate facts of crime and his involvement in it in order to gain admission to Bar, applicant did not show himself to be credible person and did not establish that he had good moral character required to practice law. In re Fine, 303 Or 314, 736 P2d 183 (1987)

 

      Where applicant had committed criminal acts that would have resulted in five-year suspension if person had been admitted to practice of law at time acts were committed, applicant would not be permitted to apply for admission until five years from date most recent misconduct was adjudicated. In re Jaffee, 311 Or 159, 806 P2d 685 (1991)

 

      When applicant impersonated employer on telephone to obtain credit and continued to misstate facts about prior dishonesty, bar applicant failed to establish good moral character required to practice law. In re Parker, 314 Or 143, 838 P2d 54 (1992)

 

      Where applicant seeking reinstatement did not testify at hearing, experts suggested restrictions on applicant’s practice and trial panel expressed doubt whether applicant could be trusted in future, applicant failed to establish possession of good moral character requisite to reinstatement by clear and convincing evidence. In re Nash, 317 Or 354, 855 P2d 1112 (1993)

 

      Bankruptcy is insufficient as sole ground for disqualifying applicant from admission to bar. In re Scallon, 327 Or 32, 956 P2d 982 (1998)

 

      9.260

 

NOTE: Repealed October 3, 1989; ORS 9.261 enacted in lieu

 

      See annotations under ORS 9.261.

 

      9.261

 

      See also annotations under ORS 9.260 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 9.260)

 

      Where attorney was deliberately seeking to avoid receipt of mail from Oregon State Bar, failed to pay his dues and was suspended for that failure, court applied this section and held that attorney was “subject to the power of the court in respect to matters arising prior to the” suspension of attorney. In re Coe, 302 Or 553, 731 P2d 1028 (1987)

 

      9.310

 

NOTES OF DECISIONS

 

      Where individual was under permanent injunction forbidding him from practicing law, motion requesting permission to allow individual to act as counsel in case and to admit him to practice of law in one case only was properly denied. Hoffman v. Public Employes Retirement Board, 31 Or App 85, 569 P2d 701 (1977), Sup Ct review denied

 

      9.320

 

NOTES OF DECISIONS

 

      Only individual human being can appear “in person” under this section. Oregon Peaceworks Green, PAC v. Sec. of State, 311 Or 267, 810 P2d 836 (1991)

 

      Tribe may intervene in child custody proceeding even though not represented by attorney. State ex rel Juv. Dept. v. Shuey, 119 Or App 185, 850 P2d 185 (1993)

 

ATTY. GEN. OPINIONS: Application of Fasano v. Bd. of County Commrs. decision, (1974) Vol 36, p 960

 

      9.360

 

NOTES OF DECISIONS

 

      Mandamus was not available to compel attorney to deliver file to former client because this section provided remedy at law to secure file even after case was concluded. McClure v. Hess, 91 Or App 281, 754 P2d 37 (1988)

 

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

 

      9.370

 

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

 

      9.460

 

NOTES OF DECISIONS

 

      Attorney-client privilege is not meant to protect discussion of future crime or fraud designed to conceal past wrongdoing even if the crime could not be prevented by disclosure. State v. Phelps, 24 Or App 329, 545 P2d 901 (1976)

 

      Where attorney’s delay in handling probate of estate was inexcusable, and such delay was compounded by misrepresentations to the court, attorney was suspended from practice of law for period of thirty days. In re Hedges, 280 Or 155, 570 P2d 73 (1977)

 

      Where attorney who was indicted for wilfully failing to file timely income tax returns pleaded guilty to one charge and remaining charges were dismissed, his failure to file returns violated duty to uphold laws of United States as required by this section. In re DesBrisay, 288 Or 625, 606 P2d 1148 (1980)

 

      Where attorney for guardian petitioned for permission to use proceeds of guardianship estate to purchase real estate interests for benefit of wards and deliberately failed to advise court that property being purchased was then owned by conservator, attorney was in violation of this section. In re Greene, 290 Or 291, 620 P2d 1379 (1980)

 

      Intentional violation of prohibition against misleading court or jury by artifice or false statement did not create private cause of action for damage to reputation or attorney fees. Bob Godfrey Pontiac v. Roloff, 291 Or 318, 630 P2d 840 (1981)

 

      Attorney violated this section where, in representing creditor whose debt was due upon sale of land, attorney wilfully concealed from court that sale was pro forma. In re Hiller, 298 Or 526, 694 P2d 540 (1984)

 

      Where untruthfulness of lawyer cannot be said to have arisen for purpose of maintaining client’s cause, this section does not come into play. In re Willer, 303 Or 241, 735 P2d 544 (1987)

 

      Where attorney, who represented client in guardianship proceedings misled probate court by preparing and submitting to court document he knew to contain false statements, attorney violated this section. In re Hawkins, 305 Or 319, 751 P2d 780 (1988)

 

      Attorney’s violation of duty to exercise reasonable care in preserving client secrets is not grounds for suppressing evidence. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

 

      Offense for purposes of ORS 9.527 that is misdemeanor involving moral turpitude or felony cannot also be willful violation of provision requiring that attorney support laws of state. In re Allen, 326 Or 107, 949 P2d 710 (1997)

 

ATTY. GEN. OPINIONS: Private attorney’s liability in performing duty of reporting child abuse, (1978) Vol 38, p 2039

 

LAW REVIEW CITATIONS: 74 OLR 665 (1995)

 

      9.490

 

NOTES OF DECISIONS

 

      Rules adopted under this section apply equally to attorneys who are judges. In re Piper, 271 Or 726, 534 P2d 159 (1975); In re Sisemore, 271 Or 743, 534 P2d 167 (1975)

 

      Although an attorney is not prohibited from closing real estate transactions in which he has been an attorney for one of the parties, precautions must be taken to guard his professional responsibility, including complete written disclosure fully stating his position with respect to clients or parties to the transaction. In re Bauer, 283 Or 55, 581 P2d 511 (1978)

 

      Disciplinary rules apply to both active and inactive bar members. In re Smith, 318 Or 47, 861 P2d 1013 (1993)

 

ATTY. GEN. OPINIONS: Authority of Oregon State Bar to permit lawyers to advertise only in state bar publications, (1977) Vol 38, p 1099

 

      9.527

 

      See also annotations under ORS 9.480 in permanent edition.

 

NOTES OF DECISIONS

 

In general

 

      Suspension or disbarment of a judge as a member of the state bar cannot require his removal as judge, although it would disqualify him from running for reelection as judge while suspended or disbarred. In re Piper, 271 Or 726, 534 P2d 159 (1975)

 

      Isolated instances of ordinary negligence are not alone sufficient to warrant disciplinary action. In re Robert Neil Gygi, 273 Or 443, 541 P2d 1392 (1975)

 

      When court makes order, attorney is not free to disregard it because attorney feels that circumstances of case make order unwise. In re Clostermann, 276 Or 261, 554 P2d 467 (1976)

 

      Where statute speaks specifically to discipline of lawyers, Trial Board and Disciplinary Review Board may consider whether there has been violation of the statute. In re Bridges, 298 Or 53, 688 P2d 1335 (1984)

 

      Attorney who advised client to disobey void order granting preliminary injunction, did not violate this section. In re Tamblyn, 298 Or 620, 695 P2d 902 (1985)

 

      Suspension of attorney does not affect duty of attorney to cooperate with bar investigation or ability of Supreme Court to impose discipline for violations of that duty occurring during suspension period. In re Hereford, 306 Or 69, 756 P2d 30 (1988)

 

      Disciplinary rules apply to both active and inactive bar members. In re Smith, 318 Or 47, 861 P2d 1013 (1993)

 

      In determining appropriate sanction for attorney violating disciplinary rules, factors to be considered are ethical duty violated, lawyer’s mental state, potential or actual injury caused by misconduct, and existence of aggravating or mitigating factors. In re Biggs, 318 Or 281, 864 P2d 1310 (1994)

 

      Absent mitigating circumstances, proper penalty for attorney injuring client by converting client property or by abandoning practice is disbarment. In re Biggs, 318 Or 281, 864 P2d 1310 (1994)

 

      Whether suspended lawyer may be eligible for credit for time spent in voluntary withdrawal from practice of law is determined on case-by-case basis, taking into account factors considered in selecting sanction and whether credit is consistent with protection of public and administration of justice. In re Allen, 326 Or 107, 949 P2d 710 (1997)

 

      In reciprocal disciplinary proceeding, accused may not dispute factual findings entered in other state, but court may elect to either accept findings of other state or to develop separate factual record. In re Page, 326 Or 572, 955 P2d 239 (1998)

 

      In reciprocal discipline case, appropriate sanction is determined by viewing conduct in relation to Oregon disciplinary rules, not status given violation under rules of other state. In re Page, 326 Or 572, 955 P2d 239 (1998)

 

      Conviction is not prerequisite to finding that bar member committed act or carried on course of conduct that would be grounds for denying application for admission. In re Kimmell, 332 Or 480, 31 P3d 414 (2001)

 

      Where conduct of accused qualifies for sanction under both disciplinary rule and this section, dual qualification of conduct for sanction does not enhance applicable penalty. In re McDonough, 336 Or 36, 77 P3d 306 (2003)

 

Felony or misdemeanor

 

      The conviction of the crime of theft in second degree was a misdemeanor involving moral turpitude for the purposes of this section. In re Mahr, 276 Or 939, 556 P2d 1359 (1976)

 

      Where attorney who was indicted for wilfully failing to file timely income tax returns for four years pleaded guilty to one charge and remaining charges were dismissed, there was sufficient basis for his suspension under this section. In re DesBrisay, 288 Or 625, 606 P2d 1148 (1980)

 

      Misdemeanor conviction for crime of theft is conviction involving moral turpitude. In re Carstens, 297 Or 155, 683 P2d 992 (1984)

 

      Conviction of attempted possession of controlled substance is not misdemeanor involving moral turpitude. In re Chase, 299 Or 391, 702 P2d 1082 (1985); In re Allen, 326 Or 107, 949 P2d 710 (1997)

 

      Attempted possessory offense requires intent or knowledge but not fraud, deceit or dishonesty, does not involve harm to specific victim or illegal activity for personal gain; without any elements beyond intent there is no moral turpitude. In re Chase, 299 Or 391, 702 P2d 1082 (1985)

 

      Offense that is misdemeanor involving moral turpitude or felony cannot also be willful violation of ORS 9.460 requirement that attorney support laws of state. In re Allen, 326 Or 107, 949 P2d 710 (1997)

 

      Provision making “record of conviction” conclusive requires Supreme Court to review record to determine what trial court actually and necessarily resolved in finding defendant guilty. In re Nuss, 335 Or 368, 67 P3d 386 (2003)

 

      In determining whether misdemeanor involves moral turpitude, Supreme Court will consider whether crime: 1) was intentional or knowing; and 2) involved fraud, deceit, dishonesty, illegal activity for personal gain or act of baseness, vileness or depravity in private and social duties owed to others or society. In re Nuss, 335 Or 368, 67 P3d 386 (2003)

 

Deceit or unprofessional conduct

 

      Attorney was reprimanded for failure to surrender securities after termination of custodianship over client by court order. In re Clostermann, 276 Or 261, 554 P2d 467 (1976)

 

      Although degree of truthfulness expected from lawyer is higher than that expected from others, where lawyer’s misconduct did not take place while acting in his capacity as a lawyer, nor was it such that it could be subject of any criminal or civil sanction if performed by a nonlawyer, lawyer’s improper conduct did not require formal reprimand. In re Jeffrey Steffen, 279 Or 313, 567 P2d 544 (1977)

 

      Where evidence showed that attorney failed to file action, but represented to his clients that he had done so, falsely represented to defense attorney that he had authority to settle for less than clients’ full expenses and failed to inform clients he had settled case, attorney violated this section, even though his false representations were result of failure to correct false impressions rather than result of active misrepresentation. In re Fuller, 284 Or 273, 586 P2d 1111 (1978)

 

      Standard for determination whether misdemeanor involves moral turpitude is not identical to standard for determination under disciplinary rules whether criminal act reflects on lawyer’s fitness to practice law. In re Allen, 326 Or 107, 949 P2d 710 (1997)

 

      Embezzlement generally merits disbarment regardless of whether embezzled money belonged to client or to other persons. In re Murdock, 328 Or 18, 968 P2d 1270 (1998)

 

      Attorney is not exempt from discipline for misrepresentation of identity and purpose made for purpose of acquiring information. In re Gatti, 330 Or 517, 8 P3d 966 (2000)

 

LAW REVIEW CITATIONS: 18 WLR 312 (1982)

 

      9.529

 

NOTES OF DECISIONS

 

      Where trial panel decision regarding bar member discipline is not type of decision subject by statute to Supreme Court review, court has inherent power to review decision. In re Albrecht, 333 Or 520, 42 P3d 887 (2002)

 

      9.534

 

NOTES OF DECISIONS

 

      Rules of procedure developed by board of governors for use in attorney discipline hearings are exclusive provisions governing admissibility of evidence at hearings. In re Barber, 322 Or 194, 904 P2d 620 (1995)

 

      Accused bar member does not have constitutional right to appointed counsel in disciplinary proceeding. In re Harris, 334 Or 353, 49 P3d 778 (2002)

 

      9.535

 

      See annotations under ORS 9.536.

 

      9.536

 

      See also annotations under ORS 9.540 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 9.535)

 

      Costs allowed Oregon State Bar in disciplinary action are not limited to items for which costs may be allowed in civil litigation. In re Greene, 277 Or 737, 562 P2d 539 (1977)

 

In general

 

      Where accused fails to answer or make other appearance, allegations in bar’s formal complaint are deemed true for purposes of review. In re Bourcier, 322 Or 561, 909 P2d 1234 (1996)

 

      Stipulation for discipline entered into between accused and bar does not have precedential value for purposes of court review. In re Murdock, 328 Or 18, 968 P2d 1270 (1998)

 

ATTY. GEN. OPINIONS

 

In general

 

      Effect of disbarment proceedings on service as district attorney, (2001) Vol 49, p 272

 

      9.537

 

NOTES OF DECISIONS

 

      Where bar complaint was filed against counsel for prevailing party, “civil liability” included increase in prevailing party attorney fee award to cover counsel’s cost of defending against complaint. Kovac v. Crooked River Ranch Club, 337 Or 162, 93 P3d 69 (2004)

 

      9.542

 

NOTES OF DECISIONS

 

      Rules of procedure developed for use in attorney discipline hearings are exclusive provisions governing admissibility of evidence at hearings. In re Barber, 322 Or 194, 904 P2d 620 (1995)

 

      9.545

 

      See annotations under ORS 9.568.

 

      9.568

(formerly 9.545)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 9.595)

 

      18 WLR 313 (1982)

 

      9.595

 

NOTE: Repealed October 15, 1983; ORS 9.545 enacted in lieu

 

      See annotations under ORS 9.568.

 

      9.695

 

NOTES OF DECISIONS

 

      Although this section prohibits search and seizure of files or work premises of lawyer, it does not proscribe routine fire safety inspections conducted pursuant to narrowly drawn search warrant that provides reasonable notice to lawyers whose offices will be inspected. Parks v. City of Klamath Falls, 82 Or App 576, 728 P2d 934 (1986), Sup Ct review denied

 

      Where there is probable cause to believe lawyer has committed crime, lawyer’s papers and effects lose confidentiality protection even if no probable cause exists to believe papers or effects will yield evidence of crime. State v. Makuch/Riesterer, 185 Or App 298, 59 P3d 536 (2002), aff’d 340 Or 658, 136 P3d 35 (2006)

 

      Evidence obtained in violation of laws of another state may provide probable cause to believe lawyer has committed, is committing or is about to commit crime. State v. Makuch/Riesterer, 185 Or App 298, 59 P3d 536 (2002), aff’d 340 Or 658, 136 P3d 35 (2006)

 

      Client has no constitutionally protected privacy interest in listing of client’s name or home or business address in papers or effects of lawyer. State v. Makuch/Riesterer, 185 Or App 298, 59 P3d 536 (2002), aff’d 340 Or 658, 136 P3d 35 (2006)

 

      9.990

 

NOTES OF DECISIONS

 

      Notwithstanding that criminal penalty is also provided, enforcement of this section by issuance of injunction by court of equity was appropriate remedy where nonlawyer was engaged in open, persistent, continuous and admitted violation of ORS 9.160. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)