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In re Complaint as to the Conduct of Eadie12/6/2001
Argued and submitted September 10, 2001.
The accused is suspended for three years, effective 60 days from the date of the filing of this decision.
In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with statutory violations and multiple violations of the Code of Professional Responsibility in connection with his representation of several clients: Disciplinary Rule (DR) 1-102(A)(3) (dishonesty and misrepresentation); DR 1-102(A)(4) (conduct prejudicial to administration of justice); DR 6-101(A) (incompetence); DR 6-101(B) (neglect of client matter); DR 7-102(A)(5) (false statement during representation); DR 7-106(C)(1) (alluding to inadmissible evidence); DR 7-106(C)(7) (intentionally or habitually violating rules of procedure or evidence); DR 7-110(B) (ex parte communications); ORS 9.460(2) (misleading statements); and ORS 9.527(4) (willful deceit or misconduct). A trial panel of the Disciplinary Board concluded that the accused had violated DR 1-102(A)(3), DR 1-102(A)(4), DR 6-101(A), DR 7-102(A)(5), DR 7-106(C)(7), and ORS 9.460(2), and recommended that the accused be disbarred. Our review is automatic. BR 10.1. On de novo review, BR 10.6, we find that the accused violated DR 1-102(A)(3), DR 1-102(A)(4), DR 6-101(A), DR 7-102(A)(5), DR 7-106(C)(1), and DR 7-106(C)(7). We conclude that a three-year suspension from the practice of law is the appropriate sanction.
I. FACTS AND TRIAL PANEL FINDINGS
The Bar has the burden of establishing misconduct by clear and convincing evidence. BR 5.2. "Clear and convincing evidence" means evidence establishing that the truth of the facts asserted is highly probable. In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). We find proof of the following facts by clear and convincing evidence.
A. Burke Matter
The accused represented Shon in a dispute with her neighbor, Burke, regarding an easement. On January 31, 1995, the accused filed a complaint seeking to terminate Burke's easement over Shon's property. The complaint also sought costs and disbursements. Burke did not retain a lawyer to represent her, and the parties thereafter negotiated a settlement agreement. The agreement provided that Shon would dismiss the complaint in return for Burke's promises to execute and return a quitclaim deed, and to remove structures and debris from the property. Burke did not file an answer to the complaint.
On March 8, 1995, in response to a letter that Burke had written to the accused about the settlement, the accused wrote a letter to Burke summarizing the terms of the settlement and concluding:
"The easement is terminated as indicated in your letter. The complaint will be dismissed when the properly executed quit-claim deed is returned and recorded, as indicated above." (Emphasis added.)
Burke executed and returned the quitclaim deed, and fulfilled her other duties under the settlement agreement. The accused thereafter submitted a proposed form of judgment to the trial court, with a copy to Burke, that included an award of costs to Shon. In his cover letter, the accused informed the court that he was seeking a prevailing-party fee. The trial court returned the proposed judgment to the accused, explaining that, unless stipulated, Shon was not a prevailing party and that she therefore was not eligible to recover costs. Burke also wrote a letter to the accused stating that she "d not agree to pay [Shon's] costs and disbursements.
The accused thereafter attempted to recover costs by applying to the trial court for a default judgment against Burke, alleging that Burke had "failed to answer or appear" and not mentioning the settlement
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