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In re Complaint as to the Conduct of Eadie12/6/2001
E. Trial Panel Sanction Determination
The trial panel concluded that, in view of the prior disciplinary record and the ethical violations found by the trial panel arising out of four separate cases, and involving numerous and factually separate circumstances, "disbarrment is the only way to protect the public and the integrity of the profession."
II. ISSUES ON REVIEW
A. Burke Matter
1. DR 1-102(A)(3)
It is professional misconduct for a lawyer to " ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." DR 1-102(A)(3). To violate the rule, an accused's misrepresentations, whether direct or by omission, must be knowing, false, and material in the sense that the misrepresentations would or could significantly influence the hearer's decision-making process. See In re Kluge, 332 Or 251, 255, 19 P3d 938 (2001) (so stating).
As a threshold matter, we address whether the trial court's denial of Burke's motion to set aside the default judgment under ORCP 71 B(1)(c) precluded the trial panel from holding that the accused had violated DR 1-102(A)(3). Although there may be circumstances in which the doctrine of issue preclusion would prevent consideration of a claim that a lawyer had violated a disciplinary rule, issue preclusion plays no role here. Issue preclusion requires, among other things, that the party sought to be precluded was a party (or was in privity with a party) to the prior proceeding and that the party sought to be precluded had a full and fair opportunity to be heard on that issue. See Nelson v. Emerald People's Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993) (setting out elements of issue preclusion). The Bar neither was a party nor was in privity with a party in Shon v. Burke. Even assuming that the terms "fraud, misrepresentation, or other misconduct" under ORCP 71 B(1)(c) mean the same as "dishonesty, fraud, deceit, or misrepresentation" under DR 1-102(A)(3), the Bar did not have a full and fair opportunity to be heard in the hearing on Burke's motion under ORCP 71 B(1)(c) to set aside the default judgment. The trial panel was not constrained by principles of issue preclusion from finding that the accused intentionally had misrepresented the question of payment of court costs in his settlement letter to Burke and that Burke had relied on the omission to her detriment.
We turn to the merits on this issue. The Bar contends that the accused violated DR 1-102(A)(3) and DR 1-102(A)(4) by making a misrepresentation by omission to Burke in the settlement agreement and by applying for a default judgment that included costs after he had told Burke that he would dismiss the complaint once she had complied with the terms of the settlement agreement. The accused contends that his conduct was not unethical.
We find that the accused intentionally omitted from the settlement agreement his intent to seek costs. The complaint that the accused filed in Shon v. Burke made clear that the accused sought costs. However, Burke objected to paying costs. Burke's objection indicates that, to her, the matter of costs was an important element of the settlement. The settlement agreement that the accused sent to Burke made no mention of costs, leading Burke to believe that the settlement did not include them. The accused intentionally failed to disclose a material fact -- namely, that he intended to seek costs -- to obtain Burke's acquiescence to settle her dispute with Shon. The accused violated DR 1-102(A)(3).
We turn to the accused's submission of a default judgment to the court that contained an award of costs to Shon after the parties had settled the case. As we have explained,
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