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In re Complaint as to the Conduct of Eadie12/6/2001
the accused concealed his intent to recover costs against Burke by not including them in the settlement agreement. After Burke had agreed to the settlement and had complied with its terms, she was entitled to believe that the matter was resolved and that the accused would dismiss the action. The accused did not inform Burke that he intended to seek a default judgment notwithstanding the settlement. The accused's failure to correct a false impression created by nondisclosure of a material fact -- that the settlement agreement did not resolve completely the case of Shon v. Burke -- was a misrepresentation under DR 1-102(A)(3).
2. DR 1-102(A)(4)
It is professional misconduct for a lawyer to " ngage in conduct that is prejudicial to the administration of justice." DR 1-102(A)(4). To establish a violation of that rule, the Bar must show: (1) that the accused lawyer engaged in "conduct" by doing something that the lawyer should not have done or by failing to do something that the lawyer was supposed to do; (2) that the conduct occurred during the course of a judicial proceeding or another proceeding that has the trappings of a judicial proceeding; and (3) that the conduct was prejudicial because it involved several acts that caused some harm to the administration of justice or because it involved a single act that caused substantial harm to the administration of justice. In re Gustafson, 327 Or 636, 643, 968 P2d 367 (1998).
The Bar argues that the accused violated DR 1-102(A)(4) by applying for a default judgment for costs against Burke, contrary to the settlement agreement that called for dismissal of Shon's action against Burke, and by failing to give Burke notice, under ORCP 69 A(1), of his intent to apply for a default judgment. The Bar contends that Burke's "substantive interests were substantially and adversely affected by the Accused's conduct."
As we have explained above, to establish a violation of DR 1-102(A)(4), the Bar must satisfy all three prongs of the test summarized in Gustafson. Here, the Bar has not demonstrated that the accused's conduct in applying for the default judgment was an act that caused substantial harm to the administration of justice. To the extent that the Bar makes an argument regarding the "prejudice" prong of that test in this matter, it focuses solely on prejudice to Burke, not on prejudice to the administration of justice. The Bar has not met its burden of proving that the accused violated DR 1-102(A)(4).
3. DR 7-110(B)
Unless otherwise authorized by law, it is professional misconduct for a lawyer to communicate in writing on the merits with a judge or an official before whom the proceeding is pending unless the lawyer "promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a lawyer." DR 7-110(B)(2). This court has construed the term "on the merits" in that rule to include procedural as well as substantive matters. In re Schenck, 320 Or 94, 103, 879 P2d 863 (1994).
The Bar contends that the accused violated DR 7-110(B) by failing to notify Burke of his intent to apply for a default judgment. The accused responds that he was not required to provide Burke with notice because he was "authorized by law" under ORCP 69 A(1) not to do so.
ORCP 69 A(1) requires a party seeking a default judgment to provide the opposing party with written notice at least ten days prior to the entry of the order of default
" f the party against whom an order of default is sought has filed an appearance in the action, or has provided written notice of intent to file an appearance to the party seeking an order of default[.]"
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