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In re Complaint as to the Conduct of Eadie12/6/2001
(Emphasis added.)
It is undisputed that Burke did not file an answer to Shon's complaint and sought instead to settle the case. The Bar contends that, by informing the accused before the settlement that she objected to paying his costs, Burke triggered the ten-day notice requirement in ORCP 69 A(1). The Bar relies on Morrow Co. Sch. Dist. v. Oreg. Land and Water Co., 78 Or App 296, 300 n 4, 716 P2d 766 (1986), for the proposition that "almost anything that indicates that a party is interested in the case will suffice" to trigger the ten-day notice requirement in ORCP 69 A(1).
The Bar reads too much into that statement in Morrow. By its terms, ORCP 69 A(1) requires notice to an opposing party only if the party has filed an appearance or provided written notice of an intent to file an appearance. The legal meaning of the word "appearance" is " coming into court as a party" or " formal proceeding by which a defendant submits himself to the jurisdiction of the court." Black's Law Dictionary, 97 (6th ed 1990).
Burke's letter to the accused stating that she was opposed to paying costs was not an "appearance" as that term is used in ORCP 69 A(1). The accused was not required to serve Burke with notice that he intended to apply for a default judgment. See ORCP 9 A (no service required on parties in default for failure to appear). Because an exception to the general rule requiring notice was "authorized by law," the accused did not violate DR 7-110(B).
B. Collins Matter
1. DR 1-102(A)(3) and DR 7-102(A)(5)
As we have discussed above, a lawyer commits professional misconduct by knowingly engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. DR 1-102(A)(3). The misrepresentation must be material. Moreover, in representing a client or the lawyer's own interests, the lawyer shall not " nowingly make a false statement of law or fact." DR 7-102(A)(5).
The Bar contends that the accused knowingly caused the trial judge in the Collins matter to sign an order containing a provision that the judge had not considered regarding the pretrial and trial dates in Collins v. Harbertson. The accused does not respond.
At the trial panel hearing, the accused testified that he recalled hearing the judge mention that he wished to change the pretrial conference and trial dates in Collins v. Harbertson. Harberton's lawyers testified that the judge had made no such statement. Assessing the witnesses' testimony, which was the only evidence regarding those charges, we agree with the trial panel that the accused knowingly misrepresented the judge's intent regarding the scheduling of Collins v. Harbertson. The misrepresentation was material in that it affected the judge's decision-making process about the scheduling of the trial. The accused violated DR-102(A)(3) and DR 7-102(A)(5).
We agree with the trial panel's finding that the accused made a knowing misrepresentation to two Washington County judges when he stated that Johnston and Brisbee had made no effort to notify him before filing the motion to quash the accused's subpoena. Even assuming that the accused did not receive either Johnston's voice mail message or the facsimile, the record nonetheless establishes that Johnston and Brisbee attempted to consult with the accused through Morrow, and that the accused's contrary assertion was a knowing misrepresentation in violation of DR 1-102(A)(3) and DR 7-102(A)(5).
2. DR 1-102(A)(4)
Our finding that the accused made misrepresentations in violation of DR 1-102(A)(3) establishes that the accused did something that he was not supposed to do, thus satisfying the first prong of the
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