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In re Complaint as to the Conduct of Eadie12/6/2001
three-pronged test for finding a violation of DR 1-102(A)(4), described earlier in this opinion. See Gustafson, 327 Or at 643 (summarizing three-pronged test). The accused's conduct occurred during the course of a judicial proceeding in the case of Collins v. Harbertson, thereby satisfying the second prong. The proposed order that the accused submitted to the judge changing the pretrial and trial dates contained a misrepresentation that was calculated to induce the judge to acquiesce to a trial date that the accused preferred. Changing the trial date substantially harmed the administration of justice, satisfying the third -- or prejudice -- prong. The accused's misrepresentation made it necessary for the judge to resolve the dispute that arose as a result of the accused's misrepresentation and to redraft his order. See In re Meyer (I), 328 Or 211, 214, 970 P2d 652 (1999) (harm under DR 1-102(A)(4) can occur when procedural functioning of a case or hearing is impaired; harm may be actual or potential). The accused violated DR 1-102(A)(4).
3. DR 7-110(B)
As previously noted, DR 7-110(B) provides that, 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."
The Bar contends that the accused violated that rule by failing to serve opposing counsel with his written motion to disqualify the trial judge. The motion was "on the merits" in Collins v. Harbertson. The accused does not dispute that he filed a written motion on the merits. However, he contends that he filed his motion to disqualify under ORS 14.270 and that nothing in that statute requires service "upon anyone or any entity other than the court."
The accused's reliance on ORS 14.270 is misplaced. That statute provides that, under certain circumstances, notice to the court may be oral. The statute creates no exception to the general rule regarding service of a written motion on opposing counsel. See ORCP 9 A (unless excepted by rule, "every written motion * * * shall be served upon each of the parties"). The accused violated DR 7-110(B) by failing to serve notice of the written motion to disqualify on opposing counsel.
C. The Cassady Matter
1. DR 6-101(A)
A lawyer must provide "competent representation to a client," which requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." DR 6-101(A). This court has held that determining whether a lawyer acted incompetently, in violation of that rule, is a fact-specific inquiry:
"The question whether a lawyer has competently represented a client is, of course, a fact-specific inquiry. A review of this court's cases shows that incompetence often is found where there is a lack of basic knowledge or preparation, or a combination of those factors.
"In contrast, lawyers have been found not guilty of providing incompetent representation where the lawyers showed experience and professional ability to perform work, or where the Bar failed to prove that a position taken by the lawyer was 'advanced in pretense or bad faith, or in culpable ignorance.' In sum, competence or incompetence can best be measured on a case-by-case basis using the standard stated in DR 6-101(A) itself." In re Gastineau, 317 Or 545, 553-54, 857 P2d 136 (1993) (footnote and citations omitted).
In its cause of complaint, the Bar alleged that the accused failed to represent Cassady competently at
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