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In re Dugger9/26/2002
srepresentations under oath during the January hearing regarding his exchanges with the judge at the November hearing. The accused responds, first, that the Bar should not be permitted to "bootstrap" the alleged offenses in the Vu matter by charging him twice for essentially the same conduct. With respect to the accused's conduct at the November hearing, he contends that the evidence does not demonstrate that he committed any ethical violations.
We reject the accused's contention that the Bar's charges in the Vu matter involve "bootstrapping." The complaint alleges that the accused made misrepresentations to two different judges in two different proceedings. The factual predicates for the Bar's charges in the two proceedings are different, as we discuss in more detail below.
1. November Hearing.
The Bar alleges that the accused made three misrepresentations to the court at the November hearing. First, the Bar contends that the accused represented to the court that the alleged incident between Conner and Boxberger had occurred the weekend before the hearing, even though the accused knew from Vu's affidavit that the incident had occurred almost two weeks before the hearing.
By making the statements, quoted above, that there "was some action over the weekend" and that the situation had "just [come] up," the accused created the impression that the incident with the gun had occurred the weekend immediately before the November hearing. In fact, the evidence demonstrates that the only altercation between Conner and Boxberger involving a gun had occurred almost two weeks before that hearing. We are convinced that the accused knew that his statement was a misrepresentation, because the accused had prepared Vu's affidavit the same day as the ex parte hearing, and the affidavit stated that the incident had occurred on November 3. Moreover, the accused knew that his misstatement was material, because the accused knew that, to obtain a restraining order, he needed to convince the judge that there was an emergency. In the context of a hearing for a temporary restraining order, such a misstatement "could or would influence significantly [a judge's] decision-making process." Benett, 331 Or at 277.
Second, the Bar contends that the accused made a misrepresentation when he stated that " here is no defense yet" in response to the judge's question whether the accused had told Conner or his lawyer that the accused was going to apply for an order. The accused admits that that statement displayed "a lack of candor." Also, at the time that he made the statement, he believed that Conner was represented by a lawyer. Moreover, the accused knew that his misrepresentation was material, because it is apparent that, in the context of a hearing for a temporary restraining order, a statement that the opposing party is not represented could influence the judge's decision whether to issue the order.Tr 232
In sum, we conclude that the Bar proved by clear and convincing evidence that the accused made two material misrepresentations of fact during the November hearing, in violation of DR 1-102(A)(3). The judge relied on the accused's misrepresentations, thus making them prejudicial to the administration of justice, in violation of DR 1-102(A)(4).
2. January Hearing.
The Bar contends that the accused made the following material false statements under oath at the January hearing by testifying that: (1) the judge who presided over the November hearing had not asked him if he had contacted Conner or Conner's lawyer; (2) he had not told the judge at the November hearing that the confrontation between Conner and Boxberger had occurred the weekend before th
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