False Statement Draws Two Year Suspension

The Oregon Supreme Court has suspended an attorney for two years for a false statement to a tribunal in a domestic relations matter

The accused made his first appearance in the matter as attorney of record when he filed a Motion to Vacate Default Judgment on husband’s behalf on March 7. The accused based his motion on ORCP 69 B(2), which requires a party to file and serve notice of the intent to apply for an order of default at least 10 days before applying for the order, if the opposing party or the party’s counsel has previously provided written notice of intent to appear. The accused attached to that motion a declaration in which he stated, “I provided to counsel for Petitioner written notice of intent to appear in [this] action on January 29, 2014.” The accused, however, did not attach as an exhibit to the declaration any written notice of intent to appear.

Opposing counsel contended that an email used in a motion to show the date was fabricated

The court granted the accused’s motion to vacate. The court declined to make a finding that the email was fraudulent and asked the accused to find the email in electronic form and forward it to [opposing counsel] Claar. The accused never did so. The parties subsequently settled the dissolution matter.

He then filed a bar complaint

A Bar technology expert, Johnson, examined the purported email and concluded that it had not been sent. As Johnson later testified before the trial panel, the fact that the email had not been sent was evident from its formatting.

And the accused’s attorney own technology expert chimed in with this rather unhelpful nugget

When a trial panel member asked Englen whether, in his opinion, the purported January 29 email could have been fabricated intentionally, Englen responded, “Completely, yeah, absolutely. * ** No doubt, this could be completely totally made up.”

The court

Having reviewed de novo all the evidence in this case, which we have summarized above, we agree with the trial panel and conclude that there is clear and convincing evidence that the accused violated RPC 3.3(a)(1) (making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer); RPC 3.4(b) (falsifying evidence); RPC 8.4(a)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law); and RPC 8.1(a)(1) (knowingly making a false statement of material fact in connection with a disciplinary matter). Further recitation of the factual bases for our independent conclusion would not benefit the bench, the Bar, or the public. Because, as noted, neither party has challenged the appropriateness of the sanction, we also conclude that a two-year suspension is appropriate.

(Mike Frisch)