The opinion
180
Argued and submitted November 3; respondent is suspended from the practice
of law for one year, effective 60 days from the date of this decision
December 30, 2021
In re Complaint as to the Conduct of
MARLIN ARD,
OSB No. 931453,
Respondent.
(OSB 19-93) (SC S068497)
501 P3d 1036
The Oregon State Bar (Bar) alleged that respondent violated Rule of Pro-
fessional Conduct (RPC) 8.4(a)(4), which prohibits conduct prejudicial to the
administration of justice, by making false certifications in a court filing, initi-
ating unwarranted proceedings, and acting improperly in other respects during
litigation. A trial panel of the Disciplinary Board agreed and imposed a one-year
suspension, and respondent sought review. Held: (1) The Bar sufficiently alleged
that respondent had made false certifications in a court filing, although it did not
sufficiently allege other misconduct; (2) the Bar proved by clear and convincing
evidence that respondent violated RPC 8.4(a)(4), when he made two false certi-
fications in a court filing, filed a judicial fitness complaint against a judge who
had ruled against him, and also filed a federal action against that same judge,
alleging judicial misconduct and bias; and (3) a one-year suspension is the appro-
priate sanction.
Respondent is suspended from the practice of law for one year, effective
60 days from the date of this decision.
En Banc
On review of the decision of a trial panel of the Disciplinary
Board.
Marlin D. Ard, Sisters, argued the cause and filed the
brief pro se.
Rebecca M. Salwin, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State
Bar.
PER CURIAM
Respondent is suspended from the practice of law for one
year, effective 60 days from the date of this decision.
Cite as 369 Or 180 (2021) 181
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar (Bar) alleged that respondent engaged in a sin-
gle violation of Rule of Professional Conduct (RPC) 8.4(a)(4),
which prohibits conduct prejudicial to the administration
of justice, by making false certifications in a court filing,
initiating unwarranted proceedings, and acting improp-
erly in other respects during litigation. A trial panel of the
Disciplinary Board agreed with the Bar and imposed a one-
year suspension. In seeking review under ORS 9.536(1) and
Bar Rule of Procedure (BR) 10.1, respondent asserts that
the Bar’s complaint was deficient and should be dismissed
and that, in any event, the Bar did not prove the alleged
violation. We conclude that the Bar sufficiently alleged a vio-
lation of RPC 8.4(a)(4), that respondent violated that rule of
professional conduct, and that a one-year suspension is the
appropriate sanction.
I. FACTS AND PROCEDURAL BACKGROUND
Respondent is a lawyer in Sisters. He was admitted
to the California Bar in 1976 and the Oregon Bar in 1993,
but he no longer has a regular law practice. His Oregon
license has been in “active pro bono” status since 2012. With
that status, he is exempt from the requirement to carry mal-
practice coverage through the Professional Liability Fund
(PLF),1 and he may represent clients only through a certi-
fied pro bono program that provides coverage. The under-
lying facts, set out below, arose from respondent’s pro bono
representation of a high school coach, whose contract had
not been renewed, in two state court actions against sev-
eral parents and the school district, a federal action against
a Deschutes County Circuit Court judge and others, and a
related judicial fitness complaint against the judge.
A. The 2012 and 2014 State Court Actions
Respondent’s client, Goertzen, had been a success-
ful girls’ soccer coach at Sisters High School, but some par-
ents were concerned about his coaching style and thought
1
The PLF is a lawyers’ liability insurance fund that the Bar has established
under ORS 9.080(2) and ORS 9.191(3).
182 In re Ard
that his contract should not be renewed. After the school cir-
culated a survey to parents and players, intended to assess
Goertzen’s job performance, the school district decided not
to renew his contract.
In 2012, Goertzen—then represented by a differ-
ent lawyer—sued the school district and three parents (the
Stewarts and Young) in Deschutes County Circuit Court
(“2012 action”). That court dismissed Goertzen’s claims
against the parents under Oregon’s anti-SLAPP statutes
and issued a limited judgment that awarded them almost
$24,000 in statutory attorney fees and costs.2 In seeking that
result, the Stewarts each filed a declaration in which they
denied having any involvement in the decision not to renew
Goertzen’s contract or having ever asked school or district
officials to terminate Goertzen or not to renew his contract.
Goertzen’s lawyer appealed the judgment of dismissal and
attorney fee award in spring 2013, and the Court of Appeals
affirmed without opinion about a year later. Respondent
began representing Goertzen while the appeal was pend-
ing, but he did not appear as counsel for Goertzen in the
appeal.
Rather, in January 2014, respondent filed a new
action in Deschutes County Circuit Court on Goertzen’s
behalf against the school district and two other parents,
a married couple, Moore and Corrigan (“2014 action”). He
raised claims that one of the defense lawyers characterized
as “virtually identical” to those at issue in the 2012 action.
At that time, respondent had not yet received a referral from
a certified pro bono program; he later obtained one from
Legal Aid Services of Oregon (LASO).
In defense, Moore and Corrigan relied on the anti-
SLAPP statutes, filing identical declarations in which they
each expressly denied creating the survey; having been
2
A defendant in certain tort actions may file a special motion to strike
under ORS 31.150(1) that, if granted, removes the defendant from the case on
the ground that the alleged tortious conduct constituted protected speech in con-
nection with a public issue or an issue of public interest. See Neumann v. Liles,
358 Or 706, 723, 369 P3d 1117 (2016) (explaining Oregon’s anti-SLAPP statutory
scheme (Strategic Lawsuit Against Public Participation) and describing its expe-
dited procedure). Subsection (3) of that statute requires that a successful defen-
dant be awarded reasonable attorney fees and costs.
Cite as 369 Or 180 (2021) 183
consulted about the creation, adoption, or use of a survey;
suggesting that a survey or any other evaluation tool be
used; or having any understanding as to when or where
the survey was created or adopted, or how it originated. In
August 2014, the trial court issued a limited judgment that
dismissed those parents from the 2014 action—on the same
grounds as in the 2012 ruling—and ordered Goertzen to
pay them more than $24,000 in statutory attorney fees and
costs. Goertzen did not appeal.
Meanwhile, through discovery in Goertzen’s ongo-
ing claims against the school district, respondent discovered
information that he thought called into question the verac-
ity of all the declarations described above, in both the 2012
and 2014 actions. That information included two emails.
The first was an email from Moore to the principal, Hosang,
encouraging him to circulate a survey about Goertzen more
broadly, so as to obtain fair and complete results; endorsing
the notion of the survey to collect input about coaches; and
noting her impression that the survey would determine the
future of the coach position. The second was an email from
Hosang to the school district’s superintendent, stating that
the survey had “come from” Ms. Stewart and that the “soc-
cer folks” had “push[ed] for” the survey; referring to “accu-
sations” of unstated origin that Ms. Stewart and Moore had
“manipulated” other parents; and acknowledging that the
survey had been a “huge contributing factor” in his deci-
sion to not extend Goertzen’s contract. Respondent also
learned that Moore had requested a meeting with Hosang,
and, after reviewing completed anonymous surveys, he
identified several statements that he attributed to various
parent-defendants.
As a result, respondent notified the lawyer for the
parents in the 2014 action, Rodrigues, that he intended to
seek to vacate the earlier limited judgment because he had
discovered new information, describing the information just
summarized. Respondent further asserted that the parents
had engaged in fraud and misrepresentation in obtaining
the judgment. Rodrigues responded that respondent’s “evi-
dence” fell far short of the standard necessary to vacate the
judgment and that, should respondent pursue additional
litigation without any legitimate legal or factual basis,
184 In re Ard
Rodrigues’s clients—Moore and Corrigan—would seek all
available remedies.
In August 2015, respondent then filed three
motions—two in the 2012 action and one in the 2014 action—
to vacate the limited judgments previously entered in favor
of all the parents. Respondent’s motions claimed that the
limited judgments had been obtained by a “fraud upon the
Court” and that Goertzen was entitled to relief. His motion
in the 2014 action further claimed that Moore and Corrigan
had engaged in fraud, misrepresentation, or other miscon-
duct. See generally ORCP 71 B(1) (court may relieve party
from judgment due to “newly discovered evidence” that could
not with due diligence have been discovered in time to move
for new trial; or due to fraud or misrepresentation); ORCP
71 C (court has inherent authority to set aside a judgment
for “fraud upon the court”). In two of those motions—as
to the 2014 action and the Stewarts in the 2012 action—
respondent cited “newly discovered” evidence that included
some anonymous survey responses that he attributed to
parents in both actions, as well as the email from Hosang to
the superintendent. In his motion in the 2014 action, he also
relied on the email from Moore to Hosang.
In those motions to vacate, respondent mischarac-
terized the content of several parents’ earlier declarations,
and he surrounded discussion of his newly discovered evi-
dence with additional recitations that extrapolated from that
evidence and, in some instances, mischaracterized it.3 In his
motion in the 2014 case, respondent specifically claimed that
both parents had not been truthful in their declarations. He
asserted that Moore’s declaration was demonstrably false
in light of his new evidence; that Corrigan’s was suspect
because he had been married to Moore at the time and was
a teacher at the school; and that, due to Corrigan’s teaching
status, both Moore and Corrigan had been in a fiduciary
relationship with Goertzen, which they had violated.
3
For example, respondent inaccurately asserted that his newly discovered
evidence showed that Moore had “collaborat[ed]” in creating the survey and that
Moore’s declaration had denied any knowledge of the survey; and he inaccurately
characterized his evidence as showing that the Stewarts had “used” the survey
to tell school officials, “in clear terms,” to fire Goertzen.
Cite as 369 Or 180 (2021) 185
All the parents opposed respondent’s motions, and
the matters proceeded to hearings before different judges.
All three motions were denied.
Following those rulings, Rodrigues sought attorney
fees and costs on behalf of his clients in the 2014 action,
as well as sanctions against respondent under ORCP 17 D,
arguing that he had made false certifications in his motion
to vacate. See ORCP 17 C (lawyer is deemed to make certain
certifications when filing signed documents, including that
the filing is not for an improper purpose, that the claims and
legal positions are warranted by existing law, and that any
allegation or factual assertion is supported by evidence). In
his motion for fees and sanctions, Rodrigues identified many
assertions that respondent had made in his motion to vacate
that were not supported by any “new evidence,” and, in a
later filing, he cited earlier judicial decisions determining
that the underlying claims against the parents were “with-
out merit.”
In April 2016, Judge Bagley of the Deschutes County
Circuit Court granted Rodrigues’s motion and imposed
sanctions in the 2014 action against respondent person-
ally, for attorney fees and costs totaling more than $10,000.
In a letter opinion, she specifically reasoned that, in his
motion to vacate, respondent had falsely certified that his
allegations of fraud, perjury, and false statements had been
supported by evidence and warranted by existing law; she
also determined that respondent had falsely certified that
he had not presented his motion for any improper purpose.
Judge Bagley added that respondent had filed his motion
“with wanton disregard for the verity and substance of the
assertions made therein.” Shortly after that ruling, respon-
dent submitted a proposed form of judgment that incorrectly
showed both Goertzen and respondent as judgment debtors.
Judge Bagley eventually entered a new limited judgment
and money award in the 2014 action in the parents’ favor,
against respondent only.
Representing Goertzen, respondent appealed the
trial court’s order in the 2012 action that had denied his
motions to vacate, and, representing both Goertzen and
himself, he also appealed the new limited judgment in the
186 In re Ard
2014 action that had imposed sanctions against him per-
sonally. Both rulings were affirmed on appeal without opin-
ion. By March 2018, the only outstanding appellate issue
in both actions involved attorney fees and costs owed to the
parents, including any newly incurred on appeal. The Court
of Appeals referred that issue to the Appellate Settlement
Conference Program for mediation. In the meantime, the
PLF had become concerned about potential malpractice
liability arising from respondent’s continued representa-
tion of Goertzen, and so both the PLF and LASO’s insurer,
Hanover, became involved in the mediation.
Later in 2018, the issue of attorney fees and costs
was settled at a mediation that involved the following par-
ticipants: respondent and Goertzen, all the parents, LASO
and Hanover, and the PLF. The mediation resulted in execu-
tion of a settlement agreement under which (1) the parents
agreed to accept $120,000 paid by the PLF and Hanover
(which, for at least some of the parents, amounted to about
one-half of the amounts personally spent in the actions),4
to withdraw all pending fee petitions, and to file satisfac-
tions of judgment; (2) respondent and Goertzen agreed not
to pursue any new action against the parents arising out of
the same facts or seek review of the Court of Appeals deci-
sions; (3) Goertzen released respondent, the PLF, LASO,
and Hanover from any claim relating to respondent’s work;
and (4) the PLF and Hanover mutually released all claims
against each other. The agreement also contained a clause
stating that it represented “a full and final settlement of
all claims, rights and damages which the parties hereto
now have or may have against each other.” On the signa-
ture page, the PLF was identified as the “Oregon State Bar
Professional Liability Fund.”
Although the Court of Appeals repeatedly resolved
all issues on the merits in the appeals in the parents’ favor,
respondent characterizes the settlement as affirming the
soundness of his conduct. According to respondent, the
4
From the $120,000 award, different amounts were allocated to different
groups of parents. As noted earlier, the 2012 action already was pending on appeal
when respondent began representing Goertzen, so those parents had incurred a
portion of their attorney fees and costs before respondent became involved in the
action.
Cite as 369 Or 180 (2021) 187
settlement (1) “eliminat[ed] and prevent[ed] any enforce-
ment of over $200,000 in unlawful judgments wrongfully
entered” against Goertzen, with neither respondent nor
Goertzen incurring personal financial responsibility, and
(2) reflected that the PLF and LASO had recognized that he
had been “fully justified” in continuing litigation.5
B. The 2019 Proceedings Initiated Against Judge Bagley
Meanwhile, respondent remained dissatisfied with
Judge Bagley’s rulings, and he initiated two proceedings
against her, claiming judicial misconduct and bias arising
from the following alleged facts: (1) she was friends with
Moore and (2) she had directed Rodrigues, in an ex parte
conversation, to move for sanctions against respondent in
the 2014 action. In early 2019, respondent filed a judicial fit-
ness complaint about Judge Bagley with the Commission on
Judicial Fitness and Disability (commission), which, after
considering a response from Judge Bagley, summarily dis-
missed that complaint.
Also, in February 2019, respondent filed a civil
rights action in federal court on Goertzen’s behalf, alleg-
ing judicial misconduct and bias against Judge Bagley, the
Deschutes County Circuit Court, and Deschutes County.
In that complaint—which sought $1.25 million in dam-
ages from each defendant—respondent alleged the two
facts noted above involving Bagley, Moore, and Rodrigues.
As to Moore, respondent relied on LinkedIn social media
webpages that he claimed supported his allegation that
Judge Bagley and Moore knew each other, were friends,
and had exchanged email addresses and communicated on
social media. After Judge Bagley’s counsel unsuccessfully
attempted to persuade respondent to dismiss, citing judi-
cial immunity principles, Judge Bagley moved for dismissal,
which generated additional responsive filings. Eventually,
after working with his own counsel (apparently referred to
him by the PLF), respondent and the defendants stipulated
to a dismissal with prejudice. When respondent filed the
5
As for Goertzen’s litigation against the school district, his claims in the
2012 action were dismissed, as were most of his claims in the 2014 action, follow-
ing a summary judgment ruling in the district’s favor (affirmed on appeal). The
parties also settled two claims in the 2014 action.
188 In re Ard
2019 action against Judge Bagley, he did not have a referral
from a certified pro bono program, although he did obtain
one—from the federal court’s own program—two months
later, before the dismissal.
C. Initiation of Disciplinary Proceedings, Bar Complaint,
and Trial Panel Hearing
The Bar filed a formal complaint in February 2020
and an amended complaint in August 2020. The Bar’s
amended complaint alleged a single violation of RPC 8.4(a)(4)
(conduct prejudicial to the administration of justice), arising
from various facts described above, including respondent
making false certifications in his motion to vacate the 2014
action; initiating the two proceedings against Judge Bagley;
and representing Goertzen without a pro bono referral.
The disciplinary matter proceeded to a hearing
before a trial panel. After hearing from respondent and
multiple witnesses, the panel concluded that the Bar had
proved its alleged violation of RPC 8.4(a)(4) by clear and
convincing evidence, based on multiple instances of mis-
conduct.6 Although the Bar had requested only a 60-day to
90-day suspension, with formal reinstatement, the panel
ordered a one-year suspension, emphasizing what it char-
acterized as respondent’s “five-year saga of frivolous and
destructive litigation” against the parents; his refusal to
acknowledge the wrongfulness of his conduct; and his “ends-
justify-any-means attitude towards his obligations as an
attorney[.]”
II. PRELIMINARY MATTERS
We begin by addressing three challenges that
respondent has raised to various aspects of this lawyer dis-
ciplinary proceeding. None are well taken.
A. Implications of Earlier Settlement Agreement
Respondent’s first challenge is based on the settle-
ment agreement that resolved the 2012 and 2014 actions
6
As we later discuss in more detail, the trial panel based its conclusion that
respondent had violated RPC 8.4(a)(4) on several grounds with which we agree,
as well as additional grounds that we do not consider because the Bar did not
sufficiently allege them in its complaint.
Cite as 369 Or 180 (2021) 189
on appeal. Quoting from that agreement, respondent rea-
sons that (1) all “parties” thereto—including the PLF—
had agreed to “expressly waive and relinquish any and all
rights” under any contrary law; (2) on the signature page, the
PLF was identified as the “Oregon State Bar Professional
Liability Fund”; and, therefore, (3) the agreement precluded
the Bar from initiating any disciplinary proceeding against
him. The trial panel rejected that argument for several rea-
sons. Most notably, the panel observed that the PLF is a sep-
arate legal entity from the Bar and so the PLF’s execution
of the agreement—which included provisions barring future
claims for damages—neither bound the Bar nor precluded
the Bar from initiating this proceeding. We agree and reject
respondent’s argument for the same reason.
B. Facts Involving Bar’s Disciplinary Counsel
Respondent’s second challenge is based on facts
involving the Bar’s Disciplinary Counsel at the time of the
Bar’s investigation, Evans. Respondent raises two different
issues, one an evidentiary issue and the other a discovery
issue.
The evidentiary issue involving Evans concerns a
draft stipulation for discipline. Before the trial panel hear-
ing, Evans had engaged respondent about executing a draft
stipulation for discipline, but respondent never did so. See
generally BR 3.6 (discipline by consent). Respondent argued
below, and again argues on review, that the unexecuted
draft stipulation amounted to an admission from Evans
that he had not violated any ethical rule. The trial panel
adjudicator refused respondent’s request to consider the
draft stipulation and granted a motion in limine from the
Bar to exclude it from the evidence at the trial panel hear-
ing. The adjudicator reasoned that the draft stipulation was
similar to an offer of compromise in civil litigation, which is
not admissible into evidence under OEC 408, so as to permit
the full and free disclosure of information between parties
to reach settlement, without prejudicing any position that
might later be taken. Although the Oregon Evidence Code
does not apply to Bar disciplinary proceedings, In re Barber,
322 Or 194, 206, 904 P2d 620 (1995), provisions of the code
can be instructive depending on the circumstances. We
190 In re Ard
agree with the adjudicator’s reasoning and do not consider
the stipulation on review.
The discovery issue involving Evans concerns a pre-
hearing attempt by respondent to depose her. Respondent
had issued a subpoena to Evans, who by then had retired
from the Bar and moved out of state. On motion from the
Bar, the adjudicator quashed the subpoena, reasoning in
part that respondent had provided no legitimate grounds
for seeking discovery from Evans.7 Respondent challenges
that ruling and argues that his inability to depose Evans—
and the Bar’s and the adjudicator’s “deliberate[ ] and inten-
tional[ ] shield[ing]” of her, such that she would not be
“required to explain her conduct, investigation[,] and * * *
findings”—violated his due process rights.
The crux of respondent’s complaint is that, because
Evans was the official responsible for the Bar’s investiga-
tion, she was a critical witness whom he should have been
permitted to depose. We agree with the trial panel, however,
that nothing about the Bar’s allegations against respondent
concerned Evans’s investigation—rather, the allegations
concerned facts that occurred in the course of the 2012
and 2014 actions and the two proceedings initiated against
Judge Bagley. Stated another way, the percipient witnesses
were those with direct knowledge of facts relating to those
proceedings, not Evans. The adjudicator did not err in
quashing the subpoena.
C. Sufficiency of False Certifications Allegation
Third, respondent raises a procedural challenge
to the sufficiency of one part of the Bar’s complaint—
specifically, to its allegation that he made false certifications
when he filed his motion to vacate the limited judgment in
the 2014 action. Respondent contends that the allegation
was insufficiently specific as a matter of law and that the
complaint against him therefore should be dismissed in its
entirety. He filed a motion to dismiss in this court—which
remains pending—based on that same reasoning.
7
The adjudicator further reasoned that respondent had not followed avail-
able procedures to subpoena an out-of-state witness.
Cite as 369 Or 180 (2021) 191
As to false certifications, the Bar alleged in para-
graph 7 of its complaint that respondent had filed a motion
to vacate the limited judgment entered in the 2014 action
and that, in doing so, he falsely certified that (1) his allega-
tions were supported by evidence; (2) his claims were war-
ranted by existing law; and (3) his motion was not being pre-
sented for any improper purpose. And in paragraph 8, the
Bar further alleged that the trial court had denied respon-
dent’s motion to vacate and, in April 2016, entered a letter
opinion awarding fees and costs against him for his conduct.
Respondent contends that the Bar was required to
set out the “specific language setting forth the alleged false
certification.” (Emphasis in original.) He relies on ORCP 17,
which provides, in part, that, in raising a claim, filing a docu-
ment, or making an argument, an attorney certifies that the
allegations and claims are supported by both evidence and
existing law and are not being presented for any improper
purpose.8 That rule, respondent continues, required the
Bar to set out the “exact words” that constituted the alleged
false certifications. We disagree that the Bar was required—
under ORCP 17 or otherwise—to specifically describe the
false certifications in the manner that respondent contends,
such that its failure to do so requires dismissal.
8
ORCP 17 C provides, in part:
“C(1) An attorney or party who signs, files or otherwise submits an argu-
ment in support of a pleading, motion or other document makes the certi-
fications to the court identified in subsections (2) to (5) of this section, and
further certifies that the certifications are based on the person’s reasonable
knowledge, information and belief, formed after the making of such inquiry
as is reasonable under the circumstances.
“C(2) A party or attorney certifies that the pleading, motion or other doc-
ument is not being presented for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation.
“C(3) An attorney certifies that the claims, defenses, and other legal
positions taken in the pleading, motion or other document are warranted by
existing law or by a nonfrivolous argument for the extension, modification or
reversal of existing law or the establishment of new law.
“C(4) A party or attorney certifies that the allegations and other factual
assertions in the pleading, motion or other document are supported by evi-
dence. Any allegation or other factual assertion that the party or attorney
does not wish to certify to be supported by evidence must be specifically iden-
tified. The attorney or party certifies that the attorney or party reasonably
believes that an allegation or other factual assertion so identified will be
supported by evidence after further investigation and discovery.”
192 In re Ard
As explained earlier, ORCP 17 C became an issue
in the 2014 action because the parents had relied on that
rule in seeking sanctions against respondent relating to his
motion to vacate the limited judgment already entered in
their favor. As the parties invoking ORCP 17 C, the parents
bore the burden of identifying false certifications on respon-
dent’s part, which they addressed in detail in their motion
for sanctions.
Significantly, in its complaint, the Bar did not allege
that respondent had violated ORCP 17 C in a proceeding
in which the Bar was a party; neither did it allege that he
had made any false statement in violation of RPC 8.4(a)(3)
(prohibiting conduct involving dishonesty, deceit, or misrep-
resentation that reflects adversely on fitness to practice).
Rather, the Bar alleged that respondent had made false cer-
tifications in his motion to vacate in the 2014 action and
that, in doing so, he had engaged in conduct that was prej-
udicial to the administration of justice under RPC 8.4(a)(4).
Because the Bar—unlike Rodrigues in filing the motion for
sanctions—was not seeking to prove any violation of ORCP
17 C, it bore no burden to specifically identify respondent’s
purported false certifications, in the manner that respon-
dent contends.
Of course, the Bar is required to sufficiently allege
facts in connection with any allegation, to permit the respon-
dent lawyer “to know the nature of the charge.” BR 4.1(c); see
also In re Ellis/Rosenblum, 356 Or 691, 738-39, 344 P3d 425
(2015) (so explaining and setting out demonstrative cases
and applicable due process principles). Standing alone, a
bare allegation that respondent made false certifications
arguably would be insufficient. But, the Bar’s allegation in
this case did not stand alone.
Instead, the Bar added important context in its
complaint by also alleging that respondent had made the
false certifications in filing his motion to vacate in the 2014
action and that the trial court had “entered a letter opin-
ion awarding fees and costs against Respondent for his
conduct.” That letter opinion, which respondent possessed,
specifically described respondent’s claims of fraud, misrep-
resentation, and misconduct by the parents and his request
Cite as 369 Or 180 (2021) 193
for relief based on “newly discovered evidence”; referred to
the parties’ arguments made at a hearing on the sanctions
motion; and explained why Judge Bagley had determined
that respondent’s motion was not supported by evidence or
existing law and that his motion had been intended “to con-
tinue what has been vexatious litigation that is ill-supported
by facts or law,” rather than being filed for a proper purpose.
Those contextual references in the complaint put respon-
dent on notice of the nature of the Bar’s “false certifications”
allegation. We therefore reject respondent’s contention that
the Bar insufficiently alleged the nature of his false certi-
fications in the 2014 action, and we deny his motion to dis-
miss the Bar’s complaint.
III. MISCONDUCT ANALYSIS
A. Standards Relating to RPC 8.4(a)(4)
RPC 8.4(a)(4) provides that “[i]t is professional mis-
conduct for a lawyer to * * * engage in conduct that is preju-
dicial to the administration of justice[.]” That rule required
the Bar to establish three elements by clear and convincing
evidence: (1) respondent’s actions were improper; (2) his con-
duct occurred during the course of judicial proceedings; and
(3) his conduct had, or could have had, a prejudicial effect
upon the administration of justice. In re McGraw, 362 Or
667, 691, 414 P3d 841 (2018). The parties do not dispute that
all the alleged misconduct occurred during judicial proceed-
ings; thus, only the first and third elements of RPC 8.4(a)(4)
are at issue.
As to the first element, “[improper] conduct” means
doing something that a lawyer should not do (or, not appli-
cable here, refraining from doing something that the lawyer
should have done). See In re Haws, 310 Or 741, 746, 801 P2d
818 (1990) (so explaining, in context of former DR 1-102(A)(4));
see also, e.g., McGraw, 362 Or at 693 (improper conduct
included submitting abusive filings that required line-by-
line review and sending letters that disparaged a judge’s
integrity and competence); In re Paulson, 341 Or 13, 29, 136
P3d 1087 (2006) (lawyer whose decisions continually placed
his clients in more vulnerable legal and financial positions,
and who ignored or violated procedural rules resulting in
194 In re Ard
more complicated, protracted, and expensive litigation,
engaged in improper conduct). As to the third element, a
prejudicial effect exists “when the lawyer’s conduct harms
(or has the potential to harm) either the substantive rights
of a party to the proceeding or the procedural functioning of
a case or hearing,” or both. In re Maurer, 364 Or 190, 199,
431 P3d 410 (2018); see also Haws, 310 Or at 747 (“[i]n con-
text, ‘prejudice’ means ‘harm’ or ‘injury’ ”). Prejudice can be
shown by several acts that cause some harm or by a single
act that causes substantial harm. McGraw, 362 Or at 692.
And prejudice can result from conduct that created unnec-
essary work for the court, had the potential to mislead the
court, or had the potential to disrupt or improperly influence
the decision-making process. In re Lawrence, 350 Or 480,
487, 256 P3d 1070 (2011).
This court previously has explained that RPC
8.4(a)(4) contains no express mental state requirement, In re
Carini, 354 Or 47, 57, 308 P3d 197 (2013), and “focuses on
the effect of the lawyer’s conduct, not on the lawyer’s intent,”
id. (quoting In re Stauffer, 327 Or 44, 59, 956 P2d 967 (1998)
(concerning predecessor rule, former DR 1-102(A)(4))). In this
case, as discussed below, the Bar proved that respondent
acted negligently in some respects and knowingly in others,
and we consider his state of mind primarily with respect to
the sanction for improper conduct under RPC 8.4(a)(4).
The Bar is required to prove the misconduct alleged
in its complaint by clear and convincing evidence. BR 5.2.
Our review is de novo. BR 10.6.
B. False Certifications
We begin with the Bar’s allegation that, when
respondent filed his motion to vacate the limited judgment in
the 2014 action, he made false certifications to the court. To
recap, the Bar alleged that respondent had filed the motion
to vacate in that action and that, in doing so, he falsely cer-
tified that his allegations were supported by evidence; his
claims were warranted by existing law; and his motion was
not being presented for any improper purpose. After review-
ing the record, we conclude that (1) respondent made at
least two false certifications in that motion to vacate; (2) his
conduct was improper for purposes of RPC 8.4(a)(4); and
Cite as 369 Or 180 (2021) 195
(3) his conduct had a prejudicial effect on the administration
of justice.
On de novo review of the record, it appears that
respondent was troubled by some of the information that he
obtained during discovery, which in turn prompted him to
draft and file his motions to vacate in both the 2012 and
2014 actions. Nonetheless, the record amply supports Judge
Bagley’s findings and conclusions in the 2014 action and
the trial panel’s findings and conclusions that, in filing his
motion, respondent falsely certified that his new allegations
and claims were supported by both fact and law.
By way of example, respondent stated in his motion
to vacate that Moore had “collaborat[ed]” in creating the sur-
vey, when none of his “evidence” supported that assertion.
He also characterized Moore’s earlier declaration as deny-
ing any knowledge of the survey, when, instead, Moore had
denied involvement in creating or having been consulted
about its creation, adoption, or use.9 And, notably, respon-
dent offered no affirmative evidence whatsoever supporting
his allegations against Corrigan: His lone allegation was
that Corrigan had been married to Moore and worked at the
school. At the trial panel hearing, respondent offered vary-
ing explanations for those aspects of his motion—such as,
the essential crux of the parents’ declarations had been that
they each had denied any “knowledge” of the survey, but
Moore clearly did know about it and Corrigan “absolutely”
had to have known about Moore’s related activity. But those
protestations did not amount to supporting evidence, and
respondent’s evidence and other related material set out
in his motion to vacate were riddled with inaccuracies. In
short, we agree with the Bar that, when respondent filed his
motion to vacate in the 2014 action, he falsely certified that
his allegations were supported by evidence. And, in addi-
tion to those unsupported factual allegations, respondent’s
motion to vacate the limited judgment lacked legal support:
9
The “evidence” on which respondent relied purportedly had showed that
Moore asked the principal to circulate the survey more broadly and had expressed
her impression that it would determine the coaching position. Even if true, that
“evidence” did not contradict Moore’s earlier statement denying involvement in
creation of the survey or having been consulted about its creation, adoption, or
use.
196 In re Ard
Even if respondent actually had evidence that Moore and
Corrigan had known more about, or had been more involved
with, the survey than previously claimed, that would not
have justified vacating the limited judgment dismissing
them from the 2014 action based on speech protected under
the anti-SLAPP statutes.10
It is a closer question whether respondent also falsely
certified that his motion to vacate the limited judgment in
the 2014 action was not filed for any improper purpose. As
noted, Judge Bagley concluded that respondent had filed
his motion with the intent to continue vexatious litigation
that was ill-supported by facts or law. The trial panel simi-
larly concluded that respondent’s motion lacked evidentiary
support and that respondent had acted with an improper
purpose. Certainly, the effect of respondent’s motion was to
extend ill-supported litigation, but respondent maintains
that Goertzen should not have lost his coaching position and
that his purpose in filing the motion was to carry out his
duty to provide zealous representation to his client.
In the end, we need not determine whether respon-
dent falsely certified that his motion in the 2014 action was
not filed for any improper purpose. We already have deter-
mined that he made two other false certifications in that
motion—that the allegations set out therein were supported
in both fact and law—and that conduct was improper for
purposes of RPC 8.4(a)(4). As established by ORCP 17 C, a
lawyer such as respondent should not have engaged in that
conduct. And, as explained, respondent’s motion to vacate
in turn required Rodrigues to file a motion for attorney fees
and sanctions, taking time to explain in detail the many
inaccuracies in respondent’s motion to vacate; it potentially
exposed Rodrigues’s clients to civil liability and additional
attorney fee expenses; and it required court time in process-
ing both lawyers’ motions and responsive filings, as well as
in holding hearings, evaluating the merits, and issuing rul-
ings. In short, respondent’s improper conduct in seeking to
10
Among other arguments, respondent asserted in his motion to vacate,
incorrectly, that the new evidence was material because the parents were in a
fiduciary relationship with Goertzen. As Judge Bagley concluded, the purported
newly discovered evidence “did not bear on any viable, substantive claim or
defense” in the 2014 action.
Cite as 369 Or 180 (2021) 197
revive the claims against the parents, undertaken during
a judicial proceeding, harmed “the procedural functioning”
of the case, Maurer, 364 Or at 199, and potentially harmed
the parents’ substantive rights. It therefore amounted to
conduct that was prejudicial to the administration of justice
under RPC 8.4(a)(4).
C. Proceedings Initiated Against Judge Bagley
Next, the Bar alleged that respondent had engaged
in improper conduct when he filed both the judicial fitness
complaint and the federal action against Judge Bagley.
As explained, respondent had alleged judicial misconduct
and bias based on factual assertions that Judge Bagley
had been friends with Moore and had directed Rodrigues,
in an ex parte conversation, to move for sanctions against
respondent.
No evidence in the record supports either factual
assertion, however. As to the claims about Moore, both
Judge Bagley and Moore emphatically denied at the trial
panel hearing that they knew each other or ever had com-
municated with each other, let alone ever were friends. And
respondent’s “evidence” to the contrary—a few LinkedIn
webpages—did nothing to counter that testimony; to the con-
trary, additional testimony showed that, at most, the pages
established that a person who had viewed Judge Bagley’s
public profile on LinkedIn also had viewed Moore’s profile.
As to the claims about Rodrigues, both Judge Bagley and
Rodrigues denied that such a conversation had occurred,
and, although respondent in part relied on Goertzen’s mem-
ory of a discussion along those lines with Rodrigues while
in Goertzen’s presence, Goertzen ultimately could not recall
any such discussion. In short, both proceedings lacked merit
from the outset.
Once filed, respondent’s judicial fitness complaint
required the commission to send a follow-up inquiry to
Judge Bagley; Judge Bagley to spend time responding; and
the commission then to spend time deliberating about how
to proceed. As noted, the commission summarily dismissed
the complaint. As to the federal action, Judge Bagley’s coun-
sel attempted to persuade respondent to voluntarily dismiss
198 In re Ard
in light of applicable principles of judicial immunity, but he
refused to do so. That prompted Judge Bagley’s counsel to
file a formal motion to dismiss and respondent to object—
which required court time and resources to process, in
addition to time and resources already expended to process
respondent’s ill-supported complaint and to issue a pro bono
referral.
We have little difficulty concluding that, in initiat-
ing both the judicial fitness complaint and the federal action
against Judge Bagley, respondent engaged in improper con-
duct during the course of a judicial proceeding that caused
substantial harm to Judge Bagley, as well as to the com-
mission and the federal court. Respondent’s conduct was
improper because he initiated both proceedings based on
allegations of judicial misconduct and bias unsupported
by any evidence. His conduct caused substantial potential
and actual harm to Judge Bagley—in attacking her judi-
cial integrity and disparaging her reputation—and also
caused harm in requiring her to respond to respondent’s
unsupported allegations. It also substantially harmed the
commission and the federal court, in terms of the time
and resources required to process and act on respondent’s
unwarranted filings. In short, respondent’s conduct in ini-
tiating the two proceedings against Judge Bagley violated
RPC 8.4(a)(4).
D. Pro Bono Representation Without Certified Program
Referral
In its complaint, the Bar identified one instance
in which respondent had represented Goertzen without a
pro bono referral that, it alleged, violated RPC 8.4(a)(4):
For two months in the 2019 federal action against Judge
Bagley—the period between filing the complaint and his
securing of a referral for his representation from a cer-
tified pro bono program (the federal court program)—
respondent represented Goertzen without any referral.11
At the trial panel hearing, other than confirming with
11
As recounted earlier, respondent also apparently filed the 2014 action on
Goertzen’s behalf before securing a referral from a certified pro bono program (in
that case, LASO). The Bar did not make any misconduct allegation relating to
that representation in its complaint, however.
Cite as 369 Or 180 (2021) 199
respondent the facts just summarized, the Bar did not pres-
ent any evidence about how his representation of Goertzen
without a referral may have prejudiced the administra-
tion of justice, and, importantly, the Bar does not pursue
that allegation on review. We therefore do not address it,
although we observe that, without a proper referral from a
pro bono program, respondent initiated an action without
malpractice insurance and outside the scope of his license.
E. Submission of Erroneous Proposed Form of Judgment
As noted, after Judge Bagley issued her letter opin-
ion imposing sanctions on respondent in the 2014 action,
respondent submitted a proposed form of judgment that
incorrectly identified both respondent and Goertzen—rather
than respondent alone—as judgment debtors. In its com-
plaint, the Bar alleged that that submission had violated
RPC 8.4(a)(4). On de novo review, however, we conclude that
the Bar did not prove by clear and convincing evidence that
respondent’s submission of that form of judgment amounted
to anything other than a drafting error—as opposed to
improper conduct that prejudiced the administration of
justice.
F. Other Conduct Relating to the 2012 and 2014 Actions
Finally, the Bar highlights what it describes as
additional misconduct by respondent in the 2012 and 2014
actions: moving to vacate the limited judgment in the 2012
action; appealing the resulting adverse ruling without
reasonable grounds; and appealing Judge Bagley’s order
awarding sanctions in the 2014 action (again, purportedly
without reasonable grounds). The Bar relatedly contends
that respondent made false statements on appeal, and it
suggests that the 2014 action itself was improper. We con-
clude that those instances were not sufficiently alleged as
misconduct in the Bar’s complaint.
As already explained, under BR 4.1(c), the Bar must
allege sufficient facts in connection with its charged allega-
tions to permit the respondent lawyer “to know the nature
of the charge.” See BR 4.1(c). As to the Bar’s additional con-
tentions, its complaint fell short of that standard. The com-
plaint did allege relevant historical facts—describing that
200 In re Ard
(1) Goertzen had filed the 2012 action and had appealed the
dismissal of the parents as defendants; (2) respondent had
filed the 2014 action with a similar adverse result as in the
2012 action; (3) respondent had moved to vacate the limited
judgment in the 2012 action and appealed that adverse rul-
ing (which was affirmed without opinion); and (4) respon-
dent had appealed Judge Bagley’s ruling imposing sanctions
(also affirmed without opinion). Then, in a later paragraph,
the complaint alleged generally that all the foregoing “con-
duct” was improper, occurred during judicial proceedings,
and caused harm or had the potential to cause harm to the
administration of justice and opposing parties—i.e., violated
RPC 8.4(a)(4). That general allegation pertained, in part, to
conduct undertaken by others, not respondent. And nowhere
in its complaint did the Bar describe why or how any par-
ticular conduct on respondent’s part in connection with the
actions just described amounted to improper conduct that
had, or could have had, a prejudicial effect on the adminis-
tration of justice.
Therefore, those allegations can be read as pre-
senting historical facts that provide context for the allega-
tions of misconduct that the Bar clearly identified as vio-
lations of RPC 8.4(a)(4); at best, they are ambiguous as to
whether the Bar was relying on them as violations of the
rule. Because the Bar’s complaint did not provide sufficient
notice to respondent that any additional conduct, beyond
what we already have addressed, was the basis for any RPC
8.4(a)(4) violation, we do not consider any of that conduct in
our analysis of the alleged rule violation or the appropriate
sanction.
In sum, on the merits of the Bar’s complaint that
respondent violated RPC 8.4(a)(4), we conclude that respon-
dent engaged in the following instances of misconduct that
prejudiced the administration of justice: making two false
certifications in his motion to vacate the limited judgment
entered in the 2014 action; filing the judicial fitness com-
plaint against Judge Bagley; and filing the federal action
against Judge Bagley, the Deschutes County Circuit Court,
and Deschutes County. We therefore agree with the trial
panel that the Bar proved its single alleged violation of RPC
Cite as 369 Or 180 (2021) 201
8.4(a)(4) by clear and convincing evidence, and we turn to
consider the appropriate sanction.
IV. SANCTION
In determining the appropriate sanction, we refer
to the American Bar Association’s Standards for Imposing
Lawyer Sanctions (1991) (amended 1992) (ABA Standards)
for guidance. We first identify the duty violated, respondent’s
mental state, and the injury caused. We next assess the
appropriate preliminary sanction and determine whether
any aggravating or mitigating circumstance affects that
preliminary assessment. Finally, we consider applicable
case law. See, e.g., In re Conry, 368 Or 349, 372, 491 P3d 42
(2021) (so explaining). Applying that methodology, we con-
clude that a one-year suspension is appropriate.
A. Duty Violated, Respondent’s Mental State, and Harm
We begin with the duty violated. By making false
certifications in his motion to vacate the limited judgment
entered in the 2014 action and initiating both proceedings
against Judge Bagley, respondent violated his duty to avoid
conduct prejudicial to the administration of justice—a duty
owed to the legal system, the legal profession, and the pub-
lic. See In re Jaffee, 331 Or 398, 409, 15 P3d 533 (2000) (con-
duct prejudicial to administration of justice violates duties
to public and to legal system; public has a right to expect
lawyers to live up to the highest standards of honesty and
integrity); ABA Standard 6.1 (discussing conduct prejudicial
to administration of justice); ABA Standard 6.2 (discuss-
ing duty to avoid abuse of legal process, including conduct
involving failure to bring meritorious claims and violating
court rules).
Turning to the mental states that may apply,
the ABA Standards define “knowledge” as “the conscious
awareness of the nature or attendant circumstances of the
conduct but without the conscious objective or purpose to
accomplish a particular result.” ABA Standards at 7. And
the ABA Standards define “negligence” as “the failure * * *
to heed a substantial risk that circumstances exist or that
a result will follow, which failure is a deviation from the
202 In re Ard
standard of care that a reasonable lawyer would exercise in
the situation.” Id.
Considering the judicial fitness complaint and
the federal action that respondent initiated against Judge
Bagley, we readily conclude that respondent acted “know-
ingly.” His factual assertions of judicial misconduct and
bias in both proceedings were not supported by any credible
evidence.
As for the false certifications in respondent’s motion
to vacate filed in the 2014 action, respondent chose to take
an exceptionally aggressive stance in his representation
of Goertzen. After reviewing the record, we conclude that
respondent acted at least negligently when he filed that
motion: He failed to heed a substantial risk that the motion
advanced unsupported allegations, thereby deviating from
what a reasonable lawyer would have done. ABA Standards
at 7.
As to injury, respondent’s misconduct caused actual
and potential injury to his client, the parents, Judge Bagley,
the legal system, and the legal profession. See ABA Standards
at 7 (defining “[i]njury” as harm to client, public, legal sys-
tem, or profession as a result of misconduct, ranging from
“serious” injury to “little or no” injury; defining “[p]otential
injury” as harm that is reasonably foreseeable at the time of
the misconduct and probably would have resulted if not for
some intervening factor or event). In making false certifica-
tions in his motion to vacate, respondent caused potential
injury to Goertzen by exposing him to potential liability for
costs, fees, and sanctions. And, more significantly, he caused
substantial actual harm to the parents, including causing
them to unnecessarily incur additional attorney fees and to
experience renewed stress and anxiety from respondent’s
attempt to revive litigation already wholly resolved in their
favor; causing damage to their reputations and embarrass-
ment resulting from unfounded accusations of fraud that
were publicized in local and regional news media; and,
potentially, exposing them to civil liability.
Respondent’s misconduct also caused actual harm
to Judge Bagley, in the form of time and effort to respond
Cite as 369 Or 180 (2021) 203
to the judicial fitness complaint and the federal action, as
well as impugning her professional reputation by raising
unfounded bias accusations. And that same misconduct
caused damage to the justice system, because respondent’s
unfounded filings and complaints required the commission
and the federal court to expend time and resources to pro-
cess filings, investigate a fitness complaint, issue a pro bono
referral, and deliberate and issue resolutions.
Finally, respondent’s misconduct caused substan-
tial harm to the legal profession. In that regard, the parents
testified that respondent’s efforts to extend the litigation—
through his unsupported and factually inaccurate motion
to vacate—caused them to view the court system as flawed.
In particular, they did not understand how the system
was unable to stop what they perceived as respondent’s
“vendetta” against them and how he was permitted to
use the judicial system as a weapon to pursue unfounded
claims.
We conclude that the appropriate preliminary
sanction is suspension, for two reasons. First, respondent
knowingly engaged in misconduct when he initiated the
two proceedings against Judge Bagley. See ABA Standard
6.22 (suspension generally appropriate when lawyer know-
ingly brings nonmeritorious claim or violates court rules
and causes actual or potential injury to a party). Second,
although we have concluded that the record falls short of
establishing that respondent knowingly made false certifica-
tions, the significant harm that resulted from that conduct—
particularly when coupled with respondent’s misconduct
in initiating proceedings against Judge Bagley—similarly
warrants suspension. See generally ABA Standard 6.13
(reprimand generally appropriate when lawyer negligent
in determining whether statements are false and causes
actual or potential injury to party or adverse effect on legal
proceeding); ABA Standard 6.12 (same conduct and harm,
suspension appropriate when lawyer acts with knowledge);
ABA Standard 6.11 (more egregious, intentional conduct,
causing serious or potentially serious injury to a party “or
significant or potentially significant adverse effect on the
legal proceeding,” justifies disbarment).
204 In re Ard
B. Aggravating and Mitigating Circumstances
We turn to applicable aggravating circumstances.
“[A]ggravating circumstances are any considerations or fac-
tors that may justify an increase in the degree of discipline
to be imposed.” ABA Standard 9.21.
First, respondent has substantial experience in the
practice of law. ABA Standard 9.22(i). He was admitted to
the California Bar in 1976 and the Oregon Bar in 1993.
Second, respondent engaged in a pattern of mis-
conduct—a pattern of relying on allegations unfounded in
law and fact to support his litigation strategy. ABA Standard
9.22(c). Although this court previously has declined to apply
the “pattern of misconduct” aggravating factor when a law-
yer has not violated rules “in more than one case or matter”
and the violation of RPC 8.4(a)(4) arose from a single course
of conduct in a single matter, McGraw, 362 Or at 696, that
aggravating factor applies in this case. Despite the single
violation of RPC 8.4(a)(4) charged, respondent engaged in
conduct prejudicial to the administration of justice in three
separate proceedings—the 2014 action, the judicial fitness
proceeding, and the federal action against Judge Bagley.
Third, we agree that, at least to some degree,
respondent acted with a selfish motive, an aggravating fac-
tor under ABA Standard 9.22(b). He took actions at least
in part to satisfy his own intense desire to prevail in the
various proceedings, even though ultimately on Goertzen’s
behalf. Indeed, Goertzen testified at the trial panel hear-
ing that, by the time of the mediation that completed the
appeals, he still did not understand the court process, why
it had taken so long, and what was needed to stop it.
Finally, respondent has refused to acknowledge the
wrongful nature of his conduct. We agree with the Bar that
respondent has failed to acknowledge that his conduct was
detrimental in any respect, specifically that he caused harm
to the parents, Judge Bagley, the court system, and the
legal profession. That is an aggravating factor under ABA
Standard 9.22(g). McGraw, 362 Or at 695.
At the same time, we do not accept the Bar’s argu-
ment that other instances of respondent’s conduct during
Cite as 369 Or 180 (2021) 205
the disciplinary proceeding reflect a refusal to acknowledge
wrongful conduct, as opposed to respondent’s attempt to
defend his factual and legal positions in the proceeding, such
that expanded application of that factor is not appropriate.
See In re Davenport, 334 Or 298, 321, 49 P3d 91, modified
and adh’d to on recons, 335 Or 67, 57 P3d 897 (2002) (“Every
lawyer should have the opportunity to defend against accu-
sations respecting his or her personal character and pro-
fessional responsibility without reprisal for doing so.”). And,
contrary to the Bar’s request, we do not apply ABA Standard
9.22(f), which treats making false statements or engaging in
other deceptive processes in the disciplinary process, as an
aggravating factor. After reviewing the record, we conclude
that the Bar’s examples fall short.12
“[M]itigating circumstances are any considerations
or factors that may justify a reduction in the degree of dis-
cipline to be imposed.” ABA Standard 9.31. One mitigating
factor applies: Respondent has no prior disciplinary record.
ABA Standard 9.32(a).
C. Prior Case Law and Sanction
Turning to applicable case law, the Bar and the
trial panel have noted that this court has suspended law-
yers for more than one year for making misrepresentations
and engaging in unnecessary litigation. In McGraw, 362 Or
at 668, for example, the court imposed an 18-month suspen-
sion after the respondent lawyer had abused the litigation
process over many years in his role as a wife’s conservator
by taking numerous, burdensome actions against the hus-
band in violation of RPC 8.4(a)(4) and RPC 4.4(a) (respect
for rights of third persons). See also Stauffer, 327 Or at 69-70
(two-year suspension for significant amount of unnecessary
litigation and misrepresentations, with aggravating factors).
And in one case, the Bar points out, the court reciprocally
12
Some of the Bar’s examples are based on respondent’s testimony about
the merit of various factual assertions that we already have discounted; some
are based on respondent’s ongoing disagreement with the Bar about the legal
implications of various litigation outcomes; and some concern statements from
respondent, or his questioning of witnesses, that was not entirely consistent with
other material in the record, but possibly due to misunderstanding, competing
impressions, inadvertent misstatements, or other confusion.
206 In re Ard
disbarred a lawyer for intentionally and knowingly engaging
in protracted litigation in multiple forums over a course of
years with the intention to harass and delay, despite admo-
nitions, orders, and sanctions imposed by involved courts.
In re Sanai, 360 Or 497, 501, 543, 383 P3d 821 (2016).
But several other cases suggest that a six-month
to nine-month suspension is appropriate. First, in Paulson,
341 Or 13, 28-29, 34, the respondent lawyer was suspended
for repeatedly ignoring or violating procedural rules in two
proceedings—to his clients’ own significant detriment—
aggregately resulting in prolonged and more expensive lit-
igation and violating the predecessor rule to RPC 8.4(a)(4).
See id. at 29 (lawyer brought frivolous claims that lacked
merit and continued to pursue them “long after it would
have been apparent to any reasonable lawyer that the
claims were exceedingly weak and that it was not in his
clients’ best interest to pursue them”; lawyer also conducted
litigation “in an irresponsible and amateurish manner,” to
the prejudice of his clients). After concluding that the lawyer
had acted knowingly and that several aggravating factors
applied, the court imposed a six-month suspension.
Second, in In re Wilson, 342 Or 243, 149 P3d 1200
(2006), the respondent lawyer intentionally had engaged in
dishonesty and misrepresentation, as well as conduct preju-
dicial to the administration of justice, when she made false
statements to opposing counsel and court staff and filed an
affidavit containing false statements concerning her own
unavailability on a scheduled trial date. After applying two
aggravating factors (substantial experience and prior dis-
ciplinary record), and also noting the egregious nature of
the lawyer’s dishonest conduct—in particular, in filing an
affidavit containing false statements—the court imposed a
six-month suspension.
Finally, in In re Dugger, 334 Or 602, 54 P3d 595
(2002), the respondent lawyer knowingly had made misrep-
resentations to the court on two occasions, including mak-
ing false statements under oath, and also had engaged in
conduct prejudicial to the administration of justice. After
emphasizing that intentionally or knowingly making false
statements under oath is among the most serious of possible
Cite as 369 Or 180 (2021) 207
violations, and applying several aggravating factors, the
court imposed a nine-month suspension.
Respondent’s misconduct bears some similarity
to those cases, but it also differs in some respects. First,
although the Bar did not allege or prove that respondent made
false statements in violation of what is now RPC 8.4(a)(3)
(allegations that the Bar did prove in Wilson and Duggar),
the Bar did allege and prove that he made false certifica-
tions, amounting to conduct prejudicial to the administra-
tion of justice under RPC 8.4(a)(4). Second, although we
have concluded that, in making those false certifications,
respondent acted at least negligently, rather than know-
ingly or intentionally, we have determined that his conduct
caused significant harm to participants in the legal sys-
tem, to the courts, and to the legal profession. Third, and
most significantly, respondent not only made false certifi-
cations in one proceeding, but he initiated two additional
proceedings, alleging judicial misconduct and bias, entirely
without foundation, against the judge who ruled against
him after he made his false certifications. All of that con-
stituted knowing conduct that, again, was prejudicial to the
administration of justice and caused actual and potential
harm.
On balance, considering respondent’s collective mis-
conduct and the actual and potential harm that it caused,
the duties violated, aggravating and mitigating factors, and
applicable case law, we, like the trial panel, conclude that the
appropriate sanction is a one-year suspension. Respondent
at least negligently engaged in misconduct in the 2014 action
that is similar to the knowing conduct that warranted a six-
month suspension in Paulson. And then, apparently in retal-
iation, respondent engaged in serious misconduct by know-
ingly filing a judicial fitness complaint against Judge Bagley
and a federal action against her and others without any
basis in fact. As we have described, his conduct in all three
proceedings caused substantial harm to multiple individu-
als, the court system, and the legal profession. Considering
the aggravating factors—including that respondent does not
acknowledge causing harm and his pattern of continuing to
engage in improper tactics without deterrence, even after he
208 In re Ard
was sanctioned in the 2014 action—a one-year suspension is
warranted.
Respondent is suspended from the practice of law
for one year, effective 60 days from the date of this decision.