Opinion

In re Ard

  • 369 Or. 180
  • 501 P.3d 1036
Court
Oregon Supreme Court
Filed
Dec 30, 2021
Status
Published
Cited by
5 cases
Authority
More cited than 51.8%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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