# In re Clark

> Oregon Supreme Court · December 30, 2025 · 374 Or. 683

URL: https://www.frixlaw.com/law-library/cases/11233170

## Case

- **Court:** Oregon Supreme Court
- **Decided:** December 30, 2025
- **Citations:** 374 Or. 683
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11233170

## How later opinions describe it (automated extraction)

- applying rule to court order
- finding a vio- lation of Rule 3.4(c) where a lawyer issued subpoenas and deposition notices after the trial court judge orally directed the lawyer not to do so
- explaining that the title of an act “may offer inter- pretive assistance” when it is part of the bill that the legis- lature adopts
- finding that respondent’s testimony was not credible where client’s competing version of events better aligned with contemporaneous communications

## Opinion text

No. 58 December 30, 2025 683

IN THE SUPREME COURT OF THE
STATE OF OREGON

In re Complaint as to the Conduct of
ANNE-MARIE W. CLARK
OSB No. 110900,
Respondent.
(OSB 23322) (SC S071725)

En Banc
On review of the decision of a trial panel of the Disciplinary
Board.*
Argued and submitted September 19, 2025.
Amber Bevacqua-Lynott, Buchalter, P.C., Portland,
argued the cause and filed the briefs for respondent.
Susan Cournoyer, Assistant Disciplinary Counsel,
Tigard, argued the cause and filed the brief on behalf of the
Oregon State Bar.
PER CURIAM
The complaint is dismissed.

­_ _____________
* Trial panel opinion dated January 10, 2025.
684 In re Clark

PER CURIAM
The Oregon State Bar charged respondent with
knowingly disobeying a court order, in violation of Rule of
Professional Conduct (RPC) 3.4(c). That rule provides that a
lawyer shall not “knowingly disobey an obligation under the
rules of a tribunal, except for an open refusal based on an
assertion that no valid obligation exists.” The dispute cen-
ters around a verbal order that a trial court judge gave to
respondent at a hearing in July 2016. At the time, respondent
was serving as trustee of a special needs trust intended to
benefit her cousin, Allen, who has an intellectual disability.
The Bar contends that, at the conclusion of the hearing, the
judge verbally ordered respondent to electronically deposit
$20 per month into Allen’s bank account. Respondent failed
to do so. That failure is the basis for the Bar’s charge that
respondent knowingly disobeyed a court order in violation of
RPC 3.4(c).
Respondent contends that a knowing violation of
a verbal court order falls outside the scope of RPC 3.4(c).
Alternatively, as a factual matter, although she agrees that
she did not provide Allen with $20 per month, she denies
that the judge ordered her to do so. Instead, she contends
that the order addressed only the method that she should
use to make cash distributions to Allen—namely, that,
when she distributes funds to Allen, she should use elec-
tronic deposit rather than written checks. Respondent fur-
ther maintains that, even if the judge ordered her to provide
Allen with $20 per month, any violation of that order was
not done knowingly, because she did not understand the
judge to have ordered her to do so.
A divided trial panel of the Disciplinary Board
agreed with the Bar, with one member dissenting. Reviewing
the matter de novo, we conclude that the Bar failed to estab-
lish the violation by clear and convincing evidence.
A. Interpretation of RPC 3.4(c)
Although the dispute in this case is primarily fac-
tual, we address respondent’s legal argument first. As noted
above, respondent contends that a knowing violation of
a verbal court order falls outside the scope of RPC 3.4(c),
Cite as 374 Or 683 (2025) 685

which provides that a lawyer shall not “knowingly disobey
an obligation under the rules of a tribunal, except for an
open refusal based on an assertion that no valid obligation
exists.” The phrase “obligation under the rules of a tribu-
nal” refers to court rules as well as court rulings, including
orders.1 Respondent agrees that the rule applies to court
orders, but she argues that it applies only to written court
orders, because a verbal order is usually not appealable and
may be modified by the trial court before being reduced to a
written order.
We reject respondent’s interpretation and hold that
RPC 3.4(c) prohibits knowingly disobeying both written and
verbal court orders. The text of the rule does not distinguish
between written and verbal orders. And applying the rule
to both better carries out the intent behind the rule. The
title of RPC 3.4, as adopted by this court, is “Fairness to
Opposing Party and Counsel.” See Weldon v. Bd. of Lic. Pro.
Counselors and Therapists, 353 Or 85, 96-97, 293 P3d 1023
(2012) (explaining that the title of an act “may offer inter-
pretive assistance” when it is part of the bill that the legis-
lature adopts). The rule, including paragraph (c), is intended
to provide broad protection to opposing parties, and their
lawyers, against abusive litigation tactics. See American
Bar Association, Model Rule of Professional Conduct 3.4
comment 1 (“Fair competition in the adversary system is
secured by prohibitions against destruction or concealment
of evidence, improperly influencing witnesses, obstructive
tactics in discovery procedure, and the like.”). When a judge
orders a lawyer to do something or not do something, the
opposing party and their lawyer should expect the lawyer to
1
The text of RPC 3.4(c) tracks the American Bar Association’s Model Rule
of Professional Conduct (Model RPC) 3.4(c). Our interpretation of that rule may
be informed by decisions from other jurisdictions applying the same model rule
prior to our adoption. Cf. State v. Hubbell, 371 Or 340, 354, 537 P3d 503 (2023)
(“When the legislature adopts a uniform act, the context of the statute includes
the uniform act, its official commentary, and interpretations from other juris-
dictions that existed at the time of enactment of the Oregon law.”). By the time
Oregon adopted RPC 3.4(c) at the end of 2004, numerous jurisdictions had already
applied similar rules, also drawn from Model RPC 3.4(c), to lawyers who know-
ingly violated court orders. See State ex rel. Oklahoma Bar Ass’n v. Braswell, 975
P2d 401, 408 (Okla 1998) (applying rule to court order); Disciplinary Proceedings
Against Ratzel, 218 Wis 2d 423, 432, 578 NW2d 194, 198 (1998) (same); Attorney
Grievance Comm’n v. Mininsohn, 380 Md 536, 569-70, 846 A2d 353, 373 (Md Ct
App 2004) (same).
686 In re Clark

comply with the order and should not be required to return
to court to enforce it. That is true whether the judge’s order
is written or verbal. See, e.g., Ligon v. Stilley, 2010 Ark 418,
26-27, 104, 371 SW3d 615, 645, 673 (2010) (finding a vio-
lation of Rule 3.4(c) where a lawyer issued subpoenas and
deposition notices after the trial court judge orally directed
the lawyer not to do so).
Although knowingly disobeying a verbal order may
support a violation of RPC 3.4(c), the order must be suffi-
ciently clear in its direction to the lawyer to be knowingly
disobeyed. A lawyer does not knowingly disobey a court order
by merely misunderstanding what the court has ordered.
The scope of a court’s order, and a lawyer’s understanding
of that scope, are questions of fact. We now turn to those
questions of fact in this case.
B. Factual Disputes
A divided trial panel of the Disciplinary Board
found that the Bar established that respondent violated
RPC 3.4(c) by knowingly violating a court order. We review
the trial panel’s decision de novo and may adopt, modify, or
reject the decision of the trial panel. ORS 9.536(2); Bar Rule
of Procedure (BR) 10.6. “On de novo review, this court sits as
factfinder based on the record developed by the trial panel”
to determine whether the Bar has proved each violation by
clear and convincing evidence. In re Munn, 372 Or 589, 591
n 1, 553 P3d 1039 (2024); see also BR 5.2 (establishing clear
and convincing evidence standard). Evidence is clear and
convincing when “the truth of the facts asserted is highly
probable.” In re Gregory Mark Abel, 374 Or 350, 357, 577 P3d
777 (2025) (internal quotation marks omitted). Of the facts
that the Bar must prove by clear and convincing evidence,
the parties dispute whether the trial judge ordered respon-
dent to provide her cousin with $20 per month and, if so,
whether respondent understood the trial judge to have done
so.
1. The record
The disputed court order was issued verbally at
the conclusion of a July 2016 hearing on Allen’s petition to
remove respondent as trustee of a special needs trust. The
Cite as 374 Or 683 (2025) 687

trust had been established by respondent’s aunt, Allen’s
mother, upon her death. When her mother died in 2010,
Allen was in her mid-40s. She had an intellectual disability
but was living independently and managed her own limited
finances. Her income consisted only of government bene-
fits, which included about $730 per month in Supplemental
Security Income (SSI). The trust documents instruct the
trustee to consider, and generally attempt to minimize, the
extent to which trust distributions to Allen would reduce
her government benefits.
Respondent became the trustee in 2011 upon the
resignation of the first co-trustees, respondent’s parents.
Respondent made no distributions from the trust to Allen
in the first three years that she served as trustee because of
what she described as communication challenges with Allen,
who did not trust respondent and generally avoided direct
communication with her. In 2014, Allen retained counsel,
Mayor, to facilitate trust distributions. Mayor requested that
respondent provide Allen with $20 checks per month, plus
an additional $60 per quarter. Mayor explained that any
cash distributions above that amount would reduce Allen’s
SSI benefits. Respondent complied and began sending those
checks to Mayor.
In April 2015, Mayor filed a petition to remove
respondent as trustee.2 The petition argued that respon-
dent should be removed as trustee because she had limited
experience in trust administration and Allen lacked confi-
dence in her. While that petition was pending, respondent
used trust funds to purchase dining room chairs for Allen
at Mayor’s request and suggested to Mayor that she also
use trust funds to pay for Allen’s rent. Although respondent
estimated that paying for Allen’s rent would reduce her SSI
benefits by about $250 per month, that loss would be more
than offset by the fact that Allen would no longer have to use
her SSI benefits to pay the rent, which was about $625 per
month. Mayor agreed. In September 2015, respondent began
sending checks from the trust to Mayor to cover Allen’s rent.
2
The petition also sought to compel both respondent and her parents to pro-
vide an accounting of trust assets from the time each served as trustees. The
questions related to the accounting are not relevant to the issues presented in
this case, and we do not discuss them further.
688 In re Clark

The trial court scheduled a hearing on Allen’s
petition to remove respondent as trustee. Prior to the
hearing, Mayor withdrew his representation of Allen. As
a result, respondent began sending the regular trust dis-
tributions—$20 per month and $60 per quarter—by check
directly to Allen and began sending the $625 per month
rent checks directly to Allen’s landlord. Allen did not cash
or deposit the checks that respondent sent directly to her.
The trial court held a hearing on the petition in July
2016. That is the hearing at which the trial court issued the
verbal order in dispute in this case. At the hearing, respon-
dent was represented by counsel, Mishkin, and Allen repre-
sented herself. The trial court judge took evidence and tes-
timony and declined to remove respondent as trustee.
After making that ruling, the judge used most of
the remainder of the hearing to address some of Allen’s spe-
cific objections to respondent’s performance as trustee. Allen
primarily objected to respondent paying her rent. Allen saw
that, once respondent had started paying her rent, her SSI
checks were smaller. Allen preferred the larger SSI checks
and complained that the $20 per month checks from respon-
dent did not make up the difference. She stated repeatedly
that she did not want the trust to pay her rent or send her
$20. The judge tried to explain to Allen that she was better
off financially when respondent paid the rent because then
Allen did not need to use her SSI checks to pay the rent.
As they were nearing the end of the hearing,
respondent’s counsel, Mishkin, asked the judge if they could
address a couple of other issues, while Allen was present,
because they had struggled to communicate effectively with
her outside the context of a judicial proceeding. One of the
issues was that Allen had failed to deposit the checks that
respondent had previously sent directly to Allen, after her
counsel withdrew. Respondent asked whether she could use
direct deposit to make the cash distributions and wanted to
get Allen’s bank account information. Allen confirmed that
she had been using the same bank account for years but
objected to respondent sending her $20. The judge explained
to Allen that, if respondent used direct deposit to send her
$20 per month, then the $20 would be there in her account,
Cite as 374 Or 683 (2025) 689

and she could use it however she wanted. Allen replied, “$20
is not going to get me anywhere a month in my house.” When
respondent asked whether she could direct deposit the dis-
tributions to her account, Allen said, “I’ll think about it.”
Following that discussion, the judge said, “[W]e
might want to order that’s how it’s happening.” The follow-
ing exchange occurred with the judge while Allen, respon-
dent, and Mishkin were all present in the courtroom:
“THE COURT: I’m going to instruct you to—
“[RESPONDENT]: And can I make one more
suggestion?
“THE COURT: Yeah. But I’m going to first instruct
you to—
“[RESPONDENT]: If you—
“THE COURT: —direct-deposit into that account,
unless or until it shows that it’s not going there because
there’s no longer the account. So that is how you’re to do it,
okay.
“[RESPONDENT]: Oh, okay. Okay.
“THE COURT: Go ahead. Ask your question.
“[RESPONDENT]: Direct—I will deposit it into her
account myself.
“MR. MISHKIN: Uh-huh (affirmative).
“[RESPONDENT]: Yeah, okay.
“MR. MISHKIN: Yeah. They wire it in.
“[RESPONDENT]: And I could buy her items—not
just pay utility bills or monthly bills, but if she says a—I
want a vacuum cleaner, or I need a table to go with the
chairs, or I need a new mattress.”
After the hearing, respondent stopped making any
monthly cash distributions to Allen, either through checks
or direct deposit, although respondent still paid for Allen’s
rent from the trust. According to respondent, she stopped
making the monthly distributions because Allen had said
that she did not want them and because respondent did not
understand the judge to have ordered her to provide them.
690 In re Clark

Instead, respondent maintains that the judge’s verbal order
addressed only the method for distributing cash; specifically,
authorizing and directing respondent to make any cash dis-
tributions through direct deposit.
The trial court’s resolution of the 2016 hearing was
never memorialized in a written order. Two months after the
hearing, Mishkin prepared a proposed written order based
on his own notes from the hearing. Mishkin’s draft order
reflected respondent’s understanding that the judge’s order
addressed the method of distribution and not the amount
or frequency of distribution. The relevant part of the draft
proposed order stated:
“If and when the current Trustee, Anne-Marie Clark,
receives bank account routing and account number infor-
mation from [Allen], the current Trustee, Anne-Marie
Clark, shall electronically deposit all cash disbursements
due to [Allen] to such bank account.”
Mishkin served a notice of proposed order on Allen, as
required under UTCR 5.100. Mishkin asked Allen to either
contact him if she objected to the draft proposed order or to
contact the trial court directly.
Soon after receiving the notice, Allen retained new
counsel, Seeger. Seeger contacted Mishkin and objected to
the proposed order, though she did not object that the order
failed to compel respondent to provide $20 per month or that
the order otherwise failed to reflect the judge’s rulings at
the July 2016 hearing. Instead, Seeger objected to respon-
dent continuing to serve as trustee.
Mishkin did not submit the proposed order to the
court until almost two years after the hearing. During those
two years, neither Allen nor Seeger suggested that respon-
dent should be providing $20 per month distributions.
Seeger requested one-time cash distributions for Allen on
three different occasions. Each time, respondent provided
cash distributions through direct deposit. After the third
time, respondent told Seeger that she could not continue to
provide cash distributions without additional information
about Allen’s finances and benefits. Seeger did not make
further requests for cash distributions.
Cite as 374 Or 683 (2025) 691

Mishkin finally submitted the proposed order
in May 2018. Seeger filed objections and a motion to hold
respondent in contempt, raising for the first time the allega-
tion that respondent had been disobeying a court order by
failing to provide Allen with $20 per month. After another
hearing, Seeger submitted her own proposed order that
would have required respondent to provide $20 per month.
Respondent objected through Mishkin, noting that such a
requirement had never been requested by Allen, argued by
the parties, or ordered by the court at the July 2016 hearing.
Following other filings and more hearings, respon-
dent stipulated to the appointment of an interim trustee.
The trial court appointed an interim trustee and ordered
the trustee to provide Allen with $20 per month from the
trust. Respondent ultimately agreed to the appointment of
a new permanent trustee as part of a settlement to resolve
claims that Allen had brought against her.
At around the same time that the trial court
appointed an interim trustee, Seeger filed a Bar complaint
raising numerous allegations against respondent. Based on
those allegations, the Bar brought the charge at issue in this
case—that respondent had violated RPC 3.4(c) by knowingly
disobeying a court order when she stopped providing Allen
with monthly $20 distributions.3
Before a trial panel of the Disciplinary Board, the
trial court judge who had issued the verbal order testi-
fied that she had intended her order to compel respondent
to deposit $20 per month into Allen’s account, though she
acknowledged both that her order did “not say that in one
fell swoop” and that Allen had not requested $20 per month.
Respondent and Mishkin both testified that they
did not understand the judge to have ordered respondent
to make specific distributions. Instead, respondent testi-
fied that the judge’s verbal order authorized and directed
her to make any cash distributions through direct deposit.
Respondent said that she did not understand the order to
3
The Bar brought two other charges against respondent based on Seeger’s
allegations. The trial panel found that the Bar did not prove those other charges
by clear and convincing evidence, and the Bar has not sought review of those
decisions.
692 In re Clark

limit her discretion as trustee to determine how best to
provide for Allen, while both maintaining Allen’s access
to government benefits and preserving the trust assets.
Respondent testified that she did not think that the $20 per
month distributions were a good use of trust assets, because
respondent was already using trust funds to pay for Allen’s
rent and because Allen repeatedly stated she did not want
$20 per month distributions.
Mishkin testified consistently with respondent.
He said that he had understood the judge’s order to have
resolved whether distributions would be made through elec-
tronic transfer or paper checks. But, according to him, the
order did not address the frequency or amount of the distri-
butions, which Mishkin understood to be within the discre-
tion of the trustee, respondent.
A majority of the trial panel concluded that respon-
dent had violated RPC 3.4(c), finding both that the trial
court judge had ordered respondent to distribute $20 per
month to Allen and that respondent had knowingly dis-
obeyed that order. The majority interpreted the order as
resolving a hearing at which Allen sought additional cash
distributions, and the majority determined that respondent
had acknowledged that order at the hearing. Based on that
violation RPC 3.4(c), the trial panel imposed a sanction of
public reprimand.
One member of the trial panel dissented from the
conclusion that respondent had knowingly disobeyed the
judge’s order. The dissenting member noted that the tran-
script from the hearing was “confusing” and that Allen’s
“interactions with the judge broke up any continuous expo-
sition of any potential oral order.” Even if the judge had
ordered respondent to make $20 per month distributions,
the dissenting member would have found that the Bar failed
to prove by clear and convincing evidence that respondent
had knowingly disobeyed the order. The dissenting member
explained that, because of “the disorganized nature of the
hearing,” it was not surprising that people might leave the
hearing with different views on the scope of the order. The
dissenting member also noted that Mishkin shared respon-
dent’s interpretation of the order and that their conduct
Cite as 374 Or 683 (2025) 693

following the hearing was consistent with that interpreta-
tion. Respondent petitioned this court to review the trial
panel’s decision.
2. Whether respondent knowingly disobeyed a court
order
As noted above, the Bar bears the burden of prov-
ing a violation by clear and convincing evidence. BR 5.2.
Reviewing the matter de novo, we agree with respondent
and the dissenting member of the trial panel and conclude
that the Bar failed to prove a violation of RPC 3.4(c) by clear
and convincing evidence.
The Bar’s claim depends on establishing that the
trial court judge ordered respondent to deposit $20 per
month into Allen’s bank account and that respondent under-
stood the trial court to have ordered her to do so. As to the
scope of the trial court order, the Bar points to the testi-
mony from the trial court judge, who said that she intended
her order to require respondent to deposit $20 per month in
Allen’s bank account.
For our purposes, however, the scope of the order is
not determined by the judge’s intent, but by the order itself.
Based on the transcripts, the trial court ordered,
“I’m going to first instruct you [respondent] to * * * direct-de-
posit into that account, unless or until it shows that it’s not
going there because there’s no longer the account. So that
is how you’re to do it, okay.”
That order is ambiguous as to whether the judge was direct-
ing respondent to continue her current distributions of $20
per month but do so using direct deposit or directing respon-
dent to use direct deposit, rather than checks, for any future
distributions that she might make.
The Bar contends that the larger context of the
hearing provides clear and convincing support for its inter-
pretation that the trial court ordered respondent to continue
her current distributions of $20 per month but to do so using
direct deposit. The Bar points out that the order came at
the end of a hearing to resolve Allen’s claim that respon-
dent should be removed for failing to properly manage
694 In re Clark

the trust, including failing to provide her with adequate
disbursements.
Although that context lends support for the Bar’s
interpretation, it is not a complete picture of the hearing.
To be sure, Allen’s petition to remove respondent as trustee,
originally filed by Mayor, alleged that respondent had failed
to provide Allen with adequate disbursements. But that
was not the position that Allen advanced at the hearing.
Instead, she said repeatedly that she wanted respondent to
stop the disbursements that she was making—both the rent
payments and the cash distributions.
Regardless, by the time the court issued its verbal
order, the court had already resolved Allen’s petition and
declined to remove respondent. At that point, the trial court
was addressing an issue raised by respondent rather than an
issue raised by Allen. The issue that respondent had raised
was Allen’s failure to deposit written checks and respon-
dent’s request to use direct deposit. That is the immediate
context in which the judge ordered respondent “to direct-de-
posit into that account.” That more immediate context lends
support for respondent’s interpretation. At the very least,
the overall context of the hearing prevents a finding that
the Bar established by clear and convincing evidence that
the trial court ordered respondent to continue her current
distributions of $20 per month.
Even if the Bar were correct and the trial court
judge orally directed respondent to deposit $20 per month
in Allen’s account, the Bar’s claim would still fail because
the Bar did not prove by clear and convincing evidence that
respondent understood the judge to have so ordered. And
without that showing, the Bar cannot prove by clear and con-
vincing evidence that she knowingly disobeyed the order. See
RPC 3.4(c) (generally prohibiting “knowingly disobey[ing]
an obligation under the rules of a tribunal”). “Knowingly”
is generally defined to mean “actual knowledge of the fact
in question.” RPC 1.0(h); see id. (constructive knowledge
applies only to knowledge of a conflict of interest).
Respondent testified that she did not understand
the trial court to have ordered her to make $20 per month
Cite as 374 Or 683 (2025) 695

distributions to Allen. “Our case law provides a frame-
work for assessing whether the Bar sufficiently proved that
respondent had acted with actual knowledge, when respon-
dent testified to contrary.” Abel, 374 Or at 359. First, we
consider “subjective factors that are observable from the
record,” such as whether the respondent testified in a man-
ner that was evasive, hyper-technical, or argumentative. Id.
As part of that determination, we also consider and assess
any findings by the trial panel that reflect respondent’s
manner while testifying. Id. Second, we consider “ ‘objective
factors, such as the inherent probability or improbability
of testimony, whether testimony is internally consistent or
inconsistent, whether the testimony is corroborated or con-
tradicted, and so on.’ ” Id. (quoting In re Fitzhenry, 343 Or
86, 104, 162 P3d 260 (2007)); see, e.g., In re Long, 368 Or 452,
472, 491 P3d 783 (2021) (finding that respondent’s testimony
was not credible where client’s competing version of events
better aligned with contemporaneous communications).
In this case, the trial panel did not make any find-
ings about the manner of respondent’s testimony that would
reflect on her credibility. And our own review of the record
does not reveal that respondent testified in an evasive,
hyper-technical, or argumentative manner. Further, her
testimony—that she did not understand the trial court to
have ordered her to provide Allen with $20 per month—is
plausible. As noted above, the trial court’s verbal order was
ambiguous as to whether it was requiring respondent to dis-
tribute $20 per month or directing respondent to use direct
deposit when distributing cash. Respondent could have
plausibly understood the order as addressing only the man-
ner of distributing cash to Allen because that is the issue
that respondent raised with the court and was what respon-
dent reasonably would have thought the court was resolving
through the order. The plausibility of that interpretation is
supported by the fact that Mishkin left the hearing with the
same understanding of the trial court’s order.
The Bar contends that respondent’s statement at
the hearing is inconsistent with her testimony that she
understood the trial court to be addressing only the manner
of distributing cash. In particular, the Bar points out that,
696 In re Clark

after the trial court’s order, respondent stated to the trial
court, “I will deposit it into her account myself.” The Bar
argues that, in the context of the hearing, the “it” in that
statement refers to $20 per month distributions. And, as a
result, the Bar contends that that statement is an acknowl-
edgment by respondent that the trial court had ordered her
to make monthly deposits.
We disagree. Again, the transcript is ambiguous.
The “it” in respondent’s statement might refer to $20 per
month distributions, as the Bar contends, but it could also
refer to any future cash distributions that respondent might
make to Allen. Even if “it” refers to $20 per month distribu-
tions, that statement does not tell us how respondent under-
stood the trial court order. Instead, the meaning of that
statement depends on first establishing respondent’s under-
standing of the order. To be sure, if respondent had under-
stood the trial court to order her to provide Allen with $20
per month, then her statement might reflect an acknowl-
edgement of that order. But if respondent had understood
the trial court to order her to use direct deposit when dis-
tributing cash, then her statement would merely express
her intent, in light of that order, to deposit $20 per month
or other permissible distribution to Allen by direct deposit.
Even if respondent planned to continue the monthly pay-
ments at the time of the hearing, that fact would not neces-
sarily mean that she understood the court to have ordered
her to do so or to have prevented her from changing her
plans after the hearing as permitted by the trust.
Respondent’s conduct was otherwise consistent
with her stated understanding that the trial court did not
order her to provide Allen with $20 per month. The draft
order resolving the July 2016 hearing, prepared by respon-
dent’s counsel, would have required direct deposit but did
not address the amount or frequency of cash distributions.
When, nearly two years after the hearing, Seeger first sug-
gested that respondent should be making $20 per month dis-
tributions, respondent replied, through counsel, that a $20
per month requirement had never been requested, argued,
or ordered.
Cite as 374 Or 683 (2025) 697

As noted at the outset, the Bar bears the burden
of proving its allegation under RPC 3.4(c) by clear and con-
vincing evidence, BR 5.2, which means that the “truth of
the asserted facts must be highly probable.” Abel, 374 Or
at 357 (internal quotation marks omitted). That standard
“demands more than merely a suspicion that a particular
fact is true.” In re Peterson, 348 Or 325, 339, 232 P3d 940
(2010) (internal quotation marks omitted). We conclude that
the Bar failed to meet that standard. In this case, the Bar
failed to establish, by clear and convincing evidence, that
either the trial court ordered respondent to prove $20 per
month to Allen or that respondent understood the trial
court to have done so. Accordingly, we dismiss the Bar’s
complaint.
The complaint is dismissed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11233170. Public record. Not legal advice.