In Re Complaint as to the Conduct of Sanai

No. 69 October 27, 2016 497

IN THE SUPREME COURT OF THE

STATE OF OREGON

In re Complaint as to the Conduct of

FREDRIC SANAI,

OSB #981372,

Accused.

(OSB 13100; SC S063514)

En Banc

On review of the decision of a trial panel of the Disciplinary

Board, dated July 7, 2015.

Argued and submitted on the record on June 15, 2016.

Fredric Sanai, Lake Oswego, argued the cause and filed

the briefs for the accused.

Kellie F. Johnson, Assistant Disciplinary Counsel,

Tigard, argued the cause and Susan Roedl Cournoyer,

Assistant Disciplinary Counsel, filed the brief on behalf of

the Oregon State Bar.

PER CURIAM.

The accused is disbarred, effective 60 days from the date

of this decision.

Case Summary: Reciprocal disciplinary proceedings against the accused

arose out of misconduct that occurred in the State of Washington. In 2002,

the accused—an Oregon lawyer—attained admission to the Washington State

Bar specifically for the purpose of representing his mother in her divorce from

his father. After being joined by his older brother—a California attorney—the

accused began a strategy aimed at reversing and, ultimately, delaying a court-or-

dered sale of the couple’s marital property. According to the Washington Supreme

Court, the accused

“filed multiple frivolous motions and claims for purposes of harassment and

delay, repeatedly and willfully disobeyed court orders and rules, brought frivo-

lous suits against judges who ruled against him, and filed similar claims multiple

times in multiple jurisdictions for purposes of delay.”

In re Disciplinary Proceeding Against Sanai, 177 Wash 2d 743, 746, 302

P3d 864 (2013). Many of those violations occurred multiple times, were inten-

tional, and caused actual harm. Id. Following disciplinary proceedings and a

disbarment recommendation from the Washington State Bar, the Washington

Supreme Court ordered the accused disbarred in 2013. Shortly thereafter, the

Oregon State Bar filed notice of the accused’s disbarment in Washington with

498 In re Sanai

the Oregon Supreme Court, along with a recommendation for reciprocal disbar-

ment in Oregon. Disciplinary proceedings in Oregon were subsequently con-

vened to determine (1) whether the Washington disciplinary processes that the

accused was afforded had been lacking in notice or opportunity to be heard and

(2) whether the accused should now be disciplined by this court. After receiving

evidence and taking testimony, a state bar disciplinary trial panel concluded that

the accused should be reciprocally disbarred in Oregon. Held: On review, the

magnitude of the accused’s repeated misconduct in Washington, coupled with

the disdain for the rule of law exhibited by his actions, is sufficient to warrant

reciprocal disbarment in Oregon as a sanction for his conduct in Washington.

The accused is disbarred, effective 60 days from the date of this decision.

Cite as 360 Or 497 (2016) 499

PER CURIAM.

This is a reciprocal discipline review proceeding

conducted under Oregon State Bar Rules of Procedure (BR)

Title 10 and BR 3.5. Fredric Sanai (the accused) was dis-

barred by the Washington Supreme Court in June 2013 for

misconduct in a variety of matters arising from the dissolu-

tion of his parents’ marriage in Washington State.1 Shortly

thereafter, the Oregon State Bar (Bar) notified this court

regarding the accused’s disbarment in Washington State

and filed a recommendation for reciprocal disbarment in

Oregon as well. Following the accused’s response to that rec-

ommendation, the court exercised its discretion under BR

3.5(e) to refer this matter to the Bar’s Disciplinary Board for

the purpose of taking testimony and receiving evidence con-

cerning: (1) whether the Washington disciplinary processes

that were provided to the accused had been lacking in notice

or opportunity to be heard and (2) whether the accused

should now be disciplined by this court. A trial panel con-

vened by the Disciplinary Board subsequently issued a writ-

ten decision, concluding that the accused should be recipro-

cally disbarred in Oregon as the result of his misconduct in

Washington. The accused now appeals that decision, which

we review de novo. ORS 9.536(2); BR 10.6. For the reasons

set out below, we agree with the trial panel’s decision that

the accused should now be disbarred in Oregon.

1

The accused was disbarred for violating the following Washington Rules of

Professional Conduct (WRPC):

•  WRPC 3.1 (filing frivolous claims);

•  WRPC 3.2 (delaying litigation);

•  WRPC 3.4(c) (knowingly disobeying an obligation under rules of a

tribunal);

•  WRPC 4.4(a) (embarrassing, delaying or burdening third person);

•  WRPC 8.4(a) (violating/attempting to violate Rules of Professional

Conduct);

•  WRPC 8.4(d) engaging in conduct prejudicial to the administration of

justice);

•  WRPC 8.4(j) (willfully disobeying court order);

•  WRPC 8.4(l) (violating duty or sanction imposed under rules for enforce-

ment of lawyer conduct in connection with disciplinary matter); and

•  WRPC 8.4(n) engaging in conduct demonstrating unfitness to practice

law).

500 In re Sanai

I. REGULATORY CONTEXT

We begin with a brief description of the rules gov-

erning reciprocal discipline matters. The Bar’s Disciplinary

Counsel is required to notify this court and the State

Professional Responsibility Board (SPRB) upon receiving

notice from another jurisdiction that an Oregon attorney

has been disciplined in that jurisdiction for misconduct. BR

3.5(a). The SPRB is then required to recommend to this

court an appropriate sanction to be applied in Oregon based

on the discipline imposed by the other jurisdiction. Id. The

accused attorney is given an opportunity to respond to the

SPRB’s recommendation, and the Bar is permitted to reply.

BR 3.5(c), (d).

This court then must determine “whether the

attorney should be disciplined in Oregon for misconduct in

another jurisdiction and if so, in what manner.” BR 3.5(e).

Our choice of sanction is aimed at vindicating the “judicial

authority of this jurisdiction, not of the one in which the ear-

lier discipline occurred[.]” In re Devers, 317 Or 261, 265, 855

P2d 617 (1993). As a result, in reciprocal discipline cases, we

have an independent obligation to determine an appropri-

ate sanction based upon this state’s disciplinary rules. In re

Lopez, 350 Or 192, 198, 252 P3d 312 (2011).

A decision on whether to impose discipline turns on

the answers to two questions. The first is, “[w]as the pro-

cedure in the jurisdiction which disciplined the attorney

lacking in notice or opportunity to be heard?” BR 3.5(c)(1).

The second is, “[s]hould the attorney be disciplined by the

court?” BR 3.5(c)(2). The court may—as it did in this case—

refer the matter to the Disciplinary Board for the purpose of

taking testimony on those two questions. BR 3.5(e).

The reciprocal disciplinary rule, in effect, codifies a

basic principle of issue preclusion: an attorney who has had

a full and fair opportunity to litigate the charges leading to

discipline meted out in another jurisdiction may not reliti-

gate the fact issues already decided. Thus, the accused law-

yer may not use a reciprocal disciplinary hearing in Oregon

to challenge the accuracy of particular underlying factual

findings of the other jurisdiction. See In re Devers, 317 Or at

264-65 (determining whether the accused lawyer received

Cite as 360 Or 497 (2016) 501

constitutionally sufficient notice and opportunity to be heard

in the other jurisdiction); BR 3.5(b) (the order imposing dis-

cipline in the other jurisdiction is “sufficient evidence that

the attorney committed the misconduct described therein”).

Instead, to the extent that the attorney seeks to avoid the

factual findings of the other jurisdiction, the attorney bears

the burden of proving at the hearing “that due process of

law was not afforded the attorney in the other jurisdiction.”

BR 3.5(f).

II. FACTS

The facts are taken from the record generated

below, the parties’ briefs, and the Washington Supreme

Court’s decision in In re Disciplinary Proceeding Against

Fredric Sanai, 177 Wash 2d 743, 302 P 3d 864 (2013). The

accused was admitted to the Oregon Bar in 1998 and to the

Washington State Bar in 2002. He had, it appears, specif-

ically sought admission to the Washington State Bar for

the purpose of aiding his mother in matters related to her

divorce in Washington from the accused’s father.

In April 2002, the accused’s parents had finalized

their divorce, with the resulting divorce decree requiring,

among other things, that the family home and a vacant lot

be sold, with the proceeds to be distributed equally between

the accused’s mother and his father, a Seattle-based cardi-

ologist and internal medicine specialist. The accused and

his older brother—Cyrus Sanai, a California attorney—

maintained, however, that their father had concealed sig-

nificant assets from both their mother and the court.

Consequently, the two siblings began representing their

mother in proceedings designed to contest the court-ordered

property sale and distribution of proceeds.

What followed were years of acrimonious litigation

in which the accused and his brother filed a virtual tsu-

nami of motions, subpoenas, petitions, appeals, and new

actions in Washington’s state and federal courts. Many, if

not most, of those undertakings were filed solely to delay the

court-ordered sale of the family property noted above or to

harass the opposing parties and their lawyers. Because of

the large number of those filings, the many different forums

in which they were initiated, and the fact that they often

502 In re Sanai

overlapped chronologically, we set out those activities and

their respective outcomes by loosely grouping them—as did

the Washington Supreme Court—according to the various

contexts in which they arose.

A.  The Vacant Lot Dispute

In April 2002, shortly after the Sanais’ divorce

decree was finalized, the accused’s mother filed a pro se

appeal and notice of supersedeas without bond, effectively

staying the then-pending sale of the vacant lot property. In

June 2002, Washington Superior Court Judge Thibodeau

ruled that that conduct had been intended solely to delay

and frustrate the court’s rulings. He subsequently imposed

a $10,000 sanction in attorney fees against mother, dis-

qualified the accused’s brother from representing her, and

ordered the posting of cash or commercial bonds to stay any

future sale of the house, vacant lot, or personal property.

Later that month, the accused made his first

appearance as his mother’s legal counsel at a hearing in

Snohomish County Superior Court. At that hearing, Judge

Thibodeau ordered that the stay concerning the sale of the

vacant lot be lifted by July 2002, absent the posting of a

$50,000 bond. Instead of posting the required bond, how-

ever, the accused filed a lis pendens notice on the vacant lot,

effectively clouding title to that property.

In response, Judge Thibodeau issued three orders

in September 2002. First, he disqualified the accused from

representing his mother. Second, he (1) ordered the accused’s

lis pendens notice stricken unless stayed by the Washington

Court of Appeals; (2) barred the parties from filing any fur-

ther lis pendens notices; and (3) barred any further action to

delay the sale of the vacant lot. Finally, the judge imposed

a $1,000 sanction against the accused’s mother, because the

accused had brought, on her behalf, a frivolous motion for a

protective order and sanctions.

The accused then filed an appeal of those orders on

mother’s behalf, although mother appeared to continue as

a pro se litigant. Subsequently, defying the previous order

prohibiting him from further representing his mother, the

accused then filed at least seven accompanying motions to

Cite as 360 Or 497 (2016) 503

either block the sale of the vacant lot or to challenge his

disqualification from representation. All were denied by the

Washington Court of Appeals, prompting the accused to file

either a “reapplication,” a motion to reconsider, or a motion

to modify in each case, all of which were similarly unavail-

ing. Due in large part to those appeals, Judge Thibodeau

imposed an additional $2,500 sanction against mother in

December 2002, citing the “ ‘continuing appeals of every

ruling of this court [that are] greatly prolonging the mat-

ter and costing substantial attorney fees.’ ” In re Sanai, 177

Wash 2d at 747 (internal citation omitted). Moreover, the

judge opined, “[t]he continuing appeals border on the frivo-

lous, and must stop for the benefit of both parties.’ ” Id.

In November 2002, as those matters were develop-

ing, a Washington Court of Appeals commissioner denied a

motion filed by the accused to overturn the September 2002

order striking the previous lis pendens notices filed against

the marital property. In February 2003, the Washington

Court of Appeals denied the accused’s motion to modify that

ruling and, shortly thereafter, Judge Thibodeau released

the accused’s July 2002 lis pendens notice.

The accused’s brother, however, filed a new lis pen-

dens notice that same day, based on a federal action in the

Western District of Washington—discussed in greater detail

below—that he and the accused had initiated as plaintiffs in

December 2002. When that action was transferred to United

States District Court Judge Zilly—who was already presid-

ing over another federal matter brought by the accused and

others involving the Sanais’ divorce—Judge Zilly promptly

ordered the release of the February lis pendens notice.

Approximately three days later, the accused’s brother filed

yet another, albeit amended, lis pendens notice, which Judge

Zilly released as well in April 2003. Judge Zilly also ordered

the parties “to cease and desist from any further action to

delay or obstruct the sale of either [the house or the vacant

lot] or filing any further lis pendens.” Id. at 748.

In May 2003, the accused filed a new claim on his

mother’s behalf, this time in King County Superior Court.

In that action, mother sought partition of the same family

property that had previously been adjudicated as part of the

504 In re Sanai

Sanais’ divorce. Based on the new case that he had just initi-

ated, the accused filed yet another lis pendens notice against

the property, which he subsequently amended with a new

notice in July 2003.

That amended lis pendens notice did not escape the

attention of the other state and federal entities addressing

the Sanais’ litigation. In August 2003, Judge Thibodeau held

the accused’s mother in contempt, imposing $5,000 in sanc-

tions for continuing to obstruct the sale of the vacant lot.2

Approximately one month later, federal district court Judge

Zilly similarly concluded that the new lis pendens notice vio-

lated his previous order to abstain from such filings, and

he imposed contempt sanctions of $3,400 in attorney fees

against both the accused and his mother, as well as a $2,500

sanction to be paid directly to the court. Judge Zilly again

ordered that no further lis pendens notices be filed.3

B.  The Family Home Dispute

Selling the family home appears to have proved just

as contentious as selling the vacant lot. In August 2002, the

accused filed a lis pendens notice on the house; his brother

filed another in March 2003. Shortly thereafter, Judge

Thibodeau ordered mother to vacate the home by May 10,

2003, or face sanctions.

As discussed above, in May 2003, the accused then

filed the property partition action in King County Superior

Court seeking, among other things, to quiet title to the house

and lot in mother’s favor alone. In September 2003, however,

the King County Superior Court ordered a venue change to

Snohomish County, noting that the Snohomish County court

was still engaged in effectuating the parties’ divorce decree.

In November 2003, Judge Thibodeau ordered

mother to release all lis pendens notices filed against the

family home and to use her best efforts to obtain releases of

all the other lis pendens notices filed by her children. Mother

2

The Washington Court of Appeals would later affirm that sanction in 2005

and award attorney fees to the accused’s father as well, citing frivolousness and

intransigence as contributing factors.

3

The Ninth Circuit Court of Appeals affirmed that contempt order in an

unpublished 2005 opinion, Sanai v. Sanai, 141 Fed Appx 677 (9th Cir 2005).

Cite as 360 Or 497 (2016) 505

subsequently complied with that order “under protest,” but

in May 2005, when the state court authorized acceptance of

a pending offer on the family home, the accused’s brother

filed yet another lis pendens notice against the residence.

Upon learning that fact, Judge Thibodeau recused himself,

explaining that he was no longer capable of impartiality in

the matters being litigated by the Sanais. Before doing so,

however, he pointedly noted that

“under no circumstances would I give [mother] any relief

in this courtroom. She doesn’t deserve it. [The accused and

his brother] don’t deserve any relief. You can take it all the

way to the Ninth Circuit if you want to read that, after I’ve

made this record, that they’ve acted in bad faith. They’ve

frustrated the entire process of this Court, and under any

circumstances, any relief that [mother] would get from any

court in my opinion is a windfall. You can quote that to the

next judge that’s going to hear it.”

See Sanai v. Sanai, 2005 WL 1593488, 1 n 2 (W.D. Wash)

(unpublished) (quoting transcript from state trial court

proceeding).

C.  Post-Dissolution Motions and Marriage Dissolution

Appeal

While stalling the sale of the house and lot with

the filing of lis pendens notices, the accused pursued his

mother’s appeal of the dissolution decree and filed a series of

motions in both the trial court and the Washington Court of

Appeals. In the home and vacant lot disputes set out above,

the accused had initially filed multiple “emergency motions”

related to the dissolution decree. Those motions included

various requests for relief, including stays, but all were

found to be either frivolous or otherwise without merit.

The accused also filed multiple motions with the

trial court seeking sanctions and protective orders, based on

an allegation that his father had revealed confidential health

information about mother. In August 2002, the accused

renewed those allegations in a similar motion tendered

to the Washington Court of Appeals. The appellate court

denied that motion on the grounds that the matter had to be

pursued in the trial court. The accused quickly filed another

motion and scheduled a hearing in the trial court. As with

506 In re Sanai

his previous motions, the accused sought a protective order

and sanctions based on an allegedly improper disclosure of

confidential patient information. This time, however, he tar-

geted his father’s former attorney. At the appointed time in

September 2002, that attorney appeared, but the accused

did not. As a result, the trial court ordered $500 in sanc-

tions against the accused and his mother.

In October 2002, the accused filed additional motions

with the Washington Court of Appeals, including a renewed

request for a protective order against his father. The result-

ing court order not only denied the accused’s motion but also

expressly warned that “counsel is on notice that frivolous

motion practice in this court could lead to sanctions.” The

accused moved to modify that ruling, albeit without success.

Despite that warning—and the previous sanctions

that had already been imposed against the accused and

his mother—in January 2003, the accused moved in the

Washington Court of Appeals for discretionary review of,

among other things, the orders (1) disqualifying him from

representing his mother and (2) holding his mother in con-

tempt. In referring those motions to an appellate panel for

its consideration, one appellate commissioner noted that “the

ongoing appellate litigation is spawning inordinate manage-

ment problems for the trial court, not to mention expenses

for the respondent.” In March 2003, the Washington Court

of Appeals dismissed the accused’s motions and, in the pro-

cess, made its sanctions warning more concrete: “We caution

that any future frivolous motions will result in sanctions.”

In April 2003, the accused filed the opening brief in

mother’s appeal from the trial court’s marriage dissolution

decree. The Washington Court of Appeals denied leave to

argue the matter and, in an unpublished December 2003

decision, held the appeal to be frivolous and filed for pur-

poses of delay. The court imposed a $10,000 sanction against

his mother.

Mother sought review of that decision in the

Washington Supreme Court, and, in March 2004, the

accused’s brother began inundating the court with a flurry

of review-related motions. The court went on to deny review

of that matter, as well as all of the accompanying motions,

Cite as 360 Or 497 (2016) 507

in November 2004. At the same time, the court imposed a

$4,000 sanction against the accused’s mother, again for friv-

olous filings and causing delay.

D.  Washington Supreme Court Filings and Related Motions

In April 2003—at about the same time as he was

filing the opening brief in mother’s dissolution appeal—the

accused also filed a motion with the Washington Supreme

Court for discretionary review of the rulings concerning

the alleged improper disclosure of his mother’s confidential

health information. One week later, he followed that motion

with another seeking to stay the original trial court order

requiring mother to vacate the family home. Shortly there-

after, he filed a similar motion with the Washington Court

of Appeals, requesting review of the same trial court order.

A Washington Court of Appeals commissioner ruled, how-

ever, that the court would not act, absent a showing that

the second motion was somehow different from the motion

pending before the Washington Supreme Court.

Despite the fact that his motion to stay the order

to vacate was still pending with the Washington Supreme

Court, the accused filed yet another motion with that body,

this time seeking to revise the trial court’s order. The

accused’s motions, however, were uniformly denied, as was

his subsequent request for clarification. In the weeks that

followed, the accused continued filing multiple motions with

the Washington Supreme Court, among them yet another

request for a protective order based on the alleged disclosure

of mother’s health information—the same claim that had

been rejected multiple times by various Washington courts

and for which the accused had previously been sanctioned.

In June 2003, a Washington Supreme Court com-

missioner ruled that the accused’s filings would not be con-

sidered by the court, denied the accused’s original motion

for discretionary review, and dismissed the proceedings.

Nevertheless, the accused spent the next several months

continuing to file a barrage of motions with the Washington

Supreme Court. Finally, in September 2003, the court’s

chief justice denied all the accused’s pending requests—

including a motion to modify the ruling denying review—

and imposed sanctions of $1,000 jointly and severally on the

508 In re Sanai

accused and his mother. All told, the dissolution case had

taken eight years to be resolved in the Washington courts.

The Snohomish County dissolution proceedings alone had

generated more than 800 docket entries.4 At about the same

time as the dissolution case ended, the Washington Supreme

Court forwarded the matter of the accused’s conduct to the

Washington State Bar Association (WSBA).

E.  Actions Against Judicial Officers

Following the Washington Supreme Court’s adverse

rulings in the matters described above, the accused and his

mother filed suit in federal court against the various judicial

officers who had ruled against them at both the appellate

and trial court levels. In December 2003, the federal dis-

trict court dismissed the pair’s action for lack of subject mat-

ter jurisdiction, characterizing it as an “attempt to obtain

review of unfavorable decisions of the Washington state

courts by wrapping their state law-based challenges in the

fabric of federal constitutional claims.” The Ninth Circuit

Court of Appeals affirmed that judgment in an unpublished

2005 opinion.

The accused also filed an action against the chief

justice of the Washington Supreme Court, alleging that the

accused’s civil rights had been violated in connection with

the disciplinary proceedings in Washington. In 2008, the

Ninth Circuit remanded that suit for dismissal.

F.  State and Federal Wiretap Actions, Miscellaneous

Claims, and Subpoenas

Approximately one year before the Snohomish

County court’s 2002 finalization of the Sanais’ divorce, the

accused, along with his mother, brother, and two other sib-

lings, began what would become a protracted series of state

and federal actions filed against the accused’s father, father’s

Internal Medicine and Cardiology (IMC) practice, and IMC

employee McCullough. Those actions alleged, among other

things, that father had unlawfully intercepted and recorded

various family communications from the IMC Seattle

offices. The first such action—filed in Los Angeles County

4

The Washington Supreme Court denied review of the final appellate matter

arising from those divorce proceedings in 2010.

Cite as 360 Or 497 (2016) 509

Superior Court—was dismissed for lack of jurisdiction. In

the second—filed in August 2002 in King County Superior

Court—the trial court would eventually conclude that there

was no evidence to support the wiretapping claims that the

accused had leveled against his father.

In October 2002—despite have recently initiated

their King County wiretap action—the accused and his

co-plaintiffs sued the defendants in federal court as well,

proffering claims of, among other things, illegal wiretap-

ping. In addition to seeking more than $9,000,000 in dam-

ages, the accused and his co-plaintiffs also moved for an

injunction and attempted to attach the family’s vacant lot

in an effort to enjoin disposition of that property pending

resolution of their federal claims. After district court Judge

Zilly denied injunctive relief, however, the accused and his

brother filed a second federal wiretapping complaint in

December 2002. As already noted above, based on that sec-

ond action, the accused’s brother filed another lis pendens

notice, violating state court Judge Thibodeau’s earlier order

to the contrary.

In March 2003, the accused’s second wiretapping

action was reassigned to Judge Zilly given its similarity to

the first action brought by the accused and his co-plaintiff

family members. When the lis pendens notice arising from

that second action came to Judge Zilly’s attention, it resulted

in the previously noted federal contempt sanction—$2,500

to the court and $3,400 in attorney fees—levied against the

accused and his mother.

By June 2003, the accused and his co-plaintiffs

had filed a third amended complaint in their federal action.

Shortly thereafter, the accused issued a subpoena to the

Whatcom Educational Credit Union, signing it as the attor-

ney for plaintiff Ingrid Buron Sanai, the accused’s sister.

That subpoena sought account statements from 1990 onward

for IMC employee McCullough, one of the defendants named

in the accused’s federal lawsuit. In issuing the subpoena,

however, the accused violated the Federal Rules of Civil

Procedure by failing to provide prior notice of the subpoena

to McCullough’s attorney. See FRCP 45(a)(4) (requiring sub-

poenas for the production of documents to be preceded by

510 In re Sanai

notice to the parties before they are issued and served). As

a result, Judge Zilly quashed the accused’s subpoena in July

2003.

The accused had nevertheless procured a host of

other discovery materials by using similar subpoenas in

other state and federal courts, a fact that had placed the

subpoenas beyond Judge Zilly’s jurisdiction to quash. In

response, the defendants filed motions for protective orders,

which Judge Zilly referred to a federal magistrate.

In October 2003, the magistrate found that a large

number of the subpoenas signed and used by the accused

had been calculated to harass the opposing parties, rather

than to lead to the discovery of relevant evidence. The mag-

istrate then ordered the accused to (1) refrain from issuing

any further subpoenas of the kind described in the mag-

istrate’s order without prior court approval; (2) return all

previously acquired documents to the defendants; and

(3) retain no copies of those materials.

The accused proceeded to violate that protective

order in several ways. First, he failed to return—and con-

tinued to use—documents that he had acquired through

improperly issued subpoenas. He explained his actions in

that regard by arguing that, “[o]nce Plaintiffs received the

discovery, Plaintiffs were free to use it. Magistrate Judge

Theiler’s order to return the discovery was too late. The cat

is out of the bag.”

Second, despite the order barring him from issuing similar

subpoenas without prior court approval, in October 2004,

the accused signed another subpoena as the attorney for his

sister. In issuing that subpoena to an insurance company

for, among other things, documents containing the names of

his father or McCullough, the accused once again violated

FRCP 45(a)(4) by failing to provide notice to McCullough’s

attorney before serving the subpoena.

In January 2005, Judge Zilly granted the defen-

dants’ motion for sanctions related to the insurance company

subpoena and awarded defendants $1,740 in attorney fees.

In doing so, Judge Zilly expressly categorized the accused’s

failure to provide opposing counsel with advance notice of

Cite as 360 Or 497 (2016) 511

the subpoena as “misconduct.” In addition, Judge Zilly dis-

qualified the accused from further participating as counsel

in the matter.

As noted above, the accused’s third amended federal

complaint had been filed in June 2003. Like its predecessors,

that complaint contained a variety of claims in addition to

the wiretapping allegations discussed above, including:

• Libel claims based on bar complaints that the accused’s

father and his lawyer had filed with the WSBA regard-

ing the accused’s conduct as a lawyer. The accused had

included a similar claim as part of the wiretapping

action filed earlier in King County Superior Court, but

the WSBA had subsequently informed the accused that

Washington State’s Rules for Enforcement of Lawyer

Conduct (ELC) barred such claims. See ELC 2.12 (pro-

viding that communications to the WSBA are “abso-

lutely privileged and no lawsuit predicated thereon may

be instituted against any grievant, witness, or other

person providing information.”) Despite notice of that

fact, the accused nevertheless raised the same libel

claim again as part of his federal action.

• Claims based on alleged disclosures of mother’s con-

fidential health information. As discussed above, the

accused’s pursuit of those claims at the state level had

already resulted in sanctions from both the trial court

and the Washington Court of Appeals. The accused

nevertheless asserted the same allegations as part of

his federal complaint.

• Claims brought under the Employee Retirement Income

Security Act (ERISA). The accused originally alleged

that IMC had committed ERISA violations against his

mother as a beneficiary of IMC’s retirement plan and

against himself as a “derivative beneficiary.” Although

Judge Zilly ruled that the accused had no standing to

make such a claim for himself, the accused neverthe-

less continued to assert ERISA-related allegations in

his own name.

In November 2003, Judge Zilly granted summary

judgment to the defendants on the libel claims noted above

citing, in part, the privilege contained in the ELC against

lawsuits based on communications to the bar. Nine months

512 In re Sanai

later—in July 2004—Judge Zilly denied the accused and his

co-plaintiffs leave to file a fourth amended complaint.

The accused, his brother, and mother responded

by filing yet another federal action in the District Court for

the Western District of Washington. Their new action was

quickly reassigned to Judge Zilly, who dismissed their first

two claims as substantially identical to the libel claims that

had been previously disposed of on summary judgment in

2003.

For refiling the libel claims, Judge Zilly subse-

quently imposed sanctions under FRCP 11 of $5,000 each

against the accused, his brother, and his mother. See FRCP

11(b) and (c) (providing that (1) by presenting pleadings in

federal court, attorneys certify that pleadings are not made

for improper purpose and (2) sanctions are authorized when

rule is violated). In doing so, Judge Zilly stated that the

new federal complaint “re-alleges frivolous causes of action

that were previously dismissed by the Court. Plaintiffs were

aware that this Court had previously rejected their legal

and factual arguments, and had the benefit of this Court’s

prior Orders when drafting [their] new Complaint.”

In January 2005, Judge Zilly ordered the accused

and his co-plaintiffs to show cause why their continued

misconduct should not warrant dismissal of their fed-

eral complaints with prejudice. In July 2005, Judge Zilly

rejected their arguments and dismissed with prejudice all

their remaining federal claims. Noting that the plaintiffs

had already been collectively sanctioned around $130,000

in both federal and state courts, Judge Zilly observed that

they had nonetheless opted to “persist in their misconduct.

Plaintiffs’ conduct shows that they will not respond to sanc-

tions. Clearly, no other sanction the Court might impose,

except for dismissal itself, would be effective in remedying

this misconduct.”

In addition to dismissal of those federal claims,

in November 2005, Judge Zilly imposed monetary sanc-

tions on the accused, his brother, and his mother totaling

$273,437.00. In March 2007, the trio garnered a further

sanction: $14,041.50 in attorney fees for the ERISA claims

contained in their third amended complaint. Judge Zilly

Cite as 360 Or 497 (2016) 513

found that the ERISA claim had been brought in bad faith

without any reasonable basis in law or fact.

As in the state-based dissolution case, the volume of

filings in the federal court cases was enormous. According

to the Bar, the first of the federal cases that the accused

and his co-plaintiffs filed compromised by itself 790 docket

entries. Judge Zilly described the litigation techniques

employed by the accused, his brother, and his mother in

their federal court actions as follows:

“Plaintiffs’ conduct in this litigation has been an indescrib-

able abuse of the legal process, unlike anything this Judge

has experienced in more than 17 years on the bench and 26

years in private practice: outrageous, disrespectful, and in

bad faith. Plaintiffs have employed the most abusive and

obstructive litigation tactics this Court has ever encoun-

tered, all of which are directed at events and persons sur-

rounding the divorce of [the] Sanai[s], including parties,

lawyers, and even judges. Plaintiffs have filed scores of

frivolous pleadings, forcing baseless and expensive litiga-

tion. * * *

“Plaintiffs have flatly refused to obey Orders of this

Court, to cooperate with discovery, and to comply with

their obligations under the Federal Rules. They have

refused to appear for depositions and respond to discovery.

When deposing opposing parties, their conduct has been

abusive and disrespectful. They have intercepted and wire-

tapped the phone calls of other represented parties in this

litigation. They have actively and improperly interfered

with discovery, and required this Court to intervene all too

frequently.”

See Sanai v. Sanai, 2005 WL 1593488, 1 (WD Wash)

(unpublished).

In July 2010, the Ninth Circuit issued an unpub-

lished decision affirming dismissal of the plaintiffs’ federal

claims. Sanai v. Sanai, 408 Fed Appx 1 (9th Cir 2010).

G.  Washington Disciplinary Proceedings

The Washington State Bar initiated disciplinary

proceedings against the accused in 2004, two years after

having admitted him to practice in Washington. Following

a series of delays, a hearing was finally scheduled for April

514 In re Sanai

2007. Several days before the hearing, however, the accused

sought a continuance on the ground that he was suffering

from dangerously high blood pressure. Although that condi-

tion appeared to have been confirmed in a signed statement

from the accused’s physician, the hearing officer neverthe-

less denied the continuance and conducted a full hearing

in the accused’s absence. The hearing officer would later

recommend disbarment for the accused, a recommendation

that was unanimously adopted by the Washington State

Bar’s disciplinary board.

But in 2009, a five-member majority of the

Washington Supreme Court reversed that outcome, hold-

ing that the hearing officer had abused his discretion in

failing to grant the accused’s requested continuance. In

re Disciplinary Proceeding Against Sanai, 167 Wash 2d

740, 225 P3d 203 (2009) (Sanai I). Four members of that

court, however, joined in a dissenting opinion authored by

then-Justice Chambers. In the dissent’s view, the hearing

officer

“was fully justified in denying another frivolous motion

brought only for the purpose of delay. This was [the

accused’s] third request for a continuance on a hearing

that had already been delayed two years. [The accused’s]

attempt to delay was not limited to his own discipline case;

the record (which the hearing examiner was well aware of

when he denied the motion for a continuance) establishes

a long standing pattern of delay through myriad tactics,

including the filing of frivolous motions for reconsideration

and appeal, failing to properly serve documents, refusing

to appear for depositions, refusing to produce documents

pursuant to orders, and numerous other excuses for his or

his client’s failure to comply with rules and orders of the

courts. These excuses have included automobile collisions,

office moves, press of existing motions, a sick mother, and

the birth of a child.”

Id. at 755-756 (Chambers, J. dissenting). The accused’s

excuses, the dissent continued, might normally warrant

judicial sympathy, save for the fact that the accused had

already established “an unprecedented record of engaging

in abusive and vexatious practices by filing baseless lawsuits

and endless motions and appeals (often in direct violation of

Cite as 360 Or 497 (2016) 515

court orders) in courts up and down the West Coast.” Id. at

756.

At the new disciplinary hearing, the accused

appeared and testified, and a second disbarment recommen-

dation followed. On appeal, the Washington Supreme Court

upheld that recommendation in a written opinion disbarring

the accused. In re Disciplinary Proceeding Against Sanai,

177 Wash 2d 743, 302 P3d 864 (2013) (Sanai II). That opin-

ion set out in detail the various undertakings that, in the

court’s view, had warranted revoking the accused’s license

to practice law and offered the following concise summation

of the accused’s misconduct:

“Sanai filed multiple frivolous motions and claims for pur-

poses of harassment and delay, repeatedly and willfully

disobeyed court orders and rules, brought frivolous suits

against judges who ruled against him, and filed similar

claims multiple times in multiple jurisdictions for purposes

of delay. * * * The hearing officer found many of these viola-

tions occurred multiple times, were intentional, and caused

actual harm.”

Id. at 746. The accused sought reconsideration, raising

essentially the same due process concerns that he now pres-

ents to this court. The Washington Supreme Court denied

reconsideration in August 2013.

H.  Oregon Disciplinary Proceedings

In September 2013, the Oregon State Bar filed

notice with this court regarding the accused’s disbarment in

Washington, and with it, a recommendation for reciprocal

discipline—disbarment—in Oregon. The accused’s response

followed. In the interim, the accused unsuccessfully peti-

tioned the United States Supreme Court for a writ of certio-

rari in Sanai II. Sanai v. Washington State Bar Association

Disciplinary Board, ___ US ___ 134 S Ct 1324, 188 L Ed 307

(2014).

After considering the disciplinary recommendation

and the accused’s response, in May 2014, this court referred

the matter to the Disciplinary Board for the purpose of tak-

ing testimony on two issues: (1) whether the disciplinary

procedures afforded the accused in Washington had been

516 In re Sanai

lacking in notice or opportunity to be heard, BR 3.5(c)(1),

and (2) whether this court should now reciprocally discipline

the accused, BR 3.5(c)(2). The hearing before an Oregon dis-

ciplinary trial panel took place in February 2015, and, in

July 2015, the trial panel issued its opinion and order. The

trial panel determined that the accused (1) had received ade-

quate notice and opportunity to be heard in the Washington

disciplinary proceedings and (2) should receive the same

sanction in Oregon: disbarment.

III.  ARGUMENTS ON REVIEW

On review, the accused presents seven assignments

of error, arguing that he should not be reciprocally disci-

plined, by disbarment, in Oregon. Some of his challenges

address the propriety of the Washington disciplinary pro-

ceedings, including the appeal in Sanai II, and some address

the Disciplinary Board hearing in Oregon.

The accused notes that, under BR 3.5(1), an attor-

ney responding to a notice of discipline for misconduct in

another jurisdiction and a recommendation for reciprocal

discipline in Oregon must address whether “the procedure”

in the other jurisdiction was “lacking in notice or opportu-

nity to be heard.” Judging by the nature of his challenges

to the disciplinary proceedings in both Washington and

Oregon, and his reliance on Goldberg v. Kelly, 397 US 254,

90 S Ct 1011, 252 L Ed 2d 287 (1970), the accused appar-

ently assumes that BR 3.5(1) broadly permits him to make

a variety of process-based arguments concerning all the

disciplinary proceedings related to this matter. As to the

Washington disciplinary proceedings, the accused contends

that (1) he was denied a right to confront certain witnesses at

his hearing; (2) his appeal did not comport with due process

because the Washington Supreme Court denied his motion

to file a brief longer than permitted by the appellate rules;

and (3) the Washington Supreme Court was not impartial,

arguments that are all part of his overarching position that

he was not afforded “an opportunity to be meaningfully

heard.” Further, the accused asserts that the hearing before

the Disciplinary Board in Oregon was fatally defective in

numerous aspects, from evidentiary rulings to the composi-

tion of the Disciplinary Board’s panel.

Cite as 360 Or 497 (2016) 517

The accused concludes that this court should

(1) dismiss this matter altogether and impose no disciplinary

sanction in his case; (2) sanction him with something less

than disbarment; or (3) order a new hearing before a differ-

ent trial panel. Not surprisingly, the Bar takes a decidedly

different view. It writes:

“In finding that the Accused should be disbarred here,

the Oregon panel noted that the Accused’s ‘misconduct

continued for years unabated, despite numerous admoni-

tions and instructions by a number of judges, and extended

even into the reciprocal discipline proceeding, in which

the Accused still tried to ‘game the system.’ The Accused’s

discipline by the Washington court resulted from fair pro-

ceedings that afforded notice and ample opportunity to be

heard. Disbarment is clearly warranted by the Accused’s

record of large scale vexatious conduct, relentless abuse,

obstruction, and bad faith.”

A.  The Oregon Reciprocal Disciplinary Hearing

We begin with the accused’s challenges to the suffi-

ciency of the hearing that he received in Oregon. We begin

here because, if, as the accused contends, the proceedings

against him in Oregon were fundamentally flawed, then our

consideration of his arguments regarding the proceedings

against him in Washington would be premature. However,

as we explain below, we reject the accused’s argument that

he is entitled to a rehearing in Oregon.

1.  Improper appointment of trial panel

The accused contends that he is entitled to a new

hearing because the trial panel was improperly constituted.

According to the accused, that issue concerns who selected

the trial panel and the Bar region from which the members

of the trial panel were selected.

As part of the preparations for the accused’s dis-

ciplinary proceeding, in July 2014, the disciplinary chair-

person for Region 4 appointed a trial panel drawn from

among Region 4 lawyers to hear arguments in that mat-

ter. In reciprocal discipline cases, however, the Bar Rules of

Procedure appear to anticipate trial panels appointed by the

state chairperson, not a regional chairperson. See BR 3.5(g)

518 In re Sanai

(noting that, in reciprocal discipline matters, “[a] trial panel

appointed by the state chairperson shall make a decision

concerning the issues submitted to it”) (emphasis added).

In April 2015, several months after the accused’s

hearing was completed, but before the trial panel issued its

decision, the State Disciplinary Board Chair sent a letter

to the parties ratifying the appointment of the trial panel

members. The letter explained:

“It has come to my attention that a Trial Panel was

appointed for the above captioned matter by the Regional

Chair, as is standard with Trial Panels. The Bar Rules of

Procedure are not clear as to whether the Regional Chair

has the right to make such an appointment in a reciprocal

discipline case. To the extent there is any concern about a

possible procedural error in the appointment of the Trial

Panel, I find there was no prejudice to either party by the

potential procedural error. Both sides still had the opportu-

nity to exercise any challenges to the Trial Panel in accor-

dance with the Bar Rules.”

Shortly thereafter, the accused responded with his own let-

ter objecting to what he described as a “late, post-hearing

ratification of the Trial Panel improperly appointed by the

Regional Chair.”

On review, the accused contends that, under BR

3.5(g), only the state chair was authorized to appoint the

trial panel that would hear his reciprocal discipline case.

The failure to do so, the accused argues, constituted “struc-

tural error,” a problem, he maintains, that was compounded

by the fact that the trial panel that heard his case was drawn

entirely from Region 4 (Washington and Yamhill counties).

According to the accused, the panel should have been drawn

from Region 7 (Clackamas County), the region where he had

lived and worked during this matter.

That procedural misstep, the accused asserts, auto-

matically requires a new trial, even without any demon-

stration of prejudice to him. He draws that proposition from

an observation taken from this court’s decision in In re

Hendrick, 346 Or 98, 107, 208 P 3d 488 (2009):

“[I]f the trial panel was not properly constituted, there is

no way to know whether a properly constituted trial panel

Cite as 360 Or 497 (2016) 519

would have created the same record, made the same rul-

ings, or construed the evidence in the same way, much less

reached the same conclusions that this one did.”

Alternatively, the accused continues, he was prejudiced

by the improperly constituted trial panel because, in his

view, the actions of its members “demonstrated its bias and

unwillingness to give the Accused a full and fair hearing.”

We begin here by noting that, when the trial panel

that heard his case was formed, the accused did not peremp-

torily challenge, nor challenge for cause, any member’s

appointment. Neither did the accused object to or otherwise

express concerns regarding the make-up of the panel before,

during, or at the close of trial. He did not raise concerns

in his written closing arguments or in the course of rais-

ing objections to the transcript. Indeed, there is no evidence

that the accused perceived or believed that the appointed

panel members could not or would not conduct a fair hearing

of his case. And, on the first day of the hearing, two panel

members disclosed on the record that they were personally

acquainted or “fairly good” friends with six of the accused’s

character witnesses.

That scenario stands in stark contrast to the facts

underlying In re Hendrick, the case on which the accused

relies. In Hendrick, the disciplinary board chair had denied

an accused lawyer’s peremptory challenge to a panel mem-

ber when, after the case’s first trial panel had been dis-

missed due to the equivalent of a mistrial, the disciplinary

board chair appointed a new three-person panel. Because

the lawyer had already exercised a peremptory challenge

when the first panel was appointed, the chairperson refused

to allow him a second such challenge with regard to the

new panel. On appeal, this court held that the disciplinary

chair had erred in doing so because that action had effec-

tively rendered the lawyer powerless to remove any member

from the new panel in the absence of cause. Because the

lawyer’s case was not heard by a properly constituted trial

panel, the court reasoned, a new trial before a new panel

was warranted.

In this case, to the extent that the trial panel was

not properly constituted, any impropriety stemmed solely

520 In re Sanai

from a procedural error, rather than an error—like the error

in Hendrick—that effectively prevented the accused from

removing a panel member that he otherwise had a right to

remove. Consequently, we conclude that the appointment of

the trial panel here could not have constituted “structural

error,” because it did not deny the accused any procedural

right or otherwise restrict his ability to actively partici-

pate in composing a trial panel whose impartiality he could

trust.5

2.  The accused’s right to counsel

The accused contends that the Oregon trial panel

violated his right to counsel when it did not permit his

brother to represent him. According to the accused, the

attorney he had retained to represent him in this matter

unexpectedly withdrew several weeks before the accused’s

February 2, 2015, trial panel hearing. Several days before

the hearing was to begin, the accused filed a motion and

completed application for the pro hac vice admission of his

brother, Cyrus Sanai, to represent him in Oregon.

In opposing that motion, the Bar noted, among other

things, that (1) the accused knew that the Bar intended to

call Cyrus Sanai as a witness if he appeared in Oregon, a

fact that would necessitate his withdrawal as counsel and

raise the likelihood of a lengthy set-over request if Cyrus

was allowed to represent the accused, and (2) the California

State Bar had filed its own set of nine disciplinary charges

against Cyrus Sanai in January 2014. Those charges

remained pending up to and through the accused’s 2015

Oregon trial panel proceedings.6 Of those charges, five

alleged a failure to report the imposition of judicial sanctions

5

We note, furthermore, that Region 4 was, in fact, the region in which the

accused practiced law and served as Yamhill County legal counsel from 1999

through 2013. As a result, had the state chair appointed the trial panel in this

matter, it is likely that the panel would have still been selected from Region 4,

given the accused’s long-standing professional ties to the area.

6

On March 20, 2015—more than a month after the disciplinary proceedings

against the accused were completed—the California State Bar dismissed all but

one of the charges against Cyrus Sanai. That remaining charge, encouraging the

continuance of an action from a corrupt motive of passion or interest, was held in

abeyance pending resolution of the action out of which it arose. At the time of this

writing, that disciplinary charge remained pending before the California State

Bar.

Cite as 360 Or 497 (2016) 521

to the California Bar; three alleged conduct involving moral

turpitude—interfering with the sale of property out of a cor-

rupt motive, bringing or maintaining frivolous judicial com-

plaints, and altering the service list on a filed pleading; and

one alleged that Cyrus Sanai had encouraged the continu-

ance of an action from a corrupt motive, passion, or interest.

The trial panel denied the accused’s motion to have

Cyrus Sanai admitted pro hac vice to represent him. The

accused represented himself at his hearing.

The accused now argues that, under the Fifth and

Fourteenth Amendments, he possessed a constitutional right

to be represented by the attorney of his choice. According to

the accused, the United States Supreme Court’s decision in

United States v. Gonzalez-Lopez, 548 US 140, 126 S Ct 2557,

165 L Ed 2d 409 (2006), stands for the proposition that the

right to counsel includes the right to have counsel pro hac

vice. He also relies on McCuin v. Tex. Power & Light Co., 714

F2d 1255 (5th Cir 1983), for the proposition that the Fifth

Amendment guarantees civil litigants the right to retained

counsel, which ordinarily includes the right to be repre-

sented by the counsel of their choosing. Those rights, the

accused argues, are particularly salient in this situation,

where (1) he had limited time to secure alternative counsel;

(2) his brother possessed a unique knowledge of this case;

and (3) no good reason existed to deny Cyrus Sanai pro hac

vice admission in Oregon.

The accused’s right to have his brother represent

him in this matter was not absolute, as the cases on which

he relies note. In Gonzalez-Lopez—a criminal case—the

Supreme Court did, indeed, hold that the erroneous depriva-

tion of the defendant’s right to retain counsel of his choosing

qualified as structural error requiring reversal of his crimi-

nal conviction. Yet the Court then pointedly observed that

“[n]othing we have said today casts any doubt or places

any qualification upon our previous holdings that limit the

right to counsel of choice and recognize the authority of trial

courts to establish criteria for admitting lawyers to argue

before them.”

Gonzalez-Lopez, 548 US at 151 (emphasis added). The Court

recognized that trial courts have wide latitude in balancing

522 In re Sanai

a defendant’s right to his or her choice of counsel with, among

other things, (1) the needs of fairness; (2) the demands of the

trial court’s calendar; and (3) the need to ensure that trials

are “conducted within the ethical standards of the profes-

sion[.]” Id. at 152.

The Fifth Circuit Court of Appeals adopted a simi-

lar stance in McCuin. That court noted, among other things,

that civil litigants have a right to be represented by counsel

and that that right ordinarily implies a right to retain the

lawyers of their choice. McCuin, 714 F2d at 1262. The Fifth

Circuit added, however, that the right to counsel does not

“entail absolute freedom of choice,” given, for example, the

basic requirement that chosen counsel must be a member of

the bar in the forum state. Furthermore, the court contin-

ued, compelling interests could override that right:

“The right to counsel of one’s choice may be overridden

when ‘compelling reasons exist.’ The right should be bal-

anced in cases in which it is challenged against the right

to ‘untainted prosecution of the lawsuit’ and society’s need

to maintain the highest ethical standards of professional

responsibility. It cannot be exercised without thought also to

the needs of effective administration of justice.”

Id. at 1263 (footnotes omitted; emphasis added).

As the explanations set out above make clear, the

tenets recognized in Gonzalez-Lopez and McCuin do not, as

the accused suggests, militate for an unrestricted right to

out-of-state counsel of one’s choice. Instead, those tenets—

specifically, the broad authority of tribunals to establish

criteria for admitting the lawyers who will argue before

them and the need to maintain high ethical standards and

effective administration of justice—establish that the right

to choose counsel may be overridden when chosen counsel

is not admitted to the bar of the forum state and has not

been admitted pro hac vice in accordance with the tribunal’s

criteria.

In Oregon, this court expressly adopted Uniform

Trial Court Rule (UTCR) 3.170 for the purpose of regulating

the appearance of pro hac vice counsel in this jurisdiction.

See ORS 9.241 (authorizing Oregon Supreme Court to adopt

Cite as 360 Or 497 (2016) 523

such rules). Under that rule, courts or administrative bodies

faced with requests for pro hac vice admission

“shall grant the application by order if the application sat-

isfies the requirements of this rule, unless the court or

administrative body determines for good cause shown that

granting the application would not be in the best interest of

the court or administrative body or the parties.”

UTCR 3.170(3) (emphasis added).

Here, the trial panel was faced with (1) a last-

minute application for pro hac vice admission of the accused’s

brother in Oregon; (2) the serious nature of the California

disciplinary charges facing the accused’s brother at the

time of that application; and (3) the likelihood that, even

if allowed to represent the accused, the accused’s brother

could nevertheless be required to withdraw after being sub-

poenaed as a witness once within this jurisdiction. Given all

those factors, we conclude that there was “good cause shown”

from which the trial panel could reasonably conclude that,

because of the likelihood of undue disruption and delay, it

was not “in the best interests” of the tribunal to allow the

accused’s brother to represent him. According to Oregon’s

Bar Rules of Procedure, those chairing disciplinary trial

panels are broadly authorized to facilitate an efficient and

orderly hearing. See BR 2.4(h) (describing duties of a trial

panel chairperson). Under the circumstances noted above,

by denying the accused’s motion for the pro hac vice admis-

sion of Cyrus Sanai, the trial panel chair did nothing more

than fulfill that obligation.

3.  Mass admission of exhibits offered by the Bar

The accused argues that some of the trial panel rul-

ings regarding the conduct of the hearing were incorrect.

One of those challenged rulings concerns the admission of

the Bar’s exhibits.

At the accused’s disciplinary hearing, the Bar sub-

mitted multiple exhibits drawn from the evidentiary record

that had been generated in the accused’s Washington State

Bar proceedings. Those exhibits—totaling some 4,000

pages—were submitted to the trial panel on a single CD

ROM. The accused proffered a blanket objection to the

524 In re Sanai

exhibits, arguing that he had a right to individually examine

and contest the admissibility of those documents as neces-

sary. As grounds for his omnibus objection, the accused cited

relevance, reliability, lack of foundation, lack of authentica-

tion, violation of his right to confront the witnesses against

him, lack of opportunity to raise individualized objections,

and prejudice to his ability to present a full and fair defense.

The trial panel nevertheless admitted those materials into

evidence, inviting both the accused and the Bar to tender

written objections in post-hearing memoranda to any indi-

vidual exhibits. The accused, however, opted instead to sim-

ply reiterate his blanket objections.

The accused now notes that BR 5.1(a) provides that

“[i]ncompetent, irrelevant, immaterial, and unduly repeti-

tious evidence should be excluded at any hearing conducted

pursuant to these rules.” Building on that foundation, he

argues that, by (1) admitting the Bar’s exhibits without

any preliminary demonstration of relevance, materiality,

and the like, and (2) denying him the opportunity to indi-

vidually object to those exhibits at the time that they were

offered, the trial panel erred and, in the process, prejudiced

his ability to present a full and fair defense at his hearing.

According to the accused, the trial panel’s offer of a post hoc

opportunity to challenge those materials was insufficient to

rectify the legal error that occurred at the actual hearing,

and it now requires that he receive a new trial.

Several considerations, however, lead us to con-

clude that that position is not well taken. First, the exhibits

were taken from the evidentiary record established in his

Washington disciplinary proceedings, and, at the very least,

many—if not all—of the Washington exhibits were relevant

to whether the accused was afforded due process in those

proceedings and whether the accused should be disciplined

in Oregon. The accused cites no authority for the notion that

the exhibits in question required some additional demon-

stration of relevance or materiality, and we are unaware of

any that would apply to the particular facts of this case.

Second, the accused was not ambushed by those

exhibits when they arrived in Oregon, and it is not beyond

the pale to suggest that the accused had more than a passing

Cite as 360 Or 497 (2016) 525

familiarity with each of them. The accused, moreover, was

in a position to object to individual exhibits as needed after

the hearing.

Third, as a matter of Oregon law, when parties raise

objections in the course of a proceeding, they are obliged

to accompany those objections with explanations specific

enough and clear enough to ensure that a decision maker

can immediately identify, consider, and correct the alleged

error if warranted. State v. Wyatt, 331 Or 335, 343, 15 P 3d

22 (2000). Failure to adequately do so leaves such arguments

insufficiently preserved for consideration on appeal. State v.

Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015).

Here, the accused asserted multiple grounds to

underpin his objection to the exhibits proffered by the Bar,

but he failed to establish even a cursory nexus between

those grounds and any actual exhibit or exhibits. That lack

of clarity made it virtually impossible for the trial panel to

identify specific errors committed in admitting those exhib-

its, much less correct them. Because the accused did not

attempt to segregate admissible exhibits from inadmissible

ones by making specific objections when given the opportu-

nity to do so, the accused’s argument below regarding the

Bar’s exhibits was too vague to render it sufficiently pre-

served for our consideration on review. See, e.g., Sproul v.

Fossi, 274 Or 749, 755, 548 P2d 970 (1976) (“when evidence

is offered as a whole and an objection is made to the evi-

dence as a whole and is overruled, the trial court will ordi-

narily not be reversed on appeal if any portion of the offered

evidence was properly admissible, despite the fact that other

portions would not have been admissible had proper objec-

tions been made to such portions of the offered evidence”).

4.  The right to confront witnesses

Much as he had done in his Washington disci-

plinary proceedings, the accused attempted to subpoena the

authors of the opinions and orders that had been submitted

as evidentiary exhibits in his Oregon disciplinary proceed-

ings. That effort was unsuccessful. The accused now con-

tends that he was improperly prevented from confronting

those witnesses and thereby deprived of a fair hearing in

526 In re Sanai

Oregon. His arguments in that regard essentially mirror

the confrontation-related arguments that he presents con-

cerning his Washington disciplinary proceedings. As dis-

cussed in greater detail later within this opinion, we reject

those arguments as they apply to Oregon’s disciplinary pro-

ceedings for the same reason that we reject the accused’s

confrontation arguments regarding his Washington disci-

plinary proceedings.

Before turning to those Washington proceedings,

however, we briefly address a confrontation argument pre-

sented by the accused that relies on an early 20th century

Oregon bar admission case. In In re Crum, 103 Or 296, 301,

204 P 948 (1922), this court stated:

“In a proceeding of this kind, the applicant is enti-

tled to confront the witnesses, to subject them to cross-

examination, and to invoke the protection of the tried,

wise, and well-settled rules of evidence.

“It has been written that—

“ ‘It is essential to the administration of justice accord-

ing to law, that the recognized rules of evidence should be

observed in this class of cases as well as in all others.’ ”

According to the accused, Crum stands for the proposition

that, in Oregon bar disciplinary proceedings, due process

requires the opportunity to cross-examine witnesses whose

written statements are used in the course of a disciplinary

proceeding.

We note that there was a time when this court’s

case law embraced the notion that all rules of evidence were

applicable in lawyer discipline proceedings. That, however,

was more than 90 years ago. Since then, this court has held

that, in lawyer discipline proceedings, the essential ele-

ments of due process are notice and an opportunity to be

heard and to defend “in an orderly proceeding adapted to

the nature of the case before a tribunal having jurisdiction of

the cause.” In re Conduct of Devers, 328 Or 230, 232, (1999)

(emphasis added).

Over the years, changes to the procedures used in

disciplinary proceedings have effectively moved those pro-

ceedings away from the bright-line proscription against

Cite as 360 Or 497 (2016) 527

hearsay evidence set out in the Oregon Evidence Code.

Consequently, with regard to evidentiary matters, BR 5.1(a)

now expressly embraces any probative evidence commonly

accepted by “reasonably prudent persons in the conduct of

their affairs.” As a result, this court has concluded that

hearsay evidence meeting that standard is admissible in

disciplinary proceedings. In re Gildea, 325 Or 281, 296 n 18,

936 P2d 975 (1997); In re Conduct of Taylor, 319 Or 595,

602 n 6, 878 P2d 1103 (1994). Thus, even assuming that, as

the accused views it, the judicial orders and opinions would

constitute inadmissible hearsay under the Oregon Evidence

Code, the notion that, under Crum, the accused possessed

a right to exclude them or, alternatively, to subpoena the

judicial officers who had authored them, is simply counter

to the otherwise clear rules relied on today by this court in

disciplinary proceedings. We reject the accused’s contrary

argument.7

B.  The Washington Disciplinary Hearing: The Right to

Confront Witnesses

In accordance with BR 3.5(c)(1), the accused chal-

lenges discipline based on his conduct in Washington by

arguing that he was not afforded due process of law in the

Washington disciplinary proceedings. In the accused’s view,

those proceedings did not provide him with a meaningful

opportunity to be heard. We begin with his argument that

due process was lacking because he was not permitted to

confront witnesses as required by the Confrontation Clause

of the Sixth Amendment to the United States Constitution.

At the onset of the accused’s second disciplinary

hearing in Washington, the hearing officer indicated to the

parties that, in resolving evidentiary and other procedural

questions, he would make his rulings “based upon the legal

principles that disciplinary proceedings are neither civil nor

criminal but are sui generis hearings intended to determine

7

The accused takes issue with several other rulings of the trial panel regard-

ing prehearing motions, witness lists, and the like; we reject those additional

grounds for a new hearing without written discussion. See BR 5.1(b) (“No error

in procedure, in admitting or excluding evidence, or in ruling on evidentiary or

discovery questions shall invalidate a finding or decision unless upon a review of

the record as a whole, a determination is made that a denial of a fair hearing to

either the Bar or the accused has occurred.” (Emphasis added.)).

528 In re Sanai

whether a lawyer’s conduct should have an impact upon his

or her license to practice law.” The hearing officer then went

on to instruct the parties that

“[e]vidence, including hearsay, is admissible if in my

judgment this is the kind of evidence on which reasonably

prudent persons are accustomed to rely in the conduct of

their affairs. I may exclude evidence that is irrelevant,

immaterial, or unduly repetitious. Where not inconsistent

with these principles I shall use the Washington Rules of

Evidence and the Washington Administrative Procedures

Act.”

The Washington State Bar would eventually intro-

duce into evidence a plethora of judicial orders and opin-

ions related to the accused’s conduct, almost all of which

were admitted over the accused’s hearsay objections to the

use of each order as substantive evidence. At one point, the

accused appeared to broadly argue that he was also entitled

either (1) to have the authors of those documents present

themselves and explain the decisions contained therein or

(2) to have the orders in question excluded from evidence.

The accused, however, raised specific confrontation clause

objections to only four of those orders, three of which were

overruled and one of which was sustained.

The accused also attempted to subpoena several

of the judicial officials who had been involved in different

aspects of his parents’ divorce, among them, a special mas-

ter in the dissolution case, Washington superior court judge

Thibodeau, and federal district court judge Zilly. Those

efforts, too, proved unavailing.

On appeal, the Washington Supreme Court held

that the accused had failed to preserve the vast majority of

his confrontation clause objections and, where those objec-

tions had been preserved, the evidence at issue was either

not offered for the truth of the matter asserted or the mat-

ter in question was so clearly established by other evidence

that it rendered any supposed error harmless. Sanai II, 177

Wash 2d at 764-65. The Washington Supreme Court also

held that, according to the accused’s own concessions, the

testimony sought from the subpoenaed judges was irrele-

vant. The court wrote:

Cite as 360 Or 497 (2016) 529

In his posthearing motion to reopen the disciplinary pro-

ceedings, [the accused] stated that he wanted to cross-

examine the judges so that they would ‘acknowledge that

the new facts create doubt about the correctness of their

rulings.’ But the correctness of the judicial rulings in the

cases upon which these proceedings are based is irrelevant

to whether [the accused’s] actions violated RPC 3.1, RPC

3.2, RPC 3.4(c), RPC 4.4, RPC 8.4(a), RPC 8.4(d), RPC

8.4(j), RPC 8.4( l ), and RPC 8.4(n). The hearing officer’s

decision to quash the subpoenas was not error.

Sanai II, 177 Wash 2d at 768.

On review, the accused first asserts that his right

to confront witnesses was violated in the Washington hear-

ing when he was denied the opportunity to subpoena and

cross-examine the judicial officers whose written orders and

opinions were admitted into evidence at his disciplinary pro-

ceeding. Absent that right of confrontation, the accused con-

tinues, that evidence should have been excluded altogether.

The accused contends that that is so for several reasons.

First, the accused argues that, under the

Washington Supreme Court’s decision in In re Discipline

of Deming, 108 Wash 2d 82, 736 P2d 639 (1987), attorneys

who face disbarment must be afforded the same due pro-

cess rights as criminal defendants, including the right to

confront witnesses afforded by the Confrontation Clause.

In Deming—a judicial misconduct case—the Washington

Supreme Court wrote that judges accused of misconduct are

entitled to no less procedural due process than individuals

accused of crimes and that judges and lawyers facing dis-

barment are entitled to the same procedural due process

protections. Id. at 103. The accused contends that, had he

been allowed to cross-examine the authors of the adverse

orders and opinions addressing his conduct, he could have

shown that (1) his father had perpetrated a fraud on the

court in the course of the divorce proceedings below; (2) the

judges in question were aware of that fraud; and (3) those

judges were unwilling to allow the accused to reopen his

parents’ dissolution proceeding to expose it.

Ultimately, however, the accused’s reliance on

Deming to support his argument regarding confrontation is

530 In re Sanai

misplaced. As a threshold matter, it is important to under-

stand that many of the rights that inure to criminal defen-

dants are largely inapplicable in proceedings such as these,

because attorney discipline matters are not criminal prose-

cutions. In both Oregon and Washington, bar discipline pro-

ceedings are sui generis—expressly recognized as neither

civil nor criminal in nature. See BR 1.3; ORS 9.529; ELC

10.14(a) (so stating).

Moreover, the accused overlooks that, seven years

after Deming, the Washington Supreme Court retreated

from its comment that a judge accused of misconduct is

“entitled to no less procedural due process than one accused

of crime.” Writing in a 1994 judicial discipline case—In re

Discipline of Ritchie, 123 Wash 2d 725, 730, 870 P2d 967

(1994)—the Washington Supreme Court stated:

“The judge’s constitutional arguments are not well-

taken, insofar as they are premised on the notion judges

in disciplinary proceedings are entitled to the same rights

as criminal defendants. The applicable standard is civil

in nature. Previous suggestions to the contrary in In re

Deming were unnecessary to its holding.”

(Internal citations omitted.) In short, more than 20 years

ago, the Washington Supreme Court disavowed the tenet for

which the accused now cites Deming.

Next, the accused argues that we should conclude

that his confrontation rights were violated in Washington

under that jurisdiction’s “appearance of fairness” doctrine,

which provides that

“proceedings before a quasi-judicial tribunal are valid only

if a reasonably prudent and disinterested observer would

conclude that all parties obtained a fair, impartial, and

neutral hearing.”

Matter of Johnston, 99 Wash 2d 466, 478, 663 P2d 457

(1983). According to the accused, his disciplinary hearing

in Washington did not meet the standard because, under

Weyerhaeuser v. Pierce County, 124 Wash 2d 26, 873 P2d

498 (1994), the “appearance of fairness” doctrine requires

that, with regard to any document containing facts or con-

clusions of law used as evidence in a proceeding, the author

Cite as 360 Or 497 (2016) 531

of that document may be called to testify concerning its

contents—an opportunity that, according to the accused, he

was denied.

Like the accused’s reliance on Deming, however,

his reliance on Weyerhaeuser is based on a misreading of

Washington law. In Weyerhaeuser, the plaintiffs had chal-

lenged an environmental impact statement prepared by

county employees regarding a proposed sanitary landfill. In

the course of public hearings on the proposed project, the

county hearing examiner had ruled that the plaintiffs were

prohibited from calling the authors of the environmental

study to testify. The Washington Supreme Court reversed

that ruling, citing provisions of the county code. In doing so,

Washington’s high court made clear that its decision was not

predicated on the state’s “appearance of fairness” doctrine:

“Because we decide this issue on the basis that oral cross

examination of the county staff is required under Pierce

County Code 2.36.090, we do not address the due process

and appearance of fairness doctrine arguments.”

Weyerhaeuser 124 Wash 2d at 31-32. As a result, Weyerhaeuser

provides no support for the accused’s “appearance of fair-

ness” argument.

Accordingly, we reject the accused’s argument that

the Washington disciplinary hearing did not afford him due

process because he was not allowed to subpoena judicial offi-

cers and to subject them to cross-examination.

C.  Appeal in Sanai II

1.  The right to be meaningfully heard

The accused also contends that his appeal before the

Washington Supreme Court lacked due process. Specifically,

the accused first argues that the Washington Supreme

Court denied his due process right to be meaningfully heard

when it denied his motion to file an over-length brief.

In his second Washington disciplinary proceeding,

the accused filed—with the disciplinary board’s permission—

an extended 115-page brief. In preparing his appeal to

the Washington Supreme Court from the disbarment

532 In re Sanai

recommendation that followed, the accused moved for leave

to file a 132-page opening brief and submitted a draft copy of

the proposed brief. The court, however, denied that motion,

effectively requiring the accused’s appellate brief to meet

the 50-page limit imposed by Washington Rules of Appellate

Procedure (WRAP) 10.4(b).

In the brief that he filed, the accused challenged

180 of the 229 findings and conclusions of the hearing offi-

cer, but he provided the required arguments and citation to

the record for only one. Sanai II, 177 Wash 2d at 760. The

Washington Supreme Court declined to consider the other

179 fact-related assignments of error, citing its own case law

for the proposition that attorneys challenging such findings

in disciplinary proceedings “must argue why the findings

are not supported by the evidence and cite to the record in

support of the argument.” Id. at 761. The court noted that

“the record of this 14-day proceeding, containing more than

2,300 pages of transcript and nearly 500 exhibits, fully sup-

ports the hearing officer’s findings and conclusions.” Id.

According to the accused, it was physically impos-

sible for him to challenge 56 pages of findings while main-

taining the 50-page brief limit imposed by WRAP 10.4(b).

He contends that he possessed a due process right to present

all his arguments on appeal and that the court’s refusal to

allow him adequate space to do that constitutes structural

error, as described in Arizona v. Fulminante 499 US 279,

310, 111 S Ct 1246, 113 L Ed 2d 302 (1991) (Rehnquist, C. J.

dissenting) (noting that structural error is error affecting

the framework from within which a trial proceeds, and

without which a criminal trial cannot function as a vehicle

to determine guilt or innocence).

We note, however, that even the United States

Supreme Court routinely rejects requests to extend or waive

the page limitations that it has set for documents being filed

with the Court. See, e.g., Michigan v. Clifford 460 US 1033,

103 S Ct 1421, 75 L Ed 2d 784 (1983) (denying party’s request

to extend page limits for opening briefs). In the Court’s view,

such rules do not restrict a party’s access to due process but

instead help to apportion limited judicial resources and fos-

ter more useful and effective advocacy. As the Court has

Cite as 360 Or 497 (2016) 533

recognized on numerous occasions, the “process of ‘winnow-

ing out weaker arguments on appeal and focusing on’ those

more likely to prevail . . . is the hallmark of effective appel-

late advocacy.’ ” Smith v. Murray, 477 US 527, 536, 106 S Ct

2661, 91 L Ed 2d 434 (1986) (quoting Jones v. Barnes, 463 U S

745, 751-752, 103 S Ct 3308, 77 L Ed 2d 987 (1983)).

This court has reached a similar conclusion as a

matter of state law. In Pratt v. Armenakis, 335 Or 35, 40-41,

56 P3d 920 (2002), the court held that, even in a death pen-

alty appeal, a page limit for appellate briefs does not violate

various constitutional rights, including the requirements of

due process. The court stated that an appellate court has

discretion to decide whether the reason offered by the mov-

ing party justifies extending the page limit for a brief and by

how much, id. at 39, and explained:

“Courts depend on counsel to examine the record, study

the applicable law, and analyze the potentially meritorious

claims that should be advanced on appeal. The exercise of

professional skill and judgment often requires a lawyer to

pick and choose among arguments or theories, and a death

penalty appeal is no exception to that requirement. See

Smith v. Robbins, 528 U S 259, 288, 120 S Ct 746, 145 L Ed

2d 756 (2000) (appellate counsel need not (and should not)

raise every nonfrivolous claim, but rather may select from

among them in order to maximize the likelihood of success

on appeal). Effective appellate advocacy requires counsel to

make those choices. Counsel’s assertions in support of the

motion [for an extended brief] do not demonstrate that he

analyzed those choices before seeking an extended brief of

260 pages.”

Id. at 40.

The accused relies on expert testimony from former

Washington Supreme Court Justice Sanders that he was

prevented from making all of his nonfrivolous arguments in

Sanai II because of page limits. As explained above, however,

the right to be meaningfully heard does not require appel-

late courts to allow litigants to present every nonfrivolous

argument that could potentially be asserted in briefing. We

therefore reject the accused’s due process argument based

on the page limit for his brief in the Washington Supreme

Court.

534 In re Sanai

2.  The right to an impartial tribunal

The accused also contends that he was denied

due process during his appeal in Sanai II because the

Washington Supreme Court was not impartial. As previ-

ously noted, four members of that court dissented in 2009

when that court reversed the disciplinary board’s first rec-

ommendation to disbar the accused. Before the court heard

Sanai II, the accused sought, without success, the recusal of

those four dissenters on grounds of actual bias. His theory

at the time appeared to be that the dissenters had prejudged

his new appeal based on their prior receipt of the record gen-

erated in his first disciplinary hearing. Ultimately, however,

only two of the four dissenters went on to hear the accused’s

second appeal after one of their number recused himself and

Justice Chambers—author of the original dissent—retired

in 2012.

Despite the fact that Justice Chambers did not

participate in deciding the merits of the accused’s appeal

in Sanai II, on review, the accused offers a complex theory

in which Justice Chambers is nevertheless largely respon-

sible for tainting the Washington Supreme Court’s decision

that disbarred him. To support that proposition, the accused

again draws on the declaration and testimony of his expert,

former Justice Sanders.

According to the former Washington jurist, the

accused’s second appeal had to have been assigned to

Justice Chambers for its preliminary work-up and analy-

sis. Although Sanders acknowledges that the identities of

such “assignment judges” are kept secret, he notes that,

when a Washington justice leaves the bench, his or her case-

load generally falls to the new incoming justice. He reasons

that, because Justice Chambers’s replacement authored the

opinion disbarring the accused, it is a “certainty” that the

matter was initially assigned to Chambers for creation of a

predecision memorandum. That fact is important, Sanders

continues, because

“[t]he function of the assignment justice is critical to the

appellate process. The assignment justice presents the

summary of the record and a discussion of the procedural

background and merits of the appeal (or petition for review

Cite as 360 Or 497 (2016) 535

in discretionary review cases) to the entire Court. While

members of the Court can independently review the appel-

late record, this is not commonly done and in a case involv-

ing a 10,000 page record would almost certainly not be

done.”

Again drawing on Sanders’s declaration, the

accused also argues that Justice Chambers’s 2009 dissent

exhibited a predisposition toward dealing unfairly with the

accused. According to the accused, evidence of that bias is

most clearly seen in the portion of Justice Chamber’s dissent

in which he quotes a California Superior Court judge whose

scathing criticism was supposedly directed at the accused.

See In re Disciplinary Proceeding Against Sanai, 167 Wash

2d 740, 756, 225 P3d 203 (2009) (Sanai I) (Chambers, J.

dissenting) (quoting California trial court judge describ-

ing proliferation of “needless, baseless pleadings,” in action

as contributing to an “outrage” of unwarranted grief and

expense). Those comments, however, were directed at his

brother Cyrus Sanai, not the accused. The accused appears

to consider the misstatement as purposeful and bias-driven,

rather than a mistake. Sanders also expressed the opin-

ion that the other justices who joined Chambers’s dissent

exhibited bias by voting to uphold the accused’s disbar-

ment based on evidence presented at a hearing at which the

accused did not appear, which Sanders refers to as “ex parte

information.”

According to the accused, Chambers’s participation

in the initial review of the record at the outset of the appeal

would cause an objective observer to believe that there

was a probability of bias in the appeal. And, the accused

adds, two of the dissenters from Sanai I heard his appeal in

Sanai II but should have recused themselves. The accused

contends that the level of bias on the Washington Supreme

Court meets the standard recently set out in Williams v.

Pennsylvania, ___ US ___, 136 S Ct 1899, 195 L Ed 2d 132

(2016).

We are not, however, persuaded, by the accused’s

reliance on Williams. In that case, the United States

Supreme Court concluded that there was an impermis-

sible risk of actual bias when the Chief Justice of the

536 In re Sanai

Pennsylvania Supreme Court,—a former district attorney

who had approved the trial prosecutor’s request to seek the

death penalty in the petitioner’s criminal trial—refused to

recuse himself in the petitioner’s post-conviction relief case.

In Williams, the Court held that

[w]here a judge has had an earlier significant, personal

involvement as a prosecutor in a critical decision in the

defendant’s case, the risk of actual bias in the judicial pro-

ceeding rises to an unconstitutional level.

Williams, ___ US at ___, 136 S Ct at 1910 (emphasis added).

That holding was based in large part on the Court’s concern

that

“an unconstitutional potential for bias exists when the

same person serves as both accuser and adjudicator in a

case. This objective risk of bias is reflected in the due pro-

cess maxim that ‘no man can be a judge in his own case

and no man is permitted to try cases where he has an inter-

est in the outcome.’ ”

Id. at 1905-06 (internal citation omitted).

In this case, there is no evidence in the record

demonstrating that any member of the Washington Supreme

Court had “significant personal involvement” in prosecuting

the disciplinary charges against the accused. The fact that

two members of a four-person dissenting minority in the

accused’s first appeal heard his second disciplinary appeal

does not—without more—pose an objective risk of bias

under Williams.

As for Justice Sanders’s expert testimony, which the

accused says “stands unrebutted, and unrebuttable” on the

issue of the Washington Supreme Court’s bias in this mat-

ter, it is worth noting that the trial panel in this case found

the former jurist’s conclusions about bias to be unreliable. It

wrote:

“While this Trial Panel appreciates the insight given by

Justice Sanders as to the inner workings of the Washington

Supreme Court, we cannot rely on his conclusions. Justice

Sanders (who testified by telephone from Hawaii) testified

as a retained expert, paid by [the accused] to give his opin-

ion. His opinions as to the claims of due process denial are

Cite as 360 Or 497 (2016) 537

purely speculation, carefully couched in terms of probabil-

ity and inference. [The accused] bears a burden of proof by

evidence, not by the speculation of a paid expert witness.

We find that [the accused] has not sustained his burden of

proof on the claim of denial of an impartial tribunal.”

We agree with that observation and, consequently, do not

accord Justice Sanders’s testimony concerning legal conclu-

sions any deference. We also note that, his experience on the

court notwithstanding, Justice Sanders was absent at the

time of the accused’s second appeal; thus, his ruminations

concerning what may have occurred during the appeal in

Sanai II are unhelpful here.

In sum, we conclude that the accused was not

deprived of due process in the proceedings leading to his dis-

barment in Washington. And, for the reasons stated above,

we agree with the Bar and hold that the accused received

full and fair hearings, both in his Washington disciplinary

proceedings and in the hearing conducted in this jurisdic-

tion. We also hold that the evidence amply establishes that

the accused engaged in misconduct in Washington that was

serious and protracted, warranting reciprocal discipline

here. We turn now to the question of the proper sanction

that should be imposed as a result.

IV. SANCTION

“[T]he purpose of a sanction is not to penalize the

accused, but to protect the public and the integrity of the

profession.” In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998).

The Bar urges that disbarment is required to protect the

public, the courts, and the profession in light of the accused’s

“proven willingness” to resort to abuse and obstruction and

to act in bad faith. The accused, on the other hand, pre-

sented testimony from character witnesses at the hearing

before the Oregon trial panel and, in arguing the appropri-

ate sanction, writes in his brief on review:

“The accused does not believe disbarment is warranted, for

actions taken over a dozen years ago in the course of a fam-

ily dispute where he sought to protect his abused mother

from a vicious, lying husband who is an acknowledged per-

jurer. The Accused is not alone in that opinion; numerous

judges, government officials, police, and attorneys testified

538 In re Sanai

before the Trial Panel to his unblemished professional rep-

utation and record of exemplary public service.”

(Internal citations omitted.)

In reciprocal discipline cases, this court has an

independent obligation to determine an appropriate sanc-

tion based upon this state’s disciplinary rules. In re Lopez,

350 Or at 198. To do that, we begin by applying the analyt-

ical framework set out in the American Bar Association’s

Standards for Imposing Lawyer Sanctions (ABA Standards).

In re Obert, 352 Or 231, 258, 282 P3d 825 (2012). In accor-

dance with the ABA Standards, we first consider the duty

violated, the accused’s state of mind, and the actual or poten-

tial injury caused by the accused’s conduct. In re Kluge, 332

Or 251, 259, 27 P3d 102 (2001); ABA Standard 3.0. We next

determine the existence of any aggravating or mitigating

circumstances. Kluge, 332 Or at 259. Finally, we consider

the appropriate sanction in light of this court’s case law. Id.

In fashioning a sanction, our purpose is to protect the public

and the administration of justice from lawyers who have not

properly discharged their duties to clients, the public, the

legal system, or the profession.

With regard to the ethical duty violated by the

accused in this matter, the record demonstrates that, by vir-

tue of his conduct in Washington, the accused:

• Violated Oregon Rule of Professional Conduct

(RPC) 3.1 by repeatedly bringing legal proceedings

or taking other actions in which he asserted posi-

tions that lacked a nonfrivolous basis in law or fact.

• Violated RPC 3.4(c) by repeatedly disobeying obli-

gations imposed upon him by the rules of the tribu-

nals before which he appeared.

• Violated RPC 4.4(a) by repeatedly representing his

client using means that had no substantial purpose

other than to embarrass, delay, harass, or burden

third persons.

• Violated RPC 8.4(a)(1) by violating, or know-

ingly assisting another in violating, the Rules of

Professional Conduct.

Cite as 360 Or 497 (2016) 539

• Violated RPC 8.4(a)(4) by repeatedly engaging in

conduct prejudicial to the administration of justice.

By engaging in the conduct giving rise to those violations,

the accused abused the legal process and violated the duty

he owed to the legal system to refrain from such actions.

ABA Standards 6.2.

With regard to the mental state accompanying

those violations, the ABA Standards provide that a lawyer

(1) acts with intent “when the lawyer acts with the conscious

objective or purpose to accomplish a particular result” and

(2) acts with knowledge when the lawyer acts with “the con-

scious awareness of the nature or attendant circumstances

of the conduct but without the conscious objective or pur-

pose to accomplish a particular result.” ABA Standards at

7. Here, the accused acted intentionally when he repeatedly

disobeyed court orders and delayed the sale of the real prop-

erty that was ordered as part of his parents’ marriage disso-

lution. He also acted knowingly in repeatedly filing multiple

frivolous claims in both state and federal court without a

reasonable basis in law or fact for doing so.

Turning to the question of the potential or actual

injury caused by the accused, we begin by noting that, under

the ABA Standards, the term “injury” is broadly defined to

encompass “harm to a client, the public, the legal system

or the profession which results from a lawyer’s misconduct.”

ABA Standards at 7. Here, the accused’s misconduct resulted

in serious actual injury to his mother who, as his client,

was forced to pay tens of thousands of dollars in sanctions

and attorney fee awards as a consequence of the accused’s

representation. The accused’s father, forced to incur simi-

larly exorbitant sums in the course of defending against

the unnecessary litigation instigated by the accused, also

suffered serious actual injury. Third parties—including

father’s attorney and employee and the chief justice of

the Washington Supreme Court—became subjects of the

accused’s baseless litigation. The accused’s misconduct also

inflicted serious actual harm upon the legal system, because

it forced courts to waste valuable time and resources deal-

ing with the multitude of frivolous matters generated by the

accused. And, finally, it harmed the legal profession itself,

540 In re Sanai

by undermining the public’s confidence in the integrity of

the law.

Under ABA Standard 7.1, disbarment is the pre-

sumptive sanction “when a lawyer knowingly engages in

conduct that is a violation of a duty owed as a professional

with the intent to obtain a benefit for the lawyer or another,

and causes serious or potentially serious injury to a client,

the public or the legal system.” Under ABA Standard 6.21,

disbarment is also the presumptive sanction “when a lawyer

knowingly violates a court order or rule with the intent to

obtain a benefit for the lawyer or another, and causes seri-

ous injury or potentially serious injury to a party or causes

serious or potentially serious interference with a legal

proceeding.”

We next consider whether mitigating or aggravat-

ing factors might affect that determination. We find several

aggravating factors at play here. First, the accused engaged

in a large-scale pattern of misconduct that included multiple

offenses. ABA Standard 9.22(c) and ABA Standard 9.22(d).

Second, he has refused to acknowledge the wrongful nature

of his conduct in any meaningful way. ABA Standard 9.22(g).

At the end of the day, the accused appears to view his per-

sonal culpability in this disciplinary matter as either neg-

ligible or else justified by his family’s circumstances. And

finally, by pursuing a personal agenda at the expense of his

parents, Washington’s state and federal court systems, and

the rule of law, the accused acted with a dishonest or selfish

motive. ABA Standard 9.22(b).

As to mitigating factors, three are applicable here:

(1) the absence of a prior disciplinary record, ABA Standard

9.32(a); (2) the imposition of other sanctions related to this

matter, i.e., the accused’s disbarment in Washington, ABA

Standard 9.32(k); and (3) the accused’s favorable reputation

among lawyers and civic leaders in his community. As to

the last factor, however, it should be noted that the accused’s

character witnesses testified that they knew little or nothing

about the Washington litigation until after it had concluded.

Had the scope of the accused’s misconduct been

less extensive and protracted, those factors would have

Cite as 360 Or 497 (2016) 541

undoubtedly played a role in mitigating the sanction to be

imposed in this case. But the accused’s misconduct was not

limited in scope. Both pervasive and ongoing, his miscon-

duct stretched out over multiple years and involved mul-

tiple incidents, all despite repeated admonitions from the

bench to cease such actions. The end result, as we have

already noted, was actual harm—serious harm—to almost

all involved, including the courts and the legal profession.

Having considered the aggravating and mitigating factors

together, we are not persuaded that the mitigating elements

set out above are weighty enough to warrant a sanction less

than disbarment. We turn now to examine how that prelim-

inary determination squares with our own precedents.

As we have noted in the past, case-matching in the

context of disciplinary proceedings “is an inexact science.”

In re Stauffer, 327 Or 44, 70, 956 P2d 967 (1998). That is

particularly true where, as here, this court’s precedents cur-

rently lack a perfect analog to the matter before us. That

said, our decision in In re Conduct of White, 311 Or 573, 815

P2d 1257 (1991), provides a degree of guidance in fashioning

an appropriate sanction in this case.

In White, the accused lawyer had intentionally and

repeatedly violated his duty to the legal system by filing

multiple vexatious actions at his client’s behest against two

defendants who had co-owned a chiropractic practice with

the client. Using the legal system to harass the defendants

rather than resolve any legitimate dispute, the accused law-

yer confided to opposing counsel at one point that the accused

lawyer’s client intended to “sue [the defendants] in as many

different courts for as many different claims as they could

think up,” the goal being to cause the defendants “as much

grief and expense * * * as was humanly possible.” Id. at 578.

True to his word, over a five-year period, the accused lawyer

filed 15 different actions against the defendants in three dif-

ferent counties. Id. at 583.

This court concluded that the accused lawyer in

White had violated a number of disciplinary rules in force

at the time by conduct that included, in part, (1) filing repe-

titious claims in different counties where such claims were

not warranted; (2) filing such claims for the purpose of

542 In re Sanai

harassment; (3) accepting employment from a client know-

ing that the client intended to use litigation as a means to

harass opposing parties; (4) accepting employment from a

client knowing that the client intended to pursue unwar-

ranted claims against opposing parties; and (5) making a

false statement to a trial court to obtain a postponement.

The court also concluded that there were four aggravating

factors at work in White: (1) multiple offenses, (2) previous

discipline (for accepting an excessive fee), (3) false testimony

during the disciplinary process, and (4) failure to acknowl-

edge wrongful nature of his conduct. Ultimately, the court

concluded that the accused was

“guilty of numerous violations of the Disciplinary Rules.

He engaged in a pattern of inappropriate conduct over a

period of five years. That pattern of conduct, coupled with

the accused’s lack of candor, suggests that disbarment, or

a substantial period of suspension, is needed in order to

impress on the accused the necessity of complying with the

Disciplinary Rules. The appropriate sanction is a three-

year suspension.”

Id. at 593.

This case has some similarities to White, absent

several of the aggravating factors—prior disciplinary his-

tory and false testimony—that were present in that case.

Like the lawyer disciplined in White, the accused engaged in

a large-scale pattern of vexatious, bad-faith litigation over

a protracted period of time that caused actual and serious

harm, and he acknowledges no wrongdoing whatsoever.

But this case is also unlike White. After the accused

had filed multiple frivolous, duplicative, bad-faith actions,

claims, and motions in multiple jurisdictions, he repeatedly

and deliberately violated court orders. And he used the legal

process to target, embarrass, and harass not only his father

but third parties as well, including individuals associated

with his father and members of tribunals who did not rule in

the accused’s favor. There is no evidence that his acts were

driven by anyone other than himself. The sheer magnitude

of the accused’s repeated misconduct in the Washington and

federal cases, coupled with the accused’s abject disdain for

the rule of law, as exhibited by his actions, are sufficient to

Cite as 360 Or 497 (2016) 543

warrant a sanction here greater than that imposed in White.

After considering the ABA Standards and our case law, we

conclude that, to protect the public and the administration

of justice in this jurisdiction, the accused should be dis-

barred in Oregon as a reciprocal sanction for his misconduct

in Washington.

The accused is disbarred, effective 60 days from the

date of this decision.