In re Kirchoff ( 2017 )


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  • 712	                          August 3, 2017	                           No. 40
    IN THE SUPREME COURT OF THE
    STATE OF OREGON
    In re Complaint as to the Conduct of
    JAMES R. KIRCHOFF
    OSB No. 081879,
    Accused.
    (OSB No. 1505, SC S064308)
    En Banc
    On review of the decision of a trial panel of the Disciplinary
    Board, dated June 14, 2016.
    Argued and submitted May 11, 2017.
    C. Robert Steringer, Harrang Long Gary Rudnick PC,
    Portland, argued the cause and filed the briefs for the
    Accused.
    Susan R. Cournoyer, Assistant Disciplinary Counsel,
    Tigard, argued the cause and filed the brief for the Oregon
    State Bar.
    Before Balmer, Chief Justice, and Kistler, Walters,
    Nakamoto, Flynn and Duncan, Justices, and Linder, Senior
    Justice pro tempore.*
    PER CURIAM
    The accused is suspended from the practice of law for a
    period of two years, commencing 60 days from the filing of
    this decision.
    ______________
    * Landau, J., did not participate in the consideration or decision of this case.
    Brewer, J., retired June 30, 2017, and did not participate in the decision of this
    case.
    Cite as 
    361 Or 712
     (2017)	713
    Case Summary: The Oregon State Bar brought a disciplinary action against
    the accused lawyer, alleging four violations of the Rules of Professional Conduct,
    arising out his submission of a falsified document to a trial court and to the Bar.
    A trial panel of the Disciplinary Board found that the accused had committed all
    of the charged violations and concluded that the accused should be suspended
    from the practice of law for two years. The accused lawyer sought review in the
    Supreme Court, arguing that the Bar had failed to prove the charged violations
    by clear and convincing evidence. He did not challenge the sanction. Held: On
    de novo review, the court concluded that there was clear and convincing evidence
    that the accused committed the charged violations of the disciplinary rules.
    Because neither party challenged the appropriateness of the sanction, the court
    also concluded that a two-year suspension was appropriate.
    The accused is suspended from the practice of law for two years, commencing
    60 days from the date of this decision.
    714	                                            In re Kirchoff
    PER CURIAM
    In this lawyer disciplinary proceeding, the Oregon
    State Bar charged James R. Kirchoff (the accused) with
    multiple violations of the Oregon Rules of Professional
    Conduct (RPC), based on his submission of false evidence
    to a tribunal. A trial panel of the Disciplinary Board con-
    ducted a hearing, found that the accused had violated those
    rules, and determined that the appropriate sanction was
    suspension from the practice of law for a period of two years.
    The accused seeks review of the trial panel’s finding that he
    committed the alleged violations. We review the trial panel’s
    decision de novo. ORS 9.536(2); Bar Rule of Procedure (BR)
    10.6. The Bar has the burden of establishing misconduct by
    clear and convincing evidence. BR 5.2. Clear and convincing
    evidence is evidence establishing that “the truth of the facts
    asserted is highly probable.” In re Ellis / Rosenbaum, 
    356 Or 691
    , 693, 344 P3d 425 (2015). For the reasons that follow, we
    agree with the trial panel that the Bar presented evidence
    establishing the alleged violations under that standard. The
    accused does not challenge the sanction imposed by the trial
    panel; accordingly, we suspend the accused from the prac-
    tice of law for a period of two years.
    FACTS
    Before March 1, 2014, the accused was a lawyer with
    the Grants Pass law firm then known as Sorenson, Ransom,
    Ferguson & Kirchoff, LLP. The charges arise out of the
    accused’s representation of husband in a marital dissolution
    action initiated by his wife. Wife’s lawyer, Claar, had filed a
    petition for dissolution on January 10, 2014. On January 13,
    husband retained the accused to represent him in the disso-
    lution proceeding, and husband signed a retainer agreement
    on February 7. The accused did not file an appearance in the
    proceeding, nor did he provide written notice to Claar about
    his intent to file an appearance.
    On February 11, Claar filed an Ex Parte Motion for
    Order of Default and Entry of Judgment by Default on wife’s
    behalf on the ground that husband had made no appear-
    ance in the case before the February 10 deadline. The court
    Cite as 
    361 Or 712
     (2017)	715
    granted the motion on February 13 and signed a general
    judgment of Dissolution of Marriage on February 27.
    The accused made his first appearance in the mat-
    ter as attorney of record when he filed a Motion to Vacate
    Default Judgment on husband’s behalf on March 7. The
    accused based his motion on ORCP 69 B(2), which requires
    a party to file and serve notice of the intent to apply for an
    order of default at least 10 days before applying for the order,
    if the opposing party or the party’s counsel has previously
    provided written notice of intent to appear. The accused
    attached to that motion a declaration in which he stated, “I
    provided to counsel for Petitioner written notice of intent to
    appear in [this] action on January 29, 2014.” The accused,
    however, did not attach as an exhibit to the declaration any
    written notice of intent to appear.
    On March 12, Claar filed an objection to the motion.
    In his supporting affidavit, Claar stated that he first became
    aware that the accused was representing husband on
    March 7, the day that the accused filed the motion to vacate
    the default judgment, and that, although the accused had
    informed him that his claimed written notice was by email,
    neither Claar nor his staff had been able to locate any such
    email in their in-boxes, deleted messages, or spam folders.
    Claar further informed the court that both he and his legal
    assistant had made several requests to the accused to send
    them a copy of the January 29 email but that the accused
    had failed to do so.
    On March 13, the accused filed a reply to Claar’s
    objection, supported by a declaration similar to the one that
    he had filed on March 7. That March 13 declaration, how-
    ever, attached a four-page document purporting to include
    an email that the accused had sent to Claar on Thursday,
    January 29, 2014, as evidence of his written notice to Claar.
    In that email, the accused mentioned wife’s ex parte motion
    to exclude husband from the family home and the possibil-
    ity that husband would one day file a similar motion. The
    court held a hearing in chambers on the accused’s motion to
    vacate. The judge denied the motion to vacate on the ground
    that the purported January 29 email did not provide suffi-
    cient notice of intent to appear.
    716	                                         In re Kirchoff
    The accused then filed a Motion for Relief from
    Judgment under ORCP 71 B(1), requesting relief from the
    default judgment in the dissolution case on the grounds of
    mistake, inadvertence, surprise, or excusable neglect. That
    motion recited that it was based on the accused’s March 13
    declaration, which, as noted, recited that the accused had
    notified Claar of his intent to appear in the purported,
    attached, January 29 email.
    The court held another hearing on the ORCP 71
    motion. At that hearing, Claar argued in opposition that
    he had the following reasons to believe that the purported
    January 29 email had been fabricated: (1) Despite numerous
    requests, the accused never produced the purported email
    to Claar electronically; (2) the email stream that concludes
    with the purported email was about another case involv-
    ing Claar, and Claar found on his own computer all emails
    in the thread except that last, disputed email; and (3) the
    earlier emails in the thread included the signature block
    of Sorenson, Ransom, Ferguson & Kirchoff, LLP (where,
    as noted, the accused worked until March 1), whereas the
    signature block on the purported January 29 email was for
    James Holmbeck Kirchoff LLC, the law firm that the accused
    joined on March 1, which did not yet exist on January 29,
    2014.
    The accused responded by asserting that Claar
    had had actual knowledge that the accused was represent-
    ing husband and, in fact, had had several phone conversa-
    tions with him in January about the case. When the judge
    pressed the accused on the use of a signature block for a
    firm at which he was not then working, the accused asserted
    various problems arising out of the transition from one firm
    to the other and one email system to another. Claar, for his
    part, flatly denied that he had talked to the accused about
    the case before March 7.
    The court granted the accused’s motion to vacate.
    The court declined to make a finding that the email was
    fraudulent and asked the accused to find the email in elec-
    tronic form and forward it to Claar. The accused never
    did so. The parties subsequently settled the dissolution
    matter.
    Cite as 
    361 Or 712
     (2017)	717
    Claar later reported the accused to the Bar. After
    receiving the accused’s response, the Bar referred the mat-
    ter to Disciplinary Counsel. In response to Disciplinary
    Counsel’s request for information, the accused stated that
    the purported January 29 email was merely a draft that
    he had created to experiment with his signature block in
    anticipation of changing law firms, and that he must have
    printed it to show his secretary, who eventually mistook it for
    a real email and filed it in husband’s file. He also informed
    Disciplinary Counsel that he had inadvertently deleted the
    draft without sending it to Claar.
    A Bar technology expert, Johnson, examined the
    purported email and concluded that it had not been sent. As
    Johnson later testified before the trial panel, the fact that
    the email had not been sent was evident from its format-
    ting.1 Additionally, Johnson noticed that January 29 was
    not a Thursday as stated in the “sent” field of the purported
    email, but instead it was a Wednesday. Based on that incon-
    sistency, Johnson testified that he believed that the email
    had been “manipulated” because, essentially, the accused’s
    computer could not have made that error. As he stated, “I
    was at a loss to determine any method by which I could
    mis-configure the computer to produce a result like that,
    leaving me with the likelihood that the text had actually
    been typed by a person rather than generated by the appli-
    cation itself.” He did not believe that those two “anomalies”
    (the formatting and the day/date errors) could have been the
    result of the explanation that the accused had provided to
    the Bar initially—that they were the result of having multi-
    ple email applications open on his desktop at once.
    Additionally, as Johnson later testified, he also
    did not believe that the purported January 29 email was
    an unsent draft that had been saved and/or printed, as the
    accused claimed in his response to the Bar’s inquiry. That
    was so because there was a “sent” field, and a date appeared
    in the “sent” field. According to Johnson, if, as the accused
    1
    Specifically, in various respects, the From/Sent/To/Subject header on the
    January 29 email was not formatted in the way it would be on a sent email in
    Outlook, the email program that the accused was using. Rather, that part of the
    email was formatted like an email that would appear earlier in an email thread
    (like one being replied to or forwarded).
    718	                                            In re Kirchoff
    had represented to the Bar and later testified before the trial
    panel, the document was actually a draft that had never
    been sent, the printed document would not have displayed
    a four-line From/Sent/To/Subject header. Instead, it would
    have displayed a header with only two lines: To and Subject.
    Moreover, that two-line header would have been formatted
    like a sent email and not like an email that appears earlier
    in an email thread. And most importantly, there would not
    have been a “sent” field with a date at all, because, as the
    accused admitted, the purported January 29 email had not
    been sent.
    Based on its investigation, including Johnson’s
    analysis, the Bar charged the accused with violating RPC
    3.3(a)(1) (making a false statement of fact or law to a tri-
    bunal or failing to correct a false statement of material
    fact or law previously made to the tribunal by the lawyer);
    RPC 3.4(b) (falsifying evidence); RPC 8.4(a)(3) (engaging
    in conduct involving dishonesty, fraud, deceit, or misrepre-
    sentation that reflects adversely on the lawyer’s fitness to
    practice law); and RPC 8.1(a)(1) (knowingly making a false
    statement of material fact in connection with a disciplinary
    matter).
    At a subsequent hearing before the trial panel,
    the Bar called Johnson to testify about the anomalies in
    the purported January 29 email, and it called Claar, who
    testified, among other things, that he had had no conver-
    sation with the accused about the dissolution matter and
    that he did not know that the accused had been retained
    by husband until after he had filed for a default judgment
    in that action. Claar testified that he had not been notified
    in any way—by in-person conversation, email, fax, or phone
    call—that the accused was representing husband until the
    accused emailed him early in the morning on March 7 (the
    day that the accused filed the motion to vacate the default
    judgment) and asked him to agree to the vacation.
    The accused testified on his own behalf at the hear-
    ing before the trial panel. As for the purported January 29
    email, to explain how it, and, specifically, the erroneous sig-
    nature block, came to exist, the accused testified that the
    Cite as 
    361 Or 712
     (2017)	719
    “only thing I could imagine is that I typed [the signature
    block] in, there were different iterations of it that came
    about over time. And I typed this into a draft, an opened
    draft in Outlook. And not draft in the sense that it’s in the
    draft folder, just a—just a document that’s opened.
    “So if I—you click ‘open an e-mail,’ or you click on ‘new
    e-mail,’ I would call that a draft; not the actual draft folder.
    But it opened up, and I type in. And this is how I would
    design the signature block. I would actually put it into that,
    over the top of the old one. That’s the only, the only thing I
    could think of. There’s no other reason why it would be in
    there.”
    Among other witnesses, the accused also called his own
    technology expert, Englen, to testify on his behalf. Englen
    testified, as Johnson (the Bar’s technology expert) had, that
    the purported January 29 email had not been sent—for all
    of the same formatting-related reasons that Johnson had
    identified. Additionally, Englen testified that the formatting
    of the purported January 29 email was likely created by
    altering a previously sent email. That is, he testified that
    the purported January 29 email was “a draft that used a
    previous email as a format.”
    Regarding what he called the “glitches” in the pur-
    ported email, Englen testified that Outlook is error-prone
    and has had problems with date/day of the week discrep-
    ancies in sent emails, which he had observed in sent emails
    several times in his career over the past 15 years. Englen
    was not asked whether a “draft” email would have a “sent”
    field, why a “draft” email would show a date in the “sent”
    field, or how day/date discrepancies in sent emails could
    occur in a “draft” email that never was sent or even saved
    to a draft folder. Notably, Englen testified that a document
    like the purported January 29 email would be easy to fab-
    ricate and that he had no personal knowledge whether the
    purported January 29 email was actually a draft or a fabri-
    cated document. When a trial panel member asked Englen
    whether, in his opinion, the purported January 29 email
    could have been fabricated intentionally, Englen responded,
    “Completely, yeah, absolutely. * * * No doubt, this could be
    completely totally made up.”
    720	                                             In re Kirchoff
    The trial panel found that the accused, to convince
    the court to set aside the default judgment, knowingly fal-
    sified the purported January 29 email and knowingly made
    misrepresentations to the court regarding the purported
    email. As an initial matter, the trial panel found, based on
    the testimony of both the Bar’s and the accused’s experts,
    that the purported January 29 email had not been sent. For
    that reason, the trial panel found that the accused falsely
    represented to the trial court that he had given written
    notice of his intent to appear in the dissolution matter.
    Next, for three reasons, the trial panel found that
    the accused knowingly falsified the purported January 29
    email and that the accused’s testimony that the email was a
    draft that was printed and inadvertently filed was not cred-
    ible. First, as the Bar’s expert testified, a draft email would
    not have been formatted as it appeared in the purported
    January 29 email, it would not have had a date in a “sent”
    line, and, in fact, it would not have had a “sent” line at all.
    Second, the trial panel found that the fact that the purported
    January 29 email listed the date as “Thursday, January 29,
    2014,” when that date actually was a Wednesday supported
    the conclusion that the purported January 29 email was
    fabricated. The trial panel noted that the accused’s expert,
    Englen, testified that anomalies like that can occur at the
    server level in a sent email, but he also testified that the pur-
    ported January 29 email had not been sent. That testimony
    led the trial panel to conclude that date in the “sent” field
    had been manipulated by the accused, and, in his haste, he
    erroneously entered the incorrect day of the week. Third,
    the trial panel noted that the purported January 29 email
    used the incorrect signature block. The trial panel deemed
    it unlikely that all of the “anomalies” in the purported email
    would have occurred without human intervention.
    In addition to that factual evidence, the trial panel
    found two other items of circumstantial evidence pointing
    to the conclusion that the accused falsified the purported
    January 29 email. First, the accused did not attach the pur-
    ported January 29 email to his motion to set aside the judg-
    ment. And second, although the accused testified that, in
    phone calls that the accused claimed took place in January
    Cite as 
    361 Or 712
     (2017)	721
    2014, he and Claar essentially settled the case and that he
    had had no further conversation with Claar about the case
    until March 7, the accused conceded that the purported
    January 29 email was not about settlement. For those rea-
    sons, the trial panel found that the accused’s testimony
    regarding his communication with Claar was not credible.
    Ultimately, the trial panel concluded that there was
    clear and convincing evidence that the accused falsified the
    purported January 29, 2014, email and that the accused
    printed that document and submitted it to the court, to
    counsel, to the Bar, and to the trial panel, when he knew or
    should have known that that document did not exist, digi-
    tally, on paper, or in any form on the date that he testified
    that he sent it.
    On review, the accused argues that an examination
    of the entire record reveals that the Bar did not prove by
    clear and convincing evidence that he committed the alleged
    violations. That is, he argues, under the “clear and convinc-
    ing evidence” standard, the Bar was required to, but did not,
    prove that it is “highly probably” that he fabricated the pur-
    ported January 29 email. Rather, he argues, it is far more
    probable that that document was just what the accused now
    says it was: the hard copy of a draft email that the accused
    wrote but never sent, which was mistakenly placed in hus-
    band’s client file.
    Having reviewed de novo all the evidence in this
    case, which we have summarized above, we agree with the
    trial panel and conclude that there is clear and convincing
    evidence that the accused violated RPC 3.3(a)(1) (making
    a false statement of fact or law to a tribunal or failing to
    correct a false statement of material fact or law previously
    made to the tribunal by the lawyer); RPC 3.4(b) (falsifying
    evidence); RPC 8.4(a)(3) (engaging in conduct involving
    dishonesty, fraud, deceit, or misrepresentation that reflects
    adversely on the lawyer’s fitness to practice law); and RPC
    8.1(a)(1) (knowingly making a false statement of material
    fact in connection with a disciplinary matter). Further rec-
    itation of the factual bases for our independent conclusion
    would not benefit the bench, the Bar, or the public. Because,
    as noted, neither party has challenged the appropriateness
    722	                                         In re Kirchoff
    of the sanction, we also conclude that a two-year suspension
    is appropriate.
    The accused is suspended from the practice of law
    for a period of two years, commencing 60 days from the fil-
    ing of this decision.
    

Document Info

Docket Number: S064308

Filed Date: 8/3/2017

Precedential Status: Precedential

Modified Date: 9/14/2017