In Re Complaint as to the Conduct of Sanai , 360 Or. 497 ( 2016 )

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.