In re Skagen ( 2020 )

236
Argued and submitted September 16, respondent disbarred November 19, 2020
In re Complaint as to the Conduct of
CHRISTOPHER K. SKAGEN,
OSB No. 911020,
Respondent.
(OSB 18149) (SC S066706)
476 P3d 942
Respondent was struck from New Zealand’s Roll of Barristers and Solicitors
by the High Court of New Zealand Wellington Registry in August 2016 based on
misconduct respecting two clients and his significant disciplinary history. The
Oregon State Bar brought a reciprocal disciplinary action against the respondent,
alleging that his misconduct in New Zealand constituted multiple violations of
the Rules of Professional Conduct. A trial panel of the Disciplinary Board found
that the respondent had committed the charged violations, and it concluded that
respondent should be disbarred. Held: On de novo review, the court concluded
that respondent was afforded due process in the New Zealand proceeding, that
the misconduct for which respondent was disciplined in New Zealand is conduct
that should subject a lawyer to discipline in Oregon, and that imposing the same
sanction—disbarment—would not result in a grave injustice or be offensive to
public policy.
Respondent is disbarred.
En Banc
On review of the decision of a trial panel of the Disciplinary
Board.
Christopher K. Skagen, Wellington, New Zealand, argued
the cause and filed the brief on behalf of respondent.
Susan R. Cournoyer, Assistant Disciplinary Counsel,
Tigard, argued the cause and filed the briefs on behalf of
the Oregon State Bar.
PER CURIAM
Respondent is disbarred.
Cite as 367 Or 236 (2020) 237
PER CURIAM
This is a reciprocal discipline review proceed-
ing conducted under Oregon State Bar Rule of Procedure
(BR) 3.5. Respondent, Christopher K. Skagen, was licensed
to practice law in New Zealand and in Oregon during the
years relevant to this proceeding. He was struck from New
Zealand’s Roll of Barristers and Solicitors by the High
Court of New Zealand Wellington Registry (High Court)
in August 2016 based on misconduct respecting two clients
and his significant disciplinary history. That action was the
equivalent of disbarment in Oregon. The Oregon State Bar
(the Bar) then petitioned the Bar’s Disciplinary Board for
reciprocal disbarment, alleging that respondent’s miscon-
duct in New Zealand constituted multiple violations of the
Oregon Rules of Professional Conduct (RPC). A trial panel
of the Disciplinary Board was convened, and the matter
went to a hearing in January 2019. The trial panel issued
an opinion, concluding that respondent should be recipro-
cally disbarred in Oregon as a result of his misconduct in
New Zealand. Respondent 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
respondent should now be disbarred in Oregon.
I. FACTS
A. Oregon Bar Admission and Prior Oregon Discipline
On de novo review, the court finds the following
facts. Respondent went to law school in New Zealand but
moved to Oregon shortly after graduating. He was admitted
to practice law in Oregon in 1991. In the years following,
respondent was subject to disciplinary proceedings twice in
Oregon. In 2006, he was suspended from the practice of law
for one year for failing to maintain unearned fees in trust,
failing to account for client funds in his possession, failing
to maintain an interest-bearing trust account, engaging
in conduct prejudicial to the administration of justice, and
failing to cooperate with the Bar’s investigation into his
conduct.1 In re Skagen, 342 Or 183, 149 P3d 1171 (2006).
1
The misconduct leading to the 2006 discipline took place from 2000 to
2002.
238 In re Skagen
In 2008, a trial panel in Oregon found that respondent had
committed 22 client trust fund violations in 20 different cli-
ent matters over a one-year period; the violations were based
on his failures to deposit and maintain in trust unearned
fees paid in advance. The trial panel suspended respondent
from the practice of law for 18 months for that misconduct.2
In re Skagen, 22 DB Rptr 292 (2008).
B. Reciprocal Discipline in New Zealand
Respondent moved to New Zealand during the
pendency of the second Oregon disciplinary proceeding. In
2008, respondent was subject to reciprocal censure in New
Zealand based on the 2006 Oregon discipline matter, and
the New Zealand Law Society (equivalent to the Bar in the
United States) ordered him to pay approximately NZ$8,000
in costs. In 2010, respondent applied to renew his member-
ship in the Law Society. Because he had not paid the cost
award, he was required to enter into an agreement to make
payments on that obligation in the amount of NZ$150 per
month as a condition of his license renewal. He then began
practicing law in New Zealand. He made only one of the
required monthly payments, but he continued to practice
law.
C. Licensing and Client Representation in New Zealand
Respondent practiced as a barrister in New Zealand
from 2010 to 2011. In February 2011, respondent was
retained by client E to represent him in a divorce proceeding.
Respondent met with E and advised E that he would charge
a lump sum for the work and that E would need to see a
solicitor—known as an instructing solicitor—before signing
the retainer contract.3 Following that meeting, respondent
sent E an invoice and his terms of engagement. The invoice
set out the scope of the work to be performed and required
an initial payment in the amount of NZ$4,100, which was to
be half the total fee ultimately due. E paid that amount, and
2
The misconduct leading to the 2008 discipline took place in 2005, before
this court’s decision in the earlier matter, which factored into the trial panel’s
sanction determination.
3
In New Zealand, a barrister may not represent a client without an
instruction—or referral—from a solicitor.
Cite as 367 Or 236 (2020) 239
respondent deposited it in his private account. The terms
of engagement specified that the instructing solicitor would
be Kevin Smith. When respondent and E met with Smith,
however, they learned that Smith had already discussed
the matter with E’s wife and, therefore, could not act as E’s
instructing solicitor. Respondent and E dispute what hap-
pened next. E averred that respondent did not answer his
emails after that meeting, while respondent claimed that he
explained to E that he would have to find a new instructing
solicitor before respondent could perform any legal services
for him and then did not hear from E again. In any case, E
hired another firm to represent him in the matter and, in
March 2011, E’s new lawyer sent respondent a letter advis-
ing respondent that E wished to terminate the representa-
tion. That letter also demanded that respondent release E’s
file, provide an itemized bill for costs and work performed,
and refund the unearned part of the fee that E had paid
him. Respondent initially promised to repay the fee in full
but ultimately informed E that he could not do so because
of his precarious financial position. He did not refund the
unearned fee.
In April 2011, the New Zealand Law Society Lawyers
Complaint Service sent respondent a letter reminding him
that he had not fulfilled his obligation to make monthly pay-
ments on the 2008 costs award as a condition of his license
renewal. The letter noted that licenses must be renewed by
July 1, and it warned respondent that, under New Zealand’s
disciplinary rules, the Law Society may take into account
a lawyer’s failure to pay when determining whether a law-
yer is a “fit and proper person” to hold a license. The let-
ter demanded payment of the entire amount due by May 5,
2011. Respondent did not respond.
In a second letter, dated June 23, 2011, the New
Zealand Law Society Fitness for Practice Committee
informed respondent that it provisionally had concluded
that his failure to respond or to pay constituted “reasonable
grounds for declining to renew” his license; it invited him to
submit a response.
On June 29, 2011, respondent submitted a response
claiming not to have received the first letter and asserting
240 In re Skagen
that he had failed to pay the amount he owed because he
had decided “to place business growth above [his] responsi-
bility to pay [the amount owed] and did not consult the Law
Society about that decision.” He further explained that he
did not believe that nonpayment rendered him unfit as a
practitioner and that a finding of unfitness would devastate
his prospects for continuing his life as a lawyer. He offered
to begin paying NZ$300 per month beginning in July
2011.
The Fitness Committee responded that it would
need to be provided with further financial information, such
as bank statements, to satisfy itself that respondent would
be able to pay NZ$300 monthly. Respondent refused to pro-
vide that information.
Meanwhile, in May 2011, respondent was hired by
client W to represent him in an ongoing divorce proceed-
ing. Respondent sent W the terms of engagement and an
invoice for NZ$6,900, and W paid him that day. Solicitor
Smith instructed respondent (that is, provided the referral).
Respondent participated in a telephone conference with the
court on W’s case on June 9, 2011. The court ordered W to
provide and serve an affidavit in the case. Respondent sent
W an email on June 21 advising the client that he would
need more information for an affidavit and that W would
need to provide “disclosure to the other side.” However, he
did not inform W of the date for providing disclosure, nor
did he set a time for them to discuss the matter. W pro-
vided some information to respondent by email, but he later
averred that he did not know what was required of him or
when the next hearing would be.
Respondent’s license lapsed as of July 1, 2011. The
New Zealand Law Society gave respondent until July 19 to
pay the amount owed on the cost award and to apply for
renewal of the license, which required payment of a fee of
NZ$1,426. Respondent submitted a renewal application, but
he did not pay any of the fees or costs.4
4
In August 2011, the New Zealand Law Society informed respondent that it
had declined to renew his license, stating that it found his nonpayment of costs
“disgraceful and dishonourable,” which is grounds for discipline in New Zealand.
Cite as 367 Or 236 (2020) 241
Respondent did not inform W that his license had
lapsed. He did, however, inform Solicitor Smith of that fact
in mid-July. Respondent also told Smith that he had pre-
pared the affidavit required by the court and due before a
July 21 hearing. Smith refused to permit respondent to file
the affidavit. Instead, Smith asked respondent to immedi-
ately return all outstanding client files to him, which respon-
dent did. Smith reported to the court and opposing counsel
on July 20 that respondent’s license had lapsed and that W
would need time to obtain alternative counsel. The court
conducted a telephone conference on July 21, at the conclu-
sion of which the court ordered W to pay costs of NZ$800
for the failure to timely file the affidavit. The court advised
W to seek to recover that cost award from respondent.
Thereafter, W spoke to respondent by telephone; respon-
dent told W that he could not pay the NZ$800 or refund
even part of the NZ$6,900 advance fee, because he was
“broke.”
D. New Zealand Disciplinary Proceedings
1. Investigation and charges by the New Zealand stan-
dards committee
Clients E and W complained to the New Zealand
Law Society about respondent’s conduct, and the Wellington
Branch Standards Committee (Standards Committee)
was charged with investigating the complaints and decid-
ing whether to bring formal charges. Respondent was
informed of and participated in the investigation. The
Standards Committee investigator requested documents
relevant to the complaints, including, among other things,
various financial records. Respondent provided some of the
requested documents, but he declined to provide his finan-
cial records. The Standards Committee invited respondent
to submit any materials he wanted the committee to con-
sider in deciding whether the case should be forwarded to
the New Zealand Lawyers and Conveyancers Disciplinary
Tribunal (Disciplinary Tribunal or tribunal).
In June 2013, the Standards Committee charged
respondent with 12 rule violations related to the two client
complaints and to his failure to cooperate with the Standards
242 In re Skagen
Committee investigation.5 The charges were accompanied
by five affidavits, including affidavits from clients E and W
and the investigator, as well as a “Bundle of Documents”—
documents relevant to the investigation—which included,
among other things, correspondence between respondent
and E and W and their new lawyers, respondent’s written
responses to the complaints and to the investigator, notices
of hearings before the Standards Committee, and notices of
determinations of the Standards Committee.
Respondent had returned to the United States in
February 2013 without updating his contact information.
As a result, the authorities could not find or serve him with
the charges and supporting documents. In October 2013,
respondent was served by substitute electronic service (by
email). Respondent acknowledged receiving that substitute
service and filed a response in November 2014. The matter
then came before the Disciplinary Tribunal.
2. Proceedings before the New Zealand Disciplinary
Tribunal
In January 2014, the Disciplinary Tribunal con-
ducted a telephone conference to discuss procedures for the
hearing. Respondent stated that he would not be returning to
New Zealand and, therefore, would not be able to participate in
person at the hearing. The chair of the Disciplinary Tribunal
informed respondent that he would be required to appear
personally if he wished to participate in the hearing and
that the hearing would go forward without him if he were not
present. The Disciplinary Tribunal’s counsel then proposed
that the parties proceed on the written record because there
did not appear to be any material facts in dispute or credibil-
ity determinations to be made. As the tribunal’s counsel later
testified in the Oregon disciplinary proceeding, respondent
seemed receptive to that idea, and the chair set the matter
for hearing on that basis. Respondent did not file a motion
or application for permission to appear remotely, nor did he
request to reschedule the hearing until a time when he could
be present. Respondent and the Standards Committee each
provided written submissions, and the Disciplinary Tribunal
5
One of the charges was later dismissed.
Cite as 367 Or 236 (2020) 243
conducted a brief hearing in November 2014. The Disciplinary
Tribunal considered the charges against respondent and both
parties’ submissions under a “balance of probabilities” stan-
dard of proof. New Zealand Lawyers and Conveyancers Act
(NZLCA) 2006 § 241. On December 9, 2014, it issued an opin-
ion finding that the Standards Committee had proved all the
charged disciplinary rule violations, and it struck respondent
from the Roll.
3. Appeal to the New Zealand High Court
Respondent appealed the Disciplinary Tribunal
decision to the High Court in January 2015. Under the
applicable statute, the High Court hears appeals in disci-
plinary proceedings as a rehearing; parties are permitted to
introduce new evidence and make new arguments. NZLCA
§ 253(3). The High Court reaches its own decision on the
merits and owes no deference to the Disciplinary Tribunal’s
findings. It may confirm, reverse, or modify the Disciplinary
Tribunal’s decision. NZLCA § 253(4).
Respondent submitted multiple pleadings to the
High Court addressing various issues. He also submit-
ted new evidence, including affidavits concerning, among
other things, his health, residency, and financial condition.
During the pendency of the appeal, respondent returned to
New Zealand.
In January 2016, the parties submitted briefs on
the merits. In his written submissions, respondent chal-
lenged the Disciplinary Tribunal’s conclusion that his con-
duct violated the disciplinary rules. In addition, he claimed
that the Disciplinary Tribunal had deprived him of “natu-
ral justice”—which, the parties agree, is essentially equiv-
alent to due process in this country—in three ways: (1) by
denying him the opportunity to appear at the hearing by
telephone; (2) by failing to consider his challenge to one of
the Disciplinary Tribunal panel members; and (3) by consid-
ering the issue of the appropriate sanction notwithstanding
that he had not briefed that matter in his written submis-
sions. At a substantive hearing on respondent’s appeal, at
which respondent was present and participated, the High
Court discussed respondent’s natural justice arguments
244 In re Skagen
and later permitted the parties to submit further affidavits.
Both respondent and the Standards Committee availed
themselves of that option.
The High Court issued its decision in August 2016.
It considered the entire record, including the additional
evidence that respondent had submitted on appeal, and it
addressed respondent’s natural justice arguments. The
High Court dismissed five of the charges against respon-
dent but found him guilty on the remaining six charges
(the 12th having earlier been dismissed). Specifically, the
High Court determined that respondent had violated the
New Zealand disciplinary rules with respect to client E by
accepting instructions directly from the client and not from
an instructing solicitor, by failing to act in a timely and com-
petent manner, and by failing to repay monies due the client
at the termination of representation. With respect to client
W, the High Court determined that respondent violated the
New Zealand disciplinary rules by failing to act in a timely
and competent manner, and by failing to repay monies due
the client at the termination of representation. In addi-
tion, the High Court determined that respondent violated
the New Zealand disciplinary rules by failing to allow a
Law Society investigator to examine his financial accounts
during the investigation into his misconduct.6 Based on
those violations and respondent’s disciplinary record,7 the
High Court affirmed the sanction that respondent should be
stricken from the Roll.
6
In the client E matter, the High Court found that respondent committed
one violation of Rule 14.4 of the NZLCA (Conduct and Client Care Rules) 2008
(prohibiting barrister sole from accepting instructions to act for another person
other than from a person licensed to act as a barrister and solicitor) and two vio-
lations of Rule 3 of the NZLCA (Conduct and Client Care Rules) (requiring law-
yer to act competently and in a timely manner consistent with the terms of the
retainer and the duty to take reasonable care). In the client W matter, the High
Court found that respondent had committed two violations of Rule 3. In the ensu-
ing investigation into respondent’s misconduct, the High Court also found that
respondent violated Regulation 34(a) of the NZLCA (Trust Account Regulations)
2008, which requires a lawyer to permit an investigator to examine records and
accounts.
7
The High Court considered the two Oregon disciplinary proceedings dis-
cussed above, as well as a third disciplinary proceeding in New Zealand in 2012.
That matter arose out of respondent’s failure to complete discovery in a proper
manner in a matter in 2011. For that misconduct, respondent was censured,
required to reduce his fee, and ordered to pay compensation and costs.
Cite as 367 Or 236 (2020) 245
The High Court also rejected respondent’s natural
justice arguments. As an initial matter, it concluded that
the parties’ written submissions did not demonstrate that
there had been a need for the Disciplinary Tribunal to con-
duct an evidentiary hearing; they did not identify any evi-
dentiary issues that were disputed in that tribunal. And,
in any case, respondent had not challenged the proposal to
submit evidence on the written record and argue the law in
written submissions.
Turning to the specifics of respondent’s three nat-
ural justice claims, the High Court first found that the
Disciplinary Tribunal should have exercised its discretion
to allow respondent to appear at the hearing telephonically,
due to his financial condition. However, the High Court also
found that respondent was given an opportunity to have
that matter reviewed after filing his written submissions
with the tribunal, but he did not raise the issue again and,
instead, acquiesced to and participated in the process that
the tribunal had established. For that reason, the High
Court concluded, respondent suffered no violation of his
right to be heard.
The High Court also rejected respondent’s argu-
ment that he had been denied natural justice when the
Disciplinary Tribunal failed to consider his challenge to the
impartiality of one of the panel members. The High Court
noted that, while respondent had stated in an email that he
was “uncomfortable” with one member of the panel, he had
never filed a motion challenging that member’s participation
or otherwise pursued that concern before the Disciplinary
Tribunal, and he did not identify the failure to address his
discomfort with the panel member as a ground for appeal.
Finally, the High Court agreed with respondent
that the Disciplinary Tribunal should not have considered
the issue of the appropriate sanction without permitting
respondent to file further submissions on that subject after
it found him guilty of misconduct. Nevertheless, the High
Court rejected respondent’s argument that he was there-
fore deprived of natural justice, because respondent had
had a full opportunity to present evidence and arguments
respecting the appropriate sanction on appeal. As noted,
246 In re Skagen
respondent submitted to the High Court, among other
things, detailed medical evidence and arguments relating
to the earlier Oregon disciplinary decisions. The High Court
observed that those were the matters that respondent had
argued that he would have put forward to the Disciplinary
Tribunal on the question of the appropriate sanction. And,
the High Court continued, it had considered all of the new
evidence and arguments that respondent had submitted
to it and, notwithstanding that evidence, it concluded that
“the essential concerns about [respondent’s] conduct [were]
covered by the charges [that] were upheld * * * [and that
the] Tribunal was correct to find that overall [respondent’s]
conduct was dishonourable.” The High Court, therefore,
found that it was appropriate to strike respondent from the
Roll.
Respondent thereafter filed two separate appli-
cations for recall of the High Court’s judgment. The High
Court dismissed the applications.
E. Current Oregon Disciplinary Proceedings
As discussed, the Bar was made aware of the impo-
sition of discipline in New Zealand and initiated a reciprocal
discipline proceeding in Oregon. Based on the High Court’s
findings of violations of the New Zealand disciplinary rules,
the Bar alleged that respondent’s misconduct violated the
following Rules of Professional Conduct: RPC 1.3 (neglect
of a legal matter); RPC 1.4(a) (failure to keep a client rea-
sonably informed about the status of a matter); RPC 1.4(b)
(failure to explain a matter to the extent necessary to per-
mit a client to make informed decisions about the represen-
tation); RPC 1.5(a) (charging or collecting an excessive fee);
RPC 1.15-1(d) (failure to account for or return client funds
in his possession); RPC 1.16(d) (failure to fulfill duties upon
termination of representation); RPC 5.5(a) (practicing law in
violation of the regulations of the profession); RPC 8.1(a)(4)
(failure to respond to inquiries by a disciplinary authority);
and RPC 8.4(a)(4) (engaging in conduct prejudicial to the
administration of justice).8
8
The Bar also initially alleged that respondent’s misconduct in New Zealand
violated ORS 9.160(1), but it has abandoned that argument in this court.
Cite as 367 Or 236 (2020) 247
As noted, a trial panel of the Disciplinary Board
was convened, and the matter went to a hearing in January
2019. The trial panel issued an opinion, rejecting respon-
dent’s arguments that he was not afforded due process in
the New Zealand proceeding and concluding that respon-
dent should be reciprocally disbarred in Oregon as a result
of his misconduct in New Zealand. Respondent now seeks
review of the trial panel’s decision.
II. ANALYSIS
A. Applicability of BR 3.5
As a preliminary matter, respondent contends that
this court does not have authority under BR 3.5 to impose
reciprocal discipline, because a foreign country is not a
“jurisdiction” within the meaning of that word in BR 3.5(a)
and, therefore, the New Zealand decision striking him from
the Roll is not a “judgment, order, or determination of dis-
cipline” within the meaning of that phrase in BR 3.5(a) and
(b). We therefore begin with that issue before turning to con-
sider respondent’s challenges to the trial panel’s decision.
BR 3.5 provides, in part:
“(a) Petition; Notice to Answer. Upon learning that
an attorney has been disciplined for misconduct in another
jurisdiction not predicated upon a prior discipline of the
attorney pursuant to these rules, Disciplinary Counsel
shall file with the Disciplinary Board Clerk a petition seek-
ing reciprocal discipline of the attorney. The petition shall
include a copy of the judgment, order, or determination of
discipline in the other jurisdiction; may be supported by
other documents or affidavits; and shall contain a recom-
mendation as to the imposition of discipline in Oregon,
based on the discipline in the jurisdiction whose action is
reported, and such other information as the Bar deems
appropriate. * * *
“(b) Order of Judgment; Sufficient Evidence of Mis-
conduct; Rebuttable Presumption. A copy of the judgment,
order, or determination of discipline shall be sufficient evi-
dence for the purposes of this rule that the attorney com-
mitted the misconduct on which the other jurisdiction’s
discipline was based. There is a rebuttable presumption
that the sanction to be imposed shall be equivalent, to the
248 In re Skagen
extent reasonably practicable, to the sanction imposed in
the other jurisdiction.”
In support of his argument that the New Zealand
judgment striking him from the Roll cannot be a basis for
discipline in Oregon, respondent points to two cases: Small
v. United States, 544 US 385, 125 S Ct 1752, 161 L Ed 2d 651(2005), and In re Wilde, 68 A3d 749 (DC 2013). Respondent
argues that, under those cases, the plain meaning of “juris-
diction” refers only to domestic state and federal jurisdic-
tions, and if the Bar Rules of Procedure were intended
to apply to disciplinary judgments from foreign jurisdic-
tions, the rules would say so explicitly. That argument is
unpersuasive.
BR 3.5 applies to discipline for misconduct in
“another jurisdiction” and requires the Bar to provide a
copy of the determination of discipline from the “other juris-
diction.” The Bar Rules do not define or limit the scope of
the word “jurisdiction” in BR 3.5 to only those jurisdictions
within the United States. Moreover, respondent points to
nothing in the text, the context, or the history of the adop-
tion of BR 3.5 that suggests any reason to interpret that rule
to apply only to judgments issued by American courts.
In addition, the cases that respondent cites are
inapposite and do not assist him. Both cases involve under-
lying criminal convictions entered against persons outside
the United States. In Small, the United States Supreme
Court considered whether a conviction in a foreign country
can be a predicate crime for a felon in possession of a fire-
arm charge under a federal criminal statute. The Court con-
sidered the meaning of the phrase “convicted in any court”
in 18 USC § 922(g)(1), which makes it a crime for a per-
son who has been “convicted in any court of a crime pun-
ishable by imprisonment for a term exceeding one year” to
possess any firearm. The Court held that, for purposes of
that criminal statute, the phrase “convicted in any court”
encompasses only domestic, not foreign, convictions. Small,
544 US at 386. Similarly, in Wilde, the District of Columbia
Court of Appeals considered the meaning of the phrase “con-
viction of a crime” in a District of Columbia disciplinary rule
that provided for disbarment of lawyers convicted of crimes
Cite as 367 Or 236 (2020) 249
of moral turpitude. The court interpreted the word “convic-
tion” to apply only to domestic convictions, because foreign
convictions differ from domestic convictions in such import-
ant ways that it was appropriate to assume that if the rule
were intended to apply to foreign convictions it would say so.
68 A3d at 758.
Respondent argues that, notwithstanding the
fact that neither case was concerned with the meaning
of the word “jurisdiction” in a disciplinary rules context
or addressed reciprocal discipline, they nonetheless are
instructive because “disciplinary proceedings in a foreign
country * * * bring characteristics of criminal convictions in
the same manner that criminal convictions in Oregon can
result in disbarment.” That argument is not well taken.
First, as this court has stated, lawyer discipline proceed-
ings are not criminal prosecutions, In re Sanai, 360 Or 497,
530, 383 P3d 821 (2016) (so stating); see also ORS 9.529 (bar
proceedings are sui generis; they are within this court’s
inherent power to control, and they are neither civil nor
criminal in nature), and neither disbarment nor any other
sanction is criminal punishment. In re Sassor, 299 Or 720,
728, 705 P2d 736 (1985) (“Suspension or permanent disbar-
ment for violations of the Disciplinary Rules is not a form
of punishment for criminal conduct or moral turpitude. Its
purpose is to protect the public from incompetent, dishon-
est, or irresponsible professional behavior.”). Second, in both
Small and Wilde, the decisions turned at least in part on
the courts’ concern that foreign convictions may be based on
conduct that our domestic laws would permit or punish less
severely or that would be inconsistent with an American
understanding of fairness. Small, 544 US at 389-90; Wilde,
68 A3d at 756. No such concern exists in reciprocal disci-
pline proceedings, because BR 3.5 ensures that the conduct
for which the lawyer was disciplined in the other jurisdic-
tion was conduct that would subject a lawyer to discipline
in Oregon. BR 3.5(c)(2). Moreover, under BR 3.5, reciprocal
discipline can be imposed only if the lawyer was afforded
due process in the other jurisdiction. BR 3.5(c)(1). For those
reasons, we conclude that the Oregon Rules of Professional
Conduct provide for reciprocal discipline based on a deter-
mination of discipline against an Oregon lawyer who has
250 In re Skagen
committed professional misconduct in another jurisdiction,
whether that other jurisdiction is foreign or domestic, so
long as the requirements for reciprocal discipline are met.
B. Regulatory Framework
We turn now to a brief description of those require-
ments and our process for determining whether to impose
reciprocal discipline. In a reciprocal discipline proceeding,
the order of discipline is “sufficient evidence * * * that the
attorney committed the misconduct on which the other juris-
diction’s discipline was based.” BR 3.5(b). For that reason, the
Oregon disciplinary proceeding may not be used to challenge
the factual findings of the foreign jurisdiction. Sanai, 360
Or at 500. Instead, this court’s decision whether to impose
reciprocal discipline turns on three questions: (1) whether
the procedure in the jurisdiction that disciplined the law-
yer “was so lacking in notice or opportunity to be heard
as to constitute a deprivation of due process,” (2) whether
the conduct for which the lawyer was disciplined in the other
jurisdiction is conduct that should subject the lawyer to dis-
cipline here in Oregon, and (3) whether imposing the same
sanction that the other jurisdiction imposed would result in
“grave injustice or be offensive to public policy.” BR 3.5(c).
It is the lawyer’s burden to prove that due process was not
afforded him or her in the other jurisdiction. BR 3.5(e).
C. Respondent’s Due Process Arguments
Respondent argues that he was denied due process
in the New Zealand proceeding in seven ways. Several of
those arguments pertain to events that occurred before the
Disciplinary Tribunal. As we have discussed, respondent
appealed the decision of the Disciplinary Tribunal to the
High Court. Respondent participated fully in the proceed-
ings before the High Court. Further, the High Court per-
mitted the parties to submit additional evidence and argu-
ments, and it considered the matter de novo.9 Therefore, any
9
The High Court also observed that certain of respondent’s “natural justice”
arguments pertaining to events before the Disciplinary Tribunal were unpre-
served or asserted alleged violations of his clients’ rights and not his own. In
addition, we note that one of respondent’s claimed due process violations is based
on his contention that he was not given adequate notice that his license would
not be renewed. We reject that contention. As recounted above, when respon-
dent renewed his license in 2010, he did so subject to the condition that he make
Cite as 367 Or 236 (2020) 251
deficiencies in the process before the Disciplinary Tribunal
were cured by the subsequent proceeding before the High
Court, and respondent does not dispute that he received a
full rehearing, with the opportunity to present additional
evidence and argument, in that court. For that reason, we
reject those arguments without discussion.
Respondent makes two arguments that merit brief
examination. As we shall explain, however, neither argu-
ment is well taken.
First, respondent argues that he was deprived of
due process in the New Zealand proceeding because the
New Zealand courts use a “balance of probabilities” stan-
dard of proof, whereas Oregon courts use the higher “clear
and convincing” evidence standard of proof. At oral argu-
ment in this matter, however, respondent conceded that
Oregon courts are under no constitutional mandate to use a
clear and convincing evidence standard of proof as opposed
to any lesser standard of proof. And, in fact, this court rou-
tinely imposes reciprocal discipline in cases where the other
jurisdiction sanctioned a lawyer based on a standard less
than clear and convincing evidence.10
Second, respondent argues that the New Zealand
rules of professional responsibility are unreasonably vague,
monthly payments on the costs assessed in 2008. Despite that condition, respon-
dent made only one payment. Then, in April and June 2011, the Law Society
sent respondent letters reminding him that all licenses had to be renewed by
July 1 and that it could take his failure to make the payments into account when
determining whether to renew his license. Nevertheless, respondent still did not
make the payments. He allowed his license to lapse on July 1. The Law Society
told respondent that, in order to renew his license, he would need to pay the over-
due cost award and the renewal fee. Although respondent submitted a renewal
application, he failed to pay both the cost award and the renewal fee. We conclude
that respondent had more than sufficient notice of what he needed to do to renew
his license.
10
For example, in Sanai, this court imposed reciprocal discipline on a law-
yer whom the Washington Supreme Court had disbarred. Sanai, 360 Or at 543.
In Washington, lawyer misconduct must be proved by “a clear preponderance of
the evidence.” Washington State Court Rules, Rule for Enforcement of Lawyer
Conduct 10.14(b). Likewise, this court imposed a reciprocal suspension on a law-
yer who had entered into a stipulation for discipline in Washington in In re Page,
326 Or 572, 955 P2d 239 (1998). And in In re Devers, 317 Or 261, 263, 855 P2d
617 (1993), the court reciprocally suspended a lawyer after he was suspended for
unethical conduct in Michigan. In Michigan, lawyer misconduct must be estab-
lished by a preponderance of the evidence. Michigan Court Rule 9.115(J)(3).
252 In re Skagen
insofar as, for example, they permit discipline on a finding of
misconduct, which is defined as conduct “that would reason-
ably be regarded by lawyers of good standing as disgrace-
ful or dishonourable.” NZLCA 2006 § 7(1)(a)(i). Respondent’s
argument ignores the fact that the High Court found that
respondent committed six violations of the New Zealand
Lawyers and Conveyancers Act, involving three separate
and specific provisions of that law, which the High Court
quoted and discussed in its opinion, and it imposed disci-
pline on that basis. Therefore, the fact that the New Zealand
disciplinary rules include some terms that, on their face,
may appear vague, does not persuade us that, as a whole,
the New Zealand attorney discipline system does not pro-
vide lawyers with notice of what is expected.
As is evident from the foregoing, we conclude that
respondent has not met his burden to establish that he was
deprived of due process in the New Zealand proceedings
leading to his disbarment.
D. The Oregon Charges and the Appropriate Sanction
As we have explained, the High Court found that
respondent violated the New Zealand rules of professional
conduct by commencing work for client E without proper
authority and, in both the client E and the client W mat-
ters, by failing to complete the representation and then
refusing to return unearned fees. The High Court also
found that respondent failed to cooperate with disciplinary
authorities in the investigation into his misconduct. The
Bar alleged and the trial panel found that that misconduct
in New Zealand also violated the following Oregon Rules of
Professional Conduct: RPC 1.3 (neglect of a legal matter);
RPC 1.4(a) (failure to keep a client reasonably informed
about the status of a matter); RPC 1.4(b) (failure to explain a
matter to permit client to make informed decisions regard-
ing the representation); RPC 1.5(a) (charging an excessive
fee); RPC 1.15-1(d) (failure to account for client funds); RPC
1.16(d) (failure upon termination to take steps to protect cli-
ent interests, including refunding unearned portions of fees
paid in advance); RPC 5.5(a) (practicing law in violation of
the regulations of the profession); RPC 8.1(a)(2) (knowing
failure to respond to lawful demand for information from a
Cite as 367 Or 236 (2020) 253
disciplinary authority); and RPC 8.4(a)(4) (engaging in con-
duct prejudicial to the administration of justice).
Respondent asserts, without elaboration, that his
misconduct in New Zealand violated only two Oregon disci-
plinary rules, RPC 1.4(a) and RPC 8.1(a)(2), and that those
two violations are insufficient to justify disbarring him in
Oregon. We agree with the Bar and the trial panel that
respondent’s conduct in New Zealand would violate the Rules
of Professional Conduct as set out above. We turn, therefore,
to consider the appropriate sanction for respondent’s mis-
conduct. In so doing, we keep in mind the final consideration
required by BR 3.5: whether imposing the same sanction
that the other jurisdiction imposed would result in “grave
injustice or be offensive to public policy.” BR 3.5(c)(3).
In reciprocal discipline cases, this court has an inde-
pendent obligation to determine the appropriate sanction
based on this state’s disciplinary rules. Sanai, 360 Or at 538.
In so doing, we refer first to the American Bar Association’s
Standards for Imposing Lawyer Sanctions (1991) (amended
1992) (ABA Standards) for guidance. In re Walton, 352 Or
548, 555, 287 P3d 1098 (2012). Under the framework estab-
lished by the ABA Standards, we first consider the duty vio-
lated, the accused’s mental state, and the actual or potential
injury caused by the accused’s misconduct. ABA Standard
3.0. Next, we consider any aggravating and mitigating cir-
cumstances. Sanai, 360 Or at 538. Finally, we consider the
appropriate sanction in light of this court’s case law. Id.Respondent violated his duties of diligence and com-
petence to both clients E and W. By collecting fees for work he
did not perform, practicing law in violation of New Zealand law
and regulations, and failing to cooperate with the Standards
Committee investigation, respondent violated duties owed to
the legal profession. Further, the record of the New Zealand
proceeding demonstrates that respondent acted knowingly
or intentionally with respect to each of the violations. And
respondent’s conduct resulted in actual injury to both client E
and client W, who were never refunded the advance fees they
paid for services that respondent did not perform. Client W
also was forced to pay a NZ$800 cost assessment arising out
of respondent’s failure to submit a required affidavit.
254 In re Skagen
Based on the disciplinary violations that we have
found and our conclusions respecting the duties violated,
respondent’s mental state, and the injuries caused by respon-
dent’s misconduct, the presumptive sanction under the ABA
Standards is disbarment. That is, disbarment is generally
appropriate when a lawyer either knowingly fails to perform
services for a client and causes serious or potentially serious
injury, or engages in a pattern of neglect with respect to cli-
ent matters and causes serious or potentially serious injury.
ABA Standard 4.41(b), (c). In addition, disbarment is gener-
ally appropriate when a lawyer has been suspended for the
same or similar misconduct, and intentionally or knowingly
engages in further acts of misconduct that cause injury or
potential injury to a client, the public, the legal system, or
the profession. ABA Standard 8.1(b).
We next consider the existence of aggravating
or mitigating circumstances that may affect our sanction
determination.
We find several aggravating circumstances that are
relevant to our determination. First, respondent has a signif-
icant history of similar disciplinary offenses. ABA Standard
9.22(a). As discussed, respondent was suspended in 2006 for
one year for failing to deposit and maintain client funds in
trust, failing to maintain complete records of client funds
in his possession and to render appropriate accountings of
those funds, failing to maintain an interest-bearing trust
account, engaging in conduct prejudicial to the administra-
tion of justice, and failing to respond fully and truthfully to
inquiries from, and comply with reasonable requests of, an
investigatory authority. Skagen, 342 Or 183. Again in 2008,
respondent was suspended for 18 months by a Disciplinary
Board trial panel for failing to keep sufficient records of cli-
ent funds in his possession and failing to deposit and main-
tain in trust unearned fees paid in advance. Skagen, 22 DB
Rptr 292. And in 2012, respondent was subject to discipline
in New Zealand; he was censured, required to reduce his
fee, and ordered to pay compensation and costs for failure to
complete discovery in a proper manner in a matter.
In addition we find that, in failing to return
unearned fees to clients E and W, respondent acted with
Cite as 367 Or 236 (2020) 255
a selfish motive. ABA Standard 9.22(b). And we find that
respondent has engaged in a pattern of misconduct, ABA
Standard 9.22(c), and that he has committed multiple
offenses, ABA Standard 9.22(d).
We also find that respondent has refused to acknowl-
edge the wrongfulness of his conduct. ABA Standard
9.22(g). For one example, in the New Zealand proceeding,
after initially admitting that he was required to repay cli-
ent E the fees he had paid in advance, he later argued to
the Disciplinary Tribunal that E had breached the retainer
agreement and therefore repayment was not required. The
High Court found that taking such a position was “disin-
genuous and dishonest,” and, in the terms used in the appli-
cable statute, “disgraceful and dishonourable.” And in this
proceeding, respondent has refused to concede that his mis-
conduct in New Zealand violated several similar Oregon
disciplinary rules, and he continues to maintain that he is
and always has been entitled to disobey requests from disci-
plinary authorities for his financial records.
Finally, respondent has substantial experience in
the practice of law. ABA Standard 9.22(i).
The record reflects only one mitigating factor:
respondent’s disbarment in New Zealand constitutes the
imposition of another sanction for the misconduct. ABA
Standard 9.32(k). On balance, the aggravating factors out-
weigh the sole mitigating factor and support a determina-
tion to disbar respondent.
Turning to Oregon case law, we observe that this
court has disbarred lawyers whose collective misconduct
demonstrated disregard for clients, professional obligations,
and the disciplinary rules. It has “ordered disbarment for
conduct that otherwise would justify a long suspension when
the accused has a history of misconduct that has resulted
in prior disciplinary sanctions.” In re Paulson, 346 Or 676,
722, 216 P3d 859 (2009), adh’d to as modified on recons, 349
Or 529, 255 P3d 41 (2010). The court has disbarred lawyers
for engaging in a pattern of misrepresentation, neglect,
and failure to act on behalf of clients. E.g., In re Sousa, 323
Or 137, 146-47, 915 P2d 408 (1996). And it has disbarred
256 In re Skagen
lawyers who neglect clients’ cases and refuse to cooperate
with regulatory authorities after already having been dis-
ciplined for the same or similar misconduct. In re Bourcier,
325 Or 429, 436-37, 939 P2d 604 (1997). Those cases also
support a determination to disbar respondent.
After considering the ABA Standards and our case
law, we conclude that the misconduct for which respondent
was struck from the Roll in New Zealand warrants dis-
barment in Oregon. We also find nothing in the record to
suggest that disbarring respondent “would result in grave
injustice or be offensive to public policy.” BR 3.5(c)(3). We
therefore hold that respondent should be disbarred as a
reciprocal sanction for his misconduct in New Zealand.
Respondent is disbarred.