In re Complaint as to the Conduct of Kluge, 332 Or. 251

Summary

The Supreme Court of Oregon reviewed a lawyer disciplinary proceeding arising from David R. Kluge's default. The court held that the alleged conduct established violations involving dishonesty, unlawful practice of law, failure to withdraw when serving as a potential witness, and false statements, and increased the sanction from an 18-month suspension to a three-year suspension.

Holdings

1. When an accused lawyer defaults, the court may deem the allegations in the disciplinary complaint true and determine de novo whether those allegations establish the charged violations.
2. Kluge's knowing false representation that he was a notary public, followed by his administration of an oath, violated DR 1-102(A)(3) and DR 7-102(A)(5); reliance was not required, and the allegations established materiality.
3. Reliance or proof that a false statement actually misled its recipient is not required to establish a violation of DR 7-102(A)(5).
4. Kluge violated DR 5-102(C) by continuing to represent Wogan after learning that he would or might be called as a witness and that his testimony might be prejudicial to Wogan.
5. Practicing law in Oregon without the professional liability insurance required by ORS 9.080 and the Oregon State Bar's bylaws violated DR 3-101(B).
6. Kluge violated DR 1-102(A)(3) by falsely representing from 1995 through 1998 that he was exempt from Professional Liability Fund coverage because he did not engage in private practice.
7. After default, the Bar must rely on the complaint's deemed-true facts to establish responsibility for the charged violations, but BR 5.8(a) permits the trial panel to consider additional sanctions-phase evidence showing a more serious mental state when determining the appropriate sanction.
8. A three-year suspension from the practice of law was the appropriate sanction for Kluge's multiple intentional violations involving dishonesty, practicing without required insurance, failure to withdraw as a lawyer-witness, and false representations.

Questions Presented

1. Whether, following Kluge's default, the allegations in the Oregon State Bar's complaint could be deemed true and used to establish disciplinary violations on de novo review.
2. Whether falsely representing that he was a notary public and administering an oath established violations of DR 1-102(A)(3) and DR 7-102(A)(5), including whether materiality or reliance was required.
3. Whether continuing to represent Wogan after learning that he might be called as a prejudicial witness violated DR 5-102(C).
4. Whether practicing law without Professional Liability Fund insurance violated DR 3-101(B), in light of ORS 9.080(2)(a) and Oregon State Bar Bylaws 15.1 and 15.2.
5. Whether Kluge's false representations to the Professional Liability Fund established additional violations of DR 1-102(A)(3), including for 1995.
6. Whether, in a defaulted disciplinary proceeding, the Bar may present additional evidence of a more culpable mental state at a sanctions hearing.
7. What sanction was appropriate for the established violations.

Disposition

other