In re Complaint as to the Conduct of Willard Merkel, 341 Or. 142

Summary

The Oregon Supreme Court reviewed a lawyer disciplinary proceeding involving alleged ex parte communication with an arbitrator and alleged misrepresentations concerning telephone testimony and a call to opposing counsel. On de novo review, the court held that the Oregon State Bar failed to prove either violation by clear and convincing evidence and dismissed the complaint. Three justices dissented in part, concluding that the accused misrepresented the arbitrator’s ruling.

Holdings

1. The Bar failed to prove by clear and convincing evidence that Merkel's conversation with the arbitrator concerned the merits of the pending proceeding or was an attempt to improperly influence the arbitrator; therefore, no violation of DR 7-110(B) was established.
2. The Bar failed to prove by clear and convincing evidence that Merkel knowingly misrepresented the arbitrator's position or knowingly failed to disclose a material fact in his letter to opposing counsel.
3. The Bar failed to prove by clear and convincing evidence that Merkel knowingly made a false statement when he reported that he had called opposing counsel's office.

Questions Presented

1. Whether Merkel's brief telephone conversation with the arbitrator constituted an ex parte communication concerning the merits of a pending proceeding in violation of DR 7-110(B).
2. Whether Merkel's letter to opposing counsel knowingly misrepresented the arbitrator's position regarding telephone testimony in violation of DR 1-102(A)(3).
3. Whether Merkel knowingly made a false statement to the Bar by stating that he had called opposing counsel before contacting the arbitrator, in violation of DR 1-102(A)(3).

Disposition

dismissed