The Curious Case of the Poor, Innocent Attorney
A month ago, I wrote an article about the regulatory capture clearly underway at the Oregon State Bar (OSB), in which the interest of protecting the public has been supplanted by the interest of protecting politically-connected lawyers and law firms.
In particular, my article described the current Bar Rules regarding a “Form B resignation,” an escape hatch an attorney under disciplinary investigation by the OSB can use to end scrutiny into their misconduct.
Attorneys usually take this option when the writing is on the wall, and there is absolutely nothing to be gained by pretending that they can’t read it. It’s like quitting rather than being fired in publicly humiliating fashion.
An attorney’s Form B must list all of those people that complained about their professional conduct — usually clients — and itemize their “complaints, allegations or instances of alleged misconduct.” Failure to follow these two simple requirements will result in the Form B being rejected by Oregon’s Supreme Court, who ultimately oversees attorney discipline.
When the Chief Justice signs the Form B, it means that the attorney is effectively disbarred — the most severe punishment available — and the attorney limps off into the sunset, never to practice law again… hopefully.
And according to a recent decision by the Chief Judge of Oregon’s Court of Appeals (CoA), a Form B means literally nothing else, especially not to the victims who are listed on it.
Chief Judge James C. Egan — reelected just this year — had the opportunity to make this proclamation in a custody case that had made its way to the appellate court. One of the parties, Marita Barth, had been represented by an attorney who resigned via Form B in April 2018.
That attorney, Megan M. Perry of the firm Perry & Moeller, P.C., had been facing sixteen open disciplinary matters, with another waiting on deck.¹ The alleged misconduct she had been defending herself against included numerous instances of violations of the dreaded Rule 8.4(a)(3) of the Oregon Rules of Professional Conduct, prohibiting “conduct involving dishonesty, fraud, deceit, or misrepresentation.”
In representing Barth, Perry had, allegedly, “taken action without a nonfrivolous basis in law or fact,” improperly communicated with unrepresented parties, and conducted herself in a manner “prejudicial to the administration of justice.”
A normal client would be mighty and rightly pissed about this egregious misconduct, especially since it resulted in both contempt and sanctions for Barth.
But strangely, Barth did not file a complaint against Perry. Her ex-husband Gavin McNett, however, did. Full disclosure: McNett is my domestic partner.
Upon receipt of Perry’s final Form B resignation, McNett filed motions in the trial and appellate courts, asking that both judges there take “judicial notice” of the document — i.e. take official notice of the resignation and what it seemed to represent.
In McNett’s mind, the Form B represented a rebuttable presumption that Perry had taken frivolous positions, had engaged in improper contact with witnesses, and had acted to prejudice the court — ‘rebuttable presumption’ meaning that an attorney who resigns via Form B may be presumed to have committed the misconduct listed on the form, because why else would an attorney resign over it? Rebuttable presumption also means that the court will hear and evaluate an argument against crediting the presumption.
The Appellate Commissioner of the Court of Appeals denied this, stating that the Form B does not “amount to a finding that any of the allegations in the various complaints are true.”
McNett then moved the Court to reconsider that denial. In late August, Judge Egan denied that motion as well, stating that Perry’s Form B only counted “for Bar disciplinary purposes.” Judge Egan wrote:
“The Form B resignation does not show whether Ms. Perry’s conduct occurred in the context of this case or what conduct Ms. Perry engaged in that the Bar believes constituted the alleged violations in the Form B resignation. Even if Ms. Perry’s actions took place in the context of this case, the Form B resignation does not show that those actions disrupted the workings of the trial court in this case or prejudiced its rulings (or even a rebuttable presumption to that effect.) For all the Form B resignation shows, the trial judge overcame Ms. Perry’s alleged ethical lapses and rendered valid decisions.”²
On its face, it seemed as though Judge Egan wanted McNett to appeal his denial — attorney discipline and Form B’s are not within the CoA’s purview. Considered further, the ruling was poorly reasoned and gave all its sympathy to the attorney who resigned under sixteen investigations for “conduct involving dishonesty, fraud, deceit, or misrepresentation,” saving none for the victims who looked to the courts for justice.
Even more troubling was the order’s footnote. It read:
“A lawyer may elect not to defend against disciplinary charges and may chose [sic] to leave the practice of law for reasons that have nothing to do with the validity of the charges. The resources needed to defend against, as here, 16 complaints involving at least 49 alleged violations may be prohibitive, even if the attorney believes some or all charges may not be valid.”
Why yes, we should get Megan Perry a pony. I don’t know why we didn’t sooner. She’s been through so much. #PrimaFaciepalm
Let’s break this reasoning down a bit, because it is certainly faulty: An attorney might choose to quit rather than defend against charges because, um, oh here’s one: resources.
For starters, is there anyone in a better position to defend against invalid charges than an attorney, with three years of legal education, a license to practice law, and however many years of actual practice under their belts?
Attorneys are way better positioned than John Q. Blackman³ who must go bankrupt (and is often driven briefly insane) defending himself, and who is then forced to learn law in jail so that he can eventually be released on the technicality that he was innocent the whole time.
So let’s not talk about an attorney’s resources while holding litigants and those accused of crimes to a different standard. If you KNOW you’re innocent, you keep fighting — just ask Oregon attorney Andrew Long.
Speaking specifically about Perry, she had two high-billing attorneys from the international firm of Holland & Knight racking up hours on her behalf, although even they seemed to know that her case was comedy gold.
Secondly, using Perry’s case as an extreme reference: Why yes, 16 open complaints with 49 specific allegations certainly must feel “prohibitive.” Gosh, if only there were a way to have a plausible defense against so many allegations of misconduct.
Oh, right: Don’t be a misconducty horrorshow like Megan Perry! If 16 people falsely accused me of 49 specific misdeeds, you can bet I’d have an honest alibi for at least some of them. New lawyers, I hope you’re taking notes.
Does anyone actually believe that these sixteen complaints against Perry — some involving court documents that somehow got forged while in Perry’s possession — all falsely got past the OSB’s initial screening process, and then were all falsely taken seriously by the Disciplinary Counsel’s Office, who then falsely baffled Perry and her attorneys by asking questions like, “Did you forge this court document?”
That brings us to another thing that keeps coming up in my research regarding attorney discipline: lawyers’ preoccupation with “frivolous” bar complaints, i.e. meritless complaints made tactically with the intent to harm the reputation of an ethical attorney.
It makes me wonder if any study has been done on the actual frequency of revenge complaints. I am aware of one attorney who has been genuinely harmed by genuinely frivolous complaints, but I also strongly suspect that the fear of frivolous complaints in a system that continually fails to see Megan Perry as the villain is like the fear of fatal, unprovoked shark attacks by the kind of Americans most likely to die from preventable heart disease and misadventures of the hold-my-beer variety.
This strangely pervasive, irrational fear may have been the driving factor in the OSB’s headlong, airbag-exploding careen into regulatory capture. By conquering it, just maybe the Oregon State Bar could get on with their duty to regulate their profession and protect the public.
Indeed, in 2014, the American Bar Association strongly asked the Oregon State Bar to recommit to its mission of protecting the public by eliminating the misconduct loophole of the Form B.
Last week, Gavin McNett filed a Petition for Supreme Court Review of Judge Egan’s ruling, and its reasoning that a disbarment by Form B means nothing, legally, to victims of attorney misconduct.
The Supreme Court may or may not decide to consider the petition, but since attorney discipline is a matter of original jurisdiction for the Supreme Court and the meaning of the Form B is a matter of first impression — and possibly a sore point for the current Chief Justice⁴ — there is a fair chance for the petition to make a difference in the way the Oregon State Bar treats the public it is tasked with protecting.
Ironically, the OSB should be the first organization that would want to file an amicus curiae brief on behalf of the petition. Yet the OSB’s Office of Disciplinary Counsel has been acting as if addressing the loophole of the Form B interfered with an imagined duty to let unscrupulous attorneys off the hook, and have been treating McNett as an adversary instead of a member of the public that they exist to protect.
The actions of the Office of Disciplinary Counsel can only be described as defensive and transparently retaliatory — like a pack of middle-school bullies who were permitted to run the student government and prom committees, and came to believe that the school belongs to them.
The OSB has failed twice to even acknowledge McNett’s requests for them to file an amicus brief with the courts that Megan Perry manipulated. There is no expectation that they will behave any more responsibly now that the matter has escalated to a Supreme Court petition.
It is almost as though the OSB should be served and treated as a party adverse to the regulation of their profession.
The OSB also refused to respond to my repeated requests for quotes and input for this article. And yet, despite hysterically deriding me as a “New Jersey blogger” to Oregon government agencies, they sure do give me a lot of their spokesperson’s and General Counsel’s time and attention. #Busted #Didn’tThinkThatThru
Most recently, the OSB gave me their time and attention by petulantly breaking all the links to their site that were embedded in my story of a month ago, apparently by taking down their entire Board of Governors data-dump server, and with it all the information on the OSB’s meeting schedules and agendas.
The OSB is not doing their best thinking. This being the 21st Century and the Internet being a thing, I had long ago downloaded all those documents, and they are now re-linked and viewable through DocumentCloud.
¹ Earlier in her brief career (almost exactly four years), Perry had racked up another six professional complaints, bringing her total to 23 before she hit the explosive bolts via Form B.
² This is actually laughable because the trial judge, Sally L. Avera, is no longer a judge (cough). Article coming about her implosion this month.
³ Oregon, I know you’re frantically looking up “John Q. Blackman,” but he’s a metaphor, m’kay?
⁴ Chief Justice Martha L. Walters was the Supreme Court liaison to the committee which reviewed the ABA’s recommendation to eliminate the option of resigning under Form B. Her Honor was actually present at a committee meeting at which there was zero support for the ABA recommendation. Incredibly, at this meeting, attorney Barnes Ellis (who in my opinion strong-armed his way onto the committee) moved “to allow reinstatement after a Form B resignation.”