the Dogs that Didn’t Bark

Oregon’s Failure of Ethics and Duty

It is well established that attorneys like to refer to Sir Arthur Conan Doyle’s short story, “the Adventure of Silver Blaze.” For those unfamiliar with the mystery, there is a “curious incident” in which a watchdog fails to bark as a famous racehorse is stolen. Due to the absence of any commotion, Sherlock Holmes deduces that the thief was not a stranger to the dog, but someone whom the dog knew and trusted. Spoiler: it was the horse’s own trainer.

In court, attorneys use this concept to find and expose similar “negative facts,” i.e. facts that are expected yet conspicuously absent from the record. In doing so, they effectively blow holes in their opponent’s testimony. It’s a handy little device, used frequently in one-dimensional and easily understood situations, such as a lack of grief exhibited by a person after the death of their spouse.

However, the method truly shows its worth when used in circumstances that most people struggle to imagine or accept: like instances of public corruption, bribery, and coercion; or conspiracies in which everyone is kept in line with the very real threat of mutually assured destruction.

In other words: a situation in which a dog cannot bark because it has a mouthful of treats — or because another dog will bark at him if he does.

Thus we arrive at the courthouses of Linn, Benton, and Polk Counties, Oregon, in which recently disbarred attorney Megan M. Perry regularly practiced her own distinctive fusion of lawyering and crime.

Inside those three courts, there were a whole lot of dogs that did not bark.

The judges of Linn County, where Perry appeared most frequently, should have barked first and loudest: over half of her twenty-three total bar complaints stemmed from matters there; and almost a quarter were cases under one judge, Judge David Delsman. Two of those cases involved alleged forgeries of court documents and other public records.

By all accounts, Perry’s misconduct was an open secret in the Linn legal community, and indeed visible from space if any outsiders happened to look. Yet Perry’s Oregon State Bar (OSB) disciplinary file is stunningly barren of ethics complaints submitted by those judges, despite it being their duty to report it when they see it.

In Polk County, Perry appeared before all three judges there during her turbulent representation in custody case 13P2615. Over almost three years, Perry calculatingly tied the court and its staff into a wet knot, tampered with witnesses, obstructed discovery, ran up a remedial contempt fine of $25,000, had ex parte communications, and made numerous, obviously false statements on the record, most notably her claim to have sent out dozens of subpoenas to “disprove child abuse,” when in fact she had sent out zero.

Despite sanctioning Perry early on, former judge Sally Avera failed in the same way her Linn counterparts did. Avera also failed to report Perry’s unhindered criminal conduct to the appropriate authorities.

Instead, Avera abruptly “forgot” how subpoenas and the rules of civil procedure worked, and entered an order absolving Perry from having to produce copies of her alleged subpoenas, or their proofs of service. Concurrently, Avera used Perry’s claims that the subpoenas disproved child abuse to form her strange findings that no child abuse had occurred, and that there were no hidden medical records in the case.

Avera also inexplicably nunc pro tunced this order back nearly a year — despite it being the first time the order was entered — enabling Perry to get out of the hefty remedial fine.

As the final kicker, on her very last day of work before “retirement,” Avera spontaneously “forgot” how jurisdiction worked and authored a punitive and retaliatory edict regarding enforcement of another state’s child support order — a matter over which she had literally no authority.

It is unknown to what extent court staff in Linn and Benton were aware of Perry’s bad behavior, but judging by notations in various dockets, it is clear that there were suspicions.

In Polk, however, by the end of her official tenancy in the case, Perry’s misconduct was not only witnessed by court staff, they had seemingly become parties to it.

Trial court administrator Heidi Bittick repeatedly intervened in the case in a way that suggested a personal interest in its outcome: she falsely certified the record, interfered with trial exhibits and transcripts, suppressed filings from Avera, illegally withheld garnishment checks, and continually blocked a suspected forged order from being authenticated.

Judicial assistant Tracey Eastlund also conducted herself peculiarly in the case, and exchanged improper and frankly bizarre communications with a witness during the three-day trial.

Attorneys also have a duty to report misconduct by their peers and judges, according to the OSB’s RPC Rule 8.3(a) and (b). Clearly it’s an unpopular duty, but there for a reason… like spectacularly toxic events exactly such as Megan Perry.

In Linn County, only a handful took this duty seriously, including attorney Jeffrey Goodwin (now involuntarily inactive), and Rebecca Winters, who recently ran for judge there. Both filed professional complaints with the OSB.

Two others emailed a tip alleging not only ethics violations by Perry and her partner/husband, Erik Moeller, but criminal conduct as well. Their mistake was trusting that the Oregon State Bar would actually care about these crimes and their victims, i.e. the public that the OSB had a duty to protect. Perry’s participation in the OSB’s Modest Means Program and Moeller’s role as a contractor with the state’s Office of Public Defense Services ensured that vulnerable Oregonians would most suffer from the OSB’s lack of care in ignoring that email.

Polk County fared much worse, with zero percent of the attorneys who faced Perry reporting her misconduct. One of those attorneys had repeatedly stated to his client that he would be filing a complaint for Perry’s witness tampering and related transgressions. Another, the first’s replacement, who should have reported both Perry and Avera, instead abruptly quit a month before her client’s three-day trial.

As Perry’s misconduct began to be reported by her victims themselves — in an avalanche that started in late 2016 and gained critical mass the following fall — the Oregon State Bar revealed that their duty to protect the public from bad lawyers took a backseat to their duty to prop up public perception of themselves and the Oregon judiciary… and to protect their coffers.

In one of Perry’s earliest complaints, a victim stated that the OSB’s Client Assistance Office (CAO) tried to talk him out of filing a complaint, because there was a “good chance” she would “quit representing” him if he did.

At least two other families tried to file complaints by phone with the CAO in 2015 and 2016, and did not receive responses. Both alleged forgeries and notarial mischief by Perry, but due to the overwhelming nature of the problems she had caused them, they were unable to follow up before she was disbarred.

Another complainant was turned away by the CAO in fall 2017 because his opponent — his ex-wife — had already filed a complaint regarding the same matter, and the information he provided did “not support the need to open a second investigation.” That was an extraordinary response by the CAO, because in reading both complaints cover to cover as I did, it is clear that the man’s ex had hired Perry solely to eradicate his parental rights but had largely failed; and due to this, the former couple’s mutual interest in investigating Perry was for profoundly different reasons.

In late January, Perry’s final complaint rolled in, which alleged all the same misconduct for which she was already notorious. Instead of referring this complaint directly to the Disciplinary Counsel Office (DCO), as they had done for the previous six, the CAO strangely asked the victim for more documentation. By the time the victim was able to respond, Perry had already announced her plan to surrender her law license.

The OSB’s Disciplinary Counsel and their General Counsel (i.e. the OSB’s own lawyers) had an even poorer showing regarding Perry than the CAO did.

Mark Johnson Roberts — Deputy General Counsel, “bar liaison” to the Unlawful Practice of Law (UPL) Committee, and recipient of the “hot tip” that the two Linn attorneys had emailed — landed a very difficult-to-execute triple-axel of fail regarding Perry.

It appears that Roberts literally shelved a UPL complaint against Perry. The complaint was correctly submitted to Roberts as liaison to the UPL Committee, then apparently never left his office again. When Roberts was questioned months later about the disappeared complaint, he responded with documents that in my opinion raise more questions than they answer.

Most disturbingly, Roberts was the original recipient of the email by the two attorneys warning the bar that Perry and Moeller were committing criminal offenses and offering to provide information and evidence.

It’s unclear whether the email was discussed and the bar’s response to it coordinated, or whether Roberts took a fashion-forward role in not caring about criminal offenses and simply ignored it by the seat of his pants. What is known is that Roberts assured the concerned attorneys, bizarrely, that destruction of evidence — which in matters of attorney misconduct primarily means client files, i.e. records in the attorney’s custody that are the property of the clients– did not matter, because the OSB already had more than enough evidence for its investigations of Perry.

It would be bad enough if Mark Johnson Roberts were a state bar official who didn’t know any better, but since this is Oregon, Mr. Roberts also frequently writes the “Bar Counsel” ethics column for the OSB’s monthly Bar Bulletin magazine.

Dawn Evans, the Director of Regulatory Services, similarly did not want to hear anything about criminal conduct. In the Polk County case and ensuing complaint, Evans refused to consider or even acknowledge the victim’s concerns that Perry had forged court orders. This was despite the victim providing compelling evidence and the OSB’s now-widespread understanding that Perry was forging items in several other cases.

In early 2018, Assistant Disciplinary Counsel, Susan Cournoyer, who investigated most of Perry’s cases, wrote “complaint summaries” for the first five complaints, which she presented to the State Professional Responsibility Board (SPRB). The SPRB acts similarly to a grand jury in the attorney disciplinary process. Three of Cournoyer’s summaries informed the committee of her confidence that documents in one case were forged, and that Perry had “manufactured a custody evaluation report” in another.

In March 2018, the SPRB authorized that formal charges against Perry be filed. At that point, the DCO was required under their own Bar Rule 3.3(a) to “report the possible crime to the appropriate investigatory authority.”

To date, public records requests with Linn County Sheriff’s and Oregon’s Department of Justice have returned zero evidence that the DCO fulfilled that obligation. Consequently, the Office of the Attorney General has shown little interest in investigating or even hearing about Megan Perry.

Their unconcerned attitude exposes their ideology that nothing is real or true unless they hear it from another lawyer. Perhaps they also suffer from the absurd belief that disbarment equals justice in criminal matters, and that a license to practice law is also a license to commit crimes, revoked only upon disbarment.

So, did all those dogs just suddenly forget what being a being a judge, court officer, attorney, regulatory agency, or prosecutor meant? Did they all just suddenly become apathetic towards criminals or devoid of empathy for their victims? Did they all just decide that “shall” means “if I feel like it?”

No. None of these professionals spontaneously and instantly forgot how to do their job. That would be far too curious. Hence we come back around to “negative facts.”

It remains to be seen just which of the dogs didn’t bark because TREATS! and which didn’t bark because of the other dogs snarling at them. What is totally clear is that many are now personally invested in perpetuating the charade that Perry’s disbarment was the final chapter of the entire, ugly episode, the end, good bye, go away.

And only by continuing that farce — through the willful suppression of integrity, leadership, justice, accountability, and transparency — can Oregon, particularly its legal profession, avoid settling its massive bar tab.

Coming back to Conan Doyle’s story briefly: the worst part of the tale is that the dog’s silence forced the victim, the horse, to handle the terrible situation himself. He did so by delivering a fatal blow to the head of the trainer.

The conclusion to Oregon’s own appalling and far broader mystery saga is unfolding in real time. And while it won’t be as violently decisive as a literal kick to the head, it is just as stunning, and will have the same lasting cognitive effects.

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