S058271, Opinion — In re Hartfield

108
Submitted on record and under advisement August 6, accused
publicly reprimanded September 23, 2010
In re Complaint as to the Conduct of
SEAN L. HARTFIELD,
Accused.
(OSB No. 08-42; SC 8058271)
239P3d992

Cite as 349 Or 108 	109
CJS, Attorney and Client§ 76.
En Banc
On review of the decision of the trial panel of the Disciplinary
Board.*
Linn D. Davis, Assistant Disciplinary Counsel, Tigard,
filed the brief for the Oregon State Bar.
No appearance contra.
PERCURIAM
The accused is publicly reprimanded.
* Trial Panel Opinion, December 23, 2009.

110 	In re Hartfield
PERCURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar charged Sean L. Hartfield (the accused) with vio-
lating three provisions of the Oregon Rules of Professional
Conduct (RPC). A trial panel of the Disciplinary Board con-
cluded that the accused had violated RPC 8.4(a)(4), which
makes it professional misconduct for a lawyer to "engage in
conduct that is prejudicial to the administration of justice,"
dismissed the other two charges, and publicly reprimanded
the accused. 1 The accused timely requested review but failed
to file an opening brief with this court. The Bar petitioned for
review and filed a brief, but waived oral argument. We have
considered this matter on the record before the trial panel
and on the Bar's brief filed with this court. ORAP ll.25(3)(a).
On de novo review, ORS 9.536(2); Bar Rule of Procedure (BR)
10.6, we conclude that the accused violated RPC 8.4(a)(4). We
publicly reprimand the accused.
Before turning to our discussion of the issues on
review, we draw attention to certain aspects of this case that
bear on this court's procedure on review in this and similar
cases. As noted, the accused timely requested that this court
review the decision of the trial panel pursuant to ORS
9.536(1). That statute provides, in part:
"The Oregon State Bar or the accused may seek review of
the [disciplinary board's] decision by the Supreme Court.
Such review shall be a matter of right upon the request of
either party."
The accused, however, filed no opening brief, as
required by ORAP 11.25(2)(a) and BR 10.5(c), and thus pro-
vided the court with no argument or explanation concerning
any objection to or dissatisfaction with the trial panel's deci-
sion. Had the briefing remained in that posture, the court
would have considered the matter de nova, as required by
ORS 9.536(2), which provides:
"When a matter is before the Supreme Court for review,
the court shall consider the matter de novo and may adopt,
1 Because the Bar does not seek review of the dismissal of the other two
charges, we do not discuss them in this opinion.

Cite as 349 Or 108
modify or reject the decision of the disciplinary board in
whole or in part and thereupon enter an appropriate order."
However, the court would have been free to circumscribe the
extent of its review due to the absence of briefing or argumen-
tation challenging the order on review. As this court observed
in a similar case involving unfocused claims of trial panel
error, "[a]lthough our standard of review remains de nova
(ORS 9.536(2)), ordinarily we will consider the issues for our
review to be those framed by the parties' briefs and argu-
ments." In re Paulson, 346 Or 676, 679 n 3, 216 P3d 859
(2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41
(2010).
The Bar also exercised its right under ORS 9.536(1)
to request review of the trial panel decision by this court. The
Bar may have believed that it was compelled to do so by BR
10.5(b), which requires the accused to file the petition if the
trial panel order finds the accused guilty of misconduct, and
also provides that "otherwise, the Bar shall file the petition."
As already noted, although the trial panel order made a find-
ing of misconduct against the accused, it also dismissed two
of the Bar's charges of misconduct. The dismissal of those two
charges may have led the Bar to conclude that it was obli-
gated by BR 10.5(b) to file the petition. The Bar's brief, how-
ever, raised no challenge to the dismissal of the other two
charges. Instead, the Bar argued that this court on review
should affirm the trial panel's finding of misconduct and
sanction in all respects.
The Bar may request review by this court of a trial
panel decision even if, as here, the Bar is satisfied with the
trial panel's decision in all respects. However, this court's
rules permit the Bar to obtain that result by following a more
efficient procedural path than petitioning for review and sub-
mitting full briefing on the case. We take this opportunity to
draw attention to those rules to promote greater efficiency in
the administration of similar disciplinary cases in the future.
ORAP 11.25(3), like BR 10.5(b), discusses the Bar's
procedures for petitioning for review by this court when the
accused fails to file a petition and brief in Bar discipline
cases. However, ORAP 11.25(3) applies "notwithstanding BR
10.5(b)"; that is, this court's rule provides an alternative to

In re Hartfield
the full briefing route that appears in BR 10.5. ORAP
11.25(3) provides:
"If, notwithstanding BR 10.5(b), an accused who is
required to file a petition and brief fails to do so within the
time allowed under BR 10.5(a), the Bar shall:
"(a) 	File a petition and brief within the time allowed
for filing an answering brief. The brief shall comply with
the rules governing petitions and opening briefs. At the
time the petition and brief are filed, the Bar shall indicate
whether it wishes to waive oral argument and submit the
case on the record, or
"(b) 	Submit a letter stating that it wishes the matter
submitted to the court on the record without briefing or oral
argument. Notwithstanding waiver of briefing and oral
argument under this paragraph, at the direction of the
Supreme Court, the Bar shall file a petition and brief
within the time directed by the court."
(Emphases added.)
ORAP 11.25(3) entitles the Bar, in cases like the pres-
ent one, to elect to submit a letter requesting submission of the
case to the court without briefing or oral argument. If the
accused has filed no petition or brief challenging some aspect
of the trial panel's order, and the Bar has elected the submis-
sion procedure set out in ORAP ll.25(3)(b), this court, follow-
ing the review principle set out in Paulson, generally will
determine that the parties have raised no argument challeng-
ing the trial panel order and conclude that the order should be
affirmed. As noted, the Bar is entitled to employ the alterna-
tive procedure set out in ORAP ll.25(3)(b) notwithstanding
any provision in BR 10.5(b). Having clarified the procedures
that govern review by this court in this and similar cases, we
tum to a discussion of the issues in this case.
From 2002 until the latter part of 2008, the accused
was in private practice at a law office in Northeast Portland.
The accused first represented Myrtle Nickerson in 2003
when he handled the probate of her sister's estate. The next
year, the accused began to advise Ms. Nickerson about mat-
ters relating to the declining mental capacity of her husband,
Nathan Nickerson. In March 2005, after Ms. Nickerson's
husband had been admitted into an Alzheimer's care facility,

Cite as 349 Or 108 (2010) 	113
Ms. 	Nickerson, 	the 	couple's financial 	planner, 	and 	the
accused discussed setting up a 	conservatorship so that
Ms. Nickerson could authorize required minimum distribu-
tions from her husband's retirement accounts. Federal law
required Ms. Nickerson's husband to make the distributions
annually in order to avoid federal tax penalties. The accused
agreed to handle the conservatorship pro bono.
On March 31, 2006, the accused filed a petition in
Multnomah County Circuit Court for the appointment of
Ms. Nickerson as conservator for her husband. 2 On June 2,
the court entered a limitedjudgment appointing Ms. Nickerson
temporary conservator for her husband for the sole and lim-
ited purpose of distributing and transferring his retirement
accounts. The accused later filed an amended petition for con-
servatorship; in an attached affidavit, he averred that the
conservatorship should not terminate because of the need to
make the required minimum distributions annually. Based
on that information, the court issued an amended limited
judgment on October 2, 2006, that did not place scope or
duration restraints on the conservatorship.
Under ORS 125.470(1), a conservator must file an
inventory of the protected person's assets within 90 days
after of the date of the appointment as conservator. When the
accused failed to file an inventory on Ms. Nickerson's behalf,
the court issued a show cause order requiring the accused to
appear on March 7, 2007. The accused failed to appear on
that date. The trial court called the accused and told him to
appear the next day. The accused appeared and explained
that Ms. Nickerson's husband had recently passed away.
The trial court continued the show cause order to April 3,
and ordered the accused to file an inventory and a final
accounting. See ORS 125.475(1)(a) (conservator shall file an
1 Initially, the accused failed to provide an affidavit of personal service on
Ms. Nickerson's husband and failed to serve him via a disinterested third party.
See ORS 125.065(1) (providing that notice of the filing of the conservatorship peti-
tion must be personally served on the protected person); ORCP 7 E (requiring serv-
ice by a disinterested third party). The court issued two notices of deficiency and
the accused timely corrected his errors. We determine that those errors do not tend
to prove that the accused violated RPC 8.4(a)(4). Cf In re Paulson, 341Or13, 27,
136 P3d 1087 (2006) ("[N]ot every negligent or unprofessional act* * *gives rise to
an ethical violation[.]").

114 	In re Hartfield
accounting of the administration of the conservatorship
estate within 60 days after the death of the protected person).
The accused subsequently called the trial court to
request a set-over of the show cause hearing to April 30,
2007. The trial court granted the request, but orally directed
the accused to file a letter with the court acknowledging the
set-over. The accused failed to file the letter as directed and
also failed to appear on April 30. As a result, the trial court
issued an order requiring the accused to appear on May 8 and
show cause why he should not be held in contempt. The court
mailed the order to the accused's office. After the accused
failed to appear on May 8, the trial court removed the accused
from the matter, removed Ms. Nickerson as conservator, and
appointed another attorney as successor conservator. That
attorney filed an inventory and final accounting less than
60 	days 	after his appointment as conservator. 	He also
requested $2,530 in attorney fees for his administration of
the conservatorship.
The trial court judge wrote a letter to the Bar out-
lining her concerns about the accused's handling of the
Nickerson conservatorship matter. Subsequently, the Bar
filed a formal complaint against the accused. At the discipli-
nary hearing, the accused acknowledged that he had failed to
appear in court as directed on March 7 and April 30, 2007. He
testified that he did not remember the court's direction to file
a letter acknowledging the set-over date, and that he had not
received the contempt order. 3 The accused testified that he
knew that he was supposed to file the inventory and the final
accounting, but that he did not do so because he had concerns
about 	the 	accuracy 	of 	the 	financial 	information 	that
Ms. Nickerson and her financial advisor had provided to him.
The accused explained that he "didn't want any questions
from the court" that might have required him to explain why
he had not filed the inventory and accounting.
The trial panel concluded that the accused had
"engage[d] in conduct that is prejudicial to the administra-
tion of justice," in violation of RPC 8.4(a)(4) because his
3 We need not resolve the factual disputes inherent in the accused's version of
the facts to decide this case.

Cite as 349 Or 108 (2010) 	115
failure to comply with the court's orders delayed the court's
ability to resolve the Nickerson conservatorship. For the
reasons that follow, we agree that the Bar has proved, by
clear and convincing evidence, that the accused violated RPC
8.4(a)(4). 4
To establish a violation of RPC 8.4(a), the Bar must
prove that
"(1) the lawyer engaged in 'conduct,' that is, the lawyer did
something that he or she should not have done or failed to
do something that the lawyer should have done; (2) the con-
duct occurred during the 'administration of justice,' that is,
during the course of a judicial proceeding or another pro-
ceeding that was analogous to a judicial proceeding; and
(3) the lawyer's conduct resulted in 'prejudice,' either to the
functioning of the proceeding or to a party's substantive
interests in the proceeding."
In re Skagen, 342 Or 183, 213, 149 P3d 1171 (2006) (citations
omitted) (standard under identically worded former DR 1-
102(A)(4)); Paulson, 346 Or at 683, 683 n 5 (adopting that
standard for RPC 8.4(a)(4)). A lawyer's conduct is prejudicial
if "the lawyer engaged either in repeated acts causing some
harm to the administration of justice or a single act that
caused substantial harm to the administration of justice."
Skagen, 342 Or at 214 (citations omitted).
In In re Gresham, 318 Or 162, 864 P2d 360 (1993),
the court detailed how a lawyer's inaction can prejudice the
functioning of a judicial proceeding. In that case, after filing a
petition to probate a will, the lawyer failed to timely close the
estate and did not respond to multiple inquiries from the trial
court. The court in Gresham explained that, by delaying the
transfer of assets to his client and placing an "unnecessary
burden on the judicial system," the lawyer's inaction preju-
diced the administration of justice. Id. at 168; see also In re
Jackson, 347 Or 426, 437, 223 P3d 387 (2009) (lawyer vio-
lated RPC 8.4(a)(4) when his unpreparedness at a settlement
conference and repeated failure to respond to the arbitrator
Although the accused began representing Ms. Nickerson in 2003, the conduct
at issue on review occurred after January 1, 2005, the effective date of the Oregon
Rules of Professional Conduct; therefore, those rules apply here.

116 	In re Hartfield
"unnecessarily expend[ed] the time of the arbitrator and his
staff').
With those standards in mind, 	we turn to the
accused's conduct in the Nickerson conservatorship. By fail-
ing repeatedly to appear in court for scheduled hearings, and
by failing to file an inventory or an accounting, the accused
unreasonably prolonged the conservatorship proceeding. As
in Gresham, the accused's inaction created an unnecessary
burden on court resources. At the trial panel hearing, the
trial 	court judge testified that the 	accused's failure 	to
advance the conservatorship proceedings affected the court's
procedural efficiency and impaired the court's ability to
supervise the conservatorship and protect Mr. Nickerson. In
addition, the accused's inaction harmed the substantive
interests of his client and her husband. Because of the
accused's continued failure to file an inventory and final
accounting, the court removed Ms. Nickerson as conservator
and the accused as attorney. As a result, the conservatorship
estate incurred unexpected attorney fees. We conclude that
the accused's cumulative inaction during the course of the
conservatorship proceeding prejudiced the administration of
justice.
Having concluded that the accused violated RPC
8.4(a)(4), we must determine the appropriate sanction. The
trial panel issued a public reprimand and the Bar does not
argue that any greater sanction is warranted. Because we
find that the accused has violated a disciplinary rule, a public
reprimand is the minimum sanction that we can impose. In
re Newell, 348 Or 396, 413, 234 P3d 967 (2010) (explaining
that, under BR 6. l(a), a public reprimand is the minimum
sanction that a court can impose on a lawyer who has vio-
lated a disciplinary rule). We conclude that a public repri-
mand is consistent with the American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended
1992) and Oregon case law. 5
The accused is publicly reprimanded.
In light of this case's procedural posture, an in-depth analysis of our basis for
imposing a public reprimand would not benefit the bench, the bar, or the public.