Ethics: Oregon Supreme Court Holds that Ex-Parte Contact with Arbitrator Doesn't Violate (Web)

In a rare decision involving a disciplinary proceeding arising out of arbitration conduct, the Oregon Supreme Court held that an attorney did not violate Oregon Code of Professional Responsibility Disciplinary Rule DR-7-110(B) by contacting an arbitrator ex parte to inquire whether he had a speaker phone, and what his policy was on telephone testimony.

The Court also held that the attorney didn’t violate DR-1-102 (A)(3) by later representing to his adversary that he intended to present telephone testimony and had "cleared" it with the arbitrator. In re Complaint as to the Conduct of Merkel, S52856, 2006 Ore. LEXIS 706 (July 7, 2006)(available at http://www.publications.ojd.state.or.us/S52856.htm).

Before the arbitration hearing, the accused attorney had subpoenaed two witnesses who indicated that they would not come, but could testify by telephone. The accused called the arbitrator, asked if he had a speaker phone, and was told, according to the opinion, “it's okay with me if it's ok with [opposing counsel]."

That same morning the attorney sent to his adversary a letter that stated:

I have contact telephone numbers for each of these witnesses and intend to present their testimony by speaker phone. I have cleared this with the arbitrator who asked me in turn to advise you of these developments. Please call if there are questions.

After the adversary objected, the arbitrator ruled that he would not accept telephone testimony and postponed the hearing.

The adversary filed a disciplinary complaint with the Oregon State Bar, which prosecutes the state’s attorney discipline cases. The complaint alleged a violation of DR-7-110(B), which prohibits ex parte contact on the merits with an official before whom a proceeding is pending.

The complaint also charged that the attorney violated DR-1-102(A)(3), prohibiting dishonest conduct, for his misrepresentation that he had "cleared" the telephone testimony with the arbitrator.

The State Bar’s investigators initially found insufficient evidence of misconduct. The adversary appealed to the State Bar’s general counsel, and added a third allegation that the accused had misrepresented before the State Bar that he had tried to call her. After the general counsel review and referral to disciplinary counsel, the attorney was accused of three violations.

A trial panel determined that there had been no ex parte communication that violated DR7-110(B) but imposed sanctions for the two DR1-102(A)(3) violations.

The Supreme Court, in a per curiam opinion, agreed with the State Bar that the telephone conversation with the arbitrator was not on the merits and therefore did not violate DR-7-110(B).

After lengthy analysis of the two misrepresentation allegations, the Court found that the term "cleared" was ambiguous, and therefore, the letter did not rise to the level of misconduct.

On the second charge, the Court found while the trial panel ruled that the accused attorney had not called his adversary based on telephone logs, the Court could not sustain the charge because the evidence also showed that the attorney could have called and reached a voicemail system which the logs would not have captured. Moreover, the accused had stated subsequently that he could have been remembering another call.

The Supreme Court dismissed the complaint.

Justice Rives Kistler dissented as to the finding regarding the letter. Kistler, who was joined by Justices Thomas A. Balmer and W. Michael Gillette, noted that "cleared" implied an approval that had never been given.

–Helena Tavares Erickson,
CPR Senior Vice-President, Committees, Research & Education