712 August 3, 2017 No. 40
IN THE SUPREME COURT OF THE
STATE OF OREGON
In re Complaint as to the Conduct of
JAMES R. KIRCHOFF
OSB No. 081879,
Accused.
(OSB No. 1505, SC S064308)
En Banc
On review of the decision of a trial panel of the Disciplinary
Board, dated June 14, 2016.
Argued and submitted May 11, 2017.
C. Robert Steringer, Harrang Long Gary Rudnick PC,
Portland, argued the cause and filed the briefs for the
Accused.
Susan R. Cournoyer, Assistant Disciplinary Counsel,
Tigard, argued the cause and filed the brief for the Oregon
State Bar.
Before Balmer, Chief Justice, and Kistler, Walters,
Nakamoto, Flynn and Duncan, Justices, and Linder, Senior
Justice pro tempore.*
PER CURIAM
The accused is suspended from the practice of law for a
period of two years, commencing 60 days from the filing of
this decision.
______________
* Landau, J., did not participate in the consideration or decision of this case.
Brewer, J., retired June 30, 2017, and did not participate in the decision of this
case.
Cite as 361 Or 712 (2017) 713
Case Summary: The Oregon State Bar brought a disciplinary action against
the accused lawyer, alleging four violations of the Rules of Professional Conduct,
arising out his submission of a falsified document to a trial court and to the Bar.
A trial panel of the Disciplinary Board found that the accused had committed all
of the charged violations and concluded that the accused should be suspended
from the practice of law for two years. The accused lawyer sought review in the
Supreme Court, arguing that the Bar had failed to prove the charged violations
by clear and convincing evidence. He did not challenge the sanction. Held: On
de novo review, the court concluded that there was clear and convincing evidence
that the accused committed the charged violations of the disciplinary rules.
Because neither party challenged the appropriateness of the sanction, the court
also concluded that a two-year suspension was appropriate.
The accused is suspended from the practice of law for two years, commencing
60 days from the date of this decision.
714 In re Kirchoff
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar charged James R. Kirchoff (the accused) with
multiple violations of the Oregon Rules of Professional
Conduct (RPC), based on his submission of false evidence
to a tribunal. A trial panel of the Disciplinary Board con-
ducted a hearing, found that the accused had violated those
rules, and determined that the appropriate sanction was
suspension from the practice of law for a period of two years.
The accused seeks review of the trial panel’s finding that he
committed the alleged violations. We review the trial panel’s
decision de novo. ORS 9.536(2); Bar Rule of Procedure (BR)
10.6. The Bar has the burden of establishing misconduct by
clear and convincing evidence. BR 5.2. Clear and convincing
evidence is evidence establishing that “the truth of the facts
asserted is highly probable.” In re Ellis / Rosenbaum, 356 Or
691, 693, 344 P3d 425 (2015). For the reasons that follow, we
agree with the trial panel that the Bar presented evidence
establishing the alleged violations under that standard. The
accused does not challenge the sanction imposed by the trial
panel; accordingly, we suspend the accused from the prac-
tice of law for a period of two years.
FACTS
Before March 1, 2014, the accused was a lawyer with
the Grants Pass law firm then known as Sorenson, Ransom,
Ferguson & Kirchoff, LLP. The charges arise out of the
accused’s representation of husband in a marital dissolution
action initiated by his wife. Wife’s lawyer, Claar, had filed a
petition for dissolution on January 10, 2014. On January 13,
husband retained the accused to represent him in the disso-
lution proceeding, and husband signed a retainer agreement
on February 7. The accused did not file an appearance in the
proceeding, nor did he provide written notice to Claar about
his intent to file an appearance.
On February 11, Claar filed an Ex Parte Motion for
Order of Default and Entry of Judgment by Default on wife’s
behalf on the ground that husband had made no appear-
ance in the case before the February 10 deadline. The court
Cite as 361 Or 712 (2017) 715
granted the motion on February 13 and signed a general
judgment of Dissolution of Marriage on February 27.
The accused made his first appearance in the mat-
ter as attorney of record when he filed a Motion to Vacate
Default Judgment on husband’s behalf on March 7. The
accused based his motion on ORCP 69 B(2), which requires
a party to file and serve notice of the intent to apply for an
order of default at least 10 days before applying for the order,
if the opposing party or the party’s counsel has previously
provided written notice of intent to appear. The accused
attached to that motion a declaration in which he stated, “I
provided to counsel for Petitioner written notice of intent to
appear in [this] action on January 29, 2014.” The accused,
however, did not attach as an exhibit to the declaration any
written notice of intent to appear.
On March 12, Claar filed an objection to the motion.
In his supporting affidavit, Claar stated that he first became
aware that the accused was representing husband on
March 7, the day that the accused filed the motion to vacate
the default judgment, and that, although the accused had
informed him that his claimed written notice was by email,
neither Claar nor his staff had been able to locate any such
email in their in-boxes, deleted messages, or spam folders.
Claar further informed the court that both he and his legal
assistant had made several requests to the accused to send
them a copy of the January 29 email but that the accused
had failed to do so.
On March 13, the accused filed a reply to Claar’s
objection, supported by a declaration similar to the one that
he had filed on March 7. That March 13 declaration, how-
ever, attached a four-page document purporting to include
an email that the accused had sent to Claar on Thursday,
January 29, 2014, as evidence of his written notice to Claar.
In that email, the accused mentioned wife’s ex parte motion
to exclude husband from the family home and the possibil-
ity that husband would one day file a similar motion. The
court held a hearing in chambers on the accused’s motion to
vacate. The judge denied the motion to vacate on the ground
that the purported January 29 email did not provide suffi-
cient notice of intent to appear.
716 In re Kirchoff
The accused then filed a Motion for Relief from
Judgment under ORCP 71 B(1), requesting relief from the
default judgment in the dissolution case on the grounds of
mistake, inadvertence, surprise, or excusable neglect. That
motion recited that it was based on the accused’s March 13
declaration, which, as noted, recited that the accused had
notified Claar of his intent to appear in the purported,
attached, January 29 email.
The court held another hearing on the ORCP 71
motion. At that hearing, Claar argued in opposition that
he had the following reasons to believe that the purported
January 29 email had been fabricated: (1) Despite numerous
requests, the accused never produced the purported email
to Claar electronically; (2) the email stream that concludes
with the purported email was about another case involv-
ing Claar, and Claar found on his own computer all emails
in the thread except that last, disputed email; and (3) the
earlier emails in the thread included the signature block
of Sorenson, Ransom, Ferguson & Kirchoff, LLP (where,
as noted, the accused worked until March 1), whereas the
signature block on the purported January 29 email was for
James Holmbeck Kirchoff LLC, the law firm that the accused
joined on March 1, which did not yet exist on January 29,
2014.
The accused responded by asserting that Claar
had had actual knowledge that the accused was represent-
ing husband and, in fact, had had several phone conversa-
tions with him in January about the case. When the judge
pressed the accused on the use of a signature block for a
firm at which he was not then working, the accused asserted
various problems arising out of the transition from one firm
to the other and one email system to another. Claar, for his
part, flatly denied that he had talked to the accused about
the case before March 7.
The court granted the accused’s motion to vacate.
The court declined to make a finding that the email was
fraudulent and asked the accused to find the email in elec-
tronic form and forward it to Claar. The accused never
did so. The parties subsequently settled the dissolution
matter.
Cite as 361 Or 712 (2017) 717
Claar later reported the accused to the Bar. After
receiving the accused’s response, the Bar referred the mat-
ter to Disciplinary Counsel. In response to Disciplinary
Counsel’s request for information, the accused stated that
the purported January 29 email was merely a draft that
he had created to experiment with his signature block in
anticipation of changing law firms, and that he must have
printed it to show his secretary, who eventually mistook it for
a real email and filed it in husband’s file. He also informed
Disciplinary Counsel that he had inadvertently deleted the
draft without sending it to Claar.
A Bar technology expert, Johnson, examined the
purported email and concluded that it had not been sent. As
Johnson later testified before the trial panel, the fact that
the email had not been sent was evident from its format-
ting.1 Additionally, Johnson noticed that January 29 was
not a Thursday as stated in the “sent” field of the purported
email, but instead it was a Wednesday. Based on that incon-
sistency, Johnson testified that he believed that the email
had been “manipulated” because, essentially, the accused’s
computer could not have made that error. As he stated, “I
was at a loss to determine any method by which I could
mis-configure the computer to produce a result like that,
leaving me with the likelihood that the text had actually
been typed by a person rather than generated by the appli-
cation itself.” He did not believe that those two “anomalies”
(the formatting and the day/date errors) could have been the
result of the explanation that the accused had provided to
the Bar initially—that they were the result of having multi-
ple email applications open on his desktop at once.
Additionally, as Johnson later testified, he also
did not believe that the purported January 29 email was
an unsent draft that had been saved and/or printed, as the
accused claimed in his response to the Bar’s inquiry. That
was so because there was a “sent” field, and a date appeared
in the “sent” field. According to Johnson, if, as the accused
1
Specifically, in various respects, the From/Sent/To/Subject header on the
January 29 email was not formatted in the way it would be on a sent email in
Outlook, the email program that the accused was using. Rather, that part of the
email was formatted like an email that would appear earlier in an email thread
(like one being replied to or forwarded).
718 In re Kirchoff
had represented to the Bar and later testified before the trial
panel, the document was actually a draft that had never
been sent, the printed document would not have displayed
a four-line From/Sent/To/Subject header. Instead, it would
have displayed a header with only two lines: To and Subject.
Moreover, that two-line header would have been formatted
like a sent email and not like an email that appears earlier
in an email thread. And most importantly, there would not
have been a “sent” field with a date at all, because, as the
accused admitted, the purported January 29 email had not
been sent.
Based on its investigation, including Johnson’s
analysis, the Bar charged the accused with violating RPC
3.3(a)(1) (making a false statement of fact or law to a tri-
bunal or failing to correct a false statement of material
fact or law previously made to the tribunal by the lawyer);
RPC 3.4(b) (falsifying evidence); RPC 8.4(a)(3) (engaging
in conduct involving dishonesty, fraud, deceit, or misrepre-
sentation that reflects adversely on the lawyer’s fitness to
practice law); and RPC 8.1(a)(1) (knowingly making a false
statement of material fact in connection with a disciplinary
matter).
At a subsequent hearing before the trial panel,
the Bar called Johnson to testify about the anomalies in
the purported January 29 email, and it called Claar, who
testified, among other things, that he had had no conver-
sation with the accused about the dissolution matter and
that he did not know that the accused had been retained
by husband until after he had filed for a default judgment
in that action. Claar testified that he had not been notified
in any way—by in-person conversation, email, fax, or phone
call—that the accused was representing husband until the
accused emailed him early in the morning on March 7 (the
day that the accused filed the motion to vacate the default
judgment) and asked him to agree to the vacation.
The accused testified on his own behalf at the hear-
ing before the trial panel. As for the purported January 29
email, to explain how it, and, specifically, the erroneous sig-
nature block, came to exist, the accused testified that the
Cite as 361 Or 712 (2017) 719
“only thing I could imagine is that I typed [the signature
block] in, there were different iterations of it that came
about over time. And I typed this into a draft, an opened
draft in Outlook. And not draft in the sense that it’s in the
draft folder, just a—just a document that’s opened.
“So if I—you click ‘open an e-mail,’ or you click on ‘new
e-mail,’ I would call that a draft; not the actual draft folder.
But it opened up, and I type in. And this is how I would
design the signature block. I would actually put it into that,
over the top of the old one. That’s the only, the only thing I
could think of. There’s no other reason why it would be in
there.”
Among other witnesses, the accused also called his own
technology expert, Englen, to testify on his behalf. Englen
testified, as Johnson (the Bar’s technology expert) had, that
the purported January 29 email had not been sent—for all
of the same formatting-related reasons that Johnson had
identified. Additionally, Englen testified that the formatting
of the purported January 29 email was likely created by
altering a previously sent email. That is, he testified that
the purported January 29 email was “a draft that used a
previous email as a format.”
Regarding what he called the “glitches” in the pur-
ported email, Englen testified that Outlook is error-prone
and has had problems with date/day of the week discrep-
ancies in sent emails, which he had observed in sent emails
several times in his career over the past 15 years. Englen
was not asked whether a “draft” email would have a “sent”
field, why a “draft” email would show a date in the “sent”
field, or how day/date discrepancies in sent emails could
occur in a “draft” email that never was sent or even saved
to a draft folder. Notably, Englen testified that a document
like the purported January 29 email would be easy to fab-
ricate and that he had no personal knowledge whether the
purported January 29 email was actually a draft or a fabri-
cated document. When a trial panel member asked Englen
whether, in his opinion, the purported January 29 email
could have been fabricated intentionally, Englen responded,
“Completely, yeah, absolutely. * * * No doubt, this could be
completely totally made up.”
720 In re Kirchoff
The trial panel found that the accused, to convince
the court to set aside the default judgment, knowingly fal-
sified the purported January 29 email and knowingly made
misrepresentations to the court regarding the purported
email. As an initial matter, the trial panel found, based on
the testimony of both the Bar’s and the accused’s experts,
that the purported January 29 email had not been sent. For
that reason, the trial panel found that the accused falsely
represented to the trial court that he had given written
notice of his intent to appear in the dissolution matter.
Next, for three reasons, the trial panel found that
the accused knowingly falsified the purported January 29
email and that the accused’s testimony that the email was a
draft that was printed and inadvertently filed was not cred-
ible. First, as the Bar’s expert testified, a draft email would
not have been formatted as it appeared in the purported
January 29 email, it would not have had a date in a “sent”
line, and, in fact, it would not have had a “sent” line at all.
Second, the trial panel found that the fact that the purported
January 29 email listed the date as “Thursday, January 29,
2014,” when that date actually was a Wednesday supported
the conclusion that the purported January 29 email was
fabricated. The trial panel noted that the accused’s expert,
Englen, testified that anomalies like that can occur at the
server level in a sent email, but he also testified that the pur-
ported January 29 email had not been sent. That testimony
led the trial panel to conclude that date in the “sent” field
had been manipulated by the accused, and, in his haste, he
erroneously entered the incorrect day of the week. Third,
the trial panel noted that the purported January 29 email
used the incorrect signature block. The trial panel deemed
it unlikely that all of the “anomalies” in the purported email
would have occurred without human intervention.
In addition to that factual evidence, the trial panel
found two other items of circumstantial evidence pointing
to the conclusion that the accused falsified the purported
January 29 email. First, the accused did not attach the pur-
ported January 29 email to his motion to set aside the judg-
ment. And second, although the accused testified that, in
phone calls that the accused claimed took place in January
Cite as 361 Or 712 (2017) 721
2014, he and Claar essentially settled the case and that he
had had no further conversation with Claar about the case
until March 7, the accused conceded that the purported
January 29 email was not about settlement. For those rea-
sons, the trial panel found that the accused’s testimony
regarding his communication with Claar was not credible.
Ultimately, the trial panel concluded that there was
clear and convincing evidence that the accused falsified the
purported January 29, 2014, email and that the accused
printed that document and submitted it to the court, to
counsel, to the Bar, and to the trial panel, when he knew or
should have known that that document did not exist, digi-
tally, on paper, or in any form on the date that he testified
that he sent it.
On review, the accused argues that an examination
of the entire record reveals that the Bar did not prove by
clear and convincing evidence that he committed the alleged
violations. That is, he argues, under the “clear and convinc-
ing evidence” standard, the Bar was required to, but did not,
prove that it is “highly probably” that he fabricated the pur-
ported January 29 email. Rather, he argues, it is far more
probable that that document was just what the accused now
says it was: the hard copy of a draft email that the accused
wrote but never sent, which was mistakenly placed in hus-
band’s client file.
Having reviewed de novo all the evidence in this
case, which we have summarized above, we agree with the
trial panel and conclude that there is clear and convincing
evidence that the accused violated RPC 3.3(a)(1) (making
a false statement of fact or law to a tribunal or failing to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer); RPC 3.4(b) (falsifying
evidence); RPC 8.4(a)(3) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation that reflects
adversely on the lawyer’s fitness to practice law); and RPC
8.1(a)(1) (knowingly making a false statement of material
fact in connection with a disciplinary matter). Further rec-
itation of the factual bases for our independent conclusion
would not benefit the bench, the Bar, or the public. Because,
as noted, neither party has challenged the appropriateness
722 In re Kirchoff
of the sanction, we also conclude that a two-year suspension
is appropriate.
The accused is suspended from the practice of law
for a period of two years, commencing 60 days from the fil-
ing of this decision.