S057898, Opinion — In re Groom

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In re Complaint as to the Conduct of
DAVID E. GROOM,
Accused.
(OSB 08-105; SC S057898)
249 P3d 976

On direct review in the Supreme Court, the accused challenged the dis-
ciplinary panel of the Oregon State Bar's conclusion that he violated Rule of
Professional Conduct (RPC) 1.4 and its imposition of a four-month suspension. The
Bar alleged that the accused violated RPC 1.4, which imposes a duty to reasonably
communicate with a client when he agreed to consider filing a motion to vacate a
judgment of dismissal in his client's habeas corpus case at the request of his client's
lawyer in a related civil rights case, and then did not reasonably inform the lawyer
or his client that he would not file the motion. Held: The Bar did not prove a viola-
tion of RPC 1.4 by clear and convincing evidence.

The complaint against the accused is dismissed.

On review of the decision of a trial panel of the Disciplinary
Board.

Wayne Mackeson, Portland, argued the cause and filed
the briefs for accused. With him on the briefs was Kelly
Jaske, Portland.

Mary A. Cooper, Assistant Disciplinary Counsel, Oregon
State Bar, argued the cause and filed the brief for the Oregon
State Bar.

Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices .*

PER CURIAM

The complaint against the accused is dismissed.

\* Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

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# PER CURIAM

In this lawyer discipline case, the Bar charged the
accused with violating Rule of Professional Conduct (RPC)
1.4, which requires that a lawyer keep a client reasonably
informed and explain a matter to a client to the extent
reasonably necessary to permit the client to make informed
decisions.1 We conclude that the Bar did not prove that
charge by clear and convincing evidence, and we hold that
the accused is not guilty of that charge and related charges
brought by the Bar and decided by the trial panel.2

The charges against the accused arose from the
accused's representation of Richard Eugene Evett (Evett) in
the appeal of a circuit court judgment dismissing Evett's peti-
tion for a writ of habeas corpus. The Bar alleged that Evett
asked the accused to file a motion to vacate that judgment of
dismissal and that, although the accused agreed to consider
doing so, he neither acted nor informed Evett of his decision
not to act. In support of those charges, the Bar proved the
facts that follow. Except as otherwise indicated, those facts
are uncontested.

Evett was on probation for committing federal
crimes when he was arrested on charges of committing addi-
tional Oregon crimes. As a result, the federal court revoked
Evett's probation and sentenced him to two years in federal

1 RPC 1.4 provides:

"(a) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information

"(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation."

2 The Bar also charged the accused with violating RPC 8.4(a)(3) (lawyer may
not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
The trial panel concluded that the Bar failed to prove that charge by clear and con-
vincing evidence, and the Bar does not challenge that conclusion. We choose to
accept that decision of the trial panel without further discussion. See In re
Hartfield, 349 Or 108, 111, 239 P3d 992 (2010) (" '[O]rdinarily we will consider the
issues for our review to be those framed by the parties' briefs and arguments.'"
(quoting In re Paulson, 346 Or 676, 679 n 3, 216 P3d 859 (2009), adh'd to as modi-
fied on recons, 347 Or 529, 225 P3d 41 (2010)).

Although the Bar did not charge the accused with violating RPC 1.2(a) (lawyer
must abide by client's decisions), the trial panel decided, sua sponte, that he did so.
The Bar concedes that the trial panel erred in reaching that conclusion and we
accept its concession. See ORS 9.534(2) (accused entitled to written notice of
charges and opportunity to defend against charges).

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prison in Arizona. Evett also was convicted in state court and
sentenced to 13 months of incarceration to be served after
completion of the federal sentence. To ensure that Evett
would return to Oregon to serve that sentence, the state
lodged a detainer against him. However, some time later, the
state withdrew the detainer and instead issued a warrant for
Evett's arrest.

Evett was released from federal prison in March
2003. Approximately two years later, Evett was arrested in
California on the Oregon warrant and, after waiving extra-
dition from California, was returned to Oregon. In March
2005, Evett began to serve his 13-month sentence at Snake
River Correctional Institute (SRCI).

On May 13, 2005, Evett filed a petition for a writ of
habeas corpus in Oregon circuit court, and Charles Simmons
was appointed to represent him. In his petition, Evett,
through Simmons, alleged that he was unlawfully impris-
oned because, among other things, Oregon had lost jurisdic-
tion over him when it withdrew the detainer and then
delayed execution of the arrest warrant. The circuit court,
which we will refer to as the habeas court, granted the state's
motion to dismiss Evett's petition and entered judgment in
its favor.3 Evett appealed that judgment, which we will refer
to as the habeas judgment, to the Oregon Court of Appeals.

On October 17, 2005, the accused was appointed to
represent Evett in his appeal of the habeas judgment. Evett
had already served approximately eight months of his
13-month sentence, and the accused warned him that if he
was released from state custody before the appeal was
decided, the appeal could become moot and the state could
seek its dismissal.

Unbeknownst to the accused, while Evett was pur-
suing his habeas appeal, Evett also was pursuing a parallel
civil action seeking money damages for unlawful imprison-
ment at SRCI. Simmons, the attorney who had represented
Evett in bringing the habeas petition, represented Evett in
that civil action.

3 Nothing in the record reveals the trial court's reasons for granting the state's
motion.

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Simmons was concerned about the effect that the
habeas judgment could have on the civil action because, to be
successful in the civil action, Evett had to prove that his
imprisonment at SRCI was unlawful.4 However, in dismiss-
ing the habeas petition, the habeas court apparently had
decided to the contrary-that Evett's imprisonment at SRCI
was lawful. Simmons understood that the court in the civil
action could decide, applying the rule of issue preclusion, that
the decision of the habeas court was binding on it and could
not be relitigated. If Evett's appeal of the habeas judgment
were successful, the habeas judgment would be reversed and
would no longer serve as a potential bar to Evett's civil action.
If, however, Evett's appeal were dismissed as moot, the
habeas judgment would stand, potentially precluding Evett's
claim for money damages. Simmons researched the legal
issue and learned of a possible solution to that perceived
dilemma. In particular, Simmons learned that if Evett were
precluded from pursuing his appeal because it was moot,
Evett could seek to have the Court of Appeals vacate the
habeas judgment on equitable grounds.

When Evett was released from post-prison supervi-
sion on March 23, 2007, Simmons anticipated that the state
would file a motion to dismiss the habeas appeal; he therefore
contacted the accused to seek his help in obtaining vacatur of
the habeas judgment. Simmons initially telephoned the
accused and then followed up by e-mail on April 24, writing:

"Thank you for discussing this case with me the other
day. As you probably know, I am currently representing
Mr. Evett in a civil rights action arising out of the same
facts as the habeas corpus appeal in which you are cur-
rently representing him.

4 For the most part, Evett's allegations in his civil action duplicated those in
the habeas case. In his civil action, Evett alleged that Oregon had lost jurisdiction
over him when it withdrew the detainer and was equitably estopped from enforcing
its sentence when it failed to arrest Evett until approximately two years after his
release from federal custody. In the civil action, Evett asserted one claim that he
had not pressed in the habeas case. Evett alleged that the state had miscalculated
the amount of time that he was required to serve at SRCI when it failed to credit
Evett for the time that he already had served in the Douglas County Jail while
awaiting trial for the state charges. Therefore, Evett argued, the state had held
him in prison beyond the term permitted by his sentence.

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"It would be helpful if, when DOJ moves to dismiss the
appeal as moot, you would request that the Court of
Appeals vacate the trial court's decision, based on Kerr v.
Bradbury, 340 Or. 241, 131 P.3d 737, adhered to on recons,
341 Or. 200, 140 P.3d 1131 (2006), City of Eugene v. State,
PERB, 341 Or. 120, 137 P.3d 1288 (2006), PGE v. IBEW
Local 125, 209 Or. App. 77, 146 P.3d 333 (2006), and Arizonans
for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055,
137 L.Ed.2d 170 (1997). I think there is a good argument to
be made under those cases that, because the mootness was
not due to any voluntary action by Mr. Evett, but was
rather the result of the inevitable expiration of the
post-prison supervision term due to the delays normally
inherent in litigation, it would be inequitable to require
Mr. Evett to be subjected to issue preclusion based on an
unreviewed and likely erroneous trial court decision. While
this might not make a difference in the habeas corpus case,
it is very important to the civil litigation."

A few days later, on April 26, the state filed a motion to dis-
miss the habeas appeal on the grounds that it had become
moot. The deadline for response to that motion was May 10.
ORAP 7.05(3) (14-day period for response to motion).

On May 1, 2007, the accused informed Simmons, by
e-mail, of the state's motion and that he was considering
what response, if any, to make:

"Charles-the motion from the state to dismiss for moot-
ness has just arrived and I am considering what response I
might make. I will try to file against this motion, but I fear
that the court will rule that habeas relief is a jurisdictional
issue, and that his release from any form of custody
removes their jurisdiction. I'll keep you posted when I
respond."5

To consider what response he might make, the
accused examined the authorities that Simmons had pro-
vided and discussed the issue with his colleagues. The

6 Simmons testified that he did not receive that e-mail, however Simmons also
testified that he had moved from his law office on that day and, that, as a result, the
e-mail address that he had been using and to which the accused had addressed his
correspondence was no longer available to him. Given Simmons's testimony, the
Bar does not claim that the accused did not send the May 1, 2007, e-mail.

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accused determined that Evett had no legal basis for contest-
ing the state's motion to dismiss; the appeal was unquestion-
ably moot. The accused therefore believed that a request for
vacatur of the habeas judgment should not be made in oppo-
sition to the state's motion but, instead, should be made after
the Court of Appeals had ruled on that motion. In the
accused's opinion, it would be procedurally appropriate to
seek an order of vacatur after entry of an order allowing the
motion to dismiss but before the issuance of the appellate
judgment, at which time the Court of Appeals would lose
jurisdiction. See ORS 19.270(6) (Court of Appeals has juris-
diction until appellate judgment issues). The accused did not
file a response to the motion to dismiss, nor did the accused
inform Simmons or Evett of his thinking.

On June 5, 2007, after the time for responding to the
motion to dismiss had elapsed, Simmons sent the following
e-mail to the accused:

"Has the Court of Appeals made any ruling on the motion to
dismiss the appeal as moot? Attached is the part of my
argument from the civil cases that addresses the issue of
vacation of the trial court's decision when the case becomes
moot on appeal. I thought this might be of some use to you."

On June 7, 2007, the accused responded, also by e-mail:

"No ruling yet. Thanks for the attachment, I'm in the proc-
ess of seeing what I can use."

(Emphasis added.) Thus, as of June 7, both Simmons and the
accused were aware, or should have been aware, that the
time for filing a response to the motion to dismiss had elapsed
and that the accused was still "in the process" of thinking
about what action he could take.

Simmons claims that he had the following telephone
conversation with the accused a week or two later, in mid to
late June:

"My best recollection of the conversation is I called him up.
I said, 'Hi. Remember me? I'm representing Mr. Evett in a
civil case. Did you get my e-mail?' 'Yes, I got your e-mail.'
'Did you go ahead and file the response like we had talked

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about?' Mr. Groom said, 'Yes.' I said, 'Thank you.' That was
the end of the conversation."

The accused denies that any such conversation took place.6

In the meantime, the defendants in the civil case had
filed a motion for summary judgment arguing, in part, that
the habeas judgment precluded relitigation of the lawfulness
of Evett's confinement at SRCI. Simmons filed a response on
June 15, 2007, and argued that "strong equitable and practi-
cal considerations counsel[ ] against application of claim and
issue preclusion." Simmons also argued that Evett was seek-
ing vacation or reversal of the habeas judgment, which would
nullify its preclusive effect, and suggested that the circuit
court defer ruling on the defendants' motion for summary
judgment until the Court of Appeals acted. The circuit court
took the parties' arguments under advisement.

On July 9, 2007, the Court of Appeals entered an
order dismissing Evett's habeas appeal as moot. The deadline
for filing a petition for reconsideration of that decision was
July 23. ORAP 6.25(2) (petition for reconsideration must be
filed within 14 days of decision). On July 17, Simmons sent
the accused an e-mail request for a status report. In an e-mail
response dated July 18, the accused told Simmons that the
Court of Appeals had ordered dismissal and promised to fax
Simmons a copy of that order. When the order did not arrive,
Simmons reminded the accused of his promise and the
accused both faxed and mailed a copy of the order that same
day-July 26.

Simmons was out of town and did not receive the
copy of the order of dismissal that the accused had sent until
on or about August 2, 2007. Once he read it, Simmons sur-
mised that the accused had not filed a motion to vacate and
immediately called the accused to inquire. The accused
informed Simmons that, indeed, he had not filed a motion to
vacate and had not done so because he did not believe that
such a motion would have merit.

6 Because we accept the trial panel's conclusion that the Bar did not prove its
charge that the accused was guilty of dishonesty, fraud, or deceit in violation of
RPC 8.4(a)(3), we also accept its implicit finding that the accused did not tell
Simmons that he had filed a response to the motion to dismiss when, in fact, he had
not done so.

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Simmons briefly considered seeking to substitute
himself as counsel of record in the habeas appeal and then fil-
ing a motion to vacate. However, Simmons decided that the
time for doing so had elapsed. He therefore took no action in
the Court of Appeals. The appellate judgment dismissing the
habeas appeal issued on September 12, 2007.

On October 8, 2007, Simmons sent a letter to the
judge assigned to the civil case and conceded that issue pre-
clusion foreclosed most of Evett's claims. The judge granted
the defendants' motion for summary judgment in its entirety
on December 6, effectively concluding the civil case.

On March 25, 2008, Simmons wrote to the Bar to
report what he considered to be the accused's ethical viola-
tions. The Bar charged the accused with violating RPC 1.4,
and, following a hearing, the trial panel found the accused
guilty of that charge and imposed a four-month suspension.
The accused seeks review of the trial panel decision. See ORS
9.536(1) (parties may appeal trial panel decision directly to
Supreme Court).

## RPC 1.4 provides:

"(a) A lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply with
reasonable requests for information

"(b) A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation."

The Bar had the burden of establishing a violation of that
rule by clear and convincing evidence. Bar Rules of Procedure
(BR) 5.2. " 'Clear and convincing evidence' means evidence
establishing that the truth of the facts asserted is highly
probable." In re Magar, 335 Or 306, 308, 66 P3d 1014 (2003).

Before this court, the Bar maintains that it met its
burden of proof by establishing that the accused decided not
to file a motion to vacate the habeas judgment and failed to
communicate that decision to Simmons or Evett. The Bar
takes the position that "[i]f the Accused had communicated
his conclusion and decision to Simmons/Evett, the Bar would
not be alleging unethical conduct."

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For his part, the accused maintains that he owed no
duty to Evett with regard to the civil case and told Simmons
only that he would look into the information that Simmons
had provided. The accused contends that, after looking at
that information, he decided that a motion to vacate would be
without merit and informed Simmons of that conclusion. If
Simmons had determined that such a motion would be meri-
torious, the accused asserts, Simmons could have filed the
motion.

The uncontested facts establish that the accused
informed Simmons of his decision not to file a motion to
vacate on or about August 2, 2007, when Simmons received a
copy of the order of dismissal and talked with the accused
by phone. In that conversation, the accused confirmed
Simmons's conclusion that the accused had not filed the
motion and told Simmons that he had not done so because he
did not believe that the motion had merit. Thus, the issue
before us is not whether the accused failed entirely to com-
municate his decision not to file a motion to vacate; the issue
is whether the accused's failure to communicate before
August 2 constituted a failure to keep his client "reasonably"
informed of the status of the matter as required by RPC 1.4.
RPC 1.0(k) provides that " "[r]easonable' or 'reasonably' when
used in relation to conduct by a lawyer denotes the conduct of
a reasonably prudent and competent lawyer."

This court has applied RPC 1.4 in two cases that
shed light on the factors that are relevant to our inquiry. In
In re Snyder, 348 Or 307, 315, 232 P3d 952 (2010), the court
found a violation of RPC 1.4 when the lawyer failed to com-
municate with his client for eight months. During that time,
the lawyer made numerous tactical decisions in the personal
injury case that he was handling for the client, did not dis-
cuss those decisions with the client, and ignored the client's
"urgent messages." Id. at 314. The client terminated the rela-
tionship after learning of the lawyer's decisions, but no other
lawyer would accept the client's case because of the narrow
window for filing the personal injury action within the stat-
ute of limitations, and, therefore, the client was not able to
pursue an action for his injuries. Id. at 312. Thus, the court
considered, as factors that supported its decision that the
lawyer had not kept the client reasonably informed as

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required by RPC 1.4, the time that elapsed between the law-
yer's decision and the communication of that decision, the
lawyer's failure to respond promptly to reasonable requests
for information from the client, and the foreseeable prejudice
that resulted from the lawyer's delay. The court also consid-
ered the client's reasonable and repeated requests for infor-
mation and the lawyer's six-month delay in communication
in finding a violation of RPC 1.4 in In re Koch, 345 Or 444,
198 P3d 910 (2008).

Similar factors were also relevant to this court's
decisions under former Disciplinary Rule (DR) 6-101(B).7 See,
e.g., In re Coyner, 342 Or 104, 149 P3d 1118 (2006) (lawyer
did not communicate with client for one year, failed to take
any action on client's appeal, and failed to notify client that
his appeal had been dismissed); In re Bourcier, 325 Or 429,
939 P2d 604 (1997) (lawyer failed to communicate with client
regarding appeal and did not inform client when briefs were
filed and when Court of Appeals upheld conviction); In re
Chandler, 306 Or 422, 760 P2d 243 (1988) (lawyer failed to
communicate with out-of-state clients for three years and
kept their file in storage long after new lawyer requested it);
In re Duggar, 299 Or 21, 697 P2d 973 (1985) (lawyer failed to
inform client that case strategy was jeopardized and failed
to respond to client's inquiries; client lost opportunity to col-
lect on construction lien). Although former DR 6-101(B)
addressed a lawyer's obligation to communicate under the
rubric of "neglect of a legal matter," that rule addressed the
same concern as does RPC 1.4. As we explained in Snyder:

"Although RPC 1.4 is a relatively new rule in Oregon, a
lawyer's duty to communicate with clients was a part of the
diligence requirement of former Disciplinary Rule (DR)
6-101(B), which dealt with neglect of a legal matter. In con-
sidering alleged violations of that rule, this court held that
failing timely to communicate good or bad news to the client
constituted a violation of that rule, * * * , as did failing to
keep a client informed about the status of the case * * *. The
court also observed, in a case in which a lawyer did not
write any letters to his client about the case and failed

7 The former Disciplinary Rules were replaced by the Rules of Professional
Conduct in 2005.

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to return his client's phone calls or respond to the
client's requests for progress reports, that neglect of a
client and procrastination are violations of professional
responsibility."

348 Or at 315 (internal citations omitted).

From the text of RPC 1.4 and from the cases inter-
preting it and former DR 6-101(B), it is clear that deciding
whether a lawyer has violated RPC 1.4 requires a careful
examination of all of the facts. Factors that are relevant to
that inquiry include the length of time between a lawyer's
decision and the lawyer's communication of that decision to
the client, whether the lawyer failed to respond promptly to
reasonable requests for information from the client, and
whether the lawyer knew or a reasonable lawyer would have
foreseen that a delay in communication would prejudice the
client.

By setting out those factors, we do not intend to
imply that any one of them is necessary to establish a viola-
tion of RPC 1.4, or that they are the only factors relevant to
the inquiry. In some situations, a lawyer may need to com-
municate a decision immediately to keep a client reasonably
informed, and in many instances RPC 1.4 puts the onus on
the lawyer to initiate communication with the client. RPC 1.4
includes, but is not limited to, the obligation to promptly
respond to client requests. Further, a lawyer's obligation to
keep a client reasonably informed exists regardless of the
merits of a client's claim or position. If a client's claim or posi-
tion lacks merit, that lack, and not the lawyer's failure to
communicate, ordinarily will be the cause of the client's lack
of success and any resulting prejudice. In such a circum-
stance, the fact that a lawyer's failure to communicate does
not prejudice the client does not relieve the lawyer of the eth-
ical duty to communicate. See In re Geurts, 290 Or 241, 246
n 6, 620 P2d 1373 (1980) (lawyer's opinion that client's case
lacked merit did not excuse neglect, at least to extent of so
informing client); Coyner, 342 Or at 108 (lawyer must com-
municate "bad news as well as good to the client" and failure
to do so is neglect).

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On the other hand, when a lawyer knows or reason-
ably should foresee that a failure to communicate with a cli-
ent may itself prejudice that client, and nevertheless engages
in delay, that fact is important to a determination of whether
the lawyer met the obligations imposed by RPC 1.4. Although
proof of a violation of RPC 1.4 does not depend on proof that
the lawyer caused prejudice to the client, reasonably foresee-
able prejudice, where present, may be material to the
inquiry.

In this case, we have no difficulty deciding that the
accused was required to inform Simmons, and thereby Evett,
of his decision not to file a motion to vacate the habeas judg-
ment. Although the accused represented Evett in the habeas
appeal and not in the civil case, he agreed to "look into"
whether there were grounds to take action in the appeal that
would benefit the civil case. Having undertaken that respon-
sibility, the accused was required to reasonably inform his
client of his decision. We also have no difficulty in deciding
that the accused informed Simmons, and thereby Evett, of
his decision not to file a motion to vacate the habeas judg-
ment on or about August 2, 2007. The issue we face is
whether, on those facts and considering the factors we have
identified, the accused kept his client "reasonably informed"
of the status of the appeal.

We first consider the length of time between the
accused's decision not to file a motion to vacate and August 2,
2007. As of June 7, the accused was still "in the process" of
examining the case law that Simmons had provided to decide
whether he would file a motion to vacate. If the accused made
a decision not to file a motion to vacate shortly after June 7,
he failed to communicate his decision for a period of approxi-
mately two months. However, if the accused made his deci-
sion in late July, shortly before he informed Simmons of it, he
delayed the communication of that decision for a matter of
days. We have reviewed the record and cannot ascertain
when the accused made his decision not to file the motion to
vacate. As a result, we cannot determine the length of time
between the accused's decision and August 2, when the
accused communicated that decision, nor can we rely on the
length of the accused's delay, if any, as a factor in our
analysis.

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The second factor to which we turn is whether the
accused failed to respond promptly to reasonable requests for
information from Simmons or Evett. See Snyder, 348 Or at
314 (failure to respond to client's urgent and repeated
requests for information); Koch, 345 Or at 453 (same). The
accused generally answered telephone calls and e-mails from
Simmons within a day or two and Simmons found the
accused "pretty easy to get ahold of." When Simmons called
the accused on or about August 2, 2007, to ask him whether
he had filed the motion to vacate, he had no trouble reaching
the accused and the accused answered Simmons's questions
directly. We can identify only one instance in which the
accused did not respond promptly to a request for informa-
tion from Simmons or Evett-i.e., when the accused failed to
send Simmons a copy of the order of dismissal until after
Simmons's second request for that document. Specifically, on
July 17, Simmons asked the accused for a status report. The
next day, July 18, the accused told Simmons that the appeal
had been dismissed and that he would fax Simmons a copy of
the order of dismissal. However, the accused did not send
that copy until after Simmons requested it a second time,
some eight days later.

In determining whether the accused "promptly"
complied with a "reasonable" request for information as
required by RPC 1.4 we can consider the fact that the request
came from Simmons, a lawyer who also represented Evett.
Although Simmons's request that the accused send him a
copy of the court's order of dismissal was reasonable, we note
that Simmons could have obtained a copy of that order from
the court directly, rather than waiting to receive it from the
accused. Furthermore, the accused had accurately informed
Simmons of the substance of the order. In that circumstance,
we cannot say that the accused's eight-day delay alone dem-
onstrates a violation of RPC 1.4.

Finally, we consider whether the accused knew or
should have foreseen that his delay in communicating his
decision not to file a motion to vacate the habeas judgment
would prejudice his client. If the accused knew or reasonably
should have foreseen that, to be successful, a motion for vaca-
tur had to be filed by a certain date, but failed to communi-
cate his decision until after that date, then that fact is rele-
vant in deciding whether the accused violated RPC 1.4.

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Whether that fact exists, depends, of course, on the law of
vacatur and the time limits, if any, for seeking it.

Vacatur is an equitable remedy that a party may
seek when a case becomes moot. Kerr v. Bradbury, 340 Or
241, 246, 131 P3d 737, adh'd to on recons, 341 Or 200, 140
P3d 1131 (2006). The Bar does not point to any statutes or
rules, and we are not aware of any, that expressly address
the time frame for filing a motion to vacate in an appellate
court. At the disciplinary hearing in this matter, Simmons
testified that he believed that the motion to vacate had to be
filed in response to the state's motion to dismiss. However,
the case law that Simmons provided to the accused demon-
strated that, in other cases, parties had sought and obtained
vacatur by filing motions for reconsideration seeking that
relief after an appellate court had held an appeal to be moot.
In City of Eugene v. PERB, 341 Or 120, 137 P3d 1288 (2006),
for example, the petitioners filed a motion for reconsideration
after this court had held that their appeal was moot. The
court granted the petition for reconsideration because peti-
tioners had demonstrated that "equity call[ed] for vacatur[.]"
Id. at 127. The parties invoked a similar procedure in the
Court of Appeals in PGE v. Int'l Brotherhood of Electrical
Workers, 209 Or App 77, 79, 146 P3d 333 (2006), rev den, 342
Or 644 (2007). There, the defendant filed, and the Court of
Appeals granted, a petition for reconsideration seeking vaca-
tur of a circuit court judgment after the Court of Appeals had
dismissed the appeal of that judgment as moot.

The accused concluded, and was correct in conclud-
ing, that the Court of Appeals could entertain a motion to
vacate the habeas judgment as long as it had jurisdiction. See
Jensen v. Bevard, 217 Or App 309, 312, 175 P3d 518 (2007)
(after court reversed and remanded, and after time for filing
motion to reconsider had expired, party filed motion to vacate
appellate judgment, which court entertained, but denied on
merits); State v. Cozad, 210 Or App 465, 150 P3d 1113 (2007)
(court granted leave to file motion to vacate four months after
decision); State ex rel SOSCF v. Corbit, 165 Or App 653, 997
P2d 294 (2000), vac'd and dismissed by order, May 8, 2000,
3 P3d 171 (2000) (court dismissed appeal because appeal was
from nonappealable order; parties filed independent motion
to vacate trial court judgment following entry of order dis-
missing appeal). In this case, the Court of Appeals could have

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entertained a motion to vacate until September 12, 2007,
when the appellate judgment issued and the court lost juris-
diction. See ORS 19.270(6) (court has jurisdiction until appel-
late judgment issues).

If the accused made his decision not to file a motion
to vacate the habeas judgment in early July when the Court
of Appeals entered its order of dismissal, the best course
would have been for him to communicate his decision to
Simmons at that time. However, the Bar did not prove when
the accused made his decision or that the accused knew or
reasonably should have foreseen at the time that he did so,
that delay would foreclose his client's opportunity to seek to
vacate the habeas judgment. When the accused informed
Simmons of his decision on or about August 2, 2007,
Simmons had time to seek to substitute himself as counsel of
record in the habeas appeal and to file the appropriate
motion.8

In summary, we conclude that the Bar did not estab-
lish, by clear and convincing evidence, that the accused
delayed in communicating his decision not to file a motion to
vacate for an unreasonable length of time or under circum-
stances in which he knew or reasonably should have foreseen
that a delay in communicating that decision would cause
harm to his client. The Bar also did not establish that the
accused failed to promptly comply with Simmons's reason-
able requests for information. The Bar does not argue that
other facts or factors bear on our decision, and we hold that

8 In reaching that conclusion, we do not intend to foreclose the possibility that
Simmons could have asked the Court of Appeals to recall the appellate judgment
after it issued or that the only solution to the dilemma posed by Evett's release
from custody was the filing of a motion to vacate in the Court of Appeals. Simmons
also may have been able to advance the same equitable arguments that he asked
the accused to make in support of a motion to vacate to argue against application of
the rule of issue preclusion in the circuit court civil action. See Restatement
(Second) of Judgments § 28 (1982) (listing exceptions to issue preclusion including
when a case becomes moot on appeal); Nelson v. Emerald People's Utility Dist., 318
Or 99, 104, 862 P2d 1293 (1993) (party precluded must have had "full and fair
opportunity" to litigate the issue). ORCP 71 B also permits relief from judgment in
cases where "it is no longer equitable that the judgment should have prospective
application." See ORS 19.270(1)(e) (trial court retains jurisdiction over a matter for
purpose of deciding motion for relief from judgment). We do not opine on the merits
of those arguments. We set them forth only to ensure that this opinion is not inter-
preted to foreclose them.

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the Bar did not prove, by clear and convincing evidence, that
the accused violated RPC 1.4.

The complaint against the accused is dismissed.