No. 19 May 14, 2015 295

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Re Complaint as to the Conduct of

JAMES C. JAGGER,

OSB Bar #700700,

Accused.

(OSB 11103, 1353, 1354; S061978)

En Banc

On review of the decision of the trial panel of the 

Disciplinary Board.

Argued and submitted January 13, 2015.

John C. Fisher, Eugene, argued the cause and filed the 

briefs for the accused.

Susan Roedl Cournoyer, Assistant Disciplinary Counsel, 

Tigard, argued the cause and filed the brief for the Oregon 

State Bar.

PER CURIAM

The accused is suspended from the practice of law for a 

period of 90 days, commencing 60 days from the filing of this 

decision.
296 In re Jagger

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon 

State Bar (Bar) alleged and the trial panel found that, in the 

course of representing a criminal defendant (Fan matter) 

on charges which included several counts of contempt for 

violating a Family Abuse Prevention Act (FAPA) restraining order, the accused violated Rule of Professional Conduct 

(RPC) 1.1 (failure to provide client with competent representation) and RPC 1.2(c) (counseling or assisting client 

to engage in conduct the accused knows to be illegal or 

fraudulent). The trial panel concluded that the appropriate 

sanction was a 90-day suspension from the practice of law. 

The accused sought review by this court under Bar Rule of 

Procedure (BR) 10.3.

On review, the Bar asks this court to affirm the 

above findings and, in addition, to find that the accused violated RPC 8.1(a)(2) (knowing failure to respond to lawful 

demand for information from a disciplinary authority) in 

the Fan matter and that the accused violated RPC 1.15-1(d) 

(failure to promptly return client property) in the course of 

his representation of another client (Cheney matter).

We review de novo. ORS 9.536(2); BR 10.6. Based 

on our review of the record, we conclude that the accused

violated RPC 1.1 and RPC 1.2(c) in the Fan matter; we conclude that the accused did not violate RPC 8.1(a)(2) in the 

Fan matter and did not violate RPC 1.15-1(d) in the Cheney 

matter.

We briefly discuss the accused’s arguments in the 

Fan matter only. The trial panel’s statement of facts, which 

are essentially undisputed, is as follows:

“Mr. Fan was the respondent in a Family Abuse Prevention Act proceeding filed by Ms. Yang. The proceeding 

resulted in a restraining order against Fan which ordered 

him to refrain from contacting Yang. Fan also became a 

defendant in a criminal proceeding arising from the same 

conduct. The Accused represented Fan in these matters.

“On a day when Fan remained in jail on the criminal 

charge, the Accused contacted Yang via phone and arranged 

for her to visit his office at a later date. However, later that 
Cite as 357 Or 295 (2015) 297

same day Yang visited the office of the Accused, without 

advance notice. At that time, the Accused happened to have 

Fan on the telephone in his conference room.

“The Accused invited Yang to speak with Fan on the 

phone, and advised Fan that he was putting Yang on the 

phone for the purpose of discussing the situation. He left 

Yang alone in his conference room for several minutes while 

she had a conversation with Fan. After this conversation, 

Yang left the office and did not again respond to contacts 

from the Accused; the Bar contends that Yang misunderstood the Accused’s role in the matter, and did not know 

that he was representing Fan’s interests alone. The record 

suggests that linguistic and cultural barriers may have 

contributed to Yang’s misunderstanding.

“Based on Fan’s participation in this conversation, he 

was convicted of contempt of court for violating the contact 

provision of the restraining order.”

The trial panel found by clear and convincing evidence that the accused had violated RPC 1.1, because “the 

Accused’s advice to Fan could not have been the product of 

legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” See RPC 1.1 (“A 

lawyer shall provide competent representation to a client. 

Competent representation requires the legal knowledge, 

skill, thoroughness and preparation reasonably necessary 

for the representation.”). The trial panel also found “that the 

Accused knew the conduct which he assisted was illegal,” in 

violation of RPC 1.2(c), which provides:

“A lawyer shall not counsel a client to engage, or assist a 

client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences 

of any proposed course of conduct with a client and may 

counsel or assist a client to make a good faith effort to 

determine the validity, scope, meaning or application of 

the law.”

First, the accused contends that Fan’s girlfriend, 

Yang, voluntarily initiated the phone contact with Fan. 

However, the record does not support that contention. To the 

contrary, the evidence shows that Fan initiated the phone 

call to the accused, that the accused invited Yang to pick 

up the phone and talk to Fan, and that Yang accepted that 
298 In re Jagger

invitation. The evidence also shows that the accused invited 

Yang to talk to Fan to discuss the restraining order against 

Fan. Thus, the evidence shows that the accused initiated 

the phone contact between Yang and Fan.

Second, the accused contends that the accused 

did not knowingly violate the law because the FAPA order 

prohibited Fan from “[c]ontacting, or attempting to contact, Petitioner by telephone,” which, the accused argues, 

required that Fan take affirmative action to violate the 

order. (Boldface omitted.) Even if we give the FAPA order 

that interpretation, however, the evidence shows that the 

accused assisted Fan in taking affirmative action. As 

explained above, the accused acted as Fan’s agent in inviting Yang to talk to Fan; that invitation was an affirmative 

act. The evidence shows that the accused had actual knowledge of the FAPA order and its terms when he assisted Fan 

in taking that action.

We conclude that there is clear and convincing evidence that the accused violated RPC 1.1 and RPC 1.2(c) in 

the Fan matter. Any further explanation of the underlying 

facts, or our application of the law to those facts in the Fan 

matter or the Cheney matter, would not benefit the bench, 

the bar, or the public. We also conclude that a 90-day suspension is appropriate.

The accused is suspended from the practice of law 

for a period of 90 days, commencing 60 days from the filing 

of this decision.