I am sorry to have to report what I believe is an ethical violation by attorneys Daniel N. Gordon and Matthew Aylworth of Eugene, Oregon. The office of Daniel N. Gordon filed a case on behalf of Mid America Credit Management, a collection agency, against my client (Ms. Rodriquez). The case involved an alleged breach of contract (Multnomah County District Court Case No. C070211CV). Ms. Rodriguezs identity had been stolen and her identity was used in incurring charges on a Chase Manhattan credit card.
The Complaint was filed on or about March 2007. Ms. Rodriquez, appearing pro-se, filed an Answer to the Complaint denying liability.
On or about April 26, 2007, Mr. Gordon filed a Request for Admissions upon Ms. Rodriquez. On May 21, 2007 our office notified Mr. Gordon that we had been retained to represent Ms. Rodriquez in this matter and to note our representation and to communicate directly with our office. In this letter I also noted that we had received Mr. Gordons Request for Admissions and sought a thirty-day extension to respond to these admissions. On May 24, 2007, his office sent our office a letter granting our thirty-day extension to respond.
On June 4, 2007, Ms. Rodriquez received a request by Washington County assigning the case to their Arbitration department with a selection of potential arbitrators. On June 7, 2007, I called Mr. Gordon and we discussed potential arbitrators in the case. On June 22, 2007, after meeting with Ms. Rodriquez, our office responded to Mr. Gordons Request for Admissions. On this same date our office submitted Ms. Rodriguezs First Request for Production on Mr. Gordon.
On September 12, 2007, after conferring with Mr. Gordons office, I learned that Mr. Gordon intended to dismiss his complaint. In a letter that same day, I informed Mr. Gordon that if he intended to dismiss the case, I believed that Ms. Rodriguez was entitled to her attorney fees and an enhanced prevailing party fee from the court. I let Mr. Gordon know that it was this offices intent to seek to apply to the court for an enhanced prevailing party fee and attorney fees totaling $3,658.
On September 14, 2007, I wrote Matthew Aylworth, an attorney in Mr. Gordons office, letting him know Ms. Rodriguezs attorney fees and costs. I also offered to settle the matter short of a dismissal. On November 7, 2007, my secretary informed me that Mr. Aylworth had presented an ex-parte motion to the court on October 4, 2007, dismissing the case. On October 11, 2007, after receiving plaintiffs ex-parte motion, Circuit Court Judge Mark Gardner dismissed the action. Neither our office nor my client were copied on the ex-parte motion or proposed Order dismissing the case without attorney fees or costs.
Upon learning of this ex-parte dismissal, my first reaction was that it was an oversight and inadvertent error. Then, on November 30, 2007, I called Mr. Gordon and he informed me that his office had no duty to inform our office (or Ms. Rodriguez, as there is no certificate of mailing with the Notice of Dismissal) of his unilateral dismissal because our office had never formally appeared in the case. I let him know that Oregon Rules of Civil Procedure (9) specifically requires that upon notice that a party is represented by an attorney, all written pleadings or motions must be copied to such attorneys. Mr. Aylworth did not even copy the defendant. I believe this dismissal had a substantial effect on Ms. Rodriguezs case and that she has been severely prejudiced by this ex-parte contact. She was entitled to have her fee petition presented to the court and to have the court consider an enhanced prevailing party fee.
My concern in writing this letter is that Mr. Gordon or Mr. Aylworth may be prejudicing other defendants in this same manner. Rather than my initial thought that the dismissal was inadvertent, it appears that this is a normal practice of Mr. Gordons office. Oregon Rules of Civil Procedure require Mr. Gordon and his office to let parties and their counsel know when his office is seeking substantive rulings concerning pending cases with the court. In this case, it severely impacted Ms. Rodriguez. Mr. Gordon has informed me that this was not an oversight. He told me my remedy was to try to get the court to reinstate the case.