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Full Opinion
BOB GODFREY PONTIAC, INC., an Oregon Corporation, Petitioner,
v.
Larry ROLOFF and Douglas Melevin, Respondents.
Supreme Court of Oregon.
*841 Richard C. Houghton, Eugene, argued the cause and filed the briefs for petitioner.
William G. Wheatley, Eugene, argued the cause for respondents. With him on the brief was Jaqua & Wheatley, P.C., Eugene.
Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.
TONGUE, Justice.
This is an action for damages against two attorneys alleging violations of their duties as attorneys as provided by ORS 9.460, which states that:
"An attorney shall:
"* * *
"(4) Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of law or fact; * * *."
A previous action had been brought by plaintiff, an automobile dealer, who had sued the purchaser of a used car for the balance of the purchase price. The purchaser, represented by these two attorneys, filed in that action a counterclaim for damages against the dealer alleging, among other things, that the dealer had impliedly warranted the merchantable quality and fitness of the used car; that the car was defective in various aspects, and that the dealer had refused to repair the defects at no cost to the purchaser.
After prevailing in that action, the dealer brought this action against the two attorneys. Its second amended complaint alleged, among other things:
"IV. That during the course of the proceedings of said lawsuit, Defendants Larry Roloff and Douglas Melevin used means that were not consistent with the truth and sought to mislead the Court and jury by artifice and false statements of fact in the following particulars:
"A. By intentionally falsely alleging in the pleadings that Plaintiff had sold the automobile to Defendant Ruth Mellen with warranties.
"B. By intentionally falsely alleging in the pleadings that Plaintiff had failed and refused to repair alleged defects in the automobile purchased by Ruth Mellen from Plaintiff at no cost to Ruth Mellen.
"C. By allowing Ruth Mellen to give false sworn testimony to the effect that Plaintiff had never offered to repair her automobile if it were defective at no charge to her.
"D. By seeking to exclude testimony and evidence from the Court and jury as to Plaintiff's offers to fix Defendant Ruth Mellen's automobile at no cost to her if the automobile purchased were defective.
"V. As a direct and proximate result of Defendants Larry Roloff and Douglas Melevin's conduct, as alleged hereinabove, Plaintiff was required to defend against Ruth Mellen's action against Plaintiff, and Plaintiff's reputation was damaged in the amount of $25,000.00, and Plaintiff incurred attorney's fees, not recoverable in Ruth Mellen's action against Plaintiff, in the amount of $3,311.55."
Defendants' (the two lawyers) demurrer to that complaint upon the ground that it failed to state a cause of action was sustained. Plaintiff then filed a third amended complaint, with somewhat different allegations, to which defendants filed an unsuccessful demurrer, an answer, and a motion *842 for summary judgment, which was allowed.[1]
Plaintiff then appealed to the Court of Appeals from the resulting adverse judgment and assigned as error the sustaining of defendants' demurrer to its second amended complaint. In that appeal plaintiff contended that:
"Intentional violations of the statutory duties of an attorney as set out in ORS 9.460 should give rise to a claim for relief by a party damaged as a consequence."
In support of that contention plaintiff cited, among other cases and authorities, the decision by this court in O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977).
The Court of Appeals affirmed the trial court by an opinion in which that court said:
"Of course, the Supreme Court's statement in O'Toole is dictum, not binding precedent. In view of the potential ramifications of a rule such as plaintiff here seeks, we believe that the Supreme Court, if squarely faced with the problem, would follow the weight of authority in other jurisdictions to the effect that a statute or rule setting forth the duties of an attorney toward clients or the public does not create a new and separate tort action." 48 Or. App. 601, 605, 617 P.2d 672 (1980).
We granted plaintiff's petition for review to consider this question.
1. Our decision in O'Toole v. Franklin.
O'Toole v. Franklin, supra, was an action by a doctor against attorneys and their client, charging both malicious prosecution of a medical malpractice action and also negligence by the attorneys in failing, among other things, to properly investigate the claim of malpractice before filing that action. The complaint by the doctor sought $50,000 for damage to his professional reputation and for "emotional disturbance and anguish." The appeal in that case was also from a judgment following an order sustaining a demurrer to that complaint.
In affirming the trial court, this court held that in the action for malicious prosecution the demurrer was properly sustained because there was no "special injury," upon application of the rule that "special injury" is required in such cases, and that "`[s]pecial injury' in [the] procedural sense excludes the kind of secondary consequences that are a common and often unavoidable burden on defendants in `all similar causes,'" 279 Or. at 517, 569 P.2d 561, citing Buck v. Gale, 271 Or. 90, 92, 530 P.2d 1248 (1975). Although recognizing (279 Or. at 520, 569 P.2d 561) that "[t]his court is not unprepared to reconsider an old common law rule," we refused to abandon the "special injury" rule, as proposed by plaintiffs, noting (at 521, 569 P.2d 561) that "the legislative process is not inappropriate, given adequate time and preparation, for studying and resolving the competing and the common interests at stake in private law," as had been done on such subjects as comparative *843 negligence, assumption of risk, and no-fault automobile insurance.
This court also held in O'Toole (at 522, 569 P.2d 561) that plaintiff's complaint did not state a cause of action for negligence because it would be incongruous to allow recovery of damages other than for "special injury" in an action based upon "mere carelessness" while denying such recovery in an action for malicious pursuit of an unfounded civil action.
The court then noted (at 522-23, 569 P.2d 561) that in support of his cause of action for negligence the plaintiff in that case relied upon the duties imposed by ORS 9.460(3) and (7) to protect members of the public.[2] In rejecting violation of the provisions of that statute as the basis for a negligence action, this court said (at 523-24, 569 P.2d 561):
"It is true that the duties expressed in these provisions of the Oregon State Bar act run to members of the public beyond an attorney's clients. In the present case, the complaint did not in fact allege that defendants were motivated by the `passion or interest' proscribed by subsection (7), but the allegation quoted above does appear to invoke subsection (3). Taken by itself, it asserts a violation of that subsection by pursuit of an action known to be wrongful and unjust. If it stood alone, it would appear to go beyond negligence to allege a deliberate breach of a duty imposed by statute to protect members of the public against the precise kind of injury of which plaintiffs complain.
"Violations of duties of this kind often do give rise to private rights of action independent of the common law. * * * And of course, the professional duties imposed by ORS 9.460 bind attorneys independently of any `special injury' to anyone. However, in the present case the allegation of the attorneys' knowledge was pleaded expressly as a specification of negligence, not as an intentional and deliberate breach of a statutory duty to plaintiffs." (Emphasis added)
In considering the applicability of these statements in O'Toole to this case, it is significant to note that the plaintiff in that case did not contend, as in this case, that this court should "create" a new and independent cause of action for damages against attorneys for breach of duties imposed by ORS 9.460. Instead, the contention by the plaintiff in that case was that for the purposes of a common law action for negligence, the violation of a duty imposed by statute "constitutes negligence as a matter of law," as in Stachniewicz v. Mar-Cam Corporation, 259 Or. 583, 586, 488 P.2d 436 (1971), the only case cited by plaintiff in O'Toole in support of its contention based upon ORS 9.460.[3] This distinction is discussed below.
Aside from the importance of this distinction, the parties in O'Toole did not brief or argue the question presented in this case, i.e., whether violation of any of the duties stated by ORS 9.460 gives rise to a new and independent cause of action. Of equal importance, our statement in O'Toole that "violations of duties of this kind often do give *844 rise to private rights of action independent of the common law," was qualified, not absolute. For these reasons, we do not regard that statement in O'Toole as decisive upon the question presented for decision in this case.
2. Civil liability based upon violation of a statutory duty.
It should be noted at the outset, although by no means controlling in our analysis of the problem presented for decision in this case, that this court has authority under ORS 9.480 to disbar, suspend or reprimand attorneys for violations of ORS 9.460, and under ORS 9.490 to discipline attorneys for violations of the Code of Professional Responsibility adopted by this court and which in DR 7-102 covers essentially the same concerns as expressed in ORS 9.460(4), and that this court has exercised authority granted under those provisions on many occasions to discipline attorneys for conduct of the type found in ORS 9.460(4).[4]
Also, before reviewing the decisions by other courts which have considered the question whether violation by an attorney of an ethical duty imposed by statute or by a Code of Professional Responsibility gives rise to a new and private cause of action for damages "independent of the common law," it is helpful to review previous decisions by this court in deciding, in different contexts, whether violation of a duty imposed by statute will give rise to a private cause of action.
In this court's most recent discussion of this question, Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980), it was noted (at 276-78, 604 P.2d 1261) that an initial distinction must be made between (1) cases in which liability would be based upon violation of a statutory duty when there is also an underlying common law cause of action, and (2) cases in which liability would be based upon violation of a statute when there is no underlying common law cause of action.
A common example of a case of the first type is an action for damages for negligence in which it is contended that violation of a duty imposed by statute is negligence per se in that the statutory duty is the standard of conduct of a reasonably prudent person, although the other elements of a cause of action for negligence must still be shown. The test for determining whether violation of a statute constitutes negligence per se in such a case, as stated in Stachniewicz v. Mar-Cam Corporation, *845 259 Or. 583, 586, 488 P.2d 436 (1971), is (1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent. See also Miller, supra, 288 Or. at 276, 604 P.2d 1261.
In Miller, however, it is stated that the approach to be taken by this court is somewhat different in cases in which there is no underlying common law cause of action and when the court is called upon to, in effect, "create" or "recognize" a new tort. 288 Or. at 278, 604 P.2d 1261. In such a case it must still be determined whether the plaintiff is a member of the class protected by the statute and whether the harm inflicted is the type intended to be protected against. The court must undertake further analysis, however, by an examination of the statute to determine whether there exists any explicit or implicit legislative intent that a violation of a statute should give rise to a tort cause of action. Miller, supra, 288 Or. at 278, 604 P.2d 1261.
If no intent either way is evident from the statute, then, according to Miller, at 278, 604 P.2d 1261, this court must attempt to ascertain how the legislature would have dealt with the problem had it been considered by the legislature. This is usually done, according to Miller, at 278, 604 P.2d 1261, by "looking at the policy giving birth to the statute and determining whether a civil tort action is needed to carry out that policy." (Emphasis added.) In Miller, upon application of these criteria under quite different facts, this court declined (at 279, 604 P.2d 1261) to "create" a new and private cause of action for damages for violation of a statute.[5]
In Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978), this court also declined to "create" or "recognize" a new private cause of action for violation of a statute, again under quite different facts. In that case we described (at 712, 588 P.2d 1105) the question to be decided as being whether such a new tort action was "necessary and desirable to further vindicate the right [of the aggrieved party] or to further enforce the duty created by statute." In employing the above analysis, this court in Burnette emphasized that in such a case it is the court, and not the legislature, which is "creating" or "recognizing" the new cause of action, stating (at 711-12, 588 P.2d 1105) that:
"The establishment by courts of a civil cause of action based on a criminal or regulatory statute is not premised upon legislative intent to create such an action. It is obvious that had the legislature intended a civil action it would have provided for one, as legislatures many times do. Therefore, the underlying assumption is that it was not intended that the statute create any civil obligation or afford civil protection against the injuries which it was designed to prevent. When neither the statute nor the common law authorizes an action and the statute does not expressly deny it, the court should recognize that it is being asked to bring into existence a new type of tort liability on the basis of its own appraisal of the policy considerations involved. * * *
"Because it is plain to the legislature that it could have created the civil liability and it has not, courts must look carefully not only at the particular statute establishing the right or duty but at all statutes which might bear either directly or indirectly on the legislative purpose. If there is any chance that invasion into the field by the court's establishment of a civil cause of action might interfere with *846 the total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires." (Emphasis added)[6]
Again, in Farris v. United States Fidelity and Guaranty Company, 284 Or. 453, 587 P.2d 1015 (1978), this court held that violation of provisions of the Insurance Code prohibiting certain conduct did not give rise to a tort action. The primary reason for so holding was that other provisions of the code provided for civil penalties payable to the state for code violations and that this was an indication that the legislature did not intend a private cause of action. 284 Or. at 458, 587 P.2d 1015.
In Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978), however, this court stated (at 604, 588 P.2d 1087) that ORS 659.410, making it an unlawful employment practice to discriminate against a worker for applying for workers' compensation benefits, recognized a public policy that supported a civil action for damages for wrongful discharge by a worker discharged for applying for such benefits. The court made it clear, however (at 604 and 610-12, 588 P.2d 1087), that it was not "creating" or "recognizing" a new cause of action in that case based upon violation of ORS 659.410, but was holding only that such an employee had an existing common law cause of action for wrongful discharge. Brown, therefore, is best characterized as an extension of an existing common law cause of action, rather than creation of a new cause of action. (See distinction by this court in Miller, supra, 288 Or. at 276-78, 604 P.2d 1261, as previously noted.)
In another recent case this court also used a violation of a statutory duty as the basis for finding liability under an existing common law cause of action for negligence, i.e., as negligence per se. See Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75 (1978) (violation of ORS 471.130(1), prohibiting sale of liquor to minors, as negligence per se).
From this review of decisions by this court it appears that although this court has stated circumstances under which it would "create" or "recognize" a new cause of action for damages for violation of a statute when there is no "underlying" common law cause of action, the court has never done so to this date. Indeed, this court has said, in effect, in Burnette, that in a doubtful case it would not do so, but would leave the matter to the legislature. 284 Or. at 712, 588 P.2d 1105.
The issue presented in this case is clearly one in which there is no underlying common law cause of action. In O'Toole this court rejected the contention that alleged violations of ORS 9.460(3) and (7) provided the basis for a common law action for damages for negligence. Also, because ORS 9.460 was originally enacted in 1862, we find nothing in the statute or its legislative history to indicate that the legislature intended that there should be liability for violation of its provisions. Thus, in this case, as in Miller and Burnette, this court must decide, "on the basis of its own appraisal of the policy considerations involved," whether to "bring into existence a new type of tort liability" for damage to reputation and for attorney fees against an attorney who has allegedly violated the provisions of ORS 9.460(4).
The concurring opinion by Linde, J., is critical of our quotations from Burnette and our application of the analysis adopted by this court in that case to the problem presented in this case.
It may be that in some future case this court will decide to abandon the analysis adopted by it in those cases and to adopt the analysis proposed by Linde, J. In this case, however, neither party has either questioned the analysis adopted by this court in Miller and Burnette or proposed that a different analysis be adopted by this *847 court in this case. Under these circumstances, we believe it to be proper to not only decide this case by application of the analysis adopted by this court in Miller and Burnette, but in doing so to refer specifically to the analysis as adopted in those cases.
This analysis of the problem presented in this case is similar to the analysis proposed by the Restatement of Torts (Second) § 874A, for application in deciding when such liability should be imposed as follows:
"When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action."
The official comment to the Restatement proposes that the primary test for application in determining whether to impose civil liability should be whether the new civil remedy is "consistent with the legislative provision, appropriate for promoting its policy and needed to assure its effectiveness." Comment f, § 874A.
Before undertaking to apply this analysis to the question whether such attorneys should be held liable for such damages in a civil action for damages, we next discuss the decisions by other courts which have considered and decided this same question.
3. Decisions by other courts.
Other courts have also addressed the question whether an attorney's violation of a statutory duty or of the Code of Professional Responsibility (CPR) gives rise to a private cause of action for damages. All of the courts that have directly considered this question have held that it does not. See Martin v. Trevino, 578 S.W.2d 763 (Tex.Civ. App. 1978); Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 199 S.E.2d 260 (1973) (statute prohibiting solicitation); Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., 358 F. Supp. 17 (E.D.Tenn. 1972); Bush v. Morris, 123 Ga. App. 497, 181 S.E.2d 503 (1971) (statute prohibiting DA from having private practice); Lyddon v. Shaw, 56 Ill. App.3d 815, 14 Ill.Dec. 489, 372 N.E.2d 685 (1978); Gifford v. Harley, 62 A.D.2d 5, 404 N.Y.S.2d 405, (1978); Hill v. Willmott, 561 S.W.2d 331 (Ky.App. 1978); Drago v. Buonagurio, 46 N.Y.2d 778, 413 N.Y.S.2d 910, 386 N.E.2d 821 (1978); Spencer v. Burglass, 337 So.2d 596 (La. App. 1976); Noble v. Sears, Roebuck & Co., 33 Cal. App.3d 654, 109 Cal. Rptr. 269 (1973); Bickel v. Mackie, 447 F. Supp. 1376 (N.D. Iowa 1978); Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980); Young v. Hecht, 3 Kan. App.2d 510, 597 P.2d 682 (1979); Friedman v. Dozorc, 83 Mich. App. 429, 268 N.W.2d 673 (1978); Brody v. Ruby, 267 N.W.2d 902 (Iowa 1978).[7] It also appears that most legal writers on this subject *848 approve the rule as stated by these courts.[8]
The principal reasons for this rule, as stated in the opinions by these courts, are the following:
(a) The statute or Code of Professional Responsibility was not intended to create a private cause of action. On the contrary, the sole intended remedy for a violation of such a statute or code is the imposition of discipline by disbarment, suspension or reprimand of the offending attorney. See, e.g., Martin v. Trevino, supra, at 770; Bickel v. Mackie, supra, at 1383; Merrit-Chapman & Scott Corp. v. Elgin Coal, Inc., supra, at 22; Hill v. Willmott, supra, at 333-34, and Noble v. Sears, Roebuck & Co., supra, 109 Cal. Rptr. at 271-72. See also Brody v. Ruby, supra, at 907-08; Spencer v. Burglass, supra, at 600-01, and Tingle v. Arnold, Cate & Allen, supra, 199 S.E.2d at 263.
(b) Other remedies, such as malicious prosecution, adequately protect the public from harassment or abuse by unprofessional lawyers. See, e.g., Nelson v. Miller, supra, 607 P.2d at 451, and Merrit-Chapman & Scott Corp. v. Elgin Coal, Inc., supra, at 22.
(c) To expose attorneys to actions for damages for breach of ethical duties imposed by such statutes and codes would be contrary to the "obvious public interest" in affording every citizen "the utmost freedom of access to the courts." See, e.g., Lydden v. Shaw, supra, 14 Ill.Dec. at 494, 372 N.E.2d at 690, and Hill v. Willmott, supra, at 334.[9]See also Brody v. Ruby, supra, at 907.
4. For this court to "create" or "recognize" a new cause of action in this case to recover for damage to reputation and attorney fees is not necessary to carry out the policy of the statute and would be inconsistent with long-established rules and policies.
Upon application of the analysis as previously stated by this court in Miller v. City of Portland, supra, it would appear that the plaintiff in this case may be a "member of the class" intended to be protected by ORS 9.460(4). It is not so clear, however, for reasons to be stated, whether the damages claimed by the plaintiff in this case (damages to reputation and attorney fees) were of a type intended to be protected against or that the creation by this court of a new private cause of action to recover such damages is both consistent with the policies of that statute and "needed to carry out the policy" of ORS 9.460(4).
The damages sought by this plaintiff, and perhaps the principal damages that would be sought in most such cases, are for damage to reputation and for attorney fees incurred in the previous action. This court, however, has previously considered the respective rights of parties under such circumstances and for important policy reasons has consistently rejected claims against attorneys for civil liability for such damages. Creation by this court of a new tort action for such damages for violation of ORS 9.460(4) would be inconsistent with those policies.
*849 Thus, in cases involving actions for malicious prosecution, this court has long held that there can be recovery only for the kind of extraordinary harm contemplated by the term "special injury," which excludes "the kind of secondary consequences that are the common and often unavoidable burden on defendants in `all similar causes'." See O'Toole v. Franklin, 279 Or. 513, 516-17, 569 P.2d 561 (1977); Donovan v. Barnes, 274 Or. 701, 703-04, 548 P.2d 980 (1976); Carnation Lbr. Co. v. McKenney, 224 Or. 541, 546-47, 356 P.2d 932 (1960); Mitchell v. Silver Lake Lodge, 29 Or. 294, 296-97, 45 P. 798 (1896). As in O'Toole, where we held (at 517) that damage to professional reputation would be common to medical malpractice actions, damage to business reputation would also be common in actions against a car dealer when breach of warranty is alleged, as in this case. Recovery of attorney fees incurred in the previous action is even more clearly excluded from such a definition of "special injury" because such an expense is even more of a "common and often unavoidable burden on defendants in `all similar causes.'"
The policy reason for the requirement of "special injury" was recently stated by this court in Donovan v. Barnes, supra, as follows:
"The justification for this restriction lies in the policy of maintaining free access to the courts by individuals seeking to vindicate their rights. This policy could be impaired if litigants had reason to fear retaliatory action should their claim prove unfounded. However, the policy is overcome when in seeking to vindicate his own rights a litigant interferes with the property or liberty of the defendant in such a way as to cause the defendant to incur some special damage or unusual hardship." 274 Or. at 703-04, n. 1, 548 P.2d 980.
Accord, Carnation Lbr. Co. v. McKenny, 224 Or. 541, 356 P.2d 932 (1960).
In O'Toole v. Franklin, supra, this court, after noting that this rule has been the subject of criticism, reaffirmed this same rule and its application in an action against an attorney for malicious prosecution. 279 Or. at 518-19, 569 P.2d 561. It was further stated in O'Toole (at 520, Additional Information