Lycette v. Kaiser Foundation Health Plan

Whether an attorney engaged in “deliberate misconduct” within the context of ORS 20.125 is a factual determination that will be reviewed “for any evidence in the record.” Unless the court reviewing the award finds an abuse of discretion, it will not modify the trial court’s decision.

Attorney repeatedly violated the trial court’s pretrial evidentiary rulings in defiance of written and verbal warnings. The trial court granted Northwest Permanente's motion for a mistrial and characterized Attorney's conduct as “willful and deliberate and the cause of the mistrial.” In accordance with ORS 20.125, the trial court assessed against Attorney “reasonable fees incurred by Northwest Permanente as a result of appellant’s misconduct.” Attorney challenged the trial court’s order requiring him to pay attorney fees under ORS 20.125. Attorney argued that the mistrial was not caused by his “deliberate misconduct” and that the amount of attorney fees assessed was excessive and included fees that were not incurred as a result of his misconduct. Whether an attorney engaged in “deliberate misconduct” is a factual determination that the court will review for any evidence in the record. The Court found that there was evidence to support the trial court’s finding that Attorney engaged in deliberate misconduct that resulted in the mistrial. Thus, the Court held that the trial court did not err in assessing attorney fees under ORS 20.125. Affirmed.