In re Ersoff

A good-faith assertion of a plausible legal position on an open question is not knowingly false under RPC 3.3(a)(1), but a lawyer seeking ex parte administration of an intestate estate must disclose any known, potentially valid will to the judge deciding the petition. A single improper omission violates RPC 8.4(a)(4) only if it causes or risks substantial harm to the administration of justice. In re Ersoff, 375 Or 43, 53-65 (2026).

The Bar sought review of a trial panel’s dismissal of its disciplinary complaint against Respondent. Respondent represented a client challenging the validity of a 2017 will, accordingly he filed a separate will contest and, the next day, an ex parte intestate petition omitting the will and pending contest. The Bar alleged that Respondent knowingly made or failed to correct a false statement, knowingly withheld legally required information, and prejudiced the administration of justice, violating RPC 3.3(a)(1), RPC 3.3(a)(4), and RPC 8.4(a)(4). Respondent maintained that “intestate” conveyed his position that no valid will existed and that the related filing disclosed it. A good-faith assertion of a plausible legal position on an open question is not knowingly false. In re Marandas, 351 Or 521, 533, 270 P3d 231 (2012). Because “intestate” means dying without a valid will and the will’s validity remained unresolved, the Court concluded that Respondent’s statement was not knowingly false. The Court nevertheless determined that the potentially valid will was material information that Respondent had to disclose to the probate judge; filing the contest in the circuit court was insufficient. In re Ersoff, 375 Or 43, 53-59 (2026). That omission did not establish a violation, however, because RPC 3.3(a)(1) and RPC 3.3(a)(4) required proof that Respondent knew he had failed to accomplish the required disclosure. Id. at 59-62 & n 10.

The Bar failed to prove that knowledge by clear and convincing evidence because Respondent prepared a combined pleading, filed the contest in the probate department, and believed the probate matter would remain inactive pending the contest. Although the omission was improper, it neither caused nor risked the substantial harm required for a single act to violate RPC 8.4(a)(4): the related proceeding disclosed the will, Respondent’s client would serve as personal representative either way, and the estate’s only asset remained in trust. The complaint is dismissed.