The fundamental fact of law is that standing must be ACTUAL NOT PRESUMED.

Specifically the issue is whether the foreclosing party actually had the original note at the time the foreclosure was
commenced. Reasserting that standing is jurisdictional and therefore must be proven (with actual facts) present before a
party takes any action, the courts here reversed (not for publication) Summary Judgments in favor of U.S. Bank and
BONY Melon respectively.

The basis of the ruling is really that summary judgment could not have been granted based upon the submissions of so-
called trustees of the probably nonexistent trust that never owned the debts. These decisions can be read as brushing
aside presumptions and requiring actual proof of the facts that were heretofore assumed or presumed. The reason is
simple. Standing is jurisdictional. Since any case that proceeds without jurisdictional is void and subject to being vacated,
the proof must be actual and not presumed.

The interesting reasoning in these decisions is that many courts, including these decisions in Hawaii are starting to
rethink their formal and informal presumptions. At the height of the tidal wave of foreclosures the courts took to the
notion that the foreclosing party would not have filed if they were not the creditor or at least the possessor of the note
with rights to enforce. The giant leap that came thereafter was a ruling that presumed the foreclosing party had
possession of the note and the right to enforce it.

These decisions show that there is more movement toward requiring proof rather than the sue of legal presumptions. In
plain language the courts are beginning to distrust the banks who bring these actions on behalf of alleged trusts.

Since there was question of fact, the summary judgment could not be granted. Thus the court decisions lay out the
procedure, requiring actual proof of contested facts rather than resolving them strictly on the basis of applying legal
presumptions which we all know leads to erroneous factual and legal conclusions.

If the court doesn't agree to hear the issue you can always sue the lawyers for fraud and seek
'relief' by a Stay of execution and if you win move to Vacate ...

Kearney v. Foley & Lardner, LLP, No. 07-55566 (9th Cir. 05/12/2009)

http://caselaw.lp.findlaw.com/data2/circs/9th/0755566p.pdf

In a RICO action against a law firm that represented a school district in an eminent domain
proceeding concerning Plaintiff's property, the dismissal of the complaint is affirmed in part,
where Defendant's actions were in service of its right to petition, but reversed in part, where the
sham litigation exception to the Noerr-Pennington doctrine applied.

A. The Noerr-Pennington Doctrine

On appeal, Kearney argues that the Noerr-Pennington doctrine should not apply in this case
because (1) this is not one of the limited situations in which government officials may receive
immunity, and (2) Defendants’ conduct was not petitioning conduct. Although we find both of
these arguments unavailing, we are persuaded that the doctrine’s sham litigation exception
applies to her claims and prevents the immunization of Defendants’ petitioning conduct.
[1] The Noerr-Pennington doctrine derives from the Petition Clause of the First Amendment
and provides that "those who petition any department of the government for redress are
generally immune from statutory liability for their petitioning conduct." Sosa, 437 F.3d at 929.
It initially emerged in the antitrust context. See E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).
Recognizing that the " ‘right to petition extends to all departments of the government’ " and
includes access to courts, the Supreme Court extended the doctrine to provide immunity for the
use of " ‘the channels and procedures’ " of state and federal courts to advocate causes. Sosa,
437 F.3d at 929-30 (quoting Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-
11 (1972)).

The Supreme Court has since held that Noerr-Pennington principles "apply with full force in
other statutory contexts" outside antitrust. Id. at 930 (discussing BE & K Constr. Co. v. NLRB,
536 U.S. 516, 525 (2002)). In BE & K, the Court held that the National Labor Relations Act
("NLRA") did not permit holding an employer liable for unsuccessfully prosecuting retaliatory
lawsuits against employees who were exercising rights the NLRA protects. 536 U.S. 516. In
doing so, the Court adopted a three-part test to determine whether the defendant’s conduct is
immunized: (1) identify whether the lawsuit imposes a burden on petitioning rights, (2) decide
whether the alleged activities constitute protected petitioning activity, and (3) analyze whether
the statutes at issue may be construed to preclude that burden on the protected petitioning
activity. See id. at 530-33, 535-37.

[2] Not all petitioning activity is immunized, however. A "sham" exception to the doctrine
developed to prevent the immunization of conduct that used "governmental process . . . as an
anticompetitive weapon." Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998). The
Ninth Circuit has held that a defendant’s activities may fall into this exception if they include
making intentional misrepresentations to the court that then "deprive[s] the litigation of its
legitimacy." Id.

[4] We find that a governmental entity or official may receive Noerr-Pennington immunity for
the petitioning involved in an eminent domain proceeding. The agents of that litigation—
employees and law firms and lawyers—may benefit from the immunity as well. Freeman v.
Lasky, Haas & Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005). Noerr-Pennington may therefore
protect Defendants here.

[7] However, in order to "preserve the breathing space required for the effective exercise of the
rights [the Petition Clause] protects," "conduct incidental to the prosecution of the suit" may
also be immunized under the Noerr-Pennington doctrine. Sosa v. DIRECTV, Inc., 437 F.3d 923,
933-34 (9th Cir. 2004) (internal quotation marks omitted). As the district court noted, this court
has held that discovery is incidental to litigation and comes within the Noerr-Pennington
doctrine if the underlying litigation is protected by the Petition Clause. See Freeman, 410 F.3d
at 1185.

3. Does the sham exception apply to Defendants’ conduct?

[9] In Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1060 (9th Cir. 1998), the Ninth
Circuit identified three circumstances in which the sham litigation exception might apply.
Kearney argues for the third here: where the allegedly unlawful conduct "consists of making
intentional misrepresentations to the court" and those misrepresentations or the "party’s
knowing fraud upon . . . the court deprive the litigation of its legitimacy." Id. We are persuaded
that Defendants’ alleged misconduct here was precisely the sort the sham exception was created
to address.

[10] Since this matter arose on a motion to dismiss, Kearney’s allegations must be assumed
true. Kearney has alleged intentional misrepresentations to the court, and fraud upon the court
through the suppression of evidence, that ultimately led to her property being valued lower than
it should have been. In Sosa v. DIRECTV, Inc., the court described a similar situation of a RICO
suit predicated on "fraudulent discovery conduct in prior litigation that induced the plaintiffs to
settle the suit for a lower amount than they would have in the absence of the fraud." 437 F.3d
923, 940 (9th Cir. 2006) (discussing Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431
F.3d 353 (9th Cir. 2005)). Although Living Designs was not considered under Noerr-
Pennington, the Sosa court said "the conduct alleged quite clearly fell within the third prong of
Kottle’s sham litigation exception, in that it amounted to a ‘knowing fraud . . . upon the court
depriv[ing] the litigation of its legitimacy.’ " Id. (quoting Kottle, 146 F.3d at 1060). Kearney’s
allegations are very similar to those described by the Sosa court in Living Designs and so should
also fall within the third prong of the sham litigation exception. See also Freeman v. Lasky,
Haas & Cohler, 410 F.3d 1180, 1185 (9th Cir. 2005) ("Had [the discovery misconduct] not
been brought to light in time, it is entirely possible that [it] would so have infected the defense
of the lawsuit as to make it a sham.").

The district court found that the exception did not apply because Kearney did not "support[ ] her
position that defendants made intentional misrepresentations to the court thereby depriving the
court of its legitimacy." The requirement of "support" suggests the court was not taking her
allegations as true. At the motion to dismiss stage, it was error to require such support.

[11] We therefore find that the district court erred in holding the sham litigation exception did
not apply to Kearney’s allegations, and remand for consideration of her federal claims.

Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 11/17/1993)

(Id. The author cites two Supreme Court decisions that illustrate the role of attorney actions in
the fraud on the court analysis. Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford
Empire Co., 322 U.S. 238, 88 L. Ed. 1250, 64 S. Ct. 997 (1944), in which the Supreme Court
did find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93 (1878), in which the Court
did not find fraud. While the actions taken in both cases were similar--false documents were put
before the court--the attorney was implicated in Hazel-Atlas as one of the perpetrators, while
the attorney in Throckmorton was not. 7 Moore's Federal Practice at 60- 358-59. See also
Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), where the court of appeals as
part of its finding of no fraud on the court, pointed out that none of the offending party's
attorneys were involved in the alleged fraud. 461 F.2d at 702 n.1.);
http://www.nizkor.org/hweb/people/d/demjanjuk-john/circuit-court/appeal-order-07.html

N.B. Fraud on the court. A scheme to interfere with judicial machinery performing task of
impartial adjudication, as by preventing opposing party from fairly presenting his case or
defense. Finding of fraud on the court is justified only by most egregious misconduct directed to
the court itself such as bribery of a judge or jury to fabrication of evidence by counsel and must
be supported by clear, unequivocal and convincing evidence. In re Coordinated Pretrial
Proceedings in Antibiotic Antitrust Actions, C.A.Minn., 538 F.2d 180, 195. It consists of
conduct so egregious that it undermines the integrity of the judicial process. Stone v. Stone,
Alaska, 647 P.2d 582, 586. Cf. Accessory after the fact; Extrinsic fraud; Void judgments;

Fed.R. Civil P. Rule 60 (Relief from Judgment or Order); ORCP 71 C (Relief from judgment by
other means) (This rule does not limit the inherent power of a court to modify a judgment
within a reasonable time, or the power of a court to entertain an independent action to relieve a
party from a judgment, or the power of a court to grant relief to a defendant under Rule 7
D(6)(f), or the power of a court to set aside a judgment for fraud upon the court.);

Roman Pino v. the Bank of New York, Fl. Sup.Ct. (2012) (At issue is whether a bank can escape
punishment for filing flawed or fraudulent documents in a case by voluntarily dismissing it. (A
voluntary dismissal allows the bank to refile at a later date.) The technical question the justices
want to answer is whether a trial court has the authority to overturn a voluntary dismissal where
a borrower's motion to overturn alleges the lender committed a fraud on the court.);
http://www.palmbeachpost.com/money/foreclosures/florida-supreme-court-hearing-greenacres-
foreclosure-appeal-today-2349360.html?viewAsSinglePage=true

U.S. v. Milovaovic, No. 08-30381 (9th Cir. 04/24/2012) (Limiting fraud, for the purposes of the
Mail Fraud Statute, only to deprivation of property or money would fail to "acknowledge[ ] the
reality of fraud, a crime of extraordinary variety, limited only by human imagination." Id. at 155
(Raggi, J., concurring) (citing United States v. Altman, 48 F.3d 96, 102 (2d Cir. 1995) ("holding
that fraud needs no definition: ‘it is as old as falsehood and as versable as human ingenuity’ ")).
http://www.ca9.uscourts.gov/datastore/opinions/2012/04/24/08-30381.pdf

U.S. v. Stonehill, No. 10-35789 (9th Cir. 09/28/2011) (In an appeal from a judgment of the
district court’s denying taxpayers' Rule 60(b) motion to vacate a 1967 tax judgment against
them on the basis of fraud by the government, judgment is affirmed because although
intervening evidence shows some misconduct on the part of the government, the evidence is
insufficient to demonstrate fraud on the court, and where taxpayers' Throckmorton claim fails.);
http://www.ca9.uscourts.gov/datastore/opinions/2011/09/28/10-35789.pdf

Kearney v. Foley & Lardner, LLP, No. 07-55566 (9th Cir. 05/12/2009) ([10] Since this matter
arose on a motion to dismiss, Kearney’s allegations must be assumed true. Kearney has alleged
intentional misrepresentations to the court, and fraud upon the court through the suppression of
evidence, that ultimately led to her property being valued lower than it should have been. In
Sosa v. DIRECTV, Inc., the court described a similar situation of a RICO suit predicated on
"fraudulent discovery conduct in prior litigation that induced the plaintiffs to settle the suit for a
lower amount than they would have in the absence of the fraud." 437 F.3d 923, 940 (9th Cir.
2006) (discussing Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353 (9th Cir.
2005)). Although Living Designs was not considered under Noerr-Pennington, the Sosa court
said "the conduct alleged quite clearly fell within the third prong of Kottle’s sham litigation
exception, in that it amounted to a ‘knowing fraud . . . upon the court depriv[ing] the litigation
of its legitimacy.’ " Id. (quoting Kottle, 146 F.3d at 1060). Kearney’s allegations are very
similar to those described by the Sosa court in Living Designs and so should also fall within the
third prong of the sham litigation exception. See also Freeman v. Lasky, Haas & Cohler, 410
F.3d 1180, 1185 (9th Cir. 2005) ("Had [the discovery misconduct] not been brought to light in
time, it is entirely possible that [it] would so have infected the defense of the lawsuit as to make
it a sham."). The district court found that the exception did not apply because Kearney did not
"support[ ] her position that defendants made intentional misrepresentations to the court thereby
depriving the court of its legitimacy." The requirement of "support" suggests the court was not
taking her allegations as true. At the motion to dismiss stage, it was error to require such
support. [11] We therefore find that the district court erred in holding the sham litigation
exception did not apply to Kearney’s allegations, and remand for consideration of her federal
claims. http://caselaw.lp.findlaw.com/data2/circs/9th/0755566p.pdf

Nicaraguan Workers v. Dole, 04/25/2009 (California judge dismisses suits against Dole, rules
lawyers committed fraud):
http://www.boston.com/news/nation/articles/2009/04/25/california_judge_dismisses_suits_agai
nst_dole_rules_lawyers_committed_fraud

Navarro-Lopez v. Gonzales, No. 04-70345 (9th Cir. 07/31/2006) (Because an accessory after
the fact conviction under Cal. Penal Code section 32 requires a knowing, affirmative act to
conceal a felony with the specific intent to hinder or avoid prosecution of the perpetrator, it is
contrary to the duties owed society and constitutes a crime of moral turpitude.);
http://caselaw.lp.findlaw.com/data2/circs/9th/0470345p.pdf

Kougasian v. TMSL, Inc., No. 02-56781 (9th Cir. 02/26/2004) (The Rooker-Feldman doctrine
does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for
extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that
fraud. Because plaintiff asserts no legal error by the state court, the district court erred in
dismissing her appeal on Rooker-Feldman grounds.);
http://caselaw.lp.findlaw.com/data2/circs/9th/0256781p.pdf

Dixon v. Comm’r. of Internal Revenue, No. 00-70858 (9th Cir. 01/17/2003) (Courts possess the
inherent power to vacate or amend a judgment obtained by fraud on the court, Toscano v. CIR,
441 F.2d 930, 933 (9th Cir. 1971), but that power is narrowly construed, applying only to fraud
that defiles the court or is perpetrated by officers of the court. When we conclude that the
integrity of the judicial process has been harmed, however, and the fraud rises to the level of
"an unconscionable plan or scheme which is designed to improperly influence the court in its
decisions," we not only can act, we should. England, 281 F.2d at 309; Levander v. Prober, 180
F.3d 1114, 1119 (9th Cir. 1999); Intermagnetics Am., Inc. v. China Int’l Trust and Inv. Corp.,
926 F.2d 912, 916-17 (9th Cir. 1991).
http://caselaw.lp.findlaw.com/data2/circs/9th/0070858p.pdf

United States v. Morales, No. 02-50154 (9th Cir. 05/16/2003) (The district court did not have
jurisdiction to modify or vacate a sentence imposing a fine on a former IRS agent after
convictions for acceptance of bribes.);
http://caselaw.lp.findlaw.com/data2/circs/9th/0250154p.pdf

Iturribarria v. Immigration & Naturalization Serv., No. 02-70003 (9th Cir. 03/04/2003) (Where
the ineffective performance was that of an actual attorney and the attorney engaged in
fraudulent activity causing an essential action in her client’s case to be undertaken ineffectively,
out of time, or not at all, equitable tolling is available. Rodriguez-Lariz v. INS, 282 F.3d 1218
(9th Cir. 2002); http://caselaw.lp.findlaw.com/data2/circs/9th/0270003p.pdf

Prople of the Philippines v. Acelo Verra, G.R. No. 134732 (May 29, 2002) ("Where the
unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception
practiced on him by his opponent, as by keeping him away from court, a false promise of a
compromise; or where the defendant never had knowledge of the suit, being kept in ignorance
by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to
represent a party and connives at his defeat; or where the attorney regularly employed corruptly
sells out his client’s interest to the other side -- these, and similar cases which show that there
has never been a real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul a former judgment or decree, or open the case for a new
and fair hearing. See, Wells, Res Judicata, sec 499; Pearce v. Olney, 20 Conn., 544; Wierich v.
De Zoya, 7 Ill., (2 Gilm.) 385; Kent v. Richards, 3 Md. Ch., 396; Smith v. Lowry, 1 Johns. Ch.,
320; De Louis v. Meek, 2 Green (Iowa), 55. "In all these cases and many others which have
been examined, relief has been granted on the ground that, by some fraud practiced directly
upon the party seeking relief against the judgment or decree, that party has been prevented from
presenting all of his case to the court.");
http://www.supremecourt.gov.ph/jurisprudence/2002/may2002/134732.htm#_ednref10

Fink v. Gomez, No. 99-56139 (9th Cir. 02/08/2001) (Courts possess the inherent power to
vacate or amend a judgment obtained by fraud on the court);
http://laws.findlaw.com/9th/9956139.html

Avant! Corp. v. Superior Court, No. H019847, 79 Cal.App.4th 876 (04/06/2000) (There is no
immunity for committing federal fraud by trickery and deceit.);

Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 11/17/1993) (Id. The author cites two Supreme
Court decisions that illustrate the role of attorney actions in the fraud on the court analysis.
Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 88
L. Ed. 1250, 64 S. Ct. 997 (1944), in which the Supreme Court did find fraud, and U.S. v.
Throckmorton, 98 U.S. 61, 25 L. Ed. 93 (1878), in which the Court did not find fraud. While
the actions taken in both cases were similar--false documents were put before the court--the
attorney was implicated in Hazel-Atlas as one of the perpetrators, while the attorney in
Throckmorton was not. 7 Moore's Federal Practice at 60- 358-59. See also Serzysko v. Chase
Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), where the court of appeals as part of its finding
of no fraud on the court, pointed out that none of the offending party's attorneys were involved
in the alleged fraud. 461 F.2d at 702 n.1.); http://www.nizkor.org/hweb/people/d/demjanjuk-
john/circuit-court/appeal-order-07.html

Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 251, 88 L. Ed. 1250, 64 S. Ct. 997
(1944) (No fraud is more odious than an attempt to subvert the administration of justice. ...
Furthermore, tampering with the administration of justice in the manner indisputably shown
here involves far more than an injury to a single litigant. It is a wrong against the institutions set
up to protect and safeguard the public, institutions in which fraud cannot complacently be
tolerated consistently with the good order of society.); http://laws.findlaw.com/us/322/238.html

U.S. v. Throckmorton, 98 U.S. 61, 64, 25 L. Ed. 93 (1878) (There is no question of the general
doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.);
http://www.justia.us/us/98/61/case.html

Void: Bouvier’s Law Dictionary, 6th Ed. (C.&P.1856) (When the contract is fraudulent, it is
void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352.);

It has often, indeed, been declared by this court that the fraud which entitles a party to impeach
the judgment of one of our own tribunals must be fraud extrinsic to the matter tried in the cause,
and not merely consist in false and fraudulent documents or testimony submitted to that
tribunal, and the truth of which was contested before it and passed upon by it. U. S. v.
Throckmorton, 98 U.S. 61, 65, 66; Vance v. Burbank, 101 U.S. 514, 519; Steel v. Refining Co.,
106 U.S. 447, 453, 1 Sup. Ct. 389; Moffat v. U.S., 115 U.S. 24, 32, 5 Sup. Ct. 10; U.S. v.
Minor, 114 U.S. 233, 242, 5 Sup. Ct. 836.
http://66.102.7.104/search?q=cache:6qD3GFFEXlUJ:law.wustl.edu/Students/Courses/Haley/Sp
ring2005/Transnational/TransLitChapter5-2002.pdf+U.S.+v.+Throckmorton&hl=en

Restatement (Second) of Torts § 766 (Intentional Interference), comments k, § 767, Comment c

(Tent. Draft No. 23, 1977) (Commonly included among improper means are violence, threats or
other intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation, or
disparaging falsehood. See Fleming, [The Law of Torts], at 612-14 [(4th ed 1971)]; Prosser,
[Handbook of the Law of Torts], § 129, at 936-937 [(4th ed 1971)]: The Law of Fraudulent
Transactions, by Alces (Thomson-West 2006); and that class of authority, infra:

Restatement Third, The Law Governing Lawyers § 1(c) (The inherent powers of courts) (The
highest courts in most states have ruled as a matter of state constitutional law that their power to
regulate lawyers is inherent in the judicial function. Thus, the grant of judicial power in a state
constitution devolves upon the courts the concomitant regulatory power. The power is said to
derive both from the historical role of courts in the United States in regulating lawyers through
admission and disbarment and from the traditional practice of courts in England. See, e.g., C.
Wolfram, Modern Legal Ethics § 2.2 (1986); ABA/BNA Law. Manual Prof. Conduct §§
201:1O1-109 (1996); Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801 (1992);
Wolfram, Lawyer Turf and Lawyer Regulation -- The Role of the Inherent—Powers Doctrine,
12 U. Ark. Little Rock L.J. 1 (1989); Gressman, Inherent Judicial Power and Disciplinary Due
Process, 18 Seton Hall L. Rev. 541 (1988); Alpert, The Inherent Power of the Courts to
Regulate the Practice of Law: An Historical Analysis, 32 Buffalo L. Rev. 525 (1983));

Restatement Third, The Law Governing Lawyers § 5(c) (Conduct involving dishonesty, fraud,
deceit or misrepresentation) (General provisions of lawyer codes) (Modern lawyer codes
contain one or more provisions (sometimes referred to as "catch-all" provisions) stating general
grounds for discipline, such as engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation" (ABA Model Rules of Professional Conduct, Rule 8.4(c) (1983)) or "in
conduct that is prejudicial to the administration of justice" (id. Rule 8.4(d)). Such provisions are
written broadly both to cover a wide array of offensive lawyer conduct and to prevent attempted
technical manipulation of a rule stated more narrowly. On conduct involving "dishonesty, fraud,
deceit or misrepresentation," see, e.g., In re West, 805 P.2d 351, 354 (Alaska 1991) (counseling
wife of deceased client in making false signature of client’s name and verifying signature as
notary); Maryland St. Bar Ass’n v. Agnew, 318 A.2d 811 (Md.1974) (willful tax evasion);
Welts’ Case, 620 A.2d 1017 (N.H.1993) (misrepresentation alone suffices as offense); In re
Benson, 854 P.2d 466 (Or.1993) (drafting false lien documents on client’s property in favor of
brother to provide advance warning, through expected inquiry by police directed to brother, of’
possible state intent to obtain forfeiture of property owned outright). The decisions conflict on
whether a dishonesty violation can be shown without demonstrating the lawyer’s intent.
Compare, e.g., Colorado v. Franco, 698 P.2d 230 (Colo.1985) (intent not required; reckless
conduct suffices); In re Griffith, 748 P.2d 103 (Or.1987) (same), with, e.g., In re West, 805 P.2d
351, 353 (Alaska 1991) (limited to "intentional acts of misconduct"); In re Pelesinger, 598
N.Y.S.2d 218, 220 (N.Y.App. Div. 1993) (requires evidence of "venal intent"); Bar Ass’n v.
Todd, 833 P.2d 260, 263—64 (Okla. 1992) (requires showing of "bad or evil intent or its legal
equivalent"). Consistent with its approach on other catch-all provisions, the Oregon Supreme
Court has attempted to define the specified types of dishonesty separately. See In re Hiller, 694
P.2d 540 (Or.1985));

Restatement Third, The Law Governing Lawyers § 8 (e) (Responsibility as an accomplice) (Two
elements are generally necessary (see Model Penal Code § 2.06(3)) for accomplice culpability
on the part of a lawyer (in addition to unusual situations in which criminal law expressly
declares a lawyer’s conduct to be complicity (see id. § 2.06(3)(b))). First, the lawyer must act
with the purpose of promoting or facilitating the commission of the other’s offense (see id. §
2.06(3)(a)). Second, one of the three following conditions must describe the lawyer’s conduct:
soliciting the client or other person to commit the offense; aiding or agreeing or attempting to
aid the person in planning or committing the offense; or, having a legal duty to prevent the
commission of the offense, failing to make a proper effort to do so (see id. § 2.06(3)(a)(i)-(iii)).

N.B. Declaratory Judgment Act. Federal statute enacted in 1934 which permits bringing of
complaint for a declaration of rights if there is an actual controversy between the parties. The
judgment is binding as to present and future rights of the parties to the action. Cf. Fed.R.Civil P.
57 (Declaratory Judgments); 28 U.S.C. § 2201 (Creation of remedy); ORS 28.010 (Power of
courts; form of declaration); ORS 28.020 (Declarations as to writings and laws);

Declatory judgments do not seek damages: https://www.bfvlaw.com/wp-

content/uploads/2016/12/Weinrich-Declaratory-Judgment-Actions.pdf ...

https://en.wikipedia.org/wiki/Declaratory_judgment ...

http://apps.americanbar.org/litigation/committees/insurance/articles/mayjune2014-declaratory-
judgment-underlying-action.html ... http://www.federalpracticemanual.org/chapter9/section3 ...

https://legal-dictionary.thefreedictionary.com/declaratory+judgment ...

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3413&context=dlj ...

https://www.linkedin.com/pulse/improper-use-declaratory-judgments-under-texas-udja-j-cottle
...

http://www.libertylawsite.org/2014/03/25/declaratory-judgment-as-a-quasi-injunction/ ...

https://www.lexology.com/library/detail.aspx?g=33fd5e34-0f08-49ee-b167-62ed3e3ce4dd ...

https://www.crowell.com/documents/docassocfktype_articles_478.pdf