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March 12, 2026 Get Citation Alerts Download PDF Add Note

In re Ersoff

Oregon Supreme Court

• Citations: 375 Or. 43
• Docket Number: S071643

• Disposition: The complaint is dismissed.

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.8K)

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Disposition

The complaint is dismissed.

Combined Opinion

No. 14 March 12, 2026 43

IN THE SUPREME COURT OF THE
STATE OF OREGON

In re Complaint as to the Conduct of
ISAAC ERSOFF
OSB No. 952600,
Respondent.
(OSB 23111) (SC S071643)

En Banc
On review of the decision of a trial panel of the Disciplinary
Board.*
Argued and submitted September 25, 2025.
Theodore William Reuter, Reuter Corbett, LLP, Hillsboro,
argued the cause and filed the brief for respondent.
Alison Wilkinson, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the briefs on behalf of the Oregon
State Bar.
PER CURIAM
The complaint is dismissed.

---

• Trial panel opinion dated December 5, 2024. 44 In re Ersoff Cite as 375 Or 43 (2026) 45

PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar charged respondent with violating several Rules
of Professional Conduct (RPC) when he filed a probate peti-
tion that alleged a decedent had “died intestate” but did not
state that the decedent had executed a possibly valid will—
one that respondent was contesting in another case pending
in the same circuit court. The Bar alleged that respondent’s
conduct violated RPC 3.3(a)(1) (knowingly making a false
statement of fact or law to a tribunal or failing to correct
a false statement); RPC 3.3(a)(4) (knowingly concealing or
failing to disclose to a tribunal that which the lawyer is
required by law to reveal); and RPC 8.4(a)(4) (engaging in
conduct prejudicial to the administration of justice).
A trial panel of the Disciplinary Board determined
that the Bar had failed to prove those allegations. The
trial panel emphasized that probate law defines “intestate”
as referring to a person “who dies without leaving a valid
will,” ORS 111.005(20) (emphasis added), and it found that
respondent believed he was asserting a plausible legal posi-
tion when he represented that decedent had “died intestate.”
The trial panel also was persuaded that respondent satis-
fied his obligation to disclose the existence of the contested
will by filing a challenge to that will in the same court. The
Bar sought review of the trial panel’s decision. Reviewing
the record de novo, see Bar Rule of Procedure (BR) 10.6, we
conclude that the Bar failed to prove any of the alleged vio-
lations by clear and convincing evidence.
We agree with the trial panel that the Bar failed
to prove that respondent made a false statement when he
asserted that decedent “died intestate,” because the term
“intestate” refers to the legal status of having died without
a valid will and the validity of the 2017 will was an open
question that respondent was actively contesting in the
same circuit court. We conclude, however, that respondent’s
statement that decedent “died intestate” was potentially
misleading and that respondent was legally obligated to
disclose—to the judge considering the probate petition—
the information that decedent had died with a will that
respondent was challenging. But—under the particular
46 In re Ersoff

circumstances of this case—we are not persuaded that
respondent knew that his filing of the pending challenge
to the will in the same circuit court probate department
was insufficient to put that information before the judge
who would be considering the petition to open the intes-
tate estate. Accordingly, we conclude that the Bar failed to
prove that respondent knowingly failed to satisfy his disclo-
sure obligation, as required to establish a violation of RPC
3.3(a)(1) or RPC 3.3(a)(4). We also conclude that the Bar failed
to prove that respondent violated RPC 8.4(a)(4), because the
Bar has not persuaded us—again under the circumstances
of this particular case—that respondent’s lack of disclo-
sure had the potential to cause substantial prejudice to the
administration of justice, as required for a single incident of
improper conduct.
I. BACKGROUND
The following facts are undisputed. Respondent
was admitted to the Oregon State Bar in 1995, but he was
on inactive status between 1999 and 2012. Beginning in
2012, respondent initially handled a variety of civil matters
but eventually focused his work on estate planning.
Respondent agreed to represent an individual,
Montre, in litigation regarding the validity of estate docu-
ments executed by Montre’s recently deceased mother (dece-
dent). Montre had been named executor of decedent’s estate
in a will prepared in 2017. The will directed all of decedent’s
assets to a trust, of which Montre initially was the trustee
and primary beneficiary. Montre was decedent’s sole surviv-
ing child. Her other son had predeceased her and the will
expressly disinherited that son’s children.
In early 2020, decedent had moved to Oregon to live
with her granddaughter, Arguelles, who was a child of her
deceased son and Montre’s niece. Around that time, decedent
had executed a restatement of her trust (2020 trust restate-
ment), which named Arguelles as trustee upon decedent’s
death. The 2020 trust restatement also expressed decedent’s
intent to buy a house in Oregon and, upon decedent’s death,
to leave the house to Arguelles. Decedent then had purchased
a home in McMinnville, through a deed listing the trustee of
Cite as 375 Or 43 (2026) 47

decedent’s trust as owner of the property. This house was
decedent’s only asset for probate at the time of her death.
Montre told respondent that decedent had been
diagnosed with dementia in 2016, and he shared other
information that led respondent to believe that decedent’s
restatement of her trust in 2020 had been the product of
undue influence and that, even when decedent originally
created the trust and executed the 2017 will, she had likely
lacked capacity to create a valid trust or will due to the
dementia.
Respondent prepared a single pleading to be filed in
Yamhill County Circuit Court that combined the following:
a petition to contest the 2020 trust restatement; a petition to
contest the 2017 will and original trust creation; and a peti-
tion to open administration of decedent’s estate as an “intes-
tate estate” and appoint Montre as personal representative.
Respondent testified that he wanted to open a probate for
decedent’s estate because, if the judge determined that the
trust was not validly created, “the assets, if any, had to go
somewhere”; he expected, however, that the probate case
“was just going to sit there” until the validity of the trust
was resolved, because all of decedent’s assets were currently
held by the trust.1 Respondent also testified that he decided
to petition for administration of an “intestate” estate, rather
than to probate the 2017 will, because the former course of
action was consistent with his position in the litigation that
the will was not valid, and because Montre was the desig-
nated personal representative either way.
But respondent ultimately did not file the combined
pleading, because respondent’s assistant advised him that
the court had instructed her to file the estate administration
petition as a separate case. Therefore, respondent created
and filed two separate pleadings. First, he filed a petition
that challenged the 2020 trust restatement as the product
of undue influence and lack of testamentary capacity and,
1
All of the estate assets were held in trust, so there would be no assets to
probate unless respondent prevailed in the trust contest matter and the trust was
determined to be invalid. Respondent’s challenge to decedent’s trust included his
challenge that her 2020 trust restatement was the product of undue influence
and lack of testamentary capacity and his alternative challenge that she lacked
capacity to create a valid trust in 2017.
48 In re Ersoff

alternatively, challenged the 2017 will and original trust cre-
ation as invalid for lack of testamentary capacity (“the trust-
and-will-contest case”). The next day he filed the petition for
administration of an “intestate estate” and appointment of
Montre as personal representative (“the probate case”).2 Both
pleadings were captioned as filed in the “probate department”
of the Yamhill County Circuit Court but were assigned dif-
ferent case numbers and did not cross-reference each other.
Respondent attached the 2017 will to the petition that he
filed in the trust-and-will-contest case, but he did not attach
or include any mention of the 2017 will or his challenge to it
in the probate case.
Judge Collins was promptly assigned to the probate
case, and he signed a limited judgment that opened admin-
istration of the “intestate” estate and appointed Montre as
the personal representative. He later was briefly assigned
to the trust-and-will-contest case, but he did not recall if he
was aware of that case at the time that he signed the limited
judgment in the probate case.
The first week of February 2021, respondent spoke
with Arguelles’s attorney, Hamilton, to convey an offer of
settlement in the trust-and-will-contest case. In addition to
discussing settlement, the parties discussed respondent’s
allegations in the probate case. That discussion features
prominently in the Bar’s argument that respondent knew
he needed to disclose the will in the probate case, but the
evidence of what was said is conflicting.
Hamilton testified that, during the conversation,
he told respondent that he had fortuitously learned of the
probate case and that he did not think respondent should
have filed a petition to administer an “intestate” estate,
especially without mentioning the existence of a potentially
valid will. Hamilton believed that respondent had agreed
to file an amended intestate petition disclosing the will.
Respondent testified, however, that he had simply agreed to
send the probate judge a letter to make sure that the judge
2
In challenging the original trust document as an alternative to the chal-
lenge to the 2020 trust restatement, respondent appears to have assumed that
a favorable ruling on either challenge would result in the trust assets being
released to pass through probate as assets of the estate. Whether respondent was
correct about that point is beyond the scope of the case before us.
Cite as 375 Or 43 (2026) 49

was aware of the related case involving the validity of the
will. According to respondent, Hamilton “in no way con-
veyed” any concern about that approach, and he was wait-
ing to hear back about the settlement offer before writing
to the judge. Respondent’s contemporaneous notes and an
email that he sent to his client later that same day reflect
that he made the settlement offer and that the parties dis-
cussed their respective positions as to the trust-and-will-
contest case, but they do not mention the probate case at
all or include a timeline for bringing the will challenge to
the attention of Judge Collins, who continued to handle the
probate case.
When several weeks had passed without respon-
dent’s firm filing an amended probate petition or other
communication to disclose the challenged will in the pro-
bate case, Hamilton complained to the Bar about respon-
dent.3 When respondent learned of Hamilton’s complaint
to the Bar, his firm promptly filed a notice with the court
that respondent’s law partner, Zantello, was substituting as
Montre’s counsel in the probate case. Respondent testified
that he had told Zantello about his plan to submit a letter
explaining the existence of the challenged will but that
Zantello preferred to put that information in an amended
probate petition, which he filed at the end of March.
Respondent had learned of Hamilton’s complaint
through an email from an attorney in the Bar’s Client
Assistance Office, who explained that his role was to
determine whether there was sufficient basis to refer the
complaint to Bar Disciplinary Counsel. In an immediate
response to that email, respondent explained: “Perhaps
my understanding is incorrect, but my thinking was that
the probate case would be put on hold until the outcome of
the other case—that is, the contest of the Will and Trusts.
Therefore, I submitted the petition for probate as would
be appropriate in the event that my client prevails on the
contest case.” Respondent represented that he had told
3
Hamilton testified that he had initially called the ethics hotline at the Bar
for advice and been told that he was obligated to file a complaint against respon-
dent. Respondent pointed to testimony from a Bar counsel who had worked on the
ethics hotline that it would be “unusual” to tell an attorney what they “must do”
during a discussion on the ethics hotline.
50 In re Ersoff

Hamilton he would send the court a letter to explain the
existence of the challenged will and “that the outcome of the
separate adjudication would determine whether or not the
decedent died intestate.” In addition, he stated in the email
that he believed his approach was “appropriate” and that he
“did not intend to mislead the court or withhold information
from the court.” Nevertheless, respondent indicated that he
was “more than willing” to take the approach preferred by
Hamilton if the Bar’s attorney thought that respondent’s
approach had been incorrect.
A few other facts are pertinent. In an objection
to the amended probate petition, Hamilton alleged that
decedent had executed a new will in 2020 that assigned
all her assets to the restated trust but named Arguelles
as personal representative. Therefore, Hamilton argued,
Montre should be removed as personal representative and
Arguelles appointed instead.4 Zantello responded to that
objection by proposing that the “intestate” probate case
should be converted to a probate of the 2017 will—because
he contended that the 2020 will was the product of undue
influence—and that the court should retain Montre as per-
sonal representative pursuant to the direction in the 2017
will. Judge Collins entered a new limited judgment, admit-
ting the 2017 will to probate and again appointing Montre
as personal representative of decedent’s estate. Ultimately,
the court consolidated the two cases, Montre withdrew his
challenge to decedent’s testamentary capacity in 2017, and
the remaining issue of undue influence over decedent’s
2020 estate documents was resolved in favor of Arguelles,
although the judge’s opinion described that as a “difficult
decision.”
The Bar filed a formal complaint against respon-
dent alleging that respondent’s conduct violated three dif-
ferent Oregon Rules of Professional Conduct: RPC 3.3(a)(1),
which prohibits knowingly making or failing to correct “a
4
The trial panel expressly found that respondent was not aware of the 2020
will during the time frame at issue. The Bar does not here challenge that finding,
and we agree with it, because respondent’s actions in challenging the 2017 will
and 2020 trust restatement suggest that he would have added a challenge to the
2020 will if he were aware of it. Thus, except as specifically indicated in this opin-
ion, the existence of the 2020 will is not pertinent to our analysis of the charges
against respondent.
Cite as 375 Or 43 (2026) 51

false statement of fact or law” made “to a tribunal”; RPC
3.3(a)(4), which prohibits knowingly failing “to disclose to a
tribunal that which the lawyer is required by law to reveal”;
and RPC 8.4(a)(4), which prohibits “conduct that is prejudi-
cial to the administration of justice.” The trial panel unani-
mously concluded that the Bar had failed to prove any of the
alleged violations and dismissed the charges, and the Bar
has sought review of that decision.
II. ANALYSIS
Before this court, the Bar challenges the trial panel’s
findings and conclusions, contending that respondent com-
mitted all the alleged rule violations and should receive, as
a sanction, a 60-day suspension from the practice of law.
The Bar’s arguments focus our analysis on three discrete
inquiries: First, whether respondent knowingly made a false
statement of fact or law in violation of RPC 3.3(a)(1) when he
filed a petition for “intestate” administration despite knowing
that decedent had executed a will in 2017; second, whether
respondent knowingly misrepresented or failed to disclose a
material fact when he failed to at least clarify the assertion
that decedent “died intestate” by disclosing—in the probate
case—the challenged will, in violation of both RPC 3.3(a)(1)
and RPC 3.3(a)(4); and finally, whether those acts and omis-
sions—even if not knowingly misleading or knowingly con-
trary to respondent’s disclosure obligation—resulted in sub-
stantial actual or potential prejudice to the administration of
justice, in violation of RPC 8.4(a)(4).
In lawyer disciplinary proceedings, the Bar must
prove each violation by “clear and convincing evidence”—
meaning that “the truth of facts asserted is highly proba-
ble.” BR 5.2; In re Nisley, 365 Or 793, 801, 453 P3d 529 (2019)
(internal quotation omitted). Reviewing the record de novo,
see BR 10.6, we conclude that the Bar failed to prove by clear
and convincing evidence that respondent acted “knowingly,”
as required for violations of RPC 3.3(a)(1) and RPC 3.3(a)(4).
We also conclude that the Bar failed to prove that respon-
dent’s conduct was prejudicial to the administration of jus-
tice, as required for a violation of RPC 8.4(a)(4).
52 In re Ersoff

A. Whether the Bar Proved that Respondent’s Representation
that Decedent Died Intestate Violated RPC 3.3(a)(1)
We begin with the Bar’s allegation that respondent
violated RPC 3.3(a)(1) by filing a petition that asserted dece-
dent had “died intestate.” That rule provides that “[a] lawyer
shall not knowingly * * * make a false statement of fact or law
to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer[.]”
RPC 3.3(a)(1). The Bar maintains that respondent knew
that decedent had executed a “facially valid will” in 2017 (as
established by his challenge to that will in the trust-and-will-
contest case), and therefore, respondent knew that filing a
petition to administer an “intestate” estate falsely repre-
sented that decedent had died without a will. Respondent,
for his part, does not dispute that he knew about the 2017
will when he filed the petition to administer an “intestate”
estate. But he asserts that whether decedent died intestate
is a legal conclusion that depended on whether she had a
valid will. See ORS 111.005(20) (defining “intestate” as
meaning “one who dies without leaving a valid will”); see
also Black’s Law Dictionary 984 (11th ed 2019) (“intestate”
means “[o]f, relating to, or involving a person who has died
without a valid will”). And he asserts that he took a plausi-
ble legal position in contending that decedent died intestate,
given the pending challenge to the validity of the will, and
therefore did not knowingly make a false statement.5
The trial panel agreed with respondent that “intes-
tate” refers to dying without leaving a valid will and, thus,
that respondent was pleading a plausible legal theory—not
making a knowingly false statement—when he represented
that decedent had “died intestate.” Moreover, because the
allegation that decedent “died intestate” was not false, the
trial panel reasoned that RPC 3.3(a)(1) imposed no obliga-
tion on respondent to correct that statement.

5
The Bar emphasizes that dementia does not preclude a person from pos-
sessing testamentary capacity and criticizes respondent for relying entirely on
what he learned from Montre about decedent’s testamentary capacity in 2017.
But that argument goes to the merits of respondent’s legal position in the trust-
and-will-contest case, which is not before us, and not whether respondent knew
that decedent’s 2017 will was valid.
Cite as 375 Or 43 (2026) 53

On de novo review, we conclude that the Bar did
not prove by clear and convincing evidence that respondent
knowingly made a false statement to the court when he filed
a probate petition stating that decedent had “died intes-
tate,” because the statement describes respondent’s good
faith legal position that decedent died without a valid will.
As our disciplinary cases illustrate, there is an important
distinction between a false statement of fact or law and a
good faith assertion of a legal position on an open question.
For an example of the former, the lawyer in the case of In
re Boardman, 312 Or 452, 822 P2d 709 (1991), had repre-
sented that his client was the personal representative of
an estate despite knowing that another person had been
appointed personal representative and that the probate
court had refused to remove that other person as personal
representative. Id. at 454-55. We rejected as “immaterial”
the attorney’s belief that his client was legally entitled to
be the personal representative, because the attorney “knew
that he was misrepresenting the facts as they existed at the
time.” Id. at 456.
We reached a similar conclusion in In re Paulson,
346 Or 676, 216 P3d 859 (2009), adh’d to as modified on
recons, 347 Or 529 (2010), in which we held that a lawyer
had violated RPC 3.3(a)(1) when he supported motions to
postpone trials or hearings in pending matters with a dec-
laration representing that his six-month disciplinary sus-
pension was “on appeal,” because, as of the date of those
representations, this court had already issued its decision
imposing the suspension and denied a petition for recon-
sideration, and the appellate judgment had issued. Id. at
697-98. We acknowledged that the lawyer had apparently
intended to seek discretionary review by the United States
Supreme Court, but we emphasized that the representation
that the suspension was “on appeal” was “patently not true,”
because, on the date of that representation, the suspension
had become effective and “no appellate proceeding was
pending.” Id.
We reached a different conclusion, however, when a
lawyer asserted a plausible position regarding a legal con-
clusion that remained an open question. In In re Marandas,
54 In re Ersoff

351 Or 521, 270 P3d 231 (2012), the lawyer repeatedly
had stated that a confidentiality provision in a settlement
agreement prohibited him from disclosing the terms of
the agreement. Id. at 530. The trial panel interpreted the
agreement as not binding the lawyer to confidentiality and,
thus, concluded that the lawyer’s statements were know-
ingly false representations. Id. But this court disagreed
with that approach. Without deciding whether the trial
panel’s interpretation of the agreement was correct, this
court held that the lawyer had not made a knowingly false
statement of law, because he had a plausible legal argu-
ment in support of his assertion about an open question.
Id. at 533.
Here, the Bar acknowledges that whether decedent
died intestate is a legal conclusion that depends on whether
she died with a valid will. And, although Zantello later with-
drew Montre’s challenge to the validity of the 2017 will and
accordingly amended the probate petition, the will’s validity
was an open question and the subject of active litigation in
the same circuit court until then. As in Marandas, we con-
clude that respondent had a plausible legal argument that
decedent died without a valid will and, therefore, “died intes-
tate.”6 Because that legal question had yet to be resolved, the
Bar has not persuaded us that respondent knowingly made
a false statement in asserting that decedent “died intestate”
when he filed the petition to administer her estate. Moreover,
the Bar has not proven that respondent knowingly failed
to correct that purportedly false statement. As indicated
above, whether decedent died with a valid will or intestate
remained an open question, subject to the pending litiga-
tion, at least until Zantello withdrew that challenge. And he
did so by simultaneously amending the probate petition to
no longer allege that decedent “died intestate.” Accordingly,
the Bar failed to prove that respondent violated RPC 3.3(a)
(1) by alleging that decedent “died intestate.” But that does
not end the inquiry.

6
We note that our decision turns on the fact that the allegedly false repre-
sentation was that the decedent “died intestate,” an open legal proposition; had
respondent had affirmatively stated that decedent died without a will, that would
be a false statement of fact.
Cite as 375 Or 43 (2026) 55

B. Whether the Bar Proved that Respondent’s Failure to
Disclose the 2017 Will in the Probate Case Violated
RPC 3.3(a)(1) or RPC 3.3(a)(4)
The Bar also contends that even if the representa-
tion that decedent “died intestate” was not, itself, a know-
ingly false statement, respondent’s failure to disclose the
2017 will when he filed the intestate petition created a
false impression that amounted to a false statement that
respondent was legally obligated to correct. His failure to
do so, the Bar alleges, violated both RPC 3.3(a)(1) and RPC
3.3(a)(4). The Bar is correct that respondent’s failure to dis-
close the 2017 will in the probate matter raises different
concerns under the disciplinary rules than his statement
that decedent “died intestate.” But we ultimately conclude
that the Bar failed to prove that respondent’s failure to dis-
close the will amounted to a violation of either RPC 3.3(a)(1)
or RPC 3.3(a)(4).
As set out above, a lawyer violates RPC 3.3(a)(1) by
knowingly making, or failing to correct, “a false statement
of law or fact” made “to a tribunal.” A material omission can
make a statement false for purposes of RPC 3.3(a)(1). See In
re Kluge, 335 Or 326, 340, 66 P3d 492 (2003) (emphasizing,
under former disciplinary rules, that a misrepresentation
can be “either an affirmative misstatement or an omission”);
In re Greene, 290 Or 291, 298, 620 P2d 1379 (1980) (also
under former disciplinary rules, observing that “[a] half-
truth or silence can be as much a misrepresentation as a
lie”). In addition, RPC 3.3(a)(4) states that a “lawyer shall
not knowingly * * * conceal or fail to disclose to a tribunal
that which the lawyer is required by law to reveal[.]”
The Bar contends that the allegation that decedent
“died intestate” could readily be understood as an allegation
that she died without any will and, thus, that the existence
of a will that respondent contended was invalid was a mate-
rial fact that respondent was required by controlling law
to reveal to the judge evaluating the probate petition. We
agree. The Bar relies on the Court of Appeals’ statement in
Reynolds v. Givens, 37 Or App 785, 791, 588 P2d 113 (1978),
an attorney fee case, that, “[e]ven if an attorney and the pro-
posed personal representative [had] doubts about the validity
56 In re Ersoff

of the will[,] there is no justification for failing to disclose to
the court the existence of a purported will when it is known
to them.” The attorney in Reynolds had filed a petition stat-
ing that the decedent died “intestate” immediately after he
learned that the decedent had executed a will leaving the
bulk of his estate to a different beneficiary, whose lawyer was
planning to file a petition to probate the will. The attorney’s
only explanation for not disclosing the will was that he had
“some doubt” as to its validity, but he had taken no action
to challenge the will. Id. at 788, 791-92. Although there are
some differences between Reynolds and this case,7 the rule it
announces is consistent with the obligation reflected in the
statute governing the contents of a probate petition. See ORS
113.035(2), (10) (requiring a petition to appoint a personal
representative to include, “so far as known,” information
including “[w]hether the decedent died testate or intestate”
and “[w]hether the original of the last will of the decedent is
in the possession of the court or accompanies the petition”).
It is also consistent with the obligation described
in both this court’s case law and the Rules of Professional
Conduct to make full disclosure of material facts when pre-
senting a request to a judge ex parte. See RPC 3.3(d) (“In an
ex parte proceeding, a lawyer shall inform the tribunal of
all material facts known to the lawyer that will enable the
tribunal to make an informed decision, whether or not the
facts are adverse”); Greene, 290 Or at 298 (stating that “[t]he
necessity for complete candor when dealing with the court,
particularly in an ex parte context, cannot be overempha-
sized”); see also American Bar Association’s Model Rules of
Professional Conduct, Rule 3.3 comment 14; UTCR 3.130 (specifying that, “[w]hen a party

7
For instance, Reynolds concerned whether the lawyer could obtain attorney
fees from the estate and, significantly, the attorney in Reynolds had not filed a
separate petition challenging the will; he simply failed to disclose it altogether.
37 Or App at 787-89.
Cite as 375 Or 43 (2026) 57

seeks to obtain an order from a judge, the party must inform
that judge of any ruling, hearing or application for a ruling
or hearing before any other judge that concerns the subject
of the order requested”).8
We pause briefly to address the trial panel’s conclu-
sion that respondent complied with his disclosure obligation
by filing the trust-and-will-contest case in the same circuit
court. The trial panel observed that “[t]ribunal,” as used in
the rules, “denotes a court,” RPC 1.0(p), and, therefore, that
disclosing the will in a contemporaneous case also filed in
the Yamhill County Circuit Court satisfied his obligation of
disclosure to the “tribunal.” The Bar insists that the trial
panel’s approach to what constitutes the “tribunal” is incor-
rect and undermines the “duty of candor” that RPC 3.3 as
a whole is intended to promote. We agree with the Bar that
the relevant “tribunal” that respondent needed to inform
was the judge assigned to handle the probate case.
We have not previously addressed this specific
question, and the full definition of “tribunal,” as used in the
rules, can include the particular decision-maker that the
lawyer is appearing before:
“ ‘Tribunal’ denotes a court, an arbitrator in a binding arbi-
tration proceeding or a legislative body, administrative
agency or other body acting in an adjudicative capacity. A
legislative body, administrative agency or other body acts
in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party
or parties, will render a binding legal judgment directly
affecting a party’s interests in a particular matter.”
RPC 1.0(p). Our use of the term “court” in some contexts
refers to the collection of judges and staff who make up a
particular circuit or appellate court, but in other contexts
refers to the individual judge or judges who have made a
decision. See Doe v. Corp. of Presiding Bishop, 352 Or 77,
89-90, 280 P3d 377 (2012) (observing that “a court is a place
where justice is judicially administered,” and adding that

8
Respondent contends that the Bar cannot rely on UTCR 3.130 to support
its claim that respondent violated his disclosure obligation under RPC 3.3(a)(4),
because the Bar did not plead or point to that provision below. But we cite the
provision for its relevance to the issue, not because we accept the Bar’s reliance
on it to prove a violation.
58 In re Ersoff

“judges alone, are also called the court”). The definition’s
focus on the body that is “acting in an adjudicative capacity”
and “render[ing] a binding legal judgment” suggests that
“tribunal,” likewise can refer to the judge who is making
a decision. And we have previously emphasized the impor-
tance of disclosing material information to the judge mak-
ing the decision. In re Barnes, 281 Or 375, 379-80, 574 P2d
657 (1978) (concluding that prosecutor violated duty of can-
dor when he sought a warrant to draw blood from defendant
in a pending case without disclosing to the judge from whom
he sought the warrant that a defense challenge to the blood
draw was pending before another judge).
Moreover, in the context of duties of candor more
generally, a current Oregon statute and court rule reflect
that focus on disclosure to the specific decision-maker. See
ORS 9.460(2) (requiring that attorneys employ “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”); UTCR 3.130 (requiring that, “[w]hen a party seeks to
obtain an order from a judge, the party must inform that
judge of any ruling, hearing or application for a ruling or
hearing before any other judge that concerns the subject of
the order requested” (emphasis added)). Thus, we agree with
the Bar that respondent was obligated to disclose the exis-
tence of the 2017 will when filing the petition to open admin-
istration of an “intestate” estate and that he did not satisfy
that obligation by filing a challenge to the will in the same
circuit court.
But both RPC 3.3(a)(1) and RPC 3.3(a)(4) require an
element of knowledge. See RPC 3.3(a)(1) (prohibiting law-
yers from “knowingly” making or failing to correct a false
statement to a “tribunal”); RPC 3.3(a)(4) (prohibiting law-
yers from “knowingly” failing to disclose a fact to a tribu-
nal). In other words, we have explained that a lawyer has a
duty to disclose material information and that the existence
of a potentially valid will is material when a lawyer seeks
to open an “intestate” estate, even if the lawyer is simul-
taneously contesting the validity of that will. But to prove
that respondent violated RPC 3.3(a)(1) or RPC 3.3(a)(4),
the Bar must prove by clear and convincing evidence that
Cite as 375 Or 43 (2026) 59

respondent knowingly withheld the existence of the chal-
lenged will from the probate judge. See Kluge, 335 Or at 340
(explaining that an omission can constitute a misrepresen-
tation if it is “knowing, false, and material”). Thus, a know-
ing violation of the disclosure obligations presumes that the
lawyer understood that the judge needed to be informed of
specific additional information before ruling on an issue.
We have explained that “knowledge” does not
require an attorney’s subjective awareness that they are vio-
lating a rule of professional conduct. In re Conry, 368 Or 349,
373, 491 P3d 42 (2021). Knowledge, however, does require
that the respondent be aware of the relevant facts and cir-
cumstances giving rise to the violation. Id. (a “knowing”
mental state means the lawyer “must know the essential
facts that give rise to the violation,” whereas “[n]egligence
involves the absence of subjective knowledge of facts, under
circumstances in which the attorney should have known
something.” (emphasis added; internal quotation marks
omitted)). Under the particular circumstances of this case,
we are not persuaded that the Bar met its burden to prove
that respondent knew that he was misrepresenting the sta-
tus of decedent’s estate or knew that he needed to do more
to disclose the existence of the challenged will to the judge
who would be considering the petition to open the intestate
estate.
That conclusion is significantly informed by the fact
that, one day before filing the probate petition, respondent
had filed the trust-and-will-contest case in the same circuit
court. In that filing, he had highlighted the potentially valid
will, his challenge to that will, and his reasons for asserting
that the will was not valid. In other words, everything that
we have said an attorney must disclose when filing a peti-
tion to open an “intestate” estate was disclosed in a pleading
also captioned as filed with the “probate department” of the
Yamhill County Circuit Court. Although respondent did not
claim that he had any particular expectation that the same
judge would be assigned to both cases, we are not persuaded
that respondent knew all of the facts that were pertinent to
his duty to disclose the will—namely, that the judge to whom
the probate petition would be assigned would be unaware of
60 In re Ersoff

the existence of the potentially valid will that respondent
was challenging in the related trust-and-will-contest case.
Our conclusion also is significantly informed by
respondent’s plausible explanation that he viewed the cases
as interdependent. Respondent explained, both immediately
to the Bar’s client assistance attorney and later in his tes-
timony, that he filed the probate case only so that an estate
would be open as a place for the assets to go if the trust-and-
will-contest case established that the trust and its restate-
ment were invalid. He further explained that he had intended
and understood that the probate case would simply “sit there”
until the validity of the trust and will were resolved in the
other case. That explanation is persuasive given the evidence
that decedent’s 2017 will directed all of her assets to the
trust; that respondent was actively challenging decedent’s
trust; that the validity of the will would not affect the per-
sonal representative appointment, because the will also des-
ignated Montre as personal representative; and that respon-
dent had taken no action in the probate case beyond filing
the petition to open administration of the estate.9 Indeed, it is
undisputed that respondent initially planned to file a single
pleading that both requested to open an “intestate” estate
administration and challenged decedent’s 2017 will and trust
and 2020 trust restatement as invalid. And, when the clerk’s
office directed respondent to file the matters under separate
case numbers, he filed the case highlighting the existence of
the challenged will first. Those are not the actions of a lawyer
who had any interest in concealing the existence of the possi-
bly valid will, and we are not persuaded by the Bar’s conten-
tion that respondent was aware that he needed to do more to
make the judge who would rule on the probate petition aware
of the existence of a challenged will.
It may be that respondent should have known that
there was a risk the judge handling the probate petition
would be unaware of the existing challenged will, but RPC
9
Although not applicable here, certain statutes (ORS 114.441 to 114.462)
contemplate the opening of a “no assets” probate case solely for the purpose of
pursuing a personal injury or wrongful death claim. The no-assets probate proce-
dure can be used to open an estate for the purpose of appointing a personal repre-
sentative for a decedent in order to prosecute a wrongful death or other personal
injury claim and to receive the proceeds of any recovery or may be summarily
closed if no recovery is made.
Cite as 375 Or 43 (2026) 61

3.3(a)(1) and RPC 3.3(a)(4) require the Bar to prove that
a lawyer knowingly withheld information that the judge
needed to be aware of. Under the particular circumstances
of this case, given the interconnection between the trust-
and-will-contest case and the probate case, the Bar has
failed to prove that respondent—who had disclosed the will
in the related case and believed that the probate case would
be on hold until the challenges in the related case were
resolved—knew that he was failing to disclose the existence
of the challenged will as required.10
The Bar also contends that respondent knew he had
created a false impression (that he was obligated to correct)
at least by the time Hamilton discussed his concern about
the “intestate” filing. But the testimony regarding what
occurred during that conversation with Hamilton is con-
flicting, and respondent’s contemporary notes do not indi-
cate that he knew after that conversation that he needed to
do anything at that time. Rather, respondent’s immediate
response upon learning of Hamilton’s complaint to the Bar
suggests that he was not aware that he had made a false
statement or omitted information that he was required to
disclose at that stage of the probate case. Although respon-
dent conceded that he had agreed to address Hamilton’s con-
cerns by sending the court a letter explaining that a chal-
lenged will existed and that the separate pending challenge
to the will’s validity would ultimately determine whether
decedent died intestate, respondent continued to insist that
he believed his approach was “appropriate” and that he “did
not intend to mislead the court or withhold information from
the court.” The Bar has not persuaded us by clear and con-
vincing evidence that respondent misrepresented his state
of mind following the conversation with Hamilton. Under
the circumstances, the Bar has not proven that respondent
knew that his failure to attach the challenged 2017 will or
otherwise describe it in the probate petition would amount
to a failure to disclose the existence of the will as required
by the rules. Thus, the Bar has not proven that respondent
10
We do not suggest that lawyers are excused from knowing of their obli-
gation to disclose material facts to the tribunal, but to knowingly violate that
obligation, the lawyer must know that, under the circumstances, they have failed
to accomplish the required disclosure. This opinion resolves any ambiguity that
might previously have existed regarding that point.
62 In re Ersoff

knowingly made or failed to correct a false statement in vio-
lation of RPC 3.3(a)(1), nor that he knowingly failed to dis-
close the will to the tribunal in violation of RPC 3.3(a)(4).
C. Whether the Bar Proved that Respondent’s Conduct Was
Prejudicial to the Administration of Justice
The Bar’s final contention is that, even if it failed
to prove the other charged violations, it proved that respon-
dent’s conduct as a whole violated RPC 8.4(a)(4). The rule
provides that “[i]t is professional misconduct for a lawyer to
* * * engage in conduct that is prejudicial to the administra-
tion of justice.” Unlike the rules discussed above, RPC 8.4
(a)(4) does not require that a lawyer act with any particu-
lar mental state. See In re Claussen, 322 Or 466, 482, 909
P2d 862 (1996) (explaining that under former DR 1-102
(A)(4), the predecessor to RPC 8.4(a)(4), “[t]he focus of the
rule is on the effect of a lawyer’s conduct on the adminis-
tration of justice, rather than on the lawyer’s state of mind
when the conduct is undertaken”).11 To establish a violation
of RPC 8.4(a)(4), the Bar must prove by clear and convincing
evidence that (1) respondent’s actions were “improper”; (2)
the conduct occurred during the course of a judicial proceed-
ing; and (3) the conduct had or could have had a prejudicial
effect on the administration of justice. In re Ard, 369 Or 180,
193, 501 P3d 1036 (2021). The parties do not dispute that the
alleged misconduct occurred during judicial proceedings;
thus, we consider only the first and third elements of RPC
8.4(a)(4). As we will explain, we ultimately conclude that the
Bar established that respondent’s actions were improper but
failed to establish that his conduct had or could have had a
prejudicial effect on the administration of justice.
The trial panel concluded that the Bar had failed
to prove that the acts complained of were improper because
the trial panel had concluded that respondent had not vio-
lated either RPC 3.3(a)(1) or RPC 3.3(a)(4). Unlike the trial
panel, however, our conclusion that respondent did not vio-
late either RPC 3.3(a)(1) or RPC 3.3(a)(4) was entirely due to
our conclusion that the Bar failed to prove that respondent
11
This court has observed that former DR 1-102(A)(4) was “identical” to RPC
8.4(a)(4), and thus the case law interpreting the former rule is pertinent to our
analysis under the current rule. Paulson, 346 Or at 683 n 5.
Cite as 375 Or 43 (2026) 63

acted “knowingly.”12 A lawyer’s actions are improper if “the
lawyer did something he or she should not have done or
failed to do something that the lawyer should have done.”
In re Skagen, 342 Or 183, 213, 149 P3d 1171 (2006) (apply-
ing former DR 1-1-2(A)(4)). As explained above, numerous
sources of law created an obligation for respondent to dis-
close the existence of the known will when claiming in an
ex parte proceeding that decedent had “died intestate.” 375
Or at 56-58. We thus conclude that respondent’s conduct
was “improper” for purposes of RPC 8.4(a)(4).
Nevertheless, we are not persuaded in this case that
respondent’s single proven omission created the kind of sub-
stantial prejudice or substantial potential prejudice that is
necessary to establish that respondent’s conduct was “prej-
udicial to the administration of justice.” We have explained
that prejudice to the administration of justice occurs “when
the lawyer’s conduct harms (or has the potential to harm)
either the substantive rights of a party to the proceeding or
the procedural functioning of a case or hearing,” or both. In
re Maurer, 364 Or 190, 199, 431 P3d 410 (2018). When the
conduct consists of a single act—as we have found here—
we have required the Bar to prove that the lawyer’s con-
duct “caused or could have caused substantial harm.” Id.
at 200; see also In re Lawrence, 350 Or 480, 485-86, 256
P3d 1070 (2011) (explaining that to establish a violation of
RPC 8.4(a)(4), the Bar must prove that “a single act” could
have caused “substantial harm to the administration of jus-
tice” or that “several acts” had the potential to “cause some
harm”). The Bar maintains that respondent’s failure to dis-
close the will caused substantial harm to Arguelles (in the
form of increased legal bills and anxiety about losing her
12
This court has twice held that conduct was not “improper” for purposes of
RPC 8.4(a)(4) if the conduct “has been found not to violate the disciplinary rules,”
citing Marandas, 351 Or at 537-38. In re McGraw, 362 Or 667, 691, 414 P3d 841
(2018). But in both McGraw and Marandas, the conclusion flowed from a failure
to prove the allegedly improper conduct. See McGraw, 362 Or at 683, 692 (having
rejected contention that lawyer had asserted a frivolous legal position in viola-
tion of RPC 3.1, court also rejected contention that the lawyer had violated RPC
8.4(a)(4) by taking that nonfrivolous legal position); Marandas, 351 Or at 537-38
(because lawyer’s assertion of plausible legal positions was not a violation of dis-
ciplinary rules prohibiting misrepresentations, court rejected assertion that the
lawyer’s conduct was “improper” for purposes of RPC 8.4(a)(4)). We have not held
that a violation of RPC 8.4(a)(4) can only be proven by a violation of additional
disciplinary rules.
64 In re Ersoff

house); to his own client (who was ultimately responsible for
Arguelles’s increased legal bills); to the court (in the form
of substantial time and resources expended to resolve an
unnecessary case); and to the legal system as a whole.
We emphasize, however, that it was only respon-
dent’s failure to disclose the challenged will—not the fil-
ing of a petition to administer an “intestate” estate—that
was improper. Of the actual prejudice that the Bar iden-
tifies, we are persuaded that respondent’s filing of a peti-
tion to administer an “intestate” estate without disclosing
the existence of the will, at most, prompted Arguelles’s
lawyer, Hamilton, to allege the existence of the 2017 will
when he filed an objection and challenge to the appoint-
ment of Montre as personal representative. However, given
Arguelles’s interest in opposing probate of the 2017 will—
after Zantello amended the petition to plead the existence of
that will—we are not persuaded that respondent’s failure to
disclose the 2017 will in the initial pleading meaningfully
increased the legal work. No evidence contradicts testimony
from Zantello that the filing of the “intestate” petition did
not result in Montre receiving any assets or information
that he would not have had without the petition being filed.
Nor has the Bar explained how the intestate probate peti-
tion—rather than the trust- and-will-contest case—threat-
ened Arguelles’s interest in the house. And the Bar has not
established that the court’s devotion of resources to the pro-
bate case would have been substantially different if respon-
dent had disclosed the challenged will, given that it signed
a single judgment opening administration of the estate and
issuing authorization for Montre to serve as personal repre-
sentative. The record shows that, even after the existence of
the contested will and trust was disclosed by Zantello in the
amended petition, Judge Collins continued to hold the pro-
bate case open for administration and continued Montre’s
appointment as personal representative, pending resolution
of the related challenges to the trust and will in the related
case.
The Bar also has not convinced us that respondent’s
omission created substantial potential harm. We emphasize
that the failure to disclose a material fact in a court pleading,
Cite as 375 Or 43 (2026) 65

particularly in ex parte matters, is improper and has the
potential to be substantially prejudicial to the administra-
tion of justice. See, e.g., Greene, 290 Or at 297 (emphasizing
that “[e]xtremely important judicial decisions are often made
in probate cases, injunction cases and domestic relations
cases on ex parte application of lawyers” and that “[j]udges
must be able to rely upon the integrity of the lawyer.”). But
in assessing potential harm, our cases have considered the
specific facts of the case, rather than simply potential harm
in the abstract. See Kluge, 335 Or at 338-39 (where law-
yer’s improper conduct was continuing to represent client
despite knowing that he had a conflict of interest and would
be called as a witness in litigation involving client, pointing
to potential harm from that testimony); Lawrence, 350 Or at
487-90 (in concluding that Bar had not proven substantial
potential harm from allegedly improper release of part of
victim’s testimony from a juvenile case, emphasizing that
the information in the released partial transcript had been
presented in open court and had already been reported by
the press).
Filing an “intestate” probate petition without dis-
closing the existence of a will whose validity is disputed cer-
tainly could raise the potential for harm, in a different case.
In some circumstances, that act creates risk that assets will
be improperly distributed, that the wrong person will be
appointed as personal representative, or that the court or
opposing parties will devote unnecessary resources to the
case. But we are not persuaded that respondent’s conduct
created that potential for those harms in this case. In par-
ticular, we are persuaded that respondent’s open challenge
to the 2017 will and related trust in contemporaneous litiga-
tion filed in the same court and involving the same opposing
party and lawyer mitigated the risk of harm to the adminis-
tration of justice as a whole. Similarly, the facts that Montre
was the designated personal representative under the 2017
will—and that the estate’s only asset was tied up in the
trust of which Arguelles was beneficiary—eliminated the
risk that the “intestate” probate case would alter the dis-
tribution of the only asset at issue, the McMinnville house.
Finally, the record is entirely consistent with respondent’s
testimony that he had no intention of moving forward with
66 In re Ersoff

distribution of estate assets until his challenge to the trust
was resolved in the related case, because decedent’s assets
were assigned to the trust that respondent was challenging.
Accordingly, the Bar has failed to persuade us by clear and
convincing evidence that, under the circumstances of this
case, respondent’s improper failure to attach or describe the
challenged will when seeking to open administration of an
“intestate” estate was prejudicial to the administration of
justice.
For these reasons, we conclude that respondent did
not violate RPC 8.4(a)(4).
III. CONCLUSION
We conclude that respondent did not violate RPC
3.3(a)(1), because the statement that decedent “died intes-
tate” was a plausible legal position on an open question. We
also conclude that respondent did not violate RPC 3.3(a)(1)
or RPC 3.3(a)(4) by failing to disclose the 2017 will in the
probate case, because the record does not establish that he
knew he was misrepresenting the status of decedent’s estate
or knew that he needed to do more to disclose the existence
of the challenged will. Finally, we conclude that respondent
did not violate RPC 8.4(a)(4), even though it was improper to
have failed to disclose the existence of the 2017 will, because,
under the circumstances, that omission did not cause sub-
stantial harm or potential risk of substantial harm. Having
concluded that that the Bar failed to prove any violation of
the RPCs by clear and convincing evidence, we affirm the
trial panel.
The complaint is dismissed.