8 P.3d 966 (Ore.2000)
In 1992, the accused represented several chiropractors charged with racketeering and fraud.1 Those charges arose out of an undercover investigation called Operation Clean Sweep conducted by SAIF Corporation and the Oregon Department of Justice.2 The accused filed a complaint with the Oregon State Bar alleging that lawyers involved in the operation had violated rules of the Code of Professional Responsibility by advising SAIF investigators to pose as janitors and injured workers.3
The Bar investigated the accused's complaint.4 On June 16, 1993, disciplinary counsel wrote to the accused that preliminary research suggested prosecutors were required only to avoid illegal means to obtain evidence and that if SAIF had public authority to root out fraud then attorneys assisting it were not acting unethically.5 On March 25, 1994, an assistant disciplinary counsel wrote that the State Professional Responsibility Board had closed the file because there was no evidence that any SAIF or DOJ attorney had violated any provision of the Code of Professional Responsibility.6
In April 1994, Dr. Saboe told the accused that Comprehensive Medical Review had contacted him about serving as a medical reviewer for State Farm Insurance Company claims.7 The accused came to believe that individuals other than medically trained personnel were preparing reports for CMR using a formula designed to contain costs.8 On May 17, 1994, the accused made three telephone calls to Dr. Becker, CMR vice-president Adams, and Householder in which he identified himself as a chiropractor or doctor interested in working for CMR, tape-recorded the conversations, and later had one transcribed.9
In June 1994 the accused filed an action in the United States District Court for the District of Oregon against CMR, State Farm, and Householder alleging fraud and intentional interference with contractual relations.10 In July 1994, Adams filed a complaint with the Bar.11 During the Bar's investigation the accused initially denied some misrepresentations in letters dated August 2, 1994, and August 30, 1994.12 He later admitted the conduct in his answer to the Bar's complaint and at the hearing before the trial panel.13 On November 6, 1995, the accused's lawyer sent a memorandum summarizing the Adams conversation, and in December 1996 the accused obtained relief from a protective order to produce the transcript.14
The trial panel of the Disciplinary Board found that the accused had committed the charged violations but dismissed the Bar's amended complaint on the ground that the Bar was estopped from prosecuting him.15 The Oregon State Bar sought review of the trial panel decision in the Supreme Court of Oregon pursuant to ORS 9.536(1) and Bar Rule of Procedure 10.1 and 10.3.16
Whether the Bar was estopped from prosecuting the accused based on its prior responses to his 1992 complaint?17
No. The Bar's letters dated June 16, 1993, and March 25, 1994, responded to the accused's complaint about SAIF and DOJ lawyers in Operation Clean Sweep by stating there was no evidence of violations and focusing on governmental authority without stating or implying that private lawyers could use deceptive methods.20 The accused made the May 1994 telephone calls to Becker and Adams after receiving those letters.21 His reliance was not reasonable because the letters addressed only the lack of evidence against government attorneys and did not endorse private sting operations.
The trial panel erred in holding that the Bar was estopped from prosecuting the accused.22
Whether the accused violated DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4) through his telephone calls to CMR personnel?23
DR 1-102(A)(3) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation.24 DR 7-102(A)(5) prohibits knowingly making a false statement of law or fact in the course of representing a client or the lawyer's own interests.25 ORS 9.527(4) authorizes discipline for willful deceit or misconduct in the legal profession.26
Yes. The accused admitted in his answer to the Bar's complaint and at the trial panel hearing that he identified himself as a chiropractor or doctor interested in working for CMR during the calls to Becker and Adams.27 He intended to deceive them and was engaged in the practice of law at the time.28 These admissions establish knowing misrepresentations of identity and purpose that satisfy the elements of dishonesty and deceit under DR 1-102(A)(3), false statements of fact under DR 7-102(A)(5), and willful deceit under ORS 9.527(4).29
The accused violated DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).30
Whether the court should recognize an investigatory exception to the disciplinary rules and statute for lawyers in private practice or government attorneys?31
No. The accused and amici argued for an exception allowing misrepresentations limited to identity or purpose when investigating suspected unlawful conduct.34 The court held that the plain wording of DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4) does not permit recognition of an exception for any lawyer.35 Any exception must await the full debate contemplated by the process for adopting and amending the Code of Professional Responsibility rather than being created by judicial decree.36
The court declined to adopt an investigatory exception to DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).37
Whether the Bar's decision to prosecute the accused violated his rights under Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment?38
No. The accused showed only that the Bar dismissed his 1992 complaint against SAIF and DOJ lawyers for lack of evidence.41 The Bar does not follow a policy of prosecuting lawyers in private practice but not government lawyers.42 The trial panel found that the earlier dismissal rested on insufficient evidence rather than any prosecutorial immunity or classification system.43
The accused failed to establish that the Bar violated Article I, section 20, or the Equal Protection Clause in bringing this proceeding.44
Whether a public reprimand is the appropriate sanction for the accused's conduct?45
ABA Standard 5.13 provides that reprimand is generally appropriate when a lawyer knowingly engages in conduct involving dishonesty, fraud, deceit, or misrepresentation that adversely reflects on the lawyer's fitness to practice law.46 Aggravating factors include multiple violations and substantial experience.47 Mitigating factors include absence of selfish motive and good character.48
Yes. The accused acted intentionally in making the misrepresentations, violating his duty of honesty to the public.49 He caused no actual injury because Becker and Adams revealed no damaging information.50 Although multiple violations and substantial experience constitute aggravating factors, the accused's lack of selfish motive, good character evidence, and the fact that many lawyers held the same mistaken belief about investigatory tactics constitute mitigating considerations.51 A public reprimand is the fitting sanction under the circumstances.52
The accused is reprimanded.53