Oregon State Bar
2001 Special House of Delegates Meeting

Greenwood Inn
10700 S.W. Allen Boulevard
Beaverton, Oregon

Friday, January 19, 2001, 3:30 p.m.

Presiding Officer: Edwin A. Harnden, President

 

Agenda

1. Call to Order

 Edwin A. Harnden

 

2. Overview of Parliamentary Procedure

 Edwin A. Harnden

 

3. Amends DR 1-102(A) - Misconduct; Responsibility for Acts of Others

 BOG Resolution No. 1
 Presenter: Charles R. Williamson III

 


Resolution

3. Amends DR 1-102 - Misconduct; Responsibility for Acts of Others
(BOG Resolution No. 1)

Resolved, that the OSB Board of Governors has formulated the following amendment to Disciplinary Rule 1-102(A) for consideration by the OSB House of Delegates, pursuant to ORS 9.490(1):

DR 1-102 Misconduct; Responsibility for Acts of Others

(A) It is professional misconduct for a lawyer to:

(1) Violate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another;

(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;

(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) Engage in conduct that is prejudicial to the administration of justice;

(5) State or imply an ability to influence improperly a government agency or official.

(B) A lawyer shall be responsible for another lawyer’s violation of these disciplinary rules if:

(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(C) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(D) Notwithstanding subsections (A)(1) and (A)(3) of this rule or DR 7-102(A)(5), it is not misconduct for a lawyer to supervise or advise about lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise consistent with these disciplinary rules.

Background

On August 17, 2000 the Supreme Court issued its decision in In re Gatti, 330 Or 517, 8 P3rd 966 (2000). The case involved a lawyer in private practice who misrepresented his identity in order to obtain information about what he suspected was fraud in insurance medical reviews. The Disciplinary Board trial panel concluded that the lawyer had violated DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 7-102(A)(5)(knowingly making false statement of law or fact) and ORS 9.527(4) (willful deceit or misconduct in the legal profession), but dismissed the complaint on the ground that the Bar was estopped from prosecuting the lawyer for those violations. On appeal the Supreme Court held that the bar was not estopped from prosecuting the lawyer and publicly reprimanded the lawyer for his violations of the disciplinary rules.

Amicus curaie briefs were filed by several interested parties. The US Attorney and the Oregon Attorney General asked the court to recognize or adopt an exception to DR 1-102(A)(3) for government lawyers who supervise or conduct undercover operations that involve deception. The Oregon Consumer League, Fair Housing Council of Oregon, Oregon Law Center and individual lawyers also appearing as amici objected to an exception only for government lawyers and asked the Court to adopt a rule that would allow any lawyer to misrepresent the lawyer’s identity or purpose to someone who is the subject of an investigation in gathering facts before filing suit.

The Court declined to recognize any exceptions to DR 1-102(A)(3). Noting that, pursuant to ORS 9.490(1), the rules of professional conduct 'shall be binding upon all members of the bar, ' the Court held that:

'Faithful adherence to the wording of DR 1-102(A)(3), DR 7-102(A)(5), ORS 9.527(4), and this court’s case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation or false statements…Those disciplinary rules and the statute apply to all members of the Bar, without exception.'

In discussing mitigating factors affecting the appropriate sanction, the Court also pointed out that:

'Statements by parties amici indicate that lawyers in both private practice and those who work in the public sector in good faith have held the mistaken belief that they ethically are permitted to misrepresent their identity and purpose, and to encourage others to do so, to acquire information.'

Following the Court’s decision in In re Gatti, the US Attorney, the Oregon Attorney General, local District Attorneys and a variety of lawyers in private practice expressed concern about the decision and its apparent rejection of traditional techniques for lawyer involvement in civil and criminal law enforcement.

In September 2000, the BOG appointed a Study Group to consider whether an amendment to the Disciplinary Rules was appropriate in response to the court’s decision in Gatti, and if so, what that amendment should be. The Study Group, co-chaired by BOG member Charles Williamson and Legal Ethics Committee Chair Michael Greene, included federal and state prosecutors, criminal defense lawyers, housing testers, legal aid lawyers, and members of the private plaintiffs and defense bar. The Study Group met three times and engaged in thorough and thoughtful debate of the issues. In November, the Study Group recommended to the Board of Governors a proposal for amending DR 1-102(A) essentially as set forth above, except that the Study Group’s proposal suggested it would not be misconduct for a lawyer 'to conduct, supervise or advise about lawful covert activity…'

At its meeting on November 18, 2000, the Board of Governors modified the Study Group’s recommendation by deleting the word 'conduct.' The BOG concluded that it was not appropriate to permit lawyers to engage directly in deceptive practices, but that they should be allowed to supervise and advise law enforcement officers and others about their involvement in legitimate covert investigations of violation of law.

Following is additional background information:

1. In re Gatti, 330 Or 517, 8 P3d 966 (2000)

2. Report of the DR 1-102 Study Group (11/9/00)

3. Text of US Attorney’s response to Study Group Report (11/9/00)

4. Legal Ethics Committee Recommendation to the BOG (11/13/00)

5. Text of Oregon Dept. of Justice/US Attorney letter to BOG (11/15/00)

6. Text of ODAA letter to BOG (11/15/00)

Presenter: : Charles R. Williamson III

 

1. In re Gatti, 330 Or 517, 8 P3d 966 (2000)

Filed: August 17, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of

DANIEL J. GATTI,

Accused.

(OSB 95-18; SC S45801)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted March 3, 2000.

Christopher R. Hardman, Portland, argued the cause and filed the brief for the accused. Mary A. Cooper, Assistant Disciplinary Counsel, Oregon State Bar, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar.

Robert K. Udziela, Portland, filed a brief for amici curiae Oregon Consumer League, Fair Housing Counsel of Oregon, Oregon Law Center, Kathryn H. Clarke, Esq., Jeffrey P. Foote, Esq., William A. Gaylord, Esq., Phil Goldsmith, Esq., Maureen Leonard, Esq., and David F. Sugerman, Esq.

Kristine Olson, United States Attorney, Portland, filed a brief for amici curiae United States Department of Justice and United States Attorney's Office District of Oregon. With her on the brief were Michael W. Mosman, Assistant United States Attorney, and Phillip Schradle, Assistant Attorney General, State of Oregon.

PER CURIAM

The accused is reprimanded.

PER CURIAM

In this lawyer discipline proceeding, the Oregon State Bar (Bar) seeks review of a decision by a trial panel of the Disciplinary Board. ORS 9.536(1); Bar Rule of Procedure (BR) 10.1 and BR 10.3. The Bar charged the accused with violating Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 7-102(A)(5) (knowingly making false statement of law or fact), and ORS 9.527(4) (willful deceit or misconduct in the legal profession). The accused defended, in part, on the theory that there are or should be exceptions to those rules and the statute in some situations. The trial panel concluded that the accused had committed the violations, but it dismissed the Bar's amended complaint, holding that the Bar was estopped from prosecuting the accused. We review the decision of the trial panel de novo. ORS 9.536(3); BR 10.6. For the reasons that follow, we hold that the Bar was not estopped from prosecuting the accused, that the accused violated both the rules and statute identified above, and that the accused's defense based on the state and federal constitutions is not well taken. We also conclude that, under the circumstances of this case, the appropriate sanction is a public reprimand.

I. FACTS

We find the following facts by clear and convincing evidence. Before the accused engaged in the conduct at issue in this proceeding, he represented several chiropractors who had been charged with racketeering and fraud. Those charges arose out of an undercover investigation, called Operation Clean Sweep, that SAIF Corporation (SAIF) and the Oregon Department of Justice (DOJ) had conducted. In 1992, the accused filed a complaint with the Bar, alleging that the lawyers involved in Operation Clean Sweep had advised SAIF investigators to have individuals pose as janitors and injured workers for the purpose of infiltrating chiropractors' and lawyers' offices to obtain information about suspected fraudulent workers' compensation claims. The accused's complaint asserted that the lawyers who provided that advice had violated several rules of the Code of Professional Responsibility, including the rules that are at issue in this proceeding.

The Bar investigated the accused's complaint. On June 16, 1993, disciplinary counsel to the Bar wrote to the accused:

'Because of the general nature of your allegations and the lack of any named respondent, the Bar was unable to follow its normal investigative process, which consists of forwarding a copy of the complaint to the responding lawyer and asking for a response to the specific allegations. * * *

'* * * Our preliminary research focused on whether a governmental agency, and lawyers working for that agency, have more latitude in carrying out the agency's regulatory powers in a surreptitious fashion than members of the Bar in the private sector. The answer to that question is not clear; however, our research does suggest that a prosecutor is required only to avoid the use of illegal means to obtain evidence directly or indirectly through others. The cases we have reviewed seem to indicate that a prosecutor oversteps his bounds when he causes another to give false testimony under oath or to appear before a court or other agency who has not first been apprised of the deception and the reasons therefore.

'Our preliminary conclusion is that if SAIF is considered to have public authority to root out possible fraud, then attorneys assisting SAIF in this endeavor are not acting unethically in providing advice on how to conduct a legal undercover operation. It is our understanding that no court has found Operation Clean Sweep to have been illegal or to constitute prosecutorial misconduct.'

(Emphasis in original; citations omitted).

Disciplinary counsel thereafter submitted the accused's complaint to the State Professional Responsibility Board (SPRB). On March 25, 1994, an assistant disciplinary counsel to the Bar wrote to the accused that the SPRB had closed its file on the complaint because 'there was no evidence that any [SAIF or DOJ] attorney violated any provision of the Code of Professional Responsibility in connection with Operation Clean Sweep or any other operation involving [SAIF or DOJ].'

In April 1994, Dr. Saboe, a chiropractor with whom the accused was acquainted, told the accused that a California company, Comprehensive Medical Review (CMR), had contacted Saboe to inquire whether he would serve as a medical reviewer for CMR. At that time, one of CMR's clients was State Farm Insurance Company (State Farm), and CMR provided it with medical review reports recommending whether to accept or deny medical claims. Saboe had a sense of 'unease' about the methods that CMR used to recommend that State Farm deny benefits. The accused subsequently came to believe that individuals other than medically trained personnel were preparing reports for CMR, that they were using a 'formula' that was designed to help State Farm contain costs, and that medical reviewers were signing the reports.

On May 17, 1994, the accused received a copy of a CMR report that had been signed by Dr. Becker, a California chiropractor, concerning a claim that a client of the accused had filed with State Farm. The accused believed that State Farm had denied the claim based on Becker's report. The denial made the accused angry, and he made three telephone calls to CMR personnel. Before placing the calls, he did not perform any legal research regarding this court's case law on the subject of whether a lawyer who misrepresents his or her identity or purpose violates lawyer disciplinary rules. According to the accused, he made the calls intentionally, but they were 'an absolute fluke' and he made them 'out of stupidity more than anything.'

The accused first called Becker. He identified himself to Becker as a chiropractor and asked Becker about Becker's qualifications. Becker became uncomfortable with the accused's questioning and quickly discontinued the conversation, which the accused had tape recorded.

The accused then called Adams, a vice-president and director of operations for CMR. The accused introduced himself to Adams as a doctor with experience performing independent medical examinations and reviewing insurance claims. The accused contends that he did not tell Adams that he was a chiropractor, but he admits that he 'wanted [Adams] to believe that [he] was a chiropractic physician.' The accused told Adams that he saw patients, that he performed independent medical examinations, that he performed file and case reviews, and that he was interested in participating in CMR's educational programs for insurance claims adjusters. The accused also told Adams that both Becker and State Farm had referred him to CMR, and that he was interested in working for CMR as a claim reviewer. The accused tape recorded most of his conversation with Adams, which he then had one of his secretaries transcribe. For his part, Adams took notes of the conversation.

Adams believed that the accused was a chiropractor and a likely prospect to work for CMR in Oregon. Adams referred the accused to Householder in CMR's Vancouver, Washington, office to discuss employment opportunities with CMR. The accused called Householder, who knew that the accused was a lawyer and that he was not interested in working for CMR. After he had made the calls to Becker, Adams, and Householder, the accused developed a plan for a fraud investigation involving CMR.

In June 1994, based on information that he had acquired from sources other than his telephone calls to Becker, Adams, and Householder, 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. On July 30, 1996, the District Court entered a protective order that covered all documents that had been produced in the Oregon case, including all depositions.

In July 1994, Adams filed with the Bar the present complaint. Among other things, Adams stated that the accused

'represented himself as an Oregon chiropractor who was interested in working with our company. He specifically stated that he was a Diplomate of the American Board of Chiropractic Orthopaedics.

'* * * * *

'* * * [H]e continuously attempted to elicit specific information regarding the CMR protocols and guidelines which are used in preparing our reports. We consider much of this information to be confidential and proprietary. * * *

'* * * * *

'* * * The telephone call was made for the sole purpose of gathering unauthorized discovery for [his] lawsuit.'

On August 2, 1994, in response to a request from assistant disciplinary counsel, Hicks, about Adams' complaint, the accused wrote that he had called Adams 'as a result of an investigation that we have been conducting against Mr. Adams, Dr. Becker, Comprehensive Medical Review, and several others for racketeering and fraud.' (Emphasis added.) The accused's letter stated, in part:

'In answer to Mr. Adams' specific charge that I represented myself as a chiropractor, that is absolutely false. I specifically told him that I was inquiring about their educational programs for claims adjusters and that I would like to participate in those programs. Mr. Adams asked if I was a doctor. He did not ask if I was a chiropractor. I told him I was a doctor and that I did file reviews by the hundreds. This, of course, is true.'

Hicks then asked the accused to provide her with a copy of his medical license. The accused responded:

'* * * I am quite shocked at your request that I provide you with a copy of my medical license. * * * Your records reflect that I am a Doctor of Juris Prudence [sic] and that is not a misrepresentation.

'* * * There was no representation that I was a medical doctor and even if there was, under the circumstances of this fraudulent activity, that would not be unethical.'

Hicks subsequently asked the accused for additional information in response to another letter that Adams had sent to the Bar alleging a variety of additional misrepresentations and false statements that the accused had made when he had called Adams. On August 30, 1994, the accused responded, in part:

'I am not going to go into great detail about my conversation with Mr. Adams. I was conducting a fraud investigation on behalf of several clients and I am not going to be a witness nor a party to the litigation which will ultimately conclude in federal and state courts.

'* * * * *

'It is also astounding to me that Mr. Adams would continue to voice his contempt for my calling him and our discussion about how he conducts his wrongful business enterprise. * * *

'* * * * *

'I do not think that it is appropriate for the bar association to entertain the complaint of Mr. Adams in light of the serious allegations of criminal activity that have been leveled against his company and several others. There are literally hundreds if not thousands of complaints that will be forthcoming against Mr. Adams and his company or other defendants. When the litigation is over, the courts will clearly have identified who has been ethical and who has not.

'I have fully cooperated with the bar association on this matter and I do not believe you will need more information from me in order for you to proceed.'

(Emphasis added.)

Approximately 15 months later, on November 6, 1995, after the accused had retained legal counsel to represent him in this matter, his lawyer sent Hicks a copy of a memorandum entitled 'Summarization of Dan Adams' that the accused had prepared soon after his telephone conversation with Adams. In response, Hicks asked why the accused had not sent her a copy of the memorandum earlier in the investigation and whether the accused had prepared the memorandum using other notes or records. On January 9, 1996, the accused's lawyer responded that the accused had not sent a copy of the memorandum sooner because 'he considered that document to be part of his attorney work product.' The January 9 letter also stated:

'* * * [The accused's] memorandum was prepared by him from other notes or other records but, after a complete search for those, they cannot be located. [The accused] has instructed his office staff to continue to try to locate those materials, but we fear they are long gone. If they are located, however, they will be provided to you.'

(Emphasis added.) At the hearing before the trial panel, the accused testified that 'other notes or records' included the transcript of his conversation with Adams and that, when the January 9 letter was written, he in fact had the transcript.

In December 1996, the accused requested relief from the federal protective order to allow him to use information that he had acquired during the discovery process in the civil cases against State Farm to defend against the charges in this proceeding. The court allowed the accused to do so, and the accused thereafter sent the transcript to the Bar. The transcript made clear that the accused had told Adams that he was interested in working for CMR, that he was a doctor, that he saw patients, that he performed independent medical examinations, and that he was interested in becoming involved with CMR's educational seminars.

II. ESTOPPEL DEFENSE TO ALLEGED VIOLATIONS

In a single cause of complaint, the Bar charged the accused with violating DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4), all arising from his telephone calls to Becker and Adams. We first address whether the trial panel erred in dismissing the Bar's complaint on the ground that the Bar was estopped from prosecuting the accused.

According to the trial panel, Bar counsel's responses to the accused's 1992 complaint against SAIF and DOJ lawyers 'essentially represented to the Accused that SAIF's lawyers [sic] conduct does not violate the Code of Professional Responsibility, rather than representing to Accused that SAIF's lawyers were accorded a prosecutorial exception to the disciplinary rules.' (Emphasis in original.) In the trial panel's view, the accused reasonably inferred from those letters that, in the Bar's view, it is ethical for a lawyer in private practice to use deceptive methods to investigate other private parties. Accordingly, the trial panel concluded that, when the accused made the telephone calls to Becker and Adams, he believed that he was acting ethically.

The Bar contends that its letters to the accused did not state or imply that, in the Bar's view, it is ethical for a lawyer in private practice to use deceptive methods to investigate other private parties. Furthermore, it contends, its investigation of the accused's complaint simply had 'turned up little if any reliable evidence' to support the accused's assertions regarding the lawyers who allegedly had been involved in Operation Clean Sweep, and its letters to the accused reflected that fact. The accused responds that the Bar's letters to him regarding his 1992 complaint against SAIF and DOJ lawyers reasonably led him to believe that lawyers in private practice as well as public lawyers may assist in a sting operation 'that has essentially deceitful elements' without violating the Code of Professional Responsibility.

This court has held that a lawyer violates DR 7-102(A)(5) by misrepresenting the lawyer's identity while engaged in the practice of law. See In re Chambers, 292 Or 670, 680-81, 642 P2d 286 (1982) (lawyer's knowing misrepresentation of self as independent insurance agent violates DR 7-102(A)(5)). Even assuming that the accused relied on the Bar's letters in making the calls, his reliance was not reasonable. The Bar's letters neither stated nor implied that lawyers in the private practice of law may misrepresent their identity or purpose in investigating a matter. Moreover, advice from disciplinary counsel is not a defense to a disciplinary violation. In re Ainsworth, 289 Or 479, 490, 614 P2d 1127 (1980). The trial panel erred in holding that the Bar was estopped from prosecuting the accused for the alleged misconduct at issue in this case. We turn to the merits.

III. ALLEGED VIOLATIONS

As noted, the Bar's single cause of complaint charged the accused with violating DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4) in connection with his telephone calls to Becker and Adams. The Bar's complaint alleged that the accused represented himself to Becker as a chiropractor and that he made several misrepresentations to Adams, including that he did independent medical examinations, that he was interested in working for CMR, that he did file and case reviews, that he saw patients, and that he was interested in participating in CMR's educational programs for insurance claims adjusters. The complaint also alleged that the accused failed to disclose that he was a lawyer, that he was preparing to sue CMR, and that he hoped that he would obtain information from the telephone calls that he could use in claims against CMR and Adams.

In his answer to the Bar's complaint, the accused admitted that he had engaged in the conduct alleged. The accused repeated those admissions during the hearing before the trial panel, and he testified that he had intended to deceive both Becker and Adams. The evidence demonstrates, as the trial panel found, that the accused was engaged in the practice of law when he made the telephone calls to Becker and Adams and that he had committed each of the charges.

Before this court, the accused contends that, by merely misrepresenting his identity and purpose for the sake of obtaining information, when there was no monetary or other injury involved, he did not violate the rules or the statute. The Bar contends that it has proven by clear and convincing evidence that the accused violated both the rules and the statute. We examine the rules and statute in turn.

DR 1-102(A)(3) provides that '[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.' The term 'dishonesty' in the rule connotes lack of trustworthiness and integrity. In re Leonard, 308 Or 560, 569, 784 P2d 95 (1989). Misrepresentation is a broad term that encompasses the nondisclosure of a material fact. In re Weidner, 310 Or 757, 762 n 2, 801 P2d 828 (1990). A misrepresentation may be a lie, a half-truth, or even silence. In re Greene, 290 Or 291, 298, 620 P2d 1379 (1980). A material fact consists of information that, if disclosed, would have influenced the recipient's conduct. See Leonard, 308 Or at 567-69 (failure to disclose true impact of interlineated items in lease material, because disclosure would have prevented other signatories from initialing lease). Even a misrepresentation that is made with the best of intentions can be a misrepresentation under DR 1-102(A)(3). In re McKee, 316 Or 114, 125, 849 P2d 509 (1993).

A misrepresentation becomes fraud or deceit 'when it is intended to be acted upon without being discovered.' In re Hiller, 298 Or 526, 533, 694 P2d 540 (1985). However, a finding of fraud or deceit under the rule does not require evidence that the recipient of the misrepresentation relied on it. See In re Benson, 317 Or 164, 169, 854 P2d 466 (1993) ('It is enough that the accused tried to mislead.').

The prohibitions against dishonesty, fraud, deceit, and misrepresentation in DR 1-102(A)(3) are not limited to litigation or even to the representation of clients. Hiller, 298 Or at 532. To establish a violation of DR 1-102(A)(3), the Bar, at a minimum, must prove that the lawyer knowingly misrepresented a material fact. Hiller, 298 Or at 532.

As noted, the accused's answer to the Bar's complaint admitted the conduct alleged, and the accused notes that 'the evidence that the Bar presented [during the two-day hearing before the trial panel] did nothing more than establish what [he] had repeatedly admitted.' It is undisputed that the accused made affirmative misrepresentations to both Becker and Adams, and that he omitted material facts in his conversations with them. The accused also testified that his conduct was deceitful: He wanted Becker and Adams to believe that he was a chiropractor who wanted to work for CMR, and he intended to have both Becker and Adams make damaging statements about CMR's file-review practices.

We turn to the Bar's allegation that the accused violated DR 7-102(A)(5). That rule provides that, in the course of representing a client or the lawyer's own interests, 'a lawyer shall not * * * [k]nowingly make a false statement of law or fact.' To violate the rule, the false statement must be made with at least a knowing or reckless mental state. Weidner, 310 Or at 766. The focus of the rule is on the falsehood; it is of no significance that the recipient of the false statement was not misled by it. See In re White, 311 Or 573, 586, 815 P2d 1257 (1991) (irrelevant whether court was misled by lawyer's false statements). A lawyer violates DR 7-102(A)(5) by misrepresenting his or her identity and purpose when contacting someone who is likely to be adverse to the lawyer's client. Chambers, 292 Or at 680-81.

In this case, the accused admits that he made a false statement to Becker when he told Becker that he was a chiropractor and that he made several false statements to Adams. For example, he told Adams that he saw patients and performed independent medical examinations, which he does not do, and that he was interested in working for CMR, when in fact he was not.

Finally, we consider the Bar's allegation that the accused violated ORS 9.527(4). That statute provides that this court may

'disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that * * * [t]he member is guilty of willful deceit or misconduct in the legal profession[.]'

Willful deceit or misconduct is synonymous with intentional deceit or misconduct: It is conduct that is intended to cause a particular result. See In re Morris, 326 Or 493, 502 n 2, 953 P2d 387 (1998) (distinguishing between knowing and intentional misconduct). The same conduct may violate both ORS 9.527(4) and DR 1-102(A)(3). For example, this court has held that a lawyer who endorsed another person's name on a check willfully violated both the statute and engaged in deceit under the disciplinary rule. In re Yacob, 318 Or 10, 17, 860 P2d 811 (1993). In this case, the accused admits that his conduct was both deceitful and intentional.

IV. PROPOSED EXCEPTIONS TO RULES AND STATUTE

The accused contends that this court should adopt an investigatory exception to the disciplinary rules and the statute. He asks this court to adopt the following exception:

'[A]s long as misrepresentations are limited only to identity or purpose and [are] made solely for purposes of discovering information, there is no violation of the Code of Professional Responsibility.'

According to the accused, such an exception is necessary if lawyers in private practice, like their counterparts in the government, are to be successful in their efforts to 'root out evil.'

The trial panel refused to recognize an exception to the rules or statute either for government lawyers or lawyers in private practice. It held that '[t]he standards of conduct provided by the disciplinary rules apply to all members of the Bar, without exception.' The trial panel also stated that, in failing to prosecute the SAIF and DOJ lawyers about whom the accused had complained in 1992, the Bar erroneously had relied on a 'prosecutorial exception' to the rules. It warned that the Bar's 'continued reliance on such an exception' will lead to more situations, such as occurred in this case, 'where [the] Accused was seeking evidence of fraudulent conduct by CMR, and properly alleges that his attempt to uncover fraud is no less important than SAIF's attorneys' attempts.'

Before this court, the United States Attorney for the District of Oregon, appearing as amicus curiae, objects to the trial panel's holding that there is no 'prosecutorial exception' to the Code of Professional Responsibility in Oregon. She argues that the trial panel reached that conclusion 'without examining the important purposes that are served by legitimate law enforcement undercover operations.' The United States Attorney explains that the United States Department of Justice 'regularly supervises and conducts undercover operations in Oregon that necessarily involve a degree of deception.' Such covert operations involve both civil and criminal cases, ranging from enforcement of civil rights statutes to international narcotics conspiracies. She contends that federal courts long 'have upheld the use of deceptive law enforcement tactics' and that she has 'not found a single case in which deception and subterfuge are prohibited as a tool of law enforcement.' The United States Attorney asks this court to adopt the following rule:

'Government attorneys who advise, conduct or supervise legitimate law enforcement activities that involve some form of deception or covert operations do not violate DR 1-102(A)(3).'

The Attorney General for the State of Oregon agrees with the United States Attorney. He contends that this court should

'not interpret DR 1-102(A)(3) in a manner that would determine that government attorneys who advise, conduct or supervise legitimate law enforcement activities that involve covert operations violate that disciplinary rule.'

The accused and, to a lesser extent, the United States Attorney, point to legal commentary and authority from other jurisdictions for the argument that this court should recognize an exception to the disciplinary rules that prohibit conduct involving dishonesty, fraud, deceit, misrepresentation, or false statements of law or fact. Those authorities assert that public policy favors an exception that, at the least, allows investigators and discrimination testers to misrepresent their identity and purpose when they are investigating persons who are suspected of engaging in unlawful conduct. See David V. Isbell and Lucantonio N. Salvi, Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Geo J Legal Ethics 791, 801-04 (1995) (so stating). The rationale for such an exception is that there may be no other way for investigators or discrimination testers to determine if a person who is suspected of unlawful conduct actually is engaged in unlawful conduct. Therefore, the argument goes, the public benefits more from allowing lawyers to use deception than allowing unlawful conduct to go unchecked. Id. at 802; see also Apple Corps Ltd. v. International Collectors Soc., 15 F Supp 2d 456, 475 (D NJ 1998) (lawyers in private practice may use 'an undercover investigator to detect ongoing violations of the law * * *, especially where it would be difficult to discover the violations by other means'). But see Sequa Corp. v. Lititech Inc., 807 F Supp 653, 663 (D Colo 1992) (lawyers in private practice may not use deception to investigate disciplinary violations rather than reporting conduct to authorities).

The Oregon Consumer League, Fair Housing Counsel of Oregon, Oregon Law Center, and numerous individual lawyers, also appearing as amici curiae, object to suggestions that only government lawyers should be exempt from certain rules of professional conduct. They contend that there is no principled reason to permit government lawyers to engage in covert operations, but to label the same practices by the private bar as 'unacceptable vigilantism' even if it, too, is for the purpose of rooting out fraud and illegality. Accordingly, those amici propose the following rule:

'Provided that the conduct does not violate any other provision of law or Disciplinary Rule, and notwithstanding DR 1-102, DR 7-102 and ORS [9.527(4)], a lawyer, personally or through an employee or agent, may misstate or fail to state his or her identity and/or purpose in contacting someone who is the subject of an investigation for the purpose of gathering facts before filing suit.'

The Bar contends that whether there is or ought to be a prosecutorial or some other exception to the disciplinary rules is not an issue in this case. Technically, the Bar is correct. However, the issue lies at the heart of this case, and to ignore it here would be to leave unresolved a matter that is vexing to the Bar, government lawyers, and lawyers in the private practice of law. A clear answer from this court regarding exceptions to the disciplinary rules is in order.

As members of the Bar ourselves -- some of whom have prior experience as government lawyers and some of whom have prior experience in private practice -- this court is aware that there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices, and that lawyers in both the public and private sectors have relied on such tactics. However, ORS 9.490(1) provides that the rules of professional conduct 'shall be binding upon all members of the bar.' (Emphasis added.) Faithful adherence to the wording of DR 1-102(A)(3), DR 7-102(A)(5), ORS 9.527(4), and this court's case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements. In our view, this court should not create an exception to the rules by judicial decree. Instead, any exception must await the full debate that is contemplated by the process for adopting and amending the Code of Professional Responsibility. See ORS 9.490(1) (describing process for formulating rules of professional conduct). Furthermore, this court is prohibited from inserting into ORS 9.527(4) an exception that the statute does not contain. ORS 174.010. That statute applies to a member of the bar 'whenever * * * [t]he member is guilty of willful deceit or misconduct in the legal profession[.]' We decline to adopt an exception to DR 1-102(A)(3) and DR 7-102(A)(5), and we are without authority to read into ORS 9.527(4) an exception that the statute does not contain. Those disciplinary rules and the statute apply to all members of the Bar, without exception.

V. ACCUSED'S CONSTITUTIONAL DEFENSE

We turn to the accused's final theory of defense, which is that the Bar's decision to prosecute him in this case violated his rights under the state and federal constitutions. As we have explained, the accused believes that the Bar does not prosecute government lawyers who participate in investigations that involve deception, but it does prosecute lawyers in private practice who engage in similar conduct. According to the accused, the Bar thereby has 'created two classes of attorneys' in violation of Article I, section 20, of the Oregon Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In the accused's view, the Bar's decision to dismiss his 1992 complaint against SAIF and DOJ lawyers, who allegedly had participated in Operation Clean Sweep, demonstrates the constitutionally impermissible classification system that the Bar has created. The trial panel rejected that argument. It reasoned:

'To the extent that SAIF's lawyers were not prosecuted, they were not prosecuted because of a lack of evidence, and not because of any prosecutorial immunity, notwithstanding the fact that the parties have raised the immunity issue in these proceedings.'

The Bar does not respond specifically to the accused's argument, stating only that 'the SPRB dismissed the [accused's 1992 complaint against SAIF and DOJ lawyers] based on lack of evidence.'

The accused is correct that discriminatory application of a generally applicable law might violate Article I, section 20, or the Equal Protection Clause of the Fourteenth Amendment. See State v. Clark, 291 Or 231, 239, 630 P2d 810 (1981) (Article I, section 20, 'reaches forbidden inequality in the administration of laws'); United States v. Armstrong, 517 US 456, 465, 116 S Ct 1480, 134 L Ed 2d 687 (1996) (selective prosecution claim cognizable under Fourteenth Amendment equal protection principles); Village of Willowbrook v. Olech, ___ US ___, 120 S Ct 1073, 1074, 145 L Ed 2d 1060 (2000) ('class of one' can support equal protection claim if plaintiff alleges treatment different from others and no rational basis for difference in treatment). To prevail on such a claim, however, the accused must show that the Bar's decision not to prosecute SAIF and DOJ lawyers was based on an unconstitutional favoritism for those persons. See Hunter v. State of Oregon, 306 Or 529, 533, 761 P2d 502 (1988) (Article I, section 20, prohibits, among other things, prosecution based on 'impermissible factors such as race or personal animosity or the absence of any standards that could ensure consistency'); Oyler v. Boles, 368 US 448, 456, 82 S Ct 501, 7 L Ed 2d 446 (1962) (identifying impermissible classifications such as 'race, religion, or other arbitrary classifications' for purposes of equal protection analysis). Even assuming that it is impermissible under either constitution for the Bar to distinguish between government lawyers and lawyers in private practice in choosing whether to prosecute alleged violations of the Code of Professional Responsibility, the accused has failed to make the requisite showing in this case that the Bar follows that practice. The accused has shown only that the Bar believed that it did not have evidence to press charges against certain government lawyers in response to his complaint in 1992. The accused has not demonstrated that the Bar has a policy of prosecuting lawyers in private practice but not prosecuting government lawyers who are accused of violating the Code of Professional Responsibility. On the facts of this case, we reject the accused's claim that the Bar violated Article I, section 20, or the Equal Protection Clause, in bringing this proceeding.

Having rejected the proposal that this court adopt an investigatory exception to DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4), and concluded that the accused's constitutional defense is unavailing, we hold that the accused violated DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4). We turn to the matter of sanction.

VI. SANCTION

The Bar contends that the accused should be suspended from the practice of law for at least 120 days. The accused replies that no sanction or, at most, a public reprimand is appropriate under the circumstances.

This court looks to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) for guidance in determining the appropriate sanction for violations of the disciplinary rules. See In re Schaffner, 323 Or 472, 478, 918 P2d 803 (1996) (so stating). ABA Standard 1.1 provides:

'The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.'

Accordingly, the purpose of lawyer discipline is not to punish the lawyer. See In re Huffman, 328 Or 567, 587, 983 P2d 534 (1999) (so stating).

To determine the appropriate sanction, this court first considers the duty violated, the accused's mental state, and the actual or potential injury caused by the accused's misconduct. In re Devers, 328 Or 230, 241, 974 P2d 191 (1999). Considering those three factors leads to a suggested sanction, which this court may choose to impose or may modify after examining aggravating and mitigating circumstances and this court's case law. Id.

A. Duty Violated

A lawyer owes the public a duty of honesty and personal integrity. In re Unrein, 323 Or 285, 288, 917 P2d 1022 (1996). By misrepresenting his identity and purpose and making other false statements when he called Becker and Adams with the intention of deceiving them, the accused violated his duty to the public to maintain personal integrity. The introduction to ABA Standard 5.0 explains that '[t]he public expects the lawyer to be honest[.]' The commentary to ABA Standard 5.13 further explains that, if the lawyer's conduct 'is directly related to his or her professional role, discipline is required' even if the conduct at issue is not criminal.

B. Mental State

The ABA Standards identify three levels of mental state: intentional, knowing, and negligent. ABA Standards at 6. An intentional act is one done with 'the conscious objective or purpose to accomplish a particular result.' ABA Standards at 7. The accused concedes, and the record supports the finding, that he acted intentionally when he misrepresented his identity to Becker and Adams, and that he made false statements to them for the purpose of obtaining damaging admissions about CMR's file-review practices. Nonetheless, the accused argues, this court should view his mental state as negligent because, based on the letters from the Bar's disciplinary counsel to him, he believed that he was acting ethically when he made the misrepresentations and false statements. As we have explained previously, the accused's reliance on the Bar's letters was not reasonable. We conclude that the accused acted intentionally.

C. Injury

A lawyer's conduct may cause actual or potential injury to a client, the legal system, the legal profession, or the public. ABA Standards at 6-7. In this case, there is no evidence, and the Bar does not contend, that the accused's conduct caused actual injury to Becker or Adams, because neither of them revealed any damaging information to the accused. However, the Bar contends that the accused's conduct created the possibility of injury to CMR. If Householder had not known the accused, and that he was a lawyer, Adams might have given the accused confidential information about CMR's file-review practices that he would not have divulged if he had known the accused's true identity and purpose.

The accused contends that there was no potential for injury to CMR, because he eventually obtained the information that he sought through discovery. That argument is without merit. When the accused engaged in the conduct at issue in this case, he did so with the intent that CMR personnel would make damaging statements about their file review practices. The potential for injury that existed at that time was that Becker or Adams would make statements that could affect their legal rights regardless of any later lawful disclosure through discovery.

ABA Standard 5.13 provides:

'Reprimand is generally appropriate when a lawyer knowingly engages in any [other than criminal] conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.'

(Emphasis added.) By contrast, ABA Standard 5.11(b) provides that disbarment is generally appropriate when:

'a lawyer engages in any other [than criminal] intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.'

(Emphasis added.)

D. Aggravating and Mitigating Factors

Aggravating factors in this case include multiple violations of the rules during the accused's telephone calls to CMR personnel, ABA Standard 9.22(d), and the accused's substantial experience in the practice of law, ABA Standards 9.22(i).

The Bar contends that another aggravating factor is that the accused engaged in deception during the disciplinary process by withholding evidence. See ABA Standards 9.22(f) ('submission of false evidence, false statements, or other deceptive practices during the disciplinary process'). Specifically, it argues, the accused failed to disclose until well into the investigation of Adams's complaint that he had made tape recordings of his conversations with Becker and Adams. He also stated in his January 9, 1996, letter that he was unable to locate the transcript of his telephone conversation with Adams, but admitted at the hearing that he had a copy of the transcript when that letter was sent.

The accused offers four explanations for his responses to the Bar's inquiries and investigation. First, he did not take Adams' complaint seriously for several months, because he believed that he was entitled to conduct a 'private sting' against CMR. Second, the accused was 'religiously [sic] indignant' that the Bar did not dismiss Adams's complaint, because his sole purpose in contacting Becker and Adams was to 'root out fraud.' Accordingly, his responses to the Bar's inquiries during the initial period of its investigation were, in his words, 'nasty' and 'arrogant,' which he regrets. Third, the accused admitted to all the conduct alleged in the Bar's complaint, and he did not believe that matters such as the transcript of his conversation with Adams were relevant in light of those admissions. Finally, the accused was involved in litigation with State Farm and CMR during the same time that the Bar proceedings were under way, and he feared releasing any documents or information that would compromise that litigation.

Our review of the record reveals that the accused was not always as candid as he should have been during the Bar's investigation. Regardless of a lawyer's feelings about the merits of a complaint, he or she must be honest and cooperative with the Bar. In re Wyllie, 327 Or 175, 182, 957 P2d 1222 (1998). However, the Bar did not charge the accused with violating DR 1-103(C) (duty to cooperate with disciplinary investigation). Our review of the record also persuades us that there was a degree of misunderstanding on both sides that hampered communications during the Bar's investigation and that extended into the trial panel proceedings. Accordingly, to the extent that the accused's lack of candor in this case is an aggravating factor, we do not accord it substantial weight.

The Bar suggests that another aggravating factor is that the accused has a record of prior discipline, consisting of a letter of admonition in 1989. ABA Standards 9.22(a). That admonition dealt with a complaint alleging that the accused had over-billed a client for costs and charged an excessive fee. We do not consider that admonition as an aggravating factor here, because it did not involve the same or similar misconduct that is at issue in this case. See In re Cohen, 330 Or __ , __ P2d__ (August 10, 2000).

We turn to mitigating factors. The accused did not act with a selfish motive. ABA Standards 9.32(b). The accused sincerely believed, and still believes, that lawyers must be permitted to make misrepresentations and false statements of identity and purpose to discover information without violating the disciplinary rules. In addition, two witnesses testified that the accused has a good character and reputation. ABA Standards 9.32(g).

E. Oregon Case Law

This court has stated that any violation of DR 1-102(A)(3) is a 'serious matter,' Greene, 290 Or at 297, and it views the making a false statements of fact in violation of DR 7-102(A)(5) as an act of moral turpitude, Chambers, 292 Or at 681. In other situations, violations of those rules have resulted in significant suspensions from the practice of law. However, this proceeding has brought to the surface an issue that has been festering for some time, namely, whether any lawyer may misrepresent his or her identity or purpose to gather information without violating the Code of Professional Responsibility. Statements by parties amici indicate that lawyers in both private practice and those who work in the public sector in good faith have held the mistaken belief that they ethically are permitted to misrepresent their identity and purpose, and to encourage others to do so, to acquire information. Thus, it is a fortuity that the accused in this case, rather than some other Oregon lawyer, is the subject of these proceedings.

As we have explained, the accused was mistaken in his belief that a lawyer is entitled to misrepresent identity and purpose to gather information without violating the Code of Professional Responsibility and ORS 9.527(4). Nonetheless, the briefing in this case reveals that the accused is not alone among lawyers in holding that belief. The Bar's June 16, 1993, letter to the accused in response to his complaint about SAIF and DOJ lawyers indicates that the Bar also may believe there might be exceptions to the rules and statute. However, as we have explained, the wording of DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4), as well as this court's case law, do not permit recognition of an exception to those rules and statute. The rules and statute apply to all members of the Oregon State Bar, without exception.

In this case, the accused admitted fully and freely in his answer to the Bar's complaint that he had engaged in the conduct the Bar alleged. He again admitted to that conduct during the trial panel proceedings. His candor with the Bar during its investigation was not exemplary but, as noted, the Bar did not charge him with violating DR 1-103(C). Under the circumstances of this case, therefore, we conclude that a public reprimand is the appropriate sanction.

The accused is reprimanded.

2. Report of the DR 1-102 Study Group (11/9/00)

(Presented at the November 18, 2000 Board of Governors meeting.)

Action Recommended: Consider the recommendation of the DR 1-102 Study Group to forward two alternative proposals for amending DR 1-102 to the House of Delegates.

Background: The BOG appointed the DR 1-102 Study Group (roster attached) in September 2000 to consider whether the disciplinary rules should be amended in light of the Supreme Court’s decision in In re Gatti, 330 Or 517 (2000). In that decision, the Court declined to recognize any exception to the prohibition against lawyers engaging in deceit or misrepresentation, even for lawyers working in law enforcement or with discrimination 'testers.' On the contrary, the Court held that the disciplinary rules apply to all lawyers in the same way and not only do they prohibit lawyers from engaging in misrepresentation, they prohibit lawyers from 'encouraging' others to do so. The Court suggested that if an exception was desired, the disciplinary rules would have to be amended pursuant to statute rather than by court decision. The US Attorney, the Oregon Attorney General, local District Attorneys and others expressed concern about the decision in Gatti and its apparent rejection of traditional techniques for lawyer involvement in civil and criminal law enforcement.

The Study Group was charged with recommending to the BOG how the situation could be ameliorated. The Study Group met on three occasions for approximately two hours each. Drafting and circulation of proposals, review of extensive resource materials and memoranda took place before the first meeting and between meetings. The group’s deliberations were extensive, professional, thoughtful and serious. Ultimately, the study group answered two questions:

1. Should the Disciplinary Rules be amended in light of the Oregon Supreme Court decision in the case of In Re Gatti?

2. If so, how should they be amended?

The Study Group’s answers and reasons for the answers are set forth below. The discussion of the Study Group’s decision on question 1 contains a majority and minority report.

1. Should the Disciplinary Rules be amended in light of the decision in the case of In Re Gatti?

By vote of 9 to 4, the group answered question 1 in the affirmative. Those voting 'yes' were Sutherland, Udziela, Ingebretson, Clarke, Williamson, Marshall, Shepherd, Thornburgh and Chamberlain.

Those voting 'no' were Green, Wax, Hingson and Anderson.

Majority Report

The study group was mindful of the seriousness of changing the disciplinary rules in response to In re Gatti. The majority balanced this concern against the impact that the case already has had on prosecutors, civil rights practitioners, and law enforcement agencies. The majority believed that the social cost of prohibiting involvement by lawyers in testing for discrimination in housing and employment and in otherwise supervising, directing or encouraging undercover investigations was too great a price to pay.

The study group was nearly unanimous in the sentiment that one rule should cover all lawyers, whether government prosecutors or private lawyers. Further, the study group was unanimous in its belief that any change in the rules should keep such activity to the narrowest possible scope while still achieving the public benefits society demands from law enforcement and the profession.

A majority of the committee was also influenced by the potential for legislative enactments to permit law enforcement lawyer supervision of covert operations if the disciplinary rules are not changed. This might remove significant portions of the membership from ethical supervision by the Bar and the Supreme Court and could set up a constitutional confrontation between the legislative and executive branches on one hand and the judicial branch on the other. Indeed, Congress was attempting at the time of our study group meetings to consider a bill to repeal the McDade amendment, which makes federal prosecutors subject to state ethical rules and discipline. Also, the Study Group reviewed a proposal for a bill to be submitted to the Oregon Legislature that would allow prosecutors and AAGs to participate in covert investigations in a way they believe they are currently not permitted under the decision in Gatti.

In sum, a majority of the committee believed that the social benefits require that lawyers be permitted to engage in covert activities to enforce laws and rights that cannot be as effectively enforced in any other way. The majority was further motivated by the fact that federal or state legislative enactments are likely to mandate such a result in a manner that we cannot be certain would be as carefully considered and narrowly construed and drafted as rules the Bar and the Supreme Court would impose. To take any other course would be to remove lawyers from any potential of restraining and guiding law enforcement agents away from the harmful acts and effect that might occur without their otherwise ethical assistance when that assistance is most needed.

Minority Report

The Oregon Supreme Court’s decision in In re Gatti does not require any changes to the Disciplinary Rules.

 1. This is an unnecessary use of the Disciplinary Rules(i.e., there is no need for a change).

The court’s decision in Gatti does not change Oregon law, but merely reflects that the ethical obligations under the DR 1-102 and ORS 9.527(4) are the same for all Oregon lawyers. In dicta, the court stated that:

'…this courts’ case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit or misrepresentation, or false statements.'

At least since the enactment of the Disciplinary Rules in 1970 it has been 'professional misconduct for a lawyer' to:

'…engage in conduct involving dishonesty, fraud, deceit or misrepresentation' and 'knowingly assist or induce another to do so or to do so through the acts of another.' DR 1-102(A)(1) and (3).

There has never been an disciplinary proceeding against a lawyer for advising a client to conduct lawful undercover activities. The discussion of this issue in Gatti is dicta, not the holding, and is being unnecessarily extrapolated by government lawyers to limit or prohibit their ability to give advice to law enforcement agencies. (We recognize that the AG apparently uses his own investigators to conduct covert investigations into violations of regulatory law, which is a different relationship than exists between prosecutors and law enforcement.)

 Existing Oregon law does not limit a lawyer’s ability to provide legal advice to a client or other independent actor concerning lawful undercover activities. The concern expressed in response to Gatti arises in some part because many lawyers have extended their involvement beyond being an advisor to being a full participant in law enforcement activities. The lawyer-client (or lawyer-independent actor) relationship insulates the lawyer from any ethical liability resulting from advice given by the lawyer. It does not, however, insulate a lawyer from direct or indirect, active participation in prohibited conduct. A client or other independent actor can do many things that a lawyer cannot do. The dilemma now faced by prosecuting lawyers and, perhaps, the Attorney General, is a function of the way they do business.

 2. This is an improper use of Disciplinary Rules (i.e., it is a corruption of the ethics rules to approve conduct which involves dishonesty, fraud, deceit or misrepresentation).

 There is no principled reason why any lawyer should be given any prerogative to do things that are contrary to the most basic tenet of our profession, i.e., integrity and honesty. Any rule which permits any dishonesty, fraud, deceit or misrepresentation corrupts a fundamental principle that all lawyers rely on to conduct business in an ethical, reasonable and predictable way. A desirable end does not justify a corrupt means. If we engage in corrupt conduct, we undercut the integrity of our profession. It is virtually impossible to draw any meaningful lines on this 'slippery slope of misconduct.' When does a lawyer step over the line? Does the end always justify the means?

 It is dangerous to use the ethical rules as an imprimatur or certain kinds of misconduct in certain situations. Such conduct corrupts the profession and all ethical standards.

2. How should the Disciplinary Rules be amended?

 At the end of this memo are two alternative amendments. Proposal #1 would be a new section (D) to DR 1-102. Proposal #2 would be an amendment to existing DR 1-102(A). Each is discussed in turn below.

Proposal #1

Prior to In Re Gatti, many lawyers believed it to be ethical to conduct or supervise lawful covert investigations. In the judgment of a 10-3 majority of the Study Group, Proposal #1 would best harmonize the disciplinary rules with the previous belief.

 Proposal #1 creates a rule applicable uniformly to all lawyers and to civil and criminal proceedings. It makes clear that DR 1-102(A)(3) and DR 7-102(A)(5) are not violated when lawyers 'conduct', 'supervise', or 'advise about lawful covert activity… '. For example, the Attorney General could direct an investigator whom the Attorney General employs to pose as a consumer to test a merchant’s compliance with consumer protection laws. Similarly, a lawyer in private practice could employ a private investigator to test compliance with housing discrimination statutes.

 Proposal #1 neither expands nor contracts substantive law governing the legality of investigative techniques. The phrase 'lawful covert activities' means that the proposal could not serve as a shield for any activity prohibited by statute or by judge-made law.

The proposal does not trump any disciplinary limitation on a lawyer’s conduct other than DR 1-102(A)(3) or DR 7-102(A)(5). For example, although it would permit an attorney personally to engage in a covert operation, the attorney could not do so if the conduct were 'prejudicial to the administration of justice' or involved contact with a represented person without the consent of the person’s counsel.

Proposal #2

 Six members of the Committee would accept Proposal #2 if Proposal #1 were to be rejected by the Board of Bar Governors. Proposal #2 would allow the legislature or judiciary to authorize lawyers to do indirectly that which the rules prohibit the attorney from doing personally.

Proposal #2 is intended to immunize attorneys from vicarious ethical charges if substantive law in a practice area authorizes the use of covert investigative techniques. For example, if the substantive law authorized the use of covert investigators to obtain facts about housing discrimination, then a lawyer ethically could 'knowingly assist' or 'induce' a 'tester' to misrepresent the tester’s identity and purpose. Proposal #2 would not undercut the holding in In re Gatti regardless of the legality of the investigative technique employed, because the lawyer in Gatti engaged personally in the conduct. Proposal #2 would not allow lawyers to engage personally in deceptive investigative techniques.

Five members of the Study Group said they could not fully evaluate Proposal #2 because existing substantive law does not unambiguously authorize covert activities in practice areas relevant to them. Two members of the committee opposed Proposal #2.

Text of Proposals #1 and #2

Proposal #1

DR 1-102 Misconduct; Responsibility for Acts of Others

(A) It is professional misconduct for a lawyer to:

(1) Violate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another;

(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;

(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) Engage in conduct that is prejudicial to the administration of justice;

(5) State or imply an ability to influence improperly a government agency or official.

(B) A lawyer shall be responsible for another lawyer’s violation of these disciplinary rules if:

(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(C) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(D) Notwithstanding subsection (A)(3) of this rule or DR 7-102(A)(5), it is not misconduct for a lawyer to conduct, supervise or advise about lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise consistent with these disciplinary rules.

 

Proposal #2

DR 1-102 Misconduct; Responsibility for Acts of Others

(A) It is professional misconduct for a lawyer to:

 (1) Violate these disciplinary rules or, except as authorized by law, knowingly assist or induce another to do so, or do so through the acts of another.

  * * *

 [Remainder of rule unchanged.]

 

3. Text of US Attorney’s response to Study Group Report (11/9/00)

(Presented at the November 18, 2000 Board of Governors meeting.)

'This is the United States Attorney’s response to the proposed amendment to DR 1-102, the memorandum to the Board of Bar Governors, and the majority report.

In regard to proposal #1, it is suggested that the language in subparagraph (d), include the following: '…lawful covert activity in the investigation of possible or potential violations of civil or criminal law….' The reason for the inclusion of 'potential or possible' is to make clear that there need not be an actual violation of criminal or civil law.

In regard to the recommendation, background section, I suggest that the second sentence read as follows 'In that decision, the Court declined to recognize a ‘law enforcement exception to DR 1-102’.'

In regard to the majority report, the third paragraph does not accurately reflect the Department of Justice’s position. The Department of Justice does not take the position that its attorneys are exempt from state disciplinary authority. The Department refers its attorneys to state bars in appropriate circumstances. The Department does not seek to remove its attorneys from supervision of state bars. The issue between state bars and the Department has been regarding what standards to apply. In that vein, the Department’s actions during this session of Congress have been to amend, not repeal 28 USC §503(B) (McDade).

I also think its important to note that covert operations have been approved as necessary law enforcement tools, both in the criminal and civil rights areas. See, Sorrells v. United States, 287 US 435, 441-442 (1932); Lewis v. United States, 385 US 206, 207 (1967); Jacobson v. United States, 503 US 540, 546 (1992); United States v. Bramble, 103 F3d 1475, 1477 (9th Cir. 1997).

If after receipt of this letter you have any questions, please do not hesitate to contact me.

Very truly yours,

KRISTINE OLSON

United States Attorney

District of Oregon

/s/ James L. Sutherland

Assistant Untied States Attorney'

 

4. Legal Ethics Committee Recommendation to the BOG (11/13/00)

(Presented at the November 18, 2000 Board of Governors meeting.)

 Action Recommended: Do not change the existing DR 1-102 and have the Legal Ethics Committee prepare an opinion clarifying the impact and application of In Re Gatti, 330 Or 517 (2000).

 Background: The Legal Ethics Committee (LEC) met in an emergency session on November 10, 2000 to consider the changes to DR 1-102 proposed by the DR 1-102 Study Group. The charge of the meeting was to consider two questions, (1) should DR 1-102 be changed, and (2) If DR 1-102 should be changed, how should it be changed.

 The LEC considered the report to the Board of Governors prepared by the DR 1-102 Study Group on November 9, 2000, as well as considerable discussion from the members present. Three members of the LEC were also members of the DR 1-102 Study Group.

 Considerable discussion occurred as the options were presented. Some of the issues of concern to the members of the LEC included:

a. The reaction to the political implications presented by various members of the bar and of the media.

b. The exceptions that would need to be created within the rule, in order to address the specialized concerns and interests.

c. The driving force behind the rapid reconsideration of the DR and the implications presented by the case.

d. Whether, with clarification, the rule, as it currently exists sufficiently addresses the issues in Gatti.

Numerous motions were made and considered, and voted down. These motions all proposed acceptance of various permutations of the proposals put forth by the Study Committee. The LEC expressed concern that the rapid response and changing of the rule to create exceptions allowing what would otherwise be unacceptable behavior could serve to compromise the integrity of the profession. The problem was not with the limitation that Gatti placed on attorney behaviors. The problem was, instead, with the manner with which various attorneys chose to conduct their business.

The LEC passed a motion to advise the Board of Governors not to change the DR and that the LEC should write an opinion clarifying the impact and application of the Gatti case. The LEC should focus on clarifying the line where the level of advice crosses from the permissible advice to the client to engaging in impermissible conduct. This motion passed with a vote of 6 to 1 with one abstention.

5. Text of Oregon Dept. of Justice/US Attorney letter to BOG (11/15/00)

(Presented at the November 18, 2000 Board of Governors meeting.)

'Prior to In re Gatti, paid civil and criminal investigators of the Oregon Department of Justice often conducted lawful convert investigations. Federal agents, acting with the approval of Assistant United States Attorneys, also engaged in lawful covert investigations. In addition, lawyers under our supervision sometimes encouraged investigators employed by other agencies to conduct undercover investigations.

In re Gatti holds that attorneys may not personally misrepresent their identity or purpose. The opinion states that it is unethical for attorneys to 'encourage' another person to misrepresent that person’s purpose or identity in the course of an investigation.

In response to In re Gatti, employees of the Oregon Department of Justice stopped participating in civil or criminal undercover investigations. The Oregon Department of Justice terminated ongoing undercover consumer protection investigations. Federal prosecutors were instructed not to approve undercover investigations. Under existing federal policy, Special Agents of federal law enforcement agencies are not allowed to conduct certain types of investigations without the approval of an Assistant United States Attorney. In re Gatti has thus had the inescapable effect of prohibiting law enforcement officials from using undercover investigations to fulfill their responsibilities.

The suspension of undercover activity significantly impairs our ability to carry out our law enforcement functions across a wide range of civil and criminal enforcement duties. In addition, the effect of In re Gatti is to deprive law enforcement agents of a lawyer’s moderating counsel.

Proposal #1, forwarded to you from the Study Group formed on the Supreme Court’s suggestion, would restore our ability to employ lawful undercover investigative techniques. It would also allow us again to freely provide direction and encouragement to investigators who may consult with us but are not employed by our respective offices. We prefer Proposal #1 to Proposal #2 because the former would eliminate the necessity of substantive legislation while the latter would necessitate legislation to restore us to the status quo ante.

We endorse Proposal #1 as the best alternative presented by your Working Group. However, we have not advocated an amendment that permits lawyers personally to engage in undercover activities. Therefore, we would also support a proposal that authorizes lawyers to provide counsel, approval, authorization and other forms of guidance to investigators engaged in undercover investigations, without allowing attorneys personally to engage in misrepresentations of their purpose or authority. A proposal along these lines should permit an attorney employed as a police officer to perform all of the duties of a police officer, including engaging in undercover investigations.

Sincerely,

/s/ Hardy Myers    

Attorney General    

/s/ Kristine Olson

United States Attorney'

6. Text of ODAA letter to BOG (11/15/00)

(Presented at the November 18, 2000 Board of Governors meeting.)

'Prior to the decision of In re Gatti, District Attorneys and police officers worked in concert conducting lawful undercover investigations into drugs, organized crime and other criminal matters. The prosecutors requested the investigations or gave advice to officers conducting such investigations, knowing that undercover activity did not violate the law and that the results were admissible as evidence.

In re Gatti at pages 529-533 states that attorneys may not ethically 'encourage' other persons to make representations such as those that take place in undercover investigations.

As a result of this decision many District Attorneys no longer advice police agencies involved in on-going drug, organized crime, and prostitution investigations. This impairs law enforcement’s ability to carry out its functions effectively. Not only are police agencies unable to obtain legal advice concerning undercover investigations, but the public is deprived o the likely moderating influence offered by prosecutors to such investigations.

The Oregon District Attorneys Association is not seeking a modification of the Disciplinary Rules that would allow District Attorneys or their deputies to personally make misrepresentations. They do request an amendment be approved to allow them to do what they could before In re Gatti. We believe that the Study Group’s Proposal #1 would accomplish that purpose without further action. As a second choice, Proposal #2 is an acceptable alternative, but legislative action may well be required to specifically allow prosecutors to direct and advise police investigators engaged in undercover investigations.

 

Sincerely,

/s/ Jack L. Banta

ODAA President