Porter, In re

• Decision Date: 26 September 1978
• Parties: In re Complaint as to the conduct of Charles O. PORTER, Accused. OSB 1248; SC 25631. . *
• Court: Oregon Supreme Court

Page 744

584 P.2d 744

283 Or. 517

In re Complaint as to the conduct of Charles O. PORTER, Accused.

OSB 1248; SC 25631.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted July 11, 1978.

Decided Sept. 26, 1978.

John E. Jaqua, Eugene, argued the cause for the accused. With him on the briefs were Jack L. Mattison and Jaqua & Wheatley, P. C., Eugene.

Frederick L. Decker, of Goode, Goode, Decker, Beckham & Nelson, P. C., Albany, argued the cause for the Oregon State Bar. With him on the brief was Robert S. Gardner, of Ringo, Walton, Eves & Gardner, P. C., Corvallis.

Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON and LENT, JJ.

PER CURIAM.

This is a disciplinary proceeding by the Oregon State Bar charging the accused with four counts of unethical conduct. The charges arose from the representation by the accused of 14 women, some of whom were present at or participants in an incident in which a Lane County sheriff's deputy was killed.

The specific charges were: (1) conflict of interest arising out of the representation of multiple clients; (2) improper communication with a person represented by counsel; (3) improper interference with plea negotiations; and (4) the acts alleged in the first three charges, taken in the aggregate, were "detrimental and prejudicial to the honor, integrity and standing of (the) profession of lawyer, the practice of law and the administration of justice * * *."

The Trial Board of the Bar, after a hearing at which testimony was offered, found that the accused was not guilty of charges (1), (2) and (3), but was guilty of charge (4). The Trial Board recommended that the accused be administered a public reprimand. The Disciplinary Review Board of the Bar concluded that the accused was not guilty of any of the four allegations of misconduct, and recommended that the charges be dismissed. The case now comes before this court on the petition of the accused to adopt the decision of the Disciplinary Review Board.

The principal charge against the accused is that in undertaking to represent all 14 women he had a conflict of interest, in violation of Disciplinary Rule 5-105 which provides:

"Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.

"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proferred employment, except to the extent permitted under DR 5-105(C).

" * * *r D

"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

" * * *."f §

The facts giving rise to the conflict of interest charge are summarized by the Disciplinary Review Board as follows:

"This case arose out of a criminal prosecution resulting from the killing of a Lane County Deputy Sheriff. The Sheriff was apparently killed by Belinda Leigh Lederer, who at the time was a member of a 'family' (Children of The Valley of Life). The 'family' consisted of a male and several female members. The male family member, one Brooks, was indicted and acquitted of the homicide of the Lane County Deputy. Belinda Leigh Lederer was indicted and was represented by Jack A. Gardner and F. William Honsowetz, members of the Oregon State Bar.

"Several other female members of the 'family' were found to be material witnesses and some of them were possible Defendants in other criminal charges arising out of the homicide e. g. moving the body, theft of property, illegal use of a police car, etc.

"The Accused at first represented all the females in the 'family' and Mr. Brooks. ¹ He resigned as counsel for Brooks and later, after discussing possible conflicts in representing the other female 'family' members with Judge Rodman, he resigned that representation as well. Other lawyers were appointed, and after Brooks was acquitted all female members of the 'family' wanted to retain the Accused as their lawyer. A hearing was held before Judge Helen Frye. Judge Frye relieved court appointed counsel for approximately 14 of the female members, and the Accused commenced representing them. One or two female family members (in addition to Belinda Lederer) continued to be represented by court appointed counsel. The Accused was not court appointed.

"The 'family' was close knit. The women represented by the Accused were concerned with Belinda Lederer as well as themselves. The Accused was told by his clients to try to get the District Attorney to accept a plea to manslaughter from Belinda, plus immunity for them. In addition, there was some question as to whether the Accused's clients would take the 5th Amendment in the event of a trial. The clients instructed the Accused to tell the District Attorney that they would testify only if all were granted immunity."

The Trial Board made the following finding on the conflict of interest charge:

"The trial board unanimously considers that the Accused's representation of the clients enumerated in paragraph III of the first cause of complaint falls within the provisions of D.R. 5-105 relating to multiple employment and conflict of interest. The Accused admitted this (Tr. 210).

"The trial board finds, however, that each client did consent to the Accused's representation of her (see exhibit 5). A majority of the trial board further found that the evidence established that a full and complete disclosure had been made to each client by the Accused (Tr. 237; 255-56). In so deciding, the majority relied upon exhibit 5 and upon the Accused's testimony. The dissenting member found clear and convincing proof of consent, but no clear and convincing proof of full disclosure within the meaning of D.R. 5-105(C)."

The Disciplinary Review Board held that "there was a potential conflict in representing all the females," but concluded as follows:

"As to this charge the Trial Board found the Accused not guilty essentially because the clients consented after full disclosure. The record supports this finding (Ex. 5)."

In determining whether a conflict of interest exists for purposes of DR 5-105(A), it is instructive to consider some of the ethical principles on which the disciplinary rule is based. Ethical Considerations 5-14 and 5-15 of the Code of Professional Responsibility offer guidance in this area. EC 5-14 provides:

"Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant." (Footnotes omitted)

EC 5-15 states in part:

"If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially." (Footnote omitted)

It is also useful to examine the predecessor to DR 5-105. Rule 7 of the Oregon State Bar's Rules of Professional Conduct was in effect until 1971, and it provided in part:

" * * *. A member of the state bar shall not represent conflicting interests, except with the express consent of all parties concerned after a full disclosure of the facts, and then only when acting in the capacity of arbitrator. Within the meaning of this rule, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which his duty to another client requires him to oppose."

Finally, as stated in Drinker, Legal Ethics 104 (1953), with reference to Canon 6 of the Canons of Professional Ethics of the American Bar Association (superseded by the Code of Professional Responsibility, including Disciplinary Rule 5-105):

"In observing the admonition of Canon 6 to avoid the representation of conflicting interests, the lawyer must have in mind not only the avoidance of a relation which will obviously and presently involve the duty to contend for one client what his duty to the other presently requires him to oppose, but also the probability or possibility that such a situation will develop. * * * "

In short, if the representation of multiple clients is such that the lawyer's independent professional judgment on behalf of one client Will be adversely affected (an "actual" conflict), or Is likely to be adversely affected (a "potential" conflict), the representation is improper unless the exception provided in DR 5-105(C) applies.

It follows that the issues to be decided are: (1) whether there existed a conflict of interest, either actual or potential, and (2) if so, whether the requirements of DR 5-105(C) for disclosure and consent were met.

The existence of a conflict

In his testimony, the accused admitted that at least a Potential conflict of interest existed in the representation of the 14 women. According to the accused, that conflict arose from the fact that some...