In re Conry
| Decision Date | 15 July 2021 |
| Docket Number | SC S067502 |
| Citation | 491 P.3d 42,368 Or. 349 |
| Court | Oregon Supreme Court |
| Parties | IN RE Complaint as to the CONDUCT OF Brian CONRY, OSB No. 822245, Respondent. |
David J. Elkanich, Buchalter, A Professional Corporation, Portland, argued the cause and filed the briefs for respondent. Also on the briefs were Trisha Thompson and Peter R. Jarvis, Holland & Knight LLP, Portland.
Susan R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar.
A dissatisfied former client of respondent Brian Conry posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that client had been convicted of two crimes, which he specifically identified. As to one review, respondent also disclosed client's full name. The Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 1.6, for disclosing information relating to the representation of a client. A trial panel of the Disciplinary Board agreed, rejecting respondent's assertions either that the information was not within the scope of the rule, or that he was privileged to disclose it under one of the rule's exceptions. The trial panel concluded that respondent should be suspended for 30 days, and respondent sought review from this court. We agree with the trial panel in part, but we conclude that respondent should be publicly reprimanded rather than suspended.
Broadly speaking, the issues in this case are whether respondent revealed information relating to the representation of a client and, if he did, whether he was privileged to do so to respond to the client's online reviews. Before turning to the facts, we first set out the rules implicated by this case.
In general, an attorney is prohibited from revealing "information relating to the representation of a client." The relevant provision states:
"(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)."
The phrase "information relating to the representation of a client" is defined broadly. It is not limited to information subject to the attorney-client privilege; it also includes information that would be embarrassing or detrimental to the client:
"(f) ‘Information relating to the representation of a client’ denotes both information protected by the attorney-client privilege under applicable law, and other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
The broad scope of the initial prohibition against revealing client confidences is, however, subject to a number of exceptions. They include: to prevent a client from committing a crime ( RPC 1.6(b)(1) ), to secure legal advice about complying with the ethical rules ( RPC 1.6(b)(3) ), and to comply with laws or court orders ( RPC 1.6(b)(5) ). The exception at issue in this case is the "self-defense" exception:
The following facts appear to be undisputed.
Respondent is a solo practitioner who primarily practices immigration law and criminal law. He was hired by client, who was facing deportation because of convictions for second-degree burglary and second-degree theft, both of which had been treated as misdemeanors. Respondent represented client between 2010 and 2015. In 2015, client had been ordered deported, and client then took his case to a different law firm.
Shortly after the second firm took up client's representation, an attorney there, Inna Levin, sent respondent a letter in April 2015. Levin asserted that respondent had conceded in the immigration proceedings that client's crimes were "crimes involving moral turpitude" that would justify client's deportation. Levin maintained that, after 2013 opinions by the United States Supreme Court, client's crimes no longer qualified as crimes involving moral turpitude. The letter concluded by asserting that Levin would file a claim against respondent for ineffective assistance of counsel in client's case, based on respondent's failure to raise the issue.
Respondent disputes Levin's assertions regarding whether client was deportable and whether those Supreme Court cases applied. Regardless, testimony before the trial panel shows that Levin's firm in fact made that argument. The federal government had then decided to cease pursuing the deportation of client.
Client filed a first Bar complaint against respondent in December 2015. The Client Assistance Office concluded that client's "primary concerns do not raise an ethics issue that this office can investigate." As to the one ethics matter that was presented, the office dismissed.
At roughly the same time that that first Bar complaint was pending, client posted negative reviews of respondent on the internet. Two of those reviews were posted before the Bar dismissed the first Bar complaint; the third was posted approximately three weeks afterwards. The reviews were posted on Yelp, Google, and Avvo.
Respondent posted responses to those reviews, and it is the content of those responses that are at issue here. All of respondent's responses were posted in June 2016. For organizational purposes, we set out each review and response separately.
Client's Yelp review was posted in December 2015 under "Yarik P," a shortened version of his first name and initial, together with his city of residence. The review stated:
(Sic throughout.)
Respondent's response revealed that client had been convicted of both second-degree burglary and theft (italics added to identify statements at issue in this disciplinary action):
(Emphases added.)
Client posted the following review in February 2016, again under "Yarik P.":
Respondent's response is not fully contained in the record. The portion that is available, however, shows that he again revealed client's specific criminal convictions:
On March 25, 2016, client posted the following review on Avvo, using only the name "yarik":
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