In re Discipline of Walton

• Decision Date: 11 October 2012
• Docket Number: SC S060606).,(OSB 12–70
• Citation: 352 Or. 548,287 P.3d 1098
• Parties: In re The Reciprocal DISCIPLINE OF Everett WALTON, Accused.
• Court: Oregon Supreme Court

352 Or. 548

287 P.3d 1098

In re The Reciprocal DISCIPLINE OF Everett WALTON, Accused.

(OSB 12–70; SC S060606).

Supreme Court of Oregon, En Banc.

On a BR 3.5 notice of discipline in another jurisdiction and recommendation filed Aug. 6, 2012.

Decided Oct. 11, 2012.

Linn D. Davis, Assistant Disciplinary Counsel, Oregon State Bar, filed the notice of discipline in another jurisdiction and recommendation and reply.

Everett Walton, pro se, Hilo, Hawaii, filed the answer to BR 3.5 notice of discipline in another jurisdiction and recommendation.

PER CURIAM.

This is a reciprocal discipline proceeding pursuant to Oregon State Bar Rule of Procedure (BR) 3.5. The accused is licensed to practice law in Oregon and in the State of Hawai‘i. For approximately 14 months, the accused improperly used a Westlaw account password that belonged to the Republic of Palau, in violation of the Hawai‘i Rules of Professional Conduct (HRPC). The accused entered into a stipulation for discipline with the Hawai‘i Office of Disciplinary Counsel. Based on that stipulation, the Disciplinary Board of the Hawai‘i Supreme Court imposed a public reprimand.

In March 2012, Hawai‘i's Disciplinary Counsel provided the order and stipulation to the Oregon State Bar, which, in turn, invited the accused to respond and provide any additional information that he wished this court to consider in deciding reciprocal discipline. The accused submitted a reply and several exhibits. In August 2012, the Bar notified this court, under BR 3.5(a),¹ that Hawai‘i had disciplined the accused, and it recommended that the accused be suspended from the practice of law in Oregon for six months. For the reasons stated below, we reject the Bar's recommendation and, instead, publicly reprimand the accused.

In a reciprocal discipline proceeding, the order of discipline from another jurisdiction is sufficient evidence that the accused lawyer committed the misconduct described therein. BR 3.5(b) (so stating). Whether this court should impose discipline turns on two questions:

“(1) Was the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard?

“(2) Should the attorney be disciplined by the court?”

BR 3.5(c). In this case, the accused does not dispute that the Hawai‘i disciplinary proceeding provided him with notice and an opportunity to be heard, or that this court should discipline him for his misconduct in Hawai‘i. Rather, he contends only that the appropriate sanction for his misconduct is a private reprimand. This court has rejected the practice of imposing a private reprimand, as distinguished from a public reprimand. See In re Zumwalt, 296 Or. 631, 634 n. 5, 678 P.2d 1207 (1984) (so holding). If the court imposes a reprimand, it is public. Id.;BR 6.1(a)(ii).

This court determines whether it should discipline an accused lawyer and in what manner after reviewing the judgment from the other state and the parties' submissions. BR 3.5(e); ²In re Coggins, 338 Or. 480, 483, 111 P.3d 1119 (2005). We therefore take the following facts from the Hawai‘i stipulation for discipline and the accused's responses to the Bar and this court.

The accused has been practicing law since 1977. In early 2001, the accused was appointed Special Prosecutor for the Republic of Palau Office of the Special Prosecutor (OSP). In March 2007, while still holding that position, the accused entered into a three-year contract on OSP's behalf with Thomson Reuters Corporation for Internet legal research services, known as Westlaw. Under that contract, OSP agreed to pay a flat rate of about $1,170 per month for unlimited access to Westlaw until May 31, 2010. The contract included the following provision:

“In the event Subscriber requests a Minimum Term in excess of one year as set forth in the Order Form, this Agreement may not be terminated prior to the expiration of such minimum term.”

The accused received two passwords that gave him access to OSP's Westlaw account.

In March 2008, the accused resigned from his employment as special prosecutor for OSP. Before leaving that position, and knowing that, under the Republic of Palau's hiring system, the position would remain unfilled for at least nine months, the accused contacted Thomson Reuters in an effort to cancel the Westlaw contract. A Thomson Reuters representative informed the accused that the company would not agree to terminate the contract for any reason before the May 2010 expiration date, whether or not the account was used, because the monthly charges for the three-year contract were substantially discounted from the cost of a one-year contract.

The accused left Palau, returned to Hawai‘i, and began work as the managing attorney for the Hilo office of the Legal Aid Society of Hawai‘i. The accused continued to use OSP's Westlaw password while representing indigent clients in that office. He did not seek authorization from OSP or the Republic of Palau to do so. During that time, OSP continued to receive monthly statements from Thomson Reuters, which detailed the accused's monthly usage of the Westlaw account. OSP forwarded those statements to the Director of the Bureau of National Treasury of the Ministry of Finance of the Republic of Palau, which, in turn, paid them.

In February 2009, the Republic of Palau named a new special prosecutor. In April 2009, the new special prosecutor attempted to cancel the Westlaw contract. Thomson Reuters denied the request to terminate the contract. ³ In May 2009, a secretary in the special prosecutor's office informed the accused by e-mail that the new special prosecutor was considering filing civil and criminal charges, as well as a Bar complaint, against the accused for his unauthorized use of OSP's Westlaw account. The accused immediately stopped using the account.

In July 2009, the new special prosecutor filed a complaint with the Hawai‘i Office of Disciplinary Counsel, alleging that, without any authorization to do so, the accused illegally had accessed and used OSP's Westlaw account for his personal use after he had left the position of special prosecutor. The complaint further alleged that the accused's conduct had caused the Republic of Palau more than $20,000 in economic damages and that the value of the Westlaw services that the accused had used after he left OSP was more than $45,000 (based on per search and not flat rate charges). The complaint also alleged that the accused had refused to pay for or reimburse the Republic of Palau for any part of the Westlaw services that he had used. Finally, the complaint alleged that the accused's conduct violated HRPC 8.4(c) (professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and that that violation, in turn, amounted to a violation of HRPC 8.4(a) (professional misconduct for lawyer to violate or attempt to violate rules of professional conduct).

The accused responded that he did not use the Westlaw account for his personal use, but only to perform legal research in service to the indigent clients of the Legal Aid Society of Hawai‘i; that his use of the Westlaw account did not cost the Republic of Palau any money whatsoever, in light of the fact that the account could not be cancelled and the monthly fee was due and payable whether or not the account was used; that the accused had no intent to deprive the Republic of Palau of anything of value; and that the Republic of Palau implicitly had consented to his use of the Westlaw account by continuing to pay the monthly Westlaw invoices, which detailed the monthly usage on the account at a time when no lawyer was working in OSP as special prosecutor. In addition, the accused pointed out that he had had no disciplinary record at all in more than 35 years as a lawyer and that he had freely admitted his usage of the Westlaw account.

In November 2011, the accused signed a stipulation for discipline with the Hawai‘i Disciplinary Counsel, in which he agreed that, by accessing and using OSP's Westlaw account for 14 months after he had resigned from OSP, and by refusing to pay or reimburse OSP or the Republic of Palau for any part of the Westlaw services that he had used, the accused violated HRPC 8.4(c) and HRPC 8.4(a). The accused stipulated that his substantial experience in the practice of law was an aggravating factor and that his lack of a disciplinary record and his willingness to accept responsibility for his improper use of Westlaw services were mitigating factors. Finally, the accused and the Hawai‘i Disciplinary Counsel agreed that a private reprimand was an appropriate sanction. As noted, the Hawai‘i Supreme Court's Disciplinary Board accepted the stipulation but rejected the parties' recommendation for discipline, determining instead that a public reprimand was the appropriate sanction for the accused's misconduct.

Notwithstanding Hawai‘i's imposition of a public reprimand on the accused for his misconduct, the Bar now urges us to suspend the accused from the practice of law in Oregon for six months. The Bar contends that, in logging into a research service without permission or authority, using passwords provided to his former employer, and using research services paid for by his former employer and without paying the provider for those services, the accused engaged in conduct involving dishonesty that reflected adversely on his fitness to practice law, in violation of Oregon Rule of Professional Conduct (RPC) 8.4(a)(3). That rule provides,

“It is professional misconduct for a lawyer to * * * engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer's fitness to practice law[.]”

In addition, although the Bar acknowledges that the accused did not stipulate that his conduct constituted a crime in Hawai‘i, the Bar contends that the stipulated facts detailing the accused's unauthorized use of OSP's Westlaw account are sufficient to establish...