In re Gatti

• Court: Supreme Court of Oregon
• Writing for the Court: PER CURIAM.
• Citation: 8 P.3d 966,330 Ore. 517,330 Or. 517
• Decision Date: 17 August 2000
• Parties: In re Complaint as to the CONDUCT OF Daniel J. GATTI, Accused.

8 P.3d 966
330 Or. 517
330 Ore. 517

In re Complaint as to the CONDUCT OF Daniel J. GATTI, Accused

(OSB 95-18; SC S45801)

Supreme Court of Oregon, En Banc.

Argued and Submitted March 3, 2000.

Decided August 17, 2000.

8 P.3d 968

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.

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

8 P.3d 969

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 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

8 P.3d 970

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 CRM 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.¹ 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. ²

8 P.3d 971

"* * * * * "* * * [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...