Rook, In re

• Decision Date: 18 November 1976
• Citation: 556 P.2d 1351,276 Or. 695
• Parties: In re Complaint as to the conduct of Roger ROOK, Accused.
• Court: Oregon Supreme Court

Page 1351

556 P.2d 1351

276 Or. 695

In re Complaint as to the conduct of Roger ROOK, Accused.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 7, 1976.

Decided Nov. 18, 1976.

Duane Vergeer, Portland, argued the cause for petitioner. With him on the brief were Vergeer, Samuels, Roehr & Sweek, and Rudy R. Lachenmeier, Portland.

Don Marmaduke, Portland, argued the cause for the Oregon State Bar. With him on the brief was Steven A. Lowenstein, Portland.

W. Michael Gillette, Solicitor Gen., Salem, filed a brief amicus curiae on behalf of Attorneys for Oregon District Attorneys Association. With him on the brief were Bruce A. Bottini, John C. Bradley David L. Hattrick, Stephen F. Peifer, Michael D. Schrunk and Judy D. Snyder, Multnomah County Deputy Dist. Attys., Portland.

John Henry Hingson, III, Oregon City, filed a brief amicus curiae on behalf of National Association of Criminal Defense lawyers.

Roy Dwyer, Eugene, filed a brief amicus curiae on behalf of Oregon Trial Lawyers Association.

Before DENECKE, C.J., and McALLISTER, O'CONNELL, TONGUE, HOWELL and BRYSON, JJ.

PER CURIAM.

Roger Rook, the District Attorney of Clackamas County, is accused of unethical conduct in refusing to plea bargain with 15 criminal defendants on the same basis as previously offered to another criminal defendant as long as they were represented by either of their two attorneys.

The complaint of the Oregon State Bar charges that this conduct by the accused was improper and unethical in that: (1) Such conduct was 'prejudicial to the administration of justice,' in violation of DR 1--102(A)(5) of the Code of Professional Responsibility of the Oregon State Bar; (2) Such conduct 'serve(d) merely to harass or maliciously injure another,' in violation of DR 7--102(A) (1) of that Code; (3) Such conduct 'deprived defendants in criminal cases of their right to the assistance of counsel of their own choice, as guaranteed to them by the 6th and 14th Amendments to the United States Constitution,' and (4) By such conduct the accused 'encouraged the continuance of criminal actions or proceedings from motives of passion or interest,' in wilful violation of ORS 9.460(7).

These charges were denied by the accused, who also contended: (1) That 'none of the disciplinary rules cited by the Bar were intended to apply to the facts of this case'; (2) That 'the Bar's authority to discipline a prosecutor should be narrowly circumscribed'; (3) That 'the burden of proof is on the Bar to show by clear and convincing evidence that the Accused acted unethically, and proof of mere negligence is not enough'; (4) That 'there exists no right to a Particular counsel'; (5) That 'if the right to a particular counsel exists, it was either not infringed, waived, or justifiably denied under the circumstances'; and (6) That 'all of the Bar's alleged charges are unconstitutionally vague as applied to the facts of this case.'

A Trial Board of the Oregon State Bar, after a three-day hearing, found the accused guilty of all four charges. A majority of the members of that board recommended that the accused be suspended from the practice of law for six months. A third member recommended suspension for two years. After a review of the record by the Disciplinary Review Board of the Oregon State Bar, two of its members 'agree(d) that the accused committed an unethical act, but * * * disagree(d) with the recommended punishment' and recommended that the accused be reprimanded for such conduct. One member of that board, by a separate and dissenting opinion, recommended that the proceeding should be dismissed. The accused has filed a petition in this court to reject the opinion, conclusions and recommendations of that board and to adopt the dissenting opinion.

The facts giving rise to the complaint, as stated in the decision of the Trial Board, are not seriously controverted by counsel, except to complain of some omissions. That statement of facts is as follows:

'This proceeding arises out of three complaints filed in late 1974 and early 1975, by members of the Oregon City Elks' Lodge who had been indicted for gambling violations as a result of a raid by law enforcement officers on the Oregon City Elks' Club in the early morning hours of December 3, 1972.

'The essential facts giving rise to the complaints are not controverted. Mr. Phil H. Ringle, Jr., an attorney who is a member and the internal legal officer of the Elks' Lodge ('Presiding Justice of the Subordinate Forum') was called to the Elks' Club on the night of the raid to give legal advice ot its members and employees. Mr. Ringle then undertook to represent the Lodge. A few days after the raid, Mr. ringle associated with him as co-counsel Mr. Ronald D. Thom, an attorney whose practice is weighted toward criminal defense. Upon Mr. Thom's assocition with Mr. Ringle as co-counsel for the Lodge, he became Mr. Ringle's assistance as the Lodge's internal legal officer.

'Mr. Thom is a member of the Elks' Lodge and was present in the Elks' Club at the time of the raid, although there is no evidence of any participation by Mr. Thom in any illegal gambling. Mr. Thom is a former employee of the Acused, having served as a deputy district attorney from 1965 through 1968. During the last one and one-half years of his tenure, he was the Accused's Chief Criminal Deputy.

'Following the raid, the Lodge agreed to supply legal counsel to individual employees and members of the Elks' Lodge should criminal charges be brought against them. It was communicated to the members and employees that if they desired legal assistance, Messrs. Ringle and Thom were available for this purpose.

'Messrs. Ringle and Thom actively counseled with and represented the Lodge and its members and employees during the balance of 1973 and early 1974, including the grand jury term during which more than one hundred persons were called to testify. In early 1973, criminal indictments for illegal gambling were handed down with respect to the Elks' Lodge and seventeen of its individual members. Initially sixteen of the individuals were represented by Messrs. Ringle and Thom, and one defendant chose other counsel. Fifteen of the defendants were represented by Messrs. Ringle and Thom during all periods of time here involved.

'Legal fees for all seventeen defendants were paid for by the Elks' Lodge, although there is no evidence that Mr. Rook was aware of the fee arrangements as to Messrs. Ringle and Thom.

'As a result of negotiations between Mr. Ringle and the District Attorney's office, it was stipulated that criminal charges against the Lodge would be disposed of first, and charges against the seventeen individual defendants would be held in abeyance. In July, 1973, as a result of negotiations between Mr. Ringle and the District Attorney's office, the case against the Lodge was tried as to three counts and the remaining counts were dismissed.

'The Lodge was convicted on the three charges and the conviction was affirmed on appeal, the appellate process being completed during 1974. During the pendency of the case against the Lodge, there were ongoing but unsuccessful plea negotiations conducted as to the individual defendants.

'The cases against the seventeen individusl defendants were set for separate trials during the fall of 1974. The first case to come on for trial involved a defendant not represented by Mr. Ringle or Mr. Thom and resulted in an acquittal. The second case involved a client represented by Messrs. Ringle and Thom and was set for trial on Tuesday, November 12, 1974. On the Friday, prior to the November 12 trial, Mr. Ringle received a telephone call from Mr. Michael Sturgeon, the attorney representing the only remaining defendant not represented by Messrs. Ringle and Thom. Mr. Sturgeon stated that Mr. Rook had offered to dismiss the pending charges against his client upon a forfeiture of $50 bail. The purpose of the call was to inquire whether the same offer had been made to the other fifteen defendants.

'Messrs. Ringle and Thom then attempted to determine whether this offer was available to their clients. Mr. Ringle was not able to contact Mr. Rook (who was out of the city during the three-day holiday weekend) until early Tuesday morning, the day of the trial, at which time he met with Mr. Rook in the latter's office.

'Mr. Ringle asked Mr. Rook whether the offer made to Mr. Sturgeon's client was available to the defendants represented by him and Mr. Thom. Mr. Rook told Mr. Ringle that the offer was not available to their fifteen clients so long as they were represented by Messrs. Ringle and Thom or by anyone associated with or sharing offices with either of them. Mr. Rook added that if Messrs. Ringle and Thom were to withdraw from the case and obtain other counsel, the offer of bail forfeiture would be available to the defendants through their new attorneys. When Mr. Ringle asked Mr. Rook to explain his position, Mr. Rook stated that Mr. Thom was involved in 'organized crime' and that he was upset with Mr. Ringle for saying 'bad things' about him.

'After this meeting, the pending trial was postponed, and Messrs. Ringle and Thom withdrew as counsel for the fifteen defendants. Mr. Sid Brockley, also a member of the Elks' Lodge, was substituted as counsel for all fifteen defendants after attempting to confirm by telephone that he would be acceptable to the Accused. Within a few days thereafter, the Accused allowed the fifteen defendants previoulsy represented by Messrs. Ringle and Thom to forfeit $50 bail and dismissed the criminal charges against them.

'Three of the defendants wrote to the Oregon State Bar complaining of Mr. Rook's conduct which one characterized as 'blackmail.' In a letter written to the Oregon State Bar in response to the first complaint, Mr. Rook stated that the reason for the refusal to deal with Messrs. Ringle and Thom was 'apparent connection between Mr. Thom and the organized crime aspect in the case.' This...