In re Nisley

793

Argued and submitted May 6; respondent is suspended from the practice of

law for 60 days, commencing 60 days from the date of filing of this decision

December 12, 2019

In re Complaint as to the Conduct of

ERIC J. NISLEY,

OSB No. 951049,

Respondent.

(OSB 16-167) (SC S066100)

453 P3d 529

The Oregon State Bar alleged that respondent, a District Attorney, know-

ingly made six false and material statements to the Bar during an investiga-

tion into possible misconduct that had involved the investigation of certain pay-

ments made by another county official using county funds. A trial panel of the

Disciplinary Board determined that respondent had made one such false state-

ment, in violation of BR 8.1(a)(1), and suspended him for 30 days. Held: (1) The

Bar proved by clear and convincing evidence that respondent had knowingly

made four false, material statements, amounting to a single violation of BR 8.1

(a)(1); and (2) the appropriate sanction is a 60-day suspension.

Respondent is suspended from the practice of law for 60 days, commencing 60

days from the date of filing of this decision.

En Banc

On review of the decision of a trial panel of the Disci-

plinary Board.*

Lawrence Matasar, Lawrence Matasar, PC, Portland,

argued the cause and filed the briefs for respondent.

Susan R. Cournoyer, Assistant Disciplinary Counsel,

Tigard, argued the cause and filed the brief for the Oregon

State Bar.

PER CURIAM

Respondent is suspended from the practice of law for 60

days, commencing 60 days from the date of filing of this

decision.

______________

* Trial Panel Opinion dated June 11, 2018.

794 In re Nisley

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon

State Bar alleged that respondent knowingly made six false

and material statements to the Bar during an investigation

into possible misconduct, in violation of Rule of Professional

Conduct (RPC) 8.1(a)(1). A trial panel determined that

respondent had made one such false statement, and it

imposed a one-month suspension. Respondent requested

review and seeks dismissal; the Bar counters that it proved

all its allegations and requests a six-month suspension. On

de novo review, we conclude that respondent made four false

statements, and we suspend him from the practice of law for

60 days.

I. FACTS AND PROCEDURAL BACKGROUND

Respondent is the District Attorney (DA) for Wasco

County, having served since 1999. In 2014, he initiated an

investigation involving potentially unlawful conduct by

one or more county officials, including the county’s then-

finance manager, Morris. Respondent later was accused by

the county’s counsel of violating a conflict-of-interest rule

in connection with that investigation. In responding to an

ensuing Bar inquiry, respondent made six statements that

the Bar later alleged had been false. Although the Bar’s false

statement allegations—not the earlier-reported conflict-of-

interest accusation—are at issue here, a description of the

underlying events that led to the statements is necessary to

put them in context. We take the facts set out below from

the record.

A. Underlying Events

The first underlying event occurred in 2011 and

had involved inappropriate conduct by respondent toward

Morris. At that time, respondent was serving as both Wasco

County Counsel and DA. While he and Morris were attending

a conference, they had gathered with others in the evening

in a hotel lounge. Respondent—who was very intoxicated—

directly propositioned Morris, and she refused. Respondent

passed out shortly thereafter. He was embarrassed about the

incident and apologized to Morris not long afterwards, and

she accepted his apology. Morris told her supervisor, Stone,

Cite as 365 Or 793 (2019) 795

who was the county’s Administrative Officer, about the inci-

dent, but she declined the opportunity to pursue any action.

The record otherwise does not reflect any further activity in

connection with that incident, although Morris stated in an

affidavit that, since then, respondent had engaged in other

nonsexual, “but intimidating,” behavior toward her, without

elaboration. Respondent and Morris both continued to work

for the county, in the same building.

The second underlying event involved an inves-

tigation that respondent initiated three years later, in his

capacity as DA, again involving Morris.1 In 2014, a local

official asked respondent to check into a disbursement

of county funds that Morris had made—specifically, two

cash payments totaling $360 made to an intern, Davila,

which Morris had treated as permissible advance salary

draws. Unbeknownst to the inquiring official, or to respon-

dent until much later, the payments apparently had been

expressly authorized at the time by Stone. And, as will

be seen, a key aspect of the parties’ dispute involves the

extent to which respondent focused on Morris during the

investigation.

When initially told about the cash payments,

respondent commented to the inquiring official that Morris

would not have made them without Stone’s authorization.

He nonetheless thought that the payments were problem-

atic, and, because the conduct involved another county offi-

cial, he asked the Oregon State Police (OSP) to investigate.

In doing so, he stated that an apparent unlawful loan of

county funds—possibly amounting to official misconduct—

had been made by Morris to Davila, with no mention of

Stone. Shortly thereafter, in an effort to preserve evidence,

respondent secured a subpoena duces tecum that granted

him access to a large number of emails between Stone and

others, including Morris and Davila.

OSP referred respondent to the Oregon Department

of Justice (DOJ), and respondent then submitted a similar

investigation request to DOJ. DOJ’s memorializing intake

form and case note stated that respondent had requested

1

Respondent also continued as the Wasco County Counsel until late 2014.

796 In re Nisley

“the investigation * * * of * * * Morris”;2 mentioned no other

county official; and noted a possible statutory violation. DOJ

opened a case in December and assigned an investigator,

Culley, and an Assistant Attorney General, Benson. Based

generally on the nature of respondent’s initial request,

DOJ’s intake form identified Morris as the “subject.”

Culley began contacting witnesses, and Stone sent

him documentation, spoke with him by phone, and was

interviewed by him and Benson. Stone’s documentation

showed that Morris recently had explained the cash pay-

ments to him as permissible salary draws under the county

employees’ union bargaining agreement. Stone also told

Culley that cash advances were a local practice and that

he was not concerned about the allegations. And, Stone told

Culley and Benson about the 2011 incident between respon-

dent and Morris, and he commented that respondent’s cur-

rent actions were “axe grinding” against her. Culley and

Benson also interviewed Morris, who similarly relied on the

bargaining agreement to support the payments. By the end

of their witness interviews, Culley and Benson tentatively

concluded that the bargaining agreement had permitted the

payments and that no improper conduct had occurred. DOJ

did not generate a report for a few months, however.

In the meantime, respondent had become increas-

ingly frustrated at the progress and quality of the DOJ

investigation, and, beginning in January 2015, he began con-

tacting DOJ with some frequency. In many of those commu-

nications, he asked about the status of the “Morris” case—

which, as noted, is what DOJ had named its case file based

on his initial inquiry. In one email, he wrote that Morris

was “in charge of all the County’s finances and appears to

have committed a crime”; in others, he wrote that this was

a “very serious matter[, involving] not simply an employee

draw [but] an illegal loan of taxpayer’s funds,” and that he

was “very concerned” about Morris’s conduct and the fact

that she continued to work as finance manager with limited

oversight. In one of those emails, he also wrote that Morris

2

The intake form and case note also said that respondent had requested the

“prosecution” of Morris, but he denies having requested any “prosecution,” and no

clear and convincing evidence counters that denial.

Cite as 365 Or 793 (2019) 797

appeared to be concealing information from elected offi-

cials; in another, he forwarded information about an earlier

cash payment that she apparently had made to a different

employee; in yet another, he noted a finding of “discrepancies

in the county’s cash fund.” He also suggested additional per-

sons to interview and stated that, if DOJ declined to inves-

tigate, he would do so. After one phone call with respondent,

Benson noted that he “wants us to prosecute” Morris. From

DOJ’s perspective, respondent was exclusively focused on

Morris as a wrongdoer.

In February, Benson told respondent that DOJ had

determined that it did not appear that DOJ would be able to

press criminal charges, citing the bargaining agreement and

DOJ’s interview information. Respondent disagreed, and he

also thought the agreement had not covered an intern, such

as Davila. He therefore wrote to Benson’s supervisor, Tuttle,

in early March, stating that he would complete the investi-

gation locally and requesting that DOJ send its documenta-

tion to him.

Later in March, Culley issued a report that con-

cluded that nothing supported the allegation that Morris had

committed a crime by disbursing funds under the bargain-

ing agreement.3 That report identified Morris as a “subject”

and Stone as a “witness.” Also, Benson wrote a declination

of prosecution letter to respondent, explaining that the cash

payments had been “legal” under the bargaining agreement

and generally mentioning Stone’s apparent approval. At this

juncture—given the nature of all respondent’s communica-

tions with DOJ—Culley, Benson, and Tuttle all understood

respondent’s sole focus in the investigation to have been on

Morris, not on Stone or anyone else, and they also thought

that respondent wanted them to prosecute Morris.

DOJ then turned its materials over to respondent.

When respondent reviewed Culley’s report, he concluded that

Culley had been biased toward Morris, and he sent Benson

an email to that effect. He also decided to interview Davila,

which DOJ had not done. That ensuing interview uncovered

3

The report further stated that “[a]ny suggestion that funding the payroll

draws in cash is a crime was not supported by this investigation.”

798 In re Nisley

information that was both new and significant to respon-

dent: Davila told him that Stone expressly had approved

the cash payments contemporaneously with Morris making

them. Respondent thought that that information actually

exonerated Morris because she had acted with Stone’s per-

mission; he also thought that it implicated Stone.

Meanwhile, Morris had found it difficult to work

in the same building as respondent. She discussed her dis-

comfort with lawyers representing the county, who in turn

learned about the earlier 2011 incident between Morris

and respondent. Concerned that Morris might take action

against the county, the Wasco County Counsel, Timmons,

asked DOJ for its investigatory materials. Tuttle asked

respondent for permission to release them, but he initially

declined, citing his ongoing investigation. That communica-

tion appears to have occurred before he interviewed Davila.

In May, Timmons sent a second materials request

to DOJ, and Tuttle again asked respondent whether Morris

was still under investigation. Respondent answered that he

had not yet completed his work, but also that “Morris is actu-

ally not the suspect in this matter.” He elaborated that, fol-

lowing his interview with Davila, Morris had been absolved

of wrongdoing. Tuttle responded that she was surprised to

hear him deny that Morris was the “suspect” because, in his

communications with DOJ, he had focused solely on Morris.

Respondent decided to seek outside review as to

whether he should pursue criminal charges arising from the

cash payments. In June, he prepared summary materials—

which focused on Stone’s role in authorizing the payments

and his own assessment that the bargaining agreement had

not applied—and sent them to another DA for review. That

DA agreed with respondent that the payments had not been

proper and that the bargaining agreement had not covered

Davila. He further recommended, however, against prose-

cuting Morris or Stone. Respondent thereafter closed his file.

B. Bar’s Investigation and Alleged False Statements

Meanwhile, in May 2015, Timmons had complained

to the Bar’s Client Assistance Office (CAO). Among other,

unrelated allegations, he asserted that respondent had

Cite as 365 Or 793 (2019) 799

initiated a “retaliatory” investigation against Morris, which

had involved a “personal interest” conflict of interest under

RPC 1.7(a)(2), in light of the 2011 incident.4 The CAO assessed

that Timmons’s allegations might have implicated RPC

1.7(a)(2) and also RPC 3.1 (prohibiting frivolous proceedings

or actions), and it asked respondent to respond, focusing on

those rules and his “alleged retaliatory investigation.”

Over the next 10 months, the CAO and, later, the

Bar’s Disciplinary Counsel Office (DCO), engaged in fur-

ther written communications with respondent. Respondent

wrote four letters to the Bar, two through counsel (both to

the CAO), and two while representing himself (both to the

DCO). The Bar alleges that, in his first three letters written

over a four-month period, respondent knowingly made six

false statements that were material to the Bar’s investiga-

tion. We provide greater detail about those six statements

later in this opinion; they can be summarized as follows:

(1) Morris had not been the “target” of any investigation, and

respondent never had seen her as the “target” (three state-

ments); (2) Morris never had been the “subject” of the inves-

tigation (one statement); and (3) respondent had requested

a “general investigation” about the cash payments, and his

concern had been completing that investigation to deter-

mine who had authorized them (two statements).

C. Complaint and Trial Panel Proceeding

The Bar filed a formal complaint that briefly

described the 2011 incident; respondent’s investigation of

the cash payments, including the nature of his representa-

tions to others (particularly DOJ staff) about Morris; and

the nature of Timmons’s complaint accusing respondent of

initiating and pursuing a retaliatory investigation against

Morris that had posed a conflict of interest. The Bar alleged

that, in response to its inquiries, respondent had denied

that he had had any personal-interest conflict related to

the investigation “because, he claimed, he had not targeted

4

Timmons specifically wrote that, since the 2011 incident, Morris perceived

that respondent had engaged in intimidating behavior toward her, in retaliation

for her rebuffing his proposition and reporting the incident to her supervisor. As

discussed later, the trial panel determined that the Bar had not proved that any

“retaliatory” investigation had occurred.

800 In re Nisley

Morris in his investigation” and, in support of that theory,

had made the six alleged false statements. The Bar further

alleged that each statement had been both false and mate-

rial to its inquiry, and had been knowingly made, in viola-

tion of RPC 8.1(a)(1).5

The matter proceeded to a hearing before a trial

panel of the Disciplinary Board. Respondent was repre-

sented by counsel;6 neither Morris nor Stone testified.

In assessing the evidence, the trial panel evaluated

respondent’s alleged false statements in the three categories

identified above: his denials that Morris had been a “target”;

his denial that she had been a “subject”; and his assertions

about the nature of his investigation. The panel also framed

the inquiry in the context of Timmons’s initial complaint

to the Bar—that is, Timmons had accused respondent of

initiating a “retaliatory” investigation against Morris, and

respondent thus had responded within that framing, deny-

ing that he had acted with any retaliatory motive.

The trial panel addressed the retaliation issue first

and found that respondent had not retaliated against Morris;

instead, his investigation had been legitimate and nonretal-

iatory. Turning to the three “target” statements, the panel

determined that those statements should be understood to

mean that respondent had not “targeted” Morris—that is,

he had not viewed her as a “target in retaliation” when he

initiated and pursued the investigation. It followed, in the

panel’s view, that the Bar did not prove that those three

statements had been false when made.

The trial panel also determined that the Bar had

not proved that respondent’s statements about the nature

of the investigation had been false. In support, the panel

cited respondent’s legitimate interest, as the county’s DA,

in investigating a seemingly improper loan involving county

funds and evidence in the record showing how his approach

to the investigation had been consistent with his statements.

5

The Bar did not allege any violation of the rules pertaining to conflicts of

interest or frivolous proceedings.

6

Respondent’s lawyer at the hearing was not the same lawyer who had sub-

mitted his first two response letters.

Cite as 365 Or 793 (2019) 801

The trial panel did determine, however, that respon-

dent knowingly had made a false, material statement when

he told the Bar that Morris never had been the “subject”

of the investigation. In the panel’s view, because the inves-

tigation had focused on Morris, she necessarily had been

its “subject.” For that violation of RPC 8.1(a)(1), the panel

imposed a one-month suspension. As noted, both parties

seek de novo review. See BR 10.6 (setting that standard).

II. ANALYSIS OF MISCONDUCT ALLEGATIONS

A. RPC 8.1(a)(1) and Parties’ Arguments

RPC 8.1(a)(1) provides that a lawyer, “in connection

with a disciplinary matter,” shall not “knowingly make a

false statement of material fact.” The Bar must prove its

allegations by clear and convincing evidence, BR 5.2, mean-

ing that the truth of facts asserted is “highly probable,” In re

Cohen, 316 Or 657, 659, 853 P2d 286 (1993).

The parties’ key dispute involves what respondent

meant when he denied that Morris had been a “target” or

“subject” of the investigation, and otherwise stated that he

had intended to initiate and complete a general investiga-

tion into the propriety of, and responsibility for, the cash

payments. Respondent contends that the Bar has failed to

provide consistent and satisfactory definitions of “target”

and “subject,” and that it has used those terms—as well as

“potential target,” “potential subject,” “suspect,” and “poten-

tial suspect”—interchangeably throughout the proceedings.

It follows, he argues, that the Bar has failed to prove that

his statements were unambiguous or, more importantly,

false. The Bar, by contrast, is not as concerned with specific

definitions of the identified words; instead, it argues that

respondent’s focus all along had been Morris and that his

statements all sought to create a materially false narrative

in responding to the Bar’s inquiries about possible miscon-

duct involving a conflict of interest.

B. Analytical Framework

We begin by clarifying the nature of our inquiry

under RPC 8.1(a)(1). That rule was adopted in 2005 as part

of the then-new Oregon Rules of Professional Conduct. The

802 In re Nisley

former Oregon Code of Professional Responsibility had no

companion rule for false statements made in connection

with a disciplinary matter; instead, such statements were

addressed under the general “misrepresentation” rule or other

similar rules. See former DR 1-102(A)(3), now RPC 8.4(a)(3)

(professional misconduct to engage in conduct involving

misrepresentation that reflects adversely on the lawyer’s fit-

ness to practice law); Oregon Rules of Professional Conduct,

Rule 8.1, Comparison to Oregon Code at 32 (2019) (new RPC

8.1(a)(1) replaced former DR 1-101, which prohibited false

statements during the admission process, “but is broader”

because the new rule also applies to any “disciplinary mat-

ter”);7 see also, e.g., In re Worth, 336 Or 256, 271-73, 82 P3d

605 (2003) (evaluating false statement to Bar during inves-

tigation under former DR 1-102(A)(3)); In re Huffman, 331 Or

209, 13 P3d 994 (2000) (evaluating false statements to Bar’s

investigator under former DR 1-103(C) (lawyer must respond

“fully and truthfully” to Bar’s inquiries)).

This court has not yet specifically analyzed a mis-

conduct allegation under RPC 8.1(a)(1).8 However, the parties

appear to agree—as do we—that we should apply the same

analysis that we would apply to a false statement allegation

under the “misrepresentation” rule, RPC 8.4(a)(3).9 See gen-

erally In re Merkel, 341 Or 142, 151-52, 138 P3d 847 (2006)

(alleged false statement to Bar during investigation ana-

lyzed under former DR 1-102(A)(3), along with alleged mis-

representation made to opposing counsel). When evaluating

an affirmative misrepresentation allegation, this court must

answer the following questions: (1) whether the statement

at issue was false when it was made; (2) if so, whether the

lawyer knew that it was false at that time; (3) if so, whether

7

See https://www.osbar.org/_docs/rulesregs/orpc.pdf (accessed Dec 5, 2019).

8

We have summarily decided two cases in which the Bar alleged violations of

RPC 8.1(a)(1) (among other rules), but neither case required any specific analysis.

See In re Kirchoff, 361 Or 712, 721, 399 P3d 453 (2017) (court summarily agreed

with trial panel that all allegations had been proved); In re Roller, 361 Or 234,

390 P3d 1045 (2017) (lawyer did not file opening brief on review).

9

RPC 8.4(a)(3) provides that “[i]t 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[.]” We note that

the final element of that rule—that the conduct reflects adversely on fitness to

practice—does not apply to a violation alleged under RPC 8.1(a)(1).

Cite as 365 Or 793 (2019) 803

the statement was material and whether the lawyer knew

that, as well. See In re Fitzhenry, 343 Or 86, 104, 162 P3d

260 (2007) (applying that analysis under former DR 1-102

(A)(3)); In re Brandt/Griffin, 331 Or 113, 139-41, 10 P3d 906

(2000) (same, in case applying former DR 1-102(A)(3) to false

statement made during Bar investigation); In re Gustafson,

327 Or 636, 648-49, 968 P2d 367 (1998) (explaining knowl-

edge and materiality inquiries). A statement is material if

it would or could have influenced the decision-making pro-

cess significantly—specifically in the context of RPC 8.1

(a)(1), whether it would or could have influenced the Bar in

its decision-making about a disciplinary matter. See gener-

ally In re Eadie, 333 Or 42, 53, 36 P3d 468 (2001) (stating

general standard); see also Worth, 336 Or at 273 (misrepre-

sentation to Bar could have affected evaluation of miscon-

duct allegations); Brandt/Griffin, 331 Or at 141 (misstate-

ments were material to Bar’s inquiry because they affected

the assessment whether to formally investigate).

This case primarily concerns the first question set

out above: whether the six statements that respondent made

to the Bar were false when he made them. It also presents

a question about the potentially ambiguous nature of words

that respondent used, specifically, “target” and “subject.” As

discussed next, our case law provides a framework for ana-

lyzing allegedly false, but ambiguous statements.

The key case is Merkel, 341 Or 142. There, a law-

yer had written to opposing counsel that an arbitrator had

“cleared” having certain witnesses testify by telephone. In

fact, the arbitrator had told the lawyer that telephone tes-

timony was permissible, so long as opposing counsel did

not object. Id. at 145. The Bar alleged a violation under

the misrepresentation rule, former DR 1-102(A)(3), arguing

that the lawyer had knowingly created the false impression

that “the issue was a ‘fait accompli.’ ” Id. at 149. This court

explained that the word “cleared,” as the lawyer had used

it, was ambiguous because it could have been understood in

more than one way: either the arbitrator had authorized the

telephone testimony (as the Bar had argued), or the arbi-

trator had been amenable to telephone testimony, but had

not expressly authorized it (as the lawyer had argued). The

court then explained that the lawyer’s statement must be

804 In re Nisley

viewed in the context in which it had been made and that, in

examining the evidence, the court may consider the relative

strength of the competing inferences that the ambiguous

word (“cleared”) could have created. Id.; see also In re Phelps,

306 Or 508, 513, 760 P2d 1331 (1988) (Bar may satisfy its

burden in proving misconduct if the court draws necessary

supporting inferences from the evidence). Further, in deter-

mining which of two competing inferences the lawyer likely

had intended to convey, the court may examine all the cir-

cumstances surrounding the statement. Merkel, 341 Or at

150. Ultimately, a majority of the court concluded that the

record did not support the inference on which the Bar had

relied—that the lawyer knowingly had conveyed to oppos-

ing counsel that the arbitrator had authorized the telephone

testimony. Id. at 150-51.10

Applying that framework here, we first identify the

competing inferences that could be drawn from respondent’s

alleged false statements, namely his statements denying

that Morris had been a “target” or a “subject” of the inves-

tigation. Respondent asserts that he used those words in a

narrow way—primarily, with “target” meaning that he had

not been retaliating against Morris (i.e., he had not “tar-

geted” her), and “subject” meaning a person likely to have

committed criminal conduct after the assessment of facts

gathered during an investigation (i.e., not a person merely

involved in the underlying facts of a potential crime). It fol-

lows, he continues, that his statements were true, because

the record shows that (1) he had not initiated any retaliatory

investigation against Morris; and; (2) once all the investiga-

tory facts had been gathered and assessed, it had become

clear that she had engaged in no wrongdoing. Respondent

also argues that, although Morris’s conduct was a subject

of investigation, she herself was not its focus, and so all his

10

Respondent reads Merkel for the proposition that the Bar cannot establish

misconduct based on ambiguous statements; the Bar similarly cites Merkel as

holding that misrepresentation cannot be established when an ambiguous state-

ment is subject to two equally credible interpretations. Those characterizations

are not quite on the mark. More precisely, under Merkel, we must evaluate an

ambiguous statement by identifying the competing inferred meanings and then

determining whether the Bar has proved by clear and convincing evidence that

the lawyer intended the Bar’s proffered meaning, based on the surrounding con-

text and other evidence in the record. 341 Or at 149-51.

Cite as 365 Or 793 (2019) 805

statements—including those about the general nature of the

investigation—were true.

The Bar disagrees that respondent’s statements

had sought to counter the notion of any “retaliatory” inves-

tigation or otherwise utilize narrow definitions of “target”

or “subject.” Instead, the Bar asserts, respondent intended

more colloquial, and interchangeable, meanings of those

words, intending to convey (falsely) that Morris had not been

the focus of the investigation at all. His underlying goal, the

Bar continues, was to deflect the Bar’s attention away from

his focus on Morris, which in turn would have undercut any

theory that he might have had a personal-interest conflict.

To determine the intended meaning of respondent’s

statements, we must assess the strengths of the competing

inferences just summarized, by examining each statement,

the context in which each statement was made, and other

relevant evidence in the record. Merkel, 341 Or at 149-51;

see also In re Lawrence, 337 Or 450, 469, 98 P3d 366 (2004)

(rejecting lawyer’s proposed meaning of her statement as

implausible, based on evidence in the record). We then must

determine whether the Bar proved—by clear and convinc-

ing evidence—whether each statement was knowingly false

and material when respondent made it. As explained below,

we conclude that the Bar proved its allegations as to four of

the statements.

C. Evaluation of Alleged False Statements

1. Initial accusation and inquiry, and respondent’s first

letter

We begin by reiterating the nature of Timmons’s

initial complaint to the Bar. He recounted details of the 2011

incident and alleged that, since then, respondent had engaged

in what Morris had characterized as “intimidating behavior

toward her in retaliation for her refusal [of his proposition

of her] and her reporting of the incident to [her supervisor,

Stone].”11 He then wrote that, in Morris’s view, the investi-

gation of the cash payments had been “retaliatory.” Finally,

11

As noted, Morris did not testify at the hearing, and the record does not

clearly and convincingly show that respondent had engaged in any specific

“intimidating behavior” toward her, in the manner described in Timmons’s letter.

806 In re Nisley

he surmised that the described conduct had amounted to a

personal-interest conflict under RPC 1.7(a)(2), defined as the

existence of a “significant risk” that the representation of a

client (here, the county) would be “materially limited by * * *

a personal interest of the lawyer[.]”

In its own initial letter to respondent, the CAO

asked him to address the “alleged retaliatory investigation”

against Morris as well as RPC 1.7(a)(2) and also RPC 3.1

(prohibiting frivolous proceedings or actions). That is, the

CAO’s first communication with respondent framed the key

inquiry as whether respondent had engaged in a “retalia-

tory investigation” that had violated conflict-of-interest or

meritless-claim rules.

Consistently with that framing, respondent’s first

letter included a section entitled, “[Respondent] Did Not

Open a Retaliatory Investigation Against Ms. Morris.”

There, he wrote that he had opened an investigation into

the potential misuse of public funds and learned through

that investigation that Stone had approved the cash pay-

ments. He then described the DOJ referral and recounted

that DOJ had interviewed Stone, concluded that the bar-

gaining agreement had permitted the payments, and closed

its investigation. He next explained his continued investiga-

tion, including confirming that the bargaining agreement

had not covered Davila. He wrote that “[t]he focus of the

investigation was the misuse of public funds generally and

[ ] Stone in particular[,]” and that he never had sought an

interview of Morris. In concluding that section’s factual

summary, he made the first alleged false statement:

“[Respondent] never saw Ms. Morris as a target of the inves-

tigation and, in fact, believes Ms. Morris is not responsible

for any impropriety regarding the [cash payments] because

Mr. Stone (and not Ms. Morris) authorized them.”

In a later section analyzing the conflict-of-interest rule,

respondent reiterated that Timmons had accused him

of “retaliation”; he then made the second alleged false

statement:

“The simple answer to Mr. Timmons’[s] contention is

that Ms. Morris was never the subject of [respondent’s]

investigation.”

Cite as 365 Or 793 (2019) 807

He followed that sentence with specific examples about the

investigation’s “scope,” purporting to showing how Morris

had not been the subject—including the earlier subpoena

duces tecum that had focused on Stone and the fact that he

never had interviewed Morris.

We understand much of respondent’s first letter to

argue that the investigation, in fact, had not been retalia-

tory—which was understandable, given that Timmons had

asserted as much and the CAO had framed its initial inquiry

in that manner. Respondent’s proffered meaning of his first

statement—that he never had seen Morris as a “target” in

retaliation—logically fits within that framing. As noted,

his first statement appeared at the end of the factual sum-

mary of a section of his letter entitled, “[Respondent] Did

Not Open a Retaliatory Investigation Against Ms. Morris[,]”

i.e., asserting that he in fact had not initiated and pursued a

retaliatory investigation. In that context, respondent plausi-

bly used the word “target” to mean that he had neither “tar-

geted” nor sought to retaliate against Morris. We acknowl-

edge, as the Bar points out, that other aspects of respondent’s

first letter arguably support the Bar’s argument that “tar-

get” actually meant “focus.”12 But we do not think that that

contrary inference—when viewed in the context of the first

statement—is supported by clear and convincing evidence.13

12

The Bar emphasizes that respondent made his first statement as part of

recounting the investigation in a manner that deflected any focus on Morris. By

contrast, in a different part of his letter, he specifically countered Timmons’s

“retaliation” accusation, pointing out factors tending to show why the 2011 inci-

dent had not been retaliatory.

13

The trial panel similarly concluded that “target” should be understood to

mean “target in retaliation”—that is, to deny that respondent in fact had retal-

iated against Morris. It went on to determine that none of respondent’s “target”

statements had been false because respondent, in fact, had not initiated and pur-

sued a retaliatory investigation against Morris. We need not take that second

analytical step, in light of the Bar’s arguments on review. Specifically, the Bar

focuses on its proffered meaning of respondent’s first statement (which we have

rejected) and otherwise emphasizes that it need not prove whether respondent

initiated a retaliatory investigation because it never charged him with miscon-

duct of that nature.

We also depart from the trial panel’s approach of treating all three of respon-

dent’s “target” statements collectively (and all meaning “target in retaliation”).

Although we have determined that the Bar failed to prove that respondent’s first

“target” statement did not mean “target in retaliation,” we assess his subsequent

“target” statements differently.

808 In re Nisley

We reach a different conclusion as to respondent’s

second statement—that the “simple answer” to Timmons’s

“retaliation” contention was that Morris “was never the

subject” of respondent’s investigation. Notably, respondent

offered that statement to make a different point from his

first statement: rather than trying to show that the inves-

tigation in fact had not been retaliatory against Morris,

his second statement was offered to show the investigation

could not have been retaliatory because Morris never had

been its subject. As noted earlier, he proffers the inference

that he had used “subject” in the narrow sense—meaning a

person whom an investigation reveals has likely committed

a crime. As to Morris, he asserts that her conduct in making

the cash payments had been the focus of the investigation,

but she herself never had become its “subject” because the

investigation ultimately exonerated her, and his denial in

that regard therefore had been true. The Bar counters with

a different inference: In denying that Morris ever had been

the “subject,” respondent meant to convey that his investiga-

tion never had focused on Morris at all (such that no conflict

of interest could have existed).

The context surrounding respondent’s second state-

ment supports the Bar’s proffered inference, not respondent’s.

As noted, immediately after making that statement, respon-

dent pointed to the “scope” of his investigation, describing a

subpoena focused on Stone and no interview of Morris. That

supporting explanation shows that, rather than seeking to

clarify that he simply had not uncovered sufficient evidence to

establish that Morris likely had committed a crime, respon-

dent was trying to deflect the Bar’s attention away from his

focus on Morris as the potential wrongdoer. Relatedly, ear-

lier, his letter had created the false impression that he had

learned shortly after initiating the investigation that Stone

had approved the cash payments—thereby suggesting that

Stone, not Morris, had been identified as responsible from

early on. In fact, he did not learn about Stone’s express, con-

temporaneous approval until after the DOJ investigation

had ended. In sum, the context surrounding respondent’s

second statement supports the inference that, in denying

that Morris had been the “subject” of the investigation, he

had intended to convey that she had not been its focus (and,

Cite as 365 Or 793 (2019) 809

therefore, that the investigation could not have been retalia-

tory, thus implicating the conflict-of-interest rule).

The record also shows that respondent’s second

statement was false, and knowingly so, when made:

During the investigation—and certainly throughout DOJ’s

involvement—respondent had presented Morris, and no one

else, as the focus and potential wrongdoer. As described, he

initially mentioned only Morris (specifically, her conduct) to

DOJ, even though he earlier had commented that she would

not have made the cash payments without Stone’s approval.

Then, in multiple communications with DOJ, he inquired

about the status of the case in a way that focused on Morris

and, more importantly, suggested a sense of urgency about

her personally: that she may have engaged in financial mal-

feasance; that she was still handling county funds; that she

had made a similar cash payment in the past; and that she

appeared to be concealing information from officials. That is,

in addition to Morris’s conduct being a focus of the investiga-

tion, Morris herself was the exclusive focus of respondent’s

communications with DOJ, respecting both its investigation

and potential identification of a wrongdoer. Respondent’s

sole focus on Morris continued right up to the point when he

learned from Davila that Stone expressly and contempora-

neously had authorized the payments.

We additionally conclude that respondent’s sec-

ond statement was material to the Bar’s inquiry: If he had

been forthcoming about his continuing focus on Morris,

that would have affected the Bar’s assessment whether the

investigation had been retaliatory and, relatedly, whether

he had a conflict of interest. And, we agree with the Bar that

respondent knew that the issue was significant to the Bar’s

inquiry. See generally Lawrence, 337 Or at 470 (from sur-

rounding facts, lawyer had to have known that her misrep-

resentation by omission had been essential to Bar’s assess-

ment whether she had engaged in misconduct); Worth, 336

Or at 273 (to similar effect).14

14

That is not to say that, had respondent been forthright about his continued

focus on Morris, the Bar necessarily would have determined that the investiga-

tion had been retaliatory. However, accurate information would have allowed

the Bar to assess more readily the nature of respondent’s focus on Morris and,

given that, whether it bore any connection to the 2011 incident, as Timmons had

alleged.

810 In re Nisley

2. Respondent’s second letter

After the CAO received respondent’s first letter, it

also received additional communications from Timmons,

again suggesting that Morris had been a “subject” of the

investigation and that a conflict of interest had existed. The

CAO asked respondent to address those concerns, and he

sent a second letter, through counsel. At the beginning of

a section under the heading, “Ms. Morris was not the ‘sub-

ject’ of a criminal investigation,” respondent made the third

statement that the Bar alleges was false:

“As we explained in our [first letter], [respondent] did not

consider Ms. Morris the target of any investigation.”

We observe initially that the context for respon-

dent’s second letter was different from his first: While

much of his first letter had attempted to counter Timmons’s

accusation that his investigation of Morris in fact had been

retaliatory, his second letter responded to the Bar’s spe-

cific question whether Morris had been “a subject” of his

investigation—because, if so, his investigation could have

been retaliatory and thus could have implicated the conflict-

of-interest rule. In responding to that specific question,

after stating initially that he had not considered Morris a

“target,” respondent made factual assertions to the follow-

ing effect: (1) Morris’s conduct—specifically, the propriety of

the cash payments—but not Morris herself, had been the

subject of his investigation; (2) respondent had thought from

the outset that she would not have made the payments with-

out Stone’s approval and never suspected her of wrongdoing;

(3) Stone’s acknowledgment of the payments to DOJ showed

that Morris had not engaged in unlawful activity; and

(4) respondent’s focus following the DOJ investigation had

been on the applicability of the bargaining agreement, the

propriety of the payments generally, and Stone’s approval of

them. Respondent then denied having taken any steps “to

focus the investigation on [ ] Morris” and wrote that, although

the investigation prudently had assessed her involvement,

“that [did] not mean she was a target—let alone a target for

allegedly retaliatory purposes based on something that had

happened years before.”

Cite as 365 Or 793 (2019) 811

When respondent’s second letter is read in its

entirety, it is apparent that he intended to convey to the

Bar in his third statement that Morris herself had not

been the focus of the investigation. Most notably, he again

asserted an early belief that Morris would not have acted

without Stone’s approval, and he again presented a time-

line suggesting that he had concluded relatively early on

that Morris had not acted unlawfully, when, in fact, he did

not draw that conclusion until after DOJ had closed its

investigation. We also think his concluding statement to be

significant—that the fact that the investigation had

assessed Morris’s involvement “[did] not mean she was a

target—let alone a target for allegedly retaliatory pur-

poses * * *.” That statement shows that respondent himself

understood that the word “target” could carry two different

meanings—both a focus of the investigation and a target in

retaliation. That context supports the Bar’s proffered infer-

ence of what respondent meant in his alleged third false

statement: He intended to convey that Morris had not been

the focus of his investigation, rather than simply conveying

that she had not been a target in retaliation. As explained

earlier, the record established that that statement had been

false, and, also for reasons discussed earlier, the record

further establishes that it had been material to the Bar’s

inquiry and knowingly made.

3. Respondent’s third letter

After receiving respondent’s second letter, the CAO

referred the matter to the DCO, which sought additional

information from DOJ. Tuttle provided documentation of six

communications between DOJ and respondent, the thrust

of which was that—contrary to some of the narrative in his

earlier letters—respondent in fact had continually high-

lighted Morris, and no one else, to DOJ as the focus of the

investigation and likely wrongdoer. The CAO sent that docu-

mentation to respondent’s counsel and requested a response,

including as to the discrepancy between respondent’s earlier

statement that he never had seen Morris as a target and

documents showing that he had wanted DOJ to investigate

Morris. At some point, respondent became unrepresented,

and so he sent the third letter in his own behalf.

812 In re Nisley

At the outset of his third letter, under the heading,

“I did not view Ms. Morris as the target of the investigation,”

respondent wrote that he had not “target[ed]” Morris and

reiterated his initial thought that she would not have made

the cash payments without Stone’s approval. He then made

the fourth alleged false statement:

“[In asking OSP and DOJ to investigate,] [m]y plan was to

ask for a general investigation surrounding two seemingly

improper loans of public funds.”

He added that he had mentioned Morris in his referrals

because she had been the person who had made the pay-

ments, and he explained that he referred in emails with

DOJ to the “Morris case” because that is what DOJ had

named the investigation.

Later in his third letter, under the heading,

“Verbiage in eMails * * * Does Not Establish Retaliatory

Investigation,” respondent explained that his communica-

tions with DOJ had been motivated by his frustration with

the investigation, namely, DOJ’s lack of action and its read-

ing of the bargaining agreement. Citing emails in which he

had said that Morris “appears to have committed a crime”

and that he was concerned about her conduct as finance

manager, he made the fifth alleged false statement (empha-

sized wording):

“In hindsight, I can understand how someone would infer

that I saw her as a suspect, but I know what was in my

mind at the time[,] and it was concern about completing

this investigation and determining who was responsible for

authorizing the improper loans.”

(Emphasis added.)

Finally, near the end of his third letter, respondent

made his sixth and final alleged false statement:

“Ms. Morris was in the stream of an investigation, and was

not the target.”

He concluded by stating that, although the investigation

had involved Morris, “[t]his does not equate to me think-

ing [that she] was the ‘target’ of the investigation—I did not

have enough information to form an opinion as to who might

be the ‘target.’ ”

Cite as 365 Or 793 (2019) 813

We begin with the two “nature of the investigation”

statements (fourth and fifth statements). Unlike the three

statements already addressed, respondent’s fourth and fifth

statements do not require that we assess competing infer-

ences; rather, the question is simply whether the Bar proved

that those statements were false when made.

As to respondent’s fourth statement—that, in ask-

ing OSP and DOJ to investigate, he had planned to ask for “a

general investigation surrounding two seemingly improper

loans of public funds”—the Bar’s evidence falls short. It is

true that respondent mentioned Morris (and no other offi-

cial) in both referrals, and that he identified the payments

as a potential “unlawful loan.” As he argues, though, Morris

was the person who made the payments, and he had limited

information available at the time about the surrounding

circumstances. No supporting evidence supports the notion

that—at the time when he made the referrals—he sought to

focus on Morris personally, to the exclusion of anyone else,

as opposed to investigating her conduct in making the pay-

ments to determine whether the payments had been autho-

rized or otherwise permissible.

We reach a contrary conclusion as to respondent’s

fifth statement—that, in the early 2015 timeframe when

he repeatedly communicated with DOJ, his concern had

been to complete the investigation and determine who was

responsible. As recounted earlier, many of respondent’s com-

munications were focused exclusively on Morris, in a way

that demonstrated that he sought to convey to DOJ that

she alone had engaged in wrongdoing. And, respondent had

told DOJ that Culley’s report showed bias toward Morris,

again showing respondent’s focus on Morris as a wrongdoer.

Although we do not disagree with respondent that he also

may have been concerned with completing the investigation

and finalizing any assessment about who was responsible,

the Bar presented clear and convincing evidence that he

had sought to focus DOJ’s attention on Morris.15 And, as

15

We disagree with the trial panel’s assessment that respondent’s fifth state-

ment could have been false only if respondent had a hidden retaliatory motive

beyond the investigation—that is, that the investigation was actually not a “gen-

eral investigation” but, instead, had been intended to retaliate against Morris.

814 In re Nisley

described earlier, his statement was knowing and material

to the Bar’s inquiry.

Finally, respondent’s sixth statement again used

the word “target”—that Morris had been “in the stream of

an investigation, [but] was not the target.” The surrounding

context shows that he did not intend, in that statement, to

mean “target in retaliation.” Rather, he immediately clari-

fied what he meant, characterizing a “target” as a person

about whom sufficient information has been gathered for a

decision-maker to assess that the person is, or likely is, the

wrongdoer in a given situation.

As to whether his “stream of an investigation, [but]

not the target” statement was false, respondent contended

that Morris had not been the “target” under his definition.

On the one hand, it was not false to say that sufficient infor-

mation had not pointed to Morris as a wrongdoer. On the

other hand, though, by the end of the DOJ investigation,

respondent had repeatedly sent DOJ communications that

focused on Morris, and no one else, as a wrongdoer. Notably,

earlier in his third letter, he wrote that—at the point in time

when he had been frustrated with the DOJ investigation—

he did “not recall focusing on [ ] Morris’s conduct in a sin-

gular fashion[,]” and he did not believe that she would have

acted without her supervisor’s authorization. The difficulty

for respondent, though, is that the facts at that juncture did

not bear out either proposition: to the contrary, those aspects

of his letter support the Bar’s contention that, when respon-

dent ultimately concluded his letter by stating that Morris

had been “in the stream of an investigation, [but] was not

the target[,]” he intended to falsely convey to the Bar that

he had not singularly focused on Morris, when, in fact, he

had. As with the other false statements, that statement was

knowingly made and material to the Bar’s inquiry.

D. Summary

In sum, we conclude that the Bar proved that

respondent violated BR 8.1(a)(1)—which it charged as a sin-

gle violation—when he knowingly made four statements to

the Bar, in three separate letters over a four-month period,

that were false and material to the Bar’s inquiry. We turn to

the question of the appropriate sanction.

Cite as 365 Or 793 (2019) 815

III. SANCTION

In determining the appropriate sanction, we refer

to the American Bar Association’s Standards for Imposing

Lawyer Sanctions (1991) (amended 1992) (ABA Standards),

for guidance. Lawrence, 337 Or at 470. We first iden-

tify the duty violated, respondent’s mental state, and the

injury caused. Id. at 471. We next assess the appropriate

preliminary sanction and determine whether aggravat-

ing or mitigating circumstances affect our preliminary

assessment. Id. Finally, we evaluate applicable case law.

Id. As noted earlier, the trial panel imposed a one-month

suspension (for one false statement); the Bar argues for a

six-month suspension (based on six false statements). We

conclude, as explained below, that a 60-day suspension is

appropriate.

As to the duty violated, when respondent made false

statements to the Bar in connection with a disciplinary mat-

ter, he violated his duty as a professional to cooperate com-

pletely and truthfully within a disciplinary investigation.

ABA Standard 7.2; Lawrence, 337 Or at 471.

As to mental state, we have concluded that, in mak-

ing four false statements, respondent acted knowingly. See

ABA Standards at 7 (act is knowing if engaged in with the

“conscious awareness of the nature or attendant circum-

stances of the conduct but without the conscious objective or

purpose to accomplish a particular result”).

As to injury, we agree with the Bar that a lawyer

can cause injury to the lawyer disciplinary system when

the lawyer is not candid during the investigatory process.

See Lawrence, 337 Or at 472 (lawyer caused injury to the

profession when she failed to be truthful with the Bar). In

this case, although the Bar ultimately obtained clarifying

information from DOJ, it would not have had to do so had

respondent been forthcoming in his responses—in that sce-

nario, the Bar more readily could have assessed the valid-

ity of Timmons’s accusation that respondent had initiated a

retaliatory investigation that posed a conflict of interest.

The ABA Standards suggest that the appropriate

preliminary sanction is a suspension. See ABA Standard

816 In re Nisley

7.0 (suspension is appropriate when a lawyer “knowingly

engages in conduct that is a violation of a duty owed to the

profession”).

Turning to aggravating and mitigating circum-

stances, we agree with the Bar that the following aggravat-

ing factors apply: selfish motive, in that respondent sought

to avoid any potential negative effects of the Bar’s investi-

gation, ABA Standard 9.22(b); and substantial experience

in the practice of law, ABA Standard 9.22(i). We also agree

that respondent engaged in a pattern of misconduct, ABA

Standard 9.22(c), in that he made multiple false statements

over a period of time, although we note that his false state-

ments were essentially repetitive of the same points.16 The

only mitigating factor is no prior record of discipline, ABA

Standard 9.32(a).

Finally, we examine our case law. The Bar cites

In re Miles, 324 Or 218, 222-23, 923 P2d 1219 (1996), and

related cases, in which this court has emphasized the seri-

ousness with which it views the failure of a lawyer to coop-

erate with a disciplinary investigation. In Miles, the court

imposed a 120-day suspension on a lawyer who had failed

to respond to the Bar’s inquiries. See also In re Parker, 330

Or 541, 551, 9 P3d 107 (2000) (failure to cooperate, stand-

ing alone, is a serious ethical violation). While the concept

of cooperation has some applicability here, both Miles and

Parker concerned an utter failure to cooperate, as opposed

to cooperation that involved false statements. The court’s

discussion in those cases thus does not squarely address the

same type of misconduct that occurred here. See Miles, 324

16

We decline to apply the following additional aggravating factors urged

by the Bar: deceptive practices during the disciplinary process, ABA Standard

9.22(f), and refusal to acknowledge the wrongful nature of misconduct, ABA

Standard 9.22(g). The substance of the allegation against respondent is that

he acted in a deceptive manner during the disciplinary process and, inferen-

tially, that he refused to acknowledge the wrongful nature of his misconduct

in that matter. Thus, considerations arising from those factors are inherent in

our determination that he violated RPC 8.1(a)(1). See In re Maurer, 364 Or 190,

204, 431 P3d 410 (2018) (“wrongful nature of conduct” factor does not apply

to lawyers seeking to defend themselves against charges; by contrast, it may

apply when a lawyer admits the Bar’s factual allegations in nearly all mate-

rial respects but continues to claim that the conduct was not blameworthy or

detrimental).

Cite as 365 Or 793 (2019) 817

Or at 222-23 (discussing impact of failure to respond on dis-

ciplinary system).17

Nonetheless, other cases involving misrepresenta-

tions during the disciplinary process do suggest that a sus-

pension is appropriate. Unlike this case, though, other cases

also have involved underlying misconduct, resulting in lon-

ger suspensions or even disbarment. See, e.g., Lawrence, 337

Or 450 (90-day suspension for lawyer who concealed details

of her contact with alleged victim from both the trial court

and the Bar); Worth, 336 Or 256 (90-day suspension for law-

yer who made false statement during Bar investigation but

also had neglected client matters and failed to return cli-

ent property); Huffman, 331 Or 209 (two-year suspension for

lawyer who made false statements about his assets to Bar

investigator; lawyer also made misrepresentation in filing

motions to waive or defer filing fees and transcript costs);

Brandt/Griffin, 331 Or 113 (12- and 13-month suspensions

for lawyers who misrepresented an underlying fact to the

Bar, but also failed to avoid making misrepresentations to

client, had lack of candor in dealings with client, and failed

to avoid conflicts of interest); In re Leonhardt, 324 Or 498,

930 P2d 844 (1997) (disbarment imposed on former DA con-

victed of crimes, who also abused grand jury process and

made misrepresentations to court, Bar, and others).

Here, the Bar proved only false statements during

the Bar’s investigation, not underlying misconduct. Notably,

though, respondents misconduct involved making multiple

false statements, sent in three responses to an escalating

inquiry over an extended period of time. And, although the

Bar narrowed its own inquiry in that time—from asking

whether respondent had engaged in a retaliatory investiga-

tion to asking about the nature of his focus on Morris during

the DOJ investigation—respondent essentially repeated the

17

The Bar also cites cases involving the execution of false documentation.

See In re Wyllie, 327 Or 175, 957 P2d 1222 (1998) (two-year suspension; lawyer

had misrepresented his CLE activities in an MCLE report and then lied to the

Bar about it); In re Yacob, 318 Or 10, 860 P2d 811 (1993) (disbarment; lawyer had

presented fabricated documents to Bar in response to inquiry); In re Brown, 298

Or 285, 692 P2d 107 (1984) (two-year suspension; lawyer had knowingly pre-

pared and had client sign a false affidavit, to persuade Bar to drop its investiga-

tion). The misconduct involved in those cases does not provide a useful analogy to

respondent’s false statements in this case.

818 In re Nisley

same false responses, demonstrating a continuing obsti-

nance toward the Bar’s inquiry.

In making four false statements during the Bar’s

investigation, respondent contravened expectations for law-

yer conduct, as well as his obligation to the legal profession

to respond truthfully during a disciplinary inquiry. See In

re Hiller, 298 Or 526, 534, 694 P2d 540 (1985) (“A person

must be able to trust a lawyer’s word[,] as the lawyer should

expect his [or her] word to be understood, without having to

search for equivocation, hidden meanings, deliberate half-

truths or camouflaged escape hatches.”). We conclude that

the appropriate sanction is a 60-day suspension.

Respondent is suspended from the practice of law

for 60 days, commencing 60 days from the date of filing of

this decision.