# In Re Complaint as to the Conduct of Ellis

> Oregon Supreme Court · February 20, 2015 · 356 Or. 691

URL: https://www.frixlaw.com/law-library/cases/2780793

## Case

- **Full name:** In Re Complaint as to the Conduct of BARNES H. ELLIS, Accused. in Re Complaint as to the Conduct of LOIS O. ROSENBAUM, Accused
- **Court:** Oregon Supreme Court
- **Decided:** February 20, 2015
- **Citations:** 356 Or. 691; 344 P.3d 425
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Balmer, Walters, Linder, Landau, Brewer, Baldwin
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2780793

## How later opinions describe it (automated extraction)

- discussing contents of Garten declaration about nature of discussions with FLIR
- describing notice requirements in Bar proceedings

## Opinion text

No. 4 February 20, 2015	691

IN THE SUPREME COURT OF THE
STATE OF OREGON

In re Complaint as to the Conduct of
BARNES H. ELLIS,
Accused.
(OSB No. 09-54; SC S061385)
In re Complaint as to the Conduct of
LOIS O. ROSENBAUM,
Accused.
(OSB No. 09-55; SC S061385)

On review of the decision of the trial panel of the
Disciplinary Board.*
Argued and submitted March 4, 2014, at Lewis and Clark
Law School, Portland, Oregon.
W. Michael Gillette, Schwabe Williamson & Wyatt PC,
Portland, argued the cause and filed the briefs for the
Accuseds.
Mary A. Cooper, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State
Bar.
Before Balmer, Chief Justice, and Walters, Linder,
Landau, Brewer, and Baldwin, Justices.**
PER CURIAM
The amended complaints are dismissed.

______________

**  Trial Panel Opinion May 7, 2013.

**  Kistler, J., did not participate in the consideration or decision of this case.
692 In re Ellis / Rosenbaum

The Oregon State Bar charged the accuseds with violating multiple provi-
sions of the former Code of Professional Responsibility—arising from their repre-
sentation of a public company and several company directors, officers, and man-
agers in various proceedings over several years—including former DR 5-105(C)
(waivable former-client conflicts with insufficient disclosure); former DR 5-105(E)
(nonwaivable current-client conflicts and waivable current-client conflicts with
insufficient disclosure); and former DR 1-102(A)(3) (misrepresentation by omis-
sion). Held: (1) The Bar did not prove by clear and convincing evidence that, at the
outset of an investigation by the Securities and Exchange Commission (SEC), the
interests of the company and the individual clients were adverse under former
DR 5-105(A)(2); the Bar therefore did not prove the existence of a current-client
likely conflict of interest under former DR 5-105(E); (2) The record does not show
that the clients’ interests were adverse during the SEC investigation, including
during the Wells phase (in which the SEC notified several clients of its intent
to pursue civil enforcement actions against them), and therefore did not prove
a current-client likely conflict under former DR 5-105(E); (3) No actual conflict
of interest existed between the company and the individual clients during the
Wells phase under former DR 5-105(A)(1) and former DR 5-105(E); (4) Ellis’s sub-
sequent representation of the company’s general counsel in a lawyer disciplinary
matter did not involve the same or significantly related matter as the SEC pro-
ceeding under former DR 5-105(C)(1), and, therefore, no former-client likely con-
flict existed under former DR 5-105(C); (5) Assuming that, in a limited represen-
tation of the company during a subsequent Department of Justice investigation,
a likely conflict of interest existed between the company and former clients from
the SEC representation, the accuseds sufficiently disclosed that conflict to their
former clients, so as to obtain their consent to the limited representation; and (6)
the Bar did not prove by clear and convincing evidence that the accuseds engaged
in misrepresentation by omission under former DR 1-102(A)(3).
The amended complaints are dismissed.
Cite as 356 691 (2015)	693

PER CURIAM
This lawyer disciplinary proceeding involves sev-
eral allegations under the former Code of Professional
Responsibility.1 The accuseds (also individually referred to
as Ellis or Rosenbaum in this opinion) represented a pub-
lic company involved in various protracted proceedings over
several years and also represented some company directors,
officers, and managers during some of those same proceed-
ings. The Bar charged the accuseds in separate complaints
with multiple violations of several former Disciplinary
Rules, including former DR 5-105(C) (waivable former-client
conflicts with insufficient disclosure); former DR 5-105(E)
(nonwaivable current-client conflicts and waivable current-
client conflicts with insufficient disclosure); and former DR
1-102(A)(3) (misrepresentation by omission). A trial panel of
the Disciplinary Board concluded that, although the Bar had
not proved most of the charged violations, it did sufficiently
prove that some client conflicts of interest had existed, that
the accuseds had made insufficient disclosures as to those
conflicts, and that the accuseds had made related misrep-
resentations by omission in a particular conflict disclosure
letter. The panel determined that a public reprimand was
the appropriate sanction. The accuseds sought review as to
all allegations that the panel determined that the Bar had
proved, and the Bar sought review as to some additional
allegations that the panel determined had not been proved.
For the reasons explained below, we dismiss the amended
complaints.
I. FACTS
We review the record de novo. Bar Rule of Procedure
(BR) 10.6. The Bar must prove its allegations by clear and
convincing evidence. BR 5.2. “Clear and convincing evi-
dence” means that “the truth of the facts asserted is highly
probable.” In re Phinney, 354 Or 329, 330, 311 P3d 517 (2013)
(internal quotation marks omitted). We set out a general fac-
tual summary below and discuss later in this opinion addi-
tional facts that relate to particular issues on review. We
1
The Oregon Rules of Professional Conduct replaced the former Oregon Code
of Professional Responsibility effective January 1, 2005. In re Balocca, 342 Or
279, 281 n 1, 151 P3d 154 (2007).
694 In re Ellis / Rosenbaum

draw all facts from the testimony and record before the trial
panel, and from public court records in related proceedings.2
A.  Company Background, Accounting Issues, and Class
Action Litigation
FLIR Systems, Inc. (FLIR) is a publicly traded
Portland, Oregon, company that manufactures and sells
thermal imaging equipment and broadcast camera systems,
including to governmental entities. In early 2000, key FLIR
directors, officers, and managers included Daltry (Board of
Directors Chair), Wynne (board member), Stringer (President
and Chief Executive Officer (CEO)), Samper (Chief Financial
Officer (CFO)), Martin (Vice President of Sales (Worldwide)),
Fitzhenry (General Counsel), and Eagleburger (Director of
Sales Operations and Senior Vice President for Sales and
Marketing). As CFO, Samper was responsible for FLIR’s
accounting and preparation of its financial statements.
As the 1990s ended, FLIR’s corporate accounting
grew more complicated, in part due to recent mergers and
acquisitions, and installation of a new enterprise reporting
system. In 1999, FLIR had difficulty completing its financial
statements on time. At a February 2000 Board of Directors
meeting, Samper reported that FLIR’s financial statements
again would not be prepared on time. By that point, at least
some board members began to doubt the competency of
management, including Samper’s ability to serve as CFO.
Samper resigned shortly thereafter.
FLIR then discovered several accounting errors,
including improperly claimed revenue in 1998 and 1999
for several transactions that appeared to be without suffi-
cient foundation.3 As a result of that review, FLIR decided

2
We take judicial notice of additional facts drawn from judicial opinions and
court dockets in a related criminal case prosecuted in the United States District
Court, District of Oregon, and appealed to the Ninth Circuit. See In re Fitzhenry,
343 Or 86, 109 n 17, 162 P3d 260 (2007) (taking judicial notice of fact in public
record).
3
In general, the accounting issues concerned FLIR’s “revenue recognition”
practices—that is, the point in time at which FLIR could confirm with cer-
tainty that it could include revenue derived from a particular transaction in its
financial statements. Several transactions later identified as problematic had
involved revenue recognized either prematurely or without sufficient supporting
documentation.
Cite as 356 691 (2015)	695

to restate certain 1998 and 1999 financial statements pre-
viously filed with the Securities and Exchange Commission
(SEC). In doing so, FLIR’s independent auditor instructed
FLIR to apply retroactively to the past 1998 and 1999
transactions a new SEC directive, which dictated a delay
as to when certain revenue could be recognized in a com-
pany’s financial statements. The underlying restatement
calculations, combined with retroactive application of the
new directive, ultimately caused a notable drop in FLIR’s
reported revenue for the identified time frame.

FLIR publicly announced its intent to restate.
FLIR’s stock price dropped, and, in early March 2000,
several shareholders filed class action securities litigation
against FLIR, Stringer, Samper, and eventually Daltry.

Later in March 2000, FLIR retained the accuseds,
both partners at Stoel Rives LLP, in the class action litiga-
tion, and it informed Stringer and Samper that it would pay
for their representation by the accuseds or other counsel.
The accuseds sent engagement letters to FLIR, Stringer,
and Samper, stating that a unified defense was advan-
tageous and that they did not anticipate that any conflict
would arise, but that each individual defendant might
wish to consult with independent counsel for monitoring
purposes; the letter also recommended consultation before
consenting to the joint representation. Stringer declined
and retained outside counsel. Samper already had retained
outside counsel, Glade and Kaner, but decided in consulting
with them to agree to have the accuseds serve as co-counsel.
Glade accepted the joint representation on Samper’s behalf,
noting that—in the unlikely event that an actual conflict
arose—Samper reserved his rights regarding his consent to
the accuseds’ continued representation of FLIR. After Daltry
became a defendant in the class action, he also agreed to the
joint representation, and he signed a similar consent letter.
Fitzhenry consented on FLIR’s behalf. When the accuseds
began representing FLIR, Daltry, and Samper in the class
action, they understood FLIR’s accounting issues to be the
result of possible management competency issues and an
overworked and underesourced accounting staff, but not
fraudulent actions by any FLIR officer or manager.
696 In re Ellis / Rosenbaum

FLIR ultimately filed three SEC restatements
between April 2000 and March 2001. The class action litiga-
tion eventually settled in April 2001, before discovery, with
payment by both FLIR’s insurer and FLIR. No allegations
in this proceeding concern the class action litigation.

At about the time that FLIR retained the accuseds,
FLIR’s board appointed a special committee, which included
Wynne, to examine more closely the 1998 and 1999 finan-
cial misstatements and underlying accounting problems. In
working with a prospective new independent auditor, the
committee determined that it should assess the integrity of
current management, which at that time included Daltry
and Stringer (but not Samper, who had resigned, although
the board had approved retaining him as an independent
consultant to assist with the restatements). The commit-
tee determined that Stringer had engaged in misrepresen-
tations, and the board later decided that he should resign.
Stringer was placed on administrative leave in May 2000
and later terminated; Daltry also resigned. By then, Wynne
had come to question Stringer’s integrity, but not Samper’s;
instead, he continued to view Samper as having competency
issues only, and he did not think at this time that FLIR’s
management had engaged in any fraud.

B.  SEC Investigation

Meanwhile, the SEC had begun investigating
FLIR’s accounting, arising from the same general facts and
issues alleged in the class actions. The SEC began issu-
ing subpoenas to FLIR officers, managers, and employees
in late June 2000. At FLIR’s request, the accuseds’ joint
representation—initially formed for the class action litigation—
expanded to include any current or former FLIR officer,
manager, or employee who received an SEC subpoena
and who consented to be included in the joint representa-
tion. The accuseds continued their joint representation of
FLIR, Daltry (for purposes of his SEC interview only), and
Samper (who also continued to be separately represented
by Glade and Kaner); they also began representing Wynne,
Fitzhenry, and Eagleburger for purposes of the SEC investi-
gation. The accuseds ultimately represented about 35 to 40
Cite as 356 691 (2015)	697

individuals, slightly more than half the witnesses that the
SEC examined.
Although the accuseds represented many individu-
als in the SEC investigation, they sent only eight engagement
letters, directed to the individual clients who they thought
had the greatest potential for future possible conflicts,
including members of the board, Daltry, and Eagleburger.
Those letters requested consent to the joint representation
by using similar wording as the earlier class action letters;
they did not include any new wording relating to the SEC
investigation. The accuseds did not send a letter to Samper,
because he only recently had signed a similar letter in the
class action involving the same facts. For his part, Glade
did not necessarily expect the accuseds to send a separate
engagement letter to Samper, because he assumed that the
SEC representation would proceed in the same fashion as
the class action litigation—that is, he and Kaner would
remain knowledgeable so as to provide independent advice
to Samper and be available to take over responsibility for
him as necessary.4 The accuseds agreed with each other to
watch for emerging conflicts between their clients.
The joint representation strategy in the SEC inves-
tigation was purposeful. According to the testimony of sev-
eral witnesses before the trial panel, rules governing SEC
investigations limit information available to subject compa-
nies and witnesses, while maximizing the SEC’s ability to
acquire information. A lawyer is permitted to attend a wit-
ness interview only if representing the witness, and the abil-
ity to examine transcripts and exhibits shown to witnesses
during interviews is similarly limited. Joint representation
therefore permits the company’s attorneys to act as a central
clearinghouse to obtain, consolidate, and disseminate mate-
rial information—such as subpoenaed documents and the
content of other witness interviews—to the joint clients, so
as to maximize the amount of information flowing to all rep-
resented individuals. That global collection of information,
in turn, helps the company and all involved individuals to
4
The evidence conflicts as to whether the accuseds sent a separate SEC
engagement letter to Fitzhenry. Rosenbaum thought that they had sent him such
a letter, but Ellis recalled that they had not, because they had no expectation that
the SEC investigation posed any risk to him.
698 In re Ellis / Rosenbaum

clarify the nature and focus of the investigation, and to pro-
vide useful information to the SEC. Also, unless the nature
of the investigation lends itself to blame-shifting—such as
cases involving insider trading, embezzlement, or obstruc-
tion of justice—the interests of the company and the vari-
ous witnesses tend to be aligned during the investigation
phase, because both the company and the witnesses seek to
provide the SEC with truthful information so as to under-
stand more fully the scope and direction of the investigation,
and to ameliorate the need for any continued investigation.
Joint representation therefore is a common practice during
the SEC investigation phase, when appropriate under the
circumstances. As part of a joint representation, it also is
common for some individual witnesses to have their own,
independent lawyers, who monitor the proceedings to eval-
uate whether any conflict arises and who later may serve as
lead counsel for their clients if needed.

During the SEC investigation, subpoenaed wit-
nesses typically sent requested documents to Fitzhenry, and
he sent them to the accuseds. The accuseds maintained all
the documents in a room at Stoel Rives in part for SEC staff
review; if SEC staff then marked a document for produc-
tion, Stoel Rives would catalogue the document in a FLIR
database and produce it to the SEC. Also as part of the
joint representation, either Ellis or, more often, Rosenbaum
attended all their clients’ SEC interviews. Rosenbaum took
extensive notes during the interviews that she attended,
and she provided to individual witness clients or the law-
yers of represented witness clients written summaries of
all information that she learned during the interviews that
was relevant to that client. The accuseds also provided sev-
eral interview transcripts to their individual clients or their
lawyers.

Part of the SEC’s investigation explored Samper’s
involvement, as CFO, in FLIR’s accounting problems that had
prompted the restatements. Either Glade and Rosenbaum
or Kaner and Rosenbaum attended all Samper’s SEC inter-
views, and Rosenbaum provided to Glade and Kaner com-
prehensive written summaries of all other witness testi-
mony and other documentation that, in her judgment, was
Cite as 356 691 (2015)	699

material to Samper’s involvement.5 The accuseds, Glade,
and Kaner continuously conferred through the course of the
SEC investigation regarding the transactions at issue and
the SEC’s inquiries touching on Samper. For example, early
in the investigation, a FLIR employee, Chambers, stated
that Samper had directed the destruction of a document that
she had created to track inventory. Rosenbaum, Glade, and
Kaner thereafter provided information to the SEC, through
Samper, showing that Chambers did not have a full under-
standing of the situation and that the destruction request
had been appropriate. By the later part of 2001, Glade and
Kaner continued to think that Samper did not have any con-
flicting interest with FLIR of which the accuseds would have
been aware,6 and they continued to think that Samper’s and
FLIR’s interests aligned.
The SEC focused on numerous specific transac-
tions during its investigation, including a $4.6 million 1999
transaction—the “Swedish Drop Shipment”—that had
prompted FLIR’s second SEC restatement. Samper had men-
tioned that transaction to the SEC, and the SEC questioned
both Samper and Stringer about its underlying entries.
Samper told the SEC that Stringer had directed him to
make certain entries and therefore he had done so, but FLIR
later changed those entries in its second restatement.
Also during the SEC interviews, several of the
accuseds’ individual clients offered statements that argu-
ably could be construed as unfavorable to other clients,
particularly Samper. The accuseds continued to evaluate
whether any conflict among various clients had arisen,
but they determined that their clients’ interests remained

5
The record shows that Rosenbaum sent Glade and Kaner a significant
volume of documentation and also provided their law firm with a copy of Stoel
Rives’s FLIR database.
6
Samper and FLIR had a dispute about the terms of an earlier agreement
between them, concerning Samper’s exercise of stock options following termina-
tion of employment. That dispute prompted Samper to think that his relationship
with FLIR was becoming more adverse through the course of the SEC investiga-
tion. The accuseds were not aware of that issue, however; indeed, Glade testified
that he did not involve Rosenbaum in any options dispute discussion because he
did not want to taint her relationship with Samper or FLIR for purposes of the
SEC investigation. Glade further testified that Samper ultimately decided to con-
tinue the joint representation notwithstanding the options dispute.
700 In re Ellis / Rosenbaum

aligned and therefore made no additional disclosures during
the investigation phase.7
As the SEC investigation progressed, Wynne
worked with a new FLIR controller, Muessle, who had
reviewed multiple earlier recorded transactions and deter-
mined that many should not have been entered due to insuf-
ficient supporting documentation. By spring 2001, Wynne
concluded that FLIR’s former management had engaged in
securities fraud. As to Samper specifically, Wynne concluded
that Samper had made entries and submitted financial
statements that contained figures manipulated as a result
of fraud, which, in Wynne’s view, satisfied the definition of
securities fraud, even if Samper himself had not manipu-
lated any figures. The accuseds were unaware until several
years later that Wynne had reached that general conclusion
about Samper.
Meanwhile, in July 2001, Stringer sued FLIR for
wrongful termination, and the accuseds’ firm, Stoel Rives,
represented FLIR in that action. The complaint eventually
was dismissed with prejudice in 2003.
The SEC investigation effectively concluded near
the end of 2001. Typically, at the close of an SEC investi-
gation phase, the SEC decides whether to send a “Wells
Notice” to the company or other individuals. A Wells Notice
is an official notification that outlines the SEC’s potential
case against the recipient, laying the groundwork for a pos-
sible civil enforcement action. During the “Wells phase,”
each Wells Notice recipient typically meets separately with
the SEC to discuss the SEC’s theory of its case against that
recipient. A Wells Notice recipient then may file a “Wells
Submission” that offers a specific response to the Wells
Notice. Often, the Wells process frames ensuing settlement
negotiations between the SEC and a Wells Notice recipient.
7
The SEC interviewed many other witnesses who were not the accuseds’
clients, including Stringer, a previous FLIR controller, the previous and current
FLIR auditors, and a previous FLIR Vice President of Manufacturing, who some
inside FLIR suspected had initiated the SEC investigation. More than half the
SEC’s interview time in its investigation was devoted to witnesses who were not
the accuseds’ clients. Under the SEC’s investigation rules, the accuseds were not
privy to any information provided by witnesses whom they did not represent and
therefore did not know the extent to which those witnesses might have testified
unfavorably as to Samper or their other clients.
Cite as 356 691 (2015)	701

In February 2002, the SEC issued Wells Notices to
FLIR and Samper, indicating its intention to recommend sep-
arate civil enforcement actions against them. The SEC also
issued similar Wells Notices to Fitzhenry and Eagleburger,8
which the accuseds had not anticipated, and to others who
were not the accuseds’ clients, including Stringer; Martin
(FLIR’s former Vice President of Sales (Worldwide), who
effectively had been terminated in spring 2000); and FLIR’s
previous auditor. Ellis immediately advised Fitzhenry and
Eagleburger to obtain independent counsel, and they both
did so. Wilson began representing Fitzhenry, and Neil began
representing Eagleburger; as to both clients, the accuseds
remained available as supporting co-counsel. As to Samper,
Glade and Kaner took the lead in his representation during
the Wells phase, with the accuseds moving to a supporting
co-counsel role as needed. The accuseds continued to repre-
sent FLIR.
In early March 2002, FLIR had its Wells meeting
with the SEC, which included Wynne, the accuseds, and
FLIR’s then-current CEO, Lewis. At that meeting, FLIR
emphasized its remediation efforts. Also at the meeting, SEC
staff questioned both Samper’s and Fitzhenry’s truthfulness,
based on their investigation. After the meeting, Rosenbaum
reported the general discussion to Glade and Kaner, and
also to Neil, once he began representing Eagleburger. Among
other things, Rosenbaum told Kaner that the SEC thought
that Samper had not been forthcoming.
Samper’s Wells meeting was scheduled for the fol-
lowing week. Before that meeting, Ellis left a long voicemail
message for Glade that emphasized the SEC’s strident tone
in FLIR’s Wells meeting; emphasized the SEC’s certitude
that wrongdoing had occurred, including by Samper; and
recommended possible approaches for Samper. Glade and
Kaner—but not the accuseds—attended Samper’s Wells
meeting. Even with Ellis’s forewarning, they were shocked
by the SEC’s tone and negative view of Samper. In the
course of discussing its case against Samper, the SEC told
Glade and Kaner that Rosenbaum had represented most of
8
The SEC issued Eagleburger’s Wells Notice in mid-March 2002, after FLIR
filed its Wells Submission, as described later in the text.
702 In re Ellis / Rosenbaum

the witnesses who purportedly had implicated Samper in
problematic transactions.
Rosenbaum was out of the country during Samper’s
Wells meeting, but she e-mailed Glade afterwards to ask how
it had gone. Glade responded that it was “what you would
expect” and had involved familiar transactions, that the
SEC was relying on FLIR employees who did not have first-
hand knowledge of key events, and that the SEC thought
that Samper had been disingenuous at best. Rosenbaum
and Glade then exchanged thoughts about Samper prepar-
ing a Wells Submission; Glade’s side of the communication
acknowledged that Rosenbaum had been supplying him
with her witness notes all along, suggesting that he already
had been privy to statements about Samper from Stoel
Rives-represented witnesses on which the SEC had relied in
Samper’s Wells meeting.
The accuseds, Wynne, and Fitzhenry drafted
FLIR’s Wells Submission, filed in March 2002. FLIR’s
Wells Submission purposefully focused on current manage-
ment’s remediation efforts since discovery of the 1998 and
1999 accounting issues. FLIR emphasized a near-complete
turnover of management and auditors, and its expansion
and strengthening of its accounting personnel and con-
trols, including removal of senior management responsible
for FLIR’s troubles. FLIR described the earlier account-
ing issues as “errors” or “problems,” not “fraud.” FLIR also
stated that, to the extent that any wrongdoing might have
occurred, FLIR understood that the SEC was “pursuing
fraud claims against one or more individuals who may
have been responsible.” In crafting its Wells Submission,
FLIR intended to refer to only Stringer and Martin as the
senior management who had been “removed” and against
whom the SEC was “pursuing” further action. FLIR’s Wells
Submission did not expressly take any position or make
any characterization about Samper, Daltry, or Eagleburger,
although it did comment favorably on Samper’s coopera-
tion with the SEC; it also included an expressly favorable
statement about Fitzhenry, who was the only member of the
current senior management team who had worked at FLIR
in 1998 and 1999, and so the drafters thought it important
to offer a positive comment about his ongoing employment.
Cite as 356 691 (2015)	703

At the time that FLIR prepared its Wells Submission, the
accuseds had concluded that Stringer and Martin—but not
Samper or any of their other clients—had acted fraudulently
in relation to FLIR’s 1998 and 1999 accounting errors.
Upon receipt of FLIR’s Wells Submission, Glade
reviewed it and construed it as inferentially referring to
Samper as a bad actor. Ellis, however, assured Glade that
FLIR had not intended to identify Samper as a culpable
actor; instead, FLIR’s Wells Submission focused on forward-
looking remediation only. Glade and Kaner continued to rep-
resent Samper through the Wells phase, with the accuseds
continuing as supporting co-counsel, communicating almost
daily with Glade and Kaner. Samper ultimately did not file
a Wells Submission.
Fitzhenry and Eagleburger also each had Wells
meetings with the SEC, attended by their respective inde-
pendent counsel and Ellis. Ellis worked on a draft Wells
Submission for Eagleburger at Neil’s request.
Individual negotiations with the SEC commenced
thereafter, resulting in separate settlement orders, finalized
in judgment form by October 2, 2002, between the SEC and
FLIR, Samper, and Eagleburger; an order as to Fitzhenry
issued later, in November 2002.9 The accuseds represented
9
Among other things, the SEC’s judgment against FLIR set out several
SEC findings of fraud—which FLIR neither admitted nor denied—relating to
FLIR’s revenue recognition practices and other accounting and related activities.
The order included a “cease and desist” provision, respecting future violations
of federal securities law, and, because of the fraud findings, it also removed for
a five-year period FLIR’s “safe harbor” protection under federal securities law.
(Witnesses testified that, when in place and when predicate conditions are met,
the “safe harbor” protection shields a public company from legal actions based
on incorrect financial projections.) As a result of its SEC judgment, FLIR also
was later required to defend against a costly debarment proceeding, which—had
debarment been ordered—would have prohibited FLIR from selling its products
to the federal government, a key customer.
The SEC’s judgment against Samper permanently enjoined him from engag-
ing in several particular actions in violation of federal securities law; imposed
a civil penalty of $110,000 and a disgorgement order of $52,500 plus interest;
and permanently prohibited him from serving as an officer or director of a com-
pany that issued securities or was required to file SEC reports. The SEC’s judg-
ment against Eagleburger contained several injunction provisions similar to
the judgment against Samper and imposed a civil penalty of $25,000. The SEC
order against Fitzhenry precluded him from practicing before the SEC for five
704 In re Ellis / Rosenbaum

FLIR in its negotiations, but did not participate in negoti-
ations involving the three individual clients, who instead
continued to be represented by their respective indepen-
dent counsel. Following finalization of the SEC settlements,
the accuseds considered their representation of Samper,
Fitzhenry, and Eagleburger—and of Daltry, who had not
received a Wells Notice—to be at an end. Stringer did not
settle with the SEC, and the SEC later filed a complaint
against him.
In the same general timeframe as the SEC Wells
process and settlements, FLIR continued to defend against
Stringer’s wrongful termination action. Wynne, who by now
had replaced Fitzhenry as FLIR’s General Counsel, deter-
mined that the SEC’s open Stringer investigation might be
helpful to FLIR in defending against his wrongful termi-
nation action. After the SEC settlements against FLIR and
Samper had been finalized, Wynne reviewed the SEC’s com-
plaint against Stringer and was surprised that it did not
include any allegation about the Swedish Drop Shipment
entry, which Wynne thought was the most egregious exam-
ple of financial irregularity tied directly to Stringer. Wynne
also thought that that entry—which never had identified
either an underlying transaction or product—was criti-
cal to FLIR’s defense against Stringer’s pending wrongful
termination action because it tended to justify Stringer’s
termination. Wynne therefore asked Rosenbaum, in her
capacity as FLIR’s counsel, to contact the SEC and inquire
about the absence of that entry from the SEC’s complaint
against Stringer. At that time, Rosenbaum considered her
representation of all the joint representation clients other
than FLIR to be over; also, both she and Ellis thought that
the Swedish Drop Shipment entry implicated Stringer, but
not Samper, who no longer had a pending action before the
SEC. Rosenbaum called the SEC on October 3, 2002, con-
veying Wynne’s offer that FLIR would assist the SEC in
its case against Stringer and noting Wynne’s surprise that
the SEC’s complaint against Stringer did not mention the
Swedish Drop Shipment.

years. The settlements with all three individual clients incorporated consents to
entry of judgment or order, in which the clients neither admitted nor denied the
allegations in the SEC complaints against them.
Cite as 356 691 (2015)	705

C.  Fitzhenry’s Bar Matter
Also in October 2002, Fitzhenry asked Ellis to
self-report to the Bar on Fitzhenry’s behalf, regarding an
acknowledgment in Fitzhenry’s Wells Submission and SEC
settlement order that he had signed an inaccurate manage-
ment representation letter in 1999, in reliance on prior sig-
natures from Stringer, Samper, and others.10 Ellis notified
the Bar and sent a confirming letter in November 2002,
explaining that Fitzhenry by his signature had intended
to verify only the legal—not accounting—representations
made in the management representation letter and that
he otherwise had relied on FLIR’s CEO (Stringer), CFO
(Samper), and outside auditors for verification that a par-
ticular sale referred to in the letter could be recorded and
that the accounting representations were therefore accu-
rate. The next month, Ellis sent the Bar additional materi-
als and a longer letter that, among other things, reiterated
that Samper, as CFO and also a signatory on the letter, was
a person directly responsible for accounting issues at FLIR
and that Samper had assured Fitzhenry that the represen-
tations in the letter were accurate. The Bar filed a complaint
against Fitzhenry in November 2003, and Ellis thereafter
represented him in his Bar matter. This court ultimately
suspended Fitzhenry for 120 days, for violating former
DR 1-102(A)(3) (conduct involving misrepresentation). In re
Fitzhenry, 343 Or 86, 162 P3d 260 (2007).
D.  Department of Justice Investigation
In January 2003, an Assistant United States
Attorney, Garten, told Ellis that the Department of Justice
(DOJ) was opening a criminal investigation into FLIR’s
accounting. None of the involved lawyers who testified at
the trial panel hearing—including the accuseds—had antic-
ipated a criminal investigation, and they all were surprised
to learn about it.11 Over the next several weeks, Garten and
10
The letter was a negative assurance letter to FLIR’s independent auditor,
intended to represent that its contents—which concerned several transactions—
were accurate to the best of each signatory’s belief. Daltry, Stringer, Samper, and
others had signed the letter before Fitzhenry.
11
According to testimony in the record, in the early 2000s, if the DOJ became
interested in the target of an SEC investigation, then the SEC investigation typ-
ically would be stayed and the DOJ would commence its own investigation. That
706 In re Ellis / Rosenbaum

the accuseds either met or communicated several times, and
the accuseds produced FLIR documents to the DOJ or the
FBI at Garten’s request. As discussed below and later in
this opinion, the nature of the conversations and extent of
the document production underlie some of the Bar’s conflict
of interest and misrepresentation allegations.
Garten initially told the accuseds that he did not
intend to target FLIR, but he pressed for both FLIR and the
accuseds personally to cooperate with the DOJ in building a
case against all potential defendants. In a subsequent meet-
ing that Ellis attended, Lewis assured Garten that FLIR
would cooperate, but the accuseds did not think that they
ethically could assist in a case against their former clients.
Garten later wrote to the accuseds and reiterated
his request that they cooperate; his letter also suggested
that FLIR had requested immunity.12 Garten eventually
withdrew his request for the accuseds’ personal cooperation,
although he continued to request assistance with document
production and witness scheduling. Garten also told the
accuseds in his last meeting with them that, as to Daltry
and Fitzhenry but not Samper, he might not pursue indi-
vidual criminal cases if they cooperated. Garten later sent
a confirming e-mail that continued to request the accuseds’
assistance in witness scheduling and reiterated an earlier
document request. Thereafter, the accuseds had no direct
contact with Garten other than document production—
which by this time was ongoing—and witness scheduling.
On the same day as the accuseds’ last meeting with
Garten, Rosenbaum told Glade—and later confirmed in
writing—that FLIR was not a DOJ target and that Samper

practice began to change after the Enron scandal that began in 2001, with its
ensuing criminal prosecutions that continued for years afterward. Here, unbe-
knownst to the accuseds and other participants in the SEC proceeding, the SEC
and the DOJ had been communicating about the FLIR investigation since sum-
mer 2000.
As to Samper specifically, the accuseds, Glade, and Kaner all thought
throughout the SEC investigation that Samper had not acted fraudulently and
did not think at the time of Samper’s SEC settlement that he would need a crim-
inal attorney.
12
As explained later in this opinion, other evidence in the record—including
testimony from various witnesses and a subsequent declaration from Garten—
showed that the DOJ did not make any immunity arrangement with FLIR.
Cite as 356 691 (2015)	707

and others, including Daltry, Fitzhenry, and Eagleburger,
might need lawyers in connection with the DOJ investi-
gation. Her confirming letter to Glade also stated that the
accuseds expected to continue to assist FLIR with docu-
ment production and witness scheduling. Rosenbaum sent
a similar letter to Eagleburger’s independent counsel, Neil.
Rosenbaum also eventually reached Daltry; on her recom-
mendation, Daltry immediately retained criminal defense
counsel, Myers. Rosenbaum told Myers about Garten’s doc-
ument requests, that FLIR was not a DOJ target, and that
Garten was inclined to give Daltry immunity if he cooper-
ated; Ellis reiterated several of those points to Myers the
next day. By about this time, Stoel Rives had sent numerous
FLIR documents to either the DOJ or the FBI—many were
part of the public record, and many, but not all, had been
produced to the SEC previously.
In late February 2003, after meeting with Garten
to reiterate FLIR’s intent to cooperate, Wynne proposed to
the accuseds that FLIR retain separate counsel as to the
DOJ investigation but that the accuseds continue to produce
FLIR documents as needed and to schedule witness inter-
views.13 The accuseds tentatively agreed and determined
that they were not obligated to make any disclosure about
the arrangement to Daltry, Samper, or Eagleburger. They
nonetheless decided, in the exercise of caution, to send a dis-
closure letter and obtain consent.
On March 3, 2003, Rosenbaum sent a disclosure let-
ter to FLIR and also, in care of their individual counsel, to
Daltry, Samper, and Eagleburger. The letter explained that
FLIR was cooperating with the DOJ and did not expect to be
a defendant; that Stoel Rives had been asked to advise FLIR
and assist in producing documents and scheduling witness
interviews; that the investigation related to the accuseds’
earlier representations of Daltry, Samper, and Eagleburger,
and had potentially adverse consequences to them; and
that Stoel Rives would not voluntarily disclose either client
confidences or information or materials arguably subject

13
The accuseds characterize that arrangement as “Stoel Rives’s ministerial
role.” We refer to the arrangement as the accuseds’ limited representation of
FLIR during the DOJ investigation.
708 In re Ellis / Rosenbaum

to confidentiality claims. The former clients all consented.
In the meantime, the accuseds scheduled further witness
interviews and had produced more documents to the DOJ.
For its part, FLIR retained other counsel to represent it in
other aspects of the DOJ investigation.
In September 2003, Stringer, Martin, and Samper
were indicted in United States District Court for criminal
securities violations. They moved to dismiss, asserting viola-
tions of due process and self-incrimination protections stem-
ming from surreptitious cooperation between the SEC and
the DOJ. Samper further argued that the government had
taken unfair advantage of the accuseds’ purported conflict
of interest. The District Court agreed with the defendants’
arguments and dismissed the indictments in 2006, but
the Ninth Circuit vacated the dismissals in 2008.14 United
States v. Stringer, 535 F3d 929, 942 (9th Cir 2008). The
Ninth Circuit decision brought the case to the Bar’s atten-
tion. None of the clients or lawyers involved complained to
the Bar about the accuseds’ conduct.
E.  Bar Complaints and Trial Panel Hearing and Decision
The Bar filed amended complaints against the
accuseds in February 2012, alleging violations of former DR
1-102(A)(3) (misrepresentations by omission) (one cause and
one alternative cause as to each); former DR 5-105(C) (former-
client conflict) (one alternative cause as to each, and one addi-
tional cause as to Ellis); and former DR 5-105(E) (current-
client conflict) (nine causes as to Rosenbaum, and 10 as to
Ellis). The amended complaints were identical, except that
the complaint against Ellis contained two additional allega-
tions concerning his representation of Fitzhenry in the lat-
ter’s Bar matter.
The trial panel conducted a hearing in 2012 and
concluded in 2013 that the Bar had not proved most of the
alleged violations, but had proved some violations, and fur-
ther determined that the appropriate sanction was a public
reprimand. The accuseds requested review of all the panel’s
conclusions that violations had occurred, and the Bar raised
14
The DOJ eventually moved to dismiss most of its charges against Stringer
and Samper, but ultimately obtained one misdemeanor conviction, for receiving
stolen money, as to each of them.
Cite as 356 691 (2015)	709

additional challenges to several panel conclusions that no
violation had occurred. We summarize the panel’s decisions
at issue on review in our discussion below.
II.  DISCIPLINARY RULES
As noted, the Bar’s complaints alleged misconduct
under the former Code of Professional Responsibility.15 Former
DR 5-105 set out the client-conflict rules and provided, in part:
“(A)  Conflict of Interest. A conflict of interest may be
actual or likely.
“(1)  An ‘actual conflict of interest’ exists when the
lawyer has a duty to contend for something on behalf of
one client that the lawyer has a duty to oppose on behalf of
another client.
“(2)  A ‘likely conflict of interest’ exists in all other situ-
ations in which the objective personal, business or property
interests of the client are adverse. A ‘likely conflict of inter-
est’ does not include situations in which the only conflict is
of a general economic or business nature.
“* * * * *
“(B)  Knowledge of Conflict of Interest. For purposes
of determining a lawyer’s knowledge of the existence of a
conflict of interest, all facts which the lawyer knew, or by
the exercise of reasonable care should have known, will be
attributed to the lawyer.
“(C)  Former Client Conflicts—Prohibition. Except as
permitted by [former] DR 5-105(D), a lawyer who has rep-
resented a client in a matter shall not subsequently repre-
sent another client in the same or a significantly related
matter when the interests of the current and former clients
are in actual or likely conflict. Matters are significantly
related if either:
“(1)  Representation of the present client in the subse-
quent matter would, or would likely, inflict injury or dam-
age upon the former client in connection with any proceed-
ing, claim, controversy, transaction, investigation, charge,

15
We quote the former disciplinary rules at issue from the 2000 version of
the former Code of Professional Responsibility. The text from the 2000 versions of
the rules remained the same through 2004, which spans the years of the events
at issue in this case.
710 In re Ellis / Rosenbaum

accusation, arrest or other particular matter in which the
lawyer previously represented the former client; or
“(2)  Representation of the former client provided the
lawyer with confidences or secrets as defined in [former]
DR 4-101(A), the use of which would, or would likely, inflict
injury or damage upon the former client in the course of the
subsequent matter.
“(D)  Former Client Conflicts—Permissive Representa-
tion. A lawyer may represent a client in instances otherwise
prohibited by [former] DR 5-105(C) when both the current
client and the former client consent to the representation
after full disclosure.
“(E)  Current Client Conflicts—Prohibition. Except as
provided in [former] DR 5-105(F), a lawyer shall not rep-
resent multiple current clients in any matters when such
representation would result in an actual or likely conflict.
“(F)  Current Client Conflicts—Permissive Representa-
tion. A lawyer may represent multiple current clients in
instances otherwise prohibited by [former] DR 5-105(E)
when such representation would not result in an actual
conflict and when each client consents to the multiple rep-
resentation after full disclosure * * *.”
Former DR 10-101(B) established the requirements for “full
disclosure” under former DR 5-105; it provided, in part:
“(1)  ‘Full disclosure’ means an explanation sufficient
to apprise the recipient of the potential adverse impact on
the recipient, of the matter to which the recipient is asked
to consent.
“(2)  As used in * * * [former] DR 5-105 * * *, ‘full disclo-
sure’ shall also include a recommendation that the recipi-
ent seek independent legal advice to determine if consent
should be given and shall be contemporaneously confirmed
in writing.”
Finally, former DR 1-102(A) provided, in part:
“(A)  It is professional misconduct for a lawyer to:
“* * * * *
“(3)  Engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
Cite as 356 691 (2015)	711

Below, we address each of the trial panel’s conclu-
sions concerning the rules set out above that are at issue on
review. Our discussion is organized in the same chronologi-
cal order in which the underlying events occurred.
III.  FIRST CAUSE—FORMER DR 5-105(E),
CURRENT-CLIENT LIKELY CONFLICTS
AT OUTSET OF SEC INVESTIGATION
A.  Trial Panel Decision, Parties’ Contentions on Review,
and General Discussion
The first cause alleged that the accuseds had vio-
lated former DR 5-105(E) when they agreed to represent
FLIR on the one hand, and Daltry, Samper, Fitzhenry, and
Eagleburger on the other, at the outset of the SEC investi-
gation, with insufficient disclosure and consent concerning
likely conflicts of interest.16 The trial panel concluded that
no likely conflict of interest existed. The Bar challenges
that conclusion on review, arguing in part that the panel
incorrectly applied the “actual conflict” standard under for-
mer DR 5-105(A)(1), instead of the “likely conflict” standard
under former DR 5-105(A)(2). The Bar contends that, under
that latter standard, the interests of FLIR, Daltry, Samper,
Fitzhenry, and Eagleburger were adverse because, although
they all hoped that the SEC would find no misconduct, they
each had an interest in protecting themselves if it did—
including, to the extent necessary, identifying and testifying
against possible wrongdoers in the group. The Bar contin-
ues that the SEC was likely to share its information with
other agencies for use in future criminal, disciplinary, or
other proceedings, in which Fifth Amendment incrimination
implications and professional licenses might have been at
stake. The Bar also asserts that any self-protective step that
an individual client might have taken during the SEC inves-
tigation in turn might have been adverse to FLIR, which
had an interest in setting a cooperative tone with the SEC.
The Bar then argues that the accuseds’ disclosure letters did

16
The complaint alleged additional clients, but we address only those clients
whom the Bar has identified on review. Further, throughout this opinion, we have
addressed only particular current or former clients and particular issues that—
in collective consideration of the complaint allegations, the trial panel’s opinion,
and the parties’ arguments in their briefs—are properly at issue on review.
712 In re Ellis / Rosenbaum

not satisfy the “full disclosure” requirements under former
DR 10-101(B), to ensure informed consent to the joint repre-
sentation, and also that—because they did not send him a
letter—no disclosure at all had been made to Samper.17
The accuseds disagree that FLIR and the identified
individual clients had adverse interests at the outset of the
SEC investigation, and they assert that the trial panel there-
fore correctly determined that no likely conflict of interest
existed. The accuseds point to evidence demonstrating—in
their view—that the Bar’s adversity theories are incorrect
and that, instead, their multiple representation strategy
in the context of the SEC investigation was a common and
widely accepted practice that was both effective and ethical.
The accuseds relatedly argue that, even if any likely conflict
of interest existed, they disclosed all material information
to their clients so as to obtain their informed consent to the
joint representation.
The Bar is correct that its first cause focused on
“likely” current-client conflicts, rather than “actual” con-
flicts, at the outset of the SEC investigation. The Bar is also
correct that the trial panel nonetheless concluded that no
“actual” conflict had existed because the accuseds had no
duty at that point in time to contend for a position on behalf
of one client that they had a duty to oppose on behalf of
another, under former DR 5-105(A)(1). However, the panel

17
The complaints refer in the first cause to alleged conflicts arising only
“[w]hen [the accuseds] undertook to represent” all the clients in the SEC joint
representation and refer in the second cause to further alleged conflicts arising
during the investigation stage, through the course of witness interviews and end-
ing with the Wells phase. The trial panel concluded that the Bar had not proved
the allegations in the first cause, but, in reaching that conclusion, it extensively
addressed facts arising during the SEC investigation up to the Wells phase, not
those in existence at the outset of the investigation. In its brief, the Bar identifies
both the first and second causes as being at issue on review; however, it—like the
panel—primarily treats the first cause as relating to activities during the SEC
investigation up to the Wells phase (with some limited argument about conflicts
at the outset of the representation) and the second cause as concerning the Wells
phase.
Consistently with the amended complaints and the Bar’s identification of
the causes and issues on review, we consider allegations and arguments about
conflicts at the outset of the SEC investigation as part of the first cause, and we
then consider the panel’s determinations relating to ongoing investigation issues
before and during the Wells phase—and the parties’ respective arguments about
those determinations—as part of the second cause.
Cite as 356 691 (2015)	713

also concluded that the interests of FLIR and the individ-
ual clients were not “adverse” or in likely conflict during
the SEC investigation process—amounting to an effective
determination that no such conflict had existed at the outset
of the SEC investigation. We proceed to address the Bar’s
challenge under this cause by determining whether a likely
conflict existed.
Under former DR 5-105(A)(2), a likely conflict exists
when the “objective, personal, business or property interests
of the clients are adverse.” Concerning a multiple client repre-
sentation, the specific question under former DR 5-105(A)(2)
is whether the client interests “are adverse” (emphasis
added) at the time that the lawyer seeks to undertake the
representation, not whether they might be adverse in the
future. See In re Hostetter, 348 Or 574, 594, 238 P3d 13
(2010) (so stating; focus is whether respective interests were
“adverse from the outset,” not whether client injured later as
result of a conflict). Indeed, the fact that a conflict develops
later does not mean that adversity existed at the outset. See
In re Samuels/Weiner, 296 Or 224, 230, 674 P2d 1166 (1983)
(court rejected Bar’s prediction of potential future conflicts
in partnership and reliance on ultimate breakdown of part-
ners’ relationship to support allegations under earlier ver-
sion of former DR 5-105(A)).
Respecting “adverse” interests, this court has noted
under an earlier version of former DR 5-105 that a lawyer’s
independent judgment can be adversely affected when two
or more clients “have differing interests, whether such inter-
ests be conflicting, inconsistent, diverse, or otherwise dis-
cordant.”18 In re Johnson, 300 Or 52, 58 n 4, 707 P2d 573
(1985) (internal quotation marks omitted); see also Webster’s
Third New Int’l Dictionary 31 (unabridged ed 2002) (defin-
ing “adverse,” in part, as “acting against or in a con-
trary direction: OPPOSING * * * : HOSTILE, OPPOSED,
ANTAGONISTIC * * * 2 a : in opposition to one’s interests
: DETRIMENTAL, UNFAVORABLE”). This court has iden-
tified many scenarios involving readily identifiable client
18
Former DR 5-105(B) (1984) provided that “[a] lawyer shall not continue
employment if the exercise of his independent professional judgment in behalf
of a client will be or is likely to be adversely affected by his representation of
another client, except to the extent permitted under DR 5-105(C).”
714 In re Ellis / Rosenbaum

interests that are adverse by their nature, such as debtor-
creditor relationships, Hostetter, 348 Or at 593; spousal and
similar relationships with opposing legal interests, In re
Lawrence, 337 Or 450, 461, 98 P3d 366 (2004) (alleged bat-
terer and victim); In re Cohen, 316 Or 657, 661-62, 853 P2d
286 (1993) (spouses with diverging interests in different
proceedings—criminal mistreatment case for husband,
related juvenile case in which children might be taken from
wife); and criminal coconspirators or codefendants, In re
Jeffery, 321 Or 360, 370-71, 898 P2d 752 (1995); In re O’Neal,
297 Or 258, 260-66, 683 P2d 1352 (1984). In those circum-
stances, the court has explained that the conflicts rules
guard against a lawyer’s impaired judgment or divided loy-
alty arising from differing client interests. See O’Neal, 297
Or at 264 (lawyer who undertakes multiple client represen-
tations involving differing interests must carefully weigh
possibility that the lawyer’s judgment might be impaired or
loyalty divided); In re Porter, 283 Or 517, 521-22, 584 P2d
744 (1978) (to same general effect).
By contrast, this court also has explained that
the interests of multiple clients might be consistent—and
therefore not adverse—at the time that the lawyer seeks to
undertake a new representation. In In re Cobb, 345 Or 106,
190 P3d 1217 (2008), for example, the accused lawyer repre-
sented several investors who were part of investor partner-
ships in a company involved in questionable tax dealings.
The lawyer first represented the investors in “test cases”
against Internal Revenue Service (IRS) personnel and later
represented the investor partnerships in challenging the
disallowance of certain IRS deductions. Id. at 110-11. An
entity associated with the company later filed Chapter 11
bankruptcy, and the investor partnerships retained the
same lawyer to protect their interests—including assets—in
that proceeding. Id. at 111. Unrelated creditors later forced
the entity and the company into Chapter 7 bankruptcy, and
the lawyer represented the debtor company in that proceed-
ing for the sole purpose of raising a jurisdictional defense
that might have resulted in dismissal of the bankruptcy. Id.
at 112. The Bar argued that the lawyer had a current-client
likely conflict of interest when he represented the investor
partnerships in the Chapter 11 proceeding and the company
Cite as 356 691 (2015)	715

in the Chapter 7 proceeding, asserting what the Bar con-
tended were adverse positions. This court disagreed, rea-
soning that the lawyer’s assertions in both proceedings were
consistent with each other.19 Id. at 133 n 18. The court also
explained, in the course of rejecting a related conflicts argu-
ment on the Bar’s part, that the interests of the investor
partnerships and the company were not those of creditor-
debtor at the time in question. Id. at 133.
In sum, our task in determining whether the
accuseds’ clients’ interests were adverse at the outset of the
SEC investigation under former DR 5-105(A)(2) involves
determining from the record whether—at that point in
time—those interests were contrary or in opposition to one
another, or, instead, were consistent or aligned. We now turn
to the record to determine whether the Bar proved by clear
and convincing evidence that the accuseds’ clients’ interests
were adverse at the outset of the SEC investigation.
B.  No Likely Conflicts at Outset of SEC Investigation
Several witnesses testified as to the nature of the
respective clients’ interests at the outset of the multiple rep-
resentation. Ellis, who was experienced in the field, testified
that a public company subject to an SEC investigation has
two principal interests: to move the process along quickly
toward resolution, and to maintain public confidence. The
company’s board has similar interests, plus an additional
interest in assuring itself that current management main-
tains accurate financial statements. Officers—who run the
risk of liability for past conduct—also share the same inter-
ests as the company and have an additional interest in not
being damaged by speculative testimony. Employees have
an interest in avoiding workplace difficulties, such as fear
of retaliation at work or instability of the employer. And, all
witnesses have an interest in avoiding becoming embroiled
in any “process violation” during the investigation, such as
SEC accusations of untruthful testimony, failure to produce
19
According to the court, in the Chapter 11 proceeding, the lawyer had
argued on behalf of the investor partnerships that they had financial means to
maintain the assets and that their continuing payments to the company would
enable the company to meet other obligations. Similarly, in the Chapter 7 pro-
ceeding, the lawyer had taken the position that the investor partnerships’ pay-
ments were made for purposes of preserving the assets. Cobb, 345 Or at 133 n 18.
716 In re Ellis / Rosenbaum

requested documentation, or obstruction of justice. Ellis con-
tinued that all those identified interests are served by encour-
aging truthful, nonspeculative testimony and cooperation
with the investigation. Ellis rejected the notion—advanced
by the Bar—that FLIR had an interest in restricting the
flow of information to the SEC, which would have invited a
process violation accusation and could have breached FLIR’s
fiduciary duties as a public company; instead, FLIR, like the
other clients, had an interest in fully cooperating.
Ellis further testified that individual clients did not
have the same risks, at the outset of this SEC investigation,
that they might have in other litigation contexts. For exam-
ple, under federal law, potential SEC enforcement defen-
dants at that time were not subject to cross-claims for con-
tribution or other proportionate fault sharing arguments.
And, insurance in the SEC investigation context typically
covered defense costs for both the company and the individ-
ual directors and officers, but not settlement costs, so the
clients had no conflicting settlement interests in a common
insurance fund.
Both Ellis and Rosenbaum (also experienced in the
field) explained that an SEC investigation differs from pri-
vate securities litigation in other ways, in that (1) no formal
charges or allegations have been made; (2) the investigation
is factual only—here, to determine if FLIR’s restatements
were due to innocent errors or fraud—and witnesses are
expected only to answer questions to the best of their abil-
ity, with no cross-examination; (3) lawyers serve as counsel
for witnesses to prepare for and attend interviews, but do
not sponsor the witnesses as a lawyer would in trial; and
(4) lawyers do not advocate in any way for any client.
Relatedly, it was not in any client’s interest to project blame
on other clients during the SEC investigation stage. As Ellis
put it, in the context of an investigation concerning account-
ing irregularities, a securities violation either occurred or
did not occur, and no client has an interest in encouraging
the SEC to pursue any particular individual.
Finally, Ellis and Rosenbaum both testified that
each of their clients had an interest in learning as much
as possible about the SEC’s investigation, which the joint
Cite as 356 691 (2015)	717

representation—as arranged at the outset—permitted them
to do. By responding to document requests, attending wit-
ness interviews, and reviewing related documentation, the
accuseds were able to alert each client to particular trans-
actions at issue and witness testimony relevant to their own
interview preparation, so that they in turn could provide more
refreshed, forthright, and honest testimony. The Bar did not
effectively counter any of the above-summarized testimony.
As to the individual clients, Glade and Kaner con-
firmed that the accuseds’ joint representation was advanta-
geous to Samper and that, at the outset of the SEC investi-
gation, Samper’s interests were aligned with—not adverse
to—FLIR’s interests. Glade also agreed that Samper’s pri-
mary interest in testifying was to be truthful with the SEC,
and Kaner agreed that all participants had an interest in
cooperating. Glade did not recall thinking that the accuseds
had any conflict of interest with Samper during the course
of the SEC investigation, and Kaner also never concluded
that any conflict existed.20 Wynne and Fitzhenry similarly
testified that FLIR had no interest during the SEC investi-
gation in projecting blame on Samper or others.
The accuseds also presented the testimony of an
expert witness, Maletta, who was a former SEC lawyer
with extensive experience in securities enforcement and
governmental investigations, and who had authored part
of a leading text that included discussion of ethical issues
involved in SEC joint representations. Maletta testified
generally about accepted and common practices during an
SEC investigation, including a joint representation similar
to that arranged here, which can be very advantageous in
certain circumstances and was the presumptively preferred
approach of many who practiced in the field. Specifically,
Maletta testified that it was common practice for a single
firm to individually represent the company and subpoe-
naed company officers and employees, provided that no
20
In other parts of this opinion, we similarly observe that independent coun-
sel for certain clients, with knowledge of the key facts, did not think that any
conflict of interest existed as various events unfolded. Although another lawyer’s
assessment of the existence of a conflict is of course not dispositive, we find such
assessments here—made by several experienced lawyers—to be a useful compo-
nent for our consideration of the Bar’s alleged rule violations.
718 In re Ellis / Rosenbaum

identifiable conflicts of interest exist and the company sup-
ports the individuals’ positions.21 Maletta explained that
the interests of all such individuals are typically aligned
because they share an interest in ensuring that no enforce-
ment action is brought against anyone in the group. Maletta
testified, similarly to the testimony of the accuseds, that all
individuals involved typically have the same objectives, such
as cooperating, testifying truthfully, and being forthcoming
with the SEC. Maletta added that it is important in the rep-
resentation to prevent projecting blame, which is counter-
productive and not a useful strategy during the investi-
gation stage, when there are no formal defendants, sub-
jects, or targets. Maletta also confirmed the testimony of
the accuseds, Glade, and Kaner that the principal benefit
of joint representation is that each client obtains access to
information that otherwise would not be available because
the SEC has no obligation to share it. To be sure, Maletta
agreed with the Bar that joint representation can present
potential perils for clients, depending on the circumstances,
and that joint representation of a company and its man-
agers and employees can involve tensions at the outset—
particularly if intentional wrongdoing appears to have
occurred. As noted, however, Maletta also generally testified
about the advantages of joint representation and that the
company’s and represented individuals’ interests frequently
are aligned at the outset and during the investigation phase
in the manner that he described.22
21
Maletta contrasted the type of investigation at issue here—in which,
he explained, the interests of the company and individual clients tend to be
aligned—with an investigation that by its nature would typically involve inten-
tional wrongdoing by one or more persons, such as one involving insider trading,
embezzlement, or obstruction of justice.
22
In addition to Maletta’s general testimony about accepted and common
practices during an SEC investigation, the accuseds sought to introduce addi-
tional testimony from Maletta to the effect that the joint representation in this
case was consistent with general practice and that FLIR’s and the individual
clients’ interests had been aligned at the outset of the SEC investigation. The
Bar objected, and the trial panel ruled that Maletta could testify only in the
abstract as to SEC defense work generally, relying on In re Leonard, 308 Or 560,
570, 784 P2d 95 (1989). The accuseds filed an offer of proof containing Maletta’s
opinions on case-specific issues and contend on review that the panel’s ruling in
that regard was incorrect.
In light of our ultimate conclusion, after reviewing the evidence in the record
that the trial panel admitted, that the Bar did not prove by clear and convincing
Cite as 356 691 (2015)	719

The testimony summarized above comprises the
essential evidence in the record concerning the propriety of
the accuseds’ joint representation at the outset of the SEC
investigation. The Bar presented no contrary testimony—
expert or otherwise—detracting from the evidence showing
that joint representation was a common practice in SEC
investigations of this kind, that the clients’ interests at the
outset of such a representation tend to be aligned, and that
the joint representation in the context of the SEC’s investi-
gation here was appropriate under the circumstances.
Further, although the Bar raises several arguments
purporting to show why the accuseds’ clients’ interests were
adverse, those arguments effectively focus on the potential
for adversity to arise; they do not point to evidence in the
record showing that the clients’ interests were adverse at
the outset. For example, the Bar argues that the interests
of FLIR, Daltry, Samper, Fitzhenry, and Eagleburger were
adverse because they each had an interest in protecting
themselves if the SEC eventually found misconduct to have
occurred, including, to the extent necessary, identifying and
testifying against each other. As summarized earlier, how-
ever, the evidence showed that no client had any interest at
the outset of the SEC investigation in projecting blame on
others. The Bar also did not prove that the SEC was likely
to share its information in this case with other agencies for
use in future criminal, disciplinary, or other proceedings:
Although the Bar did show that the lawyers and witnesses
knew that the SEC was permitted to share its information
with other agencies, none of the involved lawyers had any
reasonable expectation that the DOJ would involve itself in
this particular investigation. The record further shows that,
at that point in time, the DOJ typically did not have a sig-
nificant level of involvement in ongoing SEC investigations,
unless it chose to actively step in and stay the SEC proceed-
ing. Finally, the Bar did not present evidence to support its
argument that any particular client’s hypothetical efforts to
take self-protective steps during the SEC investigation in
turn might have been adverse to FLIR.

evidence the violations alleged in this cause, it is not necessary to address the
accuseds’ contention on review that the panel erred in rejecting Maletta’s case-
specific testimony.
720 In re Ellis / Rosenbaum

We conclude that the Bar did not prove by clear
and convincing evidence that the interests of FLIR and the
accuseds’ individual clients Daltry, Samper, Fitzhenry, and
Eagleburger were adverse at the outset of the SEC investiga-
tion and therefore did not prove the existence of any current-
client likely conflict of interest at that time under former DR
5-105(A)(2) and former DR 5-105(E). Because we conclude
that the Bar did not prove the existence of such a conflict, we
need not decide whether the accuseds made sufficient dis-
closures so as to obtain consent to the joint representation
under former DR 5-105(F) and former DR 10-101(B).23
IV.  SECOND CAUSE—FORMER DR 5-105(E),
CURRENT-CLIENT ACTUAL AND LIKELY
CONFLICTS DURING SEC INVESTIGATION,
INCLUDING WELLS PHASE
A.  Trial Panel Decision and Parties’ Contentions on Review
The second cause alleged that the accuseds had
violated former DR 5-105(E) when they continued to repre-
sent FLIR on the one hand, and Daltry, Samper, Fitzhenry,
and Eagleburger on the other, during the SEC investiga-
tion, once it became apparent that actual or likely conflicts
had arisen. The Bar’s allegations under this cause gener-
ally refer to SEC witness interviews and also to the Wells
phase. The trial panel rejected several Bar theories under
this cause and specifically disagreed with the Bar that
any actual conflict of interest arose before the Wells phase,
which the Bar challenges on review. The panel did, however,
determine that the Bar proved its allegations of likely con-
flicts of interest and insufficient disclosure under this cause
in two respects.
First, the trial panel determined that FLIR’s state-
ment in its Wells Submission that referred to the SEC “pur-
suing fraud claims against one or more individuals who may
have been responsible” for the accounting errors, “to the
extent that wrong-doing may have occurred,” established
that FLIR’s interest in the SEC representation was adverse

23
We generally note, however, that a lawyer taking on a similar joint repre-
sentation should—in the exercise of caution—consider following applicable full
disclosure rules as to the key participants.
Cite as 356 691 (2015)	721

to those of Samper, Fitzhenry, and Eagleburger. In the panel’s
view, that statement told the SEC that FLIR had concluded
that wrongdoing had occurred and that fraud claims per-
haps were appropriate as to those individual clients—who
all ultimately had received Wells Notices and who each had
an interest in having FLIR refrain from acknowledging that
any wrongdoing had occurred. Because the accuseds did not
make full disclosure to or obtain consent from those clients
as to continuing the joint representation, the panel con-
cluded that the accuseds had violated former DR 5-105(E).
The accuseds challenge that conclusion on review.
Second, the trial panel determined that Rosenbaum
had violated former DR 5-105(E) when she called the SEC
on October 3, 2002, to inquire about the lack of reference to
the Swedish Drop Shipment in the SEC complaint against
Stringer. According to the panel, that phone call—made in
behalf of FLIR and Wynne—had been adverse to Samper’s
interests. The panel analyzed the phone call under the Bar’s
sixth cause, which more generally had alleged a current-
client conflict between Wynne and Samper (and others), and
did not specifically mention the phone call. On review, the
Bar contends that Rosenbaum’s October 3, 2002, phone call
to the SEC fell within its general allegations under the sec-
ond cause and that the panel’s conclusion was correct under
that cause. The accuseds, for their part, challenge on review
any determination that a rule violation occurred based on
Rosenbaum’s phone call to the SEC.
We address the parties’ arguments under this cause
in three parts: the SEC investigation leading up to the Wells
phase; the Wells phase; and Rosenbaum’s October 3, 2002,
phone call to the SEC.
B.  No Current-Client Likely Conflicts During Pre-Wells Phase
In disagreeing with the trial panel’s conclusion that
the Bar did not prove any likely conflict of interest during
the SEC investigation up to the Wells phase, the Bar argues
that (1) as witnesses provided information to the SEC, likely
conflicts of interest under former DR 5-105(A)(2) arose
between FLIR and the individual clients; (2) during that
time, any self-protective step that any individual client took
722 In re Ellis / Rosenbaum

was arguably adverse to other clients and to FLIR, which
had an interest in setting a cooperative tone with the SEC;
and (3) as the investigation progressed, FLIR’s interest in
remediation grew stronger, which in turn was adverse to
certain individual clients’ interests in remaining employed
and in preserving favorable professional reputations. In
response, the accuseds point to evidence in the record that
they assert supports the panel’s conclusion that no likely
conflicts arose in this time frame.
As with our earlier discussion about alleged con-
flicts at the outset of the SEC investigation, the Bar bears
the burden of proving by clear and convincing evidence
that the accuseds’ clients’ “objective personal, business or
property interests [were] adverse” at the time in question.
Former DR 5-105(A)(2). Also as part of our analysis, we con-
sider former DR 5-105(B), which provided that, “[f]or pur-
poses of determining a lawyer’s knowledge of the existence
of a conflict of interest, all facts which the lawyer knew, or
by the exercise of reasonable care should have known, will
be attributed to the lawyer.” Again, on de novo review of the
record, we conclude that the Bar did not prove the existence
of any likely conflict of interest up to the Wells phase. We
address the Bar’s arguments in turn, below.
Regarding witness testimony, the Bar in particular
cites SEC interviews of Fitzhenry, Wynne, Muessle (FLIR’s
then-current controller), and Chambers (the employee who
testified about document destruction), and argues that those
witnesses offered testimony that was adverse to Samper’s
interests. We consider four aspects of that testimony and,
as did the trial panel, conclude that the Bar did not show
that the testimony demonstrated the existence of any likely
conflict of interest.24

24
We focus on the four topic areas addressed in greatest detail at the trial
panel hearing. In the facts section of its brief, the Bar generally states that sev-
eral clients commented unfavorably on the credibility of others during their SEC
interviews and lists isolated factual assertions from several witnesses’ inter-
views, including witnesses other than the four mentioned in the text above. In
the argument section of its brief, however, the Bar states only very generally that
the accuseds heard all those witnesses offer SEC testimony that was adverse to
Samper, with no elaboration. The record in this case—which includes lengthy
excerpts from several SEC transcripts—is almost 12,800 pages long. We decline
to examine each isolated, separate factual statement set out in the Bar’s brief
Cite as 356 691 (2015)	723

As to Fitzhenry, the SEC asked him about the 1999
management representation letter that he and Samper
(and others) had signed, which had served to confirm the
accuracy of certain 1999 FLIR quarterly results. The letter
had confirmed that FLIR had recognized certain revenue
properly, but that representation later was determined to
be incorrect. Fitzhenry’s practice had been to sign such let-
ters, based on representations from Samper or the former
FLIR controller that the accounting representations made
therein were true. Fitzhenry told the SEC in at least one
interview that he did not recall having any particular con-
versation with Samper about the letter at issue—concern-
ing the specific accounting-related content in the letter or
otherwise—other than Samper asking him to sign it. In
response to questions about conversations with Samper
about the letter, Fitzhenry stated in that interview that
“the discussions that I would have had were more general
in nature, * * * representations from either [Samper] or [the
former controller], * * * someone who was [also] a signatory
of the letter, that the representations were true. * * * [B]ased
on those representations, generally, I signed the letter as
well.” For his part, Samper did not recall any particular con-
versation with Fitzhenry about the letter.25 In the Bar’s view,
Fitzhenry’s SEC testimony showed an adversity of interest
between Fitzhenry and Samper, based on Fitzhenry’s reli-
ance on Samper’s general assurance that the contents of the
letter had been accurate.
We disagree. First, the record shows that Samper
reasonably would have expected Fitzhenry to rely on his
assurances about accounting representations in the letter
because Samper, as CFO, accepted responsibility for FLIR’s
accounting. Nothing about Fitzhenry’s stated reliance on

without further explication from the Bar, such as providing context or a pur-
ported link between each statement and the existence of a current-client likely
conflict.
25
Fitzhenry later testified at his own trial panel matter, as well as to the
trial panel below, that he recalled generally asking Samper if the contents of the
letter were accurate, and Samper indicated that they were. Fitzhenry’s SEC tes-
timony in the record that the Bar cites does not include that specific recollection
on his part. And, in any event, Fitzhenry emphasized in both his Bar matter and
in this proceeding that Samper had a different recollection, in that he did not
recall any particular conversation about the contents of the letter.
724 In re Ellis / Rosenbaum

Samper established an adversity of interests between the
two clients. Second, we do not read Fitzhenry’s testimony—
as does the Bar—to have stated that he recalled having had
a specific conversation with Samper about the 1999 manage-
ment representation letter in which Samper assured him as
to its accuracy; instead, Fitzhenry only generally described
the process that typically occurred when he was presented
with such letters. And, even if we read Fitzhenry’s testimony
to mean that he had asked Samper for general accounting
assurances relating to that particular letter, when Samper
did not recall a similar conversation, such a scenario does
not prove by clear and convincing evidence that an adver-
sity of interest existed. The record shows—through tes-
timony from both the accuseds and their expert witness,
Maletta—that differing recollections are common during
the SEC interview phase. It also shows that Fitzhenry and
Samper shared the objective of providing truthful testimony
about their respective recollections. Finally, it shows that
the accuseds sent a transcript of Fitzhenry’s SEC testimony
to Glade and Kaner, and they did not think that Fitzhenry’s
testimony demonstrated any conflict with Samper.26 In short,
Fitzhenry’s SEC testimony did not establish by clear and
convincing evidence that a likely conflict of interest existed
between either FLIR or Fitzhenry and Samper during the
SEC interview phase.
As to Wynne, the Bar first focuses on Wynne’s SEC
testimony that FLIR’s new independent auditor had con-
cluded that a high percentage of FLIR’s accounting entries
had been erroneous and had observed that, in Wynne’s
words, “it’s hard to imagine that you could get more trans-
actions wrong than you got right.” The Bar reads that tes-
timony as an inference by the auditor that some intentional
wrongdoing had occurred, perhaps on Samper’s part, but
Wynne denied in that same interview that the auditor ever
had communicated to FLIR any conclusion about inten-
tional wrongdoing. And, when viewed in context, Wynne’s
testimony about the high percentage of errors related to
26
Fitzhenry testified in October 2000, and the transcript was sent to Kaner
in April 2001. Both Glade and Kaner generally testified that they did not think,
through the entry of the SEC settlements in September 2002, that any conflict
existed between any of the accuseds’ clients and Samper.
Cite as 356 691 (2015)	725

Stringer, not Samper; he specifically identified the auditor’s
assessment as a contributing factor in FLIR’s decision to
ask Stringer to resign.27 That testimony therefore does not
provide a basis for concluding by clear and convincing evi-
dence that a likely conflict of interest existed between FLIR
and Samper during the SEC interview phase.
The Bar also emphasizes Wynne’s trial panel testi-
mony about his ultimate conclusion—while the SEC inves-
tigation was ongoing—that Samper’s actions had amounted
to securities fraud. Specifically, by spring 2001, Wynne had
concluded that Samper had made entries and submitted
financial statements that contained figures manipulated as
a result of fraud; that is, that Samper had filed financial
statements with the SEC based on entries that Samper by his
own admission either knew to be inaccurate or did not know
their accuracy. In Wynne’s view, that conduct amounted to
securities fraud as legally defined, even though Wynne had
not necessarily concluded that Samper himself had manip-
ulated any figures. The record shows that Wynne offered
that testimony carefully, so as not to assert any belief on his
part that Samper had engaged in intentional wrongdoing.28
And, in any event, neither accused learned until several
years later that Wynne had reached that general conclusion.
Nothing about that testimony from Wynne demonstrated
that FLIR had an interest adverse to Samper’s of which
either accused reasonably would or should have been aware
during the interview phase of the SEC investigation. See
former DR 5-105(B) (for purposes of determining lawyer’s
knowledge of existence of conflict of interest, all facts that
lawyer knew or by exercise of reasonable care should have
known are attributed to lawyer).
27
We further note that, the day after Wynne’s SEC interview, the accuseds
had a conversation with Glade in which Ellis generally described Wynne’s testi-
mony, including other testimony that the FLIR board’s concerns about Samper
had involved competence, not any integrity or honesty problem.
28
The Bar also points to Wynne’s trial panel testimony as to his belief that
Samper had “manufactured” the $4.6 million figure reflected by the Swedish
Drop Shipment. Wynne later elaborated on that comment, however, testifying to
his understanding that Samper’s figures had originated with Stringer and that
he had assessed Samper as having engaged in securities fraud based on Samper’s
entry of Stringer’s figures into FLIR’s books, made while in his capacity as CFO,
when he might not have known with certainty whether an underlying transac-
tion had occurred or whether sufficient documentation supported such an entry.
726 In re Ellis / Rosenbaum

As to Muessle, the Bar states that he identified in
an evaluation for FLIR and FLIR’s new independent auditor
questionable transactions that implicated Samper in wrong-
doing, which FLIR—through the accuseds—sent on to the
SEC. Muessle testified at the trial panel hearing about
his evaluation, which had explained to FLIR’s auditor why
certain transactions had been restated due to lack of sup-
porting documentation and also discussed other problem-
atic transaction reviews. None of Muessle’s evaluation doc-
umentation in the record mentioned Samper in a negative
light, and none of Muessle’s panel testimony suggests that
he ever thought that Samper had engaged in intentional
wrongdoing. Notably, also during the SEC interview phase,
Rosenbaum provided similar documentation on Muessle’s
transaction reviews to Glade and Kaner; as noted above,
Glade and Kaner never concluded during the course of the
SEC investigation—based on information that they received
from the accuseds on an ongoing basis—that Samper’s
interests were adverse to FLIR’s. The Muessle testimony
and evaluation documentation did not establish by clear and
convincing evidence that any adverse interest arose between
FLIR and Samper during the SEC interview phase.
As to Chambers, the Bar focuses on her testimony
about document destruction and other questionable repre-
sentations on Samper’s part about shipped inventory, which
the Bar views as having implicated Samper in wrongdo-
ing. The record shows, however, that Chambers was a low-
er-level employee without sufficient understanding of all
the detail surrounding FLIR’s shipping arrangements and
accounting processes, and so her testimony did not demon-
strate adversity with Samper in the manner that the Bar
contends. Indeed, Kaner testified that she and Glade had
discussed the possibility that Chambers’s testimony demon-
strated a conflict, but they agreed that a conflict had not
arisen and that the interests of FLIR and Samper remained
aligned. In that regard, we agree with the accuseds that
Chambers’s testimony illustrated a benefit of the joint repre-
sentation: Because Rosenbaum represented both Chambers
and Samper for purposes of the SEC interview phase, she
was present for Chambers’s interview and then was able
to confer with Glade and Samper, and adequately prepare
Cite as 356 691 (2015)	727

Samper, so as to provide the SEC with explanations about
issues arising from Chambers’s testimony—particularly
concerning circumstances about which Chambers had been
unaware. We disagree with the Bar that Chambers’s testi-
mony showed an adverse interest between FLIR and Samper
during the SEC interview phase.
The Bar next contends that self-protective actions
taken by individual clients during the SEC interview phase
showed that those clients had interests adverse to FLIR’s.
The Bar cites two examples, both of which appear from the
record to have been joint tactical recommendations made
to Samper by Glade, Kaner, and the accuseds: (1) Samper
participating in the SEC interviews instead of asserting
his Fifth Amendment privilege against self-incrimination;
and (2) Samper testifying early in the proceedings, to clar-
ify some SEC factual misunderstandings and to further
the joint strategy of showing that only innocent errors, not
intentional wrongdoing, had occurred.
In the Bar’s view, the lawyers’ Fifth Amendment
waiver advice showed that Samper had individual consid-
erations that were adverse to FLIR’s. The record estab-
lishes, however, that the four lawyers agreed that it was
in Samper’s best interest to cooperate with SEC interview
requests and that none of the lawyers reasonably could have
anticipated, during the SEC interview phase, that a DOJ
investigation was forthcoming. As to the lawyers’ early tes-
timony advice, the Bar asserts that that decision harmed
Samper in the ensuing DOJ investigation because the SEC
viewed him critically before all documentation was in order,
later giving the impression that he had not been honest. The
record does show that, in the end, the SEC determined that
Samper had been disingenuous at best and had been trying
to either mislead the SEC or distract from the full truth of
what had occurred. During the SEC interview phase, how-
ever, Glade and Kaner continued to think that cooperation
and forthcoming testimony was in Samper’s best interests,
and both had concurred in the decision to have Samper tes-
tify early.29 We disagree that those two tactical decisions
29
The Bar cites a letter that Kaner wrote to the accuseds several years later,
noting that Samper’s early testimony—intended to comply with FLIR’s efforts to
cooperate with the SEC—had put him on the spot before the documentation was
728 In re Ellis / Rosenbaum

showed an adversity of interests between Samper and FLIR,
and the Bar points to no other evidence of individual cli-
ents’ self-protective steps that might have showed such an
adversity.30
The Bar also argues that FLIR’s interest in adopt-
ing a remediation strategy grew as the pre-Wells investiga-
tion phase progressed, which was adverse to the individual
clients’ interests in remaining employed and preserving a
sound professional reputation.31 The Bar further asserts
that FLIR positioned itself during the investigation to seek
favorable treatment at the expense of individual clients
Daltry, Samper, and Eagleburger. The record shows, how-
ever, that FLIR’s general strategy during the SEC inter-
view phase remained the same all along—that is, to coop-
erate; to not admit that either FLIR or any of the accuseds’
individual clients had engaged in fraud; and, eventually, to
focus the SEC on FLIR’s remediation improvements since
the 1998 and 1999 accounting errors. Although, again, the
potential for adversity existed, the record does not show that
the clients’ interests were adverse during the SEC interview
phase and therefore does not establish that any current-
client likely conflict of interest existed.

complete and gave the impression that he had not acted honestly, which may have
contributed to his criminal indictment. The question under former DR 5-105(A)(2),
however, is whether the accused lawyer reasonably knew that the clients’ inter-
ests were adverse at the time in question. Kaner’s hindsight observation, follow-
ing several years’ worth of additional developments including a criminal prose-
cution, does not amount to clear and convincing evidence that the accuseds knew
that any actual adversity existed during the SEC interview phase. At that time,
the possibility continued that FLIR’s and Samper’s interests might diverge, but,
as explained above, none of Samper’s four lawyers ever concluded during that
period in time that any adversity in fact had arisen, and nothing in the record
counters that assessment.
30
The Bar cites Am. Bar Ass’n, Section of Bus. Law, The Securities
Enforcement Manual 477 (1997), for the proposition that company officers, direc-
tors, and employees involved in an SEC investigation have an opportunity to
limit individual exposure if they cooperate with the SEC. However, the Bar
cites to no evidence in the record—other than that discussed above—showing
that any of the accuseds’ clients in this case took any self-protective step that
established by clear and convincing evidence that their interests were adverse to
FLIR’s.
31
The Bar again cites The Securities Enforcement Manual at 477: “Corpo-
rations may avoid or lessen liability by taking prompt action to replace wrong-
doers and showing that the wrong was a matter of individual not corporate fault.
These possibilities create considerable room for conflicts to develop.”
Cite as 356 691 (2015)	729

C.  No Current-Client Actual or Likely Conflicts of Interest
During Wells Phase
1.  General Discussion
The trial panel concluded that a single statement in
FLIR’s Wells Submission—that FLIR understood that the
SEC was pursuing fraud claims against one or more people
responsible for its accounting issues—established a current-
client likely conflict of interest between FLIR and Samper,
Fitzhenry, and Eagleburger, all of whom received Wells
Notices, and that the accuseds did not disclose that conflict.
On review, the accuseds challenge that conclusion, arguing
that FLIR’s interests were not adverse to those three indi-
vidual clients during the Wells phase. The Bar, for its part,
contends that various parts of FLIR’s Wells Submission
showed that current-client actual conflicts of interest arose
during the Wells phase between FLIR and the identified cli-
ents, and those actual conflicts could not be waived, even
following full disclosure, under former DR 5-105(F).32
The following facts are important to fully address
the parties’ arguments. The SEC issued Wells Notices to
four of the accuseds’ clients—FLIR, Samper, Fitzhenry,
and Eagleburger—and also to Stringer and Martin (and
others). Upon receipt of Samper’s Wells Notice, Glade and
Kaner transitioned to lead counsel during the Wells phase
and ensuing negotiations, and the accuseds transitioned
to a supporting role. Upon receipt of Fitzhenry’s and, later,
Eagleburger’s Wells Notices,33 Ellis conferred with each of
those clients, told them that they immediately needed to
retain independent counsel, and then offered to serve as
supporting co-counsel as needed—ultimately providing
some support for both clients based on requests from their
individual lawyers. As for FLIR, the accuseds (mostly Ellis),
Wynne, and Fitzhenry worked on FLIR’s Wells Submission,

32
We note that the trial panel specifically found that the identified statement
in FLIR’s Wells Submission amounted to a conflict of interest between FLIR and
several of the accuseds’ individual clients. The Bar clarifies—and we agree—that
the question is not whether that statement itself constituted a conflict, but, rather,
whether that statement provided persuasive evidence that a conflict existed.
33
Eagleburger’s Wells Notice was not received until after FLIR had filed its
Wells Submission.
730 In re Ellis / Rosenbaum

which FLIR filed with the SEC without first sending to the
accuseds’ other clients for review.

FLIR’s Wells Submission focused on FLIR’s remedi-
ation efforts and stated that it had “removed” those “senior
managers who were responsible for the accounting errors
and the management problems, including the President and
CEO, Stringer.” It next referred by position (not by name)
to other former management personnel no longer with the
company, including Daltry and Samper (both identified as
having resigned earlier), and Eagleburger and Martin (both
identified as having been terminated). It continued that,
“[h]aving satisfied itself that it had identified and removed
all those in senior management who were responsible for
the Company’s troubles, the Board immediately turned its
attention to assisting remaining management in rescuing
and then improving the Company.” FLIR’s Wells Submission
later stated, under “Remediation,” that “[t]he individuals
who were responsible for the accounting errors have been
terminated, and the Company is under new executive and
financial management.” In its final, “Offer of Settlement”
section, FLIR’s Wells Submission stated that, “to the extent
wrong-doing may have occurred, we understand that the
SEC is pursuing fraud claims against one or more individu-
als who may have been responsible,” inferentially intended
to refer to Stringer and Martin. Throughout, FLIR’s Wells
Submission described the 1998 and 1999 accounting issues
as “errors” or “problems,” not “fraud,” which carried a criti-
cal distinction in the securities context.

The record shows that, in drafting and filing FLIR’s
Wells Submission, the accuseds and FLIR did not seek to cast
a negative light on either Samper or Eagleburger, and FLIR’s
Wells Submission objectively did not expressly take any par-
ticular position or make any characterization about either of
them, other than noting the former CFO’s (Samper’s) coop-
eration with the SEC investigation. It included one express
favorable reference to Fitzhenry, in an effort to confirm his
positive participation as part of the new management team.
At the time that FLIR prepared its Wells submission, the
accuseds had concluded that only Stringer and Martin had
acted fraudulently. Also at that time, Eagleburger had not
Cite as 356 691 (2015)	731

yet received a Wells Notice. And, although Glade initially
thought that FLIR’s Wells Submission reflected poorly on
Samper, he and Kaner continued to communicate regularly
with the accuseds as Samper’s co-counsel and also continued
to think that FLIR’s and Samper’s interests were aligned
for purposes of the SEC proceeding. During the Wells phase,
the accuseds and the other individual lawyers reasonably—
but, as it turns out, incorrectly—anticipated that no crimi-
nal investigation would occur.
2.  No Current-Client Actual Conflict
The Bar first contends that the statement in FLIR’s
Wells Submission about the SEC pursuing fraud claims
against those responsible for the accounting issues—
particularly when considered with other components of
FLIR’s Wells Submission discussed above—demonstrated
an actual, nonwaivable conflict of interest under former DR
5-105(A)(1) between FLIR and the accuseds’ individual clients
Daltry, Samper, and Eagleburger. See former DR 5-105(F)
(only current-client likely conflicts can be waived by client
consent after full disclosure). The Bar thinks it significant
that, when the SEC sent the individual Wells Notices, the
accuseds learned who the SEC considered to be wrongdoers,
giving weight to the argument that FLIR itself should not
be punished. At that point, the Bar continues, the accuseds’
duty to FLIR to admit misconduct by Daltry, Samper, and
also Eagleburger (who received a Wells Notice later) became
irreconcilable with their duty to refrain from accusing those
three individual clients of wrongdoing. Nonetheless, the
accuseds then prepared and filed FLIR’s Wells Submission,
which—in the Bar’s view—inferentially referred to Daltry,
Samper, and Eagleburger as wrongdoers.34
Former DR 5-105(A)(1) defines an actual conflict for
purposes of former DR 5-105(E) as a scenario in which a

34
The Bar also contends on review that an actual conflict of interest existed
when the accuseds negotiated FLIR’s SEC settlement, which resulted in a judg-
ment that included—without admitting or denying—a finding of fraud by prior
management. However, the Bar’s allegations in the second cause end with the
filing of FLIR’s Wells Submission and do not mention FLIR’s settlement negotia-
tions, and no other allegation refers to FLIR’s settlement negotiations. We there-
fore do not discuss any Bar argument relating to those negotiations or the final
SEC judgment against FLIR.
732 In re Ellis / Rosenbaum

lawyer “has a duty to contend for something on behalf of
one client that the lawyer has a duty to oppose on behalf
of another client.” Similarly to our earlier discussion about
likely conflicts of interest, such conflicting obligations often
are readily apparent from the nature of the representations
and client interests involved. See In re Bristow, 301 Or 194,
204, 721 P2d 437 (1986) (actual conflict of interest when
lawyer represented one client in action to enforce franchise
agreement while simultaneously representing other client
in action seeking to hold same agreement invalid; citing
cases for same proposition). The court also has explained,
however, that the clients’ underlying objective interests at
the time in question determine the nature of any obligation
on the lawyer’s part to contend for or oppose a particular
legal position on each client’s behalf. See Cobb, 345 Or at 133
(lawyer represented both investor partnerships and entity
related to company in which they had invested in complex
bankruptcy proceedings; at time in question, investor part-
nerships not necessarily entity’s creditors, and all parties
shared goal of dismissal; no actual conflict); Cohen, 316 Or
at 662 (whether actual conflict exists depends on clients’
objective interests).
Here, the record does not establish the existence of
conflicting duties relating to the accuseds’ representation
and protection of their respective clients’ objective inter-
ests during the Wells phase. The fact that Wells Notices
had issued and the clients then considered and developed
responses to them did not, standing alone, mean that the
accuseds had a duty to contend for a particular position on
FLIR’s behalf that they had a duty to oppose on behalf of
Daltry, Samper, or Eagleburger. Indeed, the record shows
that FLIR would have been responsible for fraud committed
by its officers, managers, and employees, in the context of
the SEC’s investigation.35
As to FLIR’s particular Wells strategy, the record
shows that FLIR had an objective interest in convincing
the SEC of the sincerity and significance of its remediation
35
As noted earlier, see 356 Or at ___ n 9, the findings of fraud in the SEC’s
ultimate judgment against FLIR—based on various individual personnel
actions—resulted in FLIR losing its safe harbor protections under federal securi-
ties law.
Cite as 356 691 (2015)	733

efforts, including its transition to new management. Nothing
about that interest obligated the accuseds to assert on FLIR’s
behalf a position that they were obligated to oppose in rep-
resenting the interests of Daltry, Samper, or Eagleburger—
such as, as the Bar contends, asserting that one or more of
those clients had engaged in intentional wrongdoing. And,
although FLIR’s new management did not include Daltry,
Samper, or Eagleburger, the accuseds were not obligated on
behalf of those clients to oppose FLIR’s focus on its remedi-
ation strategy. Indeed, expert testimony in the record estab-
lished that a remediation defense, not unusual in an SEC
proceeding of this kind, focuses on the future as opposed
to any action that occurred in the past. And finally, none of
the lawyers involved—including the independent lawyers—
thought that a conflict existed; as to Samper specifically,
Glade continued to think that no conflict existed even after
he had reviewed and considered FLIR’s Wells Submission.
The trial panel correctly determined that no actual conflict
of interest existed between FLIR and the accuseds’ indi-
vidual clients Daltry, Samper, and Eagleburger during the
Wells phase.
3.  No Current-Client Likely Conflict
Next, the accuseds contend that the trial panel erred
in concluding that the statement in FLIR’s Wells Submission
about pursuit of fraud claims against responsible individ-
uals established an adversity of interests, and therefore a
likely conflict, between FLIR and individual clients Samper,
Fitzhenry, and Eagleburger. The accuseds specifically argue
that that statement did not suggest or imply that those indi-
vidual clients had committed fraud or encouraged the SEC
to act against any client; instead, FLIR’s Wells Submission
identified only Stringer and, inferentially, Martin, as indi-
viduals who had been “removed” from employment and
(again, inferentially) were presently the subject of SEC fraud
claims. Otherwise, FLIR framed its response in light of
remediation, which accused no client of earlier wrongdoing.
The accuseds also emphasize that FLIR’s Wells Submission
labeled FLIR’s 1998 and 1999 accounting issues as “errors”
and “problems”—words that objectively and understandably
did not admit, indicate, or imply fraud on the part of anyone
734 In re Ellis / Rosenbaum

at FLIR. The Bar, as noted (and rejected) above, responds
by contending that FLIR’s Wells Submission showed an
actual conflict of interest between FLIR on the one hand,
and Samper and Eagleburger on the other. Here, we con-
sider the Bar’s underlying arguments about an actual con-
flict of interest to determine whether the Bar proved a likely
conflict of interest as to the three clients that the panel iden-
tified (Samper, Fitzhenry, and Eagleburger).
As already explained, a likely conflict of interest
existed if the “objective personal, business or property
interests” of FLIR and the accuseds’ individual clients “[we]
re adverse,” former DR 5-105(A)(2)—that is, if their objec-
tive interests were contrary or in opposition to one another
at the time in question. This court has explained that the
representation of multiple clients embroiled in the same
action often gives rise to likely (and sometimes actual) con-
flicts, due to the clients’ adversity of interests. In the crim-
inal context, for example, such an arrangement typically
results in an actual or likely conflict, due to the potential
interest of one client in obtaining a favorable outcome in
exchange for testifying or offering evidence against another
client. Jeffery, 321 Or at 370-71; see also id. at 372-73 (state-
ments to police by one client that implicated another cli-
ent amounted to actual or likely conflict); O’Neal, 297 Or
at 260-66 (likely conflict when representing criminal code-
fendants, even where lawyer limited representation to
negotiating pleas). Adverse interests of course can arise in
other contexts, as well. See In re Barber, 322 Or 194, 200,
904 P2d 620 (1995) (under earlier version of former DR
5-105, likely conflict when lawyer represented two parties
injured in same motor vehicle accident, where insurance
proceeds insufficient to cover injuries of both). In determin-
ing whether the Bar proved that a likely conflict existed at
the time in question, we must identify, based on evidence
in the record, the objective interests involved. See Cohen,
316 Or at 661-62 (in determining that husband and wife
had adverse interests in husband’s criminal mistreatment
proceeding and wife’s pending juvenile proceeding, court
identified objective personal interests of each at the time in
question, notwithstanding earlier client declarations that
they shared a common goal).
Cite as 356 691 (2015)	735

As noted earlier, the record shows that FLIR’s objec-
tive interest during the Wells phase was to persuade the SEC
that, from a forward-looking perspective based on multiple
changes that had been made, FLIR should not be subject
to any SEC enforcement action. FLIR’s actions in crafting
its Wells Submission advanced that interest; specifically, it
sought to frame the accounting events in a neutral manner
and then to focus the SEC on its remediation efforts—such
as new management, a larger, professional accounting staff,
a new independent auditor, and clean audits following the
years in question. By contrast, FLIR did not have any objec-
tive interest in focusing on past liability or engaging the
SEC in any factual argument about events underlying the
1998 and 1999 accounting issues; the record shows that it
would have been counterproductive during the Wells phase
for FLIR to argue about those events. Additionally, as noted
earlier, FLIR had no interest in seeing any officer, manager,
or employee accused of fraud, for which FLIR ultimately
would have been responsible.
Like FLIR, clients Samper, Fitzhenry, and
Eagleburger each shared an objective interest during the
Wells phase in mitigating against a negative individual out-
come from the SEC proceedings, including an interest in
avoiding ancillary and collateral consequences that might
apply to them as individuals, but not to the company. For
example, in addition to a separate SEC enforcement action,
Samper was potentially subject to disgorgement penalties,
and Fitzhenry was potentially subject to a sanction that
would have prevented him from practicing before the SEC.36
Also, as part of their individual defenses, the clients—like
FLIR—had an interest in convincing the SEC that they had
not engaged in fraud. As the Bar argues (and the accuseds
do not disagree), those three clients also shared a general
interest in not having FLIR accuse them of wrongdoing.
We conclude that the Bar did not prove by clear and
convincing evidence that FLIR’s interests were adverse to
those of Samper, Fitzhenry, or Eagleburger during the Wells
phase. As explained, all the clients shared an interest in
36
In that regard, we note that concerns that might have arisen in the civil
action context—such as joint and several liability, cross-claims, or competing
interests in insurance proceeds—did not apply in the SEC context.
736 In re Ellis / Rosenbaum

mitigating against a negative outcome in the SEC investiga-
tion. The fact that different consequences could flow from neg-
ative outcomes—for example, to FLIR as a company, to Samper
as a former officer, or to Fitzhenry as General Counsel—does
not mean that the respective clients’ interests were neces-
sarily adverse to each other. And, as discussed above, the
record shows that none of the lawyers or individuals involved
anticipated, during the Wells phase, that any DOJ investiga-
tion—which certainly carried at least the potential for future
adverse conflicts of interest—might be forthcoming. See for-
mer DR 5-105(B) (when determining lawyer’s knowledge of
existence of conflict, all facts that lawyer knew or reasonably
should have known are attributed to lawyer).37
As to FLIR’s prospective remediation defense spe-
cifically, expert testimony established that it was a rec-
ognized strategy in SEC investigations of this kind, even
where joint representation had occurred. Although isolated
statements in FLIR’s Wells Submission arguably could be
read to inferentially cast a negative light on Samper or
Eagleburger, other evidence in the record provides contrary
context to those statements, regarding FLIR’s remediation
defense and its objective interest in persuading the SEC to
look forward, not backward. For example, expert testimony
showed that a remediation defense typically involves differ-
ing arguments for the company than for individuals, but that
does not necessarily mean that their interests are adverse.
Indeed, joint representation in SEC proceedings often con-
tinues in the same fashion that it did here—with the com-
pany’s lawyers continuing to represent individual clients in
a supporting role during the Wells phase—because the cli-
ents’ various defenses can be synthesized with each other,
even if they are not identical. That is essentially what trans-
pired here. FLIR had an objective interest in focusing the
SEC on remediation, and FLIR’s Wells Submission therefore
did not engage the SEC about the earlier accounting issues;
instead, it focused on prospective remediation. By contrast,

37
Additionally, unlike the Bar and the trial panel, we read the statement in
FLIR’s Wells Submission about the SEC “pursuing fraud claims against one or
more individuals who may have been responsible” as a factual observation about
actions that the SEC had taken, not as a recommendation on FLIR’s part that the
SEC should pursue a fraud claim against any particular individual.
Cite as 356 691 (2015)	737

the individual clients each defended their own interests,
some by focusing on earlier events as needed.38 The record
does not clearly and convincingly support the Bar’s theory
that FLIR and the individual clients had objective interests
during the Wells phase that were adverse to each other.39
D.  Rosenbaum’s Phone Call to SEC Concerning Swedish
Drop Shipment Not Within Scope of Second Cause
The trial panel concluded that Rosenbaum’s October
3, 2002, phone call to the SEC to inquire about the Swedish
Drop Shipment entry demonstrated the existence of either
an actual or likely conflict under former DR 5-105(E)
between FLIR and Wynne on the one hand, and Samper
on the other, that Rosenbaum did not disclose. As noted,
the panel found that to be a violation under the sixth cause,
which had alleged current-client actual or likely conflicts
between Wynne and Samper.40 The Bar asserts on review
that Rosenbaum’s phone call to the SEC fell under its second
cause, which alleged similar conflicts between FLIR and the
accuseds’ individual clients, including Samper, during the
SEC investigation through the Wells phase. The accuseds
disagree that Rosenbaum’s phone call fell within the scope
of any allegation and contend that the panel erred in deter-
mining that any violation had occurred. As explained below,
we agree with the accuseds.
38
Fitzhenry’s Wells Submissions engaged the SEC about past events relat-
ing to his signature on the 1999 management representation letter. Samper,
for his part, opted not to file a Wells Submission at all, and Eagleburger’s
Wells Submission does not appear to be in the record. Nothing in FLIR’s Wells
Submission was inconsistent with the individual clients’ objective interests in
convincing the SEC that they each had not engaged in any intentional wrong-
doing or in mitigating against negative outcomes.
39
The Bar also argues that FLIR’s Wells Submission contained statements
that showed adverse interests between FLIR and Daltry. Daltry did not receive a
Wells Notice, however, and so the accuseds’ representation of him effectively had
ended when he completed his SEC testimony. The Bar did not prove any current-
client conflict of interest between FLIR and Daltry during the Wells phase.
40
The Bar’s sixth cause alleged that Wynne’s SEC testimony had implicated
Daltry and Samper as responsible for FLIR’s 1998 and 1999 financial misstate-
ments and accounting errors; however, Rosenbaum’s phone call did not pertain
to Wynne’s testimony. The trial panel acknowledged that the Bar did not specif-
ically allege wrongdoing on Rosenbaum’s part regarding the information con-
veyed to the SEC in her phone call but invoked ORCP 23 B in determining that a
violation had occurred. See ORCP 23 B (when issues not raised by pleadings are
tried by parties’ express or implied consent, those issues shall be treated as if
they had been raised in the pleadings).
738 In re Ellis / Rosenbaum

An accused lawyer must be put on notice “of the
conduct constituting the violation,” as well as the rule viola-
tion at issue. In re Magar, 296 Or 799, 806 n 3, 681 P2d 93
(1984). In that regard, BR 4.1(c) provides, in part:
“A formal complaint shall * * * set forth succinctly the
acts or omissions of the accused, including the specific
statutes or disciplinary rules violated, so as to enable the
accused to know the nature of the charge or charges against
the accused. “

That rule “does not obligate the Bar to plead any fact regard-
ing a charge * * * beyond those that the * * * [former] dis-
ciplinary rules identify.” In re Kluge, 332 Or 251, 262, 27
P3d 102 (2001). The Bar must, however, sufficiently allege
facts in connection with the charged allegation. Compare
In re Albrecht, 333 Or 520, 544, 544 n 20, 42 P3d 887 (2002)
(rejecting argument that complaint insufficiently alleged
conversion for lawyer’s own use because one aspect of alle-
gation described and alleged that type of conversion), with
In re Spencer, 355 Or 679, 689, 30 P3d 538 (2014) (court did
not address theory of “personal interest” not alleged as con-
flict of interest violation), and Magar, 296 Or at 803, 806 n 3
(Disciplinary Board erred in basing rule violation on cer-
tain aspects of problematic client representation not alleged
or described in complaint), and In re Lasswell, 296 Or 121,
128, 673 P2d 855 (1983) (Disciplinary Board erred in basing
rule violation concerning prosecutor’s extrajudicial state-
ments on particular events not charged in complaint; only
factual event described in complaint provided basis to ana-
lyze alleged rule violation). See also State ex rel Currin v.
Comm’n on Judicial Fitness, 311 Or 530, 533, 815 P2d 212
(1991) (adequate notice is necessary component of due pro-
cess); In re Chambers, 292 Or 670, 676, 642 P2d 286 (1982)
(trial panel erred in reaching guilt determination as to mis-
representation; although proof supported panel’s determina-
tion, complaint contained no allegation putting lawyer on
notice that being charged with misrepresentation).
As discussed earlier, in this case, the Bar’s second
cause alleged conflicts of interest among the accuseds’ cur-
rent clients during the SEC investigation. That cause con-
tained one allegation that—in isolation—arguably could be
Cite as 356 691 (2015)	739

read to encompass Rosenbaum’s October 3, 2002, phone call
to the SEC:
“Represented by [Rosenbaum] and Ellis, FLIR agreed
to cooperate fully with the SEC in its investigation and
revealed to the SEC information that implicated *  * *
Samper * * * as responsible for the misstatement of FLIR’s
1998 and 1999 financial status and for FLIR’s accounting,
record-keeping, and financial reporting practices in 1998
and 1999.”

(Emphasis added.) When read in its entirety, however, the
unmistakable purpose of the second cause was to allege mis-
conduct—including FLIR’s alleged revealing to the SEC of
information unfavorable to Samper and others—occurring
within a particular time frame that began with the spe-
cial committee’s determinations by summer 2000, contin-
ued through the SEC investigation and interviews in 2000
and 2001, and ended in March 2002 with FLIR’s filing of
its Wells Submission. Rosenbaum’s phone call to the SEC
occurred on October 3, 2002, after the SEC’s judgments
against FLIR and Samper had been entered, and well after
the time frame referred to in the Bar’s second cause. That
cause therefore did not sufficiently allege facts to permit
Rosenbaum “to know the nature of the charge * * * against
[her],” BR 4.1(c), respecting any implication flowing from
her phone call to the SEC. The trial panel erred in conclud-
ing otherwise.41
V.  TENTH CAUSE (ELLIS ONLY)—FORMER
DR 5-105(C), FORMER-CLIENT LIKELY CONFLICT
DURING FITZHENRY BAR MATTER
A.  Trial Panel Decision and Parties’ Contentions on Review
The tenth cause against Ellis alleged that Ellis’s rep-
resentation of Fitzhenry in his Bar matter after the Daltry

41
As noted earlier, 356 Or at ___ n 40, the trial panel invoked ORCP 23 B
in determining that Rosenbaum’s October 3, 2002, phone call to the SEC showed
that a likely conflict of interest existed between FLIR and Wynne, and Samper.
This court never has concluded that ORCP 23 B applies in Bar proceedings, and
nothing in the Bar Rules of Procedure suggests that application of ORCP 23 B is
permitted or appropriate. By contrast, as explained above, the Bar Rules require
that the complaint notify the accused lawyer of the alleged misconduct at issue.
740 In re Ellis / Rosenbaum

and Samper SEC representations had ended—including
continuing to assert on Fitzhenry’s behalf that he had relied
on Daltry’s and Samper’s assurances when signing the 1999
management representation letter that also had been at
issue in the SEC proceeding—amounted to a former-client
conflict of interest under former DR 5-105(C) that Ellis had
been obligated to disclose to both Daltry and Samper, so as
to obtain their consent to his representation of Fitzhenry.
The trial panel concluded that the Bar did not prove that
Ellis’s representation of Fitzhenry was or was likely to be
adverse to Daltry’s or Samper’s interests in the DOJ inves-
tigation, and, therefore, no conflict existed. The Bar chal-
lenges that conclusion on review. Ellis first responds by
emphasizing that the Bar’s allegation focuses on Fitzhenry’s
trial panel hearing and review in this court, which occurred
after the Rules of Professional Conduct replaced the for-
mer Code of Professional Responsibility. Fitzhenry, 343 Or
at 88 n 1. Because the Bar charged only violations under
the former Code of Professional Responsibility, Ellis argues
that we should dismiss the allegations under this cause.
Alternatively, Ellis argues that the Bar failed to prove that
any former-client likely conflict of interest existed under for-
mer DR 5-105(C) because it failed to prove that the SEC and
Bar matters were significantly related or that the interests
of the various clients were adverse.42
B.  Adoption of Oregon Rules of Professional Conduct in
2005 Narrowed Scope of Misconduct Alleged Under
Tenth Cause
We begin with Ellis’s argument about the scope
of the Bar’s allegations under the former rules. We agree
that former DR 5-105(C) did not apply to misconduct alleged
to have occurred on or after January 1, 2005, the effective
date for the Oregon Rules of Professional Conduct. See In re

42
The Bar’s complaint had alleged an “actual or likely” former-client conflict
under this cause. The trial panel determined that the Bar did not prove that
Ellis’s representation of Fitzhenry in the Bar matter “was or was likely to be
adverse to the objective interests of Samper and Daltry” in the DOJ investiga-
tion. On review, the Bar asserts the existence of a “conflict.” Because the Bar’s
argument is limited to the question of adversity and does not mention any obli-
gation on Ellis’s part to contend for competing client positions, we analyze only
whether a likely conflict of interest existed.
Cite as 356 691 (2015)	741

Hartfield, 349 Or 10

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2780793. Public record. Not legal advice.