potential for injury to public and profession exists because, “when lawyers have conflicts of interest, they jeopardize the willingness of clients to disclose fully their confidences and thereby jeopardize the ability of clients to obtain the most effective legal representation possible”
How later courts described this case
- potential for injury to public and profession exists because, “when lawyers have conflicts of interest, they jeopardize the willingness of clients to disclose fully their confidences and thereby jeopardize the ability of clients to obtain the most effective legal representation possible”
Written by the judges who cited it.
The opinion
FADELEY, J.,
concurring.
On de novo review, I find, as did the trial panel, that the accused lawyer has not been proved guilty of a conflict-of-interest violation by evidence that is both clear and convincing. That level is not achieved here, in my opinion, for the following three reasons.
I. ADVICE OF EXPERT COUNSEL
When a new client sought the accused’s services to sue a former client, the accused recognized that a potential conflict question was present. He contacted the Bar’s experts on the disciplinary rules and ethical practices and asked them about taking the new client’s case. They gave him the green light, that no prohibited conflict was present. That position of the Bar is entitled to some weight in the scales of justice used *612 to determine whether the evidence of the Bar to the contrary of its former position is convincing.
II. CONTRADICTIONS IN THE PROOF
The Bar’s case for an information-specific conflict rests on an inference to be drawn from certain testimony of the accused before the trial panel that, taken by itself, seems an admission against the accused’s interest. But it does not stand by itself in the accused’s testimony. Other, and more frequent, answers given on the same point do not support drawing the inference. Unless I am to believe that the accused was credible in only one of his answers on the point, I cannot disregard the totality of his answers to draw an inference that they do not warrant. At best, taken in context rather than in isolation, the answer is ambiguous. Accepting the accused as credible, as did the trial panel, the inference fails for lack of a sufficiently clear or convincing foundation.
III. FAILURE TO PRODUCE MORE SATISFACTORY EVIDENCE
A statute embodying a long-held belief about the reliability of weaker evidence where stronger evidence is available applies in this case. ORS 10.095(7) and (8) tell me, as a factfinder, to view with “distrust” that weaker evidence.
The Bar produced the weaker evidence of the accused’s answer that was clearly against his interest only if taken in isolation from the rest of his testimony. That answer involved the contents of an earlier conversation with the executive head of his former client. Stronger and more satisfactory evidence perhaps could have been produced, if the contents of that conversation was as the Bar contends, by producing that executive as a witness to recount the conversation and display any notes that he might have made about it. But the Bar, which bears the burden to persuade convincingly, failed to produce or explain the absence of that witness. The ambiguous evidence must be viewed in the light of the statute and the absent, potentially stronger, evidence. In that light, the Bar’s evidence fails to convince. The accused has not been proved guilty of the disciplinary charge and is, therefore, not guilty.
I concur in that finding.