In Re Complaint as to the Conduct of Davenport

RIGGS, J.,

concurring in part and dissenting in part.

Although I agree with the majoritys finding that the accused’s conduct violated various disciplinary rules, I disagree with the sanction and would impose a six-month suspension, consistent with the trial panel’s decision and recommendation.

It is worth observing that this case arises under somewhat unique circumstances in an atmosphere in which the PLF and the Bar find themselves subjected to extensive media coverage with heavy public criticism and a drumbeat for “corrective action.” I write because I am troubled by what I consider to be a very peculiar and difficult role for lawyers who are counsel to the Professional Liability Fund (PLF) and because I believe the trial panel’s sanction was supported by the record before us.

The majority opinion notes that the accused’s participation in the acquisition strategy is not at issue in this proceeding. In the sense meant by the majority, that is true. But the relationship of the accused to the PLF and the situation the PLF finds itself in is the source of much of the mischief here. In fact, the PLF’s acquisition strategy, used in the underlying transaction here, is a relatively common strategy among insurers. That strategy, distasteful and untidy as it seems in these circumstances, is nevertheless legal. Although the PLF was designed, in part, to provide a resource for the public to facilitate recovery for the mistakes of the practicing bar, it was and is, in effect, an insurance company that *326 receives mandatory premiums from Oregon lawyers. In that schizophrenic role, the PLF should be expected to serve its “policy holders” in a businesslike, if not fiduciary, fashion. Since PLF premiums largely are based on claims experience as a major factor of the cost of doing business, it follows that accepted and reasonable insurance defense strategies designed to preserve the fisc are appropriate. Because preserving the fisc occasionally may be at odds with the so-called “public responsibility” aspect of the PLF’s functions, the PLF may be forced to choose, like some companies in the insurance marketplace sometimes do, to ignore a moral compass.

Here, what the accused did clearly was wrong. He is not a simple scapegoat. However, I read this record to suggest strongly that he was motivated exclusively by a desire to protect his client (the PLF) in carrying out an unfortunate, but legal, insurance defense strategy that depended on secrecy and stealth. The majority correctly points out that a dishonest motive can exist even when a motive of personal selfish gain is not present. Nonetheless, as the trial panel noted, personal selfish gain is absent here and, for me, when we consider sanctions, that is very significant.

The majority opinion accurately analyzes the accused’s record as a bar member. He has no prior bar disciplinary history. Indeed, the record before us indicates nothing but years of honorable practice as a senior partner in a distinguished law firm. Moreover, as the Bar concedes, the accused cooperated fully with the Bar’s investigation. With that history in mind, and in the context of the circumstances present here, I would accept the trial panel’s sanction recommendation of a six-month suspension.

For those reasons, I respectfully concur with the majority opinion on guilt and dissent insofar as the majority’s sanction is concerned.