# In Re Complaint as to the Conduct of Brandt > Oregon Supreme Court · September 14, 2000 · 331 Or. 113 URL: https://www.frixlaw.com/law-library/cases/9503448 ## Case - **Full name:** In Re Complaint as to the Conduct of William D. Brandt, Accused. in Re Complaint as to the Conduct of Mark E. Griffin, Accused - **Court:** Oregon Supreme Court - **Decided:** September 14, 2000 - **Citations:** 331 Or. 113; 10 P.3d 906; 2000 Ore. LEXIS 695 - **Precedential status:** Published - **Opinion:** Concurring in part by Riggs - **Judges:** Carson, Gillette, Van Hoomissen, Kulongoski, Leeson, Riggs - **Cited by:** 21 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/9503448 ## How later opinions describe it (automated extraction) - explaining requirements of full disclosure under DR 10-101(B) ## Opinion text RIGGS, J., concurring in part and dissenting in part. I concur with the majority’s findings that the accused did not violate Disciplinary Rule (DR) l-lOSIC). 1 I respectfully dissent from the majority’s findings that the accused violated DR 2-108(B), DR 5-101(A)(l), and DR 1-102(A)(3), and I would dismiss entirely those allegations. I join the separate concurring and dissenting opinion of my colleague, Justice Kulongoski, except to the extent that he finds that the accused violated DR 2-108(B). As to DR 5-101(A)(l) and DR 1-102(A)(3), I do not believe that the nature of the accused’s representations to Bramel or the Bar suggests the mental state that the majority opinion imputes. Moreover, even if the majority is correct in its findings of fact and the inferences that flow from them, I believe that the sanctions imposed are excessive. *171 It is impossible to overemphasize our role here. We are reviewing, de novo, whether the Bar has sustained its burden of proving each allegation by clear and convincing evidence. I note at the outset that I agree with the majority as to the meaning of most, but not all, of the relevant disciplinary rules. Whether the accused’s conduct in this proceeding violated those rules, however, is a very different matter. My review of the record indicates that this is a much closer case than the majority opinion acknowledges. Although this proceeding does not have many disputed facts, the parties hotly dispute the inferences that can be drawn from those facts. It is those inferences that are crucial to deciding this proceeding. As Justice Kulongoski’s opinion aptly demonstrates, many, if not most, of the facts and inferences can be viewed from a perspective that supports the accused’s theories. Because that is so, and for the reasons explained below, I believe that the Bar has failed to meet its burden of proving the charges by clear and convincing evidence. ' Turning first to the majority’s analysis of the DR 5-101(A) matters, the issue is whether, given what Bramel knew at the relevant times, the accused told Bramel enough so that he was aware of a potential adverse impact on him if he consented to the accused’s prospective employment relationship with Stanley. It is true that DR 10-101(B) (quoted in the majority opinion) speaks of “full disclosure.” This court recently considered the meaning of the term “full disclosure” in In re Hassenstab, 325 Or 166, 175 , 934 P2d 1110 (1997). There, this court held that full disclosure of a conflict meant “an explanation sufficient to apprise the client of the potential adverse impact upon that client.” Id. Here, the majority, at the Bar’s urging, expands that definition to require disclosure of virtually all details of a potential adverse impact — a much higher standard than the rule and our case law require. As I explain below, I do not believe that DR 5-101(A) required the accused to say more to Bramel than what was said in the January 17,1994, letter. First, I disagree with the majority’s analysis of the statements that the accused made in their January 17,1994, *172 letter to Bramel. In my view, the majority’s temporal analysis — which permeates its opinion, especially its analysis of DR 1-102(A)(3) — is only one of two reasonable ways to view the facts. For example, the majority takes the accused to task for their use of the wording “after” in their January 17,1994, letter to Bramel (“[ajfter we obtained Mac/Stanley’s agreement to resolve our cases for a sum certain”). 2 Looking at the chain of events, it is possible to view that statement as the accused’s reasonable interpretation of the facts: the retainer agreement was suggested by Richards on January 6, 1994, which was “after” December 20,1993, the day that the plaintiffs lawyers and the lawyers for Stanley agreed on a settlement amount. On January 4,1994, Richards sent by facsimile the three versions of settlement forms to Brandt. On January 6, Wagner wrote a letter to Richards that stated that those settlement forms were acceptable to the plaintiffs’ lawyers. At that point, “after” the lawyers had agreed not only on a settlement amount, but also on the written form of the settlement agreements, Richards suggested the retainer agreement. It is true that, on January 6, 1994, all the clients had not yet signed the settlement agreement and, therefore, the cases technically were not “finally” settled. On that date, however, a reasonable lawyer, familiar with representing individuals in a litigation or negotiation context, as the accused were, could have considered the case as a “done deal.” After all, the plaintiffs’ lawyers had agreed on a settlement amount and the terms of payment, which are usually the most important components of a settlement agreement. In the circumstances of that litigation, in which the accused were familiar with their clients’ expectations for settlement, it is not unreasonable for the accused to have believed that their clients would consent to the settlement. In their January 17, 1994, letter to Bramel, the accused stated that Stanley had made a “separate offer to hire” the accused. In fact, the retainer agreement was a physically “separate” agreement and purposefully was structured in a separate way in the escrow arrangement suggested by *173 the mediator. 3 Finally, in their April 21, 1994, letter to the Bar, the accused’s statement that they did not agree “to work for Mac Tools[/Stanley] while the case was still pending” also can be interpreted reasonably not to state an intentional misrepresentation. Specifically, that statement could be understood to mean that Stanley would not retain the accused until after all the accused’s clients’ claims were settled. In sum, and with due respect to the majority, the majority’s temporal focus does not resolve clearly and convincingly the DR 5-101(A) allegations in the Bar’s favor. The majority also faults the accused for failing to point out certain details surrounding the accused’s retainer agreement with Stanley. In the majority’s view, the accused should have disclosed in their January 17, 1994, letter to Bramel that they had agreed to place the retainer agreement in escrow pending completion of the settlement. The majority also faults the accused for failing to disclose in that letter that the retainer agreement contained indemnity provisions from Stanley that would be implicated in the event that Bramel sought recovery from the accused. The majority fails to explain why Bramel’s interests legally were compromised by the indemnity provisions — a seemingly necessary element in the analysis. In fact, an indemnity provision has the effect of providing an additional “pocket” for any potential future recovery by Bramel. Such a provision neither insulated the accused from legal action by Bramel, nor required Bramel to sue additional parties if he seeks recovery from the accused. Neither did the indemnity agreement create or remove any causes of action or defenses on either side. It did not create or restrict jurisdiction of venue, or erect other pleading barriers that otherwise would not have existed. In short, the Bar does not identify — and the majority opinion cannot point to — any legally cognizable or strategic detriment to Bramel that resulted from the indemnity provision. There simply is no obligation to disclose that which is not material to the client’s interests and which does no harm to the lawyer-client relationship. *174 Finally, the majority reasons that its reading of DR 10-101(B) requires that a detailed explanation of a conflict be made by the lawyer (the accused) directly to the client (Bramel). The majority opinion suggests that it is not enough that a client already knows of the conflict because of the client’s discussions with another lawyer or an informed third party, or because the client knows and understands the complete parameters of the conflict as a result of the client’s own personal or professional knowledge. No case from this court supports such a reading of the rule. To the contrary, in In re Bishop, 297 Or 479 , 686 P2d 350 (1984), the court stated: “The duty of full disclosure is not satisfied by just advising the client to obtain independent legal advice. If the client does not obtain such advice, the lawyer must inform the client that their interests in the transaction are adverse.” Id. at 488-89 (construing former DR 5-104(A) (1994)) (emphasis added). 4 It makes sense that the converse also must be true: when the client, at the lawyer’s recommendation, does obtain independent legal advice about the very matter at issue, the amount of disclosure that will be “sufficient to apprise the client” is less, or perhaps becomes nonexistent, because the client now has new representation and might be in an adversarial relationship with the referring lawyer. Here, the accused timely advised Bramel to obtain counsel, and Bramel did so. Bramel obtained a lawyer who professed particular and substantial knowledge of ethical matters and who undertook active and vigorous representation of Bramel against the accused regarding the very matters that are in dispute under DR 5-101(A) and DR 10-101(B). The accused’s disclosure of the nature of the conflict and their recommendation of independent counsel adequately protected Bramel’s interests. To say that even more disclosure was required by the accused under those circumstances *175 ignores what happened here. The majority fails to identify any interest of Bramel that was affected, let alone prejudiced, by the accused’s actions. In sum, the Bar has not proven by clear and convincing evidence that the accused’s January 17,1994, letter failed to tell Bramel enough to apprise him of any potential adverse impact on him, given the totality of the somewhat unique facts in this proceeding. For many of the same reasons discussed above, and particularly because of my temporal analysis, I also dissent from the majority’s conclusion that the accused violated DR 2-108(B). I turn to the majority’s discussion of DR 1-102(A)(3). The allegations regarding that charge implicate many of the same facts and inferences discussed above. The Bar’s complaint alleges misrepresentation on the part of the accused by commission and omission in what the accused told both Bramel and the Bar. I have discussed above my disagreement with the majority’s conclusion respecting the facts surrounding the accused’s representations to Bramel, and that analysis extends to DR 1-102(A)(3). The discussion regarding the majority’s temporal analysis, ante, is appropriate equally to the majority’s analysis of misrepresentation to the Bar, and I shall not repeat it here. Finally, I turn to the sanctions imposed. Because, for the reasons discussed above, the Bar has not met its burden in the “guilt” phase of the proceeding, a sanction is not warranted. Even if, as the majority believes, the Bar has met its burden of proving violations of several disciplinary rules, the sanctions imposed by the majority are inappropriate in light of the accused’s mental state. I disagree with the majority’s view that the accused acted with intent when they represented certain facts to Bramel and the Bar. To me, the record does not demonstrate clearly and convincingly that the accused acted with a “conscious objective or purpose to accomplish a particular result.” American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) at 7. Rather, I conclude that the accused acted with “knowledge,” *176 that is, “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” Id. As they stated in their January 17, 1994, letter to Bramel, the accused were aware that the retainer agreement might have created a conflict of interest. Despite that awareness, I do not believe that the accused’s failure to disclose the details of the escrow arrangement or the existence of the indemnity agreement was because of any “conscious objective or purpose.” As the majority notes, a lawyer’s failure to disclose fully a known possible conflict implicates ABA Standard 4.32, which provides for suspension as a possible sanction where the lawyer’s failure to disclose “causes injury or potential injury to a client.” The majority does not point to, nor does this record reveal, any actual financial injury to Bramel. The record does not indicate, and no one suggests, that the settlement amount to which Bramel last agreed was inadequate compensation for the loss that Bramel suffered at the hands of Stanley. Thus, the Bar is left with only “potential” injury to Bramel. With ABA Standard 4.32 in mind, I conclude that the potential client injury shown here is not sufficient to justify the length of the suspensions imposed by the májority. Turning to aggravating and mitigating circumstances, my analysis again parts company with the majority’s. I do not find that the accused engaged in a “pattern of misconduct” in their dealings with either Bramel or the Bar. ABA Standard 9.22(c). Rather, the conduct here constitutes a single transaction: it involves neither a series of unrelated acts nor multiple victims. The accused took a position that they believed was correct in a novel and highly complex piece of litigation. They made representations to Bramel and to the Bar that were interrelated and were consistent with their initial position. On this record, there simply is no pattern of misconduct. Cf. In re Schaffner, 323 Or 472, 480 , 918 P2d 803 (1996) (finding pattern of misconduct where accused repeatedly failed to respond or to take action to protect clients’ interests and failed to answer Bar’s continuing inquiries over considerable period of time). Therefore, the Bar has not established that aggravating factor. *177 I also disagree with the majority’s conclusion that the accused acted with a dishonest or selfish motive when they communicated with the Bar. 5 ABA Standard 9.22(b). For the reasons already discussed, I do not believe that the accused communicated dishonestly with the Bar. Finally, in mitigation, I emphasize the accused’s lack of a disciplinary record. ABA Standard 9.32(a). Griffin has no prior disciplinary record, and Brandt’s 1993 letter of admonition is of no moment here. See In re Cohen, 330 Or 489, 500 , 8 P3d 953, 959 (2000) (holding that letter of admonition is evidence of earlier misconduct only if misconduct that gave rise to letter was similar to misconduct at issue). Accordingly, each of the accused has approximately 25 years of unblemished membership in the Bar. 6 See ABA Standard 9.3(g) (listing “character or reputation” as mitigating circumstance). In sum, the sanction selected by the majority is unjustified. For the foregoing reasons, I concur in part and dissent in part from the majority opinion. I also join in part the separate concurring and dissenting opinion of Justice Kulon-goski, as set out in this opinion. Kulongoski, J., joins in part in this opinion as set out in his separate concurring and dissenting opinion. This is a consolidated lav»., er disciplinary proceeding, and I follow the majority’s characterization oí Brandt and Griffin collectively as “the accused.” Similarly, in its analysis regarding DR 1-102(A)(3), the majority faults the accused for a similar reference in the accused’s April 21, 1994, letter to the Bar (“[a]fter the settlement was finalized”). It is worth noting that it was the mediator, not the accused, who initiated the idea of the c ’crow agreement as a vehicle for solving the accused’s concerns about treating the retainer agreement contemporaneously with the settlement. Former DR 5-104(A) (1994) provided that a lawyer must not enter into a business transaction with a client if their interests differ unless the client consents after full disclosure. Although former DR 5-104(A) (1994) is not a predecessor to any of the rules at issue in the present case, the current disciplinary rules do not embody a substantially different standard of “full disclosure” than did the former rules. Thus, this court’s construction of the concept of “full disclosure” in former DR 5-104ÍA) (1994) informs the analysis of “full disclosure” under current DR 5-10HA) and DR 10-10KB). In my view, Bramel, however wronged, reasonably can be seen as the kind of occasional and difficult client familiar to most members of the litigation bar: A person with unreasonable expectations that often are impossible to meet. Although I believe that the contingent fee that the accused would receive upon settlement of Bramel’s claim could have motivated the accused to act the way they did, I also believe that the accused might have been motivated equally by the understandable desire to get Bramel out of their collective “hair” as quickly as possible. My guess is that the accused gladly would have settled for almost anything that resulted in Bramel just “going away.” Based on my own occasional experience with similarly minded clients, that is an understandable sentiment, even though it neverjustifi.es unethical conduct by a lawyer. I emphasize that I recognize that Bramel’s desirability as a client makes no difference with respect to whether the accused violated these disciplinary rules. In analyzing the appropriate sanction, however, I do believe that Bramel’s attributes as a client bear on the evaluation of the accused’s motives and state of mind. Unfortunately, the record does not disclose whether, and to what extent, either of the accused were active in Bar service activities, pro bono work, or community activities. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503448. Public record. Not legal advice.