# In Re Complaint as to the Conduct of Cohen > Oregon Supreme Court · August 10, 2000 · 330 Or. 489 URL: https://www.frixlaw.com/law-library/cases/9503452 ## Case - **Full name:** In Re Complaint as to the Conduct of RICHARD D. COHEN, Accused - **Court:** Oregon Supreme Court - **Decided:** August 10, 2000 - **Citations:** 330 Or. 489; 8 P.3d 953; 2000 Ore. LEXIS 630 - **Precedential status:** Published - **Opinion:** Concurring in part by Riggs - **Judges:** Riggs - **Cited by:** 20 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/9503452 ## How later opinions describe it (automated extraction) - finding recovery from mental disability when several witnesses and mental health therapist testified that accused lawyer was on medication for a significant period, it had improved his mental health, and he would continue to improve and recurrence was unlikely - explaining that issues that are preliminary and foundational in nature, such 9 as a breath testing instrument’s current certification and the fact of its proper working 10 order, are non-testimonial and do not implicate the Confrontation Clause - holding that letter of admonition is evidence of earlier misconduct only if misconduct that gave rise to letter was similar to misconduct at issue - stating that letter of admonition is relevant only if conduct giving rise to letter involved same or similar type of misconduct - holding that a letter of admonition counts as a prior disciplinary offense for the purposes of ABA Standards 9.22(a) ## Opinion text RIGGS, J., concurring in part and dissenting in part. I concur with the majority’s result and analysis, except to the extent that the majority fails to apply prospectively what can be considered only a newly announced rule concerning past letters of admonition as a factor that aggravates a current sanction. The majority asserts that this court, in the past, generally has considered letters of admonition to be part of a lawyer’s prior disciplinary record. 330 Or at 497. In support of that position, the majority cites In re Stauffer, 327 Or 44 , 956 P2d 967 (1998), and a series of cases set out in footnote 6 of *511 the majority’s opinion. 330 Or at 498 n 6. The majority suggests that those cases support its position because those cases refer either to the admonition being a “prior disciplinary offense” or part of the accused lawyer’s “prior disciplinary record.” In my view, however, those cases are not clear on the significance, if any, of a letter of admonition. Compare In re Gildea, 325 Or 281 , 299 n 24, 936 P2d 975 (1997) (expressly declining to consider letter of admonition as part of prior disciplinary record), with In re Jones, 326 Or 195, 200 , 951 P2d 149 (1997) (stating that this court considers only “offenses that have been adjudicated,” but nevertheless noting that accused had engaged in misconduct that resulted in letters of admonition), and In re Whipple, 320 Or 476 , 489 n 9, 886 P2d 7 (1994) (noting, without further discussion, that accused had received letter of admonition). An example of this court’s confusing pronouncements on the issue is the Jones court’s reference to “adjudicated” offenses. The majority now concedes that the use of that term “is not [an] entirely accurate” description for a letter of admonition. 330 Or at 499 n 7. The majority also posits that this court’s “case law further demonstrates that a letter of admonition particularly can be significant if it involved misconduct that was similar to the misconduct at issue in the case at bar and if the accused lawyer received the letter close in time to the misconduct at issue.” 330 Or at 498-99. Although I agree with the wisdom of such a rule, I disagree that our case law, taken as a whole, supports the claimed history of such a rule of law. My review of the 15 cases cited by the majority in its footnote 6 discloses seven cases wherein the court did not mention the nature of misconduct that was the subject of the letter of admonition. Those cases are In re Devers, 328 Or 230, 243 , 974 P2d 191 (1999); Stauffer, 327 Or at 68 ; Gildea, 325 Or at 299 n 24; Whipple, 320 Or at 489 n 9; In re Gastineau, 317 Or 545, 558 , 857 P2d 136 (1993); In re Devers, 317 Or 261, 263-64 , 855 P2d 617 (1993); In re Benson, 317 Or 164, 170 , 854 P2d 466 (1993). In four additional cases, the misconduct involved in the prior letter of admonition differed from the misconduct at issue. Those cases are In re Starr, 326 Or 328, 347 , 952 P2d 1017 (1998); Jones, 326 Or at 200 ; In re Cohen, 316 Or 657, 664 , 853 P2d 286 (1993) (Cohen I); In re Hedrick, *512 312 Or 442, 450 , 822 P2d 1187 (1991). In only two cases that the majority cites, In re Porter, 320 Or 692 , 708 n 9, 890 P2d 1377 (1995), and In re Benjamin, 312 Or 515, 523 , 823 P2d 413 (1991), did the letter of admonition involve misconduct that was similar to the misconduct at issue. The majority also points out that the Board of Governors (BOG) of the Oregon State Bar has adopted the following policy statement concerning letters of admonition: “An admonition does not constitute the imposition of formal discipline. An admonition is, however, a public statement that the attorney’s conduct, in the opinion of the SPRB, violated the rules of professional conduct of the Oregon State Bar.” BOG Policy 9.305(B), approved as of August 1990 (emphasis added). The BOG policy statement does not constitute a disciplinary rule, nor does it bind this court unless adopted as a rule. Nevertheless, the existence of the policy statement has the potential to have misled lawyers who have settled their differences with the Bar in the belief that the BOG policy statement meant that the acceptance of a letter of admonition would not carry with it the consequences that the majority’s opinion now mandates. Because of the lack of clarity in this court’s case law and the existence of BOG Policy 9.035(B), and because I believe that we have created unwittingly today a trap for those who have detrimentally relied on the previous state of the law, I would apply the rule concerning letters of admonition prospectively only. For those reasons, I concur in the result of the majority, but I dissent as to the retroactive application of that part of the majority’s opinion that deals with the effect of prior letters of admonition. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503452. Public record. Not legal advice.