In Re Complaint as to the Conduct of Gatti
330 Or. 517, 8 P.3d 966, 2000 Ore. LEXIS 647 (2000)
Rule of Law:
Lawyers are prohibited from engaging in dishonesty, fraud, deceit, misrepresentation, or knowingly making false statements of law or fact, and no investigatory exception exists for any lawyer, whether in public or private practice, even when investigating suspected unlawful conduct.
Facts:
- Prior to the events in question, the accused, Mr. Gatti, represented chiropractors involved in 'Operation Clean Sweep,' an undercover investigation by SAIF Corporation and the Oregon Department of Justice (DOJ) into workers' compensation fraud.
- In 1992, Mr. Gatti filed a complaint with the Oregon State Bar (Bar), alleging that lawyers involved in Operation Clean Sweep unethically advised SAIF investigators to pose as fake patients and janitors to infiltrate medical offices.
- The Bar investigated Mr. Gatti's 1992 complaint, and in 1993 and 1994, disciplinary counsel informed him that there was no evidence of ethical violations by SAIF or DOJ attorneys, suggesting government attorneys might have more latitude in legal undercover operations.
- In April 1994, Dr. Saboe, a chiropractor, expressed to Mr. Gatti his 'unease' about the methods of Comprehensive Medical Review (CMR), a company reviewing medical claims for State Farm Insurance Company, and Mr. Gatti came to believe CMR used non-medical personnel and a 'formula' to deny claims.
- On May 17, 1994, Mr. Gatti, angry over a client's claim denial based on a CMR report signed by Dr. Becker, made three phone calls to CMR personnel without performing legal research on the ethics of misrepresentation.
- During these calls, Mr. Gatti misrepresented himself as a chiropractor to Dr. Becker and as a doctor interested in working for CMR, performing independent medical exams, and seeing patients to CMR Vice-President Adams, intending to deceive them into making damaging statements.
- After these calls, Mr. Gatti developed a plan for a formal fraud investigation against CMR and subsequently filed a federal lawsuit against CMR, State Farm, and others in June 1994.
- In August 1994, when responding to the Bar's inquiry about Adams's complaint against him, Mr. Gatti falsely denied misrepresenting himself as a chiropractor to Adams, claimed to be conducting a fraud investigation, and later, through his lawyer, stated that certain notes could not be located, despite having the transcript of his call with Adams.
Procedural Posture:
- The Oregon State Bar filed a disciplinary complaint against the accused, Mr. Gatti, alleging violations of DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).
- A trial panel of the Disciplinary Board concluded that Mr. Gatti committed the alleged violations but dismissed the Bar's amended complaint, finding that the Bar was estopped from prosecuting him.
- The Bar sought review of the trial panel's decision before the Supreme Court of Oregon.
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Issue:
Does a lawyer violate professional conduct rules and statutes by misrepresenting their identity and purpose to obtain information during an investigation, and should an investigatory exception to these rules be recognized for either private or government attorneys?
Opinions:
Majority - PER CURIAM
No, a lawyer violates professional conduct rules and statutes by misrepresenting their identity and purpose to obtain information during an investigation, and the court will not recognize an investigatory exception for any lawyer. The court first rejected Mr. Gatti's estoppel defense, stating that the Bar's prior letters regarding government lawyers' conduct did not imply that private attorneys could use deception, and any reliance on such an interpretation was unreasonable because disciplinary counsel advice is not a defense. The court found that Mr. Gatti knowingly and intentionally misrepresented his identity and purpose to Dr. Becker and Adams, made false statements, and intentionally omitted material facts, which unequivocally violated DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 7-102(A)(5) (knowingly making false statements of law or fact), and ORS 9.527(4) (willful deceit or misconduct in the legal profession). The court emphasized that the prohibitions against dishonesty apply broadly, are not limited to litigation or client representation, and do not require recipient reliance. The court explicitly declined to create an 'investigatory exception' to these rules and the statute, asserting that such an exception would contradict the plain wording of the rules and the statute, which bind all Bar members equally. The court stated that creating exceptions falls within the Bar's formal rule-making process (ORS 9.490(1)), not judicial decree, and it is prohibited from inserting exceptions into ORS 9.527(4) (ORS 174.010). Finally, the court dismissed Mr. Gatti's constitutional defense that the Bar selectively prosecuted private lawyers but not government lawyers, finding no evidence of unconstitutional favoritism; the Bar's prior decision not to prosecute government lawyers was due to a lack of evidence, not an unrecognized exception. Given the intentional nature of the violations and the widespread misunderstanding among lawyers regarding such conduct, a public reprimand was deemed the appropriate sanction, considering both aggravating and mitigating factors.
Analysis:
This case significantly clarifies that ethical rules prohibiting dishonesty, fraud, deceit, and misrepresentation apply universally to all lawyers in Oregon, without any 'investigatory exception' for either government or private attorneys, even when investigating suspected wrongdoing. It underscores the judiciary's reluctance to create exceptions to established rules of professional conduct, deferring such changes to the formal rule-making process of the Bar. The ruling puts all lawyers on notice that using deceptive tactics, even with the best intentions to uncover fraud, will result in disciplinary action, potentially chilling some forms of private investigative work by attorneys.
