In Re Complaint as to the Conduct of Gustafson

968 P.2d 367, 327 Or. 636, 1998 Ore. LEXIS 942
CourtOregon Supreme Court
DecidedNovember 13, 1998
DocketOSB 95-34; SC S43937
StatusPublished
Cited by36 cases

This text of 968 P.2d 367 (In Re Complaint as to the Conduct of Gustafson) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Complaint as to the Conduct of Gustafson, 968 P.2d 367, 327 Or. 636, 1998 Ore. LEXIS 942 (Or. 1998).

Opinions

[638]*638PER CURIAM

In this lawyer discipline proceeding, the Oregon State Bar (the Bar) seeks reversal of a decision by a trial panel of the Disciplinary Board. Rule of Procedure (BR) 10.5(a). The Bar alleges that the accused violated Disciplinary Rule (DR) 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(4) (conduct prejudicial to the administration of justice) (two counts). The trial panel concluded that the Bar failed to prove that the accused violated the disciplinary rules as charged and dismissed the Bar’s complaint.

This court reviews the trial panel’s decision de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing misconduct by clear and convincing evidence. BR 5.2. On de novo review, we conclude that the accused is guilty of violating the disciplinary rules as charged. We further conclude that a six-month suspension is the appropriate sanction.

FINDINGS OF FACT

The following facts have been established by clear and convincing evidence. The accused was admitted to practice law in Oregon in 1981. From 1981 until March 1996, the accused was a deputy district attorney in Clackamas County.1 The charges against the accused stem from her prosecution of a juvenile case in 1993 and 1994. That case began in late 1992, when two preschool-aged girls told their parents that a teenage boy in their neighborhood (the juvenile) had molested them. Later, the girls stated that the juvenile’s parents also had molested them. A juvenile delinquency petition was filed against the juvenile in Clackamas County Juvenile Court, and a grand jury returned indictments against the parents in Clackamas County Circuit Court.

The accused, who then was a senior deputy district attorney, was assigned to prosecute the parents (the adult cases). The case against the juvenile (the juvenile case) was [639]*639assigned to Deputy District Attorney Kolbe. Matasar represented the juvenile, and Houze and Bowman represented the father and mother, respectively.

In December 1993, the accused replaced Kolbe as the prosecutor in the juvenile case. The accused actively began working on the juvenile case in January 1994.

In April and May 1994, a court hearing was held in the adult cases to address alleged discovery violations by the state. Judge Selander presided over the hearing, which took place between April 12 and May 20,1994. On April 13,1994, Matasar testified for the defense at that hearing, relating difficulties that he had encountered in obtaining discovery from Kolbe in the juvenile case.

During that time, Matasar continued to investigate and prepare the defense in the juvenile case. On April 18, 1994, he interviewed one of the state’s principal witnesses, Dr. Bays, who had examined the two victims and diagnosed them as having been physically and sexually abused. Matasar met with Bays to learn more about her diagnosis and its basis. To that end, Matasar asked Bays questions about her diagnostic techniques. During the interview, Bays believed that the tone of the interview shifted from informational and conversational to confrontational—similar to what she had experienced during cross-examinations in court cases. For example, Matasar asked Bays whether she was sure about her diagnosis and, if so, why. During the latter half of the interview, Matasar told Bays that the juvenile had passed a polygraph test and a penile plethysmograph test. After the interview, Bays called the accused and asked whether the juvenile had passed those tests. She also told the accused that Matasar had been “pushy” about his client’s innocence.

On April 20, 1994, Matasar returned to the courthouse to observe the continuing hearing in the adult cases. Because the court had excluded witnesses from the hearing, and Matasar had been a witness, Houze called the court’s attention to Matasar’s presence in the courtroom, stating that he would not be recalling Matasar as a witness for the defense. The accused responded:

[640]*640‘Your Honor, I might like to call him as a witness. I am very disappointed that he won’t be called as a witness. I have some information that I think that may be relevant to this case, that I just discovered, regarding Mr. Matasar.”

Judge Selander then excluded Matasar from the courtroom.

In order to ascertain the “information” to which the accused had referred, Matasar telephoned the accused that afternoon.2 The accused refused to tell him what information she had referred to, stating that it could be used for impeachment purposes. She also stated that she did not expect to use that information if Matasar testified for the state in the adult cases, but that she expected to use it if he testified for the defense. The accused made other statements, discussed in greater detail later in this opinion, that led Matasar to believe that the accused had threatened him with a possible criminal investigation and an ethical complaint to the Bar. By the end of their conversation, Matasar had agreed to testify for the state at the hearing in the adult cases, and the accused had agreed that she would not mention her impeachment information.

The possibility of a criminal investigation greatly concerned Matasar. Immediately after the telephone conversation with the accused, he called a lawyer, Marmaduke, for legal advice. Marmaduke agreed to represent Matasar. That afternoon, Matasar prepared a memorandum for Marmaduke that summarized his telephone conversation with the accused.

Marmaduke contacted then-Chief Deputy District Attorney Miller and then-Clackamas County District Attorney O’Leary. He asked both Miller and O’Leary if they would talk to the accused to determine the nature of her impeachment information concerning Matasar. Neither Miller nor O’Leary succeeded. However, the accused told O’Leary that the information was not criminal in nature. O’Leary, in turn, told Marmaduke that the information related to impeachment, but not to potential criminal charges.

[641]*641Matasar, however, remained concerned about the accused’s perceived threats. On May 10, 1994, Judge Selander held an in-chambers conference before any farther testimony by Matasar at the hearing in the adult cases. During that conference, Marmaduke requested that the court order the accused to disclose her impeachment information and expressed Matasar’s concern that that information could create a conflict of interest in Matasar’s representation of the juvenile. The accused responded that she believed that Matasar knew what the impeachment information was, that she had told him that the information could be the basis, upon further investigation, for an ethical complaint or criminal charges, and that she had no desire to make an ethical complaint against Matasar or to cause an investigation of him. The accused also stated that she did not think that her impeachment information would interfere with Matasar’s representation of the juvenile. Judge Selander refased to order the accused to disclose the information, stating that he did not know of any authority that would allow him to order the state to disclose possible impeachment information. He also observed that the information would not interfere with Matasar’s duties in the juvenile case, because it related only to the adult cases.

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Bluebook (online)
968 P.2d 367, 327 Or. 636, 1998 Ore. LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-complaint-as-to-the-conduct-of-gustafson-or-1998.