In re Complaint as to the Conduct of McMenamin

879 P.2d 173, 319 Or. 609, 1994 Ore. LEXIS 86

• Court: Oregon Supreme Court
• Decided: August 25, 1994
• Docket: OSB 90-86; SC S40621
• Status: Published

Opinions

PER CURIAM

This is a lawyer disciplinary proceeding. The Oregon State Bar (Bar) charges that the accused had a conflict of interest in violation of DR 5-105(0 (1989).¹ A trial panel of the Disciplinary Board found the accused not guilty. The Bar sought review by this court pursuant to BR 10.1, BR 10.3, and ORS 9.536(1). We review the record de novo. ORS 9.536(3). The Bar has the burden of establishing ethical misconduct by clear and convincing evidence. BR 5.2. Because we conclude that the Bar has not established ethical misconduct by clear and convincing evidence, we adopt the decision of the trial panel. BR 10.6.² The Bar’s complaint is dismissed. Costs and disbursements to the accused. ORS 9.536(4).

1 DR 5-105(0 (1989) provided:

“[A] lawyer who has represented a client in a matter shall not subsequently represent another client in the same or a significantly related matter when the interests of the current and former clients are in actual or likely conflict.”

That version of the rule did not define the term “significantly related.”

2 BR 10.6 provides:

“The court shall consider each matter de novo upon the record and may adopt, modify or reject the decision of the trial panel or the [Board of Bar Examiners] in whole or in part and thereupon enter an appropriate order. If the court’s order adopts the decision of the trial panel or the [Board of Bar Examiners] without opinion, the opinion of the trial panel or the [Board of Bar Examiners] shall stand as a statement of the decision of the court in the matter but not as the opinion of the court.”