P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Foley, 19 DB Rptr 205 (2005)
2003. The Accused failed to serve or otherwise provide Else Ferron and her counsel
with a copy of Subpoena 3 or a notice of deposition concerning the subpoena as
required by ORCP 39 and ORCP 55. CHETCO delivered documents to the Accused
in response to Subpoena 3.
12.
Based on the foregoing, the Accused admits that he engaged in conduct
prejudicial to the administration of justice in violation of DR 1-102(A)(4), and
intentionally or habitually violated established rules of procedure in violation of DR
7-106(C)(7).
Sanction
13.
The Accused and the Bar agree that in fashioning an appropriate sanction in
this case, the ABA Standards for Imposing Lawyer Sanctions (hereinafter
“Standards”) are considered. The Standards require that the Accused’s conduct be
analyzed by the following factors: (1) the ethical duty violated; (2) the lawyer’s
mental state; (3) the actual or potential injury; and (4) the existence of aggravating
and mitigating circumstances.
A. Duty Violated. The Accused violated his duties to the legal system.
Standards, § 6.1.
B. Mental State. The Accused’s conduct demonstrates negligence,
knowledge and intent. Standards, at 7. The Accused was initially negligent when he
failed to determine that his procedures did not comply with the law. The Accused
should have known that his failure to provide notice of the depositions and the
subpoenas for financial records did not comply with the law when he served
Subpoena 1. When the Accused served Subpoena 2 and Subpoena 3, opposing
counsel had previously notified the Accused that he was required to provide notice.
Nevertheless, the Accused served CHETCO with Subpoenas 2 and 3 without
providing opposing counsel and the non-parties with notice, including a copy of the
subpoenas and notice of the depositions.
C. Injury. There was potential injury to the opposing party and to
nonparties to the legal proceeding whose records the Accused sought by service of
the subpoenas. They were denied notice and thereby denied the opportunity to object
and to determine the sufficiency of the subpoenas. CHETCO was also injured
because it relied on the language of the Accused’s subpoenas that depositions had
been scheduled and, consistent with the Oregon Rules of Civil Procedure, notice
thereof had been provided. The Accused did not tell CHETCO that no depositions
had been scheduled and no notice of the subpoenas had been given to opposing
counsel and the nonparties whose records the Accused commanded be produced.
208