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

Cite as In re Tuttle, 19 DB Rptr 216 (2005)
At all relevant times, until recently, Dale Penn was the elected District
Attorney, and was the Accused’s employer. Walt Beglau, the current District
Attorney, was the Accused’s immediate supervisor at the time of Ford’s trial. Beglau
was appointed Marion County District Attorney, when Penn left the office in
October 2004. The Accused had several discussions with Mr. Penn and with
Mr. Beglau about the circumstances of this case. Mr. Penn felt that there was no
action to be taken on behalf of the Marion County District Attorney’s office as a
result of this matter. Mr. Beglau also saw no basis for action to be taken by the
Marion County District Attorney’s Office. The Accused testified that, in her opinion,
there was no prejudice to Ford as a result of her failure to timely disclose the
exculpatory information to him or his lawyer.
The Accused admitted that she paid no attention to the actual content of Ricks’
statements. She admitted that she failed to realize the importance of Ricks’
statements. She explained her failure to disclose the exculpatory statements as due
her opinion that Ricks lacked credibility and to her being too busy focusing upon
trial preparation matters.
The record reflects that the Accused responded directly to the court as to the
exculpatory allegations raised by Payne. The Accused’s response to the court at the
time Ricks made the statements demonstrated that she was familiar enough with both
cases to know that Payne was a victim in each.
This panel finds by clear and convincing evidence that the Accused knowingly
did not provide timely discovery of exculpatory evidence of Payne’s recantation to
Ford’s lawyer. This was a violation of DR 7-103(B) of the Code of Professional
Responsibility.
SANCTION
The panel agrees with the parties that there is no case law on point with the
facts in the present case. As the parties candidly acknowledge, the question of what
sanction to impose for the violation of DR 7-103(B) appears to be an issue of first
impression for the Oregon courts. Therefore, the panel looks to the American Bar
Association (ABA) Model Rules of Lawyer Disciplinary Enforcement (hereinafter
called “ABA Model Rules”).
ABA Rules 9 and 10 of the Model Rules for Lawyer Disciplinary Enforcement
give guidance as to when conduct requires a suspension and what factors the panel
can consider. Rule 9B states when conduct is considered to not warrant a restriction
of an accused’s license to practice law.
“Lesser misconduct is conduct that does not warrant a sanction restricting the
respondent’s license to practice law. Conduct shall not be considered lesser
misconduct if any of the following considerations apply:
221