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Cite as In re Tuttle, 19 DB Rptr 216 (2005)
Furthermore, she had the opportunity to come forward with the information even
after Ford’s trial, and still failed to do so.
There is potential injury to Mr. Ford. Ford was acquitted on one of the
charges pertaining to Payne, that of Attempted Compelling Prostitution. Had the
Accused disclosed to Ferder the existence of the exculpatory statements voiced by
Ricks, he would have requested a continuance to evaluate the new evidence. Ferder
would have interviewed Ricks to verify her March 17, 2003, statements and to
identify and contact the three other men Payne had accused of rape. Ferder would
have advised Ford to not waive jury and would have called Ricks to testify at Ford’s
trial. Ferder was aware that the trial judge for Ford’s case, Judge Hart, had a negative
preconception of Ricks. This was one of the reason’s he did not call Ricks as a
witness. The exculpatory evidence that Ricks could testify to, however, would have
weighed heavier over waiving the jury trial. The impact of Judge Hart’s
preconceptions about Ricks would have been substantially less with a jury trial, and
he could have used her testimony.
Having been able to obtain an acquittal on one charge involving Payne, Ford
may have been more successful against the other two counts involving Payne as the
victim, particularly if Ford brought in other evidence and motive for Payne’s
accusations to the police. Clearly the record reflects potential injury to Ford due to
the Accused’s nondisclosure of the exculpatory statements.
The panel is not required to look at whether Ford would have been acquitted
of all the charges involving Payne. Even if the panel were to have found that the
Accused acted negligently, as opposed to knowingly, the ABA Model Rules look to
the effect the Accused’s conduct had on another person and whether the Accused’s
misconduct was likely to cause substantial injury to another person.
Rule 10A of the Model Rules requires the following factors be considered in
evaluating the Accused’s behavior when imposing sanctions:
“A. Factors to be Considered in Imposing Sanctions. In imposing a
sanction after a finding of lawyer misconduct, the court or board shall
consider the following factors, as enumerated in the ABA Standards, for
Imposing Lawyer Sanctions.
“(1) whether the lawyer has violated a duty owed to a client, to the public,
to the legal system, or to the profession;
“(2) whether the lawyer acted intentionally, knowingly, or negligently;
“(3) the amount of the actual or potential injury caused by the lawyer’s
misconduct; and
“(4) the existence of any aggravating or mitigating factors.”
See also In re Gustafson, 327 Or 636, 652–653, 968 P2d 367 (1998) (acknowledging
that “the ABA Standards, require us to analyze the accused’s misconduct in light of
the following factors: (1) the duty violated; (2) the accused’s mental state at the time
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