In re Abel: Oregon Supreme Court Clarifies “Actual Knowledge” for RPC 8.4(a)(3) and Uses Objective Indicators to Prove It; False Criminal Threats in Demand Letters Merit Suspension

Citation: In re Gregory Mark Abel, 374 Or 350 (2025)

Court: Supreme Court of Oregon (en banc)

Date: September 25, 2025

Disposition: 30-day suspension, commencing 60 days from filing

Introduction

In this lawyer discipline case, the Oregon Supreme Court addresses the mental-state element of misrepresentation under Oregon RPC 8.4(a)(3). The Oregon State Bar charged Gregory Mark Abel with making misrepresentations in a demand letter sent to an unrepresented opposing party (Jon) in a familial insurance dispute. The letter stated—among other things—that the lawyer was working “in cooperation” with a named deputy district attorney, that the matter “will” be presented to a grand jury as A-felonies, and that counsel was “in discussion with” the sheriff’s office and the district attorney’s office, even though none of that had occurred. A trial panel found a knowing, material misrepresentation and imposed a 90-day suspension.

On review, the Supreme Court clarifies that RPC 8.4(a)(3) requires actual knowledge—not an objective “reasonable person” standard—and explains how courts may prove actual knowledge using objective indicators in the record. Applying that framework, the Court concludes the Bar proved by clear and convincing evidence that Abel knowingly made material false statements to pressure immediate payment and imposes a 30-day suspension (with a 60-day delay to commencement).

Summary of the Opinion

RPC 8.4(a)(3) requires actual knowledge that the statement was false when made; inadvertence or mere recklessness is insufficient.
Courts may determine actual knowledge by weighing a lawyer’s testimony against objective indicators (text, context, structure, tone of the communication; corroborating facts; experience level) and are not confined to an “objective meaning” of the words alone.
Abel’s demand letter conveyed false facts about active cooperation with prosecutors and law enforcement and imminent grand jury action. In context, those statements were knowingly false and material because they could significantly influence the recipient’s decision-making.
Preliminary sanction under the ABA Standards is a reprimand for misrepresentation outside court (Standard 5.13), but aggravating/mitigating factors and comparables support a short suspension—30 days.
“Vulnerability of victim” (Standard 9.22(h)) does not apply merely because the recipient is unrepresented; the Court requires true vulnerability, not just lack of counsel.

Factual and Procedural Background

Respondent, a civil and criminal practitioner, undertook a pro bono representation for “Mark” after an insurance payout was issued following the 2020 Almeda fire that destroyed the mother’s home. The insurer issued two checks jointly to Mark, Jon (Mark’s brother), and their deceased mother. Jon deposited the checks into a preexisting joint account. Abel verified the issuance and clearing of the checks and found a small-estate filing but did not independently verify title documents or survivorship.

Abel then dictated a demand letter to Jon (July 20, 2021). The letter characterized Jon’s conduct as “Grand Larceny,” asserted that Abel was preparing a file “in cooperation” with a specific deputy district attorney (Markiewicz), stated that the matter “will” be submitted to a grand jury to be considered “A-felonies,” and said counsel was “in discussion with” the sheriff’s office and DA’s office. It demanded payment of half the proceeds within six days and warned of imminent actions—closing with a bold, all-caps admonition (“HEREIN FAIL NOT”).

Jon contacted the District Attorney, who confirmed that no cooperation existed and that the office responds to law enforcement submissions, not private counsel. Jon filed a bar complaint. A trial panel found a violation of RPC 8.4(a)(3) and imposed a 90-day suspension. Abel sought Supreme Court review, disputing that the Bar proved “knowledge” and alternatively seeking a reprimand.

Detailed Analysis

1) Precedents Cited and Their Influence

In re Herman, 357 Or 273 (2015): Establishes the elements of a misrepresentation under RPC 8.4(a)(3): an affirmative representation that is false, knowingly made, and material—i.e., would or could significantly influence the recipient’s decision-making. The Court relies on Herman to frame the analysis of materiality and knowledge.
In re Skagen, 342 Or 183 (2006) and In re Sassor, 299 Or 570 (1985): Confirm that recklessness or negligence is not enough; actual “knowing” misrepresentation is required. Sassor also illustrates that a selfish motive is not necessary; knowledge of falsity suffices.
In re Nisley, 365 Or 793 (2019): Articulates the clear and convincing standard (“highly probable”) and emphasizes assessing the lawyer’s intended meaning. Nisley’s approach to intended meaning anchors the Court’s insistence on subjective knowledge, while also using context to interpret statements.
In re Fitzhenry, 343 Or 86 (2007): Focus on what the lawyer “actually knew” when signing a representation letter; credibility may be evaluated using objective factors (probability, internal consistency, corroboration). The Court uses Fitzhenry to justify evaluating Abel’s testimony against the document’s language, context, and his experience.
In re Merkel, 341 Or 142 (2006) and In re Lawrence, 337 Or 450 (2004): In ambiguous-statement cases, courts examine what the lawyer meant to convey and what they knew “in [their] own mind.” Abel’s case involves unambiguous statements, but the Court draws on these principles to emphasize subjective knowledge, assessed through objective evidence.
In re Long, 368 Or 452 (2021) and In re Walker, 293 Or 297 (1982): Support rejecting testimony as not credible when contradicted by persuasive evidence (Long) and recognizing the role of demeanor and candor (Walker).
In re Hedrick, 312 Or 442 (1991): Shows the Court’s willingness to infer knowledge from circumstances when a lawyer “had to have known” given timing and content—relevant to Abel’s experience and the letter’s design.
Sanction comparators:
- In re Leonard, 308 Or 560 (1989): 35-day suspension for knowing misrepresentation in a lease; selfish motive and victim vulnerability aggravated, mitigators reduced length.
- In re Walker, 30-day suspension for misrepresentation to a court, even where motive was to protect another.
- In re Obert, 336 Or 640 (2004): 30-day suspension for knowing failure to inform client of dismissal; mitigators outweighed aggravators.
- In re Spencer, 335 Or 71 (2002): 60 days where lawyer knowingly aided client’s illegal registration and had additional misconduct; multiple aggravators.
- In re Dinerman, 314 Or 308 (1992): 63 days for knowingly false statements to help a client obtain a bank loan and facilitating fraud; dishonest motive aggravated.
- In re Magar, 312 Or 139 (1991): 60 days for knowingly endorsing a co-payee’s name.
- In re Greene, 290 Or 291 (1980): 60 days for deliberate misrepresentations by nondisclosure to a court.
Vulnerability factor cases: In re Spencer, 355 Or 679 (2014) (no vulnerability where client was not unsophisticated); In re Maurer, 364 Or 190 (2018) (vulnerability where opposing party had a “fragile personality”); In re Ramirez, 362 Or 370 (2018) (vulnerability due to lack of sophistication, limited resources, impairment, and urgency). These cases guide the Court to reject vulnerability under ABA Standard 9.22(h) in Abel.
State v. Azar, 372 Or 163 (2024): Notes that Oregon consolidated larceny into “theft” in 1971, underscoring that “Grand Larceny” is not an Oregon crime—illustrative of how Abel’s letter used inaccurate criminal terminology.

2) The Court’s Legal Reasoning

a) Standard of Review and Proof

De novo review: BR 10.6.
Burden of proof: Clear and convincing evidence—facts must be “highly probable.” BR 5.2; Nisley.

b) Mental State: “Actual Knowledge,” Not an Objective Standard

RPC 8.4(a)(3) itself does not state a mental state, but Oregon precedent has long required “knowing” misrepresentation; inadvertent or reckless statements do not violate the rule (Skagen; Sassor). The Court concretizes that requirement here:

“The ‘knowledge’ requirement asks whether the lawyer had actual knowledge, in their own mind, that the disputed statement was false when made. It does not ask what a reasonable person would have understood the statement to mean.” (Citing RPC 1.0(h)’s definition of “knowingly” as actual knowledge, which may be inferred from circumstances.)

Although the trial panel approached the statements’ meaning from an objective standpoint (how a reasonable recipient would read them), the Supreme Court re-centers the inquiry on the lawyer’s actual knowledge and intended meaning—while simultaneously reaffirming that courts may use objective indicators to infer that subjective state of mind.

c) Credibility and Proof of Knowledge: Objective Indicators Matter

The Court adopts a two-track credibility framework (synthesizing Fitzhenry, Walker, Lawrence):

Subjective (demeanor) factors: When available, courts consider whether testimony is candid or evasive.
Objective factors: Courts independently assess the intrinsic probability of testimony, internal consistency, corroboration or contradiction by the record, the text and context of the statements themselves, and the lawyer’s experience level.

Applying that approach, the Court weighed Abel’s explanation (“that’s how I talk”; use of present tense to describe future actions; hurried drafting) against the letter’s text, structure, escalating threats, immediate deadline, and repeated, specific assertions about prosecutorial cooperation and imminent indictment. In context—and in light of Abel’s criminal and civil litigation experience—the Court found it implausible that he merely intended to describe potential future steps. The letter deliberately conveyed that a criminal prosecution was in motion to pressure immediate payment.

d) The Misrepresentations and Materiality

The Court focuses on three statements (the Bar’s primary emphasis on review):

“We are preparing a file in cooperation with [DDA] Markiewicz.”
“Once we have assembled the file, [Markiewicz] will submit it to the Grand Jury for prosecution and be considered A-Felonies.”
“We are in discussion with [the] Sheriff’s Office and the District Attorney’s Office about proceeding in this case.”

Abel knew when he sent the letter that none of that had happened and might never happen. Under Herman, the materiality threshold is easily met: such statements could significantly influence the recipient’s decisions (e.g., paying under deadline to avoid impending arrest). The Court describes the letter’s tone and structure as ratcheting up pressure, including the use of inaccurate criminal terms (“Grand Larceny”), a short fuse, and bold all-caps warnings.

e) Result: Violation of RPC 8.4(a)(3)

The Court concludes the Bar proved, by clear and convincing evidence, a knowing, material misrepresentation reflecting adversely on fitness to practice law. The lawyer’s “hurried” process, even if true, did not negate his actual knowledge of the falsity of the statements he chose to make.

3) Sanction Analysis

a) Duty, Mental State, Injury (ABA Standards)

Duty: Integrity of the legal system (ABA Standard 6.0). Falsely invoking the criminal process to coerce civil payment undermines the system.
Mental state: Knowledge (conscious awareness of the nature/circumstances of the conduct), per ABA Standards at 17.
Injury: Actual injury to the recipient (sleeplessness, fear of imminent arrest, time spent verifying), and injury to the profession through public perception.

b) Preliminary Sanction

Because the misrepresentation was not made to a court, the preliminary sanction is a reprimand under ABA Standard 5.13 (“knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation” that adversely reflects on fitness). ABA Standard 6.12 (statements to a court) does not apply.

c) Aggravating and Mitigating Factors

Aggravators:
- Substantial experience in practice (ABA 9.22(i))—significant weight here given the criminal/civil context.
- Prior discipline (ABA 9.22(a))—2019 public reprimand for conflicts in a dependency matter—little weight due to dissimilarity and isolated nature.
Aggravator rejected: Vulnerability of the victim (ABA 9.22(h))—mere lack of representation is not vulnerability; Jon’s education and effective response showed no special susceptibility (compare Spencer (2014), Maurer, Ramirez).
Mitigator: Absence of dishonest or selfish motive (ABA 9.32(b))—pro bono representation, sincere (albeit misguided) desire to help a client in dire straits; no personal gain.

d) Calibration with Case Law and Final Sanction

Oregon suspensions for knowing misrepresentation vary with context, motive, multiplicity, and harm. Misrepresentations to a tribunal and cases with dishonest motives or multiple violations have drawn 60+ days (Spencer (2002), Dinerman, Magar, Greene), while single-incident, non-court misrepresentations with mitigators support shorter suspensions (30–35 days: Walker, Obert, Leonard).

Here, the Court imposes a 30-day suspension. It recognizes the single-incident nature, pro bono status, and absence of selfish motive, but emphasizes Abel’s experience and the seriousness of knowingly false criminal threats to an unrepresented person. The sanction begins 60 days after the decision date.

4) Impact and Significance

Clarified mental state for RPC 8.4(a)(3): Panels and practitioners must apply a subjective “actual knowledge” standard. Courts may, however, infer that mental state using objective evidence such as the document’s language, the communication’s structure and tone, surrounding facts, and the lawyer’s experience.
Demand letters under scrutiny: False statements about law enforcement or prosecutorial involvement are material and sanctionable. “Inflation” of the criminal consequences to leverage a civil settlement can result in suspension—even for a single letter, even without selfish motive.
Word choice matters: Present-tense assertions (“we are in cooperation” / “we are in discussion”) and definitive future-tense (“will be submitted to the grand jury”) will be read in context. A claimed idiosyncratic speaking style or rushed drafting will not insulate a lawyer from findings of actual knowledge.
Baseline sanction guidance: For misrepresentations to non-tribunals, preliminary sanction is a reprimand (ABA 5.13), but a short suspension is appropriate where aggravators outweigh mitigators. Abel provides a current benchmark (30 days) for single-incident, knowing false threats of criminal prosecution.
“Vulnerability” cabined: Being unrepresented does not automatically trigger the ABA 9.22(h) aggravator; courts will look for actual susceptibility or impaired capacity.
Terminology caution: Invoking non-existent crimes (e.g., “Grand Larceny” in Oregon) can mislead and aggravate perceived coerciveness. Oregon recognizes theft offenses, not common-law larceny (see Azar).
Unaddressed but relevant risk areas: Although the Court did not reach issues such as extortion or other rules (e.g., dealings with unrepresented persons), the opinion underscores the ethical danger zone when wielding criminal-process references in civil negotiations.

Complex Concepts Simplified

Actual knowledge: What the lawyer knew “in [their] own mind” at the time. It can be proven circumstantially—courts do not take a lawyer’s self-serving testimony at face value if contradicted by objective evidence.
Material misrepresentation: A false statement that would or could significantly influence the recipient’s decisions—here, paying immediately to avoid supposed indictment.
Clear and convincing evidence: A higher civil standard requiring that the truth of the facts be “highly probable.”
De novo review: The Supreme Court independently reviews the record and may adopt, modify, or reject the trial panel’s decision.
ABA Sanction Standards: A structured approach to discipline:
1. Identify duty violated, mental state, and injury.
2. Select a preliminary sanction guided by the Standards.
3. Adjust for aggravating and mitigating factors.
4. Cross-check with comparable cases and impose the final sanction.
Victim vulnerability (ABA 9.22(h)): Applies when the victim is particularly susceptible (e.g., impaired, unsophisticated, fragile), not merely unrepresented.

Practical Guidance for Practitioners

Do not assert—or imply—cooperation with law enforcement or prosecutors unless it is actually occurring. If you intend to report, say so accurately (e.g., “We intend to refer this matter to law enforcement”), not “we are working with” or “the DA will present.”
Distinguish clearly between potential future steps and current facts; avoid present tense for future intentions.
Fact-check client narratives before making criminal-process statements. Verify with independent sources when feasible.
Beware of criminal terminology. Use accurate Oregon law terms; avoid archaic or non-Oregon offenses (“Grand Larceny”).
Exercise extra caution when communicating with unrepresented persons; avoid overreaching or misleading implications.
Assume that the full text, structure, tone, and timing of your letter will be scrutinized to infer your knowledge and intent.

Conclusion

In re Abel clarifies a central element of Oregon lawyer discipline: a violation of RPC 8.4(a)(3) requires actual knowledge that a statement was false when made. The Court rejects a purely objective reading of a statement’s meaning but simultaneously confirms that actual knowledge can be proven with objective evidence—textual content, overall context, structure, tone, corroborating facts, and the lawyer’s experience. Applying that framework, the Court finds that Abel knowingly made material false statements about the engagement of the criminal justice system to pressure immediate payment and imposes a 30-day suspension.

The decision delivers concrete guidance for future cases and everyday practice. It cabins the “vulnerability” aggravator; it sets a baseline sanction framework for misrepresentations made outside court; and it provides a cautionary example of how demand letters that falsely invoke criminal consequences can cross ethical lines even in one-off, pro bono matters without selfish motive. The broader message is equally clear: the profession’s integrity demands precision and truthfulness, particularly when the specter of criminal prosecution is invoked to gain civil advantage.