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IN RE COMPLAINT AS TO THE CONDUCT OF HOSTETTER
MEMORANDUM OPINION
WILLIAM J. BOYCE, Justice.
A jury found appellant Edward Louis Thomas guilty of two counts of aggravated assault against a public servant. The trial court assessed his punishment at forty years' confinement for one count and thirty-five years' confinement for the other, both sentences to run concurrently. Appellant challenges his two felony convictions on the grounds that the trial court erroneously admitted extraneous offense evidence and the State made improper jury argument. We affirm. Background The facts of this case are largely uncontested. In January 2007, Houston Police Department ("HPD") officers Michael Hamby and Tim Butler stopped for lunch at a restaurant in Humble. They were both in plain clothes. Officer Hamby had his police identification on a chain around his neck and his badge on his belt. Officer Butler was wearing a jacket with the word "POLICE" written in large print on the back. Both officers were armed with their service weapons. After they finished their lunch, they exited the restaurant and saw appellant sitting in the front seat of their unmarked police vehicle with the driver's door open. The officers immediately drew their weapons, identified themselves as police officers, and ordered appellant out of the vehicle. Appellant did not surrender to the officers; instead, he exited the vehicle and slipped into the front seat of another vehicle parked next to the officers' unmarked vehicle. This car had been parked, with the engine running, so that the driver's door was next to the driver's door of the officers' vehicle. The officers moved to flank the car, with Officer Hamby on the passenger side of appellant's car and Officer Butler on the driver's side. Both officers continued to demand that appellant exit his vehicle. Officer Hamby could see only one of appellant's hands, so he was concerned that appellant could be reaching for a weapon on the vehicle's floorboard. Appellant accelerated forward, hitting Officer Hamby on the right leg. Appellant's car also hit Officer Butler, throwing him onto the hood of the vehicle. Officer Butler shot at appellant through the windshield of the vehicle; Officer Hamby also discharged his weapon at the vehicle several times. The car veered to the right, throwing Officer Butler off the hood. Officer Butler continued to fire at the vehicle. Appellant drove the car over a curb and came to a stop in some bushes. Appellant did not immediately get out of the car; instead, he fumbled with something inside the car. He emerged from the vehicle and kneeled on one knee. The officers continued to order him to the ground. Officer Hamby called 911 for assistance and an ambulance. While Officer Hamby was on the phone with the 911 dispatcher, appellant stood up and appeared to reach for something under his sweatshirt. Officer Butler fired at appellant several more times. Appellant then fell to the ground. Humble Police Department ("Humble PD") officers arrived at the scene shortly thereafter. Although this offense involved HPD officers, because it occurred in Humble, Humble PD officers were in charge of the investigation. Various other agency officials also arrived, including an official from the Harris County District Attorney's office. Appellant was transported to the hospital. Appellant was charged with two counts of aggravated assault against a public servant. He pleaded not guilty and was tried by a jury. Officers Hamby and Butler testified at trial, along with numerous other witnesses. Appellant's defense centered on the theory that officers Hamby and Butler overreacted because they were angry appellant had broken into their car, and concocted the story that appellant had intentionally tried to hit them with his vehicle to justify the shooting. After hearing the evidence and argument of the attorneys, the jury found appellant guilty as charged in the indictments. After a punishment hearing, the trial court assessed appellant's punishment at forty years' confinement for cause number 1101865 and thirty-five years' confinement for cause number 1101866, with the sentences to be served concurrently. Appellant timely appealed the trial court's judgments. Analysis Appellant presents three issues on appeal. In his first issue, he contends that the trial court erroneously admitted extraneous offense evidence. In his second and third issues, he complains about allegedly improper jury argument by the State. We address each issue in turn. I. Extraneous Offense Evidence In his first issue, appellant asserts that the trial court erred by admitting evidence of an extraneous offense during the guilt-innocence phase of appellant's trial. He asserts this evidence was prejudicial to the defense and not probative of any issue in the trial. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Id. We cannot reverse a trial court's admission decision solely because we disagree with it. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We must affirm a trial court's ruling if it is correct on any theory of law applicable to the case. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Generally, extraneous offense evidence is not admissible to prove the character of a person or to show action in conformity therewith. See Tex. R. Evid. 404(b); Daggett v. State, 187 S.W.3d 444, 450-51 (Tex. Crim. App. 2005). However, "[e]vidence that is otherwise inadmissible may become admissible when a party opens the door to such evidence." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Jensen v. State, 66 S.W.3d 528, 538 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Here, appellant filed a pre-trial motion in limine seeking to prevent the State from introducing evidence regarding weapons found in his vehicle after his arrest. After appellant's vehicle was towed from the crime scene and processed by the Humble PD's Crime Scene Unit, one of the officers discovered a loaded magazine for a Glock handgun in the center armrest of the vehicle. This discovery led him to search further, and he found a loaded Glock handgun in a hidden compartment located on the lower driver's side of the console area, near the floorboard. With help from another officer, he also located a 9-millimeter Smith and Wesson handgun with hollow-point bullets behind the glove compartment of the vehicle. On direct examination, Officer Hamby testified that he could see only one of appellant's hands when appellant was driving the vehicle toward him and Officer Butler. Officer Hamby testified he was concerned that appellant might be reaching for something on the floorboard. Officer Hamby also explained that, once appellant got out of the vehicle, he appeared to reach for something under his sweatshirt. Officer Hamby further testified that he believed appellant was reaching for a weapon at that time because "[h]e had just tried to hit two police officers with a motor vehicle, [was] still noncompliant with [their] commands, and at that point [they] had still not done a pat-down search to find out if he had any weapons on him." On cross, the following exchange occurred:
Q. Detective Hamby, are you aware of whether or not there was a weapon ever found on the defendant at the time of the arrest?
[Prosecutor]: May we approach?
The Court: I think so.
(The following proceedings were had at the bench:)
The Court: You're confusing him because he didn't know how to answer it because he's been told not to mention the guns found in the car.
[Appellant]: I didn't ask him about the guns in the car.
The Court: But he's unclear as to —
[Appellant]: He could have said that. I just want to know if he found any on his person.
The Court: I know, but you went dangerously into territory. That's why he's not answering you. He's not sure what he's allowed to say.
[Appellant]: [The prosecutor] can counsel him right now.. . .
(The following proceedings were had in open court:)
Q. All right. Sorry, Detective Hamby, but did you ever, or to the best of your knowledge was there any weapons ever found on the person of the defendant at the time when he was arrested and searched?
A. Not on his person, no, sir.
Q. No weapons, right?
A. No, sir.
[Prosecutor]: Judge, may we approach?
The Court: Yes.
(The following proceedings were had at the bench:)
[Prosecutor]: That just opened the door, Judge.
[Appellant]: I don't think so, your Honor. I think the —
The Court: Well, I do.(emphasis added). Relying on Carter v. State, 145 S.W.3d 702, 708 (Tex. App.-Dallas 2004, pet. ref'd), appellant contends that trial counsel's questioning did not open the door to this evidence. In Carter, the defendant sold crack cocaine to an undercover officer at a suspected drug house; at least one other individual was present at the house when the sale occurred. Id. at 705. About two weeks later, the undercover officer returned to the house and went inside to get "a better layout in order to prepare to execute a search warrant." Id. at 706. A few days later, the officer and several others entered the house to execute the search warrant. Id. The defendant was discovered in the living room of the house and his briefcase and some documents belonging to him were found in the bedroom, although none of these documents included the address of the house where the drug-bust occurred. Id. The officers found cocaine in a back room and marijuana in the den of the house; a runaway juvenile was also present in the house during the drug-bust. Id. At his trial, his counsel confirmed with the undercover officer that no narcotics had been discovered on "the person" of the appellant. Id. Over appellant's Rule 404 objection, the trial court subsequently admitted the cocaine evidence as "res gestae" of the offense. Id. at 707. The Fifth Court of Appeals determined that the trial court erred in admitting this evidence. As is pertinent here, the court explained that the defendant's questioning of the officer regarding any drugs found on his person did not
"open the door" to allowing testimony that cocaine was found in a different room than the room in which appellant was arrested, in a house that was not proven to belong to appellant, and where another person was present, and others had been present, every time the officer had been there. Consequently, the evidence strayed "beyond the scope of the invitation."Id. at 708. In this case, appellant was the driver and only occupant of the vehicle used to hit the officers. A loaded gun was found in a compartment near appellant's right foot, and Officer Hamby testified that he was concerned that appellant might be reaching for something on the floorboard when appellant accelerated toward him and Officer Butler. Additionally, although appellant was arrested once he exited the vehicle, it was his use of the vehicle itself that resulted in the charges filed against him. We thus find the analysis in Carter inapposite to appellant's case. Further, although appellant's first question was specific as to whether weapons were found on his person, his follow-up question was more general and asked Officer Hamby whether weapons were found. Officer Hamby's negative response to this question left the jury with the impression that appellant had no weapons either at the time he was in the officers' vehicle or in his own vehicle. But because a loaded weapon was found in the general vicinity of the driver's side floorboard, it is entirely possible that appellant was either armed when he was burglarizing the officers' vehicle or was attempting to arm himself when the officers ordered him to exit his own vehicle. We thus agree with the trial court that this evidence was relevant and admissible to correct the false impression left by Officer Hamby's testimony. We overrule his first issue. II. Improper Jury Argument In his second issue, appellant contends that the trial court erred by failing to provide an instruction to disregard the State's closing argument that the lesser-included offense of deadly conduct is a misdemeanor. In his third issue, appellant asserts the trial court erred by not sustaining his objection to the State's argument that convicting appellant of deadly conduct would be an insult to the officers. Appellant points to the following exchange to support these issues:
[The State]: The next thing you're going to find in here is a lesser included offense. You've probably heard that term before. Folks, what that means is any time someone, or the facts, even if they're small facts, even if they're not credible facts, any time it's raised, a lesser included offense, the defendant is entitled to have that in this jury charge. That doesn't mean you should consider it. It doesn't mean that the State or the Court or anybody is telling you that that's really what happened here, it's just he's entitled to it, okay. So it's another protection that he gets to make sure that this process is fair.
Now, I crossed it out on mine because I'm telling you this was not a deadly conduct and it would be a slap in the face of these officers to convict Mr. Thomas of a Class A misdemeanor given the facts of what happened in this case. So my position is you don't need to consider that for any reason.
[Defense Counsel]: Your Honor, I object on the — her characterization. There's been absolutely no evidence of what that offense carries, and I think it's — she's basically prejudiced the jury. I'd ask the jury be instructed to disregard her characterization of what deadly conduct is, and I move for a mistrial.
THE COURT: Stay within the record with the argument. Motion for a mistrial is denied.In his second issue, appellant contends that the trial court erred by failing to instruct the jury to disregard the State's comment that the lesser-included offense of deadly conduct was a misdemeanor. Proper jury argument falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Ordinarily, it is improper for the State to comment on punishment during the guilt-innocence stage of trial. See McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1976); Wright v. State, 178 S.W.3d 905, 930 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). However, the Court of Criminal Appeals in McClure explained that the harm from commenting on punishment during guilt-innocence arises from the State's suggestion that the defendant should be convicted of the greater offense because of the amount of punishment. McClure, 544 S.W.2d at 393. Moreover, the prosecutor in McClure repeatedly referred to the difference in the number of years the defendant could be confined if convicted of the lesser-included offense as opposed to the greater offense, despite repeated sustained objections and warnings from the trial court. Id. at 391-93. Here, the State did not repeatedly attempt to inject punishment into the guilt-innocence stage and never referred to the range of punishment attached to the offense. Furthermore, the State's argument was not a plea to the jury to consider punishment as opposed to facts when determining guilt or innocence. Cf. id. at 393. Under these circumstances, the State's comment does not amount to reversible error, and the trial court's failure to instruct the jury to disregard is likewise not reversible error. See, e.g., Cifuentes v. State, 983 S.W.2d 891, 892-93 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (concluding that the trial court's failure to instruct the jury to disregard a quite similar remark during the State's closing argument did not amount to reversible error). Accordingly, we overrule his second issue. Turning to his third issue, we note that appellant did not object to the State's comment that a deadly conduct conviction would be an insult to the officers. Instead, as is clear from the section excerpted above, appellant objected only to the State's reference to the lesser-included offense as a misdemeanor. To preserve a complaint for review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). In addition, a contention on appeal must comport with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because appellant's argument under this issue does not comport with his objection at trial, he has failed to preserve this issue for our review. We overrule his third issue. Conclusion We affirm the trial court's judgment.
A grand jury concluded that the shooting was justified and refused to indict the officers involved.
In Carter, the appellant did not make a rule 403 objection. Id. at 707. Although appellant made such an objection in the trial court here, he has not referenced Rule 403 in his brief. Thus, we conclude that he has waived his Rule 403 complaint on appeal.
We first consider whether the loan transactions and debt collection are "significantly related" under DR 5-105(C). Matters are "significantly related" for purposes of DR 5-105(C) if either:
"(1) Representation of the present client in the subsequent matter would, or would likely, inflict injury or damage upon the former client in connection with any proceeding, claim, controversy, transaction, investigation, charge, accusation, arrest or other particular matter in which the lawyer previously represented the former client; or
"(2) Representation of the former client provided the lawyer with confidences or secrets * * * the use of which would, or would likely, inflict injury or damage upon the former client in the course of the subsequent matter."
DR 5-105(0(1), (2).
This court first defined the term "significantly related" in In re Brandsness, 299 Or 420, 430-31, 702 P2d 1098 (1985). In Brandsness, this court explained that
"the principle embodied in the concept of `significantly related' matters consists of two subtests:
" a. Matter Specific.
"Representation of the present client in the subsequent matter would, or would likely, inflict injury or damage upon the former client in any matter in which the lawyer previously represented the former client; or
" b. Information Specific.
"Representation of the former client provided the lawyer with confidential information the use of which would, or would likely, inflict injury or damage upon the former client in the subsequent matter."Id. (emphasis in original). This court clarified that matter-specific conflicts are "keyed to a particular matter," while information-specific conflicts are "based on particular information." Id. at 431.
When DR 5-105(C) was later promulgated, it largely codified the definition of "significantly related" that this court had formulated in Brandsness. In re McKee, 316 Or 114, 129, 849 P2d 509 (1993) ("[t]he new rules codified this court's holding in In re Brandsness"); see also Kidney Association of Oregon v. Ferguson, 315 Or 135, 140 n 7, 145 n 13, 843 P2d 442 (1992) (observing that DR 5-105 "since has been amended, but its effect essentially is the same," and that "changes in DR 5-105 reflect an evolution of terminology rather than substance"). Accordingly, this court's definition of "significantly related" in Brandsness is relevant to this court's interpretation of that term under DR 5-105(C).
The Bar contends that the matters in this case are "significantly related" because the accused engaged in a matter-specific conflict under DR 5-105(0(1). That is, according to the Bar, "[t]o the extent there was, or even could have been, a dispute * * * as to the validity of the loans or the amounts due, the [a]ccused's pursuit of Hohn's interests would, or would likely, inflict injury or damage upon Ingle."
The Bar does not contend that the accused engaged in an information-specific conflict under DR 5-105(C)(2). That is, the Bar does not appear to contend on appeal, nor did it contend before the trial panel, that the accused's representation of Ingle provided the accused "with confidences or secrets * * * the use of which would, or would likely, inflict injury or damage" upon Ingle in the course of the subsequent matter under DR 5-105(C)(2).
In any event, we note that DR 5-105(0(2) requires that an attorney have come into actual possession of client confidences. See id. ("Representation of the former client provided the lawyer with confidences or secrets * * *." (Emphasis added.)). There is nothing in the record in this case that suggests that the accused obtained actual possession of any confidential information in representing Ingle in the loan transactions that would, or would likely, inflict injury or damage upon Ingle in the course of representing Hohn in the debt collection.
In several cases decided before Brandsness, this court consistently held that a former-client conflict of interest exists when an attorney represents a former client in a transaction and then subsequently represents another client in enforcing his or her rights arising out of that same transaction. See In re Holmes, 290 Or 173, 182-84, 619 P2d 1284 (1980) (improper for attorney to represent former client in negotiating settlement of debt, and then represent subsequent client in suing former client to collect that same debt); In re Brownstein, 288 Or 83, 87, 602 P2d 655 (1980) (an attorney cannot represent a former client in a transaction and then subsequently represent another client in an attempt to enforce his or her rights arising out of that same transaction); In re Mumford, 285 Or 559, 561-62, 591 P2d 1377 (1979) (patent conflict of interest existed when attorneys represented husband in divorce and then, on behalf of wife's new spouse, sought to collect against husband the payments under the settlement that had been negotiated while the attorneys represented him). In articulating the test for "significantly related" matters in Brandsness, this court described those cases as "such egregious conflicts that we could decide them without searching for the boundary between the acceptable and unacceptable that closer cases * * * require us to locate." 299 Or at 430. Later, after DR 5-105(C) was promulgated, this court reaffirmed that, under the matter-specific-conflict subtest for "significantly related" matters, an attorney who represented a former client in a transaction may not then represent another client in enforcing his rights arising out of that same transaction. McKee, 316 Or at 129-30 (relying on DR 5-105(0(1), slander of title action was "significantly related" to earlier dissolution proceeding because the accused attempted to enforce provisions of dissolution judgment that he drafted on behalf of former client).
Against that backdrop, we have no trouble concluding that the accused engaged in a matter-specific conflict in this case and, thus, the matters are "significantly related" for purposes of DR 5-105(C)(1). Here, the accused, in the loan transactions, drafted several promissory notes and mortgages on behalf of Ingle in obtaining loans from Hohn. He then, in the debt collection, subsequently represented Hohn in enforcing his rights arising out of those same documents. Such an "egregious conflict" leaves us with no doubt that the accused's representation of Hohn in the debt collection "would, or would likely" inflict injury or damage upon Ingle in connection with the loan transactions.
The accused nonetheless argues that the matters are not "significantly related," reasoning that Ingle could not be injured or damaged by the subsequent representation, because she was deceased. As noted, matters are "significantly related" under DR 5-105(C)(1) when, as pertinent here, representation of the present client in the subsequent matter "would, or would likely, inflict injury or damage upon the former client[.]" (Emphasis added.) The wording of that portion of the rule focuses on the former client, and not on the interests of the former client. That focus — at first blush — could support the accused's contention that, once a client is deceased, he or she could not be injured or damaged and, thus, matters could not be significantly related under DR 5-105(C). However, that definitional provision must be understood in the context of the prohibition itself, which arises when, in connection with the subsequent representation, the "interests" of the current and former client are in actual or likely conflict. Given that context, the injury or damage to the former client to which the definition necessarily refers is injury or damage to the former client's interests. Indeed, we can conceive of no other way a lawyer's representation may injure a former client than through his or her interests. That is, conflict of interest rules are just that — they protect the client's interests; they do not intend to protect clients from, for example, physical injury or assault. Accordingly, a deceased client may be injured within the meaning of the rule if, as previously noted, his or her surviving interests may be harmed by the subsequent representation.
In this case, Ingle's interests in the loan transactions were those of a debtor — to minimize her legal debt as much as possible as is reasonable within the bounds of the law. Those interests survived Ingle's death and were represented by her personal representative. See ORS 114.265 (personal representative has fiduciary duty to preserve estate with as little sacrifice of value as is reasonable under the circumstances). Ingle's will also expressly stated that she would fully pay her "just" debts. On the other hand, as the accused himself acknowledged, Hohn's goal in the debt collection was to collect "as much as possible pursuant to the promissory notes and even some loans under which there were no notes[.]" Thus, the accused's representation of Hohn "would, or would likely" injure or damage Ingle's surviving interests in the loan transactions in violation of DR 5-105(C).
We turn to whether the matters are "substantially related" pursuant to RPC 1.9(a). Whether the analysis under RPC 1.9(a) differs from DR 5-105(C) depends on whether the term "substantially related" differs in meaning from "significantly related." At the time of the accused's conduct, RPC 1.9(a) provided no definition of "substantially related." RPC 1.9 (2005). The new rule thus did not contain the definition previously set out in DR 5-105(C).
The rule was amended effective December 1, 2006, to add the following definition of "substantially related":
"For purposes of this rule, matters are `substantially related' if (1) the lawyer's representation of the current client will injure or damage the former client in connection with the same transaction or legal dispute in which the lawyer previously represented the former client; or (2) there is a substantial risk that confidential information as would normally have been obtained in the prior representation of the former client would materially advance the current client's position in the subsequent matter."
RPC 1.9(d); Order Amending Oregon Rules of Professional Conduct, Chief Justice Order No. 06-059 (Nov 16, 2006), Oregon Appellate Advance Sheets No. 26 (Dec 18, 2006) at A-19. Because the accused's conduct preceded the effective date of the amendment, that definition does not apply in this case.
The term was changed from "significantly related" to "substantially related" when the Oregon Rules of Professional Conduct were adopted on December 1, 2004, effective January 1, 2005. Order Adopting the Oregon Rules of Professional Conduct, Chief Justice Order No. 04-44 (Dec 1, 2004), Oregon Appellate Advance Sheets No. 1 (Jan 3, 2005) at A-3, A-16. Although RPC 1.9 (2005) provides no commentary to explain why the term was changed from "significantly related" to "substantially related," the wording tracks that of ABA Model Rule 1.9(a). See ABA Model Rule 1.9(a) (2002) (former-client conflict of interest exists when matters are the same or "substantially related" and the interests of the former and current client are "materially adverse"). Before the adoption of the RPCs, Oregon's former-client conflict-of-interest rule was distinct from both the ABA Model Rule and the rule adopted in many states because it used the term "significantly related" rather than "substantially related," and it used an actual and likely conflict paradigm rather than requiring that the interests be "materially adverse." American Bar Association and Bureau of National Affairs, Inc., ABA/BNA Lawyers' Manual on Professional Conduct § 51:205 (2002) ("Oregon's ethics code has a unique provision on former-client conflicts" because it uses the term "significantly related" and an actual/likely conflict paradigm.). However, after the RPC was adopted, Oregon's rule became nearly identical to ABA Model Rule 1.9(a).
The only difference between RPC 1.9(a) and ABA Model Rule 1.9(a) is that RPC 1.9(a) allows an exception if the attorney obtains informed consent, confirmed in writing, from each affected client, while ABA Model Rule 1.9(a) requires informed consent, confirmed in writing, from only the former client.
Because RPC 1.9(a) (2005) does not define the term "substantially related," and because it tracks the text of the ABA Model Rule, we look to the commentary of the ABA Model Rules for guidance. In particular, Comment [3] to ABA Model Rule 1.9(a) (2002) provides a definition of "substantially related" for purposes of that rule:
"Matters are `substantially related' for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter."
That definition is not binding on this court, but we consider it for its persuasive value.
The "substantial relationship" test from the ABA Model Rule can be broken down into two subtests:
(1) whether the matters "involve the same transaction or legal dispute"; or
(2) whether there otherwise is "a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter."
(Emphasis added.) In a sense, the ABA Model Rule can be characterized as dealing with matter-specific conflicts and information-specific conflicts, as did DR 5-105(C). Yet, each subtest under the ABA Model Rule appears to be broader than the subtests under DR 5-105(C).
Unlike DR 5-105(0(1), to constitute a matter-specific conflict under ABA Model Rule 1.9(a), a risk of injury is not required; rather the matters must merely involve the same transaction or legal dispute. The main concern appears to be disloyalty to the former client. ABA/BNA Lawyers' Manual on Professional Conduct § 51:226. It is generally, if not universally, accepted that a "current representation adverse to a former client is substantially related to the earlier representation if it involves the lawyer's own work for the former client — especially an attack on that work." Id.; see also Restatement of Law Governing Lawyers § 132(1) (2000) (a current matter is substantially related to an earlier matter if "the current matter involves the work the lawyer performed for the former client").
To constitute an information-specific conflict under ABA Model Rule 1.9(a), unlike DR 5-105(0(2), actual possession of client confidences is not necessary. See discussion 348 Or at 586-87 n 7 (explaining that DR 5-105(0(2) requires actual possession of client confidences). Rather, it is enough if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. The ABA Model Rule protects the former client from having to reveal the confidential information learned by the lawyer. The focus thus is on the risk of information gained "based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services." Comment [3] to ABA Model Rule 1.9(a); see also Richard E. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases § 8.4, 148 (2003) (policy against requiring former client to show precisely what confidences were used against her includes avoiding extensive inquiries into privileged areas).
As previously noted, the Bar did not argue that the accused came into actual possession of client confidences. Neither did it argue that the accused's conduct created a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance Hohn's position in the subsequent representation. We thus confine our focus on whether the matters are "substantially related" under RPC 1.9(a) based on whether the accused engaged in a matter-specific conflict. We conclude that they are. The debt collection and loan transactions certainly involved the same transaction — the underlying loan documents that the accused drafted on behalf of Ingle. The accused's representation of Hohn involved his own work that he had completed on behalf of Ingle and, in that regard, the matters are substantially related. We therefore determine that the accused engaged in a matter-specific conflict in violation of RPC 1.9(a).
The accused disagrees and contends that, to establish a matter-specific conflict pursuant to RPC 1.9(a), the Bar is required to prove actual injury — that is, the Bar is required to prove that the estate paid more than the fair value of Hohn's claims as a result of the accused's representation of Hohn. The accused's premise and conclusion are incorrect. The accused relies on language in RPC 1.9(d)(1) (matters are "substantially related" if the lawyer's representation of the current client "will injure or damage the former client"), a subsection of the rule that, as noted, 348 Or at 589 n 8, was not adopted until after the accused engaged in the conduct at issue. We therefore decline to address the accused's argument in that respect.
3. Whether Ingle's surviving interests were adverse to Hohn's interests during the subsequent representation
A conflict of interest exists under RPC 1.9(a) when the current client's interests "are materially adverse to the interests of the former client." A conflict of interest exists under DR 5-105(C) when the interests of the current and former clients "are in actual or likely conflict." An "actual conflict of interest" exists when "the lawyer has a duty to contend for something on behalf of one client that the lawyer has a duty to oppose on behalf of another client." DR 5-105(A)(1). A "`likely conflict of interest' exists in all other situations in which the objective personal, business or property interests of the clients are adverse." DR 5-105(A)(2). "A' likely conflict of interest' does not include situations in which the only conflict is of a general economic or business nature." Id. So framed, the analysis under RPC 1.9(a) and DR 5-105(C) is not materially distinct.
The Bar contends that Ingle's surviving interests and Holm's interests were per se materially adverse and patently in conflict due to their former relationship as debtor and creditor. We agree. As previously discussed, Ingle's interests in the loan transactions as debtor — i.e., to minimize her legal debt as much as reasonably possible within the bounds of the law — survived Ingle's death and were represented by her personal representative. 348 Or at 589. On the other hand, Hohn's interests as creditor in the debt collection were to maximize the amount that Ingle owed under the loans as much as was reasonable within the bounds of the law and to collect as much of that amount as possible. Those interests are "different" and "adverse." See In re Wittemyer, 328 Or 448, 455, 980 P2d 148 (1999) (conflict of interest existed when a lawyer represented both the lender and borrower in a loan transaction); In re Moore, 299 Or 496, 506, 703 P2d 961 (1985) (debtor and creditor had different interests). Thus, Ingle's surviving interests and Hohn's interests were in likely conflict and materially adverse during the subsequent representation.
The accused disagrees, contending that Ingle's and Hohn's interests were not adverse because the Bar failed to prove that Hohn actually sought to collect on any loans that were not "just." According to the accused, the Bar's assertions that Hohn sought to collect on undocumented loans or loans beyond the statute of limitations are not supported by the record.
The accused conflates "adversity" with "injury." The rules against conflicts of interest require an attorney to assess whether the interests of the former and prospective new client are adverse at the time the attorney seeks to undertake the subsequent representation. Ingle's surviving interests and Hohn's interests as debtor and creditor were adverse from the outset. Whether the subsequent representation ultimately caused actual injury to Ingle is an inquiry relevant to sanctions, and not to whether Ingle and Hohn's interests are adverse or in conflict. See American Bar Association's Standards for Imposing Lawyer Sanctions 7 (1991) (amended 1992) (ABA Standards) (defining actual and potential injury for purposes of sanctions).
In sum, we find that the debt collection was significantly and substantially related to the loan transactions and Hohn's interests were in likely conflict with and materially adverse to Ingle's surviving interests during the subsequent representation. We therefore conclude that the accused violated both DR 5-105(C) and RPC 1.9(a) in the Ingle matter.
B. Grohs Matter
The Bar alleged that the accused engaged in misrepresentation in violation of DR 1-102(A)(3) and RPC 8.4(a)(3) when the accused removed Grohs's signature page from the deed on four parcels, attached it to the deed on three parcels, and then recorded the altered deed. As noted, the trial panel concluded that the accused violated RPC 8.4(a)(3), but did not address DR 1-102(A)(3). The accused seeks review of the trial panel's decision that he violated RPC 8.4(a)(3). On de novo review, we consider whether the accused's conduct violated either rule as alleged.
DR 1-102(A)(3) provides: "It is professional misconduct for a lawyer to * * * [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation[]" RPC 8.4(a)(3) provides: "It is professional misconduct for a lawyer to * * * engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer's fitness to practice law[.]"
A lawyer engages in conduct involving misrepresentation when the lawyer makes a representation, either directly or by omission, that the lawyer knows is false and material. In re Davenport, 334 Or 298, 308, 49 P3d 91, adh'd to as modified on recons, 335 Or 67, 57 P3d 897 (2002). "A lawyer acts knowingly by being consciously aware of the nature or attendant circumstances of the conduct, but not having a conscious objective to accomplish a particular result." In re Lawrence, 332 Or 502, 513, 31 P3d 1078 (2001). A misrepresentation is material if it "would or could significantly influence the hearer's decision-making process." In re Eadie, 333 Or 42, 53, 36 P3d 468 (2001). The accused does not dispute that, if he knowingly attached the signed and notarized signature page from the deed on four parcels to the deed on three parcels and sent it for recording, that such representation was false and material. Neither does the accused dispute that such misrepresentation would reflect adversely on his fitness to practice law. Rather, the accused's sole contentions are that the Bar failed to establish, by clear and convincing evidence, that he acted (1) through direct, personal conduct, or (2) with a knowing state of mind.
First, the accused contends that there is "no evidence — and certainly not clear and convincing evidence — of direct, personal conduct." (Capitalization omitted.) The trial panel concluded that the accused "acquiesced [in] the removal of the notarized signature page" from one deed and had it placed on a second deed. According to the accused, that conclusion is contradicted by the trial panel's "either/or" finding that "the Accused or someone in his office" (emphasis added) removed the signature page from the deed on four parcels and affixed it to the deed on three parcels. The accused thus contends that the trial panel's "either/or" finding of fact cannot support a conclusion by clear and convincing evidence that there was any personal misconduct by the accused.
Second, the accused contends that there is no clear and convincing evidence that the accused acted with the requisite mens rea of "knowledge." The accused argues that "[a]ll the evidence points to a mistake by [the accused]'s office in the filing[.]"
The Bar disagrees and contends that the accused acted both personally and with the requisite knowledge. The Bar relies principally on the accused's letter in response to the Bar and his deposition testimony, in which the accused was "clear and unequivocal" that he personally made the substitution after consulting with Grohs. According to the Bar, although the accused later changed his story and claimed that he had no idea how the signature page on the deed on four parcels became attached to the deed on three parcels, the trial panel considered the disparate versions provided by the accused and rejected the new version.
The question of what the accused actually knew thus hinges on whether this court believes the accused's letter in response to the Bar and deposition testimony under oath, or his later equivocations and retractions. This court gives weight to the trial panel's express credibility assessments. In re Gustafson, 333 Or 468, 470, 41 P3d 1063 (2002). More specifically,
"[w]hen a panel's assessment is based on the objective factors involving the intrinsic believability of competing inferences or evidence — e.g., the inherent improbability of certain testimony, the existence of corroboration, and so on — this court owes no deference to that assessment, but the panel's discussion may be enlightening and have persuasive force. When the panel's assessment is based on subjective observations of a witness's demeanor and the manner in which the witness testifies, the trial panel explicitly should state that its findings are demeanor-based, because this court appropriately defers to the trial panel's superior position to assess credibility on that basis."In re Fitzhenry, 343 Or 86, 103 n 13, 162 P3d 260 (2007).
The trial panel in this case found that the accused's trial testimony varied from his letter of explanation to the Bar and from what was contained in his deposition. The trial panel also found that Grohs was credible in all her testimony and expressly concluded that, where her testimony differed from that of the accused, Grohs was to be believed. The trial panel did not, however, make other express demeanor-based findings.
In contrast to the version of events given by the accused in his letter to the Bar and deposition testimony, Grohs testified at the hearing that she never had a conversation with the accused about attaching her signature from the deed on four parcels to the deed on three parcels. The trial panel found that testimony to be credible, but made no demeanor-based findings. Accordingly, we owe no deference to that assessment. Fitzhenry, 343 Or at 103 n 13. However, Grohs's testimony is corroborated by the accused's billing records and documentation, which do not support that she had such a conversation with the accused. We thus find the panel's credibility finding, based on those objective factors, to have persuasive force. Id. The accused's previous claim in his letter to the Bar and his deposition testimony that he had permission from Grohs to affix the signature page from the deed on four parcels to the deed on three parcels is not credible.
The accused's reason for gaining Grohs's permission also does not hold up factually. The accused claimed in his letter to the Bar and deposition testimony that Grohs was under time pressure to get her loan closed. However, Grohs's loan had already closed several days before the signature pages were switched.
Furthermore, whether the accused had Grohs's permission to alter and record the deed is irrelevant. The misrepresentation occurred in this case when, by recording the document, the accused knowingly made a false representation that Grohs signed the deed on three parcels when, in fact, she had signed and notarized a separate and distinct legal document — the deed on four parcels.
However, that finding undermines only the accused's original proffered reason for attaching the signature page from the deed on four parcels to the deed on three parcels, not his concession that he knew about the signature page switch. As noted, in his letter to the Bar, the accused represented that he sought and received Grohs's permission to "use the deed she signed previously and substitute the legal description of [the deed on three parcels] in place of the legal description for [the deed on four parcels]." That representation to the Bar establishes the accused's knowledge of the signature page switch, whether he or someone in his office personally switched the pages. When the accused later testified before the trial panel that he did not know how the signature page became affixed, his only proffered explanation for the discrepancy in his version of events was that he had no recollection of switching the pages, but merely had speculated that he discussed saving Grohs a trip to the notary, because he "would not ever do anything like that without her agreement." Given that the accused immediately admitted in his letter to the Bar that he was "consciously aware" of the circumstances surrounding the signature page switch to the Bar, we find that he had the requisite knowledge that the notarized signature page from the deed on four parcels was removed and affixed to the deed on three parcels.
Accordingly, the Bar established by clear and convincing evidence that the accused acted with knowledge. Thus, the trial panel correctly concluded that the accused violated RPC 8.4(a)(3). The Bar also proved by clear and convincing evidence that the accused violated DR 1-102(A)(3).
III. SANCTION
Having found that the accused violated the disciplinary rules charged, we must determine the appropriate sanction. The trial panel concluded that the appropriate sanction was a 150-day suspension. On review, the accused challenges the trial panel's sanction, and argues that, at most, a reprimand is warranted. We have reviewed the trial panel's conclusions with regard to the sanction and, as we explain below, we conclude that a 150-day suspension is appropriate.
The purpose of lawyer discipline is not to penalize the accused. In re Glass, 308 Or 297, 304, 779 P2d 612 (1989). Rather, the purpose is to "protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession." ABA Standard 1.1.
In determining an appropriate sanction for a lawyer's violations of the rules, we follow the analytical frame-work that this court has set out in past cases. Under that framework, we determine an initial presumptive sanction based on (1) the ethical duty violated, (2) the lawyer's mental state, and (3) the actual or potential injury caused. See, e.g., In re Jaffee, 331 Or 398, 408, 15 P3d 533 (2000) (articulating methodology). We then adjust that presumptive sanction based on a fourth factor — the presence of aggravating or mitigating circumstances. Id. at 408-09. Finally, we consider whether that adjusted sanction is consistent with Oregon case law. Id. at 409.
A. Preliminary Analysis
The accused has violated multiple rules in this matter. The violations breached the accused's duties to his clients and to the public. ABA Standard 4.3 (failure to avoid conflicts of interest violates duty owed to clients); ABA Standard 5.1 (engaging in misrepresentation violates duty owed to public to maintain personal integrity); see also In re Knappenberger, 338 Or 341, 356, 108 P3d 1161 (2005) ("[a] lawyer's most important ethical duties are those owed to clients, including the duty to avoid conflicts of interest"); In re Spencer, 335 Or 71, 86, 58 P3d 228 (2002) (by engaging in conduct that involved dishonesty and misrepresentation, the accused violated his duty to the public to maintain his personal integrity).
The ABA Standards recognize three mental states: intentional, knowing, and negligent. A lawyer acts with "intent" if he or she acts with "the conscious objective or purpose to accomplish a particular result." ABA Standards at 7. A lawyer acts with "knowledge" if he or she acts with "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Id. "Negligence" is "the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation." Id.
Here, as for the violations in the Ingle matter, based on our de novo review of the record, we conclude that the accused violated DR 5-105(C) and RPC 1.9(a) knowingly. The accused represented Ingle in obtaining a series of loans from Hohn and drafted the documents to evidence and secure those loans. It is undisputed that the accused knew both that Hohn was Ingle's lender in those loan transactions and that Hohn, in the subsequent representation, was seeking to enforce his rights arising out of the very documents that the accused had drafted on behalf of Ingle in the prior representation. Furthermore, the accused testified at the hearing that he was aware that Hohn's interest was "in getting as much as possible pursuant to the promissory notes and even some loans under which there were no notes[.]" In that respect, we conclude that the accused was consciously aware of the nature or attendant circumstances of the conduct underlying the violations in the Ingle matter.
As to the Grohs matter, the trial panel necessarily found that the accused acted with knowledge when it determined that the accused violated RPC 8.4(a)(3). As we previously explained, based on our own de novo review of the record, we agree with the trial panel that the accused violated RPC 8.4(a)(3) knowingly, and we also conclude that the accused violated DR 1-102(A)(3) knowingly. 348 Or at 597-98.
Under the ABA Standards, the injuries caused by a lawyer's professional misconduct may be either actual or potential. See In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992) ("[A]n injury need not be actual, but only potential, in order to support the imposition of a sanction."). Actual "injury" is actual harm to a client, the public, the legal system, or the profession that is caused by a lawyer's misconduct. ABA Standards at 7. "Potential injury" is harm that is reasonably foreseeable at the time of the lawyer's misconduct but that ultimately did not occur. Id.
As to the Ingle matter, there was potential injury to the public and the profession. See In re McMenamin, 319 Or 609, 621, 879 P2d 173 (1994) (Graber, J., dissenting) (potential for injury to public and profession exists because, "when lawyers have conflicts of interest, they jeopardize the willingness of clients to disclose fully their confidences and thereby jeopardize the ability of clients to obtain the most effective legal representation possible"). There was also potential injury to Ingle's interests, but not actual injury to them. Although the estate expended monetary resources in defending the claim against certain "unjust" claims ( i.e., Hohn's claims to collect on loans unsupported by notes and claims beyond the statute of limitations), the estate would have had to do so regardless of who had represented Hohn. See In re Campbell, 345 Or 670, 688, 202 P3d 871 (2009) (injury to former client included potential economic harm, not actual economic harm, because former client would have been required to employ a lawyer even if the accused had not also represented subsequent clients).
Regarding the Grohs matter, we conclude that, although it does not appear that the Wildes suffered any actual injury, there was potential injury to the Wildes, because proper claim of title to the properties could potentially be in dispute due to the altered deed. There also is potential serious injury to the legal system, the profession, and to the public when, as here, a lawyer engages in misrepresentation that reflects adversely on the lawyer's fitness to practice law. In re Paulson, 346 Or 676, 716, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41 (2010).
The ABA Standards provide that suspension is the appropriate sanction for each of the accused's violations of RPC 1.9(a) and DR 5-105(C). See ABA Standard 4.32 (suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes potential injury to a client). Reprimand is generally an appropriate sanction for each of the accused's violations of RPC 8.4(a)(3) and DR 1-102(A)(3). See ABA Standard 5.13 (reprimand is generally appropriate when a lawyer knowingly engages in conduct that involves misrepresentation and that adversely reflects on the lawyer's fitness to practice law). Because suspension is the greater of the two sanctions, suspension is the appropriate preliminary sanction here.
B. Aggravating and Mitigating Circumstances
We next consider any aggravating and mitigating circumstances. We find three aggravating circumstances in this case. First, the accused committed multiple offenses. ABA Standard 9.22(d). Second, having been licensed to practice law in Oregon since 1978, the accused has substantial experience in the practice of law. ABA Standard 9.22(i). Finally, the accused has prior disciplinary offenses. ABA Standard 9.22(a). Specifically, in 1997, the accused was suspended from the practice of law for 90 days for violating DR 1-102(A)(3) (engaging in conduct involving dishonesty), DR 5-104(A) (entering into a business transaction with a client without consent after full disclosure), and ORS 9.527(4) (willful deceit or misconduct in the legal profession). In re Hostetter, 11 DB Rptr 195 (1997). In 2001, the accused was admonished for engaging in a current-client conflict of interest in violation of DR5-105(E).
The accused disputes that the 2001 letter of admonition is appropriately considered as a prior disciplinary offense. We disagree. In In re Cohen, 330 Or 489, 500-01, 8 P3d 953 (2000), this court explained that it ordinarily would not consider a letter of admonition as a prior disciplinary offense if the admonition involved misconduct "wholly different in nature from the misconduct at issue in the case at bar," but would do so if it involved the "same or similar type of misconduct as that presently at issue." The accused was admonished in 2001 because he violated DR 5-105(E) (current-client conflict of interest). Specifically, the State Professional Responsibility Board found that the accused represented clients in a subdivision matter at the same time that the accused's firm was representing another client in lease negotiations (and then a dispute) with those same clients. That misconduct is not "wholly different in nature from the misconduct at issue" in this case but, rather, is similar in type and violates the same duty — the duty owed to his clients. See ABA Standard 4.3 (failure to avoid conflicts of interest violates duty owed to client).
Two mitigating factors are also present. The accused had a cooperative attitude toward the disciplinary proceedings. ABA Standard 9.32(e). The accused also appears to have an excellent reputation in the community. ABA Standard 9.32(g).
C. Oregon Case Law
Having made a preliminary determination that a suspension of some term is appropriate based on the ABA Standards and the aggravating and mitigating factors, we turn to this court's case law to help us determine the duration of that suspension. As we have noted in the past, case-matching in the context of disciplinary proceedings "is an inexact science." In re Stauffer, 327 Or 44, 70, 956 P2d 967 (1998). That is especially so for cases involving multiple violations in multiple matters, because in many such proceedings the accused declines to contest the charges or the sanction. Paulson, 346 Or at 721. Still, we think that this court's past cases do provide some guidance, and that they demonstrate the appropriateness of the suspension in this case.
As this court has explained on several occasions, a finding that a lawyer has engaged in a conflict of interest in violation of DR 5-105, standing alone, typically justifies a 30-day suspension. Campbell, 345 Or at 689; see also Knappenberger, 338 Or at 361 (court ordinarily suspends lawyers who violate DR 5-105(0); In re Hockett, 303 Or 150, 164, 734 P2d 877 (1987) (30-day suspension appropriate for single violation of DR 5-105(C)). Here, however, the accused not only engaged in a conflict of interest, but also engaged in misrepresentation that reflects adversely on his fitness to practice law.
In previous lawyer disciplinary cases involving dishonesty and misrepresentation, this court has ordered sanctions ranging from six-month suspensions to disbarment. In re Wilson, 342 Or 243, 251, 149 P3d 1200 (2006); see, e.g., In re Benson, 317 Or 164, 854 P2d 466 (1993) (six-month suspension for assisting client in preparation of fraudulent documents); In re Hawkins, 305 Or 319, 751 P2d 780 (1988) (disbarment for filing false affidavit and using false evidence); In re Brown, 298 Or 285, 692 P2d 107 (1984) (two-year suspension for preparation of false affidavit).
In re Morris, 326 Or 493, 953 P2d 387 (1998), is particularly instructive here. In that case, this court concluded that the accused violated, inter alia, DR 1-102(A)(3) when she knowingly altered and filed with the court a final account that had been previously signed and notarized by her client. 326 Or at 495, 501-02. This court also concluded that the accused violated DR 5-105(E) (representing multiple current clients when such representation would result in an actual or likely conflict) when the accused simultaneously represented the prior and successor personal representatives of an estate. 326 Or at 495, 503-04. After determining that the accused's violation of DR 5-105(E) was "both obvious and serious," but also finding that the "mitigating factors significantly out-weigh[ed] the aggravating factors," this court imposed a sanction of 120 days. 326 Or at 505-06.
This court also found that the accused violated DR 7-102(A)(5) (in lawyer's representation of client, knowingly making a false statement of law or fact) and DR 1-102(A)(4) (conduct prejudicial to the administration of justice). 326 Or at 495.
Here, as in Morris, the accused's violation of the conflict of interest rules was "obvious and serious." Furthermore, the aggravating factors in this case militate in favor of a sanction greater than the 120-day sanction imposed in Morris. Accordingly, a 150-day suspension is appropriate in this case.
IV. CONCLUSION
Having found, as did the trial panel, that the accused violated DR 5-105(0, RPC 1.9(a), and RPC 8.4(a)(3), as well as DR 1-102(A)(3); having considered the relevant ABA Standards; and having evaluated the applicable Oregon case law, we determine that the appropriate sanction for the accused's violations in this matter is a 150-day suspension.
The accused is suspended from the practice of law for 150 days, commencing 60 days from the date of the filing of this decision.
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