In Re Complaint as to the Conduct of Lasswell , 296 Or. 121 ( 1983 )

ROBERTS, J.,

dissenting.

I write separately to dissent because I believe the majority opinion will result in undesirable consequences.

The majority, in requiring that a lawyer must act “with indifference” before violating DR 7-107(B)(5) and (6), has gone too far in my opinion in weighing free speech against a defendant’s right to a fair trial. Under the majority opinion only the most blatant behavior on the part of prosecutors will require disciplinary action.

A prosecutor has, by the very nature of the job, a responsibility to protect the integrity of trials. Therefore, a test that hinges on whether the prosecutor “knows or is bound to know” that his acts “pose a serious and imminent threat to the process” protects both the prosecutor’s freedom of speech and defendants’ right to a fair trial.

I respectfully dissent. I join in the separate dissenting opinion of Campbell, J.

Campbell, J., concurs with this dissenting opinion.