In Re Complaint as to the Conduct of Brown , 298 Or. 285 ( 1984 )

CARSON, J.,

dissenting.

The majority of the court finds Ray G. Brown to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, thus violating DR 1-102 (A) (4) in having prepared and obtained Deonna Anderson’s signature to a false affidavit. If a lawyer intentionally does such a thing, it certainly is a grave professional breach reflecting adversely on his or her fitness to practice law, as found by the court, DR 1-102(A)(6), and deserving of a severe disciplinary sanction.¹ The question is whether the proof that this accused intentionally did so prepare a false affidavit is “clear and convincing.” In re Galton, 289 Or 565, 615 P2d 317 (1980).

In the affidavit at issue, Anderson purported to “clear up and deny” a statement in a receipt obtained from her by Mr. Jarvis Black to the effect that she was changing representation from Black to the accused “because he has agreed to loan me money for my personal needs and expenses to be repaid to him from the proceeds of the recovery in the above claim for damages.” The affidavit stated that the quoted statement was “absolutely untrue.” It continued by stating: “At no time was there any agreement between me and Mr. Brown that he would lend money to me for personal needs and expenses or for any other purpose.”

The majority devotes much of its opinion to demonstrating that the accused in fact lent Anderson money for her personal needs and expenses and that the affidavit was textually false. But whether the accused lent Anderson money is not disputed. Nor is our reading and interpretation of the text of the affidavit. The issue is whether, when the accused had Anderson sign the affidavit, he regarded the affidavit as false and intended to use it in a manner constituting dishonesty, fraud, deceit, or misrepresentation as those terms are used in DR 1-102.

The Bar must prevail on this issue by clear and convincing evidence. The majority opinion proceeds to recite two possible “defenses.” It says that “apparently” the accused’s defense before the Trial Board was that he loaned the money without a prior agreement to do so. It then says that in this court, the accused’s brief shifts to another explanation: that the affidavit was meant to deny that the accused had agreed to make loans against the proceeds of Anderson’s injury claim, as recited in the receipt prepared by Jarvis Black.

The accused was represented by different counsel before the trial and disciplinary boards and before this court, and it is true that they offered alternative explanations of the affidavit. But the question is not one of alternative “defenses,” as the majority would have it. The question is not what we consider as the more plausible reading of a document but whether the Bar proved what the accused meant to have Anderson swear to when he prepared the affidavit. That must be determined from the record, not from the arguments of counsel.

The accused’s answer to the Bar’s complaint did not deny obtaining the affidavit from Anderson and did not deny lending her money for personal expenses. It denied the falsity of the affidavit and the accused’s knowledge of any falsity. Clearly the issue framed by the answer was not what the affidavit said but what the accused meant when he prepared it.

The Bar called the accused as a witness. The direct examination took him through the evidence of the loans and their repayment. The accused testified that his agreement with Mrs. Anderson was that she would repay them out of her monthly income, PIP coverage, and insurance coverage provided by her employer. Much of the testimony related primarily to the charges under DR 5-103. On the existence of an agreement, the accused was asked:

“Q. There is no question in your mind that you had an agreement with Deonna Anderson, that she would repay the loans?

“A. No question whatsoever.”

The accused was later recalled for direct examination by his own counsel. He was asked:

“Q. Mr. Brown, that’s the Affidavit that you prepared. My question to you is, do you now know or have you ever known that that Affidavit was false in any respect?

“A. No. I’ve never had any information to the effect that any part of it was false.”

Counsel for the Bar asked no questions on this point. No further attempt was made to pursue why the accused believed that the affidavit was not false in any respect. He was never asked to explain what he meant. The record shows no inquiry and no direct testimony concerning the accused’s understanding of the affidavit or his intentions either at the time the affidavit was prepared or at the time of the hearing. This is left entirely to inference.

From this record, the majority would infer that the accused induced his client to swear to a deliberately false affidavit with the intent to head off an investigation by the Bar into the facts asserted in the Jarvis Black receipt. Conceivably a lawyer might choose the much greater risk of submitting an outright and potentially criminal lie in the belief that it would end an investigation into a relatively less serious disciplinary charge. But the likelihood that an experienced lawyer with no known record of unethical behavior would do so is not so great as to make the inference compelling. Other inferences are possible. When the accused testified that he and his client had agreed as to the repayment of his loans but that nonetheless the affidavit was true, he must have had some explanation in mind. The affidavit read, in full:

“1. I make this affidavit to clear up and to deny a statement in a receipt I gave Jarvis Black when I picked up my file in order to take the case to Ray G. Brown. Mr. Black handed me a paper telling me it was a receipt for the file and without reading it I signed it. Today I read it for the first time. The second paragraph of the statement is absolutely untrue.

“2. I wanted Mr. Brown to handle my case because for about 25 years he has been my father’s attorney, he has represented my mother in three cases and about three years ago he handled an item for me arising out of an automobile accident. At no time was there any agreement between me and Mr. Brown that he would lend money to me for personal needs and expenses or for any other purpose.”

It was prepared specifically as a denial of the statement in the receipt on which the Bar’s investigation rested, which was that the accused “agreed to loan me money for my personal needs and expenses to be repaid from the proceeds of the recovery in the above claim for damages.” Perhaps at the hearing the accused meant that he intended the affidavit to deny that there was an agreement to lend the client money in return for transferring her case to his office, or to lend money to be repaid from or otherwise related to the proceeds of her claim, or that there was any agreement about loans at the time of the transfer. The accused was not asked, and we do not know.

These may not be convincing or even probable interpretations of the words of the affidavit, but to repeat, the present issue is not what meaning we would give those words. The question is whether the accused knew them to be false and intended to use them to deceive the Oregon State Bar. That was the Bar’s burden to prove. But the Bar’s examination of the accused at the hearing did not pursue the question of his understanding of the affidavit then or at the time he prepared it, though he continued to deny that the affidavit was false. The evidence that the accused knew the affidavit to be false must be clear and convincing before he can be found guilty of violating the disciplinary rules. From the record made at this hearing, the inference that he knew and intended the falsehood may be one plausible inference, but it is not clear and convincing. The trial board, which heard the testimony, did not draw that inference.

On this record, the court should not find the accused guilty of the second cause of the Bar’s complaint.

Linde, J. and Roberts, J., join in this dissenting opinion.

1 See also ORS 162.075:

“(1) A person commits the crime of false swearing if he makes a false sworn statement, knowing it to be false.

“(2) False swearing is a Class A misdemeanor.”