S056148, Opinion — In re Smith

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Argued and submitted May 13, accused suspended from practice of law for period
of 90 days, commencing 60 days from date of decision July 15, 2010

In re Complaint as to the Conduct of
FREDERICK T. SMITH,
Accused.
(OSB 07-53; SC S056148)
236 P3d 137

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536

In re Smith

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CJS, Attorney and Client § 78.

# En Banc

On review of the decision of a trial panel of the
Disciplinary Board.

Frederick T. Smith argued the cause and filed the briefs in
propria persona.

Mary A. Cooper, Assistant Disciplinary Counsel, argued
the cause and filed the brief for the Oregon State Bar.

# PER CURIAM

The accused is suspended from the practice of law for a
period of 90 days, commencing 60 days from the date of this
decision.

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In re Smith

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# PER CURIAM

In this lawyer disciplinary proceeding, the Oregon
State Bar charged Frederick T. Smith (the accused) with four
violations of the Oregon Rules of Professional Conduct (RPC)
in connection with his representation of a client, Rochelle
Leveque, in 2005. Specifically, the Bar alleged that the
accused violated RPC 3.1 (taking action on behalf of a client
with no nonfrivolous basis); RPC 4.1(a) (making a false state-
ment of material fact or law to a third person in the course of
representing a client); RPC 8.4(a)(2) (committing a criminal
act that reflects adversely on a lawyer's honesty, trustworthi-
ness, or fitness as a lawyer in other respects); and RPC
8.4(a)(3) (conduct involving dishonesty, fraud, deceit, or mis-
representation that reflects adversely on the lawyer's fitness
to practice law). Following a hearing, a trial panel of the
Disciplinary Board concluded that the accused had violated
the rules as alleged and suspended the accused for 90 days.

The accused seeks review pursuant to ORS 9.536(1)
and Bar Rule of Procedure (BR) 10.1, challenging the find-
ings and conclusions of the trial panel with respect to each
alleged violation. We review bar disciplinary matters
de novo. ORS 9.536(2); BR 10.6. The alleged misconduct must
be proved by clear and convincing evidence. BR 5.2. For the
reasons that follow, we conclude that the accused violated the
four rules listed above. We also conclude that the accused
should be suspended for 90 days.

# I. FACTUAL BACKGROUND

The charges against the accused arise out of his
advice to Leveque and his conduct in connection with a dis-
pute between Leveque and her employer, The Hemp &
Cannabis Foundation (the corporation),1 which operated a
clinic that helped patients register for the Oregon Medical

1 As described in greater detail in the text, around the time of the events at
issue in this proceeding, the corporation failed to file required reports with the
Secretary of State's office and therefore was "administratively dissolved" under
ORS 65.651 for a period of several months. During that time, a third party regis-
tered the name "The Hemp and Cannabis Foundation" under Oregon's assumed
business name statute and incorporated a different nonprofit corporation using
that name. Because the third party had acquired the right to that name, in January
2006 the corporation changed its name to "THCF."

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Marijuana Program. In brief, Leveque, who had been asked
to leave the clinic premises in early October 2005 due to an
issue with another employee-and who had not thereafter
returned to work-entered the clinic with several other indi-
viduals before business hours on November 14, 2005, and
attempted to physically take over management of the clinic.
The accused also came to the clinic that morning, in the
course of his representation of Leveque, and participated in
the events as described below. Eventually, after the corpora-
tion's attorney and the police arrived, the accused, Leveque,
and the others who had come with Leveque left.

Many of the facts were disputed during the hearing,
and the trial panel (and this court) faced the added difficulty
that Leveque died before the hearing and did not testify.
Nevertheless, the trial panel generally found the facts as
alleged by the Bar.2 Although the accused correctly identifies
certain factual errors in the trial panel's opinion, based on
our de novo review, the findings that we make are consistent
with most of the trial panel's findings. We first describe the
context of the event that led to the Bar's charges and then, in
discussing each alleged violation, we set out additional facts
related to that violation. Except as otherwise noted, we find
each of the facts stated below by clear and convincing
evidence.

The accused met Leveque in 2004 when he became a
patient at the clinic while Leveque was employed there. In
2005, Leveque asked the accused for legal advice about diffi-
culties that she was having with her employer and Paul
Stanford, who ran the clinic and several similar clinics in
other states. The accused agreed to represent Leveque.
Although the parties disagree about Stanford's exact position
with the corporation in 2005, it is undisputed that he was the
sole incorporator of the corporation when it was established
in 1999, that an October 2005 printout from the Secretary of
State's online business names registry identified him as pres-
ident, and that, at the time of the events at issue here,

2 The public member of the trial panel agreed with the panel's findings but
included an additional statement of his views in the trial panel's opinion. The pub-
lic member was more skeptical of the accused's veracity than the other members.

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employees of the corporation (including Leveque) considered
him to be in charge of the corporation's business.

On October 7, 2005, as noted above, the clinic man-
ager asked Leveque to go home. She attempted to file an
unemployment claim, although she told the accused that she
was uncertain whether she had been fired. Over the next
month, Leveque did not return to work at the clinic; however,
she was apparently attempting to get back (or retain) her job
and still had a key to the clinic.

Meanwhile, the accused contacted Ann Witte, the
corporation's attorney, to attempt to resolve Leveque's
employment dispute. Leveque also had a number of concerns
about the way the corporation was being run by Stanford-
including whether revenues were being appropriately
accounted for, whether corporate assets were improperly
being used to advocate for marijuana legalization, and other
corporate governance issues-and the accused advised
Leveque in connection with those issues. As part of his legal
work for Leveque, the accused researched the corporation's
status.

We pause briefly to discuss the law regarding the
administrative dissolution of nonprofit corporations, because
it relates to the accused's position that he gave sound legal
advice and that he relied in good faith on information that he
had received from the Secretary of State's office. A nonprofit
corporation, like the corporation here, that fails to file an
annual report (or to take certain other required actions) may
be dissolved by action of the Secretary of State if it does not
correct the grounds for dissolution after receiving notice of its
deficiencies. See ORS 65.647 (describing grounds for admin-
istrative dissolution); ORS 65.651 (describing procedure for
administrative dissolution). A corporation that is adminis-
tratively dissolved "continues its corporate existence but may
not carry on any activities except those necessary to wind up
and liquidate its affairs." ORS 65.651(3). However, within
five years of the dissolution, a corporation may apply for
"reinstatement," which, if allowed, relates back to the date of
the administrative dissolution, "and the corporation resumes
carrying on its activities as if the administrative dissolution

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had never occurred." ORS 65.654(1), (3). (Moreover, the five-
year reinstatement deadline can be waived by the Secretary
of State for "good cause." ORS 65.654(4).) Expert testimony
at the disciplinary hearing established that it is common for
nonprofit corporations to fail to file required reports or
notices, to be administratively dissolved, and then to be rein-
stated. Indeed, the corporation here has been administra-
tively dissolved and reinstated at least three times.

In researching the corporation's status, the accused
obtained a certificate dated October 31, 2005, from the
Secretary of State, which stated that the corporation had
been "administratively dissolved" for more than five years.
That certificate, however, was inaccurate. The person who
prepared the certificate inserted the original date of incorpo-
ration (August 19, 1999) in the certificate as the date of dis-
solution, rather than the actual date of the most recent
administrative dissolution (October 14, 2005), thus incor-
rectly indicating that the dissolution had occurred more than
five years before the date of the certificate. In fact, the
Secretary's business names registry, available to the public
through the Secretary's website, shows (accurately) that the
corporation had been dissolved for less than a month on
October 31, 2005, and therefore easily could have been rein-
stated. As discussed further below, the accused maintains
that he did not check the website and did not know, at the
time of the events that led to this proceeding, that the certif-
icate that he had obtained from the Secretary of State was
inaccurate.

The accused also claims that in November 2005 he
believed-because he believed that the corporation had been
administratively dissolved for more than five years, and
because he had found no records indicating that Stanford
was an officer or director of the corporation-that Stanford
had no legal authority within the corporation and that he had
improperly "operated it as though it was his personal asset."
The accused explained to Leveque, however, that she "had no
claim against the corporation because she had no standing."
He told her, "the only route that you can take here is to go
through the attorney general." The accused and Leveque

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agreed that the appropriate course for her to raise her con-
cerns about the governance of the corporation would be to file
a complaint with the Attorney General.

On November 9, 2005, when Witte had not
responded to the accused's attempts to contact her, the
accused sent Witte a letter discussing Leveque's employment
issue and her complaints about Stanford's running of the cor-
poration. He noted that Leveque's "route to right the wrongs
which have occurred on the former leader[']s watch is to file a
complaint with the Oregon Attorney General's office." He
stated that he was "very familiar with the process" and that,
after a complaint is filed, the Attorney General "issues an
immediate Cease and Desist Order and enforces that order."
The accused informed Witte that if she did not contact him by
November 15, he would file a complaint with the Attorney
General.

After sending the November 9 letter, the accused
met with Leveque. According to the accused, once Leveque
saw the threat to go to the Attorney General in writing, she
"freaked out." Leveque was concerned that the Attorney
General might shut down the clinic and that, as a result,
thousands of patients would not be able to get access to med-
ical marijuana. The accused told Leveque that he could not
assure her with certainty that the Attorney General would
not shut down the clinic if he filed the complaint.

According to the Bar, the accused then advised
Leveque that another option would be to go to the clinic, use
her key to enter before business hours, and physically take
over. The accused claims, however, that Leveque decided on
her own that she would use her key to open the office and
attempt to take over management of the clinic. He then
advised her that she had "equal rights with Mr. Stanford" to
run the clinic and that he could defend her from criminal or
civil actions that might arise out of an attempted takeover.

On November 14, 2005, as noted, Leveque and some
other individuals (including a nurse, a doctor, a computer
technician, and a locksmith) arrived at the clinic before it
opened and before any employees were there. Leveque used
her key to let them in. The locksmith began changing the
locks, and others attempted to begin working on the clinic's

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computers. The accused also came to the clinic that morning,
although he states that he came separately from Leveque.
The first employee of the clinic to arrive was Kim Murphy,
whose job was to open the clinic for business. Murphy testi-
fied that Leveque, her associates, and the accused were
inside the clinic when she arrived at about 7:45 a.m. When
Murphy asked Leveque what was going on, Leveque told her,
"We're taking over the clinic." Other clinic employees who
arrived testified that Leveque made similar statements to
them. At one point, Leveque began taking patient schedules
and placing them in her bag.

At least two clinic employees, office manager Janus
Brown and clinic administrator Scott Carr, told Leveque and
the accused to leave. They refused. The accused maintains
that he believed at that time that the lease was in the corpo-
ration's name and that, because he believed that Stanford
had no legal authority to run the corporation, neither
Stanford nor those working for him had any right to direct
them to leave the premises.

At some point, a clinic employee called the police.
According to police records, the initial call came at 9:32 a.m.,
and the first police officers arrived at the scene at 9:37 a.m.
A clinic employee also phoned Stanford, who was in Hawaii;
Stanford phoned Witte. Witte arrived at the clinic at about
the same time as the police.

According to the Bar, the accused told clinic employ-
ees and the police that he and Leveque had a court order or
some written authorization from the Attorney General to be
there. According to the accused, he said only that he had a
complaint letter that he had drafted to send to the Attorney
General. He claims that he showed the complaint letter to the
police and Witte and told them that he was going to go to the
Attorney General the following day if Leveque's issues could
not be resolved.

The police attempted to resolve the dispute.
Sergeant Kim Keist understood that Leveque believed that
the clinic was not being properly operated and that there was
a disagreement over who had the right to run the clinic. It
was her view at the time, which she explained to Leveque
and the accused, that this was a civil dispute that would have

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to be resolved in court and that Leveque-because she had
"walked away from [the clinic]"-was not authorized to enter
the clinic and take it over. In the meantime, someone had
contacted the landlord, who faxed the lease agreement to the
clinic. The lease showed the corporation as the lessee and
Stanford as the "guarantor." After the accused saw the lease,
he advised Leveque and her associates to leave, and they all
left the premises. The police left the scene at 10:27 a.m.

# II. ALLEGED VIOLATIONS

## A. RPC 3.1

The Bar argues that the accused violated RPC 3.1
when he told Leveque that (1) she was legally entitled to take
over the clinic and (2) she was legally entitled to enter the
clinic's premises when it was closed to the public. Indeed, the
Bar suggests that the accused knew in advance that Leveque
intended to try to take over the clinic and that he assisted in
that effort, also in violation of RPC 3.1. RPC 3.1 provides:

"In representing a client or the lawyer's own interests, a
lawyer shall not knowingly bring or defend a proceeding,
assert a position therein, delay a trial or take other action on
behalf of a client, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of
existing law, except that a lawyer for the defendant in a
criminal proceeding, or the respondent in a proceeding that
could result in incarceration may, nevertheless[,] so defend
the proceeding as to require that every element of the case
be established."

(Emphases added.)

Although the Bar and the accused focus on whether
the accused's legal advice to Leveque had a nonfrivolous
basis, we note that the Bar did not charge the accused with
failing to "provide competent representation to a client," in
violation of RPC 1.1. The text of RPC 3.1 refers not to legal
advice, but to a lawyer's "action on behalf of a client." The
word "action," in this context, appears to mean "a thing done
: DEED." See Webster's Third New Int'l Dictionary 21 (una-
bridged ed 2002) (defining "action"). Moreover, the rule uses
the phrase "other action on behalf of a client," in contrast to

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the "actions" mentioned earlier in the rule, viz., "bringling] or
defend[ing] a proceeding, assert[ing] a position therein[, or]
delay[ing] a trial." RPC 3.1 (emphasis added). Giving legal
advice to a client is "a thing done," a "deed." So is appearing
with a client at premises over which the client believes she
has a right to assert control and acting with and on behalf of
the client in discussions with other persons on the premises
and with police. We conclude that the accused's advice to
Leveque and his conduct on November 14, 2005, in the course
of representing her were "action[s]" within the scope of RPC
3.1. The pivotal factual issue, then, is whether defendant
took the actions alleged by the Bar. If he did, the pivotal legal
issue is whether there was a nonfrivolous basis in law or fact
for the accused's actions.

As to the factual dispute, the accused argues that he
did not advise Leveque that she had the right to take over the
clinic or to enter the premises before the clinic was open to
the public. Instead, he argues, the actions that Leveque took
on November 14, 2005, were on her own initiative; he advised
her only that she had as much right as Stanford to run the
clinic and that he thought that he could defend her in any
resulting civil or criminal proceedings if she chose to attempt
to take over the clinic.3 He claims that, based on his under-
standing of the facts when he gave the advice (including the
legal status of the corporation), his advice was legally sound.
He also appears to argue that, even if he had advised
Leveque that she had a right to take over the clinic, that
advice would have been sound as well. He asserts that the
legal doctrines of "choice of evils" and "self-help" support his
position.

The Bar's theory that defendant assisted Leveque in
planning to take over the clinic is plausible and is supported
by some circumstantial evidence. Nevertheless, in the
absence of testimony from Leveque, and given the accused's

3 Before the trial panel, the accused offered different versions of events. At one
point, he claimed that he did not know that Leveque was going to attempt a take-
over; at another, he admitted that he knew and advised against it, but that he could
not stop her. In a letter to the Bar during its investigation of the case, the accused
wrote, "I then arranged for my client to meet me on November 14 at the clinic to try
to catch Mr. Stanford and tell him that we felt constrained to either complain to the
Attorney General's Office or take over the clinic with new management."

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denials, we do not find by clear and convincing evidence that
the accused worked with Leveque in advance to plan the
attempted "takeover." That said, clear and convincing evi-
dence does support the Bar's contentions that (1) the accused
appeared at the clinic early on the morning of November 14
in the course of his representation of Leveque and asserted to
Witte and Officer Keist that Leveque had the same right to
operate the clinic as did Stanford and therefore had the right
to take over physical control of the clinic, and (2) the accused
previously had told Leveque that she could assert the
defenses of "choice of evils" and "self-help" in response to
any civil or criminal proceedings that might arise if she
attempted to take over the clinic.

We turn to the legal issue, whether the accused made
those statements and gave that advice without "a basis in law
and fact for doing so that is not frivolous." Id. We conclude
that he did.

Even if the accused's advice that Leveque and
Stanford had an "equal" right to operate the clinic had a non-
frivolous basis in law or fact, that nevertheless would not jus-
tify his position that Leveque could use "self-help" to take
physical control of the clinic's operations or the accused's par-
ticipation in her efforts to do just that. Both the Bar's and the
accused's experts agreed that the nonprofit corporation laws
do not give an employee any legal authority to walk in and
take over an operating nonprofit corporation, even if the cor-
poration has been administratively dissolved for more than
five years. Although certain statutes authorize "self-help"
remedies in some contexts, see, e.g., ORS 79.0609(2)(b)
(secured party's right to self-help under Uniform Commercial
Code), the accused cites no statute or case that supports his
contention that Leveque, as a current or former employee of
the clinic, was authorized to enter the clinic and claim that
she was "taking over" because she disagreed with various
aspects of the way the clinic was being operated. Further, the
accused has not demonstrated that he acted in furtherance of
a "good faith argument for an extension" of the self-help rem-
edies that are permitted, in certain limited circumstances,
under current law. See RPC 3.1 (defining "frivolous").

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The accused also argues that the "choice of evils"
doctrine supports his advice to Leveque and his and
Leveque's conduct, although the precise nature of his argu-
ment is unclear. He appears to be attempting to demonstrate
that his statement that he could defend Leveque from a tres-
pass action for entering the clinic before business hours was
not frivolous. He also appears to argue that the choice of evils
defense applies to Leveque's attempt to take over the clinic.

In describing the defense, the accused cites Black's
Law Dictionary, which defines "necessity" as "[a] privilege
that may relieve a person from liability for trespass or con-
version if that person, having no alternative, harms another's
property in an effort to protect life or health." He argues that
Leveque was attempting to "protect life or health" by taking
over the clinic, because she believed that, if she complained to
the Attorney General, he would shut down the clinic and the
patients would have no way to get their medical needs met.
To state the accused's argument is to refute it. Leveque had
an "alternative"-not complaining to the Attorney General.
Moreover, even if she had complained to the Attorney
General, the accused does not indicate why Leveque would
have been justified in believing that the Attorney General
would act in a way that would harm "life or health" and why,
as a result, her only alternative was to trespass and attempt
to take over the clinic.4

The accused also cites two cases-La Grande/
Astoria v. PERB, 281 Or 137, 576 P2d 1204 (1978), and
Sizemore v. Myers, 327 Or 456, 964 P2d 255 (1998)-that he
claims demonstrate "the breadth that Oregon courts apply to
this concept of choice between competing values." In
La Grande / Astoria, the court noted that competing policies

4 In this court, the accused makes clear that he is not relying on ORS 161.200,
which codifies "choice of evils" as a defense to a criminal prosecution. Under that
statute, the defense is available only when illegal conduct is necessary to avoid an
imminent injury and "[t]he threatened injury is of such gravity that, according to
ordinary standards of intelligence and morality, the desirability and urgency of
avoiding the injury clearly outweigh the desirability of avoiding the injury sought
to be prevented by the statute defining the offense in issue." The accused could not
justify Leveque's conduct using that statute; any harm caused by the Attorney
General shutting down the clinic was not "imminent." Indeed, as of the time of the
attempted takeover of the clinic, neither the accused nor Leveque had had any con-
tact with the Attorney General at all regarding the corporation.

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advanced by state and local governments "must often involve
a choice among values," and then noted that "[s]uch choices
are the essence of political, not judicial, decision." 281 Or at
148. The accused claims that that "choice among values" is
"directly analogous to the [a]ccused's dilemma when navigat-
ing the uncharted waters of non-profit corporation law."

Sizemore involved a challenge to a ballot title
explanatory statement composed by a committee directed by
statute to prepare such a statement. In determining that that
statute did not require the explanatory statement to explain
the effect of the measure, the court examined the statute's
legislative history. The court concluded that that history
showed that "the requirement that the explanatory state-
ment committees explain such effects left divided committees
with a choice of two evils-either have an acrimonious debate
concerning the potential effect of a measure or disobey the
law and omit the effect from the explanatory statement alto-
gether." Sizemore, 327 Or at 466 (first emphasis in original;
second emphasis added).

We are not persuaded. Neither LaGrande / Astoria
nor Sizemore has any bearing on the accused's claim that the
positions he took in the course of representing Leveque were
not frivolous. They were.

The accused claims that, to the extent that he is
incorrect in his legal conclusions, he believed, when advising
Leveque and acting on her behalf, that those conclusions
were correct. We find, however, that the accused knew that
the positions he took in the course of representing Leveque
were frivolous. First, the accused's claim is undermined both
by his advice to Leveque that her only redress for any con-
cerns that she had about the corporation was to seek the
assistance of the Attorney General and by his letter to Witte,
in which he made a similar statement. Second, as discussed
in greater detail below, on the morning of November 14, the
accused lied to various individuals at the clinic, telling them
that he had some written authorization permitting Leveque
and her associates to take over the clinic. That supports the
Bar's position that the accused knew that, without some such
authorization, he and Leveque had no legal right-self-help
or otherwise-to take over the clinic. Finally, the accused has

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practiced law in Oregon for more than 40 years, has substan-
tial experience in securities and corporate litigation, and has
some experience working with nonprofit corporations. He is a
sophisticated lawyer with extensive experience. We find that
the accused knew that his advice to his client-that she had
some legal basis for her attempt to take control of the clinic's
operations-was frivolous.

## B. RPC 4.1(a) and RPC 8.4(a)(3)

The Bar alleged that, during the attempted take-
over, the accused told various people that he had written
authorization from some government entity to take over
the clinic. The trial panel agreed and concluded that the
accused had violated RPC 4.1(a) and RPC 8.4(a)(3). RPC
4.1(a) provides:

"In the course of representing a client a lawyer shall not
knowingly:

"(a) make a false statement of material fact or law to a
third person[.]"

RPC 8.4(a)(3) provides:

"It is professional misconduct for a lawyer to:

***** *

"(3) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation that reflects adversely on the
lawyer's fitness to practice law[.]"

The accused responds that the Bar did not demon-
strate that he violated either rule because it failed to prove,
by clear and convincing evidence, that he had told anyone
that he or Leveque had written authorization to take over the
clinic. We disagree. Two clinic employees who were present
at the time of the attempted takeover testified that the
accused told them that he had authorization from the
Attorney General or a court order to take over the clinic.

First, Janus Brown, the clinic manager, in describ-
ing the attempted takeover, testified as follows:

"So when [the accused] addressed me by my name I just
said, What is going on and how come you can do this?

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"And he said something about the attorney general,
like they've got permission to do this. And I was just floored,
and I immediately went to my desk * * * and called Paul
[Stanford] * * *.

"And I'm going, Oh, my god, Paul, I don't know what's
going on but, you know, she's got a lawyer here. And he
said, you know, in essence, what it seemed to me that he
had permission from the attorney general to be in and I
don't know what's going on."

Scott Carr, a clinic administrator, testified that
when he asked the accused to leave during the attempted
takeover, the accused "stepped forward and said that he had
a court order to be there[.]" When asked if the accused
showed him the order, Carr testified,

"No. He was kind of, you know, fondling his * * * briefcase
as if he, you know, had * * * you know, he held it up halfway
\* \* \* you know, as if he was prepared to produce it, but I
didn't know what he was talking about."

He also testified,

"He had a leather briefcase as I remember. And when I had
asked him to leave, he stepped forward and held it up half-
way in front of his torso and said, I have a court order, I
believe he said, from the attorney general to be here."

In addition, Witte similarly testified that she heard the
accused state or imply to the police that he had an order from
the Attorney General authorizing Leveque to take control of
the clinic.

Although the accused cross-examined the witnesses
at length as to the specific persons to whom the accused alleg-
edly made his remarks and whether he referred to a "court
order" or to some official document from the Attorney
General, the three witnesses all clearly testified that they
heard the accused state that he had a government document
that authorized Leveque's actions.5 We find that the Bar

5 As noted previously, the accused testified that those witnesses were wrong
and that he had stated only that he had a letter that he had written to the Attorney
General regarding the alleged irregularities at the corporation. Based on the con-
sistent testimony of two of the clinic's employees and the clinic's outside counsel,
we find those witnesses, rather than the accused, to be credible on this point.

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proved by clear and convincing evidence that the accused
made such statements. We also find that the statements
were false. The accused did not at that time (or at any later
time) have any official authorization from the Attorney
General or a court for Leveque or the accused to take control
of the clinic or any other aspects of the corporation's
operations.

A lawyer violates RPC 4.1(a) if, in the course of rep-
resenting a client, he or she knowingly makes a "false state-
ment of material fact." A lawyer violates RPC 8.4(a)(3) if he
or she engages in conduct involving "dishonesty, fraud, deceit
or misrepresentation that reflects adversely on the lawyer's
fitness to practice law." Here, the Bar contends that the
accused engaged in conduct involving "misrepresentation."
The Bar therefore can demonstrate both violations by dem-
onstrating that the accused made a material misrepresenta-
tion of fact. See In re Kluge, 332 Or 251, 255-56, 27 P3d 102
(2001) (describing requirements for violation of former rules).
A fact is material if hearing that fact "would or could signifi-
cantly influence the hearer's decision-making process." Id. at
255.

The accused argues that, even if he made the state-
ments described above, he did not engage in "conduct involv-
ing * * * fraud [or] deceit" under RPC 8.4(a)(3). He maintains
that the terms "fraud" and "deceit" are used "in their tortious
sense" in the disciplinary rules. See In re Brown, 326 Or 582,
595, 956 P2d 188 (1998) (so noting). He argues that the Bar
must therefore prove each element of the torts of fraud and
deceit, including that the persons to whom the representa-
tion was made relied on the representation. See id. (describ-
ing elements). The accused contends that none of the employ-
ees relied on his alleged misrepresentation. Instead, they
"insisted that the [a]ccused and his client depart [and] called
the police," exactly as they would have if he had not made the
misrepresentation.

Although this court did state in In re Brown that
"fraud" and "deceit" were used in their tortious sense in
former DR 1-102(A)(3), it also noted that a lawyer can violate
the rule by engaging in "dishonest" conduct and that the Bar
need not prove fraud or deceit to show a violation of the rule.

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The court explained the meaning of fraud and deceit because,
"if the accused did violate the rule, it may be important to
place a specific name on the conduct, for purposes of deter-
mining the appropriate sanction." Id. Here, the Bar argues
that the accused engaged in conduct involving "misrepresen-
tation" (not conduct involving "fraud" or "deceit"). Proof of
reliance is not necessary to establish that the accused
engaged in conduct involving misrepresentation. Kluge, 332
Or at 256.

We conclude that the accused made statements to
several individuals that he had an order or some other writ-
ten authorization from the Attorney General or a court per-
mitting the takeover. Those statements were false and the
accused knew them to be false. The statements were
intended to convince the employees of the corporation or the
police that Leveque was authorized to take over the clinic
and therefore that they should permit her to do so. They were
material.6 The accused therefore violated RPC 8.4(a)(3) and
RPC 4.1(a).

## C. RPC 8.4(a)(2)

The Bar argues that the accused violated RPC
8.4(a)(2) by (1) trespassing at the clinic and (2) advising
Leveque to trespass at the clinic. A lawyer violates RPC
8.4(a)(2) when he or she "commit[s] a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects[.]" The accused main-
tains that neither he nor Leveque trespassed at the clinic.7

ORS 164.245(1) provides:

"A person commits the crime of criminal trespass in the
second degree if the person enters or remains unlawfully in
a motor vehicle or in or upon premises."

An individual "enters or remains unlawfully" if he or she
"enter[s] or remain[s] in or upon premises when the prem-
ises, at the time of such entry or remaining, are not open to

6 The accused makes no argument that, if proved, his conduct did not "reflect[ ]
adversely on [his] fitness to practice law," under RPC 8.4(a)(3).

7 The accused does not distinguish between his alleged trespass and his partic-
ipation in Leveque's alleged trespass.

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the public or when the entrant is not otherwise licensed or
privileged to do so." ORS 164.205(3)(a). Although the Bar
stated in its brief that the accused arrived at the clinic during
"normal business hours," and thus when the premises were
"open to the public," we disagree. Testimony before the trial
panel demonstrated that the accused arrived before
7:45 a.m .- when Leveque and her associates were at the
clinic and before the arrival of the clinic employee who was to
open the clinic for business that day.

The accused argues, however, that Leveque was
"otherwise licensed or privileged" to enter because she had a
key that still worked and that no one had asked her to return.
Because the accused entered the clinic with Leveque, then,
he, too, was "licensed or privileged" to enter.

The Bar argues that Leveque's permission to enter
by way of her key was limited to use as an employee of the
clinic. It argues (1) that Leveque was no longer an employee
at the time she attempted to take over and (2) that, even if
she could be considered an employee, she did not have per-
mission to use the key "for purposes hostile to" the corpora-
tion. We agree with the Bar that Leveque's permission to use
her key to enter the clinic was limited and that she acted out-
side of the scope of her "license or privilege" when she entered
the clinic's premises before business hours on November 14,
2005, to execute her plan to take over the clinic's operations.
Because Leveque did not have authority to use her key to
enter the clinic for that purpose, she also did not have author-
ity to permit the accused to accompany her onto the clinic's
premises for that purpose.

Moreover, we find that the accused knew that
Leveque was not authorized to use her key to enter the clinic
or to grant him entry. See State v. Hartfield, 290 Or 583, 595,
624 P2d 588 (1981) (to prove that a person is "not otherwise
licensed or privileged" to enter, state must prove that "the
person extending the permission or invitation was without
actual authority to do so and that the entrant knew or
believed there was no such actual authority"). The accused
knew that Leveque was engaged in an employment dispute
with the clinic and that she had not been to work at the clinic

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in weeks. Indeed, the accused had issued a demand letter on
Leveque's behalf, and he testified before the trial panel that
he had advised Leveque not to return to work until the prob-
lems with Stanford were resolved. Even assuming that
Leveque remained an employee, the accused knew of her
status at the clinic; he knew that she was not entering
the clinic on the morning of November 14 to perform her
duties as an employee.8 The Bar therefore proved, by clear
and convincing evidence, that the accused committed crimi-
nal trespass when he entered the clinic before business
hours.9

The accused does not dispute that, if he engaged in
criminal trespass, that act "reflects adversely" on his "fitness
as a lawyer." Because the criminal act here was committed
"in furtherance of his legal services," the Bar argues, "[t]he
connection between the criminal conduct and the [a]ccused's
fitness to practice * * * requires no special analysis." We
agree.

We find by clear and convincing evidence that the
accused engaged in conduct that constituted the crime of
criminal trespass in the second degree. Because he did so as
part of his representation of a client, that conduct reflects
adversely on his fitness as a lawyer. The accused violated
RPC 8.4(a)(2).10

" The accused testified before the trial panel that he believed that Leveque was
going to the clinic on November 14, 2005, to open the clinic and perform her normal
duties as an employee. We do not find that testimony credible, however, consider-
ing the accused's conduct on November 14, along with the accused's testimony that
he told Leveque, before the attempted takeover, that he could defend her against
criminal or civil charges arising out of her entry and that he believed that the doc-
trine of self-help could apply to the situation.

9 The accused argues that the Bar was required to prove every element of crim-
inal trespass beyond a reasonable doubt. However, to prove a violation of RPC
8.4(a)(2), the Bar need only prove, by clear and convincing evidence, that the
accused engaged in the relevant conduct and that that conduct constituted crimi-
nal trespass. See BR 5.2 (clear and convincing evidence standard in disciplinary
cases); see also In re Leisure, 338 Or 508, 516, 113 P3d 412 (2005) (noting, under the
predecessor to RPC 8.4(a)(2), that the Bar "must 'establish the criminal act by clear
and convincing evidence' ").

10 The Bar also contends that the accused violated RPC 8.4(a)(2) by the crimi-
nal act of acting as an accomplice to Leveque's criminal trespass. Because we have
already concluded that the accused violated RPC 8.4(a)(2), we do not address that
issue.

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# III. SANCTION

In determining the appropriate sanction, we identify
a presumptive sanction based on "(1) the ethical duty vio-
lated; (2) the lawyer's mental state; and (3) the actual or
potential injury caused" by the conduct. In re Paulson, 346 Or
676, 712, 216 P3d 859 (2009). We then adjust that sanction
based on the presence of aggravating or mitigating circum-
stances. Id. As a final step, we consider whether the sanction
is consistent with Oregon case law. Id. Here, the Bar argues
that the accused should be suspended for "at least" the
90 days that the trial panel imposed. The accused does not
address the issue of the appropriate sanction.

The accused in this case violated the duties he owed
to his client and to the legal system, see American Bar
Association's Standards for Imposing Lawyer Sanctions 4.0,
6.0 (1991) (amended 1992) (ABA Standards) (describing
duties to client and to legal system), when he knowingly pro-
vided frivolous legal advice to Leveque. He also violated his
duties to the public when he engaged in criminal conduct and
made misrepresentations to further that conduct. See ABA
Standard 5.0 (describing duties to public).

We turn to the accused's mental state. A lawyer acts
"knowingly" if he acts with the "conscious awareness of the
nature or attendant circumstances of the conduct but with-
out the conscious objective or purpose to accomplish a partic-
ular result." ABA Standards at 7. With respect to the
accused's advice to Leveque, for the reasons discussed above,
we conclude that the accused "knowingly" took action on
behalf of Leveque that did not have a nonfrivolous basis in
fact or law.11 We also conclude that the accused knowingly or
intentionally committed trespass in the second degree. As
discussed previously, he knew that Leveque had been asked
to leave the clinic premises following a dispute with another
employee. Although Leveque still had her key to the clinic

11 The trial panel opined that the accused's mental state with respect to this
violation was "negligent," because he continued to maintain that his advice was
justified. However, RPC 3.1 specifically identifies "knowingly" as the mental state
required to prove a violation of that rule. For the reasons stated in the text, we
believe that the Bar proved by clear and convincing evidence that the accused acted
"knowingly" when he gave the advice he did.

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and her employment status was unclear, the accused knew
that she was not authorized by Stanford or any other corpo-
rate official to use her key to enter the clinic for the purpose
of taking it over. Finally, we agree with the Bar that the
accused acted intentionally when he misrepresented to clinic
employees and police that he had a document from the
Attorney General or a court order authorizing Leveque to
take over control of the clinic.

Turning to the injury caused by the accused's con-
duct, we conclude that the accused caused actual injury and
created a risk of potential injury. First, his advice created the
risk of potential injury to Leveque. Acting at least in part on
the accused's advice, Leveque could have been (although she
was not) prosecuted for trespass. In addition, she lost any
chance to return to her employment at the clinic. The
accused's advice, and his participation with Leveque when
she acted on his advice, also created a risk of potential injury
to Leveque and others because of the potential for a physical
confrontation. The accused's misrepresentations, as well as
his other conduct supporting Leveque's efforts, posed a risk of
potential injury to the clinic because they might well have
caused the employees to relinquish control of the clinic to
Leveque, when there was no legal requirement that they do
so. The clinic and its patients also suffered at least some
actual injury, because its business operations were disrupted
for over two hours during the attempted takeover.

The presumptive sanction is suspension. As to the
accused's criminal conduct, suspension is appropriate when a
lawyer "knowingly engages in criminal conduct" that is not
listed in ABA Standard 5.11 (which trespass is not) and "that
seriously adversely reflects on the lawyer's fitness to prac-
tice." ABA Standard 5.12. As to the accused's frivolous
actions, the ABA Standards do not address the sanction for
taking such action outside the context of litigation. RPC 3.1
prohibits both asserting frivolous positions in litigation and
taking other frivolous "action" on behalf of a client. The clos-
est analogy is the ABA standard that provides that a suspen-
sion is appropriate when a lawyer "knowingly violates a court
order or rule, and there is injury or potential injury to a client
or party." ABA Standard 6.22. We find that standard useful
in suggesting, as a preliminary matter, that a lawyer who

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violates RPC 3.1 by knowingly taking action, including advis-
ing a client, that is without a nonfrivolous basis in law or fact,
should be suspended. Finally, regarding the accused's mis-
representation, a reprimand is generally appropriate when a
lawyer knowingly engages in noncriminal conduct involving
misrepresentation. ABA Standard 5.13.

The Bar argues that there are two aggravating fac-
tors: the accused refused to recognize the wrongful nature of
his conduct, ABA Standard 9.22(g); and the accused had sub-
stantial experience in the practice of law, ABA Standard
9.22(i). There is no dispute as to the second factor. As to the
first factor, the accused, in his responses to the Bar's investi-
gation and before the trial panel, continued to assert that he
had given sound legal advice to his client. That was his prin-
cipal defense to the Bar's charges. In our view, the accused's
reliance on those arguments-although unavailing-cannot
be used to enhance the penalty that would otherwise be
imposed for his violations. The Bar also notes three mitigat-
ing factors, which we also find to be present here: the accused
had no prior disciplinary record, ABA Standard 9.32(a);
the accused did not have a dishonest or selfish motive, ABA
Standard 9.32(b); and the accused had a cooperative attitude
toward the disciplinary proceedings, ABA Standard 9.32(e).

We therefore conclude that a suspension of some
term is appropriate in this case. The Bar notes several
Oregon cases that it argues are similar to this one.12 It argues
that the accused's conduct is most similar to that of the
accused in In re Strickland, 339 Or 595, 124 P3d 1225 (2005).
In Strickland, the accused was involved in a dispute concern-
ing the construction of a reservoir across the street from his
mother's (and his) home. The accused staged a disturbance

12 The Bar cites several cases "in which a lawyer has pursued a frivolous claim
to the extent of committing criminal conduct" that resulted in disbarment or a
lengthy sanction. Those cases, however, involved more serious misconduct, more
aggravating circumstances, or both. See, e.g., In re Kluge, 332 Or 251, 27 P3d 102
(2001) (three-year suspension for lawyer who falsely represented that he was a
notary, engaged in the practice of law without PLF coverage, falsely represented to
PLF that he did not require coverage, and failed to withdraw when required to give
testimony prejudicial to client; aggravating factors included pattern of misconduct,
bad-faith obstruction of disciplinary proceeding, refusal to acknowledge wrongful
behavior, and substantial experience; the only mitigating factor was lack of disci-
plinary history).

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between himself and the construction workers and then
called 9-1-1, claiming that the workers had threatened him.
When police arrived, the accused claimed, falsely, that a con-
struction worker had assaulted him. The Bar alleged that the
accused had engaged in criminal conduct reflecting adversely
on his fitness to practice law and in conduct involving dishon-
esty. After noting several aggravating factors (selfish motive,
substantial experience, refusal to acknowledge wrongdoing,
multiple offenses) and mitigating ones (no disciplinary rec-
ord, cooperated with disciplinary proceedings, received other
sanctions in criminal justice system), this court imposed a
one-year suspension. The Bar argues that the accused's con-
duct here was similar to that of the accused in Strickland
because he "unlawfully created a situation that predictably
required police intervention."

Although Strickland bears some similarities to this
case, it involved a lawyer acting with a selfish motive and
with the intent to protect his own interests (and those of his
mother). Moreover, the accused in Strickland clearly initi-
ated the disruptive plan himself and was the principal actor
in the plan, whereas here the accused, based on the facts as
we have found them, was not the instigator of the takeover
plan, although he was a participant in Leveque's effort. We
do not discount the seriousness of the accused's conduct or
the potential for a physical confrontation caused by his
advice, but in fact the matter was resolved quickly and peace-
fully and, so far as this record shows, without later charges of
any kind.

A case involving somewhat similar conduct to that at
issue here is In re Glass, 308 Or 297, 779 P2d 612 (1989). In
Glass, the accused registered an assumed business name for
a fraudulent purpose.13 The court noted that the accused had
acted with a selfish motive but also determined that two mit-
igating factors applied-the accused had acted on the advice
of his lawyer and later recognized that his conduct was
wrongful. There is one important difference between Glass

13 An individual, John Pearce, had filed a construction lien against the accused
and initiated an action to foreclose the lien in the name "John Pearce, dba
Quicksilver Construction Company." Pearce had not registered the name Quicksilver
Construction Company; the accused registered that name to avoid the suit.

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and this case, however. In Glass, the accused had failed to
cooperate with the Bar in the disciplinary proceedings. The
court noted that a 60-day suspension had been deemed
appropriate for similar conduct in In re Hopp, 291 Or 697,
634 P2d 238 (1981) (accused registered an assumed business
name to harass opponent), but determined that the accused's
conduct in Glass was "compounded" by his failure to cooper-
ate, resulting in a 91-day sanction. Glass, 308 Or at 305 n 7.
However, the conduct here is more serious than that in Glass
and Hopp, because the accused engaged in criminal conduct
and his conduct resulted in greater potential injury (police
involvement, risk of physical confrontation).14

In our view, the conduct involved here was more
serious than in Glass and Hopp, but less serious than in
Strickland.15 We conclude, as did the trial panel, that the
appropriate sanction is a suspension of 90 days.

The accused is suspended from the practice of law for
a period of 90 days, commencing 60 days from the date of this
decision.

14 In Glass and Hopp, each attorney registered an assumed business name for
an inappropriate purpose; we note that, in this case, we do not find that the accused
was involved in the third-party's registration of the corporation's name. Instead,
the conduct in Glass and Hopp is analogous to the accused's conduct because here,
as in those cases, the accused attempted to take advantage of the corporation's fail-
ure to maintain appropriate administrative records.

15 In Glass, as noted, the court concluded that the accused's conduct was simi-
lar to the conduct in Hopp and ordinarily would result in a 60-day suspension. The
court imposed a 91-day suspension in Glass because the accused did not cooperate
with the Bar's investigation. Although the conduct here was more serious than that
in Glass, a similar sanction is appropriate, because this case does not involve the
same aggravating factors as in Glass.