S057231, Opinion — In re Newell

396
Argued and submitted January 8, accused publicly reprimanded June 10, 2010
In re Complaint as to the Conduct of
ROBERT D. NEWELL,
Accused.
(OSB No. 07-142; SC 8057231)
234 P3d 967

Cite as 348 Or 396
On review of the decision of a trial panel of the Disciplinary
Board.
Mark J. Fucile, Fucile & Reising LLP, Portland, argued
the cause and filed the briefs for the accused.
Mary A. Cooper, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State Bar.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Linder, Justices.*
PERCURIAM
The accused is publicly reprimanded.
* Walters, J., did not participate in the consideration or decision of this case.

398 	In re Newell
PERCURIAM
In this attorney discipline case, the Bar charged the
accused with violating Rule of Professional Conduct (RPC)
4.2. Generally, that rule prohibits a lawyer from communi-
cating on certain subjects with a person whom the lawyer
knows is represented on those subjects. The trial panel found
that the accused had violated Rule 4.2 and publicly repri-
manded him. 1 The accused has requested review from this
court.
Greenwood Forest Products was in the business of
buying, 	processing, 	and 	selling lumber products. James
Fahey began working as an accountant for Greenwood in
2000. 	While 	working for 	Greenwood, 	Fahey 	embezzled
money from the company and disguised his actions in a
number of ways, including creating fraudulent inventory
accounts.
In 2002, Jewett-Cameron, a lumber manufacturer
and wholesaler, sought to purchase Greenwood, and the two
businesses entered into an asset-purchase agreement. The
agreement required Jewett-Cameron to 	purchase 	all 	of
Greenwood's inventory at cost plus two percent. The transfer
of Greenwood's inventory was scheduled to take place over a
period of time. In an attempt to facilitate the process, the
companies agreed to put Fahey in charge of the books of both
companies. After the final transfer of Greenwood's inventory,
Greenwood claimed that Jewett-Cameron still owed it addi-
tional sums for inventory sales. Jewett-Cameron acceded to
Greenwood's claim and paid the full price that Greenwood
sought.
In late 2003, Jewett-Cameron's auditors discovered
that numerous accounting errors by Greenwood had resulted
in Greenwood overstating its inventory. Jewett-Cameron's
auditors also discovered that Fahey had embezzled money
from both Jewett-Cameron and Greenwood by transferring
funds from the companies' accounts directly into his own per-
sonal banking account. The auditors concluded that Fahey
1 The Bar also charged the accused with violating RPC 4.4(a). The trial panel
did not find a violation of that rule. Because the Bar does not challenge that deci-
sion, we do not discuss that rule.

Cite as 348 Or 396 	399
had altered Greenwood's inventory records, which made it
appear that Greenwood had transferred more inventory to
Jewett-Cameron than it actually had.
Those events gave rise to three legal actions and ulti-
mately this disciplinary proceeding. 	In the first 	action,
Greenwood sued Fahey for conversion. Specifically, upon
being informed of the accounting irregularities and believing
that Fahey was at least partially responsible, Greenwood
brought a civil action against Fahey on September 7, 2004,
for conversion and sought no less than $340,000 in damages
from him. Greenwood moved for summary judgment. The
trial court granted Greenwood's summary judgment motion
and entered a judgment of approximately $370,000 plus
interest against Fahey on May 23, 2005.
In 	the 	second 	action, 	Jewett-Cameron 	sued
Greenwood on March 11, 2005, claiming that it had over-
paid 	Greenwood 	by approximately $820,000 	because of
Greenwood's accounting errors. The accused represented
Jewett-Cameron in that action. The accused testified in the
disciplinary proceeding that Fahey's actions gave rise, in
part, to Jewett-Cameron's claim against Greenwood; that is,
Fahey's actions in embezzling the funds from Greenwood and
overstating its inventory caused, in part, Jewett-Cameron to
pay too much for Greenwood's assets.
The third action arose out of criminal charges that
the state brought against Fahey. Greenwood contacted the
district attorney, who brought criminal charges for theft
against Fahey on April 18, 2005. Fahey retained Andrew Coit
to represent him in the criminal action. On January 18, 2006,
Fahey pled guilty to 10 counts of theft. As part of the plea
agreement, Fahey agreed to cooperate with Greenwood's
efforts to locate missing assets, and the trial court delayed
the sentencing hearing to give Fahey time to carry out his
part of the plea agreement.
Jewett-Cameron's civil action against Greenwood
was set for trial on May 8, 2006. Initially, the accused did not
believe that Fahey's testimony would be needed to prove
Jewett-Cameron's claims against Greenwood. The accused
described it as "one of those situations where, here's a guy
who really is at the center of the action but he's in some

400 	In re Newell
[sense] irrelevant to our case." The accused, however, told his
associate to try to arrange a meeting with Fahey to "see what
he has to say." At that point, Greenwood's civil action against
Fahey had ended. The criminal action against Fahey was still
ongoing, however, because Fahey was awaiting sentencing.
The accused testified that he "knew [that] Coit was repre-
senting [Fahey] in the criminal case and * * * figured that
would be the easiest way to get in touch with him." Accord-
ingly, the accused's associate contacted Coit to discuss meet-
ing with Fahey.
On April 27, 2006, the accused received the following
e-mail from his associate:
"I talked to Fahey's attorney [Coit], who wasn't too
happy to talk with me. He said that Fahey gets sentenced
on Tuesday of next week [May 2, 2006] and is going to the
big house. He is going to talk with Fahey about meeting
with us before then, but said he would require us to waive
any claims against Fahey before we talk to him. I am sup-
posed to call him tomorrow to see if Fahey is even willing to
talk to us."
The accused believed that Fahey would be imprisoned before
trial and, at that point, decided that he did not need to inter-
view Fahey.
On May 1, 2006, Coit moved to continue Fahey's sen-
tencing. On Thursday, May 4, the accused learned that
Greenwood had subpoenaed Fahey to testify in Jewett-
Cameron's 	action 	against 	Greenwood, 	and 	the 	accused
decided that he needed to talk to Fahey before he testified at
trial. The accused's associate attempted to contact Coit so
that they could speak to Fahey. On that day, at 4:54 pm, the
associate sent an e-mail to the accused saying that he had left
a message for Coit but that, given Coit's failure to return his
earlier calls, he did not expect Coit to return his most recent
call. A half-hour later, the associate sent the accused a second
e-mail, confirming that Fahey had appeared in court with
Coit to set over the sentencing hearing in the criminal action
and that Greenwood had subpoenaed Fahey to testify in
Jewett-Cameron's action against Greenwood.
On Friday, May 5, the accused had a subpoena
served on Fahey for a deposition scheduled for 9:00 a.m. on

Cite as 348 Or 396 	401
Saturday, May 6. Fahey received the subpoena at 6:35 p.m.
on Friday, approximately 14 hours before the deposition was
scheduled to begin. Pursuant to ORCP 39, the accused served
Greenwood's counsel with notice of the deposition. The
accused, however, did not attempt to notify Coit that he had
subpoenaed Fahey.
The next morning at Fahey's deposition, the accused
and Greenwood's counsel were present. Coit was not there.
At the beginning of the deposition, Fahey asked to make a
statement and said:
"For the record, I was served yesterday evening at 6:35 p.m.
I have not had a chance to contact my counsel. As there is a
pending criminal case on this in Washington County, any-
thing alluding to any of those areas I will be taking the
Fifth Amendment."
After asking some background questions, the accused began
questioning Fahey about his work at Greenwood.
"[The accused]: 	What process did you see in your role as
senior accountant when corporate inventory was pur-
chased? What paperwork did you see?
"[Fahey]: 	The most I would have seen was an invoice com-
ing in that went into payables.
"[The accused]: 	So an invoice from Jones Lumber for eight
truckloads of raw plywood?
"[Fahey]: 	That's correct.
"[The accused]: 	And if that went someplace to be proc-
essed, how would you know that?
"[Fahey]: 	On this one I'm going to assert my Fifth
Amendment privilege until I've consulted counsel."
The accused then began to ask Fahey numerous questions
about Fahey's criminal case:
"[The accused]: 	Okay. Well, am I correct that you've pled
guilty to several crimes in state court?
"[Fahey]: 	Yes.
"[The accused]: 	Okay. What are those crimes?
"[Fahey]: 	I believe they're theft or aggravated theft.

"[The accused]: 	Ten different counts; right?
"[Fahey]: 	Correct.
In re Newell
"[The accused]: 	And the theft was from Greenwood Forest
Products, Inc.'?
"[Fahey]: 	Yes.
"[The accused]: 	This question I just asked you that you
asserted your Fifth Amendment rights to, isn't that covered
by that plea?
"[Fahey]: 	I can't-I don't know.
"[The accused]: 	All right. So ifl ask you detailed questions
about accounting processes and paperwork and so on for
inventory and accounts payable and accounts receivable at
Greenwood Forest Products, you're going to assert your
Fifth Amendment rights?
"[Fahey]: 	Until I can consult counsel and get a clarifica-
tion, yes.
"(The accused]: 	Okay. Who is your counsel?
"[Fahey]: 	Andrew Coit.
"[The accused]: 	Can you spell the last name please?
"[Fahey]: 	C 0 IT.
"[The accused]: 	And he's located here in Portland?
"[Fahey]: 	That's correct. He has an office in Portland and
an office in Eugene.
"[The accused]: 	And you have not talked to him about this
deposition?
"(Fahey]: 	That is correct.
"[The accused]: 	Have you tried to retain any other counsel
for this deposition?
"[Fahey]: 	No.
"[The accused]: 	Is Andrew Coit the only person who has
represented you in connection with any legal proceedings?
"[Fahey]: 	No.
"[The accused]: 	Who else has represented you?

Cite as 348 Or
"[Fahey]: 	I have been represented by Andrea Davis of
Harrang Long Gary Rudnick.
"[The accused]: 	Anyone else?
"[Fahey]: 	Adam Dean is Andrew Coit's law partner.
"[The accused]: 	And I take it you don't have home phones
for either Adam Dean or Andrew Coit?
"[Fahey]: 	That is correct.
"[The accused]: 	What has Andrea Davis represented you
in connection with?
"[Fahey]: 	A civil case.
"[The accused]: 	That's the case brought by Greenwood
Forest Products against you?
"[Fahey]: 	Correct."
The accused continued, and, in the course of the dep-
osition, repeatedly asked Fahey questions about the amount
of money that Fahey had taken-an issue that was central
both to Jewett-Cameron's lawsuit against Greenwood and
also to the state's criminal charges against Fahey. Fahey
took the Fifth Amendment in response to some of the ques-
tions and expressed concern that his criminal attorney was
not present to represent him at the deposition.
The 	accused 	continued 	asking Fahey 	questions
about the criminal case, but Fahey did not respond to the
questions because he thought the court had issued a protec-
tive order. When the accused asked about the scope of the
protective order, Fahey responded, "I don't know. Without
counsel here I can't answer that." The deposition continued
with the accused asking more questions and Fahey asserting
the Fifth Amendment at various times. Later in the deposi-
tion, Fahey discussed his meeting with Greenwood's counsel
regarding 	Jewett-Cameron's 	action 	against 	Greenwood.
Fahey told the accused that Coit had arranged the interview
and explained that he had had a lawyer present with him at
that meeting.
"[The 	accused]: 	Why 	did 	you 	agree 	to 	meet 	with
[Greenwood's] lawyer in connection with this case?

In re Newell
"[Fahey]: 	Mr. Coit had mentioned to me, had mentioned
that h~ or his firm had been contacted by [Greenwood's
counsel in this civil case]. I was asked ifl would be willing
by Mr. Coit to sit down with [Greenwood's counsel]. I asked
Mr. Coit if there was any advantage or disadvantage for me
to do so. Mr. Coit informed me that since, that his, since he
or Adam Dean would be there, the scope of what we would
discuss would be incredibly limited but with regard to the
fact that it is possible that a letter could have been written
to the judge [in the criminal easel saying at least he [Fahey]
agreed to sit down with us and talk, that it might be within
my benefit to do so. That is all from Mr. Coit to me.
"[The accused]: 	Do you know why your lawyer has refused
to talk to our firm?
"[Fahey]: 	No idea. I had no idea that your firm had even
attempted to contact my attorney."
On Monday, May 8, Coit learned of the deposition and later
moved to seal the deposition transcript. After holding a hear-
ing, the trial court granted Coit's motion. Coit later reported
the accused to the Bar.
The Bar filed disciplinary proceedings against the
accused. In its first cause of complaint, the Bar alleged that
the accused had violated RPC 4.2 because he deposed Fahey
on a subject on which the accused knew that Fahey was rep-
resented in the criminal matter. Alternatively, the Bar
alleged that the accused violated that rule when he deposed
Fahey on a subject on which the accused knew that Fahey
was represented in the civil action between Jewett-Cameron
and Greenwood. In his answer, the accused admitted most of
the allegations in the complaint, including the allegation that
he knew that Fahey had representation in connection with
his criminal prosecution for theft. However, the accused
denied that he knew that Fahey was represented for pur-
poses of the Jewett-Cameron litigation. The accused also
asserted that, under RPC 4.2(b), the deposition was author-
ized by law.
The trial panel found that the accused had violated
RPC 4.2. Specifically, the panel found that the accused asked
questions related to the criminal conduct in violation ofRPC
4.2 and rejected the accused's argument that RPC 4.2 applies

Cite as 348 Or 396 	405
"only if the witness is represented in the same proceeding as
the proceeding in which the deposition was taken." The panel
concluded that that rule covers "instances such as the pres-
ent case in which the [a]ccused knew the witness to be rep-
resented in a pending criminal proceeding but nevertheless
proceeded to interrogate the witness about that subject."
The trial panel also rejected the accused's argument
that the questions fell under the "authorized by law" excep-
tion in RPC 4.2(b). The panel reasoned that "a witness's right
to counsel can[not] be overcome by a deposition subpoena
alone." Alternatively, the panel reasoned that, even if it
could, the circumstances in this case-a Friday evening sum-
mons for a Saturday morning deposition without any notice
to the witness's counsel-did not come within the exception.
After noting that the accused had no prior disciplinary rec-
ord, the panel publicly reprimanded him. The accused sought
review from this court. The Bar did not seek review and does
not contest the trial panel's disposition of this matter.
On review, the accused notes that the trial panel
found that he did not know that Coit represented Fahey in
the civil action between Jewett-Cameron and Greenwood but
that he did know that Coit represented Fahey in the pending
criminal action. In the accused's view, that finding is dispos-
itive. Specifically, the accused argues that RPC 4.2 barred
him from contacting Fahey only if the accused knew that
Fahey 	was 	represented 	in 	the 	action 	between 	Jewett-
Cameron and Greenwood. He contends that, because he did
not know that fact, RPC 4.2 does not apply. The accused
argues alternatively that, even if RPC 4.2 applied, his com-
munication with Fahey came within a specific exception to
that rule for communications "authorized by law." We begin
with the accused's argument that RPC 4.2 only applies if he
knew that Coit represented Fahey in Jewett-Cameron's
action against Greenwood.
RPC 4.2 provides:
"In representing a client or the lawyer's own interests, a
lawyer shall not communicate or cause another to commu-
nicate on the subject of the representation with a person the
lawyer knows to be represented by a lawyer on that subject
unless:

In re Newell
"(a) 	the lawyer has the prior consent of a lawyer rep-
resenting such other person;
"(b) 	the lawyer is authorized by law or by court order
to do so; or
"(c) 	a written agreement requires a written notice or
demand to be sent to such other person, in which case a
copy of such notice or demand shall also be sent to such
other person's lawyer."
RPC 4.2 does not prohibit all communications between a law-
yer and a person represented by counsel. Rather, that rule
prohibits communications between lawyers and represented
persons only when (1) the communication occurs in the
course of the lawyer's representation of a client or the law-
yer's interests; (2) the person with whom the lawyer commu-
nicates is represented; (3) the communication is on the sub-
ject of both the lawyer's representation and the person's
representation; and (4) the lawyer knows that the person is
represented on that subject.
In this case, there is no dispute that the accused
communicated with Fahey in the course of representing
Jewett-Cameron, that Fahey was represented in the criminal
action, and that the accused knew that he was communicat-
ing with Fahey on the subject on which Fahey was repre-
sented. The only question is whether the communication con-
cerned 	the 	subject 	on 	which 	the 	accused 	represented
Jewett-Cameron and on which Coit represented Fahey. As a
factual matter, the answer to that question is "yes." The sub-
ject on which the accused represented Jewett-Cameron was
Greenwood's alleged overstatement of its inventory. The
accused sought to recover part of the purchase price from
Greenwood on the theory that Greenwood's assets were less
than its books showed. Coit represented Fahey on that same
subject. The criminal action was based on Fahey's embezzle-
ment from Greenwood, which resulted in Greenwood's over-
stated inventory. Factually, each lawyer's representation
involved a common subject-whether Greenwood's books
were overstated.
The accused does not dispute that factual proposi-
tion. He argues instead that the word "subject" in RPC 4.2
means "matter" and that "matter" means the specific legal

Cite as 348 Or 396 	407
matter on which he was representing his client. More specif-
ically, 	the accused argues that his communication with
Fahey would violate RPC 4.2 only if Coit represented Fahey
in Jewett-Cameron's action against Greenwood and if the
accused knew that fact.
The accused's argument is difficult to square with
the text of the rule. The rule uses the word "subject," not
"matter." In this context, "subject" means
"something concerning which something is said or done
* * * <let's say no more on that-> <treated religion as the first
and greatest of -s, <the - of your essay> <a - worth of a great
dramatist>."
Webster's Third New Int'l Dictionary 2275 (unabridged ed
2002). "Subject," the word that the rule uses, is broader than
the word "matter," as the accused defines it. 2
The context of RPC 4.2 is also at odds with the
accused's interpretation of the term "subject." See Stevens v.
Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining
that the context for interpreting a statute's text includes
" 'the preexisting common law and the statutory framework
within which the law was enacted'" (quoting Denton and
Denton, 326 Or 236, 241, 951P2d693 (1998)). RPC 4.2 is gen-
erally modeled on American Bar Association (ABA) Model
Rule 4.2 (2002). 3 Oregon's rule differs from the ABA model
rule in at least one respect. The model rule prohibits a lawyer
from communicating with a "person the lawyer knows to be
represented by another lawyer in the matter." The Oregon
rule prohibits a lawyer from communicating with a person
"the lawyer knows to be represented by a lawyer on that
subject."
2 "Matter" is a defined term for the purposes of the Rules of Professional Con-
duct. See RPC l.O(i) (defining matter). In discussing the accused's argument, we
express no opinion on whether his definition of the term "matter" is consistent with
the definition of that term in RPC 1.0(i). Rather, the question in this case is
whether "subject," the term that RPC 4.2 uses, is broader than "matter," as the
accused defines it.
3 ABA Model Rule 4.2 provides:
"In representing a client, a lawyer shall not communicate about the subject
of the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized to do so by law or a court order."

408 	In re Newell
The Oregon rule's use of "subject" rather than the
defined term "matter" cuts against the accused's argument
that we should substitute "matter" for "subject." See PGE v.
Bureau of Labor and Industries, 317 Or 606, 611, 839 P2d
1143 (1993) (use of a term in one section of a statute but not
another implies a purposeful choice); RPC 1.0(i) (defining
"matter"). Indeed, RPC 4.2 continues the use of the term
"subject" found in former DR 7-104 (1984). In construing a
former version of the rule, this court held that it prohibited a
district attorney from 	communicating with a 	defendant
regarding the defendant's participation as an undercover
drug informant when the district attorney knew that the
defendant was represented on pending rape and robbery
charges. In re Burrows, 291 Or 135, 143-44, 629 P2d 820
(1981). In that case, the accused argued that his communi-
cations did not relate to the rape or the robbery charges, the
particular matters on which the defendant was represented,
"but to the separate subject matter of undercover drug activ-
ities." Id. at 142. This court disagreed. It reasoned that,
because it was clear that the defendant's participation as an
undercover informant would affect his sentencing in the
rape and robbery proceedings, " 'the subject matter of the
[accused's] communications necessarily involved the pending
criminal charges.' " Id. at 143-44 (quoting and adopting the
trial panel's findings).
In Burrows, this court did not interpret the rule nar-
rowly to refer only to the pending criminal action, as the
accused urges. Had it done so, it would have held that the mat-
ter on which the defendant in Burrows was represented was
limited to the rape and robbery proceedings and did not
extend to his participation as an undercover agent or any com-
munications regarding that future status. That interpretation
provides context for the use of the term "subject" in RPC 4.2.
The accused, however, points out that, after this
court decided Burrows in 1981, former DR 7-104(A)(l) was
amended in 1984 to prohibit communication "on the subject
of the representation, or on directly related subjects, with a
person he knows to be represented by a lawyer on that sub-
ject, or directly related subjects." The accused also notes that,
when RPC 4.2 was adopted in 2005, that rule continued to
use the word "subject" but omitted the phrase "or on directly

Cite as 348 Or 396
related subjects." That omission, the accused reasons, limits
the scope of the present rule to situations where the con-
tacted party is represented specifically in the contacting
attorney's case. RPC 4.2, however, continues to use the word
"subject." Although the removal of the phrase "or on directly
related subjects" may make a difference in some other case,
that omission is of no consequence here. Rather, it is suffi-
cient for the purposes of this case to hold, as we do, that the
accused communicated with Fahey on the subject on which
Coit represented Fahey and on which the accused repre-
sented 	Jewett-Cameron. 	The 	accused's 	communication
accordingly was a "communicat[ion] on the subject of the rep-
resentation" within the meaning ofRPC 4.2.
The accused raises a second argument. He contends
that, even if RPC 4.2 generally prohibited him from commu-
nicating with Fahey regarding his embezzlement of funds
from 	Greenwood, 	his 	communication 	with 	Fahey came
within an exception to that general rule. Specifically, the
accused argues that his communication with Fahey was
"authorized by law" under Rule 4.2(b). The accused reasons
that "[d]epositions have been recognized both nationally and
in Oregon as being 'authorized by law' for purposes of the
rule." He concludes that, because the deposition was properly
noticed under ORCP 39, 4 his communication came within
that exception.
We agree with the accused that a deposition is
authorized by law, but we think that the accused reads the
exception too broadly. RPC 4.2 prohibits a lawyer, in the
course of representing a client, from communicating on the
subject of the representation with a person the lawyer knows
to be represented by a lawyer on that subject. RPC 4.2 rec-
ognizes three exceptions to that broad prohibition: (1) if the
other lawyer consents; (2) ifthe communication is authorized
by law; or (3) if a written agreement requires a written
demand or notice be sent to the represented person. Without
the "authorized by law" exception or the consent of the oppos-
ing party's lawyer, a lawyer could not cross-examine the
4 The accused notes that ORCP 39 C(l) requires notice to "every other party to
the action." The accused reasons that, under ORCP 39 C(l), he was not required to
notify Fahey's counsel because Fahey was not a "party to the action."

410 	In re Newell
opposing party at trial, depose that party, or subpoena a
represented witness to testify before the grand jury. See
Restatement (Third) of the Law Governing Lawyers § 99 com-
ment g (2000) (direct communications permitted under the
"authorized by law" exception for cross-examination and dep-
ositions); United States u. Schwimmer, 882 F2d 22, 28 (2d Cir
1989) (federal rule of criminal procedure permitted federal
prosecutor under the "authorized by law" exception to ques-
tion represented witness during grand jury proceedings).
The "authorized by law" exception permits a lawyer
to communicate directly with another party in those situa-
tions without the consent of that party's lawyer. However,
nothing in the terms of that exception or the cases interpret-
ing it suggests that the exception goes as far as the accused
would take it. The accused would interpret the exception to
permit an end-run around the represented person's lawyer.
As we understand the accused's argument, as long as a law-
yer can subpoena a nonparty witness to testify at trial or in a
deposition before the witness has an opportunity to contact
his or her own lawyer, the "authorized by law" exception
would permit the lawyer to ask that witness unlimited ques-
tions without any opportunity for the witness's lawyer to pro-
tect his or her client's interests. That interpretation of the
exception, if accepted, would undermine the purpose of the
rule. See Restatement § 99 comment g (2000) (''Whether
direct communication is authorized depends on the legal jus-
tification for the contact in the situation, having regard for
the interest in protecting client-lawyer relationships and
avoiding overreaching of represented nonclients."). (Paren-
thetical omitted.)
The accused identifies no case that has adopted such
a sweeping interpretation of the exception. Rather, the cases
that the accused cites assume that the represented person
who is subject to deposition, cross-examination, or question-
ing before the grand jury has had, at minimum, an opportu-
nity to notify his or her lawyer. In Schwimmer, for example,
the Second Circuit explained that the federal rules of crimi-
nal procedure permitted the federal prosecutor to question
the witness but did not permit the witness's counsel to be
present. 882 F2d at 28. In holding that the prosecutor's

Cite as 348 Or 396 	411
conduct was authorized by law within the meaning of a com-
parable ethical rule, the Second Circuit explained that the
witness
"[wa]s not the target of [the prosecutor's] investigation, his
testimony is immunized pursuant to § 6002, and he may
consult with counsel at any time outside the grand jury
room. Accordingly, the prosecutor's direct questioning of
Schwimmer before the grand jury outside the presence of
his counsel is authorized by law and therefore does not vio-
late the Code of Professional Responsibility."
Id. (emphasis added). Contrary to the accused's interpreta-
tion of that exception, the Second Circuit did not read the
exception to give one lawyer the power to unilaterally exclude
another lawyer from any opportunity to protect his or her cli-
ent's interests.
The accused argues that the trial panel's decision in
In re Blackmore, 12 DB Rptr 286 (1999), is persuasive and
that we should follow it. In our view, the accused's reliance on
Blackmore is misplaced, because the question in that case
differs from the question presented here. The disciplinary
proceeding against Blackmore arose as result of two actions.
In the first action, International Composites brought a con-
tract claim against Evergreen Plastics. Id. at 287. In the sec-
ond action, one of Evergreens' former employees, Tyacke,
brought a wage claim against Evergreen. Id. Blackmore rep-
resented Evergreen in both International Composites' con-
tract action and also in Tyacke's wage claim. Id.
International Composites served a notice of deposi-
tion on Tyacke in its action against Evergreen. Id. Before
attending the deposition, Tyacke consulted with his lawyer,
who decided that Tyacke should attend the deposition alone.
Id. Tyacke did so, and Blackmore questioned him during the
deposition on matters that were relevant to International
Composites' contract claim against Evergreen. Id. 	Those
matters were also relevant to Tyacke's wage claim against
Evergreen. Id. at 286-87.
The trial panel held that Blackmore's communica-
tion with Tyacke at the deposition did not violate former DR
7-104(A)(l) because it was authorized by law. Among other

412 	Inre Newell
things, the trial panel reasoned that, were the answer other-
wise, "Tyacke could prevent [Evergreen's] discovery of jointly
relevant information in the commercial case by refusing to
bring [his lawyer] to his deposition." Id. at 290. 5
In Blackmore, Tyacke had the opportunity to consult
with his lawyer and decide whether to attend the deposition
alone, knowing that he would be subject to questioning by
Blackmore. In this case, Fahey never had that opportunity.
The difference matters, as this court recognized in In re
Williams, 314 Or 530, 840 P2d 1280 (1992). In Williams, a
tenant had brought her lawyer to a statutorily required
meeting with her landlord, who was represented on that sub-
ject. Id. at 538-39. The tenant's lawyer knew that fact but
communicated with the landlord without the landlord's law-
yer being present. Id. In the resulting disciplinary proceed-
ing, this court rejected the tenant's lawyer's argument that
the statute that required the meeting authorized the tenant's
lawyer to communicate with the landlord without the land-
lord's lawyer present. Id. at 539. The court then noted:
"The accused also argues:
"'If [the accused] were required to refrain from attend-
ing the meeting, then [the landlord], by choosing not to
have her attorney attend, could have effectively negated
[the tenant's] right to representation [at the statutorily
required meeting]. The authorized by law exception pre-
vents that result.'
"Had [the landlord's lawyer] chosen not to attend the meet-
ing, knowing that the accused would attend, a different
case would be presented. That case is not before us."
Id. at 539 n 4.
Blackmore 	posed 	the 	same 	problem 	that 	the
accused's hypothetical posed in Williams, and we cannot
improve on the answer in Williams. If, as in Blackmore,
Fahey's lawyer had chosen not to attend the deposition,
knowing that the accused would attend and question Fahey,
The trial panel in Blackmore offered various rationales to support its conclu-
sion. We identify only one of those rationales and express no opinion on the other
rationales. We also note that, although disciplinary panel opinions may be persua-
sive, they have no precedential value in this court.

Cite as 348 Or 396 	413
a different case would be presented. That case is not before
us, and we need not endorse or disagree with the result in
Blackmore to conclude that the "authorized by law" exception
does not extend so far that it permits one lawyer to unilater-
ally 	exclude 	a 	represented 	witness's 	lawyer 	from 	the
deposition.
Having concluded that the exception does not apply,
we turn to the sanction. The trial panel issued a public rep-
rimand. The Bar does not argue that a greater sanction is
appropriate. The accused contends only that no sanction
should be imposed. The issue regarding the sanction accord-
ingly reduces to a narrow one: If we conclude, as we do, that
the accused violated a disciplinary rule, may we decline to
impose any sanction on the accused?
On that point, Bar Rule (BR) 6. l(a) identifies the
potential "dispositions or sanctions in disciplinary proceed-
ings." They are: (1) dismissal of some or all the charges; (2) a
public reprimand; (3) a suspension for a period from 30 days
to five years; (4) a suspension for a period from 30 days to five
years stayed in whole or in part; and (5) disbarment. BR
6.l(a). Under that rule, if we find that a lawyer has violated a
disciplinary rule, the minimum sanction that we can impose
is a public reprimand. 6 We recognize that, in this case, there
are substantial mitigating factors. The trial panel found, and
the Bar does not dispute, that the accused has an exemplary
reputation among his peers and also a long and distinguished
record of service to the Bar and the community. The rules,
however, require that, if we find a violation, as we do, one of
the four listed sanctions must follow. In this case, we con-
clude that the appropriate sanction is a public reprimand.
Publishing an opinion in which we find that the accused com-
mitted an ethical violation is in itself a public acknowledg-
ment of improper conduct. A public reprimand is merely a
mirror of the opinion itself.
The accused is publicly reprimanded.
6 The accused cites a prior opinion of this court, In re Ainsworth, 289 Or 4 79,
614 P2d 1127 (1980), for the proposition that this court "should simply let its opin-
ion stand without sanction." However, unlike in this case where we find specifically
that the accused violated an ethical rule, in Ainsworth, we declined to specifically
determine whether the accused had committed an ethical violation and dismissed
the complaint. See id. at 490-91, 493.