In re Complaint as to the Conduct of Derek J. ASHTON, OSB No. 871552, Respondent.
(OSB 2202) (SC S071535)
IN THE SUPREME COURT OF THE STATE OF OREGON
May 21, 2026
375 Or 309
En Banc
Argued and submitted November 18, 2025.
C. Robert Steringer, Harrang Long P.C., Portland, argued the cause and filed the briefs for respondent. Also on the briefs were Arden J. Olson, and Julian W. Marrs.
Courtney C. Dippel, Disciplinary Counsel, Tigard, argued the cause and filed the brief on behalf of the Oregon State Bar. Also on the brief was Samuel Leineweber, Assistant Disciplinary Counsel
PER CURIAM
Respondent is suspended from the practice of law for 30 days, commencing 60 days from the date of this decision.
In this lawyer disciplinary proceeding, a trial panel of the Disciplinary Board found that respondent Derek J. Ashton committed three violations of Rule of Professional Conduct (RPC) 3.4(b) (prohibiting a lawyer from paying, offering to pay, or acquiescing in the payment of compensation to a witness contingent on the content of the witness’s testimony or the outcome of a case), one violation of RPC 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal), and two violations of RPC 8.4(a)(4) (prohibiting a lawyer from engaging in conduct prejudicial to the administration of justice). The trial panel suspended respondent from the practice of law for 60 days.
In its request for review, the Oregon State Bar challenges only the sanction that the trial panel imposed and asks this court to suspend respondent for at least six months. In his answering brief, respondent challenges the trial panel’s findings that he committed the charged violations. BR 10.5(1) (permitting opposing litigants to raise additional issues in answering briefs). In addition, respondent contends that, if this court concludes that he did commit some or all of the offenses as found by the trial panel, then a sanction ranging from a public reprimand to a 60-day suspension is appropriate. For the reasons that follow, we conclude that respondent did not violate RPC 3.4(b) as alleged in the Bar’s complaint. We find that respondent committed one violation of RPC 3.4(c) and two violations of RPC 8.4(a)(4), and we conclude that a 30-day suspension is an appropriate sanction for respondent’s misconduct.
I. BACKGROUND
In lawyer disciplinary proceedings, we review the record de novo. Bar Rules of Procedure (BR) 10.6. On de novo review, this court sits as factfinder based on the record developed by the trial panel; that record must demonstrate that the Bar has proved each violation by clear and convincing evidence. BR 5.2. Having reviewed the record and considered the parties’ arguments, we may adopt, modify, or reject the decision of the trial panel. BR 10.6.
The June settlement agreement also included several provisions purporting to limit G’s ability to testify in future legal proceedings about Bean’s involvement in the 2013 incident, including requiring G (1) to “release, covenant and agree forever to refrain from instituting, prosecuting, claiming, testifying, or asserting he/they have the basis for any action, claim or proceeding—civil and/or criminal—against Bean related to [the 2013 incident]”; (2) “not to ever
Respondent filed a motion with the trial court to approve the civil compromise, asking the court to dismiss the criminal case against Bean under
Subsequently, the parties attended a status conference with the trial court judge assigned to Bean’s criminal case. During that conference, Deveny informed the court that G was reluctant to participate in the criminal case and that he would not accept service of a trial court subpoena. She also informed the court that, if he were served, G would move to quash the subpoena in California, where he then lived. The prosecutor acknowledged that G was an uncooperative witness, but he informed the court that the state planned to proceed with the prosecution and to find and serve G in California. The court set the trial for August 11, 2015.
In the meantime, Deveny continued to threaten to file a civil complaint against Bean on G’s behalf. Respondent met with Deveny in her office in an effort to persuade her to delay filing the complaint until after the criminal trial had concluded. Deveny told respondent that she would file the civil complaint within days unless Bean agreed to pay G $200,000. Respondent explained to Deveny that Bean could not settle G’s civil claims before the criminal trial because settlement agreemеnts on behalf of minors require probate court approval under
According to respondent, after that meeting, he tried to think of ways to meet Deveny’s demands that did not require a public filing with the probate court. Respondent wanted to delay the filing of any civil complaint until after the criminal trial because he was concerned that a civil suit would prejudice Bean’s defense by revealing facts that were not known to prosecutors and that a civil complaint would generate publicity that could taint the jury pool. Respondent then proposed to Deveny that Bean would pay G $20,000 to settle only G’s economic damages claims for past and future mental health evaluation and treatment related to the 2013 incident, and, in exchange, G would postpone filing a civil complaint seeking other damages until the criminal trial had concluded.3
Deveny agreed to that proposal, and, on July 20, 2015, respondent drafted, and the parties executed, a settlement agreement entitled “Confidential Settlement Agreement, Release, and Limited Covenant Not to Sue” (July settlement agreement). Like the June settlement agreement, the July settlеment agreement purported to restrict G’s ability to testify in future legal proceedings. Also similarly, the July settlement agreement provided, among other things, that G would (1) “forever * * * refrain from instituting, prosecuting, claiming, testifying, or asserting he/they have the basis for any action, claim or proceeding for economic damages for past and future mental health evaluation and treatment against [Bean] related to events alleged to have occurred
Also in July 2015, the prosecutor in Bean’s criminal case notified respondent and Deveny that he planned to serve G in California with a subpoena to appear at Bean’s criminal trial. Deveny then set in motion a plan to secrete G at a cabin in Oregon to evade law enforcement. G and his mother hid in the Oregon cabin for about a week, and police were unable to locate and serve G with the subpoena. The state then moved to continue the August 11 trial date. Deveny and respondent opposed the motion and asked the court instead to dismiss the case with prejudice. The court sеt the trial over until September 1, 2015, to give the police more time to locate and serve G. Ultimately, G decided to stop evading service and accepted service of a subpoena to appear at Bean’s criminal trial.
G was suffering from severe mental health problems at the time, including feeling suicidal. Deveny and G met with the prosecutor in Bean’s criminal case and told him of G’s mental health struggles and that G did not want to participate in the criminal case and would return to and remain in California despite the subpoena. The prosecutor told G that the state would not issue a material witness arrest warrant to force him to appear if he were to ignore the subpoena.
The day before the trial was scheduled to begin, Deveny called the prosecutor and confirmed that G would not appear. On the morning of September 1, the date set for the trial, respondent emailed Deveny about the possibility that the court would dismiss the criminal case, and he told Deveny that, if the case were dismissed, Bean wanted to settle the civil claim. Later that morning, the parties
After the hearing, respondent and Deveny agreed to settle G’s civil case for $200,000, and respondent prepared another draft agreement (the September settlement agreement). Respondent testified that he had prepared the September settlement agreement in about fivе minutes, editing the June settlement agreement to reflect that the “criminal indictment was dismissed on September 1, 2015” and that the $200,000 would be transferred on or before September 8, 2015.4 However, respondent did not materially change the name of the agreement, and the September settlement agreement continued to indicate that it was a civil compromise agreement even though the criminal case had been dismissed. In addition, respondent did not change virtually any of the terms of the June settlement agreement, and, therefore, like the June settlement agreement, the September settlement agreement repeatedly referenced the criminal charges. Importantly, like the June settlement agreement, the September settlement agreement conditioned payment of the settlement funds on G’s agreement not to testify in future legal proceedings about Bean’s involvement in the 2013 incident without excluding circumstances in which G is ordered to testify by a court or quasi-judicial authority.
Deveny provided respondent with a copy of the September settlement agreement that included the signatures of G and his mother dated September 2, 2015, and on September 8, respondent’s law firm wired $200,000 to Deveny’s lawyer trust account. Deveny did not seek approval of the September settlement agreement from the probate court under
Three years later, in 2018, it came to light that Deveny, in an elaborate scheme executed over many years,
In July 2018, G read a news article about Deveny’s resignation from the Bar and her embezzlement of client funds. He telephoned respondent to talk about the matter. G denied having ever signed settlement agreements with Bean, and he expressed concern that Deveny had stolen his settlement money. Respondent then mailed G copies of the three settlement agreements. In a subsequent phone call, G told respondent that he had not seen or signed the July or September settlement agreement and had not received any money from Deveny. Respondent advised G to contact the police and the Bar.
In August 2018, G and his father called the Portland police and reported that Deveny had stolen money from him. Police conducted a criminal investigation and, in the course of that investigation, began to look more closely at the 2015 criminal case against Bean, the three settlement agreements, and Deveny’s efforts to assist G in avoiding testifying. In October 2018, G learned conclusively that Deveny had stolen the settlement money from him, and he retained new lawyers to file a federal lawsuit against Bean related to the 2013 incident. And, in late 2018, G informed prosecutors that he wanted to pursue prosecution of the sex crimes against Bean. In January 2019, the Lane County District Attorney’s Office refiled criminal charges against Bean.
Respondent at first continued to represent Bean in the 2019 criminal case, but, unbeknownst to respondent, the police had also begun investigating him for his alleged role in the scheme to help G evade service of the subpoena.
In February 2021, respondent offered to plead guilty to contempt of court in exchange for dismissal of the computer crime charge. The prosecutor accepted the plea offer, and, in May 2021, respondent filed a “Petition to Admit Contempt of Court.”7 In that document, respondent admitted that he had engaged in “contempt of court as alleged in Count 1 of the Information,” which provided:
“On or about September 4, 2015, [respondent] willfully resisted the court’s authority * * * by negligently drafting a civil settlement agreement after the dismissal of a criminal case that included language copied from a global settlement agreement related to a proposed civil compromise of the criminal case, where the copied language purported to foreclose a party’s ability to cooperate with a potential future prosecution and where the proposed civil compromise had been previously denied by the court.”
The petition further stated that the parties had agreed that respondent’s lawyer had provided the District Attorney with
“written, verifiable information that shows that * * * [respondent’s] actions in drafting the settlement agreement to resolve the civil claims following the dismissal of the underlying criminal case represented an isolated act of negligence and were not part of a pattern or practice related to multiple alleged victims, and were not a deliberate attempt designed to deprive any alleged criminal victim of their right to testify, and were not an intentional effort to deprive, impede, or interfere with the State’s ability to call a witness at trial in a criminal case.”
The prosecutor acknowledged the foregoing in a document filed with the trial court, and the trial court entered a general judgment finding respondent “[i]n contempt” for “Contempt of Court/Punitive—Finding in Contempt Count 1.” The court sentenced respondent to 40 hours of community service.
In January 2022 the state moved to dismiss Bean’s criminal case on the ground that G “wish[ed] this office to resolve the pending matters against the defendant without a conviction in the case at bar.” The court granted the motion and dismissed the case.
The Bar filed a formal complaint against respondent in 2023 and an amended complaint in 2024, alleging multiple violations of the Rules of Professional Conduct. As relevant here, the Bar alleged that respondent’s conduct in connection with the three settlement agreements violated RPC 3.4(b), which prohibits a lawyer from “acquiesce[ing] in payment of compensation to a witness contingent upon the content of the witness’s testimony,” because the agreements promised payments to G for his agreement never to testify about the 2013 incident. The Bar also alleged that the same conduct violated RPC 8.4(a)(4) because it was prejudicial to the administration of justice. In addition, the Bar alleged that respondent violated RPC 3.4(c), which prohibits a lawyer from “knowingly disobeying an obligation under the rules of a tribunal,” because, after the circuit court issued its order denying the motion to civilly compromise the 2015 criminal charges against Bean, respondent drafted the September settlement agreement and thereby facilitated a $200,000 settlement payment to G based on terms similar to the civil compromise agreement that the trial court had
The trial panel found that respondent had committed three violations of RPC 3.4(b) and one violation of RPC 8.4(a)(4) by offering or acquiescing in the payment of compensation to G contingent upon the content of his testimony and by engaging in conduct prejudicial to the administration of justice in drafting and offering three settlement agreements that contained provisions conditioning payment of settlement funds on G’s agreement not to testify in future legal proceedings against Bean relating to the 2013 charges. In addition, the trial panel found that respondent had knowingly disobeyed an obligation under the rules of a tribunal in violation of RPC 3.4(c) in light of his guilty plea and conviction in 2021 for contempt of court based on the September settlement agreement, and that he engaged in conduct prejudicial to the administration of justice in violation of RPC 8.4(a)(4) based on that same conduct. For those violations, the trial panel suspended respondent from the practice of law for 60 days.
The Bar requests that this court adopt the trial panel’s findings that respondent committed three violations of RPC 3.4(b), one violation of RPC 3.4(c), аnd two violations of RPC 8.4(a)(4), but it asks us to reject the trial panel’s determination that a 60-day suspension is the appropriate sanction for respondent’s misconduct and, instead, to suspend him for no less than six months. Respondent, for his part, contends that none of the three settlement agreements violated RPC 3.4(b) or RPC 8.4(a)(4), because none of those agreements contained an offer to pay G money “contingent on the content” of his testimony at a future legal proceeding. Respondent also contends that the trial panel erred in concluding that he violated RPC 3.4(c) and RPC 8.4(a)(4) by
II. ANALYSIS
A. RPC 3.4(b), Prohibiting Offering to Pay or Acquiescing in Payment of Compensation to a Witness Contingent Upon the Content of the Witness’s Testimony or Outcome of the Case
RPC 3.4(b) provides that a lawyer shall not
“falsify evidence; counsel or assist a witness to testify falsely; offer an inducement to a witness that is prohibited by law; or pay, offer to pay, or acquiesce in payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case; except that a lawyer may advance, guarantee or acquiesce in the payment of [certain expenses, none of which is involved here].”
In its amended formal complaint, the Bar alleged that, in drafting the three settlement agreements, respondent “acquiesced in payment of compensation to a witness cоntingent upon the content of the witness’s testimony or outcome of the case” in violation of RPC 3.4(b). In finding that respondent had committed the three violations of RPC 3.4(b), the trial panel stated that “[i]t is a per se violation of RPC 3.4(b) for a lawyer to include in a settlement agreement a provision that purports to pay compensation to a witness in exchange for the witness’s agreement not to testify in a future legal proceeding.” The trial panel found that respondent had committed those violations of that rule by drafting and proposing provisions in the June, July, and September settlement agreements that required G to agree never to testify against Bean relating to the 2013 incident.
Respondent had argued that the settlement agreement did not contain terms that made payment “contingent on the content” of G’s testimony, because the payment to G did not depend on what G would say or whether a specific case were resolved in a certain way. Rather, respondent had
The Bar concurs in the trial panel’s conclusion. Respondent, for his part, reprises his argument that he did not violate RPC 3.4(b) as alleged in the complaint, because the settlement agreements did not include provisions making payment to G contingent on the content of his testimony in violation of RPC 3.4(b). Resрondent argues that the rule is intended to prohibit lawyers from paying or offering money to a witness in return for specific witness testimony—in other words, it is intended to prohibit a lawyer from buying a witness’s testimony—and that is not what the settlement agreements here do.9
The parties’ arguments and the trial panel’s opinion reflect a disagreement over the meaning of the phrase, in RPC 3.4(b), “contingent upon the content of the witness’s testimony.” As noted, respondent argues that the provisions in the settlement agreements that condition payment on G’s agreement not to testify are not “contingent upon the content of the witness’s testimony” because they are not contingent on what G would say at trial. In other words, respondent contends, an agreement is only contingent on the “content” of a witness’s testimony if the witness promises to testify in a certain way in a future proceeding, and none of the settlement agreements that respondent drafted contained such
The Bar does not address the meaning of the phrase “contingent on the content” of the witness’s testimony. Rather, it explains that RPC 3.4(b) was designed to prohibit lawyers from improperly influencing witnesses, and it cites Boothe for the proposition that an effort to induce a witness not testify is unethical. In addition, the Bar cites a Washington Supreme Court case, In re Disciplinary Proceeding Against Bonet, 144 Wash 2d 502, 514, 29 P3d 1242, 1248-49 (2001), in which that court held that it was a violation of the Washington Rule of Professional Conduct (Washington RPC) 3.4(b) to offer an inducement to a witness in order to influence a witness not to testify.
As we will explain, we agree with respondent that he did not offer an inducement that was “contingent on the content” of G’s testimony within the meaning of that phrase in RPC 3.4(b). However, that does not mean that offering an inducement to a witness not to testify at all is not a violation of the disciplinary rules. Offering an inducement to a witness not to testify in a future legal proceeding may well violate other parts of RPC 3.4(b) or even other disciplinary rules, but the Bar did not charge respondent with violating those provisions.
This court has not previously interpreted RPC 3.4(b). We have stated that, when interpreting a disciplinary rule, the court looks to “‘the wording of the rule, read in context.’” In re Harris, 366 Or 475, 483, 466 P3d 22 (2020), quoting In re Hostetter, 348 Or 574, 583, 238 P3d 13 (2010). The court also considers any interpretive guidance from its prior case law. In re Duboff, 370 Or 720, 727, 525 P3d 62 (2023). And finally, when a Rule of Professional Conduct is modeled after an American Bar Association Model Rule of Professional Conduct, we look to the Model Rule commentary as “persuasive in interpreting the meaning of” the rule at issue. Id. at 726.
We observe that RPC 3.4(b) may be violated in four ways: the rule prohibits a lawyer from (1) falsifying evidence; (2) counseling or assisting a witness to testify falsely;
The definition of the words “contingent” and “content” support respondent’s argument that the phrase “contingent upon the content of the witness’s testimony” is concerned with prohibiting a lawyer from paying a witness to testify in a certain way. As relevant here, the word “contingent” means “dependent on, associated with, or conditioned by something else.” Webster’s Third New Int’l Dictionary 493 (unabridged ed 2002). The word “content,” as relevant here, is defined as the “topics, ideas, facts, or statements in a book, document, or letter” or “the matter esp. of a book or discourse : SUBJECT MATTER, SUBSTANCE.” Id. at 492. Thus, in prohibiting payment to a witness “contingent upon the content of the witness’s testimony,” that phrase in RPC 3.4(b) appears to prohibit only making a payment to a witness dependent on the subject matter or substance of the testimony—in other words, contingent on specifically what the witness testifies about.
However, cases from other jurisdictions interpreting similarly worded disciplinary rules uniformly prohibit paying a witness to testify rather than focusing specifically on the content of the testimony. For example, in Patel v. 7-Eleven, Inc., 2015 WL 9701133 (CD Cal 2015), a California federal district court, applying California Rule of Professional Conduct 3.4(d), which, like Oregon’s RPC 3.4(b), prohibits a lawyer from acquiescing in the payment to a witness “contingent upon the content of the witness’s testimony,” explained that that rule is intended to
“‘prohibit a lawyer from paying or offering to pay money or other rewards to witnesses in return for their testimony, be it truthful or not, because it violates the integrity of the
justice system and undermines the proper administration of justice. Quite simply, a witness has the solemn and fundamental duty to tell the truth. He or she should not be paid a fee for doing so.’”
Id. at *5 (quoting Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assn., 865 F Supp 1516, 1526 (SD Fla 1994), rev’d in part on other grounds, 117 F3d 1328, 1335 n 2 (11th Cir 1997). The court in Patel cited Dyll v. Adams, 1997 WL 222918 (ND Tex 1997), in which a federal district court applied Texas Rule of Professional Conduct 3.4(b), which also prohibits lawyers from acquiescing in payment to a witness contingent upon the content of the witness’s testimony. In Dyll, the court stated, “Payment for factual testimony is generally prohibited even if the testimony sought is truthful.” Id. at *2. In addition, the Patel court cited Caldwell v. Cablevision Sys. Corp., 86 AD3d 46, 925 NYS2d 103 (2011), in which the New York Appellate Division applied New York Rule of Professional Conduct 3.4(b), which also prohibits lawyers from acquiescing in payment to a witness contingent upon the content of the witness’s testimony. There, the court stated that, although witnesses are entitled to attendance fees and travel expenses, the “giving of testimony as to facts within one’s knowledge is a matter of public duty” and an “inherent burden of citizenship, which requires no compensation.” 86 AD3d at 50, 925 NYS2d at 106 (citations and internal quotation marks omitted). The Patel court noted that, “to compensate otherwise would be subversive of the orderly and efficient administration of justice, even where a witness is contracted to tell the truth, rather than to testify falsely, and payment creates an incentive, even unconscious, toward biased testimony.” 2015 WL 9701133 at *5 (citations and internal quotation marks omitted). Those cases all support the conclusion that a lawyer acquiesces in the payment to a witness “contingent upon the content” of the witness’s testimony if the witness is paid to give testimony, whether truthful or not.
Whether it prohibits paying a witness to testify generally or paying a witness to testify in a specific way, the phrase “contingent upon the content of the witness’s testimony” is not easily understood to speak to paying a witness not to testify at all, and neither of the authorities
In addition, as noted, in Bonet, the Washington Supreme Court held that inducing a witness not to testify violated Washington RPC 3.4(b). However, the Washington version of RPC 3.4(b) does not include a prohibition on a lawyer acquiescing in the payment to a witness contingent upon the content of the witness’s testimony. Rather, it provides that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” Thus, in finding that the lawyer had violated Washington RPC 3.4(b), the Washington court found that the lawyer had “offer[ed] an inducement to a witness that is prohibited by law.” 144 Wash 2d at 514. It did not have occasion to determine whether the lawyer had paid or аcquiesced in the payment to a witness “contingent on the content” of the witness’s testimony.
Based on our analysis of the wording of RPC 3.4(b), read in context, we conclude that a lawyer acquiesces in a
The fact that we conclude that respondent’s conduct did not violate RPC 3.4(b) as alleged in the Bar’s complaint does not necessarily mean that that conduct does not violate any other part of RPC 3.4(b) or some other Rule of Professional Conduct. Each of the settlement agreements included provisions that purported to prohibit G from testifying in a future legal proceeding, using wording broad enough to apply even if G were subject to a lawful subpoena or an order of a court or quasi-judicial authority to testify and he lacked a basis for asserting privilege. Offering agreements with those provisions could violate the part of RPC 3.4(b) that prohibits offering an inducement to a witness that is prohibited by law. That is so because an Oregon statute,
However, the Bar did not charge respondent with violating RPC 3.4(b) by offering an inducement that is prohibited by law and it has not argued that we may find
B. RPC 3.4(c), Prohibiting Knowingly Disobeying an Obligation Under the Rules of a Tribunal
RPC 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.” The trial panel found that respondent violated RPC 3.4(c) when he drafted and executed the September settlement agreement that purported to civilly compromise Bean’s criminal charge and facilitated a $200,000 settlement payment to G based on terms similar to those in the June settlement agreement that the trial court had rejected. The trial panel explained that, in 2021, respondent had pleaded guilty to and found in convicted of contempt of court under
As relevant here,
On review, respondent argues that the court is not required to find that he violated
We reject that argument because a finding of contempt of court has the mental state requirement of willfulness, and, as the trial panel observed, respondent “freely and voluntarily” admitted, in his Petition to Admit Contempt of Court, that he committed contempt of court by “willfully resist[ing] the court‘s authority.” In State ex rel Mikkelsen v. Hill, 315 Or 452, 458, 847 P2d 402 (1993), this court held that “willfulness,” for purposes of the contempt-of-court statute,
C. RPC 8.4(a)(4) , Prohibiting Conduct Prejudicial to the Administration of Justice
As discussed, the trial panel also found that respondent violated
As relevant here, the Bar charged respondent with three counts of violating
Respondent‘s only challenge to the trial panel‘s findings that he violated
First, with respect to petitioner‘s conduct in including provisions in the three settlement agreements purporting to prohibit G from testifying against Bean in a future legal proceeding, our case law suggests that paying a witness not to testify in a future legal proceeding may be “improper.” As discussed, in Boothe, this court held that a lawyer‘s attempt to induce a potential witness not to testify in a Bar disciplinary proceeding was prejudicial to the administration of justice in violation of former
However, neither Boothe nor Smith involved payment to a party in connection with the settlement of all civil claims between the parties to the agreement. We are unaware of any case holding that settlement agreements cannot include provisions precluding one party from testifying against another party concerning matters covered by the agreement, and we are reluctant to so hold. Nonetheless, it is indisputable that any such agreement would be prejudicial to the administration of justice if it purported to compel a party to refuse to comply with a subpoena or other lawful order to testify in a future legal proceeding. In this case, the settlement agreements that respondent drafted and offered to G prohibited G from testifying in a future legal proceeding and did not include an exception for circumstances in which G may be ordered to testify by a court or quasi-judicial authority. Therefore, we conclude that respondent‘s conduct in facilitating a payment to G in exchange for G‘s agreement not to testify against Bean in a future legal proceeding was “improper.”
We next consider whether respondent‘s improper conduct occurred during the course of a judicial proceeding.12 As the trial panel noted, respondent conceded that the June settlement agreement was drafted while the 2015 criminal case against Bean was pending. We therefore find that respondent‘s improper conduct in drafting that agreement was “during the course of a judicial proceeding.” The сriminal case also was pending when the July settlement agreement was drafted and executed. The trial panel rejected respondent‘s argument that his conduct in connection with the July settlement agreement did not occur “during the course of a judicial proceeding,” because that agreement related only to unfiled civil claims. The trial panel found that the July settlement agreement prohibited G from
Whether respondent‘s improper conduct in drafting the September settlement agreement also occurred during the course of a judicial proceeding is a closer question, because, by the time the parties had signed that agreement, the trial court judge had orally dismissed the criminal case. The trial panel found that the improper conduct occurred during a judicial proceeding because respondent drafted the September settlement agreement and sent a copy to Deveny before the judge‘s order was entered and the case was officially closed. We agree with the trial panel‘s conclusion, but for a different reason.
As is evident from our discussion thus far, we routinely repeat that an element of a violation of
Accordingly, we conclude that the Bar has proved by clear and convincing evidence that respondent‘s drafting and offering the settlement agreements so as to condition payment to G on his agreement not to testify against Bean in a future legal proceeding, without an exception for circumstances in which G may be ordered to testify by a court or quasi-judicial authority, was prejudicial to the administration of justice in violation of
III. SANCTION
The trial panel suspended respondent from the practice of law for 60 days as a sanction for his misconduct. The Bar urges us to impose a suspension of at least six months. Respondent, for his part, contends that, if this court finds that he committed the charged violations, a sanction ranging from a public reprimand to a suspension of no more than 60 days is appropriate. In determining the appropriate sanction, we apply the framework set out in the American Bar Association‘s Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards): We first determine the preliminary sanction by identifying the nature of the ethical duty violated, the respondent‘s mental state at the time of the violation, and the extent of any actual or potential injury caused by the respondent‘s misconduct. In re Abel, 374 Or 350, 366, 577 P3d 777 (2025). We then consider aggravating and mitigating factors to determine whether the preliminary sanction should be adjusted. Id. Finally, we consider this court‘s case law to decide the appropriate sanction. Id. As explained below, we conclude that a suspension of 30 days is an apрropriate sanction for respondent‘s misconduct.
A. Preliminary Determinations
1. Duties violated
Turning first to the ethical duties violated, we conclude that respondent violated his duties to the legal system by engaging in conduct prejudicial to the administration of justice in including terms in the three settlement agreements that offered an improper inducement to a witness not to testify in a future legal proceeding and in failing to obey a court order. ABA Standard 6.0.
2. Mental state
The ABA Standards recognize that a lawyer may act intentionally, knowingly, or negligently. ABA Standards at 5. The most culpable mental state is acting with intent. “Intent” is defined as “the conscious objective or purpose to accomplish a particular result.” Id. at 7. The next most culpable mental state is acting with knowledge. “Knowledge” is defined as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” Id. And the least culpable mental state is negligence. “Negligence” is defined as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” Id.
The trial panel found that respondent acted knowingly in violating
The trial panel found that respondent was consciously aware that those agreements conditioned the payment of funds to G on G‘s agreement not to testify, but it found that the Bar had failed to prove by clear and convincing evidence that respondent subjectively intended the settlement agreements to prevent G from testifying in a future criminal case. The trial panel found respondent credible when he testified that he subjectively believed that any provision preventing G from testifying would be unenforceable and that, in any case, G would not cooperate with any prosecution of Bean or appear in any criminal trial against him. As for the violation of
Respondent does not challenge the trial panel‘s conclusion that he acted knowingly in drafting and presenting the three settlement agreements. The Bar, however, urges us to find that respondent acted intentionally, at least with respect to the September settlement agreement, because, it contends, in drafting that agreement, respondent made “exacting changes” to the June settlement agreement and because he testified before the trial panel that, after talking to G in 2018, his first thought was “You agreed that you weren‘t going to[,] you know, bring any criminal charges.” After reviewing respondent‘s testimony and comparing the June and September settlement agreemеnts, we do not think that there is clear and convincing evidence in the record that respondent intended that agreement to prohibit G from testifying pursuant to a lawful subpoena.13 Nonetheless, we agree with the trial panel that respondent acted knowingly in including the word “testify” in the September settlement agreement. It is not exculpatory that respondent believed that provisions in the agreement preventing G from testifying would be unenforceable or that respondent believed that G—independent of the agreement—would not cooperate with any prosecution of Bean or appear in any criminal trial against him. But, as the trial panel found, those facts show that respondent had a “conscious awareness of the nature or attendant circumstances of the conduct,” but that he did not have “the conscious objective or purpose” to prohibit G from testifying pursuant to a lawful subpoena.
As previously discussed, we also agree with the trial panel that the contempt judgment conclusively establishes that respondent acted knowingly in drafting the September settlement agreement to include provisions similar to those in the civil compromise agreement that the trial court had rejected. Finally, because the second violation of
3. Injury
In determining an appropriate sanction, the court considers both actual and potential injury. ABA Standards at 6; In re Keller, 369 Or 410, 417, 506 P3d 1101 (2022). The Bar urges us to conclude that respondent‘s misconduct caused actual injury to the court, the legal system, and to the legal profession because, in including provisions in the
We disagree that the Bar proved by clear and convincing evidence that respondent‘s misconduct caused actual injury. Like the trial panel, we find that the Bar has not established by clear and convincing evidence that G based his decision not to testify against Bean in the two criminal cases on the fact that he was prohibited from doing so by provisions in the settlement agreements. For one thing, Deveny made clear to respondent from the outset that G did not wish to participate in any criminal proceeding, even in response to a subpoena, and the Bar has not pointed to any evidence in the record that G was motivated not to participate by the settlement agreements themselves. For similar reasons, and because the parties signed the September settlement agreement after the trial court had orally granted a motion to dismiss the criminal case, respondent‘s violation of
However, respondent‘s misconduct did cause potential injury to the legal system and the legal profession because the settlement agreements could have persuaded G not to testify against Bean in a subsequent civil or criminal case. In addition, respondent‘s misconduct caused potential injury because offering money to a witness in exchange for agreeing not to testify without excluding circumstances in which the witness may be ordered to testify by a court or quasi-judicial authority could interfere with the proper functioning of the justice system and, when done by a lawyer, as here, it undermines confidence in the legal profession. Likewise, resisting court orders also has the potential to interfere with the administration of justice and undermines confidence in the legal profession.
Taking together the duties violated, respondent‘s mental state, and the actual and potential injury caused by respondent‘s misconduct, and before considering aggravating and mitigating factors, the following ABA Standard applies. Under ABA Standard 6.22, suspension is generally appropriate when a lawyer knowingly violates a court order and causes actual or potential injury to a client or party or interference or potential interference with a legal proceeding. Neither of the other ABA Standards that apply to knowing violations of duties owed to the legal system—neither ABA Standard 6.12 nor ABA Standard 6.3214—directly applies here, but to the extent they have any relevance at all, they also suggest that a suspension is generally appropriate for a knowing violation of the disciplinary rules. Thus, given our conclusion that respondent‘s violations of
B. Aggravating and Mitigating Factors
1. Aggravating factors
The trial panel found that the following aggravating factors are present in this case: Pattern of misconduct, ABA Standard 9.22(c); multiple offenses, ABA Standard 9.22(d); refusal to acknowledge wrongful nature of conduct, ABA Standard 9.22(g); vulnerability of the victim, ABA Standard 9.22(h); and substantial experience in the practice of law, ABA Standard 9.22(i). The Bar urges us to find those
Respondent counters that the record does not support findings that all those aggravating factors are present. First, he contends that the trial panel correctly rejected the Bar‘s argument that he acted with a dishonest or selfish motive. ABA Standard 9.22(b). We agree. The Bar does not offer any evidence to support its argument that respondent acted with a selfish or dishonest motive, and we agree with the trial panel that the evidence showed that respondent zealously advocated for his client and did not stand to gain personally from his drafting of the settlement agreements.
Respondent also contends that there was no “pattern of misconduct.” The trial panel found that this aggravating factor was present because respondent drafted and proposed three agreements that each contained similar provisions conditioning payment on G‘s agreement not to testify against Bean. Respondent argues that that does not show a “pattern” of misconduct as would a case in which a lawyer commits the same violations with multiple clients or in different circumstances. Rather, it merely shows that respondent repeatedly tried to resolve the same issue between the same client and the same adverse party. He argues that that may give rise to multiple disciplinary offenses, but it does not show a “pattern” of misconduct.
In In re Redden, 342 Or 393, 397, 153 P3d 113 (2007), this court examined “the elements of a ‘pattern of misconduct’ that the Bar must prove to establish that aggravating circumstance.” The court stated that, “[w]hen considering the sanction issue, this court has found a pattern of misconduct in [neglect] cases when the accused lawyer engaged in similar misconduct in the past, the lawyer‘s conduct violated multiple disciplinary rules, or the lawyer neglected the legal matters of multiple clients.” Id.; In re Walton, 352 Or 548, 559, 287 P3d 1098 (2012) (court has applied pattern-of-misconduct aggravating factor “only in cases in which the lawyer has violated the disciplinary rules in more than one case or matter“); see also In re Davenport, 334 Or 298, 321, 40 P3d 91 (2002) (no pattern of misconduct where all misrepresentations occurred in same proceeding and pertained to
Respondent also argues that the trial panel erred in finding that his refusal to acknowledge the wrongful nature of his conduct was an aggravating factor.
Notably, in Maurer, this court went on to say that “[a] lawyer does not refuse to acknowledge the wrongfulness of his or her conduct when he or she makes a plausible legal argument that the admitted conduct does not violate the disciplinary rules.” Id. In this case, respondent made a plausible legal argument that his admitted conduct did not violate
The trial panel found that that aggravating factor applied because G was a vulnerable minor and alleged sexual abuse victim whom respondent knew to be experiencing financial and severe emotional distress. However, the trial panel stated that it was assigning “less weight” to that factor given that respondent had no direct contact with G and that G was represented by counsel.
We are not aware of any case in which we have held that a person represented by opposing counsel in a matter in which the respondent was charged with disciplinary violations was deemed a “vulnerable victim” of the respondent. Respondent was entitled to expect that Deveny was fully representing G‘s interests in any negotiation or proposed settlement of any civil and criminal proceedings. G was not respondent‘s client, and he was not respondent‘s “victim.” The “vulnerable victim” aggravating factor does not apply.
We are then left with two aggravating factors: multiple offenses, ABA Standard 9.22(d); and substantial experience in the practice of law, ABA Standard 9.22(i). The trial panel also found several mitigating factors: absence of a prior disciplinary record, ABA Standard 9.32(a); absence of a dishonest or selfish motive, ABA Standard 9.32(b); character or reputation, ABA Standard 9.32(g); and delay in the disciplinary proceedings; ABA Standard 9.32(j). The trial panel explained as to that last factor that all of respondent‘s misconduct took place in 2015, ten years before the disciplinary proceedings. And, although the Bar made the point that it had not discovered respondent‘s misconduct until he was indicted in 2019 and that it had stayed its investigation until those charges were resolved, respondent‘s criminal
We agree with the trial panel‘s findings as to mitigation, and we conclude that the mitigating factors outweigh the aggravating factors. We turn to consider this court‘s case law.
C. This Court‘s Case Law; Sanction Determination
We have found that respondent committed one violation of
In considering the appropriate sanction for respondent‘s conduct in offering an inducement to G not to testify, the trial panel pointed to In re Moore, 29 DB Rptr 73 (2015), in which the respondent stipulated to a public reprimand for knowingly offering an improper inducement in violation of
The trial panel in this case also cited two other cases in which a public reprimand was found to be the appropriate sanction for a lawyer who committed a single violation of
In addition, the trial panel cited several cases from other states in which the courts imposed suspensions of 30 to 90 days for conduct that the trial panel considered to be more like respondent‘s conduct here, because they involved lawyers who had offered to settle claims in exchange for a witness‘s agreement not to testify: In re Kennedy, 864 NW2d 342, 347 (Minn 2015) (imposing 30-day suspension where lawyer engaged in conduct prejudicial to administration of justice by offering in a letter to settle a crime victim‘s civil claims for a cash payment and agreement not to testify in the defendant‘s criminal case); The Florida Bar v. Machin, 635 So 2d 938 (Fla 1994) (imposing 90-day suspension where lawyer engaged in conduct prejudicial to the administration of justice by offering to set up a trust fund for a minor victim of lawyer‘s client if the victim‘s family agreed not to testify against his client during a sentencing hearing); and Matter of Lutz, 101 Idaho 24, 27, 607 P2d 1078, 1081 (1980) (imposing onе-month suspension where lawyer, “[Bean]y drafting the ‘covenant not to testify’ and by tenaciously clinging to its terms, * * * attempted to short-circuit the judicial process, and in so doing was guilty of conduct prejudicial to the administration of justice“).
The Bar urges the court to impose a suspension of at least six months for respondent‘s violations of
Apart from disputing the Bar‘s case-matching, respondent provides little argument concerning the appropriate sanction, but he argues that a public reprimand is an appropriate sanction for his attempt to improperly induce a witness not to testify.
We conclude that the Oregon cases that the trial panel cited, in which the lawyer had offered an inducement prohibited by law, are the most apt, and they support a public reprimand for respondent‘s violation of
The trial panel cited several cases in which the lawyers received suspensions rather than public reprimands for disobeying an obligation under the rules of a tribunal, but those cases generally involved more serious misconduct than that present here. For instance, in In re Carini, 354 Or 47, 59-60, 308 P3d 197 (2013), the court imposed a 30-day suspension for the lawyer‘s violation of a court order by repeatedly failing to appear at scheduled court hearings in his client‘s criminal case. In In re Chase, 339 Or 452, 121 P3d 1160 (2005), the court imposed a 30-dаy suspension because the lawyer repeatedly failed to pay child support and knowingly violated the court‘s order requiring him to pay child support. In In re O‘Neil, 34 DB Rptr 132 (2020), the lawyer received a 60-day suspension for knowingly failing to obey a subpoena to appear as a witness in a post-conviction case and then failed to cooperate with disciplinary authorities. And, in In re Coyner, 342 Or 104, 149 P3d 1118 (2006), the lawyer was suspended for 90 days for neglecting two legal matters, failing to deposit client funds in his lawyer trust account, failing to render an appropriate accounting to a client, and knowingly violating a court order prohibiting him from drinking alcohol or visiting a bar.
The Bar also points us to In re Arsanjani, 20 DB Rptr 23 (2006), where the lawyer was suspended for 30 days after being held in contempt for violating the terms of a restraining order, and In re Gonzalez, 25 DB Rptr 1 (2011),
The Bar‘s disciplinary cases suggest that a sanction ranging from a public reprimand to a 30-day suspension would be an appropriate sanction for respondent‘s violation of
IV. CONCLUSION
We conclude that the Bar proved by clear and convincing evidence that respondent violated
Respondent is suspended from the practice of law for 30 days, commencing 60 days from the date of this decision.