Discovery Failures Draw Suspension

July 25, 2024

A 24-month suspension has been imposed on a criminal defense attorney by the Oregon Supreme Court

The Bar brought this case based on allegations that respondent, a criminal defense lawyer, had not been reviewing discovery before resolving his client’s cases. Relying on In re Bettis, 342 Or 232, 240, 149 P3d 1194 (2006), the Bar contends that a criminal defense lawyer’s failure to review available discovery before resolving a case is a categorical violation of RPC 1.1’s duty of competence. As we will explain, we decline to take a categorical approach to what constitutes a violation of RPC 1.1’s duty of competence; that is a fact-specific inquiry that depends on the circumstances. However, reviewing this matter de novo, we conclude that respondent violated all four [charged] rules, resulting in 10 violations, as alleged, and we suspend him from the practice of law for 24 months.

Facts

In June 2020, while respondent was under contract with the consortium, the Chief Deputy District Attorney for Jefferson County, Foster, filed a grievance with the Bar, claiming that respondent had not accessed discovery in 96 cases in which his clients had accepted plea offers. Some of those plea agreements resulted in significant prison sentences. Foster’s grievance was based on information that she had retrieved from her office’s electronic case management system, called “Prosecutor by Karpel” (Karpel). Although Foster had identified 96 potentially problematic cases, her grievance focused on 37 specific cases in which she asserted that respondent had either never requested discovery, had not accessed any discovery, or had accessed only very limited discovery.

In the bar proceeding

A majority of the trial panel concluded that respondent had committed the 10 violations alleged and imposed a 24-month suspension. A dissenting panel member would have imposed a 12-month suspension.

In addition to competence, diligence and communication violations

we conclude that the Bar proved by clear and convincing evidence that respondent violated RPC 8.1(a)(2). Although he did not entirely fail to respond to the Bar’s inquiries, he provided conflicting, incomplete, and delayed responses.

Sanction

After considering respondent’s mental state, the duties violated, the injury caused, aggravating and mitigat-ing factors and our case law, we agree with the trial panel that a 24-month suspension is appropriate.

(Mike Frisch)

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Bar Discipline & Process