In re Complaint as to the Conduct of ERIC J. NISLEY, OSB No. 951049, Respondent.
and Submitted May 6, 2019.
review of the decision of a trial panel of the Disciplinary
Board (OSB 16-167). [*]
Lawrence Matasar, Lawrence Matasar, PC, Portland, argued the
cause and fled the briefs for respondent.
R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued
the cause and fled the brief for the Oregon State Bar.
Oregon State Bar alleged that respondent, a District
Attorney, knowingly made six false and material statements to
the Bar during an investigation into possible misconduct that
had involved the investigation of certain payments made by
another county official using county funds. A trial panel of
the Disciplinary Board determined that respondent had made
one such false statement, in violation of BR 8.1(a)(1), and
suspended him for 30 days.
Bar proved by clear and convincing evidence that respondent
had knowingly made four false, material statements, amounting
to a single violation of BR 8.1(a)(1); and (2) The
appropriate sanction is a 60-day suspension.
is suspended from the practice of law for 60 days, commencing
60 days from the date of fling of this decision.
Or. 794] PER CURIAM.
lawyer disciplinary proceeding, the Oregon State Bar alleged
that respondent knowingly made six false and material
statements to the Bar during an investigation into possible
misconduct, in violation of Rule of Professional Conduct
(RPC) 8.1(a)(1). A trial panel determined that respondent had
made one such false statement, and it imposed a one-month
suspension. Respondent requested review and seeks dismissal;
the Bar counters that it proved all its allegations and
requests a six-month suspension. On de novo review,
we conclude that respondent made four false statements, and
we suspend him from the practice of law for 60 days.
FACTS AND PROCEDURAL BACKGROUND
is the District Attorney (DA) for Wasco County, having served
since 1999. In 2014, he initiated an investigation involving
potentially unlawful conduct by one or more county officials,
including the county's then-finance manager, Morris.
Respondent later was accused by the county's counsel of
violating a conflict of interest rule in connection with that
investigation. In responding to an ensuing Bar inquiry,
respondent made six statements that the Bar later alleged had
been false. Although the Bar's false statement
allegations-not the earlier-reported conflict of interest
accusation-are at issue here, a description of the underlying
events that led to the statements is necessary to put them in
context. We take the facts set out below from the record.
first underlying event occurred in 2011 and had involved
inappropriate conduct by respondent toward Morris. At that
time, respondent was serving as both Wasco County Counsel and
DA. While he and Morris were attending a conference, they had
gathered with others in the evening in a hotel lounge.
Respondent-who was very intoxicated- directly propositioned
Morris, and she refused. Respondent passed out shortly
thereafter. He was embarrassed about the incident and
apologized to Morris not long afterwards, and she accepted
his apology. Morris told her supervisor, Stone, [365 Or. 795]
who was the county's Administrative Officer, about the
incident, but she declined the opportunity to pursue any
action. The record otherwise does not reflect any further
activity in connection with that incident, although Morris
stated in an affidavit that, since then, respondent had
engaged in other nonsexual, "but intimidating,"
behavior toward her, without elaboration. Respondent and
Morris both continued to work for the county, in the same
second underlying event involved an investigation that
respondent initiated three years later, in his capacity as
DA, again involving Morris. In 2014, a local official asked
respondent to check into a disbursement of county funds that
Morris had made-specifically, two cash payments totaling $360
made to an intern, Davila, which Morris had treated as
permissible advance salary draws. Unbeknownst to the
inquiring official, or to respondent until much later, the
payments apparently had been expressly authorized at the time
by Stone. And, as will be seen, a key aspect of the
parties' dispute involves the extent to which respondent
focused on Morris during the investigation.
initially told about the cash payments, respondent commented
to the inquiring official that Morris would not have made
them without Stone's authorization. He nonetheless
thought that the payments were problematic, and, because the
conduct involved another county official, he asked the Oregon
State Police (OSP) to investigate. In doing so, he stated
that an apparent unlawful loan of county funds-possibly
amounting to official misconduct- had been made by Morris to
Davila, with no mention of Stone. Shortly thereafter, in an
effort to preserve evidence, respondent secured a subpoena
duces tecum that granted him access to a large
number of emails between Stone and others, including Morris
referred respondent to the Oregon Department of Justice
(DOJ), and respondent then submitted a similar investigation
request to DOJ. DOJ's memorializing intake form and case
note stated that respondent had requested [365 Or. 796]
"the investigation *** of ***
Morris"; mentioned no other county official; and
noted a possible statutory violation. DOJ opened a case in
December and assigned an investigator, Culley, and an
Assistant Attorney General, Benson. Based generally on the
nature of respondent's initial request, DOJ's intake
form identified Morris as the "subject."
began contacting witnesses, and Stone sent him documentation,
spoke with him by phone, and was interviewed by him and
Benson. Stone's documentation showed that Morris recently
had explained the cash payments to him as permissible salary
draws under the county employees' union bargaining
agreement. Stone also told Culley that cash advances were a
local practice and that he was not concerned about the
allegations. And, Stone told Culley and Benson about the 2011
incident between respondent and Morris, and he commented that
respondent's current actions were "axe
grinding" against her. Culley and Benson also
interviewed Morris, who similarly relied on the bargaining
agreement to support the payments. By the end of their
witness interviews, Culley and Benson tentatively concluded
that the bargaining agreement had permitted the payments and
that no improper conduct had occurred. DOJ did not generate a
report for a few months, however.
meantime, respondent had become increasingly frustrated at
the progress and quality of the DOJ investigation, and,
beginning in January 2015, he began contacting DOJ with some
frequency. In many of those communications, he asked about
the status of the "Morris" case- which, as noted,
is what DOJ had named its case file based on his initial
inquiry. In one email, he wrote that Morris was "in
charge of all the County's finances and appears to have
committed a crime"; in others, he wrote that this was a
"very serious matter[, involving] not simply an employee
draw [but] an illegal loan of taxpayer's funds," and
that he was "very concerned" about Morris's
conduct and the fact that she continued to work as finance
manager with limited oversight. In one of those emails, he
also wrote that Morris [365 Or. 797] appeared to be
concealing information from elected officials; in another, he
forwarded information about an earlier cash payment that she
apparently had made to a different employee; in yet another,
he noted a finding of "discrepancies in the county's
cash fund." He also suggested additional persons to
interview and stated that, if DOJ declined to investigate, he
would do so. After one phone call with respondent, Benson
noted that he "wants us to prosecute" Morris. From
DOJ's perspective, respondent was exclusively focused on
Morris as a wrongdoer.
February, Benson told respondent that DOJ had determined that
it did not appear that DOJ would be able to press criminal
charges, citing the bargaining agreement and DOJ's
interview information. Respondent disagreed, and he also
thought the agreement had not covered an intern, such as
Davila. He therefore wrote to Benson's supervisor,
Tuttle, in early March, stating that he would complete the
investigation locally and requesting that DOJ send its
documentation to him.
in March, Culley issued a report that concluded that nothing
supported the allegation that Morris had committed a crime by
disbursing funds under the bargaining
agreement. That report identified Morris as a
"subject" and Stone as a "witness." Also,
Benson wrote a declination of prosecution letter to
respondent, explaining that the cash payments had been
"legal" under the bargaining agreement and
generally mentioning Stone's apparent approval. At this
juncture-given the nature of all respondent's
communications with DOJ-Culley, Benson, and Tuttle all
understood respondent's sole focus in the investigation
to have been on Morris, not on Stone or anyone else, and they
also thought that respondent wanted them to prosecute Morris.
then turned its materials over to respondent. When respondent
reviewed Culley's report, he concluded that Culley had
been biased toward Morris, and he sent Benson an email to
that effect. He also decided to interview Davila, which DOJ
had not done. That ensuing interview uncovered [365 Or. 798]
information that was both new and significant to respondent:
Davila told him that Stone expressly had approved the cash
payments contemporaneously with Morris making them.
Respondent thought that that information actually exonerated
Morris because she had acted with Stone's permission; he
also thought that it implicated Stone.
Morris had found it difficult to work in the same building as
respondent. She discussed her discomfort with lawyers
representing the county, who in turn learned about the
earlier 2011 incident between Morris and respondent.
Concerned that Morris might take action against the county,
the Wasco County Counsel, Timmons, asked DOJ for its
investigatory materials. Tuttle asked respondent for
permission to release them, but he initially declined, citing
his ongoing investigation. That communication appears to have
occurred before he interviewed Davila.
Timmons sent a second materials request to DOJ, and Tuttle
again asked respondent whether Morris was still under
investigation. Respondent answered that he had not yet
completed his work, but also that "Morris is actually
not the suspect in this matter." He elaborated that,
following his interview with Davila, Morris had been absolved
of wrongdoing. Tuttle responded that she was surprised to
hear him deny that Morris was the "suspect"
because, in his communications with DOJ, he had focused
solely on Morris.
decided to seek outside review as to whether he should pursue
criminal charges arising from the cash payments. In June, he
prepared summary materials- which focused on Stone's role
in authorizing the payments and his own assessment that the
bargaining agreement had not applied-and sent them to another
DA for review. That DA agreed with respondent that the
payments had not been proper and that the bargaining
agreement had not covered Davila. He further recommended,
however, against prosecuting Morris or Stone. Respondent
thereafter closed his file.
Bar's Investigation and Alleged False Statements
in May 2015, Timmons had complained to the Bar's Client
Assistance Office (CAO). Among other, unrelated allegations,
he asserted that respondent had [365 Or. 799] initiated a
"retaliatory" investigation against Morris, which
had involved a "personal interest" conflict of
interest under RPC 1.7(aX2), in light of the 2011
incident. The CAO assessed that Timmons's
allegations might have implicated RPC 1.7(a)(2) and also RPC
3.1 (prohibiting frivolous proceedings or actions), and it
asked respondent to respond, focusing on those rules and his
"alleged retaliatory investigation."
the next 10 months, the CAO and, later, the Bar's
Disciplinary Counsel Office (DCO), engaged in further written
communications with respondent. Respondent wrote four letters
to the Bar, two through counsel (both to the CAO), and two
while representing himself (both to the DCO). The Bar alleges
that, in his first three letters written over a four-month
period, respondent knowingly made six false statements that
were material to the Bar's investigation. We provide
greater detail about those six statements later in this
opinion; they can be summarized as follows: (1) Morris had
not been the "target" of any investigation, and
respondent never had seen her as the "target"
(three statements); (2) Morris never had been the
"subject" of the investigation (one statement); and
(3) respondent had requested a "general
investigation" about the cash payments, and his concern
had been completing that investigation to determine who had
authorized them (two statements).
Complaint and Trial Panel Proceeding
filed a formal complaint that briefly described the 2011
incident; respondent's investigation of the cash
payments, including the nature of his representations to
others (particularly DOJ staff) about Morris; and the nature
of Timmons's complaint accusing respondent of initiating
and pursuing a retaliatory investigation against Morris that
had posed a conflict of interest. The Bar alleged that, in
response to its inquiries, respondent had denied that he had
had any personal-interest conflict related to the
investigation "because, he claimed, he had not targeted
[365 Or. 800] Morris in his investigation" and, in
support of that theory, had made the six alleged false
statements. The Bar further alleged that each statement had
been both false and material to its inquiry, and had been
knowingly made, in violation of RPC 8.1(a)(1).
matter proceeded to a hearing before a trial panel of the
Disciplinary Board. Respondent was represented by
counsel; neither Morris nor Stone testified.
assessing the evidence, the trial panel evaluated
respondent's alleged false statements in the three
categories identified above: his denials that Morris had been
a "target"; his denial that she had been a
"subject"; and his assertions about the nature of
his investigation. The panel also framed the inquiry in the
context of Timmons's initial complaint to the Bar-that
is, Timmons had accused respondent of initiating a
"retaliatory" investigation against Morris, and
respondent thus had responded within that framing, denying
that he had acted with any retaliatory motive.
trial panel addressed the retaliation issue first and found
that respondent had not retaliated against Morris; instead,
his investigation had been legitimate and nonretal-iatory.
Turning to the three "target" statements, the panel
determined that those statements should be understood to mean
that respondent had not "targeted" Morris-that is,
he had not viewed her as a "target in retaliation"
when he initiated and pursued the investigation. It followed,
in the panel's view, that the Bar did not prove that
those three statements had been false when made.
trial panel also determined that the Bar had not proved that
respondent's statements about the nature of the
investigation had been false. In support, the panel cited
respondent's legitimate interest, as the county's DA,
in investigating a seemingly improper loan involving county
funds and evidence in ...