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No attorney, public or private, may misrepresent his identity or purpose while attempting to acquire information, the Oregon Supreme Court held in an attorney disciplinary action that stemmed from misrepresentations made in an attempt to ferret out wrongdoing at a claims review company ( In re Complaint as to the Conduct of Daniel J. Gatti, No. SC S45801, Ore. Sup.). The state’s high court, in an en banc opinion issued Aug. 17, sanctioned attorney Daniel J. Gatti with a public reprimand for representing himself as a chiropractor and making other misstatements in an effort to gather information for a lawsuit against Comprehensive Medical Review (CMR), which reviewed claims for State Farm Mutual Automobile Insurance Co. EXCEPTION TO THE RULE Gatti represented several chiropractors accused of racketeering and fraud through an undercover investigation called Operation Clean Sweep. Gatti filed a complaint with the Oregon State Bar alleging the state and federal lawyers involved in the sweep advised investigators to have people pose as janitors and injured workers in order to infiltrate chiropractors’ and lawyers’ offices to obtain information on suspected fraudulent workers’ compensation claims. Gatti alleged that the lawyers’ advice violated several rules of the Code of Professional Responsibility. The Bar investigated and determined that since Gatti’s complaint did not name a specific attorney, it could not be pursued. Further, the Bar concluded that the attorneys have public authority to root out possible fraud, so they did not act unethically in providing advice on how to conduct a legal undercover investigation. The Bar closed its file on Gatti’s complaint. In April 1994, a chiropractor acquaintance of Gatti’s told him CMR had asked him to review claims and that the chiropractor was uneasy about CMR’s methods. Gatti came to believe that non-medical personnel were reviewing State Farm claims at CMR using a formula designed to reduce the amount State Farm paid. A CMR chiropractor denied a claim filed with State Farm by one of Gatti’s clients. Gatti called the chiropractor and identified himself as a chiropractor and asked him about his qualifications. Gatti recorded the conversation, which ended quickly when the chiropractor became uncomfortable. MISREPRESENTATIONS Gatti next contacted a CMR vice president named Adams. Gatti introduced himself as a doctor with experience performing independent medical examinations and reviewing insurance claims. Gatti later admitted he wanted Adams to believe he was a chiropractor who was interested in participating in CMR’s educational programs for claims adjusters. Gatti also told Adams that he was interested in working as a claims reviewer for CMR. Gatti recorded the conversation. Adams referred Gatti to Ralph Householder, a CMR executive and a former State Farm vice president, to discuss employment. Householder knew Gatti was an attorney. In June 1994, using information from other sources, Gatti filed a complaint against CMR, State Farm and Householder alleging fraud and intentional interference with contractual relations. In July 1994, Adams filed a complaint against Gatti, alleging he misrepresented himself as a chiropractor and repeatedly tried to obtain confidential and proprietary information regarding CMR’s guidelines for preparing reports. In response, Gatti asserted he never represented he was a chiropractor. He told Adams he was a doctor, albeit a doctor of jurisprudence, and that he filed reviews by the hundreds, which Gatti said were true statements. Months later, Gatti obtained a transcript of the Adams conversation from the sealed documents in the fraud case against CMR. The transcript made clear that Gatti told Adams he was interested in working for CMR, that he was a doctor, that he saw patients and that he performed independent medical reviews. PROFESSIONAL CODE VIOLATION The Bar charged Gatti with violating DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4). A trial panel of the Disciplinary Board held that Gatti committed the violations but that the Oregon State Bar was estopped from pursuing its complaint because the Bar’s earlier representation regarding Operation Clean Sweep indicated a lawyers’ conduct does not violate the Code of Professional Responsibility because of prosecutorial exception. The panel said Gatti reasonably inferred from the Bar’s letters that it is ethical for a lawyer in private practice to use deceptive methods to investigate other private parties. The high court concluded that even if Gatti relied on the Bar’s letters in making calls to CMR, his reliance was not reasonable because the letters did not state or imply that lawyers in private practice may misrepresent their identity or purpose in investigating a matter. Further, the Supreme Court said advice from disciplinary counsel is not a defense to a disciplinary violation. Thus, the high court said the Bar was not estopped from prosecuting Gatti for alleged misconduct. Gatti urged the high court to adopt an investigatory exception to the disciplinary rules and statute, specifically: “As long as misrepresentations are limited only to identity or purpose and [are] made solely for purposes of discovering information, there is no violation of the Code of Professional Responsibility.” Gatti argued that his attempt to uncover fraud was no less important that the government attorneys’ efforts in the undercover investigation. ‘NO EXCEPTION’ Said the Supreme Court, “Faithful adherence to the wording of DR 1-102(A)(3), DR 7-102(A)(5), ORS 9.527(4), and this court’s case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements. In our view, this court should not create an exception to the rules by judicial decree. Instead, any exception must await the full debate that is contemplated by the process for adopting and amending the Code of Professional Responsibility.” Thus, the high court said, the disciplinary rules and statute apply to all members of the Bar, without exception. The Supreme Court rejected Gatti’s contention that the Bar has created two classes of attorneys in violation of Article I, Section 20 of the Oregon Constitution and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Gatti is correct, the high court said, that discriminatory application of a generally applicable law might violate the Oregon Constitution; however, he must show that the Bar’s decision not to prosecute the attorneys involved in the undercover operation was based on an unconstitutional favoritism for those attorneys. “The accused has shown only that the Bar believed that it did not have evidence to press charges against certain government lawyers in response to his complaint in 1992,” the high court said. “The accused has not demonstrated that the Bar has a policy of prosecuting lawyers in private practice but not prosecuting government lawyers who are accused of violating the Code of Professional Responsibility.” REPRIMAND Turning to the appropriate sanction, the Supreme Court said it was clear that Gatti acted intentionally, and the potential for injury was that CMR would make statements that could affect its legal rights. The high court noted, however, that the action against Gatti “brought to the surface an issue that has been festering for some time.” According to amici briefs, public and private attorneys have held the mistaken belief that they ethically are permitted to misrepresent their identity and purpose and to encourage others to do so to acquire information. “Thus, it is a fortuity that the accused in this case, rather than some other Oregon lawyer, is the subject of these proceedings,” the high court said, concluding a public reprimand was appropriate. Counsel to Gatti is Christopher R. Hardman of Portland, Ore. Mary A. Cooper, Assistant Disciplinary Counsel, Oregon State Bar, of Lake Oswego, Ore., represented the Bar. Robert K. Udziela, Kathryn H. Clarke, Jeffrey P. Foote, William A. Gaylord, Phil Goldsmith, Maureen Leonard and David F. Sugerman represent amici curiae Oregon Consumer League, Fair Housing Counsel of Oregon and the Oregon Law Center. U.S. Attorney Kristine Olson, Assistant U.S. Attorney Michael W. Mosman and Assistant U.S. Attorney Phillip Schradle represent the U.S. Department of Justice and the State of Oregon. � Copyright 2000 Mealey Publications, Inc.

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