No. 4 February 20, 2015 691

4In re Ellis / Rosenbaum February 20, 2015 356 Or 2015

IN THE SUPREME COURT OF THE

STATE OF OREGON

In re Complaint as to the Conduct of

BARNES H. ELLIS,

Accused.

(OSB No. 09-54; SC S061385)

In re Complaint as to the Conduct of

LOIS O. ROSENBAUM,

Accused.

(OSB No. 09-55; SC S061385)

On review of the decision of the trial panel of the 

Disciplinary Board.*

Argued and submitted March 4, 2014, at Lewis and Clark 

Law School, Portland, Oregon.

W. Michael Gillette, Schwabe Williamson & Wyatt PC, 

Portland, argued the cause and filed the briefs for the 

Accuseds.

Mary A. Cooper, Assistant Disciplinary Counsel, Tigard, 

argued the cause and filed the brief for the Oregon State 

Bar.

Before Balmer, Chief Justice, and Walters, Linder, 

Landau, Brewer, and Baldwin, Justices.**

PER CURIAM

The amended complaints are dismissed.

______________

** Trial Panel Opinion May 7, 2013.

** Kistler, J., did not participate in the consideration or decision of this case.
692 In re Ellis / Rosenbaum

The Oregon State Bar charged the accuseds with violating multiple provisions of the former Code of Professional Responsibility—arising from their representation of a public company and several company directors, officers, and managers in various proceedings over several years—including former DR 5-105(C) 

(waivable former-client conflicts with insufficient disclosure); former DR 5-105(E) 

(nonwaivable current-client conflicts and waivable current-client conflicts with 

insufficient disclosure); and former DR 1-102(A)(3) (misrepresentation by omission). Held: (1) The Bar did not prove by clear and convincing evidence that, at the 

outset of an investigation by the Securities and Exchange Commission (SEC), the 

interests of the company and the individual clients were adverse under former

DR 5-105(A)(2); the Bar therefore did not prove the existence of a current-client 

likely conflict of interest under former DR 5-105(E); (2) The record does not show 

that the clients’ interests were adverse during the SEC investigation, including 

during the Wells phase (in which the SEC notified several clients of its intent 

to pursue civil enforcement actions against them), and therefore did not prove 

a current-client likely conflict under former DR 5-105(E); (3) No actual conflict 

of interest existed between the company and the individual clients during the 

Wells phase under former DR 5-105(A)(1) and former DR 5-105(E); (4) Ellis’s subsequent representation of the company’s general counsel in a lawyer disciplinary 

matter did not involve the same or significantly related matter as the SEC proceeding under former DR 5-105(C)(1), and, therefore, no former-client likely conflict existed under former DR 5-105(C); (5) Assuming that, in a limited representation of the company during a subsequent Department of Justice investigation, 

a likely conflict of interest existed between the company and former clients from 

the SEC representation, the accuseds sufficiently disclosed that conflict to their 

former clients, so as to obtain their consent to the limited representation; and (6) 

the Bar did not prove by clear and convincing evidence that the accuseds engaged 

in misrepresentation by omission under former DR 1-102(A)(3).

The amended complaints are dismissed.
Cite as 356 Or 691 (2015) 693

PER CURIAM

This lawyer disciplinary proceeding involves several allegations under the former Code of Professional 

Responsibility.1

 The accuseds (also individually referred to 

as Ellis or Rosenbaum in this opinion) represented a public company involved in various protracted proceedings over 

several years and also represented some company directors, 

officers, and managers during some of those same proceedings. The Bar charged the accuseds in separate complaints 

with multiple violations of several former Disciplinary 

Rules, including former DR 5-105(C) (waivable former-client 

conflicts with insufficient disclosure); former DR 5-105(E) 

(nonwaivable current-client conflicts and waivable currentclient conflicts with insufficient disclosure); and former DR 

1-102(A)(3) (misrepresentation by omission). A trial panel of 

the Disciplinary Board concluded that, although the Bar had 

not proved most of the charged violations, it did sufficiently 

prove that some client conflicts of interest had existed, that 

the accuseds had made insufficient disclosures as to those 

conflicts, and that the accuseds had made related misrepresentations by omission in a particular conflict disclosure 

letter. The panel determined that a public reprimand was 

the appropriate sanction. The accuseds sought review as to 

all allegations that the panel determined that the Bar had 

proved, and the Bar sought review as to some additional 

allegations that the panel determined had not been proved. 

For the reasons explained below, we dismiss the amended 

complaints.

I. FACTS

We review the record de novo. Bar Rule of Procedure 

(BR) 10.6. The Bar must prove its allegations by clear and 

convincing evidence. BR 5.2. “Clear and convincing evidence” means that “the truth of the facts asserted is highly 

probable.” In re Phinney, 354 Or 329, 330, 311 P3d 517 (2013) 

(internal quotation marks omitted). We set out a general factual summary below and discuss later in this opinion additional facts that relate to particular issues on review. We 

1 The Oregon Rules of Professional Conduct replaced the former Oregon Code 

of Professional Responsibility effective January 1, 2005. In re Balocca, 342 Or 

279, 281 n 1, 151 P3d 154 (2007).
694 In re Ellis / Rosenbaum

draw all facts from the testimony and record before the trial 

panel, and from public court records in related proceedings.2

A. Company Background, Accounting Issues, and Class 

Action Litigation

FLIR Systems, Inc. (FLIR) is a publicly traded 

Portland, Oregon, company that manufactures and sells 

thermal imaging equipment and broadcast camera systems, 

including to governmental entities. In early 2000, key FLIR 

directors, officers, and managers included Daltry (Board of 

Directors Chair), Wynne (board member), Stringer (President

and Chief Executive Officer (CEO)), Samper (Chief Financial 

Officer (CFO)), Martin (Vice President of Sales (Worldwide)), 

Fitzhenry (General Counsel), and Eagleburger (Director of 

Sales Operations and Senior Vice President for Sales and 

Marketing). As CFO, Samper was responsible for FLIR’s 

accounting and preparation of its financial statements.

As the 1990s ended, FLIR’s corporate accounting 

grew more complicated, in part due to recent mergers and 

acquisitions, and installation of a new enterprise reporting 

system. In 1999, FLIR had difficulty completing its financial 

statements on time. At a February 2000 Board of Directors 

meeting, Samper reported that FLIR’s financial statements 

again would not be prepared on time. By that point, at least 

some board members began to doubt the competency of 

management, including Samper’s ability to serve as CFO. 

Samper resigned shortly thereafter.

FLIR then discovered several accounting errors, 

including improperly claimed revenue in 1998 and 1999 

for several transactions that appeared to be without sufficient foundation.3

 As a result of that review, FLIR decided 

2 We take judicial notice of additional facts drawn from judicial opinions and 

court dockets in a related criminal case prosecuted in the United States District 

Court, District of Oregon, and appealed to the Ninth Circuit. See In re Fitzhenry, 

343 Or 86, 109 n 17, 162 P3d 260 (2007) (taking judicial notice of fact in public 

record).

3 In general, the accounting issues concerned FLIR’s “revenue recognition” 

practices—that is, the point in time at which FLIR could confirm with certainty that it could include revenue derived from a particular transaction in its 

financial statements. Several transactions later identified as problematic had 

involved revenue recognized either prematurely or without sufficient supporting 

documentation. 
Cite as 356 Or 691 (2015) 695

to restate certain 1998 and 1999 financial statements previously filed with the Securities and Exchange Commission 

(SEC). In doing so, FLIR’s independent auditor instructed 

FLIR to apply retroactively to the past 1998 and 1999 

transactions a new SEC directive, which dictated a delay 

as to when certain revenue could be recognized in a company’s financial statements. The underlying restatement 

calculations, combined with retroactive application of the 

new directive, ultimately caused a notable drop in FLIR’s 

reported revenue for the identified time frame.

FLIR publicly announced its intent to restate. 

FLIR’s stock price dropped, and, in early March 2000, 

several shareholders filed class action securities litigation 

against FLIR, Stringer, Samper, and eventually Daltry.

Later in March 2000, FLIR retained the accuseds, 

both partners at Stoel Rives LLP, in the class action litigation, and it informed Stringer and Samper that it would pay 

for their representation by the accuseds or other counsel. 

The accuseds sent engagement letters to FLIR, Stringer, 

and Samper, stating that a unified defense was advantageous and that they did not anticipate that any conflict 

would arise, but that each individual defendant might 

wish to consult with independent counsel for monitoring 

purposes; the letter also recommended consultation before 

consenting to the joint representation. Stringer declined 

and retained outside counsel. Samper already had retained 

outside counsel, Glade and Kaner, but decided in consulting 

with them to agree to have the accuseds serve as co-counsel. 

Glade accepted the joint representation on Samper’s behalf, 

noting that—in the unlikely event that an actual conflict 

arose—Samper reserved his rights regarding his consent to 

the accuseds’ continued representation of FLIR. After Daltry 

became a defendant in the class action, he also agreed to the 

joint representation, and he signed a similar consent letter. 

Fitzhenry consented on FLIR’s behalf. When the accuseds 

began representing FLIR, Daltry, and Samper in the class 

action, they understood FLIR’s accounting issues to be the 

result of possible management competency issues and an 

overworked and underesourced accounting staff, but not 

fraudulent actions by any FLIR officer or manager.
696 In re Ellis / Rosenbaum

FLIR ultimately filed three SEC restatements 

between April 2000 and March 2001. The class action litigation eventually settled in April 2001, before discovery, with 

payment by both FLIR’s insurer and FLIR. No allegations 

in this proceeding concern the class action litigation.

At about the time that FLIR retained the accuseds, 

FLIR’s board appointed a special committee, which included 

Wynne, to examine more closely the 1998 and 1999 financial misstatements and underlying accounting problems. In 

working with a prospective new independent auditor, the 

committee determined that it should assess the integrity of 

current management, which at that time included Daltry 

and Stringer (but not Samper, who had resigned, although 

the board had approved retaining him as an independent 

consultant to assist with the restatements). The committee determined that Stringer had engaged in misrepresentations, and the board later decided that he should resign. 

Stringer was placed on administrative leave in May 2000 

and later terminated; Daltry also resigned. By then, Wynne 

had come to question Stringer’s integrity, but not Samper’s; 

instead, he continued to view Samper as having competency 

issues only, and he did not think at this time that FLIR’s 

management had engaged in any fraud.

B. SEC Investigation

Meanwhile, the SEC had begun investigating 

FLIR’s accounting, arising from the same general facts and 

issues alleged in the class actions. The SEC began issuing subpoenas to FLIR officers, managers, and employees 

in late June 2000. At FLIR’s request, the accuseds’ joint

representation—initially formed for the class action litigation—

expanded to include any current or former FLIR officer, 

manager, or employee who received an SEC subpoena 

and who consented to be included in the joint representation. The accuseds continued their joint representation of 

FLIR, Daltry (for purposes of his SEC interview only), and 

Samper (who also continued to be separately represented 

by Glade and Kaner); they also began representing Wynne, 

Fitzhenry, and Eagleburger for purposes of the SEC investigation. The accuseds ultimately represented about 35 to 40 
Cite as 356 Or 691 (2015) 697

individuals, slightly more than half the witnesses that the 

SEC examined.

Although the accuseds represented many individuals in the SEC investigation, they sent only eight engagement 

letters, directed to the individual clients who they thought 

had the greatest potential for future possible conflicts, 

including members of the board, Daltry, and Eagleburger. 

Those letters requested consent to the joint representation 

by using similar wording as the earlier class action letters; 

they did not include any new wording relating to the SEC 

investigation. The accuseds did not send a letter to Samper, 

because he only recently had signed a similar letter in the 

class action involving the same facts. For his part, Glade 

did not necessarily expect the accuseds to send a separate 

engagement letter to Samper, because he assumed that the 

SEC representation would proceed in the same fashion as 

the class action litigation—that is, he and Kaner would 

remain knowledgeable so as to provide independent advice 

to Samper and be available to take over responsibility for 

him as necessary.4

 The accuseds agreed with each other to 

watch for emerging conflicts between their clients.

The joint representation strategy in the SEC investigation was purposeful. According to the testimony of several witnesses before the trial panel, rules governing SEC 

investigations limit information available to subject companies and witnesses, while maximizing the SEC’s ability to 

acquire information. A lawyer is permitted to attend a witness interview only if representing the witness, and the ability to examine transcripts and exhibits shown to witnesses 

during interviews is similarly limited. Joint representation 

therefore permits the company’s attorneys to act as a central 

clearinghouse to obtain, consolidate, and disseminate material information—such as subpoenaed documents and the 

content of other witness interviews—to the joint clients, so 

as to maximize the amount of information flowing to all represented individuals. That global collection of information, 

in turn, helps the company and all involved individuals to 

4 The evidence conflicts as to whether the accuseds sent a separate SEC 

engagement letter to Fitzhenry. Rosenbaum thought that they had sent him such 

a letter, but Ellis recalled that they had not, because they had no expectation that 

the SEC investigation posed any risk to him. 
698 In re Ellis / Rosenbaum

clarify the nature and focus of the investigation, and to provide useful information to the SEC. Also, unless the nature 

of the investigation lends itself to blame-shifting—such as 

cases involving insider trading, embezzlement, or obstruction of justice—the interests of the company and the various witnesses tend to be aligned during the investigation 

phase, because both the company and the witnesses seek to 

provide the SEC with truthful information so as to understand more fully the scope and direction of the investigation, 

and to ameliorate the need for any continued investigation. 

Joint representation therefore is a common practice during 

the SEC investigation phase, when appropriate under the 

circumstances. As part of a joint representation, it also is 

common for some individual witnesses to have their own, 

independent lawyers, who monitor the proceedings to evaluate whether any conflict arises and who later may serve as 

lead counsel for their clients if needed.

During the SEC investigation, subpoenaed witnesses typically sent requested documents to Fitzhenry, and 

he sent them to the accuseds. The accuseds maintained all 

the documents in a room at Stoel Rives in part for SEC staff 

review; if SEC staff then marked a document for production, Stoel Rives would catalogue the document in a FLIR 

database and produce it to the SEC. Also as part of the 

joint representation, either Ellis or, more often, Rosenbaum 

attended all their clients’ SEC interviews. Rosenbaum took 

extensive notes during the interviews that she attended, 

and she provided to individual witness clients or the lawyers of represented witness clients written summaries of 

all information that she learned during the interviews that 

was relevant to that client. The accuseds also provided several interview transcripts to their individual clients or their 

lawyers.

Part of the SEC’s investigation explored Samper’s 

involvement, as CFO, in FLIR’s accounting problems that had 

prompted the restatements. Either Glade and Rosenbaum 

or Kaner and Rosenbaum attended all Samper’s SEC interviews, and Rosenbaum provided to Glade and Kaner comprehensive written summaries of all other witness testimony and other documentation that, in her judgment, was 
Cite as 356 Or 691 (2015) 699

material to Samper’s involvement.5

 The accuseds, Glade, 

and Kaner continuously conferred through the course of the 

SEC investigation regarding the transactions at issue and 

the SEC’s inquiries touching on Samper. For example, early 

in the investigation, a FLIR employee, Chambers, stated 

that Samper had directed the destruction of a document that 

she had created to track inventory. Rosenbaum, Glade, and 

Kaner thereafter provided information to the SEC, through 

Samper, showing that Chambers did not have a full understanding of the situation and that the destruction request 

had been appropriate. By the later part of 2001, Glade and 

Kaner continued to think that Samper did not have any conflicting interest with FLIR of which the accuseds would have 

been aware,6

 and they continued to think that Samper’s and 

FLIR’s interests aligned.

The SEC focused on numerous specific transactions during its investigation, including a $4.6 million 1999

transaction—the “Swedish Drop Shipment”—that had 

prompted FLIR’s second SEC restatement. Samper had mentioned that transaction to the SEC, and the SEC questioned 

both Samper and Stringer about its underlying entries. 

Samper told the SEC that Stringer had directed him to 

make certain entries and therefore he had done so, but FLIR 

later changed those entries in its second restatement.

Also during the SEC interviews, several of the 

accuseds’ individual clients offered statements that arguably could be construed as unfavorable to other clients, 

particularly Samper. The accuseds continued to evaluate 

whether any conflict among various clients had arisen, 

but they determined that their clients’ interests remained 

5 The record shows that Rosenbaum sent Glade and Kaner a significant 

volume of documentation and also provided their law firm with a copy of Stoel 

Rives’s FLIR database. 

6 Samper and FLIR had a dispute about the terms of an earlier agreement 

between them, concerning Samper’s exercise of stock options following termination of employment. That dispute prompted Samper to think that his relationship 

with FLIR was becoming more adverse through the course of the SEC investigation. The accuseds were not aware of that issue, however; indeed, Glade testified 

that he did not involve Rosenbaum in any options dispute discussion because he 

did not want to taint her relationship with Samper or FLIR for purposes of the 

SEC investigation. Glade further testified that Samper ultimately decided to continue the joint representation notwithstanding the options dispute. 
700 In re Ellis / Rosenbaum

aligned and therefore made no additional disclosures during 

the investigation phase.7

As the SEC investigation progressed, Wynne 

worked with a new FLIR controller, Muessle, who had 

reviewed multiple earlier recorded transactions and determined that many should not have been entered due to insufficient supporting documentation. By spring 2001, Wynne 

concluded that FLIR’s former management had engaged in 

securities fraud. As to Samper specifically, Wynne concluded 

that Samper had made entries and submitted financial 

statements that contained figures manipulated as a result 

of fraud, which, in Wynne’s view, satisfied the definition of 

securities fraud, even if Samper himself had not manipulated any figures. The accuseds were unaware until several 

years later that Wynne had reached that general conclusion 

about Samper.

Meanwhile, in July 2001, Stringer sued FLIR for 

wrongful termination, and the accuseds’ firm, Stoel Rives, 

represented FLIR in that action. The complaint eventually 

was dismissed with prejudice in 2003.

The SEC investigation effectively concluded near 

the end of 2001. Typically, at the close of an SEC investigation phase, the SEC decides whether to send a “Wells 

Notice” to the company or other individuals. A Wells Notice 

is an official notification that outlines the SEC’s potential 

case against the recipient, laying the groundwork for a possible civil enforcement action. During the “Wells phase,” 

each Wells Notice recipient typically meets separately with 

the SEC to discuss the SEC’s theory of its case against that 

recipient. A Wells Notice recipient then may file a “Wells 

Submission” that offers a specific response to the Wells 

Notice. Often, the Wells process frames ensuing settlement 

negotiations between the SEC and a Wells Notice recipient.

7 The SEC interviewed many other witnesses who were not the accuseds’ 

clients, including Stringer, a previous FLIR controller, the previous and current 

FLIR auditors, and a previous FLIR Vice President of Manufacturing, who some 

inside FLIR suspected had initiated the SEC investigation. More than half the 

SEC’s interview time in its investigation was devoted to witnesses who were not 

the accuseds’ clients. Under the SEC’s investigation rules, the accuseds were not 

privy to any information provided by witnesses whom they did not represent and 

therefore did not know the extent to which those witnesses might have testified 

unfavorably as to Samper or their other clients.
Cite as 356 Or 691 (2015) 701

In February 2002, the SEC issued Wells Notices to 

FLIR and Samper, indicating its intention to recommend separate civil enforcement actions against them. The SEC also 

issued similar Wells Notices to Fitzhenry and Eagleburger,8

which the accuseds had not anticipated, and to others who 

were not the accuseds’ clients, including Stringer; Martin 

(FLIR’s former Vice President of Sales (Worldwide), who 

effectively had been terminated in spring 2000); and FLIR’s 

previous auditor. Ellis immediately advised Fitzhenry and 

Eagleburger to obtain independent counsel, and they both 

did so. Wilson began representing Fitzhenry, and Neil began 

representing Eagleburger; as to both clients, the accuseds 

remained available as supporting co-counsel. As to Samper, 

Glade and Kaner took the lead in his representation during 

the Wells phase, with the accuseds moving to a supporting 

co-counsel role as needed. The accuseds continued to represent FLIR.

In early March 2002, FLIR had its Wells meeting 

with the SEC, which included Wynne, the accuseds, and 

FLIR’s then-current CEO, Lewis. At that meeting, FLIR 

emphasized its remediation efforts. Also at the meeting, SEC 

staff questioned both Samper’s and Fitzhenry’s truthfulness, 

based on their investigation. After the meeting, Rosenbaum 

reported the general discussion to Glade and Kaner, and 

also to Neil, once he began representing Eagleburger. Among 

other things, Rosenbaum told Kaner that the SEC thought 

that Samper had not been forthcoming.

Samper’s Wells meeting was scheduled for the following week. Before that meeting, Ellis left a long voicemail 

message for Glade that emphasized the SEC’s strident tone 

in FLIR’s Wells meeting; emphasized the SEC’s certitude 

that wrongdoing had occurred, including by Samper; and 

recommended possible approaches for Samper. Glade and 

Kaner—but not the accuseds—attended Samper’s Wells 

meeting. Even with Ellis’s forewarning, they were shocked 

by the SEC’s tone and negative view of Samper. In the 

course of discussing its case against Samper, the SEC told 

Glade and Kaner that Rosenbaum had represented most of 

8 The SEC issued Eagleburger’s Wells Notice in mid-March 2002, after FLIR 

filed its Wells Submission, as described later in the text.
702 In re Ellis / Rosenbaum

the witnesses who purportedly had implicated Samper in 

problematic transactions.

Rosenbaum was out of the country during Samper’s 

Wells meeting, but she e-mailed Glade afterwards to ask how 

it had gone. Glade responded that it was “what you would 

expect” and had involved familiar transactions, that the 

SEC was relying on FLIR employees who did not have firsthand knowledge of key events, and that the SEC thought 

that Samper had been disingenuous at best. Rosenbaum 

and Glade then exchanged thoughts about Samper preparing a Wells Submission; Glade’s side of the communication 

acknowledged that Rosenbaum had been supplying him 

with her witness notes all along, suggesting that he already 

had been privy to statements about Samper from Stoel 

Rives-represented witnesses on which the SEC had relied in 

Samper’s Wells meeting.

The accuseds, Wynne, and Fitzhenry drafted 

FLIR’s Wells Submission, filed in March 2002. FLIR’s 

Wells Submission purposefully focused on current management’s remediation efforts since discovery of the 1998 and 

1999 accounting issues. FLIR emphasized a near-complete 

turnover of management and auditors, and its expansion 

and strengthening of its accounting personnel and controls, including removal of senior management responsible 

for FLIR’s troubles. FLIR described the earlier accounting issues as “errors” or “problems,” not “fraud.” FLIR also 

stated that, to the extent that any wrongdoing might have 

occurred, FLIR understood that the SEC was “pursuing 

fraud claims against one or more individuals who may 

have been responsible.” In crafting its Wells Submission, 

FLIR intended to refer to only Stringer and Martin as the 

senior management who had been “removed” and against 

whom the SEC was “pursuing” further action. FLIR’s Wells 

Submission did not expressly take any position or make 

any characterization about Samper, Daltry, or Eagleburger, 

although it did comment favorably on Samper’s cooperation with the SEC; it also included an expressly favorable 

statement about Fitzhenry, who was the only member of the 

current senior management team who had worked at FLIR 

in 1998 and 1999, and so the drafters thought it important 

to offer a positive comment about his ongoing employment. 
Cite as 356 Or 691 (2015) 703

At the time that FLIR prepared its Wells Submission, the 

accuseds had concluded that Stringer and Martin—but not 

Samper or any of their other clients—had acted fraudulently 

in relation to FLIR’s 1998 and 1999 accounting errors.

Upon receipt of FLIR’s Wells Submission, Glade 

reviewed it and construed it as inferentially referring to 

Samper as a bad actor. Ellis, however, assured Glade that 

FLIR had not intended to identify Samper as a culpable 

actor; instead, FLIR’s Wells Submission focused on forwardlooking remediation only. Glade and Kaner continued to represent Samper through the Wells phase, with the accuseds 

continuing as supporting co-counsel, communicating almost 

daily with Glade and Kaner. Samper ultimately did not file 

a Wells Submission.

Fitzhenry and Eagleburger also each had Wells 

meetings with the SEC, attended by their respective independent counsel and Ellis. Ellis worked on a draft Wells 

Submission for Eagleburger at Neil’s request.

Individual negotiations with the SEC commenced 

thereafter, resulting in separate settlement orders, finalized 

in judgment form by October 2, 2002, between the SEC and 

FLIR, Samper, and Eagleburger; an order as to Fitzhenry 

issued later, in November 2002.9

 The accuseds represented 

9 Among other things, the SEC’s judgment against FLIR set out several 

SEC findings of fraud—which FLIR neither admitted nor denied—relating to 

FLIR’s revenue recognition practices and other accounting and related activities. 

The order included a “cease and desist” provision, respecting future violations 

of federal securities law, and, because of the fraud findings, it also removed for 

a five-year period FLIR’s “safe harbor” protection under federal securities law. 

(Witnesses testified that, when in place and when predicate conditions are met, 

the “safe harbor” protection shields a public company from legal actions based 

on incorrect financial projections.) As a result of its SEC judgment, FLIR also 

was later required to defend against a costly debarment proceeding, which—had 

debarment been ordered—would have prohibited FLIR from selling its products 

to the federal government, a key customer.

The SEC’s judgment against Samper permanently enjoined him from engaging in several particular actions in violation of federal securities law; imposed 

a civil penalty of $110,000 and a disgorgement order of $52,500 plus interest; 

and permanently prohibited him from serving as an officer or director of a company that issued securities or was required to file SEC reports. The SEC’s judgment against Eagleburger contained several injunction provisions similar to 

the judgment against Samper and imposed a civil penalty of $25,000. The SEC 

order against Fitzhenry precluded him from practicing before the SEC for five
704 In re Ellis / Rosenbaum

FLIR in its negotiations, but did not participate in negotiations involving the three individual clients, who instead 

continued to be represented by their respective independent counsel. Following finalization of the SEC settlements, 

the accuseds considered their representation of Samper, 

Fitzhenry, and Eagleburger—and of Daltry, who had not 

received a Wells Notice—to be at an end. Stringer did not 

settle with the SEC, and the SEC later filed a complaint 

against him.

In the same general timeframe as the SEC Wells 

process and settlements, FLIR continued to defend against 

Stringer’s wrongful termination action. Wynne, who by now 

had replaced Fitzhenry as FLIR’s General Counsel, determined that the SEC’s open Stringer investigation might be 

helpful to FLIR in defending against his wrongful termination action. After the SEC settlements against FLIR and 

Samper had been finalized, Wynne reviewed the SEC’s complaint against Stringer and was surprised that it did not 

include any allegation about the Swedish Drop Shipment 

entry, which Wynne thought was the most egregious example of financial irregularity tied directly to Stringer. Wynne 

also thought that that entry—which never had identified 

either an underlying transaction or product—was critical to FLIR’s defense against Stringer’s pending wrongful 

termination action because it tended to justify Stringer’s 

termination. Wynne therefore asked Rosenbaum, in her 

capacity as FLIR’s counsel, to contact the SEC and inquire 

about the absence of that entry from the SEC’s complaint 

against Stringer. At that time, Rosenbaum considered her 

representation of all the joint representation clients other 

than FLIR to be over; also, both she and Ellis thought that 

the Swedish Drop Shipment entry implicated Stringer, but 

not Samper, who no longer had a pending action before the 

SEC. Rosenbaum called the SEC on October 3, 2002, conveying Wynne’s offer that FLIR would assist the SEC in 

its case against Stringer and noting Wynne’s surprise that 

the SEC’s complaint against Stringer did not mention the 

Swedish Drop Shipment.

years. The settlements with all three individual clients incorporated consents to 

entry of judgment or order, in which the clients neither admitted nor denied the 

allegations in the SEC complaints against them.
Cite as 356 Or 691 (2015) 705

C. Fitzhenry’s Bar Matter

Also in October 2002, Fitzhenry asked Ellis to 

self-report to the Bar on Fitzhenry’s behalf, regarding an 

acknowledgment in Fitzhenry’s Wells Submission and SEC 

settlement order that he had signed an inaccurate management representation letter in 1999, in reliance on prior signatures from Stringer, Samper, and others.10 Ellis notified 

the Bar and sent a confirming letter in November 2002, 

explaining that Fitzhenry by his signature had intended 

to verify only the legal—not accounting—representations 

made in the management representation letter and that 

he otherwise had relied on FLIR’s CEO (Stringer), CFO 

(Samper), and outside auditors for verification that a particular sale referred to in the letter could be recorded and 

that the accounting representations were therefore accurate. The next month, Ellis sent the Bar additional materials and a longer letter that, among other things, reiterated 

that Samper, as CFO and also a signatory on the letter, was 

a person directly responsible for accounting issues at FLIR 

and that Samper had assured Fitzhenry that the representations in the letter were accurate. The Bar filed a complaint 

against Fitzhenry in November 2003, and Ellis thereafter 

represented him in his Bar matter. This court ultimately 

suspended Fitzhenry for 120 days, for violating former

DR 1-102(A)(3) (conduct involving misrepresentation). In re 

Fitzhenry, 343 Or 86, 162 P3d 260 (2007).

D. Department of Justice Investigation

In January 2003, an Assistant United States 

Attorney, Garten, told Ellis that the Department of Justice 

(DOJ) was opening a criminal investigation into FLIR’s 

accounting. None of the involved lawyers who testified at 

the trial panel hearing—including the accuseds—had anticipated a criminal investigation, and they all were surprised 

to learn about it.11 Over the next several weeks, Garten and 

10 The letter was a negative assurance letter to FLIR’s independent auditor, 

intended to represent that its contents—which concerned several transactions—

were accurate to the best of each signatory’s belief. Daltry, Stringer, Samper, and 

others had signed the letter before Fitzhenry. 

11 According to testimony in the record, in the early 2000s, if the DOJ became 

interested in the target of an SEC investigation, then the SEC investigation typically would be stayed and the DOJ would commence its own investigation. That 
706 In re Ellis / Rosenbaum

the accuseds either met or communicated several times, and 

the accuseds produced FLIR documents to the DOJ or the 

FBI at Garten’s request. As discussed below and later in 

this opinion, the nature of the conversations and extent of 

the document production underlie some of the Bar’s conflict 

of interest and misrepresentation allegations.

Garten initially told the accuseds that he did not 

intend to target FLIR, but he pressed for both FLIR and the 

accuseds personally to cooperate with the DOJ in building a 

case against all potential defendants. In a subsequent meeting that Ellis attended, Lewis assured Garten that FLIR 

would cooperate, but the accuseds did not think that they 

ethically could assist in a case against their former clients.

Garten later wrote to the accuseds and reiterated 

his request that they cooperate; his letter also suggested 

that FLIR had requested immunity.12 Garten eventually 

withdrew his request for the accuseds’ personal cooperation, 

although he continued to request assistance with document 

production and witness scheduling. Garten also told the 

accuseds in his last meeting with them that, as to Daltry 

and Fitzhenry but not Samper, he might not pursue individual criminal cases if they cooperated. Garten later sent 

a confirming e-mail that continued to request the accuseds’ 

assistance in witness scheduling and reiterated an earlier 

document request. Thereafter, the accuseds had no direct 

contact with Garten other than document production—

which by this time was ongoing—and witness scheduling.

On the same day as the accuseds’ last meeting with 

Garten, Rosenbaum told Glade—and later confirmed in 

writing—that FLIR was not a DOJ target and that Samper 

practice began to change after the Enron scandal that began in 2001, with its 

ensuing criminal prosecutions that continued for years afterward. Here, unbeknownst to the accuseds and other participants in the SEC proceeding, the SEC 

and the DOJ had been communicating about the FLIR investigation since summer 2000.

As to Samper specifically, the accuseds, Glade, and Kaner all thought 

throughout the SEC investigation that Samper had not acted fraudulently and 

did not think at the time of Samper’s SEC settlement that he would need a criminal attorney. 

12 As explained later in this opinion, other evidence in the record—including 

testimony from various witnesses and a subsequent declaration from Garten—

showed that the DOJ did not make any immunity arrangement with FLIR.
Cite as 356 Or 691 (2015) 707

and others, including Daltry, Fitzhenry, and Eagleburger, 

might need lawyers in connection with the DOJ investigation. Her confirming letter to Glade also stated that the 

accuseds expected to continue to assist FLIR with document production and witness scheduling. Rosenbaum sent 

a similar letter to Eagleburger’s independent counsel, Neil. 

Rosenbaum also eventually reached Daltry; on her recommendation, Daltry immediately retained criminal defense 

counsel, Myers. Rosenbaum told Myers about Garten’s document requests, that FLIR was not a DOJ target, and that 

Garten was inclined to give Daltry immunity if he cooperated; Ellis reiterated several of those points to Myers the 

next day. By about this time, Stoel Rives had sent numerous 

FLIR documents to either the DOJ or the FBI—many were 

part of the public record, and many, but not all, had been 

produced to the SEC previously.

In late February 2003, after meeting with Garten 

to reiterate FLIR’s intent to cooperate, Wynne proposed to 

the accuseds that FLIR retain separate counsel as to the 

DOJ investigation but that the accuseds continue to produce 

FLIR documents as needed and to schedule witness interviews.13 The accuseds tentatively agreed and determined 

that they were not obligated to make any disclosure about 

the arrangement to Daltry, Samper, or Eagleburger. They 

nonetheless decided, in the exercise of caution, to send a disclosure letter and obtain consent.

On March 3, 2003, Rosenbaum sent a disclosure letter to FLIR and also, in care of their individual counsel, to 

Daltry, Samper, and Eagleburger. The letter explained that 

FLIR was cooperating with the DOJ and did not expect to be 

a defendant; that Stoel Rives had been asked to advise FLIR 

and assist in producing documents and scheduling witness 

interviews; that the investigation related to the accuseds’ 

earlier representations of Daltry, Samper, and Eagleburger, 

and had potentially adverse consequences to them; and 

that Stoel Rives would not voluntarily disclose either client 

confidences or information or materials arguably subject 

13 The accuseds characterize that arrangement as “Stoel Rives’s ministerial

role.” We refer to the arrangement as the accuseds’ limited representation of 

FLIR during the DOJ investigation.
708 In re Ellis / Rosenbaum

to confidentiality claims. The former clients all consented. 

In the meantime, the accuseds scheduled further witness 

interviews and had produced more documents to the DOJ. 

For its part, FLIR retained other counsel to represent it in 

other aspects of the DOJ investigation.

In September 2003, Stringer, Martin, and Samper 

were indicted in United States District Court for criminal 

securities violations. They moved to dismiss, asserting violations of due process and self-incrimination protections stemming from surreptitious cooperation between the SEC and 

the DOJ. Samper further argued that the government had 

taken unfair advantage of the accuseds’ purported conflict 

of interest. The District Court agreed with the defendants’ 

arguments and dismissed the indictments in 2006, but 

the Ninth Circuit vacated the dismissals in 2008.14 United 

States v. Stringer, 535 F3d 929, 942 (9th Cir 2008). The 

Ninth Circuit decision brought the case to the Bar’s attention. None of the clients or lawyers involved complained to 

the Bar about the accuseds’ conduct.

E. Bar Complaints and Trial Panel Hearing and Decision

The Bar filed amended complaints against the 

accuseds in February 2012, alleging violations of former DR 

1-102(A)(3) (misrepresentations by omission) (one cause and 

one alternative cause as to each); former DR 5-105(C) (formerclient conflict) (one alternative cause as to each, and one additional cause as to Ellis); and former DR 5-105(E) (currentclient conflict) (nine causes as to Rosenbaum, and 10 as to 

Ellis). The amended complaints were identical, except that 

the complaint against Ellis contained two additional allegations concerning his representation of Fitzhenry in the latter’s Bar matter.

The trial panel conducted a hearing in 2012 and 

concluded in 2013 that the Bar had not proved most of the 

alleged violations, but had proved some violations, and further determined that the appropriate sanction was a public 

reprimand. The accuseds requested review of all the panel’s 

conclusions that violations had occurred, and the Bar raised 

14 The DOJ eventually moved to dismiss most of its charges against Stringer 

and Samper, but ultimately obtained one misdemeanor conviction, for receiving 

stolen money, as to each of them.
Cite as 356 Or 691 (2015) 709

additional challenges to several panel conclusions that no 

violation had occurred. We summarize the panel’s decisions 

at issue on review in our discussion below.

II. DISCIPLINARY RULES

As noted, the Bar’s complaints alleged misconduct 

under the former Code of Professional Responsibility.15 Former

DR 5-105 set out the client-conflict rules and provided, in part:

“(A) Conflict of Interest. A conflict of interest may be 

actual or likely.

“(1) An ‘actual conflict of interest’ exists when the 

lawyer has a duty to contend for something on behalf of 

one client that the lawyer has a duty to oppose on behalf of 

another client.

“(2) A ‘likely conflict of interest’ exists in all other situations in which the objective personal, business or property 

interests of the client are adverse. A ‘likely conflict of interest’ does not include situations in which the only conflict is 

of a general economic or business nature.

“* ****

“(B) Knowledge of Conflict of Interest. For purposes 

of determining a lawyer’s knowledge of the existence of a 

conflict of interest, all facts which the lawyer knew, or by 

the exercise of reasonable care should have known, will be 

attributed to the lawyer.

“(C) Former Client Conflicts—Prohibition. Except as 

permitted by [former] DR 5-105(D), a lawyer who has represented a client in a matter shall not subsequently represent another client in the same or a significantly related 

matter when the interests of the current and former clients 

are in actual or likely conflict. Matters are significantly 

related if either:

“(1) Representation of the present client in the subsequent matter would, or would likely, inflict injury or damage upon the former client in connection with any proceeding, claim, controversy, transaction, investigation, charge, 

15 We quote the former disciplinary rules at issue from the 2000 version of 

the former Code of Professional Responsibility. The text from the 2000 versions of 

the rules remained the same through 2004, which spans the years of the events 

at issue in this case.
710 In re Ellis / Rosenbaum

accusation, arrest or other particular matter in which the 

lawyer previously represented the former client; or

“(2) Representation of the former client provided the 

lawyer with confidences or secrets as defined in [former] 

DR 4-101(A), the use of which would, or would likely, inflict 

injury or damage upon the former client in the course of the 

subsequent matter.

“(D) Former Client Conflicts—Permissive Representation. A lawyer may represent a client in instances otherwise 

prohibited by [former] DR 5-105(C) when both the current 

client and the former client consent to the representation 

after full disclosure.

“(E) Current Client Conflicts—Prohibition. Except as 

provided in [former] DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such 

representation would result in an actual or likely conflict.

“(F) Current Client Conflicts—Permissive Representation. A lawyer may represent multiple current clients in 

instances otherwise prohibited by [former] DR 5-105(E) 

when such representation would not result in an actual 

conflict and when each client consents to the multiple representation after full disclosure * * *.”

Former DR 10-101(B) established the requirements for “full 

disclosure” under former DR 5-105; it provided, in part:

“(1) ‘Full disclosure’ means an explanation sufficient 

to apprise the recipient of the potential adverse impact on 

the recipient, of the matter to which the recipient is asked 

to consent.

“(2) As used in * ** [former] DR 5-105 * **, ‘full disclosure’ shall also include a recommendation that the recipient seek independent legal advice to determine if consent 

should be given and shall be contemporaneously confirmed 

in writing.”

Finally, former DR 1-102(A) provided, in part:

“(A) It is professional misconduct for a lawyer to:

“*****

“(3) Engage in conduct involving dishonesty, fraud, 

deceit or misrepresentation.”
Cite as 356 Or 691 (2015) 711

Below, we address each of the trial panel’s conclusions concerning the rules set out above that are at issue on 

review. Our discussion is organized in the same chronological order in which the underlying events occurred.

III. FIRST CAUSE—FORMER DR 5-105(E),

CURRENT-CLIENT LIKELY CONFLICTS

AT OUTSET OF SEC INVESTIGATION

A. Trial Panel Decision, Parties’ Contentions on Review, 

and General Discussion

The first cause alleged that the accuseds had violated former DR 5-105(E) when they agreed to represent 

FLIR on the one hand, and Daltry, Samper, Fitzhenry, and 

Eagleburger on the other, at the outset of the SEC investigation, with insufficient disclosure and consent concerning 

likely conflicts of interest.16 The trial panel concluded that 

no likely conflict of interest existed. The Bar challenges 

that conclusion on review, arguing in part that the panel 

incorrectly applied the “actual conflict” standard under former DR 5-105(A)(1), instead of the “likely conflict” standard 

under former DR 5-105(A)(2). The Bar contends that, under 

that latter standard, the interests of FLIR, Daltry, Samper, 

Fitzhenry, and Eagleburger were adverse because, although 

they all hoped that the SEC would find no misconduct, they 

each had an interest in protecting themselves if it did—

including, to the extent necessary, identifying and testifying 

against possible wrongdoers in the group. The Bar continues that the SEC was likely to share its information with 

other agencies for use in future criminal, disciplinary, or 

other proceedings, in which Fifth Amendment incrimination 

implications and professional licenses might have been at 

stake. The Bar also asserts that any self-protective step that 

an individual client might have taken during the SEC investigation in turn might have been adverse to FLIR, which 

had an interest in setting a cooperative tone with the SEC. 

The Bar then argues that the accuseds’ disclosure letters did 

16 The complaint alleged additional clients, but we address only those clients 

whom the Bar has identified on review. Further, throughout this opinion, we have 

addressed only particular current or former clients and particular issues that—

in collective consideration of the complaint allegations, the trial panel’s opinion, 

and the parties’ arguments in their briefs—are properly at issue on review.
712 In re Ellis / Rosenbaum

not satisfy the “full disclosure” requirements under former

DR 10-101(B), to ensure informed consent to the joint representation, and also that—because they did not send him a

letter—no disclosure at all had been made to Samper.17

The accuseds disagree that FLIR and the identified 

individual clients had adverse interests at the outset of the 

SEC investigation, and they assert that the trial panel therefore correctly determined that no likely conflict of interest 

existed. The accuseds point to evidence demonstrating—in 

their view—that the Bar’s adversity theories are incorrect 

and that, instead, their multiple representation strategy 

in the context of the SEC investigation was a common and 

widely accepted practice that was both effective and ethical. 

The accuseds relatedly argue that, even if any likely conflict 

of interest existed, they disclosed all material information 

to their clients so as to obtain their informed consent to the 

joint representation.

The Bar is correct that its first cause focused on 

“likely” current-client conflicts, rather than “actual” conflicts, at the outset of the SEC investigation. The Bar is also 

correct that the trial panel nonetheless concluded that no 

“actual” conflict had existed because the accuseds had no 

duty at that point in time to contend for a position on behalf 

of one client that they had a duty to oppose on behalf of 

another, under former DR 5-105(A)(1). However, the panel 

17 The complaints refer in the first cause to alleged conflicts arising only 

“[w]hen [the accuseds] undertook to represent” all the clients in the SEC joint 

representation and refer in the second cause to further alleged conflicts arising 

during the investigation stage, through the course of witness interviews and ending with the Wells phase. The trial panel concluded that the Bar had not proved 

the allegations in the first cause, but, in reaching that conclusion, it extensively 

addressed facts arising during the SEC investigation up to the Wells phase, not 

those in existence at the outset of the investigation. In its brief, the Bar identifies 

both the first and second causes as being at issue on review; however, it—like the 

panel—primarily treats the first cause as relating to activities during the SEC 

investigation up to the Wells phase (with some limited argument about conflicts 

at the outset of the representation) and the second cause as concerning the Wells 

phase.

Consistently with the amended complaints and the Bar’s identification of 

the causes and issues on review, we consider allegations and arguments about 

conflicts at the outset of the SEC investigation as part of the first cause, and we 

then consider the panel’s determinations relating to ongoing investigation issues 

before and during the Wells phase—and the parties’ respective arguments about 

those determinations—as part of the second cause. 
Cite as 356 Or 691 (2015) 713

also concluded that the interests of FLIR and the individual clients were not “adverse” or in likely conflict during 

the SEC investigation process—amounting to an effective 

determination that no such conflict had existed at the outset 

of the SEC investigation. We proceed to address the Bar’s 

challenge under this cause by determining whether a likely 

conflict existed.

Under former DR 5-105(A)(2), a likely conflict exists 

when the “objective, personal, business or property interests 

of the clients are adverse.” Concerning a multiple client representation, the specific question under former DR 5-105(A)(2)

is whether the client interests “are adverse” (emphasis 

added) at the time that the lawyer seeks to undertake the 

representation, not whether they might be adverse in the 

future. See In re Hostetter, 348 Or 574, 594, 238 P3d 13 

(2010) (so stating; focus is whether respective interests were 

“adverse from the outset,” not whether client injured later as 

result of a conflict). Indeed, the fact that a conflict develops 

later does not mean that adversity existed at the outset. See 

In re Samuels/Weiner, 296 Or 224, 230, 674 P2d 1166 (1983) 

(court rejected Bar’s prediction of potential future conflicts 

in partnership and reliance on ultimate breakdown of partners’ relationship to support allegations under earlier version of former DR 5-105(A)).

Respecting “adverse” interests, this court has noted 

under an earlier version of former DR 5-105 that a lawyer’s 

independent judgment can be adversely affected when two 

or more clients “have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.”18 In re Johnson, 300 Or 52, 58 n 4, 707 P2d 573 

(1985) (internal quotation marks omitted); see also Webster’s 

Third New Int’l Dictionary 31 (unabridged ed 2002) (defining “adverse,” in part, as “acting against or in a contrary direction: OPPOSING * ** : HOSTILE, OPPOSED, 

ANTAGONISTIC ** * 2 a : in opposition to one’s interests

: DETRIMENTAL, UNFAVORABLE”). This court has identified many scenarios involving readily identifiable client 

18 Former DR 5-105(B) (1984) provided that “[a] lawyer shall not continue 

employment if the exercise of his independent professional judgment in behalf 

of a client will be or is likely to be adversely affected by his representation of 

another client, except to the extent permitted under DR 5-105(C).”
714 In re Ellis / Rosenbaum

interests that are adverse by their nature, such as debtorcreditor relationships, Hostetter, 348 Or at 593; spousal and 

similar relationships with opposing legal interests, In re 

Lawrence, 337 Or 450, 461, 98 P3d 366 (2004) (alleged batterer and victim); In re Cohen, 316 Or 657, 661-62, 853 P2d 

286 (1993) (spouses with diverging interests in different

proceedings—criminal mistreatment case for husband, 

related juvenile case in which children might be taken from 

wife); and criminal coconspirators or codefendants, In re 

Jeffery, 321 Or 360, 370-71, 898 P2d 752 (1995); In re O’Neal, 

297 Or 258, 260-66, 683 P2d 1352 (1984). In those circumstances, the court has explained that the conflicts rules 

guard against a lawyer’s impaired judgment or divided loyalty arising from differing client interests. See O’Neal, 297 

Or at 264 (lawyer who undertakes multiple client representations involving differing interests must carefully weigh 

possibility that the lawyer’s judgment might be impaired or 

loyalty divided); In re Porter, 283 Or 517, 521-22, 584 P2d 

744 (1978) (to same general effect).

By contrast, this court also has explained that 

the interests of multiple clients might be consistent—and 

therefore not adverse—at the time that the lawyer seeks to 

undertake a new representation. In In re Cobb, 345 Or 106, 

190 P3d 1217 (2008), for example, the accused lawyer represented several investors who were part of investor partnerships in a company involved in questionable tax dealings. 

The lawyer first represented the investors in “test cases” 

against Internal Revenue Service (IRS) personnel and later 

represented the investor partnerships in challenging the 

disallowance of certain IRS deductions. Id. at 110-11. An 

entity associated with the company later filed Chapter 11 

bankruptcy, and the investor partnerships retained the 

same lawyer to protect their interests—including assets—in 

that proceeding. Id. at 111. Unrelated creditors later forced 

the entity and the company into Chapter 7 bankruptcy, and 

the lawyer represented the debtor company in that proceeding for the sole purpose of raising a jurisdictional defense 

that might have resulted in dismissal of the bankruptcy. Id.

at 112. The Bar argued that the lawyer had a current-client 

likely conflict of interest when he represented the investor 

partnerships in the Chapter 11 proceeding and the company 
Cite as 356 Or 691 (2015) 715

in the Chapter 7 proceeding, asserting what the Bar contended were adverse positions. This court disagreed, reasoning that the lawyer’s assertions in both proceedings were 

consistent with each other.19 Id. at 133 n 18. The court also 

explained, in the course of rejecting a related conflicts argument on the Bar’s part, that the interests of the investor 

partnerships and the company were not those of creditordebtor at the time in question. Id. at 133.

In sum, our task in determining whether the 

accuseds’ clients’ interests were adverse at the outset of the 

SEC investigation under former DR 5-105(A)(2) involves 

determining from the record whether—at that point in 

time—those interests were contrary or in opposition to one 

another, or, instead, were consistent or aligned. We now turn 

to the record to determine whether the Bar proved by clear 

and convincing evidence that the accuseds’ clients’ interests 

were adverse at the outset of the SEC investigation.

B. No Likely Conflicts at Outset of SEC Investigation

Several witnesses testified as to the nature of the 

respective clients’ interests at the outset of the multiple representation. Ellis, who was experienced in the field, testified 

that a public company subject to an SEC investigation has 

two principal interests: to move the process along quickly 

toward resolution, and to maintain public confidence. The 

company’s board has similar interests, plus an additional 

interest in assuring itself that current management maintains accurate financial statements. Officers—who run the 

risk of liability for past conduct—also share the same interests as the company and have an additional interest in not 

being damaged by speculative testimony. Employees have 

an interest in avoiding workplace difficulties, such as fear 

of retaliation at work or instability of the employer. And, all 

witnesses have an interest in avoiding becoming embroiled 

in any “process violation” during the investigation, such as 

SEC accusations of untruthful testimony, failure to produce 

19 According to the court, in the Chapter 11 proceeding, the lawyer had 

argued on behalf of the investor partnerships that they had financial means to 

maintain the assets and that their continuing payments to the company would 

enable the company to meet other obligations. Similarly, in the Chapter 7 proceeding, the lawyer had taken the position that the investor partnerships’ payments were made for purposes of preserving the assets. Cobb, 345 Or at 133 n 18.
716 In re Ellis / Rosenbaum

requested documentation, or obstruction of justice. Ellis continued that all those identified interests are served by encouraging truthful, nonspeculative testimony and cooperation 

with the investigation. Ellis rejected the notion—advanced 

by the Bar—that FLIR had an interest in restricting the 

flow of information to the SEC, which would have invited a 

process violation accusation and could have breached FLIR’s 

fiduciary duties as a public company; instead, FLIR, like the 

other clients, had an interest in fully cooperating.

Ellis further testified that individual clients did not 

have the same risks, at the outset of this SEC investigation, 

that they might have in other litigation contexts. For example, under federal law, potential SEC enforcement defendants at that time were not subject to cross-claims for contribution or other proportionate fault sharing arguments. 

And, insurance in the SEC investigation context typically 

covered defense costs for both the company and the individual directors and officers, but not settlement costs, so the 

clients had no conflicting settlement interests in a common 

insurance fund.

Both Ellis and Rosenbaum (also experienced in the 

field) explained that an SEC investigation differs from private securities litigation in other ways, in that (1) no formal 

charges or allegations have been made; (2) the investigation 

is factual only—here, to determine if FLIR’s restatements 

were due to innocent errors or fraud—and witnesses are 

expected only to answer questions to the best of their ability, with no cross-examination; (3) lawyers serve as counsel 

for witnesses to prepare for and attend interviews, but do 

not sponsor the witnesses as a lawyer would in trial; and

(4) lawyers do not advocate in any way for any client. 

Relatedly, it was not in any client’s interest to project blame 

on other clients during the SEC investigation stage. As Ellis 

put it, in the context of an investigation concerning accounting irregularities, a securities violation either occurred or 

did not occur, and no client has an interest in encouraging 

the SEC to pursue any particular individual.

Finally, Ellis and Rosenbaum both testified that 

each of their clients had an interest in learning as much 

as possible about the SEC’s investigation, which the joint 
Cite as 356 Or 691 (2015) 717

representation—as arranged at the outset—permitted them 

to do. By responding to document requests, attending witness interviews, and reviewing related documentation, the 

accuseds were able to alert each client to particular transactions at issue and witness testimony relevant to their own 

interview preparation, so that they in turn could provide more 

refreshed, forthright, and honest testimony. The Bar did not 

effectively counter any of the above-summarized testimony.

As to the individual clients, Glade and Kaner confirmed that the accuseds’ joint representation was advantageous to Samper and that, at the outset of the SEC investigation, Samper’s interests were aligned with—not adverse 

to—FLIR’s interests. Glade also agreed that Samper’s primary interest in testifying was to be truthful with the SEC, 

and Kaner agreed that all participants had an interest in 

cooperating. Glade did not recall thinking that the accuseds 

had any conflict of interest with Samper during the course 

of the SEC investigation, and Kaner also never concluded 

that any conflict existed.20 Wynne and Fitzhenry similarly 

testified that FLIR had no interest during the SEC investigation in projecting blame on Samper or others.

The accuseds also presented the testimony of an 

expert witness, Maletta, who was a former SEC lawyer 

with extensive experience in securities enforcement and 

governmental investigations, and who had authored part 

of a leading text that included discussion of ethical issues 

involved in SEC joint representations. Maletta testified 

generally about accepted and common practices during an 

SEC investigation, including a joint representation similar 

to that arranged here, which can be very advantageous in 

certain circumstances and was the presumptively preferred 

approach of many who practiced in the field. Specifically, 

Maletta testified that it was common practice for a single 

firm to individually represent the company and subpoenaed company officers and employees, provided that no 

20 In other parts of this opinion, we similarly observe that independent counsel for certain clients, with knowledge of the key facts, did not think that any 

conflict of interest existed as various events unfolded. Although another lawyer’s 

assessment of the existence of a conflict is of course not dispositive, we find such 

assessments here—made by several experienced lawyers—to be a useful component for our consideration of the Bar’s alleged rule violations.
718 In re Ellis / Rosenbaum

identifiable conflicts of interest exist and the company supports the individuals’ positions.21 Maletta explained that 

the interests of all such individuals are typically aligned 

because they share an interest in ensuring that no enforcement action is brought against anyone in the group. Maletta 

testified, similarly to the testimony of the accuseds, that all 

individuals involved typically have the same objectives, such 

as cooperating, testifying truthfully, and being forthcoming 

with the SEC. Maletta added that it is important in the representation to prevent projecting blame, which is counterproductive and not a useful strategy during the investigation stage, when there are no formal defendants, subjects, or targets. Maletta also confirmed the testimony of 

the accuseds, Glade, and Kaner that the principal benefit 

of joint representation is that each client obtains access to 

information that otherwise would not be available because 

the SEC has no obligation to share it. To be sure, Maletta 

agreed with the Bar that joint representation can present 

potential perils for clients, depending on the circumstances, 

and that joint representation of a company and its managers and employees can involve tensions at the outset—

particularly if intentional wrongdoing appears to have 

occurred. As noted, however, Maletta also generally testified 

about the advantages of joint representation and that the 

company’s and represented individuals’ interests frequently 

are aligned at the outset and during the investigation phase 

in the manner that he described.22

21 Maletta contrasted the type of investigation at issue here—in which, 

he explained, the interests of the company and individual clients tend to be 

aligned—with an investigation that by its nature would typically involve intentional wrongdoing by one or more persons, such as one involving insider trading, 

embezzlement, or obstruction of justice.

22 In addition to Maletta’s general testimony about accepted and common 

practices during an SEC investigation, the accuseds sought to introduce additional testimony from Maletta to the effect that the joint representation in this 

case was consistent with general practice and that FLIR’s and the individual 

clients’ interests had been aligned at the outset of the SEC investigation. The 

Bar objected, and the trial panel ruled that Maletta could testify only in the 

abstract as to SEC defense work generally, relying on In re Leonard, 308 Or 560, 

570, 784 P2d 95 (1989). The accuseds filed an offer of proof containing Maletta’s 

opinions on case-specific issues and contend on review that the panel’s ruling in 

that regard was incorrect. 

In light of our ultimate conclusion, after reviewing the evidence in the record 

that the trial panel admitted, that the Bar did not prove by clear and convincing
Cite as 356 Or 691 (2015) 719

The testimony summarized above comprises the 

essential evidence in the record concerning the propriety of 

the accuseds’ joint representation at the outset of the SEC 

investigation. The Bar presented no contrary testimony—

expert or otherwise—detracting from the evidence showing 

that joint representation was a common practice in SEC 

investigations of this kind, that the clients’ interests at the 

outset of such a representation tend to be aligned, and that 

the joint representation in the context of the SEC’s investigation here was appropriate under the circumstances.

Further, although the Bar raises several arguments 

purporting to show why the accuseds’ clients’ interests were 

adverse, those arguments effectively focus on the potential

for adversity to arise; they do not point to evidence in the 

record showing that the clients’ interests were adverse at 

the outset. For example, the Bar argues that the interests 

of FLIR, Daltry, Samper, Fitzhenry, and Eagleburger were 

adverse because they each had an interest in protecting 

themselves if the SEC eventually found misconduct to have 

occurred, including, to the extent necessary, identifying and 

testifying against each other. As summarized earlier, however, the evidence showed that no client had any interest at 

the outset of the SEC investigation in projecting blame on 

others. The Bar also did not prove that the SEC was likely 

to share its information in this case with other agencies for 

use in future criminal, disciplinary, or other proceedings: 

Although the Bar did show that the lawyers and witnesses 

knew that the SEC was permitted to share its information 

with other agencies, none of the involved lawyers had any 

reasonable expectation that the DOJ would involve itself in 

this particular investigation. The record further shows that, 

at that point in time, the DOJ typically did not have a significant level of involvement in ongoing SEC investigations, 

unless it chose to actively step in and stay the SEC proceeding. Finally, the Bar did not present evidence to support its 

argument that any particular client’s hypothetical efforts to 

take self-protective steps during the SEC investigation in 

turn might have been adverse to FLIR.

evidence the violations alleged in this cause, it is not necessary to address the 

accuseds’ contention on review that the panel erred in rejecting Maletta’s casespecific testimony. 
720 In re Ellis / Rosenbaum

We conclude that the Bar did not prove by clear 

and convincing evidence that the interests of FLIR and the 

accuseds’ individual clients Daltry, Samper, Fitzhenry, and 

Eagleburger were adverse at the outset of the SEC investigation and therefore did not prove the existence of any currentclient likely conflict of interest at that time under former DR 

5-105(A)(2) and former DR 5-105(E). Because we conclude 

that the Bar did not prove the existence of such a conflict, we 

need not decide whether the accuseds made sufficient disclosures so as to obtain consent to the joint representation 

under former DR 5-105(F) and former DR 10-101(B).23

IV. SECOND CAUSE—FORMER DR 5-105(E), 

CURRENT-CLIENT ACTUAL AND LIKELY

CONFLICTS DURING SEC INVESTIGATION, 

INCLUDING WELLS PHASE

A. Trial Panel Decision and Parties’ Contentions on Review

The second cause alleged that the accuseds had 

violated former DR 5-105(E) when they continued to represent FLIR on the one hand, and Daltry, Samper, Fitzhenry, 

and Eagleburger on the other, during the SEC investigation, once it became apparent that actual or likely conflicts 

had arisen. The Bar’s allegations under this cause generally refer to SEC witness interviews and also to the Wells 

phase. The trial panel rejected several Bar theories under 

this cause and specifically disagreed with the Bar that 

any actual conflict of interest arose before the Wells phase, 

which the Bar challenges on review. The panel did, however, 

determine that the Bar proved its allegations of likely conflicts of interest and insufficient disclosure under this cause 

in two respects.

First, the trial panel determined that FLIR’s statement in its Wells Submission that referred to the SEC “pursuing fraud claims against one or more individuals who may 

have been responsible” for the accounting errors, “to the 

extent that wrong-doing may have occurred,” established 

that FLIR’s interest in the SEC representation was adverse 

23 We generally note, however, that a lawyer taking on a similar joint representation should—in the exercise of caution—consider following applicable full 

disclosure rules as to the key participants.
Cite as 356 Or 691 (2015) 721

to those of Samper, Fitzhenry, and Eagleburger. In the panel’s

view, that statement told the SEC that FLIR had concluded 

that wrongdoing had occurred and that fraud claims perhaps were appropriate as to those individual clients—who 

all ultimately had received Wells Notices and who each had 

an interest in having FLIR refrain from acknowledging that 

any wrongdoing had occurred. Because the accuseds did not 

make full disclosure to or obtain consent from those clients 

as to continuing the joint representation, the panel concluded that the accuseds had violated former DR 5-105(E). 

The accuseds challenge that conclusion on review.

Second, the trial panel determined that Rosenbaum 

had violated former DR 5-105(E) when she called the SEC 

on October 3, 2002, to inquire about the lack of reference to 

the Swedish Drop Shipment in the SEC complaint against 

Stringer. According to the panel, that phone call—made in 

behalf of FLIR and Wynne—had been adverse to Samper’s 

interests. The panel analyzed the phone call under the Bar’s 

sixth cause, which more generally had alleged a currentclient conflict between Wynne and Samper (and others), and 

did not specifically mention the phone call. On review, the 

Bar contends that Rosenbaum’s October 3, 2002, phone call 

to the SEC fell within its general allegations under the second cause and that the panel’s conclusion was correct under 

that cause. The accuseds, for their part, challenge on review 

any determination that a rule violation occurred based on 

Rosenbaum’s phone call to the SEC.

We address the parties’ arguments under this cause 

in three parts: the SEC investigation leading up to the Wells 

phase; the Wells phase; and Rosenbaum’s October 3, 2002, 

phone call to the SEC.

B. No Current-Client Likely Conflicts During Pre-Wells Phase

In disagreeing with the trial panel’s conclusion that 

the Bar did not prove any likely conflict of interest during 

the SEC investigation up to the Wells phase, the Bar argues 

that (1) as witnesses provided information to the SEC, likely 

conflicts of interest under former DR 5-105(A)(2) arose 

between FLIR and the individual clients; (2) during that 

time, any self-protective step that any individual client took 
722 In re Ellis / Rosenbaum

was arguably adverse to other clients and to FLIR, which 

had an interest in setting a cooperative tone with the SEC; 

and (3) as the investigation progressed, FLIR’s interest in 

remediation grew stronger, which in turn was adverse to 

certain individual clients’ interests in remaining employed 

and in preserving favorable professional reputations. In 

response, the accuseds point to evidence in the record that 

they assert supports the panel’s conclusion that no likely 

conflicts arose in this time frame.

As with our earlier discussion about alleged conflicts at the outset of the SEC investigation, the Bar bears 

the burden of proving by clear and convincing evidence 

that the accuseds’ clients’ “objective personal, business or 

property interests [were] adverse” at the time in question. 

Former DR 5-105(A)(2). Also as part of our analysis, we consider former DR 5-105(B), which provided that, “[f]or purposes of determining a lawyer’s knowledge of the existence 

of a conflict of interest, all facts which the lawyer knew, or 

by the exercise of reasonable care should have known, will 

be attributed to the lawyer.” Again, on de novo review of the 

record, we conclude that the Bar did not prove the existence 

of any likely conflict of interest up to the Wells phase. We 

address the Bar’s arguments in turn, below.

Regarding witness testimony, the Bar in particular 

cites SEC interviews of Fitzhenry, Wynne, Muessle (FLIR’s 

then-current controller), and Chambers (the employee who 

testified about document destruction), and argues that those 

witnesses offered testimony that was adverse to Samper’s 

interests. We consider four aspects of that testimony and, 

as did the trial panel, conclude that the Bar did not show 

that the testimony demonstrated the existence of any likely 

conflict of interest.24

24 We focus on the four topic areas addressed in greatest detail at the trial 

panel hearing. In the facts section of its brief, the Bar generally states that several clients commented unfavorably on the credibility of others during their SEC 

interviews and lists isolated factual assertions from several witnesses’ interviews, including witnesses other than the four mentioned in the text above. In 

the argument section of its brief, however, the Bar states only very generally that 

the accuseds heard all those witnesses offer SEC testimony that was adverse to 

Samper, with no elaboration. The record in this case—which includes lengthy 

excerpts from several SEC transcripts—is almost 12,800 pages long. We decline 

to examine each isolated, separate factual statement set out in the Bar’s brief 
Cite as 356 Or 691 (2015) 723

As to Fitzhenry, the SEC asked him about the 1999 

management representation letter that he and Samper 

(and others) had signed, which had served to confirm the 

accuracy of certain 1999 FLIR quarterly results. The letter 

had confirmed that FLIR had recognized certain revenue 

properly, but that representation later was determined to 

be incorrect. Fitzhenry’s practice had been to sign such letters, based on representations from Samper or the former 

FLIR controller that the accounting representations made 

therein were true. Fitzhenry told the SEC in at least one 

interview that he did not recall having any particular conversation with Samper about the letter at issue—concerning the specific accounting-related content in the letter or

otherwise—other than Samper asking him to sign it. In 

response to questions about conversations with Samper 

about the letter, Fitzhenry stated in that interview that 

“the discussions that I would have had were more general 

in nature, * * * representations from either [Samper] or [the 

former controller], *** someone who was [also] a signatory 

of the letter, that the representations were true. * ** [B]ased 

on those representations, generally, I signed the letter as 

well.” For his part, Samper did not recall any particular conversation with Fitzhenry about the letter.25 In the Bar’s view, 

Fitzhenry’s SEC testimony showed an adversity of interest 

between Fitzhenry and Samper, based on Fitzhenry’s reliance on Samper’s general assurance that the contents of the 

letter had been accurate.

We disagree. First, the record shows that Samper 

reasonably would have expected Fitzhenry to rely on his 

assurances about accounting representations in the letter 

because Samper, as CFO, accepted responsibility for FLIR’s 

accounting. Nothing about Fitzhenry’s stated reliance on 

without further explication from the Bar, such as providing context or a purported link between each statement and the existence of a current-client likely 

conflict.

25 Fitzhenry later testified at his own trial panel matter, as well as to the 

trial panel below, that he recalled generally asking Samper if the contents of the 

letter were accurate, and Samper indicated that they were. Fitzhenry’s SEC testimony in the record that the Bar cites does not include that specific recollection 

on his part. And, in any event, Fitzhenry emphasized in both his Bar matter and 

in this proceeding that Samper had a different recollection, in that he did not 

recall any particular conversation about the contents of the letter.
724 In re Ellis / Rosenbaum

Samper established an adversity of interests between the 

two clients. Second, we do not read Fitzhenry’s testimony—

as does the Bar—to have stated that he recalled having had 

a specific conversation with Samper about the 1999 management representation letter in which Samper assured him as 

to its accuracy; instead, Fitzhenry only generally described 

the process that typically occurred when he was presented 

with such letters. And, even if we read Fitzhenry’s testimony 

to mean that he had asked Samper for general accounting 

assurances relating to that particular letter, when Samper 

did not recall a similar conversation, such a scenario does 

not prove by clear and convincing evidence that an adversity of interest existed. The record shows—through testimony from both the accuseds and their expert witness, 

Maletta—that differing recollections are common during 

the SEC interview phase. It also shows that Fitzhenry and 

Samper shared the objective of providing truthful testimony 

about their respective recollections. Finally, it shows that 

the accuseds sent a transcript of Fitzhenry’s SEC testimony 

to Glade and Kaner, and they did not think that Fitzhenry’s 

testimony demonstrated any conflict with Samper.26 In short, 

Fitzhenry’s SEC testimony did not establish by clear and 

convincing evidence that a likely conflict of interest existed 

between either FLIR or Fitzhenry and Samper during the 

SEC interview phase.

As to Wynne, the Bar first focuses on Wynne’s SEC 

testimony that FLIR’s new independent auditor had concluded that a high percentage of FLIR’s accounting entries 

had been erroneous and had observed that, in Wynne’s 

words, “it’s hard to imagine that you could get more transactions wrong than you got right.” The Bar reads that testimony as an inference by the auditor that some intentional 

wrongdoing had occurred, perhaps on Samper’s part, but 

Wynne denied in that same interview that the auditor ever 

had communicated to FLIR any conclusion about intentional wrongdoing. And, when viewed in context, Wynne’s 

testimony about the high percentage of errors related to 

26 Fitzhenry testified in October 2000, and the transcript was sent to Kaner 

in April 2001. Both Glade and Kaner generally testified that they did not think, 

through the entry of the SEC settlements in September 2002, that any conflict 

existed between any of the accuseds’ clients and Samper. 
Cite as 356 Or 691 (2015) 725

Stringer, not Samper; he specifically identified the auditor’s 

assessment as a contributing factor in FLIR’s decision to 

ask Stringer to resign.27 That testimony therefore does not 

provide a basis for concluding by clear and convincing evidence that a likely conflict of interest existed between FLIR 

and Samper during the SEC interview phase.

The Bar also emphasizes Wynne’s trial panel testimony about his ultimate conclusion—while the SEC investigation was ongoing—that Samper’s actions had amounted 

to securities fraud. Specifically, by spring 2001, Wynne had 

concluded that Samper had made entries and submitted 

financial statements that contained figures manipulated as 

a result of fraud; that is, that Samper had filed financial 

statements with the SEC based on entries that Samper by his 

own admission either knew to be inaccurate or did not know 

their accuracy. In Wynne’s view, that conduct amounted to 

securities fraud as legally defined, even though Wynne had 

not necessarily concluded that Samper himself had manipulated any figures. The record shows that Wynne offered 

that testimony carefully, so as not to assert any belief on his 

part that Samper had engaged in intentional wrongdoing.28

And, in any event, neither accused learned until several 

years later that Wynne had reached that general conclusion. 

Nothing about that testimony from Wynne demonstrated 

that FLIR had an interest adverse to Samper’s of which 

either accused reasonably would or should have been aware 

during the interview phase of the SEC investigation. See 

former DR 5-105(B) (for purposes of determining lawyer’s 

knowledge of existence of conflict of interest, all facts that 

lawyer knew or by exercise of reasonable care should have 

known are attributed to lawyer).

27 We further note that, the day after Wynne’s SEC interview, the accuseds 

had a conversation with Glade in which Ellis generally described Wynne’s testimony, including other testimony that the FLIR board’s concerns about Samper 

had involved competence, not any integrity or honesty problem. 

28 The Bar also points to Wynne’s trial panel testimony as to his belief that 

Samper had “manufactured” the $4.6 million figure reflected by the Swedish 

Drop Shipment. Wynne later elaborated on that comment, however, testifying to 

his understanding that Samper’s figures had originated with Stringer and that 

he had assessed Samper as having engaged in securities fraud based on Samper’s 

entry of Stringer’s figures into FLIR’s books, made while in his capacity as CFO, 

when he might not have known with certainty whether an underlying transaction had occurred or whether sufficient documentation supported such an entry.
726 In re Ellis / Rosenbaum

As to Muessle, the Bar states that he identified in 

an evaluation for FLIR and FLIR’s new independent auditor 

questionable transactions that implicated Samper in wrongdoing, which FLIR—through the accuseds—sent on to the 

SEC. Muessle testified at the trial panel hearing about 

his evaluation, which had explained to FLIR’s auditor why 

certain transactions had been restated due to lack of supporting documentation and also discussed other problematic transaction reviews. None of Muessle’s evaluation documentation in the record mentioned Samper in a negative 

light, and none of Muessle’s panel testimony suggests that 

he ever thought that Samper had engaged in intentional 

wrongdoing. Notably, also during the SEC interview phase, 

Rosenbaum provided similar documentation on Muessle’s 

transaction reviews to Glade and Kaner; as noted above, 

Glade and Kaner never concluded during the course of the 

SEC investigation—based on information that they received 

from the accuseds on an ongoing basis—that Samper’s 

interests were adverse to FLIR’s. The Muessle testimony 

and evaluation documentation did not establish by clear and 

convincing evidence that any adverse interest arose between 

FLIR and Samper during the SEC interview phase.

As to Chambers, the Bar focuses on her testimony 

about document destruction and other questionable representations on Samper’s part about shipped inventory, 

which the Bar views as having implicated Samper in wrongdoing. The record shows, however, that Chambers was a 

lower-level employee without sufficient understanding of all 

the detail surrounding FLIR’s shipping arrangements and 

accounting processes, and so her testimony did not demonstrate adversity with Samper in the manner that the Bar 

contends. Indeed, Kaner testified that she and Glade had 

discussed the possibility that Chambers’s testimony demonstrated a conflict, but they agreed that a conflict had not 

arisen and that the interests of FLIR and Samper remained 

aligned. In that regard, we agree with the accuseds that 

Chambers’s testimony illustrated a benefit of the joint representation: Because Rosenbaum represented both Chambers 

and Samper for purposes of the SEC interview phase, she 

was present for Chambers’s interview and then was able 

to confer with Glade and Samper, and adequately prepare 

Samper, so as to provide the SEC with explanations about
Cite as 356 Or 691 (2015) 727

issues arising from Chambers’s testimony—particularly 

concerning circumstances about which Chambers had been 

unaware. We disagree with the Bar that Chambers’s testimony showed an adverse interest between FLIR and Samper 

during the SEC interview phase.

The Bar next contends that self-protective actions 

taken by individual clients during the SEC interview phase 

showed that those clients had interests adverse to FLIR’s. 

The Bar cites two examples, both of which appear from the 

record to have been joint tactical recommendations made 

to Samper by Glade, Kaner, and the accuseds: (1) Samper 

participating in the SEC interviews instead of asserting 

his Fifth Amendment privilege against self-incrimination; 

and (2) Samper testifying early in the proceedings, to clarify some SEC factual misunderstandings and to further 

the joint strategy of showing that only innocent errors, not 

intentional wrongdoing, had occurred.

In the Bar’s view, the lawyers’ Fifth Amendment 

waiver advice showed that Samper had individual considerations that were adverse to FLIR’s. The record establishes, however, that the four lawyers agreed that it was 

in Samper’s best interest to cooperate with SEC interview 

requests and that none of the lawyers reasonably could have 

anticipated, during the SEC interview phase, that a DOJ 

investigation was forthcoming. As to the lawyers’ early testimony advice, the Bar asserts that that decision harmed 

Samper in the ensuing DOJ investigation because the SEC 

viewed him critically before all documentation was in order, 

later giving the impression that he had not been honest. The 

record does show that, in the end, the SEC determined that 

Samper had been disingenuous at best and had been trying 

to either mislead the SEC or distract from the full truth of 

what had occurred. During the SEC interview phase, however, Glade and Kaner continued to think that cooperation 

and forthcoming testimony was in Samper’s best interests, 

and both had concurred in the decision to have Samper testify early.29 We disagree that those two tactical decisions

29 The Bar cites a letter that Kaner wrote to the accuseds several years later, 

noting that Samper’s early testimony—intended to comply with FLIR’s efforts to 

cooperate with the SEC—had put him on the spot before the documentation was 

complete and gave the impression that he had not acted honestly, which may have 
728 In re Ellis / Rosenbaum

showed an adversity of interests between Samper and FLIR, 

and the Bar points to no other evidence of individual clients’ self-protective steps that might have showed such an 

adversity.30

The Bar also argues that FLIR’s interest in adopting a remediation strategy grew as the pre-Wells investigation phase progressed, which was adverse to the individual 

clients’ interests in remaining employed and preserving a 

sound professional reputation.31 The Bar further asserts 

that FLIR positioned itself during the investigation to seek 

favorable treatment at the expense of individual clients 

Daltry, Samper, and Eagleburger. The record shows, however, that FLIR’s general strategy during the SEC interview phase remained the same all along—that is, to cooperate; to not admit that either FLIR or any of the accuseds’ 

individual clients had engaged in fraud; and, eventually, to 

focus the SEC on FLIR’s remediation improvements since 

the 1998 and 1999 accounting errors. Although, again, the 

potential for adversity existed, the record does not show that 

the clients’ interests were adverse during the SEC interview 

phase and therefore does not establish that any currentclient likely conflict of interest existed.

contributed to his criminal indictment. The question under former DR 5-105(A)(2),

however, is whether the accused lawyer reasonably knew that the clients’ interests were adverse at the time in question. Kaner’s hindsight observation, following several years’ worth of additional developments including a criminal prosecution, does not amount to clear and convincing evidence that the accuseds knew 

that any actual adversity existed during the SEC interview phase. At that time, 

the possibility continued that FLIR’s and Samper’s interests might diverge, but, 

as explained above, none of Samper’s four lawyers ever concluded during that 

period in time that any adversity in fact had arisen, and nothing in the record 

counters that assessment. 

30 The Bar cites Am. Bar Ass’n, Section of Bus. Law, The Securities 

Enforcement Manual 477 (1997), for the proposition that company officers, directors, and employees involved in an SEC investigation have an opportunity to 

limit individual exposure if they cooperate with the SEC. However, the Bar 

cites to no evidence in the record—other than that discussed above—showing 

that any of the accuseds’ clients in this case took any self-protective step that 

established by clear and convincing evidence that their interests were adverse to 

FLIR’s.

31 The Bar again cites The Securities Enforcement Manual at 477: “Corporations may avoid or lessen liability by taking prompt action to replace wrongdoers and showing that the wrong was a matter of individual not corporate fault. 

These possibilities create considerable room for conflicts to develop.” 
Cite as 356 Or 691 (2015) 729

C. No Current-Client Actual or Likely Conflicts of Interest 

During Wells Phase

1. General Discussion

The trial panel concluded that a single statement in 

FLIR’s Wells Submission—that FLIR understood that the 

SEC was pursuing fraud claims against one or more people 

responsible for its accounting issues—established a currentclient likely conflict of interest between FLIR and Samper, 

Fitzhenry, and Eagleburger, all of whom received Wells 

Notices, and that the accuseds did not disclose that conflict. 

On review, the accuseds challenge that conclusion, arguing 

that FLIR’s interests were not adverse to those three individual clients during the Wells phase. The Bar, for its part, 

contends that various parts of FLIR’s Wells Submission 

showed that current-client actual conflicts of interest arose 

during the Wells phase between FLIR and the identified clients, and those actual conflicts could not be waived, even 

following full disclosure, under former DR 5-105(F).32

The following facts are important to fully address 

the parties’ arguments. The SEC issued Wells Notices to 

four of the accuseds’ clients—FLIR, Samper, Fitzhenry, 

and Eagleburger—and also to Stringer and Martin (and 

others). Upon receipt of Samper’s Wells Notice, Glade and 

Kaner transitioned to lead counsel during the Wells phase 

and ensuing negotiations, and the accuseds transitioned 

to a supporting role. Upon receipt of Fitzhenry’s and, later, 

Eagleburger’s Wells Notices,33 Ellis conferred with each of 

those clients, told them that they immediately needed to 

retain independent counsel, and then offered to serve as 

supporting co-counsel as needed—ultimately providing 

some support for both clients based on requests from their 

individual lawyers. As for FLIR, the accuseds (mostly Ellis), 

Wynne, and Fitzhenry worked on FLIR’s Wells Submission, 

32 We note that the trial panel specifically found that the identified statement 

in FLIR’s Wells Submission amounted to a conflict of interest between FLIR and 

several of the accuseds’ individual clients. The Bar clarifies—and we agree—that 

the question is not whether that statement itself constituted a conflict, but, rather, 

whether that statement provided persuasive evidence that a conflict existed.

33 Eagleburger’s Wells Notice was not received until after FLIR had filed its 

Wells Submission. 
730 In re Ellis / Rosenbaum

which FLIR filed with the SEC without first sending to the 

accuseds’ other clients for review.

FLIR’s Wells Submission focused on FLIR’s remediation efforts and stated that it had “removed” those “senior 

managers who were responsible for the accounting errors 

and the management problems, including the President and 

CEO, Stringer.” It next referred by position (not by name) 

to other former management personnel no longer with the 

company, including Daltry and Samper (both identified as 

having resigned earlier), and Eagleburger and Martin (both 

identified as having been terminated). It continued that, 

“[h]aving satisfied itself that it had identified and removed 

all those in senior management who were responsible for 

the Company’s troubles, the Board immediately turned its 

attention to assisting remaining management in rescuing 

and then improving the Company.” FLIR’s Wells Submission 

later stated, under “Remediation,” that “[t]he individuals 

who were responsible for the accounting errors have been 

terminated, and the Company is under new executive and 

financial management.” In its final, “Offer of Settlement” 

section, FLIR’s Wells Submission stated that, “to the extent 

wrong-doing may have occurred, we understand that the 

SEC is pursuing fraud claims against one or more individuals who may have been responsible,” inferentially intended 

to refer to Stringer and Martin. Throughout, FLIR’s Wells 

Submission described the 1998 and 1999 accounting issues 

as “errors” or “problems,” not “fraud,” which carried a critical distinction in the securities context.

The record shows that, in drafting and filing FLIR’s 

Wells Submission, the accuseds and FLIR did not seek to cast 

a negative light on either Samper or Eagleburger, and FLIR’s 

Wells Submission objectively did not expressly take any particular position or make any characterization about either of 

them, other than noting the former CFO’s (Samper’s) cooperation with the SEC investigation. It included one express 

favorable reference to Fitzhenry, in an effort to confirm his 

positive participation as part of the new management team. 

At the time that FLIR prepared its Wells submission, the 

accuseds had concluded that only Stringer and Martin had 

acted fraudulently. Also at that time, Eagleburger had not 
Cite as 356 Or 691 (2015) 731

yet received a Wells Notice. And, although Glade initially 

thought that FLIR’s Wells Submission reflected poorly on 

Samper, he and Kaner continued to communicate regularly 

with the accuseds as Samper’s co-counsel and also continued 

to think that FLIR’s and Samper’s interests were aligned 

for purposes of the SEC proceeding. During the Wells phase, 

the accuseds and the other individual lawyers reasonably—

but, as it turns out, incorrectly—anticipated that no criminal investigation would occur.

2. No Current-Client Actual Conflict

The Bar first contends that the statement in FLIR’s 

Wells Submission about the SEC pursuing fraud claims 

against those responsible for the accounting issues—

particularly when considered with other components of 

FLIR’s Wells Submission discussed above—demonstrated 

an actual, nonwaivable conflict of interest under former DR 

5-105(A)(1) between FLIR and the accuseds’ individual clients 

Daltry, Samper, and Eagleburger. See former DR 5-105(F) 

(only current-client likely conflicts can be waived by client 

consent after full disclosure). The Bar thinks it significant 

that, when the SEC sent the individual Wells Notices, the 

accuseds learned who the SEC considered to be wrongdoers, 

giving weight to the argument that FLIR itself should not 

be punished. At that point, the Bar continues, the accuseds’ 

duty to FLIR to admit misconduct by Daltry, Samper, and 

also Eagleburger (who received a Wells Notice later) became 

irreconcilable with their duty to refrain from accusing those 

three individual clients of wrongdoing. Nonetheless, the 

accuseds then prepared and filed FLIR’s Wells Submission, 

which—in the Bar’s view—inferentially referred to Daltry, 

Samper, and Eagleburger as wrongdoers.34

Former DR 5-105(A)(1) defines an actual conflict for 

purposes of former DR 5-105(E) as a scenario in which a 

34 The Bar also contends on review that an actual conflict of interest existed 

when the accuseds negotiated FLIR’s SEC settlement, which resulted in a judgment that included—without admitting or denying—a finding of fraud by prior 

management. However, the Bar’s allegations in the second cause end with the 

filing of FLIR’s Wells Submission and do not mention FLIR’s settlement negotiations, and no other allegation refers to FLIR’s settlement negotiations. We therefore do not discuss any Bar argument relating to those negotiations or the final 

SEC judgment against FLIR.
732 In re Ellis / Rosenbaum

lawyer “has a duty to contend for something on behalf of 

one client that the lawyer has a duty to oppose on behalf 

of another client.” Similarly to our earlier discussion about 

likely conflicts of interest, such conflicting obligations often 

are readily apparent from the nature of the representations 

and client interests involved. See In re Bristow, 301 Or 194, 

204, 721 P2d 437 (1986) (actual conflict of interest when 

lawyer represented one client in action to enforce franchise 

agreement while simultaneously representing other client 

in action seeking to hold same agreement invalid; citing 

cases for same proposition). The court also has explained, 

however, that the clients’ underlying objective interests at 

the time in question determine the nature of any obligation 

on the lawyer’s part to contend for or oppose a particular 

legal position on each client’s behalf. See Cobb, 345 Or at 133 

(lawyer represented both investor partnerships and entity 

related to company in which they had invested in complex 

bankruptcy proceedings; at time in question, investor partnerships not necessarily entity’s creditors, and all parties 

shared goal of dismissal; no actual conflict); Cohen, 316 Or 

at 662 (whether actual conflict exists depends on clients’ 

objective interests).

Here, the record does not establish the existence of 

conflicting duties relating to the accuseds’ representation 

and protection of their respective clients’ objective interests during the Wells phase. The fact that Wells Notices 

had issued and the clients then considered and developed 

responses to them did not, standing alone, mean that the 

accuseds had a duty to contend for a particular position on 

FLIR’s behalf that they had a duty to oppose on behalf of 

Daltry, Samper, or Eagleburger. Indeed, the record shows 

that FLIR would have been responsible for fraud committed 

by its officers, managers, and employees, in the context of 

the SEC’s investigation.35

As to FLIR’s particular Wells strategy, the record 

shows that FLIR had an objective interest in convincing 

the SEC of the sincerity and significance of its remediation 

35 As noted earlier, see 356 Or at 703 n 9, the findings of fraud in the SEC’s 

ultimate judgment against FLIR—based on various individual personnel 

actions—resulted in FLIR losing its safe harbor protections under federal securities law.
Cite as 356 Or 691 (2015) 733

efforts, including its transition to new management. Nothing 

about that interest obligated the accuseds to assert on FLIR’s 

behalf a position that they were obligated to oppose in representing the interests of Daltry, Samper, or Eagleburger—

such as, as the Bar contends, asserting that one or more of 

those clients had engaged in intentional wrongdoing. And, 

although FLIR’s new management did not include Daltry, 

Samper, or Eagleburger, the accuseds were not obligated on 

behalf of those clients to oppose FLIR’s focus on its remediation strategy. Indeed, expert testimony in the record established that a remediation defense, not unusual in an SEC 

proceeding of this kind, focuses on the future as opposed 

to any action that occurred in the past. And finally, none of 

the lawyers involved—including the independent lawyers—

thought that a conflict existed; as to Samper specifically, 

Glade continued to think that no conflict existed even after 

he had reviewed and considered FLIR’s Wells Submission. 

The trial panel correctly determined that no actual conflict 

of interest existed between FLIR and the accuseds’ individual clients Daltry, Samper, and Eagleburger during the 

Wells phase.

3. No Current-Client Likely Conflict

Next, the accuseds contend that the trial panel erred 

in concluding that the statement in FLIR’s Wells Submission 

about pursuit of fraud claims against responsible individuals established an adversity of interests, and therefore a 

likely conflict, between FLIR and individual clients Samper, 

Fitzhenry, and Eagleburger. The accuseds specifically argue 

that that statement did not suggest or imply that those individual clients had committed fraud or encouraged the SEC 

to act against any client; instead, FLIR’s Wells Submission 

identified only Stringer and, inferentially, Martin, as individuals who had been “removed” from employment and 

(again, inferentially) were presently the subject of SEC fraud 

claims. Otherwise, FLIR framed its response in light of 

remediation, which accused no client of earlier wrongdoing. 

The accuseds also emphasize that FLIR’s Wells Submission 

labeled FLIR’s 1998 and 1999 accounting issues as “errors” 

and “problems”—words that objectively and understandably 

did not admit, indicate, or imply fraud on the part of anyone 
734 In re Ellis / Rosenbaum

at FLIR. The Bar, as noted (and rejected) above, responds 

by contending that FLIR’s Wells Submission showed an 

actual conflict of interest between FLIR on the one hand, 

and Samper and Eagleburger on the other. Here, we consider the Bar’s underlying arguments about an actual conflict of interest to determine whether the Bar proved a likely 

conflict of interest as to the three clients that the panel identified (Samper, Fitzhenry, and Eagleburger).

As already explained, a likely conflict of interest 

existed if the “objective personal, business or property interests” of FLIR and the accuseds’ individual clients “[we]re

adverse,” former DR 5-105(A)(2)—that is, if their objective 

interests were contrary or in opposition to one another at 

the time in question. This court has explained that the 

representation of multiple clients embroiled in the same 

action often gives rise to likely (and sometimes actual) conflicts, due to the clients’ adversity of interests. In the criminal context, for example, such an arrangement typically 

results in an actual or likely conflict, due to the potential 

interest of one client in obtaining a favorable outcome in 

exchange for testifying or offering evidence against another 

client. Jeffery, 321 Or at 370-71; see also id. at 372-73 (statements to police by one client that implicated another client amounted to actual or likely conflict); O’Neal, 297 

Or at 260-66 (likely conflict when representing criminal

codefendants, even where lawyer limited representation to 

negotiating pleas). Adverse interests of course can arise in 

other contexts, as well. See In re Barber, 322 Or 194, 200, 

904 P2d 620 (1995) (under earlier version of former DR 

5-105, likely conflict when lawyer represented two parties 

injured in same motor vehicle accident, where insurance 

proceeds insufficient to cover injuries of both). In determining whether the Bar proved that a likely conflict existed at 

the time in question, we must identify, based on evidence 

in the record, the objective interests involved. See Cohen, 

316 Or at 661-62 (in determining that husband and wife 

had adverse interests in husband’s criminal mistreatment 

proceeding and wife’s pending juvenile proceeding, court 

identified objective personal interests of each at the time in 

question, notwithstanding earlier client declarations that 

they shared a common goal).
Cite as 356 Or 691 (2015) 735

As noted earlier, the record shows that FLIR’s objective interest during the Wells phase was to persuade the SEC 

that, from a forward-looking perspective based on multiple 

changes that had been made, FLIR should not be subject 

to any SEC enforcement action. FLIR’s actions in crafting 

its Wells Submission advanced that interest; specifically, it 

sought to frame the accounting events in a neutral manner 

and then to focus the SEC on its remediation efforts—such 

as new management, a larger, professional accounting staff, 

a new independent auditor, and clean audits following the 

years in question. By contrast, FLIR did not have any objective interest in focusing on past liability or engaging the 

SEC in any factual argument about events underlying the 

1998 and 1999 accounting issues; the record shows that it 

would have been counterproductive during the Wells phase 

for FLIR to argue about those events. Additionally, as noted 

earlier, FLIR had no interest in seeing any officer, manager, 

or employee accused of fraud, for which FLIR ultimately 

would have been responsible.

Like FLIR, clients Samper, Fitzhenry, and 

Eagleburger each shared an objective interest during the 

Wells phase in mitigating against a negative individual outcome from the SEC proceedings, including an interest in 

avoiding ancillary and collateral consequences that might 

apply to them as individuals, but not to the company. For 

example, in addition to a separate SEC enforcement action, 

Samper was potentially subject to disgorgement penalties, 

and Fitzhenry was potentially subject to a sanction that 

would have prevented him from practicing before the SEC.36

Also, as part of their individual defenses, the clients—like 

FLIR—had an interest in convincing the SEC that they had 

not engaged in fraud. As the Bar argues (and the accuseds 

do not disagree), those three clients also shared a general 

interest in not having FLIR accuse them of wrongdoing.

We conclude that the Bar did not prove by clear and 

convincing evidence that FLIR’s interests were adverse to 

those of Samper, Fitzhenry, or Eagleburger during the Wells 

phase. As explained, all the clients shared an interest in 

36 In that regard, we note that concerns that might have arisen in the civil 

action context—such as joint and several liability, cross-claims, or competing 

interests in insurance proceeds—did not apply in the SEC context. 
736 In re Ellis / Rosenbaum

mitigating against a negative outcome in the SEC investigation. The fact that different consequences could flow from negative outcomes—for example, to FLIR as a company, to Samper 

as a former officer, or to Fitzhenry as General Counsel—does 

not mean that the respective clients’ interests were necessarily adverse to each other. And, as discussed above, the record 

shows that none of the lawyers or individuals involved anticipated, during the Wells phase, that any DOJ investigation—

which certainly carried at least the potential for future 

adverse conflicts of interest—might be forthcoming. See former DR 5-105(B) (when determining lawyer’s knowledge of 

existence of conflict, all facts that lawyer knew or reasonably 

should have known are attributed to lawyer).37

As to FLIR’s prospective remediation defense specifically, expert testimony established that it was a recognized 

strategy in SEC investigations of this kind, even where joint 

representation had occurred. Although isolated statements 

in FLIR’s Wells Submission arguably could be read to inferentially cast a negative light on Samper or Eagleburger, 

other evidence in the record provides contrary context to 

those statements, regarding FLIR’s remediation defense and 

its objective interest in persuading the SEC to look forward, 

not backward. For example, expert testimony showed that a 

remediation defense typically involves differing arguments 

for the company than for individuals, but that does not necessarily mean that their interests are adverse. Indeed, joint 

representation in SEC proceedings often continues in the 

same fashion that it did here—with the company’s lawyers 

continuing to represent individual clients in a supporting 

role during the Wells phase—because the clients’ various 

defenses can be synthesized with each other, even if they are 

not identical. That is essentially what transpired here. FLIR 

had an objective interest in focusing the SEC on remediation, and FLIR’s Wells Submission therefore did not engage 

the SEC about the earlier accounting issues; instead, it 

focused on prospective remediation. By contrast, the individual clients each defended their own interests, some by

37 Additionally, unlike the Bar and the trial panel, we read the statement in 

FLIR’s Wells Submission about the SEC “pursuing fraud claims against one or 

more individuals who may have been responsible” as a factual observation about 

actions that the SEC had taken, not as a recommendation on FLIR’s part that the 

SEC should pursue a fraud claim against any particular individual.
Cite as 356 Or 691 (2015) 737

focusing on earlier events as needed.38 The record does not 

clearly and convincingly support the Bar’s theory that FLIR 

and the individual clients had objective interests during the 

Wells phase that were adverse to each other.39

D. Rosenbaum’s Phone Call to SEC Concerning Swedish 

Drop Shipment Not Within Scope of Second Cause

The trial panel concluded that Rosenbaum’s October 3,

2002, phone call to the SEC to inquire about the Swedish 

Drop Shipment entry demonstrated the existence of either 

an actual or likely conflict under former DR 5-105(E) 

between FLIR and Wynne on the one hand, and Samper 

on the other, that Rosenbaum did not disclose. As noted, 

the panel found that to be a violation under the sixth cause, 

which had alleged current-client actual or likely conflicts 

between Wynne and Samper.40 The Bar asserts on review 

that Rosenbaum’s phone call to the SEC fell under its second 

cause, which alleged similar conflicts between FLIR and the 

accuseds’ individual clients, including Samper, during the 

SEC investigation through the Wells phase. The accuseds 

disagree that Rosenbaum’s phone call fell within the scope 

of any allegation and contend that the panel erred in determining that any violation had occurred. As explained below, 

we agree with the accuseds.

38 Fitzhenry’s Wells Submissions engaged the SEC about past events relating to his signature on the 1999 management representation letter. Samper, 

for his part, opted not to file a Wells Submission at all, and Eagleburger’s 

Wells Submission does not appear to be in the record. Nothing in FLIR’s Wells 

Submission was inconsistent with the individual clients’ objective interests in 

convincing the SEC that they each had not engaged in any intentional wrongdoing or in mitigating against negative outcomes. 

39 The Bar also argues that FLIR’s Wells Submission contained statements 

that showed adverse interests between FLIR and Daltry. Daltry did not receive a 

Wells Notice, however, and so the accuseds’ representation of him effectively had 

ended when he completed his SEC testimony. The Bar did not prove any currentclient conflict of interest between FLIR and Daltry during the Wells phase. 

40 The Bar’s sixth cause alleged that Wynne’s SEC testimony had implicated 

Daltry and Samper as responsible for FLIR’s 1998 and 1999 financial misstatements and accounting errors; however, Rosenbaum’s phone call did not pertain 

to Wynne’s testimony. The trial panel acknowledged that the Bar did not specifically allege wrongdoing on Rosenbaum’s part regarding the information conveyed to the SEC in her phone call but invoked ORCP 23 B in determining that a 

violation had occurred. See ORCP 23 B (when issues not raised by pleadings are 

tried by parties’ express or implied consent, those issues shall be treated as if 

they had been raised in the pleadings).
738 In re Ellis / Rosenbaum

An accused lawyer must be put on notice “of the 

conduct constituting the violation,” as well as the rule violation at issue. In re Magar, 296 Or 799, 806 n 3, 681 P2d 93 

(1984). In that regard, BR 4.1(c) provides, in part:

“A formal complaint shall *** set forth succinctly the 

acts or omissions of the accused, including the specific 

statutes or disciplinary rules violated, so as to enable the 

accused to know the nature of the charge or charges against 

the accused. “

That rule “does not obligate the Bar to plead any fact regarding a charge * ** beyond those that the * ** [former] disciplinary rules identify.” In re Kluge, 332 Or 251, 262, 27 

P3d 102 (2001). The Bar must, however, sufficiently allege 

facts in connection with the charged allegation. Compare 

In re Albrecht, 333 Or 520, 544, 544 n 20, 42 P3d 887 (2002) 

(rejecting argument that complaint insufficiently alleged 

conversion for lawyer’s own use because one aspect of allegation described and alleged that type of conversion), with

In re Spencer, 355 Or 679, 689, 30 P3d 538 (2014) (court did 

not address theory of “personal interest” not alleged as conflict of interest violation), and Magar, 296 Or at 803, 806 n 3 

(Disciplinary Board erred in basing rule violation on certain aspects of problematic client representation not alleged 

or described in complaint), and In re Lasswell, 296 Or 121, 

128, 673 P2d 855 (1983) (Disciplinary Board erred in basing 

rule violation concerning prosecutor’s extrajudicial statements on particular events not charged in complaint; only 

factual event described in complaint provided basis to analyze alleged rule violation). See also State ex rel Currin v. 

Comm’n on Judicial Fitness, 311 Or 530, 533, 815 P2d 212 

(1991) (adequate notice is necessary component of due process); In re Chambers, 292 Or 670, 676, 642 P2d 286 (1982) 

(trial panel erred in reaching guilt determination as to misrepresentation; although proof supported panel’s determination, complaint contained no allegation putting lawyer on 

notice that being charged with misrepresentation).

As discussed earlier, in this case, the Bar’s second 

cause alleged conflicts of interest among the accuseds’ current clients during the SEC investigation. That cause contained one allegation that—in isolation—arguably could be 
Cite as 356 Or 691 (2015) 739

read to encompass Rosenbaum’s October 3, 2002, phone call 

to the SEC:

“Represented by [Rosenbaum] and Ellis, FLIR agreed 

to cooperate fully with the SEC in its investigation and 

revealed to the SEC information that implicated ** * 

Samper *** as responsible for the misstatement of FLIR’s 

1998 and 1999 financial status and for FLIR’s accounting, 

record-keeping, and financial reporting practices in 1998 

and 1999.”

(Emphasis added.) When read in its entirety, however, the 

unmistakable purpose of the second cause was to allege misconduct—including FLIR’s alleged revealing to the SEC of 

information unfavorable to Samper and others—occurring

within a particular time frame that began with the special committee’s determinations by summer 2000, continued through the SEC investigation and interviews in 2000 

and 2001, and ended in March 2002 with FLIR’s filing of 

its Wells Submission. Rosenbaum’s phone call to the SEC 

occurred on October 3, 2002, after the SEC’s judgments 

against FLIR and Samper had been entered, and well after 

the time frame referred to in the Bar’s second cause. That 

cause therefore did not sufficiently allege facts to permit 

Rosenbaum “to know the nature of the charge * * * against 

[her],” BR 4.1(c), respecting any implication flowing from 

her phone call to the SEC. The trial panel erred in concluding otherwise.41

V. TENTH CAUSE (ELLIS ONLY)—FORMER

DR 5-105(C), FORMER-CLIENT LIKELY CONFLICT 

DURING FITZHENRY BAR MATTER

A. Trial Panel Decision and Parties’ Contentions on Review

The tenth cause against Ellis alleged that Ellis’s representation of Fitzhenry in his Bar matter after the Daltry 

41 As noted earlier, 356 Or at 737 n 40, the trial panel invoked ORCP 23 B 

in determining that Rosenbaum’s October 3, 2002, phone call to the SEC showed 

that a likely conflict of interest existed between FLIR and Wynne, and Samper. 

This court never has concluded that ORCP 23 B applies in Bar proceedings, and 

nothing in the Bar Rules of Procedure suggests that application of ORCP 23 B is 

permitted or appropriate. By contrast, as explained above, the Bar Rules require 

that the complaint notify the accused lawyer of the alleged misconduct at issue. 
740 In re Ellis / Rosenbaum

and Samper SEC representations had ended—including 

continuing to assert on Fitzhenry’s behalf that he had relied 

on Daltry’s and Samper’s assurances when signing the 1999 

management representation letter that also had been at 

issue in the SEC proceeding—amounted to a former-client 

conflict of interest under former DR 5-105(C) that Ellis had 

been obligated to disclose to both Daltry and Samper, so as 

to obtain their consent to his representation of Fitzhenry. 

The trial panel concluded that the Bar did not prove that 

Ellis’s representation of Fitzhenry was or was likely to be 

adverse to Daltry’s or Samper’s interests in the DOJ investigation, and, therefore, no conflict existed. The Bar challenges that conclusion on review. Ellis first responds by 

emphasizing that the Bar’s allegation focuses on Fitzhenry’s 

trial panel hearing and review in this court, which occurred 

after the Rules of Professional Conduct replaced the former Code of Professional Responsibility. Fitzhenry, 343 Or 

at 88 n 1. Because the Bar charged only violations under 

the former Code of Professional Responsibility, Ellis argues 

that we should dismiss the allegations under this cause. 

Alternatively, Ellis argues that the Bar failed to prove that 

any former-client likely conflict of interest existed under former DR 5-105(C) because it failed to prove that the SEC and 

Bar matters were significantly related or that the interests 

of the various clients were adverse.42

B. Adoption of Oregon Rules of Professional Conduct in 

2005 Narrowed Scope of Misconduct Alleged Under 

Tenth Cause

We begin with Ellis’s argument about the scope 

of the Bar’s allegations under the former rules. We agree 

that former DR 5-105(C) did not apply to misconduct alleged 

to have occurred on or after January 1, 2005, the effective 

date for the Oregon Rules of Professional Conduct. See In re 

42 The Bar’s complaint had alleged an “actual or likely” former-client conflict 

under this cause. The trial panel determined that the Bar did not prove that 

Ellis’s representation of Fitzhenry in the Bar matter “was or was likely to be 

adverse to the objective interests of Samper and Daltry” in the DOJ investigation. On review, the Bar asserts the existence of a “conflict.” Because the Bar’s 

argument is limited to the question of adversity and does not mention any obligation on Ellis’s part to contend for competing client positions, we analyze only 

whether a likely conflict of interest existed.
Cite as 356 Or 691 (2015) 741

Hartfield, 349 Or 108, 115 n 4, 239 P3d 992 (2010) (although 

accused lawyer began representing client in 2003, before 

effective date of Rules of Professional Conduct, misconduct 

at issue occurred after that date, so new rules applied); 

Hostetter, 348 Or at 576 n 1 (alleged misconduct occurred 

both before and after January 1, 2005; former disciplinary 

rules applied to conduct alleged before the date, and new 

rules applied to conduct alleged on or after that date). We 

disagree, however, that the entirety of the tenth cause 

alleged misconduct occurring only after the effective date of 

the new rules.

The ninth cause against Ellis—which is not at issue 

here—alleged current-client conflicts between Fitzhenry, on 

the one hand, and Daltry and Samper on the other, arising 

from Ellis’s representation of Fitzhenry in his Bar matter 

from July 2002 up to the issuance of this court’s decision in 

Fitzhenry, 343 Or 86, in 2007. That cause included an allegation that, as part of Fitzhenry’s defense, Ellis knowingly 

made representations on Fitzhenry’s behalf that conflicted 

with the interests of former clients Daltry and Samper. 

The tenth cause realleged and incorporated by reference 

those same facts and then further alleged that (1) after late 

September 2002, the accuseds’ representation of Daltry and 

Samper ended, but Ellis continued to represent Fitzhenry in 

the Bar matter; (2) from the formal prehearing phase through 

the appellate review proceedings—which all occurred after 

January 1, 2005—Ellis knowingly made representations on 

Fitzhenry’s behalf that conflicted his former clients’ interests; and (3) throughout Ellis’s continuing representation of 

Fitzhenry once Daltry and Samper became former clients, a 

former-client conflict existed. Collectively, those allegations 

in the tenth cause asserted continuing misconduct throughout the entirety of the Fitzhenry Bar representation once 

Daltry and Samper became former clients; the allegations 

were not limited to Ellis’s work relating to the trial panel 

hearing and appellate review that occurred after January 1, 

2005. We therefore must determine whether the Bar proved 

by clear and convincing evidence that Ellis’s representation of Fitzhenry in the Bar matter before that date posed 

a likely conflict of interest with former clients Daltry and 

Samper under former DR 5-105(C).
742 In re Ellis / Rosenbaum

C. No Former-Client Likely Conflict of Interest During 

Fitzhenry Bar Matter

The central facts predating January 1, 2005, are as 

follows. In late November 2002, at Fitzhenry’s request, Ellis 

wrote to the Bar, sending Fitzhenry’s SEC settlement order 

and reiterating Fitzhenry’s position that he had relied on 

FLIR’s CEO (Stringer) and CFO (Samper) in signing the 

1999 management representation letter. Ellis wrote the Bar 

again in December 2002, responding to a Bar inquiry and 

sending additional materials, including Fitzhenry’s Wells 

Submission and SEC interview transcripts; that letter reiterated that Fitzhenry had intended to confirm only the legal 

representations in the 1999 management representation letter and inferred that he had relied on Samper and others as 

to the accounting representations. That second letter to the 

Bar also stated that, before signing the 1999 management 

representation letter, Fitzhenry specifically had confirmed 

with Samper that the information in the letter was accurate. At the time that Ellis sent those letters, the SEC settlements had been finalized, and Ellis had no knowledge of 

any pending DOJ investigation.

Former DR 5-105(C) prohibited representation of a 

new client “in the same or a significantly related matter” 

when the interests of the new client and a former client “are 

in actual or likely conflict,” unless consent is obtained after 

full disclosure. As to the first requirement, a matter is “significantly related” if representation of the new client “would, 

or would likely, inflict injury or damage upon the former client in connection with any proceeding, claim, controversy, 

** * investigation, charge, accusation, * * * or other particular matter in which the lawyer previously represented the 

former client[.]” Former DR 5-105(C)(1).43 As to the second 

requirement, as discussed earlier, former DR 5-105(A)(2) 

defined a likely conflict as a situation in which the current 

43 The quoted definition refers to a “matter-specific” conflict. Hostetter, 348 

Or at 586. Former DR 5-105(C)(2) alternatively defined a “significantly related 

matter” in terms of being “information-specific,” that is, that the former client 

representation provided the lawyer with confidences or secrets, the use of which 

“would, or would likely, inflict injury or damage upon the former client in the 

course of the subsequent matter.” See Hostetter, 348 Or at 586 (so identifying that 

type of conflict). Here, the Bar argues only that a matter-specific conflict existed.
Cite as 356 Or 691 (2015) 743

and former clients’ objective personal, business, or property 

interests “are adverse.”44 Here, the Bar asserts that it satisfied the “same or significantly related matter” requirement 

because the Fitzhenry Bar matter arose out of the same 

facts and circumstances as those at issue in the SEC proceeding, regarding the 1999 management representation 

letter. Ellis disagrees that the Bar satisfied either the “same 

or significantly related matter” requirement or the separate 

“adversity” requirement.

We agree with Ellis that the Bar did not prove by 

clear and convincing evidence that the “significantly related 

matter” requirement of former DR 5-105(C)(1) was satisfied 

and, therefore, did not prove that the former-client conflicts 

prohibition set out in former DR 5-105(C) applied to Ellis’s 

representation of Fitzhenry in the Bar matter. On that 

point, the question is not whether Fitzhenry’s Bar matter 

involved many of the same facts as the SEC investigation; 

it indisputably did. Rather, the question is whether Ellis’s 

representation of Fitzhenry in the Bar matter would or 

would likely have inflicted injury or damage on Daltry’s or 

Samper’s interests in connection with the SEC investigation. 

See Hostetter, 348 Or at 588 (“significantly related” requirement focuses on injury or damage to former client’s interests

in connection with earlier representation, not injury to former client in abstract sense).

Three factors prompt us to conclude that no such 

likelihood existed here. First, at the time when Ellis wrote 

his letters to the Bar on Fitzhenry’s behalf, the SEC investigation had ended, and Samper’s settlement and the SEC’s 

judgment against him—which had incorporated Samper’s 

execution of a Consent to Entry of Judgment that included 

SEC findings of fraud—had been entered; Daltry, meanwhile, had no need to settle with the SEC, because he had 

not been the subject of a civil enforcement action. Nothing 

in the record supports a determination that Ellis’s representation of Fitzhenry in the Bar matter—which concerned 

44 We note that former DR 5-105(C) particularly frames the former-client conflict inquiry in terms of whether “the interests of the current and former clients 

are in actual or likely conflict” (emphasis added), whereas former DR 5-105(A)(2) 

served to define a “likely conflict of interest” in terms of a scenario in which the 

objective interests of the clients “are adverse.” 
744 In re Ellis / Rosenbaum

solely a professional licensing consequence for Fitzhenry, 

relating to his conduct as FLIR’s General Counsel, and 

had no implications for either Samper or Daltry—would or 

would likely have inflicted injury or damage on those former clients in connection with an SEC investigation that 

had ended. Second, Ellis’s letters to the Bar asserted a general position on Fitzhenry’s behalf that was consistent with 

Samper’s own SEC testimony, in that Samper had acknowledged to the SEC that he as CFO had been responsible for 

FLIR’s accounting; that position therefore was not likely to 

inflict on Samper any injury or damage in connection with 

the SEC proceeding in any event. And third, Kaner testified 

that it was customary and expected for General Counsel 

such as Fitzhenry to rely on the representations of others—

including the CFO—in signing management representation 

letters and that Kaner never had concluded that Ellis’s representation of Fitzhenry in the Bar matter had inflicted any 

injury on Samper’s interests. No countering evidence in the 

record persuades us that Ellis’s representation of Fitzhenry 

in his Bar matter would or would likely have inflicted injury 

or damage on either Samper’s or Daltry’s interests in connection with the SEC investigation. It follows that, because 

Fitzhenry’s Bar matter did not involve “the same or significantly related matter” as defined in former DR 5-105(C)(1), 

the trial panel correctly determined that no former-client 

likely conflict of interest existed under former DR 5-105(C).

VI. TENTH AND TWELFTH CAUSES—FORMER

DR 5-105(C) AND FORMER DR 1-102(A)(3), 

FORMER-CLIENT LIKELY CONFLICTS AND 

MISREPRESENTATION BY OMISSION

DURING DOJ REPRESENTATION

A. Former-Client Likely Conflicts of Interest

1. Additional Facts

The Bar’s tenth (Rosenbaum) and twelfth (Ellis) 

causes alleged conflicts between FLIR on the one hand, and 

Daltry and Samper on the other, during the DOJ investigation. To more fully understand the parties’ arguments and 

the trial panel’s decision under those causes, we first provide 

a more detailed summary of the underlying facts.
Cite as 356 Or 691 (2015) 745

Shortly after learning about the DOJ investigation, 

the accuseds met with Assistant United States Attorney 

Garten on January 30, 2003. Garten told the accuseds that 

he did not intend to target FLIR; he also gave them a DOJ 

memorandum that, among other things, noted that company cooperation with the DOJ was one of many factors for 

the DOJ to consider in deciding whether to seek corporate 

fraud charges. The accuseds had told Glade, Kaner, and 

Neil about the meeting beforehand; the day after the meeting, the accuseds relayed the meeting discussion to Kaner, 

and Rosenbaum faxed the DOJ memorandum to Kaner. The 

accuseds attempted to contact Daltry but were unable to 

reach him until late February.

The DOJ began requesting FLIR documents immediately. On January 31, 2003, at FLIR’s direction, Stoel Rives 

sent to the FBI redacted documentation relating to the 2000 

FLIR special committee investigation, which previously had 

been provided to the SEC. Stoel Rives sent a second group 

of related documents two weeks later that contained the 

redacted material, which—consistently with Wynne’s testimony in the SEC investigation—had characterized FLIR’s 

accounting errors as involving some competence issues on 

Samper’s part, but not fraud.

On February 4, 2003, Garten and Rosenbaum met 

by phone. Garten identified Stringer, Samper, Eagleburger, 

and Martin as potential criminal defendants. Rosenbaum 

relayed that conversation to Glade and Kaner. The following week, in a meeting involving Garten, Ellis, Wynne, 

and Lewis, Lewis told Garten that FLIR would cooperate 

with the criminal investigation. In addition to FLIR’s cooperation, however, Garten wanted the accuseds to help him 

develop evidence against individual potential defendants. 

Afterwards, Ellis told Wynne and Lewis that Stoel Rives 

ethically could not cooperate in the manner that Garten had 

requested.

On February 14, 2003, Garten wrote to the accuseds, 

requesting that FLIR provide its annual reports, certain 

SEC filings, bank documents, and compensation history for 

certain individuals, and also requesting that FLIR coordinate DOJ interviews of current and former FLIR personnel. 
746 In re Ellis / Rosenbaum

Garten’s letter also stated, consistently with the DOJ memorandum, that the DOJ’s “assessment of the extent of [FLIR’s] 

cooperation will be a function, in part, of how proactive [the 

accuseds] are in assisting us with our proof against the former employees identified in the SEC complaint.”45 That part 

of the letter distressed both accuseds, because they understood it to expressly request their personal assistance in 

developing a criminal case against former clients. They theorized that Garten’s request ultimately might harm Garten’s 

position because, if such a course were pursued, the federal 

prosecution could be tainted due to attorney-client privilege 

and fiduciary obligation violations. Rosenbaum wrote to 

Garten, stating that the accuseds’ earlier client representations limited their potential actions in the DOJ investigation. The accuseds did not send a copy of either Garten’s 

letter or Rosenbaum’s response to Daltry, Samper, Glade, or 

Kaner, because they did not intend to assist in the manner 

requested, although they did send Garten’s letter to FLIR 

and began collecting the requested documentation.

The accuseds met with Garten on February 19, 

2003. Garten now acknowledged that the accuseds’ earlier 

representations limited their ability to cooperate. Garten 

also stated that he might not pursue a case against Daltry 

or Fitzhenry if they cooperated, but the same was not true 

for Samper. He also stated that Stringer, Martin, Samper, 

Fitzhenry, and Eagleburger all would need lawyers, although 

45 Garten’s February 14, 2003, letter further stated that, “[i]n this case, 

[FLIR] seeks immunity from prosecution.” At the trial panel hearing, however, 

the accuseds introduced an April 2011 declaration from Garten clarifying that 

that statement was meant to express Garten’s understanding from Wynne that 

FLIR had been willing at the outset to cooperate with the criminal investigation. 

Garten’s declaration also stated that, to the best of his recollection, the issue of 

FLIR seeking immunity never arose and was not discussed either formally or 

informally.

We note that, generally speaking, an immunity or nonprosecution agreement involves a promise that the defendant will be immune from prosecution 

“in exchange for providing information or otherwise assisting the government.” 

Nancy Hollander, Barbara E. Bergman, and Melissa Stephenson, 1 Wharton’s 

Criminal Procedure § 1:8 n 1 (14th ed 2010). Such an arrangement is not the 

same as a decision on the prosecution’s part not to prosecute a particular potential defendant; instead, the former requires a meeting of the minds between the 

parties. Cf. United States v. Wilson, 392 F3d 1055, 1059-60 (9th Cir 2004) (contract principles apply to claimed immunity agreements, including requirement 

that prosecution objectively offered or promised immunity in exchange for some 

consideration). 
Cite as 356 Or 691 (2015) 747

he did not yet know about Daltry. In discussing what FLIR 

could tell its customers, Garten stated that they could be told 

that the DOJ was focusing on individuals involved in the 1998 

and 1999 accounting issues, and that FLIR had been assured 

that—provided that it cooperated—it would not be subject to 

criminal prosecution. Neither accused understood that statement to mean that FLIR effectively had promised cooperation in exchange for immunity from prosecution; instead, 

they understood it to be a direction from Garten about 

what customers could be told.46 Garten sent the accuseds 

a confirming e-mail later that day, essentially stating that 

he was abandoning his request for their personal cooperation because upcoming witness interviews might implicate 

their former clients Daltry, Samper, and Eagleburger. His 

e-mail also requested the accuseds’ assistance in scheduling witness interviews and reiterated his earlier document 

production request. Thereafter, the accuseds had no direct 

contact with Garten or any involvement in the criminal case 

other than document production and witness scheduling. 

Rosenbaum told Glade about their meeting with Garten that 

same day. Also on that date, Stoel Rives sent a third group 

of documents to the DOJ, consisting of pleadings from the 

public record in the class action litigation.

The next day, Rosenbaum wrote to Glade, confirming that FLIR was not a DOJ target and that Samper 

and others, including Daltry, Fitzhenry, and Eagleburger, 

might need criminal lawyers. The letter also stated that the 

accuseds expected to continue to assist FLIR with document 

production and to make witnesses available for interviews. 

Rosenbaum sent a similar letter to Eagleburger’s lawyer, 

Neil, the next day. The record contains no indication that 

Glade, Kaner, or Neil objected to the accuseds’ ongoing document production and assistance with witness scheduling.

The following day, Stoel Rives provided Muessle’s 

evaluation documentation to the DOJ (previously provided 

to the SEC), as well as hundreds of other documents, which 

appear to have consisted entirely of public FLIR securities 

filings. And, a few days later, Rosenbaum sent Garten the

46 As noted above, Garten’s April 2011 declaration similarly confirmed that 

Garten had no understanding in 2003 that the DOJ had discussed any formal or 

informal immunity arrangement for FLIR.
748 In re Ellis / Rosenbaum

requested compensation data for Daltry and Fitzhenry, 

obtained from certain public FLIR filings. At some point, 

after coordinating with Rosenbaum, Muessle also sent 

Garten the requested compensation data for Samper, which 

Muessle had separately compiled. It appears from the record 

that, although the compensation data for certain directors 

and officers other than Samper had been publicly available, none of the compensation information transmitted to 

Garten previously had been produced to the SEC by FLIR. 

The record also shows, however, that Glade and Kaner previously had submitted Samper’s compensation information 

to the SEC in response to a subpoena directed to Samper.

Meanwhile, Rosenbaum had been trying for several weeks to reach Daltry. Rosenbaum and Daltry spoke 

on February 24, 2003, and she recommended that he retain 

criminal defense counsel. Daltry immediately retained 

Myers, and Rosenbaum then told Myers that Garten was 

requesting FLIR documents from the dates pertaining to 

the SEC investigation, that some documents were beyond 

the scope of the SEC investigation,47 that Garten did not 

intend to charge FLIR, and that Garten was inclined to 

give Daltry immunity if he cooperated. The next day, Ellis 

reiterated to Myers that Garten had asked FLIR to produce 

documents, and Myers understood that the documents were 

being produced accordingly. Myers did not object to the document production.

In late February 2003, Wynne met separately with 

Garten, in part to reiterate FLIR’s intent to cooperate. 

Afterwards, Wynne proposed to the accuseds that FLIR 

retain separate counsel as to the DOJ investigation but that 

the accuseds continue to serve as FLIR’s document depository and to schedule witnesses. In proposing that limited 

representation, which Garten had approved, Wynne reasoned that the accuseds were the most familiar with all the 

pertinent documentation and witness contact information, 

and that FLIR could leverage Stoel Rives’s extensive prior 

cataloging of FLIR’s documents—as well as its FLIR document database—relating to the SEC investigation, thereby

47 Myers testified that, although he could not specifically recall, Rosenbaum 

also may have told him that requested documents already had been provided to 

the DOJ.
Cite as 356 Or 691 (2015) 749

significantly reducing the cost to FLIR and ensuring a more 

timely and efficient response to the DOJ.

The accuseds asked a partner and in-house ethics 

expert whether Wynne’s request for limited representation 

required consent from their former clients. The three determined that consent was unnecessary because the arrangement did not involve any conflict of interest that must be 

disclosed, but the partner nonetheless suggested that the 

accuseds seek consent. Rosenbaum drafted a disclosure and 

consent letter, incorporating some input from the partner; 

Ellis also reviewed and approved the letter.

Rosenbaum sent the disclosure letter, dated March 3,

2003, to FLIR and to Daltry, Samper, and Eagleburger, in 

care of their individual counsel and also Samper’s separately 

retained criminal defense counsel. The letter explained:

•	 FLIR had been told that it was not the DOJ’s 

focus and did not expect to be a defendant, and 

it had waived its attorney-client privilege with 

Stoel Rives for an identified time period;

•	 Stoel Rives had been asked to advise FLIR, 

which was cooperating with the DOJ investigation, and to assist FLIR in producing documents 

and arranging for witnesses to be interviewed;

•	 The criminal investigation related to the accuseds’ 

earlier representations of Daltry, Samper, and 

Eagleburger, and had potentially adverse consequences to them;

•	 The accuseds had informed FLIR and the DOJ 

that Stoel Rives could cooperate only to the 

extent consistent with obligations arising from 

their past representations;

•	 The accuseds had met with an Assistant United 

States Attorney but did not intend to have further contact, other than facilitating document 

production and interview scheduling;

•	 The accuseds would not voluntarily disclose client confidences or affirmatively assist the DOJ in 

developing its case;
750 In re Ellis / Rosenbaum

•	 Stoel Rives would not voluntarily produce information or materials arguably subject to claims of 

confidentiality, and Stoel Rives would inform the 

recipient’s counsel of any DOJ request for such 

materials so that counsel could object if desired;

•	 In deciding whether to consent, the recipients 

should consider how the accuseds’ representation 

of FLIR respecting the DOJ investigation would 

affect them;

•	 In the accuseds’ assessment, the risk to the recipients from their limited representation of FLIR 

was “very small”; and

•	 Each recipient should “review these matters carefully and for yourself” and seek advice from independent counsel to assist in determining whether 

to consent to the limited representation.

Daltry consented after consulting with Myers, 

conditioned on Myers’s understanding that the accuseds 

would only produce documents and arrange interviews.48

Eagleburger also consented, and Samper consented after 

consulting counsel, although six weeks elapsed between the 

date of Rosenbaum’s letter and receipt of Samper’s returned 

letter, signed by Samper and confirmed by Glade. In confirming Samper’s consent, Glade further confirmed his understanding that Stoel Rives already was producing documents 

to the DOJ. In the meantime, the accuseds arranged for further witness interviews and produced more documents. For 

its part, FLIR retained other counsel to represent it in other 

aspects of the DOJ investigation—specifically, FLIR’s ongoing cooperation therewith.

2. Trial Panel Decision and Parties’ Contentions

In the ninth (Rosenbaum) and eleventh (Ellis) 

causes, the complaints alleged violations of former DR 

48 Myers expressly had conditioned Daltry’s consent because he wanted to 

confirm that the representation would be narrow, limited to document production and witness scheduling only. In that regard, the Bar raises issues on review 

about the note in Rosenbaum’s letter that the accuseds would be “advising” FLIR. 

On review of the record as a whole, however, we find that the accuseds’ limited 

representation of FLIR during the DOJ investigation was intended to—and did—

extend to document production and witness scheduling only.
Cite as 356 Or 691 (2015) 751

5-105(E) (current-client conflicts), arising from the 

accuseds’ limited representation of FLIR during the DOJ 

investigation. The complaints alternatively alleged, in the 

tenth (Rosenbaum) and twelfth (Ellis) causes, that the 

same conduct violated former DR 5-105(C) (former-client 

conflicts). Specifically, the complaints alleged that FLIR’s 

interests at that time conflicted with the interests of current 

or former clients Daltry and Samper, and that Rosenbaum’s 

March 3, 2003, letter insufficiently disclosed the nature of 

those conflicting interests in seeking consent to the limited 

representation.49

The trial panel addressed the identified conflict allegations primarily under former DR 5-105(E) (current clients), 

as set out in the ninth and eleventh causes. The panel did 

not determine whether “actual,” as opposed to “likely,” conflicts existed and instead identified the question as whether 

“an actual or likely conflict” existed that required full disclosure under former DR 10-101(B). The panel ultimately 

determined that the accuseds had not made full disclosure 

to Daltry and Samper in Rosenbaum’s March 3, 2003, letter 

so as to obtain those former clients’ informed consent to the 

accuseds’ representation of FLIR in the DOJ investigation. 

The panel expressly identified certain information that—in 

its view—the accuseds should have disclosed; we discuss 

that determination in greater detail later in this opinion. In 

the panel’s view, the accuseds’ failure to disclose the identified information violated former DR 5-105(E) (current-client 

likely conflicts, insufficient disclosure). The panel similarly 

and briefly determined that the Bar also had proved the 

alternatively alleged tenth and twelfth causes under former

DR 5-105(C) (former-client conflicts).

On review, the accuseds first argue that the trial 

panel erroneously concluded that they should have disclosed certain information that the Bar did not identify in 

its complaints. Otherwise, the accuseds argue that—given 

the limited nature of their representation of FLIR during 

the DOJ investigation—no conflict of interest existed that 

49 All those same causes further alleged that Rosenbaum’s letter violated former DR 1-102(A)(3) (misrepresentation by omission), which we briefly discuss in 

the next section of the opinion.
752 In re Ellis / Rosenbaum

required any disclosure and, alternatively, even if a conflict 

did exist, their disclosure in Rosenbaum’s March 3, 2003, 

letter was sufficient. For its part, the Bar agrees with the 

panel about the insufficient disclosure; it also more fully 

argues why the accuseds’ limited representation of FLIR 

triggered the former-client likely conflict prohibition in former DR 5-105(C) as to Daltry and Samper, as alleged in the 

tenth and twelfth causes. (The Bar raises no current-client 

conflict allegations on review.)

3. Assessment of Former-Client Likely Conflict 

Arising From Limited Representation During DOJ 

Investigation

We begin with the threshold question whether former DR 5-105(C) applied to the accuseds’ limited representation of FLIR in the DOJ investigation, so as to trigger the 

“full disclosure” and consent requirements of former DR 

5-105(D) and former DR 10-101(B).50 As explained earlier, 

among other things, former DR 5-105(C) prohibits a lawyer 

who previously represented a former client from representing a new client when (1) the new representation involves 

a “significantly related matter”; and (2) the current and 

former clients’ interests are in likely conflict. Here, the 

accuseds do not dispute that their limited representation of 

FLIR in the DOJ investigation likely satisfied the “significantly related matter” requirement; indeed, their March 3, 

2003, letter acknowledged as much.51 Instead, they argue 

that the Bar did not satisfy the second requirement—that 

is, the Bar did not show that the interests of FLIR and former clients Daltry and Samper were in likely conflict at the 

outset of the limited representation. As to that question, the 

Bar was required to prove that the objective personal, business, or property interests of FLIR, on the one hand, and 

50 As the accuseds note on review, the trial panel did not make any express 

finding about the existence of a prohibited former-client conflict under former DR 

5-105(C). Instead, the panel focused on the accuseds’ March 3, 2003, disclosure 

letter and determined that the accuseds had violated former DR 5-105(C) because 

the consent that they obtained under former DR 5-105(D), which permitted the 

representation, was invalid due to lack of full disclosure.

51 We accept the accuseds’ concession and do not separately analyze whether 

the Bar satisfied the “significantly related matter” requirement under former DR 

5-105(C).
Cite as 356 Or 691 (2015) 753

Daltry and Samper on the other, were adverse at the time in 

question. Former DR 5-105(A)(2).

In the context of assessing whether a former-client 

likely conflict exists under former DR 5-105(C), this court 

has set out the following analysis. First, a lawyer faced with 

a potential conflict must assess “the former client’s interests 

that pertain to the matter in which the lawyer previously represented the former client.” Hostetter, 348 Or at 584 (emphasis added). After identifying the former clients’ interests 

as described, the lawyer must determine whether—at the 

time of seeking to undertake the new representation—the 

former client’s interests “are adverse to the current client 

during the subsequent representation.” Id. at 594. That is, 

the question is not whether the former client has a current, 

independent interest that is adverse to the current client’s 

interest in the new representation; instead, the question is 

whether the former client’s interest in relation to the earlier 

representation is adverse to the current client’s interest in 

the new representation.

This court’s case law illustrates application of 

that framework. For example, in Hostetter, 348 Or 574, the 

accused lawyer had drafted loan documents for a former client. The former client later died, and the lawyer then represented the lender in a claim against the former client’s 

estate. Id. at 577. The central question as to adversity was 

whether the former client’s “interest” had survived her 

death, so as to establish a likely conflict under former DR 

5-105(C). Id. at 581-82. After determining that the former 

client’s interest did survive, the court identified her interest 

in the earlier representation as being one of a debtor, with 

an interest in minimizing her legal debt to the extent legally 

possible and reasonable. By contrast, the lender’s interest in 

the new representation was to collect as much as possible 

from the estate. Id. at 593. By their nature, those interests 

were “different” and “adverse,” and therefore amounted to a 

likely conflict of interest. Id.

Similarly, in In re Brandsness, 299 Or 420, 702 P2d 

1098 (1985), the lawyer previously had represented a husband and wife in a business venture and also had drafted
754 In re Ellis / Rosenbaum

their wills. After both the venture and the marriage soured, 

the wife rewrote her will with the assistance of a different 

lawyer and also hired her own business lawyer. The husband 

subsequently asked the original lawyer to represent him in 

a dissolution proceeding, in which the use and division of 

assets and liabilities from the business were at issue. Id. at 

422-23. The court assessed the wife’s interest in the context 

of the earlier business representation and determined that 

the dissolution proceeding—in which the necessary “focal 

point” had been the couple’s business—“created an adverse 

relationship” between the former and present clients. Id. at 

429; see also Cobb, 345 Or at 133-34 (investor clients’ interests not adverse to principal company’s interest at point in 

time when all parties sought to dismiss underlying bankruptcy proceeding to protect certain assets in which all 

shared an interest; interests diverged later, when it became 

clear that investors—now former clients—would become 

company’s creditors in bankruptcy).

Applying that framework to the Bar’s allegations 

here, we begin by identifying the interests of the accuseds’ 

former clients Daltry and Samper in relation to the accuseds’ 

earlier representation of them during the SEC investigation. 

Daltry’s and Samper’s most pressing interests during the 

SEC investigation had been to avoid individual process violations, to avoid individual SEC civil enforcement actions, 

and—as to Samper once the SEC filed an enforcement action 

against him—to mitigate the potential negative results 

of that action. Daltry and Samper also shared an interest in having the accuseds protect their client confidences 

obtained during the course of the earlier representation. 

Additionally, Daltry and Samper had an interest during the 

course of the SEC investigation to minimize other potential 

negative consequences that might flow to them as a result of 

the investigation.

Next, we identify the interest of FLIR in the new, 

limited representation in the DOJ investigation. As noted, 

Garten told the accuseds at the outset that he did not intend 

to target FLIR but instead was focused on potential charges 

against several individuals, including Samper and perhaps 

Daltry. In general, then, FLIR’s role at the outset of that 

representation was to serve as a potential governmental 
Cite as 356 Or 691 (2015) 755

witness in a criminal investigation. In the context of the 

accuseds’ agreed-upon limited representation, however, 

FLIR’s interest was narrow: Essentially, FLIR had an interest in demonstrating its willingness to cooperate with the 

DOJ investigation by responding quickly and accurately to 

documentation requests and efficiently assisting with scheduling witness interviews. Relatedly, FLIR had an interest in 

controlling its cost of cooperating by having lawyers familiar with FLIR’s extensive SEC documentation and Stoel 

Rives’s FLIR document database facilitate the DOJ document production.52

Having identified the client interests involved, we 

now discuss whether those interests were adverse when the 

accuseds agreed to undertake the limited representation of 

FLIR during the DOJ investigation. On one hand—unlike 

the factual scenarios in Hostetter and Brandsness—Daltry’s 

and Samper’s self-protective interests in relation to the earlier representation effectively had ended, because the new 

representation commenced after the SEC proceeding had 

ended and the ensuing judgments entered, thereby resolving Daltry’s and Samper’s interests in avoiding process violation charges and SEC enforcement actions. And, nothing 

about FLIR’s narrow interest in cooperating with DOJ document requests and witness interview scheduling, or in controlling its costs, was adverse to those particular interests of 

Daltry and Samper in the earlier SEC representation.53

52 As part of identifying the client interests at stake, the Bar thinks it significant that FLIR had secured some sort of immunity arrangement—even if 

informal—with the DOJ, such that the DOJ would not prosecute FLIR so long as 

it cooperated in the investigation. The Bar did not prove by clear and convincing 

evidence, however, that any such arrangement was made. See 356 Or at 746 n 45 

(noting requirements for immunity or nonprosecution agreement). Indeed, the 

evidence shows that Garten had told FLIR at the outset that it was not a target, 

and Garten later attested that no formal or informal immunity arrangement had 

been discussed. See id. (discussing contents of Garten declaration about nature 

of discussions with FLIR).

53 As noted, Daltry and Samper also each had an interest in protecting previously disclosed client confidences, which continued to exist at the time of the 

accuseds’ limited representation of FLIR. The Bar did not prove, however, that 

any aspect of that personal interest was adverse to FLIR’s interest in the context of the accuseds’ new limited representation of FLIR. Indeed, the accuseds 

expressly told the former clients in Rosenbaum’s March 3, 2003, letter that under 

no circumstances would the limited representation involve voluntary disclosure 

of former client confidences. 
756 In re Ellis / Rosenbaum

The same cannot necessarily be said, however, as to 

Daltry’s and Samper’s interests during the SEC investigation in mitigating against generally negative outcomes, such 

as the future criminal investigation that materialized later 

based on the same general facts. That particular interest 

arguably continued even after the accuseds’ SEC representation of Daltry and Samper had ended, and it arguably was 

inconsistent with FLIR’s interest in demonstrating cooperation with the DOJ through efficient and responsive document production and witness scheduling.54

Ultimately, it is a close question whether, at the 

outset, the interests of Daltry and Samper identified above 

were adverse to FLIR’s—particularly in the context of the 

accuseds’ limited representation of FLIR. After reviewing 

the record and considering the remainder of the parties’ arguments, we assume without deciding that the Bar proved an 

adversity of interests and, therefore, a likely conflict, under 

former DR 5-105(C). We make that assumption because, 

as explained below, our resolution of the Bar’s allegations 

about the accuseds’ disclosure of the purported conflict—

so as to obtain their former clients’ consent to their limited representation of FLIR—resolves these causes in the 

accuseds’ favor.55

54 In making that observation, we reiterate that the key inquiry under this 

cause is whether the client’s respective interests as described above were adverse, 

therefore presenting a likely conflict, at the outset of the DOJ investigation. The 

Bar in large part focuses on Samper’s interests during the DOJ investigation; for 

example, it relies on multiple purported facts that arose during that investigation—

all occurring after the date of any fact alleged in the complaints—that purport to 

show that the accuseds’ ongoing representation of FLIR in fact harmed Samper 

in the DOJ proceeding and therefore must have been adverse to him. 

As explained earlier, however, former DR 5-105(C) has two components: a 

determination whether the new representation involves “the same or a significantly related matter”; and a determination whether the interests were adverse 

so as to show a likely conflict. The Bar’s argument about injury or harm to Samper 

during the DOJ investigation certainly might pertain to the first requirement 

(which, as noted, the accuseds concede was satisfied here for other reasons), but 

does not pertain to the second. See former DR 5-105(C)(1) (defining “significantly 

related” matter as scenario in which new representation would or would likely 

inflict injury or damage on former client in connection with earlier representation); Hostetter, 348 Or at 594 (cautioning against conflating “adversity” with 

“injury” for purposes of adversity requirement). 

55 The Bar also argues that the accuseds cannot rely on their characterization of their representation of FLIR as a “ministerial role” so as to be exempt from 

the disciplinary rules. The accuseds do not argue, however, that their limited representation rendered them exempt from the rules; instead, they argue that the 
Cite as 356 Or 691 (2015) 757

4. Sufficient Disclosure of Former-Client Likely Conflict,

so as to Obtain Client Consent

As described earlier, the trial panel identified 

certain information that it determined that the accuseds 

should have disclosed in Rosenbaum’s March 3, 2003, letter to Daltry and Samper, so as to satisfy the full disclosure requirements of former DR 10-101(B). That information included (1) a copy of Garten’s February 14, 2003, 

letter requesting the accuseds’ personal cooperation with 

the investigation; (2) the fact that Ellis was representing 

Fitzhenry in the latter’s Bar matter; (3) the fact that Garten 

had requested, and the accuseds had produced, officer compensation information for Daltry and Samper; and (4) the 

fact of an SEC investigation—purportedly with the accuseds’ 

assistance—of transactions previously not alleged, specifically involving Rosenbaum’s October 2002 phone inquiry 

about the Swedish Drop Shipment. The accuseds challenge 

the panel’s determinations in two respects. First, they argue 

that the Bar’s complaints did not allege that they had been 

obligated to disclose most of the information that the panel 

identified and that they therefore had no notice as to those 

allegations. Alternatively, the accuseds argue that they satisfied all full-disclosure requirements. The Bar responds 

that the panel correctly determined that Rosenbaum’s 

March 3, 2003, letter did not provide full disclosure to sufficiently permit the accuseds’ former clients to consent to the 

accuseds’ limited representation of FLIR during the DOJ 

investigation.

We first briefly address the accuseds’ contentions 

that the complaints did not allege that they were required 

to disclose to former clients Daltry and Samper most of 

the information that the trial panel determined should 

have been disclosed. We agree with the accuseds that the 

nature of their limited representation narrowed the scope of their client FLIR’s 

interests in the DOJ investigation for purposes of applying the “likely conflict” 

requirement of former DR 5-105(C). 

As a general matter, limited representation of a client is permitted, see generally Cobb, 345 Or at 111 (recognizing lawyer’s representation of individual 

investors for “specific limited purposes,” contrasted against serving as general 

business counsel), and the record demonstrates that, after the accuseds agreed 

to undertake the limited representation of FLIR, they accordingly limited their 

involvement to document production and scheduling witness interviews.
758 In re Ellis / Rosenbaum

complaints did not allege that they should have provided 

Daltry and Samper with a copy of Garten’s February 14, 

2003, letter, and that they therefore had no notice of that 

specific purported misconduct. See 356 Or at 738 (describing 

notice requirements in Bar proceedings). The complaints 

did, however, allege that the accuseds should have disclosed 

to Daltry and Samper “the nature or extent of Garten’s 

demands for FLIR’s cooperation in the criminal case,” as 

reflected in his February 14, 2003, letter. Given the relationship between that allegation and the panel’s determination 

that the accuseds should have provided Garten’s letter to 

Daltry and Samper, we think that the panel’s determination 

essentially amounted to a determination that the Bar had 

proved its allegation about lack of disclosure respecting the 

nature and extent of Garten’s demands. The Bar therefore 

has sufficiently raised that question, as stated in its complaints, on review.

As to Ellis’s representation of Fitzhenry in his 

Bar matter, the accuseds emphasize that the trial panel

commented—in relation under the tenth and twelfth 

causes—that Ellis should have obtained consent to that new 

representation of Fitzhenry. The panel’s opinion does make 

that observation; however, it also states that the accuseds 

should have disclosed in Rosenbaum’s March 3, 2003, letter 

to Daltry and Samper the fact that Ellis was representing 

Fitzhenry in the Bar matter arising from related facts, so 

that Daltry and Samper had sufficient information to consent to the accuseds’ limited representation of FLIR. The 

complaints contained that same disclosure allegation, and it 

therefore is properly before us on review.

As to the trial panel’s determination that FLIR had 

been asked to produce, and already had produced, compensation information for Daltry and Samper, the accuseds are 

correct that the tenth and twelfth causes did not allege that 

they were required to disclose that specific information. 

The complaints did, however, allege more generally that the 

accuseds should have disclosed that they already had produced FLIR documents to the FBI. The panel’s more specific 

determinations fell within that general allegation, which is 

properly before us on review. We proceed to consider whether 
Cite as 356 Or 691 (2015) 759

Rosenbaum’s March 3, 2003, letter satisfied the accuseds’ 

full disclosure obligations.

Under former DR 10-101(B)(1), “‘Full disclosure’ 

means an explanation sufficient to apprise the recipient of 

the potential adverse impact on the recipient, of the matter 

to which the recipient is asked to consent.” This court has 

explained that that rule requires an explanation providing 

sufficient detail to permit the recipient to understand why 

it may be desirable to obtain independent counsel. In re 

Boivin, 271 Or 419, 424, 533 P2d 171 (1975). Generally, such 

an explanation must show the nature of the likely conflict 

and apprise the client of the potential adverse consequences 

of that conflict. In re Brandt/Griffin, 331 Or 113, 137, 10 P3d 

906 (2000). In Brandt/Griffin, for example, the accused lawyers sent a disclosure letter to a former client that contained 

certain facts, but this court determined that the facts provided suggested that no conflict existed, whereas additional 

facts—had they been disclosed—would have shown the true 

divergence of the respective clients’ interests and explained 

both the nature of the conflict and the adverse consequences 

that might flow to the client being asked to provide consent. 

Id.

The requirement in former DR 10-101(B)(1) that 

sufficient facts be disclosed does not, however, extend to “all 

facts known to [the lawyer] that could be helpful to the former client.” Cobb, 345 Or at 135. In Cobb, discussed earlier, the lawyer had represented some investor partnerships 

in a company and also an entity associated with the company in different aspects of complex bankruptcy proceedings, in which a trustee had been appointed to represent the 

bankruptcy estate for the entity. Id. at 110-13. After it later 

became apparent to the lawyer that he could not continue 

to represent all the clients, he filed a motion to withdraw 

accompanied by an affidavit disclosing certain facts. Id. at 

113. The Bar contended that the affidavit should have disclosed that the investor partnerships had made certain payments to the lawyer and other related entities that instead 

should have been made to the entity in bankruptcy. This 

court disagreed, reasoning that the lawyer’s affidavit sufficiently had notified the trustee “of the nature of the conflict, 
760 In re Ellis / Rosenbaum

i.e., that the interests of [the entity] and the investor partnerships could diverge and that he could not advocate for 

both.” Id. at 135. The court further explained that, although 

the trustee might have benefitted—for purposes of marshalling the entity’s assets—had the lawyer disclosed the payment information at issue, “that [was] not information that 

the [lawyer] was required to disclose to comply with conflict 

of interest rules.” Id.

Cobb also demonstrates that, although “compliance 

with the letter of the [disclosure] rule is required,” the unique 

circumstances of a particular case may establish satisfaction 

of certain aspects of the rule. Id. at 135-36. There, at an earlier juncture in the case than the events described above, the 

creator of the entity in bankruptcy instructed the lawyer to 

withdraw, but the bankruptcy court wanted the lawyer to 

continue as local counsel. The lawyer sent disclosure letters 

to all his clients, including to the creator and the creator’s 

independent counsel; those letters did not formally advise 

the entity to seek the advice of independent counsel under 

former DR 10-101(B)(2). All clients consented. Later, when 

the lawyer realized that an actual conflict had arisen among 

his clients, he again sought to withdraw from representing 

the entity (which the bankruptcy court allowed), although he 

continued to represent the partnerships. Id. at 132-35. The 

Bar raised two arguments on review asserting insufficient 

disclosure, which, as discussed below, this court rejected.

First, the Bar argued that the lawyer’s initial disclosure letter to the entity had been insufficient because it 

had failed to confirm in writing the lawyer’s recommendation that the client seek independent legal advice. This court 

disagreed, reasoning that the lawyer had addressed his 

disclosure letter to not only the entity’s creator but also to 

three of the creator’s independent lawyers. When viewed in 

that context, the content of the letter—including facts that 

explained the potential conflict and its request for “advice 

and assistance in determining the appropriate role for [the 

lawyer] in these cases”—satisfied both the requirement and 

purpose of the “written recommendation to seek independent counsel advice” component of the disclosure rule, former DR 10-101(B)(2). Id. at 133.
Cite as 356 Or 691 (2015) 761

Second, the Bar argued that, in the course of moving 

to withdraw from representing the entity, the lawyer should 

have advised the entity in writing—through the bankruptcy 

trustee—to seek independent legal advice before consenting 

to the lawyer’s withdrawal. Again, even after acknowledging 

that compliance with “the letter of the rule is required,” id.

at 135, this court disagreed. In doing so, the court emphasized the “unique” circumstances of the case, in which the 

court-appointed trustee—who was an experienced government lawyer (and who had not been a client of the lawyer or 

relied on his advice)—was the only person with authority to 

decide whether to consent on behalf of the entity. In those 

circumstances, the court determined that the lawyer had 

not been required to advise the trustee to seek outside legal 

advice on the entity’s behalf before consenting to the lawyer’s withdrawal. Id. at 136.

We now apply the foregoing principles to determine 

whether Rosenbaum’s March 3, 2003, letter to Daltry and 

Samper satisfied the full disclosure requirements of former

DR 10-101(B)(1). At the outset, we reiterate that the nature 

of the accuseds’ limited representation of FLIR in the DOJ 

investigation consisted of only producing documents and 

scheduling witnesses. Thus, the “matter to which [Daltry 

and Samper were] asked to consent,” former DR 10-101(B)(1),

was only that limited representation. It follows that the 

accuseds were required to provide an explanation sufficient 

to both explain the nature of the conflict and to apprise 

Daltry and Samper of the potential adverse impact on them 

if the accuseds—on FLIR’s behalf—located FLIR documents 

requested by the DOJ, reviewed them for privilege or confidentiality issues, transmitted them to the DOJ or the FBI, 

and scheduled witnesses for DOJ interviews. See Brandt/

Griffin, 331 Or at 136-37 (disclosed facts must show divergence of respective clients’ interests and potential adverse 

consequences).

We conclude that Rosenbaum’s March 3, 2003, 

letter complied with former DR 10-101(B)(1). By disclosing that the DOJ was investigating Samper and possibly Daltry in a matter “significantly related” to the SEC 

investigation that had potential adverse consequences to
762 In re Ellis / Rosenbaum

them,56 but that FLIR did not expect to be a defendant 

and was cooperating with the investigation, the accuseds 

explained the divergence of interests between their current 

and former clients, as well as the nature of that conflict. 

By disclosing that they had been asked to assist FLIR in 

producing documents and arranging for witness interviews, 

the accuseds explained both the nature of the limited representation and the potential adverse consequences to 

Daltry and Samper: As a result of the representation, the 

accuseds would assist in producing FLIR documents that 

might help the DOJ build its case, which ultimately might 

subject Daltry or Samper to criminal prosecution and penalties.57 Further, the letter explained that the accuseds 

had informed FLIR and the DOJ that they could cooperate only as consistent with their earlier representational 

obligations, that they would not voluntarily produce any 

information or materials arguably subject to confidentiality claims by Daltry or Samper, and that they would inform 

Daltry’s and Samper’s counsel of such requests so that counsel could object if desired. Finally, the letter recommended 

that Daltry and Samper seek the assistance of independent 

counsel to determine whether consent should be given, and 

the letter was separately sent to those clients’ independent 

counsel. Collectively, those aspects of the letter satisfied the 

requirements of former DR 10-101(B).

As set out earlier, the trial panel determined that 

the accuseds should have disclosed four additional points of 

information, and the Bar—elaborating on the initial disclosure allegations in its complaints—urges us to affirm that 

determination on review. For the reasons explained below, 

we do not agree that the accuseds were required under 

56 Rosenbaum’s letter explained the “significantly related matter” component 

of former DR 5-105(C) and stated that the DOJ investigation was a “related matter” for purposes of that rule. 

57 Of course, as Myers acknowledged before the trial panel, FLIR itself would 

have been required to produce the documents to DOJ in any event, even if the 

accuseds had not been acting as its counsel for that purpose at that time. (The 

same is true for scheduling witness interviews.) It was the document production 

itself—not necessarily the accuseds’ participation in the production—that most 

clearly had potential adverse consequences to the Daltry and Samper. As noted, 

the accuseds’ limited representation ensured efficiency in both the document production and witness scheduling processes—a benefit that flowed to both FLIR 

and the DOJ, and reduced FLIR’s (and likely the DOJ’s) costs. 
Cite as 356 Or 691 (2015) 763

former DR 10-101(B)(1) to disclose the additional information that the panel identified.

First, the complaints alleged that the accuseds 

should have disclosed “the nature or extent of Garten’s 

demands for FLIR’s cooperation in the criminal case,” 

apparently referring at least in part to Garten’s initial 

request that the accuseds personally assist the DOJ. (As 

noted, the trial panel determined that the accuseds should 

have sent Garten’s February 14, 2003, letter to Daltry and 

Samper.) As discussed earlier, however, Garten soon withdrew that request after further consideration. Disclosure 

of that request—withdrawn shortly after it was made—to 

Daltry and Samper was not necessary to apprise them of 

the nature of the conflicting client interests or the potential 

adverse impact on them flowing from the accuseds’ limited 

representation of FLIR in the DOJ investigation.58

Second, the complaints alleged—and the trial panel 

determined—that the accuseds should have disclosed that 

Ellis was representing Fitzhenry in his Bar matter, arising from alleged misrepresentations made in the 1999 management representation letter. At the panel hearing, Myers 

briefly testified that his initial understanding in conversations with Ellis had been that Fitzhenry was perhaps a 

DOJ target to a lesser extent, and so he would have liked to 

have known at the time of the limited representation that 

Ellis also was representing Fitzhenry in the Bar matter. 

As explained earlier, however, former DR 10-101(B)(1) does 

not require a lawyer seeking client consent to disclose “all 

facts known to [the lawyer] that could be helpful to the former client.” Cobb, 345 Or at 135. Instead, the rule requires 

an explanation sufficient to describe the nature of the conflict between the clients—here, FLIR on the one hand, and 

Daltry and Samper on the other—and the potential adverse 

consequences that could flow from the new representation. 

See id.; Brandt/Griffin, 331 Or at 137 (both so explaining). 

58 The Bar also argues on review that Rosenbaum’s March 3, 2003, letter to 

Daltry and Samper failed to fully disclose facts regarding FLIR’s purported informal immunity arrangement with the DOJ—that is, to cooperate in exchange for 

avoiding prosecution. As noted earlier, however, see 356 Or at 746 n 45, 747 n 46, 

the facts in the record do not support the Bar’s theory that any such arrangement 

in fact had been made. 
764 In re Ellis / Rosenbaum

As already described, Rosenbaum’s March 3, 2003, letter 

disclosed sufficient facts to apprise their former clients for 

purposes of obtaining consent; they were not required to 

further disclose Ellis’s representation of Fitzhenry in his 

Bar matter—a proceeding with professional licensing implications for Fitzhenry alone, based on facts developed during 

the SEC investigation.

Third, the complaints alleged that the accuseds 

should have disclosed that they already had produced FLIR 

documents to the FBI (and, inferentially by extension, to the 

DOJ); in that regard, the trial panel determined that the 

accuseds should have disclosed to Daltry and Samper that 

the DOJ had requested, and the accuseds had produced, 

their compensation information. As the facts summarized 

earlier demonstrate, however, the accuseds already had told 

Daltry’s and Samper’s independent counsel (Glade, Kaner, 

and Myers)—before sending Rosenbaum’s March 3, 2003, 

disclosure letter—that the DOJ was investigating Samper 

and perhaps Daltry, that the DOJ had requested FLIR documents, and that the accuseds were producing FLIR documents on request on FLIR’s behalf. And, virtually all the 

documents produced in the timeframe that the Bar has 

identified were either part of the SEC proceeding or part of 

the public record.59 Given those facts, we decline to conclude 

that the accuseds were required to disclose in Rosenbaum’s 

March 3, 2003, letter the fact of the ongoing document 

production.

Fourth, the complaints alleged that Rosenbaum’s 

March 3, 2003, letter should have disclosed that, with the 

accuseds’ assistance, the SEC was investigating FLIR’s 

accounting of transactions not previously alleged. As to 

those allegations, the trial panel determined that the 

59 As previously described, by March 3, 2003, the accuseds on FLIR’s behalf 

had produced FLIR documents that previously had been provided to the SEC, 

public FLIR securities filings, and pleadings from the earlier class action litigation. The accuseds had produced one nonpublic document containing previously 

redacted material that had not been produced to the SEC, but that redacted material was consistent with Wynne’s (and Samper’s) assertions made throughout the 

SEC proceeding. As to the compensation information that the accuseds provided 

to the DOJ, Daltry’s had been derived from public FLIR securities filings, and 

Samper’s previously had been provided to the SEC by Glade and Kaner’s law 

firm.
Cite as 356 Or 691 (2015) 765

accuseds should have disclosed that Rosenbaum had contacted the SEC in October 2002 to ask about the Swedish 

Drop Shipment, and the Bar seeks affirmance of that determination on review.60 We conclude that the accuseds were 

not obligated to disclose the fact of Rosenbaum’s SEC phone 

call—to the extent that it arguably showed any “assistance” 

with an ongoing investigation as alleged in the complaints—

to Daltry and Samper. As in Cobb, 345 Or at 135, and as 

with Ellis’s representation of Fitzhenry in his Bar matter, 

discussed earlier, that information might have assisted 

Samper in developing his defense in the DOJ investigation. But its disclosure was not necessary under former DR 

10-101(B)(1) to apprise him of the nature of his developing 

divergent interest and conflict with FLIR in the context of 

the limited representation, or to advise him of the potential 

adverse impact on him if he consented to the accuseds’ representation of FLIR in a role limited to producing requested 

documentation and scheduling witness interviews.

In sum, we conclude that—assuming that a likely 

conflict of interest existed between the accuseds’ current 

client FLIR and their former clients Daltry and Samper 

under former DR 5-105(C) at the time of their limited representation of FLIR in the DOJ investigation—Rosenbaum’s

March 3, 2003, letter to Daltry and Samper set out an explanation sufficient to apprise them of the nature of the conflict and the potential adverse impact flowing to them from 

the limited representation, so as to obtain their consent to 

the representation. The Bar has not proved by clear and 

convincing evidence that the accuseds violated former DR 

5-105(C) or former DR 10-101(B).

B. Misrepresentation by Omission

The Bar also alleged in the tenth and twelfth causes 

that, in failing to make sufficient disclosures in Rosenbaum’s 

March 3, 2003, letter, the accuseds engaged in misrepresentation by omission, because they knowingly failed to 

60 The trial panel also stated that Rosenbaum had provided the SEC with 

documentation as to that transaction and also should have advised Daltry and 

Samper of that fact, but the panel’s earlier factual findings stated that FLIR—

not Rosenbaum herself—had provided follow-up information to the SEC. The Bar 

limits its argument on review to Rosenbaum’s phone call.
766 In re Ellis / Rosenbaum

disclose facts that were material to former clients Daltry’s 

and Samper’s decisions whether to consent to the limited 

representation of FLIR during the DOJ investigation, in 

violation of former DR 1-102(A)(3). See In re Gustafson, 327 

Or 636, 647, 968 P2d 367 (1998) (rule requires that lawyer 

knowingly engage in misrepresentation, including knowing 

failure to disclose material fact that lawyer had in mind). 

Based on its decision that the accuseds insufficiently had 

disclosed identified facts about former-client likely conflicts 

so as to obtain consent under former DR 5-105(D) and former

DR 10-101(B), the trial panel similarly concluded that the 

accuseds had violated former DR 1-102(A)(3). The accuseds 

challenge that conclusion on review; the Bar responds that 

the panel was correct.

In light of our conclusion that Rosenbaum’s March 3,

2003, disclosure letter complied with former DR 10-101(B), 

we further conclude, without additional discussion, that the 

Bar did not prove by clear and convincing evidence that the 

accuseds engaged in misrepresentation by omission in violation of former DR 1-102(A)(3).

VII. CONCLUSION

On de novo review, we conclude that the Bar has 

not proved the allegations at issue on review by clear and 

convincing evidence, and we therefore dismiss those allegations. We otherwise uphold the trial panel’s determinations 

that the Bar also did not prove the remaining allegations 

not at issue on review, and we therefore dismiss those allegations as well.

The amended complaints are dismissed.