As with competence, neglect is not interchangeable with negligence: "A lawyer's neglect of a client's business does not necessarily give rise to actionable negligence." In re Chambers, 292 Or. 670, 674 n 3, 642 P.2d 286 (1982). At the same time, however, this court recently has stated that, "[t]o prove a violation of DR 6-101(B), the Bar must show a course of negligent conduct."
2. This court has held that a lawyer violates DR 7-102(A)(5) by misrepresenting the lawyer's identity while engaged in the practice of law. See In re Chambers, 292 Or. 670, 680-81, 642 P.2d 286 (1982) (lawyer's knowing misrepresentation of self as independent insurance agent violates DR 7-102(A)(5)). Even assuming that the accused relied on the Bar's letters in making the calls, his reliance was not reasonable. The Bar's letters neither stated nor implied that lawyers in the private practice of law may misrepresent their identity or purpose in investigating a matter.
However, in the case that is most similar factually to this case, this court imposed a lengthy suspension rather than disbarring the lawyer. In In re Chambers, 292 Or. 670, 642 P.2d 286 (1982), the lawyer negligently failed to prepare and return a proper summons and failed to communicate with his client. In a criminal matter, the lawyer was incompetent in conducting his investigation of exculpatory evidence on behalf of his client and subsequently trying the case "by the seat of his pants."
We have noted that "neglect" as used in DR 6-101(A)(3) is not synonomous with actionable negligence. In re Chambers, 292 Or. 670, 674, fn 3, 642 P.2d 286 (1982). We here note further that the relationship between DR 6-101(A)(3) and this court's statutory authority to discipline members of the bar under ORS 9.480 (6), referring to "gross or repeated negligence," may be deserving of exploration.
This court dismissed the cause of complaint, explaining that an attorney must be given "reasonable written notice of the charge against him." Id. ; see also In re Chambers , 292 Or. 670, 676, 642 P.2d 286 (1982) (rejecting trial board's finding that lawyer engaged in misrepresentation when pleadings contained no allegation putting lawyer on notice of misrepresentation charge; "[t]he proof supports this finding, but the pleadings do not"). The complaint against respondent did not allege 10 of the rule violations that the commission ultimately found.
, 42 P.3d 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, 330 P.3d 538 (2014) (court did not address theory of โpersonal interestโ not alleged as conflict of interest violation), and Magar, 296 Or. at 803, 806 n. 3, 681 P.2d 93 (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 P.2d 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 P.2d 212 (1991) (adequate notice is necessary component of due process); In re Chambers, 292 Or. 670, 676, 642 P.2d 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.
Whatever the merits of the Bar's alternative theory, the Bar did not allege that theory in its complaint, and it is not properly before us. See In re Chambers, 292 Or. 670, 676, 642 P.2d 286 (1982); In re Ainsworth, 289 Or. 479, 487, 614 P.2d 1127 (1980). The Bar's claim under RPC 1.7(a) accordingly rests on its initial theory, which it did allege in its complaint, that โ[a]t all relevant times there was a significant risk that the Accused's representation of SmithโCanfield would be materially limited by the Accused's personal interest in a sales commission.โ
Former DR 6-101(A)(2) precluded a lawyer from handling a matter "without preparation adequate in the circumstances," and the failure to make a proper investigation of the facts of a case prior to trial has led to discipline. 359 Md. at 75, 753 A.2d at 27 (quoting 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering, 2d ed. ยง 1.1:101 (1997)) (citing In Re Conduct of Chambers, 292 Or. 670, 642 P.2d 286 (1982); People v. Felker, 770 P.2d 402 (Colo. 1989)).
Former DR 6-101(A)(2) precluded a lawyer from handling a matter "without preparation adequate in the circumstances," and the failure to make a proper investigation of the facts of a case prior to trial has led to discipline. See In Re Conduct of Chambers, 292 Or. 670, 642 P.2d 286, 291 (1982); People v. Felker, 770 P.2d 402 (Colo. 1989).
Former DR 6-101(A)(2) precluded a lawyer from handling a matter "without preparation adequate in the circumstances," and the failure to make a proper investigation of the facts of a case prior to trial has led to discipline. See In Re Conduct of Chambers, 292 Or. 670, 642 P.2d 286, 291 (1982); People v. Felker, 770 P.2d 402 (Colo. 1989).