## Facts

- Daniel J. Gatti, an Oregon attorney, previously complained that government lawyers had approved undercover misrepresentations during an anti-fraud investigation; the Bar issued an ethics opinion finding no violation by those lawyers.
- About a year later, while representing a client whose claim was denied after medical review, Gatti suspected a medical-review company of fraud.
- Gatti made two undercover telephone calls: one to a medical reviewer and one to an executive of the company.
- In both calls, Gatti misrepresented his identity and gave a false explanation for his inquiry to obtain information.
- Using information gathered from the calls, Gatti filed a civil fraud action against the company and others.
- The executive complained to the Oregon State Bar, which charged Gatti with violating DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).
- A Bar trial panel found the rule violations occurred but dismissed the proceeding on an estoppel theory based on the Bar’s earlier ethics opinion.
- The Oregon Supreme Court reviewed the matter de novo.

## Issues

1. Whether the Oregon State Bar was estopped from prosecuting Gatti based on its prior ethics opinion regarding undercover misrepresentations by government lawyers.
2. Whether an attorney’s deliberate misrepresentation of identity and purpose during an investigation violates DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).
3. Whether constitutional considerations require an exception permitting investigative misrepresentations by lawyers.

## Decision

- The court held the Bar was not estopped from prosecuting Gatti; reliance on an ethics opinion did not bar enforcement of disciplinary rules.
- The court found Gatti’s misrepresentations violated DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4).
- The court declined to recognize any implied “investigative” exception for undercover work, testers, or anti-fraud investigations.
- The court rejected constitutional defenses, concluding the rules gave adequate notice and were valid as applied.
- The court reversed the trial panel’s dismissal and imposed a public reprimand.

## Legal Principles

- DR 1-102(A)(3) broadly prohibits lawyer conduct involving dishonesty, fraud, deceit, or misrepresentation, including misrepresenting identity or purpose to third parties during an investigation.
- DR 7-102(A)(5) prohibits knowingly making false statements of fact in the course of representing a client, even outside tribunal proceedings.
- A Bar ethics opinion does not amend disciplinary rules and generally does not create an enforceable entitlement to engage in conduct otherwise prohibited by the text of the rules.
- Estoppel against the Bar in attorney-discipline matters is disfavored; reliance concerns may mitigate sanction but do not negate misconduct.
- Any authorization for lawyers to use deceptive investigative techniques must be express (by rule or law), not implied from custom or asserted necessity.

## Conclusion

The court disciplined an attorney for using pretext calls that misrepresented identity and purpose, holding that Oregon’s professional rules forbid such deception in investigations and that neither Bar opinions nor constitutional arguments justified an implied exception; the appropriate sanction was a public reprimand.


In re Complaint as to the Conduct of Gatti, 8 P.3d 966 (Or. 2000)