Frederic E. Cann Publicly Reprimanded for RPC 1.7(a)(1) Violation

IN THE SUPREME COURT OF THE STATE OF OREGON In re: the Conduct of ) ) FREDERIC E. CANN, Bar No. 781604 ) Case No. 23-323 ) Respondent. )

Counsel for the Bar: Alison F. Wilkinson Counsel for the Respondent: Rachel Frances O’Neal Disciplinary Board: Mark A. Turner, Adjudicator Disposition: Violation of RPC 1.7(a)(1). Stipulation for discipline. Public reprimand. Effective Date of Order: January 31, 2025 ORDER APPROVING STIPULATION FOR DISCIPLINE This matter having been heard upon the Stipulation for Discipline entered into by Frederic E. Cann (Respondent) and the Oregon State Bar, and good cause appearing, IT IS HEREBY ORDERED that the stipulation between the parties is approved and Respondent is publicly reprimanded for violation of RPC 1.7(a)(1). DATED this 31st day of January, 2025. /s/ Mark A. Turner Mark A. Turner Adjudicator, Disciplinary Board STIPULATION FOR DISCIPLINE Frederic E. Cann, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).

The Bar was created and exists by virtue of the laws of the State of Oregon and is, and at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9, relating to the discipline of attorneys.

Respondent was admitted by the Oregon Supreme Court to the practice of law in Oregon on September 18, 1978, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon.

Respondent enters into this Stipulation for Discipline freely, voluntarily, and with the advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of Procedure 3.6(h).

On December 9, 2023, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of RPC 1.7(a)(1) of the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth relevant facts, all violations and the agreed-upon sanction as a final disposition of this proceeding. Facts

In April 2019, Wife and Husband retained Respondent to file immigration paperwork based on her marriage to Husband. As part of this representation, Respondent filed notices of representation for both Husband and wife, a petition to approve the validity of Husband’s marriage to Wife, and a petition to adjust Wife’s immigration status to that of legal permanent resident.

In September 2021, Respondent’s staff at his immigration practice renewed Wife’s work authorization.

Respondent has not withdrawn from representation of Husband or Wife in their immigration petitions, and remained their attorney as of March 21, 2022.

On November 19, 2021, Husband retained Respondent to divorce his Wife. Respondent did not run a conflict check prior to accepting this representation, which he believed would be by consent.

In January 2022, it became clear to Respondent that the divorce would not proceed by consent. On January 4, 2022, Respondent filed the dissolution petition on Husband’s behalf. Wife came to Respondent’s office to review the paperwork, picked it up, and left.

In February 2022, Respondent recalled he was representing both Husband and Wife in their immigration matters, but continued to represent Husband in the dissolution proceeding.

Wife initiated a Family Abuse Prevention Act (FAPA) proceeding in December 2021, in which Respondent was not originally involved, but learned of from Husband in February 2022. Respondent and Husband met on February 24, 2022, and Respondent prepared a withdrawal of Husband’s request for a hearing in the FAPA proceeding that day. Husband used Respondent’s OJIN account to file the withdrawal and Respondent assisted him in that due to time constraints, as the FAPA hearing was scheduled for the following day, and that Husband could not file it electronically himself. On February 25, 2022, Wife requested dismissal of the FAPA, which the court granted. Thereafter, with court approval, Respondent withdrew as Husband’s attorney in the dissolution matter. Violations

Respondent admits that, by proceeding against Wife in the dissolution matter without her consent, and appearing on behalf of Husband in the FAPA matter, while he was still Wife’s attorney in the immigration matter, he had a current client conflict of interest in violation of RPC 1.7(a)(1). Sanction

Respondent and the Bar agree that in fashioning an appropriate sanction in this case, the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions (ABA Standards). The ABA Standards require that Respondent’s conduct be analyzed by considering

the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential injury; and (4) the existence of aggravating and mitigating circumstances.

1. Duty Violated. Respondent violated his duty of loyalty to a current client.
   ABA Standard 4.3.

2. Mental State. ”Intent” is the conscious objective or purpose to accomplish a
   particular result. ABA Standards at 9. “Knowledge” is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. ABA Standards at 9. “Negligence” is the failure to be aware of a substantial risk that circumstances exist or that a result will follow and which deviates from the standard of care that a reasonable lawyer would exercise in the situation. Id. Here, Respondent was negligent in not running a conflict check before agreeing to represent Husband in a proceeding against Wife. Because of his failure to properly screen, he did not realize that he represented Wife in immigration proceedings when he agreed to represent Husband adverse to Wife in the dissolution matters and appeared on behalf of Husband in the FAPA matter. Accordingly, Respondent’s mental state was that of negligence.

3. Injury. Injury can be either actual or potential under the Standards. In re
   Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Actual injury resulted from Respondent’s representation of both Husband and Wife in the immigration proceeding, and Husband in the dissolution proceeding. Wife was confused and alarmed that her attorney in the immigration proceeding was now proceeding against her.

4. Aggravating Circumstances. Aggravating circumstances include:

5. Prior disciplinary offenses. ABA Standard 9.22(a). Respondent has one
   prior record of discipline from 2002, which included discipline for a current conflict of interest. In re Cann, 16 DB Rptr 173 (2002). In determining what weight to give to prior discipline, the following considerations apply: (1) the relative seriousness of the prior offense and resulting sanction; (2) the similarity of the prior offense to the offense in the case at Bar; (3) the number of prior offenses; (4) the relative recency of the prior offense; and (5) the timing of the current offense in relation to the prior offense and resulting sanction. In re Jones, 326 Or 195, 201, 951 P2d 149 (1997). Respondent’s prior discipline was serious, involving four rules of professional conduct and resulting in a six-month suspension. In addition,

there was some similarity between the prior offense and the current offense, in that both involved a current conflict of interest. However, the 2002 matter was Respondent’s only prior offense, and it occurred over 20 years ago. Further, the underlying conduct occurred approximately 25 years ago. Because this offense is remote, its weight as an aggravating factor is diminished. See In re Dugger, 334 Or 602, 625, 54 P3d 595, 610 (2002) (remoteness of a prior offense diminishes its weight as an aggravating factor).

1. Substantial experience in the practice of law. ABA Standard 9.22(j).
   Respondent was licensed to practice law in Oregon in 1978.

2. Mitigating Circumstances. Mitigating circumstances include:

3. Absence of a dishonest or selfish motive. ABA Standard 9.32(b).

4. Cooperative attitude toward proceedings. ABA Standard 9.32(e).
   Under the ABA Standards, public reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will materially adversely affect another client, and causes injury or potential injury to a client.

Similar cases suggest that a public reprimand is warranted. See, e.g., In re Abel, 33 DB Rptr 175 (2019) (stipulated reprimand where attorney concurrently represented husband on criminal matters that may adversely affect wife, and wife, without informed consent from either party); In re Greif, 21 DB Rptr 233 (2007) (stipulated reprimand when lawyer represented both husband and wife in divorce and assisted in negotiation of property-settlement agreement without making clear his belief he was acting as mere scrivener).

Consistent with the ABA Standards and Oregon case law, the parties agree that Respondent shall be publicly reprimanded for violation of RPC 1.7(a)(1), the sanction to be effective upon approval of this stipulation.

Respondent acknowledges that he is subject to the Ethics School requirement set forth in BR 6.4 and that a failure to complete the requirement timely under that rule may result in his suspension or the denial of his reinstatement. This requirement is in addition to any other

provision of this agreement that requires Respondent to attend continuing legal education (CLE) courses.

Respondent represents that, in addition to Oregon, he also is admitted to practice law in the jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final disposition of this proceeding. Other jurisdictions in which Respondent is admitted: Washington; U.S. District Court for Oregon; US District Court for Western District of Washington; Ninth Circuit Court of Appeals.

Approval of this Stipulation for Discipline as to substance was given by the SPRB on March 9, 2024. Approval as to form by Disciplinary Counsel is evidenced below. The parties agree the stipulation is to be submitted to the Adjudicator on behalf of the Disciplinary Board for consideration pursuant to the terms of BR 3.6. EXECUTED this 27th day of January, 2025. /s/ Frederic E. Cann Frederic E. Cann OSB No. 781604 APPROVED AS TO FORM AND CONTENT: /s/ Rachel O’Neail Rachel O’Neal, OSB No. 114810 EXECUTED this 29th day of January, 2024. OREGON STATE BAR By: /s/ Alison F. Wilkinson Alison F. Wilkinson, OSB No. 096799 Assistant Disciplinary Counsel