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Holland & Knight Holland & Knight 111 S.W. Fifth Avenue I 2300 U.S. Bancorp Tower I Portland, OR 97204 1 T 503.243.2300 I F 503.241.8014 Holland & Knight LLP I www.hklaw.com Peter R. Jarvis (503) 243-5877 [email protected] April25, 2016 Via E-mail (cao@osbar. org) Troy Woods Oregon State Bar 16037 SW Boones Ferry Road PO Box 231935 Tigard, OR 97281 Re: Arnold Law I TJW 1600600-Nerei Lopez I Jill Kolva I Catherine Lively Dear Troy: These three complaints fail to raise a legitimate or material question about any RPC violation. To begin with the question raised solely by Ms. Lively, and even if it would create an RPC violation if he had done so, Mike Arnold did not advocate bringing firearms to peaceful protests as a general proposition. Mr. Arnold also did not advocate, even in a theoretical sense, any conduct that would violate the law. All he did was identify what he called "Reason Number 1" why someone might wish to do so: Reason Number 1 to bring your firearms to a peaceful protest (so long as you are protesting the government from the "right"): An elected government official threatens you if you attempt to exercise your First Amendment right to assembly. This comment appeared right above an article entitled "COUNTY COMMISSIONER SAYS BUNDY SUPPORTERS 'BETTER HAVE FUNERAL PLANS."' As reported, among other places, in the Las Vegas Review-Journal (which describes itself as "the most reliable source for Las Vegas news") in April2014: It started when Darin Bushman, a Piute County, Utah, commissioner, called [Clark County Commissioner Tom] Collins about the Bureau of Land Management roundup of [Cliven] Bundy's cattle in the Gold Butte area, about 80 miles northeast of Las Vegas. The cattle are being seized after Bundy failed to pay grazing fees over 20 years. When the conversation ended, Bushman posted on Facebook that Collins said Utahans are "inbred bastards" and if they come to Clark County to Anchorage 1 Atlanta 1 Austin 1 Boston 1 Chicago 1 Dallas 1 Denver 1 Fort Lauderdale 1 Jacksonville 1 Lakeland 1 Los Angeles 1 Miami New York 1 Northern Virginia I Orlando 1 Portland 1 San Francisco 1 Tallahassee 1 Tampa 1 Washington, D.C. 1 West Palm Beach Troy Woods April25, 2016 Page 2 support Bundy they "better have funeral plans." Collins also told Bushman that they should mind their "own (expletive) business."1 Whatever Mr. Collins actually said or meant to say, it is not impermissible speech by a lawyer or non-lawyer to say that one reason individuals might choose to carry guns is if they believed they were threatened with violence by the government. Ironically, there was even a petition to allow guns to be carried at the 2016 Republican National Convention until the Secret Service said "no."2 Beyond this obvious non-issue, all three complainants assert that by asking members of the public to obtain and provide information from government agencies, Mr. Arnold has violated RPC 4.4(a), which states in part that "In representing a client*** a lawyer shall not use means that have no substantial purpose other than to ***harass*** a third person." According to the complainants, this rule has been violated because Mr. Arnold is attempting to "swamp" (Ms. Kolva) or create a "frivolously burden" (Ms. Lopez) on government agencies or is "using third parties to harass government personnel and elected officials both statewide, and nationally" (Ms. Lively). There is, of course, nothing wrong with petitioning one's government for redress of grievances or encouraging others to do so. That is core and constitutionally protected free speech that neither the State nor the Bar can prohibit. See, e.g., State v. Johnson, 345 Or 190, 191 P3d 665 (2008). Beyond this, however, and no less fundamentally, the complainants misunderstand both the purpose and effect of Mr. Arnold's efforts. Mr. Arnold is defending Ammon Bundy, a broadly unpopular client, against the full weight of the United States in cases that are simultaneously pending in Oregon and Nevada. The resources that the United States can use to build its cases against Mr. Bundy far exceed those available to Mr. Arnold. Mr. Arnold has therefore chosen to seek a degree of public ideas and assistance in getting documents that might be helpful to the defense. Thus, his AprillO, 2016 post at 9:10pm (attached to the Lively complaint) asks interested individuals to "Be creative. Come up with some good things to request. Then review what you receive and share anything that is interesting." In this same post, he also asks individuals who are willing to assist to "Be nice. Be cordial. Treat others as you want to be treated. But be persistent." And Mr. Arnold's "Crowdsourcing ACTION ALERT," (referenced by all three complaints) begins by asking interested individuals to do "an Oregon public records request to the Oregon State Police for all" documents of certain types but then goes on to note that individuals who do so will need to "review the materials for relevant information," after which Mr. Arnold added that the individuals who do so should "Always follow the Golden Rule when dealing with anyone. Be polite but be persistent." Mr. Arnold believed then and believes today that others may have ideas about where pertinent documents may exist, 1 Ben Botkin, "Clark County Commissioner Tom Collins is drawing fire after his comments on the Bundy roundup," Las Vegas-Review-Journal (AprillO, 2014, updated April11, 2014), accessed April24, 2016. http: //www. review j ourna I. com/news/water-environment/co II in s-man ages-insult- utah ns- comments-bundv-roundup 2 Mike McPhate, "No Guns Allowed at the Republican Convention, Secret Service Says," New York Times (March 29, 20 16), accessed April 22, 2016. http://www:nytimes.com/20 16/03/30/us/politics/secret-service-ban.s-guns-at­ ggp-convention-ending-debate.html #40800158_v2 Troy Woods April25, 2016 Page 3 what kinds of pertinent documents may exist and how best to get or ask for them that exceed what Mr. Arnold and his colleagues may be able to do on their own for Mr. Bundy. In his own words, then, Mr. Arnold's objective was to encourage interested individuals to help him obtain documents that might assist in his defense of Mr. Bundy by using their own "creative" and "polite" (if also "persistent") "requests" and then sharing what they found and believed to be "relevant." This kind of calling upon interested members of the public for information or assistance is something that both prosecutors and defense lawyers have long done and will no doubt continue to do. The only difference here from long-ago practices is that Mr. Arnold has used social networking as a means of information-seeking. Moreover, it is incorrect to say that when it comes to public records requests, there is no such thing as strength in numbers. In the universe of public records requests, it sometimes does seem to help dislodge records if multiple individuals request them. Indeed, if the government or ultimately a court has to decide whether any of the records requested under the Oregon Public Records Law are exempt from disclosure, then a statutory balancing test that takes account of the "public interest" would apply to any conditional exemption under ORS 192.501 and to certain categorical exemptions claimed under ORS 192.502. See generally Oregon Attorney General's Public Records and Meetings Manual at 29-31 (Nov. 2014) (describing the "public interest" factor in the statutory balancing test). Any such consideration of the "public interest" takes into account the extent to which the matter is one of public importance, including that a number of citizens are seeking the information, and the purpose for which it is sought, which is here to maximize the potential for finding useful information by multiple individuals requesting, receiving and reviewing documents. Beyond this, the contention that Mr. Arnold could or might have hoped to swamp the state or federal government is an absolutely necessary part of any "substantial purpose" case against Mr. Arnold but is also absurd. Mr. Arnold's purpose was to gather information to help him defend his client.3 Mr. Arnold expected at all times that the likely number of responses to his requests would be sma11. 4 He also knew that if a government receives multiple identical requests, it can post documents on line with little to no cost or time involved or can make a packet of documents to be copied and sent to all who request them. It also does not appear that any governmental officials have thus far asserted that they have gotten any toes wet, let alone been swamped, by document requests ostensibly emanating from Mr. Arnold's communications. Moreover, the objective was not to harass the government with requests but rather to submit requests that would generate disclosure of government documents for review. 3 Even if Mr. Arnold could somehow be said to have had both a "good" and a "bad" substantial purpose, such a dual purpose situation would not violate RPC 4.4(a). This is clear from the "no substantial purpose" language. See also, Welch v. Bancorp Management Advisers, 296 Or 208, 675 P2d 172 (1983). 4 To date, Mr. Arnold has received one offer of assistance and no documents. #40800158_v2 Troy Woods April25, 2016 Page 4 In short, these complaints, along with the others that are presently pending before you, should be summarily dismissed. If my client or I can provide you with any additional information, please let me know.
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