Secret recording sparks dispute

“State law is very clear that it is criminal conduct to record a personal conversation without both parties’ consent,” he said. “This evidence is inadmissible for any purpose other than the prosecution of someone doing this.”

Kafoury said last week that he cannot comment on issues related to the upcoming trial. He declined to say whether he will use the tape made by Brenda Allen, an employee at

MCMC and sex abuse victim of Dr. Frederick Field, a former anesthesiologist.

After receiving information from both sides, the Oregon State Bar Association determined there was no probable cause to believe Kafoury and McDougal had committed misconduct at the first trial.

In documentation provided to the Bar, Kafoury accused Nisley of seeking disciplinary action out of an ongoing “desire to protect the hospital from criminal and civil liability.”

He said Nisley and Leslie Wolf, the chief deputy district attorney who handled the criminal case against Field, had family members serving on the hospital board. He said Nisley made public statements “exonerating” the hospital from blame following Field’s arrest and testified for the defense at trial.

Kafoury said Nisley “used every imaginable excuse and tactic” to delay release of police reports that were necessary to prepare for the first civil trial. As another example of bias, he noted that Nisley did not accuse the hospital’s legal team of violating the law for using the tape in their defense strategy.

“Finally, while the hospital faces additional civil trials, he has made the present accusations against our firm to the Oregon State Bar,” wrote Kafoury in a May 6 letter.

Last week, Nisley addressed the accusations of bias made by Kafoury.

“People who believe in conspiracy theories believe no matter how ridiculous they are,” he said. “This is a small town and it is not unusual to have people from the same family step up and contribute to the community by serving in a volunteer capacity with a board or organization. My father-in-law happens to be one of those people.”

Allen was the first woman to file accusations of sexual abuse against Field with The Dalles Police Department in 2011. Several weeks later, she got him to admit in a telephone conversation recorded by a detective that he had molested her while she was sedated following a 2007 surgery.

Field, 49, was convicted in 2012 of 11 counts of sex abuse and one of rape. He is serving a 23-year sentence for crimes that were committed while his victims were rendered helpless by medication.

Mary Cooper, assistant disciplinary counsel for the Bar, wrote in an Aug. 11 letter to Nisley that unethical behavior could only be assigned by criminal acts that “reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

She noted that Allen’s tape was accepted into evidence by Judge Paul Crowley. And that the defense team referred to the tape as “miraculous” because it showed Duane Francis, chief executive officer for MCMC and, Diane Storby, vice-president of operations, as empathetic and supportive of Allen.

“Mssrs. Kafoury’s and McDougal’s mental state was at most negligent. They did not know that a statute prohibited them from using the tape. Apparently no other lawyer in the courtroom — including the judge — knew it either. No one objected to the tape and everybody used or attempted to use it,” wrote Cooper.

An inquiry into Kafoury and McDougal’s conduct was initiated after Nisley provided the bar association with a copy of his April 14 warning letter sent to the Portland lawyers.

Nisley told the bar association after reviewing Kafoury’s comments that there should be higher standards than, “golly I didn’t know it was illegal, and besides, no one else said anything when I offered it into evidence.”

“It is outrageous that Mr. Kafoury actually suggests ignorance of the law as a justification for this conduct,” he stated in a May 23 letter.

Allen testified last year that she had secretly taped her meeting with Francis and Storby at the office of hospital attorney, Jim Habberstad, in The Dalles.

Her stated motivation for taking that action was to replay the discussion later for her husband, who was unable to be present.

Kafoury told the Bar that the tape was important “because it reflected Francis’ attempt to intimidate Allen and keep her from going to police.”

The hospital, Francis and Storby will be represented at the upcoming trial by Robert Keating and Peter Eidenberg, who both practice out of Portland, and Andrew Efaw of Colorado.

Efaw argued last year that Francis could be heard urging Allen four different times to file a police report, and offering her other support.

Kafoury argued that Allen had sought his legal advice in 2011 and, again, in the days preceding the trial, where she was a witness and not a litigant.

He said any information Allen gave him about the recording was legally protected by the attorney-client confidentiality privilege.

He said Crowley had confirmed as much during the 2013 trial.

Allen’s husband reported to police in 2011 that he had made a recording but believed it had been erased.

Kafoury said he learned of the existence of the tape by reading police reports in 2012 that were also provided to the defense. He later learned from Allen in a protected conversation that the recording had not been destroyed.

In the upcoming trial, Kafoury and McDougal will be representing Ashley Hovde of Hood River and Julie Davis-Garcia of The Dalles, as well as two other women who have asked to have their names withheld. The Chronicle granted that request because it is consistent with the policy of not publishing the names of crime victims.

Several of the women involved in Field’s criminal case have settled out of court with MCMC for an undisclosed amount of money. Last fall, three of Field’s victims were awarded a total of $2.4 million in compensatory damages by a jury.

Their bid to have Francis and Storby held personally liable for negligence, or to have the hospital pay punitive damages, failed to gain traction with jurors.

Nisley asked the Wasco County Sheriff’s office to investigate use of the recording after a complaint against Allen was filed by Habberstad, according to bar association records.

Although detectives determined that Allen had violated by taping the conversation, Nisley did not pursue prosecution of her, Kafoury or McDougal.