concurring in part and dissenting in part.
I agree with the majority that the accused’s telephone call to the arbitrator did not constitute an ex parte communication in violation of DR 7-110(B). I also agree that the Bar failed to prove by clear and convincing evidence that the accused’s statement that he had tried to speak with Toran before he telephoned the arbitrator was a misrepresentation. I would hold, however, that the accused misrepresented the arbitrator’s ruling in his April 22, 2004, letter to Toran.
The day before a scheduled arbitration hearing, the accused called the arbitrator to ask whether the arbitrator, as a general matter, permitted witnesses to testify by telephone. According to the accused, the arbitrator responded, “[I]t’s okay with me if it’s okay with [opposing counsel].”
The accused then faxed a letter to Toran telling her that two witnesses whom he had subpoenaed would not be able to attend the scheduled hearing but that they would be available to testify by telephone. He added:
“I have contact telephone numbers for each of these witnesses and intend to present their testimony by speaker phone. I have cleared this with the arbitrator who asked me in turn to advise you of these developments. Please call if there are questions.”
*153It is worth noting that, in reporting his conversation with the arbitrator, the accused did not say that the arbitrator would permit the two witnesses to testify if Toran would agree to that procedure. Rather, he said, “I * * * intend to present their testimony by speaker phone” and “I have cleared this with the arbitrator who asked me in turn to advise you of these developments.” The accused thus omitted the condition that the arbitrator explicitly had placed on the use of telephonic testimony, and his use of the verb “cleared” implied an approval that the arbitrator never gave. Moreover, stating that the arbitrator had “asked [the accused] * * * to advise [Toran] of these developments” implies that the accused was accurately reporting what the arbitrator had ruled — something, it turns out, that the accused did not do.
DR 1-102(A)(3) provides that “[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct involving * * * misrepresentation.” To establish that the accused made a misrepresentation, the Bar must prove by clear and convincing evidence that the misrepresentation was “knowing, false, and material in the sense that the misrepresentation] would or could significantly influence the hearer’s decision-making process.” In re Eadie, 333 Or 42, 53, 36 P3d 468 (2001). A lawyer makes a misrepresentation “either when the lawyer makes an affirmative false statement or when the lawyer remains silent despite having a duty to speak.” In re Lawrence, 337 Or 450, 464, 98 P3d 366 (2004).
The question whether the accused misrepresented the arbitrator’s ruling turns initially on the message that his letter to Toran conveyed. In that letter, the accused began by saying, “I * * * intend to present [two witnesses’s] testimony by speaker phone.” The use of the verb “intend” implies a present intent to present the witnesses’s testimony by telephone, not one that is conditioned either on Toran’s agreement or on some future ruling by the arbitrator. The accused then added, “I have cleared this [i.e., his intent to use telephonic testimony] with the arbitrator.” In context, the accused’s use of the word “cleared” implies that the arbitrator had approved the accused’s intent of having the two witnesses testify by telephone. Equally telling is what the accused failed to mention. The accused did not say that the arbitrator would permit the witnesses to testify by telephone *154only if Toran would agree with that procedure. The letter omits any mention of the condition that the arbitrator explicitly placed on the use of telephonic testimony.
The majority notes that it is possible to read the letter differently. It explains that “the letter fairly stated the accused’s intention to offer some witness testimony by speaker telephone and that the arbitrator had no problem with that procedure.” That reading gives too little weight to the ordinary meaning of the word “cleared” and fails to take account of the accused’s omission of the specific condition that the arbitrator had placed on the use of telephonic testimony: The arbitrator said that the procedure would be permissible only if Toran approved.
This court has explained that “ ‘[a] person must be able to trust a lawyer’s word as the lawyer should expect [the lawyer’s] word to be understood, without having to search for equivocation, hidden meanings, deliberate half-truths or camouflaged escape hatches.’ ” Lawrence, 337 Or at 466 (quoting In re Hiller, 298 Or 526, 534, 694 P2d 540 (1985) (brackets in original; emphasis added)). Taking the accused at his word, I would find his message unmistakable: His letter conveyed the message that the arbitrator had approved permitting the two witnesses to testify by telephone and had placed no conditions on the use of their telephonic testimony. Neither part of that message turned out to be true.
The majority reasons, however, that the omission of “express notice in the letter that Toran could object if she so desired is immaterial” because Toran was aware that she could object. With respect, that reasoning misses the mark. The point is not that Toran knew that she could lodge an objection to the arbitrator’s ruling. Rather, the point is that the arbitrator said that he would not rule that the accused could use telephonic testimony unless Toran agreed. The difference between those two propositions is material, as is the accused’s omission of the express condition that the arbitrator placed on the use of telephonic testimony. In relaying what the arbitrator had ruled, the accused should expect to be taken at his word “ ‘without [opposing counsel’s] having to *155search for equivocation, hidden meanings, deliberate half-truths or camouflaged escape hatches.’ ” See id. (holding lawyers to that standard).
I would find that the accused acted knowingly. He knew that the arbitrator had conditioned use of telephonic testimony on Toran’s approval, but that is not what he said in his letter to Toran. Finally, I would hold that the misstatement was material. Materiality does not turn on whether a statement in fact affected the hearer’s decision-making practice; rather, it turns on whether it could have done so. Eadie, 333 Or at 53. It is true that the accused’s letter did not dissuade Toran from asking the arbitrator to “disallow the testimony of these witnesses by telephone.”1 But it could have dissuaded her, and that is sufficient to establish materiality.
I would hold that the accused misrepresented the arbitrator’s ruling to Toran in violation of DR 1-102(A)(3). Accordingly, I respectfully dissent from that part of the majority’s decision.
Gillette and Balmer, JJ., join in this opinion.Toran testified that she understood from the accused’s letter that the arbitrator had ruled that the witnesses could testify by telephone. Her use of the word “disallow” in her letter to the arbitrator is consistent with that testimony.