2021 Oregon Attorney Disciplinary Decisions

DISCIPLINARY BOARD REPORTER

Report of Lawyer Discipline Cases Decided by the Disciplinary Board and by the Oregon Supreme Court for 2021

VOLUME 35

January 1, 2021, to December 31, 2021

PREFACE

This Disciplinary Board Reporter (DB Reporter) contains final decisions of the Oregon Disciplinary Board, stipulations for discipline between accused lawyers and the OSB, summaries of 2021 decisions of the Oregon Supreme Court involving the discipline of lawyers, and related matters. Cases in this DB Reporter should be cited as 35 DB Rptr ___ (2021). In 2021, a decision of the Disciplinary Board was final if neither the Bar nor the Respondent sought review of the decision by the Oregon Supreme Court. See Title 10 of the Bar Rules of Procedure (www.osbar.org, click on Rules Regulations and Policies) and ORS 9.536. The decisions printed in this DB Reporter have been reformatted and corrected for typographical errors, spelling errors, obvious grammatical or word usage errors, and citation errors, but no substantive changes have been made to them. Because of space restrictions, exhibits are not included but may be obtained by calling the Oregon State Bar. Those interested in a verbatim copy of an opinion should submit a public records request to the Public Records Coordinator at. Final decisions of the Disciplinary Board issued on or after January 1, 2016, are also available at the Oregon State Bar website, www.osbar.org. Please note that the statutes, disciplinary rules, and rules of procedure cited in the opinions are those in existence when the opinions were issued. Care should be taken to locate the current language of a statute or rule sought to be relied on concerning a new matter. General questions concerning the Bar's disciplinary process may be directed to me at extension 318. COURTNEY DIPPEL Disciplinary Counsel Oregon State Bar

CONTENTS Oregon Supreme Court, Board of Governors,

State Professional Responsibility Board ............................................................ iv

Disciplinary Board

2022 ........................................................................................................... v

2021 .......................................................................................................... vi

List of Cases Reported in This Volume ............................................................. vii

Cases ............................................................................................................ 1-208

Justices of the Oregon Supreme Court

Martha Lee Walters, Chief Justice Thomas A. Balmer Lynn R. Nakamoto Meagan A. Flynn Rebecca A. Duncan Adrienne C. Nelson Christopher L. Garrett

2022 Oregon State Bar Board of Governors

David Wade, Immediate Past-President Kamron Graham, President Lee Ann Donaldson, President-Elect Chris Cauble Gabriel Chase Candace Clarke, Public Member Jenny Cooke Katherine Denning Stephanie Engelsman Bik-Na Han Joseph Hesbrook, Public Member Ryan Hunt Myah Kehoe Matthew McKean Rob Milesnick Apolinar Montero-Sánchez Curtis Peterson, Public Member Joseph Piucci David M. Rosen Tasha Winkler, Public Member Helen Hierschbiel, Chief Executive Officer

2021 State Professional Responsibility Board

Todd H. Grover, Chairperson Harry Michael Auerbach Joel C. Benton David L. Carlson Erin A. Fennerty Mary Moffit, Public Member Zena Polly, Public Member Joshua L. Ross Thanh H. Tran Lauren E. Walchli Curtis Peterson, BOG Contact iv

2022 DISCIPLINARY BOARD

David F. Doughman Richard C. Josephson Samuel C. Kauffman Region 1

Ronald L. Roome, Chairperson Michael Thomas McGrath Elizabeth A. Dickson Jonathan W. Monson W. Eugene Hallman Charles J. Paternoster Paul B. Heatherman Willa B. Perlmutter John E. Laherty Christopher R.Piekarski Michael H. McGean S. Michael Rose Courtney L. Quale-Conrad Andrew M. Schpak Larry Lehman, Public Member Krista S. Stearns Greg Sackos, Public Member Frank J. Weiss Region 2 Anne Kate Wilkinson Hon. Frank R. Alley, Chairperson Clark Haass, Public Member Bryan Boender

Vanessa L. Crakes Charles H. Martin, Public Member Emily Sarah Hill Chas Horner Michael J. Patterson, Public Member George A. McCully, Public Member Melanie Timmins, Public Member Mitchell P. Rogers, Public Member Charlie Van Rossen, Public Member Natasha Voloshina, Public Member Region 3

Faith Marie Morse, Chairperson Region 6 Kelly L. Andersen John L. Barlow, Chairperson John E. Davis

Christine Kantas Herbert Robert C. McCann Marlene R. Yesquen Micah S. Moskowitz Burl A. Baker, Public Member Lorena M. Reynolds Thomas Pyle, Public Member Yvonne Ana Tamayo Theresa Wright Region 4 Fadd E. Beyrouty, Public Member Hon. Jill A. Tanner, Chairperson

Gary Allen Kanz, Public Member Guy B. Greco Erin K. Lufkin Arnold S. Polk Region 7 Sandra L. Frederiksen, Public Member Andrew M. Cole, Chairperson Karina M. Grigorian, Public Member Tom Kranovich Joan Ploem Miller, Public Member Susan K. Lain

Kathleen J. Rastetter Region 5 Tawnya Stiles-Johnson Susan T. Alterman, Chairperson Eugene L. Bentley, Public Member Amy E. Bilyeu Cynthia V. Lopez, Public Member

2021 DISCIPLINARY BOARD

Amy E. Bilyeu David F. Doughman Ankur Doshi Region 1 Richard C. Josephson Ronald L. Roome, Chairperson Samuel C. Kauffman Elizabeth A. Dickson

1. Eugene Hallman Michael Thomas McGrath Paul B. Heatherman Jonathan W. Monson John E. Laherty Charles J. Paternoster Danielle Lordi S. Michael Rose Michael H. McGean Andrew M. Schpak Larry Lehman, Public Member Krista S. Stearns Region 2 Frank J. Weiss Hon. Frank R. Alley, Chairperson Trevor I. Briede, Public Member Bryan Boender Vanessa L. Crakes Charles H. Martin, Public Member Chas Horner George A. McCully, Public Member Michael J. Patterson, Public Member Mitchell P. Rogers, Public Member Charlie Van Rossen, Public Member Natasha Voloshina, Public Member Region 3

Faith Marie Morse, Chairperson Region 6 Kelly L. Andersen John L. Barlow, Chairperson John E. Davis

Christine Kantas Herbert Robert C. McCann Marlene R. Yesquen Micah S. Moskowitz Burl A. Baker, Public Member Lorena M. Reynolds Thomas Pyle, Public Member Yvonne Ana Tamayo Fadd E. Beyrouty, Public Member Region 4

Hon. Jill A. Tanner, Chairperson Gary Allen Kanz, Public Member Erin K. Lufkin Arnold S. Polk James Alfred Underwood Region 7 Sandra L. Frederiksen, Public Member Andrew M. Cole, Chairperson Karina M. Grigorian, Public Member Tom Kranovich

Kathleen J. Rastetter Region 5 Tawnya Stiles-Johnson Susan T. Alterman, Chairperson Eugene L. Bentley, Public Member

Cynthia V. Lopez, Public Member Jacqueline Lizeth Alarcon

LIST OF CASES REPORTED

Volume 35 DB Reporter

(Includes summaries of Oregon Supreme Court stipulations and decisions that also appear in the Advance Sheets)

In re Acharya, 35 DB Rptr 49(2021) .............................................................................................49

Violation of RPC 8.4(a)(2). Reciprocal Discipline. Public reprimand.

In re Alway, 35 DB Rptr 1 (2021)....................................................................................................1

Violation of RPC 1.4(a) and RPC 5.3(a). Trial Panel Opinion. Public reprimand.

In re Alway, 35 DB Rptr 170 (2021)............................................................................................170

Violation of RPC 1.5(a), RPC 4.2(a), RPC 7.1, and RPC 7.5(a). Stipulation for Discipline. Public reprimand.

In re Ard, 35 DB Rptr 208 (2021)................................................................................................208

Violation of RPC 8.4(a)(4). 1-year suspension.

In re Bassett, 35 DB Rptr 194 (2021) ..........................................................................................194

Violation of RPC 1.8(a). Trial Panel Opinion. Public reprimand.

In re Carter, 35 DB Rptr 81 (2021) ...............................................................................................81

Violation of RPC 5.5(a) and ORS 9.160(1). Stipulation for Discipline. Public reprimand.

In re Celuch, 35 DB Rptr 28 (2021) ..............................................................................................28

Violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d). Stipulation for Discipline. 60-day suspension.

In re Clark, 35 DB Rptr 53 (2021) ................................................................................................53

Violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), and RPC 8.4(a)(3). Stipulation for Discipline. 180-day suspension, 90-days stayed, 2-year probation.

In re Coleman, 35 DB Rptr 63 (2021) ...........................................................................................63

Violation of RPC 1.3 and RPC 1.4(a). Stipulation for Discipline. Public reprimand. vii

In re Conry, 35 DB Rptr 71 (2021)................................................................................................71

Violation of RPC 1.6. Public reprimand.

In re Gassner, 35 DB Rptr 13 (2021) ............................................................................................13

Violation of RPC 1.15-1(a), RPC 1,15-1(c), and RPC 5.3(a). Stipulation for Discipline. 180-day suspension, all stayed, 2-year probation.

In re Giorgetti, 35 DB Rptr 112 (2021) .......................................................................................112

Violation of RPC 4.2. Stipulation for Discipline. Public reprimand.

In re Graeff, 35 DB Rptr 40 (2021) ...............................................................................................40

Violation of RPC 8.4(a)(2), RPC 1.4(a), and RPC 1.4(b). 5-year suspension.

In re Hale, 35 DB Rptr 48 (2021) ..................................................................................................48

Violation of RPC 1.5(a), RPC 5.3(a), and RPC 5.3(b). Reciprocal Discipline.

In re Hoover, 35 DB Rptr 39 (2021)..............................................................................................39

Violation of RPC 1.3, RPC 1.4(a), and RPC 1.4(b). Reciprocal Discipline. 30-day suspension.

In re Huffman, 35 DB Rptr 128 (2021)........................................................................................128

Violation of RPC 1.3, RPC 1.6(a), RPC 1.16(a)(1), RPC 8.1(a)(2), RPC 8.1(c), and RPC 8.4(a)(4). Stipulation for Discipline. 181-day suspension with formal reinstatement.

In re Igbokwe, 35 DB Rptr 180 (2021) ........................................................................................180

Violation of RPC 1.16(c), RPC 1.16(d), RPC 3.3(a)(1), RPC 8.4(a)(2), and RPC 8.4(a)(3). Stipulation for Discipline. 10-month suspension.

In re Jaffe, 35 DB Rptr 22 (2021) ..................................................................................................22

Violation of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.8(a), RPC 1.15-1(a), RPC 1.15-1(c). Stipulation for Discipline. 120-day suspension.

In re Kimmell, 35 DB Rptr 123 (2021) ........................................................................................123

Violation of RPC 1.9(a). Stipulation for Discipline. Public reprimand.

In re Larson, 35 DB Rptr 175 (2021) ..........................................................................................175

Violation of RPC 1.15-1(e). Stipulation for Discipline. Public reprimand. viii

In re Ledesma, 35 DB Rptr 188 (2021) .......................................................................................188

Violation of RPC 1.15-1(d) and RPC 1.16(d). Trial Panel Opinion. 30-day suspension.

In re Long, 35 DB Rptr 72 (2021) .................................................................................................72

50 violations of the RPCs. Disbarred.

In re Luisi, 35 DB Rptr 34 (2021)..................................................................................................34

Violation of RPC 4.2. Stipulation for Discipline. Public Reprimand.

In re Molligan, 35 DB Rptr 73 (2021) ...........................................................................................73

Violation of RPC 1.4(a), RPC 1.15-1(a), RPC 1.16(c), RPC 1.16(d), RPC 8.1(c)(4), and RPC 8.4(a)(4). Stipulation for discipline. 120-day suspension.

In re Parks, 35 DB Rptr 86 (2021) ................................................................................................86

Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.16(d), and RPC 8.1(a)(1). Trial Panel Opinion. 240-day suspension.

In re Sanchez, 35 DB Rptr 11 (2021) ............................................................................................11

Violation of RPC 1.3, RPC 1.4(a), and RPC 5.3(a). Order Imposing Reciprocal Discipline. 1-year suspension.

In re Schaefer, 35 DB Rptr 67 (2021)............................................................................................67

Order revoking probation and imposing stayed suspension. 60-day suspension.

In re Slayton, 35 DB Rptr 143 (2021)..........................................................................................143

Violation of RPC 1.2(a), RPC 1.3, RPC 1.4(a), RPC 1.6(a), RPC 1.9(c)(1), RPC 3.3(a)(1), and RPC 8.4(a)(4). Order granting dismissal of appeal and imposing Trial Panel Opinion. 18-month suspension.

In re Slythe, 35 DB Rptr 137 (2021) ............................................................................................137

Violation of RPC 1.3, RPC 1.5(c)(3), RPC 1.15-1(c), RPC 1.15-1(d), and RPC 7.1. Stipulation for Discipline. 30-day suspension.

In re Smith-Koop, 35 DB Rptr 99 (2021) ......................................................................................99

No violation of RPC 1.7(a)(2). Trial Panel Opinion. Dismissal.

In re Snee, 35 DB Rptr 42 (2021) ..................................................................................................42

Violation of RPC 1.15-1(d) and RPC 1.16(d). Stipulation for Discipline. Public reprimand. ix

In re Sterner, 35 DB Rptr 117 (2021) ..........................................................................................117

Violation of RPC 1.1, RPC 1.3, and RPC 8.4(a)(4). Stipulation for Discipline. 60-day

In re Vernon, 35 DB Rptr 107 (2021) ..........................................................................................107

Violation of RPC 1.3. Stipulation for Discipline. 180-day suspension.

In re: ) ) Complaint as to the Conduct of ) Case No. 19-96 ) RICHARD F. ALWAY, ) ) Counsel for the Bar: Rebecca Salwin and Martha Hicks Counsel for the Respondent: Jason E. Thompson Micah Moskowitz Disposition: Violation of RPC 1.4(a) and RPC 5.3(a). Trial Panel Opinion. Public reprimand. Effective Date of Opinion: January 22, 2021 The Oregon State Bar (Bar) charged respondent Richard F. Alway with violation of RPC 5.3(a) (failure to supervise non-lawyer personnel), RPC 1.4(a) (failure to keep a client reasonably informed), and RPC 1.4(b) (failure to explain sufficiently to allow client to make an informed decision). The Bar asked us to issue a public reprimand as the appropriate sanction. The charges arose when a legal assistant in respondent's office neglected to docket entry of a judgment in a family law matter. That oversight meant respondent failed to file an attorney fee petition in the case. When the client subsequently inquired about the status of the fee petition, the employee falsely told her that it had been filed. The employee misled the client for an extended period of time. She never told respondent about the situation or the client inquiries. The client complained to the Bar. The Bar sent letters to respondent inquiring about the complaint, but the employee received the letters, never told respondent of the investigation, and instead tried to explain the situation away herself. Respondent finally learned of the situation when he received a certified letter from Disciplinary Counsel's Office (DCO) at his home. Respondent blamed the situation on his employee's conduct. Trial took place by videoconference on September 29 and 30, 2020. The trial panel consisted of the Adjudicator, Mark A. Turner, attorney member Micah Moskowitz, and public member Sylvia Rasko. The Bar appeared through counsel, Rebecca Salwin and Martha Hicks. Respondent appeared and was represented by counsel, Jason E. Thompson. As discussed below, after considering the evidence and argument offered at trial, we conclude that the Bar proved the alleged violations of RPC 5.3(a) and RPC 1.4(a) by clear and 1

convincing evidence. We find that the Bar failed to prove a violation of RPC 1.4(b). We publicly reprimand respondent. FACTS Respondent hired Melissa Wagers in November 2016 to be a legal assistant in his solo practice. She had no law office work experience. She initially worked alongside respondent's paralegal, Jan McElroy, who had worked with respondent for decades. Wagers's conduct is directly at issue in this case. Neither side called her to testify. The Bar claimed that the only formal training Wagers received from respondent was on the mechanics of e-filing. Respondent and McElroy testified at trial that the training was more extensive. Tr. 164-67. Wagers also received the office's employee handbook that had policies and procedures in place for handling cases and communicating with clients. Ex. 104. Wagers and McElroy fielded all incoming phone calls and screened all emails at the office's main email address, info@alwaylaw.com, and received and opened the mail. They used their judgment in deciding which communications to handle themselves and which to forward to respondent. Respondent testified that he always gave new clients one of his business cards that had his personal office email address, so that clients could reach him directly if they wished. Tr. 123. McElroy experienced health problems and began reducing her workload in 2017. She stopped coming into the office in early 2018, although she was available from home if Wagers needed to speak with her. She stopped working altogether in May of 2018. Wagers's duties increased. The Bar argued that respondent provided her with no additional training or supervision at this time. McElroy testified that Wagers was adequately trained to handle her duties. Tr. 164-67. During this period respondent represented client Angela Alcantar in a parenting time modification matter initiated by her ex-husband. After trial in August 2017, respondent prepared a proposed judgment, which included a statement that fees were awarded pursuant to ORCP 68. At respondent's instruction, Wagers served the draft on the ex-husband and then filed the judgment with the court on the appropriate schedule. The fee petition was due 14 days after entry of judgment. ORCP 68. Respondent testified that he instructed Wagers to calendar the fee petition due date once she received notice of entry of judgment. He relied on the docketing system to notify him when to file the petition. Tr. 108-09. Respondent prepared a draft of the fee petition in anticipation of filing, but work remained to be done. Wagers apparently received notice of entry of the judgment but did not calendar the due date for the fee petition. She never brought the file back to the attention of respondent. Respondent never finished or filed the fee petition and forgot about it. Respondent did not communicate directly with his client again. Id. In September 2017, March 2018, April 2018, and May 2018, Alcantar made inquiries to respondent's office about the status of the attorney fee award. Each time, Alcantar either left a message that went unreturned or spoke with Wagers, never with respondent. Wagers did not tell Alcantar that the petition had not been filed. She told Alcantar the courts were backed-up with criminal trials and that her case was not a priority. Wagers did not tell respondent about any of these calls. 2

On May 21, 2018, Alcantar sent respondent a certified letter at his office address. She asked specific questions about her situation. Wagers signed the return receipt but did not tell respondent about the letter or reply to Alcantar. On June 12, 2018, Alcantar filed a complaint with the Bar's Client Assistance Office (CAO). The CAO sent written inquiries to respondent, but Wagers received them and did not tell respondent. Instead, she responded to the inquiries in July and September 2018. CAO referred the grievance to DCO. DCO continued the investigation. Wagers also responded to DCO's inquiries from February, March, and April 2019 without telling respondent. DCO stated that it needed a response from respondent himself, but each time Wagers ignored the instruction and responded herself. DCO sent a certified letter to respondent's home address in May of 2019 that he did finally receive personally. Respondent answered DCO's inquiries himself for the first time. He told DCO that Wagers had never informed him of the communications from Alcantar or the Bar. He acknowledged that Alcantar's case was not handled properly, but he took no personal responsibility for failure to supervise Wagers or to monitor Alcantar's case. Alcantar filed a lawsuit against respondent in Marion County Circuit Court in September 2019. Respondent testified that the matter was handled by counsel retained by the Professional Liability Fund. The case settled in December 2019. After the incident respondent changed his email address on file with the Bar to be his direct work email address rather than the general office address. He implemented a new system involving a spreadsheet to track cases and tasks. Tr. 145-46. Respondent terminated Wagers in April 2020 when he learned that she used his credit card for her personal expenses. ANALYSIS OF THE CHARGES

1. Respondent violated RPC 5.3(a). RPC 5.3(a) states: "With respect to a nonlawyer employed or retained, supervised or directed by a lawyer . . . a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." The parties advised us that the Oregon Supreme Court has not interpreted RPC 5.3(a). Neither side provided us with other authority interpreting the rule. Other jurisdictions have addressed the question, however, in similar situations. Although not binding on us, the authorities we have reviewed are instructive. The most compelling case was People v Smith, 74 P3d 566 (Colorado 2003). In Smith, a Colorado lawyer was suspended for nine months for failure to supervise his legal assistant, who engaged in the unauthorized practice of law. Smith was a sole practitioner with a large volume practice, about half of which was domestic relations. His legal assistant, Ross, had worked for him for years. Smith put measures in place to assure that all communications, oral and written, were brought to his attention, and dictated how mail would be received and sorted and phone messages would be handled. Id at 568. His office procedures were similar to respondent's here. 3

Ross mishandled a divorce proceeding, and then covered it up and tried to remedy the situation by filing pleadings without respondent's knowledge and by handling communications with the client. Her conduct was eventually discovered. Smith was charged with rule violations virtually identical to those at issue here, including Colorado RPC 5.3(b), which is identical to our RPC 5.3(a). Id at 571. He was also charged with violation of Colorado RPC 5.3(a), the equivalent of which is not found in our rule. It provides that with respect to a non-lawyer employee, "a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of a lawyer. . ." As to the 5.3(a) charge under the Colorado rules, the court held that Smith had adequate measures in place that the assistant did not follow. That charge was dismissed. We are not faced with the question of whether respondent had adequate measures in place here. The analysis under our rule, as under Colorado RPC 5.3(b), is different. The Smith court noted that the focus is not on whether adequate procedures were in place but upon whether the lawyer having direct supervisory authority adequately supervises the non-lawyer employee. Id at 571-72. The court noted that Smith had delegated substantial responsibility to his assistant (as is the case for respondent here) and failed to review her work (as is also the case here). The failure to supervise adequately allowed the assistant to conceal the ongoing failures to properly handle the case. The court concluded: "A simple examination of the [client's] file would have disclosed Ross's activities and alerted Smith of the problems developing in the case." Id at 572. Smith argued that Ross's failure to inform him of the situation was the cause of the problem and he should not be held responsible. The court rejected that excuse. The court looked to The Restatement (Third) of Law Governing Lawyers, §11 (2003) concerning a lawyer's duty of supervision. It provides: 1

"Supervision is a general responsibility of a principal. . . . A . . . lawyer with

authority to direct the activities of another lawyer or nonlawyer employee of the firm is such a principal. Appropriate exercise of responsibility over those carrying out the tasks of law practice is particularly important given the duties of lawyers to protect the interests of clients and in view of the privileged powers conferred on lawyer by law. The supervisory duty, in effect, requires that such additional experience and skill be deployed in reasonably diligent fashion.

"Lack of awareness of misconduct by another person, either lawyer or non-

lawyer, under a lawyer's supervision does not excuse a violation of this Section. To ensure that supervised persons comply with professional standards, a supervisory lawyer is required to take reasonable measures, given the level and extent of responsibility that the lawyer possesses. Those measures, such as an informal program of instructing or monitoring another person, must often assume the likelihood that a particular lawyer or nonlawyer employee may not yet have received adequate preparation for carrying out that person's own responsibilities." The Oregon Supreme Court has looked to The Restatement (Third) of Law Governing 1Lawyers in disciplinary matters. See, e.g., In re Newell, 348 Or 396, 410, 234 P3d 967 (2010). 4

The court then cited a number of cases where the excuse was rejected in similar circum-stances. Id. The first was State ex rel. Oklahoma Bar Ass'n v. Braswell, 663 P2d 1228, 1231-32 (Okla 1983). The attorney there raised the same argument, claiming that losing track of the client's case may have been caused by the inaction or neglect of his law clerk. The Oklahoma Supreme Court stated, "[w]hile delegation of a task entrusted to a lawyer is not improper, it is the lawyer who must maintain a direct relationship with his client, supervise the work that is delegated and exercise complete, though indirect, professional control over the work product . . . [t]he work of lay personnel is done by them as agents of the lawyer employing them. The lawyer must supervise that work and stand responsible for its product." Id at 1231-32. The Colorado court also cited an Oregon case, In re Morin, 319 Or 547, 878 P2d 393 (1994). There the lawyer was found responsible for the unauthorized practice of law by a paralegal. The lawyer had initially warned the paralegal about such conduct, but took no further steps to enforce the instruction or to test the employee's ability to identify inappropriate activities. 2 This case is no different from Smith and the cases it cites. Although respondent here may have had adequate procedures in place, that is not the question at issue when considering the alleged violation of Oregon RPC 5.3(a). The direct supervisor of nonlawyer personnel must take affirmative steps to avoid a situation such as this where a case was neglected and a client was ignored. It is telling that respondent here even testified to engaging in additional oversight after this episode to avoid a similar occurrence in the future. Respondent did not make reasonable efforts to ensure that Wagers's conduct was compatible with his professional obligations. We find that he violated RPC 5.3(a). 3

The opinion also cites In re Bonanno, 208 A.D.2d 1117, 617 N.Y.S.2d 584 2(N.Y.App.Div.1994) (attorney was reprimanded for his conduct in the supervision of a non- attorney employee and in the management of his law office in violation of the rules of profes- sional conduct of New Jersey prohibiting gross neglect, aiding the unauthorized practice of law, and failure to supervise adequately a non-attorney employee); Florida Bar v. Rogowski,

399 So.2d 1390, 1391 (Fla.1981) (noting that an attorney's nonlawyer personnel are agents of the attorney and attorney is responsible for seeing that the agents' actions do not violate the Code of Professional Responsibility), and State v. Barrett, 207 Kan. 178, 483 P.2d 1106, 1110 (1971) (noting that the work done by secretaries and other lay persons is done as agents of the lawyer employing them and the lawyer must supervise their work and be responsible for their work product or the lack thereof). 74 P3d at 571-72. At trial respondent argued that the Bar must establish a violation of both RPC 5.3(a) 3and (b) because the two subsections are joined by the conjunction "and." Subsection (b) makes a lawyer responsible for a violation of the Rules of Professional Conduct committed by another if the lawyer orders or ratifies the conduct or in a supervisory role knows of the conduct but fails to take remedial action when the consequences can be avoided or mitigated. It is a separate stand-alone violation, and need not be proved to establish a violation of subsection (a). 5

1. Respondent violated RPC 1.4(a) but not RPC 1.4(b). RPC 1.4(a) states: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." RPC 1.4(b) then states: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The factors we consider regarding an alleged violation of RPC 1.4(a) include, among other things, the length of time a lawyer failed to communicate; whether the lawyer failed to respond promptly to reasonable requests for information from the client; and whether the lawyer knew or a reasonable lawyer would have foreseen that a delay in communication would prejudice the client. In re Groom, 350 Or 113, 124, 249 P3d 976, 983 (2011). In this case, respondent failed to inform Alcantar of the status of her legal matter: specifically, that the court's judgment had issued and that the attorney fees petition had not been timely filed. Respondent failed to inform Alcantar of those developments over a period of nine months, because respondent forgot about Alcantar's legal matter when the system he had in place failed to remind him. Respondent also failed to respond to Alcantar's reasonable requests for information about attorney's fees for nine months. At that point Alcantar gave up and resorted to litigation. The lack of substantive response to the client's inquiries violated RPC 1.4(a) cited above. Respondent argues, again, that he did not personally know about his client's commu- nications or the status of his client's case, and is therefore not responsible for failing to promptly respond to requests for information or providing status updates. We agree with the conclusion of the Colorado court in Smith when it analyzed identical charges: "[Respondent's] failure to inform himself of the status of the case does not abrogate his responsibility to keep the client reasonably informed." 743 P3d at 573. We conclude, however, that the Bar has not established respondent violated RPC 1.4(b). The Oregon Supreme Court has emphasized that "not every failure to respond to a client's requests [for information] also constitutes a failure to explain a matter sufficiently to permit a client to make an informed legal decision." In re Koch, 345 Or 444, 455 (2008). In Koch, the lawyer agreed to represent a client, Mahler, in dissolving her marriage. By October 42004, the divorce was final except that a qualified domestic relations order (QDRO) was needed to divide a retirement account in accordance with the dissolution judgement. The lawyer arranged to have another attorney complete the QDRO, but did not inform Mahler about the need to speak with the other attorney until August 2005. When Mahler met with the other attorney they discovered a problem in the dissolution judgement. From August 2005 until May 2006, Mahler attempted to contact the lawyer to correct the judgement, without success. From those facts, the Supreme Court found that the lawyer had violated RPC 1.4(a) but not RPC 1.4(b): It is true, as the Bar alleged and the evidence shows, that the accused failed to respond to [the client's] requests for information and that she failed to inform [the client] about the status of her case in violation of RPC 1.4(a). However, not The lawyer in Koch was accused of professional responsibility violations with respect 4to several clients, but only those with respect to Mahler are relevant here. 6

every failure to respond to a client's requests also constitutes a failure to explain a matter sufficiently to permit a client to make an informed legal decision. In this case, the complaint does not allege what matter the accused failed to explain, nor is the factual basis for the charge apparent from the documents that the Bar submitted. Finally, in its brief, the Bar never explains the factual basis for this charge; instead, it simply posits, without any explanation, that the accused violated RPC 1.4(b). In this posture, the record does not persuade us by clear and convincing evidence that the accused violated RPC 1.4(b). In re Koch at 455. By contrast, in In re Snyder, 348 Or 307, 232 P.3d 952 (2010), the lawyer agreed to represent a client, Cohn, in a personal injury claim against a hotel. Cohn provided the lawyer with medical documentation, told the lawyer his medical condition could not be improved with further treatment (i.e. he was "medically stationary"), and asked the lawyer to expedite the legal claims against the hotel. The lawyer determined that Cohn was not yet medically stationary and that the case was weak, and consequently did not move forward with negotia- tions or litigation. The lawyer did not tell Cohn about those determinations, inform Cohn that the case was not being expedited, or seek additional medical information. For various reasons, the lawyer did not communicate with Cohn about the status of the case for approximately eight months, at which point the lawyer told Cohn that the hotel would not negotiate and that a lawsuit would be unsuccessful. Cohn attempted to seek other counsel to pursue his claims, but no other attorney was willing to take the case due to the short remaining time frame before the expiration of the statute of limitations. From those facts, the Supreme Court found a violation of RPC 1.4(b): Finally, the accused failed to discharge his professional responsibility to explain the case to [the client] to the extent reasonably necessary to permit Cohn to make informed decisions about it. Although "not every failure to respond to a client's requests [for information] also constitutes a failure to explain a matter sufficiently," In re Koch, 345 Or 444, 455, 198 P.3d 910 (2008), a lawyer is required to consult with a client and to discuss concerns that a claim may lack merit or should not be pursued. [Citation omitted]. Here, the accused did not inform Cohn that he did not believe that Cohn was medically stationary and that, therefore, settlement negotiations were premature, or that Cohn's case was much weaker than he previously had believed because of Cohn's other injuries. Those conclusions are precisely the kind of information that a client needs to know in order to make informed decisions about the case. We find that the Bar has proved by clear and convincing evidence that the accused violated RPC 1.4(a) and (b). Snyder, 232 P.3d at 958. In this case, similar to Koch, the Bar did not allege in the complaint what matter respondent failed to sufficiently explain. The complaint alleges that from September 2017 to June 2018 respondent failed to communicate with Alcantar about the status of the attorney fees petition or respond to her requests for information; there is no allegation of a failure to explain some matter so Alcantar could make informed decisions about the case. Unlike in Snyder, the factual basis for the RPC 1.4(b) charge is not apparent from the facts in the record. The record 7

establishes that respondent discussed recovery of attorney fees with Alcantar near the very beginning of the representation, at which time Alcantar made clear that she wished to pursue attorney fees if she possibly could. Then, immediately after respondent assisted Alcantar to prevail on the underlying child custody matter, respondent again discussed the possibility of 5pursuing attorney fees with Alcantar outside the courthouse. At that time, Alcantar again directed respondent to pursue attorney fees on her behalf. From those facts, it is apparent that respondent explained the matter of attorney fee recovery sufficiently for Alcantar to make an informed decision about whether to pursue those fees in her case. The record reflects no further decisions that Alcantar needed to make with regards to the representation. As discussed above, respondent's subsequent failures to adequately supervise his staff or communicate with Alcantar about the status of her attorney fee recovery over a period of many months violated other rules of professional conduct. But that conduct does not provide a clear and convincing basis on which to conclude that respondent failed to explain matters sufficiently so Alcantar could make informed decisions about the direction of her case. Accordingly, we find that respondent failed to communicate and keep his client reasonably informed in violation of RPC 1.4(a) but did not violate RPC 1.4.(b). SANCTION

make a preliminary determination of the presumptive sanction. We may then adjust the sanction based on the existence of aggravating or mitigating circumstances. Respondent violated the duty he owed to his client to communicate, and his duty as a professional to supervise staff. ABA Standards 4.0 and 7.0. The ABA Standards recognize three mental states: "Intent" is the conscious objective or purpose to accomplish a particular result. "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. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the Although domestic relations practitioners prefer not to describe litigants in a child 5custody matter as "prevailing" over one another, it is undisputed that - with the exception of the attorney fees matter - Respondent's representation resulted in Alcantar receiving the relief she sought from the court. 8

standard of care that a reasonable lawyer would exercise in the situation. ABA Standards at 7. Respondent's misconduct here was the result of negligence. For the purposes of determining an appropriate disciplinary sanction, we may take into ABA Standards at 6; In re Williams, 314 Or 530, 840 account both actual and potential injury. 6P2d 1280 (1992). Collateral to the professional responsibility violations here, respondent actually injured his client by failing to seek an award of attorney's fees. Respondent also actually injured her by causing her anxiety and aggravation due to his lack of oversight and communication. See In re Jones, 312 Ore. 611, 618, 825 P2d 1365 (1992) (client anxiety and aggravation are actual injuries under the disciplinary rules). Under the ABA Standards, a reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client and causes injury or potential injury to a client. A reprimand is also appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury. ABA Standards 4.43 and 7.3.

1. A prior record of discipline. ABA Standard 9.22(a). Respondent received a reprimand in 1997 for conflict of interest. In re Alway, 11 DB Rptr 153.

2. Refusal to acknowledge wrongful nature of conduct. ABA Standard 9.22(g).
   Respondent continues to assert that his employee is solely to blame for this incident.

3. Substantial experience in the practice of law. ABA Standard 9.22(i). Respon-
   dent has been practicing since 1977. The following mitigating factors are present as well:

4. Full and free disclosure to disciplinary board or cooperative attitude toward
   proceedings. ABA Standard 9.32(e). We do not give respondent's prior record of discipline significant weight since it pertained to a different rule violation and occurred over 20 years ago. 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). We find no basis for adjusting the sanction upward. A public reprimand "Potential injury" is the harm to a client, the public, the legal system or the profession 6that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some

intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA

is also the minimum disciplinary sanction we can impose, so the sanction cannot be adjusted downward. Oregon case law supports the issuance of a public reprimand. The Bar provided us with a number of citations to cases where a failure to supervise staff resulted in a public reprimand. See, e.g., In re Nishioka, 23 DB Rptr 44 (2009) (public reprimand for violating RPC 1.5(a), RPC 5.3(a), and RPC 5.5(a) for failing to know about or approve all of his assistant's work, which included drafting and signing court documents); In re Idiart, 19 DB Rptr 316 (2005) (public reprimand for delegating to non-lawyer staff the task of sending direct mail solicitations to injury victims, without instructing or supervising staff about when such solicitations would violate the ethical rules); In re Taylor, 23 DB Rptr 151 (2009) (public reprimand for delegating to investigator the use of subpoenas, without adequate instruction or supervision, resulting in attorney obtaining and using improper school records of a juvenile); see also In re Cottle, 29 DB Rptr 79 (2015) (stayed suspension for failing to adequately supervise staff, which resulted in failing to successfully deposit client funds). Sanctions in disciplinary matters are not intended to penalize the accused lawyer, but instead are intended to protect the public and the integrity of the profession. In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998). Appropriate discipline deters unprofessional conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992). We find that a public reprimand is consistent with these goals. We find that the Bar proved the alleged violations of RPC 5.3(a) (failure to supervise non-lawyer personnel) and RPC 1.4(a) (failure to keep a client reasonably informed) by clear and convincing evidence as outlined above, and order that respondent be publicly reprimanded. The charge of violation of RPC 1.4(b) is dismissed. Respectfully submitted this 22nd day of December 2020. /s/Mark A. Turner /s/Micah Moskowitz Micah Moskowitz, Trial Panel Member /s/Sylvia Rasko Sylvia Rasko, Trial Panel Public Member

Cite as In re Sanchez, 35 DB Rptr 11 (2021)

In re: ) ) Complaint as to the Conduct of ) Case No. 20-64 ) JOSEPH RAYMOND SANCHEZ, ) )

Disposition: Violation of RPC 1.3, RPC 1.4(a), and RPC 5.3(a). Order Imposing Reciprocal Discipline. 1-year Effective Date of Order: February 6, 2021 ORDER IMPOSING RECIPROCAL DISCIPLINE Pursuant to BR 3.5(a), the Oregon State Bar ("Bar") has filed a petition seeking reciprocal discipline against Respondent Joseph Raymond Sanchez. The Bar requests the imposition of a one-year suspension. Respondent has answered the petition via an email message to Disciplinary Counsel Eric Collins dated December 28, 2020. Respondent states: "I stipulate to the petition and imposition of the requested one-year suspension and will not be filing an objection, answer or any defense." Respondent was disciplined by the Maine Supreme Court by order dated June 19, 2019, 2017, which adopted a stipulation whereby Respondent was suspended for one year. The Maine disciplinary proceeding arose from neglect, inadequate communication, and Respon- dent's responsibility for the conduct of a non-lawyer employee who provided incorrect information to the client. Given the fact that the discipline sought here is equivalent to that imposed by the State of Maine, and that Respondent has stipulated to the imposition of such a sanction, IT IS HEREBY ORDERED that Respondent is suspended for one year effective on the date this Order becomes final. Respondent is ordered to comply with the provisions of BR (BR) 6.3(a), (b) and (c). Disciplinary Counsel may seek a contempt proceeding and appropriate sanctions before the Supreme Court for failure to comply. BR 6.3(d).

Cite as In re Sanchez, 35 DB Rptr 11 (2021) Dated this 6th day of January, 2021. s/ Mark A. Turner

In re: ) ) Complaint as to the Conduct of ) Case No. 19-94 ) TIMOTHY RICHARD GASSNER, ) ) Counsel for the Bar: Samuel Leineweber Counsel for the Respondent: David J. Elkanich Disposition: Violation of RPC 1.15-1(a), RPC 1.15-1(c), and RPC 5.3(a). Stipulation for Discipline. 180-day suspension, all stayed, 2-year probation. Effective Date of Order: March 2, 2021

Timothy Richard Gassner (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 180-days, all stayed pending two years probation, effective March 2, 2021 for violation of RPC 1.15-1(a), RPC 1.15-1(c), and RPC 5.3(a). DATED this 24th day of February, 2021.

Timothy Richard Gassner, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby stipulate to the following matters pursuant to Bar Rule of Procedure (BR) 3.6(c).

Oregon on September 30, 2002, and has been a member of the Bar continuously since that time, having his office and place of business in Jefferson County, Oregon.

advice of counsel. This Stipulation for Discipline is made under the restrictions of BR 3.6(h).

On January 21, 2020, a formal complaint was filed against Respondent pursuant to the RPC 1.15-1(a), RPC 1.15-1(b), RPC 1.15-1(c), and RPC 5.3(a). The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts

Beginning in 2010, Respondent was the managing partner of his law firm and oversaw his firm's bookkeeping and lawyer trust account transactions. Respondent also had direct supervisory authority over the firm's bookkeeper ("bookkeeper"). On February 6, 2019, staff from Respondent's law firm called and transmitted a letter to the Bar to report two overdrafts in the firm's lawyer trust account. On February 11, 2019, the Bar received an IOLTA overdraft notification from Columbia Bank stating that two items were presented against insufficient trust account funds. The checks for $22,187.98 and $180 were paid from an available balance of $17,436.88. While investigating the overdraft, Respondent discovered that over the course of several years, the bookkeeper transferred client funds from the trust account to the firm's business account before they were earned, and failed to keep accurate records of those transfers of client funds. Respondent and the bookkeeper ascertained the amount of money that was prematurely withdrawn and in June 2019, took out a line of credit to repay the firm's client trust account in and amount of $53,373.32. During the time period relevant herein, Respondent failed to supervise the activity of the bookkeeper sufficiently to discover that she had failed to keep accurate records of client funds in the firm's trust account, that she had failed to keep the clients' funds separate from those of the firm, or that she had withdrawn client funds from the firm's trust account before they were earned.

Respondent admits that, by engaging in the conduct described above, he failed to safeguard client property, in violation of RPC 1.15-1(a), and removed client funds from trust before they were earned, in violation of RPC 1.15-1(c). Respondent also admits that he failed to make reasonable efforts to ensure that his bookkeeper's and staff's conduct was compatible with his professional obligations, in violation of RPC 5.3(a). Upon further factual inquiry, the parties agree that the charge of alleged violation of RPC 1.15-1(b) should be and, upon the approval of this stipulation, is dismissed. Sanction

1. Duty Violated. The ABA Standards presume that the most important duties a
   lawyer owes are those owed to clients. ABA Standards at 5. Respondent violated his duty to his clients to preserve client property. ABA Standard § 4.1. Respondent also violated the duty he owed as a professional to adequately supervise his staff. ABA Standard § 7.0.

2. Mental State. The ABA Standards recognize three mental states. "Intent" is the
   conscious objective or purpose to accomplish a particular result. "Knowledge" is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particu- lar result. "Negligence" is the failure to heed a substantial risk that circum- stances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. ABA Respondent's conduct reflects a negligent mental state. Respondent negligently supervised his staff and failed to confirm that disbursements from the law firm trust account were appropriate, which led to premature withdrawals of client funds before they were earned, and the overdraft of his trust account.

3. Injury. There was both actual and potential injury to Respondent's clients when
   funds were prematurely disbursed before fees were earned. In addition, by failing to comply with the trust account rules, Responded caused actual harm to the legal profession.

4. Multiple Offenses. ABA Standard 9.22(e).
   Respondent has been admitted to practice law in Oregon since 2002.

5. Timely good faith effort to make restitution or to rectify consequences
   of misconduct. ABA Standard 9.32(d).

6. Character or reputation. ABA Standard 9.32(g).

7. Remorse. Respondent has expressed remorse for his conduct. ABA

8. Preliminary Sanction. The ABA Standards provide in pertinent part:
   Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. ABA Stan- dard 4.1 Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. ABA Standard 7.3.

In comparable situations, the Disciplinary Board has approved stipulations imposing suspensions subject to probation. See, e.g.,

• In re Boyd, 33 DB Rptr 492 (2019) [6-month suspension, all stayed, 3-year
  probation] After Respondent overdrew his trust account in 2019, he realized that he had not reconciled his trust account and business account for quite some time. After investigating his accounts, Respondent found that nearly $11,000 in client funds, belonging to multiple clients, had been prematurely withdrawn. Respondent then transferred his own money in to trust to repay the clients. Respondent had an audit done on his accounts and discovered discrepancies going back to 2011. Respondent also concluded that these improper transfers occurred in part because he had failed to properly supervise his bookkeeping staff. [RPC 1.15-1(a), RPC 1.15-1(c), and RPC 5.3(a)].

• In re Landerholm, 32 DB Rptr 372 (2018) [stipulated one-year suspension, all
  stayed/three-year probation] Respondent surrendered management of his trust account to an office manager who, based upon an audit, determined that errors had occurred and then made transfers to and from the trust account to try to reconcile the entries with information listed in other reporting documents and accounts, resulting in some client funds being removed before they were earned. Even following subsequent professional efforts, the accounting discrepancies could never be resolved. [RPC 1.15-1(a), (b), and (c), RPC 5.3(a)].

• In re Allen R. Peters, 32 DB Rptr 213 (2018) [stipulated eight-month
  suspension, all but 30 days stayed/two-year probation]. To address a substantial trust account deficit uncovered by a returned check, Respondent transferred personal funds into his trust account. Further investigation identified five transactions for four separate clients that were either mis-recorded in his ledgers and/or removed from the trust account in error. [RPC 1.15-1(a), (b), and (c)].

• In re Mark O. Cottle, 29 DB Rptr 79 (2015) [stipulated 60-day suspension, all
  stayed/two-year probation] Respondent was a managing attorney who oversaw law firm operations, including how the law firm handled firm and client money, and had direct supervisory authority over the non-lawyer staff. When Respondent's firm received a $35,000 settlement check on behalf of a client, Respondent directed law firm staff to deposit the client's check, and checks from two other clients, into his trust account, for a total deposit of approxi- mately $40,000. Law firm staff did not complete the deposit, and Respondent did not verify that the deposit had been completed before writing a check a few weeks later for his fees. After the bank returned the check for insufficient funds, Respondent transferred approximately $41,000 of his own funds into the firm's lawyer trust account to correct the depositing error. [RPC 1.15-1(b) and (c), RPC 5.3(a)].

BR 6.2 recognizes that probation can be appropriate and permits a suspension to be stayed pending the successful completion of a probation. See also, ABA Standard § 2.7 (probation can be imposed alone or with a suspension and is an appropriate sanction for conduct which may be corrected). In addition to a period of suspension, a period of probation designed to ensure the adoption and continuation of better practices will best serve the purpose of protecting clients, the public, and the legal system.

Respondent shall be suspended for six months for violations of RPC 1.15-1(a), RPC 1.15-1(c), and RPC 5.3(a), with all of the suspension stayed, pending Respondent's successful completion of a two-year term of probation. The sanction shall be effective as directed by the Disciplinary Board (effective date). If Respondent's term of suspension is imposed for any reason, Respondent understands that reinstatement is not automatic and that he cannot resume the practice of law until he has taken all steps necessary to re-attain active membership status with the Bar. During the period of actual suspension, and continuing through the date upon which Respondent re-attains his active membership status with the Bar, Respondent shall not practice law or represent that he is qualified to practice law; shall not hold himself out as a lawyer; and shall not charge or collect fees for the delivery of legal services other than for work performed and completed prior to the period of actual suspension.

Probation shall commence upon the effective date, and shall continue for a period of two years, ending on the day prior to the two year anniversary of the effective date (the "period of probation"). During the period of probation, Respondent shall abide by the following conditions: (a) Respondent will communicate with Disciplinary Counsel's Office (DCO) and allow DCO access to information, as DCO deems necessary, to monitor com- pliance with his probationary terms. (b) Respondent has been represented in this proceeding by David J. Elkanich (Counsel). Respondent and Counsel hereby authorize direct communication between Respondent and DCO after the date this Stipulation for Discipline is signed by both parties, for the purposes of administering this agreement and monitoring Respondent's compliance with his probationary terms. (c) Respondent shall comply with all provisions of this Stipulation for Discipline, the Rules of Professional Conduct applicable to Oregon lawyers, and ORS Chapter 9. (d) During the period of probation, Respondent shall attend not less than 8 MCLE accredited programs, for a total of 24 hours, which shall emphasize trust account management and supervising staff. These credit hours shall be in addi- tion to those MCLE credit hours required of Respondent for his normal MCLE reporting period. (The Ethics School and Trust Accounting School require- ments do not count towards the 24 hours needed to comply with this condition.) Upon completion of the CLE programs described in this paragraph, and prior to the end of his period of probation, Respondent shall submit an Affidavit of Compliance to DCO. (e) Prior to the end of the period of probation, Respondent shall attend Trust Accounting School, which is offered by the Oregon State Bar twice a year in the spring and fall. (f) Throughout the period of probation, Respondent shall diligently review and approve all accounting actions of his firm relating to the disbursement, transfer, or withdrawal of client funds. (g) Each month during the period of probation, Respondent shall: (1) maintain complete records, including individual client ledgers, of the receipt and disbursement of client funds and payments on outstanding bills; and (2) review his monthly trust account records and client ledgers and recon- cile those records with his monthly lawyer trust account bank state- ments; and (h) For the period of probation, Respondent will employ a bookkeeper approved by DCO, to assist in the monthly reconciliation of his lawyer trust account records and client ledger cards. 18

(i) On or before March 1, 2022 and February 1, 2023, Respondent shall arrange for an accountant to conduct an audit of his lawyer trust account and to prepare a report of the audit for submission to DCO within 30 days thereafter. (j) Paul F. Sumner OSB # 780913 shall serve as Respondent's probation supervisor (Supervisor). Respondent shall cooperate and comply with all reasonable requests made by his Supervisor that Supervisor, in his sole discretion, determines are designed to achieve the purpose of the probation and the pro- tection of Respondent's clients, the profession, the legal system, and the public. Respondent agrees that, if Supervisor ceases to be his Supervisor for any reason, Respondent will immediately notify DCO and engage a new Supervisor, approved by DCO, within one month. (k) Respondent and Supervisor agree and understand that Supervisor is providing his/her services voluntarily and cannot accept payment for providing supervision pursuant to this Stipulation for Discipline. (l) Beginning with the first month of the period of probation, Respondent shall meet in person or via Zoom with Supervisor at least once a month for the purpose of: (1) Permitting his Supervisor to inspect and review Respondent's accounting and record keeping systems to confirm that he is reviewing and reconciling his lawyer trust account records and maintaining complete records of the receipt and disbursement of client funds. Respondent agrees that his Supervisor may contact all employees and independent contractors who assist Respondent in the review and reconciliation of his lawyer trust account records. (m) Respondent authorizes his Supervisor to communicate with DCO regarding his compliance or non-compliance with the terms of this agreement, and to release to DCO any information necessary to permit DCO to assess Respondent's compliance. (n) Within thirty (30) days of the effective date, Respondent shall file a report with DCO stating that he met with the PLF Practice Management Attorneys and received advice and assistance regarding procedures for handling client funds and reconciling his trust accounts, and for adequately training his staff regarding the handling of client funds. He shall include in his report the date of his consultation(s) with the PLF's Practice Management Attorneys; the recom- mendations that he has adopted and implemented; and the specific recommen- dations he has not implemented (if any) with an explanation why he has not adopted and implemented those recommendations. Respondent shall provide a copy of the Office Practice Assessment from his earlier meeting(s) with the PLF's Practice Management Attorneys. Respondent's report must be signed by the Practice Management Attorney who advised him. (o) Respondent shall implement all changes recommended by the PLF Practice Management Attorneys, to the extent reasonably possible, and participate in at

least one follow-up review with PLF Practice Management Attorneys on or before September 1, 2021 (p) On a quarterly basis, on dates to be established by DCO beginning no later than 90 days after the effective date, Respondent shall submit to DCO a written

"Compliance Report," approved as to substance by his Supervisor, advising

whether Respondent is in compliance with the terms of this Stipulation for Discipline, including: (1) The dates and purpose of Respondent's meetings with his Supervisor. (2) A description of the accounting activities that Respondent reviewed, and the results thereof, including completion of three way reconciliation of Respondent's trust account. (3) Whether Respondent has completed the other provisions recommended by Supervisor, if applicable. (4) In the event that Respondent has not complied with any term of this Stipulation for Discipline, the Compliance Report shall describe the non-compliance and the reason for it. (q) Respondent is responsible for any costs required under the terms of this stipu- lation and the terms of probation. (r) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to DCO on or before its due date. (s) Respondent's failure to comply with any term of this agreement, including conditions of timely and truthfully reporting to DCO, or with any reasonable request of his Supervisor, shall constitute a basis for the revocation of probation and imposition of the stayed portion of the suspension. (t) The SPRB's decision to bring a formal complaint against Respondent for unethical conduct that occurred or continued during the period of his probation shall also constitute a basis for revocation of the probation and imposition of the stayed portion of the suspension. (u) Upon the filing of a petition to revoke Respondent's probation pursuant to BR 6.2(d), Respondent's remaining probationary term shall be automatically tolled and shall remain tolled, until the BR 6.2(d) petition is adjudicated by the Adjudicator or, if appointed, the Disciplinary Board.

On or before May 2, 2021, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $377.50, incurred for Respondent's deposition. Should Respondent fail to pay $377.50 in full by May 2, 2021, the Bar may thereafter, without further notice to him, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

his suspension or the denial of his reinstatement. The Bar offers Ethics School twice each year. This requirement is in addition to any other provision of this agreement that requires Respondent to attend continuing legal education (CLE) courses.

January 23, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties EXECUTED this 21st day of February, 2021. /s/ Timothy Richard Gassner Timothy Richard Gassner, OSB No. 023090 /s/ David J. Elkanich David J. Elkanich, OSB No. 992558 EXECUTED this 22nd day of February, 2021. By: /s/ Samuel Leineweber Samuel Leineweber, OSB No. 123704

In re: ) ) Complaint as to the Conduct of ) Case No. 19-64 ) MELISSA BLYTHE JAFFE, ) )

Disposition: Violation of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.8(a), RPC 1.15-1(a), RPC 1.15-1(c). Stipulation for Discipline. 120-day suspension. Effective Date of Order: March 31, 2021

Melissa Blythe Jaffe (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 120 days, effective 30 days after the stipulation is approved, for violation of RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.5(a), RPC 1.5(c)(3), and RPC 1.8(a). DATED this 1st day of March, 2021.

Melissa Blythe Jaffe, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on September 25, 2008, and has been a member of the Bar continuously since that time, having her office and place of business in Washington County, Oregon.

On December 19, 2019, a formal complaint was filed against Respondent pursuant to the authorization of the State Professional Responsibility Board (SPRB), alleging violations of RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.5(a), RPC 1.5(c)(3), RPC 1.8(a), and RPC 8.1(a) of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. On February 4, 2021, an amended formal complaint was filed against Respondent pursuant to the authorization of the State Professional Responsibility Board (SPRB), alleging violation of RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.5(a), RPC 1.5(c)(3), and RPC 1.8(a) of the Oregon Rules of Professional Conduct. Facts

In September 2015, Respondent entered into a fee agreement with Complainant that charged a monthly flat fee deemed "earned upon receipt," but which did not state that the funds will not be deposited into the lawyer trust account, that the client could discharge the lawyer at any time, or that the client may be entitled to a refund of unearned fees.

The fee agreement referenced in paragraph 5 charged 10% interest for every 10 days a payment was late. Respondent did not maintain the fees she received under this agreement in a lawyer trust account prior to earning them. In November 2015, Respondent replaced the fee agreement to increase her fee, but kept the same language regarding flat fees and late fees.

In February 2016, Respondent amended the fee agreement referenced in paragraph 7 to add a termination penalty defined as two months' worth of flat fees. Respondent included missing language that the funds will not be deposited into the lawyer trust account, that the client could discharge the lawyer at any time, or that the client may be entitled to a refund of unearned fees. Respondent also corrected other errors, such as a mis-named party.

In April 2016, Respondent and Complainant entered an additional, concurrent monthly flat fee agreement. Per the agreement between the parties, Respondent charged 10% interest for every 20 days a payment was late. In July 2016, Respondent amended it to add a termination penalty defined as two months' worth of flat fees.

In December 2016, Complainant terminated Respondent's services. At the time Respondent was terminated, her monthly flat fee was $7,500 per fee agreement, such that Complainant's total termination fee equaled $30,000.

In March 2017, Respondent invoiced Complainant for $30,000 in legal fees, as well as other costs. Respondent invoiced Complainant again in April 2017, noting that late fees were accruing by 10% every 20 days. Complainant did not pay the invoices.

Through counsel, Respondent sued Complainant for outstanding legal fees and late fees, as well as other damages. Complainant filed a counterclaim for a partial refund of fees, plus recovery of attorney's fees for the litigation. On March 5, 2018, the parties settled all claims.

Amid Respondent's representation of Complainant, in February 2016, Respondent had agreed to sublease a portion of her office to Complainant in exchange for rent. Complainant also paid Respondent $10,000, which was not for legal services, to attend a week-long retreat on Maui, Hawaii, in October 2016. Neither agreement included the written disclosures required by RPC 1.8(a) when entering into a business transaction with a client.

Respondent admits that by her conduct aforementioned in paragraphs 5 through 11, she entered into fee agreements for and charged clearly excessive fees in violation of RPC 1.5(a); entered into fee agreements that denominated fees as "earned on receipt," without the written explanations required by RPC 1.5(c)(3). Because the funds received by Respondent were pursuant to fee agreements that did not comply with RPC 1.5(c)(3), they were client funds and were required to be deposited into Respondent's lawyer trust account. Because Respondent failed to deposit such funds into her trust account, she failed to maintain unearned client funds in a lawyer trust account, in violation of RPC 1.15-1(a) and (c).

Respondent also admits that by her conduct aforementioned in paragraph 12, she entered into two business transactions with a client, without the written, signed disclosures required by RPC 1.8(a). Sanction

stances.

1. Duty Violated. Respondent's excessive fees violated the duty she owed as a professional to charge reasonable fees. ABA Standard 7.0. Respondent's sublease agreement and business retreat violated the duty she owed to her client to avoid conflicts of interest. ABA Standard 4.3.

conscious objective or purpose to accomplish a particular result. Id.

"Negligence" is the failure of a lawyer to heed a substantial risk that circum-

stances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. Id. Here, Respondent knowingly charged the termination penalties and late fee, even if she did not know that such fees were improper. She negligently failed to provide Complainant the writings required when entering business trans- actions with her client.

1. Injury. Injury can be actual or potential. ABA Standard 3.0. Respondent
   injured and potentially injured her client when she invoiced $30,000 in attorney's fees, plus interest at a rate of approximately 180% per annum, then filed suit against her. This caused Complainant to incur legal expenses to defend herself, as well as significant time and anxiety. See In re Obert, 352 Or 231, 260, 282 P3d 825 (2012) (client anguish, uncertainty, anxiety and aggravation are actual injury).

2. Selfish motive. ABA Standard 9.22(b).
   knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. ABA Standard 7.2. 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, and causes injury or potential injury to a client. ABA Standard 4.33.

Oregon case law confirms that a suspension is the appropriate sanction. See, e.g., In re Balocca, 342 Or 279, 298, 151 P3d 154, 164 (2007) (90 day suspension for collecting an excessive fee combined with other rule violations and aggravating factors); In re Kathleen Moore, 21 DB Rptr 281 (2007) (attorney who charged and collected a $10,000 "initial compensation" that bore no relationship to legal services, and $58,080 for five months of overhead, but where the attorney also agreed to refund $53,192.12 to the client, the attorney stipulated to a 60-day suspension); In re Wyllie III, 331 Or 606, 625, 19 P3d 338 (2001) (120- day suspension of a lawyer with prior discipline who negligently charged $1,850, and collected $750, but was only entitled to charge $425 per his fee agreement). In re Adams, 293 Or 727, 652 P2d 787 (1982) (60-day suspension of a lawyer, who among other things, charged his client an amount in excess of what the applicable workers' compensation administrative rules allowed).

Consistent with the Standards and Oregon case law, the parties agree that Respondent shall be suspended for 120 days for violation of RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.5(a), RPC 1.5(c)(3), and RPC 1.8(a), the sanction to be effective 30 days after the stipulation is approved.

In addition, on or before October 31, 2021, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $2,246.80, incurred for personal service of the formal complaint upon Respondent and Respondent's deposition. Should Respondent fail to pay $2,246.80 in full by October 31, 2021, the Bar may thereafter, without further notice to her, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

dent has represented to the Bar that she has no current clients.

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: California, Washington.

January 23, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties EXECUTED this 26th day of February, 2021. /s/ Melissa Blythe Jaffe Melissa Blythe Jaffe, OSB No. 083702 EXECUTED this 1st day of March 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 20-59 ) DAVID J. CELUCH, ) )

Disposition: Violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d). Stipulation for Discipline. 60-day suspension. Effective Date of Order: June 11, 2021 This matter having been heard upon the Stipulation for Discipline entered into by David

1. Celuch and the Oregon State Bar, and good cause appearing, Respondent is suspended for 60 days, effective June 11, 2021, for violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and two counts of RPC 1.15-1(d). DATED this 4th day of March 2021.

David J. Celuch, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 22, 1995, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon.

On December 5, 2020, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of Oregon Rules of Professional Conduct (RPC) 1.3 (duty of diligence), RPC 1.4(a) (duty to keep a client rea- sonably informed about the status of a matter and promptly comply with reasonable requests for information), RPC 1.5(c)(3) (using an earned-upon-receipt fee agreement without required disclosures), RPC 1.15-1(a) (failure to deposit unearned fees into trust), RPC 1.15-1(c) (failure to deposit and maintain client funds in trust until earned or expenses incurred) and two counts of RPC 1.15-1(d) (failure to promptly deliver to the client any funds or other property that the client is entitled to receive). The parties intend that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding. Facts

On November 30, 2018, Shelli Alinari (Alinari) hired Respondent to seek to set aside records of arrest and conviction in five cases, one in Multnomah County and four in Washington County. She signed a flat fee retainer agreement. That agreement did not contain a specific disclosure required under RPC 1.5 for fees earned upon receipt. Specifically, it failed to explain--as required by RPC 1.5(c)(3)--that the $2,055 flat fee paid by Alinari would not be deposited into a lawyer trust account. Respondent did not deposit the $2,055 flat fee into his lawyer trust account because of his mistaken belief that the fees were earned upon receipt and, therefore, should not be deposited into a trust account. Approximately nine months after hiring Respondent, Alinari determined that Respon- dent had not filed any paperwork related to her legal matters. On September 2, 2019, she sent Respondent a certified letter requesting a written update and copies of all correspondence related to the work for which she hired him or a full refund. Alinari requested a response by September 20, 2019. Respondent did not respond to Alinari nor did he provide her with her client file. Respondent did file one motion in Multnomah County on September 20, 2019, but he did not communicate that to Alinari. After not hearing from Respondent, Alinari complained to the Bar. Ultimately, five months later, on February 21, 2020, Respondent sent Alinari a full refund along with drafts of motions for the Washington County matters.

Respondent admits that by failing to work on Alinari's matter and by failing to respond to her reasonable inquiries, he violated RPC 1.3 and RPC 1.4(a). Respondent further admits that his fee agreement pertaining to the representation of Alinari did not contain the requisite disclosures that pertain to an earned-upon-receipt fee agreement as required by RPC 1.5(c)(3). Respondent also admits that, by not having a fee agreement that comported with the require- ments of RPC 1.5(c)(3), he should have deposited fees into his trust account until they were earned and that his failure to do so violated RPC 1.15-1(a) and RPC 1.15-1(c). Additionally, Respondent admits that by failing to promptly deliver a refund to Alinari or promptly provide her with her client file, he violated RPC 1.15-1(d). Sanction

stances.

1. Duty Violated. Respondent violated his duty to his client by failing to diligently attend to her matter and also by failing to communicate with her in a timely and effective manner. ABA Standard 4.4. Respondent violated his duty to preserve client property, which incorporates his delayed refund to his client and failure to provide the client file. ABA Standard 4.1. Finally, Respondent violated his duty as a legal professional related to his handling of legal fees, which includes his non-compliant fee agreement and his handling of Alinari's payment. ABA Standard 7.0.

lawyer would exercise in the situation. Id. Here, Respondent acted knowingly and negligently in his violations of his duties. Williams, 314 Or 530, 547, 840 P2d 1280 (1992). The client suffered actual injury through Respondent's failure to advance the client's legal matters. The Oregon Supreme Court has held that there is actual injury to a client when an attorney fails to actively pursue the client's matters. See, e.g., In re Parker, 330 Or 541, 546-47, 9 P3d 107 (2000). The client also suffered actual injury in the 30

form of anxiety and frustration that she experienced as a result of Respondent's failure to adequately communicate with her or work on her legal matters. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000) (client anxiety and frustration as the result of attorney neglect can constitute actual injury under the ABA Standards); In re Schaffner, 325 Or 421, 426-27, 939 P2d 39 (1997). The client also suffered actual injury due to the delay in obtaining her refund.

1. Prior disciplinary offenses. ABA Standard 9.22(a). Respondent was
   admonished in July 2008 for violating RPC 1.4(a) when he failed to respond to his client's request for information for five months and failed to apprise his client of a development in his case for months.

2. Pattern of misconduct. ABA Standard 9.22(c).
   Respondent was licensed to practice in Oregon in 1995.

3. Absence of dishonest motive. ABA Standard 9.32(b).
   knowingly fails to perform services for a client and causes injury or potential injury to a client. ABA Standard 4.42(a). Suspension is also generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. ABA Standard 4.12. As to Respondent's flat fee agreement and his handling of the retainer, admonition is generally appropriate when a lawyer engages in an isolated instance in determining whether the lawyer's conduct violates a duty owed as a professional and causes little or no actual or potential injury to a client, the public, or the legal system. ABA Standard 7.4.

Oregon case law supports the imposition of a suspension. The presumption is that knowing neglect of a client's legal matter typically results in a 60-day suspension. See In re Redden, 342 Or 393, 401, 153 P3d 113 (2007) (court so concluded after reviewing similar cases). Similar sanctions have been imposed in cases involving neglect and failure to com-municate. In re Knappenberger, 337 Or 15, 90 P3d 614 (2004) (imposing a 60-day suspension for neglect, including failure to adequately communicate with clients); In re Lebahn, 335 Or 357, 67 P3d 381 (2003) (attorney suspended for 60 days for knowing neglect of a client matter and failure to communicate).

Respondent shall be suspended for 60 days for violating RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and two counts of RPC 1.15-1(d). The suspension will take effect June 11, 2021. Though the postponement of sanction is much longer than usual, the parties agree to the delay due to the COVID pandemic and Respondent's high-volume caseload.

Respondent has arranged for Eric J. Hale, an active member of the Bar with a business address of 1318 SW 12th Ave., Portland, OR, 97201, to either take possession of or have ongoing access to Respondent's client files and serve as the contact person for clients in need of the files during the term of his suspension. Respondent represents that Eric J. Hale has agreed to accept this responsibility.

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: None.

December 5, 2020. Approval as to form by Disciplinary Counsel is evidenced below. The

EXECUTED this 1st day of March 2021. /s/ David J. Celuch David J. Celuch, OSB No. 952291 EXECUTED this 3rd day of March 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 20-55 ) GARY R. LUISI, ) )

Counsel for the Respondent: Christopher R. Hardman Disposition: Violation of RPC 4.2. Stipulation for Discipline. Public Reprimand. Effective Date of Order: March 12, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Gary

1. Luisi and the Oregon State Bar, and good cause appearing, Gary R. Luisi is publicly reprimanded for violation of RPC 4.2. DATED this 12th day of March 2021.

Gary R. Luisi, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 17, 1971, and has been a member of the Bar continuously since that time, having his office and place of business in Umatilla County, Oregon. 34

On October 17, 2020, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violation of Oregon Rule of Professional Conduct (RPC) 4.2 (communication with person represented by counsel). The parties intend that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding. Facts

In 2015, Peter J. Hall (Peter) undertook to administer the estate of his deceased father (decedent) as the claiming successor. Peter hired counsel to represent him.

Peter filed three Affidavits of Small Estate: on February 24, 2015, June 5, 2015, and October 30, 2015. The various affidavits did not identify the decedent's mother and brother as creditors of the estate, did not identify the decedent's wife and daughter as heirs of the estate, and did not identify all of the decedent's property.

The decedent's brother, mother and wife hired Respondent to represent them.

On or about March 13, 2015, Respondent mailed directly to Peter claims against the estate on behalf of the decedent's brother and mother. ORS 114.540(1) allowed claims against an estate to be presented to the affiant within four months of the filing of the affidavit. However, Respondent accompanied the claim forms with a cover letter in which he notified Peter and his sister that he would pursue a no-contact order if they contacted the decedent's mother again. In the letter, Respondent also advised Peter about the decedent's bank accounts and inquired about the whereabouts of the funds from those accounts. Respondent knew that Peter was represented at the time Respondent sent the letter and sent a copy of the letter to Peter's attorney.

On or about March 23, 2015, Peter's attorney mailed a letter to Respondent on behalf of Peter. The letter explained Peter's position regarding the reason for denial of the claims submitted by Respondent on behalf of his clients. The letter also addressed the issue of the potential no-contact order but did not reference the decedent's bank accounts or the where- abouts of the money from those accounts. 35

On or about April 20, 2015, Respondent mailed directly to Peter a claim against the estate on behalf of the decedent's wife. ORS 114.540(1) allowed claims against an estate to be presented to the affiant within four months of the filing of the affidavit. A cover letter from Respondent again accompanied the claim form. The letter repeated Respondent's query regarding the whereabouts of the funds from decedent's bank accounts. Respondent also requested from Peter an itemized inventory of the personal property from the decedent's home and copies of any videos taken of the decedent's possessions. Respondent additionally asked Peter to explain how Peter intended to sell the property. Respondent knew that Peter was still represented at the time Respondent sent the letter. Respondent sent a copy of the letter to Peter's attorney as well.

Respondent admits that, while representing clients, he communicated with Peter, in addition to presenting claims allowed by ORS 114.540, on subjects related to that repre- sentation while knowing that Peter was represented by a lawyer on those subjects. Respondent thus admits he violated RPC 4.2. Sanction

stances.

1. Duty Violated. Respondent violated his duty to avoid improper communica- tions with individuals in the legal system. ABA Standard 6.3.

lawyer would exercise in the situation. Id. Respondent sent correspondence on the subject of the representation directly to Peter, when he knew that Peter was represented. Although the law allowed Respondent to send claim forms directly to Peter as the affiant in the Affidavit of Small Estate, Respondent negligently and erroneously determined that the additional communication and queries in the cover letters that accompanied those forms was proper. 36

foreseeable at the time of the lawyer's misconduct, and which, but for some misconduct. ABA Standards at 19. Respondent's communications with Peter caused potential injury to Peter in the form of potential interference with the client-lawyer relationship and the potential for the uncounseled disclosure of information relating to the representation. Respondent was admitted to practice in Oregon in 1971.

1. Full and free disclosure. ABA Standard 9.32(e). Under the ABA Standards, a public reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system and causes injury or potential injury to a party or interference or potential interference with the outcome of a legal proceeding. ABA Standard 6.33.

This sanction is in accord with Oregon case law. See In re Newell, 348 Or 396, 234 P3d 967 (2010) (reprimanding an attorney for summoning a witness to a deposition without giving him time to consult with his attorney).

Respondent shall receive a public reprimand for violation of RPC 4.2, the sanction to be effective upon approval of this stipulation by the Disciplinary Board Adjudicator.

October 17, 2020. Approval as to form by Disciplinary Counsel is evidenced below. The EXECUTED this 26th day of February 2021. /s/ Gary R. Luisi Gary R. Luisi, OSB No. 711053 /s/ Christopher R. Hardman Christopher R. Hardman, OSB No. 792567 EXECUTED this 9th day of March 2021.

Cite as In re Hoover, 35 DB Rptr 39 (2021)

In re: ) ) Complaint as to the Conduct of ) Case No. 21-31 ) GREGORY S. HOOVER, ) ) Counsel for the Bar: Stacy R. Owen

Disposition: Violation of RPC 1.3, RPC 1.4(a), and RPC 1.4(b). Reciprocal Discipline. 30-day suspension. Effective Date of Order: March 30, 2021 This matter came before the Adjudicator of the Disciplinary Board of the Oregon State Bar (Bar), upon the Bar's Petition for Reciprocal Discipline pursuant to BR 3.5. Respondent answered the petition, admitting that he entered into a stipulation for discipline with the Washington State Bar Association that imposed a 30-day suspension beginning on March 26, 2021 and agreeing to a 30-day suspension in this state "beginning on March 26, 2021 or the soonest date thereafter." Accordingly, IT IS HEREBY ORDERED that Respondent is suspended from the practice of law for a period of 30 days, commencing on March 30, 2021. DATED this 30th day of March, 2021.

Cite as In re Graeff, 35 DB Rptr 40 (2021) Cite full opinion as 368 Or 18 (2021)

In re: ) ) ) ERIK GRAEFF, ) ) (OSB 18-175; 18-197; SC S067639) Argued and submitted January 7, 2021. Erik Graeff, Vancouver, Washington, argued the cause and filed the briefs on behalf of himself. Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Judge, Justice pro tempore. (* Balmer, J., did not participate in the consideration or decision of this case.) Respondent is suspended from the practice of law for a period of five years, com- mencing on the date of this decision. In this lawyer discipline case, the Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 8.4(a)(2) (prohibiting commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer) after he fired six bullets into the occupied offices of a lawyer with whom he was having a professional dispute, narrowly missing one of the occupants of the building. In an unrelated matter, the Bar 1also charged respondent with violating RPC 1.4(a) (requiring lawyer to keep client reasonably Based on that same misconduct, the Bar also charged respondent with violating ORS 19.527(2) (Supreme Court may disbar, suspend, or reprimand a member of the bar who has been convicted of a felony). However, the Bar withdrew that statutory charge for purposes of review in this court, noting that the court has advised the Bar not to charge violations of ORS 9.257 when the acts allegedly violating the statute also would constitute a violation of a disciplinary rule. In re Strickland, 339 Or 595, 602 n 7, 124 P3d 1225 (2005) (declining to address alleged violation of ORS 9.527); In re Albrecht, 333 Or 520, 542, 42 P3d 887 (2002) (same); In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (same). 40

Cite as In re Graeff, 35 DB Rptr 40 (2021) informed about status of a matter and promptly comply with reasonable requests for infor- mation) and RPC 1.4(b) (requiring lawyer to explain a matter to extent reasonably necessary to permit client to make informed decisions regarding the representation), based on his failure to timely inform his clients that he had withdrawn from the representation or that the defense had moved for summary judgment in their case.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-23 ) ROBERT M. SNEE, ) ) Counsel for the Bar: Courtney C. Dippel

Disposition: Violation of RPC 1.15-1(d) and RPC 1.16(d). Stipulation for Discipline. Public reprimand. Effective Date of Order: April 29, 2021

Robert M. Snee (Respondent) and the Oregon State Bar (Bar), and good cause appearing, Respondent is publicly reprimanded for violation of RPC 1.15-1(d) and RPC 1.16(d). DATED this 29th day of April, 2021.

Robert M. Snee, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 20, 1985, and has been a member of the Bar continuously since that time, having his office and place of business in Washington County, Oregon. 42

On March 6, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of the Oregon Rules of Professional Conduct (RPC) 1.15-1(d) and RPC 1.16(d). The parties intend that this stipula- tion set forth all relevant facts, violations and the agreed-upon sanction as a final disposition Facts

In May 2018, Oregon residents Chelsea and Scott Pisani (Pisanis) retained California lawyer John Mounier (Mounier), to file a medical malpractice action against defendants in Oregon. Mounier told the Pisanis that he would need to retain Oregon counsel to file the action since he was not licensed here, but that he would submit a pro hac vice application to handle the action once admitted.

Mounier retained Respondent to be his local counsel. On June 8, 2018, Respondent filed the medical malpractice action in Lane County Circuit Court. On July 24, 2018, he filed an amended complaint and thereafter, served the majority of the defendants with summons and the amended complaint. However, he was unable to complete service on one defendant.

That fall, some of the defendants had served Respondent with discovery requests. On November 6, 2018, the Pisanis provided Respondent with a $1,000 check to work on responding to those requests. Snee deposited the check into his trust account on November 8,

2018.

The court dismissed the Pisanis' case on December 23, 2018 due to a failure by Respondent to serve one defendant, and entered its judgment of dismissal on December 27,

1. The Pisanis checked on the status of their lawsuit electronically in late December, and discovered the dismissal. On January 17, 2019, the clients emailed Respondent and informed him that they learned the case had been dismissed. On February 7, 2019, the Pisanis terminated both Respondent and Mounier.

The Pisanis filed a Bar complaint on June 13, 2019. Throughout the course of the Bar's investigation, the Bar inquired as to the status of the Pisanis' $1,000 that they had provided to Respondent. On December 14, 2020, Respondent refunded the balance of funds remaining in his trust account, $700, to Mr. Pisani, after deducting $300 for service costs. Respondent had delayed doing so due to Mounier indicating that he had outstanding costs and expenses in excess of $500.00 and would submit documentation to Respondent of those costs. Respondent refunded the funds after he did not receive any such documentation from Mounier.

Respondent admits that, by failing to refund client funds until December 2020, after being terminated in February 2019, he violated RPC 1.15-1(d) [lawyer shall promptly deliver to the client any funds that the client is entitled to receive], and RPC 1.16(d) [upon termination of representation, lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as refunding any advance payment of fee or expenses that has not been earned or incurred]. Sanction

stances.

1. Duty Violated. Respondent violated his duties owed to his clients to deal properly with client property and to avoid injury upon termination of repre- sentation. ABA Standard 4.0. He violated duties he owed as a professional to protect the Pisanis' interests upon termination of representation by promptly returning their funds in his possession. ABA Standard 7.0.

objective or purpose to accomplish a particular result. Id. Respondent originally acted negligently, or with the failure to be aware of a substantial risk that circumstances exists or that a result will follow, which failure deviates from the standard of care that a reasonable lawyer would exercise in the situation. ABA Standards at 9. However, as the Bar's investigation wore on and he continued to retain the funds, his conduct arguably became knowing.

Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Respondent's conduct caused actual injury to his former clients, who lost the use of their $700 for almost two years. Respondent was admitted to practice in Oregon in 1985.

1. Absence of prior discipline. ABA Standard 9.32(a).
2. Remorse. ABA Standard 9.32(l). Under the ABA Standards, suspension is appropriate when a lawyers knows or should know that he is dealing improperly with client property and causes a client injury or potential injury. ABA Standard 4.12. Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. ABA Standard 4.13.

Reprimand would also be appropriate under Oregon case law, including the following cases that resulted in stipulated reprimands: In re Farrell, 33 DB Rptr 164 (2019). Upon client's termination of representation, attorney failed to transfer client's file to new counsel for several months, despite written requests. In re Kmetic, 33 DB Rptr 518 (2019). Attorney refused to refund any portion of an advance flat fee when representation was terminated before she had completed the repre- sentation for which the flat fee had been paid. Aggravating factors included prior discipline and substantial experience. In re Hafez Daraee, 32 DB Rptr 252 (2018). Attorney received a retainer to defend a case. After the client terminated representation and directed where a refund be sent, attorney did not respond to multiple communications from the client and the client's new lawyer, and failed to refund the fee until after being notified of the Bar complaint. In re James F. O'Rourke, 32 DB Rptr 36 (2018). Attorney who was hired on a criminal case took a nonrefundable fee, but was terminated before completing the services for which he was paid, and then failed to refund any portion of the fee until the disciplinary proceeding was filed. Aggravating factors included prior discipline and substantial experience. In re Lynne B. Morgan, 31 DB Rptr 28 (2017). Upon a client's termination of the representation, attorney failed to promptly account for or deliver funds that client had advanced 45

for costs that had not been incurred, but had been mistakenly withdrawn from trust. Aggra- vating factors included substantial experience and multiple violations. In re Ivan S. Zackheim, 28 DB Rptr 9 (2014). In a personal injury action, clients terminated attorney's representation and instructed him to forward their files to new counsel. Attorney refused, improperly asserting that he was entitled to retain them. In re Jerry G. Kleen, 27 DB Rptr 213 (2013). Attorney took nearly eight months after representation ended to return funds the client had paid him to obtain an expert opinion that he never sought. Attorney also engaged in neglect and failure to communicate. Aggravating factors included substantial experience and multiple violations. In re Daniel L. Lounsbury, 24 DB Rptr 53 (2010). Attorney failed to refund a portion of a client's advance fee when representation ended before the legal services were completed. In re Ann B. Witte, 24 DB Rptr 10 (2010). Attorney withdrew from representing a client without returning file materials to the client proceed pro se. In re Patrick D. Angel, 22 DB Rptr 351 (2008). Attorney represented a client in a legal action for about 16 months, during which time he filed a complaint in district court. Shortly after filing the complaint, attorney informed his client that he had accepted another job and would need to withdraw from the client's case. Respondent failed to refund the client's unearned funds until about seven months after withdrawing.

dent shall be publicly reprimanded for violation of RPC 1.15-1(d) and RPC 1.16(d).

his suspension. This requirement is in addition to any other provision of this agreement that

March 6, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties

EXECUTED this 27th day of April, 2021. /s/ Robert M. Snee Robert M. Snee, OSB No. 853349 EXECUTED this 27th day of April, 2021. By: /s/ Courtney C. Dippel Courtney C. Dippel, OSB No. 022916 Disciplinary Counsel

Cite as In re Hale, 35 DB Rptr 48 (2021)

In re: ) ) Complaint as to the Conduct of ) Case No. 21-13 ) LEILA LOUISE HALE, ) ) Counsel for the Bar: Susan R. Cournoyer

Disposition: Violation of RPC 1.5(a), RPC 5.3(a), and RPC 5.3(b). Reciprocal Discipline. Public reprimand. Effective Date of Order: April 30, 2021 This matter came before the Adjudicator of the Disciplinary Board on the Oregon State Bar's (Bar) Petition for Reciprocal Discipline pursuant to BR 3.5. Respondent accepted service of the petition on March 1, 2021. Respondent has failed to file an answer within the time allowed. If no answer is timely filed, the Adjudicator may proceed to the entry of an appropriate judgment based upon review of the record. BR 3.5(d). It appears from the record that Respondent was reprimanded by the State Bar of Nevada effective January 28, 2020 arising from Respondent's use of non-lawyer staff to make home visits to potential clients and from certain provisions of Respondent's fee agreements. Respon-dent entered a Conditional Guilty Plea in Exchange for a Stated Form of Discipline. Exhibit 1 to Petition for Reciprocal Discipline. Respondent's acknowledged conduct violated Oregon RPC 1.5(a) and Oregon RPC 5.3(a) and (b). Accordingly, IT IS HEREBY ORDERED that the Petition for Reciprocal Discipline is GRANTED and Respondent is PUBLICLY REPRIMANDED. DATED this 30th day of March, 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-01 ) ATHUL K. ACHARYA, ) ) Counsel for the Bar: Susan R. Cournoyer Counsel for the Respondent: Amber L. Bevacqua-Lynott Disposition: Violation of RPC 8.4(a)(2). Reciprocal Discipline. Effective Date of Order: May 8, 2021 This matter is before me on the Oregon State Bar's (Bar) Petition for Reciprocal Discipline pursuant to BR 3.5. Respondent answered the petition, objecting to the imposition of reciprocal discipline, and asserting the defenses set forth in BR 3.5(c). The Bar was allowed to file a reply in support of the petition. I have considered the record and, as explained below, conclude that there is no need to appoint a trial panel to hear testimony, and Respondent should be disciplined in Oregon by the issuance of a public reprimand. DISCUSSION Respondent pleaded guilty to misdemeanor battery in California arising from a drunken encounter with law enforcement officers after a Stanford football game in October 2017. Respondent was charged with Battery on a Police Officer Engaged in the Performance of Duties and Resisting, Delaying, or Obstructing an Officer, both misdemeanors under California law. He pleaded no contest to an amended charge of Battery and the above counts were dismissed. The court placed Respondent on a two-year probation. He was ordered to stay away from Stanford football games, attend 40 AA meetings, and perform 220 hours of com- munity service through non-profit or pro bono legal work. The court ordered that the probation could be terminated after one year if Respondent completed the terms and conditions. Respondent's conviction was expunged pursuant to a California Penal Code section that allows for expungement when all probation conditions are completed and probation is successfully terminated. The conviction was not expunged for California State Bar purposes. The crime was not one involving moral turpitude, but California will impose discipline based on case law for other misconduct warranting discipline. The California State Bar Court initiated a proceeding. Respondent stipulated to the charge and to a sanction of a private 49

reproval with conditions. A private reproval imposed after initiation of a proceeding in California is part of the respondent's official state bar record, disclosed in response to public inquiries, and is reported as a record of public discipline on the California State Bar's web page. The conditions imposed with the private reproval required Respondent to meet with the Office of Probation, file quarterly written reports with that office for one year, attend State Bar Ethics School, and pass an Ethics School exam. The Oregon State Bar asks that Respondent be publicly reprimanded for the conduct resulting in discipline in California. BR 3.5(d) provides that the Adjudicator, in his or her discretion, may decide the ques- tion of imposition of reciprocal discipline on the record submitted, or may take testimony on the defenses asserted, in which case a trial panel is appointed. BR 3.5(f). In this case, the record is sufficient to address the defenses asserted and there is no need for additional testimony. Respondent asserts the following three defenses set forth in BR 3.5(c) to the Bar's petition:

"I. Mr. Acharya would be deprived of due process if found, on this record,

to be in violation of the charge sought by the Oregon State Bar. Although Mr. Acharya does not contest that the procedure afforded to him in the State Bar of California proceeding on the charge to which he stipulated in that jurisdiction provided him with sufficient due process, Mr. Acharya was not provided an opportunity to address the facts or allegations requisite to the charge sought in this Oregon State Bar reciprocal proceeding.

1. The submitted record regarding Mr. Acharya's discipline in California
   is not sufficient to establish a violation of Oregon RPC 8.4(a)(2).

2. Oregon disciplinary proceures contain no sanction equivalent to the
   sanction imposed in California, and Mr. Acharya believes that his contest of the charge sought by the Oregon Bar in an original proceeding would result in a dismissal." Answer to OSB's BR 3.5 Petition at p. 1. (underlining in original.) Respondent acknowledges that the procedures employed in California provided him with due process. He argues that he would be deprived of due process here because he was not able to address "the facts or allegations requisite to the charge sought in this Oregon State Bar reciprocal proceeding." Respondent says this is so because Oregon does not have the non- statutory California rule prohibiting misconduct not involving moral turpitude but involving other misconduct warranting discipline. Respondent says the closest rule "in language and intent is ORS 9.527(2)," (Answer at p. 4), which requires a conviction for a felony or mis- demeanor involving moral turpitude, and Respondent did not plead to such a crime. What is at issue here is not the rule Respondent violated under California law, but the conduct for which Respondent was disciplined, and whether that conduct would be misconduct under Oregon's rules. In making that determination, we look at the facts of the case as they were found by the other jurisdiction, not the particular rule involved. Respondent may not use a BR 3.5 proceeding to challenge the factual basis for the California discipline if it was determined in a fashion that provided him with due process. Moreover, the facts in the record here were stipulated to by Respondent. 50

The Bar does not contend that Respondent should be disciplined under ORS 9.527(2). It argues that Respondent's actions violated RPC 8.4(a)(2) in that the criminal act reflects adversely on Respondent's fitness as a lawyer. Even though Respondent pleaded guilty to a charge of simple battery, he stipulated to the fact that he committed a battery on a police officer by biting him, and otherwise resisted the authority of the officers he encountered. Petition, Exhibit 1 at p. 10. The Oregon Supreme Court has made clear that this type of conduct runs afoul of the rule, and that the submitted record is sufficient to establish such a violation. In In re Jaffee, 331 Or 398, 15 P3d 533 (2000), the court analyzed an attorney's confrontation with a law enforcement officer under the predecessor to RPC 8.4(a)(2), DR 1-102(A)(2). The court stated:

"Although the fact and circumstances of the criminal act are proven, the

question remains whether that act is of the sort that reflects adversely on the accused's "fitness to practice law." Not every criminal act reflects adversely on a lawyer's "fitness to practice law" within the meaning of DR 1-102(A)(2). As this court noted in In re White, 311 Or. 573, 589, 815 P.2d 1257 (1991), "[t]here must be some rational connection other than the criminality of the act between the conduct and the actor's fitness to practice law." White identified a number of "pertinent considerations" with respect to whether a criminal act adversely reflects on a lawyer's fitness to practice law:

'[T]he lawyer's mental state; the extent to which the act demonstrates disrespect

for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct.' Id. Applying those factors, the accused certainly demonstrated a "disrespect for * * * law enforcement." The accused's physical intrusion into Pemberton's arrest also threatened to turn an unpleasant but peaceful act of law enforcement into a violent confrontation, with the officers as potential victims. There was no actual physical injury, and no pattern of criminal conduct, but lawyers are supposed to respect and vindicate the traditional process of reviewing the propriety of police actions in court, not attempt to circumvent those processes by initiating confrontations in the street. The accused's acts reflect directly on his fitness to practice law. We find that he violated DR 1-102(A)(2)." 331 Or at 404-05 (emphasis added.) Respondent's actions here are of the same kind and violated RPC 8.4(a)(2). As to the sanction question, the public nature of a private reproval under California's disciplinary system establishes that a public reprimand in Oregon is substantially equivalent for our purposes. Given the extra conditions imposed in California, the public reprimand sought here may actually be a lesser sanction than that imposed in California. The imposition of a public reprimand does not result in grave injustice, nor is it offensive to public policy.

Accordingly, IT IS HEREBY ORDERED that the Petition for Reciprocal Discipline is GRANTED and Respondent is PUBLICLY REPRIMANDED. DATED this 7th day of April, 2021.

In re: ) ) Complaint as to the Conduct of ) Case Nos. 20-12 and 20-13 ) LANCE R. CLARK, ) )

Disposition: Violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), and RPC 8.4(a)(3). Stipulation for Discipline. 180-day suspension, 90-days stayed, 2-year probation. Effective Date of Order: July 18, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Lance

1. Clark (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 180 days, with 90 days of the suspension stayed, pending Respon- dent's successful completion of a two-year probation, effective 30 days after the stipulation is approved, or as otherwise directed by the Disciplinary Board for violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), and RPC 8.4(a)(3). DATED this 18th day of June, 2021.

Lance R. Clark, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 26, 2003, and has been a member of the Bar continuously since that time, having his office and place of business in Clackamas County, Oregon.

On August 4, 2020, a formal complaint was filed against Respondent pursuant to the authorization of the State Professional Responsibility Board (SPRB), alleging violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), and RPC 8.4(a)(3) of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts Nguye Kaladokubo Matter - Case No. 20-13.

In or around March 2016, Respondent began representing Nguye Walter Kaladokubo (Kaladokubo) in a legal malpractice case against Kaladokubo's former lawyer, Todd Peterson (Peterson). The suit arose from a trial that occurred in March 2016, in which Peterson repre- sented Kaladokubo. At all relevant times, Respondent knew that the statute of limitations on Kaladokubo's malpractice claim was two years from when Peterson's alleged negligence occurred or when Kaladokubo discovered the negligence.

Respondent performed some initial research and case review on Kaladokubo's legal matter, but believed the statute of limitations did not begin to run until he discovered additional evidence. Respondent began neglecting it in early 2017. Apart from reviewing Kaladokubo's file more thoroughly in December 2017, Respondent did not perform substantial legal work again until after Kaladokubo contacted the Oregon State Bar in May 2018. The Bar notified Respondent, which prompted him to draft a civil complaint and file it on June 11, 2018, in Kaladokubo vs. Peterson Law Offices PC, Multnomah County Circuit Court Case No. 18-CV-

23809.

On September 19, 2018, the court notified Respondent that it intended to dismiss Kaladokubo's lawsuit in 28 days for want of prosecution, but Respondent took no action and did not inform Kaladokubo of the pending dismissal. On October 25, 2018, the court dismissed the lawsuit. Respondent took no substantial action to reinstate Kaladokubo's lawsuit until April 19, 2019, when Respondent filed a new civil complaint in Kaladokubo vs. Peterson Law Offices PC, Multnomah County Circuit Court Case No. 19-CV-18020. Peterson moved for 54

summary judgment on the grounds that both of Kaladokubo's suits were filed after the statute of limitations had expired. In December 2020, the court granted summary judgment for Peterson and entered a general judgment of dismissal with prejudice.

For multiple periods during the representation, Respondent did not communicate with Kaladokubo. In April 2017 and December 2017, Kaladokubo contacted Respondent seeking information on the status of his case but received no response. In September 2018, Respondent did not inform his client that he had received a notice from the court that his case would be dismissed for want of prosecution, and did not inform him that on October 25, 2018, it had in fact been dismissed. Respondent knew the dismissal was material but did not inform his client partially because Respondent was embarrassed and intended to delay communication until he had a positive update to report.

Respondent admits that, by the conduct aforementioned in paragraphs 5, 6, 7, and 8, he neglected a legal matter entrusted to him in violation of RPC 1.3; failed to keep his client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of RPC 1.4(a); failed to explain a matter to his client reasonably necessary to permit the client to make informed decisions regarding the representation in violation of RPC 1.4(b); and made material misrepresentations by omission to his client in violation of RPC 8.4(a)(3). Elisha Carswell Matter - Case No. 20-12

In October 2013, Respondent began representing Elisha Carswell (Carswell) to legally adopt Carswell's niece, the child of her brother. Respondent had not represented any parties in an adoption matter, but Respondent agreed in part because he believed the adoption would be uncontested. However, Carswell's brother soon became uncooperative with Respondent and Carswell, beginning in or around January of 2014.

Although Respondent performed some work on Carwell's behalf, Respondent con- ducted little to no work for substantial periods of time when he was unsure how to proceed. This included: from approximately January 2014 to December 2014; from approximately August 2015 until April 2018, when the Bar notified Respondent that Carswell contacted the Bar, which prompted him to file a petition and accompanying pleadings for adoption on May 4, 2018; and from approximately May 2018 to August 2019, when Carswell again contacted the Bar which prompted him to act. During that time, in November 2018, the court sent notice to Respondent that it intended to dismiss Carswell's case for lack of service. In January 2019, the court dismissed Carswell's case, and Respondent took no action to reinstate the case or inform Carswell. In August 2019, Carswell learned on her own that her adoption case had been dismissed and she filed a complaint with the Bar's Client Assistance Office, which prompted 55

Respondent to seek and obtain an order to reinstate the case and move for a contested adoption. Carswell terminated Respondent's representation; Respondent refunded Carswell the legal fees that he had previously charged her, and he provided the client file and information about the case to Carswell's new counsel. Carswell hired new counsel in the adoption matter, who promptly filed a new petition for adoption and had the adoption finalized for Carswell within several months.

For multiple periods of time during the representation, Respondent failed to respond to Carswell and, at times, actively avoided responding to her requests for information. In 2016, Respondent began purposely avoiding Carswell out of embarrassment, and from approxi- mately August 2016 to August 2018, did not respond to Carswell's repeated requests for status updates. During that time period, Respondent spoke to Carswell approximately only one or two times. On more than one occasion, Respondent made no substantial progress in the adoption matter because he did not know how to proceed, but Respondent did not communicate his lack of knowledge to Carswell so that she could make an informed decision about con- tinuing the representation.

Respondent did not inform his client that in November 2018, he had received a notice from the court that his case would be dismissed for lack of service, or that in January 2019, it had in fact been dismissed. Respondent knew that these facts were material to Carswell but did not inform her partially because Respondent was embarrassed and intended to delay communication until he had a positive update to report to his client. Carswell discovered this information on her own roughly eight months later, in August 2019.

Respondent admits that, by the conduct aforementioned in paragraphs 10, 11, 12, and 13, he neglected a legal matter entrusted to him in violation of RPC 1.3; failed to keep his client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of RPC 1.4(a); failed to explain a matter to his client reasonably necessary to permit the client to make informed decisions regarding the repre- sentation in violation of RPC 1.4(b); and made material misrepresentations by omission to his client in violation of RPC 8.4(a)(3). Sanction

stances. 56

1. Duty Violated. The most important ethical duties a lawyer owes are to his
   clients. ABA Standards at 5. Respondent violated the most important duties that he owed to his clients to act with reasonable diligence and promptness, to com-municate, and to act with candor. ABA Standards 4.4, 4.6. See, e.g., In re Mark

2. Obert, 336 Or 640, 651, 89 P3d 1173 (2004) (where a lawyer procrastinated
   on client matters then chose not to update clients out of shame and embarrassment, the lawyer "violated his duty of candor, ABA Standard 4.6, by waiting five months to inform [his client] that his case had ended").

of care that a reasonable lawyer would exercise in the situation. Id. Here, Respondent negligently failed to pursue client matters or communicate with his clients. He knowingly omitted facts from his clients by failing to inform them of the adverse case events.

1. Injury. Injury can be actual or potential. Potential injury is the harm "that is
   reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct." ABA Standards at 9. Here, both clients suffered worse legal outcomes from Respondent's repre- sentation. In Kaladokubo's case, Respondent missed the statute of limitations, causing the case to be dismissed with prejudice on December 23, 2020. In Carswell's case, the adoption was not finalized until his client fired him and obtained substitute counsel. Meanwhile, in the seven years that Respondent represented Carswell, she lacked the full rights and securities of being deemed her child's legal parent. Both clients - and particularly Carswell - suffered anxiety and emotional distress over the delays. Respondent caused his clients, the courts, and the Bar to devote additional resources in attempting to get him to respond to clients and work on their cases.

2. A pattern of misconduct. ABA Standard 9.22(c).

3. Substantial experience in the practice of law. ABA Standard 9.22(i).

4. Personal or emotional problems. ABA Standard 9.32(c).

5. Restitution. ABA Standard 9.32(d) - Respondent refunded Carswell's
   full retainer; he did not receive funds from Kaladokubo. 57

6. Cooperative attitude toward disciplinary proceedings. ABA Standard
   9.32(e).

7. Remorse. ABA Standard 9.32(l).
   Under ABA Standard 4.42, suspension is generally appropriate when: "(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." Similarly, suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client. ABA Standard 4.62.

Similar cases involving significant periods of neglect result in moderate length suspensions. See, e.g., In re Butler, 324 Or 69, 76, 921 P2d 401 (1996) (one-year suspension when the attorney neglected a client's law suit until it was dismissed, and intentionally did not inform his client while he attempted to have the suit reinstated); In re Aman, 29 DB Rptr 334 (2015) (one-year suspension, with all but six months stayed pending a two-year probation, when attorney neglected a patent infringement matter for five years); In re Merrill, 29 DB Rptr 306 (2015) (120-day suspension with all but 30 days stayed pending a two-year probation, when attorney neglected matters for three clients); In re McVea, 29 DB Rptr 163 (2015) (6-month suspension when attorney failed to fulfill discovery obligations and the case was dismissed as a sanction, but the attorney told his client it was dismissed on the merits).

BR 6.2 recognizes that probation can be appropriate and permits a suspension to be stayed pending the successful completion of a probation. See also ABA Standard 2.7 (proba- tion can be imposed alone or with a suspension and is an appropriate sanction for conduct which may be corrected). In addition to a period of suspension, a period of probation designed to ensure the adoption and continuation of better practices will best serve the purpose of protecting clients, the public, and the legal system.

Respondent shall be suspended for 180 days for violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), and RPC 8.4(a)(3), with 90 days of the suspension stayed, pending Respondent's successful completion of a two-year term of probation. The sanction shall be effective 30 days after the stipulation is approved, or as otherwise directed by the Disciplinary Board (effective date).

Respondent's license to practice law shall be suspended for a period of 90 days beginning on the effective date, or as otherwise directed by the Disciplinary Board (actual suspension), assuming all conditions have been met. Respondent understands that reinstate- ment is not automatic and that he cannot resume the practice of law until he has taken all steps necessary to re-attain active membership status with the Bar and he is notified that his license to practice has been reinstated. During the period of actual suspension, and continuing through 58

the date upon which Respondent re-attains his active membership status with the Bar, Respondent shall not practice law or represent that he is qualified to practice law; shall not hold himself out as a lawyer; and shall not charge or collect fees for the delivery of legal services other than for work performed and completed prior to the period of actual suspension.

Probation shall commence upon the date Respondent is reinstated to active membership status and shall continue for a period of two (2) years, ending on the day prior to the second year anniversary of the effective date (the period of probation). During the period of probation, Respondent shall abide by the following conditions: (a) Respondent will communicate with Disciplinary Counsel's Office (DCO) and allow DCO access to information, as DCO deems necessary, to monitor compliance with his probationary terms. (b) Respondent shall comply with all provisions of this Stipulation for Discipline, the Rules of Professional Conduct applicable to Oregon lawyers, and ORS Chapter 9. (c) After Respondent is reinstated to active membership status, he shall maintain an active membership status for the duration of the period of probation. Any failure by Respondent to maintain active membership status for a period of longer than one month during the period of probation shall constitute a basis for the revocation of probation and imposition of the stayed portion of the (d) During the period of probation, Respondent shall attend not less than 8 MCLE accredited programs, for a total of 24 hours, which shall emphasize law practice management, client management, and time management. These credit hours shall be in addition to those MCLE credit hours required of Respondent for his normal MCLE reporting period. (The Ethics School requirement does not count towards the 24 hours needed to comply with this condition.) Upon completion of the CLE programs described in this paragraph, and prior to the end of his period of probation, Respondent shall submit an Affidavit of Compliance to DCO. (e) Throughout the period of probation, Respondent shall diligently attend to client matters and adequately communicate with clients regarding their cases. (f) Each month during the period of probation, Respondent shall review all client files to ensure that he is timely attending to the clients' matters and that he is maintaining adequate communication with clients, the court, and opposing counsel. (g) Ronald H. Elzinga, Bar No. 912606, shall serve as Respondent's probation supervisor (Supervisor). Respondent shall cooperate and comply with all reasonable requests made by his Supervisor that Supervisor, in his sole discre- tion, determines are designed to achieve the purpose of the probation and the protection of Respondent's clients, the profession, the legal system, and the public. Respondent agrees that, if Supervisor ceases to be his Supervisor for 59

any reason, Respondent will immediately notify DCO and engage a new Super- visor, approved by DCO, within one month. (h) Respondent and Supervisor agree and understand that Supervisor is providing their services voluntarily and cannot accept payment for providing supervision pursuant to this Stipulation for Discipline. (i) Beginning with the first month of the period of probation, Respondent shall meet with Supervisor in person at least once a month for the purpose of allowing his Supervisor to review the status of Respondent's law practice and his performance of legal services on the behalf of clients. Each month during the period of probation, Supervisor shall conduct a random audit of ten (10) client files or ten percent (10%) of Respondent's active caseload, whichever is greater, to determine whether Respondent is timely, competently, diligently, and ethically attending to matters. (j) Respondent authorizes his Supervisor to communicate with DCO regarding his compliance or non-compliance with the terms of this agreement, and to release to DCO any information necessary to permit DCO to assess Respondent's compliance. (k) Within seven (7) days of his reinstatement date, Respondent shall contact the Professional Liability Fund (PLF) and schedule an appointment on the soonest date available to consult with PLF's Practice Management Attorneys in order to obtain practice management advice. Respondent shall notify DCO of the time and date of the appointment. (l) Respondent shall attend the appointment with the PLF's Practice Management Attorneys and seek advice and assistance regarding procedures for diligently pursuing client matters, communicating with clients, effectively managing a client caseload and taking reasonable steps to protect clients upon the termina- tion of his employment. No later than thirty (30) days after recommendations are made by the PLF's Practice Management Attorneys, Respondent shall adopt and implement those recommendations. (m) No later than sixty (60) days after recommendations are made by the PLF's Practice Management Attorneys, Respondent shall provide a copy of the Office Practice Assessment from the PLF's Practice Management Attorneys and file a report with DCO stating the date of his consultation(s) with the PLF's Practice Management Attorneys; identifying the recommendations that he has adopted and implemented; and identifying the specific recommendations he has not implemented and explaining why he has not adopted and implemented those recommendations. (n) Respondent shall implement all recommended changes, to the extent reasonably possible, and participate in at least two follow-up reviews with the PLF Practice Management Attorneys. The first follow-up review shall occur six months after the initial appointment, and the second follow-up review shall occur six months after the first follow-up review.

(o) On a quarterly basis, on dates to be established by DCO beginning no later than 90 days after his reinstatement to active membership status, Respondent shall submit to DCO a written Compliance Report, approved as to substance by his Supervisor, advising whether Respondent is in compliance with the terms of this Stipulation for Discipline, including: (1) The dates and purpose of Respondent's meetings with his Supervisor. (2) The number of Respondent's active cases and percentage reviewed in the monthly audit with Supervisor and the results thereof. (3) Whether Respondent has completed the other provisions recommended by his Supervisor, if applicable. (4) In the event that Respondent has not complied with any term of this Stipulation for Discipline, the Compliance Report shall describe the non-compliance and the reason for it. (p) Respondent is responsible for any costs required under the terms of this stipula- tion and the terms of probation. (q) Respondent's failure to comply with any term of this agreement, including conditions of timely and truthfully reporting to DCO, or with any reasonable request of his Supervisor shall constitute a basis for the revocation of probation and imposition of the stayed portion of the suspension. (r) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to DCO on or before its due date. (s) The SPRB's decision to bring a formal complaint against Respondent for unethical conduct that occurred or continued during the period of his probation shall also constitute a basis for revocation of the probation and imposition of the stayed portion of the suspension. (t) In the event of Respondent's noncompliance with any provision of the Stipulation for Discipline, DCO may seek to revoke probation and impose the stayed portion of suspension. (u) Upon the filing of a petition to revoke Respondent's probation pursuant to BR 6.2(d), Respondent's remaining probationary term shall be automatically tolled and shall remain tolled, until the BR 6.2(d) petition is adjudicated by the Adjudicator or, if appointed, the Disciplinary Board.

In addition, on or before July 1, 2021, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $1,301.90, incurred for Respondent's deposition. Should Respondent fail to pay $1,301.90 in full by July 1, 2021, the Bar may thereafter, without further notice to him, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

foreseeable prejudice to his clients during the term of his suspension. In this regard Respondent has arranged for Amanda M. Quatier, Quatier Law, 1935 SE Washington St., Ste 6, Milwaukie, OR 97222, Bar No. 144090, an active member of the Bar, to either take possession of or have ongoing access to Respondent's client files and serve as the contact person for clients in need of the files during the term of his suspension. Respondent represents that Amanda M. Quatier has agreed to accept this responsibility.

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: Siletz Tribal Court (inactive); and Grande Ronde Tribal Court (inactive).

EXECUTED this 17th day of June, 2021. /s/ Lance R. Clark Lance R. Clark OSB No. 032894 EXECUTED this 17th day of June, 2021.

Rebecca Salwin OSB No. 201650

In re: ) ) Complaint as to the Conduct of ) Case No. 21-42 ) MARK COLEMAN, ) ) Counsel for the Bar: Stacy R. Owen

Disposition: Violation of RPC 1.3 and RPC 1.4(a). Stipulation for Discipline. Public reprimand. Effective Date of Order: June 29, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Mark Coleman (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is publicly reprimanded for violation of RPC 1.3 and RPC 1.4(a). DATED this 29th day of June 2021.

Mark Coleman, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 28, 2007, and has been a member of the Bar continuously since that time, having his office and place of business in Clackamas County, Oregon. 63

On April 24, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of RPC 1.3 [diligence] and RPC 1.4(a) [communication] of the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth all relevant facts, violations and the agreed- upon sanction as a final disposition of this proceeding. Facts

In 2016, a client hired Respondent to assist her with a Chapter 13 bankruptcy proceeding. During the course of the representation, the bankruptcy trustee issued two motions to dismiss the matter for failing to provide tax returns. In January 2018, the client sent Respondent her 2016 tax return. Respondent did not provide it to the bankruptcy trustee until March 2018, after being prompted to do so by receipt of the trustee's motion to dismiss for failure to provide the 2016 return. In January 2019, the client sent Respondent her 2017 tax return. In May 2019, the client sent Respondent her 2018 tax return and further correspondence regarding her 2017 return. In August 2019, the bankruptcy trustee filed a motion to dismiss for failure to provide 2017 return. Respondent provided his client's 2017 and 2018 tax returns in September 2019, after being prompted to do so by the bankruptcy trustee's motion to dismiss. There is no evidence that Respondent informed his client about the bankruptcy trustee's motion to dismiss or the withdrawal of that motion after Respondent provided the required return. The client and Respondent communicated in May 2019. The client requested informa- tion from Respondent in July 2019 and August 2019, but he did not respond. In September 2019, the client asked Respondent about her final payment plan. Respondent accessed her case records, but does not recall informing his client that he had done so or reporting what he had found. In December 2019, Respondent contacted the bankruptcy trustee and reported to his client what he had learned. In April 2020, Respondent filed a motion to withdraw from the bankruptcy matter, but the court did not approve his withdrawal until December 2020. Respondent conceded that he did not provide the court with a proposed order until prompted to do so during the Bar's investigation.

Respondent admits that his delay in providing his client's tax returns to the bankruptcy trustee, his delay in researching and reporting to his client regarding her final payment plan, 64

and his delay in filing a proposed order for withdrawal constituted neglect of a legal matter entrusted to him in violation of RPC 1.3. Respondent admits that by not communicating with his client from May 2019 until December 2019, he failed to respond to his client's reasonable requests for information and he failed to keep his client apprised of developments in her case, which constituted a violation of RPC 1.4(a). Sanction

stances.

1. Duty Violated. Respondent violated his duty of diligence in representing a
   client, which includes the obligation to timely and effectively communicate. ABA Standard 4.4.

2. Mental State. Respondent's neglect and failures to communicate with his client
   were knowing. Respondent acted with the knowledge of the nature or attendant circumstances of his conduct, but without the conscious objective or purpose to accomplish a particular result.

3. Injury. Respondent's client suffered actual injury in the form of anxiety and
   frustration when he did not respond to her requests for information. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000); In re Schaffner, 325 Or 421, 426- 27, 939 P2d 39 (1997).

4. Multiple offenses. ABA Standard 9.22(d).
   knowingly fails to perform services for a client and causes injury or potential injury to a client. ABA Standard 4.42(a). Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. ABA Standard 4.43. 65

Under Oregon case law, generally, lawyers who knowingly neglect a legal matter or fail to keep clients informed are suspended. In re Snyder, 348 Or 307, 232 P3d 952 (2010). In the matter of In re Redden, the Oregon Supreme Court noted that attorneys who knowingly neglect a client's legal matter are generally sanctioned with 60-day suspensions. 342 Or 393, 401, 153 P3d 113 (2007) (court so concluded after reviewing similar cases); see also, In re Lebahn, 335 Or 357, 67 P3d 381 (2003) (attorney suspended for 60 days for knowing neglect of a client matter and failure to communicate); In re Schaffner, 232 Or 472, 918 P2d 803 (1996) (attorney suspended for 120 days, 60 days of which was attributed to lawyer's knowing neglect of clients' case for several months by failing to communicate with clients and opposing counsel).

Because the factors in mitigation outweigh the aggravating factors, including Respon- dent's lack of prior discipline, the parties agree that Respondent shall be publicly reprimanded for violations of RPC 1.3 and RPC 1.4(a).

his suspension or the denial of his reinstatement.

EXECUTED this 20th day of June 2021. /s/ Mark Coleman Mark Coleman, OSB No. 073526 EXECUTED this 21st day of June 2021. By: /s/ Stacy R. Owen Stacy R. Owen, OSB No. 074826

In re: ) ) Complaint as to the Conduct of ) Case Nos. 19-35 & 19-36 ) NICOLE E. SCHAEFER, ) )

Counsel for the Respondent: Amber Bevacqua-Lynott

Disposition: Order revoking probation and imposing stayed suspension. 60-day suspension. Effective Date of Opinion: August 13, 2021 TRIAL PANEL OPINION AND ORDER Respondent Nicole E. Schaefer stipulated to discipline in December 2019. She agreed to a 90-day suspension with all but 30 days stayed pending successful completion of a three- year probation. The stipulated discipline arose from misconduct that included, among other things, false or misleading statements about her services on websites she operated. One of the stipulated conditions of her probation is that she not be subject to new charges approved by the State Professional Responsibility Board (SPRB) based on new misconduct that occurred or continued while she was on probation. It is undisputed that the SPRB approved the filing of new charges against her on March 6, 2021, based again on allegedly false and misleading statements she made on one of the same websites. The Oregon State Bar (Bar) has filed a petition to revoke Respondent's probation under BR 6.2(d). Pursuant to that same rule, Respondent was ordered to appear and show cause why her probation should not be revoked. A trial panel was appointed consisting of the Adjudicator, Mark A. Turner, attorney member Christopher H. Kent, and public member JoAnn Jackson. A videoconference hearing was held on May 28, 2021. The Bar appeared through counsel, Rebecca Salwin. Respondent personally appeared, and was represented by attorney Amber Bevacqua-Lynott. The parties presented evidence and argument. After considering the parties' submissions and presentations, and as explained in more detail below, the trial panel unanimously concludes that the Bar has sustained its burden of proving by clear and con- vincing evidence that Respondent has violated a material term of her probation. Accordingly, her probation is revoked, and she is suspended for the remaining 60 days of her stipulated suspension effective 30 days from the date of this order. 67

FACTS AND ANALYSIS On May 16, 2019, Respondent was charged with violating four Oregon Rules of Professional Conduct in two matters. Ex. 1. On December 4, 2019, Respondent and Disci- plinary Counsel's Office (DCO) entered into a Stipulation for Discipline pursuant to BR 3.6(c) for violation of RPC 7.1 (communication concerning a lawyer's services) and RPC 8.1(a)(1) (knowingly making a false statement of material fact to a disciplinary authority) in one matter, and RPC 1.1 (failure to provide competent representation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice) in another. The stipulation recited that Respondent made multiple misrepresentations on websites and social media, including a site she operated called LetsUntieTheKnot.com. Ex. 1 at 5-7. She falsely claimed she had handled over 19,000 divorces, when she had only been in practice for approximately four years. She also made up client testimonials on her websites from non- existent clients. The stipulation suspended Respondent for 90 days, with 60 days stayed pending successful completion of a three-year probation. Respondent's period of probation began on December 9, 2019, and was scheduled to end on December 8, 2022. In the stipulation, Respondent agreed to a number of conditions, including, "The SPRB's decision to bring a formal complaint against her for ethical misconduct that occurred or continued during the period of her probation shall also constitute a basis for revocation of the probation and imposition of the stayed portion of the suspension. . . ." New charges relating to statements on the LetsUntieTheKnot.com website were approved by the SPRB on March 6, 2021. Exs. 13, 14. The SPRB may authorize the filing of a formal complaint only after a finding that probable cause exists to believe the violations occurred. BR 2.6. At a hearing to revoke probation, BR 6.2(d) provides that Disciplinary Counsel has the burden of proving by clear and convincing evidence that the attorney has violated a material term of probation. The evidence is undisputed that the SPRB has authorized the filing of a formal complaint against Respondent for ethical misconduct that occurred or continued during the period of her probation. Respondent has violated a term of her probation. The Bar also presented testimony substantiating the fact that this term of probation is material. Angela Bennett, Assistant Disciplinary Counsel, testified that avoiding new charges from the SPRB is a standard condition of probation. Tr. at 27. She confirmed that the condition is a material one, explaining, "[I]f somebody is on probation and then agrees to, you know, a remedial program and then engages in misconduct thereafter or if the misconduct has been occurring, continues that misconduct, it looks like the probation program isn't working for whatever reason." Tr. at 27-28. Incurring new charges of ethical misconduct is clearly antithetical to successful completion of a term of probation. Respondent correctly notes that revocation of probation is not automatic upon a showing that a condition of probation was violated. In re Cohen, 330 Or 489, 509, 8 P3d 953 (2000). In Cohen the court stated that if revocation of the respondent's probation was not mooted by the expiration of the probationary term, the respondent's failure "to stay current on a single case out of about 130 cases" did not merit imposition of the previously stayed 120- day suspension when the lawyer had "complied with the terms and conditions in every [other] 68

respect." Id. The court did not consider this single instance to be a material breach of the terms of probation. We find the current case to be markedly different from Cohen. Here, Respondent has been newly charged with ethical misconduct of the same type for which she was sanctioned under the terms of the stipulation. Appropriate discipline deters unethical conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992). That goal has not been accomplished here. Respondent violated a material term of her probation involving probable cause that she has continued to engage in the same type of deceptive practices that resulted in the stipulated discipline. We find that this is a violation of a material condition of her probation that merits imposition of the remaining 60-day term of suspension. Respondent argues that fundamental fairness dictates that her probation should not be revoked. She first contends that the Bar should have notified her of the current problems with her website when it was prosecuting the charges that resulted in the stipulation. Respondent essentially argues that it was the Bar's duty to discover the alleged misconduct during its investigation, not hers to make sure her websites were free of further false statements that may violate RPC 7.1. Respondent cites no authority for the proposition and we reject it. Respondent also argues that her alleged misconduct resulting in the new charges, if proved, would not justify the imposition of a 60-day suspension using a sanctions analysis under the ABA Standards for Imposition of Lawyer Discipline and Oregon case law. That is not the question before us. What sanction, if any, would be appropriate for the newly alleged misconduct is a matter for a future trial panel that is able to assess the charges under a clear and convincing evidentiary standard and conduct the sanctions analysis on a full record. The question before us is whether to revoke Respondent's current stipulated probation, thereby resulting in her serving the remainder of her 90-day suspension. We must begin with the premise that, by stipulating to the 90-day suspension for her prior misconduct, Respondent has admitted that a 90-day suspension was appropriate for her prior actions, regardless of any future misconduct that might be alleged or proved. It is not unfair to impose the remaining term of a suspension that Respondent freely agreed to. The Bar was willing to stay a substantial portion of the original suspension on the conditions set forth in the stipulation. Respondent accepted the risk of having to serve the full 90-day suspension if she was unable to fulfill those conditions. As noted, BR 6.1 requires that the condition breached must be "material" in order to justify a revocation. There are many conditions in the stipulation that could be considered less than material, as in Cohen. But the condition regarding avoiding future formal charges from the SPRB is decidedly material. The Bar also presented evidence at the hearing regarding Respondent's newly-alleged misconduct. Respondent, in turn, sought to show the allegations were without merit. We will not analyze those presentations here. It is not our role to pass on the merits of the SPRB's decision to charge Respondent or the ultimate outcome of those charges. The fact that new charges have been authorized is in and of itself the condition of probation that has been breached. Since we find the condition to be material, our inquiry is completed. Accordingly,

ORDER IT IS HEREBY ORDERED that the Bar's BR 6.2 petition to revoke Respondent's probation is granted and Respondent is suspended for the remaining 60 days of her stipulated term of suspension, the suspension being effective 30 days from the date of this order. Respectfully submitted this 14th day of July 2021. /s/ Mark A Turner /s/ Christopher H. Kent Christopher H. Kent, Trial Panel Member /s/ JoAnn Jackson JoAnn Jackson, Trial Panel Public Member

Cite as In re Conry, 35 DB Rptr 71 (2021) Cite full opinion as 368 Or 349 (2021)

In re: ) ) ) BRIAN CONRY, ) ) (OSB 18-104; SC S067502) En Banc Argued and submitted January 28, 2021. David J. Elkanich, Buchalter, A Professional Corporation, Portland, argued the cause and filed the briefs for respondent. Also on the briefs were Trisha Thompson and Peter R. Jarvis, Holland & Knight LLP, Portland.

Respondent is publicly reprimanded. A dissatisfied former client of respondent Brian Conry posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that client had been convicted of two crimes, which he specifically identified. As to one review, respondent also disclosed client's full name. The Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 1.6, for disclosing information relating to the representation of a client. A trial panel of the Disciplinary Board agreed, rejecting respondent's assertions either that the information was not within the scope of the rule, or that he was privileged to disclose it under one of the rule's exceptions. The trial panel concluded that respondent should be suspended for 30 days, and respondent sought review from this court. We agree with the trial panel in part, but we conclude that respondent should be publicly reprimanded rather than suspended.

Cite as In re Long, 35 DB Rptr 72 (2021) Cite full opinion as 368 Or 452 (2021)

In re: ) ) ) ANDREW LONG, ) ) (OSB 17-79, 17-86, 17-87, 17-88, 18-09, 18-31, 18-32, 18-33, 18-64, 18-75, 18-76, 18-77, 18-86, 18-87, 18-88, 18-129, 18-170; SC S067095) En Banc Argued and submitted March 16, 2021. Andrew Long, Portland, argued the cause and filed the briefs on behalf of himself.

Respondent is disbarred, effective 60 days from the date of this decision. In this lawyer discipline case, a trial panel of the Disciplinary Board found, by clear and convincing evidence, that respondent had committed 50 violations of the Rules of Profes- sional Conduct (RPC) by, among other things, intentionally converting client funds, failing to communicate with clients, neglecting matters, failing to refund unearned fees, and failing to cooperate with the Oregon State Bar's investigations. The trial panel concluded that respondent should be disbarred. On review in this court, respondent challenges the trial panel's con- clusions and contends that disbarment is not appropriate. We agree with the findings and conclusions of the trial panel, subject to exceptions noted below, and order that respondent is disbarred from the practice of law.

In re: ) ) Complaint as to the Conduct of ) Case Nos. 20-27, 20-28, and 20-29 ) JESSICA LEE MOLLIGAN, ) )

Disposition: Violation of RPC 1.4(a), RPC 1.15-1(a), RPC 1.16(c), RPC 1.16(d), RPC 8.1(c)(4), and RPC 8.4(a)(4). Stipulation for discipline. 120-day suspension. Effective Date of Order: October 4, 2021

Jessica Lee Molligan (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 120-days, effective 60 days from the date that the stipulation is approved by the Disciplinary Board, for violations of RPC 1.4(a), RPC 1.15-1(a), RPC 1.16(c), RPC 1.16(d), RPC 8.1(c)(4), and RPC 8.4(a)(4). DATED this 5th day of August, 2021.

Jessica Lee Molligan, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on September 21, 2000, and has been a member of the Bar continuously since that time, having her office and place of business in Multnomah County, Oregon.

On July 9, 2020, a formal complaint was filed against Respondent pursuant to the RPC 1.4(a), RPC 1.16(c), RPC 1.16(d), RPC 8.1(c)(4), and RPC 8.4(a)(4) of the Oregon Rules of Professional Conduct. On July 15, 2021 an amended formal complaint was filed to add a violation of RPC 1.15-1(a). The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Case No. 20-27 - Gutierrez-Cabanas Facts

In 2018, Maria Gutierrez-Cabanas (Maria) and her husband, Jose Gutierrez-Solis (Jose), retained Respondent for a political asylum and deportation case involving Jose. Respondent entered into a Legal Services Agreement with Jose and Maria, which recited that Respondent would represent them in connection with immigration and related matters and be paid a refundable, flat fee of $1,500. Jose and Maria paid Respondent $500, and a charity, Latino Network, paid Respondent $1,000 on their behalf.

Under federal regulations, "[w]ithdrawal or substitution of an attorney or representative may be permitted by an Immigration Judge during proceedings only upon oral or written motion submitted without fee." 8 C.F.R. § 1003.17(b).

In February 2019, Jose and Maria told Respondent that they were terminating her representation. Respondent did not move to withdraw from representation, but she ceased representing Jose and Maria or performing legal work on their behalf.

At the time she was terminated, Respondent still held unearned funds on behalf of Jose and Maria in her lawyer trust account. Respondent did not maintain complete records of their account funds. She did not know the final account balance for their funds once she was 74

terminated. Respondent did not refund any unearned fees to either her clients or to Latino Network. Violations (Gutierrez)

Respondent admits that, by her conduct aforementioned in paragraphs 5 through 8, she violated Rule of Professional Conduct (RPC) 1.15-1(a) [complete records of client trust account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation]; RPC 1.16(c) [failure to comply with applicable law requiring notice to or permission of a tribunal when terminating a repre- sentation]; and RPC 1.1.6(d) [failure to take reasonably practicable steps to protect her clients' interests upon the termination of the representation]. Case No. 20-28 - Ross Facts

April Ross (Ross) retained Respondent for a dissolution matter in April 2018. Opposing counsel served a request for production of documents (RFP) that included a deadline of May 24, 2018, for Respondent to produce responsive documents. On May 3, 2018, Ross emailed Respondent and opposing counsel a number of responsive documents, but Respondent instructed opposing counsel not to access them. Respondent did not respond to the RFP by May 24, 2018, nor did she advise Ross to provide her with specific additional documents for production.

After attempting to confer with Respondent regarding Ross's response to the RFP in June, July, August, and September 2018, a number of documents remained outstanding. Opposing counsel filed a motion to compel production of documents.

The court set the motion for a hearing for November 26, 2018, but neither Respondent nor her client appeared, and Respondent had not advised her client to appear. The same day as the hearing, the court entered an order granting the motion to compel in its entirety, imposing a deadline of December 17, 2018, and outlining specific, substantive sanctions that would be imposed for each category of documents if not timely produced. Respondent did not inform Ross until four days before the ordered production was due. Although Ross rushed to provide documents to Respondent within the deadline, Respondent did not produce most of the required disclosures until the evening before trial, January 9, 2019, at about 4:00 p.m.

On May 7, 2019, Respondent's opposing counsel filed a "Statement for Attorney Fees and Costs for Respondent Pursuant to ORCP 68," seeking to recover attorney's fees and costs from Ross. The statement was based, in part, on discovery efforts. The court granted it, 75

awarded $10,000 in attorney's fees against Ross, and found that Ross took unreasonable positions causing an undue expenditure of attorney time. Violations (Ross)

Respondent admits that, by her conduct in aforementioned paragraphs 10 through 13, she violated RPC 1.4(a) [failure to keep her client reasonably informed about the status of a matter and promptly comply with reasonable requests for information]; and RPC 8.4(a)(4) [engaging in conduct that is prejudicial to the administration of justice]. Case No. 20-29 - SLAC Facts

On August 9, 2019, Respondent entered into a State Lawyers Assistance Committee (SLAC) monitoring agreement that required, among other things, for Respondent to abstain from alcohol consumption, to submit attendance logs from recovery support group meetings through the Oregon Attorney Assistance Program (OAAP), and to submit to random substance- use testing.

From mid-August until early November, Respondent partially complied with the agreement, but continued drinking alcohol and did not attend or submit attendance logs for recovery group meetings through OAAP.

In late November 2019, Respondent told her SLAC monitor that she was taking the week off from checking in daily in for randomized drug testing. On December 2, 2019, Respondent emailed her SLAC monitor that she was terminating her agreement with SLAC. Respondent then stopped reporting to her SLAC monitor or checking in daily for randomized substance-use testing. Violations (SLAC)

Respondent admits that, by her conduct in aforementioned paragraphs 15 through 17, she violated RPC, she violated RPC 8.1(c)(4) [failure to participate in or comply with a remedial program established by SLAC or its designees]. Sanction

stances.

1. Duty Violated. Respondent violated duties owed to the Gutierrezes to preserve and promptly return client property and funds and her duty as a professional through improper withdrawal from representation. ABA Standards 4.1 and 7.0. She violated her duty of diligence to Ross by failing to inform her on the status of her discovery, and violated her duty to the legal system by failing to expedite litigation and obey an obligation under the rules of a tribunal. ABA Standards 4.4 and 6.2. She violated her duties to the profession to comply with SLAC. ABA Standard 7.0. particular result. ABA Standards at 3. "Knowledge" is the conscious awareness

of care that a reasonable lawyer would exercise in the situation. Id. Here, Respondent terminated SLAC knowingly. Respondent negligently neglected her duties in the Ross and Gutierrez matters. Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Respon- dent injured the Gutierrezes by denying them use of their funds for several months. Respondent injured Ross because her mishandling of discovery led to monetary sanctions against Ross. Respondent also injured the opposing party in the Ross matter, by causing him to expend additional resources trying to obtain discovery, and receiving much of it no sooner than the eve of trial.

1. A prior record of discipline. ABA Standard 9.22(a). Respondent has a
   prior admonition for improper IOLTA management and record keeping. A letter of admonition constitutes prior discipline if it was for similar misconduct and received by the lawyer before the misconduct at issue. See In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018) (citing In re Cohen, 330 Or 489, 499, 8 P3d 953 (2000); In re Jones, 326 Ore. 195, 200, 951 P2d 149 (1997)).

2. Vulnerability of victim. ABA Standard 9.22(h). Jose Gutierrez was
   facing deportation and both Gutierrezes were financially vulnerable. April Ross was financially vulnerable and living in her car during her dissolution.

Respondent has been licensed since 2000.

1. Indifference to making restitution. ABA Standard 9.22(j).
2. Full and free disclosure to disciplinary board or cooperative attitude Under the ABA Standards, suspension is generally appropriate when a lawyer knows or should know that she is dealing improperly with client property and causes injury or potential injury to a client; while a reprimand is generally appropriate when a lawyer is negli- gent in dealing with client property and causes injury or potential injury to a client. ABA Standards 4.12 and 4.13. Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to the client, or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. ABA Standard 4.42 Suspension is generally appropriate when a lawyer knows that she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding; while a reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding. ABA Standards 6.22 and 6.23. the public, or the legal system. ABA Standard 7.2

Failure to comply with SLAC, combined with neglecting client matters, typically results in a several-month suspension with reinstatement proceedings. See, e.g., In re William

1. Wyllie, 326 Or 447, 952 P2d 550 (1998) (one-year suspension ordered for attorney who failed to cooperate with SLAC's remedial program for his alcoholism, and who engaged in conduct prejudicial to the administration of justice); In re Mariel Marjorie Ettinger, 27 DB Rptr 76 (2013) (2-year suspension imposed by trial panel for attorney who failed to respond to SLAC and who neglected multiple client matters, among other misconduct); In re Matthew C. Daily, 31 DB Rptr 155 (2017) (stipulated 180-day suspension with formal reinstatement proceedings, for attorney who violated his SLAC agreement, failed to return unearned client funds to one client, and failed to communicate with another client or to DCO).

Respondent shall be suspended for 120 days, for violation of RPC 1.4(a), RPC 1.15-1(a), RPC 1.16(c), RPC 1.16(d), RPC 8.1(c)(4), and RPC 8.4(a)(4), the sanction to be effective 60 78

days after approval by the Disciplinary Board. The parties further agree that Respondent will be required to apply for reinstatement under BR 8.1 ("Formal Reinstatement"), which requires action by the Supreme Court.

In addition, on or before September 1, 2021, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $1,098.80, incurred for Respondent's deposi- tion. Should Respondent fail to pay $1,098.80 in full by September 1, 2021, the Bar may thereafter, without further notice to her, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

dent has arranged for Michael S. Scott, an active member of the Bar, to either take possession in need of the files during the term of her suspension. Respondent represents that Michael S. Scott has agreed to accept this responsibility.

July 29, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties 79

EXECUTED this 4th day of August, 2021. /s/ Jessica Lee Molligan Jessica Lee Molligan, OSB No. 001823 EXECUTED this 4th day of August, 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-41 ) THOMAS O. CARTER, ) )

Counsel for the Respondent: Anthony A. Buccino Disposition: Violation of RPC 5.5(a) and ORS 9.160(1). Stipulation for Discipline. Public reprimand. Effective Date of Order: August 5, 2021

Thomas O. Carter (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is publicly reprimanded for violation of RPC 5.5(a) and ORS 9.160(1). DATED this 5th day of August, 2021.

Thomas O. Carter, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon in September 1966, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon. 81

On April 24, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of RPC 5.5(a) of the Oregon Rules of Professional Conduct and ORS 9.160(1). The parties intend that this stipula- tion set forth all relevant facts, violations and the agreed-upon sanction as a final disposition Facts

Between December 2019 and March 2020, the Bar sent Respondent five email reminders to file his 2020 IOLTA report by April 1, 2020. The Bar sent the reminders to Respondent's email address on record with the Bar, as previously provided by Respondent. On April 2, 2020, Respondent was administratively suspended and notified by email due to his failure to timely file his 2020 IOLTA report. At all relevant times, Respondent maintained an IOLTA account, and on April 3, 2020, Respondent emailed the Bar's Regulatory Services Coordinator, Brandi Norris (Norris), providing his IOLTA account information. On April 8, 2020, Norris informed Respondent via email of the need to submit a reinstatement form and fee. Respondent did not see Norris's email, so he did not realize that his April 3, 2020, email had not resolved the issue. Prior to his administrative suspension, Respondent had been retained to represent a plaintiff in a minor personal injury matter. Not actually aware of his suspension Respondent continued to work on that matter during his administrative suspension. Respondent filed his client's lawsuit on May 26, 2020, and worked on the matter until its resolution; the final judgment was entered on October 21, 2020. On January 26, 2021, while Respondent was still administratively suspended, he sent a letter for another client seeking workers compensation benefits. On January 28, 2021, Respondent first learned that he had been administratively suspended since April 2, 2020. On January 29, 2021, Respondent sent a letter to Norris seeking to resolve his suspension. On February 1, 2021, Norris sent an email to Respondent to explain his need to file a reinstatement form and pay required fees. On February 4, 2021, despite the fact that Respondent was still administratively suspended and aware of his suspension, he did additional work on behalf of the client seeking workers compensation benefits, by sending a facsimile requesting records from the client's medical provider. Respondent later acknowledged that he had made an error in judgment on February 4, 2021, for which he expressed regret and remorse. On February 8, 2021, Respondent submitted his reinstatement application and required fees. Respondent acknowledged that he had been administratively suspended since April 2, 2020, and explained that he had not regularly checked his email. Respondent disclosed that he had practiced law during his suspension. Respondent was reinstated on May 10, 2021. 82

Respondent admits that, by engaging in unauthorized practice of law, he violated RPC 5.5(a) and ORS 9.160(1). Sanction

stances.

1. Duty Violated. Respondent violated his duty owed as a professional through his unauthorized practice of law. ABA Standard 7.0.

lawyer would exercise in the situation. Id. Here, Respondent acted negligently between April 2, 2020, and January 28, 2021, when he learned of his suspen- sion, but he acted knowingly on February 4, 2021. Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Based upon the available evidence, there was the potential for injury to Respondent's clients through Respondent's unauthorized practice of law.

1. Aggravating Circumstances. The aggravating circumstance includes:
   Respondent was licensed to practice in Oregon in 1966.

2. Remorse. ABA Standard 9.32(l). Respondent expressed remorse for his
   conduct.

knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. ABA Standard 7.2. Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. ABA Standard 7.3.

Oregon decisions support suspensions for knowingly practicing while suspended. In re Jones, 308 Or 306, 779 P2d 1016 (1989) (imposing a 6-month suspension for knowingly assisting a non-lawyer in unlawful practice of law); In re Butler, 324 Or 69, 73 n 2, 921 P2d 401 (1996) (referencing similar conduct by the attorney in an earlier proceeding, in which the court had approved a stipulation for discipline suspending the attorney for 90 days for filing an answer to a complaint in Nebraska when he was not authorized to practice law in that state); In re Kenney, 28 DB Rptr 269 (2014) stipulation; In re Foster, 27 DB Rptr 163 (2013) trial panel opinion; In re Johnson, 20 DB Rptr 223 (2006) trial panel opinion. The Bar has stipulated to public reprimands for attorneys who have acknowledged practicing law while they were unaware of being suspended. In the matter of In re Rose, an attorney unknowingly practiced law seven months, during which time she worked on multiple client matters and billed approximately 850 hours. In re Rose, 33 DB Rptr 308 (2019). In the case of In re Bassett, 16 DB Rptr 190 (2002), an attorney practiced law for 15 days after he was suspended retroactively because he paid his otherwise timely PLF assessment with a non- sufficient funds check. Bassett sought reinstatement the same day he received notice of the suspension. In the matter of In re Schmidt, 2 DB Rptr 97 (1988), an attorney who was administratively suspended for one month engaged in settlement negotiations on one client matter while suspended.

Consistent with the ABA Standards and Oregon case law, the parties agree that, despite Respondent's instance of knowing misconduct, Respondent shall be reprimanded for violating RPC 5.5(a) and ORS 9.160(1), particularly because the mitigating factors, including Respondent's lack of prior discipline during his long Bar membership, outweigh the aggra- vating factor. The sanction will be effective immediately after this stipulation is approved.

April 24, 2021, and June 5, 2021. 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 2nd day of August 2021. /s/ Thomas O. Carter Thomas O. Carter, OSB No. 660275 /s/ Anthony A. Buccino Anthony A. Buccino, OSB No. 750571 EXECUTED this 2nd day of August 2021. By:/s/ Rebecca Salwin

In re: ) ) Complaint as to the Conduct of ) Case Nos. 19-28, 19-88, & 20-08 ) KEVIN ELLIOTT PARKS, ) )

Natasha Voiloshina, Public Member Disposition: Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.16(d), and RPC 8.1(a)(1). Trial Panel Opinion. 240-day Effective Date of Opinion: September 25, 2021 The Oregon State Bar (Bar) charged respondent Kevin Elliott Parks with violating 14 Rules of Professional Conduct involving three separate client matters. The charges include neglect and failure to communicate as to each matter and, variously, mishandling of client funds, failure to properly withdraw, and providing knowingly false statements to regulatory authorities. The Bar asks us to impose an eight month suspension. For the reasons set forth below, we find that the Bar has established its case in each respect and we order that Respon- dent be suspended for eight months. PROCEDURAL POSTURE The Bar filed an amended formal complaint on June 23, 2020. Respondent was personally served on July 20, 2020. Respondent filed an answer on August 17, 2020. Trial was set to begin July 28, 2021. On March 18, 2021, the Bar filed a motion to compel discovery after Respondent failed to respond to discovery requests. Respondent filed no opposition to the motion. On March 30, 2021, the Adjudicator granted the motion to compel and ordered Respondent to produce documents by April 7, 2021. Respondent did not obey the order, and failed to produce any documents or provide any response to the Bar. The Bar filed a motion for discovery sanctions on April 14, 2021. Again, Respondent filed no opposition to the motion. On April 28, 2021, the Adjudicator granted the motion for 86

discovery sanctions. Respondent's answer was stricken. Respondent is thus in default. In this circumstance, we treat the factual allegations against Respondent as true. BR 5.8(a); see also In re Magar, 337 Or 548, 551-53, 100 P3d 727 (2004); In re Kluge, 332 Or 251, 253 27 P3d 102 (2001). Our task is first to determine whether the facts alleged establish the disciplinary rule violations charged by the Bar. If we so conclude, we then determine the appropriate sanction. See In re Koch, 345 Or 444, 447, 198 P3d 910 (2008). FACTS Earnshaw and Stoy Matter - Case No. 19-28 Yvonne C. Earnshaw and Christopher Stoy retained Respondent on March 22, 2018 to represent them in a landlord/tenant dispute. ¶3. Approximately two months later, Respondent 1filed a lawsuit on their behalf, Case No. 18CV22675, in Multnomah County Circuit Court. Id. In early October 2018, Respondent and counsel for the defendants, Nathan Pogue, set a deposition for October 31, 2018, and agreed to set an arbitration hearing on November 30,

1. ¶4. On October 12, 2018, Earnshaw delivered documents to Respondent requested by defendants. Id. Around this time Respondent stopped communicating with Earnshaw and Stoy and stopped working on their case. ¶¶5-6. He did not tell them that he would no longer represent them, nor did he tell Pogue he was no longer working on the case. Id. Respondent failed to provide discovery to Pogue and failed to advise his clients to do so. ¶6. He did nothing to reset the October 30, 2018 deposition and told neither his clients nor Pogue anything about the status of the deposition. Id. On October 18, 2018, Earnshaw emailed Respondent, asking whether he had reviewed the documents she had provided and whether the deposition would occur on October 30, 2018. ¶9. She received no response so she emailed Respondent again on October 25, 2018, with the same questions, and then again on October 30, 2018, asking if the deposition was occurring that day and about the case's status. Id. Earnshaw heard nothing from Respondent in answer to these questions. Id. Respondent also failed to reply to opposing counsel's attempts to contact him on October 23, 2018, October 31, 2018, and November 6, 2018. ¶6. Opposing counsel filed a motion to compel production of documents. Respondent filed no response on behalf of his clients and failed to inform them of the motion. Id. Opposing counsel filed a motion to exclude Respondent's clients' evidence from the arbitration hearing set for November 30, 2018. Respondent failed to tell his clients that the motion had been filed, failed to respond to the motion, and failed to tell his clients that the arbitrator granted the motion. Id. Respondent failed to advise the court or the arbitrator that he had withdrawn from representing his clients, failed to advise opposing counsel that he would not appear at the arbitration hearing, and failed to prepare for or appear at the arbitration hearing. Id. Respondent never told his clients the date of the arbitration hearing nor did he respond to Earnshaw's telephone calls on November 2, 2018, November 5, 2018, November 14, 2018, All paragraph references are to the Amended Formal Complaint. 1 87

and November 15, 2018. ¶¶6, 9. Earnshaw and Stoy did not learn of the date of the arbitration hearing until it had already been held without them. ¶9. After Earnshaw and Stoy hired new counsel in early December 2018, Respondent failed to communicate with them or their counsel, failed to provide counsel with a complete copy of Respondent's client file, and failed to surrender papers and property to which Earnshaw and Stoy were entitled, including original documents given to him, as well as any notes and attorney work-product. ¶¶6, 13. Bailey Matter - Case No. 19-88 On or about September 5, 2017, pursuant to an hourly fee agreement, Respondent was hired to defend George Bailey in a suit filed against him in Clackamas County Circuit Court, Case No. 17CV31289. ¶16. Bailey paid Respondent a $2,000 retainer. Id. Respondent thereafter failed to take substantive action on behalf of his client in the litigation, including failing to file an answer and counterclaims, failing to pay the first appearance fee, and failing to file a substantive response to plaintiff's statement of attorney fees. ¶17. Respondent did not 2inform his client that he failed to file an answer or counterclaims or that he did not intend to make an appearance or defend the litigation. ¶20. Respondent also did not notify his client that he failed to oppose plaintiff's attorney fee statement. Id. Respondent failed to notify his client about a hearing on plaintiff's statement of attorney fees. ¶17. Respondent failed to appear at that hearing and did not tell his client that fact. ¶¶17, 20. Respondent never told his client that the court awarded a judgment for attorney fees to plaintiff. ¶17. When plaintiff filed a supplemental statement of attorney fees, Respon- dent never filed a response, and Respondent never told his client that the court entered another judgment against him for additional attorney fees in April 2018. ¶17. From April 2018 until August 2018, Bailey repeatedly inquired of Respondent about his case and Respondent repeatedly failed to provide substantive responses. ¶20. Respondent never told his client when plaintiff sent demands to pay the judgments for attorney fees. ¶17. During his representation of Bailey between September 2017 and August 2018, Respondent also failed to provide his client with copies of the documents filed in the litigation. Id. Mann Matter - Case No. 20-08 On November 24, 2017, pursuant to a written fee agreement, Respondent agreed to represent Rachel Mann in a claim against Mann's former landlord. ¶24. The fee agreement stated a $450 flat fee was "earned by Law Firm upon receipt," but failed to state that the funds The amended complaint makes no mention of what happened between Respondent's 2failure to file an answer and the submission of an attorney fee statement by plaintiff, although

the logical explanation is that plaintiff took a default against Respondent's client, thereby entitling plaintiff to an award of attorney fees as prevailing party. Allowing a default to be

entered against one's client would seem to be an act of neglect as well, but it is not specified in the pleading, and we are limited to the four corners of the amended complaint in assessing the merits of the charges so there is no point in further speculation about the events in the litigation. 88

would not be deposited in Respondent's lawyer trust account. ¶33. The agreement also failed to state that Mann could be entitled to a refund of all or part of the flat fee if she discharged Respondent for any cause and the services for which the fee was paid were not completed. Respondent subsequently collected the $450 fee from Mann but did not deposit those funds into his lawyer trust account. Id. On September 12, 2018, Respondent filed a lawsuit on behalf of Mann in Multnomah County Circuit Court, Case No. 18CV40418. ¶25. Between approximately December 19, 2018, and November 8, 2019, Respondent took no substantive action on behalf of Mann in the litigation. ¶26. The court issued an order dated December 19, 2018 transferring the case to arbitration that Responded failed to advise his client of. Id. He failed to file any response regarding the selection of an arbitrator as requested by the court. Id. He failed to advise his client of the court's notice of pending dismissal for lack of action dated January 17, 2019, for the failure of the parties to select an arbitrator, and he failed to advise his client that the court issued a general judgment of dismissal of her lawsuit dated February 26, 2019. Id. On May 2, 2019, Mann emailed Respondent and received no response. Mann then called Respondent in late June or early July 2019, and Mann emailed Respondent on July 17, 2019, and again on July 23, 2019, and still received no response. ¶29. Mann subsequently learned on her own that the court had dismissed her lawsuit back in February 2019. On or about August 23, 2019, Respondent finally responded to an email from Mann in which she asked him why her case had been dismissed. Id. Respondent failed to take any substantive action after this to reinstate Mann's case despite Mann's request for him to do so. ¶26. Respondent did not tell his client that he did nothing to reinstate her case. Id. From approximately September 2019 until November 2019, Respondent failed to respond to Mann's requests for information regarding his efforts to reinstate her case. ¶29. Mann complained to the Bar on November 6, 2019 about Respondent, alleging, among other things, that his failure to communicate and inattention to her case resulted in the dismissal of her lawsuit and prevented her from recovering any money sought in the lawsuit. ¶39. On December 6, 2019, Mann's complaint was referred to Disciplinary Counsel's Office (DCO). On January 6, 2020, DCO asked Respondent by letter to respond to Mann's allegations regarding dismissal of her lawsuit. Id. In response to DCO's inquires Respondent stated he believed that the "bulk of issues concerning this case" began when the court assigned the case to arbitration. ¶40. Respondent claimed that, though he anticipated the court would assign Mann's case to arbitration, he never learned that the court in fact did so. Id. Respondent made the following representations to the Bar regarding his lack of notice or knowledge about specific actions taken by the court in Mann's case (taken verbatim from the amended formal complaint): With regard to the court's assignment of Mann's case to arbitration and corresponding request for the parties to select an arbitrator in December 2018, Respondent represented: "For reasons I'm not sure of, however, I either did not received (sic) the Court's service of such notice, or I somehow missed it entirely."; 89

With regard to the court's January 17, 2019, notice of pending dismissal for lack of action for the failure of the parties to select an arbitrator, Respondent represented: "Similar to the Court's notice regarding assignment to arbitration and its proposed list of arbitrators, I was not aware of the Court's pending January 17th notice of dismissal."; and With regard to the court's dismissal of Mann's lawsuit, Respondent repre- sented: "Having considered the matter to be waiting on the court for whatever reason, I had not docketed any specific date or deadline for any next/further action. Thus, it was not until receiving a follow up from Ms. Mann, in August 2019, that I became aware that the case had been dismissed." Id. The Bar alleges that one or more of these statements to DCO were false and material to the Bar's inquiry, and Respondent knew at the time of making the statement or statements that one or more of the statements were false and material. Id. ANALYSIS OF THE CHARGES

1. Respondent neglected each of the client matters in violation of RPC 1.3
   RPC 1.3 states that "a lawyer shall not neglect a legal matter entrusted to the lawyer." Neglect occurs from "either a course of neglectful conduct or an extended period of neglect." In re Jackson, 347 Or 426, 435, 223 P3d 387 (2009). An isolated act of ordinary negligence does not run afoul of the rule. Id. Neglect can occur over a short period of time if a matter requires a lawyer to act with urgency. See In re Meyer (II), 328 Or 220, 225, 970 P2d 647 (1999) (attorney violated disciplinary rule by failing to act over a two-month period, where the case required immediate action). Here, Respondent engaged in a course of neglectful conduct in the Earnshaw/Stoy matter when he failed to take substantive actions in the litigation starting in October 2018 regarding discovery and the pending arbitration. Although the period of Respondent's neglect was relatively short, the litigation at that time required prompt action because of deadlines, outstanding discovery issues, motions filed by opposing counsel, and the looming arbitration. Respondent also engaged in a course of neglectful conduct in the Bailey matter when he failed to take action in the litigation between September 2017 and August 2018. Respondent did not file an answer or counterclaims, did not pay the required first appearance fee, did not file an objection to plaintiff's two fee petitions, and did not appear at the March 2018 hearing on plaintiff's first fee petition. Finally, Respondent engaged in a course of neglectful conduct in the Mann matter between approximately December 2018 and November 2019. When Mann's case was assigned to arbitration, Respondent failed to file any response regarding the selection of an arbitrator as required by the court, which led the court to issue a notice of pending dismissal. Respondent then failed to take any action to prevent the dismissal of the lawsuit. Respondent failed to tell Mann her case had been dismissed. When Mann learned that fact six months later she asked Respondent to reinstate the case and he did nothing. We find that Respondent's conduct violated RPC 1.3 in each client matter.

2. Respondent failed to adequately communicate with his clients in each of the
   three matters in violation of RPC 1.4(a) and RPC 1.4(b) RPC 1.4(a) provides: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." RPC 1.4(b) goes on: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." When determining whether a lawyer has violated the provisions of RPC 1.4, we consider such factors as: the length of time between the lawyer receiving information and the lawyer's communication of that information to the client; whether the lawyer failed to respond promptly to the client's reasonable requests for information; and whether the lawyer knew, or a reasonable lawyer would have foreseen, that delay in communication would prejudice the client. In re Graeff, 368 Or 18, 24-25, 485 P3d 258 (2021) citing In re Groom, 350 Or 113, 124, 249 P3d 976 (2011). A lawyer may be required to communicate information immediately to keep a client reasonably informed. Id. In many circumstances, RPC 1.4 places the respon- sibility on the lawyer to initiate the communication. Id. From approximately October 12, 2018, until early December 2018, Respondent failed to keep Earnshaw and Stoy reasonably informed about the status of discovery, the scheduled deposition, the scheduled arbitration, and opposing counsel's motion to exclude evidence. This occurred despite repeated attempts by Earnshaw and Stoy to get information from Respondent via emails and telephone calls in October and November 2018. These were reasonable requests for information. A reasonable lawyer would have foreseen that a failure to communicate at that point would prejudice his clients, up to and including missing the arbitration hearing. Respondent also had an obligation to tell his clients promptly that he no longer planned to represent them or take any action on their behalf. He was also obligated to explain the status and circumstances surrounding the significant litigation events mere weeks away so his clients could make informed decisions regarding their case. Respondent's failings were similar in the Bailey matter. From September 2017 to August 2018, Respondent failed to keep his client reasonably informed about significant issues and events in his case, including Respondent's failure to file an answer and counterclaims, his failure to oppose plaintiff's attorney fee petition, his failure to notify his client of the March 2018 hearing regarding attorney fees, his failure to report his absence from that hearing, his failure to inform his client about the supplemental judgment entered after that hearing or the subsequent supplemental judgment related to an award of additional attorney fees. Between April 2018 and August 2018, Respondent failed to provide substantive responses to repeated and reasonable requests for information. A reasonable lawyer would have foreseen that failing to inform his client of these developments would prejudice his client. This pattern repeated itself in Respondent's handling of the Mann matter. He failed to keep her informed about the status of her lawsuit. He never told her about the court's order transferring the case to arbitration, that the court issued a notice of pending dismissal, or that the court in fact dismissed her lawsuit. He did not respond to his client's calls and emails until his client had discovered that the court had dismissed her lawsuit six months prior. When he did finally respond in August of 2019, he promised to reinstate the case, but kept quiet the fact that he never did so.

The client's requests for information were reasonable, but ignored. The answers he should have given were necessary for the client to make informed decisions about how to move forward. We find that Respondent's failure to communicate in each of the three client matters violated RPC 1.4(a) and RPC 1.4(b).

1. Respondent failed to provide notification of withdrawal and failed to surrender client papers and property in the Earnshaw/Stoy matter in violation of RPC 1.16(d) RPC 1.16(d) states:

"Upon termination of representation, a lawyer shall take steps to the extent

reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, sur- rendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law." Respondent failed to take a number of steps to protect the interests of Earnshaw and Stoy upon his withdrawal from the representation. He never gave notice to his clients, opposing counsel, the arbitrator, or the court of his termination of the representation. After his clients hired new counsel, Respondent failed to communicate with his clients or new counsel, failed to provide new counsel with a complete copy of his client's file, and failed to surrender papers and property that his clients were entitled to receive. We find these failures violated RPC 1.16(d).

1. Respondent collected a fee denominated as earned on receipt without making required disclosures in the Mann matter in violation of RPC 1.5(c)(3) RPC 1.5(c)(3) provides, in relevant part:

"A lawyer shall not enter into an arrangement for, charge or collect . . . a fee

denominated as "earned on receipt," "nonrefundable" or in similar terms unless it is pursuant to a written agreement signed by the client which explains that: (i) the funds will not be deposited into the lawyer trust account, and (ii) the client may discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee if the services for which the fee was paid are not completed." Respondent's fee agreement with Mann stated only that the $450 flat fee portion was

"earned by Law Firm upon receipt," but did not include other required elements. We find that

the Mann fee agreement violated RPC 1.5(c)(3).

1. Respondent failed to hold funds belonging to Mann separate from his own property in violation of RPC 1.15-1(a) and failed to deposit client funds into trust in violation of RPC 1.15-1(c) RPC 1.15-1(a) states:

"A lawyer shall hold property of clients or third persons that is in a lawyer's

possession separate from the lawyer's own property. Funds, including advances for costs and expenses and escrow and other funds held for another, shall be kept in a separate "Lawyer Trust Account" maintained in the jurisdiction where the lawyer's office is situated. Each lawyer trust account shall be an interest bearing account in a financial institution selected by the lawyer or law firm in the exercise of reasonable care. Lawyer trust accounts shall conform to the rules in the jurisdictions in which the accounts are maintained. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation." RPC 1.15-1(c) then states:

"A lawyer shall deposit into a lawyer trust account legal fees and expenses that

have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the fee is denominated as "earned on receipt," "nonrefundable" or similar terms and complies with Rule 1.5(c)(3)." Since Respondent's written fee agreement did not meet the requirements of RPC 1.5(c)(3), he was prohibited from depositing the $450 that he collected from Mann in his operating account. He should have deposited those funds into his attorney trust account. We find that when Respondent deposited Mann's $450 payment into his operating account, he violated RPC 1.15-1(a) and RPC 1.15-1(c).

1. Respondent made a knowingly false statement in connection with a disciplinary matter in violation of RPC 8.1(a)(1) RPC 8.1(a)(1) provides, in relevant part: "A lawyer . . . in connection with a disci-plinary matter, shall not knowingly make a false statement of material fact." To determine whether a lawyer knowingly made a false statement of material fact, we analyze the statement as we would a misrepresentation under RPC 8.4(a)(3) (misrepresentation that reflects adversely on fitness to practice law). In re Nisley, 365 Or 793, 802-03, 453 P3d 529 (2019). To establish a violation, the allegations must show that (1) the statement at issue was false when it was made; (2) Respondent knew it was false at that time; and (3) the statement was material and Respondent knew it was material. Id. (citations omitted). A statement is material under RPC 8.1(a)(1) if it would or could have influenced the Bar in its decision-making about a disciplinary matter. Id.; citing In re Eadie, 333 Or 42, 53, 36 P3d 468 (2001); In re Worth, 336 Or 256, 273, 82 P3d 605 (2003) (false statement to Bar during investigation under former DR 1-102(A)(3) could have affected evaluation of misconduct allegations); In re Brandt/Griffin, 331 Or 113, 139-41, 10 P3d 906 (2000) (in case applying former DR 1-102(A)(3), misstatements were material to Bar's inquiry because they affected the assessment whether to formally investigate). 93

Respondent made a number of written statements to DCO during the investigation of the Mann matter, all set forth in paragraph 40 of the amended complaint. First, Respondent claimed that he either "did not receive" the court's notice assigning Mann's case to arbitration in December 2018 or "somehow missed it entirely." Second, he represented he "was not aware" that the court had issued notice of dismissal on January 17, 2019, for the failure of the parties to select an arbitrator. Third, Respondent stated that he "only became aware that the case had been dismissed" after "receiving a follow up from Ms. Mann, in August 2019." Regarding the dismissal, respondent stated: "Having considered the matter to be waiting on the court for whatever reason, I had not docketed any specific date or deadline for any next/further action." Due to the default, we must accept as true the Bar's allegation that one or more of these statements was false. We must also accept as true the allegation that any false statement Respondent made was material and that Respondent was aware of the falsity and materiality of the statement when made. The elements of the violation are pleaded here, and we find that Respondent violated RPC 8.1(a)(1). SANCTION

make a preliminary determination of sanctions, after which we may adjust the sanction, if appropriate, based on the existence of aggravating or mitigating circumstances. ABA Standard 3.0. The most important ethical duties are those obligations that lawyers owe to their clients. ABA Standards at 5. In all three matters, Respondent violated his duty to act with reasonable diligence and promptness, which includes the obligation to timely and effectively com- municate. ABA Standard 4.4. He also violated his duty to properly handle client property, including his failure to provide Earnshaw and Stoy's new lawyer a complete copy of the client file as well as his failure to place Mann's funds in his trust account. ABA Standard 4.1. Respondent violated his duty as a professional to cooperate completely and truthfully with a disciplinary investigation when he made false statements to the Bar in connection with a disciplinary matter. ABA Standard 7.0; Nisley, 365 Or at 815.

"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 circum- stances of the conduct but without the conscious objective or purpose to accomplish a particular result. Id. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard

Respondent acted knowingly and negligently. He acted knowingly when he failed to communicate with his clients in all three matters. Because his clients repeatedly contacted him about the status of their matters over time, Respondent was aware of his obligation to act on their behalf but chose not to. Thus he acted knowingly regarding his handling of their matters. Respondent acted knowingly regarding his failure to return Earnshaw and Stoy's original documents as part of their client file. Respondent acted negligently regarding the deficient fee agreement signed by Mann and his failure to deposit her $450 in his lawyer trust account. Respondent acted knowingly regarding his false statements to DCO. For purposes of determining an appropriate disciplinary sanction, we take into account both actual and potential injury. ABA Standards at 6; In re Williams, 314 Or 530, 840 P2d 1280 (1992). "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's mis- conduct. ABA Standards at 9. A client sustains actual injury when an attorney fails to actively pursue his client's case. See e.g., In re Parker, 330 Or 541, 546-47, 9 P3d 107 (2000). In the Earnshaw and Stoy matter, Respondent's misconduct prevented his clients from participating in the arbitration. It caused them to have to hire new counsel in the middle of the case. Respondent failed to provide the new attorney with the complete client file. We find it highly likely that the clients suffered uncertainty, anxiety and aggravation due to Respondent's neglect and failure to communicate. These are all recognized as actual injuries under the disciplinary rules. In re Snyder, 348 Or 307, 321, 232 P3d 952 (2010). In the Bailey matter, Respondent also abandoned his client in the middle of litigation. No one appeared on Bailey's behalf at the March 12, 2018 hearing in which the court awarded the plaintiff $5,000 in attorney fees. Respondent did not tell his client about the attorney fee award, and interest began accruing. Opposing counsel then pursued--and the court awarded-- a supplemental attorney fee award of $950, which too began accruing interest. The supple- mental award was based, in part, on opposing counsel's time spent trying to get the court to sign the General Judgment and Money Award, which the court declined to do initially because Respondent had not paid a first appearance fee. The court signed the judgment after two months. Bailey accrued a total of about $166 in interest from both attorney fee awards due to Respondent's neglect and failure to communicate. We find it highly likely that Bailey, too, suffered anxiety, uncertainty and aggravation. Respondent's misconduct also apparently caused Bailey to hire an attorney to pursue a malpractice claim. In the Mann matter, Respondent's neglect caused the court to dismiss his client's case. Respondent left his client in the dark about the status of her lawsuit for six months. When she discovered her case was dismissed and confronted Respondent, he said he would fix the situation, but then abandoned the matter altogether. Mann also suffered anxiety, uncertainty and aggravation from Respondent's lapses and silence. Respondent's knowingly false and material statements to the Bar during its investiga-tion of the Mann matter caused injury to the lawyer disciplinary system. See Nisley, 365 Or at 95

815, citing In re Lawrence, 337 Or 450, 472, 98 P3d 366 (2004) (lawyer caused injury to the profession when she failed to be truthful with the Bar). Absent aggravating or mitigating circumstances, the following ABA Standards appear to apply: Suspension is generally appropriate when a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. ABA Standard 4.12. Admonition is generally appropriate when a lawyer is negligent in dealing with client property and causes little or no actual or potential injury to a client. ABA Standard 4.14. We find that a suspension is the presumptive sanction here for the multiple violations pleaded. We find the following aggravating factors recognized by the Standards present here:

1. A pattern of misconduct. ABA Standard 9.22(c). "[A] pattern of misconduct
   does not necessarily require proof of a prior sanction. Rather, that aggravating factor bears on whether the violation is a one-time mistake, which may call for a lesser sanction, or part of a larger pattern, which may reflect a more serious ethical problem." In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018). Respon- dent demonstrated the same pattern of neglect, abandonment, and silence in each of the three client matters here.

2. Multiple offenses. ABA Standard 9.22(d). We have found that Respondent
   violated 14 rules in three client matters.

3. Bad faith obstruction of the disciplinary proceeding. ABA Standard 9.22(e).
   Respondent failed to respond to the Bar's Request for Production of Docu- ments, causing the Bar to file a motion to compel. Respondent ignored the subsequent order compelling production. He offered no defense for his conduct. The Bar contends that Respondent's failure to respond to the Bar's RFP was significant because it requested, among other documents, an accounting of funds related to the Bailey case. In correspondence with the Bar, Bailey's malpractice attorney alleged that Respondent may have converted Bailey's $2,000. Respondent provided Bailey no invoices for work performed nor did he refund any of the funds. Respondent's obstruction of the discovery process in this matter prevented the Bar from determining what Respondent did with the $2,000. 96

Additionally, Respondent's failure to comply with discovery was not an isolated incident. Since DCO first contacted Respondent in February 2019 with inquiries about the Earnshaw and Stoy matter, Respondent consistently failed to timely cooperate with DCO. Between April 2019 and April 2020, DCO filed five petitions seeking Respondent's administrative suspension pursuant to BR 7.1 due to Respondent's failure to respond to DCO inquiries. Two of those petitions pertained to the Earnshaw and Stoy matter, two petitions pertained to the Mann matter, and one petition pertained to the Bailey matter. Each time, after DCO filed its petition, Respondent ultimately provided a response to DCO, thus avoiding an administrative suspension. Respondent's conduct delayed DCO's investigations and caused significant extra work.

1. Refusal to acknowledge wrongful nature of conduct. ABA Standard 9.22(g).
2. Substantial experience in the practice of law. ABA Standard 9.22(i). Respon- dent was admitted to practice law in Oregon in 2009. In mitigation, we find: The Bar asked us to find an additional aggravating factor, a dishonest or selfish motive, ABA Standard 9.22(b). The Bar contended that the fact that Respondent made false statements to Mann and to the Bar constitutes proof of such a motive. We disagree. We do not know what Respondent's motive was for making the false statements. He may have been embarrassed by his failures, for example, and unwilling to admit them. The fact that the conduct itself was dishonest, i.e., involved false statements, does not in itself demonstrate that Respondent's motive was dishonest. Whether this particular aggravating factor applies, however, is of little significance. The aggravating factors we have found significantly outweigh the sole mitigating factor, confirming that a lengthy suspension is the appropriate sanction. Oregon Case Law Oregon cases support a significant suspension. The Oregon Supreme Court has stated:

"We conclude that a lawyer who neglects clients' cases and fails to cooperate with the

disciplinary authorities is a threat to the profession and the public and that that conduct warrants a significant sanction." In re Bourcier (II), 325 Or 429, 437, 939 P2d 604 (1997). The Bar points out that the Oregon Supreme Court typically imposes a presumptive sanction of at least 60 days for knowing neglect standing alone. In re Knappenberger, 337 Or 15, 32-33, 90 P3d 614, 624 (2004); In re Redden, 342 Or 393, 153 P3d 113 (2007) (60-day suspension imposed for single serious neglect despite young, inexperienced lawyer having no prior discipline); In re LaBahn, 335 Or 357, 67 P3d 381 (2003) (60-day suspension for neglect of tort claim and subsequent failure to notify client where aggravating and mitigating factors were balanced). Respondent's case is similar to In re Schaffner, 323 Or 472, 918 P2d 803 (1996), where the court imposed a 120-day suspension. In that case, the lawyer neglected the representation of two clients in the same matter by failing to return phone calls both from his clients and the opposing lawyer, failing to respond to discovery requests, and failing to inform the clients of their scheduled depositions, a motion for sanctions, and an arbitration hearing. Id. at 475. The 97

court imposed a 60-day suspension for knowing neglect." Id. at 481. The court also imposed an additional 60-day suspension for the lawyer's failure to cooperate with the Bar's investigation where the lawyer failed to timely respond to several Bar inquiries regarding the matter. Id. at 475. For comparison, the court imposed a one-year suspension on another lawyer who engaged in conduct involving neglect of a client matter and misrepresentation. In re Butler, 324 Or 69, 921 P2d 401 (1996). The attorney's neglect led to the dismissal of his client's lawsuit with prejudice. Id. at 72. The attorney then failed to inform the client about the dismissal and gave the client false assurances about the case's status. Id. In imposing the one- year suspension, the court emphasized that the lawyer had demonstrated a pattern of similar misconduct spanning about 10 years and involving three separate clients. Id. at 76. The Bar contends that Respondent's case falls between that of the lawyers in Schaffner and Butler. We agree that the misconduct is more serious than that in Schaffner. Respondent's neglect here injured multiple clients in three separate matters and involved a pattern of misconduct between 2017 and 2019. But the Bar concedes that Respondent lacks the disci-plinary history of neglecting clients shown by the lawyer in Butler. The Bar also argues that Respondent's knowingly false and material statements to the Bar, standing alone, warrant a suspension. See Nisley, 365 Or at 817-18. (court imposed a 60- day suspension when lawyer's sole misconduct was providing false statements during a Bar investigation). The Bar asks us to impose a 180-day suspension for the client-related violations--60 days per client matter, and an additional 60-day suspension for Respondent's false and material statements to the Bar, for a total of 240-day (eight month) suspension. We find that this approach is supported by the ABA Standards and Oregon case law, and therefore order that Respondent be suspended for eight months, beginning 30 days after this decision becomes final.

discharge their professional duties. ABA Standard 1.1. A 240-day suspension is appropriate here. Respectfully submitted this 26th day of July 2021. /s/ Tinuade Adebolu Tinuade Adebolu, Trial Panel Member /s/ Natasha Voloshina Natasha Voloshina, Trial Panel Public Member

In re: ) ) Complaint as to the Conduct of ) Case No. 19-110 ) ELAINE D. SMITH-KOOP, ) )

Counsel for the Respondent: Wayne Mackeson

Disposition: No violation of RPC 1.7(a)(2). Trial Panel Opinion. Dismissal. Effective Date of Opinion: August 31, 2021 The Oregon State Bar (Bar) charged respondent with violation of RPC 1.7(a)(2), alleging that she had a personal conflict of interest while representing a client in a dissolution matter. Respondent had represented Larisa Voytyuk in 2007, advising her regarding a prenuptial agreement that barred Voytyuk from receiving spousal support in the event of a divorce. Respondent signed a certification in the agreement that she had advised Voytyuk of its terms and legal significance, and that Voytyuk had acknowledged her understanding of the document. In 2017, Voytyuk again engaged Respondent, this time to represent her in a divorce action seeking spousal support. Voytyuk's husband moved for partial summary judgment based on the prenuptial agreement. Respondent argued, and Voytyuk stated in a declaration, that Voytyuk had signed the prenuptial agreement under duress and had not fully understood it due to language difficulties. The judge handling the divorce decided that Respondent had a personal interest conflict in making these arguments in light of her 2007 certification. The judge told Respondent to withdraw or she would file a Bar complaint. Respondent withdrew. The Bar commenced this action, alleging that Respondent could not have represented Voytyuk in challenging the prenuptial agreement without obtaining informed consent, which Respon- dent had not done. The case was tried over video conference on May 21, 2021, before a trial panel consisting of the Adjudicator, Mark A. Turner, attorney member John T. Bagg, and public member Paul Mark Gehlar. The Bar appeared through counsel, Veronica Rodriguez. Respon- dent appeared and was represented by counsel, Wayne Mackeson. 99

As explained below, after considering the evidence and argument, we find in a two-to- one decision that the Bar failed to prove the charge by clear and convincing evidence. The majority of the trial panel finds that the Bar, and the judge who accused Respondent of the conflict in the first place, fundamentally misread the certification signed by Respondent in

1. The charge here was premised entirely on this misreading of the document and is unsupported once the certification is properly understood. The charges are dismissed. Public member Paul Mark Gehlar separately dissents, finding that the charge was proved by clear and convincing evidence. We address the question of sanction in light of the possibility this decision is reviewed and our decision on culpability is reversed. The Bar contended that the appropriate sanction for the alleged charge is a public reprimand. We unanimously agree that a public reprimand is the proper sanction if the charge were proved. FACTS Voytyuk lived in St. Petersburg, Russia. She met her future husband, Charles Lamb, through an internet service that matched men with Russian women. Lamb traveled to St. Petersburg where he stayed with Voytyuk for a period of time. He also went to Moscow on the trip and spent time with two other women there. Lamb returned to St. Petersburg and told Voytyuk that he wanted her to come to Oregon with him. Voytyuk came to Oregon on a "fiancée visa," planning to marry Lamb. She moved in with him and a wedding date was set in June of 2007. A few days before the wedding, Lamb told Voytyuk that she had to sign a prenuptial agreement (the "Agreement") or else he would not marry her and she would be forced to return to Russia. Lamb presented her with the Agreement that had been drafted by his lawyer. He told Voytyuk that she needed to have the Agreement reviewed by a lawyer. Lamb randomly selected Respondent to advise Voytyuk, apparently picking Respondent's name from the phone book. Lamb and Respondent had no prior relationship. Lamb made an appointment through Respondent's office staff for Voytyuk to meet with Respondent at Respondent's office. Voytyuk is a native Russian speaker. She testified that she had some limited facility with English in 2007, but did not understand many of the words in the Agreement. There was no interpreter present when Voytyuk met with Respondent. Respondent initially met with Voytyuk to review the Agreement, and a second time to sign it. At trial, Voytyuk, who testified with the aid of an interpreter, was asked if she understood the legal significance and consequences of the Agreement at the time she signed it. She said that Respondent had advised her that if Lamb died or they got divorced she would get nothing, but Voytyuk stated that the issue was not a concern of hers because "divorce was the furthest thing from my mind." Tr. at 32-33. Voytyuk testified that prenuptial agreements were uncommon in Russia. Tr. at 52-53. The RECITALS section of the Agreement provided, in relevant part:

"C. Each party has been fully informed of the nature and

extent of the rights being determined, modified, or released by this Agreement. Each party has been advised by independent

legal counsel regarding the legal effect of this Agreement and the waivers contained in it. . . ."

• * * "E. Each party acknowledges not only that he or she has read

and fully comprehended this Agreement and all of its terms, but also that he or she has been afforded a full and complete explanation of all the rights waived, released, or relinquished by this writing. . . ."

"F. Each party specifically acknowledges that he and she

enters into the marriage relation in reliance on the validity of this Agreement, and would not enter into the marriage relation in the absence of this Agreement." Ex. 2. Voytyuk signed the Agreement with these representations on June 12, 2007. Respondent and Voytyuk both confirmed at trial that Voytyuk told Respondent at the time that she understood her explanation of the Agreement. Voytyuk testified as follows

"Q. [By Ms. Rodriguez] So did you tell Ms. Smith-Koop at this March 2017

meeting that you had not understood it when you signed it in 2007?

"A. Yes, exactly. This is exactly what I explained to her, that basically when she

asked me do you understand and I said yes, this was incorrect because in my mind this is what you need to say to sign it and I have to sign it." Tr. at 35. She reiterated this later on re-direct:

"I basically told her that I feel like I didn't tell her the truth when I said back in 2007 that I

understand the agreement. . . ." Tr. at 65. After receiving the express assurance from her client, Respondent signed the provision of the Agreement at issue here, entitled "CERTIFICATION OF LAWYER." It stated, in relevant part:

"I have consulted with Larisa Voytyuk . . . I have fully advised her of her

property rights and of the legal significance of the foregoing Agreement; and . . . she has acknowledged her full and complete understanding of the legal consequences and of the terms and provisions of the foregoing Agreement and has freely and voluntarily executed the Agreement." Ex. 2 (emphasis added). Voytyuk and Lamb were married on June 15, 2007. In 2017, Voytyuk decided to seek a divorce. She met with Respondent on March 1, 2017, to discuss the issue. At the initial meeting, Voytyuk told Respondent for the first time that she had felt pressured by her future husband into signing the Agreement. Ex. 5. In order for Voytyuk to be eligible to claim any of Lamb's social security benefits, the marriage had to last for at least ten years. Accordingly, Respondent and Voytyuk agreed to wait until after June 15, 2017, to file the dissolution petition. The two met again on July 17, 2017, to discuss the matter and Voytyuk repeated her contention that Lamb had pressured her into signing the Agreement. Ex. 7. Respondent prepared the petition for dissolution on August 17, 2017, with input from her client, and filed 101

it in Marion County Circuit Court on August 18, 2017. Ex. 10. At Voytyuk's request, Respon- dent sought spousal support in the petition. In response to the petition, Voytyuk's husband filed a motion for partial summary judgment, arguing that the Agreement precluded an award of spousal support. Ex. 15. In October 2017, Voytyuk met with Respondent in order to prepare a response to the motion. Voytyuk again told Respondent that she had not understood the prenuptial agreement in 2007 and had not signed it voluntarily. Respondent filed an opposition to the motion on October 13, 2017. The response stated that, "Petitioner did not sign the prenuptial agreement voluntarily . . . Petitioner was under duress at the time she signed the agreement, and did not understand English well. . . ." Ex. 17. Voytyuk also signed a declaration in which she stated, "I showed the prenuptial agreement to Ms. Smith-Koop, but I really did not understand it. I did not speak much English at that time because I had very little practice, and I did not understand listening to it. I signed the prenuptial agreement, but not voluntarily." Ex. 17. Oral argument on the motion was scheduled for November 27, 2017. At the direction of the judge hearing the motion, the Honorable Claudia Burton, the argument setting was converted into a status conference. The judge testified that after reviewing the submissions she had concluded that Respondent had a conflict of interest. At the conference, she told Respondent that she must either withdraw or Judge Burton would file a Bar complaint. The judge concluded that Respondent had a personal interest conflict because the arguments she was making about the enforceability of the Agreement put her certification at issue. Respon- dent disagreed because her certification only stated that the client had told her that she understood the agreement, which Voytyuk had done. Tr. at 90. The judge testified at trial that she told Respondent, "And I said the certification didn't say your client told you she understood. It says she understood." Tr. at 109. Respondent notified Voytyuk and withdrew from representation on or about November 30, 2017. Voytyuk was very upset about this turn of events and did not believe she and her lawyer had a conflict. Tr. at 40-41. She briefly hired another lawyer, but ultimately had to proceed pro se. The judge granted the motion for partial summary judgment, rejecting Voytyuk's claim of duress and lack of understanding. In the end, however, Voytyuk was awarded spousal support on another basis argued by Respondent, ORS 108.725(2), which allows the court to award spousal support in spite of a prenuptial agreement barring such an award if denial of support would result in the spouse being eligible for public assistance. ANALYSIS OF THE CHARGE RPC 1.7(a)(2) states:

"Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a current conflict of interest. A current conflict of interest exists if . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

Conflict-of-interest rules are "based upon the concern that, when a lawyer undertakes the representation of a client with interests differing from the interests of the lawyer or the lawyer's other clients, the lawyer's judgment might become impaired or the lawyer's loyalty might become divided." In re Knappenberger, 337 Or 15, 27, 90 P3d 614 (2004) (quoting In re Kluge II, 335 Or 326, 335, 66 P3d 492 (2003)). The Bar argues Respondent violated RPC 1.7(a)(2) when she was retained by Voytyuk to handle the dissolution proceeding and challenge the effect of the Agreement because Respondent had a personal interest conflict. The Bar's argument, taken directly from its trial memorandum, is:

"Respondent violated RPC 1.7(a)(2) when she was retained by Voytyuk to

represent her in her dissolution proceeding and seek spousal support because Respondent represented Voytyuk in the review of the prenuptial agreement that precluded spousal support and she certified that Voytyuk had understood the agreement. As the attorney advising Voytyuk in the review of the prenuptial agreement, Respondent had an obligation to ensure that, despite any language barriers, she explained and informed Voytyuk of the terms and consequences of the agreement before she signed it. When Respondent discovered that she failed to effectively communicate with Voytyuk about the terms and conse- quences of the agreement and that Voytyuk had lied to her about understanding the agreement, Respondent should have realized a conflict was created because Respondent signed the certification in error and Voytyuk could assert a claim against her. There was a significant risk that Respondent's ability to effectively represent Voytyuk could be materially limited." OSB Trial Memorandum at p.

The Bar's argument suffers from the same flaw that caused the judge to believe a conflict existed. The Bar states that "[Respondent] certified that Voytyuk had understood the agreement." Respondent did not certify that fact. Respondent certified that Voytyuk acknowledged she understood the agreement. There is no dispute that Voytyuk expressly told Respondent that she understood the agreement. Voytyuk later revealed that she lied to Respondent when she said this, but the Bar produced no evidence that Respondent should have been aware of this. Absent evidence to the contrary, an attorney is entitled to rely on a client's assurances that she understands what the attorney is explaining. The Bar argues that "when Respondent discovered that she failed to effectively communicate" with her client and that her client had lied to her about understanding the agree- ment, a conflict arose because her client could sue her for signing the Lawyer's Certification in error. We disagree that this would create a claim by the client against the lawyer. By certifying that her client had "acknowledged" her understanding of the Agreement when, in fact, the client had done so, Respondent did nothing actionable. We are aware of no authority that would allow a client to sue a lawyer for relying on a client's assurances when the client was lying. The Bar certainly presented no evidence or authority to support the contention. Similarly, Respondent's certification that her client "has freely and voluntarily exe- cuted the Agreement" is not actionable error on her part. The Bar presented no evidence that Respondent was aware of, or should have been aware of, any duress influencing Voytyuk. Moreover, Judge Burton ultimately held that Voytyuk had not acted under duress. 103

To prove a charge of misconduct involving a lawyer's personal conflict arising from an alleged error on the lawyer's part, "the Bar must show by clear and convincing evidence that the lawyer's error, and the pending or potential liability arising from that error, will or reasonably may affect the lawyer's professional judgment. That conclusion will depend on the facts and circumstances of each case." Knappenberger, 337 Or at 29 (construing former DR 5-101(A)). "'The mere possibility of subsequent harm' does not constitute a significant risk; there must be a 'likelihood that a difference in interests will eventuate.'" In re Spencer, 355 Or 679, 692, 330 P.3d 538 (2014); see also In re Tonkon, 292 Or 660, 666, 642 P2d 660 (1982) (under former DR 5-101(A), at a minimum, there must be a "significant risk" that the lawyer's personal interest would affect his or her advice). In this case we find no actionable error on the part of Respondent that could have affected her judgment. Even if one could claim that Respondent's certification was in error, the Oregon Supreme Court recognizes that, "[m]any errors by a lawyer may involve a low risk of harm to the client or low risk of ultimate liability for the lawyer, thereby vitiating the danger that the lawyer's own interests will endanger his or her exercise of professional judgment on behalf of the client." Knappenberger, 337 Or at 28. Since Voytyuk intentionally misled Respondent into signing the certification, it is hard to imagine a scenario where she could make a viable claim against Respondent for relying on her assurances. Even if one could map out a tenuous claim based on these facts, the risk to Respondent from such a claim is virtually zero, thereby negating its ability to create a conflict of interest implicating the Rules of Professional Conduct. Some mention was made at trial of the possibility that Respondent could be called as a witness in light of her client's declaration statement that she did not understand the Agreement. That possibility is not an issue here. First, Respondent is not charged with a violation of RPC 3.7, which governs a lawyer acting as a witness. A respondent may not be found guilty of a rule violation that was not pleaded. See In re Ellis and Rosenbaum, 356 Or 691, 738, 344 P3d 425 (2015). Second, any testimony Respondent would give would be on an uncontested issue, which is allowed under RPC 3.7(a)(1). Voytyuk admits that she told Respondent she understood the Agreement when she signed it, and that she was lying when she did so. Respondent's testimony would only confirm what Voytyuk admitted to her in the first place. The Bar argues that this case is like In re O'Neal, 34 DB Rptr 176 (2020), where the trial panel found an attorney violated RPC 1.7(a)(2) when she represented a client in a dissolution proceeding after personally obtaining a Family Abuse Protective Act (FAPA) restraining order against him. The respondent attorney had a pre-existing romantic relationship with her client and then began representing him in the dissolution matter. She obtained the FAPA order based on her declaration that the client had become violent during an argument. Opposing counsel in the dissolution matter told the respondent that she intended to call her as a witness adverse to her client since her testimony about the client's violent actions would undercut his request for parenting time. The respondent did not withdraw and was ultimately disqualified by the court. In O'Neal, the respondent attorney had a personal interest in confirming the truth of her sworn statements about her client's behavior, while her client would want to deny or minimize her claim that he had acted violently. The trial panel held that the attorney's judgment might have been impaired by that desire and her loyalty might have been divided. Here, 104

however, Respondent had no interest in contesting her client's claim of duress or lack of understanding because her client's statements did not challenge the truth of Respondent's certification. We conclude that Respondent did not violate RPC 1.7(a)(2). The charge is dismissed. SANCTION Although we dismiss the charge here, we agree with the Bar's analysis of the proper sanction if the charge had been proved. The appropriate sanction under the ABA Standards for Imposing Lawyer Sanctions (ABA Standards), and Oregon case law is the minimum the rules provide, a public reprimand. We conclude in a two-to-one decision that the Bar did not prove the charge by clear and convincing evidence. The charge of violation of RPC 1.7(a)(2) is dismissed. Public member Paul Mark Gehlar has filed a separate dissenting opinion, attached hereto. Respectfully submitted this 29th day of July 2021. /s/ John T. Bagg John T. Bagg, Trial Panel Member DISSENTING OPINION I find the respondent violated the Oregon Rules of Professional Conduct 1.7(a)(2). I find that the Bar proved the violations alleged in its complaint. Therefore, I respectfully dissent from the trial panel opinion. The respondent admits to knowing on October 12th 2017 her client's position on the prenuptial differed from the representation in 2007 when the client signed the prenuptial agreement and the respondent signed the certification. As the Bar contends, this presented a conflict of interest limiting the respondent's ability to advise and represent her client. The respondent should have recognized the conflicts of interest reconciling her advice in 2007 with her statements in the 2017 dissolution and spousal support matter. The potential conflicts include: Exposure to claims from either party to the prenuptial agreement for an error in certification; Exposure to claims from her client for inadequately advising her in 2007; Or becoming a witness in the spousal support matter. In the 2017 marriage dissolution and spousal support case the opposing counsel asserts, ". . . Responsibility for any language translations or lack of understanding falls to Wife's attorney, who's duty was to convey, explain and inform the client. . . ." (OSB Exhibit 19, page 3, emphasis added) This assertion clearly and directly places the respondent's interest in conflict with her client's interest. In her deposition to the Bar respondent answers that this did not raise any concerns of conflict of interest for her (OSB Exhibit 32 line 2-16). The respondent's understanding of what constitutes a conflict of interest seems unduly narrow. As an example, in her deposition, respondent describes her system for determining if 105

a conflict of interest exists: "Well, all of my clients are recorded in my billing system, so we just punch in a name." (OSB Exhibit 32, page 36 lines 6-18.) Such a system does not consider all the associations and considerations included in RPC 1.7. While this doesn't establish a conflict, it does reveal the limitations of her efforts in determining if a conflict existed. The respondent could be called as a witness to establish how she fulfilled her duties to convey, explain and inform her client in the 2007 prenuptial, as she certified having done. The respondent's deposition taken on behalf of the Oregon State Bar (OSB Exhibit 32) illustrates questions she might have encountered. In signing the prenuptial agreement respondent's client acknowledged she understood the agreement and was acting voluntarily. The client's signature is notarized, also noting the signing was acknowledged as voluntary. The Certifications of Lawyers adds another assurance. Each of these certifications comes with differing scope and standards dictated by the responsibilities of their position. The respondent's come with an attorney's obligation to her client and as an officer of the court. The questions in the deposition (exhibit 32, pages 10-18) examine how these responsibilities were addressed by the respondent preparatory to her certification. Not including violation of RPC 3.7 in the Bar complaint does not invalidate considera- tion of the potential for the respondent to be called as a witness in determining if a conflict of interest existed. Since the respondent did not serve as a witness (She withdrew. The ultimately unrepresented client's request for spousal support went in a different direction, resulting in less support than initially sought.) she cannot be charged with 3.7. However, the potential to be called as a witness leads to a conflict of interest as she would have had to comply with RPC 3.7. The client's satisfaction with the respondent's representation is not meaningful because she was not advised of the conflict and how it might affect respondent's representation. Clients deserve representation without conflicts of interest. RPC 1.7(a)(2) demands representation not be materially limited by responsibilities to another client, a former client or a third person or by a personal interest. If a lawyer reasonably believes the lawyer will be able to provide competent and diligent representation, notwithstanding a current conflict of interest, the lawyer may represent that client after obtaining informed consent. In this case respondent did not discuss the conflict of interest with her client, she did not seek informed consent. RPC 1.7 requires preemptive action, anticipating a conflict of interest's limitation on representation. Ideally the conflict is identified before representation commences. However, if it is not anticipated once it becomes evident, the lawyer cannot continue representing the client without obtaining informed consent. /s/ Paul Mark Gehlar Paul Mark Gehlar, Trial Panel Public Member

In re: ) ) Complaint as to the Conduct of ) Case No. 21-56 ) VICKI R. VERNON, ) )

Disposition: Violation of RPC 1.3. Stipulation for Discipline. 180- day suspension. Effective Date of Order: December 31, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Vicki

1. Vernon and the Oregon State Bar, and good cause appearing, Vernon is suspended for 180 days, effective December 31, 2021, for violation of RPC 1.3. DATED this 2nd day of September 2021.

Vicki R. Vernon, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on April 14, 1989, and has been a member of the Bar continuously since that time, having her office and place of business in Washington County, Oregon. 107

On June 5, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of Oregon Rule of Professional Conduct (RPC) 1.3 (neglect of a legal matter). The parties intend that this stipu- lation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition Facts

On May 23, 2019, Respondent represented a client (mother) at a prima facie hearing on the client's motion to modify parenting time and child support in a Stipulated General Judgment of Dissolution of Marriage. The three children of Respondent's client were represented by Theresa Wright (Wright). The father failed to appear for the hearing, and no counsel appeared on his behalf. At the hearing's conclusion, the court issued oral rulings from the bench regarding a variety of issues, including further restrictions on father's parenting time and granting mother's request to move the children out of a particular school district without father's consent. Respondent agreed to draft a supplemental judgment. Thereafter, Respondent failed to finalize and submit the supplemental judgment until approximately March 5, 2020, despite repeated inquiries from Wright during the course of multiple months.

Respondent admits that the roughly nine months it took her to finalize and submit the supplemental judgment to the court was unreasonable and that she neglected a legal matter entrusted to her in violation of RPC 1.3. Sanction

stances.

1. Duty Violated. The most important ethical duties a lawyer owes are to a client. ABA Standards at 5. Respondent violated her duty of diligence and promptness in representing her client. ABA Standard 4.4. 108

gence" 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. Respondent's conduct was knowing. She was consciously aware of the delay in submitting the supplemental judgment to the court, but she failed to prioritize completing the task. Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Based on the available evidence, Respondent's inaction caused her client potential injury in the form of anxiety and frustration when Respondent failed to finalize and submit the supplemental judgment in a timely manner. Respondent's delay also caused potential injury to the father and the children, whose rights were affected by the court's orders.

1. Prior disciplinary offenses. ABA Standard 9.22(a). Respondent has a
   prior admonition from 2006 for neglect of a legal matter. A letter of admonition constitutes prior discipline if it was for similar misconduct and received by the lawyer before the misconduct at issue. See In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018) (citing In re Cohen, 330 Or 489, 498-99, 8 P3d 953 (2000); In re Jones, 326 Or 195, 200, 951 P2d 149 (1997)). The 2006 admonition involved circumstances very similar to those at issue here, where Respondent failed to prepare and submit an order in a timely manner. Respondent has been sanctioned in two prior disciplinary proceedings involving violations of RPC 1.3. Each constitutes a prior disciplinary offense because each sanction preceded Respondent's acts that led to this proceeding and involved similar violations. In re Bertoni, 363 Or at

2. In 2013, Respondent received a 90-day suspension by a trial panel
   for violations of RPC 1.3 and RPC 1.4(a) in connection with two client matters. In re Vernon, 27 DB Rptr 184 (2013). Then in 2015, Respon- dent stipulated to violations of RPC 1.3 and RPC 1.4(a) and a sanction involving a 60-day suspension stayed in lieu of two years of probation. In re Vernon, 29 DB Rptr 12 (2015).

3. Pattern of misconduct. ABA Standard 9.22(c). Respondent's afore- mentioned prior discipline establishes a pattern of misconduct.

4. Substantial experience in the practice of law. ABA Standard 9.22(i).
   Respondent was licensed to practice in Oregon in 1989.

5. Absence of dishonest motive. ABA Standard 9.32(b).

6. Full and free disclosure to disciplinary board or cooperative attitude
   knowingly fails to perform services for a client and causes injury or potential injury to a client or engages in a pattern of neglect causing injury or potential injury to a client. ABA Standard 4.42(a).

Oregon cases support a suspension when a lawyer knowingly neglects a legal matter. In re Redden, 342 Or 393, 401, 153 P3d 113 (2007) (court so concluded after reviewing similar cases); see also, In re Lebahn, 335 Or 357, 367, 67 P3d 381 (2003) (attorney suspended for knowing neglect of a client matter and failure to communicate). The Supreme Court places significant weight in aggravation on prior disciplinary offenses when the lawyer continues to engage in the same misconduct over time. Bertoni, 363 Or at 644-45, citing In re Knappenberger, 340 Or 573, 586, 135 P3d 297 (2006) (internal citation and quotation marks omitted).

Respondent shall be suspended for 180 days for the violation of RPC 1.3, the sanction to be effective December 31, 2021. Though the postponement of sanction is much longer than usual, the parties agree to the delay due to the COVID pandemic and Respondent's high-volume caseload.

foreseeable prejudice to her clients during the term of her suspension. In this regard, Respondent has arranged for Colette Cameron, an active member of the Bar with a business address of 10211 SW Barbur Blvd., Ste 207A, Portland, OR 97219, to either take possession in need of the files during the term of her suspension. Respondent represents that Colette Cameron has agreed to accept this responsibility.

June 5, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties EXECUTED this 30th day of August 2021. /s/ Vicki R. Vernon Vicki R. Vernon, OSB No. 891338 EXECUTED this 31st day of August 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-19 ) LUCINDA R. GIORGETTI, ) )

Counsel for the Respondent: David J. Elkanich Disposition: Violation of RPC 4.2. Stipulation for Discipline. Public Effective Date of Order: September 2, 2021

Lucinda R. Giorgetti and the Oregon State Bar, and good cause appearing, Lucinda R. Giorgetti is publicly reprimanded for violation of RPC 4.2. DATED this 2nd day of September 2021.

Lucinda R. Giorgetti, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on April 21, 1995, and has been a member of the Bar continuously since that time, having her office and place of business in Clackamas County, Oregon. 112

On March 6, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violation of Oregon Rule of Professional Conduct (RPC) 4.2 (communication with person represented by counsel). The parties intend that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding. Facts

In 2019, Respondent represented a woman (wife) in a dissolution of marriage pro- ceeding in which the client's partner (husband) was also represented by counsel. The parties failed to reach a settlement on all issues after two rounds of mediation. The morning after the second mediation session, wife emailed Respondent, stating that she and husband were again working on a possible settlement without the involvement of their lawyers. Wife asked Respondent to write down the proposed terms of the agreement. Respondent did not believe that husband and wife would actually settle the case, as they had failed to do so after two rounds of mediation and had previously failed to negotiate the case on their own. Nonetheless, Respondent wrote down the terms proposed by her client and also recalculated child support based on terms Respondent had previously omitted. Respondent included signature lines on the agreement for wife and husband but not for either attorney. Respondent provided the draft settlement agreement to wife, who then gave it to husband with a deadline for him to sign that evening. Respondent did not provide the agreement to husband's attorney; Respondent told wife that she and husband should each let their attorney know if they reached an agreement. During the same time period on the same day, Respondent and opposing counsel exchanged emails regarding the dissolution, but Respondent never mentioned their clients' contemporaneous negotiation. Husband ultimately did not sign the agreement after com- municating with his attorney, whom husband mistakenly believed had been provided a copy of the agreement.

Respondent admits that, while representing wife, she caused wife to communicate with husband, a represented party, on the subject of the representation while knowing that husband was represented by a lawyer on that subject. Respondent admits that she did so when she prepared a draft settlement agreement containing both terms proposed by her client as well as 113

her own child support calculation and gave wife the document knowing that wife expressed an intention to provide it to husband. Thus, Respondent admits she violated RPC 4.2. Sanction

1. Duty Violated. Respondent violated her duty to refrain from improper communication with individuals in the legal system. ABA Standard 6.3.

lawyer would exercise in the situation. Id. Here, Respondent acted negligently when she drafted a settlement agreement containing terms proposed by her client as well as Respondent's own child support calculation and provided it to her client, who expressed an intention to provide the document to husband, a party represented in the divorce proceedings, as a final agreement. Respondent thus failed to be aware of a substantial risk that her client would follow through with her stated intention and that husband would assent to the terms of the agreement without the assistance of his counsel.

foreseeable at the time of the lawyer's misconduct, and which, but for some misconduct. ABA Standards at 19. Respondent's communications with hus- band through wife caused potential injury to husband in the form of potential interference with the client-lawyer relationship and the potential for the husband's uncounseled assent to the settlement agreement. Respondent was admitted to practice in Oregon in 1995.

1. Character and reputation. ABA Standard 9.32(g). Under the ABA Standards, reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury. ABA Standard 6.33.

A reprimand is in accord with Oregon case law. See In re Newell, 348 Or 396, 234 P3d 967 (2010) (reprimanding an attorney for summoning a witness to a deposition without giving him time to consult with his attorney).

Respondent shall be publicly reprimanded for violation of RPC 4.2, the sanction to be effective upon approval of this stipulation by the Disciplinary Board Adjudicator.

her suspension. This requirement is in addition to any other provision of this agreement that

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: Washington state (inactive). March 6, 2021, and June 5, 2021. 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 19th day of August 2021. /s/ Lucinda R. Giorgetti Lucinda R. Giorgetti, OSB No. 950752 /s/ David J. Elkanich David J. Elkanich, OSB No. 992558 EXECUTED this 1st day of September 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 20-61 ) MICHAEL S. STERNER, ) )

Disposition: Violation of RPC 1.1, RPC 1.3, and RPC 8.4(a)(4). Stipulation for Discipline. 60-day suspension. Effective Date of Order: November 14, 2021

Michael S. Sterner (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 60 days, effective 60 days after approval by the Disciplinary Board for violation of RPC 1.1, RPC 1.3, and RPC 8.4(a)(4). DATED this 15th day of September, 2021.

Michael S. Sterner, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on May 6, 2010, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon.

On January 15, 2021, a formal complaint was filed against Respondent pursuant to the authorization of the State Professional Responsibility Board (SPRB), alleging violations of RPC 1.1 [competence], RPC 1.3 [neglect], and RPC 8.4(a)(4) [conduct prejudicial to the administration of justice] of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts

In 2015, Respondent became associated with the Florida law firm of Volks Anwault (Volks) in a "partnership" whereby Volks would advertise for bankruptcy clients, handle virtually all contacts related to the case, prepare all necessary pleadings, and refer the clients' cases to Respondent for filing after consultation.

In August 2016, Marco and Tina Vitagliano (the Vitaglianos) were on the verge of losing their home in foreclosure. On August 17, 2016, Mr. Vitagliano signed a bankruptcy retainer agreement (retainer agreement) with Volks and paid Volks $1,350 of a $3,500 fee. Ms. Vitagliano did not sign the retainer agreement.

Through his partnership with Volks, Respondent represented the Vitaglianos in their bankruptcy matter. Volks prepared a Chapter 13 petition (the petition) and sent it to Respon- dent to review with the Vitaglianos. Respondent did not notice that Ms. Vitagliano had not signed the petition or the retainer agreement, was unaware that the petition misrepresented Mr. Vitagliano's disability income, did not include a copy of the retainer agreement, and did not confirm that Volks had the Vitaglianos' inked signatures on the petition and other documents as required by bankruptcy rules. Respondent and Volks intended to file an amended petition to include the Vitaglianos' financial information, as required.

The filed petition stayed the foreclosure sale of the Vitaglianos' home. However, because Respondent filed an incomplete petition with the bankruptcy court, the court entered an order directing the Vitaglianos to file a complete petition within 14 days. Respondent filed a motion to extend the time period for filing the ordered documents, which the court granted; however, Respondent did not file the court-ordered documents by the new deadline. As a result, the court dismissed the Vitaglianos' bankruptcy proceeding.

The foreclosure sale of the Vitaglianos' home was rescheduled. Respondent filed a motion to reopen the Vitaglianos' dismissed case, but the court did not rule on this motion before the foreclosure sale. The Vitaglianos subsequently lost their home.

Additionally, Respondent filed a Debtor's Attorney's Disclosure of Compensation (Disclosure of Compensation) which inaccurately stated that he and the Vitaglianos had entered into an employment agreement; falsely stated that the employment agreement was attached; omitted to disclose Volk's role or participation in Respondent's representation of the Vitaglianos; omitted to disclose that Mrs. Vitagliano had not signed a fee agreement; and did not accurately reflect that the Vitaglianos paid $1,350 of the $3,500 to Volks.

Respondent admits that, by his conduct in paragraphs 5 through 10 above, he failed to provide competent representation in violation of RPC 1.1, neglected a legal matter entrusted to him in violation of RPC 1.3, and engaged in conduct prejudicial to the administration of justice in violation of RPC 8.4(a)(4). Sanction

stances.

1. Duty Violated. The ABA Standards presume that the most important duties a
   lawyer owes are those owed to clients. ABA Standards at 5. Respondent violated his duties to provide his clients with competent representation and diligence in performing the services requested by the client. ABA Standards 4.4, 4.5. Respondent also violated his duty to the legal system to avoid abuse to the legal process. ABA Standard 6.2.

2. Mental State. The ABA Standards recognize three types of mental states.
   "Knowledge" is the conscious awareness of the nature or attendant circum-

stances of the conduct but without the conscious objective or purpose to accomplish a particular result. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. ABA Standards at 9. Respondent was negligent in failing to familiarize himself with the relevant bankruptcy rules and statutes, which resulted in filing the petition and Dis- closure of Compensation in the Vitaglianos' matter with numerous inaccuracies and which omitted requisite information. Respondent was also negligent in failing to complete any substantial work on the Vitaglianos' case during an urgent time period.

foreseeable at the time of lawyer's misconduct, and which, but for some misconduct. ABA Standards at 9. Respondent's failure to provide competent representation and his lack of diligence resulted in the dismissal of the bankruptcy proceeding, which allowed the foreclosure sale to take place in which the Vitaglianos lost their home, a substantial injury, and caused the bankruptcy court to suffer some actual injury, causing the court to expend additional time and resources.

1. A pattern of misconduct. ABA Standard 9.22(c). Respondent has recently engaged in the same or similar rule violations as those in this matter. In 2020, he was suspended for 30 days for violations of RPC See In re Bertoni, 363 Or 1.1, RPC 1.3, RPC 1.4(a), and RPC 1.4(b). 1614, 644, 426 P3d 64 (2018) (". . . [A] pattern of misconduct . . . bears on whether the violation is a one-time mistake which may call for a lesser sanction, or part of a larger pattern, which may reflect a more serious ethical problem.").

In re Sterner, 34 DB Rptr 7 (2020). However, this prior discipline does not qualify as 1

a "prior disciplinary offense" under ABA Standard 9.22(a) because the prior sanction did not precede the acts that led to this proceeding. In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018). 120

1. Imposition of other penalties or sanctions. Respondent has agreed to
   never again represent individuals or entities in bankruptcy court in the United States District Court for the District of Oregon. ABA Standard 9.32(k).

2. Remorse. Respondent has expressed remorse for his conduct. ABA
   Under the ABA Standards, a suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client. ABA Standard 4.52. Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to the client, or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. ABA Standard 4.42.

A suspension is in accord with Oregon cases. See In re Eric J. Fjelstad, 31 DB Rptr 268 (2017) (60-day stipulated suspension when an attorney took no further action after obtaining a default that was the result of the attorney not knowing how to electronically submit a proposed judgment in his client's wage claim); In re Milton E. Gifford, 29 DB Rptr 299 (2015) (60-day stipulated suspension when an attorney, while representing an heir to her uncle's intestate estate, revised and filed documents without reviewing statutes related to missing heirs and failed to file appropriate pleadings and documentation in accord with those statutes).

Respondent shall be suspended for sixty (60) days for violations of RPC 1.1, RPC 1.3, and RPC 8.4(a)(4), the sanction to be effective 60 days after approval by the Disciplinary Board.

foreseeable prejudice to his clients during the term of his suspension. In this regard, Respon- dent has arranged for Thomas A. Hackett an active member of the Bar, to either take possession in need of the files during the term of his suspension. Respondent represents that Thomas A. Hackett has agreed to accept this responsibility.

July 24, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The parties EXECUTED this 14th day of September, 2021. /s/ Michael S. Sterner Michael S. Sterner, OSB No. 101564 EXECUTED this 14th day of September, 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-43 ) ADAM KIMMELL, ) )

Disposition: Violation of RPC 1.9(a). Stipulation for Discipline. Effective Date of Order: October 18, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Adam Kimmell (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is publicly reprimanded for violation of RPC 1.9(a). DATED this 18th day of October, 2021.

Adam Kimmell, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on November 5, 1991, and has been a member of the Bar continuously since that time, currently having his office and place of business in Clackamas County, Oregon. 123

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

On June 11, 2021, a formal complaint was filed against Respondent pursuant to the RPC 1.9(a) of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts

In 2011 and 2012, Respondent represented Nels Johnson (Johnson) to obtain a modification of child support payable to his first wife, Julie Ann Johnson, pursuant to a 1996 dissolution judgment.

As part of Respondent's representation of Johnson in the 2011-2012 modification matter, Johnson disclosed his financial information to Respondent. Some of this information may have been unknown to his then-wife, Ginette Johnson (Ginette).

In May 2019, Johnson filed pro se for dissolution of his marriage from Ginette. Respondent undertook to represent Ginette, and Laura Schantz (Schantz) represented Johnson. In representing Ginette adversely to Johnson, Respondent did not obtain the informed consent of either Johnson or Ginette regarding the representation. The court ultimately ordered Respondent removed from representing Ginette.

Respondent admits that, by representing Ginette in the dissolution matter, after he had represented Johnson in the 2011-2012 child support modification matter, he represented another person in a substantially related matter in which that person's interests were materially adverse to the interests of his former client in violation of RPC 1.9(a). Sanction

considering the following factors: (1) the ethical duty violated; (2) the lawyer's mental state; stances.

1. Duty Violated. The most important duties a lawyer owes are those owed to
   clients. ABA Standards at 5. Respondent violated his duty to his clients to avoid a conflict of interest. ABA Standard 4.3.

2. Mental State. The ABA Standards recognize three types of mental states.
   "Knowledge" is the conscious awareness of the nature or attendant circum-

stances of the conduct but without the conscious objective or purpose to accomplish a particular result. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. ABA Standards at 9. Respondent was negligent in failing to identify a substantial risk that he could use the confidential information he obtained in his representation of Johnson against Johnson in his representation of Ginette.

1. Injury. Injury can be either actual or potential under the ABA Standards. ABA
   Standard at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Standards at 9. Respondent's failure to avoid a client conflict caused actual injury to his client in that Ginette was required to obtain new counsel when the court ordered his removal. Respondent also caused injury to Johnson in that Johnson experienced anxiety that his confidential information could be used against him in the dissolution matter. Johnson also incurred additional legal fees to compel Respondent's removal from representing Ginette.

2. Prior disciplinary offenses. ABA Standard 9.22(a). The following fac-
   tors are considered in applying an attorney's prior discipline as an aggravating factor: (1) the relative seriousness of the prior offense and resulting sanction; (2) the similarity of the prior 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, specifically, whether the accused lawyer had been sanctioned for the prior offense before engaging in the offense in the case at bar. In re Cohen, 330 Or 489, 499, 8 P3d 953 (2000). In 1996, Respondent was reprimanded for engaging in the unlawful practice of law. In 2001, Respondent was suspended for 6 months for 1 In re Adam Kimmell, 10 DB Rptr 175 (1996). 1 125

engaging in criminal conduct that reflected adversely on a lawyer's honesty, trustworthiness, or fitness to practice law. 2 Respondent's prior discipline should not be given substantial weight because the prior conduct is not similar to the conduct at issue in this matter and did not occur close in time to the conduct here. Remoteness in time diminishes the significance of a prior offense as an aggravating factor, but does not function as a mitigating factor. In re Jones, 326 Or 195, 200, 951 P2d 149 (1997). Respondent was licensed to practice law in Oregon in 1991.

1. Full and free disclosure to disciplinary board and cooperative attitude Under the ABA Standards, a 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 adversely affect another client, and causes injury or potential injury to a client. ABA Standard 4.33.

Oregon case law is in accord. See In re Steven D. Gerttula, 26 DB Rptr 31 (2012) (stipulated public reprimand when a lawyer represented two individual clients who owned real property as joint tenants in common, prepared deeds on behalf of both conveying the property to themselves as tenants in common and later, after one client died, represented the deceased client's children in attempts to force the surviving client to partition the property, without informed consent from his present and former clients); In re Gregory Mark Abel, 33 DB Rptr 175 (2019) (stipulated reprimand where a lawyer represented a husband in a criminal matter involving one of the husband's daughters and then later simultaneously represented both the husband and wife in a dependency hearing where the husband's interests in defending against the daughter's allegations in the criminal matter were fundamentally different from the wife's interest in keeping another daughter, who was the subject of the dependency hearing, safe).

dent shall be publicly reprimanded for violating RPC 1.9(a).

In re Adam Kimmell, 332 Or 480 (2001). 2 126

his suspension. This requirement is in addition to any other provision of this agreement that

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: California, New York.

EXECUTED this 13th day of October, 2021. /s/ Adam Kimmell Adam Kimmell, OSB No. 915176 EXECUTED this 14th day of October, 2021.

In re: ) ) Complaint as to the Conduct of ) Case Nos. 18-115 and 19-126 ) JAMES D. HUFFMAN, ) ) Counsel for the Bar: Samuel Leineweber Counsel for the Respondent: John P. Salisbury Disposition: Violation of RPC 1.3, RPC 1.6(a), RPC 1.16(a)(1), RPC 8.1(a)(2), RPC 8.1(c), and RPC 8.4(a)(4). Stipulation for Discipline. 181-day suspension with formal reinstatement. Effective Date of Order: February 1, 2022

James D. Huffman (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 181 days, effective on February 1, 2022, for violation of RPC 1.3, RPC 1.6(a), RPC 1.16(a)(1), RPC 8.1(a)(2), RPC 8.1(c), RPC 8.4(a)(4). DATED this 3rd day of November, 2021.

James D. Huffman, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on September 19, 1975, and has been a member of the Bar continuously since that time, having his office and place of business in Columbia County, Oregon.

On July 14, 2020, a formal complaint was filed against Respondent pursuant to the RPC 1.3, RPC 1.6(a), RPC 1.16(a)(1), RPC 8.1(a)(2), RPC 8.1(c), RPC 8.4(a)(4) of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the pro- ceeding. Facts

OSB Case No. 18-115 In July 2015, Daniel Thomas (Thomas) retained Respondent to represent him in a divorce and child custody matter. The matter settled on July 13, 2016, at a settlement conference and the settlement was read in to the record. The Hon. Ted E. Grove directed Respondent to prepare and submit a written judgment, and Respondent agreed to do so.

In October 2016, the court issued a notice of dismissal pending settlement. On February 23, 2017, the court issued another notice of dismissal pending settlement. Respondent received both dismissal notices.

By November 2017, Respondent had still not submitted the judgment. On November 6, 2017, Thomas filed a Bar complaint against Respondent and on November 27, 2017, Thomas hired a new attorney to draft and submit the judgment.

On March 22, 2018, Respondent wrote to the Client Assistance Office (CAO) in response to Thomas's Bar complaint. Respondent stated that he had not filed the judgment because Thomas had not paid him to do so. Respondent also included information about Thomas that was unrelated to defending himself against Thomas's complaint, such as criminal and family troubles that Thomas had. CAO referred the matter to Disciplinary Counsel's Office (DCO) on June 3, 2018. 129

DCO wrote an inquiry letter to Respondent at his address on record with the Bar (record address) on June 19, 2018. When Respondent did not reply, DCO sent a second letter to Respondent's record address on July 13, 2018. When Respondent did not respond, DCO petitioned for a suspension of Respondent's license pursuant to BR 7.1. Respondent did not respond to the petition and was suspended on August 6, 2018. An order of suspension was again sent to Respondent at his record address and email address. Respondent then responded to DCO.

Respondent admits that by failing to draft and submit the judgment in Thomas's case for 16 months after he had been entrusted with the task, he violated RPC 1.3. Respondent admits that by choosing to neglect of Thomas's judgment for 16 months, his continued representation of Thomas during this time violated RPC 1.16(a)(1). Respondent admits that by failing to timely submit Thomas's judgment, final disposi- tion of the case was delayed and the circuit court was forced to expend additional time and resources, in violation of RPC 8.4(a)(4). Respondent admits that by disclosing irrelevant information that was embarrassing and detrimental to Thomas in response to Thomas's Bar complaint, he violated RPC 1.6(a). Respondent admits that during June and July 2018, he knowingly failed to respond to lawful demands for information from Disciplinary Counsel's office, and thus violated RPC 8.1(a)(2).

OSB Case No. 19-126 In mid-March 2019, Respondent was referred to the State Lawyers Assistance Com- mittee (SLAC) and attorney Kevin E. Lucey (Lucey) was designated by SLAC to investigate the referral. Lucey attempted to contact Respondent via telephone, email, and mail, but Respondent did not reply to him. In a letter, Lucey gave a deadline of April 10, 2019, for Respondent to reply or else Lucey said he would refer Respondent to DCO as non-cooperative. Respondent replied to this letter.

Lucey met with Respondent on April 9, 2019, at which time he explained SLAC's role and his obligation to investigate whether SLAC should take jurisdiction. Lucey explained that as part of his investigation, he needed to review Respondent's medical and mental health records. On April 10, 2019, Lucey emailed Respondent a blank medical release with instructions to sign, date and initial next to "mental health information."

On April 11, 2019, Lucey emailed Respondent to assure him that SLAC had the right to require release of the medical records, and provided Respondent with the OSB Bylaw establishing that right.

On April 20, 2019, Respondent emailed Lucey and stated that he wanted time to research the SLAC statutes. Lucey gave Respondent until April 24, 2019 to provide the medical release with a list of doctors. Respondent missed that deadline. On April 25, 2019, Lucey wrote to Respondent giving him a second chance to respond by May 1, 2019. Respondent also missed that deadline.

On the evening of May 6, 2019, Respondent sent releases to Lucey via email, but he had placed Lucey's name in the space for the medical provider. On May 7, 2019, Lucey wrote back and asked Respondent's permission to delete Lucey's name from the release. Respondent did not respond. Lucey sent reminder emails on May 8 and May 9, 2019, but Respondent did not respond. On May 13, 2019, Lucey set a deadline for his response of May 14, 2019, by 5 p.m. Respondent did not respond to that email until May 17, 2019, at which point he authorized Lucey to modify the form he had signed. Lucey then noticed that Respondent had not checked the mental health information box, and so wrote to Respondent asking that he do so, and requesting information regarding specific medical providers he had used.

On May 20, 2019, Respondent wrote to Lucey, stating he had just seen his request, but did not comply. On May 21, 2019, Lucey renewed his request for a properly signed and initialed medical release, and asked that it be provided that day. On May 23, 2019, having received no response, Lucey wrote to Respondent, informing him that there was a SLAC meeting that day and that Lucey would recommend that SLAC report Respondent as non- cooperative. SLAC referred Respondent to DCO for non-cooperation.

Respondent admits that by failing to provide a properly executed medical release of information to SLAC when it was requested, he violated RPC 8.1(c). Sanction

stances. ABA Standards 3.0. 131

1. Duty Violated. The ABA Standards provide that the most important ethical
   duties are those which lawyers owe their clients. ABA Standards at 5. In violating RPC 1.3, Respondent violated his duty to provide diligent repre- sentation to his client. ABA Standard 4.4. In violating RPC 1.6(a), Respondent violated his duty to preserve his client's confidences. ABA Standard 4.2. In violating RPC 1.16(a)(1), RPC 8.1(a)(2), and RPC 8.1 (c), Respondent violated his duty as a professional. ABA Standard at 7.0. In violating RPC 8.4(a)(4), Respondent violated his duty owed to the legal system. ABA Standard 6.0.

2. Mental State. Respondent's mental state for the conduct in each of these
   violations amounts to knowledge. "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 7. Respondent was aware of his responsibility to draft and submit a judgment in Thomas's case, and he was aware that the court intended to dismiss the pro- ceeding on multiple occasions if he did not submit the judgment. Respondent knowingly neglected Thomas's case for 16 months. Respondent knew that he was disclosing information that was likely to be embarrassing or detrimental to Thomas. Respondent also knew, or should have known, that this information was unnecessary to establish a defense to Thomas's complaint which was limited to his lack of diligence in preparing and submitting the judgment. Respondent knowingly failed to respond to DCO and knowingly failed to cooperate with SLAC; Respondent's course of conduct demonstrates that he decided to pick and choose which requests he would respond to and when he would respond. Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). The ABA Standards define "injury" as harm to the client, the public, the legal system, or the profession that results from a lawyer's conduct. "Potential injury" is harm to the client, the public, the legal system, or the profession that is reasonably foreseeable at the time of the lawyer's conduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Standards at 7. An injury does not need to be actual to support the imposition of sanctions. In re Williams, 314 Or at 546. In neglecting Thomas's case, Respondent caused actual injury to his client. A client sustains actual injury when an attorney fails to actively pursue the client's case. See, e.g., In re Parker, 330 Or 541, 546-47, 9 P3d 107 (2000). Respon- dent's neglect caused also caused his client stress, frustration, and anxiety. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000); In re Schaffner, 325 Or 421, 426-27, 939 P2d 39 (1997). Finally, Respondent's conduct in Thomas's case forced Thomas to hire a second lawyer to draft and submit his judgment. A lawyer's inaction can injure the court by creating an unnecessary burden on court resources. In re Hartfield, 349 Or 108, 116, 239 P3d 992, (2010). Here, 132

Respondent's failure to draft and submit a judgment caused actual injury to the court as it was required to expend resources to calendar and send dismissal notices on two occasions. Respondent caused actual harm to Thomas by revealing embarrassing details about him in response to a Bar complaint. Respondent's conduct in this viola- tion also caused potential harm to the profession by ignoring the commitment to confidentiality that the public expects from attorneys. See In re Huffman, 328 Or 567, 588, 983 P2d 534 (1999). 1 Respondent's failure to respond to the Bar and to cooperate with SLAC caused actual injury to the Bar and the public. See In re Gastineau, 317 Or 545, 558, 857 P2d 136 (1993) (the Bar is prejudiced when a lawyer fails to cooperate as it makes investigations more time-consuming, and public respect for the Bar is diminished because the Bar cannot provide timely and informed responses to complaints); In re Chandler, 306 Or 422, 432, 760 P2d 243 (1988)(a lawyer's failure to cooperate with SLAC is quite serious, as it increases the risk to the public and impairs the integrity of the legal profession).

1. Preliminary Sanction. Absent aggravating or mitigating circumstances, the
   following ABA Standards apply: Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. ABA Standard 4.42. Suspension is generally appropriate when a lawyer knowingly reveals infor- mation relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client. ABA Standard 4.22. Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. ABA Standard 7.2.

2. Aggravating Circumstances. Aggravating circumstances include:

3. A dishonest or selfish motive. ABA Standard 9.22(b). Respondent's
   actions in relation to Thomas's judgment, DCO's investigation, and SLAC's investigation prioritized his own interests over those of this client, the court system, and the legal profession.

4. A pattern of misconduct. ABA Standard 9.22(c). A pattern of mis-
   conduct does not necessarily require proof of a prior sanction. Rather, this aggravating factor bears on whether the violation is a one-time mistake, or part of a larger pattern. Here, Respondent violated duties to 2his client over a long period of time and then failed to cooperate with This was not Respondent. 1 See In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018). 2 133

the Bar. In a separate matter, Respondent also failed to cooperate with SLAC.

1. Substantial experience in the practice of law. ABA Standard 9.22(j). Respondent has been licensed to practice law in Oregon since 1975.

Fact matching between cases is a difficult endeavor, especially when multiple viola- tions are at issue, however Oregon case law holds that a suspension is warranted. The court typically imposes a presumptive sanction of at least 60 days for a knowing neglect violation. In re Redden, 342 Or 393 (2007) (60-day suspension imposed for single serious neglect despite an inexperienced lawyer with no prior discipline). In cases where neglect is accompanied by additional violations similar to Respondent's, the sanction increases to approximately 120 days. In re Worth, 337 Or 167, 92 P3d 721, (2004) (attorney was suspended for 120 days for violations of the predecessors of RPC 1.1, RPC 1.3, RPC 8.4(a)(4), and RPC 8.4(a)(3) when he failed to move a client's case forward despite several warnings from the court, resulting in the court granting the opposing party's motion to dismiss); In re Paul Lars Henderson III, 31 DB Rptr 95 (2017) (lawyer was suspended 120 days for neglect, failure to communicate, failure to withdraw, and failure to respond to the Bar). The sanction for a violation of RPC 1.6(a) often depends on the circumstances of the disclosure. A reprimand is imposed in cases where the disclosure is negligent or without a selfish motive. See In re Vandergaw, 31 DB Rptr 9 (2017)(negligent disclosure in open court); In re Langford, 19 DB Rptr 211 (2005) (disclosure made in withdrawal motion). The Oregon Supreme Court recently reprimanded a lawyer who revealed unnecessary information about his client's criminal history in response to an online complaint. In re Conry, 368 Or 349, 491 P3d 42 (2021). In departing from the 30 day suspension that the Trial Panel imposed, the court noted that the case was one of first impression, given the relatively new nature of online complaints. Conry, 368 Or at 377. Respondent's case does not present an issue of first impression. Conversely, a suspension is imposed where the disclosure is intentional or with a selfish motive. See In re Lackey, 333 Or 215, 229, 37 P3d 172 (2002)(attorney suspended for one year when he disclosed information to the press in an effort to retaliate against his for employer); In re Huffman, 328 Or 567, 591, 983 P2d 581 (1999)(attorney suspended for two years when he disclosed a former client's confidences and threatened criminal prosecution during former client's bankruptcy proceeding). Furthermore, the court has held that the "failure to cooperate with a disciplinary investi-gation, standing alone, is a serious ethical violation." In re Parker, 330 Or 541, 551, 9 P3d 107 (2000). The court has no tolerance for violations of this rule. In re Miles, 324 Or 218, 222-23, 923 P2d 1219 (1996) (although no substantive charges were brought, the court imposed a 120-day suspension and required formal reinstatement for non-cooperation with the Bar). In Miles, the attorney failed to respond to inquiries from DCO, failed to respond to the Bar's formal 134

complaint, and did not appear at trial, and a default was entered against her. In re Miles, 324 Or at 220, 224-25. A respondent's failure to respond not only prejudices the Bar, by causing a more time-consuming investigation, but also diminishes the public's respect for the Bar's ability to address complaints. In re Gastineau, 317 Or 545, 558, 857 P2d 136 (1993).

Respondent shall be suspended for 181 days for violations of RPC 1.3, RPC 1.6(a), RPC 1.16(a)(1), RPC 8.1(a)(2), RPC 8.1(c), and RPC 8.4(a)(4), the sanction to be effective February 1, 2022.

In addition, on or before February 1, 2022, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $691.45, incurred for attempted service of the formal complaint and Respondent's deposition. Should Respondent fail to pay $691.45 in full by December 1, 2021, the Bar may thereafter, without further notice to him, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

Respondent has arranged for John P. Salisbury, OSB No. 823860, an active member of the Bar, to either take possession of or have ongoing access to Respondent's client files and serve as the contact person for clients in need of the files during the term of his suspension. Respondent represents that John Salisbury has agreed to accept this responsibility.

period of suspension. He is required to apply for formal reinstatement pursuant to Title 8 of the Bar Rules of Procedure. Respondent also acknowledges that he cannot hold himself out as an active member of the Bar or provide legal services or advice until he is notified that his license to practice has been reinstated.

/s/ James D. Huffman James D. Huffman, OSB No. 751857 /s/ John P. Salisbury John P. Salisbury, OSB No. 823860 EXECUTED this 2nd day of November, 2021. By: /s/ Samuel Leineweber Samuel Leineweber, OSB No. 123704

In re: ) ) Complaint as to the Conduct of ) Case No. 20-60 ) CAROLINA SLYTHE, ) )

Disposition: Violation of RPC 1.3, RPC 1.5(c)(3), RPC 1.15-1(c), RPC 1.15-1(d), and RPC 7.1. Stipulation for Discipline. 30-day suspension. Effective Date of Order: January 3, 2022

Carolina Slythe (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is suspended for 30-days, effective January 3, 2022, for violation of RPC 1.3, RPC 1.5(c)(3), RPC 1.15-1(c), RPC 1.15-1(d), and RPC 7.1. DATED this 3rd day of November, 2021.

Carolina Slythe, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on May 6, 2010, and has been a member of the Bar continuously since that time, having her office and place of business in the County of Washington, State of Oregon.

On March 19, 2021, a formal complaint was filed against Respondent pursuant to the RPC 1.3, RPC 1.5(c)(3), RPC 1.15-1(c), RPC 1.15-1(d), RPC 7.1, and RPC 8.4(a)(3) of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts

Respondent was administratively suspended from practicing law in 2016. While suspended, on August 14, 2018, Respondent met with a client on an immigration matter, Margarita Herrera Aldaco (Herrera), who received Respondent's information from a business card. On August 23, 2018, Respondent posted statements to an online networking site pro- moting her firm, including that "as an immigration law attorney the best form of advertising has been word of mouth referrals based on the business cards I create," and that "I provide an in-depth case analysis of any situation that any one particular client is experiencing." It nowhere disclosed that she was suspended or otherwise unable to practice law.

Respondent entered into a fee agreement with Herrera to perform a Freedom of Information Act (FOIA) request for $500, intending to help Herrera with her immigration case. Respondent's fee agreement represented that Respondent was an attorney with Messidona Law Group, LLC, and referred to Respondent as "Attorney" throughout.

Respondent's fee agreement stated the $500 fee would be held in a lawyer trust account, however Respondent treated it as non-refundable, and did not maintain a lawyer trust account at the time. Respondent received the $500 fee on August 14, 2018, but at no time deposited it into a lawyer trust account.

For the next 14 months, Respondent did not complete the FOIA request or issue a refund to Herrera. On or about October 15, 2019, Herrera filed a claim with the Bar's Client Security Fund (CSF). Respondent returned the $500 fee shortly thereafter.

Respondent admits that, by not completing the FOIA request for 14 months, she neglected a legal matter entrusted to her in violation of RPC 1.3. Respondent admits that she violated RPC 1.5(c)(3) by treating Herrera's fee as non-refundable when her fee agreement did not comply with RPC 1.5(c)(3). Respondent further admits that by not depositing her client's funds into her lawyer trust account, she violated RPC 1.15-1(c). By not promptly refunding her client's fee that her client was entitled to receive, Respondent admits that she violated RPC 1.15-1(d). Respondent also admits that she made a false or misleading communication about herself or her services by holding herself out as an attorney licensed to practice law in Oregon both on her website and in her fee agreement with Herrera while she was suspended, and therefore violated RPC 7.1. Upon further factual inquiry, the parties agree that the charge(s) of alleged violation(s) of RPC 8.4(a)(3) should be and, upon the approval of this stipulation, is dismissed. Sanction

1. Duty Violated. Respondent violated the duties she owed to preserve her client's property by failing to return unearned funds. ABA Standard 4.0. Respondent violated her duty to act with reasonable diligence and promptness in repre- senting a client. ABA Standard 4.4. She violated the duties she owed as a professional to prepare and enter into the appropriate fee agreement and to abide by regulations concerning communications about her legal practice. ABA Standard 7.0.

Here, Respondent initially was negligent in handling her client's FOIA request, but over time her failure to complete the work became knowing. Respondent negligently failed to use an appropriate fee agreement. Respondent knowingly made improper communications about her legal practice.

1. Injury. Respondent harmed Herrera by delaying completing her FOIA request
   and returning her funds. Her conduct delayed Herrera's ability to meet with a licensed attorney on her immigration matter. It also deprived Herrera of the use of her $500 for approximately 14 months.

2. Multiple offenses. ABA Standard 9.22(d).

3. Vulnerability of victim. ABA Standard 9.22(h). As an undocumented
   person with limited English proficiency and limited income, Herrera was a vulnerable victim.

4. Personal or emotional problems. ABA Standard 9.32(c). Respondent
   testified at length that she was distracted by personal problems such that she was not making careful or sensible decisions.

5. Cooperative attitude toward disciplinary proceedings. ABA Standard
   9.32(e).

Under the ABA Standards, suspension is generally appropriate when a lawyer knows or should know that she is dealing improperly with client property and causes injury or potential injury to a client. ABA Standard 4.12. Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. ABA Standard 4.42. Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client. ABA Standard 7.2.

Oregon case law demonstrates that some amount of suspension is warranted. See, e.g., In re M. Christian Bottoms, 31 DB Rptr 328 (2017) (stipulated 30-day suspension when an attorney deposited client funds in a business account without an appropriate fee agreement, and who had no other misconduct but had similar prior discipline); In re Foster, 29 DB Rptr 35 (2015) (stipulated 30-day suspension for holding self out as a practicing attorney on television and internet advertising, while suspended, then falsely denying that she did so to DCO); In re Kenney, 28 DB Rptr 269 (2014) (stipulated 30-day suspension when lawyer made misleading communications about her ability to perform legal services while inactive, and practiced administrative law); In re Barker, 24 DB Rptr 246 (2010) (stipulated 60-day suspension when attorney represented a client in an Oregon court during his administrative suspension, then falsely minimized his legal work to DCO). 140

Respondent shall be suspended for 30-days for violation of RPC 1.3, RPC 1.5(c)(3), RPC 1.15-1(c), RPC 1.15-1(d), and RPC 7.1, the sanction to be effective January 3, 2022.

In addition, on or before December 3, 2021, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $676.05, incurred for Respondent's deposition. Should Respondent fail to pay $676.05 in full by December 3, 2021, the Bar may thereafter, without further notice to her, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

dent has represented that she currently has no client files in her possession, custody or control.

October 23, 2021. Approval as to form by Disciplinary Counsel is evidenced below. The

/s/ Carolina Slythe Carolina Slythe, OSB No. 101525 EXECUTED this 2nd day of November, 2021.

In re: ) ) Complaint as to the Conduct of ) Case Nos. 19-49, 19-50, and 19-51 ) SC S068386 DONALD R. SLAYTON, ) ) Counsel for the Bar: Eric Collins Counsel for the Respondent: Jason E. Thompson Honorable Frank R. Alley Dr. George A. McCully, Public Member Disposition: Violation of RPC 1.2(a), RPC 1.3, RPC 1.4(a), RPC 1.6(a), RPC 1.9(c)(1), RPC 3.3(a)(1), and RPC 8.4(a)(4). Order granting dismissal of appeal and imposing Trial Panel Opinion. 18-month suspension. Effective Date of Order: January 3, 2022 ORDER GRANTING STIPULATED MOTION TO DISMISS APPEAL (IMPOSING TRIAL PANEL OPINION) The stipulated motion to dismiss appeal is granted. Appeal dismissed. /s/ Lynn R. Nakamoto Lynn R. Nakamoto, Presiding Justice Supreme Court 11/4/2021 3:43 PM The Oregon State Bar (Bar) charged respondent Donald R. Slayton with violating eight Rules of Professional Conduct (RPC) relating to three separate matters. While representing a client in litigation, he is accused of violating RPC 1.2(a) (failure to abide by client's decision to settle), RPC 1.6(a) (disclosure of client confidential information), RPC 1.9(a) (representing another person in conflict with a former client), and RPC 1.9(c)(1) (use of former client's information to former client's detriment). The Bar alleges he refused to dismiss his client's lawsuit when she directed him to do so and, instead, inserted himself into the litigation adverse to her interests, opposing her decision to dismiss her lawsuits and using and disclosing her confidential information to her disadvantage. In representing another client, Respondent is accused of violating RPC 3.3(a)(1) (failure to correct false statements to a tribunal) and RPC 8.4(a)(4) (conduct prejudicial to the 143

administration of justice). The Bar alleges he violated procedural rules to obtain a default order and later failed to correct material misstatements in affidavits and a default judgment within a reasonable time after they were brought to his attention. Finally, in the third matter, Respondent is accused of violating RPC 1.3 (neglect of a legal matter) and RPC 1.4(a) (failure to keep client reasonably informed) during representation of clients in a dispute involving the purchase of a home with significant defects. The Bar alleges that he neglected work on the case for more than a year and failed to respond to the clients' requests for status updates and a return of retainer funds until after the client filed a Bar complaint. The Bar argues that the appropriate sanction for these multiple offenses is an 18-month Trial took place by videoconference on December 8 through 11, 2020. The trial panel consisted of the Adjudicator, Mark A. Turner, attorney member the Honorable Frank R. Alley, and public member Dr. George A. McCully. The Bar appeared through counsel, Eric J. Collins. Respondent appeared and was represented by counsel, Jason E. Thompson. As discussed below, after considering the evidence and argument offered at trial, we conclude that the Bar proved the alleged violations of RPCs 1.2(a), 1.6(a), 1.9(c)(1), 3.3(a)(1), 8.4(a)(4), 1.3, and 1.4(a) by clear and convincing evidence. We find that the Bar failed to prove a violation of RPC 1.9(a). We order that Respondent be suspended for a period of 18 months. ANALYSIS OF THE FACTS AND CHARGES We take the matters up in the order pleaded by the Bar, and use the designations applied by the Bar to each. The first, denominated the Batchelor Matter, involves client Carol Batchelor. The second, denominated the Chanti Matter, involves a complaint against Respon- dent made by Lane County Circuit Court Judge Suzanne Chanti. The third, denominated the Kimball Matter, involves a client, Kenneth Kimball. BATCHELOR MATTER 1 In April of 2016, Carol and Jack Batchelor stipulated to a judgment in Lane County Circuit Court dissolving their marriage. The couple owned real property in Samoa, and the judgment awarded Carol a 50% interest. In late 2017, Carol suspected that Jack had sold the property without sharing the proceeds. After being turned down by other lawyers, Carol met with Respondent and another lawyer who worked with him, Todd Moore, on November 30, 2017. She did not have funds to pay Respondent's proposed retainer of $7,500 and could not pursue the case on an hourly basis. After further discussion, Respondent agreed to take the case on a contingency basis, documented in a written agreement signed by Carol on December 1, 2017. Ex. 12. The Client Carol Batchelor did not testify at the disciplinary trial. A Bar investigator 1testified that she wanted no further involvement with the matter because of the distress it caused her. Tr. at 113-14. Carol's actions and motivations were documented by the written record and testimony of other witnesses. 144

agreement had no provision governing Respondent's fee in the event the representation was terminated prior to completion of the engagement. The lawyers immediately undertook significant work on Carol's behalf. They ultimately filed a complaint against Jack with a motion for a temporary restraining order and a preliminary injunction to protect Carol's share of any sale proceeds. They also filed additional contempt pleadings in the existing dissolution case. At a hearing on December 22, 2017, Jack told Carol and Respondent that the property sale had not closed and Jack had not yet received any money from a buyer. The parties then negotiated a stipulated injunction whereby Jack would have Carol's share of any proceeds from a sale transferred to the trust account of an Oregon lawyer, Ruby Drake, who was representing Jack's mother, Opal. The lawyer would hold the funds as an escrow. Discovery was to continue, with dates set for document production and depositions in the near future. The sale was supposed to close in January 2018, but Carol apparently learned that there would be a three to four month delay. Carol decided she no longer wanted to pursue the litigation. She spoke with Respondent by phone on January 19, 2018. Respondent stated in a court filing that she told him that: "[S]he was 'mentally exhausted, and just wanted this all to be over,' or words to that effect. She further advised [Respondent] that she was inclined to dismiss the pending litigation, and just 'deal with Jack [defendant] directly. . . .'" Ex. 41, p. 5. Respondent testified that he was concerned about Carol's change in attitude. He told her in their January 19 conversation that her decision made no sense, given the protection afforded by the stipulated injunction. He further told her that if she dismissed the pending litigation the protection of her interests provided by the injunction would disappear and she would be back to "square one." Id. Despite Respondent's arguments, Carol terminated Respondent by email on January 21, 2018. She stated, in part, "I have no choice but to work with Jack, Ruby, the Chinese and the Samoan government to resolve these ongoing financial delays and obstacles, or try to recoup our property. Please accept this as my formal notice to discharge your services and all legal proceedings and stop any further actions against Jack." Ex. 20. Carol emailed Respondent on January 23, 2018, explaining that the litigation was having an adverse effect on her mental health and that she believed the property sale was falling apart. Ex. 22. She also discussed her desire to end the litigation in a phone call with Respondent later that day. Carol emailed Respondent for the last time, on January 24, 2018, at 9:09 a.m. She invoked the termination provision from the contingent fee agreement. She then stated, "I do not want to waste any more time, money or tears over this. I'm sorry if you can't understand that, but I'm done." Ex. 25. She advised Respondent that she had "obtained paperwork for a motion for dismissal with the courts." Id. She concluded by instructing Respondent to file his

"order to withdraw." Id.

Respondent was concerned that his client was trying to deprive him of his contingent fee. She had discussed modifying the terms with him once before, stating that she had handed him the case "on a silver platter." Tr. at 472-73. That day Respondent telephoned the Bar's Deputy General Counsel Mark Johnson Roberts for guidance. He testified that he spoke with Johnson Roberts twice in total, and stated that his understanding after the conversations was 145

that the rules allow him to reveal information reasonably necessary to "perfect" or "protect" his claim. Tr. at 509. On the afternoon of January 24 Respondent filed a "Notice of Claim of Lien" seeking $88,550 for fees and costs in both the property and dissolution proceedings. Exs. 8, 26. He filed motions to withdraw in both cases as well. On January 25, 2018, Carol and Jack, without counsel, appeared in court ex parte and filed a pro se stipulated motion to dismiss both the property and dissolution proceedings. Exs. 9, 29. The court signed stipulated judgments of dismissal without prejudice. These were entered on January 29, 2018. Exs. 10, 30. On January 31, 2018, Respondent filed on his own behalf a motion to vacate the judgment of dismissal in the property case in order keep the stipulated injunction in place to protect the money that could satisfy his attorney lien claim. Ex. 31. Respondent filed a declaration in support of the motion that disclosed information gained from Carol during the representation. He also included copies of correspondence between Carol and himself regarding her decision to stop the litigation. Ex. 32. As these events were unfolding, Carol complained to the Bar about Respondent on January 30, 2018. Ex. 33. She made another complaint on February 1, 2018. Id. The Bar sent Respondent copies of the complaints on February 9, 2018. Ex. 34. Respondent filed a hearing memorandum on February 23 in support of his motion to vacate that disclosed additional confidential communications between himself and his client. Ex. 41. Two days later, on February 25, 2018, Respondent filed a supplemental declaration in support of his motion to vacate, which disclosed even more client information. Ex. 42. The court held a hearing on the motion to vacate on February 26, 2018. Over objection from Jack's lawyer, Respondent called Carol as a witness and engaged in lengthy questioning of her regarding his representation and her decision to end the litigation. Ex. 43, pp 43-79. Carol was not represented by counsel at the hearing. The examination also involved further disclosure of client information. Carol ultimately hired a lawyer who filed a suit against Respondent for breach of fiduciary duty and intentional infliction of emotional distress. Ex. 49. Respondent finally withdrew his motion to vacate in August 2018 as part of a global settlement agreement that included the claims asserted against Respondent. The parties walked away from one another. Respondent received no fees. No evidence was presented that Carol or Jack Batchelor ever received any money for the Samoa property either. The condition precedent to Respondent's entitlement to fees never occurred.

CHARGES

1. Allocation of Authority Between Client and Lawyer: Respondent failed to abide by his client's decision to settle the matter and dismiss the litigation in violation of RPC 1.2(a). RPC 1.2(a) provides: Subject to paragraphs (b) and (c), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (Emphasis added.) This rule is explicit. It states that a lawyer shall abide by a client's decision whether to settle a matter. Carol decided to stop the litigation against her ex-husband. She directed Respondent to stop working on her cases and to dismiss both of them. Respondent did not follow her instructions. When Respondent resisted, Carol filed stipulated dismissals in the property and the dissolution cases. Respondent then filed a motion to vacate the stipulated dismissals. In doing so, not only did Respondent ignore his client's instructions regarding dismissal, he actively opposed his client's wishes in court. Respondent claims he did so because he was concerned that Carol was being misled into dropping the cases, which would have the effect of erasing the protections put in place with the stipulated injunction. He says he was acting in Carol's best interest. There is no such exception in the rule. If an attorney disagrees strongly with a client's decision to settle and terminate litigation, the attorney may seek to withdraw from the representation. If all Respondent had done here was tell Carol he could not follow her directive to dismiss the lawsuits and that he must withdraw, we believe that course of conduct would not, in itself, violate the rule. How- ever, when Respondent not only failed to follow her instructions, but also took affirmative steps to oppose his client's decisions regarding settlement, he violated the rule. Respondent argued that the Oregon attorney lien statutes allowed him to do what he did and, thus, he cannot be found guilty of misconduct when his conduct was procedurally allowed by law. Respondent cited no case law to support this position, and the argument is in direct conflict with the language of RPC 1.2(a). The fact that the law makes certain procedures available to a litigant does not mean the Rules of Professional Conduct no longer apply if the litigant is a lawyer. As a general proposition, we note that the course of action Respondent chose was not the only one available to him to pursue his lien claim. The Bar presented expert testimony regarding the functioning of the attorney lien statutes and legal practice involving such liens. An attorney may assert a lien in an existing case involving a client, as Respondent did here. An attorney may commence a separate action against a client to enforce an attorney's lien. An 147

attorney representing a plaintiff may also bring a separate action against the defendant in an action to collect on the lien. See Potter v. Schlesser Co., Inc., 335 Or 209, 63 P3d 1172 (2003). Respondent argued that Potter justified him opposing his client's dismissal of her litigation in pursuing his lien claim. We disagree. In Potter, a client reached a $12,000 settlement with the opposing party without involving his lawyer. The client disappeared. The lawyer then filed a separate suit against the defendant to seek his fees based on his lien on the underlying case. The court permitted the attorney to pursue his claim against the defendant. The court noted that ORS 87.445 "serves as notice to all the world that an attorney's lien for fees arises when an action is commenced." Id. at 213. The court then explained that ORS 87.475 provided that the lien was not affected 2by a settlement between the parties to the action. Id. at 214. Finally the court held that "in the 3absence of statutory direction the attorney's lien could be enforced by various methods depending on the 'peculiar circumstances attending the character of the lien.'" Id. at 215. Potter does not address the issue here. The fact that a statute may authorize a particular course of action does not mean that an attorney may follow that course if it violates the Rules of Professional Conduct. For example, ORS 87.430 grants lawyers a possessory lien on "client papers and property for services rendered to the client." RPC 1.16(d) also states that lawyers

"may retain papers, personal property and money of the client to the extent permitted by other

law." The language just cited seems to make the lawyer's right to retain papers absolute. But the issue is subject to debate because retaining client papers may violate a lawyer's fiduciary obligations to the client. OSB Formal Opinion No. 2005-90 explains that if a lien is otherwise valid and if the client has sufficient resources to pay the lawyer but chooses not to do so (or to file a bond as security for the amount due), the lawyer may lawfully withhold the materials. If the client does not have the resources to pay the lawyer, and if withholding the materials would cause foreseeable prejudice to the client, the attorney must surrender the materials. The fiduciary obligation supersedes the right explicitly granted in the statute. Other states have treated the issue in various ways. We believe, however, that the 4approach taken by the Formal Opinion should hold here. Respondent had the right to assert his lien claim in his client's ongoing case. Once the client decided to dismiss the lawsuit, however, Respondent's statutory right to pursue his lien must yield to the client's decision on settlement, 87.445 Attorney's lien upon actions and judgments. An attorney has a lien upon 2actions, suits and proceedings after the commencement thereof, and judgments, orders and awards entered therein in the client's favor and the proceeds thereof to the extent of fees and compensation specially agreed upon with the client, or if there is no agreement, for the reasonable value of the services of the attorney. 87.475 Effect of settlement on attorney's lien; satisfaction of judgment. (1) Except 3as provided in subsections (3) and (4) of this section, the lien created by ORS 87.445 is not affected by a settlement between the parties to the action, suit or proceeding before or after judgment, order or award. See Hierschbiel, "Difficult Paradigm: Are lien rights absolute?" Oregon State Bar 4Bulletin, May 2006. 148

which the Rules of Professional Conduct make absolute. Respondent had other avenues to use to pursue his lien claim. He could have filed a separate suit against his client for the fees. He could also have filed a separate suit against Jack Batchelor, the defendant, as the lawyer did in Potter. He chose neither. Moreover, Respondent could have sought provisional process in such separate actions seeking the same protections as were in the stipulated injunction. Respon- dent's opposition to his client's decision was a tactical choice squarely at odds with his obligations under RPC 1.2(a). Respondent wanted to keep the existing stipulated injunction in place because it pro- vided him with protection that any money generated by an offshore sale of the Samoa property would be reachable in the trust account of an Oregon attorney. Respondent's motion had no effect on the validity of his lien claim. Its only effect regarding the lien claim may have been to make collection of any judgment easier. Respondent disregarded and then actively obstructed his client's decision to settle a matter. That is a violation of RPC 1.2(a).

1. Confidentiality of Information: Respondent breached his duty to maintain confidentiality and violated RPC 1.6(a) by disclosing information relating to his representation of Carol without authorization. RPC 1.6(a) provides: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). 5 In steps he took regarding his lien claim, Respondent repeatedly and intentionally disclosed embarrassing client information in public court filings that was detrimental to his former client. Respondent alleged in his motion to vacate that Carol engaged in fraud, misrepre- sentation, or other misconduct in concert with Jack for the sole purpose of avoiding the payment of legal fees owed to Respondent. Ex. 31. Respondent included in his pleadings descriptions of conversations he had had with Carol as well as specific emails received from her, all relating to the representation. That information included that she felt "mentally exhausted and just wanted this all to be over," or words to that effect, and was inclined to dismiss the litigation and deal with her husband directly. Ex. 32, Ex. 31. Respondent also included other emails he received from Carol in which she described mental health issues. In one email to Respondent Carol stated that her mental and physical health "could not take any more drama," that she was "overwhelmed," that she didn't have the

"time, money or strength to fight this 'no win' battle in the States," and that it all was making

her ill. Ex. 32. RPC 1.0(f): "Information relating to the representation of a client" denotes both 5information protected by the attorney-client privilege under applicable law, and other infor- mation gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. 149

In subsequent pleadings, Respondent revealed additional personal information, in particular statements she made about her ex-husband and his mother. Ex. 42. She would likely not want these statements made public if she was trying to maintain a cooperative working relationship with the two individuals. Respondent also disclosed a draft motion to show cause prepared by Carol for the dissolution proceeding that was never filed or otherwise made public prior to Respondent's disclosure. It contained references to Carol's status on disability for certain conditions, significant abuse at the hands of her ex-husband, and her allegation that her husband had engaged in outrageous conduct that we will not repeat here. Ex. 42. The duty of confidentiality at issue here is fundamental. Comment 2 to ABA Model Rule 1.6 notes that the trust involved when a client shares embarrassing or legally damaging information with their lawyer is "the hallmark of the client-lawyer relationship." Annotated Model Rules of Professional Conduct (Eight Edition, 2015) at 102. Breach of that trust is serious misconduct. An instructive case here is In re Huffman, 328 Or 567, 581, 983 P2d 534 (1999) (interpreting the predecessor to RPC 1.6). The attorney in Huffman sent a letter to his former client's new attorney accusing his former client of crimes and of committing bankruptcy fraud. Id. at 580-81. The court stated:

"The nature of the disclosures, the overall tone of the letter, and the circum-

stances surrounding its preparation lead us to conclude that the accused's purpose in sending the letter at least in part, was to embarrass [the former client] and to portray him as a criminal or a cheat in order to induce [the former client's new lawyer] to question [client's] character and to refrain from pursuing [client's] claims." Id. at 581. Such disclosures were found to be both embarrassing and detrimental to the client and violated the rule. Id. Respondent here disclosed his client's confidential information trying to suggest, at least in part, that Carol engaged in fraud to avoid payment of Respondent's legal fees. He also disclosed the information to challenge his client's judgment in dismissing the pending litigation. Respondent's objective in disclosing the information was to cast his client in a bad light, just as the lawyer in Huffman. Ultimately, he was suggesting to the court that Carol was not acting in her own best interest, which would be embarrassing in itself. The disclosures also revealed Carol's private thoughts and concerns regarding her ex- husband and his mother and highlighted her mental health issues. We find these disclosures similar to those in Huffman. We find that revealing them was likely detrimental and embar- rassing to Carol, and would be to anyone. Carol did not provide informed consent to the disclosures. Respondent was not impliedly authorized to make such disclosures either. Respondent might avoid a finding of misconduct here if his disclosures fall within the exception to the rule set forth at RPC 1.6(b)(4). It provides in relevant part that, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client. . . ." RPC 1.6(b)(4) (Emphasis added.).

Respondent's disclosures occurred in connection with a controversy between himself and his client over fees. Allowable disclosures, however, are limited to those a lawyer "reasonably believes necessary to establish a claim or defense" in such a controversy. See, e.g., Huffman, 328 Or at 581 ("That exception is limited by its terms, to disclosures that are necessary to establish a claim or defense on behalf of the lawyer in the controversy between the lawyer and the client." (Emphasis in original)). 6 In interpreting the term "controversy" in the rule our analysis must begin with the "text and context" as instructed by the Oregon Supreme Court in State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009), and PGE v. Bureau of Labor & Industries, 317 Or. 606, 859 P.2d 1143 (1993). See In re Newell, 348 Or. 396, 234 P.3d 967 (2010) (applying statutory construction principles to RPC 4.2). Under the court's approach, the words of the statute are paramount.

"[T]here is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes." Gaines, 346 Or. at 171 (internal quotation marks omitted); In re Nuss, 335 Or. 368, 372, 67 P.3d 386 (2003) ("In interpreting a statute, we begin with the text and context of the statute, giving words of common usage their plain, natural, and ordinary meaning." (citing PGE, 317 Or. at 610-11)). The word "controversy" is not defined in the RPCs. The plain, natural, and ordinary meaning of "controversy" is defined in Webster's New International Dictionary (3d Edition), 1993, as: "1 a : the act of disputing or contending b (1) a cause, occasion, or instance of dis- agreement or contention : a difference marked esp. by the expression of opposing views. . ." 7 The Bar argues that Respondent's disclosures did not occur in connection with a controversy with his client because there was no evidence that Carol disputed Respondent's entitlement to fees. The testimony offered that she expressed dissatisfaction with the fee arrangement and may have proposed a possible reduction of the fee, does not necessarily create a "controversy." If there was no "controversy," Respondent was not entitled to disclose any of the client information under the exception. For purposes of our analysis, however, we need not answer that question. We will assume that the filing of the lien satisfies the "controversy" requirement of the exception because, as discussed below, the disclosures Respondent made were not "reasonably necessary to establish" his lien claim, and thus do not fall within the exception. Respondent's notice of lien, by itself, was sufficient to establish his interest in the recovery of any settlement proceeds or judgment. The only action Respondent needed to take Respondent argued at trial that the standard is subjective, and that since Respondent 6testified that he reasonably believed the disclosures were necessary the exception applies.

Respondent is incorrect. RPC 1.0(l) states: "'Reasonable belief' or 'reasonably believes' when used in reference to a lawyer denotes that the lawyer believes the matter in question and that circumstances are such that the belief is reasonable." (Emphasis added.) That is an objective standard. The word "controversy" has other legal definitions arising from interpretation of the 7Case or Controversy Clause of the U.S. Constitution, Article III, Section 2, Clause 1, but there is no indication that the drafters of the rule intended the word to be understood in anything other than its plain, natural, and ordinary sense. 151

was the filing of his lien as notice to the world. The only information necessary for Respondent to establish his lien was that he had incurred fees specifically agreed upon with his client while representing her in the action, or that he was entitled to collect the reasonable value of his services. ORS 87.445 and 87.450. Respondent admitted as much when he testified regarding his hearing memorandum on the motion to vacate (which contained information relating to the representation of his client):

"It wasn't in support of the claim of lien. My claim of lien was a one-page document." Tr. at

1. In fact, this specific admission was one of many in a lengthy exchange between Respon- dent and his counsel at trial in which Respondent testified to specific reasons for many of his disclosures in the pleadings that had nothing to do with establishing his lien claim. Tr. at 483-

502.

The motion to vacate itself was not necessary to establish Respondent's claim. It was potentially beneficial to Respondent to continue the stipulated injunction in order to make collection of fees easier in the future, but it was not necessary in any way to establish the lien claim itself. If the motion to vacate was not "reasonably necessary to establish" Respondent's lien, the disclosures made to support it were not reasonably necessary to establish his claim either, and they cannot fall within the exception in RPC 1.6(b)(4). Any disclosure of client 8information in connection with the motion to vacate ran afoul of the rule. Accordingly, we find that Respondent violated RPC 1.6(a).

1. Duties to Former Clients: Respondent did not violate RPC 1.9(a)(1), but he did violate RPC 1.9(c)(1). The Bar charged violations of RPC 1.9(a) and RPC 1.9(c)(1). The first charged section, RPC 1.9(a), states: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless each affected client gives informed consent, confirmed in writing. 9

Respondent called the Bar's ethics hotline before filing his motion to vacate, but there 8was no testimony that he discussed the course of action he intended to take. Further, it is no defense to a charge of misconduct that a lawyer sought advice from the Bar before engaging in particular conduct. In re Gatti, 356 Or 32, 50, 333 P3d 994, 1004 (2014) (citing In re Ainsworth, 289 Or 479, 490, 614 P2d 1127 (1980)). For purposes of this rule, matters are "substantially related" if (1) the lawyer's repre-9sentation of the current client will injure or damage the former client in connection with the same transaction or legal dispute in which the lawyer previously represented the former client; or (2) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation of the former client would materially advance the

current client's position in the subsequent matter. RPC 1.9(d).

RPC 1.9(c)(1) then provides: A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known. The Bar argues that Respondent violated RPC 1.9(a) when he filed his motion to vacate. That rule prohibits a lawyer from representing "another person" in the same or a substantially related matter if the person's interests are adverse to the former client. The Bar says that Respondent violated the rule because, by appearing pro se, Respondent "represented" himself--"another person." We reject this reading of the rule. Harkening back to our mandate to interpret the Rules of Professional Conduct based on the plain meaning of the text, we believe the rule means what it says, namely, that the prohibition applies to a lawyer representing another person against a former client, not to a lawyer appearing on his or her own behalf adverse to a former client. If we accepted the Bar's reading, lawyers could never proceed pro se against former clients to recover fees without the former client's consent. A claim for unpaid fees would appear to be "substantially related" to the matter on which the lawyer represented the client. The lawyer's and former client's interests are clearly adverse. Thus, the lawyer cannot seek fees on his or her own behalf without consent if the lawyer is "representing another person" when speaking on his or her own behalf. The lawyer could, however, avoid this outcome by pursuing the fee claim using another lawyer to represent them because the lawyer seeking the fees is not "representing" anyone against the former client. That outcome is nonsensical. The prohibition in RPC 1.9(a) applies, in our view, only when the charged lawyer is actually representing a client, not when the lawyer is appearing on his or her own behalf. The prohibition in RPC 1.9(c)(1), however, does not have the same requirement that the charged lawyer be representing another person. Instead, it prohibits "use" of information

"relating to the representation to the disadvantage of the former client." The prohibition applies

except where "these Rules would permit or require" such use or the information has become generally known. The only applicable permission we can find in the Rules is the one discussed above, found in RPC 1.6(b). Accordingly, we believe the violation of this rule is co-extensive with the violation discussed immediately above. We find that Respondent did use the information relating to the representation of Carol Batchelor to her disadvantage in violation of RPC 1.9(c)(1). Chanti Matter Respondent filed a complaint on July 19, 2016 on behalf of plaintiff Clear Channel Broadcasting against various individual and corporate defendants. Ex. 61. The complaint alleged three causes of action. The first was a breach of contract claim against two individual defendants, Marc Mancuso and Sanjana Pahalad-Mancuso. It sought $22,386.68 in contract damages, plus interest at the contract rate of 18 percent per annum and attorney fees as provided for in the contract. Of all the defendants, the two individuals were the only signatories to the written contract. 153

The complaint then alleged claims for quantum meruit and unjust enrichment against all of the defendants, naming three limited liability companies, Mancuso Nutrition, LLC, Vier Gesundheit, LLC, and DSL Fitness, LLC, along with the two individuals. These claims requested damages in the same amount as the contract claim, $22,368.68, but sought interest at the statutory rate of nine percent per annum, and did not allege any right to the recovery of attorney fees. This approach was legally correct insofar as the entitlement to the higher interest rate and attorney fees sought in the first claim arose from the written contract to which the LLC defendants were not signatories. On September 1, 2016, an individual named Dominic Current filed an answer on behalf of two of the LLC defendants. Current was not a lawyer. ORS 9.320 requires that "a party that is not a natural person" must appear by attorney in all cases, "unless otherwise specifically provided by law." As a result, the answer filed by the two LLC defendants was legally defective. Respondent testified that he handles a significant amount of collection work and that he has often encountered this scenario, where a non-lawyer files an answer on behalf of a business entity. He testified that his normal practice is to file a motion to strike such answers based on the provisions of ORS 9.320. Respondent filed a document on September 6, 2016 captioned a Motion to Strike against the answer filed by Current. Ex. 63. The motion states that the answer should "be stricken immediately pursuant to ORCP 21A and E." ORCP 21A specifies certain defenses that may be asserted by a motion to dismiss. ORCP 21E allows for the filing of a motion to strike "(1) any sham, frivolous, or irrelevant pleading or defense or any pleading containing more than one claim or defense not separately stated; (2) any insufficient defense or any sham, frivolous, irrelevant, or redundant matter inserted in a pleading." Respondent did not confer with Current or anyone affiliated with the LLC defendants before filing the motion. Uniform Trial Court Rule (UTCR) 5.010 requires the moving party to make a good faith effort to confer before filing a motion pursuant to ORCP 21, "except a motion to dismiss: (a) for failure to state a claim; or, (b) for lack of jurisdiction. . . ." The moving party must file a certificate of compliance with the rule. Respondent's motion falls into neither of these exceptions to the conferral requirement. Although the motion is clearly denominated a "motion to strike," Respondent testified that he considered the motion he filed to be a motion to dismiss for failure to state a claim so that he was not required to confer. Tr. at 443. He testified that it is his normal practice to proceed without conferring when moving against answers filed by non-lawyers on behalf of entity defendants. Respondent's cites no authority supporting his practice. His motion is clearly not a motion to dismiss for failure to state a claim or to dismiss for lack of jurisdiction. In fact, Respondent's argument is contradicted by the title he placed on his motion--motion to strike-- which is undoubtedly covered by the conferral requirement. Another UTCR, 5.100, requires that any proposed order involving "a self-represented party" must be served on the party "not less than 7 days prior to submission to the court and be accompanied by a notice of the time period to object." (Emphasis added.) Respondent ignored this requirement as he did the requirement to confer. He electronically filed with the court his proposed order striking the answer the same day he filed and served the motion and order, by mail, on Current, denying defendants the seven-day period specified in the rule. 154

Respondent did not provide Current with any notice of the time period to object to the form of the order either. No opposition to the motion was filed, and the order was signed by Judge Jay

1. McAlpin on October 12, 2016. Ex. 64. Respondent testified that he complied with the rule by serving his proposed order when he filed the motion to strike. This approach is problematic. ORCP 14B(2) governed what happened next. It provides that, "If the court grants a motion and an amended pleading is allowed or required [as would be the case here], that pleading must be filed within 10 days after service of the order, unless the order otherwise directs." The order striking the answer made no mention of the time allowed for filing an amended answer. There is no evidence that the order was served on the LLC defendants, other than when filed with the motion on September 6, 2016. This would mean that the LLC defendants' amended answer needed to be filed within ten days of September 6, 2016, which was almost a month before the court even granted the motion. Clearly the intent of the ORCP and UTCR is for proposed orders to be served on opposing parties after a motion has been granted, not before. In any event, no amended answer was filed, and on November 15, 2016, Respondent filed a motion for an order of default against the two LLC defendants whose answer had been stricken. Respondent did not file or serve a notice of intent to apply for the order of default on Current or any other representative of the LLC defendants. ORCP 69B(2) provides that if a party "has filed an appearance in the action, or has provided written notice of intent to file an appearance, then notice of the intent to apply for an order of default must be filed and served at least 10 days, unless shortened by the court, prior to applying for the order of default." (Emphasis added.) Respondent testified that he did not consider the answer filed by Current to be an

"appearance" since it was not filed by an attorney, and he was thus not obligated to provide

notice of intent to seek the order of default. Respondent provided no authority in support of his position. The rule does not say that it only applies to a party who has filed an appearance by an attorney in the action. Moreover, Respondent should have considered the LLC defendants' stricken answer at least to be a written notice of their intent to appear. Respondent's motion for an order of default was flawed from the outset. It also suffered from significant additional defects. ORCP 69C requires a motion for an order of default to be accompanied by an affidavit or declaration setting forth certain facts necessary to establish entitlement to the default. An important statement an attorney must swear to is that "the party against whom the order is sought has failed to appear by filing a motion or answer. . . ." ORCP 69C(1)(b). Respondent did not file the required affidavit or declaration in support of his motion making any of the required representations, including that one. He provided no explanation for this failure when he testified at trial. Defendants filed no opposition to the motion. Despite the lack of the required document from Respondent, the court granted the motion for default ex parte on November 25, 2016, against the two LLC defendants. Ex. 67. More than six months later, on June 12, 2017, Respondent filed a motion for entry of a money judgment based on the default against the LLC defendants. Respondent this time did file the required affidavits, an Affidavit of Indebtedness, supporting the amount of damages 155

claimed, an Affidavit of Attorney Fees, supporting his request for attorney fees, and an Affidavit of Costs and Disbursements, itemizing the recoverable items. The Affidavit of Indebtedness and the Affidavit of Attorney Fees contained false statements. The Affidavit of Indebtedness stated in part, "The amounts that plaintiff seeks in the Judgment by Default are the amounts clearly stated in the pleading and prayer," which he swore was $22,386.68 plus contractual interest at the rate of 18 percent per annum together with reasonable attorney fees. Ex. 69. The problem with these statements is that the claims against the LLC defendants were not based on the written contract, they were for quantum meruit and unjust enrichment. Accordingly, stating that the LLC defendants were subject to an 18 percent interest rate and liability for attorney fees on the pleaded claims was false. Liability for those two items only arose by the terms of the written contract. Respondent also falsely stated in the Affidavit of Attorney Fees that "Plaintiff is entitled to recover its reasonable attorney fees herein pursuant to the parties' contract as more fully described in plaintiff's complaint" and tallied the amount of those fees at $5,417.50. Ex.

1. The General Judgment that Respondent submitted duplicated the same false statements regarding the LLC defendants' liability. Defendants filed nothing in response to the motion for entry of the default judgment. The court signed the judgment ex parte on June 13, 2017, thus subjecting the LLC defendants to inappropriate liability for prejudgment interest of $6,127.20 and for attorney fees of $5,417.50. In late June 2017, the two LLC defendants finally retained an attorney, Lonn T.W. Johnston (Johnston). Between June 28, 2017 and July 19, 2017, Johnston contacted Respon- dent by phone and notified him that there were "errors" in the default judgment. Respondent claimed he did not understand that the errors included the interest rate and attorney fee award until September of 2017. Tr. at 451. He admitted, however, in an earlier written response to the Bar that he was aware by July 19, 2017 that the interest rate and award of attorney fees was challenged by Johnston. Ex. 88. Respondent's written admission is clear and convincing evidence to us that he knew of these specific defects by July 19, 2017. Respondent confirmed those errors by reviewing the judgment pleadings but took no action to correct the affidavits or the judgment at that time. On September 20, 2017 and September 22, 2017, Johnston contacted Respondent again regarding the errors in the judgment. Respondent still did nothing to correct the false statements. Finally, on October 6, 2017, Respondent filed a "Corrected Default Judgment and Money Award." Ex. 79. However, Respondent corrected only the prejudgment interest rate, leaving the improper award of attorney fees in the corrected judgment. Respondent did not make any effort to correct the false statements contained in his sworn affidavits, which remained part of the court record. He did not advise the tribunal that he had made such misstatements. Johnston had also asked Respondent to set aside the default based on the failure to provide the required notice to the LLC defendants, but Respondent would not agree. Johnston then had to file a motion to set aside the default judgment and order. Ex. 80. Respondent opposed the motion, and claimed that the approximately five months that had passed since 156

entry of the default judgment was unreasonably long. In Respondent's opposition, he does not advise the tribunal of the false statements in his affidavits. Ex. 81. A hearing took place on December 11, 2017 before Lane County Circuit Court Judge Suzanne Chanti. The judge granted the motion to set aside the default order and judgment. Ex. 82. The court held that the judgment was void, citing in her order Respondent's failure to give notice of intent to seek default to the LLC defendants and the inclusion of improper items in the money awards. Ex. 86. The judge was troubled by Respondent's handling of the case. She concluded that she was required to notify the Bar of Respondent's conduct. She did so by letter dated January 29, 2018. Ex. 87. CHARGES

1. Candor Toward the Tribunal: Respondent failed to correct false statements of material fact in default judgment pleadings after being notified of the errors in violation of RPC 3.3(a)(1). RPC 3.3(a)(1) states: A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. RPC 3.3(a)(1). We accept Respondent's testimony that he made the false statements in his affidavits and the default judgment regarding his client's entitlement to prejudgment interest and attorney fees inadvertently. Respondent, however, admitted that he was aware of these errors by at least July 19, 2017. He took no action to correct these statements for two-and-a-half months, only acting to correct some, but not all, of the false statements on October 6, 2017. We find that this failure to act constituted a knowing failure to correct the false statements in violation of the rule. Although knowingly making any false statement of fact or law to a tribunal is pro- hibited, knowing failure to correct a false statement of fact is only misconduct if the false statement was material. A misrepresentation is material if it is likely to affect the decision- making process of the recipient. Errors in a judgment have been found to be material when they sufficiently affect the rights or obligations of the parties. See Mullinax v. Mullinax, 292 Or 416, 425, 430-31, 639 P2d 628 (1982) (finding that a $50 per month reduction in a wife's child support "materially altered rights or obligations determined by the prior judgment" for purposes of determining the timely filing of an appeal). The errors here imposed significant additional monetary burdens on the defendants. We find that the false statements here were material. Although the Bar need not prove actual reliance to show a violation of the rule (In re Brandt/Griffin, 331 Or 113, 10 P3d 906 (2000)), a judge actually relied on Respondent's false statements here when she signed a default judgment imposing the additional and unwarranted financial burdens on the defendants. Neither party cited authority discussing how quickly a lawyer must act to correct a false statement made to a tribunal, nor have we found any. Courts must rely on lawyers to be accurate and tell the truth. Failure of a lawyer promptly to correct an error upon discovery may cause additional harm to a party or the legal proceeding. The longer a lawyer waits to correct 157

a false statement of material fact or law, the more potential for harm. In our view, once a lawyer learns that a false statement has been made to a tribunal, correcting that error should move to the top of the lawyer's to-do list. Respondent did not do so here, and we find that an unexcused two-and-a-half-month delay constitutes a knowing failure to correct. In addition, Respondent did nothing to correct the false statements contained in his sworn affidavits. The rule makes it a violation to "fail to correct a false statement . . . previously made to a tribunal." This obligation is not flexible under the terms of the rule. Lawyers should be jealous of their reputations for truthfulness before a tribunal, and should err on the side of strict compliance when viewing the obligation to correct false statements they make. Respondent's attitude toward his false statements appears cavalier at best. The Oregon Supreme Court has treated lawyer misrepresentations in the context of an ex parte presentation to a judge, such as we have here, very seriously. See In re Greene, 290 Or 291, 297, 620 P2d 1379 (1980) (involving a lawyer's intentional failure to disclose relevant facts to the court). In Greene, the Supreme Court stated:

"Our experience has been [that] all judges regularly rely upon the candor, honesty and integrity of the lawyer in handling ex parte matters which are presented to them. . . . Judges must be able to rely upon the integrity of the lawyer." Id. Respondent's delay was not reasonable. He waited more than two months to take steps to correct some of his false statements. It further appears from the record that he only acted after continued pressure from Johnston. We are concerned that Respondent might never have corrected the errors had Johnston not pressed the issue. Once Respondent did act, he failed to correct all material misstatements, leaving the improper attorney fee award in the judgment. Respondent blamed inadvertence for this failure, but his response to the situation and his testimony at trial exposed a casual approach to his ethical obligations that we find unacceptable. Respondent never made another attempt to correct the record. He failed to act even after Johnston filed a motion to set aside the default judgment. Respondent objected to the motion and appeared at oral argument before Judge Chanti with the false statements still in the record. It is no surprise the judge complained to the Bar after learning what transpired. Respondent had a duty to the legal system to correct the material false statements in his affidavits and in the default judgment within a reasonable time--especially given the posture in which the errors occurred. Respondent's conduct caused harm to the integrity of the court system, which relies on lawyers to tell the truth and act promptly to correct material false statements in court filings. We find that Respondent violated RPC 3.3(a)(1).

1. Conduct Prejudicial to the Administration of Justice: Respondent violated RPC 8.4(a)(4) by disregarding multiple procedural rules and failing to correct false statements of material fact within a reasonable time. RPC 8.4(a)(4) states: It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.

The Oregon Supreme Court has explained the elements that must be established to prove a violation of this rule:

"To establish a violation of the rule prohibiting a lawyer from engaging in

conduct prejudicial to the administration of justice, RPC 8.4(a)(4), the Bar must prove that (1) the lawyer engaged in 'conduct,' i.e., either did something the lawyer should not have done or failed to do something the lawyer should have done; (2) the conduct occurred during the 'administration of justice,' i.e., during the course of a judicial proceeding or an analogous proceeding; and (3) the lawyer's conduct resulted in 'prejudice' to either the functioning of the pro- ceeding or to a party's substantive interests in the proceeding. To prove prejudice, it must be shown that the lawyer engaged 'either in repeated acts causing some harm to the administration of justice or a single act that caused substantial harm to the administration of justice.' The administration of justice includes both the procedural functioning of the trial or other proceeding and the substantive interests of the parties." In re Sione, 355 Or 600, 608, 330 P3d 588 (2014) (citations omitted). The Bar does not need to prove any particular mental state. As to the first element, Respondent took actions he should not have taken and failed to take required steps under the Oregon Rules of Civil Procedure and the Uniform Trial Court Rules handling the case against the LLC defendants. Respondent failed to confer with the LLC defendants before filing his motion to strike. A motion that fails to comply with the conference requirement must be denied. UTCR 5.010(1). Respondent improperly obtained the order striking the LLC defendants' answer. Respondent failed to serve the LLC defendants properly with his proposed order and failed to notify them of their ability to object to the order. Whether compliance with this procedural requirement would have made a difference is not the issue--this is merely another of Respondent's "repeated acts" that caused harm to the administration of justice. Respondent failed to file and serve a notice of intent to apply for default against those companies pursuant to ORCP 69 B(2). Respondent's claim that the LLC defendants had not actually appeared is specious--they did so defectively, but they did appear. Moreover, the filing of their defective answer constituted written notice of their intent to appear in the case. Respondent then failed to file an affidavit of default as required by ORCP 69 C, perhaps because in doing so he would have had to swear that the LLC defendants had not appeared in the case. In any event, the requirements in the rules are not optional. The motion for the order of default should have been denied on this basis, but it was not because it was considered ex parte, under circumstances in which the court was trusting Respondent that he had fulfilled his obligations under the rules. Respondent then filed the Motion for Entry of Judgment by Default against the LLC defendants supported by affidavits containing false statements of material fact, which were repeated in the form of judgment submitted. Again, in reliance on Respondent's trust-worthiness, the court signed the judgment ex parte. After Johnston advised Respondent of the misstatements, he took no action to correct them. The step he took months later was insufficient. Ultimately, Respondent never filed a 159

fully corrected judgment or truthful affidavits. Johnston then had to file a motion to set aside the defaults, which Respondent opposed, despite the abundant defects in his handling of the defaults. This forced the court to have to spend time considering the matter and hearing argument. The first element of the charge is established. The second element is also satisfied. This conduct occurred during the course of a judicial proceeding. The third element is satisfied as well. Respondent's repeated errors caused some harm to the administration of justice, including both the procedural functioning of the court and the substantive interests of the parties. Respondent's failure to abide by the ORCPs required the expenditure of attorney time and court time, which can constitute causing harm to the administration of justice. See In re Kluge, 335 Or 326, 346, 66 P3d 492 (2003) ("The accused's conduct prejudiced the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the judge] to undo the accused's actions." citing In re Gresham, 318 Or 162, 166, 864 P2d 360 (1993)). Respondent's conduct also harmed the substantive interests of the LLC defendants by subjecting them to a clearly excessive money judgment. He then left the judgment in place, failing to remedy the situation for months, and only then because the court had to become involved to clean up the mess. This course of conduct violated RPC 8.4(a)(4). Kimball Matter In November 2016, Kenneth Kimball and his girlfriend Amoreena Knittel hired Respondent to investigate and pursue potential claims related to Kimball's purchase of a home. After the purchase they discovered the home had significant defects. Kimball paid Respondent a retainer of $825. During the first two months of the engagement, Respondent performed some work on the case. Knittel was the primary contact with Respondent's office. Tr. at 207. She provided him with reports and information that he asked for. Respondent did nothing on the case though after January 2017. In May of 2017, Respondent sent Kimball a bill for $206.20 showing he had applied that amount against the balance in trust. Ex. 105. Respondent testified that there was a clear understanding that the clients were to gather documents and then they would make a decision about how to proceed. Tr. at 387. He claimed that the clients were to complete repair work to have a "liquidated" damage amount before he needed to do anything else on the case. Tr. at 393. Knittel's recollection differed significantly. She testified that she called Respondent's office often in December 2016 and January 2017. Tr. 210. Respondent's records show that she left a voice mail on December 22. Respondent did not reply. Tr. at 209-10. Respondent's records also show that she spoke with someone in his office on January 17, 2017. Knittel testified that she was "cranky" when she called because of Respondent's lack of response to her inquiries. Tr. at 211-12. She said that Respondent's employee told her to quit calling and to email instead. Id. Knittel, using Kimball's email, sent Respondent a message on January 27, 2017, advising him that she and Kimball would "like to know how our case is progressing." Ex. 102. Again, they received no answer from Respondent. Tr. at 212-13. Knittel testified that she 160

called Respondent's office at least once a week during this time up until she and Kimball broke up and she moved out in April of 2017. Tr. 213-14. On May 15, 2018, after having heard nothing from Respondent for a year, Kimball emailed Respondent and requested a status update. Ex. 103. After receiving no reply, Kimball sent another email on May 30, 2018, asking that Respondent return the retainer if Respondent was not going to take further action on the case. Respondent still did not reply. On June 24, 2018, Kimball filed a grievance with the Client Assistance Office (CAO). The CAO forwarded Kimball's grievance to Respondent on July 6, 2018. Ex. 106. On July 9, 2018, Respondent finally emailed Kimball and asked him to call to set up a meeting. Ex. 107. On July 25, 2018, Respondent wrote to Kimball and Knittel, enclosing the $618.80 remaining on the retainer, and told them he was still willing to represent them, but that he could understand why they would want to terminate the representation. Ex. 108. He also asked them to contact him to discuss resolution of the Bar complaint Kimball filed. Kimball later emailed Respondent that he would prefer to resolve their issues without an in-person meeting. Ex. 109. Respondent then wrote to Kimball on August 6, 2018, stating that he believed Kimball and Knittel needed to resolve their claims or file suit by October 21, 2018. Ex. 109. Respondent also asked whether they wanted him to represent them any longer. On August 7, 2018, Kimball responded that he would no longer need Respondent's services. Id. Knittel presented as a credible witness. She was forthright in her answers. Her demeanor was calm. She answered directly and responsively. Moreover, she was a completely disinterested witness by the time she testified at trial. She and Kimball were no longer involved and she had nothing to gain from testifying falsely. We found her testimony to be clear and convincing on the issues she discussed. CHARGES

1. Neglect of a Legal Matter: Respondent violated RPC 1.3 by failing to take any action on his client's case for approximately 18 months. RPC 1.3 provides: A lawyer shall not neglect a legal matter entrusted to the lawyer. In order to prove a violation of the rule the Bar must show that a lawyer failed, over time, to act with reasonable diligence. A mere act of negligence is not sufficient to establish misconduct, but a course of neglectful conduct or an extended period of neglect will violate the rule. In re Jackson, 347 Or 426, 435, 223 P3d 387 (2009). "An extended period of neglect" in this analysis depends on the circumstances of the case. Failure to act for a short time may constitute neglect if a matter is urgent. See In re Meyer, 328 Or 220, 970 P2d 647 (1999) (failing to act over two- month period when case required immediate action was violation). Our Supreme Court has found neglect where a lawyer took a case but then failed to return calls, perform any work on the matter, return original documents, or return a cash advance over almost four months. In re Recker, 309 Or 633, 789 P2d 663 (1990). The court has also found neglect when, over the course of two years, a lawyer, after filing a construction lien for his client, determined that the case lacked merit but did not tell the client of that conclusion, did not take any other action in the case, and did not return the client's phone calls. In re Dugger, 299 Or 21, 697 P2d 973 (1985).

Here, Respondent did nothing on this case from January 2017 until July 2018. We find Knittel's testimony that Respondent ignored her inquiries more credible than Respondent's claim that his inaction was part of a plan understood by his clients. We find that the Bar proved by clear and convincing evidence that Respondent violated RPC 1.3.

1. Communication: Respondent violated RPC 1.4(a) when he did not respond to his client's status requests until after the client filed a Bar complaint. RPC 1.4(a) states: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. We consider multiple factors in evaluating a charge under this rule. Among these are the length of time a lawyer failed to communicate; whether the lawyer failed to respond promptly to reasonable requests for information from the client; and whether the lawyer knew or a reasonable lawyer would have foreseen that a delay in communication would prejudice the client. In re Groom, 350 Or 113, 124, 249 P3d 976 (2011). Respondent ignored Knittel's inquiries during the first months of the engagement. She ceased calling in April when she and Kimball ended their relationship. Silence ensued until May 2018, when Kimball emailed Respondent twice requesting an update. Kimball also 10asked for the return of his retainer in his second email. Respondent failed to reply to either email. Kimball then filed a complaint with the Bar. Respondent finally contacted Kimball after he was advised that the Bar complaint had been made. Respondent might never have responded to Kimball had the client not contacted the Bar to complain. Moreover, a reasonable lawyer should have been concerned at this point about possible prejudice to the client's claims after so many months of silence and inaction. Respondent's approach to communication with Kimball was as cavalier as his approach to the procedural rules and Rules of Professional Conduct in the Chanti matter. We find that Respondent's failure to communicate with Kimball until the Bar complaint was filed is a violation of RPC 1.4(a). SANCTION

and the actual or potential injury caused by the conduct. Once we analyze these factors, we make a preliminary determination of the presumptive sanction. We may then adjust the sanction based on recognized aggravating or mitigating circumstances. Respondent testified that his billing software should have produced occasional state-10ments to Kimball showing his retainer balance during this time. Kimball denied receiving any. Respondent had no file copies to corroborate his testimony. Most importantly, a routine billing statement would not give the client any substantive information, and certainly would not

substitute for responding to Knittel's specific inquiries.

The most important ethical duties a lawyer owes are those to clients. ABA Standards at 5. In the Batchelor matter, Respondent violated his duty of loyalty to his client. He violated his duty to keep information relating to his representation confidential, to abide by his client's decisions regarding the objectives of the representation, and to avoid using information gained during the representation to his client's disadvantage. ABA Standards 4.2 and 4.3. In the Chanti matter, Respondent violated the duty he owed to the legal system by failing to correct, in a sufficient and timely fashion, false material statements previously made to the court and by engaging in conduct prejudicial to the administration of justice. ABA Standard 6.1. In the Kimball matter, Respondent violated his duty to act with reasonable diligence and promptness, which includes the obligation to timely and effectively communicate. ABA Standard 4.4. The ABA Standards recognize three mental states. The most culpable mental state is that of "intent," when the lawyer acts with 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. Id. "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. Most of Respondent's conduct was knowing. Some of Respondent's conduct was inten- tional. Some of Respondent's conduct appears to have been merely negligent. In the Batchelor matter, Respondent acted either intentionally or knowingly. Respon- dent pursued his own interest in being paid. In doing so, he concluded that expansive disclosure of information relating to the representation of Carol was justified, not to establish his attorney fee lien, but to enhance his prospects for collection. Respondent repeatedly and intentionally disclosed embarrassing and detrimental information from his client in multiple pleadings. Respondent also required Carol to take the witness stand and answer his questions relating to the representation, causing her further distress. After she retained counsel and filed her lawsuit against him, Respondent continued to pursue his motion to vacate, and continued to use the information adverse to his former client. He did not relent until August 10, 2018. In the Chanti matter, Respondent, an experienced collections lawyer, consistently and, at least, negligently, failed to follow the rules regarding pleadings, service, and default judgments. Respondent also, at least negligently, filed affidavits and a judgment containing false statements. After being advised of the false and material information he had provided to the court, Respondent knowingly waited months before taking any action to correct the misstatements. Respondent negligently failed to correct all of the misstatements. In the Kimball matter, Respondent at least negligently failed to take any action on the matter for an extended time and failed to communicate adequately with his clients.

For the purposes of determining an appropriate disciplinary sanction, we may take into account both actual and potential injury. ABA Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Standards at 9. Respondent's clients and the legal system have all sustained actual injury here. Carol suffered from PTSD and depression, both of which were aggravated by Respondent's mis- conduct. "Client anguish, uncertainty, anxiety, and aggravation are actual injury under the disciplinary rules." In re Snyder, 348 Or 307, 321, 232 P3d 952 (2010). Carol was also forced to hire a second lawyer to counter Respondent's misconduct. In the Chanti matter, Respondent's failure to follow the procedural rules and to correct false and material statements he made to the court ex parte caused injury to the legal system. See In re Davenport, 334 Or 298, 319, 49 P3d 91 (2002) (finding that "the public's confidence in the integrity of the law is undermined if lawyers reject its rules and application"). We have already found that Respondent's conduct actually harmed the administration of justice. As to the Kimball matter, a client sustains actual injury when an attorney fails to actively pursue the client's case. See, e.g., In re Parker, 330 Or 541, 546-47, 9 P3d 107 (2000). Respondent's lack of communication and neglect caused Kimball and Knittel stress, frustration, and anxiety. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000); In re Schaffner, 325 Or 421, 426-27, 939 P2d 39 (1997). The following ABA Standards discuss the applicable presumptive sanctions: Disbarment is generally appropriate when a lawyer, with the intent to benefit the lawyer or another, knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client. ABA Standard 4.21. Disbarment is generally appropriate when a lawyer, without the informed consent of client(s), represents a client in a matter substantially related to a matter in which the interests of a present or former client are materially adverse, and knowingly uses information relating to the representation of a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client. ABA Standard 4.31(c). Suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client. ABA Standard 4.22. Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. ABA Standard 6.12

Suspension is generally appropriate when a lawyer causes an adverse or potentially adverse effect on a legal proceeding. ABA Standard 6.12. Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. ABA Standard 4.43. We are not persuaded that the level of intent is present here that would make disbarment the presumptive sanction. Accordingly, we find that the presumptive sanction here for the multiple offenses involved is a substantial suspension. Aggravating Factors A prior record of discipline. ABA Standard 9.22(a). Respondent has been admonished or sanctioned in four prior disciplinary proceedings. These proceedings each constitutes a prior disciplinary offense or past misconduct for purposes of assessing a sanction here. Each sanction preceded Respondent's acts that led to this proceeding. Some involved similar viola-tions; namely, violating RPC 1.4(a), and RPC 8.4(a)(4) or its predecessor. In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018); In re Jones, 326 Or 195, 200, 951 P2d 149 (1997) (to qualify as a prior disciplinary offense, the prior offense must have been adjudicated before the imposition of the current sanction and the similarity and temporal relationship between the prior offense and current offense are relevant). In 2004, Respondent was reprimanded for violating DR 1-102A(4) (engaging in conduct prejudicial to the administration of justice), the predecessor to RPC 8.4(a)(4), after he negligently signed a motion for issuance of a bench warrant that inaccurately claimed an opposing party had failed to appear at a show cause hearing. The court issued the warrant, and police later arrested the opposing party pursuant to the warrant and transported her to jail. In re Slayton, 18 DB Rptr 56 (2004). In 2010, Respondent was suspended for 60 days for violating RPC 8.4(a)(3) (misre-presentation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice). In re Slayton II, 24 DB Rptr 106 (2010). Respondent represented to a court that he could not appear for trial due to a conflict with a vehicular homicide trial. Upon questioning from the court, Respondent admitted that the trial was not for vehicular homicide, but actually involved a citation issued against him personally for jaywalking. In 2012, Respondent was admonished for violating RPC 1.4(a) (failing to communicate with client). In re Slayton, OSB Case No. 12-127. Letters of admonition are evidence of past misconduct if the underlying misconduct was of the same or similar type as the misconduct at issue in the case before us now. In re Cohen II, 330 Or, 489, 500-01, 8 P3d 953 (2000) (citing In re Jones III, 326 Or 195, 200, 951 P2d 149 (1997)). In 2014, Respondent was suspended for 120 days, with the entire suspension stayed pending a two-year probation, for violating RPC 1.4(a) (failing to communicate with his client) and RPC 8.1(a)(2) (knowingly failing to respond to a request for information from a disciplinary authority). In re Slayton III, 28 DB Rptr 227 (2014). In representing a client in a dissolution proceeding, Respondent failed to notify his client that he intended to discontinue 165

working for her or to withdraw, and failed to respond to multiple telephone calls from her. He failed to respond to Disciplinary Counsel's Office during its investigation until after DCO sought his administrative suspension under BR 7.1. A dishonest or selfish motive. ABA Standard 9.22(b). Most, if not all, of Respondent's misconduct in the Batchelor matter was selfishly motivated. Respondent refused to abide by his client's decisions regarding the representation because he was concerned about protecting his attorney fee rights. He deliberately placed his own financial interests above his duty of loyalty to his client. Respondent's conduct in the Chanti matter was dishonest insofar as he knew he had submitted false material statements to the court ex parte, and he allowed those misrepre- sentations to remain in the record for months. A pattern of misconduct. ABA Standard 9.22(c). Respondent was previously admonished, reprimanded, and suspended for six separate violations, many of which are also present in this proceeding. "[A] pattern of misconduct does not necessarily require proof of a prior sanction. Rather, that aggravating factor bears on whether the violation is a one-time mistake, which may call for a lesser sanction, or part of a larger pattern, which may reflect a more serious ethical problem." In re Bertoni, 363 Or at 644. The rule violations at issue in this disciplinary proceeding are similar to Respondent's prior violations and establish a pattern of misconduct that warrants an enhanced sanction. The violations reflect a larger pattern of disregard for the interests of Respondent's clients and his obligations to the legal system and the legal profession. The Bar points out that Respondent's misconduct here began right after he completed his disciplinary probation. Further, the Chanti case showed a disturbing pattern of flouting or ignoring the procedural rules. Given Respondent's high-volume collections practice we are left with serious concerns about whether other defendants may have been improperly defaulted in Respondent's practice over the years. Multiple offenses. ABA Standard 9.22(d). This factor speaks for itself. Refusal to acknowledge wrongful nature of conduct. ABA Standard 9.22(g). All respondents have a right to defend themselves vigorously against disciplinary charges. However, when a respondent has "acknowledged the factual accuracy of the Bar's complaint in nearly all material respects, but . . . claimed (and still claims) that that conduct was not blameworthy . . . [he] has failed to acknowledge the wrongful nature of his conduct." In re Strickland, 339 Or 595, 605 n 9, 124 P3d 1225 (2005). Respondent here has taken such a position with regard to the Carol Batchelor matter, where he claims his conduct was completely justified. In the Chanti matter, Respondent has admitted to some negligence, but is unwilling to acknowledge the breadth and seriousness of the violations at issue. Vulnerability of victim. ABA Standard 9.22(h). Carol Batchelor appears to have been a vulnerable individual, a fact that Respondent appeared to try to take advantage of in pursuing his motion to vacate. Substantial experience in the practice of law. ABA Standard 9.22(i). Respondent has practiced law in Oregon since September 19, 1986. 166

Mitigating Factors. Respondent demonstrated no mitigating factors. Respondent offered, without further elaboration, certain medical records showing that he was diagnosed with bladder cancer a number of years ago and has a substantial treatment history. Ex. 508. The Bar suggested that Respondent would raise this issue to claim personal or emotional problems as a mitigating factor. ABA Standard 9.32(c). Respondent provided us with no evidence showing how the condition, or the treatment for the condition, related in any way to the conduct at issue. For a condition to be a mitigating factor, a respondent must show a causal connection between the event, condition or impairment, and the conduct at issue. See Commentary, Standards § 9.3. In assessing a proper sanction, we are guided by the proposition that sanctions in disciplinary matters are not intended to penalize the accused lawyer, but are intended to protect the public and the integrity of the profession. In re Stauffer, 327 Or at 66. Appropriate discipline deters unethical conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992). Oregon case law confirms that a substantial suspension is appropriate here. Respondent's conduct toward Carol Batchelor was knowingly aggressive. He sought to take advantage of her weaknesses by knowingly using embarrassing information he learned from the representation. His conduct also struck at the heart of the client-attorney relationship. It violated the trust that an attorney will keep a client's information inviolate. If such violations do not receive a substantial sanction the public's trust in the profession will be eroded. The closest case in this instance is Huffman. That case also involved a fee dispute between a lawyer and his former client in which the lawyer disclosed confidential and embarrassing information in a threatening letter to his former client's new lawyer. The court in Huffman contemplated a sanction of disbarment but ultimately determined a two-year suspension was warranted due to the one-time nature of the disclosures and the accused attorney's lack of a prior disciplinary record. The attorney in Huffman also threatened criminal prosecution to gain an advantage in a civil matter, a charge not present here, but Respondent's misconduct regarding disclosure of information relating to his representation of a client is arguably more egregious than that in Huffman in volume and frequency. In In re Lackey, 333 Or 215, 222-23, 37 P3d 172 (2002), the attorney was suspended for one year for a single disclosure of client confidences and secrets to the press. The court rejected the attorney's claim that the disclosure was authorized to expose government corrup- tion. The court concluded that the lawyer made the disclosures in an attempt to seek revenge against his prior employer after his forced resignation. Here, Respondent made multiple improper disclosures, again more egregious than Lackey. If our analysis were limited to the Batchelor matter alone, we might have limited the sanction to a one-year suspension. When we add in the other matters, the Chanti matter in particular, and the aggravating factors outlined above, a longer suspension is required. In the Chanti matter, Respondent's cavalier attitude toward his misstatements to the tribunal leads us to agree with the Bar that we should treat the misconduct with the same gravity with which the court views a lawyer's misrepresentation to a court. The court has imposed substantial suspensions in such circumstances. The Bar provided us with two examples.

In In re Greene, 290 Or at 293, the accused attorney's wife was the conservator of her children's estate, and the lawyer prepared and submitted ex parte on her behalf a petition requesting permission to invest conservatorship funds in real estate. The accused attorney, however, intentionally failed to disclose to the probate court that the investment was the home owned by his wife, the conservator. Id. at 294. Had the attorney disclosed that fact in the petition, the judge might not have authorized it. Id. at 295. The court suspended the attorney for 60 days. Id. at 299. In In re Worth, 337 Or 167, 92 P3d 721 (2004), the accused attorney made misrepre- sentations to the court regarding why he had not moved his client's civil case forward or complied with the court's order that an arbitration of the matter be set by a date certain. The lawyer received a 120-day suspension for violation of DR 1-102(A)(3). With regard to the Kimball matter, and in contrast to the ABA Standards, the Oregon Supreme Court typically imposes a presumptive sanction of at least 60 days for freestanding knowing neglect. In re Knappenberger, 336 Or 15, 32-33, 90 P3d 614 (2004); see also In re Redden, 342 Or 393, 153 P3d 113 (2007) (60-day suspension imposed for single serious neglect despite that young, inexperienced lawyer had no prior discipline); In re LaBahn, 335 Or 357, 67 P3d 381 (2003) (60-day suspension for neglect of tort claim and subsequent failure to notify client where aggravating and mitigating factors were equally balanced). The court has also imposed suspensions for lapses in communication. See, e.g., Snyder, 348 Or at 232 (attorney's failure to respond to his client's status inquiries, failure to inform the client of communications with the other side, and failure to explain the strategy attorney decided upon regarding settlement negotiations, resulted in 30-day suspension); In re Koch, 345 Or 444, 198 P3d 910 (2008) (attorney suspended for 120 days when she failed to advise her client that another lawyer would prepare a qualified domestic relations order for the client, and thereafter failed to communicate with the client and that second lawyer when they needed information and assistance from attorney to complete the legal matter); In re Coyner, 342 Or 104, 149 P3d 1118 (2006) (three-month suspension, plus formal reinstatement, was appropriate for attorney appointed to handle a client's appeal, who took no action and failed to disclose the ultimate dismissal to the client); Knappenberger, 337 Or at 33 (2004) (90-day suspension for attorney who appealed a spousal support determination but failed to keep the client informed of the status of the appeal, did not respond to the client's inquiries and essentially abandoned the client after oral argument). The Bar has previously reprimanded and suspended Respondent for similar conduct. He has been subject to probation. This prior discipline did not deter Respondent's current misconduct. Respondent has demonstrated a persistent disregard for the Rules of Professional Conduct and the duties that he owed to his clients, the legal system, and the legal profession. Accordingly, we agree with the Bar that a suspension of 18 months is appropriate to deter future misconduct and to protect the public. We conclude that the Bar proved the alleged violations of RPC 1.2(a), 1.6(a), 1.9(c)(1), 3.3(a)(1), 8.4(a)(4), 1.3, and 1.4(a) by clear and convincing evidence. We find that the Bar failed to prove a violation of RPC 1.9(a). We order that Respondent be suspended from the practice of law for a period of 18 months beginning 30 days after this decision becomes final. 168

Respectfully submitted this 18th day of February 2021. /s/ Frank Alley Hon. Frank Alley, Trial Panel Member /s/ George McCully Dr. George McCully, Trial Panel Public Member

In re: ) ) Complaint as to the Conduct of ) Case No. 21-81 ) RICHARD F. ALWAY, ) )

Disposition: Violation of RPC 1.5(a), RPC 4.2(a), RPC 7.1, and RPC 7.5(a). Stipulation for Discipline. Public Effective Date of Order: November 12, 2021

Richard F. Always (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is publicly reprimanded for violation of RPC 1.5(a), RPC 4.2(a), RPC 7.1, and RPC 7.5(a). DATED this 12th day of November, 2021.

Richard F. Alway, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 26, 1977, and has been a member of the Bar continuously since that time, having his office and place of business in Marion County, Oregon.

On September 11, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violations of RPC 1.5(a), RPC 4.2(a), RPC 7.1, and RPC 7.5(a) of the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth all relevant facts, violations and the agreed- upon sanction as a final disposition of this proceeding.

Facts Since approximately 2005, Respondent used the firm name "Law Offices of Alway and Associates," which name appears on Respondent's letterhead. Respondent's firm name contains a misleading communication because Respondent has not been associated with other attorneys, except for a period of about two years from 2016 to 2018.

Oregon Revised Statute, section 125.095(2) provides that, "prior court approval is required before the payment of fees from the funds of a person subject to a protective proceeding when the payment is to . . . any attorney who has provided services relating to a protective proceeding."

In January 2017, Janice Hoglan (Hoglan) was the subject of a protected party proceeding, pursuant to a petition for a guardianship and conservatorship filed by her daughter, in Polk County Circuit Court case number 17PR00032 (protected party proceeding). On February 15 2017, Hoglan retained Respondent to represent her in the protected party pro- ceeding. Respondent charged and collected an $850 retainer fee directly from Hoglan. Respondent applied the $850 fee to pay himself on October 26, 2017. Respondent did not obtain court approval for his fee until November 16, 2017, when he obtained court approval of a fee statement that listed his outstanding fees and disclosed his prior fee.

On December 10, 2018, the court approved Limited Judgment for the appointment of successor professional conservator and professional guardian (collectively, the professional 171

fiduciaries) for Hoglan, replacing two family members in these roles. Both professional fiduciaries were represented by the same attorney. On March 6, 2019, the day of a motions- hearing, Respondent directly approached the conservator outside of the courtroom, asking to meet with her. The attorney for the professional fiduciaries was present, stated she represented both professional fiduciaries, and stated she should be included in any communications that Respondent would have with her clients. The attorney for the professional fiduciaries followed up that conversation with a letter dated March 18, 2019, informing Respondent to direct all further communication to her. Thereafter, on three occasions, on April 5, 2019, May 21, 2019, and June 5, 2019, Respondent contacted the professional fiduciaries by email, copying their attorney. Each time, Respondent's communication was on the subject of their representation.

Respondent admits that by charging and collecting a fee from Hoglan, a protected party, prior to court approval, he charged and collected an illegal fee, in violation RPC 1.5(a). Respondent further admits that by emailing the professional fiduciaries directly, he communi- cated with persons he knew to be represented on the subject of the representation and without prior consent from their lawyer, in violation of RPC 4.2(a). He further admits that by using the name "Law Offices of Alway and Associates" when he is a sole practitioner, he used a false or misleading firm name and letterhead, in violation of RPC 7.1 and RPC 7.5(a).

Sanction

stances.

1. Duty Violated. Respondent violated a duty owed to the legal system by
   communicating with a represented party. ABA Standard 6.3. Respondent violated a duty owed as a professional by using a misleading firm name and by charging an improper fee. ABA Standard 7.0.

2. Mental State. "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, while "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. ABA Standards at 9. Respondent was negligent in assessing whether the term "associates" in his firm name was misleading. Respondent negligently failed to realize that did not have permission to concurrently email the professional fiduciaries and their attorney. Respondent was also negligent in determining whether he needed court approval before charging Hoglan a retainer fee. 172

3. Injury. Respondent's actions in contacting the professional fiduciaries directly
   caused potential injury by causing them to act without the advice of legal counsel, but this is mitigated by the fact that as professional fiduciaries, they were experienced with the legal system. Respondent potentially could have injured his client, a protected party, by charging her a fee without court oversight. Respondent's firm name potentially could have injured a client who may have been influenced to retain him based on a misleading firm name.

4. Prior record of discipline. ABA Standard 9.22(a). In 2020, Respondent
   was reprimand by a trial panel in DB No. 19-96 for violations for RPC 1.4(a) (inadequate client communication) and 5.3(a) (inadequate supervision). The weight of this factor is limited by the fact that Respon- dent's current conduct is unrelated to and largely pre-dates his prior reprimand. See In re Jones 326 Or 195, 200, 951 P2d 149 (1997) (finding the following considerations important in analyzing prior mis- conduct: the relative seriousness, similarity, amount, recency, of the prior offense or offenses, as well as whether the attorney was sanctioned prior to engaging in the current misconduct).

5. Pattern of misconduct. ABA Standard 9.22(c). Respondent repeatedly
   emailed the professional fiduciaries. Respondent also used his mis- leading firm name for approximately 15 years, both before and after briefly employing associate attorneys. Respondent has been licensed to practice since September 26, 1977. Under the ABA Standards, reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of the legal proceeding. ABA Standard 6.33.

A public reprimand is in accord with prior cases. See, e.g., In re Reed, 21 DB Rptr 222 (2007) (stipulated public reprimand for attorney who, in addition to one instance of misconduct under RPC 8.4(a)(3), also used term "Reed and Associates" in his firm name despite being a sole practitioner); In re Joshua Trigsted, 32 DB Rptr 208 (2018) (stipulated reprimand for attorney who used "reply all" to send an emails to opposing counsel and that counsel's clients, after being instructed otherwise); In re Hammond, 34 DB Rptr 15 (2020) (stipulated fully- stayed suspension of 60 days for attorney who collected an illegal fee that wsa not in com- pliance with applicable regulations, when attorney had been previously reprimand twice for an illegal or excessive fee). 173

Respondent shall be publicly reprimanded for violations of RPC 1.5(a), RPC 4.2(a), RPC 7.1, and RPC 7.5(a), the sanction to be effective upon the Disciplinary Board's approval of this stipulation.

his suspension.

EXECUTED this 10th day of November, 2021. /s/ Richard F. Alway Richard F. Alway, OSB No. 770966 EXECUTED this 10th day of November, 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 21-85 ) BRAD LARSON, ) )

Disposition: Violation of RPC 1.15-1(e). Stipulation for Discipline. Effective Date of Order: November 17, 2021 This matter having been heard upon the Stipulation for Discipline entered into by Brad Larson (Respondent) and the Oregon State Bar, and good cause appearing, Respondent is publicly reprimanded for violation of RPC 1.15-1(e). DATED this 17th day of November, 2021.

Brad Larson, attorney at law (Respondent), and the Oregon State Bar (Bar) hereby

Oregon on September 27, 1991, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon. 175

On September 11, 2021, the State Professional Responsibility Board (SPRB) authorized formal disciplinary proceedings against Respondent for alleged violation of RPC 1.15-1(e) of the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth all relevant facts, the violation, and the agreed-upon sanction as a final disposition of this proceeding. Facts

Respondent represented a male individual (Client) on a personal injury claim arising from a motor vehicle accident (MVA 1). Respondent and Client signed a written contingent fee agreement, which provided that, if representation ended before Client's claim was resolved, Respondent would be entitled to an hourly fee for legal services performed prior to termination. Several months after Respondent began representing Client on MVA 1, Client was injured again in another motor vehicle accident (MVA 2). Respondent agreed to represent Client on a personal injury claim arising from MVA 2. Respondent contends that he and Client signed a new fee agreement with the same terms the agreement they signed for MVA 1, but he is unable to produce any written record of such an agreement for MVA 2.

Respondent settled Client's claim on MVA 1 in March 2020. Client terminated Respon- dent's representation by email dated May 13, 2020. Respondent received the MVA 1 settlement proceeds on May 15, 2020, and deposited them into his trust account. From the proceeds, Respondent paid himself 27.33% as his contingent fee and $669 in costs on MVA 1, and $3,512.50 in hourly fees for handling MVA 2. Respondent disbursed the net proceeds to Client on June 11, 2020. Respondent provided Client an invoice showing that he had billed $375 per hour for a variety of tasks on MVA 2, including $1,125, on May 13, 2020 (the day Client terminated the representation), for a telephone call with Client and for preparing and mailing a settlement demand package. Client had not had the opportunity to review Respon- dent's legal fees for MVA 2 or to dispute Respondent's entitlement to apply Client's MVA 1 proceeds in his possession to pay his claimed fees for his work on MVA 2. The settlement funds that Respondent used to pay his fee for MVA 2 were funds that both he and the client claimed an interest. However, Respondent mistakenly believed he was already permitted to pay himself for his work on MVA 2 using those funds.

Respondent admits that, by paying himself a fee for his work on MVA 2 from Client's MVA 1 settlement proceeds without notice to Client, who had terminated representation on MVA 2 one month before Respondent disbursed payment to himself, Respondent failed to maintain in trust funds in which both he and Client claimed interests until the dispute is resolved, in violation of RPC 1.15-1(e). Sanction

stances.

1. Duty Violated. Respondent violated his duty to his client to preserve client
   property in his possession. ABA Standard 4.1. result. "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. "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. ABA Standards at 9. Respondent acted negligently in not ascertaining whether he had a fee agreement for MVA 2 that allowed him to pay himself an hourly fee from client funds in his possession, and that he should have invoiced Client for the MVA 2 fees before he paid himself from Client's fuds.

2. Injury. The ABA Standards take into account both actual and potential injury.
   ABA Standards at 6; In re Williams, 314 Or 530, 546, 840 P2d 1280 (1992). Client was actually injured by the lost opportunity to contest or negotiate Respondent's fee on MVA 2 before Respondent collected it from his funds.

3. A selfish motive. ABA Standard 9.22(b).

4. Absence of prior relevant discipline. ABA Standard 9.32(a).
   Under the ABA Standards, public reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. ABA Standard 4.13.

Public reprimand is in accord with Oregon cases involving violations of RPC 1.15- 1(e): In re Hubbard, 30 DB Rptr 378 (2016). Public reprimand for violations of RPC 1.15- 1(d) and RP 1.15-1(e). Attorney for mother collected more funds than owed under an attorney fee award from father's wages through garnishment, but paid the excess to mother, rather than remit it back to father. Attorney reasoned that father owed mother outstanding child support. Multiple mitigating factors outweighed aggravating factors. In re Petersen, 26 DB Rptr 186 (2012). Public reprimand for violation of RPC 1.15- 1(e). Attorney representing a contractor in a dispute over contractor's work accepted funds payable to his client under the condition that he would not pay over the funds until opposing counsel informed him that the contractor had satisfactorily completed a cabinetry project. Attorney paid over the funds to his client without first confirming that the work had been satisfactorily completed. The stipulation recited no injury, as the homeowners eventually accepted the cabinetry. Three mitigating factors outweighed aggravating factors.

Respondent shall be publicly reprimanded for violation of RPC 1.15-1(e), the sanction to be effective upon approval of this stipulation by the Disciplinary Board.

in BR 6.4, and that a failure to complete the requirement timely under that rule may result in his suspension.

Respondent represents that, in addition to Oregon, he is not admitted to practice law in any other jurisdictions, whether his current status is active, inactive, or suspended.

EXECUTED this 15th day of November, 2021. /s/ Brad Larson Brad Larson, OSB No. 913526 EXECUTED this 15th day of November, 2021.

In re: ) ) Complaint as to the Conduct of ) Case No. 19-107 ) SC S069005 WILLIAM CHIKA IGBOKWE, ) )

Disposition: Violation of RPC 1.16(c), RPC 1.16(d), RPC 3.3(a)(1), RPC 8.4(a)(2), and RPC 8.4(a)(3). Stipulation for Discipline. 10-month suspension. Effective Date of Order: December 4, 2021 ORDER ACCEPTING STIPULATION FOR DISCIPLINE Upon consideration by the court. The court accepts the Stipulation for Discipline. Respondent is suspended from the practice of law in the State of Oregon for a period of 10 months, effective 10 days from the date of this order. /s/ Martha L. Walters Martha L. Walters, Chief Justice Supreme Court 11/24/2021 9:50 AM William Chika Igbokwe, attorney at law (Respondent), and the Oregon State Bar (Bar)

Oregon on June 27, 2018, and has been a member of the Bar continuously since that time, having his office and place of business in Multnomah County, Oregon. 180

On December 17, 2019, a formal complaint was filed against Respondent pursuant to the authorization of the State Professional Responsibility Board (SPRB), alleging violation of RPC 1.16(c) [failure to comply with the applicable law requiring notice to or permission of a tribunal when terminating a representation]; RPC 1.16(d) [upon termination of representation, failure to take steps to the extent reasonably practicable to protect client's interests]; RPC 3.3(a)(1) [knowingly making a false statement of fact to a tribunal]; RPC 8.4(a)(2) [committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects]; and RPC 8.4(a)(3) [engaging in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer's fitness to practice law]. The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding. Facts

In March 2018, Respondent was hired as a staff attorney for Legal Aid Services of Oregon (LASO).

In July 2018, Laurie Giansante (Giansante) appeared pro se as the petitioner in a contested Family Abuse Prevention Act (FAPA) restraining order hearing (FAPA matter). Midway through the hearing, the court recessed the proceeding and continued the hearing to September 24, 2018.

Immediately after the July 9, 2018 hearing, Giansante contacted LASO for legal services. On July 19, 2018, Respondent was assigned to represent Giansante in the FAPA matter.

On September 24, 2018, Respondent appeared at the FAPA hearing with Giansante and requested that the court again setover the hearing to allow Respondent to review the evidence presented at the July 9, 2018 hearing. In support of his request, Respondent falsely represented to the court that he had only been retained by Giansante a week and a half prior to the September 24 hearing. Respondent knew this statement was false and material when he made it and did so with the intent that the court rely upon it to allow him his request for a setover. The court granted a two-day setover.

Respondent and Giansante appeared at the September 26, 2018 hearing. Giansante's alleged abuser (FAPA respondent) did not appear and the court upheld the restraining order.

Following the September 24, 2018 hearing, Respondent returned to the LASO office and falsely reported to his supervisor that the FAPA hearing had been contested. Respondent further falsely claimed that he had cross-examined the FAPA respondent, and made a closing argument. Respondent knew these statements were false and material when he made them and did so with the intent that this employer rely on his misrepresentations for his own personal benefit.

On October 4, 2018, at the request of the FAPA respondent, the court set a new hearing date of October 11, 2018, with notice to Respondent. On October 9, 2018, Respondent notified Giansante of the hearing and further advised her that he would not be appearing for her at the October 11, 2018 hearing, stating he no longer represented her in the FAPA matter.

Respondent did not file a motion to withdraw or otherwise notify the court of his withdrawal from the FAPA matter, as required by ORS 9.380 and UTCR 3.140. Respondent took no action to assist Giansante in finding other counsel, and did not appear at the October 11th hearing.

In a separate matter, Respondent emailed a demand letter in January 2019 to a business entity (visa processing company) demanding payment of money and damages. The demand related to a personal matter, unrelated to Respondent's work with LASO. The demand pur- ported to be from "Legal Aid Services of Oregon - Department of Justice Division," an entity that does not exist, and referenced the enforcement authority of the Oregon Department of Justice. Respondent assumed the identity of the Oregon Department of Justice with the intent to obtain a personal benefit in violation of ORS 162.365.

Respondent admits that, by failing to comply with the applicable law requiring notice to or permission of a tribunal when terminating a representation he violated RPC 1.16(c). Respondent admits that by failing upon termination to take steps to the extent reasonably practicable to protect his client's interests, he violated RPC 1.16(d). Respondent admits that by knowingly making false statements of fact to a tribunal, he violated RPC 3.3(a)(1). Respon- dent admits that by impersonating an agent of the Oregon Department of Justice, he committed a criminal act reflecting adversely on his honesty, trustworthiness, or fitness to practice in violation of RPC 8.4(a)(2). Respondent further admits that by making false statements to his 182

employer regarding the September 26, 2018 hearing, he engaged in conduct involving dis- honesty, fraud, deceit or misrepresentation that reflects adversely on his fitness to practice law in violation of RPC 8.4(a)(3). Sanction

stances. ABA Standard 3.0.

1. Duty Violated. Respondent violated his duty to refrain from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects and to refrain from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. ABA Standard 5.1. Respondent violated his duty owed to the legal system to not engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation to the court. ABA Standard 6.1. Respondent also violated his duty owed as professional to refrain from improperly withdrawing from representation. ABA Standard 7.0. result. "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. "Negligence" is the failure to be aware of a sub- stantial 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. ABA Standards at 9. Respondent's failure to properly withdraw from the FAPA matter was negli- gent; however, Respondent's failure to protect Giansante's interests was knowing when he notified her of the October 11, 2018 hearing date two days prior to the hearing date and told her he would not be appearing with her. Respondent knew or should have known that Giansante would likely be unable to obtain new representation. Respondent knowingly misstated to the court when he had been retained in the FAPA matter. He knew he had been assigned the FAPA matter in July 2018 and filed his Notice of Representation in August 2018. Respondent made these statements knowing they were misleading and intended the court to rely on them. Similarly, Respondent knowingly misrepresented his conduct at the September 26, 2018 hearing to his supervisor and colleagues at LASO with the intent to mislead them to believe a contested hearing took place where he cross- examined a witness and gave a closing argument.

Finally, Respondent knowingly represented to the visa processing company that he was associated with, and acting on behalf of, a fabricated entity, "Legal Aid Services of Oregon - Department of Justice", with the intent of appearing to have a greater authority to better threaten the company into complying with his demand for reimbursement and damages. Standard at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). The ABA Standards define "injury" as harm to a client, the legal system, or the profession which results from a lawyer's misconduct. "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably fore- seeable at the time of the lawyer's misconduct, and which, but for some misconduct. ABA Standards at 7. Respondent's failure to properly withdraw from the FAPA matter injured Giansante because she was a vulnerable person left without representation at the October 11, 2018 hearing against her alleged abuser. Respondent's inaction after asserting to Giansante that he no longer represented her left her interests unprotected, further creating a potential injury. Respondent's misrepresentations to the court injured the parties and the judicial system. The court relied on Respondent's misrepresentations in making its decision to continue the FAPA matter hearing. The setover required the parties to have to return to court two days later, potentially causing them to have to miss work or interfering with other commitments and delaying resolution in the matter, required the court to expend resources in the time it needed to hear Respondent's request, and to hold at least two subsequent hearings on the FAPA matter. Respondent's falsified demand letter caused injury to the visa processing company by asserting that the demand letter was sent by the DOJ, and acting in reliance on the DOJ's enforcement authority.

1. A dishonest or selfish motive. Respondent made intentional misrepre-
   sentations to the court, LASO and the visa processing company for this own personal benefit. ABA Standard 9.22(b).

2. A pattern of misconduct. Respondent's dishonesty was evident in three
   specific circumstances - in making false statements of fact to the court; in representations to his employer about what occurred at the September 26, 2018 hearing; and in his communications to the visa processing company wherein he represented himself as an agent for the DOJ. ABA Standard 9.22(b).

3. Vulnerability of victim. Giansante was a domestic violence survivor
   who qualified financially for legal services from LASO to represent her against her alleged abuser. ABA Standard 9.22(h).

4. Personal or emotional problems. Respondent lost both of his parents due
   to serious illnesses close in time to his conduct. ABA Standard 9.32(c).

5. Inexperience in the practice of law. Respondent had been practicing law
   for less than one year at the time of his conduct. ABA Standard 9.32(f).

6. Imposition of other penalties or sanctions. Respondent lost his job with
   LASO as a result of his conduct. ABA Standard 9.32(k).

7. Remorse. Respondent has expressed remorse for his conduct. ABA
   knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously reflects on the lawyer's fitness to practice law. ABA Standard 5.12. 1 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice. ABA Standard 5.13. Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. ABA Standard 6.12.

ABA Standard 5.11 includes the following elements: intentional interference with the 1administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; of the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses. 185

Respondent knowingly engaged in multiple misrepresentations to the court and his employer with the intent to deceive. The presumptive sanction is a suspension.

Oregon cases demonstrate that some term of suspension is warranted: In re James R. Kirchoff, 361 Or 712, 399 P3d 453 (2017) [2-year suspension] A lawyer knowingly falsified an email, which he then submitted to the court, in an attempt to convince the court to vacate a default judgment entered against his client. The lawyer knowingly misrepresented to the court that the purported email, which was never sent, had provided notice to opposing counsel of his intent to appear in a dissolution matter. In re Jackson, 347 Or 426, 223 P3d 387 (2009) [120-day suspension] While repre- senting a client in a dissolution of marriage proceeding, a lawyer falsely represented to the court that burglaries at his office were the reason he was unable to proceed with the case in a timely manner. In re Linda Wilson, 342 Or 243, 149 P3d 1200 (2006) [6-month suspension] A lawyer falsely represented to opposing counsel that the court had postponed the trial of a domestic relations case set for trial the following day, and then falsely represented to the court, both orally and in a subsequent affidavit, that opposing counsel had withdrawn her objection to the reset.

dent shall be suspended for 10 months for violation of RPC 1.16(c), RPC 1.16(d), RPC 3.3(a)(1), RPC 8.4(a)(2), and RPC 8.4(a)(3), the sanction to be effective ten (10) days after approval by the Supreme Court.

In addition, on or before January 3, 2022, Respondent shall pay to the Bar its reasonable and necessary costs in the amount of $337.30, incurred for attempted service of the Bar's formal complaint on Respondent, and Respondent's deposition in September 2020. Should Respondent fail to pay $337.30 in full by January 3, 2022, the Bar may thereafter, without further notice to him, obtain a judgment against Respondent for the unpaid balance, plus interest thereon at the legal rate to accrue from the date the judgment is signed until paid in full.

Respondent represents that he has no active client files, and no closed or inactive client files in his possession.

disposition of this proceeding. Other jurisdictions in which Respondent is admitted: New York.

October 17, 2020. Approval as to form by Disciplinary Counsel is evidenced below. The parties agree the stipulation is to be submitted to the Supreme Court for consideration pursuant to the terms of BR 3.6. /s/ William Chika Igbokwe William Chika Igbokwe, OSB No. 182334

In re: ) ) Complaint as to the Conduct of ) Case No. 20-54 ) WALTER J. LEDESMA, ) )

Susan T. Alterman Disposition: Violation of RPC 1.15-1(d) and RPC 1.16(d). Trial Panel Opinion. 30-day suspension. Effective Date of Opinion: December 25, 2021 The Oregon State Bar (Bar) charged Respondent Walter J. Ledesma with violation of RPC 1.15-1(d) and RPC 1.16(d) based on his failure to promptly return client property and to return unearned fees upon termination of representation. Respondent failed to file an answer to the formal complaint in this proceeding and is in default. The Bar asks us to find that the allegations in the formal complaint support the charges and issue a public reprimand. As dis- cussed below, we find that the charges are supported by the allegations in the formal complaint. We further find that the appropriate sanction in this case is a 30-day suspension. PROCEDURAL POSTURE The Bar filed a formal complaint and notice to answer on March 18, 2021. Respondent signed an acceptance of service on April 8, 2021. After service, Respondent did not file an answer. On May 4, 2021 the Bar served Respondent with a Notice of Intent to Take Default. On May 24, 2021, the Bar filed a Motion for Order of Default. The Adjudicator entered an Order of Default on May 27, 2021. When a respondent is in default, the Bar's factual allegations are deemed to be true. See BR 5.8(a); In re Magar, 337 Or 548, 551-53, 100 P3d 727 (2004). We then determine whether the facts pleaded establish the rule violations alleged and, if so, what sanction is appropriate. See, In re Koch, 345 Or 444, 455, 198 P3d 910 (2008). In assessing whether the charges are established we are limited to considering only the facts alleged in the formal complaint. When determining the appropriate sanction, we may consider additional evidence.

STATEMENT OF FACTS In July 2017, Clyde J. Green retained Respondent to represent him in a tort claim against an unknown actor who assaulted him. ¶3 On February 5, 2018, Respondent collected 1$400 from Green and deposited it into his trust account. Respondent told Green the $400 payment was for anticipated costs for conducting a pre-filing perpetuation deposition to ascertain the identity of Green's assailant. Respondent, however, never deposed anyone. ¶4. In June of 2019, Respondent withdrew from representing Green, 15 days before the statute of limitations expired on Green's claim. ¶5. Respondent told Green he was withdrawing due to health issues and because he was no longer practicing law. Id. At the time of his withdrawal, Respondent continued to hold Green's $400 in his trust account. Id. More than a year later, on September 2, 2020, after learning that Green had made a complaint to the Bar, Respondent returned Green's $400. ¶6. ANALYSIS We find that Respondent's conduct violated both RPC 1.15-1(d) and RPC 1.16(d). RPC 1.15-1(d) provides:

"Upon receiving funds or other property in which a client or third person has

an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property." At the time his representation ended, Respondent held Green's $400 in his trust account. Green was entitled to receive the funds as soon as Respondent withdrew as his attorney in 2019. Respondent's delay in refunding Green's $400 from June 2019 until September 2020 violated RPC 1.15-1(d). RPC 1.16(d) provides as well:

"Upon termination of representation, a lawyer shall take steps to the extent

reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, sur- rendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law." Respondent had a duty upon withdrawal to refund Green's advance $400 payment for the cost of a perpetuation deposition. Respondent had not incurred any expense. Respondent's inaction constituted a failure to take reasonably practicable steps to protect Green's interest upon termination of representation, in violation of RPC 1.16(d). All paragraph citations are to the formal complaint. 1 189

SANCTION We refer to the ABA Standards for Imposing Lawyer Sanctions (ABA Standards) and Oregon case law for guidance in determining the appropriate sanctions for lawyer misconduct.

make a preliminary determination of sanction, after which we may adjust the sanction based on the existence of recognized aggravating or mitigating circumstances. See In re Nisley, 365 Or 793, 815, 453 P3d 529 (2019). The most important ethical duties a lawyer owes are to his clients. ABA Standards at

1. Respondent violated his duty to his client to promptly return money belonging to his client. ABA Standard 4.1; see also In re Bertoni, 363 Or 614, 641-42, 426 P3d 64 (2018). Respondent also violated his duty as a professional by failing to return a client's funds upon termination. ABA Standard 7.0. The ABA Standards recognize three mental states: intent, knowledge, and negligence.

"Intent" is when a lawyer acts with 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. Id. "Negligence" is the failure to be aware of a substantial risk that circumstances exist or that a result will follow, which failure deviates from the standard Respondent's mental state here is a critical factor in determining the appropriate sanc- tion. The Bar argues that Respondent acted negligently when he failed to take the steps necessary to return his client's funds without considering how his conduct might have injured his client. The Bar further reported to us that Respondent had to go through the formal reinstatement process under BR 8.1 beginning in 2019 due to an earlier suspension. As part of that process he apparently provided supporting documentation regarding his health. We have reviewed some of these materials, which indicate that Respondent was suffering from serious illnesses at the time he withdrew from Green's matter. The Bar contends this is further evidence that Respondent acted negligently. We disagree with this analysis and find that Respondent here knew or should have known that his conduct was in violation of his duties as a lawyer. Unfortunately, due to Respondent's default, there is no testimony from Respondent as to his actual mental state at the time. We believe, however, that any lawyer who accepts funds from a client for a particular expense, never incurs that expense, and then withdraws from the engagement knows, or should know, that he or she owes the client a refund. Consequently, we conclude that Respondent's mental state was knowing.

For purposes of determining an appropriate disciplinary sanction, we may take into account both actual and potential injury. ABA Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). "Injury" is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. Respondent's conduct caused actual injury to Green by depriving him of the use of his money. Respondent's conduct could also have caused significant potential injury, particularly in light of his withdrawal a mere 15 days before the statute of limitations ran on his client's claim. Absent aggravating or mitigating circumstances, the following ABA Standards apply here, depending on the mental state of a respondent: Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. ABA Standard 4.12. Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client. ABA Standard 4.13.

Since we find that Respondent acted knowingly here, we find that suspension is the presumptive sanction. We find the following aggravating factors recognized under the ABA Standards present here:

1. A pattern of misconduct. ABA Standard 9.22(c). Respondent was previously
   disciplined for trust account violations, which the Bar argues is similar to the misconduct in this matter. See In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018) (". . . [A] pattern of misconduct . . . bears on whether the violation is a one-time mistake which may call for a lesser sanction, or part of a larger pattern, which may reflect a more serious ethical problem."). 2 In re Ledesma, 33 DB Rptr 47 (2019). The Bar advises us, however, that because the 2sanction in the 2019 matter did not precede the acts that led to this matter, this discipline does 191

2. Substantial experience in the practice of law. ABA Standard 9.22(i). Respon-
   dent was admitted to practice law in 1992. In mitigation, we find the following:

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

4. Personal or emotional problems. ABA Standard 9.32(c). Respondent was
   diagnosed and treated for depression during the period of his conduct at issue. Respondent has disclosed that he was hospitalized twice in 2020 for serious illnesses. 3

5. Character or reputation. Standard 9.32(g). As part of his reinstatement
   materials, Respondent's character references spoke very highly of him. The Bar also asked us to find remorse as a mitigating factor under Standard 9.32(1), telling us that Respondent has stated that he sincerely regrets his actions and admitted that his client deserved better from him. We decline to find this mitigating factor applies to this case. Respondent has expressed no remorse to this panel. Other than accepting service of the complaint, Respondent has consciously chosen not to engage in this case. We find that Respondent's refusal to answer the complaint or appear and explain himself in this proceeding is the antithesis of real remorse. We find that the aggravating and mitigating factors balance out and that no modifica- tion of the presumptive sanction is warranted. Our objective in assessing a sanction is not to penalize a respondent. Instead we are charged with protecting the public and the integrity of the profession. See In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998). Appropriate discipline deters unethical conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992). The Bar provided us with a number of cases supporting its argument that a public reprimand is appropriate here. The Bar's argument, however, was premised on a finding that Respondent was merely negligent. There are many cases imposing more severe discipline when the respondent's conduct was knowing. These cases often involve multiple rule viola- tions, making them difficult to match with the facts before us. We cannot find a case that looks exactly like this one. Under the circumstances, however, we believe a 30-day suspension is the appropriate sanction. Given that the Bar is seeking a public reprimand here, we are confident that Respondent could have entered into a stipulation for discipline with that as the agreed-upon sanction. Instead, for reasons unknown, Respondent declined to participate in this process. In our view, a lawyer who neglects his duties to his client, as Respondent did here, and then neglects to engage with the disciplinary process, should not escape with a mere public not qualify as a "prior disciplinary offense" under ABA Standard 9.22(a). In re Bertoni, 363 Or 614, 644, 426 P3d 64 (2018). This information was submitted in Respondent's formal reinstatement process, not in 3response to this proceeding. 192

reprimand. Such a result has no deterrent value whatsoever. Since deterring unethical conduct and protecting the public are our stated goals, we feel they will not be served without imposing at least the minimum suspension here. Accordingly, we order that Respondent is suspended for 30 days, beginning 30 days after this decision becomes final.

discharge their professional duties. ABA Standard 1.1. To fulfill this goal, we order that Respondent is suspended for 30 days effective 30 days after this decision becomes final. Respectfully submitted this 25th day of October 2021. /s/ Susan T. Alterman Susan T. Alterman, Trial Panel Member /s/ James E. Parker James E. Parker, Trial Panel Public Member

In re: ) ) Complaint as to the Conduct of ) Case No. 19-101 ) JOHN BASSETT, ) )

Counsel for the Respondent: Peter R. Jarvis and Trisha Thompson Kathleen Tastetter Eugene Bentley, Public Member Disposition: Violation of RPC 1.8(a). Trial Panel Opinion. Public Effective Date of Opinion: November 25, 2021 The Oregon State Bar (Bar) charged respondent John Bassett with violation of RPC 1.8(a). The rule requires that when a lawyer enters into a business transaction with a client: (1) the terms must be fair and reasonable to the client and fully disclosed in writing; (2) the client must be advised, and given the opportunity, to seek the advice of independent legal counsel; and (3) the client must give informed consent, in a writing signed by the client, to the essential terms of the transaction and whether the lawyer is representing the client in the transaction. Respondent was approached by an individual, Rick Barrett, whom he had known for years, had represented in the past, and had loaned money to on prior occasions. Barrett had defaulted on the mortgage payments for his house and sought legal advice on how to deal with the notice of default. Respondent himself paid the funds to cure the default. Respondent and Barrett discussed and eventually entered into an agreement whereby Respondent would fund renovation of Barrett's house, which would then be sold and the profits would be split between the two. The Bar argued that Respondent was Barrett's attorney when the deal was entered into and Respondent failed to comply with RPC 1.8(a). Respondent argued that he was not Barrett's attorney when the deal was entered into and so the rule did not apply. He further argued that, if the rule applied, the disclosures he did make to Barrett satisfied the rule's requirements. The case was tried over video conference on July 22, 23 and 25, 2021 before a trial panel consisting of the Adjudicator, Mark A. Turner, attorney member Kathleen Rastetter, and public member Eugene Bentley. The Bar appeared through counsel, Rebecca Salwin. Respon- dent appeared and was represented by attorneys Peter Jarvis and Trisha Thompson.

As discussed below, we find that the Bar proved the charge by clear and convincing evidence and that the appropriate sanction here is the one requested by the Bar, a public FACTS The trial of this case involved a lengthy presentation of the facts over a two-day period. Respondent attacked Barrett's version of events as well as his credibility. Barrett, in turn, was difficult and uncooperative. Much of the testimony was neither responsive nor relevant. At times it seemed as if Respondent was trying a breach of contract or fraud case against Barrett. The issues before this trial panel, however, were much narrower and, in the end, much simpler than the transcript of the trial might suggest. Respondent had known Barrett for over 40 years when the events at issue here occurred. Barrett was a drywall installer. Respondent had represented him in some legal matters in the past, never charging Barrett for the work he performed. Respondent had also loaned Barrett money in the past, interest-free, some of which Barrett had repaid, some of which was still outstanding debt in May of 2018. Respondent loaned Barrett $8,000 in December of 2009, which was repaid. Ex. 126. He also loaned him $1,000 in December of 2016, $7,000 in May of 2017, $3,000 in February of 2018, and $5,000 in March of 2018, all of which amounts remained outstanding. Id. Barrett received a notice of default on his home mortgage dated May 2, 2018. He met with Respondent on May 15, 2018, and Respondent and Barrett discussed potential legal and equitable defenses to a foreclosure action. None of them seemed like viable options. Respon- dent offered to pay what was due on behalf of Barrett to cure the default, again interest-free. Barrett accepted the offer. Respondent agrees he was acting as Barrett's lawyer when they met on May 15 and during his subsequent interactions with the mortgage servicing company. On May 23, 2018, Respondent wrote the mortgage company, stating "I represent Rick Barrett with respect to the issues presented in the letter sent to him by Selene Financial." Ex. 2. On June 6, 2018, Respondent paid the amount due on Barrett's mortgage, $11,106.96. In conversations beginning in late May the arrangement grew from merely curing the default. Tr. at 58. Respondent had successfully renovated and sold two houses at a profit in the recent past, and Barrett had done some work on those projects. The two discussed and eventually agreed that Respondent would pay to renovate Barrett's home with the intent to then sell it. The net proceeds, after paying off the mortgage (approximately $365,000), deducting the cost of renovation, and paying off Respondent's loans to Barrett, would be split evenly between Barrett and Respondent. Tr. at 100-101 and at 355. Respondent estimated the sale price would be "more than a million dollars." Tr. at 99-100. Although the parties agreed on the concept, the details remained to be negotiated and reduced to writing. Beginning in June, Respondent drafted various versions of a letter to memorialize the parties' evolving agreement. Prior to drafting the letters, Respondent called the ethics help line at the Oregon State Bar to consult about his obligations. He spoke with Assistant General Counsel Mark Johnson-Roberts, who advised him regarding the requirements of RPC 1.8(a). Respondent included references to the Rules of Professional Conduct in each of the drafts. The first draft was dated June 7, 2018. Ex. 3. There Respondent described the situation as involving "the issues presented in the May 2, 2018 letter you received from Selene 195

Financial. . . ." The letter included the following language regarding the Rules of Professional Conduct:

"The Oregon State Bar Rules of Professional Conduct require that an attorney

who represents you in a legal matter which attorney might enter into a business relationship with you must write a letter to you and present full disclosure. That full disclosure provides that your attorney cannot enter into a business relation- ship with you unless the business relationship is fair and reasonable to the client and the terms are fully disclosed and transmitted in writing in a manner that can reasonably be understood by the client.

"The client must also be advised in writing of the desirability of seeking and is

given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.

"Then, if you give informed consent to me in writing to the essential terms of

the transaction and the attorney's role in the transaction including whether I am representing you with respect to the issues presented in the May 2, 2018 letter you received from Selene Finance, then we can proceed." Id. The next day he prepared another draft that for the first time recited terms of an agreement for renovating and selling the house, stating: "The thought is to renovate the house forthwith with the goal of completing the renovation by the end of the first week of August, 2018." Ex. 4. The letter included 15 numbered deal points. It also included a signature block for Barrett to acknowledge his agreement. The language in the second draft letter regarding the conflict issue changed slightly. Respondent now wrote:

"The Oregon State Bar Rules of Professional Conduct require that an attorney who represents an individual in a legal matter which attorney might enter into a business relationship with the client must write a letter to the client and present full disclosure. That full disclosure provides that your attorney cannot enter into a business relationship with the client unless the business relationship is fair and reasonable to the client and the terms are fully disclosed and transmitted in writing in a manner that can reasonably be understood by the client. The client must also be advised in writing of the desirability of seeking other counsel and the client was given a reasonable opportunity to seek the advice of independent legal counsel on the transaction." Ex. 4 (emphasis added.) Respondent replaced the word "you" in the first paragraph, first with "an individual," and then three times with "the client." In the second paragraph Respondent added the words "other counsel and the client was" in place of the word "is" preceding the language "given a rea- sonable opportunity to seek the advice of independent legal counsel on the transaction." The third paragraph of the disclosures in Exhibit 3, discussing informed consent in writing, is omitted from Exhibit 4. The parties had agreed that Barrett would continue to occupy the home during the work. However, a tenant occupied the lower level of the house at the time and the project required that the tenant move out. The tenant did occasional work for Barrett in lieu of rent, although 196

Barrett did not have records that actually documented how much rent the tenant had paid through his labor. The Respondent and Barrett agreed that the tenant needed to vacate the premises, and deal point number 13 in the June 8 letter stated that, "The tenant shall vacate the residence no later than June 11, 2018. Should the tenant fail to do so eviction proceedings shall be filed after proper notice." Ex. 4. Respondent prepared another draft dated June 11, 2018, that reduced the numbered deal points to six. Ex. 5. The draft made no mention of the tenant, although the tenant had not vacated the premises at the time. The disclosure language reverted back to the version in the first draft, Exhibit 3, as far as the use of "you" and "the client." It returned the paragraph discussing informed consent, adding to the sentence in exhibit 3 after "then we can proceed," the phrase "with respect to the issues presented in the May 2, 2018 letter you received from Selene Finance." Id. By the time this draft was prepared Respondent had already paid the amount due on Barrett's behalf. On June 14, 2018, Respondent emailed Barrett with an attached draft dated the same day asking Barrett, "Why the delay." Ex. 6. The email advises Barrett that, "if you have questions about the letter let me know or take it up with your attorney." Id. The disclosure and consent discussion remained the same. The June 14 draft contained 12 numbered deal points, and additional discussion not present in the earlier versions. Ex. 7. This draft acknowledges in point one that completion of the renovation by the first week of August is not realistic. It states in point nine that the tenant shall vacate the premises no later than June 13, with a parenthetical note: "Rick: a while ago the guy was going to be out the next weekend, then it was Wednesday, now it is tomorrow?" Up to this point, the letters had stated that the costs of renovation would be deducted from the sale proceeds and "the balance of the net proceeds would be divided on a 50-50 basis after all costs and advances are reimbursed to John Bassett." The June 14 letter changes that language to state that "the balance of the net proceeds would be divided on a 50-50 basis after all costs, loans and advances are reimbursed to John Bassett." Ex. 7, point six (emphasis added). This is the first mention of loans in the draft letter agreements. The June 14 letter also for the first time includes a requirement that Barrett execute a warranty deed to Respondent, stating: "The deed shall be recorded upon the completion of the renovation and upon the sale of the residence." Id at point 12. Respondent also includes statements to Barrett that the renovation is going to be far in excess of what Respondent had originally thought. Even though a written agreement had not been executed, Respondent hired two men to begin demolition of the house on June 15, 2018. Barrett objected to the men who appeared and had discussions with Respondent about replacing them. The parties still had not finalized their arrangement on June 19, 2018, when Respondent sent Barrett an email expressing his concern about Barrett keeping his end of the bargain. Ex. 10. The email also expresses larger concerns about how Barrett is living his life, and asks him if he gambled away prior monies loaned by Respondent. Respondent sent Barrett another email on June 21, 2018, primarily addressing the situation with the tenant, who had not moved out. Ex. 10A. Respondent reminded Barrett that he had advised him that a landlord has to give a 30-day notice to evict a tenant who was renting on a month-to-month basis. Respondent described a phone call with Barrett in which he told 197

Barrett he needed to have documentation to show the work the tenant had performed in lieu of rent, and advised Barrett not to write up "phony documentation" to support his position. He recited additional issues that would be relevant to an eviction proceeding, and concludes the first paragraph by stating: "But I need all the facts in order to address what needs to be done." Id. This email also raises larger concerns about Barrett's lifestyle choices, urging Barrett to "start to exercise discipline in your life. Bookkeeping, no drinking, no gambling. Otherwise life is going to continue to be troubling." Id. During this time, Barrett raised the possibility of moving away from the metro area and starting over. He discussed moving to the coast or to central Oregon and starting a new drywall business. In connection with these discussions, Respondent loaned additional sums to Barrett, $2,000 on July 5, 2018 and $17,000 on July 9, 2018. Ex. 126. The final draft of the letter agreement is dated July 9, 2018, and was signed by Barrett that day as well. Ex. 12. This version of the letter agreement has returned the description of the split of the proceeds to "a 50-50 basis after all costs and advances are reimbursed to John Bassett," removing the terms "loans." Respondent testified that he did not know how or why that change was made. Tr. --. The letter still states that the tenant shall vacate the premises no 1later than June 13, 2018, even though the agreement was dated July 9, 2018. It includes the warranty deed requirement as well. The disclosure and consent language remained the same as it had been since the June 11 draft, Exhibit 5. The letters never refer to Barrett as a "former client," or indicate that the attorney-client relationship had terminated. The agreement provided that Respondent would record the warranty deed only upon completion of the renovation and sale of the property. The Bar presented expert testimony that the use of a warranty deed here was "highly abnormal." Tr. at 153. The stated purpose of the deed requirement was to provide Respondent with security for his investment and his loans. Tr. at 102. According to the Bar's expert, Shannon Calt, an attorney who specialized in representing lenders in judicial and non-judicial foreclosures, standard practice would have been to have Barrett execute a trust deed. With a trust deed the borrower has a third-party fiduciary holding the power to foreclose, and has certain statutory protections regarding notice, timing, and the requirement of a public sale of the property. Tr. at 136-141. By signing a warranty deed instead, Barrett actually transferred title of the property to Respondent. He essentially forfeited any equity he had in the property. Tr. at 158-159. Barrett apparently changed his mind about starting over in a new location and remained in the house. Respondent learned in September that Barrett had not made the July and August mortgage payments despite the fact that Respondent had loaned him $19,000 in the month of July. Respondent was troubled by this development. Respondent used a home office, but had a legal secretary who kept a business office. 1

Respondent instructed Barrett to go to the secretary's office on July 9, 2018, where he signed the letter agreement and the warranty deed. Respondent did not attend the signing session. There was no suggestion that any changes to the letter agreement could have been made by Barrett. 198

As to the mortgage payments, the agreement stated that Respondent could make the payments if Barrett did not. The agreement did not provide that Respondent could record the warranty deed if Barrett failed to make a mortgage payment. The agreement only allowed the deed to be recorded upon completion of the renovations and sale of the property. Despite this, Respondent recorded the deed on September 4, 2018. Respondent testified that Barrett had orally agreed that the deed could be recorded if a mortgage payment was missed. Tr. at 104. That term was never reduced to writing. Moreover, Barrett testified that he did not understand what a warranty deed was (Tr. at 221-22) and would not have signed it if he had known he was "signing my house away." Tr. at 216. The parties continued to exchange emails, documenting the continuing deterioration of their relationship. Exs. 18, 19. 21, 22, and 23. Respondent made it clear that he had recorded the deed to protect his position, and he told Barrett that if Barrett did not cooperate Respondent would "proceed accordingly." Ex.18. On September 15, 2018, Respondent told Barrett that he would have to vacate the property if he did not comply with the terms of their contract within ten days. Ex. 21. Barrett sought the advice of other counsel on how to proceed while he and Respondent were exchanging emails. Ex. 20 (September 14, 2018 email from Barrett to Stephen English). Barrett sent Respondent an email on September 17 that stated, "John, Your [sic] my lawyer, what advice do you have for me? Rick." Ex. 22. Respondent described the email as

"Machiavellian" at trial, contending that it was sent at the suggestion of the lawyer Barrett

conferred with to entrap Respondent into an admission that he was Barrett's lawyer. Respondent answered, with only a part of his reply available as an exhibit. In relevant part, Respondent told Barrett, "If you need legal advice then you should consult another attorney. I have not represented you since the Oregon State Bar letter was received by you and you signed it." Id. The "Oregon State Bar letter" was what Respondent called the letter agreement between the parties that was signed by Barrett on July 9. Barrett complained to Respondent by email on October 7, 2018 about a number of matters, including his claim that Respondent had breached their agreement by recording the deed. Ex. 24. Barrett made a complaint to the Client Assistance Office (CAO) of the Bar in November of 2018. Exs. 27, 28. Respondent initially replied to Barrett's allegations on his own behalf. Exs. 29, 30. Respondent stated that he and Barrett had orally agreed on all material terms of their agreement and that Respondent drafted the letter agreement to comply with the applicable rule. He admitted to CAO that he was required to comply with RPC 1.8(a) and argued that the July 9, 2018 letter satisfied the rule. Ex. 30. The case was transferred to Disciplinary Counsel's Office (DCO). Respondent engaged attorney Ward Greene to represent him. Greene wrote to DCO in January of 2019, again operating on the premise that RPC 1.8(a) applied and arguing that Respondent had complied with it. Ex. 31. Greene, though, did arrange for his client to deed the property back to Barrett via a Bargain and Sale Deed. Id. By the time of trial, represented by different counsel, Respondent contended that the only attorney-client relationship between himself and Barrett involved the limited task of curing the May 2018 default. Respondent argued that when he paid Selene Financial the past- due amount in early June the attorney-client relationship ended and the agreement with Barrett

regarding renovation and sale of the house did not fall under RPC 1.8(a) because Barrett was no longer a current client. ANALYSIS OF THE CHARGE RPC 1.8(a) states:

"A lawyer shall not enter into a business transaction with a client or knowingly

acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction."

1. We Find Barrett Was Respondent's Client at the Time of the Transaction.
   The threshold question we must answer is whether Barrett was Respondent's client when they entered into a business transaction. A lawyer-client relationship exists when the client subjectively believes that that the lawyer was representing him, and that belief was objectively reasonable under the circumstances. In re Weidner, 310 Or 757, 770, 801 P2d 828 (1990). A client's reasonable belief can be shown by "objective facts on which a reasonable person would rely as supporting existence of that intent" or "by evidence that the lawyer acted in a way that would induce a reasonable person in the client's position to rely on the lawyer's professional advice." Id; see also In re Wittermyer, 328 Or 448, 456, 980 P2d 148, 153-54 (1999). Respondent does not dispute that Barrett was his client when he was engaged to deal with the mortgage default. He contends, however, that he ceased to be Barrett's lawyer once the payment to the mortgagor was made. This contention, however, is belied by clear and convincing evidence in the record. There is little doubt that Barrett subjectively believed he was Respondent's client during the negotiation of the business transaction involving the house. Barrett believed Respondent was his attorney when he first received a draft of the letter agreement. Tr. at 199. He thought Respondent was his lawyer when he received Exhibit 10A, discussed below. Tr. at

2. He thought Respondent was his lawyer when he signed the letter agreement on July 9,

3. Tr. at 215.
   When Barrett emailed Respondent on August 31, 2018, he stated, "I asked you for help as well as [to] represent me around the 1st of June, and you did, in return you have put me through absolute hell on earth." Ex. 15. He stated to counsel he consulted in September of 2018, explaining why he signed the letter agreement, "I did not fully understand, but I trusted

[Respondent] . . . [he] indicates in the letter/contract that he represents me." Ex. 20. Respon- dent argued that Barrett's acknowledged lack of trust in Respondent as the relationship deteriorated undercut his claim that he thought Respondent was his lawyer, but Barrett never wavered in his belief that Respondent was his lawyer even when the two were at odds. This subjective belief is supported by ample objective facts that make the belief reasonable. First, in the letter agreements beginning June 7, 2018, Respondent addressed his comments in the disclosures to Barrett as if he was a client, i.e., "you," or "the client." He refers to himself always as the attorney to "you" or "the client." This continued through the final, July 9, version of the agreement that was signed by Barrett. Barrett testified that he understood Respondent's references to "attorney" and "client" in the letter agreement referred to the two of them. Tr. at 200; Ex. 45 (Barrett Depo. Tr.) at 184-186. Respondent claimed at trial that the references in the letter agreement were "not referring to me or Mr. Barrett." Tr. at 95-96. Respondent's reasoning on the issue was tortured and unpersuasive. In our view, this language is only included because Respondent knew he was acting as Barrett's lawyer while they were negotiating the terms of their business transaction. Respondent testified that he only included the disclosures in his letters "out of an abundance of caution," after speaking with the assistant general counsel of the Bar on the ethics help line. Tr. at 75. This justification rings hollow in light of the facts surrounding the parties' relationship. Respondent's June 21, 2018 email to Barrett, Exhibit 10A, is perhaps dispositive evidence that the parties continued an attorney-client relationship even after Respondent cured the mortgage default. Respondent addressed the situation involving the tenant in the house, advising Barrett that he needed proper documentation, that he should not create documents after the fact to account for the labor-for-rent arrangement, and specifically told Barrett, "But I need all the facts in order to address what needs to be done." Ex. 10A. Barrett understood Respondent to be acting as his lawyer at the time. Tr. at 209-210. He said of the email, "he's telling me what needs to happen in order for the guy to be removed legally." Tr. at 210. That is legal advice. The Bar correctly points out that Respondent never advised Barrett, either orally or in writing, that he was no longer acting as an attorney in their relationship. Moreover, Respondent emailed a reply to Barrett on September 17, 2018 that stated that he was acting as Barrett's attorney until "the Oregon State Bar letter was received by you and you signed it." This is objective evidence that the parties had an attorney-client relationship at least through July 9, 2018, the day the transaction was documented by Barrett's signing. Ex. 22. Whether the attorney-client relationship continued after that date is not relevant here. Respondent's admis- sion brings RPC 1.8(a) into play. Respondent also admitted in his communications with the Bar during its investigation that the rule applied. He wrote to the CAO on December 13, 2018, describing the letter agreement with Barrett as "required by the Oregon State Bar with respect to an attorney getting involved with a client with respect to a business matter and the need for Mr. Barrett to contact separate counsel." Ex. 30. Respondent acknowledged the same through his former counsel,

Greene, who wrote on January 29, 2019 that, ". . . we recognize that Mr. Bassett had an obliga- tion to document the agreement. His letter to Mr. Barrett of July 9, 2018 attempted to do that, but was deficient in one respect." Ex. 31. Respondent's argument that he completed the legal portion of his relationship with Barrett when he wrote the check to the mortgage company narrows the attorney-client relationship in a way inconsistent with the Oregon Supreme Court's view of the subject. The court has found that the attorney-client relationship does not abruptly end the moment legal services are performed. The court has stated, "[T]he relationship between lawyer and client is one of trust and confidence, and does not abruptly start and stop -- at least not necessarily -- with the opening and closing of case matters." In re Schenck, 345 Or 350, 362, 194 P3d 804, 812 (2008) (citing In re Drake, 292 Or 704, 713, 642 P2d 296 (1982)). In Drake, the attorney argued that he had concluded his legal engagement with his client in May 1976 when a litigation matter was resolved. Drake then obtained a loan from his client in June. He then undertook to represent the client in a divorce proceeding in August. Drake, 292 Or at 709-11. The attorney claimed that he was not representing his client when the loan was made because the most recent legal issues had been resolved and there were no open legal matters. The court, however, found there was a current attorney-client relationship. The court analyzed the former disciplinary rule governing business relations with clients. The purpose of the rule is to prevent attorneys from abusing the trust and confidence they have gained from their client relationships. Id at 713. It is no different under the current Rules of Professional Conduct. On the subject, the Drake court quoted approvingly from the Disciplinary Review Board's decision:

"'If Accused's contention is to be accepted, then the simple termination of a

case creates an opportunity or period in which an attorney is freed from the rules governing attorney-client relationships. During this period the attorney would be free to use the rapport and confidence he had developed with his former client to persuade the former client to do things that would otherwise be prohibited by the disciplinary rules governing client relationships. After these actions were completed, the attorney could then freely enter into a new relation- ship with the former client. The only important thing would be that the paper- work showing opening and closing dates of cases be kept in order. The attorney would point to these as proof the aggrieved party was not a client during the period in question.' (citation omitted)." Id. The court took the same view in Schenck, supra. In Schenck, a client contacted her attorney for help drafting a will. He delivered it on April 8, 2003. The client had no open legal matters with him again until she consulted with him on May 16, 2003. Schenck, 345 Or at 363. In the interim, the attorney renegotiated a debt he owed his client. The court reaffirmed Drake, finding "under this court's reasoning in Drake, however, that break in his legal activities on Stephanie's behalf did not create a period in which the accused was free from the rules governing attorney-client relationships. We therefore conclude that Stephanie was a client of the accused when the May 16, 2003, note was executed." Id (again analyzing former discipli- nary rules).

We conclude, as Respondent's letter agreement itself states, that Barrett was a current client. We now address whether Respondent complied with RPC 1.8(a)'s requirements in his 2written disclosures.

1. We Find Respondent's Letter Did Not Meet RPC 1.8(a)'s Requirements. As noted above, RPC 1.8(a) requires that when a lawyer enters into a business transac- tion with a client: (1) the terms must be fair and reasonable to the client and fully disclosed in writing; (2) the client must be advised, and given the opportunity, to seek the advice of independent legal counsel; and (3) the client must give informed consent, in a writing signed by the client, to the essential terms of the transaction and whether the lawyer is representing the client in the transaction. Respondent's letter agreement does not adequately comply with the first and third requirements. The terms of the transaction are not "fair and reasonable to the client" and are not "fully disclosed . . . in writing." In particular, the requirement of a warranty deed rather than a trust deed was not fair and reasonable to Barrett. By signing the warranty deed Barrett left himself at Respondent's mercy. Rather than giving Respondent security in the event of a breach of their agreement, Barrett conveyed title to the property to Respondent. He thus lost all protections available to him if the parties had followed standard practice and used a trust deed. The "highly abnormal" structure was unfair to the borrower/client, Barrett. Respondent testified that the use of the warranty deed was a mistake and he did not use it to try to gain an unfair advantage. The rule, however, requires no intent on the part of Respondent. If this term of the transaction was objectively unfair it violates the rule. 3 The terms of the transaction were also not fully disclosed in writing. The letter only allowed Respondent to record the deed in limited circumstances when the renovations were The Bar cited us to a number of cases in which other states have applied their equivalent 2of RPC 1.8(a) to former clients. See, e.g., Iowa Disciplinary Bd. v. Pederson, 887 NW2d 387

(Iowa 2016) (finding that "the rule of professional conduct governing business transactions with clients can extend to transactions with former clients," which the court found to be "consistent with the approach taken in other states, even in the absence of an express prohibition in the Rules"); Matter of Ioannou, 89 AD3d 245, 250, 932 NYS2d 52, 56-57 (App

Div 2011) (holding that the business transaction rule may apply a former client if the former client reasonably relies on the lawyer to protect his interests in the transaction); Hunniecutt v. California State Bar, 748 P2d 1161, 1161 (Cal 1988) (finding "if there is evidence that the client placed his trust in the attorney because of the representation, an attorney-client relation- ship exists for the purposes of [the business-transaction rule] even if the representation has otherwise ended"); In re McGlothlan, 99 Wn2d 515, 522 (Wn 1983) (finding that the rule governing business transactions with clients applies as long as the influence arising from an attorney-client relationship continues). We do not need to address that question since we find that Barrett was a current client of Respondent. Respondent's counsel argued at trial that this situation could have been cured by a court 3on the grounds of mutual mistake of the parties since they both would have agreed to the use of a trust deed. The argument does not change the fact that the agreement, on its face, is unfair. A post hoc rewriting of the unfair term does not put the transaction in compliance with the rule. 203

completed and the house was sold, not if a mortgage payment was missed. Respondent's only written recourse if Barrett failed to make a mortgage payment was to make the payment himself. But Respondent intended to, and did, use the warranty deed to protect his interest while the work was in progress in response to a missed mortgage payment. If we accept Respondent's testimony that he and Barrett orally agreed that he could record the deed in the event of a missed payment, that is itself an admission that the terms of the transaction were not fully disclosed in writing. Alternatively, if there was no oral agreement to this term of the transaction, the letter did not fully disclose Respondent's intent as to the deed and again fails to meet the rule's full disclosure requirements. We find this failure to convey the actual purpose of the deed in writing also runs afoul of RPC 1.8(a)(3)'s requirement that the client give consent in writing to the "essential terms" of the deal. The rule does not define what an "essential term" is, nor does the commentary to the ABA Model Rule give us guidance. From our standpoint, the deed requirement certainly appears to be an essential term of the agreement, in particular given Respondent's insistence that he be given security for his investments. The requirement was apparently not subject to any negotiation. Tr. at 220. Respondent argued that the warranty deed was not an essential term of the agreement, and testified this was so because he would have entered into the deal even if Barrett had rejected the requirement. Respondent's testimony on the need for protection of his investment and the speed with which he resorted to recordation of the deed undercut the credibility of such a statement. Tr. at 102. Further, Respondent's deposition testimony regarding the deed was referenced at trial. His testimony on the matter was first that, "It's [the ability to record the deed if a mortgage payment was missed] not an essential - it is an essential term of the agreement. It's not an essential term of the letter." Tr. at 128. He then later admitted that "It is an essential term. It's just not in writing." Tr. at 129. We agree with this last statement--it is an essential term and it is not in writing. That establishes a violation of the rule. The letter also completely misses the requirement in RPC 1.8(a)(3) that the client give informed consent in a writing signed by the client as to "the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction." Respondent's letters refer to "whether I am representing you with respect to the issues presented in the May 2, 2018 letter you received from Selene Finance. . . ." Ex. 12. No one disputes that Respondent represented Barrett regarding the issues presented in the May 2, 2018 letter. What Respondent failed to do is to tell Barrett whether he was representing Barrett in "the transaction." The transaction is the business deal itself, and the letter is silent as to this required disclosure. This omission is not a mere formality. The rule is designed to warn clients of the dangers they face entering into business transactions with their lawyers. A reminder that the lawyer is not representing the client in the transaction itself helps fulfill that purpose. The ABA commentary to the model rule points out, "The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself. . . ." Perhaps if this had been 4made clear Barrett would have heeded the disclosure to seek the advice of independent legal The Oregon Supreme Court considers the commentary to the American Bar 4

Association's Model Rule 1.8(a) persuasive authority since the Model Rule is identical to RPC 1.8(a). In re Spencer, 355 Or 679, 685, 330 P3d 538 (2014). 204

counsel on the transaction that Respondent properly included in the letter and this case would never have arisen. But that was not the case. Accordingly, we find that the Bar proved by clear and convincing evidence that Respondent violated RPC 1.8(a). A Note on the Evidence and Due Process. Respondent filed a motion in limine to exclude Barrett's testimony and exhibits containing Barrett's statements to the Bar on the grounds that he had failed to comply with subpoenas duces tecum to produce documents at his deposition and at trial, and that he had refused to answer questions from Respondent's counsel at his deposition. That motion was denied by the Adjudicator, first, on the grounds that Respondent had the opportunity to seek enforcement of the deposition subpoena as to documents and testimony in the appropriate circuit court prior to trial but did not do so. Second, the Adjudicator found that Respondent had an adequate opportunity to cross-examine and challenge Barrett's testimony at trial such that Respondent was not denied due process. Barrett's refusal to answer certain questions at trial involved matters that were of limited relevance (mainly pertaining to Barrett's financial disclosures to Selene Financial) and, even if answered, would have carried little weight with the trial panel as to the material issues in the case. Barrett was not a particularly credible witness in many instances, but his testimony before the panel on those material issues was corroborated by the written record or by Respondent's own testimony. SANCTION

ABA Standards

make a preliminary determination of the presumptive sanction, after which we may adjust the sanction based on recognized aggravating or mitigating circumstances. ABA Standard 3.0. Duty Violated Respondent violated the duties he owed to his client to avoid conflicts of interest. ABA Standard 4.3. Mental State 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. Id. "Negligence" is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard Respondent acted negligently when he attempted to draft a business transaction letter that omitted material terms and disclosures.

Extent of Actual or Potential Injury For purposes of determining an appropriate sanction, we may take into account both actual and potential injury. ABA Standards at 6; In re Williams, 314 Or 530, 840 P2d 1280 (1992). "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Respondent caused Barrett actual injury. Barrett was at a disadvantage when he executed the warranty deed and was injured when Respondent took his property by recording the deed. Respondent caused potential injury because the inadequate disclosures in the July 9 letter prevented Barrett from having a reasonable opportunity to understand the full nature of their agreement or have it reviewed and explained by independent counsel. See Spencer, 355 Or at 698 (failing to obtain written consent from client under Rule 1.8(a) potentially injured the client because "she was denied the opportunity to consider the extent to which the business transaction might place the accused in an advantageous position or permit him to engage in overreaching, or to consult independent counsel in that regard."). Preliminary Sanction We agree with the Bar that this case falls under ABA Standard 4.33, which provides that, "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 adversely affect another client, and causes injury or potential injury to a client." Aggravating and Mitigating Circumstances

1. Prior disciplinary offenses. ABA Standard 9.22(a). Respondent has a prior
   reprimand from 2002 for multiple offenses, including advancing financial assistance to a client and engaging in dishonest conduct by omitting material information. Ex. 41 (In Re John Bassett, 16 DB Rptr 129 (2002)).

2. A dishonest or selfish motive. ABA Standard 9.22(b). Respondent's motivation
   here was his own profit.

3. Vulnerability of victim. ABA Standard 9.22(h). Barrett was arguably a vul-
   nerable victim given his financial insecurity and the threat of eviction posed by the use of the warranty deed.

4. Substantial experience in the practice of law. ABA Standard 9.22(i). Respon-
   dent has been a member of the Oregon State Bar since 1965. The Bar also asked us to find that Respondent refused to acknowledge the wrongful nature of his conduct (Standard 9.22(g)) because he "continues to assert that the Rules of Professional Conduct do not apply to him in this matter." We disagree that Respondent here asserts the rules do not apply to him. Instead he argues that the rule does not apply to the transaction because it applies only to current clients. A respondent is entitled to vigorously

defend against charges. We do not find that Respondent's defense constitutes an aggravating factor. Although some aggravating factors are present here, we do not believe they justify an enhancement of the presumptive sanction of a public reprimand. Oregon Case Law Oregon case law justifies imposition of a public reprimand. The Bar cited numerous cases in which violations of RPC 1.8(a) resulted in a public reprimand. See, e.g., In re Spencer, 355 Or at 702 (court noted that a public reprimand might be appropriate for a single violation of RPC 1.8(a), although prior violations and injury to client led to imposition of a 30-day suspension); In re Montgomery, 292 Or 796, 643 P2d 338 (1982) (court imposed a public reprimand on an attorney who obtained an unenforceable loan from a client); see also, e.g., In re Robert C. Williamson, 31 DB Rptr 173 (2017) (stipulated reprimand when attorney and client agreed to barter construction work for legal services, but the attorney did not ensure the transaction and terms were fair and reasonable, and he did not obtain informed written consent); In re Alan G. Seligson, 27 DB Rptr 314 (2013) (attorney reprimanded by trial panel where attorney prepared a trust deed for his bankruptcy client's signature in favor of specified parties, including attorney, to secure his fees, but without obtaining his client's informed written consent); In re Edward L. Daniels, 22 DB Rptr 72 (2008) (stipulated reprimand under former DR 5-104(A) where attorney purchased multiple pieces of real property jointly with a client, but failed to explain to the client the nature and extent of his adverse interests in those transactions). The Bar Rules of Procedure require us to impose at least a public reprimand if we do not dismiss the charge. There is no lesser sanction available to a trial panel. Accordingly, we order that Respondent be publicly reprimanded for violation of RPC 1.8(a).

discharge their professional duties. ABA Standard 1.1. Since we have found the charged rule violation, we conclude that this purpose is accomplished here by the imposition of a public Respectfully submitted this 25th day of October 2021. /s/ Kathleen Rastetter Kathleen Rastetter, Attorney Panel Member /s/ Eugene Bentley Eugene Bentley, Public Panel Member

Cite as In re Ard, 35 DB Rptr 208 (2021) Cite full opinion as 369 Or 180 (2021)

In re: ) ) ) MARLIN D. ARD, ) ) (OSB 19-93; SC S068497) En Banc Argued and submitted November 3, 2021. Marlin D. Ard, Sisters, argued the cause and filed the brief pro se. Rebecca M. Salwin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed

Respondent is suspended from the practice of law for one year, effective 60 days from the date of this decision. In this lawyer disciplinary proceeding, the Oregon State Bar alleged that respondent engaged in a single violation of Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits conduct prejudicial to the administration of justice, by making false certifications in a court filing, initiating unwarranted proceedings, and acting improperly in other respects during litigation. A trial panel of the Disciplinary Board agreed with the Bar and imposed a one-year suspension. In seeking review under ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1, respondent asserts that the Bar's complaint was deficient and should be dismissed and that, in any event, the Bar did not prove the alleged violation. We conclude that the Bar sufficiently alleged a violation of RPC 8.4(a)(4), that respondent violated that rule of professional conduct, and that a one-year suspension is the appropriate sanction.