In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) filed a complaint against lawyer John Bour-cier (the accused) on October 19, 1994. 1 The accused was personally served with a copy of the Formal Complaint and Notice to Answer on November 23, 1994. On February 17, 1995, the Bar filed and served on the accused an amended complaint, alleging five disciplinary rule violations arising оut of the accused’s representation of a single client: DR 6-101(B) (neglecting a legal matter entrusted to a lawyer); DR 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice); DR 7-102(A)(5) (knowingly making a false statement of law or fact); and DR 1-103(C) (failing to cooperate with disciplinary investigation). The accused did not respond to the Bar’s amended complaint. The trial panel entered an order of default and deemed the allegations in the Bar’s amended complaint to be true. 2 After considering evidence limited to the issue of the appropriate sanction, the trial panel filed its written opinion based on the amended complaint, finding the accused guilty as charged. The trial panel recоmmended that the accused be suspended from the practice of law for three years. We allowed the Bar’s motion to submit the matter on the record without oral argument, but with briefing. ORAP 11.25(3)(b).
We review
de novo.
ORS 9.536(3); Bar Rules of Procedure (BR) 10.1 and 10.6. The Bar has the burden of establishing a disciplinary violation by clear and convincing evidence. BR 5.2;
In re Dinerman,
The facts are derived from the allegations in the amended сomplaint.
On August 28, 1988, Frank Lockett (Lockett) was tried and convicted of robbery in the second degree by a jury in the circuit court. A judgment of an indeterminate sentence not to exceed ten years’ imprisonment was entered on October 4,1988. A timely notice of appeal was filed on October 31, 1988.
On November 2, 1988, the court appointed the accused to pursue Lockett’s appеal. On February 6,1989, the accused filed a motion for an extension of time from February 6, 1989, through March 6, 1989, to serve and file Lock-ett’s brief. On March 6, 1989, the accused filed a second motion for an extension of time to April 3, 1989. On April 5, 1989, the accused filed a motion to dismiss the appeal. In that motion, the accused stated that, after his review of the trial court record and consultation with Lockett, thеre were no meritorious issues raised in the record that were reviewable on appeal.
The accused did not consult with or advise Lockett, nor did he otherwise keep Lockett informed about the appeal or the motions for extension of time. The accused did not consult Lockett’s trial lawyer or discuss with him Lockett’s trial court record or possible issues for apрeal. The accused failed to advise Lockett that a motion to dismiss the appeal would be or had been filed or that the appeal had been dismissed. Moreover, the accused failed to respond to Lock-ett’s inquiries about the status of his appeal or its dismissal.
In the motion to dismiss the appeal, the accused represented to the court that the motion was “based on a review of the record and consultation with * * * Lockett,
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resulting in the determination that there were no meritorious issues raised in the record which are reviewable on appeal.” The representation of consultation with Lockett was false. The accused did not at any time discuss or communicate with Lockett about the record or issues of possible appeal, the dismissal of the appeal, or Lockett’s right to file a
pro se
brief.
See State v. Balfour,
As a result of an inquiry to the Comb of Appeals, Lockett learned on or about December 8, 1993, that the appeal had been dismissed. Lockett had received no communication of any nature from the accused. Between late November or early December 1988 and December 1993, Lockett had attempted to contact the accused by mail and by telephone. At least one letter was returned to him. In his attempts to reach the aсcused by telephone, Lockett was informed that the accused’s telephone number had been changed and, later, that the accused’s telephone service had been disconnected.
Lockett’s appeal was dismissed on April 6, 1989. Thereafter, the accused filed a petition for comb-appointed attorney fees and was awarded $177. In that petition, the accused represented that he had placed telephone calls to Lockett on November 22,1988, and April 3,1989. Telephone calls could be placed to Lockett’s counselor, but not directly to Lockett. Lockett claims that he has no recollection of ever receiving a telephone call from the accused, either directly or through his counselоr, and that he had not received any communication from the accused about the appeal.
The Bar received Lockett’s complaint concerning the accused’s conduct on or about November 30, 1993. On December 6, 1993, disciplinary counsel’s office forwarded a copy of Lockett’s complaint to the accused and requested that he respond on оr before December 27, 1993. The letter from disciplinary counsel’s office was mailed to the accused at two addresses. Both letters were returned with a corrected address noted. Disciplinary counsel’s office again mailed the letters to the accused at the corrected address.
*566 On or about January 3, 1994, the accused acknowledged receipt of those lettеrs and requested an opportunity to discuss the matter with Lockett before responding to the Bar. The accused thereafter did not respond to the Bar’s inquiries.
By letter dated January 12,1994, disciplinary counsel’s office advised the accused that his response was required and that the Bar Rules of Procedure do not permit disciplinary counsel’s office to discontinue the investigation under the circumstances presented. The accused again was asked to respond to the Bar’s inquiries on or before January 25, 1994. The accused did not respond. By letter dated February 3, 1994, disciplinary counsel’s office again requested that the accused respond to Lockett’s complaint on or before February 11,1994. The accused did not respond. The matter was then referred to thе Local Professional Responsibility Committee (LPRC) for further investigation. The LPRC requested the accused’s response to Lockett’s complaint. The accused did not respond.
The accused was personally served with the Formal Complaint and Notice to Answer on November 23,1994. The complaint charged the accused with violations of DR 6-101(B) and DR 1-103(C). On January 13,1995, the accused was served with a nоtice of deposition to perpetuate the testimony of Lockett at the Federal Correctional Institute at Sheridan, Oregon. The accused did not appear for Lockett’s deposition. On February 24,1995, the trial panel entered an order of default against the accused, based on his failure to answer the complaint or make other appearance.
On February 17, 1995, the Bar served an amended complaint on the accused. The amended complaint alleged three violations of the Code of Professional Responsibility, namely, DR 1-102(A)(3), DR 1-102(A)(4), and DR 7-102-(A)(5), in addition to those charges included in the original complaint. The accused did not answer the amended complaint or respond in any other manner. On March 16, 1995, the trial panel entered an order of default against the accused.
DR 6-10KB)
DR 6-101(B) provides that “[a] lawyer shall not neglect a legal matter entrusted to the lawyer.” A lawyer’s
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failure to take action after being appointed to represent a client constitutes neglect, in violation of DR 6-101(B).
See In re Biggs,
DR 1-102(A)(3)
DR 1-102(A)(3) provides that “[i]t is professional misconduct for a lawyer to * * * [ejngage in conduct involving dishonesty, fraud, deceit or misrepresentation[.J” The accused violated DR 1-102(A)(3) by representing to the court that he had consultеd with Lockett in advance of filing the motion to dismiss the appeal and that he had telephoned Lockett on other occasions, when neither fact was true.
DR 1-102(A)(4)
DR 1-102(A)(4) provides that “[ijt is professional misconduct for a lawyer to * * * [ejngage in conduct that is prejudicial to the administration of justice[.J” “A lawyer violates DR 1-102(A)(4) when the lawyer engages in conduct during the course of a judicial proceeding and the conduct causes or has the potential to cause harm or injury to either the procedural functioning of that proceeding or the substantive interest of a party to that proceeding.”
In re Altstatt,
DR 7-102(A)(5)
DR 7-102(A)(5) provides that, in a lawyer’s representation of a client, the lawyer shall not “[kjnowingly make a false statement of law or fact.” Whether a court is misled by the misrepresentation is irrelevant.
In re White,
DR 1-103(0
DR 1-103(C) provides:
“A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege.”
The accused violated DR 1-103(C). After being notified by the Bar that he was the subject of a disciplinary investigation, the accused failed to respond to all inquiries from disciplinary counsel’s office and the LPRC. He has not asserted that any applicable right or privilege excused his failure to respond.
See Dickerson,
SANCTION
We have found the accused guilty of several violations of the disciplinary rules: DR 6-101(B), DR 1-102(A)(3), DR 1-102(A)(4), DR 7-102(A)(5), and DR 1-103(C). We turn now to the task of deciding what sanction the accused’s conduct warrants. In determining the appropriate sanctiоn,
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we are guided by the American Bar Association’s
Model Standards for Imposing Lawyer Sanctions
(1991) (ABA Standards).
See, e.g., Altstatt,
(1) What is the nature of the ethical duty violated?
(2) What was the lawyer’s mental state at the time of the violation?
(3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct?
(4) Are there any aggravating or mitigating circumstances? ABA Standard 3.0.
We answer each of those four questions in turn to determine the appropriаte sanction for the accused’s misconduct.
The accused violated his ethical duties to the client, the legal system, the public, and the profession. ABA Standards 4.4, 4.6, 5.0, 6.0, 7.0. The most important ethical duties are those obligations that a lawyer owes to clients.
Dickerson,
The accused’s misconduct, however, caused actual injury to Lockett. Lockett was entitled to a judicial determination of his appeal. The accused’s misconduct denied him that opportunity. Moreover, public funds were paid to the accused for legal services that he did not render.
*570 There are several aggravating factors: the accused previously was disciplined for misconduct strikingly similar to the misconduct involved in this case; 3 he has substantial experience in the practice of law (he was admitted in 1982); hе had a selfish and dishonest motive; he is guilty of multiple offenses that, when coupled with his prior disciplinary record, demonstrate a pattern of misconduct; he was untruthful to the court; he failed to acknowledge the wrongful nature of his conduct; and he failed to cooperate with the Bar’s investigation. ABA Standard 9.22 (a), (b), (c), (d), (f), (g), and (i) (listing those factors). Another aggravating factor is that Lockett was vulnerаble, in that he was incarcerated and, at the time that this matter came before this court pursuant to ORS 9.536(2), BR 10.1 and BR 10.4, remained incarcerated and required competent legal assistance to evaluate and pursue available legal options. The accused’s failure to pursue and protect Lockett’s appeal precluded judicial determination. ABA Standard 9.22(h).
Due tо the accused’s failure to participate in these proceedings, the pleadings and record are devoid of mitigating circumstances.
The Bar urged the trial panel to suspend the accused from the practice of law for a period of two years. The trial panel determined that the accused be suspended for three years. The Bar now urges this court to suspеnd the accused from the practice of law for a period of three years, consistent with the recommendation of the trial panel.
Prior decisions of this court provide some guidance for imposition of a sanction in this case. In
In re Recker,
309
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Or 633,
In light of the ABA Standards, in light of this court’s precedents, and having particular regard for the significance of the accused’s professional misconduct and the many aggravating factors, we conclude that a three-year suspension from the practice of law is an appropriate sanсtion for the accused’s misconduct.
The accused is suspended from the practice of law for a period of three years commencing on the effective date of this decision.
Notes
The accused, in a nearly contemporaneous, unrelated disciplinary proceeding, stipulated to a 60-day suspension from the practice of law. That suspension remains in effеct.
Bar Rules of Procedure (BR) 5.8(a) provides in part:
“If an accused lawyer fails to resign or file an answer to a formal complaint within the time allowed by these rules, or if an accused lawyer fails to appear at a hearing set pursuant to BR 2.4(h), the trial panel may enter an order in the record finding the accused in default under this rule. The trial panel may thereafter deem the allegations in the formal complaint to be true. The trial panel shall thereafter proceed to render its written opinion based on the formal complaint, or at the discretion of the trial panel, after considering evidence or legal authority limited to the issue of sanction.”
In October 1993, the accused entered into a stipulation for discipline and accepted a 60-day suspension from the practice оf law for violation of DR 6-10HA), DR 6-10KB), DR 2-110(A)(l), DR 2-110(A)(2), and DR 7-101(A)(l). See In re Bourcier, 7 DB Rptr 115 (1993). In that case, the accused was appointed to represent a defendant on appeal of his criminal conviction. The accused decided that the appeal had no merit and did not file a brief with the Court of Appeals or respond to the court’s order to show cause why the appeal should not be dismissed. That court dismissed the appeal. The accused did not consult with his client concerning his assessment of the case and his decision not to file a brief, and he did not respond to the court’s order to show cause. He also failed to inform his client that the appeal was dismissed and failed otherwise to respond to his client’s inquiries about the status of the case. The accused remains suspended due to his failure to apply for reinstatement from that suspension. See BR 8.1 (stating requirement for formal application for reinstatement as an active member of the Bar).