In Re Complaint as to the Conduct of Unrein
This is a lawyer disciplinary proceeding. The Oregon State Bar charges that the accused violated DR 1-102(A)(3) 1 when she applied for and received four unemployment insurance benefit checks at a time when she knew that she was ineligible for unemployment benefits. A trial panel of the Disciplinary Board found the accused guilty and suspended her for 30 days.
The Bar sought review, contending that the sanction is inadequate and seeking a suspension of six months or more. The accused, in this court as below, does not contest her guilt but contends that the 30-day suspension is appropriate. On de novo review, ORS 9.536(3), we find the accused guilty of violating DR 1-102(A)(3) and suspend her for 120 days.
The material facts are, as noted, undisputed. During each of four weeks in March and April of 1992, the accused applied for and received unemployment compensation benefits of $176. In order to receive those benefits, the accused was required to fill out a form in which she certified that she had not worked for the week for which the benefits were paid. Although the accused so certified, four times, she in fact had worked part time as a lawyer in a law office (for which she received compensation of $10 per hour) during each of those four weeks.
We conclude, as did the trial panel, that the accused violated DR 1-102(A)(3) by submitting claims for unemployment insurance benefits to which she knew she was not entitled and by misrepresenting her employment status to the Employment Division so as to receive benefits. We turn next to the issue of sanction.
In determining the appropriate sanction, this court looks to the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (ABA Standards). Under the ABA Standards, there are four factors to consider: “(a) the duty violated; (b) the lawyer’s mental state; (c) the actual *288 or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” ABA Standard 3.0.
The accused violated her duty to maintain personal integrity. That is a fundamental duty that a lawyer owes to the public. See ABA Standards at 36 (discussing sanctions for lawyers who violate their duty to the public under ABA Standards 5.1 to 5.24).
The accused acted intentionally, the most culpable mental state under the ABA Standards. A lawyer acts intentionally when she has “the conscious objective or purpose to accomplish a particular result.” ABA Standards at 7. Here, the conscious objective of the accused was to obtain unemployment benefits for which she was ineligible.
The acts of the accused caused actual harm. The Employment Division paid the accused substantial benefits to which she was not entitled. Also, the agency was put to the expense and inconvenience of a fraud investigation and hearings to establish the amount of benefits that the accused had obtained wrongfully.
Finally, we consider aggravating and mitigating factors.
With respect to aggravating factors, there was a pattern of misconduct, ABA Standard 9.22(c); the accused made four separate false statements, at different times. In addition, the accused was not completely candid in the present proceedings. ABA Standard 9.22(f). Initially she told the Bar’s investigator that she had mistakenly applied for benefits, rather than admitting that the statements were false, as she later did.
With respect to mitigating factors, the accused has no prior disciplinary record. ABA Standard 9.32(a). That factor is especially significant because four years have passed since the events which gave rise to the disciplinary charges, during which there have been no other complaints against the accused. See ABA Standard 9.32(i) (delay in disciplinary proceedings is a mitigating factor). Additionally, the accused is remorseful. ABA Standard 9.32(1).
*289
No two disciplinary cases are alike, but
In re Busby,
“In the recent case of In re Smith, [315 Or 260 , 266-67,843 P2d 449 (1992),] this court reviewed the sanctions imposed in several prior cases involving violations of DR 1-102(A)(3):
“ ‘In other cases where lawyers have violated DR 1-102(A)(3) as part of an intentional scheme, this court has imposed suspensions of up to four months’ duration. In the recent case of In re Magar,312 Or 139 ,817 P2d 289 (1991), this court suspended a lawyer from the practice of law for 60 days when he endorsed a draft with another’s name despite his knowledge that the person whose name he signed did not wish him to do so. In/rc re Fuller,284 Or 273 ,586 P2d 1111 (1978), this court imposed a 60-day suspension when a lawyer failed to correct false impressions that his clients had about his handling of their case. In In re Hiller,298 Or 526 ,694 P2d 540 (1985), this court imposed a four-month suspension when two lawyers attempting to help a client collect on a promissory note arranged to transfer for one dollar the client’s interest in certain real property to their secretary in order to trigger a condition in the note requiring payment upon sale of the property.’
“In In re Smith, supra, this court imposed a four-month suspension when a lawyer plotted to take 31 clients away from his employer, exposing his clients and his firm to substantial risks. Id. at 267.” Busby,317 Or at 218-19 .
The accused argues that the most analogous case is
In re Dinerman,
A key distinction between
Dinerman
and
Busby
is the presence in the latter case of a pattern of conduct, as distinct from a one-time event. Both
Busby
and
Smith,
on which it relied, involved patterns of conduct.
See also In re Melmon,
The accused is suspended from the practice of law for 120 days.
Notes
DR 1-102(A)(3) provides that “[i]t is professional misconduct for a lawyer to * ** * [elngage in conduct involving dishonesty, fraud, deceit or misrepresentation.”