Thе Oregon State Bar (Bar) charged the accused by formal complaint with violating ORS 9.160 (engaging in the unlawful
A trial panel of the Disciplinary Board entered an order finding the accused in dеfault. Bar Rule of Procedure (BR) 5.8(a). 7 Thereafter, the trial panel deemed the allegations in the formal complaint to be true and held a hearing solely on the issue of sanction. The trial panel suspended the accused from the practice of law for one year.
ORS 9.536(2) requires this court to review the trial panel’s decision.
See also
BR 10.1 (same). We review
de novo.
ORS 9.536(3); BR 10.6. The accused did not file a brief or make any appearance in this court. We granted the Bar’s motion to submit the matter on the record without oral argument. ORAP 11.25(3)(b). For purposes of review, because the accused defaulted, we deem the allegations contained in the Bar’s complаint to be true.
In re Crist,
The Bar’s formal complaint against the accused alleged, in part:
“3.
“On or about July 6, 1993, the Accused was suspended from the practice of law in the State of Oregon and was, at all relevant times herein, not an active member of the Oregon State Bar.
“4.
“Prior to June, 1995, the Accused undertook to reprеsent Allen Mackey (hereinafter referred to as “Mackey”) in a conservatorship/guardianship proceeding pending in Grant County, Oregon. During this representation, the Accused rendered legal advice to Mackey.
“5.
“On or about June 6, 1995, the Accused drafted a Petition to Block Accounts on her pleading paрer for Mackey’s signature. On or about June 6, 1995, the Accused corresponded with opposing counsel on Mackey’s behalf and filed the Petition to Block Accounts with the Oregon Circuit Court in Grant County.
“6.
“On October 17, 1995, the Accused appeared on Mackey’s behalf at a telephone hearing in Case No. 94-11324PR, Circuit Court, Statе of Oregon, County of Grant. In so appearing the Accused held herself out to the court as an active member of the Oregon State Bar and eligible to practice law in this state when she was not.
******
“10.
“On June 7,1996, the Oregon State Bar received a complaint concerning the Accused’s conduct. On June 14,1996 and July 26, 1996, the Disciplinаry Counsel’s Office forwarded a copy of the complaint to the Accused and requested her response to it. The Accused responded on September 13,1996.
“11.
“On September 20, 1996, October 4, 1996, and October 18, 1996, the Disciplinary Counsel’s Office requested the Accused’s response to specific questions with regard to her сonduct. The Accused made no response.
“12.
“On June 25, 1997 and July 29, 1997, a member of the Baker/Grant [C]ounty Local Professional Responsibility Committee (LPRC) contacted the Accused by mail and by telephone and requested her response to the complaint. The Accused made no response.
“13.
“While the subject of a disciplinary investigation, the Accused failed to cooperate with the Disciplinary Counsel’s Office and with LPRC which are empowered to investigate or act upon the conduct of lawyers.”
On the basis of the Bar’s formal complaint and the accused’s default, we agree with the trial panel that the accused violated ORS 9.160, DR 1-102(A)(3), DR 1-102(A)(4), and (as corrected) DR 3-101(B), by representing a client in an Oregon circuit court proceeding while not an active member of the Oregon State Bar. We also agree with the trial panel that the accused violated DR 1-103(C), by failing to cooperate with the Bar’s inquiries regarding her misconduct.
We next determine the appropriate sanction. This court refers to the American Bar Association’s
Standards for Imposing Lawyer Sanctions
(1991) (amended 1992) (ABA Standards) for guidance in determining the appropriate sanction.
In re Howser,
We first consider the duties that the accused violated. By practicing law during a period of suspension, the accused violated
We turn next to the mental state of the accused. The ABA Standards рrovide that a lawyer acts with “intent” if he or she has a “conscious objective or purpose to accomplish a particular result.” ABA Standards at 17. A lawyer acts with “knowledge” if he or she has a “conscious awareness of the nature or attendant circumstances of the conduct,” but does not have a “conscious objective or purpose to accomplish a particular result.” Id.
The accused is presumed to know that the law requires a person who practices law in Oregon to be an active member of the Oregon State Bar.
Devers,
For the following reasons, we also conclude that the accused knowingly failed to cooperate with the Bar’s investigation. The record indicates that the accused signed a return receipt for a letter from the Bar notifying her of the allegations and requesting a response from her to those allegations.
8
Additionally, the record also shows thаt the Bar personally served the accused with a copy of the complaint and that the accused returned the notice to answer with a signed Form B resignation form attached. Based on those facts, we conclude that the accused acted “knowingly” when she failed to respond to the Bar’s inquiries, that is, with a “conscious awareness of the nature or attendant circumstances of her
conduct, but without a conscious objective or purpose to accomplish a particular result.”
See In re Miles,
As to the injury caused by the accused’s misconduct, we note that “injury” includes actual оr potential harm to a client, the public, the legal system, or the legal profession. ABA Standards at 6-7. Although the Bar does not allege that the accused’s client suffered actual harm as a result of her unlawful practice of law, the Bar correctly asserts that the unauthorized practice of law inherently cаrries with it the potential to injure the legal system.
See In re Whipple,
The accused’s misconduct implicates several ABA Standards. ABA Standard 5.11 provides, in part:
“Disbarment is generally appropriate when:
«* * « * *
“(b) a lawyer engages in * * * intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriouslyadversely reflects on the lawyer’s fitness to practice.”
ABA Standard 6.12 provides:
“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 7.1 provides:
“Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.”
ABA Standard 7.2 provides: .
“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.”
Based on the foregoing, we make an initial determination that either disbarment or a suspension would be appropriate in this case. We now сonsider the applicable aggravating and mitigating circumstances that might affect our determination of the appropriate sanction.
We find only one aggravating factor: The accused’s misconduct involved multiple offenses. ABA Standard 9.22(d). The sole mitigating factor is that the accused has no prior disciplinаry record. ABA Standard 9.32(a).
The remaining consideration is this court’s case law. Although we find no cases directly on point, the following are instructive. In
Devers,
The Bar suggests, and the trial panel concluded, that a one-year suspension is appropriatе here. The Bar directs our attention to
In re Jones,
Drawing together the factors of the duty violated, the mental state of the accused, the injury caused, and the aggravating and mitigating factors, in addition to our consideration of this court’s priоr case law, we conclude that a one-year suspension is the appropriate sanction for the accused’s misconduct — engaging in the unauthorized practice of law while suspended for failure to pay her Bar dues, engaging in conduct involving dishonesty and misrepresentation, engaging in conduct prejudiсial to the administration of justice, and failure to cooperate with the Bar’s investigation of that misconduct. 9
Notes
ORS 9.160 provides:
“Except for the right reserved to litigants by ORS 9.320 to proseсute or defend a cause in person, no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.”
DR 1-102(AK3) provides, in part:
“It is professional misconduct for a lawyer to:
“Engage in conduct involving dishonesty, fraud, deceit or misrepresentation!. 1”
DR 1-102(A)(4) provides, in part:
“It is professional misconduct for a lawyer to:
“Engage in conduct that is prejudicial to the administration of justice!.1”
DR 3-10KB) provides:
“A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.”
The Bar pleaded, and the trial court found, that the accused violated DR 3-10KA), which prohibits aiding a nonlawyer in the unlawful practice of law. The referеnce to that Disciplinary Rule appears to have been a typographical error. There are no facts alleged in the complaint that would support a violation of DR 3-101(A). Moreover, in its memorandum to the trial panel concerning sanctions, the Bar distinguished the misconduct of the accused — practicing law while suspended — from the misconduct in
In re Jones,
DR 1-103(C) provides:
“A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully tо 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.”
Instead of filing an answer to the formal complaint, the accused returned the notiсe to answer and executed the sample Form B resignation attached to it. The Bar submitted the accused’s resignation to this court for consideration. Bar Rule of Procedure (BR) 9.2. We declined to accept the accused’s resignation, because it did not comply with BR 12.7.
BR 5.8(a) provides, in part:
“If an accused lawyer fails to resign or filе 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 сomplaint 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. *
The record also suggests that the accused responded to the complaint in a letter dated September 13,1996. The Bar did not include the accused’s letter as part of the record in this proceeding. In a subsequent letter, the Bar acknowledged the accused’s response and requested additional information. The accused, however, did not respond to that, or any other, additional inquiry by the Bar or the LPRC.
If the accused desires to be reinstated as an active member of the Bar, then she must submit a formal application. See BR 8.1(a)(iv) and (viii) (formal application required for reinstatement of member of Bar who has been suspended for misconduct for period of more than six months and/or for member of Bar who has been suspended for failure to pay membership fees and has remained in that status more than five years).