This is a lawyer disciplinary proceeding. The Oregon State Bar (Bar) charged the accused with violating the Code of Professional Responsibility DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice) and DR 7-106(C)(6) (engaging in undignified or discourteous conduct degrading to a tribunal). A trial panel found that the accused violated both those rules and imposed a 90-day suspension. Review in this court is automatic pursuant to
former
BR 10.1 (1997) of the Bar Rides of Procedure.
1
This court has jurisdiction pursuant to ORS 9.536(1), BR 10.1, and BR 10.3. We review
de novo.
ORS 9.536(3); BR 10.6. The Bar has the burden of proving misconduct
On review, the accused argues that his conduct violated neither of the charged rides. Alternatively, he argues that a 90-day suspension is excessive and therefore inappropriate. Additionally, the accused argues that DR 1-102(A)(4) is unconstitutionally vague and therefore void, and that no sanction can be imposed for violation of that rule.
For the reasons that follow, we conclude that the accused violated DR 1-102(A)(4) and DR 7-106(0(6). We further conclude that DR 1-102(A)(4) is not unconstitutionally vague. Finally, we conclude that the 90-day suspension imposed by the trial panel is appropriate.
We make the following findings of fact. The accused was admitted, to the practice of law in Oregon in 1967. On May 9, 1994, he appeared at a Driver and Motor Vehicles Division (DMV) hearing on behalf of a client. At issue was whether the client’s driver license should be suspended.
The accused admits that he had several drinks before appearing at the DMV hearing. The other persons present — DMV Hearings Officer Karlene Mills and State Trooper James Pierce — testified that the accused smelled of alcohol, acted silly and giggly, made nonsensical remarks, had red, glazed eyes, seemed to have trouble keeping his balance, and threw documents into the air for no apparent reason. Based on the accused’s admission and his behavior, we find that the accused appeared on behalf of his client at the DMV hearing while under the influence of intoxicants.
Because of the accused’s condition and behavior at the DMV hearing, Hearings Officer Mills became convinced that the accused was in no condition to represent his client. She therefore terminated the hearing and rescheduled it for a later date.
The Bar charged the accused with violations of DR 1- 102(A)(4) and DR 7-106(C)(6), based on his conduct at the DMV hearing. The trial panel found that the accused violated both those disciplinary rules.
DR 1-102(A) provides, in part:
“It is professional misconduct for a lawyer to:
“(4) Engage in conduct that is prejudicial to the administration of justice.”
DR 1-102(A)(4) is violated by a single act that is substantially harmful to the administration of justice.
In re Haws,
The Bar argues that, by appearing at the DMV hearing on behalf of his client while under the influence of intoxicants, the accused committed a single act that was substantially harmful to the administration of justice. We agree. The accused prejudiced the procedural functioning of the DMV hearing process, causing the hearings officer to reschedule the hearing.
See In re Wyllie,
We reject the accused’s contention that DR 1-102(A)(4) is unconstitutionally vague. This court has held that the terms of DR 1-102(A)(4) are sufficiently definite to withstand a claim of constitutional vagueness.
Haws,
DR 7-106(C) provides, in part:
“In appearing in the lawyer’s professional capacity before a tribunal, a lawyer shall not:
“(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.”
DR 10-101(H) defines “tribunal” as “all courts and other adjudicatory bodies.” The DMV hearing was a tribunal, because the hearings officer had authority to adjudicate the charges against the accused’s client. She could dismiss those charges, or she could suspend the client’s driving privileges for up to three years. The hearings officer also is required to make findings of fact and conclusions of law and to develop the factual record on which any appeal would be based. See generally ORS 809.440 (setting out DMV hearing and administrative review procedures).
The accused concedes that his conduct was undignified and discourteous. He denies, however, that his conduct was degrading to the tribunal. We disagree. To “degrade” means to “bring to low esteem or disrepute.”
Webster’s Third New Int'l Dictionary,
594 (unabridged ed 1993). The accused’s behavior demonstrated a profound disrespect for the tribunal and for the hearings officer, and tended to lower the esteem in which that tribunal is held.
See, eg., Disciplinary Counsel v. Donnell,
79 Ohio St 3d 501,
Because we find that the accused violated DR 1-102(A)(4) and DR 7-106(0(6), it is necessary to impose an 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 for lawyer misconduct.
In re Schaffner,
“The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession.” ABA Standard 1.1.
In
In re Carstens,
“Proceedings for the discipline of an attorney are not to punish the attorney for the commission of a crime. That matter is left to the criminal courts. The objects of the proceedings here are to uphold the dignity and respect of the profession, protect the courts, preserve the administration of justice and protect clients.”
The ABA Standards establish an analytical framework for determining the appropriate sanction in lawyer disciplinary cases, using three factors: (1) the duty violated; (2) the accused lawyer’s mental state; and (3) the actual or potential injury caused by the accused lawyer’s misconduct. ABA Standard 3.0. This court examines each of those factors and makes an initial determination of the appropriate sanction.
See
ABA Standards at 5-6 (explaining analytical framework and its application). If mitigating or aggravating circumstances are present, the court considers those as a fourth
factor and determines whether the sanction should be adjusted
(i.e.,
increased or decreased).
Id.
at 6; ABA Standard 3.0. In determining the correct sanction, the court also examines the conduct of the accused in light of the court’s prior case law.
In re Garvey,
The accused violated his duty to avoid conduct that reflects adversely on the lawyer’s fitness to practice law. ABA Standard 5.14. The accused also violated his duly to the legal system to avoid conduct which creates interference or potential interference with a legal proceeding. ABA Standard 6.22. We conclude that the accused acted “knowingly,” defined as a conscious awareness of the nature or attendant circumstances of the conduct, but without a conscious objective or
ABA Standards 5.14 and 6.22, respectively, provide:
“Admonition is generally appropriate when a lawyer engages in * * * conduct that reflects adversely on the lawyer’s fitness to practice law.”
“Suspension is generally appropriate when a lawyer knows that he or 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.”
Drawing together the factors of duty violated, the accused’s mental state, and the actual injury caused, we conclude, initially, that suspension is an appropriate sanction in this case. We now turn to examination of aggravating and mitigating circumstances.
Several aggravating factors are present here. First, the accused has committed a prior disciplinary offense. ABA Standard 9.22(a). The “prior offenses” aggravating factor “refers to offenses that have been adjudicated prior to imposition of the sanction in the current case.”
In re Jones,
In 1990, the accused was publicly reprimanded for neglecting a legal matter and improperly withdrawing from representation of a client. That public reprimand was imposed before the accused engaged in the misconduct at issue here. That 1990 reprimand demonstrates that the accused had “both warning and knowledge of the disciplinary process.”
In re
Hereford,
This case presents additional aggravating factors. The accused refused to acknowledge the wrongful nature of his conduct, ABA Standard 9.22(g), and the accused has substantial experience in the practice of law, ABA Standard 9.22(i).
The accused presents no mitigating factors, and we find none. We now turn to consideration of this court’s prior case law.
There are two cases that are closely analogous to this one. The most recent is
In re Wyllie.
In that case, the accused lawyer appeared in court while intoxicated on several occasions. On two of those occasions, the accused’s intoxicated state resulted in delay of the proceedings.
Taking all the relevant factors into consideration, we conclude that a 90-day suspension is appropriate.
The accused is suspended from the practice of law for a period of 90 days, commencing 60 days from the date of this decision.
Notes
Former BR 10.1 (1997) provided for automatic review in the Supreme Court where the decision of the trial panel resulted in disbarment or suspension for a period longer than 60 days. BR 10.1 was amended on October 4,1997, allowing for automatic review where the accused is disbarred or suspended for a period longer than six months.