Summary
applying that mitigating factor in light of four-year delay in proceeding; factor "especially significant" because, during period of delay, no further complaints filed against accused lawyer
Summary of this case from In re LeuenbergerOpinion
OSB 93-161; SC S42485
Argued and submitted May 8, 1996
Accused suspended from the practice of law for 120 days June 7, 1996
In Banc
On review from the decision of a Trial Panel of the Disciplinary Board.
Martha H. Hicks, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar.
Paul R.J. Connolly, of Donaldson, Albert, Tweet, Connolly, Hanna Muniz, LLP, Salem, argued the cause and filed the brief for the accused.
PER CURIAM
The accused is suspended from the practice of law for 120 days.
This is a lawyer disciplinary proceeding. The Oregon State Bar charges that the accused violated DR 1-102(A)(3) 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.
DR 1-102(A)(3) provides that "[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation."
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 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(l).
No two disciplinary cases are alike, but In re Busby, 317 Or. 213, 855 P.2d 156 (1993), is similar to the present one. In that case, the accused violated DR 1-102(A)(3) and ORS 9.527 (4), which prohibits willful deceit or misconduct in the legal profession. The accused in that case withheld income from the firm to which he was "of counsel" and made misrepresentations to the office administrator, as a result of which he received more fees than he was entitled to. 317 Or at 215-16. As here, the court found more mitigating factors than aggravating factors. Id. at 218. This court imposed a four-month suspension after reviewing some of the earlier cases:
"In the recent case of In re Smith, [ 315 Or. 260, 266-67, 843 P.2d 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 P.2d 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 In re Fuller, 284 Or. 273, 586 P.2d 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 P.2d 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, 314 Or. 308, 840 P.2d 50 (1992), in which this court imposed a 63-day suspension. Dinerman had made false representations in a promissory note and security agreement in order to obtain a straw loan for a client. 314 Or at 314. That conduct violated former DR 1-102(A)(3) (conduct involving moral turpitude), former DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), and DR 7-102(A)(7) (counseling or assisting client in fraudulent conduct).
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, 322 Or. 380, 908 P.2d 822 (1995) (accused made one misrepresentation and engaged in a pattern of conflicts of interest; 90-day suspension imposed). Here, too, the accused engaged in an intentional pattern of conduct involving four separate occasions of dishonesty. In the circumstances, we conclude that a 120-day suspension is the appropriate sanction.
The accused is suspended from the practice of law for 120 days.