In Re Complaint as to the Conduct of Carini , 354 Or. 47 ( 2013 )

No. 36 August 15, 2013 47
IN THE SUPREME COURT OF THE
STATE OF OREGON
In re Complaint as to the Conduct of
PETER CARINI,
Accused.
(OSB 10125; SC S060708)
En Banc
On review from a decision of a trial panel of the
Disciplinary Board.
Argued and submitted April 30, 2013.
Lee S. Werdell, Bend, argued the cause and filed the
briefs for the accused.
Stacy J. Hankin, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State
Bar.
PER CURIAM
The accused is suspended from the practice of law for
30 days, commencing 60 days from the date of filing of this
decision.
In this attorney discipline proceeding, the Bar charged the accused with
violating Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits engaging
in conduct that is prejudicial to the administration of justice. The trial panel
determined that the accused had violated that rule, and it recommended his
suspension from the practice of law for 30 days. On review, the accused challenges
the trial panel’s determinations regarding the rule violation and sanction,
arguing that the Bar failed to prove that his conduct caused “substantial harm”
to the administration of justice; that the Bar had impermissibly based on the
charge in this case on his aggregated conduct in representing four different
clients, and that the Bar was required to prove that he had intended to prejudice
the administration of justice, and that the Bar had failed to do so. Held: On de
novo review the Supreme Court held that the accused violated RPC 8.4(a)(4) by
his repeated, negligent, failures to appear for scheduled court proceedings, and
that his conduct had resulted in some harm to the administration of justice. The
court rejected the accused’s argument that the Bar impermissibly based on the
charge on his aggregated conduct, and also rejected the accused’s contention that
the Bar was required to prove that he had acted intentionally.
The accused is suspended from the practice of law for 30 days, commencing
60 days from the date of filing of this decision.
48 In re Carini
PER CURIAM
In this attorney discipline proceeding, the Bar
charged the accused with violating Rule of Professional Con-
duct (RPC) 8.4(a)(4), which prohibits engaging in conduct
that is prejudicial to the administration of justice.1 The
trial panel determined that the accused had violated that
rule, and it recommended his suspension from the practice
of law for 30 days. On review, the accused challenges the
trial panel’s determinations regarding the rule violation
and sanction. On de novo review, we find that the accused
violated RPC 8.4(a)(4), and we further conclude that a
30-day suspension is the appropriate sanction.
I.  FACTUAL BACKGROUND
This proceeding arose out of the accused’s failures
to appear in court for scheduled hearings in the course of
representing four different clients. The accused is a criminal
defense attorney, and all four of his clients in the proceedings
at issue here were defendants facing pending criminal
charges before the Josephine County Circuit Court. We find
the following facts by clear and convincing evidence.
A.  The Gales and Lockwood Matters
The accused represented Gales in a criminal pro-
ceeding; the case was set for a docket call on April 21, 2010.
The accused also represented Lockwood in a criminal pro-
ceeding that was set for docket call the same day. The
accused had received notice of the docket calls in each case
in February 2010, and the appearances were entered on his
calendar.
At docket call, which occurs on the Wednesday
before the week that a case is scheduled for trial, the parties
report whether they are ready for trial the following week.
Information obtained at docket call allows the court to
efficiently and accurately determine which of the trials that
are scheduled for the following week will actually be tried
1
RPC 8.4(a)(4) provides:
“(a)  It is professional misconduct for a lawyer to:
“* * * * *
“(4)  engage in conduct that is prejudicial to the administration of justice[.]”
Cite as 354 Or 47 (2013) 49
and which will be reset, either on motion or because there are
insufficient judges available. Pursuant to a Josephine County
Circuit Court local rule, attorneys are required to appear for
a docket call either in person or, if prior arrangements are
made, by telephone. The mandatory appearance rule allows
the court to simultaneously obtain all the information that it
needs from the parties and communicate the trial schedule
to the parties in an orderly and efficient manner.
The accused did not appear for docket call on April 21
in either the Gales or Lockwood cases. His clients did not
appear either. As a consequence, the court issued arrest war-
rants for both Gales and Lockwood. The court telephoned the
accused later in the day on April 21 to inquire why he had
not appeared. The accused replied that he had had a trial in
another county, that he had forgotten to call the court, and
that he had forgotten to give the court a call back number.
Presiding Judge Wolke instructed the accused to
send a letter to the court explaining why he had not been pre-
sent at the docket call. The accused did so, stating that it
was his office policy for a staff member to arrange for a
telephone appearance for docket calls and that he thought
that such an arrangement had been made for the April 21
docket calls. However, an employee of the accused, Byrnes,
testified before the trial panel that the court’s “general
policy” was for the accused to appear in person unless specific
arrangements had been made for a telephone appearance.
According to Byrnes, if a telephone appearance had been
arranged, a notation to that effect would have been placed
on the accused’s office calendar. No such notation had been
made for the April 21 docket call appearances.
B.  The Burton Matter
The accused represented Burton in a criminal pro-
ceeding that was set for a docket call on June 9, 2010, with
trial to follow on June 17. Pursuant to the court’s local rules,
the accused made prior arrangements to appear by telephone
at the docket call. At the appointed time, the court called the
accused at the number that he had provided. However, the
accused did not answer; instead, the voicemail message gave
another number to call. The court called that second num-
ber, and no one answered. The accused had begun having
50 In re Carini
trouble with his office phone system in March 2010. The
accused knew of the problems with the phone system, but he
failed to take steps to ensure that the court could reach him
for the docket call on June 9.
Burton did not appear at the docket call, nor did
either the accused or Burton appear for trial on June 17. At
that point, the court issued a warrant for Burton’s arrest. On
August 5, the court held a further hearing at the accused’s
request to resolve the outstanding arrest warrant. Both the
accused and Burton appeared at the August 5 hearing, and
the court recalled the arrest warrant.
C.  The Westfall Matter
The accused represented Westfall in a criminal
proceeding. A status hearing was set for May 17, 2010, at
1:30 p.m. At a status hearing, the parties report whether any
discovery issues exist in a case and whether the case will be
resolved with a plea or should be set for trial. The status hear-
ing is an important scheduling tool for the court, because 70
to 80 percent of the cases are resolved with a plea at status
hearings. The results of those hearings allow the court to
focus its limited time and resources on those cases that will
be tried.
The accused received notice of the status hearing
and set the matter on his calendar. The accused called the
court at 1:27 p.m. on May 17 and advised that he would be
late because he had a court appearance in a different county.
The court deferred considering the Westfall matter until
2:45 p.m. Because neither the accused nor Westfall had arrived
by then, the court issued a warrant for Westfall’s arrest.
The accused arrived at the Josephine County courthouse at
about 3:15 p.m., after the court had recessed.
On May 28, the court held another status hearing in
the Westfall case at the accused’s request. Both the accused
and Westfall appeared at that hearing, and the court
recalled the warrant for Westfall’s arrest.
Cite as 354 Or 47 (2013) 51
D.  The Trial Panel Decision
On October 28, 2010, the Bar filed a formal com-
plaint charging the accused with having violated RPC
8.4(a)(4) by missing the three docket calls and the status
hearing. A trial panel was appointed, and the matter was
heard on October 4, 2011, and May 17, 2012. The trial panel
issued an opinion that included the following findings:
“The accused’s actions in all four cases violated his
duty to the legal process and his profession and the duty
to protect his clients by failing to abide by court rules. His
conduct was prejudicial to the administration of justice in
the following particulars:
“He wasted court and staff time in having to deal with
his inability to be prompt either in person or by phone for
these various court matters. The court is short handed and
does not have the time to deal with the accused and his
failure to appear for court hearings. In addition, warrants
had to be issued for all four cases.
“*  *[T]he accused knew the phone system was failing
*
and took no action (until the system was replaced) to ensure
his appearances in court. His conduct in the cases [came]
after he had previously been disciplined in Carini I for a
similar violation. He was given a 30-day suspension which
was suspended provided he completed certain conditions.
The accused was on notice that his failure to follow the
court rules in the future would not be tolerated.
“The trial panel finds that the Josephine County Circuit
Court has just and actual injuries in the form of additional
work, additional staff and additional court time dealing
with the accused’s failure to appear. Westfall potentially
could have been injured as the court issued a warrant
for his arrest for failure to appear. Nothing came of it as
Westfall accepted a plea deal the day after the warrant was
issued.”
With regard to the proper sanction, the trial panel
found, as an aggravating factor, that the accused had a prior
disciplinary offense. That offense was based on a February
2010 decision by a Disciplinary Board trial panel that the
52 In re Carini
accused had violated RPC 3.4(C) 2 and RPC 8.4(a)(4) when,
for an extended period in late 2007, in violation of a court
rule, he did not resolve known trial scheduling conflicts,
resulting in his failure to appear for trial in Josephine
County Circuit Court. (Carini I). When the accused did not
appear for trial, the court was forced to dismiss a jury called
to hear the case. The trial panel in that proceeding also
found that the accused had violated a different rule, RPC
1.4(a),3 in connection with his representation of another
client. The trial panel imposed a 30-day suspension, but
stayed the suspension pending 90 days’ probation. During
that probationary period, the accused was required to adopt
measures to avoid the type of scheduling conflicts that had
caused the violations at issue. The probationary period in
Carini I began on April 24, 2010, and ended on July 23, 2010.
The conduct at issue in this proceeding occurred either just
before or during the 90-day probationary period in Carini I.4
The trial panel in this proceeding also found that
the accused had substantial experience in the practice of law,
and had not “demonstrate[d] any appreciable appreciation
as to the effects of his actions, or lack of action, has had
on the court or much less on his clients.” In mitigation, the
panel found that the accused had not acted dishonestly
and had cooperated during the disciplinary process. After
considering those aggravating and mitigating factors, the
trial panel recommended that the accused be suspended
from the practice of law for 30 days.
II.  THE PARTIES’ CONTENTIONS
On review, the accused first contends that the Bar
failed to prove that his conduct resulted in “substantial
2
RPC 3.4(c) provides:
“A lawyer shall not:
“* * * * *
“(c)  knowingly disobey an obligation under the rules of a tribunal, except
for an open refusal based on an assertion that no valid obligation exists[.]”
3
RPC 1.4(a) provides:
“(a)  A lawyer shall keep a client reasonably informed about the status of
a matter and promptly comply with reasonable requests for information[.]”
4
Neither the accused nor the Bar appealed the trial panel’s decision in Carini I
to this court.
Cite as 354 Or 47 (2013) 53
harm,” which, he asserts, is necessary to establish that his
conduct prejudiced the administration of justice in violation
of RPC 8.4(a)(4). According to the accused, the issuance of
an arrest warrant is “simply a matter of a clerk pushing a
button which causes the warrant to be printed,” and there-
fore, his failures to appear did not substantially increase
the amount of time or effort that court staff had to expend.
Moreover, the accused asserts, because his clients failed
to appear at their respective court proceedings, and he
had no control over their choices in that regard, the court
would have issued the arrest warrants anyway, and thus,
his own failure to appear had no additional impact on court
operations. The accused reasons that the time that the court
spent calling him to determine whether he would appear
was insignificant and that “all activities of the judge and his
clerk were accomplished in the normal course of their work
during regular work hours.” In all, the accused opines, the
court likely expended no more than 15 minutes as a result
of his failures to appear. The accused relies on this court’s
decision in In re Lawrence, 350 Or 480, 256 P3d 1070 (2011),
for the proposition that time and effort that a court spends
communicating with an attorney concerning the attorney’s
conduct cannot “serve as the basis for a finding of substantial
harm in violation of [RPC 8.4(a)(4)].”
Second, the accused asserts that the Bar imper-
missibly based the charge in this case on his aggregated
conduct in representing four different clients. The accused
argues that permitting the Bar to combine, in a single charge
based on RPC 8.4(a)(4), instances of conduct involving
multiple client representations would expose “almost every
lawyer who has practiced over a lengthy period of time” to
prosecution under that rule. Accordingly, the accused urges
this court to conclude that a charge under RPC 8.4(a)(4)
must be limited to conduct occurring within the course of a
single representation of a single client.
Finally, the accused asserts that, to violate RPC
8.4(a)(4), an attorney must intentionally engage in conduct
that is prejudicial to the administration of justice. The
accused asserts that no evidence in the record shows that
he intended to miss his court appearances. The accused
54 In re Carini
asserts that we noted, but did not decide, that issue in In re
Claussen, 322 Or 466, 909 P2d 862 (1996).5
The Bar replies that the accused repeatedly vio-
lated court rules in ways that were prejudicial to the admin-
istration of justice because, “when a lawyer does not appear
for a docket call or a scheduling conference, then the court
must take additional steps to contact the lawyer in order to
obtain the information it needs to manage the docket. Issuing
warrants also requires staff and judicial time.” The Bar
further asserts that the accused’s failures to appear created
the potential for harm to his clients, who were exposed to
the risks of arrest and unrepresented court appearances.
With regard to the accused’s second argument, the
Bar contends that the text of RPC 8.4(a)(4) does not pro-
hibit the aggregation of conduct involving multiple client
representations in a single charge for violating that rule.
Finally, the Bar asserts that RPC 8.4(a)(4) does not include a
mental state requirement, relying on this court’s statement
in Claussen, 322 Or at 482, that the rule “focuses on the
effect a lawyer’s conduct has on the administration of justice,
rather than on the lawyer’s state of mind when the conduct
is undertaken.”
III. ANALYSIS
With the parties’ arguments so framed, we return
to the text of RPC 8.4(a)(4). As noted, that rule provides:
“(a)  It is professional misconduct for a lawyer to:
“* * * * *
“(4)  engage in conduct that is prejudicial to the
administration of justice[.]”
To establish a violation of RPC 8.4(a)(4), the Bar must prove
that (1) the accused lawyer’s action or inaction was improper;
(2) the accused lawyer’s conduct occurred during the course
5
The accused also raises several challenges to RPC 8.4(a)(4) under the state
and federal constitutions. Among other arguments, the accused asserts that RPC
8.4(a)(4) is “void for vagueness.” The accused acknowledges that we rejected a simi-
lar argument in In Re Rook, 276 Or 695, 556 P2d 1351 (1976), but he asks that we
overrule the decision in that case. We decline to do so. Accordingly, we reject the
accused’s argument that RPC 8.4(a)(4) is “void for vagueness,” and we reject his
remaining constitutional challenges without discussion.
Cite as 354 Or 47 (2013) 55
of a judicial proceeding; and (3) the accused lawyer’s con-
duct did or could have had a prejudicial effect upon the
administration of justice. See In re Kluge, 335 Or 326, 345,
66 P3d 492 (2003) (so stating for identically worded former
DR 1-102(A)(4)). There are two pertinent aspects to the
“administration” of justice: “1) The procedural functioning of
the proceeding; and 2) the substantive interest of a party in
the proceeding.” In re Haws, 310 Or 741, 747, 801 P2d 818
(1990). “A lawyer’s conduct could have a prejudicial effect
on either component or both.” Id. To prove prejudice to the
administration of justice, the Bar must show that an
attorney’s conduct:
“[H]armed [or had the potential to harm] the procedural
functioning of the judicial system, either by disrupting or
improperly influencing the court’s decision-making process
or by creating unnecessary work or imposing a substantial
burden on the court or the opposing party.”
Lawrence, 350 Or at 487. Finally, prejudice to the admin-
istration of justice “may arise from several acts that cause
some harm or a single act that causes substantial harm to
the administration of justice.” Kluge, 335 Or at 345.
With that understanding, we turn to the accused’s
argument that the Bar failed to prove that his conduct
prejudiced the administration of justice. Here, the accused
failed on four occasions to appear for scheduled court
hearings. Under Kluge, the question is not whether each of
those acts caused “substantial harm,” but rather whether,
taken as a whole, those acts caused “some harm.” We con-
clude that the accused’s conduct caused some harm to the
administration of justice in the Josephine County Circuit
Court. The accused’s multiple absences required court staff
to attempt to locate him, required the court to issue arrest
warrants for his clients after those clients failed to appear
for their scheduled hearings, and required the court to
schedule and conduct additional hearings. We reject the
accused’s characterization of those efforts as minimal or
merely a matter of routine. The repeated nature of the
accused’s conduct distinguishes this case from Lawrence,
where the issue was whether a single act by an attorney had
caused “substantial harm” to the procedural functioning of
56 In re Carini
the judicial system. See 350 Or at 488-89 (accused did not
cause substantial harm by causing judge to call accused
to chambers to discuss judge’s “concern” about accused’s
release of hearing transcript).
Our conclusion is not undermined by the fact that
the accused’s clients also failed to appear for the scheduled
hearings. The presiding judge testified before the trial panel
that, when an attorney appears at docket call but his or
her client fails to appear, the court generally provides the
attorney with an opportunity to produce the client before a
warrant is issued or, alternatively, to give an explanation for
the client’s absence. In some circumstances, the explanation
provided by the attorney can obviate the need for issuance of
an arrest warrant. The accused’s failure to appear deprived
the court of that possible benefit and, as explained above,
required the court to expend additional time and resources.
Similarly, despite their own failures to appear, the accused’s
clients would have benefitted from the accused’s presence
at the hearings to provide the court with some information,
however minimal, regarding the status of their cases.
We turn to the accused’s second argument that the
Bar improperly aggregated, in a single charge, conduct that
occurred in the course of multiple client representations.
That argument also is unpersuasive. As discussed, RPC
8.4(a)(4) prohibits an attorney from engaging “in conduct”
that is prejudicial to the administration of justice. Nothing
in the text of the rule limits the scope of its prohibition to
conduct occurring in the course of a single representation,
and we discern no logical support for such a limitation.
In In re Wyllie, 326 Or 447, 952 P2d 550 (1998), this court
considered, in determining that the accused had violated
former DR 1-102(a)(4), five instances where the accused had
appeared for court proceedings while intoxicated. Those
instances occurred over a three-year period. As we explained:
“The accused appeared in court on several occasions
while impaired by the use of alcohol. In each case described
above, the judge was distracted from the substance of the
proceeding by the accused’s condition. On at least two
occasions the accused’s condition resulted directly in the
need to delay the proceedings. Additionally, the accused’s
Cite as 354 Or 47 (2013) 57
impaired state during his representation of defendants in
criminal cases created a risk that those defendants would
not receive adequate assistance of counsel and that any
conviction or plea would be vulnerable to attack on appeal
or in post-conviction proceedings, potentially placing addi-
tional burdens on the courts.
“In summary, the accused engaged in repeated
instances of conduct, each of which caused some harm to the
procedural functioning of the courts. Accordingly, we con-
clude that he violated DR 1-102(A)(4).”
Id. at 453-54. Because the accused’s proposed limitation
lacks support in the text of the rule and is inconsistent with
our previous application of it, we reject his second argument
without further discussion.
Finally, we turn to the accused’s argument that the
Bar was required to prove that he intended to miss court
appearances in order to establish a violation of RPC 8.4(a)(4)
and that it failed to do so. As noted, the Bar counters that,
because RPC 8.4(a)(4) does not contain an express mental
state requirement, it was not necessary to prove that the
accused acted with a culpable mental state. As an initial mat-
ter, we decline the accused’s invitation to read into the
rule an intent element that does not appear in its text.
See Claussen, 322 Or at 482 (implicitly rejecting a similar
argument that predecessor rule, former DR 1–102(A)(4),
required proof of intent and stating that “[t]he focus
of the rule is on the effect of a lawyer’s conduct on the
administration of justice, rather than on the lawyer’s state
of mind when the conduct is undertaken”); see also In re
Marandas, 351 Or 521, 536, 270 P3d 231 (2012) (same);
In re Stauffer, 327 Or 44, 59, 956 P2d 967 (1998) (stating
that former DR 1–102(A)(4) “focuses on the effect of the
lawyer’s conduct, not on the lawyer’s intent.”).
However, that conclusion does not require us to
embrace the Bar’s assertion that RPC 8.4(a)(4) amounts
to a strict liability rule. That is, to say, consistent with the
approach we have taken in Claussen and other cases, that the
focus of the rule is on the effect of conduct, not the accused’s
state of mind when the conduct is undertaken, does not
necessarily compel the conclusion that the rule authorizes
58 In re Carini
discipline for faultless conduct. In other words, this court
was not required in Claussen or any subsequent case to
decide whether an accused must have a culpable mental
state with respect to engaging in the charged conduct itself,
apart from the effect of such conduct on the administration
of justice.
It is not necessary to resolve that issue in this case,
because (1) the accused does not assert that any particular
culpable mental state other than intent is necessary to
establish a violation of the rule; and (2) from the facts in
the record before us, we find that the accused at least acted
negligently—and did so repeatedly—in failing to appear
for the docket calls and status conference.6 In the Gales
and Lockwood matters, the accused admitted that he had
forgotten to contact the court, and he also admitted that he
had forgotten to provide the court with a number at which
to contact him. In addition, the accused knew that his
office’s phone system was not functioning properly, thereby
depriving the court of an effective means of contacting him
by phone and contributing to his failure to appear in the
Burton case. Finally, the accused negligently failed to make
arrangements to avoid the scheduling conflict between two
court appearances that led to his failure to timely appear
in the Westfall case. Because clear and convincing evidence
in the record establishes that the accused repeatedly—and
at least negligently—failed to appear, we need not decide
whether the absence of an express mental state requirement
in the text of RPC 8.4(a)(4) has the effect of imposing “strict
liability” for conduct that violates that rule. The Bar proved
by clear and convincing evidence that the accused engaged
6
We note that, in construing similarly worded rules of professional conduct,
courts in other jurisdictions have held that a violation may occur when an attorney
negligently engages in conduct that is prejudicial to the administration of justice.
See, e.g., In re Clark, 207 Ariz 414, 418, 87 P3d 827, 831 (2004) (concluding that
accused lawyer’s negligent conduct constituted conduct prejudicial to the admin-
istration of justice); Fink v. Neal¸ 328 Ark. 646, 655, 945 S.W.2d 916, 921 (1997)
(concluding that accused lawyer was subject to discipline for negligently engaging
in conduct prejudicial to the administration of justice); People v. Mills, 861 P2d 708,
711 (Colo 1993) (finding conduct prejudicial to the administration of justice when
accused lawyer, whether intentionally or negligently, improperly asserted a lien on
his client’s estate proceeds); Florida Bar v. McClure, 575 So 2d 176, 178 (Fla 1991)
(finding conduct prejudicial to the administration of justice when accused lawyer,
whether intentionally or negligently, mismanaged funds to the detriment of estate
beneficiaries).
Cite as 354 Or 47 (2013) 59
in conduct that is prejudicial to the administration of justice.
See RPC 8.4(a)(4).
IV. SANCTION
Having determined that the accused violated RPC
8.4(a)(4), we turn to the appropriate sanction. We first con-
sider the duty violated, the accused’s state of mind, and the
actual or potential injury caused by the accused’s conduct.
Kluge, 332 Or at 259; ABA Standard 3.0. We next determine
whether any aggravating or mitigating circumstances exist.
Id. Finally, we consider the appropriate sanction in light
of this court’s case law. Id. In determining the appropriate
sanction, our purpose is to protect the public and the courts
from lawyers who have not discharged properly their duties
to clients, the public, the legal system, or the profession. See
ABA Standard 1.1.
An exhaustive review of this court’s case law is not
necessary to the disposition of this case and would not benefit
the bench, bar, or public. Here, the accused violated his
duty to abide by the legal rules of procedure that affect the
administration of justice. ABA Standard 6.0. The accused’s
conduct also caused actual harm to the procedural func-
tioning of the Josephine County Circuit Court and poten-
tial harm to the accused’s clients. In light of those deter-
minations, under the applicable ABA Standards the pre-
sumptive sanction for the accused is a reprimand. See ABA
Standard 6.23.
The trial panel found as aggravating factors that
the accused had a prior history of discipline, had substantial
experience in the practice of law, and had not demonstrated
remorse for his conduct, see ABA Standard 9.22(c), (g), (i).
We agree. It bears particular emphasis that the accused
has a prior disciplinary history involving the same rule;
specifically, he has previously violated RPC 8.4(a)(4) by fail-
ing to appear for a scheduled trial. ABA Standard 9.22(a).
The misconduct at issue in this proceeding occurred after
the misconduct at issue in Carini I, and some of it occurred
while the accused was on probation for the prior violations.
In Carini I, the trial panel made the following statement in
its written opinion:
60 In re Carini
“[T]he trial panel admonishes the accused to regard the pro-
bation as a final opportunity, and specifically advises any
future [trial] panel evaluating the conduct of the accused
that it should regard the rules violations found in this case
to be serious.”
The accused’s prior disciplinary record weighs in favor of
imposing a greater-than-presumptive sanction. In re Cohen,
330 Or 489, 506, 8 P3d 952 (2000); see also In re Jones, 326
Or 195, 200, 951 P2d 149 (1997) (imposition of sanction for
similar prior conduct before accused lawyer engaged in con-
duct at issue is significant aggravating factor).
With regard to mitigating factors, we find that the
accused did not have a dishonest motive in failing to appear
and in failing to ensure that the court could reach him by
telephone, and that the accused cooperated with the disci-
plinary proceedings. ABA Standard 9.32(b), (e).
In light of the totality of circumstances, and with
particular emphasis on the fact that the accused has pre-
viously been disciplined for violating the same rule at issue
in these proceedings, we conclude that a 30-day suspension
is appropriate. Cf. In re Chase, 339 Or 452, 461, 121 P3d 1160
(2005) (30-day suspension appropriate for repeated conduct
violating a single disciplinary rule where both aggravating
and mitigating factors are found).
The accused is suspended from the practice of law
for 30 days, commencing 60 days from the date of filing of
this decision.