In re Munn ( 2024 )

No. 26 July 25, 2024 589
IN THE SUPREME COURT OF THE
STATE OF OREGON
In re: Complaint as to the Conduct of
JASON P. MUNN
OSB No. 061674
Respondent.
(OSB 2139, 2168, 2238) (SC S070455)
En Banc
On review of the decision of a trial panel of the Disciplinary
Board.
Argued and submitted May 9, 2024.
Jason P. Munn, Redmond, argued the cause and filed the
brief for respondent pro se.
Susan R. Cournoyer, Assistant Disciplinary Counsel,
Oregon State Bar, Tigard, argued the cause and filed the
brief for the Oregon State Bar.
PER CURIAM
Respondent is suspended from the practice of law for a
period of 24 months, effective 60 days from the filing of this
decision.
590 In re Munn
Cite as 372 Or 589 (2024) 591
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar alleged that respondent engaged in misconduct
amounting to four violations of Rule of Professional Conduct
(RPC) 1.1 (failure to provide competent representation); two
violations of RPC 1.3 (neglect of a legal matter); three viola-
tions of RPC 1.4(b) (failure to explain matter to the extent
reasonably necessary to permit client to make an informed
decision); and one violation of RPC 8.1(a)(2) (knowing fail-
ure to respond to lawful demand for information from disci-
plinary authority). A majority of the trial panel concluded that
respondent had committed those 10 violations and imposed a
24-month suspension; a dissenting panel member disagreed
with one aspect of the majority’s analysis under the rules
and would have imposed a 12-month suspension. Respondent
seeks review as to both the violations and the sanction.
The Bar brought this case based on allegations that
respondent, a criminal defense lawyer, had not been review-
ing discovery before resolving his client’s cases. Relying on
In re Bettis, 342 Or 232, 240, 149 P3d 1194 (2006), the Bar
contends that a criminal defense lawyer’s failure to review
available discovery before resolving a case is a categorical
violation of RPC 1.1’s duty of competence. As we will explain,
we decline to take a categorical approach to what constitutes
a violation of RPC 1.1’s duty of competence; that is a fact-
specific inquiry that depends on the circumstances. However,
reviewing this matter de novo,1 we conclude that respondent
violated all four rules, resulting in 10 violations, as alleged,
and we suspend him from the practice of law for 24 months.
I. BACKGROUND
On review in this court, respondent contends that
the Bar failed to prove the alleged violations by clear and
convincing evidence for two reasons. First, he contends
1
We review lawyer disciplinary matters de novo. Bar Rule of Procedure (BR)
10.6 (stating that the court “shall consider each matter de novo upon the record
and may adopt, modify or reject the decision of the trial panel in whole or in part
and thereupon enter an appropriate order.”) On de novo review, this court sits
as factfinder based on the record developed by the trial panel; that record must
demonstrate that the Bar has proved each violation by clear and convincing evi-
dence. BR 5.2. That means that the truth of the asserted facts must be “highly
probable.” In re Claussen, 331 Or 252, 260, 14 P3d 586 (2000).
592 In re Munn
that the Bar’s case rests entirely on a Bar grievance filed
by a deputy district attorney, with no evidence presented
from his former clients. Second, he claims that records,
purporting to show that he had not reviewed discovery in
many cases, were introduced with “no proper foundation.”
At oral argument in this court, respondent also explained
that he often resolved cases quickly based on his client’s
instructions, and he contended that doing so did not violate
the Rules of Professional Conduct, even if he did so without
reviewing all the discovery materials. Respondent argues,
for example, that if a client wanted to accept an early plea
offer that would result in probation and release from cus-
tody, carrying out those instructions was appropriate even
if respondent had not reviewed the available discovery. As
to the sanction, respondent maintains that the trial panel
erred in failing to consider certain mitigating factors.
As we will explain, we reject respondent’s conten-
tions and agree that a 24-month suspension is appropriate in
this case. We begin with the facts established in the record.
A. Respondent’s Representation of Indigent Criminal
Defendants
Respondent has been a member of the Bar since
2006. Between 2006 and 2017, he worked at the Malheur
County District Attorney’s Office, where he was eventually
promoted to chief deputy district attorney. He then left that
office to work as a public defender under contract with a con-
sortium, the 22nd Circuit Defenders (“the consortium”). The
consortium contracted with Oregon Public Defense Services
(OPDS)2 to represent indigent clients in criminal and juve-
nile matters in Jefferson and Crook counties. Respondent
worked with the consortium from 2017 until approximately
June 2020.
B. Grievances Filed with the Bar and Other Purported
Misconduct
In June 2020, while respondent was under contract
with the consortium, the Chief Deputy District Attorney
for Jefferson County, Foster, filed a grievance with the Bar,
claiming that respondent had not accessed discovery in 96
2
OPDS now is known as the Oregon Public Defense Commission.
Cite as 372 Or 589 (2024) 593
cases in which his clients had accepted plea offers. Some
of those plea agreements resulted in significant prison sen-
tences. Foster’s grievance was based on information that she
had retrieved from her office’s electronic case management
system, called “Prosecutor by Karpel” (Karpel). Although
Foster had identified 96 potentially problematic cases, her
grievance focused on 37 specific cases in which she asserted
that respondent had either never requested discovery, had
not accessed any discovery, or had accessed only very lim-
ited discovery.
Foster’s grievance indicated that, in separate
cases involving three of respondent’s clients—Provencher,
Williams (two cases), and Rivers—respondent either did not
review discovery at all or did not review material parts of
the available discovery before those clients accepted plea
offers resulting in lengthy prison sentences.3 In addition,
Foster’s grievance explained that respondent had delayed
more than three weeks before filing what he had been told
would be an unopposed motion to determine whether one
client (Sorensen) was mentally fit to proceed, leaving her in
jail without treatment; he also had failed to take any action
to arrange for housing or mental health treatment needed
to facilitate release and resolution of the case. Foster later
submitted additional corroborating information to the Bar,
which included screenshots from Karpel showing that, in
certain cases, discovery had been sent by the prosecutor’s
office, but respondent had accessed it only in part or not at
all.
Foster also told an administrator of the consor-
tium, Kimble, that it appeared that respondent had not been
reviewing discovery. Kimble terminated respondent from
the defense consortium and notified OPDS. OPDS, in turn,
suspended respondent from handling public defense cases,
and its General Counsel, Deitrick, filed his own Bar griev-
ance regarding respondent’s conduct.
In addition to the grievances filed by Foster and
Deitrick, two of respondent’s former clients filed griev-
ances with the Bar. One former client, Arthur, alleged that
3
We set out some additional detail respecting the individual client matters
later in this opinion.
594 In re Munn
respondent had not adequately represented him in connection
with a no-contest plea. The Bar’s investigation determined
that respondent had not reviewed any discovery—which had
included Arthur’s lengthy criminal record—before Arthur
accepted the no-contest plea, which included a contingent
six-year prison sentence if probation were revoked.
Another former client, Hooper, reported to the Bar
that respondent had mishandled an evidentiary hearing. In
Hooper’s matter, during a three-month period after remand
from the Court of Appeals, respondent had not prepared or
acquainted himself with the evidentiary issue on remand,
had not obtained or reviewed the evidence at issue, and
had not obtained a supplemental transcript prepared by
appellate counsel. Additionally, Hooper’s appellate counsel,
Montague, had expressed concerns to respondent before the
evidentiary hearing that respondent was not communicat-
ing with Hooper, and, during the hearing, Hooper repeatedly
tried to raise concerns about the transcript that the par-
ticipants were using. The trial court ultimately concluded
that the challenged evidence had been properly received,
reinstated Hooper’s convictions, and sentenced him to 90
months in prison. Montague later complained to Deitrick at
OPDS regarding respondent’s handling of the case.
C. The Bar’s Investigation and Requests for Information
In early November 2020, the Bar began investigat-
ing Foster’s grievance.
As part of that investigation, the Bar’s Disciplinary Counsel’s
Office (DCO) sent respondent a letter seeking information
regarding his representation of two clients—Sorensen and
one other client—and asked him to “respond to the allega-
tion that you did not review all of the discovery available”
in each of the 37 cases identified in Foster’s grievance. DCO
granted respondent two extensions of time and sent a sec-
ond request in late December.
Respondent provided a partial response at the end
of December 2020, stating that “[d]iscovery materials were
reviewed,” but he did not respond to DCO’s inquiries about
specific cases. In January 2021, DCO sent another inquiry,
again asking respondent if he had reviewed discovery
Cite as 372 Or 589 (2024) 595
materials in each of the 37 specific cases identified by Foster.
Shortly thereafter, respondent provided a similar general
response. In that response, respondent no longer claimed
that “[d]iscovery materials were reviewed.” Instead, he stated
that “I always felt, in each case, I had sufficient knowledge of
the facts to properly advise and counsel all former clients in
the pursuit of their goals.” In March, the Bar sent respondent
another information request, this time asking respondent to
explain how he had obtained discovery in the 37 specified
cases. Respondent did not respond to that request.
Due to respondent’s incomplete responses, DCO
filed a petition for administrative suspension under Bar
Rule of Procedure (BR) 7.1. Respondent did not respond to
that petition, and the Bar’s Adjudicator suspended him in
April 2021. The Bar later filed its formal complaint (dis-
cussed below) in September 2021. In December 2021, respon-
dent finally provided specific responses to DCO’s questions
about whether he had reviewed discovery materials in the
37 cases. As to most of those cases, respondent stated that
he had reviewed the affidavit of probable cause because cli-
ent “wished to enter a plea.” Those affidavits were available
in the trial court’s electronic file; reviewing them did not
require an attorney to access discovery through the Karpel
system.
D. The Bar’s Complaint
In September 2021, the Bar filed its formal com-
plaint,4 which set out five “Causes of Complaint” that
alleged multiple violations of four separate rules relating to
respondent’s representation of six named clients—Arthur,
Hooper, Sorensen, Provencher, Williams, and Rivers. The
complaint further described respondent’s failure to review
available discovery as to “numerous” unnamed other clients
whom respondent represented in criminal cases and alleged
that respondent had knowingly failed to respond to DCO’s
requests for information.
More specifically, the complaint alleged four viola-
tions of RPC 1.1 (failure to provide competent representation)
4
The Bar later filed an amended complaint; all references hereafter to the
Bar’s complaint are to its amended complaint.
596 In re Munn
in connection with all six of the named clients, specifically
focusing on the failure to review discovery, with additional,
related allegations as to Hooper (failure to adequately pre-
pare for the evidentiary hearing on remand) and Sorensen
(failure to take actions to facilitate pretrial release and res-
olution). The complaint further alleged that respondent had
violated RPC 1.3 (neglect of a legal matter) in connection
with Hooper and Sorensen. And the complaint alleged three
violations of RPC 1.4(b) (failing to adequately explain mat-
ters to the extent reasonably necessary to permit client to
make an informed decision) in connection with five of the six
named clients (all except Hooper), contending that respon-
dent had violated that rule when he advised the clients
regarding plea agreements without having reviewed signifi-
cant available discovery. Finally, the complaint alleged that
respondent had violated RPC 8.1(a)(2) when he knowingly
failed to respond to the Bar’s request for information in con-
nection with the Bar’s investigation.
In respondent’s answer to the complaint, he stated
that he had “felt at the time” that he had sufficient knowl-
edge of the facts of each case in which he represented an
indigent client. He indicated that “many times” he was able
to review discovery materials without downloading them,
and that he was provided with probable cause affidavits
“which often mirrored police reports.” He further stated
that he “spent time” with the clients that he represented
and “answered any and all questions” that they had.
Respondent admitted, however, that he “could have
been more diligent” in requesting and documenting discov-
ery materials, and he indicated that he was experiencing
“many personal and family hardships” as well as “profes-
sional hardships” at the time. He indicated that he was
“severely unsatisfied” with his role with the consortium,
though he was “not attempting to deny responsibility or shift
blame.” He further indicated that he “accept[ed] responsibil-
ity for any mistakes and errors” that he had made while
practicing law in Jefferson County. Finally, he apologized for
his “delayed response” to the Bar’s inquiry and complaint,
stating that it was not his “intent to be uncooperative” but
Cite as 372 Or 589 (2024) 597
that he was “still under a lot of stress” and needed time to
address his physical and mental health during that time.
E. Trial Panel Proceedings
At the trial panel hearing, the Bar presented testi-
mony from Foster (from the District Attorney’s Office) and
Deitrick (from OPDS), both of whom had filed grievances
with the Bar; Kimble (from the consortium); and Montague
(the appellate attorney for Hooper). The Bar did not, how-
ever, present testimony from the two former clients who
had filed grievances (Hooper and Arthur) or from any of the
other former clients named in its complaint. Respondent tes-
tified on his own behalf.
Foster testified that she had become concerned
about respondent’s failure to access discovery made avail-
able to criminal defense lawyers through Karpel. She
explained that, when a defense lawyer requests discov-
ery, the DA’s office sends them an email with a link that
allows the lawyer to access and download discovery through
Karpel, which records the date and time of access when the
lawyer clicks the link. After reviewing the Karpel access
records, Foster ultimately determined that respondent had
not accessed all the available discovery in the 96 cases listed
in her grievance. Respondent did not object during the trial
panel proceedings to Foster’s testimony regarding either
Karpel generally or what Foster had learned by accessing it.
Kimble testified that, upon learning from Foster
about respondent’s failure to review discovery, she con-
fronted respondent, who responded that he “goes off of what
his clients tell him” and that he only looked at discovery if he
was going to trial. Kimble testified that she then terminated
respondent from the consortium and reported the issue to
OPDS. Kimble further testified that reviewing only the
probable cause affidavit is not sufficient, because it typically
will not contain any witness contact information, criminal
history, or mitigating information, and thus cannot be used
to inform plea negotiations. Kimble also confirmed Foster’s
testimony that the Karpel system shows whether and when
a defense lawyer accesses discovery materials even if the
lawyer reviews them online without downloading them.
598 In re Munn
Deitrick testified that, after learning about Foster’s
assessment based on Karpel records, OPDS suspended
respondent’s authority to handle public defense cases, and
it hired the Oregon Justice Resource Center and the Oregon
Innocence Project to review criminal cases that had been
assigned to respondent to determine whether any of his for-
mer clients had been harmed.
The Bar presented testimony from two lawyers
who worked for the Oregon Innocence Project’s Wrongful
Conviction Review Program (WCRP)—Wax (the WCRP
Legal Director) and Powers. Both testified that, as part of
the WCRP audit, they asked respondent for permission to
access his files for the affected clients so that they could
review them but did not receive a response for many months.
After Powers drove out to meet respondent in person, respon-
dent finally provided her with both his electronic and paper
records. The paper records were in two plastic bins, a trash
bag, and a loose-leaf stack. Staff at WCRP, thereafter, spent
weeks organizing those papers. Wax testified that the “over-
whelming majority” of respondent’s client files contained no
discovery.
Wax had previously worked as a New York state
public defender and as a federal public defender in Oregon
during his career. The Bar asked Wax about the ABA
Criminal Justice Standards - Defense Function, 4-4.1 (4th ed
2017), which describes the duty of defense counsel to inves-
tigate and provides:
“(a) Defense counsel has a duty to investigate in all
cases, and to determine whether there is a sufficient fac-
tual basis for criminal charges.
“(b) The duty to investigate is not terminated by fac-
tors such as the apparent force of the prosecution’s evi-
dence, a client’s alleged admissions to others of facts sug-
gesting guilt, the client’s expressed desire to plead guilty
or that there should be no investigation, or statements to
defense counsel supporting guilt.”
Wax explained that, in his opinion, these standards
generally required defense counsel to “test the case” pre-
sented by the prosecutor. That duty has two components:
understanding the information that the state has against
Cite as 372 Or 589 (2024) 599
the client, and conducting a sufficient independent investiga-
tion into the facts to determine whether the state’s informa-
tion is accurate. Wax explained that the second component
includes discussing the case with the client, interviewing
witnesses, and exploring mitigating information. Mitigating
information, Wax explained, is any evidence that might lead
the prosecutor to make a better plea offer, including errors
in the probable cause affidavit or the availability of a motion
to suppress evidence.
Wax further testified that, in his opinion, a defense
lawyer’s duty to “test the case” is not overcome by a cli-
ent’s desire to plead guilty. He explained that clients rarely
understand the difference between “moral guilt” and “legal
guilt,” and that feeling guilty is not the same as having
committed the charged offense. Thus, clients must rely on
defense counsel to explain the law applicable to their situa-
tion. Additionally, defense attorneys are obligated to pursue
any mitigating information that could result in a better plea
offer. When asked whether it would be sufficient to review
only the probable cause affidavit from law enforcement, Wax
replied “No, absolutely not.”
Respondent testified that he had sometimes
reviewed discovery online without downloading the materi-
als and suggested that Karpel documented only when dis-
covery materials were downloaded. He further testified that
he thought that reviewing the probable cause affidavit was
usually sufficient to advise his clients. During closing, he
added that he was being “sarcastic” when he told Kimble
that he looked at discovery only if he was going to trial.
Respondent did not call any other witnesses.
A majority of the trial panel concluded that respon-
dent had committed the 10 violations alleged and imposed
a 24-month suspension. A dissenting panel member would
have imposed a 12-month suspension.5
5
The dissent would also have concluded that, because Wax had been a fed-
eral public defender, his opinions regarding the professional standards for public
defenders in Oregon state courts should be given less weight. We note, however,
that most of Wax’s opinions were corroborated by Kimble, an administrator of
the consortium of criminal defense lawyers practicing in state courts in Jefferson
and Crook counties.
600 In re Munn
II. ANALYSIS
As noted above, respondent contends on review that
the Bar failed to prove the allegations by clear and convinc-
ing evidence. Respondent makes three arguments: (1) the
Karpel evidence was received without a proper foundation;
(2) the Bar’s allegations rested entirely on Foster’s grievance;
and (3) by following his client’s instructions to resolve cases
quickly, respondent did not violate the Rules of Professional
Conduct. We reject all three arguments.
Because respondent did not object to the Karpel
evidence before the trial panel, his foundation argument is
unpreserved. See generally In re Sanai, 360 Or 497, 525, 383
P3d 821 (2016) (concluding that issues not preserved before
trial panel in lawyer disciplinary proceedings cannot be
raised for the first time on review). At no point in the pro-
ceedings before the trial panel did respondent raise a foun-
dation objection or otherwise suggest that the evidence from
Karpel was inadmissible or unreliable. If he had, the record
might have developed differently. See Peeples v. Lampert, 345
Or 209, 219-20, 191 P3d 637 (2008) (preservation “ensures
that the positions of the parties are presented clearly to the
initial tribunal” so that the opposing party is not “denied
opportunities to meet the argument” (internal quotation
marks omitted)).
The foundation argument was central to respon-
dent’s contentions in this court, so we will add that, in addi-
tion to being unpreserved, we see no basis for excluding that
evidence for lack of foundation. The Oregon Evidence Code
does not apply to Bar disciplinary proceedings. In re Ard,
369 Or 180, 189, 501 P3d 1036 (2021). Trial panels in Bar
disciplinary proceedings “may admit and give effect to evi-
dence that possesses probative value commonly accepted by
reasonably prudent persons in the conduct of their affairs.”
BR 5.1(a). The testimony from Foster and Kimble that pros-
ecutors and defense attorneys in Jefferson County regularly
rely on Karpel supports the conclusion that such evidence is
“commonly accepted” by reasonably prudent lawyers prac-
ticing criminal law in that county. That testimony was suf-
ficient to make the Karpel evidence admissible in this disci-
plinary proceeding.
Cite as 372 Or 589 (2024) 601
We also reject respondent’s suggestion that the
Bar’s case against him rests entirely on Foster’s grievance.
That grievance—along with the grievances filed by Deitrick,
Hooper, and Arthur—certainly may have initiated the Bar’s
disciplinary investigation, but the presentation to the trial
panel ultimately rested on the proffered testimony and
exhibits that the trial panel received. As we will explain,
reviewing that evidence de novo, we agree with the trial
panel that the Bar proved by clear and convincing evidence
that respondent committed all the violations alleged in the
Bar’s complaint.
We turn to the specific violations alleged by the Bar.
A. RPC 1.1: Failure to Provide Competent Representation
The Bar alleged four violations of RPC 1.1, related
to respondent’s representation of the six clients named in
the complaint—Arthur, Hooper, Sorensen, Provencher,
Williams, and Rivers—all of which the trial panel concluded
had been proved by clear and convincing evidence.6 RPC 1.1
provides:
“A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowl-
edge, skill, thoroughness and preparation reasonably nec-
essary for the representation.”
This court has stated that whether a lawyer has failed to
provide competent representation is a fact-specific inquiry
that focuses on the lawyer’s conduct without regard to their
mental state or the results achieved for their client. In re
Magar, 335 Or 306, 319-20, 66 P3d 1014 (2003). Our inquiry
here, therefore, focuses on the reasonableness of respon-
dent’s conduct. See id. at 320 (so stating).
6
The second cause of the Bar’s complaint—entitled “numerous criminal
defense clients”—alleged single violations of RPC 1.1 (competence) and RPC
1.4(b) (failure to adequately explain) in connection with Provencher, Williams,
Rivers, and 94 unnamed clients, for which respondent allegedly reviewed only
limited discovery, including 37 clients for which he allegedly reviewed no or
substantially no discovery. The Bar did not present specific evidence about the
facts and circumstances of those clients’ cases to the trial panel. For reasons
discussed below, we conclude that there is clear and convincing evidence proving
the alleged violations with regard to the named clients, making it unnecessary
to consider the allegations regarding unnamed clients.
602 In re Munn
As discussed above, the Bar’s four RPC 1.1 alle-
gations focus on respondent’s failure to review discovery
when representing six different clients, though the Bar only
charged four violations: one each as to Arthur, Hooper, and
Sorensen, and a fourth violation combining the allegations
regarding Provencher, Williams, and Rivers. The Bar con-
tends that a criminal defense lawyer’s failure to review dis-
covery before the case is resolved categorically violates RPC
1.1, citing Bettis, 342 Or at 240.
Bettis involved a lawyer who had not reviewed
any discovery or conducted any legal or factual investiga-
tion before seeking a jury trial waiver for a client facing
charges for rape and other sexual offenses. 342 Or at 240.
We concluded that the lawyer’s failure to review any dis-
covery and relevant case information before seeking a jury
trial waiver from the client had violated the duty to provide
competent representation, under former Disciplinary Rule
(DR) 6-101(A), the predecessor to RPC 1.1. Id. We explained
that “no manner of experience or intuition permits a law-
yer to seek his or her client’s waiver of a fundamental right
without first understanding the legal and factual issues in a
case.” Id.To the extent that the Bar reads Bettis to establish
a categorical rule that a criminal defense lawyer’s failure to
review all available discovery always amounts to a violation
of the lawyer’s duty of competence, that reading is not quite
correct. Determining whether a lawyer has failed to provide
competent representation involves a “fact-specific inquiry.”
In re Eadie, 333 Or 42, 60, 36 P3d 468 (2001). For example,
a lack of competence may be established when the lawyer
lacks basic knowledge or fails to prepare, or the conduct
involves a combination of those factors. See In re Gastineau,
317 Or 545, 553-54, 857 P2d 136 (1993) (concluding that
lawyer violated the duty to provide competent representa-
tion by failing to review documents prepared by legal staff
and by attempting to file those documents with incorrect
filing fees).
Our fact-specific inquiry in this case leads us to
conclude that the Bar has met its burden to establish, by
clear and convincing evidence, each of the allegations that
Cite as 372 Or 589 (2024) 603
respondent did not comply with his obligation under RPC
1.1 to provide competent representation. Beginning with the
Sorensen matter, respondent conceded that he had reviewed
only the probable cause affidavit before speaking with
Sorensen and attempting to resolve her case via plea. In
the circumstances of that legal representation, respondent’s
limited review violated the duty of competence in violation
of RPC 1.1. And as explained more fully below in connection
with the RPC 1.3 violation, respondent also delayed filing
an unopposed motion to determine fitness to proceed, leav-
ing Sorensen in jail for weeks without a mental health eval-
uation or treatment, and he did not take the actions needed
to facilitate a mental health court resolution of her case.
We draw a similar conclusion as to the Arthur mat-
ter, which also involved a concession from respondent, in
his response to DCO, that he had reviewed only the prob-
able cause affidavit and otherwise spoken only to his cli-
ent, who ultimately accepted a plea that included his agree-
ment to a 72-month sentence upon revocation of probation.7
There, respondent claimed that he expended minimal effort
because Arthur had wished to enter a plea as soon as pos-
sible, to facilitate a quick release from custody. However,
the Bar showed that respondent—in addition to failing to
review discovery in Karpel8 —also opted not to interview
known witnesses or to confirm with Arthur’s probation offi-
cer regarding claims that Arthur had made about possible
credit for time served. Collectively, those failures violated
RPC 1.1.
The combined allegation involving Provencher,
Williams, and Rivers also involved plea deals accepted
before respondent had reviewed all the available discovery.
7
Powers testified that Arthur’s probation later was revoked, and he was fac-
ing a 72-month sentence based on the plea agreement, but Powers intervened,
filing a motion to set aside the judgment based, in part, on respondent’s failure
to review discovery. The trial court ultimately granted that motion, set aside his
felony conviction, and entered judgment convicting Arthur of a misdemeanor.
8
Respondent also claimed before the trial panel that he had quickly reviewed
the police report through Karpel on his iPhone, but the Karpel records reflected
that respondent neither requested nor accessed discovery—and, as explained
earlier, we are persuaded by the Bar’s evidence that Karpel recorded whether a
defense counsel accessed the discovery even if the lawyer did not download the
materials.
604 In re Munn
We address all three cases, though we note that a violation
in any of the cases would be sufficient to establish the viola-
tion alleged by the Bar.
Provencher accepted a felony plea that resulted in a
48-month prison sentence. Foster testified that none of the
photographs, audio files, or police reports were ever accessed
in Karpel, and Powers had located no paper or electronic
documents related to that case in respondent’s files.
Respondent testified that Provencher had been
remorseful and wanted to resolve the case as quickly as pos-
sible. It is true that criminal defense lawyers serve as agents
of their clients, and it is the client, and the client alone, who
can decide to pursue trial or accept a plea. See RPC 1.2(a)
(“a lawyer shall abide by a client’s decision concerning the
objectives of representation * * * [including the] plea to be
entered” in a criminal matter). However, even though that
ultimate decision falls to the client, the role of counsel is to
provide competent advice and counsel to the client to enable
them to make a fully informed decision. Determining what
information is necessary for an attorney to provide compe-
tent advice and counsel depends on the context and may
vary depending on the nature of the case, the nature and
complexity of the charges, whether other charges are, or are
about to be, brought in the current jurisdiction or elsewhere,
the potential sentence exposure, the client’s background
and criminal history, and the consequences of entering a
plea. For some matters, the individual context may require
that, to provide competent advice to the client regarding a
decision to pursue trial or accept a plea offer, defense coun-
sel may need to test the case, pursue investigation, explore
mitigation evidence, and examine possible legal challenges.
The specifics are context-dependent, not categorical. We
conclude that RPC 1.1’s duty of competence required respon-
dent to do more before advising Provencher about a plea
that resulted in a 48-month prison sentence.
Regarding the two Williams felony cases, Foster
testified that an audio file was never downloaded in the first
case, and no discovery was ever requested in the second
case but that the two recordings that were sent had never
Cite as 372 Or 589 (2024) 605
been accessed.9 Respondent testified that he reviewed police
reports in both cases, but Powers had located only minimal
discovery as to Williams—about 20 pages but no recordings
or audio files—in the client files that respondent had turned
over to her. Thus, the evidence suggests that respondent
likely reviewed at least some discovery, consisting of police
reports, although it is unclear if those reports related to only
the first case or to both cases. Although only reviewing police
reports and talking to the client might amount to competent
representation in some cases, the Williams matters resulted
in significant prison sentences—13 months and 25 months,
respectively—and there is no evidence in the record that
respondent investigated any mitigating factors or consid-
ered whether any legal challenges were available. On this
record, it seems likely that respondent’s failure to review
all the available discovery in the Williams cases violated
RPC 1.1’s duty of competent representation. But we need not
reach that conclusion as to Williams, because we concluded
that respondent violated RPC 1.1 in the Provencher case
(discussed above), and we also make the same conclusion in
the Rivers case (discussed next).
Rivers entered no-contest pleas to charges of first-
degree burglary and other felonies, resulting in a 50-month
prison sentence. In that matter, respondent had requested
discovery, but Karpel showed that he never accessed that
discovery, which had included 152 pages of documents and
recordings of statements from Rivers and the alleged vic-
tims. Powers testified that respondent’s files for Rivers con-
sisted of a single document—the plea offer. Respondent’s
failure to review any discovery before advising his client to
accept a plea offer carrying a 50-month prison sentence vio-
lated RPC 1.1.
The Bar’s final allegation under RPC 1.1 involved
respondent’s representation of Hooper at an evidentiary
hearing following appellate remand; unlike the other cases,
the Hooper case did not involve failure to review discovery
(or to review substantial amounts of discovery) prior to entry
of a plea. We discuss the Hooper matter in greater detail
9
Foster did not explain what was on those recordings or how they may have
been relevant to the Williams cases.
606 In re Munn
below, in relation to the Bar’s neglect allegation under RPC
1.3. 372 Or at 608-09. As will be seen from that discussion,
we conclude that respondent’s conduct in that matter—in
addition to violating RPC 1.3—also violated his duty to pro-
vide competent representation under RPC 1.1.10
For the foregoing reasons, we conclude that the Bar
proved by clear and convincing evidence that respondent’s
conduct violated RPC 1.1 as to each of the four violations
alleged in its complaint.
B. RPC 1.3: Neglect of a Legal Matter
The Bar also alleged that respondent had commit-
ted two violations of RPC 1.3 in connection with his rep-
resentation of clients Sorensen and Hooper; the trial panel
concluded that the Bar had proved by clear and convincing
evidence that respondent had committed the violations as
alleged. Before this court, the Bar contends that respondent
engaged in a pattern of neglect as to Sorensen and neglect
of an urgent matter as to Hooper.
RPC 1.3 provides that “[a] lawyer shall not neglect
a legal matter entrusted to the lawyer.” Neglect is a partic-
ular type of competence violation that occurs when a law-
yer unreasonably fails to act to protect the client’s interest
under circumstances that call for action. Magar, 335 Or at
320. Neglect “is not interchangeable with negligence[.]” Id.
at 320-21. The neglect inquiry “is not dependent on the out-
come of the matter at issue.” In re Knappenberger, 337 Or
15, 23, 90 P3d 614 (2004). Determining whether a lawyer
violated RPC 1.3 “is a fact-specific inquiry in which, using
an objective standard, we assess whether the lawyer acted
neglectfully.” Id. In making that determination, we view
“the lawyer’s conduct along a temporal continuum,” and con-
sider whether that lawyer engaged in “a course of neglectful
conduct that reflects a failure to act or failure to act dili-
gently.” Id. (internal quotation marks omitted). “An isolated
10
We have recognized that multiple violations can arise from the same or
similar conduct. See In re Paulson, 346 Or 676, 695-97, 216 P3d 859 (2009), adh’d
to as modified on recons, 347 Or 529, 225 P3d 41 (2010) (lawyer who represented
clients during suspension violated both RPC 1.16(a)(1) (failure to withdraw from
representation) and RPC 5.5 (unauthorized practice of law)); In re Long, 368 Or
452, 463-64, 491 P3d 783 (2021) (“earned on receipt” fees violated both RPC 1.5(a)
(charging excessive fee) and RPC 1.16(d) (failing to refund fees)).
Cite as 372 Or 589 (2024) 607
incident of negligent conduct does not establish neglect;
rather, unethical neglect exists when there is a course of
neglectful conduct in the representation of a client.” In re
Snyder, 348 Or 307, 316, 232 P3d 952 (2010); see also In re
Jackson, 347 Or 426, 435-36, 223 P3d 387 (2009) (violation
when lawyer failed to prepare for a settlement conference,
failed to submit available dates to an arbitrator, and then
failed to respond to two voicemail messages over a six-month
period). But this court has also concluded that, if the mat-
ter is urgent, even a brief period of neglect may violate the
rule. See In re Meyer (II), 328 Or 220, 223-24, 970 P2d 647(1999) (two-month period of neglect was sufficient to estab-
lish a violation, when response to a temporary support order
had been due within 10 days, but lawyer delayed over two
months in responding, resulting harm to his client).
As to the Sorensen matter, we conclude that respon-
dent engaged in a pattern of neglect. The record shows that,
when Sorensen was arrested, she appeared to be delu-
sional, and Foster—who was the prosecutor in that case—
therefore told respondent that she would not oppose a motion
to determine fitness to proceed and respondent represented
to the trial court that he intended to file the motion. At that
juncture, even if respondent was unsure whether Sorensen
was unable to aid and assist in her defense, the fitness
evaluation could have been used for mitigation purposes.
Although respondent eventually did file such a motion, it
was not filed until almost four weeks after his appointment
and 13 days after he told the court he planned to file the
motion, leaving Sorensen in jail during that time without
any mental health evaluation or treatment. Foster testified
that a diagnosis from the state hospital was necessary for
Sorensen to participate in mental health court under the
plea agreement that Sorensen wanted to take, so the delay
in filing the motion also delayed the resolution of the case.
Foster further testified that respondent did not review any
discovery in Sorensen’s case for the entire seven months the
case was pending. The case was ultimately resolved with a
plea and a mental health court probation.
Before the trial panel, respondent countered that he
did not think that Sorensen had any mental illness and that
608 In re Munn
he could not recall any agreement to pursue mental health
court.11 We conclude that the combination of respondent’s
delay in filing a fitness-to-proceed motion that the prosecutor
would not oppose, his failure to take actions that were needed
to pursue an available mental health court option during
the seven months the case was pending, and his failure to
review the available discovery during that period, amounted
to clear and convincing evidence of a course of neglectful con-
duct over an extended period in the Sorensen matter.
As to the Hooper matter, as noted above, respondent
represented Hooper for purposes of an evidentiary hearing
following remand from the Court of Appeals. The hearing
on remand was to address the admissibility of certain “other
acts” evidence shown on video exhibits; the Court of Appeals
had directed the trial court to weigh the probative value of
the evidence against the risk of unfair prejudice. Respondent
had more than three months before the hearing to acquaint
himself with the issue on remand, obtain and review the evi-
dence, and obtain from Montague (Hooper’s appellate counsel)
a supplemental transcript prepared by appellate counsel that
was relevant to the issue on remand. Respondent took none of
those actions. Montague testified about the importance and
urgency of acting promptly on remand, but the transcript of
the evidentiary hearing before the trial court reveals that
respondent had not reviewed the appellate brief and was
unaware of the issues in the case; respondent also ignored his
client’s repeated attempts to interject that they were using
the wrong transcript. The trial court ultimately concluded—
in the prosecution’s favor—that the disputed evidence had
been properly admitted; it therefore reinstated Hooper’s con-
victions and then sentenced him to 90 months in prison.12
At the trial panel hearing, respondent testified that
he already had known that Hooper would not prevail at the
remand hearing, but he denied being unprepared, though he
11
Although respondent testified that he could not recall any agreement to
pursue a mental health court resolution for Sorensen’s case, we credit Foster’s
testimony about the availability of mental health court and respondent’s delay in
accessing discovery and taking the steps necessary to resolve the case through
mental health court.
12
As described earlier, Montague was sufficiently alarmed by respondent’s
mishandling of the matter on remand that she complained to OPDS.
Cite as 372 Or 589 (2024) 609
conceded that he had not reviewed the supplemental tran-
script from Montague. Respondent’s claim that he had been
adequately prepared is refuted by the transcript from the
remand hearing, which is part of the record in this case.
Given the importance of the evidentiary hearing to Hooper’s
case, and the fact that respondent had three months to pre-
pare for it, his failure to prepare amounted to neglect of a
legal matter under RPC 1.3, as alleged in the Bar’s com-
plaint. See generally Meyer, 328 Or 220 (two-month period of
neglect sufficient when case involves a discrete and urgent
issue).
In sum, we conclude that the Bar has met its bur-
den to prove its two alleged violations of RPC 1.3 by clear
and convincing evidence.
C. RPC 1.4(b): Failure to Adequately Explain
The Bar also alleged three violations of RPC 1.4(b)—
as to Arthur, Sorensen, and, as a combined allegation,
Provencher, Williams, and Rivers—and the trial panel con-
cluded that the Bar had proved those violations. On review,
the Bar contends that respondent violated RPC 1.4(b) when
he advised those five clients to accept plea offers without
reviewing material discovery.
RPC 1.4(b) requires a lawyer to “explain a matter
to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.” To
support its allegations, the Bar relies primarily on Snyder,
348 Or 307, which involved a lawyer’s failure to properly
inform a client about the risks and weaknesses in his civil
case. See also In re Gatti, 356 Or 32, 51-52, 333 P3d 994
(2014) (concluding that lawyer violated RPC 1.4(b) by fail-
ing to accurately convey information regarding how a set-
tlement would be allocated); In re Bertoni, 363 Or 614, 633,
426 P3d 614 (2018) (concluding that the lawyer had violated
RPC 1.4(b) by failing to explain to the client how work on
cases would be handled or what the client’s financial obliga-
tions would be).
As to its RPC 1.4(b) allegations, the Bar did not
present to the trial panel any evidence of the substance
of respondent’s communications to the five named clients,
610 In re Munn
and none of those clients testified. Nonetheless, the seri-
ous nature of the charges, combined with respondent’s fail-
ure to review substantially any discovery in those cases—
particularly respondent’s failure to review any discovery in
the Sorensen, Arthur, Rivers or Provencher cases—leads us
to conclude that, because respondent was so ill-prepared and
uninformed about the strength of the state’s cases, he could
not have explained matters to the extent reasonably nec-
essary to permit the client to make informed decisions. We
have already concluded that, other than the Williams cases,
respondent violated his RPC 1.1 duty of competent repre-
sentation by failing to review any available discovery before
resolving those cases by plea agreement. In this context,
those violations also constituted violations of RPC 1.4(b).
Plea agreements, by their nature, require weighing
the risks of proceeding to trial against the consequences
specified in the plea offer. Without a meaningful under-
standing of the state’s evidence, a defense lawyer may be
unable to explain those risks to their client intelligently or
adequately. Depending on a client’s wishes and other cir-
cumstances, an exhaustive review of every page of discov-
ery may not always be required to understand and explain
the risks and benefits to the “extent reasonably necessary to
permit the client to make informed decisions” about a plea
offer as required by RPC 1.4(b), but respondent’s conduct fell
far below what was reasonably required.
The record here reveals that the Arthur, Rivers,
and Provencher cases were all resolved through pleas before
respondent had reviewed any of the available discovery.
Our review of the record reveals no evidence justifying
that action. Rivers and Provencher received lengthy prison
sentences pursuant to their plea agreements, and Arthur
agreed that he would be sentenced to a lengthy term of
imprisonment upon revocation of his probation. Respondent
had seven months to review the discovery in Sorensen before
attempting to resolve that case.13 Based on respondent’s
13
In the Sorensen case, respondent attempted to have his client plead, but
the trial court refused to accept her plea without respondent having taken the
steps necessary for Sorensen to participate in mental health court. At the con-
tinued plea hearing, Foster objected because respondent had not reviewed any
discovery. The case was eventually resolved by another lawyer.
Cite as 372 Or 589 (2024) 611
failure to review any of the discovery in those cases, he did
not have enough information to adequately explain the risks,
consequences, and alternatives to those clients before they
entered pleas, resulting in three violations of RPC 1.4(b), as
alleged.
D. RPC 8.1(a)(2): Failure to Provide Requested Information
to DCO
The Bar alleged that respondent violated RPC
8.1(a)(2) by knowingly failing to respond to DCO’s requests
for information.
RPC 8.1 provides, in part:
“(a) * * * [A] lawyer in connection with a * * * disci-
plinary matter[ ] shall not:
“* * * * *
“(2) * * * knowingly fail to respond to a lawful demand
for information from [a] * * * disciplinary authority [with an
exception that does not apply here].”
That rule “requires full cooperation from a lawyer who is the
subject of a disciplinary investigation.” In re Schaffner, 325 Or
421, 425, 939 P2d 39 (1997) (emphasis in original; applying
former DR 1-103(C) (1995), the predecessor to RPC 8.1(a)(2)).14
See also In re Long, 368 Or 452, 464, 474, 491 P3d 783 (2021)
(describing a violation of RPC 8.1(a)(2) as “failing to cooper-
ate with Bar disciplinary investigation”). A lawyer’s partial
cooperation, “such as responding only when and if the mat-
ter escalates to [a formal] investigation, reduces the extent of
the violation but does not absolve a lawyer” under the rule.
Schaffner, 325 Or at 425 (citing In re Haws, 310 Or 741, 749-
51, 801 P2d 818 (1990)). See also In re Paulson, 346 Or 676,
695, 216 P3d 859 (2009), adh’d to as modified on recons, 347
Or 529, 225 P3d 41 (2010) (lawyer’s “initial failure to respond
and his later inadequate response violated RPC 8.1(a)(2)”).
As described earlier, respondent did respond to
DCO’s multiple requests for information, but only partially.
That is, he initially provided what amounted to general
14
DR 1-103(C) (1995) provided that a lawyer who is the subject of a disci-
plinary investigation “shall respond fully and truthfully to inquiries from and
comply with reasonable requests” for information by the investigating body.
612 In re Munn
denials, but he did not respond to DCO’s inquiries about
specific cases. He did not provide specific responses to the
list of 37 cases identified in DCO’s request until more than
a year after the requests, after the Bar had filed its formal
complaint. Collectively, those incomplete and inadequate
responses fell short of his obligation to respond to DCO’s
requests for information.
From the foregoing, we conclude that the Bar proved
by clear and convincing evidence that respondent violated
RPC 8.1(a)(2). Although he did not entirely fail to respond
to the Bar’s inquiries, he provided conflicting, incomplete,
and delayed responses. As in Schaffner, Paulson, and Haws,
providing a delayed response after the Bar had filed its for-
mal complaint may have reduced the extent of the violation,
but it did not absolve respondent for his failure to respond to
DCO’s specific questions.
E. Sanction
Having concluded that the Bar proved the 10 vio-
lations set out in its complaint, we proceed to consider the
appropriate sanction. In determining the appropriate sanc-
tion, we follow the framework set out in the ABA’s Standards
for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA
Standards). In re Herman, 357 Or 273, 289, 348 P3d 1125
(2015). Under that framework, we first consider three factors
that point to a preliminary determination of the appropriate
sanction: (1) the ethical duty violated; (2) the respondent’s
mental state; and (3) the potential or actual injury caused
by that violation. ABA Standard 3.0. Next, we consider any
aggravating or mitigating circumstances that are relevant
to our determination of the appropriate sanction. Herman,
357 Or at 289. Finally, we decide the appropriate sanction in
light of this court’s case law. Id.
1. Preliminary Determination
Following from our discussion above, we conclude
that respondent engaged in conduct that violated duties
owed to multiple clients to provide competent representation
and to act with diligence and promptness. ABA Standard
4.4, 4.5. He also violated the duty that he owed to the pub-
lic and to the legal profession when he failed to respond to
Cite as 372 Or 589 (2024) 613
DCO’s inquiries. See ABA Standard 5.0, 7.0; In re Kluge,
335 Or 326, 349-50, 66 P3d 492 (2003) (failure to respond to
disciplinary investigation violates duties owed to the public
and the legal profession).
As to the mental state when he engaged in the mis-
conduct at issue, we find that respondent acted knowingly
when he failed to respond to the Bar’s investigation and
when he advised multiple clients to waive their constitu-
tional right to trial and plead to criminal charges without
adequately preparing. We further conclude that respondent
acted knowingly when he failed to prepare for Hooper’s evi-
dentiary hearing on remand and in connection with his rep-
resentation of Sorensen.15
Respondent’s conduct caused actual and potential
injury to his clients, as well as to the public, the legal system,
and the profession. See In re Hostetter, 348 Or 574, 600, 238
P3d 13 (2010) (“Under the ABA Standards, injuries caused by
a lawyer’s professional misconduct may be actual or poten-
tial.”). For example, respondent’s delay in filing an undis-
puted motion to determine fitness to proceed in Sorensen’s
case left her languishing in jail for weeks without any mental
health evaluation or treatment and delayed her participation
in mental health court. His failure to prepare for Hooper’s
hearing on remand or to respond to Arthur’s urgent inquiries
regarding his plea agreement undoubtedly caused his clients
anxiety and uncertainty, see Snyder, 348 Or at 321 (noting
that “[c]lient anguish, uncertainty, anxiety, and aggravation
are actual injury under the disciplinary rules”), when, as
noted above, both clients faced the potential of lengthy prison
sentences. Additionally, respondent’s failure to respond to the
Bar caused actual injury to the public and the legal profession.
OPDS, a public agency supported by Oregon taxpayers, spent
more than $300,000 to audit respondent’s cases attempting to
identify and minimize the harm he had caused.
Respondent’s actions undermined the criminal jus-
tice system, which depends upon competent representation
15
To act “knowingly,” an attorney must “be aware of the relevant facts,” but
knowledge “does not require an attorney’s subjective awareness that [they are]
violating a rule of professional conduct.” In re Conry, 368 Or 349, 373, 491 P3d 42
(2021).
614 In re Munn
of indigent defendants, by failing to provide adequate rep-
resentation while under contract with OPDS. Although the
Bar did not charge separate violations in each of the 37
cases, we conclude as an aggravating factor that there is
sufficient evidence in the record that, by failing to review
discovery in those cases, respondent exposed those clients
to a substantial and unjustifiable risk that he missed mit-
igating evidence or available legal challenges that might
have substantially decreased or altogether avoided their
sentences.
Turning to a preliminary sanction determination,
the ABA Standards suggest that a suspension is appropri-
ate. For example, suspension is generally appropriate when
a lawyer “knowingly fails to perform services for a client” or
“engages in a pattern of neglect” that causes injury to a cli-
ent. ABA Standard 4.4. Competence violations that warrant
a suspension typically involve both knowledge regarding the
lack of competence and, as here, injury to the client. ABA
Standard 4.5. Suspension is similarly appropriate for a law-
yer who knowingly fails to follow proper procedure or rules
resulting in harm to a client or to the integrity of the legal
process. ABA Standard 5.2. Finally, suspension is appropri-
ate when a lawyer knowingly engages in conduct that is a
violation of a duty owed to the profession and causes injury
to a client, the public, or the legal system. ABA Standard
7.0.
2. Aggravating and Mitigating Factors
The trial panel identified four aggravating factors:
(1) pattern of misconduct, ABA Standard 9.22(c); (2) multiple
offenses, ABA Standard 9.22(d); (3) vulnerability of victims,
ABA Standard 9.22(h); and (4) substantial experience in the
practice of law, ABA Standard 9.22(i). Those aggravating
factors are undisputed, and we consider them as well.
The trial panel also identified two mitigating fac-
tors: (1) absence of prior disciplinary record, ABA Standard
9.32(a); and (2) personal or emotional problems, ABA
Standard 9.32(c). After reviewing the record, we agree that
those mitigating factors are present.
Cite as 372 Or 589 (2024) 615
Respondent contends that the trial panel overlooked
two additional mitigating factors. For the following reasons,
we disagree.
He first contends that the panel should have con-
sidered the delay in proceedings, citing a three-year delay
between DCO’s initial inquiry and the trial panel hearing.
A delay in disciplinary proceedings can be a mitigating fac-
tor under ABA Standard 9.32(j). See In re McDonough, 336
Or 36, 45, 77 P3d 306 (2003) (applying that factor when Bar
filed formal complaint in 2001 alleging criminal acts, some
of which occurred in the 1980s). This court’s case law, how-
ever, suggests that, when the lawyer is responsible for a sig-
nificant part of the delay, that factor is not given any weight.
In re Devers, 328 Or 230, 244 n 7, 974 P2d 191 (1999); see also
Paulson, 346 Or at 720 (agreeing that no weight in mitiga-
tion should be given to the delay in proceedings if respon-
dent was a “significant contributing factor” in the delay).
Here, respondent was responsible for a significant part of
the delay because he failed to timely and fully respond to
DCO’s requests for information.16 Under the circumstances,
we do not believe the delay in proceedings is a significant
mitigating factor in this case.17
Second, respondent argues that we should consider,
as a mitigating factor, his administrative suspension under
BR 7.1 for failing to respond to DCO. See ABA Standard
9.32(k) (“imposition of other penalties or sanctions” listed as
a mitigating factor).18 Again, we disagree. Generally, that
factor has been treated as a mitigating factor only when
the earlier sanction was imposed by different authorities or
jurisdictions for the same misconduct. See, e.g., In re Griffith,
304 Or 575, 637, 748 P2d 86 (1987) (applying factor when
some of lawyer’s indebtedness had likely been reduced by
16
Respondent asserts in his opening brief that the trial panel hearing was
originally set at an earlier time but was delayed when he attempted (unsuccess-
fully) to settle the case so that he could take a job out of state. That evidence was
not presented to the trial panel, however, and so it is not properly before us.
17
In one case, we assumed that a three-year delay between the filing of the
initial Bar grievance and the trial panel decision could be a mitigating factor but
concluded that the mitigating factors in that case were “substantially outweighed
by the aggravating factors.” In re Ramirez, 362 Or 370, 385, 408 P3d 1065 (2018).
18
The Bar’s Motion for Leave to File Memorandum of Additional Authorities
on this issue, opposed by respondent, is denied.
616 In re Munn
civil judgments against him); In re Chase, 339 Or 452, 459,
121 P3d 1160 (2005) (trial panel considered both financial
difficulties and other sanctions as mitigating factors when
lawyer suspended for failing to comply with child support
order). Moreover, the administrative suspension imposed
under BR 7.1 would have terminated if respondent had com-
plied with the Bar’s request for information. BR 7.1(g). Thus,
the length of that suspension was within respondent’s con-
trol. Respondent did not respond to the Bar’s administra-
tive sanction petition at all, and he did not fully respond to
DCO’s request for information until after the Bar filed its
formal complaint.19 Although we agree that, in some cases,
an administrative sanction for conduct that also violates
RPC 8.1(a)(2) might be an appropriate mitigating factor,
we do not think that the Bar’s administrative sanction was
a significant mitigating factor under the circumstances of
this case.
In sum, we agree with the trial panel that only
two mitigating factors apply: absence of a prior disciplinary
record, and personal or emotional problems that may have
affected respondent’s practice during the time in question.
3. Case Law
Finally, we turn to our case law for guidance in
determining the sanction, and we agree with the Bar that a
sanction of 24 months is appropriate. The purpose of a sanc-
tion is not to punish the lawyer, but to protect the public.
In re Renshaw, 353 Or 411, 419, 298 P3d 1216 (2013) (citing
ABA Standard 1.1). In general, a single violation of the duty
of competence would typically result in a suspension rang-
ing from 30 to 60 days, and multiple violations can result in
30-to-60-day suspensions for each violation. See, e.g., Bettis,
342 Or at 241-42 (30-day suspension when lawyer failed to
review discovery before advising client to waive jury trial);
In re Roberts, 335 Or 476, 71 P3d 71 (2003) (60-day suspen-
sion for two violations involving neglect and conduct preju-
dicial to administration of justice); Knappenberger, 337 Or at
17 (90-day suspension for two violations, one knowing and
one negligent, involving neglect). And this court typically
19
We have emphasized that failing to respond to the Bar’s investigation “is
not a viable strategy for avoiding sanction.” Long, 368 Or at 459.
Cite as 372 Or 589 (2024) 617
imposes a 60-day suspension for failing to respond to DCO
requests. See In re Miles, 324 Or 218, 224-25, 923 P2d
1219 (1996) (120-day suspension imposed for two failures
to respond to disciplinary inquiry); In re Schaffner, 323 Or
472, 481, 918 P2d 803 (1996) (60-day suspension imposed
for neglect and additional 60-day suspension for failure to
respond disciplinary inquiry); see also In re Lopez, 350 Or
192, 194, 252 P3d 312 (2011) (9-month suspension for mul-
tiple violations involving failures to adequately explain,
neglect, and competence affecting seven separate clients).
After considering respondent’s mental state, the
duties violated, the injury caused, aggravating and mitigat-
ing factors and our case law, we agree with the trial panel
that a 24-month suspension is appropriate.
Respondent is suspended from the practice of law
for a period of 24 months, effective 60 days from the filing of
this decision.