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In re Dugger9/26/2002
En Banc
Argued and submitted May 13, 2002.
The accused is suspended from the practice of law for nine months, effective 60 days from the date of the filing of this decision.
In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with violating Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(4) (engaging in conduct prejudicial to administration of justice); DR 5-101(A)(1) (continuing representation when professional judgment was or reasonably may have been affected by lawyer's own financial, business, property, or personal interests); DR 5-101(B) (prohibiting lawyer from preparing instrument giving lawyer or person related to lawyer significant gift from client); DR 7-102(A)(2) (knowingly advancing claim unwarranted under existing law); DR 7-110(B)(2) (communicating with judge about merits of case in writing without promptly delivering copy to opposing counsel or party); and DR 7-110(B)(3) (engaging in ex parte communication with court without notice to opposing counsel). A trial panel of the Disciplinary Board concluded that the accused had violated some, but not all, of those rules and suspended him from the practice of law for nine months.
This court's review is automatic, Bar Rule of Procedure (BR) 10.1, and we review the decision of the trial panel de novo, ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by "clear and convincing evidence," BR 5.2, which means evidence establishing that the truth of the facts asserted is highly probable, In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). Although this court's review is de novo, we generally give weight to the trial panel's credibility findings. In re Trukositz, 312 Or 621, 629, 825 P2d 1369 (1992). For the reasons that follow, we conclude that the accused violated DR 1-102(A)(3), DR 1-102(A)(4), and DR 7-110(B)(2) and (3), and we conclude that the appropriate sanction is a nine-month suspension from the practice of law.
I. FACTS AND DISCUSSION
The accused, a sole practitioner, was admitted to the Bar in 1962. His practice includes criminal defense, personal injury , domestic relations, probate, and bankruptcy . The Bar's charges in this case stem from the accused's conduct in connection with the three matters described below.
A. Mantow Matter
Mantow lived near the accused's office and began going to the accused's office to visit in the mid-1970s, probably because he and the accused had mutual friends. Mantow and the accused talked about gardening and books, and reminisced about other matters of common interest, such as World War II. Mantow and the accused sometimes went out for coffee, and Mantow occasionally brought flowers from his garden for the accused's office. The accused enjoyed visiting with Mantow, because Mantow was a "very interesting person" who remained interested in life. Because of his friendship with Mantow, the accused "would do just about anything for the old gentleman."
The accused did not represent Mantow in any legal matters until December 1987, when Mantow paid the accused $225 to start a file to investigate pursuing a claim on Mantow's behalf regarding an investment that Mantow had made in a company that had gone bankrupt. Mantow wrote additional checks to the accused between 1988 and 1992 for the accused's efforts to recover some of Mantow's investment in the bankrupt company.
During the time that the accused knew Mantow, Mantow became "paranoid" about people stealing from his bank accounts. Mantow believed that having a second
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