S056998, Opinion — In re Snyder

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Argued and submitted March 1, accused suspended from practice of law for
30 days, effective 60 days from date of filing of decision May 27, 2010

In re Complaint as to the Conduct of
SCOTT M. SNYDER,
Accused.
(OSB Case No. 08-19; SC S056998)
232 P3d 952

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# En Banc

On review of the decision of a trial panel of the Disciplinary
Board.

Kevin Keaney, Portland, argued the case and filed the
brief for the accused.

Susan Roedl Cournoyer, Assistant Disciplinary Counsel,
Oregon State Bar, 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, effective 60 days from the date of the filing of this
decision.

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# PER CURIAM

In this lawyer disciplinary proceeding, the Oregon
State Bar charged the accused with four violations of the
Oregon Rules of Professional Conduct (RPC). A trial panel of
the Disciplinary Board found the accused guilty of three of
the charged offenses and imposed a sanction of a 60-day sus-
pension. The accused seeks review of that decision. ORS
9.536(1); Bar Rules of Procedure (BR) 10.1 and 10.3. The Bar,
for its part, asks this court to find that the accused also com-
mitted the fourth alleged violation. See BR 10.5(c) (permit-
ting the Bar to urge rejection of any part of trial panel deci-
sion in answering brief). On de novo review, ORS 9.536(2);
BR 10.6, we affirm the trial panel's findings that the accused
committed three of the charged violations. We reject the
Bar's contention that it proved by clear and convincing evi-
dence that the accused committed the fourth charged viola-
tion. Finally, we conclude that a 30-day suspension from the
practice of law is an appropriate sanction.

All of the accused's alleged violations arose out of his
representation of a single client, Cohn. Cohn is a Florida res-
ident who happened to be in Portland, Oregon, in January
2005, when he slipped and fell on some ice on the sidewalk
outside the Marriott Hotel, where he was staying. Cohn was
injured and sought medical treatment. In June 2005, Cohn
asked the accused to represent him in suing the Marriott, the
City of Portland, and Multnomah County. In response, the
accused sent Cohn an e-mail with various documents
attached, which the accused told Cohn needed to be filled out
for the representation to begin. Cohn filled out the forms and
returned them a few days later. Cohn also mailed the accused
his medical records.

The accused took several actions on Cohn's behalf
almost immediately: He sent tort claim notices to the city and
county; he sought ownership information from the Marriott;
and he placed the Marriott on notice of a potential claim. The
accused sent Cohn copies of those notices. The accused also
began exchanging e-mails with Cohn to set up an in-person
meeting in Portland in August, when Cohn would be back in
Oregon. In the course of that e-mail exchange, Cohn men-
tioned that he could not find a copy of his medical records (he

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had either misplaced them or sent the accused the originals)
and asked the accused to provide him with a copy.

The two met in Portland on August 23, 2005. During
that meeting, the accused explained to Cohn his conclusion
that the city and county would not be liable for Cohn's inju-
ries because, under the Portland City Code, the Marriott, as
the owner of the adjacent property, was responsible for the
condition of the sidewalk on which Cohn had slipped and
fallen. The accused did not provide Cohn with the requested
copy of his medical records either before or at the meeting.

After Cohn returned to Florida, Cohn again asked
the accused for a copy of his medical records, again explain-
ing that he could not find his copy. The accused did not
respond to that request. The accused later testified that he
assumed that Cohn could assemble another set of his medical
records by requesting them from each of his providers. How-
ever, the accused did not advise Cohn of that assumption or
tell Cohn to ask the providers for copies. The accused finally
provided Cohn with copies of his medical records in September
2007, more than two years after Cohn's first request and well
after this disciplinary action was underway.

Meanwhile, the accused received responses from the
city and the county denying liability, and from the Marriott,
asking for more information to permit it to better assess the
claim. The accused did not reply to those responses or send
copies to Cohn. The Marriott sent a second request for infor-
mation in October 2005 and a third in February 2006. Cohn's
health insurer also sent the accused two letters in late 2005,
asking for more information about Cohn's claim and assert-
ing a recovery right related to medical expenses. The accused
never responded to any of those requests; neither did he com-
municate with Cohn to tell him about any of those letters or
send him copies of them.

In November 2005, Cohn wrote the accused a letter
to update the accused on the status of his injury. Cohn told
the accused that he believed himself to be medically station-
ary at that time (that is, that his injury was not amenable to
further treatment), but he also informed the accused that he
was depressed and suicidal as a result of his injuries. Cohn
asked the accused to do whatever was possible to expedite

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the case and he asked for a status report with time frames.
He also enclosed more recent medical reports. There is some
indication in the record that the accused and Cohn had a
telephone conversation sometime in November, but the
accused did not memorialize that conversation in any notes
and neither Cohn nor the accused could remember what they
discussed. In any event, the accused did not take any action
in the case in response either to Cohn's letter or to the
conversation.

The accused later explained that he did not move for-
ward with the litigation or negotiations after Cohn asked him
to do so in the November letter, because he did not think
Cohn's condition was stationary at that time. However, there
was no evidence that the accused took any steps to ascertain
whether Cohn's condition had changed or become stationary.
For example, the accused never talked to Cohn's health care
providers, nor did he ask for any other medical records. More-
over, the accused did not advise Cohn that, in his opinion,
nothing could be done on the case at that time because Cohn's
condition was not stationary.

Cohn sent an e-mail to the accused to two different
addresses on February 10, 2006, stating his understanding
that he would know within six months whether the Marriott
would make a reasonable offer. When a copy of that e-mail to
one of the accused's addresses came back as undeliverable,
Cohn also faxed a copy of the e-mail to the accused's office.
The accused did not respond to those requests for informa-
tion. The accused later explained that he was in Africa at the
time of those e-mails. He had not notified Cohn that he would
be unavailable and he did not set up automated responses to
phone calls or e-mails advising callers or senders that he was
away. The accused also later stated that the fax must have
been filed in his absence, because he never saw a copy of it.

In any event, the accused did not communicate with
Cohn or do anything to further the case after he returned
from his trip.1 On July 14, 2006, Cohn sent the accused an
angry letter, giving the accused until July 31 to reply. Cohn

1 The accused claimed to have looked at the file in April but had no notes
memorializing that activity.

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again outlined his understanding from the initial conversa-
tion that the accused would file a lawsuit if Cohn had not
received a reasonable settlement offer from the Marriott
within six months of his becoming medically stationary, and
that it would take about a year to adjudicate the case. He
noted in the letter that he had telephoned the accused on
July 10, and that the accused had not responded to that call
or to any other communication from Cohn in eight months.

The accused responded to that letter with a brief
e-mail on July 22, advising Cohn that he would write shortly
and acknowledging that he had received the July 10 phone
call, but explaining that he had not yet answered it because
another client had been killed by a drunk driver, and the
accused was assisting the client's family with the aftermath
of that event.

The accused did send a letter to Cohn on July 26, for-
mally responding to Cohn's letter. The tone of the accused's
letter was confrontational and accusatory. In that letter, the
accused provided Cohn with his first status report of the case.
He advised Cohn that both the city and the county were
immune from liability for his injuries. The accused reviewed
the medical records that Cohn had provided to him, pointing
to the fact that those records indicated that Cohn had had
some kind of accident several years before the fall and had
been injured in a traffic accident shortly after the fall. The
accused suggested that Cohn had hidden that information
from him, and told Cohn that those injuries would make any
recovery from the Marriott more difficult. The accused told
Cohn that it would take a lawsuit to get any money out of the
Marriott and suggested that it would be expensive to bring
the case to trial. He asked Cohn for $500 for costs before
going forward and gave Cohn a deadline of August 18 to
make a decision.

In response, Cohn wrote a letter to the accused ter-
minating the lawyer-client relationship. Three months later,
Cohn filed a Bar complaint against the accused, stating,
among other things, that the accused had failed to return his
file and that he had contacted five other lawyers who all had
declined to represent him because of the short time frame
before the expiration of the statute of limitations. Cohn never

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filed suit against the Marriott and did not recover any dam-
ages for his injuries.

The Bar asked the accused for a response to Cohn's
complaint. In his response, the accused stated that, after tak-
ing the case, he had discovered a number of problems with
the case that would make Cohn's claims harder to prove and
that would probably necessitate a lawsuit, rather than nego-
tiations, to persuade the Marriott to pay damages. He also
had concluded that Cohn's situation would not become sta-
tionary before the statute of limitations expired. The accused
did not acknowledge that he had not communicated with
Cohn between August 2005 and July 2006 or that he had not
investigated whether any of the problems that he had iden-
tified actually were impediments to the case. He did admit
that he had not asked his client for records relating to the
motor vehicle accident, and that he had not asked him
whether he still was seeing a physician for his injuries.

The Bar charged the accused with violating four
Rules of Professional Conduct: RPC 1.4(a) ("A lawyer shall
keep a client reasonably informed about the status of a mat-
ter and promptly comply with reasonable requests for infor-
mation."); RPC 1.4(b) ("A lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make
informed decisions regarding the representation."); RPC 1.3
("A lawyer shall not neglect a legal matter entrusted to the
lawyer."); and RPC 1.15-1(d) ("[A] lawyer shall promptly
deliver to the client or third person any funds or other prop-
erty that the client or third person is entitled to receive[.]").

After a hearing on the matter, the trial panel issued
an opinion in which it found that the accused had committed
three of the four charged violations (discussed below) and
suspended the accused from the practice of law for 60 days.
As noted, the accused now seeks review of that decision in
this court.

Here, the accused contends that his failure to com-
municate with Cohn showed poor business sense, but it did
not amount to an ethical violation. He also argues that, in
any event, the 60-day suspension was too severe. The Bar
asserts that the trial panel correctly found that the accused

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violated RPC 1.4(a), RPC 1.4(b), and RPC 1.15-1(d). In addi-
tion, the Bar contends that there is clear and convincing evi-
dence that the accused neglected a legal matter in violation of
RPC 1.3. Finally, the Bar argues that a 60-day suspension is
appropriate. We begin by considering the charged ethical
violations.

The Bar alleges that the accused violated RPC
1.4(a), which provides that "[a] lawyer shall keep a client
reasonably informed about the status of a matter and
promptly comply with reasonable requests for information."
Relatedly, the Bar also alleges that the accused violated RPC
1.4(b), which provides that "[a] lawyer shall explain a matter
to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation." The
Bar contends that the accused violated both those rules by
failing to communicate with Cohn for at least eight months.
Specifically, the accused did not inform Cohn that the
Marriott's claims department had sent him three requests for
information about the claim. In addition, although the
accused claims to have made a tactical decision neither to
acknowledge nor respond to the Marriott's requests, he never
informed Cohn about that decision. Neither did the accused
inform Cohn about correspondence that he had received from
Cohn's health insurer, asserting recovery rights that could
have affected the amount that Cohn ultimately might have
received on his claim. Furthermore, although the accused
had concluded that Cohn was not medically stationary (not-
withstanding Cohn's contrary belief) and that it was there-
fore premature to commence settlement negotiations with
the Marriott, the accused did not inform Cohn of that conclu-
sion. Finally, the accused failed to respond to Cohn's repeated
phone calls and e-mails asking for information about the
case. In fact, until the accused finally responded to Cohn's
urgent messages and letter about the case in July 2006, Cohn
had been completely uninformed about of the status of his
case.

The accused does not dispute any of the foregoing
facts. Instead, he contends that, if the Bar and the trial panel
had a "realistic understanding of trial practice," they would
see that his actions amounted to no more than "[l]ess-than
stellar customer relations." In support of that position, the

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accused asserts that, during the eight-month period between
the accused's last communication with Cohn in November
2005 and his July 2006 response to Cohn's letter threatening
to terminate the representation, Cohn had to have under-
stood the status of the case. That is, Cohn had to have known
that the Marriott had made no settlement offer, because
Cohn would have had to be consulted about it. In conclusion,
the accused argues that there is no bright line concerning
how long a lawyer can go without communicating with a cli-
ent or how many client phone calls a lawyer can fail to return
before the failure amounts to an ethical violation. Here,
according to the accused, he clearly did not drop below the
standard of what a reasonable lawyer would have done in his
circumstances because, he contends, Cohn was not actually
harmed by the accused's failures.

The accused displays a fundamental misunder-
standing about what the Rules of Professional Conduct
require. RPC 1.4 requires lawyers to maintain reasonably
adequate communication with their clients by keeping cli-
ents informed about the status of their matters, by complying
with reasonable requests for information, and by explaining
matters to the extent reasonably necessary to permit clients
to make informed decisions. Although RPC 1.4 is a relatively
new rule in Oregon, a lawyer's duty to communicate with cli-
ents was a part of the diligence requirement of former
Disciplinary Rule (DR) 6-101(B), which dealt with neglect of
a legal matter. In considering alleged violations of that rule,
this court held that failing timely to communicate good or bad
news to the client constituted a violation of that rule, In re
Coyner, 342 Or 104, 108, 149 P3d 1118 (2006), as did failing
to keep a client informed about the status of the case, In re
Bourcier, 325 Or 429, 432-33, 939 P2d 604 (1997). The court
also observed, in a case in which a lawyer did not write any
letters to his client about the case and failed to return his cli-
ent's phone calls or respond to the client's requests for pro-
gress reports, that neglect of a client and procrastination are
violations of professional responsibility. In re Geurts, 290 Or
241, 245-46, 620 P2d 1373 (1980).

In this case, we have no difficulty concluding that the
accused's failure to communicate with Cohn went well
beyond "bad customer relations" and violated RPC 1.4(a) and

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(b). The accused failed to discharge his professional respon-
sibility to keep his client reasonably informed about the
status of the case when he did not apprise Cohn about com-
munications with the Marriott, Cohn's health insurer's asser-
tion of recovery rights, or his own judgment that settlement
negotiations should not be (and therefore had not been) com-
menced. He also failed to discharge his professional respon-
sibility to respond to reasonable requests for information
when he ignored Cohn's repeated requests for updates and
information about the case and for confirmation of Cohn's
understanding of how the case would proceed. Those
requests were reasonable in substance and timing.

Finally, the accused failed to discharge his profes-
sional responsibility to explain the case to Cohn to the extent
reasonably necessary to permit Cohn to make informed deci-
sions about it. Although "not every failure to respond to a cli-
ent's requests [for information] also constitutes a failure to
explain a matter sufficiently," In re Koch, 345 Or 444, 455,
198 P3d 910 (2008), a lawyer is required to consult with a cli-
ent and to discuss concerns that a claim may lack merit or
should not be pursued. Geurts, 290 Or at 246 n 6 (that a cli-
ent's claim lacks merit "cannot excuse a failure promptly to
consult with the client and discuss this conclusion with
him"). Here, the accused did not inform Cohn that he did not
believe that Cohn was medically stationary and that, there-
fore, settlement negotiations were premature, or that Cohn's
case was much weaker than he previously had believed
because of Cohn's other injuries. Those conclusions are pre-
cisely the kind of information that a client needs to know in
order to make informed decisions about the case. We find
that the Bar has proved by clear and convincing evidence
that the accused violated RPC 1.4(a) and (b).

The Bar also contends that the accused violated RPC
1.3, which provides that "[a] lawyer shall not neglect a legal
matter entrusted to the lawyer." Neglect is "the failure to act
or the failure to act diligently." In re Magar, 335 Or 306, 321,
66 P3d 1014 (2003). An isolated incident of negligent conduct
does not establish neglect; rather, unethical neglect exists
when there is a course of neglectful conduct in the represen-
tation of a client. Id .; Bourcier, 325 Or at 433.

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The Bar argues that the accused neglected Cohn's
legal matter by failing to take any action to "meaningfully
investigate or advance" Cohn's claims after his initial activity
in mailing notices to various opposing parties. The Bar points
out that the accused failed to advocate for Cohn's interests
when he ignored requests for information from the Marriott
and Cohn's insurer, and that he took no steps to investi-
gate concerns raised by Cohn's medical records. The Bar
argues that this court has found unethical neglect in other
cases under similar circumstances. For example, in In re
Knappenberger, 337 Or 15, 24, 90 P3d 614 (2004), this court
found that a lawyer had violated former DR 6-101(B) (prede-
cessor of RPC 1.3) when, over the course of several months,
he failed to read or respond to correspondence dealing with
several significant events in a case he was handling for his
client, and failed even to check on the status of the case
despite inquiries from the client. And in In re Dugger, 299 Or
21, 697 P2d 973 (1985), this court found that a lawyer uneth-
ically neglected a client for two years when, after filing a con-
struction lien for his client, he determined that the case
lacked merit but did not inform the client of that conclusion,
did not take any other action in the case, and did not return
the client's phone calls.

Whether the accused violated RPC 1.3 in his repre-
sentation of Cohn is a close question. However, on balance,
we agree with the trial panel that the accused's conduct with
respect to Cohn's matter does not rise to the level of an ethical
violation. The accused worked on the case in July and August
2005. There is evidence in the record that he may have
reviewed the file in November 2005 and April 2006, although
he did not memorialize any work done at those times. The
trial panel found that the accused had made a strategic deci-
sion not to take any action in the case because of Cohn's med-
ical instability, and that the accused's lack of action in the
case reflected that strategic decision. We accept that assess-
ment. In addition, during the hearing on these charges, the
accused put forth a tactical justification for not replying to
the correspondence from the Marriott and Cohn's insurer.
Those factors differentiate this case from Knappenberger and
Dugger, although the facts in Dugger are close. The distinc-
tion between this case and Dugger lies in Dugger's failure,

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even after he determined to abandon his client's cause, to so
inform the client. We hold that the Bar has not shown by
clear and convincing evidence that the accused violated RPC
1.3.

Finally, the Bar charged the accused with violating
RPC 1.15-1(d), because he failed to return Cohn's file mate-
rials, including his medical records, promptly upon request.
RPC 1.15-1(d) provides that "[a] lawyer shall promptly
deliver to the client or third person funds or other property
that the client or third person is entitled to receive." A law-
yer's case files are "property" of the client that must be
returned. See In re Worth, 336 Or 256, 270, 82 P3d 605 (2003)
(lawyer violated predecessor of RPC 1.15-1(d) when he failed
to return client files when requested to do so); In re Devers,
317 Or 261, 265, 855 P2d 617 (1993) (same). The accused does
not challenge the trial panel's finding that he failed promptly
to return Cohn's files and medical records. We find that the
Bar proved by clear and convincing evidence that the accused
violated RPC 1.15-1(d).

Having found that the accused violated RPC 1.4(a),
RPC 1.4(b), and RPC 1.15-1(d), we turn to the appropriate
sanction. In so doing, we consider the following factors in
deriving a presumptive sanction: (1) the ethical duty vio-
lated; (2) the lawyer's mental state; and (3) the actual or
potential injury caused by the misconduct. In re Jackson, 347
Or 426, 440, 223 P3d 387 (2009); American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended
1992) (ABA Standards) 3.0(a)-(c). We then consider whether
any aggravating or mitigating circumstances justify an
adjustment to that presumptive sanction. Jackson, 347 Or at
440-41; ABA Standard 3.0(d). Finally, we consider the appro-
priate sanction in light of this court's case law. Jackson, 347
Or at 441.

The accused in this case violated his duty to his cli-
ent to act with reasonable diligence and promptness in com-
municating with and representing his client, ABA Standard
4.4. The accused also violated his duty to preserve his client's
property when he failed promptly to return Cohn's files and
records. ABA Standard 4.1.

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We turn to the accused's mental state. A lawyer acts
negligently when he fails to "heed a substantial risk that cir-
cumstances exist or that a result will follow" and that failure
"is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation." ABA Standards at 7.
A lawyer acts knowingly if he acts with "the conscious aware-
ness of the nature or attendant circumstances of the conduct
but without the conscious objective or purpose to accomplish
a particular result." Id. A lawyer acts intentionally when he
acts with "the conscious objective or purpose to accomplish a
particular result." Id. The trial panel found that the accused
acted negligently in failing to communicate with Cohn but
knowingly in failing to return Cohn's files and records.

The Bar argues that the record establishes that the
accused acted knowingly in failing to communicate with
Cohn, insofar as the accused knew that he had not returned
his client's phone calls; he knew that he had not answered
e-mails; he knew that he had not informed his client regard-
ing the status of the case; he knew that he had not explained
that his change of strategy was a result of his new impres-
sions of the facts; and he knew that he had not disclosed to
Cohn his opinion that Cohn was not medically stationary and
that Cohn's other injuries would complicate his case.

In addition, the Bar contends that, although the rec-
ord supports the trial panel's finding that the accused acted
knowingly in failing to return Cohn's files and records, there
also is evidence to suggest that the accused acted intention-
ally to deprive Cohn of those materials. Specifically, the Bar
points to the accused's testimony at the hearing in this pro-
ceeding suggesting that he did not respond to Cohn's
repeated requests for copies of his medical records because
Cohn could have obtained them himself from his medical pro-
viders. The accused also testified that he did not provide the
case file upon Cohn's request because he assumed that he
would eventually provide it to another lawyer who might
take over the representation.

We agree with the Bar that the accused acted know-
ingly with respect to his violations of RPC 1.4(a) and (b). That
is, the accused had to have been consciously aware of that

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he was not responding to Cohn's phone calls, letters, and
e-mails. Even accepting the accused's explanation for his fail-
ure to respond to Cohn's February 2006 e-mails and fax, the
accused had to have been aware that he had ignored Cohn's
numerous other efforts to communicate with the accused. In
addition, given that Cohn's inquiries almost always included
references to his understanding that recovery, or at least lit-
igation, was imminent, we find that the accused was aware
that he had not informed his client about either the status of
the case or his own reassessment of the strategy that they
would pursue.

However, we disagree with the Bar's assertion that
the accused acted intentionally with respect to his failure to
return Cohn's records and files. The accused's testimony at
the hearing in this proceeding reveals that he knew that he
was obligated to return the case file to Cohn. Moreover, the
accused's testimony reveals that he was consciously aware
that Cohn had asked for copies of his medical records and for
the case file and that the accused had not sent them. Clearly,
the accused acted knowingly. However, our de novo review of
the record does not convince us that the accused acted with
"the conscious objective or purpose to accomplish a particular
result," beyond the necessary consequence that the client
would not have the records.

We turn to the question of injury. The ABA Standards
define "injury" as follows:

" 'Injury' is harm to a client, the public, the legal system, or
the profession which results from a lawyer's misconduct.
The level of injury can range from 'serious' injury to 'little or
no' injury; a reference to 'injury' alone indicates any level of
injury greater than 'little or no' injury."

ABA Standards at 7. The accused has contended throughout
this proceeding that Cohn did not suffer any injury to his case
as a result of the accused's inaction, because, in his response
to Cohn's July 2006 letter, he offered to initiate a lawsuit if
Cohn would advance $500 in filing fees and, in any event, at
the time that Cohn terminated the representation, the stat-
ute of limitations had not yet run. That argument misses the
point. The accused's failure to communicate prevented Cohn
from taking other measures to pursue his claim and, together

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with the accused's failure to return the medical records and
client files, left Cohn in the difficult position of trying to find
new counsel only a few months before the statute of limita-
tions expired. Moreover, even if Cohn ultimately would not
have been able to recover against the Marriott, Cohn clearly
suffered anxiety and frustration from the accused's lack of
communication and failure to respond to his requests for the
files and records. Client anguish, uncertainty, anxiety, and
aggravation are actual injury under the disciplinary rules.
See In re Paulson, 346 Or 676, 717, 216 P3d 859 (2009), adh'd
to as modified on recons, 347 Or 529, 225 P3d 41 (2010)
(anguish and uncertainty are actual injury); In re Jones, 312
Or 611, 618, 825 P2d 1365 (1992) (client anxiety and aggra-
vation are actual injury); In re Arbuckle, 308 Or 135, 140, 775
P2d 832 (1989) (same). We find that the accused's actions
caused actual injury to his client.

The ABA Standards provide that a suspension is the
presumptive sanction for the accused's violations. ABA
Standard 4.12 provides that "[s]uspension is generally appro-
priate when a lawyer knows or should know that he is deal-
ing improperly with client property and causes injury or
potential injury to a client." In addition, ABA Standard
4.42(b) indicates that suspension is appropriate when "a law-
yer engages in a pattern of neglect and causes injury or
potential injury to a client."

Having determined preliminarily that suspension is
the appropriate sanction, we consider any aggravating or
mitigating circumstances that would affect our sanction
determination. We find two aggravating circumstances: the
accused committed multiple offenses, ABA Standard 9.22(d),
and he has substantial experience in the practice of law, ABA
Standard 9.22(i).2 In mitigation, we find that the accused did

2 The trial panel also found that the accused's refusal to acknowledge the
wrongful nature of his conduct is an aggravating circumstance in this case. ABA
Standard 9.22(g). As this court has observed, however, an accused in a bar discipli-
nary proceeding has a right to defend himself vigorously against disciplinary
charges, In re Davenport, 334 Or 298, 321, 49 P3d 91, modified on recons, 335 Or 67,
57 P3d 897 (2002), and we are reluctant to punish a lawyer for "defend[ing] against
accusations respecting his or her personal character and professional responsibil-
ity." Id. In this case, it is sufficient to note that the existence of this aggravating cir-
cumstance is not pivotal to our analysis.

In addition, the Bar argues for another aggravating factor, viz., that the
accused acted with a dishonest or selfish motive. ABA Standard 9.22(b). The Bar

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not have a prior disciplinary record, ABA Standard 9.32(a);
that he did not have a selfish or dishonest motive, ABA
Standard 9.32(b); and that he cooperated with the discipli-
nary proceedings, ABA Standard 9.32(e).

On balance, we conclude that a suspension of some
term is appropriate in this case. We turn to a review of our
case law to help us determine the duration of that suspen-
sion. The Bar points us to three cases that we agree are per-
tinent to our analysis:3 In re Knappenberger, In re Dugger,
and In re Geurts.

In Knappenberger, the lawyer had violated former
DR 6-101(B) (neglect of a legal matter) by failing to respond
to correspondence regarding significant developments in the
case and by failing to check on the status of the case despite
numerous inquiries from his client. The court found that the
lawyer had acted negligently in committing that violation,
and that the misconduct did not result in as serious an injury
as in other cases. However, the accused's neglect caused the
client anxiety and frustration and deprived him of the oppor-
tunity to respond to developments in the case. In addition,
the aggravating circumstances in that case outweighed the
mitigating factors. The court suspended the lawyer for
60 days for that violation. 337 Or at 33.

In Dugger, the lawyer filed a construction lien on
behalf of his client and then determined that the case lacked
merit. However, he did not inform the client of that conclu-
sion for over two years, he did not take any other action in the
case, and he did not return the client's phone calls. This court
found that that conduct violated former DR 6-101(A)(3)
(neglect of a legal matter). In addition, the court found that
the lawyer misrepresented to his client that he had filed an
action to foreclose the lien, in violation of former DR 1-
102(A)(4). Moreover, the court found that, after the discipli-
nary proceeding commenced, the lawyer failed to promptly

theorizes that the only explanation for the accused's failure to return Cohn's files
was a desire to hide the fact that he had not responded to the Marriott's requests
for information. The record does not support that conclusion.

3 The Bar cites three other cases as well, but we do not find those cases helpful,
because the lawyer's conduct in those cases was substantially more egregious than
that of the accused's here.

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and affirmatively respond to Bar inquiries in violation of
former DR 1-103(C) (setting out such a requirement). The
court concluded that a 63-day suspension was appropriate in
that case. 299 Or at 29-30.

Finally, in Geurts, the court found that, over a period
of two years, the lawyer failed to respond to 10-12 telephone
calls and two letters from the client, and did not respond to
17 telephone calls and three letters from the opposing party
concerning a settlement offer. The court imposed a 30-day
suspension for the lawyer's neglect of his client's claim in vio-
lation of former DR 6-101(A)(3). In doing so, however, the
court observed that it recently had begun to treat lawyer mis-
conduct that involved neglect and procrastination more seri-
ously than it had in the past, and emphasized that merely
because, in Geurts, it concluded that a 30-day suspension was
appropriate, "this should not be misunderstood to mean that
substantially stronger disciplinary measures may not be
applied to future violations of [former] DR 6-101(A)(3)." 290
Or at 246.

We have been unable to find a case involving the
knowing failure to return client property that did not also
involve much more serious misconduct than was present
here. Nonetheless, as we discussed above, a suspension of
some term also is appropriate for that violation.

We think that, in this case, taking into consideration
this court's case law and the aggravating and mitigating cir-
cumstances, a 30-day suspension is warranted. The accused's
behavior was perhaps most similar to that of the lawyer in
Knappenberger. The court there imposed a 60-day suspen-
sion for a single violation charging neglect of a legal matter.
Here we have found that the accused committed three sepa-
rate ethical violations, but in Knappenberger, the aggravat-
ing factors clearly outweighed the mitigating factors. The
lawyer in Dugger was suspended for 63 days for three viola-
tions of the disciplinary rules, one of which involved a mis-
representation to a client. And, as noted, the court suspended
the lawyer in Geurts for 30 days for neglecting his client over
a two-year period.

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In selecting a sanction, we conclude that a sanction
of 30 days is appropriate. The accused's actions, although jus-
tifying a suspension, were not as serious as those in the cases
on which the Bar relies. In our view, a suspension of 30 days
strikes the appropriate balance.

The accused is suspended from the practice of law for
30 days, effective 60 days from the date of the filing of this
decision.