S054821, Opinion — In re Knappenberger

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Argued and submitted March 6, accused suspended from practice of law for two
years, commencing 60 days from date of filing of decision August 14, 2008

In re Complaint as to the Conduct of
ALLAN F. KNAPPENBERGER,
Accused.
(OSB 05-54, 05-109, 05-110; SC S054821)
186 P3d 272

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CJS, Attorney and Client § 80.

# En Banc

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

Roy Pulvers, Hinshaw & Culbertson LLP, Portland,
argued the cause and filed the reply brief for the accused.
With him on the reply brief was David J.
Elkanich. Allan F. Knappenberger filed a brief pro se.

Stacy J. Hankin, Assistant Disciplinary Counsel, argued
the cause and filed the brief for the Oregon State Bar.

# PER CURIAM

The accused is suspended from the practice of law for two
years, commencing 60 days from the date of filing of this
decision.

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# PER CURIAM

In this lawyer disciplinary proceeding, the Oregon
State Bar (Bar) charged Allan F. Knappenberger (the
accused) with four violations of the Disciplinary Rules (DR) of
the Oregon Code of Professional Responsibility1 in three
causes of complaint. In the Miller matter and the Albright
matter, the Bar alleges that the accused violated DR 2-106(A)
(lawyer may not charge illegal or clearly excessive fee). In the
Dobler matter, the Bar alleges that the accused violated DR
1-102(A)(4) (lawyer may not engage in conduct prejudicial to
the administration of justice) and DR 7-106(A) (lawyer may
not advise client to disregard court order). A trial panel of the
Disciplinary Board concluded that the accused had violated
the rules as alleged. Based on those violations, and on a vari-
ety of other violations of the disciplinary rules for which the
accused had been sanctioned in other proceedings, the trial
panel permanently disbarred the accused.

The accused seeks review in this court pursuant to
ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1. The
accused challenges the findings and conclusions of the trial
panel concerning the Miller and Dobler matters and the trial
panel's sanction. The accused does not contest the findings
and conclusion of the trial panel concerning the Albright
matter. We review bar disciplinary matters de novo. ORS
9.536(2); BR 10.6. For the reasons that follow, we conclude
that the accused violated the disciplinary rules as charged in
the Miller and Albright matters, but not in the Dobler mat-
ter. As to sanction, we suspend the accused from the practice
of law for two years.

# MILLER MATTER

The Bar alleges that the accused violated DR
2-106(A) by charging and collecting a fee from Eric Miller for
legal work in connection with a social security claim without
the prior approval of the Social Security Administration
(SSA). DR 2-106(A) provides, "A lawyer shall not enter into

1 The Oregon Code of Professional Responsibility applies to the conduct at
issue in this case because it occurred prior to January 1, 2005, the effective date of
the Oregon Rules of Professional Conduct.

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an agreement for, charge or collect an illegal or clearly exces-
sive fee." The Bar alleges that Miller engaged the accused to
obtain disability benefits for him from the SSA and that the
accused sent bills to Miller and collected fees from Miller and
from his parents, Joe Miller and Virginia Miller, for that
work. The Bar contends that the accused charged and col-
lected an illegal fee for that legal work because federal regu-
lations provide that an attorney may not charge for such
work or receive a fee unless the SSA has given prior approval
to the attorney to bill and collect for that work. Specifically,
20 CFR § 404.1720(b)(3) provides:

"A [lawyer or legal representative of a disability claim-
ant] shall not charge or receive any fee unless we have
approvedit, and he or she shall not charge or receive any fee
that is more than the amount we approve. This rule applies
whether the fee is charged to or received from you or from
someone else."

The Bar asserts that the SSA never approved any charges by
the accused for his representation of Miller. As we describe in
greater detail below, the accused responds that, although he
billed and was paid for other legal work that he did for Miller,
he never "charged" Miller for the SSA matter because he had
an oral agreement with Miller that entries for the SSA mat-
ter on the monthly bills were not to be considered "charges"
and were not to be paid.

The accused testified that he explained to Miller in a
meeting on November 15, 2001, that he could not bill or col-
lect fees for the SSA matter until those fees were approved by
the SSA, and the accused contends that his contemporaneous
notes support that testimony. The accused asserts that he
informed Joe Miller of that arrangement after the November
15 meeting with Miller. The accused also argues that, even
after the Millers read that same information in an SSA pam-
phlet in May 2003, they did not contest the accused's billings;
that they never questioned the billings either orally or in
writing; and that they did not mention the issue when they
fired the accused in March 2004. He asserts that the Millers
did not raise the issue because they understood that he was
not "charging" Miller for the SSA work.

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In June 2003, the accused filed an Appointment of
Representative form with the SSA in which he agreed that he
would "not charge or collect any fee for the representation
unless it has been approved in accordance with the
[applicable] laws and rules * * *. " He states that he shared
that document with the Millers. The accused also argues
that, because there was always a total outstanding balance of
over $21,000 on the bills, and the monthly payments from the
Millers averaged only $2,000, none of the fees that they paid
actually were applied to the SSA matter, but rather were
applied to fees that Miller owed the accused for work on other
matters. In short, the accused contends that his bills were not
really "charges" because he never expected to receive pay-
ment from the Millers for the SSA entries.

The Millers testified that the accused did not inform
them that he could not charge for the SSA matter until he
had received permission from the SSA. They testified that
they learned of that rule from an SSA pamphlet in May 2003
and that when Miller brought that information to the atten-
tion of the accused, the accused took the pamphlet from him
and never explained why he was billing for the SSA matter.
The Millers admit that they did not raise that issue with the
accused again, either orally or in writing. After the Millers
fired the accused in March 2004, they hired another attorney
to pursue Miller's benefits claim, and Miller was awarded
benefits within several months. The accused then petitioned
the SSA for fees for his work on Miller's SSA matter. The
Millers opposed that fee request and stated to the SSA
administrative law judge (ALJ) that the accused had already
charged and been paid for the SSA matter. The ALJ stated
that the accused's statements that he had not charged and
collected fees for the SSA matter "were not well taken" and
rejected the accused's petition for attorney fees.

On de novo review, we find that the Bar proved the
following facts by clear and convincing evidence. In
November 2001, the accused was representing Miller on sev-
eral legal matters, including a marital dissolution. On
November 15, 2001, the accused and Miller met to discuss a
possible claim by Miller to receive disability benefits from the
SSA, and the accused agreed to pursue such a claim. On
November 25, 2001, the accused sent Miller a bill that

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included three entries for the SSA matter. The bill included
entries for four separate legal matters, but the SSA matter
was not listed as a separate matter. Instead, the SSA matter
entries were listed under the dissolution matter heading. The
accused continued to work on the SSA and dissolution mat-
ters and to bill in that way until May 2003. The summary
pages for the bills that the accused sent from November 2001
to April 2003 included the SSA matter charges in the total
amount charged for the dissolution matter and in the total
amount due. The bills did not include a separate total for the
charges for the SSA matter. The May 2003 bill listed several
entries for the SSA matter under the dissolution matter and
also listed several entries under a new matter heading enti-
tled "SOCIAL SECURITY CLAIM." On the summary page
for that May 2003 bill, the SSA matter and the dissolution
matter charges were added together to calculate a total
amount of current charges and a total balance due.

There is no indication on any bill that the SSA mat-
ter billing was for informational purposes only or that the
accused did not expect the Millers to pay the charges for the
SSA matter. In June 2003, the accused sent Miller a sum-
mary statement with separate pages for each matter. On the
page for the SSA matter, the summary statement states,
"Balance Now Due $638.15." The summary statement for the
dissolution matter similarly states, "Balance Now Due" and
the total amount due includes fees for the SSA matter entries
that were listed under the dissolution matter in earlier bills.
The later bills set out the total balance from the prior bill,
indicate the amount subtracted for "payments received" and
the amount added for "current charges"-including those for
the SSA matter. The bills identify the resulting number as
the "Balance Now Due." We find that the accused charged
Miller for SSA work.

We also find by clear and convincing evidence that
the SSA had not authorized the accused to bill Miller for
the work on Miller's benefit claim, as required by 20 CFR
§ 404.1720. Accordingly, we conclude that the accused
charged Miller an illegal fee, in violation of DR 2-106(A).

As noted, the accused nevertheless argues that he
had an oral agreement with Miller that the fees for the SSA

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matter did not need to be paid and therefore were not
"charges." We rejected a similar argument in In re Balocca,
342 Or 279, 151 P3d 154 (2007). In that case, the Bar accused
Balocca of depositing client funds into his own account. The
accused conceded that he had deposited the client's funds
into his own account, but asserted that he had a written
agreement with his client that the funds were nonrefundable
and were deemed earned upon receipt. The accused was una-
ble to produce the written agreement, but he argued that the
Bar had failed to prove "that no such agreement existed." 342
Or at 288. We rejected that argument. We stated that

"although the Bar has the burden of proving the alleged vio-
lations by clear and convincing evidence, it does not have
the burden of proving the nonexistence of the fee agree-
ment. Rather, because the accused sought to rely on the
existence of the fee agreement to justify his handling of
Taylor's payments, it is his burden to demonstrate the exis-
tence of such an agreement."

Id. at 289. Here, the accused similarly seeks to rely on the
existence of an alleged agreement with respect to the fee to
prove that his bills do not mean what they otherwise plainly
indicate-that he charged his client for work on the SSA
matter. As noted, no credible evidence supports the accused's
contention, and contemporaneous written documents
contradict it.

## DOBLER MATTER

Many of the facts with respect to the Dobler matter
are undisputed, and we set them out first to provide the con-
text for the central factual issue that is disputed: whether the
accused advised Dobler to disregard a court order. The
accused represented Rebecca Dobler (mother) in a marital
dissolution in 2003 and 2004. In August 2003, the court
entered an order that included the parties' arrangement for
parenting time of their child during the dissolution proceed-
ing. That arrangement and order specified that father was to
have time with the child every Friday morning for four hours.
On the morning of December 3, 2003, the accused faxed a let-
ter to Engel, father's attorney, that listed various support
issues that the parties were planning to discuss at a hearing
that afternoon before Washington County Circuit Court

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Judge Keith Raines. Included in that letter was a statement
that mother would not deliver the child to father in Portland
on Friday, December 26, 2003, because mother and the child
planned to vacation in Bend with relatives from December 24
through December 28. The letter proposed that, in exchange,
father would receive additional parenting time on future hol-
idays. Thatissue had not been scheduled for the hearing that
day, and there are no documents that show that the issue
was discussed or resolved on December 3. Neither the
accused nor Engel documented any response to or discussion
of mother's proposed plan for December 26, or the lack of any
response to the plan.

On December 15, mother and the accused met to dis-
cuss various issues concerning the dissolution, including
mother's plan for December 26. After that meeting, mother
left voicemail messages on December 17 and 19 for father on
father's secondary telephone number restating her plan for
December 26. Father did not reply to those voicemails, appar-
ently because they were not left on his primary telephone
number, and he did not hear them until December 22. The
accused and mother talked further on December 20 concern-
ing that issue and father's lack of response. On Sunday,
December 21, mother met father when he picked up the child,
and neither mentioned mother's plans for December 26.
When asked at the accused's disciplinary hearing why she
did not raise the issue with father, mother responded, "Well,
because I was told by Mr. Knappenberger that [father's]
silence means no objection, so why would I raise the question
to get an objection?"

On Monday, December 22, the accused faxed a letter
to Engel stating that, because father had "failed to object to
my client[']s proposal to take the child for all of Friday,
December 26, 2003[,]" mother would keep the child that day.
Engel responded the same day that father "and his family
have plans with [child] on Friday morning. [Mother] should
follow the normal Friday schedule." Later that day, the
accused faxed another letter to Engel stating that Engel had
not told the accused that father objected to the plan and that
mother had already made plans based on father's "failure to
timely object." The accused wrote, "Your failure to respond to

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the [December 3] letter in writing resulted in [mother] solid-
ifying her plans which she will proceed with." The accused
also faxed to mother copies of his two letters to Engel and of
Engel's letter to him. In his letter to mother that accompa-
nied those letters, the accused stated, "Please proceed with
your plans as we discussed over the weekend which is reit-
erated in my letter to Mr. Engel enclosed herein."

The accused and Engel continued to exchange let-
ters on the issue. (There is some uncertainty about exactly
when certain letters were sent or received, but those details
are not material to the issues before us.) Engel wrote to the
accused that he had told the accused orally on December 3
that father objected to the December 26 plan and that he
would file a contempt motion against mother if she did not
deliver the child to father on December 26. The accused
responded that Engel had not said anything about the issue
on December 3 and that a contempt motion would be a "waste
[of] time and money" because father had failed timely to
object to mother's plans. The accused faxed those letters to
mother at her office on December 24. Meanwhile, mother had
left Portland on December 24 to drive, with child, to Bend.
The office manager at mother's office reviewed the letters,
including Engel's letter threatening to seek to have mother
held in contempt of court. The office manager called mother
(who was en route to Bend) on her cell phone and read the let-
ters to her. Mother then called the accused, discussed the
matter with him, and proceeded to Bend. Mother did not
deliver the child to father on December 26.

Engel, on behalf of father, later filed a motion to hold
mother in contempt for violating the parenting time order.
The court found mother in contempt and awarded father
$2,500 in attorney fees and four additional hours of parent-
ing time. At the contempt hearing, mother testified that she
had solidified her plans to take the child to Bend on
December 21 after father had picked the child up from her
that afternoon and had not objected to her plans. Father tes-
tified that he had not heard the voicemail messages from
mother until December 22. Mother also testified at the con-
tempt hearing that although she had learned on December
22 that father objected to her plans for December 26, she still

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thought that it was permissible for her not to return the child
that morning and to keep the child that day or to return the
child later that day (instead of the scheduled drop-off at
7:00 a.m.). Mother testified that, although she became aware
of the threatened contempt motion, she believed that it was
acceptable for her to not deliver the child to father on that
day. She stated, "[s]ince [father] didn't object * * * it was okay
to modify the schedule." The court found that mother had
known of father's objections before she had left Portland for
Bend. The court therefore rejected her estoppel and detri-
mental reliance defenses to the contempt motion.

The Bar argues that the accused (1) advised his cli-
ent to disregard an order of the court and (2) engaged in con-
duct prejudicial to the administration of justice. DR 7-106(A)
provides:

"A lawyer shall not disregard or advise the lawyer's cli-
ent to disregard a standing rule of a tribunal or a ruling of a
tribunal made in the course of a proceeding but the lawyer
may take appropriate steps in good faith to test the validity
of such rule or ruling."

DR 1-102(A)(4) provides that it is professional misconduct for
a lawyer to "[e]ngage in conduct that is prejudicial to the
administration of justice[.]" To establish a violation of that
rule, the Bar must prove

"(1) that the accused lawyer engaged in 'conduct' by doing
something that the lawyer should not have done or by fail-
ing to do something that the lawyer was supposed to do;
(2) that the conduct occurred during the course of a judicial
proceeding or another proceeding that has the trappings of
a judicial proceeding; and (3) that the conduct was prejudi-
cial because it involved several acts that caused some harm
to the administration of justice or because it involved a sin-
gle act that caused substantial harm to the administration
of justice."

Inre Eadie, 333 Or 42, 55, 36 P3d 468 (2001).

The Bar alleges that the accused violated both of
those rules because, on or before December 20, 2003, the
accused "advised [mother] that she need not deliver the child
on December 26, 2003[,]" and because the accused "did not
alter that advice even after Engel objected, reminded the

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Accused of the prior court order and threatened to file a
motion for contempt." The Bar argues that the evidence dem-
onstrates that the accused instructed his client to disregard a
court order when he advised her, prior to December 21, that
she did not need to deliver the child to father on December 26;
when he wrote to mother on December 22-after Engels' let-
ter expressing father's objections-to "proceed with your
plans as we discussed"; and when he allegedly told mother in
the telephone call on December 24 that she need not return to
Portland and deliver the child to father on December 26, but
instead could proceed to Bend. The Bar also relies on
mother's testimony that the accused never informed her that
there was a risk that she could be found in contempt if she did
not deliver the child to father on December 26.

The accused's response is simple: he asserts that he
did not tell mother to disregard the court order concerning
parenting time. He contends that he advised mother only
that, if father failed to respond to the proposal to modify the
visitation plan and she changed her circumstances in reli-
ance on father's silence, then mother would have a defense to
a contempt action if she chose to violate the court order. The
accused denies that he ever advised mother to disregard the
court order.

The accused also relies on Judge Raines's findings at
the contempt hearing that "[mother] knew full well, even
before she left, that she * * * ran the risk of being in contempt
of court. She chose to do things differently." Judge Raines tes-
tified at the trial panel hearing that there was "nothing
improper" about the accused's defense; it simply failed
because mother had heard from father before leaving for
Bend. (The accused testified before the trial panel that he
thought the defense was still valid even after receiving the
objection from father on December 22 because mother had
already changed her plans on December 21 in reliance on
father's failure to object.) The Bar contends that Judge
Raines's conclusions do not support the accused because his
assessment of the accused's defense and behavior was based
on incomplete information. The Bar points out that Judge
Raines had not seen the letter from the accused to mother
saying that she should proceed with her plans and had
not known of the accused's alleged advice to mother on

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December 24, that she should proceed to Bend and not
deliver the child on December 26.

To prove that the accused violated DR 7-106(A) and
DR 1-102(A)(4), the Bar needs to show by clear and convinc-
ing evidence that the accused advised his client to disregard
the order regarding parenting time. As noted, the Bar points
to the accused's December 22 letter to mother to "proceed
with your plans." The Bar also relies on mother's testimony
that the accused did not tell her that she ran the risk of being
held in contempt for not returning the child and that, when
she inquired about that risk on December 24, the accused
told her that she did not need to be concerned with that risk.

In response, the accused testified that he did tell
mother that she risked being held in contempt if she violated
the order and that his letter to her of December 22 did not tell
her to disregard the court order. He asserted that the
December 22 letter referred instead to his advice to mother
that, if she decided not to deliver the child to father on
December 26, she would have a defense to a motion for con-
tempt based on her detrimental reliance2 on father's silence
following the December 3 request. The accused testified that,
during the December 24 telephone conversation, he had
advised mother that "she had a good defense to any claim of
contempt based upon the theory * * * [of] detrimental reli-
ance." He also testified that,

"[S]he had her choice whether to come back or go. And I told
her that I thought she had a-she had a-in my opinion, we

2 The accused's "detrimental reliance" theory was that mother had relied on
father's lack of objection to her plan when she confirmed, on December 21, her
brother's travel from Texas and her grandparents' travel from John Day to Bend
for that week's holiday celebration. We need not, and do not, reach any conclusion
regarding the validity of an estoppel defense to a charge of contempt stemming
from a violation of a parenting time agreement in a court order. The accused's det-
rimental reliance theory was not, according to Judge Raines, wholly without merit;
it simply was not supported by the facts, because mother was aware of father's
objections before traveling to Bend. Judge Raines testified to the trial panel that,
although detrimental reliance was not a modification of the order, it was a valid
defense.

"The lawyer can advise, 'You've got a court order. You're in peril if you don't fol-
low the court order. But I can't control what you're going to do, and I'll make an
argument for you saying that you thought you had a right to do it based on the
circumstances.' I think a lawyer can do that."

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had a defense to the contempt [motion]. So she, notwith-
standing my advice, could have elected to come [back to
Portland], not go to Bend and wait until the 26th, but it was
her decision."

We cannot find, from the evidence in this record,
that it is "highly probable" that the accused told mother to
disregard the court order. See In re Gustafson, 333 Or 468,
470, 41 P3d 1063 (2002) (reiterating earlier holdings that
"clear and convincing" evidence standard means that the
truth of the facts asserted is highly probable). Although
mother testified that the accused never told her that she
might be held in contempt, that testimony is not supported
by her testimony at the contempt hearing or the findings of
Judge Raines. Moreover, mother did not mention the
accused's alleged advice that she could disregard the order
without risk during the contempt hearing in February 2004,
and she did not mention or complain of it in her letter to the
accused when she fired him in April 2004 or in her first two
letters to the Bar concerning the accused. That history
undercuts our ability to find, by clear and convincing evi-
dence, that mother's recollection of those events is accurate
and that the accused's recollection is inaccurate.

We do not consider whether the advice that the
accused gave mother with respect to the detrimental reliance
defense was correct. The trial panel opined that, "The
Accused told his client to disregard a court order on the
extremely weak theory that the order had been changed by
estoppel * **. " However, the issue before us is not the
strength or weakness of the theory, but whether the accused
advised mother to disregard the court order. Regardless of
whether the theory was "weak" or not, the accused would
have violated the disciplinary rule if he had advised his client
to disregard the court order. Even ifthe facts had been differ-
ent and had strongly supported the detrimental reliance the-
ory, the accused would have violated DR 7-106 if he had told
mother to disregard the order instead of merely advising her
that she had a possible defense to a motion for contempt if
she chose to violate the court order.3 Although the Bar has

3 DR 7-106(A) provides an exception to the rule against advising a client to dis-
regard a court order when the attorney is taking "appropriate steps in good faith to
test the validity of such rule or ruling."

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argued extensively and persuasively that the accused's det-
rimental reliance theory was weak, that does not support-
by clear and convincing evidence-its assertion that the
accused told his client to disregard the court order. The
accused may have provided poor legal advice, as the trial
panel also concluded, but the Bar's complaint asserts that the
accused violated DR 1-102(A)(4) and DR 7-106(A) when he
advised his client to ignore the court order and not deliver the
child to father on December 26. The bar failed to prove by clear
and convincing evidence that the accused advised mother to
disregard the parenting order. It therefore failed to prove the
charged violation of DR 1-102(A)(4) and DR 7-106(A).

## ALBRIGHT MATTER

As noted previously, the accused does not dispute
the trial panel's conclusion that he violated DR 2-106(A) in
the Albright matter. However, because the violation in the
Albright matter plays a role in our sanctions analysis, we dis-
cuss that matter briefly. The accused, while suspended from
the practice of law, was working as a legal assistant for
another attorney, Todd, on a dissolution matter for Albright,
who had retained the accused prior to his suspension. The
trial panel found that Todd's office charged Albright's credit
card $7,000 for services rendered, that those services had
been rendered, and that Albright had authorized that charge.
Albright later terminated Todd's legal services, challenged
the fee, and filed a Bar complaint. In response to the chal-
lenge to the fee, the accused-by then practicing again after
the expiration of his suspension-prepared an affidavit con-
cerning the services and the fee. He then prepared and sent
Albright a bill charging her a fee for the time spent preparing
and editing that affidavit. The trial panel concluded that
such a charge was an excessive fee because this court has
held that an attorney may not charge a client for time spent
in a fee dispute. In re Benett, 331 Or 270, 278, 14 P3d 66
(2000) (so stating and citing cases holding that charging cli-
ent for time spent on fee dispute with client or responding to
Bar complaint constitutes excessive fee); In re Paulson, 335
Or 436, 71 P3d 60 (2003) (charging client for responding to
client's Bar complaint constituted violation of DR 2-106(B)).
The accused does not dispute those conclusions.

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# SANCTION

In determining the appropriate sanction in a lawyer
disciplinary proceeding, this court first considers the
American Bar Association's Standards for Imposing Lawyer
Sanctions (1991) (amended 1992) (ABA Standards). In re
Schaffner, 323 Or 472, 478, 918 P2d 803 (1996) (illustrating
principle). We consider the duty violated, the accused's men-
tal state, and the actual or potential injury that the miscon-
duct caused. ABA Standard 3.0. Next, we determine if there
are any aggravating or mitigating circumstances, which
would support an adjustment of the sanction determined
under the first step. And finally, we review our case law to
ensure that the sanction that we impose is consistent with
our prior cases. In re Fitzhenry, 343 Or 86, 108, 162 P3d 260
(2007).

The accused violated his duty to the legal profession
in the Miller and Albright matters. ABA Standard 7.0; see
Paulson, 335 Or at 441 (finding duty to legal profession vio-
lated for violation of DR 2-106(A)). The accused asserts that
his mental state in the Albright matter was "knowing," not
"intentional." The ABA Standards provide that "intent" is
"the conscious objective or purpose to accomplish a particular
result," while "knowledge" means having an awareness of the
nature of the conduct but acting without that objective or
purpose. ABA Standards at 12. Based on the evidence
described above, we find that the accused had the objective
and purpose of charging Miller an illegal fee and of charging
Albright an excessive fee for services. The accused acknowl-
edged that he knew that federal law barred him from charg-
ing for work done on Miller's SSA matter without prior
authorization from the SSA. The accused also acted inten-
tionally in the Albright matter by charging fees for his time
spent in the fee dispute with the former client, when this
court has held that such charges are not permitted. See, e.g.,
Benett, 331 Or at 278-80 (finding that accused acted inten-
tionally in billing client for time spent in fee dispute).

We also find that the accused's conduct created the
potential for injury. The accused's conduct could have caused
both Miller and Albright to pay charges that they did not
owe. See Paulson, 335 Or at 442 (finding potential for injury

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when lawyer improperly billed client for time spent in fee dis-
pute with client). The ABA Standards provide for the same
sanction regardless of whether the injury is actual or poten-
tial. ABA Standards 7.1 - 7.4; accord In re Fitzhenry, 343 Or
at 109.

Based on those findings, the presumptive sanction is
a suspension. ABA Standard 7.2. As to aggravating and mit-
igating factors, several are essentially undisputed. There are
multiple offenses, ABA Standard 9.22(d), and the accused
has substantial experience in the practice of law. ABA Stan-
dard 9.22(i). On the mitigation side of the ledger, the accused
fully cooperated with the disciplinary process. ABA Standard
9.32(e).

Wenow turn to what the Bar argues is a particularly
significant aggravating factor: the accused's prior discipli-
nary record. In 2006, this court suspended the accused for
one year for neglect of a legal matter. In re Knappenberger IV,
340 Or 573, 135 P3d 297 (2006). In that opinion, we summa-
rized the accused's disciplinary record:

"First, the accused stipulated to a reprimand in 2000 for a
single violation of DR 7-104(A)(1) (knowingly contacting
represented person on subject directly related to represen-
tation). In re Knappenberger, 14 DB Rptr 148 (2000)
(Knappenberger I). Second, in Knappenberger II, this court
found the accused guilty of one violation of DR 5-101(A)
(conflict of interest with lawyer's self interest), for the
accused's conduct during the period January to February
1994, and of one violation of DR 6-101(B) (neglecting a legal
matter), for conduct that took place from September 1999 to
July 2000. And third, in In re Knappenberger, 338 Or 341,
108 P3d 1161 (2005) (Knappenberger III), this court found
the accused guilty of one violation of DR 7-104(A)(1) (com-
municating with a represented person on subject directly
related to representation), for conduct that took place in
March 2000, and of one violation of DR 5-105(C) (former cli-
ent conflict of interest), for his conduct in representing both
parties in a divorce proceeding from October to December
2000."

Id. at 584-85. This court suspended the accused for 90 days in
Knappenberger II and for 120 days in Knappenberger III. As
of the time this case was submitted, the accused had served

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the one-year suspension ordered in Knappenberger IV, but
had not applied for reinstatement. See BR 8.1(a)(iv) (requir-
ing application for readmission for an attorney "suspended
for misconduct for a period of more than six months").

We weigh prior disciplinary offenses according to
several factors, including:

"(1) the relative seriousness of the prior offenses and result-
ing sanction; (2) the similarity of the prior offense to the
offense in the case at bar; (3) the number of prior offenses;
(4) the relative recency of the prior offense; and (5) the tim-
ing of the current offense in relation to the prior offense and
resulting sanction, specifically, whether the accused lawyer
had been sanctioned for the prior offense before engaging in
the offense in the case at bar."

Knappenberger IV, 340 Or at 585 (internal quotation and
citation omitted). Considering the accused's disciplinary rec-
ord in light of those factors, some of his earlier offenses weigh
heavily, while others do not. As in Knappenberger IV, we
assign little weight to the stipulation, but we consider the
offenses in Knappenberger II and Knappenberger III to be
serious. See Knappenberger IV, 340 Or at 585-86 (so conclud-
ing). We also conclude that the offense in Knappenberger IV
was serious because it was for neglect of a legal matter and
that neglect occurred over a significant period of time "during
which the accused was reminded numerous times of his obli-
gations and had ample opportunity to rectify the situation."
Id. at 588. The offenses in Knappenberger III and one of the
two offenses in Knappenberger II all occurred within a few
years of each other and within a few years of the offenses in
this complaint-between 1999 and 2004. What we have
stated twice before concerning the accused is even more true
at this juncture:

"[T]he accused's offenses, taken together, present an unset-
tling record of violating the disciplinary rules. Indeed, they
carry significant weight in aggravation, because their pres-
ence demonstrates that the accused is careless with respect
to his ethical obligations."

Knappenberger IV, 340 Or at 586 (internal quotation marks
and citations omitted).

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Reducing the weight of those prior sanctions, how-
ever, is the fifth factor that we listed in Knappenberger IV,
the timing of those prior sanctions in relation to the current
matters. The Miller matter occurred before this court's deci-
sion in Knappenberger II, and the Albright matter occurred
before Knappenberger III. Additionally, the current offenses
are violations of different disciplinary rules than were
involved in the prior sanctions. In In re Wyllie, 331 Or 606, 19
P3d 338 (2001) (Wyllie III), this court concluded that it should
not give the accused's two prior sanctions much weight
because they were for different offenses and because the
sanctions in those earlier cases had been imposed after the
conduct at issue in Wyllie III. Id. at 623 ("Although the
accused's prior offenses were serious and resulted in lengthy
suspensions, under this court's case law, we do not give them
much weight in determining the appropriate sanction in this
case."). In In re Huffman, 331 Or 209, 13 P3d 994 (2000), we
summarized our prior conclusions on the "timing of prior
sanctions" issue.

"As explained in [In re] Jones, [326 Or 195, 200, 951 P2d
149 (1997)], especially important is 'whether the accused
lawyer had been sanctioned for the prior offense before
engaging in the offense in the case at bar.' Id .; see also In re
Wyllie, 327 Or 175, 183, 957 P2d 1222 (1998) (that this
court's decision in earlier case was rendered after second
case had been concluded at trial panel level and briefed to
this court diminished significance of prior discipline as
aggravating factor); In re Starr, 326 Or 328, 347, 952 P2d
1017 (1998) (that events giving rise to prior discipline
occurred at roughly same time as events giving rise to sec-
ond proceedings somewhat diminished weight of prior dis-
cipline as aggravating factor, because accused lawyer's acts
in second proceeding did not reflect disregard of an earlier
adverse ethical determination)."

331 Or at 227-28.

We conclude that we should give moderate weight to
the accused's prior disciplinary record. Although the prior
offenses were, in the aggregate, serious, the current viola-
tions are of different disciplinary rules. Moreover, the Miller
matter occurred before the earlier decisions, so the accused's
behavior in that matter "do[es] not reflect a disregard of an

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earlier adverse ethical determination." In re Starr, 326 Or
328, 347, 952 P2d 1017 (1998) (giving "moderate" weight to
prior similar offenses that occurred at about the same time as
offenses at issue).

The accused asks this court to take into considera-
tion, as a mitigating factor in addition to his cooperation with
the disciplinary process, the interim rehabilitation that
he states that he undertook in response to prior sanc-
tions that this court has imposed. We note, first, that we
rejected "interim rehabilitation" as a mitigating factor in
Knappenberger IV because the ABA had eliminated that mit-
igating factor from the ABA Standards and because, in that
case, the panel found no evidence that the accused had
engaged in any interim rehabilitation. 340 Or at 586 n 4.
However, assuming that we would recognize "interim reha-
bilitation" as a mitigating factor in an appropriate case, the
accused here has not demonstrated facts to support his claim
of "rehabilitation" with respect to the disciplinary violations
at issue here. That is because the accused's evidence focuses
entirely on steps that he allegedly has taken to improve his
practice in response to the sanctions imposed in the prior
cases, including changes in the management of his practice to
avoid conflicts of interest and neglect of legal matters. But
"interim rehabilitation," as we have used that term, concerns
steps that the lawyer has taken to prevent the reoccurrence
of the violations at issue in the current case.4 In In re Starr,
this court considered, as a mitigating factor, steps that the
accused took after the conduct at issue in that case to address
that kind of conduct. 326 Or at 348. See also In re Murdock,
328 Or 18, 30, 968 P2d 1270 (1998) (considering, but reject-
ing, a claim of interim mitigation for steps taken after the
misconduct at issue); In re Koken, 214 Or 357, 360, 329 P2d

4 An accused's steps to change his practice in response to prior sanctions,
which is a more accurate characterization of the accused's evidence here, is one fac-
tor that may be considered in weighing the seriousness of prior offenses. In In re
Jones, 326 Or 195, 201, 951 P2d 149 (1997), this court stated that one of the reasons
for analyzing prior offenses is to determine if an accused has "adapt[ed] his conduct
in this case in response to being sanctioned" in prior cases. As such, whether an
accused has taken steps to rehabilitate herself or himself in response to earlier
sanctions can be a valid consideration when weighing the seriousness of prior sanc-
tions as an aggravating factor. In this case, the evidence is inconclusive concerning
whether the accused took effective interim rehabilitation measures in response to
the prior sanctions.

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894 (1958) (rejecting petition for reinstatement and discuss-
ing rehabilitation steps taken by the accused since the date of
the violation that led to the sanction). The accused has not
argued that he has taken any steps to rehabilitate his prac-
tice in light of the violations at issue in this case.

We turn to our prior cases involving similar discipli-
nary rule violations. In Paulson, this court publicly repri-
manded a lawyer for violating DR 2-106(A). In that case, the
accused lawyer charged a former client for time spent
responding to a Bar complaint, 335 Or at 438-39, which is
substantively similar to the accused's acts in the Albright
matter. In Paulson, however, there was only one violation
and no prior disciplinary record. In In re Fadeley, 342 Or 403,
153 P3d 682 (2007), this court suspended the accused lawyer
for 30 days for violating DR 2-106(A) and other disciplinary
rules in connection with a client fee issue. In other excessive
or illegal fee cases the court has imposed somewhat longer
suspensions, but those generally involved violations of addi-
tional rules or other aggravating circumstances. E.g., In re
Balocca, 342 Or 279, 151 P3d 154 (2007) (90-day suspension
for violating DR 2-106(A) and other rules; aggravating fac-
tors present).

Based on those cases, the likely sanction for the
accused's violations of DR 2-106(A) in the Miller and Albright
matters, considering aggravating factors other than the
accused's prior disciplinary record, would be a short suspen-
sion. The Bar, however, insists that the accused's prior disci-
plinary record requires that he be disbarred. Only by impos-
ing that ultimate disciplinary sanction, the Bar argues, can
the public be protected from the accused's repeated failure to
conform his conduct to the rules that govern the legal profes-
sion. The Bar cites, as roughly analogous cases, In re
Bourcier, 325 Or 429, 939 P2d 604 (1997) and In re Bridges,
302 Or 250, 728 P2d 863 (1986), where the court disbarred
the accused lawyers. We do not find those cases helpful in
deciding the sanction in this case. In those cases, the number
of violations involved was several times the total number of
violations involved in all of the accused's prior and current
disciplinary proceedings. Also, in those cases, the accused

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lawyers had failed to cooperate with the Bar, had been sanc-
tioned more than once for violating the same rules, and had
failed to appear in or respond to the final proceedings against
them that resulted in disbarment. We understand the Bar's
frustration with the accused and the reasons that it seeks
disbarment. However, this court's prior cases indicate that
the violations found here, even considering the accused's
prior disciplinary record, do not warrant disbarment.

That said, the accused's many trips to this court, and
the sheer number and variety of his disciplinary rule viola-
tions, demonstrate that something is seriously amiss in the
accused's ability to practice law in conformity with the rules
of the profession. His prior disciplinary record demonstrates
that an enhanced sanction is warranted.

In In re Chandler, 306 Or 422, 760 P2d 243 (1988)
(Chandler III), the accused attorney violated the same disci-
plinary rules (neglect of a legal matter and failure to turn
over client property) for a third time, failed to cooperate with
the Bar each time, and failed to appear in the proceeding in
Chandler III. The Bar argued that he should be disbarred.
Although the accused there violated the same rules repeat-
edly, had previously been suspended twice, and failed to
cooperate with the investigation, this court rejected the Bar's
request for disbarment and suspended the accused for two
years. Chandler III, 306 Or at 431-32. There, as here, the vio-
lations, with one exception, occurred before the sanctions had
been imposed. Id. Chandler, although obviously different
from this case in a number of particulars, demonstrates that
this court will use an accused lawyer's repeated prior viola-
tions to increase a sanction substantially, while reserving
disbarment for the most aggravated misconduct. We find
that precedent useful here. The accused's violations in this
case merit a suspension; his multiple prior violations support
an increase in the length of the suspension. Yet, as in
Chandler, we cannot say that the violations under consider-
ation, even considering the aggravating factors, justify the
most severe punishment that this court can impose for pro-
fessional misconduct. Rather, the accused's violations here
call for a lengthy suspension.

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For the foregoing reasons, we conclude that a two-
year suspension is appropriate for the accused's two viola-
tions of DR 2-106(A), when considered in light of the aggra-
vating factors and, particularly, the accused's past violations
of the disciplinary rules.

The accused is suspended from the practice of law for
two years, commencing 60 days from the date of filing of this
decision.