S056461, Opinion — In re Jackson

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Argued and submitted September 15, accused suspended from practice of law for
120 days, effective 60 days from date of filing of decision December 24, 2009

In re Complaint as to the Conduct of
JAY R. JACKSON,
Accused.
(OSB Case No. 07-54; SC S056461)
223 P3d 387

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# En Banc

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

Jay R. Jackson, Lebanon, filed the brief and argued the
cause in propria persona.

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

# PER CURIAM

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

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# PER CURIAM

In this lawyer discipline case, the Bar charged the
accused with neglect of a legal matter, conduct prejudicial to
the administration of justice, knowingly making a false state-
ment of fact to a tribunal, and conduct involving dishonesty
that reflects adversely on the lawyer's fitness to practice law.
The accused's primary defense is factual; he contends that
the Bar failed to prove that he neglected his client and made
misrepresentations to the court. On de novo review, we find
that the Bar proved the charged violations by clear and con-
vincing evidence, and we suspend the accused for 120 days.

The accused has been a lawyer since 1976. In 2005,
he began working as the administrator of a charter school
operated by People Involved in Education (PIE). The accused
still continued to handle a few cases and used space in a
trailer that PIE owned for his law office. In the fall of 2005,
the accused agreed to represent a coworker, who was in the
process of divorcing her husband. The accused's client (the
wife) and her husband had already reached an agreement on
parenting time and property division, and the accused filed a
petition for the dissolution of the marriage on December 19,
2005, in Linn County Circuit Court.

On December 26, 2005, someone broke into and van-
dalized the trailer that the accused used for his law office.1
The accused's files were "trashed," including the wife's disso-
lution file. At that point, the dissolution file consisted of the
petition and information that the wife had given the accused.
The accused reconstructed most, if not all, of the wife's file2
and, after December 26, 2005, stopped using the trailer as his
law office.

The husband retained Edward Daniels to represent
him in the dissolution proceeding, and Daniels filed a
response to the dissolution petition on January 6, 2006. Linn

1 The break-in was discovered on December 26. It could have occurred before
that date. There is also some evidence that there were a series of break-ins or
attempted break-ins at the trailer. Although we discuss the evidence later in
greater detail, we find that, to the extent that more than one break-in occurred, the
final break-in occurred on December 26, 2005.

2 The accused could not identify any specific documents that he did not recover,
although he suspected he might not have reconstructed the file completely.

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County has an established procedure for resolving dissolu-
tion proceedings. Once the petition and response have been
filed, the court seeks to resolve the proceeding within eight to
12 months. Towards that end, the court sets an early resolu-
tion conference. If the case involves child custody matters,
the court refers the case to mediation, which usually will
occur before the early resolution conference. At the early res-
olution conference, the court will try to determine which mat-
ters are contested. If disputed property issues remain, the
court refers the case to arbitration and sets a date for a final
resolution conference after the arbitration. The purpose of
the final resolution conference is to determine whether any
disputed issues remain for trial.

After the husband filed his response to the petition
in January, the court scheduled the early resolution confer-
ence for February 23, 2006. At that conference, Daniels rep-
resented that both parties were in mediation where they
were formulating a parenting plan, that the parties did not
think that there would be any property issues, but that spou-
sal support might be an issue. He explained that "what we
would like to do is set a settlement conference out about six to
eight weeks maximum, which would give us time to get
through a mediation," and that he anticipated that all the
issues could be resolved at the settlement conference. The
accused agreed with Daniels' representation and added that
he thought "that [it] would be appropriate to set it out for a
settlement conference." Consistent with the parties' repre-
sentations, the court scheduled a settlement conference for
April 20, 2006. Daniels also noted that the parties had not
exchanged discovery but that there might not be a need to do
so.

On April 20, the accused appeared at the settlement
conference and told the court that "he hadn't spent the time
he needed or had been too busy to look at the file or some-
thing to that effect and he wasn't prepared to do a settlement
conference."3 The court ordered arbitration to attempt to set-
tle the remaining property issues and scheduled a final reso-
lution conference for July 20, 2006. The court appointed an

3 Daniels testified before the trial panel that the accused made the statement
quoted above (or one similar to it) at the settlement conference. The accused could

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arbitrator and directed that the arbitration be completed by
June 13, 2006. The court sent a notice to the parties identi-
fying the arbitrator and directing the parties to provide a cal-
endar response to the arbitrator within ten days, showing the
dates on which they would be available for arbitration.

On May 1, 2006, Daniels sent his calendar response
to the arbitrator and the accused. The accused testified
before the trial panel that he had written "OK" on a copy of
Daniels' calendar response, signed it, and sent the marked
copy of Daniels' calendar response to the arbitrator and, he
presumed, Daniels.4 Neither Daniels nor the arbitrator
received the accused's response. On May 18, 2006, the arbi-
trator's assistant called the accused and left a message on his
voicemail for him to mail his calendar response.5 The accused
did not respond to the message. On May 30, 2006, the arbi-
trator's office left another message for the accused telling him
that they could not proceed until they heard from him and
again asking for a response. The accused did not respond.

On June 28, 2006, after learning that Daniels also
had not received any communication from the accused, the
arbitrator's assistant sent a letter to the court arbitration
coordinator, copying both attorneys. The letter stated that
arbitration had not been scheduled because the arbitrator
had never heard from the accused despite having left messa-
ges for him. The accused received the June 28 letter but did
not respond to it. He later testified that he assumed that the
issue would be discussed at the final resolution conference,
which was scheduled in approximately three weeks.

On July 20, 2006, both parties appeared before the
circuit court for the final resolution conference. After the
court called the case, the following exchange took place:

not recall what he had said but "guess[ed] that would be the best evidence of what
I said." Daniels made virtually the same representation when he and the accused
appeared before the circuit court on July 20, 2006. The accused did not dispute
Daniels' representation then either.

4 The accused could not remember specifically whether he had served a copy of
his response on Daniels but stated that that would be his custom.

5 Initially, the arbitrator's assistant called the wrong number. She found the
correct number, got the accused's voicemail, and left two messages, the first on
May 18 and the second on May 30.

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"[THE ACCUSED]: Your Honor, if I may-

"THE COURT: Yeah.

"[THE ACCUSED]: - I think it's incumbent on me to
explain what's going on here.

"THE COURT: Well, I notice there's a letter in the file
from [the arbitrator] and I remember reading this and not-
ing that we would address this today.

"And, I guess, the problem, [counsel], is nobody could
find you.

"[THE ACCUSED]: That's correct, Your Honor.

"The condensed version is that my office-all my files,
materials have been burglarized and vandalized actually a
series of times. Everything was either taken or destroyed
for all my calendaring, billing. All my record keeping
electronically.

"However, whoever did this was fairly methodical in
vandalizing all of the paperwork, dumping all of the file
cabinets. What I have been attempting to do is organize and
straighten this stuff out.

"However, in the meantime, I developed some form of an
eye ailment that I'm being treated for which, unfortunately,
one of the side effects of that is it made it very difficult for
me to read anything to sort through the paperwork.

"I realize this creates a huge inconvenience for the
Court, opposing party and counsel, and my client.

"* * * I don't know that there's much of anything that I
could have done to head this off."

The court and the parties discussed the best way to
proceed in light of those events. The court noted that the
accused had to get "all the discovery. If some of it's been sto-
len, we got to get it again" and stated that the accused needed
to ask Daniels for the discovery that was missing. Daniels, for
his part, noted that the accused had never called and said,
"you know, I lost everything, update it, or anything like that."
The accused acknowledged that he had not contacted Daniels
to ask for replacement documents. He explained that, "how-
ever poor judgment that may have been, I was still hoping

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that I could resurrect and reorganize enough of my file to be
able to proceed with this thing."

At the end of the final resolution conference, Daniels
noted that he had "real serious questions about all of what's
been said" and asked the court if he could ask the accused two
things: "the physical address of the office that was burglar-
ized and when it was burglarized." The accused gave the
address for the trailer but was not sure when the burglaries
had occurred. When Daniels asked, "Can you give a month?
Like was it May or June?," the accused said, "Well, it's been a
couple of times. Two times since our last court appearance,"
which the accused has acknowledged referred to the settle-
ment conference in April.

The court referred the matter once again to the arbi-
trator, directed the parties to proceed with arbitration, and
set the next court date for October 19, 2006. During the next
two months, the accused took no steps to proceed with the
arbitration. Rather, on September 13, 2006, the husband
asked Daniels to withdraw as his attorney, and Daniels did
so. The husband and wife then entered into a settlement
agreement, and the accused filed a final stipulated judgment
on October 17, 2006.

The Bar filed a formal complaint against the
accused. For the first cause of complaint, the Bar asserted
that the accused's lack of preparation for the April 20, 2006,
settlement conference and his failure to communicate with
the arbitrator constituted violations of Rule of Professional
Conduct (RPC) 1.3 ("A lawyer shall not neglect a legal matter
entrusted to the lawyer.") and RPC 8.4(a)(4) (making it pro-
fessional misconduct for a lawyer to "engage in conduct that
is prejudicial to the administration of justice").6 In its second
cause of complaint, the Bar alleged that, when the accused
told the court on July 20, 2006, that multiple burglaries had
affected his handling of the dissolution proceeding, that

" The Bar's complaint cited RPC 8.4(a)(3) rather than RPC 8.4(a)(4). The Bar's
subsequent filings cited 8.4(a)(4) for the first cause of complaint and the Bar made
the mistake known to the trial panel during the hearing. The accused stated that
he had no objection to the Bar's amendment to its complaint.

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statement was false. The Bar alleged that the accused's con-
duct violated RPC 3.3(a)(1) (prohibiting a lawyer from know-
ingly "mak[ing] a false statement of fact or law to a tribunal")
and RPC 8.4(a)(3) (making it professional misconduct for an
attorney to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation that reflects adversely on the
lawyer's fitness to practice law"). The accused filed an answer
denying the Bar's allegations.

At a hearing before the trial panel, the accused tes-
tified that he had in fact returned a calendar response to the
arbitrator,7 and he identified exhibit 16 as a copy of the
marked response that he returned.8 The accused also testi-
fied that he may not have been as clear as he could have been
in identifying when the break-ins occurred. The trial panel
issued an opinion finding that the Bar had proved all of its
allegations. Among other things, it did not credit the
accused's testimony at the disciplinary hearing. After consid-
ering aggravating and mitigating circumstances, including
prior disciplinary sanctions against the accused, the trial
panel suspended the accused for 180 days.

On review, the accused raises six arguments. He
argues initially that the trial panel erred "in failing to hold
the Bar to its burden of proving any alleged misconduct by
clear and convincing evidence." The accused's second, third,
fourth, and fifth arguments assert that the Bar did not prove
the four charged violations by clear and convincing evidence.
The accused's final argument concerns the sanction; on that
issue, he argues only that no sanction should be levied
because he did not violate any ethical rules.

The accused's first argument is brief. Essentially, he
argues that, because the trial panel did not state specifically
that the Bar had proved its case by "clear and convincing evi-
dence," the trial panel failed to apply the correct standard of
proof. It is true that the trial panel's opinion does not state
the standard of proof that it applied. As the Bar points out,
however, the pleadings that the Bar filed with the trial panel

" As noted, the accused testified that he had taken Daniels' calendar response,
written "OK" on it, signed it, and returned it to the arbitrator and, he assumed,
Daniels.

8 The Bar offered exhibit 16 into evidence.

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stated the correct standard of proof. For example, in its writ-
ten closing argument, the Bar began by asserting that the
evidence established violations by "clear and convincing evi-
dence" and concluded that "[t]he credible evidence is clear
and convincing." Nothing in this record suggests that the
trial panel used any other standard of proof. Beyond that,
this court reviews the facts in disciplinary proceedings
de novo. ORS 9.536(2); In re Koch, 345 Or 444, 447, 198 P3d
910 (2008). Even if the trial panel used the wrong standard,
this court's application of the correct standard of proof on
de novo review cures any possible error.

The first cause of complaint alleges that the
accused's failure to prepare for the April 20 settlement con-
ference, to provide a calendar response to the arbitrator, to
respond to the arbitrator's calls, and to schedule arbitration
constitute neglect and conduct prejudicial to the administra-
tion of justice. The accused has not disputed that, at the
April 20 settlement conference, he told the trial court, that
"he hadn't spent the time he needed or had been too busy to
look at the file or something to that effect and he wasn't pre-
pared to do a settlement conference." Rather, his factual dis-
pute focuses on the events surrounding arbitration.

On that issue, the accused testified before the trial
panel that he had mailed the arbitrator and presumably
Daniels his calendar response and that he did not receive the
voicemail messages that the arbitrator's assistant left for
him. As noted, however, neither the arbitrator nor Daniels
received the accused's calendar response. Similarly, the
accused never responded to the voicemail messages that the
arbitrator's assistant left for him, and the only explanation
that the accused offered at the July 20, 2006, final resolution
conference and later at the disciplinary hearing was that his
voicemail must not have been working. The accused, how-
ever, never identified any other voicemail messages that he
did not receive, although he speculated that some messages
might have been missed.

To credit the accused's testimony, we would have to
conclude that his letters to both the arbitrator and Daniels
were lost in the mail and that he never received the two
voicemail messages that the arbitrator's assistant left for

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him. Objectively, the coincidence that all four messages
would have been lost is difficult to credit. See State v. Johns,
301 Or 535, 552-53, 725 P2d 312 (1986) (discussing similar
issue). The accused's testimony that he in fact returned the
calendar response also is inconsistent with his actions at the
July 20 hearing. The accused received the June 28 letter from
the arbitrator's assistant, which told the court that arbitra-
tion had not been scheduled because the assistant had never
received a calendar response from the accused "in spite of the
fact that I have left telephone messages requesting that he
send the response." The accused, however, never called the
arbitrator's assistant or Daniels after he received the June 28
letter to let them know that he in fact had sent the arbitrator
a calendar response. Nor did he tell the court at the final res-
olution conference that he in fact had sent in the calendar
response, even though the court inquired about it. The
accused's silence before the court is inconsistent with his
later testimony before the trial panel.

The trial panel, as noted, did not find the accused's
testimony credible. In discussing the subjective reasons for
its credibility determination, the trial panel explained: "First
of all, the manner in which the Accused testified was not
credible. His mannerisms and speech levels when discussing
this issue were not indicative of a person who was being
candid. He was clearly uncomfortable while responding to
direct questions on this issue." We defer to the trial panel's
subjective credibility findings, In re Fitzhenry, 343 Or 86,
103 & n 13, 162 P3d 260 (2007), and the panel's subjective
credibility finding is consistent with our objective credibility
finding. We find by clear and convincing evidence that the
accused did not submit his calendar response to the arbitra-
tor and that he received but did not respond to the voicemails
regarding that failure.

Having resolved those factual disputes, we turn to
whether the accused's conduct violated RPC 1.3 or RPC
8.4(a)(4). RPC 1.3 provides that "[a] lawyer shall not neglect
a legal matter entrusted to the lawyer." Although one act of
negligence is not sufficient to violate RPC 1.3, either a course
of neglectful conduct or an extended period of neglect is suf-
ficient. In re Koch, 345 Or at 452. In this case, the accused
engaged in a course of neglectful conduct. The accused was

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not prepared for the settlement conference on April 20 that
he had requested, he failed to send in his calendar of availa-
ble dates after receiving the notice of the appointment of an
arbitrator, he failed to respond to two voicemail messages
reminding him to send in the response, and he took no steps
to pursue arbitration after the court referred the matter, once
again, to the arbitrator at the July 20 hearing and told the
parties "we need to get that going as soon as possible." Any of
those enumerated events can-and will-occur on occasion,
but having all of them occur in the same case and in the serial
manner in which they occurred is sufficient to constitute
neglect. See id. at 452-53 (accused's repeated failure to con-
tact client and respond to client's inquiries over a six-month
period constituted neglect); In re Knappenberger, 337 Or 15,
23-24, 90 P3d 614 (2004) (accused's repeated failure to con-
tact client or respond to events related to an unsuccessful
appeal constituted neglect under a previous, but identically
worded, rule of professional conduct). The accused knowingly
neglected his client's legal matter under RPC 1.3.

The accused's conduct also violated RPC 8.4(a)(4).
RPC 8.4(a)(4) prohibits an attorney from "engag[ing] in con-
duct that is prejudicial to the administration of justice." To
establish a violation under RPC 8.4(a)(4), the Bar must show
that

"(1) the accused lawyer's action or inaction was improper;
(2) the accused lawyer's conduct occurred during the course
of a judicial proceeding or a proceeding with the trappings
of a judicial proceeding; and (3) the accused lawyer's con-
duct had or could have had a prejudicial effect upon the
administration of justice."

In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (setting forth
this standard for violations of a previous, but identically
worded, rule of professional conduct); see In re Paulson, 346
Or 676, 683, 216 P3d 859 (2009) (adopting that standard for
RPC 8.4(a)(4)). We find that the accused's failure to be pre-
pared at the April 20 settlement conference and his repeated
failure to respond to the arbitrator was improper, occurred
during a dissolution proceeding, and prejudiced the admin-
istration of justice.

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On the last point, Linn County has established a
procedure for resolving dissolution proceedings quickly and
efficiently. One part of that procedure is to arbitrate property
disputes before the final resolution conference so that the
court can narrow the remaining issues, if any, for trial. Here,
the accused failed to respond to the court's order to schedule
arbitration and the arbitrator's attempts to secure his com-
pliance. Not only did the accused's failure to respond unnec-
essarily expend the time of the arbitrator and his staff, it
undercut the essential purpose of the final resolution confer-
ence. Instead of narrowing the issues for trial, the court spent
its time at the final resolution conference trying to under-
stand what had happened to derail the dissolution proceed-
ing and how it could get the case back on track.

Additionally, the accused's failure to be prepared for
the April 20 settlement conference that he requested (and
that he continued to hold out as the best way of resolving the
dissolution proceeding) unnecessarily expended judicial
resources. We conclude that the accused's actions, taken
together, prejudiced the administration of justice. See In re
Gresham, 318 Or 162, 166, 864 P2d 360 (1993) (“The
accused's repeated failures to do anything to administer the
estate-notwithstanding his repeated assurances to the
court-were prejudicial to the administration of justice,
requiring the court repeatedly to request information from
the accused.").

The Bar's second cause of complaint alleges that the
accused's statements to the trial court on July 20, 2006, vio-
lated RPC 3.3(a)(1) and RPC 8.4(a)(3). As noted, at the earlier
April settlement hearing, the court had directed the parties
to go to arbitration so that it could determine at the final res-
olution conference in July what, if any, issues remained for
trial. On June 28, the arbitrator's assistant wrote the court
that it had not been possible to schedule arbitration because
the accused had not notified the arbitrator when he would
be available to arbitrate despite her voicemail messages
requesting a response. The accused began the July 20 hear-
ing by attempting to "explain what's going on here." He told
the trial court that "all my files, materials have been burglar-
ized and vandalized actually a series of times" and, more spe-
cifically, "[t]wo times since our last court appearance." He

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explained that all his calendaring and billing had been
destroyed and stated that, although he had not asked
Daniels for missing documents, "I was still hoping that I
could resurrect and reorganize enough of my file to be able to
proceed with this thing."

The Bar argues that the accused's explanation was
false or misleading in two respects. First, it argues that no
burglaries occurred after December 26, 2005, and, at a mini-
mum, after April 20, 2006-the date that would have affected
the accused's ability to proceed with the arbitration. Second,
the Bar argues that, even if the trailer was burglarized after
April, the accused misled the trial court into believing that
those break-ins were the reason that he had failed to respond
to the arbitrator's request and proceed with the dissolution
case. The Bar notes that, because the accused stopped work-
ing out of the trailer after December 2005, any subsequent
break-ins would have had no material effect on his ability to
represent the wife's interests.

We begin with the number and timing of any burgla-
ries. The evidence clearly establishes that, on or about
December 26, 2005, someone broke into the trailer that the
accused used for office space and completely vandalized its
contents, including the accused's legal files. The testimony
regarding the existence and timing of other break-ins was
mixed. The owner of the property on which the trailer was
located works approximately 150 feet from the trailer and
walks or drives by it daily. He testified that, within a month
after the December break-in, the trailer's windows and doors
were boarded up and that he never saw evidence of a later
break-in. Another witness, Cody Northern, is involved in PIE
and helped maintain the trailer. He testified that two break-
ins or attempted break-ins occurred before the major break-
in, but he could not identify the date when any of the break-
ins had occurred. His mother, Mary Northern, testified that
more than one break-in occurred, and her testimony primar-
ily is consistent with her son's that the break-ins preceded
the major break-in in December. One part of her testimony,
however, may permit a weak inference that some break-ins
occurred after December 2005.9 Finally, at the disciplinary

9 In response to the accused's question whether she remembered him mention-
ing break-ins after the December 2005 break-in, Mary Northern said she couldn't

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hearing, the accused sought to clarify his response to the trial
court in July. He testified that,

"in responding in court that day about the later burglaries,
what I should have made more clear was the fact that I
don't know when any of the burglaries occurred. I person-
ally don't have that knowledge. The reference that I should
have made clearer is that I became aware of at least two
others after the last-after the April court date."

There are no police reports or other documentation of any
burglaries after December 26, 2005, and we conclude that no
break-ins occurred after that date. The accused's statement
to the court on July 20, 2006, that two burglaries had
occurred after April 20, 2006 was, at a minimum, too broad,
as he later acknowledged.10

The Bar also argues that the accused represented to
the trial court that he was unable to proceed with the case
because of the break-ins. In responding to the court's inquiry
about the status of the case, the accused explained that his
office had been broken into and that his calendar had been
destroyed. Later in the colloquy, he added that he was in the
process of reconstructing the wife's file. The accused offered
that explanation to the court to excuse his failure to submit
the case to arbitration or otherwise proceed with the case
before the final resolution conference. The difficulty with that
explanation, however, is that the accused did not use the
trailer for his legal work after December 26, 2005. At that
point, his file was limited to the petition and information that
the wife had provided him. The wife was able to provide
duplicate copies of most, if not all, the information, and we
find that the December break-in did not prevent the accused
from proceeding with the arbitration in any material way.

More specifically, the court did not send the notice to
the parties directing them to proceed to arbitration until
April 2006. The accused received that notice long after he had

remember the time frame but did remember the accused mentioning things like
the door is just totally shot now. The accused then asked "And that would have
been after the initial," to which Northern replied "Okay."

10 We need not decide whether the accused knowingly made a false statement
to the trial court when he stated that two break-ins had occurred after April 20,
2006. As explained below, we find that the accused's explanation for his inability to
proceed with the case was false and intentional.

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moved his law office out of the trailer, and any break-ins that
occurred at the trailer either before or after the receipt of that
notice did not affect the accused's ability to pursue arbitra-
tion as the court had directed. We find that, when the accused
represented that the break-ins had affected his ability to pro-
ceed with the case, that representation was false. We also
find that the accused acted intentionally in making that mis-
representation; he intended for the court to conclude that he
had been unable to proceed because of a series of break-ins
when that was not true.11

RPC 3.3(a)(1) provides that a "lawyer shall not
knowingly * * * make a false statement of fact or law to a tri-
bunal." Given our factual findings, we conclude that the
accused violated that rule. RPC 8.4(a)(3), by contrast, is not
limited to statements made to tribunals. It provides that a
lawyer shall not "engage in conduct involving dishonesty,
fraud, deceit or misrepresentation that reflects adversely on
the lawyer's fitness to practice law[.]" Cf. In re Carpenter, 337
Or 226, 232, 95 P3d 203 (2004) (explaining that Disciplinary
Rule 1-102(A)(3) applied to misconduct outside the practice of
law that showed that the "lawyer lacks those characteristics
that are essential to the practice of law"). We conclude that,
in the circumstances of this case, the accused's intentional
misrepresentation to the trial court "reflects adversely on
[his] fitness to practice law." We find that the Bar proved
both violations by clear and convincing evidence.

We now turn to the appropriate sanction. As this
court has previously stated, the purpose of attorney disci-
pline is not retributive but is instead designed to protect the
public and the justice system from lawyers who have not, will
not, or are unlikely to properly discharge their professional
duties. In re Paulson, 346 Or at 712. In determining a pre-
sumptive sanction we consider "(1) the ethical duty violated;
(2) the lawyer's mental state; and (3) the actual or potential
injury caused" by the conduct. Id. We then adjust the pre-
sumptive sanction based on the presence of aggravating or

11 Our conclusion that the accused intentionally misrepresented his reasons
for failing to proceed with the case is consistent with the trial panel's credibility
finding. On this issue, the trial panel found that, "[w]hile the Accused denies mak-
ing a false representation to the court, again we find * * * the manner of testimony
to not be credible."

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mitigating circumstances. Id. Finally, we consider whether
the sanction is consistent with Oregon case law. Id.

The accused in this case has violated his duties to his
client and the legal system. The accused's failure to prepare
for the settlement conference and his failure to schedule arbi-
tration breached his duty of diligence to his client. See
American Bar Association's Standards for Imposing Lawyer
Sanctions (1991) (amended 1992) (ABA Standards) 4.4. The
accused's false statements and misrepresentations to the
court at the July 20 court appearance violated his duty to the
legal system. ABA Standard 6.1 ("False Statements, Fraud,
and Misrepresentation").

Regarding the accused's mental state, the trial panel
found that the accused acted intentionally in making false
representations to the court at the July 20 court appearance
and acted knowingly when he appeared unprepared at the
April 20 settlement conference and when he later failed to
schedule arbitration. "'Intent' is the conscious objective or
purpose to accomplish a particular result." ABA Standards
at 7. "'Knowledge' is the conscious awareness of the nature
or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a particular
result." Id. We agree with the trial panel's findings. As dis-
cussed above, given the context and the questions from the
trial court, the accused was aware that the court wanted to
know why arbitration was not scheduled. The accused gave a
dishonest explanation to make the court believe that he
should not be held responsible. In doing so, the accused acted
intentionally. The accused knowingly failed to be prepared
for the conference and failed to schedule arbitration. The
accused was aware of the settlement conference and the
required arbitration but failed to act.

Turning to the question of injury, we find by clear
and convincing evidence that the accused caused both actual
and potential injury. The legal system suffered actual injury
when the accused made false statements to the court. The
court was forced to make decisions based on inaccurate infor-
mation provided by the accused. Any time a court is forced to
make decisions with incomplete or inaccurate information,

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the legal system is harmed. The accused's client and the judi-
cial system suffered, at a minimum, potential injury when
the accused failed to prepare for the settlement conference
and failed to schedule the arbitration, because his actions
potentially delayed the dissolution proceedings.12

With the above in mind, we turn to the presumptive
sanction. The recommended sanctions generally follow the
specific duties violated-in this case, the duty to the client
and the legal system. Suspension is the appropriate pre-
sumptive sanction when an attorney "knowingly fails to per-
form services for a client and causes injury or potential injury
to a client." ABA Standard 4.42(a). When an attorney "know-
ingly engages in * * * conduct that involves dishonesty,
fraud, deceit, or misrepresentation and that adversely
reflects on the lawyer's fitness to practice law[,]" a reprimand
generally is appropriate. ABA Standard 5.13. Without seri-
ous or potentially serious injury, suspension is generally
appropriate when an attorney makes a false statement to a
court. See ABA Standards 6.11-6.12. On balance, we conclude
tentatively that suspension is appropriate in this case.

We next turn to aggravating and mitigating factors.
The Bar identifies four aggravating circumstances. Three are
relatively straightforward: the accused had a selfish motive
in making false representations to cover his own failure to
act, ABA Standard 9.22(b), the accused committed multiple
offenses, ABA Standard 9.22(d), and the accused has sub-
stantial experience in the practice of law, having been admit-
ted to practice in 1976, ABA Standard 9.22(i). We agree that
those factors are present. The other aggravating factor, prior
disciplinary history, ABA Standard 9.22(a), requires greater
discussion.

The accused has a history of admonition and disci-
pline for neglect. The accused's first instance of neglect
occurred in 1987 when he accepted a letter of admonition for
neglecting a legal matter and failing to cooperate with the

12 It is possible that this was also actual injury, but we believe that, in this case,
it is too uncertain for us to say definitively that the dissolution proceeding would
have concluded earlier absent the accused's conduct. The parties eventually settled
on their own terms, and it is unclear on this record whether this would have
occurred earlier.

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disciplinary authority. See In re Jackson (Jackson I), 10 DR
Rptr 199, 202 (1996) (using the 1987 letter of admonition as
an aggravating factor); In re Jackson (Jackson II), 13 DR
Rptr 164, 168 (1999) (same). The accused was disciplined for
similar conduct in 1996. The accused stipulated to a public
reprimand in that proceeding for neglecting a legal matter
when he undertook representation of a probate case but
failed to pursue the case and failed to communicate with the
client. Jackson I, 10 DR Rptr at 201. In 1999, the accused
received a 30-day suspension for failing to return a client's
property and failing to provide an accounting for a retainer
despite repeated requests from the client. Jackson II, 13 DR
Rptr at 164-66.

The accused's history thus consists of a letter of
admonition for neglect, a stipulated reprimand for neglect in
Jackson I, and an adjudicated determination in Jackson II
that the accused failed to return a client's property and failed
to provide an accounting-specific types of neglect related to
the accused's clients. The adjudication in Jackson II is simi-
lar to this case in another respect. In Jackson II, the accused
submitted billing statements to the trial panel to establish
that he had provided an accounting to his clients; however,
the trial panel found in that case that "the monthly billing
statements provided by the Accused were never sent to [his
clients]." 13 DR Rptr at 166. In this case, the accused identi-
fied an exhibit in the disciplinary proceeding- a copy of a
marked calendar response-as support for his testimony that
he had returned that response to the arbitrator. As in
Jackson II, we find that the accused never returned the
response.

With that background in mind, we turn to the appro-
priate weight to give those prior disciplinary actions. A letter
of admonition is not a sanction or part of a prior record of dis-
cipline imposed on a lawyer; however, it " 'can be relevant to
the determination of the appropriate sanction in a subse-
quent proceeding *** because it demonstrates that the
accused lawyer has engaged in [similar] misconduct in the
past.'" In re Bettis, 342 Or 232, 241, 149 P3d 1194 (2006)
(quoting In re Cohen, 330 Or 489, 500, 8 P3d 953 (2000)). Sim-
ilarly, the weight that we give stipulated reprimands has
varied with the context of each case. See Koch, 345 Or at 457

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(declining to give great weight to a single stipulated repri-
mand because of the multiple reasons that lawyers may
agree to relatively light sanctions); In re Knappenberger, 340
Or 573, 585, 135 P3d 297 (2006) (even though the accused
had committed multiple previous violations, the stipulated
reprimand involved dissimilar conduct). In this case, the
accused has a history of neglectful conduct and a history of
gradually escalating responses (a letter of admonition, a stip-
ulated reprimand, and a 30-day suspension); as an integral
part of that history, the stipulated reprimand in 1996 takes
on greater significance.

The accused does not identify any mitigating factors.
The Bar notes, however, that the prior disciplinary offenses
were remote in time, and the trial panel found that the
accused represented the wife pro bono when she could not
otherwise obtain legal counsel.13 Although mitigating factors
are present, we find that the aggravating factors, including
the numerous instances of prior discipline, outweigh the mit-
igating factors.

We finally turn to our own precedent. This case
involves both client neglect and misrepresentations to the
court. As this court recently noted, in "disciplinary cases
involving dishonesty and misrepresentation, this court has
ordered sanctions ranging from six-month suspensions to
disbarment." In re Wilson, 342 Or 243, 251, 149 P3d 1200
(2006). Similarly, "the court has imposed sanctions ranging
from a 60-day to a one-year suspension when a lawyer's
neglect and inattention has resulted in lost opportunities for
his or her client."14 Koch, 345 Or at 458.

The Bar argues that this case is similar to In re
Worth, 337 Or 167, 92 P3d 721 (2004). In Worth, a lawyer
neglected a legal matter and made misrepresentations to the
court, ultimately resulting in the dismissal of his client's

18 The trial panel specifically found that the mitigation factor of "cooperative
attitude toward [disciplinary] proceedings," ABA Standard 9.32(e), did not apply
because "the Accused chose to excuse what happened in this case with excuses and
explanations that do not fit the facts[, and] it appears that the Accused was
attempting to 'cover up' for his mistakes." We agree with the trial panel.

14 We note that the lost opportunities in this case, the potential for an earlier
resolution for the wife's case, is speculative; in previous cases, the injury has been
actual and documented lost opportunities, such as dismissal of a case.

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case. Id. at 169-73. This court found four aggravating factors,
including one instance of prior discipline, and four mitigating
factors. Id. at 179-80. This court concluded that the "aggra-
vating factors outweigh[ed] slightly the mitigating ones,"
and, after looking at this court's precedent, suspended the
accused for 120 days. Id. at 180-81.

Worth has some similarities to and differences from
the present case. In Worth, the accused made two misrepre-
sentations and the ultimate result, a dismissal of the
accused's case, was more severe than what occurred in this
case. In this case, the accused made an intentional misrep-
resentation to the court in July, which he compounded by try-
ing to cover up that misrepresentation in the subsequent dis-
ciplinary proceeding. Moreover, the accused's history of prior
instances of neglect and similar conduct, accompanied by
gradually increased responses (admonition, reprimand, and
a 30-day suspension), has not been sufficient to conform his
behavior to ethical standards and demonstrates that a
greater sanction is required here. On balance, we conclude
that the sanction that we imposed in Worth-a 120-day sus-
pension-is also appropriate here.

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