S056471, Opinion — In re Hostetter

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Argued and submitted March 1, accused suspended from practice of law for
150 days, commencing 60 days from date of filing of decision July 29, 2010

In re Complaint as to the Conduct of
D. RAHN HOSTETTER,
Accused.
(OSB Nos. 07-37, 007-161; SC S056471)
238 P3d 13

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CJS, Attorney and Client § 159.

# En Banc

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

Roy Pulvers, Hinshaw & Culertson LLP, Portland, argued
the cause and filed the briefs for the accused.

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

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## PER CURIAM

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

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## PER CURIAM

In this lawyer disciplinary matter, the Bar charged
the accused with ethical violations in two separate matters.
In the Ingle matter, the Bar alleged that the accused violated
the former-client conflict-of-interest rule. The trial panel con-
cluded that the accused violated DR 5-105(C) and RPC 1.9(a)
when, having represented the borrower in the underlying
loan transaction, he subsequently represented the lender in
collecting the loans from the borrower's estate. In the Grohs
matter, the Bar alleged that the accused violated the rule
against misrepresentation. The trial panel concluded that
the accused violated RPC 8.4(a)(3) when he "acquiesced [in]
the removal" of a notarized signature page from one deed and
had it placed on a second deed, which contained a different
legal description, and then had the altered deed recorded. In
part because the accused had been disciplined previously, the
trial panel recommended that he be suspended from the prac-
tice of law for 150 days.

Pursuant to ORS 9.536(1) and Bar Rules of Procedure
(BR) 10.1 and 10.3, the accused seeks review of the trial
panel's conclusions. This court reviews the trial panel deci-
sion de novo. ORS 9.536(2); BR 10.6. The Bar must establish
misconduct by clear and convincing evidence. BR 5.2. Clear
and convincing evidence means "evidence establishing that
the truth of the facts asserted is highly probable." In re
Cohen, 316 Or 657, 659, 853 P2d 286 (1993). As to the Ingle
matter, we conclude that the accused violated DR 5-105(C)
and RPC 1.9(a). As to the Grohs matter, we conclude that the
accused violated DR 1-102(A)(3) and RPC 8.4(a)(3).1 We
impose a suspension of 150 days.

## I. FACTS AND PROCEDURAL HISTORY

### A. The Ingle Matter

In the mid 1990s, the accused represented Pearl
Ingle in obtaining a series of loans from Andrew Hohn and

1 The Oregon Rules of Professional Conduct (RPC) became effective January 1,
2005. The Disciplinary Rules (DRs) of the Oregon Code of Professional Responsibility
apply to conduct before that date. In re Fitzhenry, 343 Or 86, 88 n 1, 162 P3d 260
(2007). Because the accused's conduct in these matters occurred both before and
after January 1, 2005, both the DRs and the RPC apply.

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drafted the documents to evidence and secure those loans.
The documents included several promissory notes and a
mortgage in favor of Hohn on certain property owned by Ingle
(loan transactions). The accused also represented Ingle in
obtaining from Hohn partial releases of the mortgage secur-
ing the loans. In 2004, Ingle died, and her daughter was
appointed personal representative of Ingle's estate. Ingle's
will directed that all her "just debts and liabilities" be "fully
paid."

During 2004 and 2005, the accused represented
Hohn in collecting the outstanding loans that Hohn had
made to Ingle during her lifetime (the debt collection).2 In
particular, the accused asserted a probate claim on Hohn's
behalf against Ingle's estate based on the promissory notes
and mortgages that he had previously prepared for Ingle.
The personal representative disallowed the claim. The
accused then demanded that the personal representative pay
Hohn $81,519.29 or execute a new promissory note for that
amount, or the accused would initiate a foreclosure action
against Ingle's property-the same property at issue in the
mortgages that the accused had prepared on Ingle's behalf.

Eventually, the accused brought an action against
Ingle's estate asserting claims for breach of contract, action
on promissory notes, and judicial foreclosure of real property.
The personal representative challenged Hohn's claims, argu-
ing that some loans were barred by the statute of limitations,
were unsupported by documentation, or had already been
repaid. The parties ultimately settled the claims for
$52,660.64.

The personal representative registered a complaint
with the Bar. The Bar charged the accused with violating DR
5-105(C) (subsequently representing a client in the same or a
significantly related matter as a former client when the inter-
ests of the current and former clients are in actual or likely
conflict) and RPC 1.9(a) (representing a client in the same or
substantially related matter as a former client in which the

2 The accused did not obtain informed consent, confirmed in writing, from
either the personal representative or Hohn before representing Hohn against the
estate.

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current client's interests are materially adverse to the inter-
ests of the former client without obtaining informed consent,
confirmed in writing). The trial panel concluded that the
accused violated the foregoing provisions.

### B. The Grohs Matter

Anna Grohs purchased property from Oliver and
Christie Wilde in 2003. The property consisted of four par-
cels. Grohs defaulted on a payment, and the Wildes initiated
a foreclosure proceeding. Grohs obtained a bank loan to pay
the Wildes, and the parties discussed entering into a new
agreement in which the Wildes would accept the proceeds of
the bank loan in exchange for releasing parcel 3.

The Wildes retained the accused to represent them
in negotiating the new agreement with Grohs. In November
2004, the accused faxed Grohs a letter setting out the terms
of the new agreement. The letter enclosed for Grohs's signa-
ture a Deed in Lieu of Foreclosure for parcels 1, 2, and 4 (deed
on three parcels) and a promissory note for the remaining
balance. In a handwritten postscript, the accused informed
Grohs that, to cancel the foreclosure sale, Grohs would also
need to sign a Deed in Lieu of Foreclosure on all four parcels
(deed on four parcels). Apparently, the deed on four parcels
was necessary to protect the Wildes in case Grohs's loan did
not close. In a later fax, the accused assured Grohs that, if
Grohs's loan closed, the foreclosure would be cancelled and
the accused would destroy the deed on four parcels. However,
if the loan did not close, the accused would record the deed on
four parcels rather than the deed on three parcels.

Grohs signed and notarized the deed on four parcels.
The accused immediately cancelled the foreclosure sale.
Grohs's bank loan closed a few weeks later, and parcel 3 was
reconveyed to Grohs.

The accused was scheduled to be away on vacation
the next week. Before he left, he arranged for the Wildes to
come to the office during his absence and execute the remain-
ing documents, including the deed on three parcels. The
accused reviewed the documents that the Wildes were to sign
and dictated a letter to Grohs, sent the next day, informing

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her that the deed on three parcels would be recorded that
day.

There is no record that Grohs ever signed the deed
on the three parcels. Instead, the signature page from
the deed on four parcels-containing Grohs's notarized
signature-was affixed to the deed on three parcels. The
Wildes executed the deed on three parcels, and the deed was
sent for recording. Due to unrelated errors in the paperwork,
the deed was resent for recording at least two times, and was
eventually recorded sometime after January 1, 2005.3

About two years later, Grohs discovered that her sig-
nature from the deed on four parcels had been affixed to the
deed on three parcels, and she complained to the Bar. The
accused responded by letter to Grohs's complaint. In that let-
ter, the accused acknowledged that he attached the signature
page from the deed on four parcels to the deed on three par-
cels, but asserted that he had Grohs's permission to do so:

"Ms. Grohs was under time pressure to get her loan
closed. I told Ms. Grohs by telephone that I would send her
the documents. I told her that the Promissory Note did not
need to be notarized, but the [deed on three parcels] did
need to be notarized. I told her that, if she wanted to avoid
the hassle of going to a notary again, I could use the deed
she signed previously and substitute the legal description of
Parcels 1, 2 and 3 in place of the legal description for
Parcels 1,2,3, and 4. She agreed."

The Bar charged the accused with violating DR 1-
102(A)(3) (conduct involving misrepresentation) and RPC
8.4(a)(3) (conduct involving misrepresentation that reflects
adversely on the lawyer's fitness to practice law).

The accused gave sworn deposition testimony that
confirmed the version of events he gave to the Bar in his let-
ter. In that testimony, he explained:

"All I know is, is that there was a time when we were pres-
sured to-she was pressured. She's the one that was feeling
pressure, not from me, but from wanting to salvage her

3 As recorded, the deed on three parcels contained the signed and notarized sig-
nature page from the deed on four parcels, but the unsigned page from the deed on
three parcels was still attached.

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interest in the property, to have all the documents signed.
And [there] were Fed-Ex exchanges. And somewhere in
there, there was an agreement to, for time's sake, to use,
since she had already signed, the [deed on four parcels]."4

The accused also testified that it was not Grohs's idea to
switch the pages, but his own:

"No, she wouldn't have thought of that. I think that, and I'm
pretty confident of this, I just think I suggested an option
that I can send this to you, but guess what, it reads the
same and so we could just change the legal description."

Contrary to his letter to the Bar and his deposition
testimony, the accused testified at the disciplinary hearing
that he first learned of the switched signature pages when
the Bar informed him of Grohs's complaint against him. The
accused also testified that he did not know how the signature
page from the deed on four parcels became attached to the
deed on three parcels. Faced with the fact that his billing
records and documentation revealed no discussion with
Grohs about affixing the signature page from the deed on
four parcels to the deed on three parcels, the accused con-
ceded that he had merely speculated that he and Grohs dis-
cussed saving her a trip to the notary, and that he had
assumed that they discussed it because he "would not ever do
anything like that without her agreement." The accused
opined that his staff possibly "just mixed it up" because the
accused was gone on vacation at the time and his legal assis-
tant told him that he did not instruct her to affix the signa-
ture page from the deed on four parcels to the deed on three
parcels.

4 The accused contends that the Bar improperly relies on the accused's depo-
sition testimony because the Bar did not enter the testimony into evidence, but,
rather, read portions of the testimony into the record at the hearing. When the Bar
read the above portion of the testimony into the record, the accused immediately
responded with, "I know I prefaced that by saying, 'I don't remember this.' I'm sure
if we looked back, there would have been [a] preface to that to say, 'I don't have an
independent recollection of much of this at all.'" The accused thus argues that the
Bar improperly relies on portions of his deposition testimony out of context.

We disagree with the accused. The accused never requested that any addi-
tional portion of the deposition testimony be read into the record to confirm that he
in fact did not, at the time, recall the events he testified to in detail during his dep-
osition. In all events, even without relying on the deposition testimony in this case,
we would reach the same conclusion based solely on the accused's letter to the Bar.

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The trial panel found that "the [a]ccused or someone
in his office" removed the notarized signature page from the
deed on four parcels, attached it to the deed on three parcels,
and had it recorded. The trial panel thus concluded that the
accused violated RPC 8.4(a)(3). The trial panel did not
address whether the accused also violated DR 1-102(A)(3) as
charged by the Bar.5

Based on the above violations, the trial panel con-
cluded that the appropriate sanction in this case was a
150-day suspension.

## II. DISCUSSION

### A. Ingle Matter

The accused seeks review of the trial panel's decision
that he violated DR 5-105(C) and RPC 1.9(a) in the Ingle
matter. DR 5-105(C) prohibits an attorney, after represent-
ing a former client in a matter, from representing another cli-
ent "in the same or a significantly related matter when the
interests of the current and former clients are in actual or
likely conflict." RPC 1.9(a) similarly prohibits an attorney,
after representing a former client in a matter, from repre-
senting another person "in the same or a substantially
related matter in which that person's interests are materially
adverse to the interests of the former client unless each
affected client gives informed consent, confirmed in writing."

In this case, the Bar has charged that the accused's
representation of Hohn, without obtaining informed consent,
confirmed in writing, from the estate and Hohn, constituted a
former-client conflict of interest in violation of both DR 5-
105(C) and RPC 1.9(a). On review, the Bar contends that the
accused represented Ingle in a matter and then later repre-
sented Hohn in the same or a substantially related matter
when Ingle's surviving interests were materially adverse to
Hohn's interests because of their former relationship as
debtor and creditor. The accused responds that Ingle had no
interests because she was deceased; the debt collection was

" The Bar pleaded violations of both DR 1-102(A)(3) and RPC 8.4(a)(3) in its
second amended complaint and presented facts establishing that the accused's con-
duct occurred both before and after January 1, 2005. Accordingly, it appears that
the trial panel's lack of a finding regarding DR 1-102(A)(3) was merely inadvertent.

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not the same matter as, or substantially related to, the loan
transactions; and Hohn's and Ingle's interests therefore were
not materially adverse. We turn to those arguments.

1\. Whether a deceased client is a "former client" for pur-
poses of the former-client conflict-of-interest rules

As a threshold matter, we must first determine
whether it is possible for an attorney to violate the former-
client conflict-of-interest rules when his or her former client
is deceased. The accused essentially contends that no viola-
tion was possible because Ingle, his former client, is
deceased, and, accordingly, cannot have interests adverse to
Hohn, and cannot suffer injury from the subsequent repre-
sentation. The Bar responds that a deceased client's interests
survive his or her death. In particular, the Bar contends that,
in this case, Ingle's surviving interests are expressly
described in her will.

This case presents a matter of first impression in
Oregon-that is, whether a former client, now deceased, is
protected by the former-client conflict-of-interest rules.
Oregon is not alone, as no jurisdiction appears to have
directly addressed the issue. At best, a few jurisdictions have
addressed the related issue of whether dissolved corporations
are "clients" for purposes of the former-client conflict-of-
interest rules. Those jurisdictions are split on the issue. Some
jurisdictions hold that, upon a corporation's dissolution, a
conflict of interest cannot exist, because the entity is "dead,"
no longer exists, and, accordingly, cannot have interests
adverse to the current client. See, e.g., Bagdan v. Beck, 140
FRD 660, 667 (D NJ 1991) (holding that, because the former
client of the accused (the corporation) for all intents and pur-
poses is "dead," the former-client conflict rule does not apply).
Conversely, other jurisdictions hold that a bankruptcy trus-
tee "stands in the shoes" of the corporation as former client,
and the accused in later litigation may not represent an
interest adverse to the successors in interests of the failed
corporation. See, e.g., FDIC v. Berry, No 1-85-62 (ED Tenn,
June 10, 1985) (as discussed in Bagdan, 140 FRD at 666,
with full opinion attached as Appendix Exhibit 1) (disquali-
fying counsel for former officers and directors of defunct cor-
poration because those attorneys previously had represented
corporation).

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The other context in which courts have addressed
whether a client's interests survive his or her death arises in
criminal cases, in which an attorney or firm represents a
criminal defendant after having previously represented the
victim-now deceased-on unrelated criminal charges. See,
e.g., State ex rel S.G., 175 NJ 132, 134-35, 814 A2d 612, 614
(2003) (holding that a current-client conflict of interest
existed when firm represented both the defendant and his
victim in unrelated criminal matters, even after the victim's
death, during the two-week period before the victim's matter
was terminated).6 The issue in those cases centered on
whether the former representation of the victim in the unre-
lated criminal matter prevented constitutionally adequate
representation of the criminal defendant in the subsequent
criminal proceeding. That is, the issue was whether a conflict
of interest created such a division of loyalty that the attorney
could not provide the adequate representation of the current
client that the constitution requires. Here, we must deter-
mine whether a conflict of interest exists such that the attor-
ney violates a disciplinary rule that protects the interests of
the former client. Accordingly, the two contexts are qualita-
tively distinct, and the former provides little guidance in
answering the latter.

We thus turn to the former-client conflict-of-interest
rules themselves to determine whether those rules' protec-
tions extend to former clients who are deceased. In interpret-
ing a disciplinary rule, this court looks to the wording of the
rule, read in context. See In re Haws, 310 Or 741, 746-48, 801
P2d 818 (1990) (using that methodology to interpret discipli-
nary rule, focusing on meaning of rule's key words). DR 5-
105(C) provides, in part:

"Except as permitted by DR 5-105(D), a lawyer who has
represented a client in a matter shall not subsequently rep-
resent another client in the same or a significantly related

6 See also Mickens v. Taylor, 535 US 162, 176-78, 122 S Ct 1237, 152 L Ed 2d
291 (2002) (Kennedy, J., concurring) (agreeing with majority's denial of ineffective
assistance of counsel claim based on assertion of conflict of interest when peti-
tioner's counsel previously represented the deceased victim; noting that, although
petitioner's counsel's belief that his duty to the deceased victim ended upon the vic-
tim's death "may have been mistaken," petitioner's counsel's prior representation
of the victim did not influence the choices he made during the course of the trial).

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matter when the interests of the current and former clients
are in actual or likely conflict."

(Emphasis added.) DR 5-105(D) provides an exception when
"both the current client and the former client consent to the
representation after full disclosure."

RPC 1.9(a) provides:

"A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the
same or a substantially related matter in which that per-
son's interests are materially adverse to the interests of the
former client unless each affected client gives informed con-
sent, confirmed in writing."

### (Emphasis added.)

The wording of those rules focuses on the interests of
the former client. That focus supports the Bar's position that,
because a client's interests can and often do survive a client's
death, the rules' protections extend to a former client even
after his or her death. But it is not just any interests of the for-
mer client that must survive. In the context of the discipli-
nary rule, it is the former client's interests that pertain to the
matter in which the lawyer previously represented the for-
mer client. It is those interests that must survive the former
client's death.

The rules also require that the former client's inter-
ests "are" in actual or likely conflict with (DR 5-105(C)) or
materially adverse to (RPC 1.9(a)) the current client's inter-
ests. Accordingly, the attorney must assess whether the per-
tinent interests of the deceased former client will be adverse
to the interests of the subsequent client during the subse-
quent representation. That is, the proper analysis is not
whether the interests of the former and current client were
adverse during the former client's lifetime, but whether the
surviving interests of the former client are adverse to the cur-
rent client during the subsequent representation.

In sum, we conclude that, pursuant to DR 5-105(C)
and RPC 1.9(a), an attorney is prohibited from engaging in a
former-client conflict of interest even when the former client
is deceased, as long as the former client's interests survive
his or her death and are adverse to the current client during

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the subsequent representation. Having determined that a
deceased client may be a former client for purposes of the
former-client conflict-of-interest rules, we turn to whether
the Bar proved the necessary elements under those rules.

2\. Whether the loan transaction and debt collection is
the same or a substantially related matter

The accused contends that there is no former-client
conflict of interest because the loan transaction and the debt
collection is not the same or a substantially related matter.
The Bar disagrees. According to the Bar, the loan transaction
and the debt collection are the same matter because the
accused "represented Ingle's interests as borrower in enter-
ing into various obligations, including promissory notes, with
Hohn" and then "sought to enforce those same obligations,
but this time on behalf of Hohn, the lender." Alternatively,
the Bar argues that the debt collection is substantially
related to the loan transaction. Because, as explained below,
we determine on this record that the loan transaction and the
debt collection are both significantly and substantially
related, we need not determine whether the matters are the
"same."

We first consider whether the loan transactions and
debt collection are "significantly related" under DR 5-105(C).
Matters are "significantly related" for purposes of DR 5-
105(C) if either:

"(1) Representation of the present client in the subse-
quent matter would, or would likely, inflict injury or dam-
age upon the former client in connection with any proceed-
ing, claim, controversy, transaction, investigation, charge,
accusation, arrest or other particular matter in which the
lawyer previously represented the former client; or

"(2) Representation of the former client provided the
lawyer with confidences or secrets * * * the use of which
would, or would likely, inflict injury or damage upon the
former client in the course of the subsequent matter."

DR 5-105(C)(1), (2).

This court first defined the term "significantly
related" in In re Brandsness, 299 Or 420, 430-31, 702 P2d
1098 (1985). In Brandsness, this court explained that

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"the principle embodied in the concept of 'significantly
related' matters consists of two subtests:

"a. Matter Specific.

"Representation of the present client in the subsequent
matter would, or would likely, inflict injury or damage upon
the former client in any matter in which the lawyer previ-
ously represented the former client; or

"b. Information Specific.

"Representation of the former client provided the law-
yer with confidential information the use of which would, or
would likely, inflict injury or damage upon the former client
in the subsequent matter."

Id. (emphasis in original). This court clarified that matter-
specific conflicts are "keyed to a particular matter," while
information-specific conflicts are "based on particular infor-
mation." Id. at 431.

When DR 5-105(C) was later promulgated, it largely
codified the definition of "significantly related" that this court
had formulated in Brandsness. In re McKee, 316 Or 114, 129,
849 P2d 509 (1993) ("[t]he new rules codified this court's
holding in In re Brandsness"); see also Kidney Association of
Oregon v. Ferguson, 315 Or 135, 140 n 7, 145 n 13, 843 P2d
442 (1992) (observing that DR 5-105 "since has been
amended, but its effect essentially is the same," and that
"changes in DR 5-105 reflect an evolution of terminology
rather than substance"). Accordingly, this court's definition
of "significantly related" in Brandsness is relevant to this
court's interpretation of that term under DR 5-105(C).

The Bar contends that the matters in this case are
"significantly related" because the accused engaged in a
matter-specific conflict under DR 5-105(C)(1). That is,
according to the Bar, "[t]o the extent there was, or even could
have been, a dispute * * * as to the validity of the loans or the
amounts due, the [a]ccused's pursuit of Hohn's interests
would, or would likely, inflict injury or damage upon Ingle."7

7 The Bar does not contend that the accused engaged in an information-specific
conflict under DR 5-105(C)(2). That is, the Bar does not appear to contend on
appeal, nor did it contend before the trial panel, that the accused's representation
of Ingle provided the accused "with confidences or secrets * * * the use of which

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In several cases decided before Brandsness, this
court consistently held that a former-client conflict of interest
exists when an attorney represents a former client in a trans-
action and then subsequently represents another client in
enforcing his or her rights arising out of that same trans-
action. See In re Holmes, 290 Or 173, 182-84, 619 P2d 1284
(1980) (improper for attorney to represent former client in
negotiating settlement of debt, and then represent subse-
quent client in suing former client to collect that same debt);
In re Brownstein, 288 Or 83, 87, 602 P2d 655 (1980) (an attor-
ney cannot represent a former client in a transaction and
then subsequently represent another client in an attempt to
enforce his or her rights arising out of that same transaction);
In re Mumford, 285 Or 559, 561-62, 591 P2d 1377 (1979) (pat-
ent conflict of interest existed when attorneys represented
husband in divorce and then, on behalf of wife's new spouse,
sought to collect against husband the payments under the
settlement that had been negotiated while the attorneys rep-
resented him). In articulating the test for "significantly
related" matters in Brandsness, this court described those
cases as "such egregious conflicts that we could decide them
without searching for the boundary between the acceptable
and unacceptable that closer cases * * * require us to locate."
299 Or at 430. Later, after DR 5-105(C) was promulgated,
this court reaffirmed that, under the matter-specific-conflict
subtest for "significantly related" matters, an attorney who
represented a former client in a transaction may not then
represent another client in enforcing his rights arising out of
that same transaction. McKee, 316 Or at 129-30 (relying on
DR 5-105(C)(1), slander of title action was "significantly
related" to earlier dissolution proceeding because the accused
attempted to enforce provisions of dissolution judgment that
he drafted on behalf of former client).

would, or would likely, inflict injury or damage" upon Ingle in the course of the sub-
sequent matter under DR 5-105(C)(2).

In any event, we note that DR 5-105(C)(2) requires that an attorney have come
into actual possession of client confidences. See id. ("Representation of the former
client provided the lawyer with confidences or secrets * * *. " (Emphasis added.)).
There is nothing in the record in this case that suggests that the accused obtained
actual possession of any confidential information in representing Ingle in the loan
transactions that would, or would likely, inflict injury or damage upon Ingle in the
course of representing Hohn in the debt collection.

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Against that backdrop, we have no trouble conclud-
ing that the accused engaged in a matter-specific conflict in
this case and, thus, the matters are "significantly related" for
purposes of DR 5-105(C)(1). Here, the accused, in the loan
transactions, drafted several promissory notes and mort-
gages on behalf of Ingle in obtaining loans from Hohn. He
then, in the debt collection, subsequently represented Hohn
in enforcing his rights arising out of those same documents.
Such an "egregious conflict" leaves us with no doubt that the
accused's representation of Hohn in the debt collection
"would, or would likely" inflict injury or damage upon Ingle in
connection with the loan transactions.

The accused nonetheless argues that the matters are
not "significantly related," reasoning that Ingle could not be
injured or damaged by the subsequent representation,
because she was deceased. As noted, matters are "signifi-
cantly related" under DR 5-105(C)(1) when, as pertinent
here, representation of the present client in the subsequent
matter "would, or would likely, inflict injury or damage upon
the former client[.]" (Emphasis added.) The wording of that
portion of the rule focuses on the former client, and not on the
interests of the former client. That focus-at first blush-
could support the accused's contention that, once a client is
deceased, he or she could not be injured or damaged and,
thus, matters could not be significantly related under DR 5-
105(C). However, that definitional provision must be under-
stood in the context of the prohibition itself, which arises
when, in connection with the subsequent representation, the
"interests" of the current and former client are in actual or
likely conflict. Given that context, the injury or damage to the
former client to which the definition necessarily refers is
injury or damage to the former client's interests. Indeed, we
can conceive of no other way a lawyer's representation may
injure a former client than through his or her interests. That
is, conflict of interest rules are just that-they protect the cli-
ent's interests; they do not intend to protect clients from, for
example, physical injury or assault. Accordingly, a deceased
client may be injured within the meaning of the rule if, as
previously noted, his or her surviving interests may be
harmed by the subsequent representation.

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In this case, Ingle's interests in the loan transactions
were those of a debtor-to minimize her legal debt as much
as possible as is reasonable within the bounds of the law.
Those interests survived Ingle's death and were represented
by her personal representative. See ORS 114.265 (personal
representative has fiduciary duty to preserve estate with as
little sacrifice of value as is reasonable under the circum-
stances). Ingle's will also expressly stated that she would
fully pay her "just" debts. On the other hand, as the accused
himself acknowledged, Hohn's goal in the debt collection was
to collect "as much as possible pursuant to the promissory
notes and even some loans under which there were no
notes[.]" Thus, the accused's representation of Hohn "would,
or would likely" injure or damage Ingle's surviving interests
in the loan transactions in violation of DR 5-105(C).

We turn to whether the matters are "substantially
related" pursuant to RPC 1.9(a). Whether the analysis under
RPC 1.9(a) differs from DR 5-105(C) depends on whether the
term "substantially related" differs in meaning from "signifi-
cantly related." At the time of the accused's conduct, RPC
1.9(a) provided no definition of "substantially related." RPC
1.9 (2005).8 The new rule thus did not contain the definition
previously set out in DR 5-105(C).

The term was changed from "significantly related"
to "substantially related" when the Oregon Rules of
Professional Conduct were adopted on December 1, 2004,
effective January 1, 2005. Order Adopting the Oregon Rules
of Professional Conduct, Chief Justice Order No. 04-44

8 The rule was amended effective December 1, 2006, to add the following defi-
nition of "substantially related":

"For purposes of this rule, matters are 'substantially related' if (1) the law-
yer's representation of the current client will injure or damage the former cli-
ent in connection with the same transaction or legal dispute in which the law-
yer previously represented the former client; or (2) there is a substantial risk
that confidential information as would normally have been obtained in the
prior representation of the former client would materially advance the current
client's position in the subsequent matter."

RPC 1.9(d); Order Amending Oregon Rules of Professional Conduct, Chief Justice
Order No. 06-059 (Nov 16, 2006), Oregon Appellate Advance Sheets No. 26 (Dec 18,
2006) at A-19. Because the accused's conduct preceded the effective date of the
amendment, that definition does not apply in this case.

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(Dec 1, 2004), Oregon Appellate Advance Sheets No. 1 (Jan 3,
2005) at A-3, A-16. Although RPC 1.9 (2005) provides no com-
mentary to explain why the term was changed from "signifi-
cantly related" to "substantially related," the wording tracks
that of ABA Model Rule 1.9(a). See ABA Model Rule 1.9(a)
(2002) (former-client conflict of interest exists when matters
are the same or "substantially related" and the interests of
the former and current client are "materially adverse").
Before the adoption of the RPCs, Oregon's former-client
conflict-of-interest rule was distinct from both the ABA
Model Rule and the rule adopted in many states because it
used the term "significantly related" rather than "substan-
tially related," and it used an actual and likely conflict para-
digm rather than requiring that the interests be "materially
adverse." American Bar Association and Bureau of National
Affairs, Inc., ABA/BNA Lawyers' Manual on Professional
Conduct § 51:205 (2002) ("Oregon's ethics code has a unique
provision on former-client conflicts" because it uses the term
"significantly related" and an actual/likely conflict para-
digm.). However, after the RPC was adopted, Oregon's rule
became nearly identical to ABA Model Rule 1.9(a).9

Because RPC 1.9(a) (2005) does not define the term
"substantially related," and because it tracks the text of the
ABA Model Rule, we look to the commentary of the ABA
Model Rules for guidance. In particular, Comment [3] to ABA
Model Rule 1.9(a) (2002) provides a definition of "substan-
tially related" for purposes of that rule:

"Matters are 'substantially related' for purposes of this
Rule if they involve the same transaction or legal dispute or
if there otherwise is a substantial risk that confidential fac-
tual information as would normally have been obtained in
the prior representation would materially advance the cli-
ent's position in the subsequent matter."

That definition is not binding on this court, but we consider it
for its persuasive value.

9 The only difference between RPC 1.9(a) and ABA Model Rule 1.9(a) is that
RPC 1.9(a) allows an exception if the attorney obtains informed consent, confirmed
in writing, from each affected client, while ABA Model Rule 1.9(a) requires
informed consent, confirmed in writing, from only the former client.

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The "substantial relationship" test from the ABA
Model Rule can be broken down into two subtests:

(1) whether the matters "involve the same transaction
or legal dispute"; or

(2) whether there otherwise is "a substantial risk that
confidential factual information as would normally have
been obtained in the prior representation would materially
advance the client's position in the subsequent matter."

(Emphasis added.) In a sense, the ABA Model Rule can be
characterized as dealing with matter-specific conflicts and
information-specific conflicts, as did DR 5-105(C). Yet, each
subtest under the ABA Model Rule appears to be broader
than the subtests under DR 5-105(C).

Unlike DR 5-105(C)(1), to constitute a matter-
specific conflict under ABA Model Rule 1.9(a), a risk of injury
is not required; rather the matters must merely involve the
same transaction or legal dispute. The main concern appears
to be disloyalty to the former client. ABA/BNA Lawyers'
Manual on Professional Conduct § 51:226. It is generally, if
not universally, accepted that a "current representation
adverse to a former client is substantially related to the ear-
lier representation if it involves the lawyer's own work for the
former client-especially an attack on that work." Id .; see
also Restatement of Law Governing Lawyers § 132(1) (2000)
(a current matter is substantially related to an earlier matter
if "the current matter involves the work the lawyer per-
formed for the former client").

To constitute an information-specific conflict under
ABA Model Rule 1.9(a), unlike DR 5-105(C)(2), actual posses-
sion of client confidences is not necessary. See discussion 348
Or at 586-87 n 7 (explaining that DR 5-105(C)(2) requires
actual possession of client confidences). Rather, it is enough if
there is a substantial risk that confidential factual informa-
tion as would normally have been obtained in the prior rep-
resentation would materially advance the client's position in
the subsequent matter. The ABA Model Rule protects the for-
mer client from having to reveal the confidential information
learned by the lawyer. The focus thus is on the risk of infor-
mation gained "based on the nature of the services the lawyer
provided the former client and information that would in

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ordinary practice be learned by a lawyer providing such serv-
ices." Comment [3] to ABA Model Rule 1.9(a); see also
Richard E. Flamm, Lawyer Disqualification: Conflicts of
Interest and Other Bases § 8.4, 148 (2003) (policy against
requiring former client to show precisely what confidences
were used against her includes avoiding extensive inquiries
into privileged areas).

As previously noted, the Bar did not argue that the
accused came into actual possession of client confidences.
Neither did it argue that the accused's conduct created a sub-
stantial risk that confidential factual information as would
normally have been obtained in the prior representation
would materially advance Hohn's position in the subsequent
representation. We thus confine our focus on whether the
matters are "substantially related" under RPC 1.9(a) based
on whether the accused engaged in a matter-specific conflict.
We conclude that they are. The debt collection and loan
transactions certainly involved the same transaction-the
underlying loan documents that the accused drafted on
behalf of Ingle. The accused's representation of Hohn
involved his own work that he had completed on behalf of
Ingle and, in that regard, the matters are substantially
related.10 We therefore determine that the accused engaged
in a matter-specific conflict in violation of RPC 1.9(a).

3\. Whether Ingle's surviving interests were adverse
to Hohn's interests during the subsequent repre-
sentation

A conflict of interest exists under RPC 1.9(a) when
the current client's interests "are materially adverse to the
interests of the former client." A conflict of interest exists

10 The accused disagrees and contends that, to establish a matter-specific con-
flict pursuant to RPC 1.9(a), the Bar is required to prove actual injury-that is, the
Bar is required to prove that the estate paid more than the fair value of Hohn's
claims as a result of the accused's representation of Hohn. The accused's premise
and conclusion are incorrect. The accused relies on language in RPC 1.9(d)(1) (mat-
ters are "substantially related" if the lawyer's representation of the current client
"will injure or damage the former client"), a subsection of the rule that, as noted,
348 Or at 589 n 8, was not adopted until after the accused engaged in the conduct
at issue. We therefore decline to address the accused's argument in that respect.

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under DR 5-105(C) when the interests of the current and for-
mer clients "are in actual or likely conflict." An "actual con-
flict of interest" exists when "the lawyer has a duty to contend
for something on behalf of one client that the lawyer has a
duty to oppose on behalf of another client." DR 5-105(A)(1). A
" 'likely conflict of interest' exists in all other situations in
which the objective personal, business or property interests
of the clients are adverse." DR 5-105(A)(2). "A 'likely conflict
of interest' does not include situations in which the only con-
flict is of a general economic or business nature." Id. So
framed, the analysis under RPC 1.9(a) and DR 5-105(C) is not
materially distinct.

The Bar contends that Ingle's surviving interests
and Hohn's interests were per se materially adverse and pat-
ently in conflict due to their former relationship as debtor
and creditor. We agree. As previously discussed, Ingle's inter-
ests in the loan transactions as debtor-i.e., to minimize her
legal debt as much as reasonably possible within the bounds
of the law-survived Ingle's death and were represented by
her personal representative. 348 Or at 589. On the other
hand, Hohn's interests as creditor in the debt collection were
to maximize the amount that Ingle owed under the loans as
much as was reasonable within the bounds of the law and to
collect as much of that amount as possible. Those interests
are "different" and "adverse." See In re Wittemyer, 328 Or
448, 455, 980 P2d 148 (1999) (conflict of interest existed when
a lawyer represented both the lender and borrower in a loan
transaction); In re Moore, 299 Or 496, 506, 703 P2d 961
(1985) (debtor and creditor had different interests). Thus,
Ingle's surviving interests and Hohn's interests were in likely
conflict and materially adverse during the subsequent
representation.

The accused disagrees, contending that Ingle's and
Hohn's interests were not adverse because the Bar failed to
prove that Hohn actually sought to collect on any loans that
were not "just." According to the accused, the Bar's assertions
that Hohn sought to collect on undocumented loans or loans
beyond the statute of limitations are not supported by the
record.

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The accused conflates "adversity" with "injury." The
rules against conflicts of interest require an attorney to
assess whether the interests of the former and prospective
new client are adverse at the time the attorney seeks to
undertake the subsequent representation. Ingle's surviving
interests and Hohn's interests as debtor and creditor were
adverse from the outset. Whether the subsequent represen-
tation ultimately caused actual injury to Ingle is an inquiry
relevant to sanctions, and not to whether Ingle and Hohn's
interests are adverse or in conflict. See American Bar
Association's Standards for Imposing Lawyer Sanctions 7
(1991) (amended 1992) (ABA Standards) (defining actual and
potential injury for purposes of sanctions).

In sum, we find that the debt collection was signifi-
cantly and substantially related to the loan transactions and
Hohn's interests were in likely conflict with and materially
adverse to Ingle's surviving interests during the subsequent
representation. We therefore conclude that the accused vio-
lated both DR 5-105(C) and RPC 1.9(a) in the Ingle matter.

### B. Grohs Matter

The Bar alleged that the accused engaged in misrep-
resentation in violation of DR 1-102(A)(3) and RPC 8.4(a)(3)
when the accused removed Grohs's signature page from the
deed on four parcels, attached it to the deed on three parcels,
and then recorded the altered deed. As noted, the trial panel
concluded that the accused violated RPC 8.4(a)(3), but did not
address DR 1-102(A)(3). The accused seeks review of the trial
panel's decision that he violated RPC 8.4(a)(3). On de novo
review, we consider whether the accused's conduct violated
either rule as alleged.

DR 1-102(A)(3) provides: "It is professional miscon-
duct for a lawyer to * * * [e]ngage in conduct involving dis-
honesty, fraud, deceit or misrepresentation[.]" RPC 8.4(a)(3)
provides: "It is professional misconduct for a lawyer to * * *
engage in conduct involving dishonesty, fraud, deceit or mis-
representation that reflects adversely on the lawyer's fitness
to practice law[.]"

A lawyer engages in conduct involving misrepresen-
tation when the lawyer makes a representation, either

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directly or by omission, that the lawyer knows is false and
material. In re Davenport, 334 Or 298, 308, 49 P3d 91, adh'd
to as modified on recons, 335 Or 67, 57 P3d 897 (2002). "A
lawyer acts knowingly by being consciously aware of the
nature or attendant circumstances of the conduct, but not
having a conscious objective to accomplish a particular
result." In re Lawrence, 332 Or 502, 513, 31 P3d 1078 (2001).
A misrepresentation is material if it "would or could signifi-
cantly influence the hearer's decision-making process." In re
Eadie, 333 Or 42, 53, 36 P3d 468 (2001). The accused does not
dispute that, if he knowingly attached the signed and nota-
rized signature page from the deed on four parcels to the deed
on three parcels and sent it for recording, that such represen-
tation was false and material. Neither does the accused dis-
pute that such misrepresentation would reflect adversely on
his fitness to practice law. Rather, the accused's sole conten-
tions are that the Bar failed to establish, by clear and con-
vincing evidence, that he acted (1) through direct, personal
conduct, or (2) with a knowing state of mind.

First, the accused contends that there is "no evi-
dence-and certainly not clear and convincing evidence-of
direct, personal conduct." (Capitalization omitted.) The trial
panel concluded that the accused "acquiesced [in] the
removal of the notarized signature page" from one deed and
had it placed on a second deed. According to the accused, that
conclusion is contradicted by the trial panel's "either/or" find-
ing that "the Accused or someone in his office" (emphasis
added) removed the signature page from the deed on four
parcels and affixed it to the deed on three parcels. The
accused thus contends that the trial panel's "either/or" find-
ing of fact cannot support a conclusion by clear and convinc-
ing evidence that there was any personal misconduct by the
accused.

Second, the accused contends that there is no clear
and convincing evidence that the accused acted with the req-
uisite mens rea of "knowledge." The accused argues that "[a]ll
the evidence points to a mistake by [the accused]'s office in
the filing[.]"

The Bar disagrees and contends that the accused
acted both personally and with the requisite knowledge. The

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Bar relies principally on the accused's letter in response to
the Bar and his deposition testimony, in which the accused
was "clear and unequivocal" that he personally made the sub-
stitution after consulting with Grohs. According to the Bar,
although the accused later changed his story and claimed
that he had no idea how the signature page on the deed on
four parcels became attached to the deed on three parcels, the
trial panel considered the disparate versions provided by the
accused and rejected the new version.

The question of what the accused actually knew thus
hinges on whether this court believes the accused's letter in
response to the Bar and deposition testimony under oath, or
his later equivocations and retractions. This court gives
weight to the trial panel's express credibility assessments.
In re Gustafson, 333 Or 468, 470, 41 P3d 1063 (2002). More
specifically,

"[w]hen a panel's assessment is based on the objective fac-
tors involving the intrinsic believability of competing infer-
ences or evidence-e.g., the inherent improbability of cer-
tain testimony, the existence of corroboration, and so on-
this court owes no deference to that assessment, but the
panel's discussion may be enlightening and have persua-
sive force. When the panel's assessment is based on subjec-
tive observations of a witness's demeanor and the manner
in which the witness testifies, the trial panel explicitly
should state that its findings are demeanor-based, because
this court appropriately defers to the trial panel's superior
position to assess credibility on that basis."

In re Fitzhenry, 343 Or 86, 103 n 13, 162 P3d 260 (2007).

The trial panel in this case found that the accused's
trial testimony varied from his letter of explanation to the
Bar and from what was contained in his deposition. The trial
panel also found that Grohs was credible in all her testimony
and expressly concluded that, where her testimony differed
from that of the accused, Grohs was to be believed. The trial
panel did not, however, make other express demeanor-based
findings.

In contrast to the version of events given by the
accused in his letter to the Bar and deposition testimony,

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Grohs testified at the hearing that she never had a conver-
sation with the accused about attaching her signature from
the deed on four parcels to the deed on three parcels. The trial
panel found that testimony to be credible, but made no
demeanor-based findings. Accordingly, we owe no deference
to that assessment. Fitzhenry, 343 Or at 103 n 13. However,
Grohs's testimony is corroborated by the accused's billing
records and documentation, which do not support that she
had such a conversation with the accused. We thus find the
panel's credibility finding, based on those objective factors, to
have persuasive force. Id. The accused's previous claim in his
letter to the Bar and his deposition testimony that he had
permission from Grohs to affix the signature page from the
deed on four parcels to the deed on three parcels is not
credible.11

However, that finding undermines only the
accused's original proffered reason for attaching the signa-
ture page from the deed on four parcels to the deed on three
parcels, not his concession that he knew about the signature
page switch. As noted, in his letter to the Bar, the accused
represented that he sought and received Grohs's permission
to "use the deed she signed previously and substitute the
legal description of [the deed on three parcels] in place of the
legal description for [the deed on four parcels]." That repre-
sentation to the Bar establishes the accused's knowledge of
the signature page switch, whether he or someone in his
office personally switched the pages. When the accused later
testified before the trial panel that he did not know how the
signature page became affixed, his only proffered explana-
tion for the discrepancy in his version of events was that he
had no recollection of switching the pages, but merely had
speculated that he discussed saving Grohs a trip to the
notary, because he "would not ever do anything like that

11 The accused's reason for gaining Grohs's permission also does not hold up
factually. The accused claimed in his letter to the Bar and deposition testimony
that Grohs was under time pressure to get her loan closed. However, Grohs's loan
had already closed several days before the signature pages were switched.

Furthermore, whether the accused had Grohs's permission to alter and record
the deed is irrelevant. The misrepresentation occurred in this case when, by
recording the document, the accused knowingly made a false representation that
Grohs signed the deed on three parcels when, in fact, she had signed and notarized
a separate and distinct legal document-the deed on four parcels.

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without her agreement." Given that the accused immediately
admitted in his letter to the Bar that he was "consciously
aware" of the circumstances surrounding the signature page
switch to the Bar, we find that he had the requisite knowl-
edge that the notarized signature page from the deed on four
parcels was removed and affixed to the deed on three parcels.

Accordingly, the Bar established by clear and con-
vincing evidence that the accused acted with knowledge.
Thus, the trial panel correctly concluded that the accused vio-
lated RPC 8.4(a)(3). The Bar also proved by clear and con-
vincing evidence that the accused violated DR 1-102(A)(3).

## III. SANCTION

Having found that the accused violated the discipli-
nary rules charged, we must determine the appropriate sanc-
tion. The trial panel concluded that the appropriate sanction
was a 150-day suspension. On review, the accused challenges
the trial panel's sanction, and argues that, at most, a repri-
mand is warranted. We have reviewed the trial panel's con-
clusions with regard to the sanction and, as we explain below,
we conclude that a 150-day suspension is appropriate.

The purpose of lawyer discipline is not to penalize
the accused. In re Glass, 308 Or 297, 304, 779 P2d 612 (1989).
Rather, the purpose is to "protect the public and the admin-
istration of justice from lawyers who have not discharged,
will not discharge, or are unlikely to properly discharge their
professional duties to clients, the public, the legal system,
and the legal profession." ABA Standard 1.1.

In determining an appropriate sanction for a law-
yer's violations of the rules, we follow the analytical frame-
work that this court has set out in past cases. Under that
framework, we determine an initial presumptive sanction
based on (1) the ethical duty violated, (2) the lawyer's mental
state, and (3) the actual or potential injury caused. See, e.g.,
In re Jaffee, 331 Or 398, 408, 15 P3d 533 (2000) (articulating
methodology). We then adjust that presumptive sanction
based on a fourth factor-the presence of aggravating or mit-
igating circumstances. Id. at 408-09. Finally, we consider
whether that adjusted sanction is consistent with Oregon
case law. Id. at 409.

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### A. Preliminary Analysis

The accused has violated multiple rules in this mat-
ter. The violations breached the accused's duties to his clients
and to the public. ABA Standard 4.3 (failure to avoid conflicts
of interest violates duty owed to clients); ABA Standard 5.1
(engaging in misrepresentation violates duty owed to public
to maintain personal integrity); see also In re Knappenberger,
338 Or 341, 356, 108 P3d 1161 (2005) ("[a] lawyer's most
important ethical duties are those owed to clients, including
the duty to avoid conflicts of interest"); In re Spencer, 335 Or
71, 86, 58 P3d 228 (2002) (by engaging in conduct that
involved dishonesty and misrepresentation, the accused vio-
lated his duty to the public to maintain his personal
integrity).

The ABA Standards recognize three mental states:
intentional, knowing, and negligent. A lawyer acts with
"intent" if he or she acts with "the conscious objective or pur-
pose to accomplish a particular result." ABA Standards at 7.
A lawyer acts with "knowledge" if he or she acts with "con-
scious awareness of the nature or attendant circumstances of
the conduct but without the conscious objective or purpose to
accomplish a particular result." Id. "Negligence" is "the fail-
ure of a lawyer to heed a substantial risk that circumstances
exist or that a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would
exercise in the situation." Id.

Here, as for the violations in the Ingle matter, based
on our de novo review of the record, we conclude that the
accused violated DR 5-105(C) and RPC 1.9(a) knowingly. The
accused represented Ingle in obtaining a series of loans from
Hohn and drafted the documents to evidence and secure
those loans. It is undisputed that the accused knew both that
Hohn was Ingle's lender in those loan transactions and that
Hohn, in the subsequent representation, was seeking to
enforce his rights arising out of the very documents that the
accused had drafted on behalf of Ingle in the prior represen-
tation. Furthermore, the accused testified at the hearing that
he was aware that Hohn's interest was "in getting as much as
possible pursuant to the promissory notes and even some
loans under which there were no notes[.]" In that respect, we

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conclude that the accused was consciously aware of the
nature or attendant circumstances of the conduct underlying
the violations in the Ingle matter.

As to the Grohs matter, the trial panel necessarily
found that the accused acted with knowledge when it deter-
mined that the accused violated RPC 8.4(a)(3). As we previ-
ously explained, based on our own de novo review of the rec-
ord, we agree with the trial panel that the accused violated
RPC 8.4(a)(3) knowingly, and we also conclude that the
accused violated DR 1-102(A)(3) knowingly. 348 Or at 597-
98.

Under the ABA Standards, the injuries caused by a
lawyer's professional misconduct may be either actual or
potential. See In re Williams, 314 Or 530, 547, 840 P2d 1280
(1992) ("[A]n injury need not be actual, but only potential, in
order to support the imposition of a sanction."). Actual
"injury" is actual harm to a client, the public, the legal sys-
tem, or the profession that is caused by a lawyer's miscon-
duct. ABA Standards at 7. "Potential injury" is harm that is
reasonably foreseeable at the time of the lawyer's misconduct
but that ultimately did not occur. Id.

As to the Ingle matter, there was potential injury to
the public and the profession. See In re McMenamin, 319 Or
609, 621, 879 P2d 173 (1994) (Graber, J., dissenting) (poten-
tial for injury to public and profession exists because, "when
lawyers have conflicts of interest, they jeopardize the willing-
ness of clients to disclose fully their confidences and thereby
jeopardize the ability of clients to obtain the most effective
legal representation possible"). There was also potential
injury to Ingle's interests, but not actual injury to them.
Although the estate expended monetary resources in defend-
ing the claim against certain "unjust" claims (i.e., Hohn's
claims to collect on loans unsupported by notes and claims
beyond the statute of limitations), the estate would have had
to do so regardless of who had represented Hohn. See In re
Campbell, 345 Or 670, 688, 202 P3d 871 (2009) (injury to for-
mer client included potential economic harm, not actual eco-
nomic harm, because former client would have been required
to employ a lawyer even if the accused had not also repre-
sented subsequent clients).

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Regarding the Grohs matter, we conclude that,
although it does not appear that the Wildes suffered any
actual injury, there was potential injury to the Wildes,
because proper claim of title to the properties could poten-
tially be in dispute due to the altered deed. There also is
potential serious injury to the legal system, the profession,
and to the public when, as here, a lawyer engages in misrep-
resentation that reflects adversely on the lawyer's fitness to
practice law. In re Paulson, 346 Or 676, 716, 216 P3d 859
(2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41
(2010).

The ABA Standards provide that suspension is the
appropriate sanction for each of the accused's violations of
RPC 1.9(a) and DR 5-105(C). See ABA Standard 4.32 (sus-
pension is generally appropriate when a lawyer knows of a
conflict of interest and does not fully disclose to a client the
possible effect of that conflict, and causes potential injury to a
client). Reprimand is generally an appropriate sanction for
each of the accused's violations of RPC 8.4(a)(3) and DR 1-
102(A)(3). See ABA Standard 5.13 (reprimand is generally
appropriate when a lawyer knowingly engages in conduct
that involves misrepresentation and that adversely reflects
on the lawyer's fitness to practice law). Because suspension is
the greater of the two sanctions, suspension is the appropri-
ate preliminary sanction here.

### B. Aggravating and Mitigating Circumstances

We next consider any aggravating and mitigating
circumstances. We find three aggravating circumstances in
this case. First, the accused committed multiple offenses.
ABA Standard 9.22(d). Second, having been licensed to prac-
tice law in Oregon since 1978, the accused has substantial
experience in the practice of law. ABA Standard 9.22(i).
Finally, the accused has prior disciplinary offenses. ABA
Standard 9.22(a). Specifically, in 1997, the accused was sus-
pended from the practice of law for 90 days for violating DR 1-
102(A)(3) (engaging in conduct involving dishonesty), DR 5-
104(A) (entering into a business transaction with a client
without consent after full disclosure), and ORS 9.527(4) (willful
deceit or misconduct in the legal profession). In re Hostetter,
11 DB Rptr 195 (1997). In 2001, the accused was admonished

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for engaging in a current-client conflict of interest in violation
of DR 5-105(E).

The accused disputes that the 2001 letter of admoni-
tion is appropriately considered as a prior disciplinary
offense. We disagree. In In re Cohen, 330 Or 489, 500-01,
8 P3d 953 (2000), this court explained that it ordinarily
would not consider a letter of admonition as a prior discipli-
nary offense if the admonition involved misconduct "wholly
different in nature from the misconduct at issue in the case at
bar," but would do so if it involved the "same or similar type
of misconduct as that presently at issue." The accused was
admonished in 2001 because he violated DR 5-105(E) (cur-
rent-client conflict of interest). Specifically, the State Profes-
sional Responsibility Board found that the accused repre-
sented clients in a subdivision matter at the same time that
the accused's firm was representing another client in lease
negotiations (and then a dispute) with those same clients.
That misconduct is not "wholly different in nature from the
misconduct at issue" in this case but, rather, is similar in type
and violates the same duty-the duty owed to his clients. See
ABA Standard 4.3 (failure to avoid conflicts of interest vio-
lates duty owed to client).

Two mitigating factors are also present. The accused
had a cooperative attitude toward the disciplinary proceed-
ings. ABA Standard 9.32(e). The accused also appears
to have an excellent reputation in the community. ABA
Standard 9.32(g).

### C. Oregon Case Law

Having made a preliminary determination that a
suspension of some term is appropriate based on the ABA
Standards and the aggravating and mitigating factors, we
turn to this court's case law to help us determine the duration
of that suspension. As we have noted in the past, case-
matching in the context of disciplinary proceedings "is an
inexact science." In re Stauffer, 327 Or 44, 70, 956 P2d 967
(1998). That is especially so for cases involving multiple vio-
lations in multiple matters, because in many such proceed-
ings the accused declines to contest the charges or the sanc-
tion. Paulson, 346 Or at 721. Still, we think that this court's
past cases do provide some guidance, and that they demon-
strate the appropriateness of the suspension in this case.

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As this court has explained on several occasions,
a finding that a lawyer has engaged in a conflict of interest
in violation of DR 5-105, standing alone, typically justifies
a 30-day suspension. Campbell, 345 Or at 689; see also
Knappenberger, 338 Or at 361 (court ordinarily suspends
lawyers who violate DR 5-105(C)); In re Hockett, 303 Or 150,
164, 734 P2d 877 (1987) (30-day suspension appropriate for
single violation of DR 5-105(C)). Here, however, the accused
not only engaged in a conflict of interest, but also engaged in
misrepresentation that reflects adversely on his fitness to
practice law.

In previous lawyer disciplinary cases involving dis-
honesty and misrepresentation, this court has ordered sanc-
tions ranging from six-month suspensions to disbarment.
In re Wilson, 342 Or 243, 251, 149 P3d 1200 (2006); see, e.g.,
In re Benson, 317 Or 164, 854 P2d 466 (1993) (six-month sus-
pension for assisting client in preparation of fraudulent doc-
uments); In re Hawkins, 305 Or 319, 751 P2d 780 (1988) (dis-
barment for filing false affidavit and using false evidence);
In re Brown, 298 Or 285, 692 P2d 107 (1984) (two-year sus-
pension for preparation of false affidavit).

In re Morris, 326 Or 493, 953 P2d 387 (1998), is par-
ticularly instructive here. In that case, this court concluded
that the accused violated, inter alia,12 DR 1-102(A)(3) when
she knowingly altered and filed with the court a final account
that had been previously signed and notarized by her client.
326 Or at 495, 501-02. This court also concluded that the
accused violated DR 5-105(E) (representing multiple current
clients when such representation would result in an actual or
likely conflict) when the accused simultaneously represented
the prior and successor personal representatives of an estate.
326 Or at 495, 503-04. After determining that the accused's
violation of DR 5-105(E) was "both obvious and serious," but
also finding that the "mitigating factors significantly out-
weigh[ed] the aggravating factors," this court imposed a
sanction of 120 days. 326 Or at 505-06.

Here, as in Morris, the accused's violation of the con-
flict of interest rules was "obvious and serious." Furthermore,

12 This court also found that the accused violated DR 7-102(A)(5) (in lawyer's
representation of client, knowingly making a false statement of law or fact) and DR
1-102(A)(4) (conduct prejudicial to the administration of justice). 326 Or at 495.

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the aggravating factors in this case militate in favor of a sanc-
tion greater than the 120-day sanction imposed in Morris.
Accordingly, a 150-day suspension is appropriate in this case.

## IV. CONCLUSION

Having found, as did the trial panel, that the
accused violated DR 5-105(C), RPC 1.9(a), and RPC 8.4(a)(3),
as well as DR 1-102(A)(3); having considered the relevant
ABA Standards; and having evaluated the applicable Oregon
case law, we determine that the appropriate sanction for the
accused's violations in this matter is a 150-day suspension.

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