P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Nester, 19 DB Rptr 134 (2005)
E. Mitigating Factors. The mitigating factors applicable to this case
include:
1. Absence of a prior disciplinary record. Standards, § 9.32(a); and
2. Absence of a dishonest or selfish motive. Standards, § 9.32(b).
13.
Standards § 4.33 suggests that a public reprimand is generally appropriate
when a lawyer is negligent in determining whether the representation of a client may
be materially affected by the lawyer’s own interests and causes injury or potential
injury to a client. Standards § 7.3 suggests that a public reprimand is appropriate
when a lawyer negligently engages in conduct that is a violation of a duty owed as
a professional and causes injury or potential injury to a client, the public, or the legal
system.
Standards § 4.32 suggests that suspension 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 injury or potential injury to a client.
Standards § 7.2 suggests that suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a professional,
and causes injury or potential injury to a client, the public, or the legal system.
14.
Oregon case law suggests that a short period of suspension, not a public
reprimand, is the appropriate sanction in this case.
In In re Schaffner, 323 Or 472, 481, 918 P2d 803 (1996), the Supreme Court
stated that a 60-day suspension is an appropriate sanction for one intentional violation
of DR 1-103(C). See also In re Worth, 336 Or 256, 278, 82 P3d 605 (2003). The
Disciplinary Board has determined that a 30-day suspension is an appropriate
sanction when the lawyer violated DR 1-103(C) for making a false statement to the
Bar without first determining the truth or falsity of that statement, and for violation
of DR 2-101(A), DR 2-110(A)(2), and DR 6-101(B). In re Mendez, 10 DB Rptr 129
(1996).
With respect to the Accused’s self-interest conflict, the court has also typically
imposed a short period of suspension when a conflict is so obvious that the lawyer
should know better. In re Robertson, 290 Or 639, 624 P2d 603 (1981); In re Hockett,
303 Or 150, 164, 734 P2d 877 (1987); In re Gant, 293 Or 130, 137, 645 P2d 23
(1982).
15.
Consistent with the Standards and Oregon case law, the parties agree that the
Accused shall be suspended for a period of 30 days for violation of DR 5-101(A) and
DR 1-103(C), the sanction to be effective beginning on June 3, 2005.
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