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Cite as In re Foley, 19 DB Rptr 205 (2005)
D. Aggravating Factors. Aggravation or aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to
be imposed. Aggravating factors include:
1. There is a pattern of misconduct. Standards, § 9.22(c).
2. There are multiple rule violations. Standards, § 9.22(d).
3. Jules Ferron and his counsel and other persons whose financial records
the Accused sought by service of the subpoenas were vulnerable in that they were
not given notice and were otherwise unaware of the Accused’s subpoenas. Standards,
§ 9.22(h).
4. The Accused was admitted to practice in 1980 and has substantial
experience in the practice of law. Standards, § 9.22(i).
E. Mitigating Factors. Mitigation or mitigating circumstances are any
considerations or factors that may justify a reduction in the degree of discipline to
be imposed. Mitigating factors include:
1. The Accused has no prior record of formal discipline. Standards,
§ 9.32(a).
2. The Accused cooperated with the disciplinary authorities during the
investigation of his conduct. Standards, § 9.32(e).
3. The Accused is remorseful. Standards, § 9.32(m).
14.
The Standards provide that reprimand is generally appropriate when a lawyer
negligently fails to comply with a court order or rule, and causes injury or potential
injury to a client or other party, or causes interference or potential interference with
a legal proceeding. Standards, § 6.23. Suspension is generally appropriate when a
lawyer knows that he or she is violating a court order or rule, and causes injury or
potential injury to a client or a party, or causes interference or potential interference
with a legal proceeding. Standards, § 6.22. The Standards also provide that
reprimand is generally appropriate when a lawyer negligently engages in conduct that
is a violation of a duty owed to the profession and causes injury or potential injury
to a client, the public, or the legal system. Standards, § 7.3.
Although the Standards suggest suspension may be warranted because of the
mental state and potential injury, case law suggests a reprimand is an appropriate
sanction in this case. See In re Egan, 13 DB Rptr 96 (1999) (lawyer reprimanded for
violation of DR 1-102(A)(4), DR 7-102(A)(1), and DR 7-106(A) when she repeatedly
file a motion not recognized under the rules); In re Penz, 16 DB Rptr 169 (2002)
(lawyer reprimanded for violation of DR 7-110(B) when she repeatedly failed to
provide required notices to opposing counsel); In re Schenck, 320 Or 94, 879 P2d
863 (1994) (lawyer reprimanded for violation of DR 7-104(A)(1) and DR 7-110(B)).
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