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Cite as In re Richardson, 19 DB Rptr 239 (2005)
Sanction
17.
The Accused and the Bar agree that in fashioning an appropriate sanction in
this case, the Disciplinary Board should consider the ABA Standards for Imposing
Lawyer Sanctions (hereinafter “Standards”). The Standards require that the Accused’s
conduct be analyzed by considering the following factors: (1) the ethical duty
violated; (2) the lawyer’s mental state; (3) the actual or potential injury; and (4) the
existence of aggravating and mitigating circumstances.
A. Duty Violated. The Accused violated his duties to the public to maintain
his personal integrity, to abide by the law, and, as a public official, to avoid using
his public position to obtain a special advantage. Standards, § 5.0. The Accused also
violated his duties to the legal system to operate within the bounds of the law and
to avoid improper communications with individuals in the legal system. Standards,
§§ 6.0, 6.3.
B. Mental State. A lawyer acts with “intent” when he or she acts with the
conscious objective or purpose to accomplish a particular result. A lawyer acts with
“knowledge” when he or she is aware of the nature or attendant circumstances of his
or her conduct, but does not act with the conscious objective or purpose to
accomplish a particular result. A lawyer acts with “negligence” when he or she fails
to be aware of 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. Standards, at 7.
In the Houdroge matter, the Accused acted knowingly in that he knew Bates
could rely upon his advice regarding service of the grand jury subpoena and avoid
service of a grand jury subpoena or fail to appear pursuant to such a subpoena. At
the least, the Accused acted negligently in failing to heed the risk that Bates would
rely upon his advice and avoid service or fail to appear pursuant to a grand jury
subpoena.
In the Scruggs matter, the Accused intentionally created a misimpression that
the small claims court action was related to a fraud case under investigation by the
Oregon Attorney General and intentionally instructed the police officer to mislead
Diaz as to the nature of the proceedings against her.
C. Injury. The Standards require consideration of both actual and potential
injury. In re Knappenberger, 338 Or 341, 357, 108 P3d 1161 (2005). Actual injury
is harm to a client, the public, the legal system or the profession which results from
a lawyer’s misconduct. Potential injury is the harm to a client, the public, the legal
system, or the profession that is reasonably foreseeable at the time of the lawyer’s
misconduct, and which, but for some intervening factor or event, would probably
have resulted from the lawyer’s misconduct. Standards, at 7.
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