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

Cite as In re Wilson, 19 DB Rptr 357 (2005)
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 her duty to act with reasonable
diligence and promptness in representing Shepard and her duty to provide Shepard
with competent representation. Standards, §§ 4.4, 4.5. The Accused also violated
duties she owed to the profession to avoid collecting an illegal fee and avoid the
unlawful practice of law. Standards, § 7.0.
B. Mental State. “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. Standards, at 7. The Accused knew that she did not
have sufficient legal knowledge about probate law and should not have undertaken
to represent Shepard. Under those circumstances the Accused acted knowingly when
she failed to provide competent representation and neglected Shepard’s legal matter.
The Accused also acted knowingly when she failed to obtain court approval before
collecting her fees as a lawyer is presumed to know the law. In re Devers, 328 Or
230, 974 P2d 191 (1996). The Accused also knowingly engaged in the unlawful
practice of law. Through numerous notices, the Accused knew that if she did not pay
her Bar membership dues by a date certain then she would be automatically
suspended from the practice of law. Despite that knowledge, and after the automatic
suspension date, the Accused continued to represent Shepard and filed a motion for
extension of time on her behalf.
C. Injury. Injury can be either actual or potential. In re Williams, 314 Or
530, 840 P2d 1280 (1992). Shepard sustained actual injury in that her ability to
properly probate her mother’s estate was hampered and delayed as a result of the
Accused’s incompetence and neglect. Shepard was also exposed to potential injury
when the Accused engaged in the unlawful practice of law as the court could have
rejected the motion for extension filed by the Accused had it known she was
suspended. The court sustained actual injury when the Accused practiced law while
she was suspended. The court sustained additional injury in that as a result of the
Accused’s conduct it could not fulfill statutory responsibilities to supervise proper
distribution of estate assets and payment of attorney fees.
D. Aggravating Factors. The following aggravating circumstances exist:
1. Multiple offenses. Standards, § 9.22(d).
2. Substantial experience in the practice of law as the Accused has been
a lawyer in Oregon since 1998. Standards, § 9.22(i).
E. Mitigating Factors. The following mitigating circumstances exist:
1. Absence of a prior disciplinary record. Standards, § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards, § 9.32(b).
3. Cooperative attitude toward the proceedings. Standards, § 9.32(e).
360