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

Cite as In re Ryan, 19 DB Rptr 41 (2005)
disciplinary rules, including filing a false affidavit with the Bar and engaging in the
unauthorized practice of law after he had been suspended by the court. Here, the
Accused was administratively suspended by the Bar and does not have substantial
experience in the practice of law.
In Morin, the court disbarred the lawyer who defended his ethics complaint
by willfully and falsely claiming that he had permitted a will to be witnessed
improperly only once, when in fact he had caused over 300 wills to be improperly
witnessed. The lawyer knew the 300-plus wills were improperly witnessed. Here, the
Accused willfully and falsely claims she did not engage in the unauthorized practice
of law during the period of her suspension when in fact she had over a 24-day
period, which period of suspension included a 12-day vacation. We find the
magnitudes of the ethical transgressions in the two cases are qualitatively different,
and that the Accused committed the lesser wrong.
In Yacob, the court disbarred a lawyer who engaged in ethical misconduct
involving menacing, false advertising, the withholding of client funds, and falsifying
documents. The Accused has not engaged in comparable misconduct.
The Accused’s conduct bears a substantial similarity to that in In re Brown,
supra, but we are uncertain what weight to ascribe Brown, given that the court
decided the case without reference to the ABA Standards. In Brown, the court
suspended a lawyer for two years after he prepared false affidavit for a client in an
effort to fend off an investigation by the Bar. The Bar’s underlying investigation
related to the lawyer improperly advancing money to the client for her personal
expenses. In the course of that investigation, the lawyer prepared the affidavit and
submitted it to the Bar in an attempt to falsely show that there had been no loan to
the client. The lawyer had no prior record of discipline. The court decided the 1985
case without reference to the ABA Standards. This causes us to question the weight
of authority Brown carries under the current disciplinary rubric.
The Accused’s misconduct in this case is also comparable to the conduct
sanctioned in Wyllie. In Wyllie, the court suspended a lawyer for two years after the
lawyer submitted a minimum continuing legal education (MCLE) report that falsely
represented he had individually screened 45 hours of taped continuing legal education
materials. The lawyer had no prior disciplinary record, but told markedly different
versions of his story as the MCLE investigation and disciplinary proceeding evolved.
Here, the Accused has no prior disciplinary record, and while there are multiple
statements made by the Accused, the differences are not as marked as those in Wyllie
are. Additionally, there were few mitigating circumstances in Wyllie to
counterbalance multiple aggravating circumstances. Here, while the balance tips
toward aggravating circumstances, the difference is narrower than in Wyllie. The
attitudes of Wyllie and the Accused also differ, although neither is appropriate. In
Wyllie, the court described the accused lawyer’s attitude as cavalier. Here the attitude
is one of unreasonable denial and tenuous self-justification.
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