In re Munn

No. 26 July 25, 2024 589

IN THE SUPREME COURT OF THE

STATE OF OREGON

In re: Complaint as to the Conduct of

JASON P. MUNN

OSB No. 061674

Respondent.

(OSB 2139, 2168, 2238) (SC S070455)

En Banc

On review of the decision of a trial panel of the Disciplinary

Board.

Argued and submitted May 9, 2024.

Jason P. Munn, Redmond, argued the cause and filed the

brief for respondent pro se.

Susan R. Cournoyer, Assistant Disciplinary Counsel,

Oregon State Bar, Tigard, argued the cause and filed the

brief for the Oregon State Bar.

PER CURIAM

Respondent is suspended from the practice of law for a

period of 24 months, effective 60 days from the filing of this

decision.

590 In re Munn

Cite as 372 Or 589 (2024) 591

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon

State Bar alleged that respondent engaged in misconduct

amounting to four violations of Rule of Professional Conduct

(RPC) 1.1 (failure to provide competent representation); two

violations of RPC 1.3 (neglect of a legal matter); three viola-

tions of RPC 1.4(b) (failure to explain matter to the extent

reasonably necessary to permit client to make an informed

decision); and one violation of RPC 8.1(a)(2) (knowing fail-

ure to respond to lawful demand for information from disci-

plinary authority). A majority of the trial panel concluded that

respondent had committed those 10 violations and imposed a

24-month suspension; a dissenting panel member disagreed

with one aspect of the majority’s analysis under the rules

and would have imposed a 12-month suspension. Respondent

seeks review as to both the violations and the sanction.

The Bar brought this case based on allegations that

respondent, a criminal defense lawyer, had not been review-

ing discovery before resolving his client’s cases. Relying on

In re Bettis, 342 Or 232, 240, 149 P3d 1194 (2006), the Bar

contends that a criminal defense lawyer’s failure to review

available discovery before resolving a case is a categorical

violation of RPC 1.1’s duty of competence. As we will explain,

we decline to take a categorical approach to what constitutes

a violation of RPC 1.1’s duty of competence; that is a fact-

specific inquiry that depends on the circumstances. However,

reviewing this matter de novo,1 we conclude that respondent

violated all four rules, resulting in 10 violations, as alleged,

and we suspend him from the practice of law for 24 months.

I. BACKGROUND

On review in this court, respondent contends that

the Bar failed to prove the alleged violations by clear and

convincing evidence for two reasons. First, he contends

1

We review lawyer disciplinary matters de novo. Bar Rule of Procedure (BR)

10.6 (stating that the court “shall consider each matter de novo upon the record

and may adopt, modify or reject the decision of the trial panel in whole or in part

and thereupon enter an appropriate order.”) On de novo review, this court sits

as factfinder based on the record developed by the trial panel; that record must

demonstrate that the Bar has proved each violation by clear and convincing evi-

dence. BR 5.2. That means that the truth of the asserted facts must be “highly

probable.” In re Claussen, 331 Or 252, 260, 14 P3d 586 (2000).

592 In re Munn

that the Bar’s case rests entirely on a Bar grievance filed

by a deputy district attorney, with no evidence presented

from his former clients. Second, he claims that records,

purporting to show that he had not reviewed discovery in

many cases, were introduced with “no proper foundation.”

At oral argument in this court, respondent also explained

that he often resolved cases quickly based on his client’s

instructions, and he contended that doing so did not violate

the Rules of Professional Conduct, even if he did so without

reviewing all the discovery materials. Respondent argues,

for example, that if a client wanted to accept an early plea

offer that would result in probation and release from cus-

tody, carrying out those instructions was appropriate even

if respondent had not reviewed the available discovery. As

to the sanction, respondent maintains that the trial panel

erred in failing to consider certain mitigating factors.

As we will explain, we reject respondent’s conten-

tions and agree that a 24-month suspension is appropriate in

this case. We begin with the facts established in the record.

A. Respondent’s Representation of Indigent Criminal

Defendants

Respondent has been a member of the Bar since

2006. Between 2006 and 2017, he worked at the Malheur

County District Attorney’s Office, where he was eventually

promoted to chief deputy district attorney. He then left that

office to work as a public defender under contract with a con-

sortium, the 22nd Circuit Defenders (“the consortium”). The

consortium contracted with Oregon Public Defense Services

(OPDS)2 to represent indigent clients in criminal and juve-

nile matters in Jefferson and Crook counties. Respondent

worked with the consortium from 2017 until approximately

June 2020.

B. Grievances Filed with the Bar and Other Purported

Misconduct

In June 2020, while respondent was under contract

with the consortium, the Chief Deputy District Attorney

for Jefferson County, Foster, filed a grievance with the Bar,

claiming that respondent had not accessed discovery in 96

2

OPDS now is known as the Oregon Public Defense Commission.

Cite as 372 Or 589 (2024) 593

cases in which his clients had accepted plea offers. Some

of those plea agreements resulted in significant prison sen-

tences. Foster’s grievance was based on information that she

had retrieved from her office’s electronic case management

system, called “Prosecutor by Karpel” (Karpel). Although

Foster had identified 96 potentially problematic cases, her

grievance focused on 37 specific cases in which she asserted

that respondent had either never requested discovery, had

not accessed any discovery, or had accessed only very lim-

ited discovery.

Foster’s grievance indicated that, in separate

cases involving three of respondent’s clients—Provencher,

Williams (two cases), and Rivers—respondent either did not

review discovery at all or did not review material parts of

the available discovery before those clients accepted plea

offers resulting in lengthy prison sentences.3 In addition,

Foster’s grievance explained that respondent had delayed

more than three weeks before filing what he had been told

would be an unopposed motion to determine whether one

client (Sorensen) was mentally fit to proceed, leaving her in

jail without treatment; he also had failed to take any action

to arrange for housing or mental health treatment needed

to facilitate release and resolution of the case. Foster later

submitted additional corroborating information to the Bar,

which included screenshots from Karpel showing that, in

certain cases, discovery had been sent by the prosecutor’s

office, but respondent had accessed it only in part or not at

all.

Foster also told an administrator of the consor-

tium, Kimble, that it appeared that respondent had not been

reviewing discovery. Kimble terminated respondent from

the defense consortium and notified OPDS. OPDS, in turn,

suspended respondent from handling public defense cases,

and its General Counsel, Deitrick, filed his own Bar griev-

ance regarding respondent’s conduct.

In addition to the grievances filed by Foster and

Deitrick, two of respondent’s former clients filed griev-

ances with the Bar. One former client, Arthur, alleged that

3

We set out some additional detail respecting the individual client matters

later in this opinion.

594 In re Munn

respondent had not adequately represented him in connection

with a no-contest plea. The Bar’s investigation determined

that respondent had not reviewed any discovery—which had

included Arthur’s lengthy criminal record—before Arthur

accepted the no-contest plea, which included a contingent

six-year prison sentence if probation were revoked.

Another former client, Hooper, reported to the Bar

that respondent had mishandled an evidentiary hearing. In

Hooper’s matter, during a three-month period after remand

from the Court of Appeals, respondent had not prepared or

acquainted himself with the evidentiary issue on remand,

had not obtained or reviewed the evidence at issue, and

had not obtained a supplemental transcript prepared by

appellate counsel. Additionally, Hooper’s appellate counsel,

Montague, had expressed concerns to respondent before the

evidentiary hearing that respondent was not communicat-

ing with Hooper, and, during the hearing, Hooper repeatedly

tried to raise concerns about the transcript that the par-

ticipants were using. The trial court ultimately concluded

that the challenged evidence had been properly received,

reinstated Hooper’s convictions, and sentenced him to 90

months in prison. Montague later complained to Deitrick at

OPDS regarding respondent’s handling of the case.

C. The Bar’s Investigation and Requests for Information

In early November 2020, the Bar began investigat-

ing Foster’s grievance.

As part of that investigation, the Bar’s Disciplinary Counsel’s

Office (DCO) sent respondent a letter seeking information

regarding his representation of two clients—Sorensen and

one other client—and asked him to “respond to the allega-

tion that you did not review all of the discovery available”

in each of the 37 cases identified in Foster’s grievance. DCO

granted respondent two extensions of time and sent a sec-

ond request in late December.

Respondent provided a partial response at the end

of December 2020, stating that “[d]iscovery materials were

reviewed,” but he did not respond to DCO’s inquiries about

specific cases. In January 2021, DCO sent another inquiry,

again asking respondent if he had reviewed discovery

Cite as 372 Or 589 (2024) 595

materials in each of the 37 specific cases identified by Foster.

Shortly thereafter, respondent provided a similar general

response. In that response, respondent no longer claimed

that “[d]iscovery materials were reviewed.” Instead, he stated

that “I always felt, in each case, I had sufficient knowledge of

the facts to properly advise and counsel all former clients in

the pursuit of their goals.” In March, the Bar sent respondent

another information request, this time asking respondent to

explain how he had obtained discovery in the 37 specified

cases. Respondent did not respond to that request.

Due to respondent’s incomplete responses, DCO

filed a petition for administrative suspension under Bar

Rule of Procedure (BR) 7.1. Respondent did not respond to

that petition, and the Bar’s Adjudicator suspended him in

April 2021. The Bar later filed its formal complaint (dis-

cussed below) in September 2021. In December 2021, respon-

dent finally provided specific responses to DCO’s questions

about whether he had reviewed discovery materials in the

37 cases. As to most of those cases, respondent stated that

he had reviewed the affidavit of probable cause because cli-

ent “wished to enter a plea.” Those affidavits were available

in the trial court’s electronic file; reviewing them did not

require an attorney to access discovery through the Karpel

system.

D. The Bar’s Complaint

In September 2021, the Bar filed its formal com-

plaint,4 which set out five “Causes of Complaint” that

alleged multiple violations of four separate rules relating to

respondent’s representation of six named clients—Arthur,

Hooper, Sorensen, Provencher, Williams, and Rivers. The

complaint further described respondent’s failure to review

available discovery as to “numerous” unnamed other clients

whom respondent represented in criminal cases and alleged

that respondent had knowingly failed to respond to DCO’s

requests for information.

More specifically, the complaint alleged four viola-

tions of RPC 1.1 (failure to provide competent representation)

4

The Bar later filed an amended complaint; all references hereafter to the

Bar’s complaint are to its amended complaint.

596 In re Munn

in connection with all six of the named clients, specifically

focusing on the failure to review discovery, with additional,

related allegations as to Hooper (failure to adequately pre-

pare for the evidentiary hearing on remand) and Sorensen

(failure to take actions to facilitate pretrial release and res-

olution). The complaint further alleged that respondent had

violated RPC 1.3 (neglect of a legal matter) in connection

with Hooper and Sorensen. And the complaint alleged three

violations of RPC 1.4(b) (failing to adequately explain mat-

ters to the extent reasonably necessary to permit client to

make an informed decision) in connection with five of the six

named clients (all except Hooper), contending that respon-

dent had violated that rule when he advised the clients

regarding plea agreements without having reviewed signifi-

cant available discovery. Finally, the complaint alleged that

respondent had violated RPC 8.1(a)(2) when he knowingly

failed to respond to the Bar’s request for information in con-

nection with the Bar’s investigation.

In respondent’s answer to the complaint, he stated

that he had “felt at the time” that he had sufficient knowl-

edge of the facts of each case in which he represented an

indigent client. He indicated that “many times” he was able

to review discovery materials without downloading them,

and that he was provided with probable cause affidavits

“which often mirrored police reports.” He further stated

that he “spent time” with the clients that he represented

and “answered any and all questions” that they had.

Respondent admitted, however, that he “could have

been more diligent” in requesting and documenting discov-

ery materials, and he indicated that he was experiencing

“many personal and family hardships” as well as “profes-

sional hardships” at the time. He indicated that he was

“severely unsatisfied” with his role with the consortium,

though he was “not attempting to deny responsibility or shift

blame.” He further indicated that he “accept[ed] responsibil-

ity for any mistakes and errors” that he had made while

practicing law in Jefferson County. Finally, he apologized for

his “delayed response” to the Bar’s inquiry and complaint,

stating that it was not his “intent to be uncooperative” but

Cite as 372 Or 589 (2024) 597

that he was “still under a lot of stress” and needed time to

address his physical and mental health during that time.

E. Trial Panel Proceedings

At the trial panel hearing, the Bar presented testi-

mony from Foster (from the District Attorney’s Office) and

Deitrick (from OPDS), both of whom had filed grievances

with the Bar; Kimble (from the consortium); and Montague

(the appellate attorney for Hooper). The Bar did not, how-

ever, present testimony from the two former clients who

had filed grievances (Hooper and Arthur) or from any of the

other former clients named in its complaint. Respondent tes-

tified on his own behalf.

Foster testified that she had become concerned

about respondent’s failure to access discovery made avail-

able to criminal defense lawyers through Karpel. She

explained that, when a defense lawyer requests discov-

ery, the DA’s office sends them an email with a link that

allows the lawyer to access and download discovery through

Karpel, which records the date and time of access when the

lawyer clicks the link. After reviewing the Karpel access

records, Foster ultimately determined that respondent had

not accessed all the available discovery in the 96 cases listed

in her grievance. Respondent did not object during the trial

panel proceedings to Foster’s testimony regarding either

Karpel generally or what Foster had learned by accessing it.

Kimble testified that, upon learning from Foster

about respondent’s failure to review discovery, she con-

fronted respondent, who responded that he “goes off of what

his clients tell him” and that he only looked at discovery if he

was going to trial. Kimble testified that she then terminated

respondent from the consortium and reported the issue to

OPDS. Kimble further testified that reviewing only the

probable cause affidavit is not sufficient, because it typically

will not contain any witness contact information, criminal

history, or mitigating information, and thus cannot be used

to inform plea negotiations. Kimble also confirmed Foster’s

testimony that the Karpel system shows whether and when

a defense lawyer accesses discovery materials even if the

lawyer reviews them online without downloading them.

598 In re Munn

Deitrick testified that, after learning about Foster’s

assessment based on Karpel records, OPDS suspended

respondent’s authority to handle public defense cases, and

it hired the Oregon Justice Resource Center and the Oregon

Innocence Project to review criminal cases that had been

assigned to respondent to determine whether any of his for-

mer clients had been harmed.

The Bar presented testimony from two lawyers

who worked for the Oregon Innocence Project’s Wrongful

Conviction Review Program (WCRP)—Wax (the WCRP

Legal Director) and Powers. Both testified that, as part of

the WCRP audit, they asked respondent for permission to

access his files for the affected clients so that they could

review them but did not receive a response for many months.

After Powers drove out to meet respondent in person, respon-

dent finally provided her with both his electronic and paper

records. The paper records were in two plastic bins, a trash

bag, and a loose-leaf stack. Staff at WCRP, thereafter, spent

weeks organizing those papers. Wax testified that the “over-

whelming majority” of respondent’s client files contained no

discovery.

Wax had previously worked as a New York state

public defender and as a federal public defender in Oregon

during his career. The Bar asked Wax about the ABA

Criminal Justice Standards - Defense Function, 4-4.1 (4th ed

2017), which describes the duty of defense counsel to inves-

tigate and provides:

“(a) Defense counsel has a duty to investigate in all

cases, and to determine whether there is a sufficient fac-

tual basis for criminal charges.

“(b) The duty to investigate is not terminated by fac-

tors such as the apparent force of the prosecution’s evi-

dence, a client’s alleged admissions to others of facts sug-

gesting guilt, the client’s expressed desire to plead guilty

or that there should be no investigation, or statements to

defense counsel supporting guilt.”

Wax explained that, in his opinion, these standards

generally required defense counsel to “test the case” pre-

sented by the prosecutor. That duty has two components:

understanding the information that the state has against

Cite as 372 Or 589 (2024) 599

the client, and conducting a sufficient independent investiga-

tion into the facts to determine whether the state’s informa-

tion is accurate. Wax explained that the second component

includes discussing the case with the client, interviewing

witnesses, and exploring mitigating information. Mitigating

information, Wax explained, is any evidence that might lead

the prosecutor to make a better plea offer, including errors

in the probable cause affidavit or the availability of a motion

to suppress evidence.

Wax further testified that, in his opinion, a defense

lawyer’s duty to “test the case” is not overcome by a cli-

ent’s desire to plead guilty. He explained that clients rarely

understand the difference between “moral guilt” and “legal

guilt,” and that feeling guilty is not the same as having

committed the charged offense. Thus, clients must rely on

defense counsel to explain the law applicable to their situa-

tion. Additionally, defense attorneys are obligated to pursue

any mitigating information that could result in a better plea

offer. When asked whether it would be sufficient to review

only the probable cause affidavit from law enforcement, Wax

replied “No, absolutely not.”

Respondent testified that he had sometimes

reviewed discovery online without downloading the materi-

als and suggested that Karpel documented only when dis-

covery materials were downloaded. He further testified that

he thought that reviewing the probable cause affidavit was

usually sufficient to advise his clients. During closing, he

added that he was being “sarcastic” when he told Kimble

that he looked at discovery only if he was going to trial.

Respondent did not call any other witnesses.

A majority of the trial panel concluded that respon-

dent had committed the 10 violations alleged and imposed

a 24-month suspension. A dissenting panel member would

have imposed a 12-month suspension.5

5

The dissent would also have concluded that, because Wax had been a fed-

eral public defender, his opinions regarding the professional standards for public

defenders in Oregon state courts should be given less weight. We note, however,

that most of Wax’s opinions were corroborated by Kimble, an administrator of

the consortium of criminal defense lawyers practicing in state courts in Jefferson

and Crook counties.

600 In re Munn

II. ANALYSIS

As noted above, respondent contends on review that

the Bar failed to prove the allegations by clear and convinc-

ing evidence. Respondent makes three arguments: (1) the

Karpel evidence was received without a proper foundation;

(2) the Bar’s allegations rested entirely on Foster’s grievance;

and (3) by following his client’s instructions to resolve cases

quickly, respondent did not violate the Rules of Professional

Conduct. We reject all three arguments.

Because respondent did not object to the Karpel

evidence before the trial panel, his foundation argument is

unpreserved. See generally In re Sanai, 360 Or 497, 525, 383

P3d 821 (2016) (concluding that issues not preserved before

trial panel in lawyer disciplinary proceedings cannot be

raised for the first time on review). At no point in the pro-

ceedings before the trial panel did respondent raise a foun-

dation objection or otherwise suggest that the evidence from

Karpel was inadmissible or unreliable. If he had, the record

might have developed differently. See Peeples v. Lampert, 345

Or 209, 219-20, 191 P3d 637 (2008) (preservation “ensures

that the positions of the parties are presented clearly to the

initial tribunal” so that the opposing party is not “denied

opportunities to meet the argument” (internal quotation

marks omitted)).

The foundation argument was central to respon-

dent’s contentions in this court, so we will add that, in addi-

tion to being unpreserved, we see no basis for excluding that

evidence for lack of foundation. The Oregon Evidence Code

does not apply to Bar disciplinary proceedings. In re Ard,

369 Or 180, 189, 501 P3d 1036 (2021). Trial panels in Bar

disciplinary proceedings “may admit and give effect to evi-

dence that possesses probative value commonly accepted by

reasonably prudent persons in the conduct of their affairs.”

BR 5.1(a). The testimony from Foster and Kimble that pros-

ecutors and defense attorneys in Jefferson County regularly

rely on Karpel supports the conclusion that such evidence is

“commonly accepted” by reasonably prudent lawyers prac-

ticing criminal law in that county. That testimony was suf-

ficient to make the Karpel evidence admissible in this disci-

plinary proceeding.

Cite as 372 Or 589 (2024) 601

We also reject respondent’s suggestion that the

Bar’s case against him rests entirely on Foster’s grievance.

That grievance—along with the grievances filed by Deitrick,

Hooper, and Arthur—certainly may have initiated the Bar’s

disciplinary investigation, but the presentation to the trial

panel ultimately rested on the proffered testimony and

exhibits that the trial panel received. As we will explain,

reviewing that evidence de novo, we agree with the trial

panel that the Bar proved by clear and convincing evidence

that respondent committed all the violations alleged in the

Bar’s complaint.

We turn to the specific violations alleged by the Bar.

A. RPC 1.1: Failure to Provide Competent Representation

The Bar alleged four violations of RPC 1.1, related

to respondent’s representation of the six clients named in

the complaint—Arthur, Hooper, Sorensen, Provencher,

Williams, and Rivers—all of which the trial panel concluded

had been proved by clear and convincing evidence.6 RPC 1.1

provides:

“A lawyer shall provide competent representation to a

client. Competent representation requires the legal knowl-

edge, skill, thoroughness and preparation reasonably nec-

essary for the representation.”

This court has stated that whether a lawyer has failed to

provide competent representation is a fact-specific inquiry

that focuses on the lawyer’s conduct without regard to their

mental state or the results achieved for their client. In re

Magar, 335 Or 306, 319-20, 66 P3d 1014 (2003). Our inquiry

here, therefore, focuses on the reasonableness of respon-

dent’s conduct. See id. at 320 (so stating).

6

The second cause of the Bar’s complaint—entitled “numerous criminal

defense clients”—alleged single violations of RPC 1.1 (competence) and RPC

1.4(b) (failure to adequately explain) in connection with Provencher, Williams,

Rivers, and 94 unnamed clients, for which respondent allegedly reviewed only

limited discovery, including 37 clients for which he allegedly reviewed no or

substantially no discovery. The Bar did not present specific evidence about the

facts and circumstances of those clients’ cases to the trial panel. For reasons

discussed below, we conclude that there is clear and convincing evidence proving

the alleged violations with regard to the named clients, making it unnecessary

to consider the allegations regarding unnamed clients.

602 In re Munn

As discussed above, the Bar’s four RPC 1.1 alle-

gations focus on respondent’s failure to review discovery

when representing six different clients, though the Bar only

charged four violations: one each as to Arthur, Hooper, and

Sorensen, and a fourth violation combining the allegations

regarding Provencher, Williams, and Rivers. The Bar con-

tends that a criminal defense lawyer’s failure to review dis-

covery before the case is resolved categorically violates RPC

1.1, citing Bettis, 342 Or at 240.

Bettis involved a lawyer who had not reviewed

any discovery or conducted any legal or factual investiga-

tion before seeking a jury trial waiver for a client facing

charges for rape and other sexual offenses. 342 Or at 240.

We concluded that the lawyer’s failure to review any dis-

covery and relevant case information before seeking a jury

trial waiver from the client had violated the duty to provide

competent representation, under former Disciplinary Rule

(DR) 6-101(A), the predecessor to RPC 1.1. Id. We explained

that “no manner of experience or intuition permits a law-

yer to seek his or her client’s waiver of a fundamental right

without first understanding the legal and factual issues in a

case.” Id.

To the extent that the Bar reads Bettis to establish

a categorical rule that a criminal defense lawyer’s failure to

review all available discovery always amounts to a violation

of the lawyer’s duty of competence, that reading is not quite

correct. Determining whether a lawyer has failed to provide

competent representation involves a “fact-specific inquiry.”

In re Eadie, 333 Or 42, 60, 36 P3d 468 (2001). For example,

a lack of competence may be established when the lawyer

lacks basic knowledge or fails to prepare, or the conduct

involves a combination of those factors. See In re Gastineau,

317 Or 545, 553-54, 857 P2d 136 (1993) (concluding that

lawyer violated the duty to provide competent representa-

tion by failing to review documents prepared by legal staff

and by attempting to file those documents with incorrect

filing fees).

Our fact-specific inquiry in this case leads us to

conclude that the Bar has met its burden to establish, by

clear and convincing evidence, each of the allegations that

Cite as 372 Or 589 (2024) 603

respondent did not comply with his obligation under RPC

1.1 to provide competent representation. Beginning with the

Sorensen matter, respondent conceded that he had reviewed

only the probable cause affidavit before speaking with

Sorensen and attempting to resolve her case via plea. In

the circumstances of that legal representation, respondent’s

limited review violated the duty of competence in violation

of RPC 1.1. And as explained more fully below in connection

with the RPC 1.3 violation, respondent also delayed filing

an unopposed motion to determine fitness to proceed, leav-

ing Sorensen in jail for weeks without a mental health eval-

uation or treatment, and he did not take the actions needed

to facilitate a mental health court resolution of her case.

We draw a similar conclusion as to the Arthur mat-

ter, which also involved a concession from respondent, in

his response to DCO, that he had reviewed only the prob-

able cause affidavit and otherwise spoken only to his cli-

ent, who ultimately accepted a plea that included his agree-

ment to a 72-month sentence upon revocation of probation.7

There, respondent claimed that he expended minimal effort

because Arthur had wished to enter a plea as soon as pos-

sible, to facilitate a quick release from custody. However,

the Bar showed that respondent—in addition to failing to

review discovery in Karpel8 —also opted not to interview

known witnesses or to confirm with Arthur’s probation offi-

cer regarding claims that Arthur had made about possible

credit for time served. Collectively, those failures violated

RPC 1.1.

The combined allegation involving Provencher,

Williams, and Rivers also involved plea deals accepted

before respondent had reviewed all the available discovery.

7

Powers testified that Arthur’s probation later was revoked, and he was fac-

ing a 72-month sentence based on the plea agreement, but Powers intervened,

filing a motion to set aside the judgment based, in part, on respondent’s failure

to review discovery. The trial court ultimately granted that motion, set aside his

felony conviction, and entered judgment convicting Arthur of a misdemeanor.

8

Respondent also claimed before the trial panel that he had quickly reviewed

the police report through Karpel on his iPhone, but the Karpel records reflected

that respondent neither requested nor accessed discovery—and, as explained

earlier, we are persuaded by the Bar’s evidence that Karpel recorded whether a

defense counsel accessed the discovery even if the lawyer did not download the

materials.

604 In re Munn

We address all three cases, though we note that a violation

in any of the cases would be sufficient to establish the viola-

tion alleged by the Bar.

Provencher accepted a felony plea that resulted in a

48-month prison sentence. Foster testified that none of the

photographs, audio files, or police reports were ever accessed

in Karpel, and Powers had located no paper or electronic

documents related to that case in respondent’s files.

Respondent testified that Provencher had been

remorseful and wanted to resolve the case as quickly as pos-

sible. It is true that criminal defense lawyers serve as agents

of their clients, and it is the client, and the client alone, who

can decide to pursue trial or accept a plea. See RPC 1.2(a)

(“a lawyer shall abide by a client’s decision concerning the

objectives of representation * * * [including the] plea to be

entered” in a criminal matter). However, even though that

ultimate decision falls to the client, the role of counsel is to

provide competent advice and counsel to the client to enable

them to make a fully informed decision. Determining what

information is necessary for an attorney to provide compe-

tent advice and counsel depends on the context and may

vary depending on the nature of the case, the nature and

complexity of the charges, whether other charges are, or are

about to be, brought in the current jurisdiction or elsewhere,

the potential sentence exposure, the client’s background

and criminal history, and the consequences of entering a

plea. For some matters, the individual context may require

that, to provide competent advice to the client regarding a

decision to pursue trial or accept a plea offer, defense coun-

sel may need to test the case, pursue investigation, explore

mitigation evidence, and examine possible legal challenges.

The specifics are context-dependent, not categorical. We

conclude that RPC 1.1’s duty of competence required respon-

dent to do more before advising Provencher about a plea

that resulted in a 48-month prison sentence.

Regarding the two Williams felony cases, Foster

testified that an audio file was never downloaded in the first

case, and no discovery was ever requested in the second

case but that the two recordings that were sent had never

Cite as 372 Or 589 (2024) 605

been accessed.9 Respondent testified that he reviewed police

reports in both cases, but Powers had located only minimal

discovery as to Williams—about 20 pages but no recordings

or audio files—in the client files that respondent had turned

over to her. Thus, the evidence suggests that respondent

likely reviewed at least some discovery, consisting of police

reports, although it is unclear if those reports related to only

the first case or to both cases. Although only reviewing police

reports and talking to the client might amount to competent

representation in some cases, the Williams matters resulted

in significant prison sentences—13 months and 25 months,

respectively—and there is no evidence in the record that

respondent investigated any mitigating factors or consid-

ered whether any legal challenges were available. On this

record, it seems likely that respondent’s failure to review

all the available discovery in the Williams cases violated

RPC 1.1’s duty of competent representation. But we need not

reach that conclusion as to Williams, because we concluded

that respondent violated RPC 1.1 in the Provencher case

(discussed above), and we also make the same conclusion in

the Rivers case (discussed next).

Rivers entered no-contest pleas to charges of first-

degree burglary and other felonies, resulting in a 50-month

prison sentence. In that matter, respondent had requested

discovery, but Karpel showed that he never accessed that

discovery, which had included 152 pages of documents and

recordings of statements from Rivers and the alleged vic-

tims. Powers testified that respondent’s files for Rivers con-

sisted of a single document—the plea offer. Respondent’s

failure to review any discovery before advising his client to

accept a plea offer carrying a 50-month prison sentence vio-

lated RPC 1.1.

The Bar’s final allegation under RPC 1.1 involved

respondent’s representation of Hooper at an evidentiary

hearing following appellate remand; unlike the other cases,

the Hooper case did not involve failure to review discovery

(or to review substantial amounts of discovery) prior to entry

of a plea. We discuss the Hooper matter in greater detail

9

Foster did not explain what was on those recordings or how they may have

been relevant to the Williams cases.

606 In re Munn

below, in relation to the Bar’s neglect allegation under RPC

1.3. 372 Or at 608-09. As will be seen from that discussion,

we conclude that respondent’s conduct in that matter—in

addition to violating RPC 1.3—also violated his duty to pro-

vide competent representation under RPC 1.1.10

For the foregoing reasons, we conclude that the Bar

proved by clear and convincing evidence that respondent’s

conduct violated RPC 1.1 as to each of the four violations

alleged in its complaint.

B. RPC 1.3: Neglect of a Legal Matter

The Bar also alleged that respondent had commit-

ted two violations of RPC 1.3 in connection with his rep-

resentation of clients Sorensen and Hooper; the trial panel

concluded that the Bar had proved by clear and convincing

evidence that respondent had committed the violations as

alleged. Before this court, the Bar contends that respondent

engaged in a pattern of neglect as to Sorensen and neglect

of an urgent matter as to Hooper.

RPC 1.3 provides that “[a] lawyer shall not neglect

a legal matter entrusted to the lawyer.” Neglect is a partic-

ular type of competence violation that occurs when a law-

yer unreasonably fails to act to protect the client’s interest

under circumstances that call for action. Magar, 335 Or at

320. Neglect “is not interchangeable with negligence[.]” Id.

at 320-21. The neglect inquiry “is not dependent on the out-

come of the matter at issue.” In re Knappenberger, 337 Or

15, 23, 90 P3d 614 (2004). Determining whether a lawyer

violated RPC 1.3 “is a fact-specific inquiry in which, using

an objective standard, we assess whether the lawyer acted

neglectfully.” Id. In making that determination, we view

“the lawyer’s conduct along a temporal continuum,” and con-

sider whether that lawyer engaged in “a course of neglectful

conduct that reflects a failure to act or failure to act dili-

gently.” Id. (internal quotation marks omitted). “An isolated

10

We have recognized that multiple violations can arise from the same or

similar conduct. See In re Paulson, 346 Or 676, 695-97, 216 P3d 859 (2009), adh’d

to as modified on recons, 347 Or 529, 225 P3d 41 (2010) (lawyer who represented

clients during suspension violated both RPC 1.16(a)(1) (failure to withdraw from

representation) and RPC 5.5 (unauthorized practice of law)); In re Long, 368 Or

452, 463-64, 491 P3d 783 (2021) (“earned on receipt” fees violated both RPC 1.5(a)

(charging excessive fee) and RPC 1.16(d) (failing to refund fees)).

Cite as 372 Or 589 (2024) 607

incident of negligent conduct does not establish neglect;

rather, unethical neglect exists when there is a course of

neglectful conduct in the representation of a client.” In re

Snyder, 348 Or 307, 316, 232 P3d 952 (2010); see also In re

Jackson, 347 Or 426, 435-36, 223 P3d 387 (2009) (violation

when lawyer failed to prepare for a settlement conference,

failed to submit available dates to an arbitrator, and then

failed to respond to two voicemail messages over a six-month

period). But this court has also concluded that, if the mat-

ter is urgent, even a brief period of neglect may violate the

rule. See In re Meyer (II), 328 Or 220, 223-24, 970 P2d 647

(1999) (two-month period of neglect was sufficient to estab-

lish a violation, when response to a temporary support order

had been due within 10 days, but lawyer delayed over two

months in responding, resulting harm to his client).

As to the Sorensen matter, we conclude that respon-

dent engaged in a pattern of neglect. The record shows that,

when Sorensen was arrested, she appeared to be delu-

sional, and Foster—who was the prosecutor in that case—

therefore told respondent that she would not oppose a motion

to determine fitness to proceed and respondent represented

to the trial court that he intended to file the motion. At that

juncture, even if respondent was unsure whether Sorensen

was unable to aid and assist in her defense, the fitness

evaluation could have been used for mitigation purposes.

Although respondent eventually did file such a motion, it

was not filed until almost four weeks after his appointment

and 13 days after he told the court he planned to file the

motion, leaving Sorensen in jail during that time without

any mental health evaluation or treatment. Foster testified

that a diagnosis from the state hospital was necessary for

Sorensen to participate in mental health court under the

plea agreement that Sorensen wanted to take, so the delay

in filing the motion also delayed the resolution of the case.

Foster further testified that respondent did not review any

discovery in Sorensen’s case for the entire seven months the

case was pending. The case was ultimately resolved with a

plea and a mental health court probation.

Before the trial panel, respondent countered that he

did not think that Sorensen had any mental illness and that

608 In re Munn

he could not recall any agreement to pursue mental health

court.11 We conclude that the combination of respondent’s

delay in filing a fitness-to-proceed motion that the prosecutor

would not oppose, his failure to take actions that were needed

to pursue an available mental health court option during

the seven months the case was pending, and his failure to

review the available discovery during that period, amounted

to clear and convincing evidence of a course of neglectful con-

duct over an extended period in the Sorensen matter.

As to the Hooper matter, as noted above, respondent

represented Hooper for purposes of an evidentiary hearing

following remand from the Court of Appeals. The hearing

on remand was to address the admissibility of certain “other

acts” evidence shown on video exhibits; the Court of Appeals

had directed the trial court to weigh the probative value of

the evidence against the risk of unfair prejudice. Respondent

had more than three months before the hearing to acquaint

himself with the issue on remand, obtain and review the evi-

dence, and obtain from Montague (Hooper’s appellate counsel)

a supplemental transcript prepared by appellate counsel that

was relevant to the issue on remand. Respondent took none of

those actions. Montague testified about the importance and

urgency of acting promptly on remand, but the transcript of

the evidentiary hearing before the trial court reveals that

respondent had not reviewed the appellate brief and was

unaware of the issues in the case; respondent also ignored his

client’s repeated attempts to interject that they were using

the wrong transcript. The trial court ultimately concluded—

in the prosecution’s favor—that the disputed evidence had

been properly admitted; it therefore reinstated Hooper’s con-

victions and then sentenced him to 90 months in prison.12

At the trial panel hearing, respondent testified that

he already had known that Hooper would not prevail at the

remand hearing, but he denied being unprepared, though he

11

Although respondent testified that he could not recall any agreement to

pursue a mental health court resolution for Sorensen’s case, we credit Foster’s

testimony about the availability of mental health court and respondent’s delay in

accessing discovery and taking the steps necessary to resolve the case through

mental health court.

12

As described earlier, Montague was sufficiently alarmed by respondent’s

mishandling of the matter on remand that she complained to OPDS.

Cite as 372 Or 589 (2024) 609

conceded that he had not reviewed the supplemental tran-

script from Montague. Respondent’s claim that he had been

adequately prepared is refuted by the transcript from the

remand hearing, which is part of the record in this case.

Given the importance of the evidentiary hearing to Hooper’s

case, and the fact that respondent had three months to pre-

pare for it, his failure to prepare amounted to neglect of a

legal matter under RPC 1.3, as alleged in the Bar’s com-

plaint. See generally Meyer, 328 Or 220 (two-month period of

neglect sufficient when case involves a discrete and urgent

issue).

In sum, we conclude that the Bar has met its bur-

den to prove its two alleged violations of RPC 1.3 by clear

and convincing evidence.

C. RPC 1.4(b): Failure to Adequately Explain

The Bar also alleged three violations of RPC 1.4(b)—

as to Arthur, Sorensen, and, as a combined allegation,

Provencher, Williams, and Rivers—and the trial panel con-

cluded that the Bar had proved those violations. On review,

the Bar contends that respondent violated RPC 1.4(b) when

he advised those five clients to accept plea offers without

reviewing material discovery.

RPC 1.4(b) requires a lawyer to “explain a matter

to the extent reasonably necessary to permit the client to

make informed decisions regarding the representation.” To

support its allegations, the Bar relies primarily on Snyder,

348 Or 307, which involved a lawyer’s failure to properly

inform a client about the risks and weaknesses in his civil

case. See also In re Gatti, 356 Or 32, 51-52, 333 P3d 994

(2014) (concluding that lawyer violated RPC 1.4(b) by fail-

ing to accurately convey information regarding how a set-

tlement would be allocated); In re Bertoni, 363 Or 614, 633,

426 P3d 614 (2018) (concluding that the lawyer had violated

RPC 1.4(b) by failing to explain to the client how work on

cases would be handled or what the client’s financial obliga-

tions would be).

As to its RPC 1.4(b) allegations, the Bar did not

present to the trial panel any evidence of the substance

of respondent’s communications to the five named clients,

610 In re Munn

and none of those clients testified. Nonetheless, the seri-

ous nature of the charges, combined with respondent’s fail-

ure to review substantially any discovery in those cases—

particularly respondent’s failure to review any discovery in

the Sorensen, Arthur, Rivers or Provencher cases—leads us

to conclude that, because respondent was so ill-prepared and

uninformed about the strength of the state’s cases, he could

not have explained matters to the extent reasonably nec-

essary to permit the client to make informed decisions. We

have already concluded that, other than the Williams cases,

respondent violated his RPC 1.1 duty of competent repre-

sentation by failing to review any available discovery before

resolving those cases by plea agreement. In this context,

those violations also constituted violations of RPC 1.4(b).

Plea agreements, by their nature, require weighing

the risks of proceeding to trial against the consequences

specified in the plea offer. Without a meaningful under-

standing of the state’s evidence, a defense lawyer may be

unable to explain those risks to their client intelligently or

adequately. Depending on a client’s wishes and other cir-

cumstances, an exhaustive review of every page of discov-

ery may not always be required to understand and explain

the risks and benefits to the “extent reasonably necessary to

permit the client to make informed decisions” about a plea

offer as required by RPC 1.4(b), but respondent’s conduct fell

far below what was reasonably required.

The record here reveals that the Arthur, Rivers,

and Provencher cases were all resolved through pleas before

respondent had reviewed any of the available discovery.

Our review of the record reveals no evidence justifying

that action. Rivers and Provencher received lengthy prison

sentences pursuant to their plea agreements, and Arthur

agreed that he would be sentenced to a lengthy term of

imprisonment upon revocation of his probation. Respondent

had seven months to review the discovery in Sorensen before

attempting to resolve that case.13 Based on respondent’s

13

In the Sorensen case, respondent attempted to have his client plead, but

the trial court refused to accept her plea without respondent having taken the

steps necessary for Sorensen to participate in mental health court. At the con-

tinued plea hearing, Foster objected because respondent had not reviewed any

discovery. The case was eventually resolved by another lawyer.

Cite as 372 Or 589 (2024) 611

failure to review any of the discovery in those cases, he did

not have enough information to adequately explain the risks,

consequences, and alternatives to those clients before they

entered pleas, resulting in three violations of RPC 1.4(b), as

alleged.

D. RPC 8.1(a)(2): Failure to Provide Requested Information

to DCO

The Bar alleged that respondent violated RPC

8.1(a)(2) by knowingly failing to respond to DCO’s requests

for information.

RPC 8.1 provides, in part:

“(a) * * * [A] lawyer in connection with a * * * disci-

plinary matter[ ] shall not:

“* * * * *

“(2) * * * knowingly fail to respond to a lawful demand

for information from [a] * * * disciplinary authority [with an

exception that does not apply here].”

That rule “requires full cooperation from a lawyer who is the

subject of a disciplinary investigation.” In re Schaffner, 325 Or

421, 425, 939 P2d 39 (1997) (emphasis in original; applying

former DR 1-103(C) (1995), the predecessor to RPC 8.1(a)(2)).14

See also In re Long, 368 Or 452, 464, 474, 491 P3d 783 (2021)

(describing a violation of RPC 8.1(a)(2) as “failing to cooper-

ate with Bar disciplinary investigation”). A lawyer’s partial

cooperation, “such as responding only when and if the mat-

ter escalates to [a formal] investigation, reduces the extent of

the violation but does not absolve a lawyer” under the rule.

Schaffner, 325 Or at 425 (citing In re Haws, 310 Or 741, 749-

51, 801 P2d 818 (1990)). See also In re Paulson, 346 Or 676,

695, 216 P3d 859 (2009), adh’d to as modified on recons, 347

Or 529, 225 P3d 41 (2010) (lawyer’s “initial failure to respond

and his later inadequate response violated RPC 8.1(a)(2)”).

As described earlier, respondent did respond to

DCO’s multiple requests for information, but only partially.

That is, he initially provided what amounted to general

14

DR 1-103(C) (1995) provided that a lawyer who is the subject of a disci-

plinary investigation “shall respond fully and truthfully to inquiries from and

comply with reasonable requests” for information by the investigating body.

612 In re Munn

denials, but he did not respond to DCO’s inquiries about

specific cases. He did not provide specific responses to the

list of 37 cases identified in DCO’s request until more than

a year after the requests, after the Bar had filed its formal

complaint. Collectively, those incomplete and inadequate

responses fell short of his obligation to respond to DCO’s

requests for information.

From the foregoing, we conclude that the Bar proved

by clear and convincing evidence that respondent violated

RPC 8.1(a)(2). Although he did not entirely fail to respond

to the Bar’s inquiries, he provided conflicting, incomplete,

and delayed responses. As in Schaffner, Paulson, and Haws,

providing a delayed response after the Bar had filed its for-

mal complaint may have reduced the extent of the violation,

but it did not absolve respondent for his failure to respond to

DCO’s specific questions.

E. Sanction

Having concluded that the Bar proved the 10 vio-

lations set out in its complaint, we proceed to consider the

appropriate sanction. In determining the appropriate sanc-

tion, we follow the framework set out in the ABA’s Standards

for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA

Standards). In re Herman, 357 Or 273, 289, 348 P3d 1125

(2015). Under that framework, we first consider three factors

that point to a preliminary determination of the appropriate

sanction: (1) the ethical duty violated; (2) the respondent’s

mental state; and (3) the potential or actual injury caused

by that violation. ABA Standard 3.0. Next, we consider any

aggravating or mitigating circumstances that are relevant

to our determination of the appropriate sanction. Herman,

357 Or at 289. Finally, we decide the appropriate sanction in

light of this court’s case law. Id.

1. Preliminary Determination

Following from our discussion above, we conclude

that respondent engaged in conduct that violated duties

owed to multiple clients to provide competent representation

and to act with diligence and promptness. ABA Standard

4.4, 4.5. He also violated the duty that he owed to the pub-

lic and to the legal profession when he failed to respond to

Cite as 372 Or 589 (2024) 613

DCO’s inquiries. See ABA Standard 5.0, 7.0; In re Kluge,

335 Or 326, 349-50, 66 P3d 492 (2003) (failure to respond to

disciplinary investigation violates duties owed to the public

and the legal profession).

As to the mental state when he engaged in the mis-

conduct at issue, we find that respondent acted knowingly

when he failed to respond to the Bar’s investigation and

when he advised multiple clients to waive their constitu-

tional right to trial and plead to criminal charges without

adequately preparing. We further conclude that respondent

acted knowingly when he failed to prepare for Hooper’s evi-

dentiary hearing on remand and in connection with his rep-

resentation of Sorensen.15

Respondent’s conduct caused actual and potential

injury to his clients, as well as to the public, the legal system,

and the profession. See In re Hostetter, 348 Or 574, 600, 238

P3d 13 (2010) (“Under the ABA Standards, injuries caused by

a lawyer’s professional misconduct may be actual or poten-

tial.”). For example, respondent’s delay in filing an undis-

puted motion to determine fitness to proceed in Sorensen’s

case left her languishing in jail for weeks without any mental

health evaluation or treatment and delayed her participation

in mental health court. His failure to prepare for Hooper’s

hearing on remand or to respond to Arthur’s urgent inquiries

regarding his plea agreement undoubtedly caused his clients

anxiety and uncertainty, see Snyder, 348 Or at 321 (noting

that “[c]lient anguish, uncertainty, anxiety, and aggravation

are actual injury under the disciplinary rules”), when, as

noted above, both clients faced the potential of lengthy prison

sentences. Additionally, respondent’s failure to respond to the

Bar caused actual injury to the public and the legal profession.

OPDS, a public agency supported by Oregon taxpayers, spent

more than $300,000 to audit respondent’s cases attempting to

identify and minimize the harm he had caused.

Respondent’s actions undermined the criminal jus-

tice system, which depends upon competent representation

15

To act “knowingly,” an attorney must “be aware of the relevant facts,” but

knowledge “does not require an attorney’s subjective awareness that [they are]

violating a rule of professional conduct.” In re Conry, 368 Or 349, 373, 491 P3d 42

(2021).

614 In re Munn

of indigent defendants, by failing to provide adequate rep-

resentation while under contract with OPDS. Although the

Bar did not charge separate violations in each of the 37

cases, we conclude as an aggravating factor that there is

sufficient evidence in the record that, by failing to review

discovery in those cases, respondent exposed those clients

to a substantial and unjustifiable risk that he missed mit-

igating evidence or available legal challenges that might

have substantially decreased or altogether avoided their

sentences.

Turning to a preliminary sanction determination,

the ABA Standards suggest that a suspension is appropri-

ate. For example, suspension is generally appropriate when

a lawyer “knowingly fails to perform services for a client” or

“engages in a pattern of neglect” that causes injury to a cli-

ent. ABA Standard 4.4. Competence violations that warrant

a suspension typically involve both knowledge regarding the

lack of competence and, as here, injury to the client. ABA

Standard 4.5. Suspension is similarly appropriate for a law-

yer who knowingly fails to follow proper procedure or rules

resulting in harm to a client or to the integrity of the legal

process. ABA Standard 5.2. Finally, suspension is appropri-

ate when a lawyer knowingly engages in conduct that is a

violation of a duty owed to the profession and causes injury

to a client, the public, or the legal system. ABA Standard

7.0.

2. Aggravating and Mitigating Factors

The trial panel identified four aggravating factors:

(1) pattern of misconduct, ABA Standard 9.22(c); (2) multiple

offenses, ABA Standard 9.22(d); (3) vulnerability of victims,

ABA Standard 9.22(h); and (4) substantial experience in the

practice of law, ABA Standard 9.22(i). Those aggravating

factors are undisputed, and we consider them as well.

The trial panel also identified two mitigating fac-

tors: (1) absence of prior disciplinary record, ABA Standard

9.32(a); and (2) personal or emotional problems, ABA

Standard 9.32(c). After reviewing the record, we agree that

those mitigating factors are present.

Cite as 372 Or 589 (2024) 615

Respondent contends that the trial panel overlooked

two additional mitigating factors. For the following reasons,

we disagree.

He first contends that the panel should have con-

sidered the delay in proceedings, citing a three-year delay

between DCO’s initial inquiry and the trial panel hearing.

A delay in disciplinary proceedings can be a mitigating fac-

tor under ABA Standard 9.32(j). See In re McDonough, 336

Or 36, 45, 77 P3d 306 (2003) (applying that factor when Bar

filed formal complaint in 2001 alleging criminal acts, some

of which occurred in the 1980s). This court’s case law, how-

ever, suggests that, when the lawyer is responsible for a sig-

nificant part of the delay, that factor is not given any weight.

In re Devers, 328 Or 230, 244 n 7, 974 P2d 191 (1999); see also

Paulson, 346 Or at 720 (agreeing that no weight in mitiga-

tion should be given to the delay in proceedings if respon-

dent was a “significant contributing factor” in the delay).

Here, respondent was responsible for a significant part of

the delay because he failed to timely and fully respond to

DCO’s requests for information.16 Under the circumstances,

we do not believe the delay in proceedings is a significant

mitigating factor in this case.17

Second, respondent argues that we should consider,

as a mitigating factor, his administrative suspension under

BR 7.1 for failing to respond to DCO. See ABA Standard

9.32(k) (“imposition of other penalties or sanctions” listed as

a mitigating factor).18 Again, we disagree. Generally, that

factor has been treated as a mitigating factor only when

the earlier sanction was imposed by different authorities or

jurisdictions for the same misconduct. See, e.g., In re Griffith,

304 Or 575, 637, 748 P2d 86 (1987) (applying factor when

some of lawyer’s indebtedness had likely been reduced by

16

Respondent asserts in his opening brief that the trial panel hearing was

originally set at an earlier time but was delayed when he attempted (unsuccess-

fully) to settle the case so that he could take a job out of state. That evidence was

not presented to the trial panel, however, and so it is not properly before us.

17

In one case, we assumed that a three-year delay between the filing of the

initial Bar grievance and the trial panel decision could be a mitigating factor but

concluded that the mitigating factors in that case were “substantially outweighed

by the aggravating factors.” In re Ramirez, 362 Or 370, 385, 408 P3d 1065 (2018).

18

The Bar’s Motion for Leave to File Memorandum of Additional Authorities

on this issue, opposed by respondent, is denied.

616 In re Munn

civil judgments against him); In re Chase, 339 Or 452, 459,

121 P3d 1160 (2005) (trial panel considered both financial

difficulties and other sanctions as mitigating factors when

lawyer suspended for failing to comply with child support

order). Moreover, the administrative suspension imposed

under BR 7.1 would have terminated if respondent had com-

plied with the Bar’s request for information. BR 7.1(g). Thus,

the length of that suspension was within respondent’s con-

trol. Respondent did not respond to the Bar’s administra-

tive sanction petition at all, and he did not fully respond to

DCO’s request for information until after the Bar filed its

formal complaint.19 Although we agree that, in some cases,

an administrative sanction for conduct that also violates

RPC 8.1(a)(2) might be an appropriate mitigating factor,

we do not think that the Bar’s administrative sanction was

a significant mitigating factor under the circumstances of

this case.

In sum, we agree with the trial panel that only

two mitigating factors apply: absence of a prior disciplinary

record, and personal or emotional problems that may have

affected respondent’s practice during the time in question.

3. Case Law

Finally, we turn to our case law for guidance in

determining the sanction, and we agree with the Bar that a

sanction of 24 months is appropriate. The purpose of a sanc-

tion is not to punish the lawyer, but to protect the public.

In re Renshaw, 353 Or 411, 419, 298 P3d 1216 (2013) (citing

ABA Standard 1.1). In general, a single violation of the duty

of competence would typically result in a suspension rang-

ing from 30 to 60 days, and multiple violations can result in

30-to-60-day suspensions for each violation. See, e.g., Bettis,

342 Or at 241-42 (30-day suspension when lawyer failed to

review discovery before advising client to waive jury trial);

In re Roberts, 335 Or 476, 71 P3d 71 (2003) (60-day suspen-

sion for two violations involving neglect and conduct preju-

dicial to administration of justice); Knappenberger, 337 Or at

17 (90-day suspension for two violations, one knowing and

one negligent, involving neglect). And this court typically

19

We have emphasized that failing to respond to the Bar’s investigation “is

not a viable strategy for avoiding sanction.” Long, 368 Or at 459.

Cite as 372 Or 589 (2024) 617

imposes a 60-day suspension for failing to respond to DCO

requests. See In re Miles, 324 Or 218, 224-25, 923 P2d

1219 (1996) (120-day suspension imposed for two failures

to respond to disciplinary inquiry); In re Schaffner, 323 Or

472, 481, 918 P2d 803 (1996) (60-day suspension imposed

for neglect and additional 60-day suspension for failure to

respond disciplinary inquiry); see also In re Lopez, 350 Or

192, 194, 252 P3d 312 (2011) (9-month suspension for mul-

tiple violations involving failures to adequately explain,

neglect, and competence affecting seven separate clients).

After considering respondent’s mental state, the

duties violated, the injury caused, aggravating and mitigat-

ing factors and our case law, we agree with the trial panel

that a 24-month suspension is appropriate.

Respondent is suspended from the practice of law

for a period of 24 months, effective 60 days from the filing of

this decision.