In Re Complaint as to the Conduct of Carini

No. 36 August 15, 2013 47

IN THE SUPREME COURT OF THE

STATE OF OREGON

In re Complaint as to the Conduct of

PETER CARINI,

Accused.

(OSB 10125; SC S060708)

En Banc

On review from a decision of a trial panel of the

Disciplinary Board.

Argued and submitted April 30, 2013.

Lee S. Werdell, Bend, argued the cause and filed the

briefs for the accused.

Stacy J. Hankin, Assistant Disciplinary Counsel, Tigard,

argued the cause and filed the brief for the Oregon State

Bar.

PER CURIAM

The accused is suspended from the practice of law for

30 days, commencing 60 days from the date of filing of this

decision.

In this attorney discipline proceeding, the Bar charged the accused with

violating Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits engaging

in conduct that is prejudicial to the administration of justice. The trial panel

determined that the accused had violated that rule, and it recommended his

suspension from the practice of law for 30 days. On review, the accused challenges

the trial panel’s determinations regarding the rule violation and sanction,

arguing that the Bar failed to prove that his conduct caused “substantial harm”

to the administration of justice; that the Bar had impermissibly based on the

charge in this case on his aggregated conduct in representing four different

clients, and that the Bar was required to prove that he had intended to prejudice

the administration of justice, and that the Bar had failed to do so. Held: On de

novo review the Supreme Court held that the accused violated RPC 8.4(a)(4) by

his repeated, negligent, failures to appear for scheduled court proceedings, and

that his conduct had resulted in some harm to the administration of justice. The

court rejected the accused’s argument that the Bar impermissibly based on the

charge on his aggregated conduct, and also rejected the accused’s contention that

the Bar was required to prove that he had acted intentionally.

The accused is suspended from the practice of law for 30 days, commencing

60 days from the date of filing of this decision.

48 In re Carini

PER CURIAM

In this attorney discipline proceeding, the Bar

charged the accused with violating Rule of Professional Con-

duct (RPC) 8.4(a)(4), which prohibits engaging in conduct

that is prejudicial to the administration of justice.1 The

trial panel determined that the accused had violated that

rule, and it recommended his suspension from the practice

of law for 30 days. On review, the accused challenges the

trial panel’s determinations regarding the rule violation

and sanction. On de novo review, we find that the accused

violated RPC 8.4(a)(4), and we further conclude that a

30-day suspension is the appropriate sanction.

I.  FACTUAL BACKGROUND

This proceeding arose out of the accused’s failures

to appear in court for scheduled hearings in the course of

representing four different clients. The accused is a criminal

defense attorney, and all four of his clients in the proceedings

at issue here were defendants facing pending criminal

charges before the Josephine County Circuit Court. We find

the following facts by clear and convincing evidence.

A.  The Gales and Lockwood Matters

The accused represented Gales in a criminal pro-

ceeding; the case was set for a docket call on April 21, 2010.

The accused also represented Lockwood in a criminal pro-

ceeding that was set for docket call the same day. The

accused had received notice of the docket calls in each case

in February 2010, and the appearances were entered on his

calendar.

At docket call, which occurs on the Wednesday

before the week that a case is scheduled for trial, the parties

report whether they are ready for trial the following week.

Information obtained at docket call allows the court to

efficiently and accurately determine which of the trials that

are scheduled for the following week will actually be tried

1

RPC 8.4(a)(4) provides:

“(a)  It is professional misconduct for a lawyer to:

“* * * * *

“(4)  engage in conduct that is prejudicial to the administration of justice[.]”

Cite as 354 Or 47 (2013) 49

and which will be reset, either on motion or because there are

insufficient judges available. Pursuant to a Josephine County

Circuit Court local rule, attorneys are required to appear for

a docket call either in person or, if prior arrangements are

made, by telephone. The mandatory appearance rule allows

the court to simultaneously obtain all the information that it

needs from the parties and communicate the trial schedule

to the parties in an orderly and efficient manner.

The accused did not appear for docket call on April 21

in either the Gales or Lockwood cases. His clients did not

appear either. As a consequence, the court issued arrest war-

rants for both Gales and Lockwood. The court telephoned the

accused later in the day on April 21 to inquire why he had

not appeared. The accused replied that he had had a trial in

another county, that he had forgotten to call the court, and

that he had forgotten to give the court a call back number.

Presiding Judge Wolke instructed the accused to

send a letter to the court explaining why he had not been pre-

sent at the docket call. The accused did so, stating that it

was his office policy for a staff member to arrange for a

telephone appearance for docket calls and that he thought

that such an arrangement had been made for the April 21

docket calls. However, an employee of the accused, Byrnes,

testified before the trial panel that the court’s “general

policy” was for the accused to appear in person unless specific

arrangements had been made for a telephone appearance.

According to Byrnes, if a telephone appearance had been

arranged, a notation to that effect would have been placed

on the accused’s office calendar. No such notation had been

made for the April 21 docket call appearances.

B.  The Burton Matter

The accused represented Burton in a criminal pro-

ceeding that was set for a docket call on June 9, 2010, with

trial to follow on June 17. Pursuant to the court’s local rules,

the accused made prior arrangements to appear by telephone

at the docket call. At the appointed time, the court called the

accused at the number that he had provided. However, the

accused did not answer; instead, the voicemail message gave

another number to call. The court called that second num-

ber, and no one answered. The accused had begun having

50 In re Carini

trouble with his office phone system in March 2010. The

accused knew of the problems with the phone system, but he

failed to take steps to ensure that the court could reach him

for the docket call on June 9.

Burton did not appear at the docket call, nor did

either the accused or Burton appear for trial on June 17. At

that point, the court issued a warrant for Burton’s arrest. On

August 5, the court held a further hearing at the accused’s

request to resolve the outstanding arrest warrant. Both the

accused and Burton appeared at the August 5 hearing, and

the court recalled the arrest warrant.

C.  The Westfall Matter

The accused represented Westfall in a criminal

proceeding. A status hearing was set for May 17, 2010, at

1:30 p.m. At a status hearing, the parties report whether any

discovery issues exist in a case and whether the case will be

resolved with a plea or should be set for trial. The status hear-

ing is an important scheduling tool for the court, because 70

to 80 percent of the cases are resolved with a plea at status

hearings. The results of those hearings allow the court to

focus its limited time and resources on those cases that will

be tried.

The accused received notice of the status hearing

and set the matter on his calendar. The accused called the

court at 1:27 p.m. on May 17 and advised that he would be

late because he had a court appearance in a different county.

The court deferred considering the Westfall matter until

2:45 p.m. Because neither the accused nor Westfall had arrived

by then, the court issued a warrant for Westfall’s arrest.

The accused arrived at the Josephine County courthouse at

about 3:15 p.m., after the court had recessed.

On May 28, the court held another status hearing in

the Westfall case at the accused’s request. Both the accused

and Westfall appeared at that hearing, and the court

recalled the warrant for Westfall’s arrest.

Cite as 354 Or 47 (2013) 51

D.  The Trial Panel Decision

On October 28, 2010, the Bar filed a formal com-

plaint charging the accused with having violated RPC

8.4(a)(4) by missing the three docket calls and the status

hearing. A trial panel was appointed, and the matter was

heard on October 4, 2011, and May 17, 2012. The trial panel

issued an opinion that included the following findings:

“The accused’s actions in all four cases violated his

duty to the legal process and his profession and the duty

to protect his clients by failing to abide by court rules. His

conduct was prejudicial to the administration of justice in

the following particulars:

“He wasted court and staff time in having to deal with

his inability to be prompt either in person or by phone for

these various court matters. The court is short handed and

does not have the time to deal with the accused and his

failure to appear for court hearings. In addition, warrants

had to be issued for all four cases.

“*  *[T]he accused knew the phone system was failing

*

and took no action (until the system was replaced) to ensure

his appearances in court. His conduct in the cases [came]

after he had previously been disciplined in Carini I for a

similar violation. He was given a 30-day suspension which

was suspended provided he completed certain conditions.

The accused was on notice that his failure to follow the

court rules in the future would not be tolerated.

“The trial panel finds that the Josephine County Circuit

Court has just and actual injuries in the form of additional

work, additional staff and additional court time dealing

with the accused’s failure to appear. Westfall potentially

could have been injured as the court issued a warrant

for his arrest for failure to appear. Nothing came of it as

Westfall accepted a plea deal the day after the warrant was

issued.”

With regard to the proper sanction, the trial panel

found, as an aggravating factor, that the accused had a prior

disciplinary offense. That offense was based on a February

2010 decision by a Disciplinary Board trial panel that the

52 In re Carini

accused had violated RPC 3.4(C) 2 and RPC 8.4(a)(4) when,

for an extended period in late 2007, in violation of a court

rule, he did not resolve known trial scheduling conflicts,

resulting in his failure to appear for trial in Josephine

County Circuit Court. (Carini I). When the accused did not

appear for trial, the court was forced to dismiss a jury called

to hear the case. The trial panel in that proceeding also

found that the accused had violated a different rule, RPC

1.4(a),3 in connection with his representation of another

client. The trial panel imposed a 30-day suspension, but

stayed the suspension pending 90 days’ probation. During

that probationary period, the accused was required to adopt

measures to avoid the type of scheduling conflicts that had

caused the violations at issue. The probationary period in

Carini I began on April 24, 2010, and ended on July 23, 2010.

The conduct at issue in this proceeding occurred either just

before or during the 90-day probationary period in Carini I.4

The trial panel in this proceeding also found that

the accused had substantial experience in the practice of law,

and had not “demonstrate[d] any appreciable appreciation

as to the effects of his actions, or lack of action, has had

on the court or much less on his clients.” In mitigation, the

panel found that the accused had not acted dishonestly

and had cooperated during the disciplinary process. After

considering those aggravating and mitigating factors, the

trial panel recommended that the accused be suspended

from the practice of law for 30 days.

II.  THE PARTIES’ CONTENTIONS

On review, the accused first contends that the Bar

failed to prove that his conduct resulted in “substantial

2

RPC 3.4(c) provides:

“A lawyer shall not:

“* * * * *

“(c)  knowingly disobey an obligation under the rules of a tribunal, except

for an open refusal based on an assertion that no valid obligation exists[.]”

3

RPC 1.4(a) provides:

“(a)  A lawyer shall keep a client reasonably informed about the status of

a matter and promptly comply with reasonable requests for information[.]”

4

Neither the accused nor the Bar appealed the trial panel’s decision in Carini I

to this court.

Cite as 354 Or 47 (2013) 53

harm,” which, he asserts, is necessary to establish that his

conduct prejudiced the administration of justice in violation

of RPC 8.4(a)(4). According to the accused, the issuance of

an arrest warrant is “simply a matter of a clerk pushing a

button which causes the warrant to be printed,” and there-

fore, his failures to appear did not substantially increase

the amount of time or effort that court staff had to expend.

Moreover, the accused asserts, because his clients failed

to appear at their respective court proceedings, and he

had no control over their choices in that regard, the court

would have issued the arrest warrants anyway, and thus,

his own failure to appear had no additional impact on court

operations. The accused reasons that the time that the court

spent calling him to determine whether he would appear

was insignificant and that “all activities of the judge and his

clerk were accomplished in the normal course of their work

during regular work hours.” In all, the accused opines, the

court likely expended no more than 15 minutes as a result

of his failures to appear. The accused relies on this court’s

decision in In re Lawrence, 350 Or 480, 256 P3d 1070 (2011),

for the proposition that time and effort that a court spends

communicating with an attorney concerning the attorney’s

conduct cannot “serve as the basis for a finding of substantial

harm in violation of [RPC 8.4(a)(4)].”

Second, the accused asserts that the Bar imper-

missibly based the charge in this case on his aggregated

conduct in representing four different clients. The accused

argues that permitting the Bar to combine, in a single charge

based on RPC 8.4(a)(4), instances of conduct involving

multiple client representations would expose “almost every

lawyer who has practiced over a lengthy period of time” to

prosecution under that rule. Accordingly, the accused urges

this court to conclude that a charge under RPC 8.4(a)(4)

must be limited to conduct occurring within the course of a

single representation of a single client.

Finally, the accused asserts that, to violate RPC

8.4(a)(4), an attorney must intentionally engage in conduct

that is prejudicial to the administration of justice. The

accused asserts that no evidence in the record shows that

he intended to miss his court appearances. The accused

54 In re Carini

asserts that we noted, but did not decide, that issue in In re

Claussen, 322 Or 466, 909 P2d 862 (1996).5

The Bar replies that the accused repeatedly vio-

lated court rules in ways that were prejudicial to the admin-

istration of justice because, “when a lawyer does not appear

for a docket call or a scheduling conference, then the court

must take additional steps to contact the lawyer in order to

obtain the information it needs to manage the docket. Issuing

warrants also requires staff and judicial time.” The Bar

further asserts that the accused’s failures to appear created

the potential for harm to his clients, who were exposed to

the risks of arrest and unrepresented court appearances.

With regard to the accused’s second argument, the

Bar contends that the text of RPC 8.4(a)(4) does not pro-

hibit the aggregation of conduct involving multiple client

representations in a single charge for violating that rule.

Finally, the Bar asserts that RPC 8.4(a)(4) does not include a

mental state requirement, relying on this court’s statement

in Claussen, 322 Or at 482, that the rule “focuses on the

effect a lawyer’s conduct has on the administration of justice,

rather than on the lawyer’s state of mind when the conduct

is undertaken.”

III. ANALYSIS

With the parties’ arguments so framed, we return

to the text of RPC 8.4(a)(4). As noted, that rule provides:

“(a)  It is professional misconduct for a lawyer to:

“* * * * *

“(4)  engage in conduct that is prejudicial to the

administration of justice[.]”

To establish a violation of RPC 8.4(a)(4), the Bar must prove

that (1) the accused lawyer’s action or inaction was improper;

(2) the accused lawyer’s conduct occurred during the course

5

The accused also raises several challenges to RPC 8.4(a)(4) under the state

and federal constitutions. Among other arguments, the accused asserts that RPC

8.4(a)(4) is “void for vagueness.” The accused acknowledges that we rejected a simi-

lar argument in In Re Rook, 276 Or 695, 556 P2d 1351 (1976), but he asks that we

overrule the decision in that case. We decline to do so. Accordingly, we reject the

accused’s argument that RPC 8.4(a)(4) is “void for vagueness,” and we reject his

remaining constitutional challenges without discussion.

Cite as 354 Or 47 (2013) 55

of a judicial proceeding; and (3) the accused lawyer’s con-

duct did or could have had a prejudicial effect upon the

administration of justice. See In re Kluge, 335 Or 326, 345,

66 P3d 492 (2003) (so stating for identically worded former

DR 1-102(A)(4)). There are two pertinent aspects to the

“administration” of justice: “1) The procedural functioning of

the proceeding; and 2) the substantive interest of a party in

the proceeding.” In re Haws, 310 Or 741, 747, 801 P2d 818

(1990). “A lawyer’s conduct could have a prejudicial effect

on either component or both.” Id. To prove prejudice to the

administration of justice, the Bar must show that an

attorney’s conduct:

“[H]armed [or had the potential to harm] the procedural

functioning of the judicial system, either by disrupting or

improperly influencing the court’s decision-making process

or by creating unnecessary work or imposing a substantial

burden on the court or the opposing party.”

Lawrence, 350 Or at 487. Finally, prejudice to the admin-

istration of justice “may arise from several acts that cause

some harm or a single act that causes substantial harm to

the administration of justice.” Kluge, 335 Or at 345.

With that understanding, we turn to the accused’s

argument that the Bar failed to prove that his conduct

prejudiced the administration of justice. Here, the accused

failed on four occasions to appear for scheduled court

hearings. Under Kluge, the question is not whether each of

those acts caused “substantial harm,” but rather whether,

taken as a whole, those acts caused “some harm.” We con-

clude that the accused’s conduct caused some harm to the

administration of justice in the Josephine County Circuit

Court. The accused’s multiple absences required court staff

to attempt to locate him, required the court to issue arrest

warrants for his clients after those clients failed to appear

for their scheduled hearings, and required the court to

schedule and conduct additional hearings. We reject the

accused’s characterization of those efforts as minimal or

merely a matter of routine. The repeated nature of the

accused’s conduct distinguishes this case from Lawrence,

where the issue was whether a single act by an attorney had

caused “substantial harm” to the procedural functioning of

56 In re Carini

the judicial system. See 350 Or at 488-89 (accused did not

cause substantial harm by causing judge to call accused

to chambers to discuss judge’s “concern” about accused’s

release of hearing transcript).

Our conclusion is not undermined by the fact that

the accused’s clients also failed to appear for the scheduled

hearings. The presiding judge testified before the trial panel

that, when an attorney appears at docket call but his or

her client fails to appear, the court generally provides the

attorney with an opportunity to produce the client before a

warrant is issued or, alternatively, to give an explanation for

the client’s absence. In some circumstances, the explanation

provided by the attorney can obviate the need for issuance of

an arrest warrant. The accused’s failure to appear deprived

the court of that possible benefit and, as explained above,

required the court to expend additional time and resources.

Similarly, despite their own failures to appear, the accused’s

clients would have benefitted from the accused’s presence

at the hearings to provide the court with some information,

however minimal, regarding the status of their cases.

We turn to the accused’s second argument that the

Bar improperly aggregated, in a single charge, conduct that

occurred in the course of multiple client representations.

That argument also is unpersuasive. As discussed, RPC

8.4(a)(4) prohibits an attorney from engaging “in conduct”

that is prejudicial to the administration of justice. Nothing

in the text of the rule limits the scope of its prohibition to

conduct occurring in the course of a single representation,

and we discern no logical support for such a limitation.

In In re Wyllie, 326 Or 447, 952 P2d 550 (1998), this court

considered, in determining that the accused had violated

former DR 1-102(a)(4), five instances where the accused had

appeared for court proceedings while intoxicated. Those

instances occurred over a three-year period. As we explained:

“The accused appeared in court on several occasions

while impaired by the use of alcohol. In each case described

above, the judge was distracted from the substance of the

proceeding by the accused’s condition. On at least two

occasions the accused’s condition resulted directly in the

need to delay the proceedings. Additionally, the accused’s

Cite as 354 Or 47 (2013) 57

impaired state during his representation of defendants in

criminal cases created a risk that those defendants would

not receive adequate assistance of counsel and that any

conviction or plea would be vulnerable to attack on appeal

or in post-conviction proceedings, potentially placing addi-

tional burdens on the courts.

“In summary, the accused engaged in repeated

instances of conduct, each of which caused some harm to the

procedural functioning of the courts. Accordingly, we con-

clude that he violated DR 1-102(A)(4).”

Id. at 453-54. Because the accused’s proposed limitation

lacks support in the text of the rule and is inconsistent with

our previous application of it, we reject his second argument

without further discussion.

Finally, we turn to the accused’s argument that the

Bar was required to prove that he intended to miss court

appearances in order to establish a violation of RPC 8.4(a)(4)

and that it failed to do so. As noted, the Bar counters that,

because RPC 8.4(a)(4) does not contain an express mental

state requirement, it was not necessary to prove that the

accused acted with a culpable mental state. As an initial mat-

ter, we decline the accused’s invitation to read into the

rule an intent element that does not appear in its text.

See Claussen, 322 Or at 482 (implicitly rejecting a similar

argument that predecessor rule, former DR 1–102(A)(4),

required proof of intent and stating that “[t]he focus

of the rule is on the effect of a lawyer’s conduct on the

administration of justice, rather than on the lawyer’s state

of mind when the conduct is undertaken”); see also In re

Marandas, 351 Or 521, 536, 270 P3d 231 (2012) (same);

In re Stauffer, 327 Or 44, 59, 956 P2d 967 (1998) (stating

that former DR 1–102(A)(4) “focuses on the effect of the

lawyer’s conduct, not on the lawyer’s intent.”).

However, that conclusion does not require us to

embrace the Bar’s assertion that RPC 8.4(a)(4) amounts

to a strict liability rule. That is, to say, consistent with the

approach we have taken in Claussen and other cases, that the

focus of the rule is on the effect of conduct, not the accused’s

state of mind when the conduct is undertaken, does not

necessarily compel the conclusion that the rule authorizes

58 In re Carini

discipline for faultless conduct. In other words, this court

was not required in Claussen or any subsequent case to

decide whether an accused must have a culpable mental

state with respect to engaging in the charged conduct itself,

apart from the effect of such conduct on the administration

of justice.

It is not necessary to resolve that issue in this case,

because (1) the accused does not assert that any particular

culpable mental state other than intent is necessary to

establish a violation of the rule; and (2) from the facts in

the record before us, we find that the accused at least acted

negligently—and did so repeatedly—in failing to appear

for the docket calls and status conference.6 In the Gales

and Lockwood matters, the accused admitted that he had

forgotten to contact the court, and he also admitted that he

had forgotten to provide the court with a number at which

to contact him. In addition, the accused knew that his

office’s phone system was not functioning properly, thereby

depriving the court of an effective means of contacting him

by phone and contributing to his failure to appear in the

Burton case. Finally, the accused negligently failed to make

arrangements to avoid the scheduling conflict between two

court appearances that led to his failure to timely appear

in the Westfall case. Because clear and convincing evidence

in the record establishes that the accused repeatedly—and

at least negligently—failed to appear, we need not decide

whether the absence of an express mental state requirement

in the text of RPC 8.4(a)(4) has the effect of imposing “strict

liability” for conduct that violates that rule. The Bar proved

by clear and convincing evidence that the accused engaged

6

We note that, in construing similarly worded rules of professional conduct,

courts in other jurisdictions have held that a violation may occur when an attorney

negligently engages in conduct that is prejudicial to the administration of justice.

See, e.g., In re Clark, 207 Ariz 414, 418, 87 P3d 827, 831 (2004) (concluding that

accused lawyer’s negligent conduct constituted conduct prejudicial to the admin-

istration of justice); Fink v. Neal¸ 328 Ark 646, 655, 945 SW2d 916, 921 (1997)

(concluding that accused lawyer was subject to discipline for negligently engaging

in conduct prejudicial to the administration of justice); People v. Mills, 861 P2d 708,

711 (Colo 1993) (finding conduct prejudicial to the administration of justice when

accused lawyer, whether intentionally or negligently, improperly asserted a lien on

his client’s estate proceeds); Florida Bar v. McClure, 575 So 2d 176, 178 (Fla 1991)

(finding conduct prejudicial to the administration of justice when accused lawyer,

whether intentionally or negligently, mismanaged funds to the detriment of estate

beneficiaries).

Cite as 354 Or 47 (2013) 59

in conduct that is prejudicial to the administration of justice.

See RPC 8.4(a)(4).

IV. SANCTION

Having determined that the accused violated RPC

8.4(a)(4), we turn to the appropriate sanction. We first con-

sider the duty violated, the accused’s state of mind, and the

actual or potential injury caused by the accused’s conduct.

Kluge, 332 Or at 259; ABA Standard 3.0. We next determine

whether any aggravating or mitigating circumstances exist.

Id. Finally, we consider the appropriate sanction in light

of this court’s case law. Id. In determining the appropriate

sanction, our purpose is to protect the public and the courts

from lawyers who have not discharged properly their duties

to clients, the public, the legal system, or the profession. See

ABA Standard 1.1.

An exhaustive review of this court’s case law is not

necessary to the disposition of this case and would not benefit

the bench, bar, or public. Here, the accused violated his

duty to abide by the legal rules of procedure that affect the

administration of justice. ABA Standard 6.0. The accused’s

conduct also caused actual harm to the procedural func-

tioning of the Josephine County Circuit Court and poten-

tial harm to the accused’s clients. In light of those deter-

minations, under the applicable ABA Standards the pre-

sumptive sanction for the accused is a reprimand. See ABA

Standard 6.23.

The trial panel found as aggravating factors that

the accused had a prior history of discipline, had substantial

experience in the practice of law, and had not demonstrated

remorse for his conduct, see ABA Standard 9.22(c), (g), (i).

We agree. It bears particular emphasis that the accused

has a prior disciplinary history involving the same rule;

specifically, he has previously violated RPC 8.4(a)(4) by fail-

ing to appear for a scheduled trial. ABA Standard 9.22(a).

The misconduct at issue in this proceeding occurred after

the misconduct at issue in Carini I, and some of it occurred

while the accused was on probation for the prior violations.

In Carini I, the trial panel made the following statement in

its written opinion:

60 In re Carini

“[T]he trial panel admonishes the accused to regard the pro-

bation as a final opportunity, and specifically advises any

future [trial] panel evaluating the conduct of the accused

that it should regard the rules violations found in this case

to be serious.”

The accused’s prior disciplinary record weighs in favor of

imposing a greater-than-presumptive sanction. In re Cohen,

330 Or 489, 506, 8 P3d 952 (2000); see also In re Jones, 326

Or 195, 200, 951 P2d 149 (1997) (imposition of sanction for

similar prior conduct before accused lawyer engaged in con-

duct at issue is significant aggravating factor).

With regard to mitigating factors, we find that the

accused did not have a dishonest motive in failing to appear

and in failing to ensure that the court could reach him by

telephone, and that the accused cooperated with the disci-

plinary proceedings. ABA Standard 9.32(b), (e).

In light of the totality of circumstances, and with

particular emphasis on the fact that the accused has pre-

viously been disciplined for violating the same rule at issue

in these proceedings, we conclude that a 30-day suspension

is appropriate. Cf. In re Chase, 339 Or 452, 461, 121 P3d 1160

(2005) (30-day suspension appropriate for repeated conduct

violating a single disciplinary rule where both aggravating

and mitigating factors are found).

The accused is suspended from the practice of law

for 30 days, commencing 60 days from the date of filing of

this decision.