In re Ramirez

370 January 19, 2018 No. 4

IN THE SUPREME COURT OF THE

STATE OF OREGON

In re Complaint as to the Conduct of

SAMUEL A. RAMIREZ,

OSB Bar No. 910883,

Accused.

(OSB 14116; SC S064697)

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

Board.

Argued and submitted on the record on November 13, 2017.

Samuel A. Ramirez filed the brief on his own behalf.

Susan Roedl Cournoyer, Assistant Disciplinary Counsel,

Tigard, argued the cause and filed the brief on behalf of the

Oregon State Bar.

Before Balmer, Chief Justice, and Kistler, Walters,

Nakamoto, and Flynn, and Duncan, Justices.*

PER CURIAM

The accused is suspended from the practice of law for a

period of one year, commencing 60 days from the date of this

decision.

Case Summary: The Oregon State Bar brought a disciplinary action against

the accused lawyer, alleging several violations of the Rules of Professional

Conduct. A trial panel of the Disciplinary Board found that the accused had

committed four of the charged violations and concluded that the accused should

be suspended from the practice of law for one year. The accused lawyer sought

review in the Supreme Court, arguing that the trial panel erred in rejecting his

argument that the disciplinary proceeding was barred by the statute of limita-

tions set out in ORS 12.110, and in assessing the aggravating and mitigating fac-

tors and imposing the one-year suspension. Held: Reviewing de novo, the Court

concluded that the disciplinary proceeding was not barred by the statute of lim-

itations, the accused violated the disciplinary rules as the trial panel found, and

the one-year suspension was appropriate.

The accused is suspended from the practice of law for a period of one year,

commencing 60 days from the date of this decision.

______________

*  Landau, J., retired December 31, 2017, and did not participate in the deci-

sion of this case. Nelson, J., did not participate in the consideration or decision of

this case.

Cite as 362 Or 370 (2018) 371

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon

State Bar (the Bar) charged Samuel A. Ramirez (the accused)

with violating several Oregon Rules of Professional Conduct

(RPC). A trial panel concluded that the accused had failed

to provide competent representation, neglected a legal mat-

ter, represented a client when the representation involved a

personal conflict of interest, and improperly settled a poten-

tial malpractice claim with an unrepresented party, in vio-

lation of RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.7

(a)(2) and RPC 1.7(b) (current client conflict of interest), and

RPC 1.8(h) (current client conflict of interest, special rule),

respectively. Based on those violations and an assessment

of aggravating and mitigating factors, the trial panel sus-

pended the accused from the practice of law for one year.

The accused petitioned this court for review of the trial pan-

el’s decision. On review, the accused concedes that he com-

mitted the violations found by the trial panel, but asserts

that the trial panel erred in (1) rejecting his argument

that the disciplinary proceeding was barred by the statute

of limitations set out in ORS 12.110, and (2) assessing the

aggravating and mitigating factors and imposing the one-

year suspension. Reviewing de novo, we conclude that the

disciplinary proceeding was not barred by the statute of

limitations, the accused violated the disciplinary rules as

the trial panel found, and the appropriate sanction is a one-

year suspension.

I.  HISTORICAL AND PROCEDURAL FACTS

Although the accused concedes that he violated

the Rules of Professional Conduct as the trial panel found,

he disputes the sanction. Because the appropriate sanc-

tion depends on the nature of the violations, as well as the

accused’s conduct during the disciplinary proceedings, we

begin with a statement of the historical and procedural

facts. We take the facts primarily from the trial panel’s find-

ings, which the accused does not dispute.

The accused was admitted to the Oregon State Bar

in 1991. His primary practice areas have been criminal

defense and family law. This disciplinary proceeding was

based on the accused’s representation of a client, Carson

372 In re Ramirez

Culp. The accused obtained a money judgment for Culp, but

then, over a period of years, failed to take the actions nec-

essary to collect the unsatisfied judgment, and, when Culp

complained about the accused’s representation, the accused

entered into an agreement with Culp to settle Culp’s poten-

tial malpractice claims, without advising Culp of the desir-

ability of seeking independent counsel.

A.  The Culp v. Dunn and Dunn Litigation

In 2006, the accused filed a civil action on behalf of

Culp against Christine Dunn (Christine) and her mother,

Elizabeth Dunn (Elizabeth), claiming that Culp had an

interest in real property owned by the Dunns in Klamath

County (the “Split Rail property”). The claim was based on

improvements to the property for which Culp had paid.

In April 2008, the accused obtained a general judg-

ment in favor of Culp against Christine, which included a

money award of $97,552.92 and created a judgment lien.

Pursuant to ORS 18.150(2)(a), the lien attached to all real

property the Dunns owned in Klamath County, including

the Split Rail property and a second property, the “Ranger

Court property.” Culp instructed the accused to collect the

money award as soon as possible.

Christine appealed the judgment, and the accused

represented Culp in an appellate settlement conference in

August 2008. At the conference, Culp agreed to a settle-

ment, the terms of which required Christine and Elizabeth

to sign a promissory note to Culp for $80,000, payable on

September 1, 2009, and to secure the note with a trust deed

on the Ranger Court property.

Notably, the Ranger Court property was already

encumbered. In 2006, while Culp’s action concerning the Split

Rail property was pending, the Dunns borrowed $65,000

from Washington Mutual Bank and secured the loan with

a trust deed on the Ranger Court property. Christine exe-

cuted the promissory note for the loan on behalf of herself

and Elizabeth, using a power of attorney.

B.  Collection Attempts

In April 2009, eight months after the appellate settle-

ment conference, Christine’s lawyer, David Brown (Brown),

Cite as 362 Or 370 (2018) 373

sent the accused a proposed form of mutual release and set-

tlement agreement, a proposed note, and a proposed trust

deed on the Ranger Court property for the accused and Culp

to review. The accused did not respond to Brown or forward

the documents to Culp. When Culp inquired about the doc-

uments, the accused told him that Brown had not provided

them yet.

Christine did not pay the $80,000 due on September 1,

2009. Prompted by Culp, the accused wrote to Brown, ask-

ing why Christine had not executed the trust deed on the

Ranger Court property. Brown replied that he was waiting

for the accused to have Culp complete and return the settle-

ment documents.

Thereafter, the accused returned the settlement

documents to Brown, and Christine signed the promissory

note and executed the trust deed on the Ranger Court prop-

erty. Elizabeth did not sign the trust deed, and Christine

did not sign it on Elizabeth’s behalf. The accused recorded

the trust deed in June 2010.

The accused did not inform Culp of the problems

with a foreclosure that could arise because of Washington

Mutual’s superior interest in the Ranger Court property or

because of Christine’s failure to obtain Elizabeth’s signature

on the trust deed. Nor did he explore any other options for

collecting Culp’s money award.

In August 2010, the accused initiated a nonjudicial

foreclosure on Culp’s trust deed on the Ranger Court prop-

erty; he recorded a notice of default and scheduled a sale for

January 2011. Although the accused had never successfully

completed a nonjudicial foreclosure, he did not review any

Continuing Legal Education (CLE) materials or take any

other steps to familiarize himself with the requirements

for a foreclosure. He did not review the title history of the

Ranger Court property or calculate the amount owed on the

property. The accused failed to take the steps required by

statute to complete the foreclosure; among other things, he

failed to publish notice of the sale. When Culp contacted the

accused to learn the outcome of the sale, the accused told

him that he had forgotten to file required paperwork and the

sale had not occurred. Although Culp had already paid the

374 In re Ramirez

accused $1,500 to conduct the sale, the accused offered to

conduct another sale for an additional $1,600. Culp agreed

and paid the accused.

The accused initiated the second nonjudicial fore-

closure in January 2011 and scheduled a sale for May 2011.

He believed he had taken the steps required by statute, but

when no one appeared for the sale, he realized that, once

again, he had failed to publish notice of the sale.

Although the accused’s attempts to foreclose on the

Ranger Court property were unsuccessful, he wrote a letter

to Christine in June 2011 asserting that Culp owned the

property and requiring that Christine surrender the prop-

erty and that she and Elizabeth sign quitclaim deeds to

Culp. At the disciplinary trial, one of the Bar’s witnesses

testified that the accused’s demands of the Dunns exposed

Culp to potential civil liability for making improper threats

in connection with a foreclosure.

C.  Settlement between the Accused and Culp; Continued

Representation

In November 2011, Culp complained to the accused

about his failure to collect on the $80,000 promissory note,

demanded a refund, and asserted that he had a legal mal-

practice claim against the accused. After reviewing a CLE

publication on torts to evaluate whether Culp had a claim

against him, the accused prepared a “Termination and

Settlement Agreement” and attached an “Acknowledgement

of Payment,” which he presented to Culp. The agreement

states that the accused earned the $3,100 Culp had paid

him, but that the accused agreed to pay Culp $3,100 “to

settle any and all disputes arising from his representa-

tion.” The accused did not explain what Culp’s potential

malpractice claims might be or that Culp might be entitled

to more than a $3,100 refund, and he did not advise Culp

of the desirability of seeking independent legal counsel to

review the settlement agreement. Culp did not sign the

“Termination and Settlement Agreement,” but he did sign

the attached “Acknowledgement of Payment,” which states

that he received $3,100 as “payment in full pursuant to the

settlement agreement.”

Cite as 362 Or 370 (2018) 375

After Culp signed the Acknowledgement of Payment,

the accused continued to represent Culp in the collection

matter, on a contingent fee basis. In January 2012, the

accused made a third attempt to foreclose on the Ranger

Court property, with a sale scheduled approximately five

months later. Before the sale, the accused received notice

that Washington Mutual was foreclosing on its trust deed on

the Ranger Court property because the Dunns had defaulted

on their loan. The accused gave the notice to Culp, but took

no actions to protect Culp’s interest; he told Culp that Culp

would not receive anything and his interest in the property

would be extinguished.

Before Washington Mutual’s foreclosure sale of the

Ranger Court property occurred, Christine filed a Chapter 7

bankruptcy petition and exercised her homestead exemp-

tion on the Split Rail property. The accused received notice

of the petition, and he informed Culp that he did not practice

bankruptcy law and that Culp would need to retain another

lawyer to represent him in the bankruptcy. Culp did not

consult another lawyer.

In November 2012, Christine received a “no asset”

discharge, which extinguished the $80,000 promissory note.

At the disciplinary trial, a witness for the Bar testified that,

although the promissory note was extinguished, Culp’s

judgment lien against Ranger Court remained for two more

years, until Washington Mutual completed its nonjudicial

foreclosure and sale in 2014.

D.  Disciplinary Proceedings

In April 2013, Culp complained to the Bar about

the accused’s representation. After an investigation, the Bar

filed a formal complaint in January 2015. The case was tried

in October 2016.

During the trial, the accused offered into evidence

a letter he wrote to Culp in November 2015, attempting to

settle the disciplinary proceeding. The letter states, “As

you know, the bar is looking into my representation of you

regarding the Split Rail property and the Ranger Court

foreclosure. I would like to attempt to resolve this matter.

Please give me a call.” After sending the letter, the accused

376 In re Ramirez

called Culp and offered him $1,000, and later $1,500, in the

hope that Culp would withdraw his complaint and the Bar

would dismiss the disciplinary proceeding.

In a decision issued in December 2016, the trial

panel found that the accused failed to provide competent

representation, neglected a legal matter, represented a cli-

ent when that representation involved a personal conflict

of interest, and improperly settled a potential malpractice

claim with an unrepresented party, in violation of RPC 1.1

(competence), RPC 1.3 (diligence), RPC 1.7(a)(2) and RPC

1.7(b) (current client conflict of interest), and RPC 1.8(h)

(current client conflict of interest, special rule), respectively.

Specifically, the trial panel found that the accused violated

• RPC 1.1, “by representing Culp in a collection mat-

ter without the legal knowledge, skill, thoroughness

and preparation reasonably necessary for the repre-

sentation,” including by making “the same mistake

three times in attempting to foreclose on the prop-

erty at issue[;]”

• RPC 1.3, by engaging in “a course of neglectful con-

duct” and demonstrating an “on-going pattern of

ignorance as to the most basic laws relating to col-

lection of a debt[;]”

• RPC 1.7(a)(2) and RCP 1.17(b), by failing to advise

Culp that he had a potential malpractice claim

and continuing to represent Culp, without written

informed consent, after the potential claim arose;

and

• RCP 1.8(h), by entering into the settlement agree-

ment with Culp without advising Culp to seek inde-

pendent counsel.1

The trial panel found seven aggravating factors:

(1) a prior history of discipline, specifically, a 1998 reprimand

1

The Bar had also alleged that the accused had failed to communicate with

a client, improperly entered into a business transaction with a client, terminated

representation without protecting a client’s interest, and engaged in conduct

involving dishonesty or misrepresentation, in violation of RPC 1.4(b), RPC 1.8

(a)(1) to (3), RPC 1.16(d), and RPC 8.4(a)(3), respectively. The trial panel found

that the Bar failed to prove those violations by clear and convincing evidence.

Cite as 362 Or 370 (2018) 377

for failing to properly handle and account for client funds

and a 2009 admonishment for neglect of a legal matter;

(2) a dishonest or selfish motive; (3) a pattern of miscon-

duct, including repeated failures to correct flawed practices;

(4) multiple offenses, in that the accused violated multiple

rules and engaged in multiple instances of misconduct; (5) a

refusal to acknowledge the wrongfulness of the charged mis-

conduct, as evidenced by his “attempt to persuade Culp to

accept money in exchange for withdrawing the Disciplinary

Complaint”; (6) a vulnerable victim, because the accused

knew that Culp “was not legally sophisticated, had limited

resources, was impaired by alcoholism * * *, and desperately

wanted [the accused] to complete collection as soon as possi-

ble[,]” and (7) substantial experience in the practice of law.

As a mitigating factor the trial panel found that, “to his

credit, the [a]ccused admitted his incompetence with regard

to the foreclosure claim * * * [and] agreed that this incompe-

tence warrants a suspension from practice.”

Given the accused’s violations and the balance of

the aggravating and mitigating factors, the trial panel con-

cluded that a one-year suspension was warranted. After the

trial panel issued its order, the accused petitioned this court

for review.

II.  PARTIES’ ARGUMENTS ON REVIEW

As mentioned, the accused concedes the rule vio-

lations that the trial panel found, but challenges the trial

panel’s decision on two grounds; he asserts that (1) the disci-

plinary proceeding was barred by the statute of limitations

set out at ORS 12.110, and (2) that the trial panel erred in

its assessment of aggravating and mitigating factors and its

imposition of the one-year suspension. In response, the Bar

asserts that lawyer disciplinary proceedings are not sub-

ject to any statute of limitations, and it asks this court to

adopt the trial panel’s findings of fact and conclusions of law

regarding the violations and to suspend the accused for not

less than one year.

III. ANALYSIS

We review the trial panel’s decision de novo. See

ORS 9.536(2) (so stating); Bar Rule of Procedure (BR) 10.6

378 In re Ramirez

(same). We begin our analysis by addressing the accused’s

argument that the disciplinary proceeding is barred by the

statute of limitations set out at ORS 12.110.

A.  Statute of Limitations

The accused asserts that a lawyer may raise a stat-

ute of limitations defense in a lawyer disciplinary proceed-

ing. This court has held to the contrary, specifically stating,

“The statute of limitations and latches are not defenses”

in lawyer disciplinary proceedings. In re Ruben G. Lenske,

269 Or 146, 164, 523 P2d 1262 (1974), cert den, 420 US 908

(1975).

Despite Lenske, the accused argues that lawyer

disciplinary proceedings are subject to the statute of lim-

itations set out in ORS 12.110(1). In support of his argu-

ment, the accused relies on ORS 9.010, which provides, in

part, that the Bar is a public corporation and is subject to

certain statutes applicable to public bodies, including the

Oregon Rules of Civil Procedure. ORS 9.010(2), (3)(d). In

addition, the accused points out that ORCP 21 A provides

that a statute of limitations defense may be raised through

a motion to dismiss. The accused reasons that, because

the Bar is subject to the Oregon Rules of Civil Procedure

and ORCP 21 A provides a procedure for raising a statute

of limitations defense, a lawyer may raise such a defense

in a Bar disciplinary proceeding. According to the accused,

the applicable statute of limitations is ORS 12.110(1), which

provides that “an action for assault, battery, false impris-

onment, or for any injury to the person or rights of another,

not arising on contract, and not especially enumerated in

this chapter, shall be commenced within two years[.]” The

accused contends that, in this case, the two-year limitations

period began to run in August 2012, when he notified Culp

that nothing further could be done to collect the judgment,

and, consequently, the Bar’s complaint, which was filed in

January 2015, was time-barred.

In response, the Bar acknowledges that ORS 9.010

(3)(d) provides that it is subject to the Oregon Rules of Civil

Procedure, and that, in a civil action, those rules and any

applicable statute of limitations would apply. But, the Bar

contends, lawyer disciplinary proceedings are not civil

Cite as 362 Or 370 (2018) 379

actions; rather, they are “ ‘sui generis and within the inher-

ent power of the Supreme Court to control.’ ” (Quoting ORS

9.529.) They are governed by the Bar Rules of Procedure,

which are adopted by the Bar’s Board of Governors and

approved by this court. ORS 9.005(7); ORS 9.542(1) (“The

board of governors, subject to the approval of the Supreme

Court, may adopt rules of procedure * * * relating to the

conduct of * * * disciplinary proceedings.”). According to the

Bar, because the Bar Rules of Procedure do not provide a

time limitation for the initiation of disciplinary proceedings,

the disciplinary proceeding against the accused was not

time-barred.

We agree with the Bar. As mentioned, we have pre-

viously held that there is no statute of limitations defense

in lawyer disciplinary proceedings. Lenske, 269 Or at 164;

see also State v. Mannix, 133 Or 329, 336, 288 P 507, reh’g

den, 133 Or 399, 290 P 745 (1930) (holding that the stat-

ute of limitations governing criminal prosecutions is not a

defense to a proceeding for suspension or disbarment of a

lawyer). The accused’s argument to the contrary is unavail-

ing. As the Bar argues, disciplinary proceedings are gov-

erned by the Bar Rules of Procedure, not the Oregon Rules

of Civil Procedure. ORS 9.529; ORS 9.542(1). Furthermore,

even if the Oregon Rules of Civil Procedure applied, ORS

12.110, which establishes the two-year limitations period

upon which the accused relies, does not apply to disciplinary

proceedings because they are not actions for injuries “to the

person or rights of another”; they are proceedings to enforce

professional rules. ORS 9.529 (disciplinary proceedings

are “neither civil nor criminal in nature[;]. [t]hey are sui

generis”); BR 1.3 (disciplinary proceedings “are designed as

the means to determine whether an attorney should be dis-

ciplined for misconduct”).

B.  Violations

Because we conclude that the disciplinary proceed-

ing against the accused was not time barred, we turn to

the alleged rule violations, which the Bar bears the bur-

den of proving by “clear and convincing evidence,” that is,

“evidence establishing that the truth of the facts asserted

is highly probable.” In re Hostetter, 348 Or 574, 576, 238

380 In re Ramirez

P3d 13 (2010) (internal quotation marks omitted); BR 5.2.

As mentioned, the accused concedes that he violated the

Rules of Professional Conduct as found by the trial panel.

On de novo review, we accept the accused’s concession and

adopt the trial panel’s findings and conclusions regarding

the violations.

C.  Sanction

Having concluded that the accused violated multiple

rules of professional conduct, we turn to the question of the

appropriate sanction. As mentioned, the trial panel imposed

a one-year suspension. On review, the accused disputes cer-

tain findings by the trial panel; specifically, he disputes the

panel’s finding that his foreclosure attempts failed because

he “made the identical mistake three times,” and its finding

that his November 2015 letter to Culp to resolve the disci-

plinary proceeding “demonstrates that the [a]ccused does

not accept or appreciate that his conduct toward Culp was

dishonest and self-serving.” In addition, the accused asserts

that the trial panel erred in failing to treat the delay in the

disciplinary proceeding as a mitigating factor. According to

the accused, a proper sanction would be either probation or

a suspension for between 30 and 90 days.

1.  Analytical framework

To determine the appropriate sanction for violations

of disciplinary rules, “we begin with the analytical frame-

work set out in the American Bar Association’s Standards

for Imposing Lawyer Sanctions (1991) (amended 1992)

(ABA Standards)”. In re Jaffee, 331 Or 398, 408, 15 P3d

533 (2000); see Hostetter, 348 Or at 594, (following Jaffee).

“Under that framework, we arrive at an initial presump-

tive sanction based on: (1) the ethical duty violated, (2) the

lawyer’s mental state, and (3) the actual or potential injury

caused.” Jaffee, 331 Or at 408; ABA Standard 3.0. We then

determine whether any aggravating or mitigating factors

justify either an increase or decrease in the sanction. ABA

Standard 9.1; Jaffee, 331 Or at 408-09; In re Kluge, 335 Or

326, 348, 66 P3d 492 (2003). Finally, we determine whether

the sanction is consistent with our case law. Jaffee, 331 Or

at 409. “In determining the appropriate sanction, our pur-

pose is to protect the public and the administration of justice

Cite as 362 Or 370 (2018) 381

from lawyers who have not discharged properly their duties

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

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

Standard 1.1.

2.  Duties violated, mental state, and injury

Regarding the duties violated, we conclude that

the accused violated his duties to his client. Specifically, he

violated his duties to represent Culp with competence and

diligence and to avoid conflicts of interest. Those duties are

among the most basic and important duties a lawyer owes

a client. See In re Knappenberger, 338 Or 341, 356, 108 P3d

1161 (2005) (“A lawyer’s most important ethical duties are

those owed to clients, including the duty to avoid conflicts of

interest.”) (Knappenberger I); ABA Standards 4.3, 4.4, 4.5.

We next consider the accused’s mental state when

he committed the violations. A lawyer acts “knowingly”

when the lawyer acts with “the conscious awareness of

the nature or attendant circumstances of [the lawyer’s]

conduct but without the conscious objective or purpose to

accomplish a particular result.” ABA Standards at 7. A

lawyer acts “intentionally” when the lawyer acts with “the

conscious objective or purpose to accomplish a particular

result.” Id. We find that the accused knowingly violated

RPC 1.1, governing competence, when he represented Culp

in the collection matter, with the conscious awareness that

he lacked the competence to do so. We also find that the

accused knowingly violated RPC 1.3, governing diligence,

when he neglected the collection matter over several years,

despite Culp’s requests and inquiries. We further find that

the accused knowingly violated RPC 1.7(a), governing cur-

rent conflicts of interests, when he continued to represent

Culp in the collection matter after Culp had a potential mal-

practice claim against him, without first informing Culp of

his potential claim and obtaining Culp’s consent, in writ-

ing, as required by RPC 1.7(b)(4). Finally, we find that the

accused acted intentionally when he violated RPC 1.8(h),

by acting to limit his liability for malpractice through the

Culp release, without advising Culp of the desirability of

independent counsel and affording him the opportunity to

obtain such counsel; the accused acted with the conscious

382 In re Ramirez

goal of securing a release that protected his own interests

over Culp’s. Thus, all of the accused’s violations were either

knowing or intentional.

As to the injury attributable to the accused’s vio-

lations, we conclude that the accused caused Culp actual

injury. ABA Standards at 7.2 Although Culp retained the

accused to collect his $97,000 judgment against Christine

and paid the accused $3,100 to do so, the accused’s incom-

petent and neglectful representation resulted in the loss of

Culp’s ability to collect any of the money Christine owed him.

In addition, the accused injured Culp by inducing him to

sign a release that the accused intended would cover Culp’s

potential malpractice claims against the accused.

3.  Presumptive sanction

Having identified the duties violated, the accused’s

mental state, and the injuries caused, we next determine

the presumptive sanction under the ABA Standards. Jaffee,

331 Or at 408; ABA Standard 3.0. Under the ABA stan-

dards, the presumptive sanction for the accused’s knowing

violations of his duties of competence, diligence, and loyalty

is suspension. ABA Standard 4.52 (suspension generally

appropriate when lawyer engages in the practice of law in

an area in which he knows he is not competent and causes

injury or potential injury); ABA Standard 4.42 (suspension

generally appropriate when lawyer knowingly fails to per-

form services for a client, or engages in a pattern of neglect,

thereby causing injury or potential injury to the client);

ABA Standard 4.32 (suspension generally appropriate when

lawyer knows of, but does not disclose, a conflict of interest

and causes injury or potential injury to the client).

4.  Aggravating and mitigating factors

To determine whether a sanction other than sus-

pension is appropriate, we consider any aggravating or mit-

igating factors. Jaffee, 331 Or at 408-09. As aggravating

factors, the trial panel found, inter alia, that the accused

has a prior history of discipline, acted with a dishonest or

2

“Injury” is “harm to a client, the public, the legal system or the profession

which results from a lawyer’s misconduct.” Injury may be actual or potential.

ABA Standard 3.0.

Cite as 362 Or 370 (2018) 383

selfish motive, committed multiple offenses, took advantage

of a vulnerable person, and had substantial experience in

the practice of law. ABA Standard 9.22(a), (b), (d), (h), (i).

The accused does not dispute those factors, and we adopt the

trial panel’s findings and conclusions regarding them.

The accused appears to dispute, in part, the trial

panel’s finding that he engaged in “a pattern of misconduct.”

ABA Standard 9.22(c). The trial panel found that,

“[o]ver the course of more than five years (2008-2013), the

Accused did virtually nothing to advance his client’s only

objective—collection of the debt owed to him. Instead, the

Accused repeated flawed and inadequate processes and

procedures, without attempting to correct his practices or

learn from his failed efforts.”

Later in its opinion, the trial panel stated that the accused

admitted that he “made the identical mistake three times in

attempting to foreclose on the [Ranger Court] property[.]”

On review, the accused asserts that the attempts failed

for different reasons; specifically, he asserts that the first

attempt failed because he did not properly provide notice to

the parties, the second attempt failed because he did not pro-

vide the required public notice, and the third attempt failed

because Washington Mutual initiated its own foreclosure.

We find that, regardless of whether the accused

repeated the identical mistake in his foreclosure attempts, he

repeatedly failed to learn and comply with the basic require-

ments for foreclosure. Based on the accused’s repeated

neglect and incompetence in the collection matter, combined

with his violation of the Rules of Professional Conduct gov-

erning conflicts of interest and his prior admonishment for

neglect of a legal matter in another case, we conclude that

the accused engaged in a pattern of misconduct. See In re

Redden, 342, Or 393, 397, 153 P3d 113 (2007) (observing

that this court has found a pattern of misconduct in cases

where the accused engaged in similar misconduct in the

past or violated multiple disciplinary rules).

The accused also disputes the trial panel’s finding

that he refused to acknowledge the wrongful nature of his

conduct. ABA Standard 9.22(d). In support of that finding,

the trial court relied on the accused’s contacts with Culp

384 In re Ramirez

during the disciplinary proceeding. As described above, in

November 2015, after the Bar issued its formal complaint

against the accused, the accused sent Culp a letter, which

states, “As you know, the bar is looking into my represen-

tation of you regarding the Split Rail property and the

Ranger Court foreclosure. I would like to attempt to resolve

this matter. Please give me a call.” Thereafter, the accused

offered Culp $1,000, and later $1,500, in the hope that Culp

would withdraw his Bar complaint. During the disciplinary

trial, the accused introduced a copy of the November 2015

letter, as an exhibit in his own defense. He also testified that

his offer to pay Culp was an attempt to respond to Culp’s

concerns, in the hope that Culp would withdraw his com-

plaint or that the Bar would view his offer to pay Culp as an

attempt at restitution and treat it as a mitigating factor.

The trial panel found that the accused’s contacts

with Culp during the disciplinary hearing established that

the accused did not appreciate the wrongful nature of his

conduct. On review, the accused disputes that finding. He

points out that, as the trial panel found, he “admitted his

incompetence with regard to the foreclosure claim.” He also

renews his contention that his offer to pay Culp during the

disciplinary hearing was an attempt at restitution. The Bar

takes a different view of the accused’s offer to pay Culp, con-

tending that the accused was attempting to secretly manip-

ulate Culp and undermine the disciplinary proceeding.

On review, we conclude that the evidence is insuffi-

cient to establish that the accused has refused to acknowl-

edge the wrongfulness of his conduct. Throughout the pro-

ceedings, the accused has admitted that his foreclosure

efforts were incompetent, and, on review, he has expressly

conceded that he violated the Rules of Professional Conduct,

as the trial panel found. His contacts with Culp during the

disciplinary proceeding do not reflect a refusal to acknowl-

edge the nature of his past misconduct. Moreover, we cannot

conclude that those contacts, which the accused believed were

mitigating, were not intended to be attempts at restitution.

Finally, the accused asserts that the delay in the dis-

ciplinary proceedings is a mitigating factor. As mentioned,

Cite as 362 Or 370 (2018) 385

Culp contacted the bar about the accused in November 2013,

and the Bar filed its formal complaint in January 2015. The

trial was held in October 2016, and the trial panel issued its

decision in December 2016. The Bar asserts that, given the

investigation, discovery, motions, and pretrial proceedings,

the delay, while lengthy, was not unreasonable. A lengthy

period of time between misconduct and a disciplinary deci-

sion can be a mitigating factor, if there has not been further

misconduct by the accused. See, e.g., In re Cohen, 330 Or

489, 504, 8 P3d 953 (2000) (so stating and finding that four-

year delay was a mitigating factor, where the parties agreed

that no complaints had been filed against the accused since

the time of the charged misconduct). The accused asserts

that there have been no new complaints against him, but

the Bar responds that the accused’s efforts in 2015 to pay

Culp to resolve the disciplinary proceeding constitute mis-

conduct, and therefore the delay should not be treated as a

mitigating factor. Even assuming that delay is a mitigating

factor in this case, the mitigating factors are substantially

outweighed by the aggravating factors.

5.  Duration of sanction

To determine the appropriate length of the sus-

pension, we turn to our case law for guidance. In re Obert,

352 Or 231, 262, 282 P3d 825 (2012); Hostetter, 348 Or at

603 (although case matching in lawyer discipline cases is

an “inexact science,” the court’s case law can “provide some

guidance” (internal quotation marks omitted)). Given the

facts of this case, we look to other cases that also involved

multiple violations and numerous aggravating factors. We

find two cases, In re Knappenberger, 340 Or 573, 135 P3d 297

(2006) (Knappenberger II), and In re Altstatt, 321 Or 324,

897 P2d 1164 (1995), cert dismissed, 517 US 1129 (1996),

particularly instructive.

In Knappenberger II, this court imposed a one-year

suspension on a lawyer who neglected a legal matter for sev-

eral years. Knappenberger represented a client in a mar-

ital dissolution proceeding, and the dissolution judgment

provided that his client was to receive one-half of her for-

mer husband’s pension, through a qualified domestic rela-

tions order (QDRO). Despite repeated inquiries from his

386 In re Ramirez

client, opposing counsel, and the pension administrators,

Knappenberger did not finalize the QDRO until eight years

after entry of the dissolution judgment. This court held

that Knappenberger violated the then-current rule govern-

ing neglect and that, although he ultimately finalized the

QDRO, he had caused actual harm to his client, “in the form

of anger, fear, and frustration arising out of [his] failure to

act[,]” and that he caused her potential injury because his

neglect put her “eligibility for benefits * * * at risk,” until

the QDRO was finalized. 340 Or at 583-84. As aggravating

factors, we found that Knappenberger had been previously

disciplined and had substantial experience in the practice

of law. Id. at 584-85. As mitigating factors, .we found that

he had not acted with a dishonest or selfish motive and had

fully cooperated with the disciplinary proceeding. Id. at 586.

Considering the violations and the aggravating and mitigat-

ing factors, we concluded that a one-year suspension was

appropriate. Id. at 588.

In Altstatt, the lawyer borrowed money from a client

for several years. After the client’s death, the lawyer repre-

sented the personal representatives of that client’s estate,

but did not disclose his conflict of interest and convinced

the personal representatives to delay collection of his debt

until the estate closed. This court found that Altstatt’s con-

duct violated the then-current disciplinary rule govern-

ing personal conflicts of interest. Based on other conduct,

this court found that Altstatt also accepted payment of a

fee without prior court approval. As aggravating factors,

this court found that Altstatt acted with a selfish motive,

was indifferent to making restitution, engaged in deceptive

practices in the disciplinary proceeding, and had substan-

tial experience in the practice of law. As a mitigating factor,

this court found that he had no prior disciplinary violations.

Considering Altstatt’s conduct and the aggravating and mit-

igating factors, this court concluded that a one-year suspen-

sion was appropriate. 321 Or at 339. See also In re Schenck,

345 Or 350, 372, 194 P3d 804 (2008), modified on recons,

345 Or 652, 202 P3d 165 (2009) (imposing a one-year sus-

pension on lawyer who, among other violations, renegotiated

his personal debt to the client, without advising the client to

seek independent counsel).

Cite as 362 Or 370 (2018) 387

Like Knappenberger II, this case involves years of

neglect of a legal matter by a lawyer with substantial experi-

ence and a history of discipline. This case also involves, like

Altstatt, a personal conflict of interest and a selfish motive.

The accused asserts that a sanction of between 30

and 90 days is appropriate, relying on In re Spencer, 355 Or

679, 330 P3d 538 (2014), and In re Jagger, 357 Or 295, 348

P3d 1136 (2015). In Spencer, this court held that a 30-day

sanction was appropriate, where, during the course of a law-

yer’s legal representation of a client, the lawyer also served

as the client’s real estate broker, and, thereby, entered into

a business transaction with a client, but did not obtain the

client’s informed consent in writing, as required by RPC

1.8(a). 355 Or at 689. In so holding, we explained that the

case involved “a single violation” and, “unlike most cases”

involving violations of the business transaction rule, “the

accused’s misconduct did not involve nondisclosure or lack

of consent regarding a financial transaction in which the

accused’s role was directly adverse to or intertwined with

the client’s[.]” Id. at 701-02. In Jagger, the lawyer facili-

tated telephone contact between his client and his client’s

girlfriend, who had a restraining order against the client.

Based on that single act, which violated RPC 1.1 (compe-

tence) and RPC 1.2(a) (assisting a client in illegal conduct),

we concluded that a 90-day sanction was appropriate. 357

Or at 298.

The accused’s misconduct at issue in this disciplinary

proceeding is readily distinguishable from that in Spencer

and Jagger. Unlike those cases, this case does not involve

a single violation; it involves multiple, repeated violations

over a long period of time. Moreover, unlike Spencer, the

accused’s interests were directly adverse to Culp’s when he

settled the potential malpractice claim.

Given the accused’s multiple violations in this case,

each of which was knowingly or intentionally committed;

the extended time period over which the violations occurred;

the substantial injury caused to Culp; the multiple aggra-

vating factors, including the accused’s selfish motive and

Culp’s vulnerability; and the limited mitigating factors, we

conclude that a lengthy sanction is appropriate. Therefore,

388 In re Ramirez

we agree with and adopt the one-year suspension imposed

by the trial panel.

The accused is suspended from the practice of law

for a period of one year, commencing 60 days from the date

of this decision.