S055631, Opinion — In re Koch

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Submitted on the record October 10, accused suspended from practice of law for
120 days, effective 60 days from date of filing of this decision December 11, 2008,
petition for reconsideration denied February 11, 2009

In re Complaint as to the Conduct of
JACQUELINE L. KOCH,
Accused.
(OSB 06-116, 06-117; SC S055631)
198 P3d 910

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# En Banc

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

Jane E. Angus, Assistant Disciplinary Counsel, Oregon
State Bar, Tigard, filed the brief for the Oregon State Bar.

No appearance by the accused.

# PER CURIAM

The accused is suspended from the practice of law for 120
days, effective 60 days from the date of the filing of this
decision.

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# PER CURIAM

In this lawyer disciplinary proceeding, the Oregon
State Bar alleged that, in the course of representing two cli-
ents, the accused violated Rule of Professional Conduct
(RPC) 1.3 (neglect of a client matter); RPC 1.4(a) (failure to
keep clients reasonably informed and to respond promptly to
reasonable requests for information) (two counts); RPC 1.4(b)
(failure to explain matters sufficiently to permit the client
to make informed legal decisions); RPC 1.15-1(d) and
Code of Professional Responsibility Disciplinary Rule (DR)
9-101(C)(3)1 (failure to account for client funds and return
funds when due) (four counts); RPC 1.16(d) (withdrawing
from representation without taking steps to protect the cli-
ent); and RPC 8.1(a)(2) (failure to comply with demands from
the Bar during a disciplinary proceeding) (four counts). We
find that the accused did not violate RPC 1.4(b), RPC 1.16(d),
and RPC 1.15-1(d) regarding one of her clients. We find that
she committed the remainder of the charged violations and
suspend her for 120 days from the practice of law.

This case arises in an unusual posture. The Bar
entered a default order against the accused because she did
not answer the Bar's complaint. As a result of her default, the
allegations in the complaint were deemed true. See Bar Rule
(BR) 5.8(a); In re Magar, 337 Or 548, 551-53, 100 P3d 727
(2004). After the default order was entered, the Bar asked
that a trial panel be appointed to determine the appropriate
sanction. The Bar introduced documentary evidence at the
hearing. The accused appeared at the beginning of the hear-
ing. She made a short statement that she was sorry that her
personal life had interfered with her practice and then left
the room in tears.

After considering the evidence at the hearing, the
trial panel did not determine whether the accused had com-
mitted the charged ethical violations. Rather, the trial panel
appears to have assumed that the accused committed all the
charged violations and limited its decision to determining the
appropriate sanction. The panel suspended the accused from

1 Oregon's Rules of Professional Conduct became effective January 1, 2005.
Because some of the accused's conduct occurred before that date, the Code of
Professional Responsibility applies to that conduct.

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the practice of law for five months but stayed the suspension
pending her completion of a year's probation. The Bar has
petitioned for review of the trial panel's decision. It argues
that the trial panel should have imposed a one-year suspen-
sion with no probation.

Before turning to the Bar's arguments, we note that,
at the Bar's urging, the trial panel appears to have reached
the question of sanctions without ever determining whether
the accused had committed the charged violations. The fact,
however, that the factual allegations in the complaint are
deemed true as a result of the accused's default does not
mean that those facts necessarily establish the charged vio-
lations by clear and convincing evidence; rather, the trial
panel still has to make that finding. See In re Kluge, 332 Or
251, 253, 27 P3d 102 (2001) (describing that two-step proc-
ess). Only after finding that an ethical violation has occurred
may the trial panel determine the appropriate sanction.

Although the trial panel did not make all the neces-
sary findings in this case, we need not remand the case to the
trial panel. This court reviews the facts in bar disciplinary
proceedings de novo. In re Fitzhenry, 343 Or 86, 88, 162 P3d
260 (2007). Although we give deference to a trial panel's
express credibility findings based on the panel's observation
of the witnesses' demeanor and manner of testifying, id. at
103, no witness testified in this case regarding the charged
violations. Rather, the record on that issue consists solely of
the complaint and the exhibits submitted by the Bar. It fol-
lows that we may determine on de novo review whether the
Bar proved the charged violations by clear and convincing
evidence before turning to whether the trial panel imposed
an appropriate sanction. We first discuss the charges that
arise from the accused's handling of Mark Dolbeer's dissolu-
tion proceeding and then turn to the charges that arise from
her handling of Beth Anne Mahler's dissolution proceeding.

We take the facts from the allegations in the com-
plaint, which are deemed true as a result of the accused's
default, and from the documents that the Bar submitted to
the trial panel. Dolbeer retained the accused in June 2003 to
represent him in a dissolution proceeding, and he paid her a
$1,500 retainer. The accused worked on Dolbeer's case over

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the next few months, and the accused notified Dolbeer of the
entry of judgment in the dissolution proceeding in January
2004. After the judgment was entered, the accused did addi-
tional work regarding Dolbeer's dissolution proceeding in
August and September 2004.

Beginning in December 2003, shortly before the
judgment was entered, Dolbeer "called [the accused] on
numerous occasions * * * to find out about refunding the rest
of [his] retainer and to have a statement sent with billed
hours." In May 2005, the accused prepared a statement of
services,2 and her office wrote a check to Dolbeer for $397, the
unearned balance of his retainer. It is not clear whether the
accused's office failed to put the check and the statement of
services in the mail or whether those documents were lost in
the mail. In any event, Dolbeer did not receive either the
statement of services or the refund check.

On February 27, 2006, Dolbeer called the accused
and asked about the balance of his retainer. The accused said
that she had sent him a check in May 2005 and was surprised
that he had not received it. "She assured [him] that she was
extremely embarrassed and promised to get the check to
[him] right away." When Dolbeer had not received the check
by March 24, 2006, he filed a complaint with the Bar, and the
Bar asked the accused for a response four days later.

The accused sent Dolbeer a check for $397 in April
2006 and sent the Bar a written response to Dolbeer's com-
plaint on May 22, 2006. The accused acknowledged that
Dolbeer had tried to contact her between December 2003 and
February 2006. She said that they had spoken "intermit-
tently between December 2003 and May 2005," that their
conversations concerned whether the case was over, and that
her office had cut Dolbeer a check in May 2005 for the
unearned balance of his retainer. The accused explained that
she had not heard from Dolbeer until February 2006, when
he called to say that he had not received a refund. The
accused acknowledged that, after receiving Dolbeer's
February 2006 call, she had not issued him a refund check
immediately. She explained that, because she "had been very

2 The previous statement of services is dated October 2003.

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ill and then learned that [her] mother was hospitalized," she
had not followed up as quickly as she should have. The
accused also provided time sheets, billing statements, and
other records to support her explanation.

The Bar did not pursue the matter further until
September 14, 2006. At that time, the disciplinary counsel for
the Bar wrote the accused asking for additional information
to verify her earlier explanation. When the accused did not
respond to that letter, the disciplinary counsel sent her two
letters during October 2006 reminding her that she had not
responded. When the accused still failed to respond, the Bar
turned the matter over to the Local Professional Responsibility
Committee (LPRC). Twice during November, a lawyer for the
LPRC called the accused but got no response. On February 6,
2007, the LPRC issued a subpoena to the accused. The
accused met with the lawyer for the LPRC on February 13
and brought Dolbeer's files with her. At that meeting, the
lawyer asked for additional documentation and responses to
questions concerning Dolbeer. The accused said that she
would provide that information but did not do so.

The Bar contends initially that the accused's failure
to send Dolbeer an accounting violated three rules: (1) RPC
1.4(a), which provides that a "lawyer shall keep a client
reasonably informed about the status of a matter and
promptly comply with reasonable requests for information";
(2) RPC 1.15-1(d), which provides in part that a lawyer,
"upon request by the client * * * shall promptly render a full
accounting regarding [client] property" held in trust; and
(3) DR 9-101(C)(3), which provides that a lawyer shall "ren-
der appropriate accounts to the lawyer's client regarding [the
client's funds]" in the lawyer's possession.3 We agree that the
accused violated those rules when she failed, despite
Dolbeer's requests, to provide him with an accounting of his
funds from October 2003 to May 2005. We also find that the
violations were knowing: Dolbeer's repeated requests put the
accused on notice that she had failed to account for the funds
that she held in trust for him. See American Bar Association's

3 As noted, DR 9-101(C)(3) applies to the accused's conduct that occurred
before the Rules of Professional Conduct went into effect on January 1, 2005.

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Standards for Imposing Lawyer Sanctions 7 (1991) (amended
1992) (ABA Standards) (defining knowledge).

The Bar next contends that the accused's failure to
promptly return the balance of Dolbeer's retainer violated
RPC 1.15-1(d), which provides that, with certain exceptions,
"a lawyer shall promptly deliver to the client * * * any funds
or other property that the client * * * is entitled to receive." In
its complaint, the Bar alleged that the "[a]ccused continued
to hold the unearned balance of the [r]etainer after the
[a]ccused concluded the representation."4 Taking that alle-
gation as true, as we must as a result of the accused's default,
we agree with the Bar that the accused violated RPC 1.15-
1(d). We also find that the accused acted knowingly, at least
for the period after February 27, 2006. At that point, she
knew that Dolbeer had not received the May 2005 refund
check, but she did not send Dolbeer a replacement check until
April 2006, after Dolbeer had complained to the Bar and after
the Bar had asked the accused for a response to Dolbeer's
complaint.

Finally, the Bar contends that the accused violated
RPC 8.1(a)(2), which provides in part that a lawyer, "in con-
nection with a disciplinary matter, shall not * * * knowingly
fail to respond to a lawful demand for information from [a]
\* \* \* disciplinary authority." The Bar argues, and we find,
that the accused violated that rule twice. She violated it
when she knowingly failed to respond to the disciplinary
counsel's September 14 letters and again when she know-
ingly failed to respond to the LPRC's request for information.

Having considered the charges regarding Dolbeer,
we turn to the accused's handling of Mahler's dissolution pro-
ceeding. The accused agreed to represent Mahler in April
2004. Mahler's divorce became final in October 2004, and
Mahler was pleased with the accused's work. All that

4 As noted, the last work that the accused performed for Dolbeer occurred in
September 2004. She did not attempt to mail a refund check to him until May 2005,
and Dolbeer did not receive a refund check until April 2006.

5 The complaint alleges that the accused violated RPC 8.1(a)(2) when she failed
to respond to the disciplinary counsel's September 14 letter. It does not allege that
the accused's failure to respond to the two letters that the disciplinary counsel sent
in October constituted additional violations of RPC 8.1(a)(2).

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remained to be done was to prepare a qualified domestic rela-
tions order (QDRO) to divide a 401(k) account. The accused
told Mahler that she would continue to represent her until
the QDRO was completed. In February 2005, the accused and
the lawyer for Mahler's husband agreed that their clients
should hire another lawyer, Dan Ricks, to prepare the
QDRO. The accused, however, did not communicate that
information to Mahler until August 2005, when Mahler
called the accused and told her that she was coming back to
Portland for a visit.6

In August 2005, Mahler and her former husband
met with Ricks, who determined that there was a problem
with the judgment. From August 2005 to May 2006, Mahler
and Ricks tried repeatedly and unsuccessfully to get in touch
with the accused both to get information and to get her assis-
tance in correcting the dissolution judgment. On May 1,
2006, Mahler filed a complaint with the Bar. The accused
responded to Mahler's complaint on August 9, 2006. In her
response, she stated that Mahler had moved, making "com-
munication somewhat more difficult than it had previously
been." She said that she had told Mahler that Mahler needed
to hire another lawyer to prepare the QDRO and, in early
February of 2005, agreed with the lawyer for Mahler's hus-
band to have their clients hire Ricks to prepare the QDRO.

The accused explained that, although she ordinarily
has nothing to do with preparing a QDRO, "there were some
questions early on [in this case], and [she] talked to attorney
Ricks and the client about information that was requested."
She stated that, although she believed that Ricks had the
necessary information, it turned out later that there was a
problem with the judgment, and she spoke with Ricks and
the lawyer for Mahler's former husband to see what was
needed to fix the problem. According to the accused, when the
issues regarding the judgment arose, she attempted to con-
tact Mahler by telephone but was unable to do so. The
accused added:

"I have had some personal problems that have caused me to
be distracted and I have also explained this to Ms. Mahler.

6 Mahler had moved in the interim.

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I believe that I have recovered from dealing with them and
that I will be able to provide proper service at this time."

On September 1, 2006, the disciplinary counsel for
the Bar wrote the accused, noting that both Mahler and Ricks
had a different memory of the events." The disciplinary coun-
sel asked the accused a series of specific questions to help the
Bar sort out that factual disagreement. When the accused did
not respond to that letter, the Bar wrote her two times during
October 2006 reminding her that she had not responded.
When the accused failed to respond to those letters, the Bar
also turned Mahler's complaint over to the LPRC.8 As noted,
on February 6, 2007, the LRPC issued a subpoena to the
accused. The accused met with the lawyer for the LRPC on
February 13 and gave the lawyer copies of Mahler's file. As a
result of that meeting, the lawyer asked for additional infor-
mation, which the accused did not provide.

Based on that conduct, the Bar contends that the
accused violated six ethical rules. As explained below, we find
that the accused violated three of those rules but did not vio-
late the remaining three rules.

We begin with the Bar's argument that the accused
violated RPC 1.3, which provides that a "lawyer shall not
neglect a legal matter entrusted to the lawyer." We find that
the accused violated this rule when she failed, from February
to August 2005, to tell Mahler that she needed to contact
Ricks to prepare a QDRO and again when she failed, after
August 2005, to respond to Ricks and Mahler's questions and
to help them correct the judgment. See In re Knappenberger,
340 Or 573, 581, 135 P3d 297 (2006) (explaining that,
although a single instance of neglect is not sufficient to vio-
late DR 6-101(B), either a course of neglectful conduct or an
extended period of neglect is sufficient). We find that the
accused acted knowingly, at least for the period from August

7 Mahler answered the accused's response and explained that, although she
had moved out-of-state, she had left several telephone numbers where the accused
could contact her. According to Mahler, if the accused had wanted to call her, she
knew how to do so.

8 When the accused did not respond to the disciplinary counsel's September 1
letter regarding Mahler and her September 14 letter regarding Dolbeer, the Bar
combined the two matters.

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2005 to May 2006. Ricks and Mahler's repeated, unsuccessful
attempts to contact her convince us that she was aware that
she was neglecting her duties to her client.

The Bar also argues that the accused violated RPC
1.4(a), which provides that a "lawyer shall keep a client
reasonably informed about the status of a matter and
promptly comply with reasonable requests for information."
We find that the accused violated the first part of that rule
(requiring lawyers to keep clients reasonably informed) when
she agreed with husband's counsel in February 2005 that
Ricks would prepare the QDRO but failed to tell Mahler of
that decision until six months later in August. She violated
the second part of that rule (requiring lawyers to respond
promptly to reasonable request for information) when she
failed to respond to Mahler and Ricks' repeated requests for
information. We find that the accused acted negligently in
failing to inform Mahler, from February to August 2005,
about the steps that she needed to take to divide the 401(k)
account but that the accused acted knowingly when she
failed, from August 2005 to May 2006, to respond to Mahler's
repeated requests for information.

The Bar next argues that the accused violated RPC
8.1(a)(2), which provides in part that a lawyer, "in connection
with a disciplinary matter, shall not * * * knowingly fail to
respond to a lawful demand for information from [a] * * * dis-
ciplinary authority." The Bar argues, and we find, that the
accused violated this rule twice. She violated it when she
knowingly failed to respond to the disciplinary counsel's
September 1 letter. The accused violated this rule again
when she knowingly failed to respond to the LPRC's request
for information.

We now turn to the remaining three charges regard-
ing Mahler. The Bar argues that the accused violated RPC
1.15-1(d), which provides in part that a lawyer, "upon request
by the client * * * , shall promptly render a full accounting
regarding * * * property" held in trust. On that point, the
complaint alleges that Mahler delivered a $2,000 retainer to
the accused. The complaint also alleges that, "[i]n and
between April 2004 and the present, the [a]ccused failed to
account for the [r]etainer." However, the complaint does not

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allege that Mahler ever requested an accounting, nor does
the record reflect such a request. RPC 1.15-1(d) conditions a
lawyer's obligation to promptly render a full accounting on a
request from the client. Without evidence of a request, the
Bar has failed to prove that the accused violated RPC
1.15-1(d).

The Bar also failed to prove that the accused violated
RPC 1.16(d), which provides in part that, "[u]pon termination
of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as
giving reasonable notice to the client * * * and refunding any
advance payment of fee or expense that has not been earned
or incurred." Under the terms of the rule, the initial issue is
whether the accused terminated her representation of
Maher. On that issue, the complaint alleges that, in October
2005, the accused failed to communicate with Mahler and
Ricks about the preparation of the QDRO and failed to take
actions to advance Mahler's interests. The complaint also
alleges that, "[i]n or about the fall of 2005, the [a]ccused con-
structively terminated her representation of Mahler" and
failed to take certain steps that RPC 1.16(d) requires upon
termination of representation.

In determining whether the Bar proved that the
accused violated RPC 1.16(d), we note, as an initial matter,
that the allegation that the accused "constructively termi-
nated her representation of Mahler" states a legal conclusion,
not a fact that is deemed true as a result of the accused's
default. See Porter v. Hill, 314 Or 86, 97, 838 P2d 45 (1992)
(explaining that, in the civil context, an allegation that an
amount was a "finance charge" is a legal conclusion, not a
well-pleaded fact that is assumed to be true). Disregarding
that allegation, we note that the remaining allegations show
that the accused neglected Mahler's legal matters and that
she failed to respond to Ricks and Mahler's questions. As
explained above, those omissions are independent ethical
violations, but we are not persuaded that, on this record, they
also establish by clear and convincing evidence that the
accused terminated her representation of Mahler. Because
RPC 1.16(d) imposes certain obligations on a lawyer only
"[u]pon termination of representation" and because we find
that the accused did not terminate her representation of

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Mahler, we conclude that the accused did not violate RPC
1.16(d).

Finally, the Bar argues that the accused violated
RPC 1.4(b), which provides that a "lawyer shall explain a
matter to the extent reasonably necessary to permit the cli-
ent to make informed decisions regarding representation." In
its complaint, the Bar alleged, in a slight variation of the
words of the rule, that the accused "failed to provide expla-
nations reasonably necessary to permit Mahler to make
informed decisions regarding representation." Not only is the
phrase "reasonably necessary" a legal conclusion, but the
complaint never specifies the "matter" that the accused failed
to explain to Mahler or why any explanation regarding that
unspecified matter was reasonably necessary for Mahler to
make an informed decision.

It is true, as the Bar alleged and the evidence shows,
that the accused failed to respond to Ricks and Mahler's
requests for information and that she failed to inform Mahler
about the status of her case in violation of RPC 1.4(a). How-
ever, not every failure to respond to a client's requests also
constitutes a failure to explain a matter sufficiently to permit
a client to make an informed legal decision. In this case, the
complaint does not allege what matter the accused failed to
explain, nor is the factual basis for the charge apparent from
the documents that the Bar submitted. Finally, in its brief,
the Bar never explains the factual basis for this charge;
instead, it simply posits, without any explanation, that the
accused violated RPC 1.4(b). In this posture, the record does
not persuade us by clear and convincing evidence that the
accused violated RPC 1.4(b).

Having found that the accused violated RPC 1.3,
RPC 1.4(a) (two counts), RPC 1.15-1(d) (two counts), DR 9-
101(C)(3), and RPC 8.1(a)(2) (four counts), we turn to the
appropriate sanction. We first consider: "(1) the duty vio-
lated; (2) the accused's mental state; and (3) the actual or
potential injury caused by the [accused's] misconduct."
Kluge, 332 Or at 259; ABA Standard 3.0. We next decide
whether any aggravating or mitigating circumstances exist.
Kluge, 332 Or at 259; ABA Standard 3.0. Finally, we consider

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the appropriate sanction in light of the court's case law.
Kluge, 332 Or at 259.

The accused violated two duties that she owed her
clients. She knowingly violated her duty of diligence. ABA
Standard 4.42. She also knowingly failed to preserve a cli-
ent's property. ABA Standard 4.12. The accused also know-
ingly violated her duty to the legal profession. ABA Standard
7.2. The accused's violations of her duties to her clients did
not result in any financial loss to either client, although
Dolbeer suffered a delay in recovering the unearned balance
of his retainer. However, the accused's repeated failure to
respond to her clients' reasonable requests did result in inju-
ries to her clients, "measured in terms of time, anxiety, and
aggravation, in attempting to coax cooperation from the
accused." In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989).
Finally, the legal system suffered an injury as a result of the
accused's failure to provide the requested information in the
course of this disciplinary proceeding: the Bar unnecessarily
expended resources in seeking to obtain the information.

With one exception, the ABA Standards provide that
suspension is the appropriate sanction for each of the
accused's violations.9 The standards provide that "[s]us-
pension is generally appropriate whe[n] a lawyer knowingly
fails to perform services for a client and causes injury or
potential injury." ABA Standard 4.42. Similarly, "[s]us-
pension is generally appropriate when a lawyer knows or
should know that he [or she] is dealing with client property
and causes injury or potential injury to a client." ABA
Standard 4.12. Finally, "[s]uspension is generally appropri-
ate when a lawyer knowingly engages in conduct that is a vio-
lation of a duty owed to the profession and causes injury or
potential injury to a client, the public, or the legal system."
ABA Standard 7.2.

Having determined preliminarily that suspension is
an appropriate sanction, we next consider any aggravating

9 We found that the accused negligently failed to keep Mahler informed of the
status of her legal matter from February to August 2005. Reprimand is generally
appropriate for that violation. ABA Standard 4.43.

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and mitigating circumstances. We find three aggravating cir-
cumstances. First, on April 13, 2004, the Bar entered a stip-
ulated order of discipline reprimanding the accused for con-
duct that is substantially similar to the conduct in this case.
In re Koch, 19 DB Rptr 92 (2004); see ABA Standard 9.22(a)
(listing prior discipline as an aggravating circumstance). We
do not assign great weight to that prior order, however. See
In re Knappenberger, 340 Or 573, 585, 135 P3d 297 (2006)
(noting, as one consideration for reaching a similar conclu-
sion, that "a stipulate[ed reprimand] has no precedential
value because stipulated sanctions providing for a reprimand
\* \* \* are not reviewed by this court and because '[m]any facts
and circumstances, most of which are not readily discernable
from the public record, motivate a lawyer and the Bar to
enter into a stipulation' " (quoting In re Murdock, 328 Or 18,
24 n 1, 968 P2d 1270 (1998)). Additionally, this case involves
a pattern of misconduct. ABA Standard 9.22(1). Finally, it
involves multiple offenses. ABA Standard 9.22(d).

We also find three mitigating factors. First, there is
an "absence of a dishonest or selfish motive." ABA Standard
9.32(b). Second, the accused is remorseful. ABA Standard
9.32(c). The accused's statement to the trial panel, although
brief, makes clear that she regrets her mistakes, as the trial
panel expressly found. Third, the accused's lapses apparently
were attributable, at least in part, to personal or emotional
problems. ABA Standard 9.32(c). The record does not disclose
the source of those problems, but we are persuaded by the
accused's written responses to the Bar that she was under-
going personal problems that affected her ability to serve her
clients' interests.

Having made a preliminary determination relying
on the ABA Standards and having considered the aggravat-
ing and mitigating factors, we now turn to this court's case
law. In comparing this case to prior cases, we note that the
accused's violations essentially divide into two groups. First,
the accused knowingly failed to attend to matters that would
have brought both Dolbeer's and Mahler's dissolution pro-
ceedings to a conclusion. Specifically, after a trial court had
entered a judgment of dissolution resolving all or most of
each client's issues, the accused failed to provide an account-
ing and refund to Dolbeer, failed to respond to Mahler's

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reasonable requests for information, and failed to take timely
steps to arrange for a QDRO. Second, in both cases, in
response to questions from the Bar, the accused provided the
Bar with a detailed explanation of her actions and also pro-
vided the Bar with documentation in the Dolbeer matter;
however, until the LPRC issued a subpoena to her, she did
not respond to the Bar's later requests for additional infor-
mation so that it could determine the accuracy of her initial
responses.

Regarding the first group of violations, this court
recently canvassed the relevant cases in In re Redden, 342 Or
393, 397-402, 153 P2d 113 (2007), and little purpose would be
served by repeating that discussion here. Suffice it to say that
the court has imposed sanctions ranging from a 60-day to a
one-year suspension when a lawyer's neglect and inattention
has resulted in lost opportunities for his or her client. See,
e.g., id. at 395 (60-day suspension when lawyer's sustained
neglect resulted in client's lost opportunity to enter into
favorable settlement); In re LaBahn, 335 Or 357, 67 P3d 381
(2003) (60-day sanction when lawyer knowingly neglected to
file proof of service resulting in dismissal of client's tort claim
and aggravating and mitigating factors offset each other);
In re Meyer, 328 Or 220, 970 P2d 647 (1999) (one-year sus-
pension when lawyer's neglect and refusal to tell client of
resulting default resulted in client's wages being garnished
for temporary support and aggravating factors applied, such
as lawyer's refusal to recognize the wrongful nature of his
conduct and three prior disciplinary violations).

This case differs from Redden, LaBahn, and Meyer
in a significant respect. Unlike the lawyers in those cases, the
accused's actions did not result in any monetary loss or lost
opportunity to her clients. Moreover, unlike the lawyer in
Meyer, the accused recognizes that she erred, and she lacks
the extensive record of disciplinary violations that the lawyer
in that case possessed. This case does, however, involve mul-
tiple offenses regarding two different clients.

Regarding the accused's failure to respond to the
Bar's inquires, this court has imposed a 120-day suspension
when a lawyer provided no response to the Bar's request for
information. In re Miles, 324 Or 218, 224-25, 923 P2d 1219

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(1996). Conversely, the court has imposed a 63-day suspen-
sion on a lawyer, which it stayed conditioned on two years'
probation, when the lawyer provided brief but inadequate
responses to the Bar on six of the seven matters under inves-
tigation and then cooperated with the LPRC. In re Haws, 310
Or 741, 754, 801 P2d 818 (1990). In this case, the accused pro-
vided much more extensive responses to the Bar than in
Haws, but she then failed to provide any response to discipli-
nary counsel's requests for additional information. Similarly,
after being subpoenaed, the accused met with counsel for the
LPRC and brought her clients' files to that meeting but there-
after failed to provide additional information that the counsel
for the LPRC sought and that the accused had agreed to pro-
vide. We think that this case falls somewhere between Haws
and Miles, although it is closer to Haws.

Considering the case law, the aggravating factors,
and the mitigating factors, we conclude that the accused
should be suspended for 120 days. We also conclude that pro-
bation is not appropriate. See In re Obert, 336 Or 640, 655, 89
P3d 1173 (2004) (explaining that "this court has not, as a
general matter, utilized probation as an alternative to other
forms of sanction").

The accused is suspended from the practice of law for
120 days, effective 60 days from the date of the filing of this
decision.