S055610, Opinion — In re Paulson

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Argued and submitted December 9, 2008, accused disbarred, commencing 60 days
from date of filing of decision September 3, 2009

In re Complaint as to the Conduct of
LAUREN J. PAULSON,
Accused.
(OSB 05-187, 06-05, 07-19, 07-20, 07-21, 07-22;
SC S055610)

216 P3d 859

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In re Paulson

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677-b

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In re Paulson

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CJS, Attorney and Client § 76.

# En Banc

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

Lauren J. Paulson, Aloha, argued the cause and filed the
briefs in propria persona.

Stacy J. Hankin, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State Bar.

## PER CURIAM

The accused is disbarred, commencing 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, alleging 13 causes of complaint, charged the
accused with violating provisions of the Oregon Code of
Professional Responsibility Disciplinary Rules (DRs) (appli-
cable to conduct before January 1, 2005) and the Oregon
Rules of Professional Conduct (RPCs) (applicable to conduct
on and after January 1, 2005). Specifically, the Bar alleged
that the accused violated DR 1-102(A)(4) and RPC 8.4(a)(4)
(conduct prejudicial to administration of justice); DR 2-
106(A) (charging a clearly excessive fee); RPC 1.16(a)(1) (fail-
ure to withdraw from representation when representation
will result in violation of RPC or other law); RPC 1.16(d) (fail-
ure to take steps to protect client's interest after termination
of representation); RPC 3.3(a)(1) (knowingly making false
statement of law or fact to tribunal); RPC 5.5 (unauthorized
practice of law); RPC 8.1(a)(2) (failure to respond to lawful
requests of disciplinary authority); and RPC 8.4(a)(3) (con-
duct involving dishonesty, fraud, deceit, or misrepresenta-
tion that reflects adversely on lawyer's fitness to practice
law).1 A trial panel of the Disciplinary Board concluded that
the accused had violated the rules as alleged. As a sanction,
the trial panel disbarred the accused.

The accused seeks review pursuant to ORS 9.536(1)
and Bar Rule of Procedure (BR) 10.1. Our review of the trial
panel's decision is de novo. ORS 9.536(2); BR 10.6. In discipli-
nary proceedings, the alleged misconduct must be estab-
lished by clear and convincing evidence. BR 5.2. "Clear and
convincing evidence" means evidence establishing that the
truth of the facts asserted is highly probable. In re Johnson,
300 Or 52, 55, 707 P2d 573 (1985).

1 As a corollary to the alleged violations of RPC 5.5 (unauthorized practice of
law), the Bar also alleged that the accused violated ORS 9.160 (practicing law while
not an active member of the bar). The trial panel found a violation of ORS 9,160,
but recognized that it had no independent significance because RPC 5.5 imple-
ments that statute. See In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (violation
of provision of ORS chapter 9 generally has no effect on sanction that this court
imposes for violations of disciplinary rules). We therefore discuss only the alleged
violations of RPC 5.5.

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In his brief to this court, however, the accused does
not challenge the trial panel's factual findings, its conclu-
sions that he violated the disciplinary rules, or the disbar-
ment sanction that the trial panel imposed for those viola-
tions. The accused's questions presented and substantive
arguments address only procedural issues and issues that he
has styled as "affirmative defenses" to the alleged violations
that he asserts require dismissal of the complaint against
him.2 At most, through certain assertions made in his sum-
mary of facts, the accused indirectly takes issue with limited
aspects of the trial panel's findings and conclusions.

Although the accused's arguments do not invite our
full de novo review of the causes of complaint, we have
reviewed the entire record and the trial panel's findings and
conclusions.3 The trial panel's opinion in this matter is com-
prehensive, detailed, and generally incisive. Because of the
manner in which the accused has limited his challenges to
the trial panel's opinion, we do not discuss the evidence pre-
sented to the trial panel-which is voluminous-in painstak-
ing detail. Even so, due to the number and variety of viola-
tions that the accused is alleged to have committed, our
discussion is extensive. In the sections that follow, we sum-
marize the record and the trial panel's findings and conclu-
sions, identify our agreement with those findings and conclu-
sions, and respond as appropriate to the challenges-albeit
indirect-that the accused makes to the trial panel's findings
and conclusions. We then turn to an examination of the
procedural issues that the accused raises, including his

2 The accused's choice to so limit his challenges to the trial panel's opinion is
similar to how he presented his challenges on review in his most recent prior dis-
ciplinary proceeding. See In re Paulson, 341 Or 542, 544, 544 n 2, 145 P3d 171
(2006), cert den, 549 US 1304 (2007) (Paulson III). Indeed, as we will later discuss,
many of the "affirmative defenses" that the accused raises in this proceeding are
ones that we rejected, some as a matter of law, in our prior decision.

3 Until 2003, this court automatically reviewed a decision to suspend for more
than six months or to disbar an Oregon State Bar member, even when the accused
did not respond to the charges against him, did not seek review of the findings of
disciplinary violations, and did not challenge the sanction imposed. ORS 9.536(2)
(2001), amended by Or Laws 2003, ch 192, § 4; see, e.g., In re Vesely, 332 Or 165, 167
n 1, 26 P3d 801 (2001) (so observing). That is no longer true. Now, if neither the Bar
nor the accused seeks review, the trial panel's decision "shall be final." ORS
9.536(1). Although our standard of review remains de novo (ORS 9.536(2)), ordi-
narily we will consider the issues for our review to be those framed by the parties'
briefs and arguments.

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"affirmative defenses." Finally, although the accused does
not challenge the appropriateness of the sanction of disbar-
ment, we address that question.

For the reasons that we explain below, we conclude
that the accused has committed all the violations alleged by
the Bar and found by the trial panel. We also conclude that
the appropriate sanction is disbarment.

## I. BRADY-AIELLO MATTER

### A. Factual Background

The Bar's first three causes of complaint arose out of
the accused's handling of an estate matter. The Bar alleged
that the accused violated four rules in his handling of the
Brady-Aiello matter: DR 1-102(A)(4) and RPC 8.4(a)(4) (con-
duct prejudicial to administration of justice);4 DR 2-106(A)
(charging clearly excessive fee); and RPC 8.1(a)(2) (failure to
respond to lawful requests of disciplinary authority).

The trial panel's opinion sets out an extensive and
detailed recitation of factual findings relevant to this matter,
complete with citations to the record. We have reviewed both
the trial panel's findings and the record in full. Based on that
review, we provide the following summary of what occurred.

The accused represented a disabled man (Brown)
and prepared both a living trust and a pour-over will for him.
Under Brown's will, the accused was made the personal rep-
resentative of the estate, all of which was devised to Brown's
caregivers, Trudy Brady-Aiello and Michael Aiello. Under
the trust, the accused succeeded Brown as trustee upon
Brown's death. Brown died in 2001. Because both Brown and
his wife, who predeceased him, had received state health
assistance during the last years of their lives, the state had
two priority claims against Brown's estate. The estate con-
sisted of only a few assets, and there were only a few claims
against those assets (e.g., the state's claims, hospital claims,
and a few other routine creditor claims). Settling the estate

4 Because the accused's conduct in this matter occurred both before and after
the January 1, 2005, date on which the Oregon Rules of Professional Conduct
replaced the Oregon Code of Professional Responsibility, both DR 1-102(A)(4) and
RPC 8.4(a)(4) apply.

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and distributing the assets should have been a straight-
forward process for all concerned. But, due to the accused's
conduct, it was not.

Although often representing that he stood ready to
distribute the assets, the accused delayed and failed to do so.
Eventually, the beneficiaries were forced to retain independ-
ent counsel. Some 17 months after Brown's death, the
accused finally filed a small estate matter in probate court.
The state then made two formal claims against the estate to
recover the medical assistance paid on behalf of Brown and
his wife. The accused, however, disallowed the claims, forcing
the state to petition the court. In that and other respects, the
accused, who was frequently suspicious and distrustful of the
beneficiaries and their lawyers, often treated the process of
settling the estate and distributing the estate as an adversar-
ial one. Eventually, by court order, the accused was removed
and replaced as trustee of the trust and personal represen-
tative of the estate. That occurred more than two and a half
years after Brown's death. The new personal representative
settled the estate and distributed the assets within a year
after taking over. The only significant complications that the
new personal representative encountered were the accused's
failure to turn over various items in the estate (including
access to a safe deposit box) and the accused's filing of an
attorney fee lien against the estate for fees that the court, in
removing the accused as personal representative, had told
the accused that he could not collect. Once the lien was dis-
missed and the new personal representative had access to the
materials and information that he needed from the accused,
the estate matter was completed within a few months.

We do not relate, detail by detail and date by date,
the series of failed meetings, frustrated negotiations, and
protracted court proceedings that are described in the trial
panel's extensive findings of fact. We do, however, quote in
full the trial panel's summary of and assessment of those
facts:

"The Brady-Aiello matter became a nightmare for vir-
tually everyone involved solely because of the actions taken
by the Accused. As noted above, this matter arose out of the
death of Alan Brown. He had two beneficiaries, Trudy

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Brady-Aiello and Michael Aiello. There were no other
beneficiaries to the estate, and only a single claim made
against the estate assets. The bulk of the estate was in a
trust and should have passed without fanfare or issue to the
Aiellos. Unfortunately, each action taken by the Accused
seemed designed to lengthen the process. When he was
removed as trustee of the estate in May 2004, nearly three
years after the decedent's death, the title to a single asset
had not yet passed to the beneficiaries.

"In a case where most beneficiaries would not need inde-
pendent counsel, three separate lawyers represented the
beneficiaries over the 31 months the Accused was involved.
Hundreds and hundreds (perhaps thousands) of dollars in
attorney fees were incurred on behalf of the beneficiaries
and paid for by the estate. Despite an order to provide one,
the Accused never provided the beneficiaries with a com-
plete accounting. He filed an interpleader action, which all
lawyers who testified or wrote on the issue indicated was
unnecessary. He disallowed legitimate claims of the State
of Oregon in the small estate matter, refused to seriously
consider settlement of those claims, and then told a circuit
court judge in open court that he had not denied any claim
against the estate. He directed his legal assistant to draft a
special power of attorney for Michael Aiello to sign so his
wife, Trudy Brady-Aiello, could handle all estate matters,
reviewed the special power of attorney, billed for his time,
and then refused to honor the special power of attorney. He
was rude, obstreperous and evasive in his deposition. His
answers rose to the level of misrepresentation. He fre-
quently responded to questions by saying he could not
answer without looking at his file, but had taken steps to
make the file unavailable at the time of his deposition. At
the deposition of his legal assistant and office manager, he
directed her not to review the file despite a subpoena duces
tecum which required that file be present. He opposed a
motion to consolidate on the ground there were no common
issues of law and fact, but argued the interpleader action
should go forward for that very reason. He continually
offered to either settle the matter or mediate the dispute in
a fashion that indicated the offer to do so was specious. In
fact, there was nothing to mediate. The beneficiaries
wanted to resolve the claim of the state in the manner nego-
tiated by Grant [the Aiellos' attorney], and the Accused
refused. He unnecessarily antagonized at least one circuit
court judge for no reason the panel can find, to the potential

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detriment of his client. He collected fees in the small estate
matter without court approval. By charging the same work
to multiple files, he was found by the court to have double
billed. He commingled entries on matters that needed to be
segregated. A circuit court judge ordered his attorney fee
lien dissolved and ordered repayment of $14,000 in fees he
collected from the estate improperly. He was ordered to pro-
vide access to a safe deposit box the next day, but took
nearly two months to comply with the order. Ultimately, he
was removed as trustee, but even then balked when it came
to transferring all of the necessary file materials."

With that factual backdrop, we turn to the particular
violations that the accused was alleged to have committed
based on his conduct in the Brady-Aiello matter.

B. DR 1-102(A)(4) and RPC 8.4(a)(4)

DR 1-102(A)(4) and RPC 8.4(a)(4) prohibit a lawyer
from engaging in conduct that is prejudicial to the adminis-
tration of justice. To establish a violation of those rules, the
Bar must show that:

"(1) the accused lawyer's action or inaction was improper;
(2) the accused lawyer's conduct occurred during the course
of a judicial proceeding or a proceeding with the trappings
of a judicial proceeding; and (3) the accused lawyer's con-
duct had or could have had a prejudicial effect upon the
administration of justice. The administration of justice
includes both the procedural functioning of the proceeding
and the substantive interests of parties to the proceeding.
Prejudice may arise from several acts that cause some
harm or a single act that causes substantial harm to the
administration of justice."

In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (synthesizing
test from In re Haws, 310 Or 741, 746-48, 801 P2d 818 (1990))
(citations omitted).5

Regarding the second element (occurring in the
course of a judicial proceeding), the trial panel determined

5 As earlier noted, the accused's conduct occurred both before and after
January 1, 2005, which was the date on which the Rules of Professional Conduct
replaced the Disciplinary Rules. RPC 8.4(a)(4) is identical to DR 1-102(A)(4). Case
law identifying the requirements of DR 1-102(A)(4) therefore is pertinent to our
analysis under RPC 8.4 that replaced it.

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that the accused's conduct, which occurred over almost a
three-year period, encompassed three court actions filed in
connection with Brown's small estate and trust matters, dis-
covery depositions, the denial of legitimate state priority
claims against the estate, and refusals to comply with court
orders. Regarding the third element (prejudicial effect), the
trial panel's pertinent findings and conclusion included that
the accused's conduct (1) forced the Aiellos to hire multiple
lawyers and to suffer needless upset, anxiety, and delay in
the distribution of Brown's simple estate; (2) the accused's
conduct forced the state to initiate costly legal action to
obtain payment of a legitimate lien, one that the estate even-
tually settled; (3) despite a court order, the accused refused to
turn over the records of the estate, which then required addi-
tional legal action to obtain the accused's compliance; (4) the
accused purposely obstructed a discovery deposition of his
legal assistant; and (5) the accused refused to distribute the
estate because Michael Aiello was unable to be personally
present for the distribution, even though the accused had
prepared and his office had notarized a special power of attor-
ney for Trudy Brady-Aiello to exercise if Michael Aiello could
not be present.6 As the trial panel concluded, the evidence
amply satisfies both the second and third elements. See In re
Gresham, 318 Or 162, 166, 864 P2d 360 (1993) (probate law-
yer engaged in conduct prejudicial to the administration of

6 The accused assisted in preparing the special power of attorney so that Trudy
Brady-Aiello could act on Michael Aiello's behalf because the Aiellos knew that
Michael was about to be incarcerated due to a drug conviction. Had the accused not
required Michael's personal presence as a condition of settling the estate, and had
the accused instead permitted Trudy to sign for Michael using the special power of
attorney, the estate might have been settled and distributed as early as May 2002,
just seven months after Brown's death. The accused's only explanation for his
refusal to honor the special power of attorney was that Trudy did not produce the
"original" special power of attorney for him. At the hearing before the trial panel,
the trial panel asked the accused why he had insisted on having the original docu-
ment produced, when he had personally reviewed the special power of attorney
(according to his billings) and his own staff had notarized it. The accused's only
explanation was that an original is always necessary. The panel found the
accused's answer unsatisfactory, as do we. We note, moreover, that there is no evi-
dence that the accused ever informed Trudy that the original document was nec-
essary or that he did anything else to affirmatively assist in overcoming whatever
obstacles the accused thought existed to settling the estate. Instead, the accused
passively waited for the beneficiaries and their attorneys unilaterally to determine
what the obstacles might be and to overcome them without the accused's
assistance.

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justice when the lawyer took an extended period of time to
close an estate and repeatedly failed to "do anything to
administer the estate," requiring the trial court to make
repeated requests for information). The accused does not
argue otherwise.

As to the first element-improper or illegal conduct
on the accused's part-the trial panel's opinion indentifies
numerous improper actions and inactions by the accused.
Many are set out in the material quoted from the trial panel's
opinion above. The accused does not directly take issue with
any of those particular facts or conclusions. He does, how-
ever, appear to take indirect issue with them. Specifically, in
his summary of facts (but not in his questions presented or
his substantive arguments), the accused states that "Tab 5"
of his Exhibit 203 "is the solitary document that exculpates
[the accused] completely"; that it demonstrates his "pains-
taking efforts" to distribute the estate; and that it contains
"[13] specific, documented overtures by [the accused] to
resolve the estate long before Judge McElligott intervened to
[remove the accused as the personal representative of the
estate] in 2004 * * *. " At the hearing before the trial panel,
the accused similarly testified that Tab 5 was the "lynchpin"
to demonstrate that he acted properly.

We have reviewed "Tab 5" in full. It consists of
18 documents or parts of documents. A few are undated draft
pleadings or stipulations. The remainder are dated and
signed letters that the accused sent in 2002, 2003, and 2004,
to various individuals in connection with the estate matter-
individuals such as the Aiellos, their attorneys, and the attor-
neys who represented the state on its claim. The accused's
only argument as to how those documents "exculpate[ ]" the
accused "completely" is that the letters often stated that the
accused was willing and able to distribute the estate, and
often invited the recipients to contact him or set up meetings
for that purpose. The evidence is overwhelming, however,
that his words in those letters did not match his conduct.7

7 Most of the individuals who received those letters testified at the disciplinary
hearing and described conduct on the accused's part that was wholly at odds with
his professed willingness to settle the estate and distribute the assets. Sometimes,
the witnesses themselves identified the contradiction. For example, Goodwin, a
lawyer who represented the state on its claim, specifically acknowledged that the

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Despite his professed willingness to distribute the estate, the
accused took few or no significant steps to facilitate matters.
At best, he was frequently passive and waited for others to
take the initiative. More often, the accused delayed, frus-
trated, and even actively interfered with efforts to settle and
resolve claims against the estate and distribute the remain-
ing assets to the beneficiaries. The accused's actions and
inactions in those regards were improper. Moreover, as the
trial panel found, the accused's improper conduct was suffi-
ciently persistent over time as to reflect a "disturbing pat-
tern" on the accused's part, especially when considered in the
context of highly similar past conduct on the accused's part
that had resulted in formal discipline.8

The Bar has proved by clear and convincing evidence
that the accused engaged in conduct prejudicial to the admin-
istration of justice, in violation of DR 1-102(A)(4) and RPC
8.4(a)(4).

# C. DR 2-106(A)

DR 2-106(A) prohibits a lawyer from charging an ille-
gal or clearly excessive fee. The Bar alleged and the trial
panel found that the accused, by comingling his billings as
personal representative with those for his work as trustee in

accused "would make comments in letters saying things like, 'I'm ready and willing
to distribute the assets,' but nothing would happen." With time, "it became fairly
clear that [the accused] wasn't really * * * willing to distribute [the assets] * * *. "
Instead, in Goodwin's opinion, the accused transformed the matter into "a real
mess" and a "tar pit for attorney fees," with the accused taking steps that were
designed to "stretch this out and generate more fees."

" In In re Paulson, 341 Or 13, 136 P3d 1087 (2006), cert den, 549 US 1116 (2007)
(Paulson II), this court suspended the accused for conduct that similarly impeded,
rather than aided, the resolution of litigation for a client. The court concluded that
the accused's individual actions might not necessarily rise to the level of miscon-
duct, but, cumulatively, they were "so egregious as to warrant sanction." Id. at 27.
The court explained:

"At virtually every point in the litigation, the accused made a decision that
placed [the accused's clients] in an ever more vulnerable legal and financial
position. Each time that the accused ignored or violated a procedural rule, the
litigation became more complicated, protracted, and expensive, and ultimately
served to prejudice the administration of justice."

Id. at 29. We agree with the trial panel that the accused's past conduct, given its
strong similarities to his conduct here, demonstrates the pervasive nature of the
accused's behavior.

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connection with the Brady-Aiello estate matter, double-
charged for certain services and collected $14,000 without
the statutorily required permission of the court. See ORS
116.173(1) (setting out fees to which a personal representa-
tive, "[u]pon application to the court[,]" may seek for serv-
ices). On review, the accused does not address the trial
panel's findings or conclusions with regard to the violations
of DR 2-106(A). Having reviewed the record as it pertains to
that cause of complaint, together with the findings and con-
clusions of the trial panel, we conclude that the Bar has
proved that the accused violated DR 2-106(A) in this matter.
See In re Knappenberger, 344 Or 559, 564, 186 P3d 272 (2008)
(accused violated rule when he charged a fee that, by law,
required authorization by Social Security Administration
without obtaining that authorization).

# D. RPC 8.1(a)(2)

In part, and as relevant here, RPC 8.1(a)(2) provides
that a lawyer shall not, in connection with a disciplinary mat-
ter, "knowingly fail to respond to a lawful demand for infor-
mation" from a disciplinary authority. As a final cause of
complaint in connection with the Brady-Aiello matter, the
Bar alleged that the accused had violated RPC 8.1(a)(2). On
review, the accused does not challenge the trial panel's find-
ings of facts and conclusions in that regard.

In concluding that the accused violated RPC
8.1(a)(2) when the Bar attempted to investigate the Brady-
Aiello matter, the trial panel specifically found:

"The Accused failed to fully and truthfully respond to
the Bar's repeated requests for information. Many
responses were intentionally non-responsive to the specific
inquiries made by the Bar, others offered nothing of sub-
stance. Indeed, on a number of occasions relating to the var-
ious cases at issue in the proceeding, the Accused didn't
respond at all. We conclude therefore that the Accused
acted knowingly in his failure to respond to the Bar's
inquiries. It is clear he intended to give the Bar as little
information as possible while attempting to preserve his
ability to argue that he was attempting to be cooperative
and responsive. We also recognize the Accused feels he is
being persecuted by the Bar. He feels this stems from his
activity relating to a disciplinary task force and his work on

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the Board of Bar Governors. We recognize the Accused's
feelings are sincere and strongly held. However, he has not
proven that his suspicions are true. His decision to express
these feelings by being evasive only strengthens our conclu-
sion that he chose not to cooperate with the Bar's investi-
gation [except] in the most de minimus of manners. Our
ethical rules require more than what the Accused
provided."

The trial panel's findings and conclusions in that regard are
significantly demeanor based, and we defer to them. See In re
Fitzhenry, 343 Or 86, 103, 162 P3d 260 (2007) (this court
defers to credibility determinations of trial panel in discipli-
nary proceedings). We conclude, as did the trial panel, that
the accused, on some occasions, failed to respond at all to the
Bar's investigatory requests; on other occasions, the accused
responded incompletely and insubstantially to the Bar's
requests. We further conclude that the accused did so with at
least the knowing mental state that the rule requires.9 The
Bar has proved that the accused violated RPC 8.1(a)(2) (fail-
ure to respond to lawful requests of disciplinary authority) in
this matter.

## II. THE RUBEO MATTER

Shannon Rubeo filed a complaint with the Bar
regarding an employment matter that the accused handled
for her. After investigating the complaint, the Bar apparently
determined that the accused had not violated any discipli-
nary rules in his handling of Rubeo's employment matter,
because it filed no causes of complaint in that regard. The
Bar did, however, allege that the accused violated RPC
8.1(a)(2) (failure to respond to lawful requests of disciplinary

9 In its opinion, the trial panel concluded that, although there are differences
between the text of RPC 8.1(a)(2) and its predecessor, DR 1-103(C), the essential
obligation to respond fully and truthfully to an investigatory request from the Bar
is the same under both the current and former rules. We have no occasion in this
case to examine any possible substantive differences between the two rules, given
the accused's failure to raise any challenge to the trial panel's analysis or its appli-
cation of the rule to him. The only difference of significance for our purposes here is
that RPC 8.1(a)(2) contains an express requirement that DR 1-103(C) did not-that
of a knowing mental state. As we discuss further in connection with the appropri-
ate sanction to be imposed, we conclude that the accused acted intentionally-not
just knowingly-with respect to several of his failures to adequately respond to the
Bar's investigatory requests. See 346 Or at 713.

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authority) during the course of the Bar's investigation of the
Rubeo complaint.

The trial panel found that the accused failed to
respond to the Bar's initial request for information and then,
after multiple reminders, he responded incompletely. The
trial panel further found it "noteworthy" that, "in almost
every letter the Bar sent to the Accused in this matter, the
Accused was advised that his failure to cooperate with and/or
respond to the Bar's requests" would be contrary to RPC
8.1(a)(2). Even so, whether the accused's failure to cooperate
violated the rule was a "close case" in the trial panel's view, in
part because of the tension that had developed between dis-
ciplinary counsel and the accused. On that score, the trial
panel, while suggesting that there may have been sufficient
blame to go around, specifically found that, had the accused
provided a copy of the Rubeo file to the Bar when initially
requested, "this matter would not now be before us." Given
the precipitating role of the accused's initial noncooperation,
together with his later incomplete responses to the Bar's
inquiries, the trial panel concluded that the accused had
"failed to respond to a lawful demand for information," in vio-
lation of RPC 8.1(a)(2).

The accused does not challenge any of the trial
panel's findings or conclusions regarding his noncooperation
with the Bar's investigation of the Rubeo complaint.
Rather-and again, only through statements in his summary
of facts and not through direct argument-the accused
asserts that his handling of the Rubeo matter, which
involved a fee dispute, never should have been referred to the
disciplinary counsel's office, thus suggesting that the Bar's
investigation was inappropriate.

The fact that Rubeo's complaint, after investigation,
was apparently dismissed is-at least in and of itself-
irrelevant. The accused has neither argued nor demonstrated
that Rubeo's complaint to the Bar did not raise at least an
arguable complaint of misconduct, one that the Bar had legal
authority to investigate. See ORS 9.542 (Board of Governors
of the Bar authorized, subject to Supreme Court approval, to
adopt rules governing investigations of conduct of attorneys);
BR 2.5(b)(1) (if complaint presents "sufficient evidence to

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support a reasonable belief that misconduct may have
occurred," complaint will be referred to Disciplinary
Counsel). As this court has noted in past cases, a significant
number of complaints against Bar members can be and are
resolved at the initial investigatory stage; the Bar's investi-
gation may exonerate a lawyer rather than lead to formal dis-
ciplinary proceedings. See generally Haws, 310 Or at 751.
Full and timely responses to Bar investigatory requests are
in the interests of individual Bar members, as well as the col-
lective membership of the Bar and the public generally. See
id. (lawyer's failure to promptly and fully respond to client's
complaint to Bar burdens and delays disciplinary process in
general). In the absence of any claim or demonstration by the
accused that the Bar's investigatory request was not a lawful
one, we agree with the trial panel that the accused's conduct
in the Rubeo matter violated RPC 8.1(a)(2).10

## III. HERNANDEZ, SCHAUERMANN, MONTALBANO, AND OSB MATTERS

The accused was suspended from the practice of law
for six months, effective October 15, 2006. In re Paulson, 341
Or 13, 136 P3d 1087 (2006), cert den, 549 US 1116 (2007)
(Paulson II) (accused violated DR 1-102(A)(4) for conduct
prejudicial to the administration of justice). The first three mat-
ters that we address in this section (Hernandez, Schauermann,
and Montalbano) are complaints filed with the Bar by attor-
neys or judges based on the accused's representation of cli-
ents around the time of the accused's suspension. The related
so-called "OSB Matters" are complaints initiated by the Bar
that similarly involved the accused's representation of clients
around the time of his suspension. In general, with regard to
those several matters, the trial panel found that the accused
violated several different disciplinary rules (which we

10 The accused also asserts in his summary of facts that Bar disciplinary coun-
sel, Hankin, visited his office while she was investigating the Brady-Aiello matter
and discussed the Rubeo case with him on several occasions during those visits. He
states that, through "a wink and a nod, [Hankin] advised [the accused] not to worry
about the Rubeo matter." The accused provides no citations to the record, and we
have found no evidence-let alone persuasive evidence-that supports his asser-
tion. In fact, the accused's own testimony before the trial panel was that Hankin
"mildly warned" him that he needed to respond better to the Bar's requests and
that he might face a formal complaint if he did not.

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identify and discuss at greater length below) by not protect-
ing his client's interests in anticipation of his suspension, by
practicing law while suspended, and by misrepresenting cer-
tain facts to trial courts in cases to which his clients were
parties.

On review, as with the violations that we previously
have discussed, the accused takes only limited issue with the
trial panel's detailed findings and conclusions relevant to
these several matters. What limited issue he does take-
again, indirectly through his summary of facts, rather than
directly through his substantive arguments-relates to the
legal and disciplinary significance of his activities at certain
points in time. More specifically, he disputes only whether
certain actions that he took amounted to the practice of law
and whether, when he made certain representations as to the
legal status of his disciplinary proceeding to the trial courts
presiding over several of his client's cases, his representation
was legally accurate. The pertinent historical facts are, in all
regards, undisputed, and the trial panel's factual findings are
unchallenged.

Again, we have reviewed the record de novo,
together with the trial panel's factual findings and conclu-
sions on each of these matters. For present purposes, because
the accused's challenge to the trial panel's conclusion is par-
ticularly narrow, we briefly summarize the facts to provide
context for our discussion of the issue that the accused pres-
ents and the charges that arose out of these matters.

### A. Factual Background

As noted, on June 8, 2006, this court issued a deci-
sion suspending the accused for six months from the practice
of law, based on his violation of the disciplinary rules.
Paulson II, 341 Or at 34. The suspension took effect on
October 15, 2006.11 Almost two months earlier (via a letter
dated August 23, 2006), the Bar formally advised the accused

11 In our decision, we ordered the suspension to take effect 60 days from the
date of the decision. Id. By rule, the effective date of the decision is the date of entry
of the appellate judgment. ORAP 14.05(2)(c). The accused petitioned for reconsid-
eration, which this court denied by order on August 15, 2006. The next day, on
August 16, 2006, the appellate judgment issued, making the suspension effective
October 15, 2006.

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that the suspension would begin October 15, 2006, and out-
lined his responsibilities while suspended (e.g., to stop prac-
ticing law, to assist clients in the transition of their legal mat-
ters to new counsel, to take all responsible steps to avoid
foreseeable prejudice to his clients' interests). On November 13,
2006, the accused asked this court to stay the judgment pend-
ing resolution of his petition for certiorari to the United
States Supreme Court (which he filed that same date). This
court denied the motion for stay on December 5, 2006, and
the Supreme Court denied his petition for certiorari on
January 8, 2007.

In each of these matters (Hernandez, Schauermann,
Montalbano, and the OSB matters), the accused dated and
mailed a total of five motions-each entitled "Motion to post-
pone trial/hearing and to abate"-to the circuit court in five
separate actions involving several of the accused's clients.
The date on which the accused did so was October 15, 2006,
the same date on which his suspension became effective
(which was a Sunday). The motions were virtually identical
in substance. Each represented that a postponement and
abatement in the case was necessary because "In re Paulson,
Supreme Court Case No. S52465" was "on appeal." For some
of those matters, the record is silent as to whether the
accused consulted his client before filing the motion. In oth-
ers, the clients expressly testified that the accused did not
consult with them.

The accused also took other actions in connection
with some of those proceedings, which included:

· On August 2, 2006, after this court's decision ordering
his suspension, but before the effective date of the sus-
pension, the accused filed a complaint initiating an
action on a client's behalf in Washington County.

· On October 15, 2006, the effective date of his suspension,
the accused, without referring to his suspension, filed by
mail a "Plaintiff's First Amended Complaint" in a case in
which a motion to dismiss was pending.

· Before his suspension, on dates in September and
October 2006, the accused met with opposing counsel to
discuss settlement of a child custody case (the "Loucks"

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case) in which the accused's client, the child's father, was
alleging that the child was being exposed to abuse in the
child's mother's home. Trial in the case was scheduled
for October 19, 2006. The accused did not mention his
upcoming suspension to opposing counsel. One day
before his suspension, on October 14, 2006, the accused
wrote opposing counsel, further discussing settlement
and some remaining issues between the parties. On
October 15, 2006, the accused dated and mailed to the
court a motion to withdraw from the Loucks case. On
October 16, 2006-one day after the accused's suspen-
sion became effective-opposing counsel responded in
writing to the accused's settlement letter. That same
day, the accused and opposing counsel discussed settle-
ment. When opposing counsel later prepared and faxed a
stipulated judgment to the accused, opposing counsel
received no response and was unable to reach the
accused, despite hourly attempts to call him.

Finally, in connection with several of these matters,
the accused failed to take steps to notify his clients of his pro-
spective suspended status and of his suspension once it
began; he filed significant motions in their cases without
their knowledge; and, in the Loucks child custody matter, the
accused withdrew from the client's representation without
the client's knowledge, and the client did not learn until the
day before trial that the accused would not be representing
him. The client in that case had to fend for himself in obtain-
ing new counsel, and the accused was slow to release his file
in the case to the client's new attorney. Resolution of the
Loucks child custody matter was delayed by at least a month
as a result.

In each of these matters, when the Bar began its
investigation into the possible misconduct on the accused's
part, the Bar wrote letters to the accused asking for infor-
mation in connection with the complaint and gave the
accused nearly two months in which to provide that infor-
mation. In each instance, the accused did not respond. The
Bar then sent the accused a reminder letter. Approximately a
week after that, the accused responded, sending separate let-
ters in each matter. Each letter said only:

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"Thank you for yours of January 3, 2007. Please see BR
1.9, BR 2.5, BR 6.3 and ORCP 10.

"Thank you for your interest and devotion to duty."12

The accused never responded further to the Bar's investiga-
tory inquiries in these matters.

### B. The Violations

As already noted, the accused raises only narrow
issues in connection with the violations that the trial panel
found based on his conduct in these matters. As a result, sev-
eral of the violations are, in effect, unchallenged by the
accused. We discuss those violations first, and somewhat
summarily. We then turn to the violations that the accused's
challenges implicate.

#### 1. RPC 1.16(d)

RPC 1.16(d) requires a lawyer to take all reasonable
steps to protect a client's interests and prevent prejudice to
the client upon termination of representation.13 The trial
panel found that the accused violated that rule in connection
with his handling of the Loucks child custody case on and
around the date that his suspension began.

In particular, the trial panel observed that the cus-
tody case was set for trial only a few days after the accused's
suspension was to begin. On the first day of his suspension,
the accused prepared and mailed both a motion to postpone
and abate the case and a motion to withdraw as counsel for

12 BR 1.9 is a general provision regarding the computation of time periods
under the rules (Saturday and holiday exclusions); BR 2.5 is a rule regarding
intake of complaints by the Client Assistance Office; BR 6.3 provides, in part, that
the rules do not preclude a suspended lawyer from providing information to a suc-
ceeding attorney and that the suspended lawyer "shall" provide the information
"on request"; and ORCP 10 provides for the computation of time for any period of
time prescribed or allowed by the Rules of Civil Procedure. The inference appar-
ently to be drawn from the accused's cryptic message was that the accused's sus-
pension had not begun until Monday, October 16, 2006. The accused, to the extent
that he ever advanced that position, no longer does.

13 RPC 1.16(d) provides, in part:

"Upon 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, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding
any advance payment * * *. "

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his client. The accused did not contact or otherwise commu-
nicate with his client about his status. Neither did the
accused inform his client of the motions that he had mailed to
the court only days before trial. Instead, the accused basically
left his client to fend for himself in the matter. The day before
trial, the client found out from opposing counsel that the
accused was suspended; the accused's client then had to
scramble to find alternative representation. Once the client
found new counsel, the accused was slow to turn over his file
to either his client or the new attorney.

The accused does not challenge either the trial
panel's findings or its conclusion that the accused violated
RPC 1.16(d) in his handling of the Loucks case. Based on our
review of the record and the trial panel's determination, we
agree that the accused violated RPC 1.16(d). See In re Biggs,
318 Or 281, 864 P2d 1310 (1994) (lawyer abruptly left prac-
tice without notifying clients or finding other lawyers for his
clients); In re Devers, 317 Or 261, 855 P2d 617 (1993) (lawyer
failed to return client's file).

#### 2. RPC 8.1(a)(2)

RPC 8.1(a)(2), as we discussed previously in connec-
tion with the Brady-Aiello matter, prohibits a lawyer from
"knowingly fail[ing] to respond to a lawful demand for infor-
mation" in a disciplinary investigation. The evidence is
undisputed that, as the trial panel found, the accused failed
to respond to the Bar's initial request for information in each
of these matters. In each instance, after the accused's initial
failure, the Bar sent out a reminder letter. When the accused
finally responded, he did so with a nonresponsive sentence
citing various Bar Rules and ORCP 10. The trial panel found
that the accused's initial failure to respond and his later
inadequate response violated RPC 8.1(a)(2). The accused
raises no argument that calls the trial panel's findings or con-
clusions on that violation into question. We, too, find that the
accused violated RPC 8.1(a)(2) in these matters.

#### 3. RPC 1.16(a)(1) and RPC 5.5

The Bar alleged several causes of complaint based on
what the Bar asserted was the accused's practice of law at a
time when he was suspended. The trial panel found that the

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Bar had proved violations in each instance. In particular, the
trial panel found that the accused violated RPC 5.5 (unau-
thorized practice of law) and RPC 1.16(a)(1) (failure to with-
draw from representation when representation will result in
violation of RPC or other law).

Those charges are among the few that the accused
disputes. In doing so, he does not dispute that he engaged in
the actions and inactions found by the trial panel. Neither
does he dispute that he did so on the dates identified in the
trial panel's findings. Instead, he disputes only whether his
conduct qualified as the practice of law. In particular (and,
again, in his summary of facts and not in his substantive
argument), the accused asserts summarily, "The date some-
thing is filed has nothing to do with someone practicing law"
and "[c]lerks file things, lawyers don't." He further asserts
that the "law is clear on that point[,]" although he cites noth-
ing in support of his proposition.

The accused was suspended as of October 15, 2006.
The trial panel found that the accused engaged in conduct
that he "was not authorized to engage in * * * on October 15,
2006." In particular, at the disciplinary hearing, the accused
acknowledged that he prepared the various motions to post-
pone and abate in these matters on that same date (a
Sunday). Consistently with that acknowledgment, the
motions in fact were dated for that date and signed by the
accused. They also were mailed that date, either by the
accused or by someone acting at his direction. By preparing
and mailing them, the accused performed all the acts neces-
sary to cause the motions to be delivered to the court clerk,
which is what constitutes "filing." See ORCP 9 E (providing,
in part, that "the filing of pleadings and other documents
with the court * * * shall be made by filing them with the
clerk of the court"). There is no merit to the accused's argu-
ment that, by preparing, signing, and mailing the motions to
the circuit courts in each of the matters on the first date of his
suspension, he did not engage in the practice of law. Based on
our review of the record and the trial panel's determination,
we agree that the accused violated RPC 5.5.

RPC 1.16(a)(1) requires a lawyer to withdraw from
representation if the representation will result in a violation

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of the rules or other law. As noted, the accused was sus-
pended as of October 15, 2006. Consequently, as the trial
panel correctly observed, "any efforts by the Accused to prac-
tice law on or after that date was in violation of the court's
order." The trial panel found that the accused, although sus-
pended from the practice of law on October 15, 2006, failed to
withdraw from representing his clients in the Hernandez,
Schauermann, Montalbano, and OSB matters other than
Loucks. He instead continued representation of the clients in
those matters, which constituted the unauthorized practice
of law in violation of both the court's order and RPC 5.5.
Accordingly, we conclude, as the trial panel did, that the
accused's failure to withdraw from representation violated
RPC 1.16(a)(1).

### 4. RPC 3.3(a)(1), RPC 8.4(a)(3), and RPC 8.4(a)(4)

RPC 3.3(a)(1) prohibits a lawyer from making a false
statement to a tribunal. RPC 8.4(a)(3) prohibits a lawyer
from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation that reflects adversely on the lawyer's
fitness to practice law. RPC 8.4(a)(4), as earlier discussed in
connection with the Brady-Aiello matter, prohibits a lawyer
from engaging in conduct that is prejudicial to the adminis-
tration of justice. The Bar alleged, and the trial panel found,
that the accused violated each of those rules by representing
in his several motions to abate and postpone, and in his dec-
larations in support of those motions, that his disciplinary
proceeding was "on appeal" as of October 15, 2006.14 Without
any development of the point, the accused merely states in
his summary of facts that his representation was true.

As the trial panel concluded, however, the accused's
sworn representation that his disciplinary case was “on
appeal" was patently not true. The procedural facts pertinent
to the issue are straightforward. This court had issued
its decision on June 8, 2006. The accused timely petitioned
for reconsideration, and this court denied the petition on
August 15, 2006. The appellate judgment issued the next
day. As a result, the accused's suspension went into effect on

14 The accused supported each motion with a "Declaration of Lauren Paulson"
in which the accused attested, under penalty of perjury, to the truth of the repre-
sentations about the status of his disciplinary matter.

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October 15, 2006. On that same date, the accused filed the
motions representing that his disciplinary matter was “on
appeal." That was not so. The accused, as of that date, had
pursued to conclusion the only appellate remedy available to
him as a matter of right-viz., review by this court. His only
remaining remedies were discretionary ones, and he had
taken no action to pursue any of them. To be sure, the
accused evidently intended to seek discretionary review by
the United States Supreme Court-as opposed to appeal as a
matter of right, which was not available to him.15 He had not
done so, however. And the accused, we presume, likewise
intended to apply for a stay by this court, as he later did on
November 13, 2006, without success. When the accused rep-
resented in his motions that his disciplinary case was “on
appeal," however, no appellate proceeding was pending. This
court had issued its appellate decision several months before;
the appellate judgment had issued; the Bar had written the
accused advising him when his suspension would take effect;
and the suspension had become effective on the very day that
the accused prepared, dated, and signed the motions contain-
ing the representation.

As the trial panel concluded, the accused falsely rep-
resented in his several motions to abate and postpone that
his disciplinary matter was on appeal. The trial panel further
concluded that the accused knew that the representations
were false. The trial panel explained:

"The Accused clarified during trial that what he meant by
this statement was that the case was still pending before
the Oregon Supreme Court. He acknowledged that as of
October 15, 2006, the Writ of Certiorari to the US Supreme
Court was not yet in the works, and the motion to stay his
suspension filed with the Oregon Supreme Court was not
filed until almost a month after the [ ] October 15 motions
were prepared and filed. The declarations to the various
trial courts regarding the status of Paulson II were false
and the Accused knew they were false at the time he made

15 As the trial panel specifically noted, the accused "clarified during trial that
what he meant by [the statement that the matter was on appeal] was that the case
was still pending before the Oregon Supreme Court." The accused also acknowl-
edged that his petition for certiorari was "not yet in the works" and that his motion
to this court to stay the suspension was not filed until a month after he had made
the representations that his disciplinary matter was on appeal.

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them. Each of the 'declarations' filed by the Accused include
the statement 'I hereby declare that the above statements
are based on personal knowledge, are true to the best of my
knowledge and belief, and I understand they are made for
use as evidence in Court and are subject to penalty for per-
jury.' Thus, it would seem that the Accused was well aware
of the importance of telling the truth to these trial courts."

(Transcript citations omitted.)

The trial panel further found that the accused's false
representations in his motions to postpone and abate were
"designed to mislead." In that regard, the trial panel specially
noted that, based on its observations of the accused through-
out the disciplinary hearing before the trial panel, the
accused was someone who "chooses his words carefully to
convey an intended meaning." That demeanor-based obser-
vation-that the accused deliberately crafts his words for an
intended effect-led the trial panel to expressly find that,
"[i]n the declarations at issue here, he chose words to convey
a meaning that was not true. We believe he did this deliber-
ately, to add strength to his motion."16 We defer to that
express, credibility-based determination on the trial panel's
part, which, in all events, is confirmed by our de novo review
of the record. See generally Fitzhenry, 343 Or at 103 (discuss-
ing when court defers to credibility-based findings of discipli-
nary trial panel).

The trial panel concluded that the accused, by delib-
erately making a false statement in his several circuit court
motions, violated each of several rules. We agree. We find
that the accused's intentional conduct in making the false
representations in his several circuit court motions violated

16 The trial panel discussed not only the accused's statement in his motions
that his disciplinary matter was "on appeal," but also his statement that he was
"requesting a stay" of his disciplinary matter so that he could continue his repre-
sentation in the various matters in which he filed the motions. The trial panel
observed that, given the accused's inclination to craft his words carefully, a state-
ment that "'I am requesting a stay' is quite clearly not the same as 'I intend to
request a stay in [my disciplinary proceeding].'" The trial panel did not appear to
view the accused's representation about the stay as an independent violation of the
rules, so much as it was context and part of the representation that the disciplinary
matter was "on appeal." We agree. We note, as further context, that the accused
cited his disciplinary proceeding only as "In re Paulson, Supreme Court Case No.
S52465," which suggested a pending appeal. He did not cite the reported decision
announcing the resolution of the appeal, as he readily could have.

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RPC 3.3(a)(1) (knowingly making a false statement of law or
fact to a tribunal), RPC 8.4(a)(3) (conduct involving dishon-
esty, fraud, deceit, or misrepresentation that adversely
reflects on the lawyer's fitness to practice law), and RPC
8.4(a)(4) (conduct prejudicial to the administration of justice).

## IV. PROCEDURAL ISSUES AND AFFIRMATIVE DEFENSES

As we earlier described, the accused's substantive
arguments in his brief do not challenge the trial panel's fac-
tual findings or conclusions as to the rules that the trial panel
found the accused to have violated. Instead, the accused
raises only procedural issues that he has styled as "affirma-
tive defenses"-defenses that, in his view, require dismissal
of the disciplinary proceeding in its entirety.

We do not discuss all the issues that the accused
raises and argues. Some repeat arguments that we have pre-
viously rejected in our review of the accused's prior discipli-
nary proceedings.17 Others raise matters that simply are not
relevant "defenses" to the disciplinary violations at issue in
this proceeding.18 Still others raise issues that were not

17 See Paulson III, 341 Or at 546 (rejecting the accused's claim that this court
does not exercise independent judgment in appointing members of the Disciplinary
Board and that disciplinary counsel plays an inappropriate role in advising the
Board; concluding that, in all events, given the court's de novo review of discipli-
nary cases, the defect that the accused perceives has no effect on the fairness or the
legitimacy of this court's resolution of a disciplinary matter); id. at 546-47 (reject-
ing the accused's argument that BR 18.6, which resulted in his suspension from the
Board of Governors during the pendency of his formal disciplinary charges, is an
unconstitutional Bill of Attainder); In re Paulson, 335 Or 436, 439, 71 P3d 60 (2003)
(Paulson I) (rejecting accused's argument that trial panel's failure to file opinion
within the timelines identified in the Bar's rules requires automatic dismissal of
disciplinary charges).

18 The accused argues extensively that the trial judges who presided over the
circuit court proceedings involved in settling the Brown estate and distributing the
assets were biased against him. After entry of the rulings that the accused asserts
reflected judicial bias (e.g., the order removing the accused as trustee and personal
representative; the order requiring him to repay fees that he had collected from the
estate), the accused petitioned this court for a writ of mandamus based on his claim
of judicial bias. This court denied that petition. The accused renews his arguments,
but they are irrelevant to the fairness of this disciplinary proceeding and to
whether the accused committed the violations as alleged.

In something of the same vein, the accused renews arguments about perceived
improprieties in his prior disciplinary proceedings, some of which he previously
argued to this court on review in those prior proceedings, and some of which may be
new, but have no bearing on either the violations or the sanction at stake in this

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raised before the trial panel and that are unpreserved and
undeveloped for our review.19

As to those arguments that do warrant discussion,
the accused presents them all pursuant to a single question
presented: "Is the Oregon State Bar disciplinary system
unconstitutional because it denies Oregon State Bar mem-
bers free speech, due process and equal protection of the
laws?" Although some of the accused's arguments appear to
raise claims of systemic unconstitutionality, others are
claims of procedural irregularities that are specific to this
case. We begin with those claims. We then turn to the
accused's apparent claims of systemic unconstitutionality.

### A. Panel Opinion Signed by Only Two Panel Members

When the trial panel filed its opinion with the
Disciplinary Board, the panel chair did so with a cover letter
and an initial footnote in the opinion itself acknowledging
that the opinion had been signed by only two of the three
members of the trial panel. The letter explained that the
member who did not sign the opinion (Dr. Kosokoff, the pub-
lic member of the panel) had "fully participated in the trial of
the case, the deliberations and ultimate decision of the trial
panel, and also provided comment and input on the initial
draft of the opinion." Because of Kosokoff's travel plans,
which required him to be out of the country, the date for filing
the opinion had been extended to permit him to review and
comment on the opinion in its final form after his return.
While traveling, however, Kosokoff suffered a stroke and was
hospitalized out of state. He could not communicate verbally
and was unavailable to review the final written opinion and
to sign it. The chair ended the letter stating, "Because

case (e.g., that this court, on de novo review, should not be able to increase the
period of an accused's suspension). Those and similar arguments advanced by the
accused are not pertinent to the issues in this case.

19 For example, the accused summarily argues that, as a result of this discipli-
nary proceeding, he "has been injured and has been denied a right to a jury trial by
his peers," citing Article I, section 10 (right to remedy for an injury), and Article I,
section 17 (right to jury trial in civil cases), of the Oregon Constitution. The accused
did not raise those arguments before the trial panel. Even if he had, he does not
adequately develop them on review. We therefore do not consider those arguments.

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Dr. Kosokoff actively participated in the trial and decision
process, and to avoid further delay in the case, I have elected
to proceed with filing the opinion without Dr. Kosokoff's
signature."

BR 2.4(a) requires a trial panel in a disciplinary pro-
ceeding to consist of "2 attorneys and 1 public member." BR
2.4(i)(2)(a) provides, in part, that "the trial panel shall render
a written opinion signed by the concurring members of the
trial panel." That rule also provides that a dissenting mem-
ber shall note his or her dissent, and may file a dissenting
opinion and attach it to the majority opinion of the trial
panel.

Relying on that requirement, the accused argues
that the lack of Kosokoff's signature on the opinion requires a
mistrial. The accused urges that "[n]o one knows if [Kosokoff]
was ill during the proceedings" and now suggests, based on
the accused's observations, that Kosokoff may not have been
well at that time. The accused maintains that the trial
panel's understanding of how Kosokoff voted was a product of
"inadmissible hearsay."20 In the accused's view, the proce-
dural irregularity of having only two signatures on the opin-
ion per se requires a mistrial.

Although the lack of Kosokoff's signature on the
opinion may be a procedural irregularity, it is not one that
requires a mistrial. Nothing in the Bar's rules expressly
requires that all three panel members actually sign the panel
opinion. Rather, only those concurring must do so. Here, the
chair and one other member of the trial panel concurring in
the decision both signed the opinion. That is enough to make
the opinion the official opinion of the panel. If one panel
member were to insist on abstaining from casting a vote,

20 The accused presumably bases that assertion on the fact that the chair, in
her letter accompanying the opinion, noted that Kosokoff's wife had contacted the
chair about Kosokoff's illness and had advised the chair that, before leaving on his
travels, Kosokoff had discussed the draft opinion with his wife and told her that he
agreed with the decision to disbar the accused. That representation was, to be sure,
hearsay, insofar as the truth of Kosokoff's statements to his wife are concerned.
But the chair knew firsthand how Kosokoff had voted on the ultimate decision and
she was a witness to his participation in the panel's deliberations. The chair's ref-
erence to the wife's statements appear to have been offered only as added, not inde-
pendent, assurance of Kosokoff's position.

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nothing in the rule prevents two concurring members from
still rendering an opinion and giving it effect by signing it.
At best for the accused, that was the consequence of
Kosokoff's inability to sign the panel opinion here-he did not
join in the opinion, and neither did he dissent. He effectively
is in the position of an abstaining panel member.

We might reach a different conclusion if the irregu-
larity were shown to have prejudiced the accused. But here,
there is no prejudice. The accused's belated assertion that
Kosokoff may not have been well at the time of the hearing is
unsupported. Our de novo review of the record confirms his
active participation in the hearing (e.g., through the ques-
tions he asked both of witnesses and the accused). And, sig-
nificantly, the accused raised no claim during the proceed-
ings that Kosokoff seemed ill or was otherwise not par-
ticipating. Neither did the accused do anything to raise such
an assertion when the trial panel chair, upon filing the opin-
ion, noted Kosokoff's participation in the hearing and the
deliberations on the draft opinion, while explaining the cir-
cumstances that prevented Kosokoff from participating in
review of the final opinion and signing it. Under the circum-
stances, there is no reason to believe that Kosokoff's post-
hearing illness limited the development of the record or the
deliberations of the trial panel, or that it in any other way
deprived the accused of a fundamentally fair proceeding.
See In re Hendrick, 346 Or 98, 107-08, 208 P3d 488 (2009)
(de novo review cannot cure a procedural error that might
affect the development of the record). The accused is not enti-
tled to a new disciplinary hearing on this ground.

### B. Joinder of Complaints

The accused asserts that the complaints arising out
of the several matters involved in this case were improperly
consolidated into one disciplinary proceeding because the
several matters have "no nexus in either law or fact." BR
4.1(d) specifically vests the State Professional Responsibility
Board (SPRB) with the authority to consolidate two or more
causes of complaint against the same lawyer. Implicit in the
rule is the recognition that the fact that the charges are

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against the same lawyer provides a sufficient "nexus" for
joinder of the separate causes of complaint. The rule is
analogous to the rule that governs permissive joinder in civil
proceedings in circuit court. See ORCP 24 A (plaintiff may
join in single complaint as many claims as plaintiff has
against an opposing party). The accused's reliance on the
standards for consolidating charges in criminal cases does
not aid him-disciplinary proceedings are governed by the
Bar's rules, not the statutes that apply to criminal prosecu-
tions. See generally In re Wyllie, 326 Or 622, 626, 956 P2d 951
(1998) (bar disciplinary proceedings are not criminal pro-
ceedings). To whatever extent the accused may maintain
that general federal principles of "due process" compel some
different test for joinder of complaints in lawyer disciplinary
matters, the accused has made no developed or legally sup-
ported argument in that regard. The accused's challenge to
the joinder of the several complaints against him provides no
ground for relief.21

21 The accused also suggests that consolidation of the matters left him unpre-
pared to defend himself. He relies on the fact that the Bar's first complaint per-
tained to only the Brady-Aiello and Rubeo matters, which were scheduled for hear-
ing on April 25, 2007. Then, on March 8, 2007, the Bar amended its complaint to
include allegations arising from the other matters.

The accused did not claim to the trial panel that he was not prepared to defend
himself on the amended charges, however. To the contrary, the record demon-
strates just the opposite. The trial panel chair permitted the Bar to amend its com-
plaint after finding that the accused appeared "to have had notice and knowledge
of the Bar's allegations some time ago and the new allegations appear to stem pri-
marily from action taken by [the accused] on the same date (October 16, 2006)."
The chair conditioned her ruling, however, stating that she would allow the Bar to
go forward on the amended complaint only "so long as all necessary (and reason-
able) discovery can be completed" before the hearing consistently with Bar rules.
At the outset of the hearing, the accused continued to press his request to depose
the judges who ruled in the Brady-Aiello matter, but he made no assertion that he
did not receive discovery on the new matters in the amended complaint or that he
otherwise had not had sufficient time to prepare a defense on those matters. Ulti-
mately, there was a several week break between the first two days of the hearing
(April 27 and April 28, 2007), and the final day (June 21, 2007). On the last day of
the hearing, the Bar completed its case, and the accused presented his evidence.
The accused advised the trial panel that, with respect to the additional matters in
the amended complaint, "I don't know of anything I wouldn't be willing to stipulate
to. * * * I'm probably willing to stipulate to most of what the [B]ar plans to put on."
Counsel for the Bar and the accused then conferred off the record, and both sides
stipulated to the evidence on those matters (i.e., the Bar's investigative reports). In
short, the record provides no support for the accused's assertion-raised for the
first time on review-that he needed additional time to meet the Bar's evidence on
the new matters raised in the amended complaint.

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### C. Discovery

The accused asserts that the trial panel improperly
denied him discovery by denying his request to depose judges
who had ruled in the underlying circuit court proceedings in
the Brady-Aiello matter and who, according to the accused,
were biased against him. In response to the accused's
attempt to depose those judges, the Department of Justice
moved for a protective order. The trial panel chair granted
the motion after concluding that the accused wanted to
depose the judges on matters collateral to the disciplinary
charges that he was facing. At various times during the hear-
ing, the subject came up again, with the accused effectively
renewing his request to depose those judges. The trial panel
chair considered those requests, but each time concluded, as
she had earlier, before the hearing, that the matters into
which the accused wanted to inquire would not be sufficiently
relevant to the issues in this disciplinary proceeding.

Under BR 4.5(b)(1), an accused lawyer in a discipli-
nary proceeding is entitled to seek discovery through
requests for admission, production of documents, and the use
of depositions. The accused's right to discovery, however, is
not absolute. The purpose of discovery in disciplinary pro-
ceedings is "to promote identification of issues and a prompt
and fair hearing on the charges." BR 4.5(a). The trial panel
chair, who is charged with ruling on discovery motions, is
vested with discretion in that regard and may "impose such
terms or limitations on the exercise of discovery as may
appear necessary to prevent undue delay or expense in bring-
ing the matter to hearing and to promote the interests of jus-
tice." BR 4.5(d).

The accused makes only a categorical argument that
he was entitled to depose the trial judges in question. He does
not examine the particular arguments that he made to the
trial panel in support of his efforts to depose those trial
judges; he does not explain, in any concrete or focused way,
how the depositions of those judges would have been relevant
to the charges against him in this proceeding; and he makes
no effort to demonstrate that the denial of his requests was
an abuse of discretion. We find no error by the trial panel
chair in this regard.

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### D. Vindictive / Retaliatory Disciplinary Proceeding

In In re Paulson, 341 Or 542, 545, 145 P3d 171
(2006), cert den, 549 US 1304 (2007) (Paulson III), the
accused defended against the disciplinary complaint brought
against him, arguing, in part, that the disciplinary counsel
for the Bar had filed the complaint for vindictive and retalia-
tory motives. This court rejected his arguments, because the
accused had not substantiated his claim that the Bar had ini-
tiated the disciplinary proceeding for an impermissible rea-
son. Id.

In this proceeding, the accused attempted to make
the record that he failed to make in Paulson III. In particular,
the accused called the Bar's Disciplinary Counsel, Jeffrey
Sapiro, and its then-Executive Director, Karen Garst, as wit-
nesses. The accused also put in a range of documentary
exhibits, such as statistical studies of the Bar membership
examining the extent to which the general membership per-
ceives the disciplinary process as fair or biased (and if biased,
on what basis), and letters from other persons who had been
subject to the disciplinary process in the past and who
thought that their particular proceedings had not been fair.
In attempting to show that the disciplinary proceeding
against him was impermissibly motivated, the accused also
relied on the timing of earlier disciplinary proceedings
against him, which he asserted coincided with activities in
which he had engaged that had caused Sapiro and Garst to
be vindictive towards him.

The trial panel-which the accused does not chal-
lenge as biased in any way-took his claims seriously and
addressed them expressly. The trial panel accurately cap-
tured the essence of the theme that pervades the accused's
arguments in this case:

"These defenses are alleged in a manner suggesting a com-
mon theme-the Bar has treated the Accused differently
than other members of the Bar accused of wrongdoing and
has done so because the Accused objected to the manner in
which the Bar conducted its business; had objected to the
disciplinary process as part of a disciplinary system task
force some years ago; had been openly critical of Jeff Sapiro

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and his office; had raised issues of improper ex parte con-
duct about his case(s) between the Board of Governors and
the Supreme Court; and had complained about delay and
retaliation against him. In short, that the Accused's asser-
tion of his rights over the past several years has resulted in
such animosity towards him that the claims of misconduct
by the disciplinary counsel's office have been and are spu-
rious and raised solely to retaliate and silence the Accused."

The trial panel found no persuasive evidence that either
Sapiro or Garst had a vindictive or retaliatory motive in tak-
ing any action connected with the disciplinary proceedings
against the accused. To the contrary, the trial panel found
expressly:

"[T]he Accused examined both Karen Garst and Jeffrey
Sapiro. The Trial Panel listened to that testimony carefully.
The Accused argues the timing of all that has happened to
him is sufficient evidence of animosity. While there are
inferences that can be drawn in favor of the allegations of
the Accused, they do not arise to a level that satisfies the
Accused's burden of proof. While Sapiro admitted he was
not happy about the federal court civil suit the Accused filed
against him and other Bar leaders, there is no convincing
evidence the allegations raised in that case, the defenses
filed in Paulson II, or those in the case at bar have affected
his judgment. In short, the panel finds that the Accused has
taken the process very personally while Garst and Sapiro
have taken it professionally."

Later, in the discussion and conclusion section of the
trial panel's opinion, the trial panel further addressed the
accused's claim that the disciplinary proceedings against him
were impermissibly motivated:

"We have discussed [the accused's prosecutorial miscon-
duct defenses] above, and are unable to find prosecutorial
misconduct in this case. We carefully reviewed the docu-
ments in this case, including those offered by the Accused;
observed the demeanor and actions of disciplinary counsel
and trial counsel for the Bar; and observed the testimony of
both Karen Garst and Jeff Sapiro. While the Accused may
believe there was a vendetta against him by the Bar, it has
not been proven by any reasonable standard. It is true that
the Accused has leveled a long series of charges against the
Bar over a period of years and that those assertions have

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been emotional for all concerned. Throughout this time,
however, the panel must conclude officials of the Bar seem
to have acted properly. That said, the panel would feel dif-
ferently if the prior disciplinary cases against the Accused
(as well as the charges pending here) had been determined
to be without merit. Even at that, however, we are not cer-
tain that facts that might amount to a tort claim for mali-
cious prosecution are a viable defense in an unrelated dis-
ciplinary case."

The trial panel's rejection of the accused's claims of
vindictive and retaliatory "prosecution" turned significantly
on the panel's credibility assessments of both the accused and
the Bar staff. We appropriately defer to those assessments.
The accused's theory of vindictive and conspiratorial motiva-
tion for the proceedings against him collapses with the trial
panel's finding, which we make as well, that neither Sapiro
nor Garst took any action that led to the disciplinary proceed-
ings out of personal animus against the accused.22 In addi-
tion, as the trial panel observed, and as this opinion earlier
concludes based on our de novo review, the complaints
against the accused all have proved to be well-founded. Bar
staff would have been remiss in meeting their responsibili-
ties had they not investigated those complaints. Likewise,
they would have been remiss had they not pursued the addi-
tional disciplinary violations that they discovered in the
course of their investigations (viz., the violations related to
the accused's unauthorized practice of law when his suspen-
sion began). Having reviewed all the evidence that bears on
the accused's claim that the disciplinary proceedings against

22 Neither does the law bear out certain of the accused's claims. For example,
the accused appears to contend that Sapiro had a per se conflict of interest that
required Sapiro to have no contact at all with this disciplinary matter. The accused
so asserts because Sapiro was the defendant in a federal claim that the accused
filed against him. Relying on various cases from other jurisdictions, the accused
asserts that his action against Sapiro created a conflict of interest that precludes
any disciplinary proceeding from going forward as long as Sapiro holds a position
that entails general oversight of disciplinary investigations and complaints. Suffice
it to say that we have reviewed each of the cases that the accused cites; they are all
highly fact-bound and do not involve facts sufficiently analogous to those on which
the accused relies to merit further discussion. See, e.g., City of Mapel Heights v.
Redi Car Wash, 51 Ohio App 3d 60, 554 NE 2d 929 (1988) (detailing extensive evi-
dence of prosecutor's personal animosity against defendants in criminal case,
including lawsuit brought by prosecutor against defendants; trial court disquali-
fied prosecutor from handling criminal case against defendants).

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him had been brought for impermissible motives, we con-
clude that the evidence disproves the accused's defense.23
Consequently, just as the trial panel did not need to decide
when a claim of vindictive or retaliatory "prosecution" in a
disciplinary proceeding will provide a valid defense to proven
disciplinary violations, so, too, do we not need to decide that
question.

### E. Delay

The accused argues, as he has in past disciplinary
proceedings, that the trial panel's delay in issuing its opinion
deprived him of due process. In In re Paulson, 335 Or 436,
439, 71 P3d 60 (2003) (Paulson I), this court held that a dis-
ciplinary trial panel's failure to comply with the timelines
identified in the Bar rules for issuing opinions is not an auto-
matic ground for dismissal of the complaint against a lawyer
charged with misconduct. Rather, the accused must show
that the delay prejudiced his ability to receive a fair hearing.
As in Paulson I, the accused has not made-or attempted to
make, for that matter-the required showing. He is not enti-
tled to relief on that ground.

### F. Other Claims of Unconstitutionality

The accused, in scattershot fashion, makes a variety
of arguments in support of his position that the Oregon State
Bar disciplinary system deprives its membership in general
of equal protection, due process, and free speech. Many of
those arguments-and particularly the accused's argument
that the system is "rigged"-reiterate points that the accused
makes in support of his claim that the disciplinary proceed-
ings against him were motivated by vindictiveness or retali-
ation. We do not address those arguments separately; they
are answered by our disposition of his claim of vindictiveness

28 The accused attempts to take the trial panel to task for placing the burden on
him to prove what he presented as his "affirmative defenses." According to the
accused, his obligation was only to make out a "prima facie" case that Bar staff har-
bored impermissible motives in pursuing the disciplinary complaints at issue; the
burden of proof then shifted to the Bar to disprove his claim. We need not decide the
question of who has the burden of proof on an affirmative defense of this kind in a
disciplinary proceeding. The case comes to this court on a fully developed record.
The question for this court on de novo review, as it was for the panel at the conclu-
sion of the hearing, is what conclusions to draw from the sum of the evidence
adduced by both parties.

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and retaliation. We address only two remaining claims, nei-
ther of which merit extended discussion.

First, the accused asserts that the free speech rights
of lawyers charged with disciplinary rule violations are vio-
lated by Oregon State Bar Bylaw 18.103, which prevents a
lawyer who is subject to a formal disciplinary proceeding
from communicating with the Board of Governors and Bar
employees, agents, or representatives "regarding the mat-
ter." Once a formal disciplinary proceeding is underway, the
Bar effectively is "represented" in the matter by disciplinary
counsel. The lawyer who is the subject of the proceeding is
therefore limited to communicating "on the merits of the mat-
ter" with "Disciplinary Counsel's office and with appointed
counsel for the Bar[.]" The Bylaw thus effectively implements
RPC 4.2, which restricts lawyers from communicating on the
subject of the representation with a person that the lawyer
knows to be represented by a lawyer.

The accused's argument presents a facial challenge
to the validity of Bylaw 18.103 that has no bearing on any
issue in this case.24 The accused was not charged with violat-
ing Bylaw 18.103 or RPC 4.2. If he had been alleged to have
violated that rule, his argument might present a legitimate
defense. See generally State v. Spencer, 289 Or 225, 228, 611
P2d 1147 (1980) (law that facially violates the state consti-
tutional free speech protection is void and unenforceable,
regardless of whether particular conduct involved was itself
protected). But, as it stands, the accused's argument that
Bylaw 18.102 violates constitutional free speech guarantees
is purely collateral to the issues in this case. Whatever the
merits of the accused's argument, it provides no ground
on which the accused is entitled to avoid the consequences
of the particular disciplinary violations involved in this
proceeding.25

24 The accused has not made any form of an "as-applied" challenge in this case.
Thus, he has not claimed or identified any communication that he desired to direct
to the Board of Governors or other Bar officials, but was prevented from commu-
nicating. Neither has he attempted to demonstrate that any such restriction in this
case actually affected the fairness of this particular disciplinary proceeding.

25 Neither has the accused adequately developed his argument. He does not
ground his argument in either the state or federal constitutional free speech pro-
visions, and he does not identify how his free speech is meaningfully restricted if he
is required to communicate on a formal disciplinary matter to Bar officials and

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The second, and final, argument that we address is
the accused's claim that the disciplinary process violates due
process and equal protection because lawyers accused of rule
violations are not given adequate access to "voluntary" coun-
sel. The accused's argument in that regard is a particularly
narrow one. He does not assert a constitutional right to
appointed counsel. Nor could he; he has not claimed that he is
indigent, that he is similarly situated to others who receive
appointed counsel, or that our precedent establishing that
there is no general entitlement to appointed counsel in disci-
plinary proceedings is wrongly decided. See In re Harris, 334
Or 353, 363-64, 49 P3d 778 (2002) (federal due process prin-
ciples do not require appointment of counsel for an indigent
lawyer charged with violating disciplinary rules). The
accused relies instead on the fact that members of the Bar
volunteer to serve as Bar counsel in disciplinary matters
"free of charge." Therefore, according to the accused, the Bar
must provide the accused with access to volunteer counsel as
well.

Whatever its constitutional merits, the accused's
argument presents a nonissue. The accused's own question-
ing of Bar staff in this case established that, in fact, the Bar
annually solicits its membership and collects the names of
lawyers who will voluntarily represent accused lawyers in
disciplinary cases. When a formal complaint alleging a vio-
lation is filed against a lawyer, that lawyer is provided with a
list of those volunteers. The accused lawyer is then free to
contact a lawyer on that list in an effort to arrange for vol-
untary representation. In this case, the accused has not
claimed that a list of volunteer lawyers was not provided to
him. Neither has he claimed that he tried unsuccessfully
to avail himself of representation through that process.
His argument does not even acknowledge the existence of
that voluntary program. Given the record before us, and the
limitations of the argument that the accused has presented,
we conclude that his challenge on this ground is without
merit.

others through the lawyer that represents the Bar, rather than directly. Even if the
accused's argument were pertinent to some issue in this case-which it is not-it is
not sufficiently developed for us to consider it further.

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### V. SANCTION

Having found that the accused violated the discipli-
nary rules charged and having rejected the accused's "affir-
mative defenses," the court must determine the appropriate
sanction. The trial panel disbarred the accused. On review,
the accused does not challenge the trial panel's sanction. We
have nevertheless reviewed the trial panel's conclusions with
regard to the sanction and, as we explain below, we agree
that disbarment is appropriate in this case.

The purpose of lawyer discipline is not to punish a
lawyer that has failed to follow those rules. See In re Glass,
308 Or 297, 304, 779 P2d 612 (1989) (so observing under for-
mer disciplinary rules). Rather, the purpose is to "protect the
public and the administration of justice from lawyers who
have not discharged, will not discharge, or are unlikely to
properly discharge their professional duties to clients, the
public, the legal system, and the legal profession." American
Bar Association's Standards for Imposing Lawyer Sanctions
§ 1.1, 7 (1991) (amended 1992) (ABA Standards). In deter-
mining an appropriate sanction for a lawyer's violations of
the rules, we follow the analytical framework that this court
has set out in past cases. Under that framework, we deter-
mine an initial presumptive sanction based on (1) the ethical
duty violated; (2) the lawyer's mental state; and (3) the actual
or potential injury caused. See, e.g., In re Jaffee, 331 Or 398,
408, 15 P3d 533 (2000) (articulating methodology). We then
adjust that presumptive sanction based on a fourth factor --
the presence of aggravating or mitigating circumstances. Id.
at 408-09. Finally, we consider whether the sanction that we
arrive at through that analysis is consistent with Oregon
case law. Id. at 409.

#### A. Duty

The accused has violated multiple rules in this mat-
ter, several of them multiple times. The violations breached
the accused's duties to his clients, to the legal system, to the
profession, and to the public. See, e.g., In re Jaffee, 331 Or at
409 (conduct prejudicial to administration of justice violates
duties to public and to legal system, as well as to clients; pub-
lic has a right to expect lawyers to live up to the highest stan-
dards of honesty and integrity; dishonest conduct violates
duties to public); In re Stauffer, 327 Or 44, 66, 956 P2d 967

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(1998) (collection of excessive or improper fees violated duties
to the profession); In re Jones, 312 Or 611, 617, 825 P2d 1365
(1992) (failure to refrain from practice of law consistently
with disciplinary order violated duty owed to legal system;
failure to cooperate with Bar investigation violates duty to
legal profession).

#### B. Mental State

The ABA Standards recognize three mental states:
intent, knowledge, and negligence. A lawyer acts with
"intent" if he or she acts with "the conscious objective or pur-
pose to accomplish a particular result." ABA Standards at 7.
A lawyer acts with "knowledge" if he or she is "conscious[ly]
aware[ ] of the nature or attendant circumstances of the con-
duct," but does not have a "conscious objective or purpose to
accomplish a particular result." Id. "Negligence" is "the fail-
ure of a lawyer to heed a substantial risk that circumstances
exist or that a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would
exercise in the situation." Id.

Here, the trial panel expressly found that the
accused committed several of the violations intentionally.
With regard to other violations, the trial panel made findings
that lead to the same conclusion. Finally, for some violations,
the rule violated itself requires that an accused act at least
with knowledge, but the trial panel's findings suggest that
the accused in fact acted with intent.

Based on the trial panel's findings and our own
de novo review of the record, we find that the accused's con-
duct was intentional for many-and indeed most-of the vio-
lations. In particular, the trial panel expressly found that, in
the Brady-Aiello matter, the accused intentionally delayed
and protracted the resolution of the Brown estate matter.
The trial panel also found that the accused was intentionally
nonresponsive to many of the Bar's repeated investigatory
requests for information in that matter. We agree with both
findings. The trial panel made no express finding as to
whether the accused's excessive and illegal charges in that
matter were intentional. Implicit in the trial panel's discus-
sion is the suggestion that, at least as to some of the double-
billing and similar problems, the accused's conduct may have
been negligent only. In one regard, however, the trial panel's

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express findings support a conclusion that the accused's con-
duct was intentional. Specifically, the trial panel found that
the accused "ignored" his statutory obligation to seek court
approval before collecting a $14,000 fee for his services as
personal representative. The record amply supports that
finding. We therefore find that, with regard to his collection
of the $14,000 fee, the accused acted intentionally. See In re
Knappenberger, 344 Or at 573 (similarly finding that, when
accused charged a fee for a Social Security claim without fol-
lowing the approval procedures that he knew first must be
followed, the accused's conduct was intentional).

With regard to the other matters that led to
the proceeding against the accused (Rubeo, Hernandez,
Schauermann, Montalbano, and OSB matters), the trial
panel noted that they generally involved "actions (or lack of
action) taken by the Accused as his suspension [in Paulson II]
loomed." As to those actions and inactions, in all but the
Rubeo matter, the panel found that the accused's conduct
was not only intentional, but reflected a deliberate disregard
for the accused's duties. The trial panel explained:

"While the facts of the Brady-Aiello matter are significant
and the Accused should have responded more thoroughly
and expeditiously in Rubeo, neither rise to the level of dis-
barment in the eyes of the panel. It is the actions of the
Accused after his suspension in Paulson II that amount to
thumbing his nose at virtually all things important to the
profession-the courts, the clients, and the justice system
itself-that support our decision [to disbar]."

The trial panel then discussed specific actions and inactions
involved in those other matters and the accused's mental
state at the time. The trial panel specifically found that, in fil-
ing the several motions for postponement and abatement on
the first day of his suspension, the accused's conduct was
deliberate, was intended to delay those proceedings, and was
done for selfish motives:

"The motions [for postponement and abatement] that
were filed on October 15, 2006 are essentially identical.
They are designed to take each case off the docket so the

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Accused can get through his suspension and take the cases
up again. The Loucks matter is the most egregious. We con-
clude the Accused drafted each document for a selfish pur-
pose and with an eye for delay. We find the Accused
engaged in this pattern of conduct deliberately with the
intent to accomplish a specific result."

The trial panel did not address specifically the accused's fail-
ure to withdraw from representing his clients or to take steps
to protect his clients' interests (such as by transferring the
cases to new counsel). But, implicit in the above quote from
the trial panel's opinion is its assessment that, in those
regards as well, the accused's conduct was deliberate and
motivated by selfish concerns rather than by his clients'
interests. We agree and so find.

Finally, the trial panel considered the accused's
mental state in failing to cooperate with the Bar's investiga-
tion in the Hernandez, Schauermann, Montalbano, and OSB
matters. The trial panel found:

"The record reveals that the Accused deliberately ignored
[the Bar's] requests for information until he could ignore
them no further. The responses he provided were late; they
were evasive and ambiguous; they were often non-responsive
and non-substantive. We can conclude only that the
Accused made a deliberate decision to respond to the Bar in
a manner he knew to be contrary to the rules of professional
conduct. After all, the matters at issue here are not the first
disciplinary proceedings to which the Accused has been a
party. He offered absolutely no reason or evidence as to why
he could not or did not respond to the Bar's inquiries as
requested. He was playing the system; for what benefit, the
panel can only speculate."

We concur in all regards in the trial panel's assess-
ment of the accused's mental state at the time he engaged in
the violations at issue.

#### C. Injury

As to injury, the trial panel concluded that the
accused's violations inflicted both actual and potential injury

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to the accused's clients, to the legal system, and to the profes-
sion. The trial panel did not elaborate in the part of its opin-
ion discussing the appropriate sanction. Earlier in its opin-
ion, it had detailed those injuries in its findings and
conclusions.

The Brady-Aiellos were required to wait unnecessar-
ily for years before the Brown estate was settled and distrib-
uted. They incurred substantial attorney fees to obtain assets
that should have been distributed to them "without fanfare."
The state likewise incurred actual injury in the form of
unnecessary litigation and costs. The court system, too,
devoted resources unnecessarily due to the accused's conduct
in delaying and protracting the small estate matter. The
accused charged and collected (although he eventually had to
repay) an illegal and excessive fee. We conclude that, as to
the Brady-Aiello matter and the violations in those regards,
the injuries that the accused caused to the Brady-Aiellos and
to the legal system were actual and serious.

The accused's unlawful practice of law and failure to
withdraw in the Hernandez, Schauermann, Montalbano, and
OSB matters inflicted both actual and potential injuries to
his clients. There were actual injuries in all cases, in that the
accused's self-interested motions to postpone and abate the
cases caused delays in all of the matters that likely would not
have occurred had the accused withdrawn from representa-
tion earlier and assisted in transferring the cases to other
attorneys. The potential injuries that could have come to pass
in these matters were even more serious. The accused's con-
duct had the potential to leave his clients high and dry in
such a way as to seriously prejudice the merits of their cases.
There also is potential serious injury to the legal system, the
profession, and to the public when, as here, a lawyer
(1) engages in the unauthorized practice of law; (2) is unwill-
ing to comply with a court-ordered suspension; (3) makes
deliberate misrepresentations to a tribunal to delay cases for
selfish motives; and (4) engages in dishonesty or misrepre-
sentations that reflect adversely on the lawyer's fitness to
practice law.

In the Loucks child custody matter, the trial panel
found that the accused's conduct caused actual and serious

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injury to his client. The matter involved significant interests
(a parent's custodial rights and allegations that the child was
being abused). The client, without notice from the accused,
was required to scramble on the eve of trial to obtain new rep-
resentation. The resolution of that child custody matter was
delayed as a result, when it otherwise could have gone to trial
as scheduled. The accused's client in that case did not testify;
only the opposing lawyer in the matter did so. But from that
lawyer's description of the circumstances, the trial panel con-
cluded that the client suffered additional actual injury in the
form of "significant anguish and uncertainty" as a result of
the accused's conduct. See In re Jones, 312 Or at 618 (client
anxiety and aggravation is actual injury); In re Arbuckle, 308
Or 135, 140, 775 P2d 832 (1989) (same). We agree with the
trial panel that, in the Loucks child custody matter, the inju-
ries to the client were both actual and serious.

Finally, the trial panel specifically found that the
accused's failure to cooperate with the Bar's investigation of
the complaints in these several matters resulted in actual
injury to the Bar and the legal system generally in the form of
"significant cost." See also In re Haws, 310 Or at 751 (describ-
ing actual injury caused by noncooperation generally with
Bar investigations). We conclude, in addition, that a lawyer's
failure to cooperate with the Bar's investigatory efforts, when
that failure is persistent and intentional, as it was in these
matters, poses potential serious injury to the profession and
to the public as well. As we earlier observed, the lawyer dis-
ciplinary system is not punitive; it is protective. When a law-
yer intentionally evades the procedures by which the Bar can
determine if the lawyer is one who has not discharged, will
not discharge, or is unlikely to properly discharge his or her
professional duties, the interests of clients, the public, the
legal system, and the legal profession not only may be poten-
tially injured, but they potentially may be seriously injured.

#### D. Preliminary Sanction

The trial panel determined that the preliminary
sanction was disbarment because the accused had violated
several duties in an intentional or knowing manner. The

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ABA Standards provide that disbarment is generally appro-
priate in each of several circumstances presented by this
case.

Under ABA Standard 8.1(a), disbarment is generally
appropriate when a lawyer "intentionally or knowingly vio-
lates the terms of a prior disciplinary order and such viola-
tion causes injury or potential injury to a client * * *. " Here,
as we have found, the accused did not withdraw from repre-
senting several clients and took few or no steps to aid them in
transferring their cases to other lawyers in advance of his
suspension. The accused also practiced law while suspended.
His misconduct caused both actual and potential injury to his
clients, and, in the Loucks child custody case, the actual
injury was serious.

Under ABA Standard 4.41(b), disbarment is gener-
ally appropriate when a lawyer "knowingly fails to perform
services for a client and causes serious or potentially serious
injury to a client[.]" The accused's conduct in the Bradly-
Aiello matter and the Loucks child custody matter caused
serious actual injury in those cases. In the other matters
involved in this case, the accused's conduct caused potential
serious injury to his clients.

Under ABA Standard 6.11, disbarment is generally
appropriate "when a lawyer, with the intent to deceive the
court, makes a false statement * * * or improperly withholds
material information, and causes serious or potentially seri-
ous injury to a client or party[.]" The accused intentionally
made false statements in his motions to postpone and abate
in an effort to deceive the courts about his suspended status.
In the Loucks child custody matter in particular, the client
was seriously injured.

Under ABA Standard 7.1, disbarment is generally
appropriate when a lawyer "knowingly engages in conduct
that is a violation of a duty owed to the profession with the
intent to obtain a benefit for the lawyer" if that conduct
"causes serious or potentially serious injury to a client, the
public, or the legal system." Here, the accused systematically
and intentionally failed to cooperate with the Bar's investi-
gation of complaints against him despite a clear duty to do so.

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The accused's conduct resulted in potentially serious injury
to his clients, the public, and the legal system.

The evidence supports the trial panel's preliminary
sanction.

#### E. Aggravation and Mitigation

As we earlier described, the next step in determining
the appropriate sanction is to consider aggravating and mit-
igating factors. With regard to relevant aggravating factors,
the trial panel found:

"Disciplinary History. The Accused has a history of
disciplinary offenses. In [Paulson I, 335 Or 436], he was
reprimand[ed] in a dispute over fees. He was found to have
engage[d] in conduct prejudicial to the administration of
justice in [Paulson II, 341 Or 13]. He was suspended for an
additional four months in [Paulson III, 341 Or 542], for vio-
lation of DR 1-103(C) [failure to cooperate in a disciplinary
investigation], DR 4-101(B)(1) and (2) [knowingly revealing
the secret/confidence of a client and using a confidence or
secret to the disadvantage of a client]; and DR 7-104(A)(I)
[communication with a represented party]. A number of the
rules at issue in this prior discipline are at issue again in
the matters now before this panel. Moreover, it appears
that at least two of the prior cases seemed to be at various
stages of the disciplinary process at the time the current
matters arose. The panel views the prior disciplinary his-
tory and the timing of that history juxtaposed to the present
matters as quite significant. [See ABA Standards] at
9.22(a).

"Selfish Motives. In the case at bar, we have found
that the Accused acted with dishonest and/or selfish
motives. We focus on a selfish motive here. In Brady-Aiello,
the Accused churned the file to increase his fees. The
motions filed after the date of suspension in Paulson II
seem designed to allow the Accused the opportunity to take
the cases over after his suspension. He repeatedly failed to
cooperate with the Bar's investigations in an effort to either
avoid or delay facing the consequences of his misconduct.
The Accused repeatedly became so entrenched in his own
battles, he lost focus of the need to actually assist his cli-
ents. [See ABA Standards] at 9.22(b).

"Multiple offenses. [See ABA Standards] at 9.22(d).

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"Refusal to acknowledge the wrongful nature of his con-
duct. [See ABA Standards] at 9.22(g).

"Substantial experience in the practice of law. [See ABA
Standards] at 9.22(i).

"Bad faith obstruction of the disciplinary proceeding.
See [ABA Standards] at 9.22(e)."

Next, the trial panel concluded that the only poten-
tial mitigating factor that applied was the delay in the disci-
plinary process in these matters. See Paulson II, 341 Or at
32-33 (delay in investigating and filing formal disciplinary
complaint can be mitigating factor in determining sanction);
see also ABA Standards 9.32(i) (listing "delay in disciplinary
proceedings" as possible factor in mitigation). The trial panel
declined to give that factor weight, however, because it found
that the accused "himself was a significant contributing fac-
tor to the delay in this case."

We agree with the trial panel's assessment of the rel-
evant aggravating factors in this case. We likewise concur
that the only potential mitigating factor-delay-is not such
a factor here, because of the accused's role in contributing to
the delay.

#### F. Oregon Case Law

The trial panel examined prior Oregon disciplinary
cases involving similar misconduct on a lawyer's part to
determine if disbarment in this matter would be consistent
with that case law. The trial panel determined that the cases
were of limited help-both cases resulting in disbarment and
those resulting in suspension-because most involved viola-
tions arising out of a single matter, rather than multiple
causes of complaint in multiple matters that suggested "a
pattern of problematic behavior." And none of the cases that
the trial panel reviewed involved such a "complete lack of
regard for the orders of the Oregon Supreme Court-indeed
disdain for the rules of the court and the Bar[.]" Finding no
case law to the contrary, the trial panel concluded that dis-
barment, given the accused's pattern of behavior and his
mental state, was appropriate.

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As we have noted in the past, case-matching in the
context of disciplinary proceedings "is an inexact science." In
re Stauffer, 327 Or at 70. That is especially so for cases
involving multiple violations in multiple matters, because in
many such proceedings the accused declines to contest the
charges or the sanction. This court has often ordered disbar-
ment without any extensive discussion of the conduct justi-
fying it, even in past years when review was automatic.26
Still, we think that this court's past cases do provide some
guidance and that they demonstrate the appropriateness of
disbarment in this instance.

Some of the accused's violations, had they occurred
in a single matter, or had they been singular violations, likely
would have justified a long suspension in and of themselves.
In past cases, this court has imposed suspensions of any-
where from one to many years for violations in a single mat-
ter that were analogous to any of several of those arising out
of the multiple matters involved in this case. For example,
this court has emphasized that knowingly or intentionally
making false statements under oath is "among the most seri-
ous acts of misconduct that a lawyer can commit." In re
Dugger, 334 Or 602, 626, 54 P3d 595 (2002). We therefore
have ordered long suspensions, in the absence of significant
mitigating circumstances, for false representations, know-
ingly made under oath or affirmation, like those that the
accused made in his motions seeking postponement and
abatement.27 Likewise, we have ordered long suspensions for

26 See, e.g., In re Cue, 336 Or 281, 82 P3d 708 (2003) (no appearance by
accused); In re Barrett, 332 Or 422, 29 P3d 1137 (2001) (accused appeared); In re
Taub, 326 Or 325, 327, 951 P2d 720 (1998) (accused admitted facts that formed
basis of multiple violations but asserted that mental condition had prevented form-
ing the requisite mental state).

27 See, e.g., In re Davenport, 334 Or 298, 49 P3d 91, modified on recons, 335 Or
67, 57 P3d 897 (2002) (two-year suspension based on several sworn misrepresen-
tations made in connection with a single matter); In re Staar, 324 Or 283, 924 P2d
308 (1996) (two-year suspension for making knowingly false statements in a sup-
port of a petition for a restraining order); In re Wyllie, 327 Or 175, 957 P2d 1222
(1998) (two-year suspension for false statement regarding compliance on MCLE
report). We have declined to suspend based on such conduct, however, where the
resulting harm was "trivial" in nature. See In re Kumley, 335 Or 639, 75 P3d 432
(2003) (accused's misconduct in describing himself as an "attorney" in forms that
he submitted to two state agencies in connection with candidacy for elected office

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intentional conduct in protracting legal proceedings unnec-
essarily or vexatiously and for charging an excessive or
unlawful fee in a single matter.28 On the other hand, we have
ordered disbarment for conduct that otherwise would justify
a long suspension when the accused has a history of miscon-
duct that has resulted in prior disciplinary sanctions. See In
re Miller, 310 Or 731, 801 P2d 814 (1990) (lawyer kept estate
open for six years, misrepresented status of estate to court,
and collected an excessive fee; conduct warranted disbar-
ment given accused's history of serious misconduct in two
prior cases).

This case distinguishes itself from those in which we
have ordered long suspensions because of the multiple differ-
ent matters in which the accused committed the violations.
In addition, the accused has a history of past violations. We
agree with the trial panel that, in combination, the accused's
current and past conduct demonstrate a persistent disregard
for the rules of professional conduct and the duties that the
accused owes to his clients, the public, the legal profession,
and the legal system.

That disregard is particularly evidenced by the
accused's intentional practice of law despite this court's order
of suspension. The accused's conduct in that regard might,
without more, justify his disbarment. In In re Devers, 328 Or
230, 974 P2d 191 (1999), among other conduct involving the
practice of law, the accused lawyer continued to represent a
client in settlement negotiations despite his suspension; the
accused lawyer did so because the client, who knew of the
suspension, asked the lawyer to continue in the matter.
This court determined that disbarment was "clearly" an
appropriate presumptive sanction for the accused's conduct.
Id. at 243. The court further concluded that there were both
aggravating factors (prior disciplinary record; a pattern of

warranted reprimand, and not suspension). As we already have concluded, the
harm caused by the accused's false representations in this case was not trivial.

28 See, e.g., In re Altstatt, 321 Or 324, 897 P2d 1164 (1995), cert den, 517 US
1129 (1996) (one-year suspension for lawyer who, in representing an estate in a sin-
gle matter, obtained fees without court approval and let his self-interest affect his
professional judgment); In re White, 311 Or 573, 815 P2d 1257 (1991) (three-year
suspension for lawyer who used litigation in a single matter as a tool to harass,
rather than to resolve client's dispute, and made knowingly false statements in
course of litigation).

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misconduct involving same violations; multiple offenses;
refusal to acknowledge wrongful nature of conduct; and sub-
stantial experience in the practice of law) and mitigating fac-
tors (personal problems; cooperation with disciplinary pro-
ceedings; good reputation). Id. at 243-44. The court
ultimately determined, however, that the mitigating factors
were not of sufficient weight to reduce the sanction; the court
ordered disbarment as a sanction. Id. at 245.

Here, there are no mitigating factors. There are only
significant aggravating factors. Any one of several violations
that the accused committed in the various matters involved
here, were it a single violation with those aggravating fac-
tors, could justify a long suspension. And the accused's unau-
thorized practice of law alone is enough to justify disbarment.
Considering the violations in combination, however, and in
the context of the several aggravating factors present in this
case, disbarment is well-warranted under Oregon case law.

### VI. CONCLUSION

Having found, as did the trial panel, that the
accused violated DR 1-102(A)(4), DR 2-106(A), RPC
1.16(a)(1) and (d), RPC 3.3(a)(1), RPC 5.5, RPC 8.1(a)(2), and
RPC 8.4(a)(3) and (4); having considered the relevant ABA
Standards; and having evaluated the applicable Oregon case
law, we determine that the appropriate sanction for the
accused's violations in this matter is disbarment.

The accused is disbarred, commencing 60 days from
the date of the filing of this decision.