Filed: October 11, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

In re The Reciprocal Discipline of EVERETT WALTON,
Accused.

(OSB 12

- 70; SC S060606)

En Banc

On a BR 3.5 n otice of discipline in another jurisdiction and recommendation filed August 6, 2012.
Linn D. Davis, Assistant Disciplinary Counsel, Oregon State Bar
, filed the notice of discipline in another jurisdiction and recommendation and reply.

Everett Walton, pro se , Hi lo , Hawaii
, filed the answer to B R 3.5 notice of discipline in another jurisdiction and recommendation.

PER CURIAM
The accused is publicly reprimanded.1 PER CURIAM 1
This is a reciprocal discipline proceeding pursuant to Oregon State Bar 2
Rule of Procedure (BR) 3.5. The accused is licensed to practice law in Oregon and in the 3

State of Hawai'i

. For approximately 14 months, the accused improperly used a Westlaw 4
account password that belonged to the Republic of Palau, in violation of the Hawai'i 5

Rule s of Professional Conduct (HRPC). The accused entered into a stipulation fo r 6
discipline with the Hawai'i Office of Disciplinary Counsel . Based on that stipulation, the 7
Disciplinary Board of the Hawai'i Supreme Court imposed a public reprimand

. 8
In March 2012, Hawai'i's Disciplinary Counsel provided the order and 9
stipulation t o the Oregon State Bar, which, in turn, invited the accused to respond and 10
provide any additional information that he wished this court to consider in deciding 11
reciprocal discipline. The accused submitted a reply and several exhibits . In August 12

2012, t he B ar notified this court, under BR 3.5(a), 1 that Hawai'i had disciplined the 13
accused, and it recommended that the accused be suspended from the practice of law in 14

1 BR 3.5(a) provides:

"Disciplinary Counsel, after reporting on the matter to the [State Performance and Responsibility Board ( ] SPRB [ )], shall promptly notify the court after receiving notice that an attorney has been disciplined for misconduct in another jurisdiction. Disciplinary Counsel shall fi le a copy of the judgment, order or determination of discipline with the court, with written notice to the attorney. * * * The judgment or order or determination of discipline shall be accompanied by a recommendation of the SPRB as to the imposition of di scipline in Oregon based on the discipline in the jurisdiction whose action is reported to the court, and such other information as the Bar deems appropriate to file with the court."2

Oregon for six months. For the reaso ns stated below, we reject the B ar's 1

recommendation and, instead, publicly reprimand the accused. 2
In a reciprocal discipline proceeding, the order of discipline from another 3
jurisdiction is sufficient evidence that the accused lawyer committed the misconduct 4

described therein. BR 3.5(b) (so stating)

. W het her this court should impose discipline 5
turns on two questions: 6
"(1) Was the procedure in the jurisdiction which disciplined the 7 attorney lacking in notice or opportunity to be heard? 8
"(2) Should the attorney be disciplined by the court?" 9
BR 3.5(c). In this case, the accused does not dispute that the Hawai'i disciplinary 10
proceeding provided him with notice and an opportunity to be heard, or that this court 11
should discipline him for his misconduct in Hawai'i. Rather, he contends only that the 12
appropriate sanction for his misconduct is a private reprimand. T his court has rejected 13
the practice of imposing a private reprimand, as distinguished from a public reprimand. 14

See In re Zumwalt , 296 Or 631, 634 n 5, 678 P2d 1207 (1984) (so holding). If the court 15
imposes a reprimand, it is public. Id. ; BR 6.1(a)(ii). 16

T his court determines whether it should discipline an accused lawyer and in 17
what manner after reviewing the judgment from the other state and the parties' 18

submissions. BR 3.5(e) ; 2 In re Coggins , 338 Or 480, 483, 11 P3d 1119 (2005). We 19

2 BR 3.5(e) provides , in part :

"Upon review of the judgment, order or determination of discipline and the response and answer filed by the attorney and the Bar, and after oral3

therefore take the following facts from the Hawai'i s tipulation for d iscipline and the 1
accused's response s to the Bar and this cou rt

. 2
The accused has been practicing law since 1977. In early 2001, the accused 3
was appointed Special Prosecutor for the Republic of Palau Office of the Special 4

Prosecutor (OSP) . In March 2007, while still holding th at position
, the accused entered 5

in to a three

- year contract on OSP's behalf with Thomson Reuters Corporation for I nternet 6
legal research services, known as Westlaw. Under that contract, OSP agreed to pay a flat 7
rate of about $1, 170 per month for unlimited access to Westlaw until May 31, 20 10 . The 8
contract included the following provision: 9
"In the event Subscriber requests a Minimum Term in excess of one year as 10 set forth in the Order Form, this Agreement may not be terminated prior to 11 the expiration of such minimum term." 12

The accuse d rec eived two passwords that gave him access to OSP's Westlaw account. 13
In March 2008, the accused resigned from his employment as special 14
prosecutor for OSP. Before leaving that position, and knowing that, under the Republic 15
of Palau's hiring system, the position would remain unfilled for at least nine months, the 16

accused contacted Thomson Reuters in an effort to c ancel the Westlaw contract. A 17

Thomson Reuters representative informed the accused that th e company would not agree 18

to terminate the contract fo r any reason before the May 2010 expiration date
, whether or 19

argument if ordered by the court, the court shall determine whether the

attorney should be disciplined in Oregon for misconduct in another jurisdictio n and if so, in what manner."4

not the account was used, because the monthly charges for the three

- year contract were 1
substantially discounted from the cost of a one

- year contract. 2

The accused left Palau, returned to Hawai'i, and began work as the 3
managing attorney for the Hilo office of the Legal Aid Society of Hawai'i. The accused 4

continued t o use OSP 's Westlaw password while representing indigent clients in that 5

office. He did not seek authorization from OSP or th e Republic of Palau to do so. 6
During that time, OSP continued to receive monthly statements from Thomson Reuters
, 7

which detailed the accused's monthly usage of the Westlaw account. OSP forwarded 8

those statements to the Director of the Bureau of National Treasury of the Ministry of 9

Fin ance of the Republic of Palau, which, in turn, paid them. 10
In February 2009, the Republic of Palau named a new special prosecutor. 11
In April 2009, the new special prosecutor attempted to cancel the Westlaw contract. 12

Thoms on Retuers denied the request to terminate the contract. 3 In May 2009, a secretary 13
in the special prosecutor's office informed the accused by e

- mail that the new special 14
prosecutor was considering filing civil and criminal charges, as well as a B ar compla int, 15
against the accused for his unauthorized use of OSP's Westlaw account. The accused 16
immediately stopped using the account. 17
In July 2009, the new special prosecutor filed a complaint with the Hawai'i 18
Office of Disciplinary Counsel, alleging that , w ithout any authorization to do so, the 19

3 The new special prosecutor stopped paying the West law bills, and Thomson Reuters ultimately terminated the contract for nonpayment in August 2009.5

accused illegally had accessed and used OSP's Westlaw account for his personal use after 1

he had left the position of s pecial p rosecutor. The complaint further alleged that the 2

accused's conduct had caused the Republi c of Palau more than $20,000 in economic 3
damages and that the value of the Westlaw services that the accused had used aft er he left 4

OSP was more than $45,000 ( based on per search and not flat rate charges ) . The 5
complaint also alleged that the accused had refused to pay for or reimburse the Republic 6
of Palau for any p a rt of the Westlaw services that he had used. Finally, the complaint 7
alleged that the accused's conduct violated HRPC 8.4(c) ( professional misconduct for 8
lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) 9

and that that violation, in turn, amounted to a violation of HRPC 8.4(a) ( professional 10
misconduct for lawyer to violate or attempt to violate rules of professional conduct). 11
The accused responded that he did not use the Westlaw account for his 12
personal use, but only to perform legal research in service to the indigent clients of the 13
Legal Aid Society of Hawai'i; that his use of the Westlaw account did not cost the 14
Republic of Palau any money whatsoever, in light of the fact that the account could not 15
be cancelled and the monthly fee was due and payable whether or not the accou nt was 16

used ; that the accused had no intent to deprive the Republic of Palau of anything of value; 17
and that the Republic of Palau imp licitly had consented to his use of the Westlaw account 18
by continuing to pa y the monthly Westlaw invoices, which detailed the monthly usage on 19

the account at a time when n o lawyer was working in OSP as special p rosecutor. In 20
addition, the accused pointed out that he had had no disciplinary record at all in more 21

than 3 5 years as a lawyer and that he had freely a dmitted his usage of the Westlaw 226

account

. 1
In November 2011, the accused signed a stipulation for discipline with the 2

Hawai'i Disciplinary Counsel
, in which he agreed that, by accessing and using OSP's 3

Westlaw account for 14 months after he had resigned from OSP, and by refusing to pay 4
or reimburse OSP or the Republic of Palau for any p a rt of the Westlaw services that he 5

had used, the accused violat ed HRPC 8.4(c) and HRPC 8.4(a) . The accused stipulated 6
that his substantial experience in the practice of law was an aggravating factor and that 7
his lack of a disciplinary record and his willingness to accept responsibility for his 8
improper use of Westlaw services were mitigating factors . Finally, the accused and the 9
Hawai'i Disciplinary Counsel agreed that a private reprimand was an appropriate 10

sanction. As noted, the Hawai'i Supreme Court's Disciplinary Board accepted the 11
stipulation but rejected the p arties' recommendation for discipline, determining instead 12
that a public reprimand was the appropriate sanction for the accused's misconduct. 13
Notwithstanding Hawai'i's imposition of a public reprimand on the accused 14

for his misconduct, the B ar now urge s us to suspend the accused from the practice of law 15
in Oregon for six months. The B ar contends that, in logging into a research service 16
without permission or authority, using passwords provided to his former employer, and 17
using research services paid for by his former employer and without paying the provider 18
for those services, the accused engaged in conduct involving dishonesty that reflected 19
adversely on his fitness to practice law, in violation of Oregon Rule of Professional 20

Conduct (RPC) 8 .4(a)(3) . T hat rule provides, 21

"It is professi onal misconduct for a lawyer to * * * engage in 227

conduct involving dishonesty, fraud, deceit or m isrepresentation that 1 reflects adversely on the l awyer's fitness to practice law [

. ] " 2
In addition, although the B ar acknowledges that the accused did not 3
stipulate that his conduct constituted a crime in Hawai'i, th e B ar contends that the 4
stipulated facts detailing the ac cused's unauthorized use of OSP's Westlaw account are 5

sufficient to establish that the accused co mmitted a criminal act under Hawai'i's criminal 6

code

. T he B ar does not specifically identify which provision or provisions of the Hawai'i 7

Revised Statutes that the accused's conduct violated
, but it suggests several that might 8
apply 4 and argues that the a ccused therefore violated Oregon RPC 8.4(a)(2). That rule 9
prohibits a lawyer from "commit[ting] a criminal act that reflects adversely on the 10
lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]" 11
Finally, the B ar also contends that the accused's violations of Oregon's 12

Rules of Professional C onduct themselves constitute a violation of RPC 8.4(a)(1), which 13
prohibits a lawyer from violating the rules of professional conduct by his own actions or 14
through the acts of others: 15

"It i s professional misconduct for a lawyer to: 16
"(1) violate the Rules of Professional Conduct, knowingly assist or 17

4 The Bar suggests that the accused's conduct amounted to a violation of one or more of the following statutes: Hawai'i Revised Statute (HRS) 708

- 833(1) (misdemeanor theft in the fourth degree

-- theft of property or services of any value not exceeding $100); HRS 708

- 832 (misdemeanor theft in the third degree

-- theft of p roperty or services of any value exceeding $100) ; HRS 708

- 831(b) (felony theft in the second degree

-- theft of property or services exceeding $300); HRS 708

- 895.6 (felony unauthorized computer access in the second degree); or HRS 708

- 895.7 (misdemeanor

un authorized computer access in the third degree).8

induce another to do so, or do so through the acts of another[.] " 1
We accept the accused's stipulation and the Hawai'i Disciplinary Board's 2

co nclusion that , in using OSP's Westlaw password for I nternet research without 3

authorization to do so, the accused engaged in conduct involving dishonesty . We find 4

that that conduct violated RPC 8.4(a)(3) and that that violation, in turn, constitutes a 5

viol ation of RPC 8.4(a)(1)

. However, we reject the B ar's additional claim that the 6

accused violated RPC 8.4(a)(2) by committing a criminal act. The B ar has the burden of 7
establishing misconduct by clear and convin cing evidence, BR 5.2, and the B ar has not 8

met that burden in this case. The S tate of Hawai'i did not prosecute the accused for any 9

crime . That alone is not dispositive, 5 but t he B ar has not offered any legal analysis of the 10
Hawai'i criminal code provisions that it cites , and it is not clear to us that the accused's 11
misconduct squarely fits within the proscriptions of those laws. 12

We turn , then, to the question of the appropriate sanction for the accused's 13

violation of RPC 8.4 (a) (3) and RPC 8.4(a)(1)

. As this court stated in In re Lopez , 350 Or 14

192 , 198, 252 P3d 312 (2011), i n reciprocal discipline cases , the court has an independent 15

5 In In re Kimmell , 332 O r 480, 485, 31 P3d 414 (2001), this court, considering the predecessor rules to RPC 8.4(a)(2) and (3), held : "Proof of conviction is not required to find a violation of DR 1

- 102(A)(3) or ORS 9.527(1). Similarly, although DR 1

- 102(A)(2) requires the court to examine an alleged 'criminal act,' this court has held that proof that an accused lawyer was convicted f or such an act is not required to find a violation of DR 1

- 102(A)(2)."9

obligation to determine the sanction merited by a lawyer's violation of this state's 1
prof essional rules. And, although this court often has concluded that the sanction that 2
another jurisdiction has imposed is sufficient to vindicate Oregon's interests, we are free 3
to impose a different sanction if that is appropriate. Id. In determining the appropriate 4

sanction, we consider both the American Bar Association's Standards for Imposing 5

Lawyer Sanctions (1991) (Amended 2005) (ABA Standards) and this court's cases. See 6

Lopez , 350 Or at 198 (so noting). 7

The ABA Standards direct courts to exa mine four factors in determining 8
the appropriate sanction for a lawyer's professional misconduct: (1) the ethical duty 9
violated, (2) the lawyer's mental state, (3) the actual or potential injury caused by the 10
lawyer's misconduct, and (4) the existence of aggravating or mitigating circumstances. 11

ABA Standard 3.0. We examine those factors in turn. 12

1. Duty Violated 13
By engaging in conduct involving dishonesty, the accused violated his duty 14
to the public to maintain his personal integrity. ABA Standard 5.1. 15

2. Mental State 16
The ABA Standards provide that a lawyer acts with "intent" if it is the 17
lawyer's "conscious objective or purpose to accomplish a particular result." ABA 18

Standards at 7. A lawyer acts with "knowledge" if the lawyer acts with "the conscious 19

awareness of the nature or attendant circumstances of the conduct but without the 20
conscious objective or purpose to accomplish a particular result." Id

. 21

The stipulation of disciplin e between the accused and the Hawai'i 2210

Disciplinary Counsel does not recite any particular mental state . However, t his court 1
may infer from the facts set out in the stipulation that t he accused used the OSP Westlaw 2
password with the conscious objective to accomplish a particular result

-- to perform 3

Westlaw research on OSP's account without pay ing for the service

. We therefore find 4

that the accused acted intentionally. 5

3. Actual or Potential Injury 6

The B ar asserts that the accused's misconduct caused pote ntial injury to 7

OSP and actual injury to Thomson Reuters . The B ar does not explain how the accused's 8
Westlaw use caused OSP potential injury, and we can see none. As we have discussed, 9
OSP was required to pay Thomson Reuters the same flat monthly fee whether or not its 10
Westlaw account was used. The accused's use of OSP's Westlaw password did not result 11
in any additional charges to OSP or the Republic of Palau, and the record does not 12
establish that there was potential for an y other injury. 6 13

The B ar's argument that the accused's conduct caused actual i njury to 14

Thomson Reuters is based on the theory that Thomson Reuters would have charged the 15
accused for his Westlaw use if he had not dishonestly used OSP's account. However
, 16

there is no evidence in the record that the accused would have used Westlaw at all if he 17

6 We think it worth noting that the Republic of Palau did not appear to have considered itself to have been actually or potentially injured by the accused's conduct, insofar as, du ring the pendency of the Hawai'i disciplinary proceeding, the President of Palau personally requested that the accused reapply for the job of s pecial p rosecutor after the special p rosecutor who replaced the accused at OSP was forced to resign from that position.11

had not had OSP's Westlaw password. Moreover, and more importantly, t he accused 1
used OSP's password to access Westlaw

. Thomson Reuters , then, was paid for the 2

accu sed's use of the Westlaw services

- - the Republic of Palau paid for the accused's 3

usage

. OSP was the only arguable victim of the accused's misconduct, and, as we have 4
stated, OSP did not suffer any actual or potential harm. 5

4. Preliminary Sanction 6

Ha ving considered the duty violated, the accused's mental state, and the 7
actual and potential injury caused by the accused's misconduct, we look to the ABA 8

Standards for guidance in determining an appropriate sanction for conduct involving 9
dishonesty, frau d, deceit, or misrepresentation. ABA Standard 5.1 provide s , in part : 10
"Absent aggravating or mitigating circumstances, upon application 11 of the factors set out in Standard 3.0, the following sanctions are generally 12 appropriate in cases involving commission of a criminal act that reflects 13 adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in 14 other respects, or in cases with conduct involving dishonesty, fraud, deceit, 15 or misrepresentation: 16

" 5.11 Disbarment is generally appropriate w hen: 17
"(a) a lawyer engages in serious criminal conduct [
, ] a necessary 18 element of which includes intentional interference with the administration 19 of justice, false swearing, misrepresentation, fraud, extortion, 20 misappropriation, or theft; or the sale, dist ribution or importation of 21 controlled substances; or the intentional killing of another; or an attempt or 22 conspiracy or solicitation of another to commit any of these offenses; or 23
"(b) a lawyer engage s in any other intentional conduct involving 24 dishonesty , fraud, deceit, or misrepresentation that seriously adversely 25 reflects on the lawyer's fitness to practice." 26

" 5.12 Suspension is generally appropriate when a lawyer knowingly 27 engages in criminal conduct which does not contain the elements listed in 28 St andard 5.11 [disbarment] and that seriously adversely reflects on the 29 lawyer's fitness to practice. 3012 " 5.13 Reprimand is generally appropriate when a lawyer knowingly 1 engages in any other conduct that involves dishonesty, fraud, deceit, or 2 misrepresentation and that adversely reflects on the lawyer's fitness to 3 practice law." 4
In considering those standards, we observe that they are not a perfect fit in 5
this case. We have concluded that the accused acted intentionally, but only ABA 6

Standard 5.11 , which describes when disbarment is appropriate, addresses intentional 7
conduct relating to a lawyer's failure to ma intain personal integrity. That standard applies 8
only when the lawyer has engaged in "serious criminal conduct" or "other intentional 9
conduct involving dishonesty * * * that seriously adversely reflects on the lawyer's 10
fitness to practice law." Although we have found that the accused acted intentionally, we 11

have concluded that the B ar has not established that the accused engaged in criminal 12

conduct, let alone serious criminal conduct. Moreover, as we will explain, we do not 13
think that the accused engaged in conduct that seriously adversely reflects on his fitness. 14

And, i n any event, the B ar has not suggested that disbarment is an appropriate sanction in 15

this case. We therefore conclude that ABA Standard 5.11 does not apply in this case. 16

ABA Standard s 5.12 (suspension) and 5.13 (reprimand) refer to an accused 17
lawyer's knowing conduct involving dishonesty, fraud, deceit, or misrepresentation

. As 18
this court explained in In re Flann ery , 334 Or 224, 233, 47 P3d 891 (2002), 19

"[t] he principal difference between those two standards lies in the degree to 20 which the conduct in question adversely reflects on the lawyer's fitness to 21 practice law. Suspension is appropriate if the conduct ' ser iously ' adversely 22 refl ects on fitness; otherwise, reprimand is appropriate ." 23

W e do not think that the accused's conduct reflects "seriously adversely" on 24
his fitness to practice law

. The accused was not charged with a crime , he did not benefit 2513

personally from his misconduct ( the beneficiaries were the Legal Aid Society of Hawai'i 1
and its indigent clients )
, and his misconduct did not cause any actual or potential harm. 2

Those facts lead us to conclude that the accused's conduct does not "seriousl y" adversely 3
reflect on his fitness to practice law , and ABA Standard 5.12 does not, by its terms, apply 4
to the present facts . As a result, we determine preliminarily that the ABA Standard that 5
most closely fits the conduct in this proceeding is Standard 5.13 , which suggests that a 6
public reprimand is an appropriate sanction

. 7

5. Aggravating or M itigating C ircumstances. 8
ABA Standards 9.22 and 9.32 list aggravating and mitigating factors 9
respectively that the court may consider to justify increasing or decreasing the court's 10
preliminary determination of an appropriate sanction. The accused and the Hawai'i 11
Disciplinary Counsel stipulated to the existence of one aggravating factor

-- the accused's 12
substantial experience in the practice of law , ABA Standar d 9.22(i)

-- and two mitigating 13

factor s

-- his lack of a disciplinary record , ABA Standard 9.32(a), and his willingness to 14
accept responsibility for his improper use of Westlaw services , ABA Standard 9.32(e)

. 15

The B ar agrees that this court may find those aggravating and mitigating factors, but 16
argues that this court should find three additional aggravating factors based on the 17
stipulated facts: that the accused had a dishonest and selfish motive, ABA Standard 18

9.22(b); that the accused engaged in a pattern of misconduct, ABA Standard 9.22(c) ; and 19
that the accused was indifferent to making restitution, ABA Standard 9.22(j). 20

The B ar argues that the accused acted with a dishonest or selfish motive 21

because the accused " obtained a personal benefit [ from using the OSP's Westlaw 2214

account ] in performing his job as a lawyer
, " but the B ar does not elaborate on that point. 1

The B ar has not presented clear and convincing evidence that the accused used the OSP 's 2
Westlaw password in his research on behalf of i ndigent clients to achieve personal or 3
financial gain. We find that the evidence in this proceeding does not support that 4
aggravating factor

. 5

The B ar also asserts that the accused engaged in a p attern of misconduct . It 6

contends that the accused's mis conduct "was not isolated or impulsive; it was continuing 7

and deliberate." I t is correct that, i n this case, the accused's misuse of OSP's Westlaw 8

account continued on occasion for 14 months. However, t he B ar has not pointed to any 9

case in which this cou rt has found a "pattern of misconduct," as that phrase is used in the 10

ABA Standards, from a single course of conduct, even a lengthy one. On the contrary, 11
this court has applied that aggravating factor only in cases in which the lawyer has 12

violat ed the di sciplinary rule s in more than one case or matter. See, e.g.
, In re 13
McDonough , 336 Or 36, 44, 77 P3d 306 (2003) (finding pattern of misconduct where 14
lawyer repeatedly committed multipl e criminal offenses); In re Kluge , 332 Or 251, 263, 15
27 P3d 102 (2001) (multiple misrepresentations in various circumstances revealed patter n 16
of dishonesty and misconduct); In re Haws , 310 Or 741, 753, 801 P2d 818 (1990) 17
(finding pattern of misconduct where lawyer fail ed to respond fully and truthfully to 12 18

separate state B ar inquiries concerning alleged disciplinary violations ); In re Luebke , 301 19

Or 321, 336, 722 P2d 1221 (1986) (fin ding pattern of misconduct where the accused 20
committed the same violations in two separate cases)

. Although we do not hold that an 21
ongoing course of conduct never can amount to a "pattern of misconduct," we find that 2215

the B ar has not proved that aggravatin g factor by clear and convincing evidence in this 1

case

. 2
Finally, the B ar points to the accused's indifference to restitution, inasmuch 3
as the accused refuses to recogn ize any economic damages. The B ar contends that 4

Thomson Reuters was deprived of paym ent for Westlaw services that the accused used 5

after he had left OSP and that the accused was obligated to
, but did not
, reimburse OSP 6

for the Westlaw services he used after he had left that office. As we have explained, 7

however, Thomson Reuters was not d eprived of payment for the services the accused 8
used when he was working for the legal aid society; it was paid for those services by the 9
Republic of Palau. And the Republic of Palau was required to pa y the same monthly flat 10

fee whether or not the accused used the services. The accused's misconduct did not result 11
in any additional charge to OSP or the Republic of Palau, and no reimbursement was 12
necessary. The Bar has failed to prove the aggravating factor of indifference to 13
restitution by clear and convi ncing evidence. 14
To summarize, we agree with the Hawai'i Disciplinary Board's findings of 15
aggravating and mitigating factors. We conclude that the mitigating factors outweigh the 16
aggravating factor. 17

6. Case Law 18

The B ar argues that prior case law suggests that this court should suspend 19

the accused for six months. The B ar characterizes the accused's conduct as "theft" and 20
asserts that this court has imposed lengthy suspensions on lawyers who engage in theft. 21

In suppor t of that proposition, the B ar cites In re Benett , 331 Or 270, 14 P3d 66 (2000) 2216

(lawyer suspended for 180 days for cashing and depositing checks from opposing counsel 1

in satisfaction o f debt already paid , and, in second case, charging excessive fee and 2
failing to refund client money); In re Kimmell , 332 Or 480
, 31 P3d 414 (2001 ) (lawyer 3
suspended for six months for shoplifting jacket from retail store); In re Summer , 338 Or 4
29, 105 P3d 848 (2005) (lawyer suspended for 180 days for attempting to recover twice 5
from separate insurers for his client' s injuries, leading to his conviction f or theft by 6
deception) ; and In re Unrein , 323 Or 285, 917 P2d 1022 (1996) (lawyer suspended for 7
120 days for applying for and receiving unemployment compensation benefits on four 8
separate occasions while knowing that she was ineligible for such benefits). Those cases 9

all involve d much more egregious misconduct than the accused's, and they all involved 10
direct and significant financial gain, whether on behalf of the lawyer or the lawyer's 11

client. 12

The B ar also points to In re Houchin , 290 Or 433, 622 P2d 723 (1981) 13
(lawyer suspended for 30 days for enrolling as student in community college course that 14

he was teaching to qualify for Veteran s ' Administration benefit s). That case, too, 15

involved a n accused lawyer receiving a direct financial gain from his misrepresentation. 16
In fact, this court based its decision to suspend rather than reprimand the accused lawyer 17

in Houchin on the fact that he had acted dishonestly for the express purpose of obtaining 18

a fin ancial advantage. 19
In our view, this case more closely resembles two cases in which this court 20
imposed public reprimands for the lawyers ' misconduct: Flannery , 334 Or 224, and In re 21

Carpenter , 337 Or 226, 95 P3d 203 (2004). Flannery involved a n accused lawyer who, 2217

after moving to Vancouver, Washington, renewed his Oregon driver license using the 1
Canby, Oregon address of his girlfriend's parents , which was a criminal offense . This 2

court found that the accused lawyer's conduct, while intentional, did not "seriously" 3
adversely reflect on his fitness to practice law. 334 Or at 233

- 34. The court also found 4

that the mitigating factors outweighed the aggravating factors and that the co nduct giving 5
rise to the proceeding was unlikely to recur. Id. at 235, 237. The court therefore imposed 6
a public reprimand. Id. at 237. Similarly, in Carpenter
, this court imposed a public 7
reprimand on a n accused lawyer who dishonestly posed as a parti cular high school 8

teacher on an I nternet site and then made statements that jeopardiz ed that teacher's career. 9

In that case, the court noted that the accused lawyer had not engaged in criminal conduct, 10
that his misconduct did not arise in his practice of law, and that his misconduct did not 11
benefit him personally. 337 Or at 244. The court stated that, although the accused 12
lawyer had acted intentionally and caused some actual harm, his conduct did not 13
"seriously" adversely reflect on his fitness to practi ce

. Id. Again, the court found that 14
the mitigating factors outweighed the aggravating factors and that the misconduct was 15
unlikely to recur. Id. 16

In this case, too, we have concluded that the accused's misconduct did not 17
seriously adversely reflect on his fitness to practice law and that the mitigating factors 18
outweigh the aggravating factors. We are also persuaded that the conduct giving rise to 19
this proceeding is unlikely to re cur. Given th ose facts, and the fact that the accused has 20

an unblemished record in 35 years as a practicing la wyer, we are satisfied that a public 21
reprimand will adequately protect the public. 2218 The accused is publicly reprimanded. 1