
FILED:  May 12, 2005
IN THE SUPREME COURT OF THE STATE OF OREGON
In re Complaint as to the Conduct of
SALLY LEISURE,
Accused.
(OSB Nos. 02-149, 02-150, 03-31; SC S51514)
En Banc
On review of the decision of a trial panel of the
Disciplinary Board.
Argued and submitted March 7, 2005.
Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego,
argued the cause and filed the briefs for the Oregon State Bar.  
Sally Leisure, herself, Portland, argued the cause and filed
the brief for the accused.  
PER CURIAM
The accused is suspended from the practice of law for 18
months, effective 60 days from the date of the filing of this
decision.
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar (Bar) alleges that the accused violated Code of
Professional Responsibility Disciplinary Rules (DR) (1) by
writing numerous checks that, when she wrote them, her checking
account could not cover.  Based on that conduct, and its effect
on two creditors in particular, the Bar charged that the accused
had violated DR 1-102(A)(2) (engaging in criminal conduct
reflecting adversely on a lawyer's honesty, trustworthiness, or
fitness to practice law) and DR 1-102(A)(3) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation). (2) 
A trial panel of the Disciplinary Board concluded that
the accused did not violate DR 1-102(A)(2), but that she did
violate DR 1-102(A)(3) due to her poor money management.  It
further determined that the appropriate sanction was an 18-month
suspension, with all but three months stayed if the accused
complied with certain terms.  On review, the Bar seeks a full 18-month suspension with no period stayed.
Our review is de novo.  ORS 9.536(3); BR 10.6; In re
Eakin, 334 Or 238, 240, 48 P3d 147 (2002).  The Bar must
establish, by clear and convincing evidence, the alleged
misconduct.  BR 5.2.  "Clear and convincing evidence means
evidence establishing that the truth of the facts asserted is
highly probable."  Eakin, 334 Or at 240.  On de novo review, we
conclude that the accused violated both disciplinary rules as
charged.  We suspend the accused from the practice of law for 18
months, with none of that period stayed.  
I.  FACTS
The accused has been a lawyer since 1983.  Her practice
focuses on debtor-creditor issues. 
A.  The Gallops Saddlery Matter
The accused's daughter participated in the sport of
English show riding.  McCarthy, part owner of a business called
Gallops Saddlery and a long-time participant in the sport
herself, testified before the trial panel that, in her
estimation, English show riding involves between $900 and $2,000
in monthly fees, excluding the cost of a horse.  
On August 19, 2001, the accused wrote a personal check
for $1,400 to Gallops Saddlery as the final payment for a $3,000
custom-made saddle for her daughter.  The accused's bank did not
honor the check, because the accused did not have sufficient
funds in her bank account.  An employee of Gallops Saddlery later
called the accused about the check.  The accused told the
employee that she would cover the check by either the third or
fourth day of September 2001 and would contact Gallops Saddlery
to let them know that the funds were in her bank account.  
The accused did not call Gallops Saddlery within the
time that she had specified, and the owner of Gallops Saddlery
tried to contact the accused.  The owner left the accused several
messages that went unanswered until September 8, 2001.  On that
day, the accused told the owner of Gallops Saddlery that the
check would be covered by September tenth or eleventh.  On the
day before that telephone call, September 7, 2001, the accused's
bank account balance had been $574.97, and she had made a deposit
of $900.  However, by September 11, 2001, the accused had made
two automated teller machine (ATM) withdrawals totaling $163.25
and had made two debit card purchases totaling $108.97.  Four
checks totaling $677.50 also had been presented to the bank for
payment out of the accused's account.  The owner of Gallops
Saddlery called the accused's bank on September 11, 2001, and was
informed that there were still insufficient funds in the
accused's bank account to cover the $1,400 check.  
The accused eventually covered the check on October 10,
2001.  In the meantime, however, Gallops Saddlery incurred both
bank and lawyer's fees in its efforts to obtain payment from the
accused. The owner of Gallops Saddlery subsequently filed an
ethics complaint against the accused with the Bar.  
B.  The Combs Matter
In 1996, the accused represented McCulloch in
litigation against Price Waterhouse Coopers, LLP (PWC).  Before
trial, the accused asked another lawyer, Combs, to try the case
and to act as her co-counsel.  At that time, Combs was an
associate with Case & Dusterhoff, LLP.  Accordingly, the accused
entered into an agreement with Case & Dusterhoff regarding the
fees for the case.  The accused and Case & Dusterhoff agreed that
they would divide the attorney fees equally after the deduction
of costs. (3)
The accused and Combs successfully litigated the
McCulloch case against PWC.  McCulloch, however, was not
satisfied with the judgment and refused to pay the accused and
Combs their fees.  The accused then hired Yugler to represent her
in a suit against McCulloch for the unpaid fees.  For the
purposes of recovering the fees, Case & Dusterhoff assigned its
interest in the fees to the accused.  The accused agreed that,
upon any recovery, she would pay Case & Dusterhoff according to
their fee agreement.  In October 2001, Yugler obtained a judgment
against McCulloch for $158,265 plus an additional $33,252.51 in
post-judgment interest.  Yugler then sought to collect that money
from McCulloch.  
Between January and August 2002, Yugler collected
approximately $21,000 from McCulloch.  Yugler then disbursed
approximately $8,900 to the accused on four separate occasions
between March and August 2002.  The accused did not disclose her
receipt of those funds to Case & Dusterhoff, even though she had
calculated that her total share of the costs was only $7,253.16. 
In August 2002, Yugler recovered $186,017.17 from McCulloch, and
he disbursed $122,807.05 to the accused.  Again, the accused did
not immediately disclose her receipt of those funds to Case &
Dusterhoff.  She deposited the check into her business account,
which the bank credited with a deposit for $121,807.05 (4) on
August 30, 2002.  By August 31, 2002, the balance in the
accused's business account was $114,235.71.  
On August 30, 2002, Yugler told Case about the
$122,807.05 payment to the accused.  Case then requested an
accounting from Yugler.  Assuming that he soon would receive
payment from the accused, Case went on vacation until September
9, 2002.  By the time that Case returned from vacation, the
accused's account balance had dwindled to $89,221.22.  The
accused also had not yet disclosed to Case & Dusterhoff her
receipt of the funds from Yugler.  Case contacted the accused on
September 10, 2002, and the accused told him that the money was
in her bank account but she could not yet distribute the funds
because the bank was holding Yugler's check and had not credited
the funds to her account.  On September 18, 2002, Case received
the accounting that he had requested from Yugler and discovered,
for the first time, that Yugler had made several payments to the
accused.
Case immediately demanded payment from the accused. 
The accused acknowledged that she owed Case & Dusterhoff
$55,813.94, and, on September 18, 2002, she wrote a check to
Combs for that amount.  However, on September 18, 2002, the
accused's account balance was only $37,153.36.  Combs immediately
sought to cash the check, but the accused's bank refused to honor
the check because the accused's account did not contain
sufficient funds.  Combs then went to the accused's office
regarding the check.  The accused initially told him that the
bank had made a mistake, but later that day she told him that the
bank had not honored the check because her account was $6,000 or
$7,000 short.  Case and Combs then asked the accused to issue to
them a check for an amount that her account could cover.  She
told them that she would provide them with a check for $48,000
the next day.  On September 19, 2002, the accused provided Case &
Dusterhoff with a cashier's check for $35,000.  
After they received the $35,000 check, Case and Combs
sought to recover the remaining $20,813.94 from the accused. 
Case told the accused that, if she did not promptly honor her
obligation, he would have no choice but to file a complaint with
the Bar.  The accused responded by asserting that she was guilty
only of a breach of contract.  
During the first week of October 2002, the accused
provided Case & Dusterhoff with three checks that totaled
$20,813.94.  One was dated October 4, 2002, and was for $10,000,
and two were dated October 5, 2002, and were for $5,813.94 and
$5,000, respectively.  The accused's account did not contain
sufficient funds to cover any of those checks.  Combs later
cashed the  $10,000 check on October 15, 2002, the $5,000 check
on October 22, 2002, and the $5,813.94 check on December 12,
2002.  The third check cleared after Case filed a complaint with
the Bar.
During the hearing before the trial panel, the
following colloquy between a member of the panel and the accused
ensued:

"MR. HYATT:  * * *  [A]s I understood the
testimony[,] there was a legal document by which Case &
Dusterhoff's interest and those of Mr. Combs were
assigned to you for purposes of collection, right?
"MS. LEISURE:  Uh-huh.  To bring the lawsuit.
"MR. HYATT:  Would you agree from a legal
standpoint that created a formal fiduciary obligation
on your part to protect their interest?
"MS. LEISURE:  I guess I think of a fiduciary as a
little bit more formal, like a trustee or something.  I
certainly had a contractual duty to pay them and I did
pay them."

C.  The Accused's Financial Practices
During 2001, approximately 342 checks were drawn on the
accused's checking account and presented for payment from that
account.  Of those checks, the bank returned 98, and the accused
incurred either "overdraft item" or "returned item" charges on 
more than 200.  All 26 checks that were presented for payment
from the accused's account in October 2001 resulted in
nonsufficient funds (NSF) fees.  Between September 24 and October
26, 2001, the accused's account was overdrawn by thousands of
dollars.  Over the course of 2001, the accused incurred $5,600 in
overdraft fees.
Between April 1997 and August 2002, various courts
entered 17 judgments against the accused relating to her unpaid
debts.  The state also had placed tax liens on her real property
in regard to her unpaid property tax obligations.
Between October 1, 2002 and July 31, 2003, the accused
issued to an associate, who worked for her at that time, $12,500
in NSF checks for wages.  In February 2004, the accused filed a
petition for bankruptcy pursuant to Chapter 13 of the United
States Bankruptcy Code.
D.  Proceedings Below
The Bar charged the accused with violating DR 1-102(A)(2) and DR 1-102(A)(3) for each of the above-described
matters.  After a hearing, the trial panel concluded that the
accused had violated DR 1-102(A)(3) by engaging in a course of
negligent conduct that resulted in the following actions (or
inaction) on her part: (1) "failing to make good the check
written to Gallops [Saddlery], despite a number of promises to do
so"; (2) "failing to take whatever action was necessary to assure
[that] her personal financial situation did not impact on her
ability to be trustworthy"; (3) "representing the three checks
written to Case and Duster[h]off [were] negotiable, when in fact
the Accused knew they were not"; and (4) "failing to make good
the checks written to Case and Duster[h]off in a timely manner." 
The panel concluded, however, that the accused did not have the
mental state necessary to be guilty of a crime and thus that she
had not violated DR 1-102(A)(2).
The trial panel applied the American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended 1992)
(ABA Standards), but applied no mitigating or aggravating factors
under those standards.  It decided that the appropriate sanction,
was an 18-month suspension with all but three months of that
suspension stayed pending the accused's compliance with certain
conditions.  Those conditions included the accused working under
the supervision of another lawyer, the accused submitting monthly
audits of her finances to the Professional Liability Fund, and
the accused completing a course in practice management. 
For the reasons that follow, we disagree with the trial
panel's conclusion that the accused did not violate DR 1-102(A)(2), and we agree with the trial panel that the accused
violated DR 1-102(A)(3).
II.  DISCUSSION
A.  DR 1-102(A)(2)
DR 1-102(A)(2) provides, in part, that "[i]t is
professional misconduct for a lawyer to * * * [c]ommit a criminal
act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness to practice law[.]"  This court
recently explained that, in determining whether an accused lawyer
violated DR 1-102(A)(2), the court "first must determine what
criminal act the accused committed, then whether that act
reflects adversely on the lawyer's honesty, trustworthiness, or
fitness to practice law."  In re Summer, 338 Or 29, 36, 105 P3d
848 (2005) (citing In re Allen, 326 Or 107, 120-21, 949 P2d 710
(1997)).  In addition, this court has explained that, "[f]or the
rule to apply, the lawyer need not be convicted of the crime, nor
must criminal conduct be established beyond a reasonable
doubt[.]"  Summer, 338 Or at 36.  Rather, the Bar only must 
"establish the criminal act by clear and convincing evidence." 
Id. (citing In re Lawrence, 332 Or 502, 507, 31 P3d 1078 (2001);
In re Anson, 302 Or 446, 453-54, 730 P2d 1229 (1986)).
The Bar argues that, by writing NSF checks during 2001
and 2002, the accused repeatedly committed the crime of
negotiating a bad check, as defined by ORS 165.065, which
provides, in part:

"(1) A person commits the crime of negotiating a
bad check if the person makes, draws or utters a check
or similar sight order for the payment of money,
knowing that it will not be honored by the drawee.
"(2) For purposes of this section, unless the
check or order is postdated, it is prima facie evidence
of knowledge that the check or order would not be
honored if:
"(a) The drawer has no account with the drawee at
the time the check or order is drawn or uttered; or
"(b) Payment is refused by the drawee for lack of
funds, upon presentation within 30 days after the date
of utterance, and the drawer fails to make good within
10 days after receiving notice of refusal."

In addition, ORS 161.085(8) provides, in part, that
"'[k]nowingly' or 'with knowledge' * * * means that a person acts
with an awareness that the conduct of the person is of a nature
so described or that a circumstance so described exists." 
Negotiating a bad check is a Class A misdemeanor.  ORS
165.065(3)(a).
The Bar also posits that the accused is not fit to
practice law because her conduct (1) demonstrated that she
knowingly wrote several NSF checks; (2) demonstrated a disrespect
for the law; (3) victimized each person to whom she wrote an NSF
check due to the efforts that each had to undertake to be paid;
and (4) established a pattern of criminal conduct.  
The accused asserts that she committed no crime but,
instead, breached a series of contracts.  She argues that ORS
165.065 requires a complete failure to pay, or a theft, to fall
within its scope and that she has honored every check that she
has written. (5) 
As set out in Summer, 338 Or at 36, we begin by
determining whether the Bar has proved by clear and convincing
evidence that, when the accused wrote the NSF checks, she did so
in violation of ORS 165.065.  We interpret the text of ORS
165.065 by applying the statutory construction methodology set
out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12,
859 P2d 1143 (1993).  We begin by examining the text and context
of that statute.  Id. at 610-11.  
ORS 165.065 provides that, to be guilty of the crime of
negotiating a bad check, a person must:  (1) make, draw or utter
a check for the payment of money, (2) knowing that the check will
not be honored by the drawee.  As relevant here, ORS 165.065
further provides that it is prima facie evidence that the statute
has been violated if "[p]ayment is refused by the drawee for lack
of funds[] within 30 days after the date of utterance, and the
drawer fails to make good within 10 days after receiving notice
of refusal." 
The facts establish that the accused failed to make
good, within 10 days after receiving notice that her bank refused
to pay, the checks that she had issued to Gallops Saddlery and
the three checks totaling $20,813.94 that she had issued to Case
& Dusteroff.  That evidence therefore establishes clearly and
convincingly that the accused violated ORS 165.065 on at least
four occasions. 
In addition, between September 24 and October 26, 2001,
the accused's account always had a negative balance.  On
September 27, 2001, the accused's account had a negative balance
of $3,141.98 and consistently thereafter had a negative balance
that exceeded $2,000.  The accused also made only two deposits to
her account between September 24 and October 26, 2001.  One was
for $1,000 on September 28, 2001, and the other was for $1,102.74
on October 1, 2001.  Despite having made only two deposits that
together were not sufficient to cover the more than $3,000
deficit in the accused's account, the accused continued to write
checks against that account and issue them to others.  Between
September 24 and October 26, 2001, the accused issued
approximately 14 checks totaling $2,191.70.  Although those
expenditures were roughly equivalent to the deposits that the
accused had made, the deposits themselves were not sufficient to
raise the accused's account balance to zero.  The foregoing
illustrates that the accused must have known that her bank would
not cover all those checks.  
The accused asserts in her defense that, to violate ORS
165.065, a person must intend to commit a theft.  We disagree
with that reading of the statute.  The accused may be correct
that the legislature intended, in part, to address theft by means
of writing bad checks.  However, the statute on its face
demonstrates that the legislature intended to prevent anyone from
knowingly issuing checks that their financial institution would
not cover.  Here, the accused wrote checks between September 24,
and October 26, 2001, and, during that period, she was aware that
her bank would not cover those checks.  Therefore, the accused
violated ORS 165.065 when she wrote checks for the payment of
money to others during that time period.
Having concluded that the Bar has established by clear
and convincing evidence that the accused committed a criminal act
for the purposes of DR 1-102(A)(2), we now must determine whether
that criminal act is one that reflects adversely on the accused's
honesty, trustworthiness, or fitness to practice law.   
This is not a case in which the accused wrote one or
two, or even a few, bad checks.  Instead, the accused repeatedly
issued to others, on several occasions, checks that her bank
either dishonored outright or paid but, due to a negative account
balance, charged the accused an NSF fee.  As a result of that
conduct, the accused incurred NSF fees more than 200 times.  In
addition, she engaged in that conduct over a lengthy period of
time.  The accused's conduct suggests a disrespect for the law
and for the duties of the legal professional.  With respect to
the checks that she wrote to Gallops Saddlery and Case &
Dusterhoff, the accused repeatedly misrepresented when she
finally could provide full payment.  Further, when the accused
issued checks between September 24 and October 26, 2001, she
implicitly represented to each payee that the payee promptly
would receive a cash payment from the accused's bank account upon
presentation of the check to the bank.  However, as discussed,
she knew that her account had a negative balance and that her
bank would not honor those checks.  The accused's conduct in the
instances involving Gallops Saddlery and Case & Dusterhoff
reflected adversely on both her honesty and her trustworthiness. 
 We conclude that the Bar has established, by clear and
convincing evidence, that the accused committed a criminal act
that reflected adversely on her honesty and her trustworthiness
and, therefore, that she violated DR 1-102(A)(2).
B.  DR 1-102(A)(3)
DR 1-102(A)(3) provides, in part, that "[i]t is
professional misconduct for a lawyer to * * * [e]ngage in conduct
involving dishonesty, fraud, deceit or misrepresentation[.]" As
to the prohibition against misrepresentations, this court
recently explained:

"To establish that the accused made a
misrepresentation, the Bar must prove by clear and
convincing evidence that the misrepresentation was
'knowing, false, and material in the sense that the
misrepresentatio[n] would or could significantly
influence the hearer's decision-making process.'  In re
Eadie, 333 Or 42, 53, 36 P3d 468 (2001).  A lawyer
makes a misrepresentation 'either when the lawyer makes
an affirmative false statement or when the lawyer
remains silent despite having a duty to speak.'  In re
Lawrence, 337 Or 450, 464, 98 P3d 366 (2004)."

In In re Phillips, 338 Or 125, 135, ___ P3d ___ (2005).

The trial panel concluded that the accused made
misrepresentations and was dishonest, in violation of DR 1-102(A)(3), when she failed to honor her obligations to Gallops
Saddlery and Case & Dusterhoff in a timely manner, and when she
repeatedly issued to others, including to Case & Dusterhoff,
checks that she knew were not negotiable.  The Bar argues that
the trial panel was correct and that the same conduct that
resulted in the accused violating DR 1-102(A)(2) necessarily
resulted in her violating DR 1-102(A)(3).  We agree.  
The accused made the following affirmative false
statements:  (1) to Gallops Saddlery, that she would honor her
check on September 11, 2001; (2) to Case, that her bank had not
allowed her immediately to deposit Yugler's check for $122,807.05
and that her account had not been credited with that amount by
September 10, 2002; (3) to Case & Dusterhoff, that her bank would
honor each check that she had issued to Combs; and (4) to each
person to whom she had issued a check between September 24 and
October 26, 2001, that her bank would cover the check.  The
accused also made a false statement by nondisclosure when she
failed to disclose promptly to Case & Dusterhoff her receipt of
funds from Yugler when, pursuant to her fee agreement with the
firm, she had a fiduciary duty to do so.  See In re Obert, 336 Or
640, 649, 89 P3d 1173 (2004) (citing In re Kimmell, 332 Or 480,
491 n 9, 31 P3d 414 (2001) (one acts in a fiduciary capacity when
one handles money for the benefit of another person, "as to whom
he stands in a relation implying and necessitating great
confidence and trust on the one part and a high degree of good
faith on the other part")).  
Each of those statements significantly influenced each
hearer's decision-making process; that is, each person or
business thought that the accused's checks represented prompt
payment for services or goods, and that the accused's bank would
cover each check.  Each responded accordingly by repeatedly
presenting the checks to the accused's bank for payment.  In some
instances, those receiving the accused's checks found themselves
with no choice but to retain lawyers and file ethics complaints
with the Bar.  Had each person or business receiving one of the
accused's checks known that her bank would not honor the check,
they either would have denied their services or goods or
immediately made other payment arrangements.  The false
statements, therefore, were material.  Finally, as set out above,
the relevant bank records indicate that the accused knowingly
made each of those false statements.  As to the accused's
nondisclosure to Case & Dusterhoff, the record also demonstrates
that the accused had the material facts in mind and knowingly
failed to disclose them when she engaged in the nondisclosure. 
See In re Kluge, 332 Or 251, 261, 27 P3d 102 (2001) (stating the
requirement for knowing nondisclosure to amount to
misrepresentation under DR 1-102(A)(3)).
We conclude that the Bar has proved by clear and
convincing evidence that the accused engaged in conduct involving
misrepresentation and thus violated DR 1-102(A)(3).
III.  SANCTION
In determining the appropriate sanction, this court,
relying on the ABA Standards, engages in a preliminary analysis
in which the court weighs the duty violated, the accused's mental
state, the actual or potential injury, and any aggravating or
mitigating circumstances.  See Eakin, 334 Or at 257.  The court
then reviews the applicable case law.  Id. 
A.  Preliminary Analysis
1.  Duty Violated
By violating DR 1-102(A)(2) and DR 1-102(A)(3), the
accused violated her duty to the public to maintain her personal
integrity.  ABA Standard 5.1.  The public must be able to trust
lawyers, and it expects lawyers to observe high standards of
honesty and integrity.  By issuing a large number of checks that
she knew that her bank would not cover, the accused demonstrated
that the public could not trust her representations that, in each
instance, she was providing the payee with prompt payment for
services rendered.  In addition, the accused's failure to
disclose to Case & Dusterhoff her receipt of funds from Yugler
when she had a duty to do so was deceptive and reflected a lack
of integrity. 
2.  Mental State
"[A] lawyer's mental state when engaging in particular
conduct may be intentional, knowing, or negligent."  Lawrence,
332 Or at 510.  A lawyer acts knowingly when he or she acts with
"the conscious awareness of the nature or attendant circumstances
of the conduct but without the conscious objective or purpose to
accomplish a particular result."  ABA Standards at 7; In re
Dugger, 334 Or 602, 623, 54 P3d 595 (2002).  We conclude that the
accused knowingly issued NSF checks to others and that she
knowingly made misrepresentations to Case & Dusterhoff regarding
her receipt of funds from Yugler.  
3.  Actual or Potential Injury
The accused caused actual injury to every person or
entity who received an NSF check from her account and who then
was required to expend time, effort, and, as with Gallops
Saddlery, to incur bank and legal fees in their attempts to
recover the amounts owed.
B.  Aggravating and Mitigating Circumstances
"[A]ggravating circumstances are any considerations or
factors that may justify an increase in the degree of discipline
to be imposed."   ABA Standard 9.21.  Here, at least four
aggravating circumstances apply.  First, the accused's
willingness to issue checks to others knowing that funds in her
account could not cover the checks demonstrated a selfish motive. 
ABA Standard 9.22(b).  Second, the accused repeatedly issued NSF
checks to others and thus engaged in a pattern of misconduct. 
ABA Standard 9.22(c).  Third, there are multiple offenses.  ABA
Standard 9.22(d).  Finally, the accused has substantial
experience in the practice of law.  ABA Standard 9.22(i).  
"[M]itigating circumstances are any considerations or
factors that may justify a reduction in the degree of discipline
to be imposed."   ABA Standard 9.31.  There are two mitigating
circumstances in this case.  First, the accused has no prior
disciplinary record.  ABA Standard 9.32(a).  Second, the accused
has a good reputation handling debtor-creditor issues, and 
witnesses testified before the trial panel as to her otherwise
good character.  ABA Standard 9.22(g).   
C.  Oregon Case Law
Our preliminary analysis under the ABA Standards
supports imposing a suspension for the accused's misconduct.  See
ABA Standard 5.12 (stating that suspension appropriate when
lawyer knowingly engages in criminal conduct seriously adversely
reflecting on lawyer's fitness to practice).  We now review this
court's case law.  
Five of this court's prior cases guide our
determination in this case.  In In re Davenport, 334 Or 298, 49
P3d 91 (2002), the accused lawyer represented the Professional
Liability Fund (PLF) and had devised a scheme that would allow
the PLF to have more leverage in its dealings with plaintiffs in
lawyer malpractice cases.  A lawyer representing malpractice
plaintiffs in a bankruptcy proceeding discovered the scheme and,
during an examination, asked the accused lawyer whether he was
acting on behalf of the PLF.  Wishing to protect the PLF's
identity, the lawyer either refused to answer or stated that he
did not know the answer to most of the questions asked.  Counsel
for the bankruptcy trustee later filed a motion to compel the
accused lawyer to answer, and, as a result, the PLF hired legal
counsel to represent the lawyer.  After a thorough review of the
pertinent information, the accused lawyer's counsel recommended
that he change 42 of his answers.  The accused lawyer complied. 
Malpractice counsel again questioned the accused lawyer, who
again claimed a lack of knowledge in response to some of the
questions asked.  Id. at 306.  This court concluded that the
accused lawyer had violated, among other rules, DR 1-102(A)(2)
and DR 1-102(A)(3).  In reaching that conclusion, the court
observed that the accused lawyer had violated, among other
duties, his duty to the public to maintain his personal
integrity.  The court also concluded that the accused lawyer had
acted intentionally and that his conduct had caused both actual
and potential injury.  The court imposed a two-year suspension. 
Id. at 325.
We think that the above-described conduct at issue in
Davenport is analogous to the conduct at issue here.  In both
cases, the accused lawyers may have subjectively intended no harm
by their conduct, but they inevitably engaged in a pattern of
deceptive conduct reflecting adversely on their fitness to
practice law.
In In re Gustafson, 333 Or 468, 41 P3d 1063 (2002), the
accused lawyer was a deputy district attorney.  She had been
counsel in a juvenile matter, her handling of which resulted in
an ethics complaint.  Earlier that year, while the accused lawyer
had been preparing for the juvenile's trial, she had accumulated
a significant amount of documentary material relevant to the
juvenile's trial.  The trial court eventually dismissed the
charges against the juvenile and later ordered that the
juvenile's record be expunged.  After the trial, the accused
lawyer sought, and was granted, permission to take home some of
the documentary material from the juvenile's trial so that she
could prepare her response to the ethics complaint.  After the
court issued its expunction order, the accused lawyer failed to
destroy the records that she possessed that fell within the scope
of the order and even had given some of the records to her former
legal counsel and to the Bar.  Upon his discovery that the
accused lawyer possessed that information and had distributed it,
counsel for the juvenile issued to the accused lawyer a subpoena
requiring her to produce all documents in her possession related
to the juvenile matter.  The accused lawyer produced some, but
not all, of the documents and claimed that she did not know about
the expunction order.  Other evidence indicated, however, that
the accused lawyer had received a copy of the order.  Id. at 477. 
This court concluded that, among other rules, the accused lawyer
had violated DR 1-102(A)(2) and DR 1-102(A)(3).  The court
further concluded that the accused lawyer had violated her duty
to the public to maintain personal integrity and had acted
intentionally, and that her actions had caused the juvenile
actual injury.  The court disbarred the accused lawyer.  Id. at
489. 
As in Gustafson, the accused's conduct in this case
exhibited a cavalier disregard for the law.  The accused knew, or
should have known, that it is illegal to issue to others checks
that one knows his or her account cannot cover.  Yet the accused
continued to do so over an extended period of time, resulting in
an alarmingly high number of NSF checks.  
In Lawrence, the accused lawyer had failed to file
state or federal tax returns for three consecutive years.  This
court concluded that the accused lawyer had violated DR 1-102(A)(2).  The court further reasoned that the accused's conduct
had violated his duty to the public to maintain his personal
integrity, but that he had acted negligently.  Although the court
concluded that the accused lawyer's conduct had caused actual
injury, it found the existence of several mitigating factors,
including a long delay during disciplinary proceedings, during
which the accused lawyer's record was unblemished.  The court
suspended the accused lawyer for 60 days.  332 Or at 517.
In In re Murdock, 328 Or 18, 968 P2d 1270 (1998), the
accused lawyer was employed at a law firm where he provided
indigent criminal defense to the firm's clients.  For that work,
the firm was compensated through an agreement with the State
Court Administrator (SCA).  Eventually, the firm discovered that
the accused lawyer had embezzled $6,917.78 of payments received
from the SCA.  The Bar charged violations of DR 1-102(A)(2) and
DR 1-102(A)(3), and the accused lawyer stipulated that he had
violated those rules.  In determining the appropriate sanction,
this court concluded that the accused lawyer had violated his
duty to the public to maintain personal integrity and to maintain
public trust.  The court also concluded that the accused lawyer
had violated duties owed to his law firm.  The court explained
that, "[a]lthough there is no explicit rule requiring lawyers to
be candid and fair with their partners or employers, such an
obligation is implicit in the prohibition of DR 1-102(A)(3)[.]" 
Murdock, 328 Or at 25.  The court added that the accused's
conduct was "a violation of the duty of loyalty owed by a lawyer
to his or her firm based on their contractual or agency
relationship."  Id.  The court concluded that the accused had
acted intentionally and had caused both potential and actual
injury to clients and to his law firm.  The court disbarred the
accused.
In this case, although the accused was not employed by
Case & Dusterhoff, she received from Yugler funds that were
subject to a fee sharing agreement with Case & Dusterhoff.  She
then promptly deposited those funds into her bank account, spent
them, and failed to disclose to Case & Dusterhoff her receipt of
the funds.  It remains unclear whether the accused ever intended
to disclose her receipt of those funds to Case & Dusterhoff. 
However, her failure to disclose the first few payments that she
received from Yugler, and the pace at which her account balance
dwindled after she deposited the check for $122,807.05, strongly
suggests that, had Case not demanded payment from the accused,
she likely would not have disclosed her receipt of funds to Case
& Dusterhoff.
Finally, in In re Morin, 319 Or 547, 878 P2d 393
(1994), the accused lawyer prepared living trust packages.  He
and two paralegals traveled throughout Oregon and Northern
California conducting seminars aimed at selling those packages. 
Because the accused lawyer generated a significant amount of
business at those seminars, he conducted some of his business
with clients by mail.  More specifically, instead of having
documents properly witnessed, with both the client and witnesses
present, the accused lawyer began the practice of having clients
sign the documents at the seminars, taking them back to his
office to be witnessed by office staff, and mailing them back to
the clients.  After some investigation, the accused lawyer
admitted to the Bar that he had engaged in that practice with
over 300 clients.  The Bar charged violations of, among other
rules, DR 1-102(A)(2) and DR 1-102(A)(3).  Id. at 553-57.  This
court concluded that the accused had violated both rules, that he
acted intentionally, and ultimately disbarred the accused lawyer. 
Id. at 566.  
In Morin, the accused lawyer also had been charged with
violations related to charging excessive fees and aiding the
unlawful practice of law.  Its relevance here, however, is that
the misconduct at issue reflected a extended course of illegal
conduct that involved material misrepresentations to a
significant number of people.
The foregoing cases reveal that this court has imposed
either a lengthy suspension or disbarment as the sanction for
intentionally deceptive conduct that violates both DR 1-102(A)(2)
and DR 1-102(A)(3).  In this case, we have concluded that the
accused acted knowingly.  However, although the accused knowingly
engaged in a pattern of misconduct and was deceptive, her conduct
did not cause the sort of injury that occurred in Gustafson,
Murdock, or Morin.  The accused's conduct caused a great deal of
inconvenience to many people, but it took its greatest toll on
the accused herself.  We conclude, therefore, that the accused
should not be subject to disbarment, but that she should be
subject to a lengthy suspension.   
D.  Appropriate Sanction
Based on the foregoing review of the ABA Standards and
this court's case law, we conclude that, as requested by the Bar,
the accused should be suspended from the practice of law for a
period of 18 months for her violations of DR 1-102(A)(2) and DR
1-102(A)(3).  None of that period of suspension shall be stayed.
The accused is suspended from the practice of law for
18 months, effective 60 days from the date of the filing of this
decision. 


1. The new Oregon Rules of Professional Conduct became
effective January 1, 2005.  The conduct at issue in this
proceeding occurred before that date, and, therefore, the Code of
Professional Responsibility applies. 
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2. In addition, the Bar asserts that the accused is subject to
discipline pursuant to ORS 9.527(1) (authorizing disbarment,
suspension, or reprimand when lawyer acts in manner that would
have been basis to deny admission to practice).  For reasons that
we have expressed in other cases, we decline to impose discipline
for conduct that is otherwise covered under the disciplinary
rules.  See In re Gustafson, 333 Or 468, 470 n 1, 41 P3d 1063
(2002) (citing In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001)
(declining to consider charge under ORS 9.527(1), because
conclusion that accused lawyer had violated statute would not
serve to enhance sanction)).
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3. Testimony before the trial panel indicated that the
agreement had not been in writing, but that both parties had
acknowledged it.
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4. Upon her deposit of the check for $122,807.05, the
accused immediately withdrew $1,000 in cash.
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5. The accused also asserts that the Bar may not
discipline a lawyer when the lawyer has filed a petition for
bankruptcy.  The record indicates, however, that these
disciplinary proceedings began well before the accused filed for
bankruptcy in February 2004.  We reject the accused's contention
in that regard without further discussion.
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