
FILED: OCTOBER 26, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
In re Complaint as to the Conduct of
BRUCE E. HUFFMAN,
Accused.
(OSB 95-228, 96-88; SC S43743)
	En Banc
	On review of the decision of a trial panel of the
Disciplinary Board.
	Submitted on the record October 12, 1999.
	Bruce E. Huffman, Nevada, filed the briefs in propria
persona.
	Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego,
filed the brief for the Oregon State Bar.
	PER CURIAM
	The accused is suspended for two years, with the period of
suspension to run consecutively to the period of suspension
imposed on the accused in In re Huffman, 328 Or 567, 983 P2d 534
(1999). 
	PER CURIAM
	In this lawyer disciplinary proceeding, a trial panel
of the Disciplinary Board found that the accused violated DR 1-102(A)(3) (prohibiting conduct involving dishonesty, fraud,
deceit, or misrepresentation) by filing motions to waive or defer
an appellate filing fee and the cost of preparing trial
transcripts, and DR 1-103(C) by failing to respond fully and
truthfully to inquiries from the Oregon State Bar (Bar).  The
trial panel imposed an 18-month suspension and required that the
accused take and pass the professional responsibility portion of
the bar examination before being reinstated to the practice of
law.  
 De novo review by this court is automatic.  ORS
9.536(2), (3).  The Bar has the burden of establishing alleged
misconduct by clear and convincing evidence.  BR 5.2.  We hold
that the Bar has established that the accused violated DR 1-102(A)(3) and DR 1-103(C) and that the appropriate sanction for those violations is a two-year suspension.  The suspension shall
run consecutively to the two-year suspension imposed on the
accused in In re Huffman, 328 Or 567, 983 P2d 534 (1999) (Huffman
I).
	The facts are not disputed.  On October 26, 1994, the
accused, on his own behalf, filed a notice of appeal from an
adverse judgment in a civil action between the accused and a
former client.  See Huffman v. Leon De Mendoza, 135 Or App 680,
682-84, 899 P2d 734 (1995) (setting out facts of that action). 
The accused did not include the $100 filing fee with his notice
of appeal.  See ORS 21.010(1) (1993) (requiring $100 filing fee
to initiate appellate review in Court of Appeals). (1)  The State
Court Administrator notified the accused that he either had to
submit the filing fee or file a motion to waive or defer the
filing fee under ORS 21.605 (1993). (2)
	On May 26, 1995, the accused filed the following motion
with the Court of Appeals: 
		"Appellant moves the Court for an order pursuant
to ORS 21.605 to waive or defer the filing fee in this
case for the reason that Appellants [sic] business and
income has dropped substantially this year from last
year.  Appellant is unable at this point to make his
estimated tax payments from his business income as
there is [sic] insufficient monies there."

On June 13, 1995, the accused filed a motion to waive or defer
the costs of preparing the transcript, asserting the same
grounds.  The Court of Appeals denied both motions.  The court
provided the accused with an affidavit of indigency and allowed
him additional time to submit it.  He testified that he did not
do so because, after reviewing the affidavit, he determined that
he "was probably not going to come within the guidelines."
	On June 19, 1995, approximately one week after the
accused had filed his motion to waive or defer the costs of
preparing the transcript, opposing counsel Gilstrap filed a
complaint with the Bar alleging that the accused had
misrepresented himself to the Court of Appeals as indigent or
insolvent.  On June 26, 1995, Assistant Disciplinary Counsel
Hicks asked the accused to respond to the complaint and to
include in his response information about his personal assets.
In his response to Hicks's inquiry, the accused stated
that, when he filed the motions, he was "experiencing a cash flow
problem."  He provided no financial records.  Over the next few
months, Hicks requested the accused's financial records.  On
October 31, and again on December 4, 1995, Hicks asked the
accused to provide her with the following: 
	"1.	the balance of all bank accounts in your name or
to which you had access as of May 26, 1995 [the
date of the accused's first motion].


	"2.	all stocks, bonds, mutual funds, futures, money
market accounts owned by you solely, jointly, or
in any other form of ownership that gave you the
right to transfer or use the proceeds from the
sale of them.
	"3.	any financial statements prepared or loan
applications made between January 1, 1995 and May
26, 1995."

On December 15, 1995, the accused told Hicks that he would not
disclose the requested personal financial documents because he
believed that her request was "not reasonable or necessary."  On
January 22, 1996, the accused told Hicks that, because the De
Mendoza case concerned a business matter, only his business
assets were relevant to her inquiry. 
	On June 25, 1996, the Bar referred the matter to the
Klamath/Lake County Local Professional Responsibility Committee,
which assigned Lakeview lawyer Bogardus to investigate.  In a
telephone interview in September 1996, Bogardus asked the accused
to disclose both his business and personal assets as of the date
on which he had filed his motions in the Court of Appeals.  The
accused replied that, at that time, he had approximately $1,400
in his business checking account, owned a business computer and
office furniture, owned three parcels of land in Klamath County,
and had an IRA account with a balance of approximately $100,000. 
The accused did not disclose to Bogardus that, at that time, he
also had over $400,000 in a personal checking account and over
$500,000 in personal investment accounts.  The Bar discovered
those additional assets at a later time. 
	The Bar's amended complaint asserted three causes of
complaint. (3)  As noted, the trial panel found that the accused 
violated DR 1-102(A)(3) and DR 1-103(C).  
	As a threshold matter, the accused contends that the
trial panel committed several procedural errors that prejudiced
his ability to receive a fair trial.  We have considered those
procedural challenges and reject them without further discussion. 
We turn to the substance of the charged violations.
DR 1-102(A)(3)
	We first address the Bar's claim that, by filing the
motions to waive or defer the appellate filing fee and transcript
costs, the accused violated DR 1-102(A)(3).  DR 1-102(A)
provides, in part:
		"It is professional misconduct for a lawyer to 

"* * * * *
		"(3) Engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."  

The Bar alleged that the motions were "false or misleading in one
or more of the following particulars:"
	"1.	The Accused's income and business had, in fact,
not declined sufficiently in 1995 to render him
unable to pay his filing fee, transcript
preparation costs, or tax obligations;


	"2.	The Accused, in fact, had sufficient funds in his
business bank account to pay the filing fee;
	"3.	The Accused, in fact, had sufficient personal assets
and funds to pay the filing fee and transcript
preparation costs; and
	"4.	The Accused, in fact, had sufficient combined personal
and business assets to meet his tax obligations."

The Bar also alleged that the "motions created the false
impression that the Accused was indigent or unable to pay the
Court of Appeals filing fee or the cost of preparing the
transcript."  
	DR-102(A)(3) contains four different legal grounds on
which a violation may be premised:  dishonesty, fraud, deceit,
and misrepresentation.  The Bar's amended complaint does not
specify on which of those theories it intended to proceed. 
Before this court, both the accused and the Bar argue only the
theory of misrepresentation.  Accordingly, we analyze the Bar's
allegations under that theory.
  	"Misrepresentation" may include an affirmative
misstatement, an intentional failure to disclose material facts
that may or may not have been intended to deceive, or a
combination of both.  In re Hiller, 298 Or 526, 532-33, 694 P2d
540 (1985); see also In re Greene, 290 Or 291, 298, 620 P2d 1379
(1980) (in concluding that lawyer's failure to advise court of
necessary information may be misrepresentation, court stated that
a "half-truth or silence can be as much a misrepresentation as a
lie").  Improper motive is not necessary for a violation of DR 1-102(A)(3).  In re McKee, 316 Or 114, 125, 849 P2d 509 (1993) ("A
misrepresentation made with the best of intentions is nonetheless
a misrepresentation."); see also In re Boardman, 312 Or 452, 456-57, 822 P2d 709 (1991) (in discussing misrepresentation charge,
court stated that "the fact that the accused did not intend
injury to any party [does not] preclude the finding of a
disciplinary rule violation"); Hiller, 298 Or at 533 (difference
between misrepresentation and fraud or deceit is that latter
include intention that recipient act on misrepresentation without
its being discovered).  In the disciplinary context, reliance by
the recipient of the misrepresentation is not a required element. 
In re Benson, 317 Or 164, 169, 854 P2d 466 (1993).  
	The Bar contends that, by filing the motions to waive
or defer, the accused violated DR 1-102(A)(3).  The Bar contends
both that the motions contained at least one affirmative
misstatement and that, by omitting material information from his
motions, the accused committed misrepresentation by
nondisclosure.  We first address the alleged affirmative
misstatement.  The Bar asserts that the accused's income had not,
as he claimed in his motions, "dropped substantially this year
from last year."  The Bar points to the tax returns for 1995, the
year in which the motions were filed, and 1994.  In 1995, the
accused reported an adjusted gross income of $80,479, while in
1994, he reported an adjusted gross income of $82,671.  The Bar
contends the difference -- $2,179 -- is anything but a
"substantial drop."  
	The accused responds that his statement that his income
had dropped substantially, comparing his financial situation at
the time that he filed his motions to the prior year, was true. 
He observes that $21,000 of his 1995 income was attributable to
sales of property that occurred in July 1995.  Those sales,
however, did not occur until after he filed his motions.  The
accused asserts that, when he compared his income at the time
that he filed the motions, his income had dropped substantially.
	When considering whether a lawyer has made an
affirmative misstatement, our inquiry focuses on the truth or
falsity of the facts asserted, not on whether those facts support
a legal point.  Cf. Boardman, 312 Or at 456 ("The fact that the
accused believed that his representations stated the legally
correct position is immaterial. * * * The point is that the
accused knew that he was misrepresenting the facts as they
existed at the time.").  
 In this proceeding, the Bar failed to prove, by clear
and convincing evidence, that the accused made an affirmative
misstatement when he claimed that his income had dropped
substantially.  The Bar gives no reason for comparing the
adjusted gross income for 1994 and 1995, instead of his total
income.  As the accused used the unmodified term "income," it
seems more appropriate to compare all his income in 1994 --
$103,720.67 -- to all his income in 1995 -- $89,125.20.  The
accused reasonably could characterize the difference between
those two numbers -- $14,595.47 or 14 percent -- as a
"substantial drop."  Furthermore, the accused is correct that the
court must judge the truth or falsity of his statements at the
time that he made them.  Nothing in the record suggests that the
accused knew, when he filed his motions, that he would have
income from property sales in the amount of $21,000 later in the
year.  Nor did the Bar introduce evidence about the accused's
income at the time he filed his motions.  Accordingly, we
conclude that the Bar failed to carry its burden of proof with
respect to the alleged affirmative misstatement.
	The Bar further argues that the accused engaged in
misrepresentation by nondisclosure.  The Bar reasons as follows: 
To be entitled to waiver or deferral, a party must be "unable to
pay" the filing fee or transcript costs.  ORS 21.605(1)(a); ORS
21.605(3)(a).  According to the Bar, the accused knew that
standard.  The accused had ample resources with which to pay the
filing fee and transcript costs for the appeal and, in fact, had
a net worth of over $1 million.  Nevertheless, the accused
requested waiver or deferral of the filing fee and transcript
costs.  As the Bar puts it, 
		"[t]he Accused knew that he was not entitled to a
waiver or deferral, but nevertheless filed motions that
were carefully worded to create the false impression
that he was either indigent or unable to pay the $100
filing fee and trial transcript preparation costs.  The
language of these motions painted a picture of business
reversals and reduction in personal income, a situation
in which the Accused's liabilities exceeded his assets
to such an extent that he could not even afford to pay
his taxes.  However, this picture was false[.]"

	The accused does not dispute the trial panel's factual
findings that he had ample assets with which to pay the filing
fee and cost of preparing the transcript.  He argues only that he
did not intend to mislead the Court of Appeals when he filed his
motions and that he thought that, to receive a deferral or
waiver, he merely had to have experienced "some sort of economic
setback." (4) 
	We conclude that the Bar proved, by clear and
convincing evidence, that the accused engaged in
misrepresentation by nondisclosure, in violation of DR 1-102(A)(3), when he filed the motions for waiver or deferral.  We
first observe that disposition of this portion of the DR 1-102(A)(3) charge depends largely on our assessment of the
credibility of several witnesses, especially the accused and
Gilstrap.  In disposing of the first cause of complaint -- a
cause not before us on review -- the trial panel expressly found
the accused to be not credible, a determination that we read as
applying to the accused's testimony generally, not just his
testimony with respect to the first cause of complaint.  Although
we review the record de novo in discipline cases, we generally
defer to the credibility determinations of a trial panel.  In re
Martin, 328 Or 177, 189, 970 P2d 638 (1998).  The Bar called
several lawyers in the Klamath Falls legal community who
testified that the accused had a poor reputation for truth and
veracity.  In response, the accused called one non-lawyer
witness, a former client, who testified that the accused was
truthful, and a lawyer witness, who testified that the accused
had a neutral reputation for truth and veracity.  The accused
suggested that Gilstrap was pursuing a vendetta against him and
had a poor memory and, accordingly, was not credible.  The trial
panel, however, apparently accepted Gilstrap's testimony as
credible, and so do we.  Our own review of the record leads us to
conclude that the accused was not credible.  
	To establish misrepresentation by nondisclosure, the
Bar must meet a high standard of proof:  The Bar must establish
that the accused lawyer knowingly failed to disclose a fact that
the accused lawyer had in mind and knew to be material.  In re
Gustafson, 327 Or 636, 648-49, 968 P2d 367 (1998).  "Material"
facts are those that, "had [they] been known by the court or
other decision-maker, would or could have influenced the
decision-making process significantly."  Id. at 649.  In this
case, the Bar contends that the accused knowingly failed to
disclose aspects of his financial situation -- particularly that
he had over $400,000 in a checking account and that he had a net
worth of over $1 million -- and that he knew that those facts
would or could have influenced the Court of Appeals' decision
about whether he was entitled to a waiver or deferral of the
appellate filing fee and transcript preparation costs.  
	The accused argues that the Bar's case must fail,
because the Bar did not establish that he knew that those facts
were material.  The accused contends that he had a good faith,
albeit mistaken, belief that the legal standard for the motions
that he filed was that he had suffered "some sort of economic
setback."  He further contends that he subjectively believed that
information about his personal assets was not material to whether
he was entitled to waiver or deferral in a case in which he was
not a party as an individual, but as a lawyer.  
	The accused does not argue that he did not have the
facts of his financial status in mind or that those facts were
not material to the court's decision whether to waive or defer
fees and costs.  The arguments of the accused thus are relevant
to only the narrow issue of his knowledge of the materiality of
the facts.  In essence, he contends that, if he in good faith
believed that the facts that he omitted to mention were not
material to the determination of his motions, he did not engage
in misrepresentation by nondisclosure.  We conclude, however,
that the record disproves the predicate for that reasoning, i.e.,
that the accused did not know that the information was material.
	First, the record establishes that the accused knew
that the standard for waiver or deferral of appellate filing fees
and transcript preparation costs was not that the moving party
has experienced "some kind of economic setback," but, instead,
was "unable to pay."  ORS 21.605(1)(a) (1993) (filing fees); ORS
21.605(3)(a) (1993) (transcript preparation costs; citing ORS
21.605(1)(a) (1993)).  The accused testified that the only
authority that he consulted before filing his motions was the
letter that he received from the Appellate Records Section
advising him that he needed either to submit the filing fee or to
file a motion to waive or defer the fee.  Although that letter
cites ORS 21.605, the accused testified that he had not read ORS
21.605 before filing his motions.  At least as to the motion to
waive or defer transcript preparation costs, the testimony of the
accused on that point is not credible.    
	The letter from the Records Section was a form letter
that requested that the accused provide "[a] filing fee of $100
(ORS 21.010; ORS 21.605); or a motion for waiver or deferral of
filing fees."  The letter does not mention transcript preparation
costs, let alone that a party may move to waive or defer those
costs.  ORS 21.605(3)(a) (1993) stated the procedure and
standards for waiver or deferral of transcript preparation costs. 
The Bar argues, and we agree, that the only way that the accused
-- who testified that he never had handled an appeal previously -- would have known to file a motion to waive or defer transcript
preparation costs was if he had read ORS 21.605 (1993), which
incorporated the "unable to pay" standard.
	Moreover, we find convincing evidence that the accused
had in mind information that he knew could have affected the
decision on his motions, based on testimony of Gilstrap, who had
represented the defendants in the case in which the accused had
filed the motions to waive or defer.  Gilstrap testified as
follows:
	"[The Bar:]  Okay.  And did you have any opportunity to
talk with Mr. Huffman specifically about his filing of
the motions requesting waiver and deferral of fees and
[costs]?


	"[Gilstrap:]  Only on one occasion.
	"[The Bar:]  What did Mr. Huffman say to you when you
talked to him about his filing that motion?
	"[Gilstrap]:  Well, by the time I talked to him I knew
that he was a person who had substantial assets.  I
didn't at that time know the extent to which his assets
consisted.  But I knew by then that he had substantial
assets and I asked him, in fact we were walking down
the street on our way over to this building and I asked
him how a person with substantial assets could possibly
attempt to get the Court of Appeals to waive a $100
filing fee and his response to me was that he hadn't
really lied to the Court of Appeals, because what he
had said in the motion had not been stated under oath. 
That if I would look carefully, I would see that there
was not an affidavit, it was just a bare statement and
that any person has the right to just go into the Court
of Appeals and make a bare statement requesting that
they waive fees.  That was the extent of the
conversation."

That testimony, which we credit, together with the evidence
described above, clearly and convincingly demonstrates that the
accused knew that information about his other assets might be
relevant to consideration of his motions, but consciously decided
to withhold the information.  We conclude that the accused had in
mind that his substantial assets could have influenced the
decision on his motions.  
	Because the accused knowingly failed to disclose to the
Court of Appeals facts that he knew could have affected the
court's decisions on his motions, the accused engaged in
misrepresentation by nondisclosure, in violation of DR 1-102(A)(3).
DR 1-103(C)
	We turn to the Bar's claim that the accused violated DR
1-103(C), which provides:
		 "A lawyer who is the subject of a disciplinary
investigation shall respond fully and truthfully to
inquiries from and comply with reasonable requests of a
tribunal or other authority empowered to investigate or
act upon the conduct of lawyers, subject only to the
exercise of any applicable right or privilege."

In its third cause of complaint, the Bar alleged that the accused
violated DR 1-103(C) by failing to respond fully and truthfully
to Bogardus's inquiries regarding his assets when Bogardus
interviewed the accused over the telephone in September 1996.  In
response to Bogardus's inquiries, the accused stated that he had
only $1,400 in his business account, three parcels of land in
Klamath County, and approximately $100,000 in a retirement
account.  As noted, at the time that Bogardus made his inquiry,
the accused had more than $1 million in assets, several hundred
thousand dollars of which were immediately available to him in
checking accounts.  
	A lawyer who fails to respond fully and truthfully to
an LPRC investigator violates DR 1-103(C).  In re Staar, 324 Or
283, 290, 924 P2d 308 (1996).  Providing an incomplete response
to a request for information during a disciplinary investigation
violates DR 1-103(C).  In re Morin, 319 Or 547, 557, 878 P2d 393
(1994).  
	The accused contends that he did not fail to cooperate
with Bogardus.  He contends that, during the telephone interview,
he expressed to Bogardus his position that personal assets were
not relevant to the possible violations being investigated. 
According to the accused, Bogardus did not express disagreement
with that position to the accused or inform the accused that he
still wanted the information.  Because the accused claims that he
had reason to believe that Bogardus was satisfied with his
response, the accused argues that he did not fail to cooperate
with the Bar.
	In recounting those events, the accused testified as
follows:
	"[Bogardus] called me * * * and asked me questions
about the investigation, the motion, the assets, that
kind of thing.  And I told him what my business assets
were.  And then he was asking me some things about like
real property so I told him some things.  And then he
started inquiring into other things like, any stocks,
bonds, and that kind of thing.  And I said, 'Well I
don't think that's relevant,' because the motion dealt
with business income and that's business assets and
that kind of thing and I didn't think it was relevant.  
   * * * He, after I made that comment he just dropped
it.  That was the end of it.  So I assumed he was
satisfied.  He never relayed to me that he wanted me to
reveal other personal assets after that."

	The testimony of the accused on those matters generally
is consistent with what Bogardus remembered about the interview. 
On direct examination by the Bar, Bogardus testified that the
accused did disclose some personal assets, namely real property
and a retirement account.  Bogardus then testified, "I think I
asked him if he had any other asset at that time and he indicated
to me that he did not." 
	The record establishes, without material contradiction,
that the accused objected to Bogardus's request that the accused
disclose both personal and business income information because,
according to the accused, that information was not relevant to
the question whether he had been honest in seeking waiver of the
filing fee and transcript preparation costs from the Court of
Appeals.  The record also establishes that Bogardus acquiesced in
the accused's objection.  Because Bogardus failed to press his
request for information despite the accused's objection, the
accused had no notice that Bogardus regarded the accused's
relevancy objection and accompanying explanation to be an
insufficient response.
	That is not the end of the matter, however.  If the
accused had confined his response to a simple nondisclosure of
information about his personal assets, consistent with his
objection, the record would not support a conclusion that the
accused had failed to cooperate with Bogardus.  However, the
accused did not simply object and decline to disclose information
about his personal assets.  Instead, the accused told Bogardus
that he had some real estate and approximately $100,000 in a
retirement account, and said that he had no other assets.  The
accused failed to tell Bogardus that he in fact had more than $1
million in personal assets and that he had immediate access to
several hundred thousand dollars of those assets in a checking
account.  Under the circumstances, the representations that the
accused did make to Bogardus about his personal assets were
incomplete and false.  We conclude that the Bar proved that the
accused failed to cooperate with a disciplinary investigation in
violation of DR 1-103(C).  
 SANCTION
	Having determined that the accused violated DR 1-102(A)(3) and DR 1-103(C), we turn to the question of the
appropriate sanction.  As noted, the trial panel suspended the
accused from the practice of law for a period of 18 months.  In
light of this court's subsequent decision in Huffman I, 328 Or
567, the Bar contends that the appropriate sanction here is
disbarment.  The accused asserts that, if the court disagrees
with his arguments that no disciplinary violations occurred, then
a reprimand or a suspension of up to 90 days is the appropriate
sanction.
	This court refers to the American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended 1992)
(ABA Standards) for guidance in determining the appropriate
sanction for lawyer misconduct.  In re Schaffner, 323 Or 472,
478, 918 P2d 803 (1996).  According to ABA Standards 1.1,
		"The purpose of lawyer discipline proceedings is
to protect the public and the administration of justice
from lawyers who have not discharged, will not
discharge, or are unlikely to discharge their
professional duties to clients, to the public, the
legal system, and the legal profession."  

	This court first considers three factors in determining
the appropriate sanction:  the duty violated, the accused
lawyer's mental state, and the actual or potential injury caused
by the accused lawyer's misconduct.  ABA Standard 3.0.  We then
examine any aggravating or mitigating circumstances to determine
if the sanction should be adjusted.  In re Devers, 328 Or 230,
241, 974 P2d 191 (1999); ABA Standard 3.0.  Finally, we look to
Oregon case law.  Devers, 328 Or at 241.
	In this case, the accused violated his duty to the
public to maintain his standards of personal integrity (ABA
Standard 5.0), his duty to the legal system to refrain from
conduct involving misrepresentation (ABA Standard 6.0), and his
duty as a professional to cooperate completely and truthfully
with a disciplinary investigation (ABA Standard 7).  
	As to the accused's mental state, the Bar contends that
he acted intentionally, because he acted with a "conscious
objective or purpose to accomplish a particular result," namely,
to deceive the Court of Appeals and to obtain a benefit to which
he knew he was not entitled.  ABA Standards at 7.  The accused
responds that he was at most "ignorant," as he never before had
filed motions to waive or defer an appellate filing fee or
transcript costs.  He further contends that his decision not to
continue to pursue his motions after receiving the form affidavit
of indigency is inconsistent with an intent to deceive.  
	In filing his motions, the accused clearly acted with
the intent to achieve a particular result, i.e., to avoid paying
filing fees and transcript costs.  Under the definition in the
ABA Standards, the conduct of the accused in misrepresenting
material facts to the Court of Appeals was "intentional."  The
accused also acted intentionally in making inaccurate and
misleading statements about the extent of his personal assets
during the disciplinary investigation.  The accused's argument
that some of his actions were inconsistent with an intent to
deceive misses the mark.  For conduct to be "intentional" under
the ABA Standards definition, the lawyer need not have acted with
a bad state of mind, but only with a state of mind to achieve a
particular result.  ABA Standards at 7.
	We turn to whether the accused's conduct caused injury. 
"Injury" includes actual or potential harm to a client, the
public, the legal system, or the legal profession.  ABA Standards
at 6-7.  The Bar contends that the accused's conduct had the
potential to injure indigent litigants by reducing the limited
funds set aside by the State Court Administrator for access by
those litigants to the legal system.  The Bar also contends that
the accused's conduct in misrepresenting his assets created the
possibility of misleading the Bar.  The accused responds that
there was no actual injury here, because he decided not to pursue
his motions once he received the form affidavit of indigency and
disclosed that he did have substantial personal assets, even if
that disclosure understated his assets.
	We conclude that the accused's conduct in
misrepresenting facts in his motions caused the potential
injuries to the legal system that the Bar cites.  The accused's
motions also caused both the Court of Appeals and the State Court
Administrator to engage in needless work in responding to them. 
To function fairly and efficiently, courts must be completely
confident in the trustworthiness of lawyers who appear before
them.  Greene, 290 Or at 297.  The accused violated that
expectation here.  In effect, the accused attempted to use
misrepresentation to obtain $100, in addition to the amount of
the transcript preparation costs, from the budget of the State of
Oregon.  The accused did mitigate the extent of the potential
injury to some degree by choosing promptly not to pursue the
motions after receiving the affidavit of indigency.
	The accused's failure to cooperate with the
disciplinary investigation also caused both actual and potential
injury to the legal system.  A disciplinary investigation is a
key component of the regulatory system that undergirds the
disciplinary rules.  Lawyers must provide a prompt and fully
accurate response, without reservation, to factual inquiries
submitted by those who investigate ethical complaints on behalf
of the Bar and the LPRC.  The accused's noncooperation, in the
form of a material understatement of his personal assets,
distorted the Bar's information regarding the accused's personal
assets and threatened to undermine the Bar's investigation.  The
accused did mitigate the extent of that injury by acknowledging
to Bogardus that he did possess substantial personal assets
consisting of real estate and a retirement account in the amount
of $100,000.  That disclosure was sufficient to permit the Bar to
complete its investigation of the accused's conduct, despite the
accused's understatement of his personal assets.
	The accused's misconduct implicates several ABA
Standards.  ABA Standard 5.11 provides, in part: 
		"Disbarment is generally appropriate when:


		"* * * * *


		"(b) a lawyer engages in * * * intentional conduct
involving * * * misrepresentation that seriously
adversely reflects on the lawyer's fitness to
practice." 

ABA Standard 5.13 provides:
		"Reprimand is generally appropriate when a lawyer
knowingly engages in any other [noncriminal] conduct
that involves dishonesty, fraud, deceit or
misrepresentation and that adversely reflects on the
lawyer's fitness to practice law."

ABA Standard 6.11 provides:
		"Disbarment is generally appropriate when a
lawyer, with the intent to deceive the court, makes a
false statement, submits a false document, or
improperly withholds material information, and causes
serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse
effect on the legal proceeding."  

ABA Standard 6.12 provides:
		"Suspension is generally appropriate when a lawyer
knows that * * * information is improperly being
withheld, and takes no remedial action, and * * *
causes an adverse or potentially adverse effect on the
legal proceeding."  

ABA Standard 7.1 provides:
		"Disbarment is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a
duty owed as a professional with the intent to obtain a
benefit for the lawyer * * * and causes serious or
potentially serious injury to a client, the public, or
the legal system." 

ABA Standard 7.2 provides:
		"Suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a
duty owed as a professional, and causes injury or
potential injury to a client, the public, or the legal
system."

	The ABA Standards do not indicate clearly that
disbarment is the appropriate sanction for the accused's
misconduct.  However, the ABA Standards, in our view, do indicate
clearly that the accused's misconduct merits a significant
suspension.  We adopt a suspension as our initial determination
of the appropriate sanction in this case.
	We turn to a consideration of aggravating and
mitigating factors.  There are no mitigating factors.  However,
we find several aggravating factors.  The accused acted with a
dishonest and selfish motive, ABA Standard 9.22(b); he engaged in
a pattern of misconduct, ABA Standard 9.22(c); he violated
multiple disciplinary rules, ABA Standard 9.22(d); he engaged in
deceptive practices during the disciplinary process, ABA Standard
9.22(f); he refuses to acknowledge the wrongful nature of his
conduct, ABA Standard 9.22(g); and he has substantial experience
(18 years) in the practice of law, ABA Standards, 9.22(i).  
	Finally, the accused has committed prior disciplinary
offenses for which he was suspended from the practice of law for
two years.  ABA Standard 9.22(a).  See Huffman I, 328 Or 567
(prior disciplinary proceeding).  As this court explained in In
re Jones, 326 Or 195, 200, 951 P2d 149 (1997), "offenses that
have been adjudicated prior to imposition of the sanction in the
current case" are aggravating factors. (5) 
	Prior offenses receive a varying amount of weight as
aggravation, depending on several factors.  See id. (setting out
nonexhaustive list of factors).  The relative timing of the
current offense in relation to the prior offense is a pertinent
factor here.  As explained in Jones, especially important is
"whether the accused lawyer had been sanctioned for the prior
offense before engaging in the offense in the case at bar."  Id.;
see also In re Wyllie, 327 Or 175, 183, 957 P2d 1222 (1998) (that
this court's decision in earlier case was rendered after second
case had been concluded at trial panel level and briefed to this
court diminished significance of prior discipline as aggravating
factor); In re Starr, 326 Or 328, 347, 952 P2d 1017 (1998) (that
events giving rise to prior discipline occurred at roughly same
time as events giving rise to second proceedings somewhat
diminished weight of prior discipline as aggravating factor,
because accused lawyer's acts in second proceeding did not
reflect disregard of an earlier adverse ethical determination). 
In this case, as in Wyllie, this court rendered its decision in
Huffman I after the parties had concluded the present proceeding
at the trial panel level and had briefed this case on appeal to
this court.  Those events took place long after the accused
committed the misconduct at issue in this proceeding.  As a
result, those facts diminish the weight of the accused's prior
offense as an aggravating factor in this proceeding.
	A second pertinent factor is the similarity of the
misconduct at issue to the misconduct at issue in the prior
proceeding.  Jones, 326 Or at 200.  In Huffman I, the accused
violated DR 7-105(A) (prohibiting threatening to press criminal
charges to obtain advantage in a civil matter) and DR 4-101(B)
(prohibiting knowingly revealing or misusing client secrets). 
The dissimilarity between the misconduct in the two proceedings
further diminishes the weight that we place on the prior
misconduct of the accused as an aggravating factor.  
	A third pertinent factor is the relative seriousness of
the prior offenses and resulting sanction.  Jones, 326 Or at 200. 
The offenses and sanction in the prior proceeding involving the
accused were at least moderately serious.  Overall, we give some,
but not substantial, weight to the accused's prior misconduct in
determining the appropriate sanction.  
	We next consider this court's case law.  The sanctions
that this court has imposed in cases involving violations of DR
1-102(A)(3) range from a reprimand, see Boardman, 312 Or at 458
(knowing mental state, potential injury, no aggravating factors,
mitigating factors of lack of prior disciplinary record and lack
of selfish motive), to disbarment, see Devers, 328 Or at 245
(multiple violations of several rules, intentional mental state,
potential serious injury, multiple aggravating factors, including
several prior instances of discipline, and several mitigating
factors); In re Hawkins, 305 Or 319, 327, 751 P2d 780 (1988)
(intentional mental state, substantial actual injury to client
and legal system, several aggravating factors, single mitigating
factor of absence of prior disciplinary record).  
	We have found several cases in which the accused
lawyers made misrepresentations to a court or to Bar
investigators, and otherwise refused to cooperate with a Bar
investigation.  In Wyllie, the accused lawyer made
misrepresentations, including a false statement under oath,
regarding his participation in continuing legal education
activities, and made additional misstatements of fact to an LPRC
investigator who was investigating the matter.  This court
concluded that the accused lawyer had acted intentionally, that
he had caused harm by needlessly triggering a time-consuming Bar
investigation into the truth of his statements, and that several
aggravating factors, but no mitigating factors, were present. 
Wyllie, 327 Or at 182-83.  The facts in Wyllie are analogous to
the facts presented here.  This court in Wyllie imposed a two-year suspension and required the suspension to run consecutively
to the suspension that the accused lawyer already was serving as
the result of an earlier disciplinary proceeding.  Id. at 184. 
See also Staar, 324 Or at 290-93 (imposing two-year suspension
for knowing false statement to court under oath and repeated
failure by accused lawyer to respond to inquiries by Bar and
LPRC; mitigating factors of absence of prior discipline and
mental disability or impairment); In re Brown, 298 Or 285, 297,
692 P2d 107 (1984) (imposing two-year suspension for improperly
advancing money to client; faced with Bar complaint, accused
lawyer created false evidence by obtaining client's affidavit
denying advancement of money). 
	In cases like this one, in which the Bar commenced
proceedings by formal complaint after December 31, 1995, a
suspension may range from 30 days to five years.  BR 6.1(a)(iv). 
This court views a lawyer's intentional misrepresentation to a
court as serious misconduct, In re Page, 326 Or 572, 580, 955 P2d
239 (1998), because courts must be able to rely on the candor,
honesty, and integrity of the lawyers who appear before them. 
Greene, 290 Or at 297; see also Staar, 324 Or at 290-91 (stating
that duty to refrain from intentionally misleading court is one
of the highest duties a lawyer owes to the legal system). 
Consistent with the case law summarized above, we conclude that
the accused's conduct warrants a two-year suspension from the
practice of law.  We also conclude, as this court determined in
Wyllie, that the accused should serve the period of that
suspension consecutively to the suspension that he presently is
serving. 
	The accused is suspended for two years, with the period
of suspension to run consecutively to the period of suspension
imposed on the accused in In re Huffman, 328 Or 567, 983 P2d 534
(1999).




1. 	Although subsequent legislation has modified ORS
21.010(1) (1993), we apply that statute because it was in effect
when the accused acted.

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2.   	ORS 21.605 (1993) provided, in part:
		"(1)(a) [T]he Chief Judge of the Court of Appeals
* * * may waive in whole or in part, defer in whole or
in part, or both, all fees and court costs payable by a
party to a particular civil action or proceeding in the
court of the justice or judge, upon application by the
party, if the justice or judge finds that the party is
then unable to pay all or any part of the fees and
costs.


		"* * * * *
		"(3)(a) If fees and court costs payable by a party
to a civil action or proceeding have been waived or
deferred under subsection (1) of this section, the
[Chief Judge of the Court of Appeals] * * * may order
that the expense of preparing the record and transcript
on appeal be waived in whole or in part, deferred in
whole or in part, or both."
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3. 	The Bar's first cause of complaint alleged that the
accused violated DR 1-102(A)(3), DR 7-102(A)(7), and ORS 9.527(4)
by attempting to convert assets to his own use with the intent of
defeating lien holders.  The trial panel found in favor of the
accused on that cause of complaint, and the Bar does not
challenge that determination before this court.  

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4. 	The accused made the additional argument before the
trial panel that he had not read either ORS 21.605, quoted above,
or ORCP 17, which discusses the legal significance of a lawyer's
signature on documents.  He does not renew that argument here.

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5. 	As this court observed in In re Cohen, 330 Or 489, 499
n 7 (2000), use of the term "adjudicated" in this context is not
strictly accurate, because letters of admonition, although not
"adjudicated," may be  considered as part of the "prior record"
of an accused lawyer.
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