FILED:  December 15, 2005
IN THE SUPREME COURT OF THE STATE OF OREGON
In Re Complaint as to the Conduct of
GRAEME H. STRICKLAND, JR.,
Accused.
(OSB 04-32; SC S52490)
En Banc
On review of the decision of a trial panel of the
Disciplinary Board.
Argued and submitted November 1, 2005.
Graeme H. Strickland, Jr., Lake Oswego, argued the cause and
filed the briefs for himself.
Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego,
argued the cause and filed the brief for the Oregon State Bar.  
PER CURIAM
The accused is suspended from the practice of law for a
period of one year, commencing 60 days from the date of filing of
this decision.
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon
State Bar charged the accused with violating ORS 9.527(2) and
Oregon Code of Professional Responsibility Disciplinary Rules
(DR) 1-102(A)(2) and DR 1-102(A)(3). (1)  Those charges stemmed
from the accused's criminal convictions for improper use of the
emergency reporting system, ORS 165.570; initiating a false
report, ORS 162.375; and disorderly conduct, ORS 166.025.  A
trial panel of the Disciplinary Board concluded that the accused
was guilty of all charges, and it imposed a three-year suspension
from the practice of law.  The accused sought review pursuant to
ORS 9.536(1).  We review bar disciplinary matters de novo.  ORS
9.536(2); BR 10.6. 
I. FACTS
The accused is licensed in four states and has been a
member of the Bar since 1973.  During most of that time, he
worked for the Oregon Employment Department as a hearings officer
and for the Oregon Court of Appeals as a part-time mediator.  The
only case that he handled as a lawyer representing a client in
the last 10 years concluded in 2001.  The accused represented his
mother in that case.
We find that the Bar has proved the following facts by
clear and convincing evidence.  In August 2002, the accused
learned that the City of Lake Oswego (city) was planning to build
a reservoir across the street from the house where he lives with
his mother.  During the remainder of 2002 and the first part of
2003, the accused observed the construction workers, took
pictures, and recorded notes in a journal.  In October, he wrote
several letters to the city's attorney and the city's contractor,
Emery Construction, putting them "on notice," presumably of a
potential tort claim.  The letters increased both in urgency and
frequency.  The record reflects that, in February and March 2003,
the accused wrote at least 10 separate letters, complaining of
disturbances from the construction workers, including noise,
vibrations, a nail left in the road, and a truck parked in front
of his mailbox.  In the final three letters of March 2003, the
accused complained that Emery workers were "retaliat[ing]"
against him.  
On the morning of March 31, 2003, the accused felt
vibrations in his home that he associated with the nearby
construction work.  He drove several blocks to a nearby
intersection to observe the construction and parked his car in
the middle of that intersection.  An Emery worker asked him to
move because he was parked in a work zone. (2)  Rather than
moving the car, the accused left the car in the intersection and
walked back to his home.
On arriving home, the accused dialed 911, and the
following conversation ensued:  

"[Dispatcher]: Nine, one, one * * * police, fire or
medical?
"[Accused]: I'm at Spruce and Larch Street in Lake
Oswego, I need some police quick.
"[Dispatcher]: Well what's the problem there[,] sir?
"[Accused]: I've been, vehicles have surrounded me,
construction vehicles, I need some help
quick.
"[Dispatcher]: Okay, construction vehicles have
surrounded you?
"[Accused]: Yeah, at Spruce and Larch.
"[Dispatcher]: What do you mean, surrounded you?
"[Accused]: That's exactly what I said, just get
some police up here quick.
"[Dispatcher]: Sir, is anybody there threatening you?
"[Accused]: Yes.
"[Dispatcher]: Threatening in what way?
"[Accused]: Told me to get the hell out of the, told
me I was blocking the road construction
site, I'm at, I'm at, Larch and Aspen
get the hell up here quick.
"[Dispatcher]: I, sir, we're getting somebody on the
way.
"[Accused]: Thank you[.]
"[Dispatcher]: Is there any thing physical that has
occurred[?]"

The transcript indicates that the conversation then ended.
The accused then returned to the intersection, where an
Emery worker, Atiyeh, was walking down the street intending to
speak to his foreman about the accused.  Atiyeh's hands were in
his pockets.  When Atiyeh passed the accused, the accused
carefully set his camera on the ground and lunged at him.  The
accused, who made no physical contact with Atiyeh, fell backwards
to the ground and began screaming that his back was injured.  
A Lake Oswego police officer arrived, with sirens and
lights flashing, to find the accused on the ground screaming. 
The accused told the officer that Atiyeh had assaulted him and
thrown him to the ground, injuring his back.  The officer
notified him that making a false police report is a criminal act. 
The accused persisted in his story and refused to leave.
Paramedics then arrived.  The accused told them that
Emery workers had assaulted him.  The accused then appeared to
have a seizure, stiffening and trembling.  Immediately
thereafter, he sat up, appeared alert, and said that he was going
home.  The attending paramedic believed that the accused had
feigned the seizure because such rapid recovery is not consistent
with seizures.  However, because the paramedics could not
determine what was happening, and because the accused continued
to state that he was in pain, they transported the accused to the
emergency room.  Doctors there found no evidence of physical
injury.  
In connection with the above events, the accused was
charged with and convicted by a jury of three misdemeanors in
Lake Oswego Municipal Court:  violation of ORS 165.570 (improper
use of emergency reporting system), (3) ORS 162.375 (initiating
a false report), (4) and ORS 166.025 (disorderly conduct). (5)  The
accused appealed to the circuit court, where another jury found
him guilty. 
The accused reported his convictions to the
Bar. (6)  The Bar charged him with violating ORS
9.527(2), DR 1-102(A)(2), and DR 1-102(A)(3) as to each of the
three crimes.  The accused stipulated that his convictions for
initiating a false report and for disorderly conduct constituted
violations of the statute and the rules, but he disputed the
Bar's claim that his conviction for improper use of the emergency
reporting system provided a basis for disciplinary action.  The
trial panel determined that the accused had committed all of the
violations that the Bar had charged and imposed a three-year
suspension.
II. ANALYSIS OF VIOLATIONS
As the trial panel noted, the accused stipulated at the
disciplinary hearing that his convictions for initiating a false
report and disorderly conduct violate DR 1-102(A)(2) and (3).  We
accept that stipulation and consider only the appropriate
sanction for those violations.  In re Murdock, 328 Or 18, 24 n 1,
968 P2d 1270 (1998) (considering only the appropriate sanction
when an accused stipulated to the charged violations).  We now
address whether the accused's conviction for violating ORS
165.570, improper use of the emergency reporting system, also
violated those disciplinary rules.
DR 1-102(A)(2) provides that it 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."  The accused's conviction for violating ORS
165.570 is clear and convincing evidence that he committed a
"criminal act."  A lawyer's criminal act does not violate DR 1-102(A)(2) unless there is "some rational connection other than
the criminality of the act between the conduct and [the lawyer's]
fitness to practice law."  In re White, 311 Or 573, 589, 815 P2d
1257 (1991).  We determine whether that "rational connection"
exists by considering the lawyer's mental state, the extent to
which the act demonstrates disrespect for the law or law
enforcement, the presence or absence of a victim, the extent of
actual or potential injury to a victim, and whether the act is
part of a pattern of criminal conduct.  Id. 
Several of those factors are particularly relevant
here.  First, we note that the conviction required that the
accused at least have acted knowingly.  A criminal defendant acts
"knowingly" when he "acts with an awareness that [his conduct] is
of a nature so described or that a circumstance so described
exists."  ORS 161.085(8).  In other words, the accused's
conviction demonstrates, at a minimum, that the accused
understood that he was using the 911 system to report activities
that he did not reasonably believe required prompt emergency
service "in order to preserve life or property."  ORS 165.570(1). 
Second, the accused showed disrespect for law enforcement by
summoning law enforcement officers on false pretenses.  Third,
misuse of the 911 system was part of a pattern of criminal
conduct because the accused summoned the police in order to
deliver a false report, another criminal act.  On that basis, we
find that the evidence in the record shows a "rational
connection" between the accused's conviction for improper use of
the emergency reporting system and his fitness to practice law. 
Therefore, we conclude that that conviction violated DR 1-102(A)(2).
DR 1-102(A)(3) provides that it is professional
misconduct for a lawyer to "[e]ngage in conduct involving
dishonesty, fraud, deceit or misrepresentation."  When the
accused called the 911 operator, he described himself as being
currently "surrounded" by construction vehicles.  He said that
the construction workers were "threatening" him, and he conveyed
the impression that they were about to use physical violence
against him.  None of those things was true.  The record
establishes that no threats occurred and that, at the time that
he placed the call, the accused was safely in his own home,
blocks away from the construction site.  We find by clear and
convincing evidence that the accused engaged in conduct involving
dishonesty in violation of DR 1-102(A)(3).
III.  SANCTION
We have determined that the accused violated DR 1-102(A)(2) and DR 1-102(A)(3). (7)  We now consider the
appropriate sanction.  In determining a sanction, this court
refers to the American Bar Association's Standards for Imposing
Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and this
court's case law.  The ABA Standards consider the duty that the
accused lawyer violated, his mental state, the extent of any
actual or potential injury caused by the accused, and any
applicable aggravating and mitigating factors.  We also consider
this court's prior case law.
A. Duty Violated
The accused violated his duty to the public to maintain
personal integrity.  ABA Standard 5.1. 
B. The Accused's State of Mind
As the statutes quoted above make clear, convictions
for false reporting and improper use of the emergency reporting
system require at least a "knowing" state of mind.  An accused
acts knowingly under the ABA Standards when he has "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 17.  The Oregon criminal
standard for a "knowing[]" mental state articulated in ORS
161.085(8) and the ABA standard for "knowing" conduct describe
the same state of mind.  Therefore, as to the convictions for
false reporting and improper use of the emergency reporting
system, the record establishes that the accused acted with at
least a knowing state of mind.
ORS 166.025 provides, in part, that a defendant commits
disorderly conduct if he "[i]nitiates or circulates a report,
knowing it to be false, concerning an alleged or impending * * *
emergency" with "intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof[.]"  The
accused's criminal complaint clarifies that he was charged with
"recklessly creating a risk" of public inconvenience, not with
intentionally causing a public inconvenience.  For the purpose of
Oregon criminal statutes, a person acts "recklessly" when that
person "is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists."  ORS 161.085(9).  The ABA Standards do not
recognize a "reckless" state of mind, but that state, as defined
above, is most similar to "negligence" as defined by the ABA
Standards.  The standards define "negligence" as "the failure of
a lawyer to heed a substantial risk that circumstances exist or
that a result will follow, which failure is a deviation from the
standard of care that a reasonable lawyer would exercise in the
situation."  ABA Standards at 7.  Therefore, in carrying out the
acts that led to his conviction for disorderly conduct, the
accused's conviction itself establishes that the accused at least
acted "negligently" for purposes of the sanctions determination.
However, neither of the disciplinary rules that the
accused violated requires us to limit our analysis of his mental
state to the text of the accused's criminal complaint for the
underlying crimes.  DR 1-102(A)(3) requires no underlying
criminal conviction at all.  DR 1-102(A)(2) requires a "criminal
act," which, as we have stated before, is not the same as a
criminal conviction.  See In re Allen, 326 Or 107, 120, 949 P2d
710 (1997) ("Under DR 1-102(A)(2), the court examines the
accused's criminal act, not a criminal conviction.").  Therefore,
if the Bar proves by clear and convincing evidence at a hearing
that the accused acted with a more culpable mental state than his
crimes of conviction required, then the trial panel, and this
court on review, may base the sanction on that more culpable
mental state.
The ABA Standards define "intent" as "the conscious
objective or purpose to accomplish a particular result."  ABA
Standards at 7.  In this case, we find that the accused acted
with intent when he violated DR 1-102(A)(2) and DR 1-102(A)(3). 
The many letters that the accused sent to the city and Emery
prior to March 31, 2003, show that he was upset about the
construction and that he was preparing to sue the city and Emery
Construction.  His actions to document the progress of the
construction through photographs and journal notes, while not
blameworthy behavior of themselves, further suggest that the
accused was preparing for legal action against those parties.  On
March 31, he repeatedly lied to emergency personnel about the
nature of his dispute with the Emery workers, the degree of
danger that he faced, the actions of the Emery workers, and his
own medical condition.  He deliberately feigned being assaulted. 
The most likely inference from that evidence is that the accused
had the conscious objective or purpose to lie in order to advance
the lawsuit for which he had been preparing.  In fact, the
evidence in the record bears no other reasonable inference. 
Therefore, we conclude that the accused acted with intent when he
committed criminal acts that "reflect[ed] adversely on [his]
honesty, trustworthiness or fitness to practice law," DR 1-102(A)(2), and that he intentionally "[e]ngage[d] in conduct
involving dishonesty, fraud, deceit or misrepresentation" in
violation of DR 1-102(A)(3).
C. Potential or Actual Injury Caused by the Accused's
Misconduct
The accused's actions caused actual and potential
injury to the city and potential injury to Atiyeh.  The accused
actually injured the city by needlessly inducing it to expend its
resources by sending police and paramedics to the scene.  He
potentially injured the city because, in summoning the city's
limited emergency personnel, he created the risk that the city
would not have the resources to respond to actual emergencies. 
The accused potentially injured Atiyeh by creating the risk that
Atiyeh would be charged with an assault that he did not commit.
D. Preliminary Sanction
A preliminary sanction of disbarment is warranted when
a lawyer engages in "serious criminal conduct, a necessary
element of which includes * * * false swearing,
misrepresentation, [or] fraud * * *," or "any other intentional
conduct involving dishonesty, fraud, deceit or misrepresentation
that seriously adversely reflects on the lawyer's fitness to
practice."  ABA Standard 5.11.  This court has noted that the
listed examples of "serious" criminal misconduct "are of a kind
that pose an immediate threat to the public," in contrast to less
serious offenses such as misrepresenting one's address on a
driver's license application.  In re Flannery, 334 Or 224, 233,
47 P3d 891 (2002).  The accused's crimes here involved conduct
that posed an immediate threat to the public and involved
misrepresentation and fraud.  We therefore conclude that the
accused's actions here involved "serious criminal conduct" and
conduct involving deceit and misrepresentation that seriously
adversely reflects on his fitness to practice. (8)  For that
reason, disbarment is warranted as a preliminary potential
sanction.
E. Aggravating and Mitigating Factors
Next, we consider the applicable aggravating and
mitigating factors.  As to aggravating factors, we agree with the
trial panel that the accused had a dishonest or selfish motive,
and that he fails to acknowledge the wrongful nature of his
conduct. (9)  The trial panel also determined that the sanction
should be enhanced because "the [a]ccused is an experienced
attorney, has practiced law for over thirty years, and is
admitted to practice law in four [s]tates."  The ABA Standards
state that "substantial experience in the practice of law" may be
considered as an aggravating factor.  ABA Standard 9.22(i). 
Although the accused did not have substantial experience
representing clients, he held responsible legal positions,
including working as a hearings officer and mediator, for many
years.  We agree with the trial panel that the accused has
"substantial experience in the practice of law."  However, we
disagree with the trial panel's reliance on the fact that the
accused is admitted to practice in four states as tending to
prove "substantial experience."  That fact adds nothing to the
evidence as to the accused's actual experience working on legal
matters. 
We also find the accused's multiple offenses to be an
aggravating factor under ABA Standard 9.22(d).  The accused
committed three separate violations of DR 1-102(A)(2) and three
separate violations of DR 1-102(A)(3) -- one violation of each
rule for each of his three criminal convictions.  More
importantly, those violations were not simply the result of
multiple charges brought by the Bar regarding a single act by the
accused.  Rather, the accused's false 911 call was separated in
time and place from his subsequent feigned injury and his false
accusations of Atiyeh.  The accused engaged in several distinct
acts, each of which constituted a separate violation of the
disciplinary rules, and those multiple violations are an
aggravating factor for sanctions purposes.  Compare In re Summer,
338 Or 20, 41, 105 P3d 848 (2005) (accused did not commit
multiple offenses; instead, he committed "one bad act that [was]
charged under multiple rules").
The trial panel found no mitigating factors.  We find
several.  The accused has no prior disciplinary record, and he
made a full and free disclosure of his criminal convictions to
the disciplinary board.  ABA Standard 9.32(a), (e).  In addition,
the accused has received other penalties or sanctions have been
imposed on the accused for his misconduct:  He paid a fine of
$1,760, and he served a brief period in jail.  ABA Standard
9.32(l) (amended 1992).  
The accused urges us to consider, as an additional
mitigating factor, the future reciprocal discipline from the
other states in which he is admitted.  He cites Summer as an
example of a case in which this court considered future pending
discipline in another jurisdiction.  338 Or at 41.  That portion
of Summer is distinguishable because, in that case, the pending
out-of-state discipline was an original proceeding brought by the
Idaho Bar.  In this case, the pending discipline to which the
accused refers is reciprocal discipline that other jurisdictions
may impose based on the discipline imposed in this proceeding. 
Therefore, we decline to consider pending reciprocal discipline
as a mitigating factor here.
F. Case Law
Finally, we turn to this court's case law.  The
sanctions for cases in which an accused has violated DR 1-102(A)(2) or (3) vary greatly.  Compare In re Albrecht, 333 Or
520, 42 P3d 887 (2002) (disbarment) with In re Kimmell, 332 Or
480, 31 P3d 414 (2001) (six-month suspension).  Although each
case stands on its own facts, a review of the cases indicates
that several factors have influenced this court in determining
the appropriate sanction for violations of those rules.  Greater
sanctions have been imposed when an accused lawyer has violated
multiple rules.  See, e.g., Albrecht, 333 Or 520 (accused
disbarred for violating four separate disciplinary rules); In re
Leonhardt, 324 Or 498, 930 P2d 844 (1997) (accused disbarred for
violating nine separate disciplinary rules).  Sanctions also have
been greater when an accused lawyer has lied under oath or to a
tribunal.  See, e.g., In re Gustafson, 333 Or 468, 41 P3d 1063
(2002) (accused lied under oath to a juvenile court regarding her
compliance with a subpoena); Leonhardt, 324 Or 498 (accused, a
prosecutor, disbarred after lying to a grand jury and in her
testimony in a criminal trial).
The facts in this case are most similar to those in
Summer and In re Davenport, 334 Or 298, 49 P3d 91 (2002).  In
Summer, the accused lawyer fraudulently attempted to recover
twice from separate insurers for his client's injuries.  An Idaho
jury convicted him of attempted grand theft by deception.  This
court found that, in committing that crime, the accused had
violated DR 1-102(A)(2) and (3) and DR 7-102(A)(5); that his
mental state had been intentional; and that he had acted with a
dishonest motive.  This court suspended the accused from the
practice of law for 180 days.
In Davenport, the accused lied under oath in a
deposition and asserted the lawyer-client privilege when he knew
that it did not apply.  This court determined that, although the
accused had not been convicted of a crime, he had committed a
"criminal act" by making a false material declaration under oath. 
The court concluded that the accused had violated DR 1-102(A)(2),
(3), and (4), and DR 7-102(A)(5); that the accused had acted
intentionally; and that he had acted with a dishonest motive,
among other aggravating factors.  This court suspended the
accused from the practice of law for two years.
In our view, this case falls somewhere between Summer
and Davenport.  Like the accused in Summer, the accused here
committed criminal acts involving dishonesty, but he did not lie
under oath or before a tribunal.  However, the accused's conduct
here caused actual as well as potential injury, while the
misconduct in Summer caused potential injury only.  Moreover, as
previously noted, the accused committed multiple offenses, while
the accused in Summer committed a single bad act.  The facts here
support a more severe sanction than in Summer, and we conclude
that a one-year suspension is appropriate.
The accused is suspended from the practice of law for a
period of one year, commencing 60 days from the date of filing of
this decision.


1. The Oregon Rules of Professional Conduct became effective
January 1, 2005. Because the conduct at issue here occurred
before that date, the Oregon Code of Professional Responsibility
applies.
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2. The parties dispute whether the accused actually parked in
the work zone or whether he parked adjacent to it.  We need not
decide that factual question, because it does not affect our
analysis of the alleged violations in this case.
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3. ORS 165.570 provides, in part:

"(1) A person commits the crime of improper use of
an emergency reporting system if the person knowingly:
"(a) Calls a 9-1-1 emergency reporting system * *
* for a purpose other than to report a situation that
the person reasonably believes requires prompt service
in order to preserve human life or property[.]"

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4. ORS 162.375(1) provides, in part:

"A person commits the crime of initiating a false
report if the person knowingly initiates a false alarm
or report which is transmitted to a fire department,
law enforcement agency or other organization that deals
with emergencies involving danger to life or property."

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5. ORS 166.025 provides, in part:

"(1) A person commits the crime of disorderly
conduct if, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk
thereof, the person:
"* * * * * 
"(f) Initiates or circulates a report, knowing it
to be false, concerning an alleged or impending fire,
explosion, crime, catastrophe or other emergency[.]"

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6. The accused also reported his convictions to the state bars
of each of the other three states where he is licensed. 
According to the accused, those jurisdictions intend to impose
reciprocal discipline based on the outcome of this proceeding.
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7. The Bar also charged the accused with violating ORS
9.527(2).  We do not consider that alleged violation because, as
this court has stated before, "the Bar no longer should charge
violations of ORS 9.527, at least in circumstances in which the
acts allegedly constituting the statutory violation also would
constitute the violation of a disciplinary rule."  In re
Albrecht, 333 Or 520, 542, 42 P3d 887 (2002) (declining to
address alleged violation of ORS 9.527(4)); see also In re
Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (declining to address
alleged violation of ORS 9.527(1)).  In this case, the trial
panel found the accused guilty of violating ORS 9.527(2), but it
did not use that determination to enhance the sanction because
the same conduct also constituted a violation of other
disciplinary rules.
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8. The accused admitted before the trial panel that he
undertook the culpable conduct here in his capacity as a lawyer
representing his mother, not as a private individual.  The fact
that the accused considered deceit and misrepresentation to be
appropriate tools in a legal representation casts serious doubt
on his fitness to practice law.
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9. The aggravating factor of failing to acknowledge wrongful
conduct cannot be used to penalize an accused simply for
defending himself against disciplinary charges.  In re Davenport,
334 Or 298, 321, 49 P3d 91 (2002).  Here, however, the accused's
behavior went far beyond mounting a vigorous defense against the
disciplinary charges.  The accused acknowledged the factual
accuracy of the Bar's complaint in nearly all material respects,
but he claimed (and still claims) that that conduct was not
blameworthy.  Under those circumstances, the Bar is correct that
the accused has failed to acknowledge the wrongful nature of his
conduct.
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