FILED: September 13, 2001

In re Complaint as to the Conduct of

J. MARK LAWRENCE,

Accused.

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

Argued and submitted May 3, 2001.

Paula J. Lawrence, Lawrence & Houser, P.C., McMinville, argued the cause and filed the brief for the accused.

Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.*

PER CURIAM

The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the date of filing of this decision.

*Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case.

PER CURIAM

In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with violating various disciplinary rules of the Code of Professional Responsibility and with violating one statute. The trial panel found that the accused violated Disciplinary Rule (DR) 5-101(A)(1) (continuing employment without full disclosure when exercise of judgment on behalf of client is or may be affected by business, property, or personal interests), dismissed the other charges, and reprimanded him. The Bar and the accused both sought review in this court. ORS 9.536(1); Bar Rule of Procedure (BR) 10.1 and BR 10.3. In addition to the DR 5-101(A)(1) violation, the Bar continues to allege that the accused violated DR 1-102(A)(2) (committing criminal act reflecting adversely on lawyer's honesty, trustworthiness, or fitness to practice law) and ORS 9.460(1) (failing to support constitution and laws of the United States and this state) when he failed to timely file state and federal tax returns. (1)

We consider the matter de novo and may adopt, modify, or reject the decision of the trial panel. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. For the reasons that follow, we find that the accused violated DR 1-102(A)(2) and DR 5-101(A)(1), and that a 60-day suspension is the appropriate sanction.

I. FACTS

We find the following facts by clear and convincing evidence. The accused has been a member of the Bar since 1989. After he was admitted to practice, the accused worked as a deputy district attorney until 1992. In 1992, the accused opened his own law office as a sole practitioner. His practice was not lucrative financially, and he entrusted the bookkeeping for his law practice to his mother, Hohman, who lives in Colorado. Hohman is not a licensed tax preparer, and the accused did not pay her for her bookkeeping services. The accused sent Hohman the original documents she needed to keep the books for the accused's law practice. The accused did not retain photocopies of the documents for purposes of preparing his tax returns, and he did not expect Hohman to prepare the tax returns for him.

In early 1993, the accused called Hohman, asking her to send him the documents he needed to file his 1992 tax returns. Hohman had not yet completed the accused's bookkeeping for that year, but she told the accused not to worry about his taxes because she guessed that he had not made enough money to owe taxes that year. The accused received an extension of time until August 1993 to file his 1992 tax returns, but he failed to file his 1992 tax returns by that deadline. Hohman did not return any records that the accused had requested in 1993.

Hohman eventually told the accused that she planned to finish the accused's bookkeeping records for 1992 and 1993 by April 1994. However, in early 1994, Hohman's computer failed, and she was unable to recover any information from it. At that time, Hohman was working full time as a bookkeeper for three business customers who were paying clients. The accused's bookkeeping was her lowest priority while she reconstructed the files she had lost when her computer failed.

The accused called Hohman a number of times in 1994, asking her to return to him the records he had sent to her. The accused explained to Hohman that he needed to file his tax returns. The accused thereafter missed the April 15, 1994, filing deadline for his 1993 taxes. Late in October 1994, the accused stopped sending Hohman his business records because "it was not working." Hohman again promised to send the accused his business records in time for him to file his tax returns for 1992, 1993, and 1994 by April 15, 1995. However, by early April 1995, Hohman had returned only some of the accused's records.

On or about April 1, 1995, the accused gave what records he had to his licensed tax preparer. Thereafter, the tax preparer told the accused that much of the documentation he needed to prepare the accused's tax returns was missing. The accused again called Hohman, asking her to find and return the missing records. Hohman told the accused that she thought she had sent him everything. The accused thereafter received an extension until October 1995 to file his 1994 tax returns, but he missed that filing deadline. In late 1995, the accused's sister found the missing records in a storage unit that Hohman had rented. When the accused received the records, he gave them to his tax preparer.

In January 1996, the tax preparer completed the accused's tax returns for 1992, 1993, and 1994. The accused paid all taxes due, as well as late fees and accumulated interest for those years. The Internal Revenue Service and the Oregon Department of Revenue took no criminal action against the accused for his untimely filings.

The tardy filings came to the attention of the Bar after the accused testified under oath at a judgment debtor examination in September 1995 that he had not filed any state or federal tax returns for the years 1992, 1993, or 1994. The debtor examination had arisen out of the accused's representation of Rabon in a dissolution matter that forms the basis of one of the Bar's complaints against the accused. In representing Rabon, the accused failed to file a timely response, and the trial court entered a default judgment against Rabon. The accused moved to set aside the default and arranged for another lawyer, Houser, to represent Rabon. The trial court denied the motion to set aside the default judgment. Houser thereafter told both the accused and Rabon that, in his opinion, Rabon had a viable legal malpractice claim against the accused for having allowed the default judgment to be taken.

The accused continued to represent Rabon for several months on child support and visitation matters, without making full written disclosure to Rabon of the possibility that his own interests in avoiding a malpractice claim might affect his professional judgment. However, the accused did obtain a written release from Rabon providing that the accused would continue to handle Rabon's dissolution and child support matters for no fee in exchange for Rabon giving up any malpractice claim. The trial court thereafter denied contempt and support modification motions that the accused had filed on Rabon's behalf and imposed sanctions on the accused and Rabon jointly and severally, in the amount of $1,500. When the accused did not pay the sanction, opposing counsel filed the judgment debtor examination against the accused. It was during that examination that the accused disclosed that he had not filed tax returns for 1992, 1993, and 1994.

On December 14, 1995, the State Professional Responsibility Board referred both the Rabon and tax matters to the Local Professional Responsibility Committee for investigation. The Bar filed its first formal complaint against the accused on March 4, 1997, more than a year after the accused had paid all back taxes, penalties, and interest. The Bar amended its complaint twice, and the charges were not heard until January 26 and 27, 1999. The trial panel issued its decision on August 16, 1999, which, as noted, found the accused had violated DR 5-101(A)(1) and imposed a public reprimand.

II. ALLEGED VIOLATIONS

A. DR 1-102(A)(2)

In its first cause of complaint, the Bar alleges that the accused "knowingly and willfully" failed to file personal tax returns timely for the years 1992, 1993, 1994, thereby violating DR 1-102(A)(2). That rule provides:

"It is professional misconduct for a lawyer to:

"* * * * *

"(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.]"

To find a violation of DR 1-102(A)(2), the Bar must present clear and convincing evidence that the accused committed a criminal act and that the act reflects adversely on the accused's honesty, trustworthiness, or fitness to practice law. In re Hassenstab, 325 Or 166, 175-76, 934 P3d 1110 (1997). We may examine any evidence in the record that is relevant to that question. In re Allen, 326 Or 107, 121, 949 P2d 710 (1997). Proof of a conviction is not required to establish a violation of the disciplinary rule. In re Kimmell, 332 Or 480, ___, ___ P3d ___ (August 30, 2001) (slip op. at 6).

The Bar contends that the accused's failure to timely file 1992, 1993, and 1994 federal and state tax returns violated, respectively, two criminal statutes: 26 USC