Filed: September 26, 2002

In re: Complaint as to the Conduct of

VIRGIL E. DUGGER,

Accused.

En Banc

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

Argued and submitted May 13, 2002.

Thomas H. Tongue, Dunn Carney Allen Higgins & Tongue LLP, Portland, argued the cause and filed the brief for the accused. With him on the brief was Brenda K. Baumgart.

Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. With her on the brief was John M. Junkin, Bullivant Houser Bailey PC, Bar Counsel, Portland.

PER CURIAM

The accused is suspended from the practice of law for nine 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) charged the accused with violating Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(4) (engaging in conduct prejudicial to administration of justice); DR 5-101(A)(1) (continuing representation when professional judgment was or reasonably may have been affected by lawyer's own financial, business, property, or personal interests); DR 5-101(B) (prohibiting lawyer from preparing instrument giving lawyer or person related to lawyer significant gift from client); DR 7-102(A)(2) (knowingly advancing claim unwarranted under existing law); DR 7-110(B)(2) (communicating with judge about merits of case in writing without promptly delivering copy to opposing counsel or party); and DR 7-110(B)(3) (engaging in ex parte communication with court without notice to opposing counsel). A trial panel of the Disciplinary Board concluded that the accused had violated some, but not all, of those rules and suspended him from the practice of law for nine months.

This court's review is automatic, Bar Rule of Procedure (BR) 10.1, and we review the decision of the trial panel de novo, ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by "clear and convincing evidence," BR 5.2, which means evidence establishing that the truth of the facts asserted is highly probable, In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). Although this court's review is de novo, we generally give weight to the trial panel's credibility findings. In re Trukositz, 312 Or 621, 629, 825 P2d 1369 (1992). For the reasons that follow, we conclude that the accused violated DR 1-102(A)(3), DR 1-102(A)(4), and DR 7-110(B)(2) and (3), and we conclude that the appropriate sanction is a nine-month suspension from the practice of law.

I. FACTS AND DISCUSSION

The accused, a sole practitioner, was admitted to the Bar in 1962. His practice includes criminal defense, personal injury, domestic relations, probate, and bankruptcy. The Bar's charges in this case stem from the accused's conduct in connection with the three matters described below.

A. Mantow Matter

Mantow lived near the accused's office and began going to the accused's office to visit in the mid-1970s, probably because he and the accused had mutual friends. Mantow and the accused talked about gardening and books, and reminisced about other matters of common interest, such as World War II. Mantow and the accused sometimes went out for coffee, and Mantow occasionally brought flowers from his garden for the accused's office. The accused enjoyed visiting with Mantow, because Mantow was a "very interesting person" who remained interested in life. Because of his friendship with Mantow, the accused "would do just about anything for the old gentleman."

The accused did not represent Mantow in any legal matters until December 1987, when Mantow paid the accused $225 to start a file to investigate pursuing a claim on Mantow's behalf regarding an investment that Mantow had made in a company that had gone bankrupt. Mantow wrote additional checks to the accused between 1988 and 1992 for the accused's efforts to recover some of Mantow's investment in the bankrupt company.

During the time that the accused knew Mantow, Mantow became "paranoid" about people stealing from his bank accounts. Mantow believed that having a second signature on the accounts would make it more difficult for others to withdraw money from them. Mantow asked the accused to cosign on several of the accounts, and the accused did so.Ex 2, Higgins letter The accused expressed concern to Mantow about the ramifications of having the accused's name on the accounts, and he told Mantow that Mantow should "look into it." The accused believed that Mantow had a lawyer, because Mantow had talked to the accused about his lawyer on various occasions. The accused also believed that Mantow had talked to bank personnel after the accused told Mantow that the accused was concerned about the ramifications of having the accused's signature on Mantow's accounts. The accused did not believe that he was entering into a business relationship with Mantow by signing the cards, and the accused did not believe that Mantow was well-off financially.

Mantow died on April 28, 1996. His will, which another lawyer, Holmes, had drafted in January 1988, left his entire estate to members of Mantow's family. Shortly after Mantow died, Vice, Mantow's nephew and the personal representative of Mantow's estate, went to the accused's office to talk to the accused. At that time, the accused learned that there was approximately $115,000 in Mantow's bank accounts. During Vice's visit and thereafter, the accused maintained that he did not claim to be entitled to the money in the accounts and that he was concerned only about the ramifications of having his name on the signature cards.

Because Mantow's bank accounts had so much money in them, the accused decided that he needed legal advice from a probate lawyer. The accused called Cartwright, whose practice emphasizes probate matters. The accused followed up his telephone conversation with a letter to Cartwright on June 11, 1996. In that letter, the accused explained his relationship with Mantow and that Mantow had asked the accused to cosign on some bank accounts, and concluded by stating that the accused did "not know why [Mantow] set up the accounts as he did, and your thoughts on this situation will be greatly appreciated." The accused also told Cartwright that the accused was not interested in having the money in the accounts but that he did not know what Mantow had intended. Cartwright explained to the accused that, under former ORS 708.616(1) (1995), repealed by Or Laws 1997, ch 631,