See, e.g., In reArbuckle, 308 Or. 135, 139, 775 P.2d 832 (1989). In determining the appropriate sanction for lawyer misconduct, we examine four factors: (a) the nature of the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury resulting from the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.
In the Cooper matter, the accused injured the Coopers by delaying their adoption and by failing to maintain contact with them. See, e.g., In re Arbuckle, 308 Or. 135, 140 775 P.2d 832 (1989) (injury to client in lawyer disciplinary case measured in terms of "time, anxiety, and aggravation" spent in trying to coax cooperation from accused lawyer). The Coopers and Sifuentez also were subject to the potential for injury as adverse parties who were represented simultaneously by the accused in separate matters.
Further, because the accused failed to act in his client's behalf and resisted her repeated attempts to contact him, we conclude that the client suffered actual injury in the form of anxiety and frustration. See In re Arbuckle, 308 Or. 135, 140, 775 P.2d 832 (1989) (concluding that injury to a client in the form of time expended, anxiety, and aggravation constitutes injury under the ABA Standards). In failing to respond to the Bar's initial inquiries, the accused also caused injury to the legal profession and to the public.
The mitigating factors do not outweigh the aggravating factors, even though lack of a prior disciplinary record is a strong mitigating factor. Bar counsel relies on In re Arbuckle, 308 Or. 135, 775 P.2d 832 (1989), to support the Bar's position that failure to appear at the trial panel hearing is an aggravating factor. We disagree. Arbuckle states:
Client anguish, uncertainty, anxiety, and aggravation are actual injury under the disciplinary rules. See In re Paulson, 346 Or 676, 717, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41 (2010) (anguish and uncertainty are actual injury); In re Jones, 312 Or 611, 618, 825 P2d 1365 (1992) (client anxiety and aggravation are actual injury); In reArbuckle, 308 Or 135, 140, 775 P2d 832 (1989) (same). We find that the accused's actions caused actual injury to his client.
But from that lawyer's description of the circumstances, the trial panel concluded that the client suffered additional actual injury in the form of "significant anguish and uncertainty" as a result of the accused's conduct. See In re Jones, 312 Or at 618 (client anxiety and aggravation is actual injury); In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989) (same). We agree with the trial panel that, in the Loucks child custody matter, the injuries to the client were both actual and serious.
However, the accused's repeated failure to respond to her clients' reasonable requests did result in injuries to her clients, "measured in terms of time, anxiety, and aggravation, in attempting to coax cooperation from the accused." In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989). Finally, the legal system suffered an injury as a result of the accused's failure to provide the requested information in the course of this disciplinary proceeding: the Bar unnecessarily expended resources in seeking to obtain the information.
A lawyer violates the rule by failing to return a client's files or other documents of importance to the client when asked to do so. See In re Devers, 317 Or. 261, 265, 855 P.2d 617 (1993) (concluding lawyer violated rule by failing to return client files when asked); In re Spies, 316 Or. 530, 534-35, 852 P.2d 831 (1993) (quoting In re Arbuckle, 308 Or. 135, 138, 775 P.2d 832 (1989) which explains that "client is entitled to the return of the client's property upon demand"). The trial panel concluded, without explanation, that the accused did not violate this rule.
In Chandler, aggravating factors were two prior disciplinary proceedings and a pattern of neglect. In In re Arbuckle, 308 Or. 135, 775 P.2d 832 (1989), this court imposed a two-year suspension on a lawyer who failed to account for the client's property and failed to acknowledge or respond to any requests or inquiries by the Bar in connection with its investigation of the client's complaint. In light of the ABA Standards, in light of this court's precedents, and having particular regard for the significance of the accused's professional misconduct and the many aggravating factors, we conclude that a three-year suspension from the practice of law is an appropriate sanction for the accused's misconduct.
We agree with the trial panel that the accused's continued failure over a period of several years to return Cook's file violated DR 9-101(B)(4).See In re Arbuckle, 308 Or. 135, 138, 775 P.2d 832 (1989) (unless lawyer is exercising valid lien rights in client's property, client is entitled to return of property upon demand). DR 9-101 provides, in part: