Though the People urge us to apply this factor, we decline to do so; because Respondent's acts of dishonesty form the basis for the Colo. RPC 8.4(c) rule violation, to apply this factor would be tantamount to "double counting" that same misconduct. Cf. In re Gallagher, 26 P.3d 131, 139 (Or. 2001) (declining to apply an aggravating factor with the same factual basis as an underlying rule violation). Pattern of Misconduct - 9.22(c).
We thus decline to apply this factor.See In re Whitt , 149 Wash.2d 707, 72 P.3d 173, 180 (2003) (finding that submission of false evidence could not be an aggravating factor where the act was also the factual basis for the count of misconduct); In re Gallagher , 332 Or. 173, 26 P.3d 131, 139 (2001) (holding that "the misconduct constituting a [rule] violation should not be the same conduct that justifies applying ABA Standard 9.22(f)" and noting that doing otherwise would be "double-counting" the misconduct against a respondent); see also People v. Olson , 470 P.3d 789, 805 (Colo. O.P.D.J. 2016) (declining to apply ABA Standard 9.22(f) for the lawyer's intentional witness tampering during the disciplinary hearing where that conduct was the basis for rule violations). Refusal to Acknowledge Wrongful Nature of Conduct – 9.22(g) :
See In re Whitt, 72 P.3d 173, 180 (Wash. 2003) (finding that submission of false evidence could not be an aggravating factor where the act was also the factual basis for the count of misconduct); In re Gallagher, 26 P.3d 131, 139 (Or. 2001) (holding that "the misconduct constituting a [rule] violation should not be the same conduct that justifies applying ABA Standard 9.22(f)" and noting that doing otherwise would be "double-counting" the misconduct against a respondent); see also People v. Olson, 470 P.3d 789, 805 (Colo. O.P.D.J. 2016) (declining to apply ABA Standard 9.22(f) for the lawyer's intentional witness tampering during the disciplinary hearing where that conduct was the basis for rule violations). Refusal to Acknowledge Wrongful Nature of Conduct - 9.22(g):
Other courts have turned to similar grammatical reasoning when facing interpretation questions. See, e.g. , In re Conduct of Gallagher , 332 Or. 173, 184, 26 P.3d 131 (2001) (identifying a clause in a disciplinary rule as nonrestrictive "because it is set off by commas," and noting that "[b]ecause it is nonrestrictive, the phrase can be dropped without changing the meaning of the sentence"); Gateway Park, L.L.C. v. Ferrous Realty Ltd. , No. 91082, 2008 WL 5050023, at *6 (removing the nonrestrictive clause to determine the meaning of a sentence in a deed)."Provided" means "[o]n the condition or understanding (that)."
As such, the commas could be replaced with parentheses without changing the sentence's essential meaning. See id. at 446–47, 8 A.3d at 291;In re Gallagher, 332 Or. 173, 26 P.3d 131, 136–37 (2001) (citing Chicago Manual of Style § 5.41, at 167–68 (14th ed. 1993), and William Strunk, Jr. & E.B. White, The Elements of Style, 3–4 (3d ed. 1979)). Hence, the pronoun “it” must refer back to a noun appearing in the sentence prior to the nonrestrictive clause.
As such, the commas could be replaced with parentheses without changing the sentence's essential meaning. See id. at 446-47, 8 A.3d at 291; In re Gallagher, 26 P.3d 131, 136-37 (Or. 2001) (citing CHICAGO MANUAL OF STYLE §5.41, at 167-68 (14th ed 1993), and WILLIAM STRUNK, JR. & E.B. WHITE, THE ELEMENTS OF STYLE, 3-4 (3d ed. 1979)). Hence, the pronoun "it" must refer back to a noun appearing in the sentence prior to the nonrestrictive clause.
In other cases, this court has imposed two-year suspensions when it found that a lawyer had failed to respond truthfully and fully in disciplinary proceedings in addition to other serious misconduct. See In re Gallagher, 332 Or 173, 190, 26 P3d 131 (2001) (accused repeatedly lied to Bar and LPRC in violation of both DR 1-102(A)(3) and DR 1-103(0); Huffman, 331 Or at 229 (accused made misrepresentations in motions filed with court in violation of both DR 1-102(A)(3) and DR 1-103(0); In re Star, 324 Or 283, 292, 924 P2d 308 (1996) (accused failed to cooperate with Bar, engaged in misrepresentation, and knowingly made false statements of fact under oath resulting in prejudice to administration of justice). Here, the accused's misconduct was less egregious than that involved in Eadie.
"Conduct by which one lawyer seeks to dupe another lawyer (and the latter's client) tears at the fabric of the legal profession, which can expect to have no better reputation for trustworthiness in the community than that of its worst actors." In re Complaint as to the Conduct of Daniel Q. Gallagher, 332 Or. 173, 182, 26 P.3d 131 (Or. 2001). While Respondent initially claimed that she acted on a mistaken belief that she had permission to take $70,000 from the settlement funds, the record does not support her assertion.
We analyze the conduct that allegedly constitutes dishonesty on a case-by-case basis. In re Gallagher, 332 Or 173, 181, 26 P3d 131 (2001). To engage in conduct involving dishonesty in violation of DR 1-102(A)(3), the accused must have acted with a mental state of knowledge or intent.
In deciding whether the Bar met its burden of proof, we review the evidence de novo, giving weight to the trial panel's credibility findings. In re Gallagher, 332 Or 173, 175-77, 26 P3d 131 (2001). With that standard of review in mind, we turn to the first of four statements that, the Bar contends, constitutes a misrepresentation.