In re Graeff

                                       18

Argued and submitted January 7, respondent suspended from practice of law for
    period of five years, commencing on date of this decision April 22, 2021


                In re Complaint as to the Conduct of
                         ERIK GRAEFF,
                         OSB No. 102169,
                    Respondent/Cross-Petitioner.
                  (OSB 18175, 18197) (SC S067639)
                                   

    The Oregon State Bar brought a disciplinary action against the accused
lawyer, alleging violations of the Rules of Professional Conduct, arising out of
his criminal conviction for intentionally discharging a firearm at a building and
recklessly endangering another, and arising out if his failure to communicate
with his clients in a matter. A trial panel of the Disciplinary Board found that
the respondent’s criminal misconduct violated RPC 8.4(a)(2) but that the Bar had
not proved the accused had violated the rules relating to communicating with
clients, and it suspended the respondent for a period of three years. Held: On
de novo review, the court concluded that there was clear and convincing evidence
that the respondent committed all of the charged violations of the disciplinary
rules and that the respondent should be suspended from the practice of law for a
period of five years.
    The respondent is suspended from the practice of law for five years, commencing on the date of this decision.



  On review of the decision of a trial panel of the Disciplinary
Board.
   Susan R. Cournoyer, Assistant Disciplinary Counsel,
Tigard, argued the cause and filed the briefs for the Oregon
State Bar.
  Erik Graeff, Vancouver, Washington, argued the cause
and filed the briefs on behalf of himself.
  Before Walters, Chief Justice, and Nakamoto, Flynn,
Duncan, Nelson, and Garrett, Justices, and Kistler, Senior
Judge, Justice pro tempore.*
    PER CURIAM
   Respondent is suspended from the practice of law for a
period of five years, commencing on the date of this decision.
______________
   * Balmer, J., did not participate in the consideration or decision of this case.
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           PER CURIAM.
         In this lawyer discipline case, the Oregon State
Bar charged respondent with violating Rule of Professional
Conduct (RPC) 8.4(a)(2) (prohibiting commission of a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer) after he fired six bullets into the occupied offices of a lawyer with whom he was
having a professional dispute, narrowly missing one of the
occupants of the building.1 In an unrelated matter, the Bar
also charged respondent with violating RPC 1.4(a) (requiring lawyer to keep client reasonably informed about status
of a matter and promptly comply with reasonable requests
for information) and RPC 1.4(b) (requiring lawyer to explain
a matter to extent reasonably necessary to permit client to
make informed decisions regarding the representation),
based on his failure to timely inform his clients that he had
withdrawn from the representation or that the defense had
moved for summary judgment in their case.
          A trial panel of the Disciplinary Board found that
respondent’s criminal misconduct violated RPC 8.4(a)(2)
but that the Bar had not proved by clear and convincing
evidence that respondent’s failure to communicate with his
clients violated RPC 1.4(a) or (b). The panel concluded that
a three-year suspension from the practice of law was an
appropriate sanction. On review in this court, the Bar urges
us to conclude, in accordance with the trial panel’s finding,
that respondent engaged in criminal misconduct in violation
of RPC 8.4(a)(2) and to conclude, contrary to the trial panel’s finding, that respondent failed to communicate with his
clients in violation of RPC 1.4. The Bar asks that we disbar
respondent rather than impose a suspension. On a crosspetition for review, respondent urges the court to adopt the
trial panel’s findings in all respects and conclude that he
    1
      Based on that same misconduct, the Bar also charged respondent with violating ORS 9.527(2) (Supreme Court may disbar, suspend, or reprimand a member of the bar who has been convicted of a felony). However, the Bar withdrew
that statutory charge for purposes of review in this court, noting that the court
has advised the Bar not to charge violations of ORS 9.257 when the acts allegedly
violating the statute also would constitute a violation of a disciplinary rule. In re
Strickland, 

, 602 n 7, 

 (2005) (declining to address alleged
violation of ORS 9.527); In re Albrecht, 

, 

 (2002) (same);
In re Kimmell, 

, 

 (2001) (same).
20                                                In re Graeff

engaged in criminal misconduct in violation of RPC 8.4(a)(2)
but that he did not fail to communicate with his clients in
violation of RPC 1.4. Respondent asks that we suspend him
for one year rather than three years. For the reasons that
follow, we conclude that respondent both engaged in criminal conduct and failed to communicate with his clients, violating his ethical duties to the public and to his clients, and
we suspend him for five years.
                      BACKGROUND
         We review a decision of the trial panel de novo. ORS
9.536(2); Bar Rule (BR) 10.6. The Bar must establish misconduct by clear and convincing evidence, BR 5.2, which is
“evidence establishing that the truth of the facts asserted
is highly probable,” In re Kirchoff, 

, 

 (2017) (internal quotation marks omitted). We find the
following facts by clear and convincing evidence.
         Respondent is an Iraq war veteran and suffers posttraumatic stress disorder (PTSD) resulting from his deployment. He went to law school after his honorable discharge
from the military. He was admitted to practice law in Oregon
in 2010, and he has been a solo practitioner for most of his
career. After his father’s death in 2015, respondent began to
drink heavily. He entered a Veterans Administration treatment program, but he was unsuccessful at achieving sobriety. At the time of the incident leading to this disciplinary
matter, respondent was not involved in any substance abuse
treatment program.
          Respondent met Terrance Hogan, a lawyer in
Beaverton, around 2011. Hogan became a friend as well as a
professional and personal mentor and advisor to respondent.
Hogan also occasionally referred work to respondent. In 2017,
Hogan hired respondent to file a case in Washington, where
respondent was admitted to practice law. Respondent and
Hogan began disputing the scope of the duties that respondent had been hired to perform. Respondent claimed that he
was hired to file the case and nothing more; Hogan claimed
that respondent was hired to accept all responsibility for the
case. In any event, Hogan did not step in to assume responsibility for the case, and opposing counsel began pressuring
respondent to move forward with discovery.
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         In December 2017, on the day of the incident leading to this disciplinary proceeding, respondent and Hogan
argued about the case and sent heated emails to each
other. At around 4:30 p.m., respondent sent Hogan an email
threatening that he would show up at Hogan’s office if traffic
were not so heavy. Respondent later testified that he had
been drinking beer most of that day. Between 6:00 p.m. and
7:00 p.m., during rush-hour traffic, respondent drove from
Northeast Portland to Hogan’s office in Beaverton. From the
side of the road, he fired six rounds from a pistol at and
into the building where Hogan’s law firm was located. Three
shots hit the brick siding, one hit a metal exterior door, and
two went through one of the law firm’s lighted office windows. The law firm manager was in the office at the time.
The police report stated that an investigator had reconstructed the trajectory of the bullets that went through the
windows and found that one of the bullets had passed just
to the manager’s left, about seven inches from her head, and
hit the back of a computer. Respondent immediately left the
scene and drove to his home in Vancouver, Washington.
         After a police investigation, respondent was charged
with one count of unlawful use of a weapon in violation of
ORS 166.220(1)(a) (firing a weapon at a person) (a class C
felony), one count of unlawful use of a weapon in violation
of ORS 166.220(1)(b) (firing a weapon at a building) (a class
C felony),2 and one count of recklessly endangering another
person in violation of ORS 163.195 (a class A misdemeanor).
Respondent consistently maintained that he did not intentionally fire his weapon at a person, and he negotiated a plea
agreement under which he entered a guilty plea in October
2018 to one count of unlawful use of a weapon in violation
of ORS 166.220(1)(b), for shooting at the building, and to

   2
     ORS 166.220(1) provides:
   “A person commits the crime of unlawful use of a weapon if the person:
        “(a) Attempts to use unlawfully against another, or carries or possesses
   with intent to use unlawfully against another, any dangerous or deadly
   weapon as defined in ORS 161.015; or
        “(b) Intentionally discharges a firearm … within the city limits of any
   city or within residential areas within urban growth boundaries at or in the
   direction of any person, building, structure or vehicle within the range of the
   weapon without having legal authority for such discharge.”
22                                                          In re Graeff

the reckless endangerment charge.3 In January 2019, the
court imposed a sentence of 18 months in prison followed
by two years of post-prison supervision on the gun charge
and a suspended five-year term of probation on the reckless endangerment charge. Respondent served 10 months in
prison and has since been released; at the time of the trial
in the disciplinary proceeding, he was serving his term of
post-prison supervision.
         In an unrelated matter, respondent also was
charged with two disciplinary violations based on his failure to communicate with clients. Those charges arose out
of a lawyer malpractice case that respondent had filed on
behalf of clients Stull and Buchanan against lawyer Roller.
In early October 2017, Roller took the depositions of Stull
and Buchanan. At the conclusion of the depositions, Stull
emailed respondent raising concerns about judicial bias in
the underlying case (in which Roller had represented Stull
and Buchanan). The next morning, on October 6, respondent
responded to that email, expressing his extreme skepticism
about their claims of judicial bias and their chances at trial
in the malpractice action. In particular, respondent stated
that Stull’s deposition had been an “absolute disaster” and
that a jury would never believe him. He recommended that
they dismiss the malpractice case.
         On October 9, respondent filed a motion to withdraw from the case. The motion and the certificate of service
show that respondent mailed a copy of that motion to Stull
and Buchanan at an incorrect address. However, he did not
email them a copy of that motion, although that was the way
that he typically had communicated with them.
         On October 22, Stull and Buchanan sent respondent an email stating that they wished to continue pursuing
their case. Respondent did not reply. On October 27, Roller’s
lawyer filed a motion for summary judgment, and he served
it only on respondent. Respondent did not transmit a copy of
that motion to Stull and Buchanan.
         On November 2, the court granted respondent’s
motion to withdraw. On November 7, Stull and Buchanan
     3
       The unlawful use of a weapon charge under ORS 166.220(1)(a), based on
firing a weapon at a person, was dismissed as part of that plea deal.
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emailed respondent asking how he planned to respond to
the motion for summary judgment.4 Respondent replied by
email later that day that he no longer represented them.
       PROCEEDINGS BEFORE THE TRIAL PANEL
        The trial panel found that the Bar had proved by
clear and convincing evidence that respondent’s conduct in
the shooting incident was “criminal conduct that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects” in violation of RPC 8.4(a)(2).
         With respect to the Stull and Buchanan matter, as
we have stated, the Bar charged respondent with violating
RPC 1.4(a) and (b). In respondent’s answer to the formal
complaint, he admitted the facts recounted above and he
admitted that his conduct violated RPC 1.4(a). He denied
that his conduct violated RPC 1.4(b). At trial, however, he
withdrew his admission to the RPC 1.4(a) violation.5 The
Bar informed the trial panel that, because of respondent’s
admission, it had not planned to call any witnesses to prove
those violations. For that reason, the evidence of respondent’s misconduct in the record was limited to certain exhibits that the Bar had introduced without objection. Based on
the evidence in the record, the trial panel found, without
analysis, that the Bar had failed to meet its burden to prove
the charges against respondent. The trial panel ultimately
determined that a three-year suspension from the practice
of law was the appropriate sanction for respondent’s misconduct in the shooting incident.
         The Bar and respondent cross-petitioned for review
of the trial panel’s decision. As noted, the Bar seeks review
of the trial panel’s determination that respondent did not
violate RPC 1.4(a) or (b) by failing to communicate with
Stull and Buchanan about his withdrawal from representation and about the summary judgment motion, and it
urges this court to disbar respondent for his violation of
RPC 8.4(a)(2). Respondent challenges only the trial panel’s
    4
      The record does not reflect how Stull and Buchanan learned about the
motion.
    5
      Respondent was not allowed to amend his answer, but he was permitted to
testify at the hearing to dispute the admission and to explain why he initially
admitted the violation.
24                                                   In re Graeff

sanction determination; he argues that a one-year suspension from the practice of law is an appropriate sanction for
his misconduct.
                          VIOLATIONS
        Respondent concedes that he committed the crimes
of unlawful use of a weapon and reckless endangerment,
and he does not challenge the trial panel’s conclusion that,
in committing those crimes, he violated RPC 8.4(a)(2). We
agree that respondent’s commission of those crimes reflects
adversely on his fitness as a lawyer; the crime occurred in
the context of a professional dispute with another lawyer,
and it demonstrated a disrespect for the law and for the
rights and safety of others. We therefore find, by clear and
convincing evidence, that respondent violated RPC 8.4(a)(2).
        We now consider the Bar’s argument that respondent’s conduct with respect to Stull and Buchanan violated RPC 1.4(a) and (b), which require lawyers to maintain reasonable communications with their clients. RPC 1.4
provides:
        “(a) A lawyer shall keep a client reasonably informed
     about the status of a matter and promptly comply with reasonable requests for information.
        “(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
     decisions regarding the representation.”
For purposes of the Rules of Professional Conduct, the terms
“ ‘[r]easonable’ and ‘reasonably’ … denote the conduct of
a reasonably prudent and competent lawyer.” RPC 1.0(k).
That is, RPC 1.4(a) and (b) require lawyers to respond to
reasonable requests for information and keep their clients
reasonably informed about the status of the matter.
         As this court stated in In re Groom, 

,

 (2011), “deciding whether a lawyer has violated
RPC 1.4 requires a careful examination of all of the facts.”
In Groom, the court set out several factors to consider in
determining whether a lawyer’s failure to communicate violates RPC 1.4: the length of time between information coming to a lawyer’s attention and the lawyer’s communication
of that information to the client; whether the lawyer failed
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to respond promptly to the client’s reasonable request for
information; and whether the lawyer knew, or a reasonable
lawyer would have foreseen, that delay in communication
would prejudice a client. 

 The court also noted that, in
certain circumstances, a lawyer may be required to communicate information immediately in order to keep a client reasonably informed and that RPC 1.4, in many circumstances,
places responsibility on the lawyer to initiate the communication. 

 Furthermore, the court stated, a lawyer’s obligation to keep a client reasonably informed exists regardless
of the merits of the client’s claim or position:
      “If a client’s claim or position lacks merit, that lack, and
      not the lawyer’s failure to communicate, ordinarily will be
      the cause of the client’s lack of success and any resulting
      prejudice. In such a circumstance, the fact that a lawyer’s
      failure to communicate does not prejudice the client does
      not relieve the lawyer of the ethical duty to communicate.”

         Although the Bar did not call witnesses to testify in
the proceeding below, the trial panel found that the following facts are established by the documents that the Bar had
entered into the record: Respondent decided to withdraw
from representing Stull and Buchanan on October 9, 2017.
He then (perhaps accidentally) used an incorrect address
and consequently failed to serve them by mail with his
motion to withdraw, and he also did not email them a copy
of the motion, which is how he primarily had been communicating with them. Respondent took no further action to communicate with Stull and Buchanan, even after they emailed
him to tell him they wanted to continue to pursue the case,
and even though it was clear from that email message that
they were not aware that he had moved to withdraw from
the case.
        Respondent also did not communicate with them
when, later that week, Roller’s lawyer filed a summary judgment motion and served it on respondent but not on Stull
and Buchanan. Specifically, respondent did not forward
a copy of the motion to Stull and Buchanan or even tell
them that a dispositive motion had been filed against their
complaint. And when the trial court granted respondent’s
26                                                                 In re Graeff

motion to withdraw on November 2, respondent took no
steps to inform Stull and Buchanan that they no longer had
counsel, even though a dispositive motion was then pending
against them and a response would be due in two weeks.6
Indeed, respondent did not inform Stull and Buchanan that
he had withdrawn until five days later, when he received
an email from them asking him what their response to the
summary judgment motion should be. It was only then that
respondent told his clients that he no longer represented
them.7
         After reciting the foregoing facts, the trial panel
concluded, without explanation, that “the exhibits admitted
that relate to the charge are insufficient to meet the Bar’s
burden.” We disagree.
         Although respondent’s failure to communicate with
Stull and Buchanan extended over a relatively short period
of time, it took place during a critical phase of their malpractice case against Roller. Having moved to withdraw
and having been served with the opposing party’s motion
for summary judgment, a reasonable lawyer would have
foreseen that his clients could be prejudiced by a delay in
alerting them that a dispositive motion had been filed in
their case and that he did not intend to respond on their
behalf, because they would be unaware that they needed
to act quickly to find new counsel to respond for them. We
therefore find by clear and convincing evidence that respondent violated RPC 1.4(a) when he failed to inform Stull and
Buchanan that he had withdrawn from the representation
and that opposing counsel had filed a motion for summary
judgment. We also find by clear and convincing evidence that
respondent violated RPC 1.4(b) when he failed to explain to
Stull and Buchanan the significance of those developments,
including their urgent need to find substitute counsel and
whether and when to respond to the motion for summary
judgment.
    6
       Under ORCP 47 C, the adverse party has 20 days to respond to a summary
judgment motion. The summary judgment motion was filed on October 27, 2017;
a response would have been due on November 16.
    7
       Respondent does not challenge those facts on review in this court. Indeed,
in his brief to this court, respondent specifically incorporates by reference all the
facts found by the trial panel in its opinion.
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              SANCTION DETERMINATION
         We proceed to consider the appropriate sanction
for respondent’s misconduct. In so doing, we refer to the
American Bar Association’s Standards for Imposing Lawyer
Sanctions (1991) (amended 1992) (ABA Standards) and
Oregon case law. In re Webb, 

, 

 (2018).
Under the ABA Standards, the court makes a preliminary
determination of the appropriate sanction by considering the
ethical duty violated, the respondent’s mental state at the
time of the misconduct, and the potential or actual injury
caused by the respondent’s misconduct. ABA Standard 3.0.
From there, we consider the existence of any aggravating
or mitigating circumstances that may justify either an
increase or a decrease in the presumptive sanction. In re
McGraw, 

, 

 (2018). Finally, we
consider the appropriate sanction in light of this court’s case
law. 

        We begin with the factors set out in ABA Standard
3.0 and address each in turn.
         First, in committing criminal acts that violated
RPC 8.4(a)(2), respondent violated a duty to the public to
maintain his personal integrity and, more generally, to
maintain the public’s confidence in the integrity of officers of
the court. ABA Standard 5.0; In re Murdock, 

,

 (1998) (Under ABA Standard 5.0, “[a] lawyer
owes a duty to the public to maintain personal integrity and
to maintain the public trust.”). And in his conduct respecting
Stull and Buchanan, respondent violated his ethical duty to
his clients to act with reasonable diligence. ABA Standard
4.4. Respondent’s violation of those duties raises significant
questions about his fitness as a lawyer.
         Second, respondent acted both intentionally and
knowingly. With respect to the violation of RPC 8.4(a)(2),
respondent acted intentionally, that is, with the “conscious
objective or purpose to accomplish a particular result.” ABA
Standards at 7 (so defining “intent”). Respondent pleaded
guilty to the unlawful use of a weapon, and a person commits that crime when he or she “intentionally” discharges
a firearm at a building. ORS 166.220(1)(b) (“A person commits the crime of unlawful use of a weapon if the person
28                                                                In re Graeff

… [i]ntentionally discharges a firearm” at a building). With
respect to the violations of RPC 1.4(a) and (b), respondent
acted knowingly—that is, with the “conscious awareness of
the nature or attendant circumstances of the conduct but
without a conscious objective or purpose to accomplish a
particular result.” ABA Standards at 7 (so defining “knowledge”). Although respondent may have acted negligently
when he initially failed to inform Stull and Buchanan that
he had moved to withdraw from their representation—he
served them at the wrong address, and he may have done so
mistakenly—his subsequent actions were knowing. When
Stull and Buchanan emailed respondent to tell him that
they wished to continue pursuing their case against Roller,
respondent knew that he had moved to withdraw and that
he was not responding to their request for assistance. When
respondent received Roller’s motion for summary judgment,
and, a few days later, when the trial court granted respondent’s motion to withdraw, respondent knew that he had not
forwarded a copy of the summary judgment motion to his
clients or advised them to seek new counsel. At each of those
junctures, respondent’s failure to communicate with Stull
and Buchanan was knowing.

         Third, respondent’s acts caused both actual and
potential injury. Respondent’s criminal acts caused actual
and serious emotional anguish to the law firm manager
and to Hogan,8 as well as actual physical damage to the
premises. Those acts also caused serious potential injury.
Potential injury is “the harm … that is reasonably foreseeable at the time of the lawyer’s misconduct, and which, but
for some intervening factor or event, would probably have
resulted from the lawyer’s misconduct.” ABA Standards at
7. Respondent shot a gun into a law office window, and it
was reasonably foreseeable that doing so could cause physical injury to people who might be in the office. In fact, one
of the bullets that respondent fired narrowly missed the

    8
      Respondent refuses to concede that Hogan suffered any actual injury from
respondent’s criminal conduct. However, Hogan testified before the trial panel
about the effect of the incident on his mental well-being, stating that he was
shaken to the point of quitting his job over the events, and the trial panel found
that respondent’s conduct caused “damage to the psyche[ ] of … the target of his
anger, Hogan.”
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office manager; but for the seven inches by which the bullet missed her, the office manager would have been physically, as well as emotionally, injured. And, although the
Bar did not adduce evidence that respondent’s failure to
communicate with Stull and Buchanan caused them actual
injury, respondent’s failure occurred at a time when they
were required to respond to a dispositive motion. It was
reasonably foreseeable that, without a lawyer to represent them, they would be prejudiced in responding to that
motion.
        We next consider the presumptive sanction for
respondent’s violations. Under the ABA Standards, disbarment is the presumptive sanction when:
     “(a) a lawyer engages in serious criminal conduct a
  necessary element of which includes intentional interference with the administration of justice, false swearing,
  misrepresentation, fraud, extortion, misappropriation, or
  theft; or the sale, distribution or importation of controlled
  substances; or the intentional killing of another; or an
  attempt or conspiracy or solicitation of another to commit
  any of these offenses; or
     “(b) a lawyer engages in 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. In contrast, suspension is the presumptive sanction when:
  “a lawyer knowingly engages in criminal conduct which
  does not contain the elements listed in Standard 5.11 and
  that seriously adversely reflects on the lawyer’s fitness to
  practice.”
ABA Standard 5.12.
        The Bar contends that we should apply ABA
Standard 5.11 in this case and disbar respondent because
respondent committed a violent criminal act involving a
deadly weapon, thereby putting others at risk. The problem
with that argument is that ABA Standard 5.11 does not
include such an act in the list of acts for which disbarment
is the presumptive sanction. And the Bar does not argue
30                                                                 In re Graeff

that respondent committed an act that is included in that
list.9 ABA Standard 5.11, thus, does not apply.
         However, ABA Standard 5.12, for which the presumptive sanction is suspension, also is not a perfect fit.
That standard applies when a lawyer “knowingly engages in
criminal conduct which does not contain the elements listed
in ABA Standard 5.11 and that seriously adversely reflects
on the lawyer’s fitness to practice.” (Emphasis added.) As
discussed, we have found that respondent intentionally
engaged in criminal conduct that seriously and adversely
reflects on his fitness to practice law.
          Although ABA Standard 5.11 is not applicable by
its terms, respondent’s conduct is, in many respects, closer
to the conduct described in ABA Standard 5.11 than it is
to the conduct described in ABA Standard 5.12. For one
thing, as we have just observed, respondent’s conduct in the
shooting incident was intentional, not knowing. In addition,
ABA Standard 5.11 applies not only when a lawyer commits
the crimes of killing or attempted killing; it also applies to
crimes that involve a serious violation of a lawyer’s duties
as an officer of the court and that undermine public confidence in the rule of law. That is, ABA Standard 5.11 applies
to “serious criminal conduct a necessary element of which
includes intentional interference with the administration of
justice, false swearing, misrepresentation, fraud, extortion,
misappropriation, or theft.” ABA Standard 5.11(a). Although
respondent did not commit such a crime, he did forsake
established legal channels for resolving business disputes
and, instead, committed an act of violence that implicates
his duties as an officer of the court and that undermines
public trust and confidence in the legal system.
        Given that respondent’s conduct does not squarely
fall under either ABA Standard 5.11 or ABA Standard 5.12,

    9
      The list includes the attempted intentional killing of another. We observe
that proof of a criminal conviction is not required for a finding of a disciplinary
rule violation if, even in the absence of a conviction, the record establishes that a
particular crime occurred. In re Walton, 

, 554 n 5, 

 (2012)
(so stating). However, the Bar does not argue that the record establishes that
respondent committed that crime. Indeed, at oral argument before this court, the
Bar conceded that the record does not establish that respondent knew that the
building was occupied when he fired his gun at it.
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we conclude that either disbarment or suspension may be
justified, depending on the balance of aggravating and mitigating factors.
          Here, the trial court found the following aggravating factors: (1) respondent had a dishonest or selfish
motive—to settle a dispute with Hogan by threats and violence, ABA Standard 9.22(b); (2) respondent committed multiple offenses, ABA Standard 9.22(d); (3) the office manager
was a vulnerable victim in the circumstances—she was
unsuspecting of danger, and, therefore, completely defenseless when the bullets entered the building, ABA Standard
9.22(h); (4) respondent has substantial experience in the
practice of law, ABA Standard 9.22(i); and (5) respondent
engaged in illegal conduct, ABA Standard 9.22(k).
         We agree that those circumstances are present,
and we also find a sixth aggravating factor—that respondent still refuses to acknowledge the wrongful nature of his
conduct in failing to communicate with his clients, Stull
and Buchanan. ABA Standard 9.22(g). Although respondent initially admitted his violation of RPC 1.4(a), he withdrew his admission at trial, putting the Bar to its proof.
The Bar adduced the facts recited above, and respondent
neither disputes them nor offers a plausible legal argument
that his admitted conduct did not violate the rules. As this
court has explained, when a lawyer admits the Bar’s factual allegations in nearly all material respects but does not
offer a plausible legal argument explaining why the conduct
does not violate the rules and, instead, continues to claim
that the conduct was not blameworthy or detrimental, the
lawyer has failed to acknowledge the wrongful nature of
his conduct. In re Maurer, 

, 

(2018).
         On the other side of the scale, the trial panel found
the following mitigating factors: (1) respondent had no prior
disciplinary record, ABA Standard 9.32(a); (2) respondent
suffered from personal and emotional problems—namely,
he suffered from PTSD as a result of his military service
and began drinking heavily after his father’s death, ABA
Standard 9.32(c); (3) respondent fully cooperated with the
disciplinary board, ABA Standard 9.32(e); and (4) respondent
32                                                   In re Graeff

was subjected to a term of imprisonment and other penalties for his criminal behavior, ABA Standard 9.32(k).
         We agree that those mitigating factors are present in this case. We turn to respondent’s argument that we
should recognize two additional mitigating factors—one
based on his mental disability and chemical dependency,
ABA Standard 9.32(i), and one based on his reimbursement
of the insurance company for the damages he caused to
Hogan’s law offices in the shooting, ABA Standard 9.32(d).
Respondent bears the burden of proving the existence of
those mitigating factors. Webb, 

 n 5.
         ABA Standard 9.32(i) provides that a lawyer’s mental disability or chemical dependency, including alcoholism,
is a mitigating factor when all four of the following circumstances are present:
        “(1) there is medical evidence that the respondent is
     affected by a chemical dependency or mental disability;
        “(2) the chemical dependency or mental disability
     caused the misconduct;
         “(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
        “(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.”
We agree with respondent that the first circumstance is
present: there is medical evidence in the record that he is
affected by alcoholism and PTSD resulting from his military service. But, as we will explain, respondent did not
demonstrate that those conditions rendered him unable to
refrain from engaging in the criminal acts he committed.
        In a case of intentional misconduct, we have concluded that, to prove that a mental disability or chemical
dependency caused that misconduct, a lawyer must prove
that the condition rendered the lawyer unable to “conform
his or her conduct and refrain from engaging in the intentional act.” Webb, 

. Here, respondent testified about the effects of his PTSD and alcohol on his life,
and asks that we draw the inference that he would not have
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committed the criminal act of shooting at Hogan’s offices
if not for his “ongoing pervasive alcohol abuse and current
intoxication.” Respondent contends that Hogan’s testimony
that respondent’s “problems consumed him” supports his
position.
         In some sense, we agree with respondent that his
alcohol dependency was a cause of his misconduct. We have
no doubt that respondent’s judgment was impaired by his
mental disability and chemical dependency; as noted, we
conclude that respondent’s PTSD and the exacerbation of
his alcoholism after his father’s death are personal and emotional problems that are mitigating factors in our sanction
determination under ABA Standard 9.32(c). Thus, to some
degree, respondent’s alcohol dependency and his PTSD may
be considered as mitigating factors. However, as we will
explain, those conditions cannot excuse respondent’s intentional acts.
         As described above, the record establishes that
respondent traded insults and threats with Hogan by email,
and, at around 4:30 p.m., as evidenced by his last email to
Hogan, respondent began to think about going to Hogan’s
office to confront him. Around two hours later, respondent
turned that thought into action; between 6:00 p.m. and
7:00 p.m., he drove through rush-hour traffic to Hogan’s
office with a loaded gun. Respondent’s impairment, thus,
did not interfere with his ability to develop a plan to commit the criminal act and then carry it out. In light of those
facts, we are not persuaded that respondent’s impairment
prevented him from being able to conform his behavior to
the requirements of the disciplinary rules or that we should
give greater weight to his impairment than did the trial
panel.
         We do agree with respondent, however, that his
payment of restitution to the insurance company for the
damage to Hogan’s law offices constitutes a mitigating factor in our sanction analysis. ABA Standard 9.32(d) provides
that a “timely good faith effort to make restitution or to rectify consequences of misconduct” is a mitigating factor. The
record demonstrates that, in August 2018, several months
before defendant’s convictions on the shooting charges, the
34                                                              In re Graeff

Liberty Mutual Group approached respondent for reimbursement of the amount that it had paid on the insurance
claim for damage to the building. According to respondent’s
undisputed testimony, respondent agreed to reimburse the
insurance company and drafted a promissory note setting
out his obligation to pay the amount of the claim, $7,732.74.
Respondent paid $2,000 upon signing the agreement, timely
made required installment payments, and paid off the
remaining balance in January 2019.
         The Bar contends that those efforts cannot qualify
as mitigating restitution because respondent made those
payments to settle the insurance company’s claims against
him and thereby received a benefit, namely a release of
those claims.10 However, the Bar offers no support for its
argument that voluntary restitution is not mitigating if a
lawyer receives some benefit from it, and we find none. ABA
Standard 9.32(d) contains no requirement that the respondent’s decision to make restitution be altruistic, and we can
think of no persuasive reason to impose such a requirement.
We conclude that we can consider respondent’s timely agreement to pay for the damage he caused and his fulfillment of
that agreement as mitigating conduct.
         It is difficult to determine where that leaves us. As
we have discussed, the ABA Standards for determination
of a preliminary sanction are not a perfect fit. They do not
make disbarment the presumptive sanction for respondent’s
misconduct, but the aggravating circumstances present in
this case—the most serious of which are that respondent
engaged in criminal conduct that caused actual emotional
injury and potentially grave physical injury to a vulnerable
person—permit that result.
        Pointing in the other direction, though, are respondent’s personal circumstances, his PTSD and alcoholism,
his father’s death, his cooperation with the Bar, his otherwise clear disciplinary record, and the fact that respondent already has been punished and paid restitution for

    10
       The Bar states that, by executing the promissory note, respondent resolved
“Liberty Mutual’s claim against him.” We find nothing in the record to suggest
that Liberty Mutual Group had filed any claim against respondent when he
entered into the agreement to reimburse the company.
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his criminal acts. Were it not for those mitigating factors,
we might well decide that respondent should be disbarred.
With those factors, however, we conclude that the appropriate sanction is suspension, and we confront the question of
how long that suspension should be.
         We normally would turn to this court’s case law for
guidance in that regard, but we can find no Oregon cases
presenting factual circumstances that are similar to these.
That is, in every case involving serious criminal misconduct,
the misconduct fell clearly under ABA Standard 5.11(a) or
(b) and the lawyer was disbarred.11 Our other cases involving serious misconduct are so factually dissimilar to this
one that they provide little assistance, except insofar as they
confirm that a lengthy period of suspension is appropriate in
the most serious cases.12
         A lengthy period of suspension is undeniably appropriate here. The trial panel recommended a suspension of
three years, and we agree that respondent must be suspended for at least that period. We are concerned however,
that, even at this point, respondent fails to fully appreciate
the enormity of his misconduct. An aggravating factor in
this case is that respondent still does not acknowledge the
wrongful nature of his conduct in failing to communicate
with his clients, and, more importantly, although respondent

    11
       See, e.g., In re Steele, 27 DB Rptr 115 (2013) (lawyer disbarred following
felony convictions in connection with a murder-for-hire scheme); Albrecht, 

, 

 (2002) (lawyer disbarred for money laundering); In re Taylor, 

, 

 (1993) (lawyer disbarred following felony convictions for
distribution of marijuana and failure to file tax returns).
    12
       See, e.g., In re Kluge, 

, 

 (2001) (lawyer suspended for
three years for multiple rule violations involving intentional misrepresentations
and failure to withdraw when called as witness against client); In re Eadie, 

, 

 (2001) (lawyer suspended for three years for multiple rule
violations involving intentional misrepresentations, incompetence, ex parte contacts, and trial misconduct); In re Parker, 

, 

 (2000) (lawyer
suspended for four years for multiple rule violations involving neglect of four clients and failure to cooperate with and false statements to disciplinary tribunal);
In re Christ, 

, 

 (1998) (lawyer suspended for five years
for multiple rule violations involving neglect of legal matter, engaging in conduct
prejudicial to the administration of justice, and failure to cooperate with disciplinary tribunal); In re Bourcier, 

, 

 (1996) (lawyer suspended for three years for multiple rule violations involving failure to communicate with client, intentional misrepresentations to court, and failure to cooperate
with disciplinary tribunal).
36                                                In re Graeff

acknowledges that his criminal conduct was wrongful, he
minimizes it. For example, respondent argues for a suspension of only one year, and, in response to the Bar’s characterization of his trial posture as indicating a lack of remorse,
respondent defended statements that he had made during
his hearing, but he did not take the opportunity to actually express remorse. Instead, respondent discounted the
harm that he had caused—he denied harming Hogan and
concluded his brief to this court by stating that it “cannot
reasonably be disputed [that] … I in fact hurt nobody.”
        To recognize the gravity of respondent’s criminal
conduct and ensure that respondent and other members of
the Bar recognize the significance of the ethical standards
to which they must adhere, we conclude that the lengthiest
of permissible sanctions short of disbarment is warranted.
Under BR 6.1(a)(3) the maximum length of a disciplinary
suspension that we may order is five years, and that is the
suspension we impose.
          Respondent is suspended from the practice of law
for five years, commencing on the date of this decision.