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FILED: FEBRUARY 23, 2001

In re Complaint as to the Conduct of
WILLIAM B. WYLLIE,

Accused.

(OSB 97-84, 98-35; SC S47249)

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

Argued and submitted November 6, 2000.

William B. Wyllie, Crescent Lake, argued the cause and filed the brief in propria persona.

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

Before Gillette, Durham, Kulongoski, Leeson, and Riggs, Justices.*

PER CURIAM

The accused is suspended from the practice of law for four months, with the period of suspension to run consecutively to the period of suspension imposed on the accused in In re Wyllie, 327 Or 175, 957 P2d 1222 (1998).

*Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case. Carson, C. J., and De Muniz, J., did not participate in the consideration or decision of this case.

PER CURIAM

In this lawyer discipline proceeding, the Oregon State Bar (Bar) filed four causes of complaint against the accused, alleging a total of eight violations of the Code of Professional Responsibility Disciplinary Rules (DRs), including DR 5-105(E) (current client conflict); DR 9-101(A) (failure to deposit client funds into trust account); DR 2-106(A) (charging or collecting illegal or excessive fee); DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 2-110(A)(2) (improper withdrawal); DR 6-101(B) (neglect of legal matter); DR 7-101(A)(1) (intentionally failing to seek lawful objectives of client); and DR 7-101(A)(2) (intentionally failing to carry out contract of employment). (1) A trial panel of the Disciplinary Board concluded that the Bar had proved that the accused violated the first three rules listed above, but that the Bar had failed to prove the remaining charges by clear and convincing evidence. The trial panel suspended the accused from the practice of law for eighteen months. Because the trial panel held that the accused should be suspended for more than six months, this court's review is automatic. ORS 9.536(2); BR 10.1; BR 10.4. On de novo review, ORS 9.536(3); BR 10.6, the Bar asks this court to find the accused guilty of all the charges and to disbar him. For the reasons that follow, we hold that the accused violated DR 5-105(E), DR 9-101(A), and DR 2-106(A), and we suspend him from the practice of law for four months.

Many of the facts in this case are contested, as we note below. On March 26, 1996, Billy Wayne Yother, Jr. (Yother junior), his sister Laura Yother, and his girlfriend Denise Szlavich (collectively, the defendants) were indicted for burglary and assault in connection with an altercation with Szlavich's former husband and his girlfriend over the physical custody of Szlavich's child. Both Szlavich's former husband and his girlfriend were injured. The defendants were arraigned on April 18, 1996, and their trial was scheduled for September 17, 1996. The defendants filed affidavits of indigence. The court appointed Reid to represent Yother junior, Bispham to represent Laura Yother, and Hickam to represent Szlavich. Those lawyers remained counsel of record throughout the criminal proceedings, and each recommended that his client plead no contest to reduced charges.

The accused had represented Billy Wayne Yother, Sr. (Yother senior) in the past on other matters. After the defendants had been indicted, and in response to their lawyers' recommendations that they plead no contest to reduced charges, Yother senior contacted the accused. Yother senior and the defendants met with the accused on April 8, 1996, for approximately one hour. The defendants told the accused that their trial date was September 17, 1996. The Bar contends that, at that meeting, the defendants retained the accused to represent them on the charges at trial. The accused responds that Yother senior retained him to provide a second opinion about whether the defendants should plead no contest, and that he gave Yother senior his opinion orally.

The defendants had an appointment to meet with the accused on April 22, 1996, but they failed to appear. The next day, however, they met with the accused for approximately one hour. The Bar contends that, at that meeting, the accused informed the defendants that he would require a retainer fee of $500 each to represent them. The accused did not enter into a written retainer agreement with the defendants. According to the accused, no written retainer was required, because Yother senior had retained him to provide a second opinion about whether the defendants should plead no contest and the accused frequently did not have retainer agreements with established clients.

On May 1, 1996, the accused sent a bill to Yother senior for $1,850. It reflected a charge of $150 for the April 8 "conference with client x3;" $50 for a "missed appointment" on April 22; $150 for the April 23 "conference with client x3;" and a "[r]equested retainer fee" of $1,500 dated April 23. Apparently, the accused's hourly fee was $150.

On May 6, 1996, the accused received $600 in cash. Yother junior believes that his mother provided that money; Szlavich contends that she provided it from her income tax return. The accused deposited the money into his personal account rather than into a client trust account. On June 29, 1996, the accused received another $150, which he also deposited into his personal account. Yother junior testified that he and Szlavich had paid the accused the $150. On August 1, 1996, the accused sent Yother senior a bill for $1,100. That bill acknowledged payment of $750, and it did not indicate that the accused had done any additional work on the case.

On September 11, 1996, the accused apparently met with one or all of the defendants for approximately 30 minutes. On October 1, 1996, the accused sent Yother senior a bill that acknowledged receipt of $750 and reflected a charge of $75 for "conference with client