concurring in part and dissenting in part.
I concur in the majority’s holding that the accused did not violate Disciplinary Rule (DR) 1-103(C). I respectfully dissent, however, from the majority’s holding that the accused violated DR 5-101(A)(l) and DR 1-102(A)(3). Additionally, although I concur in the majority’s holding that the accused violated DR 2-108(B), I disagree with the majority’s conclusions concerning the appropriate sanction for that violation. The issue whether a lawyer violates DR 2-108(B) when a lawyer agrees in connection with settlement of a case to “indirect” restrictions on the future practice of law never has been litigated previously in a disciplinary case in Oregon. Accordingly, I would hold that the appropriate sanction for both the accused is a reprimand.
The accused in this disciplinary proceeding are entitled to a presumption that they are innocent of the charges. *150In re Jordan, 295 Or 142, 156, 665 P2d 341 (1983). To overcome that presumption, the Bar must prove the alleged misconduct by clear and convincing evidence. In re Allen, 326 Or 107, 109, 949 P2d 710 (1997); Bar Rule of Procedure (BR) 5.2. “Clear and convincing evidence means that the truth of the facts asserted is highly probable.” In re Whipple, 320 Or 476, 478, 886 P2d 7 (1994) (internal quotation marks omitted).
FACTS
The facts in this proceeding are of the utmost importance, and, because I disagree with most of the majority’s interpretation of those facts, I believe that it is necessary to give my own explanation of them here. Reviewing the record de novo, I would find the following facts.
Both the accused have been lawyers in Oregon for more than 20 years. Brandt began representing former distributors against hand-tool manufacturers in the late 1980s. Griffin, whose practice emphasizes plaintiffs’ complex business fraud litigation, first associated as co-counsel with Brandt in the early 1990s when Brandt’s practice began to grow in volume and complexity, due, at least in part, to an $8.9 million jury verdict that Brandt had obtained against a hand-tool manufacturer called Snap-On Tools in 1989. In 1992, Brandt and Griffin litigated a case against another hand-tool manufacturer, Mac Tools, that resulted in a $2.4 million verdict. Due to the publicity generated by both those multimillion dollar verdicts, by fall 1993, the accused were handling 49 claims against Mac Tools. One of those claims belonged to Eric Bramel and his wife, Audrey.1
Bramel operated a Mac Tools distributorship in Spokane, Washington, from 1991 to 1992. Mac Tools ultimately terminated that distributorship, after which Bramel sought legal counsel. A former Snap-On Tools client referred Bramel to Brandt, and, in 1992, both the accused agreed to represent him.
As noted by the majority, Bramel initially had hoped to net $1.5 million from his claim. From the outset, however, *151Bramel conceded that his total out-of-pocket loss was approximately $142,000. In his first letter to Bramel in 1992, Brandt had cautioned Bramel that his prior $2.4 million verdict against Mac Tools included a large punitive damages award and that “Washington law does not recognize punitive damages.”1 2 In the letter, Brandt also stated that, because Mac Tools had recruited Bramel in California, Brandt would “try to argue that California law applie[d]” to Bramel’s punitive damages claim.
Although the accused began drafting a complaint for Bramel’s claims, they did not file that complaint. Instead, Bramel’s claims against Mac Tools were to be included in larger settlement negotiations that began in March 1993 between Mac Tools and plaintiffs’ counsel throughout the country, including the accused. In April 1993, Brandt informed Bramel that a realistic settlement demand would be $275,000, and Bramel reluctantly agreed. Brandt testified before the trial panel that that demand was higher than what he considered to be the actual value of Bramel’s claim, but that making higher demands was part of the negotiation strategy.
In August 1993, plaintiffs, including Bramel, participated in “mediation interviews” as part of the settlement process with Mac Tools. The purpose of those interviews was to allow Mac Tools’s lawyers to interview individual plaintiffs off-the-record and evaluate their claims. Following his interview, Mac Tools offered Bramel $26,000, minus $6,300 that Mac Tools claimed Bramel still owed for his tool inventory. Counsel for Mac Tools also informed Griffin that they were prepared to try Bramel’s case because they did not believe that his claim had significant value. Griffin recommended that Bramel reject the “unrealistically low” settlement offer, which he did. Subsequently, however, Bramel’s personal *152financial situation began to worsen, and he began to lower his settlement demand.
By fall 1993, when a second round of settlement negotiations began between Mac Tools, its parent company, The Stanley Works (collectively “Stanley”), and plaintiffs’ counsel, Bramel had reduced his settlement demand to $165,000. Of the approximately 115 claims involved in those negotiations, Brandt and Griffin were representing 49 clients, including Bramel. At the second “global settlement” meeting on November 5, 1993, Stanley proposed an $8 million settlement offer, which the plaintiffs rejected. The plaintiffs’ counsel countered with an offer to settle all claims for approximately $18 million — an aggregate sum of their individual clients’ demands. Stanley then increased its offer to $9.5 million, but plaintiffs rejected that offer as well.
It was during the November 5, 1993, meeting that Weddle, a vice-president for The Stanley Works, first raised the subject of Stanley retaining the plaintiffs’ lawyers to represent Stanley in the future. Weddle implied that, if the plaintiffs’ lawyers agreed to his proposal, their retainer fees would be substantial, stating: “We can make you very rich men.” Griffin, who was present at that meeting, interpreted the proposal as “bribery” and an attempt to buy them off. The plaintiffs’ counsel rejected the proposal and walked out of the meeting. Afterward, they informed Stanley that they would not discuss the employment issue while settlement negotiations were ongoing. Stanley agreed, and a third global settlement meeting was scheduled for December 20,1993.
No mention of a retainer agreement was made at the December 20, 1993, meeting, and the plaintiffs’ counsel believed that it was no longer an issue. At that meeting, the parties agreed to settle all the claims for $13.32 million, subject to approval by the individual plaintiffs. As mentioned by the majority, the individual settlement amounts offered to the accused’s clients reflected approximately 80 percent of their latest demands. Under the terms of the proposed settlement, Bramel would receive $133,045.31 and Mac Tools would forgive the sum of $6,300 that it claimed that Bramel owed. In fact, in Bramel’s case, that offer represented more than 80 percent of his latest demand ($165,000) and was *153almost seven times greater than Mac Tools’s original offer to Bramel ($26,000 minus $6,300).
Immediately after the December 20, 1993, meeting, Brandt and Griffin began contacting each of their clients to inform them of the proposed settlement amounts. Brandt testified that he believed that all 49 clients had agreed to the settlement figures by approximately January 4, 1994, although neither he nor Griffin remember talking to Bramel in particular.
On January 4,1994, counsel for Stanley faxed drafts of proposed settlement forms to Brandt. The forms contained boilerplate confidentiality and noncompetition provisions that essentially required the plaintiffs who agreed to settle also to agree that the terms of the agreement would be confidential and that they would not “voluntarily” cooperate with other potential claimants. None of the forms referred to Stanley retaining the plaintiffs’ counsel. The next day, however, the retainer issue resurfaced in a telephone conversation between Richards, one of the lawyers for Stanley, and Wagner, another plaintiffs’ lawyer involved in the global settlement negotiations. Wagner, who was considered by the rest of the plaintiffs’ counsel as the designated “point man” because of his proximity to Richards,3 responded to Stanley’s “resurrection” of the retainer issue with a letter dated January 6, 1994. When Wagner wrote that letter, no specific retainer agreement had been proposed since the November 5, 1993, meeting. Consequently, in his letter, Wagner expressed his concern over the telephone conversation in which the retainer issue had resurfaced, and he reiterated that the settlement reached on December 20, 1993, “was not contingent upon any agreement to represent or not represent Stanley or Mac [Tools], post settlement.” He also indicated that the drafts of the proposed settlement forms faxed on January 4, 1994 — that made no mention of being retained by Stanley— were acceptable to the plaintiffs’ lawyers. The accused agreed with Wagner’s assessment of the situation.
The same day, in response to Wagner’s letter, Richards faxed to plaintiffs’ lawyers a new paragraph that she *154proposed be inserted into the settlement agreements. The paragraph began:
“#. Retention of Counsel. Distributor understands that, upon execution of this Agreement resolving all matters and disputes between the Distributor and Mac Tools, counsel for the Distributor will be retained by Mac Tools * *
(Emphasis added.) Also attached to the proposed amendment was a copy of a case that Richards asserted “indicates that it is ethical and proper to have a retention agreement as part of a settlement agreement.”
In reaction, the plaintiffs’ counsel began discussing whether and how it would be possible to enforce the settlement agreement reached on December 20,1993, without the retainer provision. One option that they discussed was to file a lawsuit to enforce the December 20 settlement agreement. That option, however, would delay a conclusion to the suit and would impose additional expense on their clients. The plaintiffs’ counsel also were concerned about the settlement agreement breaking down entirely. That concern was heightened by their belief that the value of their clients’ claims was beginning to decrease and the strength of their positions beginning to weaken as a result of reports of similar cases in other parts of the country in which plaintiffs’ lawyers “were not getting good results.” Additionally, Stanley recently had obtained a summary judgment in a similar case, and Stanley’s lawyers had developed greater confidence about their ability to obtain similar judgments in other jurisdictions.
On January 11, 1994, Brandt and other plaintiffs’ counsel met once more with Stanley in Chicago. Weddle began the meeting by congratulating the plaintiffs’ counsel for reaching a settlement for their clients — reaffirming their belief that the settlement amount “was a done deal.” Brandt remembers that Weddle then stated, “Now that that’s done and the case is settled, we want to retain you.” The retainer agreement proposed by Stanley on this occasion, however, was different from the agreement previously rejected by the plaintiffs’ counsel on November 5, 1993. Stanley’s counsel explained that one of the reasons that Stanley wanted to retain the plaintiffs’ counsel was to avoid similar deceptive *155practices suits being filed against them in the future. To accomplish that objective, Stanley proposed that the plaintiffs’ counsel sign agreements to be retained by Stanley for the balance of 1994 and, in return, Stanley would pay each of them a nonrefundable retainer fee of $10,000. Under Stanley’s proposal, once signed, the agreements would be placed in escrow and would not go into effect until after all plaintiffs had executed their individual settlement agreements, all settlement amounts had been paid, and all pending actions had been dismissed. The plaintiffs’ counsel understood that, under that proposed arrangement, if one of their clients did not consent to future retainer by Stanley, none of the retainer agreements would go into effect. The plaintiffs’ counsel also understood that those clients who did agree still would receive their agreed settlement amounts even if other clients did not and the retainer agreements never took effect.
During the meeting, Brandt called Griffin, who was then in Portland, to discuss the new retainer proposal. Griffin, on the same day, called George Riemer, the Bar’s General Counsel, to discuss the ethical implications of the arrangement. Both Griffin and Riemer remember discussing DR 2-108(B) and whether retainer in connection with settlement of a case that was still pending might be possible. Griffin’s notes taken during that conversation — Riemer took no notes — reflect that he and Riemer also discussed the potential applications of DR 5-107(A), DR 5-101(A), DR 10-101(B), and, specifically, what “full disclosure” meant in that context. Riemer told Griffin that it was “hypothetically possible” to proceed with the proposed arrangement as long as he and Brandt complied with the disclosure and consent provisions.
Based on that advice, on their desire to reach a prompt resolution of their clients’ claims, and on their concern that, “if they did not accept the offer * * *[,] the settlement might be in jeopardy,” the accused agreed to Stanley’s retainer proposal. Both the accused testified that they would not have done so if Riemer had told them that the proposal was improper. Once signed, the agreements were placed in escrow with the mediator, pending execution of the settlement agreements by the individual plaintiffs.
*156I believe that it is necessary to address here the majority’s finding that Bramel had not agreed orally to the settlement offer “until after January 11, 1994.” 331 Or at 119. As I read the record, it is at least equally possible that Bramel had, in fact, agreed to the settlement offer before January 6 or, at the very latest, before the January 11 meeting. It is critical, I believe, to differentiate between Bramel’s knowledge and acceptance of the settlement amount, i.e., the offer made by Stanley on December 20,1993, to settle his case for $133,045.31, and his knowledge and acceptance of the settlement agreement, i.e., the agreement contained in the proposed settlement forms that included not only the settlement amount but also a provision acknowledging the accused’s retainer by Stanley.
The only evidence in the record concerning when Bramel agreed to the $133,045.31 settlement amount is the testimony of Bramel, and both the accused before the trial panel. Interestingly, the trial panel did not reach a finding on that point. Cf. In re Trukositz, 312 Or 621, 629, 825 P2d 1369 (1992) (when credibility of witness is material issue, court substantially relies on trial panel’s findings of fact). Notably, Bramel’s testimony conflicts with both the accused’s. My own review of the record persuades me that Bramel’s testimony about when he agreed to the settlement amount is suspect for three reasons. First, Bramel noted that he is “not very good” with dates and could not remember exactly when he talked with the accused. Second, Bramel testified that he first learned of the December 20, 1993, settlement amount when he received a letter from the accused on January 17, 1994. The record, however, is clear that Bramel had discussed the settlement amount with Griffin sometime before January 11 or, at the very latest, on January 13. Third, Bramel testified that three things concerned him about the settlement agreement. In his initial complaint to the Bar about the accused’s conduct, however, Bramel noted only two concerns with the settlement agreement. The concern conspicuously “missing” in Bramel’s original complaint involved his “concern” about the actual settlement amount. Based on the foregoing, I reject Bramel’s testimony concerning the date on which he agreed to the settlement amount. See generally UCJI 10.04 *157(when person intentionally gives false testimony in part, person’s testimony may be distrusted in its entirety).
Although Bramel testified that, prior to January 17, 1994, he had not told Griffin that he would accept the settlement agreement, he never testified directly that he previously had not agreed to the settlement amount. Brandt, on the other hand, testified that, by approximately January 4, he believed that he and Griffin had contacted all their clients regarding the acceptability of the settlement amounts negotiated at the meeting on December 20, 1993. Although Brandt also testified that, on January 6 he was concerned that they might have had some remaining clients to contact, he also testified that, when he attended the meeting in Chicago on January 11 he believed that Griffin had contacted Bramel and had obtained authority to settle Bramel’s case for the proposed settlement amount. That testimony is consistent with the plaintiffs’ counsel’s perspective going into that meeting, viz., that a settlement already had been reached. It also is consistent with Weddle’s announcement to the plaintiffs’ counsel at the start of that meeting: “Now that * * * the case is settled, we want to retain you.”
Finally, Griffin’s testimony does not conflict with Brandt’s regarding when Bramel agreed to the settlement amount. Griffin’s statement that he “may have mentioned” the settlement to Bramel prior to a conversation he had with Bramel on January 13,1994, but that he specifically remembers talking about “it” to Bramel on January 13, was in response to the following question by the Bar:
“Is January 13, 1994, the first date that you called Mr. Bramel in an attempt to tell him that there had been a settlement and to make full disclosure to him of the potential conflict of interest that you were in?”
(Emphasis added.) In other words, Griffin was confident that he had discussed both the settlement amount and the potential conflict with Bramel on January 13,1994. That does not mean, however, that he had not received Bramel’s approval of the settlement amount before January 11. Griffin testified *158that he had “numerous conversations” with Bramel concerning the settlement amount prior to their conversation on January 13. Griffin also testified that, in general, his conversations with his clients following the January 11 meeting had followed an unwritten “script” in which he would discuss, among other things, the amount and the potential conflict.
As detailed above, the record does not support a finding that it was highly probable that Bramel had not agreed to the settlement amount before January 11,1994. The absence of direct evidence on that issue does not support the majority’s conclusion that, on January 11, when the accused agreed to be retained by Stanley, Bramel had not agreed to the settlement amount reached on December 20, 1993. 331 Or at 119. In fact, apart from Bramel’s testimony, the accused’s testimony demonstrates that all of their clients, including Bramel, had approved the settlement amounts offered by Stanley before. January 11. See In re Gildea, 325 Or 281, 296-97, 936 P2d 975 (1997) (testimony of accused lawyer, if court deems it credible, is sufficient to establish facts). Accordingly, I find that Bramel had agreed to the amount of the proposed settlement before January 11.
Following the events of January 11, 1994, the accused began contacting each of their 49 clients to discuss the execution of the individual settlement agreements. Griffin specifically remembered talking to Bramel about the settlement agreement and the potential conflict on the phone on January 13, 1994. During that conversation, Griffin also recommended to Bramel that he seek independent legal advice concerning consent to the conflict.
Following their conversation on January 13, 1994, Griffin and Bramel had several additional discussions about Bramel’s case and about the settlement agreement. Bramel testified before the trial panel that at that time (January 1994) he was “in need of the settlement money” and was not in a position financially to reject the settlement offer and take his case to trial. Griffin testified before the trial panel that, because of the time and expense that would have been involved in trying the case and, because he did not think that Bramel would recover as much from a trial as he had in the *159settlement process, he had encouraged Bramel to accept the $133,045.31 settlement offer.1 **4
On January 17,1994, the accused mailed a letter to their clients, including Bramel, regarding the retainer agreement and seeking their clients’ signatures on documents consenting to the potential conflict of interest and approving the settlement agreements. The letter also advised the clients to consult independent counsel “to determine if consent should be given.” See 331 Or at 124-25 (setting out text of January 17 letter).
Bramel does not remember talking to Griffin on January 13, 1994. He claims that he first learned that his lawyers were “switching sides” when he received the letter mailed on January 17. According to Bramel, it was at that time that he decided to consult independent counsel for advice. Bramel’s first telephone call was to his accountant in Idaho. His accountant referred him to a lawyer in Idaho who, because he was not licensed to practice law in Washington, ultimately referred Bramel to Kuhling, a lawyer in Spokane, Washington. Kuhling’s records indicate that Bramel called him for the first time on January 18, 1994. During that conversation, Bramel informed Kuhling that he had been advised to seek independent counsel to review a proposed settlement agreement.5 The two met in person for the first time on January 24.
At some point between January 13 and January 26, 1994, Griffin learned that Bramel had contacted another lawyer. As a result, the accused obtained an extension of the *160original settlement deadline, January 26, 1994, to January 28, 1994, giving Bramel and three other clients additional time to sign their settlement agreements.
Griffin first spoke with Kuhling on January 27, 1994. During that conversation, Kuhling informed Griffin that he believed that a conflict of interest existed and that what “[Brandt and Griffin] were doing was unethical.” Kuhling told Griffin that “the only fair thing to do” was to waive his attorney fees and that, if he did so, Bramel would accept the $133,045.31 settlement offer. Griffin refused to waive his entire fee. Griffin also informed Kuhling that, if Bramel was going to accuse him of ethical violations, he would not be able to represent Bramel in his case against Mac Tools. Griffin offered to reduce his fee by $5,000, but, acting on Kuhling’s advice, Bramel rejected that offer.
Bramel ultimately signed the settlement agreement with Stanley. On January 31, 1994, Brandt sent Bramel a check for $73,174.92, the net amount of Bramel’s settlement after deducting attorney fees. Less than two months later, with Kuhling’s assistance, Bramel drafted and sent a complaint to the Bar.
Most of the remaining facts discussed by the majority primarily pertain to the alleged violation of DR 1-103(C) (requiring full and truthful responses to inquiries in disciplinary proceeding). Because I concur in the majority’s holding that the Bar did not prove by clear and convincing evidence that the accused violated DR 1-103(C), I shall refrain from repeating the facts that relate to that allegation.
ALLEGED VIOLATIONS
The majority concludes that the accused violated DR 5-101(A)(l) (prohibiting accepting or continuing employment when exercise of lawyer’s judgment will be or reasonably may be affected by lawyer’s own interest, except with client consent after full disclosure), DR 1-102(A)(3) (prohibiting engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and DR 2-108(B) (prohibiting, in connection with settlement, entering into agreement that restricts lawyer’s right to practice law). I begin with the alleged violations of DR 5-101(A)(l) and DR 1-102(A)(3).
*161The majority concludes that a conflict existed in violation of DR 5-101(A)(l) when the accused agreed to Stanley’s retainer proposal on January 11,1994, reasoning that at that time the accused “acquired an interest that did, or reasonably might have, affected the exercise of their professional judgment on behalf of Bramel.” 331 Or at 133. To the extent that the majority suggests that the accused’s professional judgment was affected by their own self-interest when the settlement offers were negotiated, I disagree.
The total settlement amount, $13.32 million, and Bramel’s individual settlement amount, $133,045.31, were negotiated and agreed to at the global settlement meeting held on December 20, 1993. The record is very clear that retainer was not an issue during the December 20 meeting. The record also indicates that the plaintiffs’ counsel believed that the $13.32 million was a favorable settlement for their clients and that Stanley would go no higher with their settlement offer. I emphasize that the final settlement amount offered by Stanley to each of the plaintiffs was negotiated without the retainer issue on the table. Bramel’s actual settlement amount serves as an example of the favorableness of the settlement offers negotiated by the accused on behalf of their clients. Bramel conceded when he retained the accused that his actual damages were approximately $142,000. That assessment presumably did not include the $6,300 that Mac Tools claimed that Bramel still owed for his tool inventory and that ultimately was forgiven. The record demonstrates that the ultimate settlement amount offered for Bramel’s claim was $133,045.31. That amount approximately is equal to Bramel’s actual damages ($142,000) minus the $6,300 he owed ($135,700). Consequently, I cannot agree that the accused were not striving to achieve the best possible settlement for their clients on December 20, or that their judgment somehow was clouded by a retainer offer that, in their minds, no longer existed. That is critical, because the amount agreed to on December 20 did not change as a result of the plaintiffs’ lawyers’ agreement to the retainer arrangement proposed by Stanley on January 11,1994.
To the extent, however, that the majority asserts that the accused’s professional judgment was affected by their own self-interest after they agreed to sign the retainer *162agreements on January 11,1994,1 agree. The majority and I part company, however, in our analysis of the disclosure given by the accused to Bramel concerning that conflict.
The majority concludes that the accused’s disclosure of that conflict under DR 10-101(B)(1) was insufficient.* **6 Focusing on the January 17, 1994, letter written by the accused to their clients — the purpose of which was to confirm oral disclosures that already had occurred — the majority emphasizes that the letter: (1) by its wording, led the clients to believe that there was no conflict; and (2) was insufficient because it did not inform the clients of the exact terms of the retainer agreements or of the escrow arrangement. 331 Or at 136-37.
The primary flaw in the majority’s analysis of the accused’s disclosure under DR 10-101(B) is its presumption that the January 17,1994, letter mirrored the oral disclosure that Griffin had made to Bramel on January 13.7 Based on the actions taken by Bramel after his conversation with Griffin on January 13, I conclude that Griffin fully had apprised Bramel orally about the potential conflict and the adverse impact that that conflict may have had on the settlement agreement negotiated on his behalf. Following that conversation, and before he could have received the January 17 letter, Bramel sought the advice of independent counsel to review the proposed settlement agreement.8 Bramel also testified that, although he might not have communicated it to Kuhling, he had been informed by Griffin that there was a deadline to agree to the settlement. Bramel’s impression that his lawyers had “switched sides” and had “deserted” him also indicate to me that Bramel was aware of the potential *163adverse impact that Stanley’s future retainer of the accused had on his case.8 9
Finally, I also would point out that, even if the January 17, 1994, letter had been the only disclosure made to Bramel — which it was not — I do not believe that DR 10-101(B)(1) required the accused to disclose every provision of the retainer arrangement that had been negotiated on January 11. That rule requires an adequate explanation of the nature of the potential conflict, not disclosure of each and every detail surrounding the potential conflict. The required disclosure occurred here. The letter disclosed that an offer to be retained at the close of the plaintiffs’ cases had been made by Stanley and accepted by the plaintiffs’ counsel. The letter disclosed that the acceptance of that offer might have created a potential conflict of interest. The letter also advised clients to seek independent legal advice to determine whether consent to the settlement and to the conflict should be given. And the letter was sent contemporaneously with the accused’s oral disclosures to their clients. Accordingly, I do not believe that DR 10-101(B)(1) required the accused to say more than was said in the January 17 letter and, therefore, I conclude that the requirements of “full disclosure” under that rule were satisfied.
To that end, I also note that, generally, lawyers are asked to do three things when they have a question regarding the disciplinary rules: (1) disclose to the client; (2) advise the client to seek independent legal advice; and, (3) call the Bar. The issue is not whether the accused did what they were advised to do, but whether what they did was sufficient. Because I believe that it was, I would hold that the Bar has not proved a violation of DR 5-101(A)(l) by clear and convincing evidence. I dissent from the majority’s holding that the *164Bar has done so, and I would dismiss the 5-101(A)(l) charge against each of the accused.
Turning to DR 1-102(A)(3), the majority concludes that the accused made “affirmative misrepresentations” to Bramel and to the Bar. 331 Or at 138-39, 140-41. That conclusion primarily is based on the majority’s interpretation of the words “after,” “separate,” and “finalized” used by the accused in their January 17, 1994, letter to Bramel describing what had transpired at the meeting with Stanley on January 11, and again in their letter dated April 21,1994, to the Bar, responding to Bramel’s complaint. The majority also concludes that the accused violated DR 1-102(A)(3), because they failed to inform Bramel that the retainer and escrow agreements had been signed on January 11 and failed to tell him about the indemnification terms included in the retainer agreement.
Again, my reading of the record indicates that the Bar has failed to demonstrate that its interpretation of the words “after,” “separate,” and “finalized” is more probable, let alone highly probable, in comparison with the interpretation of those words by the accused. The accused’s interpretation of those words especially is reasonable when one considers the sequence of events that took place between December 20, 1993, and January 11, 1994. The record indicates that the retainer arrangement in fact was proposed on January 11, after the parties had agreed to the settlement amount on December 20. The retainer arrangement also was separate from the settlement in that: (1) the offer was distinct from the settlement amount (“sum certain”) previously agreed to on December 20; (2) the retainer agreements were separate documents being held in escrow; and (3) the retainer agreements would not take effect unless all the individual clients consented to the retainer and until after all the individual settlement agreements were executed. As discussed above, the accused had disclosed to their clients the agreement to be retained by Stanley in the future, i.e., once consent from their clients had been given and the settlement was complete. Finally, the record indicates that all the plaintiffs’ counsel and Stanley believed that, as of December 20, the settlement “was a done deal.” I agree with the dissent wi itten bv my colleague Justice Riggs on this point: Under the circumstances, *165even though their clients had not yet signed the final settlement agreements, it was reasonable for the accused to believe that the settlement amount had been “finalized” before the retainer arrangement was proposed.
My view of the alleged misrepresentation by omission simply is that no such misrepresentation occurred. For the reasons explained above in my analysis under DR 10-101(B), I do not believe that the accused were required by the disciplinary rules to disclose to Bramel the details surrounding the retainer proposal or the terms of the retainer agreements themselves. Consequently, I conclude that the Bar has not proved clearly and convincingly that the accused engaged in conduct involving misrepresentation, either affirmatively or by omission, and I would dismiss the DR 1-102(A)(3) charges against them.
Finally, I concur in the majority’s holding that the accused violated DR 2-108(B), which provides:
“In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts the lawyer’s right to practice law.”
The agreement by the accused in this case to be retained in the future by Stanley, in connection with the settlement that they previously had negotiated for their clients, was a violation of DR 2-108(B). Although the signed retainer agreements would not go into effect until after all the plaintiffs had consented to the retainer and signed the settlement agreements, the effect of the agreement to be retained by Stanley, made by the plaintiffs’ lawyers in connection with the settlement, was the same as an agreement, made in connection with the settlement, never again to sue Stanley in the future. Although I agree with the accused’s assertion that all retainer agreements restrict a lawyer’s right to practice law in some way or another, not all agreements restricting a lawyer’s right to practice law are unethical under DR 2-108(B). Only those made in connection with settlement violate that rule.
DR 2-108(B) is a clear prohibition against restrictive covenants.10 As noted by the majority, the rationale behind *166DR 2~108(B) and Model Rule 5.6 (derived from DR 2-108(B)) is threefold: (1) such agreements restrict the public’s ability to retain counsel of choice; (2) within the context of such an agreement, the client’s actual recovery might have more to do with the desire to restrict an opponent’s practice than the merits of the client’s claim; and, (3) such agreements create potential conflicts of interest. ABA Formal Opinion 371 (April 16,1993). Those public policy concerns were not eliminated by the escrow arrangement entered into by the plaintiffs’ counsel on January 11, 1994. Consequently, I find by clear and convincing evidence that the accused entered into an agreement in connection with settlement that restricted their practice of law. In so finding, I concur in the majority’s holding that the accused violated DR 2-108(B).
In summary, because I would find that the Bar did not prove by clear and convincing evidence that the accused violated DR 5-101(A)(l), DR 1-102(A)(3), or DR 1-103(C), I would dismiss those charges against the accused. I concur, however, in the majority’s holding that the Bar proved that the accused violated DR 2-108(B).
SANCTION
Having determined that the conduct of the accused violated DR 2-108(B), I turn to the question of the appropriate sanction for that violation. In doing so, I bear in mind that the purpose of lawyer discipline proceedings, as provided by the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards), is to
“protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession.”
ABA Standard 1.1. This court similarly has noted:
*167“The objects of [lawyer discipline] proceedings are to uphold the dignity and respect of the profession, protect the courts, preserve the administration of justice and protect clients.”
In re Carstens, 297 Or 155, 166, 683 P2d 992 (1984).
Following the analytical framework for determining the appropriate sanction in lawyer disciplinary cases set forth in the ABA Standards, I first consider the following three factors: (1) the duty violated; (2) the accused’s mental state; and (3) the actual or potential injury caused by the accused’s misconduct. ABA Standards at 6; ABA Standard 3.0.
In this case, the only duty violated by the accused when they agreed to be retained by Stanley was their duty owed as professionals. ABA Standard 7.0. DR 2~108(B) is included among those rules that provide “ethical standards that are not fundamental to the professional relationship but which define certain standards of conduct.” Id. ABA Standard 7.0 provides, in part:
“* * * While [standards that are not fundamental to the professional relationship but which define certain standards of conduct] have been developed out of a desire to protect the public * * * a violation of these standards generally is less likely to cause injury to a client, the public, or the administration of justice * * *.
“In general, then, a sanction of disbarment or suspension will rarely be required, and a sanction of reprimand, admonition or probation will be sufficient to ensure that the public is protected and the bar is educated. * * *”
Turning to the accused’s mental state, I cannot agree with the majority’s conclusion that the accused acted intentionally when they violated DR 2-108(B). As mentioned above, this is the first disciplinary case in Oregon in which this court has had the opportunity to apply DR 2-108(B) in this context. After consulting with the Bar’s general counsel, the accused disclosed the retainer agreement to their clients and advised their clients to seek independent counsel. Based on the foregoing, and the totality of the circumstances surrounding the settlement negotiations with Stanley, I find that, at most, the accused acted negligently when they entered into the retainer agreement with Stanley, that is, *168they “fail[ed] to be aware of a substantial risk that circumstances exist or that a result will follow[.]” ABA Standards at 6.
Moving on to the injury caused by the accused’s conduct, I agree with the majority that the Bar has failed to demonstrate that the accused’s violation of DR 2-108(B) caused actual harm to Bramel, the public, or the legal system. There is nothing in the record that demonstrates that Bramel would have received a larger settlement if the accused had not agreed to be retained by Stanley. Unlike the majority, however, I also find that the conduct of the accused in this case caused little, if any, potential harm to Bramel, the public, or the legal system. I agree that, in some instances, an agreement to be retained in the future by an opponent could create the possibility that settlement of the current case does not reflect the value of the claims at issue in that case, because the professional judgment of the lawyer violating DR 2-108(B) might have been affected. In this proceeding, however, the settlement amounts negotiated by the accused for their clients were agreed to on December 20, 1993, at a time when, as far as the accused were concerned, being retained by Stanley was not an issue. Consequently, the accused’s professional judgment could not have been affected on December 20, 1993, by the retainer arrangement proposed subsequently on January 11,1994. Nor were their loyalties divided at the time when the settlement amount was negotiated. Furthermore, nothing in the record indicates that the settlement between Stanley and the accused’s clients did not reflect the value of the clients’ claims. In fact, the record demonstrates that the settlement amounts that the accused negotiated on behalf of their clients reflected approximately 80 percent of their clients’ latest demands.
Examining the duty violated, the accused’s mental state, and the lack of potential or actual injury caused by the violation of DR 2-108(B) in this proceeding, the accused’s violation implicates ABA Standard 7.3, which provides:
“Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.”
*169Having found that the accused’s misconduct was negligent and caused no actual injury and little, if any, potential injury to Bramel, the public, or the legal system, I make an initial determination that a reprimand is the appropriate sanction in this case.11
With that in mind, I next consider the applicable aggravating and mitigating factors. See ABA Standards at 6 (after making initial determination about appropriate sanction, court then considers relevant aggravating and mitigating factors). The only aggravating factor present in this case is that both the accused have substantial experience in the practice of law.12 ABA Standard 9.22(i). On the other hand, in mitigation, the accused provided full and free disclosure during the disciplinary investigation and had cooperative attitudes toward the proceedings. ABA Standard 9.32(e). Additionally, neither of the accused have a prior disciplinary record. ABA Standard 9.32(a); see also In re Cohen, 330 Or 489, 500, 8 P3d 953, 959 (2000) (inaccurate to characterize *170letter of admonition as form of “sanction” or “prior record” of discipline imposed on accused lawyer).
Finally, I turn to this court’s case law. When addressing a violation of a disciplinary rule for the first time, this court previously has held that a public reprimand is the appropriate sanction. In re Banks, 283 Or 459, 482, 584 P2d 284 (1978). Similarly, I conclude that a reprimand is sufficient to “ensure that the public is protected and the bar is educated” regarding violations of DR 2-108(B) under the circumstances presented by this case. ABA Standard 7.0.
Accordingly, following my examination of the applicable ABA Standards, keeping in mind that violation of DR 2-108(B) is the sole issue in this case, and taking into consideration the fact that this is the first time that this issue has been litigated in a disciplinary case in Oregon, I would conclude that a reprimand is the appropriate sanction for both the accused.
Riggs, J., joins in this opinion in part, as set forth in his separate opinion.Unless otherwise noted, all references to “Bramel” are to Eric Bramel. All references to “the Braméis” are to both Eric Bramel and his wife.
The Washington Supreme Court consistently has not allowed punitive damages, determining that their award would be contrary to public policy. Dailey v. North Coast Life Ins. Co., 129 Wash2d 572, 574, 919 P2d 589 (1996) (citing Spokane Truck and Dray Co. v. Hoefer, 2 Wash 45, 50-56, 25 P 1072 (1891)). In Washington, punitive damages are allowed only when expressly authorized by the Washington legislature. Winchester v. Stein, 135 Wash2d 835, 858, 959 P2d 1077 (1998).
Both Wagner and Richards practiced law in Ohio.
Brandt also testified that his assessment of the value of the Braméis’ case had become less favorable as his understanding of the details involved had developed. Brandt speculated that, based on Washington law and recent decisions by the United States Supreme Court, the odds of Bramel recovering punitive damages were slim. In addition, he was concerned about whether his clients could recover their economic damages due to Stanley’s recent summary judgment victory in an Ohio federal court.
Bramel admitted that two or three days elapsed between the time when he called his accountant and January 18, when he first spoke with Kuhling. Consequently, I conclude that he must have been informed of the potential conflict and advised to seek independent counsel before he received the letter dated and mailed January 17. The absolute earliest that Bramel could have received that letter was on January 18 — the day that he first spoke with Kuhling about representation and at least two days after he had begun his search for independent legal advice.
DR 10-101(B)(1) defines ‘Tflull disclosure” as:
‘TAln explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent.”
DR 10-10KBK2) states that “ ‘full disclosure’ ® shall be contemporaneously confirmed in writing.”
Bramel began his search for independent counsel two or three days before he actually spoke with Kuhling for the first time on January 18,1994, that is, after his January 13 telephone conversation with Griffin and before he received the January 17 letter. See 331 Or at 119 n 5 (so discussing).
agree with the majority’s proposition that, under DR 10-10KB), a client’s subjective understanding is not dispositive that the “full disclosure” requirements of the rule have been met. I do not agree, however, that a client’s subjective understanding is irrelevant to the inquiry. See DR 10-101(B)(1) (requiring “explanation sufficient to apprise the recipient of the potential adverse impact on the recipient”); cf. Macy v. Blatchford, 330 Or 444, 454, 8 P3d 204 (2000) (“An explanation clarifies an issue or makes it understandable to the recipient * * (Emphasis added.)).
Oregon Formal Ethics Opinion No 1991-47, approved by the Board of Governors, July 1991, provides that it would be unethical under DR 2-108(B) either to *166propose or to accept a settlement agreement that includes a provision in which a lawyer agrees that he never again will represent a client who has a claim against the defendant in the matter being settled.
ABA Standard 7.4 suggests that an admonition generally is appropriate when a lawyer
“engages in an isolated instance of negligence that is a violation of a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, or the legal system.”
The accused’s violation of DR 2-108(B) in this case was an isolated instance of negligence that caused little or no actual or potential injury to Bramel, the public, or the legal system. An admonition, however, is not an available sanction in a “disciplinary proceeding” such as this, in which the Bar charges a lawyer with misconduct “in a formal complaint.” See BR l.I(m) (“disciplinary [proceeding” defined as proceeding in which Bar charges lawyer with misconduct “in a formal complaint”); BR 6.1 (listing “sanctions” available in “disciplinary proceedings” as public reprimand, suspension, disbarment, restitution, and reimbursement to Client Security Fund); BR 5.5(a) (defining ‘Tpjrior record,” for purpose of prohibiting admission of same to prove character or to impeach as “any contested * * disciplinary * * * decision of the Disciplinary Board or the Supreme Court which has become final”).
Brandt has received a letter of admonition, dated August 3, 1993. In 1990, apparently in a hurry to meet a filing deadline, Brandt filed a third-party complaint against one of his law firm’s current clients without running a “conflict-check.” The first allegation in the admonition arose from that conduct, the second from Brandt allowing his staff to help prepare and file that third-party complaint.
Because the conduct that resulted in that admonition (current-client conflict) is not similar in nature to the misconduct that occurred in this case (restriction of the practice of law in connection with settlement), I do not consider that letter in aggravation. See In re Cohen, 330 Or 489, 500, 8 P3d 953, 959 (2000) (letter of admonition considered as evidence of earlier instance of misconduct only if earlier misconduct giving rise to letter of admonition was same or similar in nature to later misconduct).