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In re Complaint as to the Conduct of Kimmell8/30/2001
Argued and submitted May 3, 2001; reassigned June 20, 2001.
The accused is suspended from the practice of law for a period of six months, commencing 60 days from the date of filing of this decision.
In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with violating two disciplinary rules of the Code of Professional Responsibility: Disciplinary Rule (DR) 1-102(A)(2) (prohibiting commission of "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law"); and DR 1-102(A)(3) (prohibiting "engag in conduct involving dishonesty, fraud, deceit or misrepresentation"). The Bar also alleged that the accused violated ORS 9.527(1) (conduct justifying denial of Bar admission). A trial panel of the Disciplinary Board found that the accused violated only DR 1-102(A)(3) and suspended him from the practice of law for six months.
The Bar sought review of the trial panel's decision. ORS 9.536(1); Bar Rule of Procedure (BR) 10.3. This court reviews the record de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. We hold that the accused violated DR 1-102(A)(2) and DR 1-102(A)(3), and suspend him from the practice of law for six months.
I. FACTS
The accused first was admitted to the practice of law in New York in 1978. In 1985, he was admitted to practice in California. In New York and California, the accused's practice focused on business transactions. In 1991, the accused was admitted to the practice of law in Oregon. From 1991 to the present, he has had a solo practice primarily in the areas of personal injury and criminal law.
On September 28, 1997, the accused entered a department store, placed a jacket in a black shoulder bag that he was carrying, and left the store without paying for the jacket. After observing the accused's conduct via video surveillance, store personnel apprehended him outside the store. The accused objected to being detained and denied any wrongdoing. Even after the jacket was found in his bag with the department store tags still attached, the accused maintained that the jacket belonged to him. Police arrested the accused and charged him with theft in the second degree. ORS 164.045.
Theft in the second degree is a Class A misdemeanor. ORS 164.045(2). However, because the accused had no prior criminal convictions, the Multnomah County District Attorney's office elected to prosecute the offense as a violation. Former ORS 161.565(2) (1997), repealed by Or Laws 1999, ch 1051, ยง 49. The accused pleaded guilty to the offense, and the trial court imposed a $200 fine, $100 of which would be suspended if the accused attended an "anti-theft talk" within 90 days.
The Multnomah County District Attorney's office notified the Bar of the accused's conviction and, in February 1999, the Bar filed a formal complaint against the accused. In his answer, the accused admitted that he had committed the alleged misconduct. However, he asserted that the Bar's complaint should be dismissed because his "conduct was prosecuted as a violation, and [former] ORS 161.565(4) [(1997)] provides that such a conviction 'does not give rise to any disability or legal disadvantage.'"
Before the trial panel, the accused conceded that he had committed theft and that his conduct was dishonest and intentional. He also testified that he had acted impulsively, that he was remorseful and that, although he previously had shoplifted as a child, he had learned from his most recent "mistake" and "never would do it again." In support of those contentions, the accused offered the test
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