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In re Complaint as to the Conduct of Kimmell8/30/2001
imony of Dr. True, a licensed psychologist. True opined that, even when viewed together with the accused's childhood shoplifting incidents, the recent incident was not indicative of a pattern of criminal behavior. However, True acknowledged that, without additional treatment, there existed "at least some significant chance that * * * similar incidents could happen in the future." Dr. Scherr, a licensed psychologist who testified on the Bar's behalf, also opined that, without treatment, the accused is "susceptible to dishonest behavior."
As noted, the trial panel concluded that the accused's misconduct was dishonest, in violation of DR 1-102(A)(3). However, the trial panel concluded that, under former ORS 161.565(4) (1997), the accused could not be subject to discipline under either DR 1-102(A)(2) or ORS 9.527(1). Based on the DR 1-102(A)(3) violation, the trial panel imposed a six-month suspension and recommended that the accused's readmission be conditioned on proof that he successfully had completed counseling and had demonstrated that he was not likely to engage in similar dishonest conduct in the future.
II. DISCUSSION
A. Former ORS 161.565(4) (1997)
We first address the accused's assertion that, because he pleaded guilty to a violation and not to a crime, former ORS 161.565(4) (1997) precludes lawyer discipline for the same conduct, i.e., theft of the jacket. For the following reasons, we reject that argument.
Former ORS 161.565(4) (1997) provided:
"Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime."
Under that statute, persons convicted of a violation are prohibited from suffering "any disability or legal disadvantage" that they would have suffered had they been convicted of a crime, as opposed to a violation.
Assuming, without deciding, that a disciplinary sanction qualifies as either a "disability or legal disadvantage" under former ORS 161.565(4) (1997), that statute does not apply to this proceeding, because none of the charged violations in this disciplinary action is based on the accused's conviction. Proof of conviction is not required to find a violation of DR 1-102(A)(3) or ORS 9.527(1). Similarly, although DR 1-102(A)(2) requires the court to examine an alleged "criminal act," this court has held that proof that an accused lawyer was convicted for such an act is not required to find a violation of DR 1-102(A)(2). In re Allen, 326 Or 107, 120, 949 P2d 710 (1997). Because this disciplinary action is not based on the accused's conviction, but rather on the accused's conduct, former ORS 161.565(4) (1997) is not a defense to the violations alleged.
The accused argues, and the trial panel agreed, that this court's application of ORS 161.705 in In re Sonderen, 303 Or 129, 734 P2d 348 (1987), supports his contention that former ORS 161.565(4) (1997) precludes Bar discipline here. The accused's reliance upon Sonderen is misplaced.
The court in Sonderen concluded that the accused lawyer was not subject to discipline under ORS 9.527(2) when a felony conviction later was reduced to a misdemeanor that was not a crime involving moral turpitude. Unlike the violations at issue in this proceeding (DR 1-102(A)(2), DR 1-102(A)(3), and ORS 9.527(1)), discipline under ORS 9.527(2) depends on proof of a certain type of conviction. See Allen, 326 Or at 116 (ORS 9.527(2) authorizes court to discipline lawyers for conviction of only two types of criminal offenses -- felonies and misdemeanors involving moral turpitude). As noted, the violations at issue here do not require proof of any conviction at all, much less any particular
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