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In re Complaint as to the Conduct of Kimmell8/30/2001
type of conviction. Thus, Sonderen provides no assistance to the accused.
In sum, we conclude that former ORS 161.565(4) (1997) is not a defense to the disciplinary violations alleged in this case. Consequently, if the Bar has established the alleged violations by clear and convincing evidence, former ORS 161.565(4) (1997) does not preclude this court from disciplining the accused.
We turn now to the alleged violations.
B. DR 1-102(A)(2)
DR 1-102(A)(2) provides that it is professional misconduct for a lawyer to " ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.]" To find a violation of DR 1-102(A)(2), the court must determine whether: (1) the accused committed a criminal act; and (2) the act reflects adversely on the accused's honesty, trustworthiness, or fitness to practice law. Allen, 326 Or at 120.
The accused admits that he committed a criminal act, namely theft. The accused also acknowledges that his conduct was dishonest. On the basis of those concessions, we conclude that the Bar has proven that the accused violated DR 1-102(A)(2) by committing a criminal act that reflects adversely on his honesty.
C. DR 1-102(A)(3)
DR 1-102(A)(3) provides, in part, that it is professional misconduct for a lawyer to " ngage in conduct involving dishonesty[.]" The accused concedes that his conduct was dishonest. Accordingly, we conclude that he violated DR 1-102(A)(3).
D. ORS 9.527(1)
As noted, the Bar chose, in addition to the disciplinary rule violations, to charge the accused with a violation of ORS 9.527(1). Although, in the past, this court has found that the same conduct can violate both the Code of Professional Responsibility and a provision of ORS Chapter 9, see, e.g., In re Gatti, 330 Or 517, 8 P3d 966 (2000); In re Allen, 326 Or 107, 949 P2d 710 (1997); In re Bridges, 298 Or 53, 688 P2d 1335 (1984) (each so finding), such a finding generally has not served to enhance the sanction that this court has imposed for the violation or violations of the Code of Professional Responsibility. In this case, the Bar does not argue that a finding that the accused violated ORS 9.527(1), in addition to DR 1-102(A)(2) and DR 1-102(A)(3), for theft of the jacket would enhance the sanction that we would impose for the accused's violations of the disciplinary rules. We conclude that a finding that the accused violated ORS 9.527(1) would have no practical effect on the sanction that we impose in this case. Therefore, we decline to address the Bar's charge that the accused violated that statute.
Having found that the accused violated DR 1-102(A)(2) and 1-102(A)(3) when he committed theft in the second degree, we turn now to the question of sanction.
III. SANCTION
This court's methodology in determining the appropriate sanction for violations of the disciplinary rules is well established. See In re Jaffee, 331 Or 398, 408, 15 P3d 533 (2000) (describing methodology). Consistent with that methodology, we refer to the American Bar Association Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and to this court's case law for guidance in determining the appropriate sanction. In doing so, we are mindful that
" roceedings for the discipline of an attorney are not to punish the attorney for the commission of a crime. That matter is left to the criminal courts. The objects of the proceedings here 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 (1
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