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In re Complaint as to the Conduct of Kimmell8/30/2001
984).
A. Duty Violated
In this case, the accused violated his duty to the public to maintain standards of personal integrity. ABA Standard 5.1. As noted in the commentary to ABA Standard 5.0 at 36:
"The most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies. The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct."
B. Mental State
The accused admits that he acted intentionally, that is, with the "conscious objective or purpose to accomplish a particular result." See ABA Standards at 17 (defining "intent").
C. Injury
"Injury" includes actual or potential harm to a client, the public, the legal system, or the legal profession. ABA Standards at 6-7. As noted, the accused's conduct caused actual and potential harm to the department store from which he stole.
D. Preliminary Sanction
The accused's conduct implicates several ABA Standards. Disbarrment generally is appropriate when a lawyer: (1) engages in serious criminal conduct, such as a felony, and any lesser crime that includes theft as a necessary element; or (2) engages in any other intentional conduct involving dishonesty that "seriously adversely reflects on the lawyer's fitness to practice" law. ABA Standard 5.11(a) and (b). Suspension generally is appropriate when a lawyer knowingly engages in criminal conduct "that seriously adversely reflects on the lawyer's fitness to practice" law. ABA Standard 5.12.
Drawing together the duty violated, the accused's mental state, and the injury caused, our initial determination is that suspension or, possibly, disbarrment is the appropriate sanction. We next consider any aggravating and mitigating factors, and this court's case law.
E. Aggravating and Mitigating Factors
ABA Standard 9.22 identifies aggravating factors that may be relevant in a particular situation. Here, the accused has a prior disciplinary record. ABA Standard 9.22(a). After becoming an inactive member of the California Bar in 1992, the accused filed documents in California courts and continued to represent that he was admitted to practice law in California. Based on that misconduct, the accused was disciplined in Oregon in 1996 for violating DR 3-101(B) (prohibiting unlawful practice of law) and DR 2-101(A)(1) (prohibiting communications about lawyer that are materially misleading). Although the accused was sanctioned for those violations before he engaged in the misconduct at issue, their significance is lessened in this proceeding, because they involved misconduct different in kind from that at issue here and resulted only in a public reprimand. See In re Jones, 326 Or 195, 200, 951 P2d 149 (1997) (setting out nonexhaustive list of factors that serve to heighten or diminish significance of earlier misconduct). The accused also acted with a dishonest and selfish motive. ABA Standard 9.22(b).
Only one mitigating factor is present: The accused expressed remorse. ABA Standard 9.32(l).
F. Case Law
In determining the appropriate sanction, this court also examines the accused's conduct in the light of this court's prior case law. The accused contends that "not all thefts are equally 'serious'" and that, because his theft was an isolated act that did not arise "in a professional context," only a short suspension is warranted. The Bar disagrees. Relying on a footnote in In re Pierson, 280 Or 513, 517-18 n 1, 571 P2d 907 (1977), in which this cour
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