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In re Complaint as to the Conduct of Kimmell8/30/2001
t questioned the relevance of the distinction between theft from a client and theft from a non-client, the Bar submits that "theft is theft" and asks this court to disbar the accused.
Theft from a client is the most egregious form of theft that can be committed by a lawyer and generally warrants disbarrment. See, e.g., In re King, 320 Or 354, 359, 883 P2d 1291 (1994) (so stating); In re Phelps, 306 Or 508, 520, 760 P2d 1331 (1988) (where an accused "steals funds from a client, the sanction is disbarrment," despite mitigating circumstances); Pierson, 280 Or at 518 (single conversion of client funds will result in disbarrment).
This court also has held that theft from someone other than a client may result in disbarrment or a lengthy suspension. For example, in In re Pennington, 220 Or 343, 348 P2d 774 (1960), the court disbarred a lawyer who misappropriated partnership funds. In doing so, the court noted that violating a fiduciary duty owed to a partnership was "no less abhorrent" than violating a fiduciary duty owed to a client. Similarly, in In re Murdock, 328 Or 18, 968 P2d 1270 (1998), this court disbarred a lawyer who embezzled more than $9,000 from his law firm. In In re Stodd, 279 Or 565, 568 P2d 665 (1977), a lawyer was suspended for two years after he converted funds from a nonprofit organization of which he was president.
Other cases involving theft from someone other than a client have not resulted in disbarrment or a lengthy suspension. In In re Mahr, 276 Or 939, 556 P2d 1359 (1976), this court imposed a 90-day suspension on a lawyer who was convicted of second-degree theft after stealing a plug socket from a department store. In In re Carstens, 297 Or 155, 683 P2d 992 (1984), a lawyer who converted his wife's joint ownership interest in a vehicle received a public reprimand. In doing so, the court emphasized that the accused's poor judgment arose from his ongoing marital dissolution proceeding and that the act for which he was convicted was unlikely to recur. Id. at 167.
The foregoing discussion demonstrates that, historically, this court has been of the view that there is a distinction between lawyer theft that results in a violation of a fiduciary duty and lawyer theft that does not. In most instances, a lawyer who misappropriates property or funds while acting in a fiduciary capacity will be sanctioned more severely than a lawyer who misappropriate property or funds outside that capacity.
Having made that distinction, and keeping in mind that the accused was not acting in a fiduciary capacity when he committed the theft at issue, we note that theft is, nevertheless, an act of "serious misconduct involving moral turpitude," Mahr, 276 Or at 943. In this proceeding, the accused admits that he committed theft, that the decision to commit theft "came easily" to him, that he acted intentionally, that his conduct was dishonest, and that he was "surprised" by how seriously the Bar took that misconduct. The accused's conduct demonstrates a disrespect for the law that he has taken an oath to uphold, calling into question that which is required of every lawyer -- good moral character. See In re Tobiga, 310 Or 46, 51-52, 791 P2d 830 (1990) (admission statute requires showing of good moral character to protect public in their dealings with practitioners).
Because this case involves aggravating factors, a more lengthy suspension than the 90-days imposed in Mahr is warranted. However, because this case does not involve the violation of a fiduciary duty, a suspension that is shorter than the two-year suspension imposed in Stodd is appropriate. Accordingly, we conclude that the accused's violations of DR 1-102(A)(2) and DR 1-102(A)(3) warrant a
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