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In re Complaint as to the Conduct of Summer2/3/2005
on client's property); In re Benett, 331 Or 270, 14 P3d 66 (2000) (180-day suspension after receiving and then refusing to refund opposing counsel's inadvertent duplicate payment).
In cases involving fraud, theft, or misrepresentation, this court has imposed a range of sanctions depending on the nature and type of theft or misrepresentation. This court has stated that "theft from a client is the most egregious form of theft that can be committed by a lawyer and generally warrants disbarrment." See Kimmell, 332 Or at 490 (citing In re King, 320 Or 354, 883 P2d 1291 (1994) (so stating); In re Phelps, 306 Or 508, 520, 760 P2d 1331 (1988) (when lawyer "steals funds from a client, the sanction is disbarrment" despite mitigating factors); In re Pierson, 280 Or 513, 518, 571 P2d 907 (1977) (single conversion of client funds will result in disbarrment)).
On the other hand, this court's cases also demonstrate that theft from someone other than a client that occurs outside the practice of law generally will not result in disbarrment or a lengthy suspension. Id. at 490-91 (citing In re Mahr, 276 Or 939, 556 P2d 1359 (1976) (90-day suspension for theft of plug socket from store)); In re Carstens, 297 Or 155, 683 P2d 992 (1984) (public reprimand for conversion of wife's joint ownership interest in vehicle)).
Although this court distinguishes between those thefts resulting in harm to a client and those that do not, this court takes seriously any theft and misrepresentation that occurs within the practice of law. See In re Huffman, 331 Or 209, 13 P3d 994 (2000) (two-year suspension for misrepresentations in motions filed with court).
In Benson, this court imposed a 180-day suspension when a lawyer violated DR 1-102(A)(3), DR 7-102(A)(5), and two other disciplinary rules. Benson, 317 Or at 166, 168. That accused lawyer filed fraudulent encumbrances on his client's property with the intent to assist the client in illegally interfering with the property's impending forfeiture. Id. at 166-67. Although that accused lawyer had only one prior disciplinary violation, the "significant and ongoing potential for harm to the criminal justice system" warranted this court's imposition of a 180-day suspension from the practice of law. Id. at 170-71.
In Benett, that accused lawyer violated DR 1-102(A)(3) when he received and retained a second payment made by opposing counsel after a first payment failed to clear the bank. Benett, 331 Or at 272-73. That accused lawyer ultimately retained both payments when opposing counsel reissued a second check and the bank cleared the first check. Id. That accused lawyer failed to notify opposing counsel that the first check had cleared and later represented to opposing counsel that the overpayment settled an additional claim against the client in question. Id. at 273. This court imposed a 180-day suspension, because that accused lawyer committed multiple offenses and because several aggravating factors applied. Id. at 281-82.
Here, the accused committed a criminal act within the practice of law, as did the accused lawyer in Benson, and acted with dishonesty within the practice of law, as did the accused lawyer in Benett. Notwithstanding mitigating factors, we conclude that a 180-day suspension from the practice of law is the sanction most consistent with our past treatment of similar misconduct.
The accused is suspended from the practice of law for a period of 180 days, commencing 60 days from the date of filing of this decision.
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