In Re Complaint as to the Conduct of McDonough
In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged Michael L. McDonough (the accused) with violating Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(2) (committing criminal act that reflects adversely upon lawyer’s honesty, trustworthiness, or fitness to practice law) and with being subject to discipline under ORS 9.527(1) (conduct justifying denial of admission to Bar). A trial panel of the Disciplinary Board concluded that the accused was guilty of the alleged misconduct and imposed an 18-month suspension. Our review is automatic, ORS 9.536(2); BR 10.1, and
de novo,
ORS 9.536(3); BR 10.6. The Bar has the burden of establishing the alleged misconduct by clear and convincing
The following facts are undisputed. In three separate incidents that occurred between 1983 and 1985, the accused twice committed the crime of Reckless Driving, a Class A misdemeanor, and twice committed the crime of Driving Under the Influence of Intoxicants (DUII), also a Class A misdemeanor.
In 1994, the accused again was charged with the crime of DUII, for which he ultimately was convicted in 1996. The accused unsuccessfully appealed his conviction, and, in January 1998, he was fined and sentenced to 30 days in jail (with 28 days suspended), he was placed on probation for 12 months, and his driver license was suspended for one year. Nine months later, in September and early October of 1998, the accused was charged with Driving While Suspended, a Class A misdemeanor, on three separate occasions.
On October 11, 1998, the accused and his then-girlfriend, Wardell, spent an evening drinking heavily at a tavern in Salem. Although the accused knew that Wardell was intoxicated, he allowed her to drive when they left the tavern. Wardell drove to Interstate 5, and, on the freeway entrance ramp, the accused and Wardell became engaged in a physical struggle. The accused ultimately pulled Wardell out of the vehicle by her hair and ordered her to get into the passenger seat of the vehicle. When Wardell refused, the accused started to drive, and Wardell jumped on the hood of the vehicle. The accused continued to drive onto the freeway and then attempted to throw Wardell off the vehicle by hitting his brakes. After he had driven approximately a quarter of a mile with Wardell still clinging to the hood of the vehicle, a state police trooper stopped and arrested the accused. The accused registered a blood alcohol level of 0.14, and he was charged with Driving While Suspended, DUII, Assault in the Fourth Degree, Recklessly Endangering Another Person, and Reckless Driving. Wardell suffered minor injuries from the incident.
From the charges from that incident on October, 11, 1998, together with the accused’s three prior 1998 Driving While Suspended charges, the accused ultimately was convicted of two counts of Driving While Suspended, one count of DUII, and one count of Recklessly Endangering Another Person. For those convictions, in February 1999, the accused was fined and sentenced to 12 days in jail, he was placed on probation for 24 months, and his driver license was suspended for three years.
Six months later, in August 1999, the accused again was charged with the crime of Driving While Suspended, for which he was convicted in December 1999. For that conviction, the accused was sentenced to 180 days in jail (with 150 days suspended).
Finally, on January 24, 2001, and on September 5, 2001, the accused again was charged with Driving While Suspended. Both those charges subsequently were dismissed.
In October 2001, the Bar filed a Second Amended Formal Complaint, alleging that the accused had violated DR 1-102(A)(2) and was subject to discipline under ORS 9.527(1) because he had committed the following criminal acts:
“1. In 1983, Reckless Driving, a Class A Misdemeanor;
“2. In 1984, Driving Under the Influence of Intoxicants and Reckless Driving, Class A Misdemeanors;
“3. On August 19, 1985, Driving Under the Influence of Intoxicants, a Class A Misdemeanor;
“4. On December 27, 1994, Driving Under the Influence of Intoxicants, a Class A Misdemeanor;
“5. On September 22,1998, Driving While Suspended, a Class A Misdemeanor;
“6. On September 30,1998, Driving While Suspended, a Class A Misdemeanor;
“7. On October 6, 1998, Driving While Suspended, a Class A Misdemeanor;
“8. On October 11, 1998, Driving While Suspended/ Revoked, a Class A Misdemeanor;
“9. On October 11, 1998, Driving Under the Influence of Intoxicants, a Class A Misdemeanor;
“10. On October 11, 1998, Recklessly Endangering Another, a Class A Misdemeanor;
“11. On October 11, 1998, Assault IV, a Class A Misdemeanor;
“12. On October 11, 1998, Reckless Driving, a Class A Misdemeanor;
“13. August 12,1999, a violation of probation;
“14. On August 12, 1999, Driving While Suspended, a Class A Misdemeanor;
“15. On January 24, 2001, Driving While Suspended, a Class A Misdemeanor;
“16. On September 5, 2001, Driving While Suspended, a Class A Misdemeanor.”
At the disciplinary hearing in January 2002, the trial panel determined that the accused had committed all the alleged criminal acts and that, in doing so, had violated DR 1-102(A)(2) and was subject to discipline under ORS 9.527(1). As noted, for that misconduct, the trial panel suspended the accused from the practice of law for a period of 18 months.
On review, the accused admits to all the criminal conduct that the Bar alleges, except the two allegations of Driving While Suspended on January 24, 2001, and on September 5, 2001 (acts 15 and 16 in the Bar’s Second Amended Formal Complaint). He disputes, however, that his criminal acts constitute a violation of DR 1-102(A)(2) or cause him to be subject to discipline under ORS 9.527(1). He also contends that, in any event, the 18-month suspension that the trial panel imposed is an excessive sanction.
From our review of the record, we agree with the accused that the Bar has failed to establish by clear and convincing evidence that the accused was guilty of Driving While Suspended in January and September of2001. We accept the accused’s admission as to the truth of the other alleged criminal acts. On de novo review, we now must determine whether, by engaging in such criminal conduct, the accused violated DR 1-102(A)(2) and is subject to discipline under ORS 9.527(1) and, if so, the appropriate sanction for that misconduct.
DR 1-102(A)(2) provides:
“It is professional misconduct for a lawyer to * * * [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law[.]”
As noted, the accused here admits to committing the following Class A misdemeanors: (1) four acts of DUII, ORS 813.010; (2) five acts of Driving While Suspended, ORS 811.182; (3) three acts of Reckless Driving, ORS 811.140; (4) one act of Assault in the Fourth Degree, ORS 163.160; and (5) one act of Recklessly Endangering Another Person, ORS 163.195. He also admits to a probation violation. In light of those admissions, the focus of our inquiry under DR 1-102(A)(2) is whether the accused’s criminal acts reflect adversely upon his “honesty, trustworthiness or fitness to practice law[.]”
The Bar does not contend that the criminal acts at issue raise doubts as to the accused’s honesty or trustworthiness; rather, the Bar contends that those acts reflect adversely upon the accused’s fitness to practice law. In
In re White,
“the lawyer’s mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and thepresence or absence of a pattern of criminal conduct.”
Id.
Applying those factors here, we agree with the Bar that the accused’s criminal acts reflect adversely upon his fitness to practice law. The accused knew that the law prohibited him from driving while he was intoxicated and while his license was suspended; however, despite that knowledge and despite criminal sanctions that he had received for such conduct, the accused nevertheless repeatedly chose to drive in violation of those laws. Based upon those facts, we conclude that the accused’s repeated criminal offenses were intentional and demonstrated a substantial disrespect for the law.
See In re Lawrence,
The Bar also alleges that, by committing the above criminal acts, the accused is subject to discipline under this court’s authority set out in ORS 9.527(1), which provides:
“The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that * * * [t]he member has committed an act or carried on a course of conduct of such nature that, if the member were applying for admission to the bar, the application should be deniedf.]”
ORS 9.220 provides, in part:
“An applicant for admission as attorney must * * * show that the applicant * * * [i] s a person of good moral character and fit to practice law. * * * For purposes of this section [,] * * * the lack of ‘good moral character’ may be established by reference to acts or conduct that reflect moral turpitude or to acts or conduct which would cause a reasonable person to have substantial doubts about the individual’s honesty, fairness and respect for the rights of others and for the laws of the state and the nation. The conduct or acts in question should be rationally connected to the applicant’s fitness to practice law.”
As discussed above, the accused’s criminal conduct, particularly his refusal to abide by sanctions imposed for that conduct, reflects a substantial disrespect for the law and rationally is connected to the question of his fitness to practice law. Because such conduct would cause us to deny the accused’s admission if he were an applicant to the Bar, we conclude that the accused also is subject to discipline under ORS 9.527(1).
See In re Rowell,
Having concluded that the accused is guilty of violating DR 1-102(A)(2) and is subject to discipline under ORS 9.527(1), we now must determine the appropriate sanction. In doing so, we follow this court’s well-established methodology by referring to the American Bar Association’s
Standards for Imposing Lawyer Sanctions
(1991) (amended 1992) (ABA Standards) and to this court’s case law for guidance.
See, e.g., In re Kimmell,
Under the ABA Standards, we first make a preliminary determination of the appropriate sanction by considering the duty that the accused violated, the accused’s mental state, and the injury that the accused’s
We next consider the existence of any aggravating or mitigating circumstances that may affect the degree of the sanction to be imposed. ABA Standard 3.0. In this proceeding, we find several aggravating factors. When he drove after his driver license had been suspended, the accused acted with a selfish motive, that is, to serve his own personal convenience. ABA Standard 9.22(b). The accused also engaged in a pattern of misconduct by repeatedly committing multiple criminal offenses. ABA Standard 9.22(c). In addition, the accused has substantial experience in the practice of law, having been admitted to the Bar in 1976. ABA Standard 9.22(i). Finally, we agree with the trial panel that the accused has failed to appreciate the seriousness of his misconduct. ABA Standard 9.22(g).
In mitigation, we first note that chemical dependency, including alcoholism, can operate as a mitigating factor when the accused lawyer shows that (1) there is medical evidence that such a dependency exists; (2) the dependency
caused the misconduct; (3) the accused lawyer has accomplished a meaningful and sustained period of recovery from such dependency; and (4) the recovery arrested the misconduct, and recurrence of the misconduct is unlikely. ABA Standard 9.32(i) (amended 1992);
see In re Murdock,
We find the existence of several other mitigating factors. The accused has no prior disciplinary record, ABA Standard 9.32(a), and he introduced evidence that he has a reputation for honesty in the legal community, ABA Standard 9.32(g). The accused also cooperated during the disciplinary proceeding, ABA Standard 9.32(e), and other penalties have been imposed against the accused in the form of criminal sanctions, ABA Standard 9.32(k). In addition, in determining the appropriate sanction for the accused’s misconduct, we place diminished weight upon the accused’s criminal acts that occurred in 1983,1984, and 1985, because of the lengthy
We now turn to a consideration of the appropriate sanction in light of this court’s case law. The accused argues that this court should craft a sanction to address the accused’s alcohol dependency by imposing a period of probation with the condition that the accused participate in alcohol treatment. The Bar disagrees and contends that the 18-month suspension that the trial panel imposed is the appropriate sanction.
In considering the appropriate sanction for disciplinary violations involving criminal conduct, this court previously has observed that
“[plroceedings 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,
To protect the public and to uphold the respect of the legal profession, this court’s case law demonstrates that disbarment or a lengthy suspension generally is appropriate when a lawyer intentionally has committed criminal acts in violation of DR 1-102(A)(2).
See, e.g., In re Davenport,
In
Kimmell,
In
In re Allen,
Unlike the accused lawyers either in
Kimmell
or in
Allen,
the accused here engaged in criminal conduct time and time again. The accused’s repeated criminal acts and, particularly, his refusal to abide by sanctions imposed for his criminal conduct, reflect a substantial disrespect for the law. In addition, although his misconduct here did not culminate in such serious consequences to others as did the accused lawyer’s misconduct in
Allen,
the accused’s conduct on October 11,
Although a number of mitigating factors also apply in this proceeding, we find that the above-listed aggravating factors outweigh those mitigating factors. The accused’s repeated criminal acts persuade us that the accused presently lacks good moral character and fitness to practice law. We agree with the trial panel that the appropriate sanction is a suspension from the practice of law for a period of 18 months.
The accused is suspended from the practice of law for a period of 18 months, effective 60 days from the filing of this decision.
Notes
Although we conclude that the accused is subject to discipline under ORS 9.527(1), that finding does not enhance the sanction for the accused’s misconduct in light of our determination that the accused’s conduct also constituted a violation of DR 1-102(A)(2).
See In re Kimmell,
On review, the accused argues that the trial panel erred by admitting the testimony of a number of witnesses whose testimony related to the accused’s use of alcohol and his compliance with alcohol treatment because, according to the accused, that testimony was not relevant to any issue in the disciplinary proceeding. See BR 5.1(a) (trial panel should exclude irrelevant evidence in disciplinary hearing). We disagree. Although that testimony was not relevant to the issue whether the accused had committed the alleged misconduct, that evidence was relevant to the issue of the appropriate sanction and, particularly, the existence of the mitigating factor of chemical dependency. The trial panel did not err by admitting that evidence.