*1 328 April 29, 1997, suspended Argued and for six submitted months 23, 1998 January In Complaint re as the Conduct STARR,
DENI Accused. S41967)
(OSB 94-145; SC P2d 1017 *2 329-a *3 Counsel, Lake Angus, Disciplinary
Jane E. Assistant Oregon the cause and filed for the Oswego, argued brief State Bar.
PER CURIAM
Gillette, J., concurring part spe- opinion filed an Durham, Hoomissen and concurring in with Van cially part, JJ., joining.
329-b *4 PER CURIAM proceeding. Oregon discipline The
This is a (Bar) alleges DR Bar the accused violated State 1-102(A)(3) involving dishonesty, (engaging fraud, in conduct 9-101(A) (1992) misrepresentation), DR deceit, or former account), (failing deposit funds a client into a trust all of 9-101(B)(l) (1992) (failing notify promptly to a DR and former funds). panel receipt A guilty of of the client’s trial client of violating Disciplinary of Board found the accused disciplinary rules and concluded that disbarment is those appropriate sanction. sanction, the extent this court must
Because of of 9.536(2); panel’s Rule of Pro- the trial decision. ORS review (BR) panel’s This court reviews trial decision cedure 10.1. 9.536(3); BR The Bar has the burden of novo. ORS 10.6. de convincing establishing evidence. misconduct clear and BR 5.2. review, de conclude that the accused has On novo we 9-101(B)(l) 9-101(A), but
violated that former former proof charged its the Bar not met burden of as to has 1-102(A)(3). farther conclude of DR We violations suspension. appropriate in this case is a six-month sanction I. OF FACT FINDINGS practice to the in The accused was admitted law practiced mainly Oregon she in 1995, 1983 to 1983. From personal injury, relations and the areas domestic mostly practice. the accused entered a solo In late stipulation discipline, pursuant to which into a for period suspended practice months, for a of 18 from the of law January disciplinary beginning series of viola- for a charged proceeding. earlier The accused was in an tions hearing suspension this at the time under that matter. relating charges. present turn to the facts
We early 1991, for referred Char- shelter women In a battered representation in connection for lotte proceeding concerning juvenile Olson’s minor a court under written the accused a retainer $200 son. Olson *5 plus agreement pay per expenses. hour, Olson lost to $50 fee appointed represent job. to then the accused her The court juvenile proceeding, court remained Olson but Olson performed responsible paying for the accused for services appointment. Olson letter before the The accused notified that she had incurred in fees for that matter. Olson $258 per juvenile agreed payments on the to make of month $50 court matter. custody During pendency
Olson had of her son. juvenile proceeding, Stephen father, of the the child’s approved Kilpper, took child He did for an visit. Instead, return the child Olson. he left the state and to filed custody change for a in Texas. represent
Olson retained the accused to her in the ensuing custody dispute. signed agree- Olson no written fee orally agreed pay per ment, but she to the accused hour. $80 permission, lawyer With Olson’s to the accused hired a in Texas custody proceeding Kilpper seek dismissal of there. left Again permission, Texas and moved to Florida. with Olson’s investigator Kilpper, person- the accused hired an to locate ally requiring Florida, traveled to an obtained order Kilpper Oregon. eventually to return the child to Olson regained custody her son.
By May 1992, the accused had billed Olson for custody July $5,216.40 on 1,1992, case. On Texas counsel was owed $540.62. represented
The accused also Olson connection personal injury against boyfriend, a claim for assault a Christopher represented Clair. On matter, pursuant contingent agreement calling a to fee for the any accused to he one-third of amount collected if the case settled after action, the institution of an but before trial. The accused filed an action on Olson’s behalf and obtained a judgment against default Clair for $33,000. about sought judgment.
The accused collect the to Clair As part continuing garnish- effort, of that she obtained a writ against wages. ment Clair’s
By 31, letter dated March accused, on agreed pay per behalf of Olson, the Texas $100 beginning May if 1992 and at a faster rate month judgment. money the Clair Olson also were collected on apply agreed portion of the received from the outstanding judgment against her bill with the Clair accused. garnishment,
As a of the writ of result employer. Clair’s Each check was received five checks from payable one, Olson, and the accused endorsed each made following chart for Olson.” The shows “Deni Starr Charlotte deposit check, amount, date, each the date of deposited: the check where *6 Deposit Deposit of Check Amount Date Place Date of 20,1992 14,1992 May Trust account May 1. $169.95 28,1992 2,1992 June Trust account May 2. $158.12 15,1992 9,1992 Trust account June June $158.11 3. 7,1992 1,1992 July July General business 4. $172.01 of accused
account 16,1992 8,1992 July July 5. General business $158.12 of
account accused receipt promptly ofthe of The accused notified Olson permission check and obtained Olson’s oral the first deposit check it the trust account. How- endorse the and express provide ever, the accused failed to Olson with notice receipt four checks. about the the last orally to disburse Olson authorized accused $50 lawyer, Olson, to the to the Texas and accused $50 $50 garnishment pro- garnishment check. From the from the first by May paid 19, check dated ceeds, the accused Olson a $50 by 15,1992. June Also from the 1992, and a check dated $50 garnishment proceeds, paid Texas the accused (May 20,1992; 2,1992; June and June on three occasions $50 1992). By account, from trust 15, transfer garnishment pro- from the her business account $50 May 1992, and on 20, 2, on June 1992, $50 on ceeds $100 15,1992. June 28,
The accused a letter dated September wrote she had not employer, stating to Clair’s received since and any garnishment July inquiring checks Clair or a company employed still had forward- whether him. declined to employer provide any address for The ing that, time, on the information to accused basis Olson’s longer lawyer. no respect
The accused Olson with to a represented matter, against and final a tort claim agency fourth state (CSD), then as Services Division arising known Children’s in the juvenile proceeding. signed out its actions contingent written fee to which the agreement, pursuant if any accused would receive one-fourth of the case recovery before of an filing 22,1992, were resolved action. On June Olson and the accused had a In telephone conversation. conversation, Olson authorized the accused to settle CSD claim, tort filing action, $8,500. before the an for The $2,125 was entitled to a fee of contingent from that settlement.
In conversation, the June 22 telephone according to Olson, Olson and the accused “discussed something to the effect that would be used to my [Olson’s] bill matter, for the law and family any also expenses fees incurred by other attorneys investigators. And she was to receive her contingency share.” Olson to pay wanted “at least” half bill her for the family law matter. Olson and the *7 accused in “general discussed terms” that the from proceeds the CSD case were “to used the I be to bills. And pay [Olson] 23,1992, understood that.” On June the accused wrote a let- ter to Olson as follows: recall, you during
“As will our yesterday, conversation you you $8,500, happy stated that were the offer with did get CSD, not expect to more from take amount would that but dispute your wanted to share of it. Based on state- those [sic], ment I contacted Management Risk and indicated the case was settled. The check should arrive this or the week first of next week. willing
“I’m following dividing to do the the in terms of you check. indicated willing You that were to let me take my contingency out plus half of the owed. share divorce fees understanding my
I will do that with the that the balance of 1) by any money get I paid will be out of Chris Clair fees 2) full, by paid any get I’m in out of Texas until we full, my contingency share until I’m and above 3) starting payable you August me $100.00 would 5th, installments, by and the $50.00 20th. $50 two check, $4,725, get [the that out of this I’d “That means $500, lawyer] get investigator] get [an would Texas would $3,015.” $260, you get and would received,the on or about June Olson accused’s letter message I 24, agreed and left a “to the effect that 1992. She called it.” most this but not all of with content of letter The did return that call and did not discuss personally check with disbursement the CSD settlement again. Olson $8,500 settlement
On June CSD sent the pay- The check was made check and a release to able accused. att[orne]y.” Starr[,] her “Charlotte L. Olson & Deni to (to arrived, the When the check accused’s assistant testimony) telephone quote had a the assistant’s “conversa- regarding [Olson] check, received tion Charlotte with regarding with from her what she wanted done instructions assistant] conveyed [the to that check, and then back [the accused].” not the the told the assistant that “she was Olson get going to check” and that to come into office deposit go ahead and the check.” When accused “was relayed message accused, assistant asked her to “just
repeat message that she to make sure conveyed understood, to the the The was clear.” assistant permission gave make sure that accused, any- deposited need for Olson to do check without the thing the check. the CSD settlement check
The accused endorsed deposited it into her trust Olson and herself and for both for date, the accused dis- 29,1992. On the same account on June proceeds her busi- CSD $4,725 from the settlement bursed ness account. *8 24 and June time between June
Some say- message of the accused and left called the office Olson “[Yjou’re ing, met 30, 1992, Olson with fired.” On June respect lawyer all retained him with to matters another and by July previously On Olson’s 15,1992, handled the accused. informing her letter new sent accused a legal him in matters. had retained connection with all copies sought files, records, settlement The letter of all time “In checks, returns. The letter also stated: and any you negotiate addition, not authorized to checks or are [Olson’s] received in case.” other instruments July 17, On 1992, the accused wrote a letter to Among things, new Olson’s counsel. other letter stated: get [Olson’s]message your “I did I that was ‘fired’and letter request for release ofthe file.”That letter further stated: recovery
“Sums due have been paid out from the CSD case and Clair collection. Charlotte [Olson] and I did talk paying about her a lump sum even with these amounts outstanding, the offer but was with the understanding that money needed desperately, agree and pay would to off the balance with monthly payments. Her decision to hire you financially indicates she is not as she destitute has claimed, and does not intend work pay to with me me off added.) monthly.” (Emphasis July prepared Also on 1992, the accused two checks on payable account, her trust to herself and her business respec- account “Olson,” $1,000 and labeled $1,500, for and tively. The remainder of the $8,500 CSD settlement that was not disbursed at various times to to the or accu- (the paid parties sed’s business account had been to third investigators lawyer) expenses July Texas for 17.
The amount that did herself exceed the amount which she was then entitled for fees expenses. According testimony, to Olson’sown Olson had objection principle” no “in to the use of the settlement CSD the balance ofthe accused’s fees.
II. PROCEDURAL ISSUES argues there As an initial matter, the accused procedural have present proceedings. We were defects in they arguments are not and conclude that of them considered those not benefit well taken. A detailed discussion would *9 bench or bar.
III. OF DISCIPLINARY RULES APPLICATION Prompt A. Notification. 9-101(B)(l) notify requires lawyer DR a to
Former promptly he receives a client’s funds: client when or she the “A lawyer shall:
“(1) the notify receipt client of the of Promptly a funds, properties.”1 client’s securities or other failing by Bar that the accused violated that rule The asserts notify promptly accused either to Olson when the received garnishment check or the last four the CSD settlement checks. respect her check, the accused and
With to the CSD secretary secretary Olson testified that called former immediately informed her that the check had arrived. testimony the Bar find that and conclude that We has credible 9-101(B)(l) a DR demonstrated violation former respect to the CSD check. garnishment checks The also five accused received employer of the that toward satisfaction from Clair’s went judgment. and Olson Both the accused testified Clair promptly that she had received informed Olson garnishment However, check. the accused failed first notify expressly four had received the other requirement That failure violated the returns. 9-101(B)(l) notify lawyer “[p]romptly a DR that a former receipt funds.” if a client client of the client’s Even lawyer expects behalf, receive funds on the client’s lawyer duty notify promptly has the client an affirmative lawyer expressly funds. in fact receives the when ways portions not rel Other in 1992 and 1994 in of DR 9-101 were amended 9-10HBX1) opinion. as DR evant to this 9-10HCX1), DR renumbered in 1993 Former change. in this provision references but substance ofthe did not All 9-10KBX1) opinion to are version of the rule. DR to the 1992 former B. Deposits to Trust Account. Bar next
The alleges the accused violated former 9-101(A) failing deposit client funds in her trust 9-101(A) account. Former provides: “All firm, funds of clients lawyer to a or law includ- ing expenses advances for costs and and escrow and other by lawyer funds held or firm law for another in the course of work as lawyers, shall be deposited and maintained one or more identifiable trust accounts the state in which the law office is situated and no belonging funds to the law- yer or law firm shall deposited except be therein as follows:
“(1) reasonably Funds sufficient to pay account charges may deposited be therein.
“(2) belonging Funds in part to a client and in part presently or potentially to lawyer or firm law must be deposited portion therein but the belonging to the or *10 may law firm be withdrawn when due right unless the or law firm to receive it is disputed by the client in which disputed event the portion shall not be withdrawn dispute until the finally is resolved.”2 The accused knowingly3 deposited last gar- two nishment checks that she received into her general business account, rather than into her trust account. Once deposited, she never transferred any portion of those funds into her trust account. The garnishment checks were in payment of the Clair judgment, which was a in judgment favor, Olson’s 2 earlier, portions As noted other of DR 9-101 were amended in 1992 and 1994 ways 9-101(A) opinion. not relevant to this Former DR was amended in 1993 in ways opinion. not relevant opinion to this All references in this DR former 9-101(A)are to the 1992 version of the rule. 3 9-101(A) open question This court has left (formerly whether DR num 9-102(A)) liability Holman, bered.DR is a strict rule. In re See 297 Or 682 (1984) (so (1983) stating); Mannis, 594, 596-97, 668 P2d 243 In re 295 Or P2d 1224 (this expressly court liability pro declined to address whether the rule ais strict vision). Phelps, 512-13, The Bar relies on Mannis and In re 306 Or 760 P2d (1988), 9-101(A) support liability its assertion that DR is a strict offense.As noted, Phelps incorrectly Mannis does not so hold. states that Mannis holds that “failing properly deposit liability’ or maintain funds in a trust fund is a ‘strict turn, 476, 479-80 8, 886 Whipple, (1994), offense.”In In re 320 Or n P2d 7 cites that Phelps original sentence from clusion. We and indicates that Mannis is the source for that con point history emphasize out this that this court never has held that 9-101(A) liability here, DR question is a strict offense. We also need not decide the knowingly. we because find that the accused acted only being they payable so, That were made to Olson. they garnishment [a] arrived, checks were “funds of when 9-101(A). meaning ]” DR As funds within the client! offormer garnishment “depos- client, of a checks should have been * * * accounts.” The
ited one or more identifiable trust deposit proceeds from the last accused’s failure to two garnishment checks into her trust account constitutes a vio- 9-101(A). DR lation offormer Trust Account.
C. Disbursements from the accused also violated Bar asserts that The former 9-101(A) disbursing proceeds the last four from garnishment check and from CSD settlement checks knowledge whether or consent. To decide without her client’s proceeds the accused disbursed 9-101(A), violation offormer determine whether Olson and the accused proceeds we must agreed on how the would be disbursed. and the accused did not dis-
Olson testified
any garnishment
happen
checks other
what would
cuss
By contrast, the accused testified that the
the first one.
than
orally agreed
parties
recovered from the Clair
that funds
go
judgment
fees, until her bill
the accused’s
would
toward
fully paid.
surrounding circumstances, we credit
on the
Based
testimony,
we conclude that it is more
the accused’s
because
Although
plausible.4
that she and the accused
Olson stated
checks other
did not discuss disbursement
that she understood that
one,
than the first
she also testified
go
proceeds
to the
of the
of each check would
one-third of the
*11
part
contingency
part
that
her
fee and
accused as
legal
go
fees for the
the accused’s
remainder
toward
would
gar-
continuing
custody
There was but one writ
matter.
garnishment checks resulted from it.
nishment,
all the
and
4
gives
panel
accused was not credible. This court
The trial
found that
the
discipli
credibility finding
though
panel’s
the court reviews
weight
even
to a trial
(1992).
Trukositz,
None
nary
Or
339 in this also is a reasonable agreement regard expla- Olson’s the accused continued to serv- why provide legal nation for the fact that ices to her Olson owed the accused more despite $5,200 than did not have the assets or income at the time the pay bill. conclude that Olson agreed
We
would
the
from the
checks to
proceeds
garnishment
disburse
of the fees and
did
payment
expenses
herself
owed.5 Olson
not inform the accused that she no
authorized this
longer
pro-
July
cedure until Olson’s new
wrote to the accused on
15. The record does not show when the accused received that
letter, but she answered it on
17. The accused
July
deposited
the fifth
July
(and,
and final
check on
16
as
garnishment
above,
noted
that check
into her
deposited
improperly
account).
business
There is not clear and convincing evidence
the accused had
lawyer’s
received
new
letter when
she made
deposit6
or that
the amount
disbursed to
accused from the garnishment proceeds exceeded what Olson
had
to.
agreed
the Bar has failed to
Accordingly,
prove that
9-101(A)
the accused violated
by disbursing pro-
former
ceeds from
garnishment
checks.7
As to disbursement of the
check,
CSD settlement
9-101(A)
Bar alleges that
the accused violated
by
former
5
giving
garnishment proceeds
$50
The accused’s
from the
on two occa
because, although
sions does not alter our conclusion
the accu'sedwas entitled to
pay
amount,
accept
herself the entire
she could
less.
9.330,
provides:
See also
which
ORS
attorney
authority
attorney’s
any
pro-
“An
has
to bind the
client in
of the
ceedings
action,
by
proceeding,
attorney
agreement,
in an
suit or
and client
appropriate
filed with the clerk or entered in the
record ofthe court. The attor-
ney
action,
authority
money property
also has
to receive
or
claimed
the client in an
proceeding, during
pendency thereof,
years
suit or
or within three
decree,
judgment
upon
payment
delivery
after
charge
or
or
thereof to dis-
acknowledge
judgment
the claim or
satisfaction of the
or decree. This
prevent party
employing
attorney
section
a
does
from
a new
to issue exe-
upon
decree,
judgment
proceedings prescribed by
cution
law for its
or
or to take other
enforcement,
so,
party
authority
and when the
does
ofthe former
attorney ceases.”
above,
payment
As noted
because the
checks were in
ofthe Clair
judgment,
alone,
Olson,
payable only
which was in Olson’sfavor
and were made
they
agreed
constituted client funds. The fact that Olson
over the amount of
garnishment checks,
those funds to the accused does not mean that the
when the
them,
obligations
accused received
were not client
which
funds to
notifica
deposit
applied.
tion and initial
in the trust account
*12
disbursing
proceeds
knowledge
without Olson’s
or con-
lawyer may
sent. A
not withdraw funds from a trust account
knowing
dispute
that there is a
over those funds. See In re
(1993)
Spies,
(lawyer
316 Or
The accused raises the hen ORS Although may 87.430, as a defense. have had a respecting disputed hen some or all of the funds, the accused required comply disciplinary still was with the rules that collecting maintaining relate to fees and funds a trust account. The existence of a hen complying does excuse a from requirements. with ethical *13 Dishonesty. D. allegation final
The Bar’s is that the accused vio- 1-102(A)(3), provides: lated DR which professional “It is misconduct for a to: “(3) Engage involving fraud, conduct dishonesty, misrepresentation.” deceit or
The Bar asserts that the accused violated that rule endors- ing garnishment authority four checks without Olson’s by depositing disbursing proceeds gar- of the four nishment checks and the CSD settlement check without the authority. client’s
1. Endorsement Checks. To determine whether the accused violated DR 1- 102(A)(3)by endorsing garnishment the last four checks, we authority must determine whether the accused had the gave endorse them. Olson claims that she the accused authority only sign parties the first check and that the did By not discuss what would be done with later checks. con gave express authority trast, the accused testified that Olson sign garnishment all checks. surrounding Based on the circumstances, plausible. Supporting accused’s account is more that conclu- implicit acceptance practice. sion is Olson’s after the noted, of the As garnishment check, accused received the first she parties agreed. it, sent Olson accused from as the had After the $50 deposited gar- received, endorsed, and the second accepted check, nishment that she sent Olson another Olson $50. telling without the accused that this was parties agreed what the had to. parties suggesting that
Another circumstance subsequent arranged checks to endorse for the accused had coming regu- would be knew that checks that Olson expected larly. to receive testified that She [checks] a month.” “at least two support
Providing is the for our conclusion further endorsing more con- the checks was that the accused’s fact that she had authorized the Olson testified venient for Olson. working first check because Olson was accused to endorse the jobs time run downtown” to and “didn’t have at two secretary testi- accused’s former also it herself. The endorse to endorse the had authorized the accused fied that Olson there were two incidents check. Because CSD settlement expressly authorized the found that which we have conven- it was more checks, and because endorse accused to practice, times to continue at all relevant ient for Olson expressly plausible authorized she also it is more garnishment subsequent checks. accused to endorse prove by conclusion, the Bar failed to find, in We convincing did not authorize evidence that Olson clear and the accused we Therefore, checks. to endorse the 1-102(A)(3)by guilty violating DR *14 find the accused not of endorsing them. Funds.
2. Disbursement of DR the accused violated whether Next, we consider 1-102(A)(3) proceeds the last from she disbursed when check. CSD settlement garnishment and the returns four proceeds agreed had Because we conclude accused, we to be used would from the 1-102(A)(3) DR did not violate that the accused also conclude by disbursing portion to herself. a of those funds alleges funds, the Bar the CSD settlement
As to
ofthe funds consti
the accused’s unauthorized disbursement
dishonesty.
misrepresentation,
This
fraud, deceit,
or
tuted
misrepre
dishonesty, and
fraud, deceit,
noted that
court has
concepts.
overlap
In re
See
are not identical
but
sentation
(so
(1985)
stating).
P2d 540
526, 533, 694
Or
Hiller, 298
rep
things,
among
require,
a false
other
and deceit
“Fraud
act
that the other
intent
another,
with
resentation
343
damage.”
upon
representation
her
In re
the false
to his or
(1987). “Misrepresen
Hockett,
150, 158,
“Dishonesty”
‘[dis-
is conduct that
indicates a
position
integrity.’
untrustworthiness;
lie,
defraud;
cheat or
lack of
”
(citing
Hockett, 303 Or at
Black’s Law
(5th
1979)).
Dictionary 421
noted in In re
ed
As this court
(1988),
Phelps,
306 Or
Our clear in cases have not been when removal of funds from a trust account violation of 1-102(A)(3) 9-101(A)(2) by being also violates former 9-101(A)(2) specific dishonest. Former DR is more than is DR 1-102(A)(3) lawyer’s obligation respect to retain dis to a puted specific implic fees in rule a trust account. That more itly payment that the are for assumes funds withdrawn lawyer’s expenses disputes fees and and that the client dishonesty by right payment. Accordingly, to receive the mis merely by appropriation proving is not established that a lawyer previously lawyer’s payment has withdrawn funds for the expenses,
earned fees and that the client has or agreed purpose. That not is, to the withdrawal of funds for that “self-help” pay per dishonest, se one’s earned fees is though disciplinary even it violates another rule. previously foregoing
This court has not stated past cases, however, rule in such stark terms. Our have *15 implied it. example, Whipple, 476, 886P2d 7
For
in In re
320 Or
(1994),
among
things,
lawyer for,
other
this
disbarred a
court
respect
converting
to two
clients’ funds to his own use. With
argued
clients,
that he had not
ofthe
the accused
violated
1-102(A)(3),
kept
pre-
the amounts that he
were for
because
Citing Phelps,
viously
480-81,
earned fees.
ents’ funds
The accused
In re
294 Or
lawyer argued,
part,
in
that he had withdrawn
already
money
the clients’
and
it to himself because he
attorney
In
had earned the
as
fees.
reached, and the accused the settlement paid $2,500 of trust account. Then the accused funds the clients’ share of that settlement to his lawyer another who briefly at 586-87. In conclud- on the case. 322 Or had worked ing dishonest, court noted that this
345 rejected $2,500 clients had as expressly being proper $2,500 fee. Id. at in Implicitly, 592-95. had the fact been owed past legal services, for the act of it to the paying lawyer other would not if dishonest, have been even it violated another (such rule as the rule prohibiting charging of an excessive fee).
In
cases,
several other
this court concluded that a
lawyer
1-102(A)(3),
had violated DR
as well as DR 9-
101(A)(2), when the lawyer either
took funds that were
beyond previously earned fees
used a
or
dishonest means to
remove funds from a
In
Holman,
trust account.
In re
297 Or
36,
(1984),
In summary, our past suggest cases that a removal 9-101(A)(2) of funds from a trust account in violation of DR 1-102(A)(3) is dishonesty also under DR if either of two addi- tional factors present: is the lawyer takes funds that are not already owed to the lawyer, or the uses a dishonest means to Here, remove the funds. the accused did not act dis- honestly the first of those ways. is, two That at the time herself, paid owed fact for legal services rendered.
The second issue is whether accused acted dis- honestly in the way which she removed funds from the trust account. The Bar argues accused’s methods dishonest, were because she lacked authority endorse some of the checks that were into the placed trust account. In above, our discussion however, we have explained why we disagree with the Bar’s factual premise. respect paid check, to the CSD her-
With agree- self with funds from the trust account without Olson’s being purpose did ment. She so for the selfish without (such awaiting appropriate processes as fee arbitration or proceedings). up dishonesty. lien But those facts do not add prove that the We conclude violated DR Bar has failed to that the accused 9-102(A)(3) charged. as summary, In we conclude that the accused violated 9-101(B)(l) by failing notify promptly former garnishment checks, when she received the last four and that 9-101(A)by depositing proceeds she violated former general in her from two checks business by withdrawing rather than her trust account account *17 client funds from her trust account while she and her client disputed belonged.
to whom the funds IV. SANCTION appropriate sanction, To determine the we consider Imposing the American Bar Association’s Standards for ed) (1991 (ABA Standards) Lawyer Oregon Sanctions and (1994). Morin, case law. In re 878 P2d 319 Or require analysis The ABA Standards ofthe accused’sconduct (1) (2) light duty violated, in of four factors: (3) potential injury, state, accused’s mental the actual or and (4) aggravating mitigating or circumstances. the existence ABA Standard 3.0. duty violated the owed to her client
The accused failing property. preserve the client’s ABA Standard 4.1. notify when she failed to Olson The violation occurred promptly garnishment returns, she received four when when general deposited garnishment busi- she two checks into her account, she from her trust account ness and when withdrew dispute. in client funds that were “knowledge” as “the con- The ABA Standards define circumstances of awareness ofthe nature or attendant scious objective purpose or the conduct but without the conscious particular accomplish result.” ABA Standards at 17. We knowledge depositing in two accused acted with find that the garnishment general in account and checks into her business client withdrawing disputed funds from her trust account. We find that the accused acted negligently failing notify promptly when she received four checks. garnishment ABA at 17 (defining See Standards “negligence”).
The accused’s failure to two deposit checks her trust account and her withdrawal of disputed client funds from her trust account caused potential injury to because, her client in the event that the funds were deter- mined not to to the belong accused, they would not readily have to the been available client.
We find several aggravating First, factors. accused has substantial experience law, the practice of having almost nine practiced years at the time of the rule vio- 9.22(i). lations at issue. ABA Second, Standard as the accused herself recognized, the client vulnerable, in part because she was threatened with losing custody of her child. 9.22(h). ABA Third, Standard the accused acted out of a self- 9.22(b). ish ABA motive. Standard Although earned the fees that are the subject of this proceeding, her manner of taking them was improper. Fourth, there are mul- 9.22(d). offenses. ABA tiple Standard A final factor aggravating is accused’s prior dis- 9.22(a). ciplinary offenses. ABA Standard In 1989, accused received a letter of admonition for DR violating 1-102(A)(4). In January an began 18-month sus- pension after entering into a stipulation for for vio- discipline 1-102(A)(3) 7-106(A) DR lating (4), 5-101(A), *18 9.527(3) (4). (C)(6), 9.460(2), ORS and ORS and We conclude that we should a give moderate amount of weight to the prior discipline as an aggravating factor in this case. of the past Some misconduct was similar to conduct covered present The proceeding. past misconduct was very serious and extensive. Those factors suggest we should give to the great weight prior On the other discipline. hand, giving events rise to that stipulation occurred at roughly the same time as the events rise to the giving present so the proceeding, accused’s acts herein do not reflect a dis- of an regard earlier adverse ethical determination. There- fore, the weight stipulation as an is aggravating factor
348
Jones,
195, 199-201,
diminished.
In re
326 Or
See
somewhat
Two example, by proceedings, fully cooperated for with the Bar’s by testifying stipulating and vol- to some of the facts issue 9.32(e). untarily hearing. ABA The accused Standard at significant participated rehabilitation, such interim also Oregon Attorney by participating Assistance Pro- in the as working relationship by developing gram with other a and 9.32(j). lawyers help cases. ABA Standard her evaluate provide: ABA The Standards lawyer knows when a “Suspension generally appropriate is with client dealing improperly that he is or should know injury to a client.” injury potential causes or property and 4.12. ABA Standard appropriate agree suspension in this case. is
We
Many
has found a
in which this court
of the cases
9-101(A)
other,
also involved violations
of DR
violation
1-102(A).
including
The sanction
rules,
DR
serious
more
imposed
e.g.,
generally
See,
In
was disbarment.
in those cases
(1995) (lawyer dis-
P2d 1140
Dickerson, 322 Or
905
re
9-101(A),
1-102(A)(3),
violating
DR
and other
DR
for
barred
(same).
(same); Spies,
rules); Whipple,
GILLETTE, J., concurring part. join majority say
I
in much of what the
has to
con-
cerning
disciplinary
what the accused did and what
rules
were violated as a result
However,
of the accused’s actions.
agree
majority
respect
I
because cannot
with
to the
question
“self-help,” by
whether the accused’s resort to
dis-
bursing
portion
to herself a
of the CSD settlement check in
“dishonesty,”
account,
the accused’s trust
I
involved
cannot
join
part
majority opinion
of the
that finds the accused
1-102(A)(3).
guilty
dishonesty
not
under DR
“
majority today
specifically
The
holds
‘self-
help’
per
dishonest,
one’s earned fees is not
se
even
though
disciplinary
it violates another
rule.”
lawyers
less
cases had been
in those earlier
guilty.
have been found not
would
majority’s
support
only
appears The
case that
*20
(1994).
directly
Whipple,
P2d 7
320 Or
886
is In re
view
self-help
in order to
had exercised
case, a
In that
belonging
disputed
different clients. The
to two
funds
obtain
earned all that he took. This
that he had
accused maintained
respect
disagreed
clients, and
of the two
to one
with
court
1-102(A)(3).
dishonesty
guilty
under
the accused
of
found
respect
however,
client,
this
to the other
at 481. With
320 Or
court found
dishonesty
guilty
under the
of
the accused
majority
case, “the Bar had
because, as the
describes
rule
failed to
convincing
prove by
that the
evidence
clear and
cussed dishonesty only way that be to show would to demonstrate intentionally appropriated “dishonestly and had the accused client’s] [the he had earned it.” use before to his own weight give however, statement, to that little Or at 485.1 320 argued in determine, Bar never I because, far as can so dishonesty guilty of the accused could be that the alternative my theory any In unearned. than that the fees were on other open one. should be an mind, that issue still major- present Returning case, the to the facts of respect vividly up ity very behavior with the accused’s sums part as follows: settlement check the CSD respect check, herself to the CSD “With agree- without Olson’s the trust account funds from with being paid purpose with- the selfish did so for ment. She (such processes awaiting appropriate as feearbitra- out proceedings).” lien tion or majority today concludes that nonetheless The at 346. 326 Or respect, one could With not “dishonest.” “selfish” act is such a profession anyone proposition our outside advance say, “That is expectation only the hearer would Certainly, lawyer.” only it a fool that would a distinction particularly this court has when court, fool this should not
351 “dishonesty” among things, being, a “lack defined as other (1987). integrity.” Hockett, P2d In re 303 Or “integrity” lawyer’s sacrificing in a her client’s Where is interest her favor of own? good I hold the accused had no faith claim would belonged merely her, that the trust account because funds Taking performed she had services for Olson. the funds was It I the accused’s in a dishonest act. followsthat view conduct majority.1 light far more serious than does the join sepa- Durham, JJ., Hoomissen and in this Van opinion. rate *21 traditionally appears It from the briefs in and other cases that the Bar this by Whipple arguing from
has felt constrained from that the removal of earned fees “dishonesty.” present To a trust account in circumstances like the case constituted (for accused) generous approach, I take the would be content even if the view only. adopted espouse prospectively that I were to be This case was our chance to Sadly, misunderstanding protect correct a and to clients. we’ve missed it.