See In re Rowell, 305 Or. 584, 586-88, 754 P.2d 905 (1988) (applicant's criminal activity demonstrated lack of requisite moral character for admission to Bar at time of conduct). 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). SeeIn reKimmell, 332 Or. 480, 487, 31 P.3d 414 (2001) (noting that this court's finding that same conduct violated both Code of Professional Responsibility and provision of ORS chapter 9 generally has not served to enhance sanction). 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.
For reasons that we have expressed in other cases, we decline to impose discipline for conduct that is otherwise covered under the disciplinary rules. See In re Gustafson, 333 Or 468, 470 n. 1, 41 P3d 1063 (2002) (citing In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (declining to consider charge under ORS 9.527(1), because conclusion that accused lawyer had violated statute would not serve to enhance sanction)). A trial panel of the Disciplinary Board concluded that the accused did not violate DR 1-102(A)(2), but that she did violate DR 1-102(A)(3) due to her poor money management. It further determined that the appropriate sanction was an 18-month suspension, with all but three months stayed if the accused complied with certain terms.
ORS 9.536(2); BR 10.6; BR 5.2. For the reasons that follow, we conclude that the accused violated DR 1-102(A)(2), DR 1-102(A)(3), and DR 7-102(A)(5) and that the appropriate sanction is a 180-day suspension from the practice of law. We have not considered, in addition to the Oregon disciplinary rule violations, the accused's alleged violation of ORS 9.527(4). As this court reasoned in In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001), further consideration of statutory violations "generally [will] not serve to enhance the sanction." I. FACTS
Other comparable cases that support disbarment in this case are: In re Murdock, 328 Or. 18, 968 P.2d 1270 (1998) (disbarment appropriate when law firm associate knowingly embezzled more than $9,000 from law firm); In re Laury, 300 Or. 65, 706 P.2d 935 (1985) (disbarment appropriate when attorney converted $1,100 in client funds to his own personal use); and In re Pierson, 280 Or. 513, 571 P.2d 907 (1977) (disbarment appropriate when attorney converted $56,000 from client trust funds to his own personal use notwithstanding full restitution of the funds by the attorney). In his dissent below, the chair of the trial panel concluded that the accused's conduct should be viewed similarly to the misconduct sanctioned in In re Kimmell, 332 Or. 480, 31 P.3d 414 (2001). We disagree.
but the Bar has not offered any legal analysis of the Hawaiโi criminal code provisions that it cites, and it is not clear to us that the accused's misconduct squarely fits within the proscriptions of those laws. In In re Kimmell, 332 Or. 480, 485, 31 P.3d 414 (2001), this court, considering the predecessor rules to RPC 8.4(a)(2) and (3), held: โProof of conviction is not required to find a violation of DR 1โ102(A)(3) or ORS 9.527(1).
We do not consider that alleged violation because, as this court has stated before, "the Bar no longer should charge violations of ORS 9.527, at least in circumstances in which the acts allegedly constituting the statutory violation also would constitute the violation of a disciplinary rule." In re Albrecht, 333 Or 520, 542, 42 P3d 887 (2002) (declining to address alleged violation of ORS 9.527(4)); see also In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (declining to address alleged violation of ORS 9.527(1)). In this case, the trial panel found the accused guilty of violating ORS 9.527(2), but it did not use that determination to enhance the sanction because the same conduct also constituted a violation of other disciplinary rules.
ORS 9.220(2)(b). Theft is an act of misconduct involving moral turpitude. In re Kimmell, 332 Or. 480, 491, 31 P.3d 414 (2001); see also In re Sonderen, 303 Or. 129, 133, 734 P.2d 348 (1987) ("in order to involve moral turpitude, [the conduct] must require intent and must include as an element fraud, deceit, dishonesty, harm to a specific victim or illegal activity undertaken for personal gain"). Accordingly, applicant's misconduct related to and surrounding the In Focus theft demonstrates that, at that time, applicant did not possess good moral character.
Proof of a conviction is not required to establish a violation of the disciplinary rule. In re Kimmell, 332 Or. 480, 485, 31 P.3d 414 (2001). The Bar contends that the accused's failure to timely file 1992, 1993, and 1994 federal and state tax returns violated, respectively, two criminal statutes: 26 U.S.C. ยง 7203 and ORS 314.075(1).
; In re Tonzola, 162 N.J. 296, 744 A.2d 162, 167 (2000) ("When the offense . . . involves misappropriation or theft of client funds, disbarment is almost invariable.") (citations and quotations omitted); Disciplinary Counsel v. Griffith, 112 Ohio St.3d 134, 858 N.E.2d 397, 399 (2006) ("The presumptive disciplinary measure for such acts of misappropriation is disbarment."); In re Kimmell, 332 Or. 480, 31 P.3d 414 (2001) ("Theft from a client is the most egregious form of theft that can be committed by a lawyer and generally warrants disbarment."); M.Q.M. v. State, 840 N.E.2d 441, 446 (Ind.App. 2006) ("[O]utright theft of client funds generally warrants very severe sanction, up to and including disbarment."). 2. Other Offenses or Misconduct
But the lack of an underlying criminal prosecution is "not dispositive" of claims under RPC 8.4(a)(2). In re Walton, 352 Or. 548, 554, 287 P.3d 1098 (2012); see also In re Kimmell, 332 Or. 480, 485, 31 P.3d 414 (2001) ("[T]his court has held that proof that an accused lawyer was convicted for such an act is not required to find a violation of [the predecessor to RPC 8.4(a)(2)]."). 14. Heubner and Leatham matters