" In In re King, 165 Or. 103, 105 P.2d 870 (1940), while charges were pending in this court, the lawyer filed a voluntary resignation. The court held:
We have decided our fixed definition cases on the basis of the nature of the crime itself, often applying the common law distinction between a crime malum in se, a crime inherently evil and wrong in itself, and a crime malum prohibitum, a crime wrong only because it is prohibited by legislation. These cases, all concluding that moral turpitude was involved, include In re Carstens, 297 Or. 155, 683 P.2d 992 (1984) (theft); In re Mahr, 276 Or. 939, 556 P.2d 1359 (1976) (shoplifting); In re Thomas Graham Walker, 240 Or. 65, 399 P.2d 1015 (1965) (violation of federal income tax statute); State ex rel Ricco v. Biggs, supra, (keeping a bawdy house); In re King, 165 Or. 103, 105 P.2d 870 (1940) (false swearing); State v. Edmunson, supra, (selling intoxicating liquor contrary to prohibition law); Ex parte Mason, supra, (criminal libel). The meaning of these terms is itself obscure and these distinctions have fallen into disuse.
It is also a "crime involving moral turpitude," since it involves dishonesty. See Lewis v.State, 243 Ga. 443 ( 254 S.E.2d 830) (1979) and cits.; Huff v. Anderson, 212 Ga. 32, 34 (2) ( 90 S.E.2d 329) (1955) and cits.; Op. Atty. Gen., No. 76-69; In re King, 165 Or. 103 ( 105 P.2d 870) (1940). The appellant contends, however, that the trial judge reduced the crime, not just the punishment, to a misdemeanor, by stating, "Now, I have reduced this from a felony to a misdemeanor, because a felony conviction can do you irreparable harm the rest of your life."
Petitioners have not identified anything persuasive in ORS 144.335 itself or in this court's cases discussing costs and disbursements that supports their view that authority to impose costs on review of a Board order may derive only from a statute that speaks specifically to that kind of proceeding. Petitioners cite In re King, 165 Or. 103, 115, 105 P.2d 870 (1940), for the proposition that the right to recover costs must be found within the statute prescribing the procedure for judicial review. However, in that case, the court held that a general catchall cost statute did not apply to the particular proceeding at issue (review of findings and recommendations of the Board of Governors of the Oregon State Bar).
See also Matter of Discipline of Peck, 302 N.W.2d 356, 359 n. 3 (Minn. 1981), (court may impose conditions upon acceptance of resignation); The Florida Bar v. Summers, 197 So.2d 291, 292 (Fla. 1967), (court may impose appropriate conditions for resignation according to rule governing resignation). Cf. In re Lewis, 404 S.W.2d 469 (1966), (court declined to accept resignation and disbarred attorney); Louisiana State Bar Association v. Pitcher, 238 La. 649, 116 So.2d 281 (1959), (same); Louisiana State Bar Association v. Cohen, 242 La. 838, 138 So.2d 594 (1962), (same); Matter of Duffy, 102 N.M. 524, 697, P.2d 943, 945 (1985), (resignation not approved due to egregious violations of Code of Professional Responsibility and attorney disbarred); In re King, 165 Or. 103, 105 P.2d 870, 874 (1940), (resignation without consent of the court is ineffectual to preclude disbarment when proceedings therefor were pending at time of resignation). Rule 8.
"* * * [G]enerally a crime involving `moral turpitude' is malum in se, but otherwise it is malum prohibitum. * * *" See also In re Means, 207 Or. 638, 640, 298 P.2d 983 (1956); In re King, 165 Or. 103, 113, 105 P.2d 870 (1940); State v. Edmunson, 103 Or. 243, 246, 204 P. 619 (1922); and Ex parte Mason, 29 Or. 18, 21, 43 P. 651 (1896). There has been considerable difficulty and uncertainty in determining whether various crimes are to be classified as crimes involving moral turpitude or as crimes not involving moral turpitude.
In Oregon it is held that the resignation of an attorney without consent of the court is not effectual to preclude his disbarment when proceedings therefor were pending at the time of his resignation. Ex parte Thompson, 32 Or. 499, 52 P. 570, 40 L.R.A. 194, 195; In re King, 165 Or. 103, 105 P.2d 870. In Kentucky, the right of an attorney to resign is recognized but the granting of such request is there a matter to be determined by the court.
The recommendation of the commissioner is sustained by sufficient evidence, the competency of which has not been challenged. See Beamer, Attorney General v. Waddell 2. (1943), 221 Ind. 279, 47 N.E.2d 608; In re King (1940), 165 Or. 103, 105 P.2d 870; In re Haddad (1943), 106 Vt. 322, 173 A. 103; In re W. Marvin Clifton (1934), 115 Fla. 168, 155 So. 324; Ex parte Thompson (1898), 32 Or. 499, 52 P. 570, 40 L.R.A. 194. The defendant is disbarred and the clerk of this court is hereby ordered to strike the name of defendant from the roll of attorneys in this State.