P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Goyak, 19 DB Rptr 179 (2005)
he was writing nonsufficient fund checks to others on a regular basis. While the Bar
did not charge the Accused for this additional misconduct, the trial panel views it as
an aggravating factor for purposes of determining a sanction. 3
The Accused’s violation of DR 9-101(A) and DR 9-101(C) was negligent. He
should have known that he was not permitted to deposit his own funds into his client
trust account or to use it for his personal business. The Accused claims that he did
not know this, but does not deny that he should have. He also admits that his
banking practices with respect to his trust account were negligent and that he did not
maintain the records required of him.
D. Extent of Actual or Potential Injury
The Standards define “injury” as harm to the client, the public, the legal
system, or the profession that results from the lawyer’s conduct. “Potential injury”
is harm to the client, the public, the legal system, or the profession that is reasonably
foreseeable at the time of the lawyer’s conduct and which, but for some intervening
factor or event, would probably have resulted from the lawyer’s misconduct.
Standards, at 7. An injury does not need to be actual, but only potential, to support
the imposition of sanctions. In re Williams, 314 Or 530, 840 P2d 1280 (1992).
The Accused caused actual injury to the Bar in failing to cooperate with its
investigation. In re Bourcier, 325 Or 429, 424, 939 P2d 604 (1997). The City of
Portland suffered actual injury from the Accused’s conduct in that its receipt of funds
legitimately owed by the Accused was delayed for up to two years, and it was
required to expend time and resources in attempts to collect those funds.
E. Preliminary Sanction
Standards § 7.2 suggests that suspension is generally appropriate when a
lawyer knowingly engages in conduct that is a violation of a duty owed to the
profession, and causes injury or potential injury to a client, the public, or the legal
system.
Standards § 5.12 suggests that suspension is generally appropriate when a
lawyer knowingly engages in criminal conduct which does not contain elements listed
3
According to Defendant’s Exhibit 14, during the period April 1, 1998, to April 30,
1998, he was charged twice for returned checks; during the period October 31, 1998, to
November 30, 1998, he was charged six times for returned checks; during the period
December 1, 1998, to December 31, 1998, he was charged eleven times for returned checks;
during the period January 1, 1999, to January 29, 1999, he was charged seven times for
returned checks; during the period May 29, 1999, to June 30, 1999, he was charged twice
for returned checks; during the period July 1, 1999, to July 30, 1999, he was charged once
for a returned check. All of the foregoing checks were drawn on the Accused’s business
account. During the period May 22, 1998, to June 19, 1998, he was charged four times for
returned checks on his personal account.
189