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

Cite as In re Goyak, 19 DB Rptr 179 (2005)
lawyer’s criminal conduct beyond a reasonable doubt, but by clear and convincing
evidence, the standard of proof in all lawyer discipline matters. In re Anson, 302 Or
446, 453–454, 730 P2d 1229 (1986); In re Lawrence, 332 Or 502, 507, 31 P3d 1078
(2001).
The Accused wrote four NSF checks to the City of Portland in 1998 and 1999,
and he did not cover those checks until April 10, 2000. Were the Accused being
criminally prosecuted, under ORS 165.065(2)(b) this would constitute prima facie
evidence that he knew the checks would not be honored when he wrote them. For
a violation of ORS 165.065, the person writing a bad check must ‘know’ that it will
not be honored and under (2)(b) the failure of the drawer to make the check good
within 10 days establishes prima facie evidence of a violation. Here, however, it is
not necessary to resort to conditions in the statute to determine that there is sufficient
evidence to establish a violation has occurred. Although the Accused denies that he
knew his checks to the City would not be honored, as the following will show, the
Panel does not find his denial credible and concludes that the record shows by clear
and convincing evidence that his violation was “knowing.”
With respect to the April 15, 1998, check for $325, the evidence shows that
as of April 13, 1998, there was not enough money in the Accused’s personal
checking account to cover a check for $325. The balance on that day was $204.10,
and by April 15, 1998, the balance in the account was–$17.20. With the exception
of April 24, 1998 (when the account balance was $10.80), the account remained
overdrawn until May 11, 1998. Clearly, there was not enough money in the account
to cover the check at a time when the Accused could reasonably expect that the city
would present it to the bank, and the evidence shows that the Accused knew this.
The Accused received the overdraft notices on his personal account shortly
after they were mailed by the bank. This account was checked repeatedly during
April and May 1998. The bank statement shows that between April 10, 1998, and
May 12, 1998, 10 telephone calls were made to the bank about the account. No
telephone deposits or withdrawals were made on these dates, and the Accused did not
have computer access to his account. The calls to the bank were balance inquiries
and the Accused must have known when he wrote it that his April 15, 1998, check
to the city would not be honored.
The two checks the Accused wrote on October 15, 1998, were written on his
“Goyak and Associates PC” checking account. The Accused was the only signatory
on this account. He admits that the October 15, 1998, checks, totaling $2,773, were
not honored by his bank and that he did not cover them until April 10, 2000. The
evidence shows that this account was overdrawn from October 1, 1998, through
October 29, 1998, and the Accused knew it. Five checks were written on the account
and returned during the month of October 1998. Three of these checks were returned
unpaid by the bank on October 7, October 14, and October 15—on or immediately
before the day the Accused wrote the checks to the city. The Accused was aware
before April 15, 1998, that checks on this account were being returned unpaid by his
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