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

Cite as In re Goyak, 19 DB Rptr 179 (2005)
rather than an individual does not minimize the offense. The Accused violated DR
1-102(A)(2).
Under In re Haws, 310 Or 741, 801 P2d 818 (1990), failure to respond to
inquiries from Disciplinary Counsel’s Office is a violation of DR 1-103(C). The
evidence Accused did not respond to inquiries from Disciplinary Counsel’s Office to
such an extent that the matter had to be referred to an LPRC for further investigation.
After the LPRC returned the matter to Disciplinary Counsel’s Office, the Accused
failed to produce the bank records the Bar requested for over a year, ultimately
requiring the issuance of a subpoena for the records to the Accused’s banks.
When the Accused signed and filed his Answer in April 2004, he admitted the
allegations of paragraph 10 of the Formal Complaint (also paragraph 10 of the
Amended Formal Complaint), which alleges that he failed to respond to Disciplinary
Counsel’s inquiries in the year 2000, and admitted that this conduct violated DR
1-103(C). He readopted that answer at the time of hearing in response to the
amended complaint.
Under Oregon evidence law, the Accused’s factual admissions in his Answer
are admissible as evidence against him. Yates v. Large, 284 Or 217, 223, 585 P2d
697 (1978). The Supreme Court has determined that the type of recalcitrance the
Accused has admittedly displayed during the course of Disciplinary Counsel’s
investigation violates DR 1-103(C). In re Schaffner, 325 Or 421, 939 P2d 39 (1997).
The Accused has admitted this violation, and the Trial Panel finds that he violated
the rule.
The Accused has admitted in both Case No. 03-119 and Case No. 03-120 that
between 1998 and June 2002, he deposited and maintained his personal funds in his
lawyer trust account. By its terms, this rule does not require proof of a culpable
mental state. 2 Therefore, even though the Accused claims he did not know he should
not deposit personal funds into his client trust account or use the account for personal
business, Supreme Court precedent and the language of DR 9-101(A) demonstrate
that he has, nonetheless, violated this rule. The Accused admits the violations, and
the Trial Panel finds that he violated DR 9-101(A) in both Case No. 03-119 and Case
No. 03-120.
2
While the court has not gone so far as to declare DR 9-101(A) to be a strict liability
rule, it has held lawyers responsible for trust account mismanagement by employees about
which the lawyer did not know. See In re Starr, 326 Or 328, 337, 952 P2d 1017 (1998),
and the cases cited in footnote 3 therein. Ignorance that his conduct violated a disciplinary
rule does not excuse the Accused’s conduct. In re Carey, 307 Or 315, 321, 767 P2d 438
(1989).
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