Filed: August 30, 2001

In re Complaint as to the Conduct of

ADAM KIMMELL,

Accused.

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted May 3, 2001; reassigned June 20, 2001.

Adam Kimmell, in propria persona, Portland, argued the cause and submitted the brief.

Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and submitted the brief for the Oregon State Bar.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.*

PER CURIAM

The accused is suspended from the practice of law for a period of six months, commencing 60 days from the date of filing of this decision.

* Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case.

PER CURIAM

In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with violating two disciplinary rules of the Code of Professional Responsibility: Disciplinary Rule (DR) 1-102(A)(2) (prohibiting commission of "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law"); and DR 1-102(A)(3) (prohibiting "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"). The Bar also alleged that the accused violated ORS 9.527(1) (conduct justifying denial of Bar admission). A trial panel of the Disciplinary Board found that the accused violated only DR 1-102(A)(3) and suspended him from the practice of law for six months.

The Bar sought review of the trial panel's decision. ORS 9.536(1); Bar Rule of Procedure (BR) 10.3. This court reviews the record de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. We hold that the accused violated DR 1-102(A)(2) and DR 1-102(A)(3), and suspend him from the practice of law for six months.

I. FACTS

The accused first was admitted to the practice of law in New York in 1978. In 1985, he was admitted to practice in California. In New York and California, the accused's practice focused on business transactions. In 1991, the accused was admitted to the practice of law in Oregon. From 1991 to the present, he has had a solo practice primarily in the areas of personal injury and criminal law.

On September 28, 1997, the accused entered a department store, placed a jacket in a black shoulder bag that he was carrying, and left the store without paying for the jacket. After observing the accused's conduct via video surveillance, store personnel apprehended him outside the store. The accused objected to being detained and denied any wrongdoing. Even after the jacket was found in his bag with the department store tags still attached, the accused maintained that the jacket belonged to him. Police arrested the accused and charged him with theft in the second degree. ORS 164.045. (1)

Theft in the second degree is a Class A misdemeanor. ORS 164.045(2). However, because the accused had no prior criminal convictions, the Multnomah County District Attorney's office elected to prosecute the offense as a violation. Former ORS 161.565(2) (1997), repealed by Or Laws 1999, ch 1051,