In Re: Complaint as to the Conduct of W. SCOTT PHINNEY, Accused, OSB #823710.
Argued and submitted June 5, 2013
On review of the decision of a trial panel of the Disciplinary Board, OSB 10-68;
W. Scott Phinney, Tualatin, argued the cause and submitted the brief pro se.
Stacy J. Hankin, Assistant Disciplinary Counsel, Oregon State Bar, Tigard, argued the cause and filed the brief for the Oregon State Bar.
The accused is disbarred, effective 60 days from the date of this decision.
In this lawyer disciplinary proceeding, the Bar alleged that the accused, who admitted taking substantial funds from the Yale Alumni Association of Oregon, violated Rule of Professional Conduct (RPC) 8.4(a)(2), which prohibits criminal conduct that reflects adversely on a lawyer's honesty and trustworthiness, and RPC 8.4(a)(3), which prohibits conduct involving dishonesty and misrepresentation that reflects adversely on a lawyer's fitness to practice law. The trial panel found that the accused had violated both rules and imposed the sanction of disbarment. The accused appealed, arguing for a lesser sanction than disbarment. He contends that he did not commit theft because he intended to return the money. The Bar supports disbarment based on the accused's serious misconduct and breach of fiduciary duty. On de novo review, we find that the accused violated both rules of professional conduct, and we conclude that disbarment is the appropriate sanction.
The Bar is required to prove the alleged misconduct in this case by clear and convincing evidence, which means "evidence establishing that the truth of the facts asserted is highly probable." In re Cohen, 316 Or 657, 659, 853 P.2d 286 (1993). This court's statutory review of the trial panel's decision is de novo. ORS 9.536(2).
We find the following facts, which are essentially undisputed, by clear and convincing evidence. The accused was admitted to practice law in Oregon in 1982. In 1996, the accused was elected treasurer of the Yale Alumni Association of Oregon (association), a nonprofit organization open to membership by graduates of Yale University. Serving in that capacity on a volunteer basis, the accused was responsible for the association's bank accounts, including bank deposits and the payment of bills. The accused routinely reported on the association's finances to the president of the association and to the membership.
Beginning in early 2007, the accused experienced serious financial difficulties because of a work lay-off, family expenses, and extensive debt accumulated on credit cards that he used to pay his living expenses. The accused began withdrawing funds from the association's bank accounts by writing checks payable to himself or cash; he then deposited the proceeds into his personal account to pay his own and his family's expenses. Between September 2008 and January 2010, the accused wrote 21 checks for his own use in the total amount of $32, 600. The accused knew that he had no right to withdraw the funds and use the proceeds as he did.
Shortly after December 2010, the president of the association discovered a record that the accused had written two checks payable to cash. He confronted the accused who only then admitted that he had been "borrowing" funds from the association. The accused acknowledged at the trial panel hearing that he probably would have continued to withdraw funds for his personal use had the president not discovered the record of the two checks. The president of the association closed the accounts and asked the accused for an accounting. The accounting disclosed that the accused had withdrawn a total of $32, 600 from the accounts and that he had periodically paid back into one of the two accounts amounts totaling $18, 100. The accounting also disclosed that the accused still owed the association $14, 530 at that time.
In August 2010, the Bar filed a formal complaint against the accused, alleging that he had violated RPC 8.4(a)(2) and RPC 8.4(a)(3). The Bar alleged that the accused's conduct constituted theft, in violation of ORS 164.015, reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer in violation of RPC 8.4(a)(2). The Bar also alleged that the accused knowingly had converted association funds for his own use in a manner involving dishonesty and reflecting adversely on his fitness to practice law, in violation of RPC 8.4(a)(3). The accused filed an answer denying both alleged violations and affirmatively alleging "mitigating factors concerning the alleged actions including, but not limited to: no prior discipline, personal and emotional problems, physical disability, and full and free disclosure."
At the hearing before the trial panel, the accused admitted that his conduct was inappropriate but insisted that he did not commit theft because, at all times, he had intended to repay the association monies as soon as he could. The accused also emphasized that he did not attempt to conceal his misconduct and was forthright after the president of the association discovered his personal withdrawals He also testified that his mother and father had died and he had encountered emotional difficulties during that period of time. He said that he had felt depressed and desperate as a result of his personal and financial circumstances.
After the hearing, two members of the trial panel found that the Bar had proved both violations. In a written decision, the trial panel made findings and concluded that the sanction of disbarment was presumptively appropriate under the circumstances, citing American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards), Standard 5.21. After considering mitigating and aggravating circumstances, the trial panel imposed the sanction of disbarment.
The chair of the trial panel dissented from the majority's finding that the accused had committed a criminal act reflecting adversely on his honesty, trustworthiness, or fitness, in violation of RPC 8.4(a)(2), but concurred with the majority's finding that the accused engaged in dishonest conduct in violation of RPC 8.4(a)(3). The chair also dissented from the majority's decision to disbar the accused; he concluded that the ...