In Re Complaint as to the Conduct of White

*599 UNIS, J.,

concurring in part and concurring in the sanction.

The majority holds that the misdemeanor assault committed by the accused while he was intoxicated in 1983 — over seven and one-half years ago — is professional misconduct in violation of DR 1-102(A)(2) because it “reflects adversely on his fitness to practice law.” I disagree. Nevertheless, I concur in the sanction imposed by the court, and join all of the majority’s opinion except that portion of Part III relating to DR 1-102(A)(2).

DR 1-102(A)(2) provides that “[i]t is professional misconduct for a lawyer to * * * [cjommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.” In this case, the sole focus of our inquiry is the phrase “fitness to practice law.”

Many kinds of criminal conduct reflect adversely on fitness to practice law. Offenses such as fraud, embezzlement, and wilful failure to file income tax returns are illustrative. Some criminal offenses, however, do not implicate fitness to practice law. DR 1-102(A)(2) does not suggest, nor does the majority hold, that lawyers should be disciplined for all forms of criminal conduct. See 311 Or at 589. As the majority states, “[f|or example, a misdemeanor assault arising from a private dispute would not, in and of itself, violate [DR 1-102(A)(2)|.” 311 Or at 589.

Thus, although a lawyer is personally answerable to the entire criminal law, a lawyer is professionally answerable only for criminal offenses that indicate lack of those characteristics relevant to law practice.

“Fitness to practice law,” as that phrase has meaning in the context of DR 1-102(A)(2), refers to those characteristics relevant to law practice. It obviously includes more than technical legal skills. It encompasses respect for the legal process and “good moral character,” which is defined as “those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility.” In re Taylor, 293 Or 285 , 288 n 2, 647 P2d 462 (1982) (quoting Schware v. Board of Bar Examiners, 353 US 232, 247 , 77 S Ct 752 , 1 L Ed 2d 796 (1957) (Frankfurter, J., concurring)).

*600 In assessing whether to discipline a lawyer under DR 1-102(A)(2) for criminal conduct, the court should construe the criminal conduct provision of DR 1-102(A)(2), in my view, vexy much like the “good moral character” requirement for bar applicants in BR 7.5 1 and ORS 9.220(2)(b). 2 The fitness assessments of admitted lawyers through the disciplinary proceedings and the fitness assessments made of applicants through the good moral character requirement should be in harmony. 3 “Fundamentally, the question involved in both situations is the same — is the applicant for admission or the attorney sought to be disciplined a fit and proper person to be permitted to practice law * * *.” Hallinan v. Committee of Bar Examiners, 65 Cal 2d 447, 55 Cal Rptr 228, 421 P2d 76, 81 (1966). The “fitness to practice law’ ’ requirement in the disciplinary rule and the “good moral character” requirement for bar admissions are designed principally to protect the public from unethical lawyers who victimize them or abuse the legal process. It is important to protect the public equally from experienced unfit lawyers and from new unfit lawyers.

In In re Fine, 303 Or 314, 317 , 736 P2d 183 (1987), this court recognized that “[t]he statutory and administrative rules for admission to practice law in Oregon conform to the constitutional standard established by Schware [v. Board of Bar Examiners, supra]” In Schware , the Supreme Court of the United *601 States held that the good moral character requirement for admission to the Bar is constitutionally permissible as long as pre-admission conduct which is the basis for denying bar admission has a “rational connection with the applicant’s fitness or capacity to practice law.” 353 US at 239 . In In re Fine, supra, this court said that evidence of past acts or conduct may be relevant to the issue of whether a bar applicant is presently of good moral character “if rationally connected to [the] applicant’s fitness to practice law.” 303 Or at 317 .

Deciding whether particular criminal conduct is rationally connected with a lawyer’s or bar applicant’s fitness to practice law, however, can be difficult. It is a fact-specific inquiry. The concepts of “fitness to practice law” and “good moral character” are phrases that defy precise definition. The nature and gravity of the criminal act, the motivation of the lawyer or applicant in committing the crime, and the circumstances surrounding the crime are relevant considerations.

If admitted lawyers and bar applicants are treated similarly, then it follows that if a past criminal offense committed by a bar applicant would not, of itself, preclude a finding of present good moral character, the same act if committed by an admitted lawyer should not, of itself, establish present unfitness to practice law. Conversely, if a past criminal act committed by an applicant would, of itself, establish lack of good moral character, the same misconduct if committed by an admitted lawyer should, of itself, establish present unfitness to practice law.

Turning now to the present case, I do not believe that the 1983 misdemeanor assault is a criminal act that reflects adversely on the accused’s “fitness to practice law,” as that Gatch-all phrase has meaning iri the context of DR 1-102(A)(2). The assault, standing alone, does not indicate lack of those characteristics relevant to the practice of law. If committed by a bar applicant, it would not, of itself, preclude a finding of good moral character. The assault was an isolated incident, not involving a fixed pattern of misbehavior, and did not involve moral turpitude. There is nothing in the record that suggests that the assault is symptomatic of the accused’s character and behavior. The assault was committed while the accused was intoxicated; it was committed while the accused’s faculties and good judgment were unquestionably impaired. The accused, of *602 course, was personally answerable to the criminal law and the civil law for his misconduct. He should not, however, be held professionally answerable for the misdemeanor assault, because there is no rational connection between that isolated, dated offense and his fitness to practice law.

For the foregoing reasons, I join all of the majority’s opinion except that portion of Part III relating to DR 1-102 (A)(2). I concur in the sanction imposed by the majority.

BR 7.5 requires that a bar applicant establish by clear and convincing evidence that he or she has the requisite good moral character and general fitness to practice law, and that his or her admission to the practice of law in this state will not be detrimental to the administration of justice or the public interest.

ORS 9.220(2)(b) provides:

“[T]he lack of ‘good moral character’ may be established by reference to acts or conduct that reflect moral turpitude or to acts or conduct which would cause a reasonable person to have substantial doubts about the individual’s honesty, fairness and respect for the rights of others and for the laws of the state and nation. The conduct or acts in question should be rationally connected to the applicant’s fitness to practice law.” (Emphasis supplied.)

“ ‘Moral turpitude’ * * * imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usual, accepted and customary rule of right and duty which a person should follow.” ABA Model Code of Professional Responsibility Canon 1 n 13 (1986); Maryland Attorney Grievance Commission v. Walman, 280 Md 453, 459, 374 A2d 354, 358 (1977).

The court should be guided by the treatment afforded bar applicants who engage in similar misconduct. See In re Jaffee, 311 Or 159 , 806 P2d 685 (1991) (the Board of Bar Examiners should use this court’s prior disciplinary cases resulting in disbarment as a guide in assessing present moral character in admission cases).