concurring in part and specially concurring in part.
I join in much of what the majority has to say concerning what the accused did and what disciplinary rules were violated as a result of the accused’s actions. However, because I cannot agree with the majority with respect to the question whether the accused’s resort to “self-help,” by disbursing to herself a portion of the CSD settlement check in the accused’s trust account, involved “dishonesty,” I cannot join that part of the majority opinion that finds the accused not guilty of dishonesty under DR 1-102(A)(3).
The majority today holds specifically that “ ‘self-help’ to pay one’s earned fees is not per se dishonest, even though it violates another disciplinary rule.” 326 Or at 343. The majority assures us that this is not a new rule, however. Instead, that rule is deemed to have been implicit in a long line of cases, none of which ever involved the need to express it. With respect, I do not agree that the majority’s rule is one that this court is required to extract from the cases on which it relies. Instead, each of those cases reached the individual conclusion that it reached because the actions of the accused in those cases were in some way different or more aggravated forms of self-help than the form utilized by the accused in the present case. Neither do I agree that it follows, as the majority seems to feel that it does, that, if the actions of the accused *350lawyers in those earlier cases had been less aggravated, they would have been found not guilty.
The only case that appears to support the majority’s view directly is In re Whipple, 320 Or 476, 886 P2d 7 (1994). In that case, a lawyer had exercised self-help in order to obtain disputed funds belonging to two different clients. The accused maintained that he had earned all that he took. This court disagreed with respect to one of the two clients, and found the accused guilty of dishonesty under DR 1-102(A)(3). 320 Or at 481. With respect to the other client, however, this court found the accused not guilty of dishonesty under the rule because, as the majority describes the case, “the Bar had failed to prove by clear and convincing evidence that the amount taken had not been earned as a fee.” 326 Or at 344 (emphasis in original).
It is true that the court at one point in Whipple discussed the issue of dishonesty under DR 1-102(A)(3) as if the only way to demonstrate dishonesty would be to show that the accused had “dishonestly and intentionally appropriated [the client’s] money to his own use before he had earned it.” 320 Or at 485.1 give little weight to that statement, however, because, so far as I can determine, the Bar never argued in the alternative that the accused could be guilty of dishonesty on any other theory than that the fees were unearned. In my mind, that issue still should be an open one.
Returning to the facts of the present case, the majority very vividly sums up the accused’s behavior with respect to part of the CSD settlement check as follows:
“With respect to the CSD check, the accused paid herself with funds from the trust account without Olson’s agreement. She did so for the selfish purpose of being paid without awaiting the appropriate processes (such as fee arbitration or lien proceedings).”
326 Or at 346. The majority today nonetheless concludes that such a “selfish” act is not “dishonest.” With respect, one could advance that proposition to anyone outside our profession only with the expectation that the hearer would say, “That is a distinction that would fool only a lawyer.” Certainly, it should not fool this court, particularly when this court has *351defined “dishonesty” as being, among other things, a “lack of integrity.” In re Hockett, 303 Or 150, 158, 734 P2d 877 (1987). Where is the “integrity” in a lawyer’s sacrificing her client’s interest in favor of her own?
I would hold that the accused had no good faith claim that the trust account funds belonged to her, merely because she had performed services for Olson. Taking the funds was a dishonest act. It follows that I view the accused’s conduct in a far more serious light than does the majority.1
Van Hoomissen and Durham, JJ., join in this separate opinion.
It appears from the briefs in this and other cases that the Bar traditionally has felt constrained by Whipple from arguing that the removal of earned fees from a trust account in circumstances like the present case constituted “dishonesty.” To take the generous (for the accused) approach, I would be content even if the view that I espouse were to be adopted prospectively only. This case was our chance to correct a misunderstanding and to protect clients. Sadly, we’ve missed it.