In re Application of: GARY D.
GORTMAKER For Reinstatement to the Practice of Law in Oregon
SC No. 27452
SUPREME COURT OF OREGON
308 Ore. 482;
782 P.2d 421;
1989 Ore. LEXIS 544
July 6, 1989, Submitted on record and briefs
November 16, 1989
PRIOR HISTORY:
[***1]
Review of the recommendation of the Oregon State Bar.
DISPOSITION: Application for reinstatement denied. Actual and necessary costs and
disbursements incurred awarded to the Oregon State Bar. ORS 9.539; ORS
9.536(4); BR 10.7.
COUNSEL: Martha M. Hicks and Teresa J. Schmid, Assistant Disciplinary Counsel, Oregon
State Bar, Lake Oswego, for the Oregon State Bar.
Gary D. Gortmaker
pro se.
JUDGES: Peterson, Chief Justice, and Linde, Jones, Gillette, Van Hoomissen and
Fadeley, Justices.
OPINIONBY: PER CURIAM
OPINION:
[*484]
[**422] Applicant Gary D. Gortmaker seeks
reinstatement to membership in the Oregon State Bar (Bar). This court
summarily
suspended him from the
practice of law in 1980 upon his conviction of crimes. The Bar's trial panel recommends
against
reinstatement. On
de novo review, we deny
reinstatement.
I.
Applicant was admitted to practice law in Oregon in 1957 and served as Marion
County
District Attorney from 1965 until 1980. In 1980, he was charged with three counts of first
degree
theft, two counts of tampering with public records, two counts of unsworn
falsification, and one count of first degree official misconduct, resulting
from actions he took in his official capacity as
District Attorney. After trial,
[***2] a jury found him guilty of all eight counts. n1 His convictions were affirmed
on appeal.
State v. Gortmaker, 60 Or App 723, 655 P2d 575 (1982),
aff'd
295 Or 505, 668 P2d 354 (1983), US
cert den
465 US 1066 (1984).
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n1 The trial court issued three separate judgments: on one count of
theft applicant received a sentence of
"discharge" pursuant to ORS 137.010(5)(d); for official misconduct he was fined $ 500; on
the state's motion, the remaining six counts were merged into a single count of
first degree
theft for which he was
sentenced to a term of imprisonment not to exceed four years and ordered to pay Marion
County $ 15,000 as partial
restitution.
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In November 1980, this court
summarily
suspended applicant from the
practice of law.
See former Section 4, Oregon State Bar Rules of Procedure Relative to Admission,
Discipline, or
Resignation and
Reinstatement (July 1978). n2
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n2
Former
Section 4 provided:
"If it appears to the court that a member has been
convicted of a misdemeanor
involving moral turpitude or of a
felony, the court may
suspend such member
summarily. * * * Rules of procedure relative to
discipline do not apply to a
suspension under this rule. The
suspension continues until the former member is
reinstated by the court. If it is made to appear to the court that the conviction is
reversed on appeal, the
suspension imposed under this rule shall be lifted by the court."
Current BR 3.4(e) allows this court to refer the matter of whether an attorney
should be disciplined to the Bar's Disciplinary Board, whether or not this
court
suspends the attorney upon conviction of a crime.
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[***3]
In December 1987, applicant petitioned the Oregon State Bar for
reinstatement. The Bar's Board of Governors
[*485] reviewed and forwarded the petition to this court with its
recommendation against
reinstatement. Applicant had 28 days to petition for
review.
See BR 8.6,
infra, at n 4. He did not do so. In June 1988, we denied his
reinstatement.
In August 1988, applicant requested that this court review the Board of
Governors' adverse
recommendation and
terminate his
suspension, or establish a date certain for his
reinstatement. n3 The Bar opposed applicant's
[**423] requests but did not oppose referring the matter to its Disciplinary Board for
trial.
See BR 8.6. n4 Applicant then moved to withdraw his
[*486] request for review, asking instead that we
terminate his
suspension without further involvement of the Disciplinary Board. We allowed him to
withdraw his request for review and referred his application for
reinstatement to the Disciplinary Board for trial.
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n3 We treated the submission as a request for relief from default and for an
extension of time to file a petition for review of the Board's adverse
recommendation. We granted relief and
treated the document as a timely petition for review.
In support of his request, applicant cited ORS 670.280, which provides:
"Notwithstanding any other law, no licensing board or agency shall deny,
suspend or revoke an occupational or professional license or certification solely for
the reason that the applicant or licensee has been
convicted of a crime, but it may consider the relationship of the facts which support
the conviction and all intervening circumstances to the specific occupational
or professional standards in determining the fitness of the person to receive
or hold such license or certificate."
That statute has no relevance to this proceeding. The Supreme Court is not a
"licensing board or agency" within the meaning of ORS 670.280.
ORS 9.529 provides:
"Bar proceedings relating to
discipline, admission and
reinstatement are neither civil nor criminal in nature. They are sui generis and within the
inherent power of the Supreme Court to control. * * *"
The Supreme Court and not the Bar has
final authority over bar proceedings relating to
discipline, admission and
reinstatement of attorneys in this state. ORS 9.527(2) provides:
"The Supreme Court may disbar,
suspend or reprimand a member of the Bar whenever, upon proper proceedings for that
purpose, it appears to the court that:
"(2) The member has been
convicted in any jurisdiction of an offense which is a misdemeanor
involving moral turpitude or a
felony under the laws of this state * * * in any of which cases the record of the
conviction shall be conclusive evidence * * *."
See
In re Thomas, 294 Or 505, 659 P2d 960 (1983);
State ex rel Robeson v. Oregon State Bar, 291 Or 505, 632 P2d 1255 (1981).
[***4]
n4 BR 8.6 provides:
"Not later than 28 days after the Bar files an adverse
recommendation regarding the applicant with the Court, the applicant shall, if he or she
desires to contest the
Board's
recommendation, file with the Disciplinary Counsel and the State Court Administrator a
petition stating in substance that the applicant desires to have his or her
case reviewed by the court. If the court considers it appropriate, it may
refer the petition to the Disciplinary Board to inquire into the applicant's
moral character and general
fitness to practice law. Written notice shall be given by the State Court Administrator to Disciplinary
Counsel and the applicant of such referral. The applicant's
resignation, disbarment,
suspension or inactive membership status shall remain in effect until final disposition
of the petition by the court."
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In October 1988, the Bar filed its statement of objections to applicant's
reinstatement, and he responded in November 1988. A Disciplinary Board trial panel heard the
matter and filed its opinion in January 1989. n5 The trial panel concluded that
applicant had
[***5] not shown by
clear and
convincing evidence that he has the
requisite
good moral character and general
fitness to practice law and that his
resumption of the
practice of law will not be
detrimental to the administration of justice or the
public interest. BR 8.10. n6 The trial panel recommended that his petition for
reinstatement be denied.
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n5 Applicant challenges none of the trial panel's findings of fact.
n6 BR 8.10 provides:
"An applicant for
reinstatement to the
practice of law in Oregon shall have the burden of establishing 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
resumption of the
practice of law in this state will not be
detrimental to the administration of justice or the
public interest."
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In March 1989, applicant asked this court to
terminate his summary
suspension, to
"discard" the trial panel's
recommendation, to refer his case to a new trial panel or to refer his case to the
original trial panel
[***6] with instructions, and to stay these proceedings while he pursues
post-conviction proceedings in the underlying criminal case. n7 The Bar opposed applicant's
several
[**424] motions and moved to strike them for noncompliance with ORAP 4.05, 7.05 and
7.23. We denied the
[*487] Bar's motion to strike and allowed applicant 28 days to petition for review.
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n7 Applicant contended that 1980 summary
suspension violated due process, equal protection and separation of powers under the
state and federal constitutions; that the trial panel was biased and employed
the wrong standard in evaluating his evidence of rehabilitation; and that the
trial panel erred in receiving certain evidence offered by the Bar. Apparently
he has abandoned those contentions, because he has not pursued them in
subsequent submission.
In July, 1988, applicant filed a petition for post conviction relief alleging
that he was denied effective
assistance of counsel in the 1980 criminal proceedings because: his
trial attorney failed or neglected to adequately prepare for trial, investigate the charges,
interview and use available witnesses, use available records and documents in
applicant's defense, challenge the prosecution's records
"now known to be erroneous and false," complete discovery, and obtain required and needed documents prior to trial.
That proceeding is pending.
Gortmaker v. State of Oregon, Marion County Circuit Court No. 88C-11038.
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[***7]
In May 1989, applicant filed a
"Petition for Modification of Panel Decision," a
"Waiver of Brief," and a supporting memorandum, asking us
"to consider
de novo upon the record the
recommendation of the Bar panel * * * and to modify in part the conclusions expressed" and to reinstate him
"subject to conditions or otherwise." We treated those materials as a petition for review and a waiver of
further briefing. Applicant waived oral argument. We now consider his
application on the record and the parties' submissions.
II.
The purpose of professional
discipline is to protect the public and the administration of justice from lawyers who
have not discharged, will not discharge, or are unlikely to properly discharge
their professional duties to their clients, the public, the legal system, and
the legal profession.
See
In re Germundson, 301 Or 656, 664, 724 P2d 793 (1986);
In re Bristow, 301 Or 194, 206, 721 P2d 437 (1986);
see also ABA Standards For Imposing Lawyer Sanctions (1986) 1.1.
An applicant for
reinstatement to the
practice of law has the burden of establishing by
clear and convincing evidence that he
[***8] has the
requisite
good moral character and general
fitness to practice law and that his
resumption of the
practice of law will not be
detrimental to the administration of justice or the
public interest.
See BR 8.10,
supra;
In re Graham, 299 Or 511, 521, 703 P2d 970 (1985);
In re Bevans, 294 Or 248, 251, 655 P2d 573 (1982).
"Clear and convincing evidence" is evidence sufficient to establishes that the truth of the facts asserted is
highly probable.
Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 402, 737 P2d 595 (1987);
In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). The Bar has the initial burden of producing evidence that an applicant should
not be readmitted to practice. BR 8.11. The applicant for
reinstatement, however, has the ultimate burden of proving
good moral character and general
fitness to practice law. This court reviews
de novo. ORS 9.539; BR 10.6. On review, our primary focus is upon applicant's
post-suspension conduct.
[*488] III.
The record contains evidence supporting the
trial panel's
recommendation against
[***9]
reinstatement. First, applicant has failed to come to grips with his 1980 convictions. The
trial panel concluded and we agree with its conclusion that:
"Mr. Gortmaker believes he was wrongly charged and
convicted of the
felony."
Applicant states that he does not believe he is guilty of the crimes for which
he is
convicted. He argues that it would not make him a better lawyer or demonstrate better
character to acknowledge
"a degree of guilt he did not truly feel or believe." He states that the record is not clear how much money he used
illegally. He offers letters from
"expert(s) in fiscal accounting and audits," apparently to persuade us that his 1980 jury convictions were wrongful or to
minimize the extent of his crimes or both. He argues that the information in
those letters makes it difficult for him to accept the magnitude of the charges
against him. He also argues that he has grounds for
post-conviction relief
"because his
trial attorney was unprepared and did not even appear on every
day of the trial."
The grounds for applicant's
suspension are relevant to his application for
reinstatement only insofar as they reflect upon his present character and general
[***10]
fitness to
[**425] practice law.
See
In re Bevans, supra, 294 Or at 251. We find instructive the comments of the trial judge who
sentenced applicant in 1980. The trial judge summarized some of these comments as
follows:
"The [trial judge commented that the] activities of Mr. Gortmaker were a gross
breach of public trust; large sums of money were involved in the
theft count; the actions of Mr. Gortmaker resulting in the
thefts of money involved an elaborately planned scheme; and Mr. Gortmaker's conduct
continued over a period of years.
"Further, the trial judge stated that this was not simply a case of
theft and it was not simply a case of
theft by a person who happened to be in a public office;
rather, he said '* * * it's a case of
theft of government funds and the
theft of government funds were related to the conduct of his office. And his office
was the chief law enforcement office of Marion County.'
"* * *
"4. In the same sentencing proceedings, the state and the
[*489] trial judge were not able to identify a precise amount of funds that had been
stolen by Mr. Gortmaker. The court decided that if it was to err, it would err
on the side of
[***11] not imposing
restitution in an excessive amount, and this resulted in the
restitution order of $ 15,000."
We also find relevant the following remarks the trial court made at the
sentencing hearing:
"The public lost a number of thousands of dollars because of this crime. But
the loss of public funds is not the most serious aspect of the crime; rather,
it's the loss of confidence in our institutions. There is a sizable cynical
minority of * * * citizens who choose to believe that all elected officials are
dishonest and that is shown by at least one of the letters that I
read. The conviction in this case serves to confirm their suspicions and
raises questions in the minds of many others as to the extent of official
corruption. And I think that is the greatest harm that's done by the defendant
in connection with this case."
Second, applicant also persists in minimizing the gravity of his crimes. The
trial panel found:
"11. In his Application For Nursing Home Administrator Provisional License to
the Board of Examiners of Nursing Home Administrators, dated october [sic] 8, 1987, Mr. Gortmaker stated he had been
convicted of a
felony, but that he had not been
convicted
[***12] of a crime
involving moral turpitude. As a 'special explanation' on the application, Mr. Gortmaker explained his
felony conviction as follows:
"'In 1980 Gary Gortmaker received a Class C
felony conviction. It was for, under the prosecutor's theory, receiving a benefit of
more the [sic] $ 200. This was under the
general statute entitled
Theft. He was
District Attorney at the time.
"'Further information should tell that Mr. Gortmaker was NOT
convicted of stealing, pocketing, embezzling or taking any money. The jury verdict was
that from a budget of more than 3 million dollars, of which $ 166,000 was his
discretionary funds as a public official, he benefited to the extent of $
200.00 over a period of two years (1977 - 1979).'
"* * *
"16. Mr. Gortmaker acknowledges that some amount of money in excess of $ 200
was
illegally used by him. He disagrees, however, that it was as much as $ 15,000. He said
'nobody knew' how much of it was
illegally used."
[*490] The trial panel concluded and we agree:
"[Applicant's] protestation that it was not as much as $ 15,000 demonstrates
that he does not recognize and acknowledge the severity of what he did."
See
[***13] ABA Standards For Imposing Lawyer Sanctions,
supra, 5.1.
Third, applicant blames his
trial attorney and the state's witnesses rather than himself for his convictions and
subsequent
suspension. The
trial panel found:
[**426]
"12. In Mr. Gortmaker's application for
reinstatement as a member of the Oregon State Bar, he included as additional information a
statement that at his
criminal trial, he was confronted by the direct accusation of only one witness - Cheryl
Jacobsen, a bookkeeper in Mr. Gortmaker's office, and that after his
convictions for his 'alleged' 1977 to mid-1979 conduct, Cheryl Jacobsen was
convicted two separate times for embezzlement." n8
The trial panel also found:
"7. In 1983, after having served time in prison, and after the convictions as [sic] been affirmed on appeal, Mr. Gortmaker filed a civil action [against Jacobsen
and several others] in Federal Court alleging generally, that he had been
wrongfully
convicted of a charge he did not commit as a result of the conspiracy and untruthful
actions and statements on the part of the defendants named
in that case. That case was dismissed by stipulation in 1984." n9
As previously noted, applicant's
[***14] petition for
post-conviction relief, alleging the ineffective assistance of his 1980 trial counsel, is
pending.
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n8 Jacobsen, a key witness against applicant at his 1980
criminal trial, was herself
convicted in 1982 of embezzlement of $ 16,940 from the Marion County Juvenile
Department. She also was
convicted in 1988 in Douglas County of
Theft in the First Degree and was
sentenced to five-years bench probation and ordered to pay $ 16,314.44
restitution.
n9
Gortmaker v. Jacobsen, USDC Or No. 813-6252-E.
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In sum, applicant's attitude throughout these proceedings can fairly be
characterized as being that he was wrongly charged, unjustly
convicted, and harshly punished and that any crimes he did commit are
de minimis.
Fourth, there is evidence in the record that applicant
[*491]
practiced law while
suspended or, at the very least, that he displayed a cavalier disregard for the truth by
misrepresenting his status. The trial panel found:
"9. During 1984-85, Mr. Gortmaker was a law clerk for a Salem
[***15] attorney. The attorney and Mr. Gortmaker engaged in lengthy and detailed
discussions about the delineation between the
practice of law and law clerk functions. The purpose of such discussions was to make sure Mr.
Gortmaker did not engage in the
practice of law.
"10. Subsequently, Mr. Gortmaker was employed by or under contract with a
retirement and health care corporation, performing numerous functions.
Included in correspondence dated November 24, 1987, Mr. Gortmaker made a demand
on behalf of the corporation for over $ 100,000 damages, and the letter
included the following: 'Because a land sale contract is involved allowing
attorney's fees, said fees are demanded in the amount of $ 3,600 to date.
Should this matter proceed to trial, the Court will be asked to allow a
reasonable attorney's fee or fees.' That letter recites a copy was sent to a
licensed attorney who testified he occasionally did legal work for the
corporation.
"Prior to November 24, 1987, Mr. Gortmaker repeatedly identified himself in
correspondence on the same matter as 'general counsel' and 'corporate counsel.'
"While so corresponding, Mr. Gortmaker knew his privilege to practice law had
been
suspended.
[***16] Regarding the demand for $ 3600 attorney fees, Mr. Gortmaker knew he was not
entitled to any attorney fees, and he knew no attorney had earned up to that
date anywhere near that amount of fees on that matter. Further, he was not
being supervised by a licensed attorney on the matters in question.
"As of December 22, 1987, Mr. Gortmaker
began referring to himself as 'house council' [sic] as indicated in his December 22, 1987, Application for
reinstatement as an active member of the Oregon State Bar, and in a January 19, 1988, letter
regarding the retirement and health care corporation matter.
"Mr. Gortmaker stopped referring to himself as 'counsel' or 'council' when the
attorney with whom he had discussed the
[**427] delineation between attorneys and nonattorneys in
[*492] 1984-85, (see paragraph nine herein), became aware of it and told him to stop
doing it." n10
Those findings are supported by the record and are not challenged by applicant.
In our independent review of the record, we find that applicant misrepresented
himself as an attorney and practiced law while
suspended.
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n10 Applicant represented himself as
"General Counsel" for the corporation in letters dated September 21, October 13, 14, 20 and 29,
November 2, 16 and 18, and
December 15, 1987; as
"General Council [sic]" in a January 19, 1988 letter; and as
"Corporate Counsel" in a October 15, 1987 letter.
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[***17]
In
In re Kraus, 295 Or 743, 670 P2d 1012 (1983), we stated:
"The continued
practice of law after an order of this court suspending an attorney from the
practice of law engenders 'substantial doubts about the individual's * * * respect for * * *
the laws of the state' and therefore demonstrates a lack of
good moral character. ORS 9.220(2)(b)."
In
Kraus, we also recognized the high standard of conduct required of persons in the
legal profession:
"'The degree of truthfulness expected from a lawyer is higher than that expected
from others.' The highest standard of conduct is necessary to retain the trust
and confidence of the general public." (Quoting from
In re Jeffrey Steffen, 279 Or 313, 317, 567 P2d 544 (1977).)
295 Or at 753.
See
In re J. Graham Killam, 256 Or 297, 473 P2d 130 (1970) (reinstatement denied attorney who continued to hold himself out as licensed to practice law
after
resignation from bar);
State ex rel Oregon State Bar v. Lenske, 243 Or 477, 490, 405 P2d 510, 407 P2d 250,
[***18]
cert den
384 US 943 (1966) (attorney must abide by
suspension regardless of belief that the underlying conviction will be reversed).
Fifth, the record contains letters from several public officials, lawyers, and
others, strongly opposing applicant's
reinstatement. Included are letters from the current Marion County
District Attorney, the Marion County Legal Counsel, the Executive Committee of the Oregon
District Attorneys Association, a former Marion County deputy
district attorney who had worked
for applicant and had testified against him in 1980, and a member of the
prosecution team during applicant's 1980
criminal trial. In essence, the letters' authors
[*493] assert that applicant is not a person of
good moral character and that his
resumption of the
practice of law at this time would be
detrimental to the administration of justice and/or the
public interest.
We also find evidence in the record favorable to applicant. He acknowledges
that he is an alcoholic and represents that his condition is
presently under control. The Bar does not dispute his present sobriety. The trial
panel found:
"13. Mr. Gortmaker considers himself to be an alcoholic,
[***19] and he was heavy into alcohol during 1977 through 1979. n11 Since then, he has
been a recovering alcoholic and has been successful to date."
We conclude from the record that applicant's alcohol problem is
presently under control.
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n11 The trial panel also found that although alcohol was a
"major force" in applicant's life during 1977-79, it was
not raised as a defense or in mitigation during his 1980
criminal trial.
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Applicant also represents that he has performed more than 400 hours of
volunteer service assisting senior citizens and, additionally, that he has
spent
"countless hours" as an advisor in community alcohol and drug support programs. The Bar does
not dispute his representations. The trial panel made no finding of fact on
this matter. We conclude from the record that applicant's representations
concerning his volunteer community service are substantiated.
Applicant submitted several letters supporting his
reinstatement, all of which assert that he is a person of
good moral character and that his
[***20]
resumption of the
[**428]
practice of law at this time would not be
detrimental to the administration of justice and/or the
public interest. n12
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n12 The trial panel observed that:
"The trial judge [at applicant's 1980
criminal trial] also acknowledged the many letters that had been submitted in support of Mr.
Gortmaker, including letters from policeman [sic],
doctors, and others. Such letters indicated faith in Mr. Gortmaker and belief
in his good character. The court went on to say, however, that it felt if
those individuals had been in the courtroom during the entire course of the
trial, it did not think such supporters could have continued to entertain their
views unless their friendships with Mr. Gortmaker clouded their judgments. The
court went on to say that in its judgment, Mr. Gortmaker systematically and
over a period of years stole money belonging to Marion County and used it for
his own purposes, and that the money was in the sum of thousands of dollars."
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[*494] A circuit judge states that, while he
[***21] is not familiar with the evidence at applicant's trial, the judge does not
feel that applicant was guilty of the crimes of which he was
convicted. Another circuit judge states that applicant's conviction was an
"aberration." He feels that people were surprised when applicant was
convicted and that,
"perhaps all the evidence did not come out." He has never discussed the facts of the
1980 criminal case with applicant. A third circuit judge, without commenting
on applicant's 1980 convictions, also supports
reinstatement. An attorney who has known applicant for many years states that he does not
believe that applicant was guilty and that applicant has expressed remorse
"about the criminal convictions" on a number of occasions. Another attorney states that applicant now believes
that he misused county funds but that applicant also believes that
"he did not put any money into his own pocket." A third attorney opines that there is a basis for applicant's
post-conviction claim of ineffective assistance of trial counsel in 1980. He is satisfied,
however, that applicant was not falsely accused nor wrongly
convicted. n13
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n13 Although applicant argues that he has paid his debt to society by serving
his prison sentence and paying
restitution, we are not persuaded that those facts are relevant to our consideration of his
petition for
reinstatement.
See
ABA Standards For Imposing Lawyer Sanctions, supra, 9.4 (compelled
restitution irrelevant to imposition of sanction). Applicant had no choice in these
matters -- the law required him to do them.
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[***22]
IV.
We agree with the trial panel's
recommendation that applicant should not be
reinstated to the
practice of law. He has not demonstrated by
clear and convincing evidence that it is
"highly probable" either that he has the
requisite
good moral character and general
fitness to practice law or that his
resumption of the
practice of law in this state will not be
detrimental to the administration of justice or the
public interest.
Applicant requests in the alternative that he be
reinstated conditionally. In
In re Rowell, 305 Or 584, 592, 754 P2d 905 (1988), we considered an analogous issue on another applicant's initial application
for admission to practice law:
"A possibility has been raised that applicant should be admitted conditionally
or on probation. We think, however,
[*495] that if this court is convinced that applicant is
presently of
good moral character, he should be admitted. If the court is not convinced, his application for
admission should be denied. If a lawyer is of
good moral character, the lawyer should be able to start a legal career on the same basis as other
lawyers." (Citation omitted.)
Our reasoning in
Rowell
[***23] is equally applicable to an application for
reinstatement. Because we do not find applicant here qualified for
reinstatement, we also deny him conditional
reinstatement.
Application for
reinstatement denied. Actual and necessary costs and disbursements incurred awarded to the
Oregon State Bar. ORS 9.539; ORS 9.536(4); BR 10.7.
