In the Matter of the Application of R. BEN GRAHAM, JR., For Reinstatement as an
Active Member of the Oregon State Bar
SC No. 29730
SUPREME COURT OF OREGON
299 Ore. 511;
703 P.2d 970;
1985 Ore. LEXIS 1372
June 10, 1985, Submitted on record
July 23, 1985
PRIOR HISTORY:
[***1]
On review of the Recommendation of the Trial Panel and the Disciplinary Review
Board of the Oregon State Bar.
DISPOSITION: Reinstatement denied. Costs awarded to the Oregon State Bar.
JUDGES: In Banc. *
* Carson, J., did not participate in this decision.
OPINIONBY: PER CURIAM
OPINION:
[*513]
[**970]
We are asked to reinstate R. Ben Graham, Jr. (applicant) as an active member of
the Oregon State Bar, BR 8.4-8.10. Applicant resigned as an active member
effective September 21, 1976, after proceedings for
unethical conduct had been commenced against him. The Trial Panel recommends that applicant
should not be
reinstated to the
practice of law. We agree and deny the application.
A detailed statement of the facts is required to explain the posture of this
case. Applicant was first before this court in his original application for
admission to the
practice of law in 1968. The Board of Bar Examiners had recommended that he be denied
admission because of his conviction for theft of a number of colonies of bees
which occurred when he was sixteen and seventeen years old. The Trial Panel
concluded, however, that the facts
"standing alone and in the absence of a subsequent
course of
[***2] conduct continuing to reflect to the discredit of the applicant, do not warrant
denying applicant
admission to the Bar." Further,
"the conduct of the applicant as disclosed by ample and positive evidence
adduced at this proceeding evidences a
rehabilitation of the applicant and that applicant is now a person of
good moral character and generally fit to
practice law in the State of Oregon." This court approved the admission of applicant to the
practice of law.
Applicant was accused, in 1976, of the following acts which are set out from
the complaint.
First cause:
"On or about January 16, 1976, the Accused was charged with and arrested for a
traffic offense in the City of Monmouth, State of Oregon. In posting bail for
the said traffic offense, the Accused executed and delivered to the City of
Monmouth a check upon the clients'
trust account of Ben Graham, Jr., in the amount of $ 305.00."
Second cause:
"On or about October 20, 1975, there was a personal judgment entered against the
Accused as a result of
a motion for summary judgment filed in Polk County Circuit Court, Case No.
22587. Immediately before the said judgment was entered, the Accused, well
knowing
[***3] that he was not going to
[*514] oppose the motion for
[**971] summary judgment, conveyed an interest of substantial value in
real property in Polk County, Oregon, to a close relative of the Accused, without any
monetary consideration and for no other consideration than love and affection.
The said conveyance was for the purpose of circumventing, avoiding and
defrauding creditors."
Third cause:
"During the year 1974, including September and October of that year, the Accused
was the attorney for Peter Haslebacher. The Accused, as the attorney for
Haslebacher, had the confidence of said client. Haslebacher, at the request of
the Accused, loaned to the Accused, on or about September 27, 1974, the sum of
$ 15,000.00. The Accused gave to Haslebacher, as security for the said loan, a
mortgage upon certain
real property. The Accused represented to Haslebacher that the said
mortgage was good security for the said loan, and the Accused did not advise
Haslebacher that the said
mortgage was in fact a second
mortgage upon the
real property and that the first
mortgage was in default. The Accused further failed to advise Haslebacher that the
Accused's wife had an interest
[***4] in the property, as the Accused and his wife owned said property as tenants by
the entirety. The Accused represented that he was the owner of the said
real property, and only the Accused signed the note and
mortgage to Haslebacher. The Accused misrepresented and misled his said client in
informing him of the security, the type of security and the interest that the
Accused had in said property; and the Accused improperly used his
attorney-client relationship with Haslebacher to acquire and close the said
loan as set forth above."
Fourth cause:
"Family Federal Savings and Loan Association thereafter commenced a
mortgage foreclosure upon the said
real property. The Accused, his wife, his father and Peter
Haslebacher were named as defendants in the said foreclosure. The Accused
filed an answer on behalf of himself, his wife, Laura L. Graham, his father, R.
B. Graham, and on behalf of Peter Haslebacher. The said named defendants had
conflicting interests."
Fifth cause:
"The Accused has, since on or about March 24, 1975, been the
personal representative of the estate of Chester W. Henkle, deceased, and has, during most of that
time, also been
[*515]
[***5] the attorney for the
personal representative of the estate of Chester W. Henkle, deceased. The following improper and
unethical conduct has taken place in the administration of the said estate:
"(1) The Accused has made partial distributions to the devisees of the estate
without filing a petition for the same and without acquiring a court order for
the said partial distributions.
"(2) The Accused has paid to himself attorney fees and
personal representative fees in excess of $ 40,000.00, without a court order approving the same.
"(3) The Accused has failed to keep adequate accounts in the said estate.
"(4) The Accused has failed to make timely filings of the necessary tax returns
for said estate.
"(5) The Accused represented to the devisees of the estate that certain checks
written by the
personal representative were for time deposits at the Bank of Willamette Valley or other banks; and,
in fact, the said checks were actually payments to the Accused."
Sixth cause:
"During 1975, the Accused advised his client, Mary F. Berry, to have her
employer place, not only the name of Mary F. Berry, but also the name of the
Accused, upon the said client's paychecks. Thereafter,
[***6] and at a time when there were executions and
garnishments outstanding against the paychecks of said client Berry, seven checks were in
fact
[**972] made out to the client Berry and the Accused; and the Accused paid all of
these checks or sums or nearly all of the said checks or sums to the client
Berry. The above action and conduct was without
legal basis and was done to avoid, circumvent and defraud the creditor or
creditors of client Berry. In answer to allegations and interrogatories on the
execution and
garnishment, the Accused filed an answer stating that he had received two checks from the
said employer of Berry, when in fact he had received seven checks."
Seventh cause:
"In 1972, the Accused represented one William M. Cannon against Mr. Cannon's
wife, Bertha E. Cannon, in a proceeding for separation from
bed and board. On September 11, 1972, a decree of separation from
bed and board was entered, awarding to William M. Cannon
real property consisting of a dwelling house located at 602 Levens Street,
[*516] Dallas, Oregon. William M. Cannon was of an advanced age, and the Accused
occupied a position of confidence with William M. Cannon. The said
real
[***7] property awarded to William M. Cannon was not mortgaged and was of
a value in excess of $ 12,000.00. By using his relationship with his client,
William M. Cannon, the Accused did, four days after the entry of the decree of
separation from
bed and board, on September 15, 1972, prevail upon the said William M. Cannon to deed the
said
real property to the Accused."
Eighth cause:
"The Accused has in the past owned or had an interest in a tavern or related
business located in or near Roseburg, Oregon. In paying personal obligations
and obligations of the said business, the Accused used checks drawn on his
clients'
trust account, including but not limited to a check dated January 30, 1974, in the amount of
$ 1,500.00 payable to a Mr. Voepel, and a check in the amount of $ 700.00,
payable to Welter's Food Service for a dishwasher."
Ninth Cause:
"The Accused has, in his practice, carried on a
course of
conduct that is
unprofessional and
dilatory; and he has failed to represent his clients adquately. Two of said occasions
are as follows:
"(a) The Accused was retained by one Hazel E. Hirschy to open a
conservatorship for two retarded people. In this relationship,
[***8] the Accused was
unprofessional,
dilatory and failed to adequately represent his client as follows:
"(1) The Accused failed to report and respond to his client.
"(2) The Accused failed to follow the client's wishes, namely to keep the said
conservatorships open.
"(3) The Accused paid himself a fee in the said
conservatorships, without a court order approving or directing the same.
"(b) The Accused represented one Sherry Lukins; and, in so doing, he was
unprofessional,
dilatory and failed to adequately to represent his client as follows:
"(1) He failed to report and respond to the client.
"(2) He failed to file documents as represented and agreed.
"(3) He failed to advise his client."
[*517] Tenth cause:
"In November,
1975, one Cecil Roy Ahrens was, in the Polk County Circuit Court, charged with
the crime of robbery in the third degree. The Accused was the court-appointed
attorney for the said Cecil Ray Ahrens. The Accused submitted a statement, as
court-appointed attorney, in the amount of $ 112.50 and was paid said sum by
order of the court. The Accused made charges to Cecil Roy Ahrens for attorney
fees for said representation and
[***9] was paid by said Cecil Roy Ahrens the sum of $ 150.00; and the Accused has,
since the disposition of the said case, continued to submit a statement to the
said Cecil Roy Ahrens asserting that the said Cecil Roy Ahrens still
[**973] owes the Accused the sum of $ 105.00. The Accused never advised the Circuit
Court of Polk County that said Cecil Roy Ahrens paid the Accused any attorney
fees or that the Accused was collecting attorney fees from the [said] Cecil Roy
Ahrens. In addition, the
Accused received $ 180.00 from Cecil Roy Ahrens for the purported purpose of
making
restitution to the victim. Such
restitution was never requested, such
restitution was never made, and said funds have never been returned to Cecil Roy Ahrens."
Eleventh cause:
"The aforesaid conduct and
course of conduct of the Accused, alleged hereinabove in causes first to and including tenth of
this complaint, taken in the aggregate, was and is detrimental and prejudicial
to the honor, integrity and standing of the profession of lawyer, the
practice of law and the administration of justice in this state, and was and is subversive to
the public interest; it constituted and constitutes conduct
[***10] rendering the Accused unfit to
practice law in this state; and it was and is such conduct, in breach of the standards and
rules of
professional conduct established by law and by the Oregon State Bar, that, if the Accused were now
applying for admission to practice in this state, or for admission to the
Oregon State Bar, his application should be denied."
Applicant, in his
resignation,
stated that he was aware of the pending complaint and without admitting any of
the allegations in the complaint tendered his
resignation. He also stated,
"I understand any future application by me for
reinstatement as a member of the Oregon State Bar will be treated as an application by one
who has been suspended or disbarred for
professional misconduct and, on such application, that I shall
[*518] not be entitled to a reconsideration or re-examination of the facts,
complaints, allegations or charges on which this
resignation is predicated."
In this proceeding the Bar claims that subsequent events demonstrate
applicant's continuing lack of
good moral character and general
fitness to practice law. It recommends that his request for
reinstatement be denied.
Upon this court's
[***11] acceptance of the
resignation, applicant was directed to deliver all his files into the physical custody of
his attorney. Applicant failed to do that and on October 15, 1976, was ordered
to show cause why he should not be held in contempt for failure to comply with
the previous court order.
Upon learning that the applicant had withdrawn money from his
trust account, this court also ordered the officers and directors of the Bank of Willamette
Valley of Dallas, Oregon, not to pay out any money from the
trust account without further order of the court. Further, pursuant to a search warrant,
applicant's legal files and account books were seized from his law offices.
In November 1977, applicant filed for bankruptcy. Included in the discharged
debts totalling some $ 130,000 were obligations
owed by applicant to former clients or arising out of litigation initiated against
applicant by former clients. Applicant also failed to file income tax returns
for the years 1973 through 1976 and there is a current tax liability of
approximately $ 90,000. Applicant presently is subject to a continuing
garnishment as a result of this liability.
Applicant claims that much of his professional
[***12] and personal misfortunes are attributable to
alcoholism but he claims to have recovered from the disease. He asserts that while there
was some confusion and difficulty in transferring his legal files after the
resignation, he did not ignore the court's order. He claims that while he has not made
repayments to former clients, he is willing to do so. He contends that his
failure to file income taxes does not demonstrate any continuing lack of
good moral character and general
fitness to practice law, and that he is fully rehabilitated and fit to
practice law.
[**974] The Trial Panel, in recommending that applicant not
[*519] be
reinstated, found that applicant had not
"taken any significant meaningful steps to deal with his
alcoholism which show evidence that his problem with alcohol has been resolved or
significantly dealt with and is now under control and is not likely to be a
problem for him in the future." The Trial Panel also found that applicant had not taken responsibility for his
conduct involving former clients, he had not undertaken any
restitution to these clients and he showed little remorse
for the clients' losses. The Trial Panel indicated reservation about
[***13] applicant's
truthfulness and expressed its concern that applicant has not come to grips with the
enormity of his past
professional misconduct and that he
"still blames persons and forces outside of himself as being the cause of his
prior
professional conduct."
From our review of the record we find much evidence that is favorable to
applicant. After his
resignation he went to Las Vegas, Nevada, where he has been employed as a senior law clerk
in the district attorney's office. He is currently working in the appellate
division but has worked in the
criminal division and the consumer fraud division. The chief deputy of the
criminal division, as well as the county counsel and chief deputy in the district attorney's
office, testified in behalf of applicant. The latter, applicant's supervisor,
testified that applicant is an
"exemplary example of
rehabilitation," that
"he would bring credit to the profession" and that
"whatever his misdeeds they are relegated to ancient history." The co-founder and currently active worker in Community Action Against Rape testified
that applicant had been involved in breaking up a
"child sex ring" and in prosecuting the responsible persons and that his
[***14] personal qualities were outstanding in dealing with the victims and in
handling the sensitive situations which were involved.
Applicant's goal is to be
reinstated in Oregon so that he can take the Nevada Bar examination and become an
attorney in the district attorney's office. The Nevada State Bar has told
applicant that his
reinstatement in Oregon is a prerequisite for permission to take the Nevada Bar examination.
Applicant is divorced from this first wife; there are four children by that
marriage. Applicant is current in his child support obligations. There are
four children by his
[*520] second marriage; all were under the age of six at the time of the hearing.
There was testimony from a person who knows applicant and his wife as members
of the Episcopal
church who testified that
applicant attends
church
regularly and is a good father and husband. Applicant's wife testified that he is a
very different person now than when she met him; he no longer has a drinking
problem and he has different ideas now about commitments and success. She was
totally supportive of applicant's
reinstatement.
We do not agree with the Trial Panel that applicant has not taken significant
[***15] steps to control his
alcoholism. During his first two years in Nevada he attended Alcoholics Anonymous
regularly. He still attends meetings but not as
regularly. Applicant explained that the untimely death of a friend from alcohol abuse had
a significant impact on him and he credits his regular
church attendance as a factor in helping him avoid the use of alcohol. He testified
that he had had a drink or two in social situations since he has been in Nevada
but the realization that the
"old patterns could be repeated" has curbed any desire to drink socially. He is on self-administered antabuse and he has had no problem with alcohol interfering with
his work or personal life. We conclude from this evidence that applicant has
his alcohol problem under control at this time.
The primary deficiency in applicant's
rehabilitation is his apparent lack of interest in informing himself of what money is
owed to former clients and in making
restitution to those former clients. Applicant does indicate his willingness to do so and
suggests that he will be better able to do that if he can again be an attorney
earning a better salary. However, in his testimony
[**975] he indicated he had
[***16] made no effort to determine what amounts he
owed clients because he was not in a position to
repay any of them. The evidence indicates that applicant confessed judgment in at
least three instances. While applicant was uncertain about the amounts
owed to former clients, he indicated that he would have no objection to renewing
those debts waiving any statute of limitations defenses.
Applicant's financial situation, while subject to the expenses of a young
family, is not bad. The combined earnings of applicant and his wife total a
disposable annual income of $ 46,000. Applicant has worked at second jobs from
time to
[*521] time to supplement his income. He worked as an assistant manager for a fast
food delicatessen operation and as a taxi cab driver. He is currently teaching
criminal law classes two evenings a week at Clark County Community College.
The family income is subject to a
monthly
mortgage payment of $ 750,
monthly child support payment of $ 300 and
monthly babysitting expenses of $ 500. We recognize the many other expenses attendant
to the raising of four children. However, we agree with the Trial Panel that
applicant has not demonstrated his appreciation of
[***17] the magnitude of misuse of client's funds and property. In order to
demonstrate that, and as a prerequisite to
rehabilitation, it is necessary that applicant take steps to learn exactly what is
owed, if anything, to each of his former
clients and to develop a plan to commence to
repay those obligations. It is in this area of responsibility to clients that the
Trial Panel expressed concern about applicant's
truthfulness. We think it is not so much a lack of
truthfulness as a lack of identifiable
rehabilitation through a commitment to
repay his former clients. Applicant may be able to achieve that, however.
Applicant has not at this time established by clear and convincing evidence
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. BR 8.9. For this reason we deny applicant's
reinstatement to the Oregon State Bar.
Reinstatement denied. Costs are awarded to the Oregon State Bar.
