|252 Ore. 174, *; 446 P.2d 123, **; |
1968 Ore. LEXIS 733, ***
In re Complaint as to the Conduct of WARNER W. GREGG, Accused
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF OREGON
252 Ore. 174;
446 P.2d 123;
1968 Ore. LEXIS 733
June 3, 1968, Argued
October 23, 1968
Petition for Rehearing Denied. Former Opinion Modified December 31, 1968.
On petition of Warner W. Gregg, for review of recommendation of the Board of
Governors of the Oregon State Bar.
Berkeley Lent, Portland, argued the cause and filed briefs for accused.
Herbert H. Anderson and Roland F. Banks, Jr., Portland, filed a brief for
Oregon State Bar.
JUDGES: In Banc. Perry, Chief Justice, and McAllister, Sloan, O'Connell, Goodwin,
Denecke and Holman, Justices.
OPINIONBY: PER CURIAM
[**123] The accused lawyer was found guilty of the following charges: failure to
prosecute a client's cause diligently, resulting in a dismissal of the cause;
[*175] of approximately $ 2,000 in funds of an organization of which he was
treasurer; and dilatory conduct in performing as an attorney for an estate.
The accused does not dispute committing these acts. The accused contends and
the trial committee found that the culpable conduct of the accused was caused
by alcohol addiction and that this is an important mitigating factor. The
Board of Governors of the bar did not consider this circumstance as mitigating
the charge of wilfully
[***2] misappropriating funds. The board, by a vote of 11 to one, recommended
permanent disbarment. One board member recommended suspension from practice
for five years and until such time as the accused shall be found fit to
practice. The trial committee had recommended a suspension for two years, but
only if the accused failed to totally
abstain from alcohol for five years.
The record contains no instances of any charges of unethical and illegal
conduct against the accused other than in this instance. The accused is at
present a Lieutenant Commander in the United States Coast Guard Reserve. His
superior has retained the accused in his position after he learned of accused's
The accused is in his late thirties. He was admitted to the bar in 1958, and
was in private practice in Portland with a small firm for five years. In 1963
he joined the legal staff of a state agency where he is now employed in
Portland. In 1962 his drinking substantially increased, and beginning in 1963
he had periods of alcoholic
[**124] amnesia, and, on occasion, was absent from his home and office for several
days at a time.
During this time the accused, although not in a legal capacity,
[***3] was treasurer of a
[*176] association fund. Between November 1964 and April 1965 he cashed 13 checks
upon this fund and appropriated the money, a total of about $ 2,000, to his own
use, apparently for the purchase of alcohol. After the association asked him
for an explanation the accused made full restitution between September and
The testimony of the accused was that he did not remember drawing or cashing
any of the checks. He stated that when he was first questioned about the
account being overdrawn he thought he had not made some deposits. When he was
shown the checks he admitted he had defaulted, but said he did not previously
know he had cashed them. He admitted an allegation made in the complaint that
"the financial statement previously prepared by the Accused indicated that there
were several hundred dollars in the bank account."
Early in 1965 the accused consulted a psychiatrist about his drinking problem,
but the consultations were unsuccessful in changing his drinking
habits. In July 1965 the accused went to a hospital specializing in the
treatment of alcohol addition. He took the prescribed treatment which includes
[***4] days of hospitalization followed by periodic
"reinforcement" treatments, the last one being in August 1966. He testified he has had
nothing to drink since he entered the hospital and there is no evidence
indicating the contrary.
The medical director of the hospital, a recognized authority on alcohol
addiction, testified that the accused was what he termed a
"primary alcoholic," meaning a person who has a normal, well integrated personality but who through
years of social drinking has developed an addiction. He stated that such an
addict has a tissue demand for alcohol. The witness distinguished
[*177] such an addict from one who has a deep-seated personality problem and uses
alcohol as an escape.
The medical director also testified that there is no permanent cure for such
addiction since an addict who has been
treated and has abstained for years, can take one drink and become addicted
The bar's position is that there was no testimony as to whether the accused was
drunk or sober when the checks were cashed, and that without such evidence they
could not conclude that the accused was mentally incompetent during all the
times he committed the defalcations. As stated,
[***5] the accused testified he did not remember cashing any of the checks.
We conclude from the evidence that the accused committed the defalcations
because of his addiction to alcohol. However, he knew what he was doing when
he cashed at least some of the checks and before the association officials
questioned him he was aware that he had committed defalcations.
The troublesome question is what form of discipline the public interest
requires for a lawyer who admittedly stole $ 2,000 and whose conduct apparently
was caused by alcohol addiction which he has at least for two years overcome.
We conclude the public interest requires that we adhere to our past principle
requiring disbarment of attorneys guilty of embezzlement and order the accused
In re O. H. Bengtson, 230 Or 369, 371, 370 P2d 239 (1962).
It is true that the accused's conduct was caused by alcohol; however, most
embezzlements are caused by pressures of some sort which the embezzler is
unable to withstand. The bar and the court owe the public
[*178] the obligation of keeping out of the practice of law those who cannot
withstand these pressures.
||252 OR 174
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