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252 Ore. 174, *; 448 P.2d 547, **;
1968 Ore. LEXIS 734, ***

In re Complaint as to the Conduct of WARNER W. GREGG, Accused



252 Ore. 174; 448 P.2d 547; 1968 Ore. LEXIS 734

October 23, 1968


252 Ore. 174 at 178.

Review of recommendation of Board of Governors of Oregon State Bar.

DISPOSITION: Petition for Rehearing Denied. Former Opinion Modified December 31, 1968.

COUNSEL: Berkeley Lent, Portland, for the petition.

JUDGES: In Banc.


OPINION:  [*179]   [**547]  The accused was disbarred and has filed a petition for rehearing. We have re-examined our disciplinary policy in the context of these proceedings and determined that the form of discipline ordered was inappropriate.

 [**548]  We adhere to the statements made in our former opinion regarding the culpability of the petitioner. It is the order of disbarment as discipline for these acts which has caused our reconsideration.

We did state in In re O. H. Bengtson, 230 Or 369, 371, 370 P2d 239 (1962), that our policy was to order disbarment of attorneys who took the money of others. However, subsequently, in In re James H. Lewelling, 244 Or 282, 417 P2d 1019 (1966), and In re Sundstrom, 250 Or 404, 442 P2d 604 (1968), in which the accuseds took clients' funds, the discipline ordered was suspension rather than disbarment. In neither of the latter cases were the defalcations as calculated  [***2]  and inexcusable as those in the Bengtson case.

In the Lewelling and Sundstrom cases we recognized that if the accused was rehabilitated from whatever condition brought on his culpable conduct the public would not be harmed by permitting him to again practice law. If the public would not be harmed by an accused resuming the practice of law he should be permitted to resume practice. The discipline of members of the bar is for the protection of the public, not solely for the punishment of culpable attorneys.

If it appears likely that a disciplined attorney may become rehabilitated within a few years and, therefore, should be permitted to resume the practice of law, suspension and not disbarment is the appropriate discipline.

 [*180]  We have generally accepted the policy that reinstatement after disbarment should almost never occur.
"* * * We recognize that disbarment does not preclude reinstatement, but we believe that reinstatement should be allowed only in very exceptional cases. We endorse the thought expressed in Drinker on Legal Ethics (1953) at page 49, as follows:

"'* * * While it is, of course, always possible that a disbarred lawyer may be reinstated,  [***3]  this, it is believed, should almost never occur except where the court concludes that the disbarment was erroneous. For a lawyer who has been found guilty of an act warranting disbarment to be reinstated justly creates an impression on the public which is very bad for the reputation of the bar, the conclusion being that this is because of friendship, pity, or political influence; which is not infrequently the case. * * *.'" In re Koken, 214 Or 357, 360-361, 329 P2d 894 (1958).

The authority on legal ethics, Henry S. Drinker, stated:
"Ordinarily the occasion for disbarment should be the demonstration, by a continued course of conduct, of an attitude wholly inconsistent with the recognition of proper professional standards. Unless it is clear that the lawyer will never be one who should be at the bar, suspension is preferable. For isolated acts, censure, private or public, is more appropriate. Only where a single offense is of so grave a nature as to be impossible to a respectable lawyer, such as deliberate embezzlement, bribery of a juror or court official, or the like, should suspension or disbarment be imposed. Even here the lawyer should be given the benefit  [***4]  of every doubt, particularly where he has a professional record and reputation free from offenses like that charged. Similarly, such extreme measures should be invoked  [*181]  only in case of fairly recent offenses, proof in refutation of which would be reasonably available to respondent, except, of course, in cases where he was shown to have actively concealed them. Just as a lawyer who has been habitually dishonest will almost certainly revert to his low professional standards when necessity, temptation, and occasion recur, so one has been consistently straight and upright can properly be trusted not to repeat an isolated offense unless of such a nature as of itself to demonstrate a basically depraved character." Drinker, Legal Ethics, 46-47 (1953).

We are not changing our policy that disbarment is the proper discipline in  [**549]  instances of planned, rational defalcations where the odds against true rehabilitation are so great that the likelihood of reinstatement is minimal.

In the instant case the accused has not been drinking for about two and one-half years and the evidence indicates that the chances are good that he will continue to abstain. On the other  [***5]  hand, the medical testimony was that if the accused had a drink or two tomorrow he would be back in the same pattern that caused his trouble. We believe that a sufficient time should elapse during which it can be learned whether the accused can continue to abstain.

For these reasons the judgment of disbarment is withdrawn and the order of this court is that the accused is suspended from the practice of law for a period of three years and thereafter until he shall affirmatively show that he is in all respects again able and qualified to resume his position as a member of the bar of this state and that his resumption of the practice of law will not be detrimental to the bar or to the public interest.

Petition denied; former opinion modified.
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