|252 Ore. 174, *; 448 P.2d 547, **; |
1968 Ore. LEXIS 734, ***
In re Complaint as to the Conduct of WARNER W. GREGG, Accused
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF OREGON
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.
OPINIONBY: PER CURIAM
[**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
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,
"'* * * 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
[*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
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.
denied; former opinion modified.
||252 OR 174
||Wednesday, March 18, 1998 - 11:19 PM EST
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