In re the Matter of the Application of Donald D. NASH for Reinstatement as an
Active Member of the Oregon State Bar
SC No. S30865
SUPREME COURT OF OREGON
317 Ore. 354;
855 P.2d 1112;
1993 Ore. LEXIS 117
May 5, 1993, Argued and submitted
August 5, 1993, Decided
August 5, 1993, Filed
PRIOR HISTORY:
[***1]
Review of decision of the Trial Panel of the Disciplinary Board.
DISPOSITION: Reinstatement denied.
COUNSEL: Phillip M. Margolin, of Margolin
& Margolin, Portland, argued the cause for Donald D. Nash. With him on the
brief was Robert K. Udziela, of Pozzi, Wilson, Atchison, O'Leary
& Conboy, Portland.
Mary Anne Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause
for the Oregon State Bar. With her on the brief was Michael J. Gentry,
Portland.
JUDGES: In Banc.
OPINIONBY: PER CURIAM
OPINION:
[*356]
[**1112] Donald D. Nash (the applicant) was admitted to the Oregon State Bar (Bar) in
1972. He was disbarred in 1985, on his conviction of sodomy in the first
degree, a Class A felony. ORS 163.405.
In re Nash, 299 Or 310, 702 P2d 399 (1985).
[**1113] In 1990, the applicant applied for
reinstatement as an active member of the Oregon State Bar. The Board of Governors denied
his application.
In 1991, the applicant filed a petition to review the Board of Governors'
adverse
recommendation. Bar Rule of Procedure (BR) 8.8. n1 This court referred the matter to the
Disciplinary Board to inquire into the applicant's
moral character and general
fitness to practice law. The
[***2] Bar filed a statement of objections to the application for
reinstatement.
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n1 BR 8.8 provides:
"Not later than 28 days after the Bar files an adverse
recommendation regarding the applicant with the court, an applicant who desires to contest
the Board's
recommendation shall file with Disciplinary Counsel and the State Court Administrator a
petition stating in substance that the applicant desires to have the 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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A
Disciplinary Board trial panel held a hearing in 1991. The hearing was continued
"so that the applicant could obtain a current,
[***3] thorough evaluation from a psychologist, and the Bar could have its experts
analyze the test results and report."
Thereafter, the trial panel denied
reinstatement. The applicant now seeks reversal of the trial panel's decision. This court
reviews
de novo. BR 10.6. n2 For the reasons that follow, we deny
reinstatement.
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n2 BR 10.6 provides in part:
"The court shall consider each matter
de novo upon the record and may adopt, modify or reject the decision of the trial
panel or the BBX in whole or in part and thereupon enter an appropriate order."
See ORS 9.536(3) (same); ORS 9.539 (the Supreme Court shall review the decisions
of the
disciplinary board in
reinstatement proceedings).
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The
acts of sodomy resulting in the applicant's
disbarment took place between 1982 and 1984. The victim
[*357] eventually reported the applicant's
misconduct to her mother. The applicant pleaded guilty and was placed on five years'
probation. In
In re Nash, supra, 299 Or at 312,
[***4] this court stated:
"The
acts of sodomy involved a six-year-old child who was the daughter of a former client of the
accused. We perceive no purpose to place upon the public record either the
details of the sordid acts committed by the accused or a description of the
prolonged and deep-rooted
psychological problems from which the accused suffers."
The following rules govern the
reinstatement procedure:
BR 8.1(b) provides in part:
"Each applicant [for
reinstatement] under this rule must show that the applicant has
good moral character and general
fitness to practice law and that the resumption of the
practice of law in this state by the applicant will not be
detrimental to the administration of justice or the
public interest."
BR 8.12 provides:
"An applicant for
reinstatement to the
practice of law in Oregon shall have the burden of establishing by
clear and
convincing evidence that the applicant has the
requisite
good moral character and general
fitness to practice law and that the applicant's resumption of the
practice of law in this state will not be
detrimental to the administration of justice or the
public interest."
"Clear and convincing evidence means that
[***5] the truth of the facts asserted is highly probable."
In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985), quoting
Supove et al v. Densmoor et ux, 225 Or 365, 372, 358 P2d 510 (1961). BR 8.13 provides:
"While an applicant for
reinstatement has the ultimate burden of proof to establish
good moral character and general
fitness to practice law, the Bar shall initially have the burden of producing evidence in support of
its position that the applicant should not be readmitted to the
practice of law."
[**1114]
The only evidence presented to the trial panel came from four
mental health professionals, who
either had treated the applicant or had reviewed his history, and from his
former probation officer. The applicant did not testify.
[*358] Evidence presented to the trial panel at the first hearing in 1991 showed
that, after his arrest in 1984, the applicant consulted Dr. Weinstein, a
psychiatrist, who treated him for about a year and a half for
"depression." Weinstein testified that he believed that the applicant's
sex crimes were a secondary manifestation of
depression. Weinstein also testified
[***6] that, because he did not find that the applicant was aroused during his
sex acts with the child, he did not believe that the applicant suffered from
pedophilia. Weinstein conceded, however, that he had not treated many
pedophiles and that, in fact, he does not believe that psycho therapy is
particularly helpful to pedophiles. He also conceded that, although he knew
that the applicant was being treated concurrently by other
mental health professionals, he had not compared notes with any other persons to determine
whether any of them shared his opinion that the applicant
suffered only from
"depression," rather than from a sexual disorder. In December 1984, after he had been
treating the applicant for less than six months, Weinstein wrote a letter to
the court stating that he saw no reason why the applicant should not be
permitted to resume the
practice of law.
From mid-1984 to mid-1985, the applicant also received treatment from Mr.
Jensen, a therapist. At the hearing, Jensen testified that, during the course
of treatment, the applicant reduced his sexual responses to stimuli involving
female children from high to low.
Dr. McGovern, a clinical psychologist, evaluated the applicant
[***7] in 1984 and made treatment
recommendations to the sentencing court.
The applicant's former probation officer testified that the applicant had been
a very compliant probationer and that she had recommended early termination of
his criminal probation.
At the close of the evidence, members of the trial panel expressed reservations
about making a decision based on opinions
about the applicant's
mental health as of 1985. Accordingly, the hearing was recessed to allow the applicant to
undergo a current
psychological assessment.
[*359] In 1992, the trial panel reconvened and received new testimony from McGovern,
who had reevaluated the applicant. The reevaluation included
psychological, physiological, and polygraph examinations. McGovern opined that the applicant
presently does not have a propensity to engage in deviant behavior. He recommended,
however, that as a
"safety valve" the applicant should intermittently meet with a psychiatrist to ensure that he
is
coping effectively with his
depression.
Mr. Wolfe, another
mental health professional, also reviewed the new data at the request of the Bar and gave an
opinion. He cautioned that, if the applicant were reinstated to the Bar,
[***8] certain restrictions on his practice would be appropriate in order to prevent
the applicant from having contact with, or any power or authority over,
children.
After reviewing the current data, Jensen opined that he had concerns about
certain answers given by the applicant indicating that the
applicant believed that his victim usually enjoyed the
sex act and that he had not engaged in
"grooming" to set up his victim. n3 Jensen also expressed concerns that the applicant had
no relapse or prevention plan or new
coping strategies should he experience difficulties in the future, that the applicant
is currently married to someone 20 years his junior who is unlikely to be at
his maturity level, and that the applicant's current level of sexual activity
indicates
[**1115] that he still is overemphasizing
sex. Jensen also felt that, if the applicant were reinstated, restrictions should
be imposed on the applicant's practice, including: that his practice not
involve female juveniles; that there be periodic checkups; and that his wife be
involved in his ongoing
rehabilitation.
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n3 As used in the context of child sexual abuse, the term
"grooming" has been described as
"a lot of gift giving, a lot of affection, praising, rewards, anything to make
the individual more
comfortable even to the extent of dealing with lots of people
surrounding this particular person, just getting into a
comfortable role; in other words, feeling
comfortable and being close to an individual. Yes, they often establish some emotional
dependency."
State v. Hansen, 304 Or 169, 174, 743 P2d 157 (1987).
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[***9]
Each of the
mental health professionals concluded that the applicant had made significant progress in
coping
[*360] with his problems. None of them, however, had had any extensive contact with
the applicant for over five years.
The trial panel found that the applicant has the required general
fitness to practice law. Further, the panel concluded that the applicant meets the requirement of
good moral character
"at the present time." Finally, the panel concluded that the applicant had not established by
clear and convincing evidence that his present
good moral character will continue indefinitely into the future. n4 The trial panel concluded that
the applicant's
reinstatement would be
detrimental to both the administration of
justice and the
public interest. The panel unanimously denied
reinstatement.
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n4 The trial panel found:
"[A]ll of the experts testified at the second hearing that, although not
probable, it is possible that the applicant might again commit sexual
misconduct with a young girl in the future, particularly if he is faced with major stress."
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[***10]
Before this court, the applicant contends that the trial panel erred in
imposing a requirement that he prove that his present
good moral character will continue
in the future. He argues that requiring an applicant to demonstrate that present
good moral character will continue in the future violates the Due Process Clause of the
Constitution of the United States. n5 The Bar responds that the applicant has
not proved by
clear and convincing evidence that he now has the
requisite
good moral character and that the trial panel erred in determining that the applicant
presently has
good moral character. The Bar stresses that, not only did the applicant not testify as to why this
court should grant his application for
reinstatement, but also that no person who
presently lives or works with the applicant was called as a witness to provide the trial
panel with a current
appraisal of his
moral character. n6 The Bar asks this court to deny
reinstatement.
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n5 The Fourteenth Amendment provides in part:
"[N]or shall any State deprive any person of life, liberty, or property, without
due process of law[.]"
[***11]
n6 In reviewing the evidence provided by applicants for admission or
reinstatement to the Bar, the court has considered such
appraisals to be significant.
See, e.g.,
In re Rowell, 305 Or 584, 754 P2d 905 (1988) (letters of reference comparing the applicant's past and present character considered favorably);
In re Gimbel, 271 Or 671, 674-75, 533 P2d 810 (1975) (testimony from community members as to the applicant's
good moral character given weight);
In re Bernard Jolles, 235 Or 262, 275, 383 P2d 388 (1963) ("Generally, proof [of
good moral character] must be made through the
appraisal of those with whom the petitioner has worked and lived and who are in a
position to see how he makes choices calling for moral decisions.");
see also
In re McKee, 316 Or 114, 132, 849 P2d 509 (1993) (testimony from community members as to the accused's character and reputation
taken into consideration as a mitigating factor in determining
appropriate discipline);
In re Gortmaker, 308 Or 482, 492-93, 782 P2d 421 (1989) (evidence from members of legal community expressing opinion that the
applicant was not of
good moral character considered, and
reinstatement denied).
Additional indicia evidencing
a change in an applicant's
moral character are such things as participating in activities for the public good, statements
of regret for past actions,
letters of reference, religious affiliation, and other tangible evidence that provide this court
with sufficient information to determine confidently that an applicant
presently is of
good moral character.
In re Rowell, supra, 305 Or at 590;
In re Bevans, 294 Or 248, 252, 655 P2d 573 (1982).
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[***12]
[*361] The dispositive issue in this case is whether the applicant has established
good moral character by
clear and convincing evidence. n7 This court reviews all
reinstatement
[**1116] matters
de novo on the record and may adopt, modify, or reject the trial panel's decision. BR
10.2; BR 10.6.
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n7 In the context of admission to the Bar, ORS 9.220 provides that a lack of
good moral character
"may be established by reference to acts or conduct that reflect
moral turpitude or to acts or conduct which would cause a reasonable person to have
substantial doubts about the individual's honesty, fairness and respect for the
rights of others and for the laws of the state and nation. The conduct or acts
in question should be rationally connected to the applicant's
fitness to practice law."
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Although
reinstatement after a
suspension is a relatively common occurrence,
reinstatement after
disbarment is uncommon in the legal profession, and not even possible in some
jurisdictions.
See
In re Warner W. Gregg, 252 Or 174, 179, 448 P2d 547 (1968)
[***13] ("If it appears likely that a disciplined lawyer 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.");
see also
In re Koken, 214 Or 357, 361, 329 P2d 894 (1958) (strong proof of
good moral character is required to restore a disbarred lawyer to the Bar). In
In re Koken, supra, this court addressed the issue of
reinstatement after
disbarment:
"[The applicant] asserts that 'good moral character can only be defined as absence of proven conduct or acts which have been
historically considered as manifestations of
moral turpitude.' But we thin[k] that it is our duty to apply a stricter test of
rehabilitation. It is possible that if we were to restore the petitioner to his former
position in this bar he would
[*362] never again violate his public trust, but we would not discharge our
obligation to the community if we should rest our decision in this case upon
that conjecture. We are entitled to have a reasonable
assurance that the
misconduct which brought the petitioner
[***14] before this court once before will not
reoccur. We recognize that
disbarment does not preclude
reinstatement, but we believe that
reinstatement should be
allowed only in very exceptional cases."
214 Or at 360.
The applicant does not argue that his
disbarment was erroneous. Instead, he argues that the Bar has not shown that he has
engaged in new acts of
misconduct after his
disbarment in 1985. He argues further that the trial panel's finding that he
presently has
good moral character demonstrates that he has satisfied the criteria of BR 8.12.
We find unacceptable the trial panel's distinction that the applicant has
demonstrated present
good moral character but that he has not demonstrated that his present
good moral character will continue. Good
moral character is one question, not two. The determination of
good moral character is not based solely on an absence of present
moral turpitude, but also on whether there is
"a reasonable
assurance that the
misconduct which brought petitioner before this court once before will not
reoccur."
In re Koken, supra, 214 Or at 360.
The question before this
[***15]
court is not just whether the applicant has successfully passed a
psychological test that indicates that he is not a present danger to the community. n8 The
question is whether
in all respects he is a person who possesses
"the sense of ethical responsibility and the maturity of character to withstand
the many temptations which [he] will confront in the
practice of law."
In re Taylor, 293 Or 285, 296, 647 P2d 462 (1982). The applicant has not presented the court with an answer to that question.
Without such an answer, this court is left only with doubt as to the
consequence of
reinstatement. Such doubt must be resolved in favor of protection of the public.
Id.
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n8 The applicant has placed great emphasis on the fact that Dr. Weinstein did
not diagnose his condition as pedophilia. That emphasis is misplaced. In this
context,
good moral character is a legal term of art that is not dependent on any particular medical
diagnosis.
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[*363] We consider it significant
[***16] that the
applicant did not testify at the hearing and, thus, the trial panel was denied
the opportunity to assess his demeanor. Nor was the Bar able to test the bona
fides of the applicant's claim of
rehabilitation by cross-examination.
The cases on which the applicant relies for the proposition that the
determination of
moral character is frozen in time at the
"present" do not discuss present, as opposed to future,
good moral character. Rather, those cases focus on the distinction
[**1117] between present and past
moral character.
See
In re Jaffee, 311 Or 159, 163, 806 P2d 685 (1991) (in admission proceeding, applicant had burden to demonstrate that his
moral character had changed sufficiently that he should be admitted to the
practice of law);
In re Rowell, 305 Or 584, 588, 754 P2d 905 (1988) (same). Those cases do not stand for the proposition that, in making a
determination whether an applicant possesses the
requisite
good moral character
for
reinstatement to the Bar, this court may not consider the potential for future
misconduct.
The trial panel expressed doubts about whether the
[***17] applicant could be trusted in the future. Clearly, the trial panel had
serious reservations about whether the applicant would repeat his former
criminal conduct. If someone cannot be trusted to refrain from sexually
molesting children in the future, then, by definition, that person does not
have
good moral character
now. On
de novo review, we share the trial panel's concern that the applicant may engage in
future
misconduct.
The
mental health professionals on whose testimony the applicant relies for his showing of
good moral character did not provide this court with
"reasonable
assurance[s] that the
misconduct which brought [the applicant] before this court once before will not
reoccur."
In re Koken, supra, 214 Or at 360. The applicant relied entirely on the testimony of those experts to establish
his
good moral character. After reviewing the most recent assessment, however, each of those
professionals suggested that, in order to reduce the chance of the applicant's
problems resurfacing, certain restrictions on the applicant's practice would be
appropriate. It is clear that the professionals did not endorse those
restrictions
[***18] because of any specific distrust of the applicant but, rather, because such
[*364] limitations are considered wise in all cases involving the type of problem
which resulted in the applicant's
disbarment. All suggested some form of ongoing monitoring of the applicant's
psychological health, and two of them advised limiting the applicant's practice in order to
prevent him from coming into contact with children.
We also note that the applicant's previous problems apparently did not arise in
the context of working with juvenile clients; his earlier victim was the child
of an adult client. Restricting a lawyer to representing clients who have no
children is not realistic; nor is the Bar in any position to supervise such
limitations on a lawyer's practice. Moreover, it is not clear that the
Rules of Procedure authorize any such permanent limitations or supervision.
See BR 6.2 (authorizing imposition of probationary terms for suspended lawyers,
not to exceed three years in duration). Aside from the practical difficulties
in policing such limitations on a lawyer's practice, we are not persuaded of
the wisdom of endorsing such limitations.
The applicant argues that denial of
reinstatement
[***19] denies him due process. The United States Supreme Court has held that a state
"cannot exclude a person from the
practice of law or from any other occupation in a manner or for reasons that contravene the
Due Process or Equal Protection Clauses of the Fourteenth Amendment."
Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S Ct 752, 1 L Ed 2d 796 (1957). We see no basis for any claim that the requirement of proof by
clear and convincing
evidence of
good moral character for
reinstatement after
disbarment would violate the Due Process Clause of the federal constitution as a
substantive matter. n9 The cases on which the applicant relies involve
procedural due process. He does not explain, however, how he has been denied
procedural due process, and we see no basis for so holding. We are unable to conclude
that the applicant has been denied due process.
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n9
See
Koingsberg v. State Bar of California, 366 U.S. 36, 41, 81 S Ct 997, 6 L Ed 2d 105 (1961) (the requirement that applicant for admission to practice law must prove
"good moral character" approved).
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[***20]
We hold that the applicant has not established by
clear and convincing evidence that he possesses the
good
[*365] moral character
[**1118]
requisite to
reinstatement in the Oregon State Bar.
Reinstatement, therefore, is denied.
