In re Complaint as to the Conduct of DALE W.
SC No. 25367
SUPREME COURT OF OREGON
280 Ore. 513;
571 P.2d 907;
1977 Ore. LEXIS 732
October 25, 1977, Submitted on record
November 29, 1977
Review of the findings of fact, conclusions of law and recommendations of the
Trial Board and the Disciplinary Review Board of the Oregon State Bar. No.
DISPOSITION: Accused permanently disbarred.
JUDGES: In Banc.
OPINIONBY: PER CURIAM
[**907] In this disciplinary proceeding the accused is charged with converting to his
own use funds of his client, Elissondoberry, which had been entrusted to him as
attorney for the estate of Elissondoberry's
deceased daughter, Wolf. The accused answered, denying the charges. The Trial Board
found the charge was true and, with some
disbarment. The Disciplinary Review Board, without such
reservations, concurred in the
disbarment. Having reviewed the record made before the Trial Board, we accept the
recommendation that the accused be
Following Wolf's death in November 1975, Elissondoberry, as named beneficiary,
became entitled to receive some $ 56,000 under three insurance policies on the
life of Wolf. Shortly thereafter, the accused was retained both to act as
attorney for the estate of Wolf and, as an adjunct thereto, to prepare a
[***2] placing the insurance proceeds in trust for the benefit of Wolf's two minor
children. In April 1976 Elissondoberry endorsed and delivered to the accused
checks from the life insurance companies for $ 56,000 plus. Elissondoberry and
sister understood from the accused that he would hold the money in a
"trust account" pending drafting and execution of the
Although the accused and his law partner had an office clients'
trust account, the accused
deposited the $ 56,000 in what the
[**908] Trial Board described as
trust account" maintained at a branch of the United States National Bank of Oregon (USNB).
The funds in the USNB account were totally under the control of the accused,
personally executed the checks drawn thereon and kept the records of that account rather
than having his office bookkeeper do so, as in the case of the law office
[*516] The accused maintained yet another checking account at an office of Western
Security Bank (WSB), in which funds of his clients named Erwert were kept.
This account was under the sole control of the accused, who
personally kept the records thereof.
On or about May 26, 1976,
[***3] the accused
drew five checks on the WSB account payable to the Internal Revenue Service,
totaling some $ 11,000, to be credited to the tax accounts of clients Erwert.
On June 4, 1976, an overdraft of approximately $ 8,000 was charged on the WSB
About three days later the accused
drew a check for $ 14,500 on the USNB account and
deposited that sum in the WSB account. He had no authority from Elissondoberry or
sister to do so. He conceded before the Trial Board that the transfer of funds from
one account to the other did not have
"any purpose with regard to the
handling of the estate of Toni Wolf, or the funds of, as have been described of
Elizabeth M. Elissondoberry, for the benefit of the children of Toni Wolf,
Deceased." Neither Elissondoberry nor Wolf's
sister had ever authorized the withdrawal of the $ 14,500.
In midsummer, 1976, Elissondoberry was contacted by an I.R.S. agent, who
inquired whether she had loaned funds to the accused. In the agent's presence,
Elissondoberry telephoned the accused and asked him whether he had borrowed
some of her funds from the
trust account. He advised her he had, that he would repay them, and requested that she inform
[***4] agent that she had authorized the borrowing. Elissondoberry equivocated with
the agent concerning authorization because she felt the agent was not being
open and frank with her.
On August 9, 1976, after Elissondoberry had made a complaint to the Oregon
State Bar and after a substitution of attorneys had been arranged in the matter
of the Wolf estate, the accused
deposited $ 14,542.13 of his own funds in the USNB account and,
[*517] with a check drawn thereon, purchased a cashier's check and delivered it to
Elissondoberry and her new attorney. By the cashier's check
full restitution was made to Elissondoberry.
The accused was called as a witness by the Bar and objected on the grounds of
relevancy to questions concerning the type of matter he was
handling for the Erwerts and his reason for the transfer of the money from the USNB
account to the WSB account. There was no ruling on the objection to the first
question, and the objection to the second question was overruled. The accused
then refused to answer
"on the grounds that the answer might tend to incriminate me." He then made the concession noted earlier that the transfer had no relation to
the Wolf estate or children's
[***5] trust purposes.
The charge that the accused converted to his
own use the funds of his client Elissondoberry has been established.
The Trial Board's
reservations concerning the
disbarment as opposed to
suspension were as follows:
"* * * [T]he Trial Board would have given serious consideration to a
suspension were it
convinced that the charge against the accused was an isolated transaction; however, the
Trial Board was
convinced that the trust funds from one
trust account were appropriated to make up a deficiency in another
trust account which was a
pattern of misconduct * * *."
An inference could be drawn that such
pattern of misconduct" existed; however, for the purpose of this opinion we assume that the evidence
does not establish such a pattern.
This is of no avail to the accused, however, in light of the history in this
disbarment of lawyers,
qua lawyers, n1 who convert to their
own use money of
[*518] their clients.
In re Bach, 273 Or 24, 539 P2d 1075 (1975);
In re Dugan, 272 Or 708, 538 P2d 938 (1975);
In re Celia L. Gavin, 230 Or 187, 369 P2d 133 (1962); and
In re Chester R. Sloniger, 224 Or 276, 355 P2d 975 (1960). It is true that in each of those cases the lawyer was accused and found guilty
of more than one charge of
misappropriation of funds, while the accused in the instant case is found guilty of only one
conversion. We have no reason to believe, however, that any member of the Bar of this
state has been led by those decisions to consider or presume that a single
misappropriation of a client's funds will be tolerated. If any member entertains such a
conception, let his mind be hereby disabused thereof. We hold that a single
conversion by a lawyer to his
own use of his client's funds will result in
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n1 Where an attorney at law has misused the funds of someone other than a
client, we have not always ordered
See, for example,
In re Kenneth W. Stodd, 279 Or 565, 568 P2d 665 (1977), and
In re Gregg, 252 Or 174, 446 P2d 123, 448 P2d 547 (1968). The wisdom of the distinction may be open to question. Such acts may in the
future not be treated so leniently.
In re John W. Pennington, 220 Or 343, 348 P2d 774 (1960).
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We have acted with complete awareness that
full restitution has been made, but that cannot alter the result.
In re Albright, 274 Or 815, 549 P2d 527 (1976);
In re George C. Staples, 259 Or 406, 486 P2d 1281 (1971); and
In re C.E. Wheelock, 233 Or 236, 377 P2d 858 (1963), for the proposition generally that discipline should not be dependent upon the
lawyer's financial ability to rectify the results of his unethical conduct.
The accused here has been a member of the Bar for more than a quarter of a
century. What led him to commit this wrongful act is unknown to us. He gave
no explanation, and the evidence otherwise would serve only as a basis for
speculation as to his motivation.
The conduct of the accused was unethical and in violation of the standards of
professional conduct established by law and by the Bar and was such conduct
that, if he were now applying for admission to
[*519] the Oregon State Bar, his application should be denied. Our duty is clear.
We determine that the accused be
disbarred from the practice of law in this state.
It is so ordered.