In the Matter of the Application of DARRIS K.
ROWELL For Admission to the Oregon State Bar
SC No. S34148
SUPREME COURT OF OREGON
305 Ore. 584;
754 P.2d 905;
1988 Ore. LEXIS 237
December 2, 1987, Argued and submitted
May 3, 1988
PRIOR HISTORY:
[***1]
Review of the recommendation of the Oregon State Board of Bar Examiners.
DISPOSITION: Applicant's application for admission to the Oregon State Bar is allowed.
COUNSEL: Richard M. Walsh, Portland, argued the cause and filed the briefs on behalf of
Darris K. Rowell. With him on the briefs was Schouboe, Marvin
& Furniss, Portland.
Teresa J. Schmid, Assistant General Counsel, Lake Oswego, argued the cause and
filed the brief on behalf of the Oregon State Bar.
JUDGES: Peterson, Chief Justice, and Lent, Campbell, Carson, Jones and Gillette,
Justices.
OPINIONBY: PER CURIAM
OPINION:
[*586]
[**906] The issue in this case is whether Darris Rowell (applicant), a 1986 graduate
of the University of Oregon School of Law who has applied for admission to the
Oregon State Bar, has the requisite
good moral character for admission to the Bar. The issue turns on the present significance of
applicant's criminal history. We admit the applicant.
Applicant passed the Oregon Bar Examination in July 1986, and the Multistate
Professional Responsibility Examination in August 1986. On his application for
Bar membership, applicant stated that he had been convicted of crimes. As a
result, applicant appeared at a hearing before the Board of Bar Examiners (the
[***2] Board) on January 2, 1987. On January 30, 1987, a majority of the Board
concluded that it could not
recommend that applicant be admitted to the Oregon State Bar. On May 8, 1987, the Board
agreed to review its decision. The Board, on reconsideration, split 7-7 as to
whether to
recommend applicant's
admission. Because a majority of the Board is needed to
recommend admission, n1 the Board, in a written opinion,
recommended against applicant's admission. The seven members favoring applicant's
admission issued a separate minority opinion.
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n1 Rules for Admission of Attorneys 1.55.
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The Board
recommended against applicant's admission because seven of its members felt that applicant
had not satisfactorily shown that he is of
good moral character as required by ORS 9.220(2)(a). The seven found that the number of
applicant's criminal offenses, including activities which applicant admitted
but for which he was not charged, the seriousness of those offenses,
applicant's repeated violations of
probation, the fact that the
[***3] offenses were relatively recent, applicant's history of substance abuse and
what the seven viewed as his lack of
candor with his present employer compelled the conclusion that applicant had not
proven that he is
presently of
good moral character.
FACTS
There is but one version of facts in this case -- the only evidence of what
applicant's conduct has been is that
[*587] offered by applicant. The Board has produced no other evidence of applicant's
conduct and has based its case on an interpretation of the facts admitted by
applicant that differs from the interpretation offered by applicant.
At some time in the mid-1970s, applicant, then a teenager, started to
smoke
marijuana. By January 1976, while he was a college student in North Carolina, applicant
was selling
marijuana as well as using it. He was
arrested and charged with possession of
marijuana with intent to sell. He
[**907]
pleaded guilty and was sentenced to six months in jail and three and a half years on
probation. He was released after serving about five months. In early 1977, applicant was
arrested after he broke a glass door in the Student Union at his college. He was under
the
influence of alcohol at the time. He
[***4]
pleaded no contest to a charge of injury to real property and was discharged in
return for paying restitution and performing community service.
Applicant sold
marijuana and amphetamines on a regular basis from July 1977, to September 1977. In
September, while intoxicated, he entered an unlocked car and went to sleep on
the seat. The owner of the car called the police who
arrested and searched applicant.
Hashish and a white powder were found. Applicant was charged with possession of
hashish, possession of
cocaine (the powder was apparently not
cocaine but amphetamine) and breaking and entering a vehicle. Possession of a
controlled substance was a violation of the conditions of his
probation.
Applicant posted bail on the new charges and then left North Carolina for
Oregon, in violation of the conditions of his
probation and the conditions of his bond. After he had been in Oregon for six months,
he was stopped by the police and his identification was
checked. The circumstances of the stop and arrest are irrelevant to
applicant's
moral character either at the time of the arrest or at the present. The check revealed
applicant's fugitive status and he was
arrested. He posted
[***5] bond and returned to North Carolina without any escort. He voluntarily
surrendered to the North Carolina authorities and pleaded no contest to the
1977 charges. One charge was reduced from a felony to a misdemeanor and
charges for violation of the conditions of his
probation and
[*588] bond were dropped. Applicant was sentenced to two years
probation and was permitted to serve the
probation in Oregon.
Applicant returned to Oregon in July 1978. He states that he has not sold
drugs since that time. He continued to
smoke
marijuana and occasionally use other drugs. Applicant attended the University of Oregon
and was graduated in 1981. Shortly before graduation his wife left him, and he
began drinking heavily. On a day in September 1981, while still
under the
influence of alcohol and
cocaine that he had consumed the previous night, applicant drove his car off the road.
The police arrived and discovered that applicant was in possession of some
cocaine. Applicant was charged with and
pleaded guilty to possession of the
cocaine. He was placed on thirty months
probation and participated in an alcohol rehabilitation program. Applicant states that
he has not used
cocaine since
[***6] that time and has apparently been in control of his
drinking problem. He did continue to
smoke
marijuana.
Applicant entered
law school in 1983. He continued to
smoke
marijuana until February 1984, when he states that he finally quit. The use of
marijuana was in violation of his
probation and applicant had violated the conditions of every
probation by his continued
marijuana use.
While in
law school, applicant was married. He was active in academic, official and student
activities. He received a passing score on the Bar exam and has since obtained
employment with the Nevada
Public Service Commission.
EVIDENCE OF CURRENT GOOD CHARACTER
Applicant concedes that his past conduct, especially his conduct from 1976 to
1978, shows that he did not at that time possess the
good moral character necessary to his admission as a lawyer. The question is therefore whether
applicant's
moral character has changed sufficiently that he should be admitted to the practice of law.
See
In re Fine, 303 Or 314, 736 P2d 183 (1987). Applicant must prove by clear and
convincing evidence that he is of
good moral character. n2
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n2 BR 7.5.
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[***7]
Applicant claims that the decrease in drug and
alcohol use, the letters of recommendation sent to the Bar on his
[*589] behalf, his admission of and
regret for his past mistakes and his participation in activities for the
public good are evidence
[**908] that he is
presently of
good moral character.
1. Decreasing Drug Use
Applicant states, and we find, that he has not used any illegal
substance for the last four years. Applicant has not used any illegal
substance other than
marijuana for the last six years. He has not sold an illegal substance for the last 10
years. In sum, applicant showed a decreasing participation in activities
involving illegal substances over a six-year period, followed by four years of
abstaining from any such activity at all. As to this issue, applicant's
history establishes that he has now reached a level of maturity such that his
moral character is
presently satisfactory for admission.
2. Decreasing
Alcohol Use
Many of the events that demonstrate applicant's former
bad character involved alcohol abuse. Applicant appears to be currently in control of his
drinking problem and has been in control for seven years. Without further evidence, we do not
accept
[***8] -- as the Board accepted and argued to this court -- that occasional
social drinking
establishes that applicant is not currently in control of his problems in this
area.
3.
Candor
Applicant has been
candid with the Bar in admitting his past convictions and past behavior and
activities. Most of the evidence of applicant's prior
bad character was supplied by applicant's own statements and probably would not have been
discovered if it were not for applicant's
candor. The Board nonetheless questions applicant's
candor for two reasons.
First, the Board claims that applicant is not being
candid about his
drinking problem because the Board does not accept the proposition that a person who has had a
drinking problem can thereafter successfully reduce his
alcohol use and become a social drinker. Without taking a position on the theoretical
medical debate on this issue -- partly because the precise nature of
applicant's
"problem," which could be psychological addiction, physiological addiction, or something
else, is not shown on this record -- we find that applicant's
seven years of
social drinking without apparent loss of control
[*590] is sufficient evidence that applicant is being
[***9]
candid (and accurate) when he states that drinking is not currently a problem in his
life.
The Board also noted that applicant did not advise his present employer about
his prior convictions. The evidence is that applicant has admitted the
convictions in an employment
interview situation when the subject was raised. The present employer did not ask any
question that would elicit a statement about prior convictions or drug use.
There is no suggestion that applicant would not have been forthcoming, had the
matter appeared to be pertinent. We do not find that applicant's failure to
mention past convictions in that employment
interview is evidence of bad
moral character when the subject was neither directly nor indirectly raised at the
interview.
4.
Letters of Reference
Applicant offered several
letters of reference to the Bar from people who have known him in various capacities. Two of the
letters state
matters of significance. One was written by Robert J. Huckleberry, who is
currently a district court judge and who represented applicant in his 1981
criminal case. Judge Huckleberry states that applicant has done
"a complete 180." This statement from someone who knew applicant
[***10] when he was still getting in trouble is important. Unlike most persons who
provide references based solely on present knowledge, n3 this judge is able to
compare the applicant's previous and present character and note whether there
indeed has been a change. He is
convinced that a positive change has taken place.
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n3
See
In re Fine, 303 Or 314, 319, 736 P2d 183 (1987);
In re Bernard Jolles, 235 Or 262, 275, 383 P2d 388 (1963).
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Another letter was written by a law professor, who is applicant's
father-in-law. This
writer noted an improvement in applicant's attitude even since the beginning of
law school. This is further evidence that there has been a change in applicant's character
and that the change is continuing.
[**909] This professor also mentions that applicant has gone through extremely
stressful situations in
law school and after graduation without resort to drugs or alcohol.
[*591] 5.
Regret for Past Actions
Applicant states that he considers that
[***11] his past drug related activities, especially the sale of drugs, were wrong and
that he
regrets such activity. Although it is impossible to test absolutely the sincerity of
such statements, the fact that the statements were made is of some importance.
Cf.
In re Easton, 289 Or 99, 103, 610 P2d 270 (1980) (applicant's failure to appreciate the moral and legal consequences of his
actions was the most persuasive evidence of lack of reformation). The
continuous lowering of the level of applicant's involvement with illegal drugs
from 1978 through complete abandonment after
1984 is evidence that applicant's attitude toward drugs has changed.
6. Participation in Activities for the
Public Good
In
law school, applicant was active in both academic and non-academic activities. Most
notably, he volunteered his time to act as an advocate in two cases before the
Associated Students of the University of Oregon Constitutional Court. His
participation in each case appeared to be motivated by a desire to protect and
further important legal principles.
PASSAGE OF TIME
Each of these facts provides some evidence that applicant is
presently of
good moral character.
[***12] The difficult question is whether sufficient time has passed since applicant's
most recent
unacceptable conduct for this court to be
convinced that applicant has in fact changed and is currently of
good moral character. n4 Our chief concern is with applicant's most recent
marijuana use. When
marijuana use is in violation of
a condition of
probation, it may be evidence of disrespect for law sufficient to prove bad
moral character. On the other hand, when that
probation violation is the result of some form of dependency and that dependency is
later overcome, as appears to have occurred in this case, that violation loses
most of its relevance. Assuming that the
marijuana use in violation of
probation is evidence of applicant's
unsatisfactory
moral
[*592] character at that time, applicant's use of
marijuana terminated in February, 1984. That is now more than four years ago.
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n4
See
In re Chase, 299 Or 391, 702 P2d 1082 (1985) (possession of a
controlled substance does not involve moral turpitude).
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[***13]
The
length of time without evidence of
unsatisfactory character needed to permit the conclusion that the actor is now of
good moral character varies with, among other things, the person's age, the
length of time that the
unsatisfactory
characteristics were evident and the nature of the
unacceptable behavior. In applicant's case, we find that four years without engaging in
the activities that evidenced his former
unsatisfactory character are sufficient to indicate that he has changed. His personal,
academic, professional and other achievements in the last four years all
support the conclusion that applicant now is of
good moral character.
Perhaps most
convincing is the fact that there has been a slow, steady change in applicant's
activities. The pattern of behavior exhibited by applicant shows a maturation
process that started in 1978 or 1979 and has steadily continued. There was no
sudden change when applicant decided to become a lawyer and that therefore
might be treated with skepticism. Rather, there has been a change that
predated the decision to attend
law school and continued while in
law school.
CONCLUSION
A possibility has been raised that applicant should be admitted
[***14] conditionally or on
probation.
See
In re Schaeffer, 273 Or 490, 497, 541 P2d 1400 (1975). We think, however, that if this court is
convinced that applicant is
presently of
good moral character, he should be admitted. If the court is not
convinced, his application for admission should be denied. If a lawyer is of
good moral character, the lawyer should be able to start a legal career on the same basis as other
lawyers.
[**910] We judge only applicant's present
moral character. His fitness to practice law is not otherwise at issue.
See
In re Fine, supra. While this court is mindful of the protection that must be accorded the
lawyer's future clients, n5 we can judge only whether the lawyer's present
character presents a risk. If
[*593] applicant's character becomes an issue at some time in the future, action can
be taken at that time.
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n5 BR 7.5 requires that the applicant show that the applicant's admission to
the Bar will not be detrimental to the administration of justice or the
public interest.
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[***15]
Applicant did not previously have the requisite
moral character to be a lawyer in this state. His evidence that he has changed and is
presently of
good moral character is clear and
convincing. We are satisfied that he has met his burden of proof. Applicant's application
for admission to the Oregon State Bar is allowed.
