| 303 Ore. 111, *; 734 P.2d 340, **;
1987 Ore. LEXIS 1198, ***
|
In re Complaint as to the Conduct of JOHN W. EADS, JR., Accused
SC Nos. S32005, S32891
SUPREME COURT OF OREGON
303 Ore. 111;
734 P.2d 340;
1987 Ore. LEXIS 1198
December 3, 1985, Case no. SC S32005 argued and submitted; October 7, 1986,
Case no. SC S32891 argued and submitted
March 24, 1987
PRIOR HISTORY:
[***1]
Review of the Opinion, Findings of Misconduct and Imposition of Sanctions of
the Trial Panel of the Oregon State Bar. OSB Nos. 83-96, 83-112, 84-81, 85-68.
DISPOSITION: The accused is disbarred. The Oregon State Bar is awarded its actual and
necessary costs and disbursements. ORS 9.536(4).
COUNSEL: Stuart E. Foster, Medford, argued the cause for the accused. With him on the
brief and petition was Foster
& Purdy, Medford.
Donald Crane, Klamath Falls, argued the cause for the Oregon State Bar.
Richard B. Rambo, Klamath Falls filed the answering brief for the Oregon State
Bar.
Stuart E. Foster, Medford, argued the cause for the accused. With him on the
petition, brief and reply brief was Foster
& Purdy, Medford.
Susan D. Isaacs, Assistant General Counsel, Portland, argued the cause for the
Oregon State Bar.
JUDGES: In Banc. * In Banc. **
* Roberts, J., retired February 7, 1986.
** Gillette, J., not participating in the decision in this case.
OPINIONBY: PER CURIAM
OPINION:
[*114]
[**341] This matter involves two separate lawyer disciplinary proceedings instituted
by the Oregon State Bar against the accused, John W. Eads, Jr. The first
proceeding was instituted by the Bar
[***2] in May 1984 (Eads II) n1 and argued in this court on December 3, 1985. At
argument on Eads II, the court was informed that additional charges were being
investigated involving the accused. Thereafter, when the opinion of the trial
panel in the more recent case (Eads III) was filed with the court, the court
proposed withholding decision on Eads II until Eads III was argued and
submitted. Neither the accused nor the Bar objected. The last proceeding was
initiated by the Bar on December 9, 1985, and argued in this court on October
7, 1986.
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n1 An earlier disciplinary proceeding (Eads I) against the accused on an
unrelated claim of unethical conduct,
alleged to have occurred between September 1979 and December 1981, was resolved
in favor of the accused.
In re Eads, 299 Or 33, 698 P2d 486 (1985).
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EADS II
The accused was charged in three causes of complaint with nine violations of
the Code of Professional Responsibility (Disciplinary Rules). The accused
admitted, and the trial panel found, that he
[***3] had committed eight of those violations. The accused did not admit one
violation and the trial panel reached no conclusion thereon.
FIRST CAUSE: THE JAMES MATTER
The first cause of complaint arose out of the accused's association with a Mr.
and Mrs. James. The Jameses retained the accused to probate the estate of
their adopted son. Before probate could occur, the accused was required to
close an existing conservatorship and transfer its funds to the probate estate.
It took the accused nine months to complete this step. During that nine
months, the accused failed to
keep appointments with the Jameses and failed to return telephone calls from
the bank handling the conservatorship.
After November 1981, when the conservatorship was closed and the assets
transferred to the probate estate, only the payment of inheritance, estate and
final fiduciary taxes was required to close the probate estate. The accused
failed to
[*115] file the proper tax returns and, in early 1982, the probate estate was
assessed penalties and interest. Throughout the remainder of 1982 and the
first half of 1983, the accused led the Jameses to believe that he had filed
the proper tax returns and was
[***4] awaiting the tax releases necessary to finish closing the probate estate. In
reality, the returns had not been filed and the checks written by the Jameses
to pay the taxes remained in a file in the accused's office. Finally, in
mid-1983, the Jameses hired a new lawyer.
In answer to the Bar's complaint, the accused admitted, among
other things, that only the payment of inheritance, estate and final fiduciary
taxes were required to close the probate estate, that he promised his clients
that he would file the tax returns immediately, that he failed to do so, that
he had told the clients that the tax returns had been filed and that he had not
done so.
The Bar charged the accused with four violations of the Code of Professional
Responsibility:
DR 1-102(A)(4) provided: n2
"A lawyer shall not:
"Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
DR 6-101(A)(3) provided: n3
"A lawyer shall not:
[**342]
"Neglect a legal matter entrusted to him."
DR 7-101(A)(2) provided: n4
"A lawyer shall not intentionally:
"Fail to carry out a contract of employment entered into with
[***5] a client for professional services, but he may withdraw as permitted under DR
2-110, DR 5-102, and DR 5-105."
[*116] DR 7-101(A)(3) provided: n5
"A lawyer shall not intentionally:
"Prejudice or damage his client during the course of the professional
relationship, except as required under DR 7-102(B)."
The accused admitted, and the trial panel found, that the violations had
occurred.
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n2 Subsequent to the conduct of the accused and the filing of the complaint by
the Bar, this disciplinary rule was amended and now is numbered DR 1-102(A)(3),
which provides:
"It is professional misconduct for a lawyer to: * * * Engage in conduct
involving dishonesty, fraud, deceit or misrepresentation."
n3 This disciplinary rule also was amended (in an immaterial particular) and
now is numbered DR 6-101(B).
n4 This disciplinary rule also was amended in an immaterial particular.
n5 This disciplinary rule also was amended in an immaterial
particular.
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SECOND CAUSE: THE
[***6] SCHEPPLER MATTER
In November 1982, the accused agreed to assist a Washington lawyer, Gregory L.
Lutcher, in the registration and collection of a Washington judgment involving
a Medford, Oregon, debtor. Mrs. Scheppler, the Washington creditor, forwarded
a $ 150
"retainer" fee to the accused, through Mr. Lutcher.
Between November 1982 and May 1983, the accused made no effort to communicate
with either Mrs. Scheppler or Mr. Lutcher. He also neglected to return Mr.
Lutcher's telephone calls. In May 1983, Mr. Lutcher sent a letter advising the
accused that, if he were unable to assist Mrs. Scheppler, he should notify Mr.
Lutcher so that new counsel could be retained. The letter also requested an
accounting of the $ 150. When the accused failed to respond, Mr. Lutcher sent
a second letter attaching a copy of
a letter of inquiry from Mrs. Scheppler. Mrs. Scheppler asked that the $ 150
be returned so that she could hire other counsel. Again, the accused failed to
respond. In July 1983, Mr. Lutcher sent a final letter giving the accused 10
days to respond. When there was no response, Mr. Lutcher notified the Bar.
The accused was charged with four violations of the Code of Professional
[***7] Responsibility: DR 6-101(A)(3),
supra; DR 7-101(A)(2),
supra; and DR 9-102(B)(3) and (B)(4), which provided: n6
"A lawyer shall:
"Maintain complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and render appropriate accounts
to his
[*117] client regarding them.
"Promptly pay or deliver to the client as requested by a client the funds,
securities, or other properties in the possession of the lawyer which the
client is entitled to receive."
The accused admitted, and the trial panel found, that the first three
violations had occurred.
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n6 This disciplinary rule also was amended in an immaterial particular.
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The accused does not admit violation of DR 9-102(B)(4); he argues that he is
entitled to the $ 150 payment made by Mrs. Scheppler. He testified that his
hourly rate was $ 75 and that he spent two hours driving to Grants Pass to pick
up the file and reviewing the procedure for registration of a foreign
[***8] judgment. He admits that he never communicated with the judgment debtor or
registered the foreign judgment.
On
de novo review, we are unable to determine from the record whether the understanding
in respect of the fee between the accused and Mrs. Scheppler (through Mr.
Lutcher) was a true retainer fee or an advance in contemplation of future
services. For a discussion,
see Oregon State Bar
Ethics Opinion No. 205 (1972), withdrawn by Board of Governors (1972), and No.
251 (1973). In his testimony, the accused acknowledged:
"I can't honestly, I can't say that the fee was earned." Nevertheless, if the understanding called for a retainer fee, the failure of
the accused to perform sufficient work for the client
[**343] would not necessarily result in an ethical violation upon the failure to
return the fee. We are unable to find by clear and convincing evidence that
the accused violated DR 9-102(B)(4).
THIRD CAUSE: FAILURE TO RESPOND TO THE BAR
The third cause of complaint arose out of the Scheppler matter. When the
accused failed to respond to Mr. Lutcher's correspondence, Mr. Lutcher filed a
complaint with the Bar. The accused then failed to respond to a letter
[***9] from the General Counsel's office of the Bar and also a subsequent letter from
the Local Professional
Responsibility Committee. The accused was charged with violating DR 1-103(C),
which, in 1984, at the time the alleged conduct took place involving this
charge, provided: n7
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n7 This disciplinary rule also was amended in immaterial particulars.
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[*118]
"A lawyer who is the subject of a disciplinary investigation shall respond fully
and truthfully to inquiries from and comply with reasonable requests of the
general counsel, the local professional responsibility committees, the state
professional responsibility board, and the board of governors as requested,
subject only to the exercise of any applicable right or privilege."
The accused admitted, and the trial panel found, that this violation had
occurred.
As a result of the foregoing findings and conclusions, the trial panel
recommended a stayed, one-year suspension, subject to compliance by the accused
with a structured rehabilitation
[***10] program, and probation for three years.
EADS III
The accused was charged in
seven causes of complaint with acts of escalating gravity. The complaint
alleges acts of neglect, delay and misrepresentation in the probate of the
estate of Iris C. Burton. The accused is further charged with failing to
cooperate with the Bar's investigation and lying to the Bar about the
disposition of a client's funds. Finally, the accused is alleged to have
misappropriated $ 50,000 of a client's money, misrepresented the status of an
appeal, commingled client funds with his own and failed to account for the
client's money. The accused disputes the charges of failing to turn over
accounts to a client, engaging in illegal conduct involving moral turpitude,
and engaging in conduct involving misrepresentation.
THE BURTON ESTATE
The first three causes of complaint arose out of the handling of a probate
estate by the accused. The personal representative of the estate hired the
accused to represent her for the probating of the estate. The probate
proceedings were initiated by the
accused on February 22, 1981.
The trial panel found that the accused neglected a legal duty in failing to file
[***11] timely the inventory (even after two notices and a show cause order from the
court), failing to file timely a document with the court, failing to deposit
incoming funds of the estate for over six months (with a resulting loss of
[*119] money to the estate), and failing to file timely the fiduciary income tax
returns (resulting in assessed penalties and interest to the estate), n8
thereby violating DR 6-101(A)(3). The trial panel found the accused not guilty
of a violation of DR 7-101(A)(2) n9 under the foregoing conduct.
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n8 DR 6-101(A)(3) provided:
"A lawyer shall not:
"Neglect a legal matter entrusted to him."
This
disciplinary rule has been amended (in an immaterial particular) and now is
renumbered DR 6-101(B).
n9 DR 7-101(A)(2) provided:
"A lawyer shall not intentionally:
"Fail to carry out a contract of employment entered into with a client for
professional services, but he may withdraw as permitted under DR 2-110, DR
5-102, and DR 5-105."
This disciplinary rule also has been amended in an immaterial particular.
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[***12]
The trial panel found that, over an 18-month period, the accused lied to the
beneficiaries (or their respective lawyers) about the status of fiduciary
income tax returns, releases, and whether taxes were due. The accused, by
trial stipulations, admitted that
[**344] some of the statements were false and that he knew they were false when he
made them. The trial panel concluded that the accused violated DR 1-102(A)(4).
n10
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n10 DR 1-102(A)(4) provided:
"A lawyer shall not:
"Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
See n 2.
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By trial stipulation, the accused admitted that he failed to respond fully and
truthfully to inquiries from representatives of the Bar. The trial panel
concluded that the accused violated DR 1-103(C), as quoted above.
THE RICHARDS MATTER
The final four causes of complaint involve the dealings of the accused with Dr.
Richards, a client of the accused against whom a civil judgment had been
rendered.
Evidence
[***13] before the trial panel discloses that the accused filed a notice of appeal in
behalf of his client. Dr.
[*120] Richards forwarded to the accused $ 50,000 for a supersedeas bond to forestall
execution of judgment pending appeal. The accused did not file the bond,
though he told
Dr. Richards that he had. Instead, the accused withdrew $ 19,500 from Dr.
Richards' trust account and converted it to his own use. The bond was never
filed and, after two notices to the accused, the Court of Appeals allowed the
opponent's motion to dismiss the appeal.
The money was withdrawn in three increments during November and December 1983.
In each case, the accused wrote a check on Dr. Richards' account, signed it and
deposited it into his general account. The first withdrawal, $ 7,000, went to
pay two obligations of the accused. The second withdrawal, for $ 10,000, cured
a default on the accused's house. The third withdrawal was for $ 2,500, but
the accused does not remember how he used it. In each case the accused stated
that he was aware that he was taking Dr. Richards' money and that it did not
belong to him. In the fall of 1984, the accused returned $ 32,000 to Dr.
Richards. A balance
[***14] of $ 18,000
apparently still is owing.
As a result of the foregoing conduct, the Bar charged the accused, and the
trial panel found him guilty of violating the following disciplinary rules:
DR 1-102(A)(3), which provided: n11
"A lawyer shall not:
"Engage in illegal conduct involving moral turpitude."
DR 1-102(A)(4), two counts, which provided: n12
"A lawyer shall not:
"Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
[*121] DR 9-102(A), which provided: n13
"All funds of clients paid to a lawyer or law firm, other than advances for
costs and expenses, shall be deposited in one or more identifiable bank
accounts maintained in the state in which the law office is situated and no
funds belonging to the lawyer or law firm shall be deposited therein except as
follows;"
DR 9-102(B)(3) and (4), which provided: n14
"A lawyer shall:
"Maintain complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and render appropriate accounts
to his client regarding them.
"Promptly pay or deliver to
[***15] the client as requested by a client the funds, securities, or other properties
in the possession of the lawyer which the client is entitled to receive."
[**345] As in the previous cause of complaint, the accused also admitted violation of
DR 1-103(C), as quoted above.
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n11 Subsequent to the conduct of the accused and the filing of the complaint by
the Bar, this disciplinary rule was amended and now is numbered DR 1-102(A)(2),
which provides:
"It is professional misconduct for a lawyer to: * * * Commit a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness or fitness to
practice law."
n12
See n 2.
n13 This disciplinary rule was amended (in immaterial particulars) and now is
numbered DR 9-101(A).
n14 These disciplinary rules were amended (in immaterial particulars) and now
are numbered DR 9-101(B)(3) and (4).
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On these charges, two members of the trial panel recommended
disbarment. The third member filed a dissenting opinion wherein he recommended a
[***16] stayed suspension of three years with three years probation under certain
specified conditions.
RESOLUTION
The accused was addicted to alcohol, marijuana and cocaine during the period of
the acts charged. The accused places his drug dependency in issue in two
discrete ways: its effect on culpability (Eads III) and its effect on the
appropriate sanction (Eads II and III). He asserts that his addiction
precluded him from appreciating the wrongfulness of his acts; he therefore did
not have the intent required to find him guilty of misappropriation and
misrepresentation. Alternatively, the
accused asks this court to impose a sanction with primary
[*122] emphasis on his rehabilitation. The accused argues that
disbarment, as recommended by the Bar, is too severe a sanction in light of his
rehabilitation from addiction since the Bar filed formal charges. n15
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n15 The accused, in both proceedings, offered substantial evidence that, since
mid-December 1984, he has embarked upon a rehabilitation program. Through the
date of the second hearing he has been drug free.
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[***17]
CULPABILITY
Culpability, the intent with which an act is done, is an element in some but
not all disciplinary rule violations. At least two of the disputed charges in
Eads III contain as an element the culpable commission of certain acts. DR
1-102(A)(3) and (4) provide that a lawyer shall not
"[e]ngage in illegal conduct involving moral turpitude," or
"[e]ngage
in conduct involving dishonesty, fraud, deceit, or misrepresentation."
The accused asserts that
"[a]s a result of his serious chronic addiction to chemicals, [he] did not have
the cognitive capability to appreciate the wrongfulness of his acts." The accused asserts that this case resembles
In re Holman, 297 Or 36, 682 P2d 243 (1984), and should be resolved in the same way.
In re Holman, supra, involved a charge, among others, of withdrawing $ 42,000 from the lawyer's
"office client trust account" for his own personal use. This court found that the intent required for the
misappropriation charge had not been proved by clear and convincing evidence.
The accused presented evidence that his acts of misappropriation and
commingling were the result of mental impairment by reason of prescription drug
addiction
[***18] such that the Bar's
prima facie showing of intent was in question. The evidence showed memory lapses and
impairment of cognitive
function at the time the accused made the withdrawals, indicating that he was
unaware at the time of his acts that the withdrawals were improper.
The criminal code addresses intoxication and addiction as it relates to
culpability. ORS 161.125(1) provides:
"The use of drugs or controlled substances, dependence on drugs or controlled
substances or voluntary intoxication shall
[*123] not, as such, constitute a defense to a criminal charge, but in any
prosecution for an offense, evidence that the defendant used drugs or
controlled substances, or was dependent on drugs or controlled substances, or
was intoxicated may be offered by the defendant whenever it is relevant to
negative an element of the crime charged."
Holman in effect incorporated this standard when it acknowledged that addiction could
be used to negative the element of intent.
Holman contrasted the evidence in
In re Warner W. Gregg, 252 Or 174, 446 P2d 123, 448 P2d 547 (1968), where the court found the accused
"committed the defalcations because of his
addiction
[***19] to alcohol. However, he knew what he was doing when he cashed at least some
of the checks and before the association officials questioned him he was aware
that he had committed defalcations."
252 Or at 177.
Gregg found intentional misappropriation
[**346] despite the accused's defense of alcohol addiction. n16
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n16 On rehearing, the sanction of
disbarment was reduced to a three-year suspension. We have no explanation for this
deviation from the settled treatment of knowing misappropriation of client
funds.
In re Warner W. Gregg, 252 Or 174, 446 P2d 123, 448 P2d 547 (1968). The sanction in this case is discussed
infra at 17.
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This distinction is pertinent to the present case. The immediate question here
is whether the accused offered evidence that would negative the Bar's
prima facie case of intentional misappropriation. We find that he has not.
With regard to the misappropriation claim, the trial panel found that the
accused,
"in 3 transactions, withdrew a total of $ 19,500 of these
[***20]
trust funds from his trust account, deposited them in his own office account
and used the money for Accused's own purposes when Accused knew that he was not
entitled to so use those funds." The evidence bears this out. The accused acted with knowledge of the
impropriety of his conduct. We find that the misappropriation was intentional.
MITIGATION
The accused suggests that cases involving drug or alcohol addiction require
special treatment; a
per se rule of
disbarment, he asserts, will have a detrimental effect on lawyers who should seek
treatment for addiction. He argues that
[*124] this court should fashion a sanction that will promote the rehabilitation of
lawyers facing
discipline, such as the accused, and give chemically dependent lawyers an incentive to
seek help before their clients are damaged.
The accused presents the following standard by which to impose a sanction less
severe than
disbarment: The court must find that the accused (1) was addicted to one or more
substances; (2) but for the addiction the accused is a competent practitioner; (3) but for
the addiction the accused would not have committed the acts that gave rise to
the disciplinary proceeding;
[***21] and (4) the accused has commenced an effective rehabilitation program and is
abstaining from the addictive substance(s). n17
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n17 The accused's suggested test is similar to one developed by the Minnesota
Supreme Court in
In re Johnson, 322 NW2d 616 (Minn 1982). In that case, a lawyer guilty of misappropriation received a reduced sanction
of two-years probation with conditions because of his
alcoholism. The court posited a five-part test for an addiction defense, requiring proof:
"1. That the accused attorney is affected by
alcoholism. 2. That the
alcoholism caused the misconduct. 3. That the accused attorney is recovering from
alcoholism and from any other disorders which caused or contributed to the misconduct.
4. That the recovery has
arrested the misconduct and the misconduct is not apt to reoccur [sic]. 5.
That the accused attorney must establish these criteria by clear and convincing
evidence."
322 NW2d at 618.
For an analysis of this test and how it has been applied in Minnesota
see Note,
The Disability Defense: How It Serves to Mitigate Charges of Professional
Misconduct by Attorneys, 12 Wm Mitchell L Rev 119 (1985).
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[***22]
As the accused presents it, we understand this test to encompass more than a
showing of unawareness of wrongdoing at the time of the act. The accused
presented the opinion of a psychologist to the effect that the accused would
not have acted as he did were he not dependent on drugs. This may be true. An
addiction can at some level be the cause of many misdeeds. But we find the
conclusion too attenuated.
This court faced a similar, if less explicit, plea in
In re Laury, 300 Or 65, 706 P2d 935 (1985), in which a lawyer charged with misappropriation of client funds argued that
his
alcoholism led to his misconduct. He asserted that the court should impose a reduced
sanction with consideration of the facts that
alcoholism is a treatable illness and the accused was prepared to rehabilitate himself.
Laury analyzed a number of past decisions of this court involving misappropriation
and defenses of
alcoholism or mental illness, including cases
[*125] imposing suspensions rather than
disbarments. With regard to the latter cases,
Laury stated:
"Since the time of the [In re Warner W.]
Gregg, [252 Or 174, 446 P2d 123, 448 P2d 547 (1968)], [In re James
[***23]
H.]
Lewelling, [244 Or 282, 417 P2d 1019 (1966)], [In re William J.]
Sundstrom, [250 Or 404, 442 P2d 604 (1968)] and [In re Kenneth W.]
Stodd, [279 Or 565,
[**347] 568 P2d 665 (1977)] decisions, we have spoken to misappropriation of clients' funds in no
uncertain terms in
In re Pierson, 280 Or 513, 571 P2d 907 (1977), in which we did disbar the lawyer. * * *"
300 Or at 76.
In
In re Pierson, 280 Or 513, 571 P2d 907 (1977), we stated:
"We hold that a single conversion by a lawyer to his own use of his client's
funds will result in permanent
disbarment."
280 Or at 518. n18
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n18 The term
"permanent"
disbarment is no longer accurate, if it ever was. Oregon State Bar Rule of Procedure
6.1(d), promulgated pursuant to the Oregon State Bar Board of Governors'
statutory rulemaking authority, ORS 9.542, suggests that reinstatement after
disbarment is possible. It provides, in part, that a
"disbarred attorney may not apply for reinstatement until five
years has elapsed from the effective date of his or her
disbarment." This court must approve rules promulgated by the Bar. ORS 9.005(6), 9.542.
Presumably, our authority to disbar is limited by the opportunity for
reinstatement provided in the rule.
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[***24]
Between
Pierson and
Laury lies a sequence of cases, broken only by
In re Holman, supra, in which misappropriation of client's funds -- even a single conversion --
resulted in
disbarment.
See
In re Kellner, 297 Or 329, 331, 683 P2d 89 (1984) (conversion of client's funds; court cites to
Pierson
"in which a single conversion by a lawyer to his own use of his clients' funds
resulted in permanent
disbarment");
In re Thomas, 294 Or 505, 527, 659 P2d 960 (1983) (misappropriation with no alcohol mitigation);
In re Robeson, 293 Or 610, 632, 652 P2d 336 (1982) (lawyer found guilty of misappropriation, among other offenses;
"The finding of guilt on the first cause alone [misappropriation] would warrant
permanent
disbarment");
In re McCormick, 281 Or 693, 697-98, 576 P2d 371 (1978) (lawyer disbarred for conversion of client funds to own use; excuse of alcohol
and marital problems held
"insufficient as a basis for the imposition of any lesser penalty than is usual
in such cases"). As
Laury makes clear:
"Citations to cases earlier than
Pierson for lenient treatment of misappropriation of funds by lawyers is no longer of
any avail."
300 Or at 76.
With
[***25] few exceptions, this court had, prior to
Pierson,
[*126] disbarred lawyers guilty of misappropriation of clients' funds.
See
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);
In re Chester R. Sloniger, 224 Or 276, 355 P2d 975 (1960);
In re Hermann, 165 Or 59, 105 P2d 512 (1940);
In re McGowan, 161 Or 393, 89 P2d 598 (1939);
State ex rel Multnomah Bar Association v. Tarpley, 122 Or 479, 259 P 783 (1927);
State ex rel McCourt v. Garland, 77 Or 92, 150 P 289 (1915);
State ex rel McCourt v. Smith, 73 Or 96, 144 P 424 (1914);
Ex parte Kindt, 32 Or 474, 52 P 187 (1898).
The exceptions can be placed in
two categories: Cases in which the accused raised a defense that some
disability negated the requisite intent,
In re Holman, supra;
In re Albright, 274 Or 815, 549 P2d 527 (1976); n19 and cases in which we have treated misappropriation with leniency, with or
without a disability defense, because there were
"grounds to hope for rehabilitation."
In re Kenneth W. Stodd, 279 Or 565, 568 P2d 665 (1977);
In re Warner W. Gregg, supra; In re William
[***26]
J. Sundstrom, 250 Or 404, 442 P2d 604 (1968);
In re James H. Lewelling, 244 Or 282, 417 P2d 1019 (1966).
See also
In re George M. Sennatt, 211 Or 358, 315 P2d 557 (1957). The latter category was disavowed in
In re Laury, supra.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n19
In
In re Albright, 274 Or 815, 549 P2d 527 (1976), the accused was found guilty of neglect, deceit and misuse of client trust
funds. He was reprimanded and placed on probation for five years. At the time
of the incident, the lawyer suffered from undisclosed physical problems that
affected his judgment. We stated:
"The neglect and subsequent deception were not a result of calculated or willful
wrongdoing."
274 Or at 819-20.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The accused places particular emphasis on his rehabilitation. The evidence is
undisputed that the accused has avoided alcohol and other addictive drugs since
December 1984. He continues to attend Alcoholics Anonymous meetings regularly
and to see a psychologist. He testified that he intends to repay Dr. Richards
in full.
[**348] We
[***27] have taken emotional, mental, physical and addictive disabilities and
subsequent rehabilitation into account in a number of cases involving offenses
less serious than the intentional misconduct at
issue here. As recently as
In re Germundson, 301 Or 656, 663, 724 P2d 793 (1986), we wrote:
"* * * In disciplinary cases, we distinguish [substance abuse's]
[*127] role in assessing culpability from its significance in determining what is
required to protect the public against future misconduct. Culpability under
the disciplinary rules requires different mental elements, which may range from
intent through knowledge and negligence to strict liability, and it is possible
that a lawyer's innocent dependency on some drug without his own knowledge may
incapacitate him from the required degree of mental judgment. * * *"
We also said, with reference to the American Bar Association's suggested
standards on sanctions, that
"the kind of impairment caused by
alcoholism can (not necessarily will) mitigate
discipline though it is no defense to the disciplinary charge."
301 Or at 664. n20
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n20
In re Germundson, 301 Or 656, 663, 724 P2d 793 (1986), involved conflicts of interest and accepting loans from a client. We imposed
a 63-day suspension and a three-year probation with conditions to monitor
alcohol rehabilitation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***28]
Germundson was preceded by a long line of cases reflecting the same policy. Lawyers
charged with neglect of legal duties brought about by substance abuse or
physical or emotional disability and who had taken steps toward rehabilitation
were suspended and placed on a structured probation.
See
In re Paauwe, 298 Or 215, 691 P2d 97 (1984);
In re Lewelling, 298 Or 164, 690 P2d 501 (1984);
In re Heath, 296 Or 683, 678 P2d 736 (1983);
In re Hereford, 295 Or 604, 668 P2d 1217 (1983);
In re Varnes, 285 Or 463, 591 P2d 366 (1979);
In re Richard F. Crist, 258 Or 88, 481 P2d 74 (1971);
see also
In re Loew, 292 Or 806, 642 P2d 1171 (1982) (in addition to neglect, the lawyer was guilty of misrepresenting the progress
of the case and intentionally failing to perform a contract for legal services;
he suffered from
"burn-out" syndrome);
In re Dan Dibble, 257 Or 120, 478 P2d 384 (1970) (lawyer guilty of numerous court appearances while drunk; readmission was
contingent on a showing of rehabilitation);
In re Ronald L. Ricketts, 249 Or 575, 439 P2d 873 (1968) (lawyer guilty of false representations to a client and concocting imaginary
litigation and dismissal
[***29] to appease client; his mental problems caused his misconduct).
The significant difference between these cases and the present one is the
gravity of the misconduct. As these cases
indicate, we have imposed a period of probation in addition to suspension in
cases of less serious violations that would
[*128] not normally require
disbarment. In cases where
disbarment is the norm, we hold that drug or alcohol dependency will not reduce that
sanction.
Upon
de novo review, we find the accused guilty of DR 1-102(A)(3), DR 1-102(A)(4) [four
counts], DR 1-103(C) [three counts], DR 6-101(A)(3) [three counts], DR
7-101(A)(2) [two counts], DR 7-101(A)(3), DR 9-102(A), DR 9-102(B)(3) [two
counts] and DR 9-102(B)(4).
The accused is disbarred. The Oregon State Bar is awarded its actual and
necessary costs and disbursements. ORS
9.536(4).
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