IN THE SUPREME COURT OF THE STATE OF
ORRIN R. ONKEN,
For Reinstatement as an Active
Member of the Oregon State Bar
OREGON STATE BAR’S OPENING BRIEF
A. Nature of the Proceeding.
Orrin Onken (hereinafter, “Applicant”) seeks reinstatement as an active member of the Oregon State Bar (hereinafter, “Bar”). Applicant has not been an active member of the Bar since December 13, 1994, when the Oregon Supreme Court accepted his Form B resignation.
B. Nature of Judgment Sought to be Reviewed.
Applicant filed an application for reinstatement, which was submitted to the Board of Governors of the Bar. The Board opposed reinstatement. BR 8.7. A hearing was held before the Disciplinary Board Trial Panel on November 27 and 28, 2001. BR 8.11. The trial panel filed its opinion on February 21, 2002, and recommended the Applicant be reinstated as an active member of the Bar provided he (1) take and pass the Oregon State Bar examination; and (2) enter into a professional recovery contract to be administered by the Professional Liability Fund, which contract would include random urine monitoring, continued attendance at Alcoholics Anonymous meetings, and any other condition imposed by the Professional Liability Fund in its reasonable judgment for a probationary period of two years.
C. Statutory Basis for Appellate Jurisdiction.
This matter is before the court pursuant to ORS 9.539 and BR 10.2.
Applicant attended Willamette University beginning in 1979 (Ex 40f, p 2) He served as Editor-in-Chief of the school’s law review and graduated at the top of his class (Ex 40f, p 2)
He was admitted to the Oregon State Bar on September 24, 1982. (Ex. 44) Despite his distinguished law school career, the Applicant’s career as a practicing lawyer was short and relatively unsuccessful. He began as a litigation associate at the firm now known at Tonkon Torp LLP. (Tr 35-36) After less than a year, Applicant was terminated for poor performance. (Tr 39)
In 1983, he went to work as an associate for Melkonian & Associates. (Tr 66) In November 1986, he was admonished for violating DR 6-101(B) when he failed to diligently pursue a domestic relations matter. (Ex 1) In the late 1980s Applicant set up a solo practice and rented space from Mr. Melkonian (Tr 67) He closed that practice in early 1989 and went to work for Hyatt & Associates because he needed the stability of clientele and the certainty of income. (Ex 40, p 1) Applicant stopped practicing law on December 31, 1989, because of a recent divorce, the failure of his solo practice, and burnout. (Tr 110; Tr 186)
The problems in Applicant’s first marriage to Deborah Sullivan also revolved around financial difficulties. For example, because he was unable to obtain credit on his own, Applicant convinced Ms. Sullivan to co-sign on a $3,600 loan. Although Applicant had the obligation to repay the loan, he did not do so and Ms. Sullivan repaid the entire loan. (Tr 54-55; Tr 208)
As a result of the Applicant’s extramarital affair with his current wife, he and Ms. Sullivan dissolved their 17-year marriage. On October 25, 1988, Ms. Sullivan obtained a judgment against the Applicant for $6,650.00 (Ex 3) As with the prior loan, the Applicant never made any payments to Ms. Sullivan on that judgment. Instead, on May 8, 1990, he filed a Chapter 7-bankruptcy proceeding, listing a $10,000 unsecured debt to Ms. Sullivan. (Ex 8, p 6) On August 23, 1990, all of the Applicant’s debts, including the debt to Ms. Sullivan were discharged. (Ex 11) Applicant has never made any efforts to repay Ms. Sullivan or even apologize to her. (Tr 58; Tr 206)
On June 1, 1990, Applicant was suspended from the practice of law for failing to comply with MCLE requirements, and on July 24, 1990, for failing to pay his Oregon State Bar Membership Dues. (Ex 23)
Between 1990 and 1992 Applicant was unemployed. During those two years he obtained the previously discussed discharge in bankruptcy, and also prevailed in two subsequent adversary proceedings. (Ex 42, p. 10-11)
On March 9, 1992, the Applicant entered a 30-day in-patient alcohol treatment program at Laurelhurst Manor. The Applicant has continued to participate in Alcoholics Anonymous since then. (Ex 42, p 12; Tr 233-234)
On January 25 1993, Applicant submitted his application for reinstatement to active membership status pursuant to BR 8.2. At that time the Applicant disclosed his recent recovery from alcoholism. Because the Bar had not received any complaints or allegations that the Applicant’s alcohol dependency resulted in damage to a client or other party, the Bar recommended the Applicant be conditionally reinstatement and subject to two years of probation. (Ex 23) The court entered an order of stipulated conditional reinstatement on April 20, 1993. (Ex 24)
On July 7 and July 8, 1994, the Bar received complaints from Mr. Melkonian that he and a former client, Marv Tonkin Leasing Company, had recently discovered that Applicant converted client funds in 1986 and again in 1988. (Ex 33 and 34)
Marv Tonkin had obtained a money judgment against Roger Jones. In 1985, Melkonian & Associates was retained to pursue collection of the judgment from Jones and Applicant thereafter pursued the matter. (Exs 26 and 33)
Jones began making monthly payments to the firm. On March 25, 1986, Jones wrote a check to the Applicant for $160. The check noted that it was “for Marv Tonkin v. Jones.” The Applicant did not deposit the check into the lawyer trust account or otherwise distribute the funds to Marv Tonkin. Instead the Applicant endorsed the check and deposited the funds into a personal account. (Ex 25, p 2 and 3)
In June 1988, $1,262.10 paid by Jones on the judgment was being held in the lawyer trust account maintained by Melkonian & Associates. (Ex 26 p 4) On June 21, 1988, Mr. Melkonian issued a check from the trust account payable to Marv Tonkin for $656.50, representing “collection case: Roger Jones.” (Ex 28, p 2) Mr. Melkonian gave the check to the Applicant to deliver to Gary Ferlisi, the Marv Tonkin employee who had referred the matter to the firm. (Ex 33) The Applicant did not delivery the check. Instead, he endorsed it “Marv Tonkin Leasing by Orrin Onken its attorney,” cashed it, and used the funds for his own personal use. (Ex 28, p 3)
When Applicant was first contacted about these discrepancies, he had to obtain advice from Don Muccigrosso and Jon Henricksen before deciding to repay his former client. (Ex 30) In response to Mr. Melkonian’s allegations, the Applicant acknowledged that he was aware of the circumstances and had recently made restitution to his former client. The Applicant claimed to have no memory of the events because at the time he was suffering from chronic and active alcoholism (Ex 39) In support of his contention, the Applicant submitted a letter from Gary Brebner, who was his primary counselor at Laurelhurst Manor in 1992 (Ex 40a) The Applicant did not submit any evidence regarding his medical or mental condition in 1986 and 1988 when the thefts occurred.
On October 13, 1994, the Bar filed a formal complaint alleging that Applicant intentionally converted client funds on two occasions in violation of DR 1‑102(A)(3). (Ex 41)
On November 9, 1994, Applicant signed a Form B resignation in which he admitted “On two occasions I converted funds due to a client, Marv Tonkin Leasing Inc. to my personal use. The first occurred in March 1986 and involved the conversion of $160. The second occurred in June of 1988 and involved the sum of $656. If proven, the alleged conduct may constitute violations of DR 1‑102(A)(3).” (Ex 41)
Pursuant to the Form B resignation and for purposes of this reinstatement proceeding, the pending application is treated as an application by one who has been disbarred for misconduct.
BR 8.1(b) and (c) provide:
(b) Required Showing. Each applicant 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. No applicant shall resume the practice of law in this state or active membership unless all the requirements of this rule are met.
(c) Learning and Ability. In addition to the showing required in BR 8.1(b), each applicant under this rule who has remained in a suspended or resigned status for more than three years or has been enrolled voluntarily or involuntarily as an inactive member for more than five years must show that the applicant has the requisite learning and ability to practice law in this state. The Board may recommend and the Supreme Court may require as a condition precedent to reinstatement that the applicant take and pass the bar examination administered by the Board of Bar Examiners, or successfully complete a prescribed course of continuing legal education. Factors to be considered in determining an applicant’s learning and ability include, but are not limited to: the length of time since the applicant was an active member of the Bar; whether and when the applicant has practiced law in Oregon; whether the applicant practiced law in any jurisdiction during the period of the applicant’s suspension, education activities during the period of suspension or inactive status in this state.
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” is evidence sufficient to establish that the truth of the facts asserted as “highly probable.” In re Gortmaker, 308 Or 482, 487, 782 P2d 421 (1989). The purpose of this proceeding is to determine whether the public and the Bar will be served if Applicant is permitted to practice law. In re Koken, 214 Or 357, 361, 329 P2d 894 (1958).
Applicant has the burden of demonstrating that “…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 law.’” In re Nash, 317 Or 354, 362, 855 P2d 1112 (1983) citing In re Taylor, 293 Or 285, 296, 647 P2d 462 (1982). If, after considering all the evidence in this case, there is any doubt as to the Applicant’s moral character or fitness, that doubt must be resolved in favor of protection of the public and reinstatement should be denied. In re Taylor, supra, 293 Or at 296.
In reviewing an application for reinstatement of a lawyer previously disciplined, or an application for admission of an individual who has a background of misconduct, the inquiry is whether the applicant sufficiently demonstrates reformation. In re Jaffee, 311 Or 159, 806 P2d 685 (1991); In re Rowell, 305 Or 584, 754 P2d 905 (1988). Accordingly, the evaluation of an applicant’s good moral character and fitness is made at the time of the application, with the primary focus upon applicant’s conduct subsequent to discipline. In re Gortmaker, supra, 308 Or at 487.
While the focus is on the present, the circumstances of Applicant’s prior misconduct and Form B resignation are relevant insofar as they reflect upon his present character and fitness to practice law. In re Gortmaker, supra, 308 Or at 488. Applicant’s prior misconduct is the best evidence of his prior moral character and fitness and establishes a base line from which to analyze Applicant’s reformation. Only by comparing Applicant’s reformation evidence with his previous misconduct can the “(court reasonably assure itself) that the misconduct which brought the applicant [before the court] once before will not reoccur.” In re Koken, supra, 214 Or at 360. In that regard, the court must be convinced by clear and convincing evidence that the applicant is of good moral character now and will not again be influenced by the specific character flaw that led to the prior discipline. In re Griffith, 323 Or 99, 106, 913 P2d 695 (1996).
The Bar and the Applicant agree that at the time he stole funds from his former client, his baseline moral character was one of dishonesty and deceit. He was dishonest and deceitful in his personal life, as evidenced by the extra-marital affair which led to the break-up of his marriage, and he was dishonest and deceitful in his professional life. (Tr 165 and 186) When Applicant consulted with Dr. Byrd in October 2001, he recalled being dishonest, being terrified about financial matters and many of his other dishonest deeds, including scamming for sums far larger than those involved in 1986 and 1988, outside of his role as a lawyer. (Ex. 67, p. 4)
The Bar and the Applicant disagree about the root cause of Applicant’s dishonesty and deceit. The Applicant contends and the trial panel found that his alcoholism caused or contributed to his dishonest and deceitful character. The court should reject that conclusion because, except for recent statements by the Applicant, there is no evidence that the Applicant was an alcoholic in March 1986 or June 1988.
At the hearing, the Bar presented evidence that during the 1980s Applicant was fully cognizant and not impaired. Mr. William Martsen, who is personally familiar with the signs and symptoms of an alcoholic, testified that when the Applicant worked for him at Tonkon Torp LLP, he had no suspicions that the Applicant had an alcohol problem. Mr. Martsen observed the Applicant daily and did not observe any outward signs of alcoholism. Instead, he observed the Applicant to be mentally alert at all times during 1982 and 1983. (Tr 38) Mr. Melkonian, who worked with the Applicant between 1983 and 1989, testified that during those years, the Applicant had no memory or cognitive problems, that his work demeanor in 1986 and 1988 was beyond reproach, and that Applicant was not impaired or under the influence of drugs or alcohol (Tr 68, 71, and 72)
In 1990 the Applicant informed the Bar that he left the practice of law because of a recent divorce, the failure of his solo practice and burn out. (Ex. 7). At the hearing, Applicant’s current wife testified that Applicant left the practice of law at the end of 1989 because he was burned out. (Tr 110) She also testified that she was shocked when he called her in March 1992 and told her he had to stop drinking or he would kill himself. (Tr 113)
The Bar has no reason to doubt that the Applicant was an alcoholic by the time he entered treatment in 1992. However, the only evidence that Applicant was an alcoholic in 1986 and 1988 are statements made by him after the thefts were discovered. Under those circumstances, clear and convincing evidence that the Applicant has recovered from alcoholism is not adequate reformation to ensure that the flaw that led him to steal in 1986 and 1988 will not again influence him.
There are also policy reasons why the court should disregard any evidence that Applicant’s alcoholism caused or contributed to the thefts in 1986 and 1988. In 1994, as a result of Mr. Melkonian’s allegations and evidence, the Applicant was charged with intentionally converting clients funds in violation of DR 1-102(A)(3). (Ex. 41) At that time, the Applicant had the opportunity to present evidence that his alcoholism caused or contributed to his conduct. For whatever reason, the Applicant chose not to present such evidence, but instead chose to admit the conduct as alleged.
For purposes of this reinstatement proceeding, the allegations in the Form B are admissions and the Applicant is collaterally estopped from presenting evidence that contradicts those admissions. See In re Rhodes, 331 Or 231, 13 P3d 512 (2000). [in a disciplinary proceeding, lawyer was precluded from attacking prior court decisions finding him in contempt of court for failing to pay spousal support to his former wife]. If a lawyer who signs a stipulation for discipline is allowed to contradict that stipulation in a subsequent reinstatement proceeding, the discipline system would have no certainty and would constantly be in flux. The court should disregard any evidence that the alcoholism caused or contributed to the 1986 and 1988 thefts,
The circumstances of the situation and admissions by the Applicant suggest that he became dishonest and deceitful because of an inability to handle personal and financial failure and stress. His inability to deal with the failure of his marriage, in part due to his inability to make a living as a lawyer, caused him to be dishonest and deceitful towards Ms. Sullivan. His inability to deal with the failure of his solo practice, again resulting in financial hardship, caused him to bc dishonest and deceitful towards his clients and colleagues.
In order to satisfy his burden of proof, the Applicant must show that he has overcome his inability to deal with the effects of disappointment and failure that led him to engage in dishonest and deceitful behavior. The Applicant has indicated he has no intention of returning to the type of stressful private practice he engaged in between 1983 and 1989. However, once the Applicant is reinstated to the practice of law, neither the Bar nor the court can prevent him from doing so. In re Nash, supra 317 Or at 364.
4. Acknowledgement of Wrongfulness
Perhaps no single factor is as important in evaluating a claim of reformation as an applicant’s willingness to admit candidly the wrongfulness and seriousness of prior misconduct, and to take responsibility for the conduct. Such recognition by an applicant is deemed essential by the court. In re Jaffee, 319 Or 172, 178, 874 P2d 1299 (1994); In re Gortmaker, supra; In re Rowell, 305 Or 584, 591, 754 P2d 905 (1988); In re Bevans, 294 Or 248, 252, 655 P2d 573 (1982). Failure to make such an acknowledgment is typically fatal to a reinstatement application. In re Parker, 314 Or 143, 154, 838 P2d 54 (1992); In re Gortmaker, supra, 308 Or at 490.
Prior to and at hearing, the Applicant contended that he recalled being a dishonest person and being capable of falsely endorsing checks, but cannot specifically recall doing so in 1986 and 1988. (Tr 165; Ex 67, p 4) The only explanation the Applicant provided for his failure to recall the crucial facts at issue here is because he was involved in more serious moral transgressions. (Tr 201; Ex 40f-2; Ex 56-2) A lawyer who minimizes the gravity of his or her prior misconduct cannot sustain the burden of proof in a reinstatement proceeding. See e.g., In re Gortmaker, supra (reinstatement denied, in part, because the applicant minimized the gravity of his misconduct).
Applicant did not present any medical evidence regarding his condition in 1986 or 1988 when the Bar asked him to respond to Mr. Melkonian’s complaint. At the hearing, the Applicant did present medical evidence that his alcoholism caused or contributed to his dishonesty and deceit. However, those medical experts were under the possibly mistaken impression that in 1986 and 1988 the Applicant was a severe alcoholic (Tr 297; Tr 328-329) Because their basic understanding of Applicant’s condition in 1986 and 1988 was based upon a supposition that the Applicant cannot prove, their conclusions about the root cause of the Applicant’s dishonesty and deceit is not persuasive.
At the hearing, Applicant did not present any medical evidence that in 1986 or 1988 he exhibited gross deterioration of his cognizant abilities or that he had any organic brain dysfunction that impacted on his memory. See In re Holman, 297 Or 36, 682 P2d 243 (1984) [testimony of medical experts regarding deterioration of the lawyer’s cognizant abilities and resulting organic brain dysfunction due to addiction to prescription drugs adequately explained lawyer’s inability to remember stealing client funds] There is no persuasive evidence that the Applicant’s inability to recall the events in 1986 and 1988 is anything other than volitional. Under these circumstances, Applicant’s unwillingness to recall the events is substantial evidence that he has not come to terms with what he did and still fails to take responsibility for his conduct.
5. Character Evidence
The court has repeatedly recognized the importance of character testimony and letters of reference. In re Jaffee, supra, 319 Or at 178; In re Rowell, supra, 305 Or at 590; In re Bevans, supra, 294 Or at 252. This testimony is most useful when it comes from people who have had an opportunity to observe the applicant both before and after the suspension. In re Rowell, supra, 305 Or at 590. However, evidence of past acts or conduct is relevant to the issue of an applicant’s present moral character and fitness only if rationally connected to the applicant’s fitness to practice law. In re Fine, 303 Or 314, 736 P2d 183 (1987).
At the hearing Applicant presented testimony from his sister-in-law and his mother-in-law. Neither of them knew the Applicant in 1986. They both had an opportunity to observe the Applicant in 1988, when he submitted the Form B resignation, and up until the present. However, neither of them testified that they believed Applicant was a dishonest person in 1988. The Applicant’s sister-in-law testified that when she first met the Applicant, he was secretive and didn’t communicate with her. (Tr. 148) The Applicant’s mother-in-law testified that Applicant he was pretty secretive and quiet and that she didn’t get to know him until after he quit drinking. (Tr 148).
Applicant’s wife also testified at the hearing. She testified that the Applicant lied to her often about searching for a job during the two years (1990-1992) he was unemployed (Tr 112) She also testified that they argued a lot in the last months before he entered treatment in March 1992 because he was unemployed (Tr 112) She did not testify that he was dishonest or deceitful when they met in 1987 or through 1989 when the Applicant ceased practicing law.
The trial panel found the testimony of the Applicant’s stepson particularly compelling. The Applicant and his stepson began living together in the fall of 1988 (Tr 107) At that time the stepson was in junior high school. (Tr 282) The stepson testified that he and his mother had always been honest with each other and the situation did not change when the Applicant moved in with them. (Tr 285) This testimony is inconsistent with the Applicant’s contentions that he was dishonest and deceitful up until he entered treatment in March 1992. The Bar suspects that because of the stepson’s age at the time, he was unable to accurately observe or understand what was actually happening in his home.
The testimony of Applicant’s co-workers and friends is not of much assistance because they did not know the Applicant until after 1992.
6. Resolution of Personal Problems
An applicant’s handling of financial affairs is regularly considered in determining moral fitness. In re Taylor, supra 293 Or at 293. Evidence regarding an Applicant’s personal problems and the steps an Applicant took to resolve those problems is helpful to the question of whether the applicant take taken steps to reform his character.
The trial panel did not address whether Applicant resolved his prior personal problems except to say that he displayed remorse for his actions and that his living circumstances made (and still make) it impossible for him to repay the financial debt to Ms. Sullivan.
On easy step the Applicant could have taken was to apologize to Ms. Sullivan. While it may be difficult or even impossible for the Applicant to make full or even partial financial amends to Ms. Sullivan, he has yet to take even the first step toward recognizing the wrong he did her.
In 1994 Applicant recognized that Mr. Melkonian was also a victim of his misconduct. (Ex 32) At the hearing the Applicant acknowledged that he should apologize to Mr. Melkonian. (Tr 174) He had an opportunity when Mr. Melkonian testified, but because he was still angry about a dispute they had in 1990, he chose not to apologize to him. (Tr 174)
All of the Applicant’s witnesses who testified about this issue, acknowledge that Applicant has not repaired or made amends for his misconduct. (Tr 100-103; Tr 334-349) The lawyer who was representing Applicant in the reinstatement proceeding resigned because he did not believe the Applicant had satisfied his duty to make amends. (Ex 66) In response to their concern, the Applicant contends that, because of the bankruptcy discharge, he has no moral obligation to make amends. (Onken Motion to Exclude p. 2) Applicant’s failure to apologize to those he injured and his inability to recognize any moral responsibility to do so is evidence that the Applicant is still not able to confront personal or professional failure.
A review of Oregon case law shows that it is possible for a lawyer who was disbarred for theft prior to January 1, 1996, to be reinstated. However, the burden is great and evidence of reformation is not established merely by the passage of time. In re Koken, supra, 214 Or at 360, In re Rowell, supra, 305 Or at 592.
The Bar submits that Applicant is unable to fulfill his burden of clearly and convincingly demonstrating that he presently possesses the requisite moral character and fitness for reinstatement to the practice of law.
In essence, the Applicant is asking the court to disregard his life and the mistakes he made before 1989 even though he has not provided a valid reason for the court to do so. Until the court is convinced that the Applicant has overcome the root cause of the dishonesty and deceit that led him to steal in 1986 and 1988, the court should not reinstate the Applicant to the practice of law.
Respectfully submitted this ____ day of June, 2002.
OREGON STATE BAR
Stacy J. Hankin, OSB No. 86202
Assistant Disciplinary Counsel
 A lawyer who resigned under Form B after January 1, 1996, is not longer eligible for reinstatement. See BR 8.1(a)(ii).
 Contested reinstatement and contested admission proceedings are two different types of proceedings. ORS 9.539; BR 7.1 and 8.8. The focus of both, however, is an assessment of the applicant’s good moral character and fitness. ORS 9.220(2)(a); BR 8.12.
 The Applicant wrote the following to Dr. Byrd, “I remember being dishonest, remember being terrified about financial matters and remember many of my other dishonest deeds, including scamming for far larger sums outside of my role as a lawyer, but I do not remember the circumstances and needs that motivated these particular thefts. I think that I have many other partial memories as well.”
 The ABA model rules for lawyer disciplinary enforcement lists among criteria for reinstatements that “the lawyer recognizes the wrongfulness and seriousness of the misconduct since suspension or disbarment.” ABA Rule 25(e)(4).
 In a November 6, 1994, letter the Applicant sent to the Bar he stated, “Although I have tried to the point of fantasy, I cannot remember the thefts from Marv Tonkin Leasing. I do not believe that they occurred in an intoxication induced blackout or some sort of Hollman type stupor. Instead, I believe that I failed to recall them because during those years I was simply busy with more serious moral transgressions.”
 In a November 18, 2001, letter the Applicant sent to Dr. Byrd he stated, “Greg Austin no longer represents me. Back in 1990, at the height of my drinking, I declared bankruptcy and have not paid back the debts discharged in that proceeding. Although there was nothing underhanded or manipulative about the bankruptcy, Greg felt that this was such a severe handicap and ninth step failure that he no longer wanted to be associated with my case.