IN THE SUPREME COURT OF THE STATE OF
ORRIN R. ONKEN,
For Reinstatement as an Active
Member of the Oregon State Bar
APPLICANT’S ANSWERING BRIEF
I. STATEMENT OF THE CASE
Orrin R. Onken (hereinafter “Applicant”) accepts the Bar’s statement with only the following addition to its summary of the judgment to be reviewed.
In recommending reinstatement of the Applicant, the trial panel found by clear and convincing evidence that the Applicant has reformed those character deficiencies that led to his disbarment, that he now possesses the good moral character and general fitness to practice law, and that his resumption of the practice of law will not be detrimental to the administration of justice or the public interest.
II. QUESTION PRESENTED FOR REVIEW
A. Whether the trial panel was correct in finding by clear and convincing evidence that the Applicant now possesses good moral character and that his resumption of the practice of law will not be detrimental to the administration of justice or the public interest.
III. SUMMARY OF THE ARGUMENT
A. The Applicant has proved by clear and convincing evidence that he has overcome the character defects that led to his Form B resignation. The objections to reinstatement argued by the bar raise primarily issues of credibility. The trial panel was able to see and hear the witnesses. It was therefore in a particularly good position to make those determinations. Its application of law to the facts was consistent with existing case law. The decision of the trial panel should be affirmed.
IV. STATEMENT OF FACTS
Applicant graduated cum laude from Willamette University School of Law in 1982. While in law school he served as Editor-in-Chief of the Willamette Law Review. (Tr 163; Ex 40f. p 2 )
Although the Applicant did well in law school he did not thrive in practice. His first job was with the firm of Tonkon, Torp LLP where he did not perform well. (Tr 164) After leaving that firm he went to work in a small collection practice run by Bruce Melkonian. The change in jobs meant a drop in income and a drop in social status. (Tr 165) The collection practice did not prosper and by 1987 Applicant was the only employee. (Tr 166) He and Mr. Melkonian soon thereafter changed their relation from one of employer and employee to one of tenant and landlord. (Tr. 167). The change meant that once again Applicant’s income dropped. (Ex 104; Tr 181). Applicant and Mr. Melkonian continued a small general practice, each man working independently out of the same suite until 1989. (Tr 185)
1988 Applicant’s marriage to his wife of fifteen years ended. The breakup of the marriage was partially the
result of Applicant’s failure to live up to the normal obligations a husband owes
a wife. (Tr 184-85) He moved from the
home he had owned into an apartment where he cohabitated with the woman who
would become his current wife. Applicant
married Lois Patterson on
In the spring of 1989, Applicant took a job with Hyatt Legal Services. On the last day of 1989 Applicant voluntarily left the law and has not practiced since that day. (Tr 186) Shortly after leaving the practice of law Applicant filed for bankruptcy protection. His creditors included lending institutions, malpractice claimants, his ex-wife, Mr. Melkonian and the Oregon State Bar. All listed debts were settled or discharged. (Ex 8; Ex 11) The case included adversary proceedings involving Mr. Melkonian and the Oregon State Bar. Applicant was also suspended from the Oregon State Bar in 1990 for failure to pay Bar assessments. (Ex 23)
suffered from increasingly severe untreated alcoholism throughout law school
and all times thereafter. (Ex 40f; Tr 163). For over two years after leaving the practice
of law Applicant was unemployed and possibly unemployable due to alcohol and
drug abuse. (Tr 187) On
After being released from Laurelhurst, Applicant associated himself with a chapter of Alcoholics Anonymous near his home. (Tr 192) As of the hearing over nine years later, he was still abstinent and still associated with the same AA group. (Tr 234)
the fall of 1992, Applicant took a position at the W.L.May Company in
In January, 1993, Applicant applied for reinstatement to the Oregon State Bar. At that time he advised the Bar of his treatment for alcoholism. (Ex 23) The Bar, having previously been a party to a contested case proceeding in the bankruptcy, was then well aware of the financial difficulties that had accompanied his alcoholism. (Ex 23) He was readmitted conditioned upon his continued participation in AA and his being monitored by Don Muccigrosso of the Oregon Attorney Assistance Program. (Ex 24; Ex 25) Mr. Muccigrosso asked that Applicant attend weekly AA meetings at the offices of the Oregon Attorney Assistance Program (OAAP). After reinstatement, Applicant did not practice law. He did, however, comply with the terms of his probation.
early 1993, Applicant purchased a small home computer and began supplementing
his recovery program with on-line activities first at the local bulletin board
level and later on the then emerging internet.
At that time there was no commercial activity on the internet. Applicant connected with academics from
around the world and was able to study informally under some internationally
recognized scholars in philosophy and psychology. (Tr 118; Tr 357)
By 1996, Applicant was moderator of the internet forum “Netdynam,” a
group hosted by
In the spring of 1994 Applicant was presented with documentary evidence that he had on two occasions while working with Mr. Melkonian converted client funds to his own use. He had converted the sum of $160 in March, 1986 and $656 in June, 1988. (Ex 25; Ex 26; Ex 28) When notified of the conversions in 1994 he immediately repaid the injured client and apologized in writing for his actions. (Ex 30; Ex 32) At approximately the same time Mr. Melkonian reported the matter to the Bar. (Ex 33) Shortly thereafter a formal complaint was filed against Applicant seeking disbarment. (Ex 40b) Due possibly to the drama of intervening events, including the divorce, loss of job, bankruptcy and years of substance abuse, Applicant did not in 1994 recall the thefts or the circumstances that might have motivated them. (Ex 40f; Tr 201-02) However, based upon his examination of the documents and his recollection of his rapidly declining moral character during that period of his life, he came to the conclusion that he was fully culpable for the theft of client funds. (Tr 176; Tr 199) After consultation with counsel and examining the applicable law himself, he executed a Form B resignation in lieu of contesting the complaint against him. (Ex 40f) Applicant drafted the resignation and in it admits to all elements of conversion including all mental state elements. (Ex 41) He declined to offer his alcoholism as the cause of the thefts, an excuse for his behavior, or a mitigating factor in determining sanctions. (Tr 199-200).
years elapsed. During this period of
time Applicant stayed at his job, continued to participate in AA, and in 1998
was instrumental in starting Hinten House, a 501(c)(3) corporation dedicated to
purchasing and maintaining real property for use by qualifying twelve-step
recovery groups. (Tr 238; Ex 105: Ex
106) For three years he served as the
General Service Representative for his AA group. (Tr 235) He produced scholarly
work in the philosophical underpinnings of Alcoholics Anonymous. (Ex 109).
Motivated by his informal studies in psychology, in 1999 he began a
graduate program in gerontology at
The trial panel opinion in this matter is a ringing endorsement of the Applicant’s decade-long struggle to recover from alcoholism and the moral deterioration that accompanies it. The panel heard from the Applicant’s family, from his co-workers, from his scholarly colleagues, from the medical experts, and from those who have struggled with him in the battle against addiction. The witnesses covered every aspect of his personal and professional life. After a hard-nosed examination of the facts and an accurate application of law, the panel concluded that “the evidence of reformation is not only clear and convincing; it is substantial and impressive in the complete reversal of habits that consumed the Applicant for years.” (ER 32) In every respect the Applicant has met and surpassed the requirements for readmission. The panel opinion should be upheld.
A. The Trial Panel gave proper weight and effect to Applicant’s recovery from alcoholism.
Much of the testimony at Applicant’s reinstatement hearing concerned the alcoholism that plagued the Applicant throughout his adult life. The Bar repeatedly argues that the Applicant’s alcoholism and subsequent recovery are irrelevant to the issue of reformation and moral character. However, from the very beginning of the case the Bar has confused the disease of alcoholism with the effects of being intoxicated. This confusion has caused the Bar to misunderstand the nature of the Applicant’s arguments. The trial panel, however, was not confused and properly applied well-established law to the facts of the case.
Any person can become intoxicated and do regrettable things. However, that does not make the person an alcoholic nor does it suggest character degradation. Similarly, alcoholics are not always intoxicated, and they often carry intellectual acumen into the final stages of the disease. The Bar consistently suggested that the Applicant was offering intoxication as a defense to the charges that led to his 1994 Form B resignation. The trial panel correctly concluded that Applicant asserted neither intoxication nor alcoholism as a defense to the charge that he embezzled money, and did not otherwise attempt to re-litigate his disbarment. Both in 1994 and in 2001, he steadfastly asserted his personal responsibility for the thefts,. (ER 31) asserting only that his recovery from late-stage alcoholism is probative of his current moral fitness. At the hearing he showed how recovery from alcoholism had permitted him to slowly return to a position of respect in his family, in his work, in his neighborhood and in a small community of scholars. The trial panel understood that his case is about recovery and reformation, not about crimes committed under the influence of alcohol.
Applicant raised the issue of alcoholism because the disease is synonymous with degraded morals, loss of integrity, and poor judgment, even when the sufferer is not intoxicated. During his alcoholism, Applicant exhibited each of these character defects. If, however, degraded morals and poor judgment due to alcohol were a defense to criminal charges, our prisons would quickly empty. See, In re Laury, 300 Or 65, 73, 706 P2d 935, 939 (1985). Applicant recognizes this as sound social policy and never argued that voluntary intoxication was or should have been a defense in the disciplinary action that led to his resignation. Furthermore, he never suggested overruling the line of cases including In re Pierson, 280 Or 513, 571 P2d 907 (1977), In re Laury, 300 Or 65, 706 P2d 935 (1985), and In re Eads, 303 Or 111, 734 P2d 340 (1987) which hold that chemical dependency does not excuse misappropriation of funds or mitigate the sanction. He does not want to change the law. He asserts only that his recovery from addiction to alcohol and the steps he took to achieve it have been integral to his moral reformation and intensely relevant to the character and integrity he exhibits today.
At the hearing and in the brief before this court the Bar urges the trier of fact to either hold Applicant to the approach set out in In re Holman, 297 Or 36, 682 P2d 243 (1984) or to reject as irrelevant all evidence about his alcoholism. (Tr 18-19) The facts of Holman are complex, but in the end Mr. Holman avoided disbarment for embezzling over $40,000 from a client because he was so intoxicated at the time that he could not form the intent to commit the crime. In contrast, Applicant here has never claimed he was intoxicated at the time of the embezzlements or that he was intellectually impaired when sober. Mr. Holman, according to testimony at the trial, was consistently intoxicated at work and unable to perform the work of a lawyer. Applicant informed the Bar back in 1994 that he had never gone to work or to court intoxicated and that his ability to read and analyze legal materials did not deteriorate until the last few months of his addiction. (Ex 40f) Despite this the Bar persistently suggests that he could not have been alcoholic because he was not in some sort of permanent stupor in the years that the thefts occurred. That is not how alcoholism works. Mr. Holman avoided disbarment with a highly unusual and rarely successful defense. Applicant accepted disbarment because he was a garden variety alcoholic who did the crime, admitted it, and accepted the legal consequences. (Tr 327)
At the hearing, experts and lay witnesses alike testified that alcoholics exhibit progressively declining moral standards and impaired judgment even when not intoxicated. Dr. Walton Byrd, a prominent expert in addiction described alcoholism. It is a progressive genetically transmitted disease characterized by obsessive use of alcohol and loss of control. As the disease progresses alcoholics compromise their own values and develop defense mechanisms that shut them off from the reality of their condition. Professionals are particularly prone to alcoholism, but with most professionals the disease does not surface in the workplace until very late in its development. Dishonesty is essential for the survival of the illness, driving the afflicted to all sorts of ethical compromises. However, after a significant period of sobriety the alcoholic’s basic values return. (Tr 323-326).
Mr. Sweeny, a witness from the OAAP, opined that alcoholism and dishonesty are virtually interchangeable, and that after thirteen years of counseling thousands of alcoholic lawyers he never encountered even one alcoholic who had not committed dishonest acts while drinking. (Tr 84; Tr 92) Dr. Horowitz testified that alcoholism compromises proportion, prudence and dignity requiring alcoholics to construct an elaborate series of lies to allow them to continue their pattern of drinking. (Tr. 290) He also demonstrated by instances from his own life that professionals, while suffering the degradation of character, can remain technically competent and intellectually sharp into the final stages of the disease. (Tr 300)
The most convincing witness on this issue, however, may have been the Bar’s own. Mr. Martson, called by the Bar, testified to his ten years of experience with an alcoholic wife. When asked by Bar counsel to tell the panel the characteristics of the alcoholic he quickly offered up “a pattern of lying” as the penultimate characteristic of alcoholism. (Tr 38) When asked whether slurred speech was a characteristic of an alcoholic, Mr. Martson correctly pointed out that this was evident only when actually intoxicated. Lying and unreliability were there all the time. (Tr 38) Mr. Martson’s straightforward lay testimony was as insightful as any of the lengthy professional opinions to the same effect. Alcoholism and dishonesty go hand in hand whether or not the alcoholic is actually drunk.
Although alcoholism is a difficult and powerful affliction, the disease and the degradation of morals that accompanies it need not be a permanent affliction. Millions of Americans have recovered sobriety and most of them are able to develop greater integrity and strength of character than they ever had. Professionals who refrain from intellectualizing the condition and truly accept their disease tend, because of their intelligence, to do very well in recovery. (Tr 323-24) Applicant followed the route to recovery taught by Alcoholics Anonymous. In AA, honesty is the core virtue upon which recovery depends. To be incapable of honesty is to be incapable of sobriety and for many to drink again is to die. When Applicant arrived at the tiny tough-love AA group known as Scullys in the winter of 1992, AA was his last hope. He did not quit drinking to become honest. He became honest so he could quit drinking.
The moral deterioration of the alcoholic appears across the spectrum of social roles. Thus, dishonesty is not confined to the home, or the community, or the workplace, but shows itself in all those places. Applicant’s alcoholism affected all roles he played and thus his recovery had to take each one into account. After emerging from residential treatment he had to learn how to work again, how to support his family, and how to contribute to the communities around him. The witnesses to his recovery represented four social roles which he had to rebuild: his role as husband and father, his role as a worker, his role in the local community, and his role in the wider intellectual community. At the center of this rebuilding process was the support and direction he got from his association with AA.
In each of the four social roles – family, work, community, and academics -- he had to earn the trust and respect of those around him. He was not excused his past because of his alcoholism, but was instead given a chance to begin anew. Those who gave him that chance reaped the rewards of engaging a man who had much to offer in any role he was allowed to play. The Oregon Bar now has the opportunity to reap the same rewards by accepting Applicant once again in their midst. He has not let down his family, his workplace or his community. He will not let down the bar.
Applicant’s program of recovery from alcoholism is the tie that binds his behaviors in the various social roles. AA helped Applicant rebuild his life and become a responsible and respected member of society once again. This sort of rebuilding is exactly what the court has said it wants to see from applicants seeking a BR 8.1 reinstatement. Holman, with its emphasis on crimes committed while intoxicated, has nothing to do with rebuilding. The hearing panel understood this, and properly rejected the Bar’s claim that Holman and related disbarment cases ought to determine what proofs of reformation are available in reinstatement proceedings. Applicant was not re-litigating his disbarment. He was offering logical proof of his reformation and relevant evidence concerning his current moral condition.
B. The trial panel’s credibility determinations ought not be disturbed.
While many aspects of character reformation can be measured by evidence of objective changes in an applicant’s life, reformation claims still often succeed or fail based upon credibility determinations. In the instant case there were three important credibility questions: (1) whether Applicant was being deceptive about his alcoholism and not remembering the thefts that led to the Form B resignation; (2) whether debts to his ex-wife were fraudulently induced; and (3) whether Applicant has minimized the gravity of his misdeeds. Credibility determinations are normally made based upon the totality of the circumstances, including the witness’s attitude and demeanor. The panel was in a particularly good position to evaluate the credibility of Applicant in that not only did he testify at length about his misdeeds and subsequent reformation, but he also represented himself throughout the proceeding. Thus, the panel got to see him act and react under the stress of performing the enormously difficult task of self-representation. The panel had to live with this “fool for a client” for the full two days of hearing and in doing so had every opportunity to see whether he would be evasive, dismissive or obstructive to the search for truth. In the end they decided he was more believable than his detractors. That determination was made with every advantage that live presence provides and ought not to be disturbed. In re Trukositz, 312 Or 621, 629, 825 P2d 1369 (1992)
At the time of the form B resignation Applicant told the bar that although he was in all respects convinced of his culpability he did not actually remember the thefts or the circumstances that might have motivated them. (Ex 40f) He opined that he had at one time planned to surreptitiously replace the stolen funds, (Ex 42, question 11) but amidst the subsequent stresses of job change, divorce, unemployment, bankruptcy, numerous instances of serious malfeasance in his family, and the life-style of alcoholism itself, his memory of the thefts and circumstances surrounding them simply failed. (Ex 56; Tr 167) He remembers and admits, however, being dishonest, deceptive, and capable of embezzlement. (Tr 166) Furthermore, he has never claimed that his current lack of memory implies that he did not understand the nature and consequences of his acts when he committed them.
Dr. Horowitz and Dr. Byrd both testified that memory loss is not unusual among alcoholics; particularly one’s like Applicant who use alcohol to self-treat severe depression. (Tr. 290-91; Tr 300; Tr 316-17; Tr 329) Additionally, it is fairly common knowledge that heavy periods of drug use become somewhat of a blur when one tries to remember them years later. Unconvinced, the Bar has regularly asserted that Applicant’s lack of memory is indicative either of his current deceptiveness or of an ongoing failure to acknowledge the seriousness of his wrongdoing. Based upon Applicant’s testimony, the testimony of experts, and common sense, the panel found that it was neither. That determination ought not be disturbed.
In its brief before the court the Bar gives its claim about the lack of memory a twist that it never presented at the hearing. It suggests that although there is evidence that Applicant was alcoholic in 1992, there is insufficient evidence that he was alcoholic in 1986 and 1988 when the thefts occurred. This argument is a stretch. Applicant testified in 1994 and during the hearing that he was drinking obsessively all through law school and continuously thereafter. See, In re Gildea, 325 Or 281, 297, 936 P2d 975 (1997)(The testimony of an accused lawyer, if the court deems it credible, can be sufficient to establish facts.) His current wife and sister-in-law, who have known him since at least 1987 testified to his character and drinking habits during the early years of their acquaintance. (Ex 57; Tr 106-109; Tr 139-140) And Mr. Melkonian, one of his employers during the mid-eighties, wrote of instances in which his hands were shaking and he smelled of alcohol from the previous nights’ binge. (Ex 62) The Bar’s evidence for Applicant’s non-alcoholism at the time of the thefts consists of statements by employers that he was “cognizant” and “mentally alert” when he was sober and at work. (Bar’s Brief p 8) These statements demonstrate the misunderstanding of alcoholism discussed above. He was addicted and morally degraded, not intellectually impaired. Furthermore, Mr. Martson, the person who testified that Applicant was mentally alert while working at Tonkon, Torp, also testified that alcoholics go to great lengths to conceal their condition. At the time in question Applicant had every reason to hide his alcoholism from his employers. The panel correctly found that Applicant was alcoholic and drinking heavily in the years the thefts occurred. (ER 21) There was ample evidence for that conclusion and no witness testified convincingly to the contrary. Furthermore, the Bar’s theory requires one to believe that the Applicant went from normal to late-stage alcoholic in less than five years. This is medically unlikely.
The Bar claims that Applicant’s bankruptcy was tainted by fraud. The theory early in the case was the Applicant improperly induced his ex-wife to trade a dissolution judgement for an unsecured note thereby losing her lien on real property and a secured position in Applicant’s subsequent bankruptcy. (Ex 63) At hearing, however, the Bar’s own exhibits demonstrated that there was no real property lien at the time of the exchange and that Applicant’s ex-wife suffered no loss of position in bankruptcy court as a result of the transaction. (Tr 58-60; Ex 42 question 7c) See also ORS 18.420 . The Bar then suggested that there was fraud in the inducement of a small joint obligation incurred by both parties in the late eighties or that the $6,000 judgment in the dissolution decree was meant to compensate his ex-wife’s parents for a loan they made to him for law school. Applicant’s testimony was that the $6,000 judgment was a somewhat arbitrary settlement of all claims arising from the dissolution, (Tr 182; Tr 184) , that the money from her parents was one of many informal loans to the couple during the marriage, and that although he had often been deceptive during the marriage the small joint loan the Bar complained of went ultimately for the benefit of the marital estate. (Tr 207) In the years just prior to the divorce the Applicant’s wife was a successful accountant who handled all money matters for the family. (Tr 184) At the time of the dissolution she had a higher income than did the Applicant and was well represented by counsel. (Tr 183-84) To the extent that loans from her parents were not repaid during the nineteen eighties, she was an equal partner in the failure.
The testimony about the Applicant’s ex-wife did not come through her, but was reported from notes through the Bar investigator, Ms. Saroyan. The testimony revealed that Applicant’s ex-wife, although having no contact with him for well over ten years, is still angry and hurt by the acrimonious end to their marriage. Without dismissing the pain she still must feel, the panel chair suggested that decade-old hearsay from an angry ex-spouse is of marginal probative value regarding Applicant’s current attitudes or moral condition. He termed it not just hearsay, but “bad hearsay” and correctly declined to give it significant weight on the issue of current moral fitness. (Tr 51)
Another reason for suspecting the testimony of Ms. Saroyan appeared later in the proceedings. In the cross examination of Mr. Hilton, a loan officer for Key Bank, it became clear that Mr. Hilton had during the investigation attempted to explain to Ms. Saroyan the tenet of AA which holds that no amount of past sobriety guarantees future sobriety. Ms. Saroyan, seeing the evidence through heavily tinted prosecutorial lenses, interpreted this to mean that Applicant’s record of sobriety was insufficient to suggest that he could refrain from alcohol use in the future. (Tr 241-242) Fortunately, Mr. Hilton was there to put his statement in context, and Mr. Sweeny was there to give actual statistics about years of recovery and the odds of relapse. (Tr 93-94) In the case of the Applicant’s ex-wife, however, there was no live witness to affirm, deny or place in context Ms. Saroyan’s investigatory notes.
Finally the Bar asserts that Applicant has minimized the gravity of his malfeasance because he has on numerous occasions mentioned the small sums involved. The panel properly noted that telling the truth is not minimization of the severity of a crime. (ER 31) In fact, openly recognizing the small amounts involved helps one understand the motives behind the thefts. The embezzlements did not arise out of greed. They arose out of desperation and a severe impairment of judgment. Applicant traded his career for less than a thousand dollars. It was not the behavior of a greedy man, but rather the behavior of an obsessed and fearful man. It was the behavior of an addict.
The panel properly weighed the evidence concerning Applicant’s lack of memory, his treatment of his ex-wife, and his statements concerning the amount of his thefts and found that he and his witnesses simply made more sense than his accusers. Memory impairment is a normal and natural consequence of depression and chronic alcoholism. Although his ex-wife had debts discharged in bankruptcy along with the Oregon State Bar, Mr. Melkonian and others, she was neither the object of the proceeding nor did she suffer a detriment over and above that of any other creditor. Finally, Applicant’s truthful statements about the amount taken in his embezzlements did not minimize the crimes. Instead they highlighted the moral, psychological and financial conditions out of which the crimes arose. The panel’s credibility determinations on these issues ought not to be disturbed.
C. The Trial Panel properly determined the issues surrounding Applicant’s decade-old bankruptcy
Over the course of this readmission proceeding the Bar has raised a variety of concerns about Applicant’s 1990 Chapter 7 bankruptcy. The essence of the Bar’s complaint is that he has not repaid the debts listed in the bankruptcy petition and fails to feel sufficiently remorseful toward the discharged creditors. It reluctantly acknowledges that federal law prohibits denying him a license to practice law because he has not paid debts discharged in bankruptcy, 11 USC § 525 (2002), Perez v. Campbell, 402 U.S. 637, 91 S.Ct 1704, 1971 U.S. Lexis 127 (1971). But with a “wink and a nod” the bar suggests that it can avoid the impact of the federal non-discrimination statutes by making the discharged debts into moral obligations. The Bar cites no legal or mainstream moral authority for such a position.
Throughout the proceeding the Bar argued that debts discharged in bankruptcy remain “moral obligations” and must be repaid before Applicant can be considered moral enough to practice of law. (Tr 22; Tr 394; Tr 397) The Bar vigorously argued that Applicant’s failure to repay the discharged debts and his invocation of federal anti-discrimination protection reflects a devil-may-care attitude toward the creditors in that proceeding. (Tr 394-95) Several courts have examined the theory whereby moral obligations (which in this context carry severe legal consequences) survive the non-discrimination provisions of bankruptcy. None, however, have adopted it. Eg. Florida Board of Bar Examiners re Kwasnik, 508 So2d 338 (Fla. 1987)(“ We recognize that Kwasnik may have continuing moral obligations to the family of the man he negligently killed, but to permit such considerations in a petition for admission to the Bar would require the making of such subtle distinctions that no satisfactory rule could be devised.”); Kwasnik v. State Bar of California, 791 P.2d 319 (Cal 1990) (“That the review department considered the circumstances surrounding the bankruptcy proceedings as well as petitioner's discharge of the judgment, therefore, does not mean it can refuse to certify him for admission without violating section 525(a)”) The Minnesota Supreme Court succinctly stated the federal restriction on state action in, In re Gahan, 279 NW2d 826, 831 (Minn 1979), “we cannot declare bankruptcy a wrong when Federal law has declared it a right.”
The trial panel was fully briefed in motions and hearing memoranda about the interplay between bankruptcy and bar admission. (ER 3-16) It observed that In 1990 the Bar was a contested-case party to Applicant’s bankruptcy, and in 1993, with full knowledge of the bankruptcy, admitted him to the practice of law. (Ex 22) The panel then correctly concluded that although it could examine the circumstances surrounding the bankruptcy to see if an applicant has unduly manipulated the federal bankruptcy system, it could not make failure to pay discharged debts grounds for denying reinstatement. After examining the surrounding circumstances it and found no credible evidence that Applicant’s resort to debt relief was anything other than straightforward.
Throughout the hearing the Bar concentrated on the discharged debt to Applicant’s ex-wife. The Bar paints a very sympathetic picture of the non-testifying ex-wife who suffered not only discharge in bankruptcy but the greater misfortune of having been married to an alcoholic. In the end, however, the Bar admits that according to law – bankruptcy law and otherwise – all creditors, whether individuals or entities, must be treated equally. (Tr 387-88) Each discharged creditor suffered a detriment. If Applicant has an enforceable moral obligation to repay his ex-wife, then he has an equally enforceable moral obligation to repay every creditor listed. To adopt such a theory, however, is to unmake the bankruptcy system altogether. If a state licensing body can deny an occupational license because liquefied moral obligations to pay money have survived discharge in bankruptcy, then the anti-discrimination provisions of federal law enacted after Perez have been gutted of any meaning whatsoever.
Implicit in the trial panel opinion is the wise conclusion that morality affects creditors and debtors alike. Since Deuteronomy, some sort of debt relief has been part of every civilized society. While paying one’s debts is clearly a moral duty, forgiving debtors and allowing them a new start is also crucial to a civilized social system. Applicant was unemployed for two years after the filing of the bankruptcy. (Tr 118; Ex 104) Shortly after he got sober and obtained work as a warehouseman his wife became seriously ill, leaving him as the sole support for the household. (Tr 119-122). She would not work again until 1994, a year in which Applicant’s hopes of returning to the legal field and a better income were crushed by the revelations about the thefts. (Tr 122; Tr 132) On very limited income the couple persevered, raising their teen aged son and living a simple frugal life. The family still today struggles to maintain their modest home. (Tr 127) The bankruptcy was no windfall to the Applicant. It was the first step in what turned out to be a long and difficult journey toward a better life. Not only is the Bar’s view of moral obligations surviving bankruptcy bad law, it is bad morality as well.
The Bar next argues that because Applicant is a member of Alcoholics Anonymous, he is ineligible for bankruptcy protection. (Tr 303; Tr 398) Step nine of AA’s twelve-step programs asks that members make amends to those they have injured unless to do so would harm them or others. (Tr 253; Tr 397) As part of completing this step, some AA members have repaid debts discharged in bankruptcy. (Tr 102) AA, however, is a religious organization. See, e.g., Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir. 1996) ("A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being."); Griffin v. Coughlin, 673 NE2d 98, 103 (N.Y. 1996) ([D]octrinally and as actually practiced in the 12-step methodology, adherence to the A.A. fellowship entails engagement in religious activity.) Its tenets are designed as personal guides to sobriety and spirituality, not as rules of contract and commerce. The twelve steps are personal religious goals, not rules for judging one’s fellow man.. (Tr 254; Tr 303; Tr 312-131) Many of the witnesses at the hearing were experienced and knowledgeable about AA and the twelve-step recovery process. Not a single witness suggested that AA prohibits a member from seeking bankruptcy protection, (Tr 101; Tr 303) or that third parties have a right to judge Applicant’s inherently reasonable interpretation of the ninth step. ( Tr 336 -38) Living on nine and ten dollar an hour jobs, Applicant decided that paying legally unenforceable debts from his past would unduly harm his current family. He thereafter focused his amends on those he had hurt the most. As every witness knowledgeable about AA emphasized, those difficult decisions are not subject to second guessing, either by the public or other members of AA.
Finally, the Bar argues that Applicant ought not to be admitted because he fails to feel guilty enough about the plight of those creditors discharged. (Tr 22) It bases this contention largely upon the fact that he made legal arguments during the reinstatement proceeding in favor of the policies underlying the federal non-discrimination statutes. (Tr 394-95) The witnesses, however, testified that he felt awful about the bankruptcy. (Tr 136; Tr 349, Tr 173; Tr 303) Thus even if the Bar’s legal theory has merit, it fails on the facts. The panel properly found that Applicant was forced by financial calamity into bankruptcy, felt remorseful about it, and that any subsequent failure to make financial amends has been due to his very limited income. (ER 31). It was a conclusion well supported by the evidence.
the hearing the Bar was so confident that it had found legal authority for its
approach to the bankruptcy issue that it handed out copies of In re Taylor, 293 Or 285,
647 P2d 462 (1982) to the trial panel. (Tr 396)
That confidence was misplaced. In
its opinion the panel correctly pointed out that the facts of the instant case
are far different from those in
It is clear from the record that the Bar has little use or sympathy for the non-discrimination provisions of the Bankruptcy code. However, in 1978 when Congress codified the wisdom of Perez as 11 USC § 525(a) it became the law of the land. The Bar’s “moral obligation” theory lacks support from any mainstream legal or moral system. Its trumpeting the plight of the Applicant’s ex-wife is an effective tug at the heartstrings, but ignores the fact that one cannot in bankruptcy pick and choose who gets discharged. The theory that AA members cannot seek bankruptcy protection has no support in law or in AA. And finally, its claim that the Applicant is cavalier about the plight of discharged creditors fails on the facts.
Applicant has admitted that he was a dishonest person at the time of the thefts and at the time of the bankruptcy. That does not mean, however, that every act he performed was immoral. In 1990, he was broke, unemployed and being sued for unpaid debts. (Ex 42 question c) The bankruptcy was a straightforward and legal response to that crisis. Today, after over ten years of recovery, he deals with finances and all aspects of life very differently. That does not mean, however, that the bankruptcy was either unwarranted or manipulative. It was unfortunate. He regrets that it happened, and should he be in a position some day to make amends to those injured he intends to do so. (Tr 173) However, he did nothing in conjunction with it that today still reflects negatively on his moral condition.
D. Applicant proved by clear and convincing evidence the elements necessary to be readmitted pursuant to BR 8.1(b) and (c).
This reinstatement is controlled by the provisions of BR 8.1(a), (b) and (c). BR 8.1 governs the procedure for reinstating lawyers who have resigned under Form A more than five years prior to the reinstatement application, to lawyers who have been suspended or remained suspended for more than six months, and to lawyers who have remained inactive for more than six months. It also applies to lawyers who were disbarred or resigned pursuant to Form B prior to 1996. The cases of disbarred lawyers and those like the Applicant who resigned under Form B deserve and get more scrutiny than others, but in the final analysis the required showings and burdens of proof are the same. See In re McKee, 333 Ore. 209, 213, 37 P.3d 987, 989 (2002)(Leeson dissenting). Mr. Onken, like every other applicant under BR 8.1, has to demonstrate by clear and convincing evidence his fitness to practice law according to the evidentiary standards set out in In re Griffith, 323 Or 99, 913 P2d 695 (1996). The panel properly held that he did so.
Griffith was the first disbarred lawyer to ever be readmitted in the state of
the outset, Mr. Griffith did not appear to be the kind of a person for whom
rehabilitation would come easily. In the
disciplinary proceeding Mr. Griffith argued vehemently that he had done nothing
Addressing the application for reinstatement the court stated that Mr. Griffith would have to prove a reformation of character by clear and convincing evidence during the time between the occurrence leading to disbarment and the application for reinstatement. The court wrote,
In a sense, a lawyer who is seeking
reinstatement after disbarment must prove by clear and convincing evidence not
only that he or she generally is of good moral character, but also that he or
she has overcome and will not again be influenced by the specific character
flaw that led to disbarment.
Mr. Griffith was charged with showing that he had reformed his character by overcoming
the “characteristics of greed, dishonesty and selfishness.”
In determining whether an applicant has proved a reformation of character, this court looks to many different types of evidence, including: character evidence from people who know and have had the opportunity to observe the applicant; evidence of the applicant's participation in activities for the public good; evidence of the applicant's forthrightness in acknowledging earlier wrongdoing, In re Jaffee, 319 Ore. at 178; evidence of the applicant's adequate resolution of any previous substance abuse problem, In re Rowell, 305 Ore. 584, 591, 754 P.2d 905 (1988); and evidence of the applicant's willingness to pay restitution to those people harmed by the applicant's earlier misconduct, In re Graham, 299 Ore. 511, 520, 703 P.2d 970 (1985).
Mr. Griffith was able to produce evidence on each of the five elements identified by the court. His evidence was stronger on some issues than on others. What is most striking about the case is the court’s application of the clear-and-convincing evidentiary standard. By common street standards Mr. Griffith’s program of reformation was neither vigorous nor lengthy. In view of the damage he did, one might have expected greater assurances of reformation. However, unlike those before him Mr. Griffith put on at least some credible evidence of reformation going to each of the required elements. And thus he succeeded where others had failed.
1. Character Evidence
seeking admission to any organization or social group hopeful applicants
commonly seek out prominent members of that group to vouch for the applicant’s
worthiness. Medical students seek out
doctors, graduate assistants seek out professors, and Elks club hopefuls seek
out leading Elks. Character issues arise
in all such admissions, but we generally do not hold that prominence in a social
grouping makes a person either moral or capable of detecting morality in
others. Mr. Griffith had been a
prominent member of the legal profession before his disbarment. Thus, he called other prominent members of
the legal profession to vouch for him. His evidence at the reinstatement
hearing included 24 witnesses and more than 300 favorable letters. The court noted, however, that repetitive
evidence that an applicant has good moral character -- with the exception of
the “slip” that led to disbarment -- does not materially advance the question
of reformation or address whether the applicant is likely to repeat his
A reading of the
The family witnesses included Applicant’s wife, his sister-in-law, his mother-in-law and his stepson. They painted a vivid picture of the squalor and moral depravity into which the Applicant had descended, and how in sobriety he had turned his life around. His wife, sister-in-law and mother-in-law testified to the squalid conditions in which he hid away from the world during the last years of his law practice and the subsequent years of unemployment: a time in which he was thoroughly distrusted by even those closest to him. (Tr 107-108; Tr 139; Tr 148) These images contrast dramatically to the high regard in which those witnesses now hold him. (Tr 125; Tr 142; Tr 149) The panel was particularly impressed with the testimony of Applicant’s stepson, now serving in the U.S. Navy, about the clean, supportive drug-free home in which he lived during his high school years. (Tr 284-85)
Two witnesses testified about Applicant in the workplace, both of whom had had daily contact with him for over nine years. Mr. Donnelly testified as to his trustworthiness, his participation in the social life of the company, his openness about his alcoholism, his willingness to help others, and his honesty, even when it endangered his job. (Tr 266-68) Mr. Brehm observed that he did not know many good people, but “Orrin happens to be one of them.” (Tr 157) This contrasts sharply with the secrecy, job changes and eventual unemployment that characterized his drinking years.
Applicant’s community involvement was largely associated with AA and recovery activities. Mr. Sweeny from the Oregon Attorney Assistance Program testified to Applicant’s regular participation and contributions to the OAAP both before and after the Form B resignation. (Tr 88-89) Mr. Hilton testified about how Applicant emerged from his shell in the AA group known as Scully’s eventually to become General Service Representative for the group. (Tr 234) He also testified how Applicant “did all the work” in the establishment of Hinten House, a non-profit corporation dedicated to finding permanent housing for AA groups like Scully’s. (Tr. 238)
And finally Jame Piat, a psychologist, testified to Applicant’s contributions on the internet to two high-level discussion groups: one dealing with pragmatist philosophy, (Tr 356-58) and the other with the psychology of communication. (Tr 360) He testified that Applicant’s writings on the relationship between AA and the philosophy of American pragmatism were well written, well researched and cogent. (Tr 359) He further testified that Applicant’s moderation of the group Netdynam had endeared him to academics and psychologists around the world. (Tr 361) At the regional level Applicant has enrolled in the graduate gerontology program at Portland State University (Tr 163) and when circumstances permit hopes to work for the benefit of older addicted populations. (Tr 195-96)
In its opinion the panel found the testimony of these witnesses consistent and believable. On the ultimate issue of Applicant’s current trustworthiness and moral fitness the witnesses were unanimous. However, it was the experts who put it most concisely. Dr. Horowitz testified that Applicant has “more than the usual self-knowledge and integrity.” (Tr 304). And Dr. Byrd, at the end of his assessment, writes “Honesty is the key to recovery – in fact absolutely necessary and emphasis is placed on this from the beginning of treatment and is a hallmark of continued recovery. He demonstrates this in his character at this time – he has integrity.” (Ex 111).
2. Forthrightness in admitting earlier wrongdoing.
The Bar is correct when it asserts that forthright admission of previous wrongdoing is essential to a claim of reformation. (Bar Brief p. 10). Applicant in this proceeding has arguably admitted his crimes and his character faults more often and in more different ways than any Applicant for readmission in Oregon history. He left the practice of law voluntarily. He never denied that he was guilty of the misconduct charged. He never maintained that his misconduct was an uncharacteristic “slip.” He never blamed the bar or others for his troubles, and he accepted the sanction of disbarment as the proper legal consequence of his actions. However, the requirement of forthright admission is not a mandate for obsequiousness, and “failure to grovel” is not a bar to readmission. Furthermore, forthrightly admitting wrongfulness does not require an Applicant to disavow honestly held beliefs. Applicant here has admitted his misdeeds, but is taken to task because he refuses to disavow his beliefs about alcoholism and recovery.
In Griffith, the applicant argued vehemently during the disbarment
that he had done nothing wrong. He
discovered the error of his ways only in the years that followed. At his reinstatement hearing he testified
that he “felt bad” about the harm he had caused. There was additional evidence that he had
never blamed the Bar or the court for his troubles. His admissions were neither self-deprecating
nor dramatic. They were simple and
The requirement of forthright admission, however, cannot be interpreted to require an applicant to forego honestly held opinions or admit facts that the applicant does not believe are true. The court in arguably the most famous reinstatement ever, In re Hiss, 333 NE 429, 437 (Mass. 1975) wrote of the man required to admit a criminal act he honestly believes he did not commit.
For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law. . . . Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to commit perjury by admitting to a nonexistent offense (or to an offense they believe is nonexistent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the bar, would encourage corruption in these latter petitioners for reinstatement and, again paradoxically, might permit reinstatement of those least fit to serve.
Recognizing the logic of this position the court in In re Grier, 737 A2d 1076 (Md. 1999) declined to fault an applicant for a sincere belief that his embezzlements had been caused by alcoholism. Good men can disagree about what part alcoholism plays in the life of both lawyers and embezzlers.
Applicant is a long time member of Alcoholics Anonymous and holds beliefs about the relationship between alcoholism and misconduct that mirror those of AA. He believes that alcoholism is a disease that emerges in people who have certain underlying character defects. As the disease progresses dishonesty becomes one of the primary tools sufferers use to hide it. He believes that he can only remain free of the disease by turning his back on dishonesty and addressing the arrogance and self-centeredness that led to his alcoholism in the first place. Thus, he did not assert that alcoholism excused his thefts. He does believe, however, that his previous dishonesty emanated from his disease and that his nine years of sobriety testify in a positive behavioral form that he has resolved many of the character issues that brought him so much pain in years past.
Opinions on alcoholism, recovery, and crime vary considerably and despite a hundred years of study policy makers still struggle with the issues. One can agree or disagree with Applicant, but one must accept that his views are both sincerely held and within the mainstream of current thought on addiction. The fact that he connects his alcoholism to his overall dishonesty during his drinking years as well as the specific embezzlements does not mean that he is sidestepping or minimizing his wrongdoing.
The Bar also asserts that the Applicant has not forthrightly admitted his wrongdoing because he cannot recall the details of his thefts and because he has stated on occasions that he considers some of his misdeeds outside his role as a lawyer to have been of equal or greater moral consequence. The former is a factual issue. The panel found him truthful and the medical experts gave ample testimony that memory impairment is not unusual for an alcoholic of Applicant’s type. The moral issue is beyond the pale of this proceeding. Applicant was disbarred for the most serious possible breach of the obligation he owed his clients. He has admitted that he similarly breached obligations he owed his wife, his parents, and his community. These are close calls, and there is nothing to be gained by splitting ethical hairs and forcing him to aver that what he did to Marv Tonkin Leasing Company carries greater moral condemnation that what he did outside the legal profession. Despite the seriousness and solemnity of this proceeding, it concerns only one aspect of Applicant’s life. He must make peace with his family and his community in other forums.
3. Restitution to those harmed by the misconduct.
The two thefts that led to the disbarment in this case totaled just under a thousand dollars. When notified of the problems by Terry Baker, the attorney for Marv Tonkin Leasing, Applicant paid back the money and apologized in writing to the victim. (Ex 29; Ex 30; Ex 32; Ex 36; Ex 37) The victim has made no further complaint.
The Bar has suggested that the Applicant has failed to make proper restitution for other shortcomings. It suggests that he ought to repay the creditors discharged in bankruptcy. It also faults him for not making apologies to his ex-wife and Mr. Melkonian, the man who employed him at the time of the first theft. As the panel suggests, Applicant’s case for reformation would be stronger if he had done these things. His behaviors, however, must be viewed in context. As Mr. Sweeny and Dr. Byrd noted, it was very difficult for him on warehouseman’s wages to pay the legally unenforceable claims of ex-wives and other discharged creditors while still being fair to the family that stood by him emotionally and financially during the darkest hours.
The apologies certainly could have been made. One must, however, recognize the psychological difficulty. The Applicant and his ex-wife had gone through a difficult and painful divorce with harsh things said on both sides. Her request of him was simply to be left alone, and he honored that wish. (Tr 173) Mr. Melkonian, Applicant’s previous employer, had lost at every stage of lengthy Bankruptcy litigation intended to obtain from the Appicant a few hundred dollars of back rent. The litigation included Mr. Melkonian’s unopposed appeal to the Bankruptcy Panel for the Ninth Circuit. (Ex 42 Question 7c). Subsequently he was the complainant in the proceeding that led to Applicant’s disbarment and wrote several letters over the years opposing any sympathy or leniency for the Applicant. (Ex 33; Ex 35; Ex 40; Ex 62) Applicant admitted he should have had the psychological strength to put aside the acrimony connected to these two relationships and made apologies. (Tr 174) He did not. He suggests only that taken in context these failures are not significant enough to seriously undermine the solid record of reformation that he has in other respects put together.
Because ability to pay restitution can be the result of situations that have nothing to do with morality, restitution cannot be the absolute determinant of reformation. As observed a long time ago, “A thoroughly bad man may make restitution, if he is able, in order to rehabilitate himself and regain his position in the community; and a thoroughly good man may be unable to make any restitution at all.” In re Harris, 95 A 761 (NJ 1915). Restitution must be viewed in context. Applicant paid the victim of his thefts as soon as he realized what he had done. Outside of his role of a lawyer has made his amends and apologies imperfectly. He submits, however, that in the totality of things, what he has done is enough.
4. Activities for the Public Good
The third evidentiary focus point from Griffith is activities for the public good. This was not Mr. Griffith’s strong point. The evidence was that Mr. Griffith had done some conservation work associated with the Hell’s Canyon Preservation Council, that he had coached in an “over-40” soccer league, and that at work he had used his experience in the disciplinary process to teach others the consequences of misconduct. In this readmission, Applicant’s activities for the public good may not have been as visible as Mr. Griffiths, but they were more extensive and more demanding.
Predictably, Applicant’s work for the public good has been done primarily in the world of addiction and recovery. At the Oregon Attorney Assistance Program where alcoholic lawyers and judges from every type of practice gather to help each other, he has brought solid recovery to the Monday night meetings since 1993. (Tr 83; Tr. 89). He has written a book about his experience in residential alcohol treatment. (Tr 116) He has produced scholarly work concerning the philosophy of AA in conjunction with an internet group of professors who study the writings of John Dewey. (Tr. 357-358; Ex 109) In addition, he is the leader/moderator of an international internet group that studies communication theory and group psychology. (Tr 118; Tr 361; Ex 107; Ex 108). At work he made himself available to help co-workers who were going through drug and alcohol problems, (Tr 155; Tr 270) and he is currently enrolled in a graduate program in gerontology at Portland State University. (Tr 163)
The activities above pale in comparison, however, to the time and effort he has put into supporting the AA group known informally as Skully’s. It is a tough-love group that takes on only the hardest cases and after fifty years still survives, stubbornly independent, on some of the meanest streets of Portland’s east side. (Tr 231) Skullys is hard core AA. (Tr 227: Tr 330) Applicant bonded with the group shortly after emerging from residential treatment. (Tr 251; Tr 330). For three years he served as the elected representative to the regional body that sets policy for AA. (Tr 234-35) When concerns arose about the future of the group due to lack of a permanent home, he was instrumental in starting Hinten House, an Oregon non-profit corporation dedicated to finding and financing a permanent home for Skullys. (Tr 236) He served on the board of directors of Hinten House and was the corporate secretary. (Tr 238) These were not honorary positions. They involved real work. (Tr 238) In addition to attending board meetings, he produced promotional materials, wrote grant applications, wrote the 501(c)(3) tax-exempt status application, and hosted the corporate web page. (Ex 105; Ex 106)
Applicant’s involvement in his community is a complete turnaround from his law practicing days. His wife testified that in those days it was, “Go to work. Go to the bar. Go home. Smoke pot. Drink beer. Go to bed. Get up. Do the same thing the next day . . ..” (Tr 108) That does not leave much time for community service. Today in a given week, Applicant might well chat with alcoholic lawyers in the pleasantly decorated meeting rooms of the OAAP, work at Skully’s among some of the most impoverished and desperate alcoholics in Portland, pursue his degree in gerontology, tend to the business of Hinten House, and study on the internet with an international group of scholars. The communities he has touched have been enriched by his involvement. And in the process so has he.
5. Resolution of Substance Abuse Problems
Although Mr. Griffith did not have a significant substance abuse problem, the Applicant and the legal profession do. The Bar concedes at one point in the hearing that Applicant was an alcoholic at the time of the embezzlements, that he subsequently overcame alcoholism, and that his recovery from alcoholism reflects positively on his character. (TR 14). A recent Oregon study now suggests that should he return to the practice of law, he will be better than the norm at avoiding malpractice and disciplinary complaints. In addition, he has more years of abstinence than case law requires.
Michael Sweeny, a man who has counseled thousands of alcoholic Oregon lawyers in his thirteen years at the OAAP, testified that lawyers suffer from addiction at twice the rate of the general population, and that one in five lawyers suffer from chemical dependency of one sort or another. (Tr. 83) In the Oregon cases Mr. Sweeny studied, seventy-percent of client security fund claims arose out of drug and alcohol problems. (Tr 93) One must imagine that Disciplinary Counsel’s Office is as familiar with the disease and its effects as are those at the Client Security Fund. Oddly, the intelligence of the high functioning alcoholic works against his or her recovery in that it increases the sophistication of the arguments they can use to deny their disease. (Tr 87) This permits them to do a large amount of damage before seeking help. Although they have difficulty getting sober, those who manage to stay sober for five years or more have a malpractice claim rate five percent lower than the typical Oregon lawyer. (Tr 79-80) Thus, in malpractice terms, and probably in disciplinary terms, the lawyer with five or more years of recovery from alcoholism poses less of a threat to clients and the public than the lawyer who has never suffered from the disease at all.
Dr. Walton Byrd, arguably the most prominent addiction specialist in Oregon, reiterated that among professionals the disease stays hidden until the very end, not appearing in the workplace until the latest stages. (Tr 323). Values are compromised and people do things they ordinarily would not do. (Tr 325) Yet in recovery people reestablish their values and redefine new ones. (Tr 245) Thus, in professions such as medicine, dentistry, pharmacy, aviation, veterinary medicine and nursing alcoholics are moved out of treatment and back into their professions as quickly as possible. He opined that if a person with Applicant’s record were attempting to return to any of those occupations, he would “sail right through” (with the requirement that he “pee in a bottle”). (Tr 351-53)
Horowitz termed Applicant’s condition at the time of the thefts as a free
standing substance abuse complicated by severe depression. (Tr 296)
Today, he testified, Applicant embodies what Alcoholics Anonymous stands
for. (Tr 304). Dr. Byrd found alcohol dependence in complete
remission. (Ex 111). Setting the medical approach aside, Applicant
has more years of abstinence than any other
In Griffith the court specifically identified resolution of substance abuse problems as one of the matters a court ought to consider in reinstatement proceedings. Applicant presented powerful evidence that substance abuse played a major role in the character defects that led to his resignation from the Bar, and that resolution of the substance abuse problem has meant for him a transformation to honesty, integrity and reliability.
E. Knowledge and learning necessary to
practice law in
Although Griffith currently controls the analysis for the readmission of disbarred lawyers the case is really an explanation of the readmission requirements contained in BR 8.1(b). The same rule, BR 8.1(c) also requires that the Applicant show has the “requisite learning and ability to practice law in this state.” To that end the court can order that an applicant take the bar examination or complete a course of continuing education. The Bar has not in its pleadings or elsewhere ever alleged that Applicant lacks sufficient learning to practice law. (ER 19-20) This omission is intentional in that Applicant’s intellectual acumen and degree of learning become apparent to anyone who has more than casual contact with him.
In certain respects, honoring both the letter and the spirit of an order of disbarment makes it very difficult to subsequently demonstrate current competence to practice law. Thus, in In re Hiss, 333 NE2d 429 (Mass. 1975) the court observes that earning a living in fields other than law demonstrates a sincere wish to abide by the courts decree of disbarment. The court observed that Mr. Hiss had worked diligently as an office supply salesman and had earned the respect of his co-workers in that occupation. In addition to quietly and modestly earning a living he had also stayed intellectually active. The court observed, ”He has pursued his scholarly interests through a program of diverse lectures and the publication of articles and books.” 333 NE2d at 439 Like Mr. Hiss, Applicant in this case has honored both the letter and the spirit of his Form Br resignation by working outside of the legal profession while remaining intellectually active.
The evidence showed that Mr. Onken graduated cum laude from Willamette University of Law and served as Editor-in-Chief of the Willamette Law Review despite being alcohol impaired at the time. Mr. Melkonian, who generally has very little good to say of the Applicant, offers nothing but respect for Mr. Onken’s intelligence and legal analysis. (Tr 68) Applicant wrote in his trial memorandum as follows:
While away from law he has received in his home all Oregon Appellate Cases, all Ninth Circuit Cases, all U.S. Supreme Court Cases, and selected cases in the fields of intellectual property and elder law. He has participated in email discussion groups dealing with intellectual property, internet law and legal ethics.
Unfortunately, in his nervousness, he neglected to testify to these facts at trial. Mr. Bannon, the chair of the trial panel, commented on Applicants obvious intelligence and remarked to him that although gone from the practice of law for over ten years “you’ve hardly missed a beat in terms of your ability to analyze cases and present them cogently.” (Tr 179) The trial memorandum that he presented to Mr. Bannon prior to the hearing included a fifty-state analysis of reinstatement after disbarment as well as a complete analysis of the interplay between state readmission rules and the federal bankruptcy code.
Since recovering from alcoholism he has engaged in a wide variety of intellectual pursuits. He is pursuing a graduate degree from Portland State University. Through much of the time away from law Applicant turned to the internet as an outlet for his intellect. He participated in high level discussions of philosophy, (Tr 357-58) wrote a well received article about the underlying principles of recovery, (Tr 359), and led a group of psychologists and scholars interested in communication theory. (Tr 361; Ex 107; Ex 108).
The trial panel opinion advised that Applicant be required to take and pass the Oregon State Bar before being readmitted. He has no objection to doing so. He respectfully suggests, however, that an extended program of Continuing Legal Education classes might better protect the public. The Applicant has always been good at analysis and the type of reasoning that written tests require. He has shown less aptitude for the practical aspects of law that get emphasized in Continuing Legal Education courses. Both options are time consuming and expensive, but requiring Applicant to complete a battery of CLE practical skills courses would strengthen his weaknesses. The Bar exam simply tests his strengths.
F. Other Conditions
The trial panel ordered that in addition to meeting education requirements Applicant’s reinstatement was to be “conditioned on Applicant’s agreement to enter a professional recovery contract to be administered by the Professional Liability Fund and include random urine monitoring, continued attendance at the meetings of Alcoholics Anonymous, and any other condition imposed by the Fund in its reasonable judgment for a period of two years.” With the exception of urine testing, these conditions are not significantly different from the conditions imposed upon the Applicant when he was admitted in 1993 (Ex 23). These conditions, particularly the recovery contract and the urine testing, adopt the suggestions from the testimony of Dr. Walton Byrd regarding the way other professions tackle substance abuse issues. (Tr 350) There is an argument that after ten years of sobriety the Applicant is past the need for urine testing. Nevertheless, he would be pleased to take part in any plan that would bring to the law some of the successful strategies Dr. Byrd has seen succeed in other professions.
In discussing the education and recovery contract recommended by the panel, the Applicant wants to emphasize that the panel suggested conditions only after finding that Applicant had met his burden of proof on the ultimate facts. That is, “he has sustained his burden of proof that he has reformed the deficiencies in those character traits that led to his disbarment by clear and convincing evidence.” (ER 32 ) Thus, this court does not face the prohibition on conditional reinstatement found in cases such as In re Gortmanker, 308 Or 482, 494, 782 P2d 421, 428 (1989) and In re Rowell, 305 Or 584, 592, 754 P2d 905 (1988) where the applicants failed in their primary task of proving moral fitness. The panel was convinced of Applicant’s reform and current moral fitness. Once it had found that Applicant was morally fit, it properly sought to provide the public with assurance that the Applicant would become educated and stay sober. These are wise and common sense conditions. See In re McKee, 333 Or 209; 37 P3d 987 (2002)
In 1994, when Applicant submitted his Form B resignation, he included with it a brief letter setting out his view of the circumstances surrounding the thefts, his alcoholism and his recovery. (Ex. 40f). At the end of that emotional letter he took responsibility for his misdeeds and accepted the legal consequences. Seven years later he stood before the trial panel. In front of the panel he once again took responsibility for his past and accepted the law as he found it. He then presented a case that was in every respect consistent with the views expressed in that letter. The facts had changed in that he had seven more years of lawful behavior, community service and sobriety under his belt, but in all other respects his view of the facts and law remained the same. That is integrity.
The Bar has chafed under the restrictions of current law and presented a view of alcoholism that has no support in the testimony or in science generally. It calls the portion of BR 8.1 which allows this reinstatement application a “loophole .” (Tr 380) It only once in its brief before this court mentions the legal requirements for reinstatement outlined in Griffith. And, in closing argument before the Trial Panel it left the law altogether with the argument, “It’s this panel’s subjective call to make in this case. It’s the Supreme Court’s subjective call to make when it gets to them on de novo review.” (Tr 399) The Bar simply does not like the current law governing reinstatement. With no instances of misconduct in over a decade , the Bar had to bootstrap the past into the present by alleging failures to admit or make amends for ten-year old behaviors. That attempt, however, failed on the facts. And it seems the Bar is as unsympathetic to modern views of alcoholism and drug addiction as it is to reinstatement. Throughout the proceeding it begged for a view in which alcoholics are either always drunk or are recognizable in the workplace by a stupor which deprives them of intelligence, alertness, and the ability to distinguish wrong from right. Unfortunately for the many professions that suffer dearly from the disease, this is not now and never has been how alcoholism works.
The Trial Panel did not share the Bar’s frustration with the law, its resistance to modern views of alcoholism, or its interpretation of the testimony. The Panel found that “Applicant has acknowledged his wrongdoing, has taken steps to reform his character, and those changes in conduct and personality have been confirmed by professional and lay witnesses who have been in a position to observe the Applicant in all areas of his life.” (ER 31 ) The Panel continued by noting that despite expert testimony that the conduct engaged in by the Applicant was typical of the alcoholic, Applicant maintained complete responsibility for the thefts. And finally, it wrote, “The Applicant has been faithful to his sobriety, and has strengthened his relationship with his family and co-workers. The evidence of reformation of character is not only clear and convincing, it is substantial and impressive . . ..” (ER 32 ) In short, Applicant has met and surpassed the current legal standard for readmission. By confirming that conclusion this court will do more than ratify the factual and legal conclusions of the Panel. It will tell members of the Bar that there is settled law governing BR 8.1 reinstatements and that the law will be applied fairly and impartially to all who come before the Court.
Respectfully submitted this ________ day of July, 2002
Orrin R. Onken