IN THE SUPREME COURT
OF THE STATE OF OREGON
ORRIN R. ONKEN,
For Reinstatement as an Active
Member of the Oregon State Bar
Nature of the Case
This is a contested reinstatement proceeding. In January of 2000 Mr. Onken applied for admission to the Oregon State Bar under BR. 6.1(e) and BR 8.1(a)(iii). During the year 2000 the Bar investigated the applicant and concluded that he currently did not have “good moral character and general fitness to practice law” as required by that rule. Mr. Onken contested this conclusion and on September 26, 2000 the application for reinstatement was referred by the Oregon Supreme Court to this Disciplinary Board for hearing.
The evidence at the hearing will show the following series of events:
1. Mr. Onken entered Willamette University College of Law in 1979 and graduated in 1982. He did well in school, graduating cum laude and served as Editor-in-Chief of the Willamette Law Review.
2. After graduation he went to work for the firm then known as Tonkon, Torp, Galen, Marmaduke and Booth. His performance in that job was unsatisfactory.
3. In 1984 Mr. Onken took a job with Bruce Melkonian and Associates. Mr. Melkonian operated a small collection practice on Portland’s east side. The change of jobs meant a cut in income and social standing.
4. The collection practice did not thrive and by 1987 Mr. Onken was the only employee. When the practice could no longer justify Mr. Onken’s salary, he and Mr. Melkonian changed their relation from one of employer and employee to one of tenant and landlord. Once again Mr. Onken’s income dropped. Mr. Onken and Mr. Melkonian continued a small general practice, each man working independently out of the same suite until 1989.
5. In 1988 Mr. Onken’s marriage to his wife of fifteen years ended. The breakup of the marriage was the result of Mr. Onken’s failure to live up to a wide variety of the normal obligations a husband owes a wife. He moved from the home he had owned into an apartment where he cohabitated with the woman who would become his current wife.
6. Mr. Onken married Lois Patterson on April 21, 1989. They are still married.
7. In the spring of 1989, Mr. Onken took a job with Hyatt Legal Services.
8. On the last day of 1989 Mr. Onken voluntarily left the practice of law and has not practiced since that day.
9. Shortly after leaving the practice of law Mr. Onken declared bankruptcy. His creditors included lending institutions, malpractice claimants, his ex-wife, Mr. Melkonian and the Oregon State Bar. All listed debts were settled or discharged. The case included adversary proceedings involving Mr. Melkonian and the Oregon State Bar.
10. Mr. Onken was suspended from the Oregon State Bar in 1990 for failure to pay Bar assessments.
11. Mr. Onken suffered from increasingly severe untreated alcoholism throughout law school and all times thereafter.
12. For over two years after leaving the practice of law Mr. Onken was unemployed and possibly unemployable due to alcohol and drug abuse.
13. On March 9, 1992, Mr. Onken entered the Laurelhurst Treatment Center, a residential treatment center in Portland, Oregon that used the twelve-step approach for the treatment of alcohol and drug addiction.
14. After being released from Laurelhurst, Mr. Onken associated himself with a chapter of Alcoholics Anonymous near his home. A year after leaving Laurelhurst he was the only one of those in his treatment group who was still abstinent. As of this hearing over nine years later, he is still abstinent and still associated with the same AA group.
15. In the fall of 1992, Mr. Onken took a position at the W.L.May Company in Portland, Oregon as a warehouseman. He held that job until September of 2001.
16. In the winter on 1992 Mrs. Onken became ill and was unable to work for approximately two years. Her illness involved many trips to the hospital and severely limited her ability to do even simple household tasks.
17. In January, 1993, Mr. Onken applied for reinstatement to the Oregon State Bar. At that time he advised the Bar of his previous treatment for alcoholism. He was readmitted conditioned upon his continued participation in AA and his being monitored by Don Muccigrosso of the Oregon Attorney Assistance Program. Mr. Muccigrosso asked that Mr. Onken attend weekly AA meetings at the offices of the Oregon Attorney Assistance Program. After reinstatement, Mr. Onken did not practice law. He did, however, comply with the terms of his probation and keep current on his Continuing Legal Education obligations.
18. In early 1993, Mr. Onken 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. Mr. Onken connected with academics from around the world and was able to study informally under some internationally recognized scholars in philosophy and psychology. By 1996, Mr. Onken was moderator of the internet forum “Netdynam,” a group hosted by St. Johns University which has both produced and been the subject of scholarly papers in the fields of group psychology, computer mediated communication, and linguistics.
19. In 1994, Mr. Onken moved his wife and step-son from the small apartment in which they had done their drinking to a modest house in the Eastmoreland neighborhood of Portland. By this time he and his wife had cut ties with their previous social groups and had established a sober home in which all residents attempted to live according to the principles he and his wife had accepted through their participation in Alcoholics Anonymous.
20. In the spring of 1994 Mr. Onken 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. When notified of the conversions in 1994 he immediately repaid the injured client and apologized for his actions. At approximately the same time Mr. Melkonian reported the matter to the Bar. Shortly thereafter a formal complaint was filed against Mr. Onken seeking disbarment. Due possibly to the drama of intervening events, including the divorce, loss of job, bankruptcy and years of substance abuse, Mr. Onken did not in 1994 recall the thefts or the circumstances that might have motivated them. However, based upon his examination of the documents and his recollection or 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. After consultation with counsel and examining the applicable law himself, he executed a Form B resignation in lieu of contesting the complaint against him. Mr. Onken himself drafted the resignation and in it admits to all elements of conversion including all mental state elements. Although given the opportunity, he declined to offer his alcoholism as the cause of the thefts, an excuse for his behavior, or a mitigating factor in determining sanctions.
21. Five years elapsed. During this period of time Mr. Onken 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. For three years he served as the General Service Representative for his AA group. He continued to be active online and as an adjunct to those activities became skilled in building and configuring small computer systems. Much of his written material in the fields of recovery, psychology and associated social sciences is available at loris.net, a domain owned an operated my Mr. Onken. Motivated by his informal studies in psychology, in 1999 he began a graduate program in gerontology at Portland State University where he currently maintains a 4.0 grade point record. He is still the moderator of Netdynam.
22. In January 2000, Mr. Onken made the application to be readmitted to the Oregon State Bar. In that application he asserted that he has overcome the dishonesty and related character defects that characterized his personal and professional life in the late eighties. That application is the subject of this hearing.
The Reinstatement Disbarred Attorneys in Oregon
The Oregon Supreme Court has held that the rehabilitation and readmission of disbarred lawyers is not only possible, but achievable. In order to be readmitted the applicant must prove by clear and convincing evidence that he or she has overcome the character defects that led to the disbarment. Such proof will be of the following types: (1) character evidence to the effect that the applicant is currently of good moral character; (2) evidence of the applicant’s forthrightness in acknowledging previous wrongdoing; (3) evidence of restitution to those harmed by the misconduct; (4) resolution of any existing substance abuse problems; (5) evidence of the applicants activities for the public good, and (6) evidence that the applicant has the learning and ability to practice law in the State of Oregon. Of particular interest in a case involving lawyer dishonesty will be whether the applicant has taken part in a course of learning or rehabilitation that specifically addresses dishonesty and related character defects.
A brief history of readmission in Oregon.
Prior to 1996, the readmission of disbarred lawyers in Oregon was a purely theoretical matter. The Oregon Supreme Court had on many occasions alluded to the possibility of rehabilitation, but had never actually allowed a readmission. Then the court decided In re Griffith, 323 Or 99, 913 P2d 695 (1996). The court in Griffith, not only permitted the first readmission of a disbarred lawyer, but also showed that the hurdles to such readmission are not as insurmountable as previous practice suggested. In so ruling the court affirmed many previous statements about its belief in rehabilitation and showed in a concrete case that readmission after disbarment is more than just theory. In recognizing the real life availability of rehabilitation for a disbarred lawyer the court implicitly disavowed previous statements suggesting that human behavior is controlled by innate character traits that once expressed can never be overcome. It opted for free will over predestination and hope over cynicism. People can and do change.
The gap between theory and practice was noted by Judge VanHoomissen dissenting in In re Jaffee, 319 Or 172, 874 P2d 1299 (1994). He wrote,
This court has recognized, at least in theory, that an applicant guilty of unlawful or unprofessional conduct may establish present good moral character through sufficient proof of rehabilitation. In re Rowell, supra, 305 Or at 588. n13
[n13] However, my research indicates that this court has never reinstated a lawyer after disbarment.
Judge VanHoomissen’s research was correct. Although the court had addressed the rehabilitation of attorneys subject to discipline as well as the rehabilitation of first time applicants to the bar who had committed acts that would have resulted in disbarment, it had never faced a disbarred attorney who was sufficiently rehabilitated to warrant reinstatement. Griffith changed that.
In Griffith, there was much in the applicant’s life that had to change. He was found guilty of four causes of dishonesty and other violations. The dishonest scheme that led to his disbarment contributed significantly to the insolvency and collapse of the bank his firm represented. The court noted that “the sums involved are so large that they would overwhelm the average individual,” and that at least two elderly victims had been forced from retirement back into the workplace as a result of the attorney’s misconduct. In re Griffith 304 Or. 575, 636, 748 P2d 86 (1987). The Federal Deposit Insurance Corporation ended up taking over the bank and salvaging what it could for depositors and investors. The court in disbarring Mr. Griffith characterized the case as one of blind faith in unsavory friends coupled with “old-fashioned greed.” Id. at 638.
At 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 wrong, and although he generally cooperated with his investigators his answers to Bar inquiries were less than truthful. Griffith, 323 Or. at 103. Mr. Griffith’s fraud took place in 1980 and 1981. The disciplinary hearing took place in 1986. He continued to practice law up to and even during the disciplinary proceedings. One can reasonably conclude that Mr. Griffith neither understood nor addressed his character defects until long after the fraud and until well after he had be expelled from the legal profession.
Exactly five years after being disbarred, Mr Griffith applied for reinstatement. He would end up being the first disbarred Oregon lawyer ever reinstated.
Addressing Mr. Griffith’s application for reinstatement the court stated the 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. Id. at 106.
Thus, Mr. Griffith was charged with showing that he had reformed his character by overcoming the “characteristics of greed, dishonesty and selfishness.” Id. at 107. The court then laid out a road map for proof or reformation.
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 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.
Although in a certain sense a summary of previous law, Griffith made two significant points. First, it taught that reformation of disbarred lawyers is both possible and achievable. Second, it laid out a rehabilitative scheme that leaves hope for any expelled lawyer truly willing to earn his way back to bar membership. The rehabilitative requirements for readmission force a disbarred lawyer to face, in concrete and human terms, the gravity of his actions. Griffith forces the legal profession to recognize, in concrete and human terms, that people can and do change.
Second, Griffith showed that the case to be made by an applicant for readmission after disbarment is neither complicated nor dependent upon any one vision of human morality. Clear and convincing evidence of moral fitness does not mean that fact-finders can impose their own moral, social or philosophical views upon the applicant. Moral fitness is a word of legal art. In re Nash, 317 Or 354, 362 n8, 855 P2d 1112 (1993). Proving moral fitness in a reapplication proceeding is a legal process governed by carefully crafted law.
Mr. Griffith had been a prominent member of the legal profession before his disbarment. Like anyone else he looked for support during his troubles among those who were like him. Thus, he called other prominent members of the legal profession to vouch for him both at his disbarment and during his application for readmission. His evidence at the readmission 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 misconduct. Griffith, 323 Or. at 108. Disregarding much of the boilerplate character evidence the court looked for testimony that the applicant had changed both his attitude and lifestyle.
The Griffith case is not the first time the court has recognized the shortcomings of boilerplate character testimony from one’s professional colleagues. The inquiry in reformation proceedings focuses on acts that demonstrate a change. Witnesses to those acts will be those who have worked and lived with the applicant during the period of reformation. Thus, the testimony of employers, coworkers, In re Jolles, 235 Ore. 262, 275; 383 P.2d 388, 394 (1963)(“[P]roof must be made through the appraisal of those with whom the petitioner has worked and lived.”) relatives, In re Rowell 305 Ore. 584, 591; 754 P.2d 905, 908 (1988), and spouses, In re Holman 297 Ore. 36, 51; 682 P.2d 243, 259 (1984) tend to have greater probative value than the testimony of those who have know the applicant only through social or professional interaction.
When 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 our 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, a prominent lawyer himself, demonstrated clearly that moral vision and socio-economic success do not go hand in hand. Doctors vouch for doctors, lawyer for lawyers, and Elks for Elks because the one doing the vouching presumably knows whether the applicant has the knowledge, social skills, and attitudes the organization expects. The line of cases leading to Griffith suggests that this common type of character testimony is of marginal use where the issue is one of reformation. Instead, the court needs to hear from those who have seen on a day-to-day basis how the applicant has fulfilled the obligations of work, family and community since the misconduct. In readmission cases there is seldom much question whether the applicant knows the law and the social norms of lawyering. The question is one of moral fitness. And on that issue family, coworkers, and neighbors possess the strongest evidence.
The character evidence given weight by the court in Griffith was of the following types: the lawyer who supervised the FDIC litigation testified that Mr. Griffith had reformed his tendencies toward greed, selfishness, and dishonesty by settling the claims against him with his own money; unidentified witnesses stated that he had changed his lifestyle so that financial gain was no longer a paramount concern; and several witnesses noted that he diligently worked as a paralegal during the first years of his disbarment. Griffith, 323 Or.at 109. The change in Mr. Griffith was admirable, but far from dramatic. He forthrightly strived to put right what had gone wrong, and changed his attitude regarding financial gain. He continued, however, to work in the same law firm and presumably within the same social milieu that had nurtured his previous dishonesty. No longer a lawyer, he worked on the periphery of the profession. It is difficult from the case to tell whether the change of lifestyle was due to reformation or simply to the disbarment itself.
Evidence of morality, particularly of reformation, is not adducible in positive form. In re Jolles, 235 Ore. 262, 275, 383 P.2d 388 (1963). The same facts can point toward and away from reformation. It is hard to say whether the paralegal work done by Mr. Griffith after disbarment was undertaken humbly or was simply humbling. Although disbarment is for protection of the public, it can feel like punishment to the one disbarred. Suffering and penance look the same from afar. To tell the difference we rely upon the testimony of those who have lived and worked most closely with the accused during the reformation period.
The character evidence in the case before this disciplinary panel will be of four types: co-workers, internet contacts, colleagues in community service, and family. Those four groups cover Mr. Onken’s work life, his intellectual life, his service to the community, and his family life. He will attempt to present representative witnesses rather than numerous ones. During the presentation of character evidence, he will show positive efforts in all four areas to eliminate the character flaws that led to his disbarment.
Forthrightness in acknowledging earlier wrongdoing.
Today forthright admission of earlier wrongdoing is one of the elements that an applicant for readmission must prove. That was not always the case. Over the last half century the law in this area has done a complete turnaround. In the fifties and sixties, a disbarred lawyer seeking readmission had to demonstrate that his disbarment was wrongful. Today he must forthrightly admit that it was just.
Nearly half a century ago, the Court wrote in In re Koken, 214 Or 357, 360-361, 329 P2d 894 (1958).
"'* * * While it is, of course, always possible that a disbarred lawyer may be reinstated, this, it is believed, should almost never occur except where the court concludes that the disbarment was erroneous.
The above was quoted approvingly by the Court ten years later in In re Gregg, 252 Or 174, 179, 180, 448 P2d 547 (1968) in which the court went on to say.
If it appears likely that a disciplined attorney may become rehabilitated within a few years and, therefore, should be permitted to resume the practice of law, suspension and not disbarment is the appropriate discipline
Finding that Mr. Gregg had been alcohol-free for over two years and was likely to remain so, the Court withdrew the disbarment and imposed a three years suspension. Subsequently, in cases such as 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), the court disavowed the result in Gregg holding that chemical dependency does not excuse the malfeasance or mitigate the sanction for misappropriation of funds. At the same time, however, the Court took pains to point out that disbarment was not permanent, Id. at 125 n. 18, and that if an applicant did reform he or she could apply for readmission after five years. Without regard, however, to whether disbarment is permanent the situation today is exactly the reverse what it was in Koken. In the fifties, a lawyer seeking reinstatement had to prove that his disbarment was wrongful. Today, he must forthrightly proclaim that it was just.
The requirement that an applicant forthrightly admit wrongdoing, however, is not mandate for obsequiousness and “failure to grovel” is not a bar to readmission. In Griffith the applicant acknowledged that he had not during the disciplinary process thought that he had done anything wrong, but had come to agree with the disciplinary board and court during the time he was disbarred. He testified that he “felt bad” about the harm he had caused to so many people and accepted responsibility for his previous conduct. There was additional evidence that he had never blamed the Bar or the court for his misfortune. Griffith showed that he had gone through a reasonable period of penance and self-examination after his disbarment. That period, however, was neither dramatic nor heroic. It was simple, quiet and human.
Contrasting with Griffith is In re Gortmaker, 308 Or 482, 782 P2d 421 (1989). Before during and after his disbarment the applicant disputed the correctness of his felony conviction for embezzling public funds and the disbarment that followed. He represented himself as a lawyer after his disbarment and never fully accepted personal responsibility for his crime. His application for readmission was denied primarily for his failure to acknowledge the justness of his conviction and disbarment.
In the case, before this disciplinary panel there will be evidence that Mr. Onken left the practice of law partially to prevent further damage to the public, that he promptly admitted the embezzlements when faced with them, that he fully admitted his responsibility for the crimes, and that he accepted the sanction imposed upon him as lawful.
An Argument that Won’t Be Made
The Bar, in the matter currently before this panel, has regularly invited Mr. Onken to argue that the original disbarment was wrongful because it did not treat his alcoholism as a mitigating factor. They suggest that if he puts on evidence of a substance abuse problem, then he is in essence alleging that the substance abuse was the underlying cause of the embezzlements. Accepting that premise forces the parties to litigate the disbarment anew and for all practical purposes renders Mr. Onken’s efforts at reformation meaningless. He declines that invitation.
In re Holman, 297 Or 36, 682 P2d 243 (1984) and In re Murdock, 328 Or 18, 968 P2d 1270 (1998) describe the limited circumstances in which chemical dependency will be a defense to a disciplinary charge. Those cases suggest that under certain unusual circumstances the application of a modified “but for” or “causation” test can negate the mental state requirement and either cause the disciplinary case to fail or mitigate the sanction. Mr. Holman convinced the court that he was so impaired by drugs that he could not form the intent to embezzle. Mr Murdock failed to convince the court that his addiction “caused” his misconduct and was disbarred. Mr. Onken declined to make a Holman-type defense five years ago and declines again today. Murdock had not been decided when Mr. Onken resigned, and it is the idlest of speculation whether that case would have made any difference in 1994.
Intelligent people can disagree on whether alcoholism can coherently be considered the cause of specific crimes. Most people agree, however, that it is bad social policy to let voluntary intoxication be an excuse from criminal behavior. Mr. Onken accepted responsibility for his thefts in 1994 and accepted the sanction provided in law. He does not wish to second-guess that choice today.
There is, however, room in law for common sense and a little bit of street smarts. Nine years of almost daily contact with recovering alcoholics and addicts has taught Mr. Onken that addiction and dishonesty go hand in hand. He can testify that he has never encountered a single recovered alcoholic – including those who are members of the bar and bench – who claims to have been an honest drunk. Recovery from addiction means addressing the character flaws that led one to addiction in the first place, and victory over addiction is made possible by resolving serious underlying character issues. Alcoholics do not become honest by overcoming addiction; they overcome addiction by finally becoming honest.
Restitution to those harmed by misconduct.
The malfeasance that led to the disbarment in this matter was two embezzlements totaling just under a thousand dollars. That money was repaid in 1994 when the victim of the embezzlement discovered the matter and brought it to Mr. Onken’s attention. The victim and the victim’s attorney appear to have considered the matter thereafter at an end and neither reported the incident to the Bar. The matter was, instead, reported by Bruce Melkonian, an ex-employer and office mate who had previously sued Mr. Onken for unpaid rent.
There appears to be no question whether restitution has been paid for the charged malfeasance. It has. Issues may arise, however, if the bar chooses to raise them, whether restitution has been paid for other currently uncharged allegations of impropriety. This question awaits whatever strategy the Bar chooses to take at hearing. Restitution, however, is a limited concept and every financial failing or instance of negligence that causes harm to others does not give rise to a restitution obligation.
The question of restitution for acts other than those leading to the disbarment is made more complicated by the fact that Mr. Onken declared bankruptcy shortly after he ceased practicing law and is now protected against certain kinds of discrimination pursuant to federal law. Thus, even if the panel finds that he “ought” to have paid certain debts listed in the bankruptcy, it is prohibited by federal law from denying the readmission application on that basis. In pretrial discussions the Bar has suggested that it intends to offer evidence of the bankruptcy as “background” material and not as a basis for denying readmission. Consequently, Mr. Onken addresses the bankruptcy issue in a separate portion of this brief.
Activities for the Public Good
The third element in Griffith for moral fitness 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.
Mr. Onken will present evidence that he has been an active contributor, participant and officer at “Skully’s,” the oldest and arguably toughest continuously operating chapter of Alcoholics Anonymous in the State of Oregon. It is an organization that serves the most disadvantaged and least popular of the addicted community in inner Southeast Portland. In conjunction with that he was the incorporator and serves on the board of directors of Hinten House, a non-profit Oregon corporation dedicated to providing housing for self-supporting recovery groups such as Skully’s. In addition he added his experience to the voices of sobriety heard in the weekly Monday night meetings of Alcoholics Anonymous sponsored by the Oregon Attorney Assistance Program funded by the Oregon lawyers Professional Liability Fund.
On a more intellectual level, he served as the moderator of a very different kind of community on the internet. In 1996, when the young psychiatrist who started the group committed suicide, he took the reins of an internet community sponsored by St. Johns University and known as Netdynam. This international group studies organizational psychology and communication issues largely as they apply to computer mediated human relationships. Members of the group have produced many scholarly works on these issues and Mr. Onken’s participation has motivated many of those members to make Portland a place to stop during visits to this country.
Mr. Onken’s community service has ranged from working with alcoholic denizen of Portland’s eastside industrial district to keeping peace among international scholars of psychology and linguistics. And there is method to this madness. In certain respects, his previous problems were related to an ever-narrowing perspective in which work, home, and the tavern severely limited his view of the world. Today, he still has work and home, but on any given day might eat lunch with street-smart ex-cons and in the evening discuss communication theory with scholars from around the world. It prevents him from once again taking a single social vision of the world too seriously. And that is a good thing.
Resolution of Substance Abuse Problems
Attitudes toward addiction and recovery there from vary widely in America. The controversy touches nearly every segment of society and implicates some basic divisions in our culture about the relationship between choice and behavior. Almost no one denies the relationship between drug use and America’s exploding prison population. Similarly no one denies that drug and alcohol use is a particularly acute problem in the legal professions. See, Rick B. Allen, Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial?, 31 Creighton L. Rev. 265 (1997); Susan Daicoff, Asking Leopards to Change Their Spots: Should Lawyers Change? A Critique of Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes, 11 Geo. J. Legal Ethics 547 (1998). Alcoholics Anonymous and the American Medical Association assert that alcoholism is a disease. Common wisdom, however, suggests that every individual drink that leads to this disease is to some extent an individual choice for which the user should be held accountable.
The Oregon Court has shown some reluctance to entering the philosophical fray surrounding substance abuse. It has clearly committed to the idea that rehabilitation of substance abusers is both possible and desirable, but has declined to adopt any particular theory of addiction or require a specific attitude toward rehabilitation. In evaluating claims of recovery it has gone with behavior and results. At times the results have been a return to socially responsible drinking. At times it has meant abstinence.
In In re Rowell, 305 Or. 584, 754 P2d 905 (1988), the case most often cited for the court’s commitment to rehabilitation, a first-time applicant had a history of arrests related to drug dealing, alcohol abuse and probation violations. The court faced the question whether the applicant's moral character has changed sufficiently that he should be admitted to the bar. The court examined carefully the applicant’s history of chemical dependency finding that a four-year abstinence from illegal substances established satisfactory moral character as to the drug issue. Limiting his alcohol consumption to social drinking for seven years established that applicant was in control of his alcoholism. The Rowell court wrote:
Perhaps most convincing is the fact that there has been a slow, steady change in applicant's activities. The pattern of behavior exhibited by applicant shows a maturation process that started in 1978 or 1979 and has steadily continued. There was no sudden change when applicant decided to become a lawyer and that therefore might be treated with skepticism. Rather, there has been a change that predated the decision to attend law school and continued while in law school.
In In re Gregg, 252 Ore. 174; 446 P.2d 123 (1968) mentioned above an active alcoholic had misappropriated $2,000. By the time of hearing he had repaid the victim and sought in-patient treatment for alcoholism. Mr Gegg was disbarred but on reconsideration, In re Gregg, 252 Ore. 174; 448 P.2d 547 (1968), the court withdrew that sanction stating,
In the instant case the accused has not been drinking for about two and one-half years and the evidence indicates that the chances are good that he will continue to abstain. On the other hand, the medical testimony was that if the accused had a drink or two tomorrow he would be back in the same pattern that caused his trouble. We believe that a sufficient time should elapse during which it can be learned whether the accused can continue to abstain.
Gregg suggests that dishonesty and addiction go hand in hand, but neither needs be a permanent condition.
In In re Graham, 299 Or 511, 520, 703 P2d 970 (1985) the court found sufficient a rather confusing pattern of behavior in which the applicant attended church and AA but had on at least some occasions used alcohol socially. At the time of the readmission proceeding he was on self-administered antabuse.
The evidence in the case before this disciplinary board will be that Mr. Onken has been drug and alcohol free for over nine years. No matter what theory of addiction one accepts or what Oregon case one examines, this is sufficient continuous sobriety to demonstrate resolution of a previous substance abuse problem.
Knowledge and Learning Sufficient to Practice Law in Oregon
Although Griffith currently controls the analysis for the readmission of disbarred lawyers the case is actually an expansion and explanation of the readmission requirements contained in BR 8.1(b). The same rule, BR 8.1(c) also requires that the applicant show sufficient knowledge and learning to be able to practice in Oregon. It states,
(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, resignation or inactive status in this state; and whether the applicant has participated in continuing legal education activities during the period of suspension or inactive status in this state.
The Bar has not in its pleadings or elsewhere ever alleged that Mr. Onken lacks sufficient learning to practice law. This omission is intentional in that Mr. Onken’s intellectual acumen and degree of learning become apparent to anyone who has more than casual contact with him.
The evidence will show 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. Since recovering from alcoholism he has engaged in a wide variety of intellectual pursuits including seeking another graduate degree from Portland State University. 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. Should the panel have any doubts about his ability, he has no objection to taking and no doubt about his ability to pass the Oregon State Bar exam. The Bar has declined to make learning an issue in this case for good reason, and unless the panel show a particular interest in the subject Mr. Onken will follow the Bar’s lead.
The Nexus Between Recovery from alcoholism through Alcoholics Anonymous and resolution of underlying character defects.
The case before this panel will be different from Griffith in one unique way. In Griffith there appears to be no direct identifiable connection between his post-disbarment activities and Mr. Griffith’s overcoming of the dishonesty and greed that led to his disbarment. He seems to have one day simply “seen the light” and become an honest person without either outside help or significant personal effort. Mr. Onken did not have it so easy. In 1992 he began the twelve-step program contained in the book, “Alcoholics Anonymous,” a program specifically designed to help him overcome dishonesty and the related character defects which lay at the heart of his alcoholism. His goal was simply to stay sober. His program for doing that required that he change his entire way of thinking and acting.
The renowned twelve steps, steps that form the basis for many recovery programs, are found at the beginning of chapter five of the book, “Alcoholics Anonymous.” The chapter is entitled, “How it Works” and contains a concise introduction to the program. The first paragraph of that chapter states,
Rarely have we seen a person fail who has thoroughly followed our path. Those who do not recover are people who cannot or will not completely give themselves to this simple program, usually men and women who are constitutionally incapable of being honest with themselves. There are such unfortunates. They are not at fault; they seem to have been born that way. They are naturally incapable of grasping and developing a manner of living which demands rigorous honesty. Their chances are less than average. There are those, too, who suffer from grave emotional and mental disorders, but many of them do recover if they have the capacity to be honest.
Honesty, as this opening paragraph demonstrates, is the core virtue upon which the program of recovery depends. To be incapable of honesty is to be incapable of sobriety. For the alcoholic who sees AA as his last hope, failure at honesty means that he will drink again. For many, to drink again is to die. When Mr. Onken arrived at the tiny tough-love AA group known as Scullys in the winter of 1992, AA was his last hope and he believed in his heart that to drink again was to die.
The program contained in the book “Alcoholics Anonymous” asks its adherence to admit defeat in their battle against alcohol and instead attack the underlying character defects that turned them to the bottle in the first place. Those defects are most commonly dishonesty, self-centeredness, anger, resentment and fear. The method is as follows:
1. We admitted we were powerless over alcohol - that our lives had become unmanageable.
2. Came to believe that a Power greater than ourselves could restore us to sanity.
3. Made a decision to turn our will and our lives over to the care of God as we understood Him.
4. Made a searching and fearless moral inventory of ourselves.
5. Admitted to God, to ourselves and to another human being the exact nature of our wrongs.
6. Were entirely ready to have God remove all these defects of character.
7. Humbly asked Him to remove our shortcomings.
8. Made a list of all persons we had harmed, and became willing to make amends to them all.
9. Made direct amends to such people wherever possible, except when to do so would injure them or others.
10. Continued to take personal inventory and when we were wrong promptly admitted it.
11. Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out.
12. Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics and to practice these principles in all our affairs.
Perfect performance of the twelve steps is as rare as perfect performance of the Ten Commandments. The steps are a guide and a goal rather than something to be completed and forgotten. It is, however, Mr. Onken’s acceptance of them as personal goals that connects his sobriety to his efforts to eliminate those character defects that led to his disbarment. He is not a representative, an advocate, or example of AA, and he has no interest in any controversies surrounding recovery programs. He is simply one of millions who have found in the program a way to stay sober. His efforts in that endeavor, however, form a connection between his post-disbarment activities and his claim that he has overcome the moral failings that led to his disbarment. This is a connection that was missing from Griffith; a connection that makes Mr. Onken’s case both more understandable than Griffith and more compelling.
THE BANKRUPTCY ISSUE
The Bar has shown some interest in Mr. Onken’s 1990 bankruptcy and will bring up issues surrounding that proceeding. The case, however, is now over ten years old and therefore hardly an indicator of Mr. Onken’s current moral condition. Furthermore, the State and its subdivisions are prevented by the nondiscrimination provisions of 11 USC § 525 and Perez v. Campbell, 402 U.S. 637, 91 S.Ct 1704, 1971 U.S. Lexis 127 (1971) from denying Mr. Onken admission to the bar because of the bankruptcy or any failure to pay debts discharged in the bankruptcy. Because of the age of the bankruptcy proceeding and its limited relevance, the law of bankruptcy in readmission cases is briefed in Appendix A attached.
Almost every jurisdiction in the United States subscribes to the idea that lawyer discipline is for the protection of the public and not to punish wayward attorneys. The underlying theory of sanctions, however, normally makes little difference to the one sanctioned. Sanctions feel and look like punishment. The practical difference between the two arises at their termination. Punishment visits upon a miscreant lawyer a discomfort proportionate to the damage he inflicted, deters those who contemplate similar misdeeds, and continues without regard to rehabilitation or reformation. When punishment is complete it ends, and the wrongdoer is free to resume whatever activities he chooses. Sanctions designed to protect the public, however, have no predetermined end and continue as long as they serve their protective purpose. Protective sanctions are not lifted solely because time has passed or the accused has suffered enough. If circumstances change, however, and the sanctions have fully served their purposes they should end. In re Smith, 270 SE2d 768 (W.Va. 1980). To extend them beyond that protective function violates fundamental ideas of fairness, breeds cynicism about the administration of justice, and deprives society the benefit of the educational investment it has made in the affected lawyer. In short, when sanctions designed to protect the public are kept in place past their usefulness, they end up hurting the very public they were designed to protect.
Several courts have faced the punishment issue head on. In In re Dimenstein, 410 A.2d 491 (Conn. 1979), the court wrote,
Although disbarment is not punishment for a crime, but, rather, the withdrawal of a privilege, it cannot be denied that the requirement of permanent, irrevocable disbarment, is, in effect, a consequence so severe that it partakes of the nature of punishment, and a statute providing for the same must be interpreted in the light of the fundamental canon that penal statutes must be strictly construed.
And thus orders and statutes that provided for permanent disbarment have been held not to preclude readmission. Ex parte Redmond, 82 So 513 (Miss. 1919); In re Hipsh, 586 So2d 311 (Fla. 1991).
When Alger Hiss, a man made famous during the McCarthy era, sought reinstatement to the Massachusetts State Bar, the examining court set the standard for many readmission cases to follow. In In re Hiss, 333 NE2d 429 (Mass. 1975) the court made the following oft-quoted analysis,
Disbarment is not a permanent punishment imposed on delinquent attorneys as a supplement to the sanctions of the criminal law -- "though it may have that practical effect. Its purpose is to exclude from the office of an attorney in the courts, for the preservation of the purity of the courts and the protection of the public, one who has demonstrated that he is not a proper person to hold such office." Keenan, petitioner, 310 Mass. 166, 169 (1941). Accord, n10 Bar Assn. of the City of Boston v. Greenhood, 168 Mass. 169, 183 (1897) ("protection of the public from attorneys who disregard their oath of office"); Bar Assn. of the City of Boston v. Casey, 211 Mass. 187, 192 (1912); Matter of Keenan, 314 Mass. 544, 546-547 (1943). The position of the Bar Counsel presupposes that certain disbarred attorneys, guilty of particularly heinous offenses against the judicial system, are incapable of meaningful reform which would qualify them to be attorneys and, further, that the public will never be willing to revise an earlier opinion that the offender was not a proper person to function as an attorney. If adopted the rule would provide that "no matter what a disbarred attorney's subsequent conduct may be; no matter how hard and successfully he has tried to live down his past and atone for his offense; no matter how complete his reformation -- the door to restoration is forever sealed against him." In re Stump, 272 Ky. 593, 597-598 (1938). Such a harsh, unforgiving position is foreign to our system of reasonable, merciful justice. It denies any potentiality for reform of character. A fundamental precept of our system (particularly our correctional system (n11 ) is that men can be rehabilitated. "Rehabilitation . . . is a 'state of mind' and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved 'reformation and regeneration.'" March v. Committee of Bar Examrs. 67 Cal. 2d 718, 732 (1967). Time and experience may mend flaws of character which allowed the immature man to err. The chastening effect of a severe sanction such as disbarment may redirect the energies and reform the values of even the mature miscreant. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proofs.
Although most jurisdictions hold permanent disbarment to be inconsistent with the underlying logic of lawyer sanctions, most jurisdictions also place a heavy evidentiary burden on the applicant seeking readmission after disbarment. Courts have often observed “although courts are slow to disbar, they are slower to reinstate.” Bonner v. Disciplinary Board of the Alabama State Bar, 401 So 2d 734 (Ala 1981) (quoting In re Petition of Morrison, 186 NW 556, 557 (S.D. 1922)). Thus, most states require that an attorney wait at least five years before seeking reinstatement and then show clear and convincing evidence of rehabilitation, compliance with all applicable discipline or disability orders, and fitness to practice law. In re Wiederholt, 24 P3d 1219 (Alas. 2001); ABA Standards, Standard 2.10 (Readmission and Reinstatement).
While the majority of courts reject punishment as a consideration in lawyer discipline, the minority position is not without its advocates. In In re Smith, 270 S.E.2d 768 (W.Va. 1980) the court pointed out that when dealing with dishonesty the underlying theory of criminal law does not fail because the accused is a lawyer.
The underlying theory of our criminal law is that some people are tempted to profit by illegal means and the penal system's punishment is designed to dissuade by threat in the first instance and to reform by actual infliction in the second instance. Whether any person (previously honest or dishonest) at any given time is entirely rehabilitated from the general vice of willingness to profit from illegal acts is always a speculative question at best. Consequently the system is constructed on the only workable theory, namely a presumption that once a person has suffered the legal penalty for a specific transgression he is rehabilitated from the general vice of dishonesty.
The theory is not lost on the Washington court that wrote, “a goal of attorney discipline is to punish an attorney so that the offense will not be repeated.” In re Stroh, 739 P.2d 690, 693 (Wash. 1987). In In re Rosellini, 739 P2d 658 (Wash. 1987) the court graphically detailed how the accused had suffered public embarrassment, shame, loss of social standing, and extended financial hardship to the degree that the accused would be unlikely to ever forget his oath of office again. Sanctioned attorneys often suffer severely and in that suffering are reminded of their misdeeds. Treating sanctions as protections for the public does not change this.
Whether one accepts punishment or public protection as the rationale behind lawyer sanctions, no person wants to turn his back on the possibility that people can turn their lives around and make up for a misguided past. Real-world experience, however, suggests that courts must carefully examine claims of reform. A lawyer who has been deceptive with clients or the courts in the past might also be deceptive about his own reformation. One answer is to simply make disbarment permanent. See In re Kirshen, 451 NW2d 807 (Iowa 1990), (“we have no established procedure for disbarred attorneys to seek reinstatement.”). This approach, however, has been rejected by nearly all jurisdictions. Instead, courts have developed a series of evidentiary factors by which to evaluate rehabilitation claims. In doing so the courts avoid the injustice inherent in permanent disbarment while limiting readmission of disbarred lawyers to those cases in which the applicant clearly presents no further danger to the public.
In In re Pier, 561 NW2d 297, 301 (SD 1997), the South Dakota court took upon itself the job of collecting and distilling the factors courts have commonly considered in evaluating petitions for readmission after disbarment. After an examination of cases from around the country the courts suggested the following to be the most relevant:
1. present moral fitness;
2. acceptance of wrongdoing with sincerity and honesty;
3. extent of rehabilitation;
4. nature and seriousness of the original misconduct and the disrepute it brought on the legal profession;
5. conduct following the discipline, including whether there has been any unauthorized practice of law;
6. time elapsed since the original discipline;
7. character, maturity and experience at the time of discipline and now;
8. current competency and qualifications to practice law;
9. restitution; and
10. proof that resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest.
The Pier factors cannot accurately characterize the actions of every court, but they fairly represent what a large number of states have done. (A chart of national cases and their application of the Pier factors is attached to this brief as Exhibit B.) For example in Griffith, the single Oregon readmission, the court stated that resolution of any underlying substance abuse problem and works for the good of the community had to be shown by clear and convincing evidence. Under the Pier factors, resolution of substance abuse problems would fall under rehabilitation. Similarly, works for the public good would fall into the more general category of conduct following discipline. Other states have similar misfits. Nevertheless, the Pier factors present a fair outline of how courts approach reinstatement after disbarment.
In trying to extract a national pattern out of the Pier factors, one is struck by how consistently courts have emphasized balance in the application. Reinstatements are by necessity fact intensive, In re Robbins, 836 P2d 965, 966 (Az. 1992), and no single evidentiary factor is dispositive. Thus, one could prove complete reformation and current moral fitness yet be denied readmission based upon the severity or notoriety of the original misconduct. Restitution to those injured sits at the threshold of rehabilitation. Courts, however, have wisely pointed out that dishonest men might be able to pay restitution where the honest man could not. Service to the community is regularly held to be an indispensable ingredient in reformation. Good works, however, are not confined to honest men and thieves can find themselves in a better position for philanthropic pursuits than the man who spends his days in honest labor. When context is considered, laudable behaviors can point away from rather than toward rehabilitation. Thus, a Pier factor individually is neither a passage nor a roadblock to readmission. It is simply one of the places where a court or investigating panel ought to direct its attention. The final decision or readmission should not lie in any one factor, but on whether all the factors considered in context point toward a true reformation of character.
Present moral fitness is both the easiest and hardest factor for the applicant. It is the easiest in that virtually every applicant brings to his reinstatement hearing a parade of witnesses who will testify that he is currently honest, upstanding and moral. But see, In re Pavageau, 2000 Nev. LEXIS 155 (2000)(readmission denied largely due to the absence of character witnesses). It is the hardest in that courts are not normally called upon to decide matters based solely upon the character and moral condition of the accused. In the proceedings that led to Mr. Onken’s disbarment the issue was whether or not he took the money. In reinstatement, however, no act or omission is dispositive. His moral condition is the ultimate issue, Greene v Kentucky Bar Ass’n, 904 SW2d 233, 236 (Ky 1995), and the evidence thereof is hidden securely within his heart.
One difficulty in evaluating character witnesses is determining whether the witnesses have actual knowledge of the applicant’s character. A review of cases from across the nation suggests that courts look favorably on character testimony from prominent members of the legal profession. In re Hiss, 333 NE2d at 464 (witnesses for the accused included a retired U.S. Supreme Court Justice, and a former U.S. Solicitor General). On the other hand, prominent members of the profession also represent a significant percentage of those seeking readmission after disbarment. Eg, In re Rosellini, 739 P2d 658 (Wash. 1987)(state representative and candidate for state attorney general); In re Romano, 615 A.2d 476 (RI 1992)(counsel to the Senate Judiciary Committee); In re Gutman, 599 NE2d 604, (Ind 1992)(president pro tem of Indiana State Senate). Thus it can be hard to tell whether the members of the profession who testified on any particular applicant’s behalf are there because they truly recognized the applicants moral rebirth or simply because they have always been part of the applicant’s normal social life.
Whether prominent in the legal profession or not, character witness must are evaluated on the degree to which they have actual knowledge of the applicant. Thus witnesses must know, at the very least, why the applicant was disbarred in the first place, In re J.J.T., 761 So2d 1094 (Fla 2000), and by similar reasoning, a character witness who contradicts the implications of the disbarment by testifying that the applicant has always been morally fit must be disregarded. In re Griffith, 323 Or at 108, In re Hiss at 333 NE2d at 438 n. 30. In short, boilerplate character testimony, even when given by community leaders, fails to provide the historical facts upon which a court can rely in determining whether an applicant has truly changed his life. Those facts will only emerge from the testimony of those who have seen and lived with the applicant on a day-to-day basis during the period of disbarment. Useful witnesses will come from the family, community and occupation where the applicant spent the years of his disbarment. In most cases those witnesses will be the average people who in the wisdom of their everyday lives and outlooks collectively determine for all of us what moral fitness really means.
Nearly all jurisdictions in readmission proceedings balance the applicant’s present moral condition against the severity of his earlier wrongdoing. They then fill in the picture with the specific acts associated with his rehabilitation. Thus, an applicant must provide both appropriate character evidence in the present, and an explanation of how he emerged from his earlier unfitness. One of many examples arose in In re Menna, 11 Cal4th 975, 905 P2d 944, 47 Cal Rptr2d 2 (1995) in which the court wrote that in reinstatement cases "the evidence of present character must be considered in the light of the moral shortcomings which resulted in the imposition of discipline.” The applicant must show not only that he is morally fit now, but also show a coherent rehabilitative nexus between the past and present.
The character witnesses in Mr. Onken’s case will be from his family, from his work, from his intellectual pursuits and from his community service. Each has been asked to testify because of the witness’s close personal association during the period of his disbarment. They will testify generally that he is a different person than the one who stole $900 in the late eighties, a difference largely due to his sobriety and adherence for nearly ten years to the program of Alcoholics Anonymous.
2. Acceptance of Wrongdoing with Sincerity and
Like Oregon, most states require that an applicant for reinstatement acknowledge the nature and extent of his wrongdoing. Many lawyers have been denied reinstatement for minimizing or trying to excuse the behavior that got them disbarred. In re Wiederholt, 24 P3d 1219 (Alas. 2001); In re Costigan, 664 A2d 518 (Pa. 1995)( “This failure to acknowledge his own wrongdoing disqualifies him from readmission to the bar”). Facing up to and taking responsibility for ones misconduct stands at the threshold of rehabilitation.
The requirement of remorse, however, is not absolute. A person who believes he is innocent though convicted must not be required to confess guilt to a criminal act he honestly believed he did not commit. In In re Hiss at 333 N.E.2d at 437. the court wrote
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.
Accord, In re Barton, 329 A2d 102 (Md. 1974)( “to be reinstated, one need not express ‘contrition’ which is inconsistent with a position to which he honestly and sincerely adheres.”)
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.
Mr. Onken 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 both it and the underlying character flaws. He believes that he can only remain free of the disease by turning his back on dishonesty and addressing the self-centeredness that led to his alcoholism in the first place. Thus, he has never asserted 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 Mr. Onken, 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. It suggests, instead, that his commitment to honesty extends to being truthful about his beliefs even if doing so leaves him open in this forum to the charge of evasion.
The remorse Mr. Onken today feels about his behavior in the late eighties is an amalgam of guilt and shame. Guilt comes from wrongdoing itself. It is the sentence imposed by one’s conscience. Shame depends upon an audience. To steal is to feel guilt. To be exposed as a thief is to feel shame. Shame, as with the person struck naked in public, occurs when one’s unadorned humanity is exposed to public view.
Mr. Onken admitted his guilt in 1994 when the accusations were made against him and admits his guilt again in this proceeding. He has publicly borne the shame of his personal and professional failures for nearly a decade. His friends, family and co-workers have chosen to let him leave that part of his life in the past. Squeezing a last spasm of public self-condemnation out of him is more punishment than investigation. “"The dignity of being human consists of the courage to acknowledge shame, and the refusal to be trapped or diminished by it." Solotraraff, Group, (Reissue Ed. 2000). No matter what happens in this proceeding, Mr. Onken is still entitled to such dignity. His remorse is shown over the last years by his openness about his misdeeds and by the way he has lived his life.
In looking at rehabilitation, courts have divided cases of dishonesty arising from greed from those in which the dishonesty arose out of addiction, mental illness, or some other condition recognized as capable of cure. Greed is a matter for the courts alone. Disease is a matter for the courts working hand in hand with science. The difference in treatment reflects the view that although morality is neither a proper matter for scientific inquiry nor subject to correction by scientific method, dishonest acts arising out of a medically treatable condition should be recognized as such and handled accordingly. In a sense the courts recognize that while immorality is not a disease, immoral acts can arise out of conditions that are.
The lack of accepted methods and institutions for the rehabilitation of the morally corrupt has left the courts adrift when facing the rehabilitation of fallen lawyers. The many arms of science treat physical disorders, mood disorders, personality disorders and disorders of nearly every type. But science has little to offer to those in need of moral rehabilitation. There is prison, of course, but prison communities have not proven to be consistent proponents of the moral life. With neither science nor government taking up the cause, reformation of morals has been largely turned over to the churches. Thus, where disease meets immorality is where science, government and religion gather together.
Citing the rules for readmission the Florida court in In re P.T.R, 662 So. 2d 334 (Fla. 1995) the court listed the criteria for rehabilitating moral decay;
(1) Strict compliance with the specific conditions of any disciplinary, judicial, administrative or other order, where applicable;(2) Unimpeachable character and moral standing in the community;(3) Good reputation for professional ability, where applicable;(4) Lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative or other proceeding;(5) Personal assurances, supported by corroborating evidence, of a desire and intention to conduct one's self in an exemplary fashion in the future;(6) Restitution of funds or property, where applicable;(7) Positive action showing rehabilitation by such things as a person's occupation, religion, community or civic service.
Arguably the criteria used in Florida confuse the process of rehabilitation with the results in that one normally expects admirable post-disbarment behaviors to flow from the rehabilitative process rather than be part of it. But options for rehabilitation are few in the area of generalized immorality. Scientific and secular institutions do not normally offer their aid to the morally unfit unless there is an associated medical or social issue, and religious institutions are separated from government embrace by the Establishment Clause of the U.S. Constitution. The disbarred lawyer is on his own with the courts suggesting that although they can’t really define rehabilitation they will know it when they see it.
When, however, an applicant’s misdeeds have been associated with a treatable medical or psychological condition, courts have attached significant weight to the fact that the applicant has recovered from the underlying condition. The rationale for such a distinction was explained in, In Re Smith 270 S.E.2d 768 (W.Va. 1980).
The concept of rehabilitation, however, can have a much more significant and affirmative meaning in situations where a lawyer has been disbarred for reasons emanating from identifiable vices or even illnesses. For example, if a compulsive gambler were disbarred for peculation of his client's funds, then it would be necessary for the lawyer to demonstrate that he is no longer a gambler and that he has taken affirmative action to cure himself of the vice of gambling. Similarly if a lawyer were disbarred for gross negligence which resulted from chronic alcoholism, it would then be necessary to show that the lawyer has abjured liquor and at the time of the petition has a reasonable history of abstinence.
Accordingly in In re Robbins, 836 P2d 965 (Ariz. 1992) the Arizona court readmitted an applicant who had done prison time for forging a client check partially because he had resolved the severe depression that had affected him at the time of the thefts. But see, In re Butcher, 907 SW2d 715 (Ark. 1995)(applicant failed to demonstrate that bipolar disorder causes one to act in deceptive ways)
Much mischief emanates from the disease of alcoholism, both in our society and in the legal profession. Alcoholism is unique, however, in that the most common and most effective method of treatment is through Alcoholics Anonymous and its program of moral restructuring and spirituality. Alcoholics Anonymous, although not a religion, 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.) It promotes theism, emphasizes moral uprightness, and makes living a spiritual life the primary defense against intoxication. Thus, the rehabilitative process advocated by Alcoholics Anonymous firmly and directly addresses the moral fitness that concerns the court in a readmission proceeding. It is rehabilitation of the alcoholic by rebuilding his moral foundations.
Without deciding the philosophical question of whether alcoholism can be the direct cause of specific misconduct, courts have been uniformly supportive of applicants using Alcoholics Anonymous as a vehicle for rehabilitation. In In re Billings, 50 Cal. 3d 358; 787 P.2d 617 (1990) the court wrote,
According to a consensus of the medical community, alcoholism is a treatable disease. (See Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1114-1115 [232 Cal.Rptr. 814, 729 P.2d 80].) Through continued abstinence, an alcoholic may arrest the deleterious manifestations of the disease. Hundreds of thousands of Americans are recovering alcoholics, completely abstinent from alcohol or other mind-altering chemicals. (Alcoholics Anonymous World Services, Inc., Alcoholics Anonymous (3d ed. 1976) foreword p. xxii.) An alcoholic's rehabilitation is almost universally predicated on a choice to confront his or her problem, followed by abstinence sustained through ongoing participation in a supportive program, such as Alcoholics Anonymous. (See In re Kersey (D.C.App. 1987) 520 A.2d 321, 325-326.)
In In re Wegner, 417 NW2d 97 (Minn. 1987) the court made the following findings and conclusions before readmitting an applicant who had organized a marijuana smuggling operation.
1. That alcohol had been
a serious problem in his life and had produced a moral laxity and a financial
situation that resulted in the offense committed; 2. That he has undergone a
marked change in his personality exhibited by his becoming more sensitive,
sincere, friendly and open in his relationships with others; 3. That he has
become a conscientious and diligent worker; 4. That he is a regular participant
in Alcoholics Anonymous and Lawyers Concerned for Lawyers and has not used
alcohol since 1982;
. . .
Although we recognize that alcohol has never been deemed to be the sole cause of petitioner's prior misconduct, we think it is relevant that petitioner had an extensive history of alcoholism and has successfully completed treatment for this disease. He has remained chemical-free for over 5 years, which demonstrates a readiness to return to the practice of law
See also, In re Kadrie, 602 NW2d 868 (Minn. 1999) (“Petitioner's successful treatment of his alcoholism weighs against the likelihood of his committing further misdeeds.”) Greene v Kentucky Bar Ass’n, 904 SW2d 233 (Ky, 1995)(applicant admitted who was both “clean and sober” and active in AA.); In re Trygstadt, 472 NW2d 137, (Minn. 1991)(applicant admitted who had remained drug free and continued to regularly attend AA). But see, In re Billings, 50 Cal. 3d 358; 787 P.2d 617, 267 Cal. Rptr. 319 (1990)(applicant not reinstated after a lengthy pattern of malfeasance and only nine months sobriety), In re Menna, 11 Cal4th 975, 905 P2d 944, 47 Cal Rptr2d 2 (1995)(applicant not admitted who attended Gamblers Anonymous but had not made restitution to the many victims of his fraud).
The relationship between the government’s interest in the rehabilitation of alcoholics and the program of recovery practiced by members of Alcoholics Anonymous has always been an uneasy one. Government institutions cannot openly endorse the religious component of the program and chafe at AA’s fierce resistance to bureaucratic interference. AA groups strive to fill their meetings through attraction rather than promotion and resent the courts and social service agencies “sentencing” people to AA. Government promotes science and professionalism. AA promotes a spiritual life and its members take a vow to remain “forever nonprofessional.” Despite these differences an intimate connection remains. This is due to both the effectiveness of AA and the paucity of trustworthy secular alternatives. Courts and social service agencies still make AA attendance a part of many rehabilitative schemes, and AA groups still sign the little notes that these institutions demand.
The connection between AA and the agencies that regulate the legal profession is particularly strong. This is not only because those in the profession suffer from a higher instance of alcoholism and addiction than the general population, but also because AA addresses the self-centeredness, cynicism and compulsive perfectionism that can push an attorney toward a variety of self-destructive behaviors. The Oregon Attorney Assistance Program (OAAP) fully embraces the AA model for recovery from alcoholism and provides a sanctuary for those alcoholic attorneys who want to seriously address the character issues that lie beneath the surface of addiction.
Mr. Onken began his own rehabilitation in an AA group known as Scullys. Scullys has existed as a fully self-supporting group on Portland’s industrial east side for over fifty years. It is know for its no-nonsense approach to recovery and its willingness to take the hard cases. As any treatment professional will testify, lawyers are always hard cases. In 1993, Mr. Onken added to his AA regimen meetings held at the offices of the OAAP. At Scullys he learned the ways of sobriety from men who slept in missions. At the OAAP he learned it from men who slept in mansions. The lessons were the same. Alcohol was but a symptom of a deep spiritual sickness, a sickness that could only be cured through a program of honesty, humility and service to others.
Mr. Onken, however, did not join Scullys in 1992 because he was seeking a moral reformation that would make him acceptable to the Oregon State Bar. He did it because he wanted sobriety. Addressing his character issues was the means, not the goal. Further, he makes no claims about other methods of obtaining sobriety or reforming character. AA was the one he chose because it was the only one open to him. He has no complaint if other people prefer other methods and other programs. AA has worked for millions of alcoholics and it worked for him.
In AA the student eventually becomes the teacher and so went the case for Mr. Onken. He was given positions of trust at Scullys, and at the OAAP his presence as a disbarred attorney was a dramatic example to those new to the program of. Freed from both the craving for alcohol and fear of financial insecurity he was able to study and write on issues such as religion, ethics, philosophy and aging. Thus, his rehabilitation which began among the prostitutes, ex-cons and mentally ill who find Scullys to be the last door on the block ends up with him carrying the message of sobriety to the lawyers and judges who seek help in the meeting rooms of the Oregon Attorney Assistance Program. And that is exactly how it is supposed to work.
4. Nature and Seriousness of the Original Misconduct
Although courts have struggled with the issue, the majority of tribunals hold that the seriousness of the conduct that led to disbarment is an important factor to be considered in determining whether an applicant ought to be reinstated. The theory seems to be that the wrongdoing that led to conduct conclusively shows the degree to which the applicant was morally unfit to practice law at the time. In a readmission proceeding the court balances the evidence of the applicants current good character with the seriousness of the prior misconduct, inquiring whether the former is of sufficient weight to overcome the latter. In re Wiederholt, 24 P3d 1219, 1227 (Alas. 2001). Thus, the more egregious the crime, the more convincing the evidence of rehabilitation must be. In re Gutman, 599 NE2d 604 (Ind. 1992)
Approaches are not uniform. Pennsylvania requires a court to determine as a threshold matter whether the applicant’s breach of trust was so egregious that it precludes the court from even considering the petition for reinstatement. In re Greenberg, 749 A.2d 434, 435-36 (Pa. 2000), while Mississippi appears to look only to the current good character of the applicant. Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1382 (Miss. 1983). The rest of the states take the middle road, adhering to the position that rehabilitation is a favored social policy but admitting that some crimes are so abhorrent that reformation is unattainable through normal human effort.
Most of the cases in which applicants were denied readmission purely on the severity of the misconduct involved direct interference with the public administration of justice. The court in In re Brown, 273 S.E.2d 567 (W.Va. 1980) wrote,
Because of the extremely serious nature of applicant's original offense of bribing a juror when coupled with the separate conviction of conspiring to bribe public officials, we cannot help but conclude that his reinstatement would have a justifiable and substantial adverse effect on the public confidence in the administration of justice. The nature of these crimes directed as they are to the core of the legal system and the integrity of governmental institutions demonstrates a profound lack of moral character on the part of the applicant.
We have held in Smith that the seriousness of the underlying offense leading to disbarment may, as a threshold matter, preclude reinstatement such that further inquiry as to rehabilitation is not warranted. The offenses involved in this case manifestly meet this test and for this reason applicant's petition for reinstatement is denied.
Other cases in which the seriousness of the underlying crime prevented readmission included In re Russo, 630 P2d 711 (Kan. 1981)(bribery of the police to protect the attorney’s house of prostitution). In re Raimondi and Dippel, 403 A2d 1234 (MD. 1979).(embezzling public funds through a system of fictitious heirs and bribery of state assemblymen), In re Gutman, 599 NE2d 604, (Ind. 1992) (extortion while applicant was President Pro Tem of the Indiana State senate).
On the other hand, courts have been truly hesitant to close the door to rehabilitation. The court in In re McKeon, 656 P2d 179 (Mont. 1982) admitted a lawyer who had been convicted of felonies involving fraud, grand larceny and forgery.
we decline in principle to adopt a position that permanent disbarment is just retribution for a felony conviction. In the deepest well-springs of our beings, expressed in nearly every religious persuasion, is the precept that man, though weak in nature, can nonetheless reform. To deny that humans, even lawyers, are capable of reform is to scant the qualities of memory, understanding and will which distinguish us from other vertebrates.
Cases in which the severity of the crime did not preclude readmission include In re Perrone, 2001 Pa. LEXIS 1522 (2001)(a three year scheme involving false fee petitions); In re Greenberg, 749 A2d 434 (Pa. 2000)(bankruptcy fraud involving fraudulent transfers with applicant sentenced to five years in prison, a $250,000 fine, and $1.7 million dollars in restitution); In re Verlin, 731 A2d 600 (Pa. 1999)(attorney assisted a personal injury client in impersonating a dead man at a deposition.); In re Lahey, 716 NE2d 362 (Ind. 1999)(attorney reinstated after tax fraud conviction); In re Costigan, 664 A2d 518; (Pa. 1995) (various counts of theft by deception); In re Green, 904 SW2d 233 (Ky. 1995)(applicant used securities fraud to obtain $250,000). In Re Fleischman 553 NE2d 352 (Ill. 1990)(bribery of a public official); In re Allen, 509 NE2d 1158 (Mass. 1987)(applicant convicted in an arson for profit scheme); In re Stroh, 739 P.2d 690, 693 (Wash. 1987)(witness tampering); In re Berkley, 451 N.E.2d 848 (Ill. 1983)(complex personal injury fraud involving suborning the perjury of police officers); In re Dimenstein, 410 A2d 491 (Conn. 1979)( readmitted after doing jail time for conspiracy to bribe a public official); In re Hiss, 333 NE2d 429 (Mass. 1975)(convicted of perjury in connection to treason.)
Misuse of client funds is considered by all courts to be very serious misconduct. The applicant readmitted after misuse of client funds in In re Rosellini, 739 P2d 658 (Wash. 1987) dubbed it as “the most serious offense a lawyer can commit short of violent crime.” In addition to being one of the most serious crimes a lawyer can commit, it is also one of the most common. Thus, courts have generally held that “even a former thief may be reinstated is he or she makes a clear and convincing showing of rehabilitation.” In re Murray, 558 A2d 710 (Md. 1989)
Courts have reinstated attorneys who have embezzled clients funds in the following cases: In re Kadrie, 602 NW2d 868 (Minn. 1999) (forging a cashier's check, misappropriating client funds and falsely stating that he held the funds in trust for a client); In re Pier, 561 N.W.2d 297 (S.D. 1996)(embezzling over $50,000 from his client); In re Murray, 558 A2d 710 (Md. 1989)(stealing $10,000 from clients in two separate thefts); In re Batali, 657 P2d 775 (Wash. 1983)(attorney convicted and did prison time for embezzling about $50,000 from clients). But see, In re Smith, 953 P2d 222 (Kan. 1998) (theft of $62,000 from client deemed too severe a crime to permit reinstatement).
In the instant case, Mr. Onken committed two thefts in the late eighties. When combined the amount stolen came to just under a thousand dollars. It was a serious crime that struck at the heart of the attorney-client relationship. However, even in the most stringent jurisdiction it is not such that the severity of the crime alone prevents Mr. Onken from seeking reinstatement. His malfeasance did not perpetuate a fraud on the justice system. It was not part of a conspiracy or calculated scheme of embezzlement, and the amounts taken were not so large as to shock the conscience. The severity of his crime cannot be ignored. However, it must be balanced against the steps he has taken to rebuild his character and his life.
5. Conduct Following the Discipline, Including Whether There has been any Anauthorized Practice of Law;
Virtually all courts examine an applicant’s conduct during the period between disbarment and the application for reinstatement. In that examination unauthorized practice of law and other violations of law weigh against reinstatement. Service to the community and other law-abiding behaviors weigh in favor. But as with the other criteria, much depends upon context. Dishonest men can be philanthropic and often are. What counts in the realm of good works is not the volume of good the applicant does, but the difference between what he does now and what he did prior to his disbarment. As with so much of life, the devil is in the details.
One of the most straightforward requirements for readmission is that the applicant live an honest and law-abiding life during the period of his disbarment. At the very least this means respecting the disbarment order by not practicing law. In re Polito, 547 NE.2d 465 (Ill. 1989)(readmission denied for a variety of post-disbarment dishonesty including the unauthorized practice of law); In re Gortmaker, 308 Or 482; 782 P2d 421 (1989). In addition it means staying out of financial trouble, In re Koken, 214 Or 357; 329 P2d 894 (1958), taking care of traffic infractions and other common legal matters as they arise, In re Gossage, 5 P3d 186 (Cal. 2000), and most importantly, ceasing to engage in the types of behavior that got the applicant disbarred in the first place. In re Sayre, 535 SE2d 719 (W.Va. 2000).
The courts, however, expect an applicant to do more than just stay out of trouble. They expect and demand service to the community. Community service and its relationship to moral fitness is not as clear cut as one might imagine. One of the reasons for ambiguity is that thieves can and do perform good works. A second is that community service when imposed upon a person by outside forces, such as the work crews picking up trash along the freeways, becomes punishment. Involuntary community service might lead one to meditate on his evil ways, but it is not an expression of moral uplift.
Florida has been the most forceful of the states in making community service an essential aspect of the applicant’s case. In In re J.J.T, 761 So2d 1094 (Fla. 2000) the court noted the statutory requirement that the applicant “show rehabilitation by such things as his ‘occupation, religion, community or civic service.’” Merely showing that he was now living and doing the things that he should have done throughout life did not show the “extra effort” he needed for reinstatement. The court then reiterated Florida’s stringent community service requirement:
The rules contemplate and we wish to encourage positive actions beyond those one would normally do for self benefit, including, but certainly not limited to, working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence, or maintaining substantial involvement in other charitable, community, or educational organizations whose value system, overall mission, and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens. Id at 1097
Even in Florida, however, the community service is evaluated for its effect on the applicant, not its benefit to the community. Thus, in In re P.T.R. 662 So2d 334 (Fla 1995) an applicant for reinstatement served as a volunteer martial arts instructor, served in various positions with his son's Little League team, offered his services to a homeowners' association in North Carolina where he and his wife owned a lot, and donated blood about every sixty days. He was readmitted over an objection that his community service really benefited himself, his family and property. In its ruling the court observed that the rehabilitation requirement is broad in scope and that the community service done by P.T.R. positively impacted the community, civic and religious aspects of his life. The court may have believed, as many people do, that the one who receives the greatest benefit from giving is always the giver. Thus, the question in rehabilitation cases should be only whether the applicant has done enough to learn that lesson.
Community service alone, however, does not necessarily demonstrate moral reform. In In re Hird, 21 P3d 1043 (Ok. 2001) several witnesses testified to Hird’s involvement in his community and church. The court noted, however, that Hird had been equally involved in his church and community prior to the disbarment. Thus, the service to the community was not evidence of a changed character. But see, In re Pier, 561 N.W.2d 297 (S.D. 1996)(applicant commended for community involvement both before and after disbarment); In re Rosellini, 739 P2d 658 (Wash. 1987)(applicant commended for pre-disbarment public service).
The fact is that community service should point toward a reformation of character and moral fitness, but at times it does not. Robin Hood was well know for his service to the poor, but showed some weaknesses when it came to complying with the law. Successful thieves have more time and money to put toward philanthropic pursuits than working men. The wealthy, whether thieves or not, have more time to serve the poor due to the fact that they don’t have to mow the lawn and cook the meals in their own homes. Thus, community service must be carefully examined in readmission to separate that kind of service that arises from a changing moral outlook from that which is emanates solely from wealth, social standing or dishonest behavior itself.
Like many lawyers who have been disbarred, Mr. Onken has had a difficult time just tending to the needs of his family. See In re Rosellini, 739 P2d 658 (Wash. 1987)( “his principal energies since disbarment have been devoted to his work and the support of his wife and four children”); In re McKeon, 656 P2d 179 (Mont. 1982)( “He has had difficulty providing for himself and his family since his disbarment”). Shortly after Mr. Onken got sober his wife contracted a protracted illness leaving him the sole breadwinner for her and their teen-aged son. Nevertheless, he has contributed to the community admirably in light of his circumstances.
Working among teamsters and forklifts left Mr. Onken physically tired at the end of the day, but mentally alert. Early on in sobriety he found himself socially isolated and sought out intellectual stimulation though association with academics and others who used the Internet to exchange ideas. It was a community to which he could contribute and he did so by assuming the technical duties and moderation of the listserv group, Netdynam. The position used both his technical and social skills and brought visitors from around the world to his Portland home.
At his work Mr. Onken served as an advisor for a parade of warehousemen, helping them with issues such as college admissions, drug abuse and ethics. He regularly attended and contributed his observations from the standpoint of long-term sobriety to the parade of addicted attorneys who attend AA meetings hosted by the Oregon Attorney Assistance Program.
On the street level Mr. Onken served Scully’s, his AA group. He spent three years as the General Service Representative for the group. In addition, he helped start the non-profit Oregon corporation, Hinten House, as a vehicle to permit his AA group to find a permanent home. In that role he wrote promotional material, wrote and hosted the web page, and prepared the necessary tax documents.
The volume of community service done by Mr. Onken may not match that accomplished by those with more socio-economic advantages but what he has done is a massive improvement over what he did when he was practicing law. During the height of his addiction he was a drain on both his family and the community. That has changed completely. He is now respected for both the support of his family and his contributions to work and community. Despite his own improving fortune, he continued to work with the most disadvantaged of Portland’s addicts. Furthermore, his community service has never been done in anticipation of a readmission proceeding. It began before the matter of his embezzlements arose and continued even during that period of his disbarment where he had no plans to seek readmission to the legal profession.
6. Time Elapsed Since the Original Discipline;
Most jurisdictions require that five years pass before a disbarred attorney is allowed to petition for reinstatement. Five years represents the length of time necessary for a disbarred attorney to rehabilitate himself sufficiently to resume the practice of law. This common statutory requirement is only the starting point. More serious offenses may suggest that a longer time elapse before reinstatement. In re Petrowski, 706 A.2d 1315 (RI 1998). As with any of the Pier elements, however, the appropriate time will depend upon the surrounding circumstances and what the applicant has been doing during that time.
Several elements can play into the determinations whether sufficient time has passed to permit a readmission. In In re Menna, 905 P2d 944 (Cal. 1995) declined to credit the applicant for time he spend in prison and on parole on the grounds that good behavior is mandatory under those conditions. Accord, In re Hird, 21 P3d 1043 (Ok. 2001) In re McWhorter, 534 NW2d 480 (Mich. 1995); But see In re Trygstadt, 472 NW2d 137, (Minn. 1991)(applicant readmitted less than five years after the end of his probation). In Grievance Administrator v. August, 475 NW2d 256 (Mich. 1991) the court held that where an attorney has engaged in a lengthy pattern of misconduct calculated to corrupt the administration of justice then a similarly lengthy period away from the bar ought be required.
Sometimes the date of disbarment, however, is not the most relevant time period to examine. In In re Pool, 517 NE2d 444 (Mass. 1988) the court allowed a readmission after three years observing that the applicant’s misconduct had occurred eleven years prior to the disbarment. See also In re Wegner, 417 NW2d 97 (Minn. 1987)(the court observing that it had been 12 years since his misdeeds, 7-1/2 years since his release from prison, and five years of being chemical free.). In Washington, a state that does not have the five year rule, the court wrote in In re Rosellini, 739 P2d 658 (Wash. 1987) that “This court has never denied reinstatement based solely on the passage of less than 3 or 4 years, nor has it ever denied reinstatement where the petitioner has demonstrated rehabilitation through 5 years of exemplary behavior.”
Mr. Onken committed his crimes in 1986 and 1988. He voluntarily stopped practicing law on the last day of 1989. He began his rehabilitation when he checked himself into residential drug treatment in March of 1992. He was disbarred in the fall off 1994. It has been 13 years since the last crime and over nine years since he began actively addressing his alcoholism and associated character issues. Although there were only five years between his disbarment and the petition for readmission, his self-motivated rehabilitative efforts have been going on much longer. Considering the nature of his crimes and his efforts at reform there is nothing in the national case law that suggests that this current application is premature.
7. Character, Maturity and Experience at the Time of Discipline and Now;
Although character, maturity and experience at the time of the malfeasance is often cited as a factor for analysis in readmission proceedings, one is hard pressed to find even a single case in which it is a deciding issue. This might be partially explained by the fact that the considerations in this area suggest reliance on some disputed stereotypes about age, experience and moral fitness. In In re Pool, 517 NE2d 444 (Mass. 1988) for example the court implied that youth and inexperience ought to influence a court toward readmission as follows:
As serious as his offenses were, they were committed at a time when he was an inexperienced practitioner confronting an unusual and complex criminal case. Such situational pressures cannot be ignored when assessing the likelihood that such misconduct will recur.
Accord, In re Brown, 273 SE2d 567 (W.Va. 1980).
An example from the other end of the spectrum comes from In re Richman, 730 NE2d 45 (Ill. 2000) in which the court observed as follows:
The petitioner was admitted to the Illinois bar in 1959, and he began practicing law in 1960. Thus, at the time of these events the petitioner had been a lawyer for more than 25 years. We believe that his misconduct must be considered particularly egregious in light of his lengthy experience as a lawyer.
There are numerous logical and social policy dangers in concluding that the crimes of the young should be treated more leniently than the crimes of the old, or assuming that older people are intrinsically less capable of reform. However, the issue does not seem to arise in the case of Mr. Onken.
At the time of the last theft Mr. Onken had been in practice about six years. He was thirty-seven years old. Thus, he was mature enough to know better yet a relatively inexperienced lawyer. He had an unremarkable disciplinary record. Thus, there is little to be found in his age and experience that tilts the balance either toward or away from readmission.
If anything, Mr. Onken’s age at the time of this proceeding weighs in his favor. Traditionally, the kind of greed, acquisitiveness and ambition that lead to financial crimes are the character defects of middle age. Mr. Onken just turned fifty and should, by most developmental standards, be outgrowing those particular traits.
8 Current Competency and qualifications to practice law;
Nearly every state requires as a condition of reinstatement that the applicant demonstrate the current competency to practice law. In dealing with this factor the courts have clearly been kind to applicants for readmission who spent their time during disbarment working as a paralegal. E.g In re Pier, 561 NW2d at 300, In re Murry, 558 A2d 710 (Md. 1989). Those cases, however, are inapplicable to Mr. Onken’s facts and offer little guidance. In cases where the applicant has been outside of the legal profession during his disbarment the courts have inquired whether the applicant has remained intellectually active and abreast of current legal developments.
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. In his lectures, delivered at a wide variety of colleges, universities and other public forums, in this country and abroad, he has generally avoided the subject of his personal tribulations in order to concentrate on subjects relating to the United Nations and American foreign policy. He has written two books and has contributed a number of book reviews to periodicals. 333 NE2d at 439
The result was similar in a In re Clark, 607 A2d 1230 (Del. 1992) in which the parties were not as prominent as in Hiss. The court wrote,
The Court recognizes that it is difficult to establish fitness and competence to practice law for an attorney who has been prohibited from demonstrating that fitness and competence for some 23 years. . . .
Nevertheless, the unrebutted testimony in the present record reflects Clark's intellectual acumen, his "sharp intellectual capacity," and his aptitude for a "continuing interest in the law and legal matters."
The court reinstated Mr. Clark conditioned upon his completion of the Delaware Bar Examination. See also, In re v. Davis, 696 SW2d 528 (Tenn. 1985)(requiring the applicant to take the bar exam after being out of the profession for over ten years).
Thus, applicants can find themselves between a rock and a hard place. If they remain in the legal field they risk being blamed for failing to honor the disbarment order or failing the leave the social milieu that spawned their previous dishonesty. E.g., In re Richman, 730 N.E.2d 45 (Ill. 2000). If they leave the legal field they risk losing the learning necessary to demonstrate current legal competence.
The instant case is not that far from Hiss. Mr. Onken worked diligently as a warehouseman to support his wife and family. At the same time he wrote a book, produced scholarly essays in the fields of philosophy and psychology, moderated a fairly sophisticated academic listserv community, developed and maintained a variety of web pages on the internet and began a graduate program in gerontology. No one involved in the case seems to doubt his intellectual capacity and the Bar has not even alleged in its pleadings that he currently lacks legal competency. Testimony will show that he receives email summaries and access to all Oregon Appellate Cases, all Ninth Circuit Cases, selected intellectual property cases, and all U.S. Supreme Court Cases. In addition he participates in email lists that focus on internet, intellectual property, and elder law. Finally, he wrote this trial memo.
Hundreds of attorneys are admitted to practice in Oregon each year fresh out of law school. The majority of them have only a basic legal education and whatever experience they may have picked up on part-time or summer jobs in law firms. The Bar seems to feel that Mr. Onken has at least this amount of skill. However, if the panel has any doubt about Mr. Onken’s current ability, Bar Rule 8.1(C) provides that the court may require Mr. Onken to take and pass the Oregon Bar Exam prior to being reinstated. Mr. Onken does not object to this. All parities, however, seem to accept the fact that Mr. Onken is so adept at taking tests and performing similar academic-type tasks that putting him through the Bar Exam would be little more than an expensive formality.
Restitution to those harmed by a lawyers conduct seems to be one of the most important and difficult elements of any reinstatement case. It is important to the attorney’s recovery and the reputation of the courts in the public mind. However, restitution is not an appropriate concept for every conceivable moral failing. Restitution is applicable only when the obligation arises from wrongdoing. And even in cases of wrongdoing, the raw ability to pay restitution may be more closely related to socio-economic status than moral condition. Like any of the other elements for consideration in a reinstatement case, the importance of restitution depends upon the facts.
As usual courts across the United States have taken very different approaches to restitution. At one end is In re Menna, 905 P2d 944 (Cal. 1995). One of the reasons he applicant in Menna was denied reinstatement, after serious crimes and malfeasance involving hundreds of thousands of dollars, was that he had failed to pay restitution. In response to the suggestion that Menna had insufficient assets to pay restitution, the court noted in a footnote that “ability to pay is essentially irrelevant to whether he has met his burden on the question of rehabilitation.” Even the California Courts, however, have not been uniformly so harsh. In an earlier case, Hippard v. State Bar of California, 49 Cal. 3d 1084, 782 P2d 1140, 1145, 264 Cal Rptr 684 (Cal 1989) the same court has written as follows:
Restitution is to be considered as a factor in the overall factual showing made by the individual seeking reinstatement. The weight that should be attached to whether restitution has been undertaken in whole or in part is dependent upon the applicant's ability to restore the misappropriated funds as well as the attitude expressed regarding the matter.
This appears to be the current majority position.
The reason that restitution cannot be an absolute barometer of moral fitness is that the ability to pay can be the result of situations that have nothing to do with morality. Rich people will be able to pay restitution and poor people will not. This difficulty was explained best in the case of In re Harris, 95 A 761 (NJ. 1915), in which the court wrote:
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. Without underestimating the importance of restitution, a moment's reflection must convince one that of all the factors that enter into the question of moral fitness, the mere circumstance of restitution is the one most likely to be fortuitous and to depend upon conditions and circumstances that afford no reliable test of moral qualities. The money may have come from wealthy relatives, or from a lucky speculation, or from engaging in some alien business venture, or it may have been borrowed, in which case the old liability is apparently extinguished by the creation of a new one. Taken in connection with other circumstances, restitution may be of the utmost significance, but this, oftener than not, is due to such other circumstances rather than to the mere fact of non-restitution; as, for instance, if the former attorney became possessed of sufficient money with which to make restitution but refused so to apply it.
Upon the whole, we conclude that there should be no hard and fast rule upon the subject of restitution, but that each case should be considered and dealt with in the light of its own circumstances, bearing in mind that the aim of the court is to search the heart of the petitioner in order to arrive at a just judgment as to his moral standards as shown in his conduct.
Accord, Greene v Kentucky Bar Ass’n, 904 SW2d 233 (Ky 1995)(applicant admitted although restitution unpaid on $250,000 stolen from investors); In re Clark, 607 A2d 1230 (Del 1992)(applicant admitted although only $25 in restitution had been paid on the $100,000 embezzlement.).
In Mr. Onken’s case the malfeasance was the embezzlements of approximately $900 in the late eighties. It was paid back within days of the matter being brought to his attention. It is true that there were other debts from that time in his life that were discharged in bankruptcy. Those debts, however, did not arise from lawyer malfeasance and thus do not create restitution obligations. In fact the Bar is specifically prohibited by federal law from attempting to revive those debts in this proceeding. After the bankruptcy, Mr. Onken took his fresh start seriously. He worked diligently as a warehouseman, applying his modest income to the needs of his family. There is virtually no national legal support for denying Mr. Onken reinstatement based upon restitution issues.
10. Proof that Resumption of the Practice of Law Within the State Will not be Detrimental to the Integrity and Standing of the Bar or the Administration of Justice, or Subversive of the Public Interest.
The final of the Pier elements looks not at the applicant but to what effect reinstatement will have upon the reputation of the courts and the Bar. To a certain extent this creates dangers at two extremes. At one end the Bar does not want to be seen as a haven for felons. At the other end, the Bar needs to avoid being seen as so inflexible as to deny the fact that lawyers can and do change their lives. As one might expect, unfortunate results at the extremes creates a balancing process. Those courts addressing the public interest issue have tended to balance the severity and notoriety of the applicant’s malfeasance against the Bar’s need to acknowledge reform. To a certain extent this treats famous disbarred lawyers worse than mundane ones.
The best discussion of the public perception issue comes from In re Greenberg, 749 A2d 434 (Pa. 2000). The court defined the problem as follows:
As a member of the bar, petitioner was charged with upholding the laws of this nation. Respondent need not present witnesses to demonstrate that which is painfully obvious: to reinstate an attorney who has committed major felonies by concealing more than $ 2 million from creditors, and then provides false information in court about it, would tarnish the legal profession and adversely affect the public's confidence in lawyers. Given the severity of petitioner's misdeeds, to reinstate him after eight years of disbarment would reinforce the public's perception that lawyers are greedy and dishonest. 749 A2d at 435-436.
The applicant in Greenburg who had put on impressive evidence of rehabilitation argued that he ought not be denied reinstatement on public perception grounds because his crimes had received only limited media coverage. The court responded by asserting that actual public knowledge of the crime is irrelevant. “The operative question is, if the public knew of the petitioner’s transgression, would the fact that he was able to resume practicing law after a mere eight years of disbarment adversely affect the public’s perception of the legal profession.” Other jurisdictions, however, seem to require that the malfeasance have actually received significant public attention. See generally In re Gutman, 599 NE2d 604, (Ind. 1992)(extortion scheme by the President Pro Tem of the Indiana Senate); In re Romano, 615 A2d 476 (R.I. 1992)(attempted theft of precious metals with a value of over $1,000,000 by the counsel to the Senate Judiciary Committee); In re Raimondi, 403 A2d 1234 (Md. 1979)(applicants who were socially connected and wealthy).
The problem with denying readmission in order to protect the reputation of the courts is that the analysis has nothing to do with the applicant, and the courts have an interest in doing justice for everyone who appears before them. The court in In re Allen, 509 NE2d 1158 (Mass. 1987) faced the issue directly. The applicant for readmission in Allen had been a co-conspirator in a fairly notorious arson-for-profit scheme. The court wrote:
We recognize that a few members of the public may be perturbed if petitioner is reinstated. We cannot, however, accept the position that, so long as any member of the public objects, a petition for reinstatement ought be denied. "A fundamental precept of our system (particularly our correctional system) is that men can be rehabilitated. 'Rehabilitation . . . is a "state of mind" and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved "reformation and regeneration.’”
Taking a similar approach, the court in In re McKeon, 656 P2d 179 (Mont. 1982) observed that although there is undoubtedly a good deal of public skepticism when the court admits a lawyer who has been convicted of a felony, the damage is offset by the relatively good experience the court has had in those cases where readmission has been granted. And in In re Rosellini, 739 P2d 658 (Wash. 1987) the court stated that although it might enhance the profession by casting out permanently those the public perceives as wrongdoers, its most fundamental responsibility was the fair adjudication of all cases. Thus, it observed, the honor of the profession is actually best served by applying principles of law to the fully developed facts of individual cases.
Mr. Onken’s case was not reported in the media, and his crimes were not of a magnitude that shocks the conscience. Arguably the reputation of the Bar has suffered more due to the roadblocks that it has put in front of his reinstatement than it could ever suffer for recognizing his rehabilitation. The truth is, however, that the case will probably have no effect whatsoever on how the public views the courts, the bar or lawyers in general. If this is the case, the impetus ought to be not on how the decision will effect the Bar but on what is just and right on the fully developed facts of Mr. Onken’s case.
Dishonesty is a tool or servant of other character defects. It emanates from greed, gluttony, pride and the other traditional human frailties. In Griffith, the Oregon case that sets the standard for readmission, the underlying defect was greed. There was a lot of money to be had and Mr. Griffith went for it. Mr. Onken’s case didn’t involve much money. His crimes were not designed to make him rich nor were they the product of a reasoned balancing of risk and reward. They were crimes of gluttony; crimes designed to feed an addiction and keep the wolf of withdrawal away for one more day. Nevertheless, the standard for readmission remains the same. And it is a legal standard.
In order to be readmitted Oregon law requires Mr. Onken (1) to be currently of good moral character; (2) to have forthrightly admitted his wrongdoing; (3) to have paid restitution to those injured by his malfeasance; (4) to have resolved any substance abuse problems; (5) to have engaged in activities for the public good; and (6) to be sufficiently skilled to be able to practice law in Oregon. Griffith demonstrates that this standard is not beyond the capabilities of an average human being who wants to change. It is a realistic and worldly standard designed simply and fairly to ensure that the misconduct will not reappear.
Mr. Onken is today a different person from the alcoholic who graduated from Willamette Law school and went on to prove that alcoholism and lawyering do not mix. He is nearly ten years away from his last drink and a universe away from the social milieu that drove him to take client funds. He has been punished. He has learned. The public is safe, and Mr. Onken should be allowed to once again join the Oregon State Bar.
Respectfully submitted this _____ day of November, 2001.
 The numbers are actually not that grim. In modern times only five disbarred attorneys have sought readmission. One applicant -- twenty percent of that total -- was readmitted. When contested first time admissions using the same evidentiary standard are included, there are eleven cases and four admissions. The admission rate jumps up to thirty-six percent. A chart containing the reasons for failure to admit in admission and readmission cases is attached to this brief as Exhibit C.
 Since the change to BR 6.1 effective January 1, 1996, disbarment is now permanent in Oregon again. This change does not affect Mr. Onken.