IN THE SUPREME COURT OF
THE STATE OF
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In the Matter of the Application of ORRIN R.
ONKEN for Reinstatement as an Active Member of the |
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Case
No.: Case No. SC S57801
OPINION OF THE TRIAL PANEL
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Bar Counsel: Stacy J.
Hankin and the volunteer services of Stephen R. Frank of the law firm of Tooze
Duden Creamer Frank & Hutchison.
The Applicant
represented himself.
Trial
Panel: C. Lane Borg, Dr. Michael Glatt,
Public Member, and Albert J. Bannon, chairman.
INTRODUCTION
Applicant,
Orrin R. Onken, has applied to the Oregon Supreme Court to be reinstated as an
active member of the Oregon State Bar pursuant to Bar Rule of Procedure (BR)
8.1. Applicant was first admitted to
practice in
On
On
On January 4, 2000, an application for
reinstatement pursuant to DR 8.1 was submitted by Applicant.* The Board of Bar Governors conducted an
investigation pursuant to BR 8.7(a) and, on July 21, 2000, recommended to the
Supreme Court of Oregon that the application be denied. Applicant filed a petition for review on
In its Statement of Objections to
Reinstatement, the Bar opposes reinstatement on the ground that the Applicant
does not possess good moral character or general fitness to practice law. As evidence, the Bar points to the two
conversions and (1) Applicant’s
* The Rule prohibits
someone in Applicant’s
position from seeking reinstatement if the disciplinary proceeding resulting in
disbarment occurred after
alleged failure to demonstrate
an acknowledgement of the wrongfulness and seriousness of, and his individual
responsibility for, his misconduct, (2) Applicant’s failure to demonstrate that
he is now committed to the legal profession, the administration of justice, and
the public good, and (3) Applicant’s
failure to pay restitution.
Applicant’s Answer was
filed on
We recommend
reinstatement.
FACTS
We make
the following findings of fact by clear and convincing evidence.
The material facts
giving rise to the Form B resignation are undisputed. In 1986, the Applicant worked in the offices
of Melkonian & Associates. The firm
was retained to pursue collection of a judgment against Roger Jones. Jones made monthly payments on the judgment
to the firm. On
In June,
1988, $1,262.10 paid by Mr. Jones on the above-mentioned judgment was held in
the lawyer trust account of Bruce Melkonian and Applicant. On
Applicant admitted
having cashed both checks, but claimed to have no memory of either event. He is an alcoholic and was drinking heavily
at the time. The disciplinary proceedings that followed resulted in the Form B
resignation which we treat as a disbarment for
misconduct.
The
Applicant presented a number of witnesses who have knowledge of him personally,
professionally, and through his association with Alcoholics Anonymous. The
overall impact of these witnesses was to establish in a clear and convincing
manner that the Applicant has undergone significant changes in his life and
character, and that he now is a contributing member of society possessing the
necessary moral character and fitness to practice law.
Michael Sweeney’s testimony was especially
helpful in understanding a disease that strikes at double the national average
in professionals due to the high degree of stress and depression found in
professionals. Some effort is made in
this opinion to describe the symptoms of alcoholism and how they manifest
themselves, particularly in professionals.
Alcohol,
it seems, is the drug of choice for professionals, especially among women. Dishonesty is only one of the manifestations
or symptoms of the disease. Mr.
Sweeney, who has written and lectured extensively about alcoholism, testified
that the Applicant’s recovery was solid and on a strong footing. After five years of sobriety, an alcoholic’s
chances of remaining sober rise to ninety percent. Applicant has been sober for
approximately ten years. It was Mr. Sweeney’s view that the Applicant had much
to offer the profession and has been involved in serious personal work in an
effort to build a permanent home for Alcoholics Anonymous chapters.
Dr. Michael Horowitz testified on behalf of
Applicant. He is board certified in
family medicine but has spent his career dealing with substance abuse and has
developed a sub-specialty in psychiatry.
He conducted a standard psychiatric interview or mental status
examination of the Applicant to determine whether there was some concomitant
psychopathology to the alcoholism or evidence of a thought disorder,
psychiatric illness, long-standing mood disorder or more
vague pattern of a personality disorder.
He found none. He testified that
Applicant’s history demonstrated a substance abuse problem with severe
depression. In order for the alcoholic
to maintain a rudimentary sense of self esteem in the midst of self-destructive
drinking, Dr. Horowitz testified that most alcoholics build an elaborate series
of lies to allow themselves to continue their drinking associated pattern of
life. Dr. Horowitz testified that
impairment of memory with drug and alcohol abuse and severe mood disorders is a
well-recognized phenomenon. Often, the alcoholic will transgress his or her own
moral standards in the midst of the disease.
Dr. Horowitz testified that, based upon his
examination, Applicant demonstrated a more that usual degree of self-knowledge
and integrity and that within the Alcoholics Anonymous group both he and
Applicant attend, Applicant is viewed as an embodiment of right conduct. In
other words, Applicant has completely reformed his character.
Dr. Walter Byrd was also called as an expert
witness. He is board certified in
addiction medicine and, because of his extensive experience with addiction in
professionals, acts as a consultant to the Professional Liability Fund.
Dr.
Byrd testified that professionals suffering from addiction will usually remain
hidden until the disease has caused a heavy amount of social destruction, such
as the loss of a license to practice medicine or law. Once in an addictive disease, the addict
develops strong defense mechanisms that suppress reality. These include denial, rationalization,
minimizing and deception. The disease drives the person from one crisis to
another in increasing severity until the person is forced to seek professional
help. Once sobriety is reached, however,
the person will return to his or her norm.
The success rate for the addicted professional is high, according to Dr.
Byrd.
Dr. Byrd’s diagnosis of Applicant was of alcohol
dependency in full and complete remission.
Dr. Byrd testified that Applicant admitted himself to a treatment
facility, stopped all drinking and bonded intensely with Alcoholics Anonymous
and with the Professional Liability Fund’s Lawyer Recovery program. Dr. Byrd
found the Applicant’s recovery to be remarkable.
Dr. Byrd was asked by the PLF to perform an
independent evaluation of the Applicant’s current level of recovery. Dr. Byrd testified that Applicant possesses
good moral character and the requisite fitness to practice law. He is of the opinion that the embezzlements
by Applicant were directly related to untreated alcoholism and substance abuse
and are the usual features of the disease.
The Applicant, in Dr. Byrd’s view, progressed into the late stages of
the disease at an early age but is now in full recovery. He found nothing to preclude his return to
the active practice of law providing he enters a “professional recovery
contract to include random urine monitoring.”
His examination and psychological testing demonstrated no significant
abnormal personality traits and no evidence of anti-social disorder or criminal
traits. Lastly, and most significantly
according to Dr. Byrd, the Applicant demonstrated integrity in his character.
There
were a number of other witnesses from the Applicant’s family and work, whose
testimony was uniformly supportive of the Applicant. Each had a different story to tell, but each
testified that the Applicant had undergone a basic change in personality. According to Applicant’s wife, he had been riddled
with guilt about the debts he discharged in bankruptcy. His sister-in-law pointedly testified of how
he had made a total change in his life, atoning for the injury to his wife and
adopted son. She testified that she
would now trust her son to his care.
Applicant’s mother-in-law testified that she could
not believe that someone could make such a complete change in his life, but,
because of those changes, she would now trust the Applicant with anything.
Todd
Donnelly, Applicant’s supervisor at W.L.
May Company for nine years, testified that Applicant was extremely trustworthy
and honest in both his work and non-work related conduct, and that he assisted
other employees with drug-related problems,
His supervisor found him “painfully” honest, refusing even to take
advantage of work conditions that would have allowed him overtime pay. Another
manager from W.L. May Company, Robert Brehm, also had the opportunity to
observe the Applicant during work hours and on numerous social occasions over a
period of nine years. He found the
Applicant to be candid in his opinions and honest and trustworthy. Mr. Brehm testified: “I don’t know very many
really good people. He happens to be one
of them.”
While
the demeanor of each of these witnesses substantially added to their
credibility, none was more convincing than the testimony of his wife’s son,
Dustin McCue, now serving with the U.S. Navy as a Yeoman Third Class aboard one
the
Applicant and his wife provided detailed
information about the transformation in the Applicant’s life after
sobriety. His wife also described how
horrible and guilty
Applicant felt when the two thefts were discovered. By that time, Applicant had been in recovery
for approximately two years. Applicant
took full responsibility for the thefts and the amounts were immediately
repaid. When he filed for bankruptcy,
his wife testified,
Applicant had no choice.
According to his wife, Applicant did not want to file for bankruptcy and
he did not do it to try to hurt his former wife. Financially, however, he had
no choice. She also testified that it was Applicant who
made the decision that he needed treatment for his alcoholism. When he returned from treatment, their lives
changed and because of his sobriety they could no longer spend time with the
same social group. The Applicant also
wrote a book, with
illustrations, about his recovery process.
This led to the purchase of a computer and the Applicant’s involvement
with intellectuals from all over the world through the internet and the
net-group, Netdynam, owned by the Applicant.
His wife testified that following treatment, Applicant was also able to
work “an honest day’s work for an honest day’s pay, “ even
though he was unable to obtain work in any area connected with his previous
profession. She contracted autoimmune angioedema
shortly after he completed treatment for alcoholism that affected her
short-term memory and her ability to do math, a requirement at work. The Applicant took care of her throughout
this period and continued his work at a warehousing company, W.L. May Company,
supporting his new family. Both the Applicant and his wife have been sober for
approximately ten years.
BR 8.1(b) provides:
“Each
applicant under this rule must show that the applicant has good
moral character and general fitness to practice law and that
the resumption
of
the practice of law in this state by the applicant will not be detrimental to
the administration of justice or the public interest. No applicant
shall resume the practice of law in this state or active
membership status
unless all the requirements of this rule are met.”
The Applicant has the burden of proof. BR 8.12 provides:
“An
applicant for reinstatement to the practice of law in
shall have the burden of establishing by clear and
convincing evidence
that the applicant has the requisite good moral character
and general
fitness to practice law and that the applicant’s resumption
of the
practice of law in this state will not be detrimental to the
administration
of justice or the public interest.”
Clear
and convincing evidence simply means that “…the truth of the facts asserted is
highly probable.” In re Griffith, 323
Or 99, 105, 913 P2d 695, 699 (1996)
Further, any significant doubt about whether an applicant for
reinstatement has sustained that burden must be resolved in favor of protecting
the public interest by denying reinstatement. In re
The
question for this Panel is whether the Applicant is a person who possesses the
sense of ethical responsibility and the maturity of character to withstand the
many temptations which a lawyer will confront in the practice of law. In re Nash, 317 Or 354,
362, 855 P2d 1112. The Panel is
ultimately faced with answering the question of whether the applicant presently
is of good moral character.
The Supreme Court has held that if a lawyer has
been disbarred for past conduct, clear and convincing evidence of good moral
character will be necessary for reinstatement. In re
The Applicant’s alcoholism, although not
asserted as a defense to the original charges of misconduct, remains of serious
concern to the Panel. Without sobriety,
there is no reasonable assurance that the misconduct that brought disbarment
will not reoccur. On the other hand, the
Applicant has nearly ten years of sobriety behind him with no relapses. It is a sufficient period of time to give
this Panel assurance of continued sobriety.
Coupled with other evidence presented by the Applicant, both lay and expert
witnesses, this Panel is convinced that it will continue.
The Applicant has the burden of showing that he
has overcome the dishonesty that resulted in his disbarment. That burden has
met by the Applicant through the testimony of co-workers, family members,
professionals and the Applicant himself.
The Court in In re Griffith, 323 Or at 107, described the following types of
evidence as relevant to an inquiry into reformation of character: 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; and evidence of the applicant’s forthrightness in acknowledging
earlier wrongdoing.
The best evidence of reformation of character
comes from a variety of sources. The
Applicant worked in a warehouse setting for over nine years for W.L. May Company. Applicant’s supervisors provided convincing
testimony of his reformed personality in both social and non-social settings
over an extended period of years. One of
his supervisors, Todd Donnelly, testified that at times Applicant was
“painfully honest” with respect to questionable practices in the workplace that
had been acceptable until the Applicant began work. He made his opinions known, in spite of the
obvious risk to his continued employment.
Mr. Donnelly pointed out that the Applicant had extensive contact with
his fellow workers, some coming to him for counseling on drug and alcohol use. Although there were opportunities for
dishonesty, Mr. Donnelly implicitly trusted the Applicant.
There is other ample evidence that the
Applicant has taken steps to reform his
character. This evidence comes from four sources:
co-workers, family, community service contacts and professionals who have
examined him.
The
evidence demonstrates that the Applicant left the practice to prevent further
damage to the public, that he eventually sought treatment for his alcoholism,
and that he promptly admitted the thefts when presented with them. He has fully admitted his responsibility for
the crimes and has accepted the sanction imposed upon him.
With respect to activities for the public good,
the Applicant is one of the driving forces behind the formation of Hinton
House, a nonprofit
The
Applicant has also been deeply involved in at least two internet discussion
groups and has authored an article dealing with the pragmatist theories of
James Dewey as they relate to Alcoholics Anonymous. Members of Netdynam, all of them
professionals, have come from all over the world to personally meet the
Applicant.
An important aspect in addressing the question
of reformation of character is whether the applicant has acknowledged his or
her wrongdoing and
taken responsibility for his or her misconduct. In re
The Bar also addresses the issue of the
Applicant’s bankruptcy. The Bar
acknowledges that the filing for bankruptcy cannot be considered by this Panel or the Court in determining
moral fitness. In re
The facts before the court in In re
Evidence of the failure on the part of Applicant to repay
debts owed to his ex-wife does demonstrate that
Applicant has not made complete restitution for the bankruptcy. Clearly, if he had repaid at least the debt
to his ex-wife, those actions would make for a stronger case for Applicant’s
willingness to pay restitution. As in
In short, the Applicant has acknowledged his
wrongdoing, has taken steps to reform his character, and those changes in
conduct and personality have been confirmed by professional and lay witnesses
who have been in a position to observe the Applicant in all areas of his
life.
Unlike Griffith,
323 Or 99, 913 P2d 695 (1996), the Applicant did not refuse to admit his
misconduct and his statement regarding
the relatively small amounts involved in the thefts should not be used as
evidence that he has minimized the gravity of his misconduct. It is an undeniable fact that the amounts involved in the
thefts are small. In spite of that
reality, the Applicant has made it clear that when they were uncovered, he was
“horrified and guilt ridden” and took immediate steps to make repayment and
offered his apologies to the client.
During his disbarment proceeding, the Applicant never asserted that
alcohol or any other personal problems were the cause of his misconduct. Even at the present hearing, it was the
testimony of the two physicians and Mr. Sweeney that made it clear that the
conduct engaged in by the Applicant was a typical symptom of the
alcoholic. The Applicant has maintained
complete responsibility for the thefts.
The Applicant has been faithful to his sobriety,
and has strengthened his relationships with his family, friends and
co-workers. The evidence of reformation
of character is not only clear and convincing, it is
substantial and impressive in the complete reversal of habits that consumed the
Applicant for years.
After considering all of the evidence, this
Panel concludes that
Applicant has sustained his burden of proving by clear and
convincing evidence that he has reformed the deficiencies in those character
traits that led to his disbarment. Additionally,
he possesses the good moral character and general fitness required to practice
law, and his resumption of the practice of law will not be detrimental to the
administration of justice or to the public interest. It is recommended that the application for
reinstatement be granted and that it be conditioned on Applicant’s agreement to
enter a professional recovery contract to be administered by the Professional
Liability Fund and include random urine monitoring, continued attendance at the
meetings of Alcoholic Anonymous and any other condition imposed by the Fund in
its reasonable judgment for a probationary period of two years. Further, it is a condition of this
recommendation that the Applicant take and pass the
_________________________
_________________________
Dr. Michael Glatt
C. Lane Borg
__________________________
Albert J. Bannon, chairman