IN THE SUPREME COURT OF THE STATE OF OREGON

 

 

 

 

In the Matter of the Application of ORRIN R. ONKEN for Reinstatement as an Active Member of the Oregon State Bar

            

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   Case No.: Case No. SC S57801

 

    OPINION OF THE TRIAL PANEL            

 

 

 

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 Oregon in 1982.  Applicant’s license to practice law was suspended on June 1, 1990 for failure to comply with the Oregon State Bar’s minimum continuing legal education requirements.  His license was again suspended by operation of law effective July 24, 1990 for failure to pay bar dues. While suspended, he sought protection under the bankruptcy code by filing a Chapter 7 petition on May 9, 1990.

 On March 13, 1993, the Board of Bar Governors recommended reinstatement subject to a two-year probation period requiring continued participation by the Applicant in Alcoholics Anonymous. On April 20, 1993, the Oregon Supreme Court entered an Order of Stipulated Conditional Reinstatement.

  On July 7, 1994, the Bar received complaints from Bruce Melkonian, a Portland attorney and former supervisor and partner of Applicant, reporting that he and a former client, Marv Tonkin Leasing Co. had discovered that Applicant had converted $160.00 in 1986 and $656.00 in 1988.  On December 13, 1994, Applicant’s Form B resignation was accepted.  In it, he admitted to the two conversions.

 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 September 10, 2000. The Court immediately referred the application to the Disciplinary Board for a hearing to inquire into the Applicant’s character and fitness.  The hearing occurred before this Trial Panel on November 27 and 28, 2001.

 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 January 1, 1996. See BR 8.1(a)(iii)

 

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 December 29, 2000.  He admits that the conversions occurred but denies all other allegations of the Statement of Objections to Reinstatement.  He affirmatively alleges that he has participated in activities for the public good, that he forthrightly acknowledged his wrongdoing, that he has resolved a “lengthy and serious” substance abuse problem, that he has made a full restitution to those injured by his misconduct and has paid, compromised or otherwise discharged all debts, business and personal, associated with his practice of law, that he has engaged in study related to understanding the issues that led to his misconduct and that he has engaged in a pattern of activity that provided him with the requisite learning and ability to practice law in the state of Oregon.  Reinstatement is sought subject to the following voluntary conditions: (a) that Applicant be required to take and pass the Oregon State Bar examination, complete a course of education or otherwise demonstrate his knowledge of law; (b) that he be required to begin a new or continue an existing program for the prevention of chemical dependency; and (c) that he be required to obtain direction, counseling and approval from the Professional Liability Fund before undertaking to practice law as a business.

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 March 25, 1986 Jones wrote a check to the Applicant for $160.00.  The check noted that it was for “Marv Tonkin vs. Jones.”  The Applicant endorsed the check and deposited the funds into a personal account.

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 June 21, 1988, Mr. Melkonian issued a check from the trust account payable to Marv Tonkin for $656.50.  The check contained the notation: “collection case;Roger Jones.” Instead of delivering the check to the client’s representative, the Applicant endorsed and cashed the check.

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 United States’ submarines.  He testified that once the Applicant entered sobriety, there was zero tolerance in the home for alcohol and that the Applicant’s honesty was consistent while he lived in the home.  Applicant’s wife testified that Applicant was a positive force in her son’s life.

 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 Oregon

             shall have the burden of establishing by clear and convincing evidence

             that the applicant has the requisite good moral character and general

             fitness to practice law and that the applicant’s resumption of the

             practice of law in this state will not be detrimental to the administration

             of justice or the public interest.”

 

Clear and convincing evidence 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 Griffith, 323 Or at 105-106.

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 Griffith at 106-107.   In addition to proving that he or she is of good moral character, the applicant is also faced with proving that the character flaw that led to disbarment has been overcome.  The focus of inquiry in a reinstatement case, therefore, is on reformation of character.  Reformation of character is difficult for an applicant to prove and for this Panel and Court to judge because evidence of morality is “…not ordinarily adducible in positive form.” In re Jolles, 235 Or 262, 275, 383 P2d 388 (1963); In re Griffith, 323 Or at 107.  Nevertheless, proof of reformation of character by clear and convincing evidence is required during the time between the occurrences leading to disbarment and the application for reinstatement.  In re Koken, 214 Or 357, 360, 329 P2d 894 (1958) The Court is entitled to  reasonable assurance that the misconduct which caused disbarment will not reoccur. In re Koken, 214 at 360.

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 Oregon corporation created to find and establish a permanent home for the meetings of an Alcoholics Anonymous group in Portland, known as Skullys.    Skullys is named after the man who was responsible for starting the group in 1944. This particular group of Alcoholics Anonymous stands for a type of no-nonsense, tough love not found in many groups.   The reputation of Skullys is best summarized by a statement contained in a pamphlet explaining the purpose of Hinton House:  “Conventional wisdom is that when the treatment centers, the psychologists and the handholding have failed, it is time to go to Skullys.”  The Applicant has been a member of this group during the entire period of his sobriety. 

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 Griffith, 323 Or at 110.  It is this aspect of the case that causes the most concern for the Bar.  The Bar’s position is that the Applicant fails to appreciate the wrongfulness of his conduct in light of the Applicant’s position that he has no memory of the specific transgressions because he was busy with more serious moral transgressions.  Further, the Applicant has contended that the amount of money involved was not so large as to shock the conscience.  Contrary evidence consists of at least two letters written immediately following the disclosure of the thefts in which the Applicant expressed sorrow for his behavior.   He was also forthrightness in admitting the thefts, and took immediate steps to repay the sums involved.

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 Taylor, 293 Or 285, 647 P2d 462 (1982).  However, the Applicant’s conduct with respect to financial matters is regularly considered in determining moral fitness.  The bankruptcy statutes do not prohibit an examination of the circumstances surrounding the bankruptcy. In re Taylor, 293 Or at 293.  The Bar argues that the bankruptcy shows a selfish exercise of legal rights and a disregard of moral responsibility.  Apart from the fact that the bankruptcy occurred ten years ago and was filed before the Applicant’s recovery from alcoholism, the Applicant has displayed remorse for his actions, and his living circumstances both then and now made it impossible to repay those debts, including those to his ex-wife.  In fact, when the Applicant first sought readmission following his bankruptcy and  treatment for alcoholism in 1993, before the thefts were uncovered, the Bar recommended  a conditional reinstatement.

The facts before the court in In re Taylor, supra, are dissimilar to those present here. In Taylor the applicant discharged student loans in circumstances where the applicant’s current liabilities did not exceed his current assets and immediately before he was  to start a promising new job.  There are no similar facts before us.  The Applicant filed for bankruptcy after leaving the practice of law and discharged the debts of numerous creditors.  He did not turn away from these creditors and begin a new life with a promising job. He remained unemployed for two years, and his alcoholism went untreated for a similar period. Shortly after leaving treatment, his wife became seriously ill and was unable to work. 

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 Griffith, 323 Or at112, however,  that fact cannot be viewed in isolation.  The record as a whole shows that the Applicant’s failure to take those steps is not the result of an unwillingness to pay restitution for his wrongs, or of an unreformed, selfish moral character so much as it is a demonstration of his very limited financial condition and life circumstances at the time of the bankruptcy and for several years thereafter.

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 Oregon State Bar examination.

_________________________                         _________________________

  Dr. Michael Glatt                                               C. Lane Borg

 

                          __________________________

                           Albert J. Bannon, chairman