IN THE SUPREME COURT OF
THE STATE OF
In the Matter of the Application of ORRIN R.
ONKEN for Reinstatement as an Active Member of the
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.
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
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
We recommend reinstatement.
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
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.”
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
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:
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.”
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