Conduct of Carstens, In re

• Decision Date: 22 May 1984
• Citation: 683 P.2d 992,297 Or. 155
• Parties: In re Complaint as to the CONDUCT OF Kurt CARSTENS, Jr., Accused. SC 28534.
• Court: Oregon Supreme Court

Page 992

683 P.2d 992

297 Or. 155

In re Complaint as to the CONDUCT OF Kurt CARSTENS, Jr., Accused.

SC 28534.

Supreme Court of Oregon In Banc.

Argued and Submitted March 5, 1984.

Decided May 22, 1984.

Thomas C. Tankersley, McMinnville, and M. Chapin Milbank, Salem, argued the cause and filed the brief for the Oregon State Bar.

Gordon L. MacPherson, Newport, argued the cause and filed the brief for the accused.

PER CURIAM.

The Oregon State Bar filed a complaint against Kurt Carstens, Jr. accusing him of unethical conduct in six separate causes. All causes arise, directly or indirectly, from the accused's signing of his wife's name to the certificates of title to three items of jointly owned personal property--a pickup truck, a boat trailer, and a boat.

The Bar's complaint is dated August 17, 1982. The Trial Board found the accused guilty of only one cause of complaint and recommended that he receive a public reprimand. The seven member Disciplinary Review Board found the accused not guilty of all charges. We find the accused guilty of one cause of complaint and not guilty of the remaining causes.

Oregon Laws 1983, Chapter 618, made substantial changes in the laws relating to the discipline of lawyers. However, that chapter provides that any proceedings pending on January 1, 1984, shall be completed as provided in the former statutes. ¹

The accused was admitted to the practice of law in 1972. He married Denise Carstens in July, 1977. The marriage was described as "stormy" with a relationship that was "on again, off again." A petition for dissolution was filed in April, 1980. The wife moved back into the couple's residence in February, 1981, and continued to reside with the accused until October, 1981. The trial judge who entered a decree of dissolution in September, 1982 noted in a letter opinion that "the parties actually lived together as man and wife for a total of 39 months."

During the marriage the parties acquired a 1976 Ford pickup truck, and 18.6 foot Gregor Jet Sled boat and a light boat trailer. The title to each was registered with the State of Oregon in the joint names of Kurt Carstens and Denise Carstens.

In February, 1981, after the petition for dissolution had been filed, but while the parties were living together in an attempt to reconcile, the accused discussed with his wife the potential tax advantages of transferring the boat trailer and the boat to his professional corporation. Later the same month, without his wife's express permission or knowledge, he signed her name to the certificates of title and forwarded them to the proper state agencies with instructions to "issue a new certificate showing the owner to be Kurt Carstens, P.C., an Oregon professional corporation."

On October 2, 1981, after the reconciliation had failed, John Chasteen, Jr. came to the accused's law office and offered to buy the pickup truck for $4,000. Chasteen was a young adult commercial fisherman whose mother was the bookkeeper for the accused's law firm. The truck had been valued in the pretrial discovery in the dissolution case in a range of $2,450 to $3,000. The accused called Richard D. Beeson, a lawyer who was representing him. Beeson advised him to sell the truck. Chasteen paid the accused in cash. The accused signed both his and his wife's names to the certificate of title and delivered it to Chasteen. ² The accused deposited the $4,000 in one of his individual savings accounts.

On October 4, 1981, the accused left a note for his wife at the residence. In part it read:

"On Friday afternoon John Chasteen Jr. offered me $4000.00 cash for the truck--Given the condition of the truck and its age it was a good deal for us--and you didn't want it--so I sold it. But I'll need to get a replacement and that will put us (me) further in the hole. But it was 1500-2000 more than I expected to get."

Thereafter the wife contacted the police and instigated a criminal investigation claiming that her name on the title had been forged. In mid-October the wife found the boat and trailer registrations in the name of the professional corporation in a kitchen drawer at the residence and requested the police to make a further investigation.

The grand jury of Lincoln County returned three indictments against the accused. ³ Copies of the indictments are not a part of the record in this proceeding, but the memorandum opinion of the trial judge who tried the subsequent criminal case stated:

"The first indictment charges two counts of forgery and one count of the theft involving the boat trailer. The second indictment * * * charges two counts of forgery and one count of theft involving the boat. The third indictment sets forth two counts each of forgery and theft involving the pick-up truck." (Emphasis in original.)

The accused's wife was the alleged victim in all counts of the indictments except one count of theft and one count of forgery involving the pickup truck where John Chasteen, Jr. was the alleged victim.

The criminal cases were consolidated and tried without a jury on January 28, 1982. The trial court dismissed all counts involving theft where it was alleged that accused's wife was the victim. It was stipulated that the accused and his wife were living together at the specific times alleged in the counts involving the boat trailer and the boat. The trial court ruled that "ORS 164.035(4) clearly directs that those thefts be dismissed." ⁴ The trial court also reasoned that the alleged theft of the pickup wherein the wife was the alleged victim must also be dismissed by virtue of ORS 164.105(2), 164.015 and 164.005(4).

The trial court also dismissed all counts of forgery wherein it was alleged that the wife was the victim. It found that "there simply is no evidence that Mrs. Carstens might be injured" from the accused's use of the titles. To support its position the trial court cited ORS 165.007, 165.013, 161.085(7), State v. Leonard, 73 Or. 451, 144 P. 681 (1914) and State v. Lurch, 12 Or. 99, 6 P. 408 (1885).

After dismissing the counts of theft and forgery wherein the wife was the alleged victim there remained only one count of theft and one count of forgery. In each count the alleged victim was John Chasteen, Jr. The accused was found guilty of the two remaining counts. The trial court found that Chasteen had been injured by the accused's conduct. It reasoned that when the accused signed his wife's name to the title to the pickup the document was rendered void. Thus the victim "ended up with something less than what he had paid for and cannot now convey ownership of the vehicle."

The trial court merged the forgery conviction with the theft conviction and entered a sentence on the theft conviction only, declaring it to be a Class A Misdemeanor by virtue of ORS 161.705. The accused was sentenced to five months in jail. The execution of the sentence was suspended and he was placed on five years probation. ⁵

The accused appealed his conviction to the Court of Appeals. The criminal proceeding terminated with that court affirming without opinion in April, 1983. 62 Or.App. 663, 662 P.2d 813 (1983).

The dissolution case was tried on July 29, 1982. Thereafter the trial judge entered a decree dissolving the marriage which in effect awarded the boat trailer, boat, and pickup truck to the accused.

The Oregon State Bar filed its formal complaint against the accused on August 17, 1982. The complaint sets forth six separate causes which are summarized as follows:

(1) The accused was found guilty of Forgery in the First Degree and Theft in the First Degree by the Lincoln County Circuit Court sitting without a jury. The convictions each "constitute the conviction of a felony under and within the meaning of ORS 9.480(2)."

(2) The Lincoln County Circuit Court entered a final judgment of conviction for the crime of Theft in the First Degree as a Class A Misdemeanor and sentenced the accused "as for a misdemeanor." The conviction constitutes a conviction of a misdemeanor involving moral turpitude under and within the meaning of ORS 9.480(2).

(3) The accused with intent to injure and defraud falsely altered and uttered a certificate of title to a boat trailer knowing it to be forged. Further, as a part of the same transaction the accused committed theft of Denise K. Carstens' joint ownership in said boat trailer of the total value of $200 or more. The aforesaid conduct was unethical and in violation of DR 1-102(A)(3) and (4).

(4) The fourth cause of complaint is the same as the third cause, except that the subject matter is the boat and the certificate of title to it.

(5) The accused with intent to injure and defraud falsely altered and uttered a certificate of title to a 1976 Ford pickup knowing it to be forged. As a part of the same transaction the accused committed theft of property of a value of $200 or more by selling to John Chasteen, Jr. a 1976 Ford pickup truck without disclosing to Chasteen an adverse claim. Further, the accused committed a theft of Denise K. Carstens' joint ownership in said Ford pickup of a total value of $200 or more. The aforesaid conduct was unethical and in violation of DR 1-102(A)(3) and (4).

(6) This cause realleges the gravamen of the first, third, fourth and fifth causes of complaint. The aforesaid conduct and course of conduct of the accused in the aggregate "was and is detrimental and prejudicial to the honor, integrity and standing of the profession of lawyer, the practice of law and the administration of justice of this state, and was and is subversive to the public interest; it constituted and constitutes conduct rendering the Accused unfit to practice law" and violates DR 1-102(A)(3), (4), (5) and (6).

Former ORS 9.480(2) (now ORS 9.527(2) ) provides:

"The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that:

" * * *

"(2) The member has been convicted in any...