Gortmaker, In re

• Decision Date: 16 November 1989
• Citation: 308 Or. 482,782 P.2d 421
• Parties: In re Application of Gary D. GORTMAKER, For Reinstatement to the Practice of Law in Oregon. SC 27452.
• Court: Oregon Supreme Court

Page 421

782 P.2d 421

308 Or. 482

In re Application of Gary D. GORTMAKER, For Reinstatement to the Practice of Law in Oregon.

SC 27452.

Supreme Court of Oregon.

Submitted on Record and

Briefs July 6, 1989.

Decided Nov. 16, 1989.

Martha M. Hicks and Teresa J. Schmid, Asst. Disciplinary Counsel, Oregon State Bar, Lake Oswego, for the Oregon State Bar.

Gary D. Gortmaker, pro se.

Before PETERSON, C.J., and LINDE, JONES, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

PER CURIAM.

Applicant Gary D. Gortmaker seeks reinstatement to membership in the Oregon State Bar (Bar). This court summarily suspended him from the practice of law in 1980 upon his conviction of crimes. The Bar's trial panel recommends against reinstatement. On de novo review, we deny reinstatement.

I.

Applicant was admitted to practice law in Oregon in 1957 and served as Marion County District Attorney from 1965 until 1980. In 1980, he was charged with three counts of first degree theft, two counts of tampering with public records, two counts of unsworn falsification, and one count of first degree official misconduct, resulting from actions he took in his official capacity as District Attorney. After trial, a jury found him guilty of all eight counts. ¹ His convictions were affirmed on appeal. State v. Gortmaker, 60 Or.App. 723, 655 P.2d 575 (1982), aff'd 295 Or. 505, 668 P.2d 354 (1983), cert. den. 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984).

In November 1980, this court summarily suspended applicant from the practice of law. See former Section 4, Oregon State Bar Rules of Procedure Relative to Admission, Discipline, or Resignation and Reinstatement (July 1978) ².

In December 1987, applicant petitioned the Oregon State Bar for reinstatement. The Bar's Board of Governors reviewed and forwarded the petition to this court with its recommendation against reinstatement. Applicant had 28 days to petition for review. See BR 8.6, infra, at n 4. He did not do so. In June 1988, we denied his reinstatement.

In August 1988, applicant requested that this court review the Board of Governors' adverse recommendation and terminate his suspension, or establish a date certain for his reinstatement. ³ The Bar opposed applicant's requests but did not oppose referring the matter to its Disciplinary Board for trial. See BR 8.6. ⁴ Applicant then moved to withdraw his request for review, asking instead that we terminate his suspension without further involvement of the Disciplinary Board. We allowed him to withdraw his request for review and referred his application for reinstatement to the Disciplinary Board for trial.

In October 1988, the Bar filed its statement of objections to applicant's reinstatement, and he responded in November 1988. A Disciplinary Board trial panel heard the matter and filed its opinion in January 1989. ⁵ The trial panel concluded that applicant had not shown by clear and convincing evidence that he has the requisite good moral character and general fitness to practice law and that his resumption of the practice of law will not be detrimental to the administration of justice or the public interest. BR 8.10. ⁶ The trial panel recommended that his petition for reinstatement be denied.

In March 1989, applicant asked this court to terminate his summary suspension, to "discard" the trial panel's recommendation, to refer his case to a new trial panel or to refer his case to the original trial panel with instructions, and to stay these proceedings while he pursues post-conviction proceedings in the underlying criminal case. ⁷ The Bar opposed applicant's several motions and moved to strike them for noncompliance with ORAP 4.05, 7.05 and 7.23. We denied the Bar's motion to strike and allowed applicant 28 days to petition for review.

In May 1989, applicant filed a "Petition for Modification of Panel Decision," a "Waiver of Brief," and a supporting memorandum, asking us "to consider de novo upon the record the recommendation of the Bar panel * * * and to modify in part the conclusions expressed" and to reinstate him "subject to conditions or otherwise." We treated those materials as a petition for review and a waiver of further briefing. Applicant waived oral argument. We now consider his application on the record and the parties' submissions.

II.

The purpose of professional discipline is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to their clients, the public, the legal system, and the legal profession. See In re Germundson, 301 Or. 656, 664, 724 P.2d 793 (1986); In re Bristow, 301 Or. 194, 206, 721 P.2d 437 (1986); see also ABA Standards For Imposing Lawyer Sanctions (1986) 1.1.

An applicant for reinstatement to the practice of law has the burden of establishing by clear and convincing evidence that he has the requisite good moral character and general fitness to practice law and that his resumption of the practice of law will not be detrimental to the administration of justice or the public interest. See BR 8.10, supra; In re Graham, 299 Or. 511, 521, 703 P.2d 970 (1985); In re Bevans, 294 Or. 248, 251, 655 P.2d 573 (1982). "Clear and convincing evidence" is evidence sufficient to establishes that the truth of the facts asserted is highly probable. Riley Hill General Contractor v. Tandy Corp., 303 Or. 390, 402, 737 P.2d 595 (1987); In re Johnson, 300 Or. 52, 55, 707 P.2d 573 (1985). The Bar has the initial burden of producing evidence that an applicant should not be readmitted to practice. BR 8.11. The applicant for reinstatement, however, has the ultimate burden of proving good moral character and general fitness to practice law. This court reviews de novo. ORS 9.539; BR 10.6. On review, our primary focus is upon applicant's post-suspension conduct.

III.

The record contains evidence supporting the trial panel's recommendation against reinstatement. First, applicant has failed to come to grips with his 1980 convictions. The trial panel concluded and we agree with its conclusion that:

"Mr. Gortmaker believes he was wrongly charged and convicted of the felony."

Applicant states that he does not believe he is guilty of the crimes for which he is convicted. He argues that it would not make him a better lawyer or demonstrate better character to acknowledge "a degree of guilt he did not truly feel or believe." He states that the record is not clear how much money he used illegally. He offers letters from "expert(s) in fiscal accounting and audits," apparently to persuade us that his 1980 jury convictions were wrongful or to minimize the extent of his crimes or both. He argues that the information in those letters makes it difficult for him to accept the magnitude of the charges against him. He also argues that he has grounds for post-conviction relief "because his trial attorney was unprepared and did not even appear on every day of the trial."

The grounds for applicant's suspension are relevant to his application for reinstatement only insofar as they reflect upon his present character and general fitness to practice law. See In re Bevans, supra, 294 Or. at 251, 655 P.2d 573. We find instructive the comments of the trial judge who sentenced applicant in 1980. The trial judge summarized some of these comments as follows:

"The [trial judge commented that the] activities of Mr. Gortmaker were a gross breach of public trust; large sums of money were involved in the theft count; the actions of Mr. Gortmaker resulting in the thefts of money involved an elaborately planned scheme; and Mr. Gortmaker's conduct continued over a period of years.

"Further, the trial judge stated that this was not simply a case of theft and it was not simply a case of theft by a person who happened to be in a public office; rather, he said ' * * * it's a case of theft of government funds and the theft of government funds were related to the conduct of his office. And his office was the chief law enforcement office of Marion County.'

" * * * * *

"4. In the same sentencing proceedings, the state and the trial judge were not able to identify a precise amount of funds that had been stolen by Mr. Gortmaker. The court decided that if it was to err, it would err on the side of not imposing restitution in an excessive amount, and this resulted in the restitution order of $15,000."

We also find relevant the following remarks the trial court made at the sentencing hearing:

"The public lost a number of thousands of dollars because of this crime. But the loss of public funds is not the most serious aspect of the crime; rather, it's the loss of confidence in our institutions. There is a sizable cynical minority of * * * citizens who choose to believe that all elected officials are dishonest and that is shown by at least one of the letters that I read. The conviction in this case serves to confirm their suspicions and raises questions in the minds of many others as to the extent of official corruption. And I think that is the greatest harm that's done by the defendant in connection with this case."

Second, applicant also persists in minimizing the gravity of his crimes. The trial panel found:

"11. In his Application For Nursing Home Administrator Provisional License to the Board of Examiners of Nursing Home Administrators, dated october [sic ] 8, 1987, Mr. Gortmaker stated he had been convicted of a felony, but that he had not been convicted of a crime involving moral turpitude. As a 'special explanation' on the application, Mr. Gortmaker explained his felony conviction as follows:

" 'In 1980 Gary Gortmaker received a Class C felony conviction. It was for, under the prosecutor's theory, receiving a benefit of more the [sic ] $200. This was under the general statute entitled Theft. He was District Attorney at the time.

" 'Further information should tell that Mr. Gortmaker was NOT convicted of stealing, pocketing, embezzling or...