In re Gunter

• Decision Date: 27 March 2008
• Docket Number: (SC S053579).
• Citation: 344 Or. 368,182 P.3d 187
• Parties: In the Matter of the Application for Reinstatement of Bruce A. GUNTER, Applicant.
• Court: Oregon Supreme Court

182 P.3d 187

344 Or. 368

In the Matter of the Application for Reinstatement of Bruce A. GUNTER, Applicant.

(SC S053579).

Supreme Court of Oregon, En Banc.

Submitted on the Record December 11, 2007.

Decided March 27, 2008.

Bruce A. Gunter filed the briefs for himself.

Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, filed the brief for the Oregon State Bar.

PER CURIAM.

Applicant Bruce A. Gunter requests that this court reinstate him as an active member of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1. The Bar admitted applicant to practice in 1982. After moving to California in 1985, applicant transferred to inactive status. The Bar suspended him in 1995 for non payment of Bar dues. Applicant submitted a Form A (nondisciplinary) resignation in 2001. Applicant moved back to Oregon and filed an application for reinstatement in 2005. The Board of Governors determined that applicant had failed to demonstrate that he presently possessed good moral character and general fitness to practice law, and recommended denying reinstatement. This court referred the matter to the Disciplinary Board. After a hearing, a trial panel issued an order denying reinstatement. The trial panel found that, in light of applicant's past alcohol and drug use, and some of his personal financial dealings, applicant had failed to demonstrate by clear and convincing evidence that he presently possessed good moral character and the requisite knowledge and legal ability to practice law. We review that order pursuant to BR 10.2. We agree with the trial panel's ultimate recommendation and deny reinstatement.

REINSTATEMENT STANDARDS

BR 8.1 requires that an applicant make the following showings:

"(b) Required Showing. 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.

"(c) Learning and Ability. In addition to the showing required in BR 8.1(b), each applicant under this rule who has remained in a suspended or resigned status for more than three years or has been enrolled voluntarily or involuntarily as an inactive member for more than five years must show that the applicant has the requisite learning and ability to practice law in this state."

The Bar has the initial burden to provide evidence that the applicant should not be readmitted to the practice of law. BR 8.13. Applicant stipulated prior to the trial panel hearing that the Bar had come forth with sufficient evidence to meet that burden. Accordingly, under BR 8.12, applicant bore the following burden of proof:

"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 means that the truth of the facts asserted is highly probable." In re Johnson, 300 Or. 52, 55, 707 P.2d 573 (1985) (quoting Supove et al. v. Densmoor et ux., 225 Or. 365, 372, 358 P.2d 510 (1961)) (internal quotation marks omitted).

With respect to good moral character, applicant must prove that he is "in all respects * * * a person who possesses the sense of ethical responsibility and the maturity of character to withstand the many temptations which [he] will confront in the practice of law." In re Nash, 317 Or. 354, 362, 855 P.2d 1112 (1993) (internal quotation marks omitted; emphasis in original). This court's concern is whether applicant presently is of good moral character. In re Griffith, 323 Or. 99, 106, 913 P.2d 695 (1996). However, evidence of past conduct "may be relevant to that issue if rationally connected to applicant's fitness to practice law." In re Fine, 303 Or. 314, 317, 736 P.2d 183 (1987).

This court addresses an analogous question concerning a lawyer's past misconduct when it considers the possible reinstatement of a lawyer following disbarment. This court has held that an attorney who seeks reinstatement after disbarment must prove that he or she "has overcome and will not again be influenced by the specific character flaw that led to disbarment." Griffith, 323 Or. at 106, 913 P.2d 695. In this case, applicant has not been disbarred; applicant voluntarily resigned from the bar in 2001. Nonetheless, the Bar submits that the same standard applies when a lawyer seeks reinstatement after engaging in conduct sufficiently serious to warrant disbarment, and that applicant's past conduct meets that criterion. Applicant does not appear to disagree with that analysis. Accordingly, we focus our inquiry on reformation. Id.

FACTUAL BACKGROUND

We review the record that was before the Disciplinary Board de novo, pursuant to BR 10.6. We begin with a detailed consideration of applicant's personal history. Before his application to the Bar, applicant had some history of alcohol and drug use. He testified that, in high school, he had used alcohol and marijuana.¹ At the age of 18, he received a misdemeanor DUII. He continued to use alcohol and other drugs in college, but there was no evidence that any legal problems resulted from his drug use, and he graduated with honors. He then attended Lewis and Clark Law School. During his time there, he was arrested for criminal trespass in a Portland bar after the bartender stopped serving alcohol to him and he refused to leave. None of those facts prevented his admission to the Bar in 1982.²

Following his admission to the Bar, applicant worked as a law clerk at a Portland law firm. He continued to use alcohol and marijuana, but did not do so during work. However, at a firm picnic, applicant had too much to drink and engaged in a verbal confrontation with one of the partners regarding that partner's contributions to the firm. The firm promptly terminated applicant from his job.

In 1985, applicant moved to San Francisco to become a stockbroker. He transferred his Bar membership to inactive status shortly thereafter. He succeeded as a stockbroker, but he also continued drinking and began using cocaine on a regular basis. He checked into a residential treatment unit in 1992, but relapsed soon afterwards. Applicant testified that, around 1994, he began preparing and smoking crack cocaine, and thereafter he "basically didn't stop" for about two years. At some point during that time, applicant's employer, Dean Witter Reynolds Inc. (Dean Witter), terminated his employment for job abandonment, and the Bar suspended applicant for nonpayment of bar dues. An investigative report by the National Association of Securities Dealers (NASD) regarding the dismissal stated that petitioner was fired for "failure to report to work for three consecutive days without notifying immediate supervisor." However, petitioner stated in his deposition and at trial that his job performance before the termination was "excellent," and that he suspected that the firm wanted to get rid of him without having to deal with any kind of legal complications because they suspected that he was "having issues with drugs."

The criminal behavior that concerned the Bar involved three incidents between 1994 and 1996, when applicant was using crack cocaine. First, the police arrested applicant on charges of stalking and verbally menacing his ex-girlfriend. Applicant pleaded guilty to a misdemeanor charge of stalking. He attended an inpatient treatment program at the Betty Ford Center, but relapsed shortly afterwards. Second, applicant was arrested and charged with possession of cocaine on at least one occasion. Third, applicant attempted to steal a girlfriend's car and struck a parking lot attendant with the car, after which the police arrested him on multiple charges. He pleaded guilty to a felony charge of driving under the influence of intoxicants and causing bodily injury.³ Applicant spent a short period in jail and then attended another inpatient treatment program at Henry Ohlhoff House (HOH), and continued to attend meetings of Cocaine Anonymous (CA) for a period of four years. Applicant claimed that, subsequently, he made a conscious decision to stop attending CA due to his discomfort at spending time with former addicts and his desire to spend more time with his family.

There is no evidence of any further drug use by applicant after he left HOH in 1997, but applicant testified that, after his probation for the DUII ended, he began drinking again. When asked why, applicant responded that it "wasn't a conscious decision" and that he had probably "had a moment of weakness," but he also testified that his current use of alcohol was infrequent. The Bar presented testimony by Dr. Walton Byrd, a specialist in addiction medicine, who stated that former addicts who remain clean and sober for five years have only a five percent chance of relapsing into addiction. However, Byrd also testified that applicant was taking a risk by continuing to drink any amount of alcohol, and that the chance of relapse for a "social drinker" such as applicant is closer to 95 percent. Byrd based his testimony about applicant's risk of relapse on a review of the records of applicant's criminal charges, a written statement of applicant's personal history, records of applicant's treatment at HOH, and applicant's deposition. However, Byrd did not personally examine or evaluate applicant at any time. Nothing in the record suggests that applicant's use of alcohol has caused him actual problems since 1997.

After leaving HOH, applicant filed for bankruptcy, in which he obtained an order discharging over $236,000...