Lenske, In re

• Decision Date: 27 June 1974
• Citation: 523 P.2d 1262,269 Or. 146
• Parties: In re Complaint as to the conduct of Reuben G. LENSKE, Accused.
• Court: Oregon Supreme Court

Page 1262

523 P.2d 1262

269 Or. 146

In re Complaint as to the conduct of Reuben G. LENSKE, Accused.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 14, 1974.

Decided June 27, 1974.

Reuben G. Lenske, in pro. per.

William B. Crow and James A. Larpenteur, Jr., Portland, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM.

This is a disciplinary proceeding brought by the Oregon State Bar against the accused. The complaint alleges that in an action in the state circuit court the accused testified that he and his wife were the owners of certain real property and that this sworn testimony was contrary to testimony he had given in a previous criminal action against him in the United States District Court, in which he had testified that his brother-in-law was the owner of such property. ¹ The bar alleges that one or the other sworn statement was untrue and was intended to mislead the court. ²

The issues arising from the complaint and defendant's answer were heard by a trial committee of attorneys which found the accused guilty and recommended that he be suspended from the practice of law for two years. Those findings and recommendations were approved and adopted by the Board of Governors of the Oregon State Bar as recommendations to this court. The accused has petitioned for a reversal of those findings and recommendations.

In support of that petition (and as also alleged in his answer as affirmative defenses) it is contended by the accused: (1) that he was denied equal protection of the laws in that he was not given an opportunity to deny or explain the charges before the complaint was filed, as is the 'normal and usual method of procedure,' but was 'singled out for prosecution'; (2) that he was denied due process in that the complaint 'fails to specify the alleged false statements of accused or give or allege the time and place or materiality of the alleged testimony'; (3) that 'The Statute of Limitations and/or laches has run against the alleged misconduct'; (4) that is appears from the complaint that the accused was acting as an individual and 'was not acting in the capacity of a lawyer' and 'there is no allegation that accused was convicted of a crime'; (5) that the Board of Governors was 'elected by undemocratic process' in violation of the Fourteenth Amendment to the United States Constitution, with the result that these disciplinary proceedings are invalid; and (6) that 'The proceeding herein against accused is quasi-criminal and accused should not have to make an explanation of alternative charges against him and it is wrongful and a violation of due process to require accused to be subjected to the burden of defending himself herein.'

In advance of the trial the accused also filed a peremptory challenge to the original chairman of the trial committee. That motion was granted. However, a subsequent attempt to challenge for cause another member of the trial committee was denied. A motion for leave to submit written questions to members of the trial committee, 'as on voir dire,' was also denied.

A motion was also made to this court to disqualify each member of this court for prejudice and was denied. This court also denied a motion by the accused that the entire file in a previous disciplinary case against him be made a part of the record.

Before discussing the questions raised by these various contentions the facts should be summarized.

Summary of the facts.

1. The original deeds.

On January 13, 1936, a 'trustee's deed' was executed by C. W. Ingram, as trustee in bankruptcy, conveying to H. J. Mirviss certain real property in Multnomah County. That deed was recorded on January 13, 1936. On February 25, 1937, H. J. Mirviss and his wife executed a warranty deed to Rose M. Lenske, the wife of Mr. Lenske, conveying the same property to her. That deed was not recorded, however, until August 11, 1969. It does not appear from the record in these proceedings whether this was after the death of Mr. Mirviss. It does appear, however, that Mr. Mirviss was dead at the time of the second trial in the state court.

2. Testimony and position taken by Lenske in 1963 in federal tax trial.

In 1963 Mr. Lenske was tried in the United States District Court upon charges by the Internal Revenue Service that he had attempted to evade income taxes due for 1955, 1957 and 1958 and had made a false return for 1956. His conviction by the trial court was reversed upon appeal. Lenske v. United States, 383 F.2d 20 (9th Cir. 1967). The case was tried on a 'net worth' theory. This property was one of a large number of properties claimed by the government to be owned by Mr. Lenske.

In that trial Mr. Lenske testified that in 1935 he had made 'an investment for my brother-in-law,' Mr. Mirviss, who lived in California, and that he had 'negotiated a purchase for my brother-in-law' of the land in question; that title to the land was taken 'in the name of the purchaser, my brother-in-law,' and was never changed from that time until 'the present' (1963).

Later in the same trial, on cross-examination by the government attorney, Mr. Lenske testified as follows:

'Q. Now, sir, I believe you testified that back in the 30's you purchased a piece of timber property in Mr. Merviss' name.

'A. I purchased a piece of property for him.

'Q. Did Mr. Merviss give you the money?

'A. Yes.'

The brief filed in the trial court by Mr. Lenske in that case stated as 'the defense position' with reference to the 'Mirviss timber transaction' that:

'The property was purchased in 1935 by Mirviss, and Mirviss owned the property then and has owned it ever since. * * *'

3. Testimony in 1971 in trial of Marx v. Lenske.

a. By deposition.

In the subsequent action against Mr. Lenske in the state circuit court the question arose whether or not this same real property was or was not owned by him. In a deposition taken in advance of trial, Mr. Lenske first objected to answering questions on this subject, claiming that such questions violated his constitutional rights, including his rights under the Fifth Amendment to the United States Constitution. Upon being required by the trial court to answer such questions, he testified that:

'It was bought for my wife in the first place. * * *'

He also testified that the reason why the title was taken in Mirviss' name was that 'It was bought on a competitive bid. I had reason at the time to believe that the bid would more apt to be successful if it was not in my own name.'

He also testified that it was 'the intention' that 'it was his wife's property' when it was originally purchased and that he claimed ownership of the property at all times 'until sometime when my brother-in-law was questioned (by the IRS) regarding--on the question of ownership. * * *' Mr. Lenske testified that at that time 'I took the same position that my brother-in-law did' and that 'he said it was his, and I concurred in that' and that Lenske 'acquiesced in his assertion that he owned the property.'

He also said that he did not tell his brother-in-law that he in fact owned the property and had always owned it, but acquiesced in that statement by his brother-in-law 'in view of the fact that it was unrecorded and still stayed in his name, * * * it might be part of his assets instead of mine or my wife's.'

In response to a question whether that 'was a true fact,' Mr. Lenske testified that:

'It was purchased for my wife and belonged to my wife all the time. It was handled as ours, hers and my property.'

He also testified that the IRS had previously tried to include this property in his 'net worth.' In response to a question as to why he didn't include it in his 'net worth statement' at that time Lenske said that:

'Because my brother-in-law got the idea as long as the property was still recorded in his name and that I had not recorded the deed from him, that he could consistently claim for them that it was his.'

b. On trial.

On trial of this second case, Mr. Lenske admitted that in the tax trial he had testified that title to the property was vested in his brother-in-law. When asked whether that was 'false testimony' he answered:

'Well, let me put it this way: I was incorrect when I said that.'

He went on to say that he had been mistaken 'because it is interpretation of my previous testimony I think' and that 'the theory I adopted at the time was that it was for my tax net worth purposes, tax purposes, it was his, and for any other purposes it was my family's.'

In his brief in that case Mr. Lenske made the following statement:

'The evidence on these parcels is so clear and conclusive that I shall not belabor that issue much. The only thread on which to hang their needle on these parcels is my testimony in my tax prosecution case. That testimony must be looked at in the light of the task I was facing. The Internal Revenue Service used all manner of unlawful procedure to get me. They tapped my phone, they stole my records, etc. etc. I was using every avenue of escape from unlawful prosecution that seemed available to me. My brother-in-law and I both contended that for the purposes of the tax case against me the property, on record in his name, was his. Between us this was solely for that tax purpose and none other. Condemn me if you will for taking that position but place yourself in my position and then see if you would not take advantage of any opening available to avoid the awsome result of a wrongful prosecution against you. * * *'

After considering the testimony and contentions by Mr. Lenske, among other things, the trial judge held that he did in fact own the property, rather than the estate of Mr. Mirviss. The trial judge also testified in the present proceeding that during that trial Mr. Lenske did not give any false testimony. Because, however, of the evidence that Mr. Lenske had given contradicting testimony during the previous federal tax trial, the trial judge referred the matter to the Oregon State...