Nash, Application of

• Decision Date: 05 August 1993
• Citation: 317 Or. 354,855 P.2d 1112
• Parties: In re The Matter of the Application of Donald D. NASH for Reinstatement as an Active Member of the Oregon State Bar. SC S30865.
• Court: Oregon Supreme Court

Page 1112

855 P.2d 1112

317 Or. 354

In re The Matter of the Application of Donald D. NASH for

Reinstatement as an Active Member of the Oregon State Bar.

SC S30865.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 5, 1993.

Decided Aug. 5, 1993.

Phillip M. Margolin, of Margolin & Margolin, Portland, argued the cause for Donald D. Nash. With him on the brief was Robert K. Udziela, of Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Mary Anne Cooper, Asst. Disciplinary Counsel, Lake Oswego, argued the cause for the Oregon State Bar. With her on the brief was Michael J. Gentry, Portland.

PER CURIAM.

Donald D. Nash (the applicant) was admitted to the Oregon State Bar (Bar) in 1972. He was disbarred in 1985, on his conviction of sodomy in the first degree, a Class A felony. ORS 163.405. In re Nash, 299 Or. 310, 702 P.2d 399 (1985).

In 1990, the applicant applied for reinstatement as an active member of the Oregon State Bar. The Board of Governors denied his application.

In 1991, the applicant filed a petition to review the Board of Governors' adverse recommendation. Bar Rule of Procedure (BR) 8.8. ¹ This court referred the matter to the Disciplinary Board to inquire into the applicant's moral character and general fitness to practice law. The Bar filed a statement of objections to the application for reinstatement.

A Disciplinary Board trial panel held a hearing in 1991. The hearing was continued "so that the applicant could obtain a current, thorough evaluation from a psychologist, and the Bar could have its experts analyze the test results and report." Thereafter, the trial panel denied reinstatement. The applicant now seeks reversal of the trial panel's decision. This court reviews de novo. BR 10.6. ² For the reasons that follow, we deny reinstatement.

The acts of sodomy resulting in the applicant's disbarment took place between 1982 and 1984. The victim eventually reported the applicant's misconduct to her mother. The applicant pleaded guilty and was placed on five years' probation. In In re Nash, supra, 299 Or. at 312, 702 P.2d 399, this court stated:

"The acts of sodomy involved a six-year-old child who was the daughter of a former client of the accused. We perceive no purpose to place upon the public record either the details of the sordid acts committed by the accused or a description of the prolonged and deep-rooted psychological problems from which the accused suffers."

The following rules govern the reinstatement procedure:

BR 8.1(b) provides in part:

"Each applicant [for reinstatement] 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."

BR 8.12 provides:

"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). BR 8.13 provides:

"While an applicant for reinstatement has the ultimate burden of proof to establish good moral character and general fitness to practice law, the Bar shall initially have the burden of producing evidence in support of its position that the applicant should not be readmitted to the practice of law."

The only evidence presented to the trial panel came from four mental health professional, who either had treated the applicant or had reviewed his history, and from his former probation officer. The applicant did not testify.

Evidence presented to the trial panel at the first hearing in 1991 showed that, after his arrest in 1984, the applicant consulted Dr. Weinstein, a psychiatrist, who treated him for about a year and a half for "depression." Weinstein testified that he believed that the applicant's sex crimes were a secondary manifestation of depression. Weinstein also testified that, because he did not find that the applicant was aroused during his sex acts with the child, he did not believe that the applicant suffered from pedophilia. Weinstein conceded, however, that he had not treated many pedophiles and that, in fact, he does not believe that psychotherapy is particularly helpful to pedophiles. He also conceded that, although he knew that the applicant was being treated concurrently by other mental health professionals, he had not compared notes with any other persons to determine whether any of them shared his opinion that the applicant suffered only from "depression," rather than from a sexual disorder. In December 1984, after he had been treating the applicant for less than six months, Weinstein wrote a letter to the court stating that he saw no reason why the applicant should not be permitted to resume the practice of law.

From mid-1984 to mid-1985, the applicant also received treatment from Mr. Jensen, a therapist. At the hearing, Jensen testified that, during the course of treatment, the applicant reduced his sexual responses to stimuli involving female children from high to low.

Dr. McGovern, a clinical psychologist, evaluated the applicant in 1984 and made treatment recommendations to the sentencing court.

The applicant's former probation officer testified that the applicant had been a very compliant probationer and that she had recommended early termination of his criminal probation.

At the close of the evidence, members of the trial panel expressed reservations about making a decision based on opinions about the applicant's mental health as of 1985. Accordingly, the hearing was recessed to allow the applicant to undergo a current psychological assessment.

In 1992, the trial panel reconvened and received new testimony from McGovern, who had reevaluated the applicant. The reevaluation included psychological, physiological, and polygraph examinations. McGovern opined that the applicant presently does not have a propensity to engage in deviant behavior. He recommended, however, that as a "safety valve" the applicant should intermittently meet with a psychiatrist to ensure that he is coping effectively with his depression.

Mr. Wolfe, another mental health professional, also reviewed the new data at the request of the Bar and gave an opinion. He cautioned that, if the applicant were reinstated to the Bar, certain restrictions on his practice would be appropriate in order to prevent the applicant from having contact with, or any power or authority over, children.

After reviewing the current data, Jensen opined that he had concerns about certain answers given by the applicant indicating that the applicant believed that his victim usually enjoyed the sex act and that he had not engaged in "grooming" to set up his victim. ³ Jensen also expressed concerns that the applicant had no relapse or prevention plan or new coping strategies should he experience difficulties in the future, that the applicant is currently married to someone 20 years his junior who is unlikely to be at his maturity level, and that the applicant's current level of sexual activity indicates that he still is overemphasizing sex. Jensen also felt that, if the applicant is reinstated, restrictions should be imposed on the applicant's practice, including: that his practice not involve female juveniles; that there be periodic checkups; and that his wife be involved in his ongoing rehabilitation.

Each of the mental health professionals concluded that the applicant had made significant progress in coping with his problems. None of them, however, had had any extensive contact with the applicant for over five years.

The trial panel found that the applicant has the required general fitness to practice law. Further, the panel concluded that the applicant meets the requirement of good moral character "at the present time." Finally, the panel concluded that the applicant had not established by clear and convincing evidence that his present good moral character will continue indefinitely into the future. ⁴ The trial panel concluded that the applicant's reinstatement would be detrimental to both the administration of justice and the public interest. The panel unanimously denied reinstatement.

Before this court, the applicant contends that the trial panel erred in imposing a requirement that he prove that his present good moral character will continue in the future. He argues that requiring an applicant to demonstrate that present good moral character will continue in the future violates the Due Process Clause of the Constitution of the United States. ⁵ The Bar responds that the applicant has not proved by clear and convincing evidence that he now has the requisite good moral character and that the trial panel erred in determining that the applicant presently has good moral character. The Bar stresses that, not only did the applicant not testify as to why this court should grant his application for reinstatement, but also that no person who presently lives or works with the applicant was called as a witness to provide the trial panel with a current appraisal of his moral character. ⁶ The Bar asks this court to deny reinstatement.

The dispositive issue in this case is whether the applicant has established good moral character by clear and convincing evidence. ⁷ This court reviews all reinstatement matters de novo on the record and may adopt, modify, or reject the trial panel's decision. BR 10.2; BR 10.6.

Although reinstatement after a suspension is a relatively common occurrence, reinstatement after disbarment is...