State ex rel. Oregon State Bar v. Lenske

• Decision Date: 03 October 1978
• Citation: 584 P.2d 759,284 Or. 23
• Parties: STATE of Oregon ex rel. the OREGON STATE BAR, Respondent, v. Reuben G. LENSKE, Appellant. SC 25018. *
• Court: Oregon Supreme Court

Page 759

584 P.2d 759

284 Or. 23

STATE of Oregon ex rel. the OREGON STATE BAR, Respondent, v. Reuben G. LENSKE, Appellant.

SC 25018.

Supreme Court of Oregon, In Banc ^*.

Argued and Submitted July 11, 1978.

Decided Oct. 3, 1978.

Reuben G. Lenske, Portland, argued the cause and filed the briefs propria persona.

James A. Luebke, of Luebke & Wallingford, Portland, argued the cause for respondent. On the brief was Colin D. Lamb, of Erwin, Lamb & Erwin, P. C., Portland.

Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON, LENT and LINDE, JJ.

PER CURIAM.

This is an original contempt proceeding filed by the Oregon State Bar charging that the defendant has violated a previous order by the court suspending him from the practice of law ¹ by continuing to practice law during the period of his suspension. The proceeding was initiated by the Bar's motion for an order requiring defendant to appear and show cause why he should not be punished for a contempt of this court, based upon affidavits setting forth certain alleged conduct which the Bar claims to constitute the practice of law.

This court issued such an order to show cause and then appointed Hon. P. K. Hammond, Senior Judge, as a special master to conduct a hearing, make findings of fact and report such findings to this court. A hearing was then held, after which the special master made and reported findings of fact, which include the following:

"That between November, 1975, the exact date unknown and March 17, 1976, Defendant Reuben G. Lenske, on numerous occasions, gave legal advice and legal counsel to Clarine Downs, now Clarine Staatz, regarding a proposed Property Settlement Agreement between Clarine Downs and her then husband; and Defendant did draw, compose and type a proposed Custody and Property Settlement Agreement in the matter of Downs & Downs, before the Circuit Court of Multnomah County, together with other documents regarding said proposed Property Settlement Agreement; and

"(B)etween November, 1975 and March 17, 1976, Defendant Reuben G. Lenske, on numerous occasions, gave legal advice and counsel to the said Clarine Downs regarding proceedings to foreclose an encumbrance on real property in which she had an interest and regarding attempts to sell her real property, and Defendant did draw, compose, and type documents and legal instruments for Clarine Downs (now Clarine Staatz) in regard to said real estate matters and said foreclosure proceedings."

The special master also found the allegations of the affidavits filed in support of the motion for an order to show cause to be true, with some exceptions and reservations.

It is the responsibility of this court to examine and review de novo the evidence offered at the hearing before the special master. The court must determine for itself whether the conduct of the defendant has been such as to require the entry of an order holding the defendant to be in contempt of our previous order suspending him from the practice of law. In doing so, we must bear in mind that, following State ex rel Oregon State Bar v. Lenske, 243 Or. 477, 405 P.2d 510, 407 P.2d 250 (1965), this case is presented as a "criminal contempt proceeding. We are not asked to reconsider that characterization or its implications. ² Although such a proceeding is not a criminal prosecution within the meaning of the constitution, nevertheless, the evidence must be at least "clear" to support a finding of criminal contempt. ³ We now turn to the record in this case.

1. The charge that defendant held himself out to be a lawyer.

One of the serious charges against defendant is that, despite his suspension, he has "knowingly and deliberately represented to the public and members of the legal profession that he is authorized to so practice law, and that said conduct has been repeated and substantially continuous to the present time."

It appears, however, both from the supporting affidavits attached to the motion for an order to show cause and from the evidence at the hearing, that this charge is based upon a single incident. According to the affidavit of Clarine Staatz (formerly Clarine Downs):

" * * * (I)n November or December of 1975 I was represented by a Portland attorney and I desired to change attorneys. I needed a lawyer to represent me on my divorce and also on some real property matters. Upon the recommendation of a friend I took all my files from the other attorney and took them to Reuben Lenske. My friend John Staatz went with me to Reuben Lenske's office and said to him that he knew he was retired but would he take one more case and Reuben Lenske said that for him he would take the cases."

At the hearing, however, Mrs. Staatz' testimony was somewhat equivocal. She testified that she had "a property mess" and needed a good attorney; that she also wanted a divorce; that the property problems and the divorce were "all the same thing"; that she went to see defendant with Mr. Staatz, whom she later married and who was acquainted with defendant; that defendant said that he would "take another case" as a favor to Mr. Staatz; and that she understood for a considerable period of time that he was representing her as her lawyer.

On cross-examination, however, she also testified that when she first went to see Mr. Lenske she was represented in the divorce case by another attorney; that at that time she brought to Mr. Lenske all the papers relating to her problem with the property; that her problem with the property was "what brought me down there to see (defendant) in the first place," and that she did not bring to him the file in the divorce case until "much later," after getting it from the other attorney.

Contrary to the testimony of Mrs. Staatz on direct examination, defendant testified that when Mrs. Staatz first came to his office she was not accompanied by Mr. Staatz and asked only for help in "saving" some property which was the subject of a delinquent contract and two mortgages, among other problems; that he agreed to help "salvage" something for her from the property; that he never represented to her that he was an attorney, and that he had the words "business consultant" on the door of his office, rather than "lawyer." He also testified that she told him that she was involved in a divorce, but that her husband was willing to convey to her his interest in the property. Defendant testified that he subsequently undertook to arrange for a sale of the property.

Defendant called two witnesses to support his version of the initial meeting with Mrs. Staatz. First, the realtor with whom defendant arranged the sale of the property testified that he talked to Mrs. Staatz on the phone. She told him that she would have to talk to her "consultant," and that when the realtor asked her if her "consultant" was a lawyer she said "no." Second, a woman who works in defendant's office testified that she was present in the office at the time of the initial visit of Mrs. Staatz. The woman testified that on that occasion Mrs. Staatz was not accompanied by Mr. Staatz, and that she recalled the defendant telling Mrs. Staatz that he no longer practiced law.

Mr. Staatz was at work near Portland at the time of the hearing and was neither subpoenaed by the Oregon State Bar to corroborate the testimony of Mrs. Staatz, nor was he called as a witness by defendant. Defendant contended that he had a right to assume that Mr. Staatz would be called as a witness by the Oregon State Bar and was not informed to the contrary until the day of the hearing.

It may be that the testimony of Mrs. Staatz on direct examination was true, rather than that of defendant, the realtor, and the woman who works in defendant's office. On this state of the record, however, we hold that the Oregon State Bar failed to prove by what we regard as "clear" evidence that defendant represented to Mrs. Staatz that he was a lawyer, rather than a "business consultant." Indeed, the Oregon State Bar, in its brief and oral argument in this court, makes no contention to the contrary.

2. Defendant's participation in divorce proceedings.

In proceedings filed by Mrs. Staatz (then Mrs. Downs) for a divorce, Mr. Downs was represented by Joseph Ceniceros, now a district judge for Multnomah County, but then a practicing attorney. Mrs. Staatz was represented by a Mr. Bowles. Judge Ceniceros testified that he was informed by Mr. Downs that his wife had sought other counsel, and was now represented by the defendant as her new attorney; that he then called defendant and was told by defendant that he was trying to help Mrs. Staatz salvage what she could from some property on 82d Street, and that Mr. Scudder "was going to represent Mrs. Downs in any court proceedings" and "was going to be her attorney"; that Mr. Scudder then called him on the same day and they "talked about the representation" and that he did not talk with the defendant again, but talked with Mr. Scudder by telephone on three occasions and also appeared in court with Mr. Scudder.

Mr. Scudder, who was also called by the Oregon State Bar as one of its witnesses, testified that he had been admitted to practice law three years earlier, in 1972; that his office was in his home, but that he had "used" defendant's office since 1973; that he asked defendant for advice from time to time (without compensation); that he had no secretary, but that defendant had been "kind enough to type some of my things for me (without compensation);" that he occasionally used a desk in defendant's office, in the same room with defendant's desk. He had a stamp with his name as an attorney and the defendant's office address for use when representing clients that he desired to meet at defendant's office, and also a stamp with his home address. Mr. Scudder also testified that when Mrs. Staatz brought her divorce file to that office she wanted a new attorney; that he agreed to represent her and undertook to do so; that on December 17, 1975, he was substituted as her...