In Re Gregg , 446 P.2d 123 ( 1968 )

446 P.2d 123 (1968)

In re Complaint As to the Conduct of Warner W. GREGG, Accused.

Supreme Court of Oregon. In Banc.

Argued and Submitted June 3, 1968. Decided October 23, 1968.

Berkeley Lent, Portland, argued the cause and filed briefs for accused.

Herbert H. Anderson and Roland F. Banks, Jr., Portland, filed a brief for Oregon State Bar.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

PER CURIAM.

The accused lawyer was found guilty of the following charges: failure to prosecute a client's cause diligently, resulting in a dismissal of the cause; misappropriation of approximately $2,000 in funds of an organization of which he was treasurer; and dilatory conduct in performing as an attorney for an estate.

The accused does not dispute committing these acts. The accused contends and the trial committee found that the culpable conduct of the accused was caused by alcohol addiction and that this is an important mitigating factor. The Board of Governors of the bar did not consider this circumstance as mitigating the charge of wilfully misappropriating funds. The board, by a vote of 11 to one, recommended permanent disbarment. One board member recommended suspension from practice for five years and until such time as the accused shall be found fit to practice. The trial committee had recommended a suspension for two years, but only if the accused failed to totally abstain from alcohol for five years.

The record contains no instances of any charges of unethical and illegal conduct against the accused other than in this instance. The accused is at present a Lieutenant Commander in the United States Coast Guard Reserve. His superior has retained the accused in his position after he learned of accused's defalcation.

The accused is in his late thirties. He was admitted to the bar in 1958, and was in private practice in Portland with a small firm for five years. In 1963 he joined the legal staff of a state agency where he is now employed in Portland. In 1962 his drinking substantially increased, and beginning in 1963 he had periods of alcoholic amnesia, and, on occasion, was absent from his home and office for several days at a time.

During this time the accused, although not in a legal capacity, was treasurer of a university alumni association fund. Between November 1964 and April 1965 he cashed 13 checks upon this fund and appropriated the money, a total of about $2,000, to his own use, apparently for the purchase of alcohol. After the association asked him for an explanation the accused made full restitution between September and December 1965.

The testimony of the accused was that he did not remember drawing or cashing any of the checks. He stated that when he was first questioned about the account being overdrawn he thought he had not made some deposits. When he was shown the checks he admitted he had defaulted, but said he did not previously know he had cashed them. He admitted an allegation made in the complaint that "the financial statement previously prepared by the Accused indicated that there were several hundred dollars in the bank account."

Early in 1965 the accused consulted a psychiatrist about his drinking problem, but the consultations were unsuccessful in changing his drinking habits. In July 1965 the accused went to a hospital specializing in the treatment of alcohol addiction. He took the prescribed treatment which includes about 10 days of hospitalization followed by periodic "reinforcement" treatments, the last one being in August 1966. He testified he has had nothing to drink since he entered the hospital and there is no evidence indicating the contrary.

The medical director of the hospital, a recognized authority on alcohol addiction, testified that the accused was what he termed a "primary alcoholic," meaning a person who has a normal, well integrated personality but who through years of social drinking has developed an addiction. He stated that such an addict has a tissue demand for alcohol. The witness distinguished such an addict from one who has a deep-seated personality problem and uses alcohol as an escape.

The medical director also testified that there is no permanent cure for such addiction since an addict who has been treated and has abstained for years, can take one drink and become addicted again.

The bar's position is that there was no testimony as to whether the accused was drunk or sober when the checks were cashed, and that without such evidence they could not conclude that the accused was mentally incompetent during all the times he committed the defalcations. As stated, the accused testified he did not remember cashing any of the checks.

We conclude from the evidence that the accused committed the defalcations because of his addiction to alcohol. However, he knew what he was doing when he cashed at least some of the checks and before the association officials questioned him he was aware that he had committed defalcations.

The troublesome question is what form of discipline the public interest requires for a lawyer who admittedly stole $2,000 and whose conduct apparently was caused by alcohol addiction which he has at least for two years overcome.

We conclude the public interest requires that we adhere to our past principle requiring disbarment of attorneys guilty of embezzlement and order the accused disbarred. In re Bengtson, 230 Or. 369, 371, 370 P.2d 239 (1962).

It is true that the accused's conduct was caused by alcohol; however, most embezzlements are caused by pressures of some sort which the embezzler is unable to withstand. The bar and the court owe the public the obligation of keeping out of the practice of law those who cannot withstand these pressures.

Disbarred.