Oregon Supreme Court Reports
IN RE ZIELINSKI, 341 Or. 559 (2006) 146 P.3d 323 In the
Matter of the Application for Admission to Practice Law of:
STEVEN ROBERT ZIELINSKI, Applicant. (SC S52768). Oregon
Supreme Court. Submitted on the record March 16, 2006.
October 26, 2006.
Petition for Review of the Recommendation of the Board of
Bar Examiners.
Steven Robert Zielinski, in propria persona, filed the
briefs.
Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, filed
the brief for the Oregon State Bar.
Before De Muniz, Chief Justice, and Carson, Gillette,
Durham, Balmer and Kistler, Justices.[fn*]
[fn*] Riggs, J., retired September 30, 2006, and did not
participate in the decision of this case. Walters, J., did
not participate in the consideration or decision of this
case.
PER CURIAM
Admission denied. Page 560
[EDITORS’ NOTE: THIS PAGE IS BLANK.] Page 561
PER CURIAM
Steven Robert Zielinski (applicant) has applied for
admission to the practice of law in Oregon. The primary
issue presented is whether the record contains clear and
convincing evidence that applicant has the requisite
character and fitness to practice law.
We review the record de novo. BR 10.6. An applicant for
admission to the practice of law has the burden of proving
by clear and convincing evidence that he or she is of good
moral character and is fit to practice law. See In re
Rowell, 305 Or 584, 588 n 2, 754 P2d 905 (1988) (so
holding, citing former BR 7.5); Rule for Admission (RFA)
9.45(6) (in character review proceeding, applicant must
establish by clear and convincing evidence the requisite
character and fitness to practice law). On review, we
determine that the record before us lacks clear and
convincing evidence of applicant’s good character and
fitness to practice law, and, therefore, we deny his
application for admission.
ORS 9.220 codifies the standards for admission to the
practice of law in Oregon:
“An applicant for admission as attorney must apply to the
Supreme Court and show that the applicant:
“(1) Is at least 18 years old, which proof may be made by
the applicant’s affidavit.
“(2)(a) Is a person of good moral character and fit to
practice law.
“(b) For purposes of this section and ORS 9.025, 9.070,
9.110, 9.210, 9.250 and 9.527, the lack of `good moral
character’ may be established by reference to acts or
conduct that reflect moral turpitude or to acts or conduct
which would cause a reasonable person to have substantial
doubts about the individual’s honesty, fairness and
respect for the rights of others and for the laws of the
state and the nation. The conduct or acts in question
should be rationally connected to the applicant’s fitness
to practice law.
“(3) Has the requisite learning and ability, which must
be shown by the examination of the applicant, by the
judges or under their direction * * *.” Page 562 RFA
1.05(1) amplifies on the concept of “fitness to practice
law”:
“As used in these Rules for Admission of Attorneys,
unless the context requires otherwise:
“(1) `Fit to practice law’ or `fitness’ means an
applicant demonstrates a level of conduct, mental health,
judgment, and diligence that will result in adequate
representation of the best interests of clients, including
participation in the legal process according to the
Disciplinary Rules of the Oregon Code of Professional
Responsibility.”
The court has delegated to the Board of Bar Examiners the
responsibility in the first instance to receive applications
for admission, to administer appropriate testing, to
investigate each applicant, and to make recommendations
regarding admission. RFA 2.10.
Applicant submitted his application for admission to the
practice of law in Oregon in October 2004. He is over the
age of 18 years, graduated from an accredited law school,
and passed the February 2005 Oregon bar examination.
However, the application, and the Board of Bar Examiner’s
investigation of the applicant, led the board to question
whether applicant has the requisite good moral character
and fitness to practice law. By letter dated September 20,
2005, the board recommended that the court deny the
application because:
“1. He has not established by clear and convincing
evidence that he has the requisite character and fitness
to practice law; and
“2. Based on the information available to the Board, the
Board is unable to determine whether he possesses the good
moral character and fitness to practice law as required by
ORS 9.220(2)(a).”
(Footnotes omitted.) In that letter, the board identified a
number of incidents in which applicant’s actions caused the
board concern. The letter was accompanied by a copy of the
application and what appear to be materials accumulated by
the board in the course of its investigation, including the
transcript of an interview of applicant by a “small
board.”[fn1] Page 563
The small board questioned applicant regarding incidents
that the Board had identified. Those included an incident
that occurred at the University of Illinois College of Law
in which applicant accused a law student, with whom he
formerly had had a friendship, of cheating; a defamation
action that applicant had filed against an assistant dean
at the University of Illinois; an incident at the Pasco
Airport in the State of Washington that had culminated in
applicant’s arrest for disorderly conduct; and applicant’s
contention that an Oregon lawyer and a municipal court
judge had engaged in a “smear” campaign when applicant ran
for Hermiston Municipal Court judge. The small board also
interviewed applicant about an incident that occurred in
the Umatilla County Circuit Court that culminated in
applicant filing a complaint with the Oregon State Bar
against the deputy district attorney prosecuting a criminal
case and a complaint against the trial judge with the
Commission on Judicial Fitness and Disability. We discuss
those incidents in greater detail later in this opinion.
In the course of the interview, the small board asked
applicant to submit various documents and papers relating
to those matters. Applicant did so, and the record that the
Board submitted with its letter containing its adverse
recommendation includes those materials.
Thereafter, the small board determined that a reasonable
possibility existed that applicant had a psychological
condition affecting his fitness to practice law and
recommended that applicant participate in a psychological
evaluation. The full board approved that recommendation
and Page 564 arranged for a psychological evaluation, at
applicant’s expense, with a particular mental health
professional. Applicant declined to participate in the
evaluation, citing his inability to pay the anticipated
cost of the examination.
At that point, RFA 9.10(1)(a) authorized the board to
convene a character review proceeding before a hearing
panel. Respecting a character review proceeding, RFA 9.10
provides:
“(1) Initiation. A hearing panel shall commence a
proceeding, to be known as a character review proceeding:
“(a) Upon Board of Bar Examiners’ referral of a matter to
a hearing panel, or;
“(b) In any matter where the Oregon Supreme Court does
not accept the Board of Bar Examiners’ recommendation to
admit an applicant to practice, if the Board’s
recommendation to admit was made without a hearing panel
having conducted a character review proceeding. See Rule
9.60(7).
“(2) Purpose. The hearing panel, in its character review
proceeding, shall inquire into whether an applicant
possesses the requisite character and fitness to practice
law in Oregon.”
The board’s Rules for Admission prescribe detailed
procedures for the conduct of a character review
proceeding.[fn2] In this case, however, none of those
events occurred, because, as Page 565 noted, the board did
not initiate a character review proceeding. Thus, when the
board submitted its original recommendation to the court,
the “record” consisted of the application, the transcript
of the small board interview, documents that applicant had
submitted as requested during that interview, and such
other documents arising from the board’s investigation and
correspondence between the board and applicant as the board
elected to provide.
In previous cases, when the board has made an adverse
recommendation for an applicant’s admission, a character
review hearing preceded the board’s recommendation, and the
applicant had notice of the grounds on which the board
questioned the applicant’s character and fitness and of the
opportunity to create a record by an adversarial process.
However, here, as the board explained in its letter of
September 20, 2005, to the court:
“The Board did not convene a panel pursuant to [RFA] 9.05
because without the information requested of the
applicant, i.e., the evaluation of a trained mental health
professional approved by the Board, a hearing conducted
pursuant to that rule would have been unproductive since
the members of the Board could not reach a conclusion
without the assistance of such an evaluation. See Rule
6.05(3) (`An applicant may be denied admission for
refusing to provide the Board with information material to
the Board’s inquiry regarding the applicant’s good moral
character and fitness to practice law.’)”
On November 22, 2005, the applicant filed a petition for
review of the board’s recommendation. RFA 9.60 authorizes
an applicant to petition this court for review of a board
“decision.” Although, as noted, the board’s “decision”
often follows the occurrence of a character review hearing,
the term “decision” also embraces any final determination
by the board that rejects an application for admission,
including those instances, such as in this case, in which
no character review hearing occurs.
We turn to a procedural question concerning applicant’s
petition for review. A quantity of written materials
accompanied the Board’s adverse recommendation and
applicant’s petition for review. Applicant’s petition for
review Page 566 makes various factual assertions without
citations to any record, and, therefore, we cannot readily
determine whether the record before us, such as it is,
supports those assertions. Further, applicant included with
his petition for review numerous letters from friends and
colleagues of applicant that they wrote after the board had
made its adverse recommendation to the court. Obviously,
the board has not considered those materials.
The materials accompanying the board’s decision and
applicant’s petition highlight the evidentiary conundrum
that we face, in part because a character review hearing
did not precede the board’s decision in this case. A
character review hearing affords both parties an
opportunity to engage in discovery, to disclose to the
other parties documents on which a party intends to rely,
and to offer and object to evidence, and otherwise provides
an orderly means of making a reliable record. See RFA 9.35
to 9.45 (describing procedure). The process followed here
did not provide that opportunity. Nevertheless, subject to
one exception that we discuss below, neither applicant nor
the board has objected to a full consideration by the court
of the various materials submitted by the board and
applicant. Therefore, we have considered those materials in
addressing the petition for review.
The one exception relates to a report of a psychological
evaluation of applicant. In his petition for review of the
board’s adverse recommendation, applicant questioned the
board’s authority to request a psychological evaluation at
all. He also questioned the propriety of the conditions
that the board had imposed, including that the mental
health professional administer personality tests, that the
psychologist report his raw scores to either the board or
to its psychologist member,[fn3] and that the mental health
professional determine whether the applicant suffers from
delusional paranoia.
On December 6, 2005, this court determined by order that
the board had the authority to request a psychological
evaluation, but that the applicant should have the
opportunity to propose different terms and conditions for
Page 567 accomplishing the evaluation. That order further
provided that the court would postpone a decision on the
merits of the application for six weeks to give the board
and applicant an opportunity to arrive at mutually
acceptable terms for an evaluation, to have the evaluation
take place and a report prepared, and to allow the board to
consider the report and make any further recommendation to
the court that it wished to make.
The parties attempted to negotiate conditions for a
psychological evaluation, but failed to come to full
agreement. Nevertheless, applicant participated in an
evaluation by a mental health professional mutually
acceptable to applicant and the Board. The psychologist
prepared a report. However, one of the points on which the
parties were unable to come to agreement was this:
applicant contended that a psychologist-patient privilege
attended any evaluation, and that the board could not evade
the privilege by requiring the psychologist to disclose
the evaluation to the board. Applicant, in turn,
voluntarily submitted the report to the board and this
court, subject to applicant’s insistence that only board
members, the members of this court, and one of this court’s
staff lawyers could consider the report.
RFA 2.15 provides:
“Unless expressly authorized by the Supreme Court, the
Board of Bar Examiners shall not disclose any of its
records, work product or proceedings in carrying out these
activities for the Supreme Court except the Board may
release an applicant’s admissions file to: (1) a special
investigator appointed under Rules 9.15 to 9.20; (2) the
Oregon State Bar’s Disciplinary Counsel when an applicant
seeks Supreme Court review of an adverse admissions
recommendation; (3) Counsel appointed by the Board when an
applicant initiates civil proceedings against the Board in
connection with the applicant’s application; or (4)
admissions authorities in other jurisdictions which
guarantee the confidentiality of admissions materials to
the same extent as required under Oregon law.”
Applicant declined to consent to disclosure of the
psychological report to the persons identified in RFA 2.15.
Therefore, the board declined to consider the report or to
modify its recommended disposition of the application.
Page 568
As noted, applicant has submitted a copy of the report to
the court in a sealed envelope and has limited its
disclosure essentially to the members of the court. If this
court considered the psychological report that applicant
has submitted in this case and included information from
that report in the court’s opinion — as we would, if
we deemed the discussion of that information helpful in
explaining our decision — we would violate the
limitations that the applicant has attempted to place on
disclosure of the report.
In our view, the impracticality of applicant’s limitations
on our consideration of the report is reason enough to
reject the report. However, in imposing them, applicant
demonstrates an even more fundamental misunderstanding of
the legal context that pertains here: He has no authority
to impose conditions or limitations on this court’s
consideration and use of evidence that he submits to
demonstrate his character and fitness to practice law.
Because the court has not authorized or accepted those
limitations, we have declined to consider the report.
We turn, then, to examining applicant’s claims in light of
the record that we have before us. Applicant is a 1982
graduate of the Honors Program in Medical Education at
Northwestern University Medical School. He has been
licensed as a physician and surgeon in Illinois since 1984
and in Oregon since 1985. Applicant became board-certified
in internal medicine in 1996. In addition to practicing
medicine for a number of years, including, apparently,
emergency room work, applicant briefly served as Vice-Dean
for Academic Affairs at the College of Medical Sciences in
Katmandu, Nepal.
Applicant also graduated magna cum laude from the
University of Illinois College of Law in 1991 and was
admitted to the practice of law in Illinois in May 1993,
and remains in good standing on inactive status as a member
of the Illinois State Bar Association. His admission there
was not without its difficulties. The dean of the
University of Illinois College of Law declined to certify
that applicant was a person of good moral character. That,
together with an allegation that applicant had stalked a
law student with whom he formerly had had a personal
relationship, his allegation that the Page 569 same law
student had cheated in a trial advocacy class, and his
defamation action against an assistant dean at the
University of Illinois, resulted in the Illinois Board of
Admissions to the Bar initiating what appears to be the
equivalent under Oregon law of a character review hearing.
That hearing resulted in a unanimous decision affirmatively
to recommend applicant for admission to the bar, and, in
due course, applicant was admitted to the practice of law
in Illinois.
We are not bound by the decision of the State of Illinois
regarding whether the incidents that occurred there are
grounds for denying applicant admission to the practice of
law in Oregon. Nevertheless, the allegations regarding
applicant’s complaint that a law student had cheated and
the nature of his relationship with that student, although
potentially serious, do not detain us long, in part because
the record of those incidents is not well-developed.[fn4]
We shall not consider those allegations in our
determination in this case.
As noted, ORS 9.220(2) provides, in part, that
“the lack of `good moral character’ may be established by
reference to acts or conduct that reflect moral turpitude
or to acts or conduct which would cause a reasonable
person to have substantial doubts about the individual’s
honesty, fairness and respect for the rights of others and
for the laws of the state and the nation.”
That statute also provides that “[t]he conduct or acts in
question should be rationally connected to the applicant’s
fitness to practice law.” RFA 1.05(1) also requires that we
focus on
“conduct, mental health, judgment, and diligence that
will result in adequate representation of the best
interests of clients, including participation in the legal
process * * *.”
The board’s letter to the court expresses concern about
several matters, including a defamation action that
applicant filed in federal court in Illinois in 1992 and an
event that the parties refer to as the Pasco Airport
matter. The board provided the following summaries of those
matters: Page 570
“1. Dr. Zielinski filed a defamation lawsuit in Illinois
federal court in 1992 alleging that one of the named
defendants had made quoted statements in a public meeting.
Dr. Zielinski withdrew the lawsuit after a tape recording
of the meeting conclusively established that the accused
defendant had not made the statements. When asked about
this during the Small Board Interview, Dr. Zielinski
stated that the quoted language in the complaint was based
on the recollections of 3-5 persons who had been in
attendance at the meeting. However, when confronted by the
Small Board with a contemporaneous statement to a reporter
at the time he withdrew the lawsuit that the quoted
language was based on the recollections of ten persons,
Dr. Zielinski stated:
“`It probably got to that many, but I knew of about three
to five. I mean there were a lot of people there and I
didn’t get the names of all the ones who initially came up
to me. You had to go with what you had at the time that
you put the suit together.’
“(Exh. 10, p. 17) (emphasis in original).
“2. Dr. Zielinski was arrested at the Pasco Airport in
October 2001. When asked by the Small Board to explain the
circumstances that lead to his arrest, Dr. Zielinski
stated that one of the security officers had held up a sum
of cash removed from his checked luggage and asked Dr.
Zielinski if he wished to take it in his carry-on rather
than leave it in his checked luggage. Dr. Zielinski
further explained:
“`When she [the security guard] held that up in the air,
she basically gave a signal to every human being that
here’s a schmuck with a lot of money. Go get him. And I
had a choice and I knew it instantly. If I take that money
and I put it in my carry-on bag, somebody will come after
me and the carry-on bag. If I take that money and it goes
back into the suitcase, wherever that suitcase goes,
there’s going to be a race from baggage claim to get to
that suitcase because it’s instant free money. And here is
a person who is supposed to be devoted to safety and
security and she basically made me a target and I wasn’t
happy.’ Page 571
“(Exh. 10, pg. 19) Dr. Zielinski was arrested and
detained by the National Guard after further interaction
with airport officials. (Exh. 7, pp. 4-5)[.]”
Two concerns arise from applicant’s actions relating to
the defamation action. First, applicant made inconsistent
statements about the number of witnesses who reported the
allegedly defamatory statement to him. Second, the tape
recording of the meeting conclusively confirmed that none
of the witnesses on which applicant purportedly had relied
had reported the facts accurately. As a consequence,
applicant’s defamation action was without a basis in fact.
The problem that the Pasco Airport matter raises is not
that applicant disapproved of the manner in which the
airport security guard had dealt with his property. Rather,
it appears that, without any basis for doing so, applicant
attributed to the security guard the intent to invite other
persons to rob him of his money (i.e., “Go get him.”). That
is not, in our view, an ordinary (or even reasonable)
reaction. Moreover, applicant allowed his anger toward the
security guard and other airport officials to escalate to
the point that the National Guard representatives present
at the airport had to arrest and detain him.
Also of concern to us is applicant’s conduct surrounding
an incident in the Umatilla County Circuit Court that
occurred on September 15, 2003. The state had charged the
wife of a physician, Dr. Meharry, with whom the applicant
had worked in Hermiston, with certain criminal offenses.
Applicant accompanied Dr. Meharry and his wife to a
hearing. At one point in the course of that hearing, the
lawyers for both the defendant and the state left the
courtroom to meet with the trial judge in chambers. During
that time, applicant was conversing loudly enough with Dr.
Meharry about the case that a police officer serving as a
security officer in the courtroom could hear what applicant
was saying. According to the security officer, applicant
said, “[T]he only good cop is one with a bullet in his
head.”[fn5] The security officer cautioned Page 572 the
applicant not to speak about the case because there were
witnesses in the courtroom. When applicant asked where the
witnesses were, the officer pointed to the woman seated
immediately in front of applicant, that witness being Huxel,
a female detective. Applicant responded, “Oh, that’s what
that is!”
Applicant continued to talk loudly enough that a court
clerk entered the judge’s chambers and informed those
present about the disruption in the courtroom. One of the
defendant’s lawyers said that he would take care of the
problem. That lawyer escorted applicant outside the
courtroom, they talked briefly, and both returned to the
courtroom.
A second police officer, Deputy Drago, was in the
courtroom; applicant considered Drago to be his
friend.[fn6] Drago attempted to caution applicant about
talking in the courtroom. At least one observer
characterized applicant as standing up as if to take off
his coat and engage in a fight with Drago before going
outside the courtroom to talk with him. Eventually, both
returned to the courtroom. When the judge and the lawyers
returned to the courtroom and the court went back on the
record, the trial judge announced that he was recusing
himself from the case.
The following day, the deputy district attorney handling
the case, Ladd, filed a motion to transfer the case from
Hermiston to Pendleton on four grounds: (1) the case
involved 40 witnesses, and the Hermiston courtroom
facilities were too small to accommodate witnesses waiting
to testify; (2) security in Hermiston was less effective
than in Pendleton; (3) the trial judge’s recusal presented
difficulties for the state, because the state thought that
the defendant’s release should be revoked immediately, in
part because she allegedly had been tampering with
witnesses; and (4) defense counsel planned on filing a
large number of motions that otherwise would require a
visiting judge to travel from Pendleton to Hermiston for
hearings. In support of the part of her motion referring to
court security, Ladd stated, Page 573
“This case has potential for physical injury; during the
judge’s conference in chambers on 09/15/03, the deputies
had to remove one Steven Zielinski, who told * * * Huxel,
a witness for the state, that police officers ought to
have a bullet through the head.”
Ladd also wrote in the motion, “In the most recent hearing,
a security risk arose when one witness for the defense made
a threatening comment to a police officer witness.”
Applicant disputed those statements on the grounds that no
deputy removed him from the courtroom and he had not
directed his statement about bullets in the heads of police
officers to, or otherwise threatened, Detective Huxel or
any law enforcement personnel. Ladd, however, rebuffed
applicant’s attempt to get her to change her statements.
Applicant also attempted to contact the trial judge, but
the trial judge declined to talk to him, because the matter
involved the case from which he had recused himself.
Applicant then filed complaints with the Oregon State Bar
against Ladd and against the trial judge with the
Commission on Judicial Fitness and Disability (the
commission).
The record before us regarding applicant’s complaint
against the trial judge is limited. The commission declined
to provide a copy of the complaint, citing its
confidentiality policy. Applicant also was unable to
furnish a copy of his complaint, because he had not
retained a paper copy and the computer on which he had
prepared the complaint suffered damage that resulted in an
inability to retrieve the document. In addition to not
having a copy of the complaint, applicant has not
articulated the basis for his complaint against the trial
judge. By applicant’s own statement, the trial judge was
not in the courtroom when most of the incident took place.
In his complaint to the Bar regarding the conduct of the
deputy district attorney, applicant stated that the trial
judge had returned to the courtroom during the time when
applicant had gone outside the courtroom escorted first by
the defendant’s lawyer or later by one of the courtroom
security officers or, perhaps, both. However, the remainder
of the record indicates that the trial judge had not
returned to the courtroom by that time and, therefore,
could not have had Page 574 any personal knowledge of
events that occurred in the courtroom.
Even if the trial judge had had personal knowledge of some
of the events that, collectively, made up this incident, it
is not readily apparent to us how the trial judge could
have violated the Code of Judicial Conduct by recusing
himself from the case and not responding to the applicant’s
request to talk to the judge about the incident. In his
complaint to the Bar regarding the deputy district
attorney, applicant wrote the following in regard to the
trial judge’s role in the incident:
“I have been accused of stating that `police officers
ought to have a bullet through the head.’ * * * Further,
it is claimed that I had to be forcibly removed from the
courtroom because of my statements and that I created a
`dangerous’ courtroom situation. * * * [B]oth Judge
Wallace and [the] prosecuting DA * * * are aware of the
totally and completely false nature of these claims, since
they were PRESENT IN THE COURTROOM WHEN I WAS SUPPOSEDLY
REMOVED!
“* * * * *
“I attempted to deal with this matter through Judge
Wallace, who had recused himself from the relevant case
(State vs. Kathy Meharry) on the day of this alleged
incident. Judge Wallace, through his secretary, Nancy,
encouraged me to stay by my phone and await a call from
the Judge. I made several follow-up contacts by phone and
received additional requests to remain by my phone. That
call never came. ONE WEEK LATER, Nancy contacted me to
inform me that Judge Wallace could not talk to me if the
conversation involved the Meharry matter in any way. One
wonders if the Judge has similar difficulty deciding
whether to go to the bathroom or if he just pees on
himself.”
(Capitalization in original.) In that same complaint,
applicant states,
“Not only are the alleged claims false, they have an evil
and pernicious nature that invites hostility, harassment
and reprisals. I have received threats against my person
and my livelihood as a result of these false accusations
and the threats have forced me to increase my personal
security and that of my friends and loved ones. I have
been forced to seek Page 575 a concealed weapons permit
and to only travel in the community with a weapon near at
hand * * *.
“Since many of the threats have come from members of law
enforcement — or those claiming to be part of law
enforcement, I now regard all police and law enforcement
officers with suspicion and any approach by them as a
potential to attack me or do me harm * * *.
* * * * *
“I fear that this entire situation cannot help but end
badly, likely with a violent showdown. Government
authorities have shown an unwillingness to address this
matter and likely will not do so until someone gets
killed. * * * I also fear that the inevitable
confrontation will cause me to have to choose between my
own life and that of an overzealous and ill-informed
member of law enforcement.”
In response to a letter dated May 13, 2004, from Bar
Disciplinary Counsel, applicant stated,
“I don’t doubt there are security issues in the Hermiston
Court. But I am not one of them. The court security
deputies might qualify as dangerous, however. Who responds
to what is allegedly a serious, open threat with those
chilling words `Don’t talk about the case!’ Wow, I’m
scared! Are they allowed to have bullets in their guns?
Who put the bullets in for them? Can they shoot straight?”
In a letter dated July 9, 2004, in which applicant
requested that the State Professional Responsibility Board
review the Bar’s dismissal of applicant’s complaint against
the deputy district attorney, applicant wrote,
“I also want to make it clear that I am proud, yes, PROUD
of my `offensive’ statement in the courtroom that day. I
stand fully behind my comments. In fact, I would say that
they also apply, wholeheartedly, to Ms. Ladd, Ms.
Cooper,[fn7] Judge Wallace and the rest of the Umatilla
County Justice System. You may act accordingly. I would
also point out, just this last weekend, we buried a young
man who died violently as a result of lies and deceptive
statements put out by government agents. The problem will
not go away. I have Page 576 warned repeatedly about the
escalation of this matter into violence. I can do no more.
I have nothing to lose.”
Put bluntly, it strains credulity to accept applicant’s
portrayal of Umatilla County as simmering with the kind of
violence that applicant describes or his assertion that his
life is as threatened as he claims.[fn8] To the extent
that applicant is unpopular with law enforcement personnel
in that community, he overlooks that, by his own admission,
he uttered in a courtroom in a voice loud enough to be
heard by others, including a police detective witness,
words to the effect that he would not treat a police
officer who had been shot in the head. To the extent that
applicant’s statement was repeated in the community, that
fact had more to do with applicant’s utterance of the
statement in a loud voice in a public setting in the
presence of police officers than with Ladd’s possibly
inaccurate summary and characterization of the statement in
her motion.
As the record before us reflects, applicant has made other
statements that reflect positively on him. Applicant also
has been involved in other litigation, both as a medical
expert advising lawyers regarding medical matters, and in
connection with a business in which applicant sold
timekeeping software. His conduct in those matters causes
us no concern. Finally, applicant has supported his
petition for review with letters of recommendation from a
number of respected persons.
Nevertheless, applicant’s conduct, especially during and
following the Umatilla County Circuit Court incident, gives
us great cause for concern. That conduct occurred recently
and reflects a disrespect for the rights and personal
safety of others. From the record as applicant has chosen
to limit it, it appears that applicant loses perspective
when he engages with others in various positions of
authority. While it is true that the public expects lawyers
to assert their rights and those of their clients in a
variety of legal settings, this court, the Bar, and the
public also expect lawyers to conduct themselves in a
rational, civil, and professional manner, Page 577
especially in the presence of witnesses in a courtroom.
Applicant’s conduct in the Umatilla County Circuit Court
matter and the ensuing complaints to the Oregon State Bar
and the Commission on Judicial Fitness and Disability
display the kind of lack of perspective and judgment that
reflect poorly on applicant’s character and fitness to
practice law. Applicant’s conduct in those matters was not
a one-time slip-of-the-tongue. Rather, his conduct reflects
a pattern of behavior toward public officials that
incorporates irrational insults[fn9] and accusations of
misconduct with little or no evidentiary support. Moreover,
applicant has used threats of violence or harm to
intimidate others and then bragged about his threats.
Viewing applicant’s conduct in its entirety, we conclude
that, to paraphrase ORS 9.220(2)(b), applicant’s conduct
“would cause a reasonable person to have substantial doubts
about [applicant’s] honesty, fairness and respect for the
rights of others and for the laws of the state and the
nation.” The conduct of applicant discussed above occurred
in several settings, including a courtroom, in which a
reasonable person would expect a lawyer to conduct himself
in a manner that reflects respect for the rights of others
and for the responsibility and authority of public
officials and employees attempting to execute their duties.
Those circumstances confirm that applicant’s conduct is
rationally connected, as ORS 9.220(2)(b) requires, to his
fitness to practice law. We conclude, therefore, that
applicant has failed to show that he “[i]s a person of good
moral character and fit to practice law.” ORS 9.220(2)(a).
In re Covington, 334 Or 376, 382, 50 P3d 233 (2002),
counsels us that,
“[a]ny significant doubt [about an applicant’s character
and fitness] should be resolved in favor of protecting the
public by denying admission.” Page 578
The record in this case leaves significant doubt in our
minds about applicant’s character and fitness to practice
law. Therefore, we follow Covington and deny the
application.
Admission denied.
[fn1] The board’s Policy and Procedures Re: Character and
Fitness authorize appointment of a small board, which is a
subgroup of the full board consisting of two lawyer members
and one public member of the Board. Paragraph 22 of the
board’s policy statement provides:
“If the small Board concludes, based on the applicant’s
record or statements or information obtained from third
persons, that the applicant has a recent pattern of
substance abuse or psychological condition affecting
fitness to practice law, the small Board may recommend
that the Board require the applicant, at his or her own
expense, to submit to an examination by a medical or
psychological specialist approved by the Board. If the
Board approves this recommendation and requires such an
examination, the small Board may, depending on the results
of the examination, recommend that:
“(a) The applicant be unconditionally admitted;
“(b) The applicant be conditionally admitted, as
described in paragraphs 30 and 31; or
“(c) A full Board hearing be convened.”
[fn2] Upon initiation of a character review hearing, RFA
9.15 requires the chair of the board to appoint a special
investigator. The special investigator may prepare a
proposed statement “of the matters asserted or charged” and
generally is responsible for prosecuting the proceeding on
behalf of the board. RFA 9.20. RFA 9.35 provides, among
other things, for notice to the applicant of the “matters
asserted or charged and the applicant’s burden of proof”
and identifies the procedural rights of the applicant in
the proceeding. RFA 9.40 provides for discovery, including
depositions, subpoenas, and exchanges of lists of witnesses
and exhibits. RFA 9.45 addresses recording and transcribing
of the record of the hearing, evidentiary issues, exhibits,
oaths and testimony, and other aspects of the hearing
itself, including that the applicant has the burden of
proving by clear and convincing evidence that the applicant
has the requisite character and fitness to practice law.
RFA 9.50 addresses the hearing panel’s decision-making
process, and RFA 9.55 addresses the board’s decision-making
process; RFA 9.60 provides for review by this court of the
board’s decision.
[fn3] The public member of the small board that considered
this application was a psychologist.
[fn4] By the time that the Oregon Board of Bar Examiners
inquired, the Illinois Board of Admissions to the Bar,
pursuant to its records retention policy, had destroyed
most of the record of its character-review hearing for
applicant.
[fn5] Applicant disputes that he said those words, but he
concedes that he said something to the effect that, if a
police officer ended up with a bullet in the head laying on
the applicant’s lawn, applicant would refuse to treat the
police officer. We decline to decide here which report of
the incident is correct, but we do note that we do not
think that accepting applicant’s version of what he said
places applicant in a more favorable light.
[fn6] Drago, who at one time served as Sheriff of Morrow
County, submitted a letter of reference in support of the
applicant’s application for admission.
[fn7] Ms. Cooper is the assistant disciplinary counsel for
the Oregon State Bar who handled the applicant’s complaint
against Deputy District Attorney Ladd.
[fn8] Applicant also gave inconsistent information to the
police about whether he has a concealed weapon permit and
whether he has carried arms in the community.
[fn9] Even as recently as the date on which applicant
submitted his psychological evaluation report to the board,
applicant wrote the following in referring to Marlyce
Gholston, the Executive Director of the board:
“The attached material is confidential for Marlyce
Gholston. If you don’t know what that means — get a
dictionary. If you are still not sure — get another
job.”
(Emphasis in original.) Page 579