PER CURIAM.
In this disciplinary proceeding, the Bar’s complaint contained three charges arising out of activities of the accused as a student and as an instructor in certain courses offered during the 1976-77 school year at Linn-Benton Community College (college). The Trial Board found the accused not guilty of all charges. The Disciplinary Review Board found the accused guilty of the first charge and not guilty of the second and third charges.
From the evidence it appears that for several years the accused was employed as a deputy district attorney in Linn County and, at the time in question, was chief deputy. By reason of previous military service, he was entitled under federal law to certain educational benefits relating to payment of tuition and fees and subsistence. He wanted to use those benefits before his eligibility expired.
As to the first cause of complaint, the allegations of the complaint, as admitted in the answer, establish further facts. The accused enrolled at the college as a student for the fall term of 1976. At the same time he was employed by the college as instructor for a course entitled "Civil Procedures.” In that term he registered for classes that would qualify him for payment of educational benefits by the Veterans’ Administration (VA). In early October the college cancelled a class in which he had previously enrolled. On or about October 6 he enrolled as a student in "Civil Procedures” in order to maintain his VA benefits at the same level as before the cancellation.
On November 4 he
was advised by the VA that his enrollment in "Civil Procedures” was not approved, and on the following day he enrolled in yet another course to keep his total number of credit hours at the previous level.
The complaint originally charged that in order to receive those benefits the accused was required to maintain nine credit hours per term. The accused denied that allegation. At the commencement of proceedings before the Trial Board, the Bar proposed to delete that allegation from the complaint and to substitute: "The applicant wished to maintain V.A. benefits and nine credit hours.” The record does not reflect any action by the Trial Board upon that proposal. The original complaint transmitted to this court reveals no amendment by way of obliteration or interlineation, and there is no amended complaint in the record. This hearing was conducted before publication of our decision in
In re Galton,
289 Or 565, 615 P2d 317 (1980), and this Trial Board, therefore, could not be expected to heed our request there made concerning amendments.
We conclude that, considering the record in the light most favorable to the accused, the original specific allegation is deemed withdrawn and that the substitute was not made.
The accused denied that his conduct was unethical.
As to the second cause of complaint, the admitted allegations further establish that during the 1976-77 school year and the following school year, the accused enrolled at the college to obtain an associate degree in general studies "as a student to receive Veterans’ Administration benefits.” Among other subjects, he took courses entitled "Legal Aspects of Evidence; Legal Assistants and Legal Research; Elements of Supervision; Law of Banking; Industrial Safety II; Introduction to Criminal Law; Psychology for Supervisors; Introduction to Business; Small Business Management; Introduction to Law; and Tm Okay, You’re Okay.’ ”
The accused denied that he took the courses "for the purpose of obtaining money from the Veterans’ Administration and not for the purpose of qualifying the Accused for employment.” He further denied that his conduct was unethical or deserving of discipline.
I. The First Cause of Complaint
The Bar’s position is that the accused’s conduct violates Disciplinary Rule 1-102(A)(4): "A lawyer shall not: Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
The Bar is asserting that the accused knew that he could not receive credit for taking a course that he was employed to teach and that, nevertheless, he enrolled in that course for the sole purpose of avoiding a reduction in his VA subsistence payments, and thereby obtained VA benefits to which he was not, and could not be, entitled. The accused’s explanation is that, when faced with the cancellation of the class in early October, he could not find another course to substitute that did not conflict in scheduling with his other classes. He asserts that he only enrolled in his own class as a stopgap measure to enable him to find a course which would not present a scheduling conflict.
On cross-examination the accused testified:
"Q. When you registered in your own class, Mr. Houchin, did you feel you were going to benefit personally as well as financially?
"A. No. My reason in doing that was to keep the veteran benefits from being reduced or terminated until I found another course to register in. I did benefit, because in that course I did more research than I did in all the other courses because I am not daily working in civil matters. But I didn’t benefit exactly as a student, but because I had to work as a teacher.”
The evidence indicates, however, that the accused did not diligently concern himself with finding another course in which to register. Some four weeks went by until he was notified that the VA would not pay benefits for taking his own course. Apparently he was quite willing to accept subsistence benefits as a nine-hour credit student rather than what he actually was, namely, a six-hour credit student, until the VA balked.
He then immediately dropped his own course and signed up for a course entitled "Concepts.” That class met at the same time as did "Introduction to Law,” another course being taken by the accused at the time.
We find, as did the Disciplinary Review Board, that the accused intended to continue in Civil Procedures and was not working to resolve a scheduling conflict. We hold that the accused’s conduct is proscribed by Rule 1-102(A)(4) quoted above. The accused is guilty of the first cause of complaint.
II. The Second Cause of Complaint
The Bar originally took the position that Canon 9 was violated: "A lawyer should avoid even the appearance of impropriety.” We find it to be clear that the accused’s motive in enrolling in the rather fundamental, law-related courses named above was primarily financial; nevertheless, both the college and the VA were fully advised by the accused of his educational background, and both approved his enrolling in those coruses for credit. Such conduct is clearly not within any of the three specific situations described in DR 9-101(A),(B), or (C) and, therefore,
does not violate Canon 9.
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PER CURIAM.
In this disciplinary proceeding, the Bar’s complaint contained three charges arising out of activities of the accused as a student and as an instructor in certain courses offered during the 1976-77 school year at Linn-Benton Community College (college). The Trial Board found the accused not guilty of all charges. The Disciplinary Review Board found the accused guilty of the first charge and not guilty of the second and third charges.
From the evidence it appears that for several years the accused was employed as a deputy district attorney in Linn County and, at the time in question, was chief deputy. By reason of previous military service, he was entitled under federal law to certain educational benefits relating to payment of tuition and fees and subsistence. He wanted to use those benefits before his eligibility expired.
As to the first cause of complaint, the allegations of the complaint, as admitted in the answer, establish further facts. The accused enrolled at the college as a student for the fall term of 1976. At the same time he was employed by the college as instructor for a course entitled "Civil Procedures.” In that term he registered for classes that would qualify him for payment of educational benefits by the Veterans’ Administration (VA). In early October the college cancelled a class in which he had previously enrolled. On or about October 6 he enrolled as a student in "Civil Procedures” in order to maintain his VA benefits at the same level as before the cancellation.
On November 4 he
was advised by the VA that his enrollment in "Civil Procedures” was not approved, and on the following day he enrolled in yet another course to keep his total number of credit hours at the previous level.
The complaint originally charged that in order to receive those benefits the accused was required to maintain nine credit hours per term. The accused denied that allegation. At the commencement of proceedings before the Trial Board, the Bar proposed to delete that allegation from the complaint and to substitute: "The applicant wished to maintain V.A. benefits and nine credit hours.” The record does not reflect any action by the Trial Board upon that proposal. The original complaint transmitted to this court reveals no amendment by way of obliteration or interlineation, and there is no amended complaint in the record. This hearing was conducted before publication of our decision in
In re Galton,
289 Or 565, 615 P2d 317 (1980), and this Trial Board, therefore, could not be expected to heed our request there made concerning amendments.
We conclude that, considering the record in the light most favorable to the accused, the original specific allegation is deemed withdrawn and that the substitute was not made.
The accused denied that his conduct was unethical.
As to the second cause of complaint, the admitted allegations further establish that during the 1976-77 school year and the following school year, the accused enrolled at the college to obtain an associate degree in general studies "as a student to receive Veterans’ Administration benefits.” Among other subjects, he took courses entitled "Legal Aspects of Evidence; Legal Assistants and Legal Research; Elements of Supervision; Law of Banking; Industrial Safety II; Introduction to Criminal Law; Psychology for Supervisors; Introduction to Business; Small Business Management; Introduction to Law; and Tm Okay, You’re Okay.’ ”
The accused denied that he took the courses "for the purpose of obtaining money from the Veterans’ Administration and not for the purpose of qualifying the Accused for employment.” He further denied that his conduct was unethical or deserving of discipline.
I. The First Cause of Complaint
The Bar’s position is that the accused’s conduct violates Disciplinary Rule 1-102(A)(4): "A lawyer shall not: Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
The Bar is asserting that the accused knew that he could not receive credit for taking a course that he was employed to teach and that, nevertheless, he enrolled in that course for the sole purpose of avoiding a reduction in his VA subsistence payments, and thereby obtained VA benefits to which he was not, and could not be, entitled. The accused’s explanation is that, when faced with the cancellation of the class in early October, he could not find another course to substitute that did not conflict in scheduling with his other classes. He asserts that he only enrolled in his own class as a stopgap measure to enable him to find a course which would not present a scheduling conflict.
On cross-examination the accused testified:
"Q. When you registered in your own class, Mr. Houchin, did you feel you were going to benefit personally as well as financially?
"A. No. My reason in doing that was to keep the veteran benefits from being reduced or terminated until I found another course to register in. I did benefit, because in that course I did more research than I did in all the other courses because I am not daily working in civil matters. But I didn’t benefit exactly as a student, but because I had to work as a teacher.”
The evidence indicates, however, that the accused did not diligently concern himself with finding another course in which to register. Some four weeks went by until he was notified that the VA would not pay benefits for taking his own course. Apparently he was quite willing to accept subsistence benefits as a nine-hour credit student rather than what he actually was, namely, a six-hour credit student, until the VA balked.
He then immediately dropped his own course and signed up for a course entitled "Concepts.” That class met at the same time as did "Introduction to Law,” another course being taken by the accused at the time.
We find, as did the Disciplinary Review Board, that the accused intended to continue in Civil Procedures and was not working to resolve a scheduling conflict. We hold that the accused’s conduct is proscribed by Rule 1-102(A)(4) quoted above. The accused is guilty of the first cause of complaint.
II. The Second Cause of Complaint
The Bar originally took the position that Canon 9 was violated: "A lawyer should avoid even the appearance of impropriety.” We find it to be clear that the accused’s motive in enrolling in the rather fundamental, law-related courses named above was primarily financial; nevertheless, both the college and the VA were fully advised by the accused of his educational background, and both approved his enrolling in those coruses for credit. Such conduct is clearly not within any of the three specific situations described in DR 9-101(A),(B), or (C) and, therefore,
does not violate Canon 9.
In re Ainsworth,
289 Or 479, 493, 614 P2d 1127, 1134 (1980).
See also, In re Sidman,
289 Or 495, 499, 614 P2d 1135, 1136 (1980), and
In re Smith,
289 Or 501, 510, 614 P2d 1136, 1141 (1980).
The Bar now concedes there is no violation of Canon 9 as limited in scope by those three cases. Although that concession is not binding upon this court, we concur and find the accused not guilty on the second cause of complaint.
We find the Oregon State Bar to be the prevailing party and therefore award judgment to the Oregon State Bar against the accused for the Bar’s actual and necessary costs and disbursements incurred in these disciplinary proceedings.
Finally, we must determine what action the court will take with respect to the accused’s unethical conduct. It appears that some notoriety in the area where the accused practices has already obtained and that perhaps the accused has lost a chance for gubernatorial appointment to a judicial position by reason of this matter. Accused asserts that in these circumstances he has already been sufficiently "punished”
and this court should not further heap coals. This court is always mindful of the fact that notoriety may attend upon unethical behavior and that disciplinary proceedings are very probably humiliating to a member of a learned profession. That has not prevented us in the past from imposing sanctions.
See,
for example,
In re Bartlett,
283 Or 487, 584 P2d 296 (1978), and
In re Maurice C. Corcoran,
201 Or 371, 270 P2d 158 (1954).
The Disciplinary Review Board recommended that the accused be reprimanded, but we believe that to be an insufficient sanction. We have found that the accused was at least dishonest in his dealings with the VA and by reason of that dishonesty obtained money to which he was
not entitled.
We find and hold that suspension from practice for a period of 30 days is appropriate.
The accused is suspended from the practice of law for a period of 30 days from the date of the entry of the mandate herein. Judgment is hereby awarded in favor of the Oregon State Bar and against the accused for the amount of the actual and necessary costs and disbursements of the Oregon State Bar incurred in this entire disciplinary proceeding.