In Re Jaffee

874 P.2d 1299, 319 Or. 172, 1994 Ore. LEXIS 52

• Court: Oregon Supreme Court
• Decided: June 16, 1994
• Docket: SC S35948
• Status: Published

Opinions

PER CURIAM

This is a contested bar admission case in which the issue is whether applicant Kenneth Miles Jaffee (applicant) should be admitted to the Oregon State Bar (Bar). We admit applicant to practice.

Applicant is a graduate of the McGeorge School of Law, an attorney admitted to the practice of law in California, and has passed the necessary examinations for admission to practice in Oregon. The question of his admission to practice in Oregon has been before this court once before. In In re Jaffee, 311 Or 159, 164-65, 806 P2d 685 (1991), this court denied applicant admission to the Bar on the ground that five years had not yet elapsed since applicant had committed acts that, had they been committed by an active member of the Bar, likely would have led to that person’s disbarment. More than five years have now passed, and applicant has reapplied for admission. Although the then-members of the Oregon Board of Bar Examiners (the Board) recommended applicant’s admission when the case previously was before this court, the present Board, by a split vote, has recommended that applicant not be admitted.

Because it serves as an excellent predicate for our discussion of the issues in the present case, we quote at length from the statement of procedural and factual history in our former opinion:

“Applicant passed the Oregon State Bar examination in July 1988 and had earlier passed the Multistate Professional Responsibility Examination. After a hearing in November 1988, the Oregon Board of Bar Examiners, by a split vote, did not recommend his admission. Applicant did not seek review of that decision in this court.

“[Applicant] reapplied in 1990. On August 28,1990, after another hearing, the Board recommended his admission by a vote of ten to two. We initially denied his admission by an order dated September 18, 1990, without receiving written or oral arguments. Thereafter, applicant petitioned for reconsideration before this court. * * * [This court thereafter] provided the same review as [it] would have if applicant had appealed an adverse recommendation by the Board. * * *

"* * * * *

“From 1975 to late 1982, applicant practiced law in Sacramento, California, in the field of criminal defense. In July 1986, he was suspended from practice for one year and placed on probation for one year, for neglect of client matters and unprofessional conduct, which had occurred in 1981 and 1982. Also while practicing in California, applicant served two days in jail for contempt, relating to his presentation of the defense in a criminal jury trial, and was, on another occasion, fined $50.

“Applicant’s wife, who also was his sole employee, was murdered in September 1982. The crime has not been solved, but applicant believes that a former client was responsible. Following his wife’s death, applicant moved to a rural area in southern Oregon. From late 1982 to late 1985, he was not employed; he used marijuana almost daily.

“In August 1985, law enforcement officers raided applicant’s property pursuant to a search warrant. They found 143 marijuana plants, ranging in size from tiny seedlings to tall plants, in a garden plot and window box. Also found were scales, a needle kit, books concerning drugs, a few small plastic bags of dried marijuana, and numerous firearms. In December 1985, applicant was convicted of manufacture of a controlled substance, ORS 475.992(l)(a), a Class A felony. He had no prior criminal record, and no additional charges were brought as a result of the 1985 incident.

“Applicant was sentenced to community service and probation. He performed the community service at the Center for Non-Profit Legal Services, Inc., as a legal assistant. In July 1986, his probation was revoked for a threat of violence and for possession of firearms. He was sentenced to six months in jail and further probation. Applicant served the six months in jail. In March 1988, the circuit court granted an early termination of the extended probation.

“After applicant disclosed the conviction to the California State Bar, it instituted a disciplinary proceeding. Applicant agreed to all pertinent facts and cooperated in the disciplinary process. He stipulated to a six-month suspension from practice followed by two and one-half years of monitored probation. The Cahfornia Supreme Court accepted the stipulation by order dated April 29,1989. Applicant served the six-month suspension without incident and has complied with all aspects of the monitored probation, including quarterly reporting. If the probation is not violated, it will end on April 30. 1992.

“Applicant testified that he has not used drugs since the revocation of his probation in 1986. He described his incarceration as a turning point. After serving the jail sentence, in early 1987 he again became employed at the same legal services office as a legal assistant. At the time of the hearing, applicant remained in that position. His supervisor testified that applicant was committed to the legal services program and that he would be hired as a staff attorney there, if admitted. That also was applicant’s desire. His supervisor and coworkers praised applicant’s legal skills and rehabilitation and gave their unqualified recommendation for his admission.

“In addition, applicant became active in a nonprofit drug and alcohol rehabilitation and counseling program that serves the Jackson County area, and became president of the organization’s board of directors. The executive director of the program, a clinical psychologist, recommended applicant’s admission without qualification. She praised his work with clients [of that program] and his leadership on the program’s board. In her professional opinion, applicant’s antisocial behavior after his wife's death, from 1982 to the incarceration in 1986, was an aberration that he would not repeat in the future.”

Id. at 161-63 (footnote omitted).

Testimony at the hearing on applicant’s most recent application for admission did not materially alter our understanding of any of the facts surrounding applicant’s history. It does appear from the most recent record that applicant’s public service activities have continued and, if anything, expanded. Applicant also has been able to resume close ties with his parents — a connection that was of some assistance both to applicant and his father during applicant’s mother’s long illness and death due to cancer. The parents had moved to the Medford area to be near applicant; applicant’s father continues to reside there. As will appear, the Board does not seem to challenge applicant’s general reformation or his good works. Its concern — to the extent that it has one — focuses on applicant’s 1985 and 1986 behavior and, more specifically, on what applicant now says about that behavior.

An applicant for admission to the Bar must show that he or she is a person of good moral character. ORS 9.220(2)(a).¹ An applicant must prove that he has the requisite character by clear and convincing evidence. In re Rowell, 305 Or 584, 588, 754 P2d 905 (1988). That means that an applicant must show that it is “highly probable” that he has good moral character. In re Monaco, 317 Or 366, 370 n 4, 856 P2d 311 (1993). Any significant doubts about an applicant’s character should be resolved in favor of protecting the public by denying admission to the applicant. In re Easton, 298 Or 365, 367-68, 692 P2d 592 (1984) (citing In re Alpert, 269 Or 508, 518, 525 P2d 1042 (1974)), cert den 472 US 1012 (1985).

Applicant acknowledges that his prior misconduct shows that, at the time of that misconduct, he lacked the good moral character and fitness to be admitted to the practice of law in Oregon. The crucial inquiry is whether, following that time, applicant has reformed sufficiently to warrant his admission to the Bar. In re Rowell, supra, 305 Or at 588. This court spoke to the burden that this inquiry places on applicant when it said, in the course of its first opinion, that

“applicant may reapply for admission after July 23, 1991. Applicant thereafter must (as an applicant for reinstatement [after disbarment] would have to do) establish by clear and convincing evidence that he is rehabilitated and presently possesses the necessary good moral character for admission ^ ‡ ‡ 99

In re Jaffee, supra, 311 Or at 165.

As the Board acknowledges, “[r]eformation is a very difficult matter for a petitioner to prove and for [this court] to judge.” In re Bernard Jolles, 235 Or 262, 275, 383 P2d 388 (1963). But reformation can be proved to this court’s satisfaction, as this court’s past decisions attest. See, e.g., In re Rowell, supra (illustrating proposition). As evidence of reformation, this court has looked to (1) character testimony from those who know and have had an opportunity to observe the applicant, In re Bernard Jolles, supra, 235 Or at 275-76; (2) participation in activities that benefit society, In re Rowell, supra, 305 Or at 591; and (3) an applicant’s forthright acknowledgment of the wrongfulness of his or her past actions, In re Fine, 303 Or 314, 736 P2d 183 (1987).

The record in the present case is replete with examples of all three of the foregoing types of evidence of reformation. Coworkers who have known and worked with applicant for years attest to his good character and dedication to his work and to the clients whom he serves. Supervisors echo those sentiments. Applicant's continuing and effective work on behalf of the disadvantaged and afflicted, including chemically dependent persons and persons afflicted with AIDS, is described by several people. And applicant not only acknowledges the wrongfulness of his acts, but points out that he has always been forthcoming concerning them. Detailing all the foregoing evidence would not serve any useful purpose. It is sufficient to say that it more than satisfies the demanding burden of proof of good character that applicant assumes in applying for admission to the Bar.

A majority of the Board was not so sure, however. While accepting the evidence of reformation and good works, the Board majority was not entirely persuaded that applicant was being completely forthcoming about his criminal activity. The majority relied on two circumstances: A technical linguistic dispute between applicant and the Board majority over the terms of the probation that he was serving for the drug charge, and the significance of the amount of marijuana that applicant was cultivating at the time of his arrest. We shall discuss each of those topics briefly.

Applicant’s criminal probation was revoked, in part, because he possessed firearms, something prohibited of convicted felons. Applicant has always conceded that revocation of his probation for gun possession was warranted, because it demonstrated that he was not conducting himself as a law-abiding citizen while on probation. Applicant has always insisted, however, that the specific terms of probation imposed in his case did not mention gun possession. This is both an accurate and an incomplete statement. The probation order itself did not mention firearm possession. The order did incorporate by reference the standard written conditions of supervision imposed by the Oregon State Corrections Division, however, and those conditions include a prohibition on possession of firearms.

The Board majority labels applicant’s position on this topic as a “misleading * * * attempts to minimize or discount the cause of the probation revocation.” We disagree. Applicant has been entirely forthcoming as to what happened and why it happened. There has been no minimization. Applicant repeatedly has described the events that led to his probation revocation and has acknowledged the justification for that revocation. No more was required of him.

Perhaps the more important of the Board’s differences with applicant centers on applicant’s drug offense. The objective facts are that applicant was found to be growing 143 marijuana plants, ranging from several that were five or six feet tall to many that were quite small seedlings. All were in or just adjacent to applicant’s house. Applicant readily admitted growing the plants; the dispute is over his purpose in growing them.

Applicant contends that he began by growing plants in order to have a personal supply of marijuana. (He had been using marijuana heavily since his wife’s death.) However, the total number of plants, if grown to maturity, would have exceeded by far any personal use needs of applicant and his housemate. Applicant acknowledges this. He contends that he simply got carried away with the process of growing the plants. For its part, the Board theorizes that applicant in fact had embarked on a commercial marijuana growing operation.

Applicant admits that he thought about the fact that, if all of the plants grew to maturity, he would have enough marijuana to sell, but he denies ever intending to sell any of it. As the Board summarizes its position,

“While Applicant’s statements are not diametrically opposed to one another, it is difficult to square a contention that the marijuana was solely for personal consumption with a concession, made later when pressed, that marijuana sales were considered. The [Board] is left to conclude that the Applicant’s assertion regarding personal consumption was not accurate or completely candid.”

Again, we disagree. The picture that emerges to us from the transcripts is that of a man who was then clinically depressed² and who, with no financial pressures and no motivation to work at anything constructive, began growing marijuana plants for his own use and became intrigued with the process. What law enforcement authorities discovered was not an organized “growing” operation. Instead, plants in various stages of maturation (the vast majority of them quite small) were located in different places in and around the house. It was August, yet there was no irrigation system or any system designed to provide sufficient light to enable the seedlings to mature into the fall and early winter.

It is no surprise that a person of the applicant’s intelligence and background as a criminal defense lawyer would recognize that, were all of the plants to mature, they would produce enough cured marijuana to sell. Indeed, it would have been far harder to believe applicant had he testified that he did not think of the possibility of selling some of the contraband substance. But awareness is not design or intent, and we are satisfied that applicant did not proceed beyond the awareness stage. We also note, in this regard, that applicant asserts — and there is no evidence to the contrary — that he did not even have a range of acquaintances in Oregon to whom he could have sold his crop. His reclusive lifestyle was utterly at odds with any scheme to become a major marijuana vendor; it was completely consistent with applicant’s own explanation of his activities. We do not find a conflict between applicant’s consistently told story and the physical facts.

Two particular points support our conclusion that applicant is not now the same sort of person who was convicted of a felony and later had his probation revoked: A psychologist who works constantly with applicant in a nonprofit agency is so persuaded of applicant’s reformation that she has openly encouraged applicant’s involvement in several highly visible acts of public service with which the psychologist siso is associated. In so doing, she puts the credibility of her own nonprofit agency “on the fine.” We find that to be a strong endorsement. We also note that, after his probation was revoked, and after he had served time in jail, applicant’s probation was extended. Later, however, that probation extension was dropped, and applicant was discharged from probation. Those decisions were made by a veteran trial judge, one whose eyes are very resistant to having wool pulled over them. We find this shortening of applicant’s probation by a person who knows applicant better than we to be a further indication that applicant truly has reformed.

Like the responsible authorities in the State of California, which presently recognizes applicant as qualified to practice in that state, we now are satisfied from the record in this case that it is highly probable that applicant possesses the necessary character to justify his admission to the Bar. The fact that applicant possesses the other necessary qualifications for admission is not contested, and we find that those qualifications are present.

We agree that reasonable persons — as the dissenters clearly are — could reach a different conclusion than do we. Indeed, given the history of split votes by the Board concerning the issue before us, it perhaps would have been more remarkable had we been unanimous. We note here only that, having considered all that the dissenters — both by their written opinion and in extensive discussions — have urged us to consider, we are satisfied that applicant is now fit to practice law in Oregon.

Neither do we mean to suggest that the present Board majority (or previous Board members who were concerned during earlier versions of this case) is being irrational in its concerns. Some lingering doubt on the subject is reasonable. But applicant’s burden is to establish that certain facts are “highly probable”; it is not to establish those facts beyond any reasonable doubt.

This case has been on a yo-yo before the Board. The first time that body considered applicant’s request for admission, it recommended (by a divided vote) that admission be denied. The second time that it considered the matter, it recommended (by a divided vote) that applicant be admitted. In this, the third application process, it again recommends denial Gay a divided vote). On three tries, the votes stand at 19 for admission, 21 opposed.³ None of the three votes appears to have been based on personal observations by Board members of the manner in which applicant testified. Compare In re Fine, supra (in which personal observations of the manner in which the applicant testified played a role). We simply are left to the record. From that record, a majority of this court now concludes that applicant, as he stands before us today, is qualified for admission.

Applicant is admitted to the practice of law in the State of Oregon.

1 ORS 9.220 provides in part:

“An applicant for admission as attorney must apply to the Supreme Court and show that the applicant:

"* * * * *

“(2)(a) Is a person of good moral character and fit to practice law.

“(b) For purposes of this section * * *, 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.”

2 A clinical psychologist testified at one of the hearings that, in her opinion, applicant suffered duringthe pertinent period from post-traumatic stress syndrome.

3 Or, more accurately, that is the best count that we can manage. We do not know whether the period of service of some members of the Board may have overlapped two votes or whether (if there was overlapping) any member changed his or her vote.