In Re Complaint as to the Conduct of Drake

TANZER, J.,

specially concurring.

I write separately because I do not believe the majority’s disposition adequately protects the public or promotes public confidence in the legal profession.

The 1976 and 1977 incidents should be separately considered. Each is a separate instance of intolerable professional conduct. In my view, in the absence of extenuation, either is cause for permanent disbarment because each involves dishonesty to a client regarding his funds.

The 1976 Loan

The Bar showed that the accused solicited a loan from Gallagher, telling him it was for an unnamed client, and received the money. There is no documentation or other evidence to suggest that the accused transmitted the *719 money to any client. In the normal course of business, such documentation would exist. This leaves the inference that the money stopped at the accused and that the accused lied to his client, Gallagher. Obtaining money from a client by false pretenses is a grievous breach of professional conduct.

That inference is not successfully rebutted. The accused attempted to rebut the inference by testimony regarding a client, Waldner, who engaged in short-term, speculative business deals. His testimony is the first introduction of Waldner’s name into these proceedings or the preceding investigation. There is no documentation of payment of $10,000 to Waldner. The accused has had time to find Waldner and call him as a witness, but has not done so, has shown no effort to do so, and did not request a continuance in which to do so. The accused’s conduct is not that of a person who knows of an exculpatory witness. Instead, he testified that he did not remember the circumstances of the transaction, but that his former secretary actually gave Waldner the $10,000, apparently in cash. He did not call her as a witness, did not assert that she was unavailable, and made no showing that he had attempted unsuccessfully to obtain her testimony. Again, this is not the conduct of an accused person who expects a witness to provide exculpatory testimony. The accused’s testimony regarding Waldner has all the earmarks of recent fabrication.

The Trial Board, which observed the accused testify, found:

“The Board finds that the testimony of the accused is not credible; that it is not in accord with representations made in his letter of November 15, 1979, to the Oregon State Bar; it is in conflict with the written evidence * *

My reading of the transcript confirms that finding and causes me also to find that the accused’s testimony is false. His false testimony fails to rebut the inference that the accused solicited $10,000 from his client by use of false pretenses and kept the money for his own purposes. 1

*720 The majority finesses this by a cryptic finding that Gallagher loaned the money to the accused, without reference to whether it went on to Waldner. I would find that the accused falsely solicited and obtained the loan on his own behalf.

The 1977 Incident

The reluctance of the majority to come to a specific finding as to disposition of the 1976 loan should not detract from our recognition of the gravity of the 1977 transaction. The latter transaction, standing alone, sufficiently reflects dishonesty in the lawyer-client relationship to warrant more than a three-year suspension.

When Gallagher inquired about his 90-day loan, a year after it was made, the accused lied to him about the disposition of the money. The accused wrote that he had loaned it to another client. In fact, the money had never been loaned to a client or (if the accused is to be believed) it was still loaned to the same client, Waldner, who had not paid it back, who had gone broke and whose meager assets were tied up in tax liens. Either way, the accused deliberately lied to his client in 1977 about his handling of the client’s funds and their whereabouts. That act is utterly inconsistent with the maintenance of public trust in the legal profession.

Conclusion

In In re Pierson, 280 Or 513 , 571 P2d 907 (1977), we said

“* * * a single conversion by a lawyer to his own use of his client’s funds will result in permanent disbarment.” 280 Or at 518 .

This accused’s conduct is at least as culpable as that in the Pierson case. It is equally intolerable professional conduct, and it is equally deleterious to public safety and public confidence. This record discloses no extenuation. This is not a case of inexperience or a lapse of judgment due to mental or emotional problems with which the accused is effectively dealing. Nor does the accused face up to his conduct and profess a repentant intention never to repeat it. Any such circumstances might allow us to conclude that the public would be adequately served by a less *721 severe sanction. Here, however, there is only evidence of lying to a client and using his money improperly.

I take no pleasure in assuming a position separate from my associates but, as for me, I shall vote to permanently disbar lawyers guilty of dishonesty to clients regarding clients’ funds unless there are extenuating circumstances. I do not do so as a matter of leniency or harshness, but rather of the responsible exercise of our public trust in the regulation of licensure to practice law.

Justice Linde agrees that the accused’s admitted misrepresentation concerning the relending of Gallagher’s money in 1977, when Gallagher clearly was a client, justifies disbarment in the absence of mitigating circumstances, without regard to the original 1976 transaction.

Linde, J., joins in part in this opinion.

The Trial Board also noted that even under the accused’s version of the 1976 loan, he admittedly acted contrary to the interests of the client by encouraging him to make an unsecured, undocumented usurious loan to an unnamed debtor who was at best a poor risk.