Opposition Brief — Parker v. Oregon State Board of Bar Examiners

E Cupreaa Cowt, US.

BiwTED

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No. 92-1449 Mar BM

putes ge pe tink

In The

Supreme Court of the United States

October Term, 1992

+

ROBERT ROOSEVELT PARKER, JR.,

Petitioner,

THE OREGON STATE BOARD OF BAR EXAMINERS,

Respondent.

On Petition For Writ Of Certiorari

To The Oregon Supreme Court

¢

BRIEF IN OPPOSITION

TO WRIT OF CERTIORARI

*

JEFFREY D. Sapiro

Oregon State Bar

5200 S.W. Meadows Road

Lake Oswego, OR 97035

(503) 620-0222

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO, oy 225 6964

OR CALL COLLECT (402) 342-283

QUESTIONS PRESENTED

1. Whether the Court has jurisdiction to review the

Oregon Supreme Court’s decision denying Petitioner

admission to practice law in Oregon, when only one of

Petitioner’s constitutional claims was raised in the state

court proceedings and, in that instance, the claim was

made for the first time in his Petition for Reconsideration

of the Oregon Supreme Court’s opinion, such that it may

not have been truly decided by the state supreme court.

2. Whether the Court should exercise its discretion-

ary authority to review the Oregon Supreme Court's deci-

sion denying Petitioner admission to practice law in

Oregon, when the Oregon Supreme Court, to the extent it

may have considered or decided a federal constitutional

question under the Due Process Clause or Equal Protec-

tion Clause of the 14th Amendment to the United States

Constitution, did not do so in a manner which is in

conflict with any decision of another state court of last

resort, a U.S. Court of Appeals or the United States

Supreme Court.

3. Whether the Court should exercise its discretion-

ary authority to review the Oregon Supreme Court’s deci-

sion denying Petitioner admission to. practice law in

Oregon, when the ample evidence of Petitioner’s lack of

requisite good moral character leads to the conclusion

that Petitioner’s admission to practice law did not turn

on the state court’s adherence to the standards and pro-

cedures to which Petitioner now objects.

il

TABLE OF CONTENTS

Page

CQUGSTRANS PRG SRPel ee oo iss cece esa ctinvncwinns i

PEATE MEOESS Ge TUE Ai ihc cess nc unvaescesenans 1

Pe. PO CNG. ch ess 5 eevee eeee oko 1

eg . Bret eer ee ee 2

SUMMARY OF THE ARGUMENT ................. 3

PE ree ee te rey ees Se 4

I. Petitioner’s Failure to Timely or Properly Raise

His Federal Questions Deprives the Court of

Jurisdiction Under 28 USC § 1257(a).......... 4

Il. There Is No Conflict Among States, Circuits, Or

With This Court Over The Constitutional Propri-

ety Of Admissions Standards Similar To Those

mh CORON «oo 5 + ccsuuivune ese et aren meena 7

III. Ample Evidence In The Record Established Peti-

tioner’s Lack of Good Moral Character Regardless

Of Where The Burden Of Proof Was Placed..... 11

CA PILATUN ons dos 5b eae 4 ce ee ee ee 13

hg g i? | Ce rer rer rr re App. 1

see

TABLE OF AUTHORITIES

Page

Cases

Ailes v. Portland Meadows, Inc., 312 Or 376, 823

ee 4,6

Bailey v. Anderson, 326 US 203 (1945) ............--. 6

Cardinale v. Louisiana, 394 US 437 (1969).......... 4,6

Cooper v. Eugene School District No. 4J, 301 Or

IE ME Og gsc peace nssccsserscecess 5

Eddings v. Oklahoma, 455 US 104 (1982)............. 6

Herndon v. Georgia, 295 US 441 (1935).............-. 7

Highway Com. v. Helliwell, 225 Or 588, 358 P2d

oh Err rT Tr eke eee ee ee 5

In re Fine, 303 Or 314, 736 P2d 183 (1987).......... 13

In re Parker, 314 Or 143, _. P2d ___ (1992) ...... 4, 12

In re Rowell, 305 Or 584, 754 P2d 905 (1988)......... 8

Konigsberg v. State Bar, 353 US 252 (1957)......... 5, 3

Konigsberg v. State Bar, 366 US 36 (1961)......... 9, 10

Law Students Research Council v. Wadmond, 401

a iy has yh KARA Ra wh 5 8s On es 10

Martin-Trigona v. Underwood, 529 F2d 33 (7th Cir.

2 sae Law h ae WERE A ESD Oda pS eno Ree R OOO 9

Raley v. Ohio, 360 US 423 (1959)..............-20055. 6

Schware v. Board of Bar Examiners, 353 US 232

re eek FN Ck ADS asses Mo caneiw ene s 7, 8

Speiser v. Randall, 357 US 513 (1958) ............. 9, 10

State v. Hitz, 307 Or 183, 766 P2d 373 (1988)......... 5

iV

TABLE OF AUTHORITIES - Continued

Page

Stembridge v. Georgia, 343 US 541 (1952)............ 6

Thompson v. Louisville, 362 US 199 (1960)....... 11, 13

CONSTITUTIONS, STATUTES, CouRT RULES

ra Se C.F oc aa ky ned aewadcdanrs 3, 4, 10

- te RT TERT ELT SER OPES UTTER ECE EET TT 4

Oregon Revised Statute 9.220(2)............ ce Bie te

Oregon Revised Statute 9.529 ....................008. 5

Oregon Rule of Appellate Procedure 5.45(2).......... 5

Oregon Rule of Appellate Procedure 9.25(3).......... 6

Oregon Rule of Appellate Procedure 11.25 ........... 5

Oregon Rule for Admission 12.10(6).................. 8

STATEMENT OF THE CASE

A. Factual History.

Based on the evidence introduced into the record in

this proceeding, the Board of Bar Examiners (BBX), essen-

tially the “trial court” in this context, found: that Peti-

tioner applied for admission to the State Bar of Michigan

but the District Character and Fitness Committee in that

state recommended against admission in 1986, and Peti-

tioner withdrew his appeal of that decision; that, over

several years, Petitioner engaged in a pattern of incurring

large amounts of debt and then defaulting on these obli-

gations; that, over a period of 12 years, Petitioner made

little or no payment on a court-ordered child support

obligation resulting in a $13,000 arrearage by 1990; that,

while defending himself pro se in collection litigation,

Petitioner gave sworn testimony that was incomplete and

misleading, and admitted to engaging in tactics to delay

the proceeding; that, on several occasions, Petitioner

made incomplete or misleading statements in applica-

tions for credit; that Petitioner impersonated his

employer, an Oregon state senator, to provide an employ-

ment reference for himself; that Petitioner admitted he

stood by while a co-worker impersonated the same state

senator on the phone in order to provide an employment

reference for the Petitioner; that, despite being ques-

tioned by the state senator about an alleged impersona-

tion incident, Petitioner denied that any impersonation

took place and then failed to disclose for over three years

the impersonation committed by Petitioner’s co-worker;

and that Petitioner refuses even today to identify the co-

worker who committed the admitted impersonation on

Petitioner’s behalf.

Based on these findings, the BBX determined by a

10-3 vote that there were ample reasons to conclude that

Petitioner did not possess the good moral character and

general fitness to practice law required in Oregon (ORS

9.220(2)(b)). The BBX therefore rendered its decision rec-

ommending to the Oregon Supreme Court that the Peti-

tioner’s admissions application be denied. The three BBX

members recommending admission deemed it appropri-

ate that such admission, if it were to be granted, be

conditional upon established and continued oversight of

Petitioner’s management of client funds.

B. Procedural History.

Respondent accepts Petitioner’s statement of the pro-

cedural history of this case with the following additions:

At no time prior to or during the evidentiary hear-

ings before the BBX, over three separate days in May,

June and July of 1991, did Petitioner raise any concern or

objection of constitutional dimension regarding the

allocation of the burden of proof or the quantum of

evidence required in Oregon bar admissions proceedings.

Nowhere in his Petition for Review or supporting

Brief filed with the Oregon Supreme Court, and at no

time during oral argument before that court, did Peti-

tioner raise any constitutional claim regarding the alloca-

tion of the burden of proof or the quantum of evidence

required in Oregon bar admissions proceedings.

The Oregon Supreme Court opinion denying Peti-

tioner’s application for admission was unanimous and

addressed only one of several grounds deemed sufficient

by the BBX to warrant denial.

Petitioner then filed with the Oregon Supreme Court

a Petition for Reconsideration in which he raised only one

of the constitutional issues he now presents — whether the

burden of proof allocated to Petitioner comports with the

Due Process Clause under the 14th Amendment to the

United States Constitution.

The order denying Petitioner’s Petition for Recon-

sideration was silent as to whether the Oregon Supreme

Court considered or decided the due process issue belat-

edly raised by Petitioner.

SUMMARY OF THE ARGUMENT

Petitioner did not timely raise his constitutional

claims in the state court proceeding, nor can it be said

with any certainty that the Oregon Supreme Court truly

decided these federal questions. There is no conflict

among jurisdictions or any compelling reason provided

by inconsistencies in case law for the Court to review

whether Oregon’s burden of proof and quantum of evi-

dence required in bar admissions matters are appropriate.

Ample evidence in the record supports the Oregon

Supreme Court’s decision such that Petitioner’s applica-

tion for admission to practice law may very well have

been denied regardless of the allocation of the burden of

proof.

ARGUMENT

I. Petitioner’s Failure to Timely or Properly Raise His

Federal Questions Deprives the Court of Jurisdic-

tion Under 28 USC §1257(a).

Although Petitioner presents five separate, federal

questions to this Court, his contentions come down to

whether the state practices in bar admissions proceedings

of placing the burden of proof on the applicant, and of

requiring such proof by clear and convincing evidence,

were constitutionally defective. This Court has jurisdic-

tion to consider these questions under 28 USC §1257(a)

only if Petitioner properly and timely raised them in the

state court proceedings. Cardinale v. Louisiana, 394 US 437

(1969). He did not do so.

Petitioner raised none of the now asserted constitu-

tional claims before the Board of Bar Examiners (BBX),

the “trial court” in Oregon’s bar admissions system. Peti-

tioner also failed to raise initially any federal question

before the Oregon Supreme Court, either in his Petition

for Review and Supporting Brief or during argument. Not

until the Oregon Supreme Court denied Petitioner’s

admission, In re Parker, 314 Or 143, P2d ___ (1992), did

he file a Petition for Reconsideration with the state

supreme court raising for the first time a constitutional

issue, and only one - that placing the burden of proof on

Petitioner violated the Due Process Clause of the 14th

Amendment to the U. S. Constitution.

In Oregon, the general rule is that an issue must be

raised and preserved at trial in order for it to be consid-

ered on appeal. Ailes v. Portland Meadows, Inc., 312 Or 376,

823 P2d 956 (1991), relying on Oregon Rule of Appellate

Procedure (ORAP) 5.45(2) which provides:

“No matter assigned as error will be considered

on appeal unless it was preserved in the lower

court and assigned as error in the party’s open-

ing brief; provided that the appellate court may

consider errors of law apparent on the face of

the record.”

While this preservation principle is not rigid, Oregon

courts have generally ruled that constitutional questions,

particularly, will not be considered for the first time on

appeal if not at least raised below. State v. Hitz, 307 Or

183, 766 P2d 373 (1988); Cooper v. Eugene School District

No. 4J, 301 Or 358, n. 12, 723 P2d 298 (1986); Highway Com.

v. Helliwell, 225 Or 588, 591, 358 P2d 719 (1961).

Less clear is whether the unique nature of Bar admis-

sions proceedings render this preservation principle inap-

plicable. Bar admissions cases are matters of original

jurisdiction with the state supreme court, neither civil nor

criminal in nature but sui generis. Oregon Revised Statute

(ORS) 9.529. They are subject to their own method of

appellate review. See ORAP 11.25, regarding appellate

procedure in Bar admissions, reinstatement and disci-

pline matters. Indeed, Konigsberg v. State Bar, 353 US 252,

254-58 (1957), suggests a bar admissions applicant will

not be strictly held to procedural requirements regarding

issue preservation for appeal.

Distinguishing Konigsberg from Petitioner’s case,

however, is that the applicant in Konigsberg asserted his

constitutional claims orally at hearing and in writing to

the California Supreme Court. Here, Petitioner raised no

constitutional claim until after his case was decided by

the Oregon Supreme Court. There was, therefore, no

opportunity for the BBX to compile a record with the

federal questions in mind or to determine whether its

decision would be any different were petitioner’s objec-

tions to be remedied - important considerations under

Cardinale v. Louisiana, 394 US 437, 439 (1969). At the

appellate level, there was no full airing of the federal

claims through competing arguments of adversary parties

in briefs and oral argument, deemed critical for appellate

review in Oregon. Ailes v. Portland Meadows, Inc., supra,

312 Or at 382.

Was Petitioner’s failure to raise his constitutional

questions before the Board of Bar Examiners or the

Supreme Court on review “cured”, at least as to the one

federal question regarding burden of proof, when Peti-

tioner raised it in his Petition for Reconsideration, which

the Oregon Supreme Court denied? The answer may be

yes if the Oregon Supreme Court actually considered and

decided the federal question in the course of denying the

reconsideration petition. Raley v. Ohio, 360 US 423,

436-437 (1959). However, when the state court is silent as

to the basis of its denial, as here, jurisdiction by this

Court is debatable and therefore should not be exercised.

Stembridge v. Georgia, 343 US 541, 547-48 (1952); Bailey v.

Anderson, 326 US 203, 206-07 (1945). Cf., Eddings v. Okla-

homa, 455 US 104 (1982), where a federal question raised

for the first time in a petition for rehearing was consid-

ered timely after the state court permitted arguments on

the question and the court’s subsequent order of denial

stated that the arguments were fully considered. In Ore-

gon, ORAP 9.25(3) precludes any response to a petition

for reconsideration except at the express request of the

court. No such arguments were requested or allowed by

the Oregon Supreme Court in this case.

Finally, petitioner asserts that some of his federal

questions could not have been raised sooner than his

Petition for Reconsideration because he could not have

anticipated the: Oregon Supreme Court to rule the way

that it did. Herndon v. Georgia, 295 US 441, 443-44 (1934).

First, it bears repeating that Petitioner’s reconsideration

request raised but one constitutional argument, regarding

burden of proof. Second, the burden of proof and quan-

tum of evidence in Oregon bar admissions matters were

clear and known to Petitioner from the outset. If Peti-

tioner believed there were constitutional objections to

these standards, asserting those objections did not need

to await the issuance of the Oregon Supreme Court’s

opinion.

This Court should not entertain the Petition for Writ

of Certiorari based on contentions that were not timely

and properly raised, but clearly were afterthoughts fol-

lowing the decision of the Oregon Supreme Court deny-

ing Petitioner’s application for admission to practice law.

II. There Is No Conflict Among States, Circuits, Or

With This Court Over The Constitutional Propriety

Of Admissions Standards Similar To Those In Ore-

gon.

This Court has long held that states are free to estab-

lish standards by which applicants for admission to prac-

tice law are measured, provided that any such

qualification has a rational connection with an applicant's

fitness or capacity to practice. Schware v. Board of Bar

Examiners, 353 US 232 (1957). Oregon follows the Schware

directive in Oregon Revised Statute (ORS) 9.220(2), which

provides:

9.220 General requirements for admission. An appli-

cant 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 and ORS

9.025, 9.070, 9.110, 9.130, 9.210, 9.250, 9.527

and 9.545, the lack of “good moral charac-

ter” 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, fair-

ness 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 ratio-

nally connected to the applicant’s fitness to

practice law.

Like many other states, Oregon places the burden of

proving good moral character and fitness on the appli-

cant. Rule for Admission 12.10(6); In re Rowell, 305 Or 584,

754 P2d 905 (1988).

Petitioner has pointed to no decision of this Court,

any federal circuit or any state court of last resort, and

Respondent has found none, which holds in a bar admis-

sions context that placing the burden of proof on an

applicant or requiring proof by clear and convincing evi-

dence violates due process of law. To the contrary, exist-

ing case law rejects such a contention.

In Konigsberg v. State Bar, 353 US 252 (1957), this

Court reversed a California state court decision denying a

bar applicant’s admission to practice law, for lack of

evidence in the record rationally justifying the denial. In

a dissent from the majority opinion regarding the suffi-

ciency of the evidence, Justice Harlan stated that the

Court did not “find wanting in any respect” California’s

good moral character requirement or the state rule of

practice placing the burden of proof on the applicant,

noting that 46 of 48 states then did so. Id. at 278. Four

years later, this time writing for the majority in the sequel

Konigsberg v. State Bar, 366 US 36 (1961), Justice Harlan

again referred to the many jurisdictions in which an

applicant for admission to the bar bears the burden of

proving good moral character, “a requirement whose val-

idity is not, nor could well be, drawn in question here.”

366 US at 40-41.

At the circuit level, there is Martin-Trigona v. Under-

wood, 529 F2d 33 (7th Cir. 1975). There, a challenge on due

process grounds to Illinois’ admissions process generally

and to the allocation of the burden of proof to the appli-

cant specifically, was rejected with reference to Konigsberg

I.

Much is made by Petitioner of Speiser v. Randall, 357

US 513 (1958), a case not involving bar admissions but the

propriety of a state provision conferring tax exempt sta-

tus only to those who carry out the burden of proving

they do not advocate the overthrow of the government.

This Court struck the state provision, finding that placing

the burden of proving non-advocacy of government over-

throw on the taxpayer was violative of due process con-

siderations.

10

Speiser is no reason for this Court to grant certiorari

in Petitioner’s case. The holding in Speiser was expressly

limited to those state provisions which are curbs on the

constitutional right to speak and, with this limitation, the

holding is not necessarily or automatically applicable to

the bar admissions context. This was made abundantly

clear in the second Konigsberg v. State Bar, 366 US 36

(1961), in which this Court emphasized the distinction in

Speiser between statutes the intent of which is to penalize

the expression of political beliefs, on the one hand, and

statutes the intent of which is merely to regulate access to

positions where unfitness may lead to abuse detrimental

to the public interest, like membership to the bar. For the

former category of statutes, Speiser requires that the state

must bear the burden of proving justification for inhibit-

ing speech. No such requirement exists for the latter

category. Compare Law Students Research Council v. Wad-

mond, 401 US 154 (1971), in which this Court upheld New

York’s character and fitness requirement but questioned,

without deciding, whether placing the burden of proof on

a bar applicant in the form of a loyalty oath likely to

inhibit speech was permitted under the Due Process

Clause of the 14th Amendment.

No inhibition of free speech is implicated in Peti-

tioner’s case or in the Oregon system regulating bar

admission by placing the burden of proving good moral

character on the applicant. Neither Speiser v. Randall,

supra, nor any other decision of this Court, of federal

circuits or of state courts of last resort, has determined

that such a regulatory scheme is constitutionally defec-

tive.

11

Ill. Ample Evidence In The Record Established Peti-

tioner’s Lack of Good Moral Character Regardless

Of Where The Burden Of Proof Was Placed.

Petitioner urges this Court to review the legal stan-

dards involving the burden of proof and quantum of

evidence required in Oregon bar admissions matters.

Ultimately, however, the evaluation of an applicant who

wishes to be admitted to practice law is very fact-specific,

determined by the evidence of the applicant’s good moral

character and fitness. Oregon Revised Statute (ORS)

9.220(2).

When evidence is in dispute or credibility of wit-

nesses is in question, allocation of the burden of proof

and the quantum of evidence required may, in a given

case, affect the moral character and fitness evaluation. In

this case, however, there was ample evidence, much of it

undisputed, supporting a conclusion adverse to Peti-

tioner regardless of who had the burden of proof and

regardless of the quantum of evidence required. This is

further reason why Petitioner’s claims are not appropri-

ate candidates for review by this Court.

Petitioner suggests that the Oregon Supreme Court

denied his admission “without any evidence in its opin-

ion” to support such a result, citing Thompson v. Louisville,

362 US 199 (1960). Petition for Writ at 26. This assertion is

not correct, but even if it were, it is the record of the

proceeding which must be examined for evidence, not

merely the language of the state supreme court opinion.

In this regard, it is important to note that the state

supreme court expressly chose to discuss but one of

several grounds deemed sufficient by the Board of Bar

12

Examiners to deny Petitioner’s application. Jn re Parker,

314 Or 143, n. 2, __ P2d ___ (1992).

Petitioner’s “no evidence” assertion calls for a brief

review of the record. Aside from the issue of impersonat-

ing a state senator upon which the state supreme court

focused, and referencing only evidence undisputed or

admitted by Petitioner, the record before the BBX estab-

lished: that Petitioner’s application for admission in

Michigan was recommended for denial in part because

Petitioner failed to appear in court or pay traffic tickets

resulting in at least one bench warrant being issued

against him; that Petitioner incurred large amounts of

debt, defaulted on many of his obligations and failed to

satisfy judgments obtained against him; that Petitioner

paid little or nothing over 12 years on a modest $100 per

month court-ordered child support obligation; that Peti-

tioner submitted applications for credit which contained

incomplete information regarding his outstanding debts

and length of employment; and that Petitioner engaged in

delaying tactics in litigation in which he appeared pro se.

The state supreme court saw no need to discuss these

many findings adverse to Petitioner but instead focused

its attention on two episodes of alleged impersonation of

Petitioner’s employer, then State Senator James Hill. Evi-

dence regarding one such episode was in dispute. The

other episode, however, was established by admissions

from Petitioner and uncontroverted testimony from Sena-

tor Hill, quoted in the Supreme Court opinion and set

forth at pages 43a-47a of the Petition for Writ. This testi-

mony established: that Petitioner witnessed another indi-

vidual impersonating Senator Hill on Petitioner’s behalf

during a phone call; that, when asked, Petitioner denied

13

to Senator Hill and others that any impersonation took

place; and that Petitioner did not disclose this undisputed

impersonation for over three years thereafter.

Clearly, there was “evidence” in the Thompson v.

Louisville sense supporting the BBX and state supreme

court’s rejection of Petitioner’s admissions application. It

is also reasonable to conclude that, based on this uncon-

troverted evidence “which would cause a reasonable per-

son to have substantial doubts about [Petitioner’s]

honesty, fairness and respect for the rights of others and

the laws of the state and the nation”, ORS 9.220(2)(b),

Petitioner’s admission to practice law did not turn on

who had the burden of proof or the quantum of evidence

required. Had Petitioner timely raised his now asserted

constitutional claims, the Oregon Supreme Court may

very well have said so, as it did in another contested

admissions case where similar challenges were raised.

See In re Fine, 303 Or 314, n. 1, 736 P2d 183 (1987).

CONCLUSION

Bar admissions standards should not be arbitrary

barriers to those qualified to practice law, but they must

be an effective method of protecting the public from

individuals lacking the character and fitness required of

lawyers. Petitioner has provided no reason under the

Federal Constitution for this Court to question Oregon’s

admissions standards as applied in Petitioner’s case.

14

The Petition for Writ of Certiorari should be denied.

May 1993

Respectfully submitted

JerFREY D. Sapiro

Oregon State Bar

5200 S.W. Meadows Road

Lake Oswego, Oregon 97035-0889

(503) 620-0222

Counsel for Respondent

App. i

OREGON REVISED STATUTE 9.529 Status of proceedings

relating to discipline; admission or reinstatement. Bar

proceedings relating to discipline, admission and rein-

statement are neither civil nor criminal in nature. They

are sui generis and within the inherent power of the

Supreme Court to control. The grounds for denying any

applicant admission or reinstatement or for the discipline

of attorneys set forth in this chapter are not intended to

limit or alter the inherent power of the Supreme Court to

deny any applicant admission or reinstatement to the bar

or to discipline a member of the bar.

ORAP 9.25 RECONSIDERATION IN SUPREME COURT

(1) A party seeking reconsideration of a decision of

the Supreme Court shall file a petition for reconsideration

within 21 days from the date of the decision. The petition

shall be in the form of a brief, prepared in conformity

with Rule 5.05, insofar as it is applicable. The petition

shall include a copy of the court’s decision. A petitioner

shall identify on the cover which party is the petitioner,

the date of the decision, and, if there is an opinion or if

there are opinions, the judges who joined therein.

(2) The petitioner shall file the original and 12

copies of the petition with the Administrator. The original

shall show proof of service of 2 copies on every other

party to the appeal or review.

(3) No other party shall respond unless the court so

requests.

(4) The court shall either deny or allow reconsidera-

tion. If the court allows reconsideration, the court may

App. 2

reconsider with or without further briefing or oral argu-

ment. Reconsideration shall result in affirmance, mod-

ification or reversal of the decision that has been

reconsidered.

ORAP 11.25 BAR ADMISSION, REINSTATEMENT AND

DISCIPLINARY PROCEEDINGS.

(1) As used in this rule, the following are parties:

(a) The Oregon State Bar in a disciplinary, con-

tested admission or contested reinstatement proceeding.

(b) The accused in a disciplinary proceeding.

(c) The applicant in a contested admission pro-

ceeding.

(d) The applicant in a contested reinstatement

proceeding.

(2)(a) A petition concerning a disciplinary proceed-

ing, a bar applicant’s contested admission or a former

member’s contested reinstatement shall be filed with the

Administrator, together with an opening brief, with proof

of service on all parties, within 28 days after written

notice to the Bar’s Disciplinary Counsel and the parties of

the court’s receipt of the decision of the trial panel under

Oregon State Bar Rule of Procedure 10.5(a). An answering

brief shall be due 28 days after filing of the opening brief.

A reply brief, if any, shall be due 14 days after filing of

the answering brief.

(b) A brief in any of the proceedings named in this

rule shall conform to Rule 5.05, 5.10 and 5.35, except that

no abstract of record is required, and shall show proof of

App. 3

service on all parties to that proceeding. The Bar shall be

served by service on the Bar’s Disciplinary Counsel.

(3) If, notwithstanding Bar Rule of Procedure

10.5(b), an accused who is required to file a petition and

brief fails to do so within the time allowed under Bar

Rule of Procedure 10.5(a), the Bar shall:

(a) File a petition and brief within the time allowed

for filing an answering brief. The brief shall comply with

the rules governing petitions and opening briefs. At the

time the petition and brief are filed, the Bar shall indicate

whether it wishes to waive oral argument and submit the

case on the record, or

(b) Submit a letter stating that it wishes the matter

submitted to the court on the record without briefing or

oral argument. Notwithstanding waiver of briefing and

oral argument under this subsection, at the direction of

the Supreme Court, the Bar shall file a petition and brief

within the time directed by the court.

(4) If the case is argued orally, the party who files

the opening brief shall argue first.

OREGON RULE FOR ADMISSION 12.10 The proceeding.

+ + ©

(6) Burden of Proof. To be entitled to admission to the

practice of law in Oregon, an Applicant must establish by

clear and convincing evidence that she or he has the

requisite character and fitness to practice law.