
 FILED:  December 3, 1998





IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Application 



for Reinstatement of





DAVID K. ALLEN,





Applicant.









(OSB 94-191; SC S41729)
	En Banc





	Application for reinstatement to the practice of law in

Oregon.





	Submitted on the record August 11, 1998.  Resubmitted

November 25, 1998.





	Marc D. Blackman, of Ransom Blackman, Portland, for

applicant.





	Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego,

for the Oregon State Bar.





	PER CURIAM





	Application for reinstatement approved.







	PER CURIAM



	In In re Allen, 326 Or 107, 949 P2d 710 (1997), this

court suspended applicant from the practice of law for a period

of one year.  That suspension will expire on February 18, 1999. 

Applicant seeks early reinstatement.  For the reasons that

follow, we conclude that applicant is entitled to receive credit

toward the remaining period of his disciplinary suspension for

time that he spent in a voluntary and complete withdrawal from

the practice of law pending completion of the disciplinary

proceeding (withdrawal credit).  We therefore reinstate him. 

However, we also conclude that, until the Board of Governors

(Board) of the Oregon State Bar (Bar) evaluates the merits of

withdrawal credit and, if it so chooses, recommends -- and this

court approves -- an amendment to the State Bar Rules of

Procedure (Rules of Procedure) that incorporates withdrawal

credit, this court no longer will extend withdrawal credit.



	In Allen, after determining that a one-year suspension

was the appropriate sanction for applicant's misconduct, the

court addressed briefly "the question whether the accused is

entitled to credit for any time spent in a voluntary withdrawal

from the practice of law before the imposition of the

disciplinary suspension * * *."  Id. at 131.  The court reasoned

that the concept of withdrawal credit is consistent with the

goals of lawyer discipline, which include "[protection of] the

public and the administration of justice."  Ibid.: see also

American Bar Association's Standards for Imposing Lawyer

Sanctions 1.1 (1991) (amended 1992) (ABA Standards) (stating

same).  However, the court found that the record in Allen was

insufficient to determine, at that time, whether applicant was

entitled to receive credit for any time that he had spent in a

voluntary and complete withdrawal from the practice of law

pending completion of the disciplinary proceeding in his case. 

The court held:



	"In order to qualify for such credit, the accused must

demonstrate, in a formal application for reinstatement

filed under [Rule of Procedure] BR 8.1(a), that he has

complied with all requirements for reinstatement and,

as a matter of fact, has refrained completely from the

practice of law for not less than the required period

of the disciplinary suspension."  Allen, 326 Or at 132.

	Shortly thereafter, applicant filed a formal

application for reinstatement.  After conducting its

investigation, the Board recommended applicant's reinstatement on

character and fitness grounds, but submitted to this court the

question whether applicant is entitled to any credit against the

term of his suspension for time that he spent in a voluntary and

complete withdrawal from the practice of law.  The court referred

the matter to the Bar for a hearing before its Disciplinary

Board.



	No hearing occurred.  Instead, on July 20, 1998, 

applicant and the Bar agreed to a factual stipulation regarding

applicant's employment between March 1994 (when applicant

committed the criminal misconduct that resulted in his one-year

suspension) and June 24, 1998 (when applicant accepted a position

as a staff attorney for the Office of Public Advocacy in

Fairbanks, Alaska).  Based on that stipulation, applicant filed a

motion requesting that this court reconsider its order of

referral.  In addition to timing considerations, applicant

asserted that "[t]his court is uniquely qualified to determine

whether [applicant] is entitled to credit for the time he

voluntarily withdrew from the practice of law prior to his formal

suspension."  We allowed the motion. 



	The stipulation reveals that applicant did not engage

in the practice of law for a period of 25 months between March

1995 and February 1998.  During that time, he served only as a

law clerk for lawyers.  He did not accept fees from any client,

and he claimed the "law clerk" exemption from coverage by the

Professional Liability Fund.  



	As noted above, the court in Allen adopted the concept

of withdrawal credit and held that applicant "is a candidate for

such credit" upon a showing that he "refrained completely from

the practice of law for not less than the required period of the

disciplinary suspension."  Id.  The stipulation reveals that

applicant did so.  Consequently, we conclude that applicant is

entitled to withdrawal credit for the time remaining on the

period of his disciplinary suspension. 



	Granting applicant withdrawal credit in this

reinstatement proceeding does not end the matter.  In considering

applicant's entitlement to withdrawal credit, we also have

considered whether it was premature for this court to insert the

concept of withdrawal credit into the lawyer discipline process. 

We conclude that it was.  Consequently, we now decline to

implement further that portion of Allen that introduced the

concept of withdrawal credit. 



	The lawyer discipline process, including reinstatement

proceedings, is governed by the Rules of Procedure that the Board

adopts and this court approves.  ORS 9.005(8); ORS 9.542; BR 1.2;

see also In re Barber, 322 Or 194, 206, 904 P2d 620 (1995)

(describing process).  Although in Allen the court did not

describe the concept of withdrawal credit as an amendment to the

lawyer discipline process, such credit could be viewed as having

that effect.  As described in Allen, withdrawal credit also may

have other unforeseen effects on the lawyer discipline process

that deserve evaluation.  We conclude that the better course is

for the Board in the first instance to consider whether the Rules

of Procedure should be amended to incorporate the concept of

withdrawal credit and, if so, how withdrawal credit should be

administered to serve the goals of the lawyer discipline process.



As stated at the outset of this opinion, until the Board

evaluates the merits of withdrawal credit and, if it so chooses,

recommends -- and this court approves -- an amendment to the

Rules of Procedure that incorporates withdrawal credit, this

court no longer will extend withdrawal credit. 



	Application for reinstatement approved.

