D
ISCIPLINARY
B
OARD
R
EPORTER
Report of Lawyer Discipline Cases
Decided by the Disciplinary Board
and by the
Oregon Supreme Court
for 2017
VOLUME 31
January 1, 2017, to December 31, 2017
PREFACE
This Disciplinary Board Reporter (DB Reporter) contains final decisions
of the Oregon Disciplinary Board, stipulations for discipline between accused
lawyers and the OSB, summaries of 2017 decisions of the Oregon Supreme
Court involving the discipline of lawyers, and related matters. Cases in this DB
Reporter should be cited as 31 DB Rptr ___ (2017).
In 2017, a decision of the Disciplinary Board was final if neither the Bar
nor the Accused sought review of the decision by the Oregon Supreme Court.
See Title 10 of the Bar Rules of Procedure (www.osbar.org, click on Rules
Regulations and Policies) and ORS 9.536.
The decisions printed in this DB Reporter have been reformatted and
corrected for typographical errors, spelling errors, obvious grammatical or word
usage errors, and citation errors, but no substantive changes have been made to
them. Because of space restrictions, exhibits are not included but may be
obtained by calling the Oregon State Bar. Those interested in a verbatim copy
of an opinion should contact the Public Records Coordinator at extension 394,
503-620-0222 or 800-452-8260 (toll-free in Oregon). Final decisions of the
Disciplinary Board issued on or after January 1, 2016, are also available at the
Oregon State Bar Web site, www.osbar.org. Please note that the statutes,
disciplinary rules, and rules of procedure cited in the opinions are those in
existence when the opinions were issued. Care should be taken to locate the
current language of a statute or rule sought to be relied on concerning a new
matter.
General questions concerning the Bar’s disciplinary process may be
directed to me at extension 319.
D
AWN EVANS
Disciplinary Counsel
Oregon State Bar
iii
CONTENTS
Oregon Supreme Court, Board of Governors,
State Professional Responsibility Board ............................................................ iv
Disciplinary Board
2018 ........................................................................................................... v
2017 .......................................................................................................... vi
List of Cases Reported in This Volume ............................................................. vii
Cases ............................................................................................................ 1–350
iv
Justices of the Oregon Supreme Court
Martha Lee Walters, Chief Justice
Thomas A. Balmer
Rives Kistler
Lynn R. Nakamoto
Meagan A. Flynn
Rebecca A. Duncan
Adrienne C. Nelson
2018 Oregon State Bar Board of Governors
Michael D. Levelle, Immediate Past-President
Vanessa A. Nordyke, President
Christine R. Costantino, President-Elect
Colin Andries
John R. Bachofner
Whitney P. Boise
Eric R. Foster
John Grant
Robert Gratchner
Guy B. Greco
Eddie D. Medina
Thomas C. Peachey
Per A. Ramfjord
Kathleen J. Rastetter
Liani Reeves
Julia C. Rice
Michael Rondeau
Traci Rossi
Kerry L. Sharp
David Wade
Helen Hierschbiel, Chief Executive Officer
2018 State Professional Responsibility Board
Ankur Hasmukh Doshi, Chairperson
Carolyn Alexander
Joel C. Benton
Todd H. Grover
Kelly D. Lemarr
Elaine D. Smith-Koop
Amanda Walkup
Richard A. Weill
Randall Green, Public Member
Zena Polly, Public Member
Per A. Ramfjord, BOG Contact
v
2018 DISCIPLINARY BOARD
Adjudicator
Mark A. Turner
Region 1
Jennifer F. Kimble, Chairperson
Elizabeth A. Dickson
W. Eugene Hallman
Paul B. Heatherman
John E. Laherty
Michael H. McGean
Ronald L. Roome
Steven P. Bjerke, Public Member
Larry Lehman, Public Member
Ray J. Thomas, Public Member
Region 2
Jet Harris, Chairperson
Chas Horner
Teena M. Killian
Hon. Debra E. Velure
James K. Walsh
Carrie A. Bebout, Public Member
George A. McCully, Public Member
Region 3
John E. Davis, Chairperson
Kelly L. Andersen
Penny Lee Austin
Joan Marie Michelsen
Faith Marie Morse
Thomas W. Pyle, Public Member
April L. Sevcik, Public Member
Region 4
Kathy Proctor, Chairperson
Marcia Buckley
Matthew C. McKean
Arnold S. Polk
Simeon D. Rapoport
Sandra L. Frederiksen, Public Member
Bryan F. Penn, Public Member
Region 5
Ronald W. Atwood, Chairperson
Bryan D. Beel
Amy E. Bilyeu
Duane A. Bosworth
Rebecca Cambreleng
Craig A. Crispin
David F. Doughman
Richard C. Josephson
Samuel C. Kauffman
Michael Thomas McGrath
Charles J. Paternoster
Andrew M. Schpak
Krista S. Stearns
Anne Marie Talcott
Hon. Jill A. Tanner
Frank J. Weiss
Stephen D. Butler, Public Member
JoAnn Jackson, Public Member
Charles H. Martin, Public Member
James E. Parker, Public Member
Virginia Anne Symonds, Public Member
Charlie Van Rossen, Public Member
Natasha Voloshina, Public Member
Michael Wallis, Public Member
Region 6
James C. Edmonds, Chairperson
John T. Bagg
John L. Barlow
Joshua B. Crowther
Gina Anne Johnnie
Robert C. McCann
Lorena M. Reynolds
Yvonne Ana Tamayo
Fadd E. Beyrouty, Public Member
Dorothy A. Fallon, Public Member
Paul Mark Gehlar, Public Member
Sylvia Rasko, Public Member
Region 7
Andrew M. Cole, Chairperson
Willard H.Chi
Tom Kranovich
S Michael Rose
Tawnya Stiles-Johnson
Eugene L. Bentley, Public Member
Joan J. LeBarron, Public Member
vi
2017 DISCIPLINARY BOARD
State Chair
William G. Blair
State Chair Elect
Ron Atwood
Region 1
Jennifer F. Kimble, Chairperson
Elizabeth A. Dickson
Hallman, W. Eugene
Paul B. Heatherman
John E. Laherty
Michael H. McGean
Ronald L. Roome
Steven P. Bjerke, Public Member
Larry Lehman, Public Member
Ray J. Thomas, Public Member
Region 2
Jet Harris, Chairperson
Chas Horner
Meg E. Kieran
Debra E. Velure
James K. Walsh
Carrie A. Bebout, Public Member
George A. McCully, Public Member
Region 3
John E. Davis, Chairperson
Penny Lee Austin
Joel C. Benton
Joan Marie Michelsen
Dr. Anthony J. Rosilez
Thomas W. Pyle, Public Member
April L. Sevcik, Public Member
Region 4
Kathy Proctor, Chairperson
Deena B. Bothello
Marcia Buckley
Matthew C. McKean
Simeon D. Rapoport
Loni J. Bramson, Public Member
Sandra L. Frederiksen, Public Member
Region 5
Ronald W. Atwood, Chairperson
Bryan D. Beel
Duane A. Bosworth
Lisa M. Caldwell
Craig A. Crispin
David F. Doughman
Barry J. Goehler
Samuel C. Kauffman
Michael Thomas McGrath
Charles J. Paternoster
Kristina M. Reynolds
Krista S. Stearns
Anne Marie Talcott
Ulanda L. Watkins
Frank J. Weiss
Stephen D. Butler, Public Member
JoAnn Jackson, Public Member
Charles H. Martin, Public Member
James E. Parker, Public Member
Virginia Anne Symonds, Public Member
Natasha Voloshina, Public Member
Michael Wallis, Public Member
Region 6
James C. Edmonds, Chairperson
John T. Bagg
John L. Barlow
Joshua B. Crowther
Gina Anne Johnnie
Robert C. McCann
Lorena M. Reynolds
Yvonne Ana Tamayo
Fadd E. Beyrouty, Public Member
Dorothy A. Fallon, Public Member
Paul Mark Gehlar, Public Member
Sylvia Rasko, Public Member
Region 7
Andrew M.Cole, Chairperson
Willard H. Chi
Deanna L. Franco
Tom Kranovich
S. Michael Rose
Eugene L. Bentley, Public Member
Joan J. LeBarron, Public Member
vii
LIST OF CASES REPORTED
Volume 31
DB Reporter
(Includes summaries of Oregon Supreme Court stipulations and decisions
that also appear in the Advance Sheets)
In re Allen ........................................................................................................................................2
Violation of RPC 3.4(b), RPC 5.5(a), RPC 8.4(a)(2), and RPC 8.4(a)(4).
Stipulation for Discipline. One-year suspension.
In re Basham ..................................................................................................................................60
Violation of RPC 1.6(a), RPC 1.9(a), and RPC 1.9(c). Trial Panel Opinion.
One-year suspension.
In re Bottoms ................................................................................................................................328
Violation of RPC 1.5(c)(3), RPC 1.15-1(a), and RPC 1.15-1(c). Stipulation for Discipline.
30-day suspension.
In re Cain .....................................................................................................................................105
Violation of RPC 1.4(a) and RPC 1.4(b). Stipulation for Discipline.
Public Reprimand.
In re Carolan................................................................................................................................147
Trial Panel Opinion. Dismissed.
In re Castle ...................................................................................................................................254
Violation of RPC 1.3, RPC 1.4(a), and RPC 1.4(b). Stipulation for Discipline.
Public Reprimand.
In re Cohn-Lee .............................................................................................................................344
Violation of RPC 5.5(a) and ORS 9.160. Stipulation for Discipline.
Public Reprimand.
In re Collins .................................................................................................................................167
Violation of RPC 1.5(c)(3), RPC 1.15-1(c), and RPC 1.15-1(d).
Stipulation for Discipline. Public Reprimand.
In re Daily ....................................................................................................................................155
Violation of RPC 1.4(a), RPC 1.5(c), RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.16(d),
RPC 8.1(a)(2), RPC 8.1(c)(3), and RPC 8.1(c)(4). Stipulation for Discipline.
180-day suspension, formal reinstatement required.
viii
In re Enright ...................................................................................................................................34
Violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.16(d).
Stipulation for Discipline. 60-day suspension.
In re Faulhaber ..............................................................................................................................52
Violation of RPC 1.5(c)(3), RPC 1.9(a), and RPC 1.15-1(c).
Stipulation for Discipline. 30-day suspension.
In re Fjelstad ................................................................................................................................268
Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.16(a)(2), and RPC 1.16(d).
Stipulation for Discipline. 60-day suspension.
In re Friesen ...................................................................................................................................20
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.16(d), and RPC 8.1(a)(2).
Stipulation for Discipline. 6-month suspension.
In re Haglund ...............................................................................................................................142
Violation of RPC 1.7(a) and RPC 1.16(a)(1). Stipulation for Discipline.
Public Reprimand.
In re Heinzelman ..........................................................................................................................181
Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.15-1(c), RPC 1.15-1(d), and
RPC 1.16(a)(2). Stipulation for Discipline. Five-year suspension.
In re Henderson .............................................................................................................................95
Violation of RPC 1.3, RPC 1.4(a), RPC 1.16(a)(1), RPC 1.16(d), and RPC 8.1(a)(2).
Trial Panel Opinion. Four-month suspension.
In re Hilborn ................................................................................................................................205
Violation of RPC 3.1 and RPC 4.4(a). Stipulation for Discipline.
90-day suspension.
In re Huisman ..............................................................................................................................110
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.15-1(a), RPC 1.15-1(d), and
RPC 1.16(d). Trial Panel Opinion. 18-month suspension.
In re Hunt .......................................................................................................................................73
Violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.15-1(d). Stipulation for Discipline. 90-day suspension.
In re Keeler ..................................................................................................................................285
Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.5(c)(3),
RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.15-1(d), RPC 1.16(d), RPC 5.3(a), RPC 5.4(a),
RPC 5.5(a), RPC 8.1(a)(2), and RPC 8.4(a)(4). Stipulation for Discipline.
One-year suspension.
ix
In re Kirchoff................................................................................................................................204
Supreme Court Opinion. Two-year suspension.
In re Lee-Mandlin ..........................................................................................................................14
Violation of RPC 3.5(b) and RPC 8.4(a)(4). Stipulation for Discipline. Public Reprimand.
In re Lipetzky................................................................................................................................275
Violation of RPC 1.3, RPC 1.15-1(d), RPC 5.5(a), RPC 8.1(a)(2), RPC 8.4(a)(4), and
ORS 9.160. Stipulation for Discipline. Six-month suspension with formal reinstatement.
In re Lopata..................................................................................................................................... 1
Order revoking probation and imposing stayed suspension. 90-day suspension.
In re McConnell ...........................................................................................................................213
Violation of RPC 3.1. Stipulation for Discipline. 90-day suspension.
In re McElroy .................................................................................................................................82
Violation of RPC 1.7(a)(2) and RPC 1.8(a). Stipulation for Discipline.
Public Reprimand.
In re Merkel ....................................................................................................................................87
Violation of RPC 1.15-1(a) and RPC 1.15-2(b). Stipulation for Discipline.
30-day suspension, all stayed, pending one-year probation.
In re Monsebroten ........................................................................................................................198
Violation of RPC 1.4(a), RPC 1.4(b), RPC 1.5(c)(3), RPC 1.15-1(a), and RPC 1.15-1(c).
Stipulation for Discipline. Public Reprimand.
In re Morgan ..................................................................................................................................28
Violation of RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d).
Stipulation for Discipline. Public reprimand.
In re Powell ..................................................................................................................................193
Violation of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.15-1(d). Stipulation for Discipline. 90-day suspension.
In re Rasmussen ...........................................................................................................................241
Violation of RPC 8.4(a)(4). Stipulation for Discipline. Six-month suspension,
all but 60 days stayed, two-year probation.
In re Reed .......................................................................................................................................40
Violation of RPC 1.15-1(a), RPC 8.4(a)(3), and ORS 9.527(2).
Stipulation for Discipline. One-year suspension, all but six months stayed, two-year probation.
In re Rinks ....................................................................................................................................121
Violation of RPC 8.1(a)(2), RPC 8.4(a)(2), and RPC 8.4(a)(3).
Trial Panel Opinion. Disbarment.
x
In re Roller (I) ................................................................................................................................27
Supreme Court Opinion (affirming without opinion). Four-year suspension.
In re Roller (II) .............................................................................................................................304
Violation of RPC 1.2(a), RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.5(c)(3),
RPC 1.15-1(c), RPC 1.16(d), and RPC 8.1(a)(2). Trial Panel Opinion. Disbarment.
In re Ryan .....................................................................................................................................260
Violation of RPC 1.15-1(a), RPC 1.15-1(b), and RPC 1.15-1(c).
Stipulation for Discipline. 60-day suspension.
In re Smith ....................................................................................................................................333
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.15-1(a), RPC 1.15-1(c),
RPC 1.15-1(d), and RPC 1.16(d). Stipulation for Discipline. Six-month suspension
with formal reinstatement.
In re Stedman ...............................................................................................................................220
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.15-1(a),
RPC 1.15-1(c), RPC 1.16(c), RPC 1.16(d), RPC 3.3(a), RPC 3.4(c), RPC 8.1(a)(2),
RPC 8.4(a)(3), and RPC 8.4(a)(4). Trial Panel Opinion. Disbarment.
In re Vandergaw ..............................................................................................................................9
Violation of RPC 1.6(a). Stipulation for discipline. Public Reprimand.
In re Williamson ...........................................................................................................................173
Violation of RPC 1.5(c)(3), RPC 1.6(a), and RPC 1.8(a). Stipulation for Discipline.
Public Reprimand.
In re Yunker..................................................................................................................................133
Violation of RPC 1.3 and RPC 1.4(b). Stipulation for Discipline.
60-day suspension, all stayed, two-year probation.
D
ISCIPLINARY
B
OARD
R
EPORTER
Report of Lawyer Discipline Cases
Decided by the Disciplinary Board
and by the
Oregon Supreme Court
for 2017
VOLUME 31
January 1, 2017, to December 31, 2017
PREFACE
This Disciplinary Board Reporter (DB Reporter) contains final decisions
of the Oregon Disciplinary Board, stipulations for discipline between accused
lawyers and the OSB, summaries of 2017 decisions of the Oregon Supreme
Court involving the discipline of lawyers, and related matters. Cases in this DB
Reporter should be cited as 31 DB Rptr ___ (2017).
In 2017, a decision of the Disciplinary Board was final if neither the Bar
nor the Accused sought review of the decision by the Oregon Supreme Court.
See Title 10 of the Bar Rules of Procedure (www.osbar.org, click on Rules
Regulations and Policies) and ORS 9.536.
The decisions printed in this DB Reporter have been reformatted and
corrected for typographical errors, spelling errors, obvious grammatical or word
usage errors, and citation errors, but no substantive changes have been made to
them. Because of space restrictions, exhibits are not included but may be
obtained by calling the Oregon State Bar. Those interested in a verbatim copy
of an opinion should contact the Public Records Coordinator at extension 394,
503-620-0222 or 800-452-8260 (toll-free in Oregon). Final decisions of the
Disciplinary Board issued on or after January 1, 2016, are also available at the
Oregon State Bar Web site, www.osbar.org. Please note that the statutes,
disciplinary rules, and rules of procedure cited in the opinions are those in
existence when the opinions were issued. Care should be taken to locate the
current language of a statute or rule sought to be relied on concerning a new
matter.
General questions concerning the Bar’s disciplinary process may be
directed to me at extension 319.
D
AWN EVANS
Disciplinary Counsel
Oregon State Bar
iii
CONTENTS
Oregon Supreme Court, Board of Governors,
State Professional Responsibility Board ............................................................ iv
Disciplinary Board
2018 ........................................................................................................... v
2017 .......................................................................................................... vi
List of Cases Reported in This Volume ............................................................. vii
Cases ............................................................................................................ 1–350
iv
Justices of the Oregon Supreme Court
Martha Lee Walters, Chief Justice
Thomas A. Balmer
Rives Kistler
Lynn R. Nakamoto
Meagan A. Flynn
Rebecca A. Duncan
Adrienne C. Nelson
2018 Oregon State Bar Board of Governors
Michael D. Levelle, Immediate Past-President
Vanessa A. Nordyke, President
Christine R. Costantino, President-Elect
Colin Andries
John R. Bachofner
Whitney P. Boise
Eric R. Foster
John Grant
Robert Gratchner
Guy B. Greco
Eddie D. Medina
Thomas C. Peachey
Per A. Ramfjord
Kathleen J. Rastetter
Liani Reeves
Julia C. Rice
Michael Rondeau
Traci Rossi
Kerry L. Sharp
David Wade
Helen Hierschbiel, Chief Executive Officer
2018 State Professional Responsibility Board
Ankur Hasmukh Doshi, Chairperson
Carolyn Alexander
Joel C. Benton
Todd H. Grover
Kelly D. Lemarr
Elaine D. Smith-Koop
Amanda Walkup
Richard A. Weill
Randall Green, Public Member
Zena Polly, Public Member
Per A. Ramfjord, BOG Contact
v
2018 DISCIPLINARY BOARD
Adjudicator
Mark A. Turner
Region 1
Jennifer F. Kimble, Chairperson
Elizabeth A. Dickson
W. Eugene Hallman
Paul B. Heatherman
John E. Laherty
Michael H. McGean
Ronald L. Roome
Steven P. Bjerke, Public Member
Larry Lehman, Public Member
Ray J. Thomas, Public Member
Region 2
Jet Harris, Chairperson
Chas Horner
Teena M. Killian
Hon. Debra E. Velure
James K. Walsh
Carrie A. Bebout, Public Member
George A. McCully, Public Member
Region 3
John E. Davis, Chairperson
Kelly L. Andersen
Penny Lee Austin
Joan Marie Michelsen
Faith Marie Morse
Thomas W. Pyle, Public Member
April L. Sevcik, Public Member
Region 4
Kathy Proctor, Chairperson
Marcia Buckley
Matthew C. McKean
Arnold S. Polk
Simeon D. Rapoport
Sandra L. Frederiksen, Public Member
Bryan F. Penn, Public Member
Region 5
Ronald W. Atwood, Chairperson
Bryan D. Beel
Amy E. Bilyeu
Duane A. Bosworth
Rebecca Cambreleng
Craig A. Crispin
David F. Doughman
Richard C. Josephson
Samuel C. Kauffman
Michael Thomas McGrath
Charles J. Paternoster
Andrew M. Schpak
Krista S. Stearns
Anne Marie Talcott
Hon. Jill A. Tanner
Frank J. Weiss
Stephen D. Butler, Public Member
JoAnn Jackson, Public Member
Charles H. Martin, Public Member
James E. Parker, Public Member
Virginia Anne Symonds, Public Member
Charlie Van Rossen, Public Member
Natasha Voloshina, Public Member
Michael Wallis, Public Member
Region 6
James C. Edmonds, Chairperson
John T. Bagg
John L. Barlow
Joshua B. Crowther
Gina Anne Johnnie
Robert C. McCann
Lorena M. Reynolds
Yvonne Ana Tamayo
Fadd E. Beyrouty, Public Member
Dorothy A. Fallon, Public Member
Paul Mark Gehlar, Public Member
Sylvia Rasko, Public Member
Region 7
Andrew M. Cole, Chairperson
Willard H.Chi
Tom Kranovich
S Michael Rose
Tawnya Stiles-Johnson
Eugene L. Bentley, Public Member
Joan J. LeBarron, Public Member
vi
2017 DISCIPLINARY BOARD
State Chair
William G. Blair
State Chair Elect
Ron Atwood
Region 1
Jennifer F. Kimble, Chairperson
Elizabeth A. Dickson
Hallman, W. Eugene
Paul B. Heatherman
John E. Laherty
Michael H. McGean
Ronald L. Roome
Steven P. Bjerke, Public Member
Larry Lehman, Public Member
Ray J. Thomas, Public Member
Region 2
Jet Harris, Chairperson
Chas Horner
Meg E. Kieran
Debra E. Velure
James K. Walsh
Carrie A. Bebout, Public Member
George A. McCully, Public Member
Region 3
John E. Davis, Chairperson
Penny Lee Austin
Joel C. Benton
Joan Marie Michelsen
Dr. Anthony J. Rosilez
Thomas W. Pyle, Public Member
April L. Sevcik, Public Member
Region 4
Kathy Proctor, Chairperson
Deena B. Bothello
Marcia Buckley
Matthew C. McKean
Simeon D. Rapoport
Loni J. Bramson, Public Member
Sandra L. Frederiksen, Public Member
Region 5
Ronald W. Atwood, Chairperson
Bryan D. Beel
Duane A. Bosworth
Lisa M. Caldwell
Craig A. Crispin
David F. Doughman
Barry J. Goehler
Samuel C. Kauffman
Michael Thomas McGrath
Charles J. Paternoster
Kristina M. Reynolds
Krista S. Stearns
Anne Marie Talcott
Ulanda L. Watkins
Frank J. Weiss
Stephen D. Butler, Public Member
JoAnn Jackson, Public Member
Charles H. Martin, Public Member
James E. Parker, Public Member
Virginia Anne Symonds, Public Member
Natasha Voloshina, Public Member
Michael Wallis, Public Member
Region 6
James C. Edmonds, Chairperson
John T. Bagg
John L. Barlow
Joshua B. Crowther
Gina Anne Johnnie
Robert C. McCann
Lorena M. Reynolds
Yvonne Ana Tamayo
Fadd E. Beyrouty, Public Member
Dorothy A. Fallon, Public Member
Paul Mark Gehlar, Public Member
Sylvia Rasko, Public Member
Region 7
Andrew M.Cole, Chairperson
Willard H. Chi
Deanna L. Franco
Tom Kranovich
S. Michael Rose
Eugene L. Bentley, Public Member
Joan J. LeBarron, Public Member
vii
LIST OF CASES REPORTED
Volume 31
DB Reporter
(Includes summaries of Oregon Supreme Court stipulations and decisions
that also appear in the Advance Sheets)
In re Allen ........................................................................................................................................2
Violation of RPC 3.4(b), RPC 5.5(a), RPC 8.4(a)(2), RPC 8.4(a)(4).
Stipulation for Discipline. One-year suspension.
In re Basham ..................................................................................................................................60
Violation of RPC 1.6(a), RPC 1.9(a), and RPC 1.9(c). Trial Panel Opinion.
1-year suspension.
In re Bottoms ................................................................................................................................328
Violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c). Stipulation for Discipline.
30-day suspension.
In re Cain .....................................................................................................................................105
Violation of RPC 1.4(a) and RPC 1.4(b). Stipulation for Discipline.
Public Reprimand.
In re Carolan................................................................................................................................147
Trial Panel Opinion. Dismissed.
In re Castle ...................................................................................................................................254
Violation of RPC 1.3; RPC 1.4(a), and RPC 1.4(b). Stipulation for discipline.
Public Reprimand.
In re Cohn-Lee .............................................................................................................................344
Violation of RPC 5.5(a) and ORS 9.160. Stipulation for Discipline.
Public Reprimand.
In re Collins .................................................................................................................................167
Violation of RPC 1.5(c)(3), RPC 1.15-1(c) and RPC 1.15-1(d).
Stipulation for Discipline. Public Reprimand.
In re Daily ....................................................................................................................................155
Violation of RPC 1.4(a), RPC 1.5(c), RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.16(d),
RPC 8.1(a)(2), RPC 8.1(c)(3), and RPC 8.1(c)(4). Stipulation for Discipline.
180-day suspension, formal reinstatement required.
viii
In re Enright ...................................................................................................................................34
Violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c) and RPC 1.16(d).
Stipulation for Discipline. 60-day suspension.
In re Faulhaber ..............................................................................................................................52
Violation of RPC 1.5(c)(3), RPC 1.9(a), and RPC 1.15-1(c).
Stipulation for Discipline. 30-day suspension.
In re Fjelstad ................................................................................................................................268
Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.16(a)(2), and RPC 1.16(d).
Stipulation for Discipline. 60-day suspension.
In re Friesen ...................................................................................................................................20
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.16(d), and RPC 8.1(a)(2).
Stipulation for Discipline. 6-month suspension.
In re Haglund ...............................................................................................................................142
Violation of RPC 1.7(a) and RPC 1.16(a)(1). Stipulation for Discipline.
Public Reprimand.
In re Heinzelman ..........................................................................................................................181
Violation of RPC 1.1; RPC 1.3; RPC 1.4(a); RPC 1.15-1(c); RPC 1.15-1(d); and
RPC 1.16(a)(2). Stipulation for Discipline. 5-year suspension.
In re Henderson .............................................................................................................................95
Violation of RPC 1.3; RPC 1.4(a); RPC 1.16(a)(1); RPC 1.16(d); and RPC 8.1(a)(2).
Trial Panel Opinion. 4-month suspension.
In re Hilborn ................................................................................................................................205
Violation of RPC 3.1 and RPC 4.4(a). Stipulation for Discipline.
90-day suspension.
In re Huisman ..............................................................................................................................110
Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.15-1(a), RPC 1.15-1(d),
RPC 1.16(d). Trial Panel Opinion. 18-month suspension.
In re Hunt .......................................................................................................................................73
Violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.15-1(d). Stipulation for Discipline. 90-day suspension.
In re Keeler ..................................................................................................................................285
Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.5(c)(3),
RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.15-1(d), RPC 1.16(d), RPC 5.3(a), RPC 5.4(a),
RPC 5.5(a), RPC 8.1(a)(2), and RPC 8.4(a)(4). Stipulation for Discipline.
One-year suspension.
ix
In re Kirchoff................................................................................................................................204
Supreme Court Opinion. 2-year suspension.
In re Lee-Mandlin ..........................................................................................................................14
Violation of RPC 3.5(b) and RPC 8.4(a)(4). Stipulation for Discipline. Public Reprimand.
In re Lipetzky................................................................................................................................275
Violation of RPC 1.3, RPC 1.15-1(d), RPC 5.5(a), RPC 8.1(a)(2), RPC 8.4(a)(4), and
ORS 9.160. Stipulation for Discipline. 6-month suspension with formal reinstatement.
In re Lopata..................................................................................................................................... 1
Order revoking probation and imposing stayed suspension. 90-day suspension.
In re McConnell ...........................................................................................................................213
Violation of RPC 3.1. Stipulation for Discipline. 90-day suspension.
In re McElroy .................................................................................................................................82
Violation of RPC 1.7(a)(2) and RPC 1.8(a). Stipulation for Discipline.
Public Reprimand.
In re Merkel ....................................................................................................................................87
Violation of RPC 1.15-1(a) and RPC 1.15-2(b). Stipulation for Discipline.
30-day suspension, all stayed, pending 1-year probation.
In re Monsebroten ........................................................................................................................198
Violation of RPC 1.4(a); RPC 1.4(b); RPC 1.5(c)(3); RPC 1.15-1(a), and RPC 1.15-1(c).
Stipulation for Discipline. Public Reprimand.
In re Morgan ..................................................................................................................................28
Violation of RPC 1.15-1(a); RPC 1.15-1(c) and RPC 1.15-1(d).
Stipulation for Discipline. Public reprimand.
In re Powell ..................................................................................................................................193
Violation of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.15-1(d). Stipulation for Discipline. 90-day suspension.
In re Rasmussen ...........................................................................................................................241
Violation of RPC 8.4(a)(4). Stipulation for Discipline. 6-month suspension,
all but 60 days stayed, 2-year probation.
In re Reed .......................................................................................................................................40
Violation of RPC 1.15-1(a), RPC 8.4(a)(3), and ORS 9.527(2).
Stipulation for Discipline. 1-year suspension, all but 6 months stayed, 2-year probation.
In re Rinks ....................................................................................................................................121
Violation of RPC 8.1(a)(2), RPC 8.4(a)(2); RPC 8.4(a)(3).
Trial Panel Opinion. Disbarment.
x
In re Roller (I) ................................................................................................................................27
4-year suspension.In re Roller (II) ...............................................................................................304
Violation of RPC 1.2(a), RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.5(c)(3),
RPC 1.15-1(c), RPC 1.16(d), RPC 8.1(a)(2). Trial Panel Opinion. Disbarment.
In re Ryan .....................................................................................................................................260
Violation of RPC 1.15-1(a), RPC 1.15-1(b), and RPC 1.15-1(c).
Stipulation for Discipline. 60-day suspension.
In re Smith ....................................................................................................................................333
Violation of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC 1.15-1(a); RPC 1.15-1(c);
RPC 1.15-1(d) and RPC 1.16(d). Stipulation for Discipline. 6-month suspension
with formal reinstatement.
In re Stedman ...............................................................................................................................220
Violation of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC 1.5(a); RPC 1.15-1(a);
RPC 1.15-1(c); RPC 1.16(c); RPC 1.16(d); RPC 3.3(a); RPC 3.4(c); RPC 8.1(a)(2);
RPC 8.4(a)(3); and RPC 8.4(a)(4). Trial Panel Opinion. Disbarment.
In re Vandergaw ..............................................................................................................................9
Violation of RPC 1.6(a). Stipulation for discipline. Public Reprimand.
In re Williamson ...........................................................................................................................173
Violation of RPC 1.5(c)(3), RPC 1.6(a), and RPC 1.8(a). Stipulation for Discipline.
Public Reprimand.
In re Yunker..................................................................................................................................133
Violation of RPC 1.3 and RPC 1.4(b). Stipulation for Discipline.
60-day suspension, all stayed, two-year probation.
Cite as In re Lopata, 31 DB Rptr 1 (2017)
1
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 14-80
)
ANDREW J. LOPATA, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Order revoking probation and imposing stayed
suspension. 90-day suspension.
Effective Date of Order: January 15, 2017
ORDER REVOKING PROBATION
This matter came on before William G. Blair, State Chairperson of the Disciplinary
Board of the Oregon State Bar, upon the Bar’s Petition to Revoke Probation pursuant to BR
6.2(d). The State Chairperson, being fully advised in the premises, now therefore,
IT IS HEREBY ORDERED that Andrew J. Lopata’s probation is revoked and the
original 90-day suspension is imposed, effective ten days from the date of this order.
EXECUTED this 5th day of January, 2017.
/s/ William G. Blair
William G. Blair, OSB No. 690212
State Disciplinary Board Chairperson
Cite as In re Allen, 31 DB Rptr 2 (2017)
2
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 15-119
)
ANTHONY A. ALLEN, ) SC S064630
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 3.4(b), RPC 5.5(a), RPC 8.4(a)(2),
RPC 8.4(a)(4). Stipulation for Discipline. One-year
suspension.
Effective Date of Order: February 13, 2017
AMENDED ORDER ACCEPTING STIPULATION FOR DISCIPLINE
Upon consideration by the court.
The court accepts the Stipulation for Discipline. The accused is suspended from the
practice of law in the State of Oregon for a period of one-year, effective 10-days from the date
of this order.
/s/ Thomas A. Balmer
02/03/2017 10:06 AM
Thomas A. Balmer
Chief Justice, Supreme Court
STIPULATION FOR DISCIPLINE
Anthony A. Allen, attorney at law (“Allen”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Allen, 31 DB Rptr 2 (2017)
3
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Allen was admitted by the Oregon Supreme Court to the practice of law in Oregon on
April 14, 1989, and has been a member of the Bar continuously since that time, having his
office and place of business in Topanga, California.
3.
Allen enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On March 31, 2016, a Formal Complaint was filed against Allen pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violation of
RPC 3.4(b), RPC 5.5(a), RPC 8.1(a)(1), RPC 8.4(a)(2), and RPC 8.4(a)(4) of the Oregon Rules
of Professional Conduct. The parties intend that this Stipulation for Discipline set forth all
relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding.
Facts
5.
Allen resides and works in California but has never been admitted to the California
State Bar, and, at all relevant times herein, was not licensed or authorized to practice law in
the state of California, nor did he advertise or otherwise hold himself out as a practicing
attorney in that state.
6.
At all relevant times herein, California Business and Professions Code § 6126(a)
(Unauthorized practice of law) provided in relevant part:
Any person advertising or holding himself or herself out as practicing or entitled
to practice law or otherwise practicing law who is not an active member of the
State Bar, or otherwise authorized pursuant to statute or court rule to practice
law in this state at the time of doing so, is guilty of a misdemeanor punishable
by up to one year in a county jail or by a fine of up to one thousand dollars
($1,000), or by both that fine and imprisonment.
Cite as In re Allen, 31 DB Rptr 2 (2017)
4
7.
In approximately 2012, Paul Fassnacht (“Fassnacht”) filed a claim in California against
his former employer, Green Vista Partners, LLC (“GVP”) for unpaid wages. The California
Labor Board concluded that GVP owed Fassnacht over $9,500.
8.
In or around February 2013, GVP sued Fassnacht for defamation and trespass, and
sought $300,000 in damages.
9.
Shortly before his answer to GVP’s complaint was due, Lance Roberts (“Roberts”), a
friend of Fassnacht, referred him to Allen to assist with Fassnacht’s legal matter. Allen told
Fassnacht that he was not licensed to practice law in California, but accepted payment totaling
approximately $2,300 from Fassnacht in return for providing legal advice and assistance to
Fassnacht in the GVP litigation.
10.
Allen agreed to apply his legal knowledge to Fassnacht’s case by ghostwriting plead-
ings, and counseling and coaching Fassnacht before court appearances. Allen told Fassnacht
that Fassnacht would need to appear pro per in the GVP litigation. Pursuant to their agreement,
Allen drafted an answer and a cross-complaint, which Fassnacht signed and filed in April 2013.
11.
GVP moved against Fassnacht’s answer and cross-complaint, and served discovery
requests and interrogatories on Fassnacht. Allen agreed to prepare discovery responses and a
memorandum opposing GVP’s motion for Fassnacht to sign and file pro per. Allen also
coached Fassnacht on what to say at the motion hearing.
12.
Allen admits that his conduct as described in paragraphs 5-11 constituted the practice
of law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction,
and the commission of a criminal act reflecting adversely on his honesty, trustworthiness or
fitness as a lawyer, in violation of the following standards of professional conduct established
by law and the Bar:
A. RPC 5.5(a); and
B. RPC 8.4(a)(2) of the Oregon Rules of Professional Conduct.
13.
Fassnacht reported Allen’s conduct to the Bar. On or about June 15, 2015, while Disci-
plinary Counsel’s Office (“DCO”) was investigating Fassnacht’s complaint against Allen,
Cite as In re Allen, 31 DB Rptr 2 (2017)
5
Allen asked Roberts to convey an offer to Fassnacht in which Allen offered to pay Fassnacht
$1,000 in exchange for Fassnacht’s facilitation of the dismissal of the Bar complaint against
Allen. Allen proposed that he would author a letter for Fassnacht to sign in which Fassnacht
would tell the Bar he wanted to withdraw his complaints against Allen. Once Fassnacht signed
the letter, Allen would place the money in an account with a third party, to be held pending
resolution of the Bar complaints.
14.
Allen made his offer to pay Fassnacht contingent on Fassnacht obtaining a dismissal of
the Bar complaint; Fassnacht would only receive the money if the Bar complaint was
dismissed. Allen further specified the funds would be returned to Allen if the complaint was
not dismissed.
15.
Allen admits that his conduct as described in paragraphs 13-14 constituted offering to
pay a witness contingent upon the content of testimony or outcome of a case; and conduct
prejudicial to the administration of justice, in violation of the following standards of pro-
fessional conduct established by law and the Bar:
A. RPC 3.4(b); and
B. RPC 8.4(a)(4) of the Oregon Rules of Professional Conduct.
Violations
16.
Upon further factual inquiry, the parties agree that the charge of alleged violation of
RPC 8.1(a)(1) should be and, upon the approval of this stipulation, is dismissed with prejudice.
Sanction
17.
Allen and the Bar agree that in fashioning an appropriate sanction in this case, the
Supreme Court should consider the ABA Standards for Imposing Lawyer Sanctions (“Stan-
ards”). The Standards require that Allen’s conduct be analyzed by considering the following
factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential
injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duties Violated. Allen violated his duties to the public and the profession when
he practiced without a license in California (which also constituted a misde-
meanor under California law). Standards §§ 5.0, 7.0. Allen also violated his
duties to the legal system regarding engaging in conduct prejudicial to the
administration of justice and in offering an improper inducement to a witness.
Standards § 6.3.
Cite as In re Allen, 31 DB Rptr 2 (2017)
6
b. Mental State. The Standards recognize three types of mental state: Intent is the
conscious objective or purpose to accomplish a particular result. Knowledge is
the conscious awareness of the nature or attendant circumstances of the conduct
but without the conscious objective or purpose to accomplish a particular result.
Negligence is the failure of a lawyer to heed a substantial risk that circum-
stances exist or that a result will follow, which failure is a deviation from the
standard of care that a reasonable lawyer would exercise in the situation. Stan-
dards at 9.
Allen acted knowingly with regard to all of his actions. He knew he was
providing legal advice to Fassnacht, and he knew he was not licensed in
California.
Further, when Allen tried to induce Fassnacht to drop his complaints, Allen’s
conduct was knowing, insofar as he made statements and written communica-
tions to Fassnacht urging him to get the complaint dismissed, and making the
payment contingent on him actually getting the complaint dismissed.
c. Injury. Both actual and potential injury are relevant to determining the sanction
in a disciplinary case. In re Williams, 312 Or 530 (1992). “Potential injury” is
the reasonably foreseeable harm to a client at the time of the lawyer’s mis-
conduct, and which, but for some intervening factor or event, would probably
have resulted from the lawyer’s misconduct. “Injury” is harm to a client which
results from a lawyer’s misconduct. Standards at 9.
Allen’s misconduct caused actual and potential harm to the public and the pro-
fession by charging for and providing legal services when he was not licensed
to do so.
Allen’s actions also caused potential injury to the Bar and the profession’s
ability to regulate itself if he had been able to successfully convince Fassnacht
to withdraw his complaint and no longer participate with the Bar’s investiga-
tion.
d. Aggravating and Mitigating Circumstances. All of the following factors
which are recognized as aggravating under the Standards exist in this case:
1. A selfish motive. Standards § 9.22(b). Allen’s attempts to interfere with
Fassnacht’s continued pursuit of his complaint were selfishly motivated.
2. Multiple offenses. Standards § 9.22(d). Allen is charged with multiple
offenses, resulting from multiple actions.
3. Substantial experience in the practice of law. Standards § 9.22(i). Prior
to moving to California, Allen practiced law in Oregon for approxi-
mately 8 years.
Cite as In re Allen, 31 DB Rptr 2 (2017)
7
In mitigation, Allen has demonstrated the following:
1. Absence of a prior record of discipline. Standards § 9.32(a).
18.
Under the ABA Standards, a suspension is generally appropriate when a lawyer
engages in communication with an individual in the legal system when the lawyer knows that
such communication is improper, and causes interference or potential interference with the
outcome of the legal proceeding. Standards § 6.32. A suspension is generally appropriate when
a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional,
and causes potential injury to a client, the public, or the legal system. Standards § 7.2.
In light of Allen’s collective misconduct, together with his aggravation, a suspension
is appropriate.
19.
Oregon cases support a suspension of a year or more for similar collective misconduct.
Substantial suspensions are warranted where a lawyer’s misconduct includes practicing while
suspended. See, e.g., In re Koliha, 330 Or 402 (2000) (attorney suspended for one year for
violations of RPC 8.4(a)(3) (former DR 1-102(A)(3)), RPC 8.4(a)(4) (former DR 1-102(A)(4)),
RPC 8.1(a) (former DR 1-103(C)), RPC 5.5(a) (former DR 3-101(B)), and ORS 9.160, where
attorney engaged in unauthorized practice of law while suspended for failure to pay bar dues
and subsequently failed to cooperate with Bar investigation); In re Kluge, 332 Or 251 (2001)
(lawyer suspended for three years where, contrary to statute and Bar bylaw, attorney engaged
in the private practice of law in Oregon without professional liability insurance coverage). See
also, In re Boly, 27 DB Rptr 136 (2013) (lawyer suspended for one year by trial panel where,
as an inactive lawyer, he provided substantial legal advice and assistance to a plaintiff who
relied heavily upon that advice and assistance in two different legal matters); In re Hill, 25 DB
Rptr 260 (2011) (attorney received 8-month suspension for, while inactive, filing pleadings
and engaging in negotiations in guardianship proceeding on behalf of a client, in violation of
RPC 3.4(c), 3.5(d), RPC 4.2, RPC 5.5(a), RPC 8.4(a)(4) and ORS 9.160).
20.
Consistent with the Standards and Oregon case law, the parties agree that Allen shall
be suspended for one year for violation of RPC 3.4(b), RPC 5.5(a), RPC 8.4(a)(2), and RPC
8.4(a)(4) of the Oregon Rules of Professional Conduct, the sanction to be effective February
1, 2017, or 10 days after approval of this Stipulation for Discipline, whichever is later.
21.
Allen acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
Cite as In re Allen, 31 DB Rptr 2 (2017)
8
prejudice to his clients during the term of his suspension. In this regard, Allen represents that
he does not maintain a law practice in Oregon and has no clients.
22.
Allen acknowledges that reinstatement is not automatic on expiration of the period of
suspension. He is required to comply with the applicable provisions of Title 8 of the Bar Rules
of Procedure. Allen also acknowledges that he cannot hold himself out as an active member of
the Bar or provide legal services or advice until he is notified that his license to practice has
been reinstated.
23.
Allen acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4, and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Allen to attend or obtain continuing legal education
(CLE) credit hours.
24.
Allen represents that he is not admitted to practice law in any jurisdiction other than
Oregon. Upon that representation, the Bar will not notify any other jurisdiction of Allen’s
discipline.
25.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Supreme Court for consideration pursuant to the terms of BR 3.6.
EXECUTED this 3rd day of January, 2017.
/s/ Anthony A. Allen
Anthony A. Allen
OSB No. 890163
EXECUTED this 9th day of January, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett
OSB No. 970688
Assistant Disciplinary Counsel
Cite as In re Vandergaw, 31 DB Rptr 9 (2017)
9
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-169
)
ANDREW L. VANDERGAW, )
)
Accused. )
Counsel for the Bar: Susan R. Cournoyer
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 1.6(a). Stipulation for discipline.
Public Reprimand.
Effective Date of Order: February 13, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Andrew L. Vandergaw and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Andrew L. Vandergaw is publicly reprimanded for violation of RPC 1.6(a).
DATED this 13th day of February, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ John E. Davis
John E. Davis, Region 3
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Andrew L. Vandergaw, attorney at law (Vandergaw), and the Oregon State Bar (Bar)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Vandergaw, 31 DB Rptr 9 (2017)
10
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Vandergaw was admitted by the Oregon Supreme Court to the practice of law in
Oregon on July 15, 1988, and has been a member of the Bar continuously since that time,
having his office and place of business in Jackson County, Oregon.
3.
Vandergaw enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On December 3, 2016, the State Professional Responsibility Board (SPRB) authorized
formal disciplinary proceedings against Vandergaw for alleged violation of RPC 1.6(a)
[revealing information relating to the representation of a client] of the Oregon Rules of
Professional Conduct. The parties intend that this stipulation set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
Vandergaw represented a client (Rockwell) on criminal charges pending in Jackson
County. Rockwell’s release agreement required him to maintain contact with his attorney at all
times. Between April 2014 and August 2015, Rockwell failed to appear at several status
hearings and to maintain contact with Vandergaw.
Vandergaw appeared for an August 2015 status hearing in the matter. When the judge
called Rockwell’s case, Vandergaw was surprised to discover that Rockwell was also present.
The judge asked Vandergaw whether Rockwell was his client; Vandergaw responded,
“Allegedly he is my client. I haven’t heard from him.”
Rockwell’s failure to maintain contact with Vandergaw was information relating to the
representation of a client.
The judge had Rockwell arrested for violating his release agreement. Rockwell was
released that same date on his own recognizance.
Cite as In re Vandergaw, 31 DB Rptr 9 (2017)
11
Violations
6.
Vandergaw admits that, by disclosing in court that Rockwell had not kept in contact
with him, he revealed information relating to the representation of a client, in violation of RPC
1.6(a).
Sanction
7.
Vandergaw and the Bar agree that in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Vandergaw’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Vandergaw violated his duty to preserve client confidences.
b. Mental State. Vandergaw acted negligently and spontaneously when he told
the court that Rockwell had not been in contact with him. Because Rockwell
was in court for the status-check hearing, Vandergaw did not anticipate that his
spontaneous utterance would be detrimental to Rockwell. “Negligence” is the
failure to heed a substantial risk that circumstances exist or that a result will
follow, which failure deviates from the standard of care that a reasonable lawyer
would exercise in the situation.
c. Injury. Vandergaw’s statement to the court led to Rockwell’s arrest for viola-
tion of his release agreement.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Prior discipline. Standards § 9.22(a). Vandergaw was admonished in
2006 for revealing in court confidential information that was
detrimental to his client. While letters of admonition are generally not
considered discipline, they may be viewed as an aggravating factor
when they involve similar misconduct. In re Cohen, 330 Or 489, 500–
01, 8 P3d 953 (2000).
2. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards § 9.32(b).
2. Full and free disclosure. Standards § 9.32(e).
Cite as In re Vandergaw, 31 DB Rptr 9 (2017)
12
Under the ABA Standards, public reprimand is generally appropriate when a lawyer
negligently reveals information relating to the representation of a client and the disclosure
causes injury or potential injury. Standards § 4.23.
8.
Cases involving disclosures of client confidences have resulted in public reprimands.
See, e.g., In re Langford, 19 DB Rptr 211 (2005) (in her motion to withdraw from representing
a client, attorney disclosed confidential client communications and her own judgments as to
the client’s honesty and the merits of the case).
9.
Consistent with the Standards and Oregon case law, the parties agree that Vandergaw
shall be reprimanded for violation of RPC 1.6(a), the sanction to be effective upon Disciplinary
Board approval of this Stipulation.
10.
Vandergaw acknowledges that he is subject to the Ethics School requirement set forth
in BR 6.4 and that a failure to complete the requirement timely under that rule may result in
his suspension.
11.
Vandergaw represents that, in addition to Oregon, he also is admitted to practice law
in the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Vandergaw is admitted: none.
12.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Vandergaw, 31 DB Rptr 9 (2017)
13
EXECUTED this 2nd day of February, 2017.
/s/ Andrew L. Vandergaw
Andrew L. Vandergaw
OSB No. 881420
EXECUTED this 7th day of February, 2017.
OREGON STATE BAR
By: /s/ Susan R. Cournoyer
Susan R. Cournoyer
OSB No. 863381
Assistant Disciplinary Counsel
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
14
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-144
)
ANGELA T. LEE-MANDLIN, )
)
Accused. )
Counsel for the Bar: Susan R. Cournoyer
Counsel for the Accused: Nathan Gabriel Steele
Disciplinary Board: None.
Disposition: Violation of RPC 3.5(b) and RPC 8.4(a)(4). Stipulation
for Discipline. Public Reprimand.
Effective Date of Order: February 24, 2017
ODER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Angela T. Lee-Mandlin and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Angela T. Lee-Mandlin is publicly reprimanded for violation of Oregon Rules of Professional
Conduct (RPC) 3.5(b) and RPC 8.4(a)(4).
DATED this 24th day of February, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Jennifer Kimble
Jennifer Kimble, Region 1
Disciplinary Board Chairperson
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
15
STIPULATION FOR DISCIPLINE
Angela T. Lee-Mandlin, attorney at law (“Lee-Mandlin”), and the Oregon State Bar
(“Bar”) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Lee-Mandlin was admitted by the Oregon Supreme Court to the practice of law in
Oregon on September 19, 1997, and has been a member of the Bar continuously since that
time, having her office and place of business in Deschutes County, Oregon.
3.
Lee-Mandlin enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On October 22, 2016, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Lee-Mandlin for alleged violations of RPC 3.5(b) and
RPC 8.4(a)(4) of the Oregon Rules of Professional Conduct. The parties intend that this
stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final
disposition of this proceeding.
Facts
5.
Lee-Mandlin represented the respondent (“Father”) in a postjudgment dispute over
parenting time and other terms of a marital dissolution judgment. The petitioner (“Mother”)
was represented by attorney Ronald M. Johnson (“Johnson”).
At the conclusion of an April 2014 show cause hearing on whether the judgment should
be modified, Lee-Mandlin agreed to prepare the appropriate judgment reflecting the parties’
stipulations and the court’s ruling. Lee-Mandlin prepared an Order After Hearing (“the order”)
and asked her staff to fax and mail a copy to Johnson; her paralegal told her that she had done
so. However, unbeknownst to Lee-Mandlin, the paralegal did not fax or mail a copy of the
order to Johnson.
After hearing no objection from Johnson for several weeks, and not realizing that
Johnson had not previously received a copy of the proposed form of order, Lee-Mandlin filed
the order with the court on May 19, 2014. By doing so, Lee-Mandlin violated UTCR 5.100
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
16
(requiring that any proposed judgment or proposed order submitted in response to a ruling of
the court first be served on opposing counsel at least three days prior to submission to the
court).
Furthermore, Lee-Mandlin inadvertently did not serve a copy of the order on Johnson
when she filed it with the court. Her certificate of service stated only that she served a copy on
“the Respondent” (her own client).
The court signed the order on May 22, 2014. However, two weeks later, the court
instructed Lee-Mandlin to re-submit it as a “Supplemental Judgment with Money Award.” On
July 3, 2014, Lee-Mandlin served Johnson with her proposed Supplemental Judgment
(“proposed judgment”), which mirrored the language of the order. Lee-Mandlin advised
Johnson that, if he did not object by July 9, 2014, she would submit the proposed judgment to
the court as drafted. On July 9, 2014, Johnson emailed Lee-Mandlin a letter stating his
objections (“July 9 letter”).
Although Lee-Mandlin received the July 9 letter, she failed to notice that it referred to
the proposed judgment and instead mistakenly understood that it set out Johnson’s objections
to the order. She waited for Johnson to convey separate objections to the proposed judgment
and, when she did not receive any, she prepared to submit the proposed judgment to the court
on July 30, 2014. When Lee-Mandlin’s staff printed a copy of the July 9 letter in preparation
to submit the proposed judgment, the computer program “auto-filled” the current date (July
29, 2014) on the letter. In reliance on this printed document, Lee-Mandlin incorrectly deter-
mined that Johnson had not objected to the form of judgment until July 29, 2014. In her cover
letter to the court, Lee-Mandlin stated inaccurately that Johnson had not timely objected to the
form of judgment.
Mother, who was no longer represented by Johnson, informed the court that the order
had improperly been filed ex parte and that Lee-Mandlin’s representation that Johnson had not
timely objected to the proposed judgment was incorrect. Lee-Mandlin recognized her error and
advised the court that Johnson had in fact timely served his objections to the proposed
judgment. Although the court did not sign the proposed judgment, the order (which contained
the same provisions and which had been inappropriately submitted to the court) remained in
place until the court set it aside in January 2015 as a result of Mother’s motion for relief.
Violations
6.
Lee-Mandlin admits that, by filing the order without serving a copy on Johnson, she
engaged in unauthorized ex parte communication on the merits of the matter in violation of
RPC 3.5(b); and, by failing to comply with UTCR 5.100, filing the order ex parte, and
misinforming the court that Johnson had not timely objected to the proposed judgment when
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
17
he had done so, she engaged in conduct prejudicial to the administration of justice in violation
of RPC 8.4(a)(4).
Sanction
7.
Lee-Mandlin and the Bar agree that in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Lee-Mandlin’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Lee-Mandlin violated her duty to abide by procedural and sub-
stantive rules that affect the administration of justice.
b. Mental State. Lee-Mandlin acted with negligence in failing to ascertain that
she had not complied with UTCR 5.100 before submitting the order to the court,
that she submitted the order to the court ex parte, and that her statement to the
court that Johnson had not timely conveyed Mother’s objections to the
supplemental judgment was inaccurate. “Negligence” is the failure to heed a
substantial risk that circumstances exist or that a result will follow, which
failure is a deviation from the standard of care that a reasonable lawyer would
exercise in the situation.
c. Injury. Lee-Mandlin’s conduct resulted in actual harm to Mother, who incurred
additional legal fees in moving for relief from the order, and to the court, which
was required to expend resources on a December 2014 hearing and to even-
tually set aside the order.
d. Aggravating Circumstances. The sole aggravating circumstance is:
1. Multiple offenses. Standards § 9.22(d).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of prior discipline. Standards § 9.32(a);
2. Absence of a dishonest or selfish motive. Standards § 9.32(b);
3. Full and free disclosure Standards § 9.32(e); and
4. Remorse. Standards § 9.32(l).
Under the ABA Standards, public “[r]eprimand is generally appropriate when a lawyer
negligently fails to comply with a court order or rule, and causes injury or potential injury to a
client or other party, or causes interference or potential interference with a legal proceeding.”
Standards § 6.23.
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
18
8.
Public reprimand is consistent with prior Oregon cases in which RPC 3.5(a) and RPC
8.4(a)(4) have been implicated under similar circumstances. See, e.g., In re Jaspers, 28 DB
Rptr 211 (2014) (attorney reprimanded where, in filing an ex parte emergency custody order,
he failed to disclose material information about the current custody judgment or the circum-
stances of the parties, necessary for the court’s assessment of the motion); In re Bean, 20 DB
Rptr 157 (2006) (attorney reprimanded for presenting an ex parte custody order to a judge
without disclosing to the court that the pro se opposing party was in the hallway waiting to be
heard).
9.
Consistent with the Standards and Oregon case law, the parties agree that Lee-Mandlin
shall be publically reprimanded for violation of RPC 3.5(b) and RPC 8.4(a)(4), the sanction to
be effective upon the Disciplinary Board’s approval of this stipulation for discipline.
10.
Lee-Mandlin acknowledges that she is subject to the Ethics School requirement set
forth in BR 6.4 and that a failure to complete the requirement timely under that rule may result
in her suspension.
11.
Lee-Mandlin represents that she is not admitted to practice law in any other state
jurisdictions, whether active, inactive, or suspended.
12.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Lee-Mandlin, 31 DB Rptr 14 (2017)
19
EXECUTED this 2nd day of February, 2017.
/s/ Angela T. Lee-Mandlin
Angela T. Lee-Mandlin,
OSB No. 974598
APPROVED AS TO FORM AND CONTENT:
EXECUTED this 3rd day of February, 2017.
/s/ Nathan G. Steele
Nathan G. Steele, OSB No. 004386
EXECUTED this 7th day of February, 2017.
OREGON STATE BAR
By: /s/ Susan R. Cournoyer
Susan R. Cournoyer, OSB No. 863381
Assistant Disciplinary Counsel
Cite as In re Friesen, 31 DB Rptr 20 (2017)
20
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 15-114
)
TYLER FRIESEN, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC
1.16(d), and RPC 8.1(a)(2). Stipulation for Discipline.
6-month suspension.
Effective Date of Order: March 9, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by Tyler
Friesen and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Tyler Friesen is suspended for six months, effective ten days after approval by the Disciplinary
Board, for violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.16(d), and RPC 8.1(a)(2).
DATED this 27
th
day of February, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Jennifer Kimble
Jennifer Kimble, Region 1
Disciplinary Board Chairperson
Cite as In re Friesen, 31 DB Rptr 20 (2017)
21
STIPULATION FOR DISCIPLINE
Tyler Friesen, attorney at law (“Friesen”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Friesen was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 22, 2005, and has been a member of the Bar continuously since that time, having
his office and place of business in Deschutes County, Oregon.
3.
Friesen enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On June 20, 2016, a Formal Complaint was filed against Friesen pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.16(d), and RPC 8.1(a)(2). The parties intend that this
Stipulation for Discipline set forth all relevant facts, violations and the agreed-upon sanction
as a final disposition of the proceeding.
Facts
5.
In September 2014, Mikala Saccoman, Ph.D. (“Saccoman”) retained Friesen to begin
the process of drafting a will. Between September 2014 and January 2015, Saccoman made
many requests for information and updates regarding the status of Friesen’s drafting of the will
to which Friesen did not respond. As of January 2015, Friesen had not completed the will.
6.
In June of 2015, Saccoman made multiple attempts to contact Friesen by both email
and telephone, requesting updates. Friesen did not respond.
7.
Also in June of 2015, Friesen closed his law practice. Prior to closing his practice, he
did not notify Saccoman that he intended to close his practice, nor did he assist her in finding
replacement counsel, or return her client file or any unearned portion of her retainer.
Cite as In re Friesen, 31 DB Rptr 20 (2017)
22
8.
On July 1, 2015, Saccoman wrote a letter to Friesen requesting that he respond to her
contact attempts by July 15, 2015. Saccoman also requested that Friesen complete the will by
August 31, 2015, or provide a full refund. Friesen did not respond, did not notify Saccoman
that he had closed his practice, and did not return her file or refund her retainer.
9.
Friesen eventually provided a refund to Saccoman nearly a year after he was initially
retained, and after he was made aware that the Bar was investigating the complaint Saccoman
had filed.
10.
In August 2015, after Saccoman complained to the Bar about Friesen’s conduct, the
Bar’s Client Assistance Office (“CAO”) contacted Friesen regarding Saccoman’s complaint.
Friesen acknowledged Saccoman’s complaint, and corresponded with CAO using his email
address then on file with the Bar (“record email address”).
11.
In October of 2015, Disciplinary Counsel’s Office (“DCO”) sent two letters of inquiry
to Friesen, the first to both his record email address and his address then on record with the
Bar (“record address”) by first-class mail, and the second to his record address via first-class
and certified mail. Neither the letters nor the email were returned as undelivered or
undeliverable. Friesen did not respond to them.
Violations
12.
Friesen admits that, by neglecting Saccoman’s legal matter, failing to keep Saccoman
reasonably informed about the status of her matter, failing to sufficiently communicate with
Saccoman so she could make informed decisions regarding the representation, and failing to
timely return Saccoman’s property at the termination of the representation, he violated RPC
1.3, RPC 1.4(a), RPC 1.4(b), and RPC 1.16(d).
13.
Friesen further admits that his failure to respond to DCO in its investigation of
Saccoman’s complaint constituted a knowing failure to respond to a lawful demand from a
disciplinary authority, in violation of RPC 8.1(a)(2).
Cite as In re Friesen, 31 DB Rptr 20 (2017)
23
Sanction
14.
Friesen and the Bar agree that, in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Friesen’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances. Standards
§ 3.0. In determining the appropriate sanction, the court also examines the conduct of the
accused attorney in light of the court’s prior case law. In re Garvey, 325 Or 34, 42, 932 P2d
549 (1997).
a. Duty Violated. The most important ethical duties a lawyer owes are to his
client. Standards at 5. Friesen violated his duty to his client to diligently attend
to her matter, which duty includes the obligation to timely and effectively
communicate with her. Standards § 4.4. Friesen likewise violated his duty to
Saccoman when he failed to promptly return her property. Standards § 4.1.
Friesen violated his duties to the profession to cooperate with disciplinary
authorities and to properly withdraw from Saccoman’s representation. Stan-
dards § 7.0.
b. Mental State. The Standards recognize three possible mental states: negligent;
knowing; and intentional. Standards at 9. Friesen acted negligently when he
neglected Saccoman’s matter and failed to communicate with her or inform her
that he was closing his legal office; that is, he failed to heed a substantial risk
that circumstances existed or that a result would follow, which failure was a
deviation from the standard of care that a reasonable lawyer would exercise in
the situation. Id. Friesen acted at times negligently and knowingly when he
failed to promptly return Saccoman’s file and funds because, even if he did not
realize she was trying to contact him, he still held her money in trust and should
have known that he was obliged to return it upon closing his office. A knowing
mental state is the conscious awareness of the nature or attendant circumstances
of the conduct but without the conscious objective or purpose to accomplish a
particular result. Finally, Friesen’s failure to respond to the Bar was knowing,
in that he was aware of Saccoman’s pending complaint when he ceased com-
municating with the Bar.
c. Injury. Both actual and potential injury are relevant to determining the sanction
in a disciplinary case. Standards § 3.0; In re Williams, 314 Or 530, 547, 840
P2d 1280 (1992). Friesen caused actual and potential harm to hi
s client when
he neglected Saccoman’s matter, failed to timely return her file and her funds,
and did not provide her updates on her case. See In re Cohen, 330 Or 489, 496,
Cite as In re Friesen, 31 DB Rptr 20 (2017)
24
8 P3d 953 (2000) (client anxiety and frustration as a result of attorney neglect
can constitute actual injury under the Standards); In re Schaffner, 325 Or 421,
426–27, 939 P2d 39 (1997). His failure to cooperate with the DCO’s
investigation of his conduct also caused actual harm to both the legal profession
and the public because he delayed the Bar’s investigation and, consequently,
the resolution of the complaint against him. In re Schaffner, 325 Or at 427; In
re Miles, 324 Or 218, 222, 923 P2d 1219 (1996); In re Haws, 310 Or 741, 753–
54, 801 P2d 818 (1990).
d. Aggravating Circumstances. Aggravating circumstances include:
1. Friesen engaged in a pattern of misconduct, including avoidance of
inquiries from first his client, and later the Bar. Standards § 9.22(c).
2. Multiple offenses. Standards § 9.22(d).
3. Substantial experience in the practice of law (ten years at the time of the
misconduct). Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
3. Friesen reported remorse for his actions. Standards § 9.32(l).
15.
Under the ABA Standards, suspension is generally appropriate when a lawyer
knowingly fails to perform services for a client and causes injury or potential injury to a client.
Standards § 4.42(a). Suspension is also generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional, and causes injury or
potential injury to a client, the public, or the legal system. Standards § 7.2. Further, where a
suspension is appropriate, it should be for a period of time equal to or greater than six months.
Standards § 2.3.
Friesen’s aggravating and mitigating factors are in equipoise, and therefore do not alter
the presumptive sanction under the Standards. As a result, a period of suspension is the
appropriate sanction. Standards §§ 4.42, 7.0.
16.
Oregon cases also support the imposition of a suspension for neglect in action or com-
munication, with or without a failure to respond to the Bar. Friesen’s neglect of his client’s
matter and failure to communicate with his client warrant at least a short suspension. See, e.g.,
In re Murphy, 349 Or 366, 245 P3d 100 (2010) (per curiam) (120-day suspension); In re
Redden, 342 Or 393, 153 P3d 113 (2007) (60-day suspension for attorney’s failure to complete
Cite as In re Friesen, 31 DB Rptr 20 (2017)
25
a child support arrearage matter for a client for nearly two years); In re Jackson, 347 Or 426,
223 P3d 387 (2009) (120-day suspension where attorney was not prepared for a settlement
conference he had requested, failed to send his calendar of available dates to an arbitrator,
failed to respond to messages from the arbitrator’s office and failed to take steps to pursue the
arbitration after a second referral to arbitration by the court); and In re Koch, 345 Or 444, 198
P3d 910 (2008) (attorney suspended for 120 days when she failed to advise her client that
another lawyer would prepare a qualified domestic relations order for the client and thereafter
failed to communicate with the client and that second lawyer when they needed information
and assistance from attorney to complete the legal matter).
Where a lawyer failed to properly withdraw, in violation of RPC 1.16(d), the Court has
imposed a 60-day suspension. In re Castanza, 350 Or 293, 253 P3d 1057 (2011). See also In
re Devers, 317 Or 261, 855 P2d 617 (1993) (six-month suspension imposed on lawyer who,
among other things, neglected cases and failed to return client files upon termination of the
representation).
Finally, the court has repeatedly held that the “failure to cooperate with a disciplinary
investigation, standing alone, is a serious ethical violation.” In re Parker, 330 Or 541, 551, 9
P3d 107 (2000); In re Bourcier, 325 Or 429, 434, 939 P2d 604 (1997). Further, the court has
emphasized that it has no patience for violations of this rule, and it has consistently imposed a
60-day suspension for a single violation of RPC 8.1(a)(2). See, e.g., In re Miles, 324 Or 218,
923 P2d 1219 (1996) (although no substantive charges were brought, attorney was suspended
for 120 days for noncooperation with the Bar in two separate matters); In re Schaffner, 323 Or
472, 918 P2d 803 (1996) (attorney with no prior disciplinary history suspended for 120 days:
60 days for his neglect and 60 days for his failure to cooperate with the Bar).
17.
Consistent with the Standards and Oregon case law, the parties agree that Friesen shall
be suspended for six months for his violations of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC
1.16(d), and RPC 8.1(a)(2), with the sanction to be effective February 15, 2017, or 10 days
after this stipulation for discipline is approved by the Disciplinary Board, whichever is later.
The parties further agree that Friesen will be required to apply for reinstatement under BR 8.1
(“Formal Reinstatement”), which requires action by the Board of Governors and the Supreme
Court.
18.
Friesen acknowledges that he has certain duties and responsibil
ities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Friesen represents that
he has no client files, active or inactive, in his possession.
Cite as In re Friesen, 31 DB Rptr 20 (2017)
26
19.
Friesen understands that reinstatement is not automatic upon the expiration of the
period of suspension and that he cannot resume the practice of law until he has taken all steps
necessary to re-attain active membership status with the Bar. Friesen further understands he is
subject to the formal reinstatement requirements under BR 8.1. During the period of suspen-
sion, and continuing through the date upon which Friesen re-attains his active membership
status with the Bar, Friesen shall not practice law or represent that he is qualified to practice
law; shall not hold himself out as a lawyer; and shall not charge or collect fees for the delivery
of legal services other than for work performed and completed prior to the period of suspen-
sion.
20.
Friesen acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in the
denial of his reinstatement. This requirement is in addition to any other provision of this
agreement that requires Friesen to attend or obtain continuing legal education (CLE) credit
hours.
21.
Friesen represents that, apart from Oregon, he is not admitted to practice law in any
other jurisdictions (whether his current status is active, inactive, or suspended).
22.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 14th day of February, 2017.
/s/ Tyler Friesen
Tyler Friesen, OSB No. 052569
EXECUTED this 21st day of February, 2017.
OREGON STATE BAR
By: /s/ Angela W Bennett
Angela W. Bennett
OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Roller (I), 31 DB Rptr 27 (2017)
27
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. OSB 14-06, OSB 14-142;
) OSB 14-143; OSB 15-37
DALE MAXIMILIANO ROLLER, )
) SC S064359
Accused. )
En Banc
On review of the decision of a trial panel of the Disciplinary Board.
Submitted January 12, 2017.
No appearance for the Oregon State Bar.
No appearance contra.
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon State Bar charged Dale Maximiliano
Roller (the accused) with multiple violations of the Oregon Rules of Professional Conduct
(RPC). A trial panel of the Disciplinary Board conducted a hearing, found that the accused had
violated a number of those rules, and determined that the appropriate sanction was suspension
from the bar for a period of four years. We affirm.
Cite as In re Morgan, 31 DB Rptr 28 (2017)
28
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-166
)
LYNNE B. MORGAN, )
)
Accused. )
Counsel for the Bar: Susan Roedl Cournoyer
Counsel for the Accused: Lawrence Matasar
Disciplinary Board: None.
Disposition: Violation of RPC 1.15-1(a); RPC 1.15-1(c) and RPC
1.15-1(d). Stipulation for Discipline. Public reprimand.
Effective Date of Order: March 16, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Lynne B. Morgan and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Lynne B. Morgan is publicly reprimanded for violation of RPC 1.15-1(a), RPC 1.15-1(c) and
RPC 1.15-1(d).
DATED this 16th day of March, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald Atwood
Ronald Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Morgan, 31 DB Rptr 28 (2017)
29
STIPULATION FOR DISCIPLINE
Lynne B. Morgan, attorney at law (Morgan), and the Oregon State Bar (Bar) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Morgan was admitted by the Oregon Supreme Court to the practice of law in Oregon
on April 14, 1989, and has been a member of the Bar continuously since that time, having her
office and place of business in Multnomah County, Oregon.
3.
Morgan enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On December 3, 2016, the State Professional Responsibility Board (SPRB) authorized
formal disciplinary proceedings against Morgan for alleged violations of RPC 1.15-1(a)
[failing to keep client funds separate from lawyer’s own property], RPC 1.15-1(c) [failing to
maintain client funds paid in advance in trust until fees are earned or costs are incurred], and
RPC 1.15-1(d) [failing to promptly deliver and, upon request, failing to render an accounting
of, client funds] of the Rules of Professional Conduct. The parties intend that this stipulation
set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this
proceeding.
Facts
5.
A client [Client] retained Morgan to represent him on a criminal matter in which he
was eventually indicted on charges of racketeering, aggravated theft (16 counts) and the
unregistered sale of securities (16 counts). Over the next three years, Morgan and Client
entered into three fee agreements. Their first two retainer agreements (April 2010 and August
2011) provided that Morgan would deposit retainers into trust and bill against the funds at an
agreed hourly rate; Client agreed to pay all out-of-pocket expenses. As trial approached in the
criminal case, Morgan and Client signed a third fee agreement in October 2012, which
provided for a new $45,000 flat fee earned upon receipt. The agreement explained that the fee
would not be deposited into Morgan’s trust account and that, if Client discharged Morgan, he
Cite as In re Morgan, 31 DB Rptr 28 (2017)
30
would pay $300 per hour for the time she had expended on the matter. Client also agreed to
pay a $15,000 cost advance, which Morgan agreed to deposit into trust.
6.
Between October 2012 and May 2013, Client paid the $15,000 cost advance and
$40,000 toward the flat fee. Because Morgan still held $2,285 in trust from the second retainer,
the $15,000 cost advance brought the total funds Morgan held in trust for Client to $17,285.
7.
Client terminated the representation on May 29, 2013, after Morgan had taken sub-
stantial steps to complete the work, including participating in a judicial settlement conference
and preparing for trial that was scheduled to begin June 3, 2013.
8.
In July 2013, Morgan instructed her staff to transfer the full $17,285 from trust to her
general account. This transfer covered payments for incurred costs totaling $12,333.50 (for
paralegal services and investigator fees, expenditures about which she had previously informed
Client). At the time, Morgan believed that she had earned all of Client’s prior advance fees and
had incurred all of the costs advanced, and was therefore entitled to withdraw all funds
remaining in trust. However, Morgan had not balanced her trust account ledger or taken other
appropriate steps to determine that $4,951.50 of the funds in her trust account were the unspent
balance of Client’s $15,000 cost advance and that he was entitled to a refund of that amount.
9.
Almost two years later, in late May 2015, Client requested an accounting and return of
all funds. Morgan did not provide an accounting of the $15,000 cost advance or return the un-
incurred $4,951.50 balance that she had not spent on Client’s case costs until April 2016.
Morgan offered to refund, and eventually tendered to Client, the full $40,000 paid toward her
flat fee, even though at the time she was discharged she had substantially completed the work.
Violations
10.
Morgan admits that, by withdrawing from trust $4,951.50 of Client’s funds that had
not been incurred for expenses, she violated RPC 1.15-1(a) and RPC 1.15-1(c). Morgan further
admits that, by failing to promptly deliver funds Client was entitled to receive, and failing to
render a full accounting of client funds promptly upon request, she violated RPC 1.15-1(d).
Sanction
11.
Morgan and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
Cite as In re Morgan, 31 DB Rptr 28 (2017)
31
(“Standards”). The Standards require that Morgan’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. By failing to maintain client funds in trust, to promptly account
for those funds, or to promptly return funds her client was entitled to receive,
Morgan violated duties to preserve client property.
b. Mental State. With respect to her improper withdrawal of client funds from
trust, Morgan acted negligently, which is the failure to heed a substantial risk
that circumstances exist or that a result will follow, which failure deviates from
the standard of care a reasonable lawyer would exercise in the situation.
Standards at 9. In delaying to refund the $4,951.50 or to provide an accounting
upon Client’s request, Morgan acted knowingly, which is with the conscious
awareness of the nature or attendant circumstances of her conduct but without
the conscious objective or purpose to accomplish a particular result. Standards
at 9.
c. Injury. Morgan’s conduct resulted in actual injury to Client, who was denied
for almost three years $4,951.50 that he was entitled to receive upon termination
of the representation.
d. Aggravating Circumstances. There are two aggravating circumstances:
1. Substantial experience in the practice of law. Standards § 9.22(i).
However, although Morgan has practiced law for 24 years, she has little
experience in handling client funds, as her practice has involved almost
exclusively court-appointed criminal defense.
2. Multiple violations. Standards § 9.22(d).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Lack of prior discipline. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
3. Good reputation in the legal community. Standards § 9.32(g).
4. Remorse. Standards § 9.32(l).
12.
Under the ABA Standards, reprimand is generally appropriate “when a lawyer is
negligent in dealing with client property and causes injury or potential injury to a client.”
Standards § 4.13. When “a lawyer knows or should know that [she] is dealing improperly with
client property and causes injury or potential injury to a client,” suspension is generally
appropriate. Standards § 4.12.
Cite as In re Morgan, 31 DB Rptr 28 (2017)
32
13.
Negligent or knowing mishandling of client property has resulted in sanctions ranging
from public reprimand to 60-day suspensions.
In re Peterson, 348 Or 325, 232 P3d 940 (2010), resulted in a 60-day suspension when
clients gave their attorney a $2,000 advance, $1,000 of which was earmarked to pay their share
of a property survey. One day after depositing the check into his trust account, the attorney
withdrew the full $2,000. The court found as aggravating factors substantial experience (30
years in civil practice) and multiple violations; mitigating factors included lack of prior
discipline and good reputation.
In re Coran, 27 DB Rptr 170 (2013), resulted in a 30-day suspension, all stayed pending
a 24-month probation, when a lawyer failed to promptly return client property (the file) in one
matter and failed to deposit advance fees and costs into trust in another. Aggravating factors
included prior discipline: Coran had previously been reprimanded three times, once for
improperly handling an advance fee.
In re Cottle, 27 DB Rptr 22 (2013), resulted in a 30-day suspension when an attorney
failed to account for or return any unearned portions of advance fees and costs in two client
matters. Cottle charged one client for work he did not perform. Cottle also committed viol-
ations involving neglect, failing to communicate, and failing to respond to the Bar. Aggra-
vating factors included substantial experience in the practice of law; mitigating factors
included lack of prior discipline.
In re Fjelstad, 27 DB Rptr 68 (2013), resulted in a 30-day suspension when, in addition
to engaging in improper ex parte communication and failing to communicate with his client,
an attorney failed for over three years to deliver to his client the funds and checks that he had
received in settlement of his client’s claims. Aggravating factors included multiple offenses,
substantial experience, and selfish motive.
In re Kleen, 27 DB Rptr 213 (2013), resulted in a public reprimand when an attorney
collected advance costs to hire an expert in his client’s case, but never retained an expert. He
did not refund the advance for eight months after he withdrew from representation. Kleen also
engaged in neglect and failed to communicate with this client. Aggravating factors included
substantial experience; mitigating factors included lack of prior discipline.
The present case can be distinguished from each of these matters. Unlike Peterson,
Morgan’s substantial experience does not involve decades of handling client funds or manag-
ing a trust account; furthermore, she tendered a full refund of her $40,000 fee notwithstanding
having completed a substantial amount of the work before she was discharged. The attorneys
in Cottle, Fjelstad, and Kleen engaged in additional misconduct not present here. The prior
discipline present in Coran was significant.
Cite as In re Morgan, 31 DB Rptr 28 (2017)
33
14.
Consistent with the Standards and Oregon case law, the parties agree that Morgan shall
be publicly reprimanded for violation of RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d),
the sanction to be effective upon approval of this stipulation by the Disciplinary Board.
15.
Morgan acknowledges that she is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in her
suspension.
16.
Morgan represents that, in addition to Oregon, she also is admitted to practice law in
the jurisdictions listed in this paragraph, whether her current status is active, inactive, or
suspended, and she acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Morgan is admitted: none.
17.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 28th day of February, 2017.
/s/ Lynne B. Morgan
Lynne B. Morgan, OSB No. 890994
APPROVED AS TO FORM AND CONTENT:
Dated: March 2, 2017
/s/ Lawrence Matasar
Lawrence Matasar, OSB No. 742092
EXECUTED this 2nd day of March, 2017.
OREGON STATE BAR
By: /s/ Susan R. Cournoyer
Susan R. Cournoyer, OSB No. 863381
Assistant Disciplinary Counsel
Cite as In re Enright, 31 DB Rptr 34 (2017)
34
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-165
)
BRENDAN ENRIGHT, )
)
Accused. )
Counsel for the Bar: Susan Roedl Cournoyer
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-
1(c) and RPC 1.16(d). Stipulation for Discipline. 60-
day suspension.
Effective Date of Order: April 5, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Brendan Enright and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Brendan Enright is suspended for 60 days, effective immediately, for violation of RPC
1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.16(d).
DATED this 5th day of April, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald Atwood
Ronald Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Enright, 31 DB Rptr 34 (2017)
35
STIPULATION FOR DISCIPLINE
Brendan Enright, attorney at law (“Enright”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Enright was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 14, 1984, and has been a member of the Bar continuously since that time, having
his office and place of business in Multnomah County, Oregon.
3.
Enright enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On December 3, 2016, the State Professional Responsibility Board (“SPRB”) author-
ized formal disciplinary proceedings against Enright for alleged violations of RPC 1.5(c)(3)
[charging or collecting a fee denominated as earned on receipt without required disclosures in
fee agreement]; RPC 1.15-1(a) [failing to keep client funds in trust]; RPC 1.15-1(c) [failing to
maintain in trust until earned legal fees paid in advance]; and RPC 1.16(d) [upon termination
of representation, failing to refund unearned fees paid in advance]. The parties intend that this
stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final
disposition of this proceeding.
Facts
5.
In August 2013, a married couple (“Clients”) retained Enright to file a Chapter 7 bank-
ruptcy. Their fee agreement provided for a nonrefundable $1,636 flat fee (consisting of a
$1,195 fee plus costs), earned upon receipt.
6.
Pursuant to RPC 1.5(c)(3), a lawyer may not charge or collect a nonrefundable fee
earned on receipt unless the fee agreement explains that the funds will not be deposited into
the lawyer trust account and the client may discharge the lawyer at any time, in which event
the client may be entitled to a refund if the services for which the fee was paid are not
completed. Enright’s fee agreement did not contain these explanations.
Cite as In re Enright, 31 DB Rptr 34 (2017)
36
7.
Because Enright’s fee agreement did not comply with RPC 1.5(c)(3), he was required
to deposit and maintain in trust the advance fees he received from Clients until he earned the
fee or incurred the costs.
8.
Clients paid Enright a total of $1,338 in monthly installments until they ceased making
payments in early 2014. Enright closed his practice in November 2014 without completing the
bankruptcy petition, notifying Clients, or refunding any portion of Clients’ advance fee. At the
time Enright closed his practice, no portion of the advance fee paid by Clients remained in his
trust account.
9.
In June 2016, Clients applied for reimbursement from the Oregon State Bar Client
Security Fund. Upon receiving notice of their claim, Enright promptly refunded the full $1,338
directly to Clients.
Violations
10.
Enright admits that, by charging and collecting a nonrefundable fee earned upon receipt
without the required provisions in his fee agreement, he violated RPC 1.5(c)(3); by failing to
keep the advance fee separate from his own property and to maintain it in trust until he earned
the fee or incurred expenses, he violated RPC 1.15-1(a) and RPC 1.15-1(c); and by closing his
practice and terminating representation without refunding any portion of the advance payment
of fee or expense that he had not earned or incurred, he violated RPC 1.16(d).
Sanction
11.
Enright and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions (ABA
Standards). The ABA Standards require that Enright’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Enright violated duties he owed to his clients to safe keep their
funds in his possession and to take reasonable steps to protect their interests
upon termination of the representation.
b. Mental State. Enright acted negligently in, having failed to recognize that his
fee agreement did not comply with RPC 1.5(c)(3), failing to maintain Clients’
Cite as In re Enright, 31 DB Rptr 34 (2017)
37
unearned advance fees in trust and to refund all or part of the advance fee upon
termination of representation.
c. Injury. Enright’s misconduct resulted in actual injury, as Clients were deprived
of their funds for two years.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Prior discipline. Standards § 9.22(a). Enright has twice been admon-
ished for collecting improper fees, most recently in 2015 for using (in
July 2014) the same type of noncompliant fee agreement as at issue here.
While letters of admonition are generally not considered discipline, they
may be viewed as an aggravating factor when they involve similar
misconduct. In re Cohen, 330 Or 489, 500–01, 3 P3d 953 (2000).
2. Multiple offenses. Standards § 9.22(d). Within a one-year period,
Enright collected nonrefundable fees under an improper fee agreement
in this matter and in the matter that resulted in the 2015 admonition. Had
they been reported to the Bar at the same time, they would have been
treated as multiple violations, and would have justified a public repri-
mand for the improper fee agreement alone.
Under the ABA Standards, absent aggravating and mitigating factors, suspension is
generally appropriate when a lawyer knows or should know that he is dealing improperly with
client property and causes injury or potential injury to a client. Standards § 4.12. Because the
aggravating factors are not offset by any mitigating factors, a 60-day suspension is appropriate.
12.
Oregon case law is in accord. In re Fadeley, 342 Or 403, 153 P3d 682 (2007), resulted
in a 30-day suspension when the attorney failed to refund the unearned portion of a retainer
when the representation ended. In re Balocca, 342 Or 279, 151 P3d 154 (2007), resulted in a
90-day suspension when an attorney failed to return unearned client funds after closing his file.
(The court also found conflict of interest and trust account violations.) In re Eckrem II, 28 DB
Rptr 77 (2014), resulted in a 90-day suspension, 60 days stayed pending a two-year probation,
when an attorney used a flat-fee agreement that complied with RPC 1.5(c)(3), but failed to
promptly refund the unearned portion of that fee when the client terminated representation
before completion of the matter. In re Eckrem I, 23 DB Rptr 84 (2009), resulted in a 60-day
suspension when, after a client fired the attorney for neglect, the attorney failed to notify the
court that he no longer represented the client and failed to promptly refund any unearned fees
and unincurred costs. In another client matter, the attorney failed to return file materials or
funds to the client upon termination.
Cite as In re Enright, 31 DB Rptr 34 (2017)
38
13.
Consistent with the ABA Standards and Oregon case law, the parties agree that Enright
shall be suspended 60 days for violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.16(d), the sanction to be effective immediately upon approval of this Stipulation by the
Disciplinary Board.
14.
Enright acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Enright certifies that
he closed his practice in November 2014 and has no client files or records in his possession.
15.
Enright acknowledges that reinstatement is not automatic on expiration of the period
of suspension. He is required to comply with the applicable provisions of Title 8 of the Bar
Rules of Procedure. Enright also acknowledges that he cannot hold himself out as an active
member of the Bar or provide legal services or advice until he is notified that his license to
practice law has been reinstated.
16.
Enright acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement.
17.
Enright represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Enright is admitted: none.
18.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
I, Brendan Enright, hereby declare under penalty of perjury under the laws of Oregon
that: I am the Accused in the above-entitled proceeding; the statements contained above are
true and correct; and that I am physically outside the geographic boundaries of the United
States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession
subject to the jurisdiction of the United States.
Cite as In re Enright, 31 DB Rptr 34 (2017)
39
EXECUTED on the 3rd day of March, 2017.
/s/ Brendan Enright
Brendan Enright, OSB No. 843550
EXECUTED this 21st day of March, 2017.
OREGON STATE BAR
By: /s/ Susan R. Cournoyer
Susan R. Cournoyer, OSB No. 863381
Assistant Disciplinary Counsel
Cite as In re Reed, 31 DB Rptr 40 (2017)
40
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-06
) SC S064741
SHANE A. REED, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: Marc K. Sellers
Disciplinary Board: None
Disposition: Violation of RPC 1.15-1(a), RPC 8.4(a)(3), and ORS
9.527(2). Stipulation for Discipline. 1-year suspension,
all but 6 months stayed, 2-year probation.
Effective Date of Order: April 13, 2017
ORDER ACCEPTING STIPULATION FOR DISCIPLINE
Upon consideration by the court.
The court accepts the Stipulation for Discipline. Effective as of the date of this order,
the accused is suspended from the practice of law in the State of Oregon for a period of one
year, all but six months of which shall be stayed pending the accused’s successful completion
of a two year period of probation, on the terms and conditions recited in the parties’ Stipulation
for Discipline.
/s/ Thomas A. Balmer
04/13/2017 8:04 AM
Thomas A. Balmer
Chief Justice, Supreme Court
STIPULATION FOR DISCIPLINE
Shane A. Reed, attorney at law (“Reed”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Reed, 31 DB Rptr 40 (2017)
41
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Reed was admitted by the Oregon Supreme Court to the practice of law in Oregon on
May 3, 1996, and has been a member of the Bar continuously since that time, having his office
and place of business in Jackson County, Oregon.
3.
Reed enters into this Stipulation for Discipline freely, voluntarily, and with the advice
of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On May 26, 2016, a Formal Complaint was filed against Reed pursuant to the author-
ization of the State Professional Responsibility Board (“SPRB”), alleging violations of RPC
1.15-1(a) (failure to maintain client funds separate from the his own property); RPC 1.15-1(b)
(depositing his own funds in a lawyer trust account for impermissible purposes); RPC 8.4(a)(3)
(conduct involving dishonesty, fraud, deceit or misrepresentation); and ORS 9.527(2) (con-
viction of a federal crime punishable by imprisonment). The parties intend that this Stipulation
for Discipline set forth all relevant facts, violations, and the agreed-upon sanction as a final
disposition of the proceeding.
Facts
5.
Reed was a practicing attorney in Jacksonville, Oregon, practicing as a plaintiff’s
personal injury lawyer, when he filed federal income tax returns for 2006, 2007, and 2008.
Although the returns collectively reflected that he had earned a total of approximately
$880,000 in income for which he had a tax obligation of approximately $129,000, Reed failed
to pay the taxes owed.
6.
When the Internal Revenue Service (IRS) began communicating with Reed in writing,
seeking to address his nonpayment of taxes as reflected on his tax returns, Reed was initially
nonresponsive. Letters sent by the Collection Division were returned unopened. After a time,
the IRS initiated formal collection proceedings, as a result of which Reed was aware that the
IRS might seek to levy identifiable bank accounts in order to secure payment of income taxes
Reed had acknowledged he owed by the filing of income tax returns.
Cite as In re Reed, 31 DB Rptr 40 (2017)
42
7.
At some point beginning in 2009, Reed began using his lawyer trust account as a place
to retain earned fees. Recognizing that the IRS and other creditors would be hesitant to levy a
lawyer trust account, Reed sheltered his income from being levied by knowingly and
intentionally leaving it in his lawyer trust account. Periodically, and without regard to when
the fees had been earned, Reed accessed earned fees by writing a check to himself from the
trust account, which would then be cashed and used to pay personal expenses. Reed continued
to commingle earned fees with client funds in his lawyer trust account through 2010 and 2011.
8.
On May 13, 2015, Reed pled guilty to one count of failure to pay income tax for tax
years 2007 through 2009, in violation of 26 USC § 7203. USA v. Reed, US District Court Case
No. 6:15-CR-00010-MC. The crime was a federal misdemeanor punishable by imprisonment
of not more than one year.
Violations
9.
Reed admits that his failure to pay his tax when due was the commission of a federal
crime, punishable by imprisonment, which violated ORS 9.527(2).
10.
Reed further admits that his election to utilize his lawyer trust account to shelter his
personal funds was a decision that lacked integrity and caused his own funds to be commingled
with those of his clients, in violation of RPC 1.15-1(a) and RPC 8.4(a)(3).
11.
Upon further factual inquiry, the parties agree that the alleged violation of RPC 1.15-
1(b) as set forth in the Bar’s Formal Complaint, should be, and upon the approval of this
stipulation, is dismissed.
Sanction
12.
Reed and the Bar agree that, in fashioning an appropriate sanction in this case, the
Supreme Court should consider the ABA Standards for Imposing Lawyer Sanctions (“Stan-
dards”). The Standards require that Reed’s conduct be analyzed by considering the following
factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential
injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Reed violated his duty to clients to safeguard client property
and keep it separate from his own. Standards § 4.1. The Standards provide that
the most important ethical duties are those obligations which a lawyer owes to
Cite as In re Reed, 31 DB Rptr 40 (2017)
43
clients. Standards at 5. Reed also violated his duty to the public to comply with
the laws and maintain his personal integrity. Standards § 5.1.
b. Mental State. Reed acted with knowledge; that is, he acted with the conscious
awareness of the nature or attendant circumstances of the conduct but without
the conscious objective or purpose to accomplish a particular result. Standards
at 9.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). There was actual injury to the
taxing authorities as a result of Reed’s elections to shelter his funds and not
timely pay his obligations. In addition, by failing to comply with the trust
account rules, Reed “caused actual harm to the legal profession.” In re Peterson,
348 Or 325, 343, 232 P 3d 940 (2010); In re Obert, 352 Or 231, 260, 282 P 3d
825 (2012).
d. Aggravating Circumstances. Aggravating circumstances include:
1. A prior record of discipline. Standards § 9.22(a). In 2007, Reed was
reprimanded for a violation of RPC 8.4(a)(3) (misrepresentation) for
signing his client’s name to a release of claims without informing the
opposing party that the client had not signed the release or that he had
signed the client’s name as the client’s attorney in fact. Reed also
violated former RPC 7.5(c)(1) (misleading firm name) by advertising
that he was in a firm with “associates” when he was the only lawyer. In
re Reed, 21 DB Rptr 222 (2007).
2. A dishonest or selfish motive. Standards § 9.22(b).
3. A pattern of misconduct. Standards § 9.22(c).
4. Multiple offenses. Standards § 9.22(d). Reed violated ORS 9.527(2),
RPC 1.15-1(a), and RPC 8.4(a)(3).
5. Substantial experience in the practice of law. Standards § 9.22(i).
6. Illegal conduct. Standards § 9.22(k).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Personal problems. Standards § 9.32(c). Reed was experiencing
significant financial stressors during the period at issue in this formal
proceeding.
2. Cooperative attitude toward proceedings. Standards § 9.32(e).
Cite as In re Reed, 31 DB Rptr 40 (2017)
44
3. Imposition of other penalties or sanctions. Standards § 9.32(k). Follow-
ing his criminal conviction, Reed was sentenced to five (5) years of
probation and 250 hours of community service.
13.
Under the ABA Standards, a suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12. Similarly, a suspension is also generally appropriate when
a lawyer knowingly violates his duty to the public to maintain his personal integrity. Standards
§ 5.12.
14.
Oregon case law is in accord. See, e.g., In re Millar, 29 DB Rptr 197 (2015) (respondent
attorney with no prior discipline was suspended for 6 months where he willfully failed on
repeated occasions over nine years to pay over amounts deducted and withheld from employee
wages at the time said amounts were due, in violation of federal law. In paystubs, paychecks,
and year-end wage and tax statements provided to his employees for the relevant tax periods,
attorney falsely represented that a portion of their gross wages had been withheld and paid over
to state and federal taxing authorities on their behalf for income, social security, and Medicare
taxes.); In re Steves, 26 DB Rptr 283 (2012) (attorney suspended for one year where, over a
period of years, she willfully failed to file federal income tax returns timely or pay the tax due,
and where she had been previously disciplined for unrelated misconduct); In re Street, 24 DB
Rptr 258 (2010) (attorney with no prior discipline was suspended for one year, 8 months
stayed, for failing to file personal income tax returns for several years or pay the taxes due); In
re Bowman, 24 DB Rptr 144 (2010) (attorney with no prior discipline was suspended for one
year, 8 months stayed, for willful failure to file income tax returns or pay income tax due, over
a three-year period); In re Levie, 22 DB Rptr 66 (2008) (attorney who intentionally used his
trust account as his own personal account, deposited his own funds therein, and paid personal
and business expenses directly from that account in order to shield those funds from creditors
was suspended for six months).
15.
BR 6.2 recognizes that probation can be appropriate and permits a suspension to be
stayed pending the successful completion of a probation. See also Standards § 2.7 (probation
can be imposed alone or with a suspension and is an appropriate sanction for conduct which
may be corrected). In addition to a period of suspension, a period of probation designed to
ensure the adoption and continuation of better practices will best serve the purpose of
protecting clients, the public, and the legal system.
Cite as In re Reed, 31 DB Rptr 40 (2017)
45
16.
Consistent with the Standards and Oregon case law, the parties agree that Reed shall
be suspended for one (1) year for his violations of RPC 1.15-1(a); RPC 8.4(a)(3); and ORS
9.527(2), with all but six (6) months of the suspension stayed, pending Reed’s successful
completion of a two (2)-year term of probation. The sanction shall be effective April 1, 2017,
notwithstanding an earlier date upon which this Stipulation for Discipline is approved by the
Supreme Court (“effective date”).
17.
Reed’s license to practice law shall be suspended for a period of six (6) months
beginning on the effective date (“actual suspension”), assuming all conditions have been met.
Reed understands that reinstatement is not automatic and that he cannot resume the practice of
law until he has taken all steps necessary to re-attain active membership status with the Bar.
During the period of actual suspension, and continuing through the date upon which Reed re-
attains his active membership status with the Bar, Reed shall not practice law or represent that
he is qualified to practice law; shall not hold himself out as a lawyer; and shall not charge or
collect fees for the delivery of legal services other than for work performed and completed
prior to the period of active suspension.
18.
Probation shall commence upon the date Reed is reinstated to active membership status
following his actual suspension (“reinstatement date”) and shall continue for a period of two
(2) years, ending on the day prior to the second (2
nd
) year anniversary of the reinstatement date
(the “period of probation”). During the period of probation, Reed shall abide by the following
conditions:
(a) Reed will communicate with Disciplinary Counsel’s Office (“DCO”) and allow
DCO access to information, as DCO deems necessary, to monitor compliance
with his probationary terms.
(b) Reed shall comply with all provisions of this Stipulation for Discipline, the
Rules of Professional Conduct applicable to Oregon lawyers, and ORS Chapter
9.
(c) During the period of probation, Reed shall attend not less than eight (8) CLE
accredited programs, for a total of twenty-four (24) hours, all of which shall
emphasize law-practice management, time management, and trust account
practices. These credit hours shall be in addition to his Ethics School require-
ment pursuant to BR 6.4, and those MCLE credit hours required of Reed for his
normal MCLE reporting period.
(d) Upon completion of the CLE programs described in paragraph 18(c), and prior
to the end of his period of probation, Reed shall submit an Affidavit of
Cite as In re Reed, 31 DB Rptr 40 (2017)
46
Compliance to DCO that identifies the MCLE-accredited programs attended by
Reed in compliance with paragraph 18(c).
(e) Every month for the period of probation, Reed shall:
(1) Comply with all terms set forth in the Conditions of Probation and
Supervised Release in US District Court for the District of Oregon
Docket No. 6: 15CR00010-001-MC.
(2) Pay the monthly installment on his tax obligation for tax years 2011-
2013, pursuant to the Department of the Treasury — Internal Revenue
Service Installment Agreement (Form 433-D) dated November 23,
2015.
(3) Maintain complete records, including individual client ledgers, of the
receipt and disbursement of client funds and payments on outstanding
bills.
(4) Remove earned funds from his lawyer trust account on a regular basis
and account for the receipt of earned funds in accounting and tax docu-
ments.
(5) Review his monthly trust account records and client ledgers and recon-
cile those records with his monthly lawyer trust account bank state-
ments.
(f) For the period of probation, Reed will timely file his personal state and federal
tax returns, including quarterly filings, if appropriate.
(g) For the period of probation, Reed will employ a bookkeeper approved by DCO,
to assist in the
(1) Monthly reconciliation of his lawyer trust account records.
(2) Monthly reconciliation of client funds, including client ledger cards.
(3) Timely and proper removal of earned funds from trust on a regular basis.
(4) Appropriate accounting of earned funds.
(5) Reporting of gross receipts and tax obligations.
(h) On a monthly basis, the bookkeeper employed by Reed will prepare and sign a
written declaration that confirms that the bookkeeper has performed the tasks
outlined in paragraph 18(g), identifies any problems encountered in the
performance of those tasks, and provides explanation, as necessary.
(i) On or before the day prior to the first and second year anniversary of the
reinstatement date, Reed shall arrange for an accountant to conduct an audit of
Cite as In re Reed, 31 DB Rptr 40 (2017)
47
his lawyer trust account and to prepare a report of the audit for submission to
DCO within 30 days thereafter.
(j) William E. Schireman shall serve as Reed’s probation supervisor (“Super-
visor”). Reed shall cooperate and comply with all reasonable requests made by
Supervisor that Supervisor, in his or her sole discretion, determines are designed
to achieve the purposes of the probation and the protection of Reed’s clients,
the profession, the legal system, and the public.
(k) Beginning with the first month of the period of probation, Reed shall meet with
his Supervisor in person at least once a month for the purpose of permitting his
Supervisor to inspect and review Reed’s accounting and recordkeeping systems
to confirm that Reed is:
(1) Reviewing and reconciling his lawyer trust account records monthly;
(2) Maintaining complete records of the receipt and disbursement of client
funds; and
(3) Not commingling his own funds with client funds, but is timely and
appropriately removing his own funds from his lawyer trust account
when earned or otherwise owed.
Reed agrees that his Supervisor may contact all employees and inde-
pendent contractors who assist Reed in the review and reconciliation of
his lawyer trust account records.
(l) Reed authorizes his Supervisor to communicate with DCO regarding Reed’s
compliance or noncompliance with the terms of his probation and to release to
DCO any information DCO deems necessary to permit it to assess Reed’s
compliance.
(m) On or before seven (7) days after his reinstatement date, Reed shall contact the
Professional Liability Fund (“PLF”) and schedule an appointment on the
soonest date available to consult with PLF practicemanagement advisors in
order to obtain an evaluation of whether he would benefit from changes to his
office practices (including file management, docket management, calendaring,
and client communication) and trust accounting procedures. Reed shall
schedule the first available appointment with the PLF and notify the Bar of the
time and date of the appointment.
(n) Reed shall attend the appointment with the PLF practice management advisor
and adopt and implement any recommendations no later than thirty (30) days
after recommendations are made by the PLF. Prior to the first (1st) anniversary
of his reinstatement date, Reed shall participate in at least one follow-up review
Cite as In re Reed, 31 DB Rptr 40 (2017)
48
by the PLF. Reed shall promptly report the PLF recommendations and
implementation of the PLF recommendations to his Supervisor and DCO.
(o) In his first quarterly report described in paragraph 18(p) below, Reed shall
provide a copy of the Office Practice Assessment from the PLF and file a report
with DCO stating the date of his consultation(s) with the PLF; identifying the
recommendations that he has adopted and implemented; and identifying the
specific recommendations he has not implemented and explaining why he has
not adopted and implemented those recommendations. Subsequent PLF recom-
mendations and/or implementation of PLF recommendations shall be reported
in the next quarterly report, as applicable.
(p) On a quarterly basis, on dates to be established by Disciplinary Counsel
beginning no later than ninety (90) days after the reinstatement date, Reed shall
submit to DCO a written “Compliance Report,” signed under oath and approved
as to substance by his Supervisor, advising whether Reed is in compliance with
the terms of this Stipulation for Discipline, including
(1) That Reed is in compliance with all terms set forth in the Conditions of
Probation and Supervised Release in US District Court for the District
of Oregon Docket No. 6: 15CR00010-001-MC.
(2) That Reed has timely filed any personal state and federal tax returns,
including any required quarterly filings, due in the period covered by
the Compliance Report.
(3) Provide financial documents sufficient to establish, as to the preceding
calendar quarter (consisting of three complete months prior to the month
during which the information is being provided), that Reed has paid all
monthly installments in the period covered by the Compliance Report
on his tax obligation for tax years 2011-2013, pursuant to the Depart-
ment of the Treasury — Internal Revenue Service Installment Agree-
ment (Form 433-D) dated November 23, 2015. Financial documents
may include copies of cancelled checks or records of wire transfers.
(4) That Reed has employed and utilized the services of a bookkeeper
during the entirety of the period covered by the Compliance Report.
(5) That Reed has maintained complete records, including individual client
ledgers, of the receipt and disbursement of client funds and payments
on outstanding bills.
(6) That Reed has removed earned funds from his lawyer trust account on
a regular basis and accounted for the receipt of earned funds in account-
ing and tax documents.
Cite as In re Reed, 31 DB Rptr 40 (2017)
49
(7) That Reed has reviewed his trust account records and client ledgers on
a monthly basis and reconciled those records with his lawyer trust
account bank statements.
(8) That any withholding requirements as to Reed’s income for the quarter
applicable to the report have been met.
(9) Attaching any tax filings for the period covered by the Compliance
Report.
(10) Attaching the bookkeeper declarations described in paragraph 18(h) for
the period covered by the Compliance Report.
(11) The dates and purpose of Reed’s meetings with Supervisor.
(12) Whether Reed has complied with the other requests made by Super-
visor, if applicable.
(13) Any PLF recommendations made in the period covered by the Com-
pliance Report and whether Reed has complied with those recom-
mendations.
(14) In the event Reed has not complied with any term of probation in this
disciplinary case, the report shall also describe the non-compliance and
the reason for it, and when and what steps have been taken to correct
the non-compliance.
(q) Reed is responsible for any costs required under the terms of this stipulation
and the terms of probation.
(r) Reed’s failure to comply with any term of this agreement, including conditions
of timely and truthfully reporting to DCO, or with any reasonable request of
Supervisor, shall constitute a basis for the revocation of probation and
imposition of the stayed portion of the suspension.
(s) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to
Disciplinary Counsel on or before its due date.
(t) The SPRB’s decision to bring a formal complaint against Reed for unethical
conduct that occurred or continued during the period of his suspension or
probation shall also constitute a basis for revocation of the probation and
imposition of the stayed portion of the suspension.
19.
Reed acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Reed has arranged for
Cite as In re Reed, 31 DB Rptr 40 (2017)
50
Talon J. Reed, an active member of the Bar, to either take possession of or have ongoing access
to Reed’s client files and serve as the contact person for clients in need of the files during the
term of his suspension. Reed represents that Talon J. Reed has agreed to accept this respon-
sibility.
20.
Reed acknowledges that reinstatement is not automatic on expiration of the period of
suspension. He is required to comply with the applicable provisions of Title 8 of the Bar Rules
of Procedure. Reed also acknowledges that he cannot hold himself out as an active member of
the Bar or provide legal services or advice until he is notified that his license to practice law
has been reinstated.
21.
Reed acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Reed to attend or obtain continuing legal education
(CLE) credit hours.
22.
Reed represents that, in addition to Oregon, he also is admitted to practice law in
California, and he acknowledges that the Bar will be informing California of the final
disposition of this proceeding. Reed represents that California is the only jurisdiction, apart
from Oregon, where he is licensed to practice.
23.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Supreme Court for consideration pursuant to the terms of BR 3.6.
Cite as In re Reed, 31 DB Rptr 40 (2017)
51
EXECUTED this 15th day of February, 2016.
/s/ Shane A. Reed
Shane A. Reed
OSB No. 961597
APPROVED AS TO FORM AND CONTENT:
/s/ Mark K. Sellers
Marc K. Sellers
OSB No. 791077
EXECUTED this 27th day of February, 2016.
OREGON STATE BAR
By: /s/ Amber Bevacqua-Lynott
Amber Bevacqua-Lynott
OSB No. 990280
Chief Assistant Disciplinary Counsel
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
52
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 16-122 & 16-138
)
DWIGHT L. FAULHABER, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: John Fisher
Disciplinary Board: None
Disposition: Violation of RPC 1.5(c)(3), RPC 1.9(a), and RPC 1.15-
1(c). Stipulation for Discipline. 30-day suspension.
Effective Date of Order: April 30, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Dwight L. Faulhaber and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Faulhaber is suspended for 30 days, effective 10 days after approval by the Disciplinary Board,
or April 1, 2017, whichever is later for violation of RPC 1.5(c)(3), RPC 1.9(a), and RPC 1.15-
1(c).
DATED this 20th day of April, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Jet Harris
Jet Harris, Region 2
Disciplinary Board Chairperson
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
53
STIPULATION FOR DISCIPLINE
Dwight L. Faulhaber, attorney at law (“Faulhaber”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Faulhaber was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 17, 1971, and has been a member of the Bar continuously since that time, having
his office and place of business in Lane County, Oregon.
3.
Faulhaber enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On September 10, 2016, the State Professional Responsibility Board (“SPRB”)
authorized formal disciplinary proceedings against Faulhaber for an alleged violation of RPC
1.9(a) of the Oregon Rules of Professional Conduct (“Domestic Relations Matter”).
5.
On October 22, 2016, the SPRB authorized formal disciplinary proceedings against
Faulhaber for alleged violations of RPC 1.5(c)(3) and RPC 1.15-1(c) of the Oregon Rules of
Professional Conduct (“Bankruptcy Petition Matter”). The SPRB consolidated the Domestic
Relations and Bankruptcy Petition Matters.
6.
The parties intend that this Stipulation for Discipline set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of the consolidated proceeding.
Domestic Relations Matter
OSB Case No. 16-122
Facts
7.
In 2005, Faulhaber represented co-petitioners Wife (“Wife”) and Husband
(“Husband”) to complete Husband’s step-parent adoption of Wife’s minor daughter. After the
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
54
judgment of adoption was entered in October 2005, Faulhaber’s representation of Wife and
Husband was concluded.
8.
In 2013, Faulhaber represented Husband in a marital dissolution proceeding (“dis-
solution proceeding”) against Wife, in which custody of the parties’ daughter and the fitness
of both parties were hotly contested issues.
9.
Faulhaber’s original representation of Wife and Husband in 2005 involved both Wife’s
and Husband’s interests with respect to parenting of their daughter. Faulhaber’s representation
of Husband in the parties’ 2013 divorce and custody dispute also involved both Wife’s and
Husband’s interests with respect to parenting of their daughter.
10.
Faulhaber reports that he had no independent recollection of previously handling the
adoption matter for Wife and Husband. Additionally, Faulhaber reports that he did not find a
reference to either Wife or Husband in his conflict system.
Violation
11.
Faulhaber admits that, by representing Husband in the dissolution proceeding, he
engaged in a former client matter-specific conflict of interest in violation of RPC 1.9(a).
Bankruptcy Petition Matter
OSB Case No. 16-138
12.
Faulhaber was retained by J.A. (“J.A.”) in September 2014 for a Chapter 7 bankruptcy
petition. J.A. paid Faulhaber a $900 advance flat fee subject to a written fee agreement that:
Did not designate the payment as earn earned-upon-receipt;
Did not disclose that the funds would not be deposited into Faulhaber’s trust
account; and
Did not explain that J.A. would be able to discharge Faulhaber at any time, in
which event she might be entitled to a refund of all or part of the fee if the
services for which the fee had been paid had not been completed.
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
55
13.
Faulhaber did not deposit J.A.’s $900 payment into his trust account. Instead, he treated
it as earned-on-receipt and placed it directly into his business account.
Violations
14.
Faulhaber admits that by collecting a flat fee pursuant to an agreement that did not
comply with RPC 1.5(c)(3), he violated the provisions of that rule. Faulhaber further admits
that in failing to have an agreement in compliance with RPC 1.5(c)(3), he was required to
deposit the client’s funds into trust and leave them there until earned. Accordingly, his failure
to do so violated RPC 1.15-1(c).
Sanction
15.
Faulhaber and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Faulhaber’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Faulhaber violated his duties to his former client to preserve
client funds and to avoid conflicts of interest. Standards §§ 4.1, 4.3. The
Standards provide that the most important duties a lawyer owes are those owed
to clients. Standards at 5. Faulhaber also violated his duty to the profession
when he failed to use the required form of written fee agreement and treated the
client’s payment as earned upon receipt. Standards § 7.0.
b. Mental State. Knowledge is defined as “the conscious awareness of the nature
or attendant circumstances of the conduct but without the conscious objective
or purpose to accomplish a particular result.” Standards at 9. Negligence is the
failure of a lawyer to heed a substantial risk that circumstances exist or that a
result will follow, which failure is a deviation from the standard of care that a
reasonable lawyer would exercise in the situation. Id.
Faulhaber’s conduct was arguably knowing, in that he engaged in a clear
conflict of interest when he represented Husband against Wife in a dispute that
involved the same parental rights at issue in the prior representation of both
Husband and Wife. However, it is also arguable that Faulhaber acted neg-
ligently, in that he reports that his conflict screening system failed and therefore
he failed to heed the risk that his representation of his current client against his
former client constituted a former client conflict.
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
56
Faulhaber was negligent in preparing and utilizing a fee agreement with J.A.
that failed to comport with the requirements of RPC 1.5(c)(3). Similarly,
Faulhaber was negligent in treating J.A.’s funds as earned on receipt.
c. Injury. Injury can either be actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Faulhaber’s subsequent
efforts, on behalf of Husband, to remove the daughter from Wife’s custody and
restrict her parenting time damaged Wife’s parental interests in connection with
the preceding adoption proceeding. Faulhaber’s fee-agreement and trust-
account violations as it related to J.A.’s funds caused potential injury to the
client by failing to ensure that her funds were readily available for her legal
matter.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Prior disciplinary offenses. Standards § 9.22(a). This factor refers to
offenses that have been adjudicated prior to imposition of the sanction
in the current case. In re Jones, 326 Or 195, 200, 951 P2d 149 (1997).
In 1993, Faulhaber was suspended for 120 days (60-days stayed,
pending a 1-year probation) for violations of DR 2-110(B)(2) (current
RPC 1.16(a)(1)) (duty to withdraw where lawyer knows continued
representation will result in violation of a Disciplinary Rule); and DR
5-101(A) (current RPC 1.7(a)) (personal interest conflict of interest). In
re Faulhaber, Or S Ct No S39959 (1993) (“Faulhaber I”). The charges
in Faulhaber I stemmed from Faulhaber’s personal feelings and
resulting conduct toward one of his female personal-injury clients.
In 2016, Faulhaber received a letter of admonition for violations of RPC
1-15-1(c) and RPC 1.5(c)(3). In re Faulhaber, OSB Case No. 15-51
(“Faulhaber II”). Specifically, as in the Bankruptcy Petition Matter,
Faulhaber failed to use a written fee agreement and treated his client’s
payment as “earned on receipt.” A letter of admonition is considered as
evidence of past misconduct if the misconduct that gave rise to that letter
was of the same or similar type as the misconduct at issue in the case at
bar. In re Cohen, 330 Or 489, 500, 8 P3d 953 (2000). However, some
of the conduct that led to Faulhaber’s admonition occurred within the
same time period as the case at issue here. To the extent that the conduct
in this case predates the imposition of the prior discipline, the prior
discipline is given little weight as an aggravating factor. Jones, 326 Or
at 200.
2. Multiple offenses. Standards § 9.22(d). Faulhaber’s conduct resulted in
violations in two different matters.
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
57
3. Vulnerable victim. Standards § 9.22(h). Wife was unrepresented in the
Domestic Relations Matter.
4. Substantial experience in the practice of law. Standards § 9.22(i).
Faulhaber was admitted to practice law in 1971.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards § 9.32(b).
2. Full and free disclosure to disciplinary board and a cooperative attitude
toward proceedings. Standards § 9.32(e).
3. Remoteness of his prior offense. Standards § 9.32(m). The conduct at
issue in Faulhaber I was more than 20 years old at the time of
Faulhaber’s actions in these matters.
16.
Under the ABA Standards, and without considering aggravating or mitigating factors,
suspension is generally appropriate when a lawyer knows of a conflict of interest and does not
fully disclose to a client the possible effect of that conflict, and causes injury or potential injury
to a client. Standards § 4.32. Additionally, reprimand is generally appropriate when a lawyer
negligently engages in conduct that is a violation of a duty owed to the profession, and causes
injury or potential injury to a client, the public, or the legal system. Standards § 7.3. Here, the
mitigating factors temper the aggravating factors. On the balance, however, a suspension is
still warranted under the Standards for Faulhaber’s collective conduct for both matters.
17.
Oregon case law also supports the imposition of a suspension in this matter. The court
has held that a finding that a lawyer has engaged in a conflict of interest, standing alone, can
justify a 30-day suspension. See In re Campbell, 345 Or 670, 689, 202 P 3d 871 (2009); In re
Knappenberger, 338 Or 341, 361, 108 P 3d 1161 (2005) (court ordinarily suspends lawyers
who engage in conflicts); In re Hockett, 303 Or 150, 164, 734 P 2d 877 (1987) (30-day
suspension appropriate for single violation of former-client-conflict rule). Suspensions are also
imposed when an attorney fails to use a written fee agreement, but treats their client’s funds as
earned on receipt. See also In re Ireland, 26 DB Rptr 47 (2012) (30-day suspension appropriate
when attorney violated RPC 1.15-1(a) and RPC 1.15-1(c) in failing to deposit client funds in
trust upon receipt).
18.
Consistent with the Standards and Oregon case law, the parties agree that Faulhaber
shall be suspended for 30 days for his violations of RPC 1.5(c)(3), RPC 1.9(a), and RPC 1.15-
1(c), the sanction to be effective 10 days after approval by the Disciplinary Board, or April 1,
2017, whichever is later.
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
58
19.
Faulhaber acknowledges that he has certain duties and responsibilities under the Rules
of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid
foreseeable prejudice to his clients during the term of his suspension. In this regard, Faulhaber
has arranged for Bruce W. Newton (OSB No. 803254), an active member of the Bar, to either
take possession of or have ongoing access to Faulhaber’s client files and serve as the contact
person for clients in need of the files during the term of his suspension. Faulhaber represents
that Bruce W. Newton has agreed to accept this responsibility.
20.
Faulhaber acknowledges that reinstatement is not automatic on expiration of the period
of suspension. He is required to comply with the applicable provisions of Title 8 of the Bar
Rules of Procedure. Faulhaber also acknowledges that he cannot hold himself out as an active
member of the Bar or provide legal services or advice until he is notified that his license to
practice law has been reinstated.
21.
Faulhaber acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Faulhaber to attend or obtain continuing legal
education (CLE) credit hours.
22.
Faulhaber represents that, in addition to Oregon, he also is admitted to practice law in
the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Faulhaber is admitted: none
23.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Faulhaber, 31 DB Rptr 52 (2017)
59
EXECUTED this 10th day of March, 2017.
/s/ Dwight L. Faulhaber
Dwight L. Faulhaber, OSB No. 710584
APPROVED AS TO FORM AND CONTENT:
EXECUTED this 16th day of March, 2017.
/s/ John Fisher
John Fisher, OSB No. 771750
EXECUTED this 20th day of March, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey, OSB No. 060478
Assistant Disciplinary Counsel
Cite as In re Basham, 31 DB Rptr 60 (2017)
60
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 15-38
)
JONATHAN G. BASHAM, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Nik T. Chourey
Counsel for the Accused: None
Disciplinary Board: Jennifer F. Kimble, Chairperson
Craig A. Crispin
Carrie Bebout, Public Member
Disposition: Violation of RPC 1.6(a), RPC 1.9(a), and RPC 1.9(c).
Trial Panel Opinion. 1-year suspension.
Effective Date of Opinion: April 25, 2017
DECISION OF THE TRIAL PANEL
This matter came on for trial on December 5, 6, and 7, 2016. The Trial Panel consisted
of the Trial Panel Chair, Jennifer F. Kimble (“Chair”), Craig A. Crispin, Esq., and public
member Carrie Bebout. Amber Bevacqua-Lynott, Assistant Disciplinary Counsel and Nik T.
Chourey, Assistant Disciplinary Counsel represented the Oregon State Bar (“Bar”), and the
Accused, Jonathan G. Basham (“Accused”), appeared pro se.
Procedural History
This matter is before this Trial Panel based on a Formal Complaint filed and served by
the Bar on March 4, 2016. The Accused filed and served his Response to the Formal Complaint
on April 18, 2016. On June 6, 2016, the Bar took the Accused’s deposition.
On September 22, 2016, the Accused filed his Requests for Admission, to which the
Bar responded on October 17, 2016. On October 28, 2016, the Accused filed a Motion to
Determine the Sufficiency of the Bar’s Response to the Requests for Admission, and the Bar
responded to that Motion on November 7, 2016. On November 19, 2016, the Trial Panel Chair
advised the parties that no ruling would be made with regard to the apparent dispute regarding
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Requests for Admission, as the only permissible pleadings, pursuant to Rules 4.4 and 4.8, are
the Formal Complaint and Answer, and a Trial Brief. Both parties submitted a Trial Memo-
randum. At the conclusion of the trial, due to the lateness of the hour, each side was given two
weeks to submit a written Closing Argument, which both sides did.
OPINION
The Accused was admitted to practice law in Oregon in 1990, and maintained his office
in Deschutes County, Oregon.
The Bar submitted approximately 71 documents as exhibits. These exhibits included
copies of correspondence between the Accused and the Bar, legal documents regarding various
litigations involving the Accused and the Complainant, and the deposition transcript of the
Accused’s deposition by the Bar. The Accused submitted approximately 77 documents as
exhibits. Those exhibits, along with the in-person testimony of witnesses appearing at the Trial,
establish the facts set forth below.
The Accused denied each of the Bar’s allegations which claimed violations of any
Disciplinary Rules.
In approximately 1998, the Accused began representation of Todd A. Goodew
(“Goodew”) and his related companies, including Goodew’s company, RTT Corporation
(“RTT”), which manufactured food products, including various sauces. In November of 2008,
during Basham’s representation of Goodew and RTT (“Goodew/RTT”), the Accused’s
brother-in-law, Dr. Adam Angeles (“Angeles”), purchased $200,000 in common shares of RTT
stock.
From approximately 2007 to 2009, the Accused represented Goodew/RTT in litigation
against a supplier of RTT’s ingredients, Brenntag Pacific (“Brenntag litigation”). During and
because of that litigation, the Accused obtained a list of certain of Goodew/RTT’s sauce recipes
and their ingredients (“secret recipes”). The Accused was aware that the secrecy of the sauce
recipes was vital to Goodew/RTT’s business interests.
The Accused provided a significant level of legal services to Goodew/RTT, to the
extent that Goodew/RTT became the primary source of the Accused’s income.
During the Brenntag litigation, the attorney-client relationship between the Accused
and Goodew/RTT deteriorated, and in November of 2009, the Accused resigned from his
representation of Goodew/RTT by filing a Motion to Withdraw as Counsel with the Court. In
support of his Motion to Withdraw, the Accused’s sworn Declaration included the following
representations to the Court:
a) “The relationship between me and RTT Corporation has deteriorated
to such an extent that I am no longer able to represent RTT Corporation
effectively in this matter.”
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b) “Over the last few months, the tension between me and RTT Cor-
poration has deteriorated to such an extent that RTT Corporation no longer
accepts my legal opinions, listens to my advice, or cooperates with me to
prosecute this case. Furthermore, despite its ability to do so, RTT Corporation
is not paying its significant outstanding legal bills owed to me.”
c) “RTT Corporation has supplemental discovery that is due to Defen-
dant Brenntag Pacific, Inc. However, the deterioration of the relationship
between me and RTT Corporation has prevented a timely follow-through with
that production. That deterioration in relationship, if left to continue, will
harm RTT Corporation.”
The Accused also resigned from other on-going litigation and cases in which he had
appeared on behalf of Goodew/RTT, citing similar reasons. The Accused terminated his
representation of Goodew and his companies in all other matters in approximately November
of 2009. In the Brenntag litigation, opposing counsel cited the Accused’s described above in
support of a motion to compel discovery.
The Accused then brought an action against RTT for unpaid attorney fees. The Accused
and RTT settled this fee dispute on March 30, 2010, and executed a mutual release of all claims.
Goodew was not individually a party to this litigation.
On April 15, 2010, Goodew made a complaint about the Accused to the Bar regarding
the information disclosed by the Accused in his Declaration supporting his motion to withdraw
from representation of Goodew/RTT. On November 19, 2010, the Bar sent a letter to Goodew,
indicating it was declining to pursue his complaint against the Accused, and explaining that
RPC 1.6(b) contains exceptions to the general rule relating to the preservation of client
confidences or secrets, including disclosure necessary to establish a claim on behalf of the
lawyer. The Bar went on to explain its reasons for not prosecuting the Accused for this alleged
violation, stating:
“First, the email exchange between you and Mr. Basham between November 12 and
November 16, 2009 is sufficient to establish that you gave informed consent to his filing a
motion to withdraw that disclosed he was having difficulty getting your cooperation, the
communication between you was hostile, you would not accept his advice, and you were not
paying. This email communication establishes that he told you he would have to state reasons
for withdrawing sufficient to comply with RPC 1.16(b). He advised that this would not be
helpful to you and suggested an alternative to this procedure. You elected to have him file
motions to withdraw, nonetheless. Because of this very strong evidence that you consented to
the disclosures Mr. Basham made, we would be unable to establish a necessary element of
RPC 1.6(a), and therefore have no probable cause to believe that Mr. Basham violated this
rule.
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Mr. Basham’s conduct also falls within an exception to RPC 1.6(a). Because the courts
to which Mr. Basham applied for permission to withdraw required him to establish cause to do
so under RPC 1.16(b), the disclosures in his motions were reasonably necessary to establish a
claim on his behalf in a controversy between you and him regarding his continued
representation. That Mr. Basham’s conduct falls within an exception to RPC 1.6(a) is another
reason that the Bar has no probable cause to believe he violated RPC 1.6.”
For a number of years after his withdrawal from representation, Goodew made several
demands for the Accused to return all of Goodew/RTT’s client files. Although the Accused
returned some materials to Goodew, he failed to provide all of Goodew/RTT’s files. In
particular, the Accused failed to return an electronic file containing Goodew’s correspondence
to the Accused which included the secret recipes.
In 2012, RTT went out of business, and Angeles therefore lost his $200,000 investment
in RTT. Goodew had not personally guaranteed Angeles’s investment in RTT and did not
assume personal liability for Angeles’s loss.
In 2013, Goodew and his wife (the “Goodews”) jointly filed for personal bankruptcy.
Based on the March 30, 2010, mutual release of all claims between Goodew and the Accused,
the Goodews did not personally owe the Accused any money. Evidence at trial was that both
the Accused and Angeles were aware of the Goodews’ personal bankruptcy filing, but neither
person filed a creditor’s claim or proof of claim. The Goodews’ bankruptcy debts totaled
approximately $11 million. The assets of the Goodews’ personal bankruptcy estate included
their trademarks and the current variations of the secret recipes (“evolved secret recipes”). On
June 28, 2013, the Goodews’ personal debts were discharged by the bankruptcy court.
On September 6, 2013, on behalf of himself and Angeles, the Accused offered to
purchase the evolved secret recipes from the bankruptcy trustee, Michael Batlan (“Trustee”),
for $3,500. Although the Accused and Angeles had no prior experience with the production or
marketing of sauces, the Accused and Angeles claimed that they intended to manufacture and
sell the sauces. The Accused represented to the Trustee that he had prior knowledge of the
secret recipes, and the Accused requested that the Trustee disclose to him the full content of
the actual ingredients of the evolved secret recipes before he and Angeles would complete their
purchase of the evolved secret recipes. In response, the Trustee required the Accused and
Angeles to execute a nondisclosure agreement before he would disclose the evolved secret
recipes to them. The Accused and Angeles executed the nondisclosure agreement on
September 10, 2013, and were provided with a copy of the evolved secret recipes by the
Trustee.
The Accused compared the evolved secret recipes to the secret recipes that he had
retained from his prior representation of Goodew/RTT, notwithstanding Goodew’s demands
for the return of all records. The Accused determined that there were variations between the
recipes he had retained from his prior representation of Goodew/RTT and the evolved secret
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recipes that the Trustee had shared with him. Based on this difference between the two sets of
recipes, including variations on ingredients and the complete absence of some of the original
recipes from the set of evolved secret recipes, the Accused concluded that the Goodews had
committed fraud in their bankruptcy, and, on September 20, 2013, reported this to the Trustee.
In spite of the Accused’s information, the Trustee did not reopen the Goodews’ bankruptcy or
seek a revocation of their discharge in bankruptcy.
On May 8, 2014, the Accused filed a complaint to have the Goodews’ bankruptcy
discharge revoked (“Adversary Action”), claiming that the Goodews had fraudulently
concealed property from the Trustee. The Accused’s complaint included allegations that the
evolved secret recipes provided to him by the Trustee were not complete or accurate renditions
of the correct recipes held by Goodew, that Goodew had falsely represented and swore to the
Trustee that some of the recipes had been abandoned prior to the bankruptcy proceeding, that
some of the recipes had changed since the time of the Accused’s original possession of them
during his prior representation of Goodew, and that Goodew did not own or possess other
particular recipes sought by the Accused. The Accused also alleged that Goodew had formed
a new sauce company on August 20, 2013, in “anticipation of keeping both the disclosed and
the undisclosed recipes to begin once again making sauces and seasonings.” Additionally, the
Accused alleged that Goodew had withheld a recipe that was a “major ingredient for several
of the recipes he produced” to the Trustee. All of the information contained in the Accused’s
complaint to the Trustee were dependent in whole or in part on information that the Accused
had learned during the course of his representation of Goodew/RTT.
11 USC § 727(d) and (e) provide that adversary actions in a bankruptcy case may only
be filed by creditors or the bankruptcy trustee. In order to have standing to file an adversarial
action to revoke discharge, a creditor must have had a claim against the debtor that arose at or
before the Order for Relief concerning the debtor. 11 USC § 101 (10)(A). The Accused was
not a creditor of the Goodews and therefore lacked standing to file and prosecute his Adversary
Action against the Goodews.
The Goodews hired attorney Martin Hansen to defend against the Accused’s Adversary
Action. In response to an assertion by Hansen that the Accused had no standing, the Accused
filed an unopposed Motion to Amend Complaint to join Angeles as a plaintiff. The Accused
asserted that Angeles was a proper plaintiff by claiming that Angeles was a creditor of the
Goodews. The Accused briefly represented Angeles in this claim, and then attorney Milly
Whatley assumed representation of Angeles. The Motion to Amend alleged that the Accused
was a creditor due to pre-bankruptcy petition unspecified “defamatory statements” allegedly
made at some time by Goodew to “several individuals.” Although the timing of these allegedly
defamatory statements was not specified by the Accused during said litigation, in response to
an inquiry from the Bar during the within disciplinary proceeding, the Accused claimed that
these allegedly defamatory statements occurred in November of 2009. In Oregon, the Statute
of Limitations for a claim of defamation is generally one year from the date of the statement
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or publication. ORS 12.120(2). Prior to this allegation of defamation asserted in the Motion to
Amend Complaint in the Adversary Action, the Accused had never taken any action in any
arena to address the alleged defamatory statements.
The Accused’s claim of defamation in the Adversary Proceeding was time barred. The
Accused argues that the claim was not barred because he did not discover the allegedly
defamatory statements until less than a year before he filed his adversary proceeding. The Panel
concludes it is not necessary to its disposition to resolve that factual issue. See Gaston v.
Parsons, 318 Or 247, 256, 864 P2d 1319 (1994) (whether a plaintiff knew or should have
known each element of the tort is a question of fact).
During the Adversary Action, the Accused objected to Goodew’s discovery requests
for the Accused’s correspondence with Goodew in the Brenntag litigation, notwithstanding
that the Accused had previously disclosed the content of these communications to the Trustee
and used the content of these communications as the basis of the Adversary Action. The
Accused asserted Goodew/RTT’s attorney-client privilege as a basis to refuse to produce this
correspondence, and Goodew was forced to file a motion to compel discovery of his own
communications with his former attorney made during the course of that representation.
In January of 2014, Goodew made a second complaint to the Bar regarding the
Accused’s conduct, this time raising concerns about the Accused’s use and disclosure of the
secret recipes, his representation of Angeles in the Adversary Proceeding, and the frivolous
nature of the Adversary Proceeding.
In approximately September of 2014, the Accused offered to dismiss the Adversary
Action and allow the Goodews’ bankruptcy discharge to remain undisturbed, if Goodew paid
the Accused and Angeles $15,000. This offer was declined by the Goodews. The parties
eventually agreed to dismissal of the Adversary Action without costs or fees to any party, and
the Order dismissing the case was entered by the bankruptcy court on December 3, 2014.
Credibility of Witnesses
The Bar has requested that the Panel make a finding as to the credibility of each witness,
and identify the basis for any credibility assessments. The Panel finds the credibility of the
witnesses as follows:
JUDY SNYDER, expert witness in General Civil Litigation for the Bar. Ms. Snyder
was a credible witness and did not reflect any bias towards either side in her straight forward
testimony. Ms. Snyder demonstrated no resistance to the Accused questions. Nonetheless, Ms.
Snyder’s testimony was not particularly helpful and did not inform the Panel’s conclusions.
DAN STEINBERG, expert witness in Bankruptcy Litigation for the Bar. Mr.
Steinberg was extremely credible in demeanor. He clearly had an opinion with regard to the
Accused’s actions in this case, but did not appear to overly advocate for the Bar’s position. He
displayed no resistance to the Accused’s questions. His ease of answering the questions and
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knowledge of the bankruptcy code was impressive. The Panel’s opinions and conclusions were
informed materially by Mr. Steinberg’s explanation of the Bankruptcy Code.
MARTIN HANSON, attorney representing Goodew in Adversarial Proceeding in
the Bankruptcy case. Mr. Hanson was somewhat resistant on cross-examination by the
Accused and mildly adversarial in demeanor. Although the Panel does not discredit his tes-
timony, we did not give it great weight because (1) We found his demeanor to be less that fully
forthcoming; and (2) much of his testimony was judgmental and inadmissible speculation.
MARY COOPER, Disciplinary Counsel for the Oregon State Bar. Ms. Cooper had
a highly credible demeanor and the Panel gave great weight to her testimony.
ALITA GORMAN, Attorney Representing Brenntag in Litigation. Ms. Gorman
provided background information, including that she used the Accused’s Declaration in the
Motion to Withdraw in an effort to seek sanctions against Goodew/RTT. This witness appeared
credible.
DONNA SMITH, Former Secretary to the Accused. Ms. Smith’s demeanor was
particularly credible, and she demonstrated no apparent adverse views of the Accused. This
witness was very credible, but her testimony was not particularly relevant to the issues in the
proceedings.
TODD GOODEW, Complainant. The Panel had mixed conclusions regarding Mr.
Goodew’s credibility, based on his demeanor. He was fidgeting and hesitant initially. At one
point, when the Panel considered taking a break for the lunch hour, Mr. Goodew became
indignant that he would be made to wait to complete his testimony. Later, he explained that he
was ill, and, as testimony continued, his comfort level improved. Toward the end of the Bar’s
questioning of Mr. Goodew, his demeanor became credible. However, during cross-
examination, Mr. Goodew made very little eye contact with the Accused and claimed a lack of
understanding, which the Panel viewed as resistant and unlikely. Further, Mr. Goodew went
back and forth on some of his answers, with conflicting responses. The Panel found his
multiple “I do not recall” responses not to be credible. Based on his demeanor and interest in
the matter, the Panel credits his testimony with serious caution and does not rely on it for the
basis of its conclusions.
MICHAEL BATLAN, Bankruptcy Trustee. Mr. Batlan’s testimony was highly
credible, informative, and he did not appear to have any sort of bias towards either side in the
matter. The Panel gave great weight to his testimony.
TODD TRIERWEILER, Bankruptcy Attorney expert for the Accused. Mr.
Trierweiler testified by telephone. His testimony was credible to the extent that a person could
demonstrate a demeanor by telephone.
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DAVID HERON, Former Employee of Goodew/RTT. Mr. Heron appeared involun-
tarily. His testimony was severely limited, but the Panel had no reason to doubt his credibility
based on demeanor.
MILLY WHATLEY, Attorney Representing Angeles in Adversarial Proceeding:
Ms. Whatley testified that she took over representing Angeles in the Bankruptcy Adversarial
Proceeding shortly after the Accused indicated to parties that he would be representing
Angeles. Ms. Whatley is an expert in Bankruptcy proceedings, and the Panel found her
testimony to be forthright and highly credible. It did not appear to the Panel that Ms. Whatley
was aware of the extent of the conduct of the Accused.
SCOTT ANDREAS, Former Employee of Goodew/RTT. Mr. Andreas was called
as a witness by the Accused to testify regarding the veracity of his purported signature on a
document. The Panel did not find Mr. Andreas to be credible by demeanor. The Panel further
found his comments about his signature to lack credibility based on his carefully worded
answers regarding his signature. Although the Panel did not find Mr. Andreas’ testimony
credible, the Panel also did not find anything highly relevant in his testimony.
MR. BASHAM, the Accused. The Panel found Mr. Basham credible in demeanor,
though somewhat evasive in some responses. Of note was that Mr. Basham did not seem to
dispute many of the factual allegations, only whether they constituted violations of the Rules
of Professional Conduct. Mr. Basham repeatedly characterized his relationship with his former
client Goodew/RTT to be a war.
Other witnesses who may have testified did not play a significant role in the Panel’s
decision, and the Panel did not have an opinion as to their credibility.
Violations Found
By Clear and Convincing evidence, the Bar has proven:
Violation of RPC 1.6(a) - Confidentiality of Information
The Accused violated RPC 1.6(a) of the Oregon Rules of Professional Conduct by his
unauthorized disclosure and unnecessary use of Goodew/RTT’s confidential information by
using, comparing, and transmitting information about Goodew/RTT’s secret recipes in relation
to initially attempting to purchase the evolved secret recipes from the bankruptcy Trustee, and
again in the course of the bankruptcy Adversarial Action.
The Accused argues that he had an absolute duty to at least notify the trustee about the
recipes he had discovered in his archived email. See 11 USC § 542(a). The Panel agrees with
the Accused’s contention that he had an obligation under the statute, but concludes that he
exceeded the scope of that obligation and violated RPC 1.6(a) when he revealed confidential
information to Trustee Batlan relating to the Accused’s representation of Goodew without
informed consent or within the confines of any exception. The Bar’s contention that the
Accused “pointed out alleged inaccuracies and discrepancies and argued that they were
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evidence of fraud and that the Goodews’ discharge should be set aside,” is a correct basis for
determining that the Accused violated RPC 1.6(a).
Violation of RPC 1.9(a) - Duties to Former Clients (representation of others in related
matter)
The Accused violated RPC 1.9(a) when he represented Angeles, albeit briefly, in the
Adversarial Action against Goodew, as the subject of the action was the perceived discrepancy
between the secret recipes and the evolved secrete recipes, and the Accused obtained the infor-
mation regarding the secret recipes through the course of his representation of Goodew/RTT,
and the Accused failed to secure Goodew/RTT’s written consent to the representation of
Angeles. The Accused’s prior representation of Goodew/RTT, in business, financial, cor-
porate, and recipes litigation, was all “substantially related” to his subsequent representation
of Angeles because there was a substantial risk that confidential factual information obtained
in the prior information of Goodew/RTT would materially advance Angeles’s position in the
subsequent matter.
Violation of RPC 1.9(c) - Duties to Former Clients (use of information to the disadvantage
of former client)
The Accused violated RPC 1.9(c) when he revealed information regarding the secret
recipes to the Trustee in the course of attempting to purchase the evolved secret recipes, and
for the purpose of accusing Goodew of fraud in the bankruptcy proceeding.
Violations Not Found
The Bar has failed to prove by Clear and Convincing Evidence violations of RPC 1.6(a)
as it pertains to the Accused’s disclosure of confidential information in his Declaration for
withdrawal from representation, RPC 3.1, and RPCs 8.4(a)(2) and 8.4(a)(4).
Violation of RPC 1.6(a) - Confidentiality of Information
The Bar alleges Accused violated RPC 1.6(a) of the Oregon Rules of Professional
Conduct by his unauthorized disclosure and unnecessary use of Goodew/RTT’s confidential
information in his withdrawal from representation of RTT in the Brenntag litigation. However,
in a letter to Goodew on November 19, 2010, the Bar declined to pursue this very same
allegation, finding that the Accused had acted within the bounds of the RPC 1.16(b).
Violation of RPC 3.1 - Meritorious Claims and Contentions
The Bar alleges Accused violated RPC 3.1 of the Oregon Rules of Professional
Conduct by asserting a frivolous legal position on behalf of himself and/or Angeles in the
bankruptcy Adversarial Action, in that neither the Accused nor Angeles were a bona fide
creditor of the Goodews, and therefore lacked standing to initiate such a proceeding. The Bar
has failed to prove that the Accused had a complete lack of basis in fact and law to file the
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Adversary Proceeding. The evidence demonstrated that the defamation assertion was neg-
ligently brought, but there is insufficient evidence that there was no basis in fact or law at the
time it was filed. The limitations period begins to run when the plaintiff knows, or in the
exercise of reasonable care should have known, facts that would make a reasonable person
aware of a substantial possibility that he or she had suffered harm that was caused by tortuous
conduct. See ORS 12.120(2); Gaston v. Parsons, 318 Or at 255.
Violation of RPC 8.4(a)(2) - Commission of a Criminal Act that Reflects Adversely on a
Lawyer
The Bar argues that the Accused violated RPC 8.4(a)(2) when he demanded that
Goodew pay him and Angeles $15,000 to be “allowed” to keep his discharged bankruptcy, and
that his conduct rises to the level of the crime of Theft by Extortion. RPC 8.4(a)(2) prohibits
attorneys from committing crimes that reflect adversely on the lawyer’s honesty, trust-
worthiness, or fitness as a lawyer in other respects. Such a violation is a breach of a lawyer’s
fiduciary duty of honesty to his or her clients. However, no criminal proceedings have been
initiated against the Accused regarding any aspect of his representation of Goodew, par-
ticularly regarding the attempt to settle the Adversary Proceeding for $15,000. The Trial Panel
concludes that the Bar has failed to prove by clear and convincing evidence that the Accused’s
settlement efforts, though questionable, contained any misrepresentations or were outside the
scope of permissible settlement efforts.
Violation of RPC 8.4(a)(4) - Engage in Conduct that is Prejudicial to the Administration
of Justice
The Bar contends that the Accused’s baseless interjection of himself into the Goodew’s
bankruptcy was a thinly disguised tool to help him recoup attorney fees for which he had
previously signed a settlement agreement years before. The Bar argues that the Accused caused
a staggering amount of unnecessary litigation in an essentially no asset personal bankruptcy,
and deliberately created and pursued a conflict with his former client by asserting unwarranted
claims. The Bar puts forth that the Accused caused substantial harm to both the procedural
functioning of the bankruptcy court and the substantive interests of the Goodews by serving a
host of harassing and unsupported subpoenas, causing the unnecessary depositions of the
Goodews, himself and Angeles, and basically abused the bankruptcy process to be vindictive
towards Goodew. Although the Accused’s involvement in the bankruptcy proceeding did
violate other areas of the RPCs, the Bar has failed to prove conduct rising to the level of being
prejudicial to the administration of justice.
SANCTION
The Oregon Supreme Court refers to the ABA Standards for Imposing Lawyer Sanc-
tions (“Standards”), in addition to its own case law for guidance in determining the appropriate
sanctions for lawyer misconduct. As noted in the Standards, the purpose of lawyer discipline
“is to protect the public and the administration of justice from lawyers who have not
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discharged, will not discharge, or are unlikely properly to discharge their professional duties
to clients, the public, the legal system, and the legal profession.” Standards § 1.1. The Trial
Panel is required to consider four factors when determining the appropriate sanction for
violations of the Rules of Professional Conduct: 1) the nature of the duty violated; 2) the mental
state of the accused; 3) the actual or potential injury resulting from the conduct; and 4) the
existence of aggravating and mitigating circumstances. Standards § 3.0. See In re Biggs, 318
Or 281, 295, 864 P2d 1310 (1994); In re Spies, 316 Or 530, 541, 852 P2d 831 (1993). The
Panel’s consideration of the factors is also guided by Oregon case law that has interpreted and
supplemented the Standards. “A disciplinary sanction is imposed on a lawyer upon a finding
or acknowledgment that the lawyer has engaged in professional misconduct.” Standards § 2.1.
The final criteria before imposing sanctions are the existence of any aggravating or
mitigating circumstances. In the instant action, The Trial Panel finds several aggravating
factors to be present:
A) Prior history of discipline. Standards § 9.22(a). The Accused has a record of
prior disciplinary offenses:
In 2000, the Accused was admonished for a multiple-client conflict of interest
(DR 105(E), current RPC 1.7(a)).
B) Dishonest or selfish motive. Standards § 9.22(b). The Accused acted vin-
dictively towards Goodew throughout this matter in retaliation for the
breakdown of their attorney-client relationship, which had become the primary
source of the Accused’s income, and the Accused’s ensuing perception that
Goodew had defamed him. The Accused’s motive was to punish Goodew for
the dissolution of their professional relationship.
C) A pattern of misconduct. Standards § 9.22(c). The Accused’s misconduct
began with his withdrawal from representation in the Brenntag litigation, and
may have been emboldened by the Bar’s failure to prosecute him for the content
of his Declaration supporting his motion to withdraw. The Accused thereafter
monitored Goodew’s actions sufficiently to become aware of the bankruptcy
proceeding and interject himself in the proceeding, first by attempting to accuse
Goodew of hiding assets (secret recipes) and, then by inserting himself and
Angeles into the bankruptcy with the Adversary Proceeding.
D) Multiple offense. Standards § 9.22(d). There are both multiple rules implicated
by the Accused’s conduct, and multiple instances of misconduct. The Accused
repeatedly violated a number of rules throughout his prosecution of his former
client in the bankruptcy proceeding.
E) Refusal to acknowledge wrongful nature of conduct. Standards § 9.22(g).
Throughout this proceeding, the Accused did not dispute many of the factual
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assertions, only arguing that they were not ethical violations. The Accused
portrays himself as the victim throughout his representation of Goodew/RTT
and the ensuing bankruptcy litigation. Rather than taking the Bar’s denial of
Goodew’s first complaint against him as a warning that his feud with Goodew
should cease, the Accused became dauntless in his pursuit of reparation for
perceived wrongs by Goodew.
F) Substantial experience in the practice of law. Standards § 9.22(i) The
Accused has been admitted in Oregon since 1990, and has worked in
bankruptcy and business matters a majority of that time.
One mitigating factor is that shortly after the Accused announced he would be
representing Angeles in the Adversarial Proceeding, he abandoned that plan, and attorney
Milly Whatley was retained to represent Angeles.
Sanctions in disciplinary matters are not intended to penalize the accused lawyer, but
“to protect the public and the integrity of the profession.” In re Stauffer, 327 Or 44, 66, 956
P2d 967 (1998). Appropriate discipline deters unethical conduct. In re Kirkman, 313 Or 181,
188, 830 P2d 206 (1992). This case is most closely similar to the conduct described in In re
Lackey, 333 Or 215, 37 P3d 172 (2002), where the Bar charged attorney Lackey with twice
revealing client confidences and secrets in violation of former Disciplinary Rule (“DR”) 4-
101(B) and ORS 9.460(3). Lackey defended, in part, on the theory that his disclosures revealed
allegedly corrupt government practices and, therefore, were exempt from the prohibitions in
former DR 4-101(B) on public-policy grounds. Lackey further contended that one of the
disclosures had involved information that was neither a client secret nor a confidence. The
Oregon Supreme Court rejected those arguments and concluded that the accused had
committed the violation of former DR 4-101(B)(1) to (3) and ORS 9.460(3) on one occasion,
but concluded that the Bar had not met its burden of proving by clear and convincing evidence
that the accused disclosed information that constituted client confidences or secrets on a second
occasion. Accordingly, the Court suspended Lackey for one year. The case at bar is similarly
as aggravated as the facts presented in Lackey, given that the Accused disclosed confidential
information to the Trustee for the purpose of causing harm to his former client in the
bankruptcy proceeding.
On balance, the Trial Panel finds that the Accused’s numerous aggravating factors, and
paucity of mitigating factors, justify the presumptive discipline to be imposed.
The Bar has requested that the Accused be suspended from the practice of law for a
period of at least twenty four (24) months and be required to seek formal reinstatement should
he elect to return to the practice of law in Oregon. The Accused presented scant evidence to
warrant mitigation of any potential penalty, and was in agreement with most of the factual
assertions made by the Bar, only denying that his actions were a violation of the RPCs or that
his claim in the Goodews’ bankruptcy proceeding was frivolous. However, the Bar failed to
Cite as In re Basham, 31 DB Rptr 60 (2017)
72
prove by Clear and Convincing Evidence four of the Rules it alleged the Accused to have
violated. Having considered the authority cited by the Bar, and because of his repeated pattern
of conduct, raising concern that the Accused would engage in similar conduct in the future, the
Trial Panel believes that a suspension from the practice of law for a period of one (1) year is
warranted.
ORDER
For the foregoing reasons, and having found by clear and convincing evidence that the
Accused violated RPC 1.6(a), RPC 1.9(a), and RPC 1.9(c),
IT IS HEREBY ORDERED that the Accused, Jonathan G. Basham, be suspended from
the practice of law in the State of Oregon for a period of one year.
Dated: February 22, 2017.
/s/ Jennifer F. Kimble
Jennifer F. Kimble (OSB # 913375)
Trial Panel Chairperson
/s/ Craig A. Crispin
Craig A. Crispin (OSB # 824852)
Trial Panel Member
/s/ Carrie Bebout
Carrie Bebout
Trial Panel Public Member
Cite as In re Hunt, 31 DB Rptr 73 (2017)
73
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-92
)
J. KEVIN HUNT, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 1.3, RPC 1.4(a), RPC 1.5(c)(3), RPC
1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d).
Stipulation for Discipline. 90-day suspension.
Effective Date of Order: April 27, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by J.
Kevin Hunt and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Hunt is suspended for 90 days, effective upon approval by the Disciplinary Board, for violation
of RPC 1.3; RPC 1.4(a); RPC 1.5(c)(3); RPC 1.15-1(a); RPC 1.15-1(c) and RPC 1.15-1(d).
DATED this 27th day of April, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Andrew Cole
Andrew Cole, Region 7
Disciplinary Board Chairperson
Cite as In re Hunt, 31 DB Rptr 73 (2017)
74
STIPULATION FOR DISCIPLINE
J. Kevin Hunt, attorney at law (“Hunt”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Hunt was admitted by the Oregon Supreme Court to the practice of law in Oregon on
September 14, 1984, and has been a member of the Bar continuously since that time, having
his office and place of business in Clackamas County, Oregon.
3.
Hunt enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On September 9, 2016, a Formal Complaint was filed against Hunt pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
RPC 1.3 [neglect of a legal matter]; RPC 1.4(a) [failure to keep a client reasonably informed
of the status of a matter or promptly comply with reasonable requests for information]; RPC
1.5(c)(3) [collection of a non-refundable fee without adequate disclosures in a written fee
agreement]; RPC 1.15-1(a) [failure to safeguard and keep separate client property]; RPC 1.15-
1(c) [failure to deposit advance fees and costs into trust]; and RPC 1.15-1(d) [failure to
promptly deliver funds client is entitled to receive]. The parties intend that this Stipulation for
Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final dis-
position of the proceeding.
Facts
5.
In December 2014, Hunt was retained by a client (“M.D.”) to file pleadings necessary
for expungement of a juvenile adjudication and an adult criminal conviction. Hunt agreed to
complete M.D.’s legal matter in exchange for a flat fee of $500. In representing M.D., Hunt
believes that he utilized a written fee agreement for the representation, but he has been unable
to locate a copy of such an agreement.
Cite as In re Hunt, 31 DB Rptr 73 (2017)
75
6.
M.D. sent Hunt a $500 check for the flat fee (“Fee Check 1”) and an additional $80
check, payable to Oregon State Police, for a fingerprint search (“Costs Check 1”). In the
absence of a written fee agreement indicating that Hunt’s fee was earned on receipt and
complying with the other requirements of RPC 1.5(c)(3), Fee Check 1 remained client funds.
Although Hunt acknowledged receipt of both Fee Check 1 and Costs Check 1 in early January
2015, he did not deposit Fee Check 1 into his lawyer trust account or take other steps to ensure
that the client’s funds represented by both checks were properly safeguarded until earned or
utilized for their designated purpose.
7.
By the end of January 2015, M.D. completed and returned to Hunt certain paperwork.
There is a dispute as to whether M.D. provided all necessary paperwork to Hunt at this time.
Shortly thereafter, Hunt notified M.D. that he had misplaced Fee Check 1 and Costs Check 1
and asked M.D. to issue new ones. M.D. sent new checks to Hunt in the amount of $500 for
his flat fee (“Fee Check 2”) and $80 payable to Oregon State Police for a fingerprint search
(“Costs Check 2”). In the absence of a written fee agreement indicating that Hunt’s fee was
earned on receipt and complying with the other requirements of RPC 1.5(c)(3), at least a
portion of Fee Check 2 remained client funds. Hunt did not deposit Fee Check 2 into his lawyer
trust account or take other steps to ensure that the client funds represented by both checks were
properly safeguarded until earned or utilized for their designated purpose.
8.
M.D. heard nothing further from Hunt until late March 2015, when Hunt informed
M.D. that he would file the documents shortly. However, he did not do so. And during April,
May and June of 2015, despite inquiries from M.D. for information and status updates as to
her case, Hunt did not complete the documents necessary for expungement of M.D.’s juvenile
and criminal records.
9.
In late June 2015, Hunt advised M.D. that a new law relating to expungement would
be going into effect later in the summer and that it would be favorable to M.D. to wait for the
law to take effect. In accordance with Hunt’s advice, M.D. allowed Hunt additional time to
allow the new law to become effective and for him to complete her expungement matter.
10.
M.D. heard nothing from Hunt about her case between early July and mid-September
2015, despite requests for information. On September 19, 2015, Hunt told M.D. that new forms
would need to be completed.
Cite as In re Hunt, 31 DB Rptr 73 (2017)
76
11.
By the end of September 2015, M.D. had completed and returned to Hunt the requested
papers. Hunt acknowledged receipt of these materials on October 3, 2015.
12.
On December 28, 2015, Hunt disclosed to M.D. that he had misplaced her entire client
file, and had not yet filed any pleadings on her behalf. M.D. terminated Hunt’s representation
and demanded a refund of her payments to Hunt.
13.
Hunt did not refund the unearned portion of Fee Check 2 or Costs Check 2 because he
lacked the funds to do so. Hunt advised M.D. to make a claim on the Client Security Fund,
which was ultimately approved.
Violations
14.
Hunt admits that by failing to timely accomplish his client’s objectives, he neglected a
legal matter entrusted to him, in violation of RPC 1.3. Hunt further admits that his failures to
respond to M.D.’s reasonable requests for information violated RPC 1.4(a).
Hunt admits that by failing to place his client’s fees in a lawyer trust account in the
absence of a locatable written fee agreement, he violated RPC 1.5(c)(3) and RPC 1.15-1(c). In
misplacing M.D.’s checks and file, Hunt also admits that he failed to safeguard client property,
in violation of RPC 1.15-1(a). Finally, Hunt admits that his failure to deliver funds M.D. was
entitled to receive violated RPC 1.15-1(d).
Sanction
15.
Hunt and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Hunt’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Hunt violated his duties to his client to preserve his client’s
property and to act with reasonable diligence and promptness in representing
her, including the duty to adequately communicate with her. Standards §§ 4.1,
4.4. The Standards provide that the most important duties a lawyer owes are
those owed to clients. Standards at 5.
b. Mental State. There are three recognized mental states under the Standards.
“Intent” is the conscious objective or purpose to accomplish a particular result.
Cite as In re Hunt, 31 DB Rptr 73 (2017)
77
Standards at 9. “Knowledge” is the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result. Standards at 9. “Negligence” is the
failure of a lawyer to heed a substantial risk that circumstances exist or that a
result will follow, which failure is a deviation from the standard of care that a
reasonable lawyer would exercise in the situation. Standards at 9. In con-
sideration of Hunt’s personal and physical problems during the material time
period, Hunt generally acted negligently in this matter. His conduct was
arguably knowing, to the extent that he failed to act or respond to his client
following her multiple attempts to communicate with him.
c. Injury. An injury need not be actual, but only potential, to support the impo-
sition of a sanction. Standards at 6. Injury can either be actual or potential under
the Standards. See In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992).
Hunt’s client was actually injured to the extent that she paid for services that
did not benefit her. See, e.g., In re Parker, 330 Or 541, 547, 9 P3d 107 (2000).
Further, the lack of communication caused actual injury in the form of client
anxiety and frustration. See In re Knappenberger, 337 Or 15, 23, 90 P3d 614
(2004); In re Obert, 336 Or 640, 652, 89 P3d 1173 (2004); In re Cohen, 330 Or
489, 496, 8 P3d 953 (2000) (client anxiety and frustration as a result of the
attorney neglect can constitute actual injury under the Standards); In re
Schaffner, 325 Or 421, 426–27, 939 P2d 39 (1997); In re Arbuckle, 308 Or 135,
140, 775 P2d 832 (1989).
d. Aggravating Circumstances. Aggravating circumstances include:
1. A prior record of relevant discipline. Standards § 9.22(a). Hunt was
admonished in 1993 for a violation of DR 6-101(B) (current RPC 1.3 &
RPC 1.4(a)) (neglect of a legal matter, including failing to adequately
communicate with a client). Specifically, Hunt was retained in early
1990 to assist a client in expunging a criminal conviction. Thereafter
and until November 1992, Hunt failed to communicate with his client
and failed to advance the client’s legal matter. In re Hunt, OSB Case
No. 93-37, Ltr of Adm (Apr 2, 1993) (“Hunt I”). A letter of admonition
is considered as evidence of past misconduct if the misconduct that gave
rise to that letter was of the same or similar type as the misconduct at
issue in the case at bar. In re Cohen, 330 Or at 500.
Hunt was reprimanded in 2007 for violations of RPC 1.4(a) and RPC
8.1(a)(2) (failure to respond to requests from a disciplinary authority) in
connection with Hunt’s pro bono representation of a client in a potential
appeal of an unemployment benefits compensation matter. Hunt did not
adequately and fully communicate with his client in response to her
Cite as In re Hunt, 31 DB Rptr 73 (2017)
78
inquiries about her matter. When Hunt’s client complained to the Bar,
Hunt was initially responsive to the Bar’s inquiries. However, Hunt did
not respond to follow-up inquiries from the Bar requesting additional
details. Believing that he had already provided responsive information,
Hunt made no further response to the Bar, despite additional cor-
respondence from the Bar requesting that he do so. In re Hunt, 21 DB
Rptr 29 (2007) (“Hunt II”). As with this matter, Hunt II involved a
failure to adequately communicate with his client.
Hunt was again reprimanded in 2011 for violations of RPC 1.4(a) and
RPC 1.4(b) (failure to explain a matter to the extent necessary to enable
his client to make informed decision regarding the representation). In re
Hunt, 25 DB Rptr 233 (2011) (“Hunt III”). In that matter, Hunt
represented a client pro bono at a hearing on a petition for modification
of child custody filed by the client’s ex-husband. Thereafter, counsel for
the client’s ex-husband sent drafts of the proposed judgment and a
request for attorney fees to Hunt. Hunt did not provide copies of the
drafts to his client or consult with his client about the content of the draft
judgments or the request for attorney fees. Subsequently, the court
notified Hunt that it had signed and entered the supplemental judgment
against Hunt’s client for attorney fees. Hunt did not send a copy of the
supplemental judgment to the client or otherwise notify her that it had
been entered. Similar to Hunt II and this matter, Hunt III related to
Hunt’s failure to adequately communicate information to his client.
2. Multiple offenses. Standards § 9.22(d). Hunt’s conduct involved
neglect, communication issues, and a failure to properly safeguard and
manage client funds.
3. Substantial experience in the practice of law. Standards § 9.22(i). Hunt
has been a lawyer in Oregon since 1984.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards § 9.32(b).
2. Personal problems. Standards § 9.32(c). During at least some of the
time relevant to his misconduct in this matter, Hunt was dealing with
the disruption and collapse of his law practice related to debilitating
health issues, and other serious personal challenges. Among these were
difficulties he reports managing matters related to a dying parent in
another state, PTSD related to police activity against him that was found
Cite as In re Hunt, 31 DB Rptr 73 (2017)
79
to be unwarranted, in conjunction with the interruption of his medica-
tion (see subparagraph 4, infra), significantly impaired his ability to
restore order to his practice environment.
3. Cooperative attitude toward disciplinary proceedings. Standards
§ 9.32(e).
4. Physical disability. Standards § 9.32(h). Hunt suffered an interruption
in his healthcare, including his access to prescription medications that
led to debilitating health issues during the time period relevant to this
matter, all of which caused him to suffer a disruption of his practice.
5. Remorse. Standards § 9.32(l). Hunt has expressed extreme remorse for
his conduct in this matter and inability to refund his client’s payments.
Hunt appreciates the seriousness of his conduct and the impact upon his
client.
6. Remoteness of prior offense. Standards § 9.32(m). The conduct at issue
in Hunt I was more than 20 years old at the time of Hunt’s actions in
this matter.
16.
Under the Standards, reprimand is generally appropriate when a lawyer is negligent in
dealing with client property and causes injury or potential injury to a client. Standards § 4.13.
Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for
a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of
neglect and causes injury or potential injury to a client. Standards § 4.42. The substantial
aggravation created by Hunt’s prior similar discipline is tempered in large part by Hunt’s sig-
nificant mitigation. Nonetheless, on balance, a suspension is still warranted under the
Standards for Hunt’s conduct.
17.
Oregon case law also supports the imposition of a suspension in this matter. See In re
Knappenberger, 337 Or at 32–33 (court stated that it has generally imposed a 60-day
suspension is appropriate for neglectful conduct, including failing to adequately communicate
with clients). See also In re Castanza, 350 Or 293, 253 P3d 1057 (2011) (attorney suspended
for 60 days where he improperly withdrew from representing two clients in a civil action, and
neglected other aspects of the case); In re Snyder, 348 Or 307, 232 P3d 952 (2010) (attorney
suspended for 30 days for failing to adequately communicate with his client); In re Obert
, 352
Or at 262–64 (attorney suspended 6 months, in part for taking a credit-card payment from a
client and depositing it directly into his business account without a written agreement allowing
him to do so and before the fee was earned); In re Balocca, 342 Or 279, 151 P 3d 154 (2007)
(attorney was suspended for 90 days for failing to deposit and hold client funds in trust without
Cite as In re Hunt, 31 DB Rptr 73 (2017)
80
a clear written agreement that payment by his client was a nonrefundable retainer earned on
receipt; even though attorney believed that such an agreement existed, he could not locate it).
18.
Consistent with the Standards and Oregon case law, the parties agree that Hunt shall
be suspended for 90 days for his violations of RPC 1.3; RPC 1.4(a); RPC 1.5(c)(3); RPC 1.15-
1(a); RPC 1.15-1(c); and RPC 1.15-1(d), effective upon approval by the Disciplinary Board.
19.
Hunt acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Hunt has arranged for
Richard L. Wolf (12940 NW Marina Way, Slip A, Portland, OR 97231), an active member of
the Bar, to either take possession of or have ongoing access to Hunt’s client files and to serve
as the contact person for clients in need of the files and appearances by counsel during the term
of suspension. Hunt represents that Richard L. Wolf has agreed to accept this responsibility.
20.
Hunt acknowledges that reinstatement is not automatic on expiration of the period of
suspension. He is required to comply with the applicable provisions of Title 8 of the Bar Rules
of Procedure. Hunt also acknowledges that he cannot hold himself out as an active member of
the Bar or provide legal services or advice until he is notified that his license to practice law
has been reinstated.
21.
Hunt acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Hunt to attend or obtain continuing legal education
(CLE) credit hours.
22.
Hunt represents that, in addition to Oregon, he also has been admitted to practice law
in the courts listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar may be informing these courts of the final disposition of this
proceeding. Other courts in which Hunt has been admitted: the Supreme Court of the United
States, the United States Court of Appeals for the Ninth Circuit, and the United States District
Court for the District of Oregon.
Cite as In re Hunt, 31 DB Rptr 73 (2017)
81
23.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 19th day of April, 2017.
/s/ J. Kevin Hunt
J. Kevin Hunt
OSB No. 842529
EXECUTED this 24th day of April, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey
OSB No. 060478
Assistant Disciplinary Counsel
Cite as In re McElroy, 31 DB Rptr 82 (2017)
82
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-155
)
THOMAS P. MCELROY, )
)
Accused. )
Counsel for the Bar: Theodore W. Reuter
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 1.7(a)(2) and RPC 1.8(a). Stipulation
for Discipline. Public Reprimand.
Effective Date of Order: May 1, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Thomas P. McElroy and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Thomas P. McElroy is publically reprimanded for violation of RPC 1.7(a)(2) and RPC 1.8(a).
DATED this 1 day of May, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Thomas P. McElroy, attorney at law (“McElroy”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re McElroy, 31 DB Rptr 82 (2017)
83
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
McElroy was admitted by the Oregon Supreme Court to the practice of law in Oregon
on April 20, 2001, and has been a member of the Bar continuously since that time, having his
office and place of business in Multnomah County, Oregon.
3.
McElroy enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On October 22, 2016, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against McElroy for alleged violations of RPC 1.7(a)(2) [self-
interest conflict of interest]; and RPC 1.8(a) [improper business transaction with a client] of
the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth all
relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
McElroy began representing Tara Cornforth-Sprague (“Sprague”) in relation to her
domestic relations matter in December of 2012. McElroy continued to represent Sprague in
her divorce until February 2015.
6.
In May 2013, McElroy hired Sprague as an employee in his law firm. Sprague and
McElroy were on good terms and had oral discussions regarding the terms of their relationship.
However, McElroy had an obligation to set out the terms of that employment in writing, to
advise Sprague to seek legal counsel, and to obtain her confirmed consent in writing. McElroy
did not do so.
7.
In October 2012, McElroy told Sprague that he could no longer afford to pay her salary.
McElroy and Sprague negotiated a new agreement, whereby Sprague would continue to work
to offset her legal bill to McElroy and McElroy would settle the additional amount owed to
Sprague after selling some real estate he had inherited. McElroy had an obligation to set out
the new terms of employment in writing, to advise Sprague to seek legal counsel, and to obtain
Cite as In re McElroy, 31 DB Rptr 82 (2017)
84
her confirmed consent in writing. McElroy did not do so. These new terms of employment
were also not in compliance with state and federal laws regulating employment.
Violations
8.
McElroy admits that there was a significant risk that his representation of Sprague was
impaired by his own interest in the employment contract between himself and Sprague, and
that he did not advise Sprague of that risk or seek Sprague’s consent to that conflict of interest,
in violation of RPC 1.7(a)(2).
9.
McElroy further admits that, by negotiating employment with his current client, he
entered into a business transaction with a client, without ensuring that the terms were fair and
reasonable to his client and set forth in a writing in a manner that could be reasonably
understood by his client. He also acknowledges that he also failed to advise his client in writing
of the desirability of seeking independent counsel before agreeing to the transaction, and failed
to obtain her informed consent, in violation of RPC 1.8(a).
Sanction
10.
McElroy and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that McElroy’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. McElroy violated his duty to his client to avoid conflicts of
interest. Standards § 4.3.
b. Mental State. McElroy acted negligently with respect to his obligation to avoid
conflicts of interest. “Negligence” is the failure of a lawyer to heed a substantial
risk that circumstances exist or that a result will follow, which failure is a
deviation from the standard of care that a reasonable lawyer would exercise in
the situation. Standards at 9.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Here, Sprague was deprived
of the protections afforded by the requirements of RPC 1.7(a)(2) and RPC
1.8(a) that McElroy did not follow in initially hiring her and in striking the
agreement for her to continue working without the usual benefits of being an
employee, including a regular paycheck, having withholding taxes paid, and
being covered by unemployment insurance.
Cite as In re McElroy, 31 DB Rptr 82 (2017)
85
d. Aggravating Circumstances. Aggravating circumstances include:
a. Prior disciplinary offenses. Standards § 9.22(a). McElroy was pre-
viously reprimanded in 2011, for violations of RPC 1.15-1(a) & (c)
[failure to deposit and maintain client funds in trust and maintain
complete records regarding them]. In re McElroy, 25 DB Rptr 224
(2011). That conduct is dissimilar to that at issue in this matter.
b. Vulnerability of the victim. Standards § 9.22(h). As both a client and an
employee of McElroy, Sprague had less ability than the usual client to
speak up in defense of her own interests.
c. Substantial experience in the practice of law. Standards § 9.22(i).
McElroy has been practicing law in Oregon for more than 15 years.
e. Mitigating Circumstances. Mitigating circumstances include:
a. Full and free disclosure and cooperation with the Disciplinary Counsel’s
Office. Standards § 9.32(e). McElroy promptly and fully responded to
the Bar’s inquires in this matter.
b. Remorse. Standards § 9.32(l). McElroy expressed remorse for his
actions as well as any unforeseen consequences of those actions.
11.
Under the ABA Standards, a reprimand is generally appropriate when a lawyer is
negligent in determining whether the representation of a client may be materially affected by
the lawyer’s own interests, or whether the representation will adversely affect another client,
and causes injury or potential injury to a client. Standards § 4.33.
12.
Oregon case law also supports that a public reprimand is appropriate for a conflict of
interest related to doing business with a client where there are not multiple offenses or
significant prior history. See, e.g., In re Seligson, 27 DB Rptr 314 (2013) (attorney took
security interest from client to secure attorney’s fees); In re Ghiorso, 27 DB Rptr 110 (2013)
(attorney became co-borrower with client and either loaned or advanced same client fees).
13.
Consistent with the Standards and Oregon case law, the parties agree that McElroy
shall be publically reprimanded for violations of RPC 1.7(a)(2) and RPC 1.8(a), the sanction
to be effective upon approval of the Disciplinary Board.
14.
McElroy acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
Cite as In re McElroy, 31 DB Rptr 82 (2017)
86
suspension. This requirement is in addition to any other provision of this agreement that
requires McElroy to attend or obtain continuing legal education (CLE) credit hours.
15.
McElroy represents that, in addition to Oregon, he also is admitted to practice law in
the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which McElroy is admitted: none.
16.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 23rd day of March, 2017.
/s/ Thomas P. McElroy
Thomas P. McElroy
OSB No. 010763
EXECUTED this 27th day of March, 2017.
OREGON STATE BAR
By: /s/Theodore W. Reuter
Theodore W. Reuter
OSB No. 084529
Assistant Disciplinary Counsel
Cite as In re Merkel, 31 DB Rptr 87 (2017)
87
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-02
)
WILLARD MERKEL, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: Stephen P. Rickles
Disciplinary Board: None
Disposition: Violation of RPC 1.15-1(a) and RPC 1.15-2(b).
Stipulation for Discipline. 30-day suspension, all
stayed, pending 1-year probation.
Effective Date of Order: May 12, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Willard Merkel and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Willard Merkel is suspended for 30 days, with all of the suspension stayed, pending Merkel’s
successful completion of a one-year term of probation, effective ten days after approval by the
Disciplinary Board for violation of RPC 1.15-1(a) and RPC 1.15-2(b).
DATED this 2 day of May, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Merkel, 31 DB Rptr 87 (2017)
88
STIPULATION FOR DISCIPLINE
Willard Merkel, attorney at law (“Merkel”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Merkel was admitted by the Oregon Supreme Court to the practice of law in Oregon
on April 20, 1979, and has been a member of the Bar continuously since that time, having his
office and place of business in Multnomah County, Oregon.
3.
Merkel enters into this Stipulation for Discipline freely, voluntarily, and with the advice
of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On July 12, 2016, a Formal Complaint was filed against Merkel pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
RPC 1.15-1(a) [failure to hold funds belonging to clients or third persons separate from
lawyer’s own property]; RPC 1.15-1(d) [failure to notify a third person of receipt of funds and
to promptly deliver funds a third person is entitled to receive]; RPC 1.15-2(b) [failure to deposit
client funds into IOLTA account (with interest paid to Oregon Law Foundation) unless net
interest can be earned for the client]; and RPC 8.4(a)(3) [conduct involving dishonesty or
misrepresentation]. The parties intend that this Stipulation for Discipline set forth all relevant
facts, violations and the agreed-upon sanction as a final disposition of the proceeding.
Facts
5.
In late October 2014, Merkel settled a personal injury case on behalf of his client, the
plaintiff, for $62,500. Pursuant to their contingent fee agreement, Merkel’s client was entitled
to $45,000 of the settlement funds.
6.
In early November 2014, defendant’s insurer sent Merkel a check (the “settlement
check”) in the amount of $62,500, which represented the settlement proceeds. In mid-
November 2014, Merkel deposited the settlement check into his business account—not his
lawyer trust account. In late November 2014, Merkel wrote a check in the amount of $45,000
Cite as In re Merkel, 31 DB Rptr 87 (2017)
89
from his business account to his client as full payment for his client’s portion of the settlement
proceeds, which the client negotiated in mid-December 2014.
Violations
7.
Merkel admits that, by failing to deposit and maintain client funds separate from his
own in an interest-bearing lawyer trust account, he violated RPC 1.15-1(a) and RPC 1.15-2(b).
Upon further factual inquiry, the parties agree that the charges of RPC 1.15-1(d) and
RPC 8.4(a)(3) should be and, upon the approval of this stipulation, are dismissed.
Sanction
8.
Merkel and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Merkel’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. The most important ethical duties a lawyer owes are those owed
to clients. Standards at 5. By failing to deposit and maintain client funds in
trust, Merkel violated his duty to preserve client property. Standards § 4.12.
b. Mental State. When Merkel deposited and held client funds in his business
account instead of his trust account, he acted knowingly, which is with the
conscious awareness of the nature or attendant circumstances of his conduct but
without the conscious objective or purpose to accomplish a particular result.
Standards at 9.
c. Injury. Merkel’s conduct resulted in potential injury to his client in that the
client’s funds were not protected from Merkel’s potential creditors in the inter-
vening time period. Merkel’s conduct resulted in actual injury to the Oregon
Law Foundation in that it did not receive interest on those funds for the period
of time the funds were in Merkel’s business account.
d. Aggravating Circumstances. Aggravating factors include:
1. Prior discipline. Merkel was publicly reprimanded by a trial panel in
2007 for violations of RPC 4.1(a) [false statement of material fact or
law to a third person] and RPC 8.4(a)(3) [conduct involving dishonesty
or misrepresentation] after he asserted to opposing counsel that a statute
on which opposing counsel’s client had relied had been found uncon-
stitutional by the court of appeals, when Merkel knew that was untrue,
Cite as In re Merkel, 31 DB Rptr 87 (2017)
90
as he had been counsel for one of the parties in the referenced appeal.
In re Merkel, 21 DB Rptr 211 (2007). Standards § 9.22(a).
2. Substantial experience in the practice of law. Merkel had practiced law
in Oregon for over 30 years at the time of the misconduct at issue.
Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating factors include:
1. Absence of a selfish motive. Standards § 9.32(b).
9.
Under the ABA Standards, a suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12.
10.
Prior Oregon cases indicate that a reprimand to a short suspension is an appropriate
sanction for an attorney’s mishandling of client property in similar circumstances. See In re
Fadeley, 342 Or 403, 153 P3d 682 (2007) (attorney suspended for 30 days when he relied on
oral agreement with clients and deposited client funds into personal checking account rather
than lawyer trust account); In re Coran, 27 DB Rptr 170 (2013) (30-day suspension, all stayed
pending a 24-month probation, when a lawyer failed to promptly return the client file in one
matter and failed to deposit advance fees and costs into trust in another. The case was
aggravated by prior discipline, as Coran had previously been reprimanded three times, once
for improperly handling an advance fee); In re Kleen, 27 DB Rptr 213 (2013) (attorney publicly
reprimanded after he collected advance costs to hire an expert in his client’s case but never
retained an expert, and did not refund the advance for eight months after he withdrew from
representation. Kleen also engaged in neglect and failed to communicate with this client.
Aggravating factors included substantial experience; mitigating factors included lack of prior
discipline); and In re Smith, 23 DB Rptr 172 (2009) (attorney publicly reprimanded after he
accepted a flat fee to file for a name change and failed to deposit the fee into his lawyer trust
account, even though he did not have a written fee agreement that provided that the funds were
earned on receipt and nonrefundable). Merkel’s misconduct is aggravated by his prior discipline
and substantial experience and mitigated by a lack of a selfish motive; as a result a reprimand
would be inappropriate, and a short, stayed suspension is warranted.
11.
BR 6.2 recognizes that probation can be appropriate and permits a suspension to be
stayed pending the successful completion of a probation. See also Standards § 2.7 (probation
can be imposed alone or with a suspension and is an appropriate sanction for conduct which
may be corrected). In addition to a period of suspension, a period of probation designed to
Cite as In re Merkel, 31 DB Rptr 87 (2017)
91
ensure the adoption and continuation of better practices will best serve the purpose of pro-
tecting clients, the public, and the legal system.
12.
Consistent with the Standards and Oregon case law, the parties agree that Merkel shall
be suspended for 30 days for violations of RPC 1.15-1(a) and RPC 1.15-2(b), with all of the
suspension stayed pending Merkel’s successful completion of a one-year term of probation.
The sanction shall be effective ten days after this stipulation is approved, or as otherwise
directed by the Disciplinary Board (“the effective date”).
13.
Probation shall commence upon the effective date, and shall continue for a period of
one year, ending on the day prior to the first year anniversary of the effective date (the “period
of probation”). During the period of probation Merkel shall abide by the following conditions:
(a) Merkel shall comply with all provisions of this Stipulation for Discipline, the
Rules of Professional Conduct applicable to Oregon lawyers, and ORS Chapter
9.
(b) Within 7 days of the effective date, Merkel shall contact the Professional
Liability Fund (PLF) and schedule an appointment on the soonest date available
to consult with PLF practice management advisors in order to obtain practice
management advice. Merkel shall schedule the first available appointment with
the PLF and notify the Bar of the time and date of the appointment.
(c) Merkel shall attend the appointment with the PLF practice management advisor
and seek advice and assistance regarding procedures for properly and ethically
managing client and third party funds and his trust accounts. No later than 30
days after recommendations are made by the PLF, Merkel shall adopt and
implement those recommendations.
(d) No later than 60 days after recommendations are made by the PLF, Merkel shall
provide a copy of the Office Practice Assessment from the PLF and file a report
with Disciplinary Counsel’s Office stating the date of his consultation(s) with
the PLF; identifying the recommendations that he has adopted and imple-
mented; and identifying the specific recommendations he has not implemented
and explaining why he has not adopted and implemented those recom-
mendations.
(e) Greg Zeuthen shall serve as Merkel’s probation supervisor (“Supervisor”).
Merkel shall cooperate and comply with all reasonable requests made by
Supervisor that Supervisor, in his or her sole discretion, determines are designed
to achieve the purpose of the probation and the protection of Merkel’s clients,
the profession, the legal system, and the public. Beginning with the first month
Cite as In re Merkel, 31 DB Rptr 87 (2017)
92
of the period of probation, Merkel shall meet with Supervisor in person at least
once a month for the purpose of allowing his supervisor to inspect and review
Merkel’s accounting and record keeping systems, including his trust account
and operating account transactions, to confirm that Merkel is properly
depositing client or third party funds in trust, and if not, that Merkel has a fee
agreement or other documentation to support an alternative arrangement. Each
month during the period of probation, Supervisor shall conduct a random audit
of Merkel’s trust account and operating account to determine whether Merkel
is timely, competently, diligently, and ethically handling client and third party
funds. Merkel agrees that Supervisor may contact, communicate with and seek
information from all employees and independent contractors who assist Merkel
in his banking transactions or handling client or third party funds, and that
Merkel will authorize all such persons to respond and provide information as
requested by Supervisor.
(f) During the period of probation, Merkel shall attend not less than six MCLE
accredited programs, for a total of twelve hours, which shall emphasize law
practice management and proper trust account management. These credit hours
shall be in addition to those MCLE credit hours required of Merkel for his
normal MCLE reporting period. The Ethics School requirement does not count
towards the twelve hours needed.
(g) Each month during the period of probation, Merkel shall review all client files
to ensure that he is appropriately depositing and maintaining client and third
party funds in trust unless and until those funds have been earned.
(h) On a quarterly basis, on dates to be established by Disciplinary Counsel begin-
ning no later than 90 days after his reinstatement to active membership status,
Merkel shall submit to Disciplinary Counsel’s Office a written “Compliance
Report,” approved as to substance by Supervisor, advising whether Merkel is
in compliance with the terms of this agreement. In the event that Merkel has not
complied with any term of the agreement, the Compliance Report shall describe
the noncompliance and the reason for it.
(i) Merkel authorizes Supervisor to communicate with Disciplinary Counsel
regarding his compliance or noncompliance with the terms of this agreement,
and to release to Disciplinary Counsel any information necessary to permit
Disciplinary Counsel to assess Merkel’s compliance.
(j) Merkel is responsible for any costs required under the terms of this Stipulation
and the terms of probation.
(k) Merkel’s failure to comply with any term of this agreement, including con-
ditions of timely and truthfully reporting to Disciplinary Counsel’s Office, or
Cite as In re Merkel, 31 DB Rptr 87 (2017)
93
with any reasonable request of Supervisor, shall constitute a basis for the
revocation of probation and imposition of the stayed portion of the suspension.
(l) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to
Disciplinary Counsel on or before its due date.
(m) The SPRB’s decision to bring a formal complaint against Merkel for unethical
conduct that occurred or continued during the period of his probation shall also
constitute a basis for revocation of the probation and imposition of the stayed
portion of the suspension.
14.
In addition, on or before May 1, 2017, Merkel shall pay to the Bar its reasonable and
necessary costs in the amount of $461.35, incurred for deposition costs. Should Merkel fail to
pay $461.35 in full by May 1, 2017, the Bar may thereafter, without further notice to him,
obtain a judgment against Merkel for the unpaid balance, plus interest thereon at the legal rate
to accrue from the date the judgment is signed until paid in full.
15.
In the event Merkel’s probation is revoked and the stayed suspension imposed, Merkel
acknowledges that he has certain duties and responsibilities under the Rules of Professional
Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable prejudice to
his clients during the term of his suspension. Should this contingency occur, Merkel will
arrange for an active member of the Bar to either take possession of or have ongoing access to
Merkel’s client files and serve as the contact person for clients in need of the files during the
term of his suspension. Additionally, Merkel will immediately (within 72 hours of notice of
the revocation) provide DCO with the name of the attorney who agrees to accept this respon-
sibility.
16.
In the event Merkel’s probation is revoked and the stayed suspension imposed, Merkel
acknowledges that reinstatement is not automatic on expiration of the period of suspension and
that he is required to comply with the applicable provisions of Title 8 of the Bar Rules of
Procedure. Merkel also acknowledges that during any term of suspension, he cannot hold
himself out as an active member of the Bar or provide legal services or advice until he is
notified that his license to practice law has been reinstated.
17.
Merkel acknowledges that he is subject to the “Ethics School” requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
Cite as In re Merkel, 31 DB Rptr 87 (2017)
94
provision of this agreement that requires Merkel to attend or obtain continuing legal education
(CLE) credit hours.
18.
Merkel represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Merkel is admitted: none.
19.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 26th day of April, 2017.
/s/ Willard Merkel
Willard Merkel
OSB No. 790852
EXECUTED this 1st day of May, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett
OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Henderson, 31 DB Rptr 95 (2017)
95
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-88
)
PAUL LARS HENDERSON, III, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: None
Disciplinary Board: John E. Davis, Chairperson
Joel Benton
Thomas W. Pyle, Public Member
Disposition: Violation of RPC 1.3; RPC 1.4(a); RPC 1.16(a)(1);
RPC 1.16(d); and RPC 8.1(a)(2). Trial Panel Opinion.
4-month suspension.
Effective Date of Opinion: May 9, 2017
TRIAL PANEL OPINION
The Oregon State Bar filed a formal Complaint in this matter on October 28, 2016 in
Case No. 16-88. The Accused was personally served with the formal Complaint on November
9, 2016. The Accused did not file an answer to the formal Complaint. The Accused was served
with the Notice of Intent to take a default by mail on November 28, 2016. Based on the Motion
for Default dated December 19, 2016 which was mailed to the Accused on December 19, 2016
an Order of Default was granted and signed by the Region 3 Panel Chairperson on December
21, 2016. The Trial Panel agreed to decide the sanction without a hearing. The Bar submitted
trial memoranda regarding Sanctions on February 7, 2017. The Accused submitted nothing.
Nature of Charges and Defenses
The Bar has alleged five causes of Complaint against the Accused.
1) Neglect of a Legal Matter. The Bar asserts the Accused neglected a legal
matter entrusted to him in violation of RPC 1.3.
Cite as In re Henderson, 31 DB Rptr 95 (2017)
96
2) Lack of Communication. The Bar asserts the Accused failed to keep Mrs.
Malgorejo informed about the status of her case and to properly comply with
her reasonable request for information in violation of RPC 1.4a.
3) Failure to Withdraw. The Bar asserts the Accused although unable to practice
law remained Mrs. Malgorejo’s attorney of record in the post judgment dissolu-
tion proceeding and took no steps to withdraw. The Bar asserts the Accused
failed to withdraw from the case when suspended violated RPC 1.16(a)(1).
4) Failure to return client’s property at the termination of the representation.
The Bar asserts the Accused did not inform Mrs. Malgorejo that he had been
administratively suspended and that he could no longer and would no longer
represent her or act on behalf of her in the postjudgment decree proceeding.
The Bar asserts the Accused failed to forward to Mrs. Malgorejo a copy of her
file or refund any funds she paid in advance.
The Bar asserts this conduct violates RPC 1.16(d), which provides that on
termination of representation a lawyer shall take steps to the extent reasonably
practicable to protect the client’s interest such as giving reasonable notice to the
client and allow time for employment of other counsel and surrendering papers
and property which a client is entitled and refunding any advanced payment of
fees or expenses that have not been earned or incurred.
5) Failure to Respond. The Bar asserts that the Accused failed to respond to
disciplinary counsel in violation of RPC 8.1(a)(2) .
SUMMARY OF UNDISPUTED FACTS
All facts are undisputed as Henderson did not appear and an order of default has been
entered.
CONCLUSIONS OF LAW
1) First Cause of Complaint
a) Neglect of a Legal Matter. In or around 2012, Guadalupe Rios
Malgorejo [“Husband”] filed a pro se petition for dissolution of
marriage [“petition”] from Micaela Malgorejo [“Wife”]. Wife hired
Henderson to respond to the petition.
A judgment of dissolution [“judgment”] was entered on or about
December 26, 2014, in which Wife was awarded indefinite spousal
support.
In or around February 2015, Husband hired an attorney, who moved to
vacate the judgment and for a new trial. Husband’s attorney served
Henderson with the pleadings, and Henderson appeared for Wife at a
Cite as In re Henderson, 31 DB Rptr 95 (2017)
97
March 20, 2015, hearing, at which Henderson stipulated to reopening
the judgment for the limited purpose of modifying the property award
and to permit additional evidence on spousal support. In exchange,
Husband agreed to withdraw his motion for a new trial and to vacate the
judgment. After March 30, 2015, Henderson did not respond to any of
Husband’s counsel’s attempts to confer.
b) Lack of Communication. Beginning in or around October 2015,
Henderson ceased returning Wife’s phone calls requesting that
Henderson provide her with information and status updates about her
case. When Wife last spoke with Henderson in October 2015,
Henderson apologized for not returning her calls and promised to call
her when he returned to his office from Portland. He did not do so. Wife
was forced to consult with new counsel, Laura Lindley-Gutierrez
[“Lindley-Gutierrez”] in her matter.
c) Failure to return client’s property. After their last phone conversation
in October 2015, Henderson did not inform Wife of any of the
postjudgment developments in her case. Henderson did not respond to
Wife’s or Lindley-Gutierrez’s efforts to obtain a copy of her file or a
refund of any of the money she paid him in advance for his legal services
in the post-judgment matter.
d) Failure to Withdraw. On or about May 3, 2016, Henderson was admin-
istratively suspended for failing to pay his Bar membership assessment
and failing to submit his 2015 IOLTA compliance report. Between May
3, 2016, and the filing of this Formal Complaint, Henderson did not seek
reinstatement.
Despite his May 3, 2016, suspension, Henderson failed to withdraw as
Wife’s attorney of record in her matter. Henderson failed to inform Wife
of his suspension and failed to inform her that he was no longer
representing her in her matter, including the postjudgment proceedings.
In late June 2016, Husband’s attorney filed a motion to set trial on the
property division and spousal support. In his motion, Husband’s
attorney certified that Henderson had not responded to his attempts to
confer, that Henderson had been suspended, and that Henderson’s
phone number on record with the Bar was no longer in service. The
court set the matter for trial.
2) Second Cause of Complaint. The facts as outlined above are incor-
porated herein
Cite as In re Henderson, 31 DB Rptr 95 (2017)
98
Pursuant to BR 2.6, Disciplinary Counsel’s Office [“DCO”], dis-
ciplinary authorities for the Bar, sent by first-class mail and email,
multiple letters to Henderson, at his office and email addresses of record
with the Bar, requesting information regarding Wife’s Complaint about
his representation in her legal matter. Henderson did not respond.
DCO’s letters and emails were returned as undeliverable.
On June 13, 2016, DCO sent a letter by certified mail to Henderson
requesting information regarding Wife’s legal matters. This letter was
sent to an address that appeared to be Henderson’s home address. On
June 23, 2016, Henderson executed the certified mail receipt for the
June 13, 2016, letter delivered to his apparent home address. Henderson
did not respond to the Bar’s letter.
CONCLUSION OF LAW
1) First Cause of Complaint.
a) Neglect of a Legal Matter. RPC 1.3 provides, “A lawyer shall not
neglect a legal matter entrusted to the lawyer”
Based upon Husband’s counsel’s June 2016 description of Henderson’s
unavailability, it is evident that Henderson ceased working on Wife’s
matter sometime after he appeared on her behalf at the March 2015
hearing. Given that the dissolution proceeding had been reopened in
order to introduce additional evidence and possibly amend the support
and pension provisions, the matter was active, and Henderson had a duty
to act on Wife’s behalf as her attorney of record, including responding
to opposing counsel’s efforts to confer on a motion for new trial. His
failure to do so was neglect, in violation of RPC 1.3.
b) Lack of Communication. RPC 1.4(a) provides, “A lawyer shall keep a
client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information.”
Henderson failed to inform Wife of any postjudgment developments in
her dissolution, including the trial setting; nor did he respond to her or
her substitute counsel’s multiple requests for case information, a refund,
and her file. Henderson did not inform Wife that he had been suspended
in early May 2016 and was no longer able to represent her.
Henderson also failed to respond to Wife’s and Lindley-Gutierrez’s
attempts to communicate with him, on Wife’s behalf. These failures to
communicate with Wife and respond to Wife regarding her matter
violated RPC 1.4(a).
Cite as In re Henderson, 31 DB Rptr 95 (2017)
99
c) Failure to Withdraw. RPC 1.16(a)(1) provides in relevant part: that a
lawyer shall withdraw from the representation of a client if the
representation will result in violation of the Rules of Professional
Conduct or other law.
As of May 3, 2016, Henderson was suspended for failing to pay his
membership assessment and to file his IOLTA compliance report. He
has not sought reinstatement. Even though he was unable to practice, he
remained Wife’s attorney of record in the postjudgment dissolution
proceeding and took no steps to withdraw from representing her.
Henderson’s continued status as Wife’s attorney of record in the pro-
ceeding once he was suspended meant that he would continue to receive
court notices and communications from opposing counsel, potentially
depriving his client of information that she might have otherwise
received had she either been pro se or, having been notified that her
lawyer was suspended, afforded the opportunity to obtain other counsel.
Henderson’s failure to withdraw from the case when he was suspended
violated RPC 1.16(a)(1).
d) Failure to return client’s property. RPC 1.16(d) provides in relevant
part, “Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interest, such as
giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expenses that has
not been earned or incurred.”
Henderson did not inform Wife that he had been administratively
suspended or that he could no longer, and would no longer, represent
her or act on her behalf in the postjudgment proceeding. He has not
responded to her efforts to obtain a copy of her file or a refund of the
money she paid in advance.
Henderson’s failure to give Wife reasonable notice that he had ceased
representing her and failure to return her property violated RPC 1.16(d).
2) Second Cause of Complaint [Failure to Respond to the Bar] An
attorney violates RPC 8.1(a)(2) when he knowingly fails to respond to
a lawful demand for information from a disciplinary authority, unless
the request requires the disclosure of information otherwise protected
by Rule 1.6.
Cite as In re Henderson, 31 DB Rptr 95 (2017)
100
Henderson’s signature on a certified mail receipt pertaining to the DCO
letter evidences he received it and, as such, was aware as of mid-June
2016 that DCO had asked him to provide information in response to
Wife’s complaint regarding his conduct in this matter. His subsequent
conversation with ADC Chourey substantiated his knowledge of DCO’s
efforts to reach him. Apart from answering a telephone call from ADC
Chourey, Henderson has provided no response to DCO’s previous
requests for information and an accounting.
Henderson’s failure to respond in substance to DCO’s inquiries violated
RPC 8.1(a)(2).
SANCTIONS
The Oregon Supreme Court refers to the ABA Standards for Imposing Lawyer
Sanctions [“Standards”], and its own case law, for guidance in determining the appropriate
sanction for lawyer misconduct. In re Eakin, 334 Or 238, 257, 48 P3d 147 (2002).
A. ABA Standards. The Standards establish an analytical framework for
determining the appropriate sanction in discipline cases using four (4) factors: the general duty
violated, the lawyer’s mental state, the actual or potential injury caused, and the existence of
aggravating and mitigating circumstances. Once these factors are analyzed, the sanction may
be adjusted based on the existence of aggravating or mitigating circumstances.
B. General Duties Violated. The Standards provide that the most important
ethical duties are those which lawyers owe their clients. Standards at 5. Henderson violated
his duty to his client to act with reasonable diligence and promptness in representing her,
including his duty to adequately communicate with her. Standards § 4.4. Henderson violated
his duty to the profession in failing to properly withdraw from the representation and to
cooperate in the investigation of professional misconduct by the Bar. Standards § 7.0.
C. Mental State. Intent is the conscious awareness of the nature or attendant
circumstances of the conduct with the intent to cause a particular result. Knowledge is the
conscious awareness of the nature or attendant circumstances of the conduct but without the
conscious objective to accomplish a particular result. Standards at 9.
“A lawyer’s failure to act can be characterized as intentional, rather than attributed to
mere neglect or procrastination, if the lawyer fails to act over a significant period of time,
despite the urging of the client and the lawyer’s knowledge of a professional duty to act.” In
re Sousa, 323 Or 137, 144, 915 P2d 408 (1996). See also In re Loew, 292 Or 806, 810–11, 642
P2d 1171 (1982).
Henderson is an attorney with substantial experience. Henderson is presumed to know
the law and the disciplinary rules. See In re Devers, 328 Or 230, 241, 974 P2d 191 (1999) (so
stating). Henderson’s repeated disregard of basic and reasonable requests for information from
Cite as In re Henderson, 31 DB Rptr 95 (2017)
101
his client about her case was at least knowing. Henderson’s repeated disregard of reasonable
requests for information from theDCO was also at least knowing.
D. Extent of Actual or Potential Injury. For the purpose of determining an
appropriate sanction, both actual and potential injury may be taken into account. Standards at
6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Injury is defined as “harm to a client,
the public, the legal system, or the profession which results from a lawyer’s misconduct.”
Standards at 9. Because the purpose of attorney discipline is to protect the public, the Bar need
not prove actual injury. Potential injury is sufficient. Standards § 3.0. Potential injury is “harm
that is reasonably foreseeable at the time of the lawyer’s misconduct.” Standards at 9.
Henderson’s lack of diligence and lack of communication with his client caused actual
injury in the form of client anxiety and frustration. See In re Knappenberger, 337 Or 15, 31–
33, 90 P3d 614 (2004); In re Obert, 336 Or 640, 652, 89 P3d 1173 (2004); In re Cohen, 330
Or 489, 496, 8 P3d 953 (2000) (client anxiety and frustration as a result of the attorney’s
neglect can constitute actual injury under the Standards); In re Schaffner, 325 Or 421, 426–27,
939 P2d 39 (1997); In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989).
Henderson’s knowing refusal to cooperate during the Bar’s investigation is conduct
that caused actual injury to both the legal profession and to the public by wasting the Bar’s
time and resources, delaying and preventing the Bar from fulfilling its responsibility to protect
the public. See In re Schaffner, 325 Or at 426–27; In re Miles, 324 Or 218, 222–23, 923 P2d
1219 (1996); In re Haws, 310 Or 741, 753, 801 P2d 818 (1990). See also In re Gastineau, 317
Or 545, 558, 857 P2d 136 (1993) (Court concluded that, when a lawyer persisted in his failure
to respond to the Bar’s inquiries, the Bar was prejudiced because the Bar had to investigate in
a more time-consuming way, and the public respect for the Bar was diminished because the
Bar could not provide a timely and informed response to complaints).
E. Preliminary Sanction. Absent aggravating or mitigating circumstances, the
following Standards apply:
4.42(a) Suspension is generally appropriate when a lawyer knowingly fails to perform
services for a client and causes injury or potential injury to a client.
7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct
that is a violation of a duty owed as a professional, and cause
s injury or potential injury to a
client, the public, or the legal system.
F. Aggravating and Mitigating Circumstances. The following factors recog-
nized as aggravating under the Standards exist in this case:
1. Multiple offenses. Standards § 9.22(d). Henderson violated multiple rules
involving duties owed to both his client and the profession.
Cite as In re Henderson, 31 DB Rptr 95 (2017)
102
2. Bad faith obstruction of the disciplinary proceeding. Standards § 9.22(e).
Henderson knowingly failed to provide information and documentation in
respond to disciplinary inquiries.
3. Substantial experience in the practice of law. Standards § 9.22(i). Henderson
has been admitted in Oregon since 1989.
In mitigation is Henderson’s lack of a prior relevant disciplinary record. Standards
§ 9.32(a). Henderson’s single discussion with ADC Chourey indicated that he was dealing with
personal problems related to his wife’s health during at least some of the relevant time frame.
Standards § 9.32(c).
In the aggregate, those factors in aggravation outweigh those in mitigation in both
number and severity, and, therefore, should adjust the sanction accordingly. The sanction of a
suspension is supported and appropriate.
G. Oregon Case Law. Like the Standards, Oregon case law holds that a
suspension is warranted for Henderson’s conduct. Sanctions in disciplinary matters are not
intended to penalize the accused lawyer, but instead are intended to protect the public and the
integrity of the profession. In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998). Appropriate
discipline deters unethical conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992).
1. Neglect of a Legal Matter: RPC 1.3. The Court has indicated that at least a 60-
day suspension is generally appropriate for neglectful conduct. See In re
Knappenberger, 337 Or at 32–33; In re Redden, 342 Or 393, 153 P3d
113 (2007); In re LaBahn, 335 Or 357, 365, 67 P3d 381 (2003); In re Schaffner,
323 Or 472, 918 P2d 803 (1996); In re Kissling, 303 Or 638, 740 P2d
179 (1987); In re Dugger, 299 Or 21, 697 P2d 973 (1985); In re Morrow, 297
Or 808, 688 P2d 820 (1984). See also:
In re Koch, 345 Or 444, 198 P3d 910 (2008) [120-day suspension] Attorney
failed to communicate or cooperate with client and second lawyer when they
needed information and assistance from attorney to complete the legal matter.
In re Coyner, 342 Or 104, 149 P3d 1118 (2006) [3-month suspension + formal
reinstatement] Attorney committed neglect when he was appointed to handle
a client’s appeal but took no action on the matter for nearly a year and allowed
the appeal to be dismissed. In another matter, attorney failed to respond to a
motion to dismiss from opposing counsel and did not inform the client when
the motion was granted.
In re Knappenberger, 340 Or 573, 135 P3d 297 (2006) [1-year suspension]
Attorney’s eight-year neglect in obtaining and filing a qualified domestic
relations order for a client violated rule. Evidence of harm or injury to the client
is not necessary to establish a violation.
Cite as In re Henderson, 31 DB Rptr 95 (2017)
103
2. Failure to Take Adequate Steps to Protect Client Interests Following Ter-
mination: RPC 1.16(a)(1) & RPC 1.16(d)
In re Castanza, 350 Or 293, 253 P3d 1057 (2011) [60-day suspension]
Attorney withdrew from representing two clients in a civil action, but failed to
allow the clients sufficient time to employ other counsel, make any attempt to
postpone the trial date, file a notice of change or withdrawal of counsel, respond
to a pending motion to dismiss filed by the opposing party, respond to opposing
counsel’s proposed general judgment and cost bill, or communicate with the
clients about the judgment and cost bill.
In re Balocca, 342 Or 279, 151 P3d 154 (2007) [90-day suspension] Attorney
failed to return unearned client funds after closing his file.
3. Failure to Cooperate with Disciplinary Authority: RPC 8.1(a)(2). A lawyer
who cannot or will not respond to disciplinary inquiries undermines the
regulatory system of the court and public confidence in the Bar, alone war-
ranting—at minimum—a suspension from practice. See, e.g., In re Miles, 324
Or at 222–24; In re Hereford, 306 Or 69, 756 P2d 30 (1988). The court has
adopted a no-tolerance approach in cases where a lawyer fails to respond to Bar
inquiries. See In re Miles, 324 Or at 222–23 (lawyer was suspended for 120
days solely for two failures to fully cooperate with the Bar).
CONCLUSION
The purpose of lawyer discipline is to protect the public and the administration of
justice from lawyers who have not discharged, will not discharge, or unlikely to properly
discharge their professional duties. Standards § 1.1. See In re Huffman, 328 Or 567, 587, 983
P2d 534 (1999).
Henderson breached his duties to promptly reply to his client’s requests for
information, action, her file, and refund in her matter.
Henderson also breached his duty to cooperate in the Bar’s investigation of his conduct.
Henderson’s conduct injured his client and the Bar.
In light of the foregoing, Henderson has demonstrated in this matter that he is unwilling
or unable to conform his conduct to the required ethical standards.
Henderson is suspended for a period of four (4) months. He shall not be requested to
seek formal reinstatement [other than may be required by the administrative suspension].
Cite as In re Henderson, 31 DB Rptr 95 (2017)
104
Dated this 1st day of March, 2017.
/s/ John E. Davis
John E. (Jack) Davis, Trial Panel Chairperson
/s/ Joel Benton
Joel Benton, Trial Panel Member
/s/ Thomas W. Pyle
Thomas W. Pyle, Trial Panel Public Member
Cite as In re Cain, 31 DB Rptr 105 (2017)
105
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-01
)
JESSICA S. CAIN, )
)
Accused. )
Counsel for the Bar: Stacy R. Owen
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 1.4(a) and RPC 1.4(b). Stipulation for
Discipline. Public Reprimand.
Effective Date of Order: May 10, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Jessica S. Cain and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Cain is publicly reprimanded for violation of Oregon Rules of Professional Conduct (RPC)
1.4(a) and RPC 1.4(b).
DATED this 10th day of May, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Kathy Proctor
Kathy Proctor, Region 4
Disciplinary Board Chairperson
Cite as In re Cain, 31 DB Rptr 105 (2017)
106
STIPULATION FOR DISCIPLINE
Jessica S. Cain, attorney at law (“Cain”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Cain was admitted by the Oregon Supreme Court to the practice of law in Oregon on
April 23, 2003. On January 16, 2015, Cain was suspended for failure to pay Professional
Liability Fund fees, and, on May 5, 2015, she was suspended for failure to pay Bar dues.
Between January 20, 2016 and February 7, 2016, Cain was suspended pursuant to BR 7.1. Her
office and place of business is in Yamhill County, Oregon.
3.
Cain enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On February 25, 2017, the State Professional Responsibility Board (“SPRB”) author-
ized formal disciplinary proceedings against Cain for alleged violations of Oregon Rules of
Professional Conduct (“RPC”) 1.4(a); RPC 1.4(b) and RPC 8.1(a)(2). On April 8, 2017, the
SPRB approved a settlement offer submitted by Cain. The parties intend that this stipulation
set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this
proceeding.
Facts
5.
James R. Mitchell (“Mitchell”) hired Cain on or about July 2013 to review a small
claims court decision and, if feasible, seek reconsideration. In October 2015, Mitchell filed an
Application for Reimbursement (“Application”) with the Client Security Fund (“CSF”).
Mitchell alleged that Cain took no action on his case and failed to respond to his attempts to
contact her. He alleged that Cain never returned his file materials to him and he sought
reimbursement of the $500 retainer that he paid to her.
6.
Cain stated that she reviewed Mitchell’s case and determined that reconsideration was
not feasible. Cain stated that she informed Mitchell about her decision by telephone, but she
Cite as In re Cain, 31 DB Rptr 105 (2017)
107
could not recall if she spoke with him or left her assessment via voicemail message. At that
point, Cain considered the matter closed. After closing the matter, she stated that she received
messages from Mitchell that she did not return. During the course of the Bar investigation,
Cain returned Mitchell’s file materials to him.
Violations
7.
Cain admits that, by failing to ensure that Mitchell received her message about her
assessment of his case and by failing to respond to his subsequent messages, she violated RPC
1.4(a) and RPC 1.4(b). Upon further factual inquiry, the parties agree that the charge of an
alleged violation of RPC 8.1(a)(2) should be and, upon the approval of this stipulation, is
dismissed.
Sanction
8.
Cain and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Cain’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Cain violated her duty to act with reasonable diligence and
promptness in representing a client, which includes adequate communication
with the client. Standards § 4.4.
b. Mental State. The most culpable mental state is that of “intent,” when the
lawyer acts with the conscious objective or purpose to accomplish a particular
result. Standards at 9. “Knowledge” is the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result. Id. “Negligence” is the failure to be
aware of a substantial risk that circumstances exist or that a result will follow
andwhich deviates from the standard of care that a reasonable lawyer would
exercise in the situation. Id.
Cain was negligent in failing to ensure that Mitchell was apprised about the
status of his case and by failing to explain the matter to Mitchell such that he
could make informed decisions about his case.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992).
Mitchell was injured by not being informed about the outcome of Cain’s work
on his matter until he filed his CSF Application. Mitchell also suffered actual
Cite as In re Cain, 31 DB Rptr 105 (2017)
108
injury in the form of the anxiety and frustration that he experienced as the result
of Cain’s failure to keep him informed. See In re Cohen, 330 Or 489, 496, 8
P3d 953 (2000) (client anxiety and frustration as the result of attorney neglect
can constitute actual injury under the Standards.)
d. Aggravating Circumstances. Aggravating circumstances include:
1. Multiple offenses. Standards § 9.22(d).
2. Substantial experience in the practice of law. Standards § 9.22(i). Cain
was licensed in 2003.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Delay in disciplinary proceedings. Standards § 9.32(j). Due in part to
staffing changes in DCO, there were periods of delay in DCO’s
investigation of this matter.
9.
Under the ABA Standards, public reprimand “is generally appropriate when a lawyer
is negligent and does not act with reasonable diligence in representing a client, and causes
injury or potential injury to a client.” Standards § 4.43.
10.
The Oregon cases are in accord. See, e.g., In re Hunt, 25 DB Rptr 233 (2011); In re
Misfeldt, 24 DB Rptr 25 (2010); In re Dames, 23 DB Rptr 105 (2009); In re Nielson, 22 DB
Rptr 286 (2008); In re Farthing, 22 DB Rptr 281 (2008) (all reprimanded for violations of
RPC 1.4(a) or RPC 1.4(a) & (b)).
11.
Consistent with the Standards and Oregon case law, the parties agree that Cain shall be
publicly reprimanded for violation of RPC 1.4(a) and RPC 1.4(b), the sanction to be effective
ten days after approval by the Disciplinary Board.
12.
Cain acknowledges that she is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in the denial
of her reinstatement.
13.
Cain represents that, in addition to Oregon, she also is admitted to practice law in the
jurisdictions listed in this paragraph, whether her current status is active, inactive, or
suspended, and she acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Cain is admitted: South Dakota.
Cite as In re Cain, 31 DB Rptr 105 (2017)
109
14.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree that the stipulation
is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 5th day of May, 2017.
/s/ Jessica S. Cain
Jessica S. Cain, OSB No. 030857
EXECUTED this 8th day of May, 2017.
OREGON STATE BAR
By: /s/ Stacy R. Owen
Stacy R. Owen, OSB No. 074826
Assistant Disciplinary Counsel
Cite as In re Huisman, 31 DB Rptr 110 (2017)
110
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 14-115
)
TRAVIS W. HUISMAN, )
)
Accused. )
Counsel for the Bar: Kellie F. Johnson
Counsel for the Accused: None
Disciplinary Board: Ronald W. Atwood, Chairperson
Lisa M. Caldwell
Michael Wallis, Public Member
Disposition: Violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC
1.15-1(a), RPC 1.15-1(d), RPC 1.16(d). Trial Panel
Opinion. 18-month suspension.
Effective Date of Opinion: May 13, 2017
TRIAL PANEL OPINION
The Oregon State Bar (The Bar) filed a formal complaint in this matter on June 8, 2015.
The Accused failed to file an answer to the formal complaint. A motion for a default order was
filed on June 6, 2016; an Order of Default was signed by the Region 5 Chair on June 15, 2016.
As a result, the allegations of the complaint are deemed true.
The Bar submitted a trial memorandum in advance of the scheduled hearing, which
took place on December 12, 2016. Assistant Disciplinary Counsel Kellie F. Johnson repre-
sented the Bar. The Accused failed to make an appearance at the hearing. At hearing, the Bar
offered exhibits number 1 to 34; all were admitted. (TR. 5)
Nature of Charges and Defenses
The Bar has alleged in two causes of complaint that the Accused:
1. Undertook to represent Ms. Carla Muss-Jacobs in a medical malpractice claim
filed in Multnomah County, Oregon, but thereafter neglected that legal matter
to a point where judgment was entered against her, failed to keep her reasonably
informed of the status of the matter, failed to explain her rights adequately so
Cite as In re Huisman, 31 DB Rptr 110 (2017)
111
she could make informed decisions, failed to keep adequate records of client
funds, failed to keep client funds in a client trust account until earned, failed to
return client property at the end of the representation, failed to protect the
client’s interests at the end of the representation, and failed to respond to the
Bar’s lawful demand for information, in violation of RPC 1.3, RPC 1.4(a), RPC
1.4(b), RPC 1.15-1(a), RPC 1.15-1(c), RPC 1.15-1(d), and RPC 1.16(d).
2. Failed to respond to lawful requests for information from the Disciplinary
Counsel’s Office in violation of RPC 8.1(a)(2).
The Accused failed to file an answer to the formal complaint, failed to appear
at the hearing and provided no defense to the charges or the sanction.
Summary of Undisputed Facts
1. The Muss-Jacobs Matter.
At all times pertinent to this matter, the Accused was authorized to practice law in the
State of Oregon. At the time of the hearing in this matter, he had closed his Oregon office and
was assumed to be practicing law in the State of North Dakota.
Carla Muss-Jacobs (Muss-Jacobs) had a knee replacement surgery that failed. She then
had corrective surgery. In September 2010, she filed suit in Multnomah County Circuit Court
alleging medical malpractice. At the time, she was representing herself. Defense counsel filed
a motion for summary judgment in June 2011; Muss-Jacobs filed a response on her behalf. The
court granted summary judgment on July 28, 2011.
On or about July 28, 2011, Muss-Jacobs hired the Accused to represent her in the
medical malpractice claim.
1
She paid him a fee of $750 and costs of $210.
2
At the time, the
Accused promised to find a products liability lawyer to sue the maker of the device. He also
agreed to file two motions to set-aside the summary judgment all in preparation to file an
appeal.
Multnomah County Circuit Court entered judgment in the malpractice matter on
August 22, 2011. (Ex. 5).
3
The Accused promptly filed a motion for a new trial. The motion
was denied and Muss-Jacobs then had 30 days to file an appeal. The Accused failed to appeal
either the judgment or the order denying a new trial.
1 There is some evidence Muss-Jacobs also hired the Accused to help her deal with a Small Claims Judgment;
we will not deal with that issue because it was not pled in the complaint.
2 Money was paid over time and is best outlined in Exhibit 4. We are comfortable Muss-Jacobs paid the
Accused the amounts noted in the complaint. She may have paid more.
3 There is a cost bill associated with this judgment in the sum of $802. (Ex. 6).
Cite as In re Huisman, 31 DB Rptr 110 (2017)
112
Between September 2011 and June 2012, the Accused failed to take any substantive
steps to protect his client’s interests or to advance the malpractice claim. He failed to inform
her of the filing deadline and failed to file an appeal.
In June 2012, the Accused moved to set aside the judgment; the court denied that
motion in July. The Accused advised Muss-Jacobs the motion had been denied and that he had
decided not to file an appeal. However, he promised to find her a products liability lawyer. She
paid him an additional $500 and asked the Accused for her client file. The Accused failed to
return the file and failed to find a products liability lawyer.
During the summer of 2012, the Accused moved to North Dakota. He failed to return
the client file or find her a products liability lawyer. Muss-Jacobs wrote the Accused a letter
dated September 4, 2012. (Ex. 9). She demanded a copy of her file and a refund of $750. In
response, the Accused mailed Muss-Jacobs a check for $250. He said he would have his ex-
wife deliver some of her documents.
2. Failure to respond to the Disciplinary Counsel’s Office.
Muss-Jacobs filed a complaint with the Bar’s Client Assistance Office in May 2013.
(Ex. 11). The file was referred to disciplinary counsel in August 2013. (Ex. 12).
Disciplinary Counsel sought information from the Accused by letter of August 23,
2013. (Ex. 13). A second letter was sent October 3, 2013. (Ex. 14). A partial response was sent
by the Accused October 12, 2013. (Ex. 15). A third demand was made October 14, 2013. (Ex.
17). Again, the Accused responded with partial and incomplete responses. (Ex. 18, 21, 23).
Additional demands were sent September 8, 2014 and September 29, 2014.
On October 15, 2014, the Accused was advised the Bar was seeking to suspend his
license to practice law in the State of Oregon. (Ex. 24, 25). The Accused failed to file a response
to the petition. The Accused was suspended effective October 27, 2014. (Ex. 27). However,
the Accused did notify disciplinary counsel he had resigned. (Ex. 28). Because charges were
pending, the resignation was ineffective. BR 9.1.
4
4 It bears noting this hearing was to some extent unnecessary. The Accused made it clear he wanted to resign.
His resignation was ineffective because he failed to sign the proper form. This is the second case that the
Trial Panel Chair is aware in which an accused lawyer has indicated a wish to resign, but it was not accepted
because of BR 9.1. As a result, a hearing in each case was needed. While this is part of Disciplinary Counsel’s
job, the members of the trial panel are donating their time. Would it not be better to modify BR 9.1 to allow
counsel to resign in any form that is clear as to the attorney’s intent? The rule could be written in such a way
that if charges are pending or under investigation they would need to be dealt with if the attorney applies for
admittance in the future. The rule could accomplish what the form is intended to accomplish now.
Cite as In re Huisman, 31 DB Rptr 110 (2017)
113
Conclusions of Law
First Cause for Complaint.
The First Cause of Complaint addresses multiple rules; we will take each in turn.
A. RPC 1.3 provides a lawyer shall not neglect a legal matter entrusted to the
lawyer.
The Bar, in its argument, alleges the Accused neglected both a malpractice matter and
a landlord/tenant matter. We will not address that latter matter since it was not pleaded in the
complaint. Nor do we feel the need to address that issue given the other charges in the
complaint.
However, the Bar has proven the Accused has violated this rule and neglected this
matter by clear and convincing evidence. There is a lack of activity of the matter between
September 2011 and June 2012. The Accused failed to find a products liability lawyer for
Muss-Jacobs. The Accused abandoned Muss-Jacobs in September 2012 when he moved to
North Dakota without making a clean break in the relationship. There are steps to be taken
when an engagement ends and the Accused did none of them, with the exception of
reimbursing Muss-Jacobs $250 without an adequate accounting. The Accused admits as much.
(Ex 16).
B. RPC 1.4 (a) provides that a lawyer shall keep a client reasonably informed about
the status of a matter and promptly comply with reasonable requests for infor-
mation.
The Bar has proven by clear and convincing evidence the Accused has violated this
rule. The best statement of this error is found in the September 10, 2013 email sent by the
Accused to Disciplinary Counsel. He states he talked to his client, but failed to reduce his
advice to writing. It is impossible to determine how much advice was given. (Ex. 16). It is clear
some advice was given and reduced to writing. (Ex. 22). On balance, what is in the record and
what can be inferred from the statements of the Accused, indicates that whatever com-
munication that occurred between the two was insufficient to allow Muss-Jacobs to make
informed decisions and to know what was happening with the matters entrusted to her counsel.
As a note, the Accused makes reference to some mental health issues suffered by Muss-
Jacobs. She admitted as much in her testimony. We are not in a position to determine just how
much any mental health issues interfered with the representation and communication here. Our
point is that the Accused knew of some problems, which should have alerted him to be more
diligent to document the steps he was taking and their reasons. In short, written communication
is more important if the lawyer is worried the client for some reason cannot understand the
advice that is being given. The Accused failed in that regard. He admitted as much. (Ex. 21).
Cite as In re Huisman, 31 DB Rptr 110 (2017)
114
C. RPC 1.4(b) provides that a lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decision regarding the repre-
sentation.
The Bar has proven by clear and convincing evidence the Accused has violated this
rule. There is a dearth of explanation by the Accused with a rationale in our record. While at
least one decision is confirmed, the reasons to take individual actions remain unexplained. A
lawyer has an obligation to make a recommendation and to explain the basis for that recom-
mendation. We cannot see that such communication occurred here.
D. RPC 1.15-1(a) provides in pertinent part that a lawyer shall hold funds in a
lawyer trust account and keep records of the account funds for a period of five
years following termination of the representation.
The Bar has proven by clear and convincing evidence the Accused has violated this
rule. In his email to Disciplinary Counsel of September 10, 2013, he states, “I do not contest
failing to follow, Rule 1.15-1(a): … .” In that same note he admitted to having problems
maintaining his accounting and bookkeeping. (Ex. 16). See also Exhibit 21 where he admits to
no longer having his ledger and cannot recreate deposits, withdrawals or transfers.
E. RPC 1.15-1(c) provides that a lawyer shall depositfunds received from a client
in a lawyer trust account and those funds can only be withdrawn as they are
earned unless the fee is denominated earned upon receipt or nonrefundable.
The Bar has not proven by clear and convincing evidence the Accused has violated this
rule. We do have his attorneyretention agreement. (Ex 22). It is not an earned upon receipt
attorneyretention agreement. Thus, any funds received from his client should have gone into a
trust account.
What is difficult about this issue is that the Bar cannot establish where the Accused put
any money received from Muss-Jacobs. He failed to produce bank statements, his ledger or
any other financial records. He stated he could prove where he put the money if he had his
records. (Ex. 16). However, he admitted he did not have access to those records. His statement
is unrebutted.
We are mindful of the fact the Bar asked the Accused for his records. He advised the
Bar he did not have access to his records; by then, some were destroyed during his divorce and
he was living and practicing law in North Dakota. He advised the Bar it would cost money to
get the bank records.
We resolve this against the Bar for a couple of reasons. First, there is nothing in the
complaint that outlines facts to address this issue. Thus, his failure to file an answer and the
default that flows from that failure do not provide admitted facts. Second, the Bar has subpoena
power, so could have asked the bank for those records. Third, the Accused denied violating
this rule. Finally, there is no contrary evidence. Since the burden of proof is on the Bar to prove
Cite as In re Huisman, 31 DB Rptr 110 (2017)
115
by clear and convincing evidence the Accused violation of this rule, it is incumbent upon the
Bar to establish where that money went. They have not done so on this issue.
F. RPC 1.15-1(d) provides that upon receiving funds or other property in which a
client has an interest, a lawyer shall promptly notify the client and a lawyer shall
promptly deliver to the client any funds or property that the client is entitled to
receive and, upon request, render a full accounting.
The Bar has proven by clear and convincing evidence the Accused has violated this
rule as well.
There is documentation in the file Muss-Jacobs paid as much as $2,075 to cover fees
and costs. (Ex 4). The accounting provided by the Accused is found in Exhibit 22. He alleges
payments of $1,520, costs of $261.50 and fees earned of $1,400. As a result, he provided a
refund of $250. One problem with this document is that the Accused has no bank records or
his ledger to support these figures. Muss-Jacobs provided some records to indicate she paid
more money to the Accused than he notes in his accounting. Finally, the listing of fees earned
is laughable. There are no dates. Each entry is in even hours; that is, there are no partial hours
noted. There are no contemporaneous records. (Ex. 21). In short, they appear to be guesswork.
We do not accept them.
An accounting is to be based upon contemporaneous records the Accused admits he
failed to keep, lost in his move from Oregon to North Dakota or were destroyed by his ex-wife
during the divorce. What he submitted is insufficient to satisfy this rule.
G. RPC 1.16(d) provides that upon termination of representation a lawyer shall
take steps to the extent reasonably practicable to protect a client’s interests, such
as giving reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not been earned or
incurred.
The Bar has proven by clear and convincing evidence there was a violation of this rule.
An attorney has an obligation to make sure this transition goes smoothly; that did not occur
here.
An attorney has an obligation to provide copies of file documents. That did not occur
here. An attorney has an obligation to provide an accounting; that did not occur here. An
attorney has an obligation to either complete the work, transition it to another attorney or to
terminate the relationship so the client can find other counsel on their own if additional work
needs to be done. That did not occur here either. What records were sent were incomplete. (Ex.
30). Some were destroyed. (Ex. 16).
Cite as In re Huisman, 31 DB Rptr 110 (2017)
116
Second Cause for Complaint
The Bar alleges a violation of RPC 8.1(a)(2). The rule requires a lawyer who is involved
in a disciplinary matter to fully respond to a lawful demand for information from a disciplinary
authority. We find the Bar has failed to prove this allegation by clear and convincing evidence.
This is a close case, but the Bar has failed to prove this allegation. The complaint was
filed May 17, 2013. (Ex. 11). The matter was referred to disciplinary counsel on August 16,
2013. The referral letter indicates material was submitted, but the letter does not indicate who
submitted what. Thus, we cannot say the Accused failed to cooperate at this stage of the
investigation.
A request for records was mailed to the Accused’s address in North Dakota on August
23, 2013. (Ex. 13). A second request was filed October 3, 2013. (Ex. 14). However, it looks
like the Accused had emailed a response to disciplinary counsel on September 10, 2013. (Ex.
16). He made certain admissions we have relied upon here. Further, he admitted to not having
certain records requested by the Bar. (Ex. 16).
Additional records were requested October 14, 2013. (Ex. 17). The Accused responded
to that letter on October 25, 2013. (Ex. 18). Although attachments are mentioned, the material
submitted at hearing does not let us know what, if anything, was attached. We only have the
transmittal letter. Exhibit 19 is another submission from the Accused, although it is impossible
to date the document or identify when it was received by the Bar. The Accused filed another
response December 6, 2013. (Ex. 21). He filed a short response February 11, 2014. (Ex. 23).
Between October 14, 2013 and October 15, 2014, there is no indication in our record
anyone at the Bar asked the Accused for additional records.
5
However, on that latter day, the
Bar filed a petition to suspend the Accused’s license pursuant to BR 7.1. (Ex. 25). The Accused
did respond to the petition to suspend, although it turns out it was mailed the date the
suspension order was signed. (Ex. 27, 28). In his letter of October 27, 2014, he expresses some
frustration with the process. He admits he does not have the records requested and indicates
some were destroyed during his divorce. (Ex. 28). He then attempts to resolve the discipline
issue by resigning. As indicated above, since he did not sign the proper form, his resignation
was ineffective. He was notified of that fact by letter of November 6, 2014. (Ex. 29). For
reasons that are unknown to the trial panel, disciplinary counsel did not send the Accused a
copy of the form with that letter. Had the form been sent, it is possible the matter would have
resolved then.
5 We recognize the affidavit of Martha M. Hicks of October 15, 2014 makes reference to a letter of September
29, 2014. A copy of that letter is not in the record. Nor is there an explanation why there was no activity
between October 14, 2013 and September 29, 2014. In short, this record cannot tell us what was requested
September 29, 2014.
Cite as In re Huisman, 31 DB Rptr 110 (2017)
117
The Accused did not provide all of the records requested. Some he did not have. One
set of records resided with a bank and would have cost money to obtain; the Bar did not explain
why those records were not subpoenaed. The Accused did file a number of responses to
disciplinary counsel; in short, he did not ignore the process. He did not refuse to participate. A
number of cases were cited in the Bar’s memorandum. However, the facts in those cases were
much more egregious than the conduct of the Accused here. We find he responded to the best
of his ability, even though it was incomplete. As a result, we cannot say the Bar has proven by
clear and convincing evidence he failed to respond.
Sanction
Having found that the Accused violated provisions of the Rules of Professional
Conduct, we next determine the appropriate sanction. We are guided by the ABA Standards
for Imposing Lawyer Sanctions (“Standards”) and case law from the Oregon Supreme Court.
ABA Standards. The ABA Standards require consideration of (1) the duty violated by
the Accused; (2) the Accused’s mental state; (3) the actual or potential injury that the
misconduct caused; and (4) any aggravating or mitigating circumstances.
(1) Duty violated:
We have determined the Accused violated six separate rules. All of the violations relate
to the Accused’s duty to his client. He violated his duty of loyalty and his duty of diligence.
(2) Mental state:
A lawyer acts with intent when he acts with a “conscious objective or purpose to
accomplish a particular result. A lawyer acts with knowledge when the lawyer has a conscious
awareness of the nature of the conduct, with or without the conscious objective or purpose to
accomplish a particular result. Negligence is the failure of the lawyer to heed a substantial risk
that a result will follow and that failure is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation.
The Bar argues that the Accused acted with knowledge, but with the passage of time,
that knowledge became intent. The Bar urges discipline in this matter be based upon intent.
We reject that argument.
6
The Accused clearly violated several rules in this matter. However, at no time did the
Accused intend to harm Muss-Jacobs or act with a conscious objective to accomplish a
particular result. He took on a difficult case. He did not handle it well. It is clear to us he had
6 It bears remembering we are not considering any actions related to the landlord tenant matter since that matter
was not pled in the complaint. The complaint centered on the malpractice action and the failure to respond
to the Bar. In short, while there is evidence on the landlord tenant matter, there are no allegations in the
complaint.
Cite as In re Huisman, 31 DB Rptr 110 (2017)
118
some amount of verbal contact with Muss-Jacobs. There is a dispute on what was said when.
He did not document their decisions. Muss-Jacobs was having her own personal issues; the
Accused was going through a divorce through part of this time. There is a period of months
the Accused did not work on this matter; there is a period of about a year in which the Bar did
not act on the investigation.
Balancing the evidence in this matter and our review of the cases, it is clear the Accused
acted with knowledge. That is, he knew what he was doing, but did not have a conscious
objective or purpose behind his actions. See In re Sousa, 323 Or 137, 915 P2d 408 (1996).
(3) Injury:
We find Muss-Jacobs sustained actual injury. She was lead to believe her malpractice
claim could be resurrected, when that was unlikely. There was delay in the process with its
attendant distress and worry. She likely should have received a refund greater than she
received.
(4) Preliminary sanction:
Suspension is generally appropriate when a lawyer knows or should know that he is
dealing improperly with client property and causes injury. In this case, at a minimum, the
Accused failed to keep proper records of the money paid to him by his client so that at the end
of the representation, he could not produce an accurate accounting. The Accused admitted his
records were poor to begin with; many of his records were lost during his move to North
Dakota and during his divorce.
Further, for the Accused’s lack of diligence, suspension is generally appropriate when
a lawyer knowingly fails to perform or engages in a pattern of neglect that causes injury. The
Accused failed to conscientiously document the advice he gave to his client on steps to take
and decision they made. What he told her may have been appropriate and it might not. We will
never know because it was not adequately documented. While there was injury, it was not a
serious injury.
It is our preliminary determination that the appropriate sanction is suspension of some
length. We now turn to any aggravating or mitigating circumstances.
(5) Aggravating and mitigating circumstances:
A. Dishonest or selfish motive. Standards § 9.22(b):
The Bar argues there is a dishonest or selfish motive. It points to the failure to provide
a refund and the failure to respond to the Bar during the investigation. We have held the Bar
did not prove that latter charge. Thus, we only look at whether the failure to provide a refund
in this case demonstrates a dishonest or selfish motive.
In this case, the accounting was insufficient in our eyes. In part, we came to that con-
clusion because the accounting was not documented with contemporaneous records or a ledger.
Cite as In re Huisman, 31 DB Rptr 110 (2017)
119
Thus, it looks like a refund might be due. However, the Bar has not proven a refund was
actually due, particularly as it relates to the malpractice claim, by clear and convincing
evidence.
B. Multiple offenses. Standards § 9.22(d):
We agree the Bar has proven the Accused violated multiple rules; this aggravating
factor applies.
C. Bad-faith obstruction of the disciplinary proceeding. Standards § 9.22(e):
This factor is not applicable because the Bar did not prove a violation of the applicable
rule.
D. Refusal to acknowledge the wrongful nature of his misconduct. Standards
§ 9.22(g):
This factor does not apply. The Accused admitted he violated at least one rule and could
not disprove his violation of another. (Ex. 16). He also admitted he closed his private practice
and became an employee of a firm because of his failure to keep good records. The Bar has
not proven this factor.
E. Absence of a prior disciplinary record. Standards § 9.32(a):
This factor does apply. There is nothing in our record to indicate the Accused had been
disciplined in the past.
There may be other mitigating factors that apply. One example is an absence of a
dishonest or selfish motive. Inexperience in the practice of law might also apply. However,
since the Accused did not make an appearance, we do not address any other mitigating factors.
We are guided to not be influenced by several factors. The only factor that applies in
this situation is the attempt to resign prior to the completion of disciplinary proceedings. Thus,
we do not consider that attempt as either an aggravating or mitigating factor.
We have found one aggravating factor and one mitigating factor. The analysis under
the ABA Standards leads the panel to conclude that a term of suspension is the appropriate
sanction for the violations committed by the Accused. We next turn to Oregon case law for
comparable cases.
Oregon Case Law:
The Bar argues this case is much like In re Thies, 305 Or 104, 750 P2d 490 (1988). We
disagree. There the Court found the lawyer acted with intent; in this case, the Accused acted
knowingly. Further, the Court found the lawyer failed to cooperate in the disciplinary matter;
we did not make that finding here.
The Bar also cited In re Dixson, 305 Or 83, 750 P2d 157 (1988). Again, we disagree
this case applies. In this case, the Court found the Accused lacked veracity. There were ten
Cite as In re Huisman, 31 DB Rptr 110 (2017)
120
causes of complaint. Five causes related to five separate individuals; the other five were
separate complaints for failure to cooperate with the Bar. Not only did the Court find the
Accused deceitful to his clients and the Bar, it also found the Accused was deceitful to State
and Federal judges. We have no such conduct here.
As noted in at least one case, trying to find a prior decision that fits the facts and
findings of this matter is nearly impossible. There are many with similar facts. We will review
just a couple.
In re Schaffner, 325 Or 421, 939 P2d 39 (1997), involved a case in which the lawyer
was found to have neglected a legal matter, failed to deliver property to the client, failed to
fully respond to inquiries from disciplinary counsel and to return client documents to the client.
The Court imposed a two-year suspension. The difference between Schaffner and this case is
our finding the Bar failed to prove by clear and convincing evidence the Accused failed to
cooperate with the disciplinary process.
In re Redden, 342 Or 393, 153 P3d 113 (2007), involved a case in which the lawyer
was found to have neglected a legal matter. The neglect in Redden lasted some 21 months. The
Court imposed a 60-day suspension. Only a single violation was proven in Redden.
There are many more cases that could be discussed. However, these two give a good
range. Redden involved a single violation; Schaffner involved multiple violations. Schaffner is
more consistent with this matter. The Accused in this case violated multiple rules. We conclude
the Accused should be suspended a total of 18 months.
We suspend the Accused from the practice of law for 18 months, the suspension to
begin as provided under the applicable rules of procedure.
Dated this 3rd day of March, 2017.
/s/ Ronald W. Atwood
Ronald W. Atwood, Trial Panel Chair
/s/ Lisa Caldwell
Lisa Caldwell, Trial Panel Member
/s/ Michael Wallis
Michael Wallis, Trial Panel Public Member
Cite as In re Rinks, 31 DB Rptr 121 (2017)
121
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 15-142
)
KATHLEEN Y. RINKS, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: None
Disciplinary Board: Kristina Reynolds, Chairperson
Bryan D. Beel
Stephen D. Butler, Public Member
Disposition: Violation of RPC 8.1(a)(2), RPC 8.4(a)(2); RPC
8.4(a)(3). Trial Panel Opinion. Disbarment.
Effective Date of Opinion: May 17, 2017
TRIAL PANEL OPINION
Introduction and Decision
This matter came before the trial panel of the Disciplinary Board named above based
on a Formal Complaint filed by the bar on July 5, 2016, to which Kathleen Y. Rinks, “the
Respondent,” failed to respond. Amber Bevacqua-Lynott represented the Oregon State Bar
(“Bar”). The Respondent has not appeared, and is not represented in this matter. On August
29, 2016, the Regional Chairperson granted the Bar’s motion for default.
The holding of default means that the allegations in the Bar’s Formal Complaint are
deemed true. Oregon State Bar Rules of Procedure 5.8(a). Therefore, it stands to the trial panel
to determine if those facts constitute the disciplinary violations alleged by the Bar, and, if so,
what sanction is appropriate. See In re Kluge, 332 Or 251, 27 P3d 102 (2001).
Based on the pleadings presented by the Bar, the lack of any rebuttal by the Respondent,
the Oregon Rules of Professional Conduct, and the ABA Standards for Imposing Lawyer
Sanctions (Standards), and for the reasons stated below, the Trial Panel concludes that the
conduct of the Respondent violated several provisions of the Oregon Rules of Professional
Cite as In re Rinks, 31 DB Rptr 121 (2017)
122
Conduct, and her multiple violations warrant disbarment. The Trial Panel recommends a
sanction of disbarment.
Procedural History
The Bar filed a Formal Complaint on July 5, 2016, against the Respondent, alleging
several violations of the Oregon Rules of Professional Conduct (RPC). The Respondent was
served and failed to respond to the Bar’s Formal Complaint. The Respondent was found in
default on August 29, 2016.
Findings of Fact
The Trial Panel makes the following findings of fact.
The Respondent was admitted to practice law in Oregon on May 4, 1993, also having
been previously admitted to practice in both New Jersey (in which it appears her license has
been administratively revoked) and Pennsylvania (in which it appears that she is subject to
Administrative Suspension). See Bar’s Sanctions Memorandum, Exhibits 2 and 3.
At all times substantive to this process, the Respondent was a member of the Oregon
State Bar, maintaining an office and place of business in Multnomah County.
On or about April 2014, Citibank foreclosed on a residential real property owned by
the Respondent.
Between September 24 and 28, 2015, the Respondent knowingly and intentionally sold
redemption rights to her real property to at least five separate entities. The Trial Panel
understands redemption rights to be a stick in the bundle of sticks property owners have, but,
once sold to one buyer the property owner cannot then re-sell the same rights to a second, or
in this case, third, fourth, or fifth buyer. Therefore, even if the first sale was lawful, the later
four sales may have constituted theft in the first degree. The total of all sales of the redemption
rights gained the Respondent at least $19,000, $10,000 of which was gained by deception on
the part of the Respondent. These appear to be theft. Bar’s Sanctions Memorandum at 5. Under
ORS 164.015(4), “[a] person commits theft when, with intent to deprive another of property
or to appropriate property to the person or to a third person, the person . . . [c]ommits theft by
deception as provided in ORS 164.085.” (Emphasis added.) ORS 164.085(1)(d) states that “[a]
person, who obtains property of another thereby, commits theft by deception when, with intent
to defraud, the person . . . [s]ells or otherwise transfers or encumbers property, failing to
disclose a lien, adverse claim or other legal impediment to the enjoyment of the property,
whether such impediment is or is not valid, or is or is not a matter of official record.” (Emphasis
added.) ORS 164.055 defines theft in the first degree, stating that “[a] person commits the
crime of theft in the first degree if, by means other than extortion, the person commits theft as
defined in ORS 164.015 and . . . [t]he total value of the property in a single or aggregate
transaction is $1,000 or more.” (Emphasis added.) Therefore, it appears that were the
Respondent to be prosecuted for the activities described above, there would be a case for at
Cite as In re Rinks, 31 DB Rptr 121 (2017)
123
least four counts of theft in the first degree, one for each of the four redemption deals that the
Respondent made after having sold redemption rights a first, arguably valid, time.
The record does not reflect that the Respondent was ever indicted for, convicted of, or
acquitted of any crime in connection with the sale of redemption rights.
On or about November 3, 2015, the Respondent was referred to Disciplinary Counsel’s
Office (DCO) by an anonymous complaint. The DCO wrote letters to the Respondent, and
reminded her of her obligation to respond.
On or about December 3, 2015, DCO filed a motion pursuant to BR 7.1, requesting the
suspension of the Respondent for failure to respond to DCO’s inquiries. The Respondent,
again, did not respond. An order suspending Respondent from the practice of law was signed
by the State Bar Disciplinary Board Chairperson on December 14, 2015.
On July 5, 2016, the Bar filed its Formal Complaint against the Respondent, of which
she acknowledged personal service on July 20, 2016.
The Respondent did not respond to the Formal Complaint, and was found in default on
August 29, 2016. Thereby, the facts alleged by the Bar in its Formal Complaint are deemed
true, and it is up to the Trial Panel to determine if the facts establish violations of the Rules of
Professional Conduct, and, if so, the appropriate sanction.
Discussion and Conclusions of Law
The Bar’s factual allegations against the Respondent in the Formal Complaint were
deemed true once the Respondent was held in default, pursuant to BR 5.8(a). See In re Magar,
337 Or 548, 551–53, 100 P3d 727 (2004); In re Kluge, 332 Or 251, 27 P3d 102 (2001).
However, the Trial Panel still must decide whether the facts deemed true constitute a violation
of the Oregon Rules of Professional Conduct, and if so, what sanctions may be appropriate.
See In re Koch, 345 Or 444, 198 P3d 910 (2008). See also In re Kluge, 332 Or at 251. The Bar
has the burden of proving misconduct by the Respondent by clear and convincing evidence.
BR 5.2.
The Respondent, in violation of RPC 8.1(a)(2), 8.4(a)(2), 8.4(a)(3), committed
professional misconduct.
A. The Respondent knowingly refused to respond to a lawful demand for infor-
mation in connection with this disciplinary matter, in violation of RPC 8.1(a)(2).
It is the duty of all attorneys to be responsive to the Bar in connection with disciplinary
inquiries.
ORPC 8.1(a)(2) reads in pertinent part: “a lawyer . . . in connection with a disciplinary
matter, shall not: (2) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority.” Emphasis added.
Cite as In re Rinks, 31 DB Rptr 121 (2017)
124
The Supreme Court has held that violating just this provision of the Rules is a “serious
ethical violation.” In re Parker, 330 Or 541, 551, 9 P3d 107 (2000); In re Bourcier, 325 Or
429, 434, 939 P2d 604 (1997). The record clearly shows that the Bar has contacted and
attempted to contact the Respondent regarding this matter several times via mail and email.
Respondent has not chosen to participate in these proceedings in any way. The Trial Panel
Chair also has emailed the Respondent, and received no response from her. The Trial Panel
therefore finds, by clear and convincing evidence, that the Respondent violated RPC 8.1(a)(2)
by failing to respond when the Bar made a lawful demand for information.
B. The Respondent violated RPC 8.4(a)(2) by committing a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects.
The Respondent stands facing facts that allege at least four instances of theft for her
own personal profit. Theft and deceit are crimes that by their very nature when committed by
attorneys diminish the public’s view of all attorneys.
ORPC 8.4(a)(2) reads: “[i]It is professional misconduct for a lawyer to: (2) commit a
criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.” Emphasis added.
In order for the Bar to prove a violation of this rule there does not have to be a criminal
conviction. In re Hassenstab, 325 Or 166, 176, 934 P2d 1110 (1997). However, there must be
some rational connection between the conduct and the Respondent’s fitness to practice law. In
re Carpenter, 337 Or 226, 232, 95 P3d 203 (2004). The Bar has proved by clear and convincing
evidence that the Respondent committed acts of theft. Theft, as defined by Oregon law, can
take many forms. The specific type of theft indicated by the action of the Respondent is theft
by deception. It follows that a crime involving deception would therefore reflect adversely on
the honesty and trustworthiness of the attorney. The Bar has established the Respondent took
actions that were the criminal act of theft by deception, of selling and re-selling redemption
rights in her house. The first sale may have been legal; however, nothing in the record reflects
that the subsequent four sales of redemption rights were anything but fraudulent attempts to
make money. The later sales were therefore criminal acts which reflect adversely on the
honesty and trustworthiness of the Respondent. There is no evidence in the record that after
the Respondent made the first sale that she let the subsequent buyers know that she no longer
had the right to sell the redemption rights. It is therefore clear to the Trial Panel, based on clear
and convincing evidence, that the Respondent violated RPC 8.4(a)(2) by committing a criminal
act that reflects adversely on her honesty or trustworthiness.
Cite as In re Rinks, 31 DB Rptr 121 (2017)
125
C. The Respondent violated RPC 8.4(a)(3) by engaging in conduct involving dis-
honesty, fraud, deceit, or misrepresentation that reflects adversely on her fitness to
practice law.
ORPC 8.4(a)(3) states it is professional misconduct to:
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation
that reflects adversely on the lawyer’s fitness to practice law.
Emphasis added. The distinction between RPC 8.4(a)(2), discussed above, and RPC
8.4(a)(3) is that the former requires a criminal act, whereas the latter simply requires engaging
in conduct that is dishonest, fraudulent, deceitful, or a misrepresentation. “An attorney can be
found to have engaged in “dishonest” conduct when the evidence demonstrates that he or she
engaged in knowing or intentional conduct that indicates a disposition to lie, cheat, or defraud,
and/or that the attorney lacks integrity. In re Carpenter, 337 Or 226, 234, 95 P3d 203 (2004);
In re Sanchez 29 DB Rptr 21, 38 (2015). A lawyer engages in “misrepresentation” when the
lawyer makes a representation that is affirmatively false or false by omission, knowing the
representation to be false and material such that it could significantly influence the decision
making process of the party to whom the representation is made. In re Gatti, 356 Or 32, 53,
333 P3d 994 (2014).
It should be noted that the Respondent was not acting in her capacity as a lawyer at the
time of these violations, and that acting as a lawyer is not required for conduct to violate the
Rules. In other words, the fact that the Respondent was not acting as a lawyer when she made
the false statements of fact does not affect her culpability. The Disciplinary Rules apply to the
conduct of lawyers even when they are acting on their own behalf. See, e.g., In re Glass, 308
Or 297, 779 P2d 612 (1989), adh’d to on recons, 309 Or 218, 784 P2d 1094 (1990) (respondent
violated several ethical rules in the course of his private dispute with a contractor); In re
Germundson, 301 Or 656, 662, 724 P2d 793 (1986) (lawyer who signed promissory notes on
behalf of a corporation in which he had an interest, without authority to do so, violated former
DR 1-102(A)(3) (now RPC 8.4(a)(3)); In re Houchin, 290 Or 433, 622 P2d 723 (1981) (lawyer
violated former DR 1-102(A)(4) (now RPC 8.4(a)(4)) by enrolling in a college course as a
student, while also teaching the same course, in order to qualify for educational benefits); In
re Staar, 324 Or 283, 289, 924 P2d 308, 311 (1996).
The trial panel finds that the Respondent intentionally misrepresented her ability to sell
redemption rights in her property to at least four companies, over a span of four days.
The Bar has therefore established by clear and convincing evidence that the Respondent
made misrepresentations that were knowingly false and material, and that those
misrepresentations would or could significantly influence the hearer’s decision-making
process. See In re Eadie, 333 Or 42, 36 P3d 468 (2001); In re Kluge, 332 Or at 255. In this
case, whatever the Respondent said to the subsequent redemption-rights buyers was sufficient
to encourage them to give her money; thus, their decision-making process was influenced
Cite as In re Rinks, 31 DB Rptr 121 (2017)
126
enough to purchase what the Respondent purported to be able to sell. There is no evidence to
suggest that what the Respondent said to encourage those buyers to give her money was
anything other than knowingly stated. In each sale, save the first, the buyers of the redemption
rights relied on the Respondent’s representation that she had those rights to sell.
SANCTION
In fashioning a sanction, the Oregon Supreme Court refers to the ABA Standards for
Imposing Lawyer Sanctions (“Standards”), in addition to its own case law. In re Eakin, 334 Or
238, 257, 48 P3d 147 (2002); In re Biggs, 318 Or 281, 295, 864 P2d 1310 (1994).
A. The ABA Standards for Imposing Lawyer Sanctions
The Standards require an analysis of four factors by the Trial Panel:
(1) The ethical duty violated,
(2) The attorney’s mental state,
(3) The actual or potential injury, and
(4) The existence of aggravating and mitigating circumstances. Standards § 3.0.
See In re Jackson, 347 Or 426, 440, 223 P3d 387 (2009); In re Knappenberger, 344 Or 559,
573–74, 186 P3d 272 (2008).
The Trial Panel analyzes the first three factors and reaches a presumptive sanction. That
sanction can then be adjusted by the Trial Panel under the Standards based upon the presence
of aggravating or mitigating circumstances. In re Jackson, 347 Or at 441. Finally, the Trial
Panel evaluates whether the sanction is consistent with Oregon law. Id.
(1) The Ethical Duty Violated.
The Rules of Professional Conduct generally fall into four categories regarding the
nature of the duties owed by an attorney:
(1) duty to clients;
(2) duty to the public;
(3) duty to the legal system; and
(4) duty to the legal profession.
The Respondent’s conduct involves violations of her duty to the public and duty to the
legal profession. The duty to the public exists because the public “expects lawyers to exhibit
the highest standards of honesty and integrity, and lawyers have a duty not to engage in conduct
involving dishonesty, fraud.” Standards at 10. The duty to the legal profession includes, among
other things, the duty to maintain the integrity of the profession. Standards at 10. See In re
Sanchez, 29 DB Rptr at 31.
Cite as In re Rinks, 31 DB Rptr 121 (2017)
127
The Respondent violated her duties to the public and the legal profession. The Respon-
dent violated these duties by intentionally and knowingly misrepresenting to at least four
companies her right to sell redemption rights to property which had already been sold. The
Respondent failed to live up to the “highest standards of honesty and integrity,” as required by
both the duty to the public and the duty to the legal profession. Standards at 10. See In re
Sanchez, 29 DB Rptr at 31. Her actions in selling redemption rights lacked honesty and
integrity.
(2) The Attorney’s Mental State
The Standards set forth the following definitions regarding mental state of an
Respondent.
— “Intent” is the conscious objective or purpose to accomplish a particular result.
— “Knowledge” is the conscious awareness of the nature or attendant cir-
cumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result.
— “Negligence” is the failure of a lawyer to heed a substantial risk that
circumstances exist or that a result will follow, which failure is a deviation from
the standard of care that a reasonable lawyer would exercise in the situation.
Standards at 13 (emphasis added).
The distinction between intent and knowledge is that intent requires attempting to
accomplish a particular result. Given the facts stated above, it is impossible for the Trial Panel
to conclude that the Respondent acted in any manner other than intentionally. It is simply not
possible to believe that the occurrence of the events described above happened without a
specific objective or purpose in mind, that of Respondent being given money ($10,000) in
exchange for something that was no longer hers to sell.
(3) The Actual or Potential injury,
The third inquiry when examining the ABA Standards is assessing the injury, or
potential injury, which occurred or could have occurred as a result of the actions of the
Respondent. Injury can be actual or potential. Standards § 3.0(c). The Respondent appears to
have actually injured at least four companies that purchased redemption rights after the initial
sale of those rights. The total injury to those four companies was at least $10,000. The Trial
Panel notes that the companies injured were not clients, but does not find that an important
factor in this inquiry. Thus, there was actual injury stemming from the Respondent’s violations
of RPC 8.4(a)(2) and (3).
Further, failure to cooperate with the Bar’s investigation of a Respondent’s conduct has
been found to cause actual injury to both the legal profession and the public. In re Schaffner,
325 Or 421, 939 P2d 39 (1997); In re Miles, 324 Or 218, 221–22, 923 P2d 1219 (1996); In re
Haws, 310 Or 741, 753–54, 801 P2d 818 (1990); see also In re Gastineau, 317 Or 545, 558,
Cite as In re Rinks, 31 DB Rptr 121 (2017)
128
857 P2d 136 (1993) (court concluded that, when a lawyer persisted in his failure to respond to
the Bar’s inquiries, the Bar was prejudiced because the Bar had to investigate in a more time-
consuming way, and the public respect for the Bar was diminished because the Bar could not
provide a timely and informed response to complaints); In re Ireland, 29 DB Rptr 53, 60
(2015). Thus, the Respondent’s violation of RPC 8.1(a)(2) also caused injury, though not an
injury easily stated in terms of dollars.
Without considering aggravating or mitigating circumstances, the Standards establish
levels of sanctions that are appropriate based on the nature of the duty violated, mental state of
the Respondent, and injury. The possible sanctions based on the analysis above range from
admonition to disbarment. Standards §§ 5.11–5.14.
(4) The existence of Aggravating and Mitigating Circumstances.
The fourth and final factor to take into consideration as a Trial Panel when determining
an appropriate sanction is the existence of aggravating or mitigating circumstances. As
discussed below, the record establishes several aggravating circumstances, but very little in the
way of mitigating circumstances.
a. Aggravating Circumstances
A list of aggravating factors are provided in Standards § 9.22; those that are raised by
this case are discussed below.
Aggravating Factor: Standards § 9.22(b) (dishonest or selfish motive).
The acts of the Respondent clearly indicate that she profited from her actions in selling
the redemption rights to her property repeatedly. The Bar provided evidence of at least four
fraudulent sales of redemption rights. The money from those sales appears to have been
pocketed by the Respondent; thus, a dishonest or selfish motive is established.
Aggravating Factor: Standards § 9.22(d) (multiple offenses).
The Respondent perpetrated a fraud at least four times per the evidence presented by
the Bar. The aggravating factor of multiple offenses has been established.
Aggravating Factor: Standards § 9.22(e) (bad-faith obstruction of the disciplinary pro-
ceeding by intentionally failing to comply with rules or orders of the disciplinary agency).
The Respondent did not respond in any way to this disciplinary process. There is no
way for the Trial Panel to conclude that this failure was anything other than intentional on
behalf of the Respondent. The Disciplinary Counsel’s Office contacted the Respondent, and
she never responded. Therefore, the Trial Panel finds it clearly established that this aggravating
factor exists in this case.
Cite as In re Rinks, 31 DB Rptr 121 (2017)
129
Aggravating Factor: Standards § 9.22(g) (refusal to acknowledge wrongful nature of
conduct).
The Bar states that it is unaware of any repayment made by the Respondent. Bar
Sanctions Memorandum at 11. The Respondent was sued in small claims court in Multnomah
County by one of the buyers of her redemption rights. Bar Sanctions Memorandum, Exhibit 7.
Therefore, it is clear that at least at the time of that suit, that injured party had not been made
whole. Further, the Respondent did not file any paper in this proceeding on this issue. Absent
any evidence to the contrary, the Trial Panel finds that the Respondent has in no way
acknowledged the wrongful nature of her conduct.
Aggravating Factor: Standards § 9.22(h) (vulnerability of victim).
The Bar argues that regardless of the sophistication of the purchasers, the pattern
followed by the Respondent made it impossible for them to discover her deceptive practices
until it was too late. The Trial Panel is not completely convinced by this argument. The buyers
at issue knew they were approaching a home owner likely to lose her home to foreclosure in
the coming days. The buyers are knowingly dealing with people who are desperate, and
therefore should carry out such business with an abundance of caution. Further, the buyers
should have known that a homeowner in the situation of the Respondent might be desperate
for money. We do not find that such buyers would be vulnerable victims, and do not find that
the “vulnerability of victim” is an aggravating factor in this case.
Aggravating Factor: Standards § 9.22(i) (substantial experience in the practice of law).
The Bar points to the Respondent’s lengthy admission to practice not only in Oregon,
but also in New Jersey and Pennsylvania, as substantive aggravating factors. The Trial Panel
does not find that this aggravating factor applies. There is nothing in the record before the Trial
Panel to establish that real property transactions were a part of the Respondent’s practice area,
or that the sale of redemption rights is an area in which she had any level of experience. It has
not been established, for example, that the Respondent spent years buying and selling real
estate for clients or practicing foreclosure law, therefore no particular knowledge or expertise
in the area of redemption rights is established by the record. Therefore, the trial panel finds
that this is not an aggravating factor in this case.
Aggravating Factor: Standards § 9.22(j) (indifference to making restitution).
As discussed above regarding Standards § 9.22(g), neither the Bar nor the Trial Panel
is aware of any repayment to the buyers victimized by Respondent. This tends to establish
indifference by the Respondent towards making restitution.
Aggravating Factor: Standards § 9.22(k) (illegal conduct, including that involving the use
of controlled substances).
The conduct of the Respondent appears to have been illegal; thus, this aggravating
factor is clearly established.
Cite as In re Rinks, 31 DB Rptr 121 (2017)
130
B. Mitigating Circumstances
Given that the Respondent presented no pleadings, there is very little to establish the
existence of any of the mitigating factors. The Standard’s Section 9.32 lists mitigating factors.
The only mitigating factor that the Trial Panel can find applies to the Respondent is 9.32: “(a)
absence of a prior disciplinary record.” The record does not establish any previous disciplinary
record for the Respondent.
The Trial Panel notes that absent aggravating or mitigating circumstances, upon
application of the factors set out in Standards § 3.0, disbarment is “generally appropriate in
cases involving commission of a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving
dishonesty, fraud, deceit, or misrepresentation” and when the “lawyer engages in serious
criminal conduct a necessary element of which includes intentional interference with the
administration of justice, false swearing, misrepresentation, fraud, extortion, mis-
appropriation, or theft,” or when the “lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on
the lawyer’s fitness to practice.” Standards §§ 5.1, 5.11 (emphasis added). Given the
Respondent’s actions, and the ABA Standards, it is impossible for the Trial Panel to find that
any sanction other than disbarment is appropriate.
Adding the above discussed aggravating and mitigating circumstances to the
determination of the appropriate sanction does not affect the Trial Panel’s decision. There are
many aggravating circumstances, and only one mitigating circumstance, and the Trial Panel
therefore concludes that disbarment is still the appropriate sanction.
(5) The sanctions’ consistency with Oregon Law.
The final task of the Trial Panel is to determine if its proposed sanction is consistent
with Oregon Law. In Oregon, lengthy suspensions have been imposed on lawyers who have
engaged in conduct somewhat similar to the conduct at issue in the present proceeding.
Misrepresentations to the court and others for the lawyer’s benefit have yielded long-term
suspensions. See, e.g., In re Davenport, 334 Or 298, 49 P3d 91, modified on recons, 335 Or
67, 57 P3d 897 (2002) (lawyer suspended for two years for knowingly giving false testimony
under oath during bankruptcy examination). See also In re Claussen, 322 Or 466, 909 P2d 862
(1996) (lawyer, without prior disciplinary history, suspended for one year for making material
misrepresentations to bankruptcy court, failing to disclose connection to creditor or adverse
interest and settlement of claims against debtor); In re Sundstrom, 250 Or 404, 442 P2d 604
(1968), receded from in In re Laury, 300 Or 65, 706 P2d 935 (1985) (lawyer suspended 5 years
for giving willfully deceitful testimony before the trial committee, being unavailable to clients
and the public, misappropriating client funds, and issuing insufficient-funds bank checks); In
Cite as In re Rinks, 31 DB Rptr 121 (2017)
131
re Dang, 29 DB Rptr 46, 51 (2015).
7
A distinguishing characteristic between In re Dang and
the present case is that Dang participated in the disciplinary process. From In re Dang, it is
clear to the Trial Panel that participating in the disciplinary process shows some interest in
maintaining the right to practice law, and regaining the trust lost by the Respondent’s actions.
Similar to the above discussed cases, in In re Gregg, the Oregon Supreme Court held
that “[i]f it appears likely that a disciplined attorney may become rehabilitated within a few
years, and therefore, should be permitted to resume the practice of law, suspension and not
disbarment is the appropriate discipline.” In re Gregg, 252 Or 174, 179, 446 P2d 123, modified,
252 Or 174, 448 P2d 547 (1968), receded from in In re Laury, 300 Or 65, 75–76 & n 5, 706
P2d 935 (1985). However, the Trial Panel cannot reach that conclusion here. We simply have
no evidence that suggests the Respondent is interested in rehabilitating, because she has never
communicated to the Panel or engaged in the disciplinary procedure.
In another case involving deceit, a Respondent lied on a restraining order, and she was
suspended for two years. However, again there are distinguishing factors from this proceeding,
because there, the lawyer did not profit from her fraud. The trial panel in that case also found
no aggravating factors, and the respondent also had a present mitigating factor of suffering
from a mental disability. See In re Staar, 324 Or 283, 312, 924 P2d 308 (1996). Here, however,
there are a number of aggravating factors and few mitigating factors; thus, the Trial Panel is
confident that a disbarment is consistent with Oregon state law.
Finally, there are other cases in which the Respondent lawyer committed theft, and was
disbarred. In In re Phinney, 354 Or 329, 311 P3d 517 (2013), for example, the lawyer was
disbarred for writing checks to himself from an association’s account, which, given the
circumstances, was tantamount to theft. In that case, the Oregon Supreme Court also examined
a number of comparable cases in which theft was alleged as the basis for disbarment. See In re
Murdock, 328 Or 18, 968 P2d 1270 (1998) (disbarment appropriate when law-firm associate
knowingly embezzled more than $9,000 from law firm); In re Laury, 300 Or 65, 76, 706 P2d
935 (1985) (disbarment appropriate when attorney converted $1,100 in client funds to his own
personal use); In re Pierson, 280 Or 513, 519, 571 P2d 907 (1977) (disbarment appropriate
when attorney converted $56,000 from client trust funds to his own personal use,
notwithstanding full restitution of the funds by the attorney).
Ms. Rinks has displayed no interest in rehabilitating or rejoining the legal profession.
She has provided the Trial Panel with no mitigating circumstances, no explanation, and no
reason to believe that she wants to maintain her license to practice law. Given this level of
7 Other examples include In re Benson, 317 Or 164, 854 P2d 466 (1993) (six-month suspension for assisting
a client in preparing and recording a fraudulent trust deed); In re Brown, 298 Or 285, 692 P2d 107 (1984),
superseded by rule as stated in In re Smith, 318 Or 47, 53 n 5, 861 P2d 1013 (1993) (two-year suspension
for preparing a false affidavit); In re Beach, 29 DB Rptr 92, 106 (2015).
Cite as In re Rinks, 31 DB Rptr 121 (2017)
132
indifference, Respondent’s behavior that led to this proceeding, and the duties Respondent
breached to the Bar and the public, we must act to protect the public.
ORDER
For the foregoing reasons, and having found by clear and convincing evidence that the
Respondent violated RPC 8.1(a)(2), 8.4(a)(2) and 8.4(a)(3), IT IS HEREBY ORDERED that
the Respondent, Kathleen Y. Rinks, be disbarred.
Respectfully submitted this 9th day of March, 2017.
By:
/s/ Kristina Reynolds
Kristina Reynolds, OSB 061262
Trial Panel Chairperson
/s/ Bryan D. Beel
Bryan D. Beel, OSB 073408
Trial Panel Member
/s/ Stephen D. Butler
Stephen D. Butler
Trial Panel Public Member
Cite as In re Yunker, 31 DB Rptr 133 (2017)
133
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-68
)
CONRAD E. YUNKER, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: Christopher R. Hardman
Disciplinary Board: None
Disposition: Violation of RPC 1.3 and RPC 1.4(b). Stipulation for
Discipline. 60-day suspension, all stayed, two-year
probation.
Effective Date of Order: June 30, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Conrad E. Yunker and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Conrad E. Yunker is suspended for 60 days, with all of the suspension stayed, pending the
successful completion of a two-year term of probation, effective ten days after approval by the
Disciplinary Board, for violation of RPC 1.3 and RPC 1.4(b).
DATED this 20
th
day of June, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ James C. Edmonds
James C. Edmonds, Region 6
Disciplinary Board Chairperson
Cite as In re Yunker, 31 DB Rptr 133 (2017)
134
STIPULATION FOR DISCIPLINE
Conrad E. Yunker, attorney at law (“Yunker”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Yunker was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 25, 1987, and has been a member of the Bar continuously since that time, having
his office and place of business in Marion County, Oregon.
3.
Yunker enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On May 21, 2016, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Yunker for alleged violations of RPC 1.3 [neglect of
a legal matter]; and RPC 1.4(b) [duty to explain a matter to the extent necessary to allow a
client to make informed decisions regarding the representation] of the Oregon Rules of
Professional Conduct. The parties intend that this stipulation set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
In August 2013, Michael P. Shubin (“Shubin”) hired Yunker to handle a civil rights
claim against the Reedsport Police Department (“Claim 1”). The state law claims were subject
to the Oregon Tort Claims Act, requiring a tort claims notice, which Yunker sent to the Mayor
and City Attorney of Reedsport in mid-September 2013.
6.
In October 2013, Yunker entered into a written fee agreement with Shubin to represent
him on Claim 1.
7.
In January 2014, Shubin was allegedly assaulted by a police officer in his home when
he called the police to deal with a disruptive dinner guest (“Claim 2”). Shubin approached
Cite as In re Yunker, 31 DB Rptr 133 (2017)
135
Yunker to also handle Claim 2. Yunker was initially receptive to representing him on Claim 2,
although they did not enter into a new fee agreement.
8.
Yunker asked an investigator to interview witnesses relevant to Claim 2 and told
Shubin that he would file a tort claim notice after obtaining the police report.
9.
In March 2014, Shubin delivered the police report on Claim 2 to Yunker, but Yunker
did not file the tort claim notice. Also by March 2014, Shubin was finding it increasingly
difficult to get timely, substantive responses to his requests for information and updates
regarding his matters.
10.
Between March and July 2014, Shubin regularly contacted Yunker and his private
investigator with questions and information related to the two cases. In early July, Shubin
began to request that the complaints in his cases (both claims) be filed promptly.
11.
The deadline for filing a tort claim notice on Claim 2 was in late July 2014. As the
deadline approached, Yunker did not attempt to calculate the deadline or inform Shubin that
he no longer intended to file a tort claim notice.
12.
In late July, Shubin began contacting Yunker with increased frequency, expressing his
desire to have both cases filed as soon as possible. Approximately three weeks later, Yunker
disclosed to Shubin that he had missed the tort-claim-notice filing deadline on Claim 2 and
that his health would require him to withdraw from representation as to both Claim 1 and Claim
2.
13.
Within the next few months, Yunker returned all the money Shubin had paid him and
withdrew from the matter.
Violations
14.
Yunker admits that, by failing to more timely attend to Shubin’s legal matter, including
ensuring that the tort claim notice in Claim 2 was properly filed, he neglected his legal matter,
in violation of RPC 1.3.
Yunker further admits that his failure to sufficiently communicate to Shubin that he
was disinterested in pursuing Claim 2, and that he had not filed, and did not plan to file, the
Cite as In re Yunker, 31 DB Rptr 133 (2017)
136
tort claim notice on Claim 2, prevented Shubin from being able to make informed decisions
regarding the representation, in violation of RPC 1.4(b).
Sanction
15.
Yunker and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Yunker’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances. Standards
§ 3.0. In determining the appropriate sanction, the court also examines the conduct of the
accused attorney in light of the court’s prior case law. In re Garvey, 325 Or 34, 42, 932 P2d
549 (1997).
a. Duty Violated. The most important ethical duties a lawyer owes are those owed
to clients. Standards at 5. Yunker violated his duty to his client to diligently
attend to his matter, which duty included the obligation to timely and effectively
communicate with his client. Standards § 4.42.
b. Mental State. The Standards recognize three possible mental states: negligent;
knowing; and intentional. Standards at 9. Yunker acted negligently and
knowingly, at various stages, in failing to attend to Shubin’s case, and in failing
to inform Shubin of necessary information regarding his case. Although
Yunker’s avoidance of the claims may have been initially negligent, it became
knowing when he was alerted of the need to act by Shubin’s inquiries but took
no action to move the matters forward. Similarly, Yunker’s election not to
inform Shubin of information related to Shubin’s cases became knowing in
advance of Yunker’s election to withdraw from the matters.
c. Injury. Both actual and potential injury are relevant to determining the sanction
in a disciplinary case. Standards § 3.0(c); In re Williams, 314 Or 530, 547, 840
P2d 1280 (1992). Yunker’s lack of diligence and failure to communicate with
Shubin regarding Claim 2 caused actual and potential injury to his client, in that
he lost his state claim, and would have lost his cause of action had he not been
able to pursue the matter federally.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Yunker has recent prior, relevant discipline for the same and similar rule
violations: in 2011 he was reprimanded for violations of RPC 1.3 and
1.4(a), for failing to timely file a petition to confirm an arbitration
award, which resulted with in the case being dismissed without
Cite as In re Yunker, 31 DB Rptr 133 (2017)
137
prejudice, and for failing to communicate with his client about develop-
ments in the matter. In re Yunker, 25 DB Rptr 50 (2011). Standards
§ 9.22(a); see also Standards § 8.2.
2. There is a pattern of misconduct over the course of several years, as
Yunker’s prior discipline involved similar misconduct as his conduct in
this matter. Standards § 9.22(c).
3. Substantial experience in the practice of law (over 25 years at the time
of the misconduct). Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards § 9.32(b).
2. Yunker was reportedly suffering from unidentified personal health
issues at the time of at least some of the misconduct in this matter; health
issues which his counsel asserts are now resolved. These health issues
purportedly caused Yunker to be absent from his office for extended
periods of time and diverted his attention from Shubin’s matters.
Standards § 9.32(c).
3. Timely, good faith efforts to make restitution, insofar as Yunker
returned all of the money he received from Shubin at the time that he
withdrew. Standards § 9.32(d).
4. Full and free disclosure and cooperative attitude toward disciplinary
proceedings. Standards § 9.32(e).
5. Yunker provided support for his good character and reputation in the
legal community. Standards § 9.32(g).
6. Yunker expressed remorse for his actions, including by refunding all of
the fees paid by his client. Standards § 9.32(l).
16.
Under the ABA Standards, a suspension is generally appropriate when a lawyer know-
ingly fails to perform services for a client and causes injury or potential injury, or when a
lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
Standards § 4.42(a), (b). A suspension is also generally appropriate when a lawyer has been
reprimanded for the same or similar misconduct and engages in further similar acts of
misconduct that cause injury or potential injury to a client. Standards § 8.2.
17.
Generally, lawyers who knowingly neglect a legal matter or fail to keep clients
informed are suspended. In re Snyder, 348 Or 307, 321, 232 P3d 952 (2010). Further, prior
Cite as In re Yunker, 31 DB Rptr 133 (2017)
138
cases indicate a 30- to 60-day suspension would be an appropriate sanction for neglect and
failure to communicate under similar circumstances. See In re Redden, 342 Or 393, 153 P3d
113 (2007) (60-day suspension for lawyer’s failure to complete a client’s child support
arrearage matter for nearly two years); In re Schaffner, 323 Or 472, 918 P2d 803 (1996)
(attorney suspended for 120 days, 60 days of which were attributed to lawyer’s knowing
neglect of clients’ case for several months by failing to communicate with clients and opposing
counsel); In re Colby, 24 DB Rptr 47 (2010) (30-day suspension for attorney who failed to
adequately communicate with clients and failed to take action in two client matters, resulting
in the clients’ claims being dismissed by the court for lack of prosecution).
18.
BR 6.2 recognizes that probation can be appropriate and permits a suspension to be
stayed pending the successful completion of a probation. See also Standards § 2.7 (probation
can be imposed alone or with a suspension and is an appropriate sanction for conduct which
may be corrected). In addition to a period of suspension, a period of probation designed to
ensure the adoption and continuation of better practices will best serve the purpose of
protecting clients, the public, and the legal system.
19.
Consistent with the Standards and Oregon case law, the parties agree that Yunker shall
be suspended for 60 days for his violations of RPC 1.3 and RPC 1.4(b), with all of the
suspension stayed, pending Yunker’s successful completion of a two-year term of probation.
The sanction shall be effective ten days after approval by the Disciplinary Board (the “effective
date”).
20.
Probation shall commence upon the effective date and shall continue for a period of
two years, ending on the day prior to the second year anniversary of the effective date (the
“period of probation”). During the period of probation, Yunker shall abide by the following
conditions:
(a) Yunker shall comply with all provisions of this Stipulation for Discipline, the
Rules of Professional Conduct applicable to Oregon lawyers, and ORS Chapter
9.
(b) Within seven days of the effective date, Yunker shall contact the Professional
Liability Fund (PLF) and schedule an appointment on the soonest date available
to consult with PLF practice management advisors in order to obtain practice
management advice. Yunker shall schedule the first available appointment with
the PLF and notify the Bar of the time and date of the appointment.
(c) Yunker shall attend the appointment with the PLF practice management advisor
and seek advice and assistance regarding procedures for diligently pursuing
Cite as In re Yunker, 31 DB Rptr 133 (2017)
139
client matters; communicating with clients; effectively managing a client
caseload; and calendaring, managing, and tracking correspondence and dead-
lines. Yunker will also seek information and advice regarding updating his case
management systems and what technological solutions are available for doing
so. No later than 30 days after recommendations are made by the PLF, Yunker
shall adopt and implement those recommendations.
(d) No later than 60 days after recommendations are made by the PLF, Yunker shall
provide a copy of the Office Practice Assessment from the PLF and file a report
with Disciplinary Counsel’s Office stating the date of his consultation(s) with
the PLF; identifying the recommendations that he has adopted and imple-
mented; and identifying the specific recommendations he has not implemented
and explaining why he has not adopted and implemented those recom-
mendations.
(e) Gary Abbott Parks shall serve as Yunker’s probation supervisor (“Supervisor”).
Yunker shall cooperate and comply with all reasonable requests made by Super-
visor that Supervisor, in his sole discretion, determines are designed to achieve
the purpose of the probation and the protection of Yunker’s clients, the
profession, the legal system, and the public. Beginning with the first month of
the period of probation, Yunker shall meet with Supervisor in person at least
once a month for the purpose of reviewing the status of Yunker’s law practice
and his performance of legal services on the behalf of clients. Each month
during the period of probation, Supervisor shall conduct a random audit of 10
files or 10% of Yunker’s active files, whichever is more, to determine whether
Yunker is timely, competently, diligently, and ethically attending to matters,
adequately communicating with clients and others involved in his cases,
monitoring and calendaring deadlines, and taking reasonably practicable steps
to protect his clients’ interests upon the termination of employment.
(f) During the period of probation, Yunker shall attend not less than 12 CLE
accredited programs, for a total of 24 credit hours, which shall emphasize law
practice, client, and case management, as well as adequately and competently
utilizing technology in his law practice. These credit hours shall be in addition
to those MCLE credit hours required of Yunker for his normal MCLE reporting
period. The Ethics School requirement does not count towards the 24 hours
needed.
(g) Each month during the period of probation, Yunker shall review all client files
to ensure that he is timely attending to his clients’ matters, maintaining adequate
communication with clients, the court, and opposing counsel, and staying cur-
rent on deadlines and other important dates.
Cite as In re Yunker, 31 DB Rptr 133 (2017)
140
(h) On a quarterly basis, on dates to be established by Disciplinary Counsel
beginning no later than 90 days after the effective date, Yunker shall submit to
Disciplinary Counsel’s Office a written “Compliance Report,” approved as to
substance by Supervisor, advising whether Yunker is in compliance with the
terms of this agreement. In the event that Yunker has not complied with any
term of the agreement, the Compliance Report shall describe the non-
compliance and the reason for it.
(i) Throughout the term of probation, Yunker shall diligently attend to client
matters and adequately communicate with clients regarding their cases.
(j) Yunker authorizes Supervisor to communicate with Disciplinary Counsel
regarding his compliance or non-compliance with the terms of this agreement,
and to release to Disciplinary Counsel any information necessary to permit
Disciplinary Counsel to assess Yunker’s compliance.
(k) Yunker is responsible for any costs required under the terms of this stipulation
and the terms of probation.
(l) Yunker’s failure to comply with any term of this agreement, including condi-
tions of timely and truthfully reporting to Disciplinary Counsel’s Office, or with
any reasonable request of Supervisor, shall constitute a basis for the revocation
of probation and imposition of the stayed portion of the suspension.
(m) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to
Disciplinary Counsel on or before its due date.
(n) The SPRB’s decision to bring a formal complaint against Yunker for unethical
conduct that occurred or continued during the period of his probation shall also
constitute a basis for revocation of the probation and imposition of the stayed
portion of the suspension.
21.
In the event Yunker’s probation is revoked and the stayed suspension imposed, Yunker
acknowledges that he has certain duties and responsibilities under the Rules of Professional
Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable prejudice to
his clients during the term of his suspension. Should this contingency occur, Yunker will
arrange for an active member of the Bar to either take possession of or have ongoing access to
Yunker’s client files and serve as the contact person for clients in need of the files during the
term of his suspension. Additionally, Yunker will immediately (within 72 hours of notice of
the revocation) provide DCO with the name of the attorney who agrees to accept this respon-
sibility.
Cite as In re Yunker, 31 DB Rptr 133 (2017)
141
22.
In the event Yunker’s probation is revoked and the stayed suspension imposed, Yunker
acknowledges that reinstatement is not automatic on expiration of the period of suspension and
that he is required to comply with the applicable provisions of Title 8 of the Bar Rules of
Procedure. Yunker also acknowledges that during any term of suspension, he cannot hold
himself out as an active member of the Bar or provide legal services or advice until he is
notified that his license to practice has been reinstated.
23.
Yunker acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule is a violation of
his probation for which his probation may be revoked and the stayed suspension imposed. This
requirement is in addition to any other provision of this agreement that requires Yunker to
attend or obtain continuing legal education (CLE) credit hours.
24.
Yunker represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Yunker is admitted: Washington.
25.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 2nd day of May, 2017.
/s/ Conrad E. Yunker
Conrad E. Yunker, OSB No. 873740
APPROVED AS TO FORM AND CONTENT:
/s/ Christopher R. Hardman
Christopher R. Hardman, OSB No. 792567
EXECUTED this 16th day of May, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett, OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Haglund, 31 DB Rptr 142 (2017)
142
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-103
)
MICHAEL E. HAGLUND, )
)
Accused. )
Counsel for the Bar: Theodore W. Reuter
Counsel for the Accused: Roy Pulvers
Disciplinary Board: None.
Disposition: Violation of RPC 1.7(a) and RPC 1.16(a)(1).
Stipulation for Discipline. Public Reprimand.
Effective Date of Order: June 22, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Michael E. Haglund and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Michael E. Haglund is publicly reprimanded for violations of RPC 1.7(a) and RPC 1.16(a)(1).
DATED this 22nd day of June, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Michael E. Haglund, attorney at law (“Haglund”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Haglund, 31 DB Rptr 142 (2017)
143
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Haglund was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 26, 1977, and has been a member of the Bar continuously since that time, having
his office and place of business in Multnomah County, Oregon.
3.
Haglund enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On July 9, 2016, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Haglund for alleged violations of RPC 1.7(a) (current-
client conflict of interest) and RPC 1.16(a)(1) (obligation to withdraw where continued
representation will violate the RPCs or other law) of the Oregon Rules of Professional Conduct.
The parties intend that this stipulation set forth all relevant facts, violations and the agreed-
upon sanction as a final disposition of this proceeding.
Facts
5.
In February 2013, Haglund agreed to represent brothers Stewart Butler (“Stewart”) and
Robert Butler (“Robert”) in a guardianship and conservatorship proceeding in response to their
concerns about the potential financial abuse of their mother. Although Haglund did not
regularly handle estate or probate matters, he agreed to help the brothers because Stewart had
been Haglund’s long-time client.
6.
The same day Haglund initiated a guardianship and conservatorship proceeding on
behalf of Stewart and Robert, their mother passed away. Haglund then initiated a probate of
their mother’s estate (“Estate Proceeding”). The single purpose of the probate was to
investigate a potential claim on behalf of the estate. The estate had no other assets, which were
all in trust.
7.
While the Estate Proceeding was still open, a dispute arose between Stewart and Robert
regarding the administration of their father’s trust (“Trust Dispute”). Haglund erroneously
Cite as In re Haglund, 31 DB Rptr 142 (2017)
144
believed that his representation of Stewart and Robert as the personal representatives in the
Estate Proceeding did not preclude him from bringing an action against Robert on behalf of
Stewart as the trustees in the Trust Dispute. To the extent that Haglund may have been
permitted by RPC 1.7(b) to represent Stewart in the Trust Dispute, Haglund did not obtain
informed consent, confirmed in writing, from either Stewart or Robert. Robert Butler was
represented by separate counsel during part of the trust dispute, and that counsel did not assert
that Mr. Haglund had a conflict.
8.
Four months after Robert objected to Haglund’s representation of Stewart in the Trust
Dispute and three months after Robert filed a Bar complaint, that Haglund withdrew from his
representation of Stewart. Mr. Haglund withdrew promptly once he retained counsel in
response to the bar complaint, who explained that Oregon law treats the personal representative
as an individual client and not just as a representative of the estate. He also voluntarily
renounced any fee which he had earned from work potentially implicated by a conflict of
interest and apologized to the complainant, during the investigation.
Violations
9.
Haglund admits that his representation of Stewart in the Trust Dispute against Robert
was a current-client conflict of interest that violated RPC 1.7(a). Haglund further admits that
his failure to sooner recognize the conflict and extract himself from the Trust Dispute
amounted to a continuing conflict that violated RPC 1.16(a)(1).
Sanction
10.
Haglund and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Haglund’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Haglund violated his duty to his clients to avoid conflicts of
interest. Standards § 4.3. The Standards provide that the most important ethical
duties are those which lawyers owe to clients. Standards at 5.
b. Mental State. Haglund acted knowingly. That is, he acted with the conscious
awareness of the nature or attendant circumstances of the conduct but without
the conscious objective or purpose to accomplish a particular result. Standards
at 9. For the purposes of determining a lawyer’s knowledge of the existence of
a conflict of interest, all facts which the lawyer knew, or by exercise of
Cite as In re Haglund, 31 DB Rptr 142 (2017)
145
reasonable care should have known, are attributed to the lawyer. RPC 1.0(h).
Haglund knew that he was an attorney for Robert as a personal representative
in the Estate Proceeding at the point in time that he brought suit against him
individually in the Trust Dispute.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). In this case, the reputation of
the profession was potentially and actually injured by impropriety of a lawyer
prosecuting a case against his current client. Robert’s interests were also
potentially and actually harmed when actions were taken against him by his
current attorney. See In re Campbell, 345 Or 670, 688, 202 P3d 871 (2009)
(indicating multiple-client conflicts result in actual harm).
d. Aggravating Circumstances. Aggravating circumstances include:
1. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Full and free disclosure to the bar and cooperative attitude towards pro-
ceedings Standards § 9.32(e). Haglund was forthright regarding his
conduct and the consequences of that conduct.
3. Good character or reputation. Standards § 9.32(g). Haglund provided
information that supporting that he has been a leader in the Bar
encouraging pro bono representation by lawyers for nearly forty years,
and he is generally well regarded by his fellow legal professionals.
4. Remorse. Standards § 9.32(l). Haglund voluntarily renounced any fee
which he earned from the work potentially implicated by this conflict of
interest and apologized before any formal determination of wrong doing
had been made.
11.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
of a conflict of interest and does not fully disclose to a client the possible effect of that conflict,
and causes injury or potential injury to a client. Standards § 4.32. In this case, mitigation
significantly outweighs aggravation, making a public reprimand the appropriate sanction.
12.
A public reprimand is also in keeping with Oregon cases for conflicts of interest which
caused minimal harm, and where mitigating factors strongly outweigh any aggravating ones.
In re Howser, 329 Or 404, 413, 987 P2d 496 (1999) (so stating). See also In re Cohen, 316 Or
657, 664, 853 P2d 286 (1993) (imposing reprimand in knowing-conflict case when mitigating
Cite as In re Haglund, 31 DB Rptr 142 (2017)
146
factors outweighed aggravating factors); In re O’Rourke, 28 DB Rptr 3 (2014) (lawyer with
aggravating and mitigating factors nearly mirroring Haglund’s was reprimanded where he
assisted husband in removing property from a trust he helped wife set up, contrary to the terms
of that trust); In re Dole, 25 DB Rptr 56 (2011) (lawyer reprimanded after he represented
parents, and then parent and children, and then child adverse to parent without adequate
disclosures all in relation to the same entity and family trusts, and where mitigation was twice
that of his aggravating factors).
13.
Consistent with the Standards and Oregon case law, the parties agree that Haglund
shall be publicly reprimanded for his violations of RPC 1.7(a) and RPC 1.16(a)(1). The
sanction shall be effective upon approval by the Disciplinary Board.
14.
Haglund acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension.
15.
Haglund represents that, apart from Oregon, he is not admitted to practice law (whether
his current status is active, inactive, or suspended) in any other jurisdictions.
16.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 7th day of June, 2016.
/s/ Michael E. Haglund
Michael E. Haglund
OSB No. 772030
EXECUTED this 20th day of June, 2016.
OREGON STATE BAR
By: /s/ Theodore W. Reuter
Theodore W. Reuter
OSB No. 084529
Assistant Disciplinary Counsel
Cite as In re Carolan, 31 DB Rptr 147 (2017)
147
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 14-23 & 14-28
)
KEVIN CAROLAN, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Nik T. Chourey
Counsel for the Accused: David J. Elkanich
Disciplinary Board: Paul B. Heatherman, Chairperson
Jet Harris
Steven P. Bjerke, Public Member
Disposition: Trial Panel Opinion. Dismissed.
Effective Date of Opinion: June 27, 2017
TRIAL PANEL OPINION
This matter came before a Trial Panel of the Disciplinary Board consisting of Paul B.
Heatherman, Chair; Jet Harris, Member; and Steven P. Bjerke, Public Member, on January 23-
25, 2017. The Oregon State Bar is represented by Amber Bevacqua-Lynott, Chief Assistant
Disciplinary Counsel. The Accused is represented by David J. Elkanich. The trial panel has
considered the pleadings, exhibits and testimony of witnesses. Based on the findings and
conclusion made below, we find that the Accused has violated no rules of professional conduct.
INTRODUCTION
The Bar filed its Formal Complaint against the Accused on February 12, 2015. The
Accused filed an Answer to the Formal Complaint on or about April 1, 2015. The Bar sub-
sequently filed an Amended Formal Complaint on or about August 19, 2016, and the Accused
filed an Answer to the Amended Formal Complaint on October 4, 2016.
FACTS & FINDINGS
At all relevant times, the Accused, Kevin Carolan, was an attorney at law, duly
admitted by the Supreme Court of the State of Oregon to practice law in this state and a member
Cite as In re Carolan, 31 DB Rptr 147 (2017)
148
of the Oregon State Bar, having his office and place of business in the County of Deschutes,
State of Oregon.
AVERY MATTER (Case No. 14-23)
James Avery (and his former wife, Catherine Avery) retained the Accused to look into
post-conviction relief options based on ineffective assistance of counsel in two criminal cases,
one in Oregon and one in Maryland. The Accused’s engagement agreement asked the Averys
to acknowledge that they understood the Accused may assign work to an associate within or
outside of his firm. The Accused contacted attorney Jerome Larkin, through the Oregon
Women Lawyer’s Association listserv for contract lawyers, to research pertinent legal issues.
The Accused agreed to pay Mr. Larkin $50/hour for his work. The Accused billed the Averys
at $165/hour for all lawyer time, including time spent by Mr. Larkin. On or about November
4, 2011, Mr. Larkin notified the Accused that he had reached his 10-hour limit. He provided
to the Accused a memo of his research.
The Averys paid an initial retainer deposit of $2,500 to the Accused’s trust account,
and agreed to replenish that amount when it was depleted. After the initial work was performed
on the case, the Accused invoiced the Averys for legal services. At that point, the trust funds
were depleted. On or about January 27, 2012, the Accused told Ms. Avery that he could not
continue working on the case unless she paid the outstanding amount due of $706 and provided
an additional $2,000 retainer. Ms. Avery took some time to raise the funds, and provided the
Accused with at least an additional $2,000 in total between February and mid-April 2012.
Once the Accused received the additional funds in trust, he contacted Mr. Larkin to ask
if he was still available to assist with the matter. Mr. Larkin reported he was no longer available
and the Accused then hired another contract attorney, Sarah Foreman, a former deputy district
attorney and a personal friend, to assist him with the case. The Accused agreed to pay Ms.
Foreman $75/hour for her work.
In September of 2012, the Averys terminated the Accused and asked for a refund and
copies of the file, including copies of any Oregon and Maryland records the Accused had
obtained. The Accused refunded about $600 to the Averys and gave them a redacted version
of Mr. Larkin’s research memo.
At the hearing, an expert for the Bar and an expert for the Accused testified to con-
flicting opinions on whether the Accused’s conduct constituted incompetent representation.
COWAN/WINSTEAD MATTER (Case No. 14-28)
On or about April 8, 2011, Carol Winstead was sentenced to 30 days in jail following
a conviction for theft related to misappropriation of money from the Kids Club of Harney
County — a nonprofit organization at which she had been the executive director. Ms. Winstead
had been represented by attorney Markku Sario in entering her plea. She tried unsuccessfully
to withdraw her plea at sentencing. On or about April 15, 2011, Cran Cowan, a friend of Ms.
Cite as In re Carolan, 31 DB Rptr 147 (2017)
149
Winstead, consulted with the Accused regarding an appeal of Ms. Winstead’s criminal con-
viction and other matters, including a potential malpractice lawsuit against Mr. Sario and a law
suit against the victim, Sharon Davis. On or about April 19, 2011, the Accused opened a file
and Mr. Cowan agreed to pay the Accused $200/hour to represent Ms. Winstead. Mr. Cowan
sent the Accused a $1000 retainer.
Ms. Winstead’s consent was delayed as she was in jail at the time, but the Accused,
with Mr. Cowan’s assistance, obtained a signed engagement/fee agreement from Ms. Winstead
on or about May 5, 2011. The agreement authorized the Accused to file a notice of appeal and
to review Ms. Winstead’s case for possible causes of action against Mr. Sario and the alleged
victim, Sharon Davis. Ms. Winstead also requested that the Accused research possible claims
against the county DA’s office, the victim, and the trial judge.
8
Also on May 5, 2011, the Accused made inquiries of the technical support arm of the
court of appeals e-filing system, expressing that he had registered and needed his password to
complete a filing the next day. The Accused was apparently manually registered by the
technical team to facilitate this. The Accused had never e-filed before.
The Accused electronically filed Ms. Winstead’s notice of appeal the next day, (May
6, 2011) which was within the filing deadline.
9
He received the following confirmation:
“The document has been successfully submitted to the Oregon Court of
Appeals. You will receive notification of the acceptance or rejection of this
document from the Clerk’s Office.”
Thereafter, he received nothing from the Clerk’s Office, either accepting or rejecting
the filing. Because he never received a second email, the Accused assumed that the Notice of
Appeal was successfully filed. On or about June 29, 2011, the Accused told Mr. Cowan that
he was still trying to figure out whether Ms. Winstead had a viable appeal.
After further investigation and research of the merits of the appeal, on July 25, 2011,
the Accused advised Ms. Winstead (via voicemail) that there was not a good chance of
prevailing in the appeal. Over the following few days, and in particular on July 28, 2011, the
Accused, Ms. Winstead, and Mr. Cowan communicated regarding options going forward.
During those communications, Ms. Winstead told the Accused that she no longer wished to
8 Ms. Winstead did not appear at the Disciplinary Hearing.
9 At the hearing, the Bar argued that the Accused filed the Notice of appeal just inside of the 30-day deadline,
suggesting incompetence. However, one of the Bar’s expert witnesses, Jason Thompson, testified that filing
the day before the deadline is “going to be fine.”
Cite as In re Carolan, 31 DB Rptr 147 (2017)
150
pursue the appeal. (Although the Bar argued to the contrary, we find the Accused’s account on
this to be persuasive.)
10
The Accused’s representation of Ms. Winstead was subsequently terminated on
September 16, 2011, and he provided a copy of his file to her. Mr. Cowan and/or Ms. Winstead
paid the Accused a total of $3720 (the equivalent of 18.6 hours at $200/hour). The Accused’s
records reflect 24.7 hours of time spent on the matter. Of that time the Accused spent
approximately 11.6 hours communicating with Ms. Winstead and Mr. Cowan; that total is in
large part attributable to the numerous lengthy emails Mr. Cowan sent to the Accused.
Additionally, the Accused spent over 6.8 hours reviewing documents and information from the
underlying record.
On or about October 7, 2011, after his representation had terminated, appellate court
staff first notified the Accused that the May 6, 2011, Notice of Appeal had encountered a filing
error. On or about October 21, 2011, the Accused contacted the Oregon Court of Appeals to
try to determine what had happened. He also researched whether an electronic filing could be
amended or re-filed after the deadline for filing had passed. Beginning on October 23, 2011,
the Accused made several calls and sent several emails to the Oregon Court of Appeals. Court
staff told him that the system had rejected the document because it was somehow corrupted
but they could not say why, perhaps a problem with the scanning of PDF conversion software.
The Accused and Ms. Winstead then discussed the filing error on or about October 25,
2011, via telephone and email. The Accused offered to help fix the filing error. The Accused
again understood from those communications that Ms. Winstead did not wish to pursue the
appeal. The Accused confirmed this in an email dated October 25, 2013, to Ms. Winstead. In
an email dated October 26, 2013, Ms. Winstead disputed that she did not wish to pursue the
appeal, and confirmed the Accused’s previous offer to further assist with the appeal.
In November 2013, Ms. Winstead complained to the Bar. In a letter to the Bar dated
November 4, 2013, the Accused stated, in part:
“I assumed the transaction was successful. I did not receive notice of the
rejection of the [Notice of Appeal] until October 7, 2011 when I received a
phone message from a staff person at the Court of Appeals. Immediately
after receiving this message I made several calls to the Court of Appeals,
but was told nothing more than the document had failed conversion. Next,
I contacted Ms. Winstead who reiterated her position that she did not wish
to pursue an appeal.”
10 On this contested fact, we found that the Accused’s placid demeanor, memory recollection, fluidity of speech,
and willingness to answer the questions to be supportive in establishing credibility of the testimony.
Cite as In re Carolan, 31 DB Rptr 147 (2017)
151
DISCUSSION AND CONCLUSIONS OF LAW
A. The Bar first argues that the Accused violated RPC 1.1 by failing to provide competent
representation to Avery in his post-conviction matter. We disagree. The Bar asserts that the
two contract attorneys hired by the Accused were more diligent than the Accused with their
factual investigation. Certainly the contract attorneys’ competent investigation is imputed to
the attorney that hired them, the Accused. The Bar’s expert faulted the generalities of a memo
prepared by one of the contract attorneys. The Accused’s expert, Todd Grover, testified that
the Accused was making progress and that there is no particular approach to the initial research,
which contrasted with the Bar’s expert who testified that the underlying judgments and files
should have been researched as a first step. The Panel will not micro-manage what steps an
attorney should initially review when researching a file.
B. The Bar next argues that the Accused violated RPC 1.5(a) and/or 1.5(d) when he
charged and when the Accused charged his client $165/hour for legal services that were
performed by a contract attorney at $50/hour. Both RPC 1.5(a) and (d)(2) prohibit clearly
excessive fees. RPC 1.5(d) requires the client’s informed consent to a division of fees between
lawyers:
(d) A division of a fee between lawyers who are not in the same firm
may be made only if:
(1) The client gives informed consent to the fact that there will be a
division of fees, and
(2) The total fee of the lawyers for all legal services they rendered
the client is not clearly excessive.
RPC 1.5(a) and (d).
The Bar relies upon In re Wyllie, 331 Or 606, 19 P3d 338 (2001), and In re Yacob, 318
Or 10, 860 P2d 811 (1993). In Wyllie, the attorney billed more than four-fold the amount of
time actually spent. In Yacob, the attorney withheld an additional $3,300 as attorney fees for
his associate’s time when his associate had agreed to a flat fee of $150 to perform the legal
services.
The Bar’s reasoning is as follows: When the Accused paid an hourly rate to a lawyer
outside his firm, he shared fees with that lawyer. Because this was a shared fee, he was required
by RPC 1.5(d) to obtain his client’s informed consent. Although the Accused’s fee agreement
advised the Averys that he “may assign work . . . to an associate within or outside the firm,”
the Bar contends this disclosure is insufficient. The Bar asserts that informed consent could
only be obtained by advising the client in writing of the specific rate, background, and
experience of the contract lawyer. The Bar further concludes that billing contract attorney
services as legal services at a rate greater than what the Accused paid is an excessive fee.
Cite as In re Carolan, 31 DB Rptr 147 (2017)
152
The only authority cited by the Bar in support of its contention that the Accused
improperly shared fees with Mr. Larkin is In re Potts, 301 Or 57, 718 P2d 1363 (1986). In
Potts, the court found that the attorney improperly shared fees because the fee he received was
not in proportion to the overall services rendered by that attorney. In re Potts was decided
under former DR 2-107(A), which had a proportionality component not present in RPC 1.5(d).
The determination by the Potts Court turned on the proportionality requirement. Therefore,
Potts does not provide the authority sought by the Bar in light of the proportionality analysis.
11
The Panel does not find that the Accused’s contractual arrangement with Mr. Larkin
constitutes division of a fee pursuant to RPC 1.5(d). The Panel does not agree that Yacob
supports the proposition that the Accused violated RPC 1.5(a) given what he charged his client
under these circumstances, and has no authority to and otherwise declines to expand the reach
of the holdings cited above.
C. The Bar contends that the Accused failed to provide competent representation to
Winstead, in violation of RPC 1.1, by engaging in a pattern of ignorance in his handling of
Winstead’s Notice of Appeal. The Panel disagrees. The conduct as set forth in the findings
does not rise to the level of actionable incompetence. The Bar correctly outlines the
competence standard in In re Obert, 352 Or 231, 282 P3d 825 (2012). The attorney in Obert,
however, engaged in a pattern of material mishaps, including multiple occasions where he
forgot to respond to a time-sensitive letter, and missed a deadline on filing a Notice of Appeal
on two occasions.
In this case, the conduct shown is insufficient. As the Bar’s expert acknowledged,
waiting to file the appeal the day before the deadline is not an unusual practice. The Accused
testified that he conferred with a clerk at the Court of Appeals to set up the e-filing process.
Given that, after the confirmation from the Court of Appeals that stated his filing was
“successfully submitted,” the failure to follow-up was not ideal, but not unreasonable. The
certificate of service and filing that the Accused filed was technically incorrect, but that
amounted to a clerical error with no consequence to Winstead or to the process.
The Bar further contends that, in the Notice of Appeal, the Accused included arguments
that were not permitted by statute. However, the Bar did not furnish evidence to demonstrate
that the additional arguments in the Notice of Appeal caused the court to deny, dismiss, or
otherwise harm Ms. Winstead’s case.
11 In Potts, the attorney charged the client $9,000, a clearly excessive fee under former DR 2-106(A), because
he kept no time records, had no reasonable explanation for how his fee was fixed, and relied upon a single
magazine article regarding current fees and his own intuition to establish his fee. The attorney also violated
former DR 2-107(A) because the total fee charged by all lawyers was excessive in light of the fact that the
accused’s fee was not in proportion to the overall services rendered. In re Potts, 301 Or 57 (1986).
Cite as In re Carolan, 31 DB Rptr 147 (2017)
153
D. The Bar argues that the Accused violated RPC 1.3 and RPC 1.16(d) by neglecting Ms.
Winstead’s legal matter and failing to act to protect her interests after learning that the Notice
of Appeal had not been properly filed. The Bar is in error. The only rule that applies to this
post-termination scenario is RPC 1.16(d):
“Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled and
refunding any advance payment . . . that had not been earned . . . .”
In this case, after his client terminated the Accused, he researched the filing error and
discussed it with her. In an email, Ms. Winstead confirmed that the Accused told her he was
willing to provide further assistance. Although in a subsequent email he stated that he would
not represent her in an appeal, he offered that “it’s something we can discuss.” The two and a
half week delay in contacting his former client to inform her of the Notice of Appeal filing
error was not unreasonable per se. The Bar’s reliance on In re Castanza, 350 Or 293, 253 P3d
1057 (2011), is misplaced. The acts (more notably, omissions) attributed to the Castanza
attorney denote a stark impression that the attorney completely “dropped the ball” by ignoring
several pending tasks at issue, the totality of which put the client’s case at risk. The conduct in
this case did not reach to that level.
E. The Bar asserts that the Accused violated RPC 1.5(a) by charging and collecting a
clearly excessive fee from Winstead and Cowan. This is incorrect. The Panel found that the
Accused made multiple inquiries to get electronically linked to facilitate the filing pursuant to
his client’s instructions. He also researched potential causes of action against her former
attorney, the victim, a district attorney, and a judge. The research included the review of
documents. It was also unrefuted that the Accused necessarily reviewed voluminous emails
(including attachments) by Winstead and Cowan.
F. The Bar alleges that the Accused violated RPC 8.4(a)(3) by knowingly misrepresenting
his client and a disciplinary authority. RPC 8.4(a)(3) provides that:
“It is professional misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit or misrepresentation that reflects adversely on the
lawyer’s fitness to practice law.”
Specifically, the Bar asserts that the Accused violated RPC 8.4(a)(3) when he wrote to
the Bar to represent that he “immediately” contacted Ms. Winstead upon learning (on October
7, 2011) that the Notice of Appeal was rejected. The Bar reminds the panel that the Accused
did not contact Ms. Winstead until on or about October 25, 2011.
This argument fails. In the Accused’s November 4, 2011 letter to the Bar, the Accused
never represented that he “immediately” contacted Ms. Winstead. He stated that he “contacted
Cite as In re Carolan, 31 DB Rptr 147 (2017)
154
Ms. Winstead . . . .” The Bar’s interpretation finds no support in the express language at issue.
The Bar also contends that the Accused violated RPC 8.4(a)(3) by misrepresenting to the Client
Assistance Office that he offered to assist Ms. Winstead with the appeal, when he sent a letter
to her dated October 26, 2011, stating in part: “As far as representing you on appeal, I don’t
think I offered to do that. But it’s something we could discuss.”
At trial, the Accused testified, with a credible demeanor and conviction, (see Footnote
3) that he had offered to assist Ms. Winstead as it related to the filing. While not a model of
clarity, the Accused’s communication not to represent her on appeal does not conflict with any
statement that he was willing to assist at the filing stage of the appeal.
DISPOSITION
Based on the foregoing discussion, the Trial Panel concludes that the Bar has failed to
prove by clear and convincing evidence that the Accused committed the charged violations.
The Bar’s Complaint is dismissed.
DATED this 21st day of April, 2017.
/s/ Paul B. Heatherman
Paul B. Heatherman, Trial Panel Chairperson
/s/ Jet Harris
Jet Harris, Trial Panel Member
/s/ Steven P. Bjerke
Steven P. Bjerke, Trial Panel Public Member
Cite as In re Daily, 31 DB Rptr 155 (2017)
155
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 15-94, 16-42 & 16-58
)
MATTHEW C. DAILY, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: Michael J. Slominksi
Disciplinary Board: None
Disposition: Violation of RPC 1.4(a), RPC 1.5(c), RPC 1.15-1(a),
RPC 1.15-1(c), RPC 1.16(d), RPC 8.1(a)(2), RPC
8.1(c)(3), and RPC 8.1(c)(4). Stipulation for Discipline.
180-day suspension, formal reinstatement required.
Effective Date of Order: July 10, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Matthew C. Daily and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Matthew C. Daily is suspended for 180 days, effective ten days after approval by the Dis-
ciplinary Board for violations of RPC 1.5(c), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.16(d)
in Case No. 15-94; RPC 1.4(a) and RPC 8.1(a)(2) in Case No. 16-42; and RPC 8.1(c)(3), RPC
8.1(c)(4), and RPC 8.1(a)(2) in Case No. 16-58.
IT IS FURTHER ORDERED that Matthew C. Daily will be subject to the formal
reinstatement requirements under BR 8.1.
Cite as In re Daily, 31 DB Rptr 155 (2017)
156
DATED this 30 day of June, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Kathy Proctor
Kathy Proctor, Region 4
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Matthew C. Daily, attorney at law (“Daily”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Daily was admitted by the Oregon Supreme Court to the practice of law in Oregon on
September 18, 1992, and has been a member of the Bar continuously since that time, having
his office and place of business in Washington County, Oregon, and later in Tillamook County,
Oregon.
3.
Daily enters into this Stipulation for Discipline freely, voluntarily, and with the advice
from counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On August 11, 2016, a Formal Complaint was filed against Daily pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
the Oregon Rules of Professional Conduct (“RPC”): RPC 1.5(c) [requirement of a written fee
r trust account and maintain complete trust account records], RPC 1.15-1(c) [failure to deposit
client funds into trust], and RPC 1.16(d) [failure to return client property at the termination of
representation] in Case No. 15-94; RPC 1.4(a) [failure to keep a client reasonably informed
about the status of a matter] and RPC 8.1(a)(2) [failure to respond to DCO inquiries] in Case
No. 16-42; and RPC 8.1(a)(2) [failure to respond to DCO inquiries], RPC 8.1(c)(3) [failure to
participate in interviews with SLAC or its designees], and RPC 8.1(c)(4) [failure to participate
Cite as In re Daily, 31 DB Rptr 155 (2017)
157
in and comply with a remedial program established by SLAC or its designees] in Case No.
16-58.
The parties intend that this Stipulation for Discipline set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of the proceeding.
Case No. 15-94
OSB (CSF Lipnicki) matter
Facts
5.
In early April 2015, John Lipnicki (“Lipnicki”) hired Daily to pursue a civil dispute.
Daily agreed to draft, file and serve a complaint for a $1,500 flat fee.
6.
There was no signed, written fee agreement disclosing that the funds paid to Daily
would be considered “nonrefundable” or “earned on receipt” and would not be placed in a
lawyer trust account; nor was there a provision that the client could discharge the lawyer at
any time and, in that event, may be entitled to a refund of all or part of the fee if the services
for which the fee was paid were not completed.
7.
Pursuant to their oral flat fee agreement, Lipnicki gave Daily a $1,500 check. Although
the services for which the check was paid were not completed at the time of his receipt of the
check, Daily negotiated the check without depositing it into his lawyer trust account.
8.
Shortly after Daily began working on the matter, he was hospitalized for more than a
month. During this time, Lipnicki was not able to contact Daily despite multiple attempts via
voicemail, letter and email.
9.
In mid-May 2015, Lipnicki sent Daily a letter terminating the representation and asking
Daily to return his $1,500 payment, less any fees Daily had earned for work performed. Daily
did not respond until mid-June 2015, and did not return any fees.
10.
On June 22, 2015, Lipnicki sent Daily an email again requesting a refund of the
unearned portion of his $1,500 payment and an itemization of Daily’s charges. Daily did not
respond. On June 30, 2015, Lipnicki sent Daily a letter with the same requests. Daily did not
respond. In late July 2015, after receiving no response from Daily for over a month, Lipnicki
Cite as In re Daily, 31 DB Rptr 155 (2017)
158
applied for reimbursement from the Client Security Fund. Daily did not refund the $1,500
payment to Lipnicki until mid-September 2015.
Violations
11.
Daily admits that, by collecting an earned-on-receipt fee in absence of required terms;
failing to segregate and protect Lipnicki’s funds; failing to deposit Lipnicki’s funds into trust;
and failing upon termination to timely refund Lipnicki’s funds, he violated RPC 1.5(c), RPC
1.15-1(a), RPC 1.15-1(c), and RPC 1.16(d).
Case No. 16-42
OSB (CSF Sumandea) matter
Facts
12.
Magdalena Sumandea (“Sumandea”) hired Daily in December 2013 to represent her in
a foreclosure matter. They entered into a written fee agreement, and Sumandea paid Daily
$1,500, against which he agreed to bill $200 per hour. In October 2014, Sumandea paid Daily
another $1,500.
13.
Between December 2013 and August 2015, Daily did not notify Sumandea of develop-
ments in her case, nor did he respond to her multiple requests for updates.
14.
In August 2015, Sumandea received an eviction notice. Daily had not informed
Sumandea that eviction was imminent, nor had he kept her apprised of the status of her case.
Sumandea again attempted to contact Daily, and Daily continued to ignore her requests for
information. Sumandea lost possession of her house in October 2015.
15.
In December 2015, after Sumandea sought reimbursement of Daily’s fee from the
Client Security Fund, Disciplinary Counsel’s Office (“DCO”) requested Daily’s response to
several specific inquiries regarding his representation of Sumandea. Daily acknowledged
Sumandea’s complaint, and briefly corresponded with DCO, using his email address then on
file with the Bar (“record email address”), but did not provide a substantive response.
16.
In January 2016, at Daily’s request, DCO granted him an extension to respond to
Sumandea’s complaint; however, Daily provided no further response to Sumandea’s com-
plaint.
Cite as In re Daily, 31 DB Rptr 155 (2017)
159
Violations
17.
Daily admits that, by failing to communicate the status of Sumandea’s matter to her
and to promptly comply with Sumandea’s reasonable requests for information, he failed to
sufficiently communicate with his client in violation RPC 1.4(a).
18.
Daily further admits that his failure to respond to DCO in its investigation of the OSB
(CSF Sumandea) complaint constituted a knowing failure to respond to a lawful demand from
a disciplinary authority, in violation of RPC 8.1(a)(2).
Case No. 16-58
OSB matter
Facts
19.
In April 2015, Daily was referred to the State Lawyers Assistance Committee
(“SLAC”) for an initial inquiry to determine whether SLAC would assert jurisdiction to estab-
lish a remedial program for him. On April 29, 2015, SLAC sent Daily a letter notifying him of
the referral and enclosed copies of RPC 8.1(c) and ORS 9.568.
20.
On June 25, 2015, SLAC determined that Daily was appropriately under its jurisdiction.
SLAC notified Daily of its decision via letter on June 30, 2015. Pursuant to RPC 8.1(c), Daily
was required to cooperate with SLAC.
21.
On July 21, 2015, Daily entered into a Monitoring and Cooperation Agreement with
SLAC (the “Monitoring Agreement”). As set forth in the Monitoring Agreement, and in
addition to other requirements, Daily agreed to:
a. abstain from all alcohol and controlled substances;
b. execute all documents and releases necessary for his SLAC monitor (monitor)
to obtain information from Daily’s healthcare providers;
c. maintain in-person contact with his monitor as required by his monitor;
d. regularly attend sobriety support group and OAAP meetings, and provide atten-
dance logs immediately upon request;
e. notify his monitor within eight hours of any relapse; and,
Cite as In re Daily, 31 DB Rptr 155 (2017)
160
f. successfully complete the terms of his Washington County DUII diversion
agreement.
22.
Between July 21, 2015 and October 5, 2015, Daily failed to cooperate with SLAC, or
to comply with his Monitoring Agreement, in a number of ways, including:
a. failing to make contact with his monitor;
b. failing to respond to contact attempts from his monitor; and,
c. failing to cause a valid, signed release of information to be entered into his file
at his treatment center such that his monitor could obtain information regarding
his compliance with treatment.
23.
On October 5, 2015, Daily notified his monitor that he had returned to inpatient
treatment, but did not sign a release of information with his treatment program. Daily’s monitor
was not able to confirm, or obtain information about, Daily’s treatment.
24.
In November 2015, Daily met with his monitor and failed to provide any documents to
substantiate his compliance with the Monitoring Agreement, despite promises he would
provide such documents.
25.
Between November 2015, and late-January 2016, Daily did not answer a series of
letters or emails from his monitor. In late-January 2016, Daily contacted his monitor and
promised compliance. Thereafter, Daily did not contact his monitor or respond to his monitor’s
attempts to contact him.
26.
On February 1, 2016, Daily telephoned DCO staff. During that conversation, Daily
sounded intoxicated and admitted to being “totally drunk.”
27.
On March 7, 2016, the Washington County Circuit Court revoked Daily’s DUII
diversion program and entered a judgment of conviction. The court imposed a two-year
probation and a $2,500 fine.
28.
On March 14, 2016, Daily’s monitor referred Daily to DCO for noncooperation with
the Monitoring Agreement.
Cite as In re Daily, 31 DB Rptr 155 (2017)
161
29.
In March 2016, DCO received a referral from SLAC about Daily’s conduct. On April
7, 2016, DCO mailed a letter to Daily requesting that he respond to the facts alleged in the
SLAC referral. The letter also informed Daily that failing to respond may constitute a violation
of RPC 8.1(a)(2). The letter was addressed to Daily at the address on record with the Bar
(“record address”) and was sent by first class mail. The letter was not returned undelivered,
and Daily did not respond.
30.
By letter dated April 29, 2016, in which the April 7, 2016 letter was enclosed, DCO
informed Daily that he had not responded to the SLAC complaint, and that the matter would
be referred to the SPRB for review at its next meeting. The letter was sent via first class mail
to Daily’s record address. It was not returned undelivered, and Daily did not respond.
Violations
31.
Daily admits that, when he failed to cooperate with SLAC and abide by the terms of
his monitoring agreement, he failed to participate in interviews with SLAC and failed to
comply with a remedial program established by SLAC, in violation of RPC 8.1(c)(3) and RPC
8.1(c)(4).
32.
Daily further admits that his failure to respond to DCO in its investigation of the OSB
(SLAC) matter constituted a knowing failure to respond to a lawful demand from a disciplinary
authority, in violation of RPC 8.1(a)(2).
Sanction
33.
Daily and the Bar agree that, in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Dailey’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. The most important ethical duties a lawyer owes are to his
client. Standards at 5. Daily violated duties owed to Lipnicki to promptly
preserve and promptly return client property. Standards § 4.1. Daily violated
his duty of diligence to Sumandea when he failed to respond to her com-
munication attempts or to keep her informed on the status of her matter.
Standards § 4.4. In the Lipnicki matter, Daily violated his duties to the
profession to avoid improper fee agreements and to properly withdraw from the
Cite as In re Daily, 31 DB Rptr 155 (2017)
162
representation upon termination. Standards § 7.0. Daily further violated his
duties to the profession to cooperate with disciplinary authorities when he failed
to respond to DCO and failed to cooperate and comply with SLAC. Id.
b. Mental State. Knowledge is the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result. Standards § 1.0. Negligence is the failure of a
lawyer to heed a substantial risk that circumstances exist or that a result will
follow, which failure is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation. Id.
Daily acted negligently in failing to determine that he was obligated to deposit
Lipnicki’s advance fee into trust, but he acted knowingly when he failed to
refund the unearned portion of the fee for twelve weeks after Lipnicki
terminated the representation. Daily acted negligently in not responding to
Sumandea’s contact attempts. When Daily failed to timely respond to DCO’s
requests for information, he acted knowingly as he knew complaints were
pending against him. Finally, Daily knowingly failed to comply with the SLAC
Monitoring Agreement.
c. Injury. Both actual and potential injury are relevant to determining the sanction
in a disciplinary case. In re Williams, 312 Or 530 (1992). “Potential injury” is
the reasonably foreseeable harm to a client at the time of the lawyer’s mis-
conduct, and which, but for some intervening factor or event, would probably
have resulted from the lawyer’s misconduct. Standards § 1.0. “Injury” is harm
to a client which results from a lawyer’s misconduct. Id.
Daily’s actions resulted in actual injury to Lipnicki, who was denied the use of
his funds for four months. Lipnicki was also exposed to additional potential
injury, in that Daily did not preserve his funds in trust during the months Daily
was unavailable to work on his legal matter. Daily’s failure to respond to
Sumandea caused actual injury in the form of anxiety and frustration for her.
See In re Knappenberger, 337 Or 15, 31, 90 P3d 614 (2004).
Daily’s failure to cooperate with the Bar and SLAC caused actual harm to both
the legal profession and the public because he delayed the Bar’s investigation
and, consequently, the resolution of the complaint against him. See In re
Schaffner, 323 Or 472, 918 P2d 803 (1996); In re Miles, 324 Or 218, 923 P2d
1219 (1996); In re Haws, 310 Or 741, 753, 801 P2d 818 (1990).
d. Aggravating Circumstances. Aggravating circumstances include:
1. A pattern of misconduct (avoidance of the Bar, clients, matters, obliga-
tions, etc.). Standards § 9.22(c).
Cite as In re Daily, 31 DB Rptr 155 (2017)
163
2. Multiple offenses. Standards § 9.22(d).
3. Substantial experience in the practice of law (over 20 years at the time
of the misconduct). Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
3. Daily was experiencing severe personal and emotional problems at the
time of the misconduct, including substance abuse. Standards § 9.32(c).
34.
Under the ABA Standards, a suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12. A reprimand is generally appropriate when a lawyer is
negligent in dealing with client property and causes injury or potential injury to a client.
Standards § 4.13.
A suspension is also generally appropriate when a lawyer knowingly fails to perform
services for a client and causes injury or potential injury to a client. Standards § 4.42. A
reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable
diligence in representing a client, and causes injury or potential injury to a client. Standards
§ 4.43.
A suspension is generally appropriate when a lawyer knowingly engages in conduct
that is a violation of a duty owed as a professional, and causes injury or potential injury to a
client, the public, or the legal system. Standards § 7.2.
Although a reprimand may be appropriate for some of Daily’s misconduct, when all
charges are considered collectively, a suspension would be the presumptive sanction. Daily’s
aggravating and mitigating factors are in equipoise, and therefore do not alter the presumptive
sanction under the Standards. As a result, a period of suspension is the appropriate sanction.
Standards §§ 4.12, 4.42, 7.2. The Standards provide that where a suspension is appropriate, it
should be for a period of time equal to or greater than six months. Standards § 2.3.
35.
Oregon cases support a suspension of 180 days or more for similar collective mis-
conduct. In cases where attorneys have failed to enter into proper fee agreements or properly
handle client funds, a reprimand to a short suspension has been imposed. See In re Grimes, 25
DB Rptr 242 (2011) (attorney reprimanded for entering into an oral, flat-fee agreement and
depositing client funds into her business account, not realizing that the funds had to be
deposited and maintained in a trust account until earned); In re Fadeley, 342 Or 403, 153 P3d
Cite as In re Daily, 31 DB Rptr 155 (2017)
164
682 (2007) (lawyer suspended for 30 days where he treated funds received pursuant to an oral
fee agreement as his own and failed to deposit them in trust).
The Court has imposed a 60-day suspension where a lawyer failed to properly withdraw
from the representation in violation of RPC 1.16(d). See In re Castanza, 350 Or 293, 253 P3d
1057 (2011).
Daily’s failure to communicate with Sumandea, standing alone, would typically result
in a reprimand or a short suspension. See In re Slininger, 25 DB Rptr 8 (2011) (attorney
reprimanded when he failed to respond to his incarcerated client’s requests for assistance in
correcting the criminal judgment that erroneously stated the client was not eligible for good
time credit. A corrected judgment ultimately was entered, but not until the client had nearly
completed the full term of his sentence.); In re Snyder, 348 Or 307, 320, 232 P3d 952 (2010)
(attorney received 30-day suspension for failure to respond to his client’s status inquiries,
failure to inform the client of communications with the other side, and failure to explain the
strategy attorney decided upon regarding settlement negotiations).
A 60-day suspension would be appropriate for Daily’s failures to cooperate with
DCO’s investigations. The Court has emphasized that it has no patience for failure to cooperate
with the Bar, and it has consistently imposed a 60-day suspension for single violations of RPC
8.1(a)(2). See, e.g., In re Miles, 324 Or 218, 923 P2d 1219 (1996) (although no substantive
charges were brought, attorney was suspended for 120 days for noncooperation with the Bar
in two separate matters); In re Schaffner, 323 Or 472, 918 P2d 803 (1996) (attorney with no
prior disciplinary history suspended for 120 days; 60 each for his neglect and his failure to
cooperate with the Bar).
Suspensions of 60 to 120 days, and a formal reinstatement requirement, are commonly
imposed on lawyers who have not cooperated with SLAC in similar situations. See In re
Bennett, 23 DB Rptr 192 (2009) (attorney suspended for 60 days each for failure to cooperate
with the Bar in a disciplinary investigation and failure to cooperate with SLAC, in violation of
RPC 8.1(a)(1) and RPC 8.1(c), with formal reinstatement required); In re Andersen, 18 DB
Rptr 172 (2004) (four-month suspension imposed on lawyer who failed to cooperate with
SLAC, among other things, with formal reinstatement required).
Daily’s collective misconduct warrants a 180-day suspension, plus a formal reinstate-
ment requirement.
36.
Consistent with the Standards and Oregon case law, the parties agree that Daily shall
be suspended for 180 days for violation of RPC 1.5(c), RPC 1.15-1(a), RPC 1.15-1(c), and
RPC 1.16(d) in Case No. 15-94; RPC 1.4(a) and RPC 8.1(a)(2) in Case No. 16-42; and RPC
8.1(c)(3), RPC 8.1(c)(4), and RPC 8.1(a)(2) in Case No. 16-58, the sanction to be effective
June 1, 2017, or 10 days after approval by the Disciplinary Board, whichever is later. The
Cite as In re Daily, 31 DB Rptr 155 (2017)
165
parties further agree that Daily will be required to apply for reinstatement under BR 8.1
(“Formal Reinstatement”), which requires action by the Board of Governors and the Supreme
Court.
37.
Daily acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Daily has arranged for
the PLF to take possession of his client files. Daily has no other active files in his possession.
38.
Daily understands that reinstatement is not automatic upon the expiration of the period
of suspension and that he cannot resume the practice of law until he has taken all steps
necessary to re-attain active membership status with the Bar. Daily further understands he is
subject to the formal reinstatement requirements under BR 8.1. During the period of sus-
pension, and continuing through the date upon which Daily re-attains his active membership
status with the Bar, Daily shall not practice law or represent that he is qualified to practice law;
shall not hold himself out as a lawyer; and shall not charge or collect fees for the delivery of
legal services other than for work performed and completed prior to the period of suspension.
39.
Daily acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Daily to attend or obtain continuing legal education
(CLE) credit hours.
40.
Daily represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Daily is admitted: none.
41.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Daily, 31 DB Rptr 155 (2017)
166
EXECUTED this 14th day of June, 2017.
/s/ Matthew C. Daily
Matthew C. Daily
OSB No. 922710
EXECUTED this 27th day of June, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett, OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Collins, 31 DB Rptr 167 (2017)
167
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 17-40
)
HOWARD W. COLLINS, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 1.5(c)(3), RPC 1.15-1(c) and RPC
1.15-1(d). Stipulation for Discipline. Public Reprimand.
Effective Date of Order: July 3, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Howard W. Collins and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Howard W. Collins is publicly reprimanded for violation of RPC 1.5(c)(3), RPC 1.15-1(c) and
RPC 1.15-1(d).
DATED this 3rd day of July, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ James Edmonds
James Edmonds, Region 6
Disciplinary Board Chairperson
Cite as In re Collins, 31 DB Rptr 167 (2017)
168
STIPULATION FOR DISCIPLINE
Howard W. Collins, attorney at law (“Collins”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Collins was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 14, 1981, and has been a member of the Bar continuously since that time, having
his office and place of business in Marion County, Oregon.
3.
Collins enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On May 20, 2017, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Collins for alleged violations of Oregon Rules of
Professional Conduct (RPC) 1.5(c)(3), RPC 1.15-1(c) and RPC 1.15-1(d). The parties intend
that this stipulation set forth all relevant facts, violations, and the agreed-upon sanction as a
final disposition of this proceeding.
Facts
5.
A client (“client”) retained Collins to represent him in a criminal investigation in or
around November 2015.
6.
Client agreed to pay a $2,500 advance fee pursuant to a written fee agreement that
designated the fee as a “minimum fee, earned upon receipt.” The minimum fee was to be
credited against the overall fee, which Collins would earn at $285 per hour. The agreement did
not state that the fee would not be deposited into trust, or that if client decided to terminate
Collins’s representation, client might be entitled to a refund of all or part of the fee if the
services for which the fee was paid were not completed.
Cite as In re Collins, 31 DB Rptr 167 (2017)
169
7.
Client paid Collins $2,500 on or around November 25, 2015; Collins deposited the
funds into trust. However, by February 10, 2016, Collins withdrew all of the funds from trust
even though his total fees earned to that point in time was only $1,630.
8.
In or around June 2016, Collins informed client that the authorities had closed the
investigation and no charges would be filed. Client requested an itemized bill on or around
June 17, 2016. Collins did not provide one until October 21, 2016, after client complained to
the Bar. That itemized statement reflected a total fee of $2,084.50 based upon Collins’s activity
on the matter from November 24, 2015 through June 28, 2016. Collins sent client a $415.50
refund.
9.
At all relevant times, RPC 1.5(c)(3) provided: A lawyer shall not enter into an
arrangement for, charge or collect a fee denominated as “earned on receipt,” “nonrefundable”
or in similar terms unless it is pursuant to a written fee agreement signed by the client which
explains that: (i) the funds will not be deposited into the lawyer trust account, and (ii) the client
may discharge the lawyer at any time and in that event may be entitled to a refund of all of part
of the fee if the services for which the fee was paid are not completed.
Violations
10.
Collins admits that, by collecting a nonrefundable fee pursuant to an agreement that
did not comply with RPC 1.5(c)(3), he violated the provisions of that rule. Collins admits that,
because his fee agreement did not comply with RPC 1.5(c)(3), he was required to deposit the
client’s funds into trust and to maintain those funds in trust until earned. Accordingly, his
failure to do so violated RPC 1.15-1(c). Collins further admits that, in failing to promptly return
requested client property, he violated RPC 1.15-1(d).
Sanction
11.
Collins and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Collins’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Collins violated his duties to his client to preserve client funds.
Standards § 4.1. The Standards provide that the most important duties a lawyer
owes are those owed to clients. Standards at 5. Collins also violated his duty to
Cite as In re Collins, 31 DB Rptr 167 (2017)
170
the profession when he failed to use the required form of written fee agreement
and treated the client’s payment as earned upon receipt. Standards § 7.0.
b. Mental State. Knowledge is defined as the conscious awareness of the nature
or attendant circumstances of the conduct but without the conscious objective
or purpose to accomplish a particular result. Standards at 9. Negligence is the
failure of a lawyer to heed a substantial risk that circumstances exist or that a
result will follow, which failure is a deviation from the standard of care that a
reasonable lawyer would exercise in the situation. Id.
Collins acted negligently when he failed to include necessary language in his
flat-fee agreement and to maintain client’s funds in trust until earned. Arguably,
his failure to promptly account for and refund client’s advance fee was know-
ing.
c. Injury. Injury can either be actual or potential under the Standards. See In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Collins’s conduct resulted in
injury to client, who waited for four months to receive an accounting and refund
that should have been provided promptly upon his request.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Substantial experience in the practice of law. Standards § 9.22(i).
Collins was admitted to practice law in 1981.
2. Multiple violations. Standards § 9.22(d).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Lack of prior discipline over a lengthy career. Standards § 9.32(a).
2. Lack of dishonest or selfish motive. Standards § 9.32(b).
3. Remorse. Standards § 9.32(l).
4. A cooperative attitude toward proceedings. Standards § 9.32(e).
5. Timely good-faith effort to rectify the consequences of his misconduct.
Standards § 9.32(d).
12.
Under the ABA Standards, public reprimand is generally appropriate when an attorney
is negligent in dealing with client property and causes injury or potential injury to a client.
ABA Standards § 4.13. When a lawyer knows or should know that he is dealing
inappropriately with client property and causes injury or potential injury, suspension is
generally appropriate. Standards § 4.12. Here, the mitigating factors outweigh the aggravating
factors and warrant a public reprimand.
Cite as In re Collins, 31 DB Rptr 167 (2017)
171
13.
Recent similar cases have resulted in public reprimand for similar violations:
In re Morgan, 31 DB Rptr ___ (2017) (public reprimand). Attorney who represented
client for a period of over three years withdrew client’s cost advance from trust before costs
were incurred, and thereafter delayed for 11 months to account for and return the funds upon
request. Aggravating factors were substantial experience and multiple violations; mitigating
factors included lack of prior discipline over a long career; absence of dishonest or selfish
motive; good reputation; and remorse.
In re Kleen, 27 DB Rptr 213 (2013) (public reprimand). Attorney collected advance
costs to hire an expert in his client’s medical-malpractice claim, but never retained an expert.
He did not refund the advance for eight months after he withdrew from representation. Kleen
also engaged in neglect and failed to communicate with this client. Like Collins, Kleen had
substantial experience but no prior discipline.
14.
Consistent with the Standards and Oregon case law, the parties agree that Collins shall
be publicly reprimanded for violations of RPC 1.5(c)(3), RPC 1.15-1(c), and RPC 1.15-1(d),
the sanction to be effective upon approval by the Disciplinary Board.
15.
Collins acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension.
16.
Collins represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Collins is admitted: None.
17.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Collins, 31 DB Rptr 167 (2017)
172
EXECUTED this 21st day of June, 2017.
/s/ Howard W. Collins
Howard W. Collins, OSB No. 811909
EXECUTED this 26th day of June, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey, OSB No. 060478
Assistant Disciplinary Counsel
Cite as In re Williamson, 31 DB Rptr 173 (2017)
173
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 16-70 & 16-71
)
ROBERT C. WILLIAMSON, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: Jennifer J. Brown
Disciplinary Board: None.
Disposition: Violation of RPC 1.5(c)(3), RPC 1.6(a), and RPC
1.8(a). Stipulation for Discipline. Public Reprimand.
Effective Date of Order: July 14, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Robert C. Williamson and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Robert C. Williamson is publicly reprimanded for violations of RPC 1.5(c)(3) in Case No. 16-
70; and RPC 1.5(c)(3), RPC 1.6(a) and RPC 1.8(a) in Case No. 16-71.
DATED this 14th day of July, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ James Edmonds
James Edmonds, Region 6
Disciplinary Board Chairperson
Cite as In re Williamson, 31 DB Rptr 173 (2017)
174
STIPULATION FOR DISCIPLINE
Robert C. Williamson, attorney at law (“Williamson”), and the Oregon State Bar
(“Bar”) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Williamson was admitted by the Oregon Supreme Court to the practice of law in
Oregon on April 25, 1986, and has been a member of the Bar continuously since that time,
having his office and place of business in Marion County, Oregon.
3.
Williamson enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On October 26, 2016, a Formal Complaint was filed against Williamson pursuant to
the authorization of the State Professional Responsibility Board (“SPRB”), alleging violations
of the Oregon Rules of Professional Conduct (“RPC”): RPC 1.5(c)(3) [charging or collecting
a fee denominated as earned on receipt without a written fee agreement with required
disclosures] in Case No. 16-70; and RPC 1.5(c)(3) [charging or collecting a fee denominated
as earned on receipt without a written fee agreement with required disclosures], RPC 1.6(a)
[duty to maintain client information], and RPC 1.8(a) [improper business transaction with
client] in Case No. 16-71. The parties intend that this Stipulation for Discipline set forth all
relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding.
Facts
Case No. 16-70 – David McCaffery
5.
In December 2013, David McCaffery (“McCaffery”) was convicted of murder. In
February 2014, McCaffery retained Williamson and his associate, Jesse Barton (“Barton”), to
represent him in seeking postconviction relief.
6.
Williamson agreed to represent McCaffery for a $15,000 nonrefundable flat fee, plus
costs. There was a written fee agreement; however, the fee agreement failed to indicate that
Cite as In re Williamson, 31 DB Rptr 173 (2017)
175
the nonrefundable flat fee described therein would not be deposited into a lawyer trust account
or that McCaffery could discharge Williamson and might be entitled to a full or partial refund
if he did so. Williamson did not collect $15,000 from McCaffery and instead billed at an hourly
rate for his work.
Case No. 16-71 – Mac Wolleat
7.
Between 2011 and 2013, Mac Wolleat (“Wolleat”) was a general contractor and a client
of Williamson’s. In 2011, pursuant to a written fee agreement, Wolleat retained Williamson to
represent him in a criminal matter in which he was charged with a felony theft in the first
degree, for which Wolleat paid Williamson a flat fee of $3,000 for his legal services. The
felony was dismissed. The fee agreement failed to indicate that the nonrefundable flat fee
would not be deposited into a lawyer trust account or that Wolleat, if the representation ended
earlier than upon completion of the legal work, might be entitled to a full or partial refund.
8.
In March 2012, pursuant to a written fee agreement, Williamson agreed to represent
Wolleat in a construction contract dispute (“construction dispute”). Wolleat initially paid
Williamson $3,000, $1,000 of which was designated as a nonrefundable, “preliminary” flat
fee, earned upon receipt. The fee agreement failed to indicate that the nonrefundable flat fee
would not be deposited into a lawyer trust account or that Wolleat, if the representation ended
earlier than upon completion of the legal work, might be entitled to a full or partial refund.
9.
Williamson was not able to reach a settlement with the opposing party on Wolleat’s
behalf in the construction dispute, and in October 2012, the property owner filed suit. The
matter was set for arbitration to occur on May 15, 2013.
10.
In the interim, on or about April 3, 2012, Wolleat was arrested for DUII, and
Williamson agreed to defend him in that criminal matter. Wolleat paid Williamson a flat fee
of $3,200 for his services. However, to the extent that there was any written fee agreement for
the DUII representation, it failed to indicate that the nonrefundable flat fee would not be
deposited into a lawyer trust account or that Wolleat, if the representation ended earlier than
the completion of the legal work, might be entitled to a full or partial refund.
11.
Beginning in December 2012, Williamson asked Wolleat to do carpentry work on his
office building. Williamson and Wolleat negotiated a barter or trade agreement through which
Wolleat would trade his labor/construction services for Williamson’s legal services in the
construction dispute (“trade agreement”). This trade agreement was not formalized in any
Cite as In re Williamson, 31 DB Rptr 173 (2017)
176
written fee agreement signed by either Williamson or Wolleat. At the time the trade agreement
was struck, Williamson represented Wolleat in both the construction dispute and his DUII
criminal matter.
12.
Prior to entering into the trade agreement with Wolleat, Williamson did not insure that
the transaction and terms of the agreement were fair and reasonable to Wolleat and fully
disclosed and transmitted in writing in a manner that could be reasonably understood by
Wolleat; Wolleat was not advised in writing of the desirability of seeking nor given a
reasonable opportunity to seek the advice of independent legal counsel on the trade agreement;
and Wolleat did not give informed consent, in a writing signed by Wolleat, to the essential
terms of the trade agreement and to Williamson’s role in the transaction, including whether
Williamson was representing Wolleat in the trade agreement.
13.
On May 8, 2013, a week before the arbitration in the construction dispute, Wolleat fired
Williamson, Williamson withdrew from the representation, and Wolleat hired new counsel. In
the declaration that accompanied Williamson’s motion to withdraw, Williamson disclosed—
without prior notice to Wolleat and without obtaining Wolleat’s permission—that Wolleat had
been convicted of DUII; that he had lost his driver’s license and received other sanctions when
he was convicted; that Wolleat blamed Williamson for his conviction; and that Wolleat had
failed to appear that morning at Williamson’s office to do construction work. The arbitrator
granted the motion to withdraw on or prior to the scheduled arbitration date.
Violations
14.
Williamson admits that, by entering into an earned-on-receipt fee agreement without
including the required language, he violated RPC 1.5(c)(3) [charging or collecting a fee
denominated as earned on receipt without written fee agreement with required disclosures] in
Case No. 16-70 and Case No. 16-71.
Williamson further admits that, by revealing information relating to his representation
of Wolleat without his client’s consent, he violated RPC 1.6(a) [duty to maintain client infor-
mation] in Case No. 16-71. Finally, Williamson admits that, when he entered into a business
transaction with a client without first obtaining informed consent, he violated RPC 1.8(a)
[improper business transaction with client] in Case No. 16-71.
Sanction
15.
Williamson and the Bar agree that, in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
Cite as In re Williamson, 31 DB Rptr 173 (2017)
177
(“Standards”). The Standards require that Williamson’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Williamson violated duties to his client to preserve his client’s
confidences and to avoid conflicts of interest. Standards §§ 4.2, 4.3. The Stan-
dards presume that the most important ethical duties are those which a lawyer
owes to clients. Standards at 5.
In addition, Williamson violated his duty to the profession to refrain from
charging improper fees through the usage of an improper fee agreement.
Standards § 7.0.
b. Mental State. Williamson acted negligently when he utilized a fee agreement
in three different instances that did not include the required language and failed
to have a written agreement in a fourth matter pertaining to flat fees that com-
plied with the Rules of Professional Conduct.
When he included information about his client that was protected by RPC 1.6
in his motion to withdraw without his client’s consent, Williamson acted
knowingly (i.e., with the conscious awareness of the nature and attendant
circumstances of his conduct but without the conscious objective or purpose to
accomplish a particular result).
Williamson also acted knowingly when he entered into the trade agreement with
Wolleat and negotiated their payment arrangement without obtaining informed
consent regarding the potential conflict of interest.
c. Injury. Injury is defined as harm to a client, the public, the legal system, or the
profession which results from a lawyer’s misconduct. Potential injury is the
harm that is reasonably foreseeable at the time of the misconduct, and which,
but for some intervening factor or event, would probably have resulted from the
lawyer’s misconduct. Standards at 5. For the purposes of determining an
appropriate disciplinary sanction, the court will consider both actual and
potential injury. Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280
(1992).
Williamson caused potential injury to Wolleat when he disclosed information
about Wolleat to the arbitrator, because that information could have prejudiced
the arbitrator against Wolleat in the arbitration. Williamson also caused
potential injury to Wolleat when they entered into the trade agreement without
written informed consent, as they had competing interests and there was a
material risk that Williamson would prioritize his own interests ahead of
Wolleat’s. Williamson’s failure to utilize proper fee agreements caused actual
Cite as In re Williamson, 31 DB Rptr 173 (2017)
178
or potential injury to the profession, as it reflects poorly on the profession and
undermines the public’s trust in lawyers.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Multiple offenses. Standards § 9.22(d).
2. Substantial experience in the practice of law. Standards § 9.22(i).
Williamson was admitted to practice in 1986.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of prior discipline. Williamson has no prior discipline in his 31
years of practice. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
3. Full and free disclosure and cooperative attitude toward proceedings.
Standards § 9.32(e).
4. Remorse. Williamson has expressed remorse for his actions in the
Wolleat matter and for not updating his fee agreements. Standards
§ 9.32(l).
16.
Under the ABA Standards, a suspension is appropriate when the lawyer is not
intentionally using the professional relationship to benefit himself or another, but nevertheless
knowingly breaches a client’s confidence such that the client suffers injury or potential injury.
Standards § 4.22. A suspension is also “generally appropriate when a lawyer knows of a
conflict of interest and does not fully disclose to a client the possible effect of that conflict, and
causes injury or potential injury to a client.” Standards § 4.32.
A reprimand is generally appropriate when a lawyer negligently engages in conduct
that is a violation of a duty owed as a professional, and causes injury or potential injury to a
client, the public, or the legal system. Standards § 7.3.
The presumptive sanction for Williamson’s misconduct would be a suspension;
however, because the mitigating factors outweigh those in aggravation, a downward departure
in the degree of presumptive discipline imposed is appropriate. Standards § 9.31. This is
particularly true here, where Williamson has practiced for over 30 years with no prior
discipline. As a result, a public reprimand is an appropriate sanction. Standards §§ 4.23, 4.33,
7.3.
17.
Oregon case law and prior disciplinary board decisions are in accord. In cases where
attorneys have failed to enter into proper fee agreements in similar circumstances, a reprimand
has been imposed. See, e.g., In re Coran, 24 DB Rptr 269 (2010) (attorney reprimanded for
Cite as In re Williamson, 31 DB Rptr 173 (2017)
179
using a written fee agreement that failed to provide that funds would not be deposited in trust
and depositing the funds into an account other than his lawyer trust account).
In prior Oregon cases, a public reprimand or a short period of suspension has been
imposed for a conflict of interest similar to that found here. See, e.g., In re Ambrose, 26 DB
Rptr 16 (2012) (attorney received public reprimand after he utilized various business entities
to enter into business transactions with a current client without sufficient disclosures
concerning possible conflicts between attorney and the client); In re Ghiorso, 27 DB Rptr 110
(2013) (attorney publicly reprimanded for participating as co-borrower with his client on one
loan and separately loaning money or advancing assistance to that same client on at least two
other occasions, and at all times failed to obtain informed consent in writing); In re Baer, 298
Or 29, 688 P2d 1324 (1984) (attorney received 60-day suspension where he represented both
the sellers of real property and his wife as buyer without sufficient disclosure to the sellers of
the nature of the conflict of interest, in violation of former DR 5-101(A) (now RPC 1.7(a)(2)),
former DR 5-104(A) (now RPC 1.8(a)), and former DR 5-105(A)-(C) (now RPC 1.7(b) and
RPC 1.9(a)). Williamson’s failure to abide by the requirements of RPC 1.8(a) in entering into
a business transaction with his client is more akin to the facts in Ambrose and Ghiorso than in
Baer.
The court has also imposed a public reprimand where lawyers have failed to protect
client secrets and engaged in a conflict of interest. In re Jayne, 295 Or 16, 663 P2d 405 (1983)
(attorney reprimanded for violating client confidences and secrets and for engaging in a
conflict of interest when she represented a husband in a dissolution proceeding after
representing wife in various matters; court surveyed previous decisions and identified the
majority of cases imposed a public reprimand for same rule violations).
Considering the Standards, prior Oregon cases, and Williamson’s significant miti-
gation, a public reprimand is an appropriate sanction for Williamson’s collective misconduct
in this matter.
18.
Consistent with the Standards and Oregon case law, the parties agree that Williamson
shall be publicly reprimanded for violation of RPC 1.5(c)(3) in Case No. 16-70, and RPC
1.5(c)(3), RPC 1.6(a) and RPC 1.8(a) in Case No. 16-71, the sanction to be effective
immediately.
19.
In addition, on or before July 15, 2017, Williamson shall pay to the Bar its reasonable
and necessary costs in the amount of $70.50 incurred for deposition appearance. Should
Williamson fail to pay $70.50 in full by July 15, 2017, the Bar may thereafter, without further
notice to him, obtain a judgment against Williamson for the unp
aid balance, plus interest
thereon at the legal rate to accrue from the date the judgment is signed until paid in full.
Cite as In re Williamson, 31 DB Rptr 173 (2017)
180
20.
Williamson acknowledges that he is subject to the Ethics School requirement set forth
in BR 6.4 and that a failure to complete the requirement timely under that rule may result in
his suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Williamson to attend or obtain continuing legal
education (CLE) credit hours.
21.
Williamson represents that, in addition to Oregon, he also is admitted to practice law
in the jurisdiction listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing this jurisdiction of the final
disposition of this proceeding. Other jurisdictions in which Williamson is admitted: Arizona.
22.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 26th day of June, 2017.
/s/ Robert C. Williamson
Robert C. Williamson
OSB No. 861043
APPROVED AS TO FORM AND CONTENT:
/s/ Jennifer J. Brown
Jennifer J. Brown
OSB No. 084797
EXECUTED this 28th day of June, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett
OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
181
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 15-147 & 16-40
) SC S064971
DANA C. HEINZELMAN, )
)
Accused. )
Counsel for the Bar: Angela W. Bennett
Counsel for the Accused: Kurt F. Hansen
Disciplinary Board: None
Disposition: Violation of RPC 1.1; RPC 1.3; RPC 1.4(a); RPC 1.15-
1(c); RPC 1.15-1(d); and RPC 1.16(a)(2). Stipulation
for Discipline. 5-year suspension.
Effective Date of Order: September 18, 2017
ORDER ACCEPTING STIPULATION FOR DISCIPLINE
Upon consideration by the court.
The court accepts the Stipulation for Discipline. Effective 60 days after the date of this
order, the accused is suspended from the practice of law in the State of Oregon for a period of
five years.
/s/ Rives Kistler 07/20/2017 9:18 AM
Presiding Justice, Supreme Court
STIPULATION FOR DISCIPLINE
Dana C. Heinzelman, attorney at law (“Heinzelman”), and the Oregon State Bar
(“Bar”) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
182
2.
Heinzelman was admitted by the Oregon Supreme Court to the practice of law in
Oregon on September 2, 2005, and has been a member of the Bar continuously since that time,
having her office and place of business in Marion County, Oregon, and later in Polk County,
Oregon.
3.
Heinzelman enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On July 15, 2016, a Formal Complaint was filed against Heinzelman pursuant to the
authorization of the SPRB, alleging violations of the Oregon Rules of Professional Conduct
(“RPC”): RPC 1.3 (neglect of a legal matter), RPC 1.4(a) [failure to keep a client reasonably
informed about the status of a matter]; RPC 1.15-1(c) [failure to deposit client funds into trust];
RPC 1.16(a)(2) [failure to withdraw from representation when required by physical or mental
condition]; and RPC 8.4(a)(3) [conduct involving dishonesty, fraud, deceit or
misrepresentation that reflecting adversely on fitness to practice law] in Case No. 15-147; and
RPC 1.1 [failure to provide competent representation]; RPC 1.3 [neglect of a legal matter];
RPC 1.4(a) [failure to keep a client reasonably informed about the status of a matter]; RPC
1.15-1(c) [failure to deposit client funds into trust]; RPC 1.15-1(d) [failure to account for and
return client property]; and RPC 8.4(a)(3) [conduct involving dishonesty, fraud, deceit or
misrepresentation that reflecting adversely on fitness to practice law] in Case No. 16-40. The
parties intend that this Stipulation for Discipline set forth all relevant facts, violations and the
agreed-upon sanction as a final disposition of the proceeding.
Case No. 15-147
Adams matter
Facts
5.
In March 2015, Andrea Adams (“Adams”) hired Heinzelman to file an uncontested
divorce petition on her behalf and paid her a $775 advance fee (the “Adams funds”).
6.
A written fee agreement signed by Adams recited that Heinzelman would hold the
Adams funds in her lawyer trust account. Although Adams and Heinzelman agreed orally that
$500 of the funds would be a flat fee for Heinzelman’s time, the fee agreement did not reflect
their understanding. Further, approximately $275 of the Adams funds were to be used to pay
the petition filing fee.
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
183
7.
Heinzelman did not deposit the Adams funds into trust. Instead, Heinzelman deposited
the Adams funds into her personal account and commingled them with her personal funds.
8.
In August 2015, Adams’s husband Jeffrey (“Jeffrey”) paid Heinzelman another $273
for the filing fee (the “Jeffrey funds”). Heinzelman did not deposit the Jeffrey funds into trust.
9.
Heinzelman did not file the Adams’s dissolution petition. From approximately March
through September of 2015, Adams attempted to contact Heinzelman on numerous occasions
to obtain a status update on the matter, and then to ask for an explanation for the delay.
Heinzelman did not substantively respond to Adams’s contact attempts, and in July 2015,
Heinzelman stopped responding to Adams altogether.
10.
In the meantime, Jeffrey retained his own attorney, who was also unable to make
contact with Heinzelman. In September 2015, when it became clear Heinzelman would not
respond to their contact attempts, Jeffrey’s attorney completed and filed the dissolution
paperwork. Adams then requested a refund of the Adams funds and Jeffrey requested a refund
of the Jeffrey funds.
11.
In October 2015, Heinzelman fully repaid Adams. Jeffrey was repaid in December
2015.
12.
Although Heinzelman asserted that depression impaired her ability to adequately
represent Adams, Heinzelman did not decline to undertake or thereafter withdraw from
representation of Adams.
Violations
13.
Heinzelman admits that, by failing to take action on Adams’s legal matter for several
months, failing to respond to Adams’s requests for information or provide updates in the
matter, and failing to withdraw when depression interfered with her representation of Adams,
she neglected her client’s legal matter, failed to adequately communicate with her client, and
failed to properly withdraw when her mental health condition impaired her ability to fulfill the
representation, in violation of RPC 1.3; RPC 1.4(a); and RPC 1.16(a)(2).
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
184
Heinzelman further admits that her failure to deposit the Adams’s funds and the Jeffrey
funds in trust and to segregate those funds from her own was a failure to protect and preserve
client funds in trust in violation of RPC 1.15-1(c).
Upon further factual inquiry, the parties agree that the charges of alleged violations of
RPC 8.4(a)(3), related to the allegations that Heinzelman knowingly converted client funds,
should be and, upon the approval of this Stipulation for Discipline, are dismissed.
Case No. 16-40
Jimenez matter
Facts
14.
In or around November 2014, Tammie Jimenez (“Jimenez”) hired Heinzelman to
represent her as the respondent in a dissolution petition filed pro se by Jimenez’s estranged
husband.
15.
Jimenez signed a written fee agreement, which provided that Jimenez would pay
Heinzelman a $1,000 retainer, and Jimenez paid Heinzelman $1,000 in cash (“Jimenez funds”).
16.
Heinzelman did not deposit the Jimenez funds into her lawyer trust account, and instead
commingled them with her own.
17.
Jimenez and her estranged husband, Enrique (“Enrique”), owned a mobile home. As
part of the asset division in the dissolution proceeding, Jimenez wanted to receive the full value
of the mobile home in lieu of any spousal support (“the offer”).
18.
In late December 2014, Heinzelman conveyed the offer to Enrique. At Enrique’s
request, Heinzelman agreed to give Enrique a few weeks to consider the offer. That wait
stretched from weeks to months. During that time, Heinzelman did not file an appearance for
Jimenez, did not take steps to monitor the status of the case, and did not provide information
or updates to Jimenez.
19.
In March 2015, Heinzelman arranged for a meeting with Enrique to review and sign a
stipulated judgment. Heinzelman cancelled the meeting at the last minute without notifying
her client. She did not reschedule the meeting, nor did she promptly respond to Jimenez’s
multiple messages asking whether the meeting had taken place.
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
185
20.
On April 1, 2015, the court issued a notice of intent to dismiss because Jimenez had
not filed an answer in the matter. Jimenez informed Heinzelman that she had received the
court’s notice of intent to dismiss the case, and Heinzelman agreed to take action. Thereafter,
Jimenez made multiple inquiries with Heinzelman, but no action was taken.
21.
On April 20, 2015, Enrique filed a motion for default and entry of judgment. A default
judgment was signed and entered on April 24, 2015. Later that day, Heinzelman filed paper
copies of a fee-deferral request, and an answer and counterclaim on Tammie’s behalf, which
had no effect because they had not been e-filed and because the default had already been
entered.
22.
Although Heinzelman promised Jimenez that she would file a motion to set aside the
default, she did not do so and did not follow up with Tammie to inform her of the develop-
ments.
23.
In May of 2015, Jimenez asked Heinzelman to fix the situation or provide a refund.
Heinzelman did neither. Heinzelman did not know, and failed to learn, the process for filing
the motion to set aside the default. Heinzelman also did not respond to Jimenez’s requests for
information about the matter, nor did she return the Jimenez funds despite Jimenez’s requests.
Violations
24.
Heinzelman admits that, by failing to learn how to e-file documents, missing filing
deadlines, and failing to determine how to move to set aside the default judgment against her
client, she failed to provide competent representation in violation of RPC 1.1.
Heinzelman also admits that her failures to take action on Jimenez’s legal matter and
communicate with or respond to Jimenez regarding the status of her legal matter, constituted
neglect of a client’s legal matter and failure to adequately communicate with a client in
violation of RPC 1.3 and RPC 1.4(a).
Heinzelman further admits that her failure to deposit and maintain the Jimenez funds
in trust, and her commingling of client funds with her own, was a failure to safeguard client
funds, and a failure to deposit and maintain client funds in trust until earned, in violation of
RPC 1.15-1(c).
When Heinzelman failed to provide an accounting or refund for Jimenez’s funds upon
request, she failed to account for or return client property in violation of RPC 1.15-1(d).
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
186
Upon further factual inquiry, the parties agree that the charges of alleged violations of
RPC 8.4(a)(3), related to the allegations that Heinzelman knowingly converted Jimenez’s
funds, should be and, upon the approval of this Stipulation for Discipline, are dismissed.
Sanction
25.
Heinzelman and the Bar agree that in fashioning an appropriate sanction in this case,
the Supreme Court should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Heinzelman’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. The most important ethical duties are those obligations that a
lawyer owes to clients. Standards at 5. In this case, Heinzelman violated her
duties to Adams and Jimenez to preserve and return their property, and to act
with reasonable diligence and promptness in representing them, including
maintaining adequate communication. Additionally, Heinzelman violated her
duty to Jimenez to competently represent her. Standards §§ 4.1, 4.4, 4.5.
Finally, Heinzelman violated her duty to Adams and the profession to properly
withdraw from representation when her self-avowed mental condition
materially impaired her ability to provide adequate representation to Adams.
Standards § 7.0.
b. Mental State. “Intent” is the conscious awareness of the nature or attendant
circumstances of the conduct with the intent to cause a particular result.
“Knowledge” is the conscious awareness of the nature or attendant cir-
cumstances of the conduct but without the conscious objective to accomplish a
particular result. Standards at 9.
Heinzelman acted knowingly and intentionally when she neglected her clients’
legal matters, failed to provide updates and information to clients, and avoided
her clients’ attempts to communicate with her. See In re Sousa, 323 Or 137,
144, 915 P2d 408 (1996) (“A failure to act can be characterized as intentional,
rather than attributed to mere neglect or procrastination, if the lawyer fails to
act over a significant period of time, despite the urging of the client and the
lawyer’s knowledge of the professional duty to act.”); see also In re Phelps,
306 Or 508, 513, 760 P2d 1331 (1988) (lawyer’s mental state can be inferred
from the facts). Heinzelman’s failure to withdraw once her self-avowed mental
condition began interfering with her representation of Adams was also
knowing, as Heinzelman was aware of - and told her client about - the impact
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
187
her mental health condition was having on her ability to attend to Adams’s legal
matter.
Heinzelman acted knowingly when she failed to deposit client funds into her
trust account, and commingled client funds with her own. Heinzelman acted
knowingly when she failed to provide a refund or an accounting when her client
requested one. Heinzelman’s conduct became intentional after she was
reminded of her obligation by both her client and the Bar, and still failed to
provide a refund.
c. Injury. For the purposes of determining an appropriate disciplinary sanction,
the trial panel may take into account both actual and potential injury. Standards
at 6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992).
Heinzelman’s mishandling of client funds caused actual and potential injury to
both Adams and Jimenez by depriving them of their funds for a substantial
period of time and by exposing them to the risk of losing those funds. See, e.g.,
In re Maroney, 324 Or 457, 927 P2d 90 (1996) (finding actual injury where the
acts of the accused caused substantial delay in the client’s use of his own funds).
Further, there was potential injury in that their entitlement to their funds was
unclear, given that the funds were not in trust, and Heinzelman did not segregate
them from her own.
Heinzelman’s failure to account for or return Jimenez’s funds constitutes actual,
ongoing, serious injury, as it has deprived Jimenez of the use of her funds for a
substantial period of time (two years).
Heinzelman’s neglect and failure to communicate in both the Adams and
Jimenez matters caused actual injury in the form of anxiety and frustration for
her clients. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000); In re Schaffner,
325 Or 421, 426–27, 939 P2d 39 (1997). Further, Heinzelman’s conduct
unnecessarily prolonged the resolution of both cases. In addition to her neglect,
Heinzelman’s incompetence in the Jimenez case allowed for a default judgment
against Jimenez, which adversely affected her in the court’s division of marital
property.
Finally, Heinzelman’s knowing disregard for and failure to comply with her
ethical obligations resulted in substantial actual and/or potential injury to her
clients, and to the profession.
d. Aggravating Circumstances. Aggravating circumstances include:
1. A selfish motive. Standards § 9.22(b). Most or all of Heinzelman’s mis-
conduct was selfishly motivated: her mishandling of client funds, failure
to respond to clients or attend to their legal matters, and failure to
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
188
withdraw or provide a refund all arose out of her attending to her own
interests, or those of her family’s, before her clients’.
2. A pattern of misconduct. Standards § 9.22(c). Heinzelman’s conduct
demonstrates a pattern of ignoring her duties to her clients when those
duties interfered with her own self-interest.
3. Multiple offenses. Standards § 9.22(d). In addition to multiple clients,
there are multiple charges associated with each victim.
4. Bad-faith obstruction of the disciplinary proceeding. Standards
§ 9.22(e). Heinzelman obstructed the investigation and prosecution of
this matter, thereby forcing the Bar to take uncommon measures to
obtain her responses to Bar inquiries or compliance with discovery
requests.
5. Vulnerability of victim. Standards § 9.22(h). Heinzelman was fully
aware that Jimenez was struggling with financial and health issues, with
little to no income, when Heinzelman took on her legal matter.
6. Substantial experience in the practice of law. Standards § 9.22(i).
Heinzelman has been licensed to practice for almost 20 years, the last
twelve of which have been in Oregon.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior record of discipline. Standards § 9.32(a).
Heinzelman has no prior discipline in Utah or Oregon.
2. Personal or emotional problems. Standards § 9.32(c). During the rele-
vant time period, Heinzelman was experiencing personal and emotional
difficulties that impacted her ability to fulfill her ethical duties. How-
ever, where Heinzelman acted intentionally, personal and emotional
problems will not provide mitigation. See, e.g., In re Morin, 319 Or 547,
565, 878 P2d 393 (1994).
26.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
or should know that she is dealing improperly with client property and causes injury or
potential injury to a client. Standards § 4.12. Similarly, a suspension is generally appropriate
when a lawyer knowingly fails to perform services for a client and causes injury or potential
injury to a client, or a lawyer engages in a pattern of neglect and causes injury or potential
injury to a client. Standards § 4.42.
Suspension is also generally appropriate when a lawyer engages in an area of practice
in which the lawyer knows he or she is not competent, and causes injury or potential injury as
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
189
a result. Standards § 4.52. Finally, suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a professional, and causes
injury or potential injury to a client, the public, or the legal system. Standards § 7.2.
The aggravating factors significantly outweigh those in mitigation, both in number and
in severity; therefore, a substantial upward departure from the presumptive sanction is
appropriate. Standards § 9.21.
27.
Oregon cases support the imposition of a substantial term of suspension for
Heinzelman’s mishandling of client funds. See, e.g., In re Skagen, 342 Or 183, 149 P3d 1171
(2006) (attorney was suspended for one year when it was determined that he never reconciled
his monthly trust-account statements or maintained a trust-account ledger to keep track of
client funds and was negligent in his trust-accounting practices); In re Harvey, 268 Or 390, 521
P2d 327 (1974) (respondent suspended for three years for commingling clients’ funds and failing
to turn over funds to clients or their designees).
The court typically imposes a presumptive sanction of at least 60 days for freestanding
neglect. See In re Schaffner, 323 Or 472, 918 P2d 803 (1996) (court held that a 60-day
suspension was appropriate for each of attorney’s neglect and his failure to cooperate with the
Bar); In re Worth, 337 Or 167, 92 P3d 721 (2004) (attorney who failed to move a client’s case
forward, despite several warnings from the court and a court directive to schedule arbitration
by a date certain, was suspended for 120 days, where his neglect resulted in the court’s granting
the opposing party’s motion to dismiss). Further, the court typically imposes some term of
suspension for lapses in communication. See, e.g., In re Koch, 345 Or 444, 198 P3d 910 (2008)
(attorney suspended for 120 days where she failed to advise her client that another lawyer
would prepare a qualified domestic relations order for the client, and thereafter failed to
communicate with the client and that second lawyer when they needed information and
assistance from attorney to complete the legal matter); In re Coyner, 342 Or 104, 149 P3d 1118
(2006) (three-month suspension, plus formal reinstatement, was appropriate for attorney
appointed to handle a client’s appeal and thereafter took no action and failed to disclose the
ultimate dismissal to the client); In re Knappenberger, 337 Or 15, 90 P3d 614 (2004) (90-day
suspension for attorney who appealed a spousal support determination, failed to keep the client
informed of the status of the appeal, did not respond to the client’s inquiries, and essentially
abandoned the client after oral argument).
The Court has expressed a dim view of failing to remit client funds and client property.
For those violations, the court has also generally imposed some period of suspension. See, e.g.,
In re Snyder, 348 Or 307, 232 P3d 952 (2010) (attorney suspended for 30 days where he failed
to return a personal-injury client’s file materials, including medical records, despite numerous
requests from the client); In re Fadeley, 342 Or 403, 153 P3d 682 (2007) (attorney suspended
for 30 days for refusal to refund any portion of flat fee owing to client despite that he did not
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
190
complete the contemplated representation); In re Coyner, 342 Or 104, 149 P3d 1118 (2006)
(attorney was suspended for three months where oral accounting—in response to a client’s
repeated requests for how his retainer was applied—was insufficient).
The court has required formal reinstatement where an attorney has failed to withdraw
when impaired by a physical or mental condition. See In re Lowe, 296 Or 328, 676 P2d 294
(1984) (court required reinstatement, after prior suspension, to be conditioned upon presenting
satisfactory evidence of being sufficiently free of emotional difficulties to practice law
competently where attorney failed to promptly deliver client’s files to substituted counsel, and
failed to withdraw from representation of client when suffering from mental and physical
condition rendering it unreasonably difficult to carry out employment effectively).
The Court has also imposed suspensions where an attorney failed to provide competent
representation. See, e.g., In re Obert, 352 Or 231, 282 P3d 825 (2012) (attorney suspended for
six months when, despite instructions from a trial judge in a civil case that the judge would
grant a motion for JNOV in favor of attorney’s client if one was filed and a caution about when
such a motion was due, attorney failed to timely file the motion and instead filed a notice of
appeal, which deprived the trial court of jurisdiction. The notice of appeal was defective, the
appeal ultimately was dismissed, and attorney failed to refile his posttrial motions timely. He
also filed a second, untimely notice of appeal, intending to argue that a criminal statute that
permitted the late filing of a notice of appeal should apply to his client’s civil case); In re Bettis,
342 Or 232, 149 P3d 1194 (2006) (attorney failed to provide competent services to a criminal-
defense client when he sought and obtained his client’s waiver of the right to a jury trial without
first reviewing any discovery or conducting any factual or legal investigation into the issues in the
case. Court suspended attorney for 30 days); In re Worth, 337 Or 167, 92 P3d 721 (2004) (attorney
was suspended for 120 days when he failed to move a client’s case forward despite several
warnings from the court and a court directive to schedule arbitration by a date certain, resulting
in the court’s granting the opposing party’s motion to dismiss).
Under the foregoing cases, and in light of the Standards and the significant aggravating
factors, Heinzelman’s collective misconduct warrants a lengthy suspension.
28.
Consistent with the Standards and Oregon case law, the parties agree that Heinzelman
shall be suspended for five (5) years for violations of RPC 1.1; RPC 1.3; RPC 1.4(a); RPC
1.15-1(c); RPC 1.15-1(d); and RPC 1.16(a)(2), the sanction to be effective July 15, 2017, or
60 days after this Stipulation for Discipline is approved by the Supreme Court, whichever is
later (“effective date”).
29.
In addition, on or before November 1, 2017, Heinzelman shall pay to the Bar its
reasonable and necessary costs in the amount of $1,803.32, incurred for process service and
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
191
deposition transcript costs. Should Heinzelman fail to pay $1,803.32 in full by November 1,
2017, the Bar may thereafter, without further notice to her, obtain a judgment against
Heinzelman for the unpaid balance, plus interest thereon at the legal rate to accrue from the
date the judgment is signed until paid in full.
30.
On or before September 1, 2017, Heinzelman will make restitution to Jimenez for the
$1,000 Jimenez paid to Heinzelman, and for which Jimenez received no benefit. Heinzelman
will contemporaneously send confirmation of Jimenez’s repayment to Disciplinary Counsel’s
Office.
31.
Heinzelman acknowledges that she has certain duties and responsibilities under the
Rules of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid
foreseeable prejudice to her clients during the term of her suspension. In this regard,
Heinzelman has arranged for Thomas Daniel O’Neil, Bar No. 900983, an active member of
the Bar, to either take possession of or have ongoing access to Heinzelman’s client files and
serve as the contact person for clients in need of the files during the term of her suspension.
Heinzelman represents that Thomas Daniel O’Neil has agreed to accept this responsibility.
32.
Heinzelman acknowledges that reinstatement is not automatic on expiration of the
period of suspension. She is required to comply with the applicable provisions of Title 8 of the
Bar Rules of Procedure. Heinzelman also acknowledges that she cannot hold herself out as an
active member of the Bar or provide legal services or advice until she is notified that her license
to practice has been reinstated.
33.
Further, Heinzelman agrees that, if she chooses to apply for reinstatement when
eligible, she will first undergo a comprehensive psychological evaluation by a licensed pro-
fessional acceptable to Disciplinary Counsel’s Office, and will make the full record and
findings of the evaluation available to Disciplinary Counsel’s Office. Further, prior to
reinstatement, Heinzelman will comply with any and all treatment recommendations as set
forth in the psychological evaluation report.
34.
Heinzelman acknowledges that she is subject to the Ethics School requirement set forth
in BR 6.4 and that a failure to complete the requirement timely under that rule may result in
her suspension or the denial of her reinstatement. This requirement is in addition to any other
provision of this agreement that requires Heinzelman to attend or obtain continuing legal
education (CLE) credit hours.
Cite as In re Heinzelman, 31 DB Rptr 181 (2017)
192
35.
Heinzelman represents that, in addition to Oregon, she also is admitted to practice law
in the jurisdictions listed in this paragraph, whether her current status is active, inactive, or
suspended, and she acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Heinzelman is admitted: Utah.
36.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Supreme Court for consideration pursuant to the terms of BR 3.6.
EXECUTED this 22nd day of May, 2017.
/s/ Dana C. Heinzelman
Dana C. Heinzelman
OSB No. 051695
APPROVED AS TO FORM AND CONTENT:
/s/ Kurt F. Hansen
Kurt F. Hansen
Counsel for Dana C. Heinzelman
OSB No. 842400
EXECUTED this 22nd day of May, 2017.
OREGON STATE BAR
By: /s/ Angela W. Bennett
Angela W. Bennett
OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Powell, 31 DB Rptr 193 (2017)
193
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-174
)
GREGORY L. POWELL, )
)
Accused. )
Counsel for the Bar: Theodore W. Reuter
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a),
RPC 1.15-1(c), and RPC 1.15-1(d). Stipulation for
Discipline. 90-day suspension.
Effective Date of Order: August 30, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Gregory L. Powell and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Gregory L. Powell is suspended for ninety days, effective thirty days after approval of this
stipulation, or as otherwise directed by the Disciplinary Board for violation of RPC 1.5(a),
RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d).
DATED this 31st day of July, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Powell, 31 DB Rptr 193 (2017)
194
STIPULATION FOR DISCIPLINE
Gregory L. Powell, attorney at law (“Powell”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Powell was admitted by the Oregon Supreme Court to the practice of law in Oregon on
December 18, 1990, and has been a member of the Bar continuously since that time, having
his office and place of business in Multnomah County, Oregon.
3.
Powell enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On December 3, 2016, the State Professional Responsibility Board (“SPRB”)
authorized formal disciplinary proceedings against Powell for alleged violations of RPC 1.5(a),
RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d) of the Oregon Rules of
Professional Conduct. The parties intend that this stipulation set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
Steve Baird (“Baird”) is the CEO of S-Ray, Inc. (“S-Ray”). In September 2015, Baird
hired Powell to assist him in changing S-Ray from an Oregon corporation to a Delaware
corporation. Baird made an initial payment to Powell of $6,500, representing an advance
payment for legal work yet to be performed by Powell. Powell took possession of the funds
and did not place them in a trust account.
6.
Powell drafted an engagement letter that did not include the language required by RPC
1.5(c)(3) but did specify that the $6,500 represented payment for 20 hours of legal work.
Although Powell completed less than 15 hours of work on matters for S-Ray, he retained the
entire amount of the fee paid.
Cite as In re Powell, 31 DB Rptr 193 (2017)
195
Violations
7.
Powell admits that, by failing to deposit the $6,500 in a trust account prior to per-
forming the legal work he was hired to do, in the absence of a written fee agreement with the
required language, and by failing to return the unearned portion of the client funds received,
he violated RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d).
Sanction
8.
Powell and the Bar agree that, in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Powell’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Powell violated his duty of candor to his client by failing to
make adequate disclosures in his fee agreement. Standards § 4.6. He violated
his duty to preserve client property by collecting an excessive and unearned fee,
failing to return the unearned portion of the fee, and failing to account for that
fee. Standards § 4.1.
b. Mental State. Powell knew that he had collected a fee and that he had not
completed the amount of work that the fee was supposed to represent. He was
negligent in determining what his obligations were with respect to structuring
the fee agreement and refunding money received when work was unfinished.
c. Injury. Powell’s client was injured because he paid more than he had agreed to
pay for services which were not completed.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Multiple Offenses. Standards § 9.22(d).
2. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. No Prior Discipline. Standards § 9.32(a).
9.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12. The parties agree that Powell should have known of his
obligations with respect his treatment of the funds received from his client and that his failure
Cite as In re Powell, 31 DB Rptr 193 (2017)
196
to maintain the advance payment of fees in trust until earned potentially injured his client by
not maintaining money in trust available for any refund that might be owed in the event the
work was not completed. The parties agree that a suspension is an appropriate remedy in this
case.
10.
Oregon cases support the imposition of a suspension for Powell’s misconduct. See, e.g.,
In re Obert, 352 Or 231, 282 P3d 825 (2012) (6-month suspension for an excessive fee and
failure to refund any portion of the fee after taking a flat fee and not taking any substantial step
toward completing the work); In re Fadeley, 342 Or 403, 153 P3d 682 (2007) (30-day
suspension for an excessive fee where the lawyer failed to perform much work before being
terminated by the client but asserted that a $10,000 retainer was nonrefundable and earned
upon receipt); and In re Balocca, 342 Or 279, 151 P3d 154 (2007) (90-day suspension for an
excessive fee where attorney agreed to perform specific work for a flat fee, failed to complete
the work, and sought to keep entire fee by claiming it was owed based upon calculating the fee
based upon an hourly rate). While stipulations do not have a precedential value, they illustrate
what the parties have agreed is an appropriate outcome. See, e.g., In re Eckrem, 28 DB Rptr
77 (2014) (attorney stipulated to a 90-day suspension, all but 30 days stayed, pending
successful completion of a 2-year probation for failing to promptly pay a third party upon
receipt of funds to do so in violation of RPC 1.15-1(d), using a flat fee agreement that did not
contain the language required by RPC 1.5(c)(3), and failing to refund the unearned portion of
the flat fee in violation of RPC 1.5(a) and RPC 1.16(d)); and In re Coran, 27 DB Rptr 170
(2013) (attorney stipulated to a 30-day suspension, all stayed, pending successful completion
of a 24-month probation based upon a failure to deliver a client file in violation of RPC 1.15-
1(d), using a fee agreement without the required language in a flat-fee arrangement in violation
of RPC 1.5(c)(3), and accepting a flat fee without an appropriate fee agreement and failing to
place the fee in a trust account in violation of RPC 1.5(c)(3), RPC 1.15-1(a) and RPC 1.15-
1(c)).
11.
Consistent with the Standards and Oregon case law, the parties agree that Powell shall
be suspended for ninety days for violations of RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC
1.15-1(c), and RPC 1.15-1(d). The sanction shall be effective thirty days after approval of this
stipulation, or as otherwise directed by the Disciplinary Board.
12.
Powell acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. Powell represents that, at this time,
he has no active client matters and no client files that are under his control.
Cite as In re Powell, 31 DB Rptr 193 (2017)
197
13.
Powell acknowledges that reinstatement is not automatic on expiration of the period of
suspension. He is required to comply with the applicable provisions of Title 8 of the Bar Rules
of Procedure. Powell also acknowledges that he cannot hold himself out as an active member
of the Bar or provide legal services or advice until he is notified that his license to practice has
been reinstated.
14.
Powell acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Powell to attend or obtain continuing legal education
(CLE) credit hours.
15.
Powell represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Powell is admitted: None.
16.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 26th day of July, 2017.
/s/ Gregory L. Powell
Gregory L. Powell
OSB No. 904830
EXECUTED this 28th day of July, 2017.
OREGON STATE BAR
By: /s/ Theodore W. Reuter
Theodore W. Reuter
OSB No. 092818
Assistant Disciplinary Counsel
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
198
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 17-10
)
JAMES M. MONSEBROTEN, )
)
Accused. )
Counsel for the Bar: Theodore W. Reuter
Counsel for the Accused: Calon Nye Russell
Disciplinary Board: None.
Disposition: Violation of RPC 1.4(a); RPC 1.4(b); RPC 1.5(c)(3);
RPC 1.15-1(a), and RPC 1.15-1(c). Stipulation for
Discipline. Public Reprimand.
Effective Date of Order: July 31, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by James
M. Monsebroten and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
James M. Monsebroten is publicly reprimanded for violation of RPC 1.4(a); RPC 1.4(b); RPC
1.5(c)(3); RPC 1.15-1(a) and RPC 1.15-1(c).
DATED this 31st day of July, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ John E. Davis
John E. Davis, Region 3
Disciplinary Board Chairperson
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
199
STIPULATION FOR DISCIPLINE
James M. Monsebroten, attorney at law (“Monsebroten”), and the Oregon State Bar
(“Bar”) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Monsebroten was admitted by the Oregon Supreme Court to the practice of law in
Oregon on July 20, 1998, and has been a member of the Bar continuously since that time,
having his office and place of business in Coos County, Oregon.
3.
Monsebroten enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On February 25, 2017, the State Professional Responsibility Board (“SPRB”) author-
ized formal disciplinary proceedings against Monsebroten for alleged violations of Oregon
Rules of Professional Conduct (“RPC”) 1.4(a) [ duty to keep client reasonably informed]; RPC
1.4(b) [duty explain matters sufficiently to permit the client to make informed decisions]; RPC
1.5(c)(3) [requirement of a written fee agreement for earned-upon-receipt fees]; RPC 1.15-1(a)
[duty to hold client’s property separate from the lawyer’s]and RPC 1.15-1(c) [duty to deposit
unearned fees in trust]. The parties intend that this stipulation set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
On or about July 28, 2014, Monsebroten entered into a $1,200 “Flat-Fee Agreement”
with the Hancocks. The agreement specified that the fee “is earned when paid, is non-
refundable, and is not deposited in the lawyer’s trust account[,]” that “[t]he Client may
terminate this agreement at any time[,]” and that “if the Client discharges the attorney, then the
attorney is entitled to fees at the attorney’s standard hourly rate on a quantum meruit basis.”
6.
Upon receiving the $1,200 from the Hancocks, in accordance with the terms of the Flat-
Fee Agreement, Monsebroten deposited the money into his business account rather than his
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
200
trust account based upon his mistaken understanding that he had a valid earned-on-receipt fee
agreement and was, therefore, required to deposit the money into his business account.
7.
Monsebroten represented the Hancocks in connection with a protective order hearing.
Both before the hearing and during a break in the hearing, Monsebroten engaged in settlement
negotiations with opposing counsel based on input from the Hancocks, who were at the
hearing. During the break, the parties reached agreement on the settlement terms. The material
terms of the settlement were put on the record in front of the Judge. The judge asked the
Hancocks if the settlement as stated on the record was the agreement. The Hancocks agreed on
the record. The judge instructed opposing counsel to draft the resulting order. Opposing
counsel drafted the order and submitted it to Monsebroten. The order contained the key terms
discussed on the record, plus additional details. Monsebroten understood the additional details
to be within the scope of his express and implied settlement authority based on his prior
communications with the Hancocks, and he, therefore, agreed to the form of the order without
reviewing the order with his clients. The Hancocks thereby did not have an opportunity to
object to the form of the Order before it was entered. After the court signed the order,
Monsebroten forwarded it to the Hancocks. The Hancocks then indicated that they had not
agreed to certain terms in the order.
Violations
8.
Monsebroten admits that, by failing to consult with his clients, the Hancocks, before
assenting to the entry of the stipulated order, he violated RPC 1.4(a) and RPC 1.4(b).
Monsebroten further admits that, by failing to include the language required by RPC 1.5(c)(3)
in his written agreement before accepting a flat fee from his client, he violated that rule.
Because Monsebroten’s Flat-Fee Agreement did not comply with RPC 1.5(c)(3), the $1,200
should have been deposited in trust. Monsebroten’s failure to do so violated RPC 1.15-1(a)
and RPC 1.15-1(c).
Sanction
9.
Monsebroten and the Bar agree that in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Monsebroten’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. After the clients agreed to the oral statement of the material
terms of the stipulated order on the record in front of a judge, Monsebroten’s
failure to communicate with his clients before agreeing to the written form of
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
201
the stipulated order was a violation of his duty to diligently represent his clients,
governed by Standards § 4.4. Monsebroten’s failure to include the required
language in his fee agreement that the client may be entitled to a refund, and his
subsequent collection of that fee, violated his duty to hold client property
separate from the lawyer’s own property, because an earned-on-receipt fee
agreement that does not strictly comply with RPC 1.5(c)(3) is invalid and any
funds received from the client must be deposited in trust until earned. Standards
§ 4.1 and his duty of candor Standards § 4.6.
b. Mental State. Monsebroten was negligent with respect to these duties.
c. Injury. The primary injury that resulted from Monsebroten’s conduct was that
his clients lost the opportunity to review the order proposed by the opposing
counsel and negotiate more favorable wording.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Multiple offenses. Standards § 9.22(d).
2. Substantial experience in the practice of law. Standards § 9.22(i).
Monsebroten has been practicing in Oregon continuously since 1998.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of Prior Disciplinary Record. Standards § 9.32(a).
2. Full and free disclosure to disciplinary authority and a cooperative
attitude towards the proceedings. Standards § 9.32(e).
10.
Under the ABA Standards, a reprimand is generally appropriate when a lawyer is
negligent and does not act with reasonable diligence in representing a client, and causes injury
or potential injury to a client. Standards § 4.43. Here, the parties agree that aggravating and
mitigating factors are roughly in equipoise, making a reprimand an appropriate sanction.
11.
Where communication violations are paired with other violations and relate to the
outcome of the case, the Disciplinary Board has approved stipulations to a public reprimand.
See In re Rose, 20 DB Rptr 237 (2006) (stipulation to reprimand where attorney accepted
representation of a client on appeal, collected a fee, and then did not respond to client requests
for information and did not file a brief for the appeal, violating RPC 1.3 [neglect of a legal
matter], RPC 1.4 [failure to communicate], RPC 1.5(a) [collecting an excessive fee], RPC
1.16(d) [failure to comply with obligations on termination of employment]); In re Dames, 23
DB Rptr 105 (2009) (stipulation to reprimand where attorney agreed to take on medical
malpractice suit on behalf of client, indicated an intent to withdraw to his client, and then
subsequently conceded a summary judgment motion disposing of his client’s case without
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
202
consulting his client in violation of RPC 1.3 [neglect of a legal matter], RPC 1.4(a) and (b)
[failure to communicate], and RPC 1.2(a) [abiding by client’s decision regarding whether to
settle a case]); In re Kleen, 27 DB Rptr 213 (2013) (Attorney stipulated to a reprimand where
attorney agreed to represent a client in a medical malpractice case, did not hire an expert, did
not respond to requests for information from client, did not communicate to client that he
believed client’s case was not viable until client complained to the Client Assistance Office
and failed to timely return funds to client or inform client of a suit served on him by client’s
creditors in violation of RPC 1.3, RPC 1.4(a) and (b), and RPC 1.16(d)).
12.
Consistent with the Standards and prior orders approving stipulations, the parties agree
that Monsebroten shall be publicly reprimanded for violation of RPC 1.4(a); RPC 1.4(b); RPC
1.5(c)(3); RPC 1.15-1(a) and RPC 1.15-1(c), the sanction to be effective upon approval by the
Disciplinary Board.
13.
Monsebroten acknowledges that he is subject to the “Ethics School” requirement set
forth in BR 6.4.
14.
Monsebroten represents that, in addition to Oregon, he also is admitted to practice law
in the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Monsebroten is admitted:
Federal District Court of Oregon
Ninth Circuit Court of Appeals
Washington
Texas
England and Wales
15.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 21st day of July, 2017.
/s/ James M. Monsebroten
James M. Monsebroten
OSB No. 981523
Cite as In re Monsebroten, 31 DB Rptr 198 (2017)
203
APPROVED AS TO FORM AND CONTENT:
EXECUTED this 24th day of July, 2017.
/s/ Calon Nye Russell
Calon Nye Russell
OSB No. 094910
ATTORNEY FOR RESPONDENT
EXECUTED this 27th day of July, 2017.
OREGON STATE BAR
By: /s/ Theodore W. Reuter
Theodore W. Reuter, OSB No. 084529
Assistant Disciplinary Counsel
Cite as In re Kirchoff, 31 DB Rptr 204 (2017)
204
Cite full opinion as 361 Or 712 (2017)
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of )
)
JAMES R. KIRCHOFF, )
)
Accused. )
(OSB 15-05; SC S064308)
En Banc
On review from a decision of a trial panel of the Disciplinary Board.
Argued and submitted May 11, 2017.
C. Robert Steringer, Harrang Long Gary Rudnick PC, Portland, argued the cause and
filed the briefs for the Accused.
Susan R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and filed
the brief for the Oregon State Bar.
PER CURIAM
In this lawyer disciplinary proceeding, the Oregon State Bar charged James R. Kirchoff
(the accused) with multiple violations of the Oregon Rules of Professional Conduct (RPC),
based on his submission of false evidence to a tribunal. A trial panel of the Disciplinary Board
conducted a hearing, found that the accused had violated those rules, and determined that the
appropriate sanction was suspension from the practice of law for a period of two years. The
accused seeks review of the trial panel’s finding that he committed the alleged violations. We
review the trial panel’s decision de novo. ORS 9.536(2); Bar Rule of Procedure (BR) 10.6. The
Bar has the burden of establishing misconduct by clear and convincing evidence. BR 5.2. Clear
and convincing evidence is evidence establishing that “the truth of the facts asserted is highly
probable.” In re Ellis/Rosenbaum, 356 Or 691, 693, 344 P3d 425 (2015). For the reasons that
follow, we agree with the trial panel that the Bar presented evidence establishing the alleged
violations under that standard. The accused does not challenge the sanction imposed by the
trial panel; accordingly, we suspend the accused from the practice of law for a period of two
years.
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
205
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-123
)
JAMES C. HILBORN, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 3.1 and RPC 4.4(a). Stipulation for
Discipline. 90-day suspension.
Effective Date of Order: August 24, 2017
ORDER APROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by James
C. Hilborn and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
James C. Hilborn is suspended for 90 days, effective ten (10) days after the date this Order is
signed, for violations of RPC 3.1 and RPC 4.4(a).
DATED this 14th day of August, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Kathy Proctor
Kathy Proctor, Region 4
Disciplinary Board Chairperson
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
206
STIPULATION FOR DISCIPLINE
James C. Hilborn, attorney at law (“Hilborn”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Hilborn was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 26, 1977, and has been a member of the Bar continuously since that time. At a
majority of relevant times herein, Hilborn had his office and place of business in Washington
County, State of Oregon. Beginning in or around December 2014, Hilborn moved from Oregon
to Louisiana, and currently resides in Stone County, State of Arkansas.
Hilborn enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
3.
On December 19, 2016, a Formal Complaint was filed against Hilborn pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
RPC 3.1 [frivolous claim or position]; and RPC 4.4(a) [action solely to delay, harass or burden
another] of the Oregon Rules of Professional Conduct. The parties intend that this Stipulation
for Discipline set forth all relevant facts, violations and the agreed-upon sanction as a final
disposition of the proceeding.
Facts
4.
Prior to March 2013, Hilborn represented Robert Johnson in estate planning matters,
and, in that capacity, prepared a revocable living trust and pour-over will. Rhonda Johnson was
the sole beneficiary of both the trust and the will, identified as the co-personal representative
in the will and, until March 2013, was named as successor trustee of the trust, to serve upon
Robert Johnson’s death.
5.
In April 2013, at Robert Johnson’s request, Hilborn prepared an amended trust docu-
ment naming Hilborn as the successor trustee instead of Rhonda Johnson.
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
207
6.
In September 2014, Robert Johnson passed away. After Robert Johnson’s death,
Rhonda Johnson learned that Hilborn had been named in the amended trust document as
successor trustee. Rhonda Johnson contacted Hilborn and asked him to decline to serve as
successor trustee. Hilborn refused.
7.
When Hilborn did not accede to her request, Rhonda Johnson hired attorney Matthew
Whitman (“Whitman”) to assist in having Hilborn removed.
8.
On October 22, 2014, Whitman wrote to Hilborn, reiterating Rhonda Johnson’s request
and enclosing a declination for Hilborn’s signature. Whitman’s letter also pointed out then-
recent amendments to ORS 130.625 which permitted a trust beneficiary to remove a trustee by
a simple request. Whitman notified Hilborn that, if it were necessary to file suit to remove
Hilborn as trustee, his client would seek attorney’s fees pursuant to ORS 130.815.
9.
On November 4, 2014, Hilborn responded to Whitman via email, stating in part: “I may
willing [sic] to resign upon 2 conditions. I want a mutual release from Rhonda Johnson in her
capacity as a beneficiary and successor trustee. I also want a reasonable trustee fee in the
amount of $10,000, which I believe is an approximation of what I would have made had no
one interfered with my office.”
10.
At the time that Hilborn sent his November 4, 2014 email to Whitman, he had not
performed substantive work on behalf of the trust or estate in his capacity as trustee, and the
only work that was likely to be required of him as trustee was the execution of a deed conveying
the residence (and principal asset) to Rhonda Johnson.
11.
In response to Whitman’s subsequent request for documentation of any significant
work that had been done for the trust prior to Rhonda Johnson’s request that he execute the
declination, Hilborn synopsized the factors listed in RPC 1.5(b) used in determining whether
an attorney’s fee is reasonable and inquired whether Whitman was going to make a counter
offer.
12.
Hilborn thereafter left a phone message for Whitman, acknowledging that he had no
basis to claim trustee fees but instead asserting that he was now seeking payment for the 20-
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
208
25 hours he had spent preparing the amended trust document for which he had previously
waived his fee. Accordingly, he refused to sign and return the declination.
13.
After Hilborn failed to return the signed declination, Whitman was required to file suit
on behalf of Rhonda Johnson to have Hilborn removed as successor trustee. Following service,
Hilborn did not make an appearance, and a judgment removing him was obtained.
Violations
14.
Hilborn admits that, by seeking payment for legal services he had not and would not
perform as a condition of delivering a declination he was statutorily required to grant, he
asserted a frivolous position and engaged in conduct that solely harassed and burdened Rhonda
Johnson, in violation of RPC 3.1 and RPC 4.4(a).
Sanction
15.
Hilborn and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Hilborn’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Under the Standards, both rules at issue fall within the gambit
of duties to the legal system. Hilborn violated his duties to the legal system to
make meritorious claims and avoid abuse to the legal process. Standards § 6.2.
b. Mental State. Mental state is measured against a continuum ranging from
negligent to intentional. Negligence is the failure of a lawyer to heed a
substantial risk that circumstances exist or that a result will follow, which
failure is a deviation from the standard of care that a reasonable lawyer would
exercise in the situation. Knowledge is the conscious awareness of the nature
or attendant circumstances of the conduct but without the conscious objective
or purpose to accomplish a particular result. Intent is the conscious objective or
purpose to accomplish a particular result. Standards at 9.
Hilborn acted intentionally in making a demand for money, but perhaps without
an intention that Rhonda Johnston would be required to file suit to secure his
removal as trustee. It was Hilborn’s stated intention to prompt a negotiated fee.
He was surprised that Whitman would not engage in that process.
However, at the same time, despite being asked, Hilborn declined to provide
any legal basis upon which he based his belief in an entitlement to a fee for
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
209
work he had not yet and would not perform because of his discharge. Moreover,
Hilborn’s conduct in the face of Whitman’s initial letter (informing Hilborn of
Rhonda Johnston’s statutory ability to discharge him) was at least knowing; as
a trustee bound by the provisions of the Trust Code, he was acting in con-
travention of the statute requiring him to abide by a trust beneficiary’s decision
to discharge him.
And, to the extent that Hilborn may have believed that Rhonda Johnston was
not the sole beneficiary before he acceded to her request to step down, it was
his responsibility as the trustee to know the status of the beneficiaries, and to
communicate that as a basis for declining Rhonda Johnston’s demand that he
step down. In addition, whether accurate or not, her status had no effect on his
knowing request for future or previously waived fees.
c. Injury. Injury can either be actual or potential under the Standards. See In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). “‘Potential injury’ is the harm
to a client, the public, the legal system or the profession that is reasonably
foreseeable at the time of the lawyer’s misconduct, and which, but for some
intervening factor or event, would probably have resulted from the lawyer’s
misconduct.” Standards at 9. Hilborn’s unwillingness to sign and deliver the
declination document to Whitman necessitated his filing of a suit to have him
removed as trustee, costing Rhonda Johnston both money and time. That was
actual injury.
d. Aggravating Circumstances. Aggravating circumstances include:
1. A prior history of discipline. Standards § 9.22(a). In assessing the
impact of prior sanctions, the factors articulated in In re Jones, 326 Or
195, 200, 951 P2d 149 (1997), must be considered. These include: (1)
the relative seriousness of the prior offense and resulting sanction; (2)
the similarity of the prior offense to the offense in the case at bar; (3)
the number of prior offenses; (4) the relative recency of the prior
offense; and (5) the timing of the current offense in relation to the prior
offense and resulting sanction, specifically, whether the accused lawyer
had been sanctioned for the prior offense before engaging in the offense
in the case at bar. These considerations can serve to heighten or diminish
the significance of earlier misconduct.
Hilborn has two prior instances of relevant discipline. In 2008, he was
suspended for 9 months, with all but 60 days stayed, and placed on
probation for 2 years, based on two complaints, both of which involved
neglect [RPC 1.3] and communication issues [RPC 1.4] and one of
which included a competence violation [RPC 1.1]. He also failed to
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
210
respond to the Bar [RPC 8.1(a)(2)] and engaged in conduct involving
dishonesty [RPC 8.4(a)(3)]. In re Hilborn, 22 DB Rptr 102 (2008).
In 2010, Hilborn was suspended for 30 days for violations of RPC 1.4(a)
and (b) [communication with client]; RPC 1.7(a)(1) and (2) [personal
and multiple-client conflicts]; and RPC 8.4(a)(4) [conduct prejudicial to
the administration of justice]. In re Hilborn, 24 DB Rptr 233 (2010).
In consideration of the Jones factors, 326 Or at 200, the conduct at issue
in this matter occurred a little more than four years after Hilborn was
last sanctioned, and the rules at issue here were not replicated in the
earlier matters. See Standards § 9.22(a).
2. A selfish motive. Hilborn was motivated to extract a fee for work as a
trustee that he would not perform. Standards § 9.22(b).
3. Substantial experience in the practice of law. Hilborn was admitted to
practice in Oregon in 1977. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Delay in disciplinary proceedings. Standards § 9.32(j).
2. Remorse. Standards § 9.32(l).
16.
Under the ABA Standards, a suspension is generally appropriate when a lawyer
knowingly causes abuse to the legal process, and there is injury or potential injury to a client
or party, or interference or potential interference with a legal proceeding. Standards § 6.22.
The application of the aggravating and mitigating factors support that a suspension is
appropriate.
17.
Oregon case law also supports the imposition of some period of suspension. See, e.g.,
In re Anderson, 27 DB Rptr 243 (2013) (attorney suspended for 90 days where she pursued
multiple contempt and civil proceedings that lacked any good-faith factual or legal basis. These
filings were motivated by and the result of animosity toward the client’s former wife and sister-
in-law, and were “reckless, willful, malicious and in bad faith.”); In re Obert, 352 Or 231, 282
P3d 825 (2012) (attorney with prior discipline suspended for 6 months where, despite
instructions from a trial judge in a civil case that the judge would grant a motion for JNOV in
favor of attorney’s client if one was filed and a caution about when such a motion was due,
attorney failed to timely file the motion and instead filed a notice of appeal which deprived the
trial court of jurisdiction. The notice of appeal was defective, the appeal ultimately was
dismissed, and attorney failed to refile his post-trial motions timely. He also filed a second,
untimely notice of appeal, intending to argue that a criminal statute that permitted the late filing
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
211
of a notice of appeal should apply to his client’s civil case. This argument had no basis in law
or fact and therefore was the assertion of a frivolous position); In re Smith, 348 Or 535, 236
P3d 137 (2010) (attorney who represented a client who had disputes with her employer, a
nonprofit corporation that operated a medical marijuana clinic, was suspended for 90 days
where he advised his client that, because the nonprofit was administratively dissolved, the
client had a right to enter the clinic premises and attempt to take control of the operations, a
position that attorney knew was frivolous); In re Andersen, 18 DB Rptr 172 (2004) (attorney
suspended for 4 months when, without any legal right to do so, he threatened to withhold from
an opposing party bank records and rental files belonging to them unless they settled the case
on terms attorney proposed); In re Hopp, 291 Or 697, 702, 634 P2d 238 (1981) (attorney was
suspended for 60 days after he, out of animosity for a company’s counsel, caused his secretary
to register for the company’s expired assumed business name and refused to relinquish the
name until paid $100. Hopp involved only a single incident, the attorney acted out of
“inexperience and overzealousness,” and he acknowledged that he used bad judgment.); In re
Paulson, 341 Or 13, 136 P3d 1087 (2006), cert den, 549 US 1116 (2007) (attorney with
significant prior discipline suspended for 6 months where attorney filed a pleading in a
bankruptcy proceeding purportedly on behalf of the debtors when he was not attorney of record
and knew that the debtors, who were his clients in a related state court matter, objected to the
filing. In addition, the attorney’s cumulative actions in ignoring and violating procedural rules
resulted in the litigation becoming more complicated, protracted, and expensive, which served
to prejudice the administration of justice.); In re Glass, 308 Or 297, 779 P2d 612 (1989), adh’d
to on recons, 309 Or 218, 784 P2d 1094 (1990) (attorney, who was in litigation with an
unregistered contractor to whom he owed a debt, was suspended for 91 days when he registered
himself under the contractor’s assumed name in order to prevent the contractor’s collection of
the debt, and then failed to cooperate with the Bar).
18.
Consistent with the Standards and Oregon case law, the parties agree that Hilborn shall
be suspended for 90 days for his violations of RPC 3.1 and RPC 4.4(a). The sanction will be
effective ten (10) days following approval by the Disciplinary Board.
19.
Hilborn acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Hilborn has not lived
in the State of Oregon since December 2014, and has no active clients in Oregon.
20.
Hilborn acknowledges that reinstatement is not automatic on expiration of the period
of suspension. He is required to comply with the applicable provisions of Title 8 of the Bar
Rules of Procedure. Hilborn also acknowledges that he cannot hold himself out as an active
Cite as In re Hilborn, 31 DB Rptr 205 (2017)
212
member of the Bar or provide legal services or advice until he is notified that his license to
practice has been reinstated.
21.
Hilborn acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Hilborn to attend or obtain continuing legal education
(CLE) credit hours.
22.
Hilborn represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Hilborn is admitted: none.
23.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 19th day of July, 2017.
/s/ James C. Hilborn
James C. Hilborn
OSB No. 772205
EXECUTED this 31st day of July, 2017.
OREGON STATE BAR
By: /s/ Amber Bevacqua-Lynott
Amber Bevacqua-Lynott
OSB No. 990280
Chief Assistant Disciplinary Counsel
Cite as In re McConnell, 31 DB Rptr 213 (2017)
213
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 16-154
)
SHERYL S. MCCONNELL, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: David J. Elkanich
Disciplinary Board: None.
Disposition: Violation of RPC 3.1. Stipulation for Discipline. 90-day
suspension.
Effective Date of Order: August 17, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Sheryl S. McConnell and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Sheryl McConnell is suspended for 90 days, effective August 5, 2017, or three (3) days after
approval by the Disciplinary Board, whichever is later, for violation of RPC 3.1.
DATED this 14th day of August, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Kathy Proctor
Kathy Proctor, Region 4
Disciplinary Board Chairperson
Cite as In re McConnell, 31 DB Rptr 213 (2017)
214
STIPULATION FOR DISCIPLINE
Sheryl McConnell, attorney at law (“McConnell”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
McConnell was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 22, 1995, and has been a member of the Bar continuously since that time, having
her office and place of business in Yamhill County, Oregon.
3.
McConnell enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On March 14, 2017, a Formal Complaint was filed against McConnell pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violations of
RPC 1.2(c) [assist a client in illegal or fraudulent conduct]; RPC 3.1 [knowingly take frivolous
action or assert a frivolous position without basis in law or fact]; RPC 4.1(a) [knowingly make
a false statement of material fact to a third person]; RPC 4.1(b) [failure to disclose material
fact when disclosure is necessary to avoid assisting in illegal or fraudulent act]; and RPC
8.4(a)(3) [conduct involving dishonesty, fraud, deceit, or misrepresentation reflecting
adversely on fitness to practice law]. The parties intend that this Stipulation for Discipline set
forth all relevant facts, violations and the agreed-upon sanction as a final disposition of the
proceeding.
Facts
5.
In 1987, John (“John”) and Violet (“Violet”) Wells executed the John L. Wells Trust.
It created two identical revocable trusts (“the John Trust” and “the Violet Trust,” respectively),
of which they were both co-trustees.
6.
The John Trust document stated that on Violet’s death, the trustee was to distribute the
balance of the trust as then constituted by giving the common stock of Wells Plastic, Inc.,
Cite as In re McConnell, 31 DB Rptr 213 (2017)
215
together with all real estate, equipment, fixtures, or other property directly related to the Wells
Plastic, Inc., and saw shop (“WPI”) business, to William Vermilyea (“Vermilyea”).
7.
On December 6, 1988, John died, making his trust irrevocable; but Violet’s trust
remained revocable. As a result of John’s death, Violet became the sole trustee of the John
Trust and the Violet Trust.
8.
At some time after John’s death, Violet transferred the equipment and the stock to the
Violet Trust.
9.
In September 2012, McConnell began representing Violet with respect to the Violet
Trust and in December 2012 with respect to the John Trust. At Violet’s request, McConnell
amended both trust documents to appoint William Mead (“Mead”) as the successor trustee to
both the John Trust and the Violet Trust upon Violet’s death. Mead had previously been named
him as a specific beneficiary of the Violet Trust, by which he would be given all of the stock
in WPI and Violet’s undivided one-half interest in her trust’s real estate.
10.
After Violet died, McConnell undertook to represent Mead in his capacity as successor
trustee for both trusts. During the period when Mead served as the successor trustee of the John
Trust, no property from the John Trust was distributed to Vermilyea.
11.
In July 2013, with McConnell’s assistance, Mead completed the purchase of the John
Trust real property to himself that had been initiated before Violet’s death, without notice to
Vermilyea.
12.
At all times relevant herein, ORS 130.540 provided that, unless otherwise provided by
the terms of the trust instrument, a contract of sale made by a trustee to convey property that
is the subject of a specific distribution is not a revocation of the specific distribution. If all or
part of the property that is the subject of the contract of sale has not been delivered at the time
set in the trust instrument for the specific distribution, the property passes by the specific
distribution but is subject to the terms of the contract of sale. In addition, at all relevant times
herein, ORS 130.520 provided that a “specific distribution” means a distribution of specific
property to a specific beneficiary that is required under the terms of a trust instrument.
Cite as In re McConnell, 31 DB Rptr 213 (2017)
216
13.
On January 30, 2014, Vermilyea wrote to McConnell asking about the John Trust and
seeking a copy of the trust agreement.
14.
On February 14, 2014, McConnell responded to Vermilyea that he was neither a
permissible distributee nor a “qualified beneficiary” of the John Trust and, therefore, was not
entitled to a copy of the trust instrument. Although this was Mead’s position, and McConnell’s
interpretation of the provisions of the trust, it was not supported by law or fact.
15.
After receiving McConnell’s February 14 letter, Vermilyea hired attorney Wilson
Muhlheim (“Muhlheim”). On April 4, 2014, Muhlheim followed up with McConnell and asked
whether the John Trust contained “a specific provision to distribute specific real estate to
William Vermilyea upon termination of the trust.”
16.
On April 29, 2014, McConnell responded to Muhlheim:
“To clarify my letter of February 14, 2014 to Mr. William Vermilyea, the
John L. Wells Trust does not contain a ‘specific provision to distribute
specific real estate to William Vermilyea.’”
Violations
17.
McConnell admits that her assertions that the John Trust did not contain a specific
provision applicable to Vermilyea, and her position that Vermilyea was not entitled to view
the John Trust document were without a non-frivolous basis in law or fact and thus violated
RPC 3.1.
18.
Upon further factual inquiry, the parties agree that the charges of alleged violations of
RPC 1.2(c), RPC 4.1(a), RPC 4.1(b), and RPC 8.4(a)(3) should be and, upon the approval of
this stipulation, are dismissed.
Sanction
19.
McConnell and the Bar agree that in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that McConnell’s conduct be analyzed by considering
Cite as In re McConnell, 31 DB Rptr 213 (2017)
217
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. McConnell violated her duty to the legal system to avoid abuse
of the legal process and prejudice to the administration of justice. Standards
§ 6.22
b. Mental State. McConnell’s conduct was knowing, that is, with the conscious
awareness of the nature or attendant circumstances of the conduct but without
the conscious objective or purpose to accomplish a particular result. Standards
at 9.
c. Injury. Injury can be actual or potential. Standards at 6; In re Williams, 314 Or
530, 547, 840 P2d 1280 (1992). McConnell caused actual injury to Vermilyea,
in that he had to hire and pay Muhlheim to determine his rights. McConnell also
caused significant potential injury to Vermilyea insofar as McConnell’s
statements and position may have prevented Vermilyea from making or
pursuing any claims against the John Trust.
d. Aggravating Circumstances. Aggravating circumstances include:
1. McConnell was in control of information necessary for Vermilyea to be
able to determine his legal rights. Standards § 9.22(h).
2. McConnell has substantial experience in the practice of law, having
been admitted in Oregon in 1992. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. McConnell has no prior discipline. Standards § 9.32(a).
2. McConnell has been cooperative with the Bar in its investigation of her
conduct and in the disciplinary proceeding. Standards § 9.32(e).
3. There has been delay in the disciplinary proceedings. Standards
§ 9.32(j).
4. McConnell has expressed remorse. Standards § 9.32(l).
20.
Under the ABA Standards, a suspension is generally appropriate when a lawyer knows
that she is violating a court order or rule, and causes injury or potential injury to a client or a
party, or causes interference or potential interference with a legal proceeding. Standards
§ 6.22. Given that McConnell’s mitigation outweighs the aggravating factors, something less
that the presumptive 6-month suspension suggested by the Standards
is sufficient.
Cite as In re McConnell, 31 DB Rptr 213 (2017)
218
21.
Oregon cases also hold that some period of suspension is appropriate. See, e.g., In re
Anderson, 27 DB Rptr 243, 246 (2013) (attorney suspended for 90 days where she pursued
multiple contempt and civil proceedings that lacked any good-faith factual or legal basis;
rather, filings were motivated by and the result of animosity toward the client’s former wife
and sister-in-law, and were “reckless, willful, malicious and in bad faith”); In re Obert, 352 Or
231, 282 P3d 825 (2012) (attorney suspended for 6 months where, despite instructions from a
trial judge in a civil case that the judge would grant a motion for JNOV in favor of attorney’s
client if one was filed and a caution about when such a motion was due, attorney failed to
timely file the motion and instead filed a notice of appeal, which deprived the trial court of
jurisdiction. The notice of appeal was defective, the appeal ultimately was dismissed, and
attorney failed to refile his posttrial motions timely; attorney also filed a second, untimely
notice of appeal, intending to argue that a criminal statute that permitted the late filing of a
notice of appeal should apply to his client’s civil case; this argument had no basis in law or
fact and therefore was the assertion of a frivolous position.); In re Smith, 348 Or 535, 236 P3d
137 (2010) (attorney suspended for 90 days where he represented a client who had disputes
with her employer, a nonprofit corporation that operated a medical marijuana clinic, and
advised the client that, because the nonprofit was administratively dissolved, the client had a
right to enter the clinic premises and attempt to take control of the operations, a position that
attorney knew was frivolous); In re Andersen, 18 DB Rptr 172 (2004) (attorney was suspended
for 4 months and required to formally reinstate where, without any legal right to do so, he
threatened to withhold from anopposing party bank records and rental files belonging to them
unless they settled the case on terms attorney proposed).
22.
Consistent with the Standards and Oregon case law, the parties agree that McConnell
shall be suspended for 90 days for her violation of RPC 3.1, the sanction to be effective August
5, 2017, or three days after approval by the Disciplinary Board, whichever is later.
23.
McConnell acknowledges that she has certain duties and responsibilities under the
Rules of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid
foreseeable prejudice to her clients during the term of her suspension. In this regard,
McConnell has arranged for Steven F. Cox (Bar No. 133374), at Northwest Property Law, 125
NE 3
rd
St., McMinnville, Oregon, an active member of the Bar, to either take possession of or
have ongoing access to McConnell’s client files and serve as the contact person for clients in
need of the files during the term of her suspension. McConnell represents that Mr. Cox has
agreed to accept this responsibility.
Cite as In re McConnell, 31 DB Rptr 213 (2017)
219
24.
McConnell acknowledges that reinstatement is not automatic on expiration of the
period of suspension. She is required to comply with the applicable provisions of Title 8 of the
Bar Rules of Procedure. McConnell also acknowledges that she cannot hold herself out as an
active member of the Bar or provide legal services or advice until she is notified that her license
to practice has been reinstated.
25.
McConnell acknowledges that she is subject to the Ethics School requirement set forth
in BR 6.4 and that a failure to complete the requirement timely under that rule may result in
her suspension or the denial of her reinstatement.
26.
McConnell represents that, in addition to Oregon, she also is admitted to practice law
in the jurisdictions listed in this paragraph, whether her current status is active, inactive, or
suspended, and she acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which McConnell is admitted: None.
27.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 31st day of July, 2017.
/s/ Sheryl S. McConnell
Sheryl S. McConnell
OSB No. 953538
APPROVED AS TO FORM AND CONTENT:
/s/ David J. Elkanich
David J. Elkanich
OSB No. 992558
EXECUTED this 1st day of August, 2017.
OREGON STATE BAR
By: /s/ Amber Bevacqua-Lynott
Amber Bevacqua-Lynott
OSB No. 990280
Chief Assistant Disciplinary Counsel
Cite as In re Stedman, 31 DB Rptr 220 (2017)
220
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 15-27, 15-40, 15-61 &
) 15-99
MICHAEL REUBEN STEDMAN, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: None.
Disciplinary Board: John E. Davis, Chairperson
April L. Sevcik
Dr. Anthony J. Rosilez, Public Member
Disposition: Violation of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC
1.5(a); RPC 1.15-1(a); RPC 1.15-1(c); RPC 1.16(c);
RPC 1.16(d); RPC 3.3(a); RPC 3.4(c); RPC 8.1(a)(2);
RPC 8.4(a)(3); and RPC 8.4(a)(4). Trial Panel Opinion.
Disbarment.
Effective Date of Opinion: August 15, 2017
TRIAL PANEL OPINION
The Oregon State Bar [“the Bar”] filed a formal Amended Complaint in this matter on
June 8, 2016, alleging Michael Reuben Stedman [“the Accused”] violated the Rules of
Professional Conduct [RPC] in 22 violations. The Accused was served with the formal
Complaint on January 9, 2017 and failed to appear. The Accused did not filed an Answer to
the formal Amended Complaint.
The Bar submitted a Memorandum regarding Sanctions on May 10, 2017.
NATURE OF CHARGES AND DEFENSES
The Bar has alleged causes of complaint against the Accused as follows:
1. First Cause of Complaint: In Case No. 15-40 [the Goss matter] In the Goss
matter, the Accused knowingly made false statements to a tribunal, engaged in conduct
involving misrepresentation and dishonesty reflecting adversely on the fitness of the accused
Cite as In re Stedman, 31 DB Rptr 220 (2017)
221
to practice law and engaging in conduct prejudicial to the administration of justice in violation
of RPC 3.3A and RPC 8.4(a)(3)and RPC 8.4(a)(4).
2. Second Cause of Complaint: In Case No. 15-27 [the Husel matter] In the
Husel matter the Accused is charged with neglect of a legal matter, failure to keep a client
reasonably informed about the status of a matter or respond to a request for information,
collecting a clearly excessive fee, failing to hold client property separate from his own
property, failing to deposit into Trust fees and expenses paid in advice and engaging in conduct
involving misrepresentation and dishonesty in violation of RPC 1.3, RPC 1.4(a), RPC 1.5(a),
RPC 1.15-1(a) RPC 1.15-1(c) and RPC 1.4(a)(3).
3. Third Cause of Complaint: Failing to respond relative to the Husel matter in
violation RPC 8.1(a)(2).
4. Fourth Cause of Complaint: In Case No. 15-61 [the Renn matter] In the
Renn matter, the Bar asserts the Accused neglected a legal matter intrusted to him and failed
to comply with applicable law requiring notice of a tribunal when terminating a representation,
knowingly disobeying an obligation under the rules of a tribunal in conduct prejudicial to the
administration of justice in violation of RPC 1.3, RPC 1.16(c), RPC 3.1(c) and RPC 8.4(a)(4).
5. Fifth Cause of Complaint: The Bar asserts the Accused in the Renn matter
failed to respond to lawful demands from the Disciplinary Authority in violation of RPC
8.1(a)(2).
6. Sixth Cause of Complaint: In Case No. 15-99 [the Barreras matter] In the
Barreras matter, the Bar asserts the Accused neglected a legal matter, failed to communicate
with a client, failed to explain a matter to permit a client to make an informed decision
regarding the representation, charging or collecting an excessive fee, failure to refunds upon
termination of representation and conduct involving dishonesty or misrepresentation in
violation of RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.16(d) and RPC 8.4(a)(3).
7. Seventh Cause of Complaint: The Bar asserts the Accused in the Barreras
matter failed to respond to lawful demand to a Disciplinary Authority in violation of RPC 8.1
(a)(2).
Based on a Motion for Default, an Order of Default was entered on March 20, 2017,
by the Region 3 Chair Person.
The Bar filed a Memorandum in Support of Sanctions dated May 10, 2017. The
Accused did not respond.
SUMMARY OF UNDISPUTED FACTS
All facts are undisputed, as the Accused did not appear and an Order of Default has
been entered.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
222
8. The Presiding Administrative Law Judge Robert L. Goss Matter - Case
No. 15-40: From approximately July 2011 through 2012, Stedman filed requests for “implied
consent” hearings for individuals who had been stopped by law enforcement officers for
vehicular code violations. Stedman did not represent most of these individuals and, in most
cases, had never met or communicated with them prior to requesting hearings on their behalf.
In response to Stedman’s requests for hearing, the Oregon Office of Administrative
Hearings scheduled hearings and issued subpoenas, including subpoenas duces tecum that
directed law enforcement officers to produce discovery.
In many instances, Stedman failed to notify the individuals in whose names he had filed
requests for “implied consent” hearings that hearing had been scheduled for them. Some of
these individuals failed to appear for the hearings. Others appeared at the hearings, unrepre-
sented and unaware of why they had been required to attend. Toward the end of 2012, the
presiding administrative law judge ultimately refused to set hearings on requests Stedman filed
and directed Stedman to contact him. Stedman failed to do so.
At the time he filed the requests for hearing with the Office of Administrative Hearings,
Stedman knew he did not represent most of the individuals described above. He was also aware
that the petitions he filed for them were false and misleading, in that they contained material
misrepresentations, including that he represented the named individuals.
Stedman also knew his conduct in repeatedly filing the false requests for hearing lacked
integrity and was dishonest when he engaged in it.
9. The Richard Husel Matter - Case No. 15-27: In January 2012, Richard Husel
[“Husel”] retained Stedman to represent him in a criminal matter alleging theft by deception
[“Husel matter”]. Husel paid Stedman a retainer of $6,500 [“Husel retainer”] pursuant to an
oral fee agreement for which Stedman agreed to pursue a civil compromise on Husel’s behalf.
Stedman failed to deposit the Husel retainer into a lawyer trust account. Stedman did not keep
adequate records of his receipt or the disposition of the Husel retainer, and instead knowingly
converted some or all of it to his own personal use, unrelated to the Husel matter.
Between January 2012 and July 25, 2013, Stedman failed to take any substantive steps
to resolve the Husel matter or obtain a civil compromise, and failed to respond to Husel’s
multiple attempts to communicate with him regarding the status of his case. On July 25, 2013,
Stedman stated to Husel that he had negotiated a civil compromise for a payment to Husel’s
alleged victim of $5,000. This representation was false and material, and Stedman knew it was
false and material when he made it.
On July 25, 2013, Husel paid Stedman $5,000 to effect the civil compromise agreement
[“Husel payment”]. Stedman did not deposit the Husel payment into his lawyer trust account.
Stedman did not keep adequate records of his receipt or the disposition of the Husel payment,
Cite as In re Stedman, 31 DB Rptr 220 (2017)
223
and did not pay the money to Husel’s alleged victim. Rather, Stedman knowingly converted
some or all of the Husel payment to his own personal use, unrelated to the Husel matter.
In October 2013, when Husel heard nothing more from Stedman, but received a second
trial notice from the court, Husel contacted Stedman about the status of the civil compromise.
Stedman advised Husel that he was closing his law office. Husel requested an accounting of
the Husel payment. Stedman did not respond and Husel could not thereafter reach him.
Following demand from Husel’s new attorney, Stedman sent $5,000 to Husel’s new attorney
in funds drawn from an account other than Stedman’s lawyer trust account.
On April 13, 2015, the Disciplinary Counsel’s Office [“DCO”] of the Bar requested
that Stedman account for his conduct in the Husel matter. Stedman did not respond. On or
about May 14, 2015, DCO again requested Stedman’s account of his conduct. Stedman did not
respond and, pursuant to BR 7.1, DCO petitioned the Disciplinary Board for Stedman’s
suspension and notified Stedman of this action. Stedman did not respond to DCO’s petition
and, on June 23, 2015, Stedman was suspended by Order of the Disciplinary Board.
10. The Honorable Thomas M. Renn Matter - Case No. 15-61: Local Bank-
ruptcy Rule [“LBR”] 10-06-1(b) provides that payment of the filing fee was required when a
bankruptcy petition was filed with the court. A debtor was required to tender not less than the
amount specified on the current version of LBR #110.
On September 19, 2013, Stedman filed a bankruptcy petition with the court on behalf
of Brandi Lyn Brickey [“Brickey”] without paying the required filing fee. On or about
September 20, 2013, Stedman also filed a bankruptcy petition on behalf of his client, Joan H.
Gill [“Gill”], without paying the required filing fee. As a result of his failure to pay the filing
fees in the Brickey and Gill matters, on October 4, 2013, the bankruptcy court for the District
of Oregon ordered Stedman to appear on October 23, 2013, and show cause why his attorney
fee in both matters should not be reduced.
On October 8 and 11, 2013, Stedman paid the bankruptcy court filing fees in the
Brickey and Gill matters, but did not advise the court that he had done so. As a result of his
failure to so advise the court, the October 23, 2013 show cause hearing remained on the
calendar. Stedman failed to appear at the October 23, 2013 show cause hearing. The court
reviewed both the Gill and Brickey matters and noted that Stedman had subsequently paid the
filing fee, but ordered Stedman to disgorge $500 in attorney fees to each client and submit
proof of payment to the court within ten days. Stedman failed to comply with the court’s order,
and on or about November 8, 2013, the court ordered Stedman to attend a mediation before
Judge Alley to address his failure to comply.
Stedman failed to contact Judge Alley or respond to Judge Alley’s attempts to contact
him. The court also attempted to contact Stedman and discovered that his telephone and
facsimile numbers were disconnected, and his website was not operational. Stedman did not
Cite as In re Stedman, 31 DB Rptr 220 (2017)
224
comply with the court’s order to attend mediation. The following conduct by Stedman
interfered with the court’s ability to conduct its business.
11. his failure to pay the filing fees;
12. his failure to respond to the court’s efforts to contact him;
13. his failure to appear at the show cause hearing;
14. his failure to disgorge fees; and
15. his failure to cooperate with Judge Alley’s attempts to schedule a mediation.
LBR 9010-1(f)(2) required attorneys for Chapter 7 debtors to file motions to withdraw
upon completion of services to a client and obtain the court’s permission to withdraw. Despite
failing to advance or complete the Brickey or Gill bankruptcies, Stedman failed to file a motion
to withdraw from either matter and failed to obtain the court’s permission to withdraw.
On April 9, 2014, DCO received a complaint from Bankruptcy Court Judge Thomas
M. Renn regarding Stedman’s conduct, and requested that Stedman respond to Judge Renn’s
allegations on or before April 30, 2014. Stedman did not respond. On May 22, 2014, DCO
again requested that Stedman respond to Judge Renn’s complaints. Stedman received this
request on or about May 27, 2014, and attorney Larry B. Workman [“Workman”] forwarded
Stedman’s written response.
On March 19, 2015, DCO made further inquiries about Stedman’s conduct. Workman
provided an incomplete response to the additional inquiries on Stedman’s behalf. On or about
April 10, 2015, DCO requested Stedman provide a complete response to its inquiries. On or
about May 20, 2015, Workman withdrew from the representation, and Stedman thereafter
failed to respond to DCO’s March 19, April 10, and subsequent inquiries.
16. The Christopher Simon Barreras Matter - Case No. 15-99: In April 2013,
Christopher Simon Barreras [“Barreras”] retained Stedman to represent him in a criminal DUII
matter in Jackson County. Barreras paid Stedman a total of $7,500 to represent him at all
pretrial conferences, any motion to suppress and trial. Shortly after Barreras paid Stedman’s
retainer, he was unable to reach Stedman by email or telephone because Stedman abandoned
his law practice without notice to his clients.
When Stedman closed his law office, he effectively terminated his representation of
Barreras and took no steps to protect his interest. He failed to inform Barreras that he would
no longer represent him; obtain Barreras’ consent to transfer his file to another attorney;
provide him with a copy of his file; or refund any unearned portion of his retainer.
Barreras learned at his first court appearance that Stedman no longer represented him
and that his criminal case had been transferred to another attorney, Garren Pedemonte
Cite as In re Stedman, 31 DB Rptr 220 (2017)
225
[“Pedemonte”], without Barreras’ knowledge or consent. Barreras’ case did not go to trial, but
was instead resolved by plea.
Before he abandoned his law practice, Stedman contacted Pedemonte and paid him a
lump sum to represent certain of Stedman’s clients without further charge to them. Stedman
affirmatively and knowingly represented to Pedemonte that he had obtained Barreras’ consent
to have Pedemonte substitute unto the case. Stedman knew that it was false and material when
he made it.
Shortly after contacting Pedemonte, Stedman left Oregon and moved to Mexico.
Stedman failed to refund Barreras’ $7,500 retainer, knowing he had not earned most of it and
thereafter knowingly converted Barreras’ funds to his own personal use.
On or about July 20, 2015, DCO received a complaint from Barreras regarding
Stedman’s conduct and requested that Stedman respond to Barreras’ allegations on or before
August 14, 2015. Stedman did not respond. On August 27, 2015, DCO again requested by first
class mail and by certified mail, return receipt requested, that Stedman respond to Barreras’
complaints. The letter sent by certified mail was returned on September 28, 2015 as
“unclaimed/unable to forward.” The first class letter was not returned. Stedman did not
respond.
On October 1, 2015, the bar moved to suspend Stedman pursuant to BR 7.1. On
November 6, 2015, DCO sent a letter by certified mail to Stedman with notice of the petition
to his address on record with the Bar but Stedman did not respond.
CONCLUSIONS OF LAW
1. First Cause of Complaint: In Case No. 15-40 [the Goss matter]:
RPC 3.3(a) - False Statements to tribunal
RPC 3.3(a) prohibits lawyers from knowingly making a false statement of law or fact
to a tribunal. RPC 1.0(p) defines tribunal as court, an arbitrator in a binding arbitration
proceeding, or legislative body, administrative agency, or other body acting in an adjudicative
capacity. The rule further states that a legislative body, administrative agency, or other body
acts in an adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will then render a binding legal judgment directly affecting
a party’s interest in a particular matter.
By sending letters to the Office of Administrative Hearings, purportedly from persons
who had no idea the requests were being made in their names, Stedman made misrepre-
sentations of material fact to a tribunal, in violation of RPC 3.3(a).
RPC 8.4(a)(3) - Conduct involving dishonesty & misrepresentation:
RPC 8.4(a)(3) prohibits lawyers from engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law. An
Cite as In re Stedman, 31 DB Rptr 220 (2017)
226
affirmative misrepresentation is a knowing, false statement of material fact. In re Kumley, 335
Or 639, 644, 75 P3d 432 (2003). Dishonesty, as contemplated by the rule, is a broader concept
than deceit or fraud, and does not require the same level of culpable mental state. In re Leonard,
308 Or 560, 569, 784 P2d 95 (1989). Dishonesty is conduct that indicates that the attorney
“lacks aspects of trustworthiness and integrity that are relevant to the practice of law.” In re
Carpenter, 337 Or 226, 236, 95 P3d 203 (2004).
Stedman made misrepresentations to the Office of Administrative Hearings because he
sent “Stedman letters” on behalf of persons who did not authorize him to do so. The
misrepresentations were material in that they were likely to - and did - affect the decision
making process of the recipient by inducing Office of Administrative Hearings to schedule
hearings, issue subpoenas, send notices and subpoenas to the purported petitioners, and have
administrative law judges and police officers travel to and appear for hearings. See In re
Roberts, 15 DB Rptr 133 (2001) (attorney guilty of misrepresentation by omission/dishonesty
when he initiated an arbitration proceeding in the name of a client and a party he did not
represent and negotiated with the opposing party without disclosing that he did not represent
one of the plaintiffs).
Stedman’s letter writing campaign was also “dishonest” conduct, within the meaning
of RPC 8.4(a)(3). See In re Carpenter, 330 Or at 234–37 (attorney engaged in dishonesty when
he created an internet bulletin account in the name of a high school teacher in his community
and posted a message purportedly written by the teacher that suggested that the teacher had
engaged in sexual relations with his students).
Stedman’s conduct was dishonest because his conduct disregarded the legal rights of
those members of the public that he involved in his campaign and demonstrates that he lacks
“the requisite trustworthiness and integrity to handle important matters involving legal rights
that clients commonly entrust to lawyers.” Id. at 237.
Stedman’s misrepresentations and dishonest conduct violated RPC 8.4(a)(3).
RPC 8.4(a)(4) - Conduct prejudicial to the administration of justice.
RPC 8.4(a)(4) prohibits lawyers from engaging in conduct that is prejudicial to the
administration of justice.
A lawyer violates RPC 8.4(a)(4) when he does something he should not do or fails to
do something he should do, and thereby prejudices the administration of justice. In re Hartfield,
349 Or 108, 115 (2010). “Prejudice” for purposes of RPC 8.4(a)(4) can be either to the
administrative functioning of the case or the substantive interests of a party. In re Gustafson,
327 Or 636, 643 (1998). Where a lawyer has engaged in a single wrongful act, the court
requires the Bar to demonstrate substantial harm to the administration of justice. In re Haws,
310 Or 741, 748 (1990). Where the lawyer has engaged in repeated conduct, the Bar need only
demonstrate some harm. Id.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
227
Stedman sent out many letters requesting hearings on behalf of persons who were not
his clients and who had no idea he was doing so. In several instances, the court scheduled a
hearing and sent out notices and subpoenas. Administrative law judges and police officers
appeared for hearing but often the purported petitioner did not. Office of Administrative
Hearings resources were wasted, as well as the time of administrative law judges and police
officers. Stedman engaged in as many wrongful acts as he sent misrepresetative letters to the
Office of Administrative Hearings, and he also caused significant actual harm to the procedural
functioning of Office of Administrative Hearings, all in violation of RPC 8.4(a)(4).
2. Second Cause of Complaint: The Richard Husel Matter - Case No. 15-27
RPC 1.5(a) - Clearly excessive fee
RPC 1.5(a) & (c) - Duty to deposit client funds ($6,500 Husel retainer) into trust
RPC 1.5(a) prohibits lawyers from charging or collecting a clearly excessive fee. See
In re Fadeley, 342 Or 403, 153 P3d 682 (2007) (even though attorney considered the $10,000
retainer he accepted in a divorce case to be nonrefundable and earned on receipt, it became a
clearly excessive fee when the client terminated him before much work had been done and the
legal matter was not completed); In re Balocca, 342 Or 279, 151 P3d 154 (2007) (attorney may
not agree to perform specified legal services for a flat fee, fail to complete the work, and then
claim that he has earned the fee; in this context, keeping the fee without completing the work
is collecting an excessive fee).
RPC 1.15-1(a) and RPC 1.15-1(c) require client funds to be held separate from the
lawyer’s own property and deposited into a lawyer trust account to be withdrawn only as fees
are earned or costs expended.
Stedman was required to refund some or all of Husel’s $6,500 retainer because he failed
to complete the objective of the representation when he took no substantive steps to resolve
Husel’s matter or to obtain a civil compromise. Stedman’s failure to make any refund to his
client of the unearned portion or all of the retainer makes the fee “clearly excessive” in
violation of RPC 1.5(a). Id.
Stedman treated Husel’s payment of the $6,500 retainer as a flat fee without any written
fee agreement containing the language required by RPC 1.5(c)(3). Stedman failed to meet his
obligation to prove the existence of a written fee agreement that would have allowed him to
treat the funds as a flat fee and not deposit them into his lawyer trust account. In In re Balocca,
342 Or at 288–89, the court stated: “client funds must be deposited into a lawyer trust account
unless a written agreement provides that the funds are nonrefundable and are deemed earned
upon receipt... although the Bar has the burden of proving the alleged violations by clear and
convincing evidence, it does not have the burden of proving the nonexistence of the fee
agreement. Rather, because the accused sought to rely on the existence of the fee agreement to
Cite as In re Stedman, 31 DB Rptr 220 (2017)
228
justify his handling of [his client’s] payments, it is his burden to demonstrate the existence of
such an agreement.”
In the absence of a written fee agreement containing the appropriate language, Husel’s
$6,500 retainer represented an advance retainer to be billed against hourly; as such Stedman
was required to deposit the money into trust and withdraw it only as earned. His failure to have
done so, under these circumstances, also violated RPC 1.15-1(a) and (c).
RPC 1.3 - Neglect of Husel’s legal matter
RPC 1.4(a) - Failure to communicate with client Husel
RPC 8.4(A)(3) - Misrepresentation to client Husel
RPC 1.3 prohibits lawyers from neglecting legal matters entrusted to them. In order to
find a violation of this rule, the lawyer’s conduct must be viewed in the broader context of the
representation as a whole, rather than by focusing on specific aspects of the representation, and
must display a course of neglectful conduct. In re Magar, 335 Or 306, 321, 66 P3d
1014 (2003). Failure to take constructive action to advance or protect a client’s legal position,
even though some services are rendered, can be neglect. In re Meyer, 328 Or 220, 225, 970
P2d 647 (1999).
RPC 1.4(a) requires a lawyer to keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information. See In re Snyder, 348
Or 307, 232 P3d 952 (2010) (attorney’s failure to respond to his personal injury client’s status
inquiries, failure to inform the client of communications with the adverse party and with the
client’s own insurer, and failure to explain the strategy attorney decided upon regarding settle-
ment negotiations, were not just poor client relations; attorney kept from the client precisely
the kind of information that the client needed to know to make informed decisions about the
case).
RPC 8.4(a)(3) prohibits lawyers from making misrepresentations reflecting adversely
on the lawyer’s fitness to practice. A lawyer who lies to a client about the status of a case
violates this rule. In re Groom, 22 DB Rptr 124 (2008).
Stedman neglected Husel’s case over the course of a nearly two-year period when he
failed to do anything to meet his client’s objective, failed to keep Husel reasonably informed
and respond to his inquiries, misrepresented to Husel that he had negotiated a civil compromise
in an amount of $5,000 and then fled to Mexico.
Stedman’s conduct violated RPC 1.3, RPC 1.4(a), and RPC 8.4(a)(3).
Cite as In re Stedman, 31 DB Rptr 220 (2017)
229
RPC 1.15-1(a) & (c) - Duty to deposit client funds (Husel $5,000 for the supposed civil
compromise) into trust.
RPC 8.4(a)(3) - Knowing & dishonest conversion of client funds
RPC 1.15(a) and (c) require client funds to be deposited into trust and withdrawn only
as fees are earned or costs expended.
RPC 8.4(a)(3) prohibits conduct involving dishonestly, deceit, fraud or misrepre-
sentation reflecting adversely on a lawyer’s fitness to practice law.
The $5,000 that Husel paid to Stedman for the civil compromise that Stedman falsely
claimed had been negotiated in July 2013 constituted client funds. Stedman was required to
deposit Husel’s $5,000 into trust; in failing to do so, he violated RPC 1.15-1(a) and RPC 1.15-
1(c).
Taking a client’s money before it is earned constitutes conversion (i.e., the intentional
exercise of dominion or control over a chattel that so seriously interferes with another’s right
of control that the actor may justly be required to pay the other the full value of the chattel). In
re Martin, 328 Or 177, 184–88, 970 P2d 638 (1998); In re Whipple, 320 Or 476, 481, 886 P2d
7 (1994). It is intentional or knowing conversion to take client money before it is earned, even
though legal work may be underway or completed in the near future. In re Martin, 328 Or at
188; In re Whipple, 320 Or at 481.
Stedman had possession and use of Husel’s $5,000 between July 2013 and December
2013. Stedman had no right to possession or use of Husel’s $5,000 as Husel provided it to
Stedman for payment of a purported civil compromise. Stedman procured the funds by falsely
asserting that he had negotiated a civil compromise. Stedman had no claim himself to the funds;
rather, they were intended to be paid to a third party. Stedman did not pay Husel’s alleged
victim. Instead, Stedman knowingly and dishonestly converted Husel’s funds in violation of
RPC 8.4(a)(3). The fact that the later (indirectly) repaid the client does not negate the wrongful
taking of the funds in the first place. See In re Pierson, 280 Or 513, 571 P2d 907 (1977)
(notwithstanding his full restitution to client, attorney disbarred for a single count of dishonest
conversion of client funds).
It is well-established in Oregon that attorney “discipline is not dependent upon the
attorney’s financial ability to rectify the results of his unethical conduct.” Id. at 518.
Given the circumstances under which the Husel money was paid (the supposed civil
compromise) to Stedman: (i) the failure to deposit the money into trust, (ii) the failure to
effectuate a civil compromise, (III) the abandonment of clients, closure of his law practice and
unannounced departure to Mexico, and (iv) the repayment of the money only after Husel’s
Nevada attorney made repeated demands upon him, Stedman knowingly and dishonestly
converted the client’s $5,000 for his own use, in violation of RPC 8.4(a)(3).
Cite as In re Stedman, 31 DB Rptr 220 (2017)
230
RPC 8.2(a)(2) - Failure to respond to disciplinary inquiry
RPC 8.2(a)(2) prohibits lawyers from knowingly failing to respond to lawful demands
for information from disciplinary authority. Stedman’s knowing failures to respond to DCO
violates RPC 8.1(a)(2).
3. Third Cause of Complaint: The Honorable Thomas M. Renn Matter - Case No.
15-61
RPC 1.3 - Neglect of a legal matter
RPC 1.3 prohibits lawyers from neglecting legal matters entrusted to them. Stedman
violated RPC 1.3 when he failed to act timely to advance or protect the interests of his
bankruptcy clients. In re Meyer, 328 Or 220, 225 (1999) (emphasis added) provides that:
...the trial panel concluded that the accused did not violate DR 6-101(B)
[now RPC 1.3], because his failures constituted an “isolated instance of
neglect rather than a pattern of neglect.” On review, the Bar assets that, even
though the accused’s course of conduct lasted only two months, and even
though he did render some services during that period, the accused violated
[what is now RPC 1.3], because he took no constructive action to advance
or to protect [his client’s] legal position, especially as to the issue of
temporary spousal and child support, which was [his client’s] primary con-
cern. We agree.
LBR 1006-1(b) requires filing fees to be paid at the time of the filing. When the
bankruptcy clerk tried to contact him about his failure to pay the Brickey and Gill bankruptcy
filing fees, Stedman did not respond. As a result, the court ordered Stedman to appear and
show cause why his attorney fees should not be reduced as a sanction.
Because Stedman paid the filing fees a few days after the court sent him the show cause
order, it is reasonable to conclude that he received the order. The court did not take the show
cause hearing off the calendar. After the hearing - which Stedman did not attend - he failed to
respond or comply with the court’s order to disgorge some of his attorney fees, and he failed
to comply with the order requiring him to attend mediation. Timely payment of the required
filing fees and responding to the bankruptcy court on behalf of Gill and Brickey were legal
matters entrusted to Stedman. So too, was the general obligation to timely comply with the
court’s order. See, e.g., In re Derby, 19 DB Rptr 316 (2005) (attorney guilty of neglect for
repeatedly failing to file required documents in a probate proceeding despite numerous
inquiries and directives from the court). Stedman violated RPC 1.3.
RPC 1.16(c) - Duty to comply with notice to or permission of a tribunal when terminating
representation
RPC 1.16(c) requires lawyers to comply with applicable law requiring law requiring
notice or permission of a tribunal when terminating a representation.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
231
LBR 9010-1(e)(2) requires attorneys for Chapter 7 debtors to file motions to withdraw
upon completion of services. Stedman did not answer DCO’s inquiry about whether he
completed the objective of his representation of Brickey and Gill. The PACER reports show
that their Chapter 7 bankruptcy matters continued for months after Stedman’s last appearance.
Stedman never filed any motion to withdraw.
In failing to comply with LBR 9010-1(e)(2), Stedman violated RPC 1.16(c).
RPC 3.4(c) - Knowingly disobeying an obligation under the rules of a tribunal
RPC 3.4(c) prohibits lawyers from knowingly disobeying an obligation under the rules
of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.
Stedman knowingly failed to comply with three court orders: (i) that he appear and
show cause on October 23, 2013; (ii) that he disgorge fees to Brickey and Gill; and (iii) that he
attend mediation before Judge Alley.
With respect to the first (show cause order), Stedman’s payment for filing fees several
days after the court issued this order supports the reasonable inference that he did indeed
receive it. With respect to the second order (disgorgement), Stedman knew about the show
cause hearing in advance and thus that the court might make a further order. Stedman did not
comply with the court’s order to attend mediation.
Stedman violated RPC 3.4(c) based on his failure to comply with the show cause and
the disgorgement orders.
RPC 8.1(a)(2) - Duty to respond to disciplinary inquiries
RPC 8.1(a)(2) prohibits lawyers from knowingly failing to respond to an inquiry from
a disciplinary authority.
Stedman knowingly failed to respond to several of DCO’s questions. Specifically, he
did not provide responsive information about the procedures he took when he closed his
practice, whether he completed his representation of Brickey and Gill, and steps he took to
notify Brickey and Gill of his withdrawal from their representation, the date he learned from
his former legal assistant of the disgorgement order, and why he still has not complied with
that order. Stedman violated RPC 8.1(a)(2).
RPC 8.4(a)(4) - Conduct prejudicial to the administration of justice
RPC 8.4(a)(4) prohibits lawyers from engaging in conduct prejudicial to the
administration of justice.
Stedman engaged in several acts that prejudiced the court’s ability to conduct business.
He failed to pay filing fees, failed to respond to the court clerk’s efforts to contact him
(necessitating the intervention of judges), failed to appear at the show cause hearing, and failed
to disgorge fees (necessitating the involvement of the court and mediator), and then failed to
cooperate with the judge’s efforts to schedule a mediation.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
232
Stedman committed several wrongful acts that caused substantial actual and potential
harm to the administration of justice, in violation of RPC 8.4(a)(4).
4. Third Cause of Complaint: The Barreras Matter - Case No. 15-99
RPC 1.3 - Neglect of a legal matter
RPC 1.3 prohibits a lawyer from neglecting a legal matter entrusted to the lawyer.
Failure to take constructive action to advance or protect a client’s legal position over an
extended period of time constitutes neglect. In re Meyer, 328 Or at 225. Stedman failed to
render the agreed-upon legal services for Barreras after he was retained in April 2013, in
violation of RPC 1.3. See, e.g., In re Koch, 345 Or 444, 198 P3d 910 (2008) (respondent
attorney committed neglect when she failed to advise her client that another lawyer would
prepare a qualified domestic relations order for the client and thereafter failed to communicate
with the client and that second lawyer when they needed information and assistance from
attorney to complete the legal matter.)
RPC 1.4(a) - Failure to communicate with client
RPC 1.4(b) - Failure to explain a matter to permit a client to make informed decisions
regarding the representation
RPC 1.4(a) requires a lawyer to keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information. RPC 1.4(b) requires a
lawyer to explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
“A lawyer owes to a client the duty of diligence, which requires that the lawyer com-
municate with and keep the client informed of the status, progress and disposition of a legal
matter.” In re Bourcier, 325 Or 429, 434, 939 P2d 604 (1997).
Stedman never communicated with Barreras after their first meeting. Shortly after
Stedman received Barreras’s money, he closed his office and disappeared to Mexico, without
any warning to Barreras that he intended to stop practicing law and made no refund of his
client’s $7,500 retainer. Stedman violated both RPC 1.4(a) and (b).
RPC 1.5(a) - Charging or collecting an excessive fee
RPC 1.5(a) prohibits a lawyer from charging a clearly excessive fee. Where a lawyer
charges a flat fee for certain services, the flat fee can become excessive if the agreed-upon
services are not performed. In re Balocca, 342 Or at 291. Stedman charged Barreras a flat fee
to represent him through trial, but performed no services at all. Stedman violated RPC 1.5(a).
RPC 1.16(d) - Failure to refund client funds on termination of employment
RPC 1.16(d) requires a lawyer, upon termination of employment, to take steps to the
extent reasonably practicable to protect a client’s interests, including reasonable notice to a
Cite as In re Stedman, 31 DB Rptr 220 (2017)
233
client and to refund any advance payment of fee or expense that has not been earned or has not
been incurred.
Stedman gave Barreras no notice that he had terminated the representation. Pursuant to
the terms of his fee agreement, Stedman did not earn $5,500 of the $7,500 Barreras had paid
him in advance because the case was settled without a trial. Stedman terminated his
representation of Barreras by unilaterally transferring the case to Pedemonte and has never
refunded any unearned fees. This violated RPC 1.16(d). See In re Castanza, 350 Or 293, 253
P3d 1057 (2011) (attorney violated rule when he withdrew from representing clients in a civil
action, but failed to allow the clients sufficient time to employ other counsel, attempt to
postpone the trial date, file a notice of withdrawal, respond to a pending motion to dismiss filed
by the opposing party, respond to opposing counsel’s proposed general judgment and cost bill,
or communicate with the clients about the judgment and cost bill).
RPC 8.1(a)(2) - Failure to respond to DCO
RPC 8.1(a)(2) requires a lawyer to respond to lawful demands for information from
DCO. By letter dated July 24, 2015, DCO required Stedman’s response to Barreras’ complaint.
The letter was addressed to Stedman at the address then on record with the Bar (132 West Main
Street, Suite 102, Medford, OR 97501), as well as to an address found by the DCO investigator
(142 Theo Drive, Talent, OR., 97540). Both letters were sent by first class mail. The letter sent
to the Medford address was returned as “not deliverable as addressed/unable to forward.” The
letter sent to the Talent address was not returned, and Stedman did not respond to it. The Talent
address belongs to Stedman’s father, who presumably received and notified Stedman of the
correspondence.
By letter dated August 27, 2015, DCO again requested Stedman’s response to Barreras’
complaint. The letter was addressed to Stedman at 142 Theo Drive, Talent, OR., 97540. This
letter was sent by both first class and by certified mail, return receipt requested. The letter sent
by certified mail, return receipt requested was returned on September 28, 2015 as
“unclaimed/unable to forward.” The first class letter has not been returned. To date, Stedman
had not responded to DOS’s inquiries.
On October 1, 2015, a petition for suspension pursuant to BR 7.1 was filed and mailed
to Stedman’s Talent address. He was suspended on October 12, 2015. The reasonable inference
is that his father at least alerted Stedman of the DCO correspondence he received at the Talent
address. Stedman’s knowing conduct violated RPC 8.1(a)(2).
RPC 8.4(a)(3) - Conduct involving dishonest or misrepresentation (Barreras’ $7,500
retainer)
RPC 8.4(a)(3) provides that it is a professional misconduct for a lawyer to engage in
conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the
Cite as In re Stedman, 31 DB Rptr 220 (2017)
234
lawyer’s fitness to practice law. Knowing conversion of client funds is dishonesty under this
rule. In re Eakin, 334 Or 238, 249, 48 P3d 147 (2002).
Stedman closed his office and disappeared after failing to earn Barreras’ $7,500
retainer. The reasonable inference from his timeline (and from the fact that Barreras has
received no requested refund) is that Stedman intentionally and dishonestly converted
Barreras’ money for his own use. Stedman violated RPC 8.4(a)(3). See In re Biggs, 318 Or
281, 294, 864 P2d 1310 (1994) (an attorney engages in prohibited conduct involving
dishonesty, fraud, deceit or misrepresentation when he converts client funds by paying himself
unearned fees from client funds).
Lastly, Stedman lied to attorney Pedemonte when he affirmatively and knowingly
represented to Pedemonte that he had obtained Barreras’ consent to have Pedemonte substitute
into the case. Stedman knew that this representation was false and material to Barreras and
Pedemonte, and Stedman knew that it was false and material when he made it. Stedman
violated RPC 8.4(a)(3).
SANCTION
The Oregon Supreme Court refers to the ABA Standards for Imposing Lawyer
Sanctions (“Standards”) and case law from the Oregon Supreme Court in determining an
appropriate sanction.
A. ABA Standards. The Standards establish an analytical framework for deter-
mining the appropriate sanction in discipline cases using four (4) factors: the general duty
violated, the lawyer’s mental state, the actual or potential injury caused, and the existence of
aggravating and mitigating circumstances. Once these factors are analyzed, the sanction may
be adjusted based on the existence of aggravating or mitigating circumstances.
B. General Duties Violated. The Standards provide that the most important
ethical duties are those which lawyers owe their clients. Standard at 5. Stedman violated his
duties to his clients to appropriately safeguard their funds and to act with reasonable diligence,
promptness (including adequate communication), and candor. Standards §§ 4.1, 4.4, 4.6.
Stedman’s misrepresentations to the court violated his duty of candor to the legal system.
Standards § 6.1. His systematic failure to cooperate in the Bar’s investigations was conduct
prejudicial to the administration of justice that abused the legal process. Standards § 6.2. In
knowingly and dishonestly converting his clients’ funds and in collecting excessive fees,
Stedman violated his duties to his clients, the public, and his duties as a professional. Standards
§§ 5.1, 7.0.
Stedman violated his duty to the profession in failing to properly withdraw from
representation and to cooperate in the investigation of professional misconduct by the Bar.
Standards § 7.0.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
235
C. Mental State. “Intent” is the conscious awareness of the nature or attendant
circumstances of the conduct with the intent to cause a particular result. “Knowledge” is the
conscious awareness of the nature or attendant circumstances of the conduct but without the
conscious objective to accomplish a particular result. Standards at 9. Stedman is an attorney
with substantial experience. Stedman is presumed to know the law and the disciplinary rules.
In re Devers, 328 Or 230, 241, 974 P2d 191 (1999) (so stating). The facts deemed to be true in
this matter demonstrate that Stedman acted knowingly and intentionally in all respects. See In
re Phelps, 306 Or 508, 513, 760 P2d 1331 (1988) (lawyer’s mental state can be inferred from
the facts).
Stedman’s neglect and failures to communicate with clients, the court, and the Bar were
all intentional or at least knowing. Stedman was repeatedly prompted by his clients and the
bench about the need to attend to his clients’ legal matters and to communicate with them about
the status of their cases. He knew that he was not doing so. Stedman therefore acted
intentionally when he ignored his clients’ requests for an accounting and refund, and he acted
intentionally to convert, rather than preserve and refund, Husel’s and Barreras’s funds. See In
re Sousa, 323 Or 137, 144, 915 P2d 408 (1996) (“A failure to act can be characterized as
intentional, rather than attributed to mere neglect or procrastination, if the lawyer fails to act
over a significant period of time, despite the urging of the client and the lawyer’s knowledge
of the professional duty to act”). See also In re Loew, 292 Or 806, 810–11, 642 P2d 1171
(1982). Stedman also acted intentionally when he lied to attorney Pedemonte to induce him to
take over Barreras’ languishing defense.
D. Extent of Actual or Potential Injury. For the purposes of determining an
appropriate sanction, both actual and potential injury may be taken into account. Standards at
6; In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). “Injury” is defined as “harm to a
client, the public, the legal system or the profession which results from the lawyer’s
misconduct.” Standards at 9. Because the purpose of attorney discipline is to protect the public,
the Bar need not prove actual injury. Potential injury is sufficient.
Standards § 3.0. Potential injury is harm that is reasonably foreseeable at the time of
the lawyer’s conduct. Standards at 9.
Stedman caused serious injury to his clients because they paid for services not
performed. This is particularly true for clients Husel and Barreras because Stedman knowingly
and dishonestly converted their payments to him.
Stedman caused potential injuries to his clients by failing to account for any of the fees
that he took directly from his clients. See In re Peterson, 348 Or 325, 342–43, 232 P3d 940
(2010) (attorney caused potential economic injury to his clients because his poor accounting
methods jeopardized the security of trust account deposits). By failing to comply with the
written fee agreement and trust account rules, Stedman “caused actual harm to the legal
profession.” See In re Obert, 352 Or 231, 260, 282 P3d 825 (2012).
Cite as In re Stedman, 31 DB Rptr 220 (2017)
236
Stedman’s lack of diligence and lack of communication with his clients caused actual
injury in the form of client anxiety and frustration. See In re Knappenberger I, 337 Or 15, 31–
33, 90 P3d 614 (2004); In re Obert, 336 Or 640, 652, 89 P3d 1173 (2004); In re Cohen II, 330
Or 489, 496, 8 P3d 953 (2000) (Client anxiety and frustration as a result of the attorney neglect
can constitute actual injury under the Standards); In re Schaffner II, 325 Or 421, 426–27, 939
P2d 39 (1997); In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989).
Stedman’s knowing refusal to cooperate during the Bar’s investigation of his conduct
caused actual injury to both the legal profession and to the public by wasting the Bar’s time
and resources, delaying and preventing the bar from fulfilling its responsibility to protect the
public. In re Schaffner II, 325 Or at 426–27; In re Miles, 324 Or 218, 222–23, 923 P2d 1219
(1996); In re Haws, 310 Or at 753–54; see also In re Gastineau, 317 Or 545, 558, 857 P2d
136 (1993) (court concluded that, when a lawyer persists in his failure to respond to the Bar’s
inquiries, the Bar was prejudiced, because the Bar had to investigate in a more time-consuming
way, and the public respect for the Bar was diminished, because the Bar could not provide
timely and informed responses to complaints).
E. Preliminary Sanction. Absent aggravating or mitigating circumstances, the
following Standards apply:
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client
property and causes injury or potential injury to a client.
4.41 Disbarment is generally appropriate when a lawyer:
(a) a lawyer abandons the practice and causes serious or potential serious injury to
a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or
potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes
serious or potentially serious injury to a client.
4.61 Disbarment is generally appropriate when a lawyer knowingly deceives a client
with the intent to benefit the lawyer or another, and cause serious or potentially serious injury
to a client.
5.11 Disbarment is generally appropriate when a lawyer engages in
(a) any other intentional conduct involving dishonesty, fraud, deceit, or misrepre-
sentation that seriously adversely reflects on the layer’s fitness to practice.
6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive
the court, makes a false statement, submits a false document, or improperly withholds material
information, and causes serious or potentially serious injury to a party, or causes significant or
potentially significant adverse effect on the legal proceeding.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
237
6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court
order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a party or causes significant or potentially significant adverse
effect on the legal proceeding.
7.1 Disbarment is generally appropriate when a lawyer knowingly engages in
conduct that is a violation of a duty owed to a professional with the intent to obtain a benefit
for the lawyer or another, and causes serious injury to a client, the public, or the legal system.
F. Aggravating and Mitigating Circumstances. The following factors recog-
nized as aggravating under the Standards exist in this case:
1. Selfish and dishonest motives. Standards § 9.22(b). All of Stedman’s conduct
in these matters is self-serving, and much of it is dishonest. Stedman took unearned money
from his clients and did not subsequently earn it or gain an entitlement to it. Yet, he has refused
to preserve, account for, or return unearned client funds.
2. A pattern of misconduct. Standards § 9.22(c). Stedman’s dishonest scheme
was consistent: He promised to complete legal services for clients in exchange for payment,
but, once paid, Stedman disappeared with the money (to Mexico) and without completing or
advancing his clients’ objectives.
3. Multiple offenses. Standards § 9.22(d). Stedman violated multiple rules
involving duties owed to his client and the profession.
4. Bad-faith obstruction of the disciplinary proceeding. Standards § 9.22(e).
Stedman knowingly failed to provide any information or documentation in response to
disciplinary inquiries and this formal proceeding.
5. Refusal to acknowledge wrongful nature of conduct. Standards § 9.22(g).
Stedman has failed to respond to his clients’ refund demands and he has failed to explain or
account for his conduct.
6. Vulnerable victims. Standards § 9.22(h). Stedman’s clients came to him for
help with their urgent and serious legal issues, and he promised to help them in exchange for
payment.
7. Substantial experience in the practice of law. Standards § 9.22(i). Stedman
has been admitted in Oregon since 2002.
8. Indifference to making restitution. Standards § 9.22(j). Stedman’s failure to
put his clients’ money into a client trust account supports an inference that he intended to
convert their money for his own use. Stedman made no or wholly inadequate efforts to account
for or return his clients’ money.
The sole factor in mitigation is Stedman’s lack of a prior disciplinary record. Standards
§ 9.32(a).
Cite as In re Stedman, 31 DB Rptr 220 (2017)
238
In the aggregate, those factors in aggravation outweigh the only factor in mitigation in
both number and severity, and therefore should adjust the sanction accordingly. The presump-
tion sanction of disbarment is well-supported.
G. Oregon Case Law. Sanctions in disciplinary matters are not intended to
penalize the accused lawyer, but instead are intended to protect the public and the integrity of
the profession. In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998). Appropriate discipline deters
unethical conduct. In re Kirkman, 313 Or 181, 188, 830 P2d 206 (1992).
1. Knowing & dishonest conversion of client funds: Like the Standards, Oregon
case law holds that Stedman’s knowing and dishonest conversion of his clients’ funds is
dispositive of the sanction: disbarment is required to protect the public. The Oregon Supreme
Court has long held that “a single conversion by a lawyer to his own use of his client’s funds
will result in permanent disbarment.” In re Pierson, 280 Or at 518; see also In re Martin, 328
Or at 192 (court disbarred an attorney for spending client money on personal expenses knowing
the money was not yet earned, reiterating that, “A single act of intentional misappropriation of
client funds to the lawyer’s own use: warrants disbarment.)
The court has recently reinforced its adherence to the presumptive sanction of
disbarment for conversion in a case involving conversion of funds from the lawyer’s firm. See
In re Renshaw, 353 Or 411, 427, 298 P3d 1216 (2013). See also In re Whipple, 320 Or at 488;
In re Biggs, 318 Or at 297; In re Benjamin, 312 Or 515, 823 P2d 413 (1991); In re Phelps, 306
Or 508 at 520; In re Laury, 300 Or 65, 76, 706 P2d 935 (1985). Disbarment has resulted even
when the lawyer claimed not to know he was not entitled to the funds, or the conduct was only
negligent because of poor record keeping practices. Severe financial straits, poor accounting
practices, failure to explain adequately what happened to the funds, and other evidence may
prove knowing or intentional misappropriation-conversion. In re Phelps, 306 Or at 516.
Stedman dishonestly converted some or all of Husel’s retainer ($6,500) and his
payment ($5,000) for the supposed civil compromise. Stedman dishonestly converted some or
all of client Barreras’ retainer ($7,500). Stedman’s knowing and dishonest conduct warrants
disbarment.
2. False Statements to Tribunal: RPC 3.3(a); Misrepresentation & Dis-
honesty: RPC 8.4(a)(3) Stedman’s false “implied consent” hearing requests in the Goss matter
were intended to mislead both the Office of Administrative Hearings and those individuals
who Stedman falsely claimed to represent – all because of Stedman’s profit-motive. Worse
still, Stedman refused to correct the false record or explain his dishonest conduct to the
presiding administrative law judge. Stedman lied to client Husel to induce him to pay $5,000
for the supposed civil compromise. Stedman lied to induce attorney Pedemonte to take over
the Barreras matter.
The court has found the “misappropriation of clients’ funds and testifying falsely under
oath are among the most serious charges that can be made against a member of the legal
Cite as In re Stedman, 31 DB Rptr 220 (2017)
239
profession.” In re Sundstrom, 250 Or 404, 409, 442 P2d 604 (1968), receded from in In re
Laury, 300 Or 65, 706 P2d 935 (1985).
Disbarment or a lengthy suspension is justified for such conduct. See In re Paulson IV,
346 Or 676, 722, 216 P3d 859 (2009), adh’d to as modified on recons, 347 Or 529, 225 P3d
41 (2010) (attorney’s collective misconduct warranted disbarment for his “persistent disregard
for the rules of professional conduct and the duties that the accused owes to his clients, the
public, the legal profession, and the legal system”); In re Staar, 324 Or 283, 292–93, 924 P2d
308 (1996); In re Hutchinson, 215 Or 36, 332 P2d 637 (1958).
3. Wholesale Client Abandonment: RPC 1.3; RPC 1.4(a) & (b); RPC 1.15-
1(a); RPC 1.16(d) Stedman’s conduct demonstrates the common theme of client abandonment
for profit. This course of conduct further supports disbarment. In In re Bourcier II, 325 Or at
436–37, the court disbarred a lawyer for neglecting a legal matter and failing to cooperate in a
Bar investigation. Language in Bourcier provides that where a lawyer has been unable to
conform his or her conduct to professional norms over an extended period of time, disbarment
may be the only way to protect the public. See also In re Spies, 316 Or 530, 533, 852 P2d 831
(1993) (lawyer disbarred for a variety of violations demonstrating a steady disintegration of
integrity and competence as well as escalation of poor judgment.
In In re Bridges, 302 Or 250, 728 P2d 863 (1986), the lawyer was found to have
engaged in multiple disciplinary rule violations in multiple matters. In determining that
disbarment was the appropriate sanction, the court considered the big picture and stated:
“No one of the present complaints against the accused would alone require his dis-
barment. The question in disciplinary proceedings, however, is not how heavy a penalty a
lawyer’s professional misconduct deserves (except to demonstrate the gravity of a violation
for purposes of deterrence) but what is needed to protect the public against further unpro-
fessional conduct of a member of the Bar.
The record of the accused’s conduct shows that he cannot be entrusted with the liberty,
property, or other legal interests of people who rely on what his license to practice law
represents.” Id. at 254–55.
4. Failure to Cooperate with disciplinary authority: RPC 8.1(a)(2) Lastly, a
lawyer who cannot or will not respond to disciplinary inquiries undermines the regulatory
system of the court and public confidence in the Bar, alone warranting – at minimum – a
suspension from practice. the Court has adopted a no-tolerance approach in cases where a
lawyer fails to respond to Bar inquiries. See, e.g., In re Miles, 324 Or at 222–24 (lawyer was
suspended for 120 days solely for two failures to fully cooperate with the Bar); In re Hereford,
306 Or 69, 756 P2d 30 (1988).
In all matters, Stedman failed to cooperate and caused the Bar to incur substantial
expense and effort.
Cite as In re Stedman, 31 DB Rptr 220 (2017)
240
CONCLUSION
The purpose of lawyer discipline is to protect the public and the administration of
justice from lawyers who have not discharged, will not discharge, or unlikely to properly
discharge their professional duties. Standards § 1.1. See In re Huffman, 328 Or 567, 587, 983
P2d 534 (1999).
Stedman breached his duties to promptly reply to his clients’ requests for information,
action, their files, and a refund in their matters. Stedman breached his duties to his clients to
preserve their property and act with candor. Stedman’s conduct seriously injured his clients,
the profession and the Bar. Stedman breached his core duty to cooperate in the Bar’s
investigation of his conduct.
In light of the foregoing, Stedman lacks the attributes of honesty and trustworthiness
necessary to practice law. Stedman has not and will not conform his conduct to the required
ethical standards. The Accused, Michael Reuben Stedman, is hereby disbarred from the
practice of law in the State of Oregon.
Dated this 6th day of June, 2017.
/s/ John E. Davis
John E. [Jack] Davis, OSB # 750912
Trial Panel Chairperson
/s/ April L. Sevcik
April L. Sevcik
Trial Panel Member
/s/ Anthony J. Rosilez
Dr. Anthony J. Rosilez
Trial Panel Public Member
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
241
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 15-129
)
STEPHEN R. RASMUSSEN, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: David J. Elkanich
Disciplinary Board: None
Disposition: Violation of RPC 8.4(a)(4). Stipulation for Discipline.
6-month suspension, all but 60 days stayed, 2-year
probation.
Effective Date of Order: September 5, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Stephen R. Rasmussen and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
that Stephen R. Rasmussen is suspended for 6 months, all but 60 days of the suspension stayed
pending successful completion of a 2-year term of probation, for violation of RPC 8.4(a)(4),
effective: September 5, 2017.
DATED this 5 day of September, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
242
STIPULATION FOR DISCIPLINE
Stephen R. Rasmussen, attorney at law (“Rasmussen”), and the Oregon State Bar
(“Bar”) hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Rasmussen was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 22, 1987, and has been a member of the Bar continuously since that time, having
his office and place of business in Multnomah County, Oregon.
3.
Rasmussen enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On May 17, 2016, a Formal Complaint was filed against Rasmussen pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violation of a
RPC 1.7(a)(2) [lawyer’s self-interest conflict]; RPC 3.3(a)(1) [knowing false statement of law
or fact to a tribunal]; RPC 3.4(d) [knowing failure to make reasonably diligent efforts to
comply with a proper discovery request]; RPC 8.4(a)(3) [conduct involving dishonesty or
misrepresentation]; and RPC 8.4(a)(4) [conduct prejudicial to the administration of justice].
The parties intend that this Stipulation for Discipline set forth all relevant facts, violations and
the agreed-upon sanction as a final disposition of the proceeding.
Facts
5.
In 2006, after her child was born with birth asphyxia, Jennifer Penney (“Penney”)
retained attorney Richard Rogers (“Rogers”) to pursue a $35 million medical malpractice claim
against the hospital and her obstetrician, Dr. Michael Rulon (“Dr. Rulon”).
6.
In May 2006, Rogers sent a request for all Penney medical records directly to Dr.
Rulon. Dr. Rulon, without assistance of counsel, responded to the request by producing his
medical chart, but not some of the other records in his possession which were not a part of the
medical chart. Judy Smith (“Smith”), Dr. Rulon’s office manager, signed a certificate stating
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
243
that she was providing “the complete, cover-to-cover chart, including but not limited to all
notes, records, reports and correspondence for the above listed patient at your office(s).”
7.
Beginning in August 2007, Dr. Rulon’s malpractice insurer, MedPro, retained Michael
D. Hoffman (“Hoffman”) and his firm, Hoffman Hart & Wagner (“HHW”), to represent Dr.
Rulon.
8.
On August 16, 2007, Smith faxed Hoffman certain typewritten notes (“typewritten
notes”) taken by Dr. Rulon. These typewritten notes were eventually placed in more than one
of the sub-files within Dr. Rulon’s client file.
9.
Rasmussen later learned that Hoffman had prepared a “Summary of Conference with
Defendant Michael Rulon, M.D.” memorandum. The memorandum referenced and attached
the typewritten notes.
10.
On October 10, 2007, Rogers served Dr. Rulon through HHW with a request for
production in the Penney malpractice matter (“Rogers’s Request for Production”), which
sought, among other things, “all records of any kind, [including] documents which contain
details of Penney’s or her newborn’s care and all statements made by [Penney] regarding the
subject matter of [the] complaint.”
11.
On October 12, 2007, another HHW associate had the Rogers Request for Production
forwarded to Dr. Rulon and instructed Dr. Rulon to provide all responsive documentation
without additional explanation or clarification as to his rights or obligations under the
discovery rules.
12.
After the associate tasked with assisting on this matter left HHW, Rasmussen, a senior
associate with HHW, became responsible for responding to the Rogers Request for Production.
13.
On November 9, 2007, Rasmussen prepared a response to the Rogers Request for
Production, producing a complete copy of Penney’s medical chart. Rasmussen, however, was
not aware that Dr. Rulon had previously provided the typewritten notes to HHW and thus, did
not disclose the existence of or produce Dr. Rulon’s typewritten notes or raise any objection
or claim of privilege to its production. At that time, Rasmussen believed that all responsive,
non-privileged documents were produced.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
244
14.
By February 2008, Dr. Rulon’s typewritten notes came to Rasmussen’s attention and
he and Hoffman discussed whether they should be produced in response to Rogers’ Request
for Production.
15.
On February 18, 2008, Rasmussen reminded Hoffman that they had not produced Dr.
Rulon’s typewritten notes and suggested that they inform Rogers of their existence and, while
they could object to their production, they could agree to submit them to the court for in camera
inspection.
16.
Rasmussen understands that at some point in or around June 25, 2008, Hoffman
informed Rogers that typewritten notes from Dr. Rulon existed and a determination would be
made regarding whether the notes were discoverable.
17.
Between July 28 and August 8, 2008, Rogers sent four letters to HHW, demanding
production of the typewritten notes. Then being in trial, Hoffman did not produce the notes
until August 8, 2008, one business day in advance of the first deposition related to Penney
case. In doing so, Hoffman sent a copy of the typewritten notes to Rogers electing to omit the
fax transmission report at the top of each page identifying Dr. Rulon as the sender and the time
and date of its transmission on August 16, 2007.
18.
When Dr. Rulon was deposed on September 3, 2008, he was extensively questioned by
Rogers’s co-counsel regarding why he had failed to produce the notes until August 2008. Dr.
Rulon did not recall when he had given the notes to HHW, and Hoffman did not assist him in
remembering. Rasmussen was not present at the deposition.
19.
When Dr. Rulon’s deposition resumed on March 12, 2009, he was accused of not only
failing to turn over the typewritten notes until August 2008, but also of lying at the September
2008 deposition. Hoffman would not allow Dr. Rulon to answer as to when he had given the
typewritten notes to Hoffman. Rasmussen was not present at the deposition.
20.
On April 2, 2009, Rogers filed a Motion for Sanctions for Discovery Violations against
Dr. Rulon, alleging that Dr. Rulon had intentionally withheld the typewritten notes until June
of 2008 and that he had lied about having other notes. Rogers sought to strike Dr. Rulon’s
Answer so that a default judgment would be entered against him in the pending lawsuit.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
245
21.
Rasmussen participated in drafting and signed the response to Rogers’ Motion for
Sanctions for Discovery Violations. Prior to filing the response, Rasmussen did not review the
file to determine when the typewritten notes had been received. For that reason, Rasmussen
did not disclose that HHW had possessed the typewritten notes since August 16, 2007 (even
before the lawsuit was filed). Rasmussen was not present and did not participate in the hearing
on Rogers’ Motion for Sanctions for Discovery Violations.
22.
As a result of Rogers’ Motion for Sanctions for Discovery Violations which alleged
that Dr. Rulon had willfully obstructed discovery, served false discovery responses, and
testified perjuriously during his deposition, MedPro advised Dr. Rulon that it reserved the right
to deny insurance coverage. MedPro also advised Dr. Rulon to retain his own attorney at his
own cost. In spring 2009, Dr. Rulon hired attorney, Kelly Andersen (“Andersen”).
23.
On or about May 18, 2009, Rasmussen reviewed the file and was reminded that HHW
had received the typewritten notes in August 2007. HHW then prepared a Supplemental
Affidavit of Michael D. Hoffman in Support of the Rulon Defendants’ Response to Plaintiff’s
Motion for Sanctions that stated: “the delay which occurred prior to the June 25, 2008
notification to plaintiffs’ counsel of the existence of the four pages of Dr. Rulon’s personal
notes, which were produced on August 8, 2008, is the sole responsibility of Dr. Rulon’s
attorneys, Hoffman, Hart & Wagner, and not of Dr. Rulon.” However, HHW did not notify
Rogers when they had received the documents from Dr. Rulon. After Andersen conveyed to
Rogers that HHW had received the documents from Dr. Rulon in August 2007, Rogers
subsequently dismissed his Motion for Sanctions.
Violations
24.
Rasmussen admits that, not addressing Dr. Rulon’s typewritten notes in the response
to the Rogers Request for Production, as well as in the response to Rogers’s Motion for
Sanctions, which failed to reveal Dr. Rulon’s earlier delivery of the typewritten notes,
constitutes conduct prejudicial to the administration of justice, in violation of RPC 8.4(a)(4).
25.
Upon further factual inquiry, the parties agree that the charges of alleged violations of
RPC 1.7(a)(2); RPC 3.3(a)(1); RPC 3.4(d); and RPC 8.4(a)(3) should be and, upon the approval
of this stipulation, are dismissed.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
246
Sanction
26.
Rasmussen and the Bar agree that, in fashioning an appropriate sanction in this case,
the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Rasmussen’s conduct be analyzed by considering
the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual
or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Rasmussen violated his duty to the legal system to avoid abuse
of the legal process. Standards § 6.2.
b. Mental State. Negligence is the failure of a lawyer to heed a substantial risk
that circumstances exist or that a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would exercise in the
situation. Id. Rasmussen acted both negligently and knowingly.
c. Injury. An injury need not be actual, but only potential, to support the
imposition of a sanction. Standards at 6; In re Williams, 314 Or 530, 547, 840
P2d 1280 (1992). In this matter, there was actual injury to Dr. Rulon in terms
of fear, anxiety, and unnecessary damage to his reputation. There was also some
actual injury in that the court was not provided with complete information.
There was also significant potential injury to the extent that sanctions may have
been imposed against Dr. Rulon and/or he would have lost coverage from
MedPro if the source of the delay in producing the typewritten notes had not
been disclosed or if HHW’s response to Rogers’ Motion for Sanctions for
Discovery Violations had been left unchallenged.
d. Aggravating Circumstances. Aggravating circumstances include:
1. In this circumstance and given his dependency on his lawyers to be
aware and forthright with what he had provided to them, Dr. Rulon was
a vulnerable victim. Standards § 9.22(h).
2. Rasmussen has substantial experience in the practice of law, having
been admitted in Oregon in 1987. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Full and free disclosure and cooperation in the disciplinary proceedings.
Standards § 9.32(e).
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
247
3. Character and reputation. Standards § 9.32(g). Rasmussen provided
multiple letters of support from attorneys in the legal community
attesting to his good character and fitness as a lawyer.
4. Remorse. Standards § 9.32(l).
27.
Under the ABA Standards, a suspension is generally appropriate when a lawyer knows,
as contemplated by the Standards, that he is violating a rule of the court and causes interference
or potential interference with a legal proceeding. Standards § 6.22. Taking into account all of
the considerations under the Standards, a suspension is appropriate for Rasmussen’s misonduct
in this matter.
28.
Oregon cases have likewise imposed some period of suspension where lawyers have
engaged in a pattern of conduct that has adversely impacted the procedural functioning of the
court or a matter. See, e.g., In re Krueger, 29 DB Rptr 273 (2015) (Respondent was suspended
for 6 months, partially stayed, when he prematurely removed a portion of his client’s settlement
funds from trust for his anticipated attorney fees prior to obtaining the statutorily required court
approval. Respondent’s handling of the settlement funds, as well as his subsequent
misstatements and omissions to the court and the Bar about his handling of the funds, were
acts that potentially harmed the administration of justice.); In re Kinney, 28 DB Rptr 59 (2014)
(Respondent was suspended for one year, partially stayed, when he allowed his personal bank-
ruptcy petition to be filed containing incomplete and inaccurate information and thereafter
affirmed the accuracy of the information under oath, without having thoroughly reviewed the
documents and without having verified the that information was correct.); In re Tank, 28 DB
Rptr 35 (2014) (Respondent suspended for 90 days where she represented a corporation on
matters related to its corporate records. Because the corporation did not have complete records,
some were drafted by an associate in respondent’s firm and purported to memorialize corporate
records, events and actions dating back 20 years. In litigation a few months later, where an
issue was ownership and control of the corporation, respondent stated or implied in open court
that the corporate records were prepared well before the litigation began, and failed to explain
or clarify that representation); In re Hudson, 27 DB Rptr 226 (2013) (In connection with a bar
investigation, fee arbitration, and civil proceedings brought by his former client, respondent
separately submitted documents and made statements that materially misrepresented the true
facts regarding the client’s claims and their timing with respect to the attorney-client relation-
ship, intending that these false statements and documentation be relied upon by the bar, the
arbitrator, and the court in their respective evaluations of his former client’s claims. Respon-
dent was suspended for two years, partially stayed.); In re Hall, 27 DB Rptr 93 (2013)
(Respondent was suspended for 150 days where he failed to file accountings, notwithstanding
court notices, or respond to a citation for removal. When he failed to appear for the show cause
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
248
hearing, his personal representative client was removed from her husband’s estate. Respondent
thereafter failed to respond to numerous attempts to contact him by the replacement personal
representative. Respondent’s actions burdened the court to issue unnecessary orders and hold
unnecessary hearings.); In re Daum, 24 DB Rptr 199 (2010) (Respondent suspended for 120
days where he failed to file a client’s bankruptcy petition timely, failed to correct errors in the
petition and schedules called to his attention by the client, and incorrectly dealt with a student
stipend and debt reaffirmation. He also instructed the client to sign the signature page of the
petition for herself and her husband, under penalty of perjury, without reviewing the petition
or its schedules, and inflated the amount of monthly expenses claimed in the petition to ensure
the clients would qualify for a Chapter 7 discharge.); In re Trunnell, 22 DB Rptr 150 (2008)
(While representing a bankruptcy trustee, attorney failed to pursue or pursue timely, numerous
claims against debtors in contested bankruptcy matters, resulting in diminished value to the
estates. Attorney’s delays required the court to issue various notices and schedule hearings that
would not have otherwise been necessary, and resulted in 4-month suspension.); In re
Sunderland, 21 DB Rptr 257 (2007) (Respondent was suspended for one year for his repre-
sentation of a client in a dissolution while the client’s bankruptcy proceeding was simul-
taneously pending. Attorney obtained an ex parte judgment in the dissolution case awarding
to attorney’s client funds that attorney knew had not been disclosed in the bankruptcy petition.
Thereafter, attorney attempted to collect the funds without disclosing to the state court the
circumstances of the bankruptcy. Nor did attorney disclose the existence of these funds to the
bankruptcy court or trustee. In another matter, attorney learned after filing a bankruptcy
petition for his clients that they would be receiving tax refunds that had not been disclosed in
the petition. Through an associate, attorney advised his clients not to appear for the first
meeting of creditors, which attorney surmised would lead to the dismissal of the bankruptcy
and permit his clients to spend the refunds without disclosure to the court.).
29.
BR 6.2 recognizes that probation can be appropriate and permits a suspension to be
stayed pending the successful completion of a probation. See also Standards § 2.7 (probation
can be imposed alone or with a suspension and is an appropriate sanction for conduct which
may be corrected). In addition to a period of suspension, a period of probation designed to
ensure the adoption and continuation of better practices will best serve the purpose of
protecting clients, the public, and the legal system.
30.
Consistent with the Standards and Oregon case law, the parties agree that Rasmussen
shall be suspended for six (6) months for his violation of RPC 8.4(a)(4), with all but sixty (60)
days of the suspension stayed, pending Rasmussen’s successful completion of a two (2)-year
term of probation. The sanction shall be effective September 1, 2017, or as otherwise directed
by the Disciplinary Board.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
249
31.
Rasmussen’s license to practice law shall be suspended for a period of sixty (60) days
beginning September 1, 2017, or as otherwise directed by the Disciplinary Board (“actual sus-
pension”), assuming all conditions have been met. Rasmussen understands that reinstatement
is not automatic and that he cannot resume the practice of law until he has taken all steps
necessary to reattain active membership status with the Bar. During the period of actual
suspension, and continuing through the date upon which Rasmussen reattains his active
membership status with the Bar, Rasmussen shall not practice law or represent that he is
qualified to practice law; shall not hold himself out as a lawyer; and shall not charge or collect
fees for the delivery of legal services as an attorney other than for work performed and
completed prior to the period of active suspension.
32.
Probation shall commence upon the date Rasmussen is reinstated to active membership
status and shall continue for a period of two (2) years, ending on the day prior to the second
(2nd) year anniversary of the commencement date (the “period of probation”). During the
period of probation, Rasmussen shall abide by the following conditions:
(a) Rasmussen shall comply with all provisions of this Stipulation for Discipline,
the Rules of Professional Conduct applicable to Oregon lawyers, and ORS
Chapter 9.
(b) Within seven (7) days of his reinstatement date, Rasmussen shall contact the
Professional Liability Fund (PLF) and schedule an appointment on the soonest
date available to consult with PLF practice management advisors in order to
obtain practice management advice and notify the Bar of the time and date of
the appointment.
(c) Rasmussen shall attend the appointment with a PLF practice management
advisor and seek advice and assistance regarding procedures for diligently pur-
suing client matters, communicating with clients, effectively managing a client
caseload and taking reasonable steps to protect clients upon the termination of
his employment. No later than thirty (30) days after recommendations are made
by the PLF, Rasmussen shall adopt and implement those recommendations.
(d) No later than sixty (60) days after recommendations are made by the PLF,
Rasmussen shall provide a copy of the Office Practice Assessment from the
PLF and file a report with Disciplinary Counsel’s Office stating the date of his
consultation(s) with the PLF; identifying the recommendations that he has
adopted and implemented; and identifying the specific recommendations he has
not implemented and explaining why he has not adopted and implemented those
recommendations.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
250
(e) At least six (6) months and no later than nine (9) months after Rasmussen’s
appointment with a PLF practice management advisor, Rasmussen shall arrange
for and attend a follow-up appointment with a PLF practice management
advisor to review the Office Practice Assessment and modify the assessment as
necessary to reflect additional or different recommendations regarding pro-
cedures for diligently pursuing client matters, communicating with clients,
effectively managing a client caseload and taking reasonable steps to protect
clients upon the termination of his employment. No later than thirty (30) days
after the follow-up recommendations are made by the PLF, Rasmussen shall
adopt and implement those recommendations.
(f) No later than sixty (60) days after any follow-up recommendations are made by
the PLF, Rasmussen shall provide a copy of the revised Office Practice
Assessment from the PLF and file a report with Disciplinary Counsel’s Office
stating the date of his follow-up consultation(s) with the PLF; identifying the
recommendations that he has adopted and implemented; and identifying the
specific recommendations he has not implemented and explaining why he has
not adopted and implemented those recommendations.
(g) Matthew George Ukishima shall serve as Rasmussen’s probation supervisor
(“Supervisor”). Rasmussen shall cooperate and comply with all reasonable
requests made by Supervisor that Supervisor, in his or her sole discretion,
determines are designed to achieve the purpose of the probation and the
protection of Rasmussen’s clients, the profession, the legal system, and the
public. Beginning with the first month of the period of probation, Rasmussen
shall meet with Supervisor in person at least once a month for the purpose of
reviewing the status of Rasmussen’s law practice and his performance of legal
services on the behalf of clients. Each month during the period of probation,
Supervisor shall conduct a random audit of ten (10) files or ten percent (10%)
of his active files, whichever is greater, to determine whether Rasmussen is
timely, competently, diligently, and ethically attending to matters, properly
identifying and addressing conflicts of interest, adequately communicating with
clients, and taking reasonably practicable steps to protect his clients’ interests
upon the termination of employment.
(h) During the period of probation, Rasmussen shall attend not less than eight (8)
MCLE accredited programs, for a total of twenty-four (24) hours, which shall
emphasize law practice management, time management, conflicts of interest,
discovery and trial skills, and client communications. These credit hours shall
be in addition to those MCLE credit hours required of Rasmussen for his normal
MCLE reporting period. The Ethics School requirement does not count towards
the twenty-four (24) hours needed.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
251
(i) Upon completion of the MCLE programs described in paragraph 34(h), and no
later than ten (10) days before the end of the period of probation, Rasmussen
shall submit an Affidavit of Compliance to Disciplinary Counsel’s Office.
(j) On a quarterly basis, on dates to be established by Disciplinary Counsel
beginning no later than ninety (90) days after his reinstatement to active
membership status, Rasmussen shall submit to Disciplinary Counsel’s Office a
written “Compliance Report,” approved as to substance by Supervisor, advising
whether Rasmussen is in compliance with the terms of this agreement. In the
event that Rasmussen has not complied with any term of the agreement, the
Compliance Report shall describe the non-compliance and the reason for it.
(k) Rasmussen authorizes Supervisor to communicate with Disciplinary Counsel
regarding his compliance or non-compliance with the terms of this agreement,
and to release to Disciplinary Counsel any information necessary to permit
Disciplinary Counsel to assess Rasmussen’s compliance.
(l) Rasmussen is responsible for any costs required under the terms of this
stipulation and the terms of probation.
(m) Rasmussen’s failure to comply with any term of this agreement, including
conditions of timely and truthfully reporting to Disciplinary Counsel’s Office,
or with any reasonable request of Supervisor, shall constitute a basis for the
revocation of probation and imposition of the stayed portion of the suspension.
(n) A Compliance Report is timely if it is emailed, mailed, faxed, or delivered to
Disciplinary Counsel on or before its due date.
(o) The SPRB’s decision to bring a formal complaint against Rasmussen for
unethical conduct not addressed in this stipulation shall also constitute a basis
for revocation of the probation and imposition of the stayed portion of the
suspension.
33.
Rasmussen acknowledges that he has certain duties and responsibilities under the Rules
of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid
foreseeable prejudice to his clients during the term of his suspension. In this regard, Rasmussen
has arranged for Matthew Ukishima, Bruce Gilbert, Ryan McLellan and Cliff Wilson, active
members of the Bar, to either take possession of or have ongoing access to Rasmussen’s client
files and serve as the contact person for clients in need of the files during the term of his
suspension. Rasmussen represents that these individuals have agreed to accept this respon-
sibility.
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
252
34.
Rasmussen acknowledges that reinstatement is not automatic on expiration of the
period of suspension. He is required to comply with the applicable provisions of Title 8 of the
Bar Rules of Procedure. Rasmussen also acknowledges that he cannot hold himself out as an
active member of the Bar or provide legal services or advice until he is notified that his license
to practice has been reinstated.
35.
Rasmussen acknowledges that he is subject to the “Ethics School” requirement set forth
in BR 6.4 and that a failure to complete the requirement timely under that rule may result in
his suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Rasmussen to attend or obtain continuing legal
education (CLE) credit hours.
36.
Rasmussen represents that, in addition to Oregon, he also is admitted to practice law in
the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Rasmussen is admitted:
Washington, California.
37.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 10th day of August, 2017.
/s/ Stephen R. Rasmussen
Stephen R. Rasmussen
OSB No. 871480
AS TO FORM AND CONTENT:
/s/ David J. Elkanich
David J. Elkanich
OSB No. 992558
Counsel for the Accused
Cite as In re Rasmussen, 31 DB Rptr 241 (2017)
253
EXECUTED this 15th day of August, 2017.
OREGON STATE BAR
By: /s/ Amber Bevacqua-Lynott
Amber Bevacqua-Lynott
OSB No. 990280
Chief Assistant Disciplinary Counsel
Cite as In re Castle, 31 DB Rptr 254 (2017)
254
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 17-03 & 17-04
)
LAWRENCE A. CASTLE, )
)
Accused. )
Counsel for the Bar: Theodore W. Reuter
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 1.3; RPC 1.4(a), and RPC 1.4(b).
Stipulation for discipline. Public Reprimand.
Effective Date of Order: September 5, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Lawrence A. Castle and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Lawrence A. Castle is publicly reprimanded for violation of RPC 1.3, RPC 1.4(a), and RPC
1.4(b) in Case No. 17-03 and RPC 1.3 in Case No. 17-04.
DATED this 5th day of September, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Andrew M. Cole
Andrew M. Cole, Region 7
Disciplinary Board Chairperson
Cite as In re Castle, 31 DB Rptr 254 (2017)
255
STIPULATION FOR DISCIPLINE
Lawrence A. Castle, attorney at law (“Castle”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Castle was admitted by the Oregon Supreme Court to the practice of law in Oregon on
September 20, 1985, and has been a member of the Bar continuously since that time, having
his office and place of business in Clackamas County, Oregon.
3.
Castle enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On February 25, 2017, the State Professional Responsibility Board (“SPRB”) author-
ized formal disciplinary proceedings against Castle for alleged violations of the Oregon Rules
of Professional Conduct (“RPC”) 1.3 [neglect of a legal matter], RPC 1.4(a) [failure to keep a
client reasonably informed about the status of a matter] and RPC 1.4(b) [failure to explain a
matter to permit a client to make informed decisions regarding the representation] in Case No.
17-03 and RPC 1.3 [neglect of a legal matter] in Case No. 17-04. The parties intend that this
stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final
disposition of this proceeding.
Case No. 17-03
Nizer Matter
Facts
5.
In 2011, a client hired Castle to help him assert a guardianship and conservatorship
over his mother. Although client’s father objected to his appointment, the court appointed the
client guardian and conservator for his mother in January 2012, and entered an order requiring
the filing of annual reports regarding the management of the conservatorship property. The
judgment also required funds belonging to the protected person to be deposited and maintained
in an account in her name. Castle remained attorney of record in the court’s file. When client
failed to timely file the 2013 annual report, the court contacted Castle. Castle, in turn, contacted
Cite as In re Castle, 31 DB Rptr 254 (2017)
256
client, whom he helped to file the annual report. In 2014, Castle assisted client in selling his
mother’s home, which led to a significant influx of cash into the conservatorship. Castle again
reminded Nizer that he would have to file annual reports, which he could do on his own (to
save money), unless he wanted attorney assistance.
6.
In March 2015, the court notified Castle that the current annual report was due.
Although he took no action to file the report, he did call client and also left a message after
receiving a second notice from the court in April.
7.
In May, the court noticed Castle for a July hearing scheduled in response to the failure
to file an annual report. Castle took no action and did not appear at the hearing. The Court then
sent Castle two additional letters, one in August and one in September, notifying him that he
would be reported to the Oregon State Bar if he did not take action. The August letter was
copied to the client. Shortly thereafter, the client left a message for Castle that he was hiring
another attorney and then, without Castle’s assistance, filed a guardianship report and hired a
new attorney to act as his legal counsel in relation to his mother’s guardianship.
Violations
8.
Castle admits that, by failing to inform his client of the court notices he received and
failing to take any action to address the Court’s concerns, he violated RPC 1.3, RPC 1.4(a),
and RPC 1.4(b).
Case No. 17-04
Richkind Matter
Facts
9.
Steven Richkind (“Richkind”) was representing the husband in a divorce matter in
which Castle was representing the wife. The parties and their attorneys met in late July 2015
for a settlement conference, which successfully settled all of the issues. Castle offered to draft
the stipulated judgment. When the matter was reported as settled the following day, the court
set a 30-day deadline for submission of the stipulated judgment.
10.
Castle did not draft the judgment by the deadline set by the court. Approximately 30
days after the initial deadline had passed, Richkind reached out to Castle and reminded him of
his obligation to draft the judgment. Although Castle affirmed that he would take prompt
action, he did not do so. Castle sought assistance from Richkind in completing the judgment,
Cite as In re Castle, 31 DB Rptr 254 (2017)
257
but Richkind declined, reportedly because he had not made sufficient notes, had not been paid,
and had lost contact with his client. A little more than a week later, the court dismissed the
case.
Violations
11.
Castle admits that, by failing to timely complete the judgment and submit it to the court,
he violated RPC 1.3.
Sanction
12.
Castle and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Castle’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Castle violated his duty of diligence in the above cases.
b. Mental State. Castle’s conduct in the above matters was knowing. The
Standards define “knowledge” as “…the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result.” Castle knew of the circumstances
that made his conduct wrongful, but did not intend to harm his client’s interests.
c. Injury. Castle’s conduct as to both clients required them to hire other counsel
to remedy what Castle had failed to do, resulting in emotional and financial
costs to both clients.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Multiple Offenses. Standards § 9.22(d).
2. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of prior disciplinary record. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
3. Full and free disclosure to disciplinary counsel. Standards § 9.32(e).
4. Remorse. Standards § 9.32(l).
Cite as In re Castle, 31 DB Rptr 254 (2017)
258
13.
Under the ABA Standards, reprimand is generally appropriate when a lawyer is negli-
gent and does not act with reasonable diligence in representing a client, and causes injury or
potential injury to a client. Standards § 4.43. A suspension is generally appropriate when a
lawyer knowingly fails to perform services for a client and causes injury or potential injury to
a client, or a lawyer engages in a pattern of neglect and causes injury or potential injury to a
client. Standards § 4.42. Absent mitigation, Castle’s conduct would warrant a suspension.
However, the parties agree that, in this case, the mitigating factors outweigh aggravating
factors, making a reprimand appropriate.
14.
The Disciplinary Board has approved stipulated reprimands for similar conduct in the
past. See In re Koenig, 28 DB Rptr 301 (2014) (Attorney stipulated to a reprimand where he
failed for several months to take action on client’s criminal appeal or to communicate
important events, including the dismissal of the appeal); In re Kleen, 27 DB Rptr 213 (2013)
(Attorney stipulated to reprimand after failing to communicate to client that he would not take
further action on client’s case given that he had determined it would be difficult to prove); In
re May, 27 DB Rptr 200 (2013). (Attorney stipulated to reprimand after she and her partner
undertook to represent petitioner in a divorce proceeding, but failed to take any substantive
action to advance the matter for nearly a year.); In re Bryant, 25 DB Rptr 167 (2011).(Attorney
stipulated to reprimand where, in a child support modification matter, attorney failed to file
timely a request for a hearing disputing a proposed administrative order; failed to communicate
a settlement proposal to his client or respond to the proposal; failed to appeal the order; and
failed to respond to the client’s requests for information.)
15.
Consistent with the Standards and Oregon case law, the parties agree that Castle shall
be publicly reprimanded for violation of RPC 1.3, RPC 1.4(a), and RPC 1.4(b) in Case No. 17-
03, and for violation of RPC 1.3 in Case No. 17-04, the sanction to be effective immediately.
16.
Castle acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension. This requirement is in addition to any other provision of this agreement that
requires Castle to attend or obtain continuing legal education (CLE) credit hours.
17.
Castle represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Castle is admitted: None.
Cite as In re Castle, 31 DB Rptr 254 (2017)
259
18.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 20th day of July, 2017.
/s/ Lawrence A. Castle
Lawrence A. Castle
OSB No. 851680
EXECUTED this 26th day of July, 2017.
OREGON STATE BAR
By: /s/ Theodore W. Reuter
Theodore W. Reuter, OSB No. 084529
Assistant Disciplinary Counsel
Cite as In re Ryan, 31 DB Rptr 260 (2017)
260
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 15-108, 16-96, 16-97 &
) 16-98
TOMAS FINNEGAN RYAN, )
)
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: David J. Elkanich
Disciplinary Board: None.
Disposition: Violation of RPC 1.15-1(a), RPC 1.15-1(b), and RPC
1.15-1(c). Stipulation for Discipline. 60-day
suspension.
Effective Date of Order: September 7, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Tomas Finnegan Ryan and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Tomas Finnegan Ryan is suspended for 60 days, effective two days after this order is signed,
for violations of RPC 1.15-1(a), RPC 1.15-1(b), and RPC 1.15-1(c).
DATED this 5th day of September, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Ryan, 31 DB Rptr 260 (2017)
261
STIPULATION FOR DISCIPLINE
Tomas Finnegan Ryan, attorney at law (“Ryan”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Ryan was admitted by the Oregon Supreme Court to the practice of law in Oregon on
April 21, 1976, and has been a member of the Bar continuously since that time, having his
office and place of business in Multnomah County, Oregon.
3.
Ryan enters into this Stipulation for Discipline freely, voluntarily, and with the advice
of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On December 20, 2016, a Formal Complaint was filed against Ryan pursuant to the
authorization of the State Professional Responsibility Board (“SPRB”), alleging violation of
RPC 1.15-1(a) [failure to hold client funds separate from a lawyer’s own funds in a lawyer
trust account and maintain complete records regarding such client funds]; RPC 1.15-1(b) [the
deposit of lawyer funds into a lawyer trust account for reasons other than bank service charge
or minimum balance requirements]; and RPC 1.15-1(c) [failure to deposit and maintain client
funds in trust until earned]. The parties intend that this Stipulation for Discipline set forth all
relevant facts, violations and the agreed-upon sanction as a final disposition of the proceeding.
General Facts
5.
At all relevant times herein, Ryan was the managing shareholder of his law office and
had control and custody over the firm’s IOLTA lawyer trust accounts maintained at Wells
Fargo Bank (“Ryan IOLTA Account”) and Albina Bank.
Cite as In re Ryan, 31 DB Rptr 260 (2017)
262
Case No. 15-108
May 2015 Overdraft
Facts
6.
On May 5, 2015, Ryan sent a check to an investigator on behalf of a client in the amount
of $144.41. Ryan miscalculated the funds the client had available in the Ryan IOLTA Account.
The check was negotiated on May 15, 2015, and overdrew the Ryan IOLTA Account by $1.72.
7.
On June 16, 2015, and at Ryan’s direction, a former client of Ryan’s deposited $2,000
into the Ryan IOLTA Account as payment towards an owed bill. At the time of this deposit,
Ryan was unaware of the May overdraft and that his account had a negative balance. The bank
made $200 of the deposit available immediately, but placed a hold on the remaining $1,800.
8.
On the same day that the former client deposited funds into the Ryan IOLTA Account,
Ryan wrote a check to himself for the full $2,000 amount. At the time, he only had $198.28
present and available in the Ryan IOLTA Account. This withdrawal caused the Ryan IOLTA
Account to be overdrawn a second time.
9.
On June 17, 2015, Ryan deposited $3 of his own money into the Ryan IOLTA Account
to correct the May overdraft imbalance and bring the trust account to a positive balance.
Violations
10.
Ryan admits that his conduct of twice depositing his own funds into a lawyer trust
account for reasons other than bank service charge or minimum balance requirements violated
RPC 1.15-1(b).
Case No. 16-96
March 2016 Overdraft
Facts
11.
On and prior to March 28, 2016, Ryan held funds for two clients (Client R and Client
W) in the Ryan IOLTA Account.
Cite as In re Ryan, 31 DB Rptr 260 (2017)
263
12.
On March 28, 2016, Ryan wrote a check for $3,500 to Client R from the Ryan IOLTA
Account—the amount which Ryan’s client ledger indicated should have been on hand for
Client R. At the time that Client R negotiated the check, there were insufficient funds in the
Ryan IOLTA Account to cover the check. The check was honored by the bank, which drew on
the remaining Client R funds and any Client W funds, and overdrew the Ryan IOLTA Account
by $103.61. Wells Fargo charged a $35 overdraft fee to the Ryan IOLTA Account.
Violations
13.
Ryan admits that his failure to safeguard and hold both Client R’s and Client W’s funds
separate from his own funds in a lawyer trust account, to maintain complete records regarding
such client funds; and to maintain them in trust until earned, violated RPC 1.15-1(a) and RPC
1.15-1(c).
Case No. 16-97
April 1, 2016 Overdraft
Facts
14.
On April 1, 2016, a check for $2,000 payable to Ryan was presented for payment from
the Ryan IOLTA Account against a negative balance. The check represented fees Ryan
believed he earned in his representation of Client R but Client R’s funds were no longer in the
Ryan IOLTA Account. The bank did not honor the check, and charged an additional $35
overdraft fee to the Ryan IOLTA account.
Violations
15.
Ryan admits that his failure to safeguard and hold Client R’s funds separate from his
own funds in a lawyer trust account, to maintain complete records regarding such client funds;
and to maintain them in trust until earned, violated RPC 1.15-1(a) and RPC 1.15-1(c).
Case No. 16-97
April 6, 2016 Overdraft
Facts
16.
On April 6, 2016, a second attempt was made to negotiate the $2,000 check payable to
Ryan for Client R’s fees from the Ryan IOLTA Account against a negative balance. Wells
Fargo again did not honor the check, and charged a third $35 overdraft fee to the account.
Cite as In re Ryan, 31 DB Rptr 260 (2017)
264
17.
On April 19, 2016, Ryan deposited $210 of his own funds into the Ryan IOLTA
Account to cover the overdraft and $105 in overdraft fees.
Violations
18.
Ryan admits that the deposit of his own funds into a lawyer trust account for reasons
other than bank service charge or minimum balance requirements violated RPC 1.15-1(b).
Sanction
19.
Ryan and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Ryan’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Ryan violated his duty to his clients to safeguard client
property. Standards § 4.1. The Standards provide that the most important
ethical duties are those which lawyers owe to clients. Standards at 5.
b. Mental State. Negligence is the failure of a lawyer to heed a substantial risk
that circumstances exist or that a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would exercise in the
situation. Standards at 9. Knowledge is the conscious awareness of the nature
or attendant circumstances of the conduct but without the conscious objective
or purpose to accomplish a particular result. Id. Although Ryan’s initial over-
draft was negligent, he was alerted to deficiencies in his practices such that he
at least should have known by the time of his subsequent overdrafts that he was
not properly handling client funds.
c. Injury. Injury can be actual or potential. Standards at 6; In re Williams, 314 Or
530, 547, 840 P2d 1280 (1992). Ryan’s clients were potentially injured to the
extent that their funds may not have been available when needed.
d. Aggravating Circumstances. Aggravating circumstances include:
1. A pattern of misconduct. Standards § 9.22(c).
2. Multiple offenses. Standards § 9.22(d).
3. Substantial experience in the practice of law. Standards § 9.22(i).
Cite as In re Ryan, 31 DB Rptr 260 (2017)
265
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Cooperation with the Bar in its investigation of Ryan’s conduct and in
the disciplinary proceeding. Standards § 9.32(e).
3. Remorse. Standards § 9.32(l).
20.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12. Ryan’s aggravating and mitigating factors are in equipoise
and therefore have no impact on the presumptive sanction.
21.
Oregon cases similarly provide that a short suspension is appropriate for an experienced
lawyer who mishandles his trust account. See In re Eakin, 334 Or 238, 258–59, 48 P3d 147
(2002) (so stating and imposing 60-day suspension); see also, e.g., In re Lafky, 25 DB Rptr
134 (2011) (four-month suspension where attorney’s practice of depositing settlement checks
in his trust account and drawing on the proceeds the same day without ascertaining whether
the funds had cleared the banking process and were available resulted in the funds of others
clients being withdrawn from the account; attorney also failed to deposit all client funds in
trust, withdrew funds from trust before they were earned, failed to maintain complete trust
records and left more of his own funds in trust than was necessary to pay bank charges); In re
Vanagas, 23 DB Rptr 165 (2009) (60-day suspension for lawyer who, in two unrelated matters,
failed to deposit fees in trust that were not designated in his fee agreements as earned on receipt
and nonrefundable); In re Eckrem, 23 DB Rptr 84 (2009) (attorney suspended 60 days where
he collected a flat fee in payment for an adoption and a retainer in another client matter, and
did not deposit either client’s funds in a trust account); In re Boehmer, 23 DB Rptr 19 (2009)
(attorney suspended for 60 days where she failed to maintain adequate or accurate trust account
records resulting in attorney issuing checks on insufficient funds).
22.
Consistent with the Standards and Oregon case law, the parties agree that Ryan shall
be suspended for 60 days for his violations of RPC 1.15-1(a); RPC 1.15-1(b); and RPC 1.15-
1(c), the sanction to be effective August 14, 2017 or two (2) days after approval by the
Disciplinary Board, whichever is later.
23.
Ryan acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. In this regard, Ryan has arranged for
Cite as In re Ryan, 31 DB Rptr 260 (2017)
266
Robert E. Martin, of Portland, Oregon (OSB No. 711132), an active pro bono member of the
Bar, to either take possession of or have ongoing access to Ryan’s client files and serve as the
contact person for clients in need of the files during the term of his suspension. Ryan represents
that Robert E. Martin has agreed to accept this responsibility.
24.
Ryan acknowledges that reinstatement is not automatic on expiration of the period of
suspension. He is required to comply with the applicable provisions of Title 8 of the Bar Rules
of Procedure. Ryan also acknowledges that he cannot hold himself out as an active member of
the Bar or provide legal services or advice until he is notified that his license to practice has
been reinstated.
25.
Ryan acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement.
26.
Ryan represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Ryan is admitted: none.
27.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 16th day of August, 2017.
/s/ Tomas Finnegan Ryan
Tomas Finnegan Ryan
OSB No. 760274
APPROVED AS TO FORM AND CONTENT:
/s/ David J. Elkanich
David J. Elkanich
OSB No. 992558
Cite as In re Ryan, 31 DB Rptr 260 (2017)
267
EXECUTED this 17th day of August, 2017.
OREGON STATE BAR
By: /s/ Amber Bevacqua-Lynott
Amber Bevacqua-Lynott
OSB No. 990280
Chief Assistant Disciplinary Counsel
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
268
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 17-53
)
ERIC J. FJELSTAD, )
)
Accused. )
Counsel for the Bar: Dawn M. Evans
Counsel for the Accused: None.
Disciplinary Board: None.
Disposition: Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC
1.16(a)(2), and RPC 1.16(d). Stipulation for Discipline.
60-day suspension.
Effective Date of Order: October 20, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by Eric
J. Fjelstad and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Eric J. Fjelstad is suspended for 60 days, effective seven (7) days following Disciplinary Board
approval, for violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC 1.16(a)(2), and RPC 1.16(d).
DATED this 13th day of October, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
269
STIPULATION FOR DISCIPLINE
Eric J. Fjelstad, attorney at law (“Fjelstad”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Fjelstad was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 15, 1989, and has been a member of the Bar continuously since that time, having
his office and place of business in Multnomah County, Oregon.
3.
Fjelstad enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On July 15, 2017, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Fjelstad for alleged violations of RPC 1.1 [lack of
competent representation]; RPC 1.3 [neglect of a legal matter]; RPC 1.4(a) [failure to keep a
client reasonably informed about the status of a matter]; RPC 1.16(a)(2) [failure to withdraw
from representation when required by physical or mental condition]; and RPC 1.16(d) [failure
to take steps to protect client interests upon withdrawal, including return of client property] of
the Oregon Rules of Professional Conduct. The parties intend that this stipulation set forth all
relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
In November 2015, Kryn Carlstrom (“Carstrom”) hired Fjelstad to represent her in an
unpaid wage claim against her former employer, paying him a $75 consultation fee.
6.
Fjelstad sent two demand letters to Carlstrom’s former employer and filed suit on her
behalf, seeking past wages based upon the employer’s failure to pay Carlstrom the statutory
minimum wage and seeking both penalty wages and attorney’s fees. The defendant defaulted
after service.
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
270
7.
Fjelstad did not understand how to electronically submit a proposed judgment and
admitted as much to Carlstrom.
8.
At a point in the representation, Fjelstad became unresponsive to Carlstrom’s requests
for status updates. Fjelstad also disregarded several communications from the court, seeking
his submission of a proposed judgment and the filing of a service members civil relief act status
form. Ultimately, Fjelstad failed to take the steps necessary to obtain a judgment, as a result of
which Carlstrom’s lawsuit was dismissed without prejudice for want of prosecution.
9.
Fjelstad transferred to inactive status in January 2017 due to an unspecified medical
condition that had been impacting his ability to practice law. However, he did not withdraw
from his representation of Carlstrom.
10.
Fjelstad did not provide, upon request, a copy of Carlstrom’s file.
Violations
11.
Fjelstad admits that, his inability to take the steps necessary to secure entry of a
judgment against a defaulting defendant, notwithstanding having placing his client in the
position of being able to secure the judgment, demonstrates that he lacked the requisite skill,
thoroughness and preparation reasonably necessary to represent his client, in violation of RPC
1.1.
12.
Fjelstad also admits that his inaction, resulting in his failure to complete the matter for
Carlstrom, and his failures to respond to her inquiries, violated both RPC 1.3 and RPC 1.4(a).
13.
Fjelstad further admits that his failure to withdraw from Carlstrom’s matter in the face
of the medical condition affecting his practice violated RPC 1.16(a)(2), and that his failure to
provide Carlstrom with her file, upon request, violated RPC 1.16(d).
Sanction
14.
Fjelstad and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Fjelstad’s conduct be analyzed by considering the
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
271
following factors: (1) the ethical duty violated, (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Fjelstad violated his duties to a client (Standards at 5) by failing
to act with competence and diligence, and failing to communicate. He violated
his duty owed as a professional (Standards at 7) by failing to withdraw
appropriately in the face of a self-identified medical condition that impaired his
ability to discharge the duties owed to his client.
b. Mental State. The most culpable mental state is that of “intent,” when the
lawyer acts with the conscious objective or purpose to accomplish a particular
result. Standards at 9. “Knowledge” is the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result. Id. “Negligence” is the failure to be
aware of a substantial risk that circumstances exist or that a result will follow
and which deviates from the standard of care that a reasonable lawyer would
exercise in the situation. Id.
Fjelstad acted with knowledge of his failure to successfully file the proposed
judgment and of his declining health in failing to appropriately withdraw. To
the extent that Fjelstad lacked actual knowledge of the deficiencies of his email
and phone systems and the impact their malfunctioning had on his ability to
communicate appropriately with his client, he was negligent in not assuring
that such systems were working appropriately. To the extent that Fjelstad was
aware of his declining medical condition, he was at least negligent if not
knowing in failing to take steps to withdraw from representation of Carlstrom
in order to avoid putting her legal interests at risk due to his diminished
capacity.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992).
Fjelstad’s failure to pursue and protect his client’s interests in obtaining a
judgment, to notify her of his failure to do so, or to withdraw from repre-
sentation when he recognized or should have known that his declining health
was impacting his ability to discharge responsibilities to his client resulted in
both potential and actual injury to Carlstrom, who incurred $288 in a filing fee
and court costs in pursuit of the lawsuit that was dismissed due to Fjelstad’s
failure to complete the matter and was made to hire another attorney to rectify
dismissal of her lawsuit.
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
272
d. Aggravating Circumstances. Aggravating circumstances include:
1. A prior history of discipline. Standards § 9.22(a). Fjelstad was repri-
manded in 2015, for violation of RPC 7.1 [misleading advertising]. In
re Fjelstad, 29 DB Rptr 122 (2015). He was also previously suspended
for 30 days for violations of RPC 1.4(a); RPC 1.15-1(a) [failure to
safeguard and keep separate client property]; RPC 1.15-1(d) [failure to
account for and return client property]; RPC 3.5(b) [improper ex parte
communication]; RPC 5.3(a) [failure to supervise non-lawyer staff]; and
RPC 8.4(a)(4) [conduct prejudicial to the administration of justice].
Some of the same rules and types of conduct are at issue in this case as
which previously subjected Fjelstad to discipline.
2. Multiple offenses. Standards § 9.22(d).
3. Vulnerability of victim. Standards § 9.22(h).
4. Substantial experience in the practice of law. Standards § 9.22(i).
Fjelstad was admitted to practice in Oregon in 1989, and in Washington
in 1990.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards § 9.32(b).
2. Full and free disclosure or cooperative attitude toward proceedings.
Standards § 9.32(e).
15.
Under the ABA Standards, suspension is generally appropriate when (a) a lawyer
knowingly fails to perform service for a client and causes injury or potential injury to a client;
or (b) the lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
Standards § 4.42. A reprimand is generally appropriate when a lawyer: (a) demonstrates failure
to understand relevant legal doctrines or procedures and causes injury or potential injury to a
client; or (b) is negligent in determining whether he or she is competent to handle a legal matter
and causes injury or potential injury to a client. A reprimand is also generally appropriate when
a lawyer negligently engages in conduct that is a violation of a duty owed as a professional,
and causes injury or potential injury to a client, the public, or the legal system. Standards
§§ 4.53, 7.3. Given Fjelstad’s aggravating factors, and particularly, his substantial experience
and history of prior discipline, a suspension is the applicable outcome under the Standards.
16.
Oregon case law reaches a similar conclusion. See, e.g., In re LaBahn, 335 Or 357,
365–67, 67 P3d 381 (2003) (court imposed a 60-day suspension where the lawyer filed a
lawsuit on the last day before the statute of limitations ran, failed to effect timely service, as a
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
273
result of which the court dismissed the case for want of prosecution, and failed to inform his
client of the dismissal for over a year, noting that aggravating and mitigating factors similar to
those of Fjelstad were equipoise); and In re Castanza, 350 Or 293, 253 P3d 1057 (2011) (court
affirmed a trial panel’s imposition of a 60-day suspension for respondent’s failure to take
reasonable steps to protect his clients’ interests after terminating his representation).
17.
Consistent with the Standards and Oregon case law, the parties agree that Fjelstad shall
be suspended for 60 days for his violation of RPC 1.1; RPC 1.3; RPC 1.4(a); RPC 1.16(a)(2);
and RPC 1.16(d), the sanction to be effective seven (7) days following approval by the
Disciplinary Board.
18.
Fjelstad acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. Fjelstad transferred to inactive status
on January 31, 2017, and represents that he has wound down his practice and no longer has
any active client files.
19.
Fjelstad acknowledges that reinstatement is not automatic on expiration of the period
of suspension. He is required to comply with the applicable provisions of Title 8 of the Bar
Rules of Procedure. Fjelstad also acknowledges that he cannot hold himself out as an active
member of the Bar or provide legal services or advice until he is notified that his license to
practice has been reinstated.
20.
Fjelstad acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Fjelstad to attend or obtain continuing legal education
(CLE) credit hours.
21.
Fjelstad represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Fjelstad is admitted: Washington.
Cite as In re Fjelstad, 31 DB Rptr 268 (2017)
274
22.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 5th day of September, 2017.
/s/ Eric J. Fjelstad
Eric J. Fjelstad
OSB No. 892383
EXECUTED this 8th day of September, 2017.
OREGON STATE BAR
By: /s/ Dawn Miller Evans
Dawn Miller Evans
OSB No. 141821
Disciplinary Counsel
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
275
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 14-79, 16-93, 16-145
)
RUSSELL LIPETZKY, )
)
Accused. )
Counsel for the Bar: Courtney C. Dippel
Counsel for the Accused: John Fisher
Disciplinary Board: None
Disposition: Violation of RPC 1.3, RPC 1.15-1(d), RPC 5.5(a), RPC
8.1(a)(2), RPC 8.4(a)(4), and ORS 9.160. Stipulation
for Discipline. 6-month suspension with formal
reinstatement.
Effective Date of Order: November 15, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Russell Lipetzky and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Russell Lipetzky is suspended for six (6) months, effective November 15, 2017 for violations
of RPC 1.3 and RPC 8.1(a)(2) in Case No. 14-79; RPC 1.3, RPC 1.15-1(d), and RPC 8.4(a)(4)
in Case No. 16-93; and RPC 5.5(a) and ORS 9.160 in Case No. 16-145.
IT IS FURTHER ORDERED that Russell Lipetzky will be subject to the formal
reinstatement requirements under BR 8.1.
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
276
DATED this 30th day of October, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ James Edmonds
James Edmonds, Region 6
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Russell Lipetzky, attorney at law (“Lipetzky”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Lipetzky was admitted by the Oregon Supreme Court to the practice of law in Oregon
on April 22, 1987, and has been a member of the Bar continuously since that time, having his
office and place of business in Marion County, Oregon.
3.
Lipetzky enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On December 19, 2014, the State Professional Responsibility Board (“SPRB”)
authorized formal disciplinary proceedings against Lipetzky for alleged violations of RPC 1.3
and RPC 8.1(a)(2) of the Oregon Rules of Professional Conduct (“RPC”) in Case No. 14-79.
On July 9, 2016, the SPRB authorized formal disciplinary proceedings against Lipetzky for
alleged violations of RPC 1.3, RPC 1.15-1(d), and RPC 8.4(a)(4) in Case No. 16-93. On
October 22, 2016, the SPRB authorized formal disciplinary proceedings against Lipetzky for
alleged violations of RPC 5.5(a) and ORS 9.160 in Case No. 16-145. On May 10, 2017, an
Amended Formal Complaint was filed against Lipetzky pursuant to the authorization of the
SPRB, alleging violations of RPC 1.3 and RPC 8.1(a)(2) in Case No. 14-79; RPC 1.3, RPC
1.15-1(d), and RPC 8.4(a)(4) in Case No. 16-93; and RPC 5.5(a) and ORS 9.160 in Case No.
16-145. The parties intend that this Stipulation for Discipline set forth all relevant facts,
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
277
violations and the agreed-upon sanction as a final disposition of these consolidated pro-
ceedings.
Facts
Case No. 14-79 (Richard Patston)
5.
Lipetzky represented Michelle Patston (“Wife”) in a domestic relations modification
matter. On November 1, 2013, Lipetzky agreed to prepare a form of supplemental judgment
that incorporated terms requested by Richard Patston (“Husband”) and Husband’s attorney.
6.
Lipetzky did not prepare the supplemental judgment. After several months passed
without receiving the judgment from Lipetzky, Husband’s attorney prepared the supplemental
judgment and sent it to Lipetzky for his review and Wife’s signature on January 30, 2014.
7.
Over the next several months, Lipetzky did not return the judgment, even after
Husband’s attorney called him multiple times to inquire about the status. Lipetzky did not
return the executed judgment to Husband’s attorney until August 19, 2014.
8.
On March 31, 2014, Husband complained to the Bar that Lipetzky had neglected to
prepare the judgment and was continuing his neglectful conduct by not returning an executed
judgment to Husband’s attorney.
9.
On May 15, 2014, Disciplinary Counsel’s Office sent Lipetzky a letter asking Lipetzky
to provide his account of the Patston matter by June 5, 2014. When Lipetzky did not respond
to the letter, Disciplinary Counsel’s Office sent Lipetzky a second letter on June 13, 2014,
again asking for Lipetzky’s account. Lipetzky still did not respond.
10.
On June 28, 2014, Lipetzky sent Disciplinary Counsel’s Office a letter acknowledging
his receipt of the prior inquiries and his failure to respond to them. Lipetzky replied that he
would respond more fully and completely after July 7, 2014. Despite that, in the weeks
following July 7, 2014, Lipetzky did not respond to Disciplinary Counsel’s inquiries.
11.
Lipetzky did not respond to Disciplinary Counsel regarding the Patston matter until
August 14, 2014, after Disciplinary Counsel filed a petition pursuant to BR 7.1 to immediately
suspend Lipetzky for failing to respond to Disciplinary Counsel’s requests for information.
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
278
Violations
12.
Lipetzky admits that, by not preparing the supplemental judgment and by delaying for
several months before returning the supplemental judgment to Husband’s attorney, he violated
RPC 1.3. Lipetzky further admits that, by not responding to Disciplinary Counsel’s inquiries
regarding the Patston matter, he violated RPC 8.1(a)(2).
Case No. 16-93 (Shannon Hall)
13.
On January 5, 2015, the Marion County Circuit Court appointed Lipetzky to serve as
the court-appointed arbitrator in a marital dissolution case (the “Herman case”).
14.
After Lipetzky was appointed as the arbitrator, he received a total of $750 for
pre-arbitration fees on behalf of the parties.
15.
Lipetzky initially scheduled the arbitration hearing for March 4, 2015. On February 18,
2015, one of the parties requested postponing the March hearing, which request Lipetzky
granted.
16.
Between late March and mid-May 2015, Shannon Hall (“Hall”), counsel for Lawana
Herman, made multiple attempts to contact Lipetzky by mail, email, and telephone to
reschedule the arbitration. Lynda Olson (“Olson”), counsel for Vincent Herman, also contacted
Lipetzky during the same time period. Lipetzky did not respond to either Hall or Olson and did
not reschedule the arbitration hearing.
17.
On April 21, 2015, the Marion County Circuit Court issued a notice of intent to dismiss
within thirty days if no actions were taken in the Herman matter. On May 15, 2015, Hall and
Olsen moved for an extension of time to complete the arbitration. The court granted the motion
and ordered that the arbitration be held on or before August 2015.
18.
Hall and Olson made multiple attempts between mid-May and mid-September 2015 to
contact Lipetzky by email, mail, and telephone to again schedule the arbitration. Lipetzky did
not respond and did not schedule the arbitration in advance of the court’s August 2015
deadline.
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
279
19.
In September of 2015, the court removed Lipetzky as the arbitrator in the Herman case
due to his lack of communication and action in scheduling the arbitration and appointed a new
arbitrator.
20.
On October 12, 2015, Olson wrote to Lipetzky and requested that he refund any
unearned portion of the parties’ advanced arbitration fees. Lipetzky did not respond or refund
any portion of the fees at that time.
21.
On February 12, 2016, Olson again wrote to Lipetzky noting that he had not responded
to her October 12
th
letter, nor had he delivered either a bill or a refund for her client. Olson
requested that Lipetzky respond regarding the status of the funds. Still, Lipetzky did not
respond or account for the funds he had received.
22.
On February 17, 2016, Hall complained to the Bar about Lipetzky’s conduct. On March
24, 2016, after the Bar contacted Lipetzky about Hall’s bar complaint, Lipetzky returned the
arbitration fees.
Violations
23.
Lipetzky admits that, by not rescheduling the arbitration hearing and by not responding
to any of the parties’ communications regarding the arbitration, he violated RPC 1.3 and RPC
8.4(a)(4). Lipetzky further admits that, by not returning the fees that he did not earn to the
parties until March 24, 2016, he violated RPC 1.15-1(d).
Case No. 16-146 (OSB)
24.
Lipetzky’s Minimum Continuing Legal Education (“MCLE”) compliance report was
due to the Bar by January 31, 2016. Lipetzky did not file his MCLE report by the deadline.
25.
On March 3, 2016, the Bar sent Lipetzky a notice of his MCLE non-compliance by first
class mail to Lipetzky’s address on record with the Bar (“record address”). The Bar sent a
second notice to Lipetzky by email to Lipetzky’s email address on file with the Bar (“record
email address”). Lipetzky received the Bar’s notices, but still did not file his MCLE report.
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
280
26.
On March 10, April 19, and April 26, 2016, the Bar sent Lipetzky notices of MCLE
non-compliance, all of which notified him that he could be suspended if he failed to cure his
noncompliance. Lipetzky still did not file his MCLE report.
27.
On May 4, 2016, the Bar sent a letter to the Oregon Supreme Court recommending that
Lipetzky be suspended for his MCLE noncompliance. Lipetzky was copied on the letter, but
still did not file his MCLE report.
28.
On May 26, 2016, the Oregon Supreme Court issued an order suspending Lipetzky on
June 2, 2016, for failing to comply with his MCLE reporting requirements. Lipetzky received
a copy of the order, but did not review it.
29.
From June 2, 2016, to June 7, 2016, Lipetzky continued to practice law and held himself
out as authorized to practice law even though he was suspended at the time. Lipetzky should
have known, but did not know, that he was suspended at that time. Lipetzky ceased to practice
law once he became aware of the order.
Violations
30.
Lipetzky admits that, by practicing law while suspended, he violated RPC 5.5(a) and
ORS 9.160.
Sanction
31.
Lipetzky and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Lipetzky’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Lipetzky violated his duty to his clients to act with reasonable
diligence and promptness. Lipetzky violated his duty to the public to refrain
from engaging in conduct that is prejudicial to the administration of justice.
Lipetzky violated his duty to the profession to refrain the unauthorized practice
of law and his duty to cooperate with disciplinary authorities. Standards §§ 4.4,
5.2, 7.0.
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
281
b. Mental State. The Standards recognize three mental states: intentional,
knowing, and negligent. Standards at 9. Lipetzky acted knowingly in neglecting
both the Patston and Herman matters, in failing to promptly return client funds,
and in harming the administration of justice. Lipetzky acted intentionally in
failing to respond to the Bar’s inquiries on the Patston matter. Lipetzky acted
negligently when he practiced law while suspended.
c. Injury. Both actual and potential injury are relevant to determining the sanction
in a disciplinary case. Standards § 3.0; In re Williams, 314 Or 530, 547, 840
P2d 1280 (1992). Lipetzky caused actual and potential harm when he neglected
the Patston and Herman matters and when he failed to timely return funds to
the Herman parties. See In re Cohen, 330 Or 489, 496, 8 P3d 953 (2000) (client
anxiety and frustration as a result of attorney neglect can constitute actual injury
under the Standards); In re Schaffner, 325 Or 421, 426–27, 939 P2d 39 (1997).
Lipetzky’s failure to cooperate with the DCO investigation caused actual harm
to both the legal profession and to the public because he delayed the Bar’s
investigation and, consequently, the resolution of the complaint against him. In
re Schaffner, 325 Or at 427; In re Miles, 324 Or 218, 222, 923 P2d 1219 (1996);
In re Haws, 310 Or 741, 753, 801 P2d 818 (1990).
d. Aggravating Circumstances. Aggravating circumstances include:
1. Prior discipline – Lipetzky was admonished on August 6, 2013 for
violations of RPC 1.15-1(a), (d); Standards § 9.22(a);
2. A pattern of misconduct; Standards § 9.22(c);
3. Multiple offenses; Standards § 9.22(d);
4. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Personal or emotional problems; Standards § 9.32(c). During the times
in question, Lipetzky experienced a series of significant personal events
that resulted in a then-undiagnosed depression.
2. Character and Reputation; Standards § 9.32(g). Lipetzky has a long
history of volunteer service to and for the public and the bar.
3. Remorse; Standards § 9.32(l).
32.
Under the ABA Standards, absent aggravating and mitigating factors, suspension is the
presumptive sanction when a lawyer knowingly fails to perform services for a client or engages
in a pattern of neglect and causes injury or potential injury as a result. Standards § 4.42.
Suspension is also generally appropriate when a lawyer knows or should know that he is
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
282
dealing improperly with client property and causes injury or potential injury to a client.
Standards § 4.12. Suspension is also appropriate when a lawyer in an official or governmental
position knowingly fails to follow proper procedures or rules, and causes injury or potential
injury to a party or to the integrity of the legal process. Standards § 5.22. Suspension is also
appropriate when a lawyer knowingly engages in conduct that violates a duty owed as a
professionaland causes injury or potential injury to a client, the public, or the legal system.
Standards § 7.2.
Further, where a suspension is appropriate, it should be for a period of time equal to or
greater than six months. Standards § 2.3.
33.
Oregon case law suggests that a six to nine month suspension is appropriate for
Lipetzky’s violations in these consolidated matters. Neglect, with or without other violations,
typically results in a suspension of several months. See, e.g., In re Jackson, 347 Or 426, 223
P3d 387 (2009) (120-day suspension for an attorney who was not prepared for a settlement
conference he had requested, failed to send his calendar of available dates to an arbitrator,
failed to respond to messages from the arbitrator’s office and failed to take steps to pursue the
arbitration after a second referral to arbitration by the court. The attorney was also found to
have engaged in conduct prejudicial to the administration of justice and knowingly making
false statements to the court.); In re Koch, 345 Or 444, 198 P3d 910 (2008) (120-day
suspension for an attorney who failed to advise her client that another lawyer would prepare a
Qualified Domestic Relations Order for the client and thereafter failed to communicate with
the client and that second lawyer when they needed information and assistance from the
attorney to complete the legal matter. The attorney also failed to promptly return client property
and failed to cooperate in the bar investigation.); In re Redden, 342 Or 393, 153 P3d 113 (2007)
(60-day suspension for an attorney for failing to complete a child support arrearage matter for
a client for nearly two years); In re Coyner, 342 Or 104, 149 P3d 1118 (2006) (Three month
suspension plus formal reinstatement under BR 8.1 for an attorney who was appointed to
handle a criminal appeal but took no action on the matter for nearly a year and allowed the
appeal to be dismissed. In another matter, the attorney failed to respond to a motion to dismiss
and did not inform the client when the motion was granted.); In re Worth, 337 Or 167, 92 P3d
721 (2004) (120-day suspension for an attorney who failed to move a client’s case forward,
despite several warnings from the court and a court directive to schedule arbitration by a date
certain, resulting in the court granting the opposing party’s motion to dismiss. The attorney also
made misrepresentations to the court and had previously been disciplined for similar misconduct).
A failure to promptly return funds also results in suspension. In re Obert, 352 Or 231,
282 P3d 825 (2012) (Six-month suspension when the attorney deposited an advance fee
directly into his business account without a written agreement allowing him to do so and before
the fee was earned. When the client requested that the retainer be returned, attorney refused.).
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
283
Lawyers who engage in conduct prejudicial to the administration of justice also serve
suspensions of varying length. See, e.g., In re Carini, 354 Or 47, 308 P3d 197 (2013) (30-day
suspension for the attorney’s repeated failure to appear at court hearings); In re Paulson, 341
Or 13, 136 P3d 1087 (2006), cert den, 549 US 1116 (2007) (six-month suspension when
attorney filed a pleading in a bankruptcy purportedly on behalf of the debtors when he was not
attorney of record and knew that the debtors, his clients in a related state court matter, objected
to the filing. In addition, attorney’s cumulative actions in the state court matter in which he
ignored or violated various procedural rules resulted in the litigation becoming more
complicated, protracted and expensive, all serving to prejudice the administration of justice.).
Finally, the Court has repeatedly held that the “failure to cooperate with a disciplinary
investigation, standing alone, is a serious ethical violation.” In re Parker, 330 Or 541, 551, 9
P3d 107 (2000). Accordingly, the Court has consistently imposed suspensions of no less than
sixty days for a single violation of RPC 8.1(a)(2). See In re Obert, 352 Or at 262–63 (six-
month suspension for an attorney who failed to respond to numerous requests from the bar
about an ethics complaint until subpoenaed); In re Miles, 324 Or at 218 (120-day suspension
of attorney for noncooperation with bar despite no other violations); In re Schaffner, 323 Or at
472 (120-day suspension for an attorney who violated rule by failing to respond to the bar’s
inquiries in a timely manner. The Court found that a 60-day suspension was appropriate each
for the attorney’s neglect and his failure to cooperate with the bar.).
34.
Consistent with the Standards and Oregon case law, the parties agree that Lipetzky
shall be suspended for six (6) months for violations of RPC 1.3 and RPC 8.1(a)(2) in Case No.
14-79; RPC 1.3, RPC 1.15-1(d), and RPC 8.4(a)(4) in Case No. 16-93; and RPC 5.5(a) and
ORS 9.160 in Case No. 16-145. Lipetzky’s suspension shall commence on November 15,
2017.
The parties further agree that, should Lipetzky seek to practice law following the
expiration of his suspension, Lipetzky shall be required to formally apply for reinstatement
pursuant to BR 8.1, which requires action by the Board of Governors and the Supreme Court.
Lipetzky understands that he cannot resume the practice of law until he has taken all steps
necessary to re-attain active membership status with the Bar. During the period of suspension
and continuing through the date upon which Lipetzky re-attains his active membership status
with the Bar, Lipetzky shall not practice law or represent that he is qualified to practice law;
shall not hold himself out as a lawyer; and shall not charge or collect fees for the delivery of
legal services other than for work performed and completed prior to the period of suspension.
35.
In addition, on or before January 1, 2018, Lipetzky shall pay to the Bar its reasonable
and necessary costs in the amount of $1,033.50, incurred in these consolidated matters. Should
Lipetzky fail to pay $1,033.50 in full by January 1, 2018, the Bar may thereafter, without
Cite as In re Lipetzky, 31 DB Rptr 275 (2017)
284
further notice to him, obtain a judgment against Lipetzky for the unpaid balance, plus interest
thereon at the legal rate to accrue from the date the judgment is signed until paid in full.
36.
Lipetzky acknowledges that he has certain duties and responsibilities under the Rules
of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid
foreseeable prejudice to his clients during the term of his suspension. In this regard, Lipetzky
has arranged for Paul Saucy, 475 Cottage Street NE, Suite 120, Salem, OR 97301, an active
member of the Bar, to either take possession of or have ongoing access to Lipetzky’s client
files and serve as the contact person for clients in need of the files during the term of his
suspension. Lipetzky represents that Paul Saucy has agreed to accept this responsibility.
37.
Lipetzky acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in the
denial of his reinstatement. This requirement is in addition to any other provision of this
agreement that requires Lipetzky to attend or obtain continuing legal education (CLE) credit
hours.
38.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 25th day of October, 2017.
/s/ Russell Lipetzky
Russell Lipetzky
OSB No. 871101
APPROVED AS TO FORM AND CONTENT:
/s/ John Fisher
John Fisher
OSB No. 771750
EXECUTED this 30th day of October, 2017.
OREGON STATE BAR
By: /s/ Courtney C. Dippel
Courtney C. Dippel, OSB No. 022916
Assistant Disciplinary Counsel
Cite as In re Keeler, 31 DB Rptr 285 (2017)
285
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 14-145, 14-146, 15-126,
) 15-127, 16-171, 16-172, 16-173,
J. ANDREW KEELER, ) 16-176, & 16-177
)
Accused. ) SC S065331
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: Clayton H. Morrison
Disciplinary Board: None.
Disposition: Violation of RPC 1.1, RPC 1.3, RPC 1.4(a), RPC
1.4(b), RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(a), RPC
1.15-1(c), RPC 1.15-1(d), RPC 1.16(d), RPC 5.3(a),
RPC 5.4(a), RPC 5.5(a), RPC 8.1(a)(2), and RPC
8.4(a)(4). Stipulation for Discipline. One-year
suspension.
Effective Date of Order: November 9, 2017
ORDER ACCEPTING STIPULATION FOR DISCIPLINE
Upon consideration by the court.
The court accepts the Stipulation for Discipline. The accused is suspended from the
practice of law in the State of Oregon for a period of one year, effective as of the date of this
order.
/s/ Thomas A. Balmer 11/09/2017 8:39 AM
Thomas A. Balmer
Chief Justice, Supreme Court
STIPULATION FOR DISCIPLINE
J. Andrew Keeler, attorney at law (“Keeler”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Keeler, 31 DB Rptr 285 (2017)
286
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Keeler was admitted by the Oregon Supreme Court to the practice of law in Oregon on
September 28, 2004, and has been a member of the Bar continuously since that time, having
his office and place of business in Clackamas County, Oregon.
3.
Keeler enters into this Stipulation for Discipline freely, voluntarily, and with the advice
of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On December 2, 2015, an Amended Formal Complaint was filed against Keeler pur-
suant to the authorization of the State Professional Responsibility Board (“SPRB”), regarding
Case Nos. 14-145, 15-126 and 15-127, alleging violation of the following Rules of Professional
Conduct (RPC):
Case No. 14-145 (Anne Conole Steiner): RPC 1.1 [competence]; RPC 1.3 [neglect of
a legal matter]; RPC 1.5(a) [charging or collecting a clearly excessive fee]; RPC
1.5(c)(3) [charging a nonrefundable fee without required language]; RPC 1.15-1(c)
[duty to deposit client funds into trust]; RPC 1.16(d) [duty to return client file after
termination and refund unearned fees]; and RPC 8.1(a)(2) [duty to respond to
disciplinary inquiries];
Case No. 15-126 (Eric E. Meyer): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a) [duty
to keep a client reasonably informed about the status of a matter and promptly comply
with reasonable requests for information]; RPC 1.16(d) [duty to return client file after
termination and refund unearned fees]; RPC 8.1(a)(2) [duty to respond to disciplinary
inquiries]; and RPC 8.4(a)(4) [conduct prejudicial to the administration of justice]; and,
Case No. 15-127 (Robert O’Mea): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a)
[duty to keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information]; RPC 1.16(d) [duty to return client
file after termination and refund unearned fees]; RPC 8.1(a)(2) [duty to respond to
disciplinary inquiries]; and RPC 8.4(a)(4) [conduct prejudicial to the administration of
justice].
Cite as In re Keeler, 31 DB Rptr 285 (2017)
287
5.
On December 3, 2016, the SPRB authorized formal disciplinary proceedings against
Keeler regarding Case Nos. 16-171, 16-172 and 16-173, alleging violation of the following
RPC’s:
Case No. 16-171 (Patricia Stromenger): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a)
[duty to keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information]; RPC 1.5(c)(3) [charging or
collecting a fee denominated as earned on receipt without written fee agreement with
required disclosures]; RPC 1.15-1(a) [duty to hold funds belonging to clients or third
persons separate from lawyer’s own property]; and RPC 1.15-1(c) [duty to deposit
client funds into trust];
Case No. 16-172 (Hanna R. Stupek): RPC 1.4(a) [duty to keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests
for information]; RPC 1.5(a) [charging or collecting a clearly excessive fee]; RPC
1.5(c)(3) [charging or collecting a fee denominated as earned on receipt without written
fee agreement with required disclosures]; RPC 1.15-1(a) [duty to hold funds belonging
to clients or third persons separate from lawyer’s own property]; RPC 1.15-1(c) [duty
to deposit client funds into trust]; RPC 1.15-1(d) [prompt return of client property on
request]; and RPC 1.16(d) [duty to return client file after termination and refund
unearned fees]; and,
Case No. 16-173 (Brian Wixom): RPC 1.3 [neglect of a legal matter]; RPC 1.5(a)
[charging or collecting a clearly excessive fee]; RPC 1.5(c)(3) [charging or collecting
a fee denominated as earned on receipt without written fee agreement with required
disclosures]; RPC 1.15-1(a) [duty to hold funds belonging to clients or third persons
separate from lawyer’s own property]; RPC 1.15-1(c) [duty to deposit client funds into
trust]; and RPC 1.15-1(d) [prompt return of client property on request].
6.
On April 9, 2016, the SPRB authorized formal disciplinary proceedings against Keeler
regarding Case No. 14-146 (Robert James Claus) for alleged violations of RPC 1.1 [duty to
provide competent representation]; RPC 5.3(a) [duty to supervise non-lawyer personnel]; RPC
5.4(a) [lawyer or law firm shall not share legal fees with a nonlawyer]; RPC 5.5(a) [assisting
non-lawyer in the practice of law], and RPC 8.1(a)(2) [duty to respond to disciplinary
inquiries].
7.
On July 15, 2017, the SPRB authorized formal disciplinary proceedings against Keeler
regarding Case Nos. 16-176 and 16-177, alleging violation of the following RPC’s:
Cite as In re Keeler, 31 DB Rptr 285 (2017)
288
Case No. 16-176 (Jerry A. Voigt): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a) [duty
to keep a client reasonably informed about the status of a matter and promptly comply
with reasonable requests for information] ; RPC 1.4(b) [duty to explain a matter to the
extent reasonably necessary to permit the client to make informed decisions regarding
the representation]; and RPC 1.16(d) [duty to return client file after termination and
refund unearned fees]; and
Case No. 16-177 (R. Michael Voigt): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a)
[duty to keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information]; RPC 1.4(b) [duty to explain a matter
to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation]; and RPC 1.16(d) [duty to return client file after termi-
nation and refund unearned fees].
8.
The parties intend that this Stipulation for Discipline set forth all relevant facts,
violations and the agreed-upon sanction as a final disposition of the proceeding.
Anne Conole Steiner Matter (Case No. 14-145)
Facts
9.
Beginning in 2011, Keeler represented Jennifer Behn (“Behn”) in connection with
matters related to the guardianship of her father, Brant Koller (“Koller”). On January 24, 2013,
Koller passed away. Keeler did not notify the guardian, or the court in which the guardianship
was pending, of Koller’s death. Keeler did not seek an order terminating the guardianship and
discharging the guardian.
10.
In April 2013, Behn hired Keeler to pursue an intestate proceeding to settle Koller’s
estate (“Koller Estate”). Keeler had not previously administered an intestate estate but agreed
to perform the necessary legal services for $4,000, plus $600 in anticipated court costs. Keeler
provided a proposed written fee agreement to Behn but has not produced a signed agreement.
Regardless, the proposed agreement did not inform Behn that:
(i) the funds paid for fees would not be deposited into Keeler’s lawyer trust
account, and
(ii) that Behn was permitted to discharge Keeler at any time and, in that event,
might be entitled to a refund of all or part of the fee if the services for which the
fee was paid were not completed.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
289
11.
On April 8, 2013, Behn tendered two checks to Keeler, one in the amount of $4,000 for
Keeler’s attorney fees (“Behn funds”) and one in the amount of $600 for costs.
Notwithstanding the absence of a written fee agreement signed by Behn that provided the
necessary disclosures, Keeler did not deposit the Behn funds into his lawyer trust account.
12.
On June 20, 2013, Keeler filed the petition and proposed limited judgment to initiate
the administration of the Koller Estate and to have Behn appointed as personal representative.
Keeler also requested that Behn’s bond as personal representative be waived. The probate court
returned the proposed limited judgment unexecuted because there was insufficient information
to support Keeler’s request that Behn’s bond be waived.
13.
Between June 20, 2013, and September 30, 2013, Keeler failed to take action to correct
the petition and proposed limited judgment or to seek information from the probate court
regarding its disposition or actions he could take, despite multiple inquiries from Behn. On
September 23, 2013, the probate court sent a letter to Keeler, inquiring about the status of the
proceeding. On September 30, 2013, Keeler filed an amended petition. On October 29, 2013,
the limited judgment was resubmitted and signed by the probate court.
14.
After October 2013, Keeler failed to take any substantive action on Behn’s behalf,
including, filing an inventory, publishing the required notice to would-be heirs and creditors,
and submitting information regarding heirs and devisees to the Department of Human Services.
In addition, Keeler did not notify the attorney for Koller’s conservator of Behn’s appointment
as personal representative of the Koller Estate.
15.
In February 2014, Behn terminated Keeler’s representation and retained attorney Anne
Conole Steiner (“Steiner”) to complete the Koller Estate. On February 5, 2014, Steiner
demanded that Keeler provide Behn’s unused costs and account for and return the unearned
portion of the Behn funds. Keeler did not respond or provide the unused costs or any portion
of the Behn funds.
16.
On June 19, 2014, Steiner complained to the Bar about Keeler’s conduct. On July 21,
2014, Steiner’s complaint was referred to Disciplinary Counsel’s Office (“DCO”) with notice
to Keeler.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
290
17.
On July 31, 2014, DCO requested Keeler’s response to Steiner’s complaint. The letter
was mailed to Keeler by first-class mail to his address on record with the Bar (“record address”)
and was not returned as undeliverable. Keeler did not respond.
18.
On September 3, 2014, DCO again requested that Keeler respond to Steiner’s
complaint. The letter was mailed to Keeler by first-class and certified mail to Keeler’s record
address. The first-class letter was not returned as undeliverable and the certified letter was
signed for by “A. Hawkins.” On September 12, 2014, Keeler emailed DCO, acknowledged
awareness of the Steiner complaint and requested additional time to respond. By responsive
email, DCO allowed Keeler until October 1, 2014, to submit his response. Keeler did not
respond.
19.
On October 13, 2014, DCO again requested Keeler’s response to Steiner’s complaint.
The letter was mailed to Keeler by first-class and certified mail to Keeler’s record address. The
first-class letter was not returned as undeliverable and the certified letter was signed for by “A.
Hawkins.” Keeler did not respond.
20.
On January 13, 2015, with notice to Keeler, DCO petitioned the State Disciplinary
Board Chair to administratively suspend Keeler pursuant to BR 7.1, due to his failure to
respond to DCO’s inquiries. Keeler did not respond and was administratively suspended on
January 22, 2015.
Violations
21.
Keeler admits that his failure to provide competent representation and his failure to
more timely attend to Behn’s legal matter was neglect of a legal matter, in violation of RPC
1.1 and RPC 1.3. Keeler further admits that in charging or collecting a clearly excessive fee he
violated RPC 1.5(a). Keeler admits that in entering into a non-refundable fee arrangement
without the required disclosures; in failing to deposit and maintain client funds in trust until
fees were earned or expenses incurred; and in failing to take reasonable steps upon withdrawing
to protect his client’s interests, including the refund of unearned fees, he violated RPC
1.5(c)(3); RPC 1.15-1(c); and RPC 1.16(d). Keeler admits that his failure to respond to lawful
demands for information from a disciplinary authority violated RPC 8.1(a)(2).
Cite as In re Keeler, 31 DB Rptr 285 (2017)
291
Robert James Claus Matter (Case No. 14-146)
Facts
22.
Beginning in 2014, Robert James Claus (“Claus”) retained Keeler in a number of civil
matters, including defense of a wage claim (“Wage Claim matter”).
23.
In an effort to save Claus costs, Keeler assigned his paralegal, R. Michael Voigt
(“Voigt”), a significant amount of the legal work related to Keeler’s representation of Claus.
Voigt is not a licensed attorney in any jurisdiction and worked for Keeler as an independent
contractor. Keeler was aware that Voigt is not a licensed attorney.
24.
In connection with Keeler’s representation of Claus in his matters, Voigt met with
Claus without Keeler being present, met with opposing counsel without Keeler being present,
negotiated with opposing parties for Claus, researched statutes of limitations at Claus’s request,
prepared extensive memoranda of law with analysis of legal and factual issues in Claus’s
matters, and provided Claus with his legal advice and recommendations.
25.
Voigt presented Keeler with an argument that the Wage Claim matter could be dis-
missed for improper venue because the action was transitory and, as such, the lack of venue
took subject matter jurisdiction from the court. Voigt’s position was unsupported by law.
Keeler accepted Voigt’s argument and filed a motion to dismiss based on it.
26.
Voigt’s legal advice to Keeler and to Claus failed to meet the level of knowledge,
thoroughness and skill required of an attorney. Keeler was aware of Voigt’s legal advice and
failed to take adequate steps to intervene in the giving of that advice, or to adequately ensure
and supervise the quality and content of that advice.
27.
Claus paid legal fees that were split between Keeler and Voigt for the work performed
by them. Claus was billed separately for Voigt’s time and the letters and memos Voigt wrote
with his legal analysis.
28.
On December 5, 2014, the Claus complaint was referred to DCO with notice to Keeler.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
292
29.
On December 16, 2014, DCO requested Keeler’s response to Claus’s complaint. The
letter was mailed to Keeler by first-class mail to his address on record with the Bar (“record
address”) and was not returned as undeliverable. Keeler did not respond.
30.
On January 2, 2015, DCO again requested that Keeler respond to Claus’s complaint.
The letter was mailed to Keeler by first-class to Keeler’s record address. The first-class letter
was not returned as undeliverable. Keeler did not respond until after the Bar filed a BR 7.1
motion to suspend him from practice.
Violations
31.
Keeler admits that in relying on and endorsing Voigt’s deficient legal work he failed to
provide competent representation of Claus in the Wage Claim matter; and in doing so Keeler
failed to ensure that Voigt’s conduct was compatible with Keeler’s professional obligations, in
violation of RPC 1.1 and RPC 5.3(a). Keeler further admits that he assisted Voigt in the
unauthorized practice of law by purporting to adequately supervise him but failing to
adequately do so and, in so doing, he violated RPC 5.4(a). Keeler admits that his failure to
respond to lawful demands for information from a disciplinary authority, violated RPC
8.1(a)(2).
Eric E. Meyer/O’Mea Matters (Case Nos. 15-126 & 15-127)
Facts
32.
In January of 2014, Keeler assumed the representation of Robert and Linda O’Mea (the
”O’Meas”) with respect to claims they were asserting against their former landlord Albert and
Melissa Jones (the “Joneses”) on a contingency basis (“Jones litigation”).
33.
The O’Meas provided Keeler with $700 or more for expenses connected with the Jones
litigation (“suit money”).
34.
On February 28, 2014, Keeler filed a formal complaint in the Jones litigation.
Thereafter, he failed to take any substantive action on their behalf.
35.
The O’Meas’ depositions were scheduled for December 11 and 12, 2014. There is no
evidence that Keeler notified the O’Meas of the time for the depositions in sufficient time for
Cite as In re Keeler, 31 DB Rptr 285 (2017)
293
them to attend. After 5:00 p.m., on December 10, 2014, Keeler sent an email to the Joneses’
attorney notifying him that his clients were out-of-state and would not be able to attend the
depositions. Thereafter, Keeler did not respond to repeated requests from the Joneses’ attorney
to schedule new dates for the O’Meas’ depositions, nor did he communicate to the O’Meas
that the Joneses were seeking to depose them and that their failure to appear for a deposition
could result in the dismissal of their case.
36.
Trial in the Jones litigation was scheduled for January 20, 2015, with a pretrial
appearance scheduled for January 5, 2015. Keeler did not notify the O’Meas of this appearance.
On January 5, 2015, Keeler failed to appear at the scheduled pretrial conference. The Court
rescheduled the pretrial conference for January 8, 2015, with notice to Keeler. Keeler did not
notify the O’Meas of the rescheduled appearance.
37.
On January 8, 2015, Keeler failed to appear for the rescheduled pretrial conference. At
the January 8, 2015 conference, the Joneses’ attorney moved to dismiss the O’Meas’ complaint
with prejudice. The Court set a hearing on the Joneses’ motion to dismiss for January 14, 2015,
with notice to Keeler. Keeler did not notify the O’Meas of the motion to dismiss or the hearing
scheduled to decide the motion.
38.
On January 14, 2015, Keeler failed to appear for the scheduled hearing on the Joneses’
motion to dismiss. The Court dismissed the O’Meas’ claims with prejudice and dismissed the
Joneses’ counter-claims without prejudice.
39.
Keeler did not communicate with his clients about the dismissal until around March
2015—after the deadline for an appeal had expired.
40.
In March 2015, the O’Meas demanded that Keeler account for their suit money and
return the unused portion of those funds. Keeler did not account for or return any portion of
the suit money he received from the O’Meas.
41.
On January 20, 2015, Eric Meyer, counsel for the Joneses, complained to the Bar about
Keeler’s conduct. On March 2, 2015, Meyer’s complaint was referred to DCO with notice to
Keeler.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
294
42.
On March 17, 2015, DCO requested Keeler’s response to Meyer’s complaint. The letter
was mailed to Keeler by first-class mail to his record address and was not returned as undeliver-
able. Keeler did not respond to requests for information from DCO on the Meyer complaint
until after he had been suspended on the Steiner matter.
43.
On March 13, 2015, the O’Meas complained to the Bar about Keeler’s conduct. On
March 18, 2015, the O’Meas’ complaint was referred to DCO with notice to Keeler.
44.
On March 20, 2015, DCO requested Keeler’s response to the O’Meas’ complaint. The
letter was mailed to Keeler by first-class mail to his record address and was not returned as
undeliverable. Keeler did not respond.
Violations
45.
Keeler admits that his failure to more timely attend to the O’Meas’ legal matter was
neglect of a legal matter, in violation of RPC 1.3. Keeler further admits that his failure to
respond to the O’Meas’ inquiries violated RPC 1.4(a). Keeler admits that, in failing to take
reasonable steps upon withdrawal to protect his clients’ interests, including a refund of advance
payment of fees or costs that had not been earned, he violated RPC 1.16(d). Keeler admits that
his failures to appear in court constituted conduct prejudicial to the administration of justice in
violation of RPC 8.4(a)(4). Keeler admits that his failure to respond to lawful demands for
information from a disciplinary authority violated RPC 8.1(a)(2).
Patricia Stromenger Matter (Case No. 16-171)
Facts
46.
Patricia Stromenger (“Stromenger”) was 83 years old when she hired Keeler in
September 2015 to prepare a will. She paid Keeler a “retainer” of $300. Keeler did not deposit
this payment in his client trust account. Keeler contends that Stromenger’s payment to him was
a flat fee. Keeler believes that he utilized a written fee agreement for the representation, but he
has been unable to locate a copy of such an agreement.
47.
After she hired Keeler, Stromenger made several calls to Keeler in November and
December 2015 about the status of her matter, but received no response. Stromenger also
visited Keeler’s office, but was unable to see him.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
295
48.
Keeler never prepared the will, did not speak with Stromenger after the initial con-
sultation, did not provide any updates regarding her matter, and did not return her retainer until
after she complained to the Bar.
Violations
49.
Keeler admits that his failure to more timely attend to Stromenger’s legal matter was
neglect of a legal matter in violation of RPC 1.3. Keeler further admits that his failure to
respond to the Stromenger’s inquiries violated RPC 1.4(a). Keeler admits that in entering into
a non-refundable fee arrangement without the required disclosures; in failing to keep advances
for fees in his lawyer trust account and keep complete records; and in failing to deposit and
maintain client funds in trust until fees were earned or expenses incurred, he violated RPC
1.5(c)(3); RPC 1.15-1(a); and RPC 1.15-1(c).
Hanna R. Stupek Matter (Case No. 16-172)
Facts
50.
In June 2015, Hanna R. Stupek (“Stupek”) entered into an agreement for Keeler to
represent her in a domestic relations matter, and paid him a $7,000 retainer that same month.
Keeler took $3,300 of Stupek’s retainer for his own use immediately, and deposited the
remaining $3,700 in his trust account.
51.
Keeler contends that Stupek’s payment to him was a flat fee. Keeler believes that he
utilized a written fee agreement for the representation, but he has been unable to locate a copy
of such an agreement.
52.
Keeler kept in contact with Stupek through July 2015, but stopped responding to her
requests for case information in August 2015.
53.
In August 2015, Keeler received $600 from Stupek’s husband’s attorney for child
support. Keeler did not notify Stupek of his receipt of this payment. Subsequently, Stupek’s
husband’s attorney stopped payment on the check.
54.
In late August 2015, Stupek emailed Keeler to stop all work on the dissolution of
marriage and return the unearned portion of her retainer. In addition, Stupek requested an
Cite as In re Keeler, 31 DB Rptr 285 (2017)
296
accounting of the funds in her termination letter at the end of August 2015. Keeler first
provided billing at the beginning of November 2015. Keller’s billing did not accurately reflect
the amount of money Stupek had paid, or what Keeler had done with that money.
55.
When she heard nothing further from Keeler, Stupek filed a Bar complaint against him
in mid-September 2015.
56.
Keeler’s refund to Stupek occurred seven months following his termination and only
after Stupek filed a Bar complaint.
Violations
57.
Keeler admits his failure to respond to Stupek’s inquiries violated RPC 1.4(a). Keeler
further admits that in charging or collecting a clearly excessive fee he violated RPC 1.5(a).
Keeler admits that in entering into a non-refundable fee arrangement without the required
disclosures; in failing to keep advances for fees in his lawyer trust account and complete
records; in failing to deposit and maintain client funds in trust until fees were earned or
expenses incurred; and in failing to account for and return client property, he violated RPC
1.5(c)(3); RPC 1.15-1(a); RPC 1.15-1(c); and RPC 1.15-1(d). Keeler admits that in failing to
take reasonable steps upon withdrawal to protect his client’s interests, including a refund of
advance payment of fees or costs that have not been earned, he violated RPC 1.16(d).
Brian Wixom Matter (Case No. 16-173)
Facts
58.
Brian Wixom (“Wixom”) was served with a copy of a divorce petition and an order to
show cause regarding temporary support on July 7, 2015. Wixom’s response was time-
sensitive. On July 14, 2015, Wixom signed a fee agreement with Keeler in which Wixom
agreed to pay Keeler what was purported to be a flat fee of $5,500 plus expenses to handle his
divorce. The agreement did not inform Wixom that:
(i) the funds paid for fees would not be deposited into Keeler’s lawyer trust
account, and
(ii) Wixom was permitted to discharge Keeler at any time and, in that event, might
be entitled to a refund of all or part of the fee if the services for which the fee
was paid were not completed.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
297
59.
Wixom attempted to contact Keeler multiple times about his case throughout August
2015. Keeler did not respond.
60.
On August 21, 2015, the attorney for Wixom’s spouse filed a notice of intent to take
default. On August 28, 2015, Keeler filed Wixom’s response to the divorce petition but did not
file a response to the order to show cause regarding temporary relief. As a result of the default
on temporary relief, the court imposed a $1,000 per month spousal support obligation on
Wixom dating back to July 1, 2015.
61.
Keeler did not take action to set aside the default once it was entered for two months.
62.
Keeler collected a fee from his client to complete the representation, but did not
complete it. Keeler did not promptly refund any of the fee that Wixom had paid him. While
Keller did refund a portion of that fee, it was not until after a Bar complaint had been filed
against him.
Violations
63.
Keeler admits that his failure to more timely attend to Wixom’s legal matter was
neglect of a legal matter in violation of RPC 1.3. Keeler further admits that his failure to
respond to the Wixom’s inquiries violated RPC 1.4(a). Keeler admits that in charging or
collecting a clearly excessive fee he violated RPC 1.5(a). Keeler admits that in entering into a
non-refundable fee arrangement without the required disclosures; in failing to keep advances
for fees in his lawyer trust account and complete records; in failing to deposit and maintain
client funds in trust until fees were earned or expenses incurred; and in failing to account for
and return client property he violated RPC 1.5(c)(3); RPC 1.15-1(a); RPC 1.15-1(c); and RPC
1.15-1(d).
Jerry A. Voigt Matter (Case No. 16-176)
Facts
64.
On March 25, 2014, Jerry A. Voigt (“JAV”) signed a fee agreement with Keeler in
which Keeler agreed to handle JAV’s construction defect case.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
298
65.
Keeler did not act to advance JAV’s objectives, including contacting insurance
companies regarding JAV’s claims or potential claims.
66.
In late April 2015 Keeler ceased communication with the opposing party and JAV for
approximately six months in spite of repeated requests for additional information from the
opposing party and case updates.
67.
Keeler stopped taking action on behalf of JAV, but did not communicate with her or
her agent regarding that decision, leaving her in limbo regarding whether she should seek new
counsel or take other action to protect her rights.
Violations
68.
Keeler admits that his failure to more timely attend to JAV’s legal matter was neglect
of a legal matter in violation of RPC 1.3. Keeler further admits that his failure to respond to
his client’s inquiries or provide his plan for moving he case forward, violated RPC 1.4(a) and
RPC 1.4(b). Keeler further admits that, in failing to take reasonable steps upon withdrawing to
protect his client’s interests, he violated RPC 1.16(d).
R. Michael Voigt Matter (Case No. 16-177)
Facts
69.
In March of 2015 Keeler undertook to represent his paralegal, Voigt, in relation to a
dispute that Voigt had with Walmart.
70.
Keeler agreed to draft a letter to Walmart on Voigt’s behalf regarding his dispute with
Walmart. Keeler drafted the letter and had a conversation with a legal representative of
Walmart, but took no further action on behalf of Voigt.
71.
Voigt sent multiple messages to Keeler asking for updates on his matter. Keeler did not
respond to those messages.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
299
72.
Keeler decided to take no further action on behalf of Voigt, but did not communicate
with him regarding this decision, leaving him in limbo regarding whether he should seek new
counsel or take other action to protect his rights.
Violations
73.
Keeler admits that his failure to more timely attend to Voigt’s legal matter was neglect
of a legal matter in violation of RPC 1.3. Keeler further admits that his failure to respond to
his client’s inquiries or provide his plan for moving he case forward violated RPC 1.4(a) and
RPC 1.4(b). Keeler admits that, in failing to take reasonable steps upon withdrawing to protect
his client’s interests, he violated RPC 1.16(d).
Sanction
74.
Keeler and the Bar agree that in fashioning an appropriate sanction in this case, the
Supreme Court should consider the ABA Standards for Imposing Lawyer Sanctions (“Stan-
dards”). The Standards require that Keeler’s conduct be analyzed by considering the following
factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential
injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Keeler violated his duties to his clients to appropriately handle
unearned fees upon receipt or return client property, and to act with com-
petency, reasonable diligence and promptness in representing them, including
the duty to adequately communicate with them. Standards §§ 4.1, 4.4 & 4.5.
The Standards provide that the most important duties a lawyer owes are those
owed to clients. Standards at 5. By engaging in conduct prejudicial to the
administration of justice, Keeler violated his duty to the legal system. Standards
§ 6.2. Keeler’s failures to cooperate with the Bar’s investigations in these
matters, in sharing fees with a nonlawyer and assisting a nonlawyer in the
practice of law, violated his duties as a professional. Standards §§ 7.0, 7.2.
b. Mental State. Of the mental states recognized under the Standards, Keeler’s
conduct was primarily knowing. That is, he had the conscious awareness of the
nature or attendant circumstances of the conduct but without the conscious
objective or purpose to accomplish a particular result. Standards at 9. Keeler
knew his clients hired him and paid him to meet certain objectives; he knew
that his clients requested updates and some action on their behalf; and yet he
did not to respond to their inquiries. Similarly, Keeler knew that the Bar was
investigating his conduct in these matters; he knew that the Bar was requesting
information from him; and yet he did little to substantively cooperate.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
300
c. Injury. An injury need not be actual, but only potential, to support the imposi-
tion of a sanction. Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d
1280 (1992). Injury can either be actual or potential under the Standards. See
Williams, 314 Or at 547. Keeler’s clients were actually injured to the extent that
they paid for services that were not thereafter performed and to the extent that
their matters were delayed. See, e.g., In re Parker, 330 Or 541, 547, 9 P3d 107
(2000).
Further, the lack of communication caused actual injury in the form of client
anxiety and frustration. See In re Knappenberger, 337 Or 15, 31–33, 90 P3d 614
(2004); In re Obert, 336 Or 640, 652, 89 P3d 1173 (2004); In re Cohen, 330 Or
489, 496, 8 P3d 953 (2000) (client anxiety and frustration as a result of the
attorney neglect can constitute actual injury under the Standards); In re
Schaffner II, 325 Or 421, 426–27, 939 P2d 39 (1997); In re Arbuckle, 308 Or
135, 140, 775 P2d 832 (1989).
Both the legal profession and the public are actually injured where attorney
conduct delays Bar investigations and, consequently, the resolution of Bar
complaints. In re Schaffner, 325 Or at 426–27; In re Miles, 324 Or 218, 923
P2d 1219 (1996); In re Haws, 310 Or 741, 753–54, 801 P2d 818 (1990). See
also In re Gastineau, 317 Or 545, 558, 857 P2d 136 (1993) (court concluded
that the Bar was prejudiced, because the Bar had to investigate in a more time-
consuming way, and the public respect for the Bar was diminished, because the
Bar could not provide a timely and informed response to complaints).
d. Aggravating Circumstances. Aggravating circumstances include:
1. A pattern of misconduct. Standards § 9.22(c).
2. Multiple offenses. Standards § 9.22(d).
3. Substantial experience in the practice of law. Standards § 9.22(i).
Keeler was admitted to practice in Oregon in 2004.
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior record of discipline. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards
§ 9.32(b).
3. Personal or emotional problems. Standards § 9.32(c). Keeler reports
that he was experiencing personal problems at the time of the events in
these matters.
4. Remorse. Standards § 9.32 (l). Keeler has expressed remorse for his
conduct in these matters.
Cite as In re Keeler, 31 DB Rptr 285 (2017)
301
75.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
or should know that he is dealing improperly with client property and causes injury or potential
injury to a client. Standards § 4.12. Suspension is also generally appropriate when a lawyer
knowingly fails to perform services for a client and causes injury or potential injury to a client,
or engages in a pattern of neglect and causes injury or potential injury to a client. Standards
§ 4.42. Suspension is generally appropriate when a lawyer engages in an area of practice in
which the lawyer knows he or she is not competent, and causes injury or potential injury to a
client. Standards § 4.52. Suspension is generally appropriate when a lawyer knowingly
violates a court order or rule, and there is injury or potential injury to a client or the party, or
interference or potential interference with a legal proceeding. Standards § 6.22. Finally,
suspension is generally appropriate when a lawyer knowingly engages in conduct that is a
violation of a duty owed as a professional, and causes injury or potential injury to a client, the
public, or the legal system. Standards § 7.2.
76.
Oregon cases similarly find that a suspension is appropriate for misconduct that
involves a lack of competence, neglect of a legal matter, failing to communicate with clients,
failing to account for and promptly provide client property, and failing to respond to the Bar.
See, e.g., In re Obert, 352 Or 231, 282 P3d 825 (2012) (Despite instructions from a trial judge
in a civil case that the judge would grant a motion for JNOV in favor of attorney’s client if one
was filed and a caution about when such a motion was due, attorney failed to timely file the
motion and instead filed a notice of appeal which deprived the trial court of jurisdiction. The
notice of appeal was defective, the appeal ultimately was dismissed, and attorney failed to
refile his post-trial motions timely. He also filed a second, untimely notice of appeal, intending
to argue that a criminal statute that permitted the late filing of a notice of appeal should apply
to his client’s civil case. Attorney was found to have engaged in a pattern of incompetence and
was suspended for 6 months.); In re Ifversen, 27 DB Rptr 150 (2013) (The attorney was
suspended for one year for failing to explain client’s options in pursuing her insurer or
accepting a settlement of her personal injury claims. Attorney also failed to inform client that
the statute of limitations would run on her claims, and, after they did, that he had not filed a
lawsuit or obtained a settlement.); In re Schaffner, 323 Or 472, 918 P2d 803 (1996) (The Court
suspended the attorney for 120 days—60 days each for failing to cooperate with the Bar and
knowingly neglecting clients’ cases for several months by failing to communicate with clients
and opposing counsel); In re Snyder, 348 Or 307, 232 P3d 952 (2010) (The court suspended
attorney for 30 days when he failed to return a personal injury client’s file materials, including
medical records, despite numerous requests from the client.).
Lastly, the sanction imposed is greater where an attorney is found to have violated
multiple rules. See, e.g., In re Schaffner II, 325 Or at 428 (imposing a two-year suspension for
neglect of client matters and failure to respond); and In re Recker, 309 Or 633, 789 P2d 663
Cite as In re Keeler, 31 DB Rptr 285 (2017)
302
(1990) (imposing a two-year suspension on a lawyer who neglected multiple client matters,
failed to respond to clients and the disciplinary authority, and engaged in conduct involving
misrepresentations).
77.
Consistent with the Standards and Oregon case law, the parties agree that Keeler shall
be suspended for one year for violations of RPC 1.1 [two counts]; RPC 1.3 [seven counts];
RPC 1.4(a) [six counts]; RPC 1.4(b) [two counts]; RPC 1.5(a) [three counts]; RPC 1.5(c)(3)
[four counts]; RPC 1.15-1(a) [three counts]; RPC 1.15-1(c) [four counts]; RPC 1.15-1(d) [two
counts]; RPC 1.16(d) [six counts]; RPC 5.3(a) [one count]; RPC 5.4(a) [one count]; RPC 5.5(a)
[one count]; RPC 8.1(a)(2) [four counts]; RPC 8.4(a)(4) [two counts]. The sanction shall be
effective November 1, 2017, or 60 days after this Stipulation is approved by the Supreme
Court, whichever is later.
78.
Keeler’s license to practice law shall be suspended for a period of one year beginning
November 1, 2017, or as otherwise directed by the Supreme Court (“actual suspension”),
assuming all conditions have been met. Keeler understands that reinstatement is not automatic
and that he cannot resume the practice of law until he has taken all steps necessary to re-attain
active membership status with the Bar. During the period of actual suspension, and continuing
through the date upon which Keeler re-attains his active membership status with the Bar,
Keeler shall not practice law or represent that he is qualified to practice law; shall not hold him
out as a lawyer; and shall not charge or collect fees for the delivery of legal services other than
for work performed and completed prior to the period of active suspension.
79.
Keeler acknowledges that he has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to his clients during the term of his suspension. Keeler represents, however, that he
closed his practice, he has no clients and he has no active client files.
80.
Keeler acknowledges that BR 8.1 formal reinstatement is not automatic on expiration
of the period of suspension. He is required to comply with the applicable provisions of Title 8
of the Bar Rules of Procedure. Keeler also acknowledges that he cannot hold himself out as an
active member of the Bar or provide legal services or advice until he is notified that his license
to practice has been reinstated.
81.
Keeler acknowledges that he is subject to the Ethics School requirement set forth in BR
6.4 and that a failure to complete the requirement timely under that rule may result in his
Cite as In re Keeler, 31 DB Rptr 285 (2017)
303
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Keeler to attend or obtain continuing legal education
(CLE) credit hours.
82.
Keeler represents that, in addition to Oregon, he also is admitted to practice law in the
jurisdictions listed in this paragraph, whether his current status is active, inactive, or suspended,
and he acknowledges that the Bar will be informing these jurisdictions of the final disposition
of this proceeding. Other jurisdictions in which Keeler is admitted: none.
83.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Supreme Court for consideration pursuant to the terms of BR 3.6.
EXECUTED this 3rd day of October, 2017.
/s/ J. Andrew Keeler
J. Andrew Keeler
OSB No. 043270
APPROVED AS TO FORM AND CONTENT:
/s/ Clayton H. Morrison
Clayton H. Morrison
OSB No. 742250
EXECUTED this 11th day of October, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey
OSB No. 060478
Assistant Disciplinary Counsel
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
304
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 16-101, 16-125, 16-127, &
) 16-128
DALE MAXIMILIANO ROLLER, )
) SC S065235
Accused. )
Counsel for the Bar: Amber Bevacqua-Lynott
Counsel for the Accused: None.
Disciplinary Board: James C. Edmonds, Chairperson
Lorena M. Reynolds
Fadd E. Beyrouty, Public Member
Disposition: Violation of RPC 1.2(a), RPC 1.3, RPC 1.4(a), RPC
1.4(b), RPC 1.5(a), RPC 1.5(c)(3), RPC 1.15-1(c), RPC
1.16(d), RPC 8.1(a)(2). Trial Panel Opinion.
Disbarment.
Effective Date of Opinion: August 30, 2017
ORDER OF DISMISSAL
On October 11, 2017, appellant was advised that his Request for Review would be
dismissed pursuant to ORAP 1.20(4) unless within 14 days he showed good cause why his
request for review should not be dismissed. As of this date, accused has not responded nor
shown good cause why the cause should not be dismissed. The request for review is dismissed.
/s/ Rives Kistler 11/09/2017 3:27 PM
Rives Kistler
Presiding Justice, Supreme Court
TRIAL PANEL OPINION
This matter came before the trial panel on April 10 and 11, 2017. The trial panel con-
sisted of James C. Edmonds, Chair (attorney), Lorena Reynolds (attorney), and Fadd Beyrouty
(public member).
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
305
The Oregon State Bar (hereinafter the “Bar”) presented several matters for con-
sideration by the trial panel. The following is the opinion of the trial panel regarding these
matters.
FINDINGS OF THE TRIAL PANEL
The disciplinary proceedings brought against Dale Roller involve four different clients:
Madera, Torrance, Pointer and Madden. For purposes of this opinion and evaluation of the
disciplinary rules, this opinion is broken into four sub-parts corresponding with the client and
the relevant, alleged rule violations relating to that client. This opinion is based on the evidence
and argument submitted at the hearing noted above and the submissions of the parties.
MADERA
In the spring of 2013, Benjamin and Irene Madera (hereinafter the “Maderas), needed
a lawyer to help renew their work “permits.” TR 105, 152. The Maderas wanted a Spanish
speaking lawyer. TR 151. They hired Roller.
At the first appointment in May of 2013, Roller filled out a “new client information
sheet.” TR 107–108; see Exhibit 1. The form is in English. Mr. Madera does not recall
receiving the form in Spanish. TR 108. Benjamin Madera filled in the information on the top
of the form. TR 107–108. Roller filled out the remainder. TR 108.
At the first meeting, the Maderas asked Roller to renew their work permits to allow
them to continue working in the United States. TR 109, 152. Mr. Madera did not know what
type of form was necessary. TR 109. Roller explained that it would be better for the Maderas
to pursue a U Visa. TR 152. According to the Bar, a U Visa can be pursued by victims of
crimes who are working with law enforcement in the investigation or prosecution of criminal
activity. See OSB Trial Memorandum at 4, fn 2. A U Visa application requires verification by
a law enforcement official to “vouch” for the applicant’s assistance. The Maderas did not
understand the difference between a U Visa and any other document necessary for them to
retain work status. TR 152–153, 112.
At the first meeting, the Maderas paid Roller $1,500. TR 153. Roller cashed the check
and immediately considered it to be “his” money. TR 306.
Roller asked the Maderas to provide information regarding law enforcement contacts
who could verify Mr. Madera’s participation and possible qualification for a U Visa. TR 112–
113. Roller had never handled a U Visa application. TR 305.
Over the next several months, Roller filled out several versions of the paperwork for a
U Visa. He indicated that he would let the Maderas know when to file it. TR 308, 309.
The first set of forms came to the Maderas on January 21, 2014. TR 114; see Exhibit
3. Mr. Madera made some corrections on the forms. TR 114. The forms were apparently
corrected and resubmitted to Roller.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
306
A new set of what appeared to be the same forms came to the Maderas in late May,
2014. Mr. Madera signed the forms on May 31, 2014. TR 117; see Exhibit 4.
On June 24, 2014, the forms were again filled out and Madera was again asked to sign.
Mr. Madera complied. See Exhibit 5.
Irene Madera called Roller at least ten or eleven times over the course of his repre-
sentation. TR 154. Roller sent papers to the Maderas at least three times. TR 154. Irene Madera
asked Roller why they were receiving the same papers over and over. TR 154. Roller claimed
that the papers were not the same and needed to be corrected. TR 156.
Eventually, Irene Madera called Roller and told him she and her husband were going
to a different lawyer. TR 156. Roller was upset. TR 156. She tried to call Roller again and he
would not return her calls. TR 156.
Maderas eventually wrote to the Bar requesting reimbursement of the $1,500 paid to
Roller. This document was received in September, 2014. Exhibit 6. A formal complaint was
signed by Irene Madera on September 22, 2014. Exhibit 9.
Roller claims that he was unable to file the U Visa application because he could not
acquire the appropriate verification from law enforcement. Roller Closing Argument at 4. At
the hearing, Roller entered into evidence a report prepared by an investigator for the Client
Security Fund of the Oregon State Bar. See Exhibit A. The CSF apparently investigated the
Maderas’ request for reimbursement of the $1,500 fee paid to Roller. A letter from Executive
Director Sylvia Stevens dated May 18, 2015, states that the CSF Committee “concluded that
the work was performed . . . (and) . . . failure to obtain a desired result was outside lawyer’s
control.” As a result, no money was paid by the CSF. The CSF investigator’s report concludes
that “it appears that legal services were provided by Roller but after a reasonably diligent effort,
a law enforcement officer willing to vouch for Madera could not be secured.” Exhibit A.
Mr. Madera testified that he later contacted law-enforcement officials, who stated that
Roller did not make contact with them. TR 113.
Maderas eventually went to another lawyer. Irene Madera testified that the lawyer
explained the deadline had passed and there was nothing he could do. TR 158. The date of
this contact may have been August 18, 2014. Exhibit A, Page 2 submitted by Roller is a copy
of the Client Security Fund (CSF) investigation of this matter. The “Investigative Report”
identifies contact with a lawyer, Jonathon Timez, who spoke to Maderas on August 18, 2014.
According to the investigator, Timez told them it appeared that Roller had done everything
necessary other than obtain a police officer’s declaration. Exhibit A, page 2.
The Maderas never received a U Visa or a renewal of their work permits. TR 157. Their
employment cards expired. TR 157–158.
Roller did not return any money to Maderas. TR 157. Despite repeated efforts to contact
Roller, he did not respond to the Maderas. See Exhibit 9.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
307
Roller testified that he was hired to obtain a U Visa and nothing more. TR 375. Roller
points to his handwritten notation to this effect on the “new client information sheet.” See
Exhibit 1.
RPC 1.3 - A lawyer shall not neglect a legal matter entrusted to the lawyer.
Neglect of a legal matter is evaluated by the context of the act to be performed. An
urgent matter may require immediate attention. See In re Meyer, 328 Or 220, 970 P2d 647
(1999). Neglect may also occur over an extended period of time if there was a repeated pattern
of negligence. See, e.g., In re Purvis, 306 Or 522, 760 P2d 254 (1988).
There is some confusion as to whether Roller was to get a U Visa or a work permit.
However, there is no question that neither of these documents were obtained, or even applied
for, during the time Roller represented Maderas. Roller’s “work” for Maderas encompassed a
time period longer than one year. Maderas first contacted Roller in May of 2013. The last set
of papers produced by Roller was signed by Mr. Madera in June, 2014. Maderas contacted a
new lawyer sometime in the summer of 2014 possibly in August. The Bar was contacted in
September of 2014.
The testimony of both Mr. and Mrs. Madera was consistent: They wanted Roller to
renew their ability to continue working in the United States. They did not understand what
forms needed to be filled out to accomplish this request. Roller promoted the idea that a U Visa
could be pursued. This testimony was consistent and was more plausible than the Accused’s
testimony. Roller claims that he was hired for the sole purpose of acquiring a U Visa. TR 374–
375. He supports this conclusion by pointing to the “New Client Intake Form.” Exhibit 1.
However, he has no memory of the Maderas in his office nor does he recall what was discussed.
TR 375–376. Moreover, the Accused testified that he does not keep notes from client meetings.
It seems unlikely that the Maderas would come to Roller and ask for nothing more than
a U Visa. The Maderas wanted to retain their right to work in the United States. They paid
Roller a significant sum of money for his expertise and relied upon his judgment to identify
what was needed to continue working, whether a U Visa or a work permit. It is clear that a U
Visa does not appear to be a well-known or well used avenue to pursue work status. Roller had
never applied for a U Visa on behalf of a client. For the Maderas to direct Roller to pursue a U
Visa and nothing else seems out of character with the personality and sophistication of the
individuals who testified at the hearing.
The Panel questioned Roller’s credibility based upon his hostile attitude toward
Maderas. During Mr. Medera’s testimony, the Accused was muttering inaudible comments
under his breath. He mouthed words to one of the Panel members. At times, he spoke to the
witnesses in Spanish while interrupting the interpreter. He aggressively argued with the
witnesses. At one point during Mr. Medera’s testimony, the Accused walked in front of counsel
table towards Mr. Madera in an aggressive and angry manner. Roller was moving towards the
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
308
witness with his finger pointed at him, asking “You want to go?” The Panel Chair was con-
cerned enough for the safety of the people in the room that he stood up, raised his voice, and
directed Roller to move away from the witness. TR 131. Others in the room were visibly shaken
by this encounter and a recess had to be called.
Based upon the testimony presented at the hearing, the Panel believes Maderas were
asking Roller for help in renewing their work permits and did not limit Roller’s work to the U
Visa alone. Mr. Madera testified that he was not exactly sure what was needed to continue his
right to work in the United States. This was confirmed by Mrs. Madera. Neither understood
the requirements for a U Visa.
Roller points to a determination by the Client Security Fund denying Maderas claim
for reimbursement. See Exhibit A. He argues that this exonerates him from any neglect.
Enclosed within that letter, the Oregon State Bar states “the committee concluded that work
was performed; failure to obtain desired result was outside lawyer’s control.” The investigative
report attached to that statement concludes that services were performed by Roller, but he was
unable to get the U Visa based upon the inability to obtain a signature from a law enforcement
officer willing to vouch for Mr. Madera.
The conclusion of the Client Security Fund is based upon two factors: 1) Any loss being
claimed by the Madera’s must result from “an established lawyer-client relationship” and 2) a
“failure to account for money or property entrusted to the lawyer in connection with the
lawyer’s practice of law or while acting as a fiduciary in a matter related to the lawyers practice
of law.” It is clear that the determination of the CSF was framed primarily around accounting
for the money paid to Mr. Roller. Although the bar notes that some work was performed by
Mr. Roller, this was a minor determination within the greater context of the CSF decision. It is
clear that the CSF was not evaluating Mr. Roller’s ethical responsibilities with regard to the
adequacy of the services performed. Instead, the CSF was examining the lawyers accounting
for the money provided by the client in the context of work being performed.
There is no question that work was performed by Mr. Roller and money was paid to
perform that work. However, in evaluating whether or not there has been neglect of a legal
matter entrusted to Mr. Roller, we find that there was such neglect. Roller failed to accomplish
any task entrusted to him by the client. On three separate occasions, he sent paperwork to the
Maderas without achieving any advancement of their cause. The “work” took over a year to
accomplish. At some point, the Maderas are owed an explanation as to why the work is taking
so long to perform. Based upon Roller’s testimony, the work was delayed due to his inability
to obtain a declaration from a law enforcement official. Certainly, reasonable delays may
prevent this from happening immediately. However, it is expected that efforts to speak with an
officer could be made within a few months of the initial client contact. If there was no positive
response from an officer, the lawyer’s duty is to let the client know about the difficulty so that
the client can either assist in making contact or seek a suitable alternative remedy.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
309
The Maderas came to Roller to extend their opportunity to continue working legally in
the United States. It is clear that Roller was unable to obtain the U Visa. Once that avenue was
foreclosed, he had a responsibility to clearly inform the Maderas that this was not possible. At
that point, the client can ask the lawyer to continue his efforts, or end the relationship. If he
could no longer help the Maderas, he should have given them the opportunity to employ
someone who could help. This should have taken place before the opportunity to renew their
work permits had expired rather than a continuing failure to obtain a result lasting for over one
year. Roller neglected the legal matter by failing to complete the work or to inform the Maderas
of his inability to continue to work for them.
RPC 1.4(a) - A lawyer should keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.”
RPC 1.4(b) - A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
To keep a client reasonably informed requires the lawyer to adequately communicate
regarding the steps necessary to pursue the desired result. At a minimum, there was confusion
in the communication between Roller and the Maderas. Roller claimed that a U Visa was
necessary. The Maderas clearly did not understand what was necessary but wanted to retain
their work status. A lawyer cannot be faulted for attempting to explain a complicated matter
when a client may not have the capacity to understand the issues involved. Nevertheless, the
Maderas left it to the lawyer to identify and design a method to achieve the desired result.
Whether Roller was employed merely to obtain a U Visa, or for the broader purpose of
renewing the Maderas’ work permits, Roller did not keep the Maderas informed of his
progress. There are contradictions between Roller’s testimony and the Maderas’ testimony
regarding whether law enforcement officials had been contacted. Even if there is an actual
dispute over whether the officials were contacted, it is clear that Maderas did not know what
efforts were made by Roller to contact law enforcement. Roller had a responsibility to inform
the Maderas regarding the status of their case and, specifically, whether he was in contact with
law enforcement officials. He had an obligation to inform them of this barrier and offer them
alternatives for obtaining what was needed. Instead, the Maderas did not understand the
complications experienced by Roller until it was too late to renew their work permits because
he failed to inform them of the situation.
In addition, the Maderas came to Roller because they needed to do something to
continue their ability to work. Even if Roller thought he was only pursuing a U Visa, he had
an obligation to keep them apprised of his efforts when it was clear that he failed to complete
that assignment. At a minimum, he should have told the Maderas that he was unsuccessful in
obtaining a U Visa in order for the Maderas to make decisions regarding what else could be
pursued to renew their work permits. This may have resulted in Roller discontinuing his
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
310
representation of the Maderas, or it may have notified the Maderas that they needed to aggres-
sively pursue law enforcement officials to obtain approval. Instead, he failed to inform the
Maderas of his lack of progress and the Maderas were required to go to another lawyer for
help. By that time, the Maderas learned that nothing more could be accomplished. The con-
sequence of this cannot be overstated. The harm is irreparable.
RPC 1.5(c)(3) - A lawyer shall not enter into an arrangement for, charge or collect a
fee a flat fee agreement denominated as “earned on receipt” “nonrefundable” or in similar
terms unless it is pursuant to a written agreement signed by the client which explains that: (i)
The funds will not be deposited into the lawyer trust account, and (ii) the client may discharge
the lawyer at any time and in that event may be entitled to a refund of all or part of the fee if
the services for which the fee was paid are not completed.
The form used by Roller did not comport with RPC 1.5. The form did not identify that
if the lawyer failed to perform work, the client may be allowed a refund of all or part of the
fee.
Roller testified that he was using the Bar’s form at the time of his meeting with the
Maderas.
We do not find there is adequate information to show that Roller intentionally or
willfully violated RPC 1.5(c)(3). If in fact the Bar provided these forms, Roller may have been
negligent in not confirming that the forms were adequate. However, there is no showing that
his conduct was willful. The Bar did not put on any evidence to show what forms were in use
at the time and whether those forms compiled with the applicable rules. As a result, there was
not sufficient evidence for the Panel to conclude that this was a violation.
RPC 1.16(d) - Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as … refunding any advance
payment of fee or expense that he has not then earned or incurred.
As noted above, there is no question the Maderas did not receive a renewed work permit
or U Visa. As noted by the Bar, the Maderas hired Roller to “obtain” an outcome. This required
more than merely filling out forms that were never filed.
Roller claims that a flat fee was paid for this work and since he did perform work in
response to their request, no refund is necessary. For his work, Roller was paid $1,500. When
it was clear that he could not obtain the U Visa, he had a responsibility to identify that fact for
the Maderas and suggest an alternative option or to withdraw from representation. At that
point, some portion of the flat fee should have been refundable since the work was not
completed.
Roller refused to refund any of the fee. This is a violation of RPC 1.16(d).
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
311
TORRANCE
Glen Torrance is retired and lives in Lincoln County, Oregon. TR 167–168. His
retirement income is based off a pension, social security, and rental income from 20 rental
units he owns with his wife. TR 168.
In January of 2014, Torrance was named as a Defendant in a Summons and Complaint
filed in Lincoln County Circuit Court. Plaintiff was the Oregon Department of Transportation
(ODOT). TR 169; see Exhibit 23. Torrance was named as a defendant along with several other
local property owners in a condemnation action for work to be performed by ODOT on
Highway 101 in Lincoln City. Exhibit 23. Torrance owned property abutting the back portion
of a larger parcel of land owned by “Seida Land and Livestock” (hereinafter Seida). See Exhibit
41; TR 48–49. Seida’s property runs along the western edge of Highway 101 and is shown as
Lot 13602 on Exhibit 41. TR 95. The Torrance property is 13403 and 13406. TR 95. It does
not touch Highway 101. ODOT planned to expand Highway 101 along the front or east side
of the Seida property which would also affect the side street along the south side of the Seida
property. Torrance’s property touches the west side of the Seida property with an easement
along that property line allowing access to the side street. TR 95–96. The side street easement
ran parallel to Highway 101, appurtenant to the back portion of Torrance’s properties.
Torrance hired Roller to handle this matter on Torrance’s behalf. TR 171. Roller was a
tenant in one of Torrance’s buildings in Lincoln City. TR 225. Torrance wanted to “give Dale
a chance” even though he did not know if Roller had handled condemnation actions in the past.
TR 171.
Torrance initially asked Roller if he would agree to split the proceeds of any recovery
as Roller’s fee. TR 177. Roller declined the offer and instead wanted to bill at an hourly rate
of $250 per hour. TR 175. Roller assured Torrance that the hourly fee would not ultimately
impact Torrance as the State would ultimately pay Roller’s legal fees. TR 173.
Torrance believed that Roller’s fees would not exceed $2,500. In any event, he was not
concerned because Roller had assured him the State would be responsible for all the fees. TR
175. No fee agreement was signed. TR 174. Torrance gave Roller a $2,000 retainer. TR 173,
225.
Torrance had very little communication with Roller over the next several months while
the case was pending. TR 178, 180.
Roller filed a Notice of Appearance on behalf of Torrance. See Exhibit 24.
Nichole DeFever testified at the hearing. She is the Department of Justice lawyer who
handled the condemnation matter for the State. TR 47–48. Upon receiving the Notice of
Appearance, Nicole DeFever sent an e-mail to Roller indicating that mediation with retired
Judge Sid Brockley was scheduled for April 22, 2014. See Exhibit 24A. She invited Roller to
attend on behalf of the Torrances. Roller came to the mediation and spoke briefly with DeFever
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
312
and Judge Brockley. Mediation was terminated without any substantive discussions regarding
Torrance. TR 56.
On or about April 30, 2015, the State filed an offer of compromise in the amount of
$450,000. TR 60; see Exhibit 26. The offer was a joint offer to all defendants who appeared in
the proceeding. Only Seida and Torrance had filed appearances. TR 60–61.
The offer was accepted by Seida and Torrance on May 7, 2014. See Exhibit 26. Mr.
Roller confirmed that Torrance would receive $5,000 of the $450,000 amount. See Exhibit
26A. The offer of compromise, if not accepted by the defendants, cuts off any attorney fee
claim by the property owners if the property owners if the case is settled or the property owners
do not get a better result at trial. TR 44–46.
Roller communicated the $5,000 offer to Torrance on May 7, 2014. TR 182–183.
Torrance told Roller to accept the money and close the file. TR 182–183. Despite this direction,
Roller wanted to continue with the case in some capacity. TR 227.
On May 9, 2014, the State sent a proposed form of judgment to the parties plus a request
for each party to provide confirmation and support for their attorney fees. See Exhibit 26A.
The attorneys for the parties conferred, but could not agree on the form of judgment.
The State notified the Court of this dispute on June 5, 2014, and provided a copy of the State’s
proposed form of judgment. See Exhibit 26B. Pursuant to the letter to the Court, Defendants
were to provide their own proposed version of the Judgment to the Court. Id.
On June 5, 2014, the attorney representing Seida filed an answer with counterclaims.
See Lincoln County Circuit Court docket index, Exhibit 21 at 5 of 10. Seida was asking for
additional nonmonetary accommodations from the state in the form of access to and from his
property from Highway 101. TR 72. These requests did not directly involve the property owned
by Torrance. TR 72. The state did not accept Seida’s requested relief. TR 71.
On June 10, 2015, the attorneys appeared for a status conference, at which DeFever
clarified that Torrance would accept $5,000 to settle the case. TR 64. The only continuing
dispute involved Seida’s counterclaims. TR 64. On June 10, 2014, DeFever offered Roller an
opportunity to enter a limited judgment for Torrance in order to settle that portion of the case
and receive the $5,000 payment. TR 63–64. Despite these discussions, Roller did not agree to
the filing of a limited judgment.
DeFever prepared motions to strike or dismiss the counterclaims filed by Seida. TR
64–65. On or about June 24, 2014, she requested an extension from Seida and Torrance for
additional time to file the motions. See Exhibit 27. Presumably Seida agreed to the extension.
Id. Roller, on behalf of Torrance, would agree but only on the condition that his clients “may
be awarded reasonable attorney fees and costs beyond the date of acceptance of the offer of
compromise.” Id. DeFever refused and again offered to send a limited judgment for Torrance.
Id.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
313
Torrance had no further communication with Roller from May 8 until September 3,
2014. TR 185–186. Roller continued to review documents and to perform work on behalf of
Torrance during this time. Roller did not provide a bill for his services to Torrance during this
time, even though his website states that he provides monthly billing statements to clients.
On September 3, 2014, Torrance received an email from Roller regarding a “settlement
document.” See Exhibit 27A; TR 185–187. Roller asked Torrance to sign an “Additional
Settlement Agreement” that included the State and Seida. See Exhibit 28; TR 187–188. Roller
met with the Torrances. Both Mr. and Mrs. Torrance were not happy upon learning that Roller
had continued working on the file after they instructed him to accept the settlement amount.
TR 187–188; see Exhibit 28. During this meeting, Roller explained that the Torrances “could
get more” from the State. TR 228. Roller wanted another $2,000 and an agreement that
Torrances would pay his fees “if ODOT didn’t.” TR 228. The Torrances threw the papers on
Roller’s desk and walked out. TR 228–229.
A Stipulated General Judgment was eventually negotiated and signed by Seida on
September 11, 2014. See Exhibit 29. Roller signed the judgment on behalf of the Torrances on
September 12, 2014. See Exhibit 29.
On September 29, 2014, Roller filed an attorney fee petition as part of his claim for
fees and costs. See Exhibit 30. He claimed $19,350 in fees. See Exhibit 30. The state objected.
See Exhibit 31. The State argued that $7,950 of the fee amount came after service of the offer
of compromise. See Exhibit 30.
On January 29, 2015, the Court heard argument on the attorney fee claim. See Exhibit
31B. The court awarded $11,000 in attorney fees to Torrance based on Roller’s submission.
See Exhibit 31B. Due to illness of the judge and some administrative difficulties, the
supplemental judgment awarding attorneys fees did not get filed until July, 2015, but was
entered nunc pro tunc on January 29, 2015. See Exhibit 31B.
Roller’s next communication with Torrance was an email on August 1, 2015. TR 191.
See Exhibit 32. Roller told Torrance the Court awarded $11,000 in fees. Roller went on to tell
Torrance that as of the offer of compromise he had accrued $13,686 in fees. See Exhibit 32.
Torrance again was upset and demanded an itemized statement of fees. TR 191–192. See
Exhibit 32. In that communication, Roller claims that Torrance had agreed to additional fees
through an “additional contract.” See Exhibit 32. Torrance expressly denies signing an addi-
tional contract. TR 192–193.
On August 4, 2015, Roller sent Torrance a “Notice of terminatio
n of representation and
statement of fees.” See Exhibit 33.
Torrance was given a bill from Roller asking Torrance to pay over $19,000 in billed
fees. See Exhibit 34. This is the first time Torrance received a billing statement from Roller.
TR 193.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
314
Torrance never received the $11,000 payment from the State. TR 191–192. On or about
July 9, 2015, the check was deposited into Roller’s account and used by Roller. TR 325–332;
see Exhibit 90.
The billing statement from Roller shows a number of large time entries. For example,
during the initial stage of representation, Roller billed for over 21 hours of research time. TR
311; see Exhibit 34. Roller admits that he knew nothing about condemnation when he agreed
to handle this case. TR 309.
The bill also shows travel time from Salem to Lincoln County, despite the fact that
Roller had a Lincoln City office. TR 329–332.
The billing statement does not account for the $2,000 retainer. TR 201.
No signed fee agreement was produced at the hearing. TR 332. The Bar produced
Roller’s unsigned agreement. See Exhibit 35. Roller testified that he gave the original to the
Bar when it was performing its investigation. TR 332–334. The fee agreement applies a 20%
per month interest charge for amounts past due over 30 days. TR 333.
Roller billed 4.1 hours for appearance at a hearing on June 10, 2014, in Newport. TR
342; see Exhibit 34, at 3. He testified that he “probably” appeared for the hearing. TR 343.
However, the Court docket shows that this hearing was by telephone. TR 344; see Exhibit 21.
Roller could not explain the discrepancy. TR 345.
Roller admitted that he did not keep detailed time records. TR 376–378. Instead, to
create Exhibits 30 and 34, he recreated the events from memory and review of the court’s
docket sheet. TR 376–378.
RPC 1.2(a) - A lawyer shall abide by a client’s decisions concerning the objectives of
representation and as required by Rule 1.4 shall consult with the client as to the means by
which they are to be pursued. A lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision
whether to settle a matter.
Glen Torrance hired Roller despite knowing that Roller had no experience with
condemnation actions. Both Glen Torrance and his wife testified that they initially hired Roller
to see if there was some payment due from the condemnation action. Glen Torrance believed
that the action would net him around $5,000. Torrance believed the matter could be resolved
with expenditure of approximately $2,500 in attorney’s fees.
Within a few weeks of being retained, the State made an offer of compromise allocating
$5,000 to Torrance. Torrance told Roller to take the money and end the case. Despite this
direction, Roller continued to handle matters related to the case.
There may be some justification for Roller to continue to work on the case since the
Seida portion of the case had not yet settled. Seida continued to make demands and file papers
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
315
that could conceivably impact Torrance. Seida’s lawyer had not worked out a complete resolu-
tion with the State. Roller cannot be completely faulted for continuing to review the filings
made by the Seida in order to ensure that there is no further impact on Torrance’s property.
Nevertheless, Roller’s conduct was contrary to his client’s instructions to stop working
on the matter. Roller’s failure to consult with Torrance to determine if additional work should
be performed amounts to a violation of the rule. In May of 2014, Torrance told Roller to take
the $5,000 and end his work. The State offered a limited judgment with the express purpose of
dismissing Torrance from the law suit. This would have allowed the State to continue its
dispute with Seida while relieving Torrance from any ongoing involvement with the case. At
that time, Roller was aware that it was the State’s position he was not entitled to additional
attorney fees for his involvement. Torrance had already provided clear direction to Roller that
he was at the end of his authority to act on behalf of the client. If Roller felt it necessary to
continue his involvement in the battle between Seida and the State, Roller should have
informed Torrance of the risk and cost of accepting the limited judgment versus remaining
active in the case. Instead, Torrance heard nothing from Roller through most of the summer of
2014.
In September of 2014, Roller asked Torrance to come to his office to review some
additional documents that needed approval. An “additional settlement agreement” had been
prepared to resolve the matter with both Seida and the Torrance since they were still active
parties in the case. When Torrance went to Roller’s office in September, he and his wife refused
to sign the additional settlement agreement. They also refused to sign an additional legal
services contract allowing Roller to continue work.
Roller violated RPC 1.2(a) by failing to consult with Torrance after the matter was
settled for $5,000. He unilaterally chose to continue representation presumably to bill addi-
tional hours that hopefully would be paid by the State. Roller had an obligation to discontinue
representing Torrance after he was directed to take the settlement. He should have stopped
work or advised his client regarding the need for continued representation with a request for
permission to continue. If the client refused to consent to additional work, Roller must stop or
withdraw.
RPC 1.5(a) - A lawyer shall not charge or collect an illegal or clearly excessive fee.
Roller charged $19,350.00 in legal fees. This amount included a number of items that
were clearly excessive.
Roller charged 21.7 hours for legal research ($5,425) to provide a base of knowledge
to handle a condemnation action. It is clear that Roller had no prior experience. A lawyer may
represent a client in an area of the law in which the lawyer has no prior experience. To do so,
the lawyer must make a reasonable effort to apprise himself of the relevant law in order to
competently handle the matter. This preparation should not to be charged to the client unless
the client expressly agrees to pay for such training. In this case, charging Torrance a fee of
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
316
$250 an hour for over 20 hours of work, to learn the basics of a condemnation defense,
especially in light of a recovery of $5,000, is excessive.
Roller also claimed excessive fees for travel time. Roller has an office in Lincoln City
Oregon. Round trip travel from Lincoln City to Newport is approximately two hours. On at
least two occasions, Roller charged Torrance over four hours for trips to Newport. Roller
testified that these trips were from his Salem office. This is an excessive fee given that Roller
has an office in Lincoln City and the attorney client relationship was arranged through that
office.
The total amount of fees charged by Roller is also clearly excessive. Roller claimed
over $19,000 when he filed his claim for attorney’s fees with the Court. RPC 1.5(a) provides
several factors to consider when evaluating the reasonableness of a fee. Two of these factors
are particularly important when reviewing Roller’s fees:
(4) the amount involved and the result obtained; and
(5) the time limitations imposed by the client or by the circumstances.
Roller argues that the additional work was necessary to represent Torrance. The Panel
does not find this to be credible. Torrance went into this condemnation proceeding with a
limited interest in determining if he was entitled to some immediate payment. The party pri-
marily affected by the condemnation action was Seida. Initially, Torrance asked Roller to take
this case on a contingent fee basis; i.e. Torrance and Roller would split any recovery. Torrance
clearly understood and conveyed to Roller that this matter was not going to produce a
significant return for Torrance. Despite this intention, Roller demanded that the case be billed
by the hour telling Torrance the State would pay the fee.
It is clear that at some point, Roller lost touch with the “amount involved and the result
obtained.” The fee charged to his client became disengaged from the reality of what he could
obtain for the client. At some point, Roller’s charges were generated not for the client’s interest,
but instead as a method to “churn” the file to obtain a greater return for himself. Roller did not
see this as unreasonable since he always saw the State as the party ultimately responsible for
his fees. When the State objected to the fees and refused to pay the full $19,000, Roller turned
the fee claim back against Torrance. By this time, he clearly had exceeded a reasonable fee.
Torrance had “imposed” a time limitation that Roller earlier disregarded. Torrance wanted the
matter done. Roller continued representation despite his client’s limitation. The fee charged
was no longer reasonable under these circumstances.
One final note. In discussing his billing statement, Roller admits that he created the
statement after the fact. He did not keep time records nor identify exactly what work was per-
formed and when that work was performed. There were questions as to whether Roller attended
a hearing on June 10, 2014. Roller charged 4.1 hours to “attend” this hearing. See Exhibit 34.
The court docket sheet indicates that this was a telephone hearing scheduled to last no more
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
317
than 30 minutes. See Exhibit 21. When questioned at the hearing, Roller could not explain the
discrepancy. TR 345. Based on the record, the panel finds that Roller charged the client for
personal attendance, including travel time, for a matter that was handled on the phone.
Finally, when Roller sent his billing statement, he did not offset the total amount by the
$2,000.00 retainer paid by Torrance. In addition, the fee amount paid by the state, $11,000.00,
went directly to Roller. Torrance did not receive the offset for that amount. Demanding
payment from the client for $19,000 when the client had already paid $2,000 and the state had
paid $11,000 was clearly inappropriate and excessive.
These items amount to a clear disregard and violation of RPC 1.5(a).
POINTER
In February of 2012, Kelly Pointer was looking for a bankruptcy attorney. She
eventually found Mr. Roller. Roller said he was willing to do the bankruptcy and cover all fees
and costs for $1,000.00. TR 232-233.
Pointer had previously filed bankruptcy. Roller was made aware of this fact in the initial
phone call. TR 233. Pointer met with Roller on February 14, 2012. TR 233. No fee agreement
was signed. TR 234. Roller merely had Pointer fill out a client intake form. See Exhibit 51.
Roller never told her he would do the work on a “flat fee” basis. TR 235. Roller cashed the
check February 25, 2012. See Exhibit 51.
Pointer gave Roller many documents at the first meeting or shortly thereafter. TR 236.
Over the course of the next several months, Pointer continued to correspond with Roller
regarding her bankruptcy. See Exhibit 52. On April 5, 2012, Roller indicated that he would be
scanning all the original documents and returning them to her by the end of the week. TR 237–
238; see Exhibit 52. She needed the documents to apply for food stamps. TR 237. She did not
receive the documents.
On May 1, 2012, Roller asked Pointer when she last received a discharge of bankruptcy.
See Exhibit 52. Pointer responded that Roller had all of her bankruptcy documents. See Exhibit
52.
On May 28, 2012, Roller indicated that Pointer would need to wait 8 years after the last
discharge from bankruptcy. See Exhibit 52. Pointer responded that she wished she had known
this before she paid for his service. See Exhibit 52. Roller indicated that he would need to do
more research to determine the exact date when she could file. TR 241; see Exhibit 52.
By July 9, 2012, Pointer still had not heard anything from Roller. See Exhibit 52. She
noted collection calls were “overwhelming” and she would need to disconnect her phone if
this could not be resolved in bankruptcy. See Exhibit 52. Roller responded August 17, 2012,
stating that he could meet her next week. See Exhibit 52. There was confusion about the time
and the ability to meet.
See Exhibit 52.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
318
They finally met in September of 2012. TR 243. Roller told Pointer that she would need
to wait until 2013 to file again. TR 245. He did not offer to give her money back. TR 245.
Pointer waited almost a year and emailed Roller on June 14, 2013, asking for help to
file in September. See Exhibit 54. Roller responded on September 12, 2013, asking Pointer to
schedule an appointment. See Exhibit 54. Roller sent an e-mail September 24, 2013, asking
Pointer to bring certain information, including a check for $306 for the bankruptcy court “filing
fee.” See Exhibit 54. Pointer responded that when Roller was originally hired she paid $1,000,
which covered the filing fee. See Exhibit 54. An appointment was scheduled for October 16,
2013. See Exhibit 54. The result of the meeting was a request by Roller for more information
from Pointer. TR 250–251.
At some point, Pointer explained that she could not pay the $306 filing fee. TR 252.
Roller indicated that she could avoid paying the filing fee if she agreed to represent herself.
TR 252. He eventually provided her with forms to do the same. See Exhibit 59.
Pointer last communicated with Roller in November of 2014. See Exhibit 56. In June
of 2014, Pointer attempted to contact Roller to get a refund for her unfiled bankruptcy fee of
$306. See Exhibit 60. She indicated that she no longer needed his services.
Pointer went to another attorney and paid $1,275.00 in fees and $306.00 in court costs
to receive a bankruptcy discharge in a short amount of time. TR 256.
Roller never returned any money. TR 257.
RPC 1.4(a) - A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.
RPC 1.4(b) -A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Roller was hired by Pointer in February of 2012. At that time, she paid $1000 for work
to be done by Roller. The initial question posed to Roller was when Pointer could file
bankruptcy given that she had previously filed a bankruptcy. Pointer gave Roller sufficient
information to answer this question at their first meeting. By that time, Pointer had paid the
$1,000 fee.
Pointer followed up on this question and the status of her matter in February, March,
April, and May. Roller again asked her when she had last filed bankruptcy. Pointer replied that
she could not recall, but that Roller had all of her paperwork.
Based on testimony and exhibits, Roller did not respond to this question until approxi-
mately May 29, 2012. He explained that it would be September of 2013 before she could file
again.
Roller’s inability to answer this preliminary and seemingly basic question violates both
RPC 1.4(a) and RPC 1.4 (b). Roller failed to “promptly comply” with Pointer’s reasonable
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
319
requests for information regarding her bankruptcy including the fundamental question of when
she could next file. Furthermore, his inability to answer this question during their first meeting
made it impossible for Pointer to determine if she wanted to hire Roller and pay him a $1,000.
Roller notes that in late 2013 and through much of 2014 he was ill and taking heavy
medication. During this time, Roller did not inform Pointer that he was unable to proceed with
the work he was hired to do and he did not provide for anyone (another attorney or support
staff) to follow up with his clients.
Generally, when a lawyer is unable to perform work, there is a duty to make an arrange-
ment for someone else to respond to client inquiries. See In re Snider, 348 Or 307, 232 P3d
952 (2010); In re Koch, 345 Or 444, 198 P3d 910 (2008).
Roller’s conduct violates RPC 1.4(a) and RPC 1.4(b).
RPC 1.5(c)(3) - A lawyer shall not enter into an arrangement for, charge , or collect a
fee denominated as “earned on receipt” “non refundable” or in similar terms unless it is
pursuant to a written agreement signed by the client which explains that (i) the funds will not
be deposited into the lawyer trust account as (ii) the client may discharge the lawyer at any
time and in that event may be entitled to a refund of all or part of the fee if the services for
which the fee was paid are not completed.
RPC 1.15-1(c) - A lawyer shall deposit into a lawyer trust account legal fees and
expenses that have been paid in advance, to be withdrawn by the lawyer only as fees or earned
or expenses incurred, unless the fee is denominated as “earned on receipt” “non-refundable”
or similar terms in compliance with rule 1.5(c)(3).
There is no evidence that Roller entered into a written flat fee agreement with Pointer.
There was testimony that Roller quoted a flat fee. However, no written agreement was pro-
duced. This is a clear violation of the rule.
Roller’s response is that even if he had entered into a written agreement at the time, he
would have been using the Bar’s form which was apparently non-compliant. Roller claims that
this amounts to a waiver of any right to prosecute him for this deficiency.
This argument is without merit. Roller admits that he did not have a flat fee agreement
with Pointer. The Bar does not waive its right to prosecute based upon speculation regarding
an event that did not take place.
Roller also asserts that the bottom half of his client-intake form is an “abbreviated
written fee agreement.” See Exhibit 51. This is spurious. The lower half of the form specifically
states that it is “For Office Use Only.” There is no indication that this form was given to Pointer
as a fee agreement. Furthermore, the writing in this section of the form merely acknowledges
the receipt of $1,000 and “pay in full.” This is not a fee agreement.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
320
Roller’s conduct violates RPC 1.5(c)(3). This also leads to a violation of RPC 1.15-
1(c). There was no written fee agreement. Roller had a responsibility to deposit the money into
his trust account to be withdrawn only as fees were earned. An oral agreement regarding a
retainer and whether it is non-refundable does not provide a basis for an attorney to treat the
client’s funds as his own. See In re Fadeley, 342 Or 403, 153 P3d 682 (2007).
RPC 1.16(d) - Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interest, such as . . . refunding any advance
payment of fee or expense that he has not earned or has been incurred.
Upon termination of the attorney-client relationship, Roller had an obligation to return
any “advance payment of fee or expense that has not been earned.. . .” Pointer requested return
of the $306 filing fee. Roller did not return this amount. This is a violation of RPC 1.16(d).
RPC 8.1(a)(2) - A lawyer in connection with a disciplinary matter shall not knowingly
fail to respond to a lawful demand for information from a disciplinary authority.
The bar gave significant notice to Roller regarding Pointer’s complaint. Two letters
[Exhibit 67 (March 3, 2016) and Exhibit 68 (March 25, 2016)], a phone message [Exhibit 71
reference in e-mail], and an e-mail follow-up [Exhibit 71] culminated in Roller claiming that
he did not see “either” of the letters. Roller responded on April 21, 2016, by email and a
voicemail message to the Bar. Roller claims a lack of memory.
RPC 8.1(a)(2) does not provide a time for response. As a result, Roller’s response
cannot be considered blatantly untimely given that he did respond within 50 days of the first
letter. However, Roller’s e-mail to the Bar on April 21, 2016, indicates an effort to avoid a
substantive response. Roller claims that he did not see either letter because he was working in
his “home office.” The letters were mailed to Roller’s office address at 161 High Street #243,
Salem, Oregon. This is the same address noted on Roller’s letterhead that was supplied to the
Bar in his response of April 22, 2016. See Exhibit 72. It is highly unlikely that Roller failed to
see letters addressed to his office over a one-month period merely because he was “working
from home.”
This is a violation of RPC 8.1(a)(2).
MADDEN
Kimberly Madden was looking for a bankruptcy lawyer in 2012. She found Roller
through a Craigslist ad. Roller advertised that he would “barter” for services. TR 261.
Madden agreed to give Roller a four-wheeler “quad” in exchange for Roller’s
assistance in filing her bankruptcy. TR 261 The agreed upon value of the quad was $1,100.00.
TR 262. She drove it to Roller’s parents’ house in Independence. TR 262. She claims that a
receipt was given, but she cannot find it. TR 262. Based on her recollection, the receipt merely
stated “bankruptcy paid in full per quad.” TR 262.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
321
There is no written fee agreement. TR 262.
A few months after hiring Roller to complete her bankruptcy, Madden had a change of
heart. She asked Roller to “put the matter on hold.” TR 263. She did not ask for return of the
quad. Instead, Madden indicated she would return to Roller’s office sometime later to go
forward with bankruptcy. TR 263.
In March of 2015, Madden contacted Roller to pursue the bankruptcy. TR 264; see
Exhibit 81. She completed the necessary forms and collected her papers for a visit with Roller.
See Exhibit 81. She met him on March 26, 2015. TR 267. She paid Roller $320.00 as a filing
fee to initiate the bankruptcy. TR 266.
On April 10, 2015, Madden asked Roller if the bankruptcy filing was ready for her
signature. TR 269; see Exhibit 81. Roller responded on April 22, 2015, indicating a “paralegal”
was working on the paperwork. See Exhibit 81.
Madden next contacted Roller on June 17, 2015. TR 270. She was concerned that her
bank account may be garnished. She emphatically asked Roller “. . . can we get this bankruptcy
filed ASAP PLEASE?!?” TR 270; see Exhibit 81.
On July 13, 2015, Madden e-mailed Roller regarding her job change and details
regarding her bankruptcy. See Exhibit 81. On July 22, 2015, Madden’s truck was repossessed.
TR 271; see Exhibit 81. She reviewed a bankruptcy petition prepared by Roller, signed it, and
sent a picture of the signed document back to Roller. TR 272. She assumed that everything
was a “go” to file the petition. TR 272.
By August 11, 2015, the petition had still not been filed. She emailed Roller. He
responded asking her for “new” pay stubs. TR 272; see Exhibit 81. She sent him the pay stubs.
TR 273; see Exhibit 81.
As of September 1, 2015, the bankruptcy was not filed.
Madden began looking for a new lawyer to file the bankruptcy. TR 274–275. At some
point (presumably in the fall of 2015) she sent Roller an e-mail “firing” him. TR 275. She
requested a return of her money. TR 275. Roller did not return or refund any of her money. TR
276.
Madden found another lawyer to file the bankruptcy. TR 275–276. It was completed
and filed within a few months for a cost of $1,400. Id.
Roller testified that he tried to return $320 to Madden. TR 358–360. He purchased a
money order from the US Post Office. Id. Roller claims he used the exact cash Madden had
given him to purchase the money order. TR 362. According to Roller, he gave $320 to the post-
office clerk but “mistakenly” received a $3.20 money order. See Exhibit 99. Roller did not
send the $3.20 money order to Madden, nor did he make a claim with the Post Office for
$316.80. TR 363-364.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
322
RPC 1.3 - A Lawyer shall not neglect a legal matter entrusted to the lawyer.
Madden’s bankruptcy was a simple and straight forward matter. Roller did not get the
matter completed. Madden renewed her interest in filing bankruptcy in March of 2015. By the
fall of 2015, nothing had been filed. Roller’s only response was that his office was “very busy”
and it was difficult to communicate through Facebook.
The “justifications” by Roller are not credible. The delay and eventual failure to
complete the bankruptcy show a clear violation of the rule.
RPC 1.15-1(c) - A lawyer shall not deposit into a lawyer trust account legal fees and
expenses that have not been paid in advance, to be withdrawn by the lawyer only as fees are
earned or expenses incurred, unless the fee is denominated as “earned fee on receipt,”
“nonrefundable” or “similar terms and complies with Rule 1.5 (c)(3).
Madden paid Roller with a “quad.” She testified that a receipt was given when she
presented the vehicle to Roller. The receipt merely stated, “bankruptcy paid in full per quad.”
Madden cannot find a copy of the receipt.
Roller claims that a fee agreement was signed. He cannot find the agreement.
We find Madden’s testimony to be more credible.
Roller took the quad and did not return it for commensurate value to Madden. Even
more egregious, he took Madden’s $320 filing fee and held it in a safe rather than in a trust
account. TR 362-363. These acts clearly violate RPC 1.15-1(c). Roller took those funds, which
had been entrusted to him for the filing fee, to exchange them for a money order. He did not
confirm the amount of the money order prior to leaving the post office. When he did notice the
amount was incorrect, he did not take steps to address the problem. He did not inform Madden
of the situation. He did not return any of the funds to Madden. He did not produce the money
order he alleged he received from the USPS. Roller’s version of these events is not credible.
He violated RPC 1.15-1(c).
RPC 1.16(d) - Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as . . . refunding any advance
payment of fee or expense that has not been earned or incurred.
Roller failed to compete the bankruptcy filing. Even if he was working under a flat fee
arrangement (which the panel does not believe is accurate), he was obligated to return any
portion of the fee that was unearned. More importantly, Roller was clearly obligated to return
the $320.00 filing fee. Roller’s explanation regarding he $3.20 money order is not credible and
does not justify his failure to return the funds.
This is a violation of RPC 1.16(d).
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
323
GENERAL OBSERVATIONS REGARDING ROLLER’S
PRESENTATION AND CREDIBILITY
Roller appeared on the first day of the hearing wearing a baseball cap and an outdoor
fleece-type pull-over jacket. His behavior during the hearing was at times disruptive and not
appropriate for the serious nature of the charges leveled against him. At various times, Roller
wore a cap down over his eyes. He did not seem to be aware of the typical decorum for such a
proceeding. During the testimony of many witnesses, Roller would lean back in his chair with
his hands clasped behind his head. Sitting in this manner exposed his bare midriff. The panel
found this to be unprofessional and distracting. Roller’s body language and demeanor were
hostile. At times during the testimony of the Bar’s witnesses, Roller would cross his arms
defiantly in a manner suggesting that he was non-verbally commenting on the credibility of
the witness.
At the outset of the hearing, Roller stated he was “not a lawyer” and that the Bar did
not have authority to proceed with the case. TR 14. However, he admitted that the Bar had sent
him a notice of suspension and that his attorney website was still up and running. TR 300-301.
On the morning of the second day of trial, the panel and bar counsel received an e-mail
from the Accused stating, “I am running about 15 minutes late. Sent from my iPhone. www
.daleroller .com.” The text specifically referenced his attorney website and when ‘clicked,’ the
website was still active. There was no explanation or apology for being late. When he arrived
for trial at 9:19 a.m., nineteen minutes late, he looked disheveled. His hair was sticking out
from underneath his cap, upon which “Guiness” was prominently displayed. He was unshaven.
At various times throughout the hearing, Mr. Roller indicated that he was unable to
read material documents or exhibits because he did not have his glasses. See, e.g., TR 15. He
repeatedly commented that he could not see documents because he had “poor eyesight,” “my
eyes hurt,” or because he “forgot” his glasses. See, e.g., TR 322. These comments were
manytimes made at a time when the content of the document contradicted his position; e.g., “I
don’t have my glasses.” TR 323, 324, 325; “I’m not looking at the writing anymore. My eyes
hurt, and there’s [sic] a lot of words here.” TR 342. In contrast, he was, at other times, capable
of reading and commenting on documents with similar sized font. See, e.g., TR 311-312.
During the Accused’s testimony, it became apparent that he had not reviewed the
details of his representation regarding the matters brought forward by the Bar. See, e.g., TR
376. Mr. Roller did not have an accurate memory of many of these matters and he was
unprepared to answer questions. See, e.g., TR 323–324, 326–327. Even more concerning was
his testimony that he does not consistently keep notes on cases and therefore it would be
impossible for him to reconstruct details of these matters with any accuracy. TR 376-377. He
further testified that any information about how to proceed with a case would be “in my head.”
TR 311. Because he does not keep notes for cases, he was unable to recall when a hearing was
held, what occurred at the hearing, who was present, or which judge presided. He apparently
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
324
did very little to prepare for the hearing in terms of reviewing the court files to determine what
had occurred.
When faced with difficult questions, his tone of voice was sometimes sarcastic,
particularly when stating that he “did not recall” the details of an event. He would sometimes
say things like, “I believe I told him I had no experience in condemnation cases,” but then
pause a moment before adding, “but I don’t recall.” TR 310. For example, when bar counsel
asked him if he wanted to look at his billing records to determine if he really spent 21.7 hours
researching condemnation prior to filing his response, he replied, “[n]ot really.” TR 311.
SANCTION
In fashioning an appropriate sanction in this case, the Disciplinary Board should
consider the ABA Standards for Imposing Lawyer Sanction (“Standards”). The Standards
require that Roller’s conduct be analyzed by considering the following factors: (1) the ethical
duty violated; (2) the attorney’s mental state; (3) the actual or potential injury; and (4) the
existence of aggravating and mitigating circumstances.
a. Duty Violated.
The duties owed to clients warrant significant consideration in evaluating
lawyer misconduct. In this case, Roller was entrusted with matters that were
extremely important to the Maderas (maintaining their ability to work), Madden
(a bankruptcy to keep her truck from being repossessed), and Pointer (timely
advice regarding bankruptcy). Roller also failed to follow client instructions
and return client property in a timely manner. These acts caused injury to the
clients through loss of work opportunities and material possessions.
b. Mental State.
Throughout the representation of these clients, Roller was aware that he had not
accomplished their objectives (the Maderas, Pointer, and Madden) or that he
was not following the client’s directives (Torrance). He clearly failed to return
client property or account for the amount owed to clients by failing to return the
filing fees to Pointer and Madden and by failing to offset the amounts paid in
retainer and the State’s payment form the amount billed to Torrance. The Panel
finds that these were knowing or intentional acts.
c. Injury.
The injury to the Maderas was significant. Both Mr. and Mrs. Madera had
successfully worked in this country under a work permit. According to the
testimony at hearing, the Maderas lost their opportunity to renew their work
permits. Both Pointer and Madden gave Roller money for filing fees that was
not returned.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
325
d. Preliminary Sanction.
The Panel finds that an appropriate preliminary sanction is suspension for a
period of at least four years. This is based on the knowing failure of Roller to
perform services for the clients and the very real injury caused to these clients.
e. Aggravating or Mitigating Circumstances.
Aggravating circumstances include 1 through 7 listed below:
1. Prior Discipline: Standards § 9.22(a). The Panel notes that Roller is
subject to prior discipline. A previous trial panel heard evidence and
issued an opinion dated July 11, 2016. See Exhibit B in Bar’s exhibits.
The panel recommended a four-year suspension which was affirmed by
the Supreme Court on March 9, 2017. This prior discipline represents a
significant pattern of misconduct that suggests Roller is not fit for the
practice of law.
The fact that this prior discipline is very recent is more troubling. In the
case considered by the current trial Panel (April, 2017), Roller repre-
sented himself in a manner that did not comport with respect for or an
understanding of the importance of the proceeding. Given that he had
been recently sanctioned (March 2017), one would expect a greater
sensibility to the serious nature of the charges in the current proceeding
and restraint in the aggressive denial of his failures. Instead, the Panel
observed defiance and a lack of recognition that his actions caused any
harm.
2. A pattern of misconduct. Standards § 9.22(c). This is shown by the prior
record of discipline. The matters identified in the earlier disciplinary
proceeding show failures to keep clients informed, conversion of client
money, and collection of excessive fees. These are all matters con-
sidered in the current disciplinary proceeding.
3. Dishonest or selfish motive. Standards § 9.22(b). At times Roller’s
conduct was selfish. He took money from clients and immediately
converted it to his own use without posting the same in a trust account
to keep track of the payment in the event some or a portion should be
returned to the client. These acts show that Roller was more interested
in collecting and using the money for his own purposes than respecting
the payment as client property until such time as it could be used for the
client’s interests.
4. Multiple offenses. Standards § 9.22(d). There are several offenses
alleged for each of the clients noted.
Cite as In re Roller (II), 31 DB Rptr 304 (2017)
326
5. Bad faith obstruction of disciplinary proceeding. Standards § 9.22(e).
There is one instance of failure by Roller to respond to the Bar. Roller
claimed that he did not see the Bar’s letter, as he was working at home.
The letters span a one-month time period. The Panel does not find
Roller’s explanation to be credible and, as a result, finds a bad-faith
failure to timely respond to the Bar’s inquiries.
6. Refusal to acknowledge wrongful nature of conduct. Standards
§ 9.22(g). Throughout these proceedings, Roller did not make any effort
to acknowledge any failure, even if nothing more than negligence, on
his part.
7. Vulnerability of victims. Standards § 9.22(h). The Maderas, Pointer,
and Madden are particularly vulnerable, given their lack of sophis-
tication and limited financial capacity.
8. Substantial experience in the practice of law. Standards § 9.22(i). The
Panel does not find that Roller has substantial experience in practicing
law. This is not an aggravating circumstance.
9. Indifference to making restitution. Standards § 9.22(j). There was no
significant discussion regarding restitution in these proceedings.
e. Mitigating Circumstances.
Mitigating circumstances include:
1. Personal or emotional problems. Standards § 9.32(c). Roller suggested
that he was suffering from the effects of diabetes. However, there was
no proof of the same introduced at the hearing, other than anecdotal
information from Roller.
2. Physical disability. Standards § 9.32(h). There was no medical evidence
regarding physical disability.
3. Character and reputation. Standards § 9.32(g). There was no evidence
to make any finding under this mitigating circumstance.
4. Remorse. Standards § 9.32(l). As noted above, there was no evidence
of remorse.
CONCLUSION
Based on the findings of this Panel in conjunction with the aggravating factors noted
above, the Panel finds that Roller should be disbarred.
Cite as In re In re Roller (II), 31 DB Rptr 304 (2017)
327
DATED this ______ day of June, 2017.
/s/ James C. Edmonds
James C. Edmonds, OSB #861842
Trial Panel Chairperson
/s/ Lorena Reynolds
Lorena Reynolds, OSB #981319
Trial Panel Member
/s/ Fadd Beyrouty
Fadd Beyrouty
Trial Panel Public Member
Cite as In re Bottoms, 31 DB Rptr 328 (2017)
328
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 17-93
)
M. CHRISTIAN BOTTOMS, )
)
Accused. )
Counsel for the Bar: Courtney C. Dippel
Counsel for the Accused: Wayne Mackeson
Disciplinary Board: None
Disposition: Violation of RPC 1.5(c)(3), RPC 1.15-1(a), RPC 1.15-
1(c). Stipulation for Discipline. 30-day suspension.
Effective Date of Order: December 31, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by M.
Christian Bottoms and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and M.
Christian Bottoms is suspended for thirty (30) days, effective ten days after the stipulation is
approved by the Disciplinary Board for violation of RPC 1.5(c)(3), RPC 1.15-1(a) and RPC
1.15-1(c).
DATED this 21st day of December, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald W. Atwood
Ronald W. Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Bottoms, 31 DB Rptr 328 (2017)
329
STIPULATION FOR DISCIPLINE
M. Christian Bottoms, attorney at law (“Bottoms”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Bottoms was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 20, 1996, and has been a member of the Bar continuously since that time, having
had his office and place of business in Multnomah County, Oregon, until his license was
suspended on December 1, 2015, pursuant to an Order Accepting Stipulation for Discipline
entered by the Oregon Supreme Court on October 8, 2015.
3.
Bottoms enters into this Stipulation for Discipline freely, voluntarily, and with the
advice of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On October 14, 2017, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Bottoms for alleged violations of RPC 1.5(c)(3), RPC
1.15-1(a), and RPC 1.15-1(c) of the Oregon Rules of Professional Conduct. The parties intend
that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a
final disposition of this proceeding.
Facts
5.
In March 2015, Misael Garcia (“Garcia”) was charged with Assault in the Fourth
Degree and the Unlawful Possession of Methamphetamine in Multnomah County Circuit
Court Case No. 15CR08630. Garcia’s family retained Bottoms to defend Garcia for a flat fee
of $1,800. Garcia’s father paid Bottoms $1,000 initially with the remaining $800 to be paid by
April 15, 2015. The parties did not enter into a written, signed fee agreement.
6.
Bottoms deposited the $1,000 that he received into his business account, not his lawyer
trust account.
Cite as In re Bottoms, 31 DB Rptr 328 (2017)
330
Violations
7.
Bottoms admits that, by failing to execute a signed, written fee agreement to establish
a nonrefundable, earned on receipt retainer, he violated RPC 1.5(c)(3). Bottoms further admits
that, in the absence of a fee agreement that complied with RPC 1.5(c)(3), the funds paid to
Bottoms remained client property until earned and Bottoms’s deposit of those funds into his
business account and not his trust account violated RPC 1.15-1(a) and RPC 1.15-1(c).
Sanction
6.
Bottoms and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Bottoms’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Bottoms violated the duties he owed as a professional to prepare
and enter into the appropriate fee agreement. Standards 7.0. Bottoms violated
the duties he owed to a client in preserving the property of the client by not
depositing the unearned fees into his trust account. Standards 4.0.
b. Mental State. The Standards recognize three possible mental states:
intentional, knowing, and negligent. Standards at 9. Negligence is the failure of
a lawyer to heed a substantial risk that circumstances exist or that a result will
follow, which failure is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation. Knowledge is the conscious awareness
of the nature or attendant circumstances of the conduct but without the con-
scious objective or purpose to accomplish a particular result. Intent is the
conscious objective or purpose to accomplish a particular result. Id.
Bottoms acted knowingly when he entered into his nonconforming fee agree-
ment with Garcia.
c. Injury. For the purpose of determining an appropriate disciplinary sanction,
both actual and potential injury are taken into account. Standards at 6; In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992). “Potential injury” is the harm
to a client, the public, the legal system or the profession that is reasonably
foreseeable at the time of the lawyer’s misconduct, and which, but for some
intervening factor or event, would probably have resulted from the lawyer’s
misconduct. “Injury” is harm to a client, the public, the legal system or the
profession which results from a lawyer’s misconduct. Standards at 9.
Cite as In re Bottoms, 31 DB Rptr 328 (2017)
331
There was potential injury to Garcia in Bottoms’s failure to advise Garcia or his
father of their right to a refund of fees paid in advance and his failure to place
unearned fees in his escrow account.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Prior disciplinary offenses – Bottoms stipulated to discipline for
substantially similar violations in 2015 and stipulated to a reprimand in
2009. Standards § 9.22(a).
2. Substantial experience in the practice of law – Bottoms was admitted to
practice in 1996. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a dishonest or selfish motive. Standards §§ 9.32(b).
2. Full and free disclosure and cooperative attitude towards the inves-
tigation. Standards § 9.32(e).
7.
Under the ABA Standards, suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a professional and causes
injury or potential injury to a client. Standards § 7.2. Suspension is also generally appropriate
when a lawyer knows or should know that he is dealing improperly with client property and
causes injury or potential injury to a client. Standards § 4.12.
8.
Oregon case law also supports the imposition of a short suspension. See, e.g., In re
Coran, 27 DB Rptr 170 (2013) (stipulated 30-day suspension for violation of RPC 1.5(c)(3),
RPC 1.15-1(a), RPC 1.15-1(c), and RPC 1.15-1(d), where lawyer’s flat-fee agreement failed
to explain that the client could discharge lawyer at any time and in that event might be entitled
to a refund of all or part of the fee if the services for which the fee was paid were not complete);
In re Ireland, 26 DB Rptr 47 (2012) (30-day suspension for violations of RPC 1.15-1(a) and
RPC 1.15-1(c) in failing to deposit client funds in trust upon receipt).
9.
Consistent with the Standards and Oregon case law, the parties agree that Bottoms shall
be suspended for 30 days for violation of RPC 1.5(c)(3), RPC 1.15-1(a) and RPC 1.15-1(c),
the sanction to be effective ten days after this stipulation is approved.
Cite as In re Bottoms, 31 DB Rptr 328 (2017)
332
10.
Bottoms acknowledges that he has certain duties and responsibilities under the Rules
of Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid fore-
seeable prejudice to his clients during the term of his suspension. In this regard, Bottoms does
not have any current client files.
11.
Bottoms acknowledges that reinstatement is not automatic on expiration of the period
of suspension. He is required to comply with the applicable provisions of Title 8 of the Bar
Rules of Procedure. Bottoms also acknowledges that he cannot hold himself out as an active
member of the Bar or provide legal services or advice until he is notified that his license to
practice has been reinstated.
12.
Bottoms acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension or the denial of his reinstatement. This requirement is in addition to any other
provision of this agreement that requires Bottoms to attend or obtain continuing legal education
(CLE) credit hours.
EXECUTED this 13th day of December, 2017.
/c/ M. Christian Bottoms
M. Christian Bottoms, OSB No. 962270
APPROVED AS TO FORM AND CONTENT:
/s/ Wayne Mackeson
Wayne Mackeson, OSB No. 823269
EXECUTED this 15th day of December, 2017.
OREGON STATE BAR
By: /s/ Courtney C. Dippel
Courtney C. Dippel, OSB No. 022916
Assistant Disciplinary Counsel
Cite as In re Smith, 31 DB Rptr 333 (2017)
333
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case Nos. 15-74, 15-75, 15-92,
) 16-160 & 17-65
JACULIN L. SMITH, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: Richard G. Helzer
Disciplinary Board: None
Disposition: Violation of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC
1.15-1(a); RPC 1.15-1(c); RPC 1.15-1(d) and RPC
1.16(d). Stipulation for Discipline. 6-month suspension
with formal reinstatement.
Effective Date of Order: January 6, 2018
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Jaculin L. Smith and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Jaculin L. Smith is suspended for six months with the condition of BR 8.1 formal reinstate-
ment, effective January 1, 2018, or 10 days after approval by the Disciplinary Board, which-
ever is later, for violation of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC 1.15-1(a); RPC 1.15-1(c);
RPC 1.15-1(d) and RPC 1.16(d).
DATED this 27th day of December, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Ronald Atwood
Ronald Atwood, Region 5
Disciplinary Board Chairperson
Cite as In re Smith, 31 DB Rptr 333 (2017)
334
STIPULATION FOR DISCIPLINE
Jaculin L. Smith, attorney at law (“Smith”), and the Oregon State Bar (“Bar”) hereby
stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Smith was admitted by the Oregon Supreme Court to the practice of law in Oregon on
April 26, 2000, and has been a member of the Bar continuously since that time, having her
office and place of business in Multnomah County, Oregon.
3.
Smith enters into this Stipulation for Discipline freely, voluntarily, and with the advice
of counsel. This Stipulation for Discipline is made under the restrictions of Bar Rule of
Procedure 3.6(h).
4.
On January 4, 2017, an Amended Formal Complaint was filed against Smith pursuant
to the authorization of the State Professional Responsibility Board (“SPRB”) regarding Case
Nos. 15-74, 15-75, 15-92, and 16-160, alleging violation of the following Rules of Professional
Conduct (RPC):
Case No. 15-74 (Julie Canady): RPC 1.15-1(d) [duty to provide accounting promptly
upon request] and RPC 1.16(d) [duty to protect a client’s interests on termination of
representation];
Case No. 15-75 (Danielle K. Stone and Samantha J. Lucero): RPC 1.4(a) [duty to
respond to client’s reasonable requests for information];
Case No. 15-92 (Susan A. Hargrave): RPC 1.4(a) [duty to respond to client’s
reasonable requests for information] and RPC 1.15-1(d) [duty to provide accounting
promptly upon request]; and
Case No. 16-160 (Stephanie Dobler): RPC 1.3 [neglect of a legal matter]; RPC 1.4(a)
[duty to respond to client’s reasonable requests for information]; RPC 1.4(b) [duty to
provide sufficient information for a client to make decisions regarding the representa-
tion]; RPC 1.15-1(a) [duty to segregate, safeguard, and maintain records of client
funds] and RPC 1.15-1(c) [duty to deposit and maintain client funds in trust until
earned].
Cite as In re Smith, 31 DB Rptr 333 (2017)
335
5.
On August 26, 2017, the SPRB authorized formal disciplinary proceedings against
Smith regarding Case No. 17-65 (Aliz M. Smith-Dabah) for alleged violations of RPC 1.3
[neglect of a legal matter], RPC 1.4(a) [duty to respond to client’s reasonable requests for
information] and RPC 1.4(b) [duty to provide sufficient information for a client to make deci-
sions regarding the representation].
6.
The parties intend that this stipulation set forth all relevant facts, violations and the
agreed-upon sanction as a final disposition of this proceeding.
Julie Canady Matter (Case No. 15-74)
Facts
7.
On January 31, 2014, Julie Canady (“Canady”) hired Smith to represent her in a
dissolution proceeding. Canady paid Smith a $2,500 retainer. Canady became dissatisfied with
the pace of the representation and, on or about April 28, 2014, sent Smith a letter terminating
Smith’s representation, requesting an accounting of her retainer and requesting that Smith
return any unearned funds.
8.
When, by mid-May 2014, Smith did not provide the requested accounting, Canady filed
a complaint with the Bar. Thereafter, Smith provided an accounting of Canady’s funds in her
possession by the end of August 2014, and refunded $807 at that time.
Violations
9.
Smith admits that her failure to promptly provide a full accounting of client funds in
her possession upon the request of her client and her failure to take steps reasonably practicable
to protect her client’s interests, including refunding any advance payment of a fee that has not
been earned, violated RPC 1.15-1(d) and RPC 1.16(d).
Danielle K. Stone and Samantha J. Lucero Matter (Case No. 15-75)
Facts
10.
In January 2013, Danielle Stone (“Stone”) and Samantha Lucero (“Lucero”) consulted
with Smith regarding representation for possible claims from an auto accident. Smith accepted
representation by the end of June 2013.
Cite as In re Smith, 31 DB Rptr 333 (2017)
336
11.
In early 2014, Smith did not respond to Stone’s or Lucero’s request for new informa-
tion, because Smith believed that she had no information to communicate.
12.
In April 2014, Smith had a telephone conference with both clients. At that time, Smith
reports that she declined further representation of Stone and referred her to the Bar’s Lawyer
Referral Program. Smith also reports that she stated that she would continue to represent
Lucero, and explained to Lucero that it was necessary for her to provide Smith with the medical
records as agreed upon in her attorney fee agreement.
13.
From April 2014 until September 2014, Lucero made numerous attempts to contact
Smith by telephone, text, and email. Smith was aware of Lucero’s attempts to reach her, and
also aware that Stone had made attempts to reach her, but did not respond to Lucero or Stone,
and has not since communicated with Lucero or Stone relating to their legal matters.
Violations
14.
Smith admits that her failure to keep her clients reasonably informed about the status
of their matter and to promptly comply with reasonable requests for information violated RPC
1.4(a).
Susan A. Hargrave Matter (Case No. 15-92)
Facts
15.
In March 2014, Susan Hargrave (“Hargrave”) hired Smith to collect debts related to
child support and unreimbursed medical expenses. Hargrave paid Smith a $5,000 retainer.
16.
At a hearing on or about September 2, 2014, the child support debt was settled, and
Smith discussed with Hargrave the objective of pursuing reimbursement for medical expenses.
17.
In the three weeks following the September 2, 2014 hearing, Hargrave attempted to
contact Smith numerous times by phone and email to set up a meeting on the medical expenses.
Smith was aware that Hargrave was attempting to reach her but did not respond.
Cite as In re Smith, 31 DB Rptr 333 (2017)
337
18.
On September 27, 2014, Hargrave mailed Smith a letter terminating Smith’s repre-
sentation and requesting a refund of the entire retainer. Smith did not respond to this request
or provide the requested refund of Hargrave’s funds until March 2015.
Violations
19.
Smith admits that her failure to keep her client reasonably informed about the status of
her matter and promptly comply with reasonable requests for information violated RPC 1.4(a).
Smith further admits that her failure to promptly provide a full accounting of client funds in
her possession upon request of her client violated RPC 1.15-1(d).
Stephanie Dobler Matter (Case No. 16-160)
Facts
20.
In February 2014, Stephanie Dobler (“Dobler”) hired Smith to update her child support
obligation and recoup her overpayment to the support agency. Dobler gave Smith a $2,500
retainer to be billed against on an hourly basis (“Dobler retainer”).
21.
Smith deposited the Dobler retainer into her lawyer trust account, however Smith did
not maintain adequate records and she did not send billings to Dobler reflecting earned fees in
a timely manner.
22.
Between February 2014 and September 2015, Smith attempted to negotiate with the
father of Dobler’s child with the intention to resolve the parties’ issues through settlement or
an alternative dispute resolution. Smith’s attempts to negotiate with the father were unsuc-
cessful. Smith failed to take other action to advance Dobler’s objectives, and she did not file
an action to recalculate support or seek any court relief.
23.
At the outset of the representation, Smith’s professional opinion was that Dobler would
be best served thorough an administrative hearing or alternative dispute resolution, rather than
by going through the courts. However, Smith did not adequately explain to or advise Dobler
that, in her professional opinion, Dobler’s legal interests would not be best served by going
through the courts.
Cite as In re Smith, 31 DB Rptr 333 (2017)
338
24.
Between February 2014 and September 2015, Smith did not provide Dobler with
invoices in connection with her legal matter or promptly respond to Dobler’s messages request-
ing an update on her legal matter.
25.
On April 2, 2015, and on May 27, 2015, after waiting at her office on a number of
occasions, Dobler was able to catch Smith at her office and request updates on her matter. On
both occasions, Smith expressed to Dobler that she “felt terrible” she had not filed the child
support order and promised to devote “next week” to getting the matter done. However, Smith
did not complete the matter.
26.
In or around mid-September 2015, when Smith had not filed anything or resolved her
matter, Dobler terminated her services.
Violations
27.
Smith admits that her failure to take action on behalf of her client was neglect of a legal
matter entrusted to her in violation of RPC 1.3. Smith further admits that her failure to keep
her client reasonably informed about the status of her matter and promptly comply with
reasonable requests for information and her failure to explain a matter to the extent reasonably
necessary to allow her client to make informed decisions regarding the representation violated
RPC 1.4(a); RPC 1.4(b). Smith admits that her failure to segregate, safeguard, and maintain
records of client funds and her failure to deposit and maintain client funds in trust violated
RPC 1.15-1(a) and RPC 1.15-1(c).
Aliz M. Smith-Dabah Matter (Case No. 17-65)
Facts
28.
In July 2013 Aliz M. Smith-Dabah (“Dabah”) hired Smith to represent her in a custody
matter with her former husband (“dad”), who had filed several motions, including a modifica-
tion, to prevent Dabah from moving from Oregon to Florida. Smith understood Dabah’s
primary objective was to obtain court permission to move to Florida with the parties’ only
child. Pursuant to a written hourly fee agreement, Dabah paid Smith a $10,000 retainer in two
installments on August 5, 2013, and February 6, 2014.
Cite as In re Smith, 31 DB Rptr 333 (2017)
339
29.
Between July 2013 and August 2014, Smith failed to timely and adequately com-
municate her candid and complete legal evaluation of the merits of Dabah’s objectives,
Dabah’s discovery obligations, litigation scheduling, and the parties’ written settlement offers.
Smith acknowledged that she understood Dabah’s frustrations.
30.
Dabah became dissatisfied with Smith’s representation. In August 2014, Dabah
terminated Smith’s services.
Violations
31.
Smith admits that her failure to keep her client reasonably informed about the status of
her matter and promptly comply with reasonable requests for information and her failure to
explain the matter to the extent reasonably necessary to allow her client to make informed
decisions regarding the representation violated RPC 1.4(a) and RPC 1.4(b).
32.
Upon further factual inquiry, the parties agree that the charge of alleged violation of
RPC 1.3 [neglect of a legal matter] should be and, upon the approval of this stipulation, is
dismissed.
Sanction
33.
Smith and the Bar agree that, in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Smith’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Smith violated her duties to her clients to appropriately handle
unearned fees upon receipt or return client property, and to act with reasonable
diligence and promptness in representing them, including the duty to adequately
communicate with them. Standards §§ 4.1 & 4.4. The Standards provide that
the most important duties a lawyer owes are those owed to clients. Standards at
5.
b. Mental State. There are three recognized mental states under the Standards.
“Intent” is the conscious objective or purpose to accomplish a particular result.
Standards at 9. “Knowledge” is the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
Cite as In re Smith, 31 DB Rptr 333 (2017)
340
purpose to accomplish a particular result. Id. “Negligence” is the failure of a
lawyer to heed a substantial risk that circumstances exist or that a result will
follow, which failure is a deviation from the standard of care that a reasonable
lawyer would exercise in the situation. Id.
Smith did not act intentionally; rather, Smith’s conduct in this matter was primarily
negligent. That is, she failed to heed a substantial risk that circumstances exist or that
a result will follow, which failure is a deviation from the standard of care that a
reasonable lawyer would exercise in the situation. At times, however, Smith’s conduct
was also knowing. That is, she had the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result. Standards at 9. Smith knew her clients hired her and
paid her to meet certain objectives; she knew that her clients requested updates and
some action on their behalf and yet she did not to respond to some of their inquiries
and did not act on their behalf.
c. Injury. An injury need not be actual, but only potential, to support the imposi-
tion of a sanction. Standards at 6; In re Williams, 314 Or 530, 547, 840 P2d
1280 (1992). Injury can either be actual or potential under the Standards. See
In re Williams, 314 Or at 547. Smith’s clients were actually injured to the extent
that they paid for services that were not thereafter performed and to the extent
that their matters were delayed. See, e.g., In re Parker, 330 Or 541, 547, 9 P3d
107 (2000).
Further, the lack of communication caused actual injury in the form of client
anxiety and frustration. See In re Knappenberger, 337 Or 15, 31–33, 90 P3d 614
(2004); In re Obert, 336 Or 640, 652, 89 P3d 1173 (2004); In re Cohen, 330 Or
489, 496, 8 P3d 953 (2000) (client anxiety and frustration as a result of the
attorney neglect can constitute actual injury under the Standards); In re
Schaffner II, 325 Or 421, 426-27, 939 P2d 39 (1997); In re Arbuckle, 308 Or
135, 140, 775 P2d 832 (1989).
d. Aggravating Circumstances. Aggravating circumstances include:
1. A pattern of misconduct. Standards § 9.22(c).
2. Multiple offenses. Standards § 9.22(d).
3. Substantial experience in the practice of law. Standards § 9.22(i). Smith
was admitted to practice in Oregon in 2000.
e. Mitigating Circumstances.
Mitigating circumstances include:
1. Absence of a prior record of discipline. Standards § 9.32(a).
2. Absence of a dishonest or selfish motive. Standards § 9.32(b).
Cite as In re Smith, 31 DB Rptr 333 (2017)
341
3. Personal or emotional problems. Standards § 9.32(c). Smith reports that
she was experiencing personal problems at the time of the events in
these matters.
4. Cooperative attitude toward disciplinary proceedings. Standards
§ 9.32(e).
5. Delay in disciplinary proceedings. Standards § 9.32(i).
6. Remorse. Standards § 9.32(l). Smith has expressed remorse for her con-
duct in these matters.
34.
Under the ABA Standards, suspension is generally appropriate when a lawyer knows
or should know that she is dealing improperly with client property and causes injury or
potential injury to a client. Standards § 4.12. Suspension is also generally appropriate when a
lawyer knowingly fails to perform services for a client and causes injury or potential injury to
a client, or engages in a pattern of neglect and causes injury or potential injury to a client.
Standards § 4.42.
35.
Oregon cases similarly find that a suspension is appropriate for similar misconduct.
See, e.g., In re Koch, 345 Or 444, 198 P3d 910 (2008) (120-day suspension where attorney
failed to advise her client that another lawyer would prepare a qualified domestic relations
order for the client and thereafter failed to communicate with the client and that second lawyer
when they needed information and assistance from attorney to complete the legal matter); In
re Redden, 342 Or 393, 153 P3d 113 (2007) (court suspended a lawyer with no prior discipline
for 60 days for his failure to complete one client’s legal matter); In re Balocca, 342 Or 279,
151 P3d 154 (2007) (court imposed 90-day suspension, in part for attorney’s failure to return
unearned client funds after closing his file); In re LaBahn, 335 Or 357, 365–67, 67 P3d 381
(2003) (attorney was suspended for 60 days for knowing neglect of his client’s tort claim that
resulted in its dismissal, and for not informing his client of the dismissal and avoiding client’s
calls).
Attorneys are also suspended by the court for failing to account for and promptly
provide client property. See In re Snyder, 348 Or 307, 232 P3d 952 (2010) (court suspended
attorney for 30 days when he failed to return a personal injury client’s file materials, including
medical records, despite numerous requests from the client).
Lastly, where an attorney is found to have violated multiple rules, the sanction imposed
is greater. See, e.g., In re Schaffner II, 325 Or at 428 (imposing a two-year suspension for
neglect of client matters and failure to respond); In re Recker, 309 Or 633, 789 P2d 663 (1990)
(imposing a two-year suspension on a lawyer who neglected multiple client matters, failed to
Cite as In re Smith, 31 DB Rptr 333 (2017)
342
respond to clients and the disciplinary authority, and engaged in conduct involving misrepre-
sentations).
36.
Consistent with the Standards and Oregon case law, the parties agree that Smith shall
be suspended for six months with the condition of BR 8.1 formal reinstatement for violations
of RPC 1.3; RPC 1.4(a); RPC 1.4(b); RPC 1.15-1(a); RPC 1.15-1(c); RPC 1.15-1(d) and RPC
1.16(d), the sanction to be effective January 1, 2018, or 10 days after approval by the
Disciplinary Board, whichever is later.
37.
Smith acknowledges that she has certain duties and responsibilities under the Rules of
Professional Conduct and BR 6.3 to immediately take all reasonable steps to avoid foreseeable
prejudice to her clients during the term of her suspension. In this regard, Smith has arranged
for Hafez Daraee, an active member of the Bar, to either take possession of or have ongoing
access to Smith’s client files and serve as the contact person for clients in need of the files
during the term of her suspension. Smith represents that Hafez Daraee has agreed to accept
this responsibility.
38.
Smith acknowledges that BR 8.1 formal reinstatement is not automatic on expiration
of the period of suspension. She is required to comply with the applicable provisions of Title
8 of the Bar Rules of Procedure. Smith also acknowledges that she cannot hold herself out as
an active member of the Bar or provide legal services or advice until she is notified that her
license to practice has been formally reinstated.
39.
Smith acknowledges that she is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in the
denial of her reinstatement. This requirement is in addition to any other provision of this
agreement that requires Smith to attend or obtain continuing legal education (CLE) credit
hours.
40.
Smith represents that, in addition to Oregon, she also is admitted to practice law in the
jurisdictions listed in this paragraph, whether her current status is active, inactive, or
suspended, and she acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Smith is admitted: none.
Cite as In re Smith, 31 DB Rptr 333 (2017)
343
41.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 19th day of December, 2017.
/s/ Jaculin L. Smith
Jaculin L. Smith, OSB No. 001070
APPROVED AS TO FORM AND CONTENT:
/s/ Richard G. Helzer
Richard G. Helzer, OSB No. 690735
EXECUTED this 27th day of December, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey, OSB No. 060478
Assistant Disciplinary Counsel
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
344
IN THE SUPREME COURT
OF THE STATE OF OREGON
In re: )
)
Complaint as to the Conduct of ) Case No. 17-82
)
RICHARD G. COHN-LEE, )
)
Accused. )
Counsel for the Bar: Nik T. Chourey
Counsel for the Accused: None
Disciplinary Board: None
Disposition: Violation of RPC 5.5(a) and ORS 9.160. Stipulation for
Discipline. Public Reprimand.
Effective Date of Order: December 28, 2017
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by
Richard G. Cohn-Lee and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and
Richard G. Cohn-Lee is publicly reprimanded, for violation of RPC 5.5(a) and ORS 9.160.
DATED this 28th day of December, 2017.
/s/ William G. Blair
William G. Blair
State Disciplinary Board Chairperson
/s/ Andrew Cole
Andrew Cole, Region 7
Disciplinary Board Chairperson
STIPULATION FOR DISCIPLINE
Richard G. Cohn-Lee, attorney at law (“Cohn-Lee”), and the Oregon State Bar (“Bar”)
hereby stipulate to the following matters pursuant to Bar Rule of Procedure 3.6(c).
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
345
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and
at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9,
relating to the discipline of attorneys.
2.
Cohn-Lee was admitted by the Oregon Supreme Court to the practice of law in Oregon
on September 22, 1995, and has been a member of the Bar continuously since that time, having
his office and place of business in Clackamas County, Oregon.
3.
Cohn-Lee enters into this Stipulation for Discipline freely, voluntarily, and with the
opportunity to seek advice from counsel. This Stipulation for Discipline is made under the
restrictions of Bar Rule of Procedure 3.6(h).
4.
On October 14, 2017, the State Professional Responsibility Board (“SPRB”) authorized
formal disciplinary proceedings against Cohn-Lee for alleged violations of Oregon Rule of
Professional Conduct (RPC) 5.5(a) [practicing law in violation of the regulations of the
practice] and Oregon Revised Statute (ORS) 9.160 [practicing law while not an active member
of the Bar]. The parties intend that this stipulation set forth all relevant facts, violations and the
agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
May 1, 2017, was the deadline for Oregon State Bar members to submit IOLTA
compliance reports. Cohn-Lee acknowledged that, on that date, Bar staff contacted him via
telephone to remind him that his compliance report was due. Cohn-Lee reports that he
attempted to log in to the Bar system in order to complete the form, but that technical issues
prevented him from logging in on that day.
6.
Cohn-Lee reported that on May 2, 2017, he was able to log in to the Bar’s system to
complete his IOLTA form. On that date, Cohn-Lee left a message for Bar staff asking if any
other steps needed to be taken. Also on May 2, 2017, Helen Hierschbiel (Hierschbiel) sent a
letter to the State Court Administrator’s Office listing the Bar members administratively
suspended as of May 2, 2017, including Cohn-Lee. A copy of Hierschbiel’s letter was sent to
Cohn-Lee via U.S. Mail using the address that he had previously provided to the Bar as his
address of record.
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
346
7.
Bar staff returned Cohn-Lee’s call with an email sent on May 3, 2017 to the email
address that Cohn-Lee had provided to the Bar as his address of record. In that email message,
Bar staff confirmed that Cohn-Lee was administratively suspended for failing to timely submit
his IOLTA compliance report. Bar staff confirmed the receipt of his IOLTA compliance report
and informed him that his final steps to reinstatement included completing the Statement in
Support of BR 8.4 Reinstatement and paying a fee.
8.
Cohn-Lee reported that, as of July 27, 2017, he had not received any communication
from the Bar following his call on May 2, 2017. He stated that his email address was out of
date as of May 3, 2017, when Bar staff emailed him on that date. He also stated that his U.S.
Mail address on record with the Bar was out of date as of May 2, 2017, when Hierschbiel’s
letter was sent.
9.
At all material times herein, Bar Rule 1.11(d) provided that: “It is the duty of all
attorneys promptly to notify the Oregon State Bar in writing of any change in his or her contact
information. A new designation shall not become effective until actually received by the
Oregon State Bar.” Cohn-Lee acknowledges that he was obligated to keep the Bar apprised of
his contact information.
10.
On July 27, 2017, Cohn-Lee attempted unsuccessfully to log in to the Bar’s website.
He called and learned that he was still administratively suspended. Bar staff informed Cohn-
Lee that he needed to submit the Statement in Support of BR 8.4 Reinstatement and the fee.
Cohn-Lee completed the reinstatement form and mailed it to the Bar on July 28, 2017. The Bar
received his form and fee on August 8, 2017, and he was reinstated as of August 10, 2017.
11.
On his reinstatement form and in response to the Bar’s inquiry, Cohn-Lee admitted that
he had practiced law while he was suspended from May 2, 2017, until August 10, 2017. During
that three month period, Cohn-Lee engaged in mediation, discussions with clients and
opposing counsel, legal research, writing, analysis, and related activities.
Violations
12.
Cohn-Lee admits that, by practicing law while suspended, he violated RPC 5.5(a) and
ORS 9.160.
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
347
Sanction
13.
Cohn-Lee and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions
(“Standards”). The Standards require that Cohn-Lee’s conduct be analyzed by considering the
following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. Cohn-Lee violated his duty to the profession to refrain from the
unauthorized practice of law. Standards § 7.0.
b. Mental State. The most culpable mental state is that of “intent,” when the
lawyer acts with the conscious objective or purpose to accomplish a particular
result. Standards at 9. “Knowledge” is the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result. Id. “Negligence” is the failure to be
aware of a substantial risk that circumstances exist or that a result will follow
and which deviates from the standard of care that a reasonable lawyer would
exercise in the situation. Id. Cohn-Lee acted negligently by failing to confirm
that he had fully complied with the requirements for reinstatement after his
administrative suspension. He also was negligent in failing to keep the Bar
apprised of his address of record.
c. Injury. Injury can be either actual or potential under the Standards. In re
Williams, 314 Or 530, 547, 840 P2d 1280 (1992).
There is no evidence that Cohn-Lee’s conduct caused actual injury to any
clients during his three-month period of administrative suspension. During that
time, however, his clients had the potential to suffer injury as the result of his
unauthorized practice of law.
d. Aggravating Circumstances. Aggravating circumstances include:
1. Substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Circumstances. Mitigating circumstances include:
1. Absence of a prior disciplinary record. Standards § 9.32(a).
2. Absence of dishonest motive. Standards § 9.32(b).
3. Timely good faith effort to make restitution or to rectify consequences
of misconduct. Standards § 9.32(d). Once Cohn-Lee realized that he
was still suspended, he promptly submitted the required reinstatement
form and fee.
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
348
4. Full and free disclosure to disciplinary board or cooperative attitude
toward proceedings. Standards § 9.32(e). On his reinstatement form and
in his response to the Bar’s inquiry, Cohn-Lee admitted that he had
practiced law while he was administratively suspended.
14.
Under the ABA Standards, public reprimand is generally appropriate when a lawyer
negligently engaged in conduct that is a violation of a duty owed as a professional and causes
injury or potential injury to a client, the public, or the legal system. Standards § 7.3.
15.
Oregon case law also supports a public reprimand in this matter. See In re Dixon (I),
17 DB Rptr 102 (2003) (attorney with prior discipline practiced for eight days while suspended
and received public reprimand); In re Bassett, 16 DB Rptr 190 (2002) (attorney received public
reprimand after practicing for fifteen days while suspended for failing to timely pay his PLF
assessment due to an NSF check); In re Schmidt, 2 DB Rptr 97 (1988) (attorney reprimanded
for engaging in settlement negotiations during his one-month period of suspension).
16.
Consistent with the Standards and Oregon case law, the parties agree that Cohn-Lee
shall be publicly reprimand for violation of RPC 5.5(a) and ORS 9.160.
17.
Cohn-Lee acknowledges that he is subject to the Ethics School requirement set forth in
BR 6.4 and that a failure to complete the requirement timely under that rule may result in his
suspension. This requirement is in addition to any other provision of this agreement that
requires Cohn-Lee to attend or obtain continuing legal education (CLE) credit hours.
18.
Cohn-Lee represents that, in addition to Oregon, he also is admitted to practice law in
the jurisdictions listed in this paragraph, whether his current status is active, inactive, or
suspended, and he acknowledges that the Bar will be informing these jurisdictions of the final
disposition of this proceeding. Other jurisdictions in which Cohn-Lee is admitted: None.
19.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Bar
and to approval by the SPRB. If approved by the SPRB, the parties agree the stipulation is to
be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
Cite as In re Cohn-Lee, 31 DB Rptr 344 (2017)
349
EXECUTED this 21st day of December, 2017.
/s/ Richard G. Cohn-Lee
Richard G. Cohn-Lee, OSB No. 952331
EXECUTED this 27th day of December, 2017.
OREGON STATE BAR
By: /s/ Nik T. Chourey
Nik T. Chourey, OSB No. 060478
Assistant Disciplinary Counsel
