Oregon State Bar Bulletin APRIL 2002

Discipline

Note: More than 11,300 attorneys are eligible to practice law in Oregon. Some of them share the same name or similar names. All discipline reports should be read carefully for names, addresses and bar numbers.

THOMAS V. BRYANT
OSB #73362
Bend
Public reprimand

Pursuant to a stipulation for discipline approved by the disciplinary board on Feb.5, 2002, Bend attorney Thomas V. Bryant was publicly reprimanded for violation of DR 5-101(A) (lawyer's self-interest conflict), DR 5-105(C) (former client conflict of interest), and DR 5-105(E) (current client conflict of interest).

Bryant stipulated that in 1995, litigation was filed against Bryant, an individual client, and two corporate clients by a shareholder of one of the corporate clients. This litigation alleged tortious conduct by Bryant and the individual client. Bryant undertook to represent himself, the individual client and the two corporate clients in this litigation when the interests of these clients were in conflict.

When the court ordered Bryant disqualified as counsel of record for one of the corporate defendants in the litigation because of a conflict of interest, he continued to represent the individual client and the remaining corporate client without first having obtained the consent to do so from any of the clients after full disclosure.

Finally, Bryant was in possession of the proceeds from the corporate clients' business venture. These proceeds, held in Bryant's trust account, were insufficient to reimburse each of the corporate clients for the full amounts owing to them. The plaintiff in the above-described litigation also was seeking to recover these proceeds. Bryant filed an attorney's lien against the proceeds when he had reason to know that the funds were not sufficient to pay his claim and the competing claims of his clients. Thereafter, without consent after full disclosure, Bryant continued the representation until such time as he was disqualified by the court from representing one corporate client.

The sanction was determined in consideration of Bryant's substantial experience in the practice of law, that he did not act with a dishonest or selfish motive, his cooperation with the bar and his reputation in the community.

DAVID N. LACKEY
OSB #73352
Salem
1-year suspension

On Jan. 10, 2002, the Oregon Supreme Court suspended Salem lawyer David N. Lackey for a period of one year, beginning March 11, 2002, for violation of DR 4-101(A)(1) (revealing client confidences or secrets); DR 4-101(B)(2) (using a client confidence or secret to a client's disadvantage) and DR 4-101(B)(3) (using a client confidence or secret for the advantage of the lawyer).

For a period of 10 years, Lackey was employed as the full-time judge advocate for the Oregon National Guard. In the course of his employment Lackey came into conflict with his commanding officer. This conflict eventually resulted in the termination of Lackey's employment. After his employment was terminated, Lackey disclosed to newspaper and television reporters legal advice he had rendered to the National Guard concerning an internal audit that had been performed several years prior to the termination of his employment.

The court found that the memorandum Lackey disclosed to the press contained client confidences and secrets and that Lackey disclosed these confidences and secrets without his client's consent for the purpose of satisfying his desire to embarrass or injure officers of the Oregon National Guard with whom he had prior work-related conflicts. In determining the appropriate sanction, the court considered that Lackey's conduct was undertaken with a selfish motive and that he had substantial experience in the practice of law, but no prior record of disciplinary offenses.

ANDREW P. OSITIS
OSB #74245
Salem
Public reprimand

On Feb. 14, 2002, the Oregon Supreme Court issued an order publicly reprimanding Salem lawyer Andrew P. Ositis for violating DR 1-102(A)(1) (knowingly violating the disciplinary rules through the acts of another) and DR 1-102(A)(3) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

Ositis represented a client who bought and sold animals for medical research in a contested proceeding before a federal agency. The client's business had been targeted by animal rights activists, and the client felt he was in some personal danger. Ositis introduced the client to a private investigator who was initially hired to provide security for the client and his wife at a hearing. The investigator also operated as an independent freelance reporter using an assumed business name of International News Service.

After the hearing, a neighbor who owned a farm adjacent to the client's business spoke to television news reporters and her statements were later televised. The client and Ositis knew the neighbor and knew she strongly opposed the client's business. They also believed that the neighbor was allowing activists to use her property as a base of operations for observing and raiding the client's facilities.

After consultation with Ositis, and acting as an investigator, the investigator presented himself to the neighbor as a reporter for International News Service and did not disclose that he actually was working for Ositis and his client. The purpose of the interview was to gather information for a possible lawsuit against the neighbor. The court noted that the neighbor would not have agreed to the interview if the true purpose for the interview had been disclosed.

The court concluded that Ositis suggested a particular line of inquiry for the interview, knowing that the investigator intended to represent himself as a reporter and not as an investigator. By exercising direction and control over certain of the investigator's actions, the court concluded that Ositis engaged in conduct in violation of DR 1-102(A)(3) 'through the acts of another' in violation of DR 1-102(A)(1). (DR 1-102(A)(3) recently was amended by the court. The court offered no opinion whether Ositis' conduct would have violated the rule as amended.)

ELISSA M. RYAN
OSB #92447
Portland
18-month suspension

On Feb. 5, 2002, the supreme court accepted a stipulation upon review entered into between the bar and Portland lawyer, Elissa M. Ryan. Pursuant to that stipulation, the court suspended Ryan for 18 months for violation of DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 3-101(B) (practicing law in a jurisdiction in violation of that jurisdiction's regulations of the profession), DR 7-102(A)(5) (knowingly making a false statement of law or fact), ORS 9.160 (unlawful practice of law) and ORS 9.527(4) (willful deceit or misconduct in the legal profession). Ryan's suspension is effective April 6, 2002.

In the stipulation upon review, Ryan and the bar agreed that the opinion of the trial panel that heard Ryan's case was acceptable and the discipline imposed by the trial panel was appropriate. The trial panel found that Ryan did not pay her PLF installment and was therefore suspended. Ryan knew she was suspended, but continued to practice law, nonetheless. During the period of her suspension, Ryan did not disclose to her clients, opposing counsel or the courts that she was suspended.

Thereafter, Ryan signed an affidavit in support of her petition for reinstatement to active membership in the bar. In that statement, Ryan represented that she had not engaged in the practice of law except where authorized to do so during the period of her suspension. The trial panel found that this statement was a misrepresentation made intentionally with the knowledge that it was false.
The trial panel determined the appropriate sanction in consideration of the fact that Ryan had engaged in a pattern of misconduct that violated multiple rules and statutes for her own financial gain. The panel also considered that Ryan refused to acknowledge the wrongful nature of her conduct, but she had no prior disciplinary record and suffered from personal and emotional problems during the relevant times.

ALAN G. HANSON
OSB #97278
Salem
Public reprimand

On March 11, 2002, the disciplinary board approved a stipulation for discipline in which Salem lawyer Alan G. Hanson received a reprimand for violation of DR 2-110(A)(2) (improper withdrawal) and DR 6-101(B) (neglect of a legal matter).

Hanson agreed to represent a client who was having a problem with his residential landlord. Hanson gave the client advice about vacating the premises and pursuing a claim for damages. Hanson ultimately sent a demand letter to the landlord, advising that a lawsuit would be filed if the demand was not paid.

About the time of the demand letter, Hanson obtained employment outside the private practice of law and he closed down his law practice. Hanson failed to follow-up on the demand letter, did not further advance the client's claim, failed to give the client notice that Hanson was leaving private practice and did not arrange for another lawyer to assist the client. After some difficulty, the client eventually located Hanson who referred him to other counsel.

In mitigation, Hanson had no prior record of discipline, was inexperienced in the practice of law at the time of the representation and fully cooperated with the bar inquiry.

J. KURT BLACK
OSB #70018
Wilsonville
Two-year suspension

On Feb. 19, 2002, the Oregon Supreme Court approved a stipulation for discipline between the Oregon State Bar and Wilsonville lawyer J. Kurt Black suspending Black from the practice of law for two years for violating DR 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The stipulation was effective 30 days from the date of the order.

In approximately 1991, Black and two other individuals entered into a business agreement for the production of wood flooring under an assumed business name. Because of financial difficulties, the business failed and one of the individuals left the business to Black and the third partner. Black and the remaining partner orally agreed that Black would have the remaining wood milled, sell it to anyone interested in purchasing the flooring, and the partners would split the proceeds from the sale of the flooring.

Pursuant to the agreement, Black sold the wood for a net profit of approximately $15,000. Despite the oral agreement, Black refused to pay his partner his one-half share of the net profits when he had no legal right to the money, and thereby converted some or all of the proceeds.

After Black received the sale proceeds, the partner made efforts to contact Black to collect his share of the proceeds. Ultimately, Black conceded his debt and executed a promissory note in the amount of $7,095.94 in favor of the partner. Black failed to pay the note and the partner filed a complaint with the Oregon State Bar. In the stipulation, Black admitted that, by engaging in the conduct, he violated DR 1-102(A)(3).

Black had no prior disciplinary record and, although an active member of the Bar, had not been actively practicing law for approximately 19 years.

KEVIN M. McCALLIE
OSB #90336
McMinnville
90-day suspension

On February 4, 2002, the disciplinary board approved a stipulation for discipline suspending McMinnville lawyer Kevin M. McCallie from the practice of law for 90 days for violating DR 1-102(A)(3) (conduct involving misrepresentation); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 6-101(A) (lack of competence) and DR 6-101(B) (neglect of a legal matter). The order approving the stipulation made the suspension effective March 1, 2002.

In 1992, a client retained McCallie to represent him as personal representative of the client's late grandmother's estate. Prior to this time, McCallie had never handled an estate matter. Client and his sister were the sole heirs of the estate that consisted of several bank accounts, personal property, and a farm that client had been living on with his grandmother.

In September 1992, grandmother's will was admitted to probate, a bond of $150,000 was set, and client was appointed personal representative. McCallie timely filed notice of the death to creditors and periodically filed accountings and orders relating to estate assets but did not serve copies of any documents on sister's lawyer.

In September 1993, McCallie filed a petition for partial distribution at the request of both heirs. The petition sought partial distribution of the assets to persons McCallie represented to be heirs and devisees, when McCallie knew the petition was false in that one of the persons identified in the petition was not an heir or devisee. Relying on the material misrepresentation, the court entered an order authorizing a partial distribution in excess of $25,000 to the person not entitled to any estate distribution.

McCallie filed annual accountings in 1994, 1995, and 1996. All of these filing were inaccurate and based upon information provided by client that McCallie failed and neglected to verify.

In 1996, McCallie filed a final account and petition for decree of final distribution falsely stating that all taxes due from the estate had been paid and appropriate releases had been filed. At the time the petitions were submitted to the court, McCallie knew they were not true and intended that the court rely on them to close the estate.

In 1997, the client agreed to be removed as personal representative and a subsequent audit and trial determined that client had failed to carry out his statutory duties as personal representative. During the probate, McCallie took no action to require client to fulfil those statutory duties and, as a result of McCallie's inaction, the estate was not closed until April 2000. Because of his failure to ensure that the client timely performed his duties as personal representative, the client's share of the estate was surcharged $50,000, including $20,000 for accounting fees to review and properly account for estate assets.

The stipulation recited that McCallie had no prior disciplinary record, had little experience in the practice of law at the time of misconduct, had no dishonest or selfish motive, fully cooperated during the investigation, was remorseful for the conduct, and had a good reputation in the community.

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