Oregon State Bar Bulletin JULY 2002

Discipline

Note: More than 11,500 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.

JOHN BASSETT
OSB #65012
Milwaukie
Public reprimand

Effective May 30, 2002, a trial panel of the disciplinary board reprimanded Milwaukie lawyer John Bassett for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation) and DR 5-103(B) (advancing financial assistance to a client).

Bassett undertook to represent a client who had sustained injuries in a two-car accident. During the course of the representation, Bassett advanced funds to his client. The advances were not for expenses incurred in litigation, but instead were used to pay the client's personal living expenses. These advances violated DR 5-103(B).

Ultimately, the insurance carrier for the driver of the other car offered to pay its liability policy limits. Shortly thereafter, the insurance carrier sent Bassett a check payable to, among others, a hospital and a doctor who had filed medical service liens pursuant to ORS 87.555 et seq.

Bassett then sent a letter to the hospital stating that because the financial recovery available was insufficient to satisfy all of the client's medical creditors, the hospital should accept a reduced payment in full satisfaction of the lien. Thereafter, the amount available to satisfy the medical creditors increased, because another liability policy covering the driver of the other car was discovered and because the client's own insurance company waived its right to be reimbursed for medical and wage expenses it had paid. Bassett continued to communicate with the hospital about its lien and deliberately failed to disclose the existence of the additional funds. The hospital never learned about the additional funds and eventually accepted a reduced payment in full satisfaction of its lien.

Almost a month before the hospital and the doctor agreed to accept a reduced payment in full satisfaction, Bassett sent a letter to the insurance carrier for the driver of the other car stating that he had negotiated settlements with the hospital and doctor, and asking the insurance carrier to re-issue the check it had issued previously to eliminate both the hospital and doctor as payees. At the time Bassett sent this letter, he knew that he had not yet negotiated settlements with the hospital and doctor.

The trial panel dismissed a third charge that alleged Bassett charged a clearly excessive fee to the client in violation of DR 2-106(A).


DANIEL Q. GALLAGHER
OSB #94075
Winston
Public reprimand

On May 17, 2002, the disciplinary board approved a stipulation reprimanding Winston lawyer Daniel Q. Gallagher for violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice).

In 1997, Gallagher represented a client in a dissolution of marriage proceeding. Gallagher pursued the matter in Douglas County and in August 1997, the court entered a judgment of dissolution of marriage. The parties subsequently married each other again.

In October 2000, Gallagher was retained by the same client for dissolution of marriage. Thereafter, he filed a petition for dissolution of marriage in Douglas County. ORS 14.070(1) requires that a suit for dissolution of marriage be commenced and tried in a county in which one of the parties resides. When Gallagher filed the petition, he knew his client lived in Colorado and had information in his possession from which he should have known that neither party had lived in Douglas County since 1997. For almost eight months, Gallagher pursued the matter in Douglas County even though all of his communications with his client were to and from Colorado.

UTCR 8.010(1) requires the petitioner in a dissolution of marriage proceeding to file a certificate of residency stating that one or both of the parties currently resides in the county in which the petition is being filed. Gallagher prepared, caused his client to sign, and filed a certificate of residency stating that one or both of the parties had resided in Douglas County for the last six months. Based on information in his possession, Gallagher should have known that this certificate was not accurate. Ultimately, the proceeding was transferred to Coos County, where the client's wife was residing.

Gallagher currently is serving a disciplinary suspension in another matter. In re Gallagher, 332 Or 173, 26 P3d 131 (2001).


CLARK I. BALFOUR
OSB #79152
Portland
Public reprimand

On June 3, 2002, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Clark I. Balfour for violating DR 6-101(B) (neglect of a legal matter).

In December 1995, Balfour met with the lawyers for the buyers of a parcel of real property and agreed to assist with the prosecution and possible arbitration of a real estate dispute. At the time, Balfour was aware that the lawyers had been working on the case since 1993. In March 1996, Balfour agreed to take over the case entirely. By June 1996, Balfour had drafted a petition for arbitration but had not filed it. Between June 1996 and September 1998, Balfour took no substantive action to file and arbitrate the dispute.

On Sept. 24, 1998, Balfour filed the arbitration petition and paid the appropriate filing fee. After filing the claim, Balfour took some action on the case but did not move it forward to arbitration. In May, 2001, the clients filed a bar complaint concerning Balfour's inaction. In August 2001, Balfour wrote the clients advising that he was withdrawing as their attorney. The clients did not respond to the letter and in October 2001, Balfour wrote them confirming his withdrawal, returning their files and refunding all fees he had received from the clients. At the time Balfour withdrew, the claim was still pending before the arbitrator.

The stipulation recited that Balfour had substantial experience in the practice of law, having been admitted to the bar in 1979, but he had little experience in this particular area of practice. The stipulation also recited, among other things, that Balfour had no prior disciplinary record, made timely good faith restitution and had fully cooperated in the disciplinary investigation.


DONALD K. ROBERTSON
OSB #58081
Gresham
Public reprimand

On April 25, 2002, the disciplinary board approved a stipulation for discipline publicly reprimanding Gresham lawyer Donald K. Robertson for violating DR 5-105(E) (current client conflict of interest). A woman, on advice of her personal attorney, offered to sell a parcel of real property to a church. The offer was accepted. Afterwards, Robertson, who was a member of the church, was asked to prepare documents necessary to complete the transaction.

Robertson learned from the woman and her personal lawyer that title to the property was vested in the woman's deceased husband's name, and that the estate would have to be probated to consummate the sale of the property to the church. It was decided that the woman would serve as personal representative of the estate.

The woman could not afford to pay the fee she was quoted by her personal lawyer, so church officials asked if Robertson would assist in the probate of the estate. Robertson told church officials he would represent the woman as personal representative if all parties consented to any conflicts of interest and her personal lawyer would continue to represent her personally and would review all documents he would prepare and file in the probate. This was confirmed in a letter to the personal lawyer with a copy to the woman and the church.

Robertson prepared and filed a petition for the woman's appointment as personal representative of her husband's estate and became attorney of record for her in the probate. Robertson later prepared documents to transfer title of the real property from the estate to the church. The documents were reviewed by the woman's personal lawyer. Robertson was not paid for his services.

Robertson stipulated that while representing the personal representative (who owed a fiduciary duty to the estate, who was the seller), and the church, (who was the buyer in the closing of the sale of real property), he was representing multiple current clients when such representation would result in an actual or likely conflict of interest, in violation of DR 5-105(E). Robertson also acknowledged that to the extent that consent was available to remedy any likely conflict of interest, he undertook the multiple representation without the consent of both clients after full disclosure. Robertson attempted to disclose to the parties that there might be a conflict of interest between them, but the letter to the client's personal lawyer did not adequately comply with the requirements of DR 10-101(B).

Robertson has a prior disciplinary record and has substantial experience in the practice of law. However he did not have a selfish motive, had fully cooperated during the disciplinary proceeding, the misconduct was remote in time, and there was delay in the disciplinary proceeding.


PAUL FLANNERY
OSB #84217
Oregon City
Public reprimand

On June 7, 2002, the Oregon Supreme Court publicly reprimanded Oregon City lawyer Paul Flannery, for violation of DR 1-102(A)(2) (prohibiting commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law), DR 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) and ORS 9.527(2) (conviction of a crime involving moral turpitude).

Flannery worked as a deputy district attorney for Clackamas County. Flannery lived in Portland until 1997, when he moved to Vancouver, Wash. Despite the move, Flannery continued to use his Oregon driver's license.

In May 1999, Flannery realized his Oregon license had expired and also realized that if he did not immediately replace the license, he would not be able to rent a car at an upcoming out-of-state business conference. Because of time constraints, Flannery elected to renew his Oregon license. In doing so, he listed the Canby address of his girlfriend's parents. As part of the renewal application, Flannery signed a statement to the effect that he understood making any false statement in the application was against the law. Flannery received a new Oregon license based on that application.

Flannery was later stopped for a traffic violation and presented the Oregon license, but did advise the officer he was living in Washington. A subsequent investigation by the Oregon State Police resulted in a criminal charge being filed against Flannery for making a false application for a driver license. He later pleaded guilty to the class A misdemeanor, received probation and paid a fine. He was also dismissed from his position with the district attorney's office.

The supreme court noted, among other things, that Flannery had substantial experience in the practice of law and acted with a selfish motive. It also noted that he had no prior disciplinary record, he fully cooperated in the disciplinary investigation, had demonstrated good character and reputation and was subjected to other penalties and sanctions.


STEVEN PLINSKI
OSB #77304
Coos Bay
Public reprimand

Pursuant to a stipulation for discipline approved by the Disciplinary Board on May 17, 2002, Coos Bay lawyer Steven Plinski, was publicly reprimanded for violation of DR 5-105(E) (current client conflict of interest). The charge arose out of Plinski's representation of a husband and wife, both of whom had children from previous marriages, in the preparation of their living trusts and other related estate planning documents. At the time Plinski undertook to represent husband and wife, their trusts had assets of substantially different values; the clients desired to distribute half of their combined assets to wife's daughter and half to husband's children; wife's trust was subject to amendment by her surviving spouse; wife was in frail health; and husband and wife had ongoing disagreements about wife's estate plan.

Wife later obtained separate counsel and revoked the living trust Plinski had prepared for her. Thereafter, Plinski again undertook to represent both husband and wife to revoke husband's trust and create a revocable joint trust.

Husband's and wife's objective personal and property interests were adverse and Plinski was aware of the adversity of his clients' interests. He undertook and continued to represent both husband and wife without first having obtained their consent to the joint representation after full disclosure.

In arriving at a sanction, the stipulation recited Plinski's substantial experience in the practice of law, the absence of a dishonest or selfish motive, his cooperative attitude, and his good reputation within his area of practice.


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