Oregon State Bar Bulletin — NOVEMBER 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.

CHARLES M. GUDGER
OSB #73114
Eugene
120-day suspension
On Aug. 28, 2002, the disciplinary board approved a stipulation suspending Eugene lawyer Charles M. Gudger from the practice of law for 120 days, effective Aug. 31, 2002, for violating DR 5-105(C) (current client conflict of interest), DR 5-105(E) (former client conflict of interest) and DR 6-101(A) (failure to provide competent representation).

Gudger undertook to represent two sisters, Nelda and Emily, in estate planning matters. Nelda wanted Emily’s financial needs to be taken care of should she predecease her. As a result of his consultation with Nelda, Gudger recommended that she create a revocable living trust with a pour over will. He also recommended that the trust contain a supplemental needs trust for the benefit of Emily should Nelda predecease her. Gudger informed Nelda that as a result of the supplemental needs trust, Emily would have access to trust funds. Gudger failed to act with the thoroughness and preparation reasonably necessary for the representation, because the terms of the supplemental needs trust he prepared did not take care of Emily’s financial needs and did not allow Emily to have access to trust funds. He also failed to ensure that trustee, Ernest Lundeen, had the necessary experience and knowledge to be a trustee of a supplemental needs trust. Nelda died shortly after she executed the revocable living trust and pour over will.

After Nelda died, Emily delivered some of her own funds to Gudger and asked that he have Lundeen manage them. When Gudger delivered those funds to Lundeen, he did not act with the skill and thoroughness reasonably necessary to represent Emily, because he failed to identify the source of the funds and failed to inform Lundeen that the funds belonged to Emily. As a result of his failure to provide competent representation to Emily, Lundeen subsequently refused to return the funds to Emily.

Lundeen was also designated the personal representative in Nelda’s will. After Nelda died, Gudger represented Lundeen in that capacity for a number of months. He subsequently undertook to represent Emily in claims against Lundeen for reformation or rescission of the trust and for return of the funds Gudger had previously transferred to Lundeen. Gudger failed to obtain consent after full disclosure from Emily and Lundeen before undertaking to represent Emily in those claims.

Shortly after Nelda died, Gudger undertook to represent her brother, Walter, in estate planning matters. Walter informed Gudger that he used the name Lee Larson as an alias. Before undertaking to represent Walter, Gudger, as lawyer for Lundeen, had discovered assets jointly owned by Nelda and Lee Larson. With regard to those assets, the interests of Lundeen and Walter were adverse. Gudger failed to obtain consent after full disclosure from Walter and Lundeen before undertaking to represent Walter in estate planning matters.

PAUL D. GEAR
OSB #96293
Pendleton
180-day suspension
On Aug. 30, 2002, the disciplinary board approved a stipulation suspending Pendleton lawyer Paul D. Gear from the practice of law for 180 days, effective Sept. 2, 2002, for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 1-103(C) (failure to respond in bar investigation), DR 6-101(B) (neglect of a legal matter), DR 7-101(A)(1) (intentional failure to seek client’s objectives) and DR 7-101(A)(2) (intentional failure to carry out a contract of employment).

In late April 1999, Gear undertook to represent a defendant in a forcible entry and detainer proceeding. His client had previously deposited into court one month’s rent. On June 5, 1999, the court entered a money judgment in favor of Gear’s client. For the next year, Gear’s client made numerous attempts to contact Gear about return of the funds he had paid into court. Gear failed to respond to his client’s inquiries and failed to take any action to have the funds returned.

Gear’s client then sent a letter to the court requesting return of the funds. On July 21, 2000, the court sent a letter to Gear and the opposing lawyer encouraging them to confer and agree upon a distribution of the funds. The opposing lawyer made numerous attempts to confer with Gear, but Gear did not return any of his telephone calls. He then sent a letter to the court asserting that his client was entitled to a portion of the fund. Gear failed to respond to the court’s letter.

The court set the matter for a hearing on Oct. 9, 2000. On Oct. 6, 2000, Gear informed the opposing lawyer that he would compensate that lawyer’s client for the amount of the deposit it was claiming. Gear also represented to the court that the matter had settled. At the time Gear made that representation, he knew it was false because he had not communicated with his client. When Gear informed the court that the matter had settled, he was instructed to submit settlement documents to the court. Because Gear failed to submit settlement documents to the court, the court set the matter for a hearing on March 2, 2001. Gear failed to take any action on the matter and failed to appear at the hearing.

Gear’s client then filed a complaint with the bar. Gear failed to respond to disciplinary counsel’s request for information regarding the matter.

As a result of another disciplinary proceeding, Gear has been suspended from the practice of law since Sept. 17, 2001. In re Gear, 15 DB Rptr 200 (2001).

BEA ANNE ALLAIRE
OSB #99465
Sammamish, Wash.
90-day suspension
On Sept. 13, 2002, the disciplinary board approved a stipulation for discipline suspending Bea Anne Allaire for 90 days for violation of DR 1-103(C) (failure to cooperate), DR 6-101(B) (neglect), DR 7-101(A)(1) (intentional failure to seek a client’s lawful objectives), DR 7-101(A)(2) (intentional failure to carry out a contract of employment) and DR 9-101(C)(3) (failure to account for client funds).

A client retained Allaire to prepare a simple will, an advance directive for health care decisions and a durable power of attorney. The client paid a $200 retainer. About five months later, Allaire prepared drafts of the estate planning documents and transmitted them to the client. The client reported that the documents contained some errors and returned them to Allaire. The following month, Allaire prepared new drafts of the documents, which she again presented to her client. The client again reviewed the documents and found that some of the errors remained. She again returned the documents to Allaire for correction. Thereafter, Allaire failed to complete the legal services she had agreed to perform and failed to communicate with her client. After hearing nothing from Allaire for about two months, the client attempted to contact her by telephone and by letter. Allaire received the client’s communications, but did not respond. More than 10 months had passed since the client retained Allaire to perform the legal services.

The client filed a complaint with the OSB. Allaire received the bar’s correspondence, but did not respond. The matter was referred to the local professional responsibility committee for investigation. Allaire cooperated with the LPRC.

At no time during the representation or after the client filed a complaint with the bar did Allaire provide her client with the final documents or a statement of her time and services or otherwise account to her client for the funds paid for legal services.

Allaire was admitted to practice in 1999. She had no prior record of discipline.

THOMAS J. LEKAS
OSB #60049
Portland
Public reprimand
On Aug. 30, 2002, the disciplinary board approved a stipulation for discipline reprimanding Thomas Lekas for violation of DR 5-101(A) (lawyer self-interest conflict) and DR 6-101(A) (failure to provide competent representation).

Lekas represented a native of Canada who was the subject of an Immigration and Naturalization Service proceeding to remove him from the United States. Lekas filed a notice of appearance and a motion to continue the case. Lekas failed to make any inquiry to determine the status of the motion and did not appear at the scheduled hearing. Federal law provides that in any removal proceeding in which the alien fails to appear, the immigration court shall order the alien removed in abstentia if certain conditions are met. As a courtesy, the immigration judge telephoned Lekas and an absentia order was avoided. The case was continued.

Lekas did not inform his client that the court had denied his motion to continue the case, that he had not appeared at the scheduled hearing or that an abstentia order had been avoided. He later appeared with his client in the immigration court, but delayed informing his client what occurred at the hearing from which the client was excused.

The immigration court scheduled the client’s case for another master calendar hearing. Lekas received notice of the hearing, but failed to send a copy of the notice to his client or otherwise notify him about the hearing. Neither Lekas nor the client appeared. The immigration court entered an abstentia order, which ordered the client removed from the United States. Lekas received a copy of the order, but did not provide the client with a copy or otherwise notify him of the order.

Lekas continued to represent the client when the exercise of his professional judgment on the client’s behalf was likely to be or reasonably may have been affected by his own financial, business, property or personal interests. He did not obtain the client’s consent to his continued representation, after full disclosure.

On his receipt of the removal order and without the client’s knowledge and consent, Lekas filed a motion for reconsideration of the abstentia order in a form that did not comply with federal law. Lekas did not review and was otherwise unfamiliar with the requirements of the law before he submitted motion to the court. The motion did not establish a basis for reconsideration of the abstentia order in form or substance. The court denied the request for reconsideration and sent a copy of the order to Lekas. Thereafter, Lekas failed to timely provide the client with a copy of the motion for reconsideration, the order denying the motion, and otherwise failed to promptly notify the client about the abstentia order and other matters. Lekas ultimately notified the PLF, but did not notify the client about the abstentia order, the motion for reconsideration or the court’s order denying the motion for reconsideration for almost a month.

Lekas was admitted to practice in 1960. He had no prior record of discipline.

NEAL C. LEMERY
OSB #80072
Tillamook
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on Aug. 30, 2002, Tillamook lawyer, Neal C. Lemery, was publicly reprimanded for violating DR 5-101(A)(1) (lawyer’s self-interest conflict).

The charge arose as a result of Lemery’s recommendation that his client agree to appoint a close personal friend and employee of Lemery’s as successor guardian and conservator of the estate of an elderly woman. Lemery failed to disclose his professional and personal relationship with the individual he recommended as successor guardian and conservator or that this relationship might reasonably affect the exercise of his professional judgment on behalf of his client. The successor conservator mismanaged the estate and was eventually surcharged by the court.

Lemery was admitted to practice in 1980 and had a prior, but remote, record of formal discipline.

HERB WEISSER
OSB #85361
Portland
Public reprimand
On Aug. 30, 2002, the disciplinary board approved a stipulation for discipline reprimanding Herb Weisser for violation of DR 5-101(A) (lawyer self-interest conflict).

Weisser represented the wife in a dissolution of marriage matter. During the representation, Weisser and his client acknowledged a mutual personal interest in one another and engaged in a personal relationship. Weisser continued employment as the client’s attorney when the exercise of his professional judgment on her behalf was likely to be or may reasonably have been affected by his own personal interests, without making full disclosure and obtaining the client’s consent as defined by DR 10-101(B).

Weisser was admitted to practice in 1985. He had no prior record of discipline.

WILLIAM S. JUDY III
OSB #79463
Grants Pass
Form B resignation
Effective Sept. 24, 2002, the Oregon Supreme Court accepted the Form B resignation of Grants Pass attorney William S. Judy III.

At the time of the resignation, Judy was being investigated by the Local Professional Responsibility Committee with respect to several allegations that he had borrowed or converted client funds for his own use in an investment scheme. In some of the instances, Judy allegedly made some effort at full disclosure; in others, he did not. In one instance, he allegedly borrowed funds from an estate of which he was conservator, without informing the court.

Judy resigned before the allegations against him were considered by the SPRB. However, the pending allegations raised ethical issues under DR 1-102(A)(3) (conduct involving dishonesty, deceit, fraud or misrepresentation); DR 5-101(A) (conflict of interest – lawyer self-interest) and DR 5-104(A) (business transaction with clients).

Judy’s client files and client records have been placed in the custody of Patrick J. Kelly of Grants Pass.

DOUGLAS S. SNYDER
OSB #95161
Portland
One-year suspension
On Sept. 24, 2002, the Oregon Supreme Court approved a stipulation for discipline suspending Portland attorney Douglas S. Snyder for one year for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103(C) (failure to cooperate); DR 5-105(E) (current client conflict of interest); DR 6-101(A) (competent representation) and DR 6-101(B) (neglect of a legal matter). The stipulation was effective 60 days after the date of the order.

The discipline arose out of Snyder’s handling two separate client matters. In the first, Snyder represented a client in a dissolution of marriage case. In February 2000, the parties appeared for trial but reached a settlement agreement. Snyder was ordered to prepare the judgement of dissolution incorporating the agreement. Despite the order and repeated requests by opposing counsel, Snyder did not do so. In June 2000, the client filed a complaint with the bar but Snyder still took no action to prepare the judgment. Snyder also failed to respond to requests by Disciplinary Counsel’s Office for a response to the complaint and to requests from the Local Professional Responsibility Committee for an interview.

In October 2000, the court sent Snyder a notice advising that the case would be dismissed for want of prosecution. Snyder took no action and the case was dismissed. Snyder stipulated that he violated DR 1-102(A)(4), DR 1-103(C) and DR 6-101(A) and (B).

In the second matter, Snyder undertook to represent mother and daughter who were involved in an automobile accident as passengers. The driver of the other vehicle had a policy limit of $25,000. At no time during the representation did Snyder discuss any potential conflict of interest between mother and daughter that could arise as a result of the minimal policy limits. To the extent full disclosure and consent were available to remedy any likely conflict of interest, Snyder undertook the multiple representation without the consent of both clients after full disclosure in violation of DR 5-105(E).

Snyder proceeded to file lawsuits on behalf of both clients. On the day of trial the case was reported as settled, and the court subsequently entered a judgment of dismissal. Snyder believed that the insurance companies for both drivers had made settlement offers, but he failed to accept one of the offers. When the clients asked about the second settlement, Snyder prepared and presented to them a purported settlement accounting showing the balance due the clients. In response to his clients’ requests about recovery of their share, Snyder represented that the check was in the mail. Both the accounting and the statement about the check were false, and Snyder knew them to be false when he made them, in violation of DR 1-102(A)(3). By failing to accept the settlement offer and timely complete the matter, Snyder also neglected a legal matter in violation of DR 6-101(B).

The stipulation recited that Snyder had no prior disciplinary record, was inexperienced in the practice of law, did not act with a selfish motive and was remorseful for his conduct.

BRIAN M. KEITH
OSB #85056
Eugene
Form B resignation
On Sept. 24, 2002, the Oregon Supreme Court accepted the Form B resignation of Brian M. Keith of Eugene, Oregon. The resignation was submitted following Keith’s suspension by the California Supreme Court in February 2001, for misappropriating client funds. The resignation became effective immediately.

PHILIP J. GROH
OSB #95281
Salem
Form B resignation
Effective Oct. 1, 2002, the Oregon Supreme Court accepted the Form B resignation of Salem lawyer Philip J. Groh. At the time of the resignation, formal disciplinary proceedings were pending against Groh for multiple violations of the disciplinary rules, including: DR 1-102(A)(3) (dishonesty - conversion of client funds); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103(C) (failure to cooperate with disciplinary authorities); DR 1-103(F) (failure to cooperate with the State Lawyers’ Assistance Committee); DR 2-110(A) (improper withdrawal); DR 6-101(B) (neglect); DR 7-102(A)(2) (intentional failure to carry out a contract of employment); DR 9-101(A) (failure to deposit and maintain client funds in trust); DR 9-101(C)(3) (failure to account for client funds) and DR 9-101(C)(4) (failure to promptly deliver client property).

In addition to the formal proceeding, the bar filed in 2001 a petition for suspension during pendency of disciplinary proceedings pursuant to BR 3.1. The court granted the petition. Groh has been suspended from the practice of law since December 27, 2001. Groh was admitted to practice in Oregon in 1995. He had no prior record of discipline.

KEITH L. HAYES
OSB #90295
Salem
Public reprimand
On Oct. 4, 2002, the disciplinary board approved a stipulation reprimanding Salem lawyer Keith L. Hayes for violating DR 6-101(B) (neglect of a legal matter).

Hayes undertook to represent clients in a Chapter 13 bankruptcy proceeding. When Hayes was retained, he knew his clients were in arrears on making payments to one creditor and knew that one of his clients’ primary concerns was to avoid repossession of the vehicle that secured the debt to that creditor. Despite this knowledge, Hayes failed to timely file the Chapter 13 petition and the clients’ vehicle was repossessed. Hayes prevented the creditor from selling the vehicle and provided for it to be returned to his clients.

That same creditor then filed a motion to terminate the automatic stay. Hayes failed to respond to that motion. The lawyer representing the creditor then submitted a proposed order terminating the automatic stay, which the court thereafter signed. Hayes failed to object to the proposed order and failed to take any other substantive action to protect his clients’ interest. The clients’ vehicle was repossessed again. During this same time, Hayes also failed to return his clients’ telephone calls inquiring about the matter.

JAMES DODGE
OSB #83033
Portland
3-year suspension (21 months stayed)
On Sept. 20, 2002, the supreme court approved a stipulation for discipline in which Portland lawyer James A. Dodge received a two-year suspension for violation of DR 1-102(A)(3) (conduct involving misrepresentation); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103(C) (failure to cooperate with the bar); DR 2-106(A) (illegal or excessive fee); DR 2-110(A)(2) (improper withdrawal); DR 2-110(B)(4) (failure to withdraw upon discharge by client); DR 6-101(A) (lack of competence); DR 6-101(B) (neglect of a legal matter); DR 7-101(A)(2) (failure to carry out a contract of employment); DR 9-101(C)(3) (failure to account for client funds); and DR 9-101(C)(4) (failure to return client property) in five client matters. All but three months of the suspension were stayed pending Dodge’s completion of a two-year probation that involves medical and psychiatric treatment, supervision of his office practice, and regular reporting to Disciplinary Counsel’s Office. Dodge’s suspension commenced Oct. 15, 2002.

The stipulation described five workers’ compensation or other public benefits cases where, generally, Dodge failed to actively pursue his clients’ cases, failed to appear for hearings, and made misrepresentations about the reasons for his conduct or the status of his clients’ cases.

In arriving at a sanction, the stipulation recited that at the time of the conduct, Dodge was suffering from the effects of physical and mental conditions that substantially contributed to his conduct. The stipulation also recited that under treatment, Dodge is presently physically and mentally capable of engaging in the practice of law.


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