Oregon State Bar Bulletin — DECEMBER 2003

Discipline

Note: About 12,000 persons 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.

KEVIN T. LAFKY
OSB #85263
Salem
30-day suspension

Pursuant to a stipulation for discipline approved by the disciplinary board on Oct. 1, 2003, Kevin T. Lafky of Salem was suspended from the practice of law for a period of 30 days, effective Oct. 4, 2003, for violation of DR 5-105(E) (current client conflict of interest).

Lafky stipulated that for approximately eight years before January 2000, he represented a client in litigation and administrative proceedings who was accused of wrongdoing against and financial abuse of elderly persons arising out of his sale or promotion of living trusts. In January 2000, this client referred an elderly man to Lafky for representation in legal matters relating to drafting a living trust. The elderly client asked Lafky to draft a living trust that would name the first client as successor trustee. Although Lafky suggested several reasons why it might not be appropriate for the elderly client to name a person who was not a relative as his successor trustee, Lafky ultimately drafted a trust that named his first client as successor trustee.

When Lafky undertook to represent the elderly client, the elderly client had an interest in knowing, and Lafky had a duty to advise him of any and all significant facts within Lafky’s knowledge regarding the qualifications of any person the elderly client chose to be his successor trustee, as well as any risks associated with that person serving as successor trustee and acquiring knowledge of the elderly client’s financial conditions. Lafky’s first client also had a right to the preservation of, and Lafky had a duty to preserve, the confidential and secret information Lafky had obtained in his prior and ongoing representation of this client.

In the course of Lafky’s representation, but without Lafky’s knowledge, the elderly client gave his first client access to funds and information about his financial condition, and the first client misappropriated some of the elderly client’s money for his own use.

In arriving at a sanction, the stipulation recited Lafky’s prior disciplinary record (a 1997 public reprimand and a 1999 public reprimand). The sanction also took into consideration that Lafky had substantial experience in the practice of law, but did not act with a dishonest or selfish motive, made full and free disclosure to the bar and the bar proceedings were delayed.

PHILLIP C. GILBERT
OSB #92312
Gresham
30-day suspension
On Oct. 29, 2003, the disciplinary board approved a stipulation for discipline whereby Gresham attorney Phillip Gilbert was suspended from the practice of law for 30 days, effective Nov. 1, 2003, for his violation of DR 1-102(A)(3) (misrepresentation).

Gilbert represented a client in a personal injury claim arising out of an auto accident. Days before the statute of limitations was set to expire, without the knowledge or authority of his client, Gilbert represented to the opposing party’s insurance company that he had authority to settle the claim. The following day, without the knowledge or authority of his client, Gilbert settled the claim and confirmed the settlement in a letter to the insurance company.

WARREN G. MOE
OSB #91082
Astoria
Form B resignation
Effective Oct. 21, 2003, the Oregon Supreme Court accepted the Form B resignation of Astoria lawyer Warren G. Moe. At the time of resignation, there was a pending formal complaint alleging that Moe: improperly withdrew and failed to provide competent representation to one client, in violation of DR 2-110(A)(2) and DR 6-101(A); converted client funds, charged a clearly excessive fee and neglected another client’s legal matter, in violation of DR 1-102(A)(3), DR 2-106(A) and DR 6-101(B); and charged a clearly excessive fee, improperly withdrew and neglected a third client’s legal matter, in violation of DR 2-106(A), DR 2-110(A)(2) and DR 6-101(B). In all three matters, Moe was also charged with failing to cooperate in the bar investigation, in violation of DR 1-103(C).

Moe was admitted to practice in April 1991. His resignation cited that client files and records have been or will be placed in the custody of a number of Oregon lawyers or the Professional Liability Fund.

BRIAN A. BUCHANAN
OSB #92243
Salem
Public reprimand
On Oct. 31, 2003, the disciplinary board approved a stipulation for discipline reprimanding Salem lawyer Brian A. Buchanan for violating DR 7-106(A) (lawyer shall not disregard a ruling of a tribunal made in the course of a proceeding).

On April 23, 2003, a Marion County Circuit Court judge signed a restraining order prohibiting Buchanan from entering his wife’s residence. Thereafter, Buchanan entered his wife’s residence in violation of that order.

In arriving at a sanction, the stipulation recited that at the time of the conduct Buchanan was experiencing personal or emotional problems as he and his wife were going through a divorce, and that he was sentenced to 14 days in jail and paid a fine after pleading guilty to violating the restraining order in a separate proceeding.

ELIZABETH A. CLARK
OSB #90230
Portland
120-day suspension
Effective Nov. 18, 2003, the disciplinary board suspended Portland attorney Elizabeth Clark for 120 days for violation of DR 6-101(B) (neglect of a legal matter), DR 7-101(A)(2) (intentionally failing to carry out a contract of employment) and two counts of DR 1-103(C) (failing to respond to bar inquiries). Clark is also required to seek formal reinstatement pursuant to BR 8.1 at such time as she elects to return to active status.

Clark undertook to file a small estate affidavit but thereafter failed for many months to inform her client about the status of the small estate procedure or respond to the client’s attempts to contact her, even though Clark knew she was obligated to do so. Clark thereafter failed to respond to inquiries from the bar related to the small estate matter and on another unrelated bar complaint.

Clark was admitted to practice in 1990 and has a prior record of discipline. However, the disciplinary board also took into consideration the fact that there was no evidence of a dishonest or selfish motive, and that Clark was suffering from personal or emotional difficulties during the period when she failed to respond to her client and the bar.

DUANE C. MIKKELSEN
OSB #82335
Molalla
1 year suspension (9 months stayed)
On Nov. 18, 2003, the Oregon Supreme Court approved a stipulation for discipline in which Molalla lawyer Duane C. Mikkelsen received a one-year suspension for violation of DR 1-102(A)(3) (conduct involving misrepresentation); DR 5-101(A) (self-interest conflict); DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (failure to return client property). All but 90 days of the suspension were stayed pending Mikkelsen’s completion of a three-year probation that involves medical treatment, supervision of his office practice and regular reporting to disciplinary counsel’s office. The stipulation is effective on Jan. 17, 2004.

In one matter, Mikkelsen failed to actively pursue his clients’ case, failed to communicate with them and made misleading statements or misrepresentations to his clients, the opposing lawyer and the court. He also failed to promptly return file materials to the clients when they requested it.

In a second matter, Mikkelsen failed to pursue his client’s case, failed to communicate with her and failed to disclose material information to her. He also continued to represent her without obtaining consent after full disclosure when his professional judgment may have been affected by his personal interests in minimizing or eliminating malpractice claims his clients may have had against him.

In arriving at a sanction, the stipulation recited that at the time of the conduct, Mikkelsen was suffering from the effects of a mental condition that contributed to his conduct. The stipulation also recited that Mikkelsen has been successfully treating the condition and is presently capable of engaging in the practice of law.

RICHARD SPEIGHT
OSB #74309
Portland
Public reprimand
On Oct. 31, 2003, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Richard Speight for violating DR 2-110(A)(2) (improper withdrawal), DR 5-101(A) (personal interest conflict) and DR 6-101(B) (neglect of a legal matter).

Speight was retained by clients to represent them in connection with their planned purchase of a business. In addition, Speight agreed to perform 'closing services' for the transaction, which included taking possession of $20,000 in earnest money from his clients to be tendered to the seller upon closing.

When his clients and the seller were unable to agree upon certain terms and the time for closing expired, Speight refused to tender the earnest money to either party, believing he had a fiduciary obligation to the seller to preserve the earnest money in the event of a dispute. Speight maintained the funds in his trust account and suggested to his clients that they seek separate legal counsel. Speight contemplated that an arbitration would take place or a lawsuit would be filed; however, for nearly two years, neither occurred. Speight received periodic updates from those connected with the transaction that led him to believe a resolution was imminent. However, because Speight no longer considered himself to be the lawyer for his clients, he did not communicate these updates to them, he failed to confirm whether they were engaged in efforts to resolve the earnest money dispute and he failed to respond to their demands for the earnest money.

Speight finally deposited the funds with the court in litigation initiated by the seller, and his clients ultimately settled for the return of $12,000 of the earnest money. Speight has no prior record of discipline, and the bar stipulated that there was no evidence of a dishonest or selfish motive. Speight also was credited with being cooperative in the disciplinary proceeding.