Oregon State Bar Bulletin — JANUARY 2003

Discipline

Note: Nearly 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.

F. WILLIAM HONSOWETZ
OSB #72124
Eugene
Public reprimand
Pursuant to a stipulation for discipline approved by the Oregon Supreme Court on Nov. 19, 2002, Eugene lawyer F. William Honsowetz was reprimanded for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice). In conjunction with the approval of the stipulation, the bar’s appeal of the trial panel opinion in the proceeding was dismissed.

The charges arose out of Honsowetz’s representation of a husband in a marital dissolution proceeding. On three occasions Honsowetz presented orders or judgments to the court for signature without first having sent copies of these orders or judgments to the wife. At least one order submitted by Honsowetz did not accurately reflect the court’s ruling from the bench, and subsequent proceedings were required to correct the provisions of that order. At all relevant times, UTCR 5.100 required service of a proposed order upon an opposing party a certain number of days (the number depending on whether the opposing party was represented or not) before submission of the order to the court.

In arriving at the sanction, the stipulation recited that Honsowetz had no prior disciplinary record, that he is of good character and enjoys an excellent reputation in his community, that he has demonstrated remorse, and that there was lengthy delay in the proceedings.

JOHN P. DAVENPORT
OSB #75088
Portland
Two-year suspension
On June 27, 2002, the Oregon Supreme Court issued an opinion suspending Portland lawyer John P. Davenport from the practice of law for two years. A petition for reconsideration filed by Davenport was allowed by the court but, on Nov. 22, 2002, the court adhered to its prior opinion with a minor modification. The suspension is effective Dec. 31, 2002.

Davenport represented the Professional Liability Fund (PLF) in connection with the PLF’s defense of a legal malpractice case. On behalf of the PLF, he employed a strategy whereby he located and purchased an unpaid judgment that was pending against the malpractice plaintiffs, and then attempted to execute on the judgment by forcing a sheriff’s sale of the plaintiffs’ asset – the malpractice claim. If successful, the PLF hoped to gain control of the claim and settle or dismiss it. The PLF wanted its involvement in the judgment acquisition strategy kept secret, so Davenport carried out the strategy in the name of a shell corporation.

Counsel for the malpractice plaintiffs deposed Davenport about the shell corporation and the validity of the acquired judgment. The court found that in the deposition, Davenport knowingly gave false answers to questions that sought information about the person or persons behind the shell corporation. The false answers were misrepresentations in violation of DR 1-102(A)(3) (prohibiting misrepresentations), DR 1-102(A)(4) (prohibiting conduct prejudicial to the administration of justice) and DR 7-102(A)(5) (making a false statement of fact). The court also determined that Davenport violated a criminal statute in giving the false answers, in violation of DR 1-102(A)(2) (prohibiting a criminal act that adversely reflects upon a lawyer’s honesty).

The court rejected Davenport’s assertion that his subsequent correction of the false deposition answers, pursuant to applicable rules of procedure permitting such correction, cured his initial misrepresentations. However, the court took the corrections into account in determining Davenport’s disciplinary sanction.

SAMUEL J. NICHOLLS
OSB #81086
Lake Oswego
Two-year suspension; all but 90 days stayed, with probation
On Nov. 19, 2002, the Oregon Supreme Court approved a stipulation for discipline in which Lake Oswego lawyer Samuel J. Nicholls was suspended from the practice of law for two years, 90 days of which was imposed effective Jan. 1, 2003. The remainder of the suspension will be stayed pending a two-year term of probation.

The stipulation dealt with four separate client complaints. In the first matter, Nicholls neglected a civil complaint that he filed on behalf of the clients, was not communicative with the clients and did not provide an appropriate accounting of how a retainer had been applied, in violation of DR 6-101(B) and DR 9-101(C)(3). In a second matter, Nicholls did not respond to requests of the clients or their new lawyer for the return of client file material, in violation of DR 9-101(C)(4).

In a third matter, Nicholls neglected two civil complaints he had filed on behalf of his clients, resulting in both cases being dismissed for lack of prosecution. He also returned many, but not all, of the files that the clients and their new lawyer requested. This conduct was in violation of DR 6-101(B) and DR 9-101(C)(4). Nicholls violated DR 6-101(B) in a fourth client matter when his neglect resulted in a civil suit being dismissed for lack of prosecution.

With all four client complaints, Nicholls either did not respond to initial inquiries from the bar or did not cooperate fully with the investigation by the local professional responsibility committee.

During the two-year probation, Nicholls must, among other conditions, continue with counseling and submit periodic reports to the bar demonstrating his compliance.

ORRIN R. ONKEN
OSB #82359
Portland
Reinstatement
On Sept. 26, 2002, the Oregon Supreme Court issued an opinion conditionally reinstating Orrin Onken to the practice of law, effective Jan. 2, 2003.

On Dec. 13, 1994, the court accepted Onken’s Form B resignation. At the time, a formal complaint was pending against him alleging that on two occasions he violated DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).

Pursuant to BR 8.1(a)(ii), Onken submitted an application for reinstatement in January 2000. The court determined that Onken had satisfied his burden of proving that he had good moral character and general fitness to practice law and that his resumption of the practice of law would not be detrimental to the administration of justice or the public interest. Reinstatement is conditioned upon Onken completing 45 hours of continuing legal education within one year.

T. MICHAEL RYAN
OSB #91011
Pendleton
30-day suspension
Effective Dec. 1, 2002, the disciplinary board approved a stipulation for discipline suspending Pendleton attorney T. Michael Ryan from the practice of law for 30 days for violating DR 1-103(C) (failure to cooperate), DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (failure to promptly return client property).

The discipline arose as a result of Ryan’s handling of a Chapter 7 bankruptcy for a husband and wife. The petition was filed in May 1998 and named the Internal Revenue Service and the Oregon Department of Revenue as unsecured priority creditors. In August 1998, the court entered an order of discharge and both agencies were paid the full amount of the claims each had filed against the estate.

After the order of discharge was entered, the state pursued penalty amounts that it had claimed before discharge. Upon learning that the state was pursuing penalty amounts, the wife attempted to contact Ryan on numerous occasions as late as August 2000. At no time did Ryan return her letters or telephone calls. The client also made demand for return of her file documents.

The wife filed a complaint with the bar concerning Ryan’s failure to return her calls and file documents. Ryan did not respond to the inquiries from the bar. The matter was referred to the Local Professional Responsibility Committee ("LPRC") for investigation. Ryan did cooperate with the LPRC.

The stipulation recited that Ryan had a prior disciplinary sanction and substantial experience in the practice of law. It also recited that he did not act with a dishonest or selfish motive, and was remorseful for his conduct.

D. ERIC WOODARD
OSB #74348
Wilsonville
Public reprimand
On Dec. 5, 2002, the disciplinary board approved a stipulation reprimanding Wilsonville lawyer D. Eric Woodard for violating DR 6-101(B) (neglect of a legal matter).

Woodard took over primary responsibility for representing the plaintiff in a lawsuit for breach of contract. Before Woodard was involved, the court had signed a stipulated order abating the matter and transferring it to arbitration. The arbitration was set for early February 1999.

In early January 1999, Woodard filed a motion to dismiss/motion to reinstate in which he requested that the court reinstate the case to the circuit court docket or dismiss it, so that he could re-file it. The arbitrator denied the motion to reinstate, granted the motion to dismiss, and awarded the defendant $20,000 in attorney fees. The arbitrator’s award was filed in the circuit court and in April 1999, the court signed a judgment in favor of the defendant. Thereafter, Woodard filed a notice of appeal and request for trial de novo. The court denied the request for trial de novo.

Woodard failed to inform his client until the end of September 1999, and only after the client informed Woodard that some of his tenants had been served with writs of garnishment, that: 1) the arbitrator had awarded $20,000 in attorney fees to the defendant in February 1999; 2) a judgment had been taken against his business in April 1999; and 3) the request for trial de novo had been denied in June 1999.

In mitigation, the stipulation noted that Woodard did not have a dishonest or selfish motive, he was cooperative in the proceeding and was remorseful.

MICHAEL L. SPENCER
OSB #83090
Klamath Falls
60-day suspension
On Nov. 22, 2002, the Oregon Supreme Court filed an opinion suspending Klamath Falls lawyer Michael L. Spencer from the practice of law for 60 days for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation) and DR 9-101(C)(4) (failure to promptly return client property).

The discipline arose out of two separate matters. In the first, Spencer agreed to assist a California couple, whom he knew, to register a motor home in Oregon. The California residents signed the Department of Motor Vehicles ("DMV") registration and gave it to Spencer along with a personal check for the registration fee. Spencer delivered the registration form to the DMV along with his personal check for the registration fee. The registration form listed Spencer’s home address as the couple’s mailing address. They left blank the county of residence, and for county of use they listed "USA." By signing the form, the couple represented that their home was in Oregon. At no time were the couple residents of Oregon although husband had expressed an intent to move to Oregon and obtained an Oregon driver’s license. By registering the motor home in Oregon, the couple saved more than $20,000 in California state and county taxes. The court concluded that, by engaging in this conduct, Spencer violated DR 1-102(A)(3).

In the second matter, a woman left documents with Spencer to assist him in determining whether to represent the woman. After reviewing the documents and concluding that he did not want to take the case, Spencer gave the documents to his legal assistant. The assistant shredded some of the documents. When the woman requested return of the documents, Spencer was unable to return all of them. The court rejected Spencer’s argument that the duty to return client property under DR 9-101(C)(4) only applies to actual clients and held that the rule applies to one who consults with a lawyer with a view to obtaining services from the lawyer as the woman did in this case.

Spencer’s suspension will be effective 60 days from the date of the court’s decision.


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