Oregon State Bar Bulletin ó NOVEMBER 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.

RANKIN JOHNSON
OSB #96490
Salem
Public reprimand
By order dated Sept. 22, 2003, the disciplinary board approved a stipulation for discipline whereby Salem lawyer Rankin Johnson was reprimanded for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 2-110(A)(2) (failure to take reasonable steps to protect a clientís interests upon withdrawal from employment).

In March 2000, Johnson represented a client in the appeal of a criminal conviction. The primary issue on appeal was the manner in which the court had imposed sentence, and the execution of that sentence and all outstanding warrants for the clientís arrest had been stayed pending a resolution of the appeal.

Johnsonís office file contained current residential and business addresses for the client as well as the clientís cellular and home telephone numbers. The client had also recently been in contact with Johnsonís office concerning the status of his appeal. On March 7, 2000, the day before the appellate brief was due, Johnson made one telephone call to attempt to contact the client at his residence, but was unsuccessful. On that day, Johnson also acquired information from the clientís trial counsel, a probation officer and OJIN that the client was on 'abscond status.' In fact, the client had not absconded and continued to live and work at the addresses previously provided to Johnson. Nonetheless, on March 8, 2000, Johnson filed a motion to withdraw from representing the client on the ground that he had been unable to maintain contact with the client and had no current address at which to communicate with him.

Johnson did not send the client a copy of his motion to withdraw, nor did he advise the client of his intent to file this motion. When the motion to withdraw was granted, the clientís appeal was dismissed, the stay of his sentence was revoked, and the trial court reissued a previously recalled arrest warrant. Johnson did not advise his client of any of these trial court actions, and the client was subsequently arrested at home and held in jail for several hours. Johnson later obtained a reinstatement of the clientís appeal, but the client was required to employ other counsel to reinstate the stay of his sentence.

Johnson and the bar stipulated that the client suffered actual injury in that he was incarcerated and incurred additional legal fees to rectify the consequences of Johnsonís conduct. Johnson has no prior disciplinary record, did not act with a dishonest or selfish motive, made a good faith effort to rectify the consequences of his misconduct, is of good character and reputation and is remorseful about the consequences to his client of his conduct.

KAREN E. DUNCAN
OSB #97160
Redmond
90-day suspension
Pursuant to a stipulation for discipline approved by the disciplinary board on Sept. 24, 2003, Redmond lawyer Karen E. Duncan was suspended for 90 days for violation of DR 2-101(A)(1) (misleading communication about the lawyer or the lawyerís firm) and DR 3-101(A) (aiding a non-lawyer in the practice of law). Duncanís suspension is effective Nov. 21, 2003.

In 1997, Duncan, then a California lawyer, took and passed the Oregon bar examination. Duncanís law partner, Donald E. Oliver, took the Oregon bar examination in 1997 and 1998, but Oliverís admission to the Oregon State Bar was delayed until March 3, 2000.

On or about Jan. 1, 1998, Duncan began practicing law in Oregon under the law firm name, 'Oliver and Duncan.' On a number of occasions before Oliver was admitted in Oregon, Duncan used law firm letterhead and ran advertisements that represented that both she and Oliver were licensed to practice law in both Oregon and California. While Oliverís application for admission in Oregon was pending, he repeatedly: wrote and signed letters to opposing counsel or opposing parties regarding substantive matters; rendered legal advice to clients in person or in telephone conferences and engaged in substantive negotiations with opposing counsel. Oliver also represented a client at a deposition, signed a motion and filed it with the court and made a routine court appearance without supervision. Duncan was or should have been aware of these activities. Although Duncan did make efforts to supervise Oliverís activities before he was admitted to the Oregon State Bar, these efforts were inadequate to assure that Oliver did not practice law in Oregon before he was licensed to do so.

Duncan and the bar stipulated that Duncan acted with a selfish motive and engaged in a pattern of misconduct that involved multiple offenses. However, she had no prior disciplinary record, made full and free disclosure to the bar, is of good character and had obtained ethics advice from private counsel in an attempt to mitigate or resolve the questions raised during the barís investigation of her conduct.

LONA L. MONSON
OSB #89097
Kansas City, Mo.
1-year suspension
Effective Sept. 24, 2003, the Oregon Supreme Court suspended Lona L. Monson of Missouri, for a period of one year for violation of: DR 1-102(A)(3) (conduct involving misrepresentation); DR 3-101(A) (aiding a non-lawyer in the practice of law); DR 3-102(A) (sharing legal fees with a non-lawyer) and DR 5-101(A)(1) (lawyerís self-interest conflict).

Beginning in about June 2000, Monson accepted client referrals from a Texas business (ALS) that was engaged in direct mailings to the public for the purpose of identifying persons interested in estate planning. ALS employed insurance salespeople to make presentations about the benefits of living trusts as estate planning devices to potential customers and to attempt to sell insurance products to fund the living trusts. These agents recommended living trusts to potential customers as appropriate estate planning devices for their circumstances and obtained information concerning the potential customerís assets. If a potential customer was interested in obtaining a living trust, the agent had the customer sign an engagement letter by which the customer retained Monson to prepare the estate planning documents. The agent would then collect a fee from Monsonís clients and forward the fee to Monson. Monson would pay ALS all but $400 of this fee.

Monsonís engagement letter did not disclose: the nature or terms of her relationship with ALS; that the ALS agents would attempt to sell insurance products to her clients; that the agents would receive commissions from the sale of insurance products; that Monson had agreed to pay most of her fee to ALS; that her law practice was primarily in another state or states; that she was only in her Portland office approximately once a month or that the agents who had personal contacts with the clients were not her employees.

The ALS agents who had personal contact with Monsonís clients were selected, paid and made available to Monson by ALS. Monson was not the immediate supervisor of any ALS agent, but under the circumstances could have anticipated that these agents would render legal advice to her clients. Monson did not take appropriate steps to prevent this conduct. Approximately 368 Oregon residents executed living trusts and related estate planning documents prepared by Monson.

Monson and the bar stipulated that Monson engaged in a pattern of misconduct involving multiple offenses and vulnerable victims. Monson had substantial experience in the practice of law but had no prior disciplinary record, was cooperative in the barís investigation and entered into an assurance of voluntary compliance with the Oregon Department of Justice restricting her activities in Oregon.

PEDRO L. FERNANDEZ
OSB #97480
West Linn
Form B resignation
Effective Nov. 23, 2003, the Oregon Supreme Court accepted the Form B resignation of West Linn lawyer Pedro L. Fernandez. At the time of the resignation, Fernandez was being investigated for alleged violations of the disciplinary rules, including: DR 1-102(A)(3) (dishonesty - conversion of client funds); DR 1-103(C) (failure to cooperate); DR 6-101(B) (neglect); DR 7-101(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 as requested by the client).

Fernandez was admitted to practice in Oregon in 1997. He had no prior record of discipline. Fernandez represented in his resignation that his client files and records have been or will be delivered to Portland lawyer Phylis C. Myles.

G. JEFFERSON CAMPBELL
OSB #75061
Medford
Public reprimand
On Sept. 8, 2003, the disciplinary board approved a stipulation for discipline reprimanding Medford lawyer G. Jefferson Campbell for violation of DR 2-106(A).

A client retained Campbell to pursue personal injury and property damage claims. The client signed a contingent fee agreement, which in part provided that if the client decided to drop the claims or decided to settle for an amount that Campbell did not recommend, then the client agreed to pay him for all of the time expended on the matter at an hourly rate of 1Ĺ times the standard hourly rate of each attorney or paralegal performing services on the claim, or 33 1/3 percent of the settlement amount, whichever was greater.

During the representation, the client and Campbell disagreed on how the case should proceed. The client terminated the representation and settled the case for an amount that was less than Campbell had recommended. Campbell filed a notice of attorney lien asserting that he was entitled to attorney fees in an amount computed at 1Ĺ times his hourly rate for the time spent on the clientís case. That amount exceeded a one-third contingency fee on the settlement amount, and exceeded the amount Campbell would have billed the client at his usual hourly rate. Thereafter, Campbell filed a motion with the court for an award of the full amount of his attorney lien computed at 1 Ĺ times his hourly rate, or if the trial court determined that the provision was unenforceable, to determine the amount of Campbellís fees by quantum meruit.

The court refused to enforce the provision in Campbellís fee agreement. The court found that the fee Campbell claimed was excessive and the provision in his fee agreement was unconscionable and void as a penalty. The court awarded Campbell only a one-third contingency fee. Campbell filed a notice of appeal. The court of appeals affirmed the trial courtís decision without opinion.

Campbell was admitted to practice in 1975 and has a prior record of discipline.