Oregon State Bar Bulletin — OCTOBER 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.

STEVEN H. GORHAM
OSB #75136
Salem
Public reprimand
On Aug. 7, 2003, the disciplinary board approved a stipulation for discipline reprimanding Salem lawyer Steven H. Gorham for violating DR 5-101(A) (lawyer self-interest conflict of interest), DR 6-101(B) (neglect of a legal matter) and DR 7-101(A)(1) (intentionally failing to pursue client’s lawful objective).

In one matter, Gorham was appointed to represent a client in a petition for post-conviction relief filed in Marion County. During the six months following his appointment, Gorham failed to investigate or review the client’s legal matter and failed to respond to the client’s letter inquiring about the status of his legal matter. Shortly after Gorham was appointed, the client was transferred from a prison in Marion County to a prison in Malheur County. In response to Gorham’s inquiry, the client instructed Gorham not to transfer the matter from Marion County. Contrary to the client’s instructions, Gorham filed a motion to change venue from Marion County.

In another matter, Gorham was appointed to represent a client in a petition for writ of habeas corpus. Gorham failed to timely file a response to the state’s motion to dismiss. The court thereafter signed a conditional judgment of dismissal. For a number of months after the judgment of dismissal was signed, Gorham failed to respond to letters and telephone calls from his client and telephone calls from his client’s family members inquiring about the status of the matter. Ultimately, Gorham filed a response to the motion to dismiss, albeit late, and the client’s petition was reinstated.

In a third matter, Gorham was appointed to represent a client in appealing the denial of a petition for habeas corpus. Gorham obtained a number of extensions in which to file a brief. The court granted the last request for an extension and informed Gorham that no further extension would be granted. Because of a calendaring error, Gorham failed to timely file the brief and the court thereafter dismissed the appeal. After the court dismissed the appeal, Gorham informed his client about the dismissal, but failed to explain to the client the potential adverse impact on the client of continuing to have Gorham represent him and failed to recommend that the client seek independent legal advice.

The court eventually reinstated the appeal and gave Gorham a few weeks in which to file a brief. Gorham did not file a brief by the due date, but instead requested another extension. The court dismissed the appeal because a brief had not been filed. Gorham continued to represent the client after the court dismissed the appeal without explaining to the client the potential adverse impact on the client of continuing to have Gorham represent him and without recommending that the client seek independent legal advice.

JILL R. FOX
OSB #93272
McMinnville
Public reprimand
On Aug. 18, 2003, the disciplinary board approved a stipulation for discipline resulting in a public reprimand of McMinnville lawyer Jill R. Fox for violation of DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (delay in returning client property).

In October 2001, Fox was retained to represent a client in a creditor/debtor matter and accepted a retainer for fees and costs. From October 2001 until December 2002, Fox did not take any action in the matter or respond to the client’s inquiries. The client eventually terminated the attorney-client relationship and asked that his retainer be refunded. Fox did not return the retainer for two months.

The stipulation for discipline noted that Fox previously received a letter of admonition for neglect of a different matter during the same period of time. It also noted that, in this case, Fox did not intend to neglect the matter, but the press of other business and the sudden illness and later death of her law partner adversely affected Fox’s workload and her intentions to render services to the client. Fox ultimately met with the client and refunded the entire retainer.

ANITA C. SMITH
OSB #89359
Salem
Public reprimand
On July 15, 2003, the disciplinary board approved a stipulation for discipline in which Salem attorney Anita Smith was reprimanded for violating DR 5-101(A) (personal interest conflict) and DR 6-101(B) (neglect of a legal matter) in representing the same client in two separate cases.

Smith was hired for representation in connection with a wrongful termination claim. Shortly thereafter, the client was denied unemployment benefits, and Smith agreed to file an appeal of that denial. However, Smith misread the deadline on the notice and miscalendared the date, resulting in the request being denied as untimely.

Upon discovering her error, Smith met with the client to explain what had occurred, advised him to seek other counsel and notified the client that she would be notifying her malpractice carrier. However, Smith did not provide this information in writing, nor receive the client’s informed consent before she continued to represent him in his employment matter.

In January 2001, the client’s ex-wife served him with a motion for contempt. Smith filed a response and counterclaims, and the case went to hearing. The court verbally found in favor of Smith’s client. Smith received a letter decision in mid-March 2001 that provided that she was to prepare the written order for the court’s signature. The court’s letter did not address all of the issues, so Smith needed clarification before she could draft the order. However, Smith did not complete the order prior to being terminated by the client in February 2002.

The stipulation recited that Smith was admonished in 1995 for a personal interest conflict and had substantial experience in the practice of law. Smith did not act with a dishonest or selfish motive and fully cooperated in the bar proceedings.

WARREN JOHN WEST
OSB #73322
Bend
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on July 15, 2003, Bend lawyer Warren J. West was reprimanded for violating DR 5-101(A)(1) (lawyer’s self-interest conflict).

The charge arose out of West’s representation of a client whose daughter had been fatally injured in a single-car accident that occurred on a county road when the car in which she was a passenger failed to negotiate a sharp turn near the intersection of the county road and a state highway. West filed a tort claim notice with the county, but did not thoroughly investigate whether the state had any responsibility for the road design, maintenance, or signage at the accident site. Accordingly, West did not file a tort claim notice with the state and did no further investigation into the state’s possible liability.

After West filed a wrongful death and personal injury lawsuit against the county, he received actual knowledge that the state, rather than the county, was responsible for installing and maintaining proper signage on the road near the accident site accident. However, West did not file a tort claim notice with the state at that time. Instead, he filed an amended complaint, which added the state as a defendant in the litigation. The amended complaint was not filed within the statutory time limit for filing a tort claim notice to the state unless the 'discovery rule' applied or the state had had actual notice of the claim.

West’s failure to file a timely tort claim notice with the state may have constituted legal malpractice that would bar his client from asserting any claim against the state. Once West learned of his possible legal malpractice, the exercise of his professional judgment on behalf of his client was or reasonably may have been affected by his own financial, business, or personal interests in avoiding a legal malpractice claim. West continued to represent his client after he learned of his possible legal malpractice without first obtaining her consent after full disclosure. Ultimately, the client voluntarily dismissed the litigation with prejudice before the issue of the timeliness of the tort claim notice to the state was resolved by the court.

In determining the appropriate sanction, the disciplinary board considered that West had a prior disciplinary offense substantial experience in the practice of law. The disciplinary board also considered that West made full and free disclosure to the bar, that he is of good character and reputation, and that the disciplinary proceedings had been delayed.

THOMAS V. BRYANT
OSB #73362
Bend
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on Aug. 21, 2003, Bend lawyer Thomas V. Bryant was reprimanded for violating DR 3-101(B) (practicing law in a jurisdiction where to do so violates the regulations of the profession in that jurisdiction) and ORS 9.160 (unlawful practice of law).

The charges arose out of Bryant’s representation of clients in a Chapter 11 bankruptcy reorganization proceeding. Bryant transferred to inactive bar membership effective March 6, 2002, rendering him ineligible to practice law, but he remained the attorney of record in the bankruptcy proceeding. Immediately thereafter, Bryant perceived an emergency potentially damaging to the clients, and he prepared and submitted to the court, the bankruptcy trustee and the clients’ creditors a Notice of Amendment to Proposed Lease/Option. This notice was printed on Bryant’s 'Attorney at Law' pleading paper and designated him as representative of the debtors in possession. Other counsel was substituted for Bryant shortly after the notice was filed.

The sanction was determined in consideration of Bryant’s prior disciplinary record, that he did not act with a dishonest or selfish motive, that he had voluntarily transferred to inactive status, and that he has wound up and does not intend to resume his practice.

WILLIAM S. LABAHN
OSB #90001
Eugene
60-day suspension
On April 17, 2002, the Oregon Supreme Court issued an opinion suspending Eugene lawyer William S. LaBahn from the practice of law for 60 days.

LaBahn was retained to pursue claims against a retail store. The client had already been offered a settlement that he had rejected. On the last day to file within the statute of limitations, LaBahn filed a civil complaint on behalf of the client. He failed, however, to effect timely service within 60 days after filing the complaint. Therefore, the court notified LaBahn that it would dismiss the action unless he filed a proof of service within 28 days. LaBahn served the summons and complaint on the defendant, but thereafter failed to return proof of service to the court. As a result, the court entered judgment dismissing the case for failure to return the service and informed LaBahn. LaBahn did not tell his client that the case had been dismissed. One year later, the client contacted another lawyer in connection with another matter. He asked that lawyer to look into the matter being handled by LaBahn. That lawyer checked and informed the client that the matter had been dismissed. The client then contacted LaBahn, who only then told the client of the dismissal.

The court found that LaBahn had violated DR 6-101(B) (neglect of a legal matter), but was equally divided as to whether the bar had proved that LaBahn’s failure to tell his client of the dismissal was a misrepresentation by omission under DR 1-102(A)(3). The latter charge was therefore dismissed.

The court noted several aggravating factors, including a prior disciplinary offense (a letter of admonition for neglect), a selfish motive and substantial experience in the practice of law. The suspension is effective Oct. 1, 2003.