Oregon State Bar Bulletin — MAY 2004

Discipline

Note: More than 12,100 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.

BRUCE M. HOWLETT
OSB #89062
Portland
Suspension of six months and one day

On March 23, 2004, the Oregon Supreme Court approved a stipulation for discipline suspending Portland attorney Bruce M. Howlett for six months and one day, all of which will be stayed pending completion of a two-year probation.

The stipulation resolved two separate matters. In the first, Howlett represented an incarcerated criminal defendant. Howlett and the client agreed orally that Howlett would receive a non-refundable flat fee, and Howlett did not deposit the retainer into his trust account. However, the client did not sign a written fee agreement designating the prepaid fee as non-refundable and earned upon receipt until five days after Howlett had cashed the check. Several months later, Howlett received a $560 check from a third party payable to him for the benefit of the client. Howlett anticipated that the client would instruct him to deposit the funds into his canteen account at the jail. Howlett cashed the check and held the money in his desk drawer for approximately six months, while the client issued conflicting instructions regarding what to do with the money. Eventually, the client’s attorney-in-fact requested an accounting of the funds Howlett had received on behalf of the client. Howlett did not provide the requested accounting until four months had passed and the client had complained to the bar. By failing to deposit the client’s retainer and the $560 check into his trust account, Howlett violated DR 9-101(A). By failing to render an accounting of the client’s funds in his possession, Howlett violated DR 9-101(C)(3).

The stipulation also addressed Howlett’s possession and consumption of methamphetamines, which violated DR 1-102(A)(2) (criminal act that reflects adversely on fitness to practice law).

The stipulation noted that Howlett had substantial experience in the practice of law and that he possessed methamphetamines on more than one occasion. In mitigation, the stipulation cited the absence of a dishonest or selfish motive, cooperation with the bar, good faith effort to rectify the consequences of his misconduct and good character or reputation. Furthermore, Howlett completed a substance abuse program in November 2002 and has maintained sobriety since that time.

DONALD R. SLAYTON
OSB #86289
Eugene
Public reprimand

On March 15, 2004, the disciplinary board approved a stipulation for discipline reprimanding Eugene lawyer Donald R. Slayton for violating DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice).

Slayton represented a judgment creditor seeking to collect a judgment against an individual ('Church'). Church failed to appear at a judgment debtor exam. Thereafter, Slayton moved for an order to show cause requiring her to appear in circuit court. Church appeared at the show cause hearing but failed to bring documents required by the earlier debtor exam notice. Nevertheless, Church was placed under oath and Slayton conducted a debtor exam that day.

Approximately six weeks later, Slayton and his staff prepared a number of motions for issuance of bench warrants in several judgment collection cases, including the Church case, where he mistakenly signed and filed a motion and affidavit seeking Church’s arrest for failing to appear at the show cause hearing. The court granted Slayton’s motion and issued a warrant for Church’s arrest. Approximately five months later, Church was arrested on the warrant and transported to jail, where she was held for several hours.

Slayton signed and filed the motion for issuance of bench warrant and affidavit in error. Nevertheless, by filing the motion and affidavit stating that Church had failed to appear at a show cause hearing when, in fact, she had appeared, Slayton engaged in conduct prejudicial to the administration of justice.

The bar and Slayton stipulated that Slayton’s conduct was negligent, as opposed to knowing or intentional. However, Church suffered a serious actual injury as a result of his conduct. The stipulation recited no aggravating factors but noted several factors in mitigation, including remorse and the absence of a dishonest or selfish motive.

GLENN M. FEEST
OSB #80222
Beaverton
30-day suspension

Effective May 1, 2004, the disciplinary board approved a stipulation for discipline suspending Beaverton lawyer, Glenn M. Feest for 30 days for violations of DR 6-101(B) (neglect of a legal matter), DR 9-101(A) (failure to deposit or maintain client funds in trust) and DR 9-101(C)(4) (failure to promptly provide client property).

In April 2000, Feest was provided a retainer from a client to review the possibility of reducing the client’s child support obligation. There was no written fee agreement. Feest did not deposit or maintain the retainer in his client trust account. Although Feest rendered some legal services on behalf of the client, from approximately June 2000 through April 2003, he failed to respond to the client’s attempts to communicate with him and did not otherwise communicate with the client regarding his case.

In late November 2002, the client began requesting that Feest return his retainer. Feest did not respond until after the client filed a complaint with the bar. Thereafter, Feest returned the retainer along with an additional sum for damages.

Feest has a prior discipline record, having received an admonition in 1996 for neglect. However, the stipulation recited several mitigating factors, including absence of a dishonest or selfish motive, a good faith effort to make restitution or to rectify consequences of his misconduct, cooperation with the proceedings and remorse.

MICHAEL T. MULLEN
OSB #93377
Milwaukie
2-year suspension

On April 6, 2004, the Oregon Supreme Court issued an order imposing reciprocal discipline on Michael T. Mullen, an attorney who is licensed in both Oregon and Washington. This order, effective May 6, 2004, suspends Mullen for a period of two (2) years, reinstatement conditioned on payment of restitution. This is the same sanction imposed by the Washington State Bar Association in its order of June 13, 2003.

Mullen was retained to represent a client seeking to modify child visitation and support. Mullen was not diligent in pursuing these matters, and failed to file pleadings with the court. When the client called to inquire about the case, Mullen misrepresented that he had filed the pleadings and had appeared at several hearings.

Mullen also fabricated billing entries to lead his client to believe that he was performing services on the case, when in fact he was neglecting it. After misleading his client for several months, Mullen went to court and obtained a judge’s signature on an ex parte order of child support. He had no legal basis to obtain this order, since the modification petition had never been filed; he did not serve the order on opposing party; and the purpose of obtaining the order was to mislead the client into thinking that the matter was moving forward. Mullen did not file the order, and later obtained a second order of child support ex parte. Again, he did not provide the opposing party with any notice. Intending again to mislead his client, Mullen planned to send a copy of the second order to the client, but not the opposing party; nevertheless, Mullen inadvertently served the opposing party, but not the client. This led to the discovery that the order had been obtained without any service or notice on opposing party.

Mullen admitted that he intended the orders to placate his client, who was complaining that Mullen was not diligent. Mullen did not file the orders after the court signed them.

Mullen’s conduct violated Washington rules equivalent to the following Oregon disciplinary rules: DR 6-101(B) (neglect); DR 2-106(A) (illegal or excessive fee); DR 1-102(A)(3) (conduct involving fraud, deceit, misrepresentation); DR 7-110(B) (improper ex parte communication); and DR 1-102(A)(4) (conduct prejudicial to the administration of justice).

JOHN McILHENNY
OSB #79320
Puyallup, Wash.
Public reprimand

On April 7, 2004, the disciplinary board approved a stipulation for discipline reprimanding Puyallup, Wash., lawyer John McIlhenny for violating DR 9-101(A) (failure to deposit or maintain client funds in trust).

McIlhenny represented an out-of-state client in a complex dissolution case who incurred substantial attorney fees for which McIlhenny placed a lien against the resulting settlement property division judgment. In accordance with the notice of lien, opposing counsel provided McIlhenny with two settlement checks, one representing the amount of the lien, made payable to McIlhenny, and one for the remainder of the settlement, made payable to McIlhenny's client.

McIlhenny was aware that the client disputed the amount of his attorney fees. However, he mistakenly believed that the check made payable to him was not client property. Accordingly, he did not place the funds in trust or maintain them in trust pending a final resolution with his client on her objections to his fees, as required by DR 9-101(A).


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