Oregon State Bar Bulletin — NOVEMBER 2004

Discipline

Note: More than 12,500 persons are qualified 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.

BOB PANGBURN
OSB #89402
Hailey, Idaho
Form B resignation

Effective Sept. 8, 2004, the Oregon Supreme Court accepted the Form B resignation of Hailey, Idaho lawyer Bob Pangburn. At the time of the resignation, formal disciplinary proceedings were pending against Pangburn for multiple violations of the disciplinary rules involving multiple client matters, including: DR 1-102(A)(3) (dishonesty, deceit or misrepresentation, including conversion of client funds); DR 1-103(C) (failure to cooperate with disciplinary authorities); DR 2-106(A) (illegal or excessive fee); DR 2-110(A)(2),(3) (improper withdrawal); DR 6-101(B) (neglect of legal matters); DR 7-101(A)(2) (intentional failure to carry out contract of employment); DR 9-101(A) (failure to deposit and maintain client funds in trust); DR 9-101(C)(3) (failure to prepare and maintain adequate records and failure to account for client funds) and DR 9-101(C)(4) (failure to promptly deliver client funds and property). In addition to the formal complaints, the bar had filed a petition asking the court to suspend Pangburn from practicing law during the pendency of disciplinary proceedings pursuant to BR 3.1.

Pangburn was admitted to practice in Oregon in 1989. He had a prior record of discipline. In 2002, Pangburn was publicly reprimanded for violation of Idaho Rules of Professional Conduct 1.3 (diligence), IRC 1.4 (communication), IRC 1.15(b), (property of third person) and IRC 8.4(d) (conduct prejudicial to the administration of justice).

KENNETH W. MCWADE
OSB #70089
Kailua, Hawaii
Two-year suspension

Effective Sept. 9, 2004, the Oregon Supreme Court suspended Kenneth W. McWade of Hawaii for two years, pursuant to BR 3.5 (reciprocal discipline). The U. S. Tax Court had previously imposed the same sanction.

McWade represented the Internal Revenue Service in a number of cases brought against a large number of individual taxpayers. Among other things, McWade: 1) engaged in a scheme to mislead the court and manipulate some of the cases in order to enhance the likelihood that his client would prevail in all of the cases, and then, in subsequent hearings, attempted to conceal from the court what he had done; 2) entered into agreements with some of the taxpayers, failed to disclose those agreements to the court and the other taxpayers, and intentionally mislead the court about the status of those cases and 3) allowed a witness to offer misleading testimony to the court.

For engaging in the above referenced misconduct, McWade was found to have violated rules 3.1, 8.4(a), 8.4(c) and 8.4(d) of the ABA Model Rules of Professional Conduct, which are applicable in the U.S. Tax Court.

GARRY L. BRECKON
OSB #97221
Hillsboro
Public reprimand

On Sept. 13, 2004, the disciplinary board approved a stipulation for discipline reprimanding Hillsboro lawyer Garry L. Breckon for violation of DR 6-101(A) (lack of competence).

Breckon represented his client in a dissolution of marriage proceeding involving child custody and the disposition of assets. Although Breckon had performed legal work in dissolution matters on prior occasions, Breckon had no previous experience with a dissolution in which significant real property issues existed. The chief issue remaining in the dissolution was the disposition of the marital home.

Breckon arrived at trial without the knowledge, skill or preparation reasonably necessary to thoroughly represent the interests of his client in the distribution of assets. As a result of his inexperience, Breckon believed that opposing counsel would arrange an appraisal of the value of the marital home on behalf of both parties. Breckon failed to exercise the necessary diligence to collect documents in a timely fashion and to pre-mark his exhibits and show them to opposing counsel. Breckon failed to offer exhibits into evidence until prompted by the court and neglected to elicit evidence regarding the value of the home or the costs of sale which might offset that value. As a result, Breckonís client suffered actual and potential injury.

The stipulation noted that Breckon had no record of prior discipline; made a full and free disclosure to disciplinary counselís office and expressed remorse for his conduct.

EILEEN DRAKE
OSB #84040
Portland
Public reprimand

Effective Sept. 22, 2004, the disciplinary board approved a stipulation reprimanding Portland lawyer Eileen Drake for violating DR 5-105(C) (former client conflict of interest) and DR 5-105(E) (current client conflict of interest).

For a number of years, another lawyer in Drakeís firm represented two individuals who were husband and wife, and their jointly owned business, in some tax matters. At a point in 1999, the husband was no longer an officer or director in the business, but continued to be an employee.

Thereafter, without obtaining consent after full disclosure from husband, wife and the business, Drake provided advice to the business regarding the husbandís continued employment relationship at a time when the other lawyer in Drakeís firm continued to represent the husband in the tax matters. With regard to that employment matter, the interests of the husband and the business were adverse. At the time, Drake mistakenly believed that the law firmís representation of husband had ended some years earlier.

After Drake provided advice to the business she conducted a conflict check which revealed that husbandís tax matter was still shown as an open matter. Sometime afterwards, but before Drake performed any additional work on the employment matter, she made further inquiry about the husbandís status as a current client, and was advised by another lawyer in the firm that husband was no longer a firm client, and that there was no conflict. Drake negligently failed to conduct a more diligent effort to determine whether a former client conflict of interest existed.

After the husband ceased being a firm client altogether, Drake continued to represent the business in the employment matter. To the extent the employment matter was the same or significantly related to the matters in which the other firm lawyer had previously represented the husband, Drake failed to obtain consent after full disclosure from husband, wife, and the business.

DAVID E. FENNELL
OSB #84459
Washington state
One year suspension, reciprocal discipline

By order dated Sept. 28, 2004, the Oregon Supreme Court suspended David E. Fennell of Washington for one year pursuant to BR 3.5 (reciprocal discipline). The Washington Supreme Court had suspended Fennell for one year in May 2004.

In May 2004, the Washington court had approved a recommendation by the Washington State Bar Association Disciplinary Board (WSBA), which had found that Fennell had violated Washington Rules of Professional Conduct (RPCs) that prohibit attorneys from transacting business with a client without full disclosure (RPC 1.8(a)); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (RPC 8.4(c)); and failing to advise a client of the factors involved in determining his charges for legal services (RPC 1.5(b)).

The violations arose from Fennellís practice of marking up invoices received from outside vendors who provided notice-posting services in non-judicial foreclosures initiated by Fennellís law firm. After marking up these invoices by approximately 100 percent, Fennell billed his firmís clients (or, in the case of borrowers who reinstated their trust deeds, the borrowers) for the larger amounts. Fennell accomplished this mark up through what the WSBA concluded was a dummy shell corporation, which Fennell apparently used solely to contract with existing outside vendors and to receive their incoming invoices for set fees for services. The shell corporation did not add any value to the services provided by the outside vendors that could justify marking up the posting fees before passing the inflated costs (in the form of new invoices from the shell corporation) on to Fennellís clients or their borrowers.

PAULA J. LAWRENCE
OSB #89285
McMinnville
90-day suspension

On Sept. 30, 2004, the Oregon Supreme Court filed an opinion suspending McMinnville lawyer Paula Lawrence for 90 days for violation of DR 1-102(A)(3) (dishonesty or misrepresentation); DR 1-103(C) (failure to respond fully and truthfully to the bar); and DR 7-104(A)(2) (giving advice to an unrepresented person whose interests are adverse to the interests of a client). The suspension is effective on Nov. 29, 2004.

Lawrenceís law firm was appointed to represent a client who was charged with assaulting his wife. The firm assigned an associate to handle the matter. Lawrence was interested in asserting a constitutional argument that victims of domestic assault had the right to require a trial court to dismiss the criminal charges against their assailants. The associate recognized that the circumstances of his case and the apparent wishes of the victim fit the paradigm that Lawrence had identified and brought the case to her attention.

Thereafter, Lawrence, through an associate, informed the victim of the constitutional argument and assisted in the drafting of an affidavit for the victimís signature in which the victim expressed her desire to assert her rights to have the criminal charges dismissed. The affidavit and a letter that was also prepared by Lawrenceís firm were filed with the court, without disclosing the firmís role in the drafting, and the matter was scheduled for a hearing. Thereafter, Lawrence filed an amicus brief to support the dismissal. The day of the hearing, Lawrence met with the victim, told her what to expect and coached her concerning what to say at the hearing and how to say it.

Lawrence represented the defendant during the hearing on the motion to dismiss. The judge became concerned that Lawrence had provided advice to the victim when the victimís interests were in conflict with the interests of the defendant. The judge asked Lawrence whether she had advised the victim. Lawrence did not respond directly and failed to disclose the communications she and the associate had with the victim or the extent of the firmís involvement in preparing the victimís affidavit. The judge denied the motion to dismiss. A few days later, Lawrence sent a letter to the judge denying that there was any conflict between the interests of the defendant and the victim, but again failing to disclose any factual detail about her contact with the victim.

The court found that Lawrence gave advice to an unrepresented person whose interests were in conflict with the interests of her client, in violation of DR 7-104(A)(2). The court also found that Lawrence knowingly concealed the details about her law firmís contact with, and efforts on behalf of, the victim when she had a duty to respond completely and candidly to the judgeís questions under DR 1-102(A)(3). Finally, the court found that Lawrence misrepresented her involvement with the victim in response to a bar complaint and failed to disclose fully all facts pertinent to the ethics inquiry, in violation of DR 1-102(A)(3) and DR 1-103(C).

Lawrence was admitted to practice in 1989. She had no prior record of discipline.

ALAN L. GALLAGHER
OSB #78211
Canby
Form B resignation

On Oct. 14, 2004, the Oregon Supreme Court accepted the Form B resignation of Canby lawyer Alan L. Gallagher. At the time of the resignation, Gallagher was the subject of a formal disciplinary proceeding in which allegations of neglect (DR 6-101(B)), trust account violations (DR 1-102(A)(3), DR 9-101(A), DR 9-101(C)(3)), conflicts of interest (DR 5-105(C), DR 5-105(E)), practicing law while suspended (DR 3-101(B)) and non-cooperation (DR 1-103(C)), among others, were made.

Gallagher had been suspended on an interim basis since November 2003. The resignation became effective immediately.


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