Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2005

Discipline

Note: More than 12,440 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.

DONNA M. MATTHEWS
OSB #97327
Eugene
1-year suspension

On June 1, 2005, the supreme court approved a stipulation for discipline suspending Eugene lawyer Donna M. Matthews for one year, effective May 16, 2005, for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1 102(A)(4) (conduct prejudicial to the administration of justice), DR 5-101(A) (lawyer conflict of interest), DR 5-110(A) (engaging in a sexual relationship with a client), DR 7-102(A)(2) (knowingly advance an unwarranted claim) and DR 7-102(A)(5) (knowingly make a false statement of law or fact).

In one matter Matthews represented the father in a proceeding to modify a dissolution of marriage judgment. The court awarded custody of the parties' eldest child to the mother and custody of the four younger children to the father. In a later hearing the court continued that prior custody order and modified the parenting plan. The court instructed Matthews to prepare an order consistent the court's ruling. Before Matthews prepared the order, the father died. Thereafter, the mother picked up the four younger children and took them to her home in Washington.

In response to the mother's actions, Matthews presented to the court a motion for a writ of assistance. In the motion, Matthews represented that the father had been awarded sole legal custody until a court specifically ordered otherwise, that the mother was holding the four younger children in violation of the court order awarding custody to the father, and that the father was entitled to the court's assistance in recovering the four younger children from the mother. (In supporting documents, Matthews falsely asserted that a prior judge had previously found the eldest child, who resided with the mother, to be a danger to the four younger children and that the mother was mentally and physically unwell.) Matthews failed to disclose to the court that father had died or that the stepmother, upon whose behalf she was appearing, was not a party to the modification proceeding and had neither legal custody nor standing to pursue the writ. The court granted Matthews' motion and issued the writ of assistance. With the assistance of local law enforcement personnel in Washington, the four younger children were taken from the mother and given to the stepmother.

After stepmother obtained physical custody of the four younger children, Matthews filed a petition for custody on behalf of stepmother. She also presented to a judge not familiar with the case a motion for a temporary order of restraint. Matthews failed to disclose to the judge the existence of the modification proceeding, the circumstances surrounding the father's death, the subsequent issuance and execution of the order of assistance, or the return of the four younger children to the stepmother. The court issued an order of restraint which placed numerous limitations on the mother's access to her children.

In a second matter, Matthews had a sexual relationship with a client who she was representing in a dissolution of marriage proceeding.

STEPHEN C.P. CARROLL
OSB #94057
Prescott, Ariz.
Form B resignation

Effective June 21, 2005, the Oregon Supreme Court accepted the Form B resignation of former Eugene lawyer Stephen C. P. Carroll. At the time of the resignation, a formal disciplinary proceeding was pending against Carroll for violations of the disciplinary rules in multiple matters, including: DR 1-102(A)(2) (criminal conduct reflecting on a lawyer’s honesty or fitness to practice law); DR 1-102(A)(3) (dishonesty, fraud, deceit or misrepresentation); DR 2-106(A) (illegal or excessive fee); DR 9-101(A) (failure to deposit and maintain client funds in a lawyer trust account); DR 9-101(C)(3) (failure to account for client funds) and DR 9-101(C)(4) (failure to promptly deliver client property).

Carroll was admitted to practice in Oregon 1994. He had a prior record of discipline. Carroll’s clients’ files and records have been placed in the custody of Wilson C. Mulheim.

PATRICK R. FOLEY
OSB #80143
Harbor
Public reprimand

On June 24, 2005, the disciplinary board approved a stipulation for discipline reprimanding Patrick R. Foley for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 7-106(C)(7) (violating an established rule of procedure).

Foley filed a petition for dissolution of a client’s marriage. The client’s wife was represented by counsel. Thereafter, Foley prepared and caused a subpoena for deposition and the production of the wife’s financial records to be served on a financial institution. The subpoena commanded the financial institution to appear and to produce the records at Foley’s office. Foley failed to serve or otherwise provide the client’s wife and her counsel with a copy of the subpoena and notice of the deposition as required by Oregon Rules of Civil Procedure. The financial institution delivered documents to Foley in response to the subpoena.

Opposing counsel then notified Foley that he had been advised by the financial institution that Foley had subpoenaed his client’s financial records. Opposing counsel also notified Foley that the rules of procedure required Foley to provide written notice of the deposition and a copy of any subpoena to other parties. Opposing counsel informed Foley that he had not been provided with notice of the deposition or a copy of the subpoena. He also asked Foley to provide him with a copy of the subpoena and any documents delivered to Foley in response to the subpoena.

Thereafter, Foley prepared and caused additional subpoenas for deposition and the production of financial records of Foley’s client, the client’s wife and other persons to be served on the financial institution. The subpoenas commanded the financial institution to appear for deposition and produce documents at Foley’s office. Again Foley failed to serve or otherwise provide opposing counsel and other persons whose financial records were subpoenaed with a copy of the subpoenas and notice of the depositions. The financial institution delivered documents to Foley in response to the subpoenas.

Foley was admitted to practice in Oregon 1980. He had no prior record of formal discipline.

NICHOLAS I. GOYAK
OSB #66050
McMinnville
6-month suspension

Effective July 7, 2005, a trial panel of the disciplinary board suspended McMinnville lawyer Nicholas I. Goyak for six months for violating DR 1-102(A)(2) (criminal conduct reflecting adversely on honesty, trustworthiness or fitness to practice law); DR 1-103(C) (failure to cooperate with the bar); DR 9-101(A) (trust account violations) and DR 9-101(C)(3) (failure to maintain complete trust account records).

Goyak wrote four checks to the City of Portland to pay his Portland business license fees. The four checks were returned for non-sufficient funds by the banks upon which they were written. At the time Goyak wrote these checks he was aware that the accounts from which they were written were overdrawn or had insufficient balances to cover the checks. The trial panel found that Goyak knew that his checks would not be covered by the bank when he wrote them and failed to make good on the checks for a substantial period of time after the city had threatened collection litigation and had made a complaint to the bar.

The panel also found that Goyak deposited personal funds into his lawyer trust account, used the account as a personal bank account and failed to keep or maintain adequate records of his trust account transactions.

Finally, the trial panel found that Goyak failed to respond to the bar’s initial inquiry about his conduct and to five subsequent letters, resulting in the referral of his case to a local professional responsibility committee for investigation. When the matter was returned to disciplinary counsel’s office, Goyak was requested to produce his bank records and did not do so, with the result that the bar was required to subpoena these records.

In determining the appropriate sanction, the trial panel considered Goyak’s substantial experience in the practice of law, that he committed multiple offenses, engaged in a pattern of misconduct, and that he acted with a dishonest or selfish motive. In mitigation, the panel considered that Goyak had no prior disciplinary record and that he enjoys a good reputation in the legal community.

R. KEVIN HENDRICK
OSB #91056
Salem
30-day suspension

On June 13, 2005, the disciplinary board approved a stipulation for discipline suspending R. Kevin Hendrick from the practice of law for 30 days. The suspension was effective on July 23, 2005.

In one matter, Hendrick admitted that he violated DR 5-103(B). Hendrick advanced financial assistance to a client by agreeing to loan a sum of money for the benefit of the client to satisfy some of the client’s obligations to her landlord.

In another matter, Hendrick admitted that he engaged in conduct prejudicial to the administration of justice and failed to provide competent representation to his clients in violation of DR 1-102(A)(4) and DR 6-101(A). Hendrick represented clients concerning certain civil claims against a state licensure board. He failed to promptly cause the summons and complaint to be served, failed to file responses to the state’s motions and failed to file an amended complaint within the time ordered by the court.

Thereafter, the clients filed a petition for relief in the bankruptcy court. Hendrick should have known that the clients’ claims became the property of the bankruptcy estate and subject to the control of the bankruptcy trustee and the bankruptcy court, and that the state and its lawyers were stayed from taking or continuing action against Hendricks’ clients without an order granting relief from stay by the bankruptcy court. Without the consent of or notice to the bankruptcy trustee and the bankruptcy court, Hendrick filed an amended complaint in state court, and for a period of about six months did not disclose to the state court, the state or its lawyers that his clients had filed the bankruptcy petition. The state and its lawyers also took action against Hendrick’s clients, which subjected them to possible sanctions for violation of the automatic stay.

Hendrick also admitted that he violated DR 5-101(A). For a number of years, Hendrick provided legal advice to and performed legal services for a mortgage broker and its owner and president. The broker proposed to private investors that they fund loans to Hendrick, which they did. Hendrick from time to time performed legal services for some of the private investors who provided funds for the loans he obtained, but not concerning the specific loan transactions between the Hendrick and the investors. Hendrick’s representation of the broker, its president and some of the private investors resulted in a self-interest conflict. Mr. Hendrick failed to provide his clients with a sufficient disclosure or obtain their consent to his representation.

Hendrick was admitted to practice in Oregon 1991. He had no prior record of formal discipline.

TERRENCE KAY
OSB #81437
Salem
Reprimand

On June 24, 2005, the disciplinary board approved a stipulation for discipline reprimanding Salem lawyer Terrence Kay for violating DR 3-101(B) (practicing law in violation of state regulation) and ORS 9.160 (practice of law restricted to active members).

Kay was suspended from practice for 30 days in 2004, for disciplinary reasons. In re Kay, 18 DB Rptr 138 (2004). After the 30 day suspension ran, and after Kay paid the bar the costs associated with that disciplinary proceeding, Kay resumed practicing law without filing a reinstatement compliance affidavit or paying a reinstatement fee as required by Bar Rule 8.3. He misread the notice from the bar concerning requirements necessary to become reinstated, did not read the bar rule or appreciate its application to his situation, and mistakenly believed that nothing further needed to be done before he resumed practice. Kay also relied upon the fact that he had made inquiry of his lawyer in the disciplinary proceeding as to whether further steps needed to be taken for reinstatement, and his lawyer did not respond to that inquiry.

Kay practiced law for a little more than two weeks when he was not authorized to do so. When he learned of the problem, he filed the necessary compliance affidavit, paid the appropriate fee and was reinstated.

LIZA LANGFORD
OSB #88250
Portland
Public reprimand

On June 24, 2005, the disciplinary board approved a stipulation for discipline reprimanding attorney Liza Langford for violation of DR 4-101(B)(1) (disclosing client confidences and secrets) and DR 4-101(B)(2) (using client’s confidences and secrets to the disadvantage of the client).

Langford represented a client concerning a child custody matter. The client notified Langford that she did not wish her to continue and terminated the representation. Thereafter, Langford submitted a motion and supporting affidavit to the court to obtain an order allowing her to withdraw from the representation. In the affidavit, Langford disclosed and used client confidences and secrets to the disadvantage of her client, including communications by the client to Langford, Langford’s advice given to her client, and Langford’s personal judgments about her client’s honesty and the legal matter that was the subject of the representation. Langford admitted that her conduct violated the disciplinary rules.

Langford was admitted to practice in 1988. She had no prior record of formal discipline.

STEPHANIE J. TUTTLE
OSB #93446
Salem
30-day suspension

On May 27, 2005, a disciplinary board trial panel filed an opinion finding that Stephanie J. Tuttle, a deputy district attorney for Marion County, knowingly failed to disclose or timely disclose exculpatory evidence in violation of DR 7-103(B) of the Code of Professional Responsibility. Pursuant to a stipulation of the parties, the suspension was effective July 1, 2005.

Tuttle represented the state in criminal prosecutions against two separate defendants. The cases were related to the extent that the alleged victim was the same in each case. In the first case, the defendant appeared at a plea hearing and made statements to the court and Tuttle about conversations the defendant had with the victim in which the victim recanted her allegations about the defendant in the second case and other related matters. About two weeks later, the case against the second defendant went to trial. Tuttle failed to disclose to defense counsel the statements made by the defendant in the first case that concerned or were related to the second defendant’s case.

Tuttle was admitted to practice in Oregon in 1993. She had no prior record of discipline.

SALLY LEISURE
OSB #83059
Portland
18-month suspension

In an opinion filed May 12, 2005, the Oregon Supreme Court suspended Portland lawyer Sally Leisure for 18 months, effective July 11, 2005, for violation of DR 1-102(A)(2) (criminal conduct reflecting adversely on honesty and trustworthiness) and DR 1-102(A)(3) (conduct involving misrepresentation). The charges arose out of Leisure’s personal financial practices in 2001 and her conduct in handling a fee she owed to lawyers who acted as co-counsel in a civil matter.

In August 2001, Leisure issued a check for $1400 to a local merchant. This check was not honored by her bank, because there were insufficient funds in her account to cover it. Leisure did not make this check good within 10 days of receiving notice that it had not been honored. Leisure then made several promises to the payee that the check would be covered by specified dates, but did not cover the check for almost two months after it was issued.

Leisure also wrote 342 checks on her personal bank account in the year 2001. Ninety-eight of these checks were dishonored and returned unpaid by her bank. Leisure also incurred either "overdraft item" or "returned item" charges on more than 200 checks. In October 2001, 26 checks were presented to Leisure’s account for payment, every one of which was dishonored because the account had a negative balance. The court found that Leisure wrote these 26 checks knowing that her bank would not cover them.

In another matter, Leisure entered into a co-counsel relationship with a law firm, which acted as trial counsel for Leisure’s client in civil litigation. When the client refused to pay the lawyers’ fees, the law firm assigned its interest in the fees to Leisure for collection. She agreed to pay co-counsel 50 percent of any fees collected. Leisure obtained a judgment against the client, and between January and August 2002, collected approximately $21,000 from the client. Leisure did not advise her former co-counsel of the collected money and spent it. Some of the money Leisure received belonged to the law firm for whom her former co-counsel worked. In August 2002, Leisure collected the balance of the judgment against the client and disbursed approximately $123,000 to herself. Again, Leisure did not inform her former co-counsel she had received this money. When confronted by co-counsel, Leisure falsely represented that she could not pay co-counsel his share because the bank had placed a hold on the trust account check she had received from collection. Meanwhile, she was spending the money and did not have enough left to pay co-counsel’s share. Nonetheless, Leisure wrote a check for the full amount of her obligation. This check was not honored by the bank. She then paid part of the fee she owed to her former co-counsel and wrote three checks to cover the remaining $20,000. None of these checks were honored by the bank, and Leisure did not cover them within 10 days of dishonor.

The court found that Leisure’s financial practices constituted criminal conduct in violation of ORS 165.065 that reflected adversely on her honesty and trustworthiness. The court also found that in addition to the misrepresentations Leisure made to her former co-counsel and to the payee of the $1400 check, she also made misrepresentations to each payee of the 26 NSF checks she wrote on her bank account in October 2001.


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