Oregon State Bar Bulletin — DECEMBER 2005

Discipline

Note: More than 12,800 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.

WM. TIMOTHY LYONS
OSB #78292
Oregon City
Public reprimand

On Sept. 21, 2005, the disciplinary board approved a stipulation for discipline reprimanding attorney Wm. Timothy Lyons for violations of DR 6-101(A) (failure to provide competent representation) and DR 9-101(C)(4) (failure to promptly deliver a client file upon request).

Lyons was retained to file a petition for post-conviction relief in state court. His client’s conviction and sentence had been affirmed on direct appeal. Under ORS 138.510, petitions for post-conviction relief must be filed within two years after the date the direct appeal is final. However, pursuant to the federal Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), state prisoners must file writs of habeas corpus within one year from the date a judgment becomes final on direct appeal. Under the AEDPA, the time during which a petition for state post-conviction relief is pending is not counted toward the one-year AEDPA statute of limitations.

Lyons was aware of the two-year statute of limitations under ORS 138.510. However, he was not aware that the one-year AEDPA statute was also running during this two-year period. Lyons failed to perform the legal research necessary to determine that his client’s rights to pursue relief in federal court would be extinguished if he did not file the state petition within one year after the conviction became final (and thus toll the AEDPA’s statute of limitations). Lyons timely filed his client’s petition for post-conviction relief in state court under Oregon law, but the AEDPA statute of limitations had already run and was therefore not tolled while the post-conviction relief petition was pending in state court.

The post-conviction relief petition was denied at trial. The client retained Lyons to appeal that denial. The Oregon Court of Appeals affirmed the dismissal without opinion and the state supreme court denied review. The client thereafter filed a writ of habeas corpus in federal court. The client was represented by the federal public defender’s office, which requested that Lyons provide his file and records of representation from the client’s post-conviction relief case. (The federal public defender sought relief from the AEDPA statute of limitations by arguing that the one-year period was equitably tolled due to Lyons’s failure to recognize the operation of the AEDPA.) Lyons could not provide the file because he had lost it and the other records of his representation of the client during a relocation of his office. However, Lyons cooperated with the federal public defender by providing an affidavit, which was eventually filed with the federal court, setting out the circumstances of the loss of the file and his representation of the client.

The federal magistrate dismissed the client’s writ of habeas corpus as untimely, citing the AEDPA statute.

Lyons was admitted to practice in Oregon in 1978. He has no prior record of discipline.

DAMIAN M. IDIART
OSB #01061
Medford
Public reprimand

On Oct. 7, 2005, the disciplinary board approved a stipulation for discipline reprimanding attorney Damian M. Idiart for violations of: Oregon RPC 5.3(b) (failing to ensure that non-lawyer employees’ conduct is compatible with rules); RPC 7.3(b)(1) (soliciting professional employment) and RPC 8.4(a)(1) (violating an ethics rule through the acts of another).

Idiart established a direct mail solicitation procedure, the day-to-day operation of which he delegated to a non-lawyer employee. The employee reviewed online news reports about automobile accidents in which no dispute of liability was asserted and that resulted in injuries for which recovery could be sought. The employee then sent the injured party a form letter to solicit professional employment. Idiart did not instruct the employee that a lawyer is prohibited from soliciting professional employment through direct written communication when the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the client could not exercise reasonable judgment in employing a lawyer.

On May 30, 2005, a 23-year old Portland man was killed when he was hit by a car while riding his bicycle. The death was reported in an online news article the following day, May 31. That news report quoted the victim’s grandmother stating that the family was "reeling" from the death. Idiart’s employee read the article that day and sent a form solicitation letter from Idiart addressed to the victim’s family. The victim’s father received the letter the next day, two days after his son was killed.

Idiart acknowledged that, by acting through his employee, he sent a written communication soliciting professional employment at a time when he reasonably should have known that the family’s emotional state was such that they could not exercise reasonable judgment about employing a lawyer to pursue a claim arising from the death. He further acknowledged that he failed to instruct his employee of his ethical obligations with respect to communicating with prospective clients to solicit professional employment.

The stipulation for discipline recites that Idiart acted negligently, rather than knowingly or intentionally. Furthermore, Idiart responded promptly and completely to all inquiries from disciplinary counsel, apologized to the victim’s father and implemented a reasonable waiting period before contacting prospective clients in cases involving serious injury or death.

Idiart was admitted to the bar on April 20, 2001 and has no prior record of discipline.

STEVEN D. MARSH
OSB # 01074
Lake Oswego
9-month suspension

On Sept. 27, 2005, the Oregon Supreme Court approved a stipulation for discipline suspending Steven D. Marsh for nine months for violations of: DR 1-102(A)(3) (misrepresentation); DR 2-106(A) (excessive fee); DR 2-110(A) (improper withdrawal); DR 2-110(B)(3) (failure to withdraw); DR 6-101(A) (failure to provide competent representation); DR 6-101(B) (neglect); DR 9-101(C)(3) (failure to account for client funds) and DR 9-101(C)(4) (failure to deliver client property). The suspension was effective Sept. 30, 2005.

Marsh represented a client to collect a debt. The client delivered his documents and also paid a fee for the legal services to be performed. Marsh filed the civil complaint. One defendant was personally served. A second defendant was served by substitute service. Marsh failed to complete the service by mailing a copy of the summons and complaint to the second defendant. Thereafter, Marsh took no substantive action for several months. After the court gave notice of intent to dismiss the case, he filed a motion for order of default. The court denied the motion and dismissed the case. About six months later, Marsh filed a motion to reinstate the case. The court denied the motion.

During the representation, Marsh mistakenly represented to the client that he had obtained a judgment against the defendants when he had not. When Marsh learned that he had not obtained a judgment and that the case had been dismissed, he failed to timely tell his client. Marsh also failed to maintain complete records concerning the funds the client paid, and he failed to render an appropriate accounting to the client for those funds. When the client asked Marsh to return file documents, Marsh failed to promptly deliver the materials to the client.

In another matter, a landlord retained Marsh to pursue an FED claim against tenants who had failed to pay rent. Marsh’s client prevailed on the FED. When Marsh filed a petition for the award of attorney fees and costs with the court, he failed to detail his time and activities.

To explain the lack of a detailed account of his time, Marsh represented to the court that the fee he charged the client was a flat fee. This representation was not completely true. Only part of the fee was a flat fee. Other fees paid by the client were for services to be provided and billed at an hourly rate. Marsh did not prepare time records. The court awarded attorney’s fees to Marsh’s client for less than half of the amount she paid because Marsh could not substantiate his time and services. Marsh also failed to prepare complete records of the receipt, disbursement and application of the funds he received from his client.

In a third matter, a client retained Marsh to pursue an appeal of an administrative child support order. Pursuant to a written fee agreement, the client paid a portion of a flat fee to Marsh, the balance to be paid prior to the hearing. Marsh filed a petition for de novo review of the order, but did not complete the work contemplated by the fee. The client terminated the representation because he felt Marsh was not adequately communicating with him. Thereafter, Marsh failed to promptly file a notice or motion with the court for permission to withdraw and failed to return the unearned portion of the fee the client had paid. The client also asked Marsh for his file. Marsh failed to promptly deliver all papers and property the client was entitled to receive.

At times during Marsh’s representation of the clients, he suffered from a serious physical condition that required ongoing medical treatment. He failed to withdraw from the representation of clients when his physical condition rendered it unreasonably difficult for him to carry out the employment effectively.

Marsh was admitted to practice in 2001. He had no prior record of discipline.


BRANT M. MEDONICH
OSB #85284
Bend
Form B resignation

Effective Nov. 1, 2005, the Oregon Supreme Court accepted the Form B resignation of Brant M. Medonich. At the time of the resignation, a formal disciplinary proceeding was pending against him alleging violation of: DR 1-102(A)(3) (dishonesty, conversion of client funds); DR 2-106(A) (illegal or excessive fee); DR 9-101(C)(4) (failure to promptly deliver client property) and RPC 8.1(a)(2) (failure to respond to lawful demands of disciplinary authority).

Medonich was admitted to practice in Oregon in 1985. He had a prior record of discipline.


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