Oregon State Bar Bulletin — FEBRUARY/MARCH 2005

Discipline

Note: More than 12,550 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.

MAGAR E. MAGAR
OSB #76232
Portland
1-year suspension


On Nov. 4, 2004, the Oregon Supreme Court issued an opinion finding that Magar E. Magar violated: ORS 9.160 (holding himself out as an attorney when he was not authorized to do so); DR 1-102(A)(3) (dishonesty, deceit or misrepresentation); DR 2-101(A)(1) (making a false or misleading communication about himself); DR 7-102(A)(5) (making a false statement of fact) and DR 7-106(A)(7) (intentionally violating an established rule of procedure).
Magar intentionally did not appear at the disciplinary hearing. As a result, the trial panel deemed the allegations of the bar’s complaint to be true. The court affirmed and suspended Magar for one (1) year, effective Jan. 3, 2005.
After Magar transferred to inactive membership status in 2000, he prepared and filed various pleadings in cases in which he was a party and delivered correspondence to opposing counsel and the court in which he represented that he was an “attorney at law.” He also issued and caused subpoenas to be served for a witness to appear and produce documents at a deposition, an act reserved for active members of the bar. Magar did not advise or disclose to the court, opposing counsel or the witness that he was an inactive member.
In the same case, Magar also falsely represented the qualifications of a handyman whom he employed in an attempt to avoid county building rules that required him to obtain permits and that plumbing and electrical work be done by licensed professionals.
Magar also falsely represented that he was a notary public and administered the oath to a witness during a deposition in which he was a party. Magar did not disclose to the witness’s counsel or to opposing counsel that he was not a notary public or that his application submitted years earlier had been rejected.
Magar was admitted to practice in Oregon in 1976. He had a prior record of discipline. At the time of Magar’s suspension, he was an inactive member of the bar. In the event Magar decides to apply for reinstatement to active membership status, the requirements of BR 8.1(a)(iv) will apply.


SONA JEAN JOINER
OSB #84013
Portland
Public reprimand


On Dec. 22, 2004, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Sona Jean Joiner for violation of DR 9-101(A) (duty to maintain unearned client funds in trust).
Joiner entered into a modified contingent fee agreement with her client. Under the terms of the agreement, the client was required to provide $2,000 upon hiring Joiner, and Joiner was required to represent the client in the matter to its conclusion unless terminated. The agreement also provided that Joiner was entitled to receive as a contingent fee a one-third share of any recovery eventually made on the client’s behalf and that the client’s $2,000 payment would be credited toward Joiner’s contingent fee. The $2,000 payment was characterized in the agreement as a retainer and the agreement provided that the retainer was not refundable in the event that the attorney-client relationship was terminated. Joiner, negligently believing that the retainer constituted a non-refundable flat fee earned upon receipt, deposited the retainer directly into her general business account before earning the entire amount of the retainer.
In arriving at a sanction, the stipulation also noted that Joiner’s client suffered little or no injury since Joiner was eventually entitled to collect the entire amount of the retainer. The stipulation also noted that, although Joiner was previously subjected to bar discipline, the prior misconduct was remote in time and dissimilar to the present misconduct.


KEITH A. MILLER
OSB #92097
Sweet Home
Form B resignation


Effective Jan. 1, 2005, the Oregon Supreme Court has accepted the Form B resignation of Sweet Home lawyer Keith A. Miller. At the time of resignation, the bar was investigating Miller’s conduct in three matters. In one matter it was alleged that Miller charged a clearly illegal or excessive fee in his representation of a client in a claim for veterans’ benefits. In another matter it was alleged that Miller neglected a client’s Social Security matter. In the third matter it was alleged that Miller failed to comply with a court order.
Miller was admitted to practice in 1992. Miller’s resignation recites that client files and records have been or will be placed in custody of John R. Wittwer.


BRIAN J. DOBIE
OSB #90249
Lake Oswego
Public reprimand


On Jan. 3, 2005, the disciplinary board approved a stipulation for discipline publicly reprimanding Lake Oswego attorney Brian J. Dobie for violations of DR 9-101(C)(3) (duty to maintain complete financial records and render appropriate accounts of client funds) and DR 9-101(C)(4) (duty to return client property promptly upon receipt).
Dobie represented a client between 1992 and late 2000. During the course of the representation, he received money from the client in connection with a trust he had established on her behalf, and he made expenditures of the money in accordance with the client’s instructions and the stated purposes of the trust. When the representation terminated, the client hired new counsel who asked Dobie for a full accounting and also asked him to forward accounting records and other parts of the client’s files to him.
Dobie had failed to maintain and preserve for a period of at least five years after the representation concluded adequate financial records concerning the client’s matter. He was thus unable to provide successor counsel with an accounting or with the client’s complete financial records.
Dobie was admitted to practice in 1990. He was previously disciplined in 1998. See In re Dobie, 12 DB Rptr. 19 (1998) (30-day suspension stayed pending completion of probation.)


ROBERT G. KLAHN
OSB #80068
Pendleton
Public reprimand


Effective Jan. 5, 2005, the disciplinary board approved a stipulation for discipline reprimanding Pendleton attorney Robert G. Klahn for violating DR 9-101(A) (deposit and maintain client funds in trust) and DR 9-101(C)(3) (maintain accurate records of client funds).
In May 2004, the bar received a notice of insufficient funds involving a trust account maintained by Klahn. Upon being advised of the notice of overdraft, Klahn conducted a review of his trust account records and identified several errors involving the handling and recordkeeping of client funds. The errors included: duplicate deposit entries in the firm’s accounting ledger; entering deposits in the firm’s accounting ledgers for retainers that had been received but not timely deposited; and a failure to record a check drawn from the trust account. As Klahn had not reconciled his accounting records with his trust account bank statements for many years, the errors went undetected and resulted in the inadvertent mishandling of client funds.
Klahn was admitted to practice in 1980.


JON S. HENRICKSEN
OSB #73135
Gladstone
60-day suspension


On Jan. 10, 2005, the disciplinary board approved a stipulation for discipline, effective on Feb. 9, 2005, suspending Gladstone lawyer Jon S. Henricksen for 60 days for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 9-101(A) (failure to deposit and maintain client funds in trust), DR 9-101(C)(3) (failure to provide client with an accounting) and DR 9-101(C)(4) (failure to promptly return client property).
In one matter Henricksen was retained to represent a client in a criminal matter. Pursuant to an oral fee agreement, the client paid Henricksen funds which Henricksen deposited into his lawyer trust account. Immediately thereafter Henricksen withdrew half of those funds believing he had earned them, when there was no written agreement stating that the funds were non-refundable and earned upon receipt.
In that same matter, Henricksen accounted to the client for the use of some of the funds he initially received from the client, but failed to provide subsequent accountings for the remaining funds, and for other funds he received from refunds of the client’s bail money. Henricksen also delayed delivering the client’s file materials to the client’s agents for seven months after the materials were first requested.
In another matter, Henricksen endorsed his former wife’s name on the back of check made payable to both of them. At the time, Henricksen knew that he did not have authority to endorse her name.


B. RUPERT KOBLEGARDE
OSB #70079
Portland
Public reprimand


On Jan. 19, 2005, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer B. Rupert Koblegarde for violating DR 5-105(E) (current client conflict of interest).
Koblegarde represented a client in an estate planning matter. In connection with that matter, the client executed a revocable living trust, a power of attorney, a pour over will, and a warranty deed prepared by Koblegarde. On the same day that those documents were executed by the client, Koblegarde undertook to represent the client’s daughter in a proceeding to appoint a guardian and conservator for the client. With regard to the guardianship and conservatorship matter, the interests of the client and her daughter were adverse. To the extent disclosure and consent was available to cure the conflict of interest, Koblegarde undertook to represent the daughter in the guardianship and conservatorship matter without obtaining consent that complied with the full disclosure requirements of DR 10-101(B) from both the client and her daughter.


BEVERLY LONG PENZ
OSB #84320
La Grande
Form B resignation


Effective Jan. 25, 2005, the Oregon Supreme Court accepted the form B resignation of Beverly Long Penz. At the time of the resignation, a formal disciplinary proceeding was pending against her alleging violation of: DR 1-103(C) (failure to cooperate); DR 2-110(A)(1),(2) (improper withdrawal); DR 2-110(B)(2) (failure to withdraw); DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (failure to promptly deliver client property). The bar was also investigating other complaints that had been filed concerning Penz’s conduct.
Penz was admitted to practice in Oregon in 1984. She had a prior record of discipline.


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