Oregon State Bar Bulletin — JULY 2005

Discipline

Note: More than 12,450 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.

MICHAEL R. SHINN
OSB #73270
Portland
Reprimand

On May 13, 2005, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Michael R. Shinn for violating DR 2-110(A)(1) (failure to obtain permission to withdraw) and DR 2-110(A)(2) (failure to take reasonable steps upon withdrawal).

In one matter Shinn undertook to represent a client in a claim against her former husband for personal injuries she allegedly sustained. Shinn filed a complaint on the client’s behalf in federal court but thereafter ceased working on the client’s legal matter because service upon the client’s former husband was not timely accomplished due to an internal administrative error. Thereafter, Shinn failed to obtain the court’s permission to withdraw as required by local rule. Shinn also failed to take reasonable steps to avoid foreseeable prejudice to his client in that he failed to give her written notice that he was no longer pursuing her case and failed to promptly forward to his client correspondence he received from the court regarding her legal matter.

In another matter Shinn was retained by a client regarding a pending lawsuit. Three months later the client sent a letter to Shinn terminating his services and informing him that he had retained a new lawyer to represent him in the pending matter. After Shinn was terminated he orally informed some of the opposing lawyers that he was no longer representing the client. However, Shinn failed to take other reasonable steps to avoid foreseeable prejudice to his client’s rights, including: executing and returning a substitution of counsel; notifying the court and all the opposing lawyers that he was no longer representing the client; and promptly forwarding correspondence and pleadings received (after his termination) to the client’s new lawyer.

JOHN P. BOWLES
OSB # 97149
Oregon City
1-year suspension

On May 24, 2005, the Oregon Supreme Court approved a stipulation for discipline suspending John P. Bowles from the practice of law for 1 year for violation of: DR 1-102(A)(2) (criminal conduct); DR 1-102(A)(3) (misrepresentation); DR 1-103(C) (failure to fully respond to disciplinary authorities); DR 2-106(A) (excessive fee); DR 6-101(B) (neglect of a legal matter); DR 9-101(A) (failure to deposit client funds in trust); DR 9-101(C)(3) (failure to maintain adequate records of client funds) and DR 9-101(C)(4) (failure to promptly deliver client property). The suspension was effective on June 1, 2005.

In one matter, a client consulted Bowles for advice concerning the defense of a forcible entry and detainer claim. Bowles told the client that he had defenses and the client could recover his attorney’s fees from the landlord. The client retained Bowles and paid him a flat fee. Bowles did not deposit the funds in a trust account. Because Bowles did not have a written fee agreement with the client that provided that the fee was earned on receipt, he was required to deposit the funds in a trust account and withdraw them only as they were earned.

The landlord had the action dismissed immediately, because the notice of eviction was defective. Thereafter, Bowles failed to file a statement for the award with the court. He also failed to inform his client that he was not taking action to obtain the award. Bowles told the client that he was in the process of recovering the fees and costs when he knew that the time to file had passed.

The client filed a complaint with the bar. Bowles did not provide timely or complete responses to the bar’s inquiries and requests. He also made certain statements to the bar that were misleading.

In another matter, clients retained Bowles concerning the defense of an FED claim and to assert claims for damages and other relief against the landlord. The client had withheld rent from the landlord because of habitability issues. Although the FED proceeded to hearing with a decision and judgment in favor of Bowles’ clients, Bowles failed to provide the clients with copies of pleadings and court notices; failed to timely communicate with and subpoena health and building inspectors concerning the premises; and failed to take action to assert claims to terminate the clients’ tenancy and for the award of other damages. Bowles also failed to timely prepare and file a statement for costs and attorney fees and assist the clients in collecting their judgment against the landlord or to obtain the release of funds they had deposited with the court prior to trial.

During the representation, the clients delivered certain funds and photographs to Bowles. Bowles failed to maintain complete records of his receipt, deposit and disbursement of the clients’ funds, and he failed to account for the funds delivered to him. After the clients terminated the lawyer-client relationship, they asked Bowles to deliver all paperwork, photographs and other documents concerning their legal matter to them. Bowles failed to do so.

Bowles also failed to file income tax returns for several years in violation of the state and federal laws.

Bowles was admitted to practice in Oregon 1997. He had no prior record of discipline.

ALEXANDER GREGORY
OSB # 94324
Portland
Reprimand

On May 25, 2005, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Alexander Gregory for violation of DR 2-110(A)(3) (failure to refund unused retainer on termination of lawyer-client relationship) and DR 9-101(C)(4) (failure to promptly deliver client property).

In February 2004, a client retained Gregory to represent her interests in a dissolution of marriage matter. The client delivered a retainer to Gregory, which he deposited in a lawyer trust account. In August 2004, the client terminated the lawyer-client relationship and requested that Gregory return the unused portion of the retainer. Gregory did not respond. In September 2004, the client’s new lawyer requested the client’s file. She also renewed the client’s request for the return of the unused portion of the retainer held by Gregory. Again, Gregory did not respond and a complaint was filed with the bar. Thereafter, he returned the unused portion of the client’s retainer and the client’s file to the client. Gregory admitted that his conduct violated the disciplinary rules.

Gregory was admitted to practice in 1994. He had no prior record of formal discipline.

PHILIP LEBENBAUM
OSB # 86062
Portland
Reprimand

On May 26, 2005, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Philip Lebenbaum for violation of DR 6-101(B) of the Code of Professional Responsibility.

A client retained Lebenbaum to pursue an appeal of an insurer’s denial of a workers’ compensation claim. Lebenbaum pursued the appeal process, which resulted in an adverse decision by the Workers’ Compensation Board. Thereafter, Lebenbaum filed a petition for review with the Oregon Court of Appeals. Between December 2003 and August 2004, Lebenbaum filed motions for extension of time to file the opening brief. The court granted the motions. Lebenbaum did not file the brief, and in September 2004, the court dismissed the petition for want of prosecution. Between about December 2003 and September 2004, Lebenbaum failed to provide his client with copies of motions filed with and orders of the court and failed to adequately communicate with his client concerning his case. Between September 2004 and December 2004, he also failed to timely notify his client that the court had dismissed the case and took no action to obtain relief from default to reinstate the petition for review. Lebenbaum admitted that his conduct constituted neglect of a legal matter.

Lebenbaum was admitted to practice in 1986. He had previously been admonished for similar misconduct.

DAVID L. DENHARTIGH
OSB #91038
Salem
90-day suspension

On May 30, 2005, the disciplinary board approved a stipulation for discipline, effective on July 1, 2005, suspending Salem lawyer David L. DenHartigh for 90 days for violating DR 6-101(B) (neglect of a legal matter), DR 7-101(A)(2) (intentional failure to carry out a contract of employment), DR 9-101(A) (failure to maintain client funds in trust) and DR 9-101(C)(3) (failure to account for client funds).

In one matter DenHartigh undertook to represent a client in a child support matter. For more than three years, DenHartigh intentionally failed to take constructive action to advance his client’s claims and failed to maintain adequate communications with his client regarding her legal matter.

In another matter DenHartigh withdrew earned funds from his lawyer trust account for work performed on behalf of a client, but failed to create or maintain records that clearly reflected the source and amount of those funds. A few months later, DenHartigh withdrew additional earned funds from his lawyer trust account on behalf of the same client even though the client had no funds deposited with DenHartigh. DenHartigh failed to discover the problem because he did not reconcile the account balance. A number of months later when DenHartigh made another withdrawal of earned funds, it resulted in an overdraft.

RALPH G. MONSON
OSB #68109
Toledo
Reprimand

On June 3, 2005, the disciplinary board approved a stipulation for discipline reprimanding Toledo attorney Ralph G. Monson for violation of DR 3-101(B) and ORS 9.160. Monson admitted that he violated the rules. ORS 9.160 prohibits the practice of law by a person who is not an active member of the bar. ORS 9.200 requires Oregon lawyers to pay an annual membership fee to be an active member of the bar.

In December 2003, the OSB mailed a statement to Monson assessing his 2004 membership fee; payment of the fee was due by Feb. 2, 2004. In late January 2004, the bar received a request from Monson’s office to send a duplicate copy of the 2004 membership fee statement. The bar promptly mailed a duplicate copy of the fee statement to Monson. Monson failed to pay his 2004 bar membership fee and subsequent notices were sent to him, including a final billing notice, which included notice that he would be automatically suspended from membership if he failed to pay the fee. Monson failed to pay the fee and was suspended from membership in the bar and the practice of law in Oregon. Notice of the suspension was mailed to Monson. The notice was received in Monson’s office, but not by Monson. Thereafter, Monson continued to practice law in Oregon in violation of Oregon law, but without actual knowledge of his suspension.

Upon receiving actual notice that he was suspended, Monson promptly submitted a statement in support of BR 8.4 (reinstatement to the bar) and paid his 2004 bar membership fee. He was immediately reinstated as an active member. Monson was admitted to practice in 1968.

He had no prior record of discipline.

MARY A. NESTER
OSB #93381
Portland
30-day suspension

Pursuant to a stipulation for discipline approved by the disciplinary board, Portland lawyer Mary A. Nester was suspended for 30 days, effective June 3, 2005, for violation of DR 5-101(A) (lawyer’s self-interest conflict) and DR 1-103(C) (failure to cooperate with the bar).

The DR 5-101(A) violation arose out of Nester’s representation of the owner and operator of a nursing home in a proceeding before the Oregon Board of Examiners of Nursing Home Administrators (BENHA). In the course of this proceeding, the parties entered a consent order that required Nester’s client to retain the services of a management consulting firm to perform a comprehensive evaluation of the management of the nursing home and report the results of the evaluation and subsequent periodic reevaluations to BENHA. The client retained a management consulting firm in which Nester owned an interest. Nester continued to represent the client in the BENHA proceeding without the client’s consent after full disclosure of the potential adverse impact upon Nester’s professional judgment of her ownership interest in the consulting company, which was required to report to BENHA its evaluation of the client’s nursing home and any failure to comply with its recommendations.

In the course of the bar’s investigation of her conduct, Nester represented that she had provided the client with both oral and written information regarding potential conflicts of interest and had advised the client in writing to seek independent counsel. In fact, Nester had not disclosed a possible lawyer’s self-interest conflict to her client and had not advised the client in writing to seek independent counsel. Nester did not know the truth or falsity of her representations to the bar when she made them because she had not reviewed her client file. These facts formed the basis of the DR 1-103(C) violation.

In arriving at a sanction, the stipulation recited Nester’s substantial experience in the practice of law, the absence of a prior disciplinary record and the absence of a dishonest or selfish motive.


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