Oregon State Bar Bulletin — JUNE 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.

PENNY L. DAVIS
OSB #77153
Portland
120-day suspension

On April 25, 2005, the disciplinary board approved a stipulation for discipline suspending Penny L. Davis from the practice of law for 120 days for violation of: DR 1-103(C) (failure to respond to disciplinary authorities); DR 6-101(B) (neglect of a legal matter) and DR 7-101(A)(2) (failure to carry out a contract of employment). Davis admitted the violations. The suspension was effective on June 1, 2005.

In July 2002, a mother, father and their minor child died as a result of an explosion/fire in their home. In July 2002, personal representatives were appointed for the estates of the deceased persons.

In February 2003, the personal representative of the father’s estate retained Davis to represent her interests as the personal representative and to conclude the probate of the father’s estate. Primary issues of dispute were the distribution of insurance proceeds paid to the mother’s estate, and the payment of the parents’ debts and expenses. Between March 2003 and January 2004, the personal representative of the father’s estate provided information to and requested information and action from Davis concerning the estates and her duties as personal representative. In May 2003, counsel for the personal representative of the mother’s estate proposed terms to Davis to resolve issues between the estates.

Between about March 2003 and January 2004, Davis: failed to respond to her client’s inquiries and failed to timely communicate with her client; failed to provide her client with copies of written communications Davis received from other persons concerning the estates; failed to timely convey her client’s requests to and otherwise communicate with counsel for the mother’s estate; failed to monitor her client’s case; failed to take action to resolve issues of dispute between the estates and failed to take substantive action to advance and protect the interests of her client and the father’s estate.

In January 2004, Davis’ client filed a complaint with the bar concerning Davis’ conduct. Disciplinary counsel made several requests to Davis asking for her explanation. She did not provide the explanation, and the matter was referred to the local professional responsibility committee for investigation.

The LPRC investigator made several attempts to schedule a meeting with Davis. Davis did not respond. The investigator eventually caused a subpoena to be served on Davis to require her appearance for deposition and to produce documents concerning the matter. Davis complied with the subpoena.

Davis was admitted to practice in Oregon 1977. She had no prior record of discipline.

MICHAEL R. GENNA
OSB #72097
Cottage Grove
60-day suspension

On April 25, 2005, the disciplinary board approved a stipulation for discipline suspending Michael Genna from the practice of law for 60 days for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice); and DR 7-110(B)(2) and (B)(3) (ex parte communication with the court). Genna admitted the violations. The suspension was effective on May 1, 2005.

In September 2002, a trial court entered a judgment and decree of dissolution of marriage. Pursuant to a stipulation and the decree, the parties were awarded joint custody of their minor child. In February 2003, the ex-husband, represented by counsel, filed a motion to modify the decree concerning custody and child support issues. The ex-wife failed to file an appearance or notify her ex-husband’s counsel that she intended to do so.

In April 2003, the ex-husband’s counsel filed a motion for order of default and a proposed form of judgment modifying the decree concerning custody and related issues. The court granted the motion and entered the default and modified judgment. Within a few days, Genna, on behalf of ex-wife, filed a motion to set aside the order of default and judgment. Before the time expired for the ex-husband to respond, without hearing, the court granted the ex-wife’s motion. The ex-husband’s counsel thereafter filed a motion for reconsideration. After hearing, the court granted the ex-husband’s motion and denied the ex-wife’s motion to set aside the order of default and judgment. The court reserved ruling on the issue of attorney fees, which was to be scheduled for a later hearing.

In July 2003, the court clerk’s office issued a notice, which scheduled an October trial date for the proceeding. However, in the interim, the issue of attorney fees came before the court for hearing in late July. Genna and his client, and counsel for the ex-husband appeared. The court upheld its prior order of default and judgment against the ex-wife, but modified the award of attorney’s fees to a lesser amount. Thereafter, the court entered an appropriate judgment, which action concluded proceedings before the court, and closed the case.

In October 2003, the day before the originally scheduled trial date, Genna noted that the case was not on the court’s trial calendar. Genna asserted that he mistakenly believed there were unresolved issues in the matter to be decided by the court and he instructed the court’s calendaring clerk to place the case back on the docket. The following day, Genna appeared before the presiding judge (not the judge who previously ruled on the matter) without notice to the ex-husband’s counsel. Genna advised the presiding judge that it was the time set for trial and presented his client’s testimony for a prima facie case in response to the ex-husband’s motion for modification of judgment concerning custody and related issues. Thereafter, Genna submitted a proposed form of judgment to the court, which was signed. Genna then sent a copy of the signed amended judgment to the ex-husband’s counsel. The ex-husband’s counsel objected. Genna appeared and apologized to the court. The court granted the ex-husband’s motion to set aside Genna’s form of amended judgment.

In the stipulation, Genna admitted that he was negligent in not checking his file or the status of the matter more carefully. Had he done so, he would have realized that there were no more issues to be decided by the court in October.

Genna was admitted to practice in Oregon 1972. He had no prior record of formal discipline.

STEVEN L. KAY
OSB #99192
Portland
Form B resignation

Effective May 3, 2005, the Oregon Supreme Court accepted the Form B resignation of Steven L. Kay. At the time of the resignation, a formal disciplinary proceeding was pending against Kay in connection with two clients. In one matter, it was alleged that Kay: improperly withdrew without taking steps to protect his clients interests (DR 2-110(A)(2)); neglected his clients’ legal matter (DR 6-101(B)) and failed to promptly provide client property (DR 9-101(C)(4)). In both matters, it was alleged that Kay failed to respond to disciplinary counsel’s inquiries in connection with the investigation of the client complaints (DR 1-103(C)).

Kay was admitted to practice in 1999. The court ordered that Kay’s client files be delivered to the firm of Parker, Bush and Lane in Portland.

ALLAN F. KNAPPENBERGER
OSB #73169
Portland
120-day suspension

On March 24, 2005 the Oregon Supreme Court issued an opinion suspending Portland lawyer Allan F. Knappenberger for 120 days, effective June 6, 2005, for violating DR 5-105(C) (former client conflict of interest) and DR 7-104(A)(1) (communicating with a represented person).

In one matter, a husband consulted with Knappenberger regarding a pending dissolution of marriage proceeding. They also discussed whether, under the circumstances, the husband had sufficient facts upon which a court would grant him a restraining order against his wife. Six weeks later, without obtaining consent after full disclosure, Knappenberger undertook to represent the wife in the pending dissolution of marriage proceeding and also in a proceeding regarding a restraining order that the husband had obtained against the wife after he consulted with Knappenberger — based, in part, upon the facts he had discussed with Knappenberger.

The court found that, for purposes of conflict of interest rules, the husband was Knappenberger’s former client, for: the consultation had lasted two hours; Knappenberger provided the husband with substantive legal advice on various aspects of the dissolution of marriage proceeding; both Knappenberger and the husband reasonably believed the consultation was confidential and Knappenberger billed the husband for the consultation.

The court concluded that when Knappenberger undertook to represent the wife in the dissolution of marriage proceeding, he engaged in an actual conflict of interest because he assumed a duty to advocate on the wife’s behalf when he previously had a duty to advocate on the husband’s behalf in the same matter. The court also found that when Knappenberger undertook to represent the wife in the restraining order proceeding he engaged in an actual conflict of interest, because in connection with his prior representation of the husband, he had been provided with confidences and secrets that he could have used in a way that would have been likely to harm the husband in the restraining order proceeding.

In a second matter, four of Knappenberger’s employees filed a lawsuit against him. After Knappenberger was served with the lawsuit, he confronted two of his employees about the lawsuit when he knew they were represented by a lawyer in the lawsuit.

STEVEN R. SCHARFSTEIN
OSB #93490
Lake Oswego
120-day suspension; 90 days stayed with probation

Pursuant to a stipulation for discipline approved by the disciplinary board, Lake Oswego lawyer Steven R. Scharfstein was suspended for 120 days, effective April 9, 2005, for violation of DR 6-101(B) (neglect of a legal matter) and DR 1-103(C) (failure to cooperate with the bar). The disciplinary board stayed the imposition of 90 days of Scharfstein’s suspension pending the completion of a one-year probation.

The charges arose out of Scharfstein’s conduct in three client matters. In two matters, Scharfstein undertook to represent insurance company clients to recover a subrogation claim and unpaid premiums. Thereafter, Scharfstein failed to file litigation or respond to the clients’ attempts to contact him, and he failed to keep the clients informed about the status of their cases.

In the third client matter, Scharfstein represented a client in a step-parent adoption and a medical malpractice matter. Scharfstein failed to complete the adoption timely and failed to respond to his client’s attempts to contact him. When the court dismissed the adoption proceeding, Scharfstein failed to take prompt steps to reinstate the petition. Scharfstein also failed to take any substantial action on the client’s medical malpractice case during this same period.

Concerning a sanction, the stipulation recited as aggravating factors that Scharfstein had committed multiple offenses that displayed a pattern of misconduct. In mitigation, the stipulation recited that Scharfstein had no prior disciplinary record, did not act with a dishonest or selfish motive, experienced certain personal problems and has taken steps to remedy the office management and conflict management problems that contributed to his conduct.

Name Withheld
Reciprocal discipline denied

In an opinion filed May 5, 2005, the Oregon Supreme Court denied the bar’s recommendation that an accused attorney be publicly reprimanded for conduct resulting in discipline by a three-judge panel of the Court of Appeals for the 10th Circuit.

The attorney, who practices law in Utah, is a member of the state bars of Utah and Oregon and the federal bars of the District of Utah and the Court of Appeals for the 10th Circuit. According to the 10th Circuit panel’s Sept. 1, 2004 order, the attorney and his law firm represented a criminal defendant who had filed a pro se notice of appeal with the 10th Circuit. The court thereafter issued orders to show cause on May 5, April 27 and July 8, 2004, directing the accused attorney to respond to that court’s inquiries regarding his handling of the appeal. The accused attorney did not respond to the first order, but did respond to the April and July orders. The panel concluded that the attorney’s lapses in handling the appeal and failure to respond to the court’s orders and notices were unacceptable and demonstrated a disregard for the court’s rules and directives. The 10th Circuit also found that the attorney had failed to review either the Federal Rules of Appellate Procedure or the local rules of that court. The panel entered an order reprimanding the attorney for his failure to respond to the court’s orders and directives and for his failure to follow the court’s rules.

The 10th Circuit Clerk notified the Oregon State Bar that the attorney had been disciplined. Pursuant to BR 3.5(a) (governing reciprocal discipline), the bar filed a copy of the 10th Circuit order with the Oregon Supreme Court, along with the State Professional Responsibility Board’s recommendation that the attorney also be reprimanded in Oregon for engaging in conduct that violated DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 7-106(A) (disregarding a standing rule or ruling of a tribunal). On review, the Oregon Supreme Court denied the bar’s recommendation. It found that the 10th Circuit’s order did not establish that the attorney’s conduct violated any Oregon disciplinary rules. The court found insufficient evidence that the conduct resulted in prejudice to the administration of justice, or that the attorney (as opposed to other attorneys in his law firm) was responsible for handling the client’s appeal or for complying with the 10th Circuit orders to show cause.

STANLEY FIELDS
OSB #78200
Salem
Form B resignation

Effective June 13, 2005, the Oregon Supreme Court accepted the Form B resignation of Stanley Fields. At the time of the resignation, a formal disciplinary proceeding had been authorized by the State Professional Responsibility Board alleging that Fields mishandled his lawyer trust account (DR 9-101(C)(3)), failed to timely file his personal income tax returns (DR 1-102(A)(2)) over a number of years and failed to fully respond to disciplinary counsel’s inquiries in connection with the investigation of these matters (DR 1-103(C)).

The resignation indicated that Fields’ client files had been or would be delivered to attorney Michael B. Dye, also of Salem.



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