Oregon State Bar Bulletin — JANUARY 2006

Discipline

Note: More than 12,800 persons are eligible to practice law in Oregon. Some of them share the same name or similar names (as happens this month). All discipline reports should be read carefully for names, addresses and bar numbers.

THOMAS JOHNSON
OSB #95312
Portland
90-day suspension

Pursuant to a stipulation for discipline approved by the disciplinary board on Nov. 2, 2005, Thomas Johnson of Portland, was suspended for a period of 90-days, effective Nov. 5, 2005, for violation of: DR 1-102(A)(3) (conduct involving dishonesty or misrepresentation); DR 6-101(B) (neglect of a legal matter) and DR 7-102(A)(5) (knowingly making a false statement of fact).

The charges arose out of Johnson’s representation of a client in a guardianship proceeding. After providing a draft of the guardianship petition to his client, Johnson took no further substantial action to obtain the appointment of a guardian. After about four months, Johnson represented to his client’s sister that his inaction in the guardianship matter had been the result of Johnson having sustained injuries in an automobile accident, which necessitated a prolonged period of recovery. He further represented that he had instructed other attorneys in his firm to attend to the guardianship proceeding, but they had not done so. A month later, Johnson represented to his client’s sister that he had filed the petition for guardianship and was waiting to hear from the court concerning its ruling on a motion he had filed to waive service of notice on the proposed ward’s father. The representations Johnson made to his client’s sister were false in that: he had not been involved in an automobile accident; had not sustained any injuries; had not assigned the case to other lawyers in his firm; had not filed the guardianship petition and had not filed a motion for waiver of notice.

In arriving at a sanction, the stipulation recited that although Johnson acted with a selfish motive and engaged in a pattern of misconduct extending over about seven months, he had no prior disciplinary record, was cooperative toward the disciplinary proceeding and was experiencing personal or emotional problems at the time of the conduct.

STEPHEN EICHELBERGER
OSB #79217
Salem
60-day suspension

Effective Nov. 9, 2005, the disciplinary board approved a stipulation for discipline suspending Stephen Eichelberger from the practice of law for 60 days for two violations of DR 5-101(A) (personal interest conflict) and two violations of DR 5-105(C) (former client conflict of interest).

Eichelberger’s violations stem from his representation and dealings with a contractor client, Harris. Eichelberger purchased a number of empty lots from Harris and then hired Harris to construct houses on the lots. Many of the lots were located in the same subdivision for which Eichelberger provided legal services to Harris. Eichelberger drafted the financing agreements used between him and Harris on a handful of the projects. Eichelberger acknowledged in the stipulation that his failure to provide Harris with adequate disclosures in these projects violated DR 5-101(A).

When some of the projects were not timely completed, Eichelberger withdrew from representing Harris and resigned as the registered agent for Harris’s companies. However, Eichelberger thereafter pursued a legal claim against Harris relative to one of the construction projects without disclosure and consent, in violation of DR 5-105(C). Eichelberger also represented another partner of Harris in asserting a claim against Harris on a property in the same subdivision, without disclosure and consent, in violation of DR 5-105(C).

In another matter that occurred while Eichelberger was still Harris’s lawyer, Eichelberger participated in a meeting with Harris and an investment partner at which terms of an operating agreement, including access to certain funds were negotiated. Eichelberger did not sufficiently clarify to Harris that Eichelberger was acting in his own interests in the meeting to protect and collect outstanding attorney fees owed by Harris, nor did Eichelberger instruct Harris to obtain independent advice as to whether Harris should allow Eichelberger to participate, in violation of DR 5-101(A).

The stipulation reflected that Eichelberger’s sanction was aggravated by a selfish motive, a pattern of misconduct, multiple offenses and substantial experience in the practice of law. Eichelberger’s sanction was mitigated by his lack of prior discipline, lack of dishonest motive, personal or emotional problems at the time of some of the misconduct, full disclosure in the disciplinary proceedings, good reputation and remorse.

RODOLFO A. CAMACHO
OSB #95520
Salem
Public reprimand

On Nov. 22, 2005, the disciplinary board approved a stipulation for discipline reprimanding Rodolfo A. Camacho for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 7-110(B) (ex parte communication with the court).

A creditor filed a small claims complaint against a business and an individual for collection of a debt. Notice of the complaint and summons to appear were personally served on the defendants. The defendants did not file an answer or other appearance, and the court entered judgment against the defendants. Thereafter, the creditor caused a writ of garnishment to be issued and served on the defendants’ bank.

After learning of the garnishment, the defendants retained Camacho to represent their interests. Camacho, without notice to the judgment creditor, appeared ex parte before the court and presented a motion to vacate the judgment and garnishment, together with supporting affidavits. At the time Camacho submitted the motion, he failed to submit a responsive pleading to the small claims complaint, and without sufficient investigation, represented to the court what his clients told him: that the clients had never been served, personally or by mail, with a copy of the summons and the complaint. The representation was not accurate.

The court granted Camacho’s motion and signed the order Camacho presented. Thereafter, he provided the judgment creditor with a copy of the signed order. The creditor did not receive a copy of the motion and supporting affidavits, and was otherwise unaware of the information upon which the defendants based their motion.

The creditor retained the services of an attorney to represent her interests and filed a motion to set aside the order vacating the judgment. The court held a hearing and granted the creditor’s motion, and thereafter again entered judgment in her favor.

Camacho was admitted to practice in Oregon in 1995. He had no prior record of discipline.

GARY KAHN
OSB #81481
Portland
Public reprimand

On Nov. 29, 2005, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Gary Kahn for violation of DR 5-105(E) (current client conflict of interest).

Kahn prepared documents related to a transaction in which a long-time client loaned money to a corporation, which was also a client. At the time Kahn prepared the documents the long-time client and the corporate client each had a reasonable expectation that Kahn was representing their interests in the transaction. Kahn negligently failed to recognize the conflict of interest created by the reasonable expectations of each client. As a result, Kahn engaged in an actual conflict of interest.

A principal in the corporation owned a vehicle which had been damaged in a collision. The principal approached Kahn for personal representation in the collision matter, and Kahn referred the principal to an associate who undertook to represent the principal on the property damage claim. While Kahn’s associate continued to pursue the property damage claim on behalf of the principal’s personal interests, Kahn negligently engaged in a likely conflict of interest by representing another party in an unrelated transactional matter adverse to the principal without full disclosure and consent to the likely conflict from all affected parties.

In arriving at a sanction the stipulation noted that although Kahn committed multiple violations, Kahn had no prior disciplinary history and showed a cooperative attitude toward disciplinary proceedings.


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