|Oregon State Bar Bulletin JULY 2006|
Note: Nearly 12,750 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.
Effective May 24, 2006, a trial panel reprimanded Portland lawyer Charles Duffy for violating DR 1-102(A)(3) (conduct involving misrepresentation) and DR 1-102(A)(4) (conduct prejudicial to the administration of justice).
One week before the trial of a medical malpractice case, Duffy sent a letter to his expert witness setting out specific questions he would be asking and the answers he understood the expert would give. At trial, after Duffy’s expert testified on direct examination, the opposing lawyer reviewed the expert’s file, and saw the letter Duffy had sent one week earlier. The opposing lawyer did not cross-examine the expert at that time. Instead, the expert left with his file.
When the expert returned a few days later to testify further, the opposing lawyer asked Duffy for the expert’s file. At that time, the expert and Duffy were conversing in the hallway of the courthouse and the expert’s file was open and sitting on the window well between them. A short time later, Duffy entered the courtroom and handed the expert’s file to the opposing lawyer. The opposing lawyer and her client searched the file, but could not find the letter Duffy had sent to the expert a week before trial. When the opposing lawyer brought the disappearance of the letter to the court’s attention, Duffy represented to the court that he did not know what letter the opposing lawyer was referring to.
The bar alleged that Duffy engaged in dishonesty by removing the letter from his expert’s file, engaged in misrepresentation when he informed the court that he did not know what letter the opposing lawyer was referring to, and that his conduct also constituted conduct prejudicial to the administration of justice.
The trial panel dismissed the first charge because there was not clear and convincing evidence that Duffy had removed the letter from his expert’s file. The trial panel sustained the other two charges. The panel found that, under the circumstances, it was not plausible that Duffy did not recall the letter he had written only 12 days earlier. The trial panel imposed a reprimand because, given Duffy’s excellent reputation, the panel was inclined to believe that he would not repeat this type of violation.
On May 15, 2006, the disciplinary board approved a stipulation for discipline suspending Sharon Hockett from the practice of law for 60 days for violation of DR 6-101(B) (neglect of a legal matter). The suspension was effective on May 26, 2006.
Hockett was retained to represent a client concerning post dissolution decree issues. The client paid a retainer to Hockett for the legal services to be performed. The parties agreed to terms and a stipulated supplemental judgment concerning the post decree issues was filed with the court.
Hockett asserted that the client was entitled to an award of her reasonable attorney fees. Hockett prepared a statement for attorney fees, served a copy on opposing counsel, and delivered the original to the court. Hockett did not use the correct case number. The court did not file the statement and returned it to Hockett. Opposing counsel filed objections and served a copy thereof on Hockett.
Hockett did not re-file the statement for attorney fees. She did not communicate with the court or opposing counsel. Hockett did not request a hearing or take other action concerning the award of attorney fees. Hockett also failed to timely review her mail and messages from the client and did not timely respond to the client’s communications.
Ultimately, the client terminated Hockett and requested that she return the unused portion of the retainer. Hockett failed to respond until the client filed a complaint with the bar.
Hockett was admitted to practice in Oregon 1981. She had a prior record of discipline.
ALLAN F. KNAPPENBERGER
On May 18, 2006, the Oregon Supreme Court issued an opinion suspending Portland lawyer Allan F. Knappenberger for one year, effective July 22, 2006, for violating DR 6-101(B) (neglect of a legal matter).
Knappenberger represented the wife in a dissolution of marriage proceeding. After a trial, the court signed a judgment dissolving the marriage. In relevant part, the judgment awarded the wife an interest in a pension the husband would receive upon retirement. The judgment directed that the transfer of the wife’s interest be made by a Qualified Domestic Relations Order (QDRO). For over eight years Knappenberger failed to complete the QDRO despite a number of letters from the opposing lawyer and the lawyer representing the pension plan reminding him about the matter. During those eight years, the wife’s eligibility for benefits was at risk until the pension plan administrator agreed to honor the QDRO that was eventually presented.
In deciding to suspend Knappenberger for a year, the court gave significant weight to Knappenberger’s prior disciplinary record.
On May 20, 2006, the disciplinary board dismissed a disciplinary action brought against a lawyer who had handled a probate matter. The bar had charged the lawyer with violating DR 2-106(A) (charging or collecting an illegal or excessive fee) and DR 5-105(E) (current client conflict of interest).
In the probate matter, the lawyer represented both the personal representative of the estate and the trustee of a testamentary trust established by the decedent’s will to hold savings bonds for the benefit of the decedent’s brother. Even though the court ordered a partial distribution of the estate assets, including the savings bonds, the bonds were not transferred to the trustee, but remained in the control of the personal representative. The lawyer later caused the personal representative to cash two bonds and without a court order, applied the proceeds to his fees incurred in establishing and funding the trust. The bar alleged that this conduct violated DR 2-106(A) and argued that the probate statutes prohibited the payment of administrative expenses from specific devises without permission from the probate court.
The bar also alleged that the interests of the personal representative and trustee were adverse with respect to whether the estate or trust assets should pay the lawyer’s fee for services relating to drafting a separate trust document and transferring the savings bonds to the trustee. The lawyer had billed the estate for these services, but the personal representative objected to paying trust-related fees. In deference to the personal representative’s objections, the lawyer charged the trust for the services he had previously charged to the estate.
The trial panel found that because the lawyer had treated the trust and estate assets as separate and discrete after the order of partial distribution, the order had resulted in the trustee having constructive possession of the bonds. The bonds were, therefore, no longer assets of the estate or subject to the probate statutes, and there was no objectively reasonable basis for the trustee to contend that trust-related fees should have been charged against the principal of the probate estate. The panel also found that the trustee had agreed to pay for the lawyer’s services and had authorized the negotiation of the bonds and payment of the lawyer’s fees from the proceeds. Accordingly, the panel concluded that the interests of the trustee and personal representative were not adverse and that no conflict between their interests existed.
JOHN C. MOORE
On June 7, 2006, the disciplinary board approved a stipulation for discipline reprimanding Lake Oswego lawyer John C. Moore for violation of RPC 3.3(a)(5) (knowingly engaging in illegal conduct).
Moore represented a client living in the vicinity of Mt. Hood in a domestic relations matter that required a Uniform Support Affidavit. Moore mailed the affidavit to his client. The client signed the affidavit and returned it to Moore without the required notarization. Moore, who is a licensed notary public in Oregon, telephoned his client to verify the signature. Upon verifying the signature via telephone, Moore notarized the affidavit even though the client had not appeared personally before Moore. At the time that he notarized the document, Moore inserted the words "by telephone" in the jurat, disclosing that his client had not appeared personally before him. Moore subsequently filed the notarized affidavit in the domestic relations proceeding.
Moore’s conduct was illegal since the notary statute mandates that a notary not attest to or verify a signature unless the affiant or signer has appeared personally before the notary for that purpose. Although Moore believed his conduct was consistent with the purposes to be served by the notary law, he knew there was no express exception to the requirement that notarizations be made in person and he was unaware of any Oregon case authority that he believed would permit telephone notarization.
DAVID I. BEAN
Effective June 12, 2006, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland attorney David Bean for violations of RPC 3.3(d) (failing to inform a tribunal of all material facts in an ex parte proceeding) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Bean represented a mother in a dissolution and subsequent custody matters related to the parties’ joint custody of their child. The Friday prior to an anticipated Monday appearance, Bean and the mother properly notified the father that they would be appearing to request an ex parte order for emergency custody of the child.
When Bean and the mother appeared, they found the father already waiting in the hallway outside the chambers and courtroom of the judge scheduled to hear ex parte matters that day. Bean recognized the father but had no contact with him and was unclear whether the father had notified the court of his presence.
After a short while, a clerk appeared in the hallway and inquired whether anyone was present for ex parte matters. Bean gave his emergency motion to the clerk, but did not inform the clerk that the father was present. The father did not make his presence known to the clerk.
The clerk returned a few minutes later with a signed order awarding custody to the mother. Bean did not inform the clerk that the father was present or that the judge had signed the order based on the emergency motion without hearing from the father, as contemplated by the applicable statute. Bean filed the order and left the courthouse.
Thereafter, the father informed the court that he had been present to be heard on the emergency motion, and the judge rescinded the order.
The stipulation cited that Bean did not have a dishonest or selfish motive, but that there was substantial potential harm caused by his conduct. Bean has been admitted since 2001 and has no prior record of discipline.
WILLIAM N. KENT
Effective July 24, 2006, the Oregon Supreme Court approved a stipulation for discipline suspending Eugene attorney William Kent from the practice of law for 2 years for violations of DR 1-102(A)(3) and RPC 8.4(a)(3) (conduct involving dishonesty or misrepresentation); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 6-101(B) (neglect of a legal matter); DR 9-101(A) & RPC 1.15-1(c) (failure to deposit or maintain client funds in trust); DR 9-101(C)(3) (failure to account for client funds or property); DR 9-101(C)(4) & RPC 1.15-1(d) (failure to promptly provide client property); RPC 1.15-1(e) (failure to maintain disputed property in trust and distribute undisputed portion); RPC 1.16(d) (failure to take reasonable steps upon withdrawal); RPC 3.3(a)(1) (knowingly make a false statement of fact to a tribunal) and RPC 8.1(a)(2) (failure to respond to a lawful demand for information in a disciplinary matter).
The violations arose in connection with Kent’s conduct in five separate matters. In the first matter, Kent elected not to respond to opposing counsel’s motion for summary judgment, believing his client’s case was without merit. However, Kent failed to inform his client of his decision not to act prior to the dismissal of his client’s case.
In the second matter, Kent filed a motion and affidavit to postpone a domestic relations matter, citing a conflict with a criminal matter that did not actually exist.
In the third matter, Kent improperly deposited a bankruptcy client’s retainer in his business account and utilized the funds, believing the fee was earned upon receipt, but without a written fee agreement specifying so.
In the fourth matter, Kent failed to timely return client files for more than eight months after the client’s initial request.
In the final matter, while appearing at a civil stalking petition hearing on behalf of the respondent, Kent recognized the petitioner as a former criminal defense client and brought the potential conflict to the attention of the court and the parties. Kent thereafter determined there was not a conflict with his former client but nonetheless withdrew from his current client’s representation, believing that his client did not have a meritorious position. Kent falsely represented to the court, opposing counsel and his client that a multiple-client conflict existed and therefore was the basis for his withdrawal. Kent did nothing further to assist his client in obtaining new counsel or in otherwise preparing for the civil proceeding, such as providing the client with his file or refunding any portion of his fee. Kent then failed to respond to disciplinary counsel during its investigation.
The stipulation noted on prior discipline that Kent was twice reprimanded and twice admonished for similar violations. Kent has substantial experience in the practice of law, having been admitted in 1978.
JOHN R. PUTMAN
Pursuant to a stipulation for discipline approved by the disciplinary board on June 12, 2006, Tillamook lawyer John R. Putman was publicly reprimanded for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 6-101(B) (neglect of a legal matter).
The charges arose out of Putman’s representation of the personal representative of an estate. For a period of approximately six years, Putman performed services for the personal representative and took some steps to forward the probate of the estate. However, during this period of time, and in part because of health problems and the loss of office staff, Putman failed to file or to timely file accountings, failed to keep the court adequately apprised of the status of the estate, failed to vigorously pursue the resolution of estate tax problems and failed to close the estate in a timely fashion.
In arriving at a sanction, the stipulation took into consideration that Putman had substantial experience in the practice of law and displayed a pattern of neglect. In mitigation, the stipulation recited that Putman had no prior disciplinary record, he did not act with a dishonest or selfish motive, he has displayed a cooperative attitude toward the disciplinary proceedings and has made full and free disclosure to disciplinary counsel’s office, he has a good reputation in his community, and he is remorseful, having submitted a written apology to the court.