Oregon State Bar Bulletin ó JUNE 2006

Discipline

Note: Nearly 12,600 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.

HILDA GALAVIZ
OSB #90151
Newberg
60-day suspension

The disciplinary board approved a stipulation for discipline suspending Hilda Galaviz 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 April 20, 2006.

In September 2002, a client retained Galaviz to pursue a workersí compensation claim. The claim had previously been denied by the Workersí Compensation Board because the client had failed to timely file the claim. The client filed a notice of appeal, which was pending at the time he retained Galaviz.

In late October 2002, Galaviz filed a civil complaint for personal injury against the clientís employer. In December 2002, Galaviz caused a copy of the summons and complaint to be served on the defendant. In late February 2003, the defendantís lawyer filed a motion for change of venue and Rule 21 motions concerning the allegations contained in the complaint. Galaviz was required to file a response to the motions within 14 days. She did not file a response. In early April 2003, the court granted the defendantís motion for change of venue, but declined to rule on other motions because the case was to be transferred from Marion to Washington County upon payment of a required fee.

Between about early April 2003 and mid-December 2004, Galaviz: did not pay the fee required for transfer of the case to Washington County; did not recognize that she or her client was responsible for paying the fee; did not review the law or the courtís order to determine who was required to pay the fee for transfer of the case; did not conduct discovery concerning the her clientís case; did not communicate with defendantís counsel and did not actively pursue and protect her clientís claim and interests.

Galaviz was admitted to practice in Oregon in 1990. She had a prior record of discipline.

HARRY AINSWORTH
OSB #90461
Portland
30-day suspension
The disciplinary board approved a stipulation for discipline suspending Harry Ainsworth from the practice of law for 30 days for violation of DR 2-110(B)(2) (improper withdrawal), DR 5-101(A) (lawyer self-interest conflict) and DR 6-101(B) (neglect of a legal matter). The suspension is effective on June 1, 2006.

In about October 2002, a client retained Ainsworth to handle a dispute and to pursue claims against her former landlord. The client provided information and documents to Ainsworth concerning the dispute. In June 2003, Ainsworth reviewed the clientís file and conducted brief legal research. In late June 2003, Ainsworth drafted and filed a civil complaint. Pursuant to ORS 12.125, the clientís claims against the landlord had to be commenced within one (1) year. The landlord was not served with summons and a copy of the complaint until early October 2003, after the statute of limitations barred the clientís claims.

The landlord retained a lawyer to defend and to assert counterclaims against Ainsworthís client. Among other defenses, the landlordís lawyer asserted that Ainsworthís clientís claims were barred by the statute of limitations. In mid-November 2003, the landlordís lawyer filed an answer and counterclaims and sent a service copy thereof to Ainsworth.

Thereafter, Ainsworth did not timely respond to his clientís telephone calls and letters; did not timely provide his client with copies of written communications from the court, opposing counsel and the arbitrator; did not respond to opposing counselís inquiries; did not respond to the courtís and the arbitratorís requests; did not timely prepare and serve a response to the landlordís motion for summary judgment; did not monitor or calendar his clientís case and did not inform his client that a judgment for the landlordís costs and a prevailing party fee had been entered against her.

Ainsworth stipulated that he failed to withdraw from the representation, and that he continued the employment when the exercise of his professional judgment on behalf of his client was likely to be affected by his own interests and that he neglected the clientís legal matter.

Ainsworth was admitted to practice in Oregon in 1990. He had no prior record of discipline.

IAIN E. LEVIE
OSB #91359
Portland
Public reprimand

On April 7, 2006, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Iain E. Levie for violation of DR 9-101(C)(3) (failing to account for client property).

The charges arose out of Levieís representation of a client in litigation while he was employed by a law firm as an associate lawyer. The litigation was settled after mediation. At the time the settlement check was issued payable to the firmís trust account, however, Levie was no longer employed by the firm. Accordingly, the firm deposited the check and issued a check payable to Levieís lawyer trust account.

Although Levie deposited the settlement proceeds into his trust account and properly disbursed them, he did not maintain possession of complete records of how he had disbursed the funds. When later called upon to produce his trust account records, Levie could not do so.

In arriving at a sanction, the stipulation recited Levieís cooperation with the bar, that he had no prior disciplinary record, and that he did not act with a dishonest or selfish motive.

MATT MATTOX
OSB #90334
Oregon City
One-year suspension

On April 25, 2006, the Oregon Supreme Court approved a stipulation for discipline suspending Oregon City lawyer Matt Mattox for one year, effective May 25, 2006, for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation) and DR 1-102(A)(4) (conduct prejudicial to the administration of justice).

Mattoxís wife initiated a dissolution of marriage proceeding. Mattox was deposed in that matter on Jan. 27, 2004. During his deposition, Mattox falsely testified that he did not presently have a gambling problem and had not gambled for a number of months. At the subsequent trial, Mattox truthfully testified that he continued to have a gambling problem and that he had gambled in January 2004.

At the time Mattox gave the deposition testimony, he was impaired by a gambling addiction. Mattox subsequently obtained treatment for that addiction. In combination, Mattoxís impairment and his subsequent rehabilitation constituted significant mitigating circumstances.

DENNIS L. ODEN
OSB #92524
Klamath Falls
180-day suspension

On April 17, 2006, the disciplinary board approved a stipulation suspending Klamath Falls lawyer Dennis L. Oden from the practice of law for 180 days, effective immediately, for violating DR 1-102(A)(2) (criminal conduct reflecting adversely on a lawyerís honesty) and DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).

On the evening of Dec. 17, 2004, Oden, while driving his truck, collided with an unoccupied parked car, causing damage to it. He thereafter left his truck at the scene of the collision and walked to a nearby motel. Oden failed to locate or notify the owner of the car, in violation of ORS 811.700. A short time later, Oden called 911 Emergency Services and falsely reported that his truck had been stolen, in violation of ORS 162.375. In the meantime, law enforcement had become aware of the collision and knew that Oden owned the truck that had been left at the scene. As a result of Odenís call, police officers were dispatched to investigate. During that investigation Oden falsely represented to the police officers that his truck had been stolen and that he had not been at the scene of the collision. Shortly thereafter, Oden recanted and admitted he had been driving the truck at the time of the collision. Oden was under the influence of alcohol the night of the incident.

CALVIN P. VANCE
OSB #96122
Spokane, Wash.
Public reprimand

On May 2, 2006, the disciplinary board approved a no contest plea reprimanding Spokane, Wash. lawyer Calvin P. Vance for violating DR 2-106(A) (collecting a clearly excessive fee), DR 2-110(A)(3) (failing to promptly refund unearned fees) and DR 9-101(A) (failing to deposit client funds into trust).

In its complaint, the bar alleged the following facts: Vance undertook to represent clients in a pending lawsuit. The clients agreed to pay Vance by the hour. A year later, Vance requested that his clients provide him with a substantial retainer so that he could try the lawsuit. The clients agreed to pay Vance a fixed fee which would comprise all or part of his compensation through trial. Any compensation over the fixed fee would be paid to Vance on a contingent basis depending upon the outcome of the lawsuit. There was no written fee agreement providing that the fixed fee was non-refundable and earned upon receipt. The clients paid the fixed fee to Vance. Vance failed to deposit those funds into his lawyer trust account.

Eventually, Vance withdrew from representing the clients. At the time Vance withdrew, the lawsuit had not yet been resolved or tried. Vance failed to promptly refund the part of the fixed fee that he had not earned.

NAME WITHHELD
Dismissal

On March 6, 2006, a trial panel of the disciplinary board dismissed a formal complaint alleging that a lawyer had violated DR 4-101(B) (improperly revealing client confidences or secrets), DR 5-105(C) (current client conflict of interest) and DR 7-101(A)(3) (intentionally prejudicing or damaging a client).

The lawyer was retained by a married couple for the purpose of obtaining lawful permanent status for the husband. At the time the lawyer was retained the husband was subject to a final order of deportation. Over the course of four years, the lawyer pursued the matter, but was unsuccessful in persuading immigration officials to reopen the husbandís deportation case.

At one point, the wife informed the lawyer that she was withdrawing her support for the petition to get legal status for her husband. She told the lawyer that her husband had assaulted her a few days earlier and that she had obtained a restraining order against him. She also described incidents of alleged sexual abuse by the husband against her children, mental health problems, threats of harm against her, her children and the lawyer, and drug use by her husband during the preceding two years. Finally, the wife told the lawyer that the husband had been released from police custody and was scheduled to appear in court the following day.

The lawyer immediately disclosed the information he had obtained from wife to immigration officials and urged them to take the husband into custody. The lawyer subsequently conveyed to immigration officials new information he received from wife about the court hearing and again urged them to take husband into custody. Immigration officials then took the husband into custody.

The bar alleged that it was improper for the lawyer to reveal information he had received from the wife because they were secrets. The trial panel found that because the lawyer had a reasonable belief that the husband was going to commit a crime, the lawyer was permitted to reveal the information as provided in DR 4-101(C)(3).

The bar also alleged that the lawyer engaged in an improper conflict of interest when he contacted immigration officials. The trial panel rejected that contention, finding that the lawyer had effectively withdrawn from the representation of both clients.

Finally, the bar alleged that the lawyer intentionally prejudiced or damaged husband when he contacted immigration officials. The trial panel concluded that because there was already a warrant out for husbandís arrest, there was insufficient evidence from which to conclude that husband sustained any additional prejudice or damage as a result of the lawyerís conduct.

JAMES W. BRITT
OSB #96484
Eugene
Six-month suspension

The disciplinary board approved a stipulation for discipline suspending James W. Britt from the practice of law for six months for violations of DR 1-102(A)(3) (dishonesty or misrepresentation), DR 6-101(A) (failure to provide competent representation) and DR 5-108(B) (avoiding influence by others than the client). The suspension was effective on May 15, 2006.

Britt shared space in an office suite with a financial planner. The planner asked Britt to represent an elderly man concerning the administration of the estate of his deceased brother; to prepare amendments to the elderly manís trust adding the planner as a trustee and to prepare a power of attorney appointing the planner as the elderly manís attorney in fact. Based solely on information the planner provided to Britt, Britt prepared various documents.

Britt permitted the planner to direct the representation of the elderly man. Britt never met or spoke with his client. Britt did not determine or verify his clientís mental capacity. He did not know whether his client existed. The elderly man was not fully capable of making important decisions regarding financial investments and legal affairs, or of fully understanding the legal meaning, significance and consequences of decisions and transactions.

Using documents Britt prepared for the elderly man, the planner liquidated the elderly manís annuities. The planner also directed that funds held in the elderly manís accounts be transferred to a bank account he established in the plannerís and elderly manís name. The planner then transferred several hundred thousand dollars of the elderly manís funds from the joint bank account to a bank account in the plannerís name located in Central America.

Thereafter, the planner told Britt that the elderly man wanted to give the planner a substantial monetary gift. At the plannerís request, Britt prepared a letter in which Britt purported to verify that the planner received a monetary gift from the elderly man. Britt also represented that the elderly man was of sound mind and not acting under any restraint, undue influence or fraudulent misrepresentation; that the planner was an outstanding member of his community and that Britt had known the planner for a number of years and was a man of character. In making these and other representations, Britt knew that some of them were false and that he had no or insufficient information to make others. Britt also knew that the planner intended to use the letter by presenting it to third parties who would rely on his representations.

Britt did not intend to cause his client harm insofar as he did not act with that objective, and did not knowingly conspire with the planner to steal the elderly manís funds. The planner manipulated the elderly man and Britt. Britt prepared and delivered documents to the planner that the planner used to access the elderly manís assets.

When the plannerís activities were discovered, a guardian/conservator was appointed for the elderly man and civil claims were asserted against Britt, the annuity company and the planner. The planner was indicted and convicted of criminal conduct in federal court. Britt cooperated with federal authorities and testified against the planner. Although a substantial portion of the funds taken by the planner were reimbursed by insurance carriers, that action came at a cost to the elderly manís estate.

Britt was admitted to practice in Oregon in 1996. He had no prior record of discipline.


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