Oregon State Bar Bulletin ó MAY 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.

RANDOLPH J. STEVENS
OSB #81011
Portland
Public reprimand

Effective March 23, 2006, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland attorney Randolph Stevens for violations of DR 6-101(A) (lack of preparation and competence) and DR 6-101(B) (neglect of a legal matter).The violations resulted from Stevensí representation of a conservator who was handling her motherís estate. Stevens failed to timely file two of the annual status reports on the real property of the estate, resulting in the setting of a show cause hearing by the court on one occasion.

When it was later decided that Stevensí client would step down as conservator, Stevens prepared and submitted a final accounting that failed to provide all of the information required in the format required by statute or court rules and failed to include all of the necessary documentation required by statute or court rules, resulting in objections from the protected person.

Thereafter, the court entered a stipulated order that withdrew the final accounting, required an internal audit of the estate within a month, and required Stevens to file a final accounting within a month after that.

Due to delays in the internal audit process caused by Stevens, his client and another attorney in connection with the estate, Stevens did not timely file any form of accounting. Stevens ultimately prepared and submitted a supplemental accounting that again failed to provide all of the information required in the format required by statute or court rules and failed to include all of the necessary documentation. This accounting was subsequently withdrawn by replacement counsel.

The stipulation reflected that Stevensí sanction was aggravated because it involved multiple rule violations and by the fact that Stevens is an experienced attorney, having been admitted to practice in Oregon in 1981. Stevensí sanction was mitigated by his lack of prior discipline, his lack of dishonest or selfish motive, his good faith effort to rectify the consequences of his conduct by waiving his fees and his cooperation in the disciplinary process.

CLAYTON C. PATRICK
OSB #77298
Portland
30-day suspension

Effective May 25, 2006, the disciplinary board approved a stipulation for discipline suspending Portland lawyer Clayton Patrick from the practice of law for 30 days for violations of DR 5-101(A) (self interest conflict) and DR 5-105(E) (multiple client conflict). The violations resulted from Patrickís facilitation of loans from a long-time friend to two separate clients, and his performing a number of legal services on behalf of each of the participants (DR 5-105(E)). Patrick also guaranteed one of the loans on behalf of his client, without initially recognizing the need to obtain informed consent to the personal interest conflict raised by such a guarantee (DR 5-101(A)).

In aggravation, the stipulation cited multiple offenses and substantial experience in the practice of law. In mitigation, Patrick had no prior record of discipline, did not act dishonestly, cooperated in the disciplinary proceedings and expressed remorse for his conduct.

PATRICK J. STIMAC
OSB #81388
Newport
Form B resignation

Effective April 4, 2006, the Oregon Supreme Court accepted the Form B resignation of Patrick J. Stimac. At the time of the resignation, a formal disciplinary proceeding was pending against Stimac in connection with three client matters and an overdraft on his lawyer trust account. The complaint alleged multiple violations, including: DR 1-102(A)(3) and RPC 8.4(a)(3) (conduct involving dishonesty or misrepresentation); DR 2-106(A) (clearly excessive fee); DR 6-101(B) and RPC 1.3 (neglect of a legal matter); RPC 1.4(a) (failure to keep a client reasonably informed); DR 9-101(A) and RPC 1.15-1(a) and (c) (failure to deposit or maintain client funds in trust); DR 9-101(C)(3) and RPC 1.15-1(a) (failure to keep complete records and account for client funds); RPC 8.1(a)(1) (false statements in a disciplinary matter) and RPC 8.1(a)(2) (failure to respond to disciplinary inquiries).

Stimac was also under investigation in connection with other client matters concerning alleged violations of: DR 1-102(A)(2) and RPC 8.4(a)(2) (criminal conduct); DR 1-102(A)(3) and RPC 8.4(a)(3); DR 1-102(A)(4) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice); DR 2-106(A); DR 6-101(B); DR 7-101(A)(2) (failing to carry out a contract of employment); DR 9-101(A), DR 9-101(C)(3); DR 9-101(C)(4) (failure to promptly return client property); RPC 1.3; RPC 1.4(a); RPC 1.15-1(a); RPC 1.15-1(c); RPC 4.1(a) (false statement of material fact or law); and RPC 8.1(a)(2).

Stimac was admitted to practice in 1981. The court ordered that Stimacís client files be delivered to Pridgeon & Associates in Newport.

NAME WITHHELD
Dismissal

On Feb. 16, 2006, the Oregon Supreme Court dismissed a disciplinary action brought against a county prosecutor.

The bar had charged the prosecutor with violating DR 7-106(C)(1) (prohibiting lawyers from referring to matters that will not be supported by admissible evidence) in connection with his prosecution of a defendant in a case alleging the sexual abuse of a minor.

In that case, the defense attorney called two character witnesses who offered their opinion regarding the defendantís character for sexual propriety. The prosecutor cross examined these witnesses with "did you know?" type questions that suggested that the defendant was having a secret correspondence with a 14 year old girl, that the defendant had come home with "hickeys" on his stomach, and that the defendant had been involved in an adulterous relationship.

The bar alleged that the prosecutor had no reasonable basis to believe that any of the information suggested by his questions was true. He had received this information from the defendantís former sister-in-law, and was aware that she had received it from defendantís ex-wife. The prosecutor knew when he asked the questions that 1) the person from whom he received the information (the sister-in-law) had no personal knowledge of the facts; 2) that the purported source of the information (defendantís ex-wife) denied under oath ever making the statements attributed to her and 3) the ex-wife denied under oath that the information was true. Before he began his questioning, the prosecutor undertook no independent investigation to determine whether this information could be corroborated.

The trial panel found that the prosecutor had asked these cross-examination questions without any reasonable basis for believing such conduct had actually occurred, in violation of OEC 405(1). The trial panel found that the prosecutor had therefore violated DR 7-106(C)(1).

The Supreme Court reversed, holding that even if the prosecutor had violated OEC 405(1) because his questions lacked a reasonable basis for belief, he did not violate DR 7-106(C)(1) because the two rules do not set out the same standard and in fact address different concerns. Because of this analysis, the court did not reach the issue of whether the prosecutorís questions were improper under OEC 405(1) for lack of a good faith basis. It was sufficient for the court to hold that the evidence in this case failed to establish a violation of the disciplinary rule.

RUTH A. CHERRY
OSB #91236
Klamath Falls
30 day suspension

The disciplinary board approved a stipulation for discipline suspending Ruth Cherry from the practice of law for 30 days for violation of DR 2-110 (A)(2) (improper withdrawal), DR 5-101(A) (lawyer self-interest conflict) and DR 7-101(A)(1) (failure to seek the lawful objectives of the lawyerís client). The suspension was effective April 6, 2006.

Cherryís sister died as a result of injuries sustained in a motor vehicle accident. She was survived by a minor daughter. Another family member took physical custody of the child. Prior to that time, Cherry was of the belief that that family member lacked parenting skills and had a problem with alcohol. Nevertheless, she agreed to represent the family member and to seek her appointment as the childís guardian and conservator. Cherry filed a petition for the family memberís appointment, which the court thereafter allowed.

Some months later, while continuing to represent the client and without notice to her, Cherry encouraged other family members to intervene. Cherry failed to act on her clientís behalf and was sympathetic to those persons who sought her clientís removal as the childís guardian and conservator.

Cherry stipulated that the exercise of her professional judgment on behalf of the client was or reasonably may have been affected by her own personal interests. Cherry failed to obtain her clientís consent to her representation after full disclosure. Cherry also engaged in conduct that was contrary to her clientís wishes and objectives, and intentionally failed to seek the lawful objectives of her client.

Cherry eventually filed a motion to allow her to withdraw from the representation of the client, but failed to take reasonable steps to avoid foreseeable prejudice to the clientís rights, including giving due notice and allowing the client time for the employment of other counsel.

Cherry was admitted to practice in Oregon 1991. She had no prior record of discipline.


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