Oregon State Bar Bulletin — OCTOBER 2006

Discipline

Note: More than 12,740 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.

JAMES W. BRITT
OSB #96484
Eugene
Public reprimand

On Aug.17, 2006, the disciplinary board approved a stipulation for discipline reprimanding James W. Britt for violation of RPC 1.15-1(d), failure to promptly deliver to the client property that the client is entitled to receive.

Britt represented a client in a criminal case. The client was convicted of the crimes charged. In November 2005, the client sent Britt a letter in which he requested a copy of the file Britt maintained concerning the criminal case. Britt did not respond. In December 2005, the client sent Britt a second letter in which he renewed the request. Again, Britt did not respond.

In late January 2006, the bar’s Client Assistance Office received a complaint from Britt’s client. The Client Assistance Office sent a copy of the complaint to Britt and requested his explanation. Britt acknowledged receiving the client’s requests but did not consider them a priority. Britt thereafter sent a copy of the file to the client.

Britt was admitted to practice law in 1996. He did not have a prior record of discipline at the time of the conduct in this case.

GLENN FEEST
OSB #80222
Beaverton
1-year suspension

Effective Nov. 5, 2006, the Oregon Supreme Court approved a stipulation for discipline suspending Beaverton lawyer Glenn Feest from the practice of law for 1 year for violations of DR 6-101(B) and RPC 1.3 (neglect of a legal matter); DR 9-101(C)(4) and RPC 1.15-1(d) (failure to promptly provide client property upon request); RPC 1.4(a) (failure to keep a client reasonably informed) and RPC 8.1(a)(2) (failure to respond to a disciplinary authority).

The violations involved Feest’s representation of clients in three separate matters. The first was a civil property dispute where Feest initially took some action on behalf of his client, but then stopped working on the matter without notice to his client. Feest also failed to keep his client apprised of the status of the case, including failing to inform him of a proposed settlement. Feest also failed to respond to inquiries from the client and his family. Feest later did not return original documents requested by the client, nor did he initially respond to the bar’s inquiries regarding the matter.

The second matter involved Feest’s representation of a court-appointed client where he took little substantive action on the case, and did not respond to numerous attempts to communicate with him by the client and his wife until the court terminated his representation months later. Feest then failed to respond to inquires from the bar on the matter.

The third matter concerned Feest’s representation of a client in a juvenile termination proceeding and two criminal matters. In conjunction with those representations, the client provided Feest with a number of original documents and personal items from and related to her children. Feest failed to communicate with the client or respond to numerous requests from her and her family friends. He also failed to return the client’s personal items as requested. Feest then failed to respond to the bar’s inquiries on the matter.

The stipulation recited several aggravating factors including: Feest’s prior discipline for similar misconduct in 2004; a pattern of misconduct; and substantial experience in the practice of law. However, Feest’s conduct was mitigated by the fact that he did not act with a dishonest or selfish motive.

DAVID E. GROOM
OSB #78231
Portland
30-day suspension

On Aug. 28, 2006, the disciplinary board approved a stipulation for discipline suspending David E. Groom from the practice of law for 30 days for violation of DR 6-101(B) of the Code of Professional Responsibility and RPC 1.3 (neglect) and RPC 1.4 (failure to communicate) of the Rules of Professional Conduct.

Groom was appointed to represent several clients on appeal of trial court decisions denying their petitions for post-conviction relief. Groom failed to promptly notify the clients that the state had filed motions for summary affirmance or provide the clients with a copy of the motions. He also failed to promptly notify the clients that the appellate court had granted the state’s motions or provide the clients with a copy of the court’s decisions. During the representation, Groom failed to keep the clients reasonably informed about the status of their appeals and failed to provide the clients with explanations reasonably necessary to permit them to make informed decisions regarding the representation. He also failed to timely file petitions for review of the decisions granting the state’s motions for summary affirmance. In each of the cases, the state supreme court ultimately denied the clients’ petitions for review.

Groom was admitted to practice in Oregon in 1978. He had no prior record of discipline.

MARY W. JOHNSON
OSB #84384
Oregon City
30-day suspension

Effective Sept. 15, 2006, Oregon City lawyer Mary W. Johnson was suspended from the practice of law for 30 days pursuant to a disciplinary board opinion finding that Johnson practiced law during an earlier period when she was suspended, in violation of DR 3-101(B) (practicing in violation of professional regulations) and ORS 9.160 (law practice limited to active bar members).

Johnson was suspended in 2004 for disciplinary reasons. In re Johnson, 18 DB Rptr 181 (2004). When the term of her suspension expired, she resumed practicing law without filing the necessary reinstatement affidavit or paying the applicable reinstatement fee required by the bar rules of procedure. Johnson asserted that she did not realize the affidavit and fee had to be filed before she resumed her law practice, but the trial panel did not find that position credible under the circumstances present.

In a separate cause of complaint, the bar alleged that Johnson failed to disclose material information to a judge when she obtained an ex parte default judgment against a former client, in violation of RPC 3.3(d) (duty to disclose material information in an ex parte matter) and RPC 8.4(a)(4) (conduct prejudicial to administration of justice). At the time Johnson applied for the default, opposing counsel had not filed an answer with the court within the 10 days of Johnson’s earlier demand. However, opposing counsel had prepared an answer, sent it to Johnson along with a settlement offer, and expressed an intention to file the answer with the court if the settlement was not acceptable to Johnson. Johnson did not disclose these facts to the judge when she applied for the ex parte default, based on her belief that only information germane to the narrow issues under the default rule, ORCP 69A, needed to be disclosed. The trial panel opined that Johnson’s conduct may have been sharp practice, but that the bar had not proven it amounted to violations of the disciplinary rules alleged.

STEVEN B. JOHNSON
OSB #94099
Oahu, Hawaii
90-day suspension

Effective Sept. 30, 2006, the disciplinary board approved a stipulation for discipline suspending former Medford attorney, Steven B. Johnson, from the practice of law for 90 days for various violations in connection with Johnson’s representation in four separate matters.

In the first matter, Johnson was hired by a client to defend a number of criminal charges for a flat fee, but without a written fee agreement. Johnson did not deposit the client’s money in trust or maintain it there until earned and also did not properly account to the client until after the initiation of the bar complaint, in violation of DR 9-101(A) (failure to deposit or maintain client funds in trust) and DR 9-101(C)(3) (failure to account for client funds).

Similarly, in the second matter, Johnson failed to appropriately deposit "flat fee" funds into trust and did not timely or properly account to the clients for those funds. Johnson also represented these married clients in connection with criminal charges alleged against each of them when their interests were in actual or likely conflict (DR 5-105(E) (current client conflict of interest)). Johnson then failed to respond to the disciplinary counsel’s inquiries related to the matter in violation of RPC 8.1(a)(2) (failure to respond to a disciplinary authority).

In the third matter, Johnson agreed to pay the fees and costs of a criminal client from the flat fee already paid to him by the client. However, Johnson thereafter did not respond to the client’s attempts to communicate with him or pay all of the sums owed by the client until after the client was sent to collections by the state and initiated a bar complaint against Johnson. This conduct violated RPC 1.3 (neglect of a legal matter) and RPC 1.4(a) (failure to keep a client reasonably informed about the status of a matter).

In the final matter, Johnson undertook to represent an elderly client in a civil action for abuse and neglect against her care facility, but then failed to adequately attend to the case in violation of DR 6-101(B) (neglect of a legal matter), including failing to properly serve the defendant, resulting in a dismissal of her case. Throughout Johnson’s representation, he also failed to regularly or adequately communicate with her and failed to notify her of his imminent move out of state in violation of RPC 1.4(a) & (b) (failure to communicate with client sufficient to allow the client to make informed decisions).

The stipulation recited a number of aggravating factors, including a pattern of misconduct, multiple offenses and substantial experience in the practice of law. Johnson was admitted in Oregon in 1994. The sanction also noted in mitigation that Johnson had no prior record of discipline; an absence of dishonest motive, personal problems and remorse.

NAME WITHHELD
Dismissal

On July 7, 2006, the Oregon Supreme Court dismissed a formal complaint alleging that a lawyer had violated DR 1-102(A)(3) (conduct involving misrepresentation) and DR 7-110(B)(3) (ex parte communication with a judge or official before whom a proceeding was pending).

The court concluded that the lawyer’s communication with an arbitrator was not "on the merits" of a pending arbitration and, therefore, was not an improper ex parte contact. A majority of the court also found that the record of the case did not prove clearly and convincingly that the lawyer made a knowing misrepresentation when he suggested to opposing counsel that the arbitrator had ruled favorably on a matter. The majority determined that the lawyer’s statement was ambiguous and therefore dismissed the misrepresentation charge. Three members of the court joined in a dissenting opinion concerning the latter charge.

LAUREN J. PAULSON
OSB # 73232
Aloha
6-month suspension

Effective Oct. 15, 2006, the Oregon Supreme Court suspended Aloha attorney, Lauren J. Paulson, from the practice of law for six months for violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice).

The disciplinary action arose out of Paulson’s representation of a retired couple who had encountered problems with the installation of their new modular home. Although Paulson knew that the clients’ concerns related to delays in the installation and the quality of the contractor’s work, he encouraged the couple to sue their mortgage broker and lender for failing to disclose certain terms of credit for their construction loan. Neither the mortgage broker nor the lender had caused the delays or faults in the installation.

Although it was unclear from the outset how these defendants’ alleged failures to make proper disclosures caused the clients to suffer actual injury, Paulson filed a complaint that claimed – without explanation – that those defendants were liable to the clients for hundreds of thousands of dollars in damages. Over the course of the litigation, opposing counsel asked Paulson numerous times to explain and quantify these damages and to consider settlement. Paulson refused to cooperate with these requests, even after being ordered to do so by the trial court.

Paulson also failed to keep his clients informed that their case was being decimated by opposing counsel’s successful motions for partial summary judgment. By the time the clients appeared in court for their trial date, they believed that they were going to try their case to a jury. Paulson had not told them that only one small statutory claim had survived the summary judgment motions. The hearing resulted in the dismissal of the clients’ remaining claims. A subsequent hearing resulting in the court awarding attorneys fees against the clients in the amount of almost $62,000.00. The clients had been unaware that they were at risk of having judgment imposed against them for statutory attorneys fees. The attorney fee award forced the clients to file bankruptcy.

Paulson persuaded the clients to proceed with an appeal. However, the clients’ bankruptcy trustee determined that the appeal was not feasible because the bankruptcy estate lacked the necessary funds to pursue it. The clients told the bankruptcy trustee that they wanted to settle the appeal and the bankruptcy trustee accepted a monetary offer from opposing counsel to do so. When Paulson learned of the settlement, and without contacting his clients or their bankruptcy attorney, Paulson filed an objection to the settlement. He identified himself in the pleading as the clients’ attorney, even though he was not representing them in the bankruptcy proceeding. After learning of Paulson’s objection, the clients’ bankruptcy attorney informed Paulson that his objection was contrary to the clients’ wishes and that he should withdraw it immediately. However, Paulson continued to pursue the objection for several weeks even after the clients reiterated their desire that he stop.

The Oregon Supreme Court found that Paulson violated DR 1-102(A)(4) by: failing to cooperate with discovery efforts aimed at getting him to articulate his clients’ claimed damages; failing to consider settlement seriously and to advise the clients of possible weaknesses in their case; refusing to comply with trial court orders that he provide information regarding his clients’ claimed damages; failing to inform his clients that they were at serious risk of having a judgment imposed against them for statutory attorneys fees; failing to attempt to protect his clients from being held liable for attorneys fees, instead focusing his efforts on attacking the court for what were – in his opinion – unfavorable rulings; failing to appear at the attorney fee hearing at which the court ordered his clients to pay more than $61,000.00; repeatedly making decisions that placed his clients in increasingly vulnerable legal and financial positions and by ignoring and violating procedural rules so as to make the litigation more complicated, protracted and expensive.

In its sanction analysis, the state supreme court noted that Paulson had brought claims that lacked merit and continued to pursue them long after it would have been apparent to any reasonable lawyer that the claims were exceedingly weak and that it was not in his clients’ best interests to pursue them. By filing the unwanted objections in the clients’ bankruptcy proceeding, Paulson also violated a duty to the legal system and to the profession to avoid interfering with a legal proceeding. Paulson’s misconduct, which the court found was knowing, caused his clients to suffer tens of thousands of dollars in damages and forced them into bankruptcy. Given the aggravating factors in the case, the court found that Paulson should be suspended for six months.

Paulson was admitted to practice in Oregon in 1973. He had a prior record of discipline.

M. ELLIOTT LYNN
OSB #76228
Bend
Form B resignation

Effective August 15, 2006, the Oregon Supreme Court accepted the Form B resignation of Bend lawyer M. Elliott Lynn. At the time of resignation a formal complaint was pending alleging that Lynn: engaged in criminal conduct that reflected adversely on his honesty; engaged in conduct involving dishonesty and misrepresentation; engaged in conduct prejudicial to the administration of justice; engaged in a self-interest conflict of interest; entered into a business transaction with a client; engaged in a current client conflict of interest; failed to provide competent representation; failed to deposit and maintain client funds in a lawyer trust account and failed to maintain and preserve lawyer trust account records, in violation of DR 1-102(A)(2), DR 1-102(A)(3), DR 1-102(A)(4), DR 5-101(A), DR 5-104(A), DR 5-105(E), DR 6-101(A), DR 9-101(A) and DR 9-101(C)(3). There were also allegations that Lynn failed to respond fully to disciplinary counsel’s inquiries in violation of RPC 8.1(a)(2).

Lynn was admitted to the practice in 1976. His resignation recites that all client files and client records have been placed in the custody of Samuel A. Hall, Jr.

BENJAMIN E. FREUDENBERG
OSB #77182
Grants Pass
30-day suspension

Effective Oct. 16, 2006, the disciplinary board approved a stipulation for discipline suspending Grants Pass lawyer Benjamin E. Freudenberg for 30 days for violating RPC 1.7(a) (current client conflict of interest) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

Freudenberg was retained by a son on behalf of his parents to deal with estate planning and Medicaid matters. At the time, the son’s mother was living in a long term care facility and the son’s father was spending or anticipated spending a considerable amount of the couple’s monthly income paying for the mother’s care. Freudenberg believed that he only undertook to represent father and did not believe mother was a client. However, Freudenberg failed to inform the son of his belief, and the son, on his mother’s behalf, had a reasonable expectation that Freudenberg was also representing the mother in estate planning and Medicaid matters.

Freudenberg, on the father’s behalf, prepared and filed a petition for support of spouse and transfer of assets, pursuant to ORS 108.110. In the petition, Freudenberg sought to transfer mother’s interest in some marital assets to the father and to require the mother to make monthly support payments to the father. With regard to the petition, the interests of the mother and father were adverse, and Freudenberg’s representation of both of them in estate planning and Medicaid matters resulted in an actual conflict of interest.

Freudenberg then prepared a stipulated judgment regarding the support petition. The son, as his mother’s purported guardian ad litem, approved and signed the last page of the stipulated judgment. After the son signed the stipulated judgment, Freudenberg made numerous changes to it at the behest of the State of Oregon. Freudenberg then removed the last page of the original stipulated judgment that had been approved and signed by the son and attached it to the revised stipulated judgment which the State of Oregon had approved.

Thereafter, Freudenberg appeared ex parte and presented the revised stipulated judgment to the court for its approval. Freudenberg failed to inform the court that there had been changes to the stipulated judgment after the son had signed it and failed to inform the court that he had removed the last page of the original stipulated judgment and attached it to the stipulated judgment he was presenting to the court for its approval.


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