Oregon State Bar Bulletin — APRIL 2007
Discipline

Note: More than 12,962 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.

Michael G. Balocca
OSB #83016
Ashland
90-day suspension

On January 19, 2007, the supreme court filed an opinion suspending Michael G. Balocca from the practice of law for 90 days for violation of DR 2-106(A) (excessive fee); DR 2-110(A)(3) (failure to promptly deliver unearned fee on termination of employment); DR 9-101(A) (failure to deposit client funds in trust); DR 5-105(C)(2) (former client conflict); and DR 9-101(C)(3) (failure to account for client funds). The suspension was effective on Feb. 19, 2007.

A former client of Balocca referred her friend to Balocca concerning a bankruptcy matter. Balocca met with and obtained certain financial and personal information from the new client. Balocca agreed to handle the case for a flat fee plus the filing fee paid in advance. The client paid more than half of the fee in installments. Balocca did not deposit any of the funds in a lawyer trust account. He did not do any substantive work or communicate with the client concerning the bankruptcy case after the initial consultation. The client did not pursue the matter and Balocca closed his file. Balocca did not account for the funds paid or return any of them to the client.

Later, the former client who referred the bankruptcy client to Balocca consulted Balocca concerning a paternity matter. The former client asserted that the bankruptcy client was the father of her child. Balocca undertook to represent her against the former bankruptcy client without obtaining the former bankruptcy client’s consent after full disclosure. The court concluded that Balocca had obtained confidential information from the former bankruptcy client the use of which would or would likely inflict injury or damage to the former bankruptcy client.

Balocca was admitted to practice in Oregon in 1983. He had no prior record of formal discipline, but had previously been admonished for similar misconduct involving his handling of client funds.

Daniel J. Bertak
OSB #93212
Eugene
4-year suspension

Effective Jan. 29, 2007, a trial panel of the disciplinary board suspended Eugene lawyer Daniel J. Bertak for four years for violation of RPC 1.3 (neglect of a legal matter); RPC 1.15-1(c) (failure to deposit client funds in trust); RPC 1.15-1(d) (failure to promptly deliver client property; RPC 1.16 (d) (failure to take steps to protect a client’s interest); RPC 5.5(a) (practice of law in violation of the regulation of the legal professional); RPC 8.1(a)(1) (false statement to the bar); RPC 8.1(a)(2) (failure to respond to the bar); RPC 8.4(a)(3) (conduct involving dishonesty or misrepresentation); RPC 8.4(a)(4) (conduct prejudicial to the administration of justice); ORS 9.160 (unlawful practice of law); and DR 9-101(A) (trust account violations) in four client matters.

In one client matter, Bertak continued to practice law after he had been suspended for failure to pay his bar membership dues and PLF assessment and failed to disclose his resultant suspension to his client. In a court appearance on behalf of this client, Bertak failed to advise the court that he was suspended. Then, after Bertak was reinstated, he failed to appear at a number of hearings on behalf of his client and was found in contempt of court for failing to do so. Bertak failed to respond to disciplinary counsel’s inquiries about his conduct, failed to produce subpoenaed documents and made false statements to an LPRC investigator.

In a second client matter, Bertak undertook to represent a client in a legal malpractice matter, did nothing to advance his client’s claim and misrepresented the status of the case to his client. When the client terminated Bertak’s services and requested the return of her file, Bertak did not return the file and did not take any other steps to protect his client’s interests. When the bar inquired about his conduct, Bertak failed to produce documents that had been subpoenaed by the LPRC.

In a third client matter, Bertak accepted a retainer and failed to deposit it into his trust account. Thereafter, Bertak neglected the client’s matter, failed to return the client’s file as requested and failed to render an accounting regarding the client’s retainer. Bertak also failed to respond to inquiries from disciplinary counsel’s office and failed to produce documents subpoenaed by the LPRC.

In a fourth client matter, Bertak accepted a retainer in a criminal defense matter but did not deposit the retainer into his lawyer trust account. Thereafter, Bertak neglected the criminal matter and failed to file a civil suit on behalf of the client. He misrepresented the status of the civil suit to his client and failed to refund any portion of the client’s retainer or promptly return the documents the client requested. Bertak then failed to respond to disciplinary counsel’s office.

In determining an appropriate sanction, the trial panel considered that Bertak had no prior disciplinary record.

Steven W. Black
OSB #78145
Corvallis
1-year suspension

Effective Jan. 9, 2007, a trial panel of the disciplinary board suspended Corvallis lawyer Steven Black for one year for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103(C) (failure to cooperate with the bar); and DR 6-101(A) (lack of competence) arising out of the two client matters.

In the first client matter, the trial panel found that Black had made misleading  responses to disciplinary counsel’s office concerning his representation of his client.

In the second client matter, Black undertook to defend a client in criminal proceedings. The client was not a U.S. citizen, but had been in the United States since he was a small child. Because of his immigration status, the client faced deportation if convicted of certain felonies. Black was not familiar with the immigration laws, did no research into the immigration consequences of a plea agreement and advised his client to plead guilty to a felony. The client’s plea agreement resulted in his deportation to Korea, where he had no relatives or job, and could not speak the language. The trial panel found that Black’s representation of this client lacked competence.

In considering the sanction to be imposed, the trial panel considered that Black had a prior disciplinary record, had engaged in a pattern of misconduct involving multiple offenses and had substantial experience in the practice of law. In mitigation, the trial panel considered Black’s personal or emotional problems, his efforts to rectify the consequences of his misconduct and remorse.

Eric M. Cumfer
OSB #94187
Salem
2-year suspension

Effective Jan. 22, 2007, Salem lawyer Eric M. Cumfer was suspended for two years for violations of DR 1-102(A)(3) (misrepresentation); DR 2-110(A)(1), (2), (3) (improper withdrawal); DR 7-101(A)(1) (failure to advance client’s objectives); DR 7-101(A)(2) (failure to carry out a contract of employment); RPC 1.15-1(d) (failure to promptly deliver client funds); and RPC 8.1(a)(2) (failure to respond to disciplinary authorities).

A client retained Cumfer to represent her interests concerning an appeal of her convictions of felony crimes. He was given a retainer for the services to be performed. In the first few months, Cumfer performed some services for the client. He also requested extensions of time to file the appellant’s brief. Thereafter, Cumfer took no action and made a conscious decision not to pursue the matter.

Over a lengthy period of time, Cumfer failed to communicate with the client. He did not keep her reasonably informed about the status of her appeal or provide explanations reasonably necessary to permit her to make informed decisions regarding the representation. On the few occasions the client or her father spoke with Cumfer, Cumfer expressed or implied that he was working on the case when he was not. He did not tell them that the appeal had been dismissed.

Cumfer constructively withdrew from the representation without notice and without taking reasonable steps to avoid foreseeable prejudice to the client’s rights. Cumfer also failed to deliver all papers and property or return the unused portion of the retainer.

During the investigation of Cumfer’s conduct, Cumfer failed to respond to
the bar.

Cumfer was admitted to practice in Oregon in 1994. He had a prior record of formal discipline.

Richard T. Perry
OSB #82103
Cornelius
6-month suspension

On Feb. 18, 2007, an opinion of a trial panel of the disciplinary board became effective, suspending former Hillsboro lawyer Richard T. Perry for six months beginning April 25, 2007, consecutive to Perry’s current 97-day suspension in another matter, for violations of RPC 1.3 (neglect); RPC 1.4(a) (failure to adequately communicate with a client) RPC 1.15-1(d) (failure to promptly deliver client property); and RPC 8.1(a)(2) (failure to respond to the bar).

Perry agreed to represent a client in a maritime injury case. He received materials from the client, but then failed to take any action or even communicate with the client for several months. Thereafter, the client sent a letter to Perry requesting some action or the return of his file materials. Perry did neither. Perry then did not respond to the bar’s inquiries on the matter.

In suspending Perry for six months, the trial panel noted the absence of mitigating factors and the presence of several aggravating ones, including a pattern of misconduct, multiple offenses and substantial experience in the practice of law. Perry was admitted to practice in 1982.

Christopher K. Skagen
OSB #91102
Portland
1-year suspension

On Dec. 21, 2006, the Oregon Supreme Court filed an opinion suspending former McMinnville lawyer Christopher K. Skagen from the practice of law for one year for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103 (failure to cooperate); DR 9-101(A) (failure to maintain client funds in trust); DR 9-101(A) (failure to label account as "lawyer trust account"); DR 9-101(C)(3) (failure to maintain complete records and failure to account for client funds); and DR 9-101(D) (failure to maintain an interest bearing trust account). The suspension was effective Feb. 19, 2007.

A client retained Skagen to handle a dissolution of marriage matter. She paid a retainer for those services and an advance for costs. Although Skagen represented that he would bill monthly, he did not do so. The client terminated the lawyer-client relationship and asked Skagen to provide a statement accounting for his time and her funds. Skagen provided a billing statement in which he asserted that the client owed him funds in addition to the amount previously paid. The client disputed Skagen’s claims that he had provided certain services as well as the amount claimed. Skagen did not account for costs incurred or the balance of the client’s cost advance. Skagen did not respond to the client’s requests for explanation.

During the investigation of Skagen’s conduct, it was discovered that his lawyer trust account was not an interest bearing account; the account was not labeled as a "lawyer trust account"; and that he had not maintained the balance of the client’s cost advance in his trust account.

Skagen failed to provide complete and timely responses to the bar’s requests during the investigation of his conduct. During the formal proceeding, Skagen failed to comply with the bar’s lawful requests for discovery.

Skagen was admitted to practice in Oregon in 1991. He did not have a prior record of formal discipline.

William Redden
OSB #02435
Portland
60-day suspension

On Feb. 23, 2007, the Oregon Supreme Court issued an opinion suspending Portland lawyer William Redden from the practice of law for 60 days for neglecting a legal matter in violation of DR 6-101(B).

Redden undertook to represent a client to appeal a determination made by a hearings officer that the client owed his former wife over $10,000 in child support arrearages. Redden filed a request for a court hearing. Shortly thereafter, the client and his former wife agreed to stipulate to a lesser amount in arrearages and Redden arranged for the court hearing to be taken off the docket. Redden drafted a stipulation to reflect the parties’ agreement, but failed to have the former wife sign it and did not submit the stipulation to the court. In fact, Redden took no action in the matter over a period of 21 months, at which point the client complained to the bar.

Redden conceded that his conduct amounted to neglect of a legal matter, but contested the 120-day suspension imposed by the trial panel. The court reviewed prior case law and determined that a 60-day suspension was a sufficient sanction. The suspension commences in late April 2007.

Neil J. Driscoll
OSB #78187
Happy Valley
60-day suspension

Pursuant to a stipulation for discipline approved by the disciplinary board on Feb. 26, 2007, Happy Valley lawyer Neil J. Driscoll was suspended for 60 days, effective March 1, 2007, for violation of RPC 3.3(d) (failure to fully inform the court in an ex parte matter); RPC 3.5(b) (unauthorized ex parte communication); RPC 8.4(a)(3) (conduct involving misrepresentation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

The charges arose out of Driscoll’s representation of a client in a personal injury matter. After Driscoll filed a lawsuit, the defendant retained counsel. Driscoll later filed and served a notice of intent to take a default upon opposing counsel. Thereafter, although opposing counsel did not file an answer, he participated actively in the litigation, exchanging discovery requests with Driscoll, deposing the parties and conferring about the defendant’s ORCP Rule 21 motions. Opposing counsel also served Driscoll with the Rule 21 motions, and Driscoll filed objections.

Opposing counsel’s motions did not reach the court, and the court ultimately dismissed the lawsuit for want of prosecution. Driscoll then moved to reinstate the case, with notice to counsel, but did not notify opposing counsel of the court’s action on the motion. Five days later, Driscoll appeared in court ex parte and moved for an order of default and entry of a default judgment. In both his affidavit in support of the motion and his oral representations to the court, Driscoll made misleading statements about whether the defendant was represented and failed to disclose that opposing counsel had, in fact, been actively participating in the litigation.

In arriving at a sanction, the stipulation recited Driscoll’s substantial experience in the practice of law, the absence of a prior disciplinary record and his full and free disclosure to disciplinary counsel’s office. The stipulation further recited that at the time of the conduct, Driscoll was disabled by an advanced stage illness that affected his cognitive abilities, memory and concentration, and contributed to his conduct.


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