Oregon State Bar Bulletin — NOVEMBER 2007
Discipline

Note: More than 13,000 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.

GARY D. BABCOCK
OSB #610016
Salem
60-day suspension

On July 24, 2007, a trial panel issued an opinion suspending Salem lawyer Gary D. Babcock for 60 days, effective Sept. 26, 2007, for violating: DR 9-101(A) and RPC 1.15-1(a) (failing to deposit client funds in trust); DR 9-101(C)(3) (failing to render appropriate accounting of client funds) and RPC 8.1(a)(2) (failing to cooperate in a bar investigation).

Babcock undertook to represent a client in a dissolution of marriage proceeding. He received a retainer from the client but did not deposit those funds into a lawyer trust account and later failed to render an accounting to his client regarding the funds.

In connection with resolving the dissolution of marriage proceeding, Babcock received a settlement check made payable to him and his client. Babcock’s client endorsed the check and gave it to Babcock. Babcock then issued a check to the client for her share of the settlement proceeds, drawn on his business account. He did not run the funds through his lawyer trust account.

Babcock also failed to provide timely records to the bar during its investigation into his conduct.



MICHAEL BANKS
OSB #932065
Portland
7-month suspension

Effective Aug. 14, 2007, a trial panel of the disciplinary board suspended Portland lawyer Michael Banks for seven months for violating: RPC 1.2(a) (failure to consult with a client as to the means by which to pursue the objectives of representation); RPC 1.3 and DR 6-101 (neglect of a legal matter); RPC 1.4(a) (failure to keep a client reasonably informed); RPC 1.4(b) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions) and RPC 8.1(a)(2) (knowing failure to respond in a bar investigation).

In July 2003, Banks was retained by a client to represent her in a medical malpractice case. In January 2004, Banks filed a lawsuit on his client’s behalf. Trial in the matter was set for May 2005. In March 2005, Banks informed his client that he would have an in-house medical reviewer look at her case and he would contact her to discuss it. Thereafter, Banks failed to have an in-house medical reviewer look at his client’s case and failed to discuss it with her. On April 20, 2005, without notice to his client, Banks voluntarily dismissed the lawsuit. For a number of months thereafter, Banks failed to respond to his client’s inquiries about the status of her case and failed to inform his client that he had dismissed her lawsuit. In August 2005, Banks spoke with his client but failed to inform her of the dismissal. After August 2005, Banks failed to maintain adequate communications with his client. His client did not discover that her lawsuit had been dismissed until March 2006.

Banks also failed to respond to numerous inquiries from the bar’s disciplinary counsel’s office about this conduct after his client filed a complaint with the bar.



MICHAEL A. KESNER
OSB #770411
Tigard
60-day suspension

On Aug. 27, 2007, the disciplinary board approved a stipulation for discipline, effective Aug. 28, 2007, suspending Tigard lawyer Michael A. Kesner for 60 days for violating RPC 1.1 (failure to provide competent representation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

Between Oct. 7, 2005, and Oct. 14, 2005, as a result of anticipated changes in the law, Kesner filed Chapter 7 bankruptcy petitions on behalf of more than 90 clients. With regard to those petitions, Kesner did not act with the thoroughness and preparation reasonably necessary, in that many of the documents he filed were incomplete, inaccurate, inconsistent or did not comply with applicable law. The bankruptcy court issued orders directing that deficiencies in the original petitions be corrected. Thereafter, Kesner did not act with the thoroughness and preparation reasonably necessary, in that he did not timely respond to, or did not adequately or completely comply with, the orders.

In mitigation, the stipulation noted that Kesner cooperated with a lawyer who undertook to represent Kesner’s clients in early 2006. In addition, in March 2006, Kesner signed a stipulated judgment in bankruptcy court in which he agreed that he would no longer practice bankruptcy law.



WILLARD MERKEL
OSB #790852
Portland
Public reprimand

On July 9, 2007, the disciplinary board filed a decision finding that Willard Merkel violated RPC 4.1(a) (making a false statement of law or fact to a third person), and RPC 8.4(a)(3) (engaging in conduct involving dishonesty or misrepresentation that reflects adversely on a lawyer’s fitness to practice). The trial panel imposed a public reprimand for the misconduct. Merkel did not seek review of the decision by the Oregon Supreme Court.

Merkel represented a client who alleged that she had been injured in a motor vehicle accident. At the time of the accident, Merkel’s client did not have liability insurance. Merkel presented a demand to the opposing party’s insurance carrier, which consisted of economic and non-economic damages. The opposing party’s insurance carrier acknowledged Merkel’s demand and gave notice to Merkel that his client appeared to not have insurance coverage on the date of the loss/accident, and as result, general (non-economic) damages may not be owed pursuant to ORS 18.592. The insurance carrier invited Merkel to submit evidence of its obligation for general (non-economic) damages.

Thereafter, Merkel sent a letter to the insurance carrier in which he represented: "There is no such statute as ORS 18.592. The former statute was found unconstitutional (in violation of the Oregon Constitution) by the court in Lawson v Hoke, 190 Or App 92 (2003)."

Merkel’s statements were false and misleading. During 2003, legislative counsel renumbered ORS 18.592 to ORS 31.715. At the time Merkel made the representations, he knew that the statute had been renumbered and that the text of the statute was not changed. He also knew that the Court of Appeals did not find ORS 18.592(1) (renumbered ORS 31.715) unconstitutional. The court upheld its constitutionality. Merkel knew this, because he represented Lawson in the trial court and on appeal in the Court of Appeals and had read the decision before he made the representations to the insurance company’s representative.

Merkel was admitted to practice in Oregon in 1979. He had no prior record of discipline.



LINCOLN NEHRING
OSB #055455
Salt Lake City, Utah
30-day suspension

On Sept. 19, 2007, the disciplinary board approved a stipulation for discipline suspending Lincoln Nehring for 30 days, effective Sept. 22, 2007, for violations of: ORS 9.527(2) (conviction of a misdemeanor involving moral turpitude); RPC 8.4(a)(2) (criminal conduct that reflects adversely on a lawyer’s honesty, trustworthiness or fitness to practice law) and RPC 8.4(a)(3) (conduct involving dishonesty or misrepresentation).

Nehring found correspondence that suggested to him that his former girlfriend had been unfaithful during their relationship and that she had lured him into a sexual encounter that was secretly watched by a romantic rival. Emotionally distraught and angry, Nehring gathered items that belonged to the former girlfriend (a letter and a photo album) and the rival (a bicycle) and tossed them into a nearby dumpster. The items were never recovered. Although Nehring eventually admitted his conduct, he initially lied to his former girlfriend about the incident. Nehring’s conduct resulted in his conviction by plea to the crime of theft in the second degree.

In arriving at sanction, the stipulation noted that Nehring acted under the influence of acute emotional turmoil, did not personally benefit from the theft, had no prior disciplinary history, showed a cooperative attitude toward disciplinary proceedings, received other penalties in connection with his criminal conviction and showed remorse.


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