Oregon State Bar Bulletin — JANUARY 2008

Bar Actions

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.

MARSHA MCDONOUGH
OSB #890851
St. Helens
Public reprimand

On Nov. 5, 2007, the disciplinary board approved a stipulation for discipline reprimanding St. Helens lawyer Marsha McDonough for violating RPC 1.1 (failure to provide competent representation), RPC 1.3 (neglect of a legal matter) and RPC 1.4(a) (failure to communicate with a client).

Between April 2004, and April 2006, McDonough represented a client in a misdemeanor assault charge. McDonough failed to pursue a defense and failed to possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, in that she did not retain the services of an investigator, made little or no effort to contact potential witnesses, and did not obtain a copy of a videotape taken of the incident.

In November 2004, the client was indicted on multiple counts of felony robbery and burglary. In April 2005, the client, who had left the state a few months earlier, sent a letter to McDonough seeking information and instructing her on how he wanted her to proceed in the assault matter. The client also asked McDonough questions about the felony matter.

On May 3, 2005, McDonough was appointed to represent the client in the felony matter. McDonough failed to respond to the client’s April 2005 letter and, for a number of months, failed to keep her client reasonably informed about the status of his legal matters.

McDonough represented the client in the felony matter until April 2006. During those 11 months, McDonough failed to pursue a defense and failed to possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, in that she did not retain the services of an investigator and otherwise made little or no effort to investigate the matter.



KATHLEEN KELLY MOORE
OSB #790884
Portland
60-day suspension

On Oct. 29, 2007, the disciplinary board approved a stipulation, effective Nov. 1, 2007, suspending Portland lawyer Kathleen Kelly Moore for 60 days for violation of DR 2-106 (A) (entering into, charging and collecting a clearly excessive fee).

Moore was retained by a client in a pending dissolution-of-marriage proceeding. In relevant part, the written fee agreement provided for the client to pay and for Moore to collect a lump sum in initial compensation, which was in addition to Moore’s hourly fees as incurred. At the time Moore entered into, charged and collected the initial compensation, she had not performed any legal services on the client’s behalf for which she had not previously billed and collected.

Six weeks before a scheduled trial date, Moore charged to and collected from the client an additional sum per month, assessed retroactively for five months. The additional charges constituted the monthly overhead costs incurred by Moore to operate her law office. The client agreed in writing to the retroactive charges. The dissolution-of-marriage proceeding went to trial, and a judgment was eventually entered.

Sixteen months later, the client retained Moore to represent her in post dissolution matters and to defend against a motion to change custody. In relevant part, the written fee agreement provided for the client to pay Moore a preliminary fee that was in addition to Moore’s hourly fees as incurred. At the time Moore entered into the agreement for the preliminary fee she had not performed any services on the client’s behalf for which she had not previously billed and collected.

As part of the stipulated sanction in this matter, Moore was obligated to make restitution to the client.



JON G. SPRINGER
OSB #860930
Bend
Public reprimand

On Nov. 13, 2007, the disciplinary board approved a stipulation for discipline reprimanding Bend lawyer Jon G. Springer for violations of RPC 1.3 (neglect of a legal matter), RPC 1.15-1(a) (failure to deposit client funds in trust) and PRC 1.15-1(c) (failure to maintain client funds in trust until fees earned or expenses incurred).

Springer represented a client in a criminal matter pursuant to a written fee agreement that provided the client’s initial payment was a nonrefundable fee earned on receipt. The criminal matter was successfully concluded. Springer later undertook to represent the client for a flat fee in a proceeding to expunge the record of the criminal matter. There was no written fee agreement in the expungment matter that provided the fee was nonrefundable and earned on receipt. Springer negligently believed the written fee agreement in the criminal matter permitted him to treat the fee in the expungment matter as if it was earned on receipt. As a result, Springer failed to deposit the client’s flat fee into his lawyer trust account and maintain it there until it was earned or expenses were incurred. Additionally, for a period of eight months after undertaking the expungment, Springer failed to take any action on the matter, failed to adequately communicate with the client about the status of the matter and failed to respond to the client’s efforts to contact him about the matter.

In arriving at sanction, the stipulation noted a number of mitigating factors including Springer’s lack of a prior disciplinary history and his efforts to rectify the consequences of his misconduct.



KEITH G. JORDAN
OSB #030065
Portland
270-days suspension (reciprocal)

On Nov. 1, 2007, the Oregon Supreme Court suspended Portland lawyer Keith G. Jordan from the practice of law in Oregon for 270-days, effective Jan.1, 2008. This sanction was imposed on a reciprocal basis for misconduct committed by Jordan in California.

Jordan stipulated in California to disciplinary violations with respect to several complaints made against him in the conduct of his immigration practice. Jordan stipulated that in seven of the matters, he neglected his clients’ cases; in one matter, he charged a clearly excessive fee; in six matters, he failed to communicate with his clients; and in one matter, he engaged in conduct prejudicial to the administration of justice.

As a result of Jordan’s misconduct, several of his clients faced deportation. Per the stipulation, California imposed a two-year suspension, which was stayed subject to probationary conditions that included a 9-month actual suspension. Other probationary conditions required Jordan to take and pass the Multi-State Professional Responsibility Examination and to make restitution to his former clients in an amount totaling $8,200.00 (plus interest).

Jordan was admitted to practice in Oregon in 2003. He had no prior record of discipline.



KEVIN L. CATHCART
OSB #912337
Portland
Public reprimand

On Dec. 12, 2007, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland lawyer, Kevin L. Cathcart, for violating RPC 3.3 (candor toward tribunal) and RPC 8.4(a)(3) (misrepresentation).

In 2002, Cathcart undertook to represent a mother and her minor daughter in a pharmaceutical malpractice case. Cathcart filed a lawsuit on mother’s behalf and two years later filed a complaint on behalf of the minor daughter. This latter complaint stated: "At all times material herein, plaintiff (daughter) is a minor and her mother … is the duly appointed conservator for the purpose of prosecuting this action against defendant."

This statement was untrue when Cathcart made it, although he intended to make it true in the future. Before filing daughter’s complaint, Cathcart prepared a petition asking the probate court to appoint mother as daughter’s conservator. However, he then decided — in order to minimize costs — to delay filing the conservatorship petition until such time as the malpractice case was about to be tried or settled. Despite his conscious decision to postpone filing a conservatorship petition, Cathcart filed daughter’s complaint that misrepresented that mother had been appointed conservator.

Before the malpractice case concluded, Cathcart withdrew from the representation of both mother and daughter. They hired new counsel and their cases eventually settled. At that time, there was still no conservatorship in place, so defense counsel insisted that one be established. Separate counsel was retained to prepare and file the conservatorship petition. Once the conservatorship was in place, the case settled.

ORCP 27A permits a minor to appear in court either through a guardian, guardian ad litem, or conservator. By stating in daughter’s complaint that mother was already daughter’s duly appointed conservator, Cathcart knowingly misrepresented a material fact.

Cathcart was admitted to practice in Oregon in 1991. In mitigation, Cathcart had no prior disciplinary record, made full and free disclosure to the disciplinary board, and displayed a cooperative attitude toward the proceedings.

 

Applications

Reciprocity, other applicants listed
The following have applied for admission under the reciprocity, house counsel or law teacher rules. The Board of Bar Examiners requests that members examine this list and bring to the board’s attention in a signed letter any information that might influence the board in considering the moral character of any applicant for admission. Send correspondence to Admissions Director, Oregon State Board of Bar Examiners, 5200 S.W. Meadows Road, Lake Oswego, OR 97035.

Reciprocity: Mark S. Davidson, Kari Elizabeth Hathorn


Notice of reinstatement applications
The following attorneys have filed applications for reinstatement as active members of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1.

Kaarin Axelson Forester of California, OSB# 952048, has filed applications for reinstatement as active members of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1. Forester seeks reinstatement after transferring to inactive status in 1999. Also a member of the California bar, she has been employed as a deputy district attorney for Los Angeles County since 1998. Forester plans to return to Oregon and is presently seeking a position in Deschutes County.

The Rules of Procedure require the Board of Governors to conduct an investigation of BR 8.1 reinstatement applications to determine whether applicants possess the good moral character and general fitness to practice law, and that the resumption of the practice of law in this state by these applicants will not be detrimental to the administration of justice or the public interest. Any person with information relevant to this application is asked to contact promptly the OSB Regulatory Services Division, P.o. Box 1689, Lake Oswego, OR 97035; phone: (503) 620-0222, or (800) 452-8260, ext. 343.


Applicants for February 2008 bar exam
The following is a list of applicants who have registered for the February 2008 Oregon bar examination. Applicants for admission to practice law in Oregon must demonstrate that they are qualified for admission on moral character and fitness grounds. To aid the Board of Bar Examiners in its investigation of these qualifications, the following is a list of applicants who have submitted applications for the February 2008 bar exam AS OF Nov. 30, 2007. The board requests that members examine this list and bring to the board’s attention in a signed letter any information that might influence the board in considering the moral character of any applicant for admission. Send correspondence to Jon Benson, executive director, Oregon State Board of Bar Examiners, 5200 S.W. Meadows Road, Lake Oswego, OR 97035.

List of applicants is available here.


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