Oregon State Bar Bulletin — MAY 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.

TIMOTHY P. DUNN
OSB #790330
Aloha
Disbarred

Effective Feb. 22, 2008, a trial panel disbarred Aloha lawyer Timothy P. Dunn from the practice of law for violating numerous disciplinary rules in 16 matters.

In 10 of the matters Dunn failed to pursue his clients’ objectives and failed to maintain adequate communications with them, in violation of DR 6-101(B) or RPC 1.3 (neglect of a legal matter entrusted to a lawyer), and RPC 1.4 (failure to keep a client reasonably informed and failure to promptly respond to reasonable requests for information). In three matters Dunn failed to refund unearned fees to clients, in violation of DR 2-110(A)(3) or RPC 1.16(d) (failure to promptly refund unearned fees upon termination). In six matters he improperly handled client funds or property, or failed to provide accountings, in violation of DR 9-101(A) or RPC 1.15-1(c) (failure to deposit and maintain client funds in trust) and DR 9-101(C)(3) or RPC 1.15-1(d) (failure to provide an accounting to clients).

Dunn also violated DR 1-103(C) or RPC 8.1(a)(2) (failure to cooperate in disciplinary investigation) when he failed to respond to the bar’s inquiry in nine matters.

Beginning Oct. 4, 2007, Dunn was suspended by the court, pursuant to the bar’s 3.1 petition for temporary suspension.

Dunn did not seek Oregon Supreme Court review of the trial panel decision.

 

EDWARD L. DANIELS
OSB #730700
Albany
Public reprimand

On March 10, 2008, the disciplinary board approved a stipulation for discipline reprimanding Albany attorney Edward L. Daniels for violations of DR 5-101(A)(1) and RPC 1.7(a)(2) (conflict of interest — lawyer self-interest); DR 5-104(A) and RPC 1.8(a) (business transaction with client).

Daniels represented a client on a wide variety of legal issues for many years. In 2002, he and the client decided to form an LLC to purchase a large parcel of land together, intending to use the land to raise and harvest Christmas trees. Daniels prepared the paperwork creating the LLC, and continued to act as the client’s attorney during their business partnership.

In 2002, the partnership bought a 450-acre parcel of land and timber; the client paid for his entire share of the property in cash, while Daniels financed part of his share of the property through a contract with the seller. This contract was in the name of both the client and Daniels, although the entire obligation was owed by Daniels.

In 2006, the partnership bought two additional parcels of land. The client paid for his share of the property in cash, while Daniels financed his share through a contract with the seller. The seller agreed to take the contract from Daniels, however, only after the client signed a personal guarantee.

Because failure by Daniels to pay his obligations to the seller could have had a negative impact upon the client, Daniels’ interests and those of the client in the transactions were not identical. Daniels did not make any full written disclosures and his conduct therefore violated DR 5-104(A) and RPC 1.8(a).

During the time that Daniels and the client were business partners, Daniels prepared all of the legal documents for the venture and for the purchase of properties. He prepared a timber sale contract making both partners responsible for monthly payments to the seller, even though it was Daniels who owed all of the money. Daniels also allowed his client to sign the personal guarantee that enabled Daniels to make the second property purchase in 2006, even though Daniels was at that time becoming increasingly dissatisfied with the partnership and in fact took steps to dissolve it shortly after the purchase. By continuing to represent the client when his own personal, business, property or financial interests reasonably could have affected his professional judgment on the client’s behalf — without making full written disclosures — Daniels violated DR 5-101(A)(1) and RPC 1.7(a)(2).

Daniels was admitted to practice in Oregon in 1973. Daniels had no prior disciplinary record, did not have a dishonest or selfish motive during the transactions in question, and displayed a cooperative attitude towards disciplinary proceedings.

 

MATTHEW R. AYLWORTH
OSB #070930
Eugene
Public reprimand

On March 14, 2008, the disciplinary board approved a stipulation for discipline reprimanding Eugene lawyer Matthew R. Aylworth for violating RPC 3.5(b) (ex parte communications with the court) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

Aylworth represented the plaintiff in a lawsuit filed in circuit court. The defendant retained a lawyer to represent her in the matter. Aylworth’s client decided to dismiss the lawsuit. Aylworth agreed with the defendant’s lawyer that if the lawsuit was dismissed then the defendant was entitled to recover her reasonable attorney fees and costs. Aylworth subsequently signed and filed with the court a notice for general judgment of dismissal without prejudice in which he inaccurately represented that the dismissal was without costs to any of the parties. Aylworth failed to serve a copy of the notice on the defendant’s lawyer. On that same day, Aylworth also filed with the court a general judgment of dismissal without prejudice. Aylworth failed to serve a copy of the proposed judgment on defendant’s lawyer not less than three days prior to submitting it to the court, as required by UTCR 5.100. The court signed the proposed judgment.

The stipulation recited that Aylworth was negligent in that he failed to review carefully the notice he signed and the proposed judgment before he submitted them to the court and failed to determine that the documents were not being properly served on defendant’s lawyer. Aylworth subsequently signed a stipulation to set aside the improperly obtained judgment when it was brought to his attention.

 

BRUCE A. GUNTER
OSB #820570
Portland
Reinstatement denied

On March 27, 2008, the Oregon Supreme Court issued an opinion denying the reinstatement application of Bruce A. Gunter, after concluding that Gunter failed to prove that he had the requisite good moral character and general fitness to practice law.

Gunter was admitted in Oregon in 1982, but left the state and changed careers in 1985, eventually voluntarily resigning from the bar. After criminal charges and a job loss associated with a serious drug and alcohol problem, Gunter obtained treatment in 1996 and stopped drug use. However, he eventually began to drink alcohol again. Based on expert testimony concerning the risk of relapse, the court found Gunter’s continued drinking to leave doubt whether he had overcome his drug and alcohol habits so that he was not a danger to the public.

Gunter also filed for bankruptcy twice in eight years, the most recent of which, shortly before he applied for reinstatement, was immediately after he procured a $400,000 loan to purchase a new home. While filing bankruptcy, standing alone, does not reflect on moral character, the circumstances here suggested that Gunter viewed the bankruptcy proceeding as a convenient means of escaping the consequences of his own inability to manage finances, rather than as a remedy of last resort for unforeseen expenses. Therefore, the court was left with substantial doubt whether Gunter was prepared to honor his financial obligations in the manner expected of lawyers.

 

CLARK WILLES
OSB #863160
Corvallis
30-day suspension

Effective Mar. 27, 2008, the disciplinary board approved a stipulation for discipline suspending Corvallis lawyer, Clark Willes for 30 days for violations of: RPC 1.2(c)(engaging in or assisting a client in conduct known to be illegal or fraudulent); RPC 3.3(a)(4) (knowingly concealing or failing to disclose to a tribunal that which a lawyer is required to reveal); RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation); RPC 8.4(a)(4) (conduct prejudicial to the administration of justice) and ORS 9.460(2) (seeking to mislead the court by artifice).

Willes’ violations resulted from his conduct in connection with a violation trial where he allowed someone other than the defendant to sit at counsel table while the true defendant sat in the gallery. The purpose of the subterfuge was to see if the state’s witness could make a positive identification of the defendant. Although Willes did not affirmatively state that the imposter was the defendant, his actions gave that impression to the court and the state. Willes disclosed the ruse following the testimony of the state’s first witness.

Willes was admitted to practice in 1986, and had been previously reprimanded for conduct prejudicial to the administration of justice. In mitigation, the stipulation recited that Willes did not act with a selfish motive, was cooperative with the bar and expressed remorse for his conduct, including an apology to the court.

 

SAMANTHA N. DANG
OSB #020410
Portland
Public reprimand

On March 31, 2008, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Samantha N. Dang for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).

Dang was the owner and licensed contractor of a construction company while her husband was the manager. Dang’s husband negotiated for the construction of a house with some buyers. Dang learned that the buyers wanted to finance the entire cost of the house with a loan from a bank but that the bank was not willing to lend sufficient funds to the buyers so that they could build the house they wanted.

Dang subsequently signed a contract with the buyers under which Dang’s construction company was to build a home for a certain fixed price. The fixed price was less than the cost of the house the buyers initially wanted to build. Dang knew that the contract would be shown to the bank as part of the buyers’ loan application and approval process.

The buyers secured financing with the bank. In connection with the closing of the bank loan, Dang signed a number of documents that linked the loan to the contract. One of those documents specifically stated that no changes could be made to the contract without prior written approval from the bank.

A few days later Dang signed as a witness a second contract between her construction company and the buyers. Dang knew the second contract was different than the first in that the fixed price was greater and construction profits were to be paid pursuant to a separate promissory note between her husband and the buyers rather than from the proceeds of the bank loan. Although the promissory note, which was negotiated and prepared by Dang’s husband, did not reference the house that was to be built, Dang knew that the amount of the note was the intended construction profit. Neither Dang, her husband nor the buyers informed the bank that the construction company and the buyers had signed a second contract. Ultimately there was no actual injury to the bank because the house was built and the buyers remained current in their payments to the bank.

 

TODD W. WETSEL
OSB #904102
Salt Lake City, Utah
Disbarment

Effective March 31, 2008, the disciplinary board disbarred former Portland lawyer Todd Wetsel in connection with his mishandling of five client matters and his lawyer trust account.

An order of default had previously been entered establishing that Wetsel had committed multiple violations of: RPC 1.3 (neglect of a legal matter); RPC 1.4(a) (failure to keep a client reasonably informed of the status of the client’s case); RPC 1.4(b) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions); RPC 1.15-1(a) (failure to hold client’s property separate and deposit client funds in trust); RPC 1.15-1(b) (depositing personal funds in excess of bank fees into trust); RPC 1.15-1(c) (failure to deposit and maintain client funds in trust); RPC 1.15-1(d) (failure to account for and promptly provide client funds or property); RPC 1.15-2(n) (failure to pay fees associated with trust account); RPC 1.16(a)(2) (failure to withdraw from representation where a physical or mental condition impaired ability to represent a client); RPC 1.16(d) (failure to take steps to protect a client’s interest upon the termination of representation); RPC 8.1(a)(2) (failure to respond to lawful demands from a disciplinary authority); RPC 8.4(a)(3) (conduct involving fraud, dishonesty, deceit or misrepresentation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

The trial panel found that Wetsel had knowingly caused harm to his clients, had abandoned his practice, and, as he is currently serving a suspension for similar misconduct, engaged in a pattern of practice that warranted disbarment.

 

 

Applications

Reciprocity 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, 16037 S.W. Upper Boones Ferry Rd., P.O. Box 231935, Tigard, OR 97281-1935.

Reciprocity: Stephanie Diane Anderson, Robert Richard Audley, Jay Allen Boelter, Michelle Marie Branigan, John Stanley Conniff, Ethan Falatko, Gregory Earl Montgomery, Andrew F. Rigel, Roland Dale Watson and John Herbert Wilkinson.

Rule 8.10:


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.

Christian Day of Portland, OSB #932517. In 1996, Day was administratively suspended from bar membership. The suspension was later determined to be void. Over the past 12 years, Day has been a student, has traveled, and has been employed in various positions unrelated to the law. After reinstatement, he will work as an associate with the Beaverton law firm of Ravelo Johnson Nguyen providing indigent criminal defense services.

William A. Nootenboom of Portland, OSB #961952. Nootenboom transferred to inactive status in 2002, because he was not practicing law. Since 1995, he has pursued a variety of entrepreneurial projects, including development of a specialty auto repair company, real estate development and consulting services. Following his reinstatement, he will be of counsel to the Portland law firm of Tarlow Naito & Summers.

Sandra H. Westin of California, OSB #925227. In 2000, Westin transferred to inactive status because she had relocated to California, where she was admitted to practice law in 2001. (She is also an inactive member of the Michigan bar.) Currently employed as an attorney for Fidelity Information Services in San Francisco, after her reinstatement Westin plans to relocate to Brookings and open a solo law practice.

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 these applications is asked to contact promptly the Regulatory Services Division at the Oregon State Bar, P.O. Box 231935, Tigard, OR 97281-1935, (503) 620-0222, or (800) 452-8260, ext. 343.



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