|Oregon State Bar Bulletin NOVEMBER 2008|
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.
Effective Sept. 17, 2008, the disciplinary board suspended Catherine Dixon of Lake Oswego (formerly practicing in Salem) for 12 months for violations of: DR 9-101(A) (trust account violation), RPC 1.1 (lack of competent representation), RPC 1.3 (neglect), RPC 1.4(a) (lack of communication with client) and RPC 8.1(a)(2) (failure to respond to the bar).
Dixon was paid a retainer to file a petition seeking post-conviction relief for a client previously convicted of criminal offenses. She did not deposit the retainer in a trust account, and had no written fee agreement with the client permitting the retainer to be deposited anywhere other than in trust. Thereafter, despite repeated inquiries from the client to which she did not respond, Dixon failed to file the post-conviction petition for nearly two years. The ultimate filing of the petition was timely under the state statute concerning post-conviction relief, but was not timely under federal law to preserve the client’s ability to later seek a writ of habeas corpus.
In another matter, Dixon failed to respond when the bar was investigating a complaint by a second client.
The sanction imposed by the trial panel took into account Dixon’s prior disciplinary history balanced against several mitigating factors.
JAMES L. LANE
Effective Sept. 19, 2008, the disciplinary board approved a stipulation for discipline suspending Portland lawyer James Lane for 30 days for violating DR 1-102(A)(3) (conduct involving dishonesty or misrepresentation) for his backdating of certain documents at his client’s request.
In April 2000, Lane met with an established client and his business partner, and agreed to draft for the client a promissory note memorializing a loan that had reportedly been made to the client by the business partner’s company in 1999. Lane drafted the note as requested and accurately represented that it had been executed in April 2000. Lane also drafted a letter dated May 8, 2000, referencing the April 2000 meeting and transmitting the note to the partner’s company.
Shortly after the note was executed, and before either the note or the transmittal letter were delivered, the client advised Lane that he and his business partner had determined that the amount of the loan was actually higher than that reflected in the first note and requested that the terms of the note be changed to show an increased loan amount and to also reflect that the date of the loan was in 1999. The client also requested that the transmittal letter be backdated to 1999 to match the note for his internal record-keeping purposes.
As requested, Lane drafted a new promissory note, increasing the stated amount of the loan and reflecting that the note was dated in April 1999. Lane also drafted a new letter transmitting the revised note to the business partner’s company, which was falsely dated May 8, 1999, and which omitted any mention of the April 2000 meeting, because Lane wanted it to appear that the transaction took place in 1999.
Lane’s conduct came to light some years later when the client was criminally convicted of tax fraud based, in part, on his financial dealings with the business partner. Lane testified at the client’s criminal trial, acknowledging the impropriety of the backdating.
The stipulation stated that Lane’s conduct was aggravated by his substantial experience in the practice of law. Lane was admitted in Oregon in 1983. Among the factors in mitigation were Lane’s absence of any prior discipline, his cooperation with the bar and his good character and reputation.
DERRICK E. MCGAVIC
On Sept. 21, 2008, the disciplinary board approved a stipulation for discipline reprimanding Eugene lawyer Derrick E. McGavic for violating DR 7-104(A)(1) and RPC 4.2 (communicating with a represented person), RPC 3.5(b) (ex parte communication with the court) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
In one matter, McGavic obtained a judgment on behalf of a client and initiated collection efforts against the debtor. McGavic then received notice that the debtor had retained a lawyer to represent him in the collection matter. Thereafter, after consulting with McGavic, one of McGavic’s employees contacted the debtor directly about the collection matter.
In a second matter, McGavic, on behalf of a client, initiated a lawsuit for collection of a debt. McGavic then received notice that the alleged debtor had retained a lawyer to represent her in the lawsuit. Thereafter, one of McGavic’s employees sent a letter directly to the alleged debtor on the subject of the lawsuit. In that same matter, McGavic signed and sent a notice to the debtor’s lawyer that he would apply for a default in 10 days. Before the 10 days had expired, McGavic’s office sent to the court an unsigned "Stipulated Ex Parte General Judgment and Plaintiff’s Motion Thereon." McGavic failed to serve a copy of the document on the debtor’s lawyer, and contrary to the representation made in the document, there was no stipulation for entry of a general judgment. The court signed the improper judgment, discovered that it should not have been signed, and set it aside sua sponte.
The stipulation recited that the improper contacts with the represented parties and the court were not intentional, but resulted from poor staff training and inadequate office procedures, which McGavic has sought to remedy.
JEFFREY E. DETLEFSEN
Form B resignation
Effective Oct. 3, 2008, the Oregon Supreme Court accepted the Form B resignation of Portland lawyer Jeffrey E. Detlefsen. At the time of the resignation, a formal disciplinary proceeding was pending against Detlefsen for alleged violations of various disciplinary rules.
In one matter, Detlefsen was charged with violation of former DR 6-101(B) and current RPC 1.3 (neglect); RPC 1.4(a) (failure to communicate); and former DR 1-102(A)(3) and current RPC 8.4(a)(3) (dishonesty and misrepresentation) concerning his handling of a client’s dispute and litigation related to an alleged contaminated real property site.
In a separate matter, Detlefsen was charged with violating former DR 2-106(A) and current RPC 1.5(a) (charging and collecting an excessive fee); RPC 1.4(a) (failing to communicate); DR 5-101(A) (lawyer self-interest conflict); former DR 9-101(C)(3) and current RPC 1.15-1(d); (failing to account for client funds); RPC 8.4(a)(3) (dishonesty/conversion and misrepresentation); RPC 1.16(d) (failing to perform obligations on termination of employment); and RPC 8.1(a) and RPC 8.4(a)(3) (failing to comply with lawful requests and making false statements to the disciplinary authorities).
Detlefsen was admitted to practice in Oregon in 1980. He had no prior record of discipline. Detlefsen has been suspended in Oregon on grounds unrelated to the pending proceeding since April 2007.
THOMAS L. La FOLLETT
Form B resignation
Effective Oct. 3, 2008, the Oregon Supreme Court accepted the Form B resignation of former Canby attorney, Thomas La Follett.
At the time of LaFollet’s resignation, trial was scheduled in a formal proceeding alleging violations of: RPC 1.15-1(a) (failure to maintain complete records of client funds); RPC 1.15-1(b) (prohibition against depositing lawyer’s own funds in trust); RPC 1.15-1(c) (failure to maintain client funds in trust) and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation reflecting adversely on the lawyer’s fitness). The formal complaint alleged that from February 2004 through December 2006, La Follett deposited both personal and client funds into his trust account. These personal funds included loan proceeds totaling more than $100,000 and the proceeds of the sale of La Follett’s personal residence of more than $27,000. At the time of these deposits, La Follett owed significant obligations to creditors, and it was alleged that these deposits were made into his trust account to shield them from reach by these creditors. La Follett did not make or maintain sufficient records for the funds going in and out of his trust account and was not able to account for client funds. The bar claimed that La Follett also converted client funds to his own use during the better part of 2006.
La Follett was admitted in Oregon in 1987 and had no prior discipline. La Follett is also a member of the Idaho bar where he was admitted in 2006.
SHARON LEA MITCHELL
OSB # 920980
Form B resignation
Effective Oct. 3, 2008, the Oregon Supreme Court accepted the Form B resignation of Sharon Lea Mitchell. At the time of the resignation, a formal disciplinary proceeding was pending against Mitchell for alleged violations of various disciplinary rules, including RPC 1.8(e) (advancing or guaranteeing financial assistance to a client in connection with pending litigation); RPC 5.5(a) (practicing law in violation of the regulations of the legal profession); ORS 9.160 (engaging in the unlawful practice of law); RPC 8.4(a)(4) (conduct prejudicial to the administration of justice) and RPC 8.1(a)(2) (failure to comply with lawful requests of the disciplinary authority).
Mitchell was admitted to practice in Oregon in 1992. She had a prior record of discipline. She has been suspended in Oregon on grounds unrelated to the pending proceeding since October 2001.
MARK L. RUNNELS
Effective Oct. 7, 2008, the disciplinary board suspended Klamath Falls attorney, Mark Runnels for one year.
In August 2005, Runnels undertook to represent a client as the personal representative of an estate. Thereafter, Runnels accepted a $2,500 check from the estate funds for his attorney fees without prior court approval, in violation of RPC 1.5(a) (charging or collecting an illegal fee).
For more than a year, Runnels failed to perform a number of actions required for the completion of the estate, including the filing of an accounting. Beginning around March 2006, Runnels stopped opening all written correspondence sent to him related to the estate. At that point, Runnels’ conduct amounted to a failure to withdraw when his physical or mental condition materially impaired his ability to represent his client, in violation of RPC 1.16(a)(2).
In September 2006, the attorney for one of the estate’s heirs filed a petition to remove Runnels’ client as the personal representative. Runnels did not respond to or notify his client of the petition for removal, or the subsequent order removing her as personal representative. The order contained a provision requiring Runnels’ client to deliver to the new personal representative all of the assets and documents relating to the estate within 30 days. When Runnels’ client did not comply, the new personal representative sought and obtained an order compelling Runnel’s client to produce the assets and documents. Runnels did not respond to or notify his client of the court’s order.
Thereafter, Runnels’ client was found in contempt and the court imposed a fine of $100 per day so long as she failed to comply. Runnels did not comply with or even notify his client of the court’s ruling for several weeks or months.
Runnels’ failure to take any action on the estate constituted neglect of a legal matter, in violation of RPC 1.3. Runnels’ failures to notify his client of the events in the case constituted a failure to keep his client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of RPC 1.4(a) & (b). Runnels’ numerous failures to respond to opposing counsel and the court, as well as his failure to notify his client of court proceedings or the outcome thereof, constituted conduct prejudicial to the administration of justice, in violation of RPC 8.4(a)(4).
Although Runnels had no prior discipline, his conduct was aggravated in part by his selfish motive in taking the illegal fee and his substantial experience in the practice of law.
JOHN MICHAEL UNFRED
OSB # 893730
On Oct. 12, 2008, the disciplinary board reprimanded Salem attorney John Michael Unfred for violations of: RPC 1.3 (neglect of a legal matter); RPC 1.4(a) (failure to keep client reasonably informed and promptly comply with reasonable requests for information) and RPC 1.5(a) (charging a clearly excessive fee).
Unfred undertook to represent a dissolution client in April 2006, agreeing to charge her at a discounted rate pursuant to a contract that Unfred had earlier entered with the client’s employee assistance program. During the representation, which lasted approximately one year, Unfred billed the client at the undiscounted rate. In June 2007, after becoming dissatisfied with Unfred’s inactivity on her case, the client fired him, complained to the bar and demanded that he return her entire retainer. Unfred did so.
For several months after Unfred was retained, he was active on the client’s case. However, after January 2007, the client telephoned and e-mailed Unfred with questions and requests for action, but received only occasional, non-substantive responses from Unfred’s paralegal.
Unbeknownst to the client, Unfred was not receiving her telephone calls and e-mails. Unfred’s paralegal was intercepting them and then failing to pass them along to him. Unfred was unaware that the client was trying to contact him until she fired him in June 2007.
Unfred did no work on the client’s case between January 2007 and June 2007, nor did he communicate with her during this time.
By billing the client at the undiscounted rate, Unfred charged a clearly excessive fee, even though he ultimately refunded her entire retainer. Unfred also failed to adequately supervise his staff and failed to act diligently on his client’s case, effectively leaving her dissolution unattended for several months. Mitigating circumstances in this case include the absence of a dishonest or selfish motive, personal or emotional problems, a cooperative attitude toward disciplinary proceedings, and a timely good faith effort to make restitution or rectify consequences of misconduct.
Unfred was admitted to practice in Oregon in 1989. He had no prior disciplinary record.
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, P.O. Box 231935, Tigard, OR 97281.
Reciprocity: Dean Brett, William Coats, Karla Forsythe, Mark Kantor, Brian Muchinsky, Brian Read, Karen Weaver, Antoine Jean-Marie Tissot.
Rule 8.10:Whitney Huston, Mark Bainbridge.
Notice of Reinstatement Application
The following attorneys have filed an application for reinstatement as an active member of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1:
Alice Ellis Gaut, #802183. In 2001, Gaut of Tigard transferred to active pro bono membership status. Until 2006, she volunteered as an intake lawyer for the St. Andrew Legal Clinic. Ms. Gaut transferred to inactive status last year, but continues to be an active community volunteer. She has no specific plans after reinstatement.
Janet E. Neuman, #813258. Since 1992, Neuman has been a faculty member at Northwestern School of Law of Lewis & Clark College. She transferred to inactive status in 1998, since she was not actively practicing law. Currently on sabbatical from teaching, she plans to serve as of-counsel with a Portland law firm after reinstatement, focusing on water and natural resource law.
David T. Young, #934640. Mr. Young transferred to inactive status in 1999, because he had entered an MBA program at the University of Minnesota. Following his graduation, he relocated to New York, where he has been working in the securities compliance industry. He has no plans to return to the practice of law following his reinstatement.
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.