|Oregon State Bar Bulletin OCTOBER 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.
On July 17, 2008, the Oregon Supreme Court dismissed a complaint alleging that a lawyer violated: DR 1-102(A)(3) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation); DR 1-102(A)(4) (engage in conduct prejudicial to the administration of justice); DR 5-101(A)(1) (lawyer self-interest conflict); DR 5-105(C) (former client conflict of interest); DR 5-105(E) (current client conflict of interest) and DR 7-102(B)(1) (failure to call upon a client to rectify a fraud the client is perpetuating upon the court) of the Code of Professional Responsibility.
For a number of years, the lawyer represented several entities and individuals in various matters all of which stemmed from a tax avoidance enterprise. The bar alleged that in conjunction with his representation of two entities, debtors in a Chapter 7 proceeding, the lawyer engaged in dishonesty, made misrepresentations, and failed to call upon his client to rectify fraud the client was perpetuating upon the court. With regard to these allegations, the court found that the bar had not proved by clear and convincing evidence that the lawyer knowingly made false representations to the court.
The bar also alleged that the lawyer engaged in conduct prejudicial to the administration of justice when he failed to file amended bankruptcy schedules and a statutorily required statement regarding his fees. The court dismissed these charges because the client, not the lawyer, was ordered to file amended schedules, and because the lawyer’s failure to file the statement regarding his fees did not cause harm to the bankruptcy estate.
The bar also alleged that, in light of the lawyer’s representation of certain entities, his simultaneous representation of the debtors in the Chapter 7 proceeding constituted a current client conflict of interest for which he failed to obtain consent after full disclosure. The court dismissed the allegation on the grounds that the interests of the lawyer’s various clients were not adverse when the lawyer undertook the representation and that when the interests subsequently became adverse, the lawyer obtained consent after full disclosure.
Finally, the bar alleged that, when the lawyer withdrew from representing the Chapter 7 debtors, but continued to represent other entities in the Chapter 7 proceeding, he had a former client conflict of interest. In dismissing the charge, the court found that the lawyer was not required to obtain consent after full disclosure from the court-appointed bankruptcy trustee whom he had never represented.
HERBERT W. LOMBARD
On Aug. 24, 2008, the disciplinary board approved a stipulation for discipline reprimanding Eugene lawyer Herbert W. Lombard for violating RPC 5.5(a) (unauthorized practice of law), RPC 1.16(a)(1) (failing to withdraw) and ORS 9.160 (practicing law while not an active member.)
In 2006, Lombard undertook to represent defendants in a civil lawsuit. In July 2006, an additional lawyer associated as counsel for the defendants. Effective Jan. 1, 2007, Lombard transferred to inactive status with the bar. Lombard failed to withdraw from representing his clients in the lawsuit, and while an inactive bar member, he deposed the plaintiff and presented his clients’ case at a two-hour arbitration hearing.
The stipulation noted significant mitigating circumstances, including 50 years of practice with no discipline.
DANIEL J. BERTAK
OSB # 932120
Formerly of Eugene
Effective Sept. 2, 2008, the disciplinary board disbarred Daniel J. Bertak for violations of: RPC 1.3 (neglect of a legal matter entrusted to the lawyer); RPC 1.5(a) (excessive fee); RPC 1.16(d) (failure to refund unearned fees and expenses on termination of the representation) and RPC 8.4(a)(3) (dishonesty/conversion of client funds and misrepresentation).
Bertak was retained to file a petition and pursue dissolution of a client’s marriage. Bertak failed to take action to protect and advance the client’s interests and made material misrepresentations to the client concerning his activities. On termination of the representation, Bertak failed to return the unearned expenses and fees to the client.
Bertak was admitted to practice in Oregon in 1993. He had a prior record of discipline.
On Sept. 12, 2008, the Oregon Supreme Court approved a stipulation for discipline suspending Portland lawyer Larry Epstein for one year for violating RPC 8.4(a)(2) (commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects) and ORS 9.527(2) (conviction of a felony). The suspension is effective Dec. 5, 2007, when the court temporarily suspended Epstein from the practice of law pursuant to BR 3.4.
In September 2006, Epstein engaged in conduct that violated ORS 163.684 and ORS 163.686. Both statutes address the possession of, among other things, photographs of sexually explicit conduct involving minors. On July 17, 2007, Epstein pled guilty to violating ORS 163.684, a class B felony.
The stipulation noted that at the time of the underlying events, Epstein was experiencing significant depression for which he received and continues to receive treatment.
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 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.
SAMUEL J. NICHOLLS
Effective Sept. 17, 2008, a trial panel disbarred Lake Oswego lawyer Samuel J. Nicholls for violating: RPC 1.15-1(d) (failing to promptly render an accounting); RPC 1.16(a)(1) (failing to withdraw from representation); RPC 5.5(a) (engaging in the unauthorized practice of law); RPC 8.1(a)(2) (knowingly failing to cooperate in a bar investigation.); RPC 8.4(a)(3)(engaging in conduct involving misrepresentation) and ORS 9.160 (practicing law in violation of a regulation of the legal profession).
In April 2005, Nicholls was retained by a client to contest the amount of fees claimed by the client’s prior lawyer in a dissolution of marriage proceeding. In March 2006, the client’s former lawyer filed a lawsuit against her for payment of the fees the client allegedly owed. On June 12, 2006, Nicholls filed an answer on behalf of the client.
Effective June 13, 2006, Nicholls was suspended from the practice of law. After June 13, 2006, Nicholls knowingly failed to disclose to his client and to the opposing lawyer that he had been suspended from the practice of law. Nicholls also failed to withdraw from representing the client, continued to engage in the practice of law while he was not an active member of the bar, and failed to promptly render a full accounting to his client of the funds she had paid to him. In connection with the bar’s investigation into his conduct, Nicholls knowingly failed to respond to the bar’s inquiries.
The trial panel found substantial aggravating circumstances, including an extensive prior disciplinary history involving similar misconduct, and no mitigating circumstances. The trial panel ordered Nicholls to make restitution to his client.
ROBERT G. KLAHN
Effective Oct. 17, 2008, the disciplinary board approved a stipulation for discipline suspending Pendleton lawyer Robert Klahn for 60 days for violations of RPC 1.3 (neglect) and RPC 1.4(a) (failure to adequately communicate with clients).
Klahn represented four separate court-appointed clients in post-conviction and habeas corpus proceedings. In two of the matters, Klahn failed to timely file amended petitions on behalf of his clients, and in all four matters Klahn failed to keep his clients reasonably informed of the status of their matters or to respond to repeated requests for information on their cases.
Klahn’s sanction was aggravated in part by two prior public reprimands for unrelated misconduct, the vulnerability of his incarcerated clients, and his substantial experience in the practice of law. Klahn was admitted in Oregon in 1980. In mitigation, the stipulation noted that Klahn did not act dishonestly and cooperated with the bar proceedings.
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.
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: Timothy Ernest Allen; Todd Nygaard George; Karen Louise Hammer; Bennett Joseph Hansen; William James Leedom; Bruce Wayne Megard, Jr.; Clinton Iver Overall; Laurence Erickson Walker.
Rule 8.10: Whitney Bryn Huston.
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:
Alissa M. Weaver, #963635. In 2003, Weaver of Jacksonville transferred to active pro bono membership status. Since that time, she has been providing pro bono services for the Jackson County Center for Non-Profit Legal Services. She has recently accepted a position with the Southern Oregon Public Defender’s offices in Medford.
Stacy H. Rutledge, #902673. Rutledge of Newberg transferred to inactive status in 2003 to spend time with her family. Prior to her inactive transfer, she was employed by Clackamas County as assistant county counsel and deputy district attorney. She has no specific plans after reinstatement.
Susan E. Teppola, #770285. Since 1988, this Carlton resident has been employed as an administrative law judge. Because this position does not require active membership, she transferred to inactive status in 1987. Teppola plans to continue in her present position following her reinstatement.
William M. Parker, #742205. Parker of Tigard was suspended for four years for disciplinary reasons effective Oct. 16, 2000. In re Parker, 330 Or 541, 9 P3d 107 (2000). Thereafter, he resigned from bar membership. Since 2002 he has been providing contract legal research and writing for area attorneys. He has no specific plans following reinstatement.
Jan Perkins, #742569. Currently a resident of Texas, Perkins transferred to inactive status in 2000, and was subsequently suspended for disciplinary reasons for 60 days effective June 29, 2000. He returned to inactive status later that year. Perkins has been employed as a paralegal/legal coder in Houston.
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.