|Oregon State Bar Bulletin APRIL 2010|
Note: More than 14,000 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.
ANN B. WITTE
Effective Jan. 11, 2010, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Ann Witte for violations of RPC 1.3 (neglect); RPC 1.4(a) (failure to keep a client reasonably informed of the status of a case); RPC 1.16(a) and RPC 1.16(d) (improper withdrawal).
Witte was hired to dispute the cessation of her client’s unemployment benefits following a claimed overpayment by the state. Two telephone hearings were set and postponed at Witte’s request. Notice of both of these hearings had been sent directly to Witte’s client who then notified her of the hearing dates, as the state had sent Witte’s copies to an incorrect address.
Notice of the third setting was sent to the client in care of Witte’s correct address with a copy to Witte at the same address. Witte received this notice but did not recognize that the client’s copy had also been sent to her. The client did not receive advance notice of the hearing and Witte did not contact him to advise him of the date or prepare him for the hearing. Accordingly, the client did not appear. Witte did not attempt to contact the client at the time of the hearing or thereafter, nor did she appear on the client’s behalf. As a result, the hearings officer dismissed and closed the case. Witte decided not to do anything further on the client’s matter but did not notify the client or the state of this fact or return the client’s file materials to him.
The following month, the client called the unemployment office to inquire about the delay in resetting the hearing in his matter and learned that the case had been dismissed and closed due to his failure to appear at the hearing. The client immediately called Witte who told the client that she had gotten the notice of the hearing and apologized for not contacting him. Witte decided that she was not willing to pursue the appeal for the client but did not tell the client this or return file materials to him so he could pursue the appeal on his own. The client formed the belief that Witte would handle his appeal.
A few weeks later, the client telephoned the unemployment office to check on the status of his paperwork and was told that no forms had been filed. The client again contacted Witte and, then recognizing that she was not going to handle the appeal, demanded his file materials. Witte immediately sent the client’s file materials to him. The client tried on his own to get the matter reopened, but time had expired.
Effective Jan. 20, 2010, former Salem attorney Catherine Dixon was suspended from the practice of law for four years pursuant to an opinion of a trial panel of the disciplinary board. Dixon did not seek Oregon Supreme Court review of the opinion.
In one matter, Dixon filed an appellate brief for an incarcerated client but thereafter, while the appeal was still pending, failed to inform the client that she had closed her law practice and was suspended for nonpayment of the PLF assessment. She also failed to provide the client with any new contact information, refund part of a cost retainer that had not been expended on the case or respond to an inquiry made by the Court of Appeals. The trial panel determined that Dixon violated RPC 1.5(a) (charge or collect a clearly excessive amount for expenses) and RPC 1.16(d) (failure to take steps to protect client interests upon termination of representation).
In a second matter, Dixon did not respond to a client’s repeated requests for his file materials, did not comply with a court order directing her to turn over the file materials to the client and did not respond to bar inquiries concerning the client’s complaint. The panel found violations of RPC 1.15 1(d) (failure to promptly deliver client property) and RPC 8.1(a)(2) (failure to respond to a bar inquiry).
The sanction imposed by the trial panel was aggravated by Dixon’s substantial past disciplinary history which included violations of some of the same disciplinary rules violated in the pending case.
MARTIN R. CAPETZ
Form B resignation
Effective Jan. 21, 2010, the Oregon Supreme Court accepted the Form B resignation of former Jackson County lawyer Martin R. Capetz. At the time of the resignation, a formal disciplinary proceeding was pending against Capetz alleging several violations of the rules of professional conduct including: RPC 1.5(a) (excessive fee); RPC 1.15-1(a) and (c) (trust account violations); RPC 1.16(d) (improper withdrawal); RPC 3.4(a) and RPC 8.4(a)(4) (failing to comply with discovery orders); RPC 5.5(a) and ORS 9.160 (practicing law while suspended); RPC 7.1(a)(1) and RPC 7.5(c)(1) (misleading advertising); RPC 8.1(a)(2) (failure to cooperate in bar inquiry); and RPC 8.4(a)(3) (conversion of client funds).
Capetz closed his law office before submitting the resignation in December 2009.
WILLIAM E. CARL
1-year suspension, all but 30 days stayed, 3-year probation
By order dated Jan. 21, 2010, the Oregon Supreme Court accepted a stipulation for discipline whereby William E. Carl was suspended for one year for violations of ORS 9.527(2) (felony conviction) and RPC 8.4(a)(2) (criminal act that reflects adversely on honesty, trustworthiness or fitness to practice law). The stipulation provides that all but 30 days of the suspension will be stayed pending successful completion of a three-year probation.
In January 2009, Carl possessed 2.72 ounces of marijuana at his home, where he lived with his wife and two young children. He was aware that his wife sometimes sold marijuana from their home. He and his wife used proceeds from those sales to purchase marijuana for their own use. On May 12, 2009, Carl pled guilty to and was convicted of one charge of knowingly or intentionally possessing more than one ounce of marijuana, a Class B felony. He also entered guilty pleas to and was convicted of two charges of endangering the welfare of a minor, a Class A misdemeanor.
The stipulation cited Carl’s experience in the practice of law and the vulnerability of the victims as aggravating factors. Mitigating factors included the absence of prior discipline, good character and reputation with members of the Marion and Polk County legal communities, remorse, imposition of other penalties (including an 18-month probation with Polk County Corrections) and a timely good faith effort to rectify the consequences of his misconduct. Conditions of the three-year probation include maintaining sobriety and abstaining from drugs, attending weekly meetings of a 12-step program and meeting monthly with a supervising attorney.
On Feb. 3, 2010, the disciplinary board approved a stipulation for discipline reprimanding Corvallis attorney Karen Misfeldt for violations of: RPC 1.1 (duty of competence); RPC 1.4(a) and (b) (duty to communicate with client); and RPC 1.7(a) (current client conflict of interest).
Misfeldt was approached by persons who told her that they were friends of an elderly individual (“Client”) who was then residing in an assisted living facility. Misfeldt did not know Client, but she was told that Client’s son was petitioning the court for permission to purchase Client’s house (her principal asset) for less than it was worth. The friends (one of whom held Client’s power of attorney) asked Misfeldt to object to son’s petition.
Misfeldt filed an objection over Client’s signature (which was procured by one of the friends). Misfeldt subsequently agreed to represent Client, both with respect to the sale of her house and in obtaining the appointment of a new guardian, as all concerned understood that Client did not get along with her existing guardian.
Misfeldt petitioned the court and was appointed Client’s attorney. Client’s son thereafter agreed that the house could be sold through a realtor to a third party. Misfeldt signed the sales agreement on Client’s behalf. Because of the anticipated sale proceeds, Misfeldt believed Client needed a conservator. (A temporary conservatorship previously established for Client had expired several months earlier.) Misfeldt filed a petition seeking to have one of Client’s friends appointed conservator and replacement guardian.
When Misfeldt filed the petition and supporting documents, she became attorney of record for the friend (as proposed conservator/new guardian) at a time when she was already attorney of record for Client (as proposed protected person). This concurrent representation involved a current client conflict of interest, in that Client’s legal interest in maintaining autonomy over her affairs was objectively adverse to the proposed conservator/new guardian’s legal interest in obtaining control over those affairs.
Misfeldt acted in good faith. However, during the representation, Misfeldt never met or spoke with Client, instead relying on the prior orders of the court, the power of attorney and Client’s friends and caregivers for information about Client’s objectives and mental capabilities. Misfeldt also relied on third parties to convey Misfeldt’s advice back to Client. Although Misfeldt sent Client copies of letters and pleadings, Misfeldt had no reasonable basis to believe that Client understood them. Misfeldt thereby failed to communicate adequately with Client.
Misfeldt has no prior record of discipline and cooperated fully with disciplinary authority in this matter.
BENJAMIN M. KARLIN
Effective March 5, 2010, the disciplinary board approved a stipulation for discipline suspending Milwaukie attorney Benjamin Karlin for 60 days for violations of: RPC 1.4(a) & (b) (inadequate communication with client); RPC 1.15-1(a) & (c) (failure to segregate and hold client funds in trust); and RPC 1.15-1(d) (failure to promptly deliver client property).
The violations arose in connection with Karlin’s representation of a client in civil litigation. The client paid Karlin a flat fee, which he deposited directly into his personal checking account without a written fee agreement, erroneously believing that he had already earned and was entitled to the funds.
An arbitrator ruled in favor of the opposing party and Karlin’s client elected to appeal to circuit court. However, prior to the trial date, Karlin agreed with opposing counsel to dismiss at least one of the claims in the complaint. Karlin did not notify his client of the dismissal of the claim or explain the significance of its dismissal. The client learned of the dismissal of her claim for the first time when she appeared for trial.
Following trial Karlin failed for an extended period to comply with his client’s request for the return of her file materials.
Karlin’s sanction was aggravated in part by a prior record of discipline, including reprimands in 2007 and 2008. In mitigation, Karlin did not act with a dishonest or selfish motive and was cooperative in the disciplinary process.
SHARON C. STEVENS
Effective March 5, 2010, the disciplinary board approved a stipulation for discipline suspending Keizer lawyer Sharon Stevens for 60 days for violations of RPC 1.3 (neglect) and RPC 1.4(a) (failing to keep a client reasonably informed and promptly comply with reasonable requests for information).
Stevens represented a client in an employment claim. Following Stevens’ submission of the claim to BOLI, the client filed for bankruptcy. When Stevens learned of the bankruptcy, she instructed the client to notify the client’s bankruptcy attorney of the employment claim. After the bankruptcy trustee was notified, he and Stevens agreed that the trustee would send Stevens an application to be appointed as the attorney for the bankruptcy estate to allow her to continue to pursue the client’s employment claim. The trustee also specifically authorized Stevens to get a counter-offer to her most recent demand on the employer.
Within a few weeks, Stevens received an oral counter-offer from the employer, but she did not complete the employment application from the trustee subsequently sent to her, so she could not act on the offer or subsequent offers conveyed by the employer, and they expired. Stevens did not notify the trustee of all of these offers or respond to multiple inquires from the trustee seeking information about the matter.
Several months after she received it, Stevens returned the employment application and was appointed to pursue the employment claim. However, Stevens formed the belief that the bankruptcy trustee was going to handle negotiations with the employer himself. Although Stevens did not confirm her understanding in writing, she ceased all work on the employment claim and failed to respond to a number of subsequent inquires from the trustee and the client’s bankruptcy attorney regarding the status of the matter.
The stipulation recited that Stevens’ conduct was aggravated in part by a prior admonition for similar misconduct, a pattern of misconduct and her substantial experience as a lawyer. In mitigation, Stevens did not act with a dishonest or selfish motive.
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: Lawrence Ronald Cock, Steven Jay Contos, W Keith Goody, Wesley Neal Harris, James Patrick Jacobsen, Cassandra Lynn Marshall, Kevan Tino Montoya, Christopher Charles Moore, Herman Stanley Muir, III, Melissa Ann O’Loughlin White, Paul Mark Rosner, Michael Charles Simon, William Randolph Squires, III, Anna Stern-Lipke, Matthew Edwin Thompson and Javier Esquivel Zamora.
Rule 8.10: Colby Anthony Cano.
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:
William G. Benjamin of Portland, #820040. William G. Benjamin is seeking reinstatement after his 1991 disbarment. In re Benjamin, 312 Or 515, 823 P2d 413 (1991). Since that time, he has worked in a variety of industries, including home renovation, collections and trucking. He currently is employed as a substitute teacher in Portland and Vancouver. He plans to return to the practice of law in Multnomah County.
Lawrence Lee Epstein of Portland, #790386. Effective Dec. 5, 2007, Epstein was suspended for one year for disciplinary reasons. In re Epstein, S056473 (2008). He is currently working as an independent consultant. Epstein submitted an application for reinstatement in 2009, but withdrew the application before it was submitted to the supreme court. If reinstated, he plans to resume the practice law either with a firm or governmental agency.
Laura J. Larson of Portland, #951325. Laura J. Larson has been inactive since 2002. From 1998 through 2005, she worked for LexisNexis teaching legal research. She began working as a part-time legal assistant for a Portland law firm in 2007, and after reinstatement will move into a full-time position with this firm.
Stella K. Manabe of Sherwood, #930748. Stella Manabe transferred to inactive status in 1994 because her position as director of academic support/affirmative action at Lewis & Clark Law School did not involve the practice of law. She subsequently served as administrator for the Oregon State Bar Affirmative Action Program until September 2007. She recently joined a Lake Oswego law firm as a legal assistant and will move into an associate position there after her reinstatement.
Richard A. Sheard of Alaska, #975350. Richard Sheard seeks reinstatement after transferring to inactive status in 2001 to accept a one-year judicial clerkship in Alaska. He remained in Alaska, working for the Ocean Conservancy and Pacific Environment. After reinstatement, he will serve as counsel for Oceana, a nonprofit conservation group.
Rose Thrush of Portland, #801184. Inactive since 1994, Rose Thrush worked as a legal analyst for the U.S. Bankruptcy Court for 17 years. She voluntarily resigned her bar membership in 2006 after retiring. Following her reinstatement, she plans to provide pro bono services, with no immediate plans to return to the active practice of law.
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 whether the resumption of the practice of law in this state by the 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 OSB Regulatory Services Division, P.O. Box 231935, Tigard, OR 97281; phone: (503) 620-0222, or toll-free in Oregon, (800) 452-8260), ext. 343.