|Oregon State Bar Bulletin AUGUST/SEPTEMBER 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.
Effective June 30, 2010, the disciplinary board approved a stipulation for discipline suspending Portland lawyer Rankin Johnson for six months for violations of RPC 1.3 (neglect), RPC 1.4(a) (failure to keep a client reasonably informed of the status of a case) and RPC 8.4(a)(3) (misrepresentations).
Johnson was appointed to represent a client in a post-conviction relief appeal. Ultimately, the court of appeals affirmed the trial court’s decision and judgment without opinion. Johnson’s client immediately requested that Johnson file a petition for review with the Oregon Supreme Court. Johnson failed to file a petition for review or respond to his client’s questions concerning the post-conviction appeal. Accordingly, the court of appeals filed an appellate judgment.
During the nearly two years thereafter, Johnson’s client, the client’s federal habeas corpus attorney and the Office of Public Defense Services all made multiple inquiries of Johnson and requested information concerning the status of the petition for review. Johnson did not respond to many of these inquiries. When he did respond, Johnson often misrepresented the status of the case and the reasons for delay in the case. Meanwhile, he took no substantive action to exhaust his client’s state remedies to allow him to qualify for federal relief.
Thereafter, the client complained to the bar. In response to the bar’s inquiry, Johnson misrepresented that he had not sooner filed a petition for review because the client failed to notify him that he wanted to file a petition until after the time to file the petition had passed.
The stipulation recited that Johnson’s sanction was aggravated by a prior public reprimand for similar misconduct, multiple offenses, a pattern of misconduct, the fact that the client was incarcerated and therefore dependent upon Johnson to communicate with him and properly handle his case, and Johnson’s substantial experience in the practice of law, having been admitted to practice in Oregon in 1996 and having primarily practiced in the area of criminal appeals and post-conviction matters. In mitigation, Johnson expressed remorse for the delay and any injury.
DONALD R. SLAYTON
On May 27, 2010, the disciplinary board approved a stipulation for discipline suspending Eugene lawyer Donald R. Slayton from the practice of law for 60 days, effective June 15, 2010, for violating RPC 8.4(a)(3) (conduct involving misrepresentation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice.)
Slayton was cited for jaywalking in Eugene, and trial in the matter was scheduled for Oct. 23, 2008. Slayton was also representing the plaintiff in a civil matter pending in Washington County. The civil matter was set for trial on Oct. 22, 2008.
On or about Oct. 3, 2008, Slayton realized that trial in the civil matter could not be completed in one day. The lawyer representing defendants in the civil matter was unable to agree to a postponement of the matter, and on Oct. 21, 2008, Slayton filed a motion to postpone the civil matter.
On Oct. 22, 2008, Slayton appeared before the court in the civil matter for trial assignment. Slayton represented to the judge that he was not ready for trial because of a conflict with another matter set for trial in Eugene the next day. In response to the judge’s questions about the matter set in Eugene, Slayton, because he did not want the jaywalking trial to have to be reset, made misrepresentations about the nature of the matter (stating it was a vehicular homicide case) and the identity of his client. Eventually, after the judge continued to ask questions, Slayton admitted that he was the client and the matter involved jaywalking.
R. KEVIN HENDRICK
Salem lawyer R. Kevin Hendrick has been suspended from the practice of law for two years, pursuant to an opinion of a disciplinary board trial panel. Hendrick was found to have violated RPC 1.15-1(a) and (c) (failure to deposit client funds in trust and maintain complete records of those funds), RPC 1.15-1(d) (failure to return client funds), RPC 7.1(a)(1) (false or misleading advertising), RPC 8.1(a)(1) (false statements in a disciplinary inquiry), RPC 8.4(a)(2) (criminal conduct) and RPC 8.4(a)(3) (dishonesty or misrepresentation).
Hendrick operated under the assumed business name of Valley Law Center and attracted through advertising clients who wanted to improve their credit standing. Hendrick accepted an advanced flat fee from these clients without a written fee agreement, but failed to deposit the fees into a trust account or maintain records of those funds. Statements made in Hendrick’s advertising about Valley Law Center, particularly about the number of lawyers working at the firm and the existence of a full refund policy, were false.
The panel also found that Hendrick made several false statements during the disciplinary investigation and subsequent proceeding, some under oath.
No request for review by the state supreme court was filed in this case and, therefore, the trial panel opinion and Hendrick’s suspension became effective June 22, 2010.
ROBERT D. NEWELL
On June 10, 2010, the Oregon Supreme Court issued an opinion reprimanding Portland lawyer Robert D. Newell for violating RPC 4.2 (communicating with a represented person).
Newell represented a business client that had purchased all the assets of another company, but later claimed that it had overpaid as a result of the seller’s accounting errors and overstatement of its inventory. On behalf of the purchasing company, Newell filed suit seeking to recover the overpayment. Around the same time, the seller’s accountant was criminally prosecuted for embezzling funds from the seller, conduct that contributed in part to Newell’s client paying too much for the seller’s assets.
Within days of the scheduled trial of the civil case, Newell caused a subpoena to be served on the accountant on a Friday evening for a deposition the following morning. The accountant appeared but stated his concern that he was the subject of a criminal prosecution and had not been able in the few hours since the subpoena was served to contact his attorney. Newell proceeded to depose the accountant, asking him questions that related to the criminal case.
The Oregon Supreme Court determined that Newell’s communication with the accountant was on the subject on which the accountant was represented by counsel and therefore violated RPC 4.2. The court rejected Newell’s argument that the deposition was properly noticed under the rules of civil procedure and therefore the communication fell within an “authorized by law” exception to the disciplinary rule. Although a deposition is authorized by law, the court noted that the accountant did not have an opportunity to consult with counsel and that the authorized-by-law-exception was not so broad as to permit one lawyer to unilaterally exclude a represented witness’ lawyer from a deposition.
THOMAS J. PETERSON
On May 27, 2010, the Oregon Supreme Court issued an opinion suspending Eugene lawyer Thomas J. Peterson from the practice of law for 60 days, effective July 26, 2010, for violations of RPC 1.15-1(a) and RPC 1.15-1(c) (trust account rules).
Peterson represented clients who were engaged in a boundary dispute with their neighbors. At a point during the representation, the clients paid Peterson $2,000, which he deposited into his trust account but withdrew the following day and deposited into his personal checking account. Some months thereafter, an overdraft on Peterson’s trust account caused the bar to initiate an investigation into his trust accounting practices.
Peterson acknowledged that he kept very poor trust account records, failed to maintain individual client ledgers and failed to reconcile his monthly trust account statements. As a result, he violated RPC 1.15-1(a), which requires that a lawyer maintain complete records of client funds. The court also found that Peterson violated RPC 1.15-1(a) and RPC 1.15-1(c) when he removed the $2,000 from his trust account and deposited the funds into his personal account without a written agreement with the clients authorizing him to do so. Those rules require client funds to be deposited into trust to be withdrawn only as they are earned or client expenses are incurred.
An additional allegation that Peterson engaged in dishonesty by knowingly converting the $2,000 to his own use was dismissed by the court after it found that there was not clear and convincing evidence that Peterson acted with the requisite mental state for such a violation.
DEBORAH L. ABERNATHY
10-month suspension (reciprocal discipline)
Effective June 24, 2010, the Oregon Supreme Court suspended Deborah Abernathy from the practice of law for 10-months. The suspension was reciprocal, based on discipline imposed on Abernathy by the Arizona Supreme Court in connection with two separate discipline matters.
In the first matter, Abernathy was found by the Arizona hearings officer to have neglected several client matters, acted incompetently, failed to maintain adequate communications with clients, charged excessive fees and failed to take steps to protect client interests upon terminating representation.
In a second matter, the Arizona hearings officer found that Abernathy had failed to safeguard client property and, upon terminating representation, to take reasonable steps to protect her client’s interests. After the client complained, Abernathy failed to cooperate with the investigation by the State Bar of Arizona.
In addition to the 10-month suspension, the Arizona Supreme Court ordered Abernathy to pay restitution of $4,676.
Abernathy was previously publicly reprimanded in Oregon, also on a reciprocal basis.
JAMES R. ECKLEY
Public reprimand (reciprocal discipline)
On July 8, 2010, the Oregon Supreme Court issued an order imposing a public reprimand against James R. Eckley. The public reprimand was reciprocal, based on discipline imposed on Eckley by the Arizona Supreme Court in connection with two separate discipline matters.
In both matters, Eckley was found by an Arizona hearings officer to have violated Arizona ethics rules when he negligently failed to safeguard client property, failed to disclose adequately a personal conflict of interest and failed to disclose the extent of his interest in law-related consulting services offered to the clients.
The Arizona court imposed censure as a sanction and placed Eckley on a two-year term of probation.
Eckley had no prior record of discipline in Oregon.
MICHAEL R. SHINN
Form B resignation
Effective July 8, 2010, the Oregon Supreme Court accepted the Form B resignation of Portland lawyer Michael R. Shinn. Shinn previously had requested review of a trial panel decision disbarring him. With the resignation, the court dismissed the request for review as moot. Shinn had been suspended by the court since June 5, 2009, pending the outcome of the disciplinary proceedings.
The pending proceedings concerned allegations that Shinn knowingly converted the funds of multiple clients, failed to properly handle and account for the funds of those clients and several others, failed to communicate with clients, neglected legal matters, failed to respond to requests for information from disciplinary authorities, engaged in conduct prejudicial to the administration of justice and pursued an appeal in violation of the instructions of his client.
Shinn was also accused of withdrawing funds from his lawyer trust account without first obtaining the approval of the Oregon State Bar, in violation of an earlier state supreme court order.
SCOTT M. SNYDER
Effective July 26, 2010, the Oregon Supreme Court suspended Portland attorney Scott M. Snyder for 30 days in a case involving Snyder’s representation of a personal injury client.
The client, a Florida resident, retained Snyder six months after he injured his back falling on an icy Portland sidewalk in front of a hotel. At the outset of the representation, the client sent Snyder his medical records, and Snyder promptly sent tort claims notices to three potential defendants. Snyder provided copies of these notices to the client.
Thereafter, Snyder did not reply to responses from the defendants or provide copies to the client. Nor did Snyder respond to inquiries from the client’s health insurer requesting information and asserting a recovery right for medical expenses it paid.
The client wrote Snyder some months later, sending updated medical records and asking Snyder to expedite his case, make demand on the hotel and provide a status report with projected time frames. Snyder did not expedite the case; he concluded that the client’s condition was not medically stationary. However, Snyder did not advise the client of his assessment or tell the client that he was not commencing settlement negotiations on the client’s behalf.
Snyder did not respond to subsequent client e-mails and faxes requesting a status report, and the client wrote Snyder expressing his anger at the lack of communication in the prior eight months. Snyder responded, providing his first status report of the case and advising for the first time that Snyder thought the claim against the primary defendant was weak. In response, the client terminated the representation.
The court found that Snyder violated both RPC 1.4(a) (“[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information”) and RPC 1.4(b) (“[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation”). By failing to apprise the client of the correspondence he had received from the hotel and the client’s health insurer, and by not responding to the client’s request for status reports when it was clear that the client thought Snyder had made a settlement demand on the hotel, Snyder failed to keep the client reasonably informed. Further, Snyder’s opinions about the case (that the client was not medically stationary, that demand was premature and that other injuries weakened the client’s case) were “precisely the kind of information that a client needs to know” to make informed decisions.
The court also found that Snyder violated RPC 1.15-1(d), which requires lawyers to promptly deliver to a client property the client is entitled to receive. The client reportedly asked Snyder to send a copy of the medical records back to him because he had misplaced his originals, but Snyder never responded. Snyder assumed that the client could recreate the file by asking the providers for new copies, but he never told the client to do so. Snyder eventually provided the client copies of the medical records, more than two years after the client’s first request.
In determining sanction, the court found that Snyder acted knowingly and that the client suffered actual injury (anxiety and uncertainty) as a result of his conduct. The court noted Snyder’s substantial experience in the practice of law as an aggravating factor; in mitigation, the court noted cooperation with the disciplinary proceedings, no prior discipline and the absence of a selfish or dishonest motive.