|Oregon State Bar Bulletin OCTOBER 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.
RHONDA LEE ANTELL
1-year suspension, 10 months stayed, 1-year probation
Effective June 14, 2010, the Oregon Supreme Court approved a stipulation for discipline between the bar and Beaverton lawyer Rhonda Lee Antell, pursuant to which Antell is suspended from the practice of law for one year, with 10 months of that suspension stayed pending a one-year term of probation.
As a result of problems in a personal relationship, Antell used the name of another person to send various electronic and voicemail communications of a harassing and indecent nature to others. This conduct ultimately led to Antell pleading guilty in King County, Wash., to two crimes: identity theft in the second degree and cyber stalking. In the stipulation for discipline, Antell admitted that her conduct violated RPC 8.4(a)(2) (criminal conduct adversely reflecting on honesty, trustworthiness and fitness) and RPC 8.4(a)(3) (dishonesty or misrepresentation).
During her disciplinary probation, Antell must comply with the terms of her probation in the King County criminal case, continue with certain treatment and cooperate with a supervising attorney from the State Lawyers Assistance Committee.
Effective July 26, 2010, the disciplinary board disbarred Salem attorney Keith Hayes for multiple violations of the Rules of Professional Conduct in connection with dozens of client matters, including: RPC 1.3 (neglect); RPC 1.4(a) & (b) (failure to adequately communicate with clients); RPC 1.5(a) (excessive fees); RPC 3.3(a)(1) & (4) (lack of candor to a tribunal); RPC 3.4(c) (disobeying court orders); RPC 8.1(a)(2) (failure to respond to disciplinary inquiries); RPC 8.4(a)(3) (misrepresentations); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
The trial panel found that Hayes had a prior history of discipline for similar misconduct; that he acted with a dishonest or selfish motive, engaged in a pattern of misconduct, committed multiple offenses, and that he had substantial experience in the practice of law.
D. RAHN HOSTETTER
On July 29, 2010, the Oregon Supreme Court issued an opinion suspending Enterprise lawyer D. Rahn Hostetter for 150 days, effective Sept. 27, 2010, for violating DR 5-105(C) and RPC 1.9(a) (former client conflict of interest) and RPC 8.4(a)(3) (conduct involving misrepresentation).
In the mid-1990s, Hostetter represented borrower in a series of loans from, and related transactions involving, a lender. On the borrower’s behalf, Hostetter prepared all of the documents associated with the transactions. In 2004, the borrower died and her daughter was appointed personal representative of the estate. Hostetter then undertook to represent the lender in collecting the outstanding loans he had made to the borrower during her lifetime. Eventually, the parties resolved the claims.
In a case of first impression, the court held that, under DR 5-105(C) and RPC 1.9(a), a former client conflict of interest exists even when the former client is deceased, as long as the former client’s interests survive death and are adverse to the current client in the lawyer’s subsequent representation. Based upon the record, the court concluded that the loan transactions and subsequent debt collection were significantly and substantially related and that the borrower’s surviving interests were materially adverse and patently in conflict with the lender’s interests during Hostetter’s subsequent representation of the lender. Under these circumstances, Hostetter violated DR 5-105(C) (for conduct prior to 2005) and RPC 1.9(a) (for conduct after 2004).
In a second matter, Hostetter represented the sellers in a real property transaction. During the course of the transaction, Hostetter had possession of a deed in lieu of foreclosure signed and notarized by the buyer covering four parcels of land. He took the signature page from that deed, attached it to a deed covering three of the parcels and recorded it, without the buyer’s consent or knowledge. This conduct violated RPC 8.4(a)(3).
In determining the appropriate sanction, the court noted that the conflict of interest violation was obvious and serious and that there were multiple aggravating circumstances, including a history of prior discipline.
PAMELA A. HARRISON
Form B resignation
Effective July 29, 2010, the Oregon Supreme Court accepted the Form B resignation of Eugene lawyer Pamela A. Harrison. At the time of resignation, the bar was pursuing a disciplinary proceeding in which Harrison was alleged to have violated RPC 1.3 (neglecting a legal matter), RPC 1.4(a) (failing to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information) and RPC 1.15-1(d) (failing to promptly render a full accounting of client funds). The bar also was investigating allegations that Harrison engaged in neglect, failed to communicate and collected a clearly excessive fee in another matter.
Harrison was admitted to practice in 1982. Her resignation recited that client files and records would be placed promptly
in the custody of the Professional Liability
Fund or with a number of Eugene lawyers.
Effective Aug. 3, 2010, a trial panel dismissed a complaint alleging that a lawyer violated DR 1-102(A)(3) (dishonest conduct), DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 7-110(B) (improper written ex parte contact) when the lawyer presented to the court for signature a form of Qualified Domestic Relations Order (QDRO) without prior notice to the opposing counsel.
The lawyer represented a wife in a dissolution proceeding involving no children and few assets. As a federal employee, the husband had a federal pension and a thrift savings plan. Pursuant to the terms of a general judgment entered in the dissolution, the pension was to be divided between the parties and the parties were to keep their other respective property. The lawyer did not conduct any discovery to determine the value of husband’s accounts.
Thereafter, the lawyer consulted with an accountant about the preparation of the QDRO to divide the pension plan. During these discussions, the lawyer decided that an additional QDRO would be prepared to divide ownership of the thrift savings plan. The lawyer then submitted both QDROs to the court for signature, without notifying opposing counsel of his submission, or of the additional QDRO. Once signed by the court, the lawyer sent copies of both QDROs to opposing counsel by mail.
The bar alleged that lawyer acted dishonestly and engaged in impermissible ex parte contact when he submitted the second QDRO to the court knowing that it divided an asset that was awarded to the husband in the general judgment. The trial panel disagreed, finding that sending the signed QDROs to opposing counsel immediately after they were signed by the court was sufficiently prompt delivery under the then-applicable ethics rule (note: the rule has since been changed) and was not dishonest conduct, particularly when the husband had an opportunity to, but did not, file a motion to set the QDROs aside.
TODD S. HAMMOND
Effective Aug. 16, 2010, the disciplinary board approved a stipulation for discipline publicly reprimanding Salem attorney Todd Hammond for violations of DR 2-106(A) and RPC 1.5(a) (charging and collecting an illegal fee).
In November 2004, Hammond undertook to represent a client in matters related to a Federal Employees’ Compensation Act claim with the Office of Workers Compensation Programs (“OWCP”). Pursuant to a written fee agreement, the client paid Hammond a nonrefundable retainer, earned upon receipt.
In March 2006, pursuant to a written fee agreement, the client paid Hammond a second nonrefundable retainer, earned upon receipt, for further assistance with his injury claim.
Federal statutes required that Hammond obtain approval from the OWCP before he collected the two fees from his client. His failure to do so was a violation of DR 2-106(A) (first fee) and RPC 1.5(a) (second fee).
SCOTT P. BOWMAN
One-year suspension, 8 months stayed, 2-year probation
Pursuant to a stipulation for discipline approved by the Oregon Supreme Court, Milwaukie attorney Scott P. Bowman was suspended from the practice of law for one year, with eight months of the suspension stayed pending a two-year term of probation. The four months of imposed suspension commence Sept. 6, 2010.
The stipulation for discipline recites a number of disciplinary rule violations, including: Bowman practicing law for a short period when he was suspended for nonpayment of his bar membership assessment (RPC 5.5(a), ORS 9.160(1)); failure to file timely income tax returns (DR 1-102(A)(2), RPC 8.4(a)(2)); failure to cooperate with a bar investigation (RPC 8.1(a)(2)); failure to communicate with a client (RPC 1.4(a)); improper handling of client funds (RPC 1.15-1(a), (c)); improper provisions in a fee agreement requiring the client to waive claims prospectively and to commit to binding arbitration without informed consent (RPC 1.8(h)(1), (3)); and sharing fees with a non-lawyer (RPC 5.4(a)). Those violations related to Bowman’s interaction with a client arose from his relationship with a company that offered mortgage loan modification services to members of the public and Bowman’s retainer agreement with one such client.
During Bowman’s term of probation, he will participate in a course of CLEs focusing on law office management, implement recommendations made by practice management specialists, work with a practice monitor and continue with treatment as directed by health care providers, among other probationary conditions.
FREDERICK T. SMITH
Effective Sept. 13, 2010, the Oregon Supreme Court suspended Portland attorney Frederick T. Smith for 90 days for misconduct during an employment dispute.
Smith’s client was employed by a nonprofit corporation that helped patients register for the Oregon Medical Marijuana Program. After a dispute at work, the client consulted with Smith; she also expressed her concern about how the corporation’s current director was managing its operations. In response, Smith researched the corporation’s status and obtained from the secretary of state’s office a certificate that incorrectly stated that the corporation had been administratively dissolved for more than five years. In fact, the corporation had been dissolved for less than a month and could easily have been reinstated. Based on the inaccurate certificate, Smith concluded that all the corporation could legally do was to wind up its affairs.
Smith recognized — and advised his client — that she had no legal standing to assert that the corporation was being improper managed. However, Smith also advised that the current director had no legal authority to run the corporation — and that the client’s rights were therefore “equal” to the current director’s. Smith told the client that if she were to attempt to take over the corporation through “self-help,” he could defend her against any criminal or civil actions.
Thereafter, the client, Smith and some other individuals (including a locksmith) met at the corporation’s premises before business hours and entered the building. When the corporation’s employees arrived that morning, they found the premises open. The client announced that she was taking over management of the corporation and Smith misrepresented that he had a court order or written authorization from the attorney general allowing her to do so. Smith advised the client and her associates to desist the take-over attempt only after police arrived and corporation employees produced a lease showing that the premises were in the name of the current director.
By advising his client that she could take physical control of the corporation’s premises and operations — and by accompanying her in her attempt to do so — Smith asserted a frivolous legal position, in violation of RPC 3.1. His misrepresentations to the corporation’s employees and the police violated RPC 4.1(a) and RPC 8.4(a)(3). Finally, by trespassing on the corporation’s premises, refusing to leave when asked, and advising his client to trespass, Smith committed a criminal act that reflected adversely on his fitness as a lawyer in violation of RPC 8.4(a)(2).
Although Smith had no prior record of discipline, the court concluded that his mental state (knowing or intentional) and the actual injury caused to the corporation and its patients warranted a 90-day suspension.
ROBERT S. SIMON
Effective Aug. 16, 2010, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland lawyer Robert Simon for violations of DR 2-106(A) (charging a clearly excessive fee) and ORS 9.160 (represent self as authorized to practice law when not an active member of the bar).
During a previously imposed term of disciplinary suspension, Simon occasionally utilized an e-mail address that might have led others to believe that he was authorized to practice law. In addition, after his suspension, Simon billed for work performed during the suspension at his regular attorney rate. In addition to being excessive, the time entries created an impression that Simon was eligible to practice law at a time when he was not.
The stipulation recited that Simon acted negligently, and that his sanction was mitigated by factors including lack of a dishonest motive and cooperation with the bar.
CARTER A. DAUM
Effective Sept. 17, 2010, the disciplinary board approved a stipulation for discipline suspending Roseburg attorney, Carter Daum, for violations of: RPC 1.1 (competence); RPC 1.2(c) (counseling or assisting a client in illegal or fraudulent conduct); RPC 1.3 (neglect); RPC 1.4(a) (failing to keep a client informed or comply with requests for information); RPC 8.4(a)(3) (conduct involving dishonesty or misrepresentation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice) for his conduct in two bankruptcy matters.
In the first bankruptcy, Daum’s husband/wife clients were told at the meeting of creditors that they would need to repay the government stimulus funds they had utilized. Daum agreed to conduct research to determine whether these funds were an asset of the bankruptcy estate, but he failed to do so and failed to notify the clients.
After the meeting of creditors, the husband refused to participate further in the bankruptcy. Daum represented to the wife that her husband’s actions would have no impact on her case and assured her that he would complete her bankruptcy. Thereafter, Daum forwarded the wife’s certificate of completion for rule-mandated financial classes to the court, but did nothing to follow up with the court or monitor the file.
Months later, the wife learned that her bankruptcy case was still open. She made multiple attempts to contact Daum but he did not respond for several weeks. When he did, he surmised (without verifying) that the trustee or the court made a mistake. Thereafter, the wife asked Daum for some direction and clarification about the stimulus money, but he did not respond.
In the second bankruptcy, Daum represented husband/wife clients in a Chapter 7 proceeding. The wife had just completed medical school and was beginning her residency, with the help of a stipend from a local physicians’ association that paid some living expenses. Daum did not appreciate that this stipend was not a traditional student loan or convey to the trustee the importance of maintaining this benefit.
After reviewing the clients’ schedules, Daum was concerned that they did not have sufficient monthly obligations to qualify for a Chapter 7 discharge. Therefore, he added a figure to the clients’ petition and schedules for rental expense, even though he knew the clients paid no rent.
The wife met with Daum to finalize forms for filing, after having called several errors to his attention in the drafts. Daum represented that all of the errors had been corrected, but had not reviewed (and did not review) the forms before they were filed. He asked for the wife to sign the forms — under penalty of perjury — for herself and husband, and advised that it was permissible for her to do so. Daum gave her only the signature pages and she signed them as instructed.
When the clients received a discharge, the wife learned that she was no longer eligible for future stipend payments. She attempted to contact Daum multiple times, but he did not respond or take action to assist her.
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: Bridget Elizabeth Baker, Elizabeth F. Baker, Meredith Cavender Constant, Molly Siebert Eckman, Andrew Ramiro Escobar, Teresa Louise Foster, Bruce Henry Gieseman, Donald Luke Hansen, III, Ryan David Lapidus, Kevin Anthony Michael, Corin Scott Nies, Andrew Pearson Richards, Kevin Andrew Rosenfield, Darin Murl Sands, Phillip Aaron Spicerkuhn, David Brendan Starks, Erin O’Shea Sweeney, Walter Russell Swindell, William Harrison Walsh and Wayne Leroy Williams.