|Oregon State Bar Bulletin JULY 2011|
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.
JASON D. CASTANZA
On May 5, 2011, the Oregon Supreme Court issued an opinion suspending Eugene lawyer Jason D. Castanza for 60 days, effective July 4, 2011, for violating RPC 1.16(d) (failing to properly withdraw).
In the fall of 2006, Castanza undertook to represent a mother as guardian ad litem for her minor son. In December 2006, Castanza filed a lawsuit for personal injuries sustained by the minor. In mid-May 2007, with Castanza’s consent, the court scheduled trial for August 7, 2007.
In June 2007, Castanza decided to terminate his representation of mother and son. However, Castanza failed to allow his client sufficient time in which to employ another lawyer, made no attempt to postpone the trial date, failed to file a notice of change or withdrawal of attorney as required by UTCR 3.140(1), failed to respond to the defendant’s motion to dismiss the lawsuit, which was granted, and failed to respond to the defendant’s proposed general judgment and cost bill, resulting in the matter being dismissed with prejudice. Castanza also failed to inform his client that a motion to dismiss had been filed and granted, that a proposed general judgment and cost bill had been submitted and that a judgment for costs had been taken against her.
In affirming the trial panel’s decision, the court noted that although Castanza filed a request for appellate review, he did not file an opening brief. Because Castanza failed to frame any challenge to the trial panel’s decision, the court had no basis for disagreeing with that decision.
Form B resignation
Effective May 5, 2011, the Oregon Supreme Court accepted the Form B resignation of former West Linn attorney Meg Reinhold. At the time of her resignation, Reinhold had been charged with multiple violations of the Rules of Professional Conduct, including: RPC 1.15-1(a) (failure to maintain client funds in trust, failure to maintain complete trust account records); RPC 1.15-1(b) (depositing the lawyer’s own funds into trust); RPC 1.15-1(c) (withdrawing unearned funds from trust); RPC 8.4(a)(2) (criminal conduct reflecting adversely on honesty, trustworthiness or fitness); and RPC 8.4(a)(3) (dishonesty or misrepresentation).
Reinhold was temporarily suspended in March 2011, pursuant to BR 3.1, pending the disciplinary proceeding. Reinhold had no previous record of discipline.
G. VICTOR TISCORNIA II
Form B resignation
Effective May 5, 2011, the Oregon Supreme Court accepted the Form B resignation of Salem attorney G. Victor Tiscornia. At the time of his resignation, Tiscornia had been charged with multiple violations of the Rules of Professional Conduct in a number of client matters, including dishonest conduct in violation of RPC 8.4(a)(2) and (3) for his alleged mishandling of minor clients’ funds entrusted to him.
The resignation recited that Tiscornia’s client files have or will be placed in the custody of Eugene attorney Brian Cox.
J. STEFAN GONZALEZ
On May 10, 2011, the disciplinary board approved a stipulation suspending Salem lawyer J. Stefan Gonzalez from the practice of law for 4 months for violating RPC 1.4(a) (failing to communicate), RPC 4.2 (communicating with a represented person) and RPC 8.1(a)(2) (knowingly failing to cooperate in a bar investigation.)
In September 2008, Gonzalez undertook to represent a client in a workers’ compensation claim. Beginning in mid-December 2009, and until the end of April 2010, Gonzalez failed to keep his client reasonably informed about the status of the client’s legal matter and failed to promptly comply with the client’s reasonable requests for information.
In 2009, Gonzalez undertook to represent another client in workers’ compensation matters. The matters went to a hearing in October 2009. At the hearing, the client’s employer was represented by a lawyer. The following day, Gonzalez left voicemail messages for three key employees of the client’s employer asking them to contact him regarding whether, in light of testimony by one of them at the hearing, the client should return to work the following day. Gonzalez did not have the consent of the employer’s lawyer to communicate with the employees.
In the two matters described above and in two additional matters, Gonzalez also knowingly failed to respond to multiple inquiries from the bar.
The stipulation requires Gonzalez to apply under and comply with BR 8.1 (formal reinstatement) when he seeks reinstatement to active membership.
Effective May 17, 2011, a trial panel dismissed a complaint alleging that a lawyer violated RPC 1.15-1(d) (duty to promptly deliver and account for property of another), RPC 1.15-1(e) (duty to keep funds in dispute separate) and RPC 8.4(a)(3) (dishonesty and misrepresentation).
The accused lawyer represented the wife in a dissolution of marriage proceeding. A limited judgment entered in the proceeding awarded the marital home to the wife and an equalizing judgment to the husband. The parties later agreed to reduce the amount of the equalizing judgment. Before the reduced amount of the equalizing judgment was entered into a general judgment, the wife sought to refinance the house. In order to complete the refinancing, the lien for the equalizing judgment had to be satisfied. Pursuant to an oral agreement between the parties, the husband agreed to sign a satisfaction provided that funds sufficient to satisfy the judgment were forwarded to the wife’s lawyer to be held in a trust account. The husband contended that the funds ultimately were to be paid over to him. However, after the general judgment was entered, the wife’s lawyer applied the funds to pay the wife’s outstanding attorney fees. The bar contended that the wife’s lawyer: failed to provide to the husband a prompt accounting for the funds; failed to keep the funds separate until any dispute regarding entitlement to the funds was resolved; knowingly converted the funds; and knowingly permitted the husband to rely on a false expectation that the lawyer was holding the funds in trust.
At the disciplinary hearing, the husband’s attorney and the wife each testified that the oral agreement regarding the funds required the wife’s lawyer to hold the funds in trust until paid to the husband. The wife’s lawyer testified that the oral agreement regarding the funds required only that he hold the funds in trust until the general judgment was entered, restoring the husband’s lien, and that, after the general judgment was entered, the funds were available to the wife to be applied to her outstanding fees. The trial panel concluded that the bar did not meet its burden of proving by clear and convincing evidence that the oral agreement regarding the funds required the wife’s lawyer to hold the funds in trust for eventual payment to the husband.
On May 24, 2011, the disciplinary board approved a stipulation reprimanding Lake Oswego lawyer Angela Stewart for violations of: RPC 1.4(a) (failure to keep a client reasonably informed about the status of a matter); RPC 1.4(b) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions); and RPC 1.7 (current client conflict of interest).
Stewart’s violations arose from her representation of an insurance company and its insured, who had been named as responsible parties by the DEQ for contamination from an underground storage tank at their former residence. The insurance company accepted the tender of the defense of the insured’s claim with a reservation of rights and assigned the defense to Stewart — who was an inhouse employee of the insurance company. However, through an office error, Stewart did not disclose to the insured that she was employed by the insurer or obtain the insured’s informed consent to the representation, confirmed in writing. The insured were personally represented in the DEQ matter by their own attorney, and Stewart was made aware of this fact early in the representation. Stewart was also requested by the insured’s attorney to inform him of certain information related to the investigation of the property.
Prior to tendering the claim, the insured had retained the services of an environmental engineering company to assess the situation at their former residence. In part because of this pre-existing relationship, Stewart formed the mistaken belief that the engineer would communicate with the insured and their attorney during the pendency of her representation. Accordingly, Stewart had little or no communication with the insured or their attorney for a year. During that period, Stewart failed to notify the insured or their attorney of investigation results or corrective action plans for remediation that the engineer suggested to her. In addition, Stewart did not explain whether or how these findings and recommendations might affect the insured’s responsibilities to DEQ. At least one of the corrective plans had the potential to call the insured’s coverage into question.
The stipulation recited that Stewart acted negligently, rather than knowingly or intentionally, in both failing to communicate with the insured and in engaging in the conflict, and that her sanction was mitigated in part by her lack of prior discipline, the absence of a dishonest or selfish motive, and her cooperation with the bar.
ANTHONY ROBERT LOPEZ
OSB # 085345
In a reciprocal discipline matter from California, the Oregon Supreme Court suspended Anthony Robert Lopez for nine months effective June 6, 2011. Lopez and the State Bar of California had previously stipulated to facts involving seven separate client matters and one advertising matter, which the Oregon court reviewed in light of the Oregon Rules of Professional Conduct.
In representing clients and minor children in personal injury actions, Lopez settled the children’s claims and collected his fee without obtaining court approval, as required by California law; and in one case, he delayed distributing the proceeds for over a year and charged a fee that exceeded local court guidelines. This conduct violated Oregon RPC 1.15-1(d) (failing to promptly deliver client funds); RPC 1.5 (collecting an illegal fee); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
After settling a personal injury claim, Lopez distributed settlement funds to his client but failed to account for two liens, which he did not pay for over a year. Lopez’s conduct violated RPC 1.4(b) (failing to explain a matter sufficiently for a client to make informed decisions) and RPC1.15-1(d) (failing to promptly pay client funds due to a third party).
Lopez failed to notify another personal injury client of written settlement offers and, when he disbursed settlement proceeds to a lien-holder, he attempted to pay one-quarter of the amount owed with a check noting “Full and Final Satisfaction.” Lopez did not satisfy the lien for over a year. Lopez’s conduct violated RPC 1.4(a) (failing to keep a client reasonably informed), RPC 1.4(b) and RPC 1.15-1(d).
In settling a personal injury matter for three clients, Lopez recovered less than their total medical bills. When the medical providers refused to reduce their bills, Lopez did not negotiate further with them. Lopez’s lengthy delay before filing an interpleader action to resolve the competing claims violated RPC 1.1 (failing to provide competent representation).
In two separate client matters, Lopez failed to sufficiently explain to non-English-speaking clients how their settlement funds would be disbursed and the amount that each client would receive, in violation of RPC 1.4(b). Lopez also aired a Spanish language radio advertisement containing a false or misleading statement about expected recoveries in auto injury cases, in violation of RPC 7.1(a)(2) (communication intended or reasonably likely to create a false or misleading expectation about the results a lawyer can achieve).
The court found that Lopez acted knowingly with respect to most of these violations and that his clients suffered actual injuries. Aggravating factors included: prior discipline imposed in California for his failure to maintain client funds in trust and to properly account for client funds; multiple offenses; a pattern of misconduct; substantial experience in the practice of law (20 years in California); and vulnerability of potential clients. In mitigation, the court noted that Lopez was disciplined in California.
RANDY R. RICHARDSON
Effective June 20, 2011, the Oregon Supreme Court disbarred former Portland lawyer Randy Richardson for violations of: RPC 1.1 (failing to provide competent representation); RPC 1.2(a) (assisting a client in illegal conduct); RPC 1.7(a)(1) (representation of parties directly adverse to one another); RPC 1.7(a)(2) (representation of parties with conflicting interests); RPC 8.4(a)(2) (criminal conduct reflecting adversely on fitness to practice); and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation).
Richardson represented an elderly woman who was terminally ill and her estranged nephew in a transaction that transferred the woman’s home and only asset to the nephew for no consideration, at a time when the woman was not mentally competent to engage in such a transaction. For their activities, Richardson and the nephew were convicted of felony theft and misdemeanor obtaining execution of documents by deception.
Richardson’s conduct was aggravated by a number of factors including: the illegality of his conduct; his prior disciplinary record; his refusal to acknowledge the wrongfulness of his conduct; the vulnerability of the victim; his indifference to making restitution; and his substantial experience in the practice of law.
STEVEN B. JOHNSON
Effective May 26, 2011, the Oregon Supreme Court disbarred Steven B. Johnson, pursuant to BR 3.5, the reciprocal discipline rule, following Johnson’s December 2010 disbarment in Hawaii, where he resides.
Johnson practiced law in Oregon for several years before moving to Hawaii and becoming admitted there in 2005. The Hawaii disbarment was based on findings that Johnson: failed to disclose to the Hawaii Board of Bar Examiners when he applied for admission in that state in 2004-2005 that disciplinary complaints had been made about him and were then pending in Oregon; and that he thereafter knowingly and falsely represented to the Hawaii Supreme Court in 2007 that he had in fact disclosed the Oregon complaints to the Hawaii admissions authorities. Johnson was found to have violated the Hawaii equivalents of RPC 3.3(a)(1) (false statement to a tribunal), RPC 8.1(a)(1) (false statement on a bar application), RPC 8.1(a)(2) (failure to disclose a material fact in a bar application), RPC 8.4(a)(1) (violation of a disciplinary rule) and RPC 8.4(a)(3) (dishonesty and misrepresentation).
In light of the Hawaii disbarment, the Oregon State Professional Responsibility Board sought reciprocal disbarment here. Johnson did not appear or contest that recommendation.
KEVIN T. LAFKY
On May 27, 2011, the disciplinary board approved a stipulation suspending Salem lawyer Kevin T. Lafky from the practice of law for four months, effective Aug. 27, 2011, for violating RPC 1.7(a)(2) (lawyer self-interest conflict), RPC 1.8(a) (business transaction with a client), RPC 1.15-1(a) (failing to deposit funds in trust, and failing to maintain records), RPC 1.15-1(b) (improper co-mingling) and RPC 1.15-1(c) (failing to maintain client funds in trust.)
Between 1989 and 2006, Lafky represented a client in various legal matters. The two were also friends. In 2005, Lafky and the client entered into business transactions together. Based upon their current and prior attorney-client relationship, and his perception of the situation, the client had a reasonable expectation that Lafky was representing him in the transactions. Lafky did not believe he was representing the client in the transactions, but failed to ensure that the client understood that fact. Before entering into the transactions, Lafky failed to make the appropriate disclosures and failed to obtain the client’s consent, confirmed in writing.
Between 2006 and 2008, Lafky negligently failed to properly administer his lawyer trust account. He failed to maintain complete records of the funds in the account and maintained in the account his own funds in excess of what he needed to pay bank service charges or minimum balance requirements. Lafky deposited into his lawyer trust account proceeds from the settlement of clients’ legal matters. Lafky then immediately withdrew his portion of the settlements without ascertaining that the deposits had cleared the banking process and the funds were available, thereby drawing on funds in the trust account that belonged to other clients. Lafky also withdrew funds from his lawyer trust account when he had not yet earned some or all of those funds, and failed to deposit client funds into his lawyer trust account. No actual injury or loss resulted to clients or others from Lafky’s improper management of his trust account.
Effective June 13, 2011, a trial panel dismissed a complaint alleging that a lawyer violated RPC 3.3(a)(1) (knowingly make a false statement of fact or law to a tribunal), RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on a lawyer’s fitness) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
The lawyer and his former firm got into a dispute about whether, pursuant to a settlement agreement signed when the lawyer left the firm, the lawyer was required to share with the firm attorney fees he received in representing a client. In support of a motion for summary judgment filed in litigation between the firm and the lawyer, the lawyer executed and filed with the court a declaration in which he made numerous representations about the client matter and the legal services rendered in connection with that matter. The bar alleged that at the time the lawyer made and filed the declaration, he knew that three of the representations he made in it were false.
The trial panel dismissed charges regarding two of the representations because the bar did not present clear and convincing evidence that the representations were false. Although the trial panel concluded that the third representation was false, it nonetheless dismissed charges regarding that representation because the bar did not present clear and convincing evidence that the lawyer knew the representation was false at the time he made it.
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: Lisa Marie Batey, Stephanie Lee Beers, Mona Jane Geidl Gonzales, Steven J Kelley, Tammi Michele Kipp, Michael Louis Krashin, Jon Steven Rand, Nicole Erin Rappaport, Bhree Roumagoux.
House Counsel: William E. Hendricks III.
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:
Amy L. Muenchrath of Coquille, #973463. Amy Muenchrath, admitted in Oregon in 1997, transferred to inactive status in 1998, because she was not practicing law or living in Oregon at the time. From 2005 until March 2011, Muenchrath provided contract services to the Coos County Circuit Court, administrating the Family Court Facilitation program for Coos County. She intends to return to the practice of law upon reinstatement.
John W. Walker of Moscow, Idaho, #733145. John W. Walker transferred to inactive status in 1974, after his admission in Oregon the prior year. Since October 1973, Walker has practiced law in Moscow, Idaho, most recently under the professional corporation name of John W. Walker, P.A. He seeks reinstatement in order to handle Oregon matters on a limited basis.
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.