|Oregon State Bar Bulletin MAY 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.
A.E. BUD BAILEY
Effective Feb. 16, 2011, the disciplinary board approved a stipulation for discipline reprimanding Vancouver, Wash., lawyer Bud Bailey for violations of RPC 1.2(a) (failure to abide by a client’s decision whether to settle a matter) and RPC 1.4 (failure to keep a client reasonably informed and to communicate sufficiently to allow the client to make informed decisions).
Bailey and his firm undertook to represent current and former employees in a class action employment wage case against a bank that was subsequently decertified. After decertification, Bailey processed more than 200 individual claims against the bank. In so doing, Bailey spoke with a potential client by telephone who had previously filed a claim in the class action. Bailey then sent this client a fee agreement and engagement letter for his individual claim. Although the client never returned this agreement, Bailey understood from his conversation that the client had authorized Bailey to proceed with the client’s claim for damages.
Without confirming that a signed fee agreement was returned, and without further confirming with the client that he wanted Bailey to represent him, Bailey filed a complaint against the bank and made an offer of judgment that sought the full recovery of the client’s claim.
The defendant made a lump sum counteroffer for less than a full settlement of all of the client’s claims. Bailey attempted to contact the client in response to this counteroffer, but the client did not return the call. Shortly before the counteroffer’s expiration, Bailey rejected the counteroffer because he had no authority from the client to accept it.
Thereafter, the defendant made a second counteroffer which included full recovery for the client on his claim. Despite the fact that he did not consult with the client or obtain his permission to do so, Bailey accepted this second offer.
The stipulation recited that Bailey had previously been reprimanded for a personal-interest conflict and entering into business with a client. However, his conduct was mitigated by the absence of a dishonest motive and remorse.
SCOTT J. RUBIN
Admitted pro hac vice in Oregon
By order dated Feb. 16, 2011, the disciplinary board approved a stipulation for discipline whereby Pennsylvania attorney Scott J. Rubin was publicly reprimanded for violating RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal) and RPC 8.4(a)(4) (engaging in conduct prejudicial to the administration of justice). Rubin, a Pennsylvania lawyer, was admitted to appear pro hac vice before the Oregon Public Utilities Commission (“PUC”) and was thus subject to Oregon’s disciplinary authority with respect to his conduct while admitted here. RPC 8.5(a); UTCR 3.170(1)(d).
Rubin represented a labor union that was an intervening party in a matter pending before the PUC. The PUC entered a protective order that permitted parties responding to discovery requests to designate and label documents produced to the other parties as “confidential.” The protective order allowed a party to challenge by motion the designation of any document as confidential. The order prohibited all persons who obtained information designated as confidential from using or disclosing it for any purpose other than to conduct the PUC matter. Rubin and an outside expert hired by the union both agreed to be bound by the protective order.
Pursuant to the protective order, a party provided the union a document designated as confidential that named the party’s largest shareholders and the number of shares each held. The document identified public filings with the SEC as the source of the shareholder information. Rubin concluded that the shareholder information was not confidential, but he did not challenge the designation of the document as confidential or otherwise seek relief under the protective order. Two days after receiving it, Rubin described the document and the shareholder information it contained in a motion he filed with the Pennsylvania Public Utilities Commission. He also filed an affidavit of the union’s outside expert further describing the shareholder information contained in the document.
Based on these disclosures, the PUC found that the union violated the protective order. The PUC revoked the union’s status as an intervening party in the matter.
The stipulation cited Rubin’s cooperative attitude toward the disciplinary proceedings and his lack of prior discipline as mitigating factors.
MARSHA M. MORASCH
1-year suspension, 6 months stayed, with conditions, 2-year probation
Effective Feb. 17, 2011, the Oregon Supreme court accepted a stipulation for discipline from Portland attorney Marsha M. Morasch. Pursuant to the stipulation, Morasch was suspended for a period of one year with six months stayed pending the completion of a two-year probation, and conditioned upon Morasch taking certain remedial actions during the imposed period of suspension.
Morasch stipulated that in 2008 she was referred to the State Lawyers Assistance Committee (SLAC), which determined her to be appropriately within its jurisdiction. Thereafter, Morasch failed to comply with certain treatment and reporting requirements required by SLAC. When SLAC reported Morasch’s noncompliance to the disciplinary counsel’s office, Morasch failed to respond to disciplinary counsel’s office’s inquiries.
Morasch stipulated that her conduct violated RPC 8.1(a)(2) (knowingly failing to respond to a lawful demand for information from a disciplinary authority) and RPC 8.1(c) (failure to cooperate with SLAC). The sanction was determined in consideration of Morasch’s substantial experience in the practice of law, that she committed multiple offenses and engaged in a pattern of misconduct. The stipulation also considered that Morasch had no prior disciplinary record, did not act with a dishonest or selfish motive and had personal or emotional problems.
OSB # 933420
By order dated Feb. 24, 2011, the disciplinary board approved a stipulation for discipline whereby Portland attorney Jack Levy was publicly reprimanded for violating ORS 9.527(2) (conviction of a misdemeanor involving moral turpitude). The stipulation followed Levy’s plea of guilty to and conviction in circuit court of one count of class A misdemeanor harassment (intentionally harassing or annoying another by subjecting that person to offensive physical contact that consists of touching the sexual or other intimate parts of the person). ORS 166.065(1)(a)(A), (4). The conviction stemmed from Levy’s conduct toward another lawyer at a law firm office party.
Levy’s substantial experience in the practice of law was cited as an aggravating factor. His cooperative attitude in the bar proceedings, remorse, lack of prior discipline and the imposition of other penalties (including a 24-month bench probation) were cited as mitigating factors.
ANTONIO PORRAS JR.
Effective March 8, 2011, a trial panel of the disciplinary board disbarred lawyer Antonio Porras, Jr., formerly of St. Helens, for violations of RPC 8.4(a)(2) (engaging in criminal conduct reflecting on the lawyer’s honesty, trustworthiness or fitness as a lawyer) and RPC 8.4(a)(3) (dishonesty and misrepresentation). Porras did not respond to the bar’s formal complaint, and therefore an order of default was entered against him.
The misconduct for which Porras was disbarred occurred while he was the executive director of the Columbia County Indigent Defense Corporation (CCC). The panel found that while Porras was the executive director, he knowingly and intentionally misappropriated funds of the CCC. The panel found that Porras overpaid himself $39,169.48 belonging to the CCC while apparently underpaying other contract attorneys with the corporation. The panel also found that Porras made intentional misrepresentations in an attempt to actively cover up his misappropriation of CCC money.
In disbarring Porras, the trial panel considered the following aggravating factors: Porras’s dishonest or selfish motive; his pattern of misconduct; his multiple offenses; and his substantial experience in the practice of law since his admission in 1992. The trial panel also considered the following mitigating factors: Porras had no prior record of discipline; he disclosed his defalcations in a letter to the CCC treasurer; and he agreed to make restitution by entering into an unsecured promissory note in favor of CCC.
LYNN E. ASHCROFT
Effective March 17, 2011, Lynn E. Ashcroft of Portland was suspended from the practice of law for 60 days pursuant to a stipulation for discipline that described conduct prejudicial to the administration of justice in violation of RPC 8.4(a)(4).
In 2008, Ashcroft was a circuit court judge in Marion County. He presided over initial appearances in a criminal case in which the defendant was charged with drug offenses. Subsequent to those appearances but before trial, Ashcroft was in a public eating establishment and purchased food and drink for a group of patrons that included the defendant and her acquaintances. Ashcroft did not recall the criminal case when he paid the restaurant tab, but the defendant reminded him of it before he left the restaurant.
Thereafter, Ashcroft directed that the defendant’s criminal case be assigned to Ashcroft for trial. Some months later, the defendant waived a jury and the case came to trial before Ashcroft who failed to disclose to the parties or their counsel that he had purchased food and drink for the defendant while her case was pending. Ashcroft found the defendant not guilty of all charges and asserts that his decision was based solely on factors related to the prosecution. However, the state presented evidence and authority that supported a guilty finding on at least one charge.
Some weeks thereafter, the defendant initiated contact with Ashcroft, who then engaged in a personal relationship with her. Ultimately, the Oregon Department of Justice investigated Ashcroft and his relationship with the defendant. Without admitting guilt or fault in any respect, Ashcroft resigned his judicial position.
The stipulation recited that Ashcroft had no prior disciplinary record, fully cooperated with the bar including initiating his own report of the matter to the bar, and was remorseful for his conduct.
DAVID E. GROOM
On March 25, 2011, the Oregon Supreme Court dismissed a complaint against David Groom that alleged he violated RPC 1.4(a) and (b) (failure to adequately communicate with a client).
Groom represented a client on the appeal of a habeas corpus matter. At the time, the client had already served 8 months of a 13 month sentence, and Groom warned the client that the appeal would likely be dismissed as moot if he was released from custody before the appeal was decided.
Meanwhile, the client had hired another attorney to pursue a civil action seeking money damages for unlawful imprisonment. The civil attorney worried that if the habeas appeal was dismissed leaving the underlying habeas judgment intact, that judgment would have a preclusive effect on the client’s civil action. The civil attorney thus contacted Groom and asked him — in connection with the state’s motion to dismiss the habeas appeal — to ask the Court of Appeals to vacate the underlying habeas judgment. The civil attorney provided Groom with legal authority to support such a request. Groom agreed to consider the request.
At some point, however, Groom decided that he would not move to vacate. He did not notify the civil attorney of that decision until after the habeas appeal had been dismissed for mootness. Because the deadline for asking for reconsideration had passed, the civil attorney believed that it was now too late to request vacatur and complained to the bar.
The trial panel found that Groom had failed to adequately communicate his decision not to pursue vacatur and thereby violated RPC 1.4(a) and (b). The Oregon Supreme Court reversed and analyzed Groom’s conduct in light of three factors relevant to RPC 1.4: the length of time between his decision and his communication of that decision to the client; whether he had failed to respond promptly to the client’s reasonable requests for information; and whether his delay in communicating was likely to prejudice the client.
The court agreed that because Groom had agreed to consider the possibility of asking for vacatur, he was required to inform the civil attorney (and therefore the client) when he decided not to do so. However, the bar failed to prove that Groom’s delay in communicating that decision was unreasonable, particularly since it was unclear that the time period for requesting vacatur had expired when the communication was finally made.
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: Abram Nathaniel Bowman, Kaci Young Bowman, Jeffery David Bradley, Anthony Stephen Broadman, Teresa Lynn Campbell, Dennis Michael Charney, Colin Jeffrey Folawn, Steve Curtis Franklin, Bruce Frederick Howell, Steven Jerome Jager, John A Kesler III, Claudia Lyn Kilbreath, Brian Alan Knutsen, Thomas Arthur Lenz, Bruce Wallace Lorber, John Stewart Poulos, John McLean Riley III, Lillian Louise Salminen, Robert Craig Salminen, Mark Dana Schedler, Kiera Monique Silva, Marnie Hillary Bergman Silver, Dalynne Rene Singleton, Caroline Jane Swindell, Devon Marie Thurtle Anderson and Marianna Valasek-Clark.
House Counsel: Peter Alfred Brandt.
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:
Maureen Flanagan of Lake Oswego, #990488. Maureen Flanagan transferred her Oregon membership to inactive status in 2005 because she was living and practicing law in Illinois. She was admitted to the Illinois bar in 2004, and from November 2006 to October 2010, she was in-house counsel for AMCO Bank, N.A., of Rockford, Ill. Flanagan recently returned to Oregon and has accepted a position as house counsel for West Coat Bank.
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.