Oregon State Bar Bulletin OCTOBER 2013
Note: More than 14,800 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.
D. SCOTT SUMMER
Effective April 3, 2013, the disciplinary board disbarred Idaho lawyer D. Scott Summer for the following: violations of RPC 3.1 (knowingly asserting a position without basis in law or fact); RPC 3.3(a)(1) (knowing false statement to a tribunal); RPC 3.4(c) (knowing disobedience under the rules of a tribunal); RPC 8.1(a)(1) (knowing false statement in connection with a disciplinary matter); RPC 8.1(a)(2) (knowing failure to respond to a demand for information from a disciplinary authority); RPC 8.4(a)(3) (dishonesty or misrepresentation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Summer represented a plaintiff on a claim of medical malpractice. Summer failed to timely respond to the defendants’ motion for summary judgment. On the date set for a hearing on the motion, Summer failed to appear, but he filed an affidavit pursuant to ORCP 47E, in which he swore under penalty of perjury that he had consulted with and retained an unnamed qualified expert who was available and willing to testify to admissible facts and opinions to establish a genuine issue of material fact. Summer knew his ORCP 47E affidavit contained false and misleading statements. The defendants’ motion for summary judgment was denied based upon the affidavit and a date set for trial.
Summer was previously suspended 180 days for dishonest and criminal misconduct.
MARK R. MALCO
Pursuant to a stipulation for discipline approved by the Oregon State Bar Disciplinary Board on May 1, 2013, Seal Rock lawyer Mark R. Malco was publicly reprimanded for violating RPC 1.4(a) (duty to communicate adequately with client).
Malco represented a client who wished to obtain information from a Maryland lawyer concerning the Maryland probate of the client’s deceased mother. After reviewing the client’s documents and researching Maryland law, Malco determined that the matter would require significantly more work than he anticipated. Malco did not keep his client informed about the status of the matter and for over two months he failed to respond to the client’s letters and telephone calls seeking information about his efforts and the status of the matter.
ERIC J. FJELSTAD
Effective July 12, 2013, Eric J. Fjelstad was suspended for 30 days for violations of the following: RPC 1.4(a) (failure to communicate with a client); RPC 1.15-1(a) (failure to maintain client money in trust and maintain adequate records of it); RPC 1.15-1(d) (failure to return client property promptly upon request); RPC 3.5(b) (ex parte communication with the court); RPC 8.4(a)(4) (engaging in conduct prejudicial to the administration of justice); and RPC 5.3(a) (failure to supervise nonlawyer assistant).
In a stipulation for discipline accepted by the disciplinary board, Fjelstad admitted misconduct in two matters. In the first, Fjelstad represented a client in a construction lien matter. Fjelstad filed legal motions with the Multnomah County Circuit Courtex parte without providing notice or a copy of the motion to opposing counsel. In the second matter, in the course of representing a client in an employment law matter, Fjelstad failed for several months to timely inform the client of his receipt of settlement proceeds, failed to deposit the funds in a lawyer trust account and failed to supervise his staff.
A trial panel suspended Springfield lawyer Rosemary Foster from the practice of law for 30 days for violating RPC 5.4(b) (improper partnership with a nonlawyer), RPC 5.4(d) (practicing law with a nonlawyer), RPC 5.5(a) (unlawful practice of law) and ORS 9.160(1) (practicing while not an active member).
On July 15, 2011, Foster was administratively suspended from the practice of law for failing to pay her malpractice insurance premium. Thereafter, in one matter Foster filed a pleading on behalf of herself and another person and identified herself as an attorney at law. Foster also held herself out as an Oregon lawyer on a website, in correspondence and in other documents.
On Sept. 1, 2011, Foster formed a limited liability partnership with a nonlawyer. The partnership’s principal business was the practice of law and the nonlawyer held an equal interest in the ownership and direction of the partnership.
The suspension will commence after Foster earns a score of no less than 85 on the Multistate Professional Responsibility Examination and her administrative suspension terminates.
DWIGHT P. BILLMAN
On July 26, 2013, the disciplinary board approved a stipulation, effective Sept. 24, 2013, suspending Salem lawyer Dwight P. Billman for 30 days for violating RPC 1.2 (failing to consult with and abide by a client’s decision concerning the objective of representation), RPC 3.3(a)(1) (make a false statement of fact to a court) and RPC 8.4(a)(3) (conduct involving misrepresentation).
Billman undertook to represent a client (Mother) in a domestic relations matter. Before then the parties had stipulated to Mother having parenting time while the child’s father (Father) had temporary custody. Billman knew that Mother wanted to be the custodial parent.
When Mother did pay Billman as provided in the fee agreement, Billman informed her that he would not represent her at the upcoming hearing and sent her a motion to withdraw. Billman did not file the motion, but instead decided to assist Mother.
The day before a scheduled hearing to determine custody, Father’s lawyer sent a stipulated judgment providing for Father to have sole legal and physical custody and for Mother to have limited parenting time during the following year. Later that day, Billman made a counterproposal and Father’s lawyer sent another stipulated judgment allowing for Mother to accelerate her parenting time. Billman left a telephone message for Mother about the negotiations, but never spoke with her and never obtained her authority to resolve the matter.
At the hearing the following day, Billman represented to the court that he had run the terms of the settlement past Mother and that it was agreeable to her. Billman believed he was acting in Mother’s best interests. Nonetheless, he knew that Mother had not agreed to the settlement.
When Billman could not obtain Mother’s signature on the stipulated judgment, Father’s lawyer submitted a general judgment to the court which it signed. A motion to set aside that judgment was subsequently denied.
Effective Aug. 14, 2013, a trial panel suspended Portland lawyer Thomas Ifversen from the practice of law for one year for violating the following: RPC 1.3 (neglecting a legal matter); RPC 1.4(a) (failing to adequately communicate); RPC 1.4(b) (failing to explain a matter); RPC 8.1(a)(1) (misrepresentation in a Bar investigation); and RPC 8.4(a)(3) (conduct involving misrepresentation).
Ifversen represented a client and her two minor children in connection with injuries they sustained in a car crash. For the first two years, Ifversen pursued the matters and adequately communicated with his client. Thereafter, Ifversen failed to pursue the matters and failed to communicate with his client despite repeated inquiries from her. He failed to inform his client that the statute of limitations would run on her claims, and after he did not timely file a lawsuit on her behalf, he failed to inform her that the statute of limitations had run and she was barred from pursuing those claims. For an extended period thereafter, Ifversen made false representations to his client about the status of her and her children’s claims.
When the client complained to the bar, Ifversen made a false representation to the bar about the work he had performed on behalf of his client and her children.
PETER JOSEPH CARINI
On Aug. 15, 2013, the Oregon Supreme Court issued an opinion suspending Medford lawyer Peter J. Carini, effective Oct. 14, 2013, for 30 days for violating RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Over the course of two months, Carini failed to appear at a number of scheduled court proceedings in Josephine County Circuit Court. As a result, there was actual harm to the procedural functioning of the court and potential harm to Carini’s clients.
The court found that a 30-day suspension was appropriate where Carini had previously been disciplined for violating the same rule. All of the conduct at issue in this matter occurred either just before or during a 90-day probationary period imposed on Carini by a trial panel in the prior matter.