Oregon State Bar Bulletin AUGUST/SEPTEMBER 2015
Bar Actions - Discipline
Note: More than 14,900 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.
MARK O. COTTLE
60-day suspension, all stayed, 2-year probation
Effective June 1, 2015, the disciplinary board approved a stipulation for discipline suspending Sherwood lawyer Mark Cottle for 60 days for violations of: RPC 1.15-1(b) (the deposit of personal funds into a lawyer trust account for reasons other than paying service charges or meeting minimum balance requirements); RPC 1.15-1(c) (failure to deposit and maintain client funds in trust); and RPC 5.3(a) (failure to supervise non-lawyer employees). The entirety of the 60-day suspension is stayed pending Cottle’s successful completion of a two-year probationary term, focusing on improved practice management, including proper trust account practices.
As the managing shareholder of his law firm, Cottle had control and custody over the firm’s lawyer trust account, oversaw firm operations, was responsible for the manner in which the firm handled client money and had direct supervisory authority over the nonlawyer staff employed by the firm.
On Oct. 17, 2014, Cottle directed law firm staff to deposit a check pertaining to a client’s house sale, along with two other clients’ checks, into his lawyer trust account. The law firm staff did not complete the deposit and Cottle did not verify that the deposit had been completed.
On Oct. 30, 2014, Cottle wrote a check from the trust account for legal work on behalf of the client whose funds were included in the intended deposit. The bank returned the check for insufficient funds on Nov. 3, 2014. On Nov. 4, 2014, Cottle transferred his own funds into the lawyer trust account to correct the depositing error.
The stipulation acknowledged that Cottle’s actions were negligent and that any potential injury was short lived, primarily because Cottle immediately attempted to rectify the overdraft. However, Cottle’s negligent actions were part of a pattern of misconduct that, when combined with his prior discipline for similar misconduct, justified the imposition of a suspension, particularly in light of his substantial experience in the practice of law.
Probation was deemed appropriate because the adoption and continuation of better practices by Cottle would best serve the purpose of protecting clients, the public and the legal system. Cottle will be required to reconcile his bank accounts regularly, participate in monthly audits and attend additional CLEs emphasizing law practice management and trust account practices.
JOHN C. MOORE
OSB # 920998
Effective May 14, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Lake Oswego attorney John Moore for violations of RPC 3.4(b) (offering witness improper inducement) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Moore represented a husband in divorce proceedings against his wife, and also represented the husband in a criminal case arising out of a domestic incident between him and his estranged wife.
In a series of communications with the opposing party/victim wife, Moore offered that she could have the marital residence in the divorce proceedings in exchange for facilitating dismissal of the criminal charges against his client, making her receipt of the residence contingent on the criminal charges against his client being dropped. The wife did not appear for the criminal trial, and the case against Moore’s client was dismissed.
The stipulation recited that Moore’s conduct was aggravated by his substantial experience in the practice of law, but mitigated by factors including the absence of a dishonest motive; cooperation with disciplinary proceedings and remorse.
JOHN P. SALISBURY
Effective June 9, 2015, the disciplinary board approved a stipulation for discipline that publicly reprimanded former Clatskanie lawyer John Salisbury following a one-year probation, for violations of RPC 1.7(a)(2) (lawyer self-interest conflict) for his actions in connection with two female clients.
In one matter, the client retained Salisbury to represent her in a pending child custody dispute regarding her two young daughters in the state of Washington and in an Oregon proceeding regarding custody of her infant son. At the time Salisbury was hired, the client had already signed a safety order/agreement with Oregon DHS regarding her son, was involved in an outpatient program and was prohibited from drinking.
Shortly after the representation began, Salisbury started texting personal messages to the client of an intimate nature, unrelated to his representation. Some of the texts Salisbury sent the client invited her to join him for drinks, or sit with him at a bar while he drank. The client did not accept Salisbury’s invitations but felt she could not terminate the communications for fear Salisbury would drop her case and she would be without representation.
In a second unrelated matter, Salisbury represented a client in a probate proceeding in Clatsop County. The client was a beneficiary of an estate that held multiple pieces of real property. Salisbury met the client in Astoria to sign papers for the probate and then drive around to view some of the properties. Salisbury purchased alcohol for the client, notwithstanding Salisbury’s awareness that she was prohibited from consuming alcohol as a term of a criminal probation. Salisbury made verbal and physical advances, which the client refused, and Salisbury desisted.
Salisbury acknowledged that his texts and requests to both clients that they engage in conduct to their detriment for his personal benefit created a personal conflict of interest.
The stipulation recited that Salisbury’s conduct was aggravated by the following: a selfish motive; a pattern of misconduct; multiple offenses; vulnerable victims; and his substantial experience in the practice of law. In mitigation, Salisbury had no prior relevant discipline; did not act with a dishonest motive; was suffering personal and emotional problems that were exacerbated by alcohol use; cooperated fully in the bar’s investigation of his conduct; and remorse.
As part of his stipulation, Salisbury underwent a substance abuse evaluation and successfully complied with a treatment program monitored by the State Lawyers Assistance Committee.
DREW A. HUMPHREY
By order dated June 12, 2015, the disciplinary board publicly reprimanded Drew Humphrey for violating RPC 4.2 (communicating with a represented person on the subject of the representation without the prior consent of that person’s attorney).
In his marital dissolution proceeding, both Humphrey and his estranged wife were represented by counsel. With the consent of both of their attorneys, Humphrey and his wife communicated directly through mediation on custody and parenting-time issues. However, the wife’s attorney did not consent to Humphrey’s direct communication with on financial issues such as child and spousal support or property division. Humphrey did not seek consent from his wife’s attorney before he met alone with his wife several times to discuss financial issues and to obtain his wife’s signature on a marital settlement agreement (“MSA”) he drafted.
Humphrey also prepared a general judgment on pleading paper he had created to look like his attorney’s and delivered it and the MSA to his attorney’s office. Humphrey believed that his attorney would review the documents before filing them but, due to a misunderstanding, his attorney’s assistant filed the judgment and MSA without his attorney’s knowledge or notice to Humphrey’s wife’s attorney. Thereafter, the judgment was entered without notice to the wife’s attorney. The wife’s attorney discovered the judgment several weeks later and, on her client’s behalf, moved to set it aside. Humphrey did not object and the parties negotiated a resolution of the financial issues.
DAVID R. AMBROSE
On June 19, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland lawyer David R. Ambrose for violating RPC 1.7(a)(1) (current conflict of interest).
Ambrose was the nonmember manager of two companies and represented each company in legal matters. Both companies had a security interest in a particular real property, with one company’s position as a lien holder being superior to the other’s. Ambrose stipulated that he violated RPC 1.7(a)(1) when he undertook to foreclose the senior interest one company had in the property, eliminating the junior interest of the other. Although the principals of both entities were aware when Ambrose foreclosed one of the entity’s interest in a property, in doing so he was taking action that was directly adverse to the other entity’s interest in the same property. By simultaneously representing the entities at a time when their interests were directly adverse and not obtaining informed consent, in writing, from both entities to his representation of each, Ambrose engaged in a current-client conflict of interest.
Ambrose had previously received a public reprimand for a conflict of interest, which would have been an aggravating factor had that sanction predated the conduct at issue in this matter, which it did not. Although his substantial experience in the practice of law is an aggravating factor, his conduct was mitigated by the absence of a dishonest or selfish motive and a cooperative attitude toward the proceedings.
JUSTIN E. THRONE
Effective June 19, 2015, the disciplinary board suspended Klamath Falls attorney Justin Throne for two years, consecutive to his current one-year suspension in a prior disciplinary matter which is set to end in October. The trial panel found that Throne had violated several rules of professional conduct in connection with four separate client matters.
Two of the cases involved Throne’s representation of clients in water district litigation. In those cases the trial panel determined that Throne failed to pursue his clients’ interests (RPC 1.3); failed to adequately communicate with them (including failing to notify them that he had been suspended for failing to pay his PLF assessment) (RPC 1.4(a) & (b)); and failed to return their file materials, which were necessary to adequately protect their interests in ongoing litigation (RPC 1.15-1(d) and RPC 8.4(a)(4)).
In a third matter, Throne was a member of an arbitration panel and failed to sign the panel’s decision or thereafter communicate with the parties or other panel members, unnecessarily delaying the proceeding (RPC 1.3 and RPC 8.4(a)(4)).
In the fourth matter, Throne gave legal advice to an unrepresented co-defendant in a civil litigation, and requested that he purchase his co-defendant client’s interest in the property that was the subject of the litigation (RPC 4.3). As an enticement, Throne assured the litigant of the validity of the transfer and offered to defend him for free, if the transfer was challenged. Throne was required to follow through on his promise to defend the litigant, but thereafter pursued the full value of his hourly services from the estate and trust of the litigant (RPC 1.5).
Throne failed to respond to the bar’s requests for information regarding all of the complaints (RPC 8.1(a)(2)) and thereafter defaulted in formal proceeding. The trial panel found no mitigating factors, but determined that the presumptive sanction was aggravated by numerous aggravating factors, including prior discipline, a selfish motive, a pattern of misconduct and his bad faith obstruction of the discipline proceeding.
Effective June 25, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland attorney Garrett Maass for violation of RPC 8.4(a)(4) (conduct prejudicial to the administration of justice). Maass’s misconduct arose during the course of pursuing and defending litigation with two brothers.
In one matter, after one brother obtained an anti-harassment order against him in Washington state, Maass applied for and obtained a Oregon Family Abuse Prevention Act (“FAPA”) restraining order against that same brother, claiming to be in imminent danger of physical abuse. Although Maass disclosed the existence of other litigation in Washington, he did not explain that the order in the Washington case was against him. The court subsequently dismissed the FAPA action and attorney fees were awarded against Maass.
A few months later, Maass filed an Oregon defamation action against both brothers. Counsel for the brothers was in active communication with Maass about the insufficiency of the complaint when Maass demanded that the defendants file answers. Counsel filed responsive pleadings, but one of the responses was arguably filed late. Maass filed a motion for a default based on the lateness of the responsive pleadings, despite being informed that the court could not grant a default after a responsive pleading had been filed. The court denied the motion.
After re-pleading his complaint, Maass did not file a more specific pleading in response to counsel’s Rule 21 motions, and subsequently dismissed the case. One of the brothers then sought an award of fees against Maass. The court found the defamation action was ill-advised and in the wrong venue and awarded enhanced prevailing-party fees to the brother.
One brother thereafter sued Maass for wrongful use of civil proceedings and other causes of action. Maass notified the brother’s counsel that he intended to take the telephone deposition of the second brother, who resided in New York. Oregon counsel informed Maass that he represented the second brother. Maass took the position that since counsel was not admitted in New York, he could not represent the second brother at the telephone deposition. Over counsel’s objection, Maass repeatedly contacted the second brother, urging him to obtain New York counsel.
Later, Maass moved to vacate the Washington anti-harassment order that had been extended. The court denied the motion to vacate.
Maass’s conduct was aggravated by a pattern of misconduct and substantial experience in the practice of law, and mitigated by personal problems and an absence of prior discipline.
ERIC J. FJELSTAD
Effective June 29, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Gresham lawyer, Eric Fjelstad, for violation of RPC 7.1 (misleading advertising).
Fjelstad was duly admitted to the practice of law in Oregon in 1989 and Washington in 1990. Prior to July 2013, Fjelstad authorized the creation of an Internet website that held Fjelstad out to the public as an active member of the Oregon State Bar (“OSB”) and the Washington State Bar Association (“WSBA”), qualified and entitled to practice law in Oregon and Washington.
Effective July 12, 2013, Fjelstad’s OSB membership was suspended, and he was prohibited by law from practicing law in Oregon or holding himself out as qualified to do so until reinstated to active OSB membership. Fjelstad thereafter continued to hold himself out to the public, on the Internet website, as an active OSB member, qualified and able to practice law in Oregon.
On July 31, 2013, Fjelstad’s WSBA membership was suspended and he was prohibited from practicing law in Washington or holding himself out as entitled to do so until reinstated to active WSBA membership. Fjelstad thereafter continued to hold himself out to the public, on his Internet website, as an active WSBA member, entitled and able to practice law in Washington.
On August 12, 2013, Fjelstad was reinstated to active OSB membership, but his WSBA membership remained in suspended status. However, Fjelstad continued to hold himself out to the public as entitled and able to practice law in Washington.
Fjelstad’s conduct was aggravated by prior discipline and substantial experience in the practice of law. However, the stipulation noted that Fjelstad did not act with a dishonest or selfish motive and was cooperative in the OSB investigation.
JAMES J. KOLSTOE
On June 29, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Eugene lawyer James J. Kolstoe for violating RPC 1.15-1(a) (safekeeping client funds).
Kolstoe maintained funds of multiple clients in a pooled lawyer trust account. Upon receipt of a check for earned fees, he deposited it into his business account but incorrectly recorded the deposit as having been made into the trust account. Later, forgetting that he had already obtained a check for the earned fees, he transferred funds from the pooled lawyer trust account to his business account for the amount earned. In doing so, he drew upon other clients’ funds. He learned of the error when a check drawn on the trust account was dishonored. Kolstoe stipulated that, by failing to maintain complete trust account records and safeguard client property, he violated RPC 1.15(1)(a).
Although Kolstoe’s prior disciplinary history was an aggravating factor, it was outweighed by the absence of a selfish or dishonest motive, his timely good faith effort to rectify the consequences, and his full and free disclosure to disciplinary authority during the pendency of the investigation.
Effective July 8, 2015, the disciplinary board suspended former Portland lawyer Blake Simms for 120 days for violations of RPC 1.15-1(d) (failure to account for and promptly deliver client funds) and RPC 1.16(d) (failure to refund advance-paid expenses upon termination).
Two clients (in unrelated matters) advanced costs in contingency matters, which Simms thereafter failed to account for or timely refund the unused portion of. In one of the matters, Simms settled the case but did not timely account for or remit the client’s portion of the settlement for six months (despite bar involvement). In the other matter, Simms failed to ever account or return the client’s remaining costs. The trial panel found that Simms violated both rules with respect to both clients.
The opinion noted that Simms has previously been suspended for similar violations, engaged in a pattern of misconduct, and had substantial experience in the practice of law. The trial panel found no mitigating factors. Simms has been a lawyer in Arizona since 2002 and was admitted reciprocally in 2011.
WILLIAM L. TUFTS
120-day suspension, formal reinstatement required
Effective July 13, 2015, the disciplinary board approved a stipulation for discipline suspending Eugene attorney, William Tufts, for 120 days for violations of RPC 8.1(a)(2) (duty to timely respond to a disciplinary authority) and RPC 8.1(c) (duty to cooperate with the State Lawyers Assistance Committee). The stipulation recited that Tufts shall be required to seek formal reinstatement pursuant to BR 8.1, at such time as he is eligible to seek reinstatement.
In March 2012, Tufts entered into a monitoring and cooperation agreement with the State Lawyers Assistance Committee to abstain from all alcohol and undergo treatment, as necessary. Through January 2014, Tufts complied with the agreement and regularly met with his monitor.
Beginning in February 2014, Tufts failed to comply with the directives of his monitor and other terms of the agreement. In May 2014, the disciplinary counsel’s office (DCO) received a complaint from the State Lawyers Assistance Committee about Tufts’s noncompliance and requested Tufts’s response.
Between June and August of 2014, Tufts requested, and was granted, numerous extensions to respond to the bar’s inquiry. However, Tufts did not provide any substantive response until September 2014, after he was notified that DCO had filed a petition with the disciplinary board state chairperson, pursuant to BR 7.1, seeking that Tufts be administratively suspended due to his noncooperation with DCO.
Tufts’ sanction was mitigated by a number of factors, including: absence of a prior disciplinary record; absence of a dishonest motive; and good character and reputation. The stipulation also considered as mitigation the fact that Tufts had been facing a number of personal challenges during parts of the relevant time period, including his own health concerns, the death of a close nephew, and the diagnosis of terminal cancer of another close family member, who subsequently passed away.