Oregon State Bar Bulletin — JULY 2002
| Discipline |
Note: More than 11,500 attorneys 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.
JOHN BASSETT
OSB #65012
Milwaukie
Public reprimand
Effective May 30, 2002, a trial panel of the disciplinary board reprimanded
Milwaukie lawyer John Bassett for violating DR 1-102(A)(3) (conduct
involving dishonesty, fraud, deceit or misrepresentation) and DR 5-103(B)
(advancing financial assistance to a client).
Bassett undertook to represent a client who had sustained injuries in
a two-car accident. During the course of the representation, Bassett
advanced funds to his client. The advances were not for expenses incurred
in litigation, but instead were used to pay the client's personal living
expenses. These advances violated DR 5-103(B).
Ultimately, the insurance carrier for the driver of the other car offered
to pay its liability policy limits. Shortly thereafter, the insurance
carrier sent Bassett a check payable to, among others, a hospital and
a doctor who had filed medical service liens pursuant to ORS 87.555
et seq.
Bassett then sent a letter to the hospital stating that because the
financial recovery available was insufficient to satisfy all of the
client's medical creditors, the hospital should accept a reduced payment
in full satisfaction of the lien. Thereafter, the amount available to
satisfy the medical creditors increased, because another liability policy
covering the driver of the other car was discovered and because the
client's own insurance company waived its right to be reimbursed for
medical and wage expenses it had paid. Bassett continued to communicate
with the hospital about its lien and deliberately failed to disclose
the existence of the additional funds. The hospital never learned about
the additional funds and eventually accepted a reduced payment in full
satisfaction of its lien.
Almost a month before the hospital and the doctor agreed to accept a
reduced payment in full satisfaction, Bassett sent a letter to the insurance
carrier for the driver of the other car stating that he had negotiated
settlements with the hospital and doctor, and asking the insurance carrier
to re-issue the check it had issued previously to eliminate both the
hospital and doctor as payees. At the time Bassett sent this letter,
he knew that he had not yet negotiated settlements with the hospital
and doctor.
The trial panel dismissed a third charge that alleged Bassett charged
a clearly excessive fee to the client in violation of DR 2-106(A).
DANIEL Q. GALLAGHER
OSB #94075
Winston
Public reprimand
On May 17, 2002, the disciplinary board approved a stipulation reprimanding
Winston lawyer Daniel Q. Gallagher for violating DR 1-102(A)(4) (conduct
prejudicial to the administration of justice).
In 1997, Gallagher represented a client in a dissolution of marriage
proceeding. Gallagher pursued the matter in Douglas County and in August
1997, the court entered a judgment of dissolution of marriage. The parties
subsequently married each other again.
In October 2000, Gallagher was retained by the same client for dissolution
of marriage. Thereafter, he filed a petition for dissolution of marriage
in Douglas County. ORS 14.070(1) requires that a suit for dissolution
of marriage be commenced and tried in a county in which one of the parties
resides. When Gallagher filed the petition, he knew his client lived
in Colorado and had information in his possession from which he should
have known that neither party had lived in Douglas County since 1997.
For almost eight months, Gallagher pursued the matter in Douglas County
even though all of his communications with his client were to and from
Colorado.
UTCR 8.010(1) requires the petitioner in a dissolution of marriage proceeding
to file a certificate of residency stating that one or both of the parties
currently resides in the county in which the petition is being filed.
Gallagher prepared, caused his client to sign, and filed a certificate
of residency stating that one or both of the parties had resided in
Douglas County for the last six months. Based on information in his
possession, Gallagher should have known that this certificate was not
accurate. Ultimately, the proceeding was transferred to Coos County,
where the client's wife was residing.
Gallagher currently is serving a disciplinary suspension in another
matter. In re Gallagher, 332 Or 173, 26 P3d 131 (2001).
CLARK I. BALFOUR
OSB #79152
Portland
Public reprimand
On June 3, 2002, the disciplinary board approved a stipulation for discipline
reprimanding Portland lawyer Clark I. Balfour for violating DR 6-101(B)
(neglect of a legal matter).
In December 1995, Balfour met with the lawyers for the buyers of a parcel
of real property and agreed to assist with the prosecution and possible
arbitration of a real estate dispute. At the time, Balfour was aware
that the lawyers had been working on the case since 1993. In March 1996,
Balfour agreed to take over the case entirely. By June 1996, Balfour
had drafted a petition for arbitration but had not filed it. Between
June 1996 and September 1998, Balfour took no substantive action to
file and arbitrate the dispute.
On Sept. 24, 1998, Balfour filed the arbitration petition and paid the
appropriate filing fee. After filing the claim, Balfour took some action
on the case but did not move it forward to arbitration. In May, 2001,
the clients filed a bar complaint concerning Balfour's inaction. In
August 2001, Balfour wrote the clients advising that he was withdrawing
as their attorney. The clients did not respond to the letter and in
October 2001, Balfour wrote them confirming his withdrawal, returning
their files and refunding all fees he had received from the clients.
At the time Balfour withdrew, the claim was still pending before the
arbitrator.
The stipulation recited that Balfour had substantial experience in the
practice of law, having been admitted to the bar in 1979, but he had
little experience in this particular area of practice. The stipulation
also recited, among other things, that Balfour had no prior disciplinary
record, made timely good faith restitution and had fully cooperated
in the disciplinary investigation.
DONALD K. ROBERTSON
OSB #58081
Gresham
Public reprimand
On April 25, 2002, the disciplinary board approved a stipulation for
discipline publicly reprimanding Gresham lawyer Donald K. Robertson
for violating DR 5-105(E) (current client conflict of interest). A woman,
on advice of her personal attorney, offered to sell a parcel of real
property to a church. The offer was accepted. Afterwards, Robertson,
who was a member of the church, was asked to prepare documents necessary
to complete the transaction.
Robertson learned from the woman and her personal lawyer that title
to the property was vested in the woman's deceased husband's name, and
that the estate would have to be probated to consummate the sale of
the property to the church. It was decided that the woman would serve
as personal representative of the estate.
The woman could not afford to pay the fee she was quoted by her personal
lawyer, so church officials asked if Robertson would assist in the probate
of the estate. Robertson told church officials he would represent the
woman as personal representative if all parties consented to any conflicts
of interest and her personal lawyer would continue to represent her
personally and would review all documents he would prepare and file
in the probate. This was confirmed in a letter to the personal lawyer
with a copy to the woman and the church.
Robertson prepared and filed a petition for the woman's appointment
as personal representative of her husband's estate and became attorney
of record for her in the probate. Robertson later prepared documents
to transfer title of the real property from the estate to the church.
The documents were reviewed by the woman's personal lawyer. Robertson
was not paid for his services.
Robertson stipulated that while representing the personal representative
(who owed a fiduciary duty to the estate, who was the seller), and the
church, (who was the buyer in the closing of the sale of real property),
he was representing multiple current clients when such representation
would result in an actual or likely conflict of interest, in violation
of DR 5-105(E). Robertson also acknowledged that to the extent that
consent was available to remedy any likely conflict of interest, he
undertook the multiple representation without the consent of both clients
after full disclosure. Robertson attempted to disclose to the parties
that there might be a conflict of interest between them, but the letter
to the client's personal lawyer did not adequately comply with the requirements
of DR 10-101(B).
Robertson has a prior disciplinary record and has substantial experience
in the practice of law. However he did not have a selfish motive, had
fully cooperated during the disciplinary proceeding, the misconduct
was remote in time, and there was delay in the disciplinary proceeding.
PAUL FLANNERY
OSB #84217
Oregon City
Public reprimand
On June 7, 2002, the Oregon Supreme Court publicly reprimanded Oregon
City lawyer Paul Flannery, for violation of DR 1-102(A)(2) (prohibiting
commission of a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness to practice law), DR 1-102(A)(3)
(engaging in conduct involving dishonesty, fraud, deceit or misrepresentation)
and ORS 9.527(2) (conviction of a crime involving moral turpitude).
Flannery worked as a deputy district attorney for Clackamas County.
Flannery lived in Portland until 1997, when he moved to Vancouver, Wash.
Despite the move, Flannery continued to use his Oregon driver's license.
In May 1999, Flannery realized his Oregon license had expired and also
realized that if he did not immediately replace the license, he would
not be able to rent a car at an upcoming out-of-state business conference.
Because of time constraints, Flannery elected to renew his Oregon license.
In doing so, he listed the Canby address of his girlfriend's parents.
As part of the renewal application, Flannery signed a statement to the
effect that he understood making any false statement in the application
was against the law. Flannery received a new Oregon license based on
that application.
Flannery was later stopped for a traffic violation and presented the
Oregon license, but did advise the officer he was living in Washington.
A subsequent investigation by the Oregon State Police resulted in a
criminal charge being filed against Flannery for making a false application
for a driver license. He later pleaded guilty to the class A misdemeanor,
received probation and paid a fine. He was also dismissed from his position
with the district attorney's office.
The supreme court noted, among other things, that Flannery had substantial
experience in the practice of law and acted with a selfish motive. It
also noted that he had no prior disciplinary record, he fully cooperated
in the disciplinary investigation, had demonstrated good character and
reputation and was subjected to other penalties and sanctions.
STEVEN PLINSKI
OSB #77304
Coos Bay
Public reprimand
Pursuant to a stipulation for discipline approved by the Disciplinary
Board on May 17, 2002, Coos Bay lawyer Steven Plinski, was publicly
reprimanded for violation of DR 5-105(E) (current client conflict of
interest). The charge arose out of Plinski's representation of a husband
and wife, both of whom had children from previous marriages, in the
preparation of their living trusts and other related estate planning
documents. At the time Plinski undertook to represent husband and wife,
their trusts had assets of substantially different values; the clients
desired to distribute half of their combined assets to wife's daughter
and half to husband's children; wife's trust was subject to amendment
by her surviving spouse; wife was in frail health; and husband and wife
had ongoing disagreements about wife's estate plan.
Wife later obtained separate counsel and revoked the living trust Plinski
had prepared for her. Thereafter, Plinski again undertook to represent
both husband and wife to revoke husband's trust and create a revocable
joint trust.
Husband's and wife's objective personal and property interests were
adverse and Plinski was aware of the adversity of his clients' interests.
He undertook and continued to represent both husband and wife without
first having obtained their consent to the joint representation after
full disclosure.
In arriving at a sanction, the stipulation recited Plinski's substantial
experience in the practice of law, the absence of a dishonest or selfish
motive, his cooperative attitude, and his good reputation within his
area of practice.