Oregon State Bar Bulletin JUNE 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.

TERESE M. GUSTAFSON
OSB #81238
Lake Oswego
Disbarment

On March 7, 2002, the Oregon Supreme Court disbarred Lake Oswego lawyer Terese M. Gustafson, effective May 6, 2002.

In 1995, while employed as a deputy district attorney for Clackamas County, Gustafson represented the state in a juvenile court matter. In her preparation for the trial, Gustafson collected a large amount of documentary material, including binders, exhibits and notes. After the juvenile case was dismissed by the court, Gustafson requested permission from the district attorney to keep her juvenile court trial materials for use in defending herself in a bar disciplinary matter that arose from her conduct during the juvenile case.

In May 1995, the juvenile's lawyer moved to expunge the juvenile court record. The motion was delivered to the juvenile court counselor who asked Gustafson to oppose the motion. Thereafter, the court contacted Gustafson and asked if she would be opposing the expunction motion. Gustafson replied that she would not. The expunction motion was granted by the court which ordered that all records held by any agency, including the district attorney's office, to be physically destroyed within 21 days. A copy of the expunction order was delivered to Gustafson.

After the juvenile's records were expunged, Gustafson did not notify the court or the juvenile's lawyer that she possessed records subject to expunction, nor did she destroy the juvenile court records in her possession.

The juvenile's lawyer later filed a motion with the court to determine whether Gustafson had complied with the juvenile records expunction statute. In the course of that proceeding, a subpoena was issued to Gustafson to produce to the court all records in her possession relating to the juvenile. In response to the subpoena, Gustafson produced a small number of documents to the court and testified that she had no more records relating to the juvenile in her possession and that she had not kept any documents knowing that an expunction order had been entered. After further questioning by the juvenile's counsel, Gustafson produced several additional boxes of material, which the court determined were subject to expunction.

The supreme court found that Gustafson possessed records that were subject to expunction and released them unlawfully in violation of DR 1-102(A)(2) (criminal conduct reflecting adversely on honesty, trustworthiness, or fitness to practice law). The court also found that Gustafson violated DR 1-102(A)(4) (conduct prejudicial to the administration of justice) by failing to inform the court she had expunged records in her possession, failing to destroy them and releasing them to third persons, and DR 7-106(A) (disregarding ruling of a tribunal).

The court further found that Gustafson gave false testimony concerning whether she possessed records relating to the juvenile case and whether she knew that an expunction order had been entered. The court concluded that this conduct violated DR 1-102(A)(2), DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(4), DR 7-102(A)(5) (knowingly making a false statement of fact) and DR 7-102(A)(8) (knowingly engaging in illegal conduct).

THOMAS MACNAIR
OSB #96162
Portland
60-day suspension

On April 24, 2002, the disciplinary board approved a stipulation for discipline suspending Portland lawyer Thomas MacNair for 60 days for violation of DR 6-101(A) (failure to provide competent representation), DR 6-101(B) (neglect), DR 9-101(A) (failure to deposit client funds in trust) and DR 9-101(C)(3) (failure to account and failure to maintain complete records of client funds). The suspension was effective May 1, 2002.

MacNair engaged in the private practice of law and personally handled all financial business of the practice. Between about May 1996 and into 1998, MacNair received funds for legal services from several clients. Incorrectly believing he was entitled to the funds upon their receipt, he failed to deposit them in his lawyer trust account. MacNair did not have a written agreement with his clients expressly stating that fees paid in advance constituted a non-refundable retainer, earned on receipt. He also failed to prepare and maintain complete records reflecting his receipt, deposit and disbursement of the client funds and failed to account to his clients for the funds. Those accounting records MacNair maintained contained several errors. Ultimately, all client funds were accounted for. MacNair did not collect fees that he did not earn.

In another matter, a client consulted and retained MacNair concerning a tort claim against a police department for excessive force. MacNair admitted that he failed to provide competent representation and neglected the client's legal matter. He accepted the client's case when he did not have any knowledge or experience with such matters. MacNair failed to consult with or associate an attorney or refer the client to an attorney who was experienced with tort claim cases; failed to review the tort claim statutes and failed to conduct other research; failed to give the required notice of tort claim to the public body within the time required; incorrectly identified the statute of limitations and advised his client not to worry about the statute of limitations and failed to take other action to protect or pursue the client's claim.

MacNair was admitted in1996. He had no prior record of discipline.

WENDI K. WEISS
OSB #92154
Portland
Form B resignation

Effective April 16, 2002, the Oregon Supreme Court accepted the Form B resignation of Portland lawyer Wendi K. Weiss. At the time of the resignation, a formal complaint had been filed against Weiss for violations of DR 1-102(A)(2), DR 1-102(A)(3), DR 7-102(A)(8) and ORS 9.527(1). The charges arose from allegations that she improperly converted funds from her law firm partnership and then tried to conceal the deception and theft from the firm.

Weiss did not desire to defend or contest the bar's allegations. In the resignation, Weiss specified John Ostrander of Portland as custodian of her client files.

NAME WITHHELD
Eugene
Dismissal

On Dec. 12, 2001, a disciplinary board trial panel filed an opinion finding a lawyer not guilty of violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and dismissing the bar's complaint.

The lawyer was charged with violating the rule based on his failure to disclose certain information to the court concerning the defendant in a civil case in which the lawyer sought and obtained an order of default. The defendant had been committed to and continued to reside at the state mental hospital at the time of service, a fact not disclosed to the court.

The majority of the trial panel concluded that the bar failed to prove the allegations of misconduct. Specifically, the majority found that the defendant was not incapacitated or otherwise incapable under the law of responding to the lawsuit. Accordingly, there were no special service or disclosure requirements imposed upon the lawyer. One trial panel member disagreed and filed a dissenting opinion.

The trial panel opinion became effective on Jan. 24, 2002.


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