Oregon State Bar Bulletin — OCTOBER 2002
| Discipline |
KENNETH MONTGOMERY
OSB # 76020
Lake Oswego
6-month suspension
On Aug. 1, 2002, the disciplinary board approved a stipulation for discipline suspending Lake Oswego lawyer Kenneth Montgomery from the practice of law for six months for multiple disciplinary rule violations involving two unrelated matters. The suspension was effective Aug. 6, 2002.
Montgomery represented a client who had commenced the process for a minor partition of her real property. A prospective buyer wanted to purchase one of the lots that would result from the partition. Because Montgomery’s client lacked the funds, the prospective buyer agreed to loan funds to complete the partition process. Montgomery prepared an agreement, which the prospective buyer and Montgomery’s client signed. Montgomery also prepared a promissory note and a trust deed to secure the client’s loan obligation to the prospective buyer.
At the time of the loan transaction, the client had previously given two trust deeds on the property to secure other obligations. Montgomery knew about the obligations, both of which were in default, with one of the trust deeds in foreclosure. The prospective buyer and his real estate agent did not inquire or otherwise investigate the status of the title to the property before entering into the loan transaction. Montgomery used a pre-printed trust deed form for the transaction. The form included a representation that the client had valid, unencumbered title to the property. This representation was false. Montgomery did not correct the trust deed form or otherwise disclose the pre-existing trust deeds. Montgomery admitted that he violated DR 1-102(A)(3) of the Code of Professional Responsibility.
In a second matter, Montgomery admitted that he violated DR 1-102(A)(3), DR 1-102(A)(4), DR 2-106(A), and DR 7-102(A)(3). The sole shareholder of a corporation retained Montgomery to file and pursue a Chapter 11 bankruptcy case for the corporation. The shareholder paid Montgomery a $5,000 retainer and personally guaranteed the payment of the corporation’s legal fees. Montgomery deposited the retainer into his lawyer trust account.
Thereafter, Montgomery prepared and filed the bankruptcy case. He also prepared and filed an application for his appointment as attorney for the debtor-in-possession and an affidavit of disinterestedness, in which he represented that he had no interest adverse to the debtor or debtor’s estate, other than representing debtor in the case, and no connection with the debtor, creditors or any other party of interest. Montgomery also filed a statement disclosing his compensation as required by law identifying the $5,000 retainer and acknowledging that his fees would be paid as the court approved. The court relied on Montgomery’s representations and ordered that Montgomery’s compensation would be determined upon application to the court.
Thereafter, the shareholder retained Montgomery to defend a claim made against him in state court on a promissory note given by the shareholder to purchase corporation stock from a former shareholder. The shareholder paid Montgomery for the legal services. Montgomery failed to disclose the representation and the payment to the bankruptcy court or the U.S. trustee.
Montgomery withdrew the retainer from his lawyer trust account and applied the funds to his fees for the debtor corporation without notice, application to or order of the court. Thereafter, he filed a fee application in which he sought the court’s approval of his attorney fees in an amount greater than had already been paid. Montgomery did not disclose that he had already disbursed the $5,000 to pay his fees or otherwise mention the retainer.
Prior to obtaining the court’s written order and confirming the amount approved by the court, Montgomery collected the full amount he requested from the debtor corporation for his attorney fees and expenses and reimbursed the shareholder for the fees that he had paid for the bankruptcy case. Thereafter, the court filed its order approving an amount less than Montgomery requested. Montgomery refunded the overpayment to the debtor corporation. He did not disclose to the trustee or the court that he had collected fees and expenses from the debtor and reimbursed the shareholder without obtaining the court’s approval.
Also, at the shareholder’s request, Montgomery loaned funds to the shareholder’s wife for the shareholder’s business purposes. He did not file an amended statement identifying the loan or that the loan funds would be used for the shareholder’s benefit, a party of interest in the bankruptcy case, or otherwise disclose to the bankruptcy court or the trustee that he was a creditor of a party of interest in the bankruptcy case.
Montgomery, admitted to practice in 1976, has a prior record of discipline.
DANIEL Q. O’DELL
OSB #89102
Oregon City
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on Aug. 1, 2002, Oregon City lawyer Daniel Q. O’Dell was publicly reprimanded for violation of DR 5-101(A) (lawyer self-interest conflict of interest) and DR 6-101(B) (neglect of a legal matter).
In November or December of 1998, O’Dell, through the state public defender’s office, was appointed to represent a client on the appeal of the client’s criminal conviction. Over the next two years, O’Dell did not timely file a brief and made six requests for extensions of time to file the brief. In November 2000, O’Dell requested another extension of time that was denied. O’Dell then filed a motion asking the court to reconsider the refusal to grant the extension. The court denied that motion.
Thereafter, O’Dell met with the client but did not inform him of the extensions he had requested. O’Dell subsequently left the state public defender’s office and the court of appeals dismissed the appeal in April 2001 for failure to file an opening brief.
The stipulation recited that O’Dell continued to represent the client after he was aware of a potential legal malpractice claim the client might have against him, when his professional judgment on behalf of the client may have been affected by his own personal interests. At no time did O’Dell advise the client that he might have such a claim for legal malpractice against O’Dell or advise the client to seek independent counsel as required by DR 5-101(A). In the stipulation, O’Dell also admitted that, in failing to file the brief for more than two years, he neglected a legal matter in violation of DR 6-101(B).
In arriving at a sanction, the stipulation recited that O’Dell had substantial experience in the practice of law, an absence of a dishonest or selfish motive, a cooperative attitude in resolving the matter and remorse for the conduct.
G. JEFFERSON CAMPBELL
OSB #75061
Medford
Public reprimand
On July 22, 2002, the disciplinary board approved a stipulation for discipline between the bar and Medford attorney, G. Jefferson Campbell wherein Campbell, agreed to a public reprimand for violating DR 9-101(A).
Campbell routinely received referrals from the Oregon State Bar Legal Referral Service. Some of these clients sought Campbell’s assistance in preparing a demand or other form of letter. If requested, Campbell offered a discounted fixed fee covering both the initial office conference and the preparation of a demand or other form of letter. Campbell charged these clients $35 for the initial office conference and $65 for the demand letter. Campbell routinely advised such referred clients that the $100 had to be pre-paid in advance and that no billing would be generated as the anticipated services were limited as outlined above. Campbell did not reduce these fee agreements to writing.
The client provided Campbell with $100. Campbell had no written fee agreement memorializing the scope of the services to be rendered or denominating the $100 as a nonrefundable fee earned on receipt. Prior to writing the demand letter, Campbell deposited the $100 into his general office account.
Campbell acknowledged that, for failing to memorialize his agreement in writing and depositing the funds in his general account prior to completing the legal matter, he violated DR 9-101(A). Campbell previously was disciplined in 1996 for violation of this disciplinary rule.
ROCH STEINBACH
OSB #89124
Forest Grove
Form B resignation
Effective Aug. 6, 2002, the supreme court accepted the Form B resignation of Forest Grove lawyer Roch Steinbach. At the time of the resignation, a formal disciplinary proceeding was pending against Steinbach containing eight causes of complaint alleging multiple violations of DR 1-102(A)(3) (conduct involving dishonesty and misrepresentation); DR 5-105(E) (current client conflict of interest); and DR 6-101(A) (competence). He was also charged with violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 5-105(E) (settling similar claims of clients); DR 7-102(A)(3) (conceal or knowingly fail to disclose that which the lawyer is required by law to reveal); DR 7-102(A)(5) (knowingly make a false statement of law or fact); DR 9-101(A) (fail to deposit and maintain client funds in trust); DR 9-101(C)(1) (failure to promptly notify a client of receipt of client funds); and DR 9-101(C)(4) (failure to pay to a client funds). Steinbach was also charged with violating ORS 9.460(2) (duty not to mislead the court); ORS 9.527(4) (wilful deceit or misconduct in the legal profession); and ORS 9.527(6) (gross or repeated negligence or incompetence in the practice of law).
Steinbach was admitted to the bar in 1989. In the resignation, Steinbach stated that he had no current client files. Any closed files have been or will be placed in the custody of Forest Grove lawyer Timothy Marble.
WILLIAM O. BASSETT
OSB # 69013
Lake Oswego
Public reprimand
On Aug. 1, 2002, the disciplinary board approved a stipulation for discipline reprimanding William O. Bassett for violation of DR 3-101(B) and ORS 9.160.
The bylaws of the Oregon State Bar require active members who are engaged in the private practice of law to carry professional liability insurance through the Professional Liability Fund. Bassett elected to make installment payments for the insurance. The PLF notified Bassett that his 4th quarter PLF installment for 2001 had to be received by the PLF not later than 5 p.m. on Oct. 10, 2001, and that payments received after that time would be rejected and he would be automatically suspended without further notice.
On Oct. 10, 2001, during regular business hours, Bassett delivered a check to the PLF for the installment payment. About two weeks later, Bassett’s bank notified him that his check to the PLF had been dishonored. Bassett notified the PLF. He did not confirm his membership status and continued to practice law. The PLF notified the bar and Bassett was automatically suspended for failure to pay his PLF assessment, effective Oct. 11, 2001. Bassett then paid the installment, submitted an application for reinstatement (BR 8.4) and was reinstated as an active member of the bar. Bassett disclosed in his application that he practiced law during the suspension period. The investigation of Bassett’s conduct disclosed that he had funds available to pay the PLF installment, but had drawn a check on the wrong account.
Bassett was admitted to practice in 1969. He had a prior record of discipline.
JAMES JEFFERSON CARTER
Corvallis
Admission denied
On July 18, 2002, the Oregon Supreme Court issued an opinion denying the admission application of James Jefferson Carter, determining that Carter had not shown the requisite good moral character for admission to the bar.
In his first year of law school in 1995, Carter entered the premises of a former corporate employer in Wilsonville, after hours and without authorization, using an access card still in his possession. Carter removed about $5,000 worth of computer equipment from the premises and took the stolen items to his apartment in Eugene. Later, when questioned by law enforcement authorities, Carter denied the theft, denied that he still had an access card and stated that he had not been in Wilsonville on the day the theft occurred. Carter continued to deny involvement even after being informed that his acts had been recorded on surveillance video. Ultimately, Carter was indicted for burglary and theft but, with assistance of counsel, he entered into a civil compromise that led to the dismissal of the charges.
Carter argued before the Board of Bar Examiners and the court that the theft incident was caused by stresses arising from his reaction to serious health problems of family members, that the offending conduct occurred several years ago, and that he had remedied any psychological problem and was reformed. However, the court found that Carter had not offered any evidence from which the court could conclude that he had reformed sufficiently to permit admission. In that the burden of proving character and fitness was Carter’s, his application for admission was denied.
THEODORE C. CORAN
OSB #82226
Salem
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on Aug. 8, 2002, Salem lawyer Theodore C. Coran was publicly reprimanded for violation of DR 5-101(A) (lawyer self-interest conflict of interest) and DR 6-101(B) (neglect of a legal matter).
The charges arose out of Coran’s representation of three incarcerated individuals. Two of the cases were habeas corpus matters and one was an appeal of a conviction. In all three matters Coran failed to timely file an appearance and the cases were dismissed. When he became aware of a potential malpractice claim in each of the cases, Coran continued to represent each of the inmates without their consent to the continued representation after full disclosure as required by DR 5-101(A). The stipulation also recited that Coran neglected legal matters entrusted to him in violation of DR 6-101(B).
In arriving at the sanction, the stipulation noted Coran’s substantial experience in the practice of law and a prior public reprimand in 2000 for a conflict of interest in violation of DR 5-105(C) and (E). The stipulation also recited that Coran did not act with a dishonest or selfish motive, timely tried to rectify the consequences of his misconduct, cooperated in the disciplinary proceeding and demonstrated remorse for the misconduct.
VAN ALEXANDER COVINGTON IV
Clackamas
Admission denied
On July 18, 2002, the Oregon Supreme Court issued an opinion denying the admission application of Van Alexander Covington IV, determining that Covington had not shown the requisite good moral character for admission to the bar.
Covington had a long history of drug and alcohol dependency and criminal activity associated with that dependency. Although Covington had periods over the years when he did not use alcohol and drugs, he experienced relapses and his heaviest drug use, including use of heroin, cocaine and methamphetamine, continued into his second year in law school. However, Covington presented evidence that he had been sober since early 1998, that he had successfully participated in Alcoholics Anonymous and an OAAP treatment program, and had been gainfully employed as a clerk/bailiff for a circuit court judge who testified in his favor.
In assessing Covington’s evidence of rehabilitation from his drug and alcohol dependencies, the court noted the findings of an examining psychologist that Covington did not have clear insight either into the reasons for his periodic, serious drug and alcohol abuse or the danger that he could relapse into such behavior. In addition, the court noted that Covington’s most recent drug use was the most serious, thereby trending upward, and that the passage of time since his last relapse was insufficient to overcome the concerns that his psychological profile and history of past relapses generated. In that Covington had the burden of proving his character and fitness, his application for admission was denied.
MARK J. GEIGER
OSB #84047
Salem
Public reprimand
On Aug. 1, 2002, the disciplinary board approved a stipulation for discipline between Salem attorney Mark Geiger and the Oregon State Bar. Pursuant to the stipulation, Geiger was publicly reprimanded for violating DR 6-101(B) (neglect) in connection with his handling of two client matters.
In February 1999, Geiger was appointed to file a petition for review of a dismissal of a habeas corpus petition. In July 1999, the client’s petition was placed in abeyance pending the court’s decision in another case. In July 2000, the client’s case was remanded back to the court of appeals. In August 2000, the opposing party filed a supplemental memorandum. Geiger did not timely advise his client of the court’s decision in the related matter, the remand of his case to the court of appeals, and did not timely provide the client with a copy of the memorandum filed by the opposing party.
In the second matter, Geiger was appointed to represent a client in the appeal of a judgment denying post-conviction relief. Geiger timely filed a Balfour brief on the client’s behalf and timely provided his client with a copy of the response brief filed by the state. In January 2001, the court of appeals issued a memorandum decision denying the client’s post-conviction relief. Geiger failed to forward a copy of the court’s decision to his client. In March 2001, the Court of Appeals issued an appellate judgment which Geiger failed to forward to his client.
Some time prior to August 2001, Geiger relocated his law office. He did not provide his client with a copy of his new office address and therefore did not receive a letter from his client requesting information regarding the status of his legal matter. Ultimately, the client contacted the Court of Appeals and learned that a judgment in his case had been issued in March 2001.
For failing to keep both clients adequately advised on the status of their legal matters, Geiger violated DR 6-101(B). Geiger had no prior discipline record.
DAVID B. HARRIS
OSB #94090
Portland
Disbarred
Effective Sept. 9, 2002, the Oregon Supreme Court disbarred Portland attorney David B. Harris.
In eight separate cases, which were consolidated for proceedings before the trial panel, the bar brought 17 causes of complaint alleging 32 violations of the disciplinary rules. They included: multiple instances of failure to complete work on behalf of clients; repeated misrepresentations to judges, one of which resulted in a conviction for criminal contempt; misrepresentations to the state court administrator in connection with a fee request in a court-appointed criminal matter; filing a false police report; violation of probation conditions, including use of illegal drugs; misrepresentations to the bar; failure to cooperate with the bar’s investigations of his conduct and practicing law when he had been suspended. The trial panel issued an opinion concluding that Harris had violated the rules and ordered that he be disbarred.
In addition to review of the trial panel’s decision, Harris asked the court for permission to brief and argue the issue whether the bar should have appointed counsel to represent him before the trial panel. The court granted the motion. The court concluded that an accused lawyer has no constitutional right to appointed counsel and also declined to require the appointment of counsel under its general authority over lawyer disciplinary matters. Based on the record, the court also agreed with the trial panel that Harris committed the violations charged and should be disbarred.
In addition to the formal complaint, the bar filed a petition for suspension during pendency of disciplinary proceedings pursuant to BR 3.1. The court granted the motion. Harris has been suspended since July 13, 1999.
Harris was admitted to practice in Oregon in 1994. He had no prior record of discipline.
KATHRYN E. JACKSON
OSB #87053
Salem
Public reprimand
On Aug. 1, 2002, the disciplinary board approved a stipulation for discipline reprimanding Kathryn E. Jackson for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice).
Jackson represented a client in a personal injury lawsuit. The parties’ counsel agreed to perpetuate the testimony of Jackson’s expert witness for trial because he was not available on the scheduled trial date. Jackson took the deposition of her expert witness, which was also videotaped. During the deposition, Jackson asked the witness questions about his prior employment by the defendants’ attorneys. The defendants’ attorneys objected. The defendants’ attorneys asked the witness questions about his prior employment by Jackson. Jackson did not object.
The transcript of the deposition was not available at the commencement of the trial. The defendants’ counsel informed the court that Jackson had a videotape of the deposition that would be played for the jury. In the interests of time, the court ruled on certain of the parties’ objections by issue, without viewing the videotape. The court sustained the defense counsels’ objections concerning the witness’s prior employment by the defendants’ attorneys. The court did not rule on the issue as it applied to the defendants’ attorneys’ questions about Jackson’s prior employment of the witness. Jackson instructed the videographer to delete portions of the videotape, including portions that the court did not order be excluded. Jackson played the videotape of the deposition for the jury without further disclosure to the court.
Jackson thought she had a standing objection and that the court had ruled on the issue as applied to the defendants’ attorneys’ questions. She failed, however, to understand the scope or to seek clarification of the court’s rulings or to fully identify for the court those portions of the videotape that she had directed be deleted. By making deletions beyond those directed by the court and failing to fully disclose the deletions that were made to the videotape, Jackson stipulated that she engaged in conduct prejudicial to the administration of justice.
Jackson was admitted to practice 1987. She had no prior record of discipline.
WILLIAM T. RHODES
OSB #79098
Lake Oswego
Disbarred
Effective Aug. 12, 2002, the Oregon Supreme Court disbarred Lake Oswego attorney William T. Rhodes.
The bar alleged that Rhodes violated DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(4) (conduct prejudicial to administration of justice); DR 1-103(C) (failing to cooperate with disciplinary authorities); and DR 7-102(A)(5) (knowingly making false statements of law or fact), in connection with his testimony and failure to cooperate in a prior disciplinary proceeding. Rhodes did not file an answer to the bar’s formal complaint and the trial panel entered an order of default. In a subsequent hearing, the trial panel deemed the bar’s allegations of misconduct to be true and concluded that Rhodes should be disbarred. The court stated that an exhaustive discussion of the multiple acts of misconduct would not benefit the bench, the bar or the public and agreed with the trial panel that Rhodes should be disbarred.
Rhodes was admitted to practice in Oregon in 1979. He had a prior record of discipline.
JOHN E. STORKEL
OSB #85087
Salem
Public reprimand
On Aug. 1, 2002, the disciplinary board approved a stipulation for discipline between Salem attorney John Storkel and the Oregon State Bar. Pursuant to the stipulation, Storkel was publicly reprimanded for violating DR 5-101(A) (self-interest conflict), DR 6-101(A) (competency) and DR 6-101(B) (neglect).
Storkel was appointed to represent a client in two post-conviction cases. The client’s deposition was scheduled, and the client requested copies of the court files and transcripts so that he could review them before the deposition. Storkel failed to obtain and review the file and transcripts or provide them to his client prior to the deposition, nor did he provide the requested information to the client until the morning of the hearing, some five months after the client had initially made his request. On the day of the hearing, Storkel filed a partial trial memorandum and exhibits in one case, but no memorandum or exhibits in the other. While Storkel obtained court permission to submit additional materials in connection with both cases, Storkel failed to submit the materials within the allowed timeframe. The court issued a letter opinion denying post-conviction relief. Storkel thereafter submitted additional materials but did not submit several affidavits prepared by the client. The court considered the submissions but affirmed its earlier opinion. Storkel stipulated that his conduct violated DR 6-101(A) and DR 6-101(B).
A second matter involved Storkel’s representation of a client in a habeas corpus proceeding. Storkel timely filed a notice of appeal and opening brief on the client’s behalf. The state, in response, filed a motion for summary affirmance, and Storkel timely filed a response thereto. Thereafter, the Oregon Court of Appeals issued an order summarily affirming a lower court’s dismissal. Storkel did not timely file a petition for review, and the Court of Appeals entered an appellate judgment.
During the representation, Storkel did not provide his client with copies of the pleadings and court rulings. Two months after entry of judgment, the client wrote Storkel seeking an update on his legal matter. After meeting with his client, Storkel reviewed the file and realized that judgment had been entered and that the time to seek review had passed. Storkel prepared and filed a motion in the Court of Appeals seeking to set aside the appellate judgment. Storkel did not discuss with the client the circumstances surrounding the missed filing, the potential ramifications of his failure to timely file, or the effect of the missed deadline on Storkel’s professional judgment. Moreover, Storkel did not seek his client’s consent to the continued representation or recommend that he seek independent counsel. Storkel stipulated that his conduct violated DR 5-101(A) and DR 6-101(B).
Storkel had no prior discipline.
VICTORIA E. HATCH
OSB # 88338
Portland
Public reprimand
On Aug. 12, 2002, the disciplinary board approved a stipulation for discipline reprimanding Victoria Hatch for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice).
Hatch provided legal services to a client for which the client owed attorney fees. Later, Hatch filed a lawsuit against the former client for the attorney fee claim. Hatch and the client submitted the matter to arbitration. The arbitrators entered an award in Hatch’s favor. The client filed an objection to the arbitration award with the court and served a copy of the objection on Hatch. The client did not praecipe or otherwise schedule the objection for hearing.
A clerk of the court advised Hatch that she should commence a new proceeding to file the arbitration award and to obtain a money judgment. Hatch filed the arbitration award and notified the client of the new proceeding. Thereafter, Hatch filed an affidavit for money judgment in the new proceeding and represented to the court that no objection to the arbitration award had been filed in that proceeding. Hatch did not tell the court that the client had filed an objection to the arbitration award in the original case or that she had commenced a new proceeding only to file the arbitration award. The court signed and filed the money judgment. When the former client brought the issue to the court’s attention, the judgment was set aside and a hearing was held on the objection.
Hatch was admitted to practice in 1988. She had no prior record of formal discipline.