Oregon State Bar Bulletin — FEBRUARY/MARCH 2003
| Discipline |
LELAND R. BERGER
OSB #83020
Portland
Public reprimand
On Dec. 5, 2002, the disciplinary board approved a stipulation for discipline in which Portland attorney Leland Berger was publicly reprimanded for violating DR 5-101(A) (self-interest conflict) and DR 6-101(B) (neglect).
In April 1999, Berger was retained to represent a client in an appeal from a criminal judgment and sentence. Berger also agreed to determine if the client had any viable post-conviction claims. Berger timely filed a notice of appeal, but shortly thereafter, determined that his client had no legal basis to pursue a direct appeal. Berger advised the client’s mother that, due to state and federal statute of limitations concerns, he would not dismiss the appeal, but would allow the court to do so, providing him additional time to review the record for possible post-conviction claims.
Between November 1999 and February 2002, Berger did not complete review of the trial court file. The court of appeals dismissed the client’s appeal in December 2000. Berger stipulated that his conduct violated DR 6-101(B).
A second matter involved Berger’s representation of a client in an appeal of two criminal convictions. The matters were interrelated, and Berger timely filed notices of appeal on both and obtained the court’s permission to consolidate them. Between November 1999 and June 2000, Berger was diligent in obtaining all relevant files, tapes, transcripts, evidence and other information needed to evaluate his client’s potential appellate issues.
Between June 2000 and May 2001, Berger obtained numerous extensions of time in which to file a brief for the client. In May 2001, the court advised Berger that it would grant no further extensions of time. Berger failed to file the client’s brief timely. In August, the Court of Appeals entered an order of default, dismissed the client’s appeal and issued an appellate judgment. Thereafter, Berger offered to assist his client in getting the case reinstated and provided options if the court denied the reinstatement request. The client consented to Berger’s continued representation. However, Berger failed to discuss with the client the self-interest conflict of interest created as a result of Berger’s failure to timely file the client’s brief, or the affect that the missed deadline may have had on Berger’s professional judgment on his client’s behalf. Berger stipulated that, for failing to timely file his client’s brief, and by continuing to represent his client after he missed the filing deadline without complying with the full disclosure provisions of DR l0-101(B), he violated DR 5-101(A) and DR 6-101(B).
Berger had no prior discipline.
NANCY F. A. CHAPMAN
OSB #88019
Reno, Nevada
Public reprimand
On Nov. 21, 2002, the disciplinary board approved a stipulation for discipline reprimanding Nancy F. A. Chapman, now of Reno, Nevada, for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice).
Chapman represented a client in a workers’ compensation matter. During the representation, Chapman advised her client that, among his options regarding a request from the insurer for an independent medical exam, was the option not to attend. She also terminated her client’s deposition by the insurer before it was completed. Chapman also made representations to the Workers’ Compensation Division, in this same client matter and in another, without verifying the accuracy of the statements she made.
The stipulation for discipline noted that Chapman had substantial experience in the practice of law, but cited no prior disciplinary record and delay in the proceeding as mitigating factors.
RICHARD W. CLARK
OSB #90231
Eugene
Form B resignation
Effective Jan. 29, 2003, the Oregon Supreme Court accepted the Form B resignation of Eugene lawyer Richard W. Clark. At the time of the resignation, formal disciplinary proceedings were pending against Clark for multiple violations of the disciplinary rules, including: DR 1-102(A)(2)(criminal conduct reflecting adversely on a lawyer’s honesty or fitness to practice law); DR 1-102(A)(3) (dishonesty, fraud, deceit or misrepresentation); DR 5-101(A) (lawyer self-interest conflict); and DR 9-101(C)(4) (failure to promptly deliver client property). In addition to the formal complaint, the bar had filed a petition asking the court to suspend Clark from practicing law during the pendency of disciplinary proceedings pursuant to BR 3.1.
Clark was admitted to practice in Oregon in 1990. He had no prior record of discipline. Clark represented in his resignation that his client files and records have been or will be delivered to Eugene lawyer Owen McCullen.
VALERIE B. DOHERTY
OSB #81210
Hermiston
30-day suspension
Effective Jan. 10, 2003, the disciplinary board approved a stipulation for discipline suspending Hermiston attorney Valerie B. Doherty from the practice of law for 30 days for violating DR 2-110(A)(2) (improper withdrawal) and DR 6-101(B) (neglect of a legal matter).
Doherty was appointed to represent an inmate who had filed a petition for post-conviction relief. The court served a notice of intent to dismiss the case for want of prosecution unless Doherty filed a written response showing good cause why the case should be continued. Doherty took no action, and the court dismissed the case. In the months that followed, Doherty: failed to provide her client with copies of notices, pleadings and orders filed in the case; failed to maintain adequate communication with her client; failed to file a motion to reinstate the case; failed to file a motion to withdraw as the client’s lawyer and failed to notify the court and the client that she had constructively withdrawn from the representation.
In a second matter, Doherty was also appointed to represent an inmate who had filed a petition for post conviction relief. In the months following the appointment, Doherty: failed to file a formal petition for post conviction relief; failed to investigate and actively pursue the client’s case; failed to provide the client with copies of notices and orders filed in the case; failed to file a motion to withdraw as the client’s lawyer; failed to notify the client that she had constructively withdrawn from the representation and failed to deliver a copy of the client’s file to the client.
Doherty was admitted to practice in 1981. She had no prior record of formal discipline.
ROBERT N. EHMANN
OSB #95281
Pendleton
Form B resignation
Effective Jan. 21, 2003, the Oregon Supreme Court accepted the Form B resignation of Pendleton lawyer Robert N. Ehmann. At the time of the resignation, formal disciplinary proceedings were pending against him.
On Oct. 7, 2002, a disciplinary board trial panel filed an opinion finding that Ehmann violated multiple disciplinary rules involving several legal matters, including: DR 1-102(A)(3) (dishonesty or misrepresentation); DR 1-102(A)(4) (conduct prejudicial to the administration of justice); DR 1-103(C) (failure to cooperate with disciplinary authorities); DR 2-110(A)(2) (improper withdrawal); DR 2-110(B) (failure to withdraw); DR 6-101(A) (failure to provide competent representation); DR 6-101(B) (neglect of a legal matter); DR 7-101(A)(2) (intentional failure to carry out a contract of employment); DR 9-101(C)(3) (failure to account for client funds) and DR 9-101(C)(4) (failure to promptly deliver client property). The trial panel ordered that he be disbarred. The matter was being reviewed by the supreme court when Ehmann submitted his resignation.
At the time of the resignation, the bar had also filed a second disciplinary proceeding against Ehmann concerning two additional client matters, which included allegations that he violated DR 1-103(C) (failure to cooperate and respond truthfully to the disciplinary authorities); DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (failure to promptly deliver client property).
Ehmann was admitted to practice in Oregon in 1975. In July 2001, he transferred to inactive status. Ehmann had a prior record of discipline.
PAUL D. GEAR
OSB #96293
Pendleton
60-day suspension
Effective March 1, 2003, the disciplinary board approved a stipulation suspending Pendleton lawyer Paul D. Gear from the practice of law for 60 days for violating DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice) and DR 6-101(B) (neglect of a legal matter).
In October 2000, the Pendleton Public Defender’s Office was appointed to represent a client in a criminal matter. Shortly thereafter, the case was assigned to Gear, who was employed as a lawyer in that office. After Nov. 1, 2000, Gear took little substantive action to pursue his client’s legal matter and failed to maintain adequate communications with his client.
On the day of trial, the client asked the court to appoint another lawyer to represent him because he had not spoken with Gear about his trial testimony and did not believe Gear was prepared. In response to his client’s request, Gear represented to the court that he was prepared and the court denied the client’s request. After a motion to suppress was then heard and denied by the court, Gear informed the court that he was not prepared for trial and requested permission to withdraw. The court found Gear in contempt of court for failing to be prepared, assigned a new lawyer to represent the client, and rescheduled the trial.
As a result of prior disciplinary proceedings, Gear has been suspended from the practice of law since September 2001.
DAVID W. JAMES
OSB # 71090
Hillsboro
60-day suspension
On Dec. 11, 2002, the disciplinary board approved a stipulation for discipline suspending Hillsboro lawyer David W. James for 60 days for violation of DR 5-105(E) (current client conflict of interest), DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(3) (failure to account for client funds).
A husband and wife retained James to prepare the documents necessary to dissolve their marriage and paid a fee for the services to be performed. James told the clients that additional fees would be required to prepare a qualified domestic relations order ('QDRO') for the division of funds in the husband’s retirement account. James prepared a petition and a stipulated judgment and decree of dissolution of marriage, which he filed with the court. In simultaneously representing the interests of the husband and the wife, James represented multiple current clients in a matter when their interests were adverse.
After the court signed the decree, James failed to respond to the wife’s calls and otherwise did not communicate with the clients. James prepared a final draft of the QDRO about six months later and requested additional funds from the clients for its preparation. The wife paid the additional fee and James filed the QDRO with the court. Thereafter, James failed to notify the clients that the order had been filed and the husband’s retirement funds could be distributed according to its terms, and failed to account to the clients for the funds he received for legal services and costs.
James was admitted to practice in 1971. He had a prior record of discipline, including a public reprimand in 1996, In re James, 10 DB Rptr 63 (1996), and a letter of admonition in 1998.
ARTHUR P. KLOSTERMAN
OSB #86058
Salem
Public reprimand
Pursuant to a stipulation for discipline approved by the disciplinary board on Dec. 16, 2002, Salem lawyer Arthur P. Klosterman was publicly reprimanded for violating DR 5-101(A) (lawyer self-interest conflict of interest) and DR 6-101(B) (neglect of a legal matter).
The charges arose as a result of Klosterman’s representation of a client in a Social Security matter. The administrative law judge sent Klosterman and the client a copy of his denial of the claim. Klosterman timely filed a rebuttal of the denial to the Social Security Review Committee. Subsequently, in January 2001, Klosterman and the client received notice from the Social Security Administration that if they wanted court review of the denial, they had 60 days from the date of the letter to file a civil complaint in United States District Court. Shortly after receipt of the letter, Klosterman and his client met and agreed to file suit. The client also agreed to have Klosterman have an attorney more familiar with federal court proceedings review the case.
After the meeting, the client wrote Klosterman on four occasions regarding the suit, but Klosterman did not respond to the letters. Approximately 10 months after the January meeting, the client and Klosterman met, and Klosterman informed the client that he had failed to forward the file to another lawyer for review and failed to timely file the appeal in federal court. Klosterman advised the client of his options and told him he was willing to continue as his lawyer. At no time did Klosterman advise the client that the client had a potential malpractice claim against him or advise the client to seek independent counsel.
Klosterman was admitted to the bar in 1986, had no prior disciplinary record, did not act with a dishonest or selfish motive and fully cooperated with the disciplinary authorities during the investigation and in resolving the proceeding.
B. RUPERT KOBLEGARDE
OSB #70079
Portland
Public reprimand
On Dec. 10, 2002, the disciplinary board approved a stipulation reprimanding Portland lawyer B. Rupert Koblegarde for violating DR 6-101(A) (failure to provide competent representation).
In 1985, a husband and wife executed wills. Six months later, the husband, who was having health problems, executed a general power of attorney in favor of his son.
In 1988, Koblegarde began representing the wife and son, as attorney-in-fact for the husband, in estate planning matters. By then, the husband was incapacitated. Koblegarde never spoke or met with the husband. Based upon conversations with the wife, Koblegarde concluded that the previously executed wills did not meet the estate planning goals she identified. Other than speaking with the wife and the son, Koblegarde made no attempt to ascertain the husband’s estate planning goals.
Koblegarde prepared a revocable living trust and pour over will on behalf of the husband. He thereafter had the son, as an attorney-in-fact for the husband, execute both documents. On three separate subsequent occasions, and as a result of additional conversations with the wife, Koblegarde prepared and had the son, as attorney-in-fact for the husband, execute amendments to the husband’s revocable living trust. Koblegarde also assisted the son, as attorney-in-fact for the husband, in making gifts to the son and his wife.
At the time Koblegarde had the son execute these documents and take these actions, Koblegarde did not act with the thoroughness and preparation reasonably necessary for the representation in that he did not fully consider the effect or consequences of the son executing documents on his father’s behalf.
BOB PANGBURN
OSB # 89402
Hailey, Idaho
Reprimand
On Dec. 17, 2002, the Oregon Supreme Court filed an order of reciprocal discipline reprimanding Hailey, Idaho lawyer Bob Pangburn.
In June 2001, the Professional Conduct Board of the Idaho State Bar filed an order approving a stipulation for discipline between the Idaho State Bar and Pangburn. Pangburn admitted that he violated Idaho Rules of Professional Conduct 1.3, (diligence), IRC 1.4 (communication), IRC 1.15(b) (property of third person) and IRC 8.4(d) (conduct prejudicial to the administration of justice). He was publicly reprimanded for the misconduct.
Pangburn was admitted to practice in Oregon 1989. He had no prior record of formal discipline in Oregon.
NAME WITHHELD
Albany
Dismissal
On Jan. 15, 2003, a trial panel of the disciplinary board dismissed all charges against an Albany lawyer charged with violating DR 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), DR 7-102(A)(7) (counseling or assisting the lawyer’s client in conduct that the lawyer knows to be illegal or fraudulent), DR 5-101(A) (lawyer self-interest conflict) and DR 5-104(A) (entering into a business transaction with a client).
The case arose from the lawyer’s defense of a client in a civil matter that resulted in a money judgment against the client. After trial, but before judgment was entered, the client and his wife met with the lawyer to discuss the effect of the judgment. The lawyer prepared two deeds that transferred the client’s interest in two parcels of real property to his wife. At the same time, the lawyer prepared and took a promissory note secured by a deed of trust in one of the properties to secure the payment of his unpaid legal fees.
The bar alleged that the lawyer assisted the client in violating the statute that governs fraudulent transfers of property to avoid present creditors and those reasonably likely to become creditors, ORS 95.230. The bar alleged that the transfer was made with the intent to hinder, delay or defraud a creditor or debtor. The trial panel concluded that there was not clear and convincing evidence that the lawyer acted knowingly or intentionally in trying to defraud creditors. Instead, the panel concluded that the lawyer had simply advised the client of ways to manage the debt and minimize its consequences without doing anything illegal. The panel considered it significant that the property was fully encumbered already at the time of the transfer. Based on these findings, the panel concluded that the lawyer had not violated DR 1-102(A)(3) or DR 7-102(A)(7).
As to the conflict of interest charges, the panel concluded that the lawyer did take a trust deed to secure a fee, but there was little value in the deed since the property was held as a tenancy by the entirety and subject to a homestead exemption. The panel also found that the security for the outstanding fees was at the suggestion of the client and did not appear to be part of a business relationship beyond the normal attorney/client relationship.
No appeal of the trial panel opinion was taken and the dismissal became effective on Feb. 25, 2003.