Oregon State Bar Bulletin — JUNE 2003
Note: About 12,000 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.
Pursuant to a stipulation for discipline approved by the disciplinary board on March 19, 2003, Newport lawyer Kurt Carstens was suspended from the practice of law for 30 days, effective March 26, 2003, for violating DR 5-101(A) (lawyer self interest conflict), DR 5-103(B) (advancing financial assistance to a client) and DR 5-105(C) (former client conflict of interest).
In one client matter, Carstens’ firm represented the wife in a dissolution of marriage proceeding. After entry of the judgment of dissolution, Carstens undertook to represent the wife to assist in the sale of the family home. The husband failed to pay his court-ordered share of the expenses of maintaining the family home and as a consequence, the wife was in jeopardy of losing the home pending its sale. While Carstens was negotiating with the husband regarding his obligation to contribute to the expenses of maintaining the family home and contemplating contempt proceedings against husband, Carstens and his associate agreed to make monthly advances to the wife to pay the expenses of the family home. In the agreement that documented this loan, the wife agreed to pay Carstens interest on the funds loaned by the lawyers, to continuously market the house and sell it at a reasonable price, and to execute a standard recordable document to secure the debt if requested to do so. Although he orally advised his client to consult with independent counsel before entering into this transaction, Carstens did not make the disclosures required by DR 10-101(B). Carstens continued to represent the wife in her domestic relations matters for seven months while he was making monthly advances to cover the expenses of maintaining her home. In the stipulation for discipline, Carstens admitted that this conduct violated DR 5-101(A) and DR 5-103(B).
In a second client matter, Carstens’ associate represented a wife in a dissolution of marriage proceeding. While this proceeding was pending, the client’s former husband from an earlier marriage, who was a former client of Carstens, filed a motion to modify child custody and support. Carstens’ associate agreed to represent the wife in that proceeding as well, and the wife discussed with the associate the grounds her former husband was alleging in support of his motion for a change of custody. When Carstens learned that his associate had agreed to represent the wife in the custody and support modification proceeding, he directed the associate to stop representing the wife in that proceeding, and she did so.
Thereafter, the wife’s dissolution was concluded, and the firm’s representation of the wife ceased. Carstens then undertook to represent the wife’s former husband in the custody and support modification proceeding without obtaining the wife’s consent to do so after full disclosure. In the stipulation for discipline, Carstens admitted that this conduct violated DR 5-105(C).
In arriving at a sanction, the stipulation recited Carstens’ prior, but remote, disciplinary record, his substantial experience in the practice of law and his cooperative attitude toward the proceeding. The stipulation also recited that in the first client matter, Carstens’ client was able to preserve her equity in her home until it was sold. In the second client matter, Carstens did not obtain any actual knowledge of the substance of the conversations between the client and his associate.
ROBERT A. GOFFREDI
Form B resignation
On April 15, 2003, the Oregon Supreme Court accepted the Form B resignation of Portland attorney Robert A. Goffredi, effective June 14, 2003.
At the time of the resignation, Goffredi was under investigation by the bar for allegations that, while acting as a court-appointed attorney for several clients in federal criminal cases, he billed the federal indigent defense program for services to his clients that he did not perform. In the course of billing for his services, Goffredi also submitted vouchers to the federal government in which he swore that his statements regarding the services rendered to his clients, the time expended in rendering the services and the expenses incurred were true, correct, reasonable and necessary. The alleged conduct implicated DR 1-102(A)(3) (conduct involving dishonesty), DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 2-106(A) (charging or collecting an illegal or clearly excessive fee) and DR 7-102(A)(5) (knowingly making a false statement of fact).
The resignation indicated that all Goffredi’s client files and records are in the custody of Downing M. Bethune and Jon P. Martz of Portland.
CLIFFORD I. LEVENSON
On April 15, 2003, the Oregon Supreme Court suspended Arizona lawyer Clifford I. Levenson for a period of one year effective April 15, 2003, pursuant to BR 3.5 (reciprocal discipline).
On Dec. 4, 2002, the Arizona Supreme Court filed an order approving a tender of admissions and agreement for discipline by consent between the Arizona State Bar and Levenson. The agreement for discipline by consent involved four separate client matters. In the agreement, Levenson admitted that he had violated the following Arizona Rules of Professional Conduct: ER 1.2 (abiding by a client’s decision concerning the objectives of representation), ER 1.3 (lack of diligence), ER 1.4 (keeping a client reasonably informed), ER 1.5 (unreasonable fee), ER 1.16(d) (improper withdrawal), ER 3.4 (knowingly disobeying an obligation under the rules of a tribunal), ER 8.1(b) (failure to respond to the bar), ER 8.4(d) (conduct prejudicial to the administration of justice), Supreme Court Rule 51(h) (failure to respond to the bar) and Supreme Court Rule 51(i) (evading service or refusing to cooperate with the bar). The Arizona Supreme Court suspended Levenson for a period of one year and placed him on probation for a period of two years.
Levenson was admitted to practice in Oregon in 1995. During the times relevant to the client matters described in his agreement with the State Bar of Arizona, Levenson suffered from a chemical dependency but he did not act with a dishonest or selfish motive. He had no prior disciplinary record in Oregon.
On April 17, 2003, the Oregon Supreme Court issued an opinion dismissing a complaint against a lawyer who had pleaded guilty in circuit court to the crime of harassment under ORS 166.065(1)(a)(A). The bar alleged that the harassment conviction was a misdemeanor involving moral turpitude, thereby subjecting the lawyer to discipline under ORS 9.527(2) (discipline may be imposed for conviction of misdemeanor involving moral turpitude or felony). A trial panel agreed and imposed a reprimand. The lawyer then sought review by the Oregon Supreme Court. The court reviewed its decision in In re Chase, 299 Or 391, 702 P2d 1082 (1985), the legislative intent behind ORS 9.527(2) and the facts established in the lawyer’s conviction, and concluded that the lawyer’s actions in this case did not involve moral turpitude. Accordingly, the bar’s complaint was dismissed.
JAMES T. WILKERSON
McMinnville and San Carlos, Calif.
On April 1, 2003, the disciplinary board approved a stipulation suspending McMinnville attorney James T. Wilkerson from the practice of law for 30 days for violating DR 5-101(A) (self-interest conflict), DR 6-101(A) (competence) and DR 6-101(B) (neglect of a legal matter). Wilkerson is also admitted to practice law in California.
Wilkerson was hired to file suit for personal injuries on behalf of two clients. Wilkerson filed the action prior to the running of the statute of limitations but did not serve the defendants within 60 days as required by ORS 12.020. Defense counsel wrote Wilkerson two letters advising him of the failure to timely serve the defendants. The second letter threatened to seek enhanced prevailing party fees unless the case was dismissed. Wilkerson did not respond to these letters and did not advise his clients of the threat of prevailing party fees.
Defense counsel filed an answer raising the statute of limitations as an affirmative defense. Wilkerson did not file a reply or contact defense counsel and did not advise his clients of the answer and defense. Subsequently, defense counsel filed a motion for summary judgment based on the statute of limitations. Wilkerson did not file a response to the motion or take other action to prosecute the case and did not advise his clients of the motion. Two months later, Wilkerson advised the clients of the motion and defense. The case was subsequently dismissed and the defendants were awarded costs and prevailing party fees.
Wilkerson offered to settle any potential malpractice claim the clients might have had against him but did not provide the clients with an explanation sufficient to apprise them of the potential adverse impact of the service mistake on his professional judgment or the consequences of entering into a settlement agreement he prepared. Wilkerson did suggest the clients consult another lawyer about the agreement, and they did so.
Wilkerson admitted he failed to provide his clients with competent representation and neglected a legal matter entrusted to him. Wilkerson also admitted that, by offering to settle the potential malpractice claim without full disclosure and informed consent, he engaged in a self-interest conflict.
The stipulation recited that Wilkerson’s clients were vulnerable, that he had substantial experience in the practice of law, but had no prior disciplinary record and fully cooperated in the investigation of his conduct. The stipulation was effective May 1, 2003.
WILLIAM A. ALLEN
OSB # 94236
Effective April 30, 2003, the disciplinary board approved a stipulation for discipline suspending Salem lawyer William A. Allen for 60 days for violation of DR 1-102(A)(3), DR 1-102(A)(4), DR 5-101(A) and DR 9-101(C)(4).
A client retained Allen to represent her in a dissolution of marriage matter. The court filed its decision which, among other terms, provided that the client be awarded an investment account. The court declined to award attorneys’ fees to the client. Allen submitted a form of judgment to the court, a copy of which he provided to his client.
Allen proposed that his client liquidate a portion of the investment to pay attorney fees claimed to be due his firm. The client did not agree. Thereafter, without notice or the consent of his client, Allen prepared a new form of judgment, which added a provision directing that a portion of the client’s investment account be disbursed to his law firm to satisfy its claim. He filed the form of judgment with the court, but did not provide his client with a copy or otherwise inform her about the added provision. The court signed the judgment.
After Allen filed the judgment, he prepared a motion and proposed order allowing him to withdraw as the client’s attorney. Allen sent his client a copy of the motion and a letter purporting to submit the motion to the court. Before he filed the motion, a representative of the investment company told Allen that the judgment needed to be amended because the language was not sufficient to authorize liquidation of the investment to provide the funds he requested. Allen decided not to file the motion to withdraw, but did not notify his client. Without his client’s knowledge, Allen prepared a proposed amended judgment, which incorporated language required by the investment company, and submitted it to the court. He did not provide the client with a copy of the amended judgment or inform her that the judgment had been amended to add a provision to liquidate a portion of her investment account to pay his firm’s claim for attorneys’ fees. Allen also failed to inform the court that his client had not authorized and otherwise did not know about the provision. The court signed the amended judgment.
Allen delivered a copy of the amended judgment to the investment company, but did not provide his client with a copy. The investment company liquidated a portion of the investment and delivered a check to Allen. Allen deposited the funds in his firm’s lawyer trust account. After learning what had occurred, the client demanded that Allen deliver the funds to her. Allen refused, but continued to hold the funds in his lawyer trust account.
Allen admitted that his conduct violated DR 1-102(A)(3) (dishonesty and misrepresentation), DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 5-101(A) (lawyer self-interest conflict) and DR 9-101(C)(4) (failure to promptly deliver client property as requested by the client). As part of the stipulation, Allen delivered the funds obtained from the client’s investment account to the client.
Allen was admitted to practice in Oregon 1994. He had no prior record of discipline.
On April 21, 2003, the disciplinary board approved a stipulation for discipline reprimanding Salem lawyer Catherine Dixon for a violation of DR 3-101(B) (practicing law while suspended). Dixon was suspended from active bar membership on July 1, 2002, for failing to pay her annual membership assessment timely. Between that date and when she was reinstated on July 10, 2002, Dixon continued to practice law. The stipulation recited that Dixon was negligent in failing to realize that she was suspended and that no actual injury occurred as a result of the violation. The stipulation also recited that Dixon had a prior reprimand from 2001.
Effective May 28, 2003, the disciplinary board approved a stipulation for discipline suspending Portland lawyer Jason Castanza from the practice of law for 120 days for violating DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation) and DR 1-103(C) (failure to respond fully and truthfully in a bar investigation).
Castanza undertook to represent a client in a claim for personal injuries she sustained in a car accident. Sometime thereafter, Castanza sent his client a letter in which he represented that he had requested some of her medical records, when in fact he had not yet done so. A month later, Castanza sent his client another letter in which he represented that he had not yet received her medical records. In fact, he had not yet requested those records.
Thereafter, Castanza informed his client that he had sent a letter to the adverse insurance company and that he was waiting for a response. This was not true. Castanza’s client asked for a copy of the letter he had sent. In response, Castanza fabricated a letter addressed to the insurance company with an earlier date, and sent a copy of it to his client.
Ultimately, Castanza’s client filed a complaint with the bar. During the investigation of that complaint, Castanza made false representations to the bar’s disciplinary counsel’s office.
WILLIAM N. KENT
By order dated April 10, 2003, the disciplinary board approved a stipulation for discipline whereby William K. Kent was publicly reprimanded for violation of DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice).
Kent represented a client in a marital dissolution proceeding in which the client had previously represented himself. The pending petition raised only issues of property division, and the client had not requested spousal support in his pro se response. Local rules required the circuit court to refer to arbitration any domestic relations action in which the only contested issue was the division or disposition of property.
Shortly after he began to represent the client, the court set the matter for arbitration. Kent could not appear on the date set, but he and the client agreed that the client would appear alone. Kent agreed to advise the client and to help him prepare for the arbitration.
When Kent and the client met to prepare for the arbitration, the client informed Kent that he wanted to claim spousal support. Such a claim rendered the matter ineligible for mandatory arbitration under ORS 36.405(1)(b) and the local rule. Nevertheless, Kent prepared support calculations and other evidence relevant to the client’s spousal support claim. He failed to determine or advise the client that his support claim made the case inappropriate for arbitration.
As a result of Kent’s failure to determine and advise his client of the jurisdictional requirements of ORS 36.405(1)(b), the arbitration hearing went forward when the arbitrator had no jurisdiction to hear the matter. The parties incurred unnecessary expenses and their counsel and the arbitrator expended time to participate in the hearing. The unnecessary arbitration also delayed resolution of the matter.
Kent and the bar stipulated that Kent has substantial experience in the practice of law and that he was reprimanded for neglect in 1995. The stipulation also noted that Kent did not act with a dishonest or selfish motive and that he fully cooperated with the disciplinary proceeding.
A. SUE GUTHRIE
Form B resignation
Effective June 28, 2003, the Oregon Supreme Court accepted the Form B resignation of A. Sue Guthrie of Salem. At the time of the resignation, formal charges had been authorized against Guthrie on allegations that between April 1998 and May 2000, she did the following: converted client funds; failed to cooperate with the bar; charged an excessive fee; withdrew from cases without court permission; withdrew from representing clients without taking reasonable steps to prevent foreseeable prejudice to their rights; neglected several legal matters; disregarded a ruling of a tribunal and failed to account for client funds or return unearned fees, in violation of DR 1-102(A)(3), DR 1-103(C), DR 2-106(A), DR 2-110(A)(1), DR 2-110(A)(2), DR 6-101(B), DR 7-106(A), and DR 9-101(C)(3) and (4).
In the resignation, Guthrie specified Stephen A. Lipton of Salem as custodian of her client files.
JAMES D. HUGHES
On April 1, 2003, the disciplinary board approved a stipulation for discipline suspending Portland attorney James D. Hughes from the practice of law for 180 days for violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 6-101(B) (neglect of a legal matter), DR 7-101(A)(1) (failing to seek the lawful objectives of a client) and DR 9-101(C)(4) (failure to promptly return client property).
In 1995, Hughes was suspended from the practice of law for 30 days, all of which was stayed pending a period of probation that included the condition that he work with a probation monitor to ensure that his cases were properly attended to and timely processed. During the period of probation, Hughes was retained by two California residents to represent them as creditors in a contested bankruptcy proceeding. Hughes timely filed an amended complaint in the bankruptcy court on the client’s behalf.
A notice of hearing was sent to Hughes setting the case for trial. Hughes did not notify the clients or their California attorney of the hearing date. Shortly before trial, the debtors offered to settle the case. Hughes communicated the offer to the clients’ California attorney, and the offer was rejected. The California attorney and Hughes discussed that the case would not be further pursued. Hughes agreed to send a letter to the clients explaining the basis for that decision. Hughes failed and neglected to send the letter.
During the period of probation from his prior disciplinary case, Hughes failed to advise his probation monitor that he had not provided the clients a letter explaining why the bankruptcy case was not being pursued. Hughes also failed to respond to the debtor’s lawyer about the case. Ultimately, the debtor’s lawyer filed a motion to dismiss for want of prosecution. Hughes did not advise his clients of the motion and took no action in response to the motion.
Thereafter, the clients terminated Hughes’ employment and Hughes failed to respond to repeated efforts by the clients to obtain their file. Hughes returned some of the file to the clients after the clients filed a complaint with the bar.
By engaging in this conduct, Hughes admitted that his conduct violated DR 1-102(A)(4), DR 6-101(B), DR 7-101(A)(1) and DR 9-101(C)(4).
JON M. FRITZLER
Pursuant to a stipulation for discipline approved by the disciplinary board on April 1, 2003, Portland lawyer Jon M. Fritzler was suspended for 60 days for violation of DR 3-101(B) (practicing law in a jurisdiction where to do so violates the regulations of the profession in that jurisdiction) and ORS 9.160 (unlawful practice of law). Fritzler’s suspension is effective May 31, 2003.
The charges arose as a result of Fritzler’s conduct after his July 3, 2001 suspension for failure to pay his bar dues. Prior to July 3, 2001, Fritzler had received notice that failure to timely pay his dues would result in the suspension of his membership in the bar. Nonetheless, Fritzler knowingly continued to practice law after his suspension and until he was reinstated on Sept. 4, 2001.
In arriving at a sanction, the stipulation recited the absence of a prior disciplinary record, cooperative attitude toward the proceedings, Fritzler’s good character and reputation, and remorse.
JOSEPH J. O’CONNOR
Form B resignation
Effective June 28, 2003, the Oregon Supreme Court accepted the Form B resignation of Joseph J. O’Connor, formerly of Salem.
At the time of the resignation, a formal complaint was pending against O’Connor alleging that between April 2001 and July 2002, O’Connor practiced law while he was inactive or suspended, held himself out as eligible to practice law when he was not, failed to disclose to a client that he was suspended, failed to refund unearned fees to a client, improperly withdrew from representing a client, failed to render a proper accounting of client funds in his possession, made a false statement in his application for reinstatement to active practice and failed to respond to the bar’s inquiries concerning his conduct, in violation of DR 3-101(B), ORS 9.160, DR 1-102(A)(3), DR 7-102(A)(5), DR 2-110(A)(2), DR 9-101(C)(3) and DR 1-103(C).
In the resignation, O’Connor specified Raymond Bradley of Eugene as custodian of his client files.