Oregon State Bar Bulletin — MAY 2003

Discipline

JAMES I. MITCHELL
OSB #90342
Morro Bay, Calif.
Public reprimand
On March 18, 2003, the disciplinary board approved a stipulation for discipline reprimanding James I. Mitchell, now living in Morro Bay, California, for violating DR 2-106(A) (charge or collect an illegal fee) and, in a second case, improperly withdrawing in violation of DR 2-110(A)(2).

In the first matter, Mitchell undertook to represent the guardians of an individual. During the course of the representation, he charged or collected a fee from the estate without first having obtained approval of the fee by the court as required by ORS 125.095(3), thereby violating DR 2-106(A).

In the second matter, Mitchell was retained by a husband and wife in September 1998, to represent them in a claim for unlawfully being detained by security personnel at a retail store. On Jan. 19, 2001, Mitchell filed a motion to withdraw as counsel for the clients without giving the clients any notice of his intent to do so, without advising opposing counsel that he was doing so, without serving the motion on the clients or opposing counsel and without discussing the matter with the clients before filing the motion. Mitchell admitted that in so doing, he withdrew from employment without taking steps to avoid foreseeable prejudice to the rights of the clients, including giving them reasonable notice of his intent to withdraw in violation of DR 2-110(A)(2).

Mitchell had no prior disciplinary record, did not act with a dishonest or selfish motive, cooperated with the investigation of his conduct and expressed remorse for the conduct.

BRITT NELSON
OSB #82094
Lake Oswego
Public reprimand
On March 18, 2003, the disciplinary board approved a stipulation for discipline reprimanding Lake Oswego lawyer Britt Nelson for violating DR 1-103(C) (failure to cooperate) and DR 3-101(B) (engage in the unlawful practice of law).

On April 2, 2002, Nelson prepared and filed a petition for bankruptcy on behalf of a client in the United States Bankruptcy Court for the Western District of Washington, including a disclosure that she was being compensated as an attorney for her client. On May 10, 2002, Nelson and her client attended the first meeting of creditors, after which Nelson signed a reaffirmation agreement as the attorney for the client. Nelson was not admitted to practice law in Washington or before the United States Bankruptcy Court for the Western District of Washington when she appeared in court. Nelson admitted that, by engaging in this conduct, she violated DR 3-101(B).

On May 13, 2002, the bar received a complaint from a Washington lawyer (not one of Nelson’s clients) concerning the unauthorized appearance in Washington. The complaint was forwarded to Nelson with a request for a response. Nelson did not timely respond and a second letter was sent to her indicating that the matter would be sent to the Local Professional Responsibility Committee (LPRC) if she did not respond timely. Nelson’s mother died about this time, while Nelson was with her out of state. Nelson left word with the bar that she would respond in the near future. When she did not respond the matter was referred to the LPRC. Nelson did respond thereafter, and the LPRC returned the file to the bar without investigation. Nelson admitted that, by not timely responding to the initial letters from the bar, she violated DR 1-103(C).

The stipulation recited that Nelson had no prior disciplinary record, did not have a dishonest or selfish motive, was having personal problems at the time of the misconduct and expressed remorse for any injury she may have caused.

BETTY JO WHITE
OSB #73324
Silverton
Public reprimand
On March 17, 2003, the disciplinary board approved a stipulation for discipline reprimanding Silverton lawyer Betty Jo White for violating DR 5-104(A)(limiting business relations with a client).

In August 2000, White borrowed $20,000 from a longtime client. The loan created a conflict of interest between White and her client. The client expected White to exercise her professional judgment to protect the client’s interests. White failed to obtain her client’s consent after full disclosure as defined by DR 10-101(B). While White did verbally explain the conflict, did discuss the potential adverse impact of the loan with her client and advised her client to seek independent legal advice, she did not do so in writing. The only written document was an unsecured promissory note signed by White.

White’s client became ill and expressed concern to family members about White’s loan. After the client died, White failed to stay current on her obligation, causing actual injury to her client and later her client’s estate.

White was admitted to the bar in 1973, had no prior disciplinary record and fully cooperated with the disciplinary authorities during the investigation and in resolving the proceeding.

GEOFFREY J. GOKEY
OSB #89049
Redmond
Public reprimand
On March 18, 2003, the disciplinary board approved a stipulation for discipline reprimanding Redmond lawyer Geoffrey J. Gokey for violating DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(4) (failing to promptly deliver client property).

In May 1999, a husband and wife retained Gokey to represent them regarding a fire that destroyed their business. Part of the representation included a civil claim against the insurance company that had denied payment of the clients’ claim.

Gokey negotiated with the insurance company and received partial settlement payment in late September 2000. Thereafter, the clients contacted Gokey and advised him they wanted to apply a portion of the proceeds to an outstanding tax debt listed in their bankruptcy to avoid liquidation of their business. In the fall of 2000, Gokey confirmed the debt to the Internal Revenue Service and instructed his secretary to determine the appropriate account on which to render payment and to prepare the necessary trust account check. The check and letter were not prepared or forwarded to the IRS. Gokey took no action to tender the money to the IRS until February 2001, when he requested permission from the bankruptcy trustee to transmit the funds. On March 15, 2001, the trustee consented to the payment, but the money was not disbursed to the IRS until May 4, 2001.

In May 2001, the clients retained another lawyer to take over the case, and on May 23, 2001, she requested that Gokey turn over all the clients’ files to her. On May 23, 2001, the clients filed a complaint with the bar concerning Gokey’s conduct. Gokey finally turned over the files in November 2001.

Gokey admitted that, although he did extensive legal work for the clients, he neglected a legal matter entrusted to him by failing to timely disburse the settlement proceeds. He further admitted that in delaying the return of the files, he failed to promptly deliver to his clients property in his possession the clients were entitled to receive.

The stipulation recited that Gokey was admonished in 2000 for neglecting a legal matter and had substantial experience in the practice of law, having been admitted in 1989. Gokey fully cooperated in the investigation of his conduct and did not act with a selfish or dishonest motive.

DAVID K. WINTER
OSB #93487
Tillamook
Public reprimand
Effective March 25, 2003, the Oregon Supreme Court reprimanded Tillamook lawyer David K. Winter, pursuant to BR 3.5 (reciprocal discipline). The State of Nevada had previously imposed the same sanction.

Winter represented a client in connection with her husband’s estate and business. The client received funds from various insurance policies and the sale of assets. Those funds were deposited into Winter’s trust account.

Winter owned and operated an investment company. Without obtaining consent after full disclosure from his client, Winter, through the investment company, invested some of his client’s funds in trust deeds and other real estate and made loans to his family and friends.

Winter obtained title to a house on behalf of his client. He then used client funds to pay members of his family who had cleaned the house. Winter failed to obtain consent after full disclosure from his client before incurring the cleaning charge and disbursing those funds to his family members.

For engaging in the above referenced misconduct, Winter was found to have violated Nevada Rules of Professional Conduct SCR 157 and SCR 158(1).

SHERRILL L. DYE
OSB #97254
Portland
Public reprimand
On March 18, 2003, the disciplinary board approved a stipulation for discipline in which Portland attorney Sherrill Dye was publicly reprimanded for violating DR 1-102(A)(2) (criminal conduct) and DR 1-102(A)(3) (conduct involving dishonesty and misrepresentation).

In early 2001 and continuing into 2002, Dye experienced difficulties in her personal life and felt the need to examine the records from her home telephone. Dye contacted the telephone company about obtaining a copy of the phone records and a company representative told her that she needed to subpoena them.

On or about March 1, 2002, Dye modified a form of subpoena from her law firm’s computer. In the subpoena she inserted a fictitious probate case name in the court caption and her law firm’s address. The telephone company honored the subpoena.

ORS 162.355 provides that a person commits the crime of simulating legal process if the person knowingly issues or delivers to another person any document that in form and substance falsely simulates civil or criminal process. Civil process includes a subpoena filed for the purpose of directing a person to perform or refrain from performing a certain act.

Dye stipulated that, for knowingly creating and issuing a subpoena that contained false statements and simulating civil process, she violated DR 1-102(A)(2) and DR 1-102(A)(3).

Dye reported the misconduct to the bar, cooperated fully with the bar’s investigation, had no prior discipline and submitted letters attesting to her good character.

RONALD G. GUERRA
OSB # 94327
Roseburg
30-day suspension
On March 19, 2003, the disciplinary board approved a stipulation for discipline suspending Roseburg lawyer Ronald Guerra from the practice of law for 30 days for violation of DR 1-103(C), DR 2-110(A)(2) and DR 6-101(B). The suspension was effective on March 21, 2003.

Clients retained Guerra to file a complaint with the Bureau of Labor and Industries and to pursue other claims for damages from their former employer. Between about August 1999 and August 2001, Guerra failed to take action to accomplish his clients’ objectives and did not pursue their claims. In about August 2001, Guerra sent a letter of demand to the former employer, but then took no action until about March 2002, when he prepared, but did not file, a civil complaint. Guerra thereafter withdrew from the representation.

In a second matter, a client retained Guerra concerning a claim for wrongful termination against his former employer. Between about June 1998 and June 2000, Guerra failed to actively pursue his client’s claim, but in June 2000, filed a civil complaint against the employer. Thereafter, Guerra learned that his client had lied in his employment application concerning his criminal record, which included convictions for theft and other crimes. Guerra notified the client that the case had been substantially compromised and that he would likely not prevail at trial. Guerra recommended that the client authorize settlement negotiations and told his client that he would withdraw from the representation if the case was not settled.

Guerra obtained a settlement offer from the defendant’s counsel, which the client rejected. Guerra then filed a motion to withdraw and also asked the court to reschedule the trial date. The court granted Guerra’s motion. At the time Guerra withdrew, he failed to refund the unused portion of the cost retainer to the client and failed to deliver a copy of his file to the client.

In January 2002, the client filed a complaint with the bar concerning Guerra’s conduct. Guerra provided an initial explanation, but thereafter failed to respond to the bar’s requests for additional information. The matter was referred to the Local Professional Responsibility Committee (LPRC) for further investigation. Guerra cooperated with the committee.

Guerra admitted that his conduct constituted failure to cooperate with the disciplinary authorities, improper withdrawal and neglect of legal matters entrusted to him in violation of DR 1-103(C), DR 2-110(A)(2) and DR 6-101(B) of the Code of Professional Responsibility.

Guerra was admitted to practice in Oregon 1994. He had no prior record of discipline.

JAMES C. HARVEY
OSB #77214
Newcastle, Calif.
Form B resignation
On March 23, 2003, the Oregon Supreme Court accepted a Form B resignation from James C. Harvey, who formerly practiced in California. Harvey was admitted in Oregon in 1977, but had been an inactive and suspended member here for many years. At the time of his resignation, a criminal proceeding in California was pending against Harvey alleging, among other things, embezzlement and theft of client funds and forgery.

GRIFFITH C. STEINKE HEALY
OSB # 80379
Las Vegas, Nev.
60-day suspension
On March 21, 2003, the disciplinary board approved a stipulation for discipline suspending Nevada lawyer Griffith C. Steinke Healy for 60 days for violation of ORS 9.527(2). The suspension was effective on March 28, 2003.

In June 2002, Steinke Healy was charged in Clatsop County Circuit Court with violating ORS 163.465, public indecency and ORS 163.467, private indecency. Thereafter, he entered pleas of no contest to the criminal charges and was convicted of the crimes. Steinke Healy stipulated that his conduct subjected him to discipline under ORS 9.527(2), which authorizes discipline for misdemeanors involving moral turpitude.

Steinke Healy was admitted to practice in Oregon in 1980. He had no prior record of discipline.

MICHAEL T. MULLEN
OSB #93377
Milwaukie
Public reprimand
On March 17, 2003, the disciplinary board approved a stipulation for discipline reprimanding Milwaukie lawyer Michael T. Mullen for violating DR 6-101(B) (neglect of a legal matter).

Mullen represented a client in a dissolution of marriage. On Oct. 27, 2000, the trial judge decided child support and custody issues, and assigned Mullen the task of preparing the order. Mullen did not take any action to do so until early December 2000, at which time he thought he mailed a proposed order to opposing counsel. However, the order was never received by opposing counsel, and Mullen’s file does not reflect that it was sent.

In November 2000, opposing counsel left Mullen messages asking about the order. Mullen did not respond. On Nov. 22, 2000, opposing counsel prepared his own proposed order. He forwarded this to Mullen, who did not respond. Opposing counsel filed his proposed order with the court, copying Mullen. On Dec. 19, 2000, the court sent the counsel a notice of entry of judgment. Mullen does not recall receiving opposing counsel’s proposed order or the entry of judgment.

On Jan. 18, 2001, Mullen’s client retained new counsel who discovered that an order had been entered, and that it did not accurately reflect the judge’s ruling. The client’s new counsel thereupon took steps to file a corrected order.

By failing to submit a proposed order, respond to opposing counsel’s telephone messages concerning a proposed order, take steps to follow-up with opposing counsel or take other action to ensure that an order was filed, Mullen neglected a legal matter entrusted to him.

STANLEY N. WAX
OSB # 76376
Portland
Public reprimand
On March 24, 2003, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer Stanley N. Wax for violation of DR 5-105(E).

Wax was retained by a newly formed corporate entity to prepare subscription agreements, stock certificates and a buy-sell agreement among its shareholders. Thereafter, Wax was named as corporate counsel.

Prior to Wax’s involvement, one of the corporate principals registered an assumed business name with the state, with the understanding that the name would be assigned to the corporation. However, before the assignment occurred, the corporate principal left the company.

Thereafter, Wax agreed to represent the corporate principal who left the first company in the formation of a different company, utilizing the assumed business name that the first corporation claimed belonged to it. Litigation ensued between the two companies over the business name. Although Wax did not represent either company in the litigation, he stipulated that his representation of the corporate principal in the formation of the second company was a current client conflict of interest in violation of DR 5-105(E), and that he did not obtain informed consent after full disclosure to his clients.

Wax was admitted to practice law in Oregon in 1976. He had no prior record of formal discipline.


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