Oregon State Bar Bulletin — FEBRUARY/MARCH 2004

Discipline

Note: Nearly 12,100 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.

STEVEN C. BALDWIN
OSB #83144
Eugene
Public reprimand

On Dec. 30, 2003, the disciplinary board approved a stipulation for discipline reprimanding Eugene lawyer Steven C. Baldwin for violating DR 5-101(A) (lawyer self-interest conflict of interest).

Baldwin undertook to represent a client in a dissolution of marriage proceeding. At the time Baldwin was having a personal and sexual relationship with the client. Baldwin informed his client that because of their personal relationship he would not be able to represent her if the dissolution of marriage proceeding went to trial. That conversation did not constitute full disclosure as Baldwin did not fully explain to his client the potential adverse impact to her of having him represent her, did not recommend that she seek independent legal advice to determine if she should give consent and did not otherwise satisfy the requirements of DR 10-101(B)(2).

GARY L. HILL
OSB #74140
Roseburg
30-day suspension

On Dec. 26, 2003, the Oregon Supreme Court issued an order dismissing Roseburg attorney Gary Hill’s appeal of a trial panel opinion suspending Hill from the practice of law for 30 days. Hill failed to file an opening brief with the court, resulting in the dismissal. His suspension was effective Feb. 1, 2004.

Hill was found by the trial panel to have violated DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 5-105(E) (current client conflict of interest) and DR 6-101(A) (incompetence). Hill represented a friend and his daughter in establishing a joint-guardianship for the friend’s incapacitated wife. Hill failed to recognize that the interests of the friend and his daughter were in likely conflict and accordingly he failed to advise them to consult with independent counsel. Hill had his staff prepare the guardianship paperwork but did not review it prior to it being filed with the court. The petition did not list all of the necessary parties and cited statutes that had long-since been repealed. The petition was not served on all necessary parties, but it was nevertheless approved by the court, as presented.

Following establishment of the guardianship, Hill’s friend approached him to file a dissolution from his wife, both to prevent the friend’s assets from being consumed by his wife’s care, and to allow the friend to marry one of his wife’s care providers. Hill had his staff prepare the petition, failing to recognize or advise that a conflict of interest existed between his friend’s responsibilities as his wife’s guardian and his interests in petitioning for divorce. Neither the petition nor the subsequent default pleadings were reviewed by Hill. Neither informed the court that the wife was a protected person, and errors in the documents prevented the disposition of the real property of the parties. In addition, the co-guardian was not named as a party to the action as required by procedural rules. The petition and default were served on the daughter, but she did not appear. Hill did not advise the daughter of her likely or actual conflict in acting as the wife’s guardian and failing to appear or contest the dissolution.

In determining the appropriate sanction, the trial panel acknowledged that Hill did not have a dishonest or selfish motive, cooperated fully with the investigation, had a good character or reputation and was remorseful for his conduct.

LLOYD S. KUMLEY
OSB #84127
Salem
Public reprimand

On Aug. 14, 2003, the Oregon Supreme Court reprimanded Salem attorney Lloyd S. Kumley for violating DR 1-102(A)(3) (misrepresentation), DR 1-102(A)(2) (criminal conduct reflecting adversely on a lawyer’s honesty, trustworthiness and fitness to practice) and ORS 9.160 (holding himself out as an attorney when he was not authorized to do so). Kumley’s petition for reconsideration was denied Nov. 5, 2003.

Kumley was admitted to practice in Oregon in 1984. In 1992, he transferred to inactive membership status with the bar. Inactive members are prohibited from practicing law or from holding themselves out as attorneys.

In early 2000, Kumley took steps toward running for a seat in the Oregon House of Representatives. In doing so, he filed a declaration of candidacy and a candidate’s statement for the State Voters Pamphlet in which he represented his present occupation to be an 'attorney.' The information Kumley submitted in the candidate’s statement for the State Voters’ Pamphlet was also published in the State Voters’ Pamphlet. Kumley also filed a verified statement of economic interest in which he represented that, in the year 1999, he was a self-employed attorney for a business named 'Lloyd Kumley, Attorney at Law.'

The court found that Kumley, by choosing to describe his present occupation as an 'attorney' in the declaration of candidacy and the statement for the State Voters’ Pamphlet, represented that he was an active attorney at that time and knowingly chose to create a false impression that he presently was a practicing attorney when he was not. His conduct constituted misrepresentations and violated DR 1-102(A)(3) and ORS 9.160. The court also found that Kumley committed criminal acts, false swearing and other crimes, which reflected adversely on his honesty, trustworthiness and fitness to practice law and violated DR 1-102(A)(2).

Kumley had no prior record of discipline.

JEANETTE T. MARSHALL
OSB #43010
Medford
Public reprimand

On Dec. 22, 2003, the disciplinary board approved a stipulation reprimanding Medford lawyer Jeannette T. Marshall for violating DR 5-105(C) (former client conflict of interest) on two occasions.

Marshall prepared a will for a client. The will equally divided the client’s estate between her daughter, her son and her granddaughter. One and one-half years later, Marshall undertook to represent the client’s daughter for the purpose of having her appointed guardian and conservator of the client. In the petition for appointment of guardian and conservator, the client’s daughter asserted that the client had been in an advancing state of senility for at least five years. Marshall failed to obtain consent after full disclosure from the client and her daughter before undertaking to represent the daughter in the guardianship and conservatorship matter.

Marshall prepared a will for another client. The will directed the client’s son and step-daughter to act as co-personal representatives of the client’s estate. Later that same year, while the client was still alive, Marshall undertook to represent the step-daughter. In connection with that representation, Marshall prepared a petition to probate the client’s will, contending that the step-daughter should be named sole personal representative. Marshall failed to obtain consent after full disclosure from the client and his step-daughter before undertaking to represent the step-daughter.

SCOTT W. MCGRAW
OSB #82003
Salem
Public reprimand

Effective Jan. 15, 2004, a trial panel reprimanded Salem lawyer Scott W. McGraw for violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 6-101(B) (neglect of a legal matter) in six matters.

In four matters, the court appointed McGraw as successor conservator or personal representative. In the other two matters, McGraw was representing a conservator or personal representative.

In all six matters, over the course of a number of years, McGraw failed to respond to numerous court inquiries and failed to comply with statutory reporting requirements.

The trial panel acknowledged that Oregon case law supported the imposition of a suspension. However, it reprimanded McGraw because there was evidence that he accepted the court’s appointment in difficult cases with little hope of adequate compensation for his time and effort.

TERENCE S. McLAUGHLIN
OSB #84073
Carlton
Public reprimand

On Nov. 25, 2003, the disciplinary board approved a stipulation for discipline reprimanding Carlton lawyer Terence S. McLaughlin for violation of DR 5-101(A) (lawyer self-interest conflict) and DR 5-104(A) (doing business with a client).

One of McLaughlin’s clients invested funds in a company that was trying to develop and market some computer technology. The client sought McLaughlin’s advice on how to preserve that technology, given that it was an asset in a pending Chapter 11 bankruptcy proceeding. For several months thereafter, the client had a reasonable expectation that McLaughlin was representing him with regard to that matter.

McLaughlin’s client formed a new corporation for the purpose of developing and marketing the computer technology. The parties involved in that corporation agreed that McLaughlin would become president. As president, McLaughlin was obligated under the law to act solely in the interests of the corporation. By agreeing to become an officer in the corporation, McLaughlin entered into a business transaction with his client when the client expected McLaughlin to exercise his professional judgment for the client’s protection. McLaughlin spoke with his client about his new role and sent him a letter confirming their conversation. While that letter generally informed the client that McLaughlin’s participation in the corporation could create a conflict of interest between them, neither the conversation nor the letter constituted full disclosure because McLaughlin did not fully explain to his client the potential adverse impact on him of McLaughlin becoming president of the corporation.

After McLaughlin agreed to and did become president of the corporation, the client expected McLaughlin to exercise his judgment to protect the client’s interests in the corporation. McLaughlin failed to fully explain to his client that the structure of the corporation was such that McLaughlin’s interests as president potentially differed from the client’s.

NAME WITHHELD
Dismissed

On Dec. 26, 2003, the Oregon Supreme Court dismissed disciplinary charges brought by the bar against a lawyer who was accused of practicing law while suspended.

The disciplinary proceedings alleged that the lawyer violated DR 3-101(B) (practicing law in violation of a jurisdiction’s regulations), DR 1-102(A)(3) (conduct involving dishonesty or misrepresentation), ORS 9.160 (unlawful practice of law) and ORS 9.527(1) (conduct that would result in denial of admission) when she: practiced law during a period of time when she had been suspended for failure to pay a quarterly installment of her Professional Liability Fund assessment; represented to courts, clients and opposing counsel that she was qualified to practice law during her period of suspension; and represented in her application for reinstatement to the bar that she had not practiced law during her suspension.

In dismissing the charges, the court found that the notices of suspension issued by the PLF in the course of its installment payment program did not comply with the requirements of ORS 9.200(1). Accordingly, the court concluded that the lawyer’s suspension was void and could not have served as the basis for a claim that the lawyer violated DR 3-101(B) or ORS 9.160 by practicing law while suspended. Similarly, the void suspension could not have supported a claim that the lawyer violated DR 1-102(A)(3) or ORS 9.527(1) by representing to others that she was qualified to practice law or by representing in her reinstatement application that she had not practiced law during the period of her suspension.

NAME WITHHELD
Dismissed

Effective Jan. 22, 2004, the disciplinary board dismissed a complaint alleging that an Oregon lawyer violated Rule 203(3) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Nevada Code of Professional Responsibility.

For a number of years, the lawyer, through a business separate from his law practice, invested funds on behalf of a Nevada client. The client then requested that the lawyer liquidate the investments he had made on her behalf. She ultimately filed a lawsuit against the lawyer because he did not liquidate all of the assets in her account in a timely manner.

The parties eventually settled the lawsuit. As part of the settlement, the lawyer executed an affidavit in which he represented that his conduct with respect to his client’s funds constituted misappropriation and defalcation of her funds and a breach of his fiduciary duties to her. At the time the lawyer signed the affidavit, he knew that this representation was false. This affidavit was intended to be held by the client and submitted to a bankruptcy court should the lawyer file for bankruptcy protection before he satisfied the terms of the settlement. The lawyer never filed for bankruptcy protection and eventually satisfied the settlement agreement.

The disciplinary board, applying Nevada law under the applicable choice of law rule, concluded that the bar failed to establish by clear and convincing evidence that the lawyer’s conduct violated the Nevada disciplinary rule.

SHAWN M. SORNSON
OSB #91438
Salem
30-day suspension

On Jan. 11, 2004, the disciplinary board approved a stipulation for discipline suspending Salem attorney Shawn M. Sornson for 30 days for violation of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 2-106(A) (charging or collecting an illegal or excessive fee). The suspension was effective Feb. 15, 2004.

In March 1997, Sornson’s law firm was retained to file a petition for the appointment of guardian and conservator. A petition was filed and the court appointed a guardian and conservator. Sornson was thereafter assigned responsibility for the case. Annual accountings needed to be filed within 30 days after each anniversary of the appointment of the conservator.

Between 1998 and 2002, Sornson failed to timely file the accountings or request extensions of time to do so. He and his law firm collected attorney fees for legal services without court approval. On multiple occasions, the court asked Sornson to provide information and to take certain actions. Sornson failed to submit timely and complete information to the court. Some of the information Sornson submitted to the court was not accurate. Sornson did not confirm the accuracy of the information before submitting it to the court.

Sornson was admitted to practice in Oregon in 1991. He had no prior record of discipline.

JAMES T. WILKERSON
OSB #93522
San Carlos, Calif.
Form B resignation

Effective Dec. 16, 2003, the Oregon Supreme Court accepted the Form B resignation of San Carlos, Calif. lawyer James T. Wikerson. At the time of the resignation, Wilkerson was being investigated for alleged violations of DR 1-102(A)(4) (conduct prejudicial to the administration of justice), DR 1-103(C) (failure to cooperate), DR 6-101(A) (failure to provide competent representation), DR 6-101(B) (neglect), DR 7-101(A)(2) (intentional failure to carry out a contract of employment) and DR 9-101(C)(4) (failure to promptly deliver client property as requested by a client) involving his handling of a probate matter.

Wilkerson was admitted to practice in Oregon in 1993. He had a prior record of discipline. Wilkerson represented in his resignation that his client files will or have been delivered to the clients.

CLARK WILLES
OSB #86316
Corvallis
Public reprimand

On Dec. 22, 2003, the disciplinary board approved a stipulation for discipline reprimanding Corvallis attorney Clark Willes for violating DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 6-101(B) (neglect of a legal matter).

Between 1998 and 2003, Willes represented several clients in defense of criminal charges. In these matters, Willes was either late or failed to appear for scheduled pre-trial or other status conferences. As a result, the court was required to reschedule the matters.

In August 2002, Willes was appointed to represent a client in obtaining DNA testing in connection with an earlier criminal conviction. As of October 2002, Willes had neither notified his client of the appointment, nor taken any action on the client’s behalf. The client contacted the court regarding the status of his request for counsel. The court notified the client of Willes’ appointment. The client sent Willes two letters seeking confirmation of Willes’ appointment and information on his matter. After receiving no response, the client concluded that no appointment had been made and filed a mandamus action against the judge. In January 2003, after the court informed Willes of the mandamus action, Willes contacted his client and commenced work on the matter.

Willes has no prior record of discipline.

CALVIN H. LEUTJEN
OSB #54053
Portland
One-year suspension

On Jan. 27, 2004, the Oregon Supreme Court approved a stipulation suspending Portland lawyer Calvin H. Leutjen for one year, effective March 27, 2004, for violating DR 2-106(A) (charging a clearly excessive fee), DR 5-101(A) (lawyer self-interest conflict) and DR 5-104(A) (doing business with a client).

Between 1989 and mid-2001, Leutjen represented a client in various legal matters. In 1993, Leutjen borrowed a total of $400,000 from the client. The loans were not secured and the promissory notes did not specify a due date for repayment. Leutjen orally discussed with the client some adverse impact on her of loaning funds to him, but failed to disclose all of the potential adverse impact and otherwise failed to obtain her consent after full disclosure.

After Leutjen borrowed funds from his client and while he was indebted to her, he undertook to represent her in various matters. In connection with that legal work, the exercise of Leutjen’s professional judgment on behalf of his client was or reasonably may have been affected by his own financial or personal interests. Leutjen failed to obtain consent after full disclosure from his client before undertaking to represent her in those matters.

At the end of 1993, the client agreed to forego collecting interest payments from Leutjen in connection with the funds he had borrowed from her. In exchange, Leutjen agreed not to charge the client for any legal work that he did for her, her family or her estate in the future. For the years 1995 through 2001, the value of the work that Leutjen performed for his client or her family was less than the value of the interest payments waived by the client, to the point that Leutjen charged his client a clearly excessive fee.

The stipulation noted that the client sustained actual and substantial injury in that she did not get a fair rate of return on the funds she loaned to Leutjen and that he remains indebted to her for $370,000. In mitigation, the stipulation states that Leutjen did not have a prior disciplinary record, cooperated in the bar proceeding, was remorseful and had signed a stipulated judgment agreeing to reimburse his client.


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