Oregon State Bar Bulletin — JULY 2004


Note: Nearly 12,200 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.

On April 2, 2004, a trial panel of the disciplinary board dismissed a complaint alleging that a lawyer violated DR 7-106(C)(1) (state or allude to any matter that the lawyer has no reasonable basis to believe is relevant or that will not be supported by admissible evidence).

In early 2002, the lawyer was representing respondent in connection with motions to modify child support and for contempt. At the end of a hearing to consider those motions the court took the matter under advisement and left the record open for two days if either party wished to submit additional financial evidence.

Thereafter, the lawyer submitted to the court a copy of a 1995 psychological report concerning both parties. The report had been prepared in connection with the initial dissolution of marriage proceeding when custody of the parties’ minor child was at issue. The report had never been submitted to the court because the matter resolved before trial.

The bar alleged that the report was not relevant and was submitted to cast petitioner in a negative light. In an accompanying cover letter the lawyer explained that he was submitting the report to the court in the pending proceeding because it may provide some insight into the thinking and actions of the parties and give the court a bit of context for witness evaluation. Petitioner’s lawyer objected to admission of the report and the court sustained that objection.

The trial panel recognized that there was significant animosity between the lawyer and petitioner arising from the lawyer’s representation of respondent as well as from a bar complaint previously filed against the lawyer by the petitioner. Nonetheless, the trial panel dismissed the complaint because it found that the lawyer believed the report was relevant to the issue of credibility and that the lawyer’s belief was reasonable.

OSB #94511
Lake Oswego
6-month suspension
Pursuant to a stipulation for discipline approved by the disciplinary board on May 27, 2004, Lake Oswego lawyer Phyllis Koessler was suspended from the practice of law for a period of six months, effective July 1, 2004, for multiple violations of the disciplinary rules.

The charges arose out of Koessler’s conduct in four client matters. In a medical malpractice case, Koessler: failed to file amended pleadings or confer with opposing counsel, despite a court order that she do so; failed to comply with discovery orders; failed to respond to a motion for summary judgment; failed to locate necessary medical experts and failed to take other substantial action on behalf of her client. Koessler also represented to the court that she had a medical expert willing to testify in support of her client’s claims when she knew that this expert had not made a definite agreement to testify. Koessler stipulated that this conduct violated DR 1-102(A)(3), DR 1-102(A)(4), DR 6-101(B), DR 7-102(A)(5) and DR 7-106(A).

In a domestic relations case, Koessler received a check payable to her client and her client’s husband. When she was unable to contact the husband’s lawyer, Koessler called the husband and advised him that she had the check. Koessler stipulated that this conduct violated DR 7-104(A)(1).

In the third matter, Koessler undertook to represent a minor in a personal injury matter. After her client turned 18, Koessler took no substantial action on his case and did not respond to attempts by the client’s father to contact her about the case. She also failed to contact the client about his father’s authority to act on his behalf and failed to communicate with the client or his father about the status of the case. When the client retained new counsel, Koessler failed to deliver the client’s file to him. Koessler stipulated that this conduct violated DR 6-101(B), DR 7-101(A)(2), and DR 9-101(C)(4).

In the fourth matter, Koessler permitted a non-lawyer with whom she was associated to collect and hold a client’s retainer for legal fees paid in connection with a dissolution of marriage proceeding. Koessler stipulated that this conducted violated DR 9-101(A) and DR 9-101(C)(3).

Koessler also failed to respond to inquiries from disciplinary counsel’s office in violation of DR 1-103(C).

The stipulation recited that Koessler had no prior disciplinary record, she cooperated with the LPRC and had little experience in civil litigation. The stipulation also gave great weight in mitigation to the fact that Koessler experienced personal and emotional problems associated with serious or life threatening medical conditions suffered by Koessler’s husband and children during the time in which her conduct occurred.

OSB #90303
145-day suspension
On April 13, 2004, a trial panel of the disciplinary board issued an opinion, effective on June 16, 2004, suspending Portland lawyer Mark R. Humphrey for 145 days for violating DR 2-110(A)(2) (failing to properly withdraw) and DR 6-101(B) (neglect of a legal matter entrusted to a lawyer).

Humphrey filed a lawsuit on behalf of a client. The matter was transferred to arbitration. A few months later the court sent a notice to Humphrey that the lawsuit would be dismissed on a date certain if he failed to notify the court of the arbitrator selected and the arbitration hearing date. Humphrey did not timely respond to that notice and the lawsuit was dismissed.

Humphrey eventually responded to the court’s notice. However, the court returned the response to Humphrey and informed him that he needed to get the case reinstated and needed to comply with applicable arbitration rules. Humphrey was unaware that his response to the court had been returned because he went on vacation immediately after filing the response and did not open mail that had been collected by his business partner in his absence until a few months later.

In his response to the court, Humphrey reported that the matter was set for an arbitration hearing on a date certain, and that he may have to withdraw from the case because, among other things, he was retiring from the practice of law. Humphrey’s retirement resulted from a prior disciplinary matter in which he stipulated to a 90-day suspension from the practice of law.

Humphrey sent a copy of his response to the court to his client. Thereafter, Humphrey failed to communicate with his client. Specifically, Humphrey failed to inform his client that the arbitration hearing had been cancelled because the arbitrator discovered that Humphrey would be suspended on the date the arbitration was scheduled to occur — and failed to return his client’s telephone calls inquiring about the status of the matter.

Humphrey also violated DR 2-110(A)(2) when, before his suspension was to be effective, he failed to withdraw and failed to take reasonable steps to avoid foreseeable prejudice to the rights of his client.

OSB #67041
Form B resignation
Effective June 1, 2004, the Oregon Supreme Court accepted the Form B resignation of Neil E. Goldschmidt of Portland. At the time of the resignation, the bar had under consideration reports that Goldschmidt engaged in a sexual relationship with a minor in the 1970s, which implicated the provisions of DR 1-102(A)(2) (criminal conduct) and ORS 9.527(1) (conduct that would preclude admission). Goldschmidt was an inactive member of the bar prior to his resignation.

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