|Oregon State Bar Bulletin NOVEMBER 2006|
Note: More than 12,770 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.
JUDSON M. CARUSONE
By order dated Sept. 12, 2006, the disciplinary board approved a stipulation for discipline whereby Judson M. Carusone received a public reprimand for engaging in conduct prejudicial to the administration of justice (DR 1-102(A)(4)) and having improper ex parte contact with the court (DR 7-110(B)(2) and DR 7-110(B)(3)).
Carusone represented the husband in a dissolution of marriage. The parties agreed that certain assets would be placed into a trust created for the benefit of the wife and the parties’ four children, in lieu of child and spousal support. The wife was named trustee of the trust. Approximately three months after the judgment of dissolution was entered, a dispute arose regarding assets to be placed into the trust, the use of trust assets and the judgment of dissolution itself. Carusone represented the husband in this post-judgment dispute; his wife was also represented by counsel.
Without notice to the wife or her counsel, Carusone filed a motion and order appointing the husband guardian ad litem over the children for purposes of filing an action against the wife as trustee, a motion for appointment of receiver (seeking to temporarily suspend the wife as trustee) and his own affidavit in support of the motion to appoint a receiver. The ex parte motion did not contain the term "ex parte" in the captions, as required by UTCR 5.060(2). ORCP 80C states that no receiver shall be appointed without notice to the adverse party of at least five days prior to the time specified for a hearing unless a different period is set by court order. Carusone was not aware of this requirement and did not give advance notice to the wife or her counsel that he would appear in court to present the motions.
By filing these motions and obtaining orders ex parte, Carusone communicated in writing with the court on the merits in an adversary proceeding without proper notice to opposing counsel or to the adverse party. This conduct also constituted conduct prejudicial to the administration of justice.
MICHAEL E. ROSE
On Oct. 13, 2006, the disciplinary board approved a stipulation for discipline reprimanding Portland attorney Michael E. Rose for violations of DR 6-101(B) and RPC 1.3 (neglect of a legal matter); RPC 1.4 (failure to communicate); DR 2-106(A) (excessive fee); DR 9-101(A) and RPC 1.5(a) (failure to maintain client funds in trust) and RPC 1.16(d) (failure to comply with obligations on termination of employment).
A client retained Rose to handle the appeal of the trial court’s decision denying his petition for post conviction relief. Rose agreed to handle the matter for a flat fee, which was paid in advance. Rose initially deposited the funds into his lawyer trust account, but shortly thereafter withdrew the funds and deposited them in his general account. Although Rose had previously provided legal services to the client for other matters pursuant to written fee agreements that provided that the fees were earned on receipt, Rose did not have such an agreement for the appeal of the post conviction case.
The client notified his court-appointed counsel that his services would not be needed because he had retained Rose to handle the appeal. In the months that followed, Rose failed to notify the court that he had been retained and failed to take action concerning the appeal. The client sent letters to Rose regarding legal issues for his appeal and requested a copy of certain documents and the opportunity to review the opening brief before it was filed with the court. Rose did not respond.
The court sent the client’s court-appointed attorney notice that the opening brief was past due and that the appeal was about to be dismissed. The court-appointed attorney obtained an extension of time and notified the client that Rose had not taken action. The client terminated Rose and demanded the return of the funds paid for the appeal. Rose did not respond promptly, but ultimately refunded the fee to the client’s mother.
Rose was admitted to practice in 1975. He had no prior record of discipline.