Oregon State Bar Bulletin — FEBRUARY/MARCH 2007

Note: More than 13,100 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.

Leonard C. Ostrow
OSB #83298
Public reprimand

On Dec. 13, 2006, the disciplinary board approved a stipulation for discipline reprimanding Leonard C. Ostrow for violation of RPC 1.3 (neglect), and RPC 1.4 (failure to communicate).

In May 2004, the court appointed Ostrow to represent a client concerning a post-conviction relief claim. Ostrow notified the client that he had been appointed and obtained a copy of a portion of the court’s file in the underlying criminal case. Thereafter, between about July 2004 and April 2005, Ostrow did not respond to his client’s inquiries and requests. He did not provide explanations reasonably necessary to permit his client to make informed decisions regarding the representation, and he did not substantively pursue or advance the client’s interests and objectives in the post conviction case. In late April 2005, the client filed a motion for the appointment of new counsel to represent her interests. The court granted the motion.

Ostrow was admitted to practice in Oregon in 1983. He had no prior record of discipline.

Thomas W. Nawalany
OSB #93083
Public reprimand

On Dec. 31, 2006, the disciplinary board approved a stipulation for discipline reprimanding Thomas W. Nawalany for violation of DR 6-101(A) (failure to provide competent representation).

A woman immigrated to the United States in the 1940s, and in 2001, she was about 93 years old. The woman received services from the state senior services department. Since about 1998, the woman demonstrated deterioration in her mental health, including paranoia and dementia, but continued to be able to reside in her own home.

In late August 2001, the woman was suffering from arterial fibrillation and congestive heart failure. After a short hospital stay, she was released and placed temporarily by senior services in an adult foster home. About a week later, the operator of the home contacted Nawalany’s office and spoke with his assistant. The operator told Nawalany’s assistant that she knew of a woman who needed someone to draft a will; that the testator wanted to leave her house to the operator; and that time was of the essence. The operator did not disclose to Nawalany or his assistant that she was operating a care facility or that the testator was a resident placed by the state in that facility. Nawalany traveled from Portland to Salem that evening to meet with the elderly woman. Nawalany had no previous relationship with and did not know either the woman or the operator of the adult foster home.

Nawalany met with the elderly woman and the same evening prepared a will, which the woman signed, in which the woman bequeathed all of her possessions, including her home, to the operator of the foster home. The 19-year old son of the foster care facility operator was named in the will as the personal representative of the woman’s estate. Nawalany also prepared and the woman signed a durable general power of attorney in which the son was named the woman’s agent and attorney-in-fact.

Nawalany failed to make sufficient inquiry and to devote sufficient time with the woman to determine her mental state, the extent of her affairs, her relationships with the adult foster care operator and the son, and her living arrangements before preparing and presenting the will and power of attorney to the elderly woman and obtaining her signature on the documents. At the time, foster care providers were prohibited from accepting gifts
from persons in their care. Nawalany failed to use the requisite thoroughness and preparation reasonably necessary for the representation.

Nawalany was admitted to practice in Oregon in 1993. He had no prior record
of discipline.

Jason C. McBride
OSB #03395
Public reprimand

Effective Jan. 9, 2007, the disciplinary board approved a stipulation for discipline publicly reprimanding Salem attorney, Jason C. McBride for a violation of RPC 1.3 (neglect of a legal matter).

McBride was paid a $1500 retainer in March 2005 to garnish the bank account of his client’s former husband pursuant to a money judgment. McBride did very little on her case. After hearing nothing for several months, the client contacted McBride in November 2005, and was told that a bank garnishment could not be done.

When the client met with McBride in January 2006 on another matter, she inquired as to the status of the garnishment. McBride discussed possible options with her but thereafter failed to implement the discussed alternatives.

In May 2006, in response to a letter of complaint from the client, McBride withdrew from the garnishment matter. He also immediately refunded her entire retainer, even though some of it had been expended at her request on another legal matter handled by McBride, and he apologized for failing to attend to the matter.

In addition to McBride’s attempts to rectify his misconduct by refunding his client’s retainer, the stipulation recited mitigating factors including: a lack of prior discipline; relative inexperience in the practice of law; and personal or emotional problems resulting from the serious illness of family members and the death of his
assistant in an automobile accident.

Richard T. Perry
OSB #82103
97-day suspension

Effective Jan. 17, 2007, a trial panel of the disciplinary board suspended former Hillsboro lawyer Richard T. Perry for 97 days for violations of: DR 6-101(B) & RPC 1.3 (neglect); DR 7-102(A)(2) (failure to carry out a contract of employment); RPC 1.4(a) (failure to keep a client reasonably informed about the status of a matter) and RPC 1.4(b) (failure to explain a matter reasonably necessary for informed decisions regarding the representation).

Perry undertook to represent a couple in an uncontested step-parent adoption. After filing the petition, Perry took no further steps to complete the adoption prior to its dismissal more than a year later. Perry’s clients made repeated attempts to contact him without success. When they finally did reach him, Perry told the clients that there was problem with the petition and it would need to be re-filed, but he did not tell them that the first petition had been dismissed due to his inaction. Perry filed a second petition years after the first was dismissed, but this too was later dismissed by the court when Perry similarly failed to take any action.

The clients made additional attempts to contact Perry and discovered that he had moved without notice to them. Perry thereafter continued to avoid his clients, causing them to eventually hire another attorney to complete the adoption -- more than five years after hiring Perry. The
new attorney completed the adoption in 90 days.

In suspending Perry for 97 days, the trial panel found that the sanction was mitigated by Perry’s lack of prior discipline. However, the sanction was aggravated by a number of factors, including Perry’s substantial experience in the practice of law and dishonest motive in failing to truthfully inform his clients of the cause of the dismissal.

Gary A. Bisaccio
OSB #73030
Public reprimand

Effective Jan. 18, 2007, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland attorney Gary Bisaccio for neglect (DR 6-101(B) and RPC 1.3) and conduct prejudicial to the administration of justice (RPC 8.4(a)(4)).

The violations arose in a conservatorship brought by Bisaccio on behalf of a minor client who had received a structured monetary settlement in a personal injury action. Bisaccio established the conservatorship in June 2004, and the client’s mother was appointed as the conservator in August. No bond was required, but the settlement proceeds were to be deposited in a restricted account and, within 30 days, the UTCRs required Bisaccio to submit an acknowledgment of restriction -- a writing signed by the depository acknowledging that the settlement proceeds were being held and subject to withdrawal only on further order of the court.

Bisaccio did not timely file the acknowledgment, and it thereafter slipped his mind. He was reminded of his obligation by the probate coordinator in August 2005, but did not attempt to file the acknowledgment until March 2006, despite two citations for removal issued by the court. In addition, Bisaccio negligently failed to calendar the show cause hearing on the latter citation for removal and therefore did not appear for the hearing. The appropriate acknowledgment was filed in May 2006.

Bisaccio’s sanction was aggravated by his substantial experience in the practice of law. Bisaccio was admitted in Oregon in 1973. However, in mitigation, the stipulation recited factors including Bisaccio’s lack of prior discipline, the absence of a dishonest or selfish motive, and remorse.

J. Kevin Hunt
OSB #84252
Oregon City
Public reprimand

Effective Jan. 18, 2007, the disciplinary board approved a stipulation for discipline publicly reprimanding Oregon City attorney J. Kevin Hunt for violations of RPC 1.4(a) (failure to adequately communicate with a client) and RPC 8.1(a)(2) (failure to respond to a disciplinary authority).

Hunt undertook to represent an elderly, indigent woman pro bono on potential appeals of two adverse Employment Department decisions. At the time Hunt received the file materials, however, the appeal period had lapsed regarding one of the decisions.

In reviewing the cases, Hunt determined that neither a petition for judicial review nor a petition for reconsideration would be effective. Therefore Hunt sent a letter to the Employment Department and attempted to persuade its director to civilly compromise its claim. Hunt’s client was provided a copy of the letter, but not a copy of the Employment Department’s response. Thereafter, Hunt did not respond to the client’s inquiries regarding the status of her matter.

When the client complained to the bar, Hunt responded to requests for information, but did not respond to follow-up inquiries requesting additional details on two specific issues. Believing he had already provided information responsive to the stated inquiries, Hunt made no further response, despite additional correspondence from the bar requesting that he do so.

The stipulation indicated that Hunt’s lack of communication did not ultimately injure his client’s legal matter. Also significant was that Hunt did not act selfishly or dishonestly, but actually undertook the representation in an effort to assist the client in a time of crisis and he expressed remorse for failing to communicate with her adequately. Other mitigating factors included a physical disability affecting Hunt prior to and during this time period and personal and emotional problems arising from the period of physical disability.

Among the listed aggravating factors was a prior admonition for neglect
(including a failure to communicate) in 1993, and substantial experience in the practice of law. Hunt was admitted in Oregon in 1984.

James J. Kolstoe
OSB #85258
4-year suspension

Effective Jan. 22, 2007, James J. Kolstoe was suspended from the practice of law for 4 years for violation of DR 1-102(A)(2) (criminal conduct reflecting on lawyer’s honesty, trustworthiness or fitness to practice law). Kolstoe failed to file personal income tax returns for 7 years in violation of the state and federal laws. Kolstoe did not file a request for supreme court review of the disciplinary board’s decision to suspend him.

Kolstoe was admitted to practice in Oregon in 1985. He had no prior record of discipline at the time his misconduct in this case was discovered, but was later suspended for 60 days concerning unrelated misconduct.

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