|Oregon State Bar Bulletin JANUARY 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.
Effective Oct. 29, 2006, a trial panel of the disciplinary board suspended former Lake Oswego attorney Phyllis Koessler for two years for violation of DR 1-103(C) (failure to cooperate with the bar); DR 6-101(B) (neglect of a legal matter) and DR 9-101(C)(3) (failure to maintain complete records of client funds).
In July 2002, Koessler undertook to represent a client in a step-parent adoption. Pursuant to a written fee agreement, the client paid Koessler a retainer, which Koessler deposited into her lawyer trust account. Koessler did not account to her client for the retainer until after the representation was terminated in May 2004, and the records she kept of her trust account disbursements contained numerous errors and omissions.
During the 21 months Koessler represented her client, she obtained an order of default against the putative father, but did not obtain a decree of adoption, and the matter was eventually dismissed. Koessler failed to advise her client that the adoption proceeding had been dismissed and that she had moved her residence from Oregon to New York. Late in the representation, Koessler advised her client that she had inadvertently closed the client’s file and represented that she would correct this oversight and complete the adoption within several weeks. Koessler did not take action on the client’s case. Instead, she attempted to terminate the representation because her client expressed dissatisfaction with the delay in finalizing the adoption. Thereafter, Koessler failed to respond to the client’s attempts to contact her.
When the bar received a complaint from Koessler’s client, Koessler failed to respond to disciplinary counsel’s inquiries until after the matter had been referred to a local professional responsibility committee. Koessler’s failure to respond to disciplinary counsel’s inquiries occurred within months after she had entered into a stipulation for discipline in a previous case that involved four separate failures to respond to the bar.
In arriving at a sanction, the trial panel found that Koessler’s conduct was intentional, involved multiple offenses and was similar to prior disciplinary offenses. The panel also noted that Koessler refused to acknowledge the wrongful nature of her conduct and had substantial experience in the practice of law.
Effective Nov. 28, 2006, the disciplinary board approved a stipulation for discipline suspending Tigard lawyer Patrick Furrer for 30 days for violations of DR 1-102(A)(4) (conduct prejudicial to the administration of justice) and DR 7-110(B) (unauthorized ex parte communication) in connection with Furrer’s representation of a client, the wife in a contentious dissolution proceeding.
In the course of this representation, Furrer served a records subpoena on the husband’s employer without prior notice to the husband or his attorney, unaware that this was contrary to ORCP 55D.
Furrer also obtained an ex parte wage withholding order acting on the mistaken belief that the husband had not paid his spousal support obligation. Furrer did not comply with the statutory requirements for the issuance of an ex parte wage holding order. In addition, through an oversight, neither the husband nor his attorney was provided notice of this order, so they did not learn of the order until funds were removed from the husband’s paycheck. When Furrer was thereafter notified that the opposing party had timely made the support payment and was not delinquent, Furrer did not release the wage withholding order, but continued to assert its validity, believing there had been prior delinquent payments by the husband. None of the alleged delinquent payments identified by Furrer were support payments, however. A hearing was necessary to address Furrer’s claim of entitlement to the wage withholding order, following which the court vacated the order after finding that the husband had not been delinquent.
Finally, Furrer appeared ex parte and obtained an order granting his client the exclusive use of the family home to remove her personal property from the residence (which had been awarded to the husband pending sale). However, the only prior notice given to the husband’s attorney was a faxed copy of the proposed order sent by Furrer on his way to the courthouse.
The stipulation recited that, in addition to the unauthorized ex parte communication with the court, the foregoing incidents collectively amounted to conduct prejudicial to the administration of justice. Furrer’s misconduct was aggravated by a prior admonition for a violation of DR 7-110(B), as well as his substantial experience in the practice of law. In mitigation, the stipulation stated that Furrer did not act with a dishonest or selfish motive and was cooperative in the disciplinary proceeding.
DEBORAH L. ABERNATHY
On Dec. 5, 2006, the Oregon Supreme Court reprimanded Deborah L. Abernathy, imposing reciprocal discipline for ethics violations that led to Abernathy’s censure in Arizona where she practices law.
Abernathy represented a client in a child support matter, but did not appear at a scheduled evidentiary hearing or move for a continuance. Abernathy also failed to appear at a subsequent show cause hearing or keep her client informed about the status of the proceeding. Abernathy was found in contempt by the trial judge. In the Arizona disciplinary proceeding that followed, Abernathy was found to have violated Arizona’s Rules 1.1 (competence), 1.2 (abiding by client’s decisions), 1.3 (neglect), 1.4 (communication with client), 3.2 (failure to expedite litigation), 3.4 (disobeying a court rule) and 8.4(d) (conduct prejudicial to the administration of justice). Evidence of substantial mitigating circumstances resulted in an agreement that Abernathy be censured and placed on probation for one year. The Arizona Supreme Court approved this disposition in January 2006.
MICHAEL M. PACHECO
Pursuant to a stipulation for discipline approved by the Oregon Supreme Court on Dec. 5, 2006, Michael M. Pacheco of Salem was suspended for a period of four years, effective Dec. 10, 2006, for violation of ORS 9.527(1) (conduct that would prejudice admission to the bar); ORS 9.527(2) (conviction of a misdemeanor involving moral turpitude); RPC 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal); RPC 8.2(a)(2) (criminal conduct reflecting adversely on honesty, trustworthiness or fitness as a lawyer) and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).
Pacheco stipulated that in October 2003, he made an unwanted sexual advance toward a former employee and physically restrained her while doing so. In December 2003, Pacheco attempted to subject a 17-year-old female employee to sexual contact by restraining her and attempting to kiss her. In May 2005, Pacheco subjected a different female employee to two unwanted, and more serious, sexual advances. On June 7, 2006, Pacheco was convicted of two counts of sex abuse III and one count of attempted sex abuse III for this conduct.
In a client-related matter, Pacheco represented the plaintiff in a wrongful death suit against several defendants. The court dismissed the claims against a number of defendants for want of prosecution. Thereafter, Pacheco filed a motion to set aside the judgment of dismissal and represented that the lawyers for the dismissed defendants had no objections to it. Pacheco further represented that he had consulted with opposing counsel about his motion and that they had no objections. Pacheco had not consulted with one of the lawyers about whom he made representations, and this lawyer did, indeed, have objections to the motion to set aside the judgment of dismissal.
In determining the appropriate sanction to be imposed, the stipulation recited that Pacheco acted with a selfish motive and engaged in a pattern of misconduct that involved multiple disciplinary offenses. It also considered the harm done to Pacheco’s victims, that the victims were particularly vulnerable in that Pacheco was their employer, and that Pacheco had substantial experience in the practice of law. In mitigation, the stipulation recited that Pacheco had no prior record of discipline and that other penalties were imposed including his incarceration for approximately one year pending the outcome of criminal proceedings.
PAUL D. GEAR
On Dec. 7, 2006, the Oregon Supreme Court issued an opinion denying the reinstatement application of Paul D. Gear. Gear formerly practiced in Washington and Umatilla counties. He was suspended for disciplinary reasons in 2001-2002, and applied for reinstatement in 2004. The Board of Governors opposed the application and Gear sought court review. However, he failed to file a responsive pleading in the contested reinstatement proceeding or make any appearance at a hearing before a trial panel or before the court. As a result, the court determined that Gear did not meet his burden of proving the requisite character and fitness for reinstatement.
Effective Dec. 15, 2006, the disciplinary board approved a stipulation for discipline suspending Salem lawyer Kasia Quillinan for 90 days for violations of RPC 1.6(a), RPC 1.9(c)(1) and RPC 1.9(c)(2) (revealing confidential client information).
Quillinan drafted and transmitted an e-mail to members of the bar’s workers’ compensation listserve disclosing information related to her representation of a "difficult" former client, whom she named, including personal and medical information. Quillinan also suggested in the email message that the client was "shopping" for a new lawyer after rejecting a "very unfair" offer from the insurer.
The stipulation stated that the sanction was aggravated by a self-serving motive and Quillinan’s substantial experience in the practice of law. In mitigation, the stipulation recited that Quillinan has no prior discipline, fully cooperated in the bar proceeding and expressed remorse for her conduct.