Oregon State Bar Bulletin — JUNE 2008

Bar Actions

Discipline

Note: More than 13,000 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.

IAIN E. LEVIE
OSB #913597
Scotland
6-month suspension

On March 10, 2008, the disciplinary board approved a stipulation for discipline suspending former Portland lawyer Iain E. Levie from the practice of law in Oregon for six months, effective May 7, 2008, for violations of RPC 1.15-1(b) (depositing the lawyer’s own funds into trust) and RPC 8.4(a)(3) (dishonesty or misrepresentation). The suspension begins immediately following Levie’s 18-month suspension in a prior disciplinary matter.

For a period of approximately three years, Levie improperly deposited and maintained funds that belonged to him in his lawyer trust account. Levie also paid personal and business obligations from his funds in the account. Levie knew he had creditors who could have sought to obtain the funds, and he knew that by maintaining his personal funds in the account he was falsely representing that the funds did not belong to him.

In reaching a sanction, the stipulation noted that Levie previously was disciplined for similar misconduct, but the impact of the prior misconduct as an aggravating factor was reduced by the fact that the majority of the instant misconduct occurred before the imposition of any prior sanction.

 

KURT CARSTENS
OSB #720484
Newport
Public reprimand

On April 7, 2008, the disciplinary board approved a stipulation for discipline reprimanding Newport attorney Kurt Carstens for violations of RPC 5.5(b)(2) of the Rules of Professional Conduct, and ORS 9.160.

Carstens’ license to practice law was suspended for a disciplinary rule violation in 2006. During the suspension, he was not authorized to practice law, or to hold himself out to the public or to represent that he was an attorney at law. During the suspension, Carstens at times continued to use and allowed members of his firm to use office letterhead on which he was identified as an attorney with the firm; failed to remove his name and allowed his name to continue to be identified on the law firm website as an attorney with the firm; provided comments to the local press as an attorney, without qualifying his status as a suspended lawyer; and continued to display his name on the exterior of his office building.

Carstens was admitted to practice in Oregon in 1972. He had a prior record of discipline.

 

JASON T. FEHLMAN
OSB #040607
Tualatin
Form B resignation

Effective April 16, 2008, the Oregon Supreme Court accepted the Form B resignation of former Tualatin attorney Jason Fehlman. At the time of his resignation, a formal proceeding was pending, alleging that Fehlman engaged in criminal conduct in violation of RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal); RPC 8.4(a)(2) (criminal conduct reflecting adversely on fitness to practice) and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).

Fehlman was admitted in 2004 and was serving a one-year disciplinary suspension from an earlier case involving a criminal conviction. The case pending when Fehlman resigned also involved allegations of criminal conduct. The resignation certified that Fehlman had no active clients, cases or files, and that all former client files have been or will be returned to those clients that request them.

 

MORGAIN FAYE McGAUGHEY
OSB #991731
Medford
Form B resignation

Effective April 16, 2008, the Oregon Supreme Court accepted the Form B resignation of Medford lawyer Morgain Faye McGaughey. At the time of the resignation, a formal disciplinary proceeding was pending against McGaughey for her alleged violations of various disciplinary rules involving multiple clients’ matters, including: RPC 1.1, failure to provide competent representation; RPC 1.3, neglect; RPC 1.4(b), failure to explain matters to the extent reasonably necessary to permit clients to make informed decisions; RPC 1.16(a)(2), failure to withdraw; RPC 1.16(d), improper withdrawal; RPC 3.3(a), making false statement of law or fact to a tribunal; RPC 8.4(a)(3), misrepresentation; and RPC 8.4(a)(4), conduct prejudicial to the administration of justice.

McGaughey was admitted to practice in Oregon in 1999. She did not have a prior record of discipline. The resignation recited that McGaughey’s clients’ files and records have been or will be placed in the custody of Medford lawyer Edward H. Talmadge.

 

AUBREY SIPOWICZ
OSB #031720
Fairview
Form B resignation

Effective April 16, 2008, the Oregon Supreme Court accepted the Form B resignation of Aubrey Sipowicz. At the time of the resignation, the bar was investigating allegations of misconduct implicating RPC 8.4(a)(2) (criminal act reflecting adversely on lawyer’s honesty, trustworthiness or fitness) and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).

The misconduct being investigated by the bar was also the subject of a criminal complaint filed against Sipowicz in Multnomah County Circuit Court alleging theft from a law firm employer, among other charges.

Sipowicz was admitted to practice in Oregon in 2003. She had no prior record of discipline.

 

NYLE B. SMITH
OSB #934300
Pleasant Grove, Utah
Public reprimand

On April 21, 2008, the disciplinary board approved a stipulation for discipline reprimanding Nyle Smith, an Oregon lawyer currently residing in Pleasant Grove, Utah, for violating RPC 5.5(a) and ORS 9.160 (unauthorized practice of law).

Smith was suspended from active bar membership on July 3, 2007, for failure to pay bar dues. On July 30, 2007, Smith appeared in Beaverton Municipal Court, representing a client in a traffic violation matter. The client entered into a plea agreement which was signed by Smith as defense counsel. When Smith made this July 30, 2007 court appearance, he was suspended from the practice of law in Oregon.

Smith was admitted to practice in Oregon in 1993. He had no prior disciplinary record.

 

NAME WITHHELD
Dismissal

Effective April 30, 2008, the disciplinary board dismissed a complaint that had alleged a lawyer violated RPC 3.3(a)(5) (knowingly engaging in illegal conduct); RPC 4.4(a) (knowingly using methods of obtaining evidence that violate a person’s legal rights) and RPC 8.4(a)(2) (commission of a criminal act that reflects adversely on the lawyer’s fitness), when he recorded an in-person conversation with opposing counsel prior to a deposition in a civil proceeding. The bar had alleged that the recording was made without opposing counsel’s knowledge or consent. However, the trial panel found that the bar failed to meet its burden of proof on the recording incident charges.

The panel also dismissed the bar’s charge alleging that the accused lawyer violated RPC 1.7(a)(2) (self-interest conflict). The panel determined that the one-month period, from the date opposing counsel first alleged to the court that the accused lawyer’s actions in the recording incident were illegal, to the point where the accused lawyer withdrew, was a reasonable amount of time under the circumstances for the accused lawyer to determine whether he could or should seek a waiver from his client or withdraw.

 

DAVID E. GROOM
OSB #782310
Portland
One-year suspension, 10 months stayed, with one year probation

Effective May 10, 2008, Portland lawyer David E. Groom was suspended for one year, 10 months of which is stayed subject to a one-year probation for violations of DR 6-101(B) and RPC 1.3, neglect; RPC 1.4(a), (b), failure to communicate; DR 7-101(A)(2), intentional failure to carry out a contract of employment; DR 7-106(A), failure to comply with an order of the court; RPC 8.4(a)(3) misrepresentation and ORS 9.160 and RPC 5.5(a), practicing law while suspended. Groom stipulated that his conduct violated these rules.

Groom accepted court appointments to represent incarcerated persons in the appeals of their criminal convictions and post conviction relief matters. He failed to keep his clients reasonably informed about the status of their cases and did not provide explanations reasonably necessary to permit the clients to make informed decisions.

In one case, Groom also failed to file a petition for review after representing to the client that he would file it. In another case, he failed to comply with the state supreme court’s order directing him to put the client’s supplemental brief in proper form and file it by a date certain, and failed to respond to the court’s directives that he provide an explanation for his failure to comply with its order. Groom eventually filed the client’s supplemental brief, but failed to put it in proper form or include an additional issue the client requested be included.

In another matter, Groom failed to file a brief when due, which resulted in the Oregon Court of Appeals dismissing the appeal. Groom failed to notify his client that the appeal had been dismissed. He also expressed and implied to the client that the appeal was pending and that he was actively working on the matter when the appeal had not been reinstated. The appeal was eventually reinstated, but only after there was considerable delay.

During the representation of the clients that are involved in this proceeding, Groom was suspended for 30 days concerning his conduct in a prior matter. A few days before Groom was reinstated, he performed some legal services for a client and used letterhead representing that he was an attorney at law.

Groom was admitted to practice in Oregon in 1978. He had a prior record of discipline.

 

JAMES C. HILBORN
OSB #772205
Tigard
9-month suspension, all but 60 days stayed, probation

Effective May16, 2008, the Oregon Supreme Court approved a stipulation for discipline suspending Tigard lawyer James Hilborn for 9 months, all except 60 days of which is stayed pending Hilborn’s completion of a two-year term of probation, with specific conditions addressing alcohol use and practice management. Hilborn stipulated to violations of: RPC 1.1 (provide competent representation); RPC 1.3 (neglect); RPC 1.4(a) (duty to keep a client reasonably informed); RPC 1.4(b) (duty to communicate with client); RPC 8.1(a)(2) (failure to respond to a disciplinary authority) and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation) in connection with his representation of two clients.

In one matter, after filing a civil complaint against a client’s former employer, the defendant employer removed the case to federal court. Hilborn was not familiar with the federal courts, but he did not associate counsel or otherwise attempt to become familiar with the federal system, nor did he notify his client that he had only limited experience in federal court.

When the defendant subsequently filed a motion to dismiss the civil complaint, Hilborn did not file a response, but assured his client that the case had been filed appropriately. When Hilborn did not respond to a supplemental memorandum, the court dismissed the case with prejudice. Hilborn did not notify his client of the dismissal and later stopped responding to the client’s attempts to communicate with him. Hilborn also did not respond to a number of bar inquiries related to this matter.

In a second matter, Hilborn filed a lawsuit for claims arising out of the transfer and sale of a client’s home. The defendant did not file a timely answer, but later served a copy of a motion for summary judgment on Hilborn. The motion alerted Hilborn to a potential affirmative defense stemming from the client’s alleged transfer of certain rights to the defendant. Before it received the motion for summary judgment, the court entered an administrative dismissal of the case. Hilborn and defense counsel agreed that the dismissal would be set aside. However, Hilborn took no action on the matter prior to the client filing a bar complaint. In addition, Hilborn did not respond to his client’s phone calls or alert his client that an issue had been raised potentially devastating to his case.

Hilborn was admitted to practice in 1977 and has no prior record of discipline. In mitigation, Hilborn was experiencing documented difficulties with alcoholism at the time of the conduct.

 

MATTHEW D. SAMWICK
OSB #914138
Lake Oswego
Form B resignation

Effective May 26, 2008, the Oregon Supreme Court accepted the Form B resignation of Lake Oswego attorney, Matthew D. Samwick. At the time of his resignation, a formal proceeding was pending alleging that Samwick engaged in conduct in violation of: DR 1-102(A)(2) (criminal conduct that reflects adversely on fitness to practice law); DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation); DR 5-101(A) (lawyer self-conflict); DR 5-104(A) (business relations with a client); DR 5-105(E) (current client conflict of interest); DR 6-101(B) (neglect); DR 9-101(A) (failure to deposit or maintain client funds in trust) and DR 9-101(C)(3) (failure to account for client funds).

In the formal proceeding Samwick was charged with, among other ethics violations: converting millions of dollars he acquired from clients and business partners; making unauthorized draws on lines of credit held by clients and business partners; using his business partners’ personal guarantees to procure loans without their knowledge; submitting false financial statements and loan applications; and selling corporate assets to clients without authority to do so.

Samwick has specified Brett Hall of Lake Oswego as custodian of his client files.

 

 

Applications

Reciprocity applicants listed
The following have applied for admission under the reciprocity, house counsel or law teacher rules. The Board of Bar Examiners requests that members examine this list and bring to the board’s attention in a signed letter any information that might influence the board in considering the moral character of any applicant for admission. Send correspondence to Admissions Director, Oregon State Board of Bar Examiners, 16037 S.W. Upper Boones Ferry Rd., P.O. Box 231935, Tigard, OR 97281-1935.

Reciprocity: Tara Kaylene Gross; Diane Janet Kero; Elizabeth Pike Martin; Emily Sharp Rains; Ann Davison Sattler; John Benjamin Kerr Schochet.

House Counsel: Christopher Paul Moore.

Notice of reinstatement applications
The following attorneys have filed applications for reinstatement as active members of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1.

In 2007, Michael Banks, OSB #932065, was administratively suspended from bar membership for failure to pay dues and PLF, and failure to comply with MCLE requirements. He then received a seven-month disciplinary suspension effective Aug. 14, 2007. In re Banks, 21 DB Rptr 193 (2007). He is presently employed as a commercial and home loan mortgage broker. After reinstatement Banks plans to work as a contract attorney.

The Rules of Procedure require the Board of Governors to conduct an investigation of BR 8.1 reinstatement applications to determine whether applicants possess the good moral character and general fitness to practice law, and that the resumption of the practice of law in this state by these applicants will not be detrimental to the administration of justice or the public interest. Any person with information relevant to these applications is asked to contact promptly the Regulatory Services Division at the Oregon State Bar, P.O. Box 231935, Tigard, OR 97281-1935, (503) 620-0222, or (800) 452-8260, ext. 343.


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