Oregon State Bar Bulletin — DECEMBER 2010

Bar Actions

Discipline

Note: More than 14,000 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.

SEAN L. HARTFIELD
OSB # 020591
Portland
Public reprimand

Effective Sept. 23, 2010, the Oregon Supreme Court reprimanded Portland lawyer Sean L. Hartfield for violating RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

Hartfield represented a wife who successfully petitioned for a conservatorship over her husband. Hartfield failed to file an inventory in a timely fashion and the trial court issued a show cause order requiring Hartfield’s appearance. Hartfield failed to appear. After the trial court contacted Hartfield, he appeared and explained that the husband had passed away. The trial court ordered Hartfield to file an inventory and final accounting and continued the show cause hearing. After requesting additional time, Hartfield failed to submit a letter to the trial court acknowledging the set over and failed to appear on the date he had requested. As a result, the trial court issued an order requiring Hartfield to appear and show cause why he should not be held in contempt. After Hartfield again failed to appear, the trial court removed Hartfield and his client from the matter and appointed another attorney as successor conservator.

The Oregon Supreme Court found that Hartfield’s inaction harmed the substantive interests of his client and her husband, the protected person. The court further found that, by failing repeatedly to appear in court for scheduled hearings, and by failing to file an inventory or accounting, Hartfield unreasonably prolonged the conservatorship proceeding.

JAMES F. O’ROURKE
OSB #783286
Portland
Public reprimand

Effective Oct. 6, 2010, the disciplinary board approved a stipulation for discipline reprimanding Portland lawyer, James O’Rourke for violating RPC 1.1 (failure to provide competent representation).

O’Rourke’s violation occurred in the course of his attempted representation of an unmarried adult woman, who was involved in a serious automobile accident that left her in a coma. The injured woman’s mother hired O’Rourke to pursue a personal injury claim on her daughter’s behalf. Without thinking the matter through, O’Rourke had the mother execute a fee agreement and several medical releases as her daughter’s guardian ad litem. At the time, the mother had not been appointed as her daughter’s guardian ad litem and O’Rourke did not grasp that formal appointment was necessary. Although O’Rourke had consulted with another attorney more familiar with probate matters, O’Rourke did not know that it was inappropriate to proceed with the mother utilizing the ad litem designation until she was duly appointed by the court.

Thereafter, O’Rourke sent numerous letters to third parties and requests for records to medical providers, at times including the medical releases, all of which incorrectly represented that he was the injured daughter’s attorney when, in fact, the mother had not been appointed by the court as her daughter’s guardian ad litem.

Ultimately, the court appointed an independent conservator for the injured daughter. Having revived from her coma, the daughter objected to the appointment of a permanent guardian and the court appointed a lawyer to represent the daughter in the guardianship proceedings.

Concerned about the expiration of the statute of limitations and unaware of how best to protect the daughter’s interests, O’Rourke filed a personal injury lawsuit on her behalf, without notice to or approval from the daughter, the daughter’s conservator or the daughter’s attorney, and negligently represented to the court therein that he was the daughter’s attorney.

The stipulation noted that O’Rourke did secure a settlement offer from the insurance company that exceeded the policy limits and that his conduct was mitigated by his lack of prior discipline; the lack of a dishonest or selfish motive; his cooperation with the bar; and his good character and reputation in the legal community.

ANN MERCER
OSB #926280
Portland
Public reprimand

On Oct. 8, 2010, the disciplinary board approved a stipulation publicly reprimanding Portland attorney Ann Mercer for violating RPC 5.5(a) of both the Oregon and Washington Rules of Professional Conduct (unauthorized practice of law), and Oregon RPC 3.5(b) (ex parte contact with the court).

Mercer, who is not licensed to practice law in Washington, was retained to represent clients regarding qualified domestic relations orders (QDROs) in two dissolution actions filed in that state. Opposing counsel (who was licensed to practice in both Oregon and Washington) questioned whether Mercer was authorized to represent clients in those matters. In one of the matters, the Washington court determined that Mercer had no lawful authority to provide legal services in that state. Thereafter, the Washington State Bar Association Practice of Law Board found that Mercer had engaged in the unauthorized practice of law in Washington. She thereby violated RPC 5.5(a) of both the Washington and the Oregon Rules of Professional Conduct.

Mercer was retained in a third dissolution matter — one filed in Oregon. Mercer sent opposing counsel two forms of judgment, one stipulated and the other not stipulated, and asked him to sign and return the stipulated judgment. She stated that if she did not hear back from him, she would file the non-stipulated judgment. Opposing counsel responded by questioning aspects of the proposed stipulated judgment and by asserting that Mercer could not — as she proposed — simply file the non-stipulated judgment without obtaining court permission after a duly noticed motion. Mercer thereafter, without notifying opposing counsel, appeared ex parte to ask the court to sign the non-stipulated judgment. She thereby violated Oregon RPC 3.5(b).

The stipulation recited that Mercer had no previous record of discipline, did not act with a dishonest or selfish motive and cooperated with the bar proceedings.

MITCHELL R. BARKER
OSB #001490
Boise, Idaho
60-day suspension

Effective Nov. 3, 2010, the disciplinary board approved a stipulation for discipline suspending Mitchell Barker for 60 days for violations of RPC 5.5(a) (practicing law in a jurisdiction in violation of the regulation of the legal profession), RPC 8.1(a)(1) (making a false statement of material fact in connection with a disciplinary matter), and ORS 9.160 (practicing law or holding oneself out as able to practice law in Oregon while not an active member of the bar).

Barker’s violations arose from his representation of a client in a circuit court matter at a time when he was suspended from practice in Oregon for failing to comply with his MCLE requirements.

In response to a subsequent inquiry from the bar as to these activities, Barker incompletely and inaccurately asserted that the woman for whom he had negotiated with the district attorney and for whom he filed a notice of representation and other pleadings was not really his client, and that he was only tangentially involved.

The stipulation recited that Barker’s conduct was aggravated by multiple offenses, the submission of false statements during the disciplinary process, and substantial experience in the practice of law. In mitigation, Barker had no prior disciplinary record; did not act with a selfish motive; and during the time that preceded his failure to comply with his MCLE requirements, he suffered some medical problems that distracted his attention and may have contributed to his failure to comply.

JAMES C. HILBORN
OSB #772205
Hillsboro
30-day suspension

Effective Dec. 15, 2010, the disciplinary board approved a stipulation for discipline suspending Hillsboro lawyer, James Hilborn, for 30 days for violations of: RPC 1.4(a) (failure to keep a client reasonably informed about the status of a matter); RPC 1.4(b) (failure to explain a matter to the extent necessary to permit a client to make informed decisions regarding the representation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).

Prior to 2003, Hilborn represented an association of homeowners formed to sue their neighborhood developer for allegedly misrepresenting the frequency and times of train travel on a track adjacent to the members’ homes. After the lawsuit settled in January 2003, a few members of the original homeowners’ association complained to Hilborn that the developer was not complying with terms of the settlement requiring best efforts to move the small switching yard located behind the homes affected by the suit.

Hilborn had a phone conversation with one particular former member (“client”) who indicated that he was still bothered by the railroad and wanted to “go forward.” Hilborn told the client that someone would be in contact with him if any legal action was initiated. However, roughly one year later, Hilborn brought an action against the developer to enforce the prior settlement. The client and his wife were listed among the plaintiffs without their prior knowledge or consent.

Over the next year, Hilborn had no communication with the client or his wife, did not notify them that they were plaintiffs, and did not keep them apprised of events in the enforcement lawsuit, including the occurrence of an arbitration hearing at which the arbitrator ruled in favor of the developer.

After the adverse arbitration ruling, Hilborn did not respond to multiple requests from opposing counsel and the arbitrator to confirm the identity of all of his clients and provide their contact information, necessitating the scheduling of hearings to resolve those issues before a judgment could be entered.

When the court confirmed the arbitration award and awarded the developer its costs and attorney fees, a judgment was entered against the plaintiffs, including the client and his wife. Hilborn did not notify the client of these events.

The stipulation acknowledged that the client and his wife suffered substantial actual injury as a result of Hilborn’s conduct, including being forced to pay more than $5,000 toward the judgment. However, Hilborn did not act selfishly or dishonestly, cooperated with the bar in its investigation, and expressed remorse.



Applications

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, P.O. Box 231935, Tigard, OR 97281.

Reciprocity: David Charles Bouc Theodore Nelson Gilliam, Anna Shawn Hughes-Malmberg, Sarah Beth Shuler Keane, Diane Marie Meyers, Eric Jay Neal, John Jeffrey Oxley, Robert Charles Russell, Daniel Ray Wilkinson and Jeffrey D Wilson.

House Counsel: Michael Charles Perry.

Notice of Reinstatement Application
The following attorneys have filed an application for reinstatement as an active member of the Oregon State Bar pursuant to Rule of Procedure (BR) 8.1:

Derek Anderson of Colorado, #961329. Derek Anderson seeks reinstatement after voluntarily resigning in 2002. He is also a member of the Massachusetts, Colorado, Florida and California bars. Since 2007, Anderson has been a partner in the Boston-based firm of Michaels, Ward & Rabinovitz. He will continue in that position following reinstatement, with no immediate plan to return to Oregon.

William J. Schermer of Florida, #793795. In 1983, William Schermer submitted a Form B resignation at a time when numerous ethics complaints were pending against him. Those complaints arose from his representation of clients in the Klamath Falls area. For the past 10 years, Schermer has worked in the insurance industry. He does not have any plans to return to the practice of law in Oregon after reinstatement.

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 whether the resumption of the practice of law in this state by the 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 OSB Regulatory Services Division, P.O. Box 231935, Tigard, OR 97281; phone: (503) 620-0222, or toll-free in Oregon, (800) 452-8260), ext. 343.



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