Oregon State Bar Bulletin NOVEMBER 2012
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.
JAMES D. BERRIEN
Form B resignation
Effective Aug. 16, 2012, the Oregon Supreme Court accepted the Form B resignation of Hillsboro lawyer James D. Berrien. At the time of resignation, there was a pending formal complaint alleging, among other things, that over the course of seven years, while acting under power of attorney, Berrien improperly managed the estate of two elderly disabled clients; mismanaged their personal finances; failed to timely file or pay their personal and withholding taxes; failed to inform them of the accrued tax fines and penalties; failed to give them billing statements; failed to inform them that their assets had severely dwindled under his management; failed to inform them that he charged and collected attorney fees for nonlegal work; charged and collected attorney fees for social visits to their home; and double-billed for work already performed.
The alleged conduct implicated the following: RPC 1.3 and DR 6-101(B) (neglect of a legal matter); 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 reasonably necessary to permit client to make informed decisions); RPC 1.5(a) and DR 2-106(A) (charging and collecting a clearly excessive fee); RPC 1.7(a)(2) (conflict of interest); RPC 1.15-1(a) (failure to deposit and maintain client funds in an interest bearing trust account); and DR 1-102(A)(3) and RPC 8.4(a)(3) (engaging in conduct involving dishonesty and misrepresentation).
Berrien was admitted to practice in September 1975. His resignation cited that client files and records have been or will be placed in the custody of Oregon lawyer Kit A. Jensen.
JEFFREY A. CANCILLA
Huntington Beach, Calif.
Effective Aug. 16, 2012, Jeffrey A. Cancilla was suspended for 90 days. This reciprocal discipline matter arises from discipline action in California.
Cancilla partnered with three loan modification companies that were owned and operated by nonlawyers. The companies advertised for clients and referred them to Cancilla for legal work, but in fact performed much of the loan modification work. Cancilla collected legal fees and paid a portion to the companies. In one matter, Cancilla took an advance fee in violation of a California law that prohibits persons negotiating mortgage loan modifications from collecting payment before all services are performed. In three matters, the companies told Cancilla’s clients that Cancilla no longer represented them and that other lawyers would handle their modifications.
Cancilla’s conduct violated: Oregon RPC 1.5(a) (collecting a fee in violation of law); RPC 1.16(d) (failing to give a client reasonable notice upon termination of representation); RPC 5.4(a) (sharing legal fees with a non-lawyer); and RPC 5.4(b) (forming a partnership involving the practice of law with a non-lawyer).
KEITH G. JORDAN
Effective Aug. 23, 2012, the Oregon Supreme Court suspended Keith Jordan for 18 months for violations of: RPC 1.3 (neglect); RPC 1.4(a) and (b) (duty to communicate with client); RPC 1.5(a) (illegal or clearly excessive fee); RPC 1.16(c) and (d) (duty to protect client upon termination of representation); RPC 5.5(a) (unlawful practice of law); RPC 8.1(a)(2) (failure to respond to the bar); RPC 8.4(a)(3) (conduct involving dishonesty, deceit, fraud or misrepresentation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
In a stipulation for discipline accepted by the court, Jordan admitted misconduct in two matters. In the first, Jordan undertook to represent a client in a removal proceeding without disclosing his imminent suspension from the practice of law in California, which would affect his ability to represent clients in immigration matters. Jordan failed to appear or take action on behalf of his client in a timely manner, and he solicited payment from the client to appear at the client’s merits hearing even after he had been informed that he would be suspended from immigration practice at the time of the hearing. In the second matter, Jordan undertook to represent a client on direct appeal of an Oregon criminal judgment without informing the client of his imminent suspension from the practice of law in Oregon. Jordan filed an opening brief on behalf of the client prior to his suspension, but he failed to complete the representation or timely withdraw. Although Jordan had charged and been paid a fixed fee for the representation, he attempted to collect additional fees for the representation. Jordan knowingly failed to respond to bar inquiries concerning the criminal matter.
At the time the suspension was imposed, Jordan was serving a two-year suspension in Oregon imposed on a reciprocal basis for a suspension imposed by the California Supreme Court for misconduct committed in several immigration matters. Jordan had previously served a nine-month suspension in Oregon on a reciprocal basis for a suspension imposed by the California Supreme Court, also for misconduct in immigration matters.
ARTHUR P. STANGELL
On August 22, 2012, the disciplinary board approved a stipulation for discipline reprimanding West Linn attorney Arthur Stangell for violating RPC 4.2 (direct communication with a represented person).
Stangell, who represented the plaintiff in a real estate boundary dispute, went to the defendant’s property intending to take photographs. Unexpectedly encountering the defendant — whom he knew to be represented by counsel — Stangell asked for permission to enter his property. He then engaged the defendant in a conversation and asked him to show Stangell one of the boundary lines. Stangell notified opposing counsel of the direct communication several days later.
Although Stangell told the defendant that he was under no obligation to speak with Stangell, Stangell did not have opposing counsel’s permission to directly communicate with the defendant. He therefore violated RPC 4.2.
Stangell was previously admonished under DR 7-104(A)(1) for directly communicating with a represented person.
GINGER LEE KOCUREK
Effective Sept. 1, 2012, a trial panel suspended Klamath Falls lawyer Ginger Lee Kocurek from the practice of law for six months for violating: RPC 3.3(a)(1) (knowingly making a false statement of fact to a tribunal or failing to correct a false statement of material fact previously made to the tribunal); RPC 8.1(a)(1) (making false statements during a bar investigation); and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).
The trial panel determined that, after discovering her husband had apparently backed her truck into a tree, Kocurek falsely reported to her insurer that the truck had been damaged at a time when she was driving. In the course of subsequent proceedings in her own divorce, Kocurek knowingly made false representations in an affidavit she filed in support of a motion to conceal property from her husband. The representations asserted that the husband’s girlfriend had a criminal record, when she did not. Kocurek was also found to have made misleading statements to the bar in the course of the investigation of the insurance and dissolution matters.
KEVIN M. McCALLIE
Pursuant to a stipulation for discipline effective Aug. 27, 2012, the disciplinary board suspended Hillsboro lawyer Kevin M. McCallie for 120-days for violations of ORS 9.160 (unlawful practice of law), RPC 5.5(a) (unauthorized practice of law) and RPC 8.4(a)(3) (dishonesty, fraud, deceit or misrepresentation).
While under an administrative suspension, and knowing he had not been reinstated, McCallie undertook to advise and assist a client in the foreclosure of a trust deed and falsely held himself out as an active bar member over a period of several months.
MARK G. OBERT
On Sept. 17, 2012, the Oregon Supreme Court suspended Salem attorney Mark Obert for six months for violating the following: RPC 1.5(a) (clearly excessive fee); RPC 1.15-1(a), (c), (d) (failure to maintain client funds in trust until earned and promptly deliver unearned portion to client upon request); RPC 8.1(a)(2) (knowing failure to respond to Bar’s inquiries); RPC 1.1 (lack of competence); and RPC 3.1 (knowing assertion of frivolous position) in two separate matters.
In the first matter, Obert accepted a $1,200 flat fee to represent a client in extradition proceedings. Obert met with the client but the extradition proceedings were suddenly dropped and the client released before Obert commenced any work on the matter. Obert charged the entire $1,200, thereby collecting an excessive fee. He also failed to place the fee into trust, which he was required to do given the lack of a written agreement designating the fee as nonrefundable and earned upon receipt. When the bar inquired about this matter, Obert failed to respond.
In the second matter, Obert, representing a defendant in civil litigation, was told by the trial judge that the court would grant a motion for JNOV (judgment notwithstanding the verdict) on certain claims, if Obert filed them timely. After the court entered judgment, however, Obert failed to file the motion JNOV and instead filed a notice of appeal, effectively depriving the trial court of jurisdiction. Obert then filed the motion JNOV untimely, even as the Court of Appeals notified him that his appellate notice was procedurally inadequate. Obert told the trial court that he would dismiss the appeal so that the trial court could resolve the motion JNOV; nevertheless, he thereafter filed an amended notice of appeal which again deprived the trial court of jurisdiction. When the Court of Appeals dismissed the appeal, it warned Obert of applicable timelines for addressing post-trial motions. Obert ignored those timelines and the post-trial motions were deemed denied by operation of law. Two months after the deadline for appealing the denial, Obert attempted to file a late notice of appeal. Finding his representation incompetent, the Oregon Supreme Court noted that his conduct displayed a pattern of ignorance as to the most basic of applicable rules and a failure to heed instructions of both the trial court and the Court of Appeals.
In determining the appropriate sanction, the court took into account Obert’s prior disciplinary history. In re Obert, 336 Or 640, 89 P3d 1173 (2004).
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: Elaine Liu-Ambrose Beal; Paul Allen Brachvogel; Elizabeth Elaine Christy; Stephen Thomas Elder; Richard Franklin Erisman; Alice Elizabeth Garrett; Kyung Joon Hahm; Donald Joseph Koehler, II; Shawn Jacob Larsen-Bright; Kevin C. Leik; Leslie Ann Martinez; Stephen Michael Raab; Andrew Paul Sherwood; Corinna Spencer-Scheurich; Nancy Bridget Thorington; Lisa Calyn Valenta; and Natalie Margaret Wetenhall.
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:
Martha E. Beaves of Portland, #980334. Martha Beaves has been an inactive bar member since 2001. She recently transferred to active pro bono status to serve as a pro bono attorney at the Oregon Crime Victims Law Center. In addition to her Oregon membership, Beaves also is an inactive member of the California and Minnesota bars. She intends to apply for an attorney position following her reinstatement.
Paul S. Majkut of Portland, #872900. Paul Majkut transferred to inactive status in 2002 because his employment as a government attorney representing the Bonneville Power Administration did not require active status in the Oregon State Bar. He has been an active member of the Washington State Bar since 1976. Majkut will be retiring from the BPA soon, and plans to return to the private practice of law following his reinstatement.
Joel D. Shapiro of Portland, #003814. Joel Shapiro transferred to inactive status in 2007, because he had moved to Washington, D.C., to serve as an adviser to Sen. Ron Wyden. He returned to Oregon in 2011, and worked briefly as an adviser to a Multnomah County commissioner. He plans to pursue a position in private practice in Portland following his 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.