Oregon State Bar Bulletin NOVEMBER 2013
Note: More than 14,800 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 July 30, 2013, a trial panel dismissed a complaint alleging that a lawyer violated RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
The lawyer represented a client charged with driving under the influence of intoxicants (DUII) and driving while her license was revoked (DWS). A lawyer for the state made a pre-trial offer in which the client would plead guilty to DUII and accept a 180-day jail sentence, among other things, in exchange for dismissal of the DWS charge. The client pled guilty to the DUII charge based upon a plea petition prepared by the lawyer which noted that the DWS charge was to be dismissed. A hearing was held and the plea petition was signed by the court with copies distributed to the parties.
A month later, the parties appeared for sentencing. Before the court took the bench, the lawyer realized that the pre-trial offer included an agreement that his client serve 180 days of jail time. This was unacceptable to the client and the lawyer informed the lawyer for the state that his client would now plead guilty to both charges.
To affect his client’s change of plea, the lawyer gathered together the original and copies of the prior plea petition, which had previously been signed by the court and entered into the court’s record and made alterations to it. Among other things, the lawyer added the DWS charge so that, on its face, it appeared that his client had previously pled guilty to that charge and the court had ordered entry of a guilty plea to both charges. The lawyer returned the altered petition to court staff who alerted the judge that changes had been made to it. The court informed the lawyer that it was improper for him to have added something to a plea petition after the court had signed it.
The trial panel dismissed the charge because the lawyer merely made a mistake and the bar did not prove by clear and convincing evidence that the lawyer’s conduct had an actual or potential effect on the administration of justice.
JEFFREY E. BOLY
Effective Aug. 14, 2013, the disciplinary board suspended inactive Portland lawyer Jeffrey Boly for one year for violation of DR 3-101(B) (unlawful practice of law).
Boly knowingly engaged in the unlawful practice of law by providing substantial legal advice and assistance to a plaintiff who relied heavily upon that advice and assistance in two different legal matters. In one of the matters, an attorney for the opposing party corresponded with Boly as if Boly was an active bar member and Boly failed to correct that misimpression.
Moses Lake, Wash.
Effective Nov. 12, 2013, the Oregon Supreme Court disbarred Oregon lawyer Theodore Mahr in a reciprocal disciplinary proceeding under BR 3.5.
Mahr was also a member of the Washington State Bar Association. On December 20, 2010, the Washington Supreme Court issued an order disbarring Mahr. The order consolidated a number of matters in which Mahr engaged in a variety of misconduct during his representation of numerous clients, primarily in immigration matters.
In virtually all of the matters, Mahr engaged in neglect, failed to adequately communicate and failed to provide requested documentation to his client or their families. In a number of matters, Mahr charged or attempted to charge a clearly excessive fee, made misrepresentations to clients and others, failed to return unearned fees and/or client files and failed to respond to the bar.
VICKI R. VERNON
On July 23, 2013, a trial panel suspended Vicki Vernon from the practice of law for a period of 90 days, effective on Oct. 1, 2013.
The panel found that Vernon neglected two separate post-conviction relief matters and failed to communicate adequately with her clients. In the first matter, after deciding that her client’s case was unmeritorious, Vernon failed to timely file an amended petition. The case was dismissed, but Vernon did not disclose the dismissal when she met with her client the following month. She thereafter failed to respond to the client’s inquiries.
In the second matter, the court ordered Vernon to file an amended petition but she failed to do so. After the client discovered the dismissal through OJIN, Vernon promised to move for reinstatement. Vernon made the motion but failed to notify the client when it was denied.
The panel found that Vernon acted knowingly, that the clients were vulnerable by reason of their incarceration and that both were injured by her neglect and failure to communicate.
REBECCA Z. MAY
Effective Sept. 30, 2013, the disciplinary board approved a stipulation for discipline publicly reprimanding Eugene attorney Rebecca May for violations of RPC 1.1 (competence); RPC 1.3 (neglect); RCP 1.4(a) & (b) (failure to communicate); and RPC 1.5(a) (excessive fee).
The violations occurred in connection with May’s representation of a client in pursuing a divorce from her estranged husband.
May failed to verify the client’s residency, causing her to file the divorce petition in the wrong county. Thereafter, she failed to take measures that would qualify as personal service, substitute or office service under the requirements of ORCP 7. However, May’s firm billed the client for these service efforts.
During the representation, the client experienced difficulties reaching May regarding her case. In September 2009, May took over the juvenile case load of a retiring lawyer and transferred her office from Salem to Eugene. May did not communicate directly to the client that the office location had changed. Due to May’s increased juvenile caseload, her law partner took over primary responsibility for the client’s case near the end of 2009.
The stipulation recited considerable mitigation, including absence of a prior disciplinary record, absence of a dishonest motive and inexperience in the practice of law.
W. SCOTT PHINNEY
On Oct. 3, 2013, the Oregon Supreme Court disbarred Tualatin attorney, W. Scott Phinney, effective December 2, 2013, for violating RPC 8.4(a)(2) (criminal conduct reflecting adversely on honesty and trustworthiness) and RPC 8.4(a)(3) (conduct involving dishonesty, deceit, fraud or misrepresentation).
As the elected treasurer of the Yale Alumni Association of Oregon, a non-profit organization, Phinney was entrusted to handle the association’s bank accounts and to report on its finances to the president and the membership. In 2008, after experiencing personal and financial problems, Phinney began converting funds from the association’s accounts by writing checks to himself or cash. Over a one and a half year period, Phinney wrote 21 checks for his own use in the total amount of $32,600. During this same period, he misrepresented the bank account activity and balances to the president and membership.
Phinney’s misappropriation constituted theft (ORS 164.015(1)). The association was not his client; however, he was acting in a fiduciary capacity and the court found that his conduct thus “calls into serious question his trustworthiness in handling the money of future clients or others who might trust him as an attorney.”
Although there were several mitigating factors (no prior disciplinary record, full and free disclosure in the disciplinary process, partial restitution prior to discovery of misconduct, personal and emotional problems), they were insufficient to overcome the presumptive sanction of disbarment.