Oregon State Bar Bulletin NOVEMBER 2014
Bar Actions - Discipline
Note: More than 14,900 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.
BRANDON G.W. CALHEIM
By order dated Aug.19, 2014, the disciplinary board approved a stipulation for discipline suspending former Portland attorney Brandon G.W. Calheim for 90 days, all of which is stayed pending two-years probation. Calheim was suspended for violation of RPC 1.16(a)(1) (duty to withdraw when representation will result in violation of rules of professional conduct) and RPC 1.8(j) (sexual relations with a client).
Calheim represented a client in a juvenile dependency matter. During the representation, he had a consensual sexual relationship with the client and continued to represent the client thereafter. Calheim had no prior disciplinary history.
JENNIFER L. PEREZ
Effective Aug. 26, 2014, the disciplinary board suspended former Klamath Falls lawyer Jennifer L. Perez for one year for violation of: RPC 1.1 (failure to provide competent representation); RPC 1.3 (neglect of a legal matter); RPC 1.4(a) (failure to keep a client reasonably informed); RPC 8.1(a)(2) (failure to respond in a disciplinary matter); and RPC 8.4(a)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation).
After filing a civil action for a client, Perez failed to bring the necessary competence to the action, neglected to pursue the action, and did not keep her client informed about the status of the action and of orders entered against the client. Perez encouraged her client to believe the action was ongoing even after it was dismissed and a judgment had been entered against her client for the costs and fees of the opposing party. Perez was aware of and failed to respond to lawful inquiries from disciplinary counsel concerning her client’s complaint.
Perez was previously admonished for failing to appear at a scheduled hearing and not providing notice to other parties or the court, in violation of RPC 8.4(a)(4), and for failing to keep a client reasonably informed, in violation of RPC 1.4(a).
KARL W. KIME
Coeur d’Alene, Idaho
Form B resignation
By order dated Sept. 11, 2014, the Oregon Supreme Court accepted the Form B resignation of Coeur d’Alene, Idaho attorney Karl W. Kime.
At the time he submitted his resignation, Kime faced formal disciplinary charges that he had made false statements in two status reports to the Idaho State Bar in connection with his disciplinary probation in that state and in a letter to the Oregon State Bar in connection with a disciplinary investigation regarding his conduct. The formal complaint alleged that Kime violated Idaho RPC 8.1(a) and Oregon RPC 8.1(a)(1) (knowingly making a false statement of material fact in connection with a disciplinary matter).
At the time of his resignation, Kime certified that he possessed no Oregon client files or records and that he had never practiced law in this state.
NATHAN D. SANDERS
Effective Sept. 15, 2014, the disciplinary board suspended Portland lawyer Nathan D. Sanders for 120 days for violations of RPC 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Sanders failed to timely file documents or comply with court orders in several probate and conservatorship matters. Sanders is also subject to formal and conditional reinstatement. Sanders had no prior record of discipline.
DEBBE J. von BLUMENSTEIN
Effective Sept.16, 2014, former Polk and Marion county attorney Debbe von Blumenstein was suspended by the disciplinary board for two years for violations including: RPC 1.1 (competence); RPC 1.3 (neglect); RPC 1.5 (excessive fee); RPC 1.15-1(a), (c) & (d) (mishandling and failing to return client property); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Von Blumenstein failed to act on behalf of clients after undertaking to represent them, including failing to appear for court appearances and at least one trial date. The trial panel also found that von Blumenstein undertook representation or failed to withdraw when she knew that she was impaired by a physical or mental condition that interfered with her ability to represent her clients (RPC 1.16(a)(2)).
Von Blumenstein initially failed to respond to the bar’s inquiries related to her representation of clients in Polk County, until a subpoena was issued compelling her response. (RPC 8.1(a)(2)). She thereafter failed to respond to the formal complaint, and an order of default was entered against her.
The trial panel determined that von Blumenstein’s conduct was knowing and intentional, and it caused actual injury to her clients, the court system and the legal profession. Because of aggravating factors, including selfish motive, a pattern of misconduct, and prior discipline, von Blumenstein was required to seek formal reinstatement should she wish to return to the practice of law. Von Blumenstein was also ordered to make restitution to two clients whose money she received without performing significant services.
DANIEL J. GATTI
Effective Oct. 20, 2014, the Oregon Supreme Court suspended Salem lawyer Daniel J. Gatti for 90 days for violations of RPC 1.4(b) (communication with client), RPC 1.7(a)(1) (current client conflict of interest) and RPC 1.8(g) (aggregate settlement authority).
Gatti represented several clients pursuing tort claims against the Archdiocese of Portland and the State of Oregon. Prior to engaging in mediation with the Archdiocese, Gatti obtained from each client an acceptable individual settlement offer. At mediation, Gatti entered into a lump sum settlement that exceeded the total of the minimum offers. The court found that when multiple plaintiffs make any agreement to divide an offer that exceeds the total of their minimum offers, a current client conflict of interest arises as the plaintiffs have competing interests in the surplus. Although Gatti proposed to his clients a formula for proportionally dividing the surplus, he did not obtain written informed consent, which should have included a recommendation to seek independent counsel. Because of the lack of written informed consent, Gatti violated RPC 1.7(a)(1). Gatti obtained a second lump sum settlement from the state. Gatti allocated the state settlement in a manner that departed from the formula he had earlier proposed, deciding for himself how much his clients would each receive, in violation of RPC 1.7(a)(1).
The court found that both settlements were aggregate settlements, requiring the specific informed consent required by RPC 1.8(g), and that Gatti failed to obtain such consent. In doing so, the court adopted the definition of “aggregate settlement” proposed by the American Law Institute. The court also found that Gatti’s failure to provide the complaining client with the information necessary to satisfy the informed consent requirements of RPC 1.7 and RPC 1.8 meant that Gatti failed to explain matters to the client to the extent necessary for informed decision-making, in violation of RPC 1.4(b). The court dismissed charges that Gatti had engaged in misrepresentation, finding the bar’s evidence did not establish the complaining client may have made a different decision if more fully and correctly informed about the settlements.
Gatti had a prior disciplinary history, having been admonished in 1989 for making misrepresentations to clients in order to increase his fee, and publicly reprimanded in 2000 for misrepresenting his identity in the course of gathering information for his clients.
GARY B. BERTONI
Effective Nov. 21, 2014, the disciplinary board approved a stipulation for discipline suspending Portland attorney Gary Bertoni for six months for failing to timely account for and pay certain tax and employer withholding obligations, while reporting otherwise to employees, in violation of RPC 8.4(a)(2) (criminal conduct) and RPC 8.4(a)(3) (misrepresentations).
The stipulation also recited violations in connection with a handful of client matters, including: failing to use a proper form of fee agreement (RPC 1.5(c)(3)); failing to notify one or more affected clients of his suspension from the practice of law (RPC 1.4); and failing to take reasonable steps to protect client interests when he was required to withdraw (RPC 1.16(d)).
Bertoni also acknowledged multiple violations of RPC 8.1(a)(2) (knowing failure to respond to a disciplinary authority) for his election not to timely respond, if at all, to requests for information during the course of the bar’s investigations into the foregoing matters.
Bertoni’s conduct was aggravated by factors including a prior disciplinary history, a pattern of misconduct, multiple offenses and substantial experience in the practice of law. However, it was mitigated by the imposition of other penalties and sanctions, including those imposed by taxing authorities.