Oregon State Bar Bulletin FEBRUARY/MARCH 2015
Bar Actions - Discipline
Note: More than 15,200 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.
JEFFREY G. ROBERTSON
Effective Nov. 7, 2014, the disciplinary board suspended Portland lawyer Jeffrey G. Robertson for 120 days for violations of RPC 1.7(a)(2) (current client conflict of interest due to personal interest of the lawyer) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Robertson represented a client in a dispute that was subject to arbitration if initiated timely. Robertson prepared letters to the opposing party for the purpose of either initiating arbitration or tolling the period for doing so. As a result of his own deficient practices, Robertson failed to recognize that the letters were not mailed. After Robertson learned that the opposing party contended Robertson had failed to timely initiate arbitration, and a large sum was due and owing, Robertson continued to advise the client regarding the dispute without informed consent from the client regarding the significant risk that his personal interests would materially limit the representation. For a period of several weeks, Robertson did not inform the client of the opposing party’s contention that arbitration had not been timely initiated and a sum was due and owing. Robertson did not notify his client that he may not have mailed the letters until after the client, the court and the opposing party had expended substantial resources on the client’s efforts to compel arbitration of the dispute. Robertson had no prior record of discipline.
MATTHEW R. AYLWORTH
On Nov. 20, 2014, the Oregon Supreme Court issued two public reprimands to Eugene lawyer Matthew R. Aylworth in a reciprocal discipline case from Washington. In one client matter, Aylworth was reprimanded for violations of RPC 1.3 (neglect), RPC 3.3(a)(3) (failure to disclose to a tribunal that the lawyer has offered false evidence), RPC 5.3(b) (failure to ensure that staff conduct is compatible with the lawyer’s professional obligations) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice). Aylworth was reprimanded a second time for additional violations of RPC 5.3(b) and RPC 8.4(a)(4) in a second matter.
In the first case, Aylworth garnished the exempt funds of a judgment debtor who was not in default of his debt to Aylworth’s client and obtained a writ of garnishment without informing the court that the debtor had filed an objection to the garnishment on these grounds. In the second case, Aylworth prematurely submitted two attorney fee petitions that included charges for a hearing that had not yet occurred.
In determining the appropriate sanction, the court considered in aggravation Aylworth’s prior disciplinary offenses, a pattern of misconduct, multiple offenses and the vulnerability of the victim. In mitigation, the court noted Aylworth’s inexperience in the practice of law and the imposition of other penalties or sanctions.
Effective Dec. 6, 2014, the Oregon Supreme Court suspended Hood River lawyer Eric Einhorn for one year for violations including RPC 1.1 (lack of competence), RPC 1.3 (neglect), RPC 1.4(a) (failures to communicate with clients), RPC 1.7(a)(2) (multiple-client and personal-interest conflicts) and RPC 8.1(a)(2) (failures to respond to disciplinary authorities).
Einhorn’s misconduct occurred in three unrelated civil matters. In each of them, Einhorn failed to file or timely file necessary pleadings and documents to allow his clients to pursue their legal claims or remedies. In each case, his inaction resulted in the entry of a judgment or the assessment of fees against his clients. Einhorn also failed to advise his clients of the status of their matters or respond to their inquiries and, in two of the matters, failed to respond to disciplinary inquiries. One matter also involved conflicts of interest that had a significant risk of materially impairing the representation of Einhorn’s clients.
In reaching the appropriate sanction, the stipulation noted that Einhorn was previously admonished for neglecting a client and for improperly engaging in a conflict of interest.
STEVEN M. MCCARTHY
Form B resignation
On Dec. 11, 2014, the Oregon Supreme Court accepted the Form B resignation of Steven M. McCarthy, formerly of Independence, Ore., while disciplinary matters were pending against him.
McCarthy’s resignation followed formal charges based on complaints received from several clients, attorneys and a federal judge. McCarthy was charged with the following: incompetent representation (RPC 1.1), neglect (RPC 1.3), failing to adequately communicate with his clients (RPC 1.4), engaging in an improper business transaction with a client (RPC 1.8), failing to take reasonably practicable steps to protect his clients upon termination of his employment (RPC 1.16), misrepresentations to the court and otherwise (RPC 3.3(a) & RPC 8.4(a)(3)), failing to respond to disciplinary authorities (RPC 8.1(a)(2)), conduct prejudicial to the administration of justice (RPC 8.4(a)(4)), and the unauthorized practice of law (ORS 9.160).
McCarthy had been suspended for 90 days in March 2014, in connection with a prior disciplinary matter, and had not sought reinstatement prior to his resignation. McCarthy’s resignation states his client files have been turned over to the Professional Liability Fund.
FOSTER A. GLASS
Effective Dec. 14, 2014, the disciplinary board approved a stipulation for discipline suspending Bend lawyer Foster A. Glass from the practice of law for 30 days for violating RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Glass stipulated that on several occasions between September 2013 and January 2014, he failed to appear for scheduled court hearings in six separate matters. His repeated missed appearances impacted the court’s ability to manage its dockets and the legal interests of his clients.
Glass was admitted to practice in Oregon in 1975 and had a prior record of discipline.
DANIEL H. KOENIG
Effective Dec. 22, 2014, the disciplinary board approved a stipulation for discipline publicly reprimanding Creswell lawyer Daniel Koenig for violations of the following: RPC 1.3 (neglect), RPC 1.4(a) (failure to keep client reasonably informed about the status of a case or respond to reasonable requests for information), RPC 1.4(b) (failure to explain a matter to the extent necessary to permit the client to make informed decisions), and RPC 1.16(a)(1) (failure to withdraw when continued representation would violate the RPCs or other laws).
In December 2006, Koenig agreed to appeal his court-appointed client’s felony murder conviction. In September 2009, the Oregon Court of Appeals denied the client’s appeal and affirmed the trial court’s decision. Koenig’s client requested that Koenig withdraw from the case, have the Oregon Public Defense Services Appellate Division (OPDS-AD) substitute as counsel, and advise him of the deadline to file his petition for review by the Oregon Supreme Court. Koenig agreed.
Although Koenig attempted to secure OPDS-AD as substitute counsel, Koenig failed to timely file a petition for review on his client’s behalf, failed to withdraw from the case, failed to respond to his client’s numerous inquiries about the deadline to file his petition and failed to inform his client that OPDS-AD would not substitute as counsel.
Koenig’s sanction was mitigated by his lack of prior discipline in addition to his cooperation with the investigation of his conduct.
DEBBE J. von BLUMENSTEIN
Form B resignation
Effective Dec. 24, 2014, the Oregon Supreme Court accepted the Form B resignation of former Polk and Marion County attorney, Debbe von Blumenstein. At the time of her resignation, von Blumenstein was facing charges in connection with four separate matters, including allegations that she violated the following: RPC 1.3 (neglect), RPC 1.4(a) (failure to keep a client reasonably informed and respond to requests for information), RPC 1.15-1(a), (c) & (d) (mishandling and failing to return client property), RPC 1.16(a)(2) (failure to withdraw when impaired by a physical or mental condition), RPC 8.4(a)(3) (conduct involving dishonesty and misrepresentation, including conversion of client funds), and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
The resignation recited that all client files had been or would be delivered to the Professional Liability Fund.
By order dated Dec. 30, 2014, the disciplinary board publicly reprimanded Robert Rosenthal for violating RPC 8.4(a)(2) (committing a criminal act that reflects adversely upon fitness as a lawyer).
Over a period of several years, Rosenthal paid an adult prostitute to engage in sexual conduct or sexual contact. In April 2014, Rosenthal pleaded guilty to five counts of patronizing a prostitute in violation of ORS 167.008, a Class A misdemeanor.
Rosenthal and the bar stipulated to several aggravating circumstances, including substantial experience in the practice of law and a pattern of misconduct. In mitigation, the stipulation noted an absence of prior discipline, full and free disclosure (Rosenthal cooperated with law enforcement and reported his conviction to the bar) and the imposition of other penalties (18 months probation in the criminal proceeding).
SCOTT P. BOWMAN
Six-month suspension, five months stayed, two-year probation
Effective Feb. 21, 2015, the disciplinary board approved a stipulation for discipline suspending Gladstone attorney Scott Bowman six months, all but 30 days stayed pending his successful completion of a two-year probation. Bowman admitted that his repeated criminal offenses of driving under the influence of intoxicants and driving while suspended violated RPC 8.4(a)(2) (criminal conduct that reflects adversely on fitness to practice). Bowman was previously disciplined in 2010 for violation of RPC 8.4(a)(2) for his willful failure to file personal taxes and for other misconduct.
MELISSA N. KENNEY
Effective Jan. 16, 2015, the disciplinary board suspended Maryland lawyer Melissa N. Kenney for 30 days for violation of RPC 5.5(a) & (b)(2) (unauthorized practice of law) and RPC 7.1 (misleading advertising).
Kenney is not a member of the Oregon State Bar. From a Tigard law office, Kenney acted as attorney representative for clients in federal administrative matters during a period when she was not authorized to do so because she had transferred to inactive status in Maryland, the only U.S. jurisdiction in which she is admitted to the practice of law. Kenney held herself out in advertisements as qualified to serve as an attorney in federal administrative matters when she was not qualified to do so and without clarifying that she was admitted to the practice of law in Maryland only. Kenney also failed to update her advertisements concerning other professional qualifications and memberships as they changed.