Oregon State Bar Bulletin OCTOBER 2015
Bar Actions - Discipline
Note: More than 15,000 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.
MARK G. OBERT
9-month suspension, all but 90 days stayed, 3-year probation
Effective July 1, 2015, the Oregon Supreme Court approved a stipulation for discipline suspending Salem attorney Mark Obert for nine months, with all but 90 days stated pending successful completion of a 3-year probationary term, for violations of: RPC 1.7(a)(2) (conflict of interest); RPC 1.16(c) (failure to comply with court rules upon withdrawal); and RPC 1.16(d) (failure to take reasonable steps upon withdrawal to protect client interests), in connection with three client matters. The terms of probation mandate monthly audits of Obert’s client files and additional CLEs.
By advancing his own funds for a filing fee or obtaining a transcript of a sentencing proceeding, Obert made an appearance in two criminal appellate matters as attorney of record for the clients. When the clients did not pay his fees or reimburse his expenses as promised, Obert terminated his representation but failed to file and serve motions to withdraw in accord with the requirements of ORAP 8.10(1). Additionally, Obert failed to inform the clients of the status of their appeals or the need to file opening briefs, failed to seek extensions to file opening briefs and failed to forward the clients correspondence from the court. As a result, one of the appeals was subsequently dismissed for failure to prosecute.
In a third matter, Obert pursued a motion for a new trial and represented a client in sentencing proceedings following conviction by a jury. The motion for a new trial was denied and the client was sentenced to prison. Although the client had viable issues that could reasonably have been raised on appeal, Obert advised that post-conviction relief would achieve a quicker resolution. The client followed Obert’s advice, immediately pursuing post-conviction relief rather than pursuing the appeal.
In representing the client regarding post-conviction relief, there existed a significant risk that Obert’s representation would be materially limited by his personal interest in not exposing himself to a malpractice or other claim by asserting his own ineffectiveness as trial or appellate counsel as a basis for relief. Although the client’s informed consent, confirmed in writing, may have addressed the risk of impaired representation, Obert did not seek or obtain such consent. When the post-conviction court denied the client’s petition, it noted that the client had raised a viable issue that should have been raised on direct appeal.
TAMI S.P. BEACH
Pursuant to a stipulation for discipline effective July 15, 2015, the disciplinary board suspended Eugene lawyer Tami S.P. Beach for six months for violations of the following: RPC 1.3(neglect); RPC 1.4(a)(duty to communicate with client); RPC 1.15-1(d)(failing to deliver client property upon request); and RPC 8.4(a)(3)(dishonesty, fraud, deceit or misrepresentation).
Beach was hired to prepare a special needs trust for a client. She delayed over several months to draft the trust and failed to respond to status requests. After the client executed the special needs trust and testamentary instruments, Beach did not provide them to the client until the bar requested copies; those documents show that the attorney notarized the signature of one of her employees as an attesting witness when the employee had not been present to witness the client sign.
Beach was previously suspended for violating DR 1-102(A)(2) for criminal conduct that reflects adversely on fitness to practice law (failure to pay withholding taxes).
JOHN V. McVEA
On Aug. 10, 2015, the disciplinary board approved a stipulation for discipline suspending Portland lawyer John V. McVea from the practice of law for six months for violating the following: RPC 1.3 (neglect of a legal matter); RPC 1.4(a) and (b) (failure to keep a client reasonably informed about the status of a legal matter and failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, respectively); RPC 1.7(a)(2) (self-interest conflict); and RPC 8.4(a)(3) (conduct involving misrepresentation by omission).
In March 2010, McVea undertook to represent the plaintiff in a personal injury action. McVea filed a civil complaint for damages but, otherwise took no substantive action on her legal matter and failed to respond to her repeated inquiries on the matter. Ultimately, the court dismissed the personal injury action for McVea’s failure to comply with an order compelling discovery. McVea made no attempt to reinstate the case, did not file an objection to the defendant’s statement of attorney fees and did not otherwise communicate that a supplemental judgment for fees in the amount of $5,673.75 was entered against her. Instead, McVea represented to his client that the court dismissed her case on the merits.
McVea admitted that he continued to represent his client without obtaining her informed consent, confirmed in writing, when a significant risk existed that his representation of the client would be materially limited by his personal interest in avoiding the consequences of his conduct. This created a significant risk of prejudice to his client’s interests.
McVea was admitted to the practice of law in 2005 and has substantial experience in the practice of law. He had no prior record of discipline.