Oregon State Bar Bulletin APRIL 2016
Bar Actions - Discipline
Note: Nearly 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.
DAVID STANLEY AMAN
1-year suspension, 6 months stayed, 2-year probation
Effective Jan. 1, 2016, the Oregon Supreme Court approved a stipulation for discipline suspending Portland lawyer David Stanley Aman for one year, all but six months stayed, pending completion of a two-year term of probation, for violations including: RPC 1.3 (neglect); RPC 1.4(a) (failure to keep a client reasonably informed); RPC 1.4(b) (failure to communicate sufficiently to allow a client to make informed decisions regarding the representation); RPC 1.16(d) (failure to take necessary steps upon withdrawal); RPC 8.1(a)(2) (failure to respond to a disciplinary authority); RPC 5.5(a) and ORS 9.160 (unlawful practice of law); and RPC 8.4(a)(3) (conduct involving misrepresentation).
In May 2008, Aman undertook to represent a client in a patent infringement matter on a contingency fee basis. Aman agreed to attempt to negotiate a settlement with potential infringers of the client’s patent, but not to pursue litigation. Aman wrote letters to two potential infringers and reviewed materials, including evidence of prior art, submitted in response that raised concerns as to the validity of his client’s patent. He discussed the discoveries with the client, but failed to advise her in writing or otherwise that the prior art made it unlikely that the targets would ever agree to pay license fees. Aman also failed to provide the client with a written opinion as to the viability of her infringement case, and failed to respond to her numerous messages regarding the status of his review. In September 2013, the client terminated Aman’s representation and asked him to return her file. After receiving no response and no file from Aman, the client complained to the bar in January 2014.
During the course of the ensuing investigation, the bar’s disciplinary counsel’s office sent letters to Aman inquiring about the client’s complaint. In July 2014, after Aman did not respond to the bar’s inquiries, Aman was administratively suspended pursuant to BR 7.1 for failing to cooperate. Aman continued to practice until Oct. 1, 2014, even after he became aware of his suspension, without notifying his clients or partners of his suspension. Aman’s law firm intervened when it was alerted to the situation by disciplinary counsel’s office.
The stipulation recited that Aman initially acted negligently with regard to all charges, and only later acted knowingly. His sanction was mitigated by factors including absence of a prior disciplinary record, personal and emotional problems, remorse, and imposition of other penalties and sanctions.
WILLIAM L. GHIORSO
Pursuant to a stipulation for discipline approved by the disciplinary board on Jan. 20, 2016, William Ghiorso was publically reprimanded for violating RPC 5.5(a).
On July 17, 2015, after four notices from the OSB Professional Liability Fund, Ghiorso was administratively suspended for failing to pay his PLF assessment. On his first day of suspension, before receiving the letter notifying him that he had been suspended, Ghiorso appeared in court to argue pretrial motions which resulted in continuance of trial. When Ghiorso returned to the office on July 22, 2015, he became aware of the letter notifying him that he had been suspended. He applied for reinstatement and appropriately disclosed that he had appeared in court during his suspension.
Ghiorso’s violation of RPC 5.5(a) is aggravated by his previous violation of the rule in the same manner and his substantial experience in the practice of law. It is mitigated by his prompt actions to bring his dues current and his honesty with the bar regarding the circumstances of this violation.
RENE ERM II
Walla Walla, Wash.
Effective Feb. 1, 2016, the disciplinary board approved a stipulation for discipline suspending Walla Walla, Washington attorney Rene Erm II for 30 days for violations of the following: RPC 1.3 (neglect); RPC 1.4(a) (failure to keep a client reasonably informed); RPC 1.4(b) (failure to explain matters to the extent necessary to allow a client to make informed decisions); RPC 1.16(c) (failure to obtain required permission of a tribunal to withdraw as counsel); and RPC 1.16(d) (failure to protect a client’s interests upon termination of representation).
Erm’s conduct arose in his representation of a client, “Wife,” as Oregon counsel in a multijurisdictional custody and dissolution matter. Wife, a Utah resident, was served by Husband with an Oregon petition for dissolution. Erm appeared for Wife asserting Oregon’s lack of subject matter jurisdiction as to child custody, but conceded that Oregon had jurisdiction to entertain all other aspects of the dissolution. Erm did not file a response to Husband’s petition for dissolution or take other substantive action regarding Wife’s interests in the Oregon dissolution.
Wife thereafter filed a petition for dissolution in Utah. The court held that Oregon had jurisdiction as to all issues except the child custody issues. Erm believed that he wrote to Wife at that point, notifying her that his representation was completed.Wife denied any notice. Regardless, Erm failed to withdrawal from the Oregon dissolution or notify Wife that he had not officially withdrawn but had no intention of taking any action to respond to court notices or filings or to pass them along to Wife or her other attorney.
Erm remained counsel of record for Wife in the Oregon dissolution, receiving service of all pleadings and court notices. Accordingly, when Husband moved for a default judgment against Wife in the Oregon dissolution, Erm was served with this motion. Erm did not respond or object. Erm did not forward the default motion, or the subsequent order of default and judgment, to either Wife or her attorney, or notify them of their receipt or entry.
When Wife and her attorney thereafter learned that a default had been entered in the Oregon dissolution, Wife contacted Erm to protest. Erm assured Wife that he would file a motion to set aside the default judgment but did not, and did not respond to Wife’s subsequent attempts to contact him. Wife’s later pro se motion to set aside the default was denied.
The stipulation recited that Erm knowingly neglected and failed to communicate with Wife, resulting in substantial actual injury to Wife. Erm’s misconduct was aggravated by a prior record of discipline (although remote), a pattern of misconduct; multiple offenses and his substantial experience in the practice of law. Mitigating factors included Erm’s cooperation with the bar, physical disability at some of the time at issue and remorse.
Effective Feb. 3, 2016, the disciplinary board suspended Keizer lawyer Larry Wright from the practice of law for 120 days for violation of RPC 8.1(a)(2) (failure to respond in connection with a disciplinary matter). When Wright did not respond to the bar’s formal complaint, an order of default was entered against him.
The trial panel found that in June 2014, the bar received a complaint regarding Wright’s conduct and that, beginning in September 2014, the bar’s disciplinary counsel’s office requested that Wright respond to the complaint. Thereafter, Wright knowingly failed to respond to repeated requests for information, even after being personally served with the bar’s formal complaint.
Based upon the facts and prior case law, the trial panel determined that such knowing conduct merited a 120-day suspension, notwithstanding Wright’s absence of prior discipline.
CAROLYN R. SMALE
60-day suspension, all stayed, 2-year probation
Effective Feb. 18, 2016, the disciplinary board approved a stipulation for discipline suspending Hood River attorney Carolyn R. Smale for 60 days for violations of RPC 1.3 (neglect) and RPC 1.4(a) and (b) (duties to adequately and fully communicate with clients). All of the suspension will be stayed conditioned on her successful completion of a two-year probation, which will focus on improving practice management.
Smale’s violations occurred in the context of a Chapter 7 bankruptcy she filed on behalf of a client in November 2010. Between May 2011 and March 2013, Smale failed to forward or respond to several communications from the bankruptcy trustee or respond to most of the client’s attempts to communicate with her. Similarly, Smale failed to respond to motions brought by the trustee or convey the resulting orders to her client. Smale believed that the communications and filings had been sent directly to her client and mistakenly assumed that the client had received them.
In mid-October 2012, the trustee filed an adversary proceeding, and a pretrial hearing was set for early December 2012. Smale did not inform the client of the upcoming hearing or communicate with her regarding how she wanted to proceed. Neither Smale nor her client made an appearance at the hearing, and the trustee obtained a default judgment. Smale did not inform the client of the default judgment. In early January 2013, the court revoked the client’s discharge.
In March 2013, Smale told her client she would take remedial measures regarding the adversary judgment and the revocation of the debtor’s discharge, but did not timely file a motion to do so. The client then contacted the trustee directly and resolved the matter.
Although aggravated by her multiple offenses and substantial experience in the practice of law, Smale’s sanction was mitigated by the following: her lack of prior relevant discipline; cooperation with the investigation; remorse; her positive reputation in the legal community; and personal, health and emotional problems during the period when the conduct occurred.
Effective Feb. 6, 2016, the disciplinary board disbarred Portland attorney Jeffrey Dickey for violations including: RPC 1.3 (neglect of legal matters); RPC 1.4(a) and (b) (inadequate client communication); RPC 1.15-1(a) (failure to safeguard client property); RPC 1.15-1(c) (failure to deposit advance fees into trust); RPC 1.15-1(d) (failure to promptly account for client property); RPC 8.1(a)(1) (knowing false statement of material fact in connection with a disciplinary matter); RPC 8.1(a)(2) (knowing failure to respond to a disciplinary authority); and RPC 8.4(a)(3) (conduct involving dishonesty and misrepresentation).
The trial panel entered a default judgment against Dickey for his conduct in three separate client matters, one of which involved Dickey’s misuse and conversion of his incarcerated client’s funds that had been entrusted to Dickey through a durable power of attorney.
In determining that Dickey should be disbarred, the panel considered that he had acted intentionally and had caused actual injury to his clients, the public and the legal profession. The trial panel also found in aggravation that: Dickey acted with dishonest or selfish motive; his conduct involved multiple offenses and displayed a consistent pattern of misconduct; he obstructed the disciplinary proceeding in bad faith; he failed to acknowledge the wrongful nature of his conduct; and that a victim of his conduct was vulnerable.
MICHAEL G. ROMANO
Effective March 1, 2016, the disciplinary board approved a stipulation for discipline suspending Bend attorney Michael G. Romano for 60 days for violations of RPC 1.4(b) (duty to communicate adequately to enable client to informed decisions regarding the representation) and RPC 1.7(a)(2) (personal interest current-client conflict).
In September 2012, Romano was hired represent a client on DUII charges and associated matters. During September and October, Romano worked with the client on matters related to her driver’s license, including a hearing before the DMV, appeared with her for arraignment in circuit court on the DUII charge and communicated with the assistant district attorney regarding the case.
In November 2012, a personal relationship developed between Romano his client that affected Romano’s professional judgment on behalf the client in her criminal matters. Romano recognized the conflict of interest and attempted to craft a conflict waiver but did not immediately withdraw from the representation or provide the client with sufficient information to allow her to determine whether to continue with Romano as her lawyer in the matters.
The stipulation recited that Romano’s conduct was aggravated by a selfish motive, a vulnerable victim and his substantial experience in the practice of law.
In mitigation, Romano had no relevant disciplinary record, he had been cooperative with the bar, and he expressed remorse.