Oregon State Bar Bulletin — FEBRUARY/MARCH 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.
MICHAEL JAMES BUROKER
OSB #870284
Damascus
Public reprimand
Effective Dec. 2, 2015, the disciplinary board approved a stipulation for discipline, reprimanding Damascus attorney Michael James Buroker for violation of RPC 4.2 (communication with a represented party).
Buroker agreed to represent a client in a probate matter. The client terminated the representation and retained other counsel. Buroker elected to pursue a small claims court action against his former client for fees related to the representation. In prosecuting the small claims matter, Buroker made repeated contact with his former client, over the objection of his client’s current attorney. Buroker negligently failed to recognize that the involvement of his client’s current attorney in the small claims action implicated the restrictions of RPC 4.2.
The stipulation noted the existence of a selfish motive and Buroker’s substantial experience, having practiced in Oregon since 1987. However, Buroker had no prior discipline, cooperated fully with disciplinary authorities and expressed remorse for his conduct.
WILLIAM BRYAN PORTER
OSB #840821
Tillamook
Public reprimand
Effective Dec. 7, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Tillamook District Attorney William Bryan Porter for violation of RPC 8.4(a)(4) (conduct prejudicial to the administration of
Porter’s conduct occurred in connection with his prosecution of a case in which an aggravated murder charge was pursued. A disputed issue was whether the defendant was legally entitled to enter the trailer where he shot the victim.
Some months after the crime, Porter received two emails from the victim’s widow stating that her husband paid $200 a month rent to park his travel trailer on the defendant’s property. On Porter’s instructions, the lead detective followed up with the widow, and the two exchanged email correspondence about the existence of a checkbook evidencing the payment of rent; however, the detective did not obtain the checkbook and failed to prepare a report memorializing this information.
Several months later at a pretrial conference, Porter disclosed that he intended to prove that the victim paid $200 a month rent to park his travel trailer on the defendant’s property. However, Porter did not disclose his or the detective’s emails with the widow.
At trial a number of months later, the widow testified that she was aware of a rental agreement through her husband, the defendant, and from her husband’s checkbook. When the widow was questioned by the defense regarding the existence of a rental agreement, she said that she had previously shared the information with Porter and the detective.
The next morning, the defendant’s lawyer asserting a discovery violation, moved for a mistrial or, alternatively, to strike the widow’s testimony. The defense demanded the emails and, pursuant to that demand, Porter produced all of the emails without any claim of work product or other privilege.
The following morning, at the hearing on the defense’s motion for a mistrial, Porter advised the trial court that he agreed that he should have provided the emails to the defense. Following argument, the trial court denied the motion for a mistrial but ordered that the widow’s testimony be stricken in its entirety.
The stipulation recited that Porter’s conduct was aggravated by his substantial experience in the practice of law, but mitigated by his absence of prior discipline, and his cooperation in the underlying trial and the disciplinary proceeding.
DIRK D. SHARP
OSB #965809
Bend
One-year suspension
Effective Dec. 10, 2015, the Oregon Supreme Court issued an order imposing reciprocal discipline, suspending Bend attorney Dirk D. Sharp for one year for violating the following: California RPC 3-110(A) (failure to perform with competence); RPC 4-100(B) (failure to preserve funds of a client); California Business and Professions Code § 6068 (failure to keep client reasonably informed); and § 6106 (acts involving moral turpitude, dishonesty or corruption).
In October 2006, Sharp was retained to pursue appellate options for a criminal client in prison who had been convicted of attempted murder. At the inception of the attorney-client relationship, Sharp knew or should have known that the client’s appellate options had already been fully exhausted. Sharp was paid a $25,000 advance fee. Thereafter, Sharp communicated very sparsely with the client, despite numerous messages from the client and his family inquiring about the status of the appeal. More than four years later, in 2011, Sharp provided the client copies of a notice of appeal and an application for a writ of habeas corpus, dated May 2007, and a second application for writ of habeas corpus dated May 2009. Sharp had never filed these documents with the court but gave them to his client to mislead the client into believing the work had been performed. In fact, Sharp performed no “services of value.”
Although Sharp received the messages from the client and his family, he did not return any calls until after the California bar action was commenced against him. The client terminated Sharp’s employment in July 2013. Sharp has not provided the client with an accounting or a refund of any part of the $25,000 fee.
NICK MERRILL
OSB #072606
Portland
120-day suspension, all but 30 days stayed, 2-year probation
Effective Dec. 14, 2015, the disciplinary board approved a stipulation for discipline suspending Portland attorney Nick Merrill for 120 days for violations of: RPC 1.3 (neglect); RPC 1.4(a) (failure to keep a client reasonably informed); RPC 1.4(b) (failure to explain a matter to enable a client to make informed decisions regarding the representation); RPC 1.15-1(a) (failure to keep complete records of client funds); RPC 1.15-1(d) (failure to promptly deliver property the client is entitled to receive); RPC 1.16(a)(2) (failure to withdraw from representation when lawyer’s condition renders unable to continue); RPC 1.16(d) (failure to protect a client’s interests on termination of representation); and RPC 8.1(a)(2) (failure to respond to a disciplinary authority). All but 30 days of the suspension was stayed, pending Merrill’s successful completion of a two-year term of probation, supervised by the State Lawyer’s Assistance Committee.
The charges against Merrill arose in connection with his representation of three clients in unrelated civil matters. In each of the matters Merrill neglected aspects or all of his clients’ cases and failed to respond to requests for information. In July 2013, Merrill began experiencing personal issues that impaired his ability to timely or competently attend to clients’ matters. He did not thereafter withdraw from representations or notify affected clients of his impairment. In at least one of the matters Merrill did not account for or refund the flat fee paid by his client or return her client file, despite requests from the client and demands from disciplinary counsel’s office.
The stipulation recites that Merrill’s conduct was aggravated by a pattern of misconduct, multiple offenses, vulnerable victims and Merrill’s substantial experience in the practice of law, having been admitted in Oregon in 2007 and Arizona in 2002. Mitigation included absence of a prior record of discipline, personal or emotional problems, and remorse.
THEODORE F. SUMNER
OSB #004060
Beaverton
3-year suspension
Effective Dec. 24, 2015, the Oregon Supreme Court approved a stipulation for discipline suspending Beaverton lawyer Theodore F. Sumner for three years for violations of: RPC 1.3 (neglect); RPC 1.4(a) and (b) (inadequate communication with a client); RPC 1.15-1(d) (failure to promptly deliver property to which client or third person was entitled); RPC 1.16(d) (failure to properly withdraw); RPC 5.5(a) and ORS 9.160 (unauthorized practice of law); RPC 8.1(a)(2) (knowing failure to respond in a bar investigation); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Sumner’s violations occurred in seven different matters involving clients pursuing remedies in various civil matters. In each case, Sumner failed to keep his client reasonably informed about the status of the legal matter and to promptly respond to the client’s reasonable requests for information. In one matter Sumner also failed to promptly return documents that a client had provided. In another, Sumner continued to practice law for two weeks after he had been administratively suspended. After his clients complained to the bar, Sumner knowingly failed to respond to the bar’s inquires.
Sumner’s conduct was aggravated by a pattern of misconduct, multiple offenses and substantial experience in the practice of law. He was admitted to practice in Oregon in 2000. Sumner’s conduct was mitigated by the absence of a prior disciplinary history and personal or emotional problems.
Other Notices
Reciprocity applications are now online at www.osbar.org/admissions/index.html#applicants. Reinstatement applications are at www.osbar.org/reinstatements. Bar exam applicants are at www.osbar.org/admissions/febexam.html.