Oregon State Bar Bulletin JANUARY 2016
Bar Actions - Discipline
Note: Nearly 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.
Effective Oct. 5, 2015, the disciplinary board approved a stipulation for discipline publicly reprimanding Portland attorney James Baker for violations of RPC 1.16(c) (duty to obtain court permission when terminating representation) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice).
Baker made numerous appearances on behalf of defendants (a company and its owners) in a contract dispute with another company. At a pre-trial conference one week before trial, Baker requested a continuance. The judge denied the request. In response, Baker reasserted arguments previously made in a motion for reconsideration that certain earlier rulings of the judge established that neither Baker, nor the firm with which he was associated, was attorney of record and therefore not obligated to appear at trial. The judge disagreed with Baker’s assertion and notified Baker that he should appear for trial as scheduled.
Baker did not file either a consent or motion to withdraw pursuant to ORS 9.380(1), UTCR 3.140 and RPC 1.16. On the day of trial, the parties appeared for trial but Baker did not. Trial could not proceed because defendants were unrepresented. The judge continued the trial to allow time for Baker’s clients to retain new counsel. A motion to withdraw was later filed on behalf of Baker and the firm with which he was associated, and it was granted.
The stipulation reflected that Baker has substantial experience in the practice of law, but did not act with a selfish or dishonest motive and had no prior record of discipline.
MARK AUSTIN CROSS
Pursuant to a stipulation for discipline approved by the disciplinary board, effective Oct. 15, 2015, Oregon City attorney Mark A. Cross was publicly reprimanded for violation of RPC 1.4(a) (failure to keep a client informed about the status of a matter and comply with reasonable requests for information).
In January 2014, Cross agreed to represent a client to modify the parenting provisions of her judgment of dissolution of marriage before she was scheduled to leave the country in May 2014. After February 2014, and until his services were terminated by this client in late April 2014, Cross failed to take any action on the client’s matter, failed to notify her that he was unable to do so because he and his children were ill, and failed to read or respond to the client’s email requests for information about the status of her case.
The stipulated noted in aggravation Cross’s substantial experience in the practice of law and a prior admonition for similar conduct. In mitigation, Cross had personal circumstances that contributed to his misconduct, and he cooperated with the bar’s investigation.
ZACHARY WAYNE LIGHT
7-month suspension, all but 30 days stayed, 3-year probation
Effective Nov. 1, 2015, the Oregon Supreme Court approved a stipulation for discipline suspending Medford attorney Zachary Wayne Light from the practice of law for 7 months for violation of RPC 8.4(a)(2) (criminal conduct reflecting adversely on fitness) and ORS 9.527(2) (criminal conviction), with all but 30 days of the suspension stayed, pending Light’s successful completion of a three-year term of probation that essentially tracks the probation imposed in the underlying criminal matter, with some additional conditions.
In October 2014, Light was convicted of the Class A misdemeanor of invasion of privacy. The conviction resulted from Light’s actions in placing a camera in his minor stepdaughter’s bedroom, with the intention of filming her without her knowledge or consent. The minor stepdaughter, who had not consented to being filmed, located the camera, which contained footage of her in a state of undress.
During the term of his probation, Light will be monitored by the State Lawyer’s Assistance Committee. Among other requirements, he is prohibited from representing minors or engaging in certain other legal representation that involves issues of a sexual nature.
The stipulation recognized aggravating factors including that Light’s conduct was selfishly motivated and involved a vulnerable victim. In mitigation, Light had no prior discipline; was experiencing personal or emotional problems, including chemical dependency issues; fully cooperated in the bar’s investigation; had other penalties and sanctions imposed upon him in the criminal case; and expressed remorse and dismay at his behavior. Light has been a lawyer in Oregon since 2003.
JULIE A. KRULL
New Orleans, La.
Form B resignation
Effective Nov. 12, 2015, the Oregon Supreme Court accepted the Form B resignation of immigration attorney Julie Krull, who formerly practiced in Portland.
At the time of her resignation, a formal complaint was pending against Krull alleging that between April 2008 and August 2014, Krull engaged in misconduct including: neglect of legal matters (RPC 1.3); failure to keep clients reasonably informed and comply with reasonable requests for information (RPC 1.4(a)); clearly excessive fees (RPC 1.5(a)); improper handling of client funds (RPC 1.15-1(d)); failure to take steps to protect clients’ interests upon termination of representation (RPC 1.16(d)); and knowing failure to respond to lawful demands from a disciplinary authority (RPC 8.1(a)(2)).
At the time of Krull’s resignation, six additional complaints were also under investigation where the complainants made similar allegations to those in the formal complaint. In addition, a petition was pending before the Oregon Supreme Court in which the bar sought Krull’s immediate suspension, pending the outcome of disciplinary proceedings, for her alleged abandonment of her practice and failure to return clients’ unearned fees. Krull had been a lawyer in Oregon since 1996.
The resignation recited that the Professional Liability Fund has taken custody of Krull’s client files.
KEVIN E. MAYNE
Form B resignation
Effective Nov. 12, 2015, the Oregon Supreme Court accepted the Form B resignation of Kevin E. Mayne. At the time of his resignation, the bar was pursuing a disciplinary proceeding in which Mayne was alleged to have violated RPC 1.15-1(a) (failure to keep complete records of client funds). The resignation recited that attorney Sydney Brewster has custody of Mayne’s remaining client files.
DAVID C. NOREN
Pursuant to a stipulation for discipline approved by the disciplinary board, Hillsboro attorney David C. Noren was suspended for a period of 30 days, effective Nov. 14, 2015.
In 2010, Noren agreed to act as the hearing officer for a Health Department enforcement proceeding. Shortly after his appointment, Noren became concerned about his jurisdiction to hear the matter, but his attempts to resolve his concerns were unsuccessful. Thereafter, Noren did not advise the parties of his concerns, take further action to resolve them or withdraw from the proceeding.
Noren stipulated that his conduct violated RPC 1.3 (neglect of a legal matter) and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice). The stipulation reflected that Noren’s conduct was aggravated his substantial experience in the practice of law, and mitigated by the absence of prior discipline, his cooperation with the bar’s investigation, and absence of a dishonest or selfish motive.
MILTON E. GIFFORD
Effective Dec. 1, 2015, the disciplinary board approved a stipulation for discipline suspending Cottage Grove lawyer Milton E. Gifford for 60 days for violations of: RPC 1.1 (lack of competence); RPC 3.3(a) (misstatements to a tribunal and failing to correct misstatements previously made); and RPC 8.4(a)(3) (conduct involving misrepresentation).
In July 2014, while representing the personal representative (“PR”) of an intestate estate, Gifford prepared court documents that listed six heirs, all the decedent’s nieces and nephews. The PR signed these documents before a notary. Gifford later learned that one of the heirs was reportedly in jail, while another was transient and difficult to locate.
Without reviewing Oregon’s statutes relating to missing heirs, and at the PR’s request, Gifford revised portions of the documents the PR had signed which, when altered, represented that there were only four heirs, rather than six. One document recited that the PR had made “reasonable efforts to identify and locate” all of the heirs, a statement that remained in the altered documents. Gifford then filed the altered documents with the probate court. In light of his knowledge that there were in fact six heirs, his contrary representations were misstatements to the court. Gifford subsequently prepared and submitted to the court additional documents that named only four heirs.
Several weeks later, one of the heirs objected and rescinded her agreement to the misstatement. Gifford thereafter prepared new documents in which the two previously-omitted heirs were identified, and the probate proceeded with all six heirs.
Although Gifford has substantial experience in the practice of law, the stipulation recited that his lack of prior discipline, good faith effort to rectify consequences of his misconduct, cooperation with the disciplinary proceedings and remorse all mitigated the presumptive sanction.
6-month suspension, 90 days stayed, 2-year probation
Effective Dec. 1, 2015, the disciplinary board approved a stipulation for discipline suspending Portland attorney, Paul Krueger, for 6 months for violations including, RPC 1.5(a) (illegal fee); RPC 1.6(a) (improper revelation of information relating to the representation of a client); RPC 1.8(g) (participation in an aggregate settlement without informed written consent); RPC 1.15-1(a) (failure to maintain funds in trust); RPC 1.15-1(c) (withdrawal of funds from trust before earned); RPC 1.15-1(d) (failure to notify clients of receipt of funds in which they have an interest); RPC 3.3(a) (failure to correct false statement of material fact previously made to a tribunal); RPC 8.1(a)(1) (false statements in connection with a disciplinary investigation); RPC 8.4(a)(3) (misrepresentations and dishonesty reflecting adversely on fitness to practice); and RPC 8.4(a)(4) (conduct prejudicial to the administration of justice). Ninety days of the suspension is to be stayed, pending Krueger’s successful completion of a 2-year term of probation.
Krueger’s conduct occurred in connection with two matters. The first involved Krueger’s handling of settlement funds pertaining to a personal injury/wrongful death case. Krueger was originally retained to represent client in connection with the pursuit of a personal injury claim. The client later committed suicide. It is disputed whether the client’s surviving mother signed a written contingency agreement to continue to pursue the client’s claims, but no such agreement was located. Krueger dismissed the personal injury action and refiled a wrongful death action against the same defendants. Krueger filed a probate petition to name the client’s mother as personal representative. The petition was deficient, and Krueger arranged for another attorney to substitute into the proceeding as counsel for the client’s mother. That attorney successfully had the client’s mother appointed as personal representative of the estate. The wrongful death civil claim was the estate’s only asset.
When a voluntary resolution of the matter was eventually achieved, the settlement agreement required that the settlement funds remain in trust until court approval and that the lawsuit not be dismissed until after court approval. Krueger did not obtain court approval prior to his staff’s removal from the trust account of the portion believed to represent his attorney fees. The case was dismissed after Krueger reported that it had settled without obtaining court approval of the settlement. More than a year later, upon realizing that the funds had been mistakenly removed from trust, Krueger directed his staff to move an amount equal to the total settlement funds into a separate trust account.
Both Krueger and his office manager asserted under oath their belief that the personal representative had executed a valid written contingency agreement in the matter. Although he produced a contingent fee agreement that had previously been executed by the decedent, he failed to produce one bearing the signature of the personal representative. During probate hearings convened for the purpose of approving the settlement, Krueger testified that the settlement proceeds were first deposited into his regular IOLTA account (non-interest bearing) but were later — between August and October of 2011 — transferred into an interest-bearing trust account. Krueger was not specifically asked and did not volunteer the occurrence of or an explanation regarding the previously mistaken removal of the funds representing his claimed attorney fees and costs from trust more than a year before, or that the funds had only recently been returned. The original complaint filed with the Bar was unrelated to the handling of funds, however, after Krueger responded to the initial complaint, concerns were raised regarding funds in trust. During the pendency of the bar complaint, Krueger, through counsel, represented that the funds were kept continuously in trust and provided a summary that omitted information about the interim withdraw of settlement funds from trust. Once unredacted trust account records were sought, Krueger produced additional records evidencing the removal of attorney fees and costs from trust shortly after their receipt, thereby demonstrating the inaccuracy of his previous representations regarding their continuous presence in trust.
In the second matter, Krueger represented an adult son/driver and mother/passenger regarding injuries both received in an automobile accident. Initially, the case was being primarily handled by a senior associate in Krueger’s office over whom Krueger had direct supervisory authority. Krueger had limited actual involvement with the matter. Both the client driver and the at-fault driver were insured by the same insurance company. The at-fault driver’s policy was not enough to pay son and mother’s combined medical expenses. When the at-fault driver’s company offered policy limits, the associate immediately sent releases to the clients. Prior to the associate notifying the clients of the receipt of funds or receipt of signed releases, Krueger’s staff withdrew his total attorney fees and costs from trust. The clients did not recognize that Krueger’s office had received funds until nearly a year later, from a source outside of Krueger’s office. At that point, Krueger assumed primary responsibility for the case, and disbursed a portion of the settlement to each client.
The son also had a $1 million underinsured motorist (UIM) policy. As a result of a mediation, the insurer agreed to pay $500,000 total to settle both clients’ cases. The clients expressed concern about their outstanding medical expenses, but agreed to accept the settlement on their belief that Krueger would: (1) seek to negotiate with their medical care providers to greatly reduce their medical expenses; (2) provide them each with some amount of money beyond their medical expenses (the precise amount of which was in dispute); and (3) disburse the settlement proceeds within 10 days. Son and mother signed a settlement agreement which provided that an aggregate amount was being paid to settle both of their UIM claims. Krueger did not provide the clients a written explanation of the risks of engaging in an aggregate settlement. Krueger received the settlement funds and deposited them in trust. Subsequently, Krueger sent the clients a summary of the specific reduced amounts he proposed to offer their medical providers, to which they objected. The attorney/client relationship broke down. The clients demanded that Krueger release to them the funds held in trust for the claims of medical providers. Pursuant to RPC 1.15-1, Krueger refused. Thereafter, the clients notified Krueger in writing that they would be handling the negotiations with their providers themselves and directed Krueger and his office to have no further contact with the providers. Krueger distributed to the clients the undisputed amount of the settlement funds in a single check and thereafter spoke with one of son’s protected medical providers, confirming that his office had disbursed all of the money other than the money to pay the medical practitioners and asserting that there were more than ample funds to pay that medical provider’s bill, in derogation of his clients’ instructions.