Complaint to Oregon State Bar by citizen re:
Brian Sunderland
Who is this Oregon lawyer?_Organization: Sunderland and Associates
Who is this Oregon lawyer?_StreetAddress: 10121 SE Sunnyside Rd
Who is this Oregon lawyer?_Address2:
Who is this Oregon lawyer?_City:
Clackamas
Who is this Oregon lawyer?_State:
OR
Who is this Oregon lawyer?_ZipCode: 97015
This Oregon lawyer missed a filing deadline. This Oregon lawyer refuses to
communicate with me. This Oregon lawyer dumped me, leaving me helpless. This
Oregon lawyer has dragged out the case.
Citizen who filed complaint with Oregon State Bar Sean Deming
Contact_WorkPhone:
(808)349-2700
Contact_Email:
sean@reefpirates.com
facts:
I paid $2500 to Brian Sunderland (of Sunderland and associates) to handle my
estate case.
After filing the initial paperwork, my attorney disappeared. He would not
return phone
calls, did not call me and keep me up to date, etc. The only
correspondence I received
was from the courts, which was a letter stating I had a court date set due to
not filing
paperwork on time. I had to have a personal representative fly to Oregon
for the court
date. My attorney was not present. He has not returned any calls or
emails and has not
made an effort to contact me at all.
He was paid $2500 to handle the case for me (over 3
years ago now), and aside from filing the initial paperwork, has done nothing.
I am
furious that these type of things are allowed to occur. I paid him good
money to handle
my estate case, and was told it would take 6 months at the most to get it
resolved. It
has been 3 years now, and it still hasn't been resolved, nor has my attorney
been present.
He basically took the money and left me hung out to dry. I now run
the risk of being removed as executor to the estate (for my wife) because this
attorney didn't do what he was
contracted to do.
If he can't handle a simple case such as mine, he shouldn't be allowed
to practice law. I work very hard for what little money I have, and this
attorney is
simply a THIEF.
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IN THE SUPREME COURT OF THE STATE OF OREGON In re: ) ) Complaint as to the
Conduct of ) Case Nos. 05-167, 05-168, 05-169, ) 05-170, 06-86, and 06-87 BRIAN
J. SUNDERLAND, ) ) Accused. ) Counsel for the Bar: Steven W. Seymour; Timothy J.
Resch; Jane E. Angus Counsel for the Accused: Bradley F. Tellam Disciplinary
Board: None Disposition: Violations of DR 1-102(A)(3), DR 1-102(A)(4), DR
7-102(A)(7), DR 7-106(A), DR 7-110(B), RPC 8.4(a)(4), RPC 5.1(a), RPC 5.1(b), DR
9-101(A), DR 9-101(C)(3), RPC 1.15-1(c), and RPC 1.15-1(a). Stipulation for
Discipline. 1-year suspension. Effective Date of Order: October 7, 2007 ORDER
ACCEPTING STIPULATION FOR DISCIPLINE Upon consideration by the court. The court
accepts the Stipulation for Discipline. Brian J. Sunderland, Oregon State Bar
No. 924780, is suspended from the practice of law in the State of Oregon for a
period of one year, effective October 7, 2007. October 4, 2007/s/ Paul J. De
Muniz CHIEF JUSTICE STIPULATION FOR DISCIPLINE Brian J. Sunderland, attorney at
law, (hereinafter, “Accused”) and the Oregon State Bar (hereinafter, “Bar”),
hereby stipulate to the following matters pursuant to Oregon State Bar Rule of
Procedure 3.6(c).
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1.The Bar was created and exists by virtue of the laws of the State of Oregon
and is, and at all times mentioned herein was, authorized to carry out the
provisions of ORS Chapter 9, relating to the discipline of attorneys. 2.The
Accused was admitted by the Oregon Supreme Court to the practice of law in
Oregon on September 18, 1992, and has been a member of the Oregon State Bar
continuously since that time, having his office and place of business in
Clackamas County, Oregon. 3.The Accused enters into this Stipulation for
Discipline freely, voluntarily, and with the advice of counsel. This Stipulation
for Discipline is made under the restrictions of Bar Rule of Procedure 3.6(h).
4.At the direction of the State Professional Responsibility Board (hereinafter,
“SPRB”), the Accused is charged with the following violations: Case Nos. 05-167,
05-168 - DR 1-102(A)(3), DR 1-102(A)(4), DR 7-102(A)(7), DR 7-106(A), and DR
7-110(B); Case No. 05-169 – RPC 8.l(a)(1), RPC 8.4(a)(3), and RPC 8.4.(a)(4);
Case No. 05-170 – RPC 5.1(a) and (b), RPC 1.2(c), RPC 8.4(a)(3) and RPC
8.4(a)(4); and Case Nos. 06-86, and 06-87 – DR 9-101(A), DR 9-101(C)(3), RPC
1.15-1(c) and RPC 1.15-1(a). The parties intend that this Stipulation for
Discipline set forth all relevant facts, violations and the agreed-upon sanction
as a final disposition of the proceeding. FACTS AND VIOLATION Williams Matter
Case Nos. 05-167, 05-168 5.About April 2, 2003, James Williams and Brenda
Williams (collectively, “Williamses”) delivered $54,000 to Debbie Hashman and
William Hashman, Brenda Williams’ sister and brother-in-law (hereinafter,
collectively, “Hashmans”), the funds to be used as a down payment for the
purchase of a house in which the Hashmans would reside. About the same time,
Hashmans returned $10,000, $5,000 each, to the Williamses.
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6.On April 3, 2003, James Williams and Brenda Williams entered into a Shared
Housing Agreement with the Hashmans. Pursuant to the agreement, Hashmans agreed
to return $44,000 to the Williamses, $22,000 each, on sale of the house
purchased with the Williamses’ funds, or earlier. 7.On April 3, 2003, James
Williams and Brenda Williams, through other counsel, filed a voluntary Chapter 7
bankruptcy petition for relief in the United States Bankruptcy Court for the
District of Oregon (hereinafter “Bankruptcy Case”). The Williamses signed the
petition, schedules, and statement of financial affairs under penalty of
perjury. The Williamses did not disclose to the bankruptcy court all assets and
other property in which they claimed any legal or equitable interest, wherever
located and by whomever held, and all gifts and transfers of property made
within one year immediately preceding the commencement of the Bankruptcy Case,
including the $54,000 they delivered to the Hashmans or the shared housing
agreement with the Hashmans. 8.On May 12, 2003, pursuant to 11 USC §341(a), the
Williamses appeared for a first meeting of creditors in the Bankruptcy Case and
answered questions under penalty of perjury. The Williamses made false
statements and did not disclose in their bankruptcy petition and schedules or
during the 341(a) meeting of creditors all assets and other property in which
they claimed any legal or equitable interest, including the $54,000 or any part
thereof delivered to the Hashmans, the Shared Housing Agreement, and the
interest in the house purchased by the Hashmans with the Williamses’ funds, some
or all of which property was property of the bankruptcy estate. Through this
time, the Accused did not represent the Williamses in the Bankruptcy Case. 9.On
June 17, 2003, Brenda Williams retained the Accused to file a petition for
unlimited separation from James Williams. On June 30, 2003, the Accused filed a
petition for unlimited separation, the division of the parties’ personal and
real property, and other relief, Brenda Williams and James Williams, Clackamas
County Circuit Court Case No. DR0306905 (hereinafter, “Separation Case”).
10.Prior to and after April 2003, the Accused knew that concealment, failure to
disclose and misappropriation of bankruptcy estate property was, at a minimum
conversion of assets, and more seriously a crime. Prior to and after April 2003,
the Accused knew that knowingly making false statements in bankruptcy petitions,
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schedules and other documents filed with the bankruptcy court or during a 341(a)
meeting of creditors was a crime. The Accused also knew that bankruptcy debtors
could be denied discharge of all debts if they knowingly made false statements
in bankruptcy petitions, schedules and other documents filed with the bankruptcy
court or during 341(a) meetings of creditors, or concealed, failed to disclose
or misappropriated property belonging to a bankruptcy estate. 11.....About July
11, 2003, Brenda Williams notified the Accused that attorney Richard Hattenhauer
(hereinafter, “Hattenhauer”) held about $15,000 in the name of a corporation in
which she and James Williams claimed an interest. The funds held by Hattenhauer
was property that the bankruptcy trustee could claim as property of the
bankruptcy estate. 12On July 17, 2003, the bankruptcy court filed an order of
discharge in the Bankruptcy Case, effective August 6, 2003. The case was closed
as a “no-asset” case. As of the date of discharge, Williamses had concealed and
not disclosed to the bankruptcy court or bankruptcy trustee the existence of the
funds held by Hattenhauer. 13About July 22, 2003, the Accused filed an amended
petition in the Separation Case in which Brenda Williams sought the dissolution
of her marriage and other relief from James Williams, Brenda Williams and James
Williams, Case No. DR0306905 (hereinafter, “Dissolution Case”). Counsel for
James Williams sent letters to the Accused in which she cautioned against
actions in the Dissolution Case that would violate the automatic stay in effect
from the Bankruptcy Case. 14About August 14, 2003, the Accused filed a motion in
the Dissolution Case for an order restraining the parties from selling,
conveying, transferring or otherwise disposing of assets of the parties without
order of the court. In support of the motion, the Accused prepared and filed an
affidavit signed by Brenda Williams in which she represented that James Williams
had hoarded a large sum of cash, over $100,000, and that Hattenhauer held about
$20,000 in his lawyer trust account, funds in which Brenda Williams and James
Williams claimed an interest. 15About August 15, 2003, James Williams, through
his attorney, filed a response to the Dissolution Petition and about August 30,
2003, filed a motion for compulsory joinder of the Hashmans to protect James
Williams’ interest in the real property purchased with the funds James and
Brenda Williams delivered to the Hashmans.
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James Williams’ attorney served a copy of the motion and supporting affidavit on
the Accused. 16.....About September 15, 2003, Brenda Williams notified the
bankruptcy trustee that she and James Williams had not disclosed property that
should have been disclosed in the Bankruptcy Case. Brenda Williams also provided
the Accused, who by then had agreed to represent Brenda Williams in the
Bankruptcy Case, with a copy of the letter. 17On September 29, 2003, the
bankruptcy trustee requested information from the Accused concerning assets that
had not been disclosed in the Bankruptcy Case. About October 3, 2003, the
Accused provided information to the bankruptcy trustee concerning the Shared
Housing Agreement. 18Between September 15, 2003 and February 12, 2004, the
Accused did not provide information to the US Trustee, the bankruptcy trustee,
or the bankruptcy court concerning other property or interests in property
claimed by Brenda Williams and James Williams, which had not been disclosed in
the Bankruptcy Case. 19About October 6, 2003, the bankruptcy trustee filed a
motion to reopen the Bankruptcy Case on the ground that there may be additional
assets for distribution. The Accused received a copy of the motion. On November
19, 2003, the bankruptcy court held a hearing and granted the trustee’s motion
to reopen the Bankruptcy Case to investigate and recover assets that were not
disclosed by Brenda Williams and James Williams and for further administration
of the case. The court filed an order reopening the Bankruptcy Case on December
31, 2003, and further ordered that acts and proceedings against Brenda Williams
and James Williams and property belonging to the bankruptcy estate were stayed
pursuant to 11 USC §362. Although the Accused did not contemporaneously receive
a copy of the order because he was apparently not on the mailing matrix, he did
not inquire about the outcome of the November 19, 2003 hearing. 20On January 29,
2004, the US Trustee filed an adversary proceeding to revoke Brenda Williams’
and James Williams’ discharge in the Bankruptcy Case pursuant to 11 USC §727,
Adversary Proceeding No. 04-03037 (hereinafter, “Adversary Proceeding”). On
February 6, 2004, the US Trustee served the Accused, as counsel for Brenda
Williams, with a copy of the summons and complaint in the Adversary Proceeding.
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21...On February 12, 2004, without obtaining an order granting relief from the
stay from the bankruptcy court, and without notice to the bankruptcy court, the
US Trustee, the bankruptcy trustee, or James Williams, the Accused filed a trial
memorandum and appeared for trial in the Dissolution Case. The Accused presented
a prima facie case through the testimony of Brenda Williams and asserted that
funds held by Hattenhauer should be awarded and distributed to Brenda Williams.
The Accused did not serve James Williams with a copy of the trial memorandum.
James Williams did not appear for the trial in the Dissolution Case because he
claims he understood that proceedings were stayed by the automatic stay imposed
by the bankruptcy court. The Accused disclosed to the court that a bankruptcy
case was filed the previous year, that it was ongoing, and that Hattenhauer held
business funds in his trust account that his client would like awarded to her to
apply to IRS debt. The Accused did not disclose, however, that the funds held by
Hattenhauer had not been disclosed to the bankruptcy trustee or the bankruptcy
court, or that the funds were potentially property of the bankruptcy estate or
that the bankruptcy court had reopened the Bankruptcy Case based on allegations
that the Williamses had hidden and not disclosed assets. 22The Accused prepared
a form of general judgment in the Dissolution Case, which he submitted to the
state court without providing a copy of or notice to James Williams the US
Trustee, the bankruptcy trustee, or the bankruptcy court. Again, the Accused did
not disclose to the state court that the funds held by Hattenhauer had not been
disclosed to the US Trustee, the bankruptcy trustee, or the bankruptcy court; or
that the funds were potentially property of the bankruptcy estate; or that the
bankruptcy court had reopened the Bankruptcy Case based on allegations that the
Williamses had hidden and not disclosed assets. About February 26, 2004, the
court signed and filed the general judgment, which provided for the dissolution
of the marriage of Brenda Williams and James Williams and awarded Brenda
Williams, among other property, all funds held in Hattenhauer’s lawyer trust
account and be distributed to Brenda Williams. 23About March 15, 2004, the
Accused delivered a copy of the general judgment in the Dissolution Case to
Hattenhauer. Thereafter, the Accused demanded, without notice to the bankruptcy
court, the US Trustee, the bankruptcy trustee, or James Williams, that
Hattenhauer deliver funds held in Hattenhauer’s trust account to Brenda
Williams. The Accused did not disclose to Hattenhauer that the bankruptcy court
had reopened the Bankruptcy Case or that the US Trustee had filed an Adversary
Proceeding against Brenda Williams and James Williams to deny discharge pursuant
to 11 USC §727 for failure to disclose property belonging to the bankruptcy
estate and other conduct.
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24.....On March 19, 2004, Hattenhauer declined to deliver the funds held in his
lawyer trust account to Brenda Williams or the Accused because it appeared that
the judgment in the Dissolution Case had been obtained against James Williams by
default, without notice to James Williams. On March 19, 2004, Hattenhauer sent a
letter to the judge who had presided at the trial and signed the judgment in the
Dissolution Case and delivered to the state court his trust account check for
$18,846.94. Hattenhauer also sent a copy of his letter to the Accused. 25On
March 19, 2004, James Williams’ former counsel in the Dissolution Case sent a
letter to the judge who presided at the trial in the Dissolution Case reporting,
among other things, that the funds Hattenhauer delivered to the court were
property that belonged to or claimed to belong to the bankruptcy estate, and
asked that they be held and not distributed to Brenda Williams. The lawyer also
sent a copy of the letter to the Accused. At that time, the court took no
action. 26Between about March 19 and September 24, 2004, without disclosing to
the US Trustee and the bankruptcy court that funds which may belong to the
bankruptcy estate had been delivered to the court in the Dissolution case, that
he had obtained a judgment awarding those funds to Brenda Williams, or that he
had demanded that Hattenhauer deliver the funds to Brenda Williams, the Accused
contacted members of the judge's staff in the Dissolution Case to obtain release
of the funds Hattenhauer delivered to the court to the Accused or Brenda
Williams. The court did not release the funds as requested by the Accused.
27About April 1, 2004, new counsel for James Williams in the Dissolution Case
sent a letter to the Accused in which he notified that James Williams understood
that the proceedings in the Dissolution Case had been stayed as a result of the
automatic stay; that James Williams was surprised that the divorce was final;
and asked the Accused to provide him with a copy of the general judgment in the
Dissolution Case. The Accused did not respond. 28On April 14, 2004, James
Williams’ new counsel sent the Accused a second letter concerning the automatic
stay; again asked for a copy of the general judgment; and asked why the Accused
obtained a default against James Williams in the Dissolution Case. The Accused
did not respond. On May 6, 2004, James Williams’ new counsel sent the Accused a
third letter in which he asked the Accused to stipulate to set
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aside the general judgment in the Dissolution Case because it had been obtained
in violation of the automatic stay imposed by the bankruptcy court. The Accused
declined James Williams’ counsel’s request. 29.....On June 16, 2004, the
bankruptcy trustee sent the Accused a letter in which he stated that he was
unclear why the dissolution case was continued in light of the automatic stay.
The trustee asked the Accused to explain the status of the funds delivered by
Hattenhauer to the court in the Dissolution case. The trustee also notified the
Accused that those funds appeared to belong to the bankruptcy estate. 30About
July 19, 2004, the bankruptcy trustee sent a letter to the judge in the
Dissolution Case in which he advised of the bankruptcy trustee’s claim to and
interest in the funds Hattenhauer delivered to the court. The bankruptcy trustee
also sent a copy of the letter to the Accused. 31About September 24, 2004, the
Accused filed a motion for order to allow him to withdraw as Brenda Williams’
attorney in the Dissolution Case. The Accused did not serve Brenda Williams,
James Williams or James Williams new attorney with a copy of the motion. On
September 29, 2004, the court refused to grant the motion on the ground that the
Accused failed to serve Brenda Williams, James Williams or his attorney with a
copy of the motion. 32The Accused admits that the aforesaid conduct constitutes
conduct involving dishonesty, fraud, deceit or misrepresentation; conduct
prejudicial to the administration of justice; assisting a client in conduct the
lawyer knows to be fraudulent; disregarding a standing rule or a tribunal or
order of the court and ex parte communication with the court in violation of DR
1-102(A)(3); DR 1-l02(A)(4); DR 7-l02(A)(7); DR 7-106(A) and DR 7-110(B) of the
Code of Professional Responsibility. Floyd Matter Case No. 05-169 33On October
18, 2004, the court filed a Judgment and Decree of Dissolution of Marriage
(hereinafter, “Decree”) in the matter of Roger L. Floyd and Jeanette R. Floyd,
Clackamas County Circuit Court Case No. 94-01-025 (hereinafter, “Court Action”).
Pursuant to the terms of the Decree, Jeanette Floyd (hereinafter, “mother”) was
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awarded custody of the parties’ minor child, with reasonable and seasonable
visitation awarded to Roger Floyd (hereinafter, “father”). 34.....On November
22, 2004, mother, nka Jeanette Davis, filed a Motion for Order to Show Cause why
the Decree should not be modified to amend the parenting time schedule between
the parties and other relief. 35The court held a hearing concerning the motion
for modification of the Decree on January 28, 2005. The Accused, the attorney
for the father, and the father attended the hearing. During the hearing, the
court took the testimony of the parties’ minor child outside the presence of the
parties. The court directed that the child’s testimony be subject to a
protective order that limited the parties’ access to and possession of copies of
recordings containing the child’s testimony. The court told the attorneys for
the parties that they would be allowed a copy of the CD; that the attorneys were
to maintain possession of the CD; and that their clients could listen to the CD
of the child’s testimony in the attorneys’ offices, but the attorneys could not
provide or deliver the CD or a copy thereof to the parties. The court also
directed that the parties were not permitted to request or obtain a copy of the
CD. 36After the hearing, the Accused instructed his associate to obtain a copy
of the CD containing the minor child’s testimony from the court and to arrange
for father to listen to the testimony. The Accused’s associate obtained a copy
of the CD as requested and on February 21, 2005, at the request of father,
released a copy of the CD containing the minor child’s testimony to father
contrary to the court’s directive. The Accused contends that he advised his
associate of the protective order, but the associate does not recall that he did
so. 37The Accused failed to adequately communicate and take reasonable steps to
insure that his associate and other members of his office were informed that the
court had directed that the father not be given a copy of the recording
containing the child’s testimony. 38The Accused admits that the aforesaid
conduct constitutes conduct prejudicial to the administration of justice in
violation of RPC 8.4(a)(4) of the Rules of Professional Conduct.
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Shiffer Matter Case No. 05-170 39......Prior to October 8, 2004, Jerry Shiffer
and Terra Shiffer (hereinafter, collectively “Shiffers”) retained the Accused to
assist them in seeking relief under the United States Bankruptcy Code. 40At the
Accused’s direction, the Accused’s staff prepared drafts of the bankruptcy
petition and schedules for the Shiffers. On January 19, 2005, the Shiffers met
with the Accused’s associate to review the petition and schedules for accuracy.
The Accused’s associate asked if anyone owed them money and whether they
expected any tax refund. The Shiffers denied having any such assets or claims.
41On January 19, 2005, the Shiffers’ signed the Chapter 7 bankruptcy petition,
schedules, statement of financial affairs, and other documents under penalty of
perjury. The Shiffers represented in the bankruptcy petition and other documents
filed with the court that they had no liquidated debts, including tax refunds,
owing to them. 42On February 2, 2005, the Accused filed the Shiffers’ bankruptcy
petition and other documents in the United States Bankruptcy Court for the
District of Oregon, Jerry Shiffer and Terra Shiffer, Debtors, Case No.
0S-60708fra7 (hereinafter, “Bankruptcy Case”). On February 3, 2005, the court
scheduled a 341(a) meeting of creditors concerning the Bankruptcy Case. The
Shiffers and the Accused were required to appear at the 341(a) meeting. 43On
February 10, 2005, the Shiffers filed their 2004 state income tax return seeking
a refund of about $380.00. The Shiffers also filed their 2004 federal income tax
return seeking a refund of $4,001.00. The tax authorities issued the refunds to
the Shiffers. Pursuant to 11 USC §541, the claim for the Shiffers’ tax refunds
and the tax refunds were property of the bankruptcy estate. 44About February 16,
2005, Terra Shiffer telephoned the Accused’s associate. Terra Shiffer disclosed
that the Shiffers anticipated receiving tax refunds for 2004, and asked if the
bankruptcy trustee could take the tax refunds and what could be done to keep
them. The Accused’s associate did not previously know that the Shiffers claimed
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or anticipated receiving tax refunds for 2004. The Accused’s associate told
Terra Shiffer that she would have to ask the Accused. 45.....The Accused told
his associate to tell the Shiffers if they did not appear for the 341(a) meeting
of creditors, the Bankruptcy Case would be dismissed and they could use the
refunds to make their mortgage payments. The Accused also told his associate to
tell the Shiffers they could re-file the bankruptcy petition after they received
and disbursed the tax refunds. The Accused did not advise the Shiffers or tell
his associate to advise the Shiffers to disclose and deliver the tax refunds to
the bankruptcy trustee or the court or to hold and not to disburse the tax
refunds. 46The Shiffers and the Accused did not appear at the 341(a) meeting of
creditors. The Accused and the Shiffers did not notify the bankruptcy trustee or
the court that they did not intend to appear. Thereafter, the bankruptcy trustee
inquired with tax authorities to determine if the Shiffers had filed federal and
state tax returns and received refunds for the 2004 tax year. The tax
authorities notified the bankruptcy trustee that tax returns had been filed, and
of the dates and amounts of refunds issued to the Shiffers. 47On March 16, 2005,
the bankruptcy trustee notified the Accused that he had learned from the tax
authorities that the Shiffers had been issued substantial tax refunds. The
trustee also demanded that those refunds be immediately turned over. On March
17, 2005, the bankruptcy court ordered the Shiffers to turn over the tax
refunds. The Shiffers’ Bankruptcy Case was not dismissed. 48The Accused admits
that the aforesaid conduct constituted vicarious responsibility for another
lawyer’s conduct and conduct prejudicial to the administration of justice in
violation of RPC 5.1 (a) and (b), and RPC 8.4(a)(4) of the Oregon Rules of
Professional Conduct. Trust Account Case Nos. 06-86, 06-87 49Between 2003 and
2005, the Accused maintained a lawyer trust account. The Accused was responsible
for and was the sole signator on the trust account.
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50......In or about October 2003, Colleen Kornelis (hereinafter, “Kornelis”)
retained the Accused’s law firm to represent her interests in a dissolution of
marriage matter. As part of the resolution of the case, the parties’ home was
sold. The proceeds of the sale were deposited in the Accused’s lawyer trust
account with the understanding that funds would be disbursed to pay the parties’
creditors and attorney fees. 51The Accused signed and delivered checks drawn on
his lawyer trust account for disbursement of Kornelis’ funds to Kornelis’
creditors, Kornelis, and the Accused. The Accused failed to prepare and maintain
complete and accurate records of his receipt, deposit and disbursement of
Kornelis’ funds. The Accused disbursed funds in excess of the balance of
Kornelis’ funds from his lawyer trust account and thereby withdrew funds
belonging to or held for the benefit of other clients. 52In or about 2004,
Christy Yullie, now known as Brown, (hereinafter, “Brown”) retained the
Accused’s law firm to represent her interests in a dissolution of marriage
matter. On November 22, 2004, the Accused held $15,700 in his lawyer trust
account for the benefit of Brown. 53On or about November 30, 2004 and December
23, 2004, the Accused signed checks and disbursed Brown’s funds from his lawyer
trust account, $10,000 to the Accused and, by agreement of the parties, $5,000
to opposing counsel, leaving a $700 balance of Brown’s funds on deposit in the
account. 54The Accused failed to prepare and maintain complete and accurate
records of his deposit and disbursement of Brown’s funds from his lawyer trust
account. On or about March 10, 2005, the Accused signed a check and disbursed
$6,700 from his lawyer trust account to himself for payment of attorney fees
concerning the Brown matter. The Accused disbursed approximately $6,000 in
excess of the balance of the amount on deposit for Brown from his lawyer trust
account, and thereby withdrew funds belonging to or held for the benefit of
other clients. 55The Accused admits that the aforesaid conduct constituted
failure to maintain client funds in trust; and failure to prepare and maintain
complete and accurate records of his receipt, deposit and disbursement of client
funds, in violation of DR 9-101(A) and
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DR 9-101 (C)(3) of the Code of Professional Responsibility, and RPC 1.15-1(c)
and RPC 1.15-1(a) of the Rules of Professional Conduct. OTHER ALLEGATIONS 56..On
further factual inquiry, the parties agree that the alleged violations of, RPC
8.4(a)(3) and RPC 8.1(a)(1) in Case No. 05-169, and RPC 1.2(c) and RPC 8.4(a)(3)
in Case No. 05-170 shall, upon approval of this stipulation, be dismissed.
SANCTION 57The Accused and the Bar agree that in fashioning an appropriate
sanction in this case, the Supreme Court considers the ABA Standards for
Imposing Lawyer Sanctions (hereinafter, “Standards”). The Standards require that
the Accused’s conduct be analyzed by considering the following factors: (1) the
ethical duty violated; (2) the attorney’s mental state; (3) the actual or
potential injury; and (4) the existence of aggravating and mitigating
circumstances. a. Duty violated. The Accused violated duties to his clients, the
legal system, and the profession. Standards,§§ 4.1, 6.1, 6.2, 6.3, and 7.0. b.
Mental state. The Accused’s conduct demonstrates that he acted knowingly and
negligently. Negligence is the failure to heed a substantial risk that
circumstances exist or that a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would exercise in the
situation. Knowledge is the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result. Standards, p. 7. The Accused acted knowingly
when he failed to disclose material information to the state court in the
Dissolution Case, and to the bankruptcy court and bankruptcy trustee. The
Accused was negligent in his record keeping practices concerning his receipt,
deposit, withdrawal and disbursement of clients’ funds. He failed to recognize
that his records were not accurate or adequate. He was also negligent in failing
to clearly communicate the court’s restriction concerning the delivery of a copy
of the recording of the child’s testimony in the Floyd matter, and instructions
to an associate when she sought his advice concerning the Shiffers’ bankruptcy
matter.
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c. Injury. In determining the appropriate sanction, consideration is given to
both actual and potential injury. In re Williams, 314 Or 530, 840 P2d 1280
(1992). The Accused caused actual and potential injury to his clients, the court
and the public. The Accused withdrew funds from trust that exceeded the funds on
deposit for certain clients and thereby used other clients’ funds. The Bar does
not, however, contend that clients lost money as a result of the Accused’s
conduct. The Accused reimbursed the funds on notice of the improper withdrawal.
The Accused caused actual injury to the courts and the bankruptcy trustee. The
bankruptcy trustee and the state and bankruptcy courts devoted substantial
additional time to the Williams, Shiffer and Floyd cases because of the
Accused’s and his clients’ conduct, much of which may have been avoided if
complete and accurate information had been communicated in the first instance.
d. Aggravating factors. “Aggravating factors” are considerations that may
increase the degree of discipline to be imposed. Standards, §9.22. The Accused
was admonished in 1997 for violations of DR 9-101(A). He was also reprimanded in
2002 for violation of DR 6-101(B). Standards §9.22(a). There is a pattern of
misconduct and multiple offenses. Standards, §9.22(c), (d). The Accused has
substantial experience in the practice of law having been admitted to practice
in 1992. Standards, §9.22(i). There is also some evidence of dishonest motives.
Standards, §9.22(b). e. Mitigating factors. “Mitigating factors” are
considerations that may decrease the degree of discipline to be imposed.
Standards, §9.32. The Accused cooperated with the Bar in resolving this
proceeding and expresses that he is remorseful. Standards, §9.32(e), (1). Also,
he was sanctioned by the bankruptcy court concerning his conduct in the Shiffer
matter, Case No. 05-170. Standards, §9.22(k). 58.Under all the circumstances
present, the Standards suggest that a period of suspension is the appropriate
sanction. Standards, §§4.12. 6.12, 6.22, 6.32, 7.2, 8.3(b). Oregon case law is
in accord. In re Eakin, 334 Or 238, 48 P3d 147(2002) (60-day suspension for
violations of DR 9-101(A) and DR 9-101 (C)(3); In re Hiller, 298 Or 526, 694 P2d
540 (1985) (120 day suspension for violation of DR 1- 102(A)(3) and related
statute); In re Melmon, 322 Or 380, 908 P2d 822 (1994) (90 day suspension for
violation of DR 1-102(A)(3) and DR 5-105(E)); In re Benson, 417 Or 164, 854 P2d
466 (1993) (6 month suspension for violation of DR 1-102(A)(3), DR 7-l02(A)(5),
DR 7-102(A)(7), and DR 1-103(C)); and In re Claussen, 322 Or 466, 909 P2d 862)
(1 year suspension for violation of DR l-102(A)(3), DR 1-102(A)(4) and DR
7-102(A)(3)). See also, In re MacMurray, 12 DB Rptr 115 (1998) (6 month
suspension for violation of DR 1-102(A)(3), DR 1-102(A)(4), DR 2-106(A), DR
7-102(A)(7) and ORS 9.527(4)).
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59....Consistent with the Standards and Oregon case law, the parties agree that
the Accused shall be suspended for a period of one (1) year. The suspension
shall be effective 3 days after the date this stipulation is approved. 60In
addition, the Accused shall pay to the Bar its reasonable and necessary costs in
the amount of $1,684.55 incurred for the Accused’s deposition. The amount shall
be due immediately and shall be paid in full before the Accused is eligible to
apply for reinstatement as an active member of the Bar, The Bar may, without
further notice to the Accused, apply for and is entitled to entry of judgment
against the Accused for the unpaid balance, plus interest thereon at the legal
rate from the date the Stipulation for Discipline is approved, until paid in
full. 61The Accused acknowledges that reinstatement is not automatic on
expiration of the period of suspension. He is required to comply with the
applicable provisions of Title 8 of the Bar Rules of Procedure. The Accused also
acknowledges that he cannot hold himself out as a member of the Bar or provide
legal services or advice until he is notified that his license to practice has
been reinstated. 62This Stipulation for Discipline has been reviewed by
Disciplinary Counsel of the Oregon State Bar and the disposition of the charges
and sanction approved by the State Professional Responsibility Board. This
stipulation shall be submitted to the Supreme Court for consideration pursuant
to the terms of BR 3.6. DATED this 2nd day of August, 2007. /s/ Brian J.
Sunderland Brian J. Sunderland, OSB No. 92478 OREGON STATE BAR By: /s/ Jane E.
Angus Jane E. Angus, OSB No. 73014 Assistant Disciplinary Counsel