Conduct of Eads, In re
| Citation | 303 Or. 111,734 P.2d 340 |
| Parties | In re Complaint As To The CONDUCT OF John W. EADS, Jr., Accused. OSB 84-81, 85-68; SC S32891, OSB 83-96, 83-112; SC S32005. * . Argued and Submitted in OSB 83-96, 83-112; SC S32005 |
| Decision Date | 03 December 1985 |
| Court | Supreme Court of Oregon |
This matter involves two separate lawyer disciplinary proceedings instituted by the Oregon State Bar against the accused, John W. Eads, Jr. The first proceeding was instituted by the Bar in May 1984 (Eads II) 1 and argued in this court on December 3, 1985. At argument on Eads II, the court was informed that additional charges were being investigated involving the accused. Thereafter, when the opinion of the trial panel in the more recent case (Eads III) was filed with the court, the court proposed withholding decision on Eads II until Eads III was argued and submitted. Neither the accused nor the Bar objected. The last proceeding was initiated by the Bar on December 9, 1985, and argued in this court on October 7, 1986.
The accused was charged in three causes of complaint with nine violations of the Code of Professional Responsibility (Disciplinary Rules). The accused admitted, and the trial panel found, that he had committed eight of those violations. The accused did not admit one violation and the trial panel reached no conclusion thereon.
The first cause of complaint arose out of the accused's association with a Mr. and Mrs. James. The Jameses retained the accused to probate the estate of their adopted son. Before probate could occur, the accused was required to close an existing conservatorship and transfer its funds to the probate estate. It took the accused nine months to complete this step. During that nine months, the accused failed to keep appointments with the Jameses and failed to return telephone calls from the bank handling the conservatorship.
After November 1981, when the conservatorship was closed and the assets transferred to the probate estate, only the payment of inheritance, estate and final fiduciary taxes was required to close the probate estate. The accused failed to file the proper tax returns and, in early 1982, the probate estate was assessed penalties and interest. Throughout the remainder of 1982 and the first half of 1983, the accused led the Jameses to believe that he had filed the proper tax returns and was awaiting the tax releases necessary to finish closing the probate estate. In reality, the returns had not been filed and the checks written by the Jameses to pay the taxes remained in a file in the accused's office. Finally, in mid-1983, the Jameses hired a new lawyer.
In answer to the Bar's complaint, the accused admitted, among other things, that only the payment of inheritance, estate and final fiduciary taxes were required to close the probate estate, that he promised his clients that he would file the tax returns immediately, that he failed to do so, that he had told the clients that the tax returns had been filed and that he had not done so.
The Bar charged the accused with four violations of the Code of Professional Responsibility:
DR 1-102(A)(4) provided: 2
DR 6-101(A)(3) provided: 3
DR 7-101(A)(2) provided: 4
DR 7-101(A)(3) provided: 5
The accused admitted, and the trial panel found, that the violations had occurred.
In November 1982, the accused agreed to assist a Washington lawyer, Gregory L. Lutcher, in the registration and collection of a Washington judgment involving a Medford, Oregon, debtor. Mrs. Scheppler, the Washington creditor, forwarded a $150 "retainer" fee to the accused, through Mr. Lutcher.
Between November 1982 and May 1983, the accused made no effort to communicate with either Mrs. Scheppler or Mr. Lutcher. He also neglected to return Mr. Lutcher's telephone calls. In May 1983, Mr. Lutcher sent a letter advising the accused that, if he were unable to assist Mrs. Scheppler, he should notify Mr. Lutcher so that new counsel could be retained. The letter also requested an accounting of the $150. When the accused failed to respond, Mr. Lutcher sent a second letter attaching a copy of a letter of inquiry from Mrs. Scheppler. Mrs. Scheppler asked that the $150 be returned so that she could hire other counsel. Again, the accused failed to respond. In July 1983, Mr. Lutcher sent a final letter giving the accused 10 days to respond. When there was no response, Mr. Lutcher notified the Bar.
The accused was charged with four violations of the Code of Professional Responsibility: DR 6-101(A)(3), supra; DR 7-101(A)(2), supra; and DR 9-102(B)(3) and (B)(4), which provided: 6
The accused admitted, and the trial panel found, that the first three violations had occurred.
The accused does not admit violation of DR 9-102(B)(4); he argues that he is entitled to the $150 payment made by Mrs. Scheppler. He testified that his hourly rate was $75 and that he spent two hours driving to Grants Pass to pick up the file and reviewing the procedure for registration of a foreign judgment. He admits that he never communicated with the judgment debtor or registered the foreign judgment.
On de novo review, we are unable to determine from the record whether the understanding in respect of the fee between the accused and Mrs. Scheppler (through Mr. Lutcher) was a true retainer fee or an advance in contemplation of future services. For a discussion, see Oregon State Bar Ethics Opinion No. 205 (1972), withdrawn by Board of Governors (1972), and No. 251 (1973). In his testimony, the accused acknowledged: "I can't honestly, I can't say that the fee was earned." Nevertheless, if the understanding called for a retainer fee, the failure of the accused to perform sufficient work for the client
would not necessarily result in an ethical violation upon the failure to return the fee. We are unable to find by clear and convincing evidence that the accused violated DR 9-102(B)(4).
The third cause of complaint arose out of the Scheppler matter. When the accused failed to respond to Mr. Lutcher's correspondence, Mr. Lutcher filed a complaint with the Bar. The accused then failed to respond to a letter from the General Counsel's office of the Bar and also a subsequent letter from the Local Professional Responsibility Committee. The accused was charged with violating DR 1-103(C), which, in 1984, at the time the alleged conduct took place involving this charge, provided: 7
"A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of the general counsel, the local professional responsibility committees, the state professional responsibility board, and the board of governors as requested, subject only to the exercise of any applicable right or privilege."
The accused admitted, and the trial panel found, that this violation had occurred.
As a result of the foregoing findings and conclusions, the trial panel recommended a stayed, one-year suspension, subject to compliance by the accused with a structured rehabilitation program, and probation for three years.
The accused was charged in seven causes of complaint with acts of escalating gravity. The complaint alleges acts of neglect, delay and misrepresentation in the probate of the estate of Iris C. Burton. The accused is further charged with failing to cooperate with the Bar's investigation and lying to the Bar about the disposition of a client's funds. Finally, the accused is alleged to have misappropriated $50,000 of a client's money, misrepresented the status of an appeal, commingled client funds with his own and failed to account for the client's money. The accused disputes the charges of failing to turn over accounts to a client, engaging in illegal conduct involving moral turpitude, and engaging in conduct involving misrepresentation.
The first three causes of complaint arose out of the handling of a probate estate by the accused. The personal representative of the estate hired the accused to represent her for the probating of the estate. The probate proceedings were initiated by the accused on February 22, 1981.
The trial panel found that the accused neglected a legal duty in failing to file timely the inventory (even after two notices and a show cause order from the court), failing to file timely a document with the court, failing to deposit incoming funds of the estate for over six months (with a resulting loss of money to the...
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