In re Cohen

• Decision Date: 10 August 2000
• Citation: 8 P.3d 953,330 Or. 489
• Parties: In re Complaint as to the CONDUCT OF Richard D. COHEN, Accused.
• Court: Oregon Supreme Court

8 P.3d 953

330 Or. 489

In re Complaint as to the CONDUCT OF Richard D. COHEN, Accused.

(OSB 95-83, 96-129; SC S39908)

Supreme Court of Oregon, En Banc.

Argued and Submitted November 4, 1999.

Decided August 10, 2000.

Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the petition and reply brief for the Oregon State Bar. Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, filed a supplemental brief for the Oregon State Bar.

Robert A. Shlachter, Portland, argued the cause for the accused. Richard D. Cohen, Portland, filed the answering brief pro se. Robert A. Shlachter and Scott Shorr, of Stoll, Stoll, Berne, Lokting & Shlachter, P.C., filed a joint supplemental brief.

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar (the Bar) seeks review of a decision of a trial panel of the Disciplinary Board that reprimanded lawyer Richard D. Cohen (the accused) for violating Code of Professional Responsibility Disciplinary Rule (DR) 6-101(B)¹ (neglect of a legal matter) and also continued his probation for an earlier violation of that same rule. The Bar seeks imposition of a 60-day suspension for the second violation, to be served consecutively with a previously stayed 120-day suspension for the first violation. The accused admits that he violated DR 6-101(B) in the second matter, but contends that the trial panel reached the appropriate disposition in both matters. For the reasons that follow, we reprimand the accused and terminate his probation.

FACTS

This proceeding involves two instances of neglect by the accused, the first of which resulted in a stipulation for discipline in 1995 (case 95-83). In that case, the accused neglected the legal matter of a client named Richardson, who had hired the accused in 1992 to pursue a claim against the state for damages caused by a Dammasch State Hospital patient. The accused stipulated that, between November 1994 and March 1995, he had violated DR 6-101(B) by failing to communicate with Richardson and failing to respond to her attempts to communicate with him, failing to pursue the case actively, failing to advise Richardson concerning potential dismissal of the case and his actions on it, and failing to file certain paperwork in the case.

In October 1995, the accused and the Bar entered into a stipulation for discipline, which this court accepted by order in December 1995, nunc pro tunc November 1995. In that stipulation, the accused admitted that his conduct, as alleged in the Bar's complaint, had violated DR 6-101(B). He further agreed to accept a 180-day suspension, 120 days of which were stayed, subject to a two-year probationary period beginning on the effective date of the stipulation. The stipulation set out a number of conditions of probation, including that the accused comply with all provisions of the Code of Professional Responsibility and that he regularly certify to the Bar that he had brought all his cases to current status. The stipulation also required mental health counseling and supervision of the accused by another lawyer, as probationary conditions, and provided that the accused would not be eligible for reinstatement following his 60-day suspension until a mental health professional confirmed that he adequately was able to perform his duties as a lawyer. Finally, the stipulation provided that, if the accused failed to comply with the conditions of his probation, then the Bar may seek to revoke his probation under Bar Rule of Procedure (BR) 6.2(d), set out post, and impose the stayed 120-day suspension.

The second instance of neglect, which involved a client named Poch, overlapped to some extent with the period of time during which the accused was negotiating the stipulation for discipline in case 95-83. The accused began representing Poch, the wife in a marriage dissolution action, in July 1994. Between August 1994 and April 1995, the accused and husband's lawyer, White, negotiated the sale of the Pochs' real property to one of the Pochs' daughters. While the sale was pending, the accused and White filed a stipulated judgment (pending final judgment) with the court. The sale closed, the proceeds were delivered to White, and White deposited them into her trust account. The accused did not confirm White's receipt or deposit of the proceeds.

In May 1995, the court dismissed the Pochs' dissolution action, which could be reinstated only by court order. The accused received notice of the dismissal, but he did not notify Poch and took no action to reinstate the case. Also, between May 1995 and December 1995, the accused spoke to Poch only twice, at her initiation.

In December 1995, as noted, this court accepted the stipulation for discipline in case 95-83. The accused began serving his suspension in late December 1995. At about the same time, he sent a draft of a final stipulated judgment in the Poch case to White, together with a letter explaining that he was not then working as a lawyer and that his supervising lawyer, Chally, would be acting in Poch's behalf. The accused did not send a copy of that letter to Poch.

In March 1996, the accused was reinstated, after his mental health therapist, Dr. Jones, confirmed that he could function as a lawyer under the terms and conditions of his probation in case 95-83. In April 1996, the accused met with Poch. The accused told Poch that action was needed on her case, but he did not tell her that the case had been dismissed. The accused took no action to reinstate Poch's case until mid-July 1996, and he returned only a few telephone calls from Poch.

In July 1996, Poch filed a complaint with the Bar. On the day that the Bar drafted a letter notifying the accused of Poch's complaint, the accused wrote to White, apologizing for the delay and lack of communication, and recommending a final resolution of the case.² The accused copied Poch on that letter and advised Poch that Chally had agreed to take over the case.

In February 1997, the Bar filed a formal complaint against the accused, alleging a violation of DR 6-101(B) in the Poch matter, spanning the time period between May 1995 and March 1996 (case 96-129). In April 1997, the Bar petitioned to revoke the accused's probation in case 95-83. The two cases then were consolidated for proceedings before a trial panel.

A trial panel hearing was held in July 1997. The parties submitted stipulated facts that, unlike the allegations in the Bar's complaint in case 96-129, reflected that the accused had neglected the Poch case between May 1995 and mid-July 1996, rather than between May 1995 and March 1996. The accused admitted in the stipulated facts that his conduct in case 96-129 had violated DR 6-101(B). He further admitted to the trial panel that, by virtue of that conduct, he also had violated his probation in case 95-83, by failing to adhere to the Code of Professional Responsibility and by failing to stay current on a case.

The accused also presented testimony of 11 witnesses, in addition to himself, as well as testimony by stipulation of nine other witnesses. In general, that testimony summarized a number of personal problems and mental depression that the accused had suffered in early 1994 through 1995, and the active steps that he had taken, beginning in mid-1996, to improve his mental health andhis office practices. Such steps included cooperation with Chally and a second supervising lawyer, McCollom; self-initiated, regular contact with a practice management advisor at the Professional Liability Fund (PLF); incorporation of office improvements suggested by those individuals and others; and regular therapy sessions with Jones. Almost without exception, the witnesses testified that both the accused's mental health and his office practices had improved remarkably, particularly within the six months preceding the hearing. All witnesses who were so asked testified that the accused was a talented trial lawyer who was fit to practice law. The Bar presented no witnesses, but the accused stipulated that some professionals and clients had found his pattern of responsiveness "less than satisfactory."

In November 1998, more than a year after the hearing, the trial panel concluded that the appropriate sanction in case 96-129 was a public reprimand. The trial panel further concluded that the probation in case 95-83 would not be revoked but, rather, that its terms and conditions would continue in full force and effect. The trial panel declined to impose the previously stayed 120-day period of suspension.

The Bar petitioned for review in this court, BR 10.1, contending that, in case 96-129, the accused should be suspended for 60 days and that, in case 95-83, the accused's probation should be revoked and the previously stayed 120-day suspension now should be imposed. The accused responds that, as to the disposition of both cases, this court should reach the same conclusion as the trial panel. We review de novo. ORS 9.536(3); BR 10.6.

SANCTION IN CASE 96-129

We begin with case 96-129, which involved the Poch matter. In determining the appropriate sanction for the accused's misconduct, we look to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and to this court's case law. In re Meyer (II), 328 Or. 220, 226, 970 P.2d 647 (1999). We first consider three factors: (1) the ethical duty violated by the accused's misconduct; (2) the accused's mental state at the time of the misconduct; and (3) the actual or potential injury caused by the misconduct. ABA Standard 3.0; Meyer (II), 328 Or. at 226, 970 P.2d 647. We then make an initial determination of the appropriate sanction, based upon those factors. Meyer (II), 328 Or. at 226, 970 P.2d 647. Next, we consider the existence of any aggravating or mitigating factors, and the extent to which the sanction should be adjusted accordingly. ABA Standard 3.0; Meyer (II), 328 Or. at 226, 970 P.2d 647. Finally, in...