In re Complaint as to the Conduct of Obert

• Decision Date: 19 July 2012
• Docket Number: (OSB 08–134,09–122,09–123,SC S059072).
• Citation: 352 Or. 231,282 P.3d 825
• Parties: In re Complaint as to the CONDUCT OF Mark G. OBERT, Accused.
• Court: Oregon Supreme Court

352 Or. 231

282 P.3d 825

In re Complaint as to the CONDUCT OF Mark G. OBERT, Accused.

(OSB 08–134, 09–122, 09–123; SC S059072).

Supreme Court of Oregon.

Argued and Submitted March 9, 2012.

Decided July 19, 2012.

Jason Thompson, Ferder Casebeer French & Thompson, LLP, Salem, argued the cause and filed the brief for the accused.

Mary Cooper, Assistant Disciplinary Counsel, argued the cause and filed the brief for the Oregon State Bar.

Before BALMER, Chief Justice, and DURHAM, KISTLER, WALTERS, LINDER, and LANDAU, Justices.^*

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar (the Bar) charged Mark G. Obert (the accused) with nine violations of the Oregon Rules of Professional Conduct (RPC) arising out of his representation of two separate clients, Randy Favre and Ian Wilson. On the Favre matter, the Bar alleged violations of RPC 1.5(a) (charging or collecting a clearly excessive fee), RPC 1.15–1(a) (failure to deposit and maintain client funds in a separate trust account), RPC 1.15–1(c) (requiring lawyer to withdraw client money only as fees are earned or expenses incurred), RPC 1.15–1(d) (failure to promptly deliver funds to a client), and RPC 8.1(a)(2) (failure to respond to lawful requests of disciplinary authority). On the Wilson matter, the Bar alleged violations of RPC 1.1 (failure to provide competent representation), RPC 1.4(a) (failure to keep client reasonably informed), RPC 3.1 (taking action on behalf of a client with no nonfrivolous basis), and RPC 8.4(a)(3) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation).

The trial panel found the accused guilty of eight charges. The one charge for which the panel found the accused not guilty was the alleged violation of RPC 8.4(a)(3). The panel imposed a sanction of six months' suspension. The accused timely requested review by this court and challenges the panel's conclusion that he committed eight violations of the RPC. He asserts that he did not commit any ethical violations and that, even if this court concludes otherwise, the appropriate sanction is a public reprimand. The Bar responds that the panel correctly concluded that the accused committed eight violations. It contends, however, that the panel erred in not also concluding that the accused violated RPC 8.4(a)(3). The Bar also argues that the appropriate sanction is one years' suspension.

We review a decision of the trial panel de novo,ORS 9.536(2); BR 10.6. The Bar must establish misconduct by clear and convincing evidence, BR 5.2, which is “evidence establishing that the truth of the facts asserted is highly probable.” In re Cohen, 316 Or. 657, 659, 853 P.2d 286 (1993). For the reasons that follow, we conclude that the Bar met its burden of proof with respect to all but two of the charges and that the appropriate sanction is suspension of the accused from the practice of law for six months.

I. FACTS

As we have noted, the charges in this case arise out of two unrelated matters: the Favre matter and the Wilson matter.

A. Favre Matter

On Friday, January 25, 2008, Oregon resident Randy Favre was arrested on a 24–year–old warrant issued by the State of Florida. He was taken into custody in Marion County. Immediately following the arrest, he signed a nonjudicial waiver of his right to contest his extradition.

On Saturday, January 26, Randy's wife, Karen, spoke with the accused over the phone and hired him to represent her husband in the Oregon extradition proceedings. Her goal was for the accused to obtain Randy's release and to deal with the Florida charges after he was out of custody. At that time, Karen was unaware that her husband had signed a waiver of extradition. The accused told her that she could either pay a flat fee of $1,200 or his hourly rate of $210 per hour. She chose to pay a flat fee and gave the accused her credit card information. She did not sign a fee agreement.

On Sunday evening, January 27, the accused met with Randy Favre at the Marion County Jail. At that point, Randy informed the accused that he had signed a waiver of extradition. The accused told him that, because of the waiver, there was little that he could do. Still, the accused agreed to determine the status of the Florida case and attempt to obtain Randy's release, subject to a voluntary appearance in Florida secured by a release agreement or otherwise. He also informed Randy that he was not licensed to practice law in Florida and that Randy would have to obtain counsel in Florida to address the pending criminal charges.

On Monday morning, January 28, Randy Favre was released from custody because Florida decided not to extradite. The accused later claimed to have left a telephone message that same morning with the Hillsboro County, Florida, Sheriff's Office to discuss the charges pending against Randy. But there is no other evidence that the accused did so; he produced no phone records, and his scant notes on the Favre matter do not mention his phone call.

Randy Favre called the accused and left a message that he had been released. When the accused listened to the message, he believed that, because Randy was out of custody, his representation was complete. Accordingly, on the following day, January 29, the accused processed Karen Favre's credit card for $1,200 and deposited the funds into his business bank account.

The Favres did not believe that the accused's representation was complete. They attempted repeatedly to contact the accused by telephone and in person. The accused did not return their calls. Finally, in April 2008, Karen Favre contested the credit card transaction, asserting that the accused did not provide any legal services, and forwarded a copy of the letter to the accused. The accused did not respond to the letter or notify the credit card company that he disputed her allegations. In May 2008, the credit card company reclaimed $1,200 from the accused's business bank account.

On July 18, 2008, the Favres complained to the Oregon State Bar, asserting that the accused charged them $1,200 without providing any legal services. On July 23, the Bar forwarded a copy of the complaint to the accused and requested that he respond by August 6. The accused did not respond.

On August 12, 2008, the Bar sent, by certified mail return receipt requested, a follow-up letter concerning the Favre complaint. The Bar noted that it had not yet received a response to its July 23 letter and that failure to respond could result in the matter being referred to disciplinary counsel. The accused's secretary, Blair Wolfe, signed for the receipt of the letter. The accused, however, did not respond to it. The matter was then referred to disciplinary counsel.

On September 3, 2008, disciplinary counsel for the Bar sent the accused a letter requesting a response to the allegations in the Favre complaint by September 24. Disciplinary counsel noted that a failure to respond by that date could result in the matter being referred to the Local Professional Responsibility Committee (LPRC) for formal investigation. The accused, however, did not respond to the letter.

On October 7, 2008, disciplinary counsel sent a follow-up letter to the accused. Again, disciplinary counsel reminded the accused that failure to respond could result in the matter being referred to the LPRC. Alma Vasquez, a new secretary whom the accused had recently hired, signed a receipt for that letter. The accused did not respond to it, however.

On October 30, 2008, the matter was referred to the LPRC. An LPRC investigator, David Carlson, called the accused and left a message with his secretary in late November 2008. During the following weeks, the accused and Carlson played “phone tag.”

On December 16, 2008, Carlson met the accused at the Marion County Courthouse, where the accused was beginning a trial. Carlson briefly discussed the Favre matter with the accused and requested that he provide a written response. Later that day, the accused sent a letter to the Bar responding to the Favre matter. The letter did not, however, include any explanation about his failure to respond to the prior Bar inquiries.

On December 17, 2008, Carlson requested additional information from the accused, specifically, bank records concerning the Favre matter and an explanation for his failure to respond to the letters that the Bar had sent him in July, August, September, and October. The accused did not respond.

On January 23, 2009, the LPRC subpoenaed the accused, requiring him to appear on February 12 and to provide additional documentation regarding the Favre matter. Three days later, on January 26, the accused sent the LPRC a letter with the requested bank records along with a brief explanation that his earlier failures to respond were due to unspecified “issues with office staff during the latter part of the summer and fall.” He later explained that his secretary, Wolfe, had failed to forward the Bar's letters to him and that he did not discover them until she had left the office, in late October.

Considering those facts, the trial panel concluded that the accused had violated RPC 1.5(a) (charging or collecting a clearly excessive fee), RPC 1.15–1(a) (failure to deposit and maintain client funds in a separate trust account), RPC 1.15–1(c) (requiring lawyer to withdraw client money only as fees are earned or expenses incurred), RPC 1.15–1(d) (failure to promptly deliver funds to a client), and RPC 8.1(a)(2) (failure to respond to lawful requests of disciplinary authority). The panel found that the Favres were credible, but that the accused was not. Specifically, the panel found that, other than meeting with Randy Favre over the weekend, the accused “did no work on th[e] matter.” The panel disbelieved the accused's assertion that he had telephoned Florida authorities to inquire about the extradition; the panel noted that the accused could produce no phone records to confirm the calls, that he did not mention having made the calls...