In re Obert, OSB No. 01-150

CourtSupreme Court of Oregon
Writing for the CourtPER CURIAM.
Citation89 P.3d 1173,336 Or. 640
PartiesIn re Complaint as to the CONDUCT OF Mark G. OBERT, Accused.
Docket NumberOSB No. 01-150,OSB No. 01-170; SC S50320.,OSB No. 01-151
Decision Date06 May 2004

89 P.3d 1173
336 Or.
640

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

(OSB Nos. 01-150, 01-151, 01-170; SC S50320).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 4, 2004.

Decided May 6, 2004.


89 P.3d 1174
Walter J. Todd, Salem, argued the cause for the accused. Mark G. Obert, Salem, filed the brief on his own behalf

Stacy J. Hankin, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar.

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused lawyer, Mark G. Obert, with multiple violations of the Code of Professional Responsibility stemming from his conduct in matters involving three clients: Cooper, Crawford, and Williams. In the Cooper matter, the Bar charged the accused with violations of Disciplinary Rule (DR) 5-105(E) (representing multiple current clients whose interests conflict) and DR 6-101(B) (neglect of legal matter). In the Crawford matter, the Bar also charged the accused with a violation of DR 6-101(B), as well as a violation of DR 1-102(A)(3) (conduct involving misrepresentation) and DR 5-101(A)(1) (continued representation of client whose interests conflict with lawyer's self-interest). Finally, in the Williams matter, the Bar charged the accused with violating DR 9-101(C)(4) (failure to return client property promptly).

A trial panel of the Disciplinary Board found that the Bar had failed to prove two of the three charges in the Crawford matter, viz., DR 1-102(A)(3) and DR 5-101(A)(1). The trial panel concluded, however, that the accused had violated the four remaining disciplinary rules at issue before it. The trial panel imposed a sanction of a suspension from the practice of law for 90 days, but stayed the suspension in favor of a two-year period of probation. The Bar seeks review, contending that an appropriate sanction should entail a suspension of at least six months.

89 P.3d 1175
On de novo review, ORS 9.536(2), we conclude that the accused violated DR 6-101(B), DR 5-105(E), DR 1-102(A)(3), and DR 9-101(C)(4). As a result, we suspend the accused from the practice of law for 30 days

I. FACTS

The accused has been an Oregon lawyer since 1996. He is a sole practitioner. In the matters that follow, the facts have been established by clear and convincing evidence.

A. The Cooper Matter

In September 1999, the Coopers retained the accused to represent them in the adoption of Mrs. Cooper's son from a prior relationship. The child's birth father—Sifuentez—appeared to have abandoned the child. Although the Support Enforcement Division of the Department of Justice recently had provided Mrs. Cooper with several child support payments from Sifuentez, the Coopers had had no contact with him for two years and were unsure of his residence or mailing address.

The Coopers signed their adoption petition in November 1999. The accused filed the petition early in January 2000 and informed the Coopers of that fact shortly thereafter. Between the time of that communication and June 2000, the accused's assistant made several telephone calls to the Driver and Motor Vehicle Services Branch in unsuccessful attempts to locate Sifuentez's residence and mailing address. Aside from those telephone calls, however, the accused did little substantively to advance the Coopers' adoption during that period because, as he conceded at the trial panel hearing, he did not know what to do. Eventually, the accused stopped returning the Coopers' frequent telephone calls. As a result, the Coopers contacted the Bar for help. Thereafter, and until the accused withdrew as their lawyer, the accused's direct communications with the Coopers usually occurred only following instances of direct Bar intervention.

The accused withdrew from the Coopers' case in September 2000 when he discovered that he inadvertently had represented Sifuentez in several unrelated matters at the same time that he had been representing the Coopers. In late July 2000, a trial court had appointed the accused to represent Sifuentez in three criminal matters. Because the accused did not recognize who Sifuentez was from memory and because the accused lacked any means in his office that otherwise could have help him identify conflicts of interest, it was not until mid-September 2000, when Mrs. Cooper discovered that Sifuentez was in jail and called the accused to inform him of that fact, that the accused realized Sifuentez's relationship to the Coopers' adoption. The accused subsequently withdrew as the Coopers' lawyer, refunded their money, including filing fees, and referred them to another lawyer who specialized in adoptions. The Coopers' new lawyer completed the adoption shortly thereafter, and the Coopers then filed a Bar complaint regarding the accused in January 2001.

B. The Crawford Matter

In December 1999, the court appointed the accused to represent Crawford in a proceeding for post-conviction relief. The post-conviction court denied Crawford's petition for relief in a judgment filed June 21, 2000, and Crawford instructed the accused to appeal. Under ORS 138.650, the accused had 30 days from that date in which to file Crawford's notice of appeal. On the thirtieth day, July 21, 2000, the accused mailed the notice, but neglected to send it by either registered or certified mail.1 As a result, Crawford's appeal was not deemed filed until after the court received the notice three days later, on July 24, 2000. On August 23, 2000, the Court of Appeals dismissed Crawford's appeal as untimely.

Before becoming aware of the dismissal, however, the accused, at some point, had informed Crawford that work on his appellate brief was proceeding ahead of schedule. In a letter dated August 23, 2000, Crawford expressed his pleasure with the accused's progress and asked the accused to consider representing him in several other matters.

89 P.3d 1176
Upon learning that Crawford's appeal had been dismissed, the accused failed to relay that information promptly to Crawford. Instead, the accused began legal research to ascertain whether the appeal could be reinstated. Upon concluding that it could not, the accused cut off all contact with Crawford, refusing to return his telephone calls or correspondence. At the trial panel hearing, the accused testified that he was too ashamed and embarrassed at the time to admit to his client that he had failed him. It was not until January 24, 2001, five months after the Court of Appeals had dismissed Crawford's appeal, that the accused finally informed Crawford of that development. Until that time, Crawford thought that his appeal was moving forward. Shortly thereafter, the accused withdrew as Crawford's lawyer, and this Bar complaint followed

C. The Williams Matter

In March 1999, the court appointed the accused to represent Williams on appeal after the court had denied Williams's petition for post-conviction relief. The Court of Appeals subsequently affirmed the post-conviction court's judgment, and this court denied further review.

When the accused first became Williams's lawyer, Williams gave him transcripts, police reports, and briefs relating to Williams's case. In February 2001—after the Court of Appeals had issued its final judgment and the accused had forwarded it to Williams— Williams wrote the accused, asking him to return those documents. At the trial panel hearing, Williams testified that he had needed the documents to pursue a new petition for federal habeas corpus relief.

The accused admitted at the trial panel hearing that he failed to take immediate action on Williams's letter when it arrived and, as a result, had placed it in a pile of other documents and had forgotten about it. In both March and May 2001, Williams left telephone messages to the accused from prison, reiterating Williams's need for his files. The accused admitted at the hearing that, despite those reminders, he continued to forget about the documents until the end of May 2001, when he finally instructed an employee to find the stored files and return them to Williams. In the interim, however, the accused had not returned Williams's messages, and, in June 2001, Williams filed a complaint with the Bar. Shortly thereafter— and over four months after they had been requested—the accused returned Williams's papers to him.

II. DISCUSSION

A. The Cooper and Williams Matters

As a result of the accused's conduct in the Cooper matter, the Bar charged him with violations of DR 6-101(B) and DR 5-105(E). DR 6-101(B) provides:

"A lawyer shall not neglect a legal matter entrusted to the lawyer."

DR 5-105(E) provides:

"Except as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict."

In the Williams matter, the Bar alleged a violation of DR 9-101(C)(4). That disciplinary rule provides, in part:

"A lawyer shall:

"* * * * *

"(4) Promptly pay or deliver to a client as requested by the client the funds, securities or other properties in the possession of the lawyer which the client is entitled to receive."

The accused concedes that he violated DR 6-101(B), DR 5-105(E), and DR 9-101(C)(4) in the course of representing the Coopers and Williams. The accused's concessions are well-taken. We find by clear and convincing evidence that the accused committed the violations noted above.

B. The Crawford Matter

In the Crawford matter, the Bar charged the accused with a separate violation of DR 6-101(B), as well as violations of DR 1-102(A)(3) and DR 5-101(A)(1). As he did in the Cooper matter, the accused acknowledges that he also violated DR 6-101(B) while representing Crawford, and we again agree. We turn now to the Bar's remaining charges.

89 P.3d 1177
1. DR 5-101(A)(1)

DR 5-101(A) provides, in part:

"Except with the consent of the lawyer's client after full disclosure,
"(1) a lawyer shall not accept or continue
...

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    ...reinstatement, he be subject to certain terms of probation. This court recently stated that it did not favor probation. See In re Obert, 336 Or. 640, 656, 89 P.3d 1173 (2004) ("[W]e do not favor probationary terms unless they are the result of a stipulation. When a lawyer's misconduct is su......
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