In re Ramirez
| Citation | 408 P.3d 1065,362 Or. 370 |
| Decision Date | 19 January 2018 |
| Docket Number | SC S064697 |
| Parties | IN RE Complaint as to the CONDUCT OF Samuel A. RAMIREZ, OSB Bar No. 910883, Accused. |
| Court | Supreme Court of Oregon |
Samuel A. Ramirez filed the brief on his own behalf.
Susan Roedl Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief on behalf of the Oregon State Bar.
Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, and Flynn, and Duncan, Justices.*
In this lawyer disciplinary proceeding, the Oregon State Bar (the Bar) charged Samuel A. Ramirez (the accused) with violating several Oregon Rules of Professional Conduct (RPC). A trial panel concluded that the accused had failed to provide competent representation, neglected a legal matter, represented a client when the representation involved a personal conflict of interest, and improperly settled a potential malpractice claim with an unrepresented party, in violation of RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.7 (a)(2) and RPC 1.7(b) (), and RPC 1.8(h) (), respectively. Based on those violations and an assessment of aggravating and mitigating factors, the trial panel suspended the accused from the practice of law for one year. The accused petitioned this court for review of the trial panel's decision. On review, the accused concedes that he committed the violations found by the trial panel, but asserts that the trial panel erred in (1) rejecting his argument that the disciplinary proceeding was barred by the statute of limitations set out in ORS 12.110, and (2) assessing the aggravating and mitigating factors and imposing the one-year suspension. Reviewing de novo , we conclude that the disciplinary proceeding was not barred by the statute of limitations, the accused violated the disciplinary rules as the trial panel found, and the appropriate sanction is a one-year suspension.
Although the accused concedes that he violated the Rules of Professional Conduct as the trial panel found, he disputes the sanction. Because the appropriate sanction depends on the nature of the violations, as well as the accused's conduct during the disciplinary proceedings, we begin with a statement of the historical and procedural facts. We take the facts primarily from the trial panel's findings, which the accused does not dispute.
The accused was admitted to the Oregon State Bar in 1991. His primary practice areas have been criminal defense and family law. This disciplinary proceeding was based on the accused's representation of a client, Carson Culp. The accused obtained a money judgment for Culp, but then, over a period of years, failed to take the actions necessary to collect the unsatisfied judgment, and, when Culp complained about the accused's representation, the accused entered into an agreement with Culp to settle Culp's potential malpractice claims, without advising Culp of the desirability of seeking independent counsel.
In 2006, the accused filed a civil action on behalf of Culp against Christine Dunn (Christine) and her mother, Elizabeth Dunn (Elizabeth), claiming that Culp had an interest in real property owned by the Dunns in Klamath County (the "Split Rail property").
The claim was based on improvements to the property for which Culp had paid.
In April 2008, the accused obtained a general judgment in favor of Culp against Christine, which included a money award of $97,552.92 and created a judgment lien. Pursuant to ORS 18.150(2)(a), the lien attached to all real property the Dunns owned in Klamath County, including the Split Rail property and a second property, the "Ranger Court property." Culp instructed the accused to collect the money award as soon as possible.
Christine appealed the judgment, and the accused represented Culp in an appellate settlement conference in August 2008. At the conference, Culp agreed to a settlement, the terms of which required Christine and Elizabeth to sign a promissory note to Culp for $80,000, payable on September 1, 2009, and to secure the note with a trust deed on the Ranger Court property.
Notably, the Ranger Court property was already encumbered. In 2006, while Culp's action concerning the Split Rail property was pending, the Dunns borrowed $65,000 from Washington Mutual Bank and secured the loan with a trust deed on the Ranger Court property. Christine executed the promissory note for the loan on behalf of herself and Elizabeth, using a power of attorney.
In April 2009, eight months after the appellate settlement conference, Christine's lawyer, David Brown (Brown), sent the accused a proposed form of mutual release and settlement agreement, a proposed note, and a proposed trust deed on the Ranger Court property for the accused and Culp to review. The accused did not respond to Brown or forward the documents to Culp. When Culp inquired about the documents, the accused told him that Brown had not provided them yet.
Christine did not pay the $80,000 due on September 1, 2009. Prompted by Culp, the accused wrote to Brown, asking why Christine had not executed the trust deed on the Ranger Court property. Brown replied that he was waiting for the accused to have Culp complete and return the settlement documents.
Thereafter, the accused returned the settlement documents to Brown, and Christine signed the promissory note and executed the trust deed on the Ranger Court property. Elizabeth did not sign the trust deed, and Christine did not sign it on Elizabeth's behalf. The accused recorded the trust deed in June 2010.
The accused did not inform Culp of the problems with a foreclosure that could arise because of Washington Mutual's superior interest in the Ranger Court property or because of Christine's failure to obtain Elizabeth's signature on the trust deed. Nor did he explore any other options for collecting Culp's money award.
In August 2010, the accused initiated a nonjudicial foreclosure on Culp's trust deed on the Ranger Court property; he recorded a notice of default and scheduled a sale for January 2011. Although the accused had never successfully completed a nonjudicial foreclosure, he did not review any Continuing Legal Education (CLE) materials or take any other steps to familiarize himself with the requirements for a foreclosure. He did not review the title history of the Ranger Court property or calculate the amount owed on the property. The accused failed to take the steps required by statute to complete the foreclosure; among other things, he failed to publish notice of the sale. When Culp contacted the accused to learn the outcome of the sale, the accused told him that he had forgotten to file required paperwork and the sale had not occurred. Although Culp had already paid the accused $1,500 to conduct the sale, the accused offered to conduct another sale for an additional $1,600. Culp agreed and paid the accused.
The accused initiated the second nonjudicial foreclosure in January 2011 and scheduled a sale for May 2011. He believed he had taken the steps required by statute, but when no one appeared for the sale, he realized that, once again, he had failed to publish notice of the sale.
Although the accused's attempts to foreclose on the Ranger Court property were unsuccessful, he wrote a letter to Christine in June 2011 asserting that Culp owned the property and requiring that Christine surrender the property and that she and Elizabeth sign quitclaim deeds to Culp. At the disciplinary trial, one of the Bar's witnesses testified that the accused's demands of the Dunns exposed Culp to potential civil liability for making improper threats in connection with a foreclosure.
In November 2011, Culp complained to the accused about his failure to collect on the $80,000 promissory note, demanded a refund, and asserted that he had a legal malpractice claim against the accused. After reviewing a CLE publication on torts to evaluate whether Culp had a claim against him, the accused prepared a "Termination and Settlement Agreement" and attached an "Acknowledgement of Payment," which he presented to Culp. The agreement states that the accused earned the $3,100 Culp had paid him, but that the accused agreed to pay Culp $3,100 "to settle any and all disputes arising from his representation." The accused did not explain what Culp's potential malpractice claims might be or that Culp might be entitled to more than a $3,100 refund, and he did not advise Culp of the desirability of seeking independent legal counsel to review the settlement agreement. Culp did not sign the "Termination and Settlement Agreement," but he did sign the attached "Acknowledgement of Payment," which states that he received $3,100 as "payment in full pursuant to the settlement agreement."
After Culp signed the Acknowledgement of Payment, the accused continued to represent Culp in the collection matter, on a contingent fee basis. In January 2012, the accused made a third attempt to foreclose on the Ranger Court property, with a sale scheduled approximately five months later. Before the sale, the accused received notice that Washington Mutual was foreclosing on its trust deed on the Ranger Court property because the Dunns had defaulted on their loan. The accused gave the notice to Culp, but took no actions to protect Culp's interest; he told Culp that Culp would not receive anything and his interest in the property would be extinguished.
Before Washington Mutual's foreclosure sale of the Ranger Court property occurred, Christine filed a Chapter 7 bankruptcy petition and exercised her homestead exemption on the Split Rail property. The accused received notice of the petition, and he informed Culp that he did not practice bankruptcy law and that Culp would need to retain another...
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In re Bertoni, OSB 1516, 1559, 1617
...the extent possible in what is necessarily a case-specific inquiry, we are treating similarly situated cases the same. See In re Ramirez , 362 Or. 370, 380, 408 P.3d 1065 (2018).In this case, respondent violated duties that he owed his clients. He violated the duty to preserve and properly ......