In re Skagen

• Decision Date: 21 December 2006
• Docket Number: SC S52940.,OSB 03-64.
• Citation: 342 Or. 183,149 P.3d 1171
• Parties: In re Complaint as to the CONDUCT OF Christopher Knute SKAGEN, Accused.
• Court: Oregon Supreme Court

Page 1171

149 P.3d 1171

342 Or. 183

In re Complaint as to the CONDUCT OF Christopher Knute SKAGEN, Accused.

OSB 03-64.

SC S52940.

Supreme Court of Oregon.

Argued and Submitted September 11, 2006.

Decided December 21, 2006.

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Christopher Knute Skagen, Portland, argued the cause and filed the briefs for himself.

Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. With her on the brief was Roscoe C. Nelson, II.

Before DE MUNIZ, Chief Justice, and CARSON, GILLETTE, DURHAM, BALMER, and KISTLER, Justices.^**

PER CURIAM.

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with violating the following Disciplinary Rules (DR) of the Oregon Code of Professional Responsibility:¹ DR 9-101(A) (requiring lawyer to maintain client funds in trust account and to identify account with phrase "Lawyer Trust Account"); DR 9-101(C)(3) (requiring lawyer to maintain complete records of client funds in possession of lawyer and to render appropriate accounts to client regarding funds); DR 9-101(D)(1) (requiring lawyer trust account to be interest-bearing); DR 1-102(A)(3) (prohibiting dishonesty, fraud, deceit, and misrepresentation); DR 2-106(A) (prohibiting illegal or clearly excessive fee); DR 1-102(A)(4) (prohibiting conduct prejudicial to administration of justice); and DR 1-103(C) (requiring lawyer who is subject of disciplinary investigation to cooperate and respond fully and truthfully to inquiries and requests of disciplinary counsel). The Bar charged those violations in four causes of complaint, based on the accused's conduct in four different situations: (1) the accused's handling of and accounting for funds held in his lawyer trust account on behalf of a client, Anderson; (2) the fee that the accused charged Anderson and a bill that he submitted to her; (3) the accused's actions in establishing and maintaining his lawyer trust account; and (4) the accused's conduct during the Bar's investigation of the complaint against him and during the subsequent disciplinary proceeding.

After a four-day hearing, a trial panel of the Disciplinary Board concluded that the accused had violated all the rules as charged, except DR 2-106(A) and one of the two alleged violations of DR 9-101(A). The trial panel suspended the accused from the practice of law for three years and imposed an additional two-year probationary term upon his reinstatement. Pursuant to ORS 9.536(1) and Bar Rules of Procedure (BR) 10.1 and 10.3, the accused sought review of the trial panel's decision in this court.

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, which "means evidence establishing that the truth of the facts asserted is highly probable." In re Cohen, 316 Or. 65'!, 659, 853 P.2d 286 (1993). For the reasons that follow, we conclude that the Bar has proved some of, but not all, the violations charged, and we suspend the accused from the practice of law for one year.

I. FINDINGS OF FACT

We find the following facts by clear and convincing evidence. The accused was admitted to practice in Oregon in 1991. At different times since his admission, the accused maintained offices at locations in Portland, Gresham, and McMinnville. The accused moved to New Zealand in May 2003.²

A. Lawyer Trust Account

On February 25, 2000, the accused opened a trust account with U.S. Bank in Gresham. The accused advised the bank that he wanted to open an interest-bearing lawyer trust account, and the bank labeled the account "CHRISTOPHER SKAGEN BENEF, CLIENT LTAB ACCOUNT, CHRISTPHER SKAGEN ATTORNEY AT LAW TSTEE." The bank's internal code "LTAB" denoted that the account was a lawyer trust account; however, the account name, the accused's checks, and the accused's monthly statements all failed to include the designation "Lawyer Trust Account." Pursuant to DR 9-101(D)(2)(c), the interest on lawyer trust accounts is to be paid to the Oregon Law Foundation (OLF). Due to a bank error, no interest was earned on the account or paid to the OLF until May 2004.

Between February 2000 and April 2004, the accused never reconciled his monthly statements and, therefore, never verified whether the bank was in compliance with his original instructions to set up an interest-bearing account with the name "Lawyer Trust Account." Moreover, when asked at his deposition whether he had maintained a trust account ledger for all client funds kept in his lawyer trust account, the accused reported that he had kept track of his, clients' account balances in his head. When asked whether that approach complied with the relevant disciplinary rule, the accused replied: "I don't know. I don't think it complies entirely. * * * I haven't thought about that." Finally, the accused stated that he had deposited personal funds in his lawyer trust account on a "handful of occasions."

In November 2001, the accused made out three checks to himself in the amounts of $450, $250, and $50, drawing down the balance in his lawyer trust account to $46.13.³ That amount was insufficient to cover funds belonging to the accused's clients, including Anderson, that should have been in the account.

B. Anderson Matter

On November 27, 2000, Anderson retained the accused to represent her in the dissolution of her marriage. Anderson and the accused executed a written fee agreement, which required Anderson to pay a "nonrefundable lump sum, earned when paid fee" of $1,500. The agreement provided that the accused would credit his first ten hours of work to that fee and that additional time would be charged at $150 per hour and billed monthly. The agreement also provided that Anderson would be responsible for "all costs, including expert witness fees, filing fees, subpoena fees etc." and that the accused would send her "pleadings, documents, correspondence, and other information throughout the case." Anderson gave the accused a check for $1,500. The accused did not deposit that check into his lawyer trust account; instead, he deposited it into his business account. Additionally, the accused advised Anderson that the filing fee in her case would be $300 and asked Anderson to give him a separate check for that amount. Anderson gave the accused a second check in the amount of $300, which he deposited into his lawyer trust account. On November 28, 2000, the accused filed a Petition for Dissolution of Marriage in Yamhill County Circuit Court and drew a check against his lawyer trust account in the amount of $225 to pay the filing fee.

Subsequently, the accused performed legal services for Anderson in the dissolution matter. During his representation of Anderson, the accused did not keep regular time records of services that he performed for her, did not provide monthly billings as provided in the fee agreement, and never prepared any billing statements or other accountings concerning her funds in, the trust account.

On September 20, 2001, Anderson wrote a letter to the accused in which she expressed her dissatisfaction with his representation and terminated his services. bn that letter, Anderson requested an itemized statement detailing the services rendered to her :337 the accused, a copy of her file, and a refund of the unearned portion of the $1,503 retainer. In response to that letter, on September 5, 2001, the accused prepared a billing statement concerning Anderson's dissolution matter. In that billing statement, the accused represented that he had devoted 18.0 hours to Anderson's dissolution matter between November 27, 2000 and September 14, 2301, and that, after the $1,503 retainer was deducted from the total amount due, Anderson owed an outstanding balance of $1,335. Because the items in that billing are central to certain of the Bar's allegations, we discuss a few of them in further detail.

The accused billed Anderson 3.3 hours on November 28, 2300, for preparing and filing the petition for dissolution and other related documents. Additionally, he billed 1.8 hours on November 30, 2003, to "Finalize Initial Dissolution Documents." On that date, the accused filed an amended petition that was identical to the original petition filed on November 28, except that the amended petition included the date of the Andersons' marriage and husband's Social Security Number—information that the accused had omitted from the original petition.

The accused billed Anderson for a "Telephone call to [husband] re inheritance" on January 10, 2001, and for a "Conference with [husband] re Uniform Affidavit" on April 13, 2001. At his deposition, the accused stated that he could not recall having any conversations with husband. The accused further testified that the January billing entry must have been wrong, because the telephone call must have been to either husband's lawyer (Bierly) or Anderson, and that the April billing entry incorrectly referred to husband instead of some other person. Nothing in the record, other than the billing statement itself, indicates that the accused had any communication with Anderson, Bierly, or any other person connected to Anderson's case on either of those dates. Indeed, the testimony of several witnesses, including the accused, contradicted those time entries.⁴

The accused also billed Anderson for a conference with husband's attorney's office on July 12, 2001. That billing entry states: "JO: Telephone conference with Bierly office re filing pleadings; receive letter from Bierly's office re out of Town until 7/23/01." The Bar asserts that that entry was for time spent on Anderson's case by the accused's legal assistant, whose initials were "JO." Bierly testified that his office had contact with the accused's assistant on July 12, 2001, but not with the accused. The accused testified that he recalled doing work on Anderson's case on that date and that he thought that...