In re Skagen
| Decision Date | 19 November 2020 |
| Docket Number | SC S066706 |
| Citation | 367 Or. 236,476 P.3d 942 |
| Parties | IN RE Complaint as to the CONDUCT OF Christopher K. SKAGEN, OSB No. 911020, Respondent. |
| Court | Oregon Supreme Court |
Christopher K. Skagen, Wellington, New Zealand, argued the cause and filed the brief on behalf of respondent.
Susan R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the briefs on behalf of the Oregon State Bar.
This is a reciprocal discipline review proceeding conducted under Oregon State Bar Rule of Procedure (BR) 3.5. Respondent, Christopher K. Skagen, was licensed to practice law in New Zealand and in Oregon during the years relevant to this proceeding. He was struck from New Zealand's Roll of Barristers and Solicitors by the High Court of New Zealand Wellington Registry (High Court) in August 2016 based on misconduct respecting two clients and his significant disciplinary history. That action was the equivalent of disbarment in Oregon. The Oregon State Bar (the Bar) then petitioned the Bar's Disciplinary Board for reciprocal disbarment, alleging that respondent's misconduct in New Zealand constituted multiple violations of the Oregon Rules of Professional Conduct (RPC). A trial panel of the Disciplinary Board was convened, and the matter went to a hearing in January 2019. The trial panel issued an opinion, concluding that respondent should be reciprocally disbarred in Oregon as a result of his misconduct in New Zealand. Respondent now appeals that decision, which we review de novo . ORS 9.536(2) ; BR 10.6. For the reasons set out below, we agree with the trial panel's decision that respondent should now be disbarred in Oregon.
On de novo review, the court finds the following facts. Respondent went to law school in New Zealand but moved to Oregon shortly after graduating. He was admitted to practice law in Oregon in 1991. In the years following, respondent was subject to disciplinary proceedings twice in Oregon. In 2006, he was suspended from the practice of law for one year for failing to maintain unearned fees in trust, failing to account for client funds in his possession, failing to maintain an interest-bearing trust account, engaging in conduct prejudicial to the administration of justice, and failing to cooperate with the Bar's investigation into his conduct.1 In re Skagen , 342 Or. 183, 149 P.3d 1171 (2006).
In 2008, a trial panel in Oregon found that respondent had committed 22 client trust fund violations in 20 different client matters over a one-year period; the violations were based on his failures to deposit and maintain in trust unearned fees paid in advance. The trial panel suspended respondent from the practice of law for 18 months for that misconduct.2 In re Skagen , 22 D.B. Rptr. 292 (2008).
Respondent moved to New Zealand during the pendency of the second Oregon disciplinary proceeding. In 2008, respondent was subject to reciprocal censure in New Zealand based on the 2006 Oregon discipline matter, and the New Zealand Law Society (equivalent to the Bar in the United States) ordered him to pay approximately NZ$8,000 in costs. In 2010, respondent applied to renew his membership in the Law Society. Because he had not paid the cost award, he was required to enter into an agreement to make payments on that obligation in the amount of NZ$150 per month as a condition of his license renewal. He then began practicing law in New Zealand. He made only one of the required monthly payments, but he continued to practice law.
Respondent practiced as a barrister in New Zealand from 2010 to 2011. In February 2011, respondent was retained by client E to represent him in a divorce proceeding. Respondent met with E and advised E that he would charge a lump sum for the work and that E would need to see a solicitor—known as an instructing solicitor—before signing the retainer contract.3 Following that meeting, respondent sent E an invoice and his terms of engagement. The invoice set out the scope of the work to be performed and required an initial payment in the amount of NZ$4,100, which was to be half the total fee ultimately due. E paid that amount, and respondent deposited it in his private account. The terms of engagement specified that the instructing solicitor would be Kevin Smith. When respondent and E met with Smith, however, they learned that Smith had already discussed the matter with E's wife and, therefore, could not act as E's instructing solicitor. Respondent and E dispute what happened next. E averred that respondent did not answer his emails after that meeting, while respondent claimed that he explained to E that he would have to find a new instructing solicitor before respondent could perform any legal services for him and then did not hear from E again. In any case, E hired another firm to represent him in the matter and, in March 2011, E's new lawyer sent respondent a letter advising respondent that E wished to terminate the representation. That letter also demanded that respondent release E's file, provide an itemized bill for costs and work performed, and refund the unearned part of the fee that E had paid him. Respondent initially promised to repay the fee in full but ultimately informed E that he could not do so because of his precarious financial position. He did not refund the unearned fee.
In April 2011, the New Zealand Law Society Lawyers Complaint Service sent respondent a letter reminding him that he had not fulfilled his obligation to make monthly payments on the 2008 costs award as a condition of his license renewal. The letter noted that licenses must be renewed by July 1, and it warned respondent that, under New Zealand's disciplinary rules, the Law Society may take into account a lawyer's failure to pay when determining whether a lawyer is a "fit and proper person" to hold a license. The letter demanded payment of the entire amount due by May 5, 2011. Respondent did not respond.
In a second letter, dated June 23, 2011, the New Zealand Law Society Fitness for Practice Committee informed respondent that it provisionally had concluded that his failure to respond or to pay constituted "reasonable grounds for declining to renew" his license; it invited him to submit a response.
On June 29, 2011, respondent submitted a response claiming not to have received the first letter and asserting that he had failed to pay the amount he owed because he had decided "to place business growth above [his] responsibility to pay [the amount owed] and did not consult the Law Society about that decision." He further explained that he did not believe that nonpayment rendered him unfit as a practitioner and that a finding of unfitness would devastate his prospects for continuing his life as a lawyer. He offered to begin paying NZ$300 per month beginning in July 2011.
The Fitness Committee responded that it would need to be provided with further financial information, such as bank statements, to satisfy itself that respondent would be able to pay NZ$300 monthly. Respondent refused to provide that information.
Meanwhile, in May 2011, respondent was hired by client W to represent him in an ongoing divorce proceeding. Respondent sent W the terms of engagement and an invoice for NZ$6,900, and W paid him that day. Solicitor Smith instructed respondent (that is, provided the referral). Respondent participated in a telephone conference with the court on W's case on June 9, 2011. The court ordered W to provide and serve an affidavit in the case. Respondent sent W an email on June 21 advising the client that he would need more information for an affidavit and that W would need to provide "disclosure to the other side." However, he did not inform W of the date for providing disclosure, nor did he set a time for them to discuss the matter. W provided some information to respondent by email, but he later averred that he did not know what was required of him or when the next hearing would be.
Respondent's license lapsed as of July 1, 2011. The New Zealand Law Society gave respondent until July 19 to pay the amount owed on the cost award and to apply for renewal of the license, which required payment of a fee of NZ$1,426. Respondent submitted a renewal application, but he did not pay any of the fees or costs.4
Respondent did not inform W that his license had lapsed. He did, however, inform Solicitor Smith of that fact in mid-July. Respondent also told Smith that he had prepared the affidavit required by the court and due before a July 21 hearing. Smith refused to permit respondent to file the affidavit. Instead, Smith asked respondent to immediately return all outstanding client files to him, which respondent did. Smith reported to the court and opposing counsel on July 20 that respondent's license had lapsed and that W would need time to obtain alternative counsel. The court conducted a telephone conference on July 21, at the conclusion of which the court ordered W to pay costs of NZ$800 for the failure to timely file the affidavit. The court advised W to seek to recover that cost award from respondent. Thereafter, W spoke to respondent by telephone; respondent told W that he could not pay the NZ$800 or refund even part of the NZ$6,900 advance fee, because he was "broke."
Clients E and W complained to the New Zealand Law Society about respondent's conduct, and the Wellington Branch Standards Committee (Standards Committee) was charged with investigating the complaints and deciding whether to bring formal charges. Respondent was informed of and participated in the investigation. The Standards Committee investigator requested documents relevant to the complaints, including, among other things, various financial...
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People v. Romero
...and several private sanctions, and remarking on "the futility of imposing still another period of suspension"); see also In re Skagen , 367 Or. 236, 476 P.3d 942, 953 (2020) (citing ABA Standard 8.1(b) with approval and disbarring a lawyer for behavior similar to the prior misconduct for wh......