In re the Reciprocal Discipline of Anthony Robert Lopez

• Decision Date: 07 April 2011
• Docket Number: (OSB 10–64; SC S058869).
• Citation: 350 Or. 192,252 P.3d 312
• Parties: In re the Reciprocal DISCIPLINE OF Anthony Robert LOPEZ, Jr., Accused.
• Court: Oregon Supreme Court

350 Or. 192

252 P.3d 312

In re the Reciprocal DISCIPLINE OF Anthony Robert LOPEZ, Jr., Accused.

(OSB 10–64; SC S058869).

Supreme Court of Oregon.

On Review of the Recommendation of the State Professional Responsibility Board Oct. 15, 2010.Decided April 7, 2011.

Allison D. Rhodes, Hinshaw & Culbertson, LLP, Portland, filed a memorandum on behalf of the Accused.Susan Roedl Cournoyer, Assistant Disciplinary Counsel, Tigard, filed a memorandum on behalf of the Oregon State Bar.Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, LINDER, and LANDAU, Justices.^*PER CURIAM.

This is a reciprocal discipline proceeding pursuant to Oregon State Bar Rule of Procedure (BR) 3.5. The accused is licensed to practice law in both California and Oregon.¹ While practicing law in California, he repeatedly violated that state's rules of professional conduct. The accused entered into a stipulation with the California State Bar and, based on that stipulation, the California Supreme Court suspended his license to practice law for one year. The court, however, stayed the suspension on the condition that the accused serve 90 days of the suspension and successfully complete a one-year probation.² Pursuant to BR 3.5(a), the Oregon State Bar notified this court that California had disciplined the accused. The Bar recommended that we impose the same sanction that the California Supreme Court did. For the reasons that follow, we suspend the accused's license to practice law in Oregon for nine months.

In a reciprocal discipline proceeding, the question whether to impose a sanction turns on two issues:

“(1) Was the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard?

“(2) Should the attorney be disciplined by [this] court?”

BR 3.5(c). In this case, the accused concedes that the California disciplinary proceeding provided him with notice and an opportunity to be heard, and he does not dispute that this court should discipline him for his misconduct in California. Rather, he joins in the Bar's recommendation that Oregon's sanction should be coextensive with California's. In light of the accused's concessions, our sole task is to determine the appropriate sanction. We begin by summarizing the conduct that gave rise to this proceeding. We take the facts from the stipulation before the California Supreme Court.

The accused's misconduct spans seven client-related matters and one advertising matter. We summarize each matter:

The first matter. The accused represented a woman and her three minor children in a personal injury action. In the course of that representation, he settled the children's claims without obtaining court approval, as California law requires; he waited for over one year before distributing the proceeds of the settlement; and he deducted his fee and the children's medical expenses without first obtaining court approval, as California law also requires. Finally, the accused charged the woman a fee that exceeded local court guidelines.³ The accused does not dispute that his conduct violated Oregon Rule of Professional Conduct (RPC) 1.15–1(d) (a lawyer must promptly deliver client funds), RPC 1.5 (a lawyer must not collect an illegal fee), and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice).

The second matter. After settling a personal injury claim, the accused received the settlement proceeds and distributed a portion of those proceeds to his client. The accused included a disbursement sheet, accounting for the portion of settlement funds that he had deducted from the gross amount in order to pay certain fees and expenses. The sheet incorrectly represented that some of the client's medical expenses had been reduced, and it also failed to account for two liens that encumbered the settlement proceeds. The accused waited longer than one year to satisfy the two liens. The accused does not dispute that his conduct violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions) and RPC 1.15–1(d) (a lawyer must promptly deliver funds due to a third party).

The third matter. In the course of representing a third client, the accused failed to notify his client of the adverse party's written offers of settlement. Additionally, in that case, although the accused acknowledged the full amount due on a medical lien, he sent the lienholder a check for a quarter of the total amount; the check bore the stamp “[f]ull & [f]inal [s]atisfaction [p]ayment.” The accused then delayed for over one year before fully satisfying that lien. The accused does not dispute that his conduct violated RPC 1.4(a) (a lawyer must keep a client reasonably informed about a matter), RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions), and RPC 1.15–1(d) (a lawyer must promptly deliver funds due to a third party).

The fourth matter. In another personal injury case, the accused settled the claims of three clients for less than their medical bills. Before distributing the settlement funds, the accused asked his clients' medical providers to reduce their bills. When they refused, the accused failed to negotiate further with the medical providers. Twenty-one months later, one of the accused's client's received a collection notice from one of the medical providers. The accused continued to delay after his client received the collection notice, waiting 10 more months before filing an interpleader action to resolve the various claims to the settlement proceeds. The accused does not dispute that his conduct violated RPC 1.1 (a lawyer must provide competent representation to a client).

The fifth and sixth matters. The fifth matter involved one client; the sixth, two clients. In both matters, the accused failed to explain adequately to his non–English–speaking clients how settlement funds would be disbursed and the amounts that each client would receive. The accused does not dispute that, with respect to both matters, he violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions).

The seventh matter. In the seventh matter, the accused settled a personal injury claim on behalf of a client and the client's three minor children. The accused settled two of the children's claims without obtaining court approval. When he received the settlement funds, the accused first deducted a quarter of the proceeds as a fee, contrary to a California law that requires a court order approving such a payment. The accused does not dispute that his conduct violated RPC 1.5 (a lawyer must not collect an illegal fee) and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice).

The eighth matter. The eighth matter involves an advertisement that the accused aired in Nevada. The advertisement, translated from the Spanish, stated, “If you have had an auto accident, by law you have the right to receive at least $15,000 for your case. Call the offices of [the accused.]” The accused does not dispute that his advertisement created a misleading impression concerning the results that he could obtain and that the advertisement accordingly violated RPC 7.1(a)(2) (a lawyer must not make a communication about the lawyer's services that is intended or is reasonably likely to create a false or misleading expectation about the result that the lawyer can achieve).

Based on that misconduct, the California Supreme Court suspended the accused's license to practice law for one year, but it stayed imposition of that suspension subject to the accused's serving 90 days of actual suspension and successfully completing a year-long probation. In notifying this court of discipline in another jurisdiction, the Bar recommended, and the accused agreed, that we impose the same sanction that California had. Given the accused's record of prior discipline, which we discuss below, and the repeated instances of misconduct that gave rise to this proceeding, we asked the Bar and the accused to explain how the proposed sanction would protect Oregon clients and the public.

Both parties responded to our inquiry. The Bar admitted that its recommended sanction might not be sufficient. It suggested, however, that this court's prior practice in reciprocal discipline proceedings has been to impose the same sanction that the other jurisdiction did. The Bar also suggested that completion of the accused's California probation—which included taking a legal ethics examination and completing courses in law practice management—could have a rehabilitative effect that would protect the accused's Oregon clients and the public. For his part, the accused agreed with the Bar's observation that this court follows the sanction imposed in the other jurisdiction and also emphasized the rehabilitative value of his probation.

In reciprocal discipline cases, this court has an independent obligation to determine the sanction merited by a lawyer's violation of this state's professional rules. See In re Page, 326 Or. 572, 577, 955 P.2d 239 (1998) (this court's “choice of a sanction vindicates the judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred,” quoting In re Devers, 317 Or. 261, 265, 855 P.2d 617 (1993)). As a factual matter, this court frequently has found that the sanction that another jurisdiction has imposed is sufficient to vindicate Oregon's interests. We are, however, free to impose a different sanction, if appropriate, and on occasion have done so. See Page, 326 Or. at 574, 955 P.2d 239 (Washington formally reprimanded the accused; this court suspended her for 30 days); Devers, 317 Or. at 263, 855 P.2d 617 (Michigan suspended the accused for four months; this court suspended him for six months).

With the foregoing in mind, we turn to the determination of the...