In re No.

418 P.3d 2, 363 Or. 42
CourtOregon Supreme Court
DecidedMay 24, 2018
DocketSC S064798
StatusPublished
Cited by6 cases

This text of 418 P.3d 2 (In re No.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re No., 418 P.3d 2, 363 Or. 42 (Or. 2018).

Opinion

PER CURIAM

**43In this lawyer discipline proceeding, the Oregon State Bar charged respondent1 with multiple violations of the Rules of Professional Conduct (RPC) based on her mishandling of client funds, including violating RPC 8.4(a)(3) (conduct involving dishonesty) by knowingly converting client funds. A trial panel of the Disciplinary Board conducted a hearing and determined that respondent had committed all of the charged violations. Although this court has repeatedly imposed disbarment as the presumptive sanction for a lawyer who converts client funds, the trial panel determined that mitigating factors, in particular respondent's mental disabilities, supported imposing a two-year suspension from the practice of law.

The Bar seeks review of the trial panel's sanction determination, urging this court to impose a sanction of disbarment. Respondent, for her part, does not challenge the trial panel's determinations that she committed the charged violations in the ways alleged, but she urges this court to affirm the trial panel's decision that suspension is the appropriate sanction in this case. For the reasons that follow, we affirm the trial panel's determination that the respondent committed all of the charged violations, and we conclude that the appropriate sanction is disbarment.

I. FACTS

Respondent was admitted to practice law in Maryland and Pennsylvania in 2000. She moved to Oregon and was admitted to the Oregon Bar in 2008. From 2011 to 2015, respondent was a solo practitioner, handling many matters for which she represented clients on a contingent-fee basis. Respondent was solely responsible for bookkeeping and managing her client trust account. In the spring of 2014, respondent found herself in financial trouble. In June, her landlord agreed to forbear collecting rent for six months and, in August 2014, respondent stopped regularly paying **44her employees their full wages. The disciplinary charges arise out of respondent's mishandling of client funds between August 2014 and January 2015.

A. The Brown Matter

Respondent represented Brown and negotiated a settlement in which the opposing party agreed to pay Brown $6,000. On August 28, 2014, Brown emailed respondent, emphasizing that she urgently needed her portion of the settlement funds and asking why it was taking so long for the other side to pay. Respondent initially responded, falsely, that the settlement check had not yet been delivered. At the end of the day, however, respondent sent an email to Brown reporting that she had received and "just" deposited the check. In fact, respondent had deposited the $6,000 check into her client trust account the day before those emails, and, by the time that responded reported having deposited Brown's check, most of the funds from that deposit had been used to *4honor three outstanding checks that had been written on respondent's client trust account. The following day, August 29, a fourth check was paid from trust account funds, bringing the balance of the account to $44.31. Also on August 29, respondent sent an email to Brown, claiming that the Bar would not allow her to disburse any of the $6,000 until she received approval from the bank, likely some time the following week.

In mid-September 2014, Brown again contacted respondent to ask when she would receive her portion of the settlement. Respondent claimed, on September 18, that Brown's check had been sent out in the mail days earlier, but she prepared Brown for the possibility that the check might not arrive, offering to "place a stop check on the one mailed and walk into a local branch and deposit" a new check in Brown's account. Ultimately, on September 22, respondent wrote Brown a trust account check for $3,590. By then, respondent had made three new deposits of funds from other sources, bringing her trust account back to a level that was almost, but not quite, sufficient to cover the check that she wrote to Brown. The bank, nevertheless, honored the check and sent respondent a notice that she had overdrawn her trust account by $70.73.

**45Respondent deposited $80 of her own money into the trust account and, when asked to explain the overdraft to the Bar, claimed that she "accidentally wrote the client check for $3590 instead of $3509 as was appropriate." However, calculations that respondent had written on a copy of her fee agreement with Brown listed a total due to Brown of $3,590. Moreover, when respondent provided the Bar with an account statement to support her claim that fees and costs left only $3,509 due to Brown, respondent listed fees for service and filing Brown's case that were $66 more than the actual service and filing fees.

B. The McCarty Matter

On November 3, 2014, respondent deposited into her trust account a $70,000 settlement check that she had received on behalf of McCarty, of which McCarty was to receive $44,000. When respondent deposited the McCarty settlement check in her trust account, it brought the account balance to $70,303. The day of that deposit, respondent disbursed $45,000 of the trust account funds to herself for her own personal and office expenses and paid another creditor $260, immediately reducing the trust account balance to $25,043. By November 14, respondent had also withdrawn an additional $24,443 of the trust account funds to pay two other clients settlement distributions that she had owed them since at least July 2014, as well as other expenses. Thus, respondent spent all but $297 of McCarty's settlement proceeds to pay other clients, her creditors, and herself.

On December 8, 2014, notwithstanding having depleted the trust account of McCarty's settlement funds, respondent wrote a check to McCarty for $44,000 from the trust account. When McCarty deposited the check, it was dishonored for insufficient funds, and McCarty paid a $35 overdraft fee. McCarty immediately called respondent, who falsely claimed that the bank had made an error and said that she would look into it and fix it.

C. The Godier Matter

On December 11, 2014, respondent received and deposited into her client trust account a check for $100,000, paid in settlement to Godier by one of two defendants in a **46case that was going to trial the following month. Of that $100,000, $52,000 was due to Godier after accounting for attorney fees and expenses. The day that respondent deposited Godier's check, however, respondent used trust account funds to pay McCarty $44,030-McCarty's share of the settlement plus reimbursement for the overdraft fee that McCarty had paid. Respondent also made two other withdrawals of trust account funds, which she described in her records as "law offices withdrawals"-one for $35,510, and one for $15,010. The deposit and those withdrawals left a balance of $6,080 in respondent's trust account, and respondent disbursed $6,000 to Godier.

On the first day of Godier's trial against the non-settling codefendant, January 12, 2015, respondent wrote a check to Godier on the trust account for $46,000, the remainder of the settlement funds due to Godier. At the *5

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Bluebook (online)
418 P.3d 2, 363 Or. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-no-or-2018.