In Re Complaint as to the Conduct of Obert
282 P.3d 825
Or.2012Background
- Two matters comprise the disciplinary record: Favre (fee/trust issues) and Wilson (competence and post-trial handling).
- Bar charged eight RPC violations across Favre and Wilson; one RPC 8.4(a)(3) charge was not sustained.
- Favre matter: $1,200 fee charged after little or no work; funds not deposited to trust; funds not promptly returned when requested; repeated Bar inquiries ignored.
- Wilson matter: representation of Ian Wilson in Edwards litigation; post-trial motions mishandled; untimely or improper notices of appeal; confusion over jurisdiction.
- Trial panel found seven violations and credibility issues; court reviews de novo and upholds most credibility findings; RPC 8.4(a)(3) not proven.
- Court sanctions: six-month suspension, commencing 60 days from decision; Bar sought harsher discipline but court adopts six months as the sanction
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive fee in Favre matter (RPC 1.5(a)) | Favre charged $1,200 for minimal work | Accused completed tasks and believed fee reasonable | Fee deemed clearly excessive; RPC 1.5(a) violated |
| Misuse of client funds and trust accounts (RPC 1.15-1(a),(c),(d)) | Funds deposited in general account; not deposited to trust; no prompt refund | Fees earned at time of deposit; no trust issue | RPC 1.15-1 violated (a,c,d) |
| Failure to respond to Bar inquiries (RPC 8.1(a)(2)) | Accused knowingly failed to respond timely to Bar requests | Delays due to office staff; responses eventually provided | Knowingly failed to respond; RPC 8.1(a)(2) violated |
| Competent representation in Wilson matter (RPC 1.1) | Post-trial handling showed lack of competence | Mistakes but not incompetence; reasonable given complexity | RPC 1.1 violated; incompetent post-trial actions established |
| Frivolous post-trial positions (RPC 3.1) | Filed untimely JNOV/new-trial motions and late notices of appeal | Attempts to salvage the appeal; law arguments not frivolous | RPC 3.1 violated; frivolous positions acknowledged |
Key Cases Cited
- In re Balocca, 342 Or 279 (Or. 2007) (substantial steps needed to earn fees; no substantial work supports fee)
- In re Peterson, 348 Or 325 (Or. 2010) (trust account rules; earned-on-receipt designation required for nonrefundable fees)
- In re Snyder, 348 Or 307 (Or. 2010) (actual injury to client recognized in disciplinary context)
- Gastineau, 317 Or 545 (Or. 1993) (excessive fee analysis; earned work required before withdrawal from trust)
- Hostetter, 348 Or 574 (Or. 2010) (framework for determining sanction levels and aggravating factors)