*1 639 Argued February and submitted suspended thirty days accused for March In re: Complaint as to the Conduct of: ROBERTSON,
DONALD K.
Accused. (No. 27324) 79-7, SC O’Connell, Kevin P. Portland, argued the cause for the Accused. With him on O’Connell, the brief was & Goyak Ball, P.C., Portland. Portland, argued the cause Harrington,
Francis Bar. Oregon State
PER CURIAM.
PER CURIAM. This proceeding by is a disciplinary an Bar with both charging improper State conflict of and an impropriety” interest "appearance land the seller handling of a sale transaction in which was either a client or purchaser, former client who fees for also a client. paid conflict of The answer of the Accused denied both the interest and appearance impropriety.
The Board guilty Trial found the Accused not of the first cause of an complaint, which alleged interest, conflict of but of the second cause of the guilty complaint, alleged which an "appearance impropriety,” a public recommended reprimand. Disciplinary The Board Review concurred in and conclusions findings those and in that recommendation. in his to this brief court which
he "seeks review” those findings, conclusions recom- mendations, concedes that if it had been established by the facts that he had in a real both sides estate *3 transaction there would have an conflict of improper been denies, He however, interest. that such a conflict of interest proved. was He also contends that the sole basis for the finding of impropriety or an of appearance impropriety "rests with the of prior in 1974 the com- plainants by the Accused” which "alone does not constitute a that, basis for an in disciplining attorney,” any and event "under the case, facts of this there is no reasonable basis which it upon can said that had a right the complainants rely to a upon belief that the representing also their interest in the transaction.”
Canon 9 provides: lawyer "A profes- should avoid the of appearance even impropriety.” sional
DR 9-101 provides: "Avoiding the Appearance Impropriety. Even of "(A) A lawyer accept private employment shall not in judicial a matter a upon the merits of he has acted in which capacity.
642
"(B) lawyer private employment A shall not accept responsibility a matter in which he had substantial while public employee. he was a
"(C) imply A shall not that he is able state or improperly upon grounds any or irrelevant influence tribunal, legislative body, public or official.” Ainsworth, 479, 493, P2d re 289 614 1127
In In Or (1980), we DR 9-101 follows: construed disciplinary
"In of rule is opinion, our the effect general more terms of 9 and to limit its define the application Canon the in DR specific three situations described (B) 9-101(A), (C), applicable to the none of which are Indeed, validity facts of this case. the of Canon 9 the might of in a complaint disciplinary proceeding basis a v. subject question. Megdal well be See Board otherwise (1980).” Examiners, P2d 605 273 Dental of Houchin, 433, 438, Or 622 P2d See also re (1981). It DR be construed or may be that 9-101 should gives an which amended to extend to conduct of terms of of the other of violation one appearance rules, is but no such contention before specific disciplinary in this Because the of charge appearance us case. the three upon in this case is not based one of impropriety (B) 9-101(A), (C), we situations described DR specific charge not second guilty find the Accused follow, however, the complaint It does not complaint. both the the Accused must be dismissed because against Review Board found the Disciplinary Trial Board and of that rule. only of violation guilty Accused to be Disciplinary Review The Trial Board guilty found that Accused was not of conflict Board however, not be finding, interest. We are bound the record. Based upon we decide facts based cause find that there was an our review the record we Accused was interest conflict *4 5-105, as follows: violating of DR which provides guilty if Employment or the "Refusing Accept Continue May Impair Independent the Interest Another Client of Judgment Lawyer. of the Professional "(A) if employment proffered A shall decline judgment his in independent professional the exercise adversely likely of a client will or is affected behalf to be by acceptance proffered employment, except the of the 5-105(C). permitted the extent under DR
"(C) In the [*] situations covered DR by 5-105(A) (B), it is lawyer may represent multiple clients if obvious that adequately the of each and if can interest representation consents the full each after disclosure of on the possible representation the effect of such exercise of independent professional judgment behalf of each.” on application provisions DR 5-105 de- course, pends, the facts particular case. According to the in "Statement of Facts” the brief of the the facts of this case are as follows: K. practice
"Donald Robertson has been licensed law practiced in since 1958. He has east in Multnomah County and at the in question practicing time in Rockwood section of east Portland. The Accused was famil- Kuhlman, with complainants, iar Al and Rose for a June, 1974, years. number of in preparation agreement
the Kuhlmans concerning option of an property questioned involved in the trans- (Tr. 71). option action. That expired. was not exercised and Also, June, 1974, the Accused represented the Kuhl- by writing County mans County, Assessor Elko (Tr. Nevada, 307). concerning proposed 68, assessment. 1974, Both items of work occurred in June of appears only to be the representation performed by the for the complainants. 1976, August
"In property owned the Kuhl- mans was sold on a subordinated unrecorded contract to a client of the Accused who was introduced Accused to (Tr. 319). 235, 236, 318, However, the Kuhlmans. between representation the August, in June of 1974 and the transaction of the Kuhlmans had into an entered exclusive listing agreement subject property, i.e. the Burnside, at County, located 197th and Multnomah (Tr. 76). Furthermore, J.J. Walker Real Company. Estate during that interim period, the Kuhlmans obtained a $25,000 subject loan for which used (Tr. 123). collateral. 122 and The Accused was not con- review, by the complainants prepare sulted to either or Although during discuss either transaction. the hiatus June, and August, between would the Kuhlmans occasionally neighborhood, see Accused in the no further was involved. *5 K. Robert- of Donald Yaeger had been a client "Richard 309). (Tr. 233, 234, was aware Robertson
son since 1974. and subject property the wished to sell the Kuhlmans that 316). (Tr. The Accused Yaeger prospect. of that informed subsequently to see it and property Yaeger took 318-319). (Tr. 187, 235, The him to Kuhlmans. introduced corporation his formed Yaeger and Accused subject developing the and purpose acquiring for the 7,1976, through the culmination August from property, 315). (Tr. played is the role disputed A fact the transaction. parties. negotiations in the between by the Accused 322-323). (Tr. 237, 238, 239, 240, great The 89, 192, billing evidence, supported by travel weight of extremely busy at indicating the Accused was records (Tr. 311-315), little in- indicate matters time with other agreement between negotiating volvement Kuhlmans and client, Yaeger and Konar-West. his re- however, agreement and did, draft the sales Accused The Kuhl- August 1976. on or about lated documents representing Accused was advised that the mans had been would Yeager/Konar-West, purchaser, 283-284). (Tr. months fol- Several bill. the Accused’s pay the Ac- August, 1976 real estate lowing the arose question Kuhlmans when did cused due J.J. Wal- a real estate commission as to whether ker subject prop- sale of the Company on the Real Estate erty.” or on behalf was filed note that no brief
We disagreed Bar which either State of any included statement Facts” or which "Statement however, record, we reviewing Upon facts. additional view, are which, in our additional facts there were find that the questions court of by this to a determination material in this case. for decision presented Kuhlman, and client, all, the Mr. Lawrence First of in the "late he met testified wife Portland; in east shop a repair he operated when 1960’s” he friends; on some occasions became they then boat, on his automobile for work charged he Accused did he work occasions but on other occasions for; that on some charge did not him, and that him and not bill something do would forth.” back and "they swapped Mr. Kuhlman also testified that those during years sell, owned some property that he was trying begin- ning 70s,” [the] "in about early in all previous sell the attempts the Accused was "involved” in either drawing up papers or reviewing someone else’s pa- pers. instances Specific legal work Accused for Mr. Kuhlman relating matters, to other according to his recollection, check, included collecting a bad the purchase of some eastern Oregon, involving a transaction Nevada, property in and some with a "dealings” construc- tion company.
Mr. Kuhlman also testified that when a listing for *6 sale of property expired he told the Accused that "it was available” and that the Accused then said that he had a client interested; who might be that "he would get me,” back did, which he and that the Accused then said that he would "handle it” and that "there would no commission and legal fees.”
According Kuhlman, to Mr. the Accused then pre- sented to him and his wife signature for the legal docu- ments for sale of that property to a that corporation; these documents included a contract with a provision for second mortgage in favor of the Kuhlmans which was not to be recorded years, for two and a deed to enable the purchasers to get a loan, construction which he thought would be held in escrow.
Mr. Kuhlman and Mrs. Kuhlman testified that Accused did not tell them that acting was not as their attorney, but was acting solely attorney purchaser, or that they get should independent advice from another attorney, and that understood they that the Ac- cused acting friend, not only as their but also as their in that attorney rather than solely attorney for purchaser. later,
Some time Kuhlman, according to Mr. he received a letter from an attorney the realtor representing with whom he had previously listed the demand- property, ing payment commission, of a and sent that letter to the Accused as his attorney, that the Accused said that he would "take care of that.” also about a later year
Mr. Kuhlman testified that that been recorded "in mortgage he found out another had (his) interests,” to his contrary previous front of which was and later understanding. attorney He then went to another State Bar. sent a letter of complaint Much of this was denied testimony credibility its is in In addition to their testi- dispute. however, repre- that mony, attorneys they two testified previous- sented the realtor with whom the Kuhlmans had sale, for after the comple- listed their ly property sale of that to the clients of the Accused property tion demanding a com- they wrote the letter to the Kuhlmans realtor; then they mission the sale on behalf of that that for Accused; from the received a call and a letter telephone that for Mr. the letter stated "I have been the have, years, for 15 or 16 and Mrs. Kuhlman about agree- time, drawn number during period any others”; this providing ments sale of a client of had to the attention of "called mine”; and Mrs. my "because of Mr. familiar years, completely Kuhlman over the I was (which and that "under property,” circumstances letter) it in further in that would were described detail client is not meritorious.” your claim appear That letter was offered evidence in these proceedings, to in the "Statement Facts” but was not referred Accused. attempted attorneys
These also testified *7 client, their on behalf of to the matter further pursue realtor, so to take the doing attempted in the course of Accused, conversa- telephone that in a but deposition not allow it that he would tion stated was represented to 'he his be taken because deposition Kuhlmans.” on cross-examination questioned
The Accused admitted realtor. He by attorneys about that claim stating represented that he had the letter writing he made why did not explain for He many years. Kuhlmans receiving the testified that upon those statements tell he did not for a of the realtor commission claim in the transac- had not them Kuhlmans that he $10,000 in had over testified that he billed He also tion. attorney corporation fees to the that as a organized he had "vehicle” to new purchase property on behalf of his clients and that he agree would that the Kuhhnans were not "particularly sophisticated business people.”
At the conclusion of the before the Trial hearing Board, the attorney for the Accused observed that the sales "smells,” contract but that everything contended that "not violation”; smells is a "the attorney] [an fact commits to someone necessarily does not make life,” you his for there was "no ethical to tell obligation get them to attorney.” another It may be that even if the relation- attorney-client ship between the Accused and Mr. and Mrs. Kuhlman had been terminated prior transaction, in which the Accused represented purchaser of their as the attorney for the purchaser, with the result that Mr. and Mrs. Kuhlman were then no more than clients of former time, the Accused at that his conduct would nevertheless have been in view of our interpretation of DR 5- Banks, 105 in In re (1978). Under case, however, the facts of this we find that at the time of the transaction involving the sale of Mr. and Mrs. Kuhl- man’s they were still the clients of the Accused and that he was still undertaking to act as in attorney their transaction. stated,
As previously Mr. and Mrs. Kuhlman tes- tified that the Accused had attorney acted as their for years matters, several in various including at- previous to sell this tempts property; in this transaction understood that he was also as acting attorney, their well attorney for the purchaser, and that he did not inform them to the contrary. Although much of that testi- mony was denied he did not in his testi- undertake mony explain either the statements his letter subsequent the effect that he had their been many years or his refusal subsequent permit to be taken deposition relating to that transaction upon the ground that he was then attorney for both Mr. and Mrs. Kuhlman and for the purchaser on testify deposition would violate the attorney-
client privilege.
648 statements this record we conclude that those
On regarded the Accused be as by and that conduct must the sale of the by Mm that in the transaction for admissions by Mrs. he to owned Mr. and Kuhlman undertook time attorney them as their at the same represent another as the represent purchaser undertook client the property. may
We agree with contention 190, created, "[o]nce from Ethics quoting OpiMon of a not continue in relationsMp lawyer client does is the of either "[i]t perpetuity” perogative respon- certain relationship, although terminate after the termi- sibilities continue to rest 190, mayWe also which agree OpiMon nation.” Ethics as follows: quoted by is the Accused his brief again " lawyer-client relationship ordinarily not is one which, any its of its inception, at has formalized statement terms, under or conditions which it will continue. if there is act or docu- Frequently, usually, express not no Inception, ment wMch commences or terminates it. exist- implied relationship and termination of the are often ence ” all of only from the facts.’ (1980). Galton, 565, 581, In re 289 Or P2d 317 See also 615 believe, however, not the termination We do relationship between the Kuhlmans attorney-client can the facts of this properly implied from case, of the in view admissions particularly referred to. previously 5-105(C), of DR respect provisions
With forth, testimony we also conclude from the previously set that he represent it not "obvious could adequately the Kuhlmans although the interest each” and a client knew that was also purchaser apparently did after representation not "consent of the effect of such possible full disclosure judgment of Ms independent professional on the exercise each,” by the DR 5- required provisions on behalf 105(C) an undertakes in situations in wMch Porter, In re "multiple clients.” See also (1978), re Boivin, 525, 584 P2d 271 517, quoting 744 from (1975). Or
649
on several occa
court has
Beginning
involving
attorneys
for conduct
reprimanded
sions
See,
Hedrick,
In re
e.g.,
conflicts of interest.
*9
In re
(1971);
276,
Zafiratos,
259 Or
Or
(1974); Hershberger, supra. and In re supra; in this our review of the entire record Based case, admissions letter including by conduct, are unable to the conclusion escape we involving to act as in the transaction undertaking had a the sale of the Kuhlman property, that, flagrant conflict of interest which was so clear and our would not be We hold opinion, reprimand appropriate. this case discipline under the facts of appropriate suspended is that the Accused be from the of law practice Oregon thirty a member of the State Bar for a period from the date of the the mandate in this case. days entry of against State Bar is also awarded judgment the Accused for costs incurred it in this proceeding.
TANZER, J., concurring.
I I concur. write because I believe the separately of the accused to as to sufficiently egregious conduct suspension longer days. warrant duration than 30 J., joins in this Campbell, opinion.