In re Starr

FILED: January 23, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

In Re Complaint as to
the Conduct of

DENI STARR,

Accused.

(OSB 94-145; SC S41967)

In Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted April 29, 1997.

Deni Starr, Portland, argued the cause and filed the briefs in propria persona.

Jane E. Angus, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM

The accused is suspended from the practice of law for a period of six months commencing on the effective date of this decision.

Gillette, J., filed an opinion concurring in part and specially concurring in part, with Van Hoomissen and Durham, JJ., joining.

PER CURIAM

This is a lawyer discipline proceeding. The Oregon State Bar (Bar) alleges that the accused violated DR 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), former DR 9-101(A) (1992) (failing to deposit all funds of a client into a trust account), and former DR 9-101(B)(1) (1992) (failing promptly to notify a client of the receipt of the client's funds). A trial panel of the Disciplinary Board found the accused guilty of violating those disciplinary rules and concluded that disbarment is the appropriate sanction.

Because of the extent of the sanction, this court must review the trial panel's decision. ORS 9.536(2); Rule of Procedure (BR) 10.1. This court reviews the trial panel's decision de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing misconduct by clear and convincing evidence. BR 5.2.

On de novo review, we conclude that the accused has violated former DR 9-101(B)(1) and former DR 9-101(A), but that the Bar has not met its burden of proof as to the charged violations of DR 1-102(A)(3). We further conclude that the appropriate sanction in this case is a six-month suspension.

FINDINGS OF FACT

The accused was admitted to the practice of law in Oregon in 1983. From 1983 to 1995, she practiced mainly in the areas of domestic relations and personal injury, and mostly in a solo practice. In late 1994, the accused entered into a stipulation for discipline, pursuant to which she was suspended from the practice of law for a period of 18 months, beginning January 1, 1995, for a series of disciplinary violations charged in an earlier proceeding. The accused was under that suspension at the time of the hearing in this matter.

We turn to the facts relating to the present charges. In early 1991, a shelter for battered women referred Charlotte Olson to the accused for representation in connection with a juvenile court proceeding concerning Olson's minor son. Olson paid the accused a $200 retainer under a written fee agreement to pay $50 per hour, plus expenses. Olson lost her job. The court then appointed the accused to represent Olson in the juvenile court proceeding, but Olson remained responsible for paying the accused for services performed before the appointment. The accused notified Olson by letter that she had incurred $258 in fees for that matter. Olson agreed to make payments of $50 per month on the juvenile court matter.

Olson had custody of her son. During the pendency of the juvenile proceeding, the child's father, Stephen Kilpper, took the child for an approved visit. He did not return the child to Olson. Instead, he left the state and filed for a change of custody in Texas.

Olson retained the accused to represent her in the ensuing custody dispute. Olson signed no written fee agreement, but she orally agreed to pay the accused $80 per hour. With Olson's permission, the accused hired a lawyer in Texas to seek dismissal of the custody proceeding there. Kilpper left Texas and moved to Florida. Again with Olson's permission, the accused hired an investigator to locate Kilpper, personally traveled to Florida, and obtained an order requiring Kilpper to return the child to Oregon. Olson eventually regained custody of her son.

By May 1992, the accused had billed Olson for $5,216.40 on the custody case. On July 1, 1992, Texas counsel was owed $540.62.

The accused also represented Olson in connection with a personal injury claim for assault against a boyfriend, Christopher Clair. On that matter, the accused represented Olson pursuant to a contingent fee agreement calling for the accused to be paid one-third of any amount collected if the case settled after the institution of an action, but before trial. The accused filed an action on Olson's behalf and obtained a default judgment against Clair for about $33,000.

The accused sought to collect the Clair judgment. As part of that effort, she obtained a continuing writ of garnishment against Clair's wages.

By letter dated March 31, 1992, the accused, on behalf of Olson, agreed to pay the Texas lawyer $100 per month beginning in May 1992 and to pay at a faster rate if money were collected on the Clair judgment. Olson also agreed to apply a portion of the money received from the Clair judgment against her outstanding bill with the accused.

As a result of the writ of garnishment, the accused received five checks from Clair's employer. Each check was made payable to Olson, and the accused endorsed each one, "Deni Starr for Charlotte Olson." The following chart shows the date of each check, the amount, the deposit date, and where the check was deposited: Date of Check Amount Deposit Date