P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Scharfstein, 19 DB Rptr 97 (2005)
A. Duty Violated. The Accused violated his duty to his clients to pursue
their matters diligently and his duty owed as a professional to cooperate fully with
the Barin an investigation of his conduct. Standards, §§ 4.4, 7.0.
B. Mental State. The Accused acted knowingly in neglecting his clients’
matters. He failed to keep the clients informed as to the status of their matters or to
take the actions necessary to conclude the matters, despite numerous reminders from
the clients of his obligation to do so. A knowing state of mind is “the conscious
awareness of the nature or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a particular result.” Standards, at 7.
C. Injury. AMCO and Allied experienced frustration in not being able to
communicate with the Accused about the status of their cases. AMCO did not suffer
financial injury from the Accused’s failure to pursue its claim because the uninsured
motorist against whom AMCO wished to proceed had given a false name at the
accident site and the Accused could not locate him. Allied did not suffer financial
injury from the Accused’s failure to pursue its claim because the corporate insured
against whom Allied wished to proceed was insolvent and no longer in business.
The Sumpters were actually injured by the Accused’s delay in concluding their
stepparent adoption. The Sumpter family, and especially the child who was the
subject of the adoption proceeding, suffered great anxiety and frustration at the delay
in what should have been a relatively short-term proceeding. The Sumpters were not
actually injured with respect to the substantive resolution of their medical malpractice
claim. They did, however, suffer anxiety and frustration at being unable to reach the
Accused or to resolve the matter and were exposed to potential injury in that their
claim could have been barred by the statute of limitations. Ultimately, the Accused
completed both the stepparent adoption and the medical malpractice claim.
The Oregon State Bar and the Accused’s clients were actually injured by the
Accused’s failure to respond to the inquiries of Disciplinary Counsel’s Office in that
the investigation and resolution of his clients’ complaints were delayed, and it was
necessary to refer the AMCO and Allied cases to the LPRC for investigation by a
member of that committee.
D. Aggravating Factors. Aggravating factors include:
1. Pattern of misconduct. Standards, § 9.22(c);
2. Multiple offenses. Standards, § 9.22(d);
E. Mitigating Factors. Mitigating factors include:
1. Absence of a prior disciplinary record. Standards, § 9.32(a);
2. Absence of a dishonest or selfish motive. Standards, § 9.32(b);
3. Personal or emotional problems. Standards, § 9.32(c). During the
relevant times herein, the Accused and his wife had to terminate his wife’s five-
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