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

Cite as In re Nester, 19 DB Rptr 134 (2005)
Johnston in connection with the deaths described in paragraph 5 above. The Accused
undertook as a lawyer to represent Johnston in these proceedings.
7.
At all relevant times herein, the Accused owned an interest in Compliance
Advocates, LLC, a health care facility management consultant company. In or around
May 2001, the Accused, with Johnston’s permission, retained Compliance Advocates,
LLC to provide certain services in connection with the Accused’s legal representation
of Johnston.
8.
On December 5, 2001, Johnston and BENHA entered a consent order to
resolve the disciplinary proceedings described in paragraph 6 herein. The consent
order required Johnston to retain the services of a management consulting firm,
approved by BENHA, to perform a comprehensive evaluation of the management of
Sheridan Care Center and to report to BENHA the results of that evaluation and the
results of subsequent periodic reevaluations.
9.
Johnston selected, and BENHA approved, Compliance Advocates LLC to
perform the evaluations described in paragraph 8 herein. The Accused continued
thereafter to represent Johnston as a lawyer without first having obtained Johnston’s
consent to the continued representation after full disclosure of the potential adverse
impact upon the Accused’s professional judgment of the Accused’s ownership of the
company required by the consent order to report to BENHA the results of its
evaluation of Johnston’s nursing home and any failures by Johnston to comply with
its recommendations.
10.
The Oregon State Bar received a complaint concerning the Accused’s conduct
on May 20, 2002. On July 3, 2003, in the course of the Disciplinary Counsel’s
investigation of this complaint, the Accused represented that before Johnston entered
into an agreement with Compliance Advocates LLC to provide the evaluations and
reports to BENHA required by the consent order described in paragraph 8 herein, the
Accused provided Johnston with “information orally and in writing regarding
potential conflicts as well as identifying the principals of Compliance Advocates,
LLC. This included advice in writing to seek independent legal counsel. . . .” Taken
as a whole, these representations were false in that the Accused had not disclosed a
possible lawyer’s self-interest conflict to Johnson and had rendered no written advice
to seek independent counsel. Because the Accused failed to review her file in the
matter, she did not know the truth or falsity of the representations when she made
them.
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