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Cite as In re Marsh, 19 DB Rptr 277 (2005)
25.
After about late July 2004, the Accused failed to adequately communicate with
Shaidaee, or representatives of the Multnomah County District Attorney’s Office,
Office of Support Enforcement, and failed to take adequate action to advance and
protect Shaidaee’s interests and objectives.
26.
On or about October 28, 2004, Shaidaee terminated the Accused’s
representation. Thereafter, the Accused failed to file a notice or motion with the court
for permission to withdraw. Nor did the Accused return any portion of the fee
Shaidaee had paid him even though the legal matter was not complete. Shaidaee also
asked the Accused for his file, but the Accused did not promptly deliver all papers
and property that Shaidaee was entitled to receive.
27.
The Accused admits that the aforesaid conduct constituted collecting an
excessive fee; failure to refund promptly the unearned portion of a fee; failure to
properly withdraw upon discharge; neglect of a legal matter; and failure to promptly
deliver client property as requested by the client, in violation of DR 2-106(A), DR
2-110(A)(3), DR 2-110(B)(4), DR 6-101(B), and DR 9-101(C)(4) of the Code of
Professional Responsibility.
Sanction
28.
The Accused and the Bar agree that in fashioning an appropriate sanction in
this case, the court should consider the ABA Standards for Imposing Lawyer
Sanctions (hereinafter “Standards”). The Standards require that the Accused’s
conduct be analyzed by considering the following factors: (1) the ethical duty
violated; (2) the lawyer’s mental state; (3) the actual or potential injury; and (4) the
existence of aggravating and mitigating circumstances. Standards, § 3.0.
A. Duties Violated. In the above-described matters, the Accused violated
his duties to his clients, the public, and the profession. Standards, §§ 4.1, 4.4, 4.5,
4.6, 7.0.
B. Mental State. The Accused’s conduct demonstrates knowledge and
negligence. “Knowledge” is the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective to accomplish a
particular result. “Negligence” is the failure of a lawyer to heed a substantial risk that
circumstances exist or that a result will follow, which failure is a deviation from the
standards of care that a reasonable lawyer would exercise in the situation. Standards,
at 7. The Accused knew or should have known that he was not properly handling,
or maintaining complete records of, clients’ funds. The Accused knew that he was
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