In Re Complaint as to the Conduct of Yacob

Citations: 860 P.2d 811; 318 Or. 10; 1993 Ore. LEXIS 154Docket: OSB 89-34, 90-61, 90-65, 91-4, 92-36; SC S39964

Court: Oregon Supreme Court; November 4, 1993; Oregon; State Supreme Court

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In the case of In re Complaint as to the Conduct of Yosef Yacob, the Supreme Court of Oregon addressed multiple disciplinary violations by the accused, who admitted to seven violations but argued they were not intentional. The Oregon State Bar (Bar) alleged additional violations, which the accused denied, and he contested the recommended two-year suspension. The Bar sought at least a two-year suspension, suggesting disbarment could also be appropriate.

The court ultimately found the accused guilty of 13 violations of disciplinary rules or statutes and decided on disbarment. The violations stemmed from four categories of incidents, with the court outlining the process for determining guilt and assessing sanctions.

Significant incidents included acts of violence: 

1. **Menacing Another**: The accused threatened the brother of a former employee with a loaded shotgun after previously kicking the former employee. He pleaded no contest to a charge of menacing, leading to a conviction of a misdemeanor involving moral turpitude, thus violating ORS 9.527(2).

2. **Kicking Another**: The accused physically assaulted the former employee after their affair ended, kicking her in the face multiple times during a confrontation while she was seated and unarmed.

The court found the accused's claims of lacking intent in these violent acts unconvincing, affirming that he intentionally placed others in fear of serious harm and acted with willful misconduct.

The accused resolved a criminal assault charge against a former employee through a civil compromise, not a conviction. The Bar has charged the accused with violating DR 1-102(A)(2) but he argues that the assault is unrelated to his professional conduct. Regardless of the outcome regarding the assault, the court intends to disbar the accused and will proceed to other charges. 

One significant charge involves false advertising, as the accused placed misleading advertisements claiming a law office at Swan Island, despite never securing a lease. His defense that he attempted to lease the space does not absolve him from violating DR 2-101(A)(1), as the advertisement directly pertains to his legal practice.

Additionally, the accused improperly withheld client funds in two instances. In the first case, after obtaining a refund for filing fees from a court, he endorsed the check payable to the client without notifying her and deposited it into his firm's trust account. This action violated multiple rules, including DR 1-102(A)(3) regarding dishonesty and DR 9-101(B) concerning client notification and fund management. The court noted that although there was no intent to misappropriate the funds, the accused acted without authority and engaged in misrepresentation, violating DR 1-102(A)(4). The court referenced prior cases to support its findings of dishonesty and lack of authority in his actions.

A lawyer, even when representing themselves, must adhere to the ethical standards of honest conflict resolution. In the case of In re Hopp, the accused lawyer's self-help actions were deemed inconsistent with these standards. The lawyer faced disciplinary violations for endorsing a client's name without consent on a refund check, placing the funds in their trust account without notifying the client or maintaining proper records. This behavior violated multiple disciplinary rules, indicating intentional deceit.

In a separate incident, a salaried lawyer associated with the accused inaccurately charged a client a flat fee of $150 to terminate a guardianship, which had already been terminated years prior. The actual client request was for assistance in designating a third party to manage the disabled nephew's social security payments. The client deposited over $3,300 into the firm's trust account, which the accused later withheld a portion from, believing more fees were justified due to the work involved. Despite knowing the client's request was limited and the funds rightfully belonged to the nephew, who was not their client, the accused denied wrongdoing regarding the excessive fee charged, asserting that the withheld amount remained in the trust account and was not personally withdrawn.

Leaving the funds in the trust account does not absolve the accused from the excessive-fee charge, as withholding the money violated DR 2-106(A) since the flat-fee agreement covered all work and no additional work was requested by the client. The case of In re Gastineau establishes that charging a second fee for work already compensated by a flat fee is prohibited. The accused intentionally withheld funds that belonged to the disabled nephew, demonstrating knowledge of wrongdoing. 

In a separate matter, the dissolution client terminated the accused's representation and filed a complaint with the Bar, which sought clarification regarding advanced costs. Although these costs were initially paid as filing fees, they were refunded to the accused's firm upon request. Unable to find the client's file, the accused created and submitted several documents to the Bar, falsely presenting them as genuine. These included a fee agreement suggesting variable fees if the case became contested and fabricated letters from a former employee regarding additional fees and the refund.

The Bar charged the accused with violations of ORS 9.527(1) and (4), DR 1-102(A)(3) and (4), and DR 1-103(C), which require truthful responses during disciplinary investigations. The accused argued that he did not misrepresent information, believing that the former lawyer had communicated about the refund and fee increase, especially given the client's deafness. He contended that even if the creation of documents constituted misrepresentation, it was not dishonest as he did not intend to mislead the Bar. The accused differentiated between negligent misrepresentation and intentional dishonesty, referencing In re Hiller to support his claim that his actions should not be deemed dishonest.

The court distinguishes between 'fraud, deceit, or misrepresentation,' stating that misrepresentation escalates to fraud or deceit only when intended to be acted upon without discovery. It found insufficient evidence that Janssen and Hiller intended to mislead; they expected to defend their actions rather than disguise them. However, lack of intent to deceive does not absolve them from misrepresentation, which can include nondisclosure. Citing In re Hedrick, the court emphasizes that presenting a will known to be false constitutes a disciplinary violation. It details that the accused submitted fabricated documents to the Bar, intending for them to be viewed as genuine, which constitutes an intentional and dishonest misrepresentation. This conduct is found to prejudice the administration of justice, thus violating DR 1-102(A)(3) and DR 1-102(A)(4). The court concludes that all charges related to the fabrication of documents are upheld. Regarding sanctions, the Bar advocates for a two-year suspension or disbarment, while the accused suggests a lesser suspension or reprimand. The court notes the accused's intentional mental state in committing the violations, emphasizing the seriousness of the misconduct as per the ABA Standards for Imposing Lawyer Sanctions.

A serious violation occurred involving the accused's duties to clients regarding their funds, honesty during investigations, and the public's expectation for peaceful dispute resolution. The misconduct exhibited a selfish motive for personal gain, constituting an aggravating factor under ABA Standard 9.22(b). A pattern of repeated misconduct against vulnerable individuals was noted, supported by ABA Standards 9.22(c) and (h). The accused's substantial experience in law (ABA Standard 9.22(i)) and a significant lack of candor during disciplinary inquiries (ABA Standard 9.22(f)) further aggravate the situation. The accused showed a failure to recognize the consequences of his actions on clients and the legal system, with the fabrication of documents deemed a critical violation. Attempts by the accused to mitigate the severity of his actions were found unpersuasive, particularly his diversionary explanations regarding the presence of a loaded shotgun in his vehicle, which did not mitigate the act of menacing. Although the absence of prior disciplinary actions was a mitigating factor (ABA Standard 9.32(a)), it was insufficient to counterbalance the severity and number of violations committed.

The accused has been disbarred effective immediately. Under ORS 163.190, menacing is defined as intentionally placing another in fear of imminent serious physical injury and is classified as a Class A misdemeanor. ORS 9.490 entrusts the board of governors, with state bar approval, to create enforceable professional conduct rules applicable to all bar members. DR 1-102(A) outlines professional misconduct for lawyers, including violating disciplinary rules, committing criminal acts that undermine honesty or fitness to practice, and engaging in dishonest conduct. DR 2-101(A)(1) prohibits false or misleading communications about a lawyer's services. A violation under ORS 9.527(4) requires willful deceit or misconduct, which was not charged. DR 9-101(B) mandates lawyers to notify clients of received funds and maintain complete records. Additionally, DR 2-106(A) bars lawyers from charging illegal or clearly excessive fees. An incident occurred where a staff member provided a file to a client without informing the accused, and there was a lack of communication regarding a refund and the need for additional fees. The court referenced In re Kneeland to emphasize lawyers' duty to uphold public confidence in the legal profession. While there is some indication of remorse from the accused regarding withholding funds, it remains unclear if this was sincere or motivated by concern over a client's testimony about financial struggles. The evidence of remorse is not convincingly established.