THE "LETTERS TO THE EDITOR" ARE BELOW THE EDITORIAL
|Ethics and the Law in Oregon, spotlighted by a local lawyer|
We have heard comments for quite some time, from folks in the legal profession, suggesting that large law firms in Oregon get preferential treatment by the Oregon Bar Association over the small firms and individual practitioners. Comments like that are easy to dismiss as simply sour grapes – but now, a lawsuit claims the same thing.
In a news report dated Friday, February 27, 2015, and filed by reporter Annie Ellison under the headline “Federal Suit Against Oregon State Bar Alleges Favoritism and Discrimination”, it is stated that “Software developer and former VP of Marketing for Oracle Corp. James Reilly and Victoria Jelderks filed the suit Feb. 26 against the Oregon State Bar Association and general counsel Helen Hierschbiel. ‘If you are from an influential firm in the State of Oregon, you can do whatever you want and the bar can dismiss it,’ Reilly said. ‘As a consequence, these big firms are breaking the law with impunity.’”
Okay, it could still be sour grapes. But local attorney Bill Henderson has shared information that underlies complaints he himself has made against a couple of prominent lawyers, which the Oregon Bar Association has been dragging its heels in pursuing, despite what appears to us to be rather egregious violations of professional ethics by both of them. It sure appears, from Henderson’s documentation, that that lawsuit by Reilly and Jelderks may have a little merit.
Henderson, based in Sellwood, was an attorney who petitioned the court to appoint a personal representative for an estate. The main asset of the estate was a wrongful death lawsuit being handled by a prestigious Portland attorney named Paul Krueger. Krueger eventually settled a claim against Clackamas County for $99,999.99 and a claim against American Family Insurance for $30,000.00. Upon receipt, the settlement proceeds were deposited in Krueger’s lawyer trust account.
It should be explained at this point that not one cent of that money was to be disbursed until the court approved the disbursement. However, immediately upon receipt of the settlement proceeds in July and August of 2010, Krueger paid himself attorney fees totaling $43,000. “Those payments were illegal fees; the receipt was unethical conduct,” says Henderson. To make matters worse for Krueger, in January of 2012, the probate court finally approved the attorney fee for Krueger – in the amount of only $26,000.
Krueger’s conduct began to come to light during the summer of 2011, when an estate creditor raised a question about the Settlement Proceeds and “where they were deposited, how they were used, and their last known location(s)”.
In August of 2011 Henderson, realizing Krueger was never going to file for court approval of the settlement, filed the petition asking the court to approve the settlement, and to approve a $43,000 contingency fee for Krueger. Krueger filed an affidavit with the court in support of the request for his attorney fee in which he quoted the language of a written contingency fee agreement. (Oregon law requires a lawyer working on a contingency basis to have a written fee agreement.)
Krueger sent the draft of his fee request to Henderson to review. Henderson suggested Krueger attach a copy of his fee agreement to his request to the court. When Krueger submitted his request without a copy of a fee agreement, Henderson realized Krueger did not have such a written agreement.
We are quoting from public records. The following month Henderson amended the petition for court approval of settlement of the claims. The petition requested a reduced fee for Krueger, justified in part because of the lack of a written contingency fee agreement.
A contested court hearing on Henderson’s amended petition began in mid-December of 2011. At that hearing, there was a declaration by Krueger’s legal assistant (“Rogers’ Declaration”) that “the Settlement Proceeds had been deposited into a lawyer trust account when received and the entire amount ($129,999.99) was still in a lawyer trust account created for the Settlement Proceeds, ready to be distributed.”
Krueger testified during the hearing and made statements under oath which did not correctly disclose the way the money had already been handled, including that he had paid his claimed attorney fees out of the trust account in the summer of 2010.
So, to summarize, the money was taken from a lawyer’s trust account without permission and in violation of how money in a trust account is to be handled – and then under oath this was misrepresented. On top of that, the probate judge determined Krueger in fact did not have a written contingency fee agreement, and approved an attorney fee for Krueger in the amount of only $26,000, which was substantially less than the $43,000 he had earlier removed from his lawyer trust account as his fees.
Things unraveled further for Krueger when the Oregon State Bar began investigating him for unethical conduct in regards to various actions and inactions related to the wrongful death claim. Krueger hired a prestigious attorney named Allison Martin Rhodes, currently a partner in the prestigious law firm Holland & Knight, and described as “an adjunct professor at Lewis & Clark Law School, where she teaches legal ethics with Holland & Knight Partner David Elkanich”.
At one point, at the suggestion of Henderson, Oregon State Bar Assistant Disciplinary Counsel Kellie F. Johnson requested copies of Krueger’s trust account records. Rhodes in response wrote that any allegations that Krueger had misappropriated trust funds were false, and submitted two almost entirely redacted bank statements that showed ONLY that $30,000 had been deposited on July 12, 2010, and that $99,999.99 had been deposited on August 2, 2010.
Since there was no question that Krueger had received and deposited these funds, this was not relevant to the investigation. And since she had to have seen the full bank statements in the process of creating the heavily redacted versions, with her legal background in ethics, she would have seen at once that the money had not stayed in the account. But this apparently did not trouble her at the time.
Boldly, Rhodes concluded her letter, “If you need further detailed records, please let me know. Other than simply thinking the worst of everything, there was zero basis for Mr. Henderson to allege that Mr. Krueger did not account these funds properly. I hope that you take that into account when considering the credibility of Mr. Henderson’s other assumptions, allegations, and leaps of logic.” At first, that seemed to satisfy the Bar, which then did not pursue the matter further.
But, no doubt to the dismay of both Krueger and Rhodes, Henderson pressed the Bar to get those “further detailed records”, and the Bar did request them. And those unredacted bank records indeed showed that Krueger had indeed paid himself the illegal and excessive fee, exactly as Henderson had contended.
In submitting the unredacted bank records, Rhodes wrote, “Please note that in prior correspondence it was stated that the settlement funds had been retained in trust during the relevant time period. As you will see from the attached records, that statement was incorrect. The settlement funds arrived in two payments in July and August of 2010 and attorney fees and costs were processed at that time. The error was discovered in October of 2011 when the previously described interest bearing trust account was created and the funds were restored to trust at that time.”
So, a prestigious attorney was caught with his hand in the cookie jar, and the prestigious attorney representing him – one noted as an ethics attorney, and a teacher of legal ethics to future attorneys at a local college – blandly overlooked her previous incorrect assertions and seemed satisfied with this ethical breach. When Krueger was at risk of being found out, he simply put the money back. Case closed?
This led attorney Henderson to file a complaint with the Oregon State Bar against Allison Rhodes on December 26, 2013.
Henderson said in the letter: “Rhodes clearly took a calculated risk that her November 2, 2012, letter and exhibits would thwart the OSB investigation into egregious ethical violations by her former client, Krueger. Rhodes clearly intended OSB to rely on the falsified records in addition to Rhodes’ fraudulent representation that further detailed records were available that would show no unethical activity in Krueger’s trust account.”
He concluded the complaint with, “Rhodes’ behavior cannot be justified and should not be tolerated.”
The Oregon State Bar did not act on the complaint against Rhodes. In fact, Henderson eventually discovered the Bar never even sent her a copy. So recently he sent it to her himself, to explain his refusal to provide her unsupervised access to original documents.
However, it should be noted that various charges against Krueger are finally set for a disciplinary hearing in October of 2015. And, after a hiatus, Rhodes is once again defending him.
So, it seems to us, the federal lawsuit against the Oregon State Bar we began this story with certainly would seem to have some merit. Let’s see what happens next.
A tree branch falls – upon a truck
A large tree branch fell on S.E. 17th Avenue between Tolman and Yukon [in Westmoreland] on June 8 on 7pm, and hit a parked vehicle. The truck wasn’t ours; it was parked across the street for most of the day. I called the urban forester, and my son, Simon Katz Carter, took pictures – here is one of them. Neighbors started to cut and recycle small portions of the tree, and the city had removed the rest by dusk.
EDITOR’S NOTE: June 8th was the hottest day of the year to date, topping out at 92.5 degrees Fahrenheit in Westmoreland. There was a light breeze all right – but it was probably mostly the high heat that led to the surprise this truck’s owner received.
Helpful neighbors and firefighters
I want to express my gratitude to our terrific neighbors and firefighters. My husband, Eric, was riding his bike home along Spokane Street on the afternoon of Wednesday, March 27, when the chain snapped. He was thrown to the ground, and his shoulder was badly dislocated.
Three people stopped, helped him up, called 9-1-1, and waited until help arrived. He was in too much pain to get their names. Our neighborhood firefighters arrived before the ambulance did, tended to him, and then kindly took his bike to our house and stowed it safely in the yard.
I was working in Salem that day, and am grateful others were here to help. Eric is on the mend and will be fine.
On another note, some other nice people found the tag of one of our dogs and took the time to drop it by our house.
We’ve lived in Sellwood for 13 years and love it for so many reasons. Knowing we have great neighbors is at the top of the list.
S.E. Malden Street
“Tree vandal” defended
Re: Last issue’s letter complaining of a “tree vandal” snapping off limbs hanging over the sidewalk: I think this man had every right to remove obstructions hanging over the sidewalks. Portland city code states trees are to be [at least] 7.5 feet above the walkway, but many are much lower, and present a hazard to pedestrians. Particularly at night, it’s nearly impossible to keep an eye out for overhead obstructions AND be vigilant about sidewalk breaks and heaves. In addition, many people let rose bushes and other shrubs sprawl onto the walkway.
Sidewalks are a public right of way, and the property owners who so lovingly planted those trees and shrubs are also responsible for keeping them safe and clear. (This means not only plants but leaves, snow, ice, standing water and dog poop). I have nearly been poked in the eye by low hanging branches many times, and when this happens, I snap the things off too.
If this is "vandalism", then you, tree owners, can prevent it by keeping your foliage properly trimmed. Keep our neighborhoods walkable!
This letter is in response to the June issue letter regarding “street tree vandals”. While I don’t condone people taking enforcement of rules into their own hands, after walking through our Sellwood neighborhood I can certainly understand how frustrating it is to dodge overgrown trees and other landscaping. Portland has a requirement (Title 29 of Portland City Code) for Property Maintenance that states, in part, that sidewalks, streets, and other rights of way should be kept free of anything that obstructs or interferes with the normal flow of pedestrians or vehicular traffic. Instead of being annoyed with a pedestrian trying to bushwhack his way through our neighborhood sidewalks, residents should take a few minutes to look at their own landscaping. Why don't we take pride in our neighborhood and be responsible citizens? Trim back shrubs that have grown into the sidewalk, and clip tree limbs that hang lower than 7.5’ (the city requirement). The same can be said of trees that encroach on the streets. There are some homes in our neighborhood where you can’t park a car along the curb due to the trees and shrubs extending out into the roadway. The city requirement is that streets must be clear of obstructions to vehicle movement and parking from edge to edge and to an elevation of 11' above street level. I can only begin to imagine how people would be up in arms if a child, pet, or cyclist might get injured by overgrown shrubs or tree limbs, but if a “normal” person expresses frustration about the same issue then they are the problem.
[Name withheld by request]
Thanks to a civic-minded business
When a business that is a fixture in a neighborhood is asked to donate to that neighborhood – as they often are – they almost always do. Some go above and beyond the request, in the spirit of community.
Woodstock Hardware recently added a new garden center, and consequently was asked by the Woodstock Community Business Association to donate plants for the street sidewalk pots on S.E. Woodstock Boulevard that the WCBA maintains. They came through with flying colors – expediting an order to be filled before the busy Memorial Day weekend. In fact, they donated so many plants that it turned out there were actually more than needed, so of course those were returned with thanks.
It is so nice to know that in our community we have businesses like Woodstock Hardware that are willing to step up for the neighborhood they serve. It is a great reminder to all of us to “grow where you are planted”. Thank you, Woodstock Hardware, for making our street more beautiful!
City Sanitary Service
Developer to cut down Eastmoreland Sequoias
It has been belabored how beautiful and majestic the gigantic redwoods on Martins Street are. [But] I don't know if the value of those trees has been considered. Beyond wildlife habitat, oxygen production, cooling shade and scenic beauty, the trees sequester carbon dioxide. Using common formulation it is calculated that each tree has sequestered
229,657 pounds of carbon dioxide, or about 2,550 pounds a year. The removal of these trees will contribute to global warming, not only by releasing the 344 tons of carbon dioxide back into the atmosphere, but by eliminating the future carbon dioxide sequestration that could be provided by this long living species. Sequoia Giganteum can live over 1,500 years, so the potential benefit to the global climate is significant. It is my understanding that the City of Portland acknowledges global climate change and, like 99% of the scientific community, places the cause on emissions of carbon dioxide.
It is my understanding that the City of Portland has accepted $4,800 to allow the removal of these trees. Purdue University published an article – https://www.extension.purdue.edu/extmedia/fnr/fnr-473-w.pdf – in which a formula is provided for the valuation of trees. Using this formula the three massive redwoods could be valued at $326,000 each. Rounding the value of the three giants to [a total of] $900,000 finds that the City of Portland is shorting the community of a valuable asset by a considerable margin.
These trees are landmarks, placemakers and icons that cannot be replaced. Allowing their destruction contributes to global climate change and eliminates almost a million dollars of value from the community. Please stop the removal of the giant Sequoias at 3846 Martins Street.
Landscape Architect, RLA, ASLA, CPESC
|Tucker Maxon students flocking around the celebrity truck during its May 29 visit to the school.
Tucker Maxon students get a surprise
“Optimus Prime” visited Tucker Maxon School on S.E. Holgate Boulevard on Friday, May 29, in the late morning. The “Transformers: Age of Extinction” movie star arrived with two Portland Police motorcycle escorts to interact with the students. The personal appearance at our nonprofit school was courtesy of Portland-based Daimler Trucks North America, which manufactured this particular truck – which provided the experience to benefit the school’s fundraising for deaf children’s financial aid. Tucker Maxon is a school for deaf, hard of hearing, and hearing children, and teaches listening and spoken language, rather than sign language. The public is always welcome to visit. And our thanks to Daimler for this memorable visit to the school.
Tucker Maxon School
S.E. Holgate Boulevard
Tree topping for public utilities troubles Eastmoreland
Under Urban Forestry’s own guidelines, pruning trees by topping them is not permitted. And planting trees that grow to 35 feet is expressly permitted in parking/planting strips under high voltage power lines. Tupelo trees fall in this category, and so Urban Forestry granted permits to the homeowners in the 3100 block of S.E. Tolman to plant three Tupelos in the parking/planting strip. Century Link applied for and received a blanket pruning permit from U.F. in connection with its installation of zero voltage communication lines at 16 feet. Pursuant to its permit, Century Link topped all three Tupelos down to 12.5 feet, essentially ruining all three. Century Link has continued such improper pruning in S.E. Portland notwithstanding the filing of two formal complaints with U.F. We ask your readers to document and report such pruning by Century Link, which uses a subcontractor to install the communication lines, so that we may put additional pressure on U.F. to review and hopefully revise the Century Link permit. Reports may be made to Catherine Mushel, Chairperson of the ENA Tree Committee, at email@example.com.
Dennis E. Stenzel
ENA Tree Committee
Monarch Butterflies in Oregon this year
Portland is not normally on the Monarch migration path, at least for large numbers of butterflies, but warm temps at the beginning of June brought more than the average number to the Portland area. Nationally, monarch numbers have dropped dramatically in the last decade for a number of reasons, so it is very exciting to see them here. A female monarch laid eggs on the milkweed in my yard (in Westmoreland), and I have been raising the caterpillars indoors since they hatched. Dr. David James, a Monarch expert at Washington State University, will send tags when the caterpillars have pupated, and when they emerge they will be tagged and released. This is a great reminder to local gardeners to include milkweed in their gardens; it is the only plant Monarch caterpillars can eat. I only have two plants and never expected to see eggs or caterpillars, but here they are! Several grade schools in the Portland area follow the Monarch migration in the fall, so this should be especially interesting to science teachers, and of course anyone who loves butterflies.
S.E. 20th Avenue
Thanks from Llewellyn Elementary
On Friday June 5th Llewellyn Elementary School yet again had an old fashioned carnival. This event is not a fundraiser, but simply a community minded celebration.
It’s a chance for us all to come together and make merry before the start of summer.
This event was well attended and well represented. We had businesses, parents, children and even quite a showing of Llewellyn Alumni. This is a major effort, and takes a lot of support; and we were fortunate to have the foundation set by Rachel Ginocchio, former Ringmaster. I’d like to publicly thank our army of volunteers, and businesses – some new, and some repeated proponents.
Among these businesses were: Atlas Scoops, Bike Commuter, Bishops, Blue Kangaroo, Circus Cascadia, Collage, Dance With Joy, Feastworks, Foot Traffic, Fuego, Heiberg Garbage and Recycling, Kim’s Taekwondo, Moreland Farmer's Market, Nectar, New Seasons, Oodles 4 Kids, OnPoint, Papa Murphy's, Paul Mitchell, Rose City Coffee Company, Sellwood Faith Community, Savory, Snap Fitness, Sock Dreams, Thrive, Tom Dwyer, and Wells Fargo. Thank You!
on behalf of the Carnival Steering Committee
Summer lunches for kids are coming
The end of the school year should be a time for fun, relaxation, and exploration for children. However, that's not the case for thousands of kids here in the metro area and millions nationwide. 57 percent of Portland-area children qualify for free and reduced-price meals during the school year. To fill the summertime meal gap, Portland Parks & Recreation (PP&R) joins forces with Partners for a Hunger-free Oregon (PHFO), Bank of America, local school districts and other partners and local businesses to present the Summer Free For All Summer Playgrounds and Free Lunches program. The goal is to reduce what's known as food insecurity. The partners have distributed half a million free meals over the last five summers. For the summer of 2015, PP&R and its partners expect to serve around 111,000 free lunches, and to also provide supervised games and playground activities. The need is there, even if it's not always evident.
Portland Parks and Recreation
Putting garbage in other people’s receptacles
Last night while throwing my garbage away in my apartment dumpster in Sellwood, two women with Basset Hounds walked over and yelled for me to keep the gate to my dumpster open. I told one of them no. The other woman told her not to listen to me, and she went and threw her dog poop in my dumpster.
I told them that I have two dogs, and I never would throw my garbage in anyone else’s can. They both said, “**** you! At least it’s not in the street!” I couldn't believe it.
I told them that I was going to follow them home and throw my dog crap in their garbage can. They said, “I don’t see what the big **** deal this is! It’s none of your damn business.”
my business. I pay rent, and that rent pays for water, sewer, garbage, and recycling.
I am offended. I carry my dogs’ poop all around the neighborhood until I come home.
I have witnessed people running by with their bags of dog crap and throwing them over the protective gate onto the ground next to our dumpster. I have to clean that up. We all pay for our garbage service, why is it OK to throw your own garbage in someone else's can?
This is my home. I have lived in Sellwood a few years, and get along with all my neighbors. I even got along with these elderly ladies who so rudely threw the F word around my daughter, who was holding our dogs at the time.
EDITOR’S NOTE: The is an ongoing problem, and not just in Sellwood, about which we have had mail before; some people, who evidently were not brought up to know or observe the Golden Rule, not only seem to think nothing of leaving little bags of dog waste on other people’s lawns or sidewalk, or in other people’s garbage cans, not only are not apologetic when caught at it, but get nasty about objections when confronted. The truth is, they don’t want to carry it around, and they’d rather stink up others’ garbage cans than their own. And it’s not just animal waste. Lately, somebody has been dumping broken asphalt in public garbage cans around Inner Southeast, apparently to avoid paying for disposing of it properly. To all to whom this applies: It’s simple. The Golden Rule. Look it up.
Correction concerning Bybee Station art
Nice piece about the Bybee [MAX station] art. However, the Bybee art is part of TriMet’s percent for art program. It’s not the City of Portland’s program.
TriMet Media Relations
EDITOR’S NOTE: We had no doubts that TriMet was selecting and funding the art! We did think the City of Portland had a requirement for some public art in all such projects by TriMet and Multnomah County within the City of Portland. If there is no such requirement, we regret the error.
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