Phillip Gilbert Final by mikeholy


									                                     IN THE SUPREME COURT
                                     OF THE STATE OF OREGON

In re:                                       )
Complaint as to the Conduct of               )        Case No. 03-34
PHILLIP C. GILBERT,                          )
               Accused.                      )

Counsel for the Bar:                 Amber Bevacqua-Lynott
Counsel for the Accused:             Christopher R. Hardman
Disciplinary Board:                  None
Disposition:                         Violation of DR 1-102(A)(3). Stipulation for Discipline.
                                     30-day suspension.
Effective Date of Order:             November 1, 2003

      This matter having been heard upon the Stipulation for Discipline entered into by the
Accused and the Oregon State Bar, and good cause appearing,
      IT IS HEREBY ORDERED that the stipulation between the parties is approved and the
Accused is suspended for 30 days, effective November 1, 2003, for violation of DR 1-102(A)(3).
         DATED this 29th day of October, 2003.
                                             /s/ Dwayne R. Murray
                                             Dwayne R. Murray, Esq.
                                             State Disciplinary Board Chairperson
                                             /s/ Michael R. Levine
                                             Michael R. Levine, Esq., Region 5
                                             Disciplinary Board Chairperson

                             STIPULATION FOR DISCIPLINE
       Phillip C. Gilbert, attorney at law, (hereinafter, “the Accused”) and the Oregon State Bar
(hereinafter, “the Bar”), hereby stipulate to the following matters pursuant to Oregon State Bar
Rule of Procedure 3.6(c).
        The Bar was created and exists by virtue of the laws of the State of Oregon and is, and at
all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9, relating
to the discipline of attorneys.
        The Accused was admitted by the Oregon Supreme Court to the practice of law in
Oregon on September 18, 1992, and has been a member of the Oregon State Bar continuously
since that time, having his office and place of business in Multnomah County, Oregon.
        The Accused enters into this Stipulation for Discipline freely and voluntarily. This
Stipulation for Discipline is made under the restrictions of Bar Rule of Procedure 3.6(h).
        On April 11, 2003, the State Professional Responsibility Board authorized formal
disciplinary proceedings against the Accused for alleged violation of DR 1-102(A)(3) of the
Code of Professional Responsibility. The parties intend that this stipulation set forth all relevant
facts, violations and the agreed-upon sanction as a final disposition of this proceeding.
                                       Facts and Violation
        The Accused represented Larry Tuttle (“Tuttle”) in a personal injury claim arising out of
an auto accident. Days before the statute of limitations was set to expire, without the knowledge
or authority of Tuttle, the Accused represented to the opposing party’s insurance company
(hereinafter “Nationwide”) that he had authority to settle the claim for $23,500. The following
day, without the knowledge or authority of Tuttle, the Accused settled the claim and confirmed
the settlement in a letter to Nationwide.
      The Accused admits that, by engaging in the foregoing conduct, he violated DR 1-
102(A)(3) of the Code of Professional Responsibility.
       The Accused and the Bar agree that in fashioning an appropriate sanction in this case, the
Disciplinary Board 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 attorney’s mental state;
(3) the actual or potential injury; and (4) the existence of aggravating and mitigating
       a.      Duty Violated. The Accused violated his duty of candor to the client pursuant to
               Standard § 4.62. He also violated his duty to the public to maintain personal
               integrity. Standard § 5.13.
       b.      Mental State. The Accused acted knowingly when he made material
               misrepresentations to the insurer that he had Tuttle’s authority to settle. He also
               acted knowingly when he settled the matter on behalf of his client, having failed
               to previously reveal material information to his client. “Knowledge” 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 p. 7.
       c.     Injury. Injury can be either actual or potential. In this case, there was actual
              injury to Tuttle, in that his personal injury claim was initially settled for an
              amount below its value. Tuttle was required to obtain new counsel and make a
              claim against the Accused’s malpractice insurance to make himself whole.
       d.     Aggravating Factors. Aggravating factors include:
              1.      Substantial experience in the practice of law, the Accused having been
                      admitted to practice in Oregon in 1992. Standards § 9.22(i).
       e.     Mitigating Factors. Mitigating factors include:
              1.      Absence of a prior disciplinary record. Standards § 9.32(a).
              2.      Full and free disclosure to disciplinary board or cooperative attitude toward
                      proceedings Standards § 9.32(e).
              3.      Good character or reputation. Standards §9.32(g)
              4.      Remorse. Standards § 9.32(l).
       The Standards provide that a suspension is appropriate where a lawyer knowingly
deceives a client and causes injury or potential injury to the client. Standards § 4.62. The
Standards also suggest that a reprimand is generally appropriate when a lawyer knowingly
engages in other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that
adversely reflects on the lawyer's fitness to practice law. Standards § 5.13.
        The Disciplinary Board has previously authorized short-term suspensions in cases where
lawyers have settled claims without the knowledge or authority of their clients. See, e.g., In re
Pfister, 15 DB Rptr 16 (2001) (120-day suspension approved for, among other violations, the
attorney’s failure to inform his client that he had settled a disputed claim without his client’s
knowledge or consent and executed a satisfaction of judgment); In re Scanlon, 13 DB Rptr 91
(1999) (attorney suspended for 90 days for signing and notarizing a client’s name to a
satisfaction of judgment, in violation of both disciplinary rules and criminal statutes).
        Oregon case law suggests that a shorter suspension than was imposed in Pfister and
Scanlon is appropriate. See In re Fuller, 284 Or 273, 586 P2d 1111 (1978) (lawyer received a
60-day suspension for leading his clients to believe he had filed and obtained a default judgment
on their behalf, falsely representing to opposing counsel that he had authority to settle for his
clients, and failing to inform his clients that he had in fact settled the case). The Accused’s
conduct is not as egregious as that in Fuller in that the Accused did not make affirmative
misrepresentations to his client and did subsequently notify his client of the settlement, once
       Consistent with the Standards and Oregon case law, the parties agree that the Accused
shall be suspended for 30 days for violation of DR 1-102(A)(3), the sanction to be effective
November 1, 2003.
       This Stipulation for Discipline is subject to review by Disciplinary Counsel of the
Oregon State Bar. The sanction provided for herein was approved by the State Professional
Responsibility Board (SPRB) on September 6, 2003. The parties agree the stipulation is to be
submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
       EXECUTED this 17th day of October, 2003.
                                          /s/ Phillip C. Gilbert
                                          Phillip C. Gilbert
                                          OSB No. 92312
       EXECUTED this 17th day of October, 2003.

                                          OREGON STATE BAR
                                          By:/s/ Amber Bevacqua-Lynott
                                             Amber Bevacqua-Lynott
                                             OSB No. 99028
                                             Assistant Disciplinary Counsel

To top